Disciplinary Recommendations 2021-0036, Officer Gutierrez and Officer Serrato

OF
GIVE
COUNTRY
FOUNDED
OFFICE OF
POLICE OVERSIGHT
MEMORANDUM
TO:
Chief Chacon, Police Chief, Austin Police Department
FROM:
Sylvia Hardman, Interim Director, Office of Police Oversight
DATE:
January 25, 2023
SUBJECT:
Disciplinary Recommendations 2021-0036, Officer Gutierrez and Officer Serrato
Pursuant to Article 16, Section 4(1)(2) of the Meet and Confer Agreement (the Agreement), the
Director of the Office of Police Oversight (OPO) may make non-binding written disciplinary
recommendations on "critical incidents" as defined in Article 16, Section 2(d) of the Agreement. I
write to you today to set forth OPO's recommendations related to case number 2021-0036.
On January 5, 2021, Officers Gabriel Gutierrez and Luis Serrato were involved in a critical incident.
Officer Gutierrez was off duty and fired his personal firearm. Officer Serrato was on duty and
responded to a "shots fired" call. After arriving on scene, Officer Serrato fired his APD-issued
weapon. Mr. Alexander Gonzales, Jr. was shot multiple times by Officers Gutierrez and Serrato and
died at the scene. Ms. Jessica Arellano was also in the vehicle with Mr. Gonzales and was shot
multiple times; ultimately she survived the incident.
A Travis County grand jury declined to indict Officers Gutierrez and Serrato on or about December
27, 2022. The Internal Affairs Division (IA) of the Austin Police Department (APD) conducted an
administrative inquiry of this critical incident.
On January 23, 2023, IA provided the interim OPO director and the Community Police Review
Commission (CPRC) with a private case briefing. We also heard input from members of the
community during the public session of the January 23, 2023 CPRC meeting.
Recommendations
Based on my review of the IA file, IA's private briefing, (including video of the incidents and officer
interviews), and input from the community, I make the following recommendations:
1. Officer G. Gutierrez, indefinite suspension
2. Officer L. Serrato, counseling and guidance
3. Department policies warrant review
4. Changes to training of officers
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Background Summary
On January 5, 2021, Officer Gutierrez was off duty and traveling in his personal vehicle. He
states that while driving he noticed another vehicle driving erratically. Officer Gutierrez reports
that he did not call 911 to report the erratic behavior as he did not believe anyone was in danger.
Officer Gutierrez states, and evidence supports, that the other vehicle eventually pulled up along
the side of his vehicle. Officer Gutierrez states that he saw the driver of the car pointing a gun in
his face and he thought he was going to get shot and was going to die. The driver of the car was
later identified as Mr. Alexander Gonzales, Jr.
Officer Gutierrez states that he grabbed his personal firearm and shot eight times at Mr.
Gonzales, emptying his magazine. He states that he reloaded and looked at Mr. Gonzales, who
appeared to have been shot in the side of the head. Officer Gutierrez states that he saw that Mr.
Gonzales' face was covered with blood and he was slumped over. Officer Gutierrez states that he
then heard screaming and realized that someone else was in the car. He states that, prior to that, he
didn't know that anyone else was in the car. The other car started to move away and Officer
Gutierrez called 911.
The vehicle driven by Mr. Gonzales rolled a short distance and stopped on a curb. Officer Gutierrez
followed the vehicle. Mr. Gonzales exited his vehicle, bloody and staggering. Mr. Gonzales'
passenger, Ms. Jessica Arellano, exited the passenger side of the vehicle and fell to the
ground. Officer Gutierrez identified himself as an officer and held Mr. Gonzales at gun point
shouting to Mr. Gonzales to put the gun down. Officer Gutierrez did not see a gun in Mr.
Gonzales's hand or, but still shouted "put the gun down."
On-duty officers arrived on the scene within minutes. Officer Gutierrez informed the on-duty
officers that Mr. Gonzales had a gun in the driver's side. The on-duty officers gave Mr.
Gonzales several commands to put his hands up and Mr. Gonzales initially complied with the
commands. Mr. Gonzales began slowly walking and staggering from the driver's side of the
vehicle to the rear passenger side of the vehicle. Officers provided several commands, including
"stop walking" and "don't reach into the car." Mr. Gonzales opened the rear passenger seat door
and reached into the back of the car. Officer Serrato fired ten shots at Mr. Gonzales. Mr. Gonzales
died at the scene.
Ms. Arellano was behind Mr. Gonzales on the ground moaning. When officers approached to render
aid, they learned that Ms. Arellano had been shot three times and there was a baby in the
rear passenger seat. The evidence shows that Officer Gutierrez shot Ms. Arellano. The
evidence is inconclusive as to whether Officer Serrato also shot Ms. Arellano. A gun was located
on the floor of the car in the front driver's side.
Mr. Gonzalez never fired a weapon during this incident. The evidence supports that Mr. Gonzalez
did not know that Gutierrez was an off-duty officer. The investigation revealed that there was no
weapon in the rear passenger seat of Mr. Gonzalez's car. The evidence further indicates and that
when Mr. Gonzales opened the rear passenger door, he was most likely checking on the
safety of his infant child who was in a car seat in the rear passenger seat of the car. The infant
was not injured.
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Basis for Recommendation
I understand that your final decision regarding discipline is due by January 26, 2023. While my
recommendation is based on many factors, in the interest of time, I will summarize the relevant
factors at the center of my recommendations.
Officer Gutierrez
Officer Gutierrez was engaged in a "road rage" incident. One person, Mr. Alexander
Gonzales, Jr. was shot multiple times and died as a result. Another person, Ms. Jessica
Arellano was also shot multiple times and severely injured.
Officer Gutierrez recklessly fired his weapon into a car, failing to verify whether anyone else
was in the car.
Officer Gutierrez did not take any action to de-escalate the situation.
Based on video of the first incident, it appears that Officer Gutierrez began firing his weapon
less than three seconds after Mr. Gonzales pulled up alongside of him.
Officer Gutierrez states that there was no verbal communication between himself and Mr.
Gonzales during this time. A civilian witness to the incident stated that there was an exchange
of words between the occupants of the cars. This inconsistency impacts Officer Gutierrez's
credibility.
Officer Gutierrez failed to inform 911 dispatch or other officers that he shot Mr. Gonzales.
Officer Gutierrez continued to shout "put the gun down" despite the fact that he saw Mr.
Gonzales's hands and knew that he did not have a gun in his hands.
Officer Serrato
Officer Serrato's action of firing his weapon appears to be within policy, as he and the
other on-duty officer on scene provided several commands to Mr. Gonzales to not reach
into the car. Officer Serrato reasonably believed that Mr. Gonzales had a weapon and
that Mr. Gonzales was attempting to retrieve a weapon.
While it appears that Officer Serrato's actions were reasonable considering all factors, it is
concerning that he fired 10 times at an individual who had already been shot.
It is understood that officers are trained to shoot until the threat has ended. This
standard/training should be reviewed and revised to provide more direct guidance on what
this standard actually means. Under the facts and circumstances of this case, it appears that
10 shots may have been excessive. In short, the policy and training on "stop the threat"
should be reviewed.
Lastly, it is concerning that Officer Serrato fired his weapon 10 times at someone while an
injured bystander was nearby and could have or may have been shot. While this is a concern
and possible training issue, under the circumstances I cannot conclude that the action was
unreasonable.
General Orders/Scope of Inquiry
The scope of the Internal Affairs inquiry was limited to General Order 200.4 Deadly Force
Application.
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As you make your decision, please consider whether the officers' actions were consistent with all
General Orders, laws, good judgment, your expectations of an APD officer, and those expectations
held by Austin community members. Other applicable General Orders may include:
200.2.1 Assessment and De-Escalation; and
364 Off-Duty Law Enforcement Actions.
Conclusion
Recognizing the unique complexity of this critical incident involving off- and on-duty officers,
and after reviewing the IA investigative file and obtaining an IA briefing, I recommend
indefinite suspension of Officer Gabriel Gutierrez. I also recognize that there is a deadline
for issuing discipline. Consequently, this recommendation is brief in order to provide input to
you in a timely manner. If you have any questions or would like to discuss further, please let me
know.
Sincerely,
Sylvia Hardman
Sylvia Hardman
Interim Director, Office of Police Oversight
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