theintercept--2020-06-12--After Barr Ordered FBI to "Identify Criminal Organizers," Activists Were Intimidated at Home and at

After Barr Ordered FBI to "Identify Criminal Organizers," Activists Were Intimidated at Home and at Work

any run-ins with the cops before .
I ’ ve never been to jail and have no criminal record , so when the FBI showed up to my workplace , it scared the piss out of me , ” says Katy , a 22-year-old who works for a custodial services company in Cookeville , a small college town in middle Tennessee .
“ I really thought I was going to lose my job .
The whole experience was terrifying.
” Moved by the video of the police killing of George Floyd in Minneapolis , Katy — who requested she only @ @ @ @ @ @ @ and a friend had created a Facebook event for a Black Lives Matter rally in Cookeville ’ s public square on Saturday , June 6 .
She soon connected with several other Cookeville locals who wanted to help with planning the event , and enthusiasm grew as word of the rally spread .
“ I ’ ve never organized a rally before , I was just winging it , ” Katy said .
“ I didn ’ t expect a lot of people to show up , but overnight 600 people had RSVP @ @ @ @ @ @ @ their own Facebook group , Protect Cookeville Against Looters , which quickly swelled to over 1,000 members .
Some of the members of this group determined that Katy was the main organizer of the upcoming rally and began posting her personal information and making violent threats .
“ The event for the rally had been up for about four days when we started getting death threats , ” Katy said .
“ It was too much .
I was overwhelmed.
” Katy eventually backed out of the rally — and a group of @ @ @ @ @ @ @ — but she had already gotten the attention of the FBI ’ s Joint Terrorism Task Force , or JTTF , a federally coordinated network of local law enforcement officers who work under the direction of the FBI to gather intelligence about terrorist threats .
On June 4 , agents turned up unannounced at Katy ’ s work , pulling her off the job and into a large truck in the gravel parking lot to question her about her connections to the upcoming rally and to antifa — the loose anti-fascist movement recently @ @ @ @ @ @ @ Donald Trump .
Katy had never heard of them .
As The Intercept has previously reported , FBI agents have been questioning arrested protesters about their political beliefs , apparently at the behest of U.S. Attorney General William Barr .
Barr , following Trump ’ s repeated false assertions that there is a sophisticated , national network of antifa operatives infiltrating local protests against police brutality to enflame violence , announced that antifa is a domestic terrorist organization on May 31 .
Barr also directed the JTTF to “ identify criminal organizers and @ @ @ @ @ @ @ no organizational structure and the FBI ’ s own internal assessments don ’ t support the claim that antifa is somehow weaponizing protests The following week , over the span of four days , Katy and at least three other activists in Cookeville , whose population is just 34,000 , received unannounced visits by agents who questioned them about their political affiliations and whether they had information about outside agitators planning to hijack local protests .
“ What the JTTF is doing is shocking , but we saw this happen before during the @ @ @ @ @ @ @ other various agencies investigated activists with the purpose of discouraging or chilling free speech , ” said Will York , an attorney who specializes in free speech cases and is a founding member of the National Lawyers Guild ’ s Nashville chapter .
“ If the movement for police reform and racial justice has legs in Cookeville , Tennessee , then it clearly has touched a deep nerve in this country .
Federal and local police agencies trying to counter that momentum are likely to use these tactics to make activists think twice @ @ @ @ @ @ @ especially in rural communities.
” a 19-year-old college student on summer break back home in Cookeville , decided to organize an impromptu Black Lives Matter rally in the Cookeville public square on Tuesday , June 2 .
A little after 3 p.m. , Anderson and his friends announced on their Instagram stories that there would be a peaceful protest in the city square at 5 p.m. A friend picked Anderson up at 4:30 p.m. to head to the rally when he got a call from his mother saying , “ The FBI is @ @ @ @ @ @ @ what is happening.
” Anderson rushed home .
By the time he got there , the two agents were gone and his mother was in a state of panic .
She told Eli they had flashed FBI credentials .
“ The agents told her they had been monitoring my social media and believed that I might have information about antifa coming to town , ” Anderson said .
“ I ’ m like , ‘ What the fuck is antifa ?
’ I had never even heard of it before.
” The next @ @ @ @ @ @ @ , June 3 , Mackenzie Randall , a 21-year-old electrical engineering major at Tennessee Tech University , was startled when two JTTF agents showed up to her apartment unannounced .
The agents told Randall they wanted to talk her about her social media posts offering to help provide transportation to the local Black Lives Matter protest set for that Saturday .
Randall let the agents into her home , where they began questioning her about , in her words , “ terrorist organizations trying to come into the peaceful protests in Cookeville.
” @ @ @ @ @ @ @ anyone in antifa or had heard anything about antifa coming to Cookeville , ” Randall said .
The agents also mentioned private posts Randall had made on her own Facebook page , which could only be seen by her Facebook friends .
“ They were very intimidating , ” she said .
The FBI did not respond to request for comment .
One of the JTTF officers who interviewed Katy , Randall , and Smith is a deputy for the Putnam County Sheriff ’ s Office .
The sheriff ’ s office declined @ @ @ @ @ @ @ recalled a similar experience .
“ They were trying to make me feel like dangerous people were going to come to Cookeville and just burn shit to the ground and give us a bad name , ” Katy said .
“ I feel like it was pure intimidation .
They didn ’ t want us to have that rally.
’ The next day , agents also showed up unannounced to the home of Andrew Smith , a gregarious 52-year-old Presbyterian minister and instructor at Tennessee Tech .
Smith ’ s wife recorded the @ @ @ @ @ @ @ the talking , preaching to the agents about the social justice ministry of Jesus Christ .
“ I think they realized they knocked on the wrong door and weren ’ t going to intimidate me , ” Smith said .
“ They couldn ’ t get out of there any quicker.
” The JTTF had grown in Tennessee since September 11 , 2001 .
“ Lots of agencies love the JTTF because they can keep a deputy or an agent and not have to pay their salary because the FBI pays for it @ @ @ @ @ @ @ Tennessee state trooper and Cookeville City Council member , told The Intercept .
“ There is a whole team of JTTF cyber security agents in Nashville who just monitor people ’ s Facebooks , ” Miller said .
“ I know this from being a law enforcement officer , we ’ ve had plenty of classes on it.
” Despite the fear stoked by JTTF officers , large crowds still turned out to the rally in Cookeville last Saturday .
Protesters held signs that said “ Love Thy Neighbor As Thy Self ” @ @ @ @ @ @ @ and listened as their neighbors shared stories over a megaphone .
It was a sunny day .
There were no arrests .

“I’ve never had any run-ins with the cops before. I’ve never been to jail and have no criminal record, so when the FBI showed up to my workplace, it scared the piss out of me,” says Katy, a 22-year-old who works for a custodial services company in Cookeville, a small college town in middle Tennessee. “I really thought I was going to lose my job. The whole experience was terrifying.”
Moved by the video of the police killing of George Floyd in Minneapolis, Katy — who requested she only be identified by her first name — and a friend had created a Facebook event for a Black Lives Matter rally in Cookeville’s public square on Saturday, June 6. She soon connected with several other Cookeville locals who wanted to help with planning the event, and enthusiasm grew as word of the rally spread.
“I’ve never organized a rally before, I was just winging it,” Katy said. “I didn’t expect a lot of people to show up, but overnight 600 people had RSVP’d on Facebook.”
Counter-protesters organized their own Facebook group, Protect Cookeville Against Looters, which quickly swelled to over 1,000 members. Some of the members of this group determined that Katy was the main organizer of the upcoming rally and began posting her personal information and making violent threats.
“The event for the rally had been up for about four days when we started getting death threats,” Katy said. “It was too much. I was overwhelmed.”
Katy eventually backed out of the rally — and a group of local high school students took over planning — but she had already gotten the attention of the FBI’s Joint Terrorism Task Force, or JTTF, a federally coordinated network of local law enforcement officers who work under the direction of the FBI to gather intelligence about terrorist threats.
On June 4, agents turned up unannounced at Katy’s work, pulling her off the job and into a large truck in the gravel parking lot to question her about her connections to the upcoming rally and to antifa — the loose anti-fascist movement recently labeled as a terrorist organization by President Donald Trump. Katy had never heard of them.
As The Intercept has previously reported, FBI agents have been questioning arrested protesters about their political beliefs, apparently at the behest of U.S. Attorney General William Barr. Barr, following Trump’s repeated false assertions that there is a sophisticated, national network of antifa operatives infiltrating local protests against police brutality to enflame violence, announced that antifa is a domestic terrorist organization on May 31.
Barr also directed the JTTF to “identify criminal organizers and instigators,” even though antifa has no organizational structure and the FBI’s own internal assessments don’t support the claim that antifa is somehow weaponizing protests.
The following week, over the span of four days, Katy and at least three other activists in Cookeville, whose population is just 34,000, received unannounced visits by agents who questioned them about their political affiliations and whether they had information about outside agitators planning to hijack local protests.
“What the JTTF is doing is shocking, but we saw this happen before during the McCarthy era, when the FBI and other various agencies investigated activists with the purpose of discouraging or chilling free speech,” said Will York, an attorney who specializes in free speech cases and is a founding member of the National Lawyers Guild’s Nashville chapter. “If the movement for police reform and racial justice has legs in Cookeville, Tennessee, then it clearly has touched a deep nerve in this country. Federal and local police agencies trying to counter that momentum are likely to use these tactics to make activists think twice about organizing such an event again, especially in rural communities.”
Eli Anderson, a 19-year-old college student on summer break back home in Cookeville, decided to organize an impromptu Black Lives Matter rally in the Cookeville public square on Tuesday, June 2. A little after 3 p.m., Anderson and his friends announced on their Instagram stories that there would be a peaceful protest in the city square at 5 p.m. A friend picked Anderson up at 4:30 p.m. to head to the rally when he got a call from his mother saying, “The FBI is here and I don’t know what is happening.”
Anderson rushed home. By the time he got there, the two agents were gone and his mother was in a state of panic. She told Eli they had flashed FBI credentials.
“The agents told her they had been monitoring my social media and believed that I might have information about antifa coming to town,” Anderson said. “I’m like, ‘What the fuck is antifa?’ I had never even heard of it before.”
“I’m like, ‘What the fuck is antifa?’ I had never even heard of it before.”
The next night, on the evening of Wednesday, June 3, Mackenzie Randall, a 21-year-old electrical engineering major at Tennessee Tech University, was startled when two JTTF agents showed up to her apartment unannounced.
The agents told Randall they wanted to talk her about her social media posts offering to help provide transportation to the local Black Lives Matter protest set for that Saturday. Randall let the agents into her home, where they began questioning her about, in her words, “terrorist organizations trying to come into the peaceful protests in Cookeville.”
“He asked me if I knew anyone in antifa or had heard anything about antifa coming to Cookeville,” Randall said. The agents also mentioned private posts Randall had made on her own Facebook page, which could only be seen by her Facebook friends.
“They were very intimidating,” she said. The FBI did not respond to request for comment. One of the JTTF officers who interviewed Katy, Randall, and Smith is a deputy for the Putnam County Sheriff’s Office. The sheriff’s office declined to comment for this story.
“If the movement for police reform and racial justice has legs in Cookeville, Tennessee then it clearly has touched a deep nerve in this country.”
Katy recalled a similar experience. “They were trying to make me feel like dangerous people were going to come to Cookeville and just burn shit to the ground and give us a bad name,” Katy said. “I feel like it was pure intimidation. They didn’t want us to have that rally.’
The next day, agents also showed up unannounced to the home of Andrew Smith, a gregarious 52-year-old Presbyterian minister and instructor at Tennessee Tech. Smith’s wife recorded the short exchange. Smith did most of the talking, preaching to the agents about the social justice ministry of Jesus Christ.
“I think they realized they knocked on the wrong door and weren’t going to intimidate me,” Smith said. “They couldn’t get out of there any quicker.”
The JTTF had grown in Tennessee since September 11, 2001. “Lots of agencies love the JTTF because they can keep a deputy or an agent and not have to pay their salary because the FBI pays for it,” Mark Miller, a former Tennessee state trooper and Cookeville City Council member, told The Intercept.
“There is a whole team of JTTF cyber security agents in Nashville who just monitor people’s Facebooks,” Miller said. “I know this from being a law enforcement officer, we’ve had plenty of classes on it.”
Despite the fear stoked by JTTF officers, large crowds still turned out to the rally in Cookeville last Saturday. Protesters held signs that said “Love Thy Neighbor As Thy Self” and “End Police Brutality,” and listened as their neighbors shared stories over a megaphone. It was a sunny day. There were no arrests.


theintercept--2020-06-12--Facebook Pitched New Tool Allowing Employers to Suppress Words Like “Unionize" in Workplace Chat Pro

Facebook Pitched New Tool Allowing Employers to Suppress Words Like “Unionize" in Workplace Chat Product

The presentation discussed the “ benefits ” of “ content control.
” And it offered one example of a topic employers might find it useful to blacklist : the word “ unionize.
” On Facebook Workplace , employees see a stream of content similar to a news feed , with automatically generated trending topics based on what people are posting about .
One of the new tools debuted by Facebook allows administrators to remove and block certain trending topics among employees .
During an internal presentation at Facebook on Wednesday , the company debuted features for Facebook Workplace , an @ @ @ @ @ @ @ to Slack .
Facebook Workplace is currently used by major employers such as Walmart , which is notorious for its active efforts to suppress labor organizing .
The application is also used by the Singapore government , Discovery Communications , Starbucks , and Campbell Soup Corporation .
The suggestion that Facebook is actively building tools designed to suppress labor organizing quickly caused a stir at the Menlo Park , California-based company .
Facebook employees sparked a flurry of posts denouncing the feature , with several commenting in disbelief that the company would overtly @ @ @ @ @ @ @ to be blacklisted .
The following day , the company presentation was taken down .
But on Thursday afternoon , after the presentation had been deleted , Karandeep Anand , a product manager for Facebook Workplace , weighed in on an internal company board .
Anand apologized for the “ unionize ” example , noting that “ censoring users is not the purpose of this feature and Workplace ’ s ambition is to give everyone a voice , while maintaining a respectful work environment.
” He added that the “ oversight ” was @ @ @ @ @ @ @ intent from anyone on the team.
” Reached for comment a spokesperson for Facebook said , “ While these kinds of content moderation tools are useful for companies , this example was poorly chosen and should never have been used .
The feature was only in early development and we ’ ve pulled any plans to roll it out while we think through next steps.
” The incident is the latest example of a deeply divided office environment at Facebook , at which a growing number of engineers and designers are openly expressing @ @ @ @ @ @ @ who spoke to The Intercept on condition of anonymity said he saw the blacklisting feature , with a suggested use case around unionization , as a clear effort to give employers the ability to exert control over employees .
The company has long been criticized for selectively regulating what ’ s posted on its platforms , allowing paid ads to remain online no matter what .
The laissez-faire approach to potential political misinformation contrasts sharply with the powerful tools for employers to monitor and control discussions in the workplace .
The employee noted @ @ @ @ @ @ @ questioning the moral compass of chief executive Mark Zuckerberg .
Earlier this month , a number of Facebook employees staged a virtual “ walkout ” to protest the company ’ s decision not to flag an inflammatory post from President Donald Trump , in which the president appeared to endorse shooting in response to widespread looting and protests .
Many believed that the post was a clear violation of Facebook policies that prevent communications around the incitement of violence .
The controversy touched on growing concerns that Facebook has failed to do enough @ @ @ @ @ @ @ particularly with its decision not to regulate or fact-check paid political advertising .
The critics , however , have not won over Zuckerberg .
The 36-year-old technology tycoon has dug in , casting aside internal critics and bringing on combative Republican operatives to help him chart his way through a series of scandals .
The Wall Street Journal recently reported that Zuckerberg moved to replace several longtime board members in part of a shake up to reassert his control of the firm .
The company is reportedly planning on launching a group called @ @ @ @ @ @ @ money venture to more forcefully pressure lawmakers and regulators it sees as political opponents .
That Facebook is marketing Workplace as having built-in labor union suppression tools comes at a time when more and more Americans are likely using Facebook to organize .
A recent memo to employers , first reported by The Intercept , warned that the coronavirus has sparked widespread support for labor unions , and that online networking tools have become a powerful vector for organizing campaigns .
Employers have long attempted to stifle lawful workplace organizing by monitoring social @ @ @ @ @ @ @ found that between June 2009 and April 2011 , the National Labor Relations Board received about 100 charges that employees had been fired or disciplined due to online posts , largely on Facebook , around labor organizing .
Update : June 12 , 2020 , 12:10 a.m. PT This article has been updated with a comment from Facebook .

During an internal presentation at Facebook on Wednesday, the company debuted features for Facebook Workplace, an intranet-style chat and office collaboration product similar to Slack.
On Facebook Workplace, employees see a stream of content similar to a news feed, with automatically generated trending topics based on what people are posting about. One of the new tools debuted by Facebook allows administrators to remove and block certain trending topics among employees.
The presentation discussed the “benefits” of “content control.” And it offered one example of a topic employers might find it useful to blacklist: the word “unionize.”
Facebook Workplace is currently used by major employers such as Walmart, which is notorious for its active efforts to suppress labor organizing. The application is also used by the Singapore government, Discovery Communications, Starbucks, and Campbell Soup Corporation.
The suggestion that Facebook is actively building tools designed to suppress labor organizing quickly caused a stir at the Menlo Park, California-based company. Facebook employees sparked a flurry of posts denouncing the feature, with several commenting in disbelief that the company would overtly pitch “unionize” as a topic to be blacklisted.
The following day, the company presentation was taken down. But on Thursday afternoon, after the presentation had been deleted, Karandeep Anand, a product manager for Facebook Workplace, weighed in on an internal company board. Anand apologized for the “unionize” example, noting that “censoring users is not the purpose of this feature and Workplace’s ambition is to give everyone a voice, while maintaining a respectful work environment.” He added that the “oversight” was likely “lack of context versus bad intent from anyone on the team.”
When reached for comment, a spokesperson for Facebook said, “While these kinds of content moderation tools are useful for companies, this example was poorly chosen and should never have been used. The feature was only in early development and we’ve pulled any plans to roll it out while we think through next steps.”
The incident is the latest example of a deeply divided office environment at Facebook, at which a growing number of engineers and designers are openly expressing distrust in leadership.
One Facebook employee who spoke to The Intercept on condition of anonymity said he saw the blacklisting feature, with a suggested use case around unionization, as a clear effort to give employers the ability to exert control over employees.
The company has long been criticized for selectively regulating what’s posted on its platforms, allowing paid ads to remain online no matter what. The laissez-faire approach to potential political misinformation contrasts sharply with the powerful tools for employers to monitor and control discussions in the workplace. The employee noted that many Facebook team members are now questioning the moral compass of chief executive Mark Zuckerberg.
Earlier this month, a number of Facebook employees staged a virtual “walkout” to protest the company’s decision not to flag an inflammatory post from President Donald Trump, in which the president appeared to endorse shooting in response to widespread looting and protests.
Many believed that the post was a clear violation of Facebook policies that prevent communications around the incitement of violence. The controversy touched on growing concerns that Facebook has failed to do enough to combat misinformation on its platform, particularly with its decision not to regulate or fact-check paid political advertising.
The critics, however, have not won over Zuckerberg.
The 36-year-old technology tycoon has dug in, casting aside internal critics and bringing on combative Republican operatives to help him chart his way through a series of scandals. The Wall Street Journal recently reported that Zuckerberg moved to replace several longtime board members in part of a shakeup to reassert his control of the firm. The company is reportedly planning on launching a group called “American Edge,” a dark-money venture to more forcefully pressure lawmakers and regulators it sees as political opponents.
That Facebook is marketing Workplace as having built-in labor union suppression tools comes at a time when more and more Americans are likely using Facebook to organize.
A recent memo to employers, first reported by The Intercept, warned that the coronavirus pandemic has sparked widespread support for labor unions, and that online networking tools have become a powerful vector for organizing campaigns.
Employers have long attempted to stifle lawful workplace organizing by monitoring social media. One study of the phenomenon found that between June 2009 and April 2011, the National Labor Relations Board received about 100 charges that employees had been fired or disciplined due to online posts, largely on Facebook, around labor organizing.
Update: June 12, 2020, 3:10 a.m. ET
This article has been updated with a comment from Facebook.


theintercept--2020-06-12--“This Has to Stop”: Court Rejects Qualified Immunity for Officers Who Shot Wayne Jones 22 Times

Circuit Court of Appeals revived a federal civil rights lawsuit this week against police in Martinsburg , West Virginia , vacating a lower court ruling that had granted five officers qualified immunity in connection with the murder of Wayne Jones .
“ This has to stop , ” Judge Henry F. Floyd wrote .
The opinion forcefully rejected the officers ’ contention that they shouldn ’ t be forced to defend killing Jones , which they called a “ split-second ” decision after he ’ d refused to comply with their lawful orders .
The idea of qualified immunity for @ @ @ @ @ @ @ from charges of violating a person ’ s constitutional rights when they could “ reasonably believe ” that their actions were lawful , and it has been front and center amid protests and calls for reform since the murder of George Floyd by Minneapolis police officers on May 25 .
Though not immediately relevant in that case — the four officers have been criminally charged — qualified immunity is a legal doctrine that regularly shields officers from facing any civil sanction for using excessive force .
The Justice in Policing Act of 2020 @ @ @ @ @ @ @ 8 , seeks to do away with its sweeping protections .
In the Jones case , the officers argued in a motion for summary judgment that the case against them should be thrown out based on qualified immunity — in other words , that it should be dismissed before a jury could weigh the evidence against them .
The three-judge panel of the 4th Circuit roundly rejected that argument .
“ Although we recognize that our police officers are often asked to make split-second decisions , we expect them to do so with @ @ @ @ @ @ @ black lives , ” Judge Floyd wrote .
“ To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force , which we can not accept.
” It was roughly 11:30 p.m. on March 13 , 2013 , when Officer Paul Lehman spotted Jones walking along Queen Street in downtown Martinsburg .
He wasn ’ t on the sidewalk , as city ordinance would require , so Lehman followed Jones , a 50-year-old black man who was homeless and had been diagnosed @ @ @ @ @ @ @ , Lehman honked , pulled over , and asked Jones for identification .
Jones didn ’ t have any .
Lehman asked if he had any weapons ; Jones wasn ’ t sure what that meant .
“ Anything , ” Lehman responded .
“ Guns , knives , clubs.
” Jones did have a small fixed-blade knife tucked inside his right shirt sleeve , but he didn ’ t say that specifically , only that he had “ something on him.
” From there , the situation quickly escalated .
Lehman demanded @ @ @ @ @ @ @ .
Jones wanted to know why — “ What do you want ?
” he asked — but Lehman didn ’ t explain .
Instead , Lehman called for backup and , as Jones moved away , drew his Taser and fired .
A second cop , Daniel North , rolled up on scene and also fired a Taser at Jones .
Jones fled , running into the alcove in front of a bookstore down the street .
Before long , three more cops — William Staubs , Eric Neely , and Erik @ @ @ @ @ @ @ struck in the neck , kicked , and put into a chokehold — the 4th Circuit opinion notes that “ choking and gurgling sounds ” can be heard in dashcam video recordings of the incident — before one of the officers realized that Jones had the small knife .
The cops pulled away , forming a semicircle around him with their weapons drawn .
Jones was limp and lying on his right side .
Even though he was not moving , the cops demanded that Jones drop his knife .
When he didn @ @ @ @ @ @ @ their guns — a total of 22 rounds in two seconds .
A majority of the shots hit Jones in the back and buttocks .
He died at the scene .
A Berkeley County grand jury declined to indict the officers on criminal charges and in 2014 , Jones ’ s two younger brothers , Bobby and Bruce , sued in federal court alleging that the officers had used unreasonable and excessive force .
“ I want the public to know the truth , ” Bruce told the Herald-Mail in 2014 .
The @ @ @ @ @ @ @ federal district court , which repeatedly dismissed it , and the 4th Circuit , which has now revived the suit for the third time in six years .
In her most recent decision dismissing the case , District Judge Gina Groh found that the officers were entitled to immunity .
The question before her was whether the officers would have understood at the time that their actions leading to Jones ’ s death constituted an illegal use of excessive force .
Jones had a knife , she wrote , and fled from the @ @ @ @ @ @ @ of Jones in front of the bookstore , one of them was cut with the knife — though he wasn ’ t hurt — an action Groh referred to as an attempted stabbing .
When the cops realized that Jones had the weapon they backed away , and because they did , Jones wasn ’ t effectively “ secured ” — even though he wasn ’ t moving .
“ Accordingly , the court holds that , in March 2013 , it was not clearly established that an officer would violate an individual @ @ @ @ @ @ @ free from excessive force by shooting a person who : ( 1 ) committed a non-violent misdemeanor ; ( 2 ) resisted arrest and fled from officers ; ( 3 ) was armed with a knife and attempted to stab an officer ; and ( 4 ) was lying on the ground motionless at the time the shots were fired , ” Groh wrote in September 2018 .
“ Therefore , the officers are entitled to qualified immunity and summary judgment must be granted.
” The 4th Circuit was not impressed .
“ @ @ @ @ @ @ @ to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground , ” Floyd wrote .
The circuit court found that there was every reason to think that Jones was under the officers ’ control , and they should have known that shooting him repeatedly was excessive .
The fact that Jones had been pinned to the ground by multiple officers could certainly signal that he was secured , and the fact that he was unresponsive when they stood above @ @ @ @ @ @ @ he was not a threat .
“ The officers contend that Jones should have dropped the knife upon their commands , and that his failure to do so places his shooting in the gray zone where qualified immunity applies , ” the court wrote .
But , “ shouting ‘ drop the knife ’ seconds before shooting him was , at best , farcical because it was impossible for an incapacitated person to drop a knife tucked into his sleeve.
” Indeed , in looking back to the entire incident , the court @ @ @ @ @ @ @ directly on its deadly outcome .
“ Non-cooperation with law enforcement has never given officers carte blanche to use deadly force against a suspect ; luckily for many of us , neither has being ‘ armed ’ with a small knife , ” the court wrote .
“ Jones was not an armed felon on the run , nor a fleeing suspect luring officers into a high-speed chase .
Jones was walking in the road next to the sidewalk , away from the dark shadows and blind corners of buildings at night .
@ @ @ @ @ @ @ knife on his person .
As a pedestrian , he should have been on the sidewalk , but Officer Lehman never told him that.
” Christopher Brown , an attorney representing the Jones family , was elated by the ruling — and he had no idea it was coming .
The 4th Circuit had set the case for oral arguments , which were then postponed amid the coronavirus outbreak .
Brown was still waiting for word on when they would be rescheduled when the opinion dropped .
“ I can not tell you @ @ @ @ @ @ @ and to let them know we ’ re going to have the chance to seek justice for their brother , ” he said .
He said Jones ’ s killing fits squarely within the national conversation about racism and policing .
“ Anyone who is going to be honest is not going to be naive enough to say that had this been a Caucasian female , that it would ’ ve come out the same way , ” he said .
“ The approach and the attitude and demeanor of officers towards African @ @ @ @ @ @ @ is why the calls for change are not just national , they ’ re international now.
” And he ’ s pleased by the 4th Circuit ’ s critique of qualified immunity .
“ I ’ m encouraged to hear the court step out of its box a little and make a point that they ’ re not going to allow this shield to be used to protect officers from the unwarranted use of excessive force , ” he said .
Brown doesn ’ t believe that qualified immunity will ultimately be abolished @ @ @ @ @ @ @ to be reined in and applied more judiciously .
“ The way it ’ s applied in these cases is that it is constantly stretched in favor of the officer .
And it should not be that way .
People want their day in court , and they ’ re being denied their day in court , repeatedly , ” he said .
“ Wayne ’ s brothers , they have no desire that their brother become a headline person , but they do hope that the loss of their brother in some @ @ @ @ @ @ @ where we ’ re seeking change .
”

The 4th U.S. Circuit Court of Appeals revived a federal civil rights lawsuit this week against police in Martinsburg, West Virginia, vacating a lower court ruling that had granted five officers qualified immunity in connection with the murder of Wayne Jones. “This has to stop,” Judge Henry F. Floyd wrote.
The opinion forcefully rejected the officers’ contention that they shouldn’t be forced to defend killing Jones, which they called a “split-second” decision after he’d refused to comply with their lawful orders.
The idea of qualified immunity for police is that they can be insulated from charges of violating a person’s constitutional rights when they could “reasonably believe” that their actions were lawful, and it has been front and center amid protests and calls for reform since the murder of George Floyd by Minneapolis police officers on May 25. Though not immediately relevant in that case — the four officers have been criminally charged — qualified immunity is a legal doctrine that regularly shields officers from facing any civil sanction for using excessive force. The Justice in Policing Act of 2020, filed by House Democrats on June 8, seeks to do away with its sweeping protections.
“Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives.”
In the Jones case, the officers argued in a motion for summary judgment that the case against them should be thrown out based on qualified immunity — in other words, that it should be dismissed before a jury could weigh the evidence against them. The three-judge panel of the 4th Circuit roundly rejected that argument. “Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives,” Judge Floyd wrote. “To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”
Two Seconds, 22 Rounds
It was roughly 11:30 p.m. on March 13, 2013, when Officer Paul Lehman spotted Jones walking along Queen Street in downtown Martinsburg. He wasn’t on the sidewalk, as city ordinance would require, so Lehman followed Jones, a 50-year-old black man who was homeless and had been diagnosed with schizophrenia. After about a minute, Lehman honked, pulled over, and asked Jones for identification. Jones didn’t have any. Lehman asked if he had any weapons; Jones wasn’t sure what that meant. “Anything,” Lehman responded. “Guns, knives, clubs.” Jones did have a small fixed-blade knife tucked inside his right shirt sleeve, but he didn’t say that specifically, only that he had “something on him.”
From there, the situation quickly escalated. Lehman demanded that Jones get up against the car. Jones wanted to know why — “What do you want?” he asked — but Lehman didn’t explain. Instead, Lehman called for backup and, as Jones moved away, drew his Taser and fired. A second cop, Daniel North, rolled up on scene and also fired a Taser at Jones. Jones fled, running into the alcove in front of a bookstore down the street.
Before long, three more cops — William Staubs, Eric Neely, and Erik Herb — would arrive. Jones was struck in the neck, kicked, and put into a chokehold — the 4th Circuit opinion notes that “choking and gurgling sounds” can be heard in dashcam video recordings of the incident — before one of the officers realized that Jones had the small knife. The cops pulled away, forming a semicircle around him with their weapons drawn. Jones was limp and lying on his right side. Even though he was not moving, the cops demanded that Jones drop his knife. When he didn’t respond, all five fired their guns — a total of 22 rounds in two seconds. A majority of the shots hit Jones in the back and buttocks. He died at the scene.
A Berkeley County grand jury declined to indict the officers on criminal charges and in 2014, Jones’s two younger brothers, Bobby and Bruce, sued in federal court alleging that the officers had used unreasonable and excessive force. “I want the public to know the truth,” Bruce told the Herald-Mail in 2014.
The case pinged back and forth between the federal district court, which repeatedly dismissed it, and the 4th Circuit, which has now revived the suit for the third time in six years.
In her most recent decision dismissing the case, District Judge Gina Groh found that the officers were entitled to immunity. The question before her was whether the officers would have understood at the time that their actions leading to Jones’s death constituted an illegal use of excessive force. Jones had a knife, she wrote, and fled from the officers. While they were on top of Jones in front of the bookstore, one of them was cut with the knife — though he wasn’t hurt — an action Groh referred to as an attempted stabbing. When the cops realized that Jones had the weapon they backed away, and because they did, Jones wasn’t effectively “secured” — even though he wasn’t moving.
“Accordingly, the court holds that, in March 2013, it was not clearly established that an officer would violate an individual’s Fourth Amendment right to be free from excessive force by shooting a person who: (1) committed a non-violent misdemeanor; (2) resisted arrest and fled from officers; (3) was armed with a knife and attempted to stab an officer; and (4) was lying on the ground motionless at the time the shots were fired,” Groh wrote in September 2018. “Therefore, the officers are entitled to qualified immunity and summary judgment must be granted.”
“Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground.”
The 4th Circuit was not impressed. “Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground,” Floyd wrote.
The circuit court found that there was every reason to think that Jones was under the officers’ control, and they should have known that shooting him repeatedly was excessive. The fact that Jones had been pinned to the ground by multiple officers could certainly signal that he was secured, and the fact that he was unresponsive when they stood above him could have clued them in that he was not a threat. “The officers contend that Jones should have dropped the knife upon their commands, and that his failure to do so places his shooting in the gray zone where qualified immunity applies,” the court wrote. But, “shouting ‘drop the knife’ seconds before shooting him was, at best, farcical because it was impossible for an incapacitated person to drop a knife tucked into his sleeve.”
Indeed, in looking back to the entire incident, the court suggests that the officers’ behaviors bore directly on its deadly outcome. “Non-cooperation with law enforcement has never given officers carte blanche to use deadly force against a suspect; luckily for many of us, neither has being ‘armed’ with a small knife,” the court wrote. “Jones was not an armed felon on the run, nor a fleeing suspect luring officers into a high-speed chase. Jones was walking in the road next to the sidewalk, away from the dark shadows and blind corners of buildings at night. He was without housing and had a knife on his person. As a pedestrian, he should have been on the sidewalk, but Officer Lehman never told him that.”
The Chance to Seek Justice
Christopher Brown, an attorney representing the Jones family, was elated by the ruling — and he had no idea it was coming. The 4th Circuit had set the case for oral arguments, which were then postponed amid the coronavirus outbreak. Brown was still waiting for word on when they would be rescheduled when the opinion dropped. “I cannot tell you how it felt to call the brothers and to let them know we’re going to have the chance to seek justice for their brother,” he said.
He said Jones’s killing fits squarely within the national conversation about racism and policing. “Anyone who is going to be honest is not going to be naive enough to say that had this been a Caucasian female, that it would’ve come out the same way,” he said. “The approach and the attitude and demeanor of officers towards African American men is a problem. This is why the calls for change are not just national, they’re international now.”
And he’s pleased by the 4th Circuit’s critique of qualified immunity. “I’m encouraged to hear the court step out of its box a little and make a point that they’re not going to allow this shield to be used to protect officers from the unwarranted use of excessive force,” he said. Brown doesn’t believe that qualified immunity will ultimately be abolished, but he says that it needs to be reined in and applied more judiciously. “The way it’s applied in these cases is that it is constantly stretched in favor of the officer. And it should not be that way. People want their day in court, and they’re being denied their day in court, repeatedly,” he said. “Wayne’s brothers, they have no desire that their brother become a headline person, but they do hope that the loss of their brother in some way will help impact this momentous occasion where we’re seeking change.”


theintercept--2020-06-11--Police Attacks on Protesters With "Less Than Lethal" Weapons Result in Life-Threatening Injuries

, a volunteer medic and a group of protesters carry Justin Howell , limp and bleeding , toward the Austin Police Department .
Just minutes before , he ’ d been struck in the back of the head by lead pellet-filled “ beanbag , ” one of the so-called less-than-lethal munitions deployed by police during protests that have filled U.S. streets since the May 25 murder of George Floyd .
Another medic , standing at the front of the crew , has her arms crossed above her head — the Red Cross of the city ’ s protests — in @ @ @ @ @ @ @ cops .
That signal was unheeded by the officers stationed on the stairs leading up to police headquarters .
As the squad approached with Howell unconscious in their arms , the police opened fire , and indiscriminate rounds of beanbag ammunition blazed the crowd .
The medic at the front of the squad , Maredith Michael , was hit .
Her hands disabled , she fell to the ground .
Howell is 20 .
He ’ s a college student at Texas State University , 30 miles south of Austin , where he @ @ @ @ @ @ @ s kind of shy and not prone to unnecessary risk-taking , his brother , Joshua , told The Intercept .
“ He ’ s very intelligent , very inquisitive , very quick on his feet.
” He ’ s now in critical condition in an Austin hospital .
His skull was fractured .
He has a serious brain injury .
The road to recovery will be long .
Howell was one of at least two young men gravely injured by the use of less-lethal munitions fired by Austin police on May 30 and @ @ @ @ @ @ @ city ’ s protests over Floyd ’ s murder by Minneapolis police officers and the murder of an Austin man , 42-year-old Michael Ramos , on April 24 — a deadly encounter that also began with the firing of lead pellet ammunition .
Video and images of the damage done by less-lethal munitions have swept across social media , again raising serious questions about their use and misuse as tools for crowd control .
“ These less-lethal munitions are only less lethal by technicality , ” Joshua Howell said .
“ My brother @ @ @ @ @ @ @ when you fire them into a crowd .
Anything fired out of a shotgun at 90 miles per hour is lethal .
Calling them ‘ less lethal ’ is just fun with words.
” “ We Thought He Was Going to Die ” Less-lethal kinetic and chemical weapons rose to prominence during the drug war .
And that these munitions regularly cause serious and sometimes fatal injuries is nothing new .
Studies have found that both pepper spray and tear gas can cause serious eye injuries and respiratory problems — an issue intensified @ @ @ @ @ @ @ rounds have been associated with “ significant ” abdominal and chest injuries and death .
Kinetic projectiles have long caused permanent injury or death , particularly when fired at the head or neck .
Tasers have long been identified as lethal — even as proponents have worked overtime to deny that .
As the protests intensified , shares of Axon , the company that makes the weapon , spiked .
Amid the protests , head injuries have become shockingly common .
In Dallas , Brandon Saenz lost his left eye and seven teeth @ @ @ @ @ @ @ the crowd ; journalist Linda Tirado lost her eye to a police-fired projectile while covering protests in Minneapolis ; in Los Angeles , police reportedly shot out the eye of a homeless man with disabilities who protesters have said was not involved in their demonstration — a brutal incident cited in a federal lawsuit filed against the LAPD over its actions amid the protests .
Protesters in Denver won a temporary restraining order against police , barring their use of less-lethal munitions .
“ Some of the behaviors of what I hope and @ @ @ @ @ @ @ police officers in Denver and the nation during recent days ( and before ) , not only vis-à-vis persons of color but against peaceful protesters of all backgrounds , have been disgusting , ” U.S. District Judge R. Brooke Jackson wrote .
Four days after Floyd was murdered , and just before the city ’ s protests coalesced , Austin Police Chief Brian Manley addressed the department in a video posted on YouTube .
He condemned Floyd ’ s killing and noted that Austin residents were hurt and grieving , and he asked @ @ @ @ @ @ @ .
“ Give that extra ounce of care when you ’ re out there , that extra ounce of deference , understanding where we are right now as a society coming to terms with what happened , ” he said .
“ I implore you to exercise patience , and as we tell each graduating cadet class : As you ’ re packing your gear bag for the evening shift , make sure you pack your empathy in there as well.
” That ’ s not how it played out .
The following @ @ @ @ @ @ @ what would become several days of violent clashes after demonstrators shut down Interstate 35 , which slices Austin in half — east and west — and is a monument to the city ’ s racial divide and racist history .
Beyond its borders , Austin enjoys a reputation as a progressive oasis in a sea of Texas , though residents know that isn ’ t entirely accurate .
Allegations of racism , incompetence , and misconduct have long plagued city institutions , including the Austin Police Department .
Between 2005 and early 2017 @ @ @ @ @ @ @ than $ 8 million in settlements related to police shootings .
In 2018 , a group of former police cadets came forward to say that academy instructors had told them they would be punched in the face if they said they wanted to become cops in order to help people .
Others said instructors repeatedly referred to sex workers and the homeless as “ cockroaches ” and suggested targeting homeless individuals for arrest if they were bored while on duty .
Allegations of racist , sexist , and homophobic behavior go straight to @ @ @ @ @ @ @ allowed an assistant chief to resign instead of facing investigation into his ongoing racist attitudes and language , and a subsequent independent investigation revealed widespread internal concern about racism and sexism and a feeling that the department has repeatedly failed to deal with its problems .
“ Reports came to us , from different ranks , races and genders , advising of the fact that the racist and sexist name calling and use of derogatory terms associated with race and sex persists , ” the investigator , San Antonio attorney Lisa Tatum , @ @ @ @ @ @ @ even members of the executive staff over the years had been known to use racist and sexist language , particularly when around the lower ranks or other subordinates.
” It was against this backdrop that police confronted the ongoing protests .
Images and videos show their indiscriminate use of pepper spray , tear gas , and kinetic munitions .
On May 30 , as police tried to move people off the interstate , 16-year-old Brad Ayala stood on a hillside above the highway , apart from the crowd .
He had just gotten @ @ @ @ @ @ @ the city ’ s south side ; he ’ d told his family that he wanted to see history and he would be home soon .
He didn ’ t make it there .
Instead , he was shot in the head with a beanbag round .
Demonstrators immediately rushed to his side , screaming for medical help .
“ We thought he was going to die , ” his older brother , Edwin , told city council members in the special-called meeting held June 5 via Zoom .
Ayala remains at the @ @ @ @ @ @ @ has a fractured skull and permanent damage to his prefrontal cortex ; a recent photo posted to the family ’ s GoFundMe page shows him up and walking with the help of a nurse .
Over the first four days of protests in the city , paramedics responded to 53 calls for medical help .
Twenty-nine of those required transportation to a hospital ; of those injuries , 11 were believed to have been caused by beanbag rounds .
Many were life-threatening , the city ’ s Emergency Medical Services chief told the @ @ @ @ @ @ @ Manley announced that his officers would no longer be permitted to use beanbag rounds to control crowds .
“ It is still an appropriate tool in many other circumstances , ” he said , “ but not in a crowd situation.
” Of course , it ’ s hard to imagine how anyone , let alone the chief , would have thought that firing into a crowd was a good idea in the first place — and the department ’ s general orders suggest that everyone in the department should have understood this @ @ @ @ @ @ @ example , officers are supposed to provide a verbal warning , and they ’ re not supposed to be used at demonstrations “ without the permission of a supervisor ” or when a person is exhibiting “ only verbal and/or passive resistance to arrest or authority.
” Where kinetic munitions are concerned , officers are told that the safety of “ innocent subjects ” and officers “ takes priority ” in the decision to deploy their weapons .
The policy allows for use against those throwing rocks , bottles , or “ other @ @ @ @ @ @ @ singling out an actual aggressor amid the crowds seems to have been impossible for the Austin Police Department .
And before firing , even when they ’ re allegedly being targeted , officers are supposed to consider their proximity to the subject and other environmental factors .
During the council meeting , Manley said that updated orders would forbid firing at someone ’ s head or neck unless lethal force is warranted ; previously , the order read that those areas should not be “ intentionally ” targeted .
Regarding the injuries to @ @ @ @ @ @ @ “ I have come to the conclusion that we have had some results that were not intended.
” Scott Henson , a longtime local agitator for police reform and the author of the influential Texas criminal justice blog Grits for Breakfast , called the APD ’ s actions amid the protests “ jaw-dropping.
” Police have always monitored protests in the city , but they usually involve “ a few cops in their regular uniforms , and they ’ re basically there to hang around the edges , in case something happens , @ @ @ @ @ @ @ “ they showed up in full riot gear from the get-go , and their goal and intention was to enforce compliance , and anyone who didn ’ t just immediately except the most unreasonable command would get shoved around or shot with a beanbag round or sprayed with tear gas.
” For Henson , the department ’ s actions amid the protests were just a more extreme version of the unnecessary use of force they routinely employ in communities of color across the city .
That ’ s exactly what led the April @ @ @ @ @ @ @ .
Ramos was sitting in a car with his girlfriend in the parking lot of his apartment complex when someone called the cops , first saying that it appeared that the couple was using drugs and later alleging that Ramos had a gun .
The police staged a takedown , cornering the vehicle .
The officers raised their weapons , demanding that the couple exit the car .
They complied , but after Ramos questioned why the cops were pointing firearms at them , a rookie cop , just three months out of @ @ @ @ @ @ @ , hitting Ramos , who dove back into his car and tried to get away .
That ’ s when a second officer fired at Ramos with a shotgun , killing him .
According to a report filed with the state , Ramos did not appear intoxicated , and it was “ unknown ” whether he had a weapon .
Norm Stamper , Seattle ’ s police chief during the massive 1999 World Trade Organization protests , knows this well .
There , tens of thousands of protesters took over the streets , @ @ @ @ @ @ @ locking arms , Stamper recently recalled .
The police were certainly outnumbered .
Eventually , the call was made to deploy tear gas .
Stamper signed off .
It was a mistake .
“ I was wrong to bless it , ” Stamper , now a member of the reform group Law Enforcement Action Partnership , told The Intercept .
“ Never use chemical agents against nonviolence and indeed in threatening fellow Americans .
People who are exercising their First Amendment rights .
So you just don ’ t do it .
Yeah @ @ @ @ @ @ @ don ’ t , but what are the odds , really ?
” Amid the WTO protests , he said he should have just let the protesters remain — after all , he said , they wouldn ’ t still be sitting there now ; at some point , they would get up and move on .
He notes that when police are facing crowds that outnumber them , use of chemical or kinetic weapons are effective and people disperse .
But they return , often angry , in response to the police @ @ @ @ @ @ @ they can ’ t stand down — that if they do , they ’ ll look weak .
But that ’ s not the right way to look at it , Stamper says .
“ I ’ ve heard it many times : ‘ Our job is to protect lives and property , and if I ’ m just standing around with my thumb up my ass , I ’ m not doing that .
I need to take action , ’ ” he said .
“ But the bottom line is , @ @ @ @ @ @ @ , jeopardizes more people , endangers individuals , then what I have done needs to be examined for its utility .
Is it useful to provoke people ?
Is it useful to escalate tension , which often times leads to violence ?
And the answer is almost always , no.
” Stamper , who resigned as chief in the aftermath of the WTO protests , said that what he ’ s seen on the streets of U.S. cities amid the recent crisis is upsetting .
“ I am terribly saddened by what I @ @ @ @ @ @ @ like , ‘ Oh , for God ’ s sake , do we never learn ?
’ ” he asked .
“ We never learn lessons there for the taking.
” A split second after Justin Howell was shot in the head on May 31 , protesters ran to his aide , scooping him up and retreating from the front lines of the protest to a highway underpass where volunteer medics were stationed .
But he was in more trouble than they could manage .
One of the medics went back to the @ @ @ @ @ @ @ Howell had been shot in the base of his skull and was convulsing .
Bring him up here , the cops said .
The protesters did .
That ’ s when the police began firing again , straight at the group , hitting Maredith Michael in her hands from roughly three feet away .
News of Howell ’ s shooting spread fast across the city .
400+1 sent out a mass email looking for anyone who knew what had happened to him .
Many people feared he was dead .
In a press @ @ @ @ @ @ @ the police chief , recounted that the cops started firing only after protesters began throwing things at them .
Howell got hit , he said , after a cop missed his intended target , a person standing nearby and threatening to launch a backpack toward the police line .
But video and witness accounts of the incident dispute that ; it appears that no one near Howell was doing anything to provoke the violence .
“ Our focus was on protecting peaceful , free speech , ” Manley said .
“ We are @ @ @ @ @ @ @ family and are hoping that his condition improves quickly.
” Joshua , Howell ’ s brother , was not impressed .
He ’ s a graduate student at Texas A & M University , and the opinion editor of the student newspaper , The Battalion .
On June 3 , the paper published a stinging column he wrote about his brother , the police violence , and Manley ’ s press conference .
“ It ’ s … notable in his briefing how little effort Manley puts into taking responsibility for what happened @ @ @ @ @ @ @ was no apology.
” Instead , Manley just gave details of what happened without acknowledging the harm caused to Justin Howell or to the medics who were trying to get him help .
“ To those protesters , ” Josh Howell wrote , “ My family sees you , and we thank you.
” In an interview with The Intercept , Josh Howell reiterated many of the concerns he expressed in his column , including the combination of incompetence and weaponry that has had near-fatal consequences for his brother .
The fact that @ @ @ @ @ @ @ deeply disturbing , he said , though he doesn ’ t believe the same cops that told them to bring Howell forward are the same ones who fired at them when they did — that “ strains credulity , ” he said — but that doesn ’ t make what happened any better .
“ At a minimum , it shows a lack of awareness of one ’ s surroundings and an inability to manage the situation , ” he said .
“ And when you have all of those factors , in @ @ @ @ @ @ @ ’ this is what can happen .
”

In the video , a volunteer medic and a group of protesters carry Justin Howell, limp and bleeding, toward the Austin Police Department. Just minutes before, he’d been struck in the back of the head by lead pellet-filled “beanbag,” one of the so-called less-than-lethal munitions deployed by police during protests that have filled U.S. streets since the May 25 murder of George Floyd.
Another medic, standing at the front of the crew, has her arms crossed above her head — the Red Cross of the city’s protests — in the agreed-upon signal to communicate with the cops. That signal was unheeded by the officers stationed on the stairs leading up to police headquarters. As the squad approached with Howell unconscious in their arms, the police opened fire, and indiscriminate rounds of beanbag ammunition blazed the crowd. The medic at the front of the squad, Maredith Michael, was hit. Her hands disabled, she fell to the ground.
“What the fuck?” cried a witness.
Howell is 20. He’s a college student at Texas State University, 30 miles south of Austin, where he is studying political science. He’s kind of shy and not prone to unnecessary risk-taking, his brother, Joshua, told The Intercept. “He’s very intelligent, very inquisitive, very quick on his feet.” He’s now in critical condition in an Austin hospital. His skull was fractured. He has a serious brain injury. The road to recovery will be long.
Howell was one of at least two young men gravely injured by the use of less-lethal munitions fired by Austin police on May 30 and 31, the first days of the city’s protests over Floyd’s murder by Minneapolis police officers and the murder of an Austin man, 42-year-old Michael Ramos, on April 24 — a deadly encounter that also began with the firing of lead pellet ammunition.
Video and images of the damage done by less-lethal munitions have swept across social media, again raising serious questions about their use and misuse as tools for crowd control. “These less-lethal munitions are only less lethal by technicality,” Joshua Howell said. “My brother’s condition shows what can happen when you fire them into a crowd. Anything fired out of a shotgun at 90 miles per hour is lethal. Calling them ‘less lethal’ is just fun with words.”
“We Thought He Was Going to Die”
Less-lethal kinetic and chemical weapons rose to prominence during the drug war. And that these munitions regularly cause serious and sometimes fatal injuries is nothing new. Studies have found that both pepper spray and tear gas can cause serious eye injuries and respiratory problems — an issue intensified amid the ongoing coronavirus pandemic. Beanbag rounds have been associated with “significant” abdominal and chest injuries and death. Kinetic projectiles have long caused permanent injury or death, particularly when fired at the head or neck. Tasers have long been identified as lethal — even as proponents have worked overtime to deny that. As the protests intensified, shares of Axon, the company that makes the weapon, spiked.
People demonstrating on the streets, or following along online, don’t need studies to know that less-lethal weaponry isn’t safe — particularly in crowds. In Austin, a pregnant woman named Saraneka “Nemo” Martin was shot in the abdomen and back. So far, her husband has reported, she’s not lost the pregnancy. Another demonstrator, Samuel Kirsch, called into a special Austin City Council meeting to say that he’d been shot in the face while running away from tear gas. The impact broke five bones supporting his eye, which will take complicated surgery to fix.
A protestor wounded by a rubber bullet is treated by his comrades under IH35 in Austin, Texas, on May 30, 2020. Photo: Jeff Newman/picture-alliance/dpa/AP
Amid the protests, head injuries have become shockingly common. In Dallas, Brandon Saenz lost his left eye and seven teeth after police fired a rubber bullet into the crowd; journalist Linda Tirado lost her eye to a police-fired projectile while covering protests in Minneapolis; in Los Angeles, police reportedly shot out the eye of a homeless man with disabilities who protesters have said was not involved in their demonstration — a brutal incident cited in a federal lawsuit filed against the LAPD over its actions amid the protests. Protesters in Denver won a temporary restraining order against police, barring their use of less-lethal munitions. “Some of the behaviors of what I hope and believe to be a minority of the police officers in Denver and the nation during recent days (and before), not only vis-à-vis persons of color but against peaceful protesters of all backgrounds, have been disgusting,” U.S. District Judge R. Brooke Jackson wrote.
Four days after Floyd was murdered, and just before the city’s protests coalesced, Austin Police Chief Brian Manley addressed the department in a video posted on YouTube. He condemned Floyd’s killing and noted that Austin residents were hurt and grieving, and he asked his officers to keep that in mind. “Give that extra ounce of care when you’re out there, that extra ounce of deference, understanding where we are right now as a society coming to terms with what happened,” he said. “I implore you to exercise patience, and as we tell each graduating cadet class: As you’re packing your gear bag for the evening shift, make sure you pack your empathy in there as well.”
That’s not how it played out. The following day, police in riot gear began what would become several days of violent clashes after demonstrators shut down Interstate 35, which slices Austin in half — east and west — and is a monument to the city’s racial divide and racist history.
Beyond its borders, Austin enjoys a reputation as a progressive oasis in a sea of Texas, though residents know that isn’t entirely accurate. Allegations of racism, incompetence, and misconduct have long plagued city institutions, including the Austin Police Department. Between 2005 and early 2017 alone, the city paid out more than $8 million in settlements related to police shootings. In 2018, a group of former police cadets came forward to say that academy instructors had told them they would be punched in the face if they said they wanted to become cops in order to help people. Others said instructors repeatedly referred to sex workers and the homeless as “cockroaches” and suggested targeting homeless individuals for arrest if they were bored while on duty. Allegations of racist, sexist, and homophobic behavior go straight to the top. Last year, Manley allowed an assistant chief to resign instead of facing investigation into his ongoing racist attitudes and language, and a subsequent independent investigation revealed widespread internal concern about racism and sexism and a feeling that the department has repeatedly failed to deal with its problems. “Reports came to us, from different ranks, races and genders, advising of the fact that the racist and sexist name calling and use of derogatory terms associated with race and sex persists,” the investigator, San Antonio attorney Lisa Tatum, reported. “Anecdotal history indicated that even members of the executive staff over the years had been known to use racist and sexist language, particularly when around the lower ranks or other subordinates.”
Over the first four days of protests in the city, paramedics responded to 53 calls for medical help.
It was against this backdrop that police confronted the ongoing protests. Images and videos show their indiscriminate use of pepper spray, tear gas, and kinetic munitions. On May 30, as police tried to move people off the interstate, 16-year-old Brad Ayala stood on a hillside above the highway, apart from the crowd. He had just gotten off work at a sub shop on the city’s south side; he’d told his family that he wanted to see history and he would be home soon. He didn’t make it there.
Instead, he was shot in the head with a beanbag round. Demonstrators immediately rushed to his side, screaming for medical help. “We thought he was going to die,” his older brother, Edwin, told city council members in the special-called meeting held June 5 via Zoom. Ayala remains at the local children’s hospital. He has a fractured skull and permanent damage to his prefrontal cortex; a recent photo posted to the family’s GoFundMe page shows him up and walking with the help of a nurse.
Over the first four days of protests in the city, paramedics responded to 53 calls for medical help. Twenty-nine of those required transportation to a hospital; of those injuries, 11 were believed to have been caused by beanbag rounds. Many were life-threatening, the city’s Emergency Medical Services chief told the city council.
During the meeting, Manley announced that his officers would no longer be permitted to use beanbag rounds to control crowds. “It is still an appropriate tool in many other circumstances,” he said, “but not in a crowd situation.”
Of course, it’s hard to imagine how anyone, let alone the chief, would have thought that firing into a crowd was a good idea in the first place — and the department’s general orders suggest that everyone in the department should have understood this. Before using chemical agents, for example, officers are supposed to provide a verbal warning, and they’re not supposed to be used at demonstrations “without the permission of a supervisor” or when a person is exhibiting “only verbal and/or passive resistance to arrest or authority.”
Where kinetic munitions are concerned, officers are told that the safety of “innocent subjects” and officers “takes priority” in the decision to deploy their weapons. The policy allows for use against those throwing rocks, bottles, or “other dangerous projectiles” at police, but singling out an actual aggressor amid the crowds seems to have been impossible for the Austin Police Department. And before firing, even when they’re allegedly being targeted, officers are supposed to consider their proximity to the subject and other environmental factors. During the council meeting, Manley said that updated orders would forbid firing at someone’s head or neck unless lethal force is warranted; previously, the order read that those areas should not be “intentionally” targeted.
Regarding the injuries to protesters in Austin, Manley said, “I have come to the conclusion that we have had some results that were not intended.”
Lessons Not Learned
Scott Henson, a longtime local agitator for police reform and the author of the influential Texas criminal justice blog Grits for Breakfast, called the APD’s actions amid the protests “jaw-dropping.” Police have always monitored protests in the city, but they usually involve “a few cops in their regular uniforms, and they’re basically there to hang around the edges, in case something happens,” he said. This time, “they showed up in full riot gear from the get-go, and their goal and intention was to enforce compliance, and anyone who didn’t just immediately accept the most unreasonable command would get shoved around or shot with a beanbag round or sprayed with tear gas.”
For Henson, the department’s actions amid the protests were just a more extreme version of the unnecessary use of force they routinely employ in communities of color across the city. That’s exactly what led to the April killing of Michael Ramos, he said. Ramos was sitting in a car with his girlfriend in the parking lot of his apartment complex when someone called the cops, first saying that it appeared that the couple was using drugs and later alleging that Ramos had a gun. The police staged a takedown, cornering the vehicle. The officers raised their weapons, demanding that the couple exit the car. They complied, but after Ramos questioned why the cops were pointing firearms at them, a rookie cop, just three months out of the academy, fired a beanbag round, hitting Ramos, who dove back into his car and tried to get away. That’s when a second officer fired at Ramos with a shotgun, killing him. According to a report filed with the state, Ramos did not appear intoxicated, and it was “unknown” whether he had a weapon.
Thousands of protestors march down Congress Avenue in Austin, Texas on June 7,2020. Photo: Jeff Newman/picture-alliance/dpa/AP
Responsibility for deaths like Ramos’s and for the recent protests becoming dangerous belongs to the police, Henson said. “Showing up in the most confrontational fashion, if you’re the cops, invites protest defiance.”
When police are facing crowds that outnumber them, use of chemical or kinetic weapons are effective and people disperse. But they return, often angry, in response to the police escalation of violence.
Norm Stamper, Seattle’s police chief during the massive 1999 World Trade Organization protests, knows this well. There, tens of thousands of protesters took over the streets, closing down busy intersections by sitting and locking arms, Stamper recently recalled. The police were certainly outnumbered. Eventually, the call was made to deploy tear gas. Stamper signed off. It was a mistake. “I was wrong to bless it,” Stamper, now a member of the reform group Law Enforcement Action Partnership, told The Intercept. “Never use chemical agents against nonviolence and indeed in threatening fellow Americans. People who are exercising their First Amendment rights. So you just don’t do it. Yeah, something terrible could happen if you don’t, but what are the odds, really?”
Amid the WTO protests, he said he should have just let the protesters remain — after all, he said, they wouldn’t still be sitting there now; at some point, they would get up and move on. He notes that when police are facing crowds that outnumber them, use of chemical or kinetic weapons are effective and people disperse. But they return, often angry, in response to the police escalation of violence. Cops often say they can’t stand down — that if they do, they’ll look weak. But that’s not the right way to look at it, Stamper says. “I’ve heard it many times: ‘Our job is to protect lives and property, and if I’m just standing around with my thumb up my ass, I’m not doing that. I need to take action,’” he said. “But the bottom line is, if what I do intensifies the conflict, jeopardizes more people, endangers individuals, then what I have done needs to be examined for its utility. Is it useful to provoke people? Is it useful to escalate tension, which often times leads to violence? And the answer is almost always, no.”
Stamper, who resigned as chief in the aftermath of the WTO protests, said that what he’s seen on the streets of U.S. cities amid the recent crisis is upsetting. “I am terribly saddened by what I’m seeing. It’s like, ‘Oh, for God’s sake, do we never learn?’” he asked. “We never learn lessons there for the taking.”
No Apologies
A split second after Justin Howell was shot in the head on May 31, protesters ran to his aide, scooping him up and retreating from the front lines of the protest to a highway underpass where volunteer medics were stationed. But he was in more trouble than they could manage. One of the medics went back to the police line in front of headquarters; Howell had been shot in the base of his skull and was convulsing. Bring him up here, the cops said. The protesters did. That’s when the police began firing again, straight at the group, hitting Maredith Michael in her hands from roughly three feet away.
News of Howell’s shooting spread fast across the city. 400+1 sent out a mass email looking for anyone who knew what had happened to him. Many people feared he was dead.
In a press conference streamed on Facebook, Manley, the police chief, recounted that the cops started firing only after protesters began throwing things at them. Howell got hit, he said, after a cop missed his intended target, a person standing nearby and threatening to launch a backpack toward the police line. But video and witness accounts of the incident dispute that; it appears that no one near Howell was doing anything to provoke the violence.
It appears that no one near Howell was doing anything to provoke the violence.
“Our focus was on protecting peaceful, free speech,” Manley said. “We are praying for this young man and his family and are hoping that his condition improves quickly.”
Joshua, Howell’s brother, was not impressed. He’s a graduate student at Texas A&M University, and the opinion editor of the student newspaper, The Battalion. On June 3, the paper published a stinging column he wrote about his brother, the police violence, and Manley’s press conference. “It’s … notable in his briefing how little effort Manley puts into taking responsibility for what happened,” he began. “There was no apology.” Instead, Manley just gave details of what happened without acknowledging the harm caused to Justin Howell or to the medics who were trying to get him help. “To those protesters,” Josh Howell wrote, “My family sees you, and we thank you.”
In an interview with The Intercept, Josh Howell reiterated many of the concerns he expressed in his column, including the combination of incompetence and weaponry that has had near-fatal consequences for his brother. The fact that the cops fired on the medics is deeply disturbing, he said, though he doesn’t believe the same cops that told them to bring Howell forward are the same ones who fired at them when they did — that “strains credulity,” he said — but that doesn’t make what happened any better. “At a minimum, it shows a lack of awareness of one’s surroundings and an inability to manage the situation,” he said. “And when you have all of those factors, in combination with these ‘less-lethal rounds,’ this is what can happen.”