Video, Inconsistencies Prompt Calls for Deputies’ Indictment for Killing Unarmed Man

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.

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.”

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.

Without 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.”

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?”

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.

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.

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. The two deputies fired five times at Aguilera.

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.

After the shooting, Smothermon can be seen in the video, calmly watching his fellow deputies giving CPR.

There’s no clear way to know what happened in the moments between when Aguilera was put into the back of the 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.

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