Family Suing Over 2011 Austin Police Shooting of Racially Profiled 20-Year-Old

Grand jury wasn't told about racial profiling report because the officers weren't suspended for it

Texas DPS

A grand jury declined to charge an Austin police officer for shooting 20-year-old Byron Carter Jr. despite him being the passenger, not the driver, of a suspected stolen car, and now the family is suing in civil court in a trial that began today. Local CBS affiliate KHOU explains what police say happened:

[Officer Nathan] Wagner and his partner were on bike patrol the night of the shooting in May of 2011, near 8th Street and Interstate 35. They were on a special anti-burglary initiative when they say they saw Carter and his friend looking into cars like they were trying to steal them. According to police, the men got into a car and when the officers approached, the driver struck one of the officers with the car in an attempt to get away.

That's when Officer Wagner fired his gun four times and hit Carter as he sat in the passenger seat. One of those bullets struck Carter in the back of the head and killed him.

Local NBC affiliate KXAN, meanwhile, provides part of the family's account of events:

According to court documents filed by Byron Carter Sr.'s attorney in the lawsuit, Wagner and Rodriguez admitted in depositions that Carter and his friend were not committing any crimes when they spotted them.  The officers were looking for car burglars and thought the two were acting suspiciously. 

The court documents show the officers said it was dark, they did not use flashlights, and used the "cover of the night" and the "element of surprise" to sneak-up on Carter and the juvenile driver.       

A civilian review board previously found the officers engaged in racial profiling when they targeted Carter and his friend. The grand jury did not have that report available to them because it did not result in a suspension of at least one day.

Comments

[John]

I think the civilian review board was full of shit here. There is nothing on 8th and I 35 in Austin beyond cars parked by people going to the bars on 6th street. If someone is walking along at night looking into car windows, the cops do have a right to stop them and ask what they were doing.

According to police, the men got into a car and when the officers approached, the driver struck one of the officers with the car in an attempt to get away.

I am as anti-cop as anyone. But if I get in a car and run over a cop on a bike, I really can't complain when his partner shoots me. Look at it this way, if the two guys hadn't been cops, but just two ordinary people riding their bikes and this asshole had run over one of them and his friend shot the guy driving, would Reason care? I wouldn't. I don't think this is a very good case to use to further the cause of stopping police violence.

[Lyle]

I agree with you.

[tarran]

I disagree to a point.

If they were getting into their own car, and were on the verge of driving off when the police surprised them, it's possible that the driver had a reasonable fear that he was about to be carjacked and speeding off and hitting the would be carjacker would be legitimate act of self-preservation.

It's also possible that the driver never saw the police officer at all.

Unlike fluffy in regards to the Zimmerman case, I am not making a claim that this is what had to have happened, rather I can see a couple of very plausible scenarios where the shooting was unjustified and thus a criminal act.

[John]

If they were getting into their own car, and were on the verge of driving off when the police surprised them, it's possible that the driver had a reasonable fear that he was about to be carjacked and speeding off and hitting the would be carjacker would be legitimate act of self-preservation.

So what? That just means the driver wasn't actually committing a crime. But we judge these things on what the police subjectively knew and should have thought at the time. It may be that all you say is true and that the police also mistakenly thought the guy was trying to kill them. That makes it a tragic accident but doesn't make it a bad shoot.

And getting into your car, doesn't require looking into other car windows. So whatever they were doing, it was more than just getting into their car. Moreover, 8th and I 35 in Austin is a very safe neighborhood. The idea that they saw two guys and freaked out thinking they were being car jacked is just ridiculous.

Occam s razor here. What is the most likely explanation for the facts we know? That these guys were out casing cars to break into, saw the cops, got in their car to flea, and panicked and ran over one of the cops and the other cop shot him in response. Maybe that is not what happened. But more than likely that is what did happen.

[SugarFree]

How does shooting the passenger fit into the narrative the cops worked out among each other?

[John]

First, show me the narrative was invented. You don't help your case by immediately pretending that every person who ever gets shot by the police is innocent and everything ever said by the cops is some cooked up story.

Beyond that, the guy driving ran over the cop and the other cop fired back and missed. It happens. The passenger's death lies with the fuckhead driving who decided running over a cop was a good idea.

[SugarFree]

You don't help you case by always believing the last man standing in all of these cases.

I know we'll never get them on murder, but at least fire the fuckers.

[John]

Why? Seriously. What if they were not cops but just two guys on bikes? And this guy ran one of them over and the other guy shot back? Don't tell me for a minute you would have any sympathy for them. You wouldn't. I get pissed off when cops kill some innocent person or some person who obviously is not a threat to do death or bodily harm. But you run over someone, anyone, with a car, you deserve whatever happens to you.

[John]

Why? Seriously. What if they were not cops but just two guys on bikes? And this guy ran one of them over and the other guy shot back? Don't tell me for a minute you would have any sympathy for them. You wouldn't. I get pissed off when cops kill some innocent person or some person who obviously is not a threat to do death or bodily harm. But you run over someone, anyone, with a car, you deserve whatever happens to you.

[John]

Why? Seriously. What if they were not cops but just two guys on bikes? And this guy ran one of them over and the other guy shot back? Don't tell me for a minute you would have any sympathy for them. You wouldn't. I get pissed off when cops kill some innocent person or some person who obviously is not a threat to do death or bodily harm. But you run over someone, anyone, with a car, you deserve whatever happens to you.

[John]

Why? Seriously. What if they were not cops but just two guys on bikes? And this guy ran one of them over and the other guy shot back? Don't tell me for a minute you would have any sympathy for them. You wouldn't. I get pissed off when cops kill some innocent person or some person who obviously is not a threat to do death or bodily harm. But you run over someone, anyone, with a car, you deserve whatever happens to you.

[SugarFree]

But you run over someone, anyone, with a car, you deserve whatever happens to you.

Who'd the passenger run over?

[Fluffy]

What if they were not cops but just two guys on bikes?

Two guys on bikes trying to chase some black kids they thought were car thieves, but weren't?

[itsnotmeitsyou]

I'm usually on board with most of the cop hate here at H&R, but I just can't see this being a cut and dry case of police misconduct.

We don't know if they identified themselves or not, but let's assume they didn't.

These are the things we know happened. 2 guys got into a car, two other guys came close to the car on bikes. The driver gunned it and ran over one of the guys on a bike. The other guy on a bike shot the car up.

Was the driver in the right for running over the guy on the bike?

[JW]

I'm usually on board with most of the cop hate here at H&R, but I just can't see this being a cut and dry case of police misconduct.

I start by presuming that the cop is lying through his teeth, which more often than not, will yield a positive hit.

The rest falls into line after that.

[sarcasmic]

and everything ever said by the cops is some cooked up story

I'll tell you one thing. Every police report of something that I witnessed was fiction loosely based on fact. Granted the sample size is small, but everything I've ever read that was written by a cop about something I saw with my own eyes was a lie.

[tarran]

Same here.

Hell, some of them have contained outright lies, including the time when the cops said they called me to inform me that my kids had been picked up traveling unattended on a train when they didn't speak to me.

[Zeb]

Cops make shit up even when they have no reason to at all. Perhaps it's just because they write up their reports after the fact and feel like they need to have more details than what they actually remember. But whatever the reason, it happens all the time.

[JW]

And getting into your car, doesn't require looking into other car windows. So whatever they were doing, it was more than just getting into their car.

I've looked into cars I didn't own, nice cars that I would love to own, but will never have the cash to do so. Being a minor gearhead, I want to see what the interior looks like.

Should they shoot me as I'm getting into my car to drive away?

[SugarFree]

Should they shoot me as I'm getting into my car to drive away?

What color are you?

[JW]

I usually do my window shopping in blackface, why do you ask?

[SugarFree]

Bang.

[Ted S.]

When I was visiting my European relatives decades ago, I looked into a bunch of the cars just to see how high the speedometers went.

Is it OK to shoot me for that?

[PapayaSF]

Should they shoot me as I'm getting into my car to drive away?

Depends on whether you'd run over a cop on a bicycle while doing so.

[Whahappan?]

We have no reason to believe the cop was run over, intentionally or not. I remember watching some stupid, urban, low speed chase on some TV show a while ago. The cops were chasing some "urban youths" around a neighborhood and a cop jumps out on foot from between parked cars, trying to grab the doorhandle or something. The driver actually swerved away from the cop, but when he finally pulled over, the baboon who pulled him out of the car was screaming "why did you try to run the Seargeant over?!!"

And in this case the cops say the didn't use flashlights, and snuck up on them. For all we know, the cop rode into the side of the car. And for the record, cops are pathological liars for the most part, so I don't know why anyone would give them the benefit of the doubt.

[itsnotmeitsyou]

He's a cop. They're notoriously shitty shots.

[tarran]

If the cops were sneaking up on them using the cover of night, it's unlikely that the supsected car-thieves decided to leap into their car to flee the cops.

Their behavior is suspicious, but the way to handle suspicious behavior is for the cops to announce themselves and cow the criminals into not attempting the crime rather than stalking them in hopes of catching them in the act.

I'm less sanguine about this being a legitimate shooting because the police do admit they were trying to sneak up on these guys.

[John]

Maybe they actually wanted to catch them? I am less sequin about this because it appears they were out breaking into cars. I look at it this way, if someone who owned one of those cars had caught these guys breaking into their car and shot them, I wouldn't give a shit. So why should I give a shit if a cop did it?

[SugarFree]

because it appears they were out breaking into cars

According to who? Oh, yeah. The guys trying to save their jobs and not be sued.

[John]

Yeah, and they just happened to take off and run not because they saw the cops but they were terrified of being car jacked. Yeah, two young fit males are just terrified of their own shadows and run in panic at the sight of anyone.

Come on Sugar Free. You are not this stupid. Admit the obvious. They were a couple of thieves, the cops had them and they tried to run over one of the cops getting away.

[SugarFree]

Whatever, John. You are skeptical of everything the government tells you unless it comes out of someone with a uniform and some boots you can lick.

[sarcasmic]

unless it comes out of someone with a uniform and some boots you can lick

He does have a thing for men in uniform. NTTAWWT

[Fluffy]

I tend to think this is a good, if somewhat reckless, shoot, because they hit another car while trying to flee.

But I have to ask - catch them, for what?

They hadn't actually stolen any cars.

Were the cops going to arrest them for thinking about stealing cars?

How can you say that the cops "had them" when they hadn't actually stolen a car yet?

[John]

Fluffy has it about right. It was at most reckless.

As far as the cops "having them", you make that classic Libertarians mistake of assuming everyone is just like you. Criminals are morons. Cops don't have to wait for them to break into the car. Chances are they will have stolen items or outstanding warrants or something or will just admit what they are there doing. So talking to them is usually enough. If catching criminals were hard, cops, who are usually not much brighter than the criminals, would never catch any.

[Dweebston]

Giving the appearance of wanting to attempt grand theft auto is a capital offense? Or is hitting a would-be assailant who may or may not have announced himself as a police officer?

Right, right, we have our answer: officer safety.

[John]

Yeah,

Dweeb, when you run over someone, you can't really bitch about them shooting you. Here is a top for you, don't try to kill people and they won't have the legal right to shoot you.

[Dweebston]

What is your stance on civilians shooting at police during no-knock drug raids? or the gentleman gunned down in his driveway while investigating a car alarm? Are both or either acceptable casualties because the victim may or may not have wittingly or unwittingly posed a threat to officer safety?

[sgs]

"Dweeb John, when you run over aggressively surprise someone at night, you can't really bitch about them shooting running from you. Here is a top for you, don't try to kill people sneak up on people and surprise them while armed without announcing yourself and they won't have the legal right to shoot run from you, and kill your idiot ass in the process because you had it coming."

[sgs]

John knows they were stealing. He KNOWS IT SO HARD.

[MisterDamage]

I'm thinking when someone deliberately sneaks up on another person, you can't assume that the person you are sneaking up on bumped into you deliberately.

[Zeb]

Maybe they actually wanted to catch them?

Then they are totally fucked up. Property crimes are real crimes that harm people. The police should not be allowing criminals to break into cars just so they can catch them in the act.

This is another horrible consequence of the war on drugs. With so many consensual crimes on the books, it has become normal to allow people to commit crimes (or even for the police to commit crimes) so that they can be caught in the act.
In a sane and just world where the only crimes are things that actually harm others, the police should never allow a crime to happen which they could have prevented. If the cops want to put out a decoy car and see if anyone steals it, that is one thing, but you don't play that game with other people's property.

[Loki]

Their behavior is suspicious, but the way to handle suspicious behavior is for the cops to announce themselves and cow the criminals into not attempting the crime rather than stalking them in hopes of catching them in the act.

That's no way to pad your arrest stats. /sarc

[itsnotmeitsyou]

Yeah, I'm not seeing this and thinking "police abuse". If anything, it shows why cops need to be better shots. He probably wasn't even aiming at the passenger. Of course, being a cop, he probably wasn't aiming at all.

[sarcasmic]

One bit of information we don't have is whether or not the cops identified themselves.

If two big guys dressed in black sneaked up on you in the dark, don't you think you might feel that you're in danger and react accordingly?

[John]

See above. It doesn't matter that the driver was mistaken and panicked. The police are like you and I judged by a subjective standard. What did the cop know and did he act reasonably given that. It may be that both sides mistook the other. But that makes it a terrible accident not a murder.

[sarcasmic]

But that makes it a terrible accident not a murder.

If the cops surprised these guys in the dark without announcing that they were law enforcement, then the cops created an entirely avoidable situation that resulted in their shooting someone to death. To me that's somewhere between accident and murder.

[John]

Bullshit. Just stop with this nonsense, that two young, healthy guys in their 20s in one of the whitest and safest places in Austin would panic if someone surprised them and floor the car running over the person.

It is retarded. And it makes you look like what Dunphy accuses you of being. Stop it. There are too many real cases of police abuse to bitch about this one and diminish credibility on the real ones.

[sarcasmic]

First off, notice the first word is "If."

Second, "struck" is not the same as "running over."

Finally, I'm not bitching. Just pointing out a scenario other than the one in your head.

You could be wrong, you know.

Haaaaaaaaaaa ha ha ha!

John wrong?

Never!

Haaaaaaaaaaaa ha ha ha ha ha haaaaaaa!

[SugarFree]

The car driving the car didn't try to run the bike cop down, he clipped a car, which was pushed into the bike cop.

[Brian Combs]

To suggest that 8th and I-35 is one of the safest places in Austin suggests a lack of knowledge of the town. Heck, shootings happen in the crowded part of 6th Street, which is much better lighted than 8th and 35.

I have no problem believing someone might think they were going to be car jacked if they saw someone sneaking up on them at 8th and 35.

[John]

I disagree Brian. Maybe it has changed in 10 years. But it is not a bad neighborhood. And certainly not bad enough for these two guys to be worried.

You guys need to stop inventing fantasies. Maybe these guys were working for the CIA and that is why they were jumpy. Come on.

[Sidd Finch]

8th and 35 isn't a neighborhood. To the west is 6th street. To the east is crackheads. To the further east is the barrio.

Also, nobody (yet, haven't read the whole thread) has noticed that this is right in front of the police station. (Which doesn't really mean much, since criminals are mostly idiots.)

[Sidd Finch]

And certainly not bad enough for these two guys to be worried.

I know people who've been mugged around 6th Street. Of course, they fit the profiles of muggee rather than mugger.

[Gray Ghost]

8th and 35 isn't a neighborhood. To the west is 6th street. To the east is crackheads. To the further east is the barrio.

Used to be. It's really gentrified in the last 5 years or so. That said, it's really dark underneath 35 where the parking lot is that I think the shooting happened, and I wouldn't be surprised if someone tried to carjack me there. Especially if I'd had a few adult beverages at Casino El Camino beforehand.

Finally, aren't there a bunch of cameras there? What did the video from them reveal?

[sgs]

"You guys need to stop inventing fantasies."

Says the mendacious asshole who KNOWS these guys are guilty, because come on, he was fucking there TEN YEARS AGO, and that alone makes him an unqualified expert, with his opinion above reproach.

[Dweebston]

Besides which, why should we want to encourage LEO to respond to such incidents with a level of bloody-minded vigor approaching vengeance? If the driver had menaced the officers aggessively (because, you know, words like aggression have definitions), defensively shooting at the vehicle is obviously justifiable. Instead, the uninjured officer fired four shots into the back of a fleeing vehicle. Rather than, say, calling for a cruiser to pursue and detain the suspects. How this can be classed a "good shot" is beyond me.

[Zeb]

It doesn't matter that the driver was mistaken and panicked. The police are like you and I judged by a subjective standard.

That is really what I see as the biggest problem in cases like this. If they want to use stealth and surprise, then they shouldn't be allowed to react as they would if they were on uniformed patrol if someone mistakes them for a criminal. I don't know if that is what happened here, but it certainly does happen. If you are trying to disguise the fact that you are police, you don't get to shoot people who mistake you for a criminal. If they don't like it they should get a different job.

[PapayaSF]

I agree. Far too often the cases of "police abuse" on H+R don't look so bad once you look at the details.

Tarran: Come on, they thought they were being carjacked by a police officer on a bike? I don't buy it.

[tarran]

If I was starting my car in the middle of the night and a guy lunged out at me from the dark saying "freeze!", I'd assume it was a carjacker.

I certainly wouldn't stick around to be a victim.

I am not arguing that the suspected car thieves were innocent, I am merely arguing that if they were legitimately in fear for their lives, their actions weren't unlawful.

If I had snuck up on a bunch of shady looking characters and lept out to prevent them from "stealing" a car and then shot one of them because he ran over my foot in his haste to escape, I doubt I'd be getting off on some self defense claim, since my attempt to apprehend them would be an assault.

The police should have used their flashlights and announced themselves and made themselves visible. Yes, it might mean some would be car thieves evaded their grasp by being cowed. However, preventing a crime from occuring should be the goal, not allowing one to go down - particularly one that can cause hundreds of dollars of property damage - so that one can catch the bad guys red handed is not acceptable. If the family of the dead guy is correct, in choosing to surprise the suspects, the police initiated an unpredictable and chaotic situation and then used the situation to justify use of armed force, which is frankly criminal.

On the other hand, if the police had announced themselves, and the kids had tried running them over, that would be a horse of a very different color.

[sarcasmic]

On the other hand, if the police had announced themselves, and the kids had tried running them over, that would be a horse of a very different color.

Exactly. We don't know the whole story.

[SugarFree]

Oh, wait. They didn't "jump in a car and speed off." They were sitting in their parked car when the cops tried stealth mode. It's pretty damn hard to break into a car when you are sitting in your own.

[PapayaSF]

Yeah, but according to the police, they were casing other cars just before they got into their own.

I would also be very interested to know more about Carter and the survivor. Did either have a police record? Cal me cynical, but I doubt that these were two choirboys and random victims of police brutality.

[sgs]

"Yeah, but according to the police, they were casing other cars"

I've seen police lie enough to know what that's worth.

" Did either have a police record? "

Oh, ok, you're doing this now?

[PapayaSF]

Yeah, I think it's on point. The main objection to profiling is that it's unfair, because people who "look like that" may well be innocent. OK, but police work (like many other things) involves complex judgment calls. If these guys really were casing cars, then the police where right to approach them and investigate.

[Azathoth!!]

'A' parked car. It does not say that it was 'their' parked car.

Important distinction.

[John]

I am merely arguing that if they were legitimately in fear for their lives, their actions weren't unlawful.

And you are merely making an argument that is irrelevant for determine the cops' guilt. It doesn't matter who or what these guys actually were. It matters what the cops perceived and if they acted reasonably in light of that.

[tarran]

My fifth paragraph covers the culpability of the police.

The police should have used their flashlights and announced themselves and made themselves visible. Yes, it might mean some would be car thieves evaded their grasp by being cowed. However, preventing a crime from occuring should be the goal, not allowing one to go down - particularly one that can cause hundreds of dollars of property damage - so that one can catch the bad guys red handed is not acceptable. If the family of the dead guy is correct, in choosing to surprise the suspects, the police initiated an unpredictable and chaotic situation and then used the situation to justify use of armed force, which is frankly criminal.

[John]

Not announcing themselves does not make the shoot any more or less lawful. It is irrelevant to the issue.

[Zeb]

It shoudl be relevant, though. If the cops want to be all cloak and dagger, they can't assume that some people won't think they are criminals and act accordingly.
I think you are right that as the law now stands, it was a legal shoot. But I still think that the cops fucked up and caused a death that they shouldn't have.

[robc]

It doesnt matter, but it should.

[MisterDamage]

It's dark and the officers are deliberately trying not to be noticed, then they violently accost their victim, their victim isn't necessarily going to notice a uniform.

[Loki]

Look at it this way, if the two guys hadn't been cops, but just two ordinary people riding their bikes and this asshole had run over one of them and his friend shot the guy driving...

He didn't shoot the guy driving, he shot the passenger. Apparently the cop doing the shooting though he was in England or Japan for a second.

Either that or he was on the passenger side and figured "might as well shoot someone. Who cares if it's not the asshole driving, he'll stop when I shoot his buddy in the head."

[cavalier973]

Whatever happened to shooting the tires?

[tarran]

I think they only do that in movies. It's a good way to get someone hurt: it's really hard to hit the tires of a car in motion.

[SugarFree]

It's a good way to get someone hurt:

Like, say, shot in the head?

[tarran]

Aiming for the tires and hitting the front seat passenger on the head?

Only Massachusetts cops are so imprecise.

[SugarFree]

The court documents show the officers said it was dark, they did not use flashlights, and used the "cover of the night" and the "element of surprise" to sneak-up on Carter and the juvenile driver.

How about announcing yourselves, pricks? This isn't Assassin's Creed.

[Fist of Etiquette]

Did anyone else see the two looking into other car windows or are we taking the word of the shooter and his partner?

[T]

Sorry, cops don't get the benefit of the doubt when there's a dead body. I don't, they don't. Prove it's a good shoot or take the hit for negligent homicide or manslaughter.

[Suthenboy]

Why are y'all saying the driver ran over one of the cops? The report says he struck one with his car.

What does that mean? Was the cop injured? Hospitalized? Did he strike him deliberately?

Arent cops on bike patrol usually dressed very conspicuously? All of the ones I have seen were dressed like Lt. Jim Dangle.

I dont see enough info here to conclude that this was a good or bad shoot. I lean towards it not being a bad shooting, but I am highly skeptical of what the cops say happened.

[tarran]

The digital texan article says the guy he struck ended up being pinned between the suspects' car and a parked car and suffered serious injuries. This clearly was no glancing blow with a side mirror.

[Suthenboy]

OK, good shoot then.

[Loki]

Kind of. As tarran pointed out above, the cops should have announced themselves instead of trying to sneak up on them like a couple of shitty ninjas.

But of course, that doesn't pad one's arrest stats, and that's no way to get a reputation as a super-cop.

[Loki]

Oh, and the one doing the shooting should have been a better shot and shot the driver, not the passenger.

[robc]

I dont think amount of damage matters. If cops were in ninja mode, not a good shoot. If they announced themselves, its fine.

[sgs]

agree with robc

[SugarFree]

When they spotted the two suspects in a parked car, the driver of that car sped off, rammed another car that pinned down and severely injured Wagner's partner.

It sounds like he hit a car that then pinned the cop against something else, not pinned the cop between his car and another.

[tarran]

You're right, I misread it.

God Damn! Why can't journalists write clear declarative sentences anymore?!?

[SugarFree]

I don't know. It's an epidemic. They try for a certain economy of words, but end up making a hash of the information the words are supposed to convey.

[Loki]

Why can't journalists write clear declarative sentences anymore?!?

Because then there's no wiggle room. If it turns out that what they clearly wrote, in a concise, easily understood, declarative sentence turns out to be complete bullshit, they can't use the excuse of "Oh, that's not what I meant, you just misinterpreted what I wrote."

[Sidd Finch]

8th and 35 is an interesting place to jack cars. On one hand people park their cars there to get drunk on 6th Street. On the other hand, it's literally right in front of the APD.