By Scott Sandlin
Albuquerque Journal
ALBUQUERQUE — The federal judge who found excessive force against Tony Nelson by Albuquerque Police Department officers isn’t backing off his decision, despite the city’s request to do so.
Chief U.S. District Judge Bruce D. Black, in an opinion filed in April, said it would be a “miscarriage of justice” to let stand the jury’s verdict in favor of the defense, and entered a judgment in favor of Nelson, an unarmed, 60-yearold intoxicated man upon whom attack dogs, bean bag rounds and electric current were used repeatedly.
Earlier this month, Black also rejected the arguments put forward by the city to alter or amend his judgment against the city and four individual officers. In a separate order, Black said he would not wait until 2013 for a key witness for the city to return from an overseas deployment before conducting a trial on damages.
Black has scheduled the damages trial for July 2 in Santa Fe.
Police responded in force to a March 3, 2009, argument between two drunken friends that escalated, and in an October jury trial, jurors returned a verdict for the defense.
In a ruling that overturned the verdict after months of review, Black wrote, “No reasonable person could believe that an inhibited, slow-moving 60-year-old individual who made no physical or verbal threats and wielded no weapons could constitute a threat to the safety of any of the 47 armed and shielded police officers who stood 20 feet away.”
Civilian neighbors were evacuated, and snipers were brought in, Black noted.
He entered judgment as a matter of law in favor of Nelson.
The city urged him to change his position, and “prevent the manifest injustice of overturning the jury verdict,” in a May court filing.
Officers acted reasonably under the totality of circumstances, Assistant City Attorney Stephanie Griffin said in court documents, and should be granted qualified immunity.
She quoted from a 1935 U.S. Supreme Court case that said maintaining the jury as a fact-finding body “is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment ... should be scrutinized with the utmost care.”
Nelson’s lawyers - Sharon Hawk, Justin Pizzonia and Johanna Pickel - responded that Black acted within his authority, didn’t misunderstand the facts and accurately identified the crime of which Nelson was accused, aggravated assault, and accurately concluded Nelson posed no immediate threat.
The city’s brief, Black wrote in his June 1 order, “relays numerous facts that were allegedly errant or overlooked” by him, when those facts were addressed in his opinion “in terms nearly identical to those used” by the city. Black said when he used terms different from those the city preferred, the city argued he “should have deferred to their chosen rhetoric. (They) also quibble over immaterial disputes and fault the court for failing to delve into irrelevant details.”
The city brief also elaborates facts and arguments “that are simply in error,” Black’s order says.
Black said there are no mistakes or extraordinary circumstances to warrant the relief requested, and he said a new trial limited solely to the issue of damages will proceed.
Copyright 2012 Albuquerque Journal