Albuquerque Police Misconduct Payouts Soar

By Jeff Proctor
Albuquerque Journal, N.M.

The cost totaled $8 million in 2010 and 2011 combined compared with just shy of $10 million paid out in cop cases over the course of the eight years prior.

Police misconduct cost Albuquerque taxpayers more than $8 million in 2010 and 2011 combined.

That's compared with just shy of $10 million paid out in cop cases over the course of the eight years prior.

Shortly after taking office in December 2009, Mayor Richard Berry did away with his predecessor Martin Chavez's general policy of not settling police misconduct cases -- a practice harshly criticized by a federal judge. The change was condemned by the police union, but praised by lawyers who represent plaintiffs.

Chavez, now running for the congressional seat that represents Albuquerque, has been a strong defender of his limited settlement policy.

"We already know (the policy) has been incredibly successful financially for us," he said in 2005. "Instead of paying out on every case, we're prevailing in almost every case."

But Rob Perry, Albuquerque's chief administrative officer, said the Chavez administration saddled Berry's team with a high number of unresolved cases and said that while payouts have gone up, the city could have lost more money in some cases if they had gone to trial.

The city has spent at least $19 million on police misconduct cases in the past decade. That includes fees and costs for plaintiffs' attorneys, but not what the city has spent on its own lawyers. Those figures were not available.

Berry directed Perry, who was then city attorney, and others to review the nosettlement policy and decide whether considering officer misconduct claims on a caseby-case basis might work better.

"We had a lot of major cases in the pipeline," Perry said, adding that all but five of the 60 payouts in 2010 and 2011 stemmed from cases that were initiated during Chavez's time as mayor.

"We had hoped that the previous administration would've dealt with them, but it didn't. It appeared clear that the liability was going to be fairly strong against the city in a lot of these cases ... It was a difficult decision, but we thought it was in the city's best economic interest to settle."

Only two of those 60 cases went to court -- a 2002 civil rights claim in which a man was traumatized by police questioning him in his home about a crime he was never suspected of committing and a 2009 officer-involved shooting.

The latter resulted in a $4.25 million judgment against APD -- which was reduced to $417,000 because of a state law that caps payouts -- and a stern dressing down from a state District Court judge who said the department's policies are "designed to result in the unreasonable use of deadly force."

City Councilor Ken Sanchez said he favors considering each case on its merits, but settling 58 of 60 cases is "a problem," he said.

"It seems like we've just gone from one extreme to another," Sanchez said.

Perry acknowledged that the shift in policy is at least partially responsible for an increase in payouts under Berry.

A statement from the president and vice president of the Albuquerque Police Officers Association says the policy shift amounts to a lack of support for police officers from the city administration.

"We are trained to make life-altering decisions in an instant," says the statement, which is signed by union president Joey Sigala and vice president Felipe Garcia. "When that instant becomes clouded by the sensationalism of these claims and the feeling that (officers) will receive no support from the city administration, it can cause hesitation. This hesitation can potentially cost (officers) their lives and the lives of those they are sworn to protect."

There are cases stacking up that were initiated since Berry took office.

There were 20 police shootings between January 2010 and August 2011, 15 of which were fatal, and they have spawned at least a half-dozen lawsuits.

Perry said he couldn't comment on the pending lawsuits, but said the city will carefully consider each one.

"If they are close calls where reasonable minds could differ, those cases should be heard in open court," he said. "Because there have been a lot of serious allegations (made by critics of APD and the shootings) maybe that's something that's best decided in the full light of day."

Some exceptions

Chavez's no-settlement policy wasn't hard and fast, especially toward the end of his time in the Mayor's Office.

For example: In July 2009, the city agreed to pay $575,000, including attorney fees, to settle a civil lawsuit brought by a woman who said she was taken out of a hospital and raped by onduty Albuquerque police officer David Maes.

Deputy City Attorney Kathryn Levy said at the time that the settlement represented "an extremely limited exception" to Chavez's no-settlement policy.

Earlier that year, the city reached a $685,000 settlement in a lawsuit filed by the family of Randi Regensberg, a 21-year-old woman who was killed in a murder-suicide by her estranged boyfriend, Cory Kotrba, in 2006. At the time of that settlement, Levy said the policy didn't apply since the lawsuit was not alleging excessive force and it dealt with systemic issues.

In 2005 and 2006, the city paid more than $900,000 to settle claims of sexual assault brought by women against former APD officer Christopher Chase, who was convicted criminally of criminal sexual penetration. Chase's actions also cost the city more than $1 million after a federal jury verdict.

Chavez told the Journal in 2005, after the first settlement in the Chase case, that he was fine-tuning the nosettlement policy.

"That still brings to the fore the question of what happens when there's clear liability. I have no interest when you get a creep like Chase, making a victim go through the rigors of proving liability."

Chavez's last year in office, 2009, saw a handful of cases settled. More than $2.7 million was paid out that year.

Meanwhile, it is not unusual to have cases carry over to a new administration. When Chavez took office for the second of his three mayoral terms at the end of 2001, there were numerous police misconduct cases already sitting on his desk from former Mayor Jim Baca's term. All but one of the cases resolved during Chavez's first two years in office were filed under Baca.

Gumming up courts

CAO Perry said the most important factor in doing away with the no-settlement policy was "doing what's right for the taxpayer."

In contending some cases would cost taxpayers more if they went to trial, Perry pointed to the wrongful arrest of Gabriel Gonzales in 2005. Gonzales had confessed to murder, Perry said, but was later proven innocent. He sued the city.

In July 2010, the city agreed to a structured settlement that cost $1.2 million including attorneys' fees.

"If we had gone to trial there, we very well could've lost $2 million, plus another $500-$700,000," Perry said.

The city's reputation in federal court also weighed on the decision, he said.

In December 2008, U.S. District Judge M. Christina Armijo found that: "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. Such a 'no-litigation' policy reflects a high degree of culpability, is unfairly prejudicial and interferes with the judicial process."

Armijo's 39-page opinion came in the lawsuit filed by Justin Graham over a March 23, 2004, incident at his home. A jury returned a verdict awarding Graham more than $35,000 in damages.

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 Graham with virtually no means of resolving his claims efficiently.

The policy of taking to trial any civil rights claim against APD inevitably means more pretrial legal work for the city, Armijo noted.

Chavez said at the time that: "The policy has served the dual purpose of avoiding the expenditure of tax dollars on frivolous lawsuits and shedding light on police practices."

No accountability

Albuquerque attorney Joe Fine, who has represented clients in police misconduct cases, said the no-settlement policy contributed to a lack of accountability among APD officers.

"Mayor Chavez's policy of not settling police misconduct cases might have saved the city money on a shortterm basis, but, if this pennywise, pound-foolish policy had continued, it would have resulted in more needless injuries and, in the long-run, a greater financial loss," Fine said. "While in the short-term the city is likely to pay less money by applying a 'no settlement policy,' in the long-term, the culture created would result in more unjustified police shootings and more money spent by taxpayers.

"Mayor Berry's policy of settling meritorious police misconduct cases and holding police officers responsible will erode the culture of non-accountability created by the (policy) and will result in fewer unjustified shootings and a substantial savings to taxpayers."

CAO Perry said addressing the accountability issue was among the reasons for changing the policy, but he said that does not amount to a lack of support for officers.

"We support our officers, but when it comes down to financial decisions, those are not made by the officers," he said. Perry said the city is likely to continue considering officer misconduct claims on a case-by-case basis.

He said it's too early to say whether the shift in policy has worked.

"We're continuing to learn, but it's hard to look at an objective decision about whether you should settle or try cases based on two years with backlogged case," Perry said. "If settlement vs. nosettlement works as a global approach? We would need more than two years to see."