ALBUQUERQUE, N.M. — State District Judge Shannon Bacon on Wednesday ruled that an Albuquerque police officer’s fatal shooting of an Iraq War veteran in 2010 was unconstitutional as a matter of law.
Officer Brett Lampiris-Tremba’s shooting of Kenneth Ellis III was among the first in a string of deadly and non-deadly force encounters involving city police that, in large part, led the U.S. Justice Department to launch a sweeping investigation of APD.
Ellis, who suffered from post-traumatic stress disorder, was surrounded by police outside a convenience store on Eubank Boulevard NE in January 2010 after an officer had pinned his vehicle into a parking space.
Ellis was standing outside his vehicle, intermittently talking on the phone for nine minutes while police shouted commands at him to drop the gun he was holding to his own head. Ellis never pointed the gun at officers, and he never threatened them, according to depositions taken in a civil lawsuit.
Without warning, according to officers’ depositions, Lampiris-Tremba shot him once in the neck, killing him, then said: “(expletive), did I shoot?”
There are still several claims to be decided in the civil lawsuit brought by Ellis’ family, but jurors will not, as a result of Bacon’s ruling on Wednesday, be asked to decide whether the shooting itself was lawful.
“In large part, this case is about damages now,” attorney Joe Kennedy said. “It’s about loss of consortium and a little boy who’s growing up without a father. But it’s also still about the fact that the city bears responsibility for the lack of (crisis intervention) training.”
In granting the motion for summary judgment in the suit against Lampiris-Tremba and APD, Bacon ruled that Ellis’ actions would not have led a reasonable officer to believe he posed a threat to other officers or anyone else.
For that reason, the judge granted a motion from the plaintiffs stating that the shooting amounts to a violation of Ellis’ Fourth Amendment rights under the U.S. Constitution to be free of excessive and deadly force.
A police officer’s use of deadly force constitutes a seizure under the Fourth Amendment and therefore must be reasonable.
Attorneys Joe and Shannon Kennedy and Frances Carpenter, who are representing Ellis’ family, hailed Bacon’s decision. The attorneys called it a bold step toward police accountability in a city where police have shot at 27 individuals, hitting 24 of those and killing 17, since 2010.
“It’s an honor to live in a society where, with the civil justice system, a family has the opportunity to have the Fourth Amendment of the U.S. Constitution upheld,” Shannon Kennedy said in a telephone interview.
Deputy City Attorney Kathy Levy, who represents APD, said in a written statement that Lampiris-Tremba, who is still with the department, and the city are “disappointed in Judge Bacon’s ruling.”
“We firmly believe the issues in this case should have been submitted to a jury for its deliberation and judgment,” Levy said in the statement. “Prior to discharging his weapon, Detective Lampiris-Tremba reasonably perceived an imminent threat of deadly harm from Kenneth Ellis, who was armed. Due to the fact that there are remaining issues going to trial, the City believes it would be inappropriate to comment further at this time.”
Through a spokeswoman, Levy said in a subsequent email to the Journal that no decision has been made about whether the city will appeal Bacon’s ruling.
Bacon’s decision marked the latest in a series of setbacks for APD in the Ellis case. The judge already had ruled that the city couldn’t introduce evidence to support its theory of the case, which was that Ellis committed “suicide by cop.”
Lampiris-Tremba and the city also have had their share of wins. In December 2010, an “investigative grand jury” without the power to indict ruled that the shooting was justified under New Mexico law.
District Attorney Kari Brandenburg’s long-standing practice of presenting police shooting cases to such grand jury panels has since been suspended by District Court judges, who cited concerns with prosecutors’ impartiality and Brandenburg’s inability to justify the presentations under state law.
The city’s then-Independent Review officer, William Deaton, ruled that the shooting of Ellis was not justified. But his decision was overruled by the Police Oversight Commission and APD Chief Ray Schultz, who did not discipline Lampiris-Tremba.
There are still a number of matters to be decided in the civil case, and jury selection is scheduled to begin March 4.
Among the remaining claims are that APD and Schultz were negligent in hiring Lampiris-Tremba, training him and keeping him on the force.
In 1992, Lampiris-Tremba tried to get a job with APD but was unsuccessful. At the time, he lied to department screeners about whether he had ever smoked marijuana, according to the lawsuit. Five years later, he was allowed to join the force even though he admitted to being untruthful in his response to the drug question in the 1992 interview, according to the suit.
During his 15 years with APD, Lampiris-Tremba has used an electronic stun gun on a man during a traffic stop but didn’t properly document the incident; fired four shots from his rifle at a suspect’s car; crashed his squad car three times; and was twice disciplined for failing to report leave time, the lawsuit states.
If the case goes to trial, jurors also will decide on claims that Lampiris-Tremba violated Ellis’ Fourteenth Amendment equal protection rights and his rights under the Americans With Disabilities Act.
Lampiris-Tremba and other officers “chose to bombard Kenneth Ellis III with repeated threats instead of using mandatory (crisis intervention) training to reduce the stress of the situation,” the lawsuit states.
And jurors will decide whether APD officer Byron “Trey” Economidy’s stop of Ellis’ vehicle violated Ellis’ Fourth Amendment rights.
APD officials maintained for more than a year that Economidy had stopped Ellis for an expired license plate. In fact, he blocked Ellis’ Corvette from leaving a parking space after Lampiris-Tremba asked him over the police radio to stop the vehicle to “gather intelligence.” Officers had been conducting surveillance of suspected car and property thieves at a nearby apartment complex, and Ellis had knocked on the door of one of the apartments.
Meanwhile, Ellis’ family applauded the judge’s summary judgment decision regarding the shooting.
“It is really important to restore faith in our community and our police, and this is a step toward proving that we have a system that works,” Jonelle Ellis, Kenneth Ellis’ sister, said in a telephone interview. “Just because you have a badge doesn’t give you the right to shoot someone and get away with it.”
— This article appeared on page A1 of the Albuquerque Journal