Video raises questions about how APD and State Police treated suspect’s dead body

Records obtained by KRQE News 13 after filing a lawsuit revealed APD and State Police used hours of less-lethal force on an unresponsive man. More than a year after the incident, APD says the case is still open.

ALBUQUERQUE (KRQE) – By 8:45 a.m. on March 21, 2014, SWAT officers from Albuquerque Police and State Police had been trying to get a man to come out of a metal container in the corner of a Northeast tow yard for several hours.

Police said 56-year-old Dale Lusian had been breaking into cars in the lot before hiding in a trailer when he heard police. When they sent in a police service dog, Lusian shot the canine three times.

SWAT officers later called on scene hadn’t heard anything from him in their more than four hours on scene. Several rounds of gas in and around the trailer weren’t working to get him out. They used a Rook, a 6-ton armored vehicle to move in and get a camera view of him.

They kept the camera on him as they threw a flashbang and a grenade filled with chemical agents and rubber pellets his way. The Rook’s operator reported that Lusian held a fixed gaze.

“Since he’d been watching him, he’d never saw his eyes blink,” APD SWAT team leader Ramon Ornelas told a detective in an interview after the incident. “Which I thought, again, was very rare for the amount of chemical munitions. Typically, your eyes want to slam shut.”

Ornelas decided it was time to go in.

Lapel video – which KRQE News 13 obtained more six months after APD denied it existed – shows what happened next.

Six of the officers, wearing gas masks and armed with weapons, silently and slowly walked up to the entrance of the now wide-open, semi-trailer-sized metal container in the corner of the lot.

APD Officer Steve Arias took his shotgun loaded with beanbag rounds and aimed for Lusian’s face.

He fired once. “No movement,” someone calls out.

He fired a second time. “No movement,” they say again. “No movement,” repeats a second person.

He fired a third time. Two of the rounds hit his face, breaking his eye socket, the autopsy report later showed.

“Alright, you’re good,” Ornelas says, telling the team to approach the suspect.

“He has a thousand-yard stare,” one officer said as they moved in.

State Police Sgt. Richard Mathews then walked up, pauses in front of the man, and flicked his eyeballs. Then he lifted up his boot and stomped on his groin.

“He’s got rigor. Rigor’s set in,” he’s heard saying on the video.

Paramedics confirmed 56-year-old Dale Lusian had rigor mortis, Mathews told a detective. Rigor mortis takes hours to set in.

Public records obtained by KRQE News 13 reveal APD and State Police used hours of force on the unresponsive man. More than a year after the incident, APD says the case is still open and has refused to release the investigation or do an interview about the case.

KRQE News 13 sent the lapel video showing Mathews’ actions to State Police Chief Pete Kassetas, who hadn’t seen the video before.

“I can understand the tactical officers wanting to ensure that the threat was mitigated…and I think they did do that with some of the techniques they used,” he said in an interview. As for his State Police officer’s groin strike on the deceased suspect, Kassetas said, “As it stands now, as I view that video, I don’t like what I see.”

Kassetas said he’s ordered an internal review of Mathews’ actions.

APD stays quiet

APD declined multiple requests to interview with KRQE News 13 about the incident. The in-custody death happened five days after homeless camper James Boyd was shot and killed by two APD officers in the foothills.

In a text message last week, APD spokesman Tanner Tixier said the Lusian case is “still waiting to be reviewed by a Homicide Sgt.”

The department has partially released public records from the incident after multiple requests by KRQE News 13. Some of the requests became part of this station’s lawsuit against the city of Albuquerque for withholding such records from the public.

Ten months ago, KRQE News 13 asked for all video showing officers entering the trailer and approaching the body. “We provided all responsive video related to your original IPRA request dated July 31, 2014,” APD’s records custodian wrote in an email in September, referring to video that only showed the beginning of the original callout. “The APD Evidence Unit conducted an additional supplemental and verified they do not maintain any other videos, outside of the ones already provided.”

The previously withheld lapel video also shows officers holding a contest for who could shoot a grenade into the trailer from where they were standing. Another video records an officer saying he hoped they’d kill the suspect.

The aftermath from the SWAT callout is documented in crime scene photos, which the department also denied existed before releasing them to the public. “The search resulted in no additional responsive public records,” APD’s records department said in a response to the photos request in September. They were released in October.

Public records obtained from APD and other agencies show that what happened during the incident was not how the department initially described it in their official statement: “When they went on the property, they found a deceased male on that property,” spokesperson Simon Drobik said in an interview at the scene. “At no time did officers discharge their weapons.”

Detectives didn’t file a return on the search warrant until July, and when they did, they didn’t list a key piece of evidence: the gun found at the scene. According to the evidence log, detectives found the 9mm Glock near Lusian’s feet. The day of the incident, the detective had requested a search warrant for the scene, saying that weapons were among the items she wanted to collect. The return on the search warrant only indicates a search of a gym bag found near the trailer.

The autopsy report from the Office of the Medical Investigator didn’t shed light on the mystery, either: The size of the bullet they originally recorded was too big for a 9mm. In January, medical investigator Michelle Aurelius amended the report after re-weighing the projectile at the request of APD’s crime lab, concluding that OMI had transposed numbers on the report.

Also puzzling: The OMI report said Lusian committed suicide by holding the gun away from himself at an angle, shooting left to right and downward into his chest. The medical investigator didn’t record any soot, searing, or gunpowder particles on his body, gloves or shirt, which are typically accounted for on an autopsy of a person who has fired a weapon. There was no peer review done on the autopsy report and the medical investigator’s office refused repeated requests for an interview.

APD has stayed largely quiet about the incident since March 21, 2014, except to update the public on the police service dog, who survived but was retired, and to identify Lusian by name and report that he had a criminal history in three states: Wyoming, Minnesota and Arizona. Minnesota’s corrections department told News 13 Lusian had not been in their system since 1980; Wyoming’s department did not respond to a public records request. According to Arizona’s Department of Corrections, Lusian was sentenced to 10 years in prison for burglary in 1987 and was released in 1993. Attempts to contact Lusian’s brothers who were listed as relatives were unsuccessful.

In fact, on the same day of the incident, APD brass had other things on their minds: A couple hours after Lusian was found dead, Chief Gorden Eden would release lapel video and hold a news conference about the James Boyd shooting. When asked by a KRQE News 13 journalist whether he believed the shooting was justified, Eden would say a word he would ultimately come to regret: Yes.

The Department of Justice referred to that statement in a letter to Mayor R.J. Berry a few weeks later, announcing its investigation’s findings that APD has a pattern or practice of depriving individuals of their constitutional rights and using excessive force.

“The recent remarks by the police chief in response to the James Boyd shooting on March 16, 2014, demonstrate that more work is needed to change the culture of APD,” the letter said.

“The failure to take meaningful remedial action places residents at risk of excessive force and promotes a culture of unjustifiable aggression that further alienates the department from the communities it serves.”

The Callout

After police service dog Rico was shot in the initial callout, officers backed out and called out SWAT. APD SWAT brought in their armored vehicle, State Police brought in theirs, and APD’s helicopter went up in the air.

By 5 a.m., officer Josh Richards had changed from his K-9 gear to his SWAT gear.

“If my dog had done his job, it would have been him, not Rico,” he’s heard telling another officer on lapel video.

After his camera makes an audible beeping noise, he says: “It’s off now. I hope we smoke this ****head.”

Lapel videos show officers fired Ferret round of gas and launched several gas grenades called Tri-Chambers in and around the trailer, with no reaction from Lusian.

“Still no response. The PAs were constant,” APD SWAT Officer Chris Schroeder said in his interview with a detective. “Nothing. Not even a ‘screw you,’ which is typical on a barricade.”

“I know that at some point, someone said they heard movement in there, but it was indiscernible where in the box the thought they heard movement,” he said. “Who knows? It might have been an alley cat.”

On Ornelas’ lapel video, he’s heard telling another officer his plans, after the first Tri-Chambers didn’t elicit a response from the suspect: “I just say keep Tri-Chambering him,” he says. “I agree. There’s no hurry,” says the other officer.

Another video shows smoke from a Tri-Chamber filling the trailer.

“That’s cooking good!” one officer says.

A few minutes later, another officer challenged the others:  “Who thinks they can make their Tri-Chamber shot from there?” “Not I,” responds one voice. “I’ll do it!” says another. “Softball player, right there,” says another person. A minute later, someone launches another gas grenade.

When the Rook moved in, the operator radioed to Ornelas that Lusian had a fixed gaze and his eyes were wide open, but said he couldn’t see his right hand.

Officers moved up and threw a Stinger, a grenade that’s a combination of a chemical agent and rubber pellets that deploy in a 50-foot radius. Lusian didn’t blink.

They kept going.

“Because the amount of debris, I don’t know if he ever got hit with any of the smaller caliber balls,” Ornelas explained to a detective later.

Ornelas decided it was time for the officers to move in.

He told Arias to use a beanbag shotgun on Lusian.

Arias fired three beanbag rounds. Crime scene photos show the shots caused Lusian’s glasses to be embedded into the side of his face.

“I realize that the face is not a preferred target area,” Arias told a detective in his interview after the incident. “However, in this case … he’d already used deadly force against a K-9. We anticipated that if he were alive he would use deadly force again, once we went up,” he said, adding that Lusian’s face was the only surface area he could see.

“Bean bag rounds fired into the face at close range are in fact deadly force, as any officer would argue if the same force had been directed towards them,” said a source with 15 years of state and federal law enforcement experience, who has investigated use-of-force cases and reviewed KRQE News 13’s lapel video and records from the in-custody death case. “Just because a suspect fires a gun does not mean that more than five hours later the police can use deadly force without cause.”

After the beanbag rounds, Mathews lifted up his boot and stomped on Lusian’s groin. Mathews told a detective he believed Lusian was dead before he did it.

“I could tell from the door of the trailer, he was deceased,” he said. “Walked up, did a distraction strike in his groin — no response. Flicked his eyeball — no response.”

“I don’t quite understand why the officer that I’m responsible for deployed what he called a distraction technique,” Kassetas told KRQE News 13, adding that the internal review will give Mathews the opportunity to explain his actions. “I don’t recall in my 23 years teaching tactics used by my State Police officer to ensure someone wasn’t a threat that way.”

Ornelas didn’t mention Mathews’ strike to the groin in his interview.

“An officer, I believe, pressed near his eyeball, to see if his eye would flinch. Nothing,” Ornelas said.

“So, from there I felt confident he was incapacitated.”

Around 2 p.m., according to the evidence log, a detective found the gun. Photos show it was underneath some debris under his feet. According to a BCSO report released by APD, that same gun was reported stolen in September 2013. The owner told deputies it was stolen from his car parked outside a home in the Heights. The address is just three miles from the tow yard.

A “Non-Story”

Much of what happened remains a mystery. The evidence log also includes one casing that does not account for where it was found: it only lists the address of the tow yard. There are no labeled photographs of the casing at the crime scene, either.

KRQE News 13 asked APD about the case for months. In an email three hours before the story was scheduled to air, spokesman Tanner Tixier said another record that was waiting for this reporter at APD’s headquarters would answer questions about the casing.

“The fact of the matter is that Dale Lusian broke into a property, began breaking into vehicles on that property, ran and hid from police in a storage container, shot a police dog and in doing so shot himself,” Tixier said in the email. “Furthermore, the gun Mr. Lusian used to try and kill one of our K9s was stolen.”

He also apologized for not responding quickly to questions about Lusian’s in-custody death, while calling the still-open case a “non-story.”

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