Prosecutor to drop charges against 17 Austin police officers for force used in 2020 protests

By Tony Plohetski

On December 4, 2023

Prosecutors in Texas are planning a sweeping dismissal of nearly every indictment against Austin police officers for their uses of force during the May 2020 social justice protests. The development marks a striking reversal for Travis County District Attorney José Garza, who pursued the cases launched nearly two years ago.

The decision to drop the charges comes with a request by Garza and Austin Mayor Kirk Watson for the U.S. Department of Justice to investigate the police department’s practices concerning use of force. A letter sent to the justice department seeks a “pattern and practice” investigation focused on the protest response. It is not clear whether federal officials will accept the invitation, expected to be sent this week.

The dismissal of cases against 17 of 21 officers – and to seek the federal inquiry – marks a shift in approach by Garza, whose decision to go forward with charges drew backlash from police supporters and praise from law enforcement reformers and those injured by police. It helped define Garza’s first term in office, which started in 2021, and dramatically intensified polarization between prosecutors and police.

Months after the protests, Garza, a Democrat, resoundingly won a bid to unseat incumbent Margaret Moore on a platform of police accountability, promising to seek indictments against officers who abuse their positions.

“The responsibility of our office is to seek just outcomes,” Garza told the Austin American-Statesman, part of the USA TODAY Network, in a one-on-one interview. “During the two-year investigation into the Austin Police Department and the city of Austin and their conduct during the 2020 protest, it became clear that systemic change is really necessary to make sure this never happens again in our community, and the best way to achieve that outcome, to achieve systemic change, is through an investigation by the Department of Justice.”

In the three years since the protests, the department has churned through two police chiefs, banned as a crowd control method injurious weapons used during the protests and paid $20 million in civil settlements to injured protesters.

“It is clear to me there is still a ways to go,” Garza said.

“This has been a difficult chapter for Austin. I look forward to turning the page,” Watson said in a statement. “These announcements will allow police officers, whose lives were upended by the indictments, to return to their services to our community.”

“And the request for a targeted third-party performance review is meant to enhance transparency for our community and inform future actions as we continue our focus on building respect and trust for our police,” Watson continued.

The names of officers whose cases will go forward were not immediately available Monday. Garza said those cases had “aggravating circumstances,” such as conduct that was flagged by other officers as inappropriate, that “make clear a just outcome requires continued prosecution and the opportunity for our community to weigh in.” The other officers, most of whom have been in non-patrol assignments, will be allowed to return to the street.

The decision comes three weeks after a jury deadlocked in another high-profile case against an Austin police officer, with eight voting to acquit and four voting to convict Officer Christopher Taylor in the April 2020 shooting death of Michael Ramos. During his interview with the Statesman, Garza confirmed publicly for the first time that he will “absolutely” take Taylor to trial again. 

Austin’s social justice movement and use of force charges

The size and intensity of the social justice protests largely caught the Austin Police Department unprepared, and officers turned to what they describe as “less lethal shotguns” to fire projectiles onto the crowd. Police leaders, including former Chief Brian Manley, said at the time that in some instances, protestors hurled rocks, frozen water bottles and other objects at police, prompting officers to use force against them. But many injured, Garza said, showed no aggression toward officers.

The police projectiles seriously hurt several protesters, who have said they were innocent bystanders, leaving some with permanent wounds and brain injuries.

Garza said in the Statesman interview that prolific use of the weapons showed “that those actions were part of a culture within the Austin Police Department.”

“It is really important that we take this opportunity to change that culture,” he said. “It is a culture where it was permissible to fire a deadly weapon over 700 times into crowds of unarmed people.”

After 13 months in office, Garza obtained the indictments of 19 officers on charges that include aggravated assault by a public servant and deadly conduct, a move that sparked national headlines. Prosecutors brought four additional charges in May 2022 and in June.

The indictments pitted law enforcement – some of whom banded together with social media profile pictures to “19 Strong” – against Garza, painting him as anti-police and assailing the indictments as political grandstanding. The matter also saw the recusal of longtime state District Judge Julie Kocurek from four police cases assigned to her court after Garza’s office filed court documents alleging Kocurek expressed concern to a prosecutor that the indictments were “the consequence of a politically motivated campaign on the part of José Garza.”

More recently, two of the cases have unraveled.

In February, Garza dropped charges against Nicholas Gebhart, charged with seriously injuring protester Brad Ayala. Garza said in a statement that new evidence and information “significantly complicated” the ability to prove the case beyond a reasonable doubt, and prosecutors also said Ayala no longer wanted the office to pursue the case.

In October, prosecutors also dropped a case against Rolan Rast but did not provide a reason.

Use of force cases are hard to convict

In recent weeks, as possible trial dates approached, attorneys representing some of the officers told the Statesman that they believe prosecutors would have difficulty obtaining convictions against officers.

Ken Ervin, who represents multiple officers, said he believes jurors will understand that officers used the projectiles in compliance with training and were doing as directed by the highest levels of the department, who were on the scene of the protests.

He also said that based on evidence he has reviewed, ballistics experts in some instances said they had difficulty conclusively determining that a projectile that struck a protester came from a specific officer.

“That is part of the problem here is that these indictments came well before the investigation was complete,” Ervin said.

Steve Toland, who represented Rast and one other officer, said he believes volumes of video will show that officers displayed restraint when using force on protesters and that jurors will empathize with the difficult circumstance.

“The evidence is pretty overwhelming that some people were in the middle of rioting and illegal behavior,” he said.

Garza said he believes prosecutors would have prevailed at trial. 

“The law is quite clear about when law enforcement may use deadly force, and I think the facts are quite clear that the circumstances under which it was used in the protests were unlawful,” Garza said. 

Politically, Garza’s decision comes the week before a deadline for an opponent to file to run against him in the March primary. He currently has no opponent.

There is no timeline for when the justice department will respond to the investigation request. The last time the justice department investigated Austin police was in 2007 at the request of the Texas Civil Rights Project and the Austin NAACP.

Federal officials issued multiple recommendations about how officers report force encounters and the implementation of an “early warning” system to identify potentially troubled officers, but found before closing the investigation in 2011 “no reasonable cause to believe that APD has engaged in a pattern or practice that violated the Constitution or laws of the United States.”

This piece was republished from USA Today.