Not Quite 'Ya Se Fue!'

According to Austin Police Officer Justin Owings, he was patrolling the 300 block of East Sixth Street around 2:30am on March 18 (early Thursday morning) when he came across "several members of a local band" walking out of the club Exodus while playing their instruments. As the band members played, a crowd outside the venue "began to yell and scream," wrote Owings in an arrest affidavit. "Fearing that the music could incite a riot I immediately walked up to the band members and informed them that they could not play out in the street" and that they needed to go back inside the club. According to Owens, the "band members ignored me and continued to play," so he took from one of them a set of drumsticks and warned them all that if they didn't go back inside they would be ticketed. At that point, Owings wrote, the band stopped playing, but the crowd began to "yell and scream profanity toward me." The band then resumed playing as they made their way back to the entrance to the club. Owings wrote that they still refused to go inside and that one band member actually stopped moving toward the club entrance. Owings "waited several more seconds," he wrote, before approaching the band member to say that if he did not stop playing his instrument he would be arrested and taken to jail. The band member, Owings wrote, "immediately turned around and continued playing his instrument."

That is the beginning of the official police story of how two band members and the manager of the Los Angeles-based Grammy Award-winning band Ozomatli were arrested and charged – two with misdemeanors, one with a felony – at the end of their hourlong show on the opening night of the South by Southwest Music Festival. Based on the police version of events, Ozomatli bassist Willy Abers was charged with failure to obey a lawful order (a class C misdemeanor, punishable by up to a $500 fine); band manager Amy Sue Blackman-Romero was charged with interfering with police duties (a class B misdemeanor, punishable by up to 180 days in jail); and drummer Jiro Yamaguchi was charged with assault on a police officer (a third-degree felony, punishable by up to 10 years in jail). The three spent the remainder of the night in jail. Abers, whose citation does not hold the potential for additional jail time, was released later Thursday morning; Blackman-Romero and Yamaguchi were each released on personal bond later that day.

Unfortunately, the official story isn't the whole story, nor is it necessarily an accurate one, for it is contradicted in several important ways by eyewitnesses – including several people who recorded much of the incident on videotape (one videotape of the incident was released by the band's attorneys last week, playing in heavy rotation on local TV news). Indeed, the differences between the official police version and the unofficial eyewitness version raise a handful of questions about police training and supervision – and also about the truthfulness of some officers at work that night on Sixth Street.

As it happens, this reporter was also an eyewitness to the events outside the club – and what I saw and heard does not, in crucial details, correspond to the official APD version of the incident.

Although Ozomatli's Wednesday night gig – part of the Rojo, Caliente y Verde SXSW showcase of alternative Latin music at Exodus – was slated to begin at 1am, the show was running late, and the band didn't actually take the stage until just after 1:30am. So it wasn't until nearly 2:30am that they stepped from the stage, instruments in hand, to lead the crowd through their standard closing routine (the same routine that spilled out of the old Steamboat club and onto Sixth Street at the end of their first SXSW performance in 1999). The band led fans in a Spanish chant – "Ozo-mat-li, ya se fue, ya se fue!" ("Ozomatli is leaving!") – while moving the crowd out through the front door of the venue for a brief jam before returning inside to say, "Goodnight!" This night, they never got the chance to deliver that salutation.

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Owings vs. Eyewitnesses

According to Owings' account (currently the only publicly available official APD version), that's because the band refused to obey his order to stop playing music in the street – a violation of the city's noise ordinance – and return to the club. Even though he told bassist Abers that he would be arrested if he didn't heed Owings' orders, "Abers immediately turned around and continued playing his instrument," Owings wrote in his sworn statement. "I then took hold of Abers' arms and Abers began to try and elbow me with his arms and to pull away to get inside the club," he continued. "I then pushed Abers against the front wall of the club where I could control his violent swinging." (I was standing near both men, and, as the videotape confirms, there was no "violent swinging" by Abers – indeed, as the musician is walking toward the club door, Owings grabs him from behind by the shoulders, pulls him first backward and then shoves him forward toward the wall of the club.)

According to Owings, while he was trying to control Abers, band drummer Yamaguchi "took the large drum that he was holding and swung it striking me in the back of the head causing a great amount of pain to my entire head." Yamaguchi "then struck me several more times in the head with the drum and then ran into Club Exodus." According to Owings, it wasn't long before Yamaguchi came back outside and "was yelling and using profanity towards me to release Abers because he was a member of the band." That was when he asked fellow Officer J. Patterson to arrest Yamaguchi, he wrote, "for assault on a police officer due to he had assaulted me." (As the videotape confirms, any brief contact between Yamaguchi's drum and Owings' head was inadvertent and accidental – Yamaguchi was in fact attempting to carry the drum above the crowd and back into the club when Owings suddenly backed toward him.)

At that point band manager Blackman-Romero approached Owings, he wrote, attempting to question the officers about the arrests. Owings asked her to back up, but told her she could follow the officers and ask questions as they walked Abers and Yamaguchi to the jail transport van. She "did as instructed" until she began to "try and talk" with Abers and Yamaguchi. Another officer asked her to step back, Owings wrote, but she would not comply. Owings saw Cpl. Jennifer Stevenson "use her hands" to "guide" Blackman-Romero back to the sidewalk; still the manager wouldn't comply, so Stevenson arrested her "due to the fact that she caused the Officers who were trying to calm and control a volatile situation to draw their attention away from their work and address her continual interference," Owings concluded.

But this official version of the incident, reiterated in part by Downtown Area Command Lt. Ronald Potts in an e-mail to Assistant Chief Cathy Ellison, is very different from the version offered by eyewitnesses, and indeed from what I saw and heard that night. (Potts was not present at the club, but among the large crowd of eyewitnesses was Mayor Will Wynn's administrative assistant Thelma Barraza, who declined to comment for this story.)

The contradictions begin almost at the beginning of Owings' account.

What is not in dispute is this: The band emerged onto Sixth Street, playing their instruments, accompanied by clapping and chanting fans, and Owings quickly approached, accompanied by another officer, to tell the band to stop, an announcement greeted by fans close enough to hear with a chorus of "Boo!"

Nearly everything that happened next is in dispute. The band members heeded the order and immediately turned around, some still playing their instruments, heading back toward the entrance to the club. That turnaround appears to have sparked the somewhat confusing situation leading to the three arrests. "What is very important to realize," said attorney Bobby Earl Smith, who is representing the Ozo 3, "is that the crowd [inside Exodus] was pushing from the inside out. They were pushing from behind while the officer approached from the front." In short, the officer's command set up an untenable situation in a compact crowd trying to move in two different directions at once.

On Monday, Smith told the Chronicle that he's been told that the APD considers the videotape "inconclusive," and accordingly the charges remain pending.

Judging by his sworn account, it doesn't appear that Owings (or, for that matter, any of the other officers on the scene) properly assessed the limitation of movement imposed by the crowd itself. Abers and the other band members simply weren't able to get back inside fast enough for Owings, who, in the middle of the churning crowd, grabbed Abers, pulled him backward, and then pushed him face-first against the limestone wall next to the club's front door.

Grabbing Abers did little to calm the crowd or its movement. Confused fans pressed in and tried to tell the officers that they had made a "mistake" and that Abers was part of the band. Yamaguchi, bass drum still in hand, got caught in the press of fans (and a growing group of onlookers) as Owings focused his attention on Abers and downward to Abers' wrists. In an attempt to move through the crowd, Yamaguchi raised his drum, passing it over his head to someone inside the front entrance of the club. Indeed, it appears that it was this confluence of movement – Yamaguchi lifting up and over, Owings looking down and moving backward, that may have caused the back of Owings' head to connect with Yamaguchi's drum.

Yamaguchi apparently didn't even notice the contact, and once the instrument was out of the way, he moved through the crowd and back inside the club – in compliance with Owings' command. But Owings quickly looked up and, still holding Abers' arms, told Officer J. Patterson to get the drummer who'd just "assaulted me." Patterson quickly moved into the entrance and extracted Yamaguchi. Outside the club, the officers pressed Yamaguchi's face toward the sidewalk as yet another officer (who, at press time, had not been identified by witnesses or in Owings' affidavit) released a cloud of pepper spray toward the arresting officers and into the club's entryway. The blast of spray had its intended effect, sending onlookers fleeing from the door of the club. "It was a cop I saw spraying, but he wasn't spraying it at anything," said Las Vegas-based journalist Josh Ellis, who was standing nearby. "He was just spraying it out, and people started running away."

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Not the Noise Ordinance

But the mini police riot wasn't quite concluded. The crowd had moved back and in part dispersed, but it was riled once again when Stevenson, the ranking officer and therefore only supervisor at the scene, arrived. Instead of assessing the situation and trying to establish order, Stevenson began aggressively pushing bystanders and screaming commands for onlookers to get back. The officers on hand were ready to walk Yamaguchi and Abers toward the APD transport van a block away. Owings wrote that he'd already given Blackman-Romero permission to follow and to ask the officers for information, but while a small contingent of people, including this reporter, looked on, Blackman-Romero tried – several times, unsuccessfully – to find out what was happening. When Stevenson arrived at the corner, Blackman-Romero's quest abruptly ended – with her arrest.

Asked about the conflicting versions of events, police spokesmen had no immediate comment. To the eyewitnesses, the explanation was clear. "I've seen much worse situations diffused much more quickly and calmly by cops," said Ellis, who added that upon arriving in Austin he was advised by locals that the "downtown cops have a reputation for being very aggressive." Ellis isn't the only visitor who heard that warning. During a March 20 press conference, Ozomatli singer and guitarist Raul Pacheco said that since the early-morning incident lots of people have made comments about, and apologized for, the overamped Sixth Street officers. "We've heard some comments," he said, but added that whether that reputation is cause for concern is up to residents of Austin to decide. "We were part of one incident," he said. "I think it is the job of everyone else to put it into the context of everyday life."

Still, to Ellis and others – including band members – it appeared that what happened outside Exodus was a direct result of "overreaction" by police who "didn't think" before acting. "I don't know what happened," Ellis wrote on his Web site. "One minute I'm watching a really happy, positive musical vibe, the next minute I'm smelling Mace and people are stampeding away from me." During their press conference, several band members argued that police conduct is at the center of the story, not the city's noise ordinance – despite City Council Member Brewster McCracken's contrary assertions in a March 20 Statesman article.

Adding yet another complication, Ozomatli saxophone player Ulises Bella said that inside Exodus, Austin fire marshals had been concerned about overcrowding and made it clear that people needed to leave immediately. So, Bella said, with the marshals' approval, the band used its conga line-style exit in an effort to help empty the club. "We were doing what we were told to do: Get people out of the club," he said. But before they could do that, police asserted their contrary authority. "We feel that we did everything right," he said. "We listened to the police orders and tried to get back into the club." But that was impossible, said Pacheco. The cops "gave us bad orders," he said. "It just wasn't a good decision on their part."

Ozomatli performed again at Stubb's on Saturday night, without controversy. The Exodus incident remains under investigation by APD.