With Unrest a Possibility, Has APD Learned Its Lessons?

APD during protests earlier this summer (Photo by John Anderson)

Although the polls were relatively quiet on Election Day, members of City Council's Public Safety Committee have been bracing for potential unrest following a tightly contested and uncertain outcome in the presidential election.

In a letter to Austin police Chief Brian Manley, the four PSC members requested a written response to how the department would respond to "activity involving free speech and free assembly" on Election Day and in the aftermath once votes are counted – or are in the process of being counted. It's easy to envision scenarios where mass demonstrations spring up in response to either Joe Biden or Donald Trump conceding victory, but perhaps a more troubling scenario is the one that appears to be unfolding, in which there is no clear or likely winner for at least a couple of days.

It's amid that potential uncertainty that PSC Chair Jimmy Flannigan, Vice Chair Greg Casar, and the committee's other two members, Natasha Harper-Madison and Delia Garza, want the Austin Police Department to tell the public how they intend to ensure the safety of demonstrators and officers.

A portion of the letter asks how APD is preparing to respond to the potential presence of extremists looking to provoke violence in Austin. Several recent incidents suggest that APD has not taken seriously the threat posed by white nationalist groups. In June, APD detained a far-right extremist who admitted to being involved in the burning of Minneapolis Police Depart­ment's Third Precinct on May 28. Although the person was heavily armed, he was released by APD; in October, he was arrested in a different city, according to a filing from the U.S. Department of Justice.

More recently, the way APD officers interacted with or ignored Proud Boys has been a cause for concern, ultimately resulting in complaints to the Office of Police Oversight that have been forwarded to APD leadership for formal investigation. At an Oct. 17 women's march, protesters reported harassment and assault from Proud Boys counterprotesters.

One attendee, Anna Nguyen, wrote to the Chronicle about an interaction with an APD officer that left her disturbed. As she was leaving the march, she passed an officer sitting in his patrol vehicle and gave him a thumbs-up as a way to thank him for being there. The officer responded with an "OK" symbol – a white power symbol popular among white nationalists because it allows room for plausible deniability. "What is more dangerous than a militarized police department is a militarized police department that harbors brazen white supremacist officers," Nguyen wrote to us. Nguyen's complaint has been referred to APD leadership for internal investigation.

APD has launched an internal investigation into another incident involving its officers and members of the Proud Boys. On Nov. 1, at a rally organized by the Wind Therapy Freedom Riders, Fox 7 reporter Shannon Ryan captured a photo of officers taking a picture with WTFers and Proud Boys, who were flashing the same white power symbol. The photo includes Repub­lican candidates running for office, and some of the demonstrators were holding signs attacking Casar and Mayor Steve Adler. APD policy prohibits uniformed officers from appearing to endorse or support a political cause or candidate, so it appears that is what internal affairs is investigating. In a Facebook post, WTF CEO Luis Rodriguez said the Proud Boys members were not invited to the rally and "jumped into the picture unbeknownst to us."

But the Proud Boys connection caused concern on social media. Beyond any departmental policy violation, Flannigan told us, it's understandable that people would question the judgment of officers who would agree to take such a photo. "There's a valid question about judgment," he said, "be it judgment in responding to 911 calls or keeping the peace and protecting the First Amendment. Those questions about judgment inform these larger debates about discipline, transparency, and oversight. It's especially important when talking about the part of city government that has the power to take away one's civil rights."

Laced throughout the PSC letter are references to the way officers mishandled the response to demonstrations in June following the police killing of George Floyd. At those protest events, at least two people were seriously injured: 20-year-old Justin Howell and 16-year-old Brad Ayala. As a result, APD opened internal investigations into 10 protest-related critical incidents. Those investigations are still ongoing, but seven officers involved have been placed on paid administrative leave, as is standard practice when investigations into alleged misconduct occur.

The letter can also be read as a way for Council to remind the people of Austin that they've taken some action to prevent those kinds of scenes from recurring during election-related demonstrations. In June, following the injuries of Howell, Ayala, and others, Council unanimously voted on a resolution banning the use of lead-pellet rounds, which caused the most severe injuries, against crowds. The resolution also banned the use of tear gas and chokeholds, and asked the chief to implement a "duty to intervene" policy that would require officers to step in if they see a fellow officer violating department policy.

But in Texas, police chiefs have certain legal authorities that mayors and city councils cannot regulate – including what kind of crowd control tactics officers should use. Following the June protest incidents, Manley said "less lethal" rounds would no longer be used on crowds, but Austin police officers have not yet been confronted with demonstrations that match the size or intensity of those that gripped the city in early June.

In a memo responding to the PSC letter, Manley says officers have made "positive, intentional changes that make it a safer Austin for all communities" and that since June, the department has "made improvements in various areas including; policy, procedures, tools, training and tactics." Citing a need to protect security plans, Manley does not elaborate on what those plans' changes could be – or if officers have been instructed to not use lead-pellet rounds on crowds – but he says the plan is "comprehensive and emphasizes the importance of protecting those who are exercising their right to vote along with protecting those who are exercising their rights to assemble and free speech, regardless of political affiliation."

A KUT/The Trace investigation found that despite the Council resolution and Manley's commitment to abandon use of lead-pellet rounds against crowds, the department ordered 5,000 of the rounds in August. Any post-election turmoil that arises in the streets of Austin this week will be the first major test to see if APD leadership has actually changed the way it responds to mass demonstrations – or if the chief's actions will belie his words.