Sixth Street Blues
Downtown stakeholders raise questions about policing the police
March 2004 was not a flattering month for the Austin Police Department, nor for Austin's image as a mecca for arts and entertainment, the self-proclaimed "Live Music Capital of the World." During a two-week period, police made two high-profile and controversial busts. About 2:30am on March 18 (first night of the annual SXSW Music Festival), officers arrested three members of the Grammy Award-winning L.A. band Ozomatli outside club Exodus on East Sixth Street, where the band was just finishing its set with a rousing, signature march outside to the street. According to the arrest report, the band refused a lawful order to stop playing, a scuffle ensued, and fearing a potential "riot," police hauled three band members to jail, charging one with felony assault on a police officer.
Thanks to the mob of journalists in town for the conference, news of the arrests made national and international news. In the aftermath, the Ozomatli bust was not only a legal mess, but a public relations disaster for the APD, in large part because the police on the scene failed to fully assess the situation before leaping to enforce the city's noise ordinance. Had they done so, they likely would've seen the Austin Fire Department marshal standing near the club door. The club was overcrowded; in an attempt to avoid a potentially deadly problem, the fire department, club management, and band had determined to use Ozomatli's signature show-closing samba line to safely lead fans out of the club.
A week later, on March 29, just down the road, on the edge of the city's Warehouse District, police arrested actor Jason Patric (in town for the premiere of the movie The Alamo), charging him with public intoxication and resisting arrest. Arresting officers said Patric defied a lawful order, "mocked" an officer, and pulled away from handcuffing. News of the arrest earned Austin a spate of unflattering headlines one newswire report called the APD the "Blue Meanies."
In each case, Austin police argued that they were simply doing their job, enforcing the law without favoritism. "We aren't going to just let bands, no matter what the event is, come out onto the street and walk up and down Sixth Street," Assistant Chief Cathy Ellison said after the Ozomatli incident, as though the brief street-music altercation were instead a war over turf. "The crowds would never leave. There are times when we just have to have a zero tolerance." Chief Stan Knee made much the same defense of the Patric arrest, telling the Statesman that he believed that arrest was "lawful [and] consistent with the zero-tolerance policy we have Downtown."
In retrospect, other APD observers consider the two incidents merely an inevitable product of training problems endemic within the department and with the way it polices the city's various Downtown hotspots especially the city's primary party zone, East Sixth Street. "The Ozomatli [incident] was a prime example, and it was not an isolated incident," says one former APD officer who worked Sixth Street "for years." When he was on the beat, he recalls, "We talked things down a lot more." Now, police on Sixth often overreact, he believes, "and are not sitting back and appraising the situation. [They're] acting on emotion and not thinking." His criticisms are shared by several local defense attorneys (who regularly deal with the legal fallout of Sixth Street confrontations), Downtown business owners, other police, and some folks at City Hall. Too often, they say, Sixth Street has become a place patrolled primarily by young officers with aggressive attitudes who don't understand how to operate in the unique, entertainment-oriented environment.
The critics point out that other cities most notably New Orleans with similarly rowdy, urban party districts, are apparently able to police those areas without the flare-ups that have become too familiar in Austin. Earl Bernhardt, who owns the Tropical Isle bar on Bourbon Street in the French Quarter, comments that in his experience with Austin police, "If you stagger, then you're drunk; and if you're drunk, you're going to jail." Bernhardt's family business for several years owned a Tropical Isle location on Sixth Street (in a building owned by now Mayor Will Wynn), before it closed in the late Nineties. By contrast, he says, "In New Orleans, if you're drunk and you're having fun that's fine that's all part of it. The cops here have a more tolerant attitude. It's a 24-hour party place, and the police understand that. ... Tourism is our bread and butter; if you don't take care of that, it will disappear." That's what critics of police practice on Sixth Street fear the most: that the city will develop a reputation for aggressive, overreactive policing in its entertainment areas that will eventually scare musicians, filmmakers, conventioneers and their money away.
Local police officials and, to a lesser extent, officials at City Hall disagree. Austin police use the "safest, softest" approach possible when patrolling Sixth Street, says APD Assistant Chief Robert Dahlstrom. He adds that's not always easy in an environment fueled by alcohol and machismo. His perspective is echoed by Mayor Wynn. "At any given time there are 100 cops working with tens of thousands of young people, many of them intoxicated," says Wynn. "Alcohol and testosterone are not always a good mix."
That argument suggests that the problem on Sixth Street is primarily one of perception a perception slowly changing as the street itself changes. Efforts to remake the street's image, years in the making, have recently taken a recognizable shape with the addition of new residential properties, the completion of the convention center expansion and the new Hilton hotel, an influx of new retailers, and the creation of the East Sixth Street Public Improvement District. Downtown stakeholders have long desired a better mix of businesses on the street that would attract a more diverse crowd of patrons notably, an older, more affluent crowd to balance out the large number of college students that visit the street at night. "For years now, we've been talking about doing more with Sixth Street," said Wynn. "For me, that means a daytime presence that complements the nighttime presence."
Yet there are those who support the makeover plans who still wonder if a structural face lift is all that is needed to mend what they consider the ailing relationship among the street's stakeholders, patrons, and the police. More specifically, they wonder whether Sixth Street can actually reinvigorate its image without a major attitude change at APD.
It didn't take long for the charges to be dropped in the Ozomatli and Patric arrests. In each case, independent witness testimony, as well as videotapes of the incidents, contradicted the testimony of the officers, causing prosecutors to conclude that the cases were not viable. County Attorney David Escamilla determined that Patric had not resisted arrest and that police could not even prove he'd been drunk. (In January, Patric filed a civil rights lawsuit against APD, currently pending in federal district court.) Much the same happened in the cases against the Ozo Three. If the band hadn't been eager to put the whole mess behind them, there is little doubt they could have won in court, based on several different videos and numerous witness accounts, which together reflected that the police account was inaccurate.
Critics point out that the Ozo and Patric busts were only two of many similar police confrontations but since the majority of such incidents don't involve celebrities, they rarely make the news. "There are a lot of cases that people just don't pursue," said one former APD officer. "This is just the tip of the iceberg." Gary Bledsoe, a local attorney and head of the state chapter of the NAACP, said he's received numerous complaints about police action on Sixth Street, has defended more than one aggrieved citizen against criminal charges, and is currently representing another in a civil rights suit against the city and the APD. Bledsoe adds that his knowledge of such cases "goes well beyond professional experience."
In Bledsoe's most recent personal brush with the Sixth Street police detail, in the early morning hours of Dec. 31, police shocked Bledsoe's stepson, Mehcad Brooks, with a stun gun, and charged him with resisting arrest, after Brooks allegedly refused to comply with an officer's order to move from the street and onto the curb. According to an affidavit filed by Officer Joshua Marquez, Brooks violently resisted the officer's polite requests to move, forcing Marquez to deliver a jolt from his stun gun and take Brooks to jail. (In the process, Marquez also shocked several other officers with his Taser-brand stun gun.) As in the higher-profile cases, Brooks' account of the confrontation contradicts the official story: According to Bledsoe, Brooks was standing next to the curb talking on his cell phone when police approached, and as a result had no idea that the officer had asked him to move. When Brooks didn't immediately reply, Marquez and several other officers became physically aggressive, pushed Brooks onto the curb, stunned him twice with a Taser, and then pepper-sprayed him before arresting him. At press time, Escamilla's office had yet to file a case against Brooks. (Any case will likely not be helped by the fact that in January, Marquez was suspended for 30-days for improper use of his police baton in a separate, unrelated incident.)
None of the Sixth Street stories surprise Guillermo Gonzalez, who defended Latisha McFadden, now 29 years old, against a charge of assaulting a police officer during a parking lot scuffle in July 2000. (Bledsoe is currently representing McFadden in a civil rights suit alleging excessive use of force.) McFadden's story sounds familiar: Five officers attacked, pepper-sprayed, tackled, and then hog-tied her after she ignored an officer's request to stop yelling at an acquaintance as she walked to her car from Sixth Street. Released from jail, McFadden was treated for bruises and a sprained ankle. She filed a complaint with APD's Internal Affairs division, but the detectives cleared the officers of wrongdoing. Yet a Travis Co. jury subsequently acquitted McFadden of the assault charge, and Gonzalez thinks the jurors simply didn't buy the police version of events or their conflicting testimony. "When you lined them all up, they all had different stories," Gonzalez said. "It was actually preposterous."
Especially revealing, he added, was that prior to trial prosecutors offered McFadden a plea deal that would've reduced the felony charge with a potential sentence of up to 10 years in prison to misdemeanor probation. The prosecutorial ambivalence reinforced his perception that there are policing problems Downtown. "I've got work every week telling me that," Gonzalez says. "[The police] think the area can go up in flames any minute, so they have zero tolerance and they throw the biggest and baddest guys out there and say, 'Don't take any shit.' ... They're hair-trigger; they're looking for something to happen."
While their criticism might sound predictable, it's not only defendant advocates who are skeptical of police procedures Downtown. Although they prefer to stay off the record, more than one experienced APD officer agrees that there's a problem with what they see as the police siege mentality. "They're making 'attitude' arrests," said one. "The law is that you have to be breaking the law and saying no to an officer is not against the law." The officers appear to be overusing the "failure to obey a lawful order" to predicate an arrest. "And that's the key," he concluded. "[The orders are often] not lawful. They are stretching it to make it look like a lawful order."
Alcohol and Testosterone?
Austin Police Association President Mike Sheffield agrees that there's a problem with policing Sixth Street but he doesn't see the same problem. "We've created an environment that is alcohol-driven," he said. "The number of officers down there for the situation is perilously low. You have officers thrown into a situation where there are two or three officers for [every] 30 to 40 people. When a fight breaks out, these officers are not in a position to stand by and let somebody get hurt." There are a total of 103 full-time positions including the area's command staff, patrol officers, detectives, street response team, and mounted patrol that are allotted to the APD's Downtown Area Command to cover not only Sixth Street, but the entire area from I-35 west to Lamar Boulevard, and 29th and Dean Keeton streets south to Town Lake. Currently, only 92 of those positions are permanently filled.
The department maintains an 80% staffing level at all times, says Assistant Chief Dahlstrom, and makes up the difference with overtime assignments, picked up by officers assigned to duties throughout the city. (For big events, like Mardi Gras, Halloween, or the Texas Relays, Dahlstrom says the command is always staffed at 100%.) "It's a problem that ... simply needs more officers thrown at it," Sheffield said. Dahlstrom says he isn't sure that the area needs more officers, but admits that any vacancies add stress. Sheffield insists that the mix of alcohol, large crowds, and few officers is a recipe for trouble: "Put a few officers into the middle of a group quarked on alcohol where alcohol is the main force and again, we all know what happens, a situation like that lends itself to violence."
But on occasion it appears that neither alcohol nor numbers are a factor in police aggressiveness. "I don't drink, I don't smoke, I don't eat meat or drink tap water," says Trevor Goodchild. Nonetheless, on Feb. 6, 22-year-old Goodchild was busted on the seemingly all-purpose charge of "resisting arrest," in an encounter with cops outside the old, burned-out Black Cat Lounge. Goodchild says he was sitting on the sidewalk, against the building's boarded-up facade, playing his guitar around 9pm when four cops approached and told him to stop playing his guitar or face arrest. "I said, 'You can't take me to jail for playing guitar.' The one cop turned to me and said, 'I bet I can.'" Goodchild says that without any verbal order, like "Put the guitar down," the cops snatched his instrument, and when he "reflexively" reached for it, they tackled him and drive-shocked him nine times with a stun gun including several jolts administered after he was handcuffed, a clear violation of the department's stun-gun policy. The shocks triggered his pre-existing seizure disorder and left him with a series of double puncture marks on his back and on the back of his arms. "I was crying; I felt like I'd gotten mugged," he said. "I was never angry, I was never violent. I was just confused, and I didn't know what was going on."
Goodchild has complaints pending with the city's Office of the Police Monitor and with APD Internal Affairs and is preparing to defend himself on the resisting charge; he insists that it was the officers' actions which he calls "provocative" that determined the course of the encounter.
A majority of the department's use-of-force reports, which officers are required to complete any time a person makes "consistent and repetitive" complaints of pain after an encounter with police, come from the city's Downtown district, says Dahlstrom as do a large number of citizen complaints about the police use of force. Neither circumstance is surprising in the unique environment of Sixth Street, he says. For example, unlike other parts of the city where police patrol larger areas by cars, the police presence Downtown is concentrated and patrolled on foot or on bike. As a result, officers are able to respond immediately to altercations a common occurrence on the street, especially after the bars close. "On [regular] patrol, if you get a [fight] call, by the time you get there, everyone is already worn out and the officers most likely won't have to get involved," he says. "On Sixth Street, you're there within 30 seconds of when the fight started, and they still have a lot of vinegar in them." Indeed, during the single year that Dahlstrom spent as a sergeant on Sixth Street, he was involved in as many fights as he had been over the course of 17 years on other patrols.
Dahlstrom says the department is focused on verbal "de-escalation" training and, contrary to certain perceptions, Sixth Street officers typically use a softer hand, giving ample warning before taking action to enforce various laws including city ordinances, like those related to noise or to sitting on the sidewalk. Mayor Wynn agrees, and adds that according to police statistics, Austin's Downtown is the safest area in the city. "I really do think it is a matter of perception and the individual spot that one comes from," he said. "I go down there, not as the mayor, [and] I see a lot of leniency going on, honestly." Wynn also believes that it is the size of the crowds that influences police decisions. The police "are so outnumbered that anything starting to brew, they try to nip it in the bud," he said. "That's where the complaints arise or where people's perceptions [come from]."
Open With Words
But many visitors who frequent the street insist the problem isn't simply one of perception. On the contrary, they say, there is a yawning disconnection between the users and the patrollers of the street, exacerbated by the large number of young officers assigned to the police it. Jim Harrington, executive director of the Texas Civil Rights Project, says the high-energy and often rambunctious entertainment district is the kind of "place where, in my view ... you should have your veteran officers well-trained and more mellow who know how to roll with it and not start fights." According to the APD, the 92 officers assigned to Downtown range in experience between two and nearly 30 years but most of the more veteran officers are assigned duties other than patrol. And the largest single group of Downtown patrol officers 25 has four years of experience with APD.
Length of tenure is not an issue, counters Dahlstrom. The department does not assign rookies Downtown, he says. "We're not going to train a rookie in those crowds." Still, he notes that overall APD is a young department. "I'm not sure how we compare to others, but we are ... very young. But every month that goes by, we get a little more senior," he says. "I'll take a four-year officer any day of the week. Seriously, four-year officers are good officers."
But they may not have the level of experience it takes to maintain a consistent calm in an environment that is often chaotic. With the recent introduction of stun guns, which nearly every patrol officer now carries, there is anecdotal evidence that the level of force used to manage crowds on Sixth Street has actually risen. Police Monitor Ashton Cumberbatch says the office's statistician resigned last year and the position hasn't yet been filled, so there is no set of hard data for 2004. But he estimates that the office received "a little over 400 complaints" in 2004, roughly the same as in the year before, with no "significant" rise in complaints in any of the city's police sectors. He is also "certain that ... Taser use is up; therefore, the number of complaints about Tasers will be up."
Cumberbatch has some concerns about how the stun guns are being used, and his office has been working with the APD as the department reviews the policies governing their use. Goodchild, Bledsoe, and others believe that the introduction of the stun guns has allowed Sixth Street police often to bypass verbal communication altogether and to rely on their new weapon to maintain control. Bledsoe notes that nationally, stun gun use has come under fire. (See "Tasers and the APD" below) "Tasers actually have been shown recently to be considered deadly force," said Bledsoe. "[I've] seen cases where [the police] use them much too quickly. ... It does mean a different kind of force. I think it is excessive force." Cumberbatch says he doesn't know if the new weapons have caused any increase in force, especially Downtown, but he wants to find out. "Sometimes you get so infatuated with a new toy that you forget that there are other ways to control." Cumberbatch recalls that not long ago he heard one APD commander "remind an officer that Tasers are not the first line; that begins with the mouth."
Like many police across the country, Dahlstrom says that he thinks stun guns have actually helped to reduce the number of injuries to both officers and citizens. Stun guns are "much safer than hand-to-hand" confrontations, he said, and the mere threat of a stun-gun is usually all it takes for an officer to "gain compliance."
Nurturing vs. Confrontation
It is precisely the police focus on "gaining compliance" that concerns some Downtown stakeholders, who argue that a siege mentality or establishing dominance translates to overzealous, zero-tolerance enforcement on Sixth Street, and cops losing sight of the bigger picture of how their actions, for example, affect the city's reputation and therefore its economics. "They treat [Sixth Street] as an issue, as a problem to be dealt with as opposed to an asset to be managed, and their decisions flow from that mindset," said Jerry Creagh, a longtime Sixth Street property owner and associate with Southwest Strategies Group. "They are aggressive with people who only need a gentle nudge." Creagh and many others point to the policing of New Orleans' French Quarter as an example of officers who appear to understand the bigger picture and are "trying to make sure [that visitors] have a good, safe time."
NOPD Capt. Marlon Defillo says that is the mission of the police in New Orleans' Eighth District, who are assigned to patrol the eight-block-long Bourbon Street Promenade. The NOPD stresses the importance of strong relationships with the Quarter's residents and businesses, and maintains a diverse contingent of between eight and 10 patrol and two or three mounted officers that is a mix of old and young officers. "The older officers bring a little balance," Defillo says. Beyond that, the officers are trained to relax. "One of the biggest things is to have a high tolerance," he said. "We recognize that people come to the French Quarter to drink alcohol and that occasionally they become rowdy. If they don't pose a threat to anyone, we let it go. There is a lot of discretion and we have a lot of confidence in [our officers] to do the job." Defillo said that the Quarter cops generally take action only when a person is "continuously trying to aggravate," or is so intoxicated that they "are a threat to themselves and others." And when that happens, he said the No. 1 rule is to "extract" the problem. "We take the problem away from the crowd," he said. "In New Orleans, we find that if you have [to deal with problems within a large crowd], then it exacerbates the problem."
There are undeniable differences between Bourbon Street and Sixth Street notably, the Quarter is regularly packed with a wide demographic variety of tourists, while Sixth Street, in the main, is populated by young college students. But many people in Austin, including several veteran APD officers, think that city officials and APD administrators could learn a thing or two from the way the Bourbon Street officers approach their task. In Austin, police "want to make Sixth Street comply with the rest of the city, instead of approaching it as a unique situation," observes one officer. "We have to change the tolerance from church to Sixth Street. That's why [people] go there, to tune out."
The competing mentalities cause problems that can only be fixed by clear direction from the APD's Fifth Floor administration. "We've got to take the department's general orders and tweak [them] to say that, in this district, there is a looser expectation for the enforcement of misdemeanors," said one officer. "Now, if [the officers see something and] don't take action, it's dereliction of duty. They're scared of the Fifth Floor in general, so they've got to see something from the Fifth Floor" that tells them what to do. However it is accomplished, Creagh said it's clear that something must change. "Police need to understand that what is good for the visitors and the patrons is good for Downtown, and what is good for Downtown is good for all of Austin," he said. "We need to take care of those patrons; we need nurturing instead of confrontational attitudes. If we treated the high tech industry the way we treat the visitor industry, we never would've had a high tech industry."
A Better Way
Despite the disagreements about the experience of officers on Sixth Street, the use of force, and the general suspicion that many of the officers appear unable to see how their actions may contribute to the larger perceptions of the city, there's one thing that almost everyone does agree on: the need for specialized training in policing the city's entertainment districts. Yet while everyone recognizes that Sixth Street is a unique policing environment, there is no correspondingly unique training at the academy. "It is a specialized mission with zero formal training," says Sheffield. "Officers down there find a way, they develop their own techniques, and that's not to say that's wrong at all," he says. But it doesn't make for standardized or consistent practice.
"There is no training to learn how to do" the job, echoes union Vice-President Wuthipong (aka "Tank") Tantaksinanukij, and that forces Downtown officers to learn "off one another." For example, he said that when he picks up overtime on Sixth and finds himself working with officers that are green to the environment, he makes an effort to pass on advice. "I tell them, rule number one: Do not run to a fight" because when an officer runs, people follow, which can lead to a situation that is more difficult to control. Although officers do receive "crowd management" training at the academy, the focus is on "riot situations," Sheffield says. "There is no training unique to Sixth Street the entertainment districts and maybe that's something that needs developing."
Dahlstrom says he doesn't see that there is a need for such training "at this point" because the department does a lot of on-the-job training and is focused, citywide, on "communication [and] de-escalation training," which he believes are equally applicable to Sixth Street. Dahlstrom also notes that the department has rolled out several new programs that are unique to the Downtown command, including the so-called "meet-and-greet" program through which the department tracks the daily interaction between officers and business owners and is now requiring every Downtown cop to be certified as a mental health officer. He says 80% of the DTAC officers have completed that training.
Nonetheless, council member Brewster McCracken likes the idea of adding entertainment-district-policing training. "About a year ago, when Jason Patric was arrested, right on the heels of the Ozomatli incident, there were some conversations about how to take a more nuanced approach [to policing Downtown's entertainment areas], and that it isn't so great to be arresting our tourists." He's not sure that's yet happened. "I think the idea [of specialized training] is outstanding," he said. "Almost all of our use-of-force complaints come from our entertainment district. You'd think, clearly, there's got to be a better way to do this."