New Mexico district attorney refuses to indict cops after grand jury calls shooting 'unjustified'

© Roswell Police Department

Police shooting victim Roberto Mendez

A special prosecutor says she won't pursue charges against two Santa Fe police officers who shot a 26-year-old man in the cheek in August 2013 as he tried to flee in an SUV that his mother had reported stolen.

A Santa Fe County grand jury, in a rare finding in an officer-involved shooting, determined last year after reviewing evidence in the case that the shooting was not justified .

But Roswell District Attorney Janetta Hicks announced Thursday in a letter to New Mexico State Police that she will not prosecute Officers John DeBaca and Stephen Fonte. First District Attorney Angela "Spence" Pacheco had asked Hicks to serve as a special prosecutor in the case after the local grand jury's October finding.

Tom Clark, who represents the injured man, Roberto Mendez, said he was in shock when he learned that Hicks had declined to prosecute the case. "This means that the grand jury doesn't mean anything," Clark said. "I would have liked to see justice out of the criminal justice system," he said, adding that he plans to file a lawsuit against the city. In September, Clark filed a tort claim notice informing the city of his client's intention to sue.

Hicks' announcement comes at a time when police use of force is under heightened scrutiny around the country. Earlier this month, District Attorney Kari Brandenburg of Albuquerque filed murder charges against two Albuquerque officers who had fatally shot James Boyd, a 38-year-old mentally ill homeless man who had been camping illegally on a mountainside in March 2014. Brandenburg said she was deviating from her past practice of presenting evidence in officer-involved shooting cases in secret grand jury proceedings because she wanted transparency in how the widely publicized incident is handled by the criminal justice system.

Hicks' letter says that after she reviewed evidence of the Santa Fe officers' actions, she determined that "a reasonable person in the same circumstances would be in fear of death or great bodily harm to himself or others and might use deadly force."

Police have said that DeBaca and Fonte were involved in the Aug. 8, 2013, encounter that left Mendez with a gunshot wound to the cheek. But they said Mendez, who has a criminal history dating back to 2006, nearly hit the officers with the SUV he was driving before they fired at him.

The incident began at an Allsup's convenience store at Cerrillos Road and Calle la Resolana where, according to police accounts, officers confronted the occupants of an SUV that fit the description of a vehicle reported stolen by its owner, Mendez's mother.

Mendez, who had four passengers in the vehicle - another man, two women and a 4-year-old boy - had refused to get out of the SUV, police said in a statement following the shooting. Instead, he put the vehicle in reverse, hitting a patrol car, and then drove toward officers while "trying to flee the parking lot," police said. "During this time, the officers fired their weapons at the vehicle," the report said.

At the time of the shooting, Santa Fe police said Mendez was armed. But state police investigators later determined that Mendez was not armed at the time.

Dashboard camera video of the incident shows the two Santa Fe officers approach the SUV. Mendez then puts the vehicle in reverse and rams their patrol car. The two officers shoot several rounds at the SUV, the video shows, and after a short car chase, they corner the vehicle in the parking lot of the Big 5 Sporting Goods store on Cerrillos Road, where Mendez is arrested.

DeBaca, who has been with the city police force since May 2011, fired the shot that hit Mendez in the mouth, investigators said. Clark has said the bullet was lodged in Mendez's jaw. Both officers are still with the force but are working in department offices rather than patrolling streets.

Chief Eric Garcia said Thursday that he's glad the two officers will soon be able to get back on street patrol and "serving our community."

Hicks said Pacheco doesn't have an option of pressing charges against the officers, since she appointed Hicks as the special prosecutor. "As such, she no longer has authority over the case," Hicks said in an email.

Pacheco said Thursday that she had no comment on the case because she no longer has jurisdiction.

The Santa Fe district attorney, who had served as a prosecutor from 1989 to 2000 and was first elected district attorney six years ago, said in October that it was the first case she's aware of in which a grand jury found an officer-involved shooting unjustified. She said she has presented about half a dozen such cases to grand juries.

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