Judge dismisses ‘Cookie Bandit’ civil rights claims

Civil rights claims brought by a former Sandoval County sheriff’s deputy who saw her friend and supervisor killed by the so-called “Cookie Bandit” in a Jemez-area cabin have been dismissed.

Senior U.S. District Judge James A. Parker threw out the claims filed in 2011 by Theresa Moriarty and in a 54-page opinion sent the case back to the state District Court for trial on state tort and contract claims.

Moriarty’s lawsuit alleged then-Sheriff John Paul Trujillo, then-Undersheriff Tim Lucero and Capt. Edd Morrison put her in harm’s way for, in part, failing to warn her or Sgt. Joe Harris of the potential for violence presented by the man dubbed the Cookie Bandit.

Joseph Henry Burgess, 62, later identified through fingerprint analysis as a draft evader and onetime religious cult member, also was killed during the scuffle with Sgt. Joe Harris and Moriarty.

The two deputies had been on a stakeout in a Jemez cabin when Burgess broke in early July 16, 2009.

The deputies managed to subdue and handcuff Burgess, who despite that was able to retrieve a gun in the dark cabin. He shot at Moriarty, narrowly missing her, and hit Harris in the femoral artery. It was over an hour before emergency personnel arrived, and Harris died in an Albuquerque hospital.

Moriarty in her complaint said she and Harris, who had been working as school resource officers before being detailed to Jemez, lacked adequate training, backup and equipment, such as bulletproof vests or functional radios.

More than 200 burglaries had been committed in the Jemez area since 1998 when an e-mail to the county, in 2009, prompted additional efforts, including establishing additional patrols, setting up in cabins and assigning two deputies full time, according to facts recited in the opinion.

Burgess had acquired a new identity after a 1972 double homicide of a young couple camping on a beach in British Columbia, Canadian officials said after the New Mexico attack that claimed the life of Harris.

Both campers were shot in the head. Burgess was a suspect in a 2004 California homicide as well.

Attorney Cammie Nichols said Moriarty “basically was totally disabled,” sustaining back and shoulder injuries from the encounter with Burgess and post-traumatic stress disorder from the trauma of the entire incident.

Nichols said the court’s ruling essentially says the facts presented are not enough to maintain the civil rights claim that it was the state, through the sheriff’s department officers, that placed her in danger.

“The undisputed facts of this case, even when viewed in the light most favorable to Moriarty, do not amount to a scenario in which defendants acted affirmatively and culpably – that is, so recklessly and egregiously to harm Moriarty that the conscience is shocked,” Parker wrote.

Though what happened was “tragic,” Parker said that “even the decision to send Moriarty and Harris, inexperienced patrol officers to investigate and possibly apprehend a residential burglar with a sketchy history of threatening violence” amounted to no more than “mere negligence or inaction,” and a civil rights claim requires greater evidence.

Scott Eaton, who defended the county, Trujillo, Lucero and Morrison, called the opinion “extremely thorough and well reasoned.”

“Ms. Moriarty continues to receive workers’ compensation benefits from the county,” he said in a statement. “This is a workers’ compensation claim, not a federal civil rights case.”

Nichols said she and law partner Brendan Egan expect to file a notice of appeal on Parker’s ruling.

The state claims, meanwhile, are back before 7th Judicial District Judge Edmund Kase, who was assigned the case after judges in the 13th Judicial District, which includes Sandoval County, recused.

The claims under state law allege that the same defendants, who Moriarty says failed to give her information and equipment she needed to be safe, in effect placed her in harm’s way “with utter disregard for the consequences.”

She also claims that by sending her on the undercover operation, the defendants “assigned her to work beyond the scope of her employment” and thus should not be governed by state workers compensation law. Moriarty’s employment was governed by a union contract.
— This article appeared on page A1 of the Albuquerque Journal