The setting sun, the rocky slope of the hill, James Boyd’s mental illness and his history of battery against officers and the knives in his pocket were all factors police were considering before Boyd was shot, a SWAT supervisor testified on Monday morning.
“The call presented a lot of problems,” Sgt. James Fox said on the witness stand Monday morning.
Fox was the first witness to testify on day six of the preliminary hearing against Albuquerque police officer Dominique Perez and former Detective Keith Sandy. The hearing is continuing after a week-long break last week because of scheduling conflict.
The officers are facing a second-degree murder charge and lesser offenses for fatally shooting Boyd in the Sandia foothills in March 2014. Boyd had been illegally camping and threatened two uniformed officers with knives, which prompted a large police response that included tactical officers who shot Boyd while trying to take him into custody after a three-hour long standoff.
Under cross examination, Fox said at least seven SWAT team members, two Repeat Offender Project team detectives and a police K-9 officer responded to the foothills when they heard about the incident over a police radio. Those officers added to the nine uniformed police officers who were trying to negotiate with Boyd.
Fox, the SWAT team sergeant, said the officers never created a complete tactical plan, but a group of tactical officers that included Perez and Sandy made an attempt to arrest Boyd before nightfall.
“The setting sun was a huge problem,” he said.
Fox said police were aware that Boyd was a paranoid schizophrenic and had a history of battery against a police officer, which added to the danger.
“When you actually have someone who is willing to attack … officers. That puts (the danger) at a very high level,” he said.
Fox said a a tactical team trying to arrest a subject will use various less lethal options. Officers using less-lethal weapons are backed up by one or more officers who will use deadly force against a subject if things unravel.
Defense attorneys have argued that’s what happened when Boyd was shot. Police initially threw a flash bang at Boyd, shot him with Taser shotgun and sent a police K-9 at him in an attempt to take Boyd into custody. But those tactics were ineffective and Sandy and Perez shot Boyd because a K-9 officer was too close to Boyd, who was armed with knives.
Pro Tem Judge Neil Candelaria, the judge presiding over the hearing, asked Fox if officers can use less lethal weapons multiple times before deciding to use deadly force. Fox said that would be a proper response, depending on the circumstances.
Randi McGinn, a special prosecutor appointed to try the case, pointed out during Fox’s cross examination that there were at least 19 officers, including 10 tactical officers, surrounding Boyd when he was shot.
McGinn has argued that Boyd was surrendering and wasn’t an immediate threat to officers when he was killed. Footage of the shooting showed that Boyd had gathered his belongings and was walking down the hill when police used less lethal weapons against him. McGinn said the video also shows that Boyd was turning from officers and preparing to surrender when he was fatally shot.
The preliminary hearing is expected to wrap up this week, after which Candelaria will decide if there is probable cause for the officers to face charges at trial.
By Russell Contreras / Associated Press
A judge could decide this week if a former and current Albuquerque officer should stand trial for the shooting death of a homeless man.
Testimony is scheduled to resume Monday in a preliminary hearing for Officer Dominique Perez and former Detective Keith Sandy. They are facing murder charges for the death of James Boyd.
The 38-year-old Boyd, who authorities later said suffered from schizophrenia, was shot during a standoff in March 2014 in the Sandia Mountains foothills. Video of the shooting showed Boyd appearing to surrender before Perez and Sandy opened fire.
Prosecutors say the two officers helped escalate the standoff and recklessly shot Boyd. He later died at a hospital after getting one of his arms amputated.
But attorneys for the officers say their clients did nothing wrong and were merely defending their fellow officers from a guy who had knives.
Pro Tem Judge Neil Candelaria may rule on Wednesday after hearing from last witnesses to determine if there is enough probable cause for the two men to face a jury. The preliminary hearing resumes after a week in recess and comes after other officers at the scene and a medical examiner have already testified.
The shooting came amid a wave of police shootings in the city and just before the U.S. Justice Department issued a harsh report involving use of excessive force by the Albuquerque Police Department.
Sandy and Perez are the first officers to face criminal charges in the 40 shootings by city police since 2010.
The Police Department and the Justice Department recently entered an agreement to overhaul the force.
Boyd’s death became a tipping point for police critics and a number of groups held demonstrations in response. Authorities were forced to fire tear gas at protesters at one demonstration.
Advocates warn that Albuquerque will see new protests if Candelaria decides the officers won’t face a jury.
“If these officers don’t stand trial, all bets are off,” said University of New Mexico professor David Correia, who led a sit-in at the Albuquerque mayor’s office. “There will be a lot of anger.”
Authorities are aware that advocates are planning possible demonstrations, police spokesman Tanner Tixier said. He urged people to respect the movement, safety and property.