ALBUQUERQUE, N.M. — A federal magistrate judge sanctioned the city of Albuquerque on Tuesday for having “lost or misplaced” the recorded statement of an APD officer who witnessed one of his fellow officers fatally shoot a man in May 2011.
On Wednesday, the city’s newly hired contract attorney turned the recording over to attorneys representing the family of the man who was shot. The family’s attorneys say the recording is a key piece of evidence in their civil rights suit.
U.S. Magistrate Judge Alan C. Torgerson’s sanction allows attorneys from the Fine Law Firm, which is representing the family of Alan Gomez, to offer evidence that the recording had been “lost or misplaced solely as a result of the negligence of the City of Albuquerque.”
The issue, however, may now be moot.
The city’s contract attorney, Luis Robles, said in an interview this week that he recovered the recording from New Mexico State Police. That agency assisted in the investigation of officer Sean Wallace’s shooting of Gomez, and one of its agents was present for the interview of the witness, APD officer Jeremy Dear.
“I understand how that appears,” Robles said. “I can’t speak to the investigation done by the city prior to my entering on the case … I like to think that I remedied the problem: The Fines got their evidence.”
In court filings, Deputy City Attorney Kathy Levy said she and others had made “extensive good faith search” for the recording but could not locate it. She said Thursday that, “to the best of (her) recollection,” her search for the recording had included an “inquiry” with State Police.
The Gomez family’s lawsuit alleges wrongful death and constitutional violations against Wallace. It also alleges negligent hiring, retention and supervision of Wallace, and other claims, against Police Chief Ray Schultz and the city.
Court filings lay out the importance of the recording to the case.
According to a motion for sanctions filed by the Fines in February, Dear has told at least two different stories about the moments before the shooting: one in the recorded interview conducted by an APD detective on May 11, 2011, the day of the shooting; and another during a deposition in September 2012.
In his initial statement, according to the Fines’ motion, Dear made no mention of having seen anything in Gomez’s hand besides a cigarette at the time of the shooting; he did not indicate that Gomez had been running back into his family’s home at the moment Wallace pulled the trigger; and Dear said nothing about hearing reports prior to Gomez’s death that Gomez had fired shots from the home earlier in the day.
In Dear’s later deposition, “he added each of these three details,” the Fines’ motion states. “The fact that Officer Dear’s second description of the shooting differs so wildly from his initial account of the incident should cause the Court (and the community) concern.”
Wallace’s version of the events leading up to the shooting, according to the Fines’ motion, changed in the same three ways between his initial interview with investigators and a subsequent statement he gave months later.
Robles said he obtained the recording from State Police sometime in the last two weeks.