APD 'Documents the Instigators'

Austin Chronicle photographer Jana Birchum is manhandled by an Austin police officer at Monday's protest. (Photo By Alicia Wagner Calzada)

When Brandon Darby and Ron Deutsch went anti-war protesting on Thursday, March 20, they had no idea they would be arrested -- nor that the bust would spark serious questions about possible First Amendment violations by Austin police. But that's exactly what happened, and now the state's ACLU director is questioning APD's use of protester photographs to identify possible activist "instigators" -- a situation eerily similar to the infamous Denver "spy files" case currently making its way through federal court.

According to 26-year-old Darby, he was walking with other protesters down Congress Avenue when he noticed a group of people who seemed obviously undercover cops -- "it was their dress and mannerisms," Darby said -- trying to incite aggression among peaceful protesters. Further, he said, he saw the cops using a digital camera to photograph various activists. Darby said he tried to take his own photos of the plainclothes officers as a visual aid for the complaint he said he intends to file with the APD. But the cops began hiding their faces, Darby says, and then became aggressive, surrounding him and threatening, "We've got your number, motherfucker."

"I was slightly scared," he said, so he went back into the crowd, where he saw his friend Ron Deutsch, a local freelance journalist who has written for both the Chronicle and the Statesman. "I told him about the cops trying to provoke violence and threatening me," Darby said. "I told him I wanted to take a photo of them." According to 47-year-old Deutsch, when Darby told him what was going on, Deutsch's reporter instincts kicked in. "Being a reporter, although not wearing any credentials, I thought this might be a good story to follow up on," he said.

Near the intersection of Congress and Seventh, the two men left the crowd and returned to the intersection at 10th Street where Darby had seen the cops. When Deutsch raised his camera to take a photograph, he says, he and Darby were tackled and arrested. "They put the cuffs on me and said they were APD," Deutsch said, although it wasn't until the officers loaded the men into an unmarked van that they actually produced their badges. The men were taken to central booking and later released. Darby was given a citation for "pedestrian in a roadway"; Deutsch was ticketed for jaywalking.

APD spokesman Kevin Buchman disputes Darby and Deutsch's account -- at least in part. "Nobody was arrested or shown any aggression until [the cops] were aggressed upon," Buchman said. Since learning about the planned protests, he said, police have tried to work with organizers to ensure safety and calm. Part of that strategy, he said, was to make any charges brought against people "as light as possible" -- e.g., writing tickets for pedestrian in a roadway and the like instead of more serious charges such as interfering with police. "We are trying to be tolerant." Buchman acknowledged there were undercover cops in the crowd -- "We do that all the time" -- and that undercover cops do take photos of certain protesters. "That's true," he said. "We try to document instigators in a crowd and keep that information for later use at future events."

But the documenting of activists for "future" use is a problem, said Will Harrell, executive director of the ACLU of Texas, and could be a violation of First Amendment rights of free speech and peaceful assembly. Harrell said that it is well-established law that, "the act of [police] being there, taking photos of peaceful demonstrators intimidates people and is a violation of free association and free speech ... Taking pictures of peaceful demonstrators chills First Amendment rights."

Further, Harrell finds it disturbing that police say they keep the photos for future use -- the same situation that is currently the source of a federal lawsuit in Denver. Last year it came to light that since 1950, the Denver Police Dept. has kept detailed files on nearly 3,000 local political activists -- in its so-called "spy files" -- even though the subjects had not violated any law and were not the target of any criminal investigations. Discovery of the extensive files prompted the ACLU to sue Denver police. Settlement talks are currently underway with a federal magistrate.

Buchman disputed the Denver analogy because, he said, "that's a different state and there are different governing bodies." He said he knows of no legal restrictions that forbid police from taking pictures and using them later. "If there's an individual that is causing problems we want the officers to know who it is so they can keep an eye on them," he said. "If it is someone who is there constantly, we'll be able to identify them at additional protests." Buchman said the photos aren't kept in an actual file, but the practice is common, he said, especially with documenting known gang members.

Of course, there's a difference between keeping tabs on individuals involved in criminal activities and keeping tabs on political activists, and that is the heart of the issue, said Harrell. Ironically, Harrell just returned from Denver where he met with the ACLU attorneys handling the spy-files case, "knowing that if they do it in Denver, they do it in Texas," he said. "It's the spirit of J. Edgar Hoover that has permeated law enforcement across the nation."