ALBUQUERQUE, N.M. — For the first time in at least 50 years, an Albuquerque police officer will face murder charges for an on-duty shooting.
SWAT team member Dominique Perez and retired detective Keith Sandy were bound over for trial on second-degree murder charges Tuesday by pro tem Judge Neil Candelaria, who found there was probable cause for the charges in the shooting of mentally ill camper James Boyd.
Perez and Sandy will be arraigned, booked into jail and then go before a judge who will set bond and other conditions of release pending trial.
A second-degree murder conviction carries a sentence of 15 years in prison. A jury also could acquit the two officers or find them guilty of a lesser charge such as manslaughter.
Candelaria reached the decision after a seven-day preliminary hearing.
“I respect Judge Candelaria. But in the 24 years I’ve practiced law, I’ve never disagreed more with a decision,” defense attorney Sam Bregman said in an interview. “It has turned law enforcement in this city upside down on its head and has a chilling effect on police officers throughout this city.”
Special prosecutor Randi McGinn argued that Boyd, who was armed with two knives and had been in a three-hour standoff with police, was surrendering when shot in the back in March 2014 in the Sandia foothills.
“No one should be above the law and no one should be beneath its protection,” McGinn said in an interview. “The police officers will now have the same rights of every accused citizen.”
Candelaria’s ruling reverberated among the ranks at APD, which is understaffed and operating under a consent agreement with the U.S. Department of Justice after federal investigators concluded it had a culture of excessive force.
Police union officials worried about second-guessing of police on the street.
“There are officers right now, this very minute, possibly being dispatched to very similar calls (to the Boyd call),” said Shaun Willoughby, vice president of the Albuquerque Police Officers Association. “Every time an officer gets dispatched to do their job on behalf of the citizens of this community, in the back of their mind they are thinking, ‘I could be charged with murder for just doing my job,’ and it’s terrifying.”
Bregman and lawyers for Perez argued that their clients fired almost simultaneously from different positions because they thought the life of a K-9 officer approaching Boyd was in danger.
“I know that Keith tonight, while extremely disappointed, takes comfort in the fact that when he goes to sleep tonight there’s a fellow police officer that is still alive because of his actions,” Bregman said of his client in an interview.
Prosecutors now will file charges against Perez, a Marine who served in Iraq, and Sandy, a former State Police officer with 19 years in law enforcement, and within 10 days they will be arraigned on second-degree murder charges with a firearm enhancement and lesser included offenses.
They will be the first Albuquerque officers charged for an on-duty death since 1977, when James Babich was charged and eventually acquitted of an involuntary manslaughter charge for striking and killing a man with a large flashlight. They are the first officers charged for an on-duty shooting in at least 50 years.
McGinn, in her closing argument, said the officers didn’t act in self-defense because they created the danger that led to shooting Boyd, a 38-year-old homeless man who suffered from paranoid schizophrenia. She said the police’s response to Boyd that day was excessive and unreasonable.
David Roman, one of Perez’s attorneys, said police officers are given more leeway in using deadly force than average citizens, and a reasonable officer would have acted as Perez did. Bregman said Sandy was following his training and saved another officer’s life by shooting Boyd.
Perez and Sandy shot Boyd after a failed arrest attempt on a steep slope east of Tramway, where he had been camping illegally and pulled knives on two responding officers who drew their weapons on him.
After a three-hour standoff with police, a group of tactical officers created a plan to tell Boyd to gather his belongings and start walking downhill. Then the officers would use a flash bang, a Taser shotgun and a police K-9 to take Boyd into custody.
Those nonlethal tactics were ineffective, and Perez and Sandy opened fire when officer Scott Weimerskirch, a police K-9 handler, got within 10 feet of Boyd, who was armed with two knives.
“If Weimerskirch made a mistake, he made a mistake,” Bregman said during his closing. “What is it that (Sandy and Perez) were supposed to do? Sit there and watch him die?”
Weimerskirch, in court on Monday, said Perez and Sandy saved his life.
Mental health response
The Boyd shooting called into question Albuquerque police response to people who are mentally ill or in crisis. McGinn made reference in her closing argument to John Hyde, a mentally ill man who 10 years ago Tuesday shot and killed two Albuquerque police officers.
Since then, she said, Albuquerque police officers have become too aggressive in their response to people with a mental illness.
“The pendulum has swung too far,” she said. “As a result of what happened with John Hyde, the population that’s suffered the most is the mentally ill.”
The Department of Justice report, published less than a month after Boyd was shot, found that a significant number of the use-of-force cases the DOJ reviewed involved people with a mental illness or in crisis.
The Police Department currently is putting in place a series of court-enforceable reforms as a result of the DOJ’s investigation.
“As this case is moving though our judicial system, my focus is on continually moving the Albuquerque Police Department forward,” Police Chief Gorden Eden said in a statement. “We will protect our community, and I greatly appreciate the hard work and sacrifice of those who wear a uniform each and every day. As a witness in this case, it would be improper for me to comment about specifics.”
The city of Albuquerque already has agreed to pay Boyd’s estate $5 million to settle a wrongful death lawsuit.
Willoughby said a lack of resources for people with a mental illness means police officers frequently encounter people with mental illness while on duty. Some of them are armed, he said, and only a fraction of those encounters lead to a use-of-force case.
“It’s really, really easy to put all of society’s problems on the Police Department,” Willoughby said. “There’s not a lot of services for the mentally ill. And there’s a lot of weapons out there.”
While Sandy has retired from the Police Department, Perez is still working on administrative assignment. Willoughby said because of city policies, Perez will lose his job after he is formally charged.
Luis Robles, Perez’s attorney, couldn’t be reached for comment Tuesday.
McGinn said she has struggled with the fact that both Sandy and Perez are facing the same charges even though their actions that day were different. She said Perez was called to the scene of the Boyd standoff by a supervisor and assigned to cover the officers who developed the plan to arrest Boyd.
She said Sandy was never called to the scene but decided to go himself. She said he helped develop the arrest plan and volunteered to provide lethal cover in case the plan didn’t work.
He was recorded on a digital recorder calling Boyd a “lunatic” and talking about using force against the mentally ill man moments after Sandy arrived on scene.
“He rushed toward this because he wanted some action,” she said.
After Candelaria announced his ruling in court, Bregman asked the judge to explain what legal standard he considered when deciding to bind the case over for trial.
“The standard that you argued for, counsel,” Candelaria replied, adding, “What would a reasonable police officer in that position have done?”