June 22, 2017

NM high court sets precedent on suits for damages after shooting by APD

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Photo Credit: Joe Gratz cc

A unanimous New Mexico Supreme Court opinion this week will allow family members of a man killed by Albuquerque police to seek damages in district court. But, the decision also set a statewide precedent that would allow families to sue for damages even after the time limit for a wrongful death claim expires.

All five justices agreed in an opinion filed Monday that the children of Mickey Owings can move forward with a lawsuit against the City of Albuquerque and the Albuquerque Police Department for loss of consortium damages, or damages from losing a spouse or parent. Owings was killed by an officer who was part of the now-disbanded Repeat Offender Project unit of APD in 2010.

The city’s legal department issued a statement NM Political Report, similar to one issued to the Albuquerque Journal for a story earlier this week, noting that the Owings case will be heard in a lower court.

“The Supreme Court’s decision does not decide the merits of the underlying case. It only allows the case to move forward in district court, like any other case. The City will evaluate and present appropriate defenses, like any other case,” the statement read.

A spokeswoman did not respond to whether the city’s legal department is now expecting similar lawsuits going forward or how they might proceed.

Originally, Owings’ family did not file a wrongful death suit. But when the U.S. Department of Justice released its 2014 report on excessive force by APD officers, the DOJ specifically mentioned the death of Owings and said the unarmed man did not pose a threat to the public. Instead, the DOJ wrote, APD officer Kevin Sanchez posed a public threat by firing his gun into a moving vehicle at Owings, the driver. The DOJ added that by shooting Owings, the “probability that [Sanchez] would injure someone with his car increased dramatically.”

APD’s tendency to shoot at people in moving vehicles was one of the DOJ’s key criticisms of the police department.

By the time the DOJ’s report was released, the statute of limitations for a wrongful death claim had expired on the Owings case. That’s when Owings three children, all under 18, sued the city and the police department for loss of consortium damages. The children’s attorney Shannon Kennedy said they are left without a father and no longer view police as a helpful and protective presence in the community.

“To have that illusion ripped from a child is very difficult,” Kennedy told NM Political Report.

Surveillance video of a Wal-Mart parking lot on the westside of Albuquerque shows Owings in an SUV pull up next to another car that was reported stolen. Meanwhile, officers in unmarked cars had already recovered the vehicle and were watching it from a distance. As the passenger of Owings car got out and approached the stolen vehicle, police surrounded the two. While attempting to drive away, Owings backed into an unmarked police car, then drove into an unoccupied car parked in front of him.

Sanchez approached the fleeing vehicle on foot and shot Owings while he was driving away. Owings lost consciousness and his vehicle came to a stop a short distance away and died on the scene. Originally an Albuquerque district court judge ruled in favor of the city and police, whose lawyers argued the time limit for the lawsuit was up and a loss of consortium claim was invalid without a wrongful death suit.

Kennedy took the lawsuit to the state Court of Appeals, where judges ruled in favor of Owings young children. The city and police attorneys then challenged the issue in the Supreme Court.

Generally, a loss of consortium claim is filed along with a wrongful death lawsuit as a way to compensate for the loss of a relationship, often between spouses or parents.

Kennedy said regardless of Owings’ actions in the spring of 2010, he was still a father to his children.

“Often times, the one thing they’re doing right in life is they’re good parents,” Kennedy said.

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