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Liability for Tribal Police Officers Questioned

The murky legal issue of who is liable for the actions of tribal police officers cross-commissioned as Santa Fe County sheriff's deputies remains muddled, even as the court record on the question continues to grow.

The latest legal salvo is a lawsuit filed in federal court this month against two former Pojoaque tribal police officers who had county commissions.

The Dec. 12 lawsuit brought by Luciano Trujillo, father of state Rep. Carl Trujillo, charges former Pojoaque officers Zach Garcia and Robert Romero with unreasonable seizure, malicious prosecution and battery stemming from a DWI arrest in March 2011. Trujillo brought a separate suit in state district court earlier this year against the Santa Fe County Commission, Sheriff Robert Garcia and former Sheriff Greg Solano over the same incident.

The difference between the two lawsuits is that the district court filing contends the Santa Fe County Sheriff's Office was negligent in issuing commissions to Pojoaque Pueblo police officers and the more recent federal lawsuit brings claims against the pueblo officers who arrested Trujillo.

"They were the ones that made the arrest," said Santa Fe attorney Richard Rosenstock, who is representing Trujillo in both cases.

Rosenstock added that federal court is the appropriate venue for the lawsuit against the tribal officers because it concerns civil rights issues covered by the First and Fourth amendments of the U.S. Constitution. While the two cases concern the same event, they require different legal strategies, he said.

"In the case in (state) district court, I have to prove one extra step," Rosenstock said. "I have to show that the officers did something wrong and that the county is liable because of negligence in commissioning the officers."

The latest action comes on the heels of the New Mexico Court of Appeals ruling in a separate case last month affirming a lower court's decision that the county had no duty to defend or indemnify another Pojoaque police officer for acts committed under his county law enforcement commission.

The appellate court found that, while Officer Glenn Gutierrez was commissioned by the county to carry out state law enforcement on its behalf, that didn't make him a county employee.

The Appeals Court's opinion states "such a commission did not make Officer Gutierrez a 'public employee' of the County but merely conferred upon him jurisdiction to act lawfully when enforcing state and local laws."

The opinion was recently added as a supplement to the county's motion to dismiss the pending district court case.

"Right now, we're thinking we're correct -- the county shouldn't have that liability," said Santa Fe County Attorney Stephen Ross. "The same issue is presented in the Trujillo case, but not in the same way."

A motions hearing on that matter is scheduled before state District Court Judge Raymond Ortiz on Jan. 15.

The legal questions center around the now-suspended practice of the county to cross-commission, or deputize, Pojoaque tribal police officers, allowing them the authority to enforce laws within the county but outside the boundaries of the pueblo.

Ross noted that the county has similar cross-commissioning agreements with several other law enforcement agencies, including the Santa Fe police, New Mexico State Police, Bernalillo and Los Alamos counties, and Tesuque Pueblo.

He said negotiations to renew the agreement with Pojoaque Pueblo have been at a standstill because the county and pueblo can't agree on who should carry the liability for the officers when they make arrests of non-Indians outside the boundaries of the pueblo -- as was the case with Luciano Trujillo.

Sheriff Robert Garcia revoked the commissions for Pojoaque officers more than a year ago following a public meeting in Nambe at which Garcia was bombarded by complaints over tribal officers exercising their authority over non-tribal members.

One of those who spoke out during that meeting was Luciano Trujillo, who claims in his lawsuits he was subjected to harassment and brutality, as well as false charges, after being arrested for DWI on March 21, 2011, the evening of a Democratic Party event.

The DWI charge and other counts against the elder Trujillo were eventually dismissed by the District Attorney's Office.

Lawsuits: Stop was 'pretextual'

Trujillo's federal and state lawsuits suggest politics may have come into play as a reason for the arrest.

Pojoaque Pueblo's leadership had long supported the late, long-time state Rep. Ben Lujan, including in the 2010 Democratic primary race where Lujan narrowly defeated Carl Trujillo to earn the party's nomination. Trujillo won the seat two years later, when Lujan chose not to run, citing illness.

According to lawsuits, Trujillo and his son attended a Democratic Party ward meeting in El Rancho at which Carl Trujillo's side defeated the Lujan faction in a ward election.

After the meeting, the Trujillos met at Gabriel's Restaurant in Cuyamungue where Luciano Trujillo ordered a beer. They didn't stay long, however, because Lujan's son, Jerome, was at the restaurant with his wife and "there was a feeling of discomfort about being at the restaurant with Mr. Lujan due to bitterness he had shown over Carl Trujillo's having run for state representative in 2010 and over the results of the ward meeting that night," the lawsuits say.

While traveling on U.S. 285 on his way home, Luciano Trujillo noticed he was being followed by tribal officers Garcia and Romero in separate patrol units. "Upon information and belief, Plaintiff further alleges that the Pojoaque Tribal police had been notified to look for Carl Trujillo's vehicle and/or Plaintiff's vehicle and stop it," the complaint states.

Officer Romero did attempt to stop Trujillo's truck while still on U.S. 285, but Trujillo pulled into the parking lot of a business that he knew was not on Pojoaque Pueblo property. When the officers followed him into the lot, Trujillo angrily confronted them.

The federal lawsuit states that because the officers had no reasonable suspicion to believe Trujillo had committed a traffic violation or crime, they had no legal right to detain him. The stop "was unreasonable and violated his Fourth Amendment rights. In fact, the stop was pretextual," the complaint states.

The officers told Trujillo that he was being stopped for driving too slow.

While being arrested, Romero allegedly grabbed Trujillo's arm and forced it behind his back, causing him considerable pain, and otherwise roughed him up, according to the complaint. Trujillo, who had a history of hypertension and heart disease, then started experiencing chest pains, according to the complaint. After arriving at the Pojoaque police station, Trujillo was allegedly dragged out of the car and dropped onto the pavement.

A blood test was taken at Christus St. Vincent Regional Medical Center where Trujillo was transported for treatment of his ailments. The blood test registered a blood alcohol level of 0.05. The level of presumed intoxication in New Mexico is 0.08 percent.

The next day, Romero filed a citation for DWI against Trujillo in Santa Fe magistrate court. Trujillo's federal suit says Romero filed the charge "while acting pursuant to the deputization he had received from the Santa Fe County Sheriff's Department."

Conflicting views

While the focus of the federal lawsuit is on the Pojoaque officers, Trujillo's lawsuit in state court blames the Sheriff's Office.

"Even though (the officers) are not county employees under the Civil Rights Act, the issue is if they acted under the color of a county deputy sheriff," Rosenstock said. "In the (state) case, I'm saying that Sheriff Garcia was a law enforcement officer and a public employee, and he's the one that caused the injuries by improperly granting commissions."

Rosenstock said Garcia engaged in a practice of "randomly commissioning officers."

"(The county's) position is that they have no responsibility over who they commission. Yet, they could commission Charles Manson and wouldn't they be responsible for that?" Rosenstock said. "Or, say they fire a deputy and then that deputy gets a job with Pojoaque and gets a sheriff's commission. Don't they have liability for that?"

Sheriff Garcia doesn't think so.

"I don't supervise them and I don't hire them," he said of tribal police.

In its motion to dismiss, the county has argued that New Mexico courts have consistently rejected government liability where the officer is not a "public employee" of the governmental entity as defined under the Tort Claims Act.

"At the end of the day, the tribally employed police officers are not 'public employees' or 'law enforcement officers' within the meaning and definition of the Tort Claims Act, and there is no waiver of immunity for alleged negligence in commissioning or deputizing of such non-employee officers by the County Sheriff ... or the Board of County Commissioners," the county's motion reads.

Meanwhile, Santa Fe County and Pojoaque Pueblo have not had a commissioning agreement since the sheriff revoked commissions 15 months ago, meaning pueblo officers aren't making the arrests or traffic stops of non-Indians that they handled in the past in the north part of Santa Fe County.

The liability issue remains a point of dispute. Though both sides seem unwilling to budge, Garcia said he still holds out hope something can be resolved.

"I'm hoping we can agree on something soon with regards to that, but at this point we aren't able to come to an agreement on mutual aid and be able to cover liability," Garcia said.

Garcia said covering liability for all of the officers commissioned by his office is not practical and he doesn't have the budget for it. "It's not reasonable and it's not going to happen," he said.

Garcia said the commissioning agreement with Tesuque Pueblo, which carries the liability for its tribal officers, is working out well. He'd like to see that same arrangement renewed between the county and Pojoaque.

"My main concern is providing the best public safety, with their help, up in the northern part of the county," he said.

When Garcia first revoked the commissions for Pojoaque officers, he assigned more deputies to the area, spreading his force thinner than it already was. Since then, Garcia said he's been able to hire more deputies and put more in the field, including in the Pojoaque area.

"The response I'm getting from up north is that they are seeing more deputies up there, so we are addressing public safety," he said.

Pueblo doing 'fine'

Pojoaque Pueblo Gov. George Rivera didn't disagree. He said he's satisfied public safety is being addressed, even without the commissioning agreement.

"We're fine with it. We have seen an increase in the sheriff's role out here in Pojoaque," he said, adding that the sheriff's office is impacted more by the lack of an agreement. "Either way, it's an increase to their budget. It helps our budget because our officers don't have as much work to do."

As for the case against Officer Gutierrez, who the appellate court affirmed the county had no duty to indemnify, Rivera said he wasn't sure if the pueblo would appeal the ruling.

"Our insurance company is handling that case. We'll talk to them to see what they want to do," he said. "Our opinion is the appellate court was wrong, but whether we spend the time and money on that is still in question."

Copyright 2013 - Albuquerque Journal, N.M.

McClatchy-Tribune News Service

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