APD exonerates police officers who shot man with baby in car. His family wants the jury to see internal investigation documents. A federal lawsuit raises questions about APD’s internal investigation – News

A leaflet posted near the site of Alexander Gonzales’ shooting on Wickersham Lane in 2021 (Photo by John Anderson)

In January 2021, an off-duty police officer shot at a car after he said the car’s driver, Alex Gonzales, pointed a gun at him. Moments later, police killed Gonzales and wounded his girlfriend, Jessica Arellano, while their two-month-old child was in the back seat.

In 2022, a Travis County grand jury declined to indict either officer for the murder. Then APD leadership declined to take disciplinary action against the two officers. Now, a civil lawsuit over the police killing of Gonzales is raising new questions about the Austin Police Department’s use of a secret personnel file (known as a G-file) that stores certain records related to disciplinary investigations.

Lawyers representing members of the Gonzales family argue that the secret file contains important evidence that jurors should see when the case goes to trial as scheduled on Dec. 2. Attorneys for the city of Austin are fighting to keep the file confidential.

This case is further evidence that the city is fighting to keep the G-Files secret, even though Austin voters overwhelmingly approved the Austin Police Oversight Act a year ago and therefore voted to abolish the secret files.

The “G-File” is where APD stores the Internal Affairs Division’s complete investigative records for misconduct investigations that do not result in severe disciplinary action against officers (even if the allegations are proven). Investigations that result in severe disciplinary action are added to the officer’s personnel file, which is available to the public through the Texas Public Information Act.

After officers Luis Serrato and Gabriel Gutierrez shot Gonzales, both the Office of Police Oversight and the Community Police Review Commission recommended that former Police Chief Joseph Chacon fire Gutierrez, but Chacon declined to discipline the two officers, meaning that the department’s investigation into the shooting was kept under seal in the G-File.

Although the contents of that file are not publicly available, attorneys for Gonzales’ family obtained the full investigative file through open discovery. They say the information contained in the file would not only be critical to their case, but would also provide the public with insight into the nature of APD’s internal investigation into the shooting – a process that, one plaintiffs’ expert concluded, was not conducted “according to generally accepted standards and practices” of internal investigations.

“Plaintiffs in the Gonzales case are asking the court to put an end to (the City of Austin’s) schemes.”– Donald Puckett, attorney for the Gonzales family

“The disputed facts and events of this case cannot be understood at all without reference to APD’s IA investigation and the information resulting therefrom,” wrote Donald Puckett, one of the family’s attorneys, in a May 13 motion filed after the city requested on May 6 that the G-File materials be classified as confidential.

Because the city argues that the file is confidential, motions filed in the case that reference material from the G-File are heavily redacted — as is the transcript of testimony taken by attorneys for David Shand, the Internal Affairs investigator who led the investigation into Gonzales’ shooting.

Puckett argues that the city has “abandoned any confidentiality” regarding the materials by using them as part of its own litigation in the case. For example, an expert witness report for the defense filed March 18 quotes extensively from statements made by both Serrato and Gutierrez to Internal Affairs investigators. The selective disclosure of G-Files materials in this way, Puckett argued in a May 21 motion, shows how the city is using the secret files as a “sword and shield” in the case.

The city’s argument to preserve the confidentiality of the G-File relies on the state law that allows police departments to retain the file in the first place. “Every Texas appellate court that has examined the issue has concluded that the records contained in this optional file … are confidential or privileged,” City Attorney Anne Morgan argued in the May 6 motion. In criminal cases, the city has successfully denied several subpoenas from prosecutors demanding G-File material using the same argument.

But that optional confidentiality is enshrined in state law, which Puckett says doesn’t apply to the current lawsuit, which was filed in federal court, where he says different rules regarding confidentiality apply.

“APD has worked hard to shield its own investigations of these incidents from public transparency and accountability,” Puckett wrote in the May 13 motion. “The Gonzales plaintiffs ask the court to put an end to COA’s machinations with respect to the internal investigation file and information from this investigation.”

After both parties filed briefs regarding the confidentiality of the G-File, U.S. District Judge Robert Pitman – who is presiding over the Gonzales case – referred the plaintiff’s motion to U.S. Magistrate Judge Dustin Howell for a ruling.

It’s unclear when a ruling will be made, but Puckett says it could be weeks away. If Howell rules in favor of the plaintiffs, APD’s internal investigation records would bring an unprecedented level of transparency to the department’s internal accountability process.