My Statesman – by Tony Plohetski
NEW ORLEANS — In a case that could have national implications for law enforcement officers, a former Austin police detective pressed in federal appeals court Tuesday to preserve a shield that is protecting him from prosecution on manslaughter charges in a controversial shooting.
The issue focuses on whether Charles Kleinert, who retired from the Austin Police Department after the July 2013 shooting, should continue receiving federal immunity in the death of Larry Jackson Jr. under a rarely cited constitutional provision — a potentially precedent-setting decision critics contend weakens the ability of local authorities to hold police accountable.
In oral arguments before the 5th U.S. Circuit Court of Appeals, attorneys for Kleinert argued that because Kleinert was serving on an FBI-led task force — and wasn’t acting in his role as a local law enforcement officer — at the time of the shooting, he isn’t subject to prosecution by the Travis County district attorney’s office.
Yet prosecutors have questioned the use of the provision to supersede state law in the case, and they have argued that the manslaughter charge, for which Kleinert was indicted by a Travis County grand jury, should go forward. They have insisted that Kleinert’s primary role the day of the shooting was with the Austin Police Department, and that key facts in the case remain in dispute and should be settled in trial.
Kleinert’s case marked what experts believe is the first time nationally a local police officer has attempted to seek immunity by arguing that his participation in a task force protected him. U.S. District Judge Lee Yeakel, in his October ruling, appeared to expand the protection that was meant for officers from such agencies as the FBI and U.S. Drug Enforcement Agency.
The law was intended to create a uniform protection for federal agents whose work might take them back and forth across state lines, against the whims of local prosecutors, should agents ever be accused of excessive force. Legal experts say federal officers can still be criminally charged for using excessive force, but that the standard is much more permissive than state laws generally are.
The Kleinert case comes at a time of intense scrutiny of police conduct nationally, and if Yeakel’s ruling stands, it could help set a precedent, shielding potentially hundreds of local and state police officers on federal task forces if they are involved in a questionable shooting.
The American-Statesman reported in November that dozens of Central Texas police officers, including 50 in the Austin Police Department, serve on federal task forces.
“The lower court’s opinion amounts to a blueprint for police officers affiliated with federal agencies to evade accountability for conduct that would otherwise be regarded as criminal,” said Dustin Chicurel-Bayard, spokesman for the Southern Coalition for Social Justice, which worked with the Texas chapter of the NAACP to file a brief in the case earlier this year.
“This danger is particularly acute in light of the recent proliferation of joint state-federal task forces and the increasing number of officers who could exploit this loophole by invoking some nexus to federal authority,” he said.
On the afternoon that Kleinert shot Jackson, Kleinert, who was serving on the Central Texas Violent Crimes Task Force, was at a Central Austin bank investigating an earlier robbery. Jackson showed up and tried to enter the bank, which was closed, identifying himself as a customer.
When Kleinert tried to question him more closely, Jackson ran away. Kleinert eventually caught up to Jackson, after commandeering a civilian’s car, and the two became involved in a struggle in which Kleinert said his gun accidentally fired, hitting Jackson in the neck.
On Tuesday, three judges sharply questioned both sides about facts of the case, focusing on the legalities of the federal immunity, other cases in which the shield has been applied, and Kleinert’s actions that day.
Prosecutor Rosa Theofanis said that, at the time of the incident, Kleinert was solely investigating state crimes, even though Kleinert attorney Randy Leavitt said Kleinert was at the bank handling a federal offense.
Judges questioned whether Kleinert’s decision to have his gun out during the struggle could be considered self-defense, in which immunity has been previously granted in most other cases.
But Theofanis responded that Kleinert never asserted that defense during the investigation or in grand jury testimony.
“The cases make it clear that ‘accident’ is not a federal defense,” Theofanis said.
The judges said they also recognize that many facts of the case haven’t been resolved, including the position of Kleinert when his gun fired and whether his testimony is fully supported by forensics. But Leavitt responded that both sides have agreed to let Yeakel resolve any dispute, and that he did so in Kleinert’s favor, finding that the shooting was accidental.
Judge Jennifer Elrod focused on whether Kleinert’s actions, including the decision to draw his gun, were reasonable for officers in similar circumstances.
Leavitt said it was, but agreed that what happened had a deadly outcome.
“This was an accidental discharge, no doubt about it,” Leavitt said.
http://www.mystatesman.com/news/news/appellate-ruling-in-austin-officers-case-could-hav/nsgJR/
“… a potentially precedent-setting decision critics contend weakens the ability of local authorities to hold police accountable.”
Way too late for THAT.
ZERO accountability has been rampant for years.