New Mexico Civil Rights Law Blog

"I Was Just Trying to Light My Candle"

Joe Kennedy — Wed, 03 Mar 2010 15:16:39 -0800

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) ..

“I noticed a woman who was overcome at my feet,” she went on, describing on direct examination to Brendan Egan of the ACLU, how she was unable to help the woman (later identified as Camille Chavez). Chavez was lying in the middle of Central, choking on the gas. “I was immobilized … I felt guilty ever since.”

Several shots had been fired into the crowd, including a canister which had been volleyed on the mall, directly before the bookstore. The crowd dispersed in panic in every direction.

“I thought they were real bullets,” she explained. “I knew nothing about the tear gas, having some kind of asthma attack.”

The photo of Chavez was featured prominently in the Albuquerque Tribune at the time. One of two major Albuquerque newspapers, the more liberal-leaning Tribune went out of business in 2008. As of the time of this update, there have been no major broadcast or reporting on the current trial, between Channels 4, 7, 13, or any of the major, local Broadcast media, which all have a metaphorical license to “print money” in the form of unlimited amounts of advertising sales. Since 1985, The FCC no longer regulates these stations under the Fairness Doctrine, which was in effect in prior decades, but still upheld as Constitutional by the U.S. Supreme Court in Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969). Consequently, the majority of citizens or attorneys in Albuquerque don’t even know a major civil rights trial is happening, in their own neighborhood, as no TV reporting has been conducted, even outside the Courthouse. Unpaid bloggers have never been so crucial to Democracy.

“All of a sudden I felt a baton in my back. I was quickly met by other officers who shoved me back into the sidewalk,” Schuurman went on to explain how she was ‘pin-balled’ back and forth, between the street and the sidewalk, being struck several times with batons. She yelled at the officers, “Where do you want me to be?” An unidentified officer replied, “You should have thought of that before.”

“They weren’t trying to direct me to a certain place, they were punishing me for my points of view,” Shuurman concluded. “I finally had the guts to ask the officer if I could go to my car … I was scared of being followed home by the police, or maybe they were going to do something to my dogs … because of their [ABQ police officers] hostility, they were treating us like we were the enemy, like we were unpatriotic.”

Shuurman continues to have flashbacks of the incident whenever she walks through the intersection of Central and Cornell.

“I don’t want any peaceful protester to ever have to experience that fear again,” she said, when cross-examined by the City’s enormous defense team of at least 11 private attorneys, filling up the entire opposing counsel table of the large federal court room. “I want there to be accountability.”

“I was just trying to light my candle,” she concluded, as part of a prayer vigil for peace. A video was later played of the crowd singing, “The People, United, Will Never Be Defeated.”

Camille Chavez, a lifelong resident of Albuquerque, always trusted police officers before the events of March 20, 2003.

“I always thought that police officers had a really hard job to do,” she explained. Sometimes, she was extremely grateful for a police presence, whether it be responding to crime, or likewise. She never anticipated the dark emotions that were conjured up that rainy night in the Duke City.

When the first shots were fired by the police, she thought, “that’s it, I’m out of here, I’m too scared. … It’s getting progressively more and more terrifying.” But then, after checking in with a higher power, whom she called God, Chavez concluded:

“I said a little prayer,” she testified, holding back tears. “That’s how I knew, no matter how scared I was, I could stay there in solidarity.”

Suddenly there was a large shot and screaming, and she witnessed another protester fall to the ground.

“We all linked arms and just sat down in the street,” she said. “ … A protester near her chanted, ‘peaceful protest, not a riot!’ Billows of white smoke began rolling into the intersection, a protester kicked the gas canister back toward the police, and the police threw the canister directly back into the crowd.

“It really felt like an assault,” Chavez stated. “They [the police] had tear gas masks but I didn’t have any protection.”

At this point, Chavez stated she didn’t mind getting arrested. When questioned about the long history of civil disobedience, she compared the crowd to those following in the tradition of Gandhi, Thoreau, Martin Luther King, Jr., and Jesus Christ (who stood down the Roman Empire, despite death, to deliver a message of peace and nonviolence).

“I got a complete face full of the gas, right into my face,” she stated. “I can see guns pointed at me, I am out there by myself. I am absolutely terrified. I couldn’t leave at that point, my eyes were burning, and I couldn’t breathe.” Instead, Chavez just fell to the ground.

“I thought, ‘how can they kill me I am just collapsed in the street?’ ” she thought. “Somebody ran up to me with a vinegar rag and handed it to me.” She was never able to identify the person with the vinegar-soaked rag, as breathing through it instantly relieved the tear gas asphyxiation. Perhaps a guardian angel came more prepared.

After standing up, she began hobbling toward the Frontier Restaurant, breathing through the rag.

“I got hit from behind with a billy club,” she testified. “I flew through the air, my glasses flew off my face, landing on the sidewalk .. I was just stunned, my eyes were still burning … [All I could] hear was chaos.”

“Get across the street,” a masked, unidentified cop shouted, striking her a second time from the back, knocking her into Central. “I just freeze … There is another man on the mall, not moving, and people are trying to help him. Officers came charging up onto the mall [with their horses].”

As the night wore on with more acts of terror, Chavez was eventually allowed to return to her car, and back to her home.

“I didn’t go to the protest the next day, I couldn’t believe anyone could be that brave,” she explained, as she was having nightmares for several nights after the assault. “Scary figures were chasing me.”

What did she take home with her from the events of that night?

“There was just a piece of trust gone,” she stated. “The police broke rules that night, and I no longer feel safe voicing my opinions.”

"Part of me feels like a failure because I wasn't able to complete my statement," Chavez said, reliving the horrible moments through tears on the stand.

Despite the fear, her higher power told her she was exactly where she needed to be, and she stood her ground.

The numbers of protesters, over the years, gradually grew smaller and smaller nationwide. At least for that night, the protesters prayer candles were no match for the tear gas of the Albuquerque police department.

Check back for more updates on the Civil Rights blog as the stories of other courageous Americans are told throughout the trial ...

-Derek Garcia for The Kennedy Law Firm

Freedom of Speech v. Public Safety

Joe Kennedy — Thu, 25 Feb 2010 17:33:03 -0800

“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 ...

Attorney for the plaintiffs, Cammie Nichols of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenberg, and Bienvenu, LLP, grilled Commander Gonzales over the “less-than-lethal” munitions deployed against the protesters, including pepper spray, tear gas canisters, riot batons, K-9 units, and rubber bullet / bean bag guns. Unlike the Boston massacre, real bullets were not deployed, but most riot officers were carrying a real, loaded weapon, ‘just in case’ peace broke out. The protesting crowd of well-over five hundred individuals included everyone as diverse as elderly residents, children, family pets, journalists, and Professors from the University of New Mexico. Most had no idea the State would ever react so forcefully to what many thought was a peaceful protest. On March 20, the United States began the imminent bombing of Iraq, based off rumors of weapons of mass destruction. Cries of 'Who would Jesus Bomb?" simply weren't loud enough.

So why were such heavy-handed measures utilized?

“We heard rumors some of the individuals had baseball bats and hockey sticks,” Commander Gonzales explained.

While no such “less-than-lethal” sticks were ever located, Plaintiffs contend the rumors made a good excuse for the cops to play dress-up in gas masks and deploy other means of concealing their identities. There were, after all, a few masked anarchists in the crowd seeking to cause trouble, with no apparent respect for the 1^st Amendment and other seemingly ridiculous laws. Riot cops, concealing their identities, and without any identifying characteristics, are apparently excluded from the list of those who must respect the Bill of Rights, and other laws which have fallen out of fashion in the last seven years.

“[It was] a very unusual mix of people, so my concern level began to rise,” the Commander explained. “Something told me, this is different. There were individuals there dressed and acting in a manner we were not accustomed to, concealing their identities, etc. … From my age and experience, it indicated something is different here.”

Even so, the City decided not to deploy fire hoses on the protesters, although it was established today that fire hoses were actually considered. So much for the civil rights era being something confined to both the deep south, or the deep past.

As reported by Marisa Demarco in an Alibi article this week: "Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, said the plaintiffs will explain 'how their First Amendment rights to free speech were violated by the defendant police officers in retaliation for their participation in a lawful and peaceful demonstration against our country’s military actions in Iraq.' Among the principles at stake, he added, is the idea that citizens should be allowed to protest without being intimidated into silence because 'government officials might not agree with the content of their speech.' " Whether the law has anything to do with principle or ethics is yet to be seen.

The City’s defense attorney pointed to one of the display monitors, which displayed a circled letter A and a grainy looking picture of a random teenager, parading in a black mask.

“Do you recognize this symbol?” the attorney asked the Commander.

“I was privileged to be educated on what that symbol means, yes,” the Commander replied. “It’s the universal symbol for anarchy, a symbol recognized worldwide.”

The attorney asked the Commander to explain what he thought the symbol means. Wild speculation ensued.

“My interpretation of an anarchist is someone wholly against any kind of rules, other than the ones the individual makes,” the Commander speculated.

As a side note, and without having to call an expert on anarchist history and philosophy at over $100 / hour, the only definition of anarchy most agree on is that the word means, “without a leader,” and not that it means, “without rules or order.” Many nonviolent anarchists would contend they follow laws and respect all rules, so long as they are democratically created by a local community, and fashioned through an egalitarian process of consensus building. Then again, other anarchists would never allow a single anarchist to define what the word actually means, for them. But all that aside, one wonders if there is any law clerk in New Mexico paid enough to find out if Abrams v. United States, 250 U.S. 616 (1919) is still good law.

The central defense, that of preserving public safety and order (which allegedly could not be accomplished through any other less-drastic means), is likely to become the focal point of the entire controversy. It is estimated the trial will continue for three weeks before the jury will be called on to decide whether the City owes its tax-paying citizens any compensation for beating some, choking others, and generally striking fear in the hearts of any citizen who ever had an anti-war thought. The ACLU of New Mexico and the Peace and Justice Center, while covering many of the legal fees, is also asking for donations to the Plaintiffs. They are required to take three weeks off from work, unpaid, for the trial. The emotional damage of waiting for seven years for justice aside, it’s going to be a long haul. Check back here on the civil rights blog for updates.

-Derek Garcia for the Kennedy Law Firm

"De Minimis" Injury in Excessive Force Claims Defined by 10th Circuit

Joe Kennedy — Sat, 13 Feb 2010 21:48:59 -0800

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).

The Court recited the background of this strange case:

“After consuming at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka, Robert Fisher passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep.”

Id. at 22825. Las Cruces police department Officers Joann Schnell and Roberto Gutierrez responded to the scene, finding a bewildered Robert Fisher in the backyard, with his shirt off, nursing his wounds.

After retrieving Fisher’s gun, Officer Gutierrez ordered Fisher to lay on his bleeding stomach and spread his arms over his head. Fisher resisted this order, telling the officers that he could not comply due to his injuries. After repeating these orders, Fisher again did not comply. Officer Schnell then proceeded to handcuff Fisher behind his back. Because of the swelling to Fisher's bicep, she placed her knee into Fisher's back, in order to leverage his arms behind his body.

“Fisher begged not to be handcuffed in this manner. As he later reported: "I protested the handcuffing behind my back. I told the officers that it was not necessary and to consider my wounds. . . . I begged her not to handcuff me behind my back." Aplt. App. 77. The manner in which he was handcuffed--with a knee to his back, placing pressure on his stomach wound, and with his arms brought behind his body--caused, in Fisher's words, ‘excruciating pain. It felt like my bicep was tearing.’ Id. at 78.”

Id. at 22825. Fisher sued the officers under Section 1983, claiming the officers used excessive force, in violation of his rights under the Fourth Amendment. The District Court ruled against Fisher at summary judgment, claiming his injuries were minor, and he had not offered enough evidence “that he suffered a non-de minimis injury.” Id.

After surviving the two-part test laid out for qualified immunity explained in Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007) , the Court reviewed United States Supreme Court doctrine found in Saucier v. Katz, 533 U.S. 194, 121 (2001). The Court requires establishment of 1) a violation of a Constitutional right and 2) that the right was clearly established.

Following this analysis, the Court moved on to several balancing factors found in Graham v. Connor, 490 U.S. 386 (1989) to explain that a seizure’s reasonableness turns not just on why or when it is made, but also on how it is accomplished. In some circumstances, an inquiry into objective reasonableness won’t just focus on why, but also how. The Court cited Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007), for the proposition that, “If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force."

Applying prior doctrine, the Court analyzed, “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. The Court drew extensively on Buck v. City of Albuquerque, the war protestor case from 2003, in which the city was sued for excessive force in dealing with individuals exercising their 1^st Amendment rights:

“We do not agree with the concurrence that Buck v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008), rejected a de minimis injury requirement where the injury occurs during the course of handcuffing. The facts of the case make it clear why not. Doyon (the only person even handcuffed) did not attempt to flee, or pose a threat to any officer or individual, but nonetheless, the ‘officers grabbed him, dragged him, and pushed him face down on the pavement. One officer kneed him in the back and pinned him to the ground. An officer pushed him face forward onto the roof of a police car, and he was exposed to tear gas while handcuffed in the car.’ Id. at 1290. … Doyon was exposed to gas while handcuffed in the police car. Buck, in short, cannot fairly be read as a case in which excessive force arises solely from the manner in which officers applied handcuffs, rather than from force independent of the handcuffing itself.”

Fisher at 22825.

Finding that discharge of a gun in the city limits of Las Cruces is only a petty misdemeanor, and therefore not a severe crime, and viewing facts in light most favorable to the Plaintiff, the Court concluded in Fisher’s favor on all three Graham factors. The Court found that a reasonable juror could find injury, if even tiny injury. Either way, physical injury was not required, so long as emotional injury, or dignitary injury, could also be independently found. Remand for further proceedings and trial was appropriate.

Stating a clear rule of law, “In Cortez we explained that in a handcuffing case ‘to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional." Id. at 1129. Fisher at 22825.

In a concurrence on the judgment by Judge Gorsuch, he took issue with a rule requiring a showing of actual injury. “[O]utside the context of a claim alleging overly tight handcuffing, proof of injury [either physical or emotional] is not essential to an excessive force claim. See [Cortez] at 1129 n.24. “… [T]he circumstances of an encounter . . . may themselves be so outrageous as to demonstrate excessiveness’ without any evidence of a consequent injury).” Fisher at 22825.

-Derek Garcia for the Kennedy Law Firm

LULAC Joined by Southern Christian Leadership Conference Calling for Federal Ban on Tasers

Joe Kennedy — Wed, 23 Sep 2009 09:33:09 -0800

Last week, the League of United Latin American Citizens (LULAC) was courageously joined by the Southern Christian Leadership Conference (SCLC) in its call to ban the use of the Taser device nationwide. On September 8, 2009, the SCLC, whose first President was Martin Luther King, Jr., joined the Latino organization’s call to stop this brutal and inhumane practice by police officers. LULAC started to build momentum for this push to end the use of tasers in Albuquerque, New Mexico on August 15, 2009, holding a national press conference on the steps of City Hall. SCLC will be putting major pressure on the Obama administration (pressing Congress in the coming months) to outlaw a practice already classified as “torture” by the United Nations.

The push came after 14-year-old Kailee Martinez of Tucumcari, New Mexico was brutally struck in the head by a Taser dart. She now has 18 staples and 6 stitches on her head, thankful that she did not lose her life, compared with New Mexico’s 4 other lethal cases.

According to Truth Not Tasers, there have been 443 individuals killed by tasers in North America, as of July 1, 2009. Amnesty International placed the fatality number at 330 since 2001, while excluding cases resulting in severe brain damage, acoma, or a vegatative state.

Other recent cases of police brutality include a 14-year-old middle schooler with autism from Indianapolis, IA, who was tasered twice for “acting out” in school. Instead of following the IEP and individual discipline plan for the autistic child, school authorities resorted to police intervention. Robert Smith of Indianapolis despicably labeled the incident as simply “enabling” the child, only encouraging him to “cross the line” further and disrespect police authority in the future. One wonders what would have occurred to Rosa Parks had tasers been in use in Montgomery, Alabama in 1955.

Several lawsuits have unsuccessfully challenged TASER International, Inc.’s claims that use of the device is a “non-lethal” alternative to older-fashioned methods of police brutality, challenging the device on products liability grounds. These lawsuits have met with limited success, however, and have yet to thoroughly penetrate America’s political consciousness. An incomplete list includes: Powers v. Taser Intern., Inc., 2007 WL 5446674; Williams v. Taser Intern., Inc., 2007 WL 1630875 (N.D.Ga. 2007); Neal-Lomax v. Las Vegas Metropolitan Police Dept. 2006 WL 2668190; and other big cases.

Over the summer, in a huge victory against TASER International, a California jury awarded $6.2 million to a man wrongfully and excessively tased. The victory is the first ever against Taser International in a product-liability claim. TASER is appealing the award.

In Merced, California, an unarmed black man in a wheelchair, Gregory Williams, was excessively tased for no justifiable reason. Gregory had no legs at the time of incident (and therefore fleeing was not a possibility), as shown in this video. Mr. Williams lost his legs to gangrene previously, along with his job as a truck driver. No resolution from the incident is known at this time.

In Michigan, a 15-year old was tasered to death after bailing out of his Dodge Stratus, having done nothing more than drive on an expired license plate. After being shocked a single time by police, he paid the death penalty for driving on expired tags. A second Michigan case was that of 15-year-old Brett Elder, who was executed by taser after wanting to fight the police bare-handed. In all of the cases, the juveniles were completely unarmed.

“50,000 volts of shock can damage your nerves, can cause cardiac arrest and death. Your nervous system is a series of delicate cords,” said Ralph Arellanes of Albuquerque, New Mexico, LULAC’s District 1 Director and Chairman of the Hispano Roundtable of New Mexico. “We have medical professionals that say it hasn’t been tested enough by science, and there is no statistical evidence that Tasers actually save lives. If anything, lethal encounters between officers and civilians have actually increased.”

Arellanes attributes this to the fact that Albuquerque’s police training manuals falsely list a Taser as equal in force to that of mace or pepper spray, another assertion without any credible evidence. He believes there is a high percentage of police officers abusing tasers and too many innocent people are getting tased and dying at the hands of these police officers as a result of this abuse.

“Even good officers lose their temper from time to time ... Some love to watch people squirm and scream,” Arellanes observed, noting that it is often fun for officers to deploy the devices. “The abuse of these devices by police departments is widespread. Some of them enjoy watching people electrocuted,” while others he characterizes as simply numb or insensitive to the damage being caused.

In Tucumcari, Police Chief Roger Hatcher is back on the job six weeks after using a Taser stun gun to deliver 50,000 volts to apprehend a 14-year-old girl, all to stop her from running away from her mom and sending text messages to her friends. Perhaps because of misleading information provided in training or various other issues, this young girl suffered unnecessary damage by the Taser. All in a day’s work and simply business as usual, without a second thought to the damage, both physically, psychologically, and to the community at large.

-Derek Garcia for The Kennedy Law Firm

Albuquerque Jury's Verdict in Favor of Officers in Home Invasion Case Overturned by the 10th Circuit - Feelings and Hunches Not a Basis of Cause

Joe Kennedy — Tue, 11 Aug 2009 16:16:27 -0800

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 ...

The Appeals Court in Denver overruled an Albuquerque jury’s decision in favor of the officer (which was erroneously upheld by the lower federal court).

Officers can’t arrest people in their own homes without a warrant, even if they have certain fears and suspicions of criminal activity. Having a hunch or a feeling that Danny Manzanares knew more than he was saying, Officer Sean Higdon decided to place handcuffs on Danny, hauling him out of his home and placing him in his patrol car.

Manzanares was then detained for more than three, perhaps up to seven hours in Higdon’s patrol car, while the officer drove him to the residence of his friend and primary suspect. The Court cited United States v. Place, 462 U.S. 696, 709-10 (1983) for the fact that a detention of over 90 minutes automatically constitutes an ‘arrest’ and cannot be newspoken into merely an ‘investigative detention.’ Officer Higdon expressed his feelings of fear that “Manzanares might have alerted Maestas (the rape suspect) to the police investigation if freed.” Id. at 22. Officer Higdon also expressed his fear of guns, testifying that “ ‘I was in somebody’s house. I don’t know anything about this person or what weapons he may have accessible to him in his own house.’ He further explained, ‘I felt the need to put him in handcuffs, so I mean, I wouldn’t have just put him in handcuffs for no reason.’ Higdon acknowledged that Manzanares was not suspected of a crime.” Id. at 4.

After thoroughly reviewing landmark U.S. Supreme Court cases, concerning castles in Payton, 445 U.S. at 601, Mapp v. Ohio, 367 U.S. 643 (1961), and Randolph, 547 U.S. at 115, and even going all the way back to 1928 in Olmstead v. United States, 277 U.S. 438, 463, Circuit Judge Lucero affirmed the long-standing tradition that there is simply no place for the subjective feelings of an officer in the law, especially when the Constitutional rights of citizens are at stake.

“We will not lower the drawbridge to invite police into a home without a warrant or an established substitute therefor whenever officers ‘feel’ that a resident might impede an ongoing investigation. Such an exception would stand the Fourth Amendment on its head. See Randolph, 547 U.S. at 109 (exceptions to the warrant requirement must be ‘jealously and carefully drawn’ (quoting Jones, 357 U.S. at 499). A jealous drawing of exceptions also was important in Melendez-Garcia, 28 F.3d at 1052 and Cortez, 478 F.3d at 1115-16. Even local, seemingly-futile and near-forgotten 2003 war resistance cases like Buck v. City of Albuquerque, 549 F.3d 1269, 1281-82 (10th Cir. 2008) was cited for the notion that “neither the officer’s subjective beliefs nor information gleaned post-hoc bear on this inquiry.” Manzanares at 12. Keylon v. City of Albuquerque, 535 F.3d 1210, 1218 (10th Cir. 2008) was asserted for the notion that there are areas of law which are strictly “objective legal questions,” and shouldn’t require years of painfully waiting for justice.

Inexplicably, Higdon’s attorney obtained jury instructions regarding an ‘accessory’ in the commission of a crime, aiding a felon to avoid arrest, and whether Manzanares “helped, encouraged, or caused the [sexual assault] to be committed.” Manzanares at 13, fn. 9. Not even officer Higdon alleged that Danny had anything to do with the crime at the time of the arrest, leading the Court to the inescapable conclusion that, “no reasonable jury could have found for Higdon on the basis of either of these statutes.” Id.

The Court continues, quoting Groh, 540 U.S. at 559, “ ‘[E]ven when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within” a home, police may not enter without a warrant absent exigent circumstances. Warrantless searches and seizures in the home are presumptively unreasonable. Groh v. Ramirez, 540 U.S. 551, 559 (2004). And, “[L]abeling an encounter in the home as either an investigatory stop or an arrest is meaningless because Payton’s requirements apply to all [such] seizures.” United States v. Reeves, 524 F.3d 1161, 1166 (10th Cir. 2008).

The case marks the third recent major reversal of a major civil rights case, beginning with Keylon, which could have settled much earlier (and at far less emotional cost to Plaintiffs) in the legal process, but for the City of Albuquerque’s blanket “no settlement” policy in civil rights cases. The case began on March 16, 2002 and is just now being remanded for a new jury trial on damages, which will include the costs of the appeal.

When asked for comment, Rio Rancho attorney Dennis Montoya said, “The principal value of the case is that it serves to more clearly define what police officers CANNOT do when they are dealing with an individual in his own home. The case outlines for police officers when they do and more importantly when they DO NOT have probable cause to arrest someone.”

The 10th Circuit also strictly followed the U.S. Supreme Court’s ruling in Jimeno, 500 U.S. at 251, regarding a Plaintiff who initially agrees to talk with officers by letting them into his home, but later revokes consent. “Similarly, the Court has clearly established that the scope of a consensual encounter is controlled by the consenting person.” Id. A citizen commanding a public servant to leave her own home should be regarded as a clear order. The law will not play games with an individual citizen’s right to end any encounter, which may have initially started with consent.

If “at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” retreating home must always be respected, less the foundations of our country crumble. Payton, 445 U.S. at 589-90.

-Derek Garcia for the Kennedy Law Firm

10th Circuit Rules: Lending a Red Sweater to a Friend in July Does Not Support Probable Cause in "Shoes on a Shoestring" Robbery

Joe Kennedy — Wed, 05 Aug 2009 15:37:00 -0800

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 ...

After three quick armed robberies in the area, Glenda and Sylvia were casually sitting outside of their apartment, quietly enjoying Albuquerque’s unique curbsides in July. An unrelated call to the police came from an area resident, reporting that two young females were acting “suspicious.” The basis of the area resident’s suspicion? “The call reported that the black female had put on a sweater given to her by Ms. Avila.... Concluding that Ms. Sherouse matched the description of the robber ... Officer Stone, handcuffed Ms. Sherouse ‘because she potentially was the one that was armed,’ patted her down, and placed her into the back of the police car. Aplt. App’x 715.” Id.

The two girls sued the police for violations of their civil rights. A jury found in favor of the Defendants and the City of Albuquerque, believing that because of a positive, but questionable, eyewitness identification of Glenda by witness Inez Rubio, the officers had enough probable cause to make the arrests. The unduly suggestive identification took place while Sherouse was in the back of the police car, and not utilizing a double-blind line-up or photo array, making it per se faulty compared with national policing standards. One officer wrote in his report that, “[n]o one was able to positively identify Sherouse as the offender. All witnesses were uncertain.” Id. at 10. The witnesses also testified at trial that police misrepresented whether they had positively identified Ms. Sherouse. Still, one of the witnesses acknowledged at trial that she had told the officer that Ms. Sherouse “looked similar to the robber.”

The lower court issued Jury Instruction 12, which reads, in part: “A police officer’s probable cause determination is not negated if the officer reasonably but mistakenly believed that probable cause existed at the time of the arrest.” Id. at 5. Reviewing this instruction, the 10th Circuit wrote that, “whether a situation indicates probable cause for arrest depends on an officer’s subjective understanding of the facts, as well as the objective application of the law to those facts.” Citing United States v. DeGasso, 369 F.3d. 1139, 1144-45 (10th Cir. 2004), the court said that while an officer’s reasonable but mistaken understanding of the facts justifying a search or seizure does not negate the legitimacy of a probable cause determination, an officer’s reasonable but mistaken understanding of the applicable law he is enforcing does. " Id. at 6.

In this case, because a teenage girl giving a red sweater to her friend is still not against the law in America, judgment as a matter of law was appropriate against the officers, as to Sylvia. In the words of Judge McConnell, “Ms. Avila may have retrieved the sweater so the two could leave, or she may have provided it to her friend for warmth. Where an officer observes inherently innocuous behavior that has plausible innocent explanations, it takes more than speculation or mere possibility to give rise to probable cause to arrest.” Id. at 12.

In practical terms, the City of Albuquerque will have to pay attorneys’ fees at both the trial and appeals level, for a matter of law that could have been settled much earlier in the legal process. The case and others like it is leading some to question Mayor Martin Chavez’s “no settlement” policy, when obviously unlawful arrests take place. The City is one of the few in the country where citizens must suffer several years before receiving compensation for clear violations of their civil rights.

Overall, because of the mistaken identification made by a third party of Glenda, the jury’s determination in the officer’s favor will stand. The Court believed that Officer Stone had enough probable cause to make the arrest of the African American girl in a borrowed red sweater, despite the fact she was suggestively identified (there was no other possibility in the back of a police car). One wonders out loud: if Avila were black, and not Hispanic, whether the Court would believe there was probable cause to arrest? Perhaps every black female under the age of 30, in the vicinity of Shoes on a Shoestring that fateful day in July, had ample cause to fear wrongful arrest by City officers.

-Derek Garcia for The Kennedy Law Firm

U.S. Supreme Court Clarifies Standards for School Strip Search Cases

Joe Kennedy — Thu, 25 Jun 2009 15:50:03 -0800

Today a 13 year-old student from Arizona won an important victory for the privacy of minors in a school setting. Middle-schooler Savana Redding was accused by a fellow student of distributing prescription-strength drugs to other students. She was forced to endure a humiliating strip search by Helen Romero, the school administrator, in addition to a second search by Peggy Schwallier, the school nurse. Savana’s mother, April Redding, sued on behalf of her daughter, while simultaneously managing to avoid any liability issues associated with her minor daughter allegedly throwing unsupervised parties in her own house, where alcohol and drugs were present. In the just-released slip opinion in Safford Unified School District #1, et. al. v. April Redding, 2009 WL 178472, the Court held that the search was a violation of Savana’s Fourth Amendment rights, but also that school officials were entitled to qualified immunity.

In a carefully reasoned opinion by Justice Souter, the Court found the facts to be such:

    “The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.” Id.

    The school had previously received reports from one Jordan Romero, another student, who had told the principal and Wilson that students were bringing drugs to school and that he had gotten sick from some pills. He had also attended a party where alcohol existed in greater quantity than parental involvement. The school had already found illicit substances on Marissa, Savana’s friend. Outside of the report of her ‘friend’ Marissa, who was already definitively caught with drugs, Wilson and the school had no independent basis for believing that Savana had any pills on her person, let alone in her underwear.

    “At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.” Id.

    The Court reviewed prior holdings in New Jersey v. T.L.O., 469 U.S. 325 (1985), and qualified immunity claims by Saucier v. Katz, 533 U.S. 194, 200 (2001) to determine that a Fourth Amendment violation had occurred. The Court cited evidence that strip searches and other privacy violations can result in serious emotional and psychological damage to young people:

    “Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al. as Amici Curiae 6-14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can ‘result in serious emotional damage.’). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be ...”(Souter, J.) Id.

    Sympathetic to the notion that severe violations of privacy can, according to leading psychological literature, actually lead to delinquent behavior, loss of self-respect and dignity, loss of respect for society’s rules (and Fourth Amendment protections), and a generally anarchistic sense of being out of control, Justice Stevens would have even gone so far as to deny qualified immunity from liability of the school itself, including the principal in his personal capacity:

    “Nothing the Court decides today alters this basic framework. It simply applies T. L. O. to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. I have long believed that “ ‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.’ ” Id., at 382, n. 25 (Stevens, J., concurring in part and dissenting in part) (quoting Doe v. Renfrow, 631 F. 2d 91, 92-93 (CA7 1980)).” Id. (Stevens, J., concurring and dissenting in part).

    Justice Ginsburg, outraged by the school’s presumption of authority, lambasted the conduct of officials:

    “Wilson had no cause to suspect, based on prior experience at the school or clues in this case, that Redding had hidden pills-containing the equivalent of two Advils or one Aleve-in her underwear or body. To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity. In contrast to T. L. O., where a teacher discovered a student smoking in the lavatory, and where the search was confined to the student’s purse, the search of Redding involved her body and rested on the bare accusation of another student whose reliability the Assistant Principal had no reason to trust.” (Ginsburg, J.) Id.

    Justice Thomas took issue with what he considered an uncommonly silly and unworkable rule adopted by the Court, which essentially places federal judges in the shoes of middle school teachers and administrators. Reminiscing on the bygone days of in loco parentis, where teachers had all the authority of parents for “commanding obedience, to control stubbornness, to quicken diligence, and to reform bad habits,” (citing State v. Pendergrass, 19 N.C. 365, 365-366 (1837) employing corporal punishment), Justice Thomas would have found that the search did not violate the Fourth Amendment.

    Justice Thomas, known for his opposition to affirmative action, warned the Court that it was recklessly elevating the decision-making capacity of a teenager, perverting it into something actually deserving Constitutional protection:

    “By declaring the search unreasonable in this case, the majority has ‘surrender[ed] control of the American public school system to public school students’ by invalidating school policies that treat all drugs equally and by second-guessing swift disciplinary decisions made by school officials. See Morse, 551 U. S., at 421 (Thomas, J., concurring) (quoting Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 526 (1969) (Black, J., dissenting)).” Id. (Thomas, J.) (emphasis added).

    In attempting to fight back against an apparent victory for large pharmaceutical companies, which are addicting children to prescription pain killers (used for recreational purposes), at an alarming rate, Justice Thomas warned the Court that it was today not protecting the Constitution, but instead “announc[ing] the safest place to secrete contraband.” Id. He then cited several alarming statistics about the abuse of prescription drugs and their deadly consequences, including their increasing use in suicidal behavior:

    “ ‘[t]eenage abuse of over-the-counter and prescription drugs poses an increasingly alarming national crisis.’ Get Teens Off Drugs, The Education Digest 75 (Dec. 2006). As one study noted, “more young people ages 12-17 abuse prescription drugs than any illicit drug except marijuana-more than cocaine, heroin, and methamphetamine combined.” Executive Office of the President, Office of National Drug Control Policy (ONDCP), Prescription for Danger 1 (Jan. 2008) (hereinafter Prescription for Danger). And according to a 2005 survey of teens, “nearly one in five (19 percent or 4.5 million) admit abusing prescription drugs in their lifetime.” Columbia University, The National Center on Addiction and Substance Abuse (CASA), “You’ve Got Drugs!” V: Prescription Drug Pushers on the Internet 2 (July 2008); see also Dept. of Health and Human Services, National Institute on Drug Abuse, High School and Youth Trends 2 (Dec. 2008) (“In 2008, 15.4 percent of 12th-graders reported using a prescription drug nonmedically within the past year).” Id. (Thomas, J.)

    Pain killers have a long history of being the most readily accessible method of ending one’s own life. Today’s decision means school administrators no longer have parental authority for “they are tasked with ‘watch[ing] over a large number of students’ who ‘are inclined to test the outer boundaries of acceptable conduct and to imitate the misbehavior of a peer if that misbehavior is not dealt with quickly.’ Id., at 352. In such an environment, something as simple as a ‘water pistol or peashooter can wreak [havoc] until it is taken away.’ Ibid. The danger posed by unchecked distribution and consumption of prescription pills by students certainly needs no elaboration.” Id. (Thomas, J.).

    Essentially calling teenagers stupid, and parents negligent in the care of their own children, Justice Thomas warned that “[t]eenagers are nevertheless apt to ‘believe the myth that these drugs provide a medically safe high.’ ” Id. Prescription drugs are essentially the new cigarettes, supported by multi-million dollar ad campaigns.

    As some drug dealers, already profiting from extremely rewarding and lucrative careers in drug dealing (more so than the law), also don’t have the attention spans to absorb exactly what-sized container is now the safest to secrete contraband (See Horton v. California, 496 U.S. 128, 141 (1990), the search must be limited to the areas where the object of that infraction could be concealed), Justice Thomas’s wise warnings, coming at the end of the opinion, will probably go unread anyway:

    “(‘In 2002, abuse of controlled prescription drugs was implicated in at least 23 percent of drug-related emergency department admissions and 20.4 percent of all single drug-related emergency department deaths’). At least some of these injuries and deaths are likely due to the fact that ‘[m]ost controlled prescription drug abusers are poly-substance abusers,’ id., at 3, a habit that is especially likely to result in deadly drug combinations. (“Boomers made marijuana their ‘gateway’ … but a younger generation finds prescription drugs an easier score”); see also National Survey 17 (noting that teens report ‘that prescription drugs are easier to buy than beer’).” (Thomas, J.). Id.

    Justice Scalia was uncharacteristically mum, filing a concurrence with Justice Souter without issuing an opinion. In an decision noted more for its absence than presence, how the new standards apply to other types of contraband (outside of drugs) is left untested.

    Perhaps the best means of preventing deadly drug abuse by teenagers and adults alike, is to actually make the Fourth Amendment powerful enough to deter invasions of privacy, to provide people with enough sense of self-worth that they too are actually worthy of protection through the Constitution. Today the Court stopped short of actually punishing the principal’s profound lack of respect for the bodily integrity of Savana Redding.

    -Derek Garcia for the Kennedy Law Firm

Supreme Court Rules in Favor of Rights Inside Vehicles

Joe Kennedy — Fri, 12 Jun 2009 13:56:40 -0800

     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 ....

    Gant’s license had been previously suspended and there was an outstanding warrant for his arrest for driving with a suspended license. Gant pulled up in the driveway of a house suspected of being a hot spot for drug trafficking, got out of his car on foot, and approached the officers. At that point, he was arrested and handcuffed immediately.
    Gant was locked in the backseat of a patrol car, handcuffed, when his own vehicle was searched. A gun was found in the interior of his car, along with a bag of cocaine in the pocket of the jacket on the backseat. Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers while he was handcuffed in the patrol car. Additionally, he was arrested for a traffic offense (driving with a revoked license), not for trafficking drugs.
    Gant was eventually charged with two offenses - possession of a narcotic drug for sale and possession of drug paraphernalia (the plastic bag in which the cocaine was found). When asked why the search was conducted, Officer Griffith responded: “Because the law says we can do it.” Gant, 129 S. Ct. at 1715. Justice Scalia, after proverbially clearing his throat, was forced to step in and lay down the law:
    “It seems to me unacceptable for the Court to come forth with a 4-to-1-to-4 opinion that leaves the     governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches -- which is the greater evil. I therefore join the opinion of the Court.” Id. at 1725.
    In further clarifying the rule, civil rights attorneys hailed the decision as a true victory for the Constitution. Unclear is how this new vehicle rule clarification might apply to travel by less conventional methods, such as bikes, trains, or even horseback.

-Derek Garcia reporting for the Kennedy Law Firm

The Fourth Amendment Prevails in Illegal Search of Family's Home

Joe Kennedy — Thu, 14 May 2009 16:02:39 -0800

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 . . .

In addition to having their property unlawfully searched, (in what the court found were clear violations of the Fourth Amendment to the United States Constitution), one officer also ordered the stop of the criminal suspect’s sister-in-law’s car, based on little more than a familial relationship. In a striking and detailed opinion by Judge Lucero, the court held that a familial relationship was “insufficiently particularized to justify invading an individual's reasonable expectation of privacy.” Id. at 2. George L. Bach, Jr. argued the case (Jane Gagne and Philip B. Davis with him on the briefs), with the ACLU of New Mexico for the Plaintiffs-Appellees.

Background

Bernalillo County Sheriff’s deputy James McGrane was tragically shot and killed on March 22, 2006, while conducting a routine traffic stop. Investigators later determined that the stopped truck belonged to Michael Paul Astorga, who was already wanted in connection with the November 2005 homicide of Candido Martinez. A large manhunt ensued, following a determination that Astorga was the primary suspect in the shooting.

Sheriff’s Office investigators tracked Astorga to #31 Lark Road, about 15 miles from the scene of the homicide. Neighbors informed investigators that someone matching the suspect’s description had recently moved in with his pregnant girlfriend. After searching the area, officers discovered the truck Deputy McGrane had stopped the night of his death.

Investigators then sought out Marcella Poolaw “Astorga,” who was listed as the suspect’s spouse and emergency contact, following a prior arrest. Marcella was the daughter of Rick Poolaw, a retired New Mexico Police Officer. When she failed to turn up at her own registered address, Lieutenant Marcantel telephoned Rick Poolaw directly, whom he knew as an acquaintance. Rick informed Marcantel that she had spent the night on March 21 at Rick’s house (343 Calle Del Banco), but that she could not be located now, and had uncharacteristically called in sick to work. Rick Poolaw lived at the residence with his wife Cindy and daughter Chara.

Based on this information, BCSO investigator Hix prepared his affidavit for a search warrant, asserting what lawyers argued was a tenuous connection between Astorga and the Poolaw’s property. Hix asserted that a reasonable assumption could be made that Astorga may have hidden evidence in the home, due to the family connection.

A New Mexico judge issued the search warrant for the Poolaw residence based on the assumptions Hix offered. Sergeant Scott Baird supervised the search, but Marcantel was not present. During the search, Rick Poolaw (the retired officer) and Cindy were handcuffed outside their home and subjected to a humiliating search of their house and property. The search produced nothing of use in the investigation.

A few days later, Officer Marcantel learned that Rick’s daughter Chara had called her mother and asked whether she could "get in trouble" for having a gun. Relying on, "the fact that Chara was a loved one of Michael Paul Astorga's wife" and "her admission that she had a gun," Marcantel ordered her stopped to determine whether the gun was the McGrane homicide weapon. Chara was detained, handcuffed, and held in a squad car while her car was searched, without a warrant. After the gun found in her car was determined not to be the murder weapon, she was released. As a general statement of law in New Mexico, it was not illegal for the daughter to lawfully carry a weapon inside her car. See N.M. Stat. § 30-7-2(A).

Legal Claims

Alleging flagrant violations of the Fourth Amendment, civil liberties lawyers brought the §1983 action in Federal Court. Plaintiffs asserted that both the warrant to search the property and the stop of the Poolaw’s daughter Chara lacked probable cause, the District Court granted summary judgment in the Poolaw’s favor, denying the individual defendants’ claims of qualified immunity. The Federal Court found the information asserted by the officers "provided only inferences and assumptions of dubious reliability." Marcantel and Hix also argued that because they were not physically present during the time of the unlawful searches, they could not be held responsible for the acts they set in motion. The Tenth Circuit rejected the defense as well, finding that liability extended to those who provided information.

Confining the appellate review to the legality of Hix’s affidavit, the District Court reviewed the sufficiency of the warrant de novo, paying great deference to the probable cause determination made by the judge who issued the warrant. United States v. Perrine, 518 F.3d 1196, 1201 (10th Cir. 2008). Generally, reviewing courts will uphold a warrant if the issuing judge had a "substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing," citing Illinois v. Gates, 462 U.S. 213 (1983). The court also thoroughly reviewed holdings surrounding the Leon doctrine, which provides that evidence seized pursuant to a warrant issued by a neutral and detached magistrate, later found invalid, is admissible if the executing officer acted in objective good faith and with reasonable reliance on the warrant. See United States v. Leon, 468 U.S. 897 (1984). Leon applies a four-part inquiry to determine good faith reliance, whether “1) the issuing judge ‘was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth’; 2) the issuing judge ‘wholly abandoned his judicial role’; 3) the warrant was ‘so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid’; and 4) ‘[the] affidavit [is] so lacking in probable cause as to render official belief in its existence entirely unreasonable.’ Id. at 923.

Holding that a mere familial relationship does not establish probable cause, and that reliance on familial relationship for imputing criminal behavior is unreasonable, the Tenth Circuit affirmed the District Court’s ruling, denying qualified immunity and granting summary judgment to Plaintiffs. In addition, “Chara's status as Astorga's sister-in-law and her conversation with Cindy about a gun did not establish a reasonable suspicion that she was committing or had committed a crime.” Mere ‘talk’ about guns, unconnected with criminal activity, does not establish reasonable suspicion.

In a vigorously written dissent, Judge O’Brien would have found that there was probable cause to search the property, there were no Constitutional violations, and because of the good faith reliance exception, the seizure of Rick and Cindy was lawful. In addition, he would have found enough reasonable suspicion to justify the stop of Chara Poolaw. According to Jane Gagne, attorney for the plaintiffs, the Poolaw defendants are seeking a rehearing of the case en banc.

Attorney Frances Crockett, who helped prepare the briefs at the District Court level, said this about the importance of the case: "They relied on many assumptions. Fortunately, our Constitution does not."

-Reporting by Derek Garcia for the Kennedy Law Firm

Bertha Keylon secures $60,000 verdict in wrongful arrest claim

Joe Kennedy — Thu, 30 Apr 2009 11:49:34 -0800

In a case tried at the U.S. District Court for the District of New Mexico over two days in January of this year, Bertha Keylon -- who persevered for four years to get justice from the City of Albuquerque -- secured a $60,000 verdict stemming from a 2003 wrongful arrest charge.

Ms. Keylon was wrongfully arrested on September 28, 2003 in Albuquerque and charged with resisting arrest and concealing her identity. At the initial trial, the Court ruled against the Kennedy Law Firm's argument that Ms. Keylon should win her case as matter of law. At the initial trial, the jury returned a verdict for the defense.

The Kennedy Law Firm appealed and won. The Tenth Circuit appeals court found error with the District Court decision to deny Ms. Keylon her motion for judgment as a matter of law and with jury instructions given at the first trial. At the second trial, Ms. Keylon was the lone witness and testified that the arrest diminished her enjoyment of life. The arrest made her reluctant to travel from her home out of fear of rogue police officers. The $60,000 verdict included a sum of $20,000 for punitive damages.

Jury returns $1000 verdict against City of ABQ Police

Joe Kennedy — Wed, 25 Mar 2009 19:01:27 -0800

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.

Kennedy Law Firm Wins Tenth Circuit Appeal

Joe Kennedy — Tue, 16 Dec 2008 13:51:47 -0800

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.