An Española Police Department officer who initiated a pursuit April 29, and was subsequently placed on administrative leave, has not been charged despite providing false information about the incident to the Rio Arriba County Sheriff's Office.
Department Officer Yvonne De La O claimed David Mendez shot at her during a pursuit, but it was later determined that he did not have a gun, and there was no gunpowder residue on him or inside the car he used to flee from police.
De La O wrote in a supplemental report that she was called to perform a welfare check after someone reported a man sleeping in a car near the intersection of Middle and Lower San Pedro roads.
She wrote that she engaged her emergency lights prior to stopping her patrol unit, and then Mendez fled from the scene.
Mendez and the passenger in the vehicle, Desiree Gonzales, said that when the police car pulled up behind them, the emergency lights were not activated.
If the emergency lights were not activated, then Mendez had the legal right to leave the area, because at that point, what De La O was attempting would be a consensual encounter.
Consensual encounters are defined as when an officer uses no commands, force or emergency lights, according to a February 2016 Police Magazine article about detention.
Officers have different levels of interaction with the public as defined by the U.S. Supreme Court including: arrests, in which an officer has probable cause; detentions, in which an officer has reasonable suspicion; and consensual encounters, where police use no commands or force, the article states.
“Unless you have reasonable suspicion that the person is involved in criminal activity, do not turn your consensual encounter into an unlawful detention,” the article states.
It is unclear what criminal activity De La O had reason to believe Mendez was involved in, since she did not know his identity at the time of the attempted contact, and was called to check on a man “sleeping in a car,” which by itself is not illegal.
“While I was getting down from my unit to make a driver side approach the silver in color Sedan took off at a high rate of speed,” De La O wrote.
Decision to pursue
It was then that De La O made the decision to pursue the car.
“Officer De La O was dispatched to a vehicle welfare check when she stated that the vehicle was taking off on her and was refusing to stop,” Officer Jerome Broyles wrote in a supplemental report.
Broyles wrote that Officer Cory Atencio asked dispatchers what the basis of De La O’s original dispatch was, and upon learning that it was for a welfare check, told dispatchers to cancel the pursuit.
“Immediately following Officer Atencio’s request (to cancel the pursuit), Officer De La O stated ‘Shots fired, Shots fired,’” Broyles wrote.
De La O wrote that as she pursued the vehicle, she saw Mendez throwing things out the window, and reaching into the backseat. She omitted being told to cancel the pursuit by Atencio in her report.
“Mr. Mendez was making movements, reaching into the back passenger seat of the vehicle,” De La O wrote. “At that time I heard approximately three to four gunshots coming from Mr. Mendez’s vehicle...I then observed the back window to the Sedan that Mr. Mendez was in shatter (sic). When I heard the shots I immediately feared for my life and was shaken.”
De La O was placed on administrative leave for three days, with pay, after being involved in what Department Deputy Chief Roger Jimenez called a “traumatic event,” during a phone interview following the incident.
Mendez and Gonzales agree that the window did shatter during the pursuit, but said that the window was actually already shattered, and held together only by tint. They said the window gave way during the pursuit when the car hit a bump in the road, but that there was never a gun in the vehicle and neither of them had fired at De La O.
De La O details the pursuit in her report, but is vague about the locations involved.
“Mr. Mendez proceeded southbound on Riverside Drive passing State road 106 and conducted multiple U-turns, onto oncoming traffic,” De La O wrote. “I continued to follow Mr. Mendez and Ms. Gonzales on North Riverside onto oncoming traffic.”
Mendez said De La O pursued to La Puebla, outside of city limits, before turning around and chasing him into oncoming traffic.
Policy violations endangered public
Throughout the pursuit, De La O violated multiple Department directives.
The motor vehicle pursuit directive states that an officer may initiate a high-speed pursuit when they have reason to believe the suspect poses a clear and immediate threat of death or serious injury to others, or poses a threat to the safety of others. The directive states the threat must have existed prior to the pursuit.
It is unclear what alleged threat Mendez could have posed after a 911 caller reported a man sleeping in a car.
The directive also states that an officer “shall not initiate or continue a high-speed pursuit when the immediate danger to the officer and the public created by the high-speed pursuit exceeds the immediate danger to the public if the occupants of the motor vehicle being pursued remain at large.”
When De La O initiated the pursuit, there was no reason to believe Mendez was a threat to himself or to the public, it was only after she initiated the pursuit, that she believed he had fired a gun, which means other officers involved in the pursuit did not violate any department directive.
De La O violated the directive again, when she decided to pursue Mendez into oncoming traffic, “when engaged in pursuit, officers shall not drive with reckless disregard for the safety of other road users,” the directive states.
The pursuit route traveled the length of McCurdy Road, at speeds of over 60 mph. Where portions of the road had posted speed limits of only 20 mph, and also passed through a school zone, although it is unclear if children were present at the time.
It is unclear whether De La O was aware of the pursuit directives and if those directives were included with part of her Department training.
Jimenez declined to comment on the pursuit, citing an ongoing investigation by the Rio Arriba County Sheriff’s Office into the incident.
The pursuit came to an end in Ohkay Owingeh and Mendez was arrested without serious injury. He was, however, tasered by Sheriff’s Office deputies. He said he was just thankful that he was not shot by officers acting on false information provided by De La O.
“They thought I had a gun, but I didn’t,” Mendez said. “I never shot at anyone.”