On a surveillance tape of the confrontation, Devyn Swanier, gun in hand, retrieves a second weapon from the trunk of his car.

By Matt Davis, The Lens staff writer |

Rookie New Orleans Police Officer Devyn Swanier saw fit to resign from the department, ending his brief career as a cop. But should he also have been prosecuted for pulling two guns on an unarmed civilian during an off-duty altercation at a gas station?

That’s the question lingering among parties to the dispute and members of the law enforcement community. The Lens has collected the evidence, including a surveillance tape of the incident and transcripts from the police department’s inquest, so readers can come to their own conclusions.

The incident unfolded in early April at a Chevron gas station on Crowder Boulevard near Interstate 10, in eastern New Orleans. Records compiled by the NOPD’s Public Integrity Bureau during its review of the case show that the officer’s three-year-old goddaughter was present throughout the incident — something not disclosed by the New Orleans Police Department in a public statement announcing Swanier’s resignation following the incident.

Swanier had been arrested and booked with aggravated assault but in June District Attorney Leon Cannizzaro announced that his department had declined to prosecute the case.

Admitting that the officer exercised poor judgment, a spokesman for Cannizzaro said that after reviewing the law and the evidence, his office could not prove beyond a reasonable doubt that the “putative victim was placed in reasonable apprehension of receiving a battery.”

“We looked at all of the available charges but we don’t believe that there was an appropriate charge,” Bowman said. “He [Swanier] was in possession of a firearm that he (had) a legal right to possess.”

The putative victim, 18-year-old Michael Martin, told Public Integrity Bureau detectives he felt threatened when Swanier drew his personal Glock 27 and said: “I’ll make it to the point where nobody can’t walk around here.”

Swanier, who was out of uniform but wearing sweat pants emblazoned with the NOPD logo, pulled the gun from his car after Martin’s female friend bumped into Swanier’s goddaughter at the gas station door.

“I was scared, for the simple fact that I didn’t know he was a police officer,” Martin told detectives. “I was threatened because of the simple fact that he was swinging his weapon, and you know, I’ve been around a lot of gunfire and that made me intimidated. It made me want to run, but I felt like there wasn’t nowhere to run.”

Later, Martin told officers that he felt less threatened once he saw the NOPD logo on Swanier’s pants.

“I didn’t feel no, no immediate harm after I seen the NOPD on his pants,” Swanier said. “I’m like, ‘you’re an officer. You going to shoot me? I don’t have no weapon.”

“I felt threatened, but I didn’t feel as threatened,” Martin said.

Still, Martin said that Swanier made it clear his professional affiliation had little to do with their dispute.

“I was like, ‘you police’,” Martin said. “He said ‘that don’t mean nothing.’”

Listen to excerpts of Martin’s statement by clicking here.

Civil rights attorney Mary Howell said there are many different laws on the books that could be applied by the District Attorney’s office in a case like this.

“We have rarely ever suffered from the lack of applicable statutes,” Howell said. “We have tons of laws on the books. The question in this community has always been enforcement. It is extremely rare that it is not possible to find a municipal or state ordinance that someone has violated. You’ve even got malfeasance charges. The problem is there seems to be two different sets of laws, one for police officers, one for citizens.”

Howell acknowledged that not every incident warrants prosecution, even when the offense is a serious one like aggravated assault. But Howell said that the District Attorney’s office historically has failed to deal with officers engaging in criminal wrongdoing.

“It’s almost impossible to get the District Attorney’s Office to prosecute officers for behavior with citizens at their mercy,” Howell said. “This undermines public trust.”

Howell’s view is countered by Rafael Goyeneche, a former prosecutor now head of the watchdog Metropolitan Crime Commission. The District Attorney has absolute discretion in prosecuting cops, Goyeneche said, adding that standards of proof sometimes make it difficult to follow through on instances of bad behavior that might appear shocking to citizens.

“I think the officer was probably guilty of aggravated stupidity,” Goyeneche said. “But again, under the law, the DA has discretion as to whom to charge. Could you possibly come up with some other charges? Possibly. But again, you’re dealing with a situation where it’s not probable cause. The standard to arrest them is probable cause. The standard to convict is proof beyond a reasonable doubt. And if the D.A. came to the conclusion that he couldn’t meet that standard, well, that’s the conclusion that he came to.”

Surveillance footage shows Swanier moving his car to block Martin’s Ford Taurus from exiting the gas station. Glock 27 in hand, Swanier then unlocks his trunk to retrieve the Glock 40, his service weapon, and walks back to face off with Martin.

In the video, Swanier keeps both weapons pointed at the ground, not at Martin, before getting back into the vehicle and driving off.

The video reveals that Martin taunted Swanier, seeking to engage him in a verbal altercation. But he never produces a weapon:

Interviewed by Public Integrity Bureau officers hours after the incident, Swanier claimed that Martin had threatened him, saying: “You don’t know who I am, and what I can do.”

Martin told The Lens that he began shouting at Swanier after realizing that he was a police officer. He denied ever threatening Swanier.

“I was just furious that a police officer would pull a gun on anyone at a gas station,” Martin said. “And I wanted to let him know it.”

The surveillance tape has no sound so it is impossible to confirm either man’s version of the verbal exchange.

The PIB officers chided Swanier for pulling a second gun when he could have just driven away or kept an eye on Martin until he left, in a transcript of the interrogation.

“You were in the safety of your vehicle and you had a weapon in your hand already,” Sgt. Kevin Stamp, a PIB officer, said. “You didn’t see this guy with a weapon in his hand, his vehicle wasn’t blocking you from leaving. I don’t understand why you would exit your vehicle and place yourself in harm’s way.”

Swanier’s response drew audible exasperation from his interrogators, one of whom mutters the word “Jesus” under his breath.

“I didn’t see a weapon in his hand,” Swanier said. “But I didn’t not see a weapon in his hand.”

Lt. Errol Foy went further, drawing attention to Swanier’s 90-pound, five-inch height advantage over Martin.

“Somebody mouthing off, talking about what they could do, or what they might do, that’s five-four, 150 pounds, you six-something, right — maybe close to six feet, 240 pounds — does not precipitate you shooting ’em, right?”

Swanier said he felt scared for the safety of his goddaughter, but Foy doesn’t buy it.

“What you’re telling me is you don’t understand the use of force continuum,” Foy snaps. “You don’t understand Louisiana laws concerning self-defense, you don’t understand deadly force.”

Listen to clips from the interview by clicking here.

Swanier did not respond to a request for comment made through his attorney Robert Jenkins.

Martin told The Lens he is disappointed with Cannizzaro’s decision not to prosecute.

“That’s really not enough. He should be charged,” Martin said. “I really did think he was going to shoot me.”

Martin’s father Michael Martin Sr. brought the issue to the attention of the Public Integrity Bureau after first complaining to a 7th District sergeant.

“The sergeant told me she was going away on vacation that weekend and they would get to it on Monday,” Martin Sr. said. “So I took it to the Public Integrity Bureau because a friend of mine happens to be a public defender and knew somebody over there. They looked into it straight away.”

Martin said he also hopes that Swanier is charged for his misdeed.

“If my son was walking around pointing guns at people you can bet your life he’d be in jail,” Martin said. “He’s just a kid, and anybody would be scared for their life in that situation. I think this officer should be treated just like any other person would have been.”