Amelia Baca is still dead.
She was killed April 16th, 2022, by Las Cruces Police Officer, Jared Cosper. He’s back on duty since November, although not on patrol.
The city government has still not explained why Cosper is back on the job. The city has also never explained why the first video the city showed us was a propaganda piece edited to defend the officer – not to share the facts and seek the right course of action. Apparently Cosper’s conduct was acceptable to the city administration.
Prosecutors have still not ventured to say whether this killing was a crime.
If you’ve seen the video of the shooting, you have an opinion. The video is clear and vivid.
It shouldn’t be that hard to watch the video and interviews of Cosper and the few witnesses, review his training, his file, LCPD practices, and the law, and decide whether or not to charge him with a crime.
The local task force finished its investigation June 21. Our DA said a decision “could take several days,” then punted to the AG’s Office on July 31.
Hector Balderas accomplished nothing.
Our new AG, Raul Torrez, I know slightly and respect. Recently Bernalillo County District Attorney, he has ample expertise. I urge him to provide us some response to this very significant public question this month.
Cosper approaches the house, gun drawn. In his defense, he had reason to believe Sra. Baca, 76, was demented and might have threatened someone. She was a diminutive Mexican-American lady who spoke no English. As he arrives, he tells everyone to come outside. Her daughter and granddaughter emerge, not appearing frightened. The granddaughter urges Cosper to “be gentle with her.”
Amelia Baca stands in the doorway. She’s frightened or confused. Her left hand holds two knives, pointed downward. She never raises either or makes a threatening motion. Nor does she drop them. Cosper shouts and curses. She knows no English. Cosper attempts no Spanish. The other ladies are trying to explain something to him.
Ms. Baca does not rush toward him. She probably feels closer to Cosper than she looks on wide-angle video. He has ample room to step back. She seems to take a half-step into the doorway. He fires a shot into her chest.
If I seem to be arguing the prosecutor’s case, I’m not. These are basic facts. What they mean legally is for the AG’s Office to say, and then, perhaps, prove to a judge or jury. (If conviction appears even slightly more likely than acquittal, the prosecution should charge Cosper.)
I do believe that something went awfully wrong here. Whether or not Cosper’s training, experience, and state of mind insulate him from criminal penalties, something is damned wrong. The problem could be LCPD hiring or training, the LCPD administration, Cosper himself, our collective state of mind, or all of these. We must identify and fix what’s wrong.
Not making a clear public statement is a huge insult to Amelia Baca and her family. It’s a huge insult to you and me, and to the male Hispanic lawyer who told me he’d be afraid to report anything to the police. The silence is delaying serious efforts at improvements. Not meaningfully addressing the disproportionate number of questionable killings by Las Cruces police is an insult to all officers and citizens, particularly citizens of color.
City and Attorney-General’s Office: please stop insulting us. Honor Sra. Baca. Do your jobs.
– 30 –
[The above column appeared Sunday, 5 February 2023, in the Las Cruces Sun-News and on KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both stations’ websites.]
[There’s much more to say, and tesponse to the column has been extensive.
Of particular interest is the concern voiced by many that after promising a work session soon on the proposed Citizens Police Oversight Commission (or something similar, under whatever name), Mayor Ken Miyagashima has yet to announce, I believe, any such work session scheduled. Such entities work in other cities, if set up properly; in others, probably, they have not been so effective, often because their powers have been too limited and/or the police (as here, currently) can sovge stuff under the rug too easily.]
[Of interest to the issue of criminal liability is a change in the jury instruction to be given in cases where “Justifiable Homicide” by a police officer is offered as a defense.
A relevant statute is:
30-2-6. Justifiable homicide by public officer or public employee.
A. Homicide is justifiable when committed by a public officer or public employee or those acting by their command and in their aid and assistance:
(1) in obedience to any judgment of a competent court;
(2) when necessarily committed in overcoming actual resistance to the execution of some legal process or to the discharge of any other legal duty;
(3) when necessarily committed in retaking felons who have been rescued or who have escaped or when necessarily committed in arresting felons fleeing from justice; or
(4) when necessarily committed in order to prevent the escape of a felon from any place of lawful custody or confinement.
B. For the purposes of this section, homicide is necessarily committed when a public officer or public employee has probable cause to believe he or another is threatened with serious harm or deadly force while performing those lawful duties described in this section. Whenever feasible, a public officer or employee should give warning prior to using deadly force.
The relevant question is, was the homicide “necessarily committed in overcoming actual resistance to . . . the discharge of any [] legal duty.” Certainly a quick look at the video suggests homicide was NOT necessary. While cops have a good point when critics urge them to shoot the legs of someone approaching with a knife or club, Ms. Baca was not attacking Cosper. He was not in grave danger. She was arguably not even resisting, but rather bouncing from foot to foot in nervous confusion. If she was resisting his lawful order to drop the knives, the homicide was not necessary. He could have stepped back. He could have shot her in the leg.
He could have tried a quieter voice. Certainly he did not handle this as if he had ever learned anything of dementia or Alzheimers.
A common legal issue is whether or not we determine someone’s mental state (e.g., feeling of imminent danger) objectively (that is, would most reasonable folks in the same situation feel the same way) or subjectively (whatever I think Cosper should have felt, if he was seriously frightened that’s what matters).
On January 1, 2023, a change to the relevant jury instruction took effect.
Uniform Jury Instruction 14-5173 has been amended to read:
14-5173. Justifiable homicide; public officer or employee.1
An issue you must consider in this case is whether the killing of [Amelia Baca] was justifiable homicide by a public officer or employee.
The killing was justifiable homicide by a public officer or public employee if
1. At the time of the killing, the defendant was a public officer or employee;
2. The killing was committed while the defendant was performing the defendant’s duties as a public officer or employee;
3. The killing was committed while overcoming the actual resistance of [Amelia Baca] to the discharge of [Officer Cosper’s duties]; or
4. The defendant believed that [Amelia Baca] posed a threat of death or great bodily harm to the defendant or another person; and
5. Under the totality of the circumstances, a reasonable officer would have acted as the defendant did. The following factors may be considered in evaluating the totality of the circumstances:
[the officer’s training]
[the officer’s experience]
[the officer’s expertise]
[the feasibility of giving a warning prior to using deadly force]
[the feasibility of taking lesser measures than using deadly force]
[(other factor(s))]8
The burden is on the state to prove beyond a reasonable doubt that the killing was not justifiable. If you have a reasonable doubt as to whether the killing was justifiable, you must find the defendant not guilty.
In short, this clearly requires both the subjective belief she posed great danger AND that his action was objectively reasonable.
It’s tough for me to watch that video and conclude that under all the a reasonable officer who cared about protecting human life would have acted as Cosper did. Further, such specific factors may be considered as his failure to give her a warning [though she would not have understood it], and the feasibility of taking lesser measures [such as backing up, aiming for the legs, or trying to tase her, though that last would be unlikely when she held two knives.] (But I am not a police officer, and for all I know the mere fact of her holding a deadly weapon and not following his command to drop it gives him license to shoot her under LCPD rules.)
However, the state must
prove these issues beyond a reasonable doubt. To me, if I am making
the decision, (a) Cosper’s action does not appear to meet the
standard for justifiable homicide, thus (b) there’s a reasonable
likelihood that a reasonable jury would see it that way, but (c)
without hearing Cosper’s defense or his lawyers arguments, no one
can say whether the state could convince each member of a jury beyond
a reasonable doubt. Therefore, barring some insurmountable obstacle,
I’d be charging him and feeling confident but far from certain of a
conviction. But, again, I do not know all the rules and precedents.
My “legal career” involved mostly civil cases, not criminal. ]
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