AUSTIN, Texas — In the early morning hours of Jan. 5, off-duty Austin police officer Gabriel Gutierrez faced a split-second decision when he claimed 27-year-old Alex Gonzales Jr. pointed a gun at him in a moment of road rage.
In the dark of night, with a loaded firearm but without the full armament of police equipment, the two-year officer could have retreated, described the car and given its license plate to 911 dispatchers before allowing uniformed officers to take charge. Or he could have forsaken his role as a private citizen to play the part of an on-duty police officer, taking more aggressive steps to try to stop Gonzales as the situation rapidly escalated in the ensuing moments.
By now, Austin knows the tragic outcome: Gutierrez shot and injured Gonzales, who had his wife and baby in the car, then called for more officers to swarm the scene. As police footage shows, arriving officer Luis Serrato shot and killed Gonzales as he reached into the back seat, where his son was strapped into a car seat. The Gonzales family believes he was frantically trying to check on the infant.
Austin Police Department officials said investigators found the gun that Gutierrez said was pointed at him, but officials haven’t said whether they believe Gonzales had the gun on him when the fatal shots were fired. His autopsy report has not been made public.
“There is a series of irresponsible and reckless behavior that created the situation,” said attorney Scott Hendler, who represents the Gonzales family in a lawsuit against the city.
As multiple investigations continue, much of the focus among detectives rests on an aspect of policing that often receives little examination: the peril of law enforcement officers taking official action while off duty.
Although it might seem heroic for a plainclothes, off-the-clock officer to chase a bank robber or to begin directing traffic after an accident, experts say off-duty officers generally are discouraged from getting involved in situations, no matter how benign. Doing so can cause them to put themselves in danger, create confusion among on-duty officers and spark legal questions about whether their employers might be held liable if the encounter causes injury or death.
Most policy makers and experts agree on one of two situations, however, when doing so is justified: when off-duty intervention could save a life or stop someone from getting badly hurt.
“Yes, you are a cop 24/7, but don’t act that way,” said Howard Williams, a former Austin police commander and former San Marcos police chief who now is a lecturer at Texas State University. “That is one of the things they teach in cadet class. When you are off duty, be off duty unless there is a true emergency.”
The investigations into Gonzales’ death by the Police Department’s special investigations unit and internal affairs division and the Travis County district attorney’s civil rights division will look into whether both officers were justified in using lethal force under Texas law and the department’s administrative policy. There is no timeline for when those investigations will be complete.
The analysis of whether Gutierrez legally used lethal force to defend himself will not change because he was an off-duty officer. Texas law is the same for both officers and civilians, allowing them to use lethal force if they believe it is “immediately necessary,” said Geary Reamey, a professor at St. Mary’s University Law School in San Antonio.
Reamey said shooting a person pointing a gun at a victim might be justified, unless there is evidence that the person acting in self-defense provoked the other person’s actions.
But experts say Gutierrez’s earliest decisions to engage while off duty might draw the harshest scrutiny, leading to possible administrative action against him that could include termination. His attorney, David Frank, declined to comment on the specifics of the incident.
“There is an increase in gun violence, and police do dangerous work,” Frank said. “Right now, we are going through a period where police are presumed to be acting without thinking, and that is not the case for every police officer.”
Departments across the nation generally offer the same guidance to officers about getting involved in an off-duty incident.
According to Austin Police Department policy, “Reporting to the appropriate law enforcement and safe monitoring of suspected criminal activity is generally favored” over taking off-duty action. The policy strongly discourages any law enforcement action in response to minor crimes but adds that officers should take “reasonable action” to minimize the threat of serious injury or death.
Because of such prohibitions, it is rare for officers nationally to use lethal force in an off-duty encounter, according to experts, although no group or organization tracks such data.
The last time an Austin police officer received serious discipline for doing so was in 2016. In that case, officer Jonathan LaBorde chased a man who ran through his church after committing a theft and threatening a store clerk with a knife.
While many of his colleagues praised him, police officials initially suspended LaBorde for 10 days but later reduced that discipline to a written reprimand. Officials said at the time that they disciplined LaBorde for not more quickly turning the situation over to on-duty officers upon their arrival — not simply for becoming involved.
Nationally, the April shooting deaths of two men who were reportedly trying to break into cars in suburban Washington by an off-duty Pentagon police officer led to murder charges against him. According to published reports, the officer fired on three men who were driving away from the scene. The Pentagon police acting director said in a statement that the department would conduct a “stand down with officers to ensure they have a full understanding of their off-duty responsibilities.”
And in late May, an off-duty police officer in Copperas Cove, 70 miles northwest of Austin, made local headlines after he was charged with shooting and wounding a woman after a road rage incident. That officer, who resigned, faces charges that include aggravated assault and causing serious bodily injury. The Copperas Cove police chief said in a statement that the department did not support his decision to use deadly force.
Tammy Bracewell, a criminal justice professor at Texas A&M University-Central Texas, said department policies, such as Austin’s, that discourage police action while off duty are appropriate for many reasons. She said one reason is a lack of equipment, including gear that can help keep officers safe, such as handcuffs and radios to call for backup.
“In most situations — not all — the best route for an officer off duty is to take the role of a good witness and call the situation in to an on-duty unit,” she said. “Officers know what makes a good witness.”
Bracewell pointed out that there is no Texas law requiring officers to intervene while off duty, although state law allows them to act as peace officers even if they are not on the clock.
Williams said off-duty officers might not be effective because possible suspects or bystanders might not believe they are in law enforcement if they aren’t wearing a badge or uniform. That lack of trust can amplify a situation instead of de-escalating it, he said.
In rare circumstances, however, off-the-clock officers might have little or no choice but to become involved “if there is a bona fide emergency going on,” he said. “When the time comes and you have to step in, you do step in, and you kind of take your chances.”
Legal issues can emerge, as well, after an off-duty officer takes action. That was the case in 2019 when the issue of whether a Navasota police officer helping provide security at an apartment building could be named as a defendant in a suit by the family of a man he shot during a confrontation. The Texas Supreme Court ruled that he could not be sued as an employee of the apartment company and that he had immunity as a police officer.
In Gonzales’ death, the family’s lawyer said Gutierrez set in motion a chain of events that should have been handled differently. Gutierrez’s contention that Gonzales pointed a gun at him is in dispute, and the officer acted recklessly by shooting into a car, Hendler said. Gonzales’ wife, who officials say played no role in the incident, also was shot and is recovering from her wounds. Her baby was unharmed.
Hendler said that had Gutierrez simply reported the incident, on-duty officers could have conducted a traffic stop and more safely questioned Gonzales about the encounter.
“That is what should have happened, and it didn’t,” he said.
