Victoria police officer to appeal firing over tasing
Jan. 11, 2015 at 6 a.m.
Updated Jan. 11, 2015 at 7:23 a.m.
Greg Cagle, a Texas Municipal Police Association lawyer hired to represent former Victoria police officer Nathanial Robinson, will present an appeal to the Victoria assistant city manager within the next two weeks.
"I thought it was important for people to know he didn't do anything that was a violation of policy or law," Cagle said. "There may be some issues of law we need to talk about, and tactics that I don't think were considered."
Robinson was fired Monday after an internal investigation into his conduct found he violated three department policies - conduct and performance, use of force and arrest without warrant - during a Dec. 11 traffic stop.
The Victoria District Attorney's office is examining a criminal investigation into the matter led by the Texas Rangers.
District Attorney Stephen Tyler said he plans to review the material and conduct a legal inquiry with the Rangers' help. Possible charges could be unlawful restraint, injury to the elderly and misconduct.
The officer's attorney said he plans to break down the arrest further for the assistant city attorney to show how the arrest, detention and stop were all constitutionally lawful.
"There's just not going to be anyone that has a problem from a constitutional perspective on this case," he said. "It came at a bad time in the country - the timing of it was bad, but clearly the stop was legal, the detention was lawful, the request for the guy to stand there was a lawful, legal request, and then his resistance was a basis for him to be arrested."
Dash camera video footage of the arrest and tasing of 76-year-old Pete Vasquez gained national attention and divided viewers' perceptions about whether the stop was legal or if excessive, criminal force was used.
The footage showed Robinson, a 23-year-old officer with 18 months of on-the-job experience, pull Vasquez over for an expired inspection sticker in December. The conversation between the officer and Vasquez wasn't audible, but the situation escalated quickly. The officer attempted to detain Vasquez, threw him to the ground and then tased him twice.
The footage didn't show what happened between the two on the ground.
Cagle said Vasquez kicked the officer, saying the level of resistance was a basis for the tasing and arrest.
"There's nothing unreasonable at all about that level of force," Cagle said. Vasquez "wasn't injured. He scratched his elbow and hurt his feelings, but those aren't injuries in the constitutional sense."
After the incident, Vasquez was taken in handcuffs in the back of a police cruiser to Citizens Medical Center, where he was later released from police custody.
Robinson was immediately put on administrative duty and then paid leave following the incident.
Kevin Lawrence, Texas Municipal Police Association executive director, said it has become more common for administrators and politicians to not stand behind police officers under attack.
"Why we're not giving them more benefit of the doubt today, I don't know," he said. "I think it's a very dangerous path we're on."
Lawrence, who was a Texas officer 22 years before taking his job with the Texas Municipal Police Association, said sometimes officers make mistakes and sometimes they get bad advice about what the right thing is.
"But, those (officers) need to be commended for at least making the effort, and when at all possible, we need to retrain them," he said. "We need to support them, give them the benefit of the doubt, and when possible, give them a second chance."
The Texas Municipal Police Association provides officers free, outsourced legal services to assist in all job-related administrative, criminal and civil suits an officer may face, as long as they were employed as an officer the date of the underlying event.
While a majority of Texas officers - about 60 percent - work for agencies that offer due process, Victoria Police Department doesn't offer its employees that procedural process before they are terminated, Lawrence said.
"If you work for an agency that doesn't have any due process, (where) they don't have any meaningful job protection, the officer just simply becomes political baggage," Lawrence said. "It's a whole lot easier for the chief of police, the city manager, to bow to the political pressures and just get rid of the problem."
Due process protection requires that employees have a fair procedural process if the termination is related to a liberty or property interest.
Due process "basically says if you're going to be disciplined, that you have the right to appeal that to one of two places: a panel of three citizens appointed by city manager and approved by city council, or to an independent third-party hearing investigator," Lawrence said. "That's the heart and soul of (due process) right there. I think Victoria would do well to adopt that."
City Attorney Thomas Gwosdz said the city's due process policy is that employees who are terminated have five days to file a written request for an appeal with Assistant City Manager John Kaminski.
Kaminski then has 10 days to meet with the employee and 30 days to make a written recommendation to City Manager Charmelle Garrett.
Garrett makes the final decision, Gwosdz said.
"It is my professional opinion that we provide due process to employees who have been terminated," Gwosdz said.
He would not disclose whether the city has received a request for an appeal in the past week.
Victoria Police Chief J.J. Craig cited policy violations in his decision to fire Robinson, which included the points that an officer must only use force when necessary to accomplish lawful objectives, to make arrests to overcome resistance and to have probable cause for arrest without warrant.
"The problem with police work is that officers usually have a second or two - sometimes three when they're really lucky - to make decisions," Cagle said. "Then, the people that sit in judgment of police officers have days, weeks, months in sterile environments to sit and make decisions, and say, 'I could have done it different. I could have done it better, faster and smarter.' "
The good news, he said, is the Supreme Court has recognized that.
"The questions is not if they did it in the best way, or the smartest way, or the fastest ways," Cagle said. "The question is was it reasonable; and I can tell you everything he (Robinson) did was reasonable."
Cagle said he doesn't claim to understand the reasoning behind the chief's level of discipline and said he counts on hearing that during the appeal process.
"He wants his job back," Cagle said of Robinson. "He'd only been there 18 months and had no complaints, no disciplinary history. ... If you think he could have done it different or better, then that's a training issue. I think he deserves his job back, and that's what we're going to try to do."
Melissa Crowe contributed to this report.