Federal prosecutors have charged Wilber Rafael Garces Perez, a 28-year-old Venezuelan man who was shot in the back by an Immigration and Customs Enforcement officer in North Austin on Sept. 20, with assaulting a federal officer. The charge was announced Tuesday, Sept. 29. It comes nine days after the shooting we described on Sept. 23. Prosecutors spell his surname “Garces-Perez.”
What he is charged with
The U.S. Attorney’s Office for the Western District of Texas said he faces one count of “assaulting, resisting, interfering, and impeding a federal officer.” He made his initial appearance Tuesday before U.S. Magistrate Judge Dustin Howell. The Justice Department said that if he is convicted, he faces up to 20 years in federal prison.
The release adds: “A criminal complaint is merely an allegation and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.”
What happens next
The Justice Department said a detention hearing is set for Friday, Oct. 2. Court records list a motion, filed Sept. 28 by the government, to detain him without bond.
A separate civil case also matters. His lawyers filed a habeas corpus petition in San Antonio seeking his release and a stay of his removal, and a hearing had been set for Sept. 30. The Tribune reported that the hearing “was canceled after Garces Perez was criminally charged, which takes precedence over his immigration case.” KUT described it as postponed. Rochelle Garza of the Texas Civil Rights Project, part of his legal team, told the Tribune the timing “was intended to thwart his ability to be released.”
The government’s account
According to the Justice Department’s summary of the criminal complaint, ICE officers stopped him because an immigration judge had issued a final order of removal. When he did not immediately stop, one officer cut off his car, KUT reported, citing court documents; the affidavit says the officers reported no contact between the vehicles, according to KEYE. The complaint alleges he handed over his driver’s license but ignored orders to put the car in park and step out. It alleges he then closed his window and drove off, striking an officer in the torso with the driver’s side mirror.
The complaint alleges he then led officers on a high-speed chase through commercial and residential areas, and that when one officer caught up, he tried to hit the officer with his car, “causing the officer to fire his pistol.” The Justice Department’s release also says body camera footage shows the moment he drove off.
His account
Garces Perez gave investigators a different version, KEYE reported. He said the officer’s SUV hit his car during the stop. He acknowledged ignoring the order to get out, saying he wanted to park so his wife could pick up the car. He said the chase ended when the SUV struck his car and spun it around, and that the officer then fired into his back right window, hitting him in the upper back. KUT reported that the court documents’ sequence of events contradicts what he and his attorney, Kate Lincoln-Goldfinch, had said earlier, when he described being sideswiped by an unmarked SUV and shot while trying to pull over.
Lincoln-Goldfinch told the Tribune that at the courthouse he “was clearly very confused and distraught. He was in a lot of pain.”
What is still unknown
None of the footage released so far shows the shooting itself. KEYE and the Tribune, citing the affidavit, reported that one of the two officers wore a body camera and the officer who fired did not. KUT added that the second officer’s footage has not been released publicly and that he turned his camera off before reaching the scene of the shooting; KEYE reported that the partner turned his camera off after losing sight of the pursuit.
Video released by Austin police last week showed ICE officers talking with him in his car and a pursuit, KEYE reported, but none of it showed the shooting; three gunshots can be heard on video recorded by an off-duty Austin police detective, the station reported. The Austin Police Department’s Special Investigations Unit and the Texas Rangers are investigating. ICE referred KUT’s questions about the charges and the footage to the Justice Department.
Lincoln-Goldfinch told the Tribune he is in U.S. Marshals custody and was taken for a medical review. At the detention hearing, a judge will decide whether he stays in custody while the case proceeds.