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City settles 2010 excessive force lawsuit for $675K

Copyright © 2020 Albuquerque Journal

A decade after he was tased and mauled by a police dog during a SWAT situation that erupted after an argument with a friend over beer, Tony Nelson’s protracted legal battle with Albuquerque is over.

The city recently agreed to pay $675,000 to settle Nelson’s civil rights lawsuit alleging that officers used excessive force in response to the March 2009 incident.

It was one of 21 agreements worth nearly $2.1 million that the city forged during the first quarter of fiscal year 2020, city records show.

It also represents the end of a case that wound a long and unusual path through the legal system.

Nelson had sued the city in 2010, claiming he suffered significant injury because of Albuquerque Police Department officers’ “unnecessary, objectively unreasonable and excessive” force in response to his friend’s 911 call following the pair’s argument. According to his lawsuit, the two argued because Nelson refused to go out to purchase more beer from a nearby convenience store.

The friend called 911 twice, claiming in the second call that Nelson threatened him with a rifle and knife, according to the “factual background” included in a 2017 judicial order.

That drew 47 police personnel, including 17 SWAT members and eight K-9 officers, to his friend’s home.

In response to police orders to exit the house, Nelson came to the doorway with a knife in his hand. Following a further order to walk out and turn around, Nelson went back in the house and dropped the knife, according to court documents. He reemerged and walked slowly toward officers with empty hands but did not heed directions to raise his hands.

He ultimately stopped at the end of the driveway, about 20 feet from officers, and began to turn to his left.

Officers fired five bean bag rounds and a wooden-baton round at Nelson, launched a “flash bang” to disorient him, released a police dog that bit him, then shot him with a Taser, with one officer shocking him six times in 37 seconds.

A jury determined in a 2011 trial that officers had not used excessive force, but the presiding judge took the rare step of overruling the verdict.

Then-Chief U.S. District Judge Bruce D. Black wrote that allowing the jury’s verdict to stand would have been a “miscarriage of justice.” In his own 2012 opinion, he wrote that “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 the 47 armed and shielded police officers who stood 20 feet away.”

The city asked Black to reconsider. He denied that motion.

But following Black’s retirement, U.S. District Judge Robert Browning ruled in the city’s favor on another motion.

Nelson then successfully appealed to the 10th Circuit Court of Appeals, leading to the $675,000 settlement.

It reflects $385,000 in damages the city and Nelson agreed to following Judge Black’s 2012 decision, plus the recently negotiated sum for Nelson’s attorney and court costs.

“Ultimately the City believed it made more sense to settle the nine-year-old matter for the amount of damages that the parties had agreed to plus attorneys’ fees, rather than to continue to fight in court,” a city spokeswoman said via email.

The lawsuit cost the city more than just the settlement; it also spent $225,843 on nine years of litigation, including attorneys, expert witnesses and other expenses.

Ryan Villa, one of Nelson’s attorneys on the appeal, said the case’s procedural course is unlike anything he has ever seen, but that the precipitating police incident remains remarkable in its own right.

For police “to go that crazy for basically two old guys who got drunk and got into a fight with each other (and) do what they did is as outrageous, in my opinion, as anything else that happened in this case,” he said.

Other first-quarter legal settlements include:

• $100,000 to Seth Chavez, a former Albuquerque Police Department cadet who claimed in a 2018 lawsuit that the city violated the Americans with Disabilities Act by not providing accommodations for his dyslexia such as allowing him additional time or the use of dictation software to write reports;

• $45,000 to James Griego, who alleged that police in 2018 raided, damaged and boarded up a home he was remodeling while he was not on the premises but never had a search warrant or filed a report; and

• $40,000 to a woman who claimed her son was injured in 2016 when a swing he was using in Alamosa Park broke.

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