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846 views15 pagesOfficer Austin Barela: Denver Police Department Order of Discipline
Officer Austin Barela: Denver Police Department Order of Discipline
Uploaded by
Michael_Lee_RobertsCopyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF or read online on Scribd
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February 11, 2020
DEPARTMENTAL ORDER OF DISCIPLINARY ACTION,
‘Case No, 1C2019-0010
This Department owes a duty to both the public and the sworn members of the Denver Police
Department, ofa fair, consistent and efficient disciplinary process. Inherent in that duty is the
timely investigation, review and, where appropriate, imposition of appropriate discipline. Due
to-various circumstances which resulted in numerous delays, the resolution ofthis case was not
timely, and for that we are accountable. In conjunction with the Denver Police Department,
this office conmits (0 ensuring that reasonably established timelines be adltered to in future
‘Austin Barela (P14085)
‘Officer in the Classified Service
Denver Police Department
‘Thisis before the Executive Director of the Department of Safety to approve, disapprove or modify
the Chief of Police's Written Command ordering disciplinary action against Officer Astin Barela
‘The Writen Command determined that Officer Barela violated RR-102.1, Duy to Obey
Departmental Rules and Mayoral Executive Orders, of the Denver Police Department (DPD)
(Operations Manual as it pertains to OMS 105.08, Discharge of Firearms, when he discharged his
firearm at moving or fleeing vehicle. The Written Command imposed & mitigated penalty of 90
‘days (720 hours) suspension for this Conduet Category F violation,
On the moming of March 19, 2018, Mauricio Venzor-Gonzales escaped from the custody of |
Denver Sheriff deputies who had transported him from the Downtown Detention Centr to Denver
Health Medical Center for a scheduled medical appointment. Prior to his escave, Venzor-
Gonzales had been in custody for the attempted first-degree murder of a Denver Police officer
stemming from an incident in November 2017 where he fired shots at an officer parsuing him
during a foot chase. Immediately after the escape, members of the Denver Police Department's
Fugitive Unit began attempting o locate Venzor-Gonzales, Itwas believed that Venzee-Gonzales'
ilftiend, Samantha Adams, had aided in his escape, so the efforts included conducting
Surveillance with the assistance of members of the Aurora Police Department (APD) at her home
in Aurora
‘At approximately 6:20 p.m. that evening, a GMC Acadia, occupied by two men, circled the area
of the Adams home several times. ‘The passenger inthe front seat ofthe vehicle had the hood of DEPARTMENTAL ORDER OF DISCIPLINARY ACTION,
Case No: 1€2019-0010
‘Austin Barela (P14085)
Officer in the Classified Service
Denver Police Department
his sweatshirt pulled up over his head in what was believed to bean atempt to obscure his identity
‘The Fugitive Unit detectives believed thatthe occupants of the vehicle were attempting to locate
and avoid police surveillance. Based on all the circumstances, two different detectives from the
Fugitive Unit believed the passenger was Venzor-Gonzales.
Approximately 25 minutes later, the Acadia parked near the home, directly in front of Adams"
vehicle. Adams left her home, entered her vehicle, and drove away. The Acadia also drove away,
‘which further supported the detectives” belief that Venzor-Gonzales was te front seat passenger.
In his statement written on the date of the event, Sergeant Glenn Mahr of the DPD Fugitive Unit
stated that thay were atthe address in Aurora because they believed Adams sil lived there and
this was also the location where Venzor-Gonzales had been arrested after the original incident in
November 2017. “The purpose of ths operation was to locate and interview [Adams]. He stated
Detective Jay Lopez. received a phone eal from Adams’ grandmother relating that she was likely
at the address. Additionally, electronic surveillance was also showing her to be atthe address.
While conducting surveillance, Fugitive Unit personnel received information about Adams"
involvement, or possible involvement in the escape, specifically that a co-defendant in Venaor-
Gonzales’ case had spoken with Adams that day ata convenience store thre or four blocks from
Denver Health and the time was “very near when the escape occurred.” Sergeant Mahe stated this
information “gave us further reason to believe [Adams] was involved, and that Venzor-Gonzales
‘may possibly be at this location." He stated Detective Lopez related thatthe passenger in the SUV
stared” at him, and “he believed the passenger to possibly be Venzor-Gonzales.” He stated
Detective Lopez also related the party had a hoodie pulled down, and this “is another common
Indicator of someone who is rying o avoid being detected.” Sergeant Mahr stated thatthe weather
was nice, and a hoodie, especially while in a vehicle, “seemed suspicious.” He algo stated the
SSUY “was 50 close to her that they were on the brakes briefly, to keep running into the back of
(Adams ca.”
Sergeant Mah statement continued:
i was clear to the detectives and myself tha the vehicle was connected tothe address and
‘was waiting for (Adams) to leave, Detective Lucio sired that the passenger in the SUV
was the fugitive. When asked further how confident he was that it was our target, he said
hhe was 90% certain, The two vehicles spli-up and since the fugitive was possible in the
SUV. [told detectives to stay with it and not to follow (Adams)
Detective Lucio again aired, after seeing the occupants for another time, that he believed
the passenger tobe the fugitive. T requested assistance from Aurora officers, who were in
the area fo assist. I told them that we needed to stop the vehicle based on the belie that
fn] armed and dangerous fugitive was in that car. Although there was not a “100%”
positive identification, I believed based on the suspicious behavior, including the hoodie,
counter-surveillance measur, andthe fact that they (sic) cccupaats in the vehicle were DEPARTMENTAL ORDER OF DISCIPLINARY ACTION.
‘No: 102018-0010
‘Austin Barela (P'14085)
Officer in the Classified Service
Denver Police Department
‘waiting for, and following [Adams], that there was a high likelihood that the passenger was
the fugitive
Sergeant Mahr stated the decision to follow the vehicle was based on his belie thatthe occupant
was the fugitive and the likelihood of finding him again was “slim”. He stated this belief was
strengthened when they leamed a fellow jail inmate related Venzor-Gonzales would flee to
Mexico. He sated he believed a vehicle pursuit was a viable option due tothe seriousness of the
offense and the risk to public and law enforcement officers ifthe fugitive was not caught without
delay.
Detectives and officers from DPD and APD began to follow the Acadia and as it traveled into
Denver, APD officers attempted to stop the vehicle. Asthe police vehicles approached, the Acadi
fed into the North East Park Hill neighborhood. Several marked DPD patrol vehicles inthe area
sug to join the pursuit afer heating uf it vis poles rai tatisions.
Officer William Bohm (P13070) was driving a marked DPD patrol vehicle with Officer Austin
Barela (P14085) riding inthe passenger seat when they traveled tothe area ofthe pursuit. Earlier
pie to her ineviw with Srgean Engst on
March 21,2018 DEPARTMENTAL On ION,
‘Case No: 1620190010
‘Austin Barela (P14085)
Officer in the Classified Service
Denver Police Department
Approximately ten months after the incident, on January 7, 2019, Officer Mercado was
interviewed by Intemal Affairs Sergeant Randall Steinke. Prior. this interview, the videos from
Officers Barela, Bohm and Mercado's body-worn cameras was publicly released, Officer
‘Mercado had an opportunity to review the video from her body-worn camera footage, as well as
the publicly released video,
‘When asked what her “thought process was during the incident”, Officer Mercado responded:
My thought process, based on the radio transmissions of other officers, Denver police
officers, were (sc) that they were in pursuit of a homicide suspect, who was attempting to
‘escape from custody. My thought process was...when T got there, I got out of the vehicle,
and upon reviewing my body worn camera, I observed thatthe vehicle was stopped. So
‘my thought process was to exit the vehicle and assist Officer Barela, whom I saw on my
Jeft sie, atempe o take this party into custody. AC that time, the vehicle began to move.
heard a source of gunfire from two different sources. I saw a vehicle moving down the
ravine. My thought process was to stop this felon who was now attempting to escape
custody, and also placing my fellow officer in danger.
Sergeant Steinke asked about the 1wo sources of gunfire she heard, and Officer Mercado stated
that she believed “one source was from Officer Barela, and I believe the other source was from the
suspect attempting (o Mee.” She stated she believed it was necessary to discharge her firearm
because she was “defending Officer Barela,” whom she believed was taking fire. When she was
asked why she did not mention the two sources of gunfire during her interview with Sergeant
Engelbert, she responded:
‘The day of my interview, I answered the questions (sic) the best of my ability, and 1
answered them as honestly as possible. I don’t know why T was fixated on the incident of
the vehicle moving and the suspect trying to escape ~ in order to remember why that I
dida’t hear, oF that I did hear gunfire. 1 was just altempting to answer the questions that
‘were being asked of me a honestly and as truthful as possible.
Officers Barela, Bohm and Mercado each stated that they continued to fire their weapons until
they perceived the threat of deadly force and/or the continued flight of a homicide suspect to be
‘over. By the time Officers Barela, Bohm and Mercado stopped firing their weapons, the suspect
vehicle had come to rest with the front of the vehicle atop the large rocks inthe drainage ditch.
‘Numerous additional officers from both the Denver Police Department and the Aurora Police
Department converged on the scene. Once it was determined o be safe, officers approached the
“Thee is no evidence hat Ofer Mercado was decepive a any ie during the criminal or adminiratve
Investigations ahs ease DEPARTMENTAL ONDEN OF DISCIPLINARY ACTION
Case No: 1C2019-0010
‘Austin Barela (P'14085)
Officer in the Classified Service
Denver Police Department
suspect vehicle. It was not until this moment that officers discovered that Venzor-Gonaales was
notin the vehicle
‘The passenger in the front seat ofthe suspect vehicle was removed from the vehicle by officers
and identified as Rafael Landeros, Jr. Landeros was transported to Denver Health Medical Center
where he was treated for a slight abrasion to his lower abdomen sustained during the shooting
Incident. Upon release from the hospital, he was taken into custody on several misdemeanor and
felony warrants
The driver ofthe suspect vehicle was transported to Denver Health Medical Center where he was
pronounced dead. The driver was identified as Steven Lee Nguyen. Nguyen's autopsy revealed
the cause and manner of his death to be multiple gunshot wounds to the head, trunk, ands right
upper extremity. Bullets recovered during his autopsy matched the ammunition of beth Officer
Barela and Bohm, with each officer causing potentially fatal wounds. Toxicological testing was
positive for methamphetamine, amphetamine, and a cannabinoid,
Other officers responded tothe vicinity of Smith Road and North Holly Street where OiTicer Barela
had seen the passenger of the suspect vehicle throw what he blioved to be a gun from the vehicle
{during the pursuit. A black box marked “Honeywell” containing suspected methamy
recovered. Fingerprint analysis ofthe box revealed a latent fingerprint on the outside of the box
belonging to Landeros. A later chemical test confirmed thatthe box contained approximately 5.5
‘grams of methamphetamine.
‘A loaded 9mm Beretta handgun was recovered from inside the suspect vehicle between the front
‘passenger seat and the passenger door, adjacent to where Landeros was seated. Examination of
the weapon determined that the weapon was functional; however, there was no evidence 10
indicated that ether Nguyen or Landeros fired the weapon during the incident. fingerprint
analysis on the Beretta revealed one latent fingerprint belonging to Landeros.
Officer Barela discharged thiny-four rounds from his weapon, Officer Bohm discharged twelve
rounds from his weapon, and Officer Mercado discharged two rounds from her weapon. Nguyen
was struck by two rounds from Officer Bohm’s weapon (recovered from Nguyen's right arm and
left brain) and one round from Officer Barcla's weapon (recovered from Nguyen's right lung).
Steven Nguyen’s cell phone was found in the suspect vehicle. A forensic examination conducted
pursuant toa search warrant revealed atext exchange on March 10, 2018 between Nguyen and the
‘mother of his child, in which she asked Nguyen to leave a location because the police had been
called. He replied, “I'l be waiting tll em to bring the swat..." He then added, “I gct 2 full clips
{or em bitch,” “U don’t even deserve one of my bullets bitch,” “Make sure u tell em im armed n
dangerous...” “I put that on my grandmas grave im ready to die today.”
5 Vonzar Gonzales was apecheded on Augu 24, 2018 in Thermon, Coloadoby sent fromthe Fedral Burcu
of vestigation. DEPARTMENTAL ORDER OF DISCIPLINARY ACTION.
Case No 162019-0010
Austin Barela (P14085)
Ofcarin the Classified Service
Denver Police Department
During his interview with Homicide Detective Daniel Andrews, Landeros admitted to knowing
Venzor-Gonzales, bt he denied he and Nguyen were near Adam's home to aid Venzor-Gonzales
in his escape. He said they were in the area trying to retrieve a cell phone from a woman and that
they were circling the block when they began noticing what they believed to be numerous
‘undercover police officers in the area. Because they both had outstanding warrants and were
driving a stolen car, they decided to leave the area rather than risk getting stopped by the police.
LLanderos admitted he threw an object out ofthe front passenger side window during the pursuit
and stated the object was a box containing methamphetamine. He stated the handgun found in the
front passenger area of the suspect vehicle belonged to Nguyen and Nguyen handed him the gun
afer the pursuit began. He stated Nguyen “was driving with one hand on the gua and the other
(one on the steering wheel...” He continued, “when it got serious, like was serious, he's like
here...Fucking hold onto this...and I grabbed it and I focking stuck it onthe side ofthe door right,
away." He stated Nguyen “had like two magazines and stuff lke that
Landeros denied fring the gun or pointing it at anyone, stating that once the suspect vehicle
crashed by the drainage ditch, he was going to run, but he could 3ot get the door open. He stated.
[Nguyen tied to climb across him to get out the passenger side deor, but he could not get the door
‘open either. When Nguyen went back tothe driver's side, the sts started. Landeras got down
‘ear the floor board and continued to move around the front passenger area while the shooting.
continued, At some point before the shooting ended, Landeros heard Nguyen say, "Foo, they
fucking shot me.”
RR.1024 Duty to Obey Departmental Rules and Mayoral Executive Orders
Officers shall obey all Departmental rules, duties. procedures, instructions, and
‘orders; the provisions of the Operations Manual; and Mayoral Executive Orders.
As it pertains to
OMS 105.05 Discharge of Firearms*
(3) When all reasonable alternatives appear impractical, a law enforcement officer
‘ay resort tothe lawful use of rearms under the following conditions when he/she:
reasonably believes that itis necessary.
Tne ied subsection of OMS 105.0, Use of Force Poly, sit existed in 2018 and specifically om March 19,
2018, the dat of he events underlying his investigation.
-10- DEPARTMENTAL ORDER OF DISCIPLINARY ACTION,
Case No: 1€2019-0010
‘Austin Barela (P14085)
Officer in the Classified Service
Denver Police Department
‘4. Todefend hinvnerself or a third person from what he/she reasonably believes
tobe the use or imminent use of deadly physical force (C.R.S.18+1-707); oF
b. To affect an arrest, or to prevent the escape from custody of a person whom
he/she reasonably believes:
1. Has commited or attempted to commit a felony involving the use or
threatened use ofa deadly weapon; or
2. Isattempting to escape by the use of a deadly weapon; or
3. Otherwise indicates, except through a motor vehicle violation that he is
likely 10 endanger human life orto inflict serious bodily inary to
another unless apprehended without delay. (CRS. 181-707)
4. The following definitions shall apply to all of OMS 105.O4si’ (3)
and.
a, REASONABLE BELIEF: When facts or circumstances the
officer reasonably believes, knows, or should know, are such as
to cause an ordinary and prudent police officer to actor think in
similar way under similar circumstances.
(5) Moving vehicles
a, Firearms shall not be discharged at a moving or flesing vehicle unless deadly
force is being used against the police officer or another person present by means
other than the moving vehicle,
From the statements he provided, the facts or circumstances Officer Barela reasonably believed
and/or perceived before discharging his weapon include:
‘+ abomicide suspect had escaped from Denver Health Medical Center;
‘officers with the Fugitive Unit had 100% positively identified the passenger as the
homicide suspect;
‘© the suspect vehicle had driven directly atthe patrol vehicle driven by Officer Bohm in
‘which Officer Barela was the passenger,
‘+ pursuit ofthe leeing suspect vehicle and a PIT maneuver had been authorized;
"This cation should ead “OMS 108.053). and." OMS 105.043) is no sbastins“n." oh" Farthermore,
‘he subject of OMS 105.046) the ranking fie s esponsibility fr rime sens protection, Those relevant
Scetions were amended by OMS 108.00 Fave Related Pais), efecve January 2019,
ue DEPARTMENTAL ORDER OF DISCIPLINARY ACTION
(Case No: 1C2018-0010
Austin Barela (P14085)
Officer in the Classified Service
Denver Police Department
the passenger threw a firearm out of the passenger windew ofthe suspect vehicle during
the pursuit
‘the driver ofthe vehicle repeatedly ran red lights and swerved out ofits assigned lane while
traveling ata high rat of speed down Smith Road;
‘after the suspect vehicle and the patrol vehicle stopped, both individuals in the suspect
vehicle were making “furtive movements toward the central console, reaching aroun
‘+ neither the passenger or driver complied with the officers’ commands to show their hands;
‘+ the suspect vehicle was attempting to accelerate as evidenced by the sound and smell of
the ttes onthe rocks; and
‘+ the suspect vehicle was moving down into the drainage ditch.
Officer Barela stated that he saw the door “move slightly ajar” and that he began fring toward the
passenger side of the vehicle and continued to fire until he “perceived that the threat stopped."
(Officer Bohm said he “feared (the passenger] was going to get out with a weapon and either Kill
‘me or kill [Officer] Bohm.” During this event, Officer Barela fired his weapon in separate
sequences. During the first sequence, Officer Barela emptied his magazine, “17, 18 rounds.” He
then reloaded his weapon, and said he started shooting again when the suspect vehicle began to
move forward. After emptying that magazine, he again reloaded his weapon and then he stopped
firing because “there was zero movement from the passenger.” Officer Barela discharged a total
‘of thity-four rounds from his weapon. Officer Barela recounted that “once the passenger stopped
moving completely” he stopped firing and “tried 10 move to use better cover behind the back” of |
the patrol vehicle
Officer Barela violated this departmental rule when he discharged his firearm at a moving or
fleeing vehicle. Officer Barela's belie thatthe circumstances athe time he and Officer Bohm
stopped the pursuit of the suspect vehicle warranted the use of decly force was neither reasonable
nor necessary,
Office Barela was confronted with no imminent use of deadly force, nor was it reasonable fr bim
{believe that either he or Officer Bohm were confronted with theimminent use of deadly physical
force. Officer Barela got out of his patrol vehicle and moved toward the suspect vehicle with no
cover. The two suspects in the vehicle were moving inside the vehicle which was facing away
{rom the officers’ position and the suspects filed to comply with he officers’ commands to show
their hands. At the time Officer Barela chose to first fire his weapon, he perceived that the
ppassenger-side door moved “slightly ajar” and he suggested that movement justified his decision.
{o fire because that he “feared [the passenger] was going to get cut with a weapon and either kill
[himJor kill [Oficer] Bohm.” This enunciated fear does not meet the standard of a reasonable
belief. An ordinary and prudent police officer facing similar circumstances would not actor think.
ina similar way. Officer Kay arrived on scene after Officers Bohm and Baela and just prior to
Officer Mereado's arival. Officer Price arived on scene very shorly after Officer Mercado,
Officer Kay and Officer Price both stated tht they were unable (>see what was causing either
212 DEPARTMENTAL ORDER OF DISCIPLINARY ACTION
Case No: 1C2019-0010
‘Austin Barela (P14085)
Officer in the Classified Service
Denver Police Department
‘one, or both, ofthe officers to fire. Both Officers Kay and Price reasonably chose to take cover
and made independent decisions to not fre. Both Officers Kay and Price arrived atthe scene and
assessed the situation and those assessments did not give them a reasonable belief that it was,
necessary (0 discharge their firearms. Though Officers Kay and Price did not see the suspects
‘moving within the vehicle, nor did they see the perceived movement in the passenger side doar,
they did have the other information concerning the suspects, and based on that information, they
teach assessed the scene upon arrival and chose to take cover. By contrast, Officer Barela exited
his vehicle and without benefit of any cover, moved towards the vehicle, placing himself in a
vulnerable position that may have contributed tothe fear that factored in his decision to fire his
‘weapon.
Officer Barela's decision to discharge his firearm is similarly not supported by OMS 105.05(3)b
Regardless of who the passenger was inthe suspect vehicle, the passenger was not Aesing from
the immediate commission or attempied commission of a felony involving the use or threatened
use ofa weapon nor was he attempting to escape by use ofa deadly weapon. The suspect vehicle
was stopped, pointed downward into a drainage ditch filled with larg roeks. Is not reasonable
{© conclude thatthe individuals inthe car wer “Iikely to endanger human life or tific serious
bodily injury to another unless apprehended without delay.” "An ordinary and prodent police
officer would not have chosen to discharge a firearm under the totality ofthe circumstances
presented to Officer Barca
Finally, Officer Barela's decision to fre his weapon is not supported by OMS 105.05 (5). Simply
stated, there was no deadly force being used against him, other offices or any other person when
he fired. It is specifically prohibited to fire at a moving or fleeing vehicle unless deadly force is
being used against an officer or other person. Officer Barela stated he started shooting again when
the suspect Vehicle began to move forward. Officer Barela's belie thatthe vehicle which was
slowly moving forward in a ditch filled with large rocks was a “continued threat” was not
reasonable,
[None of the necessary predicates to the discharge of a firearm were present when Officer Barela,
the firs officer to shoot, made the decision to discharge his firearm, It was neither reasonable nor
Consistent with the poly, the 10d Cc Court of Appeals as fund {T]he ace wo basi suaions tat would
Jasly sn ofce’s bet tha cing suapet poss 3 heat of eis physic! harm (1) where the spect se
place te ofcer ins dangerous, if eatning station: or (2) wher the aspect ting from he comission
‘fan inhrealy violent ere. (Ryder City of Topeka B14 F.2d 1412 (00h C1987). Using fame work, i
is appropri (analyze whether the suspect that Officer Baca tlived he was shooting at was Deeg fom th
Immediate commision on inherently vnen crime. Fuster, the Sepreme Cour and he 10th Creat hve
frovided ational punance by recopnizing tha aw enforceen’ fier may be ound have sted reasonably
Iroxng deadly fre even ithe fiers ble mistaken so the fc jying thew of ely forse See
Saucier. et 533 US. 194, 205-06 2001); Thomas v. Duras 67 F.3d 635/668-6610 C2010)
However, the mistake must be reasonable unde the oly ofthe cicumstanecs conto he ocr. Thomas,
(07 F.3d 3 66,
<1 DEPARTMENTAL ORDER OF DISCIPLINARY ACTIO!
Case No: 1C2018-0010
Austin Barela (P'14085)
Officer in the Classified Service
Denver Police Department
necessary for Officer Barela to fie his weapon. Officer Barcla's discharge of his firearm was @
violation of RR-102.1, Duty to Obey Departmental Rules and Viayoral Executive Orders as it
Pertains 0 OMS 105.05, Discharge of Firearms.
‘A violation of RR 102.1 appears in Conduct Categories A through F of the disciplinary matrix. By
Aischarging his weapon at a moving or fleeing vehicle as described above when there was not
deally force being used against him, other officers, or euber persons, Officer Barela's conduct
appropriately falls under Category F because it “Toreseeably resultfed} in death or serious bodily,
injury to another person.”
Pursuant to the distiplinary matrix, for a Category F, discipline level eight (8) violation, the
‘mitigated penalty is ninety (90) days (720 hours) suspension, and the presumptive penalty is
‘Though this was a deadly physical force incident, resulting in the death of Steven Nguyen, it is
stil appropriate to consider the significant mitigating circumstances in this ease. Per the DPD
Discipline Handbook, mitigating circumstances may include “(minimal or lack of prior
