Olsen Hearing Raises More Questions Than Answers on APD Policy

Disciplinary hearing for Officer Olsen, who shot and killed Kevin Brown after he ran from officers at a local nightclub (Photo by Jana Birchum)

After four days of testimony before the city's Civil Service Commission, it was still unclear last week whether fired Austin Police Department Sgt. Michael Olsen will get his job back – precisely because it is still unclear whether Olsen violated APD policy when he shot and killed 25-year-old Kevin Brown early on the morning of June 3, after a foot chase that began in the parking lot of Chester's Nightclub in East Austin and ended in the courtyard of a neighboring apartment complex.

So far, Olsen's disciplinary appeal hearing before the three-member panel has gone forward much like most other police-employment hearings – with a laserlike illumination of the specific reasons for a particular officer's discipline. With respect to Olsen's indefinite suspension (the civil-service equivalent of termination), APD Chief Art Acevedo, in a Nov. 28 disciplinary memo, pointed to Olsen's "failure to follow his training and his failure to exercise common sense and good judgment" in approaching Brown, who was suspected of illegally carrying a concealed weapon in the Chester's parking lot (a private security guard at the now-defunct club told police he thought Brown might use the gun to "bust back" at another patron). Acevedo further faulted Olsen for pursuing Brown on foot with his partner Officer Ivan Ramos, through the parking lot and a small wooded area, then over a fence and onto the property of Elm Ridge apartments, resulting in "avoidable" deadly force.

But as with other officer discipline cases heard in recent years, the city's handling of these matters suggests a pattern of missing the forest for the trees. By focusing on "winning" cases built on a narrow set of details, the city has failed to elucidate the APD policies at issue, thereby missing the opportunity to clarify a real, identifiable standard by which officer conduct should be judged. In Olsen's case, Assistant City Attorney Michael Cronig has, with impressive precision, homed in on several "tactics" that Olsen employed on June 3, convincingly arguing that those tactics were not actually "sound" police practice.

But whether Olsen's decisions were contrary to department policy is entirely unclear – in large part because there is no policy governing foot pursuits and because police academy training does not directly focus on such issues. Moreover, even if policy and training were in place, there is no evidence that they would be applied consistently across-the-board. Indeed, Ramos employed tactics similar to those used by Olsen that night, yet he was never disciplined nor counseled by supervisors regarding his actions.

According to the city, Olsen made several key tactical errors in approaching and pursuing Brown. First, several witnesses testified, Olsen should have waited for backup officers to arrive before approaching Brown in the club's parking lot, near the intersection of East 12th and Airport Boulevard. Going into a large crowd with just two officers was a bad decision, said APD Assistant Chief Leo Enriquez. After a dispatcher told Olsen that no backup units were immediately available to assist him in stopping and frisking Brown, Olsen should have just waited while keeping "an eye on" the suspect. "Unless [Brown] is waving a gun around," Enriquez said, he posed "no immediate threat." Second, if he wasn't going to wait for backup, Olsen should have formulated a better plan of approach before he and Ramos headed into the crowd; according to Ramos, he wasn't sure which man wearing a red shirt was their suspect. Third, after the chase began, Olsen erred first in following Ramos and Brown behind a storage container in the club's parking lot – a potentially deadly "funnel" where Brown could have potentially trapped the officers and shot them – and then erred again when he split off from Ramos as the chase continued into the apartment complex, where Olsen ran around the opposite side of one apartment building, apparently in an effort to cut off Brown's progress. Here, the city contends, Brown could have turned on Ramos, and Olsen wouldn't have been there to help. (None of the city witnesses could explain why one standard would apply to running through a narrow passage behind a storage container while another would apply to running through a similarly narrow space behind a building.) And fourth, Olsen erred in shooting Brown when he wasn't sure whether Brown was holding a weapon. Internal Affairs investigators determined the evidence "inconclusive" as to whether Olsen breached APD policy on use of force – in part, because Olsen's statements that he believed Brown was reaching for a gun were internally "consistent," as they were with the physical evidence provided by APD ballistics expert Greg Karim. Nonetheless, Enriquez said he believed Olsen had no cause to shoot at all: "When all is said and done," he said, Brown was shot twice in the back when he was "actually ... running away from Olsen, so there was not a threat there to address," other than "a fleeing suspect." (Enriquez said he did not review the physical evidence in the case, because he didn't feel he needed to do so.)

So, did Olsen use poor tactics contrary to his training? That isn't at all clear either. According to Sgt. Jason Mutchler, who was assigned to the training academy for nine years, including the time when Olsen was a cadet, the department has never had any policy or training on foot pursuits. Most of the academy training focuses on traffic pursuits, "because that's where the liability is," Mutchler said. (Cpl. John Coffey, who was also assigned to the academy, testified that the only foot-chase training given to cadets – the so-called "rabbit drill," which taught cadets to pursue a fleeing suspect until he could be caught – was eliminated from the curriculum after a participant was hurt.) Although both Mutchler and Coffey agreed that it might be advantageous to have backup when approaching a suspect in a crowd, Coffey said he's pursued possibly armed suspects by himself on many occasions and was never disciplined for doing so. Coffey said it "certainly isn't ideal" to split from a partner during a chase, but there is no policy or training that teaches officers not to do so. Indeed, Olsen testified that the only real training on foot pursuits comes during an officer's rookie tenure on the street; there, he said, he learned that in a foot chase the goal is to try to surround a suspect "so he has nowhere to go," which is the action he took with Brown. When Olsen and Ramos began their pursuit, Ramos was in the lead – and he did not make sure that Olsen, who'd lost his balance during the initial parking lot scuffle with Brown, was actually up and on his feet. As such, AC Enriquez agreed, Ramos did not demonstrate good judgment or police tactics. The "biggest difference" between Olsen's actions and Ramos' actions, Enriquez opined, "is that Sergeant Olsen took a life."

Ultimately, however, it might be Olsen's own assessment of his actions that decided his fate: During his disciplinary review board hearing in November, Olsen told Acevedo and others in his chain-of-command that after reviewing the case, "I feel even more comfortable with my decisions" that night. Olsen's apparent inability to see how he might have done anything differently is troubling, witnesses said last week, because it suggests that no amount of training or reflection might improve Olsen's performance. "Yes, that would give me concern," Mutchler testified. Supervisors expect officers to "look at past actions and hope that they would ... think about how they could handle [a situation] differently," he said.

Indeed, AC David Carter testified that he believed the fatal shooting could have been averted, and that is ultimately the reason Olsen should not have his job back: "All humans make mistakes," he said, but it "seems to me [this] situation was avoidable."

Acevedo is scheduled to testify today (Thursday), and the commission is slated to rule in the case on Friday, Feb. 29.