Selective Enforcement
The Sixth Street Load-In Policy
By Christopher Hess, Fri., May 1, 1998
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But there are others who frequent the bars and venues of the downtown strip. There's a large contingent of people who don't fit the categories of sheep and shepherd, and they're down on Sixth Street every night in and among the police. Sixth Street is their turf as well; this is where they work. They're called musicians, and while some are down on the street partying along with the rowdies, others only stop in this part of town for one reason: to get to a gig, play it, and go home.
That's what Brannen Temple and Edwin Livingston of Hot Buttered Rhythm were trying to do on the first night of South by Southwest 1998. "I was trying to load into the alley for a gig at the Mercury," says Temple, widely regarded as one of the premier drummers in Austin. "And I saw this cop out of the corner of my eye, turning his vehicle around to stop me.
"Since it's not uncommon for a cop to act hastily or hurriedly while doing his job, I didn't think of it and kept moving the barricade back, when he puts his car in my way. He jumps out of his car, hurriedly, and starts asking me who gave me permission to move that, what was I doing? I said unloading my gear, no one gave me permission."
In order to load their equipment into clubs on Sixth Street, venues like the Mercury Lounge, Steamboat, and the Black Cat, musicians have two choices: they can double-park on Sixth Street or they can load-in through the alleyways behind the club. Since it was SXSW, the street was blocked off. Had the yearly music festival not just begun, the street might still have been blocked off. On this night, however, not only was the street blocked off, so were the entrances to all the alleys. Having both avenues blocked off happens less often than just Sixth Street being barricaded, but it does happen. Which left Temple with two choices: forget the gig or move the barricade. Temple chose the latter.
"I even told him that cops have told me to move that barricade on more than one occasion," says Temple, who moved the saw-horse style barricade (the kind usually associated with construction) to get in to the alley behind Esther's Follies. "At that point, I told him, `I wish you guys would get one consistent thing and be organized instead of this little random stuff, because it's really stressful. All I'm trying to do is go in [to the Mercury], I'm not trying to park, I'm not trying to come back here and piss or vandalize or do anything else, I'm just trying to get to the gig.'"
Officer Richard Muñoz "wasn't having it." According to Temple, the fact that he was a musician trying to get to a gig had no bearing at all on the situation, and reason was failing by the time Livingston arrived.
"I guess I pulled up about 10 minutes later, and I see Brannen in the alley having a conversation with a cop - alone - so I pull in," says Livingston. "Right away, [Officer Muñoz] says, `What do you want?' I told him we were in the same band. I wanted to make sure [Brannen] was all right. He told me to go stand by my car."
From there, the situation worsened. According to Livingston: "I was standing by my vehicle for a while just watching him, and after a while he looks at me and says, `If you don't leave in five seconds, I'm gonna put you in jail.' They were about 20 feet away, so, I was like, okay. Then he starts counting out loud with his hand in the air, one, two... So I got in my vehicle. I was already in the car by the time he got to five, but I guess that wasn't fast enough. He came up and said, `Step out of the vehicle and put your hands on the car.' I was in my vehicle ready to leave the scene, but it wasn't good enough for him. I got out of the car, put my hands on the vehicle, he frisked me, then he handcuffed me."
Temple: "Edwin drives up and he sees me by myself with a cop and nobody else around. He's like, `What's the problem?'" says Temple. "The cop was obviously hostile to him, and Edwin flat out told [Muñoz], `I don't trust you.' But he went over to his vehicle - the cop told him to do that and he did it.
"By this point, I was feeling frustrated, and I finally told [Muñoz], `Look man, what do I have to do to make this problem go away?' I was hoping to hear him say to just load up and get the heck out of here or, `You have to go that other way 'cause you can't come this way.' I mean, anything. And he says, `I'm gonna need an apology from you, you need to apologize to me for moving the barricade.'
"He was out of his mind."
Temple's uproar over this request made Officer Muñoz order Livingston to leave the scene. Not fast enough, though, so the two musicians landed in jail.
Senior Officer Jim Minton with the APD Tactical Division, the group of walking, mounted, and bicycle police officers that work the Sixth Street beat, explains the laws and the procedures this way: "It's all based on public safety. Double parking is illegal, but you can stop to load and unload, and that's written into the laws as well. The definition of loading and unloading is that somebody has to be with the vehicle. You can't unload, then go disappear and leave the car abandoned.
"We allow [musicians] to load and unload, and the only time we have to give warnings or tickets or impound a vehicle is when there's no one around the car. Sometimes band members unload a vehicle and then they'll go in and set up and the car will sit there from 20 minutes to an hour. We'll make an effort to find out whose car it is and warn them, and if they don't move it by the warning, we'll impound it with a parking citation on it.
"At 11pm on Friday and Saturday nights we barricade the streets. We tell the band members that if you can discreetly get into the alleys to do your loading and unloading that's fine. But you can't come through a barricade on one of the major streets, because that's a violation. We have a city ordinance that prohibits anyone from moving or tampering with a barricade; that's a class C misdemeanor and you can be issued a citation and/or placed in jail for that, the least being a verbal warning.
"Then there's state law, a class B misdemeanor, called tampering with a barricade. Typically we file that when someone has intentionally kicked down or turned over a barricade. We file that in aggravated circumstances, when they've attempted to destroy the barricade.
"The alleys are commercially zoned 24 hours, but there's a law that lets us govern the traffic in those alleys. We may close them off for the traffic. That's what I meant by discreetly getting into the alley. Often musicians will be parked within the barricaded area [on the street, because they parked there before the barricades went up], and we'll let them into the alley to load and unload or whatever, but they can't come out onto the main thoroughfare. We can't help them out of there late because of the call load, the fights and disturbances and drunks, etc., at 2am."
Once the streets are blocked off, they're closed until 3am. Sometimes, the alleys are closed too, which is what happened when Temple arrived, but here Minton's ideas differ greatly from Officer Muñoz's, who would not return the Chronicle's phone calls. According to Minton: "We will tell musicians that if you can discreetly get into the alley, pick the barricade up, drive through, stop, get out, put the barricade back, that's fine, we can work with people. But what happens a lot of times is they'll drive into the alley and leave the barricade laying down. That lets traffic pull through, and taking it one step further, that lets traffic onto the main thoroughfare that we've blocked off."
Lt. Harold Piatt, the senior officer of the Sixth Street beat until about a year ago, says he and the officers under his command were behind the push to get the alleys zoned commercially. "We made the alleys on the north and south sides of Sixth Street commercial loading zones specifically for the use of band people on nights when the street is closed - to use them as a way to load and unload their equipment in the clubs. Clubs are required by fire standards to have more than one exit, and that's usually a rear exit, and that's where they need to go."
When the alley is blocked, procedure becomes a gray area of a more threatening sort.
"If the police department closes or barricades a street, then there is no access to that area," continues Piatt. "If it's closed as part of a street closure where a permit's been applied for, then whoever has the permit controls who goes in and out. In the past, SXSW has not had a street closure; they don't have anything that's out in the street, except that last year up at Brazos and Sixth they had a band onstage and they had a street closure for Brazos only.
"But in the past, they haven't had anything right on Sixth, so anything that was closed on that weekend or as a result of the SXSW traffic probably was a police barricade."
Which it was, as SXSW did not order any street closings that night. Leaving this: If Sixth Street is blocked off, and the alleys are blocked off, too, how is a musician supposed to load gear into a club? Neither Piatt nor Minton would comment in any specific terms on the incident involving Temple and Livingston, but both said each situation depends on the officer involved. A gathering of walking beat cops, who spoke on the condition of anonymity, were a bit more candid.
"Then they're out of luck," said one officer as his partners nodded.
They would have to go find parking and then lug their drumkit piece by piece to the club?
"Yep," said a second policeman. "It depends on the officer."
"According to the law, they can't touch that barricade," finished the first.
According to APD officers, musicians, and people who work in the Sixth Street trenches, selective enforcement is the name of the game down on the street. Official response is a gray area left to the will of the individual officer, and this fact always hovers over these musicians as they try to get to and from work.
"Most of the Sixth Street cops are cool," says Danny Crooks, owner of Steamboat, a club that relies on double parking to get the bands in. "They know what we are and what we do. The only time we have a problem is when it's a cop doing overtime or when they need extra cops and they bring in people who don't normally work that area. They don't understand that this is an entertainment district and sometimes you just have to bend the other way. By the strict letter of the law, you would have to arrest everyone on Sixth Street every time they walk out of the door."
Officer Minton said he couldn't comment on specifics of the case, but had the following to say about it nevertheless: "I'm familiar with it, I've read the report. That wasn't a walking beat officer that handled that, he was a regular patrol unit. I don't know what he was doing in the area. That officer doesn't work under our unit and I wasn't there when that happened.
"I know there was some issue being raised over whether it was a construction or a police barricade. As far as that goes, regardless if it's a construction or a police barricade, both [city and state] laws apply.
"I don't know if [Muñoz] was familiar with our practice. Technically, it's a violation. We tell musicians, `Here's my name, if you can discreetly move a barricade and get in, you can do that.' The officer may not have been familiar with the system, I don't know. The walking beat officers, we try to stay on the same sheet of music, and we try to work with these people down there so we can cohabitate. We allow them to do that. As far as what that officer was thinking, I have no idea."
The figure of Officer Muñoz looms large over this story; his actions at the moment of confrontation are what has made this anything other than normal routine. Normal routine, however, isn't always quite as smooth as everyone would like to think. Brad Evilsizer, drummer for local Latin jam band Ta Mère, had an experience last May that besides being totally unnecessary, proved painfully expensive.
After playing an opening slot at the Mercury, he loaded his drums into his car, which had been parked on Sixth Street previous to its being barricaded off. After loading out, he attempted to leave when he was stopped by the police, who told him that he could not move a barricade to get out.
"He said, `If you move the barricades, we're gonna arrest you.' It was like 10pm, and he told me I had to wait until 3:30am," says Evilsizer. "I left my car there, thinking there were cops around and they'd watch my car. I went home, and when I came back, the drums were gone. Someone had broken the back lock off my truck and taken them. It was about $3,000 worth of stuff, and granted, I shouldn't have left them there, but I was tired after the gig and wanted to go home, and the cop assured me it would be watched, and it wasn't."
J.J. Johnson, also a drummer for Hot Buttered Rhythm, has had his share of run-ins with the authorities while getting to or from his many Sixth Street gigs. Loading into Steamboat one evening for a show with Hush, he was ticketed for being double-parked.
"At the time, it was difficult to get drums into Steamboat through the alley, so I was on Sixth," says Johnson. "This cop was giving me a hard time and I'm trying to explain to him what the situation is and he was being completely unreasonable about it, telling me that I had to leave. He was really taking it to another level, making it more personal than anything. He was really getting in my face, and I told him I didn't appreciate that, and he really got riled up. People were gathering around. It had become quite a scene, and people were trying to intervene on my behalf. He wanted to arrest everybody."
A senior officer eventually approached the scene and told Johnson to go get his stuff and leave, which dissipated the situation, but left the officer in question still riled. Which brings up a question that comes up often in accounts of police harassment on Sixth Street. Johnson, who is black - as are Temple and Livingston - had double-parked behind another car that was already double-parked, that of Pam Miller, a singer for Hush, who is white.
Danny Crooks: "I brought that up when J.J. had a problem. Pam and Amy, two white girls, had their car sitting there for 10 minutes and was still there when J.J. pulled up. Before he got out of his car, the cops were telling him to move it or he's going to jail. Pam comes out and argues with the cop about him harassing J.J. and her car was still there and it was never even brought up. I said that to the cop at the time - it probably talked him out of arresting J.J. Maybe it was coincidental, but the only times I've ever heard about it happening has been to black people."
Following the incident of March 18, Brannen Temple and Edwin Livingston did not get home until very late. Livingston, who was kept in a holding cell in his clothes and jail-issue sandals, was released around 3:30am. His court date has not yet been set.
Temple didn't get out of jail until 4am that same morning. He was removed from the holding cell he shared with Livingston and taken upstairs, where he was issued a set of gray jail scrubs and was forced to strip and change into them, then was placed in a cell with two other people that was only built to house two.
"Edwin and myself were in this holding pen with cats who had attempted arson, robbery, assaulting women, assault period, drugs, public intoxication, everything. I'm in there for moving wood - for touching sacred police wood. I spent four hours in jail, I got naked in front of other humans, in front of crackheads. You know what I'm saying? Being in a jail cell, which was nasty, sharing a cell for two with two other people. That ain't right."
Temple has an arraignment set for May 7, when he will face the charges of tampering with a police barricade. "I could get fined, that's about it as far as I know," he says. According to Officer Minton, tampering with a police barricade, a class B misdemeanor, can carry six months jail time. While it seems doubtful that anyone would push such a ludicrous charge to this extreme, no one should rule it out as a horrible end to an inexplicable situation.
For the most part, the APD treats Sixth Street partiers with what might be called a begrudging tolerance. What goes down on Sixth Street is an economic reality for the City of Austin, so the APD are there in part to make sure no gets hurt. The problem with the case of Livingston and Temple, who were on their way back from the Austin Music Awards where Hot Buttered Rhythm had just won the Funk Band of the Year award and where Temple had taken best drummer honors, is that not only weren't they given that same base-line consideration, they should have actually been given some special consideration seeing who they are and what they were there to do: their jobs.
