A defense attorney in the murder case against Albuquerque police officers who shot and killed James Boyd last year is seizing on new evidence in his defense of SWAT officer Dominique Perez and former detective Keith Sandy. He is arguing that a third officer first attempted to use less lethal means, but that the Taser didn’t work as intended because it was discontinued and expired.
As seen in a widely circulated video, two officers approached Boyd, a 38-year-old homeless man, for illegally camping in Albuquerque’s foothills. In the video, Boyd picks up his belongings when officers shoot a flash-bang device in his direction and send a K9 dog to bite him. Boyd pulls out one or two knives, and begins to turn away, before he is shot with several rounds of bullets. The officers later said that they also fired non-lethal weapons, such bean bag rounds.
The Albuquerque Police Department, which has since been found to have used unconstitutional force in numerous officer-involved shootings, initially said that the shooting of Boyd was justified. But Perez and Sandy were charged with murder earlier this year. Now, attorney Luis Robles will argue that officers at the scene did not commit murder, because they tried to use non-lethal force before fatally shooting Boyd.
According to police testimony, Sandy and another officer, Rick Ingram, were both equipped with X12 shotguns, which were discontinued two years before the incident, as well as XREP rounds, which expired two months before. Whether or not the weapons malfunctioned is unknown, but the canine handler believes Ingram accidentally fired his Taser at the dog, which is why it didn’t bite Boyd as intended.
Robles contends that the use out-of-date weapons still proves that police at the scene did not resort to lethal force before trying out alternatives.
“Would the availability of another, more effective, less-lethal tool have changed the outcome? Perhaps. It probably would have turned out differently if SWAT had set up an inner perimeter and brought all of its tools to bear,” he said. “Many law enforcement officers have chosen not to go with that particular tool, because it lacked reliability. It is my understanding that APD was (at the time of the Boyd shooting) phasing them out, too, as the ammunition was used up. And then they would just disappear.”
Indeed, police often have non-lethal tools at their disposal. For instance, Tasers and bean bags, which were both deployed in the encounter with Boyd, were specifically designed to avoid the use of deadly force. But regardless of whether or not these less deadly tools work, officers are subject to the same legal standard for assessing whether a homicide was justified — typically whether the officer feared for their own life or that of others. That standard does not permit officers to turn to a gun just because they don’t have another useful tool at their disposal.
“If you should be using nonlethal force and your nonlethal weapon doesn’t work as is appropriate, then why are you turning to a lethal force weapon when nonlethal is appropriate?” a former Department of Labor agent previously told ThinkProgress. “Just because your nonlethal doesn’t work, doesn’t hike the use of force continuum to lethal, so that makes no sense.”