Lawsuit accuses Chaves County deputies of using excessive force

Fatal shooting case also alleges training, supervision failures

Family members of a man shot and killed by Chaves County sheriff’s deputies last year have filed a lawsuit alleging the officers used excessive force.

David Aguilera, 34, was fatally shot in the driver’s seat of a patrol car following a lengthy standoff in which deputies tried to handcuff and arrest him. He died at the scene.

The 1st Judicial District Court lawsuit — filed on behalf of Aguilera’s longtime partner and their children — also alleges the Chaves County Sheriff’s Office and the New Mexico Law Enforcement Academy failed to properly train and supervise the deputies. The suit seeks unspecified damages.

Email messages sent to Chaves County Sheriff Mike Herrington and officials at the state Law Enforcement Academy were not returned.

Deputies were called March 27 to the Sideline Dairy in Lake Arthur, just south of Roswell, where dairy employees alleged that Aguilera was attempting to ride a tractor, according to the lawsuit.

The employees took the tractor’s keys from Aguilera and waited for deputies to arrive, the suit said.

Lapel camera video obtained by the Journal shows that Aguilera escaped from the back seat of the patrol car and ran from deputies.

After a short foot pursuit, Aguilera returned to the patrol car and sat in the driver’s seat, while deputies Benjamin Conklin and Joshua McKelvey stood beside the open front doors of the vehicle, video shows.

The deputies ordered Aguilera to exit the patrol car. Moments before the shooting, McKelvey shouted commands at Conklin to move, then fired four gunshots at Aguilera, the video shows. Conklin fired additional gunshots.

The suit identifies as defendants McKelvey, Conklin and a third deputy, Cody Smothermon, who was also at the scene.

An investigation into the shooting was conducted last year by the Roswell Police Department and New Mexico State Police.

Fifth Judicial District Attorney Dianna Luce turned over the case to the state Attorney General’s Office to determine whether Conklin and McKelvey should be prosecuted.

The attorney general’s office is continuing its review of the case and no decisions have been made whether to file charges, said Lauren Rodriguez, a spokeswoman for Attorney General Raúl Torrez.