Travis County District Attorney José Garza announced the indictments last week, each for the firing of less-lethal “bean bag rounds” during the protests-turned-riots of late-May 2020. Some individuals in the crowds were struck and injured, some seriously so, during the mayhem highlighted by the overtaking of I-35 by a mass of people. Smoke and gas canisters were also deployed, one of which was thrown back at officers by someone in the crowd.
According to Austin Police Department (APD) Chief Joe Chacon, those bean bag rounds were defective, a fact of which the defense attorneys say department leadership was aware.
At a Monday news conference, attorneys Doug O’Connell and Ken Ervin disclosed the names of their clients and provided more details about their situations. The eight are:
- Sgt. Josh Blake – SWAT team member, 20-year APD vet
- Sgt. Stan Vick – Internal Affairs member, 16-year APD vet
- Sgt. Brett Tableriou – Sector Investigations member, 19-year APD vet
- Cpl. Ed Boudreau – Patrol Corporal assignment, 15-year APD vet
- Cpl. Christopher Irwin – Patrol Corporal assignment, 9-year APD vet
- Senior Officer Justin Berry – Special Events and Emergency Management Division assignment, 14-year APD vet
- Senior Officer Eric Heim – Background Investigator assignment, 7-year APD vet
- Senior Officer Jeff Teng – Patrol assignment, 5-year APD vet
The eight officers are currently assigned to administrative duty while the charges unfold, which means they can neither take overtime hours nor be promoted.
Administrative duty also means that the indicted officers will not be called as witnesses for any other pending criminal investigations, which could affect those cases’ outcomes. But they still have their jobs and normal paychecks.
Aggravated assault is a first-degree felony and has two components: use of a deadly weapon and the cause of serious bodily harm. In addition to the potential prison time, it is punishable by a fine up to $10,000.
O’Connell and Ervin said that some of their clients were booked on Friday last week and others finished processing Monday morning. Each bailed out of jail at a $1 cash bond.
“They’re horrified, demoralized. They’re worried about their families [and] their future,” O’Connell said of his clients.
Ervin added, “[They’re] unable to understand how they can be charged with first-degree felonies for carrying out duties they were ordered to do, and that were commonly taught and accepted.”
“Part of the problem is that you have Mr. Garza reviewing body-worn camera video tape, finding incidences that he believes are objectionable, and adding people to the list,” O’Connell said. In a couple of these instances, the attorneys said, the district attorney’s office cannot identify which officer’s bean bag round struck the injured individuals. In those instances, each officer whose round might have struck the person in question has been charged.
During the protests and riots, the attorneys say their clients were struck with multiple objects like frozen water bottles, glass bottles, rocks, exploding fireworks, bottles of urine, and one attempted Molotov cocktail.
The officers’ actions were both responsive to riots and directed by APD leadership.
A riot in Texas statute is defined as an “assemblage of seven or more persons resulting in conduct which: creates an immediate danger of damage to property or injury to persons; substantially obstructs law enforcement or other governmental functions or services; or by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.”
Some of the cases were opened shortly after the incidents in 2020, meaning that at least a few have been open for nearly two years before indictments were announced. O’Connell added, “I’ve never seen something like that happen in my 26 years of practicing law in our courthouse.”
Asked if he thinks the charges are politically motivated, O’Connell said, “Absolutely.”
One of those officers, Justin Berry, is a candidate for Texas House this year in House District 19.
O’Connell conceded that some of the injuries may be ripe for “righteous personal injury lawsuits,” but that they are outside the scope of these criminal law parameters.
The indictments came on the same day that the city council approved $10 million in personal injury settlements with two individuals injured from bean bag rounds during the protests.
Chacon and City Manager Spencer Cronk said last week at a press conference that the criminal charges lack merit, citing the internal department investigations that unfolded. But Austin Mayor Steve Adler took a different tune, saying that bean bag rounds never should have been allowed, but adding that the “judicial process…needs to be respected.”
“Our mayor is, I understand, a lawyer — but I think perhaps he was sleeping during Constitutional Law because you don’t have a constitutional right to throw rocks, bottles, [or] bricks at police officers,” O’Connell said.
Because of the courthouse’s coronavirus restrictions and backlog, the attorneys estimate this may take over a year to be adjudicated. O’Connell added that each of their clients has an initial court date set, at which point they will request a jury trial.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.