Nine months after a Tempe police officer shot and killed 14-year-old Antonio Arce, the Maricopa County Attorney’s Office is still weighing whether the officer should face criminal charges. 

Former Officer Joseph Jaen shot Arce on Jan. 15 after the teen ran from the officer while clutching what law enforcement said appeared to be a gun. The weapon turned out to be a nonlethal airsoft gun. 

Amanda Steele, spokeswoman for the Maricopa County Attorney’s Office, confirmed this week that the case is still pending review. She noted the review process is taking longer than it typically does due to the high number of police shootings that occurred in 2018. 

Tempe has yet to release records

The lack of decision has led to delays in the release of public records from the case.

A Tempe police spokesman told The Arizona Republic that the police report, body-camera footage and other records won’t be released until the County Attorney’s Office makes a decision.

The Police Department previously released a short video of the shooting to the media shortly after it occurred. The footage stopped before Arce’s body could be seen lying on the pavement.

Police later screened the rest of the body-camera footage for select members of the media, including The Republic, after allegations of misconduct emerged. The full video showed the teen’s final moments and confirmed an airsoft gun was found under his body. The department prohibited reporters from making audio or video recordings of the footage. 

Daniel Ortega, the attorney for Arce’s family, said they’ve faced the same delays. The attorney requested an exhaustive list of records on Feb. 14.

Tempe agreed to provide the requested documents as long as Ortega agreed to keep some of the records confidential. Ortega acknowledged that it’s not uncommon for there to be conditions to keep some records from the public during an investigation.

However, Ortega said he was shocked when the city asked the family to sign a nondisclosure agreement in May forbidding them from sharing the report, three body camera videos, 911 calls and dispatch reports. The deal didn’t have an end date and a violation of the agreement would lead to a $1 million fine to be paid by Ortega’s law firm.

“I’ve never seen anything like it,” he said. “It was totally unacceptable and not legal under the public records law. I never wanted to agree to that.”

The family ultimately declined to sign the agreement.

Emails between Ortega and a legal adviser for the Police Department show the city offered to renegotiate the terms of the nondisclosure agreement. It appears Ortega did not propose an alternative. 

Arce family sues Tempe

Ortega filed a notice of claim, which serves as a precursor to a civil rights lawsuit, on behalf of Arce’s parents in June without seeing anything other than the three body camera videos that were also viewed by the media.

The family is demanding $5 million to settle the case.

Court records show Ortega also filed a complaint against Tempe in Maricopa County Superior Court in September for failing to provide the requested records in compliance with Arizona public records laws. 

“(Tempe) has failed to furnish any of the records — much less furnish them “promptly” — and has not provided legitimate explanation for why they are being withheld,” Ortega wrote. 

On Wednesday, Ortega told The Republic a legal representative for the city contacted him about releasing the records prior to an Oct. 22 court hearing on the public records complaint. It’s not clear whether that would include all the records and if they would also be provided to the media. 

Nikki Ripley, spokeswoman for Tempe, was unable to confirm the exchange, but she said in a statement that the city “hopes to work with Ortega Law Firm and the family of Antonio Arce to resolve this matter in the near future.”

Jaen’s retirement case still pending

Tempe police officials previously said they are also conducting an administrative investigation into the shooting, which will determine whether Jaen should face any internal disciplinary actions. 

However, Jaen resigned from the department in May. 

He’s currently seeking accidental disability benefits from the city. An officer can file for accidental disability, which is also known as medical retirement, if they experience a physical or emotional injury on the job that renders them unable to perform their duties. 

The Tempe Public Safety Personnel Retirement System board doesn’t disclose which medical or mental health condition officers cite when filing for accidental disability. Jaen will have to undergo an independent medical exam before his application can be reviewed.

Reach public safety reporter Bree Burkitt at [email protected] or at 602-444-8515. Follow her on Twitter at @breeburkitt.

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