Dark Window

On Anthony Benavidez' last full day alive, two deputies from the Santa Fe County Sheriff's Office who arrived to evict him found the 24-year-old living in almost complete darkness.

Benavidez had lined the bedroom window in his Tuscany at St. Francis apartment with aluminum foil and a comforter. Thick, dark blinds covered another window in his living room. Walls and a door were painted black, and a single red light above the stove offered the only illumination.

Social isolation is a common symptom of schizophrenia, and Benavidez—identified in grammar school as highly intelligent but whose illness was worsening—now spent his days alone, sometimes scribbling out complex mathematical formulas. He became unable to care for himself, fell behind on rent and was evicted.

When his personal crisis spiraled into violence against his social worker one morning in July 2017, the city sent a SWAT team to Benavidez' home. Within a few hours, Santa Fe police officers Jeramie Bisagna and Luke Wakefield shot him dead.

This November, the city settled a lawsuit filed by Benavidez' half-sister for $400,000, the maximum that can be recouped in a case like this. It saved Santa Fe from a public trial that would have put both the city and police department approaches to the mentally ill in the spotlight, including the decision by Bisagna and Wakefield to shoot Benavidez.

SFR listened to audio recordings of State Police interviews, which reveal the officers admitted to serious missteps that led to Benavidez' death. Wakefield was wearing sunglasses, which made it hard to see whether Benavidez was holding a weapon. Wakefield screamed, triggering Bisagna's already heightened emotional state. Bisagna believed, falsely, that Benavidez was holding a gun. Bisagna opened fire, then Wakefield.

Police say no video exists of Benavidez as he's shot through the apartment window, which the family's lawyers say made it difficult to sue in court. That's different from some higher-profile police killings in Albuquerque. The same team who handled the Benavidez suit against the city (and is moving forward with claims against Christus St. Vincent hospital for its role) also won $5 million in a federal lawsuit against Albuquerque police for killing James Boyd, another man with schizophrenia.

Such large payouts are rare, lawyers who spoke with SFR say. And criminal charges against either officer who shot Benavidez are unlikely—as in nearly any police shooting case in New Mexico or around the nation. An independent panel of prosecutors convened by First Judicial District Attorney Marco Serna has issued no public conclusion about the shooting 11 months after it got the case.

That leaves New Mexico families who want justice for death-by-cop facing two daunting obstacles in court. First is the state's tort claims law, which has capped the amount a person can receive for death inflicted by a public entity at $400,000. Then there's the federal system, where the US Supreme Court has enhanced legal protections for police in recent years.

The only accountability for the killing so far comes from the city's insurance carrier, a business that has the final say in legal complaints against SFPD officers. One law professor believes these private insurers, who bear most of the financial responsibility when cops in small and mid-sized towns get sued, may be the most powerful entities when it comes to regulating police behavior.

Mayor Alan Webber refused to be interviewed for this story. In a written statement, City Attorney Erin McSherry said: "The settlement was a financial decision determined by the city's insurance carrier," and that it was "not an admission of any wrongdoing by the officers or the city."

With no one from the city offering a detailed explanation, a more fundamental question hangs in the air: If the bloodless calculation of a faceless insurance company is a family's best option for justice from police violence, to whom are the city and police truly accountable?

“A horrible idea”

Anthony Benavidez was a really smart kid.

A diagnostic test administered to him in 2001 after he had completed second grade at Chimayo Elementary School says his math and reading skills were in the top tier of his peers. While a Santa Fe High School yearbook shows Benavidez was a freshman there in 2008, he does not appear in subsequent yearbooks.

Juan Valdez, a caseworker for the Santa Fe Community Guidance Center at Presbyterian Medical Services who worked with Benavidez for nearly four years, says his illness became more pronounced as time went on. On the day that SFPD killed him, Benavidez stabbed Valdez when Valdez tried to coax him out of his apartment.

Valdez says accounts of Benavidez going missing after he left the hospital a day before he was killed have been misreported. After sheriff's deputies evicted him, they transported Benavidez to St. Vincent for a psychiatric evaluation. Rather than choose to stay, Benavidez asked hospital staff to call Valdez, who he knew through the Presbyterian Medical Services' Program of Assertive Community Treatment. The program is for people with severe mental illness.

"There was a period there where he had a job," Valdez tells SFR over the phone. Then, "something happened, and he just stopped seeing his therapist, stopped taking his medicine, and just isolated himself." Benavidez seemed to be in denial about his schizophrenia, which often manifests in a person's late teens or early 20s.

In June 2017, an employee of the Tuscany at St. Francis apartment complex delivered a three-day notice of rent nonpayment to Benavidez, who had been receiving public assistance for his rent. By the end of the month, the building's owner had secured a petition to evict him over a missed $276.80 payment, plus restitution and damages.

Valdez, who picked up Benavidez from the hospital, offered to let him stay at his place for a couple days until a bed opened at the St. Elizabeth Shelter. But after the two went to Santa Fe Place mall so Benavidez could buy more minutes for his phone, he disappeared.

The next morning, Valdez visited the apartment and Benavidez stabbed his longtime caretaker, hospitalizing him. Valdez says he "immediately forgave" Benavidez and that he believes the eviction sent Benavidez deeper into his illness.

"When he lost that apartment, he lost his sanctuary," Valdez says.

The arrival of the Santa Fe SWAT team escalated the situation. They blared commands to surrender through an amplifier. Benavidez responded by throwing out a propane tank tied to fireworks and a tube filled with a bleach-like substance, according to police.

A siege began.

Bisagna, a firearms instructor and trained sniper who characterized himself in a State Police recording as one of the "most senior guys" on the scene that day, was inside the department's armored Bearcat vehicle when he heard Lt. Ben Valdez say Benavidez had thrown "a bomb." Bisagna later told State Police investigating the shooting that he believed he was in mortal danger.

"To me, I'm thinking, it's an [improvised explosive device]," Bisagna said. "I was in fear that this thing was gonna blow up. … Are guys gonna get hit with shrapnel? This man just threw a bomb at me, it's lethal force."

After running through several ideas for confrontation, including ramming the Bearcat into the building, Bisagna and other officers concoct a plan: Break the bedroom window. Bisagna takes the shield position; Wakefield is assigned to lethal cover. The plan moves ahead even after Bisagna hears that a member of the crisis negotiation team was waiting for a phone to arrive that officers would use to speak with Benavidez.

A quick window smashing by Sgt. Nick Wood leads to chaos and confusion.

Both Wakefield and Bisagna told State Police that they responded to the other's panicked reactions. What happened next was an example of what sociologists call "contagious shooting."

"I hear Luke Wakefield behind me to my left, he starts saying, something along the lines of, 'Show me your hands, show me your hands,' it tells me he sees somebody inside," Bisagna told State Police. "I can't see what he sees."

Then Bisagna imagines a silver revolver—one he'd handed to another officer earlier that day—in Benavidez' hands, according to his interview with State Police.

Police recovered a knife from Benavidez' apartment, but no gun.

"I thought he was holding the same revolver that I saw [in another context] that morning," Bisagna told investigators in a shaky voice. "In my head it was, it was a silver revolver." He starts shooting when he thinks Benavidez approaches, firing 16 times and hitting him in the thighs and penis.

Bisagna had reacted to Wakefield, who was wearing sunglasses. Wakefield admitted that this made it difficult to see inside the dark room.

"I'm wearing my sunglasses and it's super dark inside, so I cannot see what he has" in his hands, Wakefield says.

At another point in the interview, he claims to have seen a knife in Benavidez' hands.

"All of a sudden I see his hands go up, and that's when Jeramie starts firing. And I'm like, shit, is that a gun? Like, what the fuck does he have? And I still can't see it. Again, I'm wearing my sunglasses, which is a horrible idea."

Wakefield fires the fatal shot from his rifle into Benavidez' face.

While some officers' body cameras were on during the encounter, police say none captured Benavidez being struck by bullets. The lack of video also leaves open the question of whether there was anything in his hand at the time he was shot.

Bisagna's camera might have been the only one pointed in that direction, but he inexplicably turned it off seconds before approaching the apartment—apparently in violation of the SFPD body camera policy.

Neither the city nor the police department will discuss whether either officer was disciplined for any actions that day or any other they worked at SFPD. The city has a policy of protecting officers' disciplinary records from public review. However, the city attorney's office tells SFR no records of discipline exist for Bisagna as of Dec. 9.

Meanwhile, both officers are still on the force: Bisagna was promoted to sergeant in July, and Wakefield, then a patrol officer, became a detective in April. This January, Wakefield fired his weapon during another SWAT operation, the subject of a different State Police investigation.

“An absolute shield for law enforcement”

Bisagna's decision to turn off his camera is mentioned in the complaint filed in the First District Court just over a year ago by Roseanne Lopez, the half-sister of Benavidez .

That choice by Bisagna could be the subject of a criminal or internal inquiry, though neither the city nor the district attorney's office have said so. But Lopez' civil complaint focused on overall systemic negligence, including SWAT commander Lt. Ben Valdez' alleged decision to "use weapons" rather than wait for negotiations.

In a response to the complaint, filed by the city's contract attorney Luis Robles, the city of Santa Fe denies nearly all allegations made by Lopez' legal team. As for damages to Benavidez, the city contended they resulted from "his own intentional and/or negligent acts."

It's boilerplate fare for Robles, whose private law firm Robles, Rael and Anaya often represents cities and counties when their cops kill. Had the case gone to trial, the city could have been forced to defend its mental health and crisis intervention training, digital record-keeping, internal disciplinary procedures and more, as well as the way it houses the homeless and mentally ill.

But instead, the family settled with the city for $400,000 on Nov. 7. In a conversation with SFR, Shannon Kennedy, lead attorney for Benavidez' family, says that even if the case had gone to trial, the state's tort law would have limited compensatory damages to that amount. A settlement meant the family could avoid the emotional trauma of a trial, she says.

"No matter how much a judge could have awarded the family, ultimately they only would have received $400,000," Kennedy tells SFR. "It would have just been symbolic. People have talked about challenging that cap as unconstitutional, because clearly no life is only worth $400,000. … It's not even a deterrent [against] overreaching by police."

Still, the fact that the city was willing to settle for the maximum amount under the tort law might indicate recognition of the damage police wrongfully inflicted on the family—even if no one will admit it.

Mark Fine, another civil rights attorney in Albuquerque, says public entities in New Mexico aren't usually eager to settle for the cap.

"It's often hard to get them to settle for [$400,000] because they figure, 'Well, if we take it to trial, that's our worst-case scenario, so why would we sign up for the worst case in terms of monetary judgement?'" Fine tells SFR.

Fine was the lead attorney who won a $4.25 million decision in state District Court for the family of a man shot and killed by Albuquerque police in 2009. But the verdict was symbolic; the family only recouped the $400,000 cap. That amount, designated by a state law passed in the late 1970s, would be $1.5 million today if it had kept up with inflation.

"That's a conversation with the family that has to happen early," Fine says, "because it's such a decisive limitation on litigation."

Kennedy, who settled the Benavidez matter, won a $5 million settlement in 2015 after Albuquerque police killed James Boyd. The large amount was possible because the suit was filed in federal court, where there are no limits to awards plaintiffs can receive.

But recent Supreme Court decisions bolstering legal protections for police have made federal court an "elephant's graveyard" for such suits, according to Randi McGinn, a civil rights lawyer in Albuquerque.

"It's where those cases go to die because of qualified immunity," says McGinn, who served as the special prosecutor in the unsuccessful criminal trial against the two Albuquerque officers who shot Boyd.

Qualified immunity as a concept originated from a Reconstruction-era law meant to permit civil litigation against public officials who used the "color of any law" to deprive a person of their Constitutional rights. But courts have routinely found that police officers who kill or injure people in the performance of their duties qualify for immunity from the law.

In a 2018 case decided by the US Supreme Court concerning a police officer who shot a Tucson woman seconds after arriving at the scene, the majority declared the officer's actions qualified because immunity "protects all but the plainly incompetent or those who knowingly violate the law."

In her dissenting opinion, Justice Sonia Sotomayor wrote that "[n]early all of the Supreme Court's qualified immunity cases come out the same way—by finding immunity for the officials." This, she continued, "transforms [qualified immunity] into an absolute shield for law enforcement officers."

For one case she settled in 2015, McGinn was able to get around both the qualified immunity hurdle in federal court and the tort cap in state court by first suing the city at the state level, securing an award amount of $6 million (but only being entitled to $400,000), and then filing suit in federal court, using the state court's ruling to argue the federal case. She calls the approach "legal gymnastics."

"It's a lot of work and really difficult," she says. "And it's why we've got such a horrible problem across the country with police continuing to shoot people without consequence."

“We want closure”

Santa Fe's law enforcement liability insurance, which covers most kinds of bodily injury, property damage, or personal injury committed by the city's cops, is active through July 2019. The city pays a $395,763 annual premium for this coverage to Travelers Insurance, one of the largest insurers in the country.

When someone sues over an officer hurting or killing somebody, according to city attorney Erin McSherry, and the insurer determines a payout is warranted, the city is responsible for up to a $50,000 deductible. Once its potential liability surpasses that amount, and so long as the actions fall within the parameter of insured acts, the insurance company has "the right and duty to defend" the city against any claim brought against it.

That means Travelers Insurance will try to settle civil suits against the city even if the officers involved are criminally charged and prosecuted. In addition to coverage up to $4 million, it pays the city's surety bond of a judgement pending appeal and helps with the cost of investigation.

Even though a $400,000 settlement is peanuts to a giant like Travelers Insurance, it is still in the carrier's interest for the city's cops not to invite lawsuits. The ways private insurers dictate policing settlements and reforms is an area of study that gets a lot less attention than other ideas for regulating cops, according to John Rappaport, an assistant professor at the University of Chicago Law Center.

"In assuming the financial risk of bad police behavior, the insurers become motivated to prevent it," Rappaport wrote in one paper. Because the chance of winning a civil suit against police is so low, Rappaport believes, cities are a lot more responsive and accountable to the insurance carriers when their police departments commit egregious violence.

Larger cities like Albuquerque, as well as states, are often self-insured. Mid-sized cities with a smaller tax base sometimes buy commercial insurance.

Rappaport believes state insurance regulators can take on a greater role encouraging police reform by, for example, requiring cities to pay greater deductibles or premiums. This would provide more financial incentive for cities to prevent abuse.

Placating insurance carriers as a way to reform police "put[s] more resources and focus into the day-to-day training and policy and education," Rappaport argues. "It's broader, more systemic and more preventive" than other reforms, such as trying to criminally prosecute individual cops.

Yet the process is opaque, and takes place away from the public and the raw demand for justice among the aggrieved. A lack of finality or admission of fault is its own form of injustice, according to Roseanne Lopez, Benavidez' half-sister.

In an unpublished letter she submitted to The Santa Fe New Mexican earlier this year, Lopez condemns DA Serna's office for its lack of transparency and delay of the investigation into the killing. The death of her brother and the agonizing wait for answers, she says, constitute a betrayal.

"We want closure. Why does it take more than 15 months to investigate a shooting that is caught on at least two body cameras?" Lopez writes. She concludes: "Anthony deserves justice. Until justice is done for Anthony, no one in the City of Santa Fe is safe from police abuse of power."