Eyewitness to a Kick

[Editor’s Note: One month ago, the following letter was submitted to the Austin American Statesman

by Texas Civil Rights Review Associate Editor, Tony Gallucci. See further correspondence with the

Austin City Manager below.–gm]

Austin American-Statesman
28 November



This latest followup story on the Austin Police Department

comes at a conflicted time for me with regards to a recent incident I witnessed involving the

department. I have a lot to say.

I live 2+ hours outside of Austin, but visit frequently

(2-3 times a month) for professional and recreational reasons. On a visit a couple of weeks ago I was

waiting on Sixth Street to unload equipment. A man was asleep/passed out in the portal of a closed club

within a few feet of where I was waiting.
He appeared to have not bathed or changed clothes in some

time. Judge that as you may.

While I was waiting, a police car stopped in the street on

Sixth, the overhead lights were turned on, and two officers emerged from the vehicle and approached the

man. One of the officers walked up to him and kicked him in the leg. This was neither a nudge to awake,

nor a tentative touch to avoid contact with the obviously dirty man. It was a kick. I heard


Simultaneously, the second officer walked to near the man’s head. There was a can of beer

in a paper sack next to his head. This officer put his foot on the top edge of the can and tipped it

over spilling it on the man’s face. That awoke the man, and the second officer said “Oh, I’m so sorry”

with a strongly condescending tone. The man sat up, picked the can up and set it upright. The first

officer said, “Get the hell out of here.” The man stood up and left without saying a


I was stunned. And momentarily speechless. ‘Who do I call,’ was my first internal

reaction. ‘The police?’ I thought. This was the police. Finally I said to the officers, “I resent what

you just did. It was inhuman and uncalled for.” I was told I could leave too. Then they got in their

car and drove away.

I have battled with myself over this for the last couple of weeks. I

have friends in several PDs, including APD, good cops, who I do not want to either offend or denigrate,

however, I must, to start, counter the ‘we all got in this because we wanted to save the world’ tone of

AAS published letters from policemen. I know plenty who would tell you themselves, even though they all

consider themselves part of a noble profession today, that they grew into that, that the reasons they

became cops to begin with were not often quite so noble – they needed jobs to pay mortgages, they did

not succeed in their intended professions, the money was good, they were shiftless and lost, their

cousin talked them into it, or they came from military service ill-prepared for re-immersion in the

“real” world.

Unfortunately, most people realize this about police – only they

themselves seem to think this self-justification reconciles something with the public. In fact, we do

not need such such shallow apologetics in order to appreciate the dangerous work they do, nor their

initiative in doing so.

So, partly because of friends, partly to avoid being labeled

‘anti’ anything I’m not, I tried to let this incident pass. I find myself unable to, because even

though it does not involve deadly force, it spoke volumes to me about an inherent attitude that I

believe can lead to excessive behavior by some police.

I thought about complaining to APD

but knew neither cops’ name nor that of the man, and figured it would be fruitless. I realize now that

I should have asked for their names. Should’ve, would’ve, could’ve, didn’t. Being out of town made it

seem less likely I could do whatever would be necessary to see a complaint through, if a complaint

would even be considered on something I fear would likely be dismissed as trivial. It was, and is,


I did enough research into this to have run across Austin’s recent ranking as one of

the “ten meanest cities in America,” the only Texas city in the top ten, or twenty. It recurs to me:

What if a policeman had been standing where I was and some fraternity student had walked up and kicked

that man the same way. I imagine that guy would be in jail for assault. What’s the difference? Is the

badge a legitimate difference?

I know this: I lost respect for those cops that night,

and by extension for Austin cops, as that kind of intimidation and humiliation must be regular

practice, if not policy. After all, it was in full public view, not administered Hollywood-style in

some alleyway or dank interrogation room. Moreover, I felt at the time that it was a kind of blatant

showing off for the few of us there to witness it. A kind of ‘Look, we’re taking care of you, the

public, when we kick this guy and treat him like this.’

Maybe I grew up in an America

that doesn’t exist anymore, where we learned something about right and wrong even if we weren’t perfect

about practicing it, and expected certain folks – police, say – to be the ultimate representatives and

models of that; maybe I idealistically believe that cops are still supposed to be the good guys; maybe

inside I want to believe that, though I know there are bad-apple cops, for the most part they are good

-hearted, All-American types, with families and mortgages, and a personal American dream that includes

the melting-pot world we are.

But now, here are the very guys who, because of their

appointed or chosen rounds in the more difficult areas of town, have to be the most professional, the

most disciplined of all, and instead, at least on this one evening (about 7 p.m. on an off-night, with

few people on Sixth), they exhibited the very type of arrogant disdain for humanity that gains all cops

a bad reputation, the kind difficult to dispel or disprove, the kind that, institutionalized, by itself

can lead to that very above the law culture that results in hardcore disparities in racial treatment,

the overuse of force, even rogue units.

Or am I mistaken? Do police, in fact, get to

choose who to treat as human? Do they get to use force against sleeping drunken people as if they were

breaking up a brawl of drunken college students? I don’t actually believe they’d break up a drunken

brawl by kicking them in the legs anyway – that would require ‘use of force’ reports that would be

difficult to explain.

I wonder too, if being a cop in a high-profile “under-the-

microscope” setting such as Sixth Street doesn’t lend itself to some over-strutting by individual

police, some displays of machismo for the sake of effect that aren’t escalating in and of themselves. I

am reminded of the hardcore California police unit that made such bravado of their starring turn on

their own hit TV show only to be disbanded in the wake of abuse scandals. Some of that stuff looks

great on TV, but it’s over the top on the street, where perceptions are made and communities are won

over or lost.

I am thankful for the Austin American-Statesman’s article (and series)

which I have come across somewhat in retrospect here. It was timely for me, and lent some encouragement

for reporting what I saw, if only in forum.

I see the city’s concern with the analysis of

statistics here, and it’s somewhat founded (though some of their critiques of problems with AAS

reporting are due to some rather inane reporting methods on the part of APD itself), even though their

own analysis says virtually the same thing no matter how rosy a hue they try to paint it with. And yet,

there remains the strong flavor of continued defiance of the need to understand policing and community

relations throughout the letters and statements issued by city functionaries. Some of their notes have

a quality to them akin to ‘We would
o so much better a job of policing Austin if only there weren’t so

many minority people here . . . and we’re working on it.’

I doubt the situation I

witnessed was described on any “use of force” reports since it did not result in an arrest. I imagine

the lack of an arrestee takes care of the ‘just in case’ commander-speak. That man however had no less

than a police-administered bruise when he walked away. And yet has he no less than a right to police

protection and respect as a citizen regardless of how unfavorably those individual cops regard him? Or,

one wonders, does he ‘deserve’ what he got? How many times does that go on, unreported, daily,


When the city fails to understand the frustrations of minorities, and explains

away racial disparity as a consequence of where they are called to and who’s involved (using numbers of

white arrestees outside high-dollar white-college clubs as rationale indeed), it comes from failing to

recognize that a prime ingredient in any confrontation has to do with the attitude in which an officer

approaches it. Is it to defuse? Or is it to “win” as one officer described it? Is it with trepidation,

or the ‘realization,’ that an encounter with a minority will necessarily lead to some greater

confrontation, or are all subjects approached alike? Do cultural fears and insecurities cause

escalation by themselves?

Were it only possible to have a video camera on every cop’s

shoulder to record their attitudes and how they are initially perceived by the subjects . . . but

that’s Big Brother turning the tables, isn’t it? Barring that, we must ultimately rely instead on the

humanity of the officers involved – their recognition that guaranteeing human life, its liberty and

pursuit of happiness, unharmed, unhumiliated, is their mission here, not the cleaning of the streets,

not the protecting of special interests, not the bust, nor the adrenaline, nor the brotherhood’s

circling of the wagons, but ultimately the people, flesh and blood, black, white, brown, red, drunk or

sober, passed out or dishing out $50 tips, straight or gay or in-between, distraught and beside

themselves or saying “yes sir, no sir, thank you sir.”

Protecting victims, it will be

pointed out, is a legitimate concern, but who knows who the victims are until everything has been

sorted out, post-confrontation, post-humiliation, post-force, perhaps post-trial? Only the officers

themselves know themselves inside. But when the public cries out for sensitivity and cultural awareness

training, this is what they’re saying, and saying out loud. Maybe some in the ‘profession’ should do

more soul-searching, or someone else should focus on hiring cops who are capable and willing to treat

their jobs as what they are: service to the people they are sworn to protect, every single one of them.

In my mind that means treating human beings as something not subhuman regardless of their failings and

background. But in all too many of the series responses it seems that “service” to a policeman means

something quite different and for a stricter constituency than it does to those of us being


Unfortunately my recent experience has left the worst of tastes in my mouth. I

don’t know if what they did is professionally considered ‘professional’ or not. If it is then I’d have

to reconsider considering the job itself a profession.

In this polarized time, with fears

of overreaching in the context of security, with diminution of our civil rights clearly at hand, with

fears of Big-Brotherly type technologies washing across the country, and new techniques to accomplish

these things disclosed daily, our only hope is that police themselves have not just the discipline, but

the humanity, the heart, to resist the abuses so clearly enabled recently. We really have nothing else

to hold onto. Collectively it puts our trust of government, and by extension its enforcers, on tenuous

footing. If police desire or require our respect, then they must be willing to exhibit that they are,

indeed, willing to be our servants and treat us all in the manner in which they wish to be treated. It

looks to me as though APD is failing even while it is “making progress.” Why else the parade of

denials, revamped numbers, rationalizations, re-analyses, and insistences.

Sadly, the

next time someone regales me with a story about the hard life of beat cops, or their professionalism in

the cause, or how few tools they have to do the job, I’ll know they may be right, but I’m going to

remember watching policemen kicking and humiliating a sleeping, nonviolent man on the streets of

Austin, one of the “meanest cities in America.” It’s what’s freshest in my mind.


humboldtiana # hotmail * com

cc: Austin Police

Police Monitor
Austin Mayor
Austin City Manager
Byron LaMasters,

Greg Moses, editor, Texas Civil Rights Review


from Austin City Manager
Subject: RE: Austin police conduct
Date: Wed, 1 Dec 2004

21:14:13 -0600


I was going to ask your permission to forward this

email to our Police Monitor’s Office for follow up, but got the end and found that you had already

copied the Police Monitor. The Police Monitor’s Office reports directly to me and is the

administrative arm of our civilian oversight process of police conduct. The behavior you describe is

neither indicative nor condoned by our department and I have taken the liberty to make sure our Police

Chief, Stan Knee; our Police Monitor, Ashton Cumberbatch; and our Assistant City Manager over Public

Safety, Rudy Garza; all have a copy of your email for follow up and investigation. Thank you for

sharing your experience.

Toby Hammett Futrell
City Manager


Dec. 2, 2004


Thank you very much for

your followup on this. In fact, Lt. Richardson of Downtown Patrol Command contacted me within a few

hours of my sending the letter asking for more details. I could provide little more, but was gratified

that an effort was being made. I appreciate also the indication of effort being made by yourself.

Perhaps something to prevent further such incidents will come from this after


tony gallucci

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