• J.R. Lonsway

Shut Up, Mr. Bregman

Sam Bregman is the Albuquerque attorney representing the family of Antonio Valenzuela in a lawsuit against the City of Las Cruces Police Department on a claim of wrongful death during his arrest by Officer Christopher Smelser and other police officers. During a violent struggle in which Valenzuela fought officers, Smelser applied a departmental-approved use of force method called VNR (vascular neck restraint).


Officer Smelser can be heard on audio warning Valenzuela to stop resisting or he was going to choke him out. Reportedly, Valenzuela was trying to remove what officers believed to be a knife from his pocket as he fought with them, and because being stabbed with a bladed instrument can do significant damage and cause death, the officers took the steps necessary to prevent him from removing that dangerous weapon (the weapon turned out to be a multi-purpose tool, and those do have knife blades, but not being equipped with X-ray vision the officers could not see that). They had used a taser on Valenzuela twice with no results.


More than three months after Valenzuela's death, Smelser has been charged with involuntary manslaughter by the DA's office despite two very important facts. (1) Office of the Medical Investigator autopsy attributes cause of death being due to asphyxiation and the drugs in Valenzuela's system: amphetamine, methamphetamine, and fentanyl; (2) VNR was a departmental-approved use of force technique.


Now, Sam Bregman wants Smelser charged with 2nd degree murder. The attorney says that because Smelser told Valenzuela during the struggle "I'm going to choke you out, bro" it constitutes a murder charge. It doesn't. What Smelser was saying to Valenzuela in a language he could understand was stop resisting, stop fighting us, stop trying to pull that knife out of your pocket or I'm going to have to increase the level of force to get you under control.


Here is the New Mexico statute on 2nd degree murder: Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.


(1) Smelser had lawful justification and (2) the use of a departmental-approved VNR did not carry with it a strong probability of death or great bodily harm. In fact, if not for the drugs in Valenzuela's system the death most likely never occurs. Of course, given that rationale, if Valenzuela doesn't run, doesn't resist, doesn't struggle violently, and doesn't try to pull a weapon out of his pocket NONE OF THIS OCCURS. I could even go so far as to say that if LCPD Chief Gallagher never approved VNR as a use of force technique in the first place, Smelser never would have applied it.


A few years back, Bregman represented Albuquerque police officers in a very questionable shooting of a homeless man in the city's foothills. You can find that video online and draw your own conclusions. The homeless man was mentally ill, armed with two knives, had been shot with beanbag rounds and stun guns, and all to no effect. His offense? Illegal camping. He was ultimately shot dead by two officers armed with rifles when, in their opinion, a fellow officer got too close to the suspect. The two APD officers were charged with 2nd degree murder (Bregman said they never should have been charged in the first place). The case ended in a mistrial and the DA's office there decided not to retry the case.


In my career I remember two suspects arrested by LCPD that died in police custody. Both had significant levels of drugs in their systems, both fought the arresting officers, and both died. Departmental-approved use of force techniques were applied (I don't remember if either case involved VNR) and none of the officers involved were ever charged with a crime, much less murder or manslaughter.


I wrote this before and I'm writing it again: the death of Antonio Valenzuela is a tragedy. But in no way, shape, or form was there any criminal intent on Smelser's part. He is the victim of political correctness as a result of what is going on in this country regarding the death of George Floyd. So, please, Mr. Bregman, just shut up.

J.R. Lonsway served 22 years with the Las Cruces, New Mexico, police department and retired as a Deputy Chief of Police. After retirement he served with the U.S. Department of State as a police advisor in Kosovo, Afghanistan, Liberia, Haiti, Lebanon, and South Sudan. He is a former U.S. Marine.

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