Copyright © 2016 Albuquerque Journal
Eleven months ago, police say a homeowner awoke to a strange noise, grabbed his gun and went to his kitchen, where he found a man crouching, clutching a knife. The homeowner opened fire, killing the suspected burglar. Detectives said the homeowner’s actions were justifiable and didn’t arrest him.
Throughout 2015, similar scenarios played out over and over again across the city as civilians shot would-be burglars. Six of the eight justifiable homicides occurred during attempted burglaries or robberies – more than in the previous four years combined.
In one case, a suspected burglar was breaking through a screen door when he was shot, and, in another, at least two men allegedly forced their way into a house and shot a resident before one of the intruders was killed.
And, in June, a high-profile case caught national press when two ex-CNN staffers were involved in a gunfight at a hotel on Albuquerque’s West Side.
Police say Chuck de Caro shot and killed a man who had forced his way into de Caro’s room and attempted to rob him and his wife, Lynne Russell, at gunpoint. De Caro was shot three times and suffered serious injuries.
Roger Finzel is a retired criminal justice attorney and concealed carry instructor in Albuquerque. When talking with gun owners, he said, he has noticed that people have become more fearful of crime and more willing to arm themselves for protection.
“I wish society were safer, but it’s not,” Finzel said. “People are trying to use good, sound judgment. They’re not out there committing crimes, they’re not out brandishing guns, they’re just trying to avoid becoming victims.”
Of the 18 homicides determined to be justified since 2010, 16 involved guns. The other two involved knives.
Roughly half of New Mexicans have a gun in the home compared with 29 percent of people nationwide, according to a 2013 survey by public health researchers from Columbia University and Boston University, and a legislative analysis last year found an estimated 61,000 people have a license to carry concealed handguns in the state.
This interest in gun ownership has increased over the past five years, as FBI statistics show that more and more New Mexicans are undergoing federal background checks to determine if they are eligible to buy guns.
Violent crime up
The increase in homicides by citizens that police determined were justified began two years ago.
In 2014, police ruled that five – or a little more than 14 percent – of homicide cases were justified, most of them committed during a burglary. In contrast, police determined that one homicide was justified in 2010, none in 2011 and three in 2013. Albuquerque police found eight homicides to be justified last year, making up nearly 15 percent of all homicide cases. Six were during break-ins and two involved fights.
A spokesman for the Bernalillo County Sheriff’s Office was unable to provide the number of homicides deputies determined were justified.
Finzel said he believes the trend is reflective of Albuquerque’s crime rate. “We have an increase in violent crime, and people are now taking steps to defend themselves,” he said.
Violent crime, including murder, rape, aggravated assault and armed robbery, rose 15 percent in Albuquerque between 2010 and 2014, according to the FBI Uniform Crime Report, while the population increased 2.5 percent. The statistics for 2015 aren’t available yet.
Homicides have fluctuated over the past five years, with a sharp uptick last year. Two high-profile cases ended with homeowners being killed by suspected burglars as they tried to defend their property.
In June, Steven Gerecke was shot in his driveway after police said he confronted six teenagers who had broken into his Foothills home. And the day after Christmas, William McKinley was stabbed to death while fighting with a man allegedly breaking into his truck in Albuquerque’s Four Hills neighborhood.
Homicides determined to be justified sparked national debate following the 2012 fatal shooting of 17-year-old Trayvon Martin in Florida. Martin was unarmed and walking near his home when he was shot and killed by George Zimmerman, who claimed to have acted in self-defense. Zimmerman was acquitted in the shooting death.
The shooting highlighted Florida’s controversial Stand Your Ground Law, which allows people to use deadly force with no obligation to retreat if they have a reasonable fear that their life is being threatened.
New Mexico has no such law, but citizens are not required to retreat rather than defend themselves.
New Mexico statute says that a homicide is justifiable when committed in defense of one’s life, family or property, or when there is a reasonable belief that someone is going to commit a felony or greatly injure another person. A third provision states that a homicide is justifiable when committed to suppress a riot or keep the peace.
However, it’s not always clear in practice.
Sgt. Liz Thomson of APD’s homicide unit says it’s difficult to pinpoint exactly where the line between justifiable and unjustifiable lies. “The law isn’t a list of criteria of when you can and can’t shoot someone,” Thomson said in an email. “The citizens of New Mexico have a right to defend themselves, their family and their property, and the law gives some direction as to when a homicide is justifiable in that defense.”
Officer Tanner Tixier, an APD spokesman, said that, while people are allowed to protect their property, they can’t go out and shoot someone just because they’re breaking into their vehicle. He said detectives consider a homicide justifiable if a person is in fear for his or her life.
Finzel, a former attorney, agreed. “You can only exercise your right of self-defense – which is a basic human right – if there was an appearance of immediate death, danger or great bodily harm,” Finzel said.
A couple of cases in which a property owner shot and injured suspected burglars last year didn’t meet this criteria.
In mid-September, Jorge Mateo-Segura was charged with aggravated battery with great bodily harm and aggravated assault after police say he shot a suspected burglar who was running away from him. The suspected burglar, Joe Gutierrez, survived.
One day later, a similar incident occurred across town.
Police say Pete Chavez fired on a man he believed was trying to steal his truck outside of La Quinta Inn. The man, Majestic Howard, was struck in the head, but survived. Chavez was charged with aggravated battery with a deadly weapon and felon in possession of a firearm.
After considering the forensic evidence, Thomson said detectives determined Chavez did not shoot Howard in self-defense.
Role of the DA
After detectives make a determination on a homicide, they submit the case file to the District Attorney’s Office for review. The DA’s office makes the decision on whether a homicide should be considered justifiable or whether it should be prosecuted.
But, since 2010, APD has sent only four of the 18 cases it has ruled justifiable to the DA’s office for review, according to spokeswoman Kayla Anderson.
One case is still open, and there was no probable cause to press charges in a second, she said. In the remaining two cases, APD submitted a case file for alleged accomplices of the men who were killed, but not for the shooters, Anderson said.
In response to questions about why APD had not submitted all of the cases, some dating to 2013, Thomson said these cases are lower priority as detectives focus on other homicides.
“The cases that have not been submitted to the DA’s office have not been completed yet and are a lower priority because they did not involve an arrest (either because the offender was killed or there were no co-offenders) or the case has not been required for prosecution,” she said.
Thomson said detectives still plan to turn over the remaining 14 cases to the DA.
Criminal defense attorney Ahmad Assed said he finds it surprising that cases aren’t turned over as soon as APD makes a determination. He said that, in order for the DA to determine whether to press charges, the case should be as fresh as possible.
“In order to bring justice to the families of the decedents – and to do justice to a defendant’s right to go after evidence that is fresh – there shouldn’t be more than a few months’ delay in getting the file to the DA’s office,” Assed said.
Even when detectives determine there are no grounds for an arrest, interviews in police reports show the act of fatally shooting someone can be traumatizing.
Many people call the police on themselves and cry or discuss feeling paranoid about retaliation as they are interviewed by detectives in the wake of a homicide. Finzel said that, when he is instructing gun owners, he stresses firearm safety above all else to minimize accidents and other shootings people might come to regret.
“You never point a gun at anything you do not wish to destroy,” Finzel said. “Most people, unless they’re psychopathic killers, do not want to harm anyone.”