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Judge dismisses suit over Han’s death

Copyright © 2014 Albuquerque Journal

U.S. District Court Magistrate Judge Carmen E. Garza has dismissed all counts in a lawsuit brought by the daughter and sister of late civil rights attorney Mary Han against the Albuquerque Police Department and city officials.

HAN: Frequently filed cases against APD

HAN: Frequently filed cases against APD

The case, originally filed in state District Court, was moved to the federal bench when the plaintiffs, Han’s daughter, Katherine Han-Noggle, and Han’s sister, Elizabeth Wallbro, amended the suit to include violations of constitutional rights.

“We expected it,” City Attorney David Tourek said Wednesday of Tuesday’s court ruling. “I’ve said from the beginning the Han lawsuit was frivolous.”

The plaintiffs’ attorney, Rosario Vega Lynn, did not return phone calls to the Journal.

Tourek said the court found that the plaintiffs “failed to even allege the underlying basis that constitutional rights were violated by the city or its employees and the judge dismissed the constitutional claims with prejudice, meaning they can not be re-filed again.”

Stephen French, the lead attorney for the defendants, said he was pleased with the ruling and deferred all other questions and comments to Tourek.

Han, 53, was found dead in her car, parked in the garage of her North Valley townhouse on Nov. 18, 2010. An autopsy report determined that the death was suicide from carbon monoxide poisoning. Her body was found by her law partner, Paul Kennedy, who made the 911 emergency phone call.

Han was a high-profile attorney who frequently represented clients in cases against the police and the city. At the time of her death, she was involved in litigation against then-APD chief Ray Schultz and pending litigation against then-deputy chief Allen Banks, both of whom were among 10 people and two “John Does” listed as defendants in the federal lawsuit.

Also named among the defendants were Darren White, then public safety director for Albuquerque; Robert Perry, former city attorney (now the chief administrative officer); and deputy chiefs Paul Feist and Elizabeth Paiz.

Kennedy’s reporting of Han’s death triggered a response from more than two dozen people, including police and fire department investigators as well as top brass from APD and high-ranking city officials, all of whom walked through the home soon after her body was found.

According to the court ruling, the plaintiffs alleged that the defendants “prevented an investigation” into Han’s death and contaminated the crime scene by failing to “collect and preserve evidence,” interfering with “the work of subordinates,” and conspiring to do so.

The defendants’ actions, plaintiffs contended, amounted to a violation of Han’s constitutional due process right to an investigation into her death, and prevented the plaintiffs from bringing a wrongful death suit.

Citing established case law, Garza said in her ruling that a plaintiff “does not have a federal due process right to a police investigation,” and there is “no fundamental right under the constitution to know the cause of a family member’s death.”

Neither is inadequate investigation “sufficient to state a civil rights claim, unless there was another recognized constitutional right involved,” she wrote. In other words, Tourek said, “bad police work, if it allegedly occurred, is not a constitutional violation.”

Garza also wrote that the “Plaintiffs have not identified the defendant in a potential wrongful death lawsuit, or even identified a wrongful act that caused Ms. Han’s death.”

She did note that the plaintiffs can still bring a wrongful death claim, though the statute of limitations may be an obstacle.

Tourek also noted that “dead people don’t have constitutional rights,” that Han was already dead by the time police arrived and that there is no allegation that any of the defendants contributed to her death.

Which isn’t to say that questions surrounding Han’s death and the investigation into it have been satisfied.

Last year New Mexico Attorney General Gary King reviewed the case and said the on-site police investigation “was terribly mishandled due to inappropriate directions from high-ranking police and civilian administrators with the city of Albuquerque.”

He said he believed the manner of her death should be changed from “suicide” to “undetermined.”

King’s office reached several findings, including:

• The large number of APD personnel given access to Han’s home “materially interfered with the investigation process.”

• “Significant” items were either removed from Han’s death scene or were “otherwise missing,” further complicating the case by thwarting scientific analysis and evidence collection. (Among the missing items, say Han’s daughter and sister, were two rings valued at more than $100,000).

• A high-ranking APD official made a “precipitous decision” to label Han’s death a suicide before any investigation had been conducted.