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

“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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The decision in Danny Manzanares v. Sean Higdon, 07-2156, an officer of the Albuquerque Police Department, is a major victory for the rights of citizens being interrogated by the police in their own homes. The 7 yr. old case was brought by Dennis Montoya of Rio Rancho, New Mexico.

Danny Manzanares first consented to the officers entering his home to investigate allegations of rape made against a co-worker and friend, Miguel “Rick” Maestas. Danny later revoked consent, commanding the officers to leave and stop asking him questions.  Instead of leaving, the officers arrested Manzanares, who was neither a material witness nor accessory to the crime of rape, but merely stopping short of informing on his friend’s address.

Continued ...

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In a recent, split decision by the United States Court of Appeals for the 10th Circuit, the Court reversed a lower court’s judgement against Sylvia Avila, a Hispanic girl, 13 years old at the time of the incident.  The decision in Glenda Sherouse and Sylvia Avila v. Suzanne Ratchner, et al., No. 08-2105, was written by Circuit Judge McConnell.  The case and appeal was brought by Mary Y.C. Han, Paul J. Kennedy, and Caren I. Friedman for the Plaintiffs-Appellants, in a hard-fought case spanning years. 

The wrongful arrests of the teenage girls arose after three armed robberies, one of which occurred in an Albuquerque Shoes on a Shoestring, a store known for its quality shoes, priced within grasp of the reasonable.  However, because there was enough probable cause supporting the jury’s verdict against Sylvia’s African American friend, then 14 -year-old Glenda Sherouse, the district court denied Sherouse’s Motion for Judgment as a Matter of Law.  Civil Rights attorneys are sedulously scouring the opinion, in order to understand its doctrine and reasoning.
      
Contd ...

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On January 27, 2009, an Albuquerque jury returned a verdict in a wrongful arrest claim against a City of Albuquerque police officer in the amount of $1000. 

In his claim, Mr. Richard Mora of Albuquerque stated that Albuquerque police officers unlawfully ordered him from his home and then one officer unlawfully patted him down. The justification offered for the pat-down from the Albuquerque police officer was that Mr. Mora was telling the officer that he was going to sue them and he was looking at him in an angry manner.

The District Court agreed that the officer had no cause to attempt a pat-down search of Mr. Mora. The law was clearly established that the officer needed some information that Mr. Mora was armed and dangerous before the officer could lay hands on Mora. Mr. Mora was gratified that his lawsuit resulted in a victory for him and helped solidify the law in the area of police/citizen encounters.

The City of Albuquerque has appealed the judgment to the Tenth Circuit Court of Appeals.

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