The Eighth Street Survivors
They came out to protest police brutality. They were met by a life-altering wave of police violence. Eight months later, they still await justice and change.
By Brant Bingamon, Fri., Feb. 5, 2021
Editor's note: This story has been updated since publication with new information concerning the shooting of Justin Howell.
"I don't mind talking about how it's affecting me, I don't mind talking about the surgeries I've been through. But running through the actual memory of being shot, and right after being shot – that's really difficult."
There's a lot that Sam Kirsch would rather talk about. The origins of policing, the evolution of the civil rights movement – anything other than what happened on May 31, 2020. But Kirsch knows his story will bring attention to the Black Lives Matter movement, to the violence against Black and brown citizens that he believes is an inseparable part of police culture. He feels he has to tell it.
Kirsch was one of hundreds of demonstrators who converged on Downtown Austin over the weekend of May 30-31, to stand against the police killings of George Floyd and, locally, Mike Ramos. These protesters, most in their teens and 20s, repeatedly put their bodies on the line, bellying up to rows of police guarding Austin's police headquarters on Eighth Street and streaming onto the adjacent Interstate 35 – the wall between East and West that symbolizes Austin's historic and systemic racism and segregation – to shut it down.
In response, APD gassed them by the dozens, if not hundreds. Officers shot them with crowd-control munitions, so-called "less lethal" lead-pellet rounds. They sent 29 to emergency rooms with serious injuries. At least 10 were shot in the head. Many are still dealing with the trauma today. It's been said before but it bears repeating: The Austin Police Department's response to the George Floyd protests was among the most extreme and violent in the nation.
Sam Kirsch
Kirsch, 26, moved to Austin from Rhode Island in the summer of 2019 to take a job at a culinary consulting company. Nine months later COVID-19 hit and he was out of work. Then George Floyd was suffocated by Minneapolis police. "I have always been extremely skeptical of authority and of police," Kirsch said. "So when I saw that there were protests being organized in Austin, I knew that I had to at least come and try to be a positive presence."
So it was that Kirsch ascended to the northbound lanes of I-35 around 4pm on May 31, and sat down. Thirty protesters, strangers, sat with him on the front line. Across a concrete barrier, on I-35's southbound lanes, were another 30, and behind both groups were many more. Arrayed before the protesters were scores of Austin police stretching across all six lanes and down the shoulders, outfitted in all-black tactical riot gear.
Drone video on YouTube shows what happened next. Police explode tear gas and smoke bombs. A canister rolls toward Kirsch's feet. He and those around him, the size of ants from the camera's perspective, rise and flow toward a grassy slope adjoining the access road.
"The drone video is really interesting to watch, because it's a very different perspective from what I was seeing," Kirsch said. "It's not what it felt like. When you're right there it's a very intense moment and you're not really aware of your peripheral surroundings. There was a tear gas canister that was launched directly at my feet. And that was definitely a moment that sort of kicks in your instincts."
Kirsch was one of the last to make it to the grassy hill. As he took a half-second to glance back, either a foam grenade or a lead-pellet round smashed into his face. He hit the ground, screaming "Medic!"
"I wasn't really sure my eye was still in the eye socket. There was blood all over my shirt and backpack and running down my face. And it was like a lot of blood and it didn't feel like it took a lot of time to bleed, so I knew it was very serious."
Protesters raced Kirsch to Dell Seton Medical Center, a few blocks away, in a private car. There he underwent the first of three surgeries he's thus far endured. "They had to do reconstructive surgery. My nose broke, the orbit[al bone around his eye] broke, the maxilla [upper jaw] was completely smashed ... They basically rebuilt the shape of the face with metal. And the recovery was far worse than the actual shot. I mean the recovery in the hospital – that pain was just enormous."
Kirsch still feels pain every day, but his left eye is his main concern. About half of the field of vision is gone, and what's left is distorted and doubled. He wears an eyepatch to read. His depth perception is ruined; he finds himself tripping and knocking things over. He's also worried about the right eye; if anything should ever happen to it, Kirsch will be legally blind.
Rebecca Webber of Hendler Flores Law took Kirsch's case a month after the shooting. She's also the attorney for the estate of Mike Ramos, the unarmed Black and Latino man who was killed by APD in April 2020 and whose name became a rallying cry for Austin's BLM movement. Webber is a native Austinite who earned a law degree from Yale University, then returned home to work and raise a family.
"He may end up with a glass eye," she said. "He'll have pain, and in lawyer terms, we say he's 'permanently disfigured.' He's still a good-looking guy but ... he's not at all at the end of the healing process and seeing how bad it is yet."
Webber has filed a lawsuit for Kirsch, naming the city and "John Doe" as defendants, as the APD officer who shot her client still has not been identified. She says the officer violated several of Sam's rights, especially his right to free speech. "It was so clearly in retribution for being there that day. He was running away. He was obeying the command to disperse as fast as he could. And he was shot as he had already left the highway. He runs east up a steep grassy median and that's where he falls, that's where they shoot him. He's not threatening anyone. He's following police orders. They shot him in retribution."
Kirsch's injuries are emotional as well as physical; he says he understands how being shot would make a person turn away from the cause. He thinks that's what police were trying to do. "APD wanted to make an example of me and other people," he said. "They wanted to show that they have power over us and they wanted to suppress the protests. Just to understand: That's what's going on."
Of course, Kirsch will not be quiet. "If anything, I feel a greater responsibility to do something now. Because I have a platform and an ability to speak out about stuff, so I'm definitely not shying away from it. Yeah, I think there's a lot that people need to understand. You know, institutional racism and violence from police are not new, they're done intentionally, and they start at the origins of policing."
Justin Howell
Ten million people have seen the video shot by David Frost outside APD headquarters on the evening of May 31. As the clip begins, volunteer street medics are shuffling Justin Howell's limp body toward APD, two on either side and one at his feet. Another medic, Maredith Drake, is momentarily visible, weaving before them, her arms held up in a cross. As they get within 30 feet of the building, officers standing on the raised plaza fire a volley of shots toward the group, seven or more over two seconds. The medics crouch; they almost drop Howell. Voices scream, "What the fuck!" "We're trying to get help!"
Moments earlier, Howell, a 20-year-old college student from San Marcos, had been recording the demonstration on his cell phone. He was part of a crowd of hundreds filling the road between APD headquarters and the I-35 bridge over Eighth Street. A protester standing beside him threw a water bottle at the police line, then a backpack. An officer fired back. The bullet caught Howell in the side of the head, and he fell to the pavement. (This officer was identified as Kyle Felton in previous reporting; according to the Travis County District Attorney's latest update regarding cases involving local law enforcement, Officer Jeffrey Teng is also under investigation in this incident.)
Howell had been hit by a lead-pellet round, a type of crowd-control munition. These bullets are often called "beanbag rounds" but there's nothing soft about them – they're mesh bags filled with No. 9 shot, as is a shotgun shell, and are fired from modified shotguns. They expand as they fly, hitting with the force of a baseball bat. They're not designed to kill but they can; a 2017 study showed that 3% of those hit by lead-pellet rounds suffer fatal injuries, and another 15% are left with permanent disabilities.
The next day, police Chief Brian Manley admitted at a press conference that the story protesters were telling was true. An officer had shot Howell in the head; officers had then fired on the street medics trying to help him; Howell was in a coma at Dell Seton, fighting for his life. Asked what he would say to Howell's family, Manley placed a forefinger to his lips and fought back tears. Finally, he replied: "What I say to you now is my heart is with you. I'm praying for your child."
In a column in The Battalion, the Texas A&M student newspaper that he edits, Justin's brother Joshua spoke for him. He pointed out that Manley hadn't taken responsibility for the shooting. "No, reader, I haven't omitted the part of Manley's statement where he seems contrite. There was no apology. Instead, he sat at his desk for three full minutes, gave us the details above, and at no point apologized to my brother, my family, or the five brave protesters who carried Justin to police headquarters under fire.
"And what is somehow worse, Manley concludes his remarks by saying: 'We are praying for this young man and his family and we're hoping that his condition improves quickly.'
"To which my family, a deeply religious one, says this: We aren't interested in your prayers. We are interested in you appropriately using the responsibilities with which the people of Austin have entrusted you. Prayer is not an excuse to abdicate responsibility."
Joshua Howell went on to describe his brother's condition: His skull was fractured, he had brain damage, and doctors had placed him on a ventilator.
Howell's case has been taken by Aaron Von Flatern and Jeff Edwards. The latter, a personal injury attorney, is something of a crusader, taking and winning cases involving wrongful imprisonment, deaths in jails and nursing homes, sexual abuse of minors in state care facilities, and police shootings. Last summer, he took the case of Javier Ambler, the Round Rock man who was chased by police in March 2019 for failing to dim his headlights, then pulled out of his car and shot with a Taser gun until he died. Edwards represents nine people injured by police in last summer's protests.
"Dealing with a brain injury is incredibly difficult," Edwards said. "Justin spent three weeks in the ICU and suffered delirium, where he was terrified and believed he was being harmed while not conscious. It's a well-known consequence when someone has to spend significant time on a respirator."
"He had to undergo brain surgery and has suffered impairment."
Since getting out of the hospital, Howell has done weeks of neurological rehab. He has been unable to return to his studies at Texas State. He has flashbacks and nightmares. The shooting remains a difficult subject for his family, who were terrified he would die in the hospital. "Justin is struggling every day, trying to cope with the emotional and physical effects of his injury," Edwards said, "and likely will for the rest of his life."
Edwards emphasizes that the responsibility for what happened to Howell rests with those at the very top. "This happened because of an absolute failure of leadership," he said. "The senior people at the Austin Police Department knew this was happening and endorsed it.
"You have what happened on May 30, which was difficult to believe and fathom. And then 24 hours later, it's happening again. With the permission of the supervisors and presumably the chief of police. Now there's a memo that came out [in December] that said they're going to discipline several of these officers. But I'd be shocked if they discipline the people they really need to discipline – which is the seven highest ranking officers of the Austin Police Department."
Anthony Evans
As Sam Kirsch was waiting for his first surgery, Anthony Evans and his twin brother, Arthur, headed Downtown.
Anthony and Arthur are 26-year-old native Austinites, part of a loving African American family that taught them to value compassion and hard work. "We felt compelled to go down there," Anthony Evans said. "It's not just about Black people. We genuinely wanted to shed light on all the people who are being oppressed, in some way or form, by the system. We were talking to people and just voicing our mind to police officers. We wanted the police to understand that it's not us against them, but that we just want to be seen and heard."
Anthony and Arthur spent the evening talking to the officers guarding APD headquarters. Around sundown they became separated. Anthony looked for his brother at the Capitol, then returned to APD. The scene was tense. Rows of police stood on the I-35 bridge at Eighth Street, their guns pointed down into the sea of protesters. The angriest of those were squared up in front of the cops on the steps at the APD entrance, demeaning them, insulting them.
Seeing that the time for dialogue was over, Anthony Evans decided to go. He began jogging away, his arms raised. Then, like Sam Kirsch, he turned his head to look back one more time. A lead-pellet round slammed into his jaw, knocking him to the ground. It had been fired by Kyle Felton.
The impact of the bullet smashed Evans' lower jaw to pieces. He picked himself off the ground and ran for home, fearing for his life. His thoughts went to his family. "I had a moment when I accepted that I might die without my family ever knowing what really happened," he said. "I had to tell myself that everything was going to be okay and, if you die, your family knows that you are an amazing spirit, and that I love them."
When he made it home, his brother Arthur was there waiting; his heart broke upon seeing Anthony's face. Evans was admitted to Seton Medical Center on 35th Street, where doctors put a metal plate over his jaw and wired it shut for two-and-a-half months.
As Evans rested in the hospital, Manley held his press conference. He admitted that innocent demonstrators had been shot but defended APD's reaction in general because violent protesters had "infiltrated" the demonstrations, throwing rocks and water bottles. He said that blocking the highway was a grave threat to all of Austin's safety and noted that 15 officers had been injured by flying objects, or had twisted their ankles.
Manley's defense notwithstanding, APD later placed five, and then seven, officers on administrative leave as the events were investigated. In December, approaching the 180-day deadline imposed by Texas civil service law for Manley to act on officer misconduct, the department announced 11 officers had been disciplined for attacking protesters, and that the Travis County District Attorney's Office was investigating seven cases. The disciplined officers were not named. The discipline itself was not revealed. None of the misconduct was described. As of this writing, no additional information has come from APD. But on Jan. 14, new District Attorney José Garza announced the names of 11 officers who are being investigated for shooting protesters. (One of them, alleged to have wounded Maredith Drake as she tried to carry Justin Howell to safety, was indicted last week for aggravated assault in a different case, in connection with the alleged beating of a suspect in 2019.)
The months with his jaw wired shut were difficult ones for Anthony Evans. But what came after was worse. "Unfortunately, my jaw did not heal correctly," he said. "You could see the metal through my skin, which caused an infection. They had me on the antibiotics in order to clear the infection, so I had to be in the hospital for about 11 days.
"For the latest surgery, they put a metal bar on the outside of my jaw, which just looks like a metalhead coming out of my cheek. Then, I had to have another surgery to get the bar out of my face. After that, they let my face heal on its own for weeks but I had to go back again for surgery that required me to not eat. They transferred bone marrow from my hip into the left side of my jaw. The amount of pain I felt in my leg was insane."
Evans has been diagnosed with post-traumatic stress disorder. He's highly anxious, unable to sleep. "I just do not feel normal going out," he said. "I feel like I am being watched and that I can't trust the police."
Evans has more hospital visits ahead. But, like Kirsch, he vows to stay engaged. "I don't know what my life is going to be like in the future, but I do know I'm taking it one day at a time, with love in my heart. This could've happened to anyone and has been happening to so many people. It just needs to stop and I hope to do what I can to achieve that."
Brad Levi Ayala
The video of Brad Levi Ayala's shooting was taken from a distance and is only seconds long. Like the video of Sam Kirsch's shooting, it has a clinical, alien quality: A figure stands alone, motionless, hands in his pockets, on the side of a hill. Then he collapses to the ground.
On May 30, Levi Ayala had just turned 16 and begun working at a sandwich shop in South Austin, saving up to buy a car. His older brother, Edwin, had recently graduated from UT with a degree in Latin American studies. Edwin had taken classes on systemic racism; he and Levi had discussed the transformation taking place in society over race and policing. Edwin had predicted that Austin would be right in the middle of things. When the protests broke out, he texted Levi to tell him that protesters had shut down the highway.
After hearing from his brother, Levi decided to take a look. He got off the bus Downtown around 4pm and made his way to the hill on the east side of I-35 at Eighth Street, below the Tyndall condos, near the spot where Sam Kirsch would be shot 24 hours later. There, he stood watching the surreal scene unfold: Police chased protesters off the northbound lanes, exploding tear gas, firing methodically. Standing on the highway at least 100 feet away, APD officer Nicholas Gebhart, or perhaps his colleague John Nicklason, raised his gun and shot Ayala in the forehead.
Protesters surged up the hill. They pulled Ayala to a seated position, realizing that a lead-pellet round was embedded in his forehead. Ayala was stunned, limp, he could not speak. Blood spilled down his face onto his work shirt and pants. The protesters lifted him and carried him to police. The officers loaded him into an ambulance.
At an emergency City Council meeting on June 4, which featured 12 hours of testimony from traumatized and enraged Austinites, Edwin Ayala spoke through sobs, describing what he and the family had gone through at Dell Children's Medical Center as surgeons operated on his brother through the night. "They told us he had a puncture in his head. And the risks wouldn't be known until he got into the surgery. So we didn't know, they started the surgery at 11pm, we just didn't know. We thought he was going to die. Because there's a vein that was at risk of being punctured. That was the hardest decision. I was there with Mom. We prayed all night."
It took doctors seven hours to remove the bullet from Levi's skull, clean the wound, install a titanium plate, and graft skin over the hole. Levi's family stayed at his side as he fought through the pain, which was amplified by the injury to his prefrontal cortex, a part of the brain that helps control emotion. By the time Edwin spoke to Council, he'd kept vigil beside his brother for five days. "He's in so much pain," he sobbed, "and I can't help him."
Council, City Hall executives, and Manley and his top brass heard testimony from 300 people during that meeting. Many used the term "warlike" to describe the scenes they'd witnessed. Council Member Greg Casar confronted Manley, demanding that he take a stand on lead-pellet rounds. Manley reversed his assertions from days earlier and declared that they would no longer be used for crowd control. However, as was pointed out by speakers and CMs, Ayala had not been in a crowd.
Casar later said that Edwin Ayala's testimony convinced a unanimous Council of the need for dramatic change at APD. Two months later, the council voted to reduce APD's budget by 4% and to begin reallocating more funding to other, less violent means of securing public safety. These choices have antagonized the police union, Manley and his executive team, and state GOP leaders ever since.
It's been eight months since Levi was shot, and his recovery is proceeding. His lawyer, Dicky Grigg, spoke for him: "We are very pleased with how he's doing. He's back at work at the sub shop and he's attending school virtually. So he seems to be able to handle both of those activities okay. Now, what we're obviously concerned with is, what will the long-term effects be?"
Grigg has yet to file a lawsuit for Ayala and his family. When he does, it will be the start of a journey that could take five years or more, bouncing from court to court as judgments are appealed. "These are very difficult cases. Hell, I'll probably be in a nursing home when I collect any money on this case, if we're successful. But some cases, win, lose, or draw, you gotta take 'em. And Levi's case is one of 'em."
Grigg has practiced law in Travis County since the 1970s. Though he's mostly worked as a personal injury attorney, he's taken civil rights cases – defending inmates in Guantanamo and people of color who've been hurt or killed by APD. He's seen a lifetime of police brutality cases pass by. We wanted to know if, after observing APD's behavior for half a century, Grigg was surprised by their response on May 30-31.
Speaking in a scratchy West Texas drawl that carried his words just above a whisper, he said, "I guess my answer would be yes and no. Of course, the police were put in a very difficult situation. But when you look at Levi's case, and you've seen the video I assume – there's no reason for that. There's no reason for an officer to shoot him. Because as you can see, he's standing there a good distance away, hands in his pockets." Grigg lowered his voice further and slowed his words for emphasis: "He's not a threat to anyone."
And Many Others
"If you tried, you couldn't have done more damage to the police department, and what people will think of them, than blatantly using excessive force at a rally to condemn excessive force. The irony is dripping here."
You can talk to Jeff Edwards for close to an hour but his focus will never wander. He returns again and again to a central message: The responsibility for what happened on May 30-31 rests with those at the top.
"This isn't complex. This is [Manley saying], 'On May 30, I knew my officers were firing into crowds as a dispersal tactic. I knew that the use of that tactic hurt a lot of people, and caused at least one person to suffer a serious brain injury, a head trauma, that was on YouTube.' So, knowing that, and knowing that there's a protest the next day, nothing was done differently. In fact, [APD] doubled down and did it again."
Levi Ayala was shot by police on May 30. So were Bomani Barton, an Austin musician shot in the face, hip, and arm; Saraneka Martin, seven weeks pregnant, shot in the stomach; street medic Steven Arawn, shot in the forearm; and Nikki Underwood, shot in the chest. Dozens of others were shot, clubbed, tear-gassed, and pepper-sprayed.
Sam Kirsch, Anthony Evans, and Justin Howell were shot the next day. So were Arianna Chavez, shot in the head; Christen Warckocjewski, shot in the face; Maredith Drake, the street medic trying to save Howell's life, shot in the hand; Joe Herrera, an Iraq War veteran shot in the thigh; and Traci Cades, a 51-year-old grandmother visiting from Michigan, shot in the arm. Many of these people have already filed lawsuits for physical and emotional damages. If the suits are successful, the payouts from the city – ultimately, Austin taxpayers – will probably reach into the tens of millions of dollars.
Edwards believes the lawsuits are necessary but hopes their settlement won't be the end of the story. He wants to see APD jolted into changing its ways. "You know, I've represented numerous victims, Black families whose kids were shot by the police," he said. "And what happens is, there's an outcry, the city pays a sizable settlement – and nothing changes. It doesn't solve a problem to pay money to a family that's been victimized. It is nice that they do that, it's necessary that they do that, but it doesn't solve the problem of deterring it in the future."
So far, justice advocates see no sign of such changes, as APD responds to the call for accountability much as it has in the past. For example, the department has refused to release video from cameras worn by APD officers during the demonstrations. Weeks before the protests, APD had announced a new policy to release body-camera video from violent interactions within 60 days of an incident, or to explain why such disclosure is delayed. It's been eight months. None of the protest footage has been seen.
"The very first case that fell under that policy was the Mike Ramos case, which they completely biffed," Webber said. "That didn't come out on the timeline" – initially, APD tried to rush-release edited "critical incident" footage that hadn't been vetted by the Office of Police Oversight, and then had to backtrack. "And then they didn't even try with this protest footage. Where is it? We have a right to hear what they were saying while they were shooting people. That is public information that we own."
Webber also wants to know why the officers who shot protesters still have their jobs. Although APD has completed its investigations into who did what, Manley says he's waiting for the Travis County D.A.'s Office to finish its own investigations before announcing discipline. This is a continuation of a strange agreement that he had with former D.A. Margaret Moore; Garza, who defeated Moore in last year's primary run-off six weeks after the May 30-31 protests, has asked Manley to proceed with appropriate discipline.
"Why haven't these men been arrested?" Webber asks. "The fact that Chief Manley, 1) allows these officers to not be under an indictment – like anyone else who shot someone would be – and, 2) has delayed discipline, to me is cowardly. You can quote me. It's cowardly of him to lay behind the log, wait to see whether José is going to get an indictment, wait to see whether José gets a conviction, before he decides whether to fire these people. He can decide now. There is no information missing."
The biggest question of all may be why Manley still has his job. Even before the protests, community leaders were calling for him to be fired. After the protests, a unanimous Council approved a resolution expressing "no confidence" in Manley's leadership. But by state law, Council has no authority to fire a police chief. City Manager Spencer Cronk can demote Manley and install another chief in his place but has declined to do so, in part because there is no obvious successor. This has led to community calls for Cronk's ouster – which Council can do – and, indirectly, has fueled the citizen initiative to amend Austin's charter to give a "strong mayor" power to make these calls, which is likely to be considered by voters in May.
Most observers expect that individual officers, not Manley and his assistants, ultimately will take the fall for the shootings. "This upsets me on behalf of police officers, who do have a hard job, and, yes, it's a thankless job," Webber said. "Yes, there's injustice there too. They're pinning this on the lowest person they can find, which is going to be the shooter. But what about the supervisor, who was standing right behind him and told him to start shooting?"
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