Austin's dilemma: Should the city settle with people injured by police during protests?

Ryan Autullo
Austin American-Statesman

At a recent hearing in federal court in Austin, attorneys handling lawsuits filed against the city by people injured during the May 2020 social justice protests revealed that they had reached a stalemate and wanted the judge to break it.

The disagreement was over the number of times Mayor Steve Adler, City Manager Spencer Cronk and Council Member Greg Casar would have to sit for pretrial depositions. The plaintiffs' lawyers sought to interview them many times, arguing that because it was a chaotic episode, there was a lot of ground to cover. The city's lawyers said the request was overly burdensome.

More:A year after social justice protests, Austin policing reform has slowed amid GOP pushback

Police and protesters clash outside Austin police headquarters on May 30, 2020. The demonstrators were protesting the officer-involved deaths of George Floyd in Minneapolis and Michael Ramos in Austin.

U.S. District Judge Robert Pitman reasoned that the squabble was not his to fix and directed the lawyers into a conference room. He told them they were not to leave until they worked it out.

The disagreement, played out in Pitman's courtroom Dec. 15, is probably a forerunner to more disputes as the city weighs whether to turn the page from an ugly protest response and award taxpayer money to victims instead of proceeding to trial.

Protests:Austin police probe whether issues with less-lethal rounds led to protesters’ injuries

The first trial is scheduled for April but could be canceled if a settlement is reached or postponed to make time for more developments in the case, including on the criminal side. The Travis County district attorney's office has begun a grand jury presentation on the actions of officers who injured protesters and is likely to wrap up sometime this winter, District Attorney José Garza said.

Police use tear gas to clear away protesters who blocked Interstate 35 near Austin police headquarters on May 31, 2020. Protesters continued to demonstrate against officer-involved killings in Minneapolis and Austin.

According to court records, 150 beanbag shots were fired throughout the weekend when thousands of people gathered in downtown Austin to protest the officer-involved deaths of George Floyd in Minneapolis and Michael Ramos in Austin. Floyd died after police officer Derek Chauvin knelt on the back of his neck for more than nine minutes. Chauvin was convicted of second-degree murder. Ramos was shot in Southeast Austin a month earlier, and officer Christopher Taylor is charged with murder in the case.

The grand jury will review incidents involving 10 injured protesters or protest attendees and 16 police officers.

More:How calls to ‘defund the police’ took Austin to a crossroads of police reform

There appears to be momentum on the City Council to settle the lawsuits sooner rather than later. At its final meeting of the year Dec. 9, the council approved an amended legal services agreement with an outside law firm the city hired to handle two of the cases. The agreement came with a twist: It does not include payment for taking the case to trial, a signal from council members that they'd prefer to resolve the case through a settlement.

The plan would save the city $399,000 — an amount Casar suggested would be better spent by giving it to the plaintiffs than fighting them in court. The council can always reinstate the funding if settlements cannot be reached and trials are necessary.

The city's legal department is handling most of the cases.

Officers point weapons at a crowd of protesters outside Austin police headquarters May 30, 2020.

All settlements of more than $66,000 need the approval of a majority of the 11-member council. In December, the council approved a $99,000 payout to a California man who sustained injuries while being taken to the ground by an officer in 2018. In September, the council approved a $2.25 million payout to the parents of a suicidal man who was fatally shot by police in 2017. 

In a recent interview with the American-Statesman, Adler said he supports settling the protest cases but that it takes both sides to reach an agreement.

"In a perfect world, the answer to that would be yes," he said. "But I think that depends on the positions that everybody's ultimately taking."

In a statement, the city said: "While we cannot discuss the specifics of settlement negotiations based upon confidentiality rules, the city routinely engages in settlement discussions and mediations in all lawsuits. We seek to resolve all disputes in an appropriate and timely manner."

Protest response:Austin doled out millions in overtime pay to police during last year's racial justice protests

Impact of recent Austin police violence jury verdict

The outcome of a case from December could reset the going rate to resolve police brutality cases. Unable to reach a settlement, the city went to trial in the death of Landon Nobles, a 24-year-old man who was killed by Austin police officers in 2017. A federal jury sided against the officers and awarded $67 million to Nobles' family, a game-changing number that easily topped the record $3.25 million the city awarded in the death of David Joseph, a naked, unarmed teenager who was having a mental breakdown when he was fatally shot by an officer in 2016.

Landon Nobles was killed by Austin police officers in 2017.

The Nobles case is not related to the protests, but the verdict could speak to the community's growing impatience with police brutality and the mistreatment of people of color. A number of legal experts say they expect the payout to be reduced by a judge or on appeal, but the final amount still is likely to affect the city's negotiating leverage in the protest cases by recalibrating the starting point in discussions.

"To not factor that verdict in when assessing future acts of police misconduct would be malpractice on their part," said lawyer Jeff Edwards, who is representing nine people who were injured in the protests and has filed lawsuits on behalf of all of them.

Twelve lawsuits have been filed against the city and individual officers. That number could increase with the potential filing of a lawsuit from Brad Ayala, a teenager who was in surgery for seven hours after he was shot in the head by a beanbag munition fired by a police officer. Lawyer Dicky Grigg, who represents Ayala, did not respond to a message seeking clarification of the status of Ayala's potential legal claim.

Ayala was among 19 protesters or protest attendees who were taken to hospitals with injuries from beanbag rounds on the final two days of May. The lawsuits make a range of allegations: that protesters weren't doing anything wrong when they were shot, that officers fired the munitions recklessly into crowds and beyond the 75-foot distance considered to be accurate, and that the munitions were especially dangerous because they were expired and defective, a concern made public by the Statesman in October 2020.

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Austin police reforms followed social justice protests

Criticism of the Police Department's response led to a number of changes, including budget cuts and reallocations authorized by the council in 2020, the temporary closure of the police cadet training academy, revised training methods, and the discontinued use of beanbag rounds in crowded areas. It also led to an erosion of trust in then-Police Chief Brian Manley, who clung to his job through the end of the year before announcing he was stepping down in early 2021.

A motion is pending in federal court to delay proceedings in a civil case until the resolution of the related criminal case. The motion is from officer Kyle Felton, who is being sued for shooting Anthony Evans with a beanbag round. Felton says he cannot adequately fight the civil case without providing testimony in a deposition that could be used against him in the criminal case. 

Police and protesters clash at Austin police headquarters on May 30, 2020, during a protest of the officer-involved killings of George Floyd in Minneapolis and Michael Ramos in Austin. Protesters threw water bottles at officers, and they responded with pepper spray and beanbag rounds.

Garza, who was elected in 2020 after promising to hold officers accountable for their actions, would not say why his office has been slow to present the protest cases to a grand jury but did say the presentation began this fall and should conclude in the winter.

It is unclear whether, when presenting the cases, Garza's prosecutors will consider what guidance or direction was given to the officers by their supervisors when assessing culpability for the injuries.

In a deposition in a civil case, Police Chief Joe Chacon acknowledged that the department was "unprepared" for the size of the protests, which he said led to a communication breakdown. Chacon, who was part of the Police Department's leadership team at the time of the protests, was asked several times if officers shot "unarmed, innocent" protesters. He never said yes.

Court records show that in a separate deposition, Manley acknowledged receiving a text message from Casar on May 30 detailing the injuries to Ayala, the teenager who was struck in the head with a beanbag round, and to Nicole Underwood, who needed surgery after a beanbag round penetrated her chest.

Manley's deposition is not available publicly. Plaintiffs' lawyers say he testified that after receiving the text message, he continued to allow his officers to use the beanbag rounds until after the weekend was over.

If the city moves to settle the lawsuits, it will dip into a liability reserve fund of taxpayer money. Self-insurance is common among governments and provides the city more flexibility in handling cases as opposed to taking direction from an insurance company.

The fund is budgeted for $10.1 million in the current fiscal year.

A woman holds up hands bathed in blood, which she said was from Justin Howell, a 20-year-old who was wounded in the head with a beanbag round during a protest at Austin police headquarters May 31, 2020.
A protester who did not want to be identified holds a sign after police officers and some protesters knelt for 8 minutes, 46 seconds in memory of George Floyd at Austin police headquarters on June 6, 2020.