RIO RANCHO, N.M. (KRQE) – A four-year-old got ahold of his father’s gun and shot and killed his two-year-old brother in 2021. Now, News 13 has learned that the father, a Santa Fe Police Department officer, will not face criminal charges. Prosecutors said they might have made a case had the laws been different.

Officers responded to the Rio Rancho home to find the boy had been shot and learned it was his brother who pulled the trigger. Their father, Santa Fe Police Officer Jonathan Harmon, later explained to police how he stored his personal gun while he was at home. “Take it off my body when we get home. I put it on the very highest top shelf in the kitchen. It’s the third shelf and it’s behind the coffee mug,” said Harmon.

That hiding place, it turned out, was not enough to keep the gun away from the four-year-old, who apparently pushed a chair against the counter and may have been searching the shelf for chewing gum.

In a letter to the Rio Rancho Police Department, Deputy Attorney General Greer Staley said this is the kind of case that would be prosecuted under the Bennie Hargrove Act. That legislation holds parents responsible if a child gets a hold of their gun and hurts someone. Since that law was passed earlier this year, more than a year after Lincoln’s death, the state cannot use it to prosecute this case meaning Officer Jonathan Harmon will not be charged.

According to the letter, the state would have to rely on the standard of reckless endangerment to prosecute Harmon. A charge, the letter said, they would not be able to prove in court beyond a reasonable doubt.