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This story was updated at 9:40 a.m. on Nov. 16 with an additional statement from District Attorney Gerald Byers regarding the case's referral to his office.
As the statements provide contradictory information, both statements are reproduced in full at the bottom of the story.
Police confirmed that the firearm wielded by a man shot by police on Nov. 11 was a “replica” gun and not a functional weapon.
Police Chief Jeremy Story confirmed that fact and provided additional details about the police shooting at an apartment complex on the 1300 block of S. Espina Street. The shooting left Danny Garcia De Leon, 50, injured and charged with two felonies. The officer who shot him is on administrative leave.
“It's going to end up being a replica firearm, which is obviously very difficult or impossible to tell from looking at,” Story said, later pointing out that Garcia De Leon and the officer were about 70 feet apart when the shooting occurred.
Story also used the conference to point out that Garcia De Leon was released from jail shortly after he was processed.
“He was booked at 4:49 a.m. He was released at 4:51 p.m. So, he was in custody for 12 hours and two minutes on two serious felony charges, which, in my opinion, is a significant problem and continues to highlight the issues with our system,” Story said.
Subsequently, Doña Ana County District Gerald Byers provided contradictory statements as to whether prosecutors had received a referral in the case.
According to court records filed against Garcia De Leon, the incident began when a neighbor called 911 to say that Garcia De Leon was harassing him verbally. This had been ongoing for about two years, according to the neighbor's statement to police.
“There was a man over there, and he looked like he had a pistol,” the neighbor told dispatchers, as relayed in a 911 call presented at the news conference. “He just like gestured it at me. Like, flashed it at me. He’s outside yelling right now.”
Two officers arrived shortly after. The body camera presented at the news conference shows that Garcia De Leon dropped the knife as they arrived. The officers also see Garcia De Leon reaching behind his back and spotting the fake gun.
They tell him multiple times “don’t be reaching for anything” and “drop the knife,” as they confer with each other. The knife in question was a steak knife.
A second video clip shows one of the officers, identified by police in the criminal complaint as Officer Jesse Rogers, asking Garcia De Leon, “Ah, what do you have in your hands, man,” prompting Garcia De Leon to respond, “What the fuck?”
Talking to the other officer, Rogers says, “Is that a gun, bro?”
“Let me see your hands,” Rogers says, his flashlight pointing at Garcia De Leon. “He has a gun, bro.”
Rogers then jogs over to a dumpster, presumably for better cover in a potential shootout, and draws his gun.
“Let me see your hands,” Rogers says as Garcia De Leon comes back out.
Garcia De Leon responds, but it’s unclear what he says.
“Don’t be reaching,” Rogers says before firing at Garcia De Leon four times.
At least one of the rounds struck Garcia De Leon, who was hospitalized with non-life-threatening injuries. Shortly after, Garcia De Leon was released from the hospital and sent to jail.
Garcia De Leon is charged with aggravated assault for his alleged actions against his neighbor and aggravated assault against a police officer allegedly reaching for the fake gun before police shot him.
In New Mexico, all defendants are entitled to be released from jail upon arrest. If someone presents a danger to the community or to a person, prosecutors have the option to file a motion requesting a judge to hold them in jail. From there, something like a mini trial occurs, where the prosecutors argue that the defendant is dangerous and that no conditions of release can assure public safety.
That did not happen in this case. Court records show no motion was filed requesting to hold Garcia De Leon before his release.
District Attorney Gerald Byers initially responded with a statement saying his office had not received an intake from the police department. (His original statement appears below.) He subsequently followed up, in a message to the office's spokesperson, saying the office had received an intake package after all, on Nov. 12 – the date of De Leon's first appearance in magistrate court. Byers said the case was under review and could lead to a motion for pretrial detention.
The two statements presented to the Las Cruces Bulletin appear below:
"Judge Kent Wingenroth denied the state’s motion for additional time for hearing a pretrial detention motion and released the defendant on his own recognizance in accordance with Supreme Court Rules.
"Pre-trial detention motions may be filed at any time and the case is being reviewed now for that purpose."
"We have not yet received an intake on the case from law enforcement. An intake is essential for us to determine whether filing a pretrial detention motion in the case is legally justified or practically prudent.
“At this point we do not have sufficient information upon which to make that determination. Keep in mind, pretrial detention motions may be filed at any time. It is also worth noting that when an officer uses deadly force in the line of duty, there is a separate inquiry into that action.
“A scenario can exist where an officer is completely justified in the use of deadly force, and the state declines to file a pretrial detention motion on the suspect against whom deadly force was justifiably used. The two are not mutually exclusive.
“Legal processes exist for each and parties thereto deserve to have those processes completed apace, and not in the court of public opinion."
