Austin on Forefront of Addressing Excessive Force Used by Police During Protests

Armed APD officers confront protestors on I-35 near 8th St., May 30, 2020 (Photo by Jana Birchum)

Austin continues to address the excessive force used by police during 2020's Black Lives Matter protests more pointedly than any other American city. On Tuesday, Feb. 22, Travis County District Attorney José Garza unsealed 20 indictments issued by a grand jury against 19 Austin police officers, each charged with two counts of aggravated assault with a deadly weapon (one for raising their weapons, another for firing; both are considered assault under the Texas law). That charge, when committed by an on-duty officer, is a first-degree felony punishable by five to 99 years in prison and a possible $10,000 fine. As of press time, all 19 of the indicted officers have been booked and released; most had their bail set at $1, but some at $5,000.

The weapon used in 19 of these cases was a shotgun modified to shoot mesh bags filled with lead-shot pellets – crowd control munitions often referred to as "bean bag rounds." (The 20th case involved a 40mm launcher; it's not known whether that was being used for crowd control, to shoot large foam projectiles, or if it refers to the firing of tear gas canisters.) Officers shot dozens of people with the rounds during the large, furious demonstrations that surrounded Austin Police Department headquarters on Eighth Street and spread onto the adjoining I-35 bridge in the days following the killing of George Floyd. Those most badly hurt were shot in the head or face. Two nearly died. Others suffered injuries they will be dealing with for the rest of their lives. The indictments identify 10 Eighth Street survivors as victims in the alleged assaults.

The 19 indicted officers have been placed on paid administrative leave, which is standard practice at APD, and will perform desk jobs and not be called as witnesses in any pending trial until the criminal process concludes. It is unclear if any of the indicted officers remain under investigation by APD's Internal Affairs division. In Decem­ber 2020, former APD Chief Brian Manley disciplined 11 officers for their conduct during the protests that summer, out of 48 complaints IA investigated. The Office of Police Oversight referred more than 200 external complaints to APD for internal investigation; only 27 of those were investigated. Another 21 complaints generated from within APD were investigated.

The names of those 11 officers have never been made public; neither has information on what kind of discipline they received, how many remain on the force, and what duty they are performing. At least two of them (Eric Heim and Jeffrey Teng) are among the indicted. Accord­ing to defense attorneys Ken Ervin and Doug O'Connell (who are representing eight of the officers indicted last week, as well as other APD officers facing criminal charges in separate incidents), Heim is currently working as a background investigator and Teng is assigned to patrol. The attorneys also say that all of their clients have been cleared of wrongdoing by IA.

Just Following Orders

O'Connell and Ervin announced at a news conference Monday, Feb. 21, that they are representing Sergeants Josh Blake, Stan Vick, and Brett Tableriou; Corporals Ed Boudreau and Christopher Irwin; and senior Officers Justin Berry, Heim, and Teng. The officers have between five and 20 years of service at the department. Five are supervisors who may not have actually fired on protesters but instead ordered subordinates to do so; they can be held equally responsible for the shootings under Texas' "law of parties."

The same is true of officers who may have raised or even fired their weapons but have not been confirmed to have fired a round that led to an injury. One such case may be the shooting of Christen Warkoc­zewski, a wildlife biologist who demonstrated on I-35 on May 31, 2020. War­koc­zewski has said that she was retreating from officers when a group of them fired upon her; she was struck in the face and ankle. Nine of the indictments stem from this shooting, including Berry, who came within 1 point of unseating state Rep. Vikki Goodwin, D-Austin, in November 2020 and who is currently running in the GOP primary for House District 19. The round that hit Warkoczewski's face penetrated the layer of skin near the hinge of her jaw. She has experienced pain and anxiety ever since.

O'Connell said the officers already have their first court dates set. He and Ervin will seek to schedule jury trials as soon as possible, though those may not commence for at least a year due to the COVID-19 backlog of pending criminal trials. The attorneys have already begun reviewing evidence the D.A. used to secure the indictments, including hours of body-worn camera video footage that has never been made available to the public, even though APD has a policy that should have led to its release 10 days after the shootings. Asked by the Chronicle if the attorneys would like the body-cam footage to be seen by the public, Ervin paused, then gave a nonanswer: "We want fair trials for our clients."

The defense attorneys were careful to note that the officers who shot protesters were just following orders coming from the top of the department, naming former Chief Brian Manley and current Chief Joseph Chacon as two of the responsible parties. "These aren't a few rogue officers doing what they wanted to do," Ervin told reporters Monday. "The actions they took on the bridge deploying the beanbags were in full view of the chain of command."

Advocate Kathy Mitchell of Just Liberty doesn't find this compelling. "I doubt that Chief Chacon ordered any officer to shoot people in the head," she said. "Did Chacon let them go out armed with bean bag[s]? Yes. Did he stand over them to determine how they should use their discretion? I don't imagine he did. I'm sure they were not directed to shoot people who were on the other side of the protests, standing quietly. I'm sure they were not directed to shoot medics trying to bring injured people to ambulances." That's a reference to the case of Maredith Drake, who was helping to carry an unconscious Justin Howell to medics when she was hit in the hand by a beanbag round allegedly fired by Chance Bretches, an APD officer who is also under indictment (since January 2021) for assault in a 2019 incident, but as of press time has yet to be indicted in connection with Eighth Street shootings. The D.A. also continues to investigate the shootings of protesters Tyree Talley and Modesto Rodriguez. The officers associated with those cases have not been identified.

Regarding O'Connell's claim that IA has cleared all of his clients, Mitchell said if that is true, it's an indictment of Austin's police oversight system. "We have failed to find another way to hold officers accountable," she said. "At this point, Garza is the last guard rail against officers doing the exact same thing again." She added that the vast majority of the department's 1,800 available officers served during the protests and there is no magic number of officers who should or shouldn't be indicted: "It is absolutely not wrong to indict a lot of officers if a lot of officers did things they should not have done, all at once. This was a huge operation."

Bystanders or Rioters?

News of the indictments was preceded by the City Council's vote to approve $10 million to settle civil cases brought by Howell (who will receive $8 million) and Anthony Evans ($2 million). Evans was also shot in the jaw and endured multiple surgeries to repair the damage. Howell spent weeks in the ICU with a severe brain injury after being shot in the side of the head, allegedly by Teng; he continues to deal with issues related to the shooting. "While I wish this never happened," Howell told the Chronicle, "I'm grateful that the city of Austin has taken responsibility for what happened to me and deeply relieved that I will have the resources I need to rebuild and maintain my health. A big thank you to city legal [the Law Department] and City Council."

Howell and Evans sustained some of the most grievous injuries of the Eighth Street survivors, but there are many more settlements to come in at least a dozen other lawsuits by demonstrators wounded at the protests. Some of the most seriously injured, such as 16-year-old Brad Levi Ayala, have yet to file suit.

In a news conference discussing the indictments on Thursday, Feb. 18, Garza said the experiences of Warkoczewski, Evans, and Howell were similar to others the D.A.'s Office investigated. "We believe many protesters injured by law enforcement officers were innocent bystanders," he told reporters. "We also believe that the overwhelming majority of victims in the incidents that were investigated suffered serious and lasting injuries."

One hour after the D.A.'s remarks, Chacon offered his own thoughts. Speaking with the entire executive staff of APD behind him, along with City Manager Spencer Cronk and Assistant City Manager Rey Arellano, who oversees the city's public safety departments, Chacon emphasized the chaos of the demonstrations and the danger felt by officers confronting them. "The size, scope, and tenor of the crowds was underestimated by management," he said. "Officers were prepared for hundreds. Instead, they faced thousands." Chacon argued that at times the demonstrators were riotous, hurling rocks, frozen water bottles, and fireworks at officers. He went on to say, "I am not aware of any conduct that, given the circumstances that officers were working in, would rise to the level of a criminal violation by these officers."

Chacon's statement was amplified by O'Connell, who played up the characterization of the peaceful-though-rowdy protests as a riot, complete with handout photos of broken police car windows and insulting graffiti. This goes against the repeated public testimony by survivors and their families that, for example, Ayala was observing the demonstrations from a distance; he was shot in the forehead with a lead-pellet round as he stood on the Eastside hill overlooking the Eighth Street bridge, with his hands in his pockets. The round, allegedly fired by Officer Nicholas Gebhart, penetrated his skull. He was rushed to the hospital where he underwent a seven-hour surgery as his family prayed in the waiting room, not sure whether he would survive.

All the Way to the Top

The indictments have sent tsunami-level shock waves through the state's law enforcement establishment. At his Monday news conference, O'Connell said the indicted officers he represents are horrified and demoralized. When the Chronicle called Austin Police Association President Ken Casa­day to discuss the news, he said it felt like the department and its officers were living through "attempted political assassination." Casaday believes that this is the largest number of indictments brought against any American city's police force at one time in history. It's the largest number yet stemming from the 2020 BLM protests across the nation.

Ken Ervin (l) and Doug O'Connell, defense attorneys for eight of the indicted APD officers (Photo by Jana Birchum)

In his comments, Casaday emphasized the management failures during the weekend of protest that put officers in a difficult position – which Chacon, who was part of that management team, has tacitly endorsed. Among these, Casaday cited Manley's refusal to change tactics between Friday and Saturday and the theory seized upon by APA that the lead pellet rounds had exceeded their effective use date and perhaps become defective in storage, making them more dangerous. If management had acted more responsively, Casaday said, fewer people might have been injured.

"I blame this situation on not using CS gas," Casaday said, referring to the tear gas used by law enforcement as a crowd control tool. "If we had done that we never would have had this problem. Manley was afraid of what that looked like." Eventually, Man­ley did authorize the deployment of CS gas; the chemical agent was used late in the day, May 31, to disperse protesters who had blocked I-35. Council, led by Casar, almost immediately voted to ban the use of tear gas in future crowd control efforts.

Casaday's desire that prosecutors look up the APD chain of command for potential criminal misconduct may still be fulfilled. At the D.A.'s press conference, Dexter Gilford, who leads the office's Civil Rights Unit, said, "I want to be clear that our investigation into these matters continues. As our inquiries evolve, we will continue [to update the community]."

Casaday also highlighted the statements issued by Chacon and Cronk, in which both expressed disappointment with the indictments. "We wish that there had been no injuries during the May 2020 protests, and the City is taking responsibility to compensate those who were injured due to actions of police officers," Cronk's statement begins. "However, any indictments will heighten the anxiety of our officers and will impact the staffing shortages we are experiencing. We are disappointed to be in this position, and we do not believe that criminal indictments of the officers working under very difficult circumstances is the correct outcome."

Cronk's statement was met with disgust by justice advocates. A Feb. 18 letter from the Texas ACLU, Just Liberty, Austin Jus­tice Coalition, and seven more groups insisted that Cronk publicly apologize to Garza and the community for sticking his nose in the issue. "The notion that our City Manager, who holds an unelected staff position that can be terminated by Council at any time, would step out in this way to protest the actions of our locally elected district attorney in criminal cases related to police violence is outrageous," the groups wrote. "Does it even matter how officers are trained if they're given impunity for violence by those charged with holding them accountable?"

The groups also demanded that Cronk release all body-cam video from the protests, refrain from interfering further in the process, empower the Office of Police Oversight to perform more oversight over APD, and commit to several other measures. But even if Cronk were to accede to the demands – which seems unlikely – there's little doubt that whatever goodwill he had managed to recover among justice advocates through the city's "reimagining public safety" process has evaporated.

At his Monday press conference, O'Con­nell endorsed Cronk's implied view that civil settlements and not criminal charges are the right tools to address APD's violence and make survivors whole. Does that mean that the conduct of the officer who shot Howell was so bad that it merited an $8 million settlement – more than twice the previous record for a single APD shooting, which in that case was fatal – but was not potentially a crime? When asked this, a city spokesperson responded: "The Manager stands by his statement. Neither he nor the Chief are aware of any individual conduct that rose to the level of a criminal violation." While the city itself is a defendant in many suits filed by Eighth Street survivors, it is not facing criminal charges (which rarely happens but is possible) and is not under any obligation to defend the actions of its employees at criminal trial.

Reflecting on the settlements and the city's responses, attorney Jeff Edwards, who represents many protesters including Howell and Evans, told us that APD must respond by changing its policies surrounding use of force – from top to bottom of the chain of command. "What happened at the protests was as bad as it gets," Edwards said. "Not only did numerous officers attack innocent people in crowds with deadly weapons, the very highest level of the department knew what was happening and did not stop it. If APD's leadership simply acknowledged this, then maybe the department could repair its image and improve its policing. But that, unfortunately, is not something a settlement can achieve. That comes from within."