Suit Against City, Officer Dismissed

By Scott Sandlin, Journal Staff Writer

The city of Albuquerque and a city police officer are the winners in an excessive force lawsuit brought by the father of a girl shot with a Taser gun in 2000.
After two days of jury trial this week in federal court in Roswell, Judge Bobby Baldock granted a judgment Thursday in favor of the city before the defense presented its case.
The lawsuit was filed in 2002 by Andrew Aragon on behalf of his daughter, Christina Aragon, a high school student who was planning to attend a party at a vacant house. APD Officer Jeff Ferner shot the student as she attempted to flee from the home.
Baldock, a senior judge on the U.S. 10th Circuit Court of Appeals, takes some New Mexico federal district court cases.
Baldock dismissed the lawsuit after ruling there was "no legally sufficient evidentiary basis on which a reasonable jury could find for the plaintiff."
According to the lawsuit, Christina Aragon was with friends who "believed they were supposed (to) open the house for a band to set up their equipment."
The Oct. 21, 2000, party at a home in the 900 block of Solano NE had been advertised through a flier circulated at Sandia High School. A copy of the flier was faxed to the Albuquerque Police Department because of satanic references, said Luis Robles, who represented Ferner at trial.
The students did not have permission to be in the vacant house, and APD officers waited at the home to see if anyone would illegally enter, the defense said.
Officers saw several individuals in Hidden Park, which is behind the home, jump the fence and attempt to enter the home.
After Aragon was shot, she underwent emergency surgery to remove metal barbs shot by the Taser, the complaint states. The barbs are connected to a handheld unit by thin wires that pulse electrical current into the target.
"His intention was to hit her in the back (only with the Taser charge), but because she was running down steps one of the barbs hit her in the back," Robles said.
In dismissing the case, Baldock also ruled the city can recover its costs from the plaintiff.

Suits Say Ex-APD Officer A Rapist

By Scott Sandlin, Journal Staff Writer

Albuquerque police officer Christopher Chase was fired in 2003 after allegations of rapes and beatings while on duty led to his indictment on criminal charges.
As of this week, three civil lawsuits also have been filed against Chase or the Albuquerque Police Department. One lawsuit claims APD hired Chase even though he failed a psychological exam.
Mitsey Ramone, who accused Chase of sexually assaulting her, contends in a lawsuit that APD was negligent in hiring and keeping Chase, who "appears to be a serial rapist." The suit compares Chase to "an unchained vicious animal" who preyed upon women.
In answers filed by the contract attorney defending two of the civil cases, Chase and APD deny the claims.
A state District Court grand jury indicted Chase, 29, in June on 32 counts of criminal sexual penetration, battery and tampering with evidence. The criminal case involves allegations by 11 individuals of both sexes, some claiming they were beat up and others that they were sexually assaulted between September 2001 and January 2003.
The criminal case against Chase is awaiting trial in state District Court, where it is assigned to Judge Denise Barela Shepherd.
Ramone's civil lawsuit was filed in September by the Blake Law Firm and attorney Raul Lopez. It claims Chase failed a psychological test administered in conjunction with the APD selection process.
Ramone's claims stem from the Sept. 9, 2001, stop of a car in which she was the passenger. She says she was forced to perform sexual acts on Chase, after which he told Ramone to use sanitizing hand wash he had in his police unit.
The latest civil lawsuit was filed this week in U.S. District Court by Mary Han and Paul Kennedy on behalf of Cynthia Seeley, who also claims she was sexually assaulted by Chase.
Seeley and another woman were in a fight at an apartment in February 2002 when one of the women called police and Chase and other officers responded, the suit says.
Chase told them one needed to leave and "cool off," and Seeley did, the suit says. It says he then detoured Seeley into the back seat of his patrol car, drove down a deserted alley after midnight near the Marriott on Louisiana and took off his equipment belt, forced her to bend over the back seat and raped her.
Chase allegedly then drove away leaving her "alone and crying in the dark, deserted alley."
The suit seeks unspecified compensatory and punitive damages for excessive force and violations of Seeley's rights to due process and against unreasonable search and seizure.
In a lawsuit filed in state court by attorney Brad Hall, La Cueva High School student Matthew M. Bauer, 17, alleges that he was "inexplicably detained ... searched (and) terrorized" by Chase, who Bauer also says threatened to kill him.
Hall takes aim in the suit at Mayor Martin Chávez's policy of refusing to settle any lawsuits against police in the allegations.
"APD agency investigative machinery eventually identified defendant and relieved (him) from duty," the suit says. "Although plaintiff would rather settle this case, and although this case is one that could and should settle, the city currently maintains an official policy of bringing all police cases to trial. Hence this lawsuit and the need for the taxpayers to pay private attorney's fees to litigate a case normally handled by professional risk managers."
Because Bauer is related to a high-ranking APD official— he's the nephew of Public Safety Director Nick Bakas— he didn't run away when a police officer approached him and other teens near the Sportsplex in September 2002, according to the suit.
Bauer was standing by his car with about 10 La Cueva High School students who were talking and listening to music at about 10 p.m. when the police car approached on a dirt trail with its spotlight on and emergency lights flashing, Bauer's suit says.
"All other teens scattered on foot or in their cars," the suit says. "(Bauer's) passenger, the son of a city councilor, ran into an open field and hid."
Bauer responded to an order to get on his knees with his hands on his head and answered questions, then watched Chase search his wallet and car without a warrant and tell him to "get the (expletive) home," the suit says.
Bauer's friend, Brock Winter, called Bauer on his cell phone to pick him up and Chase was doing so, still in the Sportsplex area, when Chase again stopped him, shone a flashlight in his face and, when Bauer attempted to explain he was getting his friend, struck him in the center of his forehead with the flashlight, according to the suit.
After talking with his mother and uncle, Bauer was seen by a paramedic, reported the incident to police and gave a statement to Internal Affairs in an effort to identify the officer, the suit says.

Police Panel Rules in Protest Conduct

By Lloyd Jojola, Journal Staff Report

Unreasonable force was used by a police officer during an anti-war demonstration last year, the Police Oversight Commission has said.
Thursday's decision supports the opinion of Independent Review Officer Jay Rowland but conflicts with Albuquerque Police Department Chief Gil Gallegos' findings.
Gallegos reviewed the complaint filed by Lane Leckman and does not believe the force used was excessive. Leckman, a physician, appealed the chief's findings to the commission.
The commission also ruled the officer failed to identify himself, an alleged standard procedure violation that Rowland and Gallegos said wasn't proven.
As a result of its action, the commission will write a letter to Gallegos asking him to reconsider his findings, Rowland said.
Police spokesman Jeff Arbogast said Friday the department had not seen the commission's written decision and could not immediately comment on the commission's action.
The incident occurred during a March 20 anti-war demonstration at Central near the University of New Mexico campus.
The crowd, marching west on Central, swelled into the hundreds and were met by police dressed in gas masks and helmets. Police arrested 17 people and cleared the street with tear gas.
Leckman said he was by the bookstore, standing on the sidewalk away from the street, when an officer ordered him to move.
" 'I'm standing on the sidewalk, what is the problem?' '' he said he told the officer, recounting the incident to the commission.
"The next thing I knew, without another word, without any explanation, his baton in both hands, he hit me full force on the chest, knocked me into my fiancee ... knocking her over and bruising her hip. I turned around to pick her up. Turned around and asked him what his name was. He looked at me and did not answer."
Police accounts differ, according to a synopsis of an investigation conducted by Independent Review Office staff. One officer interviewed said, "He did see a man and woman trip over some bicycles in a bike rack and fell. He denied that he or any other officer pushed these people."
A sergeant interviewed said he also saw a man and woman fall over a bike rack. "He didn't see anyone hit them just before they fell," the synopsis states.
Leckman also claims a 911 operator hung up on him when he called police. According to the investigation synopsis, 911 tapes were reviewed and it was discovered that one operator hung up on three callers from the protest.
"The operator did not ask if the callers were injured," the review states. "This operator also called her daughter and played the tape of a male caller choking and gasping. She then laughed about the man's condition."
The 911 operator was found to be in violation of two standard operating procedures, including one that pertains to the use of telephone etiquette.
Arbogast said the operator was disciplined.

Former Deputy Back in Prison

By Scott Sandlin, Journal Staff Writer

Darryl Burt appeared again in court this week on new drug charges. It was the third time the former Bernalillo County sheriff's deputy has faced criminal prosecution.
Burt's fall from grace began in April 1995 with his indictment on 34 counts related to alleged sexual abuse of a 16-year-old boy.
He eventually pleaded guilty to two misdemeanor counts, attempting to contribute to the delinquency of a minor and attempted sexual contact with a minor, but prosecutors said at the time that he had abused his position as an officer to prey on young Mexican nationals.
The next year he was back in court facing federal cocaine distribution charges. He pleaded guilty to possession with intent to distribute and was sentenced to two years and nine months in the drug case.
Burt completed his prison time and supervised release and was working when he was indicted in August on a charge of conspiracy to distribute heroin. He pleaded guilty to all three counts Tuesday.
Terms of the plea agreement call for Burt, 40, to spend eight years in federal prison.
The indictment alleged Burt conspired with Martin Rivas Munguia to distribute more than 100 grams of heroin in Bernalillo and Santa Fe counties from Sept. 29 to Dec. 6, 2002.
Munguia, who also has entered a guilty plea, is set for sentencing in February, but he will be subject to deportation because he was not legally in the United States, according to the prosecution.
The case was the result of an undercover operation by the FBI and New Mexico State Police that included a wiretap and surveillance, according to the U.S. Attorney's Office.

City May Pay $450,000 for Police Dog Bite

November 7, 2002
Albuquerque Journal

The city could end up paying more than $400,000 to resolve an excessive force lawsuit brought by a teenager who was bitten by an Albuquerque police dog.

A federal court jury late Tuesday awarded 19-year-old Moriah Smith $50,000 in damages against APD officer Andrew Lehocky after concluding he violated her civil rights when his police dog, Bart, attacked Smith.

That set up a second phase of the trial to determine the city's liability based on APD policies and supervision of police dogs. Smith's attorneys had subpoenaed Mayor Martin Chávez and Police Chief Gil Gallegos to testify.

Just as those proceedings were to begin Wednesday, lawyers for Smith and the city reached a deal and the jury was dismissed.

"We looked at the verdict (against the officer) and the city decided not to appeal it," said Kathryn Levy, an assistant city attorney. She wouldn't elaborate. The city, which was also named in the lawsuit, is responsible for paying the $50,000 against the officer and attorneys fees in the case.

Smith and her lawyers, Brad Hall and Joe Kennedy, called the verdict and resolution a victory.

"The plaintiff believed that police should warn people that they're going to use an attack dog and if they don't warn them they should use a leash or a muzzle because it's a serious level of force," said attorney Brad Hall. "We appreciate the jury figuring out the big picture."

Smith, then 16, was unarmed and hiding from police at a Northeast Heights schoolyard in 1999 when Lehocky unleashed the 80-pound Belgian Malinois to find her. The dog clamped down on Smith's right leg, causing injuries that resulted in three surgeries.

Police were investigating a report that Smith had been seen with a boy who had fired a gun at a group of youths at a nearby park.

According to testimony, no warning was given before the dog was unleashed. Smith later was charged with trespassing on school property.

Lehocky's lawyers argued that Smith was responsible for events that led to the bite. They said Lehocky acted reasonably in unleashing the dog to find a suspect who possibly was armed and dangerous.

Smith testified that she would have surrendered had she been warned. Because they prevailed on the civil rights claim, Smith's lawyers were entitled to reasonable attorney fees and costs. The agreement allows an arbitrator to determine the amount the city will pay Smith's lawyers.

Kennedy said the total price tag — including the $50,000 for Smith — could run as high as $450,000.

As part of the deal, APD Chief Gallegos and Schultz agreed to review APD policies on when and how police dogs are deployed, Hall said.

"We have confidence that they'll take us seriously," said Kennedy.

Smith said she will now have money to pay for plastic surgery on the deep scar the bite left.

"It wasn't (about getting) the money for me," said Smith, who now lives in Pennsylvania. "It was the moral of the whole situation. These dogs shouldn't be allowed to bite people."

As part of the agreement, an official judgment against Lehocky won't be entered in court records.

"In a future case (such a judgment) could have been used by another lawyer against Lehocky," said the officer's attorney Luis Robles.

Lehocky still faces three other dog bite lawsuits, Robles said.

Robles said his client was "very disappointed" by the jury verdict at the conclusion of the four-day trial.

"I see it as a compromise verdict," Robles said, noting that the jury gave Smith nothing for pain and suffering and awarded no punitive damages.

Robles said Smith's plastic surgeon testified that surgery to reduce the scar would cost about $50,000.

"I would have thought that if they thought Officer Lehocky did something he shouldn't have, they would have given her more than just the money to fix her scar," Robles said.

Jury verdicts in dog bite cases nationwide have tended to favor the police, experts say.

Earlier this year, Lehocky was exonerated in two lawsuits involving police dog bites. In 2000, the city settled a dog bite claim against him for $210,000.

That led to Lehocky, a 20-year-veteran, transferring from the dog unit to the SWAT team. A year earlier, he received an award from then-Police Chief Jerry Galvin for stellar work in the K-9 unit.

Kennedy and Hall on Wednesday had planned to introduce evidence of prior injuries caused by police dogs, how police review such cases, and APD police dogs' failure to guard and bark as trained.

City Attorney Bob White said the agreement didn't conflict with the mayor's policy against settling civil rights cases filed against APD.

He said Chávez never meant to imply the city would appeal all jury verdicts against the police. The no-settlement rule, he said, applies to pre-trial settlements. Chávez instituted the settlement ban in January, saying allegations of misconduct should be aired publicly and not behind closed doors by lawyers.

Sandoval County Deputy Guilty of Battery

By Chris Vogel, Journal Staff Writer

A Sandoval County Sheriff's deputy has been acquitted of charges of attempted criminal sexual penetration and false imprisonment.
But Clinton Weatherspoon, 33, was found guilty Friday of misdemeanor battery and will be placed on leave without pay.
Charges against Weatherspoon stemmed from a December 2000 incident in which his ex-girlfriend — also the mother of his child — had told neighbors and police that Weatherspoon had assaulted her and tried to have sex with her, police reports said.
But the reports said statements from the victim, who lives in Albuquerque, were contradictory and said she did not want to aid in the prosecution of Weatherspoon.
"We're pleased with the conviction on the battery charge," Assistant 2nd Judicial District Attorney Antonio Maestas said. "The victim did not want to prosecute, and when she took the stand she recanted her original story. But the facts presented contradicted her recantation, and the jury convicted him."
The trial was held in 2nd Judicial District Court.
Weatherspoon's attorney, Timothy Padilla, said, "Our defense was he didn't do it, that it just didn't happen. I think he should have been acquitted on everything."
According to police reports, Weatherspoon and the victim spoke on the phone on Dec. 26, 2000, and agreed to meet to discuss child support.
In an initial statement made to Albuquerque police officer Cecil Knox, the victim said that when Weatherspoon arrived he told her he wanted to have sex, police reports said. The victim said that when she refused, Weatherspoon kept her from fleeing by "grabbing her, shutting the door and banging her against the walls of the apartment," reports said.
Weatherspoon was on duty at the time, according to the report.
During a later interview, the victim said she told Weatherspoon, "If you really want to be with me, why don't you tell your girlfriend you're with me?" police reports said.
When Weatherspoon, dressed in his sheriff's uniform, responded that he couldn't tell his girlfriend, the victim said she began grabbing at items on his duty belt, police reports said.
The victim said a magazine of bullets fell from the belt, and the two scrapped on the floor for it, reports said.
She told a neighbor that Weatherspoon tried to have sex with her, but later told police that was not true, reports said.
Police were notified of the incident by the victim's neighbor, who said she heard "banging" from the victim's apartment and a female yelling for help, police reports said.
Also, in a recorded 911 call, the victim said she and Weatherspoon had fought, but she did not want to press charges, police reports said.
Weatherspoon told police that the woman became "hostile" when he said he was still seeing his girlfriend, and she said she was going to tell police he raped and battered her, police reports said. Weatherspoon said he never hit the woman.
"I think the battery conviction was a compromise," Padilla said. "(The jury) said Mr. Weatherspoon may have touched her when he went to get the magazine. She wasn't injured. ... There were just scratches, and she could have gotten those grabbing for his belt."
In terms of the lone battery conviction, Maestas said, "In my opinion, the jurors were convinced that the victim's statements to the 911 operator and to police officers immediately thereafter were closer to the truth than her statements on the witness stand."
Weatherspoon will be sentenced in early August, Maestas said. He faces a maximum of six months in jail.
Sandoval County Sheriff Ray Rivera said Monday afternoon he placed Weatherspoon on administrative leave without pay for a minimum of 30 days. Once Weatherspoon is sentenced, Rivera said, he will re-evaluate the situation.

Police-Dog Bitings Cost City More Than $940,000

May 26, 2002

ALBUQUERQUE (AP) — Police dogs have taken a $725,000 bite out of city coffers from payouts to victims of K-9 attacks, and it could rise to $942,000 if defense lawyers get the amount they’ve billed.

Seven APD dog-bite lawsuits are pending in court, including two filed last week, and dozens of citizens who were neither armed nor violent have been bitten, but police say the practice is justified.

Civil rights lawyers disagree.

Moriah Smith, 16, a witness to a shooting incident, says she was crouching behind a row of bushes in a schoolyard when an 80-pound police dog attacked her without warning, biting into her calf and shaking it violently, permanently disfiguring it.

Smith is one of 107 people bitten by APD dogs since 1996, and is among people who have sued the city over those bites.

Officers have claimed in several cases that they allowed their dogs to continue biting suspects for the officers’ own safety. In one case, the Albuquerque Journal reported Sunday, an unarmed suspect was ordered to walk toward an officer with a police dog still attached to her backside.

Sometimes, police dogs have even attacked sleeping people, generally transients, who were not accused of a crime, the newspaper reported.

According to APD policy, dogs can be deployed when a person flees, resists arrest or poses a threat, depending on the severity of the crime.

Police and their lawyers say the people who are bitten often are complicit in their refusal to obey lawful police orders.

‘‘There becomes a point in time where these people have to take responsibility for their own conduct,’’ said Albuquerque attorney Luis Robles, who defends APD officers in court. ‘‘There were a number of times they could have complied with police and they didn’t. There will be consequences, but they brought it upon themselves.’’

On Feb. 26, 1999, police considered Smith a potential felon. After she was attacked, she was arrested for criminal trespass. Her lawyers allege the attack was excessive force. They want the force to curb their dogs, even muzzle them on some searches.

‘‘There’s no reason for dogs to bite people,’’ said Brad Hall, an attorney representing Smith. ‘‘When they unleash the dog they don’t know if it’s going to bite a victim, a suspect or a witness.’’

Nick Bakas, the city’s chief public safety officer, said in the cases he’s aware of, ‘‘I feel comfortable stating that the officers were within police policy and acted appropriately.’’

Police have said Smith must have provoked the dog attack. And they using a dog in that situation defused dangerous circumstances in which officers might have had to use deadly force.

After Smith’s attack, K-9 officer Andrew Lehocky said his supervisor, Sgt. Tom Garduno, told him: ‘‘Good job.’’

Police data show the use of police dogs has escalated since 1996. Dog deployments jumped from 292 in 1996 to 1,449 in 2000, then fell to 1,201 last year.

In 1996, police took someone into custody using a dog 18 times. That rose 97 in 2000. Last year, 71 apprehensions were reported.

A police captain who oversaw the K-9 unit said a year ago that APD was now more likely to muzzle dogs for searches. But deputy chief Ray Schultz testified in a recent deposition that muzzling hasn’t happened and he knew of no plans to do so. Current police operating policy makes no mention of muzzling.

Bakas, who oversees police, fire and corrections for Mayor Martin Chavez, said last week said the department is reviewing K-9 policy.

‘‘We’re looking for accountability and documentation and justification whenever we use dogs, as we would in any use of force situation.’’

A Journal review of APD documents shows many of the people bitten over the past six years have been young and were either hiding or fleeing from police.

‘‘The majority of dog uses are for searches of buildings, and typically those people are unarmed,’’ said Albuquerque attorney Joe Kennedy, who also represents Smith in her lawsuit.

Sometimes police dogs have apprehended violent people fleeing arrest, such as bank robber Byron Shane Chubbuck, who was armed when caught in 1999.

The International Chiefs of Police Association says dog bites have generated a ‘‘near cottage industry’’ for civil litigation.

A large part of the problem has stemmed from ‘‘inappropriate deployment and-or lack of control of canines by their handlers,’’ according to a report last year by the association.

In recent years, the U.S. Justice Department has scrutinized several police departments’ dog units for possible civil rights violations.

Lehocky, by his own personal records, recorded 128 dog bites in his career, a city document shows.

Marlo Marquez, 19, who filed an excessive force lawsuit against the city last year, had been a passenger in a car being chased by police. The car crashed into a wall. She got out and started to run.

Bart bit her leg and buttock, after which Lehocky ordered her to walk over to him — with Bart still hanging on. She was charged with resisting and eluding police.

APD’s policy requires officers to issue a warning: ‘‘This is the APD, come out now or a dog will be used to locate you.’’

But Garduno in a deposition has said officers have discretion not to issue a warning if police safety would be jeopardized.

In the Smith case, Lehocky’s report states only: ‘‘K-9 warnings were not issued due to offender(s) demonstrated their effort to flee/conceal from police, armed with a firearm, and having total disregard for human life.’’