Albuquerque Police in the Crosshairs of Federal Oversight

by Wilson Elser
Contact

This is my first entry as a regular contributor to the Municipal & Public Entity section of the Professional Liability Advocate blog. Municipal and public official litigation falls under Wilson Elser’s Municipal/Local Government practice group.

Among other topics, this blog will focus on cases and liability under 42 U.S.C. §1983. Section 1983 is a notably short statute – it covers less than a single page in the United States Code – yet is responsible for a very large volume of federal litigation. This is because section 1983 does not provide substantive rights as such, but rather a procedural mechanism, a cause of action, to enforce rights guaranteed elsewhere by the U.S. Constitution and federal laws.

When the defendant in a section 1983 case is an individual, such as a police officer, liability turns on an objective standard. For example, in an excessive force case the issue is whether the defendant officer used more force than would have been used by a reasonable police officer facing the same circumstances. When the defendant in a section 1983 case is a municipal entity, liability turns on whether the plaintiff’s injuries are caused by a policy, custom or practice of the municipality. A municipality cannot be liable simply because an officer that it happened to employ acted.

Municipal liability under section 1983 was brought into focus by the recent finding of the U.S. Department of Justice (DOJ) regarding the Albuquerque, NM, Police Department (APD). In November 1982, the Civil Rights Division of the DOJ started an investigation of the APD under the Violent Crime Control and Law Enforcement Act of 1994 (42 USC 14141). The DOJ reviewed case files and interviewed supervisors, police officers and members of the public, and on April 10, 2014, it issued a 46-page, single-spaced report detailing the results of its investigation.

The DOJ found reasonable cause to believe that the “APD engages in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment and section 14141.” It specifically found a pattern or practice in the use of deadly force, the use of less than lethal force such as Tasers, and the use of force when interacting with persons with mental illness. The DOJ report found that these patterns were the result of deficiencies in oversight, training and policy.

The DOJ recommended specific remedial measures, including revising use-of-force policies, updating training practices, revising procedures for civilian complaints and internal investigations, strengthening recruitment and eligibility standards, and developing a comprehensive community outreach program.

Case law is unclear on whether a DOJ report would conclusively establish the existence of a municipal pattern or practice for purposes of a section 1983 claim, but at least one case has stated that such a report would be admissible in evidence as a government record. To date, a few cases from the District of New Mexico have referenced the DOJ investigation, but none so far have mentioned the report specifically. As pending excessive force cases against the City of Albuquerque proceed through the court system, it should be interesting to see what specific impact the DOJ report will have.

Ironically, just days after the report was issued, an Albuquerque police officer shot and killed a suspected car thief.

In my next entry in this blog, I will examine the defense of municipal immunity as developed by courts in the state of New York.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.