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APD Damages Set If Appeal Fails

ALBUQUERQUE, N.M. — The city has agreed that Tony Nelson’s damages were $385,000 in a 2009 confrontation with APD officers who deployed dogs, Tasers, SWAT units and snipers against him after he drunkenly argued with a friend who called 911.

But it’s not as if he can take that to the bank yet.

All the city’s agreement really does is set a figure and avoid the costs of a jury trial — which had been scheduled later this month — on the issue of damages alone.

Chief U.S. District Judge Bruce Black in April overturned a jury verdict favoring APD saying that allowing it to stand would be a “miscarriage of justice.” The city is appealing and would pay the $385,000 in damages, plus attorney fees, if the appeal is unsuccessful.

“It streamlines the process,” Assistant City Attorney Stephanie Griffin said Friday.

Nelson’s buddy called police twice — the first time with no response, but with an immediate reaction from the second call, when he told them Nelson had threatened him with a knife and pellet gun. Forty-seven officers, plus dogs and an armored vehicle, showed up at the home.

Nelson attorney Sharon Hawk requested a ruling as a matter of law in favor of her client before the case was submitted to jurors, arguing that police actions were unreasonable.

Black ultimately granted that request — but not until months after the jury verdict.

Hawk said use of five beanbag rounds on Nelson, then 60, unarmed and addled from hours of drinking beer with his buddy, was excessive.

Trial testimony showed Nelson “did not pose an immediate threat to officers or others. A safe perimeter had been set up to ensure the safety of the public and responding officers,” the pleading says.

“There was only one door by which (he) could exit the house, all sides of the house had lethal police coverage, and any egress from the property was further hampered, if not blocked, by two razor wired fences, a chain linked fence, the SWAT Entry team and high-ground snipers.”

Nelson didn’t present an imminent threat anyway, his attorney said.

“As the evidence showed, he slowly walked towards (the) entry empty-handed,” his lawyer said in the motion asking for judgment as a matter of law.

Officers used the beanbag rounds from a shotgun after deciding Nelson was going back to the house, but Hawk said the evidence shows he was “turning around in compliance with orders to turn around.”

Nelson had turned around so his back was facing the entry team and “he had taken a single step or, at worst, walked a few steps having just been struck with five beanbag rounds and disoriented by the flash-bang diversionary device,” according to the pleading.

Officers next used wooden baton rounds and deployed an attack dog — one of eight at the scene.

Nelson was clutching a fence with the dog on his arm when the rounds of Tasering began.

“The order to let go of the fence was being given at the time that the dog was actively biting (him),” the motion says. There was no pause between Taser rounds to assess compliance, it says.

In Black’s opinion reversing the jury, and entering judgment for Nelson, the judge found no reasonable person could believe that “an inhibited, slow-moving 60-year-old individual who made no physical or verbal threats and wielded no weapons could constitute a threat to the safety of any of the 47 armed and shielded police officers who stood 20 feet away.”

Griffin asked Black to reconsider, saying that in the totality of the circumstances, police acted reasonably. Even if an officer unreasonably uses force, she said, qualified immunity should be granted if the officer had “a reasonable, albeit mistaken, belief about the legality of the officer’s actions.”

Black didn’t back down.

Judges seldom overturn a jury verdict, and past instances where they have usually have gone in the opposite direction — reducing a jury’s award or saying there shouldn’t be liability.
— This article appeared on page A1 of the Albuquerque Journal