Tabitha Clay is an investigative journalist with a focus on criminal justice and policing. She previously reported for the Rio Grande Sun.

David Aguilera in the back seat of a Chaves County Sheriff's car moments before he was killed by deputies.

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*Editor’s Note: This story contains expletive language and video from the officer’s lapel cameras that may be disturbing.

Chaves County Sheriff’s Office is under investigation for the second time in less than a year for shooting and killing an unarmed man at close range. Now the county is facing another civil lawsuit and the deputies involved may be criminally charged for the shooting.

On March 27, CCSO Deputies Joshua McKelvey and Benjamin Conklin were called to Sideline Dairy in Lake Arthur near Roswell in reference to a disorderly subject. Employees of the dairy say David Aguilera was attempting to ride a tractor, but they took the keys away from him and waited for deputies to arrive.

Upon arrival, Deputies Joshua McKelvey and Benjamin Conklin and Cody Smothermon arrived and arrested Aguilera after wrestling him to the ground and tasing him five times.

In video obtained by The Paper. deputies can be heard yelling at Aguilera as he lies on the ground. “You want to be shot?” McKelvey asked Aguilera. “No,” Aguilera told him, but less than an hour later he was shot to death by McKelvey and Conklin.

Who Was David Aguilera?

Aguilera’s girlfriend, Camille Ortega, said he was a good father and a great partner that worked in the oil fields and provided for not only his two biological children but her other four children as well. Now she has questions, as do their children.

David Aguilera at his job in the oil fields. Photo courtesy of the family.

“I think the kids have questions, and they’re hurt because David was everything to his kids,” Ortega said. “He was very active with them. He did everything with them, he did everything for them.”

Ortega said that he spent his free time with the kids playing sports, or having water balloon fights. He was a family man, and their extended family was always around and part of their lives.

“If he saw somebody sitting there needing money, he would either bring them money or go buy them food,“ Ortega said. “He was always helping anybody who asked him for help. He was always looking out for people. He really had a big heart.”

Now, Aguilera’s family is facing a new life without him.

“[The deputies] flipped our world upside down. They took him away from us; leaving us not knowing how to move on.” Ortega said. “I depended on him, and now I’m a single parent with six kids. Six kids are hard to raise, it’s very hard.”

The Shooting

The details of the shooting, which was investigated by the Roswell Police Department (RPD) with assistance from the New Mexico State Police (NMSP), are harrowing.

Deputy McKelvey was the first to arrive at the dairy. When he got there he saw employees surrounding Aguilera.

After asking if he needed a ride somewhere, McKelvey told Aguilera to turn around and put his hands behind his back. “Yes sir,” Aguilera said, and turned, with his hands behind his back.

Then as McKelvey attempted to handcuff him, Aguilera tried to pull away. That’s when McKelvey told Aguilera to “cuff himself.”

Lapel camera video from Chaves County Deputy Benjamin Conklin

McKelvey continued to insist that Aguilera handcuff himself behind his back, all while Aguilera backed away, asking what he’d done wrong.

“What did I do?” Aguilera asked McKelvey repeatedly while ignoring McKelvey’s commands to handcuff himself.

“I’m not going to ask you again motherfucker, put your goddamn cuffs on right now,” McKelvey said as recorded by his lapel video. “You’ve already done fucking fought me and all I was trying to do was temporarily detain you, now put your cuffs on before I fucking tase you.”

Aguilera continued to back or walk away.

“What’s up with that laser,” Aguilera asks, about the taser’s laser sight which can be seen on his shirt.

“You’re about to find out what’s up with that laser, put your goddamn cuffs on right now,” McKelvey says as Aguilera continues to back away. “Put your cuffs on now,” McKelvey says as he starts to walk closer to Aguilera.

Then, without any additional warning, McKelvey tased Aguilera.

“Stop moving,” McKelvey tells him and tases him a second time, as Aguilera screams.

Aguilera says, “I’m sorry man,”

“I’m sorry too,” McKelvey yells, still several yards away from Aguilera who is lying prone on the ground. “I fucking begged you, I didn’t want to have to do that. Put your goddamn cuffs on right now.”

“No, I’m going home,” Aguilera said as he continued to scoot and crawl away. “No, please don’t, please.”

“I’m going to ask you one more time, to put those handcuffs on,” McKelvey said. “If you don’t put those handcuffs on, you will be tasered again.”

Approximately 11 minutes after McKelvey first arrived, Aguilera was handcuffed and secured under Conklin’s body weight. He had been tased five times.

Conklin and McKelvey were shortly joined by Deputy Cody Smothermon, who helped walk Aguilera to the back of Conklin’s vehicle. When Aguilera asks what he’s done, one of the deputies can be heard saying, “I don’t know, what have you done?”

Deputy lapel camera video courtesy Chaves County.

McKelvey searched Aguilera, and then the deputies forced him into the back of Conklin’s Ford Explorer.

That’s where the video stops. On all three deputies’ cameras.

Yet somehow, despite being handcuffed, searched, and placed into the back of Conklin’s vehicle, several minutes later when the video resumes, Aguilera is wearing only one handcuff in the back seat.

McKelvey’s video then shows Conklin on one side of the backseat, trying to handcuff Aguilera. McKelvey was standing on the other side. Both doors were open.

Conklin then tells Aguilera to lean forward, which he does, and then somehow, whether he was pulled from the car, or got out on his own, Aguilera was out of the back of the vehicle and running. Conklin’s lapel camera doesn’t clearly show how Aguilera got out of the car.

Again, after several minutes, the video starts again, and it’s unclear how, but Aguilera is now in the driver’s seat of McKelvey’s sheriff’s vehicle.

When McKelvey caught up to him, he climbed into the passenger seat. Both Conklin and McKelvey yelled that they were going to shoot Aguilera.

As Aguilera continued to sit in the front of the vehicle, McKelvey told Conklin to get out of the way.

Conklin backed away and McKelvey fired, then Conklin fired. In total, the two deputies fired five times at Aguilera.

Moments later, Aguilera can be seen, face down on the ground, fully handcuffed, as deputies began to apply some dressing to his back. Then, they turned him over and tore his shirt from his body, and started CPR.

According to a statement given to Roswell Police, Smothermon hid behind a large metal dumpster during the shooting. After the shooting, Smothermon can be seen in the video, calmly watching his fellow deputies giving CPR.

Officer lapel camera footage courtesy Chaves County.

There’s no clear way to know what happened in the moments between when Aguilera was put into the back of Conklin’s sheriff’s unit and when he was shot to death because none of the deputies’ body cameras were recording.

Conklin told RPD investigators that Aguilera had a pipe or tire iron in the back of the squad car after they detained him and put him in the back of the car. Conklin also told investigators that his body camera did not activate and that it malfunctioned.

According to Conklin, later, after Aguilera got out of the back of the car and into the front of McKelvey’s car, both he and McKelvey were being “dragged” as the vehicle idled forward. He told investigators that he was terrified and in fear for his life and the lives of the other deputies.

There may be no way to know what really happened during the moments between Aguilera’s arrest and his death, because there simply isn’t any video footage, and RPD’s report doesn’t say anything about a pipe or tire iron being reported by McKelvey.

A Sheriff’s Department Plagued With Problems

As The Paper. previously reported this month, the Chaves County Sheriff’s Department has come under fire for hiring and training practices, as well as being sued by the American Civil Liberties Union and Civil Rights Attorney Laura Ives for killing an unarmed man last summer in a front yard.

While multiple sources in Chaves County have said there may be criminal charges filed against the deputies, 5th Judicial District Attorney Diana Luce declined to answer any questions about possible indictments or further action in the case.

In a press release dated April 19, Luce said, “Ultimately, deputies fired their weapons and David Aguilara (sic) died as a result of gunshot wounds. A multi-agency team of law enforcement officers are investigating this officer-involved shooting. Upon completion of the investigation, the District Attorney’s office will independently review all evidence related to the incident. The District Attorney’s office must follow legal and ethical duties to ensure the integrity of the investigation by ensuring that information regarding the event that could compromise the investigation is not released.”

Multiple sources have suggested that Luce may intend to seek a grand jury indictment, but is waiting on a toxicology report for Aguilera, among other things.

However, New Mexico State Police, which assisted with the investigation, did confirm that their portion of the investigation is closed and that the report had been forwarded to the district attorney, and was pending while awaiting the outcome of toxicology reports, NMSP Lt. Mark Soriano said yesterday.

If the deputies are criminally charged, it’s likely that Luce will consider the case a conflict of interest since her office works closely with local law enforcement in its pursuit of justice, and it’s likely that the personnel from her office have worked with both deputies in the past.

Attorney General’s Office Director of Communications Jerri Mares said earlier in the week that Luce hadn’t contacted them to take over the case.

None of the three deputies had been involved in an officer-involved shooting until this incident. For now, it seems that legally, both Conklin and McKelvey are free to patrol Chaves County, conducting all their usual law enforcement activities. Although they were placed on administrative leave for a period of time, both returned to work in April. It’s unclear now whether they are, or are not, back on patrol.

Attorney Shane Maier who represents Aguilera’s family says that if the deputies are back out on patrol, that’s problematic.

“You have these police officers that have a lot of power and authority over people and access to these weapons, and it looks like in this case…that they violated those duties and took someone’s life when that wasn’t appropriate,” Maier said. “They committed murder, and the idea that these sheriff’s deputies are still out there with their firearm, with the power over people if they’ve already committed murder, yeah, that is problematic. What’s to stop them from doing it again?”