SAN ANTONIO – Amid criticism that his department operates under a veil of secrecy and refuses to adopt reform measures, VIA Transit Police Chief Mark Witherell said the agency will not create a critical incident video release policy or outright ban the use of chokeholds.
“The department doesn’t have a plan to create or change any future policies without the need to change them or without the direction from our accrediting body or our governing body,” said Witherell, the transit agency’s chief of police and system security.
His comments came days after VIA officials met with members of ACT 4 SA, a local police reform group, and other community organizers.
In a series of social media posts made last month, ACT 4 SA listed a number of accountability measures it hoped the agency would adopt.
“Policing is constantly evolving and we need to know that your policies and practices and trainings are updating with society,” said Ananda Tomas, executive director of ACT 4 SA.
She said VIA PD got on her radar late last year after she read a newspaper article that analyzed the agency’s ticketing practices.
“We took a deep dive into their policies and procedures manual to see what they had in terms of racial bias training, de-escalation of force, not using chokeholds, reporting practices,” said Tomas.
VIA officials have disputed significant portions of the article, and during a board meeting late last month, detailed a list of inaccuracies they believe the piece contained.
VIA PD weighs in on use of chokeholds
After conducting her own analysis of the agency’s procedures, Tomas said needed reforms included an outright ban on using chokeholds and the creation of a critical incident video release policy.
Bans on chokeholds, a grappling maneuver which prevents or critically reduces air or blood from passing through someone’s neck, have become more prevalent within U.S. law enforcement agencies in recent years.
VIA PD’s procedures label chokeholds as an unauthorized use of force, unless the officer is in a justified deadly force situation.
The San Antonio Police Department, by comparison, has prohibited the maneuver from being used by its officers.
“There are times that officers have to use deadly force that is not a weapon, and that’s what the state law allows for, and that’s what our guidance from Texas Police Chiefs (Association) allows for as well,” said Witherell.
Tomas said after her group aired its concerns about VIA PD publicly, agency officials reached out less than 24 hours later and eventually agreed to meet in person.
Tomas described the subsequent in-person meeting, which included top VIA officials and some members of its board, as a positive, “free-flowing conversation.”
“But, really, at the end of the day it was ‘we’re going to review what you the community have brought forth and we will get back to you,’” said Tomas.
Witherell, during a recent interview with KSAT, pushed back on claims that his medium-sized department, made up of 60 transit and security officers and dispatchers, is somehow not transparent.
VIA’s own board, however, during an April 29 meeting, conceded that more could be done to inform the public about VIA PD’s role in the community.
“We, as an entity, have a duty to educate our population more effectively in regards to what it is our LE, our law enforcement entity, really does, really concentrates on,” said trustee Kevin Wolff, a former Bexar County commissioner.
Witherell said one request from ACT 4 SA that his agency is amenable to is eventually posting the department’s standard operating procedures online.
“I don’t believe we have the current technology in place to do so,” said Witherell, when asked why VIA PD’s procedures are not currently online.
He said two technology contracts currently out for bid could lead to these procedures being posted in the future.
VIA officials on May 2 released hundreds of pages of the partially-redacted procedures to the KSAT 12 Defenders, which KSAT has posted below.
Witherell said his department includes licensed Texas peace officers and level 3 security officers. The security officers are permitted to carry weapons but do not patrol off VIA property, according to Witherell.
He said the agency’s officers are trained beyond the minimum state standards and that the entity takes its guidance from its accrediting body, the Texas Police Chiefs Association.
Multiple in-custody deaths. No video release policy.
Witherell said its officers responded to 28,000 calls for service last year.
While the department’s officers are legally licensed to enforce Texas laws, Witherell said their primary focus is protecting VIA riders, operators, employees and the transit agency’s properties.
“Those calls for service, if we weren’t here, would be answered by San Antonio (police). So we’re taking a burden away from them as well as we have the ability to work specifically in that transit mode,” said Witherell.
In the past 13 months, VIA transit police have been entangled in a number of high-profile incidents, including two in-custody deaths.
April 2021: VIA police officers shot and killed 28-year-old Terry Wayne Bishop, who investigators said was armed with a gun on a VIA bus near downtown.
A VIA PD report released by officials nearly a month after the fatal shooting claims that officers responded to a report of a disturbance involving a male with a gun.
The four-page report includes no details about why officers felt compelled to shoot Bishop.
In late April 2021, the Defenders requested VIA body-camera footage of the shooting. In late June, VIA officials asked the Texas Attorney General’s Office to allow them to withhold the video.
The AG’s office sided with VIA weeks later and the footage was not released publicly.
February 2022: VIA police exchanged gunfire with someone in a vehicle during an attempted traffic stop in the 100 block of E. Maple St.
As a VIA officer was walking toward the vehicle, someone from inside used a gun to fire multiple gunshots toward the approaching officer, according to previous reports.
While neither officer involved in the shooting incident was injured, a person in the vehicle later showed up at a hospital with multiple gunshot wounds.
A mandatory report submitted by VIA PD to the AG’s office days after the shooting confirmed that the person shot was a 16-year-old boy.
April 2022: The owner of a local BBQ restaurant was accused of assaulting a VIA police officer at an apartment complex after he refused to pull over east of downtown.
Adrian Martinez, 44, was charged with driving while intoxicated, evading arrest, resisting arrest and attempting to take a weapon from an officer, according to jail records.
May 2022: A woman was hit and killed in the 9700 block of Interstate 10 West after escaping the custody of a VIA Transit officer.
The woman, who was not wearing clothes and appeared incoherent while talking to the officer, was later restrained by the officer for her safety. She escaped, however, and was hit and killed while running across the westbound lanes of I-10.
The Bexar County Medical Examiner’s Office has identified the woman as 21-year-old Odalys Vianney Madrigal.
Madrigal’s death marked VIA PD’s second in-custody death in just over a year.
Witherell called Madrigal’s death a tragedy but said he could not comment beyond that since SAPD is handling the investigation.
A Defenders request to VIA for body-worn camera footage of the fatal incident remains pending.
Regarding another KSAT request for footage, last May, VIA officials also declined to release onboard camera footage to the Defenders of a crash involving a VIA bus in the 800 block of S. Flores St. that resulted in three people being taken to the hospital.
In late July, the AG’s office allowed VIA to withhold the video, writing that VIA lacks the technological capability to redact motor vehicle information from the footage.
The following month, in August, VIA officials again asked the AG to allow it to withhold footage requested by the Defenders. That request pertained to surveillance camera video of a Comal County Sheriff’s deputy shooting a pursuit suspect on VIA property weeks earlier. The AG’s office in October ruled that VIA could withhold the footage.
Pressed about why his department has not created a critical incident video release policy, despite being involved in a list of high-profile incidents involving the public recently, Witherell responded that VIA instead refers to the state’s public information laws.
“We feel comfortable that our policy reflects state law,” said Witherell.
The back and forth between this reporter and Chief Witherell included the following exchange:
Dillon: So why not go beyond state law? Why not be transparent like an SAPD and create a policy where critical footage will be released within 60 days?
Chief Witherell: So I, I take my lead from not only the accreditation standards, but also from our executive board, our citizens’ board, legal staff. I’m sure if there was an outcry or there was a direction, that’s the direction the bosses wanted to go, such as probably what San Antonio received from their direct supervision, I think we’d probably be that same...
Dillon: So ACT 4 SA putting out complaints about VIA PD publicly is not considered an outcry? I mean, you need something worse than that?
Chief Witherell: Well, like I said, we met with Ananda and those folks over there and explained our positions on this.
“What we want to know is you have nothing to hide and you’re willing to be transparent to us,” said Tomas, when asked about VIA PD’s lack of a critical incident video release policy.
“They’re very demeaning.”
Antonio Padron, a former VIA bus operator who resigned his position early this year, said its police officers often show an ignorance of culture and would benefit from receiving re-education on how to interact with segments of the population who most often ride their busses.
“I feel like they use intimidation tactics. They’re very demeaning, and I also feel like they don’t want to deal with a lot of the situations that they handle,” said Padron when asked about VIA police officers. He added that one of the primary reasons he resigned from his position was because of VIA’s work culture.
Padron said he was asked to attend last month’s meeting between VIA and ACT 4 SA representatives in order to speak about his personal experiences while working for the mass transit agency.
“Most of the time, I was just seeing them harass people. If they’re called out, you already can expect the attitude to come out,” said Padron.