Sources: No federal charges likely for APD Foothills shooters

Dominique Perez and Keith Sandy
Dominique Perez and Keith Sandy

ALBUQUERQUE (KRQE) – The two Albuquerque police officers who shot homeless camper James Boyd in the back, killing him, during a March 16 standoff in the Sandia foothills likely will not face criminal charges in the federal system, KRQE News 13 has learned.

Although a federal investigation is ongoing, the evidence so far is not enough to get a team of FBI agents, local prosecutors from the U.S. Attorneys Office and lawyers from the Department of Justice over the towering hurdle that stands in front of charging officers Keith Sandy and Dominique Perez with criminal civil rights violations, according to multiple sources who are familiar with the investigation.

Federal prosecutions in police shooting cases are rare, but not unheard of. They require the stiffest proof: essentially the same standard as deliberate murder.

The team on the ground in Albuquerque does not appear to believe it has the evidence to clear that standard and win the Boyd case in federal court, the sources said.

But the Justice Department has not yet made a final determination on whether to pursue charges.

A federal grand jury during the past few months has heard testimony and reviewed evidence in the Boyd shooting case, News 13 has learned. It is unclear whether prosecutors have asked the grand jury to vote on indictments, or whether they intend to.

In the federal system, prosecutors sometimes use grand juries as a vehicle to subpoena witnesses and review evidence, not as the final say in whether charges will be brought.

There is a second possibility.

Bernalillo County District Attorney Kari Brandenburg earlier this month received more than 1,000 pages of evidence and nine DVDs containing recordings from APD’s investigation of the shooting. That probe is separate from the federal investigation, and Brandenburg is reviewing the evidence for possible prosecution on state charges.

Brandenburg has a wider variety of choices for potential charges: the full panoply of state laws, including charges less than murder such as manslaughter and aggravated battery with a deadly weapon. In her 15 years as DA, she has never sought charges against a police officer in a shooting case.

Some of the evidence in the Boyd case is compelling — in the court of public opinion, anyway.

A video from Perez’s helmet-mounted camera shows Boyd agreeing to gather his belongings and walk down out of the foothills with police. He assures the officers that he “can keep (them) safe” and asks that they “not switch up (their) agreement.”

That’s when Sandy throws a flash-bang grenade at Boyd’s feet. Then officer Scott Weimerskirch sics his police dog on Boyd, and the 39-year-old with a long history of mental illness pulls two small knives from his pockets.

James Boyd shooting
Still image from Boyd shooting

The officers order him to drop the knives. He doesn’t. As Boyd turns away from police, Sandy fires three shots from his modified M4 assault-style rifle. Almost simultaneously, Perez shoots three rounds from a similar gun. Bullets strike Boyd in the back and the arm.

He died the next day at a local hospital.

The video went viral, effectively tossing a match into a barrel full of gunpowder in a city that already had grown wary of a police department whose officers have shot nearly 40 people since 2010. Street protests and takeovers of the Mayor’s Office and City Council chambers ensued.

Months later, tensions rose anew.

In late September, several news organizations obtained a long-rumored dashcam audio recording in which Sandy describes Boyd to a State Police sergeant as a “f***ing lunatic.” Sandy then tells the sergeant: “I’m gonna shoot him with a (unintelligible) shotgun here in a minute.”

Visceral as those two recordings are, federal investigators have faced a nearly insurmountable standard to move forward with charges. It demands close to the equivalent of first-degree murder proof.

To charge a police officer with a criminal act for shooting someone while on duty, prosecutors must proceed under Section 242, Title 18 of the U.S. Code. Section 242 requires proof that the police officer “willfully” deprived someone of a constitutionally protected right.

In the Boyd case, that would be his right to live — and prosecutors would have to prove at trial beyond a reasonable doubt that Sandy and Perez intended to deprive him of it.

Dominique Perez and Keith Sandy
Dominique Perez and Keith Sandy

News 13 has learned that agents and prosecutors have appeared frustrated with a seeming inability to develop sufficient evidence for a prosecution.

Reached by telephone this week, Assistant U.S. Attorney Holland Kastrin, one of the prosecutors on the Boyd case, declined to comment. She referred questions to the spokeswoman for the U.S. Attorney’s Office. The FBI also referred News 13 to the U.S. Attorney’s spokeswoman, who sent a written statement.

“The Justice Department’s independent investigation into the March 16, 2014 Albuquerque Police Department officer-involved fatal shooting of James Boyd is ongoing and no decisions have been made as to whether charges are appropriate in this case,” the spokeswoman, Executive Assistant U.S. Attorney Elizabeth Martinez, wrote in the statement.

According to a New York Times report on Oct. 17, federal officials investigating the fatal shooting of Michael Brown by Ferguson, Mo., police officer Darren Wilson are encountering the same kinds of hurdles their colleagues in Albuquerque have faced.

According to the Times, investigators looking into that shooting don’t have enough evidence for criminal civil rights charges, either.

Police shootings have, however, led to federal prosecutions in the past. For example, the Justice Department won convictions and sentences ranging from six to 65 years against five New Orleans police officers for their roles in a shooting on the Danziger Bridge in the days after Hurricane Katrina in 2005.

But in a huge blow to the DOJ, a U.S. District judge later overturned those convictions and ordered new trials for the officers after it was revealed that federal prosecutors had criticized the officers anonymously in online comment forums. The postings, according to the judge’s order, thwarted the officers’ right to a fair trial.

Here in Albuquerque, Sandy and Perez have told APD detectives conducting the state investigation that they feared for their own safety and the safety of their fellow officers when Boyd pulled the knives out.

Generally, police officers have significant leeway to use deadly force if they perceive an imminent threat. That perception is measured against a standard of “objective reasonableness” defined in the landmark Supreme Court case known as Graham versus Connor.

That aside, a decision not to prosecute from the Justice Department, Brandenburg or both has the potential to inflame the city.

Albuquerque Mayor Richard Berry’s administration since July has been in negotiations with the Justice Department to reform APD. That process was set in motion after DOJ investigators released a damning set of findings in April, saying city police had a pattern or practice of violating citizens’ civil rights through the use of force, and department leadership had a parallel pattern of looking the other way.

Those findings are part of a civil process, which is separate from criminal investigations of individual incidents such as the Boyd shooting.

The reform negotiations are secret, but DOJ officials have met with family members of men shot by APD officers, civil liberties groups and others to listen to those groups’ concerns and provide vague updates about the way forward for police reform.

Many of those who have met with the DOJ have made it clear that, regardless of how iron-clad the policy and training reforms are, they will not be fully satisfied unless some APD officers are criminally indicted. Since the shooting, Sandy has been on paid leave. Perez is on desk duty.

The release of Perez’s helmet-camera video and Police Chief Gorden Eden’s subsequent pronouncement that the shooting was justified pushed more than 1,000 people into the streets to protest. It remains to be seen how police-reform advocates will react if no charges are brought.

 

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