Declaring that “I have a job to do and I’m doing it,” District Attorney Kari Brandenburg said her office was filing murder charges against two Albuquerque police officers in the shooting of a mentally ill homeless camper in the Sandia foothills last spring in a case captured on a police video that shocked the nation.
The charges filed Monday against officer Dominique Perez and recently retired Detective Keith Sandy appear to be the first against an APD officer for an on-duty fatal shooting in at least 50 years. Both men are charged with an open count of murder for the March 2014 shooting death of James Boyd following a four-hour standoff.
Brandenburg said Perez and Sandy would not be booked into jail until after a preliminary hearing is held to determine if there is enough evidence for either of them to stand trial on any of three charges – first-degree murder, second-degree murder or voluntary manslaughter.
“We have enough evidence of probable cause,” Brandenburg told reporters. “We can meet that standard in this case.”
Sandy’s attorney, Sam Bregman, said that charging the officers was a “terrible, terrible decision.”
“There is not one shred of evidence to support any … criminal intent on the part of Keith Sandy,” Bregman said.
Luis Robles, who represents Perez, did not respond to Journal telephone messages left with his receptionist.
Brandenburg said that neither the high-profile nature of the Boyd shooting with widespread airing of the video, nor recent cases around the country where police were not charged by grand juries, entered into her decision to file the charges and proceed with a preliminary hearing.
Perez has been on administrative assignment since the shooting. Sandy was allowed to retire from the department eight months after the shooting.
Brandenburg said the preliminary hearing will allow all of the evidence to come out in public. She declined to discuss the specific facts that led her office to conclude it had enough evidence to proceed.
District Judge Alisa Hadfield has been assigned the case. No hearing has been scheduled.
At the conclusion of the preliminary hearing, a judge will have to decide whether to bind either man over for trial and on what charge.
Typically, preliminary hearings are held within 60 days of the charges being filed, but Brandenburg’s office said defense attorneys have agreed to waive any time limits on scheduling the hearing.
Brandenburg said her office had used the preliminary hearing route before to charge police officers in other matters, but not in any shooting cases.
Bregman said that in one sense he welcomed the preliminary hearing process.
“I’m not so upset with her for doing this process because it is transparent and I want the public to understand what happened here,” he said.
“I personally don’t find fault with the idea of going to a prelim instead of a grand jury proceeding. I do find fault with even bringing criminal information to begin with.”
Boyd, 36, had been camping in a restricted area of open space in Albuquerque’s foothills when he was told to leave by Open Space officers. Boyd, who had a history of mental illness and run-ins with police, refused and brandished at least one of the two small knives he carried during the standoff with police.
More officers were called to the scene, with more than 20 present at one point.
Officer Perez’s helmet-mounted camera captured the final moments of the standoff, when Boyd appeared to be complying with commands to leave. As he bent down to gather his belongings, an officer throws a flash-bang grenade at his feet. Another officer sends a police dog at Boyd, who pulls the knives out of his pockets again.
As he appears to turn away from the officers, Sandy and Perez fire three rounds apiece from assault-style rifles, striking Boyd in the back. Officers continue to yell at him to drop the knives.
“Please don’t hurt me anymore. I can’t move,” Boyd says as he lies on the ground.
Officers fire bean-bag rounds at him as he’s on the ground, then let loose a police dog, which grabs his leg and shakes it. He doesn’t move. Officers then approach and cuff him.
Boyd, who suffered from paranoid schizophrenia, died the next day at the hospital.
Bregman, at a news conference Monday, said Sandy shot Boyd because the officer handling the dog didn’t have his weapon drawn and was just 8 feet from Boyd.
At the time, newly appointed Police Chief Gorden Eden told reporters that based on his preliminary review the shooting appeared to be justified.
The incident occurred shortly before the U.S. Department of Justice released findings that APD had a pattern or practice of using excessive and fatal force in APD shootings investigated prior to Boyd’s death.
Mayor Richard Berry, who later said the chief spoke too quickly and called the Boyd shooting a “game changer,” asked the FBI to investigate. That is a separate investigation and is ongoing, although information has been shared with investigators from APD, Bernalillo County Sheriff’s Office and State Police.
On Monday, Elizabeth M. Martinez, assistant U.S. Attorney, released a statement: “The Justice Department will be closely monitoring the local prosecution arising out of the officer involved shooting of James Boyd. The federal investigation into this matter remains open.”
Berry also issued a statement Monday.
“We trust the judicial system will provide the family, our community and the officer a fair, transparent and unbiased opportunity to explore and present the facts as they relate to this tragic event,” he said. “It is important for all of us to allow the process to progress without prejudice in order for our community to move forward.”
Last fall, APD released dashboard camera footage taken before the shooting in which Sandy is heard talking to New Mexico State Police Sgt. Chris Ware about Boyd, calling him a “f***ing lunatic.”
Bregman acknowledged that Sandy talked about using force against Boyd just as the officer arrived on scene. In a recording, Sandy appears to tell the State Police officer that he planned to shoot Boyd with a less-lethal shotgun that fires a Taser.
“He said he was going to shoot with a Taser shotgun. Now does a Taser shotgun sound like lethal force? No,” Bregman said in a news conference he scheduled for the same time as Brandenburg’s.
“They were called out there, Keith particularly, because that unit had Taser shotguns. That’s what was said on that (the tape recording). You don’t shoot someone with a Taser shotgun because you are premeditating killing them.”
All shootings by APD officers are reviewed by Brandenburg’s office. No officer has faced criminal charges as a result of those reviews, but one officer involved in a shooting during that time was fired as a result of APD’s investigation.
Albuquerque police are implementing a series of reforms negotiated between the U.S. Department of Justice and the city after the DOJ issued a report concluding Albuquerque police had a pattern of using excessive force, which included police shootings. The Boyd shooting was not one of those reviewed.
Brandenburg said that for 30 years “investigative grand juries” supervised by her office and her predecessors reviewed all police shootings in Bernalillo County.
In spring 2012, Brandenburg and District Court judges agreed that she would temporarily stop using the “investigative grand juries” after Journal stories made the inner workings of those proceedings public.
In January 2013, Brandenburg announced her intention to resume using the special grand juries to review police shootings, but state District Court judges put a halt to that.
Attorneys for victims’ families have called the investigative grand jury process a “sham” in court filings.
In halting the “investigative grand juries,” the judges told Brandenburg “that the appearance of a lack of impartiality is impossible to avoid, especially given that the procedure is used only for police officers and specifically limited to officer-involved shootings.”
Journal stories about the internal workings of the grand juries showed that grand jurors were provided instructions on different versions of justified shootings, but no criminal statutes; prosecutors met with officers to review testimony; and prosecutors asked officers leading questions.
Brandenburg has been the subject of an APD investigation in which detectives recently found probable cause to charge her under state law that prohibits bribery or intimidation of a witness in connection with a burglary investigation of her son. APD has sent that case to the state Attorney General’s Office for review.
In response to a question at her news conference, Brandenburg said that investigation had nothing to do with her decision to charge the officers. She said her office had made a “preliminary” decision to file charges against Perez and Sandy before she learned of the APD probe.