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On the morning of Sunday, May 31, 2020, the then–Austin Police Department chief, Brian Manley, held a briefing in the APD parking garage with more than one hundred officers who were about to start their shifts. The police response the day before to Austin’s protests over the murder of George Floyd had made national news. During rallies in the city, officers had fired beanbag rounds—cloth pouches of lead pellets—at protesters, who they say were rioting. APD considers those rounds “deadly force,” with the capability to kill or seriously maim if they hit a target’s head. Indeed, that Saturday, at least one civilian had been seriously injured, sixteen-year-old Levi Ayala, in an incident a city councilman had made Manley aware of. Ayala had been observing a protest on Interstate 35 from a hill near the highway when he was shot in the head, sustaining a brain injury. Manley wanted to refresh his team of officers about “target discernment” and the “rules of engagement” of “less lethal” weapons.
Later that afternoon, a crowd of hundreds of protesters gathered outside APD headquarters. Some of the protesters then moved, once again, across the street onto I-35, a main artery of the city, and blocked traffic, which was then a misdemeanor offense. Around 4 p.m., police command on I-35 directed cops to clear the highway—activity that would lead to the indictments of ten APD officers.
One of those officers was Justin Berry, then a thirteen-year veteran of the force and vice president of the Austin Police Association. Berry, who now is running as a Republican for a Texas House seat in the Hill Country and a sliver of Austin, has made political hay of what transpired on I-35 that day, but declined to respond to questions from Texas Monthly about what specifically occurred. He referred all queries to his lawyers, who also declined to discuss specifics of his policing.
But in April, Berry went on a pro–law enforcement podcast called the The Weight of the Badge and provided a general overview of that day. Berry described the protests on I-35 as “nothing like [he’d] ever seen”: he reportedly saw spray-painted “F— the Police” graffiti, heard protesters chanting “We want dead cops,” and witnessed others throw rocks at officers. There were times, he said, that he “wasn’t sure if we were actually going to go home.” (In a deposition the following April, Manley painted a slightly different picture of the threats.While protesters lobbed objects and some even shot fireworks at officers over the first weekend of protests, the most serious injury suffered by a policeman was a cut that required stitches, sustained after his face shield was shattered by a water bottle. The injury didn’t require admittance to a hospital, Manley recalled.)
Before personnel on the ground began to clear the highway, police offered warnings from a helicopter to those blocking the road. Then the officers on the ground began firing gas canisters toward the fifty or so protesters who remained on the highway. At a February news conference, lawyers for many of the cops, including Berry, said the “highest levels of APD command” then either “ordered or otherwise authorized” those in the police line to target anyone who tried to prevent the gas canisters from working. At 4:02 p.m., one protester, Christen Warkoczewski, sprinted toward a canister at least fifty feet from the police line where Berry stood. She placed a traffic cone over it and immediately turned to run away when a beanbag round hit her in the cheek, and she crumpled over. The projectile fractured her jaw and left a gash on her face—injuries that required two surgeries to fix.
The current chief of the Austin Police Department, Joseph Chacon, who took over when Manley stepped down in March 2021, noted APD no longer uses beanbag rounds in any protest setting, but he would not otherwise discuss the incident with me. He referred me to statements he made in February in which he said crowds had gotten “riotous and violent” at times and that he was “not aware of any conduct that, given the circumstances these officers were working under, would rise to the level of a criminal violation.” But four months earlier, in an October 2021 deposition, Chacon had watched aerial footage of the incident and, when asked, agreed that “nothing warranted a headshot.”
Berry’s role in the shooting isn’t clear from video of the incident. APD’s protocols require officers to “immediately document” each time they use force, such as firing a beanbag round. But during the first weekend of the George Floyd protests, they did not, since leadership deemed it impractical to pull them from duty to “go inside and start writing reports” every time they fired—which was often. In his April 2021 deposition, Manley said that officers used “less lethal” shotguns around seven hundred times the first weekend of protests. More than a dozen protesters who sustained injuries during the May protests sued the city, which, as of March 2022, had paid more than $13 million in settlements.
In February, Travis County district attorney José Garza announced the indictments of nineteen APD officers on charges arising from the George Floyd protests, including ten arising from policing on I-35 on May 31, 2020. Berry and eight others who might have fired on Warkoczewski or ordered officers to fire on her were indicted on two charges of “aggravated assault by a public servant.” The first charge is for “using or exhibiting a deadly weapon” while “causing serious bodily injury.” The second is for “intentionally or knowingly” threatening “another with imminent bodily injury with a deadly weapon.” Each charge is a first-degree felony, punishable by 5 to 99 years or as much as a $10,000 fine.
When the nine Warkoczewski cases go to trial, juries will have to determine if the shooting of the protester was reckless and unjustified. Then they’ll have to determine if displaying a weapon—or firing a round, even if it might not have hit its target—constitutes a crime under the statute, unless new evidence is unveiled that clarifies who shot the round that struck Warkoczewski. Berry’s lawyers said at a February news conference that Garza pressing charges on all nine officers who possibly fired in her direction was “broad overreach.”
Berry, for his part, offered a different term after a campaign event: “political persecution.” He explained his theory of the motive to me: “This district attorney knows I’m his biggest threat this next legislative session if elected.”
But, if anything, the indictment seems to have boosted Berry’s political career. Early on this year, Berry’s campaign was sleepy; while opposition to “defunding the police” was a campaign winner for Texas Republicans in 2020, the issue had been subsumed in most voters’ minds by the border, booming property taxes, inflation, and political corruption. Before the March primary, Berry had been out-raised by one opponent, former Austin city councilwoman Ellen Troxclair, by nearly $400,000.
After Berry was booked in late February—he says he’ll never forget the trauma of getting his fingerprint taken—and released on a $1 bond, though, his campaign experienced a jolt. He became a right-wing cause célèbre, landing coverage in the New York Post and interviews with Fox News, in which he railed against Garza as a plant of liberal philanthropist George Soros. In early March,on the back of that “earned media,” Berry won 35 percent of the vote in a four-candidate field, three points behind Troxclair, whom he forced into a runoff. Then, four weeks after that, he was endorsed by Governor Greg Abbott, who praised his “experience stopping violent crime” as “exactly what we need in the Texas House.”
If Berry beats Troxclair on May 24, he’ll be a shoo-in in November in a district Trump would have carried by 40 points, and he’ll be headed back to the Capitol. Alleged crime by a police officer may well pay political dividends.
Berry has always wanted voters to know he is a cop. His campaign slogan identifies him as “a police officer, not a politician,” while his image in APD shirts graces both sides of his campaign flyers. His yard signs feature his name beside a Thin Blue Line flag, and his mailers accuse Troxclair of “defunding the police”—a term usually reserved in Central Texas for the slashing of the APD budget by $150 million in 2020 following public pressure in the wake of civilian injuries at the George Floyd protests, two years after Troxclair left the city council.
The police budget in Austin, where few in the district live, wouldn’t normally be a pressing concern for voters in the Nineteenth, but the indictments have given Berry a lifeline. In a GOP runoff in a deep red district in which he is the less ideologically right-wing candidate, being a figurehead for besieged law enforcement officers can be a winning situation for Berry—if it’s front of mind for voters. “Defunding the police” was tremendously unpopular among Republicans in Texas—75 percent opposed it in July of 2020.
Berry has run for office before—losing by one point in a Travis County–based state House district that Joe Biden carried by ten in 2020—but he is not the forged culture warrior Troxclair is. Throughout a candidate forum in late April in Fredericksburg, eighty miles west of Austin, Troxclair repeatedly outflanked Berry to his right on questions about transgender children and school libraries. Berry, perhaps feeling sympathy as a public servant under scrutiny for what he believes are illegitimate reasons, took pains to note teachers have been “unfairly demonized” in response to a question about “sexually explicit material” in school libraries, and he promised to protect educators’ pensions. His reward for moderation was Troxclair accusing him of being in the pocket of teachers’ unions, to applause from the crowd. Most voters I talked to after the debate said Troxclair was the more conservative candidate.
Berry, meanwhile, landed his strongest punches hammering Troxclair for her absence during an Austin City Council vote to renew APD’s contract in 2017, when she was the lone conservative on the dais. That vote failed 10–0, and for eleven months, APD officers went without certain specialty stipends, including for nighttime shifts (the police association rejected one offer from the City Council to resume payments, citing legal concerns). About 45 minutes into the debate, as tensions flared, Berry and Troxclair were given a Ken Bone moment and asked to say one thing they admired about each other. Berry seized the opportunity to launder further attacks as praise. He acknowledged that he and Troxclair had worked together on the police contract in 2017 and 2018. “While she may have taken some bad votes against us,” he said, “I am glad that she was receptive to at least having the second chance.” Later, Berry would tell me he’s a big believer in recidivism reduction, which is why he’d extended Troxclair such grace.
After the debate, I asked Heath Bell, who chairs the local chapter of the Young Republicans, whether he thought the indictment was helping or hurting Berry. “It’s a propaganda win, having a leftist DA indict him,” he said. “It could be a good thing to have under his belt to be sort of on the front lines of the ‘defund the police’ movement, as he sort of was.” Other voters I talked to expressed tepid concern about the indictment—but not for its substance as much as its second-order effects. One couple, both wearing Troxclair stickers, told me the indictment might distract Berry from his duties as a legislator as the case proceeded through the courts.
Troxclair, for her part, has steadfastly refused to make any issue of the indictment. As volunteers cleaned up the debate hall, I asked her about the charges against Berry. She paused for nine seconds, thinking of an answer. “I think I generally have always and will continue to support our police,” she said. “And if these are politically motivated, then I hope that justice will—I don’t know the right way to say it. I don’t know. I think I’ll just stop with: I have always, and will always, support police.”
“All my life I wanted to be a cop,” Berry began, like an anti–Henry Hill. He’d just arrived at a cafe in North Austin, about twenty minutes outside the Nineteenth’s district lines, where a group of Young Republicans had gathered one April morning for a “coffee with a cop” event. Billed on Facebook as a discussion about “rioting in the streets” as well as the day-to-day life of law enforcement officers, the event drew about a dozen. The Young Republicans were diverse: only around half were white, and one was celebrating his seventy-second birthday.
Along with Berry, three other APD officers, one of whom was involved in a use-of-force incident in 2018 but found not guilty of assault, discussed their work. Berry said policing had always been his calling, but a wave of activism in the 2010s, including 2017 efforts to reduce racial disparities in APD’s use of force, had made the profession far tougher and led Austin to the brink.
The Young Republicans wanted to know how to make the police force great again. A self-described “California refugee” from San Francisco, “where there are no cops,” wondered how to get kids excited about being officers amid scrutiny. A precinct chair of the county GOP who’d joined the meetup bemoaned reformers pushing to end sovereign immunity, which protects cops in Texas from most civil lawsuits, and asked why anyone would want to be a police officer without it.
The arc of the conversation was long, but it bent toward the indictments. Why has violent crime spiked in Austin? Cops who once were eager to sign up for overtime shifts or intervene in a crisis situation, Berry and the other policemen said, now question whether it’s worthwhile if any use of force might risk an indictment. Why hasn’t property crime spiked? It actually has, another cop relayed, but residents know there’s a shortage of cops, which is because of the legal cases, so they aren’t reporting thefts.
Berry’s solution was a return to “broken windows” policing and making arrests for low-level violations. “If you cast a big net,” he said, “you catch invasive species and can release the good ones back.” Criminologists, and recent research, disagree with his thesis. A 2018 report by the National Academies of Sciences, Engineering, and Medicine found that there was little evidence this type of policing reduces crime.
Finally, about an hour into the meet and greet, someone asked Berry directly about the indictments. “What’s it like being an indicted felon?” the leader of the Young Republicans inquired. The cops and the GOP precinct chair chimed in at once: Berry was not a felon. The Young Republican apologized for misspeaking and reframed his question. “What’s it like,” he asked, “being one of the nineteen officers who were just doing their job?”
Berry took a breath and struck a hushed, somber tone. The indictments had taken a toll on his wife and kid and made him feel aimless. “When you take away a person’s essence, it hurts people,” he said.
If Berry had lost his essence, however, it wasn’t showing. As he talked to the Young Republicans, he was still employed by the APD, where he isn’t allowed in the field anymore but does administrative work, according to Chacon. He was wearing a baseball cap that read “#19strong,” a reference to the nineteen APD cops who face assault charges. “Officer” certainly seemed to be his essence. Just maybe, too, in pursuit of the state House, Berry’d tried on “indicted officer” and found it fit just as well.
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