Tuesday, December 23, 2008
City Suit Practice Slammed
By Scott Sandlin
Journal Staff Writer
Two Albuquerque police officers have been ordered to pay more than $35,000 in damages in a wrongful arrest case from 2004, and the city can expect to pay at least that in attorney fees.
But a judge's opinion provides commentary more biting than last week's jury verdict.
U.S. District Judge M. Christina Armijo found that delays by the City Attorney's Office in preparing the case for trial, coupled with the city's "no settlement" policy in cases alleging police misconduct, left Justin Graham with virtually no means of resolving his claims efficiently.
The policy of taking to trial any civil rights claim against the Albuquerque Police Department inevitably means more pretrial legal work for the city, Armijo noted.
"Refusing to make a good-faith effort to settle cases, while at the same time declining to devote the resources necessary to perform the additional trial work generated by this refusal, can be seen as an effort to avoid the burdens of litigation altogether so as to deprive the plaintiff of his day in court," she said in a September opinion that found liability for the officers and ordered a trial on damages only.
"Such a 'no-litigation' policy reflects a high degree of culpability, is unfairly prejudicial and interferes with the judicial process."
City Attorney Bob White said the city has had a high degree of success with the policy over the past seven years.
Mayor Martin Chávez added, "The policy has served the dual purpose of avoiding the expenditure of tax dollars on frivolous lawsuits and shedding light on police practices."
Armijo's 39-page opinion came in the lawsuit filed by Graham over a March 23, 2004, incident at his home. A jury returned a verdict awarding Graham $25,000 in punitive damages and $10,600 in compensatory damages against officers Sean Kenny and Joshua McDonald.
Because Graham sued under federal civil rights laws, he will also be able to collect attorney fees for the lawyers who represented him, Adam Baker and Kirtan Khalsa.
Kenny, McDonald and two APD recruits were dispatched to investigate a loud party complaint about 2 a.m. on that date, soon after Graham had come home to find his roommate and five others playing video games and yelling. Graham told the partiers to quiet down.
When police arrived, according to Armijo's opinion, they looked in the window and didn't see any drugs or weapons. Graham opened the door partway after officers knocked and told them he'd keep the noise down. The opinion said Kenny stepped forward and, with his foot in the door, demanded to speak with an occupant while Graham tried to shut the door.
Police then tried to fire a stun gun through the partly open doorway and shot pepper spray through door glass, which broke on Graham's face.
Deputy City Attorney Kathryn Levy said the officers believed there were exigent circumstances, including serious officer safety concerns, which permitted them to enter the apartment without a warrant.