By Eric Dexheimer
Austin American-Statesman
Originally published April 20, 2017
Kathy and Robert Dyer received the phone call out of every parent’s nightmares at 3 a.m. on Aug. 14, 2013. A Mesquite police officer was telling them their 18-year-old son, Graham, was in the hospital with a serious head injury. They should come as quickly as possible.
They sped in the dark south to Dallas from their home on a dirt road outside of Paris, in Northeast Texas, arriving at Baylor University Medical Center at dawn. Graham lay unresponsive in the intensive care unit beneath a bristle of medical tubes and instrumentation.
Outside his room, Kathy recalled, a group of police officers prevented them from entering: “They said he was in serious trouble — that he had felony charges for assaulting an officer.” The police told her Graham had been out of his mind on LSD and had bitten one of the officers while they were taking him into custody. He’d seriously injured himself inside the police cruiser as they drove to the jail.
It seemed improbable the five officers who’d brought him in couldn’t safely subdue Graham. The youngest of the Dyers’ three children was small and slight — 5-foot-4, 110 pounds. He was a skateboarder, not a linebacker.
As the morning passed, a series of scans showed Graham’s brain activity slowing to a stop. “The worst day ever,” Kathy said. Their son’s autopsy said he died of self-inflicted head injuries — an accident, the medical examiner concluded.
Even in the dark days following their son’s death, the Dyers tended to believe the police. Why wouldn’t they? Kathy, a civil engineer, and Robert, a teacher, were solid citizens.
And yet, they wondered: What were those marks on his arms — “chicken feet” scratches, Robert called them. Or what to make of the emergency room doctor’s notes saying it appeared Graham had been the victim of an assault? Seeking answers, the couple asked the Mesquite Police Department for their records of what happened that night.
But the department refused to release them — because, its lawyers explained, Texas law said it didn’t have to.
State law says a police agency isn’t required to turn over records for incidents that don’t result in a conviction. Graham, who’d been charged with assaulting a police officer after the confrontation, had died before his case could be litigated. So, the department reasoned, his records were confidential. Asked to weigh in on the dispute, then-Attorney General Greg Abbott agreed the Mesquite police could refuse the Dyers’ request.
Over the next two years, the Dyers would wage an emotionally draining war to pry loose information that might shed light on what had happened to their son that summer evening. And when, thanks only to their persistence and creativity, they finally managed to obtain it, they would discover Graham’s final hours were very different from what the police said had happened.
Once open, now closed
At one time, most police records in Texas were considered open to public inspection. Between the writing of the state’s open records act, in 1973, and the mid-1990s, the attorney general issued a string of opinions concluding that, except for an ongoing prosecution in which releasing details might compromise a case, most law enforcement documents were considered public.
In 1994, however, the Harris County district attorney’s office sued the state to keep private its closed investigative files. In 1996 the Texas Supreme Court agreed with the prosecutors.
With the status of the law murky, in 1997 Texas lawmakers wrote a new statute. It specifically excluded from public view “information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication.” One stated reason was citizen privacy.
“If there is an investigation about potential criminal wrong-doing and the decision is made that no charges will be filed, the person has some privacy right not to be characterized as a person under investigation,” explained James Hemphill, an Austin lawyer with the firm of Graves Dougherty who represents the American-Statesman on media law and open-records issues.
Another reason was simply “to try to withhold as many records as possible,” said Joe Larsen, a Houston open records attorney. Added Laura Prather, an Austin attorney who specializes in First Amendment protections: “Law enforcement has a very powerful lobby.”
Since then, the clause has been used to summarily deny police and prosecution closed-case records from reporters and attorneys. Yet it has also thwarted families such as the Dyers seeking information and, occasionally, legal recourse.
In March Rep. Joe Moody, D-El Paso, filed a bill to compel release of police records if, like Graham, the suspect had died; or, even if not, gave his consent to their release. “The intent of the law was to not interfere with a pending investigation,” said Prather, who promoted the measure for the Freedom of Information Foundation of Texas. “It doesn’t apply if the suspect is dead.”
Moody, a former prosecutor, said he was persuaded to change the law simply because government records should be considered open to public scrutiny unless there is a compelling reason to withhold them. With police reports of deceased subjects, “I don’t see the interest it serves by withholding that,” he said.
A letter to the FBI
Graham’s funeral was attended by 300 people. Afterwards, 100 of his friends went to the Dyers’ house, where they shot off donated fireworks. But the nagging questions returned. “People asked us, What killed Graham?” Robert said. “We couldn’t tell them.”
In written responses to questions, Mesquite spokesman Wayne Larson explained that Texas law allowed the city to withhold records of Graham’s arrest because “the incident involved another suspect and release of all the information pertaining to this case would have impacted the investigation and prosecution of that other person.”
Yet that suspect, one of Graham’s friends who was with him that night, was charged only with public intoxication, a minor case. Larson said Mesquite also was within its rights to withhold the records as it “investigated the circumstances resulting in the death of Mr. Dyer while in police custody.”
Needing another year to fully vest in his pension, Robert returned to his middle school classroom a week later. The school helped by scheduling a planning period at the start of his day, which he used to meet with the school counselor. Robert spent most mornings crying.
Kathy had recently retired from a career with the Texas Department of Transportation. When Graham died, she began windsurfing daily in the nearby lakes, even when the temperatures plunged, seeking distraction and moments of tranquility to ease the unrelenting ache of grief.
A problem-solver by nature, she also started contacting lawyers who might be able to help them learn what had happened to Graham. A Paris attorney tried to wrestle the police reports from Mesquite. But he, too, was rebuffed.
With her hopes dissolving, Kathy was reading online one night when she landed on the FBI’s site. She was surprised to learn the agency would investigate citizen complaints of civil rights abuses. In October 2014 she typed up a letter with what little she knew about Graham’s death and mailed it to the FBI’s Dallas office.
The agency’s disappointing response arrived three months later. Based on its review, agents said they could not bring a civil rights lawsuit against the Mesquite Police Department on the Dyers’ behalf.
With the police department still refusing to turn over its records, the couple contacted Fort Worth attorney Susan Hutchison to cobble together a civil rights complaint. Filed in federal district court in Dallas in August 2015, it was based primarily on Graham’s medical records and his friend’s recollections of the night’s events.
In low moments, Kathy wondered why she bothered: “I’m just trying to get up and go every day, and I was like, What’s the point of that? It’s not going to bring Graham back.” But then she’d remember: “They’ve got records that tell what happened. They have videos that showed what happened. And we as the parents don’t have a right to see them?”
Accountability Catch-22
Civil rights attorneys say that Texas’s unfriendly law enforcement open records law, when combined with recent U.S. Supreme Court decisions, create a potent legal Catch-22 that can thwart police accountability.
In the past, civilians like the Dyer family pursuing excessive force claims filed lawsuits to shake loose documents from law enforcement agencies that might prove their case. Yet a pair of high court opinions handed down over the past decade have required civil rights lawsuits to contain ever-more detailed facts about the alleged violations.
“The Supreme Court in recent cases has made it clear that a civil rights claim has to be fairly precise in laying out specific facts outlining cause of action,” said Ranjana Natarajan, director the University of Texas Law School’s civil rights clinic. “You have to say what happened, who did what.”
Those can be the very same details that Texas’s records laws currently allow police to withhold. The result: “It’s very difficult for plaintiffs in civil rights lawsuits, especially when the victim has died, to put together a case,” Natarajan said.
With Texas law exempting basic police records from release, families and their lawyers often must conduct their own costly investigations into what happened before they even know if a case is worthy of a lawsuit. “A lot of families never even bother filing civil rights lawsuits because they know they’ll never get enough information,” Natarajan said. “So the courts never hear them.”
As a result, added Hutchison, police departments “In effect, have complete immunity and no accountability—at least in Texas.”
Lacking specifics from Graham’s police report, U.S. District Judge Jane Boyle dismissed Kathy and Robert’s claims against Mesquite as too vague. “The Dyers simply have not alleged enough facts to state an excessive force claim,” she wrote.
Which is where the matter might have ended — if the Dyers themselves hadn’t stumbled across a backdoor way to uncover the details of their son’s death.
The tapes arrive
Although the couple had been disheartened to learn the FBI wouldn’t investigate Graham’s death, it occurred to Kathy: If the federal agency really had looked into the incident, it must have reviewed the Mesquite Police Department’s records. What if she asked the FBI for the information instead of the Texas law enforcement agency?
Using the federal Freedom of Information Act, in early 2015 Kathy asked the FBI to turn over any records it had accumulated in its investigation of Graham’s death in Mesquite. That fall, police videos of the fatal evening started arriving.
The FBI had manipulated the digital tapes slightly; the faces of the individual police officers were obscured, and the federal agency had muted the sound. But the images were startlingly clear.
There was, for example, the image of a Mesquite police officer standing with his foot on Graham’s head.
There was the image of Graham in the backseat of the police cruiser, his hands and feet bound — yet also unseatbelted or otherwise restricted — in obvious distress, hurling himself about the car. And then the ghostly image of a police officer’s hand with a Taser stun gun appearing in the camera frame, shocking Graham on the leg.
And then, pushing him on his back and shocking him again — this time directly, and apparently deliberately, in his testicles. And Graham screaming silently as the electric shock to his genitals appeared to be repeated.
“A Taser was deployed in an effort to control decedent, prevent escape and prevent him from injuring himself,” the city stated in court documents, adding the officer had been aiming for Graham’s leg and it was dark.
But “It makes no sense to hurt someone who’s already hurting himself,” said Jerry Staton, a former Austin police officer who trains police departments in use of force and who is consulting on the Dyers’s behalf. Police should have been better protecting Graham, not inflicting pain, he said.
The videos of Graham as he was delivered to the jail also seemed at odds with the police department’s explanation of what occurred. According to the agency’s in-custody death report, upon arriving at the jail Graham had still needed to be placed in a special restraint chair “until the jail personnel noticed he was having labored breathing.”
Yet the video the Dyers received from the FBI depicts Graham lying limp on the sally-port floor after being lifted out of the cruiser. As he tries to raise his head, one of the officers pushes it back to the ground.
Records show it would be more than two hours before an ambulance was called. Larson said the case was never presented to a grand jury, and no officers were disciplined for their conduct.
Judge changes her mind
At Hutchison’s advice, the Dyers have decided not to view the tapes. “We don’t need to see that,” Kathy said.
Armed with the new images, however, Hutchison filed a revised complaint in May 2016 alleging the Mesquite police had mistreated Graham. “The Dyers have made numerous attempts to obtain sufficient information to identify the specific actions of specific Defendants, which the Defendants have thwarted at every turn, refusing to turn over detailed reports, statements and camera footage,” it stated. “However, through a Freedom of Information request to the FBI, the Dyers have obtained redacted camera footage and a redacted police report which supply quite a bit of information.”
As before, the Mesquite Police Department asked to have the lawsuit dismissed. This time, the federal judge reached a different conclusion.
In January, Boyle wrote: “Now Plaintiffs’ allegations, taken as true, allow the Court to plausibly infer that the force used on Graham was objectively unreasonable given his alleged relatively non-threatening behavior.” A month later, she ordered the Mesquite Police Department to turn over its records.
Hutchison said the additional information contained more troubling details about Graham’s interaction with the police. Taser records indicated four officers shocked him multiple times, she said. As Graham is being stunned with a Taser in the back seat of the cruiser, one can be heard saying: “Mother[expletive], I’m going to kill you.”