Apr. 7—Oscar Najera was unarmed and turning away from Chaves County Sheriff's deputies when they shot him seven times last June, attorneys representing his family say.
The 25-year-old died at the scene.
The deputies who shot him, Ricardo Delgado and Raul Ramos, told investigators Najera had "reached towards his waistband in a threatening manner and appeared as if he was reaching for an unknown object" and they feared for their lives, according to a news release from New Mexico State Police at the time.
But a pair of lawsuits filed by Najera's sister on Wednesday contends that he suffered from a mental health disability and a traumatic brain injury and was not a threat to the deputies. Najera worked full time and was expecting his first child when he was killed.
A wrongful death lawsuit against the Chaves County commissioners alleges Sheriff Mike Herrington — who took office in 2018 — "enthusiastically hires known 'problem cops' from other departments" like Deputy Delgado and has allowed his deputies to lapse in their required firearms qualifications.
A lawsuit filed against the Law Enforcement Academy Board — which oversees officer certification — and its director Kelly Alzaharna alleges the board failed to ensure officers are appropriately trained and certified and that their certifications are suspended or revoked when warranted.
"The LEA Board is really our only hope of policing the police. It is an agency that serves to ostensibly oversee the police and they are failing to do so," said attorney Laura Schauer Ives, who filed the lawsuit along with the American Civil Liberties Union of New Mexico. "The Chaves County Sheriff's Office has reported their deputies are untrained and there have been zero consequences for that."
A spokesman for the Department of Public Safety, which encompasses the LEA Board, said police chiefs and sheriffs file affidavits to confirm their officers have completed the required training. He said, per state statute, failure to complete the training may be grounds for suspension of a law enforcement officer's certification.
"The Department of Public Safety is entrusted, by policy and ethical commitment, to ensure all New Mexico law enforcement officers receive and are given credit for their training," spokesman H.L. Lovato wrote in a statement. "We take seriously any allegations, but do not comment on pending litigation."
A spokeswoman for the attorney general, who is the chairman of the LEA Board, said the office criminally and administratively prosecutes officer misconduct, "therefore, it would not be appropriate to comment on active litigation."
Sheriff Herrington told the Journal that Delgado and Ramos still work in his 34-deputy department. He requested time to examine the lawsuit before commenting but did not respond to a follow-up call. The Chaves County manager did not respond to requests for comment.
The shooting
On the afternoon of June 27, 2021, Najera — who suffered from post traumatic stress disorder and a brain injury after being shot in the face five years earlier — and his girlfriend got in a fight and she called 911 to report he had threatened her with her own gun. She said he had taken off in the car they shared but that was registered to her.
Chaves County Sheriff's Office personnel responded to the call, talked with Najera's girlfriend, and told her the Roswell Police Department would take over the case since the Sheriff's Office didn't have the resources.
But deputies continued searching for Najera.
They found his girlfriend's car at a convenience store but not Najera. Later, investigators discovered the gun in question was in plain sight on the passenger-side floorboard, according to the lawsuit.
Deputy Ramos spotted Najera running toward a park and called other deputies to the area.
At no point did the deputies ask bystanders if Najera was armed or report that he was armed, according to the lawsuit. A deputy radioed that he was heading toward Evergreen street and Deputy Ramos drove there with Delgado in the bed of his truck.
They found Najera was in a front yard wearing a T-shirt and athletic shorts.
Deputies Ramos and Delgado yelled for Najera to show them his hands and get on the ground as they raced toward him with their guns drawn. The incident was captured on Delgado's lapel camera.
"Oscar continued to hold his hands in the air. The deputies continued to race at him," the lawsuit states. "Then, clearly terrified by the two men racing at him with guns drawn, Oscar first moved his left hand from over his head, outstretched it with his palm facing towards the deputies in a defensive posture, and then put both hands downward and bent his knees as he attempted to comply with the deputies demands for him to get on the ground."
That's when "only seven seconds after pulling up in their unit, without warning, without identifying themselves as police, without facing any apparent deadly threat, without waiting for Oscar to get down on the ground, without giving Oscar any additional commands or stating that he was going to shoot him if he failed to comply, Deputy Delgado shot at Oscar eight times."
Ramos, who heard the gunshots and reportedly thought he was being shot at, also fired at Najera three times.
"The deputies' rushed approach of Oscar, failure to deescalate, and failure to accurately assess whether Oscar was a threat of immediate and deadly harm are indicative of a lack of judgment, training, and familiarity with firearms necessary for law enforcement to safely perform their duties," the lawsuit states.
Prior use of force
Before he worked for the Chaves County Sheriff's Office, Deputy Delgado worked for the Roswell Police Department.
While there, in May 2020, Delgado was investigated for dragging a handcuffed woman out of his police car by her hair, slamming her face into the pavement, and kneeling on the back of her neck for approximately three minutes, according to the lawsuit. Her nose was broken during the incident.
The Roswell Police Department found the incident was a "clear example of how officers should not conduct themselves," referred the case to the 5th Judicial District Attorney and reported it to the LEA Board, according to the lawsuit.
Delgado resigned in lieu of termination in June 2020, according to the lawsuit. The next day he applied to the Chaves County Sheriff's Office, saying he left his previous position for "better opportunities," the suit states.
It's unclear whether the 5th Judicial District Attorney has made a determination in the case, and no one from the office returned the Journal's phone call. No criminal charges have been filed against Delgado.
According to the lawsuit, neither Delgado nor Ramos — nor the majority of the other deputies with the Chaves County Sheriff's Office — had completed their required yearly firearm qualification. And none of the deputies with the office had completed training on how to interact with people with mental impairments, the lawsuit states.
When the LEA Board heard the case against Delgado it dismissed it, citing the "totality of the circumstances and lack of available evidence."
Ives said there is a pattern of the LEA Board getting referrals regarding serious use of force and not taking action.
"This isn't an area where there is room for error," Ives said. "If a law enforcement officer has demonstrated any issues with their ability to manage their anger, any issues with judgment, any issues with their credibility, they should not have the authority to make determinations about who gets arrested. They should not have the authority to make determinations on who lives or dies."
