Rookie convicted of negligent homicide failed firearms, other police testing

By Lise Olsen
The Houston Chronicle

HOUSTON, Texas — The rookie Houston Police Department officer who shot and killed a 14-year-old special education student in one of the decade's most controversial shootings earned his badge and gun despite flunking a crucial test of firearms handling as well as initial police field training, according to documents recently made public as part of a civil rights lawsuit.

Officer Arthur J. Carbonneau also failed 16 of 30 subjects in his mandatory Texas peace officers' test, including "use-of-force law," "use-of-force concepts" and "arrest, search and seizure," records show.

In field training, records show, he repeatedly got lost trying to find locations he was called to and became so rattled that trainers had to take over his calls. When the 23-year-old rookie was assigned to remedial training because of the problems, he mishandled the subduing of an agitated person — a mistake his instructor said could have cost lives.

Yet, Carbonneau still became a full-fledged officer in December 2002. Eleven months later, he killed Eli Escobar II, 14.

Revelations about Carbonneau's previous mistakes come in personnel documents made public only because of the civil suit. The Escobars' lawyers argue that Carbonneau was not a rogue officer as HPD claims, but rather the product of inadequate firearms training, supervision and screening by the department.

Carbonneau was convicted of negligent homicide for the Nov. 21, 2003, shooting of Escobar, who was being held down by another officer at the time. Escobar, a middle school student, was unarmed and not involved in the playground petty crime that Carbonneau had gone to investigate.

Just before being shot, Escobar called out "Mama, come and get me! Mama!" according to police records.

Suit's advancement rare

Escobar's parents, Lydia and Eli Escobar of Houston, filed a civil suit seeking damages and calling for improvements in firearms training for all HPD officers.

Despite objections from HPD, a federal judge has decided their case can move forward to the pretrial stage. It appears to be the first major lawsuit in years involving an officer-involved shooting in Houston that has been allowed to advance so far.

U.S. District Judge Lee H. Rosenthal ruled that the city of Houston had failed to prove it could not be held liable for the shooting because of systemic training failures. The record raises "issues as to whether HPD provided sufficient training for its cadets and officers ... to minimize the risk of accidental firings that can injure or kill," Rosenthal wrote in a 93-page opinion that summarized much of the evidence.

In its response to the lawsuit, the city of Houston has argued that its training was not only sufficient, but superior, and blamed the officer's errors alone for Escobar's death.

"There is no objective evidence" to indicate department training is "deficient," concluded the city's expert, Albert Rodriguez, who is commander of the Texas Department of Public Safety Training Academy in Austin, according to an affidavit filed as part of the lawsuit.

HPD defends hire

Rodriguez also defended the department's hiring of Carbonneau, despite his training errors and having two car accidents in one day as a new officer. Carbonneau was able to advance through officer training because of HPD's reliance on overall average performance scores rather than success or failure in a particular area, like use of force.

"In my expert opinion, there is no evidence to indicate that former officer Carbonneau exhibited any deficiency in handling firearms and/or that he had a propensity for using poor judgment prior to Nov. 21, 2003, incident," Rodriguez wrote.

An attorney for Carbonneau, Robert Armbruster of the Houston Police Officers' Union, declined comment.

Houston Attorney J. Michael Solar, who represents the victim's family, criticized the city for failing to apologize or make any real effort to learn how to prevent similar shootings.

"The Escobars are still waiting for Mayor (Bill) White, HPD Chief (Harold) Hurtt or any City Council member to publicly acknowledge their wrongdoing and apologize for killing their only child," he said.

Through his spokesman, White referred comment to the city attorney's office. But the assistant city attorney handling the case could not be reached for comment Friday.

Author David Klinger, an expert hired by the family and a former officer and criminal justice professor, analyzed HPD internal memos and found 26 "accidental" shootings by officers, mostly in close-quarter struggles with civilians, in the five years before Escobar died.

Klinger counted five similar accidental shootings in 2003 alone — including another controversial incident just three weeks before in which an HPD officer shot and killed a 15-year-old. Those events, Klinger concluded, were "the inevitable consequence of inadequate training in gun handling."

Carbonneau shot and killed Escobar, who had been playing video games at a friend's house, after the officer went to an apartment complex in the 4600 block of W. 34th to investigate a fight between two boys that had ended in bruises and a broken window.

Escobar wasn't involved.

The oversized 14-year-old sometimes rebelled, but he was used to police officers; his grandfather and uncle were both officers, according to his parents' depositions.

Still he became nervous, frightened and belligerent when the two HPD officers questioned him, police records and witness statements show. When he tried to go home, they pulled him to the ground and tried to hold him down.

'Accidental' shootings

Carbonneau admitted he then deliberately drew his gun and pointed it at Escobar, who was unarmed, but later claimed the gun went off accidentally. He was allowed to resign.

In 2005, he was found guilty of criminally negligent homicide and sentenced to 60 days in jail and five years' probation.

The city vigorously defended HPD firearms training in the lawsuit, blaming the incident on Carbonneau's "poor judgment" and failure to follow training.

Yet documents produced in the case show that senior HPD officers repeatedly called for improvements in firearms training, before and after the troubling shooting deaths of Escobar and another unarmed teenager just three weeks apart in "accidental" shootings in 2003.

The record includes a July 2003 memo from two senior HPD academy firearms trainers who complained to then-Chief C.O. Bradford: "We have no place to conduct hands-on officer safety/tactical training." Instead, trainers are forced to use academy driveways and office spaces, "neither of which are suitable or appropriate."

The city's own expert, Rodriguez, testified it takes about 3,000 repetitions to develop "muscle memory" in weapons handling — training that helps keep officers from accidentally firing or putting their fingers on the trigger except when absolutely necessary. HPD cadets draw their weapons just 50 times on average at the academy, the judge's opinion says.

'Not nearly enough'

Houston Police Union President Hans Marticiuc said the department has made incremental progress in firearms training since 2003, adding new tactical training and weapons handling courses for all officers.

"All these things are good," he said. "The problem is it's not nearly enough. In reality, there ought to be at least quarterly (firearms) training. The more you (practice), the more you don't have to think about it. It becomes instinctual."

From the evidence he reviewed, Klinger, a professor at the University of Missouri at St. Louis and author of a book on police shootings, concluded that HPD had known for years its firearms training was inadequate. He wrote that the department "acted with deliberate indifference to the inevitability of unjustified shootings" in circumstances such as those that resulted in Escobar's death.

The city of Houston attempted to end the case and have Klinger's evidence thrown out. But Judge Rosenthal's opinion, issued in September, opened the door for the Escobars to proceed to trial and publicly challenge the adequacy of HPD training. Specifically, she allowed arguments to proceed on several alleged training problems, including:

•Failure to ensure officers do not point their weapons or put their index figure on the trigger except when prepared to shoot.
•Failure to provide adequate hours of firearms training.
Allowing rookies who flunked tactical firearms training, like Carbonneau, to graduate the academy without additional remedial work.
According to the court documents, HPD academy students must complete several firearms tests, including the "stress-fire course."

In the stress-firing test, recruits are required to run through the course, often in a parking lot, find cover, draw their weapons and fire a series of rounds at various targets. Lights flash and sirens blare to confuse and distract. In the June 2002 graduating class, 22 of 38 in his group, including Carbonneau, flunked the test.

Copyright 2007 Houston Chronicle

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