Austin police knew ‘less-lethal’ rounds could seriously injure people. They used them anyway.

Austin police officers shot scores of racial justice protesters in May 2020 with lead-pellet bags used to control crowds. Dozens of people were seriously injured by the so-called “less lethal” ammunition.

The city has paid out more than $20 million in civil lawsuits over the use of these rounds, and the Austin Police Department vowed to stop using them.

Four years later, a summary of APD’s internal investigation and a review of emails show the department had ignored earlier concerns about the ammunition.

While that now-published investigation sheds light on the department’s oversight, attorneys representing injured protesters say the results of the investigation and the timing of its release shielded the city and APD leadership from being sued.

Rounds perform inconsistently

Travis County District Attorney José Garza began investigating the police department in the wake of the protests. While that investigation ultimately yielded some police indictments, most were dismissed late last year. The city and district attorney are now pushing the Department of Justice to look into the police response.

Last August, ahead of the decision to drop charges, Assistant Cmdr. Jeff Greenwalt opened an investigation into the rounds out of concern APD hadn’t shared everything with the DA.

“It became apparent that there was a possibility that all the information APD had in 2019 and 2020 prior to the riots was not discovered and/or shared with the Travis County District Attorney’s Office,” a summary of Greenwalt’s investigation reads.

Going back as far as 2019, the investigation shows, APD staff had expressed concern about the ammunition – specifically the rounds used during the 2020 protests manufactured by Defense Technology, or Def Tech.

In September 2019, then-Cpl. Will Mercado, an APD instructor, found the rounds performed inconsistently. Compared to rounds manufactured by Combined Tactical Systems, some would veer off-target when aimed down a firing range at 15 and 20 yards.

Mercado took a photo of an ammunition test and told his superiors about his findings.

 

Concerns arose again when a man was shot in the shoulder with one of the rounds in January 2020. The suspect’s shoulder was punctured, requiring surgery to remove the round. APD’s internal review found the use of force met department standards, but for Sgt. Steven Willis, it was a “major turning point,” according to a summary of the investigation.

WARNING: The image below is graphic.

Willis said he was concerned the rounds could cause severe damage and pushed the city to use foam-tipped ammunition instead. He brought his concerns to an assistant chief, but there was no immediate response.

During the 2023 internal investigation, Willis told APD he knew officers were using the same ammunition during 2020 protests outside department headquarters and on Interstate 35. He said it made him “sick to (his) stomach.”

“I played a part in this, in this … machine and if I could have crawled under a rock I would have,” he told investigators. “Sitting there and knowing we knew there was a problem, we did nothing to fix it, and months later, this is occurring either out of malfeasance, ignorance (or) laziness. … In the end, we’ve now got people with permanent injuries, debilitating injuries and we’ve got officers that have been indicted.”

There were also concerns the rounds were defective or that they had fused together into a single slug, making them more likely to puncture – and potentially lethal.

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After dozens of people were injured in the 2020 protests – including Justin Howell and Brad Levi Ayala – the department said it wouldn’t use the rounds on crowds again. Travis County DA Garza opened an investigation into officers in conjunction with APD’s Special Investigations Unit.

“There is knowledge, information, and data, indicating there was a possible issue with the age, condition, and accuracy of the 12 gauge less lethal round prior to and leading into the 2020 riots,” the department said in its own 2023 internal investigation.

Prior to that, the department downplayed the possibility of defective rounds. Interim Police Chief Robin Henderson, then the department’s liaison to the DA’s Office, told that office via email in December 2021 that the department “could not find” any evidence of defective rounds. She added that “testing was ceased and never completed,” according to the email shown to KUT.

‘System failure’

APD’s internal investigation was completed late last year – more than three years after the shootings. It wasn’t provided to Garza’s office until December. The city and APD didn’t disclose the findings to attorneys in civil rights cases until mid-March.

That made it too late to prosecute APD higher-ups, raising questions for attorneys representing clients in these suits.

Rebecca Webber, who represents a protester shot in the face, said the department could have been found criminally liable if the city had divulged the results of the investigation earlier. Instead, she said, APD “avoided accountability.”

“I’m just appalled,” Webber said. “I cannot believe that this information was kept hidden from the community, from the plaintiffs’ lawyers, from the DA.”

Assistant City Manager Bruce Mills told KUT the department cooperated with the DA’s investigation and that “underlying documents of the entire case were provided,” but said the lack of knowledge on the part of APD’s leadership was “a system failure.”

Ismael Martinez, a spokesperson with the Travis County District Attorney’s Office, told KUT the “office is troubled by both the conclusions of this investigation and its timing.”

Austin attorney Jeff Edwards, who has represented more than a dozen plaintiffs injured by APD during the 2020 protests, said there could be a few reasons why the city didn’t choose to divulge what the department knew and when.

One, he said, is “absolute incompetence” – the city and APD dropped the ball and didn’t provide a timely response. The other, Edwards says, is they deliberately chose to slow-walk it to protect APD and the city from a lawsuit.

Either way, he said, the city chose to look at this as a “litigation problem,” not an effort to meet community demands for accountability.

“It is simply a fact that information was hidden or not revealed until after a period of time when it would not enable people to file additional lawsuits against additional people,” he said. “Now, do I know for a fact that that was done purposely? No. But, you know, I’m left with several possible conclusions. A nefarious attempt to harm litigants is certainly possible.”

After APD and city lawyers disclosed the results of the investigation on March 14, Webber filed a lawsuit against Def Tech. Ironically, so did Rolan Rast, the officer who shot her client Sam Kirsch in the face. Both argue the manufacturer should bear some responsibility for what happened.

KUT reached out to both Def Tech and CTS for comment on the lawsuit. Neither responded.

Webber said Kirsch had eight surgeries to repair his cheekbone, which was cratered by a less-lethal round. He could have as many as three more this year, she said.

In a 2023 deposition, Kirsch told attorneys he can’t ride a bike or play soccer. Using his phone or a computer is taxing. He’s in constant pain. He’s been depressed, has PTSD.

Kirsch described going through life with constant pain as a “grim outlook.”

“There’s nothing else that’s really going to help and it’s just permanent,” he said. “And this is just my life now.”

This story was produced as part of the Austin Monitor’s reporting partnership with KUT.

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