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

Obviously, this was a gratifying victory for a young girl who is still very much at risk for educational failure because of a teacher's actions. Kennedy and Oliver worked on this case for eighteen months. The highest settlement offer L.S. received was $300,000, including costs and attorney fees. This offer was made after a year of litigation.

The insurer in this matter, New Mexico Public School Insurance Authority, was the most mendacious public entity I have ever litigated against. Before our client's mother retained Kennedy & Oliver, an insurance, money grubber invited mom to a Denny's in Farmington and offered her $10,000. When she did not accept the offer, he falsely told her that there was a cap of $250,000 in damages and she shouldn't hire a lawyer because he would just take one-third of the money for doing little work.

The result would not have been possible without our expert Gilbet Kliman, M.D., a psychiatrist in San Francisco and Director of the Children's Psychological Health Center, Inc., a non-profit organization that works with traumatized children.

The claims were made under 42 U.S.C. Sec. 1983 and alleged a deprivation of Fourteenth Amendment Rights to Equal Protection and Substantive Due Process. The defendant plead guilty to criminal sexual contact and admitted liability. The guilty plea allowed us to proceed to trial without our client's testimony. We were able to tell L.S.'s story through her mom and Dr. Kliman.

Of particular note, the defendant actually testified at trial. Defense counsel apparently believed an apology would enable them to argue that no punitive damages were warranted. However, the defendant asserted his Fifth Amendment Right to refuse to testify about any previous acts of sexual molestation. He also asserted a privilege against disclosing his conversations with counselors in prison.

Ms. Oliver gave a truly beautiful rebuttal argument, which included an analgoy between his staged apology in court and his molestation of L.S. When he turned to apologize to our client's mom, she broke down weeping and turned her back to him. He continued with the apology while our client's mom's shoulders were heaving. Ms. Oliver pointed out that he continued depsite how obvious it was that he was hurting her, because he wanted to selfishly relieve himself on her. Ms. Oliver said that that was just like the molestation itself. He did not care about the damage he was causing; he wanted to continue to gratify himself.

While the case involves an Eighth Amendment claim, the holding has broad application in Section 1983 for supervisory claims and municipal claims. (Claims of prison assault analyzed under Eighth and Fourteenth Amendments. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Lopez v. LeMaster, 172 F.3d 756, 761 (10th Cir. 1999); Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993)).

The factual details of the evidence considered and the Court's handling of the evidence are difficult to summarize. The case is an obvious must read for the practitioner with a similar claim. However, there are aspects of the opinion worth noting:

1) The Court inferred that post-incident misconduct may be used to show a supervisory defendant's mental state or policy.

To meet the Farmer test . . . Ms. Gonzales presented a series of incidents both preceding and following her assault to establish a genuine issue of material fact that the sheriff [possessed facts from which an inference can be drawn that the sheriff was aware of a "substantial risk of serious harm"].

2) The Court considered evidence of how the sheriff handled the investigation of the sexual assaults at issue.

Finally, and most astonishing, when first advised . . . he not only left the prisoners unprotected in the jail, but also in the custody and control of the very men accused of the assaults.

3) The Court considered acts of guard-on-inmate violence other than sexual assaults, other guard misconduct and the failure to provide security for the area where the assault occurred.

NOTE FOR NEW MEXICO PRACTIONERS:

While this case is of monumental importance in prosecuting supervisory liability claims, the New Mexico Tort Claims Act provides coverage for state employees who commit criminal acts while engaged in the service of their employers. Risk Management Division v. McBrayer, 129 N.M. 778, 2000 NMCA 104, 14 P.3d 43 (Ct. App. 2000). Thus, the importance of supervisory liability claims is not as great as in other jurisdictions. In New Mexico, a county's carrier would likely pay a judgment against a guard who sexually assaults an inmate.