Serving the High Plains
Serving the High Plains
A rural Tucumcari man fatally shot during a confrontation with sheriff’s deputies this spring was legally drunk, according to investigative reports from state police.
The local district attorney also determined weeks later that Sheriff Dennis Garcia would not be charged for killing 77-year-old Aubrey James Osteen during the May 14 shootout, stating the use of force by the sheriff “was reasonable and necessary to preserve life” and was justified in defending himself and others.
Those details were revealed in 64 pages of reports by New Mexico State Police, which investigated the shooting. The Quay County Sun obtained the reports through an open records request.
Initial calls
The morning of May 14, the sheriff’s office received calls that Osteen was brandishing a firearm at a home healthcare worker and an emergency medical technician at Osteen’s home at Quay Road 49 west of the settlement of Quay, about a dozen miles south of Tucumcari.
Home healthcare worker Dana Mackey reported that Osteen was not acting normally and slurring his words, adding his face was “messed up” and he appeared to be experiencing stroke-like symptoms.
Mackey also told investigators that Osteen had been drinking vodka since 5 a.m., and she believed he was drunk.
In Garcia’s body camera footage, Mackey told Osteen he “does not need to be drinking and that it makes him a different person,” adding he needs to “stay away from the vodka.”
Mackey told officers that Osteen had never been drunk in previous times she’d treated him at his home.
Tucumcari EMT Zachary Kardokus said Osteen initially was compliant while he and Mackey assessed him until they asked questions to gauge his mental health. Kardokus said the questions seemed to agitate Osteen.
Mackey told a deputy while Kardokus was caring for Osteen, he grabbed her arm, and Kardokus said to let her go.
“Mr. Osteen brandished a firearm and pointed it at EMS, stating, ‘I’ll shoot you.’ EMS was able to grab the gun from Mr. Osteen before he was able to use it,” the report stated.
They took several of Osteen’s firearms from the home before deputies arrived. One EMT later said four firearms had been removed.
The shooting
Garcia, Undersheriff Russell Shafer and Deputy Larry Cooksey began to talk to Osteen, seated on a stool in his kitchen.
Body camera footage from the officers, as described in NMSP reports, provided many details of what happened next.
Osteen denied pulling a gun on EMTs, saying: “If the ambulance crew knew I had pulled a gun, they would be dead.”
Osteen then asked about the vest Garcia wore, stood to say “Bulletproof vest … it’s going to be bulletproof,” then sat back down on a stool.
Osteen told Garcia to “get the hell out of my house.” Garcia said he wasn’t leaving yet, as deputies still were investigating his pulling a gun on medical staff.
Osteen then pulled a gun — still in its cloth holster — from under a table, pointed it at Shafer, then shot Garcia in the chest “at very close proximity,” the report stated.
Shafer said in an interview with NMSP he didn’t immediately recognize that Osteen was pointing a gun because of the holster still on it until Osteen shot Garcia.
Garcia said in an interview with state police he saw one of Osteen’s arms come down and believed he was using it to balance himself on the stool. Osteen then brought his arm up from under the table, and Garcia noticed cloth material being brought up, as well.
“When he realized it was a cloth gun holster, it was too late, and Mr. Osteen fired and shot him,” the report stated.
Asked by an investigator about the incident, Garcia said “it happened so fast that he believes he took Mr. Osteen’s age and injuries as a lesser threat. … He didn’t think Mr. Osteen would do this.”
The force of the bullet from Osteen’s gun knocked the body camera off Garcia’s chest.
Shafer tried to wrestle the gun from Osteen.
“Undersheriff Shafer was in fear for both his and Sheriff Garcia’s lives when he saw Sheriff Garcia get shot,” according to an NSMP interview with Shafer.
Garcia said he felt pain in his lower chest from the bullet’s impact with the bulletproof vest. He later was treated for bruising at Trigg Memorial Hospital in Tucumcari.
According to body camera footage timestamps, Garcia returned fire with his gun four seconds later, striking Osteen in the neck, head, chest and wrist. Osteen was given medical treatment almost immediately, but he died at the scene.
Garcia told investigators that Osteen “had a past for pulling guns on people around his residence, but this was before his time with the sheriff’s office.”
Garcia said after Osteen threatened medical personnel, local authorities likely would have placed a statutory red flag on Osteen so they could remove firearms from his residence.
In an interview with the Quay County Sun a few days after the shooting, Garcia described the fatal outcome at Osteen’s home as “unfortunate.”
“We feel regret when we have to take this action,” he said. “We send our condolences to the family. We understand the heartache, as well.”
In an interview last week, Garcia said he’d been medically cleared for duty but still was experiencing deep-tissue soreness from the bullet’s impact, plus neck and back pain.
Garcia had no additional comment about the state police report on Osteen’s shooting, other than describing it as “thorough.”
Krista Blair, one of Osteen’s daughters, did not respond when contacted Sunday by the Quay County Sun through Facebook Messenger.
In a text a few days after the shooting, Blair wrote of her father: “He was loved by many, and the situation and circumstances are unfortunate and heartbreaking,” she added.
Autopsy
According to findings from an autopsy by the Medical Examiner’s Office, Osteen died from gunshot wounds.
Bullets were recovered from Osteen’s skull, neck and abdomen.
Tests on Osteen’s blood revealed a blood-alcohol concentration of 0.212.
That would be nearly three times the legal limit for intoxication with the state’s drunken-driving laws.
Osteen also suffered from coronary and kidney disease. The autopsy did not mention whether he had suffered a stroke.
DA’s review
In a June 24 letter to state police, 10th Judicial District Attorney Heidi Adams said no charges would be filed against the sheriff for his deadly use of force against Osteen.
Adams stated: “It is my opinion that no reasonable jury should find that Sheriff Garcia used excessive force in the discharge of his firearm” during the incident.
“Sheriff Garcia’s use of deadly force was reasonable and necessary to preserve life. Sheriff Garcia was legally justified in using deadly force to defend himself and others,” the letter stated.
