Kenny Tong | Dreamstime.com
In 2013, 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 Reason found 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.
A 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.
Dyer's parents, desperate to know why their son was dead, filed a public records request for video from the police cruiser and jail, but the Mesquite Police Department rejected their request. Because Dyer had been charged with assaulting an officer but never convicted, the footage of his last hours was exempt from disclosure under state law.
Dyer's parents then filed a civil rights suit, but it was dismissed for insufficient factual details, which of course they didn't have because the Mesquite Police refused to release them.
Undaunted, the Dyers convinced the FBI to launch a civil rights investigation into their son's death, but that investigation closed two months later without result.
The FBI, however, isn't bound by Texas public records law. In a clever bit of public records jiu-jitsu, the Dyers then filed a federal Freedom of Information Act request for the records the Mesquite police turned over to the FBI. The feds were obliged to hand everything over, and after a two-year battle, the Dyers finally got the long-sought-after video.
The footage showed the delirious Dyer repeatedly slamming his head against the interior of a police cruiser after he wasn't properly restrained. At one point an officer repeatedly tased him in the testicles to try and make him stop. The Mesquite Police Department had neglected to mention the tasings in the incident report it was forced to release to Dyer's parents.
The report also stated that it took several officers to subdue Dyer, 5 feet 4 inches and 110 pounds, and put him in a restraint chair in a padded cell. Video, however, showed Dyer being left handcuffed on the concrete floor of the jail's sally port, where he continued to smash his head against the ground. Jail officials didn't request medical assistance until he was found unresponsive in his cell.
After the footage became public, the Dallas County district attorney reopened the case and declared there was sufficient evidence to charge Mesquite police officers with negligent homicide—if the statute of limitations hadn't already expired.
Civil rights lawyers and news outlets say Texas has essentially created a catch-22: It's almost impossible to get these type of records except through a lawsuit, but you need the documents in the first place to survive the high initial bar for a federal civil rights lawsuit against government officials.
Even if the case survives the government's inevitable motions to both dismiss the case and to grant qualified immunity to the individual officials, federal civil rights lawsuits often take years to litigate, by which time the state's statute of limitations for wrongful death claims or criminally negligent homicide will likely have expired.
All of this make it incredibly difficult for lawyers and the families they represent to discover if they have a case worth pursuing in court in the first place, says Dean Malone, a Dallas civil rights attorney.
Malone is representing the family of Toni Collins, who was shot and killed in an alley by an off-duty Galveston police officer in 2017, in a civil rights lawsuit.
According to the suit, Collins was holding a pink Daisy BB gun when the officer jumped out of an SUV and drew his gun on her. After Collins dropped the BB gun, the suit claims the officer shoved her against a fence and pistol-whipped her. According to the police narrative, the officer and Collins, who was 5 feet 2 inches and 144 pounds, got into a physical altercation, during which Collins grabbed a stick off the ground and raised it at the officer, who shot her in the chest.
Malone filed a public records request in March 2017 to the Galveston County Sheriff's Office for all of its investigative files on the Collins shooting. The sheriff's office attempted to withhold all of the records, including a custodial death report and autopsy photos.
The Texas attorney general's office, which reviews nearly all public records request denials in the state, ruled that, because the case never resulted in a conviction, all of the information except the custodial death report could be withheld.
The loophole also stymies reporters investigating jail deaths in Texas' sprawling criminal justice system.
For example, the Travis County sheriff is currently suing the Texas attorney general to keep secret portions of an internal investigation into the 2016 jail death of Justin Daniel Dominguez. The A.G.'s office had ruled that the sheriff's office must release the internal report to an Austin American-Statesman reporter.
In 2016, Huffington Post reporter Dana Liebelson attempted to gather records from the Texas town of Westworth Village on the death of Jason Johnston, who hanged himself in the town's jail in 2015 after being arrested for allegedly shoplifting from a Walmart.
"Because the investigation as to Mr. Johnston's alleged criminal activity ended as to Mr. Johnston when he committed suicide, the information is excepted from disclosure pursuant to 552.108(a)(2)," the city wrote to the Texas attorney general's office. The A.G. agreed.
Texas state Rep. Joe Moody (D-El Paso) has introduced a bill that would amend the exemption to except cases where subject of the request is deceased, gives permission for the records to be released, or where the case involves the criminal or internal investigations of police misconduct.
An identical bill was introduced last year, but died on the vine in a contentious legislative session.
"We do a lot of things in [the Capitol] with the best intentions," Moody told KXAN. "But how that works in the real world isn't known until that law gets on the books and starts getting utilized. Are there unintended consequences?"
The consequences were that what the public knows of deaths at the hands of, or in the care of, Texas police is often limited to what those very agencies say happened.
"What's missing are the pieces of evidence that allow watchdogs, family members, and lawyers, to look at cases and find out if there was any error," Eva Ruth Moravec, co-founder of the Texas Justice Initiative, says, "If there was anything that someone should have done differently or could have done to avoid the tragedy."
As it stands, the families of those who die in police custody in Texas will be left wondering.
In the case of John Schaefer, Austin's Citizens Review Panel, a now-defunct civilian police oversight body, found the shooting was justified, but it criticized the officer for his "inept" attempt to disarm the elderly man and found "no evidence that the startled Mr. Schaefer realized that the person physically assaulting him from the side was a police officer."
A civil suit filed against the officer and the Austin Police Department, brought by Schaefer's son, John Schaefer, Jr., was eventually dismissed. To this day, the younger Schaefer says he is nagged by questions and grief.
"I haven't really had any closure from this," he says in an interview. "It's been really tough to deal with. It was almost six years ago, and it's still in my head every day."
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