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Why so secret, Kansas?
Kansas may be the most secretive state in the country, a Kansas City Star investigation shows. And it’s only gotten worse under Gov. Sam Brownback.
On a Tuesday night in July, Antonio Garcia Jr. was shot to death while sitting in the driver’s seat of his vehicle in front of his Leavenworth home.
The shooter: a Leavenworth police officer. Beyond that, the man’s family doesn’t know much. Four months later, they still haven’t been told the officer’s name or been allowed to see body camera footage they were told exists.
“There are no answers in this,” said Gina Mays, who had raised Garcia like a son since he moved to the area from California when he was 14. “The answers we are getting, it’s like, ‘This is all we are going to let you know.’ ”
In Kansas it can take years for grieving families to get answers. Weak transparency laws and hazy practices often allow law enforcement to avoid public scrutiny, unlike many other states, a Star investigation has found.
The state has one of the most restrictive laws on police body cameras in the country. Footage is classified as an investigative record and not subject to mandatory disclosure under the Kansas Open Records Act. While family members may eventually see what was captured on camera, the public may never have that opportunity.
The Star also found that some of the largest police departments in the state do not release the names of officers involved in shootings, despite a call across the country for more openness following high-profile incidents in Cleveland, Minneapolis and St. Louis.
In 2014, Kansas became the last state in the nation to open criminal affidavits, yet in some counties judges still seal those documents for long periods. And the state can keep records in unsolved cases closed to the public indefinitely. One family has spent nearly 30 years trying to see records authorities have on the disappearance of their son in 1988.
“I don’t trust a government that wants to let us know what we can and cannot know,” said attorney Cheryl Pilate, who recently helped win the release of a Kansas City, Kan., man who was wrongly convicted of a 1994 double murder. Pilate works in both Kansas and Missouri, and said obtaining investigative records is far easier in Missouri.
In the months since Garcia’s death, Tracy Ludeman, who is Mays’ sister, has organized several protests outside the Leavenworth Justice Center demanding answers.
His family insists that Garcia’s vehicle was in reverse and he was trying to leave. The only thing law enforcement officials have said publicly is that a police officer responded to a report of a stolen vehicle. At the location, an altercation occurred and the officer shot Garcia.
Ludeman pleaded with the city commission in August to identify the officer and provide more information.
She vows not to stop seeking answers.
“If it was a regular citizen who shot him, the person’s name would have been splashed across the papers immediately,” Ludeman said. “Right now, all we have is speculation and rumors. It’s horrible.
“Why has there been nothing told to our family? ... The body camera doesn’t lie, let us see it.”
A try for transparency fails
Even when Kansas lawmakers have pushed for openness in law enforcement, it’s been a hard sell.
More than two years ago, Sen. David Haley, a Kansas City, Kan., Democrat, proposed a bill to implement body cameras across the state.
“I’m a strong believer that body cameras work both ways — they protect law enforcement and the general public,” Haley said. “We wanted to have full transparency and accountability.”
It didn’t work out that way.
Many legislators were hesitant. They worried that officers could be threatened or harmed if their faces and names became public after an incident. And they worried about the budget strain of departments having to pay for the cameras and data storage.
That bill fizzled.
The next year, the issue came up again. In the end, lawmakers compromised and passed another bill dealing strictly with the release of body camera footage.
On July 1, 2016, the measure took effect. Footage now is classified as criminal investigation records, exempt from mandatory disclosure under the Kansas Open Records Act.
But authorities do have the discretion to release footage in certain situations.
When a Topeka officer helped a young boy with autism who fell into a pond, video from the officer’s body camera was seen across the country. Officer Aaron Bulmer was hailed as a hero.
Yet the same department declined to release body camera footage from an officer-involved shooting in September. Topeka police, as well as Lawrence police, who are handling the investigation, cited state law in keeping the records closed.
The city of Topeka later said it would allow the dead man’s children, ages 3 through 13, to view the video but not the man’s parents.
Lawmakers have let Kansas residents down, said Doug Bonney, the legal director of the American Civil Liberties Union of Kansas. Any citizen can see a police stop, capture it on video and share it, Bonney said.
“I have a First Amendment right to do that and do whatever with it that I wish,” Bonney said. “At the same time, officers may be wearing body cam technology and that footage is exempt from disclosure. ... It was a compromise, but the wrong compromise.”
Garcia’s family says police officials told them that they’ll eventually get to see the footage. But that was months ago, said Darnell Warfield, Garcia’s brother. The Kansas Bureau of Investigation still has the case.
“They told me they can’t tell me anything until the KBI is done with their investigation,” Warfield said.
The night his brother died, Warfield expected to see him. But Garcia first needed to stop off at his home to pick up some things. He and his wife had been arguing throughout the day, family members said.
When Garcia left the Leavenworth house, relatives said at the time that he encountered the police officer as he tried to get into his vehicle and drive away. Relatives said the officer tried to stop Garcia from leaving, and the two struggled over the door of the vehicle.
Garcia tried to drive away, relatives said, and the officer fired several shots, hitting Garcia in the head and chest.
Warfield had gone to his brother’s home looking for him. He says when he pulled up near the location, he saw police lights. At one point, Warfield said an officer approached him and put her hands in the air.
“She said, ‘I didn’t do it,’ ” Warfield said. “I was like, ‘Didn’t do what?’ ”
Now Warfield wants Leavenworth police to walk him through what happened to his brother.
Leavenworth Police Chief Pat Kitchens said the KBI is still investigating and he could not comment on the case.
“I certainly understand the frustration of the family, but the most important thing to me, and I think to everyone involved, is that there is a thorough investigation and that everything is gathered appropriately,” Kitchens said. “The most important thing is to get it right.”
The waiting, though, only brings more suspicion and frustration, family members say.
“My fear is they are waiting for us to be apathetic enough for us to sweep it under the carpet,” Ludeman said. “And that’s not going to happen.”
Officer Jane Doe
Hours after a Minneapolis police officer shot and killed Justine Damond in July, the officer’s name, how long he’d been on the job and some details from his personnel file were released.
That same month, two Plant City, Fla., police officers shot and killed Jesus Cervantes. Their names were released days later.
Yet for more than a year, Santiago Quintero didn’t know the name of the Wichita officer who shot and killed his son, John Paul, on a snowy January evening in 2015. Wichita police wouldn’t tell him.
“The only way to get it is to file a lawsuit,” said James Orr, a Texas-based attorney who represented the Quintero family in a civil suit against the department for excessive force.
The Star filed open records requests with a dozen law enforcement departments and agencies asking for information regarding all officer-involved shootings since 1980. Four of the five largest departments, which have the bulk of these incidents, used the Kansas Open Records Act as the reason for not disclosing the names of officers who have shot civilians. Topeka was the exception, releasing the names.
Wichita, Overland Park, Olathe and Kansas City, Kan., predominantly cited two discretionary exemptions to the state sunshine law: personnel records and records that would “endanger the life or physical safety of any person.”
“It’s a safety issue for the officers and their families,” Overland Park Police Chief Frank Donchez said. “There’s a climate of anti-law enforcement sentiment in this country.”
Yet, other Kansas departments, such as Hays, Dodge City, Garden City, Manhattan and Salina, have released the information.
Hays Police Chief Don Scheibler said each case is weighed on individual circumstances.
“Law enforcement agencies have an obligation to be open and transparent with their communities, especially in cases of lethal force,” Scheibler said. “But they also have an obligation not to identify officers if it endangers the officer or their families.”
Some cities in other states — Denver, Oklahoma City — release the names after waiting at least a day.
“The longer the law enforcement agency withholds this information, the greater the appearance that the agency is protecting its own personnel at the expense of transparency within the community,” according to a report from the International Association of Chiefs of Police. “At the same time, release of an officer’s name in this time of heightened police scrutiny and public dissent has also become a matter of greater concern for officer safety.”
For the family of John Paul Quintero, not knowing the name of the officer who killed him only worsened the pain.
John Paul was celebrating the New Year and his 23rd birthday the day he died nearly three years ago. He had moved to Wichita from San Antonio just four or five months before, his father said.
Although his son had been involved in gangs and “other trouble” in California and Texas, Santiago Quintero said John Paul was trying to start over in Wichita.
On Jan. 3, 2015, police responded to a 911 call from Quintero’s relatives saying he was armed with a knife, was intoxicated and was threatening others. Santiago Quintero said the situation had cooled down by the time police arrived.
Witnesses said John Paul was holding his hands in the air when he was tased, just before an officer fired a military-style rifle at him from behind, striking him twice in the midsection.
Santiago Quintero said the first thing the officer said was that she thought John Paul was reaching for his waistband after being tased. He said he believes his son was reaching toward his waist to pull up his baggy pants. Police did not recover a weapon on Quintero.
The family did not find out the name of the officer until March 2016, when the city had to give it to them as part of the lawsuit.
The Sedgwick County District Attorney issued a 30-page report finding the shooting justified. Jamie Thompson, who was initially identified as “Officer Jane Doe” in the lawsuit, is still employed by the police department, according to the city human resources department.
The family eventually settled its suit with the city of Wichita. Quintero’s parents each received about $59,000 after attorneys fees and hospital bills, according to city records.
“I don’t need the money,” said John Paul’s father, who doesn’t think families should have to file a lawsuit to find out who killed their loved ones. “It doesn’t bring my son back. It does nothing for me.”
A right to scrutinize
When it came to the transparency of criminal affidavits, Kansas stood alone. In the dark.
That’s what former Rep. John Rubin discovered when he tried to determine how many other states were like Kansas in keeping those documents closed to the public.
“I couldn’t believe it,” said Rubin, a Shawnee Republican. “We were the only state in the country that absolutely sealed affidavits. ... When you’re the only state in the union that does something, or doesn’t do something, it makes you wonder what the other 49 states know that we don’t.”
Arrest affidavits describe why someone has been charged with a crime. The documents are readily available in many states.
A retired federal administrative law judge, Rubin said he was prompted to do something after a Leawood couple couldn’t find out why authorities conducted a SWAT-style raid of their home in 2012. Robert and Adlynn Harte were targets after they were suspected of cultivating marijuana.
No drugs were found, and the Johnson County Sheriff’s Office refused to release the search affidavit explaining the rationale for the raid. The Hartes sued to get the information and paid more than $20,000 in attorney fees.
Ron Keefover, president of the Kansas Sunshine Coalition, likened the incident to something out of a dictatorship.
“How’s it any different than North Korea whisking tourists off the streets and saying they’re spies without any indication for why they’re charged?” he said. “I don’t think that’s an exaggeration.”
Again, only a lawsuit led to answers. Tea leaves in the Hartes’ trash and a visit to a garden store had elicited authorities’ suspicion of a drug operation.
“I was shocked at what happened with the Hartes,” Rubin said. “It’s a right of all Kansas citizens to know how government operates.”
In 2014, legislators passed a law, sponsored by Rubin, that opened the documents. Yet because of pushback from prosecutors and some judges, compromises were made.
Instead of making the affidavits routinely open like they are in Missouri, prosecutors, defendants and their attorneys have up to five days to make a motion to seal the documents. Kansas law allows judges to seal the documents if they determine disclosure would interfere with an investigation or prosecution.
In Wyandotte County District Court, for example, there have been 46 requests for arrest affidavits since the new law took effect in summer 2014. Of those, more than three-fourths were denied, according to Chief Judge Wayne Lampson.
Most were denied because “the police department was still investigating the case,” Lampson said by email.
Doug Anstaett, the executive director of the Kansas Press Association, said he is disappointed by the interpretation of the new affidavit law, questioning why, in some courts, some affidavits are released when others are not.
“I think that raises suspicions for the public: Are you playing favorites? Is there a racial profiling (aspect)? Is it that rich people get protected and poor people don’t?” he asked.
The public has a right to scrutinize law enforcement, he added, “and the way you do that is you get out as much information as you can that doesn’t hurt an investigation but also tells the public why a person is in jail.”
Kansas prosecutors Todd Thompson of Leavenworth County and Marc Bennett of Sedgwick County say there are valid reasons for keeping the records private. Thompson said arrest affidavits, when made public, could taint a jury’s perception of a defendant.
Hearing that affidavits in some jurisdictions remain sealed is disappointing, Rubin said. But not surprising.
“Not given the blowback we heard back then,” when the proposal was first introduced, Rubin said. “Some judges never agreed with the transparency spirit behind the bill.”
What happened to Randy?
Even in less incendiary cases, law enforcement agencies are reluctant to share information.
It’s been nearly 30 years since Harold and Alberta Leach last saw their son Randy, who disappeared one April night when he was just 17 and was never found.
The Linwood, Kan., couple have long questioned the investigation that followed. They’ve asked for the law enforcement records that detail what authorities did to search for their son. Seeing those records would bring them a degree of closure, they say.
But they can’t get them. Kansas is one of several states where criminal investigation records in ongoing cases can be closed to the public indefinitely.
“If we had lived 25 miles away in Missouri, we would’ve already had our records,” Alberta Leach said. “That’s pretty bad. So why? That’s what we’re asking: Why?”
The Leaches filed a lawsuit in Leavenworth County, naming the county and the Leavenworth County Sheriff’s Office as defendants and demanding the release of records in the case. A Nov. 21 court date is set.
Max Kautsch, the couple’s attorney, switches between incredulity and anger when speaking about why the Leaches still feel forsaken by law enforcement after three decades.
“The purpose of open records is not just to find what’s in the records,” he said, “but to hold government accountable and determine whether they conducted the investigation in the manner in which they said they did.”
After Randy Leach’s disappearance in mid-April of 1988, the Leavenworth County Sheriff’s Office began the initial investigation. A few months later, the Kansas Bureau of Investigation began assisting with the case.
Today, the KBI continues to investigate when new leads arise.
KBI spokeswoman Melissa Underwood said new locations have been searched in the past year, “including a couple locations of specific concern to the Leach family.” On one search, “the Leaches were invited and were present.”
She said the KBI has “sincerely tried to accommodate the Leaches’ desire to know what happened to their missing son.”
But the Leaches say it hasn’t been enough. That’s why, this past spring, they attended a Senate committee hearing in Topeka. Sen. Tom Holland, a Baldwin City Democrat, proposed an amendment that would have compelled the release of some of the Randy Leach records to the parents. Though the amendment passed the Senate, it died in the House.
Kirk Thompson, the KBI director, staunchly opposed Holland’s amendment. His primary concern was that releasing such records had the potential to compromise a future prosecution in the Leach case, as well as hinder detectives’ ability to gain the trust of witnesses in other cases.
“Knowledge that information shared privately and in confidence with an investigator could later be disclosed to the media or general public would have a chilling effect on the cooperation of both victims and witnesses, therefore inhibiting successful resolution of criminal cases,” Thompson wrote.
The Kansas Association of Chiefs of Police, the Kansas Sheriffs Association and the Kansas Peace Officers Association all joined the KBI in opposing the amendment.
In their lawsuit, the Leaches are seeking all records created prior to 1993. To win, they must prove the records are in the public interest, Leavenworth County Judge David King said at a recent court appearance.
“I can see in certain situations where we can’t have all this information out, but not necessarily for 30 years. That’s a bunch of garbage,” Harold Leach said.
“Unless there’s something really bad out there to make them look bad, then that’s why they’re doing it. That’s the only thing I can think of.”