A bill would have closed a notorious loophole that lets Texas police departments hide records of jail deaths. But it failed to pass the Texas legislature, thanks to fierce opposition from one of the most powerful police unions in the state.
Texas enacted a statute in 1997 exempting records of police investigations that didn't end in a conviction from the state's public record law. The aim was to protect the privacy of innocent suspects, but police departments soon figured out they could also use it to withhold information on deaths in police custody, since you don't convict a suspect who's dead.
A Reason investigation published last December found at least 81 instances where police departments cited the so-called "dead suspect loophole" to withhold records of deaths in police custody from reporters, lawyers, and family members of the deceased.
A separate investigation by news outlet KXAN focused on Texas' 21 largest police departments. It identified at least 154 public information requests, related to 52 in-custody deaths, where the authorities cited the exemption to withhold records.
State Rep. Joe Moody (D–El Paso) introduced legislation in January to close what's become known as the "dead suspect loophole." But this week he stripped the language from a larger transparency bill, following intense lobbying by the Combined Law Enforcement Associations of Texas (CLEAT) and a veto threat from Texas Gov. Greg Abbott. The bill would not survive, he realized, if it included the language.
"Those are supposed to be public records, and the people deserve the truth—good, bad or ugly—about situations where their government is involved in a death," Moody wrote in an open letter after he pulled his legislation. "A deliberate disinformation campaign by the very people fighting transparency made it impossible to advance this legislation."
CLEAT argued that Moody's Bill was "pushed by anti-police groups who want access to the information so they can post it on social media and trash officers who are involved in high profile incidents."
But the current law allows police to hide video and other records from families of those who die in police custody. The most infamous case is that of Graham Dyer, an 18-year-old who died in 2013 after being arrested in Mesquite, Texas, while having a bad acid trip. Dyer's parents fought unsuccessfully for years to get video footage of their son's final hours, but Mesquite police refused to hand it over, citing the loophole.
Dyer's parents eventually got the footage from the FBI through a federal Freedom of Information Act request. It shows Dyer repeatedly slamming his head against the interior of a police cruiser after he wasn't properly restrained. An officer repeatedly tases him in the testicles to try and make him stop. The Mesquite Police Department neglected to mention the tasings in the incident report filed after Dyer's death.
The report also claims it took several officers to subdue Dyer, who was 5 feet 4 inches and 110 pounds, and put him in a restraint chair in a padded cell. The video shows 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 passed.
Dyer's parents have gone to the state capital two years in a row to testify in favor of Moody's bill. "If the law stays as it is, the police will continue to deny families those records," Graham Dyer's mother, Kathy Dyer said in her testimony.
CLEAT's opposition to bill was so strong that it destroyed its working relationship with Moody and led to the fairly rare sight of a politician publicly denouncing a police union. Moody said CLEAT "stabbed me in the back and waged an outrageous campaign of outright lies and character assassination."
CLEAT also sunk another one of Moody's pieces of legislation: an amendment that would have allowed judges to dismiss low-level crimes if police officers didn't explain why they arrested someone for an offense that is punishable only by a fine. CLEAT complained it would discourage officers from arresting suspects in serious cases like voyeurism or groping—a misleading claim, Moody says. The legislation was part of a slate of reform measures introduced in response to the 2015 death of Sandra Bland, who was found hanging in her Waller County jail cell after being arrested after being pulled over for a minor traffic violation.
Earlier this month, a local news outlet published never-before-seen cell phone video by Bland of her arrest, obtained through a public records request to state investigators. As Texas Department of Public Safety attorney Phillip Adkins testified during a legislative hearing earlier this month, the department could have kept the video secret if it had wanted to, although it chose to voluntarily disclose it.
Because of an obstinate police union, families of those who die in police custody in Texas will continue to have to rely on law enforcement agencies' good will to find out what happened to their loved ones.