Two years ago, Bexar County Sheriff’s deputy Brandin Moran killed Jesus Benito Garcia in a rain of gunfire while a sergeant with Elmendorf Police looked on.
TPR requested body cam footage for both officers in an attempt to answer questions around Moran’s use of deadly force and the significant differences in narratives between Garcia’s family and law enforcement of what transpired. But both the county and the city of Elmendorf are fighting to keep the footage confidential.
Obtaining body camera footage is often a cumbersome process, as Texas gives law enforcement wide discretionary exemptions from public records laws. Law enforcement often argues footage can’t be released because of an investigation — and then after an investigation is complete — they don’t want to because it didn’t result in a conviction. They do this all the while keeping the public from seeing how their law enforcement decides to use deadly force.
“If they feel that it's something that benefits the police department, many times these types of tapes are released or records are released,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “Their hands are not tied. They have a choice in whether to release the information or not.”
There's even more urgency to learn the circumstances and details leading up to the moment when Moran killed Garcia — considering the Bexar County District Attorney’s office thought it was a strong enough case to take to a grand jury. That grand jury agreed, indicting Moran on manslaughter charges.
In an unusual reversal, Bexar County District Attorney Joe Gonzales declined to prosecute the case, and the sheriff’s department reinstated Moran as a deputy. The decision was criticized by police accountability activists.
Since Gonzales took office and created the Civil Rights division in his office they have taken 16 police shooting cases to a grand jury. Fourteen times those grand juries declined to indict. Twice they indicted and only this one time did the DA then decide to dismiss the case.
In his explanation, Gonzales said he didn’t think the case was winnable. He cited a domestic disturbance that led police to the house, the presence of a deadly weapon and the fact that Garcia allegedly had his wife pinned to the ground.
“Texas law allows police to use deadly force to defend to prevent or stop an aggravated kidnapping,” said a statement from Gonzales’ office.
“Deputy Moran discovered Jesus Garcia in possession of a potentially lethal weapon while also pinning his wife on the ground and refusing to let her go.”
The family disputed the county's version of events from the night of March 9, 2020 in its federal lawsuit. It described Deputy Moran as entering the scene, guns blazing within 10 seconds of arriving. In his description of the events, the DA fails to mention that an officer was already on scene. The lawsuit alleges Moran ignored Elmendorf Sergeant David Reyes, who had been there for several minutes and was — according to the family — deescalating the situation.
The lawsuit describes Garcia as begging his wife to stay with him. With a screwdriver to his own throat, it said he threatened self-harm if his wife Lisa left him. At no point does the lawsuit describe Garcia pinning his wife to the ground. At the time of being shot dead Garcia was kneeling beside her, said the family.
Further the lawsuit said Moran did not try to help Garcia once he was shot — letting him bleed out for several minutes — against Bexar County Sheriff’s policy.
“Defendants deny that there was a need for first aid to Mr. Garcia,” reads the county’s response to the family’s lawsuit.
Given the wide gulf between the two narratives — TPR has been seeking the body-camera footage from both Bexar county and Elmendorf PD.
“It's very hard for me to imagine a situation where this information should be withheld,” said Shannon, “We need to know was it a legitimate use of force? Or was there a problem? And by releasing body cam and dash cam footage and other records, this helps the public better understand how their law officers are operating.”
The city of Elmendorf and the Bexar County District Attorney have gone to the Texas Attorney General for legal cover to withhold the Elmendorf Police Sergeant David Reyes footage. Both governmental bodies cite a number of statutory shields from disclosure. Bexar County Sheriff’s have yet to respond to a two-week old request for Moran’s footage, but the same legal exemptions are expected.
Both Elmendorf and Bexar County attorneys say they don’t have to release it because the footage was of a situation that didn’t result in a conviction. This is sometimes what’s known as the “dead suspects loophole” and it is often used when a person dies in police custody.
Despite the suspect of a crime (Garcia) being killed, police can accurately claim the crime didn’t go to trial. Advocates have rightly criticized this interpretation of the exemption. It was intended to be used — they say — to keep the innocent from being followed around by bad records. This warps the public records law enacted to protect people to benefit potential bad actors in law enforcement.
The carve out also can be used regarding Moran, who was indicted but who the DA decided not to prosecute. The dead suspects loophole has been used to deny public records requests around the Uvalde mass shooting also. Bexar County also argues it is currently being sued by the Garcia’s family and there is an exception for that.
TPR contacted several Elmendorf city council members to make them aware of the records request and ask about the police department hiring outside counsel to fight to keep the records closed.
“I would go with whatever our legal counsel advises,” said Tommy Hicks, a councilman who also asked for more information to be sent to him.
Councilwoman Linda Pena Ortiz declined any comment and when TPR asked if she wanted any more information about the case she said, “No, thank you. Like I said, I want to make no comment.”
Don’t get confused, Shannon argued, this footage is public record. These aren’t decisions about what is legal, they are decisions about what police want to release.
“Even if it's something slightly embarrassing, or very embarrassing, or even worse, we need to know what happened because the public has a right and an obligation to watch over its government and see how it's operating,” said Shannon.
In many cities, this footage would have been made public, she said, with police departments trying to show transparency and keep public trust. Bexar County adopted a policy of releasing body camera footage in 10 days earlier this year.
Again, the case did go before a group of Bexar County residents who found Moran should be charged with manslaughter. Those proceedings are confidential — so it isn’t clear if they were shown body camera footage. But even if just given a summary of events — a group of citizens has already said "take it to trial."
