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Han family appeals dismissal of lawsuit

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If you knew civil rights attorney Mary Han, if you had the opportunity to watch her take apart legal opponents in a courtroom with a devastating flick of lawyerly acumen, then you knew she was a woman whose steely determination and caustic wit made her a formidable presence both in and out of court.

She was not one who gave up without a fight.

So, it perhaps should come as no surprise to learn that Han’s family also doesn’t give up easily.

Han was found Nov. 18, 2010, propped in the driver’s seat of her BMW in her garage at her North Valley townhome.

Officials deemed her death a suicide by carbon monoxide intoxication, but Han’s family and others say the investigation into her death was botched by the Albuquerque Police Department – an agency she had sued and was in the process of suing again.

In November 2012, the family filed a lawsuit against the city of Albuquerque – including the top brass from both APD and City Hall who traipsed about Han’s North Valley townhouse that day – alleging numerous violations of civil rights, both Han’s and the family’s.

Last week, however, U.S. District Court Magistrate Judge Carmen Garza tossed out the entire lawsuit, ruling that there is “no fundamental right under the Constitution to know the cause of a family member’s death.”

MARY HAN: Her family says APD botched inquiry into lawyer's death

MARY HAN: Her family says APD botched inquiry into lawyer’s death

Garza also ruled that a dead person’s civil rights cannot be violated, that the family had not shown Han’s civil rights were violated before she died, nor had the civil rights of the family members been violated. And the family, Garza said, had not identified the wrongful act that caused Han’s death.

City Attorney David Tourek put it a different way: “I’ve said from the beginning the Han lawsuit was frivolous.”

But the case may not be over.

The family is appealing to the 10th U.S. Circuit Court of Appeals – not just on Han’s behalf but for the community, a family spokesman said.

“The community has a lot invested in this, and they want to know what happened,” said Colin Baugh, a family friend who is serving as spokesman. “And so do we. This isn’t the end. This is full steam ahead. This is a process. … We’re not buying that this was a suicide. We disagree with the judge’s decision, and know we have farther to go with this.”

Baugh said the family is hopeful the 10th Circuit will be a more receptive venue.

Judge Garza notes in her comments that she is not unsympathetic to the family’s predicament: How can the family show that a wrongful act caused Han’s death if the death was not properly investigated? How can the family point to a legal remedy when it is not known what happened to her?

Remember that the state Office of the Medical Investigator’s autopsy report indicated that Han had a blood alcohol concentration of 0.046 percent, about half the state’s presumed level of intoxication. Han also tested positive for a small amount of Ambien, a sleeping aid she had started taking over the summer.

APD investigators failed to note that family members claim Han was known to abstain from alcohol and that Ambien may have been responsible for her “sleep-driving” to a gym months before her death. Nor did the OMI or APD question how the carbon monoxide saturation found in Han’s body could have reached an astronomical 84.8 percent by her being in a vehicle in a well-ventilated garage.

It should be noted that Garza’s order does not dispute the facts as the Han family has alleged regarding the mishandling of the APD investigation into Han’s death. And an investigation conducted by the Attorney General’s Office released late last year also found that Han’s death was “mischaracterized” as a suicide and the investigation into her death was “terribly mishandled.”

“The cumulative effect of the errors by APD make it extremely difficult at this time to definitely determine the cause of Mary Han’s death,” Attorney General Gary King has said.

Which is to say that to seek some form of justice on Han’s behalf, the family believes, more answers are needed. But how do you get those answers when the investigation that should have provided those answers is botched and the investigators aren’t talking?

This doesn’t mean the Han family and the community aren’t owed those answers and that accountability from top officials who stood in Han’s townhome and, according to the lawsuit, failed to ensure that her death received the proper investigation and respect it deserved.

So Han’s family fights on.

“Mary never took ‘no’ for an answer,” Baugh said, “and so we won’t, either.”

UpFront is a daily front-page news and opinion column. Comment directly to Joline at 823-3603, jkrueger@abqjournal.com or follow her on Twitter @jolinegkg. Go to ABQjournal.com/letters/new to submit a letter to the editor.

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