November 20, 2015

City says there is no right to ‘adequate’ police investigation

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From the scene of the June 7, 2012 accident.

If someone commits a crime in New Mexico, state law says that law enforcement must investigate it.

From the scene of the June 7, 2012 accident.

From the scene of the June 7, 2012 accident. Photo from the Albuquerque Metropolitan Forensic Science Center.

But the Albuquerque city attorney’s office says that doesn’t mean the investigation has to be thorough.

This interpretation of state law coming after an accident that left two people with permanent brain damage has local attorney Antonia Roybal-Mack up in arms.

“What they’re saying is if they sit there and eat Cheetos, as long as they show up, that’s all they have to do,” she said.

Roybal-Mack represents six family members who were in a van on the evening of June 7, 2012 that T-boned a car that ran a red light. The front passenger in the van, Betty Melendez, has testified that she has no memory of her life before the accident. The other victim was the then-5-year-old son of Chantell Gallegos, the woman who drove the car that ran the red light. The child suffered injuries that will have him functioning as a 5-year-old for the rest of his life, according to Roybal-Mack.

Roybal-Mack is representing the Melendez family, which is suing the city for personal injury and loss of consortium. The father of the injured boy is also suing the city.

But it was what happened before the accident that has Roybal-Mack questioning the Albuquerque Police Department and officer M.H. Maycumber.

Catch and release after hit and run

Maycumber responded to a hit-and-run incident caused by Gallegos earlier on the afternoon of June 7, 2012 at an intersection between Locust Street and Central Avenue in downtown Albuquerque. The police report Maycumber filed said that Gallegos hit a car a little more than four hours before the later, more serious accident.

Gabriel Ortiz, the man whose car Gallegos hit, followed her and called the police. Maycumber responded to the call and caught up with Gallegos at the Smith’s gas station on Coal Avenue and Yale Blvd. Ortiz told Maycumber that Gallegos’ appearance “looked strung out.”

In a deposition from the lawsuit conducted this past July, Maycumber testified that Gallegos’ “entire appearance looked strange.”

“Well, she’s got that look about her where her affect doesn’t match what she’s talking about,” he said, according to transcripts.

But Maycumber said he attributed this behavior to possible mental illness and not intoxication. Because of that, he didn’t ask Gallegos if she was on any medications or give Gallegos a field sobriety test. When Maycumber asked Gallegos about the 5-year-old in her backseat, she told him that her child was 7 years old, which wasn’t true. The child, who at the time weighed about 50 pounds, also wasn’t in a booster seat, which state law requires for children less than 60 pounds.

NM Political Report was unable to contact the lawyer representing the child’s father.

According to his testimony, Maycumber checked the wrong boxes on his report regarding damage to the vehicles. He also asked Gallegos about a man who Ortiz said left her vehicle following the first crash.

A court filing from Roybal-Mack accuses Maycumber of doing “nothing to investigate whether the male that fled from Ms. Gallegos’s vehicle had outstanding warrants.” Maycumber testified that Gallegos wouldn’t give him any information about the man who fled from the scene.

Gallegos also couldn’t give Maycumber an insurance card, and the legal filing accuses him of not attempting to find out whether her car was properly insured. Maycumber ended up citing Gallegos for failure to provide insurance, failure to obey a traffic signal and for a misdemeanor hit and run.

Maycumber then let Gallegos go.

About four hours and 20 minutes later, Gallegos ran a red light at the intersection of Coal and Oak and the van carrying the Melendez family plowed into the side of her car.

After her second accident that day, Gallegos told police that she regularly takes Suboxone, a drug used to treat opioid addictions which contains an opioid derivative. She said she had not taken Suboxone since the day before the accidents. The label on the drug warns against driving or operating heavy machinery while using the drug, until the person taking the drug knows how it will affect them.

In Maycumber’s deposition, he acknowledges that he never proved Gallegos didn’t take Suboxone that day and said doing so would have required a search warrant.

“We’re not going to violate someone’s rights just to draw blood from them,” he said.

Roybal-Mack argues that Maycumber could have done several things to prevent the accident that occurred later that evening, including towing the vehicle, attempting to locate the male passenger who fled or arresting Gallegos.

“The officer could have called the DWI unit,” Roybal-Mack said. “He didn’t do it.”

City says no right to ‘an adequate investigation’

In a hearing held this month in the Albuquerque District Court, Assistant City Attorney Kristin Dalton said that the Melendez family’s allegations amounted to whether “Officer Maycumber failed to adequately investigate.”

“What’s clear in this case, is that Officer Maycumber did, indeed, investigate the first accident,” Dalton told the court. “The plaintiffs have not provided this court with any case law that suggests that they have a right to an adequate investigation, and so, therefore, the plaintiff’s claim fails pursuant to the Tort Claims Act.”

Dalton went on to say that “there was no failure to adequately investigate the first accident” but also that “plaintiffs have not pointed to any right, law or anything that would entitle them to provide them a right to an adequate investigation by law enforcement officers.”

Dalton repeated a variation of this argument at least four more times, according to court transcripts. One of them included the plaintiffs’ alleged failure to cite “any law that guarantees them the right to a safe roadway or places a duty on Officer Maycumber to provide them with a safe roadway.”

She also claimed that the plaintiffs couldn’t show whether or not Albuquerque police officers are legally required to follow their own standard operating procedures, or SOPs.

“The plaintiffs haven’t claimed or haven’t shown that there is a law that requires Officer Maycumber to follow SOPs or that he owes a duty to the plaintiff to follow those SOPs,” Dalton argued. “The SOPs are in place, with regard to the Albuquerque Police Department, for its officers to follow as a condition of their employment. There’s nothing that—in our laws, that I could find, that guarantees the plaintiff a right of Albuquerque Police Department officers to follow those SOPs.”

Roybal-Mack called the city’s arguments “insane” and said she’s never seen such “blatant disregard for the rules.”

“What’s sad is there are a lot of officers who do a very good job,” she said. “Instead of saying, ‘Look, you should have done a better job,’ they say, ‘You don’t have to meet the standards that all these other officers who are busting their butts every day follow.’”

A spokeswoman for the city did not answer inquiries from NM Political Report about the city’s legal arguments before press time.

District Court Judge Denise Barela-Shepherd eventually ruled that Maycumber did in fact investigate the first accident but didn’t address whether the investigation was adequate. Roybal-Mack said she plans to appeal this ruling.

A trial is currently set for January on whether Maycumber properly followed safety protocol for whether the 5-year-old child who suffered a brain injury was properly restrained in the car.

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