Copyright © 2017 Albuquerque Journal
Can the children of a man fatally shot by an Albuquerque police officer sue the city for the loss of their father – even though there was never a wrongful death lawsuit brought after his death?
The state Supreme Court is set to decide that question.
The case revolves around the question of whether law enforcement officers in particular can be sued in this way.
It stems from the 2010 shooting death of Mickey Owings in a Wal-Mart parking lot by undercover detectives investigating auto thefts. The federal Department of Justice described the shooting as unnecessary, and attorneys for Owings’ three children, ages 3, 5, and 12 at the time, want a court to compensate his children for the loss of their father.
But the children and Owings’ estate, if he had a formal one, failed to file a wrongful death lawsuit by the legal deadline, which is three years.
A wrongful death lawsuit usually allows an estate or family to also sue for what is called a loss of consortium, or the loss of relationship with the deceased.
Last month, Deputy City Attorney Stephanie Griffin faced off with the children’s lawyer, Shannon Kennedy, during oral arguments before the high court, contending that the children could only sue for loss of relationship as part of a wrongful death lawsuit.
Plus, she argued that their stand-alone claim isn’t allowed in a case when the damage was done by a police officer in the line of duty, a special exemption in the law that allows other types of civil lawsuits.
Kennedy, however, argued that indeed the kids were harmed with the loss of the relationship with their father, that the law, which is fuzzy on this type of relationship loss lawsuit, should apply and that their claim should be allowed to stand on its own.
Kennedy is fighting for the chance to bring the lawsuit at the District Court level.
She originally brought the suit before 2nd Judicial District Judge Denise Barela Shepherd in 2014, but Shepherd dismissed the case in favor of the city’s argument that police officers acting in their duty can’t be sued for loss of consortium claims, especially separate from a wrongful death lawsuit.
The Court of Appeals reversed that in 2016, ruling that even though the law enforcement exemption law doesn’t explicitly talk about loss of consortium claims, they can still be brought.
The city appealed and now the parties must wait for a ruling from the justices.
Loss of consortium
It is common for loss of relationship claims, legally called loss of consortium claims, to be wrapped into wrongful death lawsuits brought by a deceased person’s estate. The loss of consortium claim is a way to value “emotional distress suffered by one spouse who loses the normal company of his or her mate” though the law also has included children, siblings, and grandparents.
The city has paid for loss of consortium claims in other types of cases and has even paid for such claims to children of other people fatally shot by APD. But those claims were brought as part of wrongful death lawsuits, not separate the way the Owings children have.
Their father, an auto theft suspect, was shot by Albuquerque police in 2010 in a Wal-Mart parking lot by APD officer Kevin Sanchez, a plainclothes detective, after other detectives and officers in unmarked police cars surrounded the car Owings was driving.
Owings, who was unarmed, backed his car into a police vehicle and then crashed into parked cars to try to escape when he was shot. There is no record of a wrongful death lawsuit filed by his estate, but Kennedy filed the loss of consortium claim on behalf of the children in 2014 shortly after the case was highlighted in a federal investigation.
The Department of Justice included Owings’ death in its 2014 letter to Albuquerque Police Department that laid out what the DOJ said was APD’s pattern of excessive force and officer-involved shootings.
The letter alleged that in many cases, including the Owings incident, the officers’ own recklessness led to unlawful shootings.
“Owings did not pose a threat of death or serious physical injury to the officer or anyone else; he was driving straight into unoccupied, parked cars when he was shot. This damage to property, as serious as it was, did not justify taking Owings’ life,” the DOJ wrote.
Sanchez was cleared by an Albuquerque grand jury before the federal investigation of APD began.
Kennedy filed the claim on behalf of the children shortly after the letter finding the shooting was unlawful was released – which occurred after the deadline for filing a wrongful death suit.