An Albuquerque police officer fired three years ago after he was shown on hotel security video repeatedly kicking a suspect was a "sacrificial lamb" who deserves to be reinstated with back pay and full seniority, his lawyer says.
Attorney Shannon Kennedy appealed former officer John Doyle's firing in state District Court last year, and earlier this month added a supplement claiming two officers who testified against Doyle in a November 2012 personnel board hearing contradicted their sworn testimony in another hearing a year later.
Kennedy said in the appeal that Doyle was made into a "sacrificial lamb" by then-APD Chief Ray Schultz to try to stave off a federal investigation into whether APD was systematically violating residents' constitutional rights, particularly through the use of deadly force. The Department of Justice did launch such an investigation, which is continuing.
The appeal said Doyle never intentionally kicked suspect Nicholas Blume in the head during the arrest in a hotel parking garage that led to Doyle's firing. The city stands by the firing and said it intends to oppose allowing the supplement to be considered.
Meanwhile, the city finds itself in the position of arguing against Doyle's reinstatement at the same time it must defend him in a federal civil lawsuit filed against him on the suspect's behalf.
Last month, Blume sued both Doyle and APD officer Robert Woolever, who also was fired, seeking damages for pain and suffering allegedly incurred when the two officers tackled and kicked him during the arrest.
City attorney David Tourek said it is city policy to contract out conflict cases like this to a private attorney, which the city has done.
Kennedy, an attorney who has successfully sued APD officers and the department in recent years over allegations of excessive force, said in an interview that Doyle is an "excellent officer" who was acting in the best interest of safety for himself and a fellow officer during the incident in the parking garage.
At issue is whether Doyle used unreasonable force during the arrest of Blume in February 2011. After crashing a car with another suspect inside, Blume ran into the hotel parking garage. The police gave chase. Woolever tackled Blume and Doyle can be seen in hotel surveillance video kicking Blume several times while Woolever was on Blume's back, trying to handcuff him.
The city, in court documents, claims Doyle aimed his kicks at Blume's head and that the amount of force Doyle used violated APD's standard operating procedures and was excessive.
The city also claimed in firing Doyle, a decision the city personnel board hearing upheld, that Doyle's version of events in the subsequent police report and Internal Affairs investigations were inconsistent.
In a statement issued this week, Kennedy said the city terminated Doyle "for bringing Blume, a known member of the Aryan Brotherhood, into handcuffs within 16 seconds of being tackled and deploying kicks to his upper body."
She said Blume was a physically powerful fleeing felon who reached under his shirttails while he was running as if he were armed, and then failed to produce both hands as Woolever tried to handcuff him.
Doyle has said he intended to kick Blume in his shoulder to distract him as Woolever tried to secure his right hand, which Blume had tucked under his body.
The video shows some of the kicks hitting Blume's head.
Video not enough
The appeal contends the surveillance video alone is not sufficient evidence to determine whether Doyle's force was reasonable or excessive. Kennedy contends Doyle never intended to kick Blume's head and that the kicks stopped as soon as Blume's hands were secured. She added that Blume suffered only minor abrasions.
Schultz fired both Doyle and Woolever months after seeing the video, which he said gave him "very serious concerns" about the level of force used.
In her supplement, Kennedy argued that two officers' statements at a 2013 Law Enforcement Academy hearing about the status of his law enforcement certification were different from their statements in the 2012 personnel hearing, held after Doyle first appealed his firing. The statements involved whether one of Blume's hands remained hidden while Woolever tried to handcuff him and while Blume kicked him.
One of the officers said in the later academy hearing that Doyle stopped kicking Blume when Woolever secured Blume's free hand and that the contact up until that point was "reasonable." And the other officer said that he told IA investigators he could not definitively conclude, based on his frame-by-frame review of the surveillance video, that both of Blume's hands were secured until the very end of the encounter.
The city, in its response to Kennedy's appeal, said it was clear Doyle used excessive force and that the personnel board made an objective, fair decision.
At the personnel board hearing in November 2012, an officer testified that the FBI wanted the file on Doyle "and several others" to investigate.
Kennedy said there is no ongoing investigation involving Doyle.
"The city of Albuquerque has spent millions of dollars in legal fees protecting the careers of officers who shoot mentally disabled people, while terminating an officer who bravely went hands-on to take a very dangerous person off the streets," Kennedy said in her statement.
A day after Blume filed his federal civil suit against Doyle and Woolever, he was arrested on a federal gun charge. He pleaded not guilty to that charge earlier this month.
Woolever filed an appeal in district court against the Law Enforcement Academy, which revoked his law enforcement certification. He has not filed anything against the city in district court.
Copyright 2014 - Albuquerque Journal, N.M.
McClatchy-Tribune News Service