Thursday, May 19, 2011
Judge To Decide Case by June 20
By Jeff Proctor
Journal Staff Writer
It's now up to state District Judge Theresa Baca to decide whether the actions of Justin Montgomery and other police officers were reasonable when Montgomery fatally shot 19-year-old Andrew Lopez after a lengthy low-speed chase in February 2009.
Attorneys for the Albuquerque Police Department and for Lopez's family agreed reasonableness is at the heart of a civil wrongful death lawsuit filed on behalf of the family. A three-day trial concluded Wednesday.
APD's policy clearly states an officer must "reasonably believe" there is an immediate threat to the officer, other officers or the public to use deadly force.
Lopez was unarmed, not moving or speaking and on his back after having been shot once when a second bullet from Montgomery's duty weapon pierced his heart and killed him. Montgomery testified this week he believed Lopez was threatening him with the biggest handgun he had ever seen. Other officers also testified they believed Lopez had a gun; still others saw nothing in his hand.
As it turned out, according to APD, Lopez had been carrying a car ashtray.
Attorney Mark Fine, who is representing the family with his father, Joe Fine, said during his closing argument Wednesday the events of Feb. 8, 2009, were a "parade of mistakes APD made that led to (Lopez's) death." He pointed out APD's policy and added that state law also dictates all police officers must do their jobs reasonably.
"Reasonableness should not evaporate in critical or high-risk incidents," Mark Fine said. "But reasonableness is not taught at APD right now."
Deputy City Attorney Kathy Levy said in her closing argument that Montgomery and other officers at 51st and Rincon NW when Lopez was shot acted reasonably through every aspect of the case.
"Sometimes, things go down, not as an officer would like them to, but as reality dictates," Levy said. "Reasonable. Given the totality of the circumstances facing a reasonable officer on that night: that's the standard. ... Officer Montgomery was correct in the shooting; he was reasonable in the shooting."
One of the last witnesses to testify was Sgt. Michael Smith, who supervises instructors at the department's academy. The city brought Smith in as an expert on police shootings and critical incidents.
Smith had been scheduled for a deposition before he had seen a document in the case, according to testimony Wednesday. He took no notes and didn't review any aspect of the case until two days before trial was originally scheduled to begin in March.
Smith concluded Montgomery and the other officers acted reasonably and followed APD policy. He also said he would use the shooting as an example when teaching cadets.
Joe Fine said Wednesday Smith's involvement in the case and trial was an "insult" to Lopez's family and the court, and his conclusion was the most bothersome aspect of the case.
"APD has a standard that if an officer who is under great stress perceives something, he can shoot. People have died because of that standard, and people will die if it isn't changed."
The judge said she would reach her decision by June 20.