This story was originally published by New Mexico In Depth.
Calls for justice for a 17-year-old Mescalero Apache boy killed by a sheriff’s deputy in June rang out Sept. 7 as the sun disappeared behind the hills bordering the tribe’s reservation in southern New Mexico.
Drivers sped past, some honking to show support for the dozens of people walking along U.S. Highway 70 to honor Elijah Hadley. People helped older relatives make their way, and mothers pushed their children in strollers.
Grief and outrage over Hadley’s death hung over the crowd as they traveled about a mile from a nearby church to the spot on the highway median where Hadley was killed.
The teenager was making that same walk on June 25 when Otero County Sheriff’s Deputy Jacob Diaz-Austin was dispatched to conduct a welfare check on him. Diaz-Austin ordered Hadley to show his hands, then shot Hadley just as he was dropping what turned out to be an airsoft pistol — a replica gun that’s designed to shoot non-metal rounds.
“It’s just a BB gun,” Hadley screamed, falling to the ground.
For three minutes after the initial barrage of bullets, Hadley lay on the ground, covered in his own blood, as Diaz-Austin kept his distance. At one point, Hadley said to Diaz-Austin, “You’re going to kill me” and “I’m going to fucking die,” the deputy told a state police agent during a July 1 interview.
When Hadley rolled onto his stomach, Diaz-Austin shot him at least a dozen more times.
Hadley died at the scene.
Valerie Vanaya Espinoza (Mescalero Apache) said she happened to be driving by the site of the shooting, in between Bent and Mescalero, the morning after and knew something was wrong when she saw investigators working.
“He complied in every way,” Espinoza told New Mexico In Depth on Sept. 7. “He did what he was supposed to.”
The fatal shooting has sparked protests in nearby Alamogordo and demands for Diaz-Austin to be criminally charged. Some have also called on Otero County Sheriff David Black to resign through an online petition that had just over 1,000 signatures as of publication.
A brutal death on a dark highway
Hadley was making his way along the highway, heading toward the Mescalero Apache reservation when a driver spotted him and called 911 to report a person walking in the median.
The caller later told a New Mexico State Police agent she was concerned for the person’s safety, and that’s why she alerted law enforcement, according to the agency’s investigative report obtained through a public records request.
Diaz-Austin responded shortly before 11 pm.
Dashboard camera footage shows Diaz-Austin pull into the median behind Hadley, who turned around and started walking toward the patrol vehicle. Diaz-Austin reversed, telling Hadley to “stop right there.”
“You alright? What’re you doing?” Diaz-Austin said.
Hadley put a hand up to shield his eyes from the vehicle’s lights. His other hand was concealed by a shirt draped over his arm.
“Let me see your other hand, bro,” Diaz-Austin told Hadley. “Let me see your other hand, dog.”
Hadley reached for the airsoft pistol in his waistband, which had been hidden by the shirt. Holding it upside down by the handle, he dropped it.
As the pistol hit the ground, Diaz-Austin fired four times, the footage shows.
Hadley clutched his stomach and fell down, screaming repeatedly, “It’s just a BB gun.”
With his gun still pointed at Hadley, Diaz-Austin said, “Let me see your hands.” Body camera footage shows Hadley lying on his back with his arms spread out as Diaz-Austin gave the command.
“Shots fired,” Diaz-Austin told dispatch.
A minute after shooting Hadley, Diaz-Austin ran to the other side of his vehicle and picked up a medical kit. But Diaz-Austin did not render aid. Nor did he approach Hadley to move the airsoft pistol away.
About two minutes later, Hadley rolled onto his stomach.
“Don’t go to that gun,” Diaz-Austin yelled a moment before starting to shoot Hadley again, firing at least a dozen bullets before pausing to reload his gun and then firing a few more bullets.
“Where’s my closest people?” Diaz-Austin asked the dispatcher, adding that he couldn’t see the gun or Hadley’s hands.
Diaz-Austin asked if he should render aid.
“He says if you can’t see the firearm, just to stand by,” the dispatcher replied.
The dispatcher asked where Hadley was shot. Diaz-Austin said, “In the face, in the chest, his arm, and I believe in the back of the head, like the top of his head area.”
Seven minutes after the last round of bullets, another deputy arrived and the two approached Hadley. Diaz-Austin threw the airsoft pistol to the side and rolled Hadley onto his back.
“I got no pulse anywhere,” Diaz-Austin said.
Later that night, as paramedics and more officers arrived, Diaz-Austin told the other deputy, “I was just about to turn around too because I didn’t see him. I was literally turning around right there and then I saw a glimpse of him.”
‘Apache lives matter’
In the months since Hadley’s death, people who knew him have taken to social media to share who he was.
He “loved our Mescalero Apache culture so much he participated in singing and dancing with our late uncle,” Hadley’s sister wrote in a TikTok post. In the winter, he would chop wood to get the house warm for his family before going to school, she added.
A woman who worked at the school Hadley attended wrote on Facebook he was “reserved and respectful.”
A friend wished she could have one more conversation with Hadley to tell him what a good artist he was and how much his family loves him, she wrote on TikTok.
Saturday’s memorial walk for Hadley began in the parking lot of a church a little over a mile away from where he was killed. His family and friends passed out water and glow sticks.
“It’s really impacted me a lot because I have grandchildren that are that age,” Mimi Fossum (Mescalero Apache) said. “My grandson knew him, and it’s just tragic, horrible.”
Fossum has protested in front of the sheriff’s office in Alamogordo, about half an hour south of the shooting. She’s often been joined by Kristin Bryce and Danielle Testa.
The two friends aren’t tribal members, but when they saw a news story about the shooting and then a Facebook post about a protest, they felt compelled to attend. Bryce said she and Testa watched a portion of the dashboard camera footage on TV and “it was probably the worst thing we ever did, was watching on a big screen.”
“He did everything he could have, that any 17-year-old would have thought to do,” Bryce said.
After taking each other’s hands in prayer, attendees set off walking on the side of the highway. The spot where Hadley was killed slowly came into view, where his loved ones had put up a cross bearing his name and who he was to them: a son, a brother, and an uncle.
With the last bit of daylight fading, community members gathered around the memorial and took turns sharing their feelings about Hadley’s death. Many in the crowd wept as they listened. Others mostly expressed anger toward the deputy.
Patricia Ramos said she’s not a tribal member but was born and raised in Mescalero and knew Hadley since he was a little boy.
“When I saw that video of him being shot, I couldn’t stop crying,” Ramos said. “To see something like that happen to him, not only shot four times and wasn’t even rendered aid. … He didn’t deserve to die like this.”
Ramos said Diaz-Austin “is able to be home with his family and not sitting in jail, not behind bars.”
“Apache lives matter and your voice counts. We didn’t stand tall this long just to be pushed out like we’re nothing,” one woman said, adding that if Hadley wasn’t Indigenous, Diaz-Austin would’ve already been criminally charged.
What comes next
Diaz-Austin graduated from the law enforcement academy in May 2021 and had no law enforcement experience prior to joining the Otero County Sheriff’s Office, he told New Mexico State Police during the July 1 interview.
The Albuquerque Journal reported on Aug. 29 that Diaz-Austin was on paid administrative leave.
Black, the Otero County sheriff, wouldn’t confirm whether Diaz-Austin remained on leave Sept. 9, writing in an email the administrative leave status of any sheriff’s office employee “is the result of an internal inquiry being conducted. This procedure could result in matters of disciplinary action, precluding the release of this information at this time.”
On Thursday, Albuquerque-based attorney Chris Dodd who is representing Hadley’s family, said it’s “significantly concerning” that the public doesn’t know “whether an officer who shot and killed a 17-year-old on a welfare check is currently on administrative leave or back on the streets or terminated.”
State police completed an investigation of the shooting in July. The agency acts as a fact-finder and doesn’t determine whether a police shooting was justified.
Citing potential conflicts of interest, the Twelfth Judicial District Attorney’s Office, which serves Otero and Lincoln counties, handed the case off — for review and possible criminal charges — to the Bernalillo County District Attorney’s Office, led by Sam Bregman.
Bregman is no stranger to fatal law enforcement shootings. He represented then-Albuquerque police officer Keith Sandy, who was charged with second-degree murder in the 2014 fatal shooting of James Boyd, a man experiencing homelessness in the Sandia foothills. In 2016, a judge declared a mistrial after the jury was unable to reach a verdict.
More recently, Bregman represented the family of Amelia Baca, a 75-year-old who was killed in April 2022 by a Las Cruces police officer responding to a mental health call from Baca’s family. The city settled a $3 million lawsuit with Baca’s family in July 2022, according to the Las Cruces Sun-News.
Dodd expressed the same hope as many of the tribal and non-tribal members who attended the Sept 7. memorial walk.
“I hope that this officer gets charged,” Dodd said. “It looks like the kind of situation where there certainly has been wrongdoing. But I’m not a district attorney and that’s not my call to make.”