10/25/2016
Think Progress has an article up regarding the Albuquerque-s-police-force- and the outcome of the criminal trial involving two officers charged in his death. The jury was unable to reach a verdict, resulting in a hung jury. No word on a retrial.
Officer involved shootings are subjected to several levels of investigation. There is a criminal investigation to see if state law has been violated. There is an internal affairs investigation to see if department policy was followed. These are separate investigations. Some agencies will call in an outside agency, in Texas, the Texas Rangers are often called. Some areas of the country have civilian review boards who review the police investigation and make recommendations. The Special Prosecutor is not unreasonable in pursuing this case but I doubt that she will prevail. But even if she fails in her purpose, she will have succeeded in demonstrating the detail involved in conducting an officer involved shooting investigation.
In March of this year Albuquerque Police Officers felt like they had no choice watch as James Boyd is shot by Albuquerque Police Officers.
Two Albuquerque police officers, one current and one now retired are bound over for trial on murder charges. They are charged in the death of James Boyd, 38 a homeless schizophrenic who was killed after a three hour standoff with police. Boyd was shot after agreeing to come with officers, but was wielding a knife in either hand. This is a story only Joseph Heller of Catch-22 fame could do justice to, unfortunately Mr. Heller is unavailable and you are stuck with me. This is the first time that a Special Prosecutor has brought charges against Albuquerque police officers acting in the line of duty.
Police and prosecutors are typically portrayed as a monolithic force acting in lock step with one another. This isn’t true on a daily basis and it isn’t true when special circumstances, such as this arise. The death of Mr. Boyd is a great illustration of how the monolith, isn’t. Mr. Boyd was a homeless schizophrenic who first came to the attention of police in 2007. Since that time he has been arrested a dozen times, twice for assaulting police officers or jailers, more often for criminal mischief, oftentimes while in custody. Various law enforcement officers determined that they had probable cause and reason to believe that Mr. Boyd committed an offense against the peace and dignity of the state and arrested him. The District Attorney’s office did not pursue civil commitment and dismissed the criminal charges.
New Mexico has an involuntary commitment law that says people who represent a danger to self and others can be transferred to a state hospital and until they are deemed competent. EXCEPT if they are charged with a misdemeanor. If they are charged with a misdemeanor they cannot be forcibly restored to competency. In Mr. Boyd’s case the mental health professionals, according to his attorney John McCall, stated he was not dangerous and could not be restored to competency. The state hospital released him.
Let me see if I can clarify the situation. James Boyd is crazier than a shithouse rat. Because most of his offenses are low level the District Attorney opts not to hold competency hearings and dismisses the charges out of hand. Mr. Boyd is to crazy to be in jail. On two occasions Mr. Boyd made it to the state hospital for evaluation and the mental health professionals agreed that Mr. Boyd was crazy and could not be effectively treated. However, he was not crazy enough to be held long term. Recall Mr. McCall’s restating of the assessment of Mr. Boyd. Mr. Boyd cannot be restored to competency, but he is not dangerous. His attorney admits that Mr. Boyd had a history of assaults, but was essentially harmless.
Except that is not what the mental health professionals said. The typical language runs something like this, The patient does not pose a danger to self or others, due to metal disease of defect. This means that when Mr. Boyd decides to assault or injure somebody, his intent is to assault or injure somebody, as a opposed to assaulting a person he mistakes as a giant hissing cockroach. In other words, Mr. Boyd is able to formulate reasons to act that would be familiar to Whitey Bulger, John Gotti and Sammy “The Bull” Gravano each of whom have been accused of at least twenty murders. Mr. Boyd’s last assault occurred when he attacked a man outside city hall, while under the delusion that he was God.
What is left for Mr. Boyd? The District Attorney can’t force him into treatment, the mental health professionals say they can’t treat him and his attorney apparently doesn’t have a spare bedroom. The only people who put up with Mr. Boyd are the people that shouldn’t have anything to do with him, according to his attorney, the police.
The police receive a call that Mr. Boyd is camping where he shouldn’t be. The incident drags on for three hours. This tells me that the police had the ability and did dedicate sufficient resources to handle the situation. There was probably a negotiator or police officer trained to deal with mental health issues. They had a variety of less lethal options available, stun grenade, bean bag shotgun, taser, and police dog. They also had officers prepared to use deadly force.
The Special Prosecutor was being disingenuous in two statements that she made. She pointed out that Mr. Boyd was outnumbered and armed with two knives against all those guns. The comedian Ron White summed up the nature of such a confrontation best, “I didn’t know how many bouncers it was gonna take to kick my ass…. but I knew how many they intended to use.” She pointed out only eight officers had been killed with knives. I guess the implication being that knives weren’t nearly effective as firearms. By the same token she demonstrated that knives are deadly weapons. Let’s not forget Mr Boyd is crazy and during his last foray out to where the buses don’t run he thought he was God. Her second statement is that the officers charged were there specifically to use deadly force. She makes it sound like two guys just in from Chicago carrying violin cases. Yeah/No.
Police use of force doctrine says that police should meet force with force and escalate as appropriate. Mr. Boyd had two knives (deadly weapons, justifying deadly force). Because the police were prepared to escalate by designating two shooters they had the ability to intervene at a lower level. It is likely the officers engaged in this operation would have been in violation of department policy if they had not designated a deadly force cover element. The police negotiated for almost two hours, using the lowest level of force, presence, persuasion, and voluntary compliance. Mr. Boyd appears to agree, however the audio is unclear and the facts speak for themselves. I suspect that Mr. Boyd agreed to a conditional surrender with a stated condition that the police were unable or unwilling to accept. At this point Mr. Boyd still had the knives, to me he is not compliant. When the agreement fell apart the police escalated to stun munitions, which did not have the desired effect. The next step was to deploy the dog, deployment of the dog may have been predicated on the stun munition being effective. When that didn’t happen the handler did not release the dog and found himself vulnerable to attack. Perceiving that the K-9 handler was in danger the accused officers intervened as they had been assigned.
Is there probable cause and reason to believe that the officers acted unlawfully? The judge seemed to think so. This is a preliminary hearing and both sides probably held back a lot of information to be used during the case in chief. Could it have been proved beyond a reasonable doubt that Mr. Boyd committed a dozen assaults for which he was criminally liable? We will never know because a Deputy District Attorney made the decision that Mr. Boyd’s mental state was an obstacle to a conviction, without giving the judge a chance. Had one Deputy District Attorney pursued any one of Mr. Boyd’s cases with the vigor of the Special Prosecutor, Mr. Boyd might be alive today. Can the Special Prosecutor prove beyond a reasonable doubt that the officers committed the offenses charged and have the case upheld on appeal? Probably not.