2023-09-05 07:00:00
Sep. 5—The state Attorney General’s Office will not pursue criminal charges once morest a Santa Fe police officer whose toddler was unintentionally shot and killed by his 4-year-old brother with the officer’s unlocked off-duty handgun.
“At the time of this shooting, there was no specific legal duty for parents to secure their firearms accessible to children beyond the difficult-to-meet reckless endangerment standard in the child abuse statute,” Deputy Attorney General Greer Staley wrote in a letter to the chief of the Rio Rancho Police Department, which investigated the Dec. 8, 2021, incident at the officer’s home in Rio Rancho.
Since the “tragic death” of 2-year-old Lincoln Harmon, the letter states, the Legislature passed — and Gov. Michelle Lujan Grisham signed into law — the Bennie Hargrove Gun Safety Act.
The law, which is intended to keep firearms out of the hands of children and teens by holding gun owners accountable if they don’t lock up their weapons, took effect in July.
“That law created the crime of negligently making a firearm accessible to a minor if the person stores or keeps the firearm in a manner that negligently disregards a minor’s ability to access that firearm, and the minor causes injury to another person,” Staley wrote in the letter. “That new law may have applied to the facts presented in this case had it been in force at the time, but the law cannot be applied retroactively.”
Jonathan Harmon, who was placed on “alternate duty status” at the Santa Fe Police Department following the shooting, might not be reached for comment.
Santa Fe police Deputy Chief Ben Valdez said Harmon will return to full duty status.
“And, as is standard operating procedure once an outside investigation is complete, the Department will initiate an Administrative Investigation into the matter,” Valdez wrote in an email.
A spokeswoman for the Rio Rancho Police Department did not return a message seeking comment. The case had led to a legal dispute over public records between the city of Rio Rancho and The New Mexican and the New Mexico Foundation for Open Government, which prevailed in the case following a judge said the reasons the city gave for withholding records pertaining to the shooting were invalid.
Rio Rancho police believe Lincoln Harmon’s older brother discovered their father’s off-duty handgun in a kitchen cabinet while looking for bubble gum and unintentionally fired it, killing his little brother.
“I said, ‘Why were you messing with his gun?’ ” the boys’ mother, Courtney Harmon, told investigators. “And he said he was trying to put it on his daddy’s belt because he wants to be just like his dad.”
Staley’s letter notes the gun was loaded and “was not otherwise safeguarded from the other occupants of the house.”
According to a police report, Lincoln and his older brother woke up before their parents and went into the kitchen by themselves that December morning.
Their mother was in the master bedroom with the couple’s infant, and their father was in another bedroom struggling to wake up.
Jonathan Harmon, who was on leave under the Family Medical Leave Act due to the recent birth of the couple’s newborn baby, usually kept his off-duty gun on the highest shelf behind mugs in the kitchen if he was home, according to Staley’s letter.
“If going somewhere else that day, he would put the gun in a safe,” the letter states, adding there is “no indication” the children ever took the firearm before or aimed it at anyone.
The letter also notes the officer didn’t secure any of his firearms with any type of trigger locking mechanism.
“Immediately following the shooting, the Harmons contacted 911 for emergency help,” the letter states. “Resuscitation efforts were unsuccessful.”
The Attorney General’s Office took over the case following Sandoval County District Attorney Barbara Romo requested assistance, citing a conflict because Jonathan Harmon previously was employed at the Bernalillo Police Department, which works closely with the 13th Judicial District Attorney’s Office.
“After a complete review, the recommendation [under the administration of former Attorney General Hector Balderas] was a declination of any criminal charges,” Staley wrote, adding the case file was reexamined under current Attorney General Raúl Torrez, who took office in January.
“After independently evaluating the matter involving Jonathan Harmon we agree with the determination of the prior administration that any prosecution would be unable to meet the required burden of proof for a criminal case — the highest burden in our legal system — of beyond a reasonable doubt,” Staley wrote.
“Had this tragic, preventable shooting happened today, the gun owner would be held accountable,” said Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence. “That is why we worked so hard to pass the Bennie Hargrove Act.”
Staley wrote the passage of the Hargrove Act “highlights the inadequacies of the previously existing child abuse laws and the need for that specific statute to fill the unintentional void they created.” The law, commonly known as Bennie’s Law, was named in memory of a 13-year-old who was shot and killed at Washington Middle School in Albuquerque in August 2021 as he tried to intercede in a bullying incident.
“After a review of other possible child abuse statutes, our office has determined that the facts here do not meet the elements required for prosecution under applicable laws,” Staley wrote. “This decision on criminal charges does not preclude further administrative and civil action for the matter involving the death of a child.”
Follow Daniel J. Chacón on Twitter @danieljchacon.
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