Deputy charged with murder in fatal shooting of Mescalero teen seeks dismissal

An Otero County Sheriff’s deputy charged in the fatal shooting of a boy outside Mescalero in June waived his first appearance Monday in District Court in Alamogordo and is seeking dismissal of the case.

Jacob Diaz-Austin, 28, of Las Cruces filed a motion Monday seeking dismissal of the first-degree murder charge on grounds that prosecutors filed a criminal complaint that failed to list witnesses to the shooting.

Bernalillo County District Attorney Sam Bregman earlier this month charged Diaz-Austin in the June 25 death of 17-year-old Elijah Hadley in a highway median near Mescalero. Austin-Diaz was placed on paid administrative leave.

Austin-Diaz will remain employed by the agency unless he is convicted, said Otero County Sheriff David Black in a phone interview with the Journal Monday. Until then, his employment will not change, Black said.

Hadley was holding an air-powered pellet gun when Diaz-Austin arrived at the scene and fired multiple gunshots, fatally injuring the teenager, according to a June 27 New Mexico State Police news release.

Hadley, a Mescalero Apache Tribe member, was holding “what appeared to be a firearm” when the deputy fired, the news release said. “Agents later learned the object that Hadley presented at the deputy was an airsoft gun,” or replica pellet gun.

A CBS News report aired in November estimated that at least 320 people in the U.S. have been shot and killed by police while holding replica air and pellet guns, which often resemble real firearms. Some 12 million such guns were purchased in the U.S. in 2023, CBS reported.

Prosecutors in the 12th Judicial District handed off the case to Bregman’s office to avoid a conflict of interest, 2nd Judicial District Attorney spokeswoman Nancy Laflin said this month.

Diaz-Austin waived his right to a first appearance Monday in 12th Judicial District Court before Judge John P. Sugg, court records show.

His attorney, Charles McElhinney, filed a motion Monday seeking dismissal arguing that prosecutors filed a criminal information “completely devoid of identification of any witnesses” as required by state law.

McElhinney did not immediately respond Monday to a request for comment.

Austin-Diaz responded at 10:45 p.m. June 25 to a call for a welfare check about a teenager walking in the median of U.S. Hwy. 70 west of Mescalero.

Video captured by a patrol vehicle’s dash camera and widely viewed on TikTok showed that the gun left Hadley’s hands before the deputy fired his service weapon. The video shows that Hadley repeatedly shouted “It’s just a BB gun” after he was shot and fell to the ground.