UPDATE (Aug. 24, 2022, 8:13 p.m. ET): The Uvalde Consolidated School District board voted to fire police chief Pete Arredondo at a meeting Wednesday evening three months after 19 kids and two teachers were killed by a school shooter at Robb Elementary. Arredondo and police officers on the scene have come under scrutiny for their response to the mass shooting.
Two months after the massacre at an elementary school in Uvalde, Texas, new details of the already clouded and confounding law enforcement response are more disturbing than ever. On Tuesday, The Austin American-Statesman released security camera footage from inside Robb Elementary School on the day of the shooting. Mercifully, that newspaper’s editors decided to mute the screams of wounded children dying in their classrooms, and replace it with captioning noting when screams are heard. For 77 minutes of footage, dozens of heavily armed police officers traipsed in, out and around the school, seemingly leaderless and befuddled.
Was the Uvalde shooter the only criminal in the school that day?
I watched the entire video. I heard the crack of over 100 rounds fired by the shooter. I watched through the perspective of a 25-year law enforcement veteran and as the former head of internal shooting inquiries for the FBI. I watched as a parent and grandparent. What I saw didn’t answer all of my questions, but it did prompt a new one: Was the Uvalde shooter the only criminal in the school that day?
Because what I saw in that school video, in my professional opinion, may be a crime — by the police. I don’t say that lightly. I’m a career law enforcement guy. I instinctively give the benefit of the doubt to cops because I know they have one of the toughest jobs in our society. When I discuss police use of deadly force as a television analyst, I usually remind viewers that we weren’t there, initial appearances are often incomplete, and we need to wait for more facts. One of the exceptions to my usual practice were my comments on the murder of George Floyd by Officer Derek Chauvin. Now, Uvalde may be another exception.
That’s why it’s time to talk about criminal charges against police leaders at Uvalde. Unlike the Chauvin case, it wouldn’t be for what officers did, but for what they didn’t do. They didn’t take action. We wouldn’t even be having this discussion without the release of the video and the revelations contained in it.
The Texas DPS director said that the school police chief, Pete Arredondo, was the on-scene commander that day. That makes sense since it happened in a school he was supposed to protect. But Arredondo says no one told him he was in charge. That’s a ludicrous abdication of leadership and that’s why I believe it’s Arredondo who should become the focus of a criminal grand jury.
For 77 minutes of footage, dozens of heavily armed police officers traipsed in, out and around the school, seemingly leaderless and befuddled.
Texas has at least two criminal statutes that could apply. The police would not be exempt from these laws. First, there’s “Abandoning or Endangering a Child.” Here are three pertinent sections, of which any or all might apply:
(A) In this section, “abandon” means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.
(B) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.
(C) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.
Second, there’s “Injury to a Child” — Recklessly by Omission. The potentially applicable language there is:
(A) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
The district attorney for Uvalde County, Christina Mitchell Busbee, says she is “investigating” the school shooting, which, she says, includes talking to victim family members. Yet, she’s also said she is waiting for the U.S. Department of Justice to provide her with a complete review of the incident — and then she’ll “do my job.” To me, that doesn’t sound like an independent investigation. The DOJ review is not aimed at criminality; it’s a post-incident study of what went wrong and what can be done better in the future. There are reports that Busbee “might” convene a grand jury. In fact, according to Arredondo’s lawyer, the possibility of a grand jury is precluding his client from making any public statements. That’s precisely why Arredondo, and perhaps other criminally exposed officers, are unlikely to cooperate with the DOJ review. And that’s why the DA needs to convene a grand jury now: so she can compel testimony and records through subpoena. The Austin newspaper’s decision to release the video was not without controversy. Some felt the victim’s families should have had the first opportunity to see it before public release. The paper made its decision within an environment mired in obfuscation and inaccuracies from government officials at multiple levels. The Uvalde mayor says he’s concerned about a cover-up of the law enforcement response, and he particularly singled out the Texas Department of Public Safety as the culprit. So far, dozens of public record requests to government agencies from the media have yet to yield a single record. The Uvalde mayor says he’s concerned about a cover-up of the law enforcement response, and he particularly singled out the Texas Department of Public Safety as the culprit. Even the governor says he was misled. But that’s the same governor who wants to block public release of records in this case by using what’s called the “dead suspect loophole,” a policy that’s designed to limit release of information about a crime suspect who can’t be convicted since he is dead. But it’s not designed to protect law enforcement. To wait for Texas officials to release the video, likely in their own self-serving timing and with their own edits, would amplify the loss of public trust and the perception that truth about the deeply flawed and fatal police response will never be known. It’s that public trust and the moral duty to family members to seek the truth that makes the criminal justice system best suited to find that truth. The video shows that there were enough officers in that hallway (19 of them), enough assault-style weaponry, enough ballistic shields, enough tactical gear to know that they could have acted, but chose not to. If they hadn’t received any active shooter training, which requires officers to move toward the shooter and neutralize that threat, I would sympathize. But they were trained — in fact, Uvalde school police hosted that training in March. If I believed that the Uvalde school police chief, as claimed by the Texas public safety director, honestly thought the situation had turned from active shooter into a barricaded subject incident, I would understand. But we know there was no “barricade” because the classroom doors in that school don’t lock from the inside. And, even if they did, no one thought to obtain the master keys, or even try the doorknob, until most, if not all, of the shooter’s rounds had been fired. Further, it’s not a barricade situation when initial responding officers, as depicted in the video, can hear children screaming and being shot. That’s an active shooter and a rescue situation. Once we’ve asked the question of whether police inaction needs to be explored as criminal conduct, the next question is whether Busbee is the right person to do it. There are only about 20,000 people in the entire county, and Uvalde is the county seat. A DA investigating police leadership within the same small town that houses her office, the same police she and her team need to work alongside every day, likely poses a conflict of interest. That’s why Busbee should recuse herself and another, more removed, prosecutor should be named to take over. The Texas Code of Criminal Procedure allows for just such a recusal: (A) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of the attorney’s office, or in any instance where there is no attorney for the state, the judge of the court in which the attorney represents the state may appoint, from any county or district, an attorney for the state or may appoint an assistant attorney general to perform the duties of the office during the absence or disqualification of the attorney for the state. (B-1) An attorney for the state who is not disqualified to act may request the court to permit the attorney’s recusal in a case for good cause, and on approval by the court, the attorney is disqualified. It’s not any particular personal issues that should cause Busbee to recuse herself. It’s because we owe it to the victims’ families, and to the interest of justice, to avoid even the appearance of conflict, and to do this right.
