Austin Police officers prepare to face protesters in May 2020 (Photo by John Anderson)

Travis County D.A. José Garza announced today, Feb. 3, that his office would drop the criminal case it had brought against Austin Police Detective Nicholas Gebhart for allegedly shooting 16-year-old Brad Levi Ayala in the head with a lead pellet round, during Austin protests against police violence in May 2020.

Gebhart was indicted Feb. 17, 2022, by a Travis County grand jury. Dexter Gillford, who leads the Civil Rights Unit within the D.A.’s office, explained that since then, “new evidence and information” has come to light that could “impair” the D.A.’s ability to successfully prosecute the case.

Neither Garza nor Gillford would provide any information on the evidence that motivated them to drop the case. “What we can say,” Garza told reporters assembled at the Ronnie Earle Building Friday, “is that the evidence would have significant consequences for our ability to prove this case beyond a reasonable doubt.”

Garza reiterated that dropping charges against Gebhart had no bearing on the criminal cases against 18 other APD officers – each, like Gebhart, charged with two counts of aggravated assault with a deadly weapon (one for raising their weapons, another for firing). Criminal defense attorneys Doug O’Connell and Ken Ervin, who represent Gebhart and many other officers, did not respond to inquiries from the Chronicle before publication.

Gillford indicated that Ayala did not object to dropping the case against Gebhart. “Mr. Ayala has communicated to our office that he no longer wishes our office to proceed with this criminal case,” Gillford told reporters. Video of Ayala being hit and dropping to the ground circulated widely after the protests; his family said at the time he had suffered a skull fracture.

City Council authorized a $2.95 million payment to Ayala, even though Ayala’s attorney Dicky Grigg never filed a lawsuit. In a deposition for a different civil suit, Police Chief Joe Chacon said body-cam footage showed Ayala throwing rocks at officers. Grigg did not dispute this, but said that when his client was shot, he was no longer a threat to officers. Chacon has not released the body cam footage, though it is within his power to do so.

Grigg told the Chronicle that the D.A.’s office contacted him prior to their decision to drop the case so that he could relay the information to Ayala. “I talked to Brad and he said he was ok with it, because he is just ready to move on with his life,” Grigg said. “I was surprised by their decision,” Grigg continued, adding that he did not have any information about the new evidence Garza mentioned. “But it’s the D.A.’s decision to prosecute or not, even though I still feel that Gebhart shot Ayala.”

After the weekend’s violence, Gebhart and other officers were placed on paid administrative leave by then-Chief Brian Manley. In December 2020, Manley announced that 11 officers had been disciplined for misconduct during the protests, but it is unclear if Gebhart was one of them. In a statement, an APD spokesperson said, “We continue to believe that the actions of our officers did not rise to the level of criminal violations, and our hope is that the D.A.’s office will continue to evaluate the evidence in all of these cases.”

The spokesperson also described the “extreme circumstances” officers faced during that weekend of protest. “Officers expected hundreds and instead faced thousands,” the spokesperson said of the massive crowds who mostly demonstrated peacefully outside APD headquarters on Eighth Street, “placing [police] in potentially the worst possible situation to manage escalating crowds while making split-second decisions related to public safety.”