Las Cruces, NM has seen it’s share of controversial Officer-Involved-Shootings (OIS) in the last couple years. And this one may be the most legally problematic one yet.
The issues in this case are vast and touch on:
The legal standard police need to detain,
‘Colorful’ language, de-escalation, and general professionalism by police,
The use of deadly force, and the physical limitations that humans are trapped within while under extreme stress.
Police.Law.News Bias
I am openly biased in favor of officers when they have reasonable suspicion or probable cause to detain.
**ie. I prefer when police officers follow the law.
If officers have a legal reason to detain - I will admittedly give more leeway in my analysis/breakdown to police officers if the suspect later resists and the officers use force to maintain control or defend themselves.
However, if an officer has thin or no legal reason to detain - my evaluation of a subsequent use of force will be far harsher.
I have very little tolerance for unlawful detentions. If a police officer is going to restrict the freedom of a person - they better fucking have a lawful objective to do so.
Just as I also have zero tolerance for suspects resisting arrest or fighting with cops - when there is a legal detention.
Initial Contact
On October 3, 2023 Las Cruces, NM Police Officer Felipe Hernandez was on bike patrol when he made contact with Theresa Gomez and her passenger (Jesus Garcia) who were in a vehicle and parked on public housing property.
Officer Hernandez immediately instructed Ms. Gomez to step out of the vehicle and Mr. Garcia appeared confused and stated, “We did nothing wrong”.
Officer Hernandez instructed Ms. Gomez to, “Step out of the vehicle.” She responded that she did not have to step out of the vehicle and then Officer Hernandez informed her that he would, “pull” her out.
Ms. Gomez then stated, “I want your Sergeant!” and “Don’t touch me!” as Officer Hernandez grabbed her arm.
So, as you can see this interaction has complete gone off the rails from the outset.
While Officer Hernandez was trying to convince Ms. Gomez to exit the vehicle she stated that she was on the property visiting a friend and Officer Hernandez stated that it was, “too late”.
The Passenger
Once Ms. Gomez exited the vehicle Officer Hernandez recognized Mr. Garcia by name and reminded him that a judge had told him not to come back to this property. He then informed Mr. Garcia that he was going to, “put out a warrant” for him and asked Ms. Gomez to speak with him at the rear of the car.
The Name Game
Ms. Gomez questioned why the officer was asking for her name. The best answer that Officer Hernandez could give was to inform her that the passenger (Mr. Garcia) was “trespassing” and that he was “doing a fucking investigation here.” Officer Hernandez pointed at Mr. Garcia and stated, “He’s already trespassing. That’s my probable cause.”
Eventually, Ms. Gomez gave the officer incorrect personal information and continually questioned why she was being detained.
After writing down the information that Ms. Gomez gave him - Officer Hernandez instructed Ms. Garcia to sit back in the vehicle.
Flee
Officer Hernandez was standing near the driver’s side of the vehicle and the door was open. Ms. Gomez started the car and suddenly fled the scene. She initially reversed and struck the officer with the open door. Officer Hernandez was struck but remained on his feet. Ms. Gomez then accelerated forward.
The Use of Force
It was at this point - as Ms. Gomez was driving forward and away from Officer Hernandez that he yelled, “Stop! Stop!”, drew his firearm, and fired several rounds at the vehicle. Ms. Gomez was struck by the gunfire and sustained fatal injuries.
There are (and should be) a lot of questions about this case. Here are a few of the issues:
Issues
Was there reasonable suspicion to detain?
The reason that Officer Hernandez gave for detaining Ms. Gomez was because she was on public housing property after hours. If the property was posted as “No Trespassing” - then it is possible that reasonable suspicion to detain existed.
But, even that would be very thin. Since people live at this housing complex - there would be no way for Officer Hernandez to know if Ms. Gomez was a resident, was visiting a resident, or giving a resident a ride to the hospital.
Also, some public housing properties have “rules” against guests of residents being at the property after certain hours. But, that would be a “rule” that the resident would be responsible for following - not a criminal statute enforceable against guests.
Officer Hernandez then explained to Ms. Gomez that the “probable cause” was that Mr. Garcia was “trespassing”. However. the officer did not have that information when he made the initial detention, and even if there was a reason to detain Mr. Garcia - that does not transfer to Ms. Gomez.
From the information currently available - it does not appear that Officer Hernandez had reasonable suspicion to detain Ms. Gomez. Officer Hernandez could have contacted Ms. Gomez and investigated as a “consensual contact” - but absent reasonable, articulable suspicion that a crime has been or is being committed - this detention was unlawful.
Did the officer unnecessarily escalate the situation?
Probably. The officer was objectively unprofessional. That unprofessionalism is likely a violation of department policy. However, the fact that an officer uses foul language does not mean that an individual is allowed to conceal identity, resist arrest, flee the scene, and strike the officer with a vehicle. A policy violation by a police officer is not legally or morally equivalent to striking an officer with a vehicle.
An experienced officer will typically be more professional and friendly when investigating an incident where reasonable suspicion is thin. And attempt to uncover evidence through an objectively “consensual encounter”. This tactic/technique (or lack thereof) is often evidence of a High IQ or Low IQ officer.
Was the use of force “objectively reasonable”?
No. Here’s why.
Simply put. The officer was no longer in imminent danger of death or great bodily injury - as he fired rounds at the fleeing vehicle.
So, if he fired at Ms. Gomez while the car was backing into him, making contact with him, and at any moment - Ms. Gomez slamming on the gas pedal could have dragged him under the car - then the use of deadly force would be absolutely reasonable and within the law and any department policy.
Once the vehicle was driving away - the reasonable/acceptable timeframe to utilize deadly force had passed.
Force Science
It is interesting to evaluate cases like this under the lens of Force Science (which is a great class - highly recommend!).
There is a reactionary gap between when a human makes a decision and then puts that decision into action. That reactionary gap is inevitable and the memory of it may be blurry to humans under intense stress.
In this instance the reactionary gap was between 2 and 3 seconds. That is the time between when the officer was objectively in immediate danger and when the first shot was fired.
Most research (Force Science, Tueller Drill, etc…) indicates that it takes the average police officer between 1.5 and 2 seconds to draw their gun and fire.
This is not a legal defense. But, it could explain why it depicts on body cam video that Officer Hernandez waited to fire his weapon until the vehicle was driving away.
Officer Hernandez could have made the decision to utilize deadly force - when it was objectively reasonable to do so. However, since it takes 1.5-2 seconds to draw and fire - the manifestation of that did not take place in reality until the threat had ceased.
Final Thoughts
This OIS is likely not objectively reasonable.
There was no reasonable suspicion to detain Ms. Gomez and therefore - this all could have been avoided if Officer Hernandez knew (or followed) the law.
Officer Hernandez should not have detained Ms. Gomez. And, Ms. Gomez should not have tried to flee from the scene and strike Officer Hernandez with the car door. The combined bad behavior by both of these adults is astonishing.
The use of deadly force from Officer Hernandez took place - after the deadly threat had ended. That is a “bad fact” and one that is impossible to ignore.
Even though “Force Science theory” may be able to explain why this unfolded as it did - that information will not be a part of the legal analysis by prosecutors or the administrative investigation by Internal Affairs.
Thanks for responding back to me and I completely agree. Maybe I didn't make it clear. The fact that the officer never called for backup, never made the passenger get out of the car, never secured the passenger or the weapons, is a huge problem for the officer. At a minimum it's a training issue and it would make me second guess how this officer handles his officer safety in the field. But to me, a BB gun or a paintball gun in the hands of a suspect could very well equal a deadly force response. Just like a taser in the hands of a suspect, while the object alone most likely can't kill the officer, it could certainly be used to incapacitate and seriously injured an officer and allow the suspect to take the officer's gun and use it against that officer. The fact that this officer showed little to no concern is disturbing.
Just a couple of comments here. First you didn't mention in your description of this incident that the male pulled what appeared to be two handguns from between the seats where he was sitting and from inside of his waistband. The fact that they both claimed they were paintball guns is immaterial until the officer actually gets to inspect them. That immediately heightens the concern for the officer safety here and I have to wonder why the officer did not call for backup and wait for that backup to arrive and remove the male from the vehicle and try to determine whether or not those were real weapons or not. Regardless, if you've ever participated in a paint gun battle, you know those damn things hurt and at close range, particularly to the face or throat they can be very damaging if not life-threatening. I've seen teeth knocked out, cheekbones broken Etc and that was with people playing with face protection on.
Regardless, in my opinion I believe this was a valid Terry stop based on the fact that the officer is obviously patrolling this area on a bicycle, he states that this is an elderly / retirement community and yet here you have two very young people in the parking lot. I'm going to make a couple of educated assumptions here. I'm going to assume that there are signs stating that there is no trespassing posted in this community. I'm going to bet that there is a signature on record from the Property Management giving police permission to make stops after a certain hour and I'm going to assume that there is documentation on record regarding past issues including assaults on some of these people, drug dealing in the parking lot and prior trespassing issues making this a high crime area.
Personally I have no problem with the officer's language, this is Common Street vernacular and he wasn't calling anyone names, but rather simply using that Common Street vernacular to speak to these people in a way that is most likely ordinary to them.
As soon as he recognizes the passenger, all bets are off. But I still don't understand why he's got two people, it's after dark, one of them is armed with two weapons, and I don't believe I heard him call for backup and he certainly didn't wait for any backup to arrive before he started removing people from the vehicle.
Again, it's my opinion that this was a valid Terry stop based on the totality of the circumstances and the information known to the officer about the area regarding past crimes and incidents.
As for the use of deadly force I don't believe this is objectively reasonable at all. The officer was standing next to the car when she backed up and he was only in danger of being struck by the door. He moved away from the door and there was no way that vehicle was going to strike him. She then put it in drive and went forward and away and he fired directly at her from just a few feet away while her door was still open. While the officer may have felt some type of danger at the time, the video shows that at no time was he in danger so the video is damning in my opinion. I do not believe this was a reactionary Gap or action versus reaction situation.