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    Officer Austin Barela: Denver Police Department Order of Discipline

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    472 Ansichten15 Seiten

    Officer Austin Barela: Denver Police Department Order of Discipline

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    Michael_Lee_Roberts
    Officer Austin Barela: Denver Police Department Order of Discipline

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    © All Rights Reserved
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    ary bates apy Over eth Deganmarat ney DENVER mee PUBLIC SAFETY ome voomsemanocoasnte, February 11, 2020 DEPARTMENTAL ORDER OF DISCIPLINARY ACTION, ‘Case No, 1C2019-0010 This Department owes a duty to both the public and the sworn members of the Denver Police Department, ofa fair, consistent and efficient disciplinary process. Inherent in that duty is the timely investigation, review and, where appropriate, imposition of appropriate discipline. Due to-various circumstances which resulted in numerous delays, the resolution ofthis case was not timely, and for that we are accountable. In conjunction with the Denver Police Department, this office conmits (0 ensuring that reasonably established timelines be adltered to in future ‘Austin Barela (P14085) ‘Officer in the Classified Service Denver Police Department ‘Thisis before the Executive Director of the Department of Safety to approve, disapprove or modify the Chief of Police's Written Command ordering disciplinary action against Officer Astin Barela ‘The Writen Command determined that Officer Barela violated RR-102.1, Duy to Obey Departmental Rules and Mayoral Executive Orders, of the Denver Police Department (DPD) (Operations Manual as it pertains to OMS 105.08, Discharge of Firearms, when he discharged his firearm at moving or fleeing vehicle. The Written Command imposed & mitigated penalty of 90 ‘days (720 hours) suspension for this Conduet Category F violation, On the moming of March 19, 2018, Mauricio Venzor-Gonzales escaped from the custody of | Denver Sheriff deputies who had transported him from the Downtown Detention Centr to Denver Health Medical Center for a scheduled medical appointment. Prior to his escave, Venzor- Gonzales had been in custody for the attempted first-degree murder of a Denver Police officer stemming from an incident in November 2017 where he fired shots at an officer parsuing him during a foot chase. Immediately after the escape, members of the Denver Police Department's Fugitive Unit began attempting o locate Venzor-Gonzales, Itwas believed that Venzee-Gonzales' ilftiend, Samantha Adams, had aided in his escape, so the efforts included conducting Surveillance with the assistance of members of the Aurora Police Department (APD) at her home in Aurora ‘At approximately 6:20 p.m. that evening, a GMC Acadia, occupied by two men, circled the area of the Adams home several times. ‘The passenger inthe front seat ofthe vehicle had the hood of DEPARTMENTAL ORDER OF DISCIPLINARY ACTION, Case No: 1€2019-0010 ‘Austin Barela (P14085) Officer in the Classified Service Denver Police Department his sweatshirt pulled up over his head in what was believed to bean atempt to obscure his identity ‘The Fugitive Unit detectives believed thatthe occupants of the vehicle were attempting to locate and avoid police surveillance. Based on all the circumstances, two different detectives from the Fugitive Unit believed the passenger was Venzor-Gonzales. Approximately 25 minutes later, the Acadia parked near the home, directly in front of Adams" vehicle. Adams left her home, entered her vehicle, and drove away. The Acadia also drove away, ‘which further supported the detectives” belief that Venzor-Gonzales was te front seat passenger. In his statement written on the date of the event, Sergeant Glenn Mahr of the DPD Fugitive Unit stated that thay were atthe address in Aurora because they believed Adams sil lived there and this was also the location where Venzor-Gonzales had been arrested after the original incident in November 2017. “The purpose of ths operation was to locate and interview [Adams]. He stated Detective Jay Lopez. received a phone eal from Adams’ grandmother relating that she was likely at the address. Additionally, electronic surveillance was also showing her to be atthe address. While conducting surveillance, Fugitive Unit personnel received information about Adams" involvement, or possible involvement in the escape, specifically that a co-defendant in Venaor- Gonzales’ case had spoken with Adams that day ata convenience store thre or four blocks from Denver Health and the time was “very near when the escape occurred.” Sergeant Mahe stated this information “gave us further reason to believe [Adams] was involved, and that Venzor-Gonzales ‘may possibly be at this location." He stated Detective Lopez related thatthe passenger in the SUV stared” at him, and “he believed the passenger to possibly be Venzor-Gonzales.” He stated Detective Lopez also related the party had a hoodie pulled down, and this “is another common Indicator of someone who is rying o avoid being detected.” Sergeant Mahr stated thatthe weather was nice, and a hoodie, especially while in a vehicle, “seemed suspicious.” He algo stated the SSUY “was 50 close to her that they were on the brakes briefly, to keep running into the back of (Adams ca.” Sergeant Mah statement continued: i was clear to the detectives and myself tha the vehicle was connected tothe address and ‘was waiting for (Adams) to leave, Detective Lucio sired that the passenger in the SUV was the fugitive. When asked further how confident he was that it was our target, he said hhe was 90% certain, The two vehicles spli-up and since the fugitive was possible in the SUV. [told detectives to stay with it and not to follow (Adams) Detective Lucio again aired, after seeing the occupants for another time, that he believed the passenger tobe the fugitive. T requested assistance from Aurora officers, who were in the area fo assist. I told them that we needed to stop the vehicle based on the belie that fn] armed and dangerous fugitive was in that car. Although there was not a “100%” positive identification, I believed based on the suspicious behavior, including the hoodie, counter-surveillance measur, andthe fact that they (sic) cccupaats in the vehicle were DEPARTMENTAL ORDER OF DISCIPLINARY ACTION. ‘No: 102018-0010 ‘Austin Barela (P'14085) Officer in the Classified Service Denver Police Department ‘waiting for, and following [Adams], that there was a high likelihood that the passenger was the fugitive Sergeant Mahr stated the decision to follow the vehicle was based on his belie thatthe occupant was the fugitive and the likelihood of finding him again was “slim”. He stated this belief was strengthened when they leamed a fellow jail inmate related Venzor-Gonzales would flee to Mexico. He sated he believed a vehicle pursuit was a viable option due tothe seriousness of the offense and the risk to public and law enforcement officers ifthe fugitive was not caught without delay. Detectives and officers from DPD and APD began to follow the Acadia and as it traveled into Denver, APD officers attempted to stop the vehicle. Asthe police vehicles approached, the Acadi fed into the North East Park Hill neighborhood. Several marked DPD patrol vehicles inthe area sug to join the pursuit afer heating uf it vis poles rai tatisions. Officer William Bohm (P13070) was driving a marked DPD patrol vehicle with Officer Austin Barela (P14085) riding inthe passenger seat when they traveled tothe area ofthe pursuit. Earlier pie to her ineviw with Srgean Engst on March 21,2018 DEPARTMENTAL On ION, ‘Case No: 1620190010 ‘Austin Barela (P14085) Officer in the Classified Service Denver Police Department Approximately ten months after the incident, on January 7, 2019, Officer Mercado was interviewed by Intemal Affairs Sergeant Randall Steinke. Prior. this interview, the videos from Officers Barela, Bohm and Mercado's body-worn cameras was publicly released, Officer ‘Mercado had an opportunity to review the video from her body-worn camera footage, as well as the publicly released video, ‘When asked what her “thought process was during the incident”, Officer Mercado responded: My thought process, based on the radio transmissions of other officers, Denver police officers, were (sc) that they were in pursuit of a homicide suspect, who was attempting to ‘escape from custody. My thought process was...when T got there, I got out of the vehicle, and upon reviewing my body worn camera, I observed thatthe vehicle was stopped. So ‘my thought process was to exit the vehicle and assist Officer Barela, whom I saw on my Jeft sie, atempe o take this party into custody. AC that time, the vehicle began to move. heard a source of gunfire from two different sources. I saw a vehicle moving down the ravine. My thought process was to stop this felon who was now attempting to escape custody, and also placing my fellow officer in danger. Sergeant Steinke asked about the 1wo sources of gunfire she heard, and Officer Mercado stated that she believed “one source was from Officer Barela, and I believe the other source was from the suspect attempting (o Mee.” She stated she believed it was necessary to discharge her firearm because she was “defending Officer Barela,” whom she believed was taking fire. When she was asked why she did not mention the two sources of gunfire during her interview with Sergeant Engelbert, she responded: ‘The day of my interview, I answered the questions (sic) the best of my ability, and 1 answered them as honestly as possible. I don’t know why T was fixated on the incident of the vehicle moving and the suspect trying to escape ~ in order to remember why that I dida’t hear, oF that I did hear gunfire. 1 was just altempting to answer the questions that ‘were being asked of me a honestly and as truthful as possible. Officers Barela, Bohm and Mercado each stated that they continued to fire their weapons until they perceived the threat of deadly force and/or the continued flight of a homicide suspect to be ‘over. By the time Officers Barela, Bohm and Mercado stopped firing their weapons, the suspect vehicle had come to rest with the front of the vehicle atop the large rocks inthe drainage ditch. ‘Numerous additional officers from both the Denver Police Department and the Aurora Police Department converged on the scene. Once it was determined o be safe, officers approached the “Thee is no evidence hat Ofer Mercado was decepive a any ie during the criminal or adminiratve Investigations ahs ease DEPARTMENTAL ONDEN OF DISCIPLINARY ACTION Case No: 1C2019-0010 ‘Austin Barela (P'14085) Officer in the Classified Service Denver Police Department suspect vehicle. It was not until this moment that officers discovered that Venzor-Gonaales was notin the vehicle ‘The passenger in the front seat ofthe suspect vehicle was removed from the vehicle by officers and identified as Rafael Landeros, Jr. Landeros was transported to Denver Health Medical Center where he was treated for a slight abrasion to his lower abdomen sustained during the shooting Incident. Upon release from the hospital, he was taken into custody on several misdemeanor and felony warrants The driver ofthe suspect vehicle was transported to Denver Health Medical Center where he was pronounced dead. The driver was identified as Steven Lee Nguyen. Nguyen's autopsy revealed the cause and manner of his death to be multiple gunshot wounds to the head, trunk, ands right upper extremity. Bullets recovered during his autopsy matched the ammunition of beth Officer Barela and Bohm, with each officer causing potentially fatal wounds. Toxicological testing was positive for methamphetamine, amphetamine, and a cannabinoid, Other officers responded tothe vicinity of Smith Road and North Holly Street where OiTicer Barela had seen the passenger of the suspect vehicle throw what he blioved to be a gun from the vehicle {during the pursuit. A black box marked “Honeywell” containing suspected methamy recovered. Fingerprint analysis ofthe box revealed a latent fingerprint on the outside of the box belonging to Landeros. A later chemical test confirmed thatthe box contained approximately 5.5 ‘grams of methamphetamine. ‘A loaded 9mm Beretta handgun was recovered from inside the suspect vehicle between the front ‘passenger seat and the passenger door, adjacent to where Landeros was seated. Examination of the weapon determined that the weapon was functional; however, there was no evidence 10 indicated that ether Nguyen or Landeros fired the weapon during the incident. fingerprint analysis on the Beretta revealed one latent fingerprint belonging to Landeros. Officer Barela discharged thiny-four rounds from his weapon, Officer Bohm discharged twelve rounds from his weapon, and Officer Mercado discharged two rounds from her weapon. Nguyen was struck by two rounds from Officer Bohm’s weapon (recovered from Nguyen's right arm and left brain) and one round from Officer Barcla's weapon (recovered from Nguyen's right lung). Steven Nguyen’s cell phone was found in the suspect vehicle. A forensic examination conducted pursuant toa search warrant revealed atext exchange on March 10, 2018 between Nguyen and the ‘mother of his child, in which she asked Nguyen to leave a location because the police had been called. He replied, “I'l be waiting tll em to bring the swat..." He then added, “I gct 2 full clips {or em bitch,” “U don’t even deserve one of my bullets bitch,” “Make sure u tell em im armed n dangerous...” “I put that on my grandmas grave im ready to die today.” 5 Vonzar Gonzales was apecheded on Augu 24, 2018 in Thermon, Coloadoby sent fromthe Fedral Burcu of vestigation. DEPARTMENTAL ORDER OF DISCIPLINARY ACTION. Case No 162019-0010 Austin Barela (P14085) Ofcarin the Classified Service Denver Police Department During his interview with Homicide Detective Daniel Andrews, Landeros admitted to knowing Venzor-Gonzales, bt he denied he and Nguyen were near Adam's home to aid Venzor-Gonzales in his escape. He said they were in the area trying to retrieve a cell phone from a woman and that they were circling the block when they began noticing what they believed to be numerous ‘undercover police officers in the area. Because they both had outstanding warrants and were driving a stolen car, they decided to leave the area rather than risk getting stopped by the police. LLanderos admitted he threw an object out ofthe front passenger side window during the pursuit and stated the object was a box containing methamphetamine. He stated the handgun found in the front passenger area of the suspect vehicle belonged to Nguyen and Nguyen handed him the gun afer the pursuit began. He stated Nguyen “was driving with one hand on the gua and the other (one on the steering wheel...” He continued, “when it got serious, like was serious, he's like here...Fucking hold onto this...and I grabbed it and I focking stuck it onthe side ofthe door right, away." He stated Nguyen “had like two magazines and stuff lke that Landeros denied fring the gun or pointing it at anyone, stating that once the suspect vehicle crashed by the drainage ditch, he was going to run, but he could 3ot get the door open. He stated. [Nguyen tied to climb across him to get out the passenger side deor, but he could not get the door ‘open either. When Nguyen went back tothe driver's side, the sts started. Landeras got down ‘ear the floor board and continued to move around the front passenger area while the shooting. continued, At some point before the shooting ended, Landeros heard Nguyen say, "Foo, they fucking shot me.” RR.1024 Duty to Obey Departmental Rules and Mayoral Executive Orders Officers shall obey all Departmental rules, duties. procedures, instructions, and ‘orders; the provisions of the Operations Manual; and Mayoral Executive Orders. As it pertains to OMS 105.05 Discharge of Firearms* (3) When all reasonable alternatives appear impractical, a law enforcement officer ‘ay resort tothe lawful use of rearms under the following conditions when he/she: reasonably believes that itis necessary. Tne ied subsection of OMS 105.0, Use of Force Poly, sit existed in 2018 and specifically om March 19, 2018, the dat of he events underlying his investigation. -10- DEPARTMENTAL ORDER OF DISCIPLINARY ACTION, Case No: 1€2019-0010 ‘Austin Barela (P14085) Officer in the Classified Service Denver Police Department ‘4. Todefend hinvnerself or a third person from what he/she reasonably believes tobe the use or imminent use of deadly physical force (C.R.S.18+1-707); oF b. To affect an arrest, or to prevent the escape from custody of a person whom he/she reasonably believes: 1. Has commited or attempted to commit a felony involving the use or threatened use ofa deadly weapon; or 2. Isattempting to escape by the use of a deadly weapon; or 3. Otherwise indicates, except through a motor vehicle violation that he is likely 10 endanger human life orto inflict serious bodily inary to another unless apprehended without delay. (CRS. 181-707) 4. The following definitions shall apply to all of OMS 105.O4si’ (3) and. a, REASONABLE BELIEF: When facts or circumstances the officer reasonably believes, knows, or should know, are such as to cause an ordinary and prudent police officer to actor think in similar way under similar circumstances. (5) Moving vehicles a, Firearms shall not be discharged at a moving or flesing vehicle unless deadly force is being used against the police officer or another person present by means other than the moving vehicle, From the statements he provided, the facts or circumstances Officer Barela reasonably believed and/or perceived before discharging his weapon include: ‘+ abomicide suspect had escaped from Denver Health Medical Center; ‘officers with the Fugitive Unit had 100% positively identified the passenger as the homicide suspect; ‘© the suspect vehicle had driven directly atthe patrol vehicle driven by Officer Bohm in ‘which Officer Barela was the passenger, ‘+ pursuit ofthe leeing suspect vehicle and a PIT maneuver had been authorized; "This cation should ead “OMS 108.053). and." OMS 105.043) is no sbastins“n." oh" Farthermore, ‘he subject of OMS 105.046) the ranking fie s esponsibility fr rime sens protection, Those relevant Scetions were amended by OMS 108.00 Fave Related Pais), efecve January 2019, ue DEPARTMENTAL ORDER OF DISCIPLINARY ACTION (Case No: 1C2018-0010 Austin Barela (P14085) Officer in the Classified Service Denver Police Department the passenger threw a firearm out of the passenger windew ofthe suspect vehicle during the pursuit ‘the driver ofthe vehicle repeatedly ran red lights and swerved out ofits assigned lane while traveling ata high rat of speed down Smith Road; ‘after the suspect vehicle and the patrol vehicle stopped, both individuals in the suspect vehicle were making “furtive movements toward the central console, reaching aroun ‘+ neither the passenger or driver complied with the officers’ commands to show their hands; ‘+ the suspect vehicle was attempting to accelerate as evidenced by the sound and smell of the ttes onthe rocks; and ‘+ the suspect vehicle was moving down into the drainage ditch. Officer Barela stated that he saw the door “move slightly ajar” and that he began fring toward the passenger side of the vehicle and continued to fire until he “perceived that the threat stopped." (Officer Bohm said he “feared (the passenger] was going to get out with a weapon and either Kill ‘me or kill [Officer] Bohm.” During this event, Officer Barela fired his weapon in separate sequences. During the first sequence, Officer Barela emptied his magazine, “17, 18 rounds.” He then reloaded his weapon, and said he started shooting again when the suspect vehicle began to move forward. After emptying that magazine, he again reloaded his weapon and then he stopped firing because “there was zero movement from the passenger.” Officer Barela discharged a total ‘of thity-four rounds from his weapon. Officer Barela recounted that “once the passenger stopped moving completely” he stopped firing and “tried 10 move to use better cover behind the back” of | the patrol vehicle Officer Barela violated this departmental rule when he discharged his firearm at a moving or fleeing vehicle. Officer Barela's belie thatthe circumstances athe time he and Officer Bohm stopped the pursuit of the suspect vehicle warranted the use of decly force was neither reasonable nor necessary, Office Barela was confronted with no imminent use of deadly force, nor was it reasonable fr bim {believe that either he or Officer Bohm were confronted with theimminent use of deadly physical force. Officer Barela got out of his patrol vehicle and moved toward the suspect vehicle with no cover. The two suspects in the vehicle were moving inside the vehicle which was facing away {rom the officers’ position and the suspects filed to comply with he officers’ commands to show their hands. At the time Officer Barela chose to first fire his weapon, he perceived that the ppassenger-side door moved “slightly ajar” and he suggested that movement justified his decision. {o fire because that he “feared [the passenger] was going to get cut with a weapon and either kill [himJor kill [Oficer] Bohm.” This enunciated fear does not meet the standard of a reasonable belief. An ordinary and prudent police officer facing similar circumstances would not actor think. ina similar way. Officer Kay arrived on scene after Officers Bohm and Baela and just prior to Officer Mereado's arival. Officer Price arived on scene very shorly after Officer Mercado, Officer Kay and Officer Price both stated tht they were unable (>see what was causing either 212 DEPARTMENTAL ORDER OF DISCIPLINARY ACTION Case No: 1C2019-0010 ‘Austin Barela (P14085) Officer in the Classified Service Denver Police Department ‘one, or both, ofthe officers to fire. Both Officers Kay and Price reasonably chose to take cover and made independent decisions to not fre. Both Officers Kay and Price arrived atthe scene and assessed the situation and those assessments did not give them a reasonable belief that it was, necessary (0 discharge their firearms. Though Officers Kay and Price did not see the suspects ‘moving within the vehicle, nor did they see the perceived movement in the passenger side doar, they did have the other information concerning the suspects, and based on that information, they teach assessed the scene upon arrival and chose to take cover. By contrast, Officer Barela exited his vehicle and without benefit of any cover, moved towards the vehicle, placing himself in a vulnerable position that may have contributed tothe fear that factored in his decision to fire his ‘weapon. Officer Barela's decision to discharge his firearm is similarly not supported by OMS 105.05(3)b Regardless of who the passenger was inthe suspect vehicle, the passenger was not Aesing from the immediate commission or attempied commission of a felony involving the use or threatened use ofa weapon nor was he attempting to escape by use ofa deadly weapon. The suspect vehicle was stopped, pointed downward into a drainage ditch filled with larg roeks. Is not reasonable {© conclude thatthe individuals inthe car wer “Iikely to endanger human life or tific serious bodily injury to another unless apprehended without delay.” "An ordinary and prodent police officer would not have chosen to discharge a firearm under the totality ofthe circumstances presented to Officer Barca Finally, Officer Barela's decision to fre his weapon is not supported by OMS 105.05 (5). Simply stated, there was no deadly force being used against him, other offices or any other person when he fired. It is specifically prohibited to fire at a moving or fleeing vehicle unless deadly force is being used against an officer or other person. Officer Barela stated he started shooting again when the suspect Vehicle began to move forward. Officer Barela's belie thatthe vehicle which was slowly moving forward in a ditch filled with large rocks was a “continued threat” was not reasonable, [None of the necessary predicates to the discharge of a firearm were present when Officer Barela, the firs officer to shoot, made the decision to discharge his firearm, It was neither reasonable nor Consistent with the poly, the 10d Cc Court of Appeals as fund {T]he ace wo basi suaions tat would Jasly sn ofce’s bet tha cing suapet poss 3 heat of eis physic! harm (1) where the spect se place te ofcer ins dangerous, if eatning station: or (2) wher the aspect ting from he comission ‘fan inhrealy violent ere. (Ryder City of Topeka B14 F.2d 1412 (00h C1987). Using fame work, i is appropri (analyze whether the suspect that Officer Baca tlived he was shooting at was Deeg fom th Immediate commision on inherently vnen crime. Fuster, the Sepreme Cour and he 10th Creat hve frovided ational punance by recopnizing tha aw enforceen’ fier may be ound have sted reasonably Iroxng deadly fre even ithe fiers ble mistaken so the fc jying thew of ely forse See Saucier. et 533 US. 194, 205-06 2001); Thomas v. Duras 67 F.3d 635/668-6610 C2010) However, the mistake must be reasonable unde the oly ofthe cicumstanecs conto he ocr. Thomas, (07 F.3d 3 66, <1 DEPARTMENTAL ORDER OF DISCIPLINARY ACTIO! Case No: 1C2018-0010 Austin Barela (P'14085) Officer in the Classified Service Denver Police Department necessary for Officer Barela to fie his weapon. Officer Barcla's discharge of his firearm was @ violation of RR-102.1, Duty to Obey Departmental Rules and Viayoral Executive Orders as it Pertains 0 OMS 105.05, Discharge of Firearms. ‘A violation of RR 102.1 appears in Conduct Categories A through F of the disciplinary matrix. By Aischarging his weapon at a moving or fleeing vehicle as described above when there was not deally force being used against him, other officers, or euber persons, Officer Barela's conduct appropriately falls under Category F because it “Toreseeably resultfed} in death or serious bodily, injury to another person.” Pursuant to the distiplinary matrix, for a Category F, discipline level eight (8) violation, the ‘mitigated penalty is ninety (90) days (720 hours) suspension, and the presumptive penalty is ‘Though this was a deadly physical force incident, resulting in the death of Steven Nguyen, it is stil appropriate to consider the significant mitigating circumstances in this ease. Per the DPD Discipline Handbook, mitigating circumstances may include “(minimal or lack of prior

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