In the aftermath of the deadliest school shooting in Texas history, families of the victims in Uvalde have pleaded with law enforcement for a full accounting of a police response that was catastrophically inept.
Instead of answers, they have received conflicting reports and inaccurate information about how police acted – or didn’t – to stop the massacre of 19 children and two teachers at Robb Elementary School on May 24.
Attorneys for the city of Uvalde are invoking legal exceptions to the Texas Public Information Act that include a 25-year-old provision known as the “dead suspect loophole” to block the release of information that could help victims’ families, journalists and the public better understand what happened that horrific day, including why police waited 74 minutes to storm the classroom and kill the gunman.
Dead suspect loophole is misused
Over the years, some Texas law enforcement agencies have used the loophole to block the release of 911 calls, surveillance video, bodycam footage and other records in the deaths of suspects in police custody.
Under the loophole, police are not required to publicly release records pertaining to crimes that do not lead to a conviction, including when a suspect dies. The law is rooted in good intention; it was designed to protect the privacy of suspects who are wrongly accused or whose cases are dismissed. But too often the loophole is used by police to stonewall families and journalists seeking information about the circumstances surrounding the deaths of suspects in their custody, such as in the 2019 death of Javier Ambler during an encounter with Williamson County deputies.
“The public policy behind (the law) is not a bad one but it’s been turned completely on its head, and based on what I’ve seen it’s happening in increasing numbers,” Rep. Joe Moody, D-El Paso, told our editorial board recently. Moody has filed bills to close the loophole since 2017.
In a June 16 letter to Attorney General Ken Paxton, the Uvalde attorneys base their argument for witholding information primarily on the law that allows police to do so during an ongoing investigation. But the letter’s inclusion of the statute containing the dead suspect loophole gives us and advocates for government transparency great concern.
Grieving families, the public and journalists are owed full transparency about what happened in Uvalde, not evasion and obfuscation, even if the revelations might embarrass law enforcement. Police mistakes or misconduct are not valid reasons to invoke the dead suspect provision, and authorities in Uvalde should not use it to bar the release of information that could give the families closure and assure the public that there is no coverup.
“When it came into being in the 90s, (the dead suspect provision) was really meant to protect the innocent, but in recent years law enforcement agencies – some, not all – have seen it as a way for them not to release records when it is something they don’t want to release, like maybe poor conduct on the part of police or an embarrassing situation,” Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, told our board.
Closing the loophole is a legislative challenge
House Speaker Dade Phelan proposes closing the dead suspect loophole and tweeted this month that it would be unconscionable for police to invoke it in Uvalde.
The Senate, at the behest of Texas police unions, killed an effort to close the loophole in 2019. Moody told our board he will again file a bill to close the loophole or step aside and allow a Republican to file it.
“I think the issue in Uvalde has crystallized why this is important,” Moody said, noting that greater public awareness stemming from the mass shooting and the police response could finally compel passage.
Information about the police response to yet another heinous mass shooting in Texas should not be withheld or swept under the rug. The dead suspect loophole was written with good intentions and when used correctly it can protect the innocent. But the law is often misused.
As information dribbles out, we are learning more and more about law enforcement’s failure to respond swiftly and to save lives in Uvalde.The public deserves to know why police didn’t act more aggressively to stop the massacre. The Texas Legislature should close the dead suspect loophole once and for all, and the city of Uvalde should release information about the police response to which the public is legally entitled.
Austin American-Statesman
