This post is actually a few days over due but, it’s a summary of my thoughts on New Mexico police shooting at a mini van last week in Taos, New Mexico. Regardless of our opinions about Officer Elias Montoya’s decision to shoot at the van, it’s an undeniable fact that the driver, Orianna Ferrell, started the ball rolling toward this incident with the first traffic stop. The initial traffic stop was not the result of a “jackbooted thug” out to get anyone. It was a result of Ferrell’s failure to obey the speed-limit. Nothing about Officer Tony DeTavis’ demeanor in that initial stop was combative, insulting, or anything but professional, direct, and respectful. DeTavis was trying to cut Ferrell a break by not citing her for an expired license. All Ferrell had to do to be on her way was make a decision to pay the fine or fight the ticket by going to court, then sign the ticket to be released on her own recognizance. If she later found she couldn’t make the court date, she could contact the court to set a new date if needed but, by refusing to sign the ticket, she was electing to go see the magistrate right then and there. But, after receiving a lawful order to turn off her engine so DeTavis could talk to dispatch, Ferrell elected to drive off…Folks, that is a crime in 50 states. Everything that happens after that point is precipitated by that decision.

Ferrell pulled over when DeTavis got behind her again but, she contended that she hadn’t tried to run and acted as if she thought she could talk her way out of what was now a arrestable offense.  She can’t argue she was trying to get her children away from any crazed officers at the point because it was just her and DeTravis, yet she decided to drive away.  It can be argued that DeTavis was too nice at this point. At this point, she can readily be charged with obstruction, evading, and because she’s not complying with DeTravis’ attempts to arrest her, she can be charged with resisting arrest. It is bothersome to me that at this point, a lot of people say they are “proud” of Ferrell’s son’s actions here because he’s defending mom. But, let’s take the emotion out of this for a minute. He’s not defending mom. He’s committing a crime. He’s interfering with an officer who is lawfully executing his duties. This isn’t Selma, Alabama in 1965 and she’s not protesting “Jim Crow” or any other violation of her rights. She made a decision to turn what should have been a simple traffic citation into an arrest. It sounds strange but, the only thing I’ve seen use of force experts fault DeTravis for in this whole incident is being “too nice.” More specifically, not using enough force when appropriate and loosing control of the situation as a result. Several experts on use of force have said when Ferrell’s son initiated a fight the first time, he should have been tazed or pepper sprayed then and there. Same with mom once she actively resisted arrest. It might have been ugly and still resulted in hurt feelings but, it probably would have been a much smaller political football than the chase and shooting by Montoya.

On Officer Elias Montoya’s decision to shoot at Ferrell…sorry, shoot at Ferrell’s tires; for the time being, the local prosecutors are not charging him and contend that he was justified. Montoya claims he was attempting to shoot out the vehicle’s tires to prevent Ferrells escape. Each agency’s policy on use of deadly force (discharging a firearm is deadly force) varies and it should be said that many agencies have dropped the practice of shooting at vehicle tires because more often than not, it has been found to be ineffective as it does not immobilize a vehicle. In light of the dashcam video however, any other explanation of Montoya’s actions could to be seen as criminal or criminally negligent.

Oriana Ferrell, has since been indicted for intentional abuse of a child and aggravated fleeing of a law enforcement officer as a result of the chase as well as possession of drug paraphernalia as a result of two marijuana pipes subsequently found in her vehicle. She has penned an op-ed piece on the incident. You can read it here. In her article, Ferrell claims she fled because DeTravis was beating on the vehicle with his baton and because Montoya was shooting at her. It would seem that she has selectively forgotten the order in which these events occured or why DeTravis was beating on her window to begin with. Montoya, for what it’s worth, did not shoot at the vehicle/Ferrell until after Ferrell began to drive away. All that said, I have doubts this incident will result in any jail time for Ferrell or her son because any trial against them would seem to involve this video.

My own opinion is that Ferrell is either willfully ignorant of the law or she doesn’t think it applies to her. From the beginning, she made a stupid decision that set things in motion for everything that followed.  At the same time, I think New Mexico may need to review their police policies and their laws if Montoya’s actions are considered justified. My guess is that at most, Ferrill will be fined as a result of her actions and may face probation. Most officers I have spoken with expect Montoya’s career with New Mexico State Police may be over even if he never faces criminal charges. The reason? There’s no articulable threat to Montoya or any other officer when he opens fire and as mentioned, most agencies have abandoned the practice of shooting at suspects’ tires except under the most dire of circumstances. In Texas, the only agency that we commonly see using the practice anymore is the Texas Department of Safety. Even then, the practice is only employed after a suspect has rammed other vehicles, attempted to run down officers, or otherwise clearly demonstrated homicidal intent with his vehicle. We don’t see that in this case and as a result, most officers I’ve asked, can’t see Montoya remaining employed as a police officer.

-GM

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