Point Austin: Not So Smart
Jury rules for officer, but APD policy still stings
By Lee Nichols, Fri., Feb. 17, 2006
And that's the problem.
The issue is not that the jury made the right decision, but that O'Leary made the wrong one – he shot pepper spray into a crowd that was essentially nonviolent and barely confrontational – or so they were until he sprayed them.
The lawsuit was filed by four people hit by the spray – Stefan Wray, Mike Hanson, Pam Thompson, and Tim Jones – the first three public access TV regulars, the latter renowned for his local environmental work. They claimed violations of their constitutional rights – their First Amendment right to report the news, and their Fourth Amendment right to be free of excessive force. After two days of evidence, Judge Sam Sparks threw out the First Amendment claims and removed the city as a defendant, leaving just O'Leary on trial for excessive force.
(Full disclosure – I was hit by the spray as well, and filed a complaint with the Office of the Police Monitor on similar grounds; the case went to the Citizen Review Panel, which ruled against me. I did not testify in this case, but my name came up in testimony.)
On the night of March 20, 2003 – the day after the Iraq war began – protesters were ending a long day of speaking out against the death our nation was raining down upon the Middle East. Their actions were, it should be plainly stated, completely illegal – they shut down the intersection of 24th and Guadalupe, then moved to 11th Street in front of the Capitol, and finally headed down Congress Avenue to occupy the bridge. They had no parade permits for any of these events. (See our original report in the issue March 28, 2003.)
Yet the overall police response was shockingly wise. Nothing stirs passions like a war, and angry protests were inevitable. APD smartly took a lenient approach; simply shadowing and even protecting the protesters, letting things run their course and allowing the anger to vent. Several people, including myself, actually thanked the cops for their restraint.
Despite the obvious success of this strategy, a decision was arbitrarily made around sunset that enough was enough, and the bridge had to be cleared. Why? Beats the hell out of me. Assistant city attorney Fred Hawkins (who didn't return my phone call) told the Statesman simply, "People can't really just take over a bridge and just expect to be there all night." He never mentioned why 8pm was the magic hour. Perhaps the police cars would have turned into pumpkins.
So O'Leary arrived with his Crowd Management Team, an APD unit basically military in nature. The team formed a skirmish line, batons in hand, and began advancing toward the crowd. A few folks sat down with the intention of being arrested. They were peacefully loaded up and driven to jail.
The rest of the crowd was told to leave. They didn't exactly turn tail and run, but they didn't resist, either; they just backed away slowly. Apparently, that wasn't fast enough for O'Leary, who swooped in front of the line and sprayed everyone – including people who were obviously reporters with television cameras – with pepper spray.
That goodwill toward the cops? Gone. Suddenly the crowd's anger shifted from George W. Bush to the Austin police. It didn't have to be that way.
The next day, police told the Statesman that a protester got violent and swung at the police with his sign, necessitating the spraying. I was circulating all through the crowd and never saw any such thing. Neither did any of the four plaintiffs. None of their video cameras captured it, nor did the police camera filming the affair. But there's always at least one idiot in every protest, so we'll give O'Leary the benefit of the doubt.
So why wasn't said idiot simply arrested? Why set off a wave of rage by spraying the nonviolent (read 99.99%) portion of the crowd? The plaintiff's attorney, Jim Harrington of the Texas Civil Rights Project, asked O'Leary, "This was not a riot, was it?" No, O'Leary answered.
Well, not until the crowd got sprayed. Then the crowd stampeded, screamed at the cops, and for the first time that night, I suddenly felt like I might be in danger.
The crowd was pushed back toward the bat sculpture in the middle of the Congress/Barton Springs Road intersection, and more blasts of pepper spray came from another officer at the behest of O'Leary. The commander said protesters were beginning to pick up rocks from the island surrounding the sculpture. Again, I missed this, as did the cameras present, but I'll give O'Leary the benefit of the doubt again – indeed, I'm quite certain that after being attacked without provocation, many people decided to arm themselves for a fight. Not necessarily the smartest response, but self-defense is a pretty natural and predictable instinct.
Fortunately, Wray, Thompson, Jones, and I were not seriously injured when the spray hit us in the face. O'Leary says he intentionally sprayed above our heads, which no doubt helped his case. Hanson was less fortunate – he was hit directly in the eyes and incapacitated for a while, and claims he incurred $200 in medical bills, although he didn't present evidence of the bills in court.
Hawkins explained to us indignant citizens of the republic that we should be grateful – it could have been much worse. He had O'Leary testify about the much more powerful weapons that could have been brought into the fray. I hope that argument was the least persuasive upon the jury – I take small comfort in the knowledge that O'Leary's stupid decision could have been spectacularly stupid.
Clearly, the plaintiffs' case had some merit – it took the jury nine hours to reach its verdict. In the end, the parameters set by Sparks made the conclusion inevitable – the jury was instructed that a guilty verdict required a finding that O'Leary had intentionally singled the four plaintiffs out for attack, rather than simply engaging in crowd dispersal.
No, protesters cannot expect to occupy a bridge forever. And ultimately, we are all expected to obey the law. But as our current and failing War on Drugs shows, some methods of law enforcement are smarter than others. Throughout most of March 20, 2003, Austin police were smart. And then one officer – no doubt believing he was simply following policy – blew it.
In our time of unending war, we hear a lot about smart weapons. If attacking a nonviolent demonstration is considered reasonable procedure, then perhaps the police need some smart policy. 
Got something to say on the subject? Send a letter to the editor.
