Heath Haussamen
The district attorney says police were justified in fatally shooting a Las Cruces man in January, but officials won’t release the report that led to that conclusion. The ‘Trust us, we’re the government’ argument isn’t good enough, especially when the government takes a life.
There’s so much wrong with the fact that the public isn’t being allowed to see an investigative report into the fatal shooting of a Las Cruces man by police that I’m not even sure where to begin in my criticism.
So let me start with the facts.
Las Cruces Police officers Isaiah Baker and Manuel Frias fatally shot 25-year-old Antonio Medrano Jr. in January after he allegedly approached them carrying a butcher knife and a bat. A task force made up of officers from several area police agencies investigated the shooting and reported their findings to District Attorney Susana Martinez, who deemed the shooting justified.
Now Medrano’s family has filed a wrongful death lawsuit alleging that police knew Medrano was suicidal and might try to provoke officers into shooting him, and that they should have attempted to use non-lethal force before killing him.
If ever there was a time that the public should have the right to scrutinize the actions of the government, it’s when the government kills a citizen and then deems that it was justified in killing that citizen.
But the public is currently being denied the right to give this situation that scrutiny.
State Rep. Andy Nuñez and Las Cruces City Councilor Miguel Silva tried to obtain to the 1,000-page report the task force compiled in its investigation into the shooting. The City of Las Cruces denied their request. The Las Cruces Sun-News tried to obtain a copy. Denied.
I also requested a copy from the city, and my request was denied too.
I’m going to make several points related to the arguments government officials are using to justify keeping the report secret:
Ongoing investigations
The city’s denial of my request states that the report “is a confidential law enforcement record protected under Section 14-2-1(A)(4) of the Inspection of Public Records Act. When the city is informed that any criminal investigation or prosecution by any enforcement or prosecuting attorney is concluded all records not exempt from release will be released.”
Essentially, the city is making the argument that the entire report is confidential until the law enforcement investigation and potential prosecution are complete.
But there’s no provision in the public records act exempting law enforcement records from release because an investigation is ongoing. The exemption the city cited in denying my request states only that certain records that reveal “confidential sources, methods, information or individuals accused but not charged with a crime” can be kept secret.
There’s a compelling reason for that. And if, for example, confidential sources are named in the report, the city may be allowed to redact them before releasing it, according to Sarah Welsh, the New Mexico Foundation for Open Government’s executive director.
“But whether the matter is closed or open is irrelevant,” Welsh said. “And certainly, once it’s closed, they have even less of an argument that it could interfere with any sort of police investigation.”
Which brings me to my next point.
The investigation isn’t ongoing
The city claims that it will release at least the portions of the report that don’t fall into the exemption for some types of law enforcement records “When the city is informed that any criminal investigation or prosecution by any enforcement or prosecuting attorney is concluded.” But the investigation officially concluded last month, weeks before the city denied my request.
In fact, an LCPD detective participated in the March news conference at which Martinez announced that the investigation was concluded and no charges would be filed against the offers. Las Cruces Police Chief Pete Bradley – who is listed as one of two people responsible for denying my request for the report – was present at that news conference.
The investigation has concluded. The district attorney has decided not to prosecute. Bradley and the City of Las Cruces know that. To pretend they don’t appears to be disingenuous.
Thinking that there might still be some technical step that needs to be taken for the city to be officially notified, I asked Deputy City Clerk Linda Lewis, who sent the letter denying my request for the report, which agency was responsible for notifying the city the investigation had concluded.
I figured she’d name Martinez’s office. Instead, Lewis refused to answer my question, writing that the city has “no further statements at this time.”
The Arrest Records Information Act
Martinez was quoted in the Las Cruces Sun-News earlier this month as saying the report may never become public.
“When someone is cleared of an offense, (the New Mexico Arrest Record Information Act) prohibits that from public disclosure,” the newspaper quoted her as saying. “You cannot disclose – ever – that part of an investigation. Let’s say you were accused of molesting someone. You were cleared. But all the gory details (are made public) and they put it out there for the public to read. That sort of thing never gets to be public, if you were never arrested.”
When he was state attorney general, Tom Udall disagreed with that interpretation of the act. The key part in the act states that “Arrest record information that reveals confidential sources, methods, information or individuals accused but not charged with a crime… is confidential.”
The definition of “arrest record information” in the act is “notations of the arrest or detention or indictment or filing of information or other formal criminal charge against an individual made by a law enforcement agency.”
So the act doesn’t apply to cases in which no charges are filed or nobody is arrested, like this officer-involved shooting. It applies in cases in which an “arrest or detention or indictment or filing of information or other formal criminal charge” is made, Udall and then-Assistant Attorneys General Albert Lama and Elizabeth Glenn wrote in the 1994 opinion.
Lama and Glenn are now two of the top attorneys at the AG’s office.
The act “protects the confidentiality of information concerning the identity of a person who has been accused but not charged with a crime only if that information has been collected in connection with an investigation of, or otherwise relates to, another person who has been charged with committing a crime,” they wrote in that opinion.
In the case of the investigation into this officer-involved shooting, no one was charged or arrested.
The public interest
So there are compelling legal reasons that the arguments for keeping the report secret may be invalid. More important, the argument for releasing the report is extremely compelling.
This point needs to be restated: If ever there was a time that the public should have the right to scrutinize the actions of the government, it’s when the government kills a citizen and then deems that it was justified in killing that citizen.
In this case, “they already came out and said they cleared the officers, so the public has a right to look at what evidence allowed them to come to conclusion, because otherwise we just have to trust their word, and that’s not good enough,” Welsh said.
Agreed. When the government takes a life, “Trust us, we’re the government,” isn’t sufficient.