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Judge dismisses charges against man wounded in 2017 BP checkpoint shootout

A federal judge has dismissed charges filed against a Tombstone-area man, who was shot and wounded during an exchange of gunfire with Border Patrol agents at a checkpoint last summer. 

In June, U.S. District Judge Raner C. Collins dismissed charges against Gary Kent Smith after the 77-year-old was found not competent to stand trial following an doctor's evaluation in March. 

A doctor told the court in March that a CT scan showed that Smith suffers from "severe brain atrophy," as well as a chronic, and likely, fatal heart disease. Smith's cognitive condition had declined "significantly" since January requiring Smith's transfer from prison to a long-term care facility, he said. 

Smith is "confused, does not understand what is going on, and does not understand the nature of the proceedings against him and cannot assist his attorney in his defense," the doctor told the court. 

Smith faced four criminal charges, including two counts of assault against a federal officer, stemming from a May 2017 incident in which Smith shot at two Border Patrol agents manning the Border Patrol checkpoint on State Highway 80, just north of Tombstone.

The incident began when Smith, armed with a 9-mm semi-automatic pistol and a .22-caliber revolver, plowed his Dodge Dakota pickup into traffic cones at the checkpoint, narrowly missing BP Agent Noah Dominguez within "three to five feet," according to court documents. 

Dominguez said that he saw Smith holding a weapon and "firing rounds" and realized that Smith had fired multiple shots from the pistol at both him and BP Agent Harrison Walz. 

Dominguez and another agent, identified in court documents only as I.O., fired their own weapons at Smith, hitting him in the upper left arm. The agents treated Smith for his wounds. 

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An FBI agent investigating the incident wrote that Smith had been recently treated and discharged from a mental health facility, and earlier that day had become "agitated with family members" and left the family home in his truck along with a six-pack of beer and his "gun bag." According to court documents, Smith told a family member that he would commit suicide by cop. 

Family members called Tombstone police, who relayed the information to the Cochise County Sheriff's Office and Tucson Sector Border Patrol. 

On June 20, the government and Smith's defense attorney filed a joint motion to dismiss the indictment "without prejudice," and Smith will be released to his family. 

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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CBP

The scene at the Border Patrol checkpoint just north of Tombstone on State Route 80 after Gary Kent Smith, then 76, was wounded after he fired on agents manning the checkpoint.