Recelved Homan cos ogy, Records Blvsicnt?™ 8 Je 22 84 9: 43 MEMORANDUM Austin Police Department Office of the Chief of Police TO: Joya Hayes, Director of Civil Service FROM: Brian Manley, Interim Chet of Police DATE: January 19, 2018 SUBJECT: Indefinite Suspension of Police Officer Bryan Richter #6824 Intemal Affairs Control Number 2017-0948. Pursuant to the provisions of Chapter 143 of the Texas Local Government Code, Section 143.082, and Rule 10, Rules of Procedure for the Firefighters’, Police Officers’ and Emergency Medical Service Personnel's Civil Service Commission, | have indefinitely ‘suspended Police Officer Bryan Richter #6824 from duty as police officer forthe City of “Austin, Texas effective January 19, 2018, tock this action becsuse Officer Richter 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 i, (or be involved in, any ofthe 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.‘The following are the specific acts committed by Officer Richter in violation of Rule 10: On July 26, 2017, units within the Organized Crime Division (OCD) of the Austin Police Department (APD) took part in an operation to arrest a subject for narcoties-elated offenses and an outstanding third degree felony assault warrant. During the operation, the ‘subject was followed around Avstin, eventually leading officers to the Barton Creek Mall parking lot where he was taken into custody. When the subject was taken into cusiody Officer Bryan Richter and Detective Steven MeCurley used force while effecting the arrest, After the subject was arrested, Officer Richter and Detective McCurley immediately approached the subject’s unoccupied vehicle and breached the windows on the passenger side to clear the interior of the vehicle. While still at the scene, Officer Richter and Defective MeCurley reported the damage tothe subject's vehicle to Sergeant Kevin Vates ‘and Sergeant Randy Dear, respectively. However, neither Offer Richter nor Detective MeCurley mentioned ther response to resistance R2R/use of force during the arest to any supervisor atthe seene. Later that day, at the OCD office after the operation, Officer Richter approached Sergeant ‘Dear and inquired if]an R2R needed to be done since the operation was planned. Sergeaat ‘Dear then asked Officer Richter ifan R2R had taken place during the operation. Officer Richter’ initial response to Sergeant Dear was thatthe subject was puided tothe ground during the arrest. Sergeant Dear, not believing that force had been used, based upon Officer Richte's secount during this initial conversation, told Officer Richter they would discuss the mater further the nextday. (On the morning of July 27, 2017, Officer Richter met with Sergeant Dear and began to give ‘an account of his actions during the arrest. During this conversation, Sergeant Dear noted inconsistent details in Officer Richter's portrayal of the incident from the day before. Thus, ‘Sergeant Dear instantly summoned Sergeant Yates into the office and then Officer Richter ‘ve his account of his actions to the two Sergeants. Sergeant Dear noted further inconsistencies inthis portrayal andthe one given to him by Officer Richter the day before. Officer Richter was then directed to contact APD’s Air Support Unit (Air One) and inguire ifthey were able to capture video ofthe operation. Upon receiving and viewing video from Air One, Sergeant Dear and Sergeant Yates noted the details provided to them by Officer Richter about his involvement were not consistent with what was captured in the video. ‘The Sergeants also discovered that Detective MeCurley used force during the incident. ‘The Sergeants promplly notified their chain of command of these developments ‘Thereafter, on August |, 2017, Lieutenant Oliver Tate signed an Internal Compl ‘Memorandum requesting Internal Affairs (IA) investigate possible policy violations Officer Richter and Detective McOutey, The APD Spec Invesigains Unit (S1U) conducted aconcurrent investigation into this incident. Asof the date ofthis memorandum, the SIU investigation is suspended pending Officer Richter’s decision to give a statement tothe SIU.Intemal Affairs investigators reviewed the video thet captured part ofthe incident, Relevant times noted are drawn from the digital source using the 24-hour clock: Video Footage Timeline Officer Richter made contact with the subject and performed a take down. Detective MeCurley pushed Officer Aguilar-Lopez to the sid. The subject was on the ground. 13:27:18 Detective McCurley delivered a kick, with his right foot, to the subject's right abdominal area. The kick made the subject’s shoulders move, 7:20, Detective MeCurley placed his right foot on the subject’s right forearm, The subject's hands were bchind his back. Officer Richter placed his right foot on the subject's head. Officer Richter took a stuter step that made his left foot completely leave the ground while his tight foot was sil on the subject's head. 13:27:22, Officer Richter removed his right foot from the subject's head. The subject’s bands were behind his back, Officer Garcia kneeled down to take the subject into custody by beginning t0 secure the subject's hands. Officer Richter jogged away from the arrest scene toward the area where the subject's vehicle was parked 13:27:28 Detective McCurley delivered a kick, with his right fot, tothe subject's right, side, Officer Richter 1ook cover tothe vear and next toa vehicle, about two parking spots away fom the subject's vehicle. Two Hays County Deputies were seen forming up behind Officer Richter, Detective MeCurley walked away from the arrest scene toward the area where the subject's vehicle was parked, Detective McCurley and Officer Richter struck the windows on the Passenger side ofthe subject’s vehicle withthe barrel oftheir rifles On August 9, 2017, SIU Detectives interviewed the subject at the Travis County Correctional Complex (TCCC) in Del Valle, Texas. The subject advised detectives that ‘while be was on the ground handeuffed one officer (Officer Richter) put his foot on the lef side ofhis face. The subject told detectives while the officer had his foot on his head, he felt pressurelpain and added he had headaches afterwards‘During the interview, an SIU Detestive noted the subject ad the following visible injuries ‘which he attributed to having been thrown tothe ground by polices ‘*Abrasion/road rash to left elbow ‘+ Abrasion/road rath o inside of let knee Dishonest with Sergeant Randy Dear On Ociober 5, 2017, Sergeant Dear was interviewed by Intemal Affairs. Sergeant Dear indicated that Officer Richter approached him a few hours after the incident and described the following portrayal in their initial discussion, well before anyone confirmed thatthe July 26, 2017 incident was captured on video Officer Richter asked Sergeant Dear, ‘Hey, uh, you know, since this was a planned ‘operation do we sll have o do a R2R?” Sergeant Deat responded affirmatively and asked Officer Richter ifan R2R occurred to which Officer Richter replied just guided him (ihe subject) fo the ground, you know. I gave him a bunche commands ‘and, you kos, you could tell in his face that ke didin't know what was goin’ on so J just ‘guided him tothe ground." Sergeant Dear advised investigators that he then specifically re-asked Officer Richter if he ‘took down’ the subject or if he ‘guided him’ tothe ground. Officer Richter responded ‘7 ‘guided him,’ while also failing to mention that he stepped on the subjects head. Sergeant Dear advised Officer Richter that they would continue their discussion the following day, as Sergeant Dear was left with the impression that force was not used, Sergeant Dear indicated that he and Officer Richter met the following morning, Officer Richter bogan to describe to Sergeant Dear that he gave the subject ‘muliple command ‘before he took the subject ‘down to the ground,’ Sergeant Dear immediately interrupted ‘Officer Richter and succesfully sought out Sergeant Yates to join the mesting, According to Sergeant Dear, Officer Richter then gave him and Sergeant Yates the following portrayal ‘before anyone realized thatthe July 26,2017 incident was captured on video: ‘Tgot him (the subject) o the ground." This prompted the Sergeants to ask Officer Richter if he hip tossed the subject. According to Sergeant Dear, Officer Richter responded by saying ‘Thip tossed him, uh took him o the ground and I had 10 put my knee in his back. Sergeant Dear also vividly remembered that Officer Richter then stressed to him and Sergeant Yates that promise you, very, very gently [had to put my Boot up on his head." However, Sergeant Dear indicated that upon seeing the video of the incident, he realized that Officer Richter’s depiction of the incident was not consistent with what he articulated tohim and Sergeant Yates. Specifically, Sergeant Dear noticed that Officer Richter didnot ‘seem to give any commands tothe subject, and certainly not the amount of commands that he had portrayed. Sergeant Dear was also alarmed by the force used on the subject, particularly since he'd never “seen anybody that compliant. "Moreover, Sergeant Dear toldIntemal Affairs that he was surprised to see Officer Richter stand on the subject's head with his weight on the subject and certainly notin the “gentle” manner that he portrayed. Sergeant Dear's interview closed with him advising Internal Affairs that he believed that Officer Richter using his foot on the subject's face was unreasonable force in this case, Sergeant Dear also indicated aftor viewing the video, he realized Officer Richter “absolutely” lied to ism in his two portrayals of the incident Dishonest with Sergeant Kevin (On September 28, 2017, Sergeant Yates was interviewed by Intemal Affairs. Sergeant ‘Yates gave Internal A farsa recount ofthe July 27, 2017, meeting with Sergeent Dear and Officer Richter, before anyone realize that the Tuly 26, 2017 incident ws captured on video, Sergeant Yates remembered Officer Richter giving the following portrayal ‘1 (Officer Richter) got out ofthe vehicle and I gave him (the subject) multiple commands 10, uh, to get down on the ground... ‘He just kinda looked at me. And, um, you know, kinda confused and wasn't answering me so, you know, just, you know, took him fo the ground.” Sergeant Yates indicated Richter went on to say, Well did a hip throw and threw him to ‘the ground,” response toa follow-up question. Office: Richter ultimately acknowledged to Sergeant Votes and Sergeant Dear that his actions likely caused the subject pain. ‘Sergeant Yates stated Officer Richter elaborated that: ‘1 (Officer Richter) got down and I put my knee in his back, holding kim down... ‘his (the subject’) head was moving a lot and I thought he was looking around for somebody." Sergeant Yates vividly remembered that Officer Richter then stressed tha ‘ud do this ever (sc) so gently. 1 promise I did this lightly. 1-I barely ouched him but I ook my foot and I held his head down, um, with my foot. But I promise Sarge, 1 was just ever (sie) so lighily. Just very gently. ‘Sergeant Yates indicated thet upon seeing the vigeo of the incident, he immediately notified ‘Sergeant Dear that Officer Richter’s depiction of the incident was not consistent with what he articulated to him and Sergeant Dear. Specifically, Sergeant Yates perceived that Officer Richter did not seem to give any commands to the subject. He also noticed thet Officer Richter did not kneel on the back of the subject. Sergeant Yates also took issue with the fact that Officer Richter “was standing up and stood with his foot on his (Whe subject's) head which wasn't what he told us and I had issues with that obviouslyOn Devember 14, 2017, Officer Richter was interviewed by Internal Affirs, Officer he following description of the July 26, 2017, operation fos ihr was ed et an pi tie body wel an ebjers hea. He pic, cna Ata investigators then played a portion of the video beginning at 13:27:20 for Officer Richter and asked him to look at his feet, particularly his let foot and describe what he saw. The following exchange occurred: nicuter: «= our right leg ison (the subject's) head, but yet you're not putting Your entire body weight on his head? RICHTER’ Officer Richter also acknowledged aasserted 10 LA thal Officer Richter justified his aston t0 1A by apparently giving nO consideration o the extremely hot pavement historical deta shows around 1:30pm on July 26, 2017, Austin temperature was epproximately 97 to 100 Degrees Fahrenheit), OF further ter significance, Officer Richter Richter peor Richter sited ergeant Dear aor Sergeant Yates Me MNOWNE Although Sergeant Dear and Sergeant Yates both vividly recalled Officer Richer using the words “gently” or “lightly” when des the placement of his foot on the subject'sConclusion “Although Officer Richie: fe did concede (o me and his chain of command in his DRH that stepping on the subject’s head was not reasonable. Moreover, Officer Richter did not comply with policy and properly report his use of force in spite of two opportunites to do s0 on the day ofthe incident. Officer Richter not only filed to make any mention of his use of foree at the scene, but he mislead Sergeant Dear, minimizing and omitting pertinent information in the aftermath of the operation ‘The following day, Officer Richter did reveal that he stepped on the subject's head, However, his description to Sergeant Dear and Sergeant Yates wes inconsistent with what video evidence eveatuslly revealed. The picture Officer Richter portrayed minimized his actions and was suggestive that he did not inflict pain on the subject and that this force was necessary under the circumstances, Upon seeing the video, Sergeant Yates expressed to Sergeant Dear that they had been deceived by Officer Richter. Sergeant Yates confirmed the same sentiment t9 Internal Affairs. Additionally, the evidence shows that Officer Richter's misrepresentations eroded the trust Sergeant Dear had in him. Furthermore, Officer Richter’s actions and misrepresentations have eroded the trust Tand the chain of command had in him. The evidence in this case shows, but for the Air One footage fortuitously capturing the arrest of the subject, we would not have an accurate account of what transpired. If an officer demonstrates that he cannot or will not give a truthful account of the force that they used, | as Chief of police would be remiss in my ties and responsibilities iff allowed such an Officer tobe bestowed the power to continue to have the duties and responsibilities that are designed to protect and serve the public. Therefore, after careful consideration and deliberation with Officer Richter's chain of ‘command, the unanimous decision was made to indefinitely suspend him, By these actions, Officer Richter 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 2002.1: Response to Resistance: Determining the Objective Reasonableness of Force 2002.1 Determining the Objective Reasonableness of Force ‘Any interpretation of cbjective reasonableness about the amount of force that reasonably appears to be necessary in a particular situation must allow for the fact that police officers are often forced to make split-second decisions in circumstances that are tense, uncertain and rapidly evolving, and the amount of time available to evaluate and respond to changing circumstances may influence their decisions. The question is whether the officer's actions are “objectively reasonable" in light ofthe facs and circumstances contonting him,(@) When determining whether to apply any level of foree and evaluating whether an officer has used objectively reasonable foree, a umber of factors should be taken into consideration, These factors include, but re not limited to: 1. The conduct ofthe individual being confronted as ressonably perceived by the offier at the time 2. Offcerisabest factors such as age, size, relative strength, injurflevel of exhaustion and number of officers v, subject skill evel, 3. Influence of drugsalcohol or mental eapacity. 4. Proximity of weapons. 5, The degree to which the subject has been effectively restruined and his ability to resist despite being restrained. 6.Timeand circumstances pemniting, and the availability of other opsions (what resourees are reasonably available to the officer under the cireumsiances) 7. Seriousness of the suspected offense or reason for contact with the snd, 8. Training and experience ofthe officer. 9, Potential for injury to citizens, oficersand subjects 10. Risk of escape 11, Whether the conduct of the individual being confronted no longer reasonably appears o pose an imminent threat to the officer or ober. 12 Other exigent circumstances. > Austin Police Department Policy 211.4.1: Response to Resistance Inquiry, Reporting, 1d Reviewing: Employee Reporting Guidelines for All Force Level Incidents 211.4.1 Employee Reporting Guidelines for Al Force Level Incidents ‘The following outlines the reporting guidelines for involved employees, employees ‘that witness an incident and employees designated to assist atthe scene of any response to resistance indent. @ ‘An incident report shall be completed by the primary reporting ‘employee and include title eode 8400. This report shall be waitten regardless of whether a report or supplement would nommally be ‘writen for the initial incident.© © @ © ‘Supplements shall he completed by: All other employees who are involved ina force incident. Employees who witness a force incident Employees assisting atthe scene ofa force incident. ‘A supervisor is required to complete supplement to the response to resistance incident report for Level 1 incidents. ‘They may also be required by SIU to complete a supplement tothe SIU inquiry report ‘The following information shall be included in each report and supplement 1. The original reason for police presence on the scene. 2, Thename and employee number ofthe supervisor notified of the incident 3. A detailed description of the circumstances and subject actions that resulted in the use of force. ‘A detailed description of the force used. (@) Include specific details regarding any weapon used on a subject (e.g, when OC spray is used you document the ‘number of bursts, uration of each burst, the approximate distance from the subject, the location of spray contact). 5. Subject and witness information, 6. Reports shall not contain "boilerplate" or "pat language (e.g, "furtive movement" or "fighting stance") without descriptive details ofthe action. 7. Involved employees shall also complete the force section of the "Details" page in their report/supplement All incident reports and supplements shall be completed separately and without discussing the details of the incident with other personnel. "Group reporting’ is prohibited. Debriefing after an incident and/or the necessary discussions to further the training requirements of officers enrolled in the Field Training Program (FTP) are allowed. ‘A copy of the response to resistance incident report, any supplements, and any ancillary documents should be submitted 0 the reviewing supervisor prior tothe end of the employee's tour of uy,> Austin Police Department Policy 9003.1: General Conduct and Responsibility: Honesty 9003.1 HONESTY Honesty is of the utmost importance in the police profession. Employees are ‘expected tobe truthful a all times inthe performance of their duties. (a) Employees will speak the truth at all times and reflect the truth in all reports and written communications. Any statement or omission of pertinent or material information waich intentionally misrepresents facts or misleads others through en official statement will be considered a false offical statement. The following are examples of an "official statement" 1. Documents prepared by an officer in connestion with their official duties, including but not limited to incident reports or supplements, swom affidavits, and citations 2. Verbal or written statements made by an officer in connection with their official duties to (@) An investigator conducting an administrative or criminal investigation of the officer or another person's conduct. (0) A supervisor conducting an inquiry nto the office's use of force, (©) A fact finder in an administrative, civil, or criminal proceeding in which the officer testifies, (©) Employees who obtain their employment by wilful misrepresentation or false statements may be dismissed from the Department. (©) Employees will not attempt ro conceal, divert, or mitigate their true culpability {na situation, nor will they engage in efforts o thwart, influence, or interfere with ‘an intemal or criminal investigation. (@) Employees will not use any improper or dishonest means to affect the outcome of any offical test, process, or procedure, (©) Employees will not falsely report themselves ill or injured, or otherwise deceive or attempt to deveive the Department as to the condition oftheir health,By copy of this memo, Officer Richter is hereby advised of ths indefinitely suspended and that the suspension may be appealed to the Civil Service Commission by filing with the Director of Civil Service, within ten (10) days ater receipt ofa copy ofthis memo, aproper notice of appeal in accordance with Section 143.010 of the Texas Local Government Code. By copy ofthis memo and as required by Sestion 143.057 of the Texas Local Government Code, Officer Richter 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 & 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 sates thatthe 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. Ia order to appeal to a hearing examiner, the original notice of appeal submitted to the Director of Civil Service must state that appeal is made to a hearing ‘TO WHOM IT MAY CONCERN: Thereby acknowledge receipt of the above and foregoing memorandum of indefinite suspension and I have been advised that if I desire to appeal that [have ten (10) calendar 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 oa Brerawaatth, —— ggftbe te acne we