By Amanda Martinez [email protected]. Jun 20, 2020, New Mexican
If there is a local window into the frustration some critics have about police accountability, it might stem from the 2017 death of Anthony Benavidez, a mentally ill Santa Fe man shot by police while he was in his midtown apartment.
The case resulted in no charges against the officers and a $400,000 settlement between the city of Santa Fe and Benavidez’s family. But questions — and criticisms — linger in the case, in part because the police department has not released the findings of an internal investigation and has not said whether the two officers involved were disciplined for their actions.
Internal affairs and disciplinary records are personnel records, and it is the policy of the city and the department not to release them, Santa Fe police Chief Andrew Padilla said.
The reason for withholding records in the Benavidez case is not because there is something to hide, he added.
Both Padilla and Santa Fe police union President Tony Trujillo said they believe the public should know whether an officer has been disciplined for misconduct and what disciplinary actions might have been taken.
However, neither favors releasing details of an investigation, and the union’s current contract with the city requires the agency to keep internal affairs investigations private.
City Attorney Erin McSherry cited a city policy of keeping all employee records confidential, as they are exempt from disclosure under the state’s public records law.
A push for change
Police reform and good-government advocates argue, however, that opening officers’ records to public view could be critical when it comes to regaining trust in law enforcement — particularly amid the public outrage that has led to ongoing protests over George Floyd’s death last month during his arrest in Minneapolis.
While New Mexico has led the nation in its rate of police shootings in recent years, officer-involved shootings and suspect fatalities are not common occurrences in the Santa Fe area.
About two weeks after Floyd’s death, there were two shootings here.
City police shot and wounded a man during a skirmish at the Big R farm and ranch store on St. Michael’s Drive. The man was accused of trying to shoplift from the store and then using a knife or machete to attack store workers who tried to stop him, according to reports.
A couple of days later, Santa Fe County sheriff’s deputies shot a man in a home north of the city. His mother, who said she had called for emergency assistance because her son was inebriated and wielding a knife, said she regretted making the call.
New Mexico State Police is investigating both incidents, and the officers involved in each were placed on administrative leave. Both wounded men, who are recovering from their injuries, were charged with crimes.
After the city police shooting, Mayor Alan Webber said in a pubic address he had reviewed the department’s use-of-force polices and said they were “very comprehensive” and progressive. He also announced the agency would undergo a review to determine whether policies and practices could be improved to help build trust with the community.
“It’s not a matter of purely releasing records,” he said. “It really is how you go about policing.”
Padilla acknowledged changes within the agency are likely.
“We understand that there is always room for improvement, and with everything going on right nowadays with the recent death of [Floyd,] there’s going to be,” he said.
That could come at the state level.
Police reform bills that would require officers to wear body cameras and would set up a commission to study a legal doctrine called “qualified immunity,” which makes it difficult to prosecute officers, were moving quickly through the special legislative session Saturday. Lawmakers introduced another measure that would make an officer’s disciplinary history a matter of public record, but it had yet to receive a hearing. The session is expected to end Monday.
Momentum building locally and nationally might be affecting the debate.
An online petition by a group called Santa Fe While Black, signed by more than 2,700 people as of Saturday, requests a variety of police reforms in the city, including the creation of a new citizens’ oversight and review board to investigate officer misconduct, excessive use of force and abuse of power.
“The Black community in Santa Fe and our allies call for visionary leadership and action from the City now,” the petition says. “We ask the Mayor and City Council members to publicly pledge to defund the police and invest in community.”
The Benavidez case
Benavidez, 24, who was diagnosed with schizophrenia, was alone in an apartment when he was killed July 19, 2017. Sgt. Jeramie Bisagna and Detective Luke Wakefield had fired 17 shots through a window that police had broken to gain entry following a daylong SWAT team standoff.
Benavidez, previously evicted from the residence, had refused to leave.
His death raised questions about the use of lethal force and led to calls for reforms, such as more training for officers on how to respond to mental health crises.
Top officials at the police department said they would begin an internal affairs investigation into the shooting only after completion of an outside criminal investigation.
It took more than 18 months for the results of that review to be made public.
A panel of three district attorneys from around the state, convened at the request of First Judicial District Attorney Marco Serna, found there was “insufficient factual basis” to charge Bisagna and Wakefield in Benavidez’s death, according to their report, released in March 2019.Online NowCelebrate the Class of 2020
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The day before Benavidez died, Santa Fe County sheriff’s deputies who had served him with an eviction notice became concerned he might be having a mental health crisis. They took him to a local hospital for an evaluation. After he was released, he returned to the apartment.
The next morning, police arrived with his mental health case manager, who tried to coax him out of the residence. Reports said Benavidez injured the caseworker with a knife, prompting a larger police response.
Bisagna and Wakefield arrived as part of a SWAT unit that tried for hours to convince Benavidez to come out.
According to police reports and the district attorneys’ review, Benavidez began throwing chemicals and a homemade incendiary device out a window. There was no explosion, but officers felt the danger was rising, the reports said.
They broke a bedroom window to get a better view of him.
Benavidez didn’t comply with their demands to show his hands, the committee’s report said. Bisagna, who told investigators he had seen Benavidez wielding a butcher knife, opened fire, the report said.
Bisagna, stationed outside the broken window, fired 16 bullets into the apartment, while Wakefield shot once from his rifle.
Attorney Shannon Kennedy, who represented the Benavidez family in a lawsuit against the city, said the panel’s decision not to prosecute the officers still gives them pain.
The family asked Serna to file charges, but he declined.
Deputy Chief Ben Valdez said in an email Friday an internal affairs investigation into the shooting was completed in October.
“The findings and disciplinary action have not been disclosed, and IPRA [the state Inspection of Public Records Act] exempts these types of personnel records from public inspection,” Valdez said.
Secrecy provisions
A request for an interview with Webber, who was not in office at the time of the shooting, was forwarded to McSherry.
She said police records are handled like all other city employee personnel records, and it could be “super dangerous” to apply the privacy policy inconsistently.
“Who gets to make that choice if the law doesn’t apply?” she asked.
Releasing disciplinary records could lead to lawsuits against the city, she added.
Melanie Majors, executive director of the New Mexico Foundation for Open Government, disagreed with the city’s interpretation of the personnel record exemption in state law. If a department takes a disciplinary action against an officer, she said, it becomes a fact and is no longer an opinion protected under the exemption.
If police departments don’t release such information to the public, Majors contended, they cannot build trust in their communities.
“These laws protect all of us,” she said. If there is wrongdoing in a department that is not addressed, she added, “there is no way to uncover it. … Nobody is safe.”
Trujillo, the local police union president, said the organization would oppose any changes in city policy or the union contract to allow the release of internal affairs records. “Even the national Fraternal Order of Police has the same” stance, he said.
Police union contracts nationwide have come under scrutiny since Floyd’s killing and are cited as a means by which law enforcement agencies shield officers from punishment.
The Santa Fe police contract says a “Professional Standards Unit” that reports to the chief is responsible for “maintaining the confidentiality of the internal affairs investigations and records.”
If the agency or an employee compromises confidentiality, “it shall be treated as a violation of policy and investigated immediately by order of the chief of police,” the contract says.
The contract also allows officers to request certain types of disciplinary records to be removed from their files if they do not receive a second reprimand.
Padilla said the results of an internal investigation into an officer could lead to a review by the New Mexico Law Enforcement Academy Board.
The board can suspend or revoke law enforcement certifications based on certain criteria.
According to the academy’s website, an officer must be reported to the board for a felony conviction. Other charges that could be scrutinized include aggravated assault, theft and drunken driving.
The Santa Fe Police Department has not sent any internal investigations or complaints to the board in about 18 months.
The Santa Fe County Sheriff’s Office, in comparison, has submitted at least five within the past year.