Family of teen killed in SWAT raid to sue city for wrongful death

After four months of waiting, attorney says APD still hasn’t released lapel camera footage and other records the family seeks

By: - January 6, 2023 5:00 am

Community members held vigil for 15-year-old Brett Rosenau, who was killed in a house fire caused by a tear gas grenade thrown by an Albuquerque police SWAT team in early July 2022. (Photo by Bright Quashie for Source NM)

Police threw a tear gas grenade into a home in the International District in July, burning the house down with a teenager inside, according to fire officials.

His family intends to sue the city of Albuquerque for wrongful death, according to their attorney, but the city’s failure to provide records may create a barrier.

An autopsy report showed that Brett Rosenau, who was 15, was alive when the house went up in flames, and ruled his death a homicide, according to the Albuquerque Journal.

A review from the New Mexico Attorney General’s Office concluded on Dec. 30 that police had an option to use non-lethal force early on, but instead ignited the circumstances that killed 15-year-old Rosenau.

He died of smoke inhalation from a fire caused by an officer as part of an Albuquerque Police Department SWAT standoff, according to the Office of the Medical Investigator and Albuquerque Fire Rescue.

A Bernalillo County Sheriff’s deputy, who was on the SWAT team, threw the tear-gas grenade, investigators found. He was called to help Albuquerque police capture Qiaunt Kelley.

Albuquerque Police Deputy Commander Kyle Hartsock said at an Aug. 5, 2022 news conference that police threw “multiple” tear-gas grenades around and into the house between 10:44 p.m. and 12:26 a.m. that night. He said police threw another tear-gas grenade through a window at the front of the home at 1:06 a.m., which fire investigators found was the one that started the fire.

Police charged Kelley with an unrelated robbery and murder of a local photographer one week after the raid.

‘Avoidable’ fatal risks

Police reform advocates, the family and Police Chief Harold Medina called on the New Mexico AG’s Office to review the police department’s use of the grenade shortly after the home burned down.

Attorney General Hector Balderas said in a statement that Rosenau’s death was “avoidable,” and police could have used different tactics to capture Kelley before they threw the tear-gas grenade, which “would have mitigated fatal risks.”

“I am requesting APD Chief Harold Medina and Bernalillo County Sheriff-elect John Allen work together to evaluate safe and effective non-lethal force options during felony apprehensions in order to enhance safety in our community,” Balderas said.

The term “felony apprehensions” as used in Balderas’ letter could be misleading in this context. At the time of Rosenau’s death, Kelley was wanted for violating conditions of his parole.

Investigations around the country have found through the years that law enforcement has caused buildings and homes to catch fire by using tear gas canisters during standoffs.

American Civil Liberties Union of New Mexico Deputy Director Leon Howard said Wednesday the incident highlights a need for legislation requiring police to deploy robust de-escalation tactics before violence.

“Too many families have lost their loved ones because law enforcement officers in our state defaulted to using deadly force before trying to de-escalate an encounter,” Howard said.

Rosenau’s family was excited to learn that Balderas stated the teen’s death was avoidable in his letter to Albuquerque police, said Taylor Smith, the attorney representing the family.

But they want more than lip service from Medina and the city, Smith said.

“It did leave me wanting for a lot more information,” Smith said. “Is somebody going to take a second look at this and potentially prosecute?”

A law enforcement task force was set up “to review these actions for criminality,” Balderas wrote in a letter to Medina that accompanied the results of the probe at the end of the year.

The letter does not mention any criminal referrals.

Spokespeople for the AG’s Office and the Bernalillo County District Attorney’s Office were not available for comment on Wednesday or Thursday about whether anyone is still reviewing the case for criminal charges. Source New Mexico also reached out twice to APD spokesperson Gilbert Gallegos on Wednesday and Thursday, asking to interview Medina. As of Thursday afternoon, Gallegos had not responded.

Record delays

Rosenau’s family and the community deserve justice, Harold said.

“Brett Rosenau was a 15-year-old child who had his whole life in front of him,” Harold said. “The officers involved in his needless and heartbreaking death and a family’s loss of their home must be held accountable.”

But the city hasn’t turned over information that’s needed to pursue a wrongful death case, Smith said. 

Rosenau’s family is already suing the city over a request for all of the records related to his death, including internal affairs files, lapel camera footage and incident reports.

What claims the family can bring against the city government in a wrongful death case, Smith explained, will be based on what they find through that records lawsuit.

As of Thursday, four months after Rosenau’s mother filed her initial records request, the city government has not handed over a single video from lapel cameras police officers wore that day, Smith said.

The city’s lawyers identified 469 videos recorded by officers who were there that July night, he added, and most do not involve material that can legally be shielded from public view. Still, the city is pushing back in court, arguing staff must review every second of footage to figure out whether they need to redact portions of it, Smith said.

But city officials sent two terabytes of information to the AG’s office for the independent review of the police during the standoff. Smith said he doesn’t believe any of that information was redacted.

The city’s lawyers are telling Roseneau’s family that it could take months, possibly even a year, to go over all video of the incident that led to his death.

“We don’t have that time to wait,” Smith said, neither from a social justice standpoint nor from a legal one. New Mexico law requires a claim of personal injury to be filed within three years of the incident happening, and Smith said if he doesn’t know exactly what the claims are, a judge could throw it out.

“This delay tactic on the part of the city of Albuquerque is concerning,” Smith said. “Let’s say they give it to me a year and six months from now, but I get a million records. I won’t even have time to go through it to ensure that my claims are valid before being subjected to dismissal.”

Use of grenade ‘may’ comply with DOJ settlement

It is extremely likely that the fire was caused by a Tri-Chamber Flameless Grenade thrown through a front window of the house where Rosenau died, said Jason Ramirez, captain of the fire-arson investigation division, at a news conference last year.

The grenade emits CS gas, commonly known as tear gas.

Balderas wrote that officers’ use of the grenade “may” be compliant with APD’s obligations under its Court Approved Settlement Agreement with the U.S. Department of Justice.

But, if APD had used “alternative measures” to capture Kelley before he barricaded the house, Balderas wrote, then they would not have needed to throw the grenade.

“There does appear to have been an opportunity to avoid the need to use the force that occurred here,” Balderas wrote.

The federal monitor overseeing police reform at APD highlighted a similar SWAT standoff in September 2019 where police launched munitions “to facilitate better communications” with a person barricaded inside a home.

Despite the monitor raising the issue, APD has continued to do this kind of thing for years, Smith said.

“At what point do they make a change?” Smith asked. “You know, if the DOJ oversight won’t do it, I don’t think a letter from Attorney General Balderas will either. At what point will they institute a change? We’re waiting to hear from Chief Medina on that.”

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.