“What’s the frequency, Kenneth?”

by CJ Ciaramella

How the ‘Dead Suspect Loophole’ Lets Texas Police Hide Records of Jail Deaths and Shootings

A Reason investigation of a notorious Texas public records loophole found 81 cases where police hid records of shootings and deaths in custody.

Kenny Tong, an Austin police officer shot 70-year-old John Schaefer twice in the chest, killing him on his own porch.  Schaefer had called 911 to report that he’d shot a neighbor’s pit bull after the dog attacked him in his backyard. The officer arrived at Schaefer’s house and positioned himself by the door without announcing himself. When Schaefer stepped outside with a holstered handgun, the officer grabbed him in an attempt to disarm him. Schaefer pulled away, drew the gun, and pointed it at the cop, at which point the officer shot and killed him, according to the police narrative of events.

In the immediate aftermath, Schaefer’s family and friends were incredulous, a lawyer for the Schaefer family, Robby Alden, told local news outlets. They couldn’t believe Schaefer, a gun safety instructor and range supervisor, would draw on a police officer.

A grand jury cleared the officer of criminal wrongdoing, but a month later, Alden filed a public records request to the Travis County district attorney’s office for internal records concerning the shooting. What the Schaefers discovered, as many other Texans have, is that when someone dies in police custody in the state, it’s nearly impossible to get anything besides the most basic incident reports.

Citing a controversial Texas public record statute that shields the release of police records in cases that didn’t result in a conviction, the Austin Police Department denied the request. The Texas office of the attorney general, which reviews all such denials, upheld the rejection.

 

This statute is known by critics as the “dead suspect loophole,” and it has been employed repeatedly by the state to prevent families, journalists, and others from accessing records concerning police shootings and jail deaths.  

The loophole not only prevents loved ones from accessing information about how family members died, it protects police from scrutiny, forcing those seeking to pursue legal action against the police to navigate bureaucratic hurdles that can take years to overcome.

Up until now, however, it has never been clear how often the loophole has been used. But an investigation by Reasonfound that between 2003 and 2018, the loophole was used in at least 81 cases.

 

  Those whose requests were categorically denied include family members trying to discover why their loved ones had died, as well as reporters investigating deaths in police custody. There have been 9,077 deaths in police custody since 2005, according to the Texas Justice Initiative, a nonprofit organization that tracks deaths in police custody in the state.

 

The Texas legislature passed the statute, Sec. 552.108(a)(2), in 1997. It was intended to shield the privacy of the wrongfully accused and innocent, but media organizations and transparency advocates say the law has been twisted to shield the police from scrutiny. Texas state Rep. Joe Moody (D-El Paso) has introduced legislation to close the loophole.

“The idea behind that statute originally was to protect the living or, say, somebody who was falsely accused or investigated and found not to be worthy of being charged or brought to trial,” says Kelly Shannon, the executive director of the Freedom of Information Foundation of Texas. “The way it’s being used now is if a suspect dies in custody, the information is not made available to the public because the case didn’t end in a conviction or deferred adjudication. Well, guess what? That case isn’t going to end that way because the suspect is dead.”

Reason searched more than 26,000 public records letter rulings from the Texas attorney general’s website that cited the loophole between 2003 and 2018. The letters, which are generated in almost all cases where Texas agencies deny a records request, were then put into a searchable online database.

So far, Reason has identified 81 letters involving custodial death reports, which Texas law enforcement agencies are required to produce when someone dies in custody. Those reports, as well as arrest reports, are public record in Texas, but they only contain summaries of official police narratives.

In case after case—in response to requests from family members, lawyers, and reporters—police departments and cities cited the exemption to withhold nearly everything else, such as video footage, 911 calls, and other evidence that could corroborate or contradict those reports.

separate investigation by news outlet KXAN in November that focused on Texas’ 21 largest police departments identified at least 154 public information requests related to 52 in-custody deaths that cited the exemption to withhold records.

The use of the exemption has grown steadily over time. The Texas attorney general’s office responded to 823 requests for rulings that cited 552.108(a)(2) in 2003, according to Reason’s analysis. By 2017, that number ballooned to 3,046.

“It’s big enough to drive a freight train through,” Joe Larsen, a Houston open government attorney, says of the exemption.

The most infamous example is that of 18-year-old Graham Dyer, who died after being arrested by police officers in Mesquite, Texas, one night in 2013. Dyer was having a bad LSD trip and became extremely agitated. Two hours after his arrest he was rushed to a hospital. He died the following morning from severe head trauma.

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