Browder was killed in a collision after then-Albuquerque Police Department Sgt. Adam Casaus ran a red light on the West Side.
The family’s lawyers asked the court to compel the city of Albuquerque to cough up the information on the computer and hard drive maintained by the former APD records clerk, Reynaldo Chavez, who has his own lawsuit against the city.
U.S. District Judge Robert Brack noted in the new order that he’d already sanctioned the city in May “for (its) gross negligence in failing to preserve potentially critical evidence” and ordered city officials to turn over any and all documents relevant to Casaus’ APD issued cellphone – whether it came from the criminal case against Casaus, an internal affairs investigation or the civil suit.
He also imposed sanctions on the city for losing video footage from the intersection where the accident occurred.
A day after that May order, Chavez came forward with a sworn statement saying that he anticipated requests for documents related to the accident while working as records custodian, and that he had contacted agencies, gathered materials and kept copies of records such as Casaus’ personnel file, training file, digital transcripts of communications, dispatch audio recording and videos.
And they were backed up on a hard drive.
He also said in the affidavit that he’d met in person with former Deputy City Attorney Kathryn Levy, Assistant Chief Robert Huntsman and Deputy Chief Eric Garcia and recalled Levy saying something like, “We’re not releasing anything.”
The city responded with affidavits from those three individuals disputing Chavez’s statements and denying speaking with him about Inspection of Public Records Act requests.
Chavez submitted another affidavit. He explained that he’d had an “ongoing stream of interactions” with those officials, not a single encounter.
Chavez’s computer and hard drive “have played a starring role in several unrelated lawsuits” against the city, Brack notes, including the lawsuit seeking details on the police investigation of attorney Mary Han’s death, Chavez’s own whistleblower case, the lawsuit by the family of 19-year-old Mary Hawkes, who was fatally shot by Officer Jeremy Dear in April 2014, and the Browder family case.
Attorneys for the Hawkes family allege the city clearly has pertinent records, presumably in Chavez’s computer, that it hasn’t turned over.
Brack, who is also the judge on the U.S. Department of Justice consent decree with APD and city, says the city has not only failed to comply with his May order, but also tried to make it look like they’re obeying while attempting to distinguish certain items as not being pertinent to the order.
“The court finds the city’s position to be untenable and tantamount to bad faith,” he wrote.
The new order tells the city put a litigation hold on the computer, hard drive, disks, printed documents and anything else Chavez referred to in his state court case, and it can’t alter, destroy, redact anything.
He orders lawyers on both sides to set up a date so Chavez can go with them to make an inspection of the computer-related materials within the next 10 days. The city can provide technical personnel as necessary, “but the city may not hinder the search,”the order says.
Brack also says the city must provide copies of all evidence relevant to Casaus’ cellphone and lost video footage.
He reserves ruling on attorney fees for the motion to force the city’s hand.