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Woman says APD violated witness policy

Copyright © 2013 Albuquerque Journal

Jenny Brown rushed to the scene of an officer-involved shooting in Albuquerque late last month when she heard her fiance of five years might have been involved.

She said she ended up sitting in a police vehicle for five hours, part of the time in handcuffs. She also said she was denied access to food, water and a restroom and was not allowed to call her family. Though it was her fiance, Joaquin Ortega, 32, who was shot five times and who is facing felony charges for assaulting a police officer, Brown said she felt like a criminal. APD denies that Brown was held involuntarily.

“I felt like I was the suspect, not just somebody looking for information,” Brown said in a Journal telephone interview Friday. “I wasn’t involved in any crime whatsoever, but they definitely made me feel like I was.”

Brown’s Oct. 28 detention in the back of a police vehicle came three weeks after the Albuquerque Police Department overhauled its standard operating procedures that govern witness detention – changes that, in part, prohibit witnesses from being placed in police vehicles without their consent and that allow witnesses to leave the scene at any time if they ask to do so.

The department did not have a detailed policy of detaining witnesses before Oct. 2, and it changed the SOPs to put the department in compliance with federal case law, according to a city attorney.

Brown said she voluntarily got in the back of the police cruiser because she thought she was being taken to another crime scene, but said she repeatedly asked officers for permission to leave between 5 and 10 p.m., when she was allowed to return home.

Assistant City Attorney Kathryn Levy said APD denies Brown was detained involuntarily and that her presence on scene “was in all respects legal and in accord with the policy.”

Attorney Kari Morrissey said she is representing Brown in a potential lawsuit against the city.

Morrissey testified earlier this year before a civilian police oversight board about the potential for federal civil rights lawsuits against the department over the issue of witness detention.

The new procedures adopted by APD require officers to allow witnesses to leave if they ask to do so, in addition to other major changes in the way officers treat witnesses to a crime or police shooting. The changes also stress that officers must ensure their questioning of witnesses is “reasonable” when trying to piece together a crime and protect public safety.

Witnesses of a crime can now expect the following:

  • Access to food, water, restrooms and a phone if possible, and updates about the investigation as information is available.
  • Not to be required to provide their name or stay on scene.
  • Not to be placed in a police car without their consent.
  • Not to be patted down, handcuffed or otherwise detained unless necessary for protection of the police and the public.
  • Only to be sent to a substation or another location with their express consent, and permission to change their mind at any time.
  • To be given priority in being questioned if they need to leave the scene.
  • Not to be questioned at home without consent.

Levy, in an email, said the SOP changes came after continuous review of court decisions, issues arising from citizen complaints and best practices from other law enforcement agencies. She said the new SOPs reflect all those things.

“This is a new SOP developed to provide guidelines to officers and detectives regarding detention of witnesses,” Levy said. “Training in this area has been ongoing for some time for both field officers and detectives.”

Changes urged

Morrissey told the Police Oversight Commission in February that officers were being trained in such a way that left the department vulnerable to federal lawsuits because they were detaining witnesses against their will for hours at a time. Federal guidelines generally state that 90 minutes is the maximum time period for a witness to stay on scene for questioning.

Morrissey said in a telephone interview that she was surprised to hear the SOP had changed, especially in light of Brown’s allegations.

Morrissey’s presentation to the POC in February was cut short after about 35 minutes when city lawyers, including Levy, asked her to stop because they said she was discussing pending litigation. Morrissey later said she felt “censored,” but had at least enough time to tell commissioners what she saw as major differences between federal case law and the department’s practices.

“Sergeants with the Albuquerque Police Department are being trained to detain civilian witnesses for an indefinite period of time, for as long as it takes for the detectives to come and do their interviews,” Morrissey told the commissioners. “You’re seeing APD police officers who are doing what they are trained to do, and what they’re being trained to do is contrary to recent 10th circuit federal case law.”

Morrissey referred to a 2009 federal case involving a witness who was handcuffed and placed in a police vehicle before being driven around for three hours as officers asked him to point out the homes of suspects and for other information.

She also said in her presentation that she has questioned APD sergeants who said they will get in trouble with their supervisors if they allow a witness to leave a crime scene before detectives or other supervisors arrive to question them, and she said excessive questioning of witnesses without their consent is improper.

“You are essentially arresting them without cause, and that’s what federal lawsuits are made of,” Morrissey said.

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