DENVER (CN) - New Mexico law enforcement officers who shot and killed a man armed with an AR-shaped airsoft gun are entitled to qualified immunity, the 10th Circuit affirmed on Wednesday.
"We conclude the officers are entitled to qualified immunity because their use of lethal force was objectively reasonable based on the circumstances presented," wrote U.S. Circuit Judge Timothy Tymkovich in a 25-page opinion.
The George W. Bush appointee also said the family failed to provide any fact disputes on their state claims that necessitated a jury to untangle.
On Feb. 3, 2021, a driver in Deming, New Mexico, called 911 to report a man standing on an interstate median, pointing a gun at cars. When they arrived, officers from the Deming Police Department and the Luna County Sheriff's Office found 29-year-old Gilbert Valencia walking through the desert with a rifle shaped like an AR-15. Several officers who had been standing 40 feet away said they didn't know Valencia was carrying an airsoft gun, though it had orange paint on the muzzle and lacked a stock and magazine.
As different officers gave different commands, Valencia put his hands up and got on his knees. When ordered to get down on his stomach, Valencia went to move the gun out of the way, prompting three officers to fire 20 shots at him. Valencia died after being shot 10 times.
The whole interaction spanned just 44 seconds.
Deming, 35 miles north of the Mexico border, is home to about 14,700 people.
Led by Ernestina Cruz, Valencia's family sued several named officers and the city of Deming on Dec. 15, 2022, in New Mexico's Sixth Judicial District Court. The officers filed to move the suit to federal court.
On May 20, 2024, Joe Biden-appointed U.S. District Judge Margaret Strickland granted summary judgment on behalf of the officers. The family appealed, arguing Strickland had improperly weighed evidence and settled disputed facts, jobs that belong to a jury. During oral argument in March, the family urged the court to find that police should not have qualified immunity in the case.
Because Valencia appeared armed and since "few crimes are more serious than an active shooter on an estate highway," Tymkovich found that law enforcement responders were reasonable in believing there was an immediate threat to their safety.
"Construing inferences in Valencia's favor, we assume the officers knew Valencia did not open fire at traffic. At the same time, we consider the testimony of the officers, which indicate that they thought Valencia's final movement was dangerous and threatened the safety of those at the scene," Tymkovich wrote. "We find these factors support that the officers were reasonable in believing Valencia was making hostile motions with his weapon."
Barack Obama-appointed U.S. Circuit Judge Carolyn McHugh and Donald Trump-appointed U.S. Circuit Judge Joel Carson signed onto the opinion.
The family's attorney, Erlinda O. Johnson of Albuquerque, did not immediately respond to an inquiry for comment. Neither the City of Deming nor attorney Alan Dahl returned Courthouse News' inquiries.
Source: Courthouse News Service
