Shooting by Chaves County sheriff's deputies raises questions - Albuquerque Journal

Shooting by Chaves County sheriff’s deputies raises questions

David Aguilera is in the back of a patrol car being arrested by Chaves County sheriff’s deputies. He managed to escape and get into the driver’s seat before the deputies shot him. Aguilera’s family has filed a wrongful death suit. (Courtesy Chaves County Sheriff’s Office)

Copyright © 2022 Albuquerque Journal

David Aguilera had managed to escape from the back seat of a patrol car and get into the driver’s seat as Chaves County Sheriff’s deputies were arresting him at a dairy a couple of blocks from his home in late March.

Lapel camera video shows that as the car began to roll forward and 34-year-old Aguilera flailed his arms a deputy opened fire striking him several times. Another deputy on scene also shot Aguilera, although it is not seen on the video.

Aguilera died at the scene.

Now his family, their lawyer and a policing expert are raising questions about the circumstances around the shooting.

“It’s difficult to say why lethal force would be used for what would amount to a theft of a department vehicle,” said Keith Taylor, an adjunct assistant professor at John Jay College of Criminal Justice. “That’s that visceral reaction that most people would have when looking at (the video). What is the justification of lethal force when stealing a car and refusing to be arrested? Was there some other option?”

However, Taylor cautioned that the video is just one view of the shooting. The former New York Police Department sergeant who worked in emergency services and internal affairs reviewed the video of the shooting, which the Journal obtained in response to a public records act request.

“It is not the investigation,” Taylor said. “There are additional facts and circumstances that may inform the individuals who have to determine whether that was appropriate or not.”

Investigation under review

In a video posted on Facebook hours after the incident, Chaves County Sheriff Mike Herrington said the deputies went to the dairy on Jackson Road near the Eddy County line in response to calls about a disorderly subject. Aguilera was reportedly jumping on the equipment and running around.

Herrington said a Taser was used multiple times and “an officer involved shooting had occurred.”

The sheriff’s office referred the Journal to the county attorney for more information.

Attorney Stanton Riggs said deputies Benjamin Conklin and Joshua McKelvey believed their lives were at risk or they were at risk of substantial harm and that’s why they fired at Aguilera after he got into the driver’s seat.

The Roswell Police Department led an investigation into the shooting. A spokesman said the investigation is complete but it is awaiting a couple of lab results that will be added to the final report when they are received.

The investigation has been turned over to the 5th Judicial District Attorney’s Office, where it is still being reviewed.

Deputy Conklin had been with the Chaves County Sheriff’s Office for a little over two years and deputy McKelvey had been there for a little under two years.

Riggs said both deputies are back on patrol after being put on the standard administrative leave. He said the department has not opened an internal investigation and is waiting to see what District Attorney Dianna Luce determines before deciding if it has to investigate further or take disciplinary action.

‘It’s hard, really hard’

Camille Ortega met Aguilera through mutual friends when she was about 13 and then the two got together years later in 2011 when she was about 21.

David Aguilera (Courtesy of Camille Ortega)

Aguilera worked in the oil fields doing several different jobs over the years. He grew close to Ortega’s four children and then the couple had two of their own, the youngest of whom is 5. They lived outside of Lake Arthur, south of Roswell.

On the evening of March 27, Ortega returned home after taking their children to a doctor’s appointment in Las Cruces. They talked a little and then Aguilera left the house.

“He enjoys walking,” Ortega said. “Usually when he takes off, he comes back right away. But that night, I don’t know. It was just different.”

A couple of hours later, deputies were called to the nearby Sideline Dairy.

Video and statements from investigators show the deputies used their Tasers at least five times on Aguilera to try to subdue him. He is agitated and uncooperative but repeatedly apologizes to the deputies.

Eventually they were able to get him into the backseat of Conklin’s patrol car.

Then, at some point deputies Conklin and McKelvey returned to the patrol car and opened the back doors. McKelvey’s lapel camera video shows Aguilera escape from the back and run around the lot away from the deputies before he returns and gets in the driver’s seat. He appears to be agitated and upset and continues to apologize.

“Get out of the (expletive) car” and “I will (expletive) shoot you,” deputy McKelvey yelled over and over before instructing deputy Conklin to move as the car appears to be rolling forward.

That’s when first McKelvey and then Conklin began firing at Aguilera, striking him.

The deputies tried to revive Aguilera, but he died at the scene.

When investigators arrived they found the car had rolled about 40 yards west of where Aguilera was lying on the ground, according to incident reports released to the Journal.

Next to him on the ground was five spent bullet shell casings and the Pokémon wallet his son had lent him after he lost his own.

Remembering Aguilera, Ortega starts to cry. She said the couple did everything with their children and she recounts how funny Aguilera was and how he used to take them fishing and taught the oldest how to drive.

Now she’s doing everything by herself and had to switch jobs to support the family.

“It’s hard, really hard,” Ortega said. “I cry all the time. I’m upset wishing he was here to help me … I keep expecting him to walk through the doors.”

Not the first suit

Aguilera’s family has been calling for justice on social media. Ortega has started the process of a wrongful death suit.

Shane Maier, Ortega’s attorney, said his office is still investigating but he questions why the deputies didn’t take another course of action.

“The car was moving forward, but there was no one in front of him,” Maier said. “He was not a dangerous threat to anybody else. He was also confined within a field. … Ultimately, if it needed to come down to it, they could also just follow him. He wasn’t going anywhere.”

Ortega’s suit will be the second one filed in connection with a shooting by Chaves County Sheriff’s deputies in less than a year.

In April, the American Civil Liberties Union of New Mexico and the Ives and Flores law firm filed a suit on behalf of the family of 25-year-old Oscar Najera. Najera, who suffered from a mental health disability and a traumatic brain injury, was unarmed when he was shot several times in June 2021.

The suit alleges that Chaves County and Sheriff Herrington “enthusiastically hires known ‘problem cops’ from other departments” and allows deputies to lapse in their firearm qualifications.

Chaves County and the sheriff did not comment on that lawsuit and have not filed any responses in the case.

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