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November 29, 2007
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Austin sergeant fired over fatal shooting

The sergeant has said he shot after the man appeared to be drawing weapon in a June encounter.

By Tony Plohetski
The Austin American-Statesman

AUSTIN, Texas - Austin Police Chief Art Acevedo on Wednesday fired an officer who fatally shot a man during a foot pursuit outside an East Austin nightclub in June, saying in a blistering 10-page report that Sgt. Michael Olsen unnecessarily fired a second shot into the man's back as he lay facedown before giving him a chance to comply with an order to show his hands.

Acevedo said in the disciplinary memo that Olsen repeatedly demonstrated poor judgment, showed a lack of common sense and failed to follow his training in the moments before the June 3 shooting, including not waiting for backup to investigate whether Kevin Brown had a gun outside Chester's nightclub on East 12th Street. He said it was conceivable that the first shot that struck Brown, hitting him in the back, may have been within Police Department policy but that Brown did not pose an immediate threat after he fell to the ground.

"The totality of the circumstances do not justify or support a reasonable belief that an ordinary or prudent officer would act or think in a similar way that Sergeant Olsen did," Acevedo said in the memo. "Consequently, when Sergeant Olsen made the decision to shoot at Mr. Brown after he was wounded and lying face down on the ground, that use of deadly force was not justifiable."

In an interview Wednesday night, Olsen defended his actions and said, "I am very disappointed that this chief who came in and said he was going to support his officers ... went back on that. If I can't defend myself when I feel a deadly threat from a man who has a gun, what do officers have to do? Do they have to wait to see a gun or be shot at? If that's the case, we'll be at a lot of police funerals."

Olsen's attorney, Jason Nassour, said his client has filed an appeal to the city's civil service commission, which must have a hearing and issue a ruling within 30 days. If the commission does not give him his job back, Olsen will appeal to a state district judge, Nassour said.

"The chief is a coward," Nassour said. He accused Acevedo of "trying to be liked instead of respected by the public."

Olsen has said that he was investigating a report that Brown had a gun and that Brown began to flee. He said he fired when Brown reached toward his waist, as if drawing a weapon.

According to a statement to homicide investigators made public in August, Olsen said he was "100 percent sure" Brown had a gun when he shot the man.

Olsen said that he fired several rounds and that Brown fell facedown and continued reaching around his waist.

"I still felt threatened by his actions and thought he was still trying to get the gun out," Olsen said. "I paused and hesitated, especially because he was facedown and on the ground, before making the decision to shoot several more rounds to ensure I ended the threat."

Documents said Olsen fired four rounds, two of which hit Brown.

A gun was recovered at the scene about 25 feet from where Brown was shot.

A Travis County grand jury reviewed the case and in August declined to indict Olsen on any charge.

Acevedo said that ruling "has no bearing" on his decision, which was unanimously supported by a residents panel for the police monitor's office that reviewed the case. The panel is made up of community leaders, including a small-business owner, two attorneys and a couple of retirees.

Among Acevedo's other findings:

Olsen's in-car video camera recorded a comment he made to another officer in which he said he had gotten angry with residents twice that day. "This revelation leads me to question whether Sergeant Olsen was predisposed to lose his temper that night, which might have affected his judgment," Acevedo said in the memo.

Despite requesting backup and knowing that another officer was only seconds away, Olsen decided to go "hands-on" and confront Brown, which Acevedo said he should not have done without a sufficient number of officers.

Olsen did not communicate with other officers to develop a "measured and coordinated" response, for which he was responsible as the supervisor at the scene. Olsen left his partner during the chase and created a potential cross-fire encounter in which the officers could have accidentally shot each other.

Olsen could have dropped to the ground, hidden behind a tree or positioned himself at the corner of a building if he thought Brown was going to shoot him.

The firing of Olsen is among the most crucial decisions Acevedo has confronted in his four months in office, potentially placing him at odds with some community leaders and the rank-and-file, both of whom have praised the new chief.

Austin Police Chief Art Acevedo on Wednesday fired an officer who fatally shot a man during a foot pursuit outside an East Austin nightclub in June, saying in a blistering 10-page report that Sgt. Michael Olsen unnecessarily fired a second shot into the man's back as he lay facedown before giving him a chance to comply with an order to show his hands.

Acevedo said in the disciplinary memo that Olsen repeatedly demonstrated poor judgment, showed a lack of common sense and failed to follow his training in the moments before the June 3 shooting, including not waiting for backup to investigate whether Kevin Brown had a gun outside Chester's nightclub on East 12th Street.

It is the second time he has fired an officer who used deadly force. Acevedo also dismissed officer Wayne Williamson, who fired several shots March 14 while chasing a burglary suspect outside a shopping center near U.S. 183 and Manor Road. The shots did not hit anyone, but one bullet struck a van with two children inside.

Williamson finished a 10-month Army tour in Iraq last year. He and his lawyer have said that his experience in a war zone probably blurred his split-second judgment and affected his decision to shoot.

In a statement from the Austin Police Association, the union said it "adamantly supports Sgt. Mike Olsen's right to pursue the appeal of his indefinite suspension."

The shooting involving Olsen happened two days after city officials announced that the U.S. Justice Department would investigate how Austin officers use force, particularly against minorities. Brown, who had a felony assault and misdemeanor drug conviction, was African American; Olsen is white.

Nelson Linder, president of the Austin chapter of the National Association for the Advancement of Colored People, said Acevedo's decision Wednesday "sends a powerful message to the entire city that all human life is important and that if you use deadly force, you should be sure it is absolutely necessary."

Adam Loewy, who is representing Brown's family in a federal lawsuit against Olsen and the Police Department, also praised Acevedo's decision, saying it is "evidence that officer Michael Olsen employed excessive force against Kevin Brown and violated Kevin Brown's civil rights."

"We applaud the department's decision, but it should have never come to this point, because we don't believe Sgt. Olsen should have been working that night to begin with," Loewy said. "The red flags were present."

Olsen, whom friends and co-workers have described as a church-going father and conscientious police officer, was suspended for 60 days after an incident in 2002 in which he assaulted a bystander on Sixth Street and was accused of lying about it in his police report. He was indicted on three charges of tampering with a government record, but the cases were dismissed.

Two years earlier, he was involved in the in-custody death of a man who was drunk and high on cocaine when he was confronted by police for shooting at parked cars.

Olsen was one of the officers who cuffed and tussled with Steven Bernard Scott while he struggled with police. Scott died after the encounter.

Acevedo cited Olsen's history with the department as a reason for the dismissal.

Internal affairs detectives also had said that Olsen violated policies concerning the use of good judgment and common sense in his tactics leading up to the Brown shooting, according to Olsen's attorney. However, the investigators said they could not determine whether Olsen "unnecessarily used deadly force in this encounter."

City Manager Toby Futrell hired a consultant this month for an independent review of that internal affairs investigation.

According to that review, the results of which were released Wednesday, the internal affairs investigation fell short by failing to more fully explain the ballistics evidence and trajectory of the shots and by not including in their analysis Olsen's credibility, given that he's been accused of lying in the past.

Although the investigation used video from Olsen's patrol car as evidence, the report noted that video from all units that responded to the scene should have been viewed as well.

Video from one of the patrol cars at the scene, which was not used in the investigation, captured the sound of gunshots, the report said.

However, the three-member review team said the internal affairs investigation's conclusions were "ultimately correct."

"It is clear that Sergeant Olsen's tactics lacked sound judgment and unnecessarily and unwisely placed himself and (another officer) in mortal danger," the document said. "This ultimately led to the situation where Sergeant Olsen felt that the use of deadly force against Mr. Brown was his only option."

In a news conference outside police headquarters Wednesday night, Acevedo asked the community to teach children and teens to comply with requests by police officers.

"Kevin Brown played a role in this tragedy by not complying," Acevedo said. "(If) he simply just submitted to arrest and waited his day in court, he would be here today."

Copyright 2007 Austin American-Statesman

Full story: Austin sergeant fired over fatal shooting






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