Jesus Rubio. (Courtesy photo)
The uncle of a Las Cruces man fatally shot in January by New Mexico State Police is asking a state judge to compel the Department of Public Safety to release records about the incident.
Martin Beltran, of El Paso, on Monday filed a petition for writ of mandamus in First Judicial District Court in Santa Fe, alleging that the State Police records custodian violated the state Inspection of Public Records Act by refusing to release public records related to the Jan. 6 shooting death of his nephew Jesus Rubio.
That shooting occurred while Rubio, of Las Cruces, was driving to his sister Yesenia Avila’s home in Hobbs to download a video game, according to the petition. Rubio and Avila shared an interest in playing video games, Albuquerque-based civil rights attorney Laura Schauer Ives told Source NM.
State police reported the incident the following day in a news release, which said two officers pulled Rubio over for a traffic stop, at which point Rubio “ignored officers commands,” exited the vehicle and, ultimately “raised his arms as if pointing a firearm as he walked towards the officers.”
Two State Police troopers then each fired “at least once” at Rubio, killing him, the news release said.
State Police also published a single frame of a police vehicle dashcam video, depicting what they say is Rubio raising his arms, pretending to point a gun at police. Police did not ultimately find a firearm on Rubio or in his vehicle, according to the release.
Beltran’s attorneys say the information released by the police does not tell the full story.
“While NMSP released a portion of responsive video footage to the media the day after officers shot and killed Jesus, his family still awaits the production of public records to understand the context of the incident,” wrote Schauer Ives and co-counsel Andrew Pavlides.
A spokesperson for State Police did not respond to a request for comment sent via email on Tuesday morning.
Rubio died at Covenant Hobbs Hospital, according to his obituary. He was 28.
In a written statement to Source NM on Tuesday, Rubio’s family said he had a unique gift for bringing joy into any room and was always the one making others laugh with his goofy sense of humor and playful spirit.
“Anyone close to him will tell you: he was deeply loving, endlessly caring and someone whose presence made the world a little brighter,” the family said.
Beltran on Jan. 7 filed a public records request with NMSP in an effort to better understand what led to Rubio’s death, and to determine whether to sue the police agency, according to the petition.
State Police on Jan. 23 determined Beltran’s request to be “over burdensome,” and then over the next five months asked for more time, missing its own self-imposed deadlines without explanation, according to the petition.
As of Tuesday, State Police had not turned over any responsive records nor offered any explanation for withholding them, Schauer Ives said.
Court records show a Fifth Judicial District Court judge on Jan. 21 appointed Beltran as the representative of Rubio’s wrongful death estate, which is a necessary first step to investigate and pursue a wrongful death claim. Rubio’s family cannot decide whether to pursue such a claim because they don’t have information about what happened and why, Schauer Ives said in a phone interview.
“Under these circumstances, families are left in the dark,” she said. “Unlike any other family members of a crime victim, they don’t have the basic information about what happened to their loved one and why.”
The New Mexico Supreme Court in July 2020 ruled that DPS must produce records, even when a criminal investigation is ongoing. That case stemmed from the police killing of James Boyd in 2014 in Albuquerque.
Schauer Ives said Tuesday that this is the third lawsuit her firm has filed against the state Department of Public Safety this year for allegedly circumventing the high court’s ruling by claiming that a records request is overly broad or burdensome.
“They are delaying release of records that should be public and should be provided to family members to find out the very basic facts of why their loved one was killed by a police officer,” she said.
Amanda Lavin, legal director at the Albuquerque-based nonprofit New Mexico Foundation for Open Government, told Source NM on Tuesday this case could be similar to others in which DPS is accused of unlawfully deeming a records request “overly burdensome or broad” in order to avoid having to offer a specific justification for withholding records. She pointed to a recent example of DPS refusing to turn over records from their investigation into the death of Rio Arriba County Sheriff Billy Merrifield to two local newspapers.
“What it seems like DPS is doing is that they’re using that excuse, that a request is overly broad and burdensome, when the reality is they have an ongoing investigation, they don’t want to give records, but they know that’s not a legal excuse,” Lavin said.