Lawsuit alleges Albuquerque police unlawfully entered apartment before fatally shooting man

David McElvain was inside his home when two Albuquerque Police Department officers opened the door after someone called for a welfare check on the 67 year old. Seven seconds later, an officer opened fire three times, fatally shooting McElvain, according to a wrongful death lawsuit filed in 2nd Judicial District Court. 

The lawsuit, filed on Jan. 13, alleges that the officers entered McElvain's apartment without a warrant before the shooting unfolded at his Northeast Albuquerque apartment.

"Our Supreme Court of the United States, as well as the Supreme Court of New Mexico, have both dictated circumstances when law enforcement does not require a warrant and this case just doesn't meet that standard," said Taylor Smith, one of two attorneys for the plaintiff. "It's a heightened standard because of all the protections that each of us have within our homes."

Gilbert Gallegos, spokesperson for APD, said the department will respond to specific allegations of the lawsuit in court. 

The plaintiff of the lawsuit — Ramon Soto, a personal representative of McElvain's estate — is seeking punitive and compensatory damages, as well as setting a precedent for law enforcement officers when they enter a person's home.

"We just want the department and its officers to follow those policies and procedures, as well as all existing laws which protect our homes and we're hoping that this is a reminder to APD and its officers that they have to do that," Smith said.

Meghan Sparrow, the other attorney for the plaintiff, added that a welfare check should "never end in death by police" and officers should be offering community resources to those in need. She said, "Instead, they end up walking away with a dead body, and not of Mr. McElvain's doing but of APD's doing."

On Feb. 28, a supervisor at a local hospital called 911 about McElvain, an employee, and asked a dispatcher to send someone to his home to check on him after he called into work, the suit states.

"Mr. McElvrain had made some pretty cryptic comments to his coworker indicating that he was depressed and that he may or may not have been suicidal," said Sparrow. "She called 911 to just ask them to go check and make sure that he was okay."

APD at the time had not found any prior behavioral health-related incidents tied to McElvain, according to previous Journal reporting.

A dispatcher sent Albuquerque Community Safety responders to McElvain's apartment —  Villa La Charles, in the 12200 block of Montgomery NE, just west of Tramway — around 9 a.m, states a news release from a Mar. 31 APD briefing on the shooting.

"An ACS responder noted that the McElvain’s truck was parked at the apartment complex," according to the release. "She expressed concerns and requested assistance from APD officers."

APD officers Jonathan Barela and Amanda Marquez were sent to help with the welfare check roughly 15 minutes later, according to the lawsuit. They knocked on McElvain's door and window multiple times and shouted, "If you need help, please let us know" and "we're here to help," but McElvain did not open the door.

"Officers made contact with ACS responders who said they talked to McElvain’s neighbor, who said he had been acting strange in recent days," the APD release states. 

McElvain's door was closed, his windows were shuttered and the lights were off, the lawsuit alleges. When officers knocked on his door, a dog barked in response.

At some point, officer Barela saw that the door was unlocked and opened it. Barela said he was concerned that McElvain "may have harmed himself, which therefore would explain why he was not answering the door and not responding," according to the APD release. 

Both officers announced themselves again and stood at the threshold of the apartment, the lawsuit states. 

Smith said that officer Barela said that the door was open and that he did not touch the door handle, but "but lapel camera footage shows otherwise." He added, "Instead, he jiggles the handle, opens the door and Mr. McElvain's dog came to greet the officers."

McElvain came around the corner, roughly six feet away from officers, with a gun in his hand. According to the lawsuit, the gun was "pointed down to the ground and was held loosely."

Barela pointed his gun at McElvain and Marquez reached for hers while shouting at McElvain to put his gun down, the lawsuit states. Barela allegedly told McElvain to put his gun down before he shot at him three times. 

"You don't see him make any type of threatening movement or threatening words and within that seven seconds, they shoot multiple times, striking Mr. McElvain in the head," Smith said.

Lapel video from Barela showed McElvain lifting the gun and pointing it at officers before they shot him, according to previous Journal reporting. Police later learned that the gun was not loaded.

The shooting was Barela's first. Gallegos said that because Barela was the only one to fire his weapon, he is the only one considered an "involved officer" in the shooting. However, Marquez is named as a defendant in the lawsuit.

Both officers are still with the department and neither has been involved in a police shooting since. 

Nakayla McClelland covers crime and breaking news. Reach her at nmcclelland@abqjournal.com or at 505-823-3857.