Put away the pikes and hot oil. They came in 1978.
The Sex Pistols had cut a swath through Merrie Olde England and in the process become notorious enough to book a tour across the southern part of the United States, where they would be certain to encounter enough hostility to keep their troublemaker reputation on simmer. When they played San Antonio, some Austin musicians ventured down I-35 to see what all the fuss was about and came back convinced that Austin — already gaining a national reputation as a music center — was lacking a punk scene.
The Sex Pistols had formed in 1975 and in 1978 their first run of fame was spent, with Sid Vicious soon to die of an overdose on February 2, 1979 while charged with murder of his girlfriend and the remaining band mates suing each other, putting the Sex Pistols into court-ordered receivership. They would resurrect themselves with reunion tours of the surviving members starting in 1996 and more as the century turned, but their impact on the world of rock ended with their first iteration. They snubbed their induction into the Rock and Roll Hall of Fame in 2006 with a profane fax from Johnny Rotten that was read out loud at the ceremony.
Some outside the punk scene that arose around a dive near the University of Texas campus called Raul’s might be excused for thinking The Huns were first to stake out the territory. They were not, and I was amused to learn that there was enough punk that it had its very own establishment, represented by The Skunks. The Huns arose to be punker than The Skunks with these personnel:
Dan Puckett on keyboards and vocals (later replaced by Bert Crews).
Guitar players John Burton and Manny Rosario.
Joel Richardson on bass and vocals.
Tom Huckabee on drums.
And the vocal frontman, in the punk role pioneered by John Joseph Lydon — stage name Johnny Rotten, was Phil Tolstead, vocalist and performance artist.
Raul’s as a campus beer joint existed before the punk scene, but the owners found the punk followers to be reliable consumers and Raul’s became a sort of punk nerve center, where a new band could take the stage on a slow night and attempt to launch themselves.
According to drummer Tom Huckabee, The Huns’ front man, Phil Tolstead, believed that the winds of destiny were in their sails that night The Huns entered Austin music folklore as the protagonists in The Raul’s Bust.
On July 28, 1995, The Austin Chronicle — newspaper of record for the Austin music scene — offered this summary of The Raul’s Bust, labelled “Cliff’s Notes Version”:
Huns debut a set of Pistols-inspired audience antagonism/cops attempt to stop show during a tune called “Eat Death Scum”/singer Phil Tolstead kisses APD officer Steven Bridgewater on the lips/much mayhem ensues/arrests are made/instant legend status for the Huns — cemented by photos and blurbs in Rolling Stone and New Musical Express.
The fickle finger of fate delivered me a handful of misdemeanor cases arising from The Raul’s Bust. I was in my first term on the Austin Municipal Court.
While the cases were a pain in the ass, I was pleased that Presiding Judge Alberto Garcia trusted me with them. A couple of years later, I was Presiding Judge, and when a high visibility case came out of the pipes, I took care that it was assigned to a judge not likely to stumble with reporters watching.
The Raul’s Bust cases set off the longest trial I ever had in one sitting. When I had been on the bench for about eight hours and the end was not in sight, Judge Garcia slipped me a note with instructions to finish up and he would cover for me the next day…when I might be sleeping in.
Most of the cases were pretty easy. An obvious one was an assault charge against Bobby Morales, who was a Raul’s bouncer. He was trying to break up one of several fights when somebody jumped on his back. He threw his attacker off and cocked his fist but before there was any contact between knuckles and nose, the person who had been shoved and was about to get punched waved his badge at Morales, who immediately ceased hostilities.
The officer arrested Morales anyway. Morales was merely exercising his right to self-defense against an unknown attacker. I probably shot the prosecutor a hairy eyeball when I read off that “not guilty,” because the case should never have been tried. The defense — about which there was no factual dispute just like we are going through impeachment of President Trump with, so far, no factual dispute in the proceedings to match the Twitter smoke — was clear in the law.
In the unlikely event that officer did not know the rule of law, better he get it from the prosecutor than from the hippie judge. The failure of plainclothes officers to identify themselves in a reasonable manner is the cause of too many homicides and serious injuries to take the self-defense rule lightly.
The police department, while I was a Municipal Court judge, did a very good job of “workin’ the ref.” That is, I was under continuous pressure to prove that I was not some nutcase bent on destroying law enforcement in the city where I was living and raising a family. It was a struggle to keep my thumb off the scales and the only objective evidence I can cite showing I did was that my acquittal rate was not the highest among the Municipal judges. It was the second highest.
Judge Garcia, who was the boss when I showed up, was like all the other judges installed in the general housecleaning by the Austin City Council that I rode to the bench. We were committed to the principle that the Austin Municipal Court would not become like so many municipal courts and justice courts in Texas — known as kangaroo habitat, in which the police officer is always right.
After I called all the easy cases, I was left with one that started out easy and quickly got hard. The factors that made that one case a challenge probably underlie the mythical status of The Raul’s Bust to this day. That case was №655,149, State of Texas v. Philip W. Tolstead.
Rather than start with what made Tolstead stand out, I’m going to set the scene with a rough chronology in more detail than the Cliff’s Notes version. Lazy fellow that I am, sometimes I will crib from the opinion I wrote after trying Tolstead. Where I am recycling my words, I will so indicate
by setting them off in this manner.
While it was true that I was still in the habit of frequenting live music venues around the UT campus, I was innocent of the punk movement except I had, of course, heard of Johnny Rotten’s ride to fame in front of the Sex Pistols. That was in Britain, and it appeared to my untutored eye that the only venue on the Pistols’ American tour that was a success in conventional terms was San Francisco. Having lived in San Antonio, I did have the thought that I would have booked them in Austin, but maybe that’s why I was a judge and not a booking agent.
On the night The Huns entered the pantheon of punk immortality:
The evidence showed that Officer Steve Bridgewater, responding to a noise complaint, entered a Guadalupe Street club called Raul’s and asked to see the manager. While standing by the door minding his own business, Bridgewater was espyed by Defendant Philip Tolstead, who had been performing a little improvisational ditty called “Eat Death, Scum.”
Tolstead, unprovoked, unleashed a venomous tirade of execrations at Bridgewater. No two witnesses agreed on exactly what was said, but the “lyrics” improvised by Tolstead indisputably lacked rhyme, meter, and any sense of proportion. The greatest controversy in testimony was not over the tenor of the tirade, but over whether the word “motherfucker” was used. The witnesses differed as follows:
Bridgewater: “Fuck you. I hate your motherfucking guts, pig. Fuck you, pig.”
Officer Boardman: “I hate you. I hate you. You motherfucking pig. I hate your guts.”
Officer Lummus: “I hate you, pig. I hate your motherfucking guts. I hate you, motherfucker.”
Boardman and Lummus were on plainclothes duty near the campus and had come into Raul’s as backup when they caught Bridgewater’s solo response to the noise complaint on the police radio. They were going to hang back while Bridgewater got the noise issue resolved then leave without ever identifying as police, since de-cloaking would impede their ability to buy drugs and prostitution services — to make “vice” cases — in the campus area.
Tolstead: “I hate you. I hate you. I hate your white face. I hate you because you gave me a traffic ticket last week.” Tolstead testified that he may have said “fuck you” but not “motherfucker” because the latter is “a 60’s word.” Earlier in the performance, Tolstead had expressed his opinion of the 60’s in this punk ballad: “I’m glad he’s dead/that fucking Red/I helped Lee Oswald/shoot him in the head.”
Mike Lauer (sic), a Daily Texan photographer, heard only “I hate you. I hate you.”
Louis Black, a teaching assistant in the Radio-Television-Film Department at UT, testified that he had not discerned a word of Tolstead’s lyrics all night. The terrible sound system, he said, would make picking out words “a real triumph of listening.”
Richard Dorsett, a co-defendant, heard “I hate your guts.”
Richard Jernigan, a musician from another band, heard “Fuck you. Suck my cock.”
Richard Earl Jones, another co-defendant, heard “I hate you. You’re the ones we don’t like.”
Since subsequent witnesses were heard past the ten hour point of this twelve hour trial, the State apparently got tired of asking the question. Therefore, we do not know what Ray Gomez, Sharon Nagy, Walter Camacho or Robert Morales heard.
It’s safe to say that whatever the exact words were, Tolstead did not endear himself to Officer Bridgewater.
Annoyed, Bridgewater decided to arrest Tolstead. Right then and there. There are two problems with this. One is that it is not against the law to annoy a police officer and the other is that leaping onstage to break up a rock concert is fairly certain to be construed as a suicidal, homicidal, or riotous act.
At this point, Tolstead and his co-defendants would close the case, holding that Officer Bridgewater’s indisputably poor judgment absolved all others from responsibility for what followed. Tempting as it is, this is not the law.
I have no way of knowing who decided to put Phil Tolstead on the stand in his own defense, but I am familiar with the abilities of his pro bono legal team and I became somewhat familiar with Tolstead’s egomania during the trial. I would put my money on Tolstead testifying against legal advice.
To keep the case from becoming — at least in the fairest of minds — one of political tribalism, I cited a number of cases in my opinion demonstrating that cussing in the direction of a police officer’s shell-pink ears was not all it took to make a crime. My point is not that the following language was endorsed by the SCOTUS. Rather, it was insufficient to make a crime standing alone.
Lewis v. City of New Orleans: “You god damn motherfucking police…”
Brown v. Oklahoma: “motherfucking fascist pig cops.”
Lucas v. Arkansas: “big, bad motherfucking cops, chickenshit motherfucker, sorry son of a bitch.”
These cases stand for the proposition that statutes seeking to punish speech must fit through the eye of a Constitutional needle.
Two of the routes though that needle are “fighting words”….and “clear and present danger…(citations omitted).”
In both kinds of speech that may be criminalized, context is everything.
Fighting words must be uttered in a circumstance that would make the addressee take leave of his senses and punch first, saving any questions for later. I should confess that I harbor a thought that fits in the analysis that pits the conservative or law and order tribe against the liberal or cop-hating tribe.
I question whether a police officer can ever be a victim in a fighting words case because I do not wish to credit the idea that human beings cannot be trained to ignore insults. Don’t we attempt that training when our kids first go off to school? Police academies do the same. Is it always futile? Justice Lewis Powell agreed with me police officers are trained not to fight except in defense and therefore cannot be victims of fighting words. Powell was on the hard right of the SCOTUS at the time, with nothing in his judicial record to place him in my jurisprudential tribe.
This case did not force that issue because the evidence placed Tolstead and Bridgewater some twenty feet apart — plenty of time for Bridgewater to come to his senses before Tolstead’s eyeballs were rolling on the beer-soaked floor of Raul’s.
Tolstead was charged with “disorderly conduct” under a statute that used fighting words language, criminalizing “language (which) by its very utterance tends to incite an immediate breach of the peace.”
“Clear and present danger” refers to “a serious, substantive evil which government has the power to prevent.” The usual context is what lay people would call inciting a riot.
Under current Texas law, no particular number of people is required to constitute a riot. While my aged memory suggests there might have been such a requirement in 1978, there were enough people in Raul’s to have a dandy little riot and the evidence appeared to show that one was going on before Bridgewater moved to arrest Tolstead.
There was still the problem of Tolstead’s intent, and it’s not clear that insulting Bridgewater was intended to incite violence. At least, it was not clear until Tolstead testified. The defense wisely had Tolstead explain punk to the hippie judge, who had parted ways with popular music when disco arrived.
Tolstead explained “punk rock” as fast and loud music dealing with “issues of immediate concern to people.” Two such issues, he said, are “aggression and violence.” Punk is characterized by “violence of emotion” and “lack of restraint.”
He seeks to “antagonize and abuse” his audience, collectively and individually.
On the night in question, he was expecting to stir up the audience, “looking for aggressive acts.” When asked about his expectations, he replied “I’m not writing the script.”
Until prodded by his able counsel, Tolstead appeared to have misplaced the word “mock,” which usually modifies the words “violence” and “aggression” in newspaper accounts of this incident. Also, the word “mock” would sound more credible without the mindless brawl testified to by every witness.
Tolstead testified that his set was going “pretty good” and that the audience was in a “high state of arousal” when Bridgewater walked in. There had been beer-throwing between band and audience and among people in the audience. Tolstead had been forcibly dragged from the stage twice.
The Huns had intentionally set out to incite breaches of the peace and in fact had done so. There was, however, no violation of the law, because all of the parties presumably agreed to this behavior. Enter Bridgewater.
Except to the question whether Steve Bridgewater could have been the person incited to breach the peace, the fact that he is a police officer is irrelevant. He could have been a plumber, a telephone serviceperson, a beer distributor, or some unenlightened student on a study break. In fact, Bridgewater was not a consenting party to the punk experience. To Tolstead, he became “a prop.”
Before my mind was polluted by study of the law, I used to have trouble understanding the phrase “verbal assault.” I would have said that if there is such a thing, Bridgewater was the victim of one.
However, it could be argued that all assaults are verbal, because when the defendant actually strikes somebody, that is a “battery,” defined in common law as “an unwanted or offensive touch.” A doctor who treats a patient without effective consent is usually guilty of a battery and a display of affection might be a battery if there was no effective consent.
The example I sometimes used when teaching was that I’m walking up the street and see my girlfriend engaged in conversation with a mutual friend. Her back is towards me and she is wearing an outfit I think I recognize. As I approach, I pat her on the behind. Not a spank — which everyone would understand requires consent — but a soft pat. The woman turns around and she is not my girlfriend.
I have been tagged with a terminal case of embarrassment and a battery. The fact that the pat could not have caused pain is beside the point. If she finds it offensive to have her behind fondled by a strange man — and most women would — that is a battery.
Legislatures can of course change the common law rules and in the case of the crimes often uttered as one phrase, “assault and battery,” they often have. Texas has poured common law assault into “assault by threat” and battery that causes no pain, such as the pat on the backside, into “simple assault.”
Tolstead’s legal defense was that if a statute is written in the language of fighting words, a conviction may not be based on clear and present danger. I would say that’s interesting, so let me know what the Court of Appeals has to say about it.
Tolstead’s factual defense was that Bridgewater had been in Raul’s long enough to become part of the “psychological agreement” between punk rockers and their audience. I never had to address how long is long enough for consent, because Tolstead romped right over the line between assault and battery when Bridgewater stepped on the stage…and the man who aspired to the status of a Texan Johnny Rotten kissed a male police officer on the lips.
Bridgewater had one handcuff on Tolstead when he reached for his radio to summon backup. The Huns played on as Puerto Rican guitar player Manny Rosario knocked Bridgewater’s radio away, using his guitar as a club. This motivated Bridgewater to whip out a real club and whack Rosario hard enough to knock him on his butt. When he got up off his ass, the guitar player hauled it out the door and as a result was not arrested for his swing at Bridgewater.
Drummer Tom Huckabee told me Rosario next surfaced in Florida and expressed the intent to flee all the way back to Puerto Rico until he heard that things had died down in Austin. As it was, he barely made it back for The Huns’ next gig.
I got to thinking about Tolstead’s contention that Bridgewater was part of the performance, “a prop.”
When asked why Bridgewater’s response (arrest) was not as artistically valid as dragging the singer offstage or throwing beer on him, Tolstead replied that being jailed was “boring.” It appears to the Court that Tolstead’s distinction does not deny that Bridgewater is an artist — it just makes him a bad artist.
I found Tolstead guilty based on his own testimony and fined him fifty dollars plus costs, which is exactly what the fine would have been if he had pled guilty, because I don’t charge defendants for the use of the courtroom.
Naturally, the civil liberties lawyers representing Tolstead gave notice of appeal, with the intent to take the case however far it would go. That turned out to be not very far, because before the appeal could be heard, Tolstead had a talk with Jesus, who informed him that he was in fact guilty.
On Divine instruction, Phil Tolstead withdrew his appeal and paid the fine. That result did nothing to shake The Huns’ status as the cutting edge of Austin punk or The Raul’s Bust as one of many milestones in the folklore surrounding Austin’s rise to fame as a national center of the performing arts.
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Previously published on medium
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Photo credit: Steve Russell