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Culpability for Deadly SWAT Fire May Go Up in Smoke

Police officer invokes "right to remain silent"


There are still no answers for the public when it comes to who is responsible for the deadly fire started by police in July that claimed the life of 15-year-old Brett Rosenau. At least one of the Albuquerque Police officer involved wanted to protect himself from any possible criminal charges. The officer attempted to do so by claiming in his official report of the incident that it couldn’t be used against him in a criminal proceeding.  

“I am giving this statement based upon my understanding that this statement and any information derived from this statement, cannot be used against me in any criminal proceeding,” Albuquerque Police Dept.’s (APD's) Christopher Duda wrote in his incident report following the deadly SWAT standoff that killed Brett Rosenau in July.

That sentence was part of a longer paragraph, commonly known as a Garrity statement. It’s based on Garrity vs. New Jersey, a 1967 U.S. Supreme Court Case that essentially allows for the right to remain silent.

Right to Remain Silent

According to, a free law project from Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law, the case began when the Supreme Court of New Jersey ordered the Attorney General to investigate the irregular handling of municipal court cases in certain neighborhoods. During the investigation, police officers were questioned and were told that any statements they made might later be used against them in criminal prosecution. They were also told that they could be fired if they refused to answer questions.

A group of police officers who answered the questions were charged and convicted of conspiracy to obstruct the administration of traffic laws. They appealed, arguing that the statements they made were coerced, and the U.S. Supreme Court agreed in a 5-4 decision.

It’s not uncommon for a public employee to assert their constitutional rights under Garrity in the course of an administrative or internal investigation. In fact, it’s rather common practice. The rights have to be asserted by the person that is being questioned, although some Human Resources departments take the further step to inform employees of their rights and many different unions provide the information to their members regularly.

It is however, uncommon for a Garrity statement to be included in a police report, at least anecdotally, said five different attorneys who regularly pursue civil litigation against police departments. They also toldThe Paper. they have never seen it done before.

“The question is, is a police report a compelled statement that the officer is making, and if so, would Garrity apply,” Albuquerque Attorney and former Albuquerque Police officer Thomas Grover said. “I think it's a novel approach to put Garrity in a police report, because I don't think it's a compelled statement. I think it's an aspect of their job. It's kind of like if they were called to the stand to testify in a criminal trial. That's what they're expected to do.”

Grover has years of experience with police reports both as a former APD officer and as an attorney who regularly represents law enforcement officers in wrongful termination or disciplinary cases.

So why did Duda include a Garrity statement in his report?

APD Public Information Officer Gilbert Gallegos said he had no idea why Duda included the statement. But he did say that the Multi-Agency Task Force investigated the incident and that such statements are common during their investigations. He indicated that there was nothing unusual about seeing the statement in a police report.

Needlessly Raising Concerns

Grover had a different take.

“I think putting a Garrity statement in a police report needlessly raises a concern that there's going to be a criminal investigation into that (report author’s) or another officer's conduct,” Grover said.

Whether or not there will be any criminal charges for any of the officers involved remains to be seen.

“The independent review of the actions of law enforcement that led to the death of Brett Rosenau is ongoing,” NMOAG Director of Communications Jerri Mares said via email on Oct. 12.

It’s possible that Duda was concerned about the actions of officers during the July SWAT standoff that led to 15-year-old Brett Rosenau’s death and the arrest of Quiaunt Kelley.

Duda wrote that he was standing near the side of the house when he heard officers call out that a man had fallen from the ceiling of a shed on the property. According to his report, he ran up to a fence and stood on bricks in order to be able to deploy 40mm less-lethal munitions over the wall.

“I observed Qiaunt laying on his back it appeared he had the wind knocked out of him from the fall,” Duda wrote. “BCSO call (sic) for him to be his with the 40mm which did not meet our policy. Qiaunt was just laying on his back and was not an immediate threat to officers.”

The Paper. previously detailed the moments when Kelley appeared to fall from a ceiling and then put his hands in the air, with some officers saying it looked as if he attempted to surrender. Moments later, flash-bang grenades were deployed just feet away from him.

“Qiaunt stood up with his hand up and empty and was still in the doorway posing no immediate threat to officer, BCSO deputies on side 2 stated again to again. This would have been out of policy deployment and I did not deploy.”

That’s when Kelley went back inside the house.

The Paper. previously explained how APD used a warrant issued by the New Mexico Corrections Department’s parole division in March to get a search warrant enabling the SWAT deployment and action to arrest Kelley in July after they suspected him of other crimes.

Warrants are Low Priority

When asked if APD could have prevented the additional crimes Kelley is accused of by locating him and arresting him in March, and if they could be doing the same with others who have absconded from parole, Gallegos said those warrants are just tools to be able to pull people in for questioning.

“We don’t, I mean, there’s thousands of warrants out there. We’re not chiefly charged with going and looking for people with warrants,” Gallegos said of APD. “But we do target them, especially if we do have a priority. There’s a higher priority if offenders are violent or someone we’re looking for related to investigations, and if they happen to have warrants, that’s a tool used to pull them in.”

There are thousands of warrants active in Albuquerque on any given day. On Oct. 14, Gallegos said via email that there were over 63,000 active misdemeanor warrants and 5,283 felony warrants listed at APD’s dispatch center.

There are, however, surprisingly few warrants for people who have absconded from parole. NMCD Spokesperson Carmelina Hart said on Oct. 13 that there had only been 156 parole retake warrants issued by the parole division in the metro area since the start of 2022 and of those, 62 had been captured.


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