Suspensión temporal del oficial Gabriel Vasquez

RECEIVED
July 23, 2021
12:21 p.m.
OF
STATE
FOUNDED
1839
MEMORANDUM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Joseph Chacon, Interim Chief of Police
DATE:
July 23rd 2021
SUBJECT:
Temporary Suspension of Police Officer Gabriel Vasquez #5378
Internal Affairs Control Numbers 2021-0083
Pursuant to the provisions of Chapter 143 of the Texas Local Government Code, Section
143.052, and Rule 10, Rules of Procedure for the Firefighters', Police Officers' and
Emergency Medical Service Personnel's Civil Service Commission, I have temporarily
suspended Police Officer Gabriel Vasquez #5376 from duty as a City of Austin, Texas
police officer for a period of three (3) days. The temporary suspension is effective
beginning on July 24th, 2021 and continuing through July 26th, 2021.
I took this action because Officer Vasquez violated Civil Service Commission Rule 10.03,
which sets forth the grounds for disciplinary suspensions of employees in the classified
service, and states:
No employee of the classified service of the City of Austin shall engage in,
or be involved in, any of the following acts or conduct, and the same shall
constitute cause for suspension of an employee from the classified service
of the City:
L.
Violation of any of the rules and regulations of the Fire
Department or Police Department or of special orders, as
applicable.
I
The following are the specific acts committed by Officer Vasquez in violation of Rule 10:
On January 26, 2021, at approximately 7:26 A.M., officers with the Austin Police
Department (APD) were dispatched to a "Disturbance Other" at a restaurant located on
South Congress Avenue. The call text stated that there was a verbal disturbance between
a male subject and other customers. Officer Gabriel Vasquez arrived on scene and learned
the subject had left the property. While Officer Vasquez was standing at the entrance to
the restaurant, the subject voluntarily walked back on the property towards Officer
Vasquez. The subject was placed into handcuffs and placed in the backseat of his patrol
unit. After Officer Vasquez verified that the subject had no outstanding warrants or any
previous criminal trespass notices at this restaurant, he was issued a criminal trespass notice
by the restaurant manager, informing him not to return to the property. Officer Vasquez
kept the subject in handcuffs in the back of his patrol unit transporting the subject away
from the location. Officer Vasquez eventually stopped his unit, removed the subject from
the backseat, removed the handcuffs from the subject and released him at another location.
On February 5, 2021, APD Internal Affairs (IA) unit received a Notice of Formal
Complaint from the Office of Police Oversight (OPO). The complaint submitted by the
subject stated:
That he was put in a police car, driven across town, and dropped off at a location
unknown to him.
Complainant also alleges the officer was rude, telling him, "You can find your
own way home" and "You need to stay where you belong."
Officer Vasquez acknowledged to IA that he failed to immediately release the subject after
the criminal trespass notice was issued. Moreover, without offering the subject a choice,
Officer Vasquez unilaterally chose to leave the subject handcuffed and to give him a
"courtesy transport. Officer Vasquez can be heard on his BWC stating, "We are gonna
take him downtown" as he leaves to get back in his patrol car. The subject asked Officer
Vasquez if he could "get on with his miserable day." Officer Vasquez stated "Gotta take
you off property" as he starts to drive away.
Officer Vasquez claimed to IA that he intended to transport the subject to the Austin
Resource Center for the Homeless (ARCH). However, during the transport he discerned
that the individual was not homeless. After this discovery, rather than continue the
"courtesy transport" to the individual's nearby home or have an open dialogue with the
individual and transport him to a mutually agreed upon location, Officer Vasquez chose to
leave the subject at a location (the intersection of South Congress Avenue and Oltorf Street)
that was approximately 1.3 miles away from the location where Officer Vasquez originally
encountered the subject. Moreover, it was approximately 2.7 miles away from the ARCH
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IA reviewed the BWC video from this incident and did not observe the aforementioned statements
captured on video. Additionally, when Officer Vasquez removed the handcuffs, the subject stated, "I'm
telling you it's [the restaurant] close to my house that's why I go up there," and Officer Vasquez
responded, "She [the restaurant manager] says you're often causing problems, so don't go back."
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and approximately 1 mile away from the subject's residence. Upon being released the
subject stated to Office Vasquez:
"Thanks for taking me all the way down here and make me walk the fuck back, man. "
Officer Vasquez replied:
"Have a nice day. "
Moreover, during Officer Vasquez's interaction with the subject, the subject expressed
that he was a potential victim of an assault by threat with a knife. However, Officer
Vasquez admittedly failed to follow up with questions or concerns or document this
outcry in accordance with APD policy. Moreover, this outcry was not sent to a Detective
for further investigation, nor was the subject offered or availed of the resources that
victims of crimes would be offered in similar situations.
In conclusion, while Officer Vasquez denied to IA that he violated any APD policy or
general orders, he did express that if he were confronted with the same situation again in
the future, he would handle it differently by taking the following actions:
"I'd give him a ride home, take him to his house that he said he lived at. - tend to his - pay
more attention to his - his statement that he made about, um, somebody, uh, pullin a knife
and ask him if he wanted to file a report on that."
Officer Vasquez further explained:
"I just, uh, wanted to, I guess make it clear that, um, I was, ah, wan- I wanted to help [the
subject] and provide him assistance with, uh, takin' him to the resource center for the
homeless. Um, I shouldn't have, uh, made an assumption that he was a person experiencing
homelessness and, uh, should have asked him if he wanted to go or if he wanted those
services, um, and to see if he would, ah, if - if he would wanna go on his own."
By these actions, Officer Vasquez violated Rule 10.03(L) of the Civil Service Rules by
violating the following rules and regulations of the Austin Police Department:
Austin Police Department Policy 301.2: Responsibility to the Community:
Impartial Attitude & Courtesy
301.2(a)(1) Impartial Attitude & Courtesy
Employees shall provide equal and fair protection of all rights under local, state,
and federal law for all members of the community. Law enforcement will be
conducted in an impartial and equitable manner.
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In an effort to create an organizational culture that is inclusive and
nondiscriminatory, employees shall act professionally, treat all persons fairly and
equally, and strive to interact with the community in a positive manner. Employees
will perform all duties objectively and without regard to personal feelings,
animosities, friendships, financial status, occupation or employment status, sex,
disability status, housing status, mental health or ability, citizenship, language,
national origin, creed, color, race, religion, age, political beliefs, sexual orientation,
gender identity, gender expression, ethnicity, or social or ethnic background.
(a)
Employees will not express or otherwise manifest any prejudice
concerning any of the categories or characteristics listed in this
section in a context or manner that would cause a reasonable person
to question the employee's fairness or impartiality related to the
performance of their duties.
1.
Employees will respect the rights of individuals and will not
engage in discrimination, oppression, or favoritism whether by
language, act, or omission.
2.
The use of remarks, slurs, epithets, words or gestures, which
are derogatory or inflammatory in nature to or about any
person or group of persons is strictly prohibited.
(b)
Employees will be tactful in the performance of their duties, control
their tempers, exercise patience and discretion, and shall not engage
in argumentative discussions even in the face of extreme
provocation.
(c)
Employees will treat all persons with dignity, will be courteous and
respectful toward all persons, showing consideration for the welfare
of all persons with whom they interact.
(d)
Employees will not ridicule, mock, taunt, embarrass, humiliate,
belittle, or shame any person, nor do anything that might incite that
person to violence.
(e)
Employees will not use indecent or profane language or gestures
while interacting with, or in the vicinity of, members of the
community.
(f)
Officers shall not encourage, condone, or ignore any of the
behaviors described in subsections (a)-(e).
Austin Police Department Policy 318.3: Detentions, Field Interviews and Field
Photographs: Detentions
318.3 Detentions
Detentions are "seizures" under the Fourth Amendment. Officers may stop and
question individuals when reasonable suspicion that the person may be involved in
past, present or future criminal activity exists.
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(a)
In justifying the stop, officers should be able to point to specific facts
which, when taken together with rational inferences, reasonably
warrant the stop. Such facts include, but are not limited to, the
following:
1.
The actions, appearance or demeanor of an individual suggests
that he is part of a criminal enterprise or is engaged in a
criminal act. Some factors include:
(a)
The subject is carrying a suspicious object.
(b)
The subject's clothing bulges in a manner that suggests
he is carrying a weapon.
(c)
The hour of day or night is inappropriate for the
subject's presence in the area.
(d)
The subject's presence in the particular area is
suspicious.
2.
The subject is located in proximity to the time and place of an
alleged crime.
3.
The officer has knowledge of the subject's prior criminal
record or involvement in criminal activity.
(b)
Officers may detain persons they lawfully stop for a reasonable
length of time in an attempt to:
1.
Verify their identity. (Officers should be familiar with Penal
Code Section 38.02. Persons are not required to identify
themselves unless they are under arrest; however, if they are
legally detained and choose to identify themselves, they must
do so accurately.)
2.
Account for their conduct and/or their presence.
3.
Discover whether a crime occurred.
4.
Determine person's involvement.
(c)
Officers shall release a person from an investigative stop if:
1.
The person eliminates the officer's reasonable suspicion of
criminal involvement; or
2.
The officer fails to develop the probable cause necessary to
arrest within a reasonable time.
Austin Police Department Policy 402.1.1: Incident Reporting and
Documentation: General Guidelines
402.1.1 General Guidelines
Officers will not write an offense report when they are the victim of a crime. The
victim officer will write a supplement. The offense report will be written by an
officer who is not a victim.
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An incident number will be assigned and all required fields completed during
documentation anytime an employee observes or receives any information
concerning the following, but not limited to:
(a)
Criminal or suspected criminal offenses, regardless of the victim's
level of cooperation.
(b)
Citizen complaints of non-criminal incidents requiring action by the
police.
(c)
Self-initiated stops
(d)
When Crime Scene personnel are assigned to an incident that was
first initiated or responded to by sworn personnel and no tele-serve
report has been made.
(e)
Crashes involving bicyclists will be will be investigated and
reported as defined in Section 346.3 Crash Investigation. Non-crash
events involving a bicyclist will be documented in a Versadex report
using title code 4311 under the following circumstances:
1.
The incident occurred on a public place
2.
At least one of the involved subjects sustained bodily injury;
and
3.
The incident occurred as a result of a potential criminal act,
violation of the Transportation Code, violation of a City
Ordinance, or the actions of another party.
(f)
Any other situation where documentation is required by law or
another section of departmental general orders.
If in doubt as to whether an incident should be documented, employees shall confer
with a supervisor. For the purpose of this order, Corporals may function as the
designated supervisor.
By copy of this memo, Officer Vasquez is hereby advised of this temporary suspension
and that the suspension may be appealed to the Civil Service Commission by filing with
the Director of Civil Service, within ten (10) days after receipt of a copy of this memo, a
proper notice of appeal in accordance with Section 143.010 of the Texas Local Government
Code.
By copy of this memo and as required by Section 143.057 of the Texas Local Government
Code, Officer Vasquez is hereby advised that such section and the Agreement Between the
City of Austin and the Austin Police Association provide for an appeal to an independent
third party hearing examiner, in accordance with the provisions of such Agreement. If
appeal is made to a hearing examiner, all rights of appeal to a District Court are waived,
except as provided by Subsection (j) of Section 143.057 of the Texas Local Government
Code. That section states that the State District Court may hear appeals of an award of a
hearing examiner only on the grounds that the arbitration panel was without jurisdiction or
exceeded its jurisdiction, or that the order was procured by fraud, collusion or other
unlawful means. In order to appeal to a hearing examiner, the original notice of appeal
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submitted to the Director of Civil Service must state that appeal is made to a hearing
examiner.
In addition, if this disciplinary suspension is for three (3) days or less, Officer Vasquez is
advised of the following provisions of Article 18, Section 1, of the Meet and Confer
Agreement:
The parties agree that when an officer is suspended for 1, 2, or 3 days the officer may
choose one of two methods of dealing with the suspensions as listed below.
a)
Suspensions that may not be appealed. The officer may choose to use
vacation or holiday time to serve the suspension with no loss of paid
salary and no break in service for purposes of seniority, retirement,
promotion, or any other purpose. The officer must agree that there is no
right to appeal if this method of suspension is chosen.
b)
Suspensions that may be appealed. The officer may appeal the
suspension to arbitration or the Civil Service Commission. If the officer
chooses to appeal the suspension, the arbitrator or Civil Service
Commission'. authority is limited to ruling on whether or not the charges
against the officer are true or not true. If the arbitrator or Civil Service
Commission finds the charges to be true, there is no authority to mitigate
the punishment. If the arbitrator or Civil Service Commission finds the
charges to be not true, the officer shall be fully reinstated with no loss of
pay or benefit.
Arbitration Costs on Appealable Suspensions
In the event that an officer appeals a I, 2 or 3 day suspension to arbitration, it is agreed
that the party that loses the arbitration shall be responsible for all costs of the arbitrator,
including travel and lodging if necessary.
To facilitate such payment on the part of the officer he shall submit, at the time of appeal,
signed payroll deduction agreement that if the arbitrator rules in favor of the City he
authorizes up to one hundred dollars ($100.00) per month to be deducted from his regular
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pay until such time as what would usually be the City's portion of the arbitrator's costs
have been/satisfied.
#3441
JOSEPH CHACON, Interim Chief
of Police Date July 23,02
ASST
ONBEHALF OF CHiEF CHACON
TO WHOM IT MAY CONCERN:
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I hereby acknowledge receipt of the above and foregoing memorandum of temporary
suspension and I have been advised that if I desire to appeal that I have ten (10) days from
the date of this receipt to file written notice of appeal with the Director of Civil Service in
accordance with the provisions of Chapter 143 of the Texas Local Government Code.
5378
7-23-2021
Police Officer Gabriel Vasquez #8378
Date
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