AUSTIN (KXAN) — Last November, cell phone video of several Austin police officers arresting three people on Sixth Street for jaywalking went viral on social media, and now two of the people in that video are suing APD.
Monday morning, attorney Brian McGiverin filed a lawsuit on behalf of his clients, Jeremy King, 22, and Lourdes Glen, 24, claiming that officers used excessive force on Nov. 6, 2015. The lawsuit, which was filed in federal court, accuses four officers of targeting King and Glen because of their race, since police did not arrest their white friends and others who also jaywalked, they say.
“What happened here was outrageous, it was unreasonable, it was racist and unconstitutional,” said McGiverin during a news conference at Dietz, Lawrence & McGiverin Law Center of Austin.
Court document state Glen’s right to free speech was violated after, “she was criticizing their [police] treatment of Mr. King and the other African-American man they were arresting.” She was later arrested.
“The way it happened was just unnecessary and aggressive and freedom of speech was given on my behalf, but taken from me as I was arrested,” explained Glen to a room full of reporters. “Everything was circulated on color rather than an entire group who was walking the street.”
The two friends are from San Antonio and were visiting Austin for the Fun Fun Fun Festival. The two said they were on vacation with other friends and later went to Sixth Street. They were on their way to get an Uber when they crossed Red River Street. Police say the group did not have the right of way and went against the light.
“We all crossed the intersection at that point we were jumped by the cops, we were both tackled into the building, me and the male I was with,” explained King. “They began to tell us that we’re going to jail, frisked us down, my hands were put behind my back and then sat on the curb I was then thrown on the ground after I tried to adjust my pants and at no point did they tell me what I had done wrong.”
The other man, Matthew Wallace, is seen the most on the video as officers handcuff him. He is heard saying “Whoa, whoa, whoa, what the F,” and the video shows three officers grabbing a hold of Wallace and placing him in a head lock, punching him in the arm and kneeing him.
Officers are heard telling Wallace to stop resisting.
Wallace is not listed on the lawsuit. McGiverin said he advised him to not join because he has a charge for resisting arrest, which is a criminal charge.
The lawsuit is against officers Richard Munoz, Brian Huckaby, Gustave Gallenkamp and Vanessa Jimenez and lists “unknown officers” as defendants.
The video shows several officers in the back then take King to the ground and handcuff him. Court documents state a doctor diagnosed King with acute cervical strain and acute wrist sprain.
“I was in pain for a good three days after, I had a sprain on my wrist, it was hard to turn my head, I had a knot on my forehead for a few days, my back was sore,” said King during the press conference. He also said he has been going to counseling every week.
“I don’t want this, what happened to me to happen to anyone else, so whatever disciplinary actions need to come to the officers or whatever needs to happen to the department that’s what I want to happen,” said King when asked why they filed the lawsuit.
During the entire video Glen is seen and heard yelling at officers as she questions why they arrested her friends, claiming it was because of their race.
“Now I’m personally and others are scared to even come into this city as I do not know how others will treat us as far as the police department,” said Glen, who is Latina.
The lawsuit goes on to state video from across the street after the incident, “shows two men, apparently Anglo, walking through the intersection 10 to 15 seconds apart form each other while the pedestrian signal displayed a bold, red hand. The officers nearby ignored their jaywalking.”
King said his charges were dropped while Glen is still facing charges for jaywalking.
The lawsuit states the plaintiffs are seeking compensatory and punitive damages and a jury trial.
Expert says it’s hard to judge video without all the facts
Expert Jerry Staton is a retired Austin police officer of 25 years and currently the owner and primary instructor of Affordable Realistic Tactical Training. He also serves as an expert for interpreting use of force cases.
“The general public wants to know, ‘Was this the right thing to do? Or was this wrong? Or was it excessive or was it not?’ Well the law judges not as to right or wrong, it judges it to a standard called objectively reasonable,” explained Stanton.
Stanton said it allows an officer to make an honest mistake as long as it’s not so egregious that no reasonable officer would have made the same mistake.
“No use of force is pretty if the person who is being arrested is resisting the only people who have a true and accurate idea of how much resistance being offered are the officers who are there doing it,” explained Stanton.
He said in an age where videos are readily available, it’s hard to jump to conclusions because the videos don’t always show what happened beforehand.
“It’s real easy if the person resisting is punching, kicking and actually trying to hurt someone that’s easy to judge, but how much resistance is being offered how much muscular tension he’s giving, how difficult it is for the officer to get the person into a position where they can get the coughs on, all of that is very difficult to watch a video and truly understand.”
Interpreting the video
“What he’s saying and what he’s doing are two different things,” explained Staton in regards to Wallace telling officers he wasn’t resisting. “He was resisting or they would have been easily able to put his hands behind his back and put him in cuffs.”
Staton said Wallace went beyond ‘passive resistance,’ meaning he was tensing up his body which didn’t allow officers to handcuff him. But Staton said there’s nothing on the video which suggests Wallace was using ‘aggressive resistance’ or in other words trying to hurt officers.
“Though again the video is kind of dark and you can’t see everything that’s going on,” said Staton.
When it comes to the headlock, Staton said he knows the move will raise eyebrows but said the officer wasn’t putting him in a choke hold.
“What police officers know… is if you control a person’s head you have more control of the person,”explained Staton. “[The officer] has control of his head, but I can’t say unequivocally that there’s no pressure being put on his head because you can’t tell, but [Wallace] is clearly able to breathe, talk and respond.”
An officer is later seen striking Wallace with two punches on his upper right arm.
“Is it a tool in the tool box to use your closed fist, sure, it’s whats called a ‘distracting technique’ or a ‘distracting punch,” explained Staton. “What I saw, what I interpreted was the police officer was trying to force the man’s hand behind his back, the man was not allowing him to do that and he was trying to distract him enough where he would release his muscular tension so he could get his hand behind his back.”
“There were a lot of things that could have been a whole lot worse this was not pretty, use of force is never pretty when someone is resisting, but it was reasonably controlled that they didn’t step up to the next level of immediate patrols of force options,” said Staton.