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

          We have recently had complaints from parents about children as young as eight to ten years old being placed in handcuffs.  The Kennedy Law Firm believes that placing handcuffs on children, in most situations, is excessive force.  

          That our children are protected from certain law enforcement actions should not surprise us.  This protection is a surprise to many law enforcement officers, however.  When a juvenile commits an act that would be a crime if an adult had committed the same act, the law treats the juvenile differently, especially when the child is younger than eleven years old.

          In New Mexico, police may not hold a child under eleven in detention.  New Mexico Statues Annotated, Section 32A-2-10(C)("A child under the age of eleven shall not be held in detention").  So, if a police officer or school official restrains a child eleven or younger in handcuffs, the officer is violating the law.  Restraining children can cause long lasting psychological harm.  There is usually no reason to restrain children under eleven years old, as they typically weigh 60 pounds or less.

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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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In a wrongful arrest claim brought on behalf of a 58 year old Albuquerque woman, the Kennedy Law Firm prevailed on an appeal of a jury verdict in favor of the defendant police officer.  The Tenth Circuit Court of Appeals reversed the jury verdict with instruction to the district court to enter judgment in favor of the Kennedy Law Firm's client, Bertha Keylon.

On a Saturday morning, September 28, 2003, Albuquerque Police Department, Scott Barnard, arrested Bertha Keylon. Officer Barnard arrested Ms. Keylon for resisting an officer under state law and concealing identity under state law. Officer Barnard alleged that Ms. Keylon lied about the date of birth of her 30 year old son, who was accused of damaging a tow truck. Ms. Keylon denied lying to the officer. 

The Kennedy Law Firm argued and the Tenth Circuit agreed that even if the officer's testimony was taken as true, the officer had no probable cause to arrest Ms. Keylon for resisting and had no basis to demand identification from Ms. Keylon. The opinion focused on the qualified immunity defense and the objective reasonableness standard. The opinion cautions that the officers subjective belief, unless based upon objective facts, is not relevant to the question of reasonableness under the Fourth Amendment. Finally, the Tenth Circuit criticized the District Court's submission of the qualified immunity question to the jury, stating again that in the Tenth Circuit qualified immunity rarely should be submitted to the jury.

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