Police Chief Joseph Chacon suspended an officer indefinitely for helping a man evade arrest (Photo by John Anderson)
Austin Police Chief Joseph Chacon announced in a disciplinary memo last week that he had suspended the APD officer indefinitely Andrew Upton for helping the suspect in an alleged domestic violence assault evade arrest.
In the memo, Upton admits to writing a note to the suspect of the alleged assault — intentionally out of sight of his body-worn camera — telling him that if he entered his residence and closed the door, he could not be stopped. During the internal affairs investigation that preceded Chacon’s decision to fire Upton, the officer admitted to investigators that he knew what he was doing at the time was wrong, but he did it. as a “shortcut” to what he considered the fairest outcome. “I was concerned [Mr. NL] would be arrested because of politics,” Upton told IA. [an] arrest on his criminal record.”
But Upton’s actions not only violated Austin Police Department policy, Chacon wrote in the memo, but they could also be criminal. “A preponderance of the evidence” indicates that Upton obstructed the arrest or prosecution of Mr. NL – a Class A offense under state law. “Upton admitted to committing each element of this offense as he intended to obstruct the arrest of Mr. NL, assisted Mr. NL to avoid arrest, and warned Mr. NL of his impending arrest” , says the memo. According to Chacon’s memo, the incident was referred to the Public Integrity Unit to Travis County District Attorney’s Office for possible prosecution.
The incident that resulted in Upton’s indefinite suspension – aka firing – happened in the early hours of August 11, 2021, but details of the officer’s conduct have just come to light in Chacon’s 22-page disciplinary note, published on March 18 by the Police control office. Officers responded to a 911 “Trespass Urgent” call made by a man, identified as Mr. NL in the memo, who claimed his girlfriend, identified as Ms. VS, was physical with him and refused to leave his residence.
As Upton and two other officers, whose names are not mentioned in the memo, attended the scene, the call was escalated to “Disturbance – Hot Shot”, meaning someone one faces an imminent threat to their life or safety. When they arrived, they separated Mr. NL and Mrs. VS to take statements from each. The two said they were involved in a physical altercation, although each offered different versions of events – a typical challenge officers face in domestic violence calls.
Mr. NL told Upton that his girlfriend hit him, but he felt no pain; Ms VS, however, told the other officers that her boyfriend had thrown her against a wall, which injured her finger. Later, while still at the scene, Mr. NL told Upton that the dispute was about Ms. VS refusing his attempts to have sex with her. Mr. NL also told Upton that when he called 911, Ms. VS struck him with an oblique blow which did not hurt him. He responded by pushing her away, potentially injuring her finger in the process.
At this point, under Texas law, sufficient probable cause had been established to require an arrest. Mr. NL and Ms. VS agreed that one person, Ms. VS, had been assaulted and injured – opening Mr. NL to a potential charge of assault with injury, domestic violence. But the three officers who responded weren’t sure, so they decided to consult their sergeant, Thuy Bayer, for advice.
“Thank goodness the victim felt comfortable sharing this information with the victim services counsellor. Otherwise, this incident would have gone unnoticed. –Liz Donegan
As one of the anonymous agents consulted with Bayer, who has more than two decades of experience at the ODA, Upton returned to Mr. NL, who told him he feared arrest. Upton, who was hired by APD in 2013, responded by surreptitiously writing the note to Mr. NL. When the anonymous agent returned with Bayer’s determination that they must arrest Mr. NL, Upton tore the note to Mr. NL from his notebook and discarded it. When the officers knocked on Mr. NL’s door to make the arrest, Mr. NL did not answer. They were unable to make an arrest, so the officers and Ms. VS eventually left the scene.
Upton, who is appealing Chacon’s dismissal decision, did not tell anyone about the note that night; in fact, if it weren’t for a follow-up call made by a counselor within the ODA Victim Services Division, Upton’s conduct may never have been revealed. During the follow-up that VSD regularly conducts with alleged victims of violent crime, Ms VS said, “That’s why I don’t like the police or why I don’t trust the police,” the counselor recalled. This alarmed the counselor, prompting her to ask Ms. VS why she said that.
Ms. VS said that after the police left, Mr. NL called Ms. VS to tell her about Upton’s actions, which helped him evade arrest. “He feels like he got away with hurting me, because of that,” the counselor recalled, remembering Ms VS telling him. The adviser concluded that Mr. NL may have spoken to Ms. VS about Upton’s actions in order to dissuade her from contacting the police in the future. “I think he used that against her to make her feel like you were reporting [alleged abuse] nothing is going to happen to me,” the adviser said during her interview with the AI.
Based on Chacon’s memo, he, Bayer and the victim services counsel were all disturbed by Upton’s actions because they could have put Ms. VS at additional risk and because “at the As a result of this experience, Ms. VS may be demoralized or discouraged from reporting future crimes to the police,” the memo reads.
Liz Donegana retired ODA sergeant Sex Crimes Unit and current co-chair of Austin/Travis County Sexual Assault Response and Resource Team, said what troubled her most was how Upton single-handedly moved the investigation in a different direction. “He knew the law well enough to exploit it for the benefit of a suspected domestic abuser,” Donegan told the the Chronicle. “He actively assisted the suspect, which is the complete antithesis of what law enforcement should do with victims.”
The incident is particularly troubling given the shattered trust between sexual assault survivors and the ODA after years of scandal over the department’s response to sex crimes. Donegan said Upton’s actions likely don’t represent APD’s broader attitude towards sex crimes, with Chacon vowing to improve as a leader, but it reflects also the work that APD still has to do.
If there’s one silver lining this incident reveals, it’s the important role the ODA Victim Services Division has to play in this ongoing work. “Thank goodness the victim felt comfortable sharing this information with the victim services counselor,” Donegan told us. “Otherwise this incident would have gone unnoticed.”