Hat tip John Lott: 'Prosecutors drop charge against man who had shootout with cop', Statesman.com

Saturday, March 28, 2009 Travis County prosecutors on Friday dismissed the case against David Lozano, who lost his leg in a late-night shootout with an Austin police officer at Lozano's Northeast Austin house in 2007.

"We believe that Mr. Lozano maintained a reasonable belief that on that day and time he was defending himself, his wife and his property," Travis County Assistant District Attorney Steven Brand said.

The dismissal came after a series of expert witnesses for the state and defense cast doubt on whether officer Roger Boudreau told the truth about the confrontation, according to lawyers in the case.

"Had it not been a police officer, this case would have been dismissed a long time ago," said Lozano's lawyer, Ryan Deck. "A police officer changed everything."

Lozano, 48, spent 13 months in jail before he was released on bail last year.

Brand said the case was complicated and required many layers of investigation to reach the truth. He said he does not think that Boudreau intentionally gave false statements about the events.

Internal affairs Sgt. Joe Robles said department investigations determined that Boudreau, who remains on the force, did nothing wrong that night.

Boudreau received a commendation for his actions that night. Robles said he did not know enough about the recent events in the case to comment further.

In a statement read by a spokeswoman, Police Chief Art Acevedo said the department "respects the district attorney's decision and supports officer Boudreau and his actions on the evening in question."

Acevedo said he would not comment further, citing a lawsuit that Lozano filed last week.

Lozano and his wife, Rosemary, were having marital problems leading up to the incident on March 11, 2007, according to Deck and a police affidavit. That night, a man with whom Rosemary Lozano had had an affair threatened David Lozano in a phone conversation, Deck said.

Then that man, Miguel Salazar, called police and reported a domestic disturbance at the Lozano home, Deck said.

Next, according to both Boudreau's account as detailed in the police affidavit and Lozano's account as told by Deck, Boudreau knocked on the door, heard someone chamber a round into a gun through the door and moved off the porch.

Lozano thought it was Salazar knocking and intentionally made the sound with the gun to scare him, Deck said.

After Lozano looked through the peephole and saw nobody, he opened the door, Deck said.

Boudreau never identified himself as a police officer during the incident, according to Deck and the affidavit.

What happened after the door opened was in dispute. Lozano said that Boudreau fired two shots in front of the house; Boudreau said Lozano fired first, according to the police affidavit. "He never mentions he was a police officer," Deck said. "He was in complete black (clothing) in the dark of night. David thought it was Miguel out there."

Boudreau ran around the side of the house, and Lozano followed, according to the affidavit.

They faced off again and, according to the affidavit, Boudreau told investigators that Lozano fired first again.

Three months after the confrontation, a grand jury indicted Lozano on charges of attempted capital murder and aggravated assault by threat.

Boudreau's patrol car video camera was on during the incident and he was wearing a lapel microphone, which recorded the audio.

The men had different caliber weapons that could be distinguished from each other on the recording, Deck said. Last year, an expert witness for the defense analyzed the audio and the crime scene and determined that Boudreau fired the first three shots in the incident.

Prosecutors dismissed the initial charges and acknowledged inconsistencies in the evidence and in Boudreau's account.

Brand recalled Friday that prosecutors at the time were convinced that Boudreau had fired the first two shots, at the front door, but did not believe that Boudreau fired the third shot, on the side of the house.

In July 2008, a second grand jury indicted Lozano on a charge of aggravated assault with a deadly weapon, a second-degree felony punishable by up to 20 years in prison.

Deck said that further analysis by his expert witness found that Boudreau fired the first five shots.

In recent weeks, he said, Brand told him that state experts had independently determined that Boudreau fired at least the first three shots, prompting prosecutors to abandon the case.

Deck said he doesn't think it was an innocent mistake by Boudreau, but that Boudreau intentionally lied about who fired the first shots. "You know when you get into a fistfight? You don't know who threw the third punch ... the fifth, the ninth," Deck said. "But if you threw the first five punches or the first three punches, how do you not remember that?"

Last year, Boudreau received the Medal of Valor, the department's highest honor, for displaying exceptional bravery in the incident.

Last week, Lozano filed a federal lawsuit against the City of Austin, Boudreau and Boudreau's supervisor, Sgt. Stephen Deaton, claiming, among other things, that he was a victim of excessive force and that his civil rights were violated.

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