EL PASO, Texas (KTSM/KTEP) – Gabriela Miranda and her husband took her brother Daniel Diaz to the Lunch Box for menudo. Two days later, he died after police tried to arrest him at the same East El Paso restaurant.
“He was my brother, and I loved him very much,” Gabriela Miranda said. “People don’t understand mental illness.”
Diaz called out for someone to let him in and was also seen lying down next to the front door, according to witness statements given to police. The 911 caller said he thought Diaz might be intoxicated.
Seven police officers responded to the call and attempted to arrest Diaz after he pulled the restaurant door open and ran inside. He was tased twice, punched, and kicked by officers as they handcuffed him after he fell onto the kitchen floor, according to police statements provided to investigators from EPPD’s Internal Affairs and Texas Rangers.
Diaz was pronounced dead on the way to the hospital.
“In our hearts, we think he was looking for us in the state that he was in,” Benjamin Miranda, his brother-in-law, said. According to his family, Diaz suffered from mental illness and drug addiction.
It would be nearly two years for Diaz’s family to receive answers about what happened to him in his final moments. The family’s attorneys say they were stymied at every turn by the El Paso Police Department and the City of El Paso. Only through a Judge’s court order in January 2023 was the family given the information and video they’d been asking for – but those videotapes left more questions than answers.
An investigation by KTSM and KTEP also encountered the same runaround when requesting records and security footage obtained from the El Paso Police Department.
Daniel Diaz’s cause of death is listed as ‘Sudden Death During Law Enforcement Subdual or Restraint.’ The manner of death is homicide, according to an autopsy by the El Paso County Medical Examiner’s Office.
Diaz also had methamphetamine in his system, and an independent medical examiner said it could have been enough to kill him, even if he hadn’t had a violent encounter with El Paso Police officers that day.
The medical examiner’s report provides a detailed list of blunt force trauma injuries sustained to his head, torso, and extremities the night he died.
Even after a state judge’s ruling, the City took nearly four months to release security camera video under the Texas PIA to KTSM and KTEP. The videos show seven El Paso Police officers on top of Diaz inside the restaurant’s kitchen, repeatedly punching and stomping on him until they handcuffed him.
The police department’s Internal Affairs unit and the Texas Department of Public Safety’s Texas Rangers investigated his death. Officers involved in Diaz’s Arrest provided written statements to the Rangers.
Investigators also examined physical evidence videos and gathered witness and police statements.
El Paso Police Department public information officer Robert Gomez said Diaz’s case was also referred to the disciplinary review board, or DRB, comprised of 12 civilian volunteers and on-duty police officers.
“The officers were exonerated,” Gomez said. “That is something that did go before the DRB; it was presented, and the board unanimously decided to exonerate the officers of any wrongdoing.”
The 911 Call
“A guy he looks like he’s intoxicated came into the Lunch Box,” bystander Tony Munoz reported as he called 911 that afternoon.
Police said Diaz was attempting to enter the closed Lunch Box on Buckner before officers arrived. Witnesses who saw Diaz before police got to the restaurant said he jerked and banged on the building’s door, calling someone to open up, according to an investigative report by the Texas Rangers. Eventually, Diaz became exhausted and laid on the ground.
The 911 dispatcher asked Munoz if Diaz needed medical attention at the scene, and he answered, “No. He’s lying on the floor, so I don’t know.”
A lone police officer arrived at the request of bystanders watching Diaz across the street.
The officer commanded him to “stay back, sit down, and breathe” after he said he was experiencing a panic attack and began speaking to himself. The officer noted Diaz heard voices telling him to hurt her, and he allegedly said his dad had once worked at the restaurant.
Police officer Alexis Maldonado raised her taser at Diaz when he appeared to take a fighting stance and then stopped and turned back to the door. She radioed for assistance, concerned he may attack her.
Shortly after, two police officers sped into the parking lot of the Lunch Box and darted toward Diaz after he tugged the restaurant’s locked door open.
Maldonado, who had one year of experience with EPPD, and two other police officers chased Diaz into the business, tasing and getting on top of him while he was on the floor in the kitchen. They held him face-down and attempted to grab his hands and legs to restrain him as he thrashed on the ground.
“I was near the subject; I observed officers trying to handcuff the subject. I observed the subject to have his arms tucked underneath his body, preventing the officers from placing him in handcuffs,” responding Officer Joshua Perez described in his written statement to investigators. “I heard officers give multiple verbal commands to ‘stop resisting’ and to ‘let me see your hands.’ However, the subject did not obey the verbal commands.”
Four more police officers arrived, and all seven began wrestling with Diaz. His nose began to bleed, and the officers struck his limbs to subdue him. For three minutes, the police repeatedly struck Diaz’s face, back, and legs until they handcuffed him.
The seven officers carried him to the lobby, where they realized Diaz stopped moving. They checked his vitals, picked him up again, and carried him to an open area near the register, where they once again checked to see whether he was breathing.
The police carried Diaz outside the restaurant, and three minutes later, officers began resuscitation efforts in the parking lot. An ambulance arrived and took Diaz to a hospital, where he was declared dead.
Maldonado described injuries she sustained during the encounter with Diaz in her written report to internal investigators, “I felt my leg to be wet; that is when I observed blood on my clothing from the subject. I also started to feel pain in my right hand and noticed bruising. FMS was requested back to the scene to check my hand. They advised I should seek medical attention, which I did the following day, and was subsequently placed in a cast for my right hand, pending further testing.”
Texas Rangers Investigation
As state law requires, in-custody deaths involving police require an investigation by an independent law enforcement agency.
The written statements from the seven officers involved in the incident inside the Lunch Box’s kitchen were obtained by EPPD’s internal investigators days later – four to seven days after the deadly encounter.
An investigation by the Texas Department of Public Safety’s Texas Rangers labeled its investigation as “other” and concluded Diaz’s death as “questionable,” according to a copy of the agency’s report. The Rangers’ report revealed they did not independently speak with any officers involved in the incident or with witnesses who initially called 911. Instead, the Rangers relied on the voluntary written statements provided to El Paso Police’s internal investigators.
A two-year EPPD internal affairs investigation recommended no disciplinary action against any officers connected to Diaz’s death. None of their Internal Affairs Disciplinary History cards mention their presence when he died.
Maldonado resigned from the police force a year later, and the remaining six officers remain employed by the El Paso Police Department.
Searching for Answers
Without access to written reports or security footage of what happened the day he died, Diaz’s family was left wondering what happened in the eight minutes he was inside the Lunch Box.
They filed an initial Open Records Request with the El Paso Police Department on July 27, 2021. The request was denied, citing an ongoing investigation into the incident.
Documents later revealed El Paso Police closed their criminal investigation on Aug. 4, 2021, and referred the case to then-District Attorney Yvonne Rosales’ office for a decision on any possible charges for any of the seven officers involved.
The Diaz family made a second request for information on June 22, 2022, and were once again told by the City Attorney’s Office that the case was under investigation and most of the requested information could not be released.
The Texas Rangers eventually released 54 pages of their investigative report in a separate Open Records Request, and the City released only basic information from their 175-page report.
“We got a one-page report from the city, with one paragraph,” Gabriela Miranda said.
Dissatisfied with the response, they e-mailed the District Attorney’s Office to determine whether they were still investigating the case. Assistant District Attorney Rene Flores responded on Aug. 24, 2022, “This incident is not a case in the District Attorney’s Office.”
The Diaz family retained El Paso civil rights attorneys Lynn Coyle and Christopher Benoit to compel the City to release records related to the investigation into Daniel Diaz’s death.
“Paying thousands of dollars for something that should have cost dollars through an open records request,” Benjamin Miranda told KTSM/KTEP.
Coyle said it left the family frustrated they were still not receiving information from the City, “They were very concerned and disappointed, frankly, that they were not able to obtain the basic information about the facts of their loved one’s death that they were absolutely entitled to.”
Coyle & Benoit filed a lawsuit against the City of El Paso on Oct. 18, 2022, for the release of all records relating to Diaz’s case, rebuking the City’s assertion there was an ongoing investigation.
“We then communicated that to the City and said, ‘Well, no, actually, there is no pending investigation.’ There is no lawful basis to withhold the records, and they continued to do that,” Coyle explained.
Judge Melissa Baeza sided with the Diaz family on Jan. 23, 2023, ruling the City must release all documents and videos of El Paso Police’s investigation into Daniel Diaz’s death.
Due to a statute of limitations, Diaz’s family had three months to decide if they wanted to file a lawsuit against the City. In Texas, civil lawsuits for wrongful death must be filed within two years from the day of the subject’s death. The family ultimately decided not to sue.
“What we believe is that the city was trying to stonewall us, leading us up to that statute of limitation for them to say, ‘you can’t do nothing to us anymore,” Miranda said.
The El Paso Police Department’s Collective Bargaining agreement allows up to two years to complete investigations and recommend potential disciplinary action in use of force or in-custody death cases.
The City Attorney’s office says they rely on information from the El Paso Police Department to determine whether information is releasable under law.
Historically, the City has used the pending investigation exception to the release of police records when a case is pending an investigation with the police department or with the District Attorney’s Office. The TPIA requires that an entity produce records that are in existence and releasable at the time of the request. Our office relies on EPPD records staff to determine whether an EPPD case is still open as a pending investigation or was referred for prosecution to DA’s office.City Attorney Karla Nieman
Meanwhile, while the Diaz family battled for records in court, KTSM/KTEP was contacted by the administrator of social media outlet FitFam, advising of footage from inside the Lunch Box. Despite being told about the video, FitFam’s administrator didn’t have a copy and felt local journalists should investigate the incident, “I just wanted to shed light on the department’s past lack of due diligence. Especially in in-custody deaths.”
An initial Open Records request was filed on behalf of KTSM and KTEP on Feb. 3, 2023, with an attachment of Judge Baeza’s orders to release responsive materials. While written reports, copies of officer dashcam videos, and witness cell phone videos were released on Feb. 24, the 911 transmissions from Pebble Hills Regional Command and video inside the Lunch Box were missing.
After approaching the owners of the Lunch Box and witnesses who initially called 911 the afternoon of Diaz’s death, both said they no longer had copies of the videos, and El Paso Police likely had the only copies available.
“What we want to see is that the city simply decides that they are going to be responsive to these requests. They are not going to be withholding records,” said Coyle. “They’re going to be transparent, and the policy is going to be to release rather than to withhold.”
A second Open Records Request was filed by KTSM/KTEP on March 21, specifically requesting the interior Lunch Box security footage. The City eventually released the requested files on April 5.
According to the El Paso Police Department, it took nearly two years for the internal Disciplinary Review Board investigation to complete.
“It is very, very troubling that journalists are also being prevented from obtaining these records because whatever the topic that’s being explored, whether it’s law enforcement decision-making or conduct. A democracy survives on an educated citizenry,” said Coyle.
In 2017, State Rep. Joe Moody introduced legislation to prevent Texas entities from withholding information in cases where the suspect is dead. The so-called “dead suspect” loophole legislation known as HB30 was finally passed in the 2023 session – with Governor Greg Abbott allowing it to become law on Sept. 1 without officially signing off on the bill.
The legislation does not prevent an entity from refusing to release information when citing an open investigation, even when no such investigation is proven to exist.
“Once people found an avenue to keep information secret, they utilized it, and I don’t put it past anybody to continue to try to find wiggle room in the law that was passed. And we’ll just have to see how that unfolds,” said Moody.
The City Attorney’s Office says they are aware of HB30 and its impact on the release of records in cases where the person described in the record is deceased. “The City is prepared to comply with this new bill and the changes it makes to the Texas Public Information Act,” Neiman said in a statement to KTSM/KTEP.
Diaz’s death and his family’s subsequent search for answers raise further questions about the El Paso Police Department’s Use of Force policy and training concerning citizens experiencing mental crises.
KTSM and KTEP examined other well-documented cases involving questionable use of force and the withholding of information by the El Paso Police Department and the City Attorney’s office. These questions will be explored as our five-part series continues.
This investigation is a collaboration between KTSM’s Karla Draksler, Andra Litton, and KTEP’s Aaron Montes. KTSM photojournalist Ruben Espinoza and KXAN’s Josh Hinkle contributed to the KTSM report.