Horror of domestic gun violence shreds New Mexico family

January 29, 2019

July 17 is the best of days in the Gaytan household, because it marks the birthday of 12-year-old Ian, who lives with his grandparents in a doublewide mobile home on a dirt road in Española. And July 17 is the

worst of days, because it marks the anniversary of the shooting death of his 20-year-old mother, Jasmine Gaytan, at the hands of his father, Leroy Fresquez Jr.

It has been left to Olga Gaytan, a 55-year-old immigrant from Guanajuato, Mexico, to make sense of the contradictions. She stepped in and adopted her grandson following the 2009 murder of her daughter.

Jasmine Gaytan and Fresquez had known each other ever since their days at Carlos F. Vigil Middle School, the same school Ian now attends. They both dropped out in seventh grade.

By the time Fresquez killed her, the two had been together for eight years. According to police and court records, he shot her at their house in Española, then carried her to the hospital covered in blood. He initially claimed she was the victim of a drive-by shooting, but his account quickly fell apart after an examination of the close-range bullet wounds in her neck.

Six months later, Fresquez pleaded guilty to second-degree murder. He served 4½ years in prison, was released in 2014 and is now back in state custody for probation violations.

Jasmine Gaytan’s murder is the type that is all too common in New Mexico. In 2014, the most recent year for which data are available, 20 people were killed by a spouse or domestic partner, according to the New Mexico Intimate Partner Violence Death Review Team. This multidisciplinary team of medical, legal, law enforcement and tribal representatives analyzes the records of every domestic violence case that turns fatal; according to their data, 72 percent of the killings that year involved a gun.

Advocates have for years been urging the state to adopt a law that would prevent gun ownership by domestic abusers. The New Mexico Legislature is expected to vote on such a bill this session. As written, it would require anyone convicted of domestic violence — a well as anyone convicted of stalking or subject to an order of protection — to surrender firearms to law enforcement within 48 hours.

Police and military personnel would be allowed to keep their guns while on duty; gun owners could recover their weapons once the order of protection expired.

There have been other attempts to pass such a law. The most recent was in 2017, when lawmakers in both chambers approved the measure but then-Gov. Susana Martinez vetoed it, telling legislators that the issue was “complex.”

Domestic violence experts anticipate a different response from the new governor. Indeed, her spokesman all but guaranteed it when he recently told Searchlight New Mexico that Michelle Lujan Grisham “is committed to making sure those who clearly, clearly, clearly shouldn’t have guns don’t.”

It’s unlikely such a law would have protected Jasmine Gaytan; Fresquez had never been arrested in connection with domestic violence. Like so many victims of his crime, Gaytan never sought a protective order against her boyfriend.

Relatives believe he had abused her for years, but she kept it a secret. Her older sister, Ebelin Gaytan, said she learned that Fresquez once threw Jasmine down a flight of stairs, and that her sister remained in the relationship because he carried a gun everywhere he went.

Twenty-three days before Jasmine Gaytan died, Española police were called to investigate a shooting at her parents’ house. When officers arrived, she reported Fresquez had fired a gun at the house while she and Ian cowered inside.

But when police caught up with Fresquez, records show, he told them he didn’t have a gun and claimed he had only thrown fireworks at the house.

Gaytan didn’t call police that day. It was her big sister. “Jasmine would never call the police,” Ebelin said. “She was too scared. She called me instead.”

When she got the call, Ebelin raced over to their mother’s house, she said, where Ian informed her that, “Dad was trying to kill us.”

She saw a bullet hole in a front windowpane; it is still there today. Still, Jasmine Gaytan quickly dialed back her initial statement, telling police that perhaps she was mistaken. She wasn’t sure she had seen a gun. Maybe Fresquez had just thrown firecrackers.

Victims often recant their accusations. Others become frustrated with what they see as an unsupportive justice system.

Indeed, domestic violence conviction rates are declining in New Mexico.

Betty Caponera, author of an annual report by the New Mexico Coalition of Sexual Assault Programs, said 8 percent of cases filed in Magistrate Courts in 2017 resulted in a conviction, down from 21 percent in 2010. In District Courts, the rate dropped in that time to 29 percent from 37 percent.

Martinez said the gun bill she vetoed in 2017 was unnecessary because judges already have the power to confiscate guns when issuing restraining orders in domestic violence cases.

Congress passed laws in 1994 and 1996 that prohibit offenders — those under a long-term permanent protective order or convicted in the assault of a spouse or child — from acquiring or owning a firearm.

But those federal laws are effectively toothless without a parallel New Mexico law. That’s because only federal agents can enforce federal laws. Local police arrest offenders who break state laws.

“We have spent a lot of time talking to judges, asking them, ‘Do you or don’t you have the authority to take away guns?’ ” said Lisa Weisenfeld, former director of the New Mexico Coalition Against Domestic Violence. “And they tell us, ‘No.’ That’s why we need a state law.”

Weisenfeld, who worked as a prosecutor in Northern New Mexico for five years, said she could not recall a single instance in which a domestic violence offender surrendered a firearm as a result of criminal charges or conviction.

To give teeth to federal laws, many states have adopted measures requiring offenders to relinquish firearms to police, or to a neutral third party. Many states go beyond federal law by applying the restrictions to all domestic violence offenders, not just spouses — thereby closing the so-called “boyfriend loophole” that exists under federal law.

In New Mexico, studies show the majority of domestic violence incidents are perpetrated by former or current dating partners, not spouses.

Restrictions have been passed inliberal states, such as California and Massachusetts, and in Second Amendment strongholds such as Alabama, Louisiana, Tennessee and Texas, according to the Giffords Law Center, which monitors and pushes for stronger gun control laws nationwide. The center is named for Congresswoman Gabrielle Giffords, who was seriously wounded in the 2011 mass shooting in Tucson, Ariz., that left six people dead.

No such restrictions apply in New Mexico.

Hours after Jasmine Gaytan’s fatal shooting, a Fresquez family member drove Ian to his maternal grandmother’s house. As the sole surviving parent, Fresquez was initially allowed to determine custody of the child. He granted it to his aunt.

Police arrived at Olga Gaytan’s house with a court order to remove Ian, who was 3.

“After all the trauma he had been through, to put him a police car, we wouldn’t allow it,” Ebelin Gaytan said. Instead, she and her parents took the child to Fresquez’s aunt.

But Fresquez eventually lost his parental rights, and Olga Gaytan undertook a two-year battle to adopt her grandson.

“People say I’m his grandma,” she said, “but I always say, ‘No, I’m his mother.’ ”

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