Hobbs Is Roiled by Shooting of Latino Man by Deputy. Witness Say Police Lying Again

• Originally published by the Albuquerque Journal on February 6, 2005 [here]

By Rene Romo
Journal Southern Bureau

    HOBBS— Near dusk on Wednesday, Jan. 19, city police officer Reid Gunter spotted 23-year-old Francisco Barva riding a mini-motorcycle near the intersection of Thorp and Gypsy on the city's impoverished south side.
    Just an hour earlier, Gunter and another officer had approached Barva and several friends at a house on the 300 block of Gypsy Street and warned them the scooter was not "street legal," according to a police report. The officers warned the men they would be cited if they were caught riding the bike on the street again.
    Seeing the lanky Barva, a Mexican immigrant who struggled with English, riding the minibike again, Gunter, 24, activated his patrol car lights and pursued Barva onto Gypsy, trying to make him stop.
    A few chaotic minutes later, Barva, who was carrying a gun, lay on the street dying. Gunter had shot him in the head.
    In a city where the police department has been subjected to numerous lawsuits in recent years alleging discriminatory treatment of blacks and Hispanics, the case has stirred feelings of mistrust and raised questions about how the case is being handled.
    At least four people who say they witnessed the shooting have questioned the preliminary version of events from law officers— that Barva first pointed a handgun at Gunter before sustaining the fatal shot.
    The police shooting is being investigated by an outside agency: the Lea County Sheriff's Department.
    But, sensitive to concerns that the sheriff's department, which employs several former Hobbs police officers, may not be impartial enough, Hobbs Police Chief Ken Bohn on Jan. 27 sent a letter to the U.S. Justice Department's Civil Rights Division in Washington, D.C., asking for an additional investigation of the case.
   
Interview delays
    But some skeptics have already raised questions about how the case has been handled by local law enforcement.
    While the investigation was only a day old, and before all eyewitnesses had been independently interviewed, Bohn publicly said he believed Gunter had properly followed protocol leading to his use of deadly force.
    Meanwhile, the four witnesses who said they did not see Barva threaten Gunter with a handgun were not interviewed by sheriff's detectives until nine days after the shooting.
    According to the Lea County Sheriff's Department, Barva tried to flee Gunter when he crashed the minibike. The two men struggled while the officer attempted to subdue the fleeing Barva.
    Gunter used verbal commands, physical restraints and chemical spray before drawing his weapon and shooting Barva, sheriff's officers have said.
    Gunter said he was "staring straight down the barrel of (Barva's) gun" when the officer pushed Barva away and shot the suspect, Lea County Sheriff Keith Rice said in a telephone interview.
    But two men, friends of Barva, who said they watched the unfolding confrontation from behind a fence across Gypsy Street, said Barva's gun lay on the ground out of reach when Gunter fired the fatal shot.
    "They (investigators) are just trying to get that police officer off for killing him," said one witness, 23-year-old Michael Smith, a Gypsy Street resident who said Barva lived with his family. "That's not right."
    Hobbs police reports state that Barva's loaded handgun lay beside his body, tangled in his shirt. Barva had not fired his weapon, police said.
    Gunter fired two rounds during the struggle, hitting Barva once in the head, according to the sheriff's department.
    Another friend, Rick Garza, 40, said Barva cried out after the first shot and clutched his arms to his upper chest area when Gunter fired a second shot as he backed away.
    Garza, still distraught over the shooting, said he never saw Barva point a weapon at the officer. "No, sir," Garza said. "He (Barva) never had it in his hand's possession."
    Two girls, the 10- and 12-year-old daughters of Smith's live-in girlfriend, also said in recent interviews they never saw Barva point his gun at the officer. The girls said the gun slid away from Barva before he was shot.
    The four witnesses also disputed accounts that Gunter used pepper spray in an attempt to subdue Barva before firing his weapon. Police incident reports say, however, that Gunter complained right after the shooting that his face was burning from chemical spray.
    Sheriff's investigators finally interviewed the four witnesses on Jan. 28. Three of the witnesses were previously interviewed by Hobbs police, though the investigation had been turned over to the sheriff to avoid the appearance of a conflict of interest.
   
'While it was fresh'
    Smith said that, immediately after the shooting, he was taken to the Hobbs Police Department and interviewed by police Detective Rodney Porter. Smith admitted he was uncooperative and feigned ignorance about the shooting because, he said, he thought it was improper for police to investigate an officer's use of deadly force.
    Sheriff's Deputy Ken Ragland, who joined the department after being fired by the Hobbs Police Department in August 2001, questioned Gunter at police headquarters after the shooting.
    According to a police report, Ragland also asked Porter to assist him by conducting the initial interviews of two other witnesses— a mother and daughter who saw part of the shooting incident.
    Rice said having a police detective interview witnesses on behalf of the sheriff's department didn't compromise the investigation's integrity.
    Rice also said his detectives were stretched thin at various locations the night of the shooting, so police were asked to assist. Sheriff's investigators planned eventually to conduct their own interviews of the witnesses, he said.
    "We were trying to do the investigation while it was fresh," Rice said. "Having a Hobbs PD officer conduct the investigation was just trying to get the information."
    A Hobbs police sergeant assigned five detectives to work with five sheriff's deputies on the night of the shooting, according to another police report.
    Gunter was put on administrative leave pending the outcome of a police internal affairs investigation and the sheriff's investigation. He couldn't be reached for comment.
    Police Cmdr. Donnie Graham said Gunter told administrators he didn't want to be contacted by the news media.
    On Jan. 27, the Hobbs police chief formally asked the U.S. Justice Department to conduct an additional outside criminal investigation of Gunter's shooting. Three of four sheriff's department investigators, including Ragland and lead investigator Sgt. Mark Hargrove, are former Hobbs police officers, as is the sheriff.
    "While I don't see the problem, I agree there could be the appearance of one," Bohn said. "I want to make sure this doesn't create more problems with the community."
   
Public confidence
    Because of the high-profile civil suits lodged in recent years against Hobbs police by minority residents, the city must go the extra step to restore public confidence, City Manager Dan Dible said.
    "No matter what community you're in, a police shooting puts your public confidence on the line," Dible said. "In our case, already being under a stipulated agreement, having a, let's say, highly documented history of law enforcement race issues that have gone on ... it's more incumbent on us to take the extra action that we did today."
    A 2001 stipulated agreement in a 1999 class-action lawsuit filed on behalf of black residents against the Hobbs Police Department required police to compile race-based data on arrests, investigative detentions and officers' use of force for three years. A monitor, plaintiffs and police could use the data to identify potentially discriminatory conduct.
    The agreement also required police to enhance the public complaint process and to improve officer training.
    After plaintiffs later complained that police treatment of Hobbs' black and Hispanic residents had not improved, a federal judge in 2004 extended the department's self-monitoring for an extra year.
   
Past problems
    Both men on that fatal collision course the evening of Jan. 19— the officer and the man he shot— have had their share of problems in the past.
    For Barva, there had been several run-ins with police. And Gunter has been the target of several citizen complaints.
    Hobbs and Portales police issued at least seven citations to Barva since October 2003, according to a sheriff's department news release.
    Barva was released from Hobbs' city jail Dec. 28 after spending 20 days there for pleading guilty to charges of misdemeanor shoplifting, resisting and evading an officer and concealing his identity.
    Hobbs police arrested Barva Dec. 8 for shoplifting $31 worth of merchandise from a local Family Dollar store. Barva dropped off the items at his girlfriend's mother's apartment, then fled police on foot.
    An officer chasing Barva said he saw the suspect toss a shiny object as he ran from police after the Dec. 8 shoplifting incident. Three days later, a local resident discovered a .22-caliber handgun believed to be Barva's in his front yard.
    But a fingerprint analysis was not able to match the gun to Barva, according to reports.
    Gunter has also found himself under scrutiny for his conduct as a law officer.
    He has been the subject of three citizen complaints alleging excessive use of force since January 2002. Internal investigations cleared him in all three cases, Bohn said.
    Two of those cases involved using physical force to subdue suspects and one involved pointing a weapon during a traffic stop at motorists who reportedly shot at citizens.
    But, citing the confidentiality of personnel issues, Graham of the police department declined to give out information concerning any other citizen complaints— those not involving use of force— against Gunter.
    But Gunter was one of five Hobbs police officers highlighted in 2003 court documents filed by plaintiffs in the follow-up to the 1999 class-action discrimination lawsuit.
    The court documents said that Gunter was one of five officers who, in the third and fourth quarters of 2002, accounted for 40 percent of all the times that Hobbs officers used force against the public.
    "This is ... a disturbingly high figure for only five out of approximately 80 HPD officers," according to a footnote in the document filed by attorneys Daniel Yohalem and Richard Rosenstock.
    Gunter alone was involved in 22 use-of-force incidents— or 5.1 percent— of the 427 total force cases generated by the department's roughly 70 officers during 2003 and 2004, police records show.
    In Gunter's 22 use-of-force cases in the past two years, he drew or pointed his firearm in four cases, according to HPD. Gunter did not discharge his weapon in those cases.
    While formal investigations of the incident continue, people close to Barva are still stunned.
    "It's pretty crazy," said 19-year-old Ruben Castillo of the shooting of his friend. "All that over a little bike."