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APD assault case settled for $60,000

ALBUQUERQUE, N.M. — City taxpayers will soon shell out $60,000 as part of a settlement reached with a man who claims an Albuquerque Police Department officer kicked him in the face at least once, breaking his jaw, after he had surrendered during a foot chase, according to the man’s attorney.

Both officers involved in the arrest have been accused in high-profile excessive force lawsuits.

Charles Gomez was ordered to pull over in May 2011, after APD officers Brian Pitzer and Justin Montgomery claimed he wasn’t using his seatbelt. The two officers were on foot patrol near Central Avenue and Second Street.

Gomez pulled over and was subjected to field sobriety tests to see if he was driving drunk, according to court documents. He was asked put his hands behind his back when he decided to flee on foot, the documents state.

Pitzer and Montgomery chased Gomez and encountered him lying near a small Dumpster in the underground parking lot of the Galeria Downtown, Gomez’s attorney Ryan Villa said.

“He knew there was nowhere for him to go, so he just kind of lay down by the Dumpster,” Villa said Friday. “… He said, ‘I give up! I give up!’ and the officers said, ‘You give up when I say you give up.’ ”

Montgomery then kicked Gomez at least once in the face as the suspect lay on the ground, Villa alleged in the federal lawsuit filed in June. The blow broke Gomez’s jaw and made him lose consciousness, Villa said, and he now has problems chewing and speaking, in addition to $10,000 in medical bills.

The city, in court documents, denied all the allegations contained in the lawsuit, which claimed that the two officers violated Gomez’s Fourth Amendment rights and assaulted and/or battered him, and that the city and ex-APD Chief Ray Schultz failed to train, hire and supervise the officers in a way that prevented violations of citizens’ constitutional rights.

Court documents state that the settlement was reached in a 2½-hour negotiation Nov. 22. A city spokeswoman confirmed that a verbal agreement was reached regarding the settlement, but she did not release the settlement amount.

Earlier claims

In 2011, a judge awarded the family of a man shot and killed by Montgomery a little more than $4.25 million in a massive civil wrongful death lawsuit, though such judgments are capped at $400,000. Montgomery shot and killed an unarmed man who he wrongly believed was involved in an earlier crime.

Montgomery later claimed that the man was carrying a large ashtray, which he mistook for a gun.

In that case, a District Court judge ruled that Montgomery misjudged the situation at almost every step, and she disputed that the suspect was carrying anything when he was shot. Judge Theresa Baca also blasted APD training, saying it was “designed to result in the unreasonable use of deadly force.”

Also in December 2012, a federal lawsuit was filed against Pitzer. That suit claimed he used excessive force when he shot and wounded a mentally disabled man who was armed with a 3-inch paring knife in his home. According to audio records, Pitzer shouted, “I’m going lethal!” before entering the home alongside fellow officers, and police later said Pitzer shot the man after he ignored officers’ commands to drop his knife and walked toward the officers.

That lawsuit is pending in federal court.

Pitzer’s most recent shooting, his third in 6½ years on the force, was in late October when he shot and wounded 32-year-old Joaquin Ortega after Ortega crashed into a light pole near Central and Washington before robbing an elderly woman and her young grandson and trying to carjack the owner of a nearby muffler shop.

Villa said the fact that both officers have been accused of excessive force in the past makes him concerned that, as a citizen, officers are being given more leniency than the criminals who are tossed in jail on a first or second offense.

“It concerns me anytime I see an officer who has had repeated incidents like that,” he said. “I don’t know (if they should get) a third or fourth or fifth chance.”

The Department of Justice has launched an investigation into whether APD has a “pattern or practice” of violating individual constitutional rights.



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