Kleinert was one of 54 officers to be charged in connection with a fatal on-duty shooting from 2005 to 2014, according to a Washington Post analysis published earlier this year. So far in 2015, there have been more than 800 fatal on-duty police shootings that have resulted in charges for just five officers, according to a Post database.
Jackson, 32, was shot to death on July 26, 2013, after he visited his local bank, which was on lockdown after a robbery attempt earlier in the day.
Austin Police have said that video surveillance shows Jackson — who was not believed to have been involved in the robbery — attempting to enter the bank, finding it locked, and speaking briefly to a bank manager (who later told police that Jackson gave her a fake name). Jackson left, and then returned to the bank again later in the day. On his second visit Jackson was confronted by Kleinert, a detective who was investigating the robbery, after the bank manager told him about their earlier interaction. After a few minutes of being questioned by Kleinert, Jackson ran.
Kleinert gave chase, commandeering the vehicle of a woman driving in the area.
“(Kleinert) was breathless and agitated and yelled, ‘Go go go’ and ‘follow him’ multiple times,” the woman, Regina Bethune, told KVUE, a local television station, in February. “He seemed very out of control and highly agitated. I was uncertain if he was really a police officer or not. I realize that either way I needed to remain calm and help him try to calm down. He did not identify himself any further once in the car. He did not tell me his name or offer any explanation as to what was going on.”
Kleinert caught up to Jackson underneath a bridge and drew his weapon. The officer said he attempted to strike Jackson several times while his gun was in-hand, and that during the struggle the weapon accidentally discharged, putting a bullet in the back of Jackson’s neck.
Jackson’s family, who received a $1.25 million settlement from the City of Austin, has insisted the shooting was intentional.
“(Kleinert) never claims that Larry attacked him,” said Adam Loewy, an attorney for Jackson’s family. “The forensic evidence shows that Larry was on his hands and knees and the gun was at the back of his neck. Execution style.”
Kleinert was indicted on manslaughter charges, with a grand jury concluding that Kleinert behaved “recklessly” by attempting to punch Jackson while holding a loaded firearm.”
But Kleinert’s legal team argued that the shooting was accidental and that, because he was a member of an FBI task force that he was entitled to ‘Supremacy Clause immunity’ — a defense that argues that because the Constitution is the supreme law of the land, a federal officer who at the time reasonably believes his actions were necessary to the performance of his federal duties is immune from state criminal prosecution.
Judge Yeakel agreed, ruling that Kleinert was acting in his federal capacity while investigating the bank robbery and therefore has federal immunity.
The federal immunity defense dates back to an 1889 shooting, in which a U.S. marshal assigned to protect Supreme Court Justice Stephen J. Field shot and killed a man who had attacked the judge. The Supreme Court ruled that because the officer was acting in his capacity as a federal agent he could not be tried or found guilty of murder.
Kleinert’s attorney argued that while he was an Austin detective, he was also deputized as an FBI agent, and therefore immune from prosecution.
“The court concludes that from the time Kleinert began his conversations with Jackson until the time Jackson died, Kleinert was acting in his capacity as a federal officer,” Yeakel wrote. “At all times, Kleinert was attempting to detain and arrest Jackson for committing federal offenses in Kleinert’s presence — actions that Kleinert was authorized by federal law to perform.”
Travis County District Attorney Rosemary Lehmberg said Thursday night that she has yet to determine if she will appeal the ruling.
“I am totally dismayed by today’s federal court action,” Lehmberg said in a statement. “With this federal court action dismissing the case, it appears that an Austin Police Department officer can be assigned to a federal task force and avoide prosecution in state court.”
In a statement, Kleinert’s attorneys Randy Leavitt and Eric Nichols, praised the decision to dismiss the charges and said that the fact that the charges were issued amounted to inappropriate micromanaging of a police officer.
“The death of Larry Jackson was an accident that occurred because Mr. Jackson actively resisted Mr. Kleinert’s efforts to arrest Mr. Jackson for a federal crime. This accidental death would not have happened if Mr. Jackson did not commit a crime, and it would not have happened if Mr. Jackson had not resisted efforts by a federal officer to arrest him for that crime,” they wrote. “It is our hope that the District Attorney will accept the court’s ruling. In the event Ms. Lehmberg decides to appeal, we will vigorously defend the federal court’s correct decision.”
The ruling shocked Jackson’s family and attorneys.
“This man just got away with murder,” said Loewy. “It is a historic moment for all of the wrong reasons. It is just unbelievable that this went down this way.”
This post has been updated
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