Bernalillo County Sheriff’s deputies at the scene of the fatal shooting of Elisha Lucero in July 2019. (Dean Hanson/Albuquerque Journal)
ALBUQUERQUE, N.M. — Without a state Civil Rights Act, people who believe they were wronged by a state or local government official are limited to either filing in state court under the state Tort Claims Act or a civil rights claim in federal court.
“There are a lot of considerations in deciding which court to file a case involving police,” local civil rights attorney Phillip Davis said. “Do you want to bring a lawsuit against a Raton police officer in Raton?
“Would a jury worry about an award for damages increasing their taxes?”
On the other hand, state jury pools are chosen from everyone holding a driver’s license, while federal jury pools are chosen from registered voters.
“Federal jury pools may be older and more conservative,” Davis said.
Unlike the federal Civil Rights Act, the state Tort Claims Act caps damages to $400,000 and medical damages in the same incident to $350,000. There are no punitive damages allowed under the act.
In federal court, there are punitive damages allowed and there is no cap to damages a jury can award.
In state court the attorney’s fees come out of the jury award to the person bringing the lawsuit, usually one third of the jury award or settlement. In federal court awards of “reasonable” attorney fees are decided by the judge hearing the case and are not dependent on amount awarded by the jury.
In a wrongful death case, for example, New Mexico law also recognizes “comparative fault” or shared negligence, so a jury can decide the person bringing the lawsuit was partially responsible for the wrongful actions of the public employee. The jury can reduce the award to the person bringing the lawsuit based on how responsible the plaintiff was in the incident that led to the lawsuit.
That’s not the case in a federal civil rights lawsuit.
It’s complicated, but some attorneys like Shannon Kennedy and her firm take a hybrid approach by initially filing a lawsuit under the state Tort Claims Act to avoid a qualified immunity defense at an early stage in the case.
That approach has led to large verdicts and settlements in police shooting cases, like the 2010 shooting death of Iraq war veteran Kenneth Ellis for almost $8 million and the 2014 shooting of homeless mentally ill camper James Boyd for $5 million.
The legal process of gathering evidence like sworn testimony, getting police lapel camera video and police reports comes to a halt in federal court when the defendants file a motion to dismiss the lawsuit because of qualified immunity.
That can tie up the case for years.
After gathering evidence under the state Tort Claims Act, Kennedy can then amend the lawsuit to include individual claims against the police officers involved to include civil rights claims under federal law in state court.
The federal claims effectively remove the monetary caps set by the Tort Claims Act.
At that point, the defendants can remove the lawsuit to federal court or allow it to continue in state court.
In either court the attorneys for the police officers can raise a qualified immunity defense.
In some cases, like the shooting death of Elisha Lucero, 28, last year by Bernalillo County Sheriff’s deputies, government attorneys and insurance companies settle the civil lawsuits without ever reaching the point where qualified immunity comes into play.
Lucero had been exhibiting symptoms of psychosis since she had surgery to remove a brain tumor in 2018, according to the lawsuit filed by Kennedy’s firm.
The family called the sheriff’s office and when deputies responded to the call, they shot Lucero 21 times. She died at the scene.
Sheriff Manny Gonzales said Lucero was charging deputies with a kitchen knife. The department does not use lapel cameras.
Kennedy filed a wrongful death lawsuit in state court on behalf of Lucero’s family. In March, Bernalillo County settled the case less than two months after it was filed in state court for $4 million. Gonzales said he vehemently disagreed with the settlement.
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