Bernalillo County (N.M.) District Attorney Kari Brandenburg has filed murder charges against two Albuquerque police officers for shooting and killing James Boyd, a mentally ill homeless man, last April. Brandenburg bypassed a grand jury and instead will take the case before a judge who will decide whether to file charges after a preliminary hearing.
Murder charges.
I wrote an article titled, Do Cops Want to Kill People? several weeks after the incident last year. I wrote it because of all the hysteria surrounding the shooting and in response to a conversation I had with a producer at a cable news network who only had misinformation—not facts—that suited her perspective. Her main issues were: the police didn’t need to bother James Boyd as he was a harmless camper, they rushed in when they should have taken their time, they knew the suspect had mental health issues, no one with specialized training was there and they shot him when he was no threat.
I pointed out in the article that virtually all of those statements were wrong.
LawOfficer: Albuquerque Officers Charged with Murder in Camper Shooting
Now we have charges being filed—not an indictment, but charges being filed. One person, an elected official, has decided to move forward and arrest two police officers for murder. “Vindication! It’s about time!” is what many are saying on the tube, over the airwaves and on the blogosphere. There have been surveys, op-eds, editorials and protests all demanding—and believing—that criminal charges should be filed. And now they have. The district attorney; the chief prosecutor; has made the decision. No more of those shady and secretive grand jury processes, this is going to be out in the open.
And I say, “Good!”
“What? You want the evidence in the light of day? For everyone to see?”
Yep. Welcome to the real world where facts are everything and rules need be followed. Welcome to the structure of statutory realities.
Look, when a crime is committed, we in the criminal justice business experience several stages of emotion from many people during the entire investigative and prosecutorial process.
Stage One: He did it, I know he did it, now go and get him. The victims are angry. They want justice and to see the perpetrator arrested. They don’t know or care about petty things like evidence, elements of offenses being met and the need for probable cause (PC) in order to arrest; they just know that Charlie is the one who committed the crime so just go and arrest him. The cops have to explain the processes and rules to the victims which often angers said victims because those details don’t satisfy the belief that “He did it, now go and get him.” And we can’t just go and get him, so victims get mad.
Stage Two: Probable Cause. Police officers take their time, gather evidence, interview witnesses and match information and details with statutory elements. They continue to work with the victims who are often still very emotional. The cops believe Charlie did it and now have what they believe to be the required PC so off to the prosecutor they go to file a charge and get an arrest warrant. The prosecutor looks at the evidence, listens to their arguments and then says; “Sorry, not enough. I want more. Go back and do more investigating. Find six unbiased witnesses. Get me a taped confession.” The cops get frustrated and angry but are stuck because they have run into lawyers who aren’t thinking PC they are thinking: Stage Three.
Stage Three: Proof Beyond a Reasonable Doubt. It’s funny to cops when they hear that prosecutors are nothing more than an arm of the police and will do whatever those police officers ask them to do. Why is it funny? Because nothing could be further from the truth. What prosecutors care about most of all is not losing in court. So, even when they know that probable cause exists and the evidence presented is more than enough for a warrant and a criminal charge, they don’t care. Why? Because they are looking beyond PC. Because in front of a judge or a jury, they know that the burden of proof is much, much more than measly probable cause. What they need is proof beyond a reasonable doubt. And if they ain’t got it, they ain’t gonna win in court. Simple as that.
Here’s my point: Emotion doesn’t matter in a court of law. Agendas don’t matter. Bias doesn’t matter. The only thing that matters: facts; and whether those facts meet the elements of the offense being charged.
So let’s look at the New Mexico State Statute on Murder (30-2-1):
A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused:
1) by any kind of willful, deliberate and premeditated killing;
2) in the commission of or attempt to commit any felony; or
3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.
So, are the elements of the offense of murder have been met in this case?
Did SWAT team member Dominique Perez and former detective Keith Sandy fatally shoot James Boyd (1) “willfully and/or deliberately”? Yeah, they did.
Did they do it in the (2) commission of or attempt to commit any felony or (3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life? Nope and nope.
LawOfficer: Albuquerque Camper Shooting
So one element is definitely met and that’s all that’s needed as that important word “or” is used within those three elements in a very strategic place. Therefore, they did commit murder. Correct?
Well, hang on. Something you need to understand is that while all elements don’t need to be met, some have to be. Like the one in the first opening paragraph.
A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused.
So, did the officers have lawful justification or an excuse when they shot and killed James Boyd? I submit—and I submit as strongly as will their counsel—that they most certainly did. It comes down to this: Why did the officers fire their weapons? (By the way: It doesn’t matter if the tactics by the group of officers individually or collectively were sound or could have been different—though that is a valid argument and training issue.) All that matters is why the officers pulled those triggers. And why did they? To protect the life of an unarmed K-9 police officer. That’s what makes it lawful. And I know so many of you are angry right now. So angry you’ve stopped reading and are already writing me hate mail.
So let’s consider the complete facts. What did the officers know and what were they facing in real time?
1) The subject (James Boyd) had killed someone before, with knives.
2) Boyd had threatened to kill officers multiple times over a three hour period.
3) Boyd refused repeatedly to put the knives down.
4) Boyd told the officers he was coming down the hill and in fact started coming down the hill towards the officers and civilians while still in possession of knives.
5) The unarmed K-9 Officer was within 10-12 feet of Boyd who had gone into an aggressive/assaultive stance (see photo "50.13 seconds").
6) The officers believed Boyd was going to attack the K-9 officer. One of the biggest arguments for charging murder is that Boyd was shot in the back; and he was. But, look at the pictures and watch the video. Not in slow motion like they’ve been showing on TV, but in real time, the way the officers, under extremely high stress, experienced it. What the officers were experiencing was Boyd raising the knife in his right hand above his shoulder (the other knife was in his left hand) in an assaultive stance (one foot behind the other while leaning toward the officer), then lowering his knife and turning slightly to the left, all within two seconds.
See, you admit it, he was turning away.
That’s why he was shot in the back. Without going into stress responses and time motion issues too heavily here: Between the time the officers decided to shoot and when their fingers actually pulled the trigger (I believe) there is a gap of around .5–.7 tenths of a second. When they decided to shoot, Boyd was still facing the K-9 officer.
Yeah. It’s easy when watching it over and over in slow motion while sipping a latte in your living room and saying what you would have done or what they should have done. It’s considerably tougher when the only thing on your mind is: I have to defend my unarmed partner from a guy 10–12 feet away with a history of violence, holding two knives, who has been threatening us for hours and is now moving toward him. I’m the difference between life and death for my partner and he’s not going to die. People advocating indictments for murder point to the video as proof. They say that the officer’s camera showed Boyd appearing to surrender when officers opened fire. I don’t see any indication whatsoever of an actual “surrender.” Looking at it from the officers’ perspective is much different (and, by the way, that’s what counts). One of the defense lawyers for the officers characterized Boyd not as a “surrendering camper,” but as an unstable suspect who was “unpredictably and dangerously close to a defenseless officer while he was wielding two knives.” He’s right. This isn’t murder. The officers showed–beyond a reasonable doubt–that the last thing they wanted to do is kill James Boyd. They spent hours with him. They had specialists on the scene who understood mental health issues. They gave him dozens of warnings. They pleaded. They offered him help. They showed patience. They warned him. They had ample opportunity to do him harm, but they didn’t until he initiated the incident.
Again, arguments can be made concerning tactics and terminology used by one of the officers, but this isn’t a case of murder because these officers didn’t “unlawfully” kill anyone. They reacted to James Boyd and his assaultive behavior toward someone they were duty-bound to protect. And, in a split-second, they had to make the hardest decision ever to be made by a cop. The decision most cops never want to have to make, but sometimes have to—unlike like those in the bleachers.