IA finds misconduct in June police shooting - Albuquerque Journal

IA finds misconduct in June police shooting

Max Mitnik, 26, talks with Albuquerque Police Department officers who were called by his family to take him to the hospital because of a mental health issue. Behind him are his parents Wanda and Michael Mitnik. (Source: APD)

Copyright © 2021 Albuquerque Journal

An Internal Affairs investigation found that officer Jose Ruiz used force appropriately when he shot and critically injured a 26-year-old man in the midst of a mental health crisis last summer.

But it also found his actions that day escalated the situation.

“Force only became necessary because it was predicated on the lack of command and control of the scene,” an IA commander wrote in a report.

Max Mitnik (Courtesy of APD)

Max Mitnik had locked himself in the bathroom of his parents’ home and then emerged, holding a paring knife, and telling Ruiz to kill him. Ruiz, backing up into a bedroom, fired twice, striking Mitnik in the head.

Max’s mother, Wanda Mitnik, said that he is still recovering and that although he is making progress, he is paralyzed on his left side.

“He will never be the same, and he’s so young,” Wanda Mitnik said in a statement. “My son is paying the price for the officer’s overreaction to the situation.”

A special prosecutor with the 2nd Judicial District Attorney’s Office reviewed the case and determined there is not probable cause to charge Ruiz in the shooting. Mitnik also was not charged.

But misconduct investigation documents released to the Journal in response to an Inspection of Public Records Act request state that Ruiz escalated the situation when he allowed Mitnik’s mother to open the door to the bathroom.

“Although Officer Ruiz had to make a quick decision, training guidelines and best practices suggest not making contact with Max in this specific incident under the circumstances,” the report says.

Ruiz received an eight-hour suspension.

The investigators also found that Ruiz and his fellow officer, Ashalyn Eylicio, failed to gather as much information as possible and did not ask about threats Mitnik had made and whether he was a serious danger to himself or others.

Both officers received a letter of reprimand for that violation of standard operating procedure and were told to attend additional training. They are both still with the Albuquerque Police Department field services, according to their attorney.

Gilbert Gallegos, an APD spokesman, did not answer questions about whether the officers have already gone through training or if other officers have been disciplined in regards to police shootings in recent years. However, he did issue a statement.

“The purpose of these administrative investigations, in addition to identifying policy violations, is to determine whether there are areas where the department can improve …,” Gallegos wrote. “City officials from several departments have been meeting to discuss the creation of the new Community Safety Department (ACS). Part of that discussion is whether a call like this should be handled by ACS alone, through a co-response with ACS, and/or with the assistance of Mobile Crisis Team clinicians.”

Deadly force use

John D’Amato, a union attorney who represented the officers, said he wholly disagreed with the finding that Ruiz and Eylicio didn’t gather enough information from Mitnik and his parents.

“They spent an inordinate amount of time,” D’Amato said. “They were exercising (Crisis Intervention Team) skills, they were communicating with the parents. The parents did not verbalize at any time that they deemed their son a threat, an immediate threat, to them.”

He said it’s easy to “Monday morning quarterback” these situations but they typically unfold very quickly.

“The officers were put in a very, very difficult situation,” D’Amato said.

However, Ryan Villa, an attorney representing the Mitniks, said he agreed with the two findings of fault but wished APD had further examined whether Ruiz should have used deadly force at all. The Internal Affairs investigation found “the force was necessary to protect Ofc. Ruiz from injury due to the fact that Max was approaching and threatening Ofc. Ruiz with a knife and Ofc. Ruiz had limited time to react.”

“(APD’s determination) was sort of in a vacuum – anytime anyone has a knife and walks toward you it’s OK to use deadly force, that’s not what the 10th circuit says …,” Villa said, referencing a 2019 ruling out of the 10th Circuit Court of Appeals that found an officer in Colorado who shot and killed a man in the midst of a crisis acted unconstitutionally by not de-escalating the situation. “That’s what I would have liked to have seen when they’re talking about is the use of deadly force appropriate, put it in the mental health context.”

The right questions

The incident began the afternoon of June 4, 2020, when Mitnik’s parents, Michael and Wanda, called 911 to report that their son – who had been diagnosed with schizophrenia, hadn’t been taking his medication and hadn’t been sleeping – wanted to be taken to the hospital and was telling his parents “I am afraid I am going to hurt you.”

Officers Ruiz and Eylicio responded to the Mitnik home on the 9800 block of Greenbrier NE in the Tanoan gated community shortly after 2 p.m.

The family met them in the front yard. On his body camera, Ruiz can be heard telling Max Mitnik that there could be a long wait at the University of New Mexico Hospital.

Mitnik agreed to let the officers take him to the hospital but was then told he had to be handcuffed if he was going to ride in a police car. This caused Mitnik to balk and he wavered back and forth about whether it was better to be handcuffed or to go to the hospital with his parents. Because Mitnik is an adult and was not suspected of a crime or apparently presenting a direct threat to himself or others the officers said they could not take him into custody or to the hospital against his will.

But the Internal Affairs investigators took issue with the fact that the officers did not do anything to determine whether Mitnik was a threat and did not follow up on statements Michael Mitnik made about his son threatening violence.

“After conducting an interview with Officer Ruiz he explained that he did not get any specific information from Max or his family members that would cause him to force Max to the hospital,” the investigator wrote in a report. ” However Officer Ruiz also never asked specific questions to either Max or his parents as to whether Max presented a serious threat of harming himself or others and did not respond to the verbal cues mentioned above by the father.”

Officer Eylicio later told investigators that she was not able to conduct a proper investigation since Mitnik wasn’t saying much and the parents were intervening throughout the incident. She also said she never asked specific questions about whether Max presented a serious threat of harming himself or others.

Situation escalated

At some point, Mitnik ran inside the house, apparently grabbed a kitchen knife, and locked himself in the bathroom.

His parents ushered Ruiz into the home as Eylicio called for backup from the mobile crisis team – a unit made up of a behavioral health clinician and an officer who responds to mental health calls.

Video shows Wanda Mitnik trying to unlock the bathroom door from the outside as Ruiz tells her to stop and let Max open it. She makes a stabbing motion toward her neck and says Max “has a knife in his hand and he’s jabbing at his neck.”

“OK,” Ruiz responded, and Wanda unlocked the door.

That’s when Max emerged, a knife in his hand at his side, bleeding from the neck and saying matter-of-factly, “I’m going to suffer a lot if I don’t kill myself, will you please kill me, sir. Kill me.”

Ruiz – backing away from him and into a bedroom – fired twice, striking Max in the head.

The Internal Affairs investigator determined Ruiz should not have allowed Wanda to open the door and doing so allowed the situation to escalate.

“Although Officer Ruiz had to make a quick decision, training guidelines and best practices suggest not making contact with Max in this specific incident under the circumstances,” the report says.

Villa said he is still working with the Mitniks as they try to decide whether to file a lawsuit.

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