D.A. Indicts 19 Austin Police for Assault in 2020 BLM Protest Response

APD officers stand guard on I-35 after protesters took over the highway on May 30, 2020. (Photo by John Anderson)

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 Thursday, Travis County District Attorney José Garza announced that an unspecified number of Austin police officers would be indicted in coming days for seriously injuring protesters over the weekend of May 30-31, 2020. Police union president Ken Casaday has put the number at 19; the Associated Press has reported that the charges will be aggravated assault with a deadly weapon.

The weapon used in these cases was a shotgun modified to shoot mesh bags filled with lead shot - crowd control munitions often referred to as bean bag rounds. 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.

As of this writing, the identities of the indicted officers are not known, as state law requires they be kept confidential until they are arrested and booked. The D.A.'s office had named 21 officers as being under investigation, which likely includes the majority of those indicted. The Statesman has reported that throughout the day Thursday, officers were being told how and where to turn themselves in.

One name that has been confirmed is Justin Berry, who came within 1.5 points of unseating state Rep. Vikki Goodwin, D-Austin, in November 2020 and who is currently running in the Republican primary for House District 19. Neither he nor his lawyer, Ken Ervin, have yet commented publicly.

As of this writing (Friday, Feb. 18), none of the officers had been arrested, according to Casaday. All 19 will be placed on paid administrative leave, which is standard practice at APD, and perform desk jobs until the criminal process concludes. At that point, APD Chief Joseph Chacon will determine if any internal policy violations occurred and issue disciplinary action as warranted.

Berry is one of several officers investigated in the shooting of Christen Warkoczewski, a wildlife biologist who demonstrated on the I-35 Eighth Street bridge on May 31, 2020. She has said that she was retreating from officers when she was shot in the face and ankle, with one of the rounds penetrating the layer of skin near the hinge of her jaw. She has experienced pain and anxiety ever since.

News of the indictments was preceded by the City Council’s vote to approve $10 million to settle civil cases brought by two other protesters, Justin Howell (who will receive $8 million) and Anthony Evans ($2 million). Evans was shot in the jaw and endured multiple, painful 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; 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 more 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 4 o’clock news conference discussing the indictments, Garza said Warkoczewski’s experience was similar to the 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.”

Police Chief Joseph Chacon speaks at Feb. 17 press conference on the indictments (Image via APD/Facebook)

One hour after the DA’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.”

Presumably, that would include the case of Ayala, who was shot in the forehead with a lead-pellet round as he stood observing the demonstration from the Eastside hillside overlooking the Eighth Street bridge, with his hands in his pockets. The round, allegedly fired by Officer Nicholas Gebhart, penetrated Ayala’s 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.

The indictments have sent tsunami-level shockwaves through the state’s law enforcement establishment. When the Chronicle called Casaday to discuss the news, the Austin Police Association president said it felt like the department and its officers were living through “attempted political assassination.” Casaday believes that the indictments represent the largest number brought against any American city’s police force at one time in history. It is the largest number yet stemming from the 2020 Black Lives Matter protests across the nation.

In the hours before the announcement of the indictments, Casaday and Charley Wilkinson, who runs the Combined Law Enforcement Associations of Texas, conducted their own news conference – surely meant to preempt the news they knew was coming later in the day. Casaday focused on the individual officers he represents, saying that they are being scapegoated by Austin officials. “D.A. Garza ran on a platform to indict officers and has not missed the opportunity to ruin lives and careers simply to fulfill a campaign promise,” he said. “These officers were doing what they were told to do with the equipment that the city of Austin provided them.”

Casaday and Wilkinson also argued, without evidence, that Garza has timed the announcement of the indictments to coincide with this year's primary elections - targeting Berry and boosting former Council Member Greg Casar. “The district attorney is using this to drive voters to the polls,” Casaday said. “He’s driving people to vote for a far-left radical ex-city councilman who’s running for Congress…. It should not shock anyone that Jose Garza and Greg Casar are two peas in a pod.”

Wilkinson also went after Garza, calling him a “professional liar” and insinuating, again without evidence, that he is colluding with Casar and others and hiding exculpatory evidence. “If there’s any shred of decency left, stop the announcement of any indictment until after the early voting and runoff process,” he said. Wilkinson also implicitly called on Republican state leaders to once again interfere in the city’s self-governance, saying, “I believe that the will is there for the Legislature to act.”

In our conversation, Casaday emphasized the management failures during the weekend of protest that put officers in a difficult position. From former APD Chief Brian Manley’s refusal to change tactics between Friday and Saturday, to 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 may have been injured.

“I blame this situation on not using CS gas,” Casaday said, referring to the type of 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 protestors who had blocked I-35.

It is possible that these 19 indictments will not be all that arise from the D.A.’s investigation. That could include Casaday’s desire that prosecutors look up the APD chain of command for potential criminal misconduct. At the D.A.'s press conference yesterday, 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 noted the significance of statements issued by Cronk and Chacon following their press conference, in which both city officials expressed their 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."

Chacon echoed Cronk’s sentiment in his statement. “As a department, we asked these officers to work under the most chaotic of circumstances in May 2020, and to make split second decisions to protect all participants.” This is striking in that the city is not itself facing punishment here, and it's under no obligation to provide legal defense to employees accused of criminal conduct when on duty (unlike with civil lawsuits). So in what sense are these indictments not "the correct outcome."

It’s possible that Cronk and Chacon and the Law Department have viewed enough of the evidence – such as body camera footage, which remains the city's property – under review by both prosecutors and defense counsel to be confident that, as Chacon said, nothing rose to the level of a criminal violation. Alternatively, by pointing to the historic settlements authorized yesterday, the two think that making the Eighth Street survivors whole is best done through civil litigation.

Does that mean that the conduct of the officer who shot Justin Howell, whose identity remains unconfirmed, merited an $8 million settlement – more than twice the previous record for a single APD settlement, which in that case involved a homicide – but is 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.”

Regardless, it is clear that police backers view the statements by Cronk and Chacon as powerful and helpful to their cause. While noting that it would be inappropriate for the city manager or chief to be called as witnesses before the grand jury, Casaday said at trial, their testimony attesting to managerial failures within the department – e.g. Manley’s reluctance to deploy CS gas or use of potentially expired lead pellet rounds – “would be powerful testimony that a jury could not ignore.” If any of the 19 officers make it to trial, Casaday said he would call on Cronk, Chacon, city attorneys, and others to testify as witnesses.

Reflecting on the settlements, and the official responses from the city and APD, civil rights attorney Jeff Edwards (who represents many of the protesters, including Howell and Evans), told us that APD must respond by changing its policies surrounding use of force – from the top of the chain of command to the bottom. “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.”