Travis County District Attorney Jose Garza recently called for the indictments of 19 Austin Police Department, Police Officers. The District Attorney’s Office stance is the use of less than lethal force, as used by the 19 officers, was considered excessive and harming.

The officers are accused, essentially, of firing less than lethal projectiles in a reckless manner; for which, caused injury to one or more people, without a justifiable argument for the risk to the force used.

The Austin Police Department revised its’ General Orders on or about March 17, 2021. This was after a protest in Austin, Texas where the practice of using a kinetic energy projectile, commonly referred to as a bean bag gun, cause substantial injury to one or more protesters.

One may notice the Austin Police Department indicates an Officer may no longer use the bean bag gun for crowd control and that rounds of such type may no longer be fired into a crowd.

One may view this matter as a mitigating circumstance to the use of force by the 19 Officers indicted for such actions; however, it is common knowledge that bean bag guns lose their accuracy the further away someone may be. This means, by default, there could be an unjustifiable risk to harm someone by its use in matters where others could recklessly be harmed.

There have been claims the rounds were expired and that is the reason people were severely hurt, but the point of reckless disregard is still missed. The point of the bean bag gun is to allow for compliance with a lawful action, when circumstances dictate the use of the force option can be justified. These Officers have to justify the force used, and mitigate the belief of reckless conduct; per their report of use policy.

The ability to negate reckless becomes even harder when it has already been determined that people which were not intended to be struck by the force option, were struck; regardless of severity.

The new Austin Police Department General Orders on High Kinetic Energy Projectiles reads as follows:

In reading the new General Order, it becomes obvious that the changes do not actually change the way the use of force options should have been used, before the policy change. This is because the General Orders already focused on risk factors and harmful impact upon innocent by-standards. This would be the same concept with using any force. Nothing has changed in the realm of use of force. The deployment, in ones opinion, of the bean bags towards a crowd of people, outside the accuracy range of the device, appears unreasonable and risky. The justification for the unreasonable risk could be considered confirmed when unintended individuals are struck with the inaccurate projectile. Again, the expiration of the product appears irrelevant to the cause and effect.

Many, if not all, the 19 Officers were indicted under Texas Penal Code 22.02(b)(2)(a), Aggravated Assault by a Public Servant:

Sec. 22.02.  AGGRAVATED ASSAULT.  (a)  A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:(1)  causes serious bodily injury to another, including the person's spouse;  or(2)  uses or exhibits a deadly weapon during the commission of the assault.

Sec. 22.01.  ASSAULT.  (a)  A person commits an offense if the person:(1)  intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;  (2)  intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse;  or(3)  intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

(b)  An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if: (2)  regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed:(A)  by a public servant acting under color of the servant's office or employment;

The statue indicates “serious bodily injury.” The District Attorney will have to show how the actions were reckless, and how the Officers knew, or could expect, “serious bodily injury,” but even if “serious bodily injury,” is not able to be determined, the Officers may still be reviewed under Texas Penal Code 22.01.

Such element is where the District Attorney may be able to better represent “reckless,” and “bodily injury.” This is because, the training on implementing bean bag rounds already indicates a reasonable likelihood of “bodily injury.” The training also indicates accuracy of rounds diminish by the distance shot, and unintended individuals were hit with projectiles.

This appears to become a technical “use of force,” case. One where the District Attorney will have to show improper use of force was used, and its use was reckless, which cause bodily injury and/or serious bodily injury. The expiration of the rounds becomes a moot point. The cause and effect, and continued use, after witnessing serious bodily injury would be reviewed.

It does appear, the District Attorney has a case, for at least a Class A misdemeanor and/or Class C misdemeanor; if the argument for serious bodily injury cannot be held.

The following Austin Police Department, Police Officers were indicted by the Travis County District Attorney’s Office for the 2020 protest in Austin, Texas:

• Alexander Lomovstev – Two Counts TPC 22.02(b)2(A)
• Eric Heim – Two Counts TPC 22.02(b)2(A)
• John Siegel – Two Counts TPC 22.02(b)2(A)
• Stanley Vick – Two Counts TPC 22.02(b)2(A)
• Brett Tableriou – Two Counts TPC 22.02(b)2(A)
• Christopher Irwin – Two Counts TPC 22.02(b)2(A)
• Nicholas Gebhart – Two Counts TPC 22.02(b)2(A)
• Rolan Rast – Two Counts TPC 22.02(b)2(A)
• Joseph Cast – Two Counts TPC 22.02(b)2(A)
• Derrick Lehman – Two Counts TPC 22.02(b)2(A)
• Kyle Felton – Two Counts TPC 22.02(b)2(A)
• Jeffrey Teng – Two Counts TPC 22.02(b)2(A)
• Jeremy Fisher – Two Counts TPC 22.02(b)2(A)
• Joshua Blake – Two Counts TPC 22.02(b)2(A)
• Kyu An – Two Counts TPC 22.02(b)2(A)
• Justin Berry – Two Counts TPC 22.02(b)2(A)
• Edward Boudreau – Two Counts TPC 22.02(b)2(A)
• Todd Gilbertson – Two Counts TPC 22.02(b)2(A)
• Joshua Jackson – Two Counts TPC 22.02(b)2(A)