Family lawyer demands murder charge against Las Cruces officer who used deadly neck restraint

LAS CRUCES, New Meixco — The lawyer representing the family of a man who died after leading police on a foot chase said Tuesday that an involuntary manslaughter charge filed by prosecutors against the officer-involved amounted to a "slap on the wrist."

Attorney Sam Bregman called on Dona Ana County District Attorney Mark D'Antonio to upgrade the charge against Las Cruces Officer Christopher Smelser to second-degree murder. Manslaughter carries an 18-month sentence versus 15-years in prison on a second-degree murder charge.

Bregman called the case "sickening" as he cited the officer's own words from a police body camera recording, saying "I’m going to f***ing choke you out, bro" right before utilizing a deadly neck restraint on Antonio Valenzuela.

Valenzuela, who had a parole violation warrant against him, ran on foot from officers following a traffic stop on Feb 29. Police contend Valenzuela was combative when they caught up to him and Smelser said he used a neck restraint to gain control.

"Resisting (arrest) is a laughable defense" for Smelser's actions, Bregman said, noting that anyone who was "struggling for air" in order to breathe would naturally put up a fight.

Bregman called the incident the most "egregious and outrageous" case of police brutality that he's personally seen in his years as a prosecutor, defense lawyer and civil rights attorney.

"This cop's got a problem," said Bregman, who added that Smelser shouldn't have been allowed to carry a badge and gun. Following Valenzuela's death being ruled a homicide by the state medical investigator, Las Cruces Police Chief Patrick Gallagher said it would be in the best interest of the department and the community to relieve Smelser of his duties.

At a hearing Monday afternoon on the manslaughter charge in Doña Ana Magistrate Court,  Judge Rebecca Duffin found Smelser was not a flight risk and released him on his own recognizance without the need to post a cash bond.

Smelser's attorney, in a statement sent to ABC-7 on Tuesday, contended that her client "used a maneuver that was sanctioned by the Las Cruces Police Department during a violent struggle while attempting to take Mr. Valenzuela into custody." Gallagher has said the LCPD stopped using that maneuver in the wake of Valenzuela's death.

Attorney Amy Orlando said Smelser "regrets the outcome of the incident however, Mr. Valenzuela had a felony warrant, ran from the police, was under the influence of drugs, had drugs on his person, had a weapon, actively resisted, and violently fought the officers."

But Bregman said the police video of the incident tells a different story than the one Smelser is trying to portray, noting that Valenzuela never pulled out or threatened the officers with any weapon; he had a pocketknife on him. Bregman added that Valenzuela was running away from officers when they first fired a Taser at him before utilizing the neck hold that resulted in his death.

There was no immediate response from the District Attorney's office to Bregman's demand that a murder charge be brought against the former officer.