ALBUQUERQUE (KRQE) – District Attorney Kari Brandenburg described as “unbelievable” a video KRQE News 13 first aired on Monday.
She was reacting to Albuquerque Police body camera video showing an APD SWAT officer firing three beanbag rounds at an unresponsive suspect’s face, followed by a State Police sergeant flicking the suspect’s eyeball before stomping on his groin. Lusian was dead.
“It’s hard to believe it would happen, but we saw that it happened,” Brandenberg said.
The lapel video, which APD denied existed after KRQE News 13 first requested it, shows the end of a March 2014 SWAT callout at a tow yard in the Heights. Police said 56-year-old Dale Lusian had been seen rummaging through cars in the fenced-in lot before hiding in a metal container. When a police service dog went in, Lusian shot the dog three times. Medical investigators ruled Lusian’s death a suicide from a gunshot wound to the chest.
Records obtained by KRQE News 13 revealed Lusian was unresponsive throughout hours of chemical agents, flashbangs, and rubber ball grenades. A camera on an armored vehicle driven into the trailer got a closeup of Lusian’s face; the Rook’s operator had reported Lusian did not blink and appeared lifeless after several tactical devices were deployed near him.
Brandenburg says there have been “internal” talks within the District Attorney’s office about whether the officers’ actions could lead to criminal charges.
“I think that the issue is if something like that happens to a deceased person…it may not be a crime,” she said, adding that the office would look into it.
Law enforcement experts say shooting someone in the face with a beanbag shotgun can be lethal force. Lethal force can be justified when an officer perceives a credible threat.
APD SWAT officer Steve Arias, who fired the shots, told a detective after the incident that Lusian’s face was the only area he could see.
State Police Sgt. Richard Mathews told a detective his groin stomp was a “distraction strike.” He also told a detective he could tell Lusian was dead before he entered the trailer, flicked his eyeballs and stomped on the body. State Police said it will launch an internal review.
The Attorney General’s office didn’t rule out the possibility of an investigation.
“The Attorney General takes allegations of police misconduct very seriously,” a spokesman said in an email on Wednesday. “Any complaint that is formally submitted to the Office of the Attorney General will be fully reviewed and appropriate action will be taken.”
APD denied the lapel video existed. KRQE News 13 obtained several lapel videos of the SWAT callout from the in-custody death case only after some public records from the case became part of this station’s lawsuit against the city of Albuquerque for withholding such records from the public.
The department has refused to release the full investigative file on the 15-month-old case, saying a homicide detective was still waiting to review the case. Chief Gorden Eden has refused two requests this week to do an interview about the in-custody death.
The Lusian case was one of several officer involved shootings and in-custody death investigations Brandenberg’s office requested from APD in March. The office has still not received the case, she said.
APD released two more public records to KRQE after learning the story would be broadcast Monday night: a criminalistics report and a firearm report.
The criminalistics report does not give a detailed description of where a casing referenced in Monday’s story was found. According to the report, detectives did not find that piece of evidence. Employees of the tow yard at some point cleaned the “trailer and surrounding area where the suspect was found,” and in doing so, found several pieces of evidence, including a casing, a bullet and a bullet fragment. A detective picked them up from employees the Monday after the incident.
The reports shed some light on the case but also raised fresh questions, including:
- The criminalistics report indicates, as does the autopsy report, that Lusian’s injuries from the beanbag rounds were “perimortem,” not postmortem – which leaves open the possibility that Lusian was dying, not dead, when shot twice in the face with a beanbag shotgun.
- A separate section of the report lists the officers who were photographed and checked for evidence after the incident; it does not list the name of at least one officer who was on the original K-9 callout, inside the perimeter of the tow yard when shots were fired.
- The June 23, 2014 report reveals APD knew they had videos that the department denied existed after KRQE News 13 requested them in July. The department has not offered an explanation.
- It does not indicate that APD tested Lusian’s clothing or gloves for gunpowder. The autopsy report didn’t account for soot, gunpowder or burn marks.
- The firearm report says casings collected in evidence were found to be a match for the Glock collected into evidence, while the projectile found in Lusian’s body wasn’t conclusively linked to the pistol “due to insufficient individual characteristics.” The report doesn’t mention anything about matching the gun to the bullet fragments collected from the police service dog, nor the bullet and bullet fragment found by employees.
- Both reports list a “213.3 GN” bullet collected from Lusian’s body. Neither report mentions the discrepancy between the size of the bullet and the type of gun it came from, a 9mm Glock. OMI changed their autopsy report in January to say it was a “123 GN” bullet.
KRQE News 13 journalist Jeff Proctor contributed reporting for this story.