New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

March 2, 2010

“I actually thought I was going to die,” Susan Schuurman told the jury in the second week of trial in Lynn Buck, et al. v. The City of Albuquerque, et. al.  “I ran over to the sidewalk in front of the Frontier, doubled over trying to breathe … It was really scary, I was terrified.”

Susan is one of eleven named plaintiffs in the major federal civil rights trial going on now, before Judge Johnson in the U.S. District Court for the District of New Mexico.  She described the night of March 20, 2003, after several tear gas canisters had been fired into the crowd of anti-war protesters. As reported last week, the crowd, which sometimes numbered over 700 (depending on the time), included children, elderly residents, and Albuquerque citizens of all kinds ...

"I noticed a woman who was overcome at my feet (Continued) ..

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“It was a no-win situation.  I was never going to please the protesters, but I did the best I could,” Incident Commander Gonzales said, addressing the jury in the fourth day of trial before Judge Johnson.  Seated in the witness stand, in the elegant Rio Grande Courtroom of the U.S. Federal District Courthouse, mid-level (up on the 3rd floor for the curious onlooker), the case of Lynn Buck et al. v. City of Albuquerque, Mayor Martin Chavez, Nick Bakas et al., completed its fourth day of trial.   It has been nearly 7 years since the large anti-war protests of March 20, 2003 were met with a storm of tear gas, pepper spray, and battered spirits.  Many remember the protests, happening between the UNM bookstore and the Frontier Restaurant, like they were just yesterday.  

The long-awaited trial has finally arrived.  After an opinion issued from the 10^th Cir. on July 28, 2008, stating that the officers were not entitled to qualified immunity, the case this week took a small step forward in finally coming to justice.  Attorney for the plaintiffs, Cammie Nichols of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenberg, Bienvenu, LLP, grilled Commander Gonzales over the “less-than-lethal” munitions ...   

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What makes a seizure unreasonable when interpreting the Fourth Amendment to the United States Constitution?  How should reasonable be interpreted at the summary judgment stage, for the purposes of determining whether a police officer is entitled to qualified immunity? Recently, the United States Court of Appeals for the Tenth Circuit significantly clarified competing doctrines in this area, releasing an opinion authored by Judge Tymkovich in the case of Robert and Mary Fisher v. The City of Las Cruces, 2009 U.S. App. LEXIS 22825 (10th Cir. N.M. Oct. 19, 2009).

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     In a come-from-behind, but dubious victory for the Fourth Amendment, Justices Stevens and Scalia teamed up to deliver a surprise concurrence in the recent case of Arizona v. Gant, 129 S. Ct. 1710, 2009 U.S. LEXIS 3120 (2009).  After thoroughly reviewing the Court’s previous holdings in N.Y. v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); and Chimel v. California, 395 U.S. 752 (1969), commentators were shocked to learn there is actually something on which the liberal and conservative wings of the Court agree:
    Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
    Continued ....

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     In a remarkable victory for the rights of citizens whose family members are suspected of criminal activity, the United States Court of Appeals for the Tenth Circuit decided that family relationships alone do not justify searches of homes, even when officers can convince a state district court judge to issue a warrant. Poolaw v. Marcantel, 2009 U.S. App. LEXIS 9483 (10^th Cir. N.M. May 4, 2009).

     The owners of the home illegally searched (in this case mere in-laws of the primary suspect), were related by nothing more than marriage. The criminal suspect was wanted for the tragic homicide of a sheriff’s deputy, with the innocent family members caught in the middle of the ongoing dragnet. The ruling is a victory for the cause of civil rights, the Constitution, and the rule of law.

     Continued . . .

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