Police reports about people who die in custody are late, missing in Texas

With so many controversial deadly force incidents in the news that raise questions about police tactics, wouldn’t it be great to have a reliable system in place to keep track of lethal police encounters to get a handle on how often they happen?

The good news is, there’s a statewide system in Texas to track how often people die in police custody. The bad news is, no one is taking responsibility to make sure the reports are accurate or even filed at all.

When I started working at the Express-News eons ago in 1997, one thing I learned as a cops reporter is that Texas law requires police departments to file a report with the Attorney General’s office every time someone dies in police custody.

The reports are available to anyone who asks, and under the law, the definition of “custody” includes police shootings.

Those “custodial death” reports came to mind this summer after two Bexar County deputies fatally shot a combative suspect, Gilbert Flores, moments after he raised his hands above his head in an apparent attempt to surrender. A bystander, Michael Thomas, recorded the shooting on his cell phone, sold the video footage to KSAT-TV, and it became a national news story.

The Bexar County Sheriff’s Office and the Bexar County district attorney refused to release any records about the shooting. Since custodial death reports are filed with the Attorney General’s office, I bypassed the sheriff’s office and filed an open records request with the AG for the custodial death report for the Flores shooting.

Missing information

When the AG’s office emailed me a copy of the report, there was a gaping hole. At no point did it mention that Flores had his hands raised when he was shot. The sparsely worded narrative stated:

Officers were dispatched to 24414 Walnut Pass for a family violence call. Suspect attacked the officers with a knife and was shot by the officers after the suspect refused to drop the knife. Suspect resisted arrest.

Maybe it’s not surprising the sheriff’s office didn’t include that pertinent fact. But the omission raised a basic question: What exactly is required of a law enforcement agency when it files a custodial death report, and is anyone making sure the information is accurate?

Police accountability

A few Google searches and phone calls taught me a lot more about the law and the history of custodial death reports. For example, Texas law requires a “good faith effort to obtain all facts relevant to the death and include those facts in the report.” It’s a misdemeanor if the agency files the report but fails to include “facts known or discovered in the investigation.”

Using the eminently valuable website of the Texas Legislative Reference Library, I tracked down who wrote the law and learned it was a former Bexar County lawmaker named Walter Martinez, who filed his bill in 1983 to help the public learn more about custodial deaths.

“At the time, a pretty energetic prison reform movement was going on in the state,” Martinez told me. “We really didn’t know what the record was with regard to deaths while in custody.”

When Martinez’s bill became law, it set up a potentially useful resource for anyone researching police use of force in Texas. But how well did law enforcement agencies actually follow the statute, and did they ever face any repercussions for failing to follow it?

Those questions led to this news story:

The Bexar County Sheriff’s Office failed to file at least five state-mandated reports about people who died in police shootings since 2005, was late in filing a dozen more fatality reports and left out key details about two deadly shootings involving deputies.

The missing details include how one suspect had his hands raised above his head when two deputies opened fire. In another case, a report didn’t quote a deputy who can be heard on dash-camera video saying, “He started attacking me and I shot him.” The deputy then swears, saying either “Fuck him” or “Fuck it.”

Sheriff’s spokesman James Keith noted that the five missing reports of fatal shootings all occurred before Sheriff Susan Pamerleau took office Jan. 1, 2013. During her tenure, four custodial death reports were late. Keith blamed that on a misunderstanding that’s been cleared up.

“The investigator didn’t have a clear understanding of the law and the requirement that these had to be submitted within 30 days,” Keith said.

Texas Attorney General Ken Paxton’s office doesn’t take any steps to make sure law enforcement agencies are being diligent in filing the reports.

“We are simply a repository for this information,” spokeswoman Katherine Wise wrote in an email when asked if the attorney general’s office has any system in place to flag late reports.

While the AG doesn’t check how often reports are filed past the 30-day deadline, there’s a simple way to find out by using the agency’s own data.

You can request a copy of a large spreadsheet the AG compiles from the custodial death reports submitted by law enforcement agencies. This is a lot more detailed than what the AG posts on its website. Out of 4,250 death reports filed in Texas since 2005, the records show that law enforcement agencies filed nearly 700 reports — 16 percent — after the 30-day deadline. Some reports were more than two years late:

Late custodial death reports in Texas

Late report

In Bexar County, a report that was more than a year late was filed with the attorney general’s office Nov. 26, 2013. It described how Sgt. Frank Bellino had responded to a call Oct. 14, 2012, for a possibly intoxicated man who was walking along Culebra Road and creating a hazard for passing drivers.

The report says the unarmed man, Joe Guerra, 19, became aggravated and refused to obey instructions. “He charged at me,” Bellino was quoted as saying, and Bellino opened fire. Guerra later died at a hospital.

I learned a lot about this case from a federal civil rights lawsuit filed against Bellino and the sheriff’s office by Guerra’s family. Their lawyers unearthed dash-camera footage from a patrol car that recorded Bellino moments after the shooting explaining what happened.

“He just went fucking nuts on me,” Bellino told a fellow deputy. “He started attacking me and I shot him.” Bellino then can be heard swearing, saying either “Fuck him” or “Fuck it.”

Sean Lyons, a lawyer representing the Guerra family, told me there’s no question that Guerra was inebriated, but he disputed claims that Guerra was in any condition to fight. The custodial death report in Guerra’s case was not only a year late, he said, but paints an inaccurate picture of what happened.

“You’re basically learning the opposite of what went wrong,” Lyons said of the report. “Because the report goes out of its way to make it sound like Bellino did all he could to de-escalate the situation and that Guerra was the aggressor, when in fact, Bellino immediately threatened Guerra’s life, threatened to fucking shoot his ass, and used escalating language.”

Keith declined to answer most questions about the case, citing the litigation against the sheriff’s office. But he did say the office believes that the custodial death reports are supposed to be a general account of what happened.

“The thought is, the investigation is still ongoing, you’re not going to know every single answer, every specific detail within that 30-day time period,” Keith said.

Martinez, who served as a state representative from 1983 to 1985, said the law governing custodial death reports might need to be revised and strengthened to clearly show who’s responsible for making sure the records are accurate and filed on time for the public to review.

“If no one’s following up or taking responsibility for ensuring that it’s done, then there’s a break in the chain,” Martinez said.

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