The Tempe Police Department is sticking by its decision to keep secret the names of two undercover officers involved in the fatal 2013 shooting of a medical-marijuana dealer.
Arizona State University, meanwhile, continues to hide the involvement of a campus police officer who was key to the investigation that led to the shooting of John Wheelihan in the backyard of his Tempe home.
New Times covered the shooting in a May 4 article based on a newly released police report. As we reported, the two officers who fired the fatal shots stated to investigators that Wheelihan had pointed a scoped rifle at them during the July 24, 2013, raid on the home.
Police discovered later the rifle was a pellet gun.
Wheelihan's actions, if the statements by the two officers are true, sound like a case of suicide-by-cop. Yet Wheelihan was a married father of two boys with no violence or suicidal behavior in his record.
The reason he didn't emerge from his house immediately while police had it surrounded may have been because he was locking up his dog in the bathroom, his mother told us. But that doesn't explain why Wheelihan went outside with the pellet gun — at the moment police were yelling at him to surrender.
Our article also raised the issue of whether a raid on the home by heavily armed officers was necessary. Wheelihan had been selling medical marijuana, which is something legal in half the country if you first obtain the proper state licenses.
Just before the ill-fated raid, an undercover officer tried to make a buy from Wheelihan pretending to be a patient and sending the dealer a state-issued medical-marijuana card. Wheelihan brought about an ounce of Sour Diesel to the rendezvous point, a parking lot near McClintock Drive and Southern Avenue, but called off the deal when he spotted what looked like undercover cop cars waiting nearby.
Tempe police soon saw Wheelihan's snarky Facebook post about the incident, in which he stated the "mother fuckers have to be slicker than that if they want to get me" and announced he'd no longer take on new patients. Police conducted the raid two days later. Wheelihan was hit by a total of three bullets from the two officers who fired at him. No other officers or witnesses saw Wheelihan point the rifle.
Some questions in this case may never be answered. And one of those questions is: Who fired the fatal shots?
National interest in police shootings and the so-called militarization of police increased greatly last year following the shooting of Michael Brown in Ferguson, Missouri. The subsequent December shooting of two New York City police officers by Ismaaiyl Abdullah Brinsley, who then killed himself, put authorities on high alert.
The Arizona Police Association pushed for a bill that would have kept secret for 60 days the names of officers involved in shootings. Critics, including representatives of news media outlets and even some police chiefs, worried that the lack of transparency would erode the relationship between the public and police.
Citing "unforeseen problems" that could arise because of the bill, Governor Doug Ducey vetoed it in March.
But as the two-year-old Wheelihan case shows, the bill's veto doesn't mean the public will always find out which officers are behind the trigger in a fatal shooting.
Lieutenant Mike Pooley, Tempe police spokesman, explained that the two officers who shot Wheelihan continue to work in undercover assignments. Blowing their cover by naming them would make them unable to keep working those assignments, and possibly endanger others, Pooley said.
At New Times' request, Pooley answered several questions about the officers. He confirmed they are not on the so-called Brady List — a list of officers whose testimony in court could be compromised because of a history of lying.
Pooley also released the officers' disciplinary history — they each had minor blemishes on their records, but nothing interesting. Neither has been involved in a shooting previously, and they were both cleared of any wrongdoing in the standard investigation that took place after the Wheelihan incident, Pooley said.
Considering the lack of hard evidence for questioning the officers' version of events, we don't see a reason to press Tempe for the names. Arizona public records law allows citizens (or media outlets) to sue in Superior Court when public records are delayed or withheld without good cause. The law allows excepts the release of records when withholding them is deemed in the government's best interest. A judge may order that the requester's legal expenses be reimbursed by the agency that withheld a public records — but only if the court sides with the requester.
Had the Wheelihan case been more questionable, we might have kept pursuing the names. But for now, Tempe intends to keep the names hidden indefinitely. (We may end up obtaining the names from another source, in which case we'll have an ethical decision to make about publishing them...)
Dan Barr, a local attorney with Perkins Coie who represents the First Amendment Coalition, points out that revealing the names of officers involved in shootings may be well within the public interest.
When police shootings occur, "it's important for us to know as much as possible — to know not only what happened and how it came about, but how police are dealing with it," he says.
Yet the release of that information has to be balanced with other interests, he adds.
In other words, if exposing undercover officers puts them or their families in danger, then it shouldn't necessarily be done. Barr says he wouldn't support a law that always forces the release of an officer's name, regardless of the circumstances of a shooting, anymore than he'd support a law that always withholds the name.
One problem, though, is that an agency could exaggerate the reasons for keeping an officer's name secret. In theory, a citizen or news outlet that wants the name could take the issue to court and have a judge do an in-camera review of the police agency's evidence for withholding the officer's name. New Times has no plans to do that in the Wheelihan case.
So, the names of the Tempe officers who shot John Wheelihan will remain hidden — as will the name of the ASU detective who was involved in the Wheelihan case.
ASU told New Times in February that the campus police agency has "no records" related to the Wheelihan case. Yet the Tempe police report states clearly that an ASU detective was entrenched in the case and was on-scene during the raid. When we let ASU know what the Tempe report said and asked whether the ASU police officer completed any paperwork related to the case, ASU ignored us.
While ASU may want to keep its detective's name a secret for the same reason Tempe wants to keep its undercover officers' names secret, it's odd that ASU won't even acknowledge that it worked on the case, or release any records whatsoever about the detective's role.
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
Secrecy, it seems, is sometimes the government's best policy.
Got a tip? Send it to: Ray Stern.