30 Days of Combined Suspension

On February 7 and 8, 2024, HPOU Attorney Aaron Suder represented three officers during their consolidated arbitration appeal of 10-Day Suspensions they each received from the Department in August of 2023.  The officers were alleged to have violated General Order 600-17, Use of Force, during an officer-involved shooting on February 15, 2023.

The appeal was heard by Independent Arbitrator William Hartsfield.  The Department was represented by HPD attorneys Chase Bowman and Tony Li.  The Department Representative was Assistant Chief Megan Howard.

At the time of the incident in question, the three officers (two South Gessner CST officers and one Westside DWI unit) were assisting in a vehicle pursuit being conducted by several members of the Gang Division CRU.  The CRU officers were chasing a felony suspect, whom they had been surveilling in connection to a weapons and narcotics investigation on the west side of Houston.  The suspect fled when the officers attempted a traffic stop and led officers on a high-speed chase for more than 30 minutes throughout the southwest side of Houston and eventually into the city limits of Sugar Land along Highway 90.

During the pursuit, a Gang Division CRU sergeant announced several times over the air that the felony suspect was the sole occupant of the vehicle and was armed with an AR-15 style assault rifle and a pistol.

As the pursuit came inbound on the Highway 90 feeder road towards I-69, the suspect attempted to make a U-turn under the I-69 overpass.  As the vehicle slowed to make the U-turn, the lead Gang Division CRU unit conducted a PIT & Go maneuver on the suspect vehicle, successfully spinning it around 180 degrees.  The vehicle came to a stop facing the wrong way on the Highway 90 outbound feeder.  Since the suspect vehicle had completely spun around, it was now face-to-face and bumper-to-bumper with the second Gang Division CRU unit in the pursuit.  The other police units then came to a stop behind the CRU unit at various positions around the curve of the U-turn.

As soon as the vehicles came to a stop, the suspect, still sitting in the driver’s seat of his vehicle, raised up a semi-automatic handgun and immediately began firing through his windshield at the Gang Division CRU officer that was directly in front of him.  The officer ducked down to avoid being shot as the suspect’s bullets began hitting his windshield.  The officer attempted to return fire as best he could through his own windshield, but he was pinned inside his vehicle as the suspect continued firing.

As the other officers exited their vehicles, they could see muzzle flashes inside the suspect’s darkened vehicle and glass from the suspect’s windshield exploding outward, as he continued firing at the CRU officer in front of him.  Fearing that the officer was going to be killed, and possibly already hit by gunfire, six additional officers opened fire at the suspect from various positions around the U-turn under the freeway overpass.

After several seconds of exchanging gunfire, the suspect was eventually hit by several bullets, including a self-inflicted wound from his own weapon, and died in his vehicle.  Miraculously, the CRU officer whose vehicle had been shot up by the suspect finally emerged from the vehicle, unharmed.  The other officers had successfully saved his life.

Since the shooting occurred within the city limits of Sugar Land, the on-scene investigation was conducted by the Texas Rangers and the Ft. Bend County D.A.’s Office.  The case was presented to a Ft. Bend County Grand Jury at the conclusion of the investigation and all seven officers who fired at the suspect were cleared of any wrongdoing.

Somewhat inexplicably, and despite their heroics in saving the life of a fellow officer, the Houston Police Department nevertheless saw fit to discipline three of the officers involved in the shooting, alleging that they violated General Order 600-17 by using force that was “objectively unreasonable.”  Even more inexplicably, the Department did not allege that the decision to use deadly force was unreasonable or that deadly force was unjustified under the circumstances.  Rather, the Department criticized the actions of the three officers for purely tactical considerations.

Specifically, citing ‘Priority of Fire’ concerns, the Department alleged that the three officers failed to “adequately consider their surroundings” and unreasonably endangered other officers when they opened fire at the suspect with other officers “standing in front of them.”  The Department also alleged that the officers acted unreasonably when they returned fired at the suspect inside his darkened vehicle by aiming their gunfire at his muzzle flashes.  According to the Department, it was unreasonable for the three officers to fire at the suspect without having an “identified target” and without knowing if anyone else was inside the vehicle that might have been endangered.

At the arbitration hearing, the Union presented evidence and expert witness testimony that thoroughly repudiated the Department’s allegations as being both factually untrue and patently ridiculous.  Several individuals with unassailable credentials, including a former HPD Academy Patrol Tactics Instructor and the Texas Ranger in charge of the on-scene investigation, strongly defended the actions of the three officers and pointed out the obvious fallacies in the Department’s conclusions.

To begin with, all of the three officers who were disciplined had good tactical reasons to fire at the suspect from their various vantage points.  The Westside DWI officer, for example, was the only officer on scene firing an AR-15 carbine, the most accurate and impactful weapon on scene, which would have been the preferred weapon of choice given the fact that the suspect himself also had an AR-15 in the vehicle and had a tactical advantage from his position.  The Westside DWI officer also had a clear line of fire to the suspect and was shooting from a distance of only 17 yards, well within his level of proficiency with the carbine.

By contrast, the South Gessner CST officers were further back from some of the other officers on scene and were firing pistols at the suspect.  However, both of these officers were expert marksmen and were firing at the suspect from a perfect “L” shaped ambush position, to the right side of the suspect’s vehicle.  This also gave them the advantage of trying to hit the suspect by firing through the softer target of the suspect’s passenger door, rather than trying to shoot through the engine block of his vehicle, as the other officers closer to the front of the suspect’s vehicle had to do.  In fact, the officers’ judgment turned out to be correct, as the ballistics report from the incident later verified that one of the South Gessner officers was the only officer to have actually hit the suspect with his gunfire.

In addition, as freeze-frame photographs from the officers’ BWC recording clearly established, none of the three officers had any other officers “standing in front of them” at the time they opened fire at the suspect, nor were any other officers close to “standing in front of them.”  Although there were other officers who were closer in proximity to the suspect than they were, on the right and left periphery, all three officers had a clear line of sight and clear line of fire to the suspect.  They did not unreasonably endanger any of the other officers at the scene or violate any of the tenets of their ‘Priority of Fire’ training.

Finally, contrary to the Department’s conclusions, the Union established that the three officers did, in fact, have a perfectly reasonable and legitimate target when they fired at the suspect by directing their gunfire towards the suspect’s muzzle flashes.  The officers had already been informed that the suspect was the sole occupant of the vehicle, and they knew he had been sitting in the driver’s seat of the vehicle immediately prior to the PIT maneuver.  Although they could not see the driver himself inside his darkened vehicle, they could see the muzzle flashes coming from the driver’s seat and rounds from the suspect’s weapon(s) exploding outward through his windshield.  Under the circumstances, this was certainly a legitimate, identifiable target to direct their gunfire at, particularly when considering the fact that the other four officers involved were firing at the exact same thing.

After hearing the evidence and arguments at the arbitration hearing, the Arbitrator ultimately agreed with the Union’s position on all material issues and thoroughly rejected and repudiated the Department’s findings.  On March 20, 2024, he issued an Award in favor of the three officers and overturned the discipline in its entirety (30 total days of suspension).

It can certainly be said that this case represents the worst kind of Monday-morning quarterbacking by individuals within the Department who lack the requisite judgment to refrain from unfairly criticizing officers for their actions during a high stress, chaotic and rapidly unfolding deadly force event.  And, despite clear policy language that dictates that an officer’s decision-making during a deadly force incident should not be judged with the benefit of 20-20 hindsight, it is nonetheless exactly what the Department does, time and time again, in cases like this.

It is also worth mentioning that, prior to the arbitration, the Union warned HPD leadership that its case against the three officers was deeply flawed and that the officers were, undoubtedly, going to win at arbitration.  We gave the Department the opportunity to do the right thing by dismissing the charges and avoiding yet another embarrassing loss at arbitration.  Unfortunately, the Department didn’t listen and instead chose to waste over $10,000 in arbitration costs and hundreds of hours of manpower, yet again, trying to defend an utterly indefensible case.

 

Published March 25, 2024

Author Aaron Suder, HPOU General Counsel