PECOS — When Pecos Enterprise Publisher Smokey Briggs asked the Pecos Police Department for bodycam videos of a police shooting that killed a local man, he thought he was just doing his job to ensure the videos matched what the police wrote in reports about the incident. After nearly a year and a half battling for that information, he said the newspaper has now been forced to file a lawsuit to obtain it.
“I’m not saying the shooting was not justified,” Briggs said. “But as a news organization, I think this is a very important part of our job, to gather information and get it to our readers. I just want to be sure everything is being handled correctly, and that means — under Texas law — I get to see reports and videos of what happened.” (Briggs also runs the Monahans News and prints The Big Bend Sentinel and Presidio International.)
Briggs had the law on his side, or so he thought, since the last Texas Legislature in 2023 closed what was known as the “dead suspect loophole,” which previously allowed law enforcement to withhold documents and video involving a dead suspect who had not been convicted of a crime.
But when Briggs asked for the information in the months after the 2023 shooting through formal public records requests, the Pecos Police Department refused and withheld the information. The Texas Rangers that had investigated the shooting also refused, and the Texas Attorney General’s (AG’s) Office — which reviews law enforcement denials to releasing information — ruled in favor of the police in February of 2024.
What angered Briggs was the AG’s justification for not releasing the information — a Texas Family Code statute (261.201) allowing documents related to child abuse or neglect investigations to be withheld.
“The Pecos police never even brought that up as an issue when they went to the attorney general,” Briggs said. A child in the dead man’s family was interviewed several days after the shooting, but that information should be separate from the information about the actual shooting, he said.
Killed in the shooting was Adam Lee Ybarra, 37, of Pecos. His brother, Alvaro Navarette, a witness to the shooting, told The Big Bend Sentinel that he is also angry about the bodycam footage being withheld. He and Ybarra family members have not been allowed to see videos either, he said. Ybarra was bipolar and was switching medications at the time of the shooting on November 26, 2023, Navarette said, and Ybarra was in distress before the incident.
Ybarra had a confrontation with his ex-wife earlier in the day and rammed her car and smashed her car window, according to police reports. Police responded with a visit to a residence where reports of “shots fired” were called in, and Ybarra was there in the living room, possibly trying to set the house and furniture on fire. Navarette, who was also there, said he was trying to deescalate the situation inside the living room. Instead, police officers came into the home and tased Ybarra, which caused an axe he was holding to fly out of his hand, Navarette said. Pecos police reports stated that Ybarra threw the axe at the officers, at which point they shot him.
Navarette said he believes officers should have done more to deescalate a situation with someone experiencing mental health issues. Although he was in the room and witness to what happened, videos could equip him to make a better determination of whether the police were justified in opening fire, Navarette said, particularly since he was traumatized after seeing his brother killed.
“That day there was no need for loss of life,” Navarette said. “At that time, I wasn’t aware that [Pecos] had mental health officers, but none of them were dispatched.”
Talking to a Texas Ranger about his investigation into the shooting did little to give Navarette faith in law enforcement, he said. “It’s not like he was there to do an investigation. It was more like he was there to exonerate [the police officers].”
A February 2024 grand jury ultimately declined to indict any of the officers involved. The Texas Rangers also concluded their investigation of the officers, court records showed, and thus, the Pecos Police Department could no longer use an “ongoing investigation” status as a legal means to withhold records. (Police officials did not release the names of the police officers that shot Ybarra. Although a review of records in the court filings made it possible to determine the names of the two officers involved, The Sentinel is not publishing them at this point since there were no indictments or findings of criminal acts by the Texas Rangers.)
Closing the dead suspects loophole?
The Texas Public Information Act (PIA), which makes a wide variety of government documents public record, has exemptions to allow law enforcement and prosecutors the discretion to withhold some information — usually documents and evidence for open investigations or prosecutorial material that hasn’t led to a conviction or deferred adjudication. If a suspect died before being charged and convicted, law enforcement agencies used to contend that the records on them didn’t have to be released because there was technically no conviction.
While the exemption was meant to protect the privacy of individuals not convicted, the obvious roadblock to transparency was that the dead suspect loophole included people killed by the police. The loophole provided no transparency for journalists, advocates and sometimes family members trying to ensure police were justified in shooting suspects or for in-custody deaths.
Most commonly withheld were body and dash camera videos of shootings. (Although many departments had voluntarily started releasing videos of police shootings in recent years.) Law enforcement also sometimes used the loophole to withhold suicide records, leaving some family members questioning “no foul play” determinations in relatives’ suicides without any tools for investigating the deaths on their own.
Texas Rep. Joe Moody tried for three legislative sessions to pass similar legislation to what ultimately cleared the Legislature in 2023 — HB 30 — which intended to close the dead suspect loophole and mandate the release of records. HB 30 states that an exception to releasing information under the PIA “does not apply to information, records, or notations if a person who is described by or depicted in the information, record, or notation, other than a peace officer, is deceased or incapacitated.”
The impetus for finally getting bipartisan support for the bill was the May 2022 school shooting in Uvalde, where journalists and parents battled the Department of Public Safety (DPS) and Uvalde authorities for more information on the actions of law enforcement in the shooting, which killed 19 children and two adults. DPS and Uvalde police used the dead suspect loophole to initially deny the release of information.
PIA champions — like the Freedom of Information Foundation of Texas, which advocates for open records — hailed the bill as a new era in providing the tools needed for journalists and others to get the information needed to examine police-related deaths or mass killings like Uvalde.
“I worked this for six years,” Moody said in a social media post after the bill’s passage. “But Uvalde elevated the issue for the last one, and I’m so proud to finally deliver a path to the answers the people deserve.”
When a citizen files a records request, the responding government agency is typically required to either supply the records within 10 days or request an opinion from the AG on whether they can deny the request with an exception under law — which the Pecos Police Department did. The office then usually has 45 days to respond. (Extensions can sometimes apply.)
Briggs said he wasn’t exactly surprised that the Pecos Police department stonewalled his PIA requests, but what the AG ruled seemed to be a way of restoring the loophole in some cases. The AG’s office stated in its ruling not that the Pecos police “could withhold” the information, but it “must withhold” it under the Texas Family Code Section 261.201. That section states investigative information must be withheld in most circumstances involving investigations and reports of “alleged or suspected abuse or neglect” of a child.
“There wasn’t any child abuse for the exception to somehow apply,” Briggs said. “Literally, the attorney general plucked it out of thin air.”
Taking the police to court
Briggs appealed the AG decision, and it was denied. His remaining option to battle on is in the courts, and last month his attorney filed a petition for mandamus lawsuit, which forces the Town of Pecos City (its official name) and the Pecos Police Department to defend their position in a district court.
Briggs’ attorney, Joe Larsen, said it means the city and police will have to defend the AG’s decision. “So, congratulations, Town of Pecos City,” he said. “You now get to defend the AG. So, it’s going to be interesting to see if the AG tries to help or if the city is just out there by themselves.”
In the lawsuit, the Pecos Enterprise argues that “because the law enforcement action and reports do not involve (1) a report or investigation of neglect or abuse of a child or (2) an investigation under [Family Code] Chapter 261, section 261.201 is inapplicable to the information responsive to the Requests for Information.”
Larsen said the AG ruling in Brigg’s case could impact numerous “dead suspect” cases in the future. If a police shooting involves a domestic dispute, that might play into investigations about children, which could then trigger the use of the Family Code to withhold information. “So, it seriously undermines the dead suspect loophole [closure],” he said.
Jim Hemphill, an attorney and a Texas Freedom of Information Foundation Texas board member, said the use of the Family Code is troubling, but it’s possible that the Pecos Police Department submitted examples of the requested information it wanted to withhold that might tie it to that code.
“When the requester doesn’t always know the nature of all the material that’s being withheld, it’s really hard for the requester to make an argument,” Hemphill said. “Also, when the governmental body makes an argument that they say is a factual assertion to the attorney general, there’s no way to dispute that at the attorney general level. Hopefully, more information, at least information about the basis for the withholding, will be revealed during the litigation. Sometimes the requester has to file suit just to fully figure it out.”
Larsen stated in the lawsuit that he did try to get a reason for the exception to release records with calls to the AG’s office inquiring why it “issued a summary letter ruling with no examination of the facts, and no argument on the law.”
“I reminded [an AG official] that interested organizations supporting government transparency had been working for years to plug the ‘dead suspect’ loophole … and now, in the first case where it would be applicable, the AG took it upon itself … to apply Family Code section 261.201,” the lawsuits states. “I told him that, as applied by the AG, this Family Code section is a made-up exception, made up for the benefit of law enforcement to conceal their files. [The AG official] said that he ‘doesn’t necessarily disagree,’ but that the AG ‘would not revisit the letter ruling,’” Larsen recounted in the lawsuit.
The petition argues that any child abuse or neglect investigation would have been completely separate from the incident that let to Ybarra’s death. “[The Pecos Police Department] did attach a copy of the incident report and video among the materials that it submitted to the attorney general in connection with its requests for letter ruling,” the lawsuit states. The incident report does not reference abuse of a child in its summary information or any of the police narratives. The offenses listed [for Ybarra] are: (1) Aggravated Assault, (2) Stalking, (3) Aggravated Assault with a Deadly Weapon and (4) Criminal Mischief. … None of the descriptions in the incident report match any of the definitions of ‘abuse’ set out in Chapter 261, and the police report of this incident cannot be said to be a report of abuse of a child.”
The Town of Pecos City answered the lawsuit with a “general denial” of all claims made by the Pecos Enterprise, and the parties have entered the discovery phase of the lawsuit. The Town of Pecos City has retained a Houston law firm, Feldman & Feldman, to argue its case. The firm did not respond to a request for comment, nor did Pecos Police Chief Lisa Tarango.
For Briggs, watching the dead suspect loophole bury information from the public eye has been tortuous. “I mean, it was the idea that you have to release all the information if you arrest someone — or a certain amount of information — but if you kill him instead of arresting him, nothing has to be released. That’s insane,” he said.
Briggs said officials should embrace a truly closed loophole. “I would be horribly embarrassed to be a public official, a police chief for Pecos, whatever, claiming that, ‘Oh well, we killed the guy. So, nobody gets to know what happened,’” he said.