On April 21, 2020, Houston Police Sergeant Benjamin LeBlanc, along with Officers Luis Alvarado, Patrick Rubio, and Omar Tapia responded to several 911 calls about a possibly suicidal person, later identified as Nicolas Chavez. Within minutes, Chavez yelled that he was had mental problems (“MHMR”)[1] and that he wanted the officers to kill him. By the end of the 15-minute encounter, they had done just that.
Chavez had a piece of rebar in his hand which, due to the darkness and the manner in which Chavez was holding it, the officers believed was a knife. Then Chavez came at the officers, who tried to use a taser and beanbag or soft impact rounds from a less-lethal shotgun to stop him. Neither worked, and one officer fired two rounds from his service weapon, which stopped Chavez. Chavez fell to the ground, but still had the rebar,[2] and prevented the officers from rendering aid. At some point he tried to get up and go at the officers again, and one additional shot was fired, stopping him. From that point forward, Chavez appeared to be unable to get up or stand.
But Chavez was able to pull the taser to him by the wires, until he picked it up in his hand.[3] At that point the four officers fired a total of 21 rounds into Chavez, killing him. And that’s where the problem begins.
You see, the first video was taken by a civilian witness by cellphone and posted to the internet, where the police administration could not control the narrative. It was also impossible to justify, unlike the first three shots. You see, Texas law has a requirement that in order to use deadly force, and that requirement is contained in the “Justification Excluding Criminal Responsibility” chapter of the penal code. It states that deadly force may be used in self-defense when “the deadly force is immediately necessary [] to protect the actor against the other’s use or attempted use of unlawful deadly force. . . .”[4]
And that’s where the problem arises. In the videos, it appears plainly obvious (at least to me) that Chavez was unable to do much more than crawl. If he can’t even stand, then he cannot charge at someone, and you can reduce the immediate necessity to shot him by backing up and increasing the size of the perimeter. While it may be necessary to shot someone with a taser who is charging at you, it’s not necessary to do so when the guy cannot stand up.
This is also where the idiots will jump up and say that the police don’t have a duty to retreat, and they are correct. But not having a duty to retreat doesn’t mean that retreating is a bad idea. This isn’t the military; we are not taking ground that is paid for by soldiers’ blood. We can back up and wait him out.[5]
At one point in my police career a number of officers from two different agencies sat on a suicidal subject in a car in a parking lot for a couple of hours at shift-change. Ours was armed with a pistol and had fired one shot inside his car, so we established a perimeter and waited him out. My shift was relieved, one by one, by the on-coming shift, and they continued the containment until he got tired and surrendered. Waiting for 15 minutes or so is nothing, and there is no reason that you can’t wait him out.
In any event, after a four-month investigation[6], Chief Art Acevedo fired the four officers, pretty much for the reason that I had a problem with the shooting. The letters informing the officers of their “indefinite suspension”[7] are here,here,here, and here.
Of course, the president of the Houston Police, Joe Gamaldi, had a different opinion. He thinks that Acevedo is throwing the officers under the bus. Of course, Gamaldi have never believed that any officer discipline was appropriate, and who, in the past, has threatened to have his members retaliate against activists.[8] He believes, despite the evidence to the contrary, that “even if you retreat, even if you follow policy, training and the law, you will still lose your job as a Houston police officer.” The problem is that the four officers didn’t retreat, didn’t follow policy, and didn’t follow the law. That’s why they got fired. Duh.
Acevedo isn’t exactly a believer in police accountability,[9] but with the current environment, he is forced to take some type of action. And this is where we need to be, if we can keep the extremists on both sides in their respective corners.
[1]In Texas, MHMR stands for Mental Health – Mental Retardation and is a State agency designed to deal with those with mental problems, particularly those who have limited resources.
[2]Which officers still believed was a knife.
[3]The using officer had dropped it intentionally to avoid tripping other officers, so they could approach Chavez and render aid.
[5]Yes, I know that waiting him out may resulting in him bleeding out and dying anyway, but that becomes his choice at that point. We don’t have to force the issue.
[6]Which could have been done in much less time.
[7]Under the Texas police civil service law, indefinite suspension means termination.
[8]In the case he was upset about, a Houston narcotics detective lied to get a search warrant, and in the no-knock, middle of the night raid, the two occupants of the home were killed by police. The detective is currently facing felony murder charges, but Gamaldi thinks that it is the fault of activists, not bad cops.
[9]For example, he still believes the police had legitimate grounds to enter the house where the two people died, despite the fact that the warrant was based on a lie.
Lex Ferenda 