GUEST COMENTARYpolice law newsDaniel CarrOfficer Involved: Elijah HadleyDriver charged with First Degree murder.A Deputy in Otero County, NewMexico has been charged with1st Degree Murder for the fatalOfficer-Involved-Shooting (OIS)of a 17-year-old.As we dive into this case - Iwant to highlight the conceptthat:Law enforcement officers must“justify” every round that leavestheir weapon.Every shot fired is a separate,distinct, and individual use ofdeadly force.Every pull of the trigger mustbe in accordance with the law.Also, that it is possible in afatal police shooting for somefired rounds to be reasonableand some to be unreasonable, inviolation of policy, and againstthe law.WHAT HAPPENEDOn June 25, 2024 just before11:00 p.m., Deputy Jacob Diaz-Austin(an Otero County NMSheriff's Deputy) responded to awelfare check on a 17-year-oldnamed Elijah Hadley.Deputy Diaz-Austin locatedElijah walking in the medianon U.S. Highway 70 near milemarker 240 outside the town ofMescalero.Deputy Diaz-Austin stopped hisvehicle and made contact withElijah.USE OF FORCEDuring the initial contact Elijahhad a sweater draped over hisleft arm and his right arm wasvisible.Deputy Diaz-Austin stated,“Stop right there“ and “What areyou doing?” Elijah did not respondand kept approaching.Deputy Diaz-Austin then stated,“Let me see your hand bro” and“Let me see your other hand”.At that point Elijah used hisright hand, reached under thesweater and pulled out a handgun.He moved the weaponacross his body and tossed it afew feet away from him.OIS #1As Elijah was in possession ofthe gun - Deputy Diaz-Austindrew out his firearm and firedfour rounds - striking and injuringElijah.The rounds landed just as thegun had been tossed.OIS #2 & #3Deputy Diaz-Austin then wentto the passenger side of his vehicleand began to collect medicalequipment - in order to renderaid. He then moved back to thedriver’s side of his police car andpositioned himself behind thedriver’s side door.Deputy Diaz-Austin yelled atElijah to not move or reach forthe gun.Elijah rolled to his stomachand yelled that it was a “BB gun!”Deputy Diaz-Austin observedElijah move towards the weaponand fired more rounds at him.The deputy did this in two separateseries of shots (OIS #2 ).The deputy informed dispatchover the air, “I can’t render aid.He is still moving and the gun isunderneath him.”The deputy then asked dispatchif he should “render aid” and hewas instructed to “stand by”.Deputy Diaz-Austin fired twentyrounds - fifteen of those were26 The BLUES - FEBRUARY ‘25
as Elijah laid on the ground. Elijahsustained fatal injuries.The weapon ended up being anair soft gun.CHARGESThis case was transferred fromthe Otero County DA’S Office tothe Bernalillo County DA’s Officefor review and decision to prosecute.12th Judicial District in Alamogordo,NM “conflicted outthis case” and asked the BernalilloCounty DA’s Office to acceptit and determine whether prosecutionwas appropriate.Last week The Bernalillo CountyDistrict Attorney’s Office ledby Sam Bregman submittedfirst-degree murder chargesagainst Otero County Sheriff’sDeputy Jacob Diaz-Austin.ANALYSISIn New Mexico (§ 30-2-1)First-degree murder consists ofkilling another person under anyof the following circumstances:• A willful, deliberate, and premeditatedkilling• During the actual or attemptedcommission of any felony• By an act which is greatlydangerous to another's lifeand evidences a depraved mindwhich has no regard for humanlifeDeputy Diaz-Austin is not guiltyof 1st degree murder.Here’s why: There is no evidencethat the use of deadlyforce was “premeditated” as thedeputy did not use any force untilElijah produced a handgun.By conducting a “welfarecheck” on Elijah - the deputywas not in the commission of afelony.After the initial OIS - the firstaction the deputy took was torun to the passenger side of hisvehicle and retrieve a first aid kit.This is evidence that the deputydid have a regard for human life.In New Mexico (NM Stat § 30-2-6 (2023)), “homicide is necessarilycommitted when a publicofficer or public employee hasprobable cause to believe he oranother is threatened with seriousharm or deadly force whileperforming those lawful dutiesdescribed in this section.”So, as usual, the legally relevantquestion goes like this,“Was there probable cause forDeputy Diaz-Austin to believethat Elijah posed a threat ofdeath or serious harm at the timeof the OIS?”THE FIRSTElijah produced a gun andDeputy Diaz-Austin respondedwith deadly force and fired fourrounds. Those first four shotsfired by Deputy Diaz-Austin werereasonable.Elijah produced a gun andmoved it across his body - crossingthe plane of the deputy. Anyofficer would perceive that as adeadly threat.THE SECOND & THIRDThe second and third series ofshots fired by Deputy Diaz-Austinare more complex. Without thefull body/dash cam video - itis difficult to reach a definiteconclusion. And, I have severalquestions:The BLUES - FEBRUARY ‘25 27
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