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APD Deadly Force Under Fire

ALBUQUERQUE, N.M. — State District Judge Theresa Baca handed down a massive judgment to the family of a man fatally shot by an APD officer in 2009 and blasted the department’s training methods as “designed to result in the unreasonable use of deadly force.”

Baca shot down nearly every one of APD’s witnesses as “unreasonable” and “not credible” and described the decisions of its officers as “misjudgments” from the time officers began to follow Andrew Lopez’s vehicle on Feb. 8, 2009, to the time officer Justin Montgomery fired the fatal shot while Lopez was lying on his back, unarmed.

The judge awarded 19-year-old Lopez’s family a little more than $4.25 million. State law caps payouts in cases such as Lopez’s to $400,000, but his family’s attorneys may challenge the constitutionality of the cap. The judge found Lopez 25 percent responsible for his own death and the city 75 percent responsible.

City Public Safety Director Darren White said in a statement he was “disappointed and could not disagree more with the judge’s statements regarding the nature and intent of our training.”

White said the city has made changes to its policy and mandated additional training for officers on the use of deadly force in light of 18 officer-involved shootings since January 2010, 13 of which were fatal.

City officials also are expecting recommendations from the Police Executive Research Forum, whose study of the high number of shootings is expected to be completed in the next two weeks.

The judge wrote that Montgomery’s use of deadly force was “excessive and unreasonable.”

She went on to say: “Based on the testimony of the City of Albuquerque’s own expert, the training provided, to the officers, on the use of deadly force, is not reasonable and is designed to result in the unreasonable use of deadly force.”

Baca also pointed out that that very expert, a training officer for APD, called Montgomery’s actions “exemplary” and testified in court that he would use the Lopez shooting “to train officers in the proper use of deadly force.”

Police followed Lopez for nearly 11 minutes in and out of a residential neighborhood with their emergency lights engaged, believing he may have been a suspect in a shooting earlier that night. At one point, the vehicle slowed, Lopez’s passenger got out and fled on foot. Eventually, Lopez stopped near 51st and Rincon NW, and he took off running into a driveway after looking at Montgomery and other officers for a split second.

Lopez had a warrant out for his arrest on a battery charge and had a small amount of alcohol in his system at the time of the incident.

Montgomery fired three shots at Lopez in the driveway, striking him with one. The bullet dropped Lopez to the ground, but the shot wasn’t fatal.

Lopez was wounded, unarmed and lying on the ground with fists clenched over his chest when Montgomery fired a fourth shot that pierced Lopez’s lung and heart and killed him.

Montgomery said from the witness stand during the opening day of a civil wrongful death lawsuit in Baca’s courtroom last month that he believed Lopez was armed with “the biggest gun (he) had ever seen” and had tried to engage him and other officers.

According to APD, the gun turned out to be a large car ashtray that had been in the vehicle Lopez was driving with dimmed headlights and no taillights when police spotted him near the intersection of Central Avenue and 50th Street around 3 a.m. on Feb. 8, 2009.

A grand jury cleared Montgomery of any wrongdoing in the shooting, as did an APD Internal Affairs investigation.

Baca saw things differently. In Tuesday’s judgment, she wrote:

♦ “Andrew Lopez was not armed with a gun or an ashtray at the time he received the fourth and fatal shot.”

♦ Montgomery told investigators the day after the shooting that he “declined to give up cover in order to see what was in Andrew Lopez’s hands.” Nine months later, Montgomery testified before a grand jury that he had seen metal in Lopez’s hands.

♦ Montgomery “never considered that Andrew Lopez was merely trying to escape.” Montgomery testified that he believed that Lopez was shooting at him, even though Lopez wasn’t armed.

♦ Montgomery’s “testimony was not credible.” Neither, she wrote, was that of officer Louis Henckel, who had been riding in a police car with Montgomery on the night of the shooting and had also pursued Lopez up the driveway on foot.

♦ “Shortly after the pursuit began, an APD officer or employee wrongly determined that the tan, two-door, 1981 Buick Regal (Lopez was driving) matched the description of a silver, four-door, late model Chevrolet Impala that was reported to have been involved in a shooting earlier in the morning.” That “misidentification … heightened the intensity and fear associated with the low-speed pursuit and tainted the perceptions of the officers involved in the pursuit.”

Attorneys Mark and Joe Fine, who represented Lopez’s family in the wrongful death lawsuit, applauded Baca’s decision.

“Judge Baca’s ruling was a sound rejection of the City of Albuquerque’s denial of responsibility for Andrew Lopez’s death,” the Fines wrote in a statement to the Journal. “Her findings detailed numerous mistakes, and misjudgments which led to, and caused, the needless shooting of a young Albuquerque man who was unarmed, and posed no threat to anyone. The decision reaffirms the rule of law, and gives notice that the courts will hold APD officers accountable for the negligent shooting of one of our citizens.”

— This article appeared on page A1 of the Albuquerque Journal

Cutline – BACA: Said officers made “misjudgments”