Sitting On The Political Fence

I've been critical of District Attorney Gerald Byers since 2020 when he charged former LCPD officer Chris Smelser with involuntary manslaughter, and within weeks of doing so dropped that charge and gave the case to the State Attorney General's office. Byers was the Chief Deputy District Attorney in Doña Ana County at that time. He never gave an explanation for filing the charge, dismissing it, and asking the AGs office to take it. As we all know now, the AG charged Smelser with 2nd degree murder and two years later he was exonerated when those charges were dismissed by the judge presiding over the trial.


Now another case has arisen, this one involving the LCPD officer who shot Amelia Baca, the 75 year old woman who was experiencing a mental health crisis and had two knives in hand when she was shot and killed. I watched that video and I've been pretty clear with my opinion that I would not have taken that shot. There were other alternatives to shooting her that could have been attempted. But as I've written previously, that doesn't make her shooting a crime, or even a violation of LCPD policy regarding deadly force.


There is case law with regards to police use of force and anybody who attended law school or studied criminal justice knows Graham vs. Connor. Graham vs. Connor was a Supreme Court case that says any claim of excessive force by the police is subject to the objective reasonableness standard of the Fourth Amendment. In a nutshell, the Supreme Court issued an opinion that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”


Before that, there was another case that shaped use of force policies across the country and it was Tennessee vs. Garner. In that case, the court held that when a police officer is pursuing a fleeing suspect, deadly force cannot be used to prevent escape “unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Amelia Baca was not fleeing but she certainly posed a threat of death or serious physical injury to her family, which is why they called LCPD in the first place.


Gerald Byers has told the media that he wants an opinion from the Attorney General regarding this case, so he has sent it to Santa Fe for review. This from a man who has an office full of prosecutors who studied case law just like he did when they were in law school, and I'm sure are capable, competent and qualified to make a determination regarding objective reasonableness when it comes to use of force. Perhaps the water in Santa Fe makes people smarter.


Byers had the Baca case for several weeks without making a decision on what to do with it, and it just happened to be during the time period of Chris Smelser's trial. A cynic might say, hmmm, were you waiting to see, Mr. Byers, what the verdict would be in that trial before announcing any charges in the Baca case? And when the judge handed down a directed verdict in the Smelser case, which was basically a bitch slap to the prosecution, did you suddenly decide to send the Baca case to Santa Fe? What would your decision have been if Smelser's case had gone to the jury and he'd been found guilty?


The media has given Byers a pass and did not, and will not, ask those questions. Just as they have done with other elected officials in the past, the clown show known as the Sun-News doesn't like to ask tough questions of people in positions of power. They are, however, quick to judge when it comes to LCPD and do their best to make cops look bad with slanted liberal viewpoints and opinions.


I like to ask relevant questions, simple things like why aren't you doing the job you were elected to do, Mr. Byers? Why are you sending cases to Santa Fe, something I never saw any prosecutor do in the 22 years I was a cop? This is like a municipal chief-of-police sending personnel matters to the chief of the New Mexico State police and asking him to please make a decision for him/her.


I know it is common for one lawyer with a question regarding a case to pick up the phone and dial another lawyer who has experience in that field and ask for an opinion. And there is nothing wrong with that. But an elected DA who has now formally sent two cases to the AG in Santa Fe regarding encounters between citizens and police that resulted in deaths? When citizens elect a district attorney they do so with the expectation that tough decisions will be made that will not always be popular with all political factions. Deflecting and avoiding that responsibility by sitting on the political fence is not what voters want.


There were prosecutors that were with the DAs office who quit and now work in Otero and Luna counties. They still live in Las Cruces but travel to their respective jobs out of town because they don't want to work under Gerald Byers. When Byers was Chief Deputy DA under Mark D'Antonio, three female prosecutors filed sexual harassment complaints and settled out of court for undisclosed sums. They, too, quit the DAs office.


Byers ran unopposed in 2020 (in my original post I wrote that he is running for reelection this year. That is incorrect. He is running for reelection in 2024).


Semper Fi and stay safe out there.







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