Excessive force allegation heads to trial

Española officers, combative paraplegic at heart of lawsuit

Did Española police use excessive force against a paraplegic amputee when they Tasered him several times and arrested him? Or was the physically handicapped man so combative during a confrontation with police responding to a domestic dispute call that the officers’ use of force was appropriate?

Those are among the questions a jury will be asked to resolve in a multi-layered civil lawsuit set for trial next week in federal court in Albuquerque. The paraplegic man’s widow is suing police officers and the city for damages.

The lawsuit by Jackie Martinez on behalf of Russell Martinez’s estate, filed by Santa Fe attorney Todd Coberly, alleges excessive force, violation of civil rights, missing evidence about Taser use and violations of the Americans With Disabilities Act stemming from the 2012 scuffle with police.

The suits says Russell Martinez was pulled from a car, thrown to the ground, punched, kicked and Tasered by officers who were called to an Española fast food restaurant after the Martinezes got into an argument.

Police say Russell Martinez, who died from illness about three years after the incident, hit an officer with a car door, then punched him and tried to bite a passer-by who had joined in to help the officer before Martinez was subdued with Tasers.

Martinez was arrested again later the same day — this time by the Rio Arriba County Sheriff’s Office, not Española police — after another argument with his wife. The case is complicated by the fact that Martinez, one of the officers involved and a purported witness all had prior arrests and/ or convictions, sparking court arguments about whether the prior incidents are admissible evidence.

The witness, manager of the Sonic Drive-In where the scuffle between Martinez and officers took place, had criminal charges pending for three years in a case investigated by Española police. One week prior to giving a deposition in the Martinez lawsuit, the charges were dismissed, according to a court filing on behalf of the Martinez estate. The city’s lawyer says the estate’s side is just trying to smear the witness.

Martinez, of Chimayó, died in November 2015 at age 53 after a long illness, says his published obituary. The lawsuit over his 2012 encounter with police says Martinez was left a paraplegic after he was shot in 2006, resulting in the amputation of his lower left leg and “no feeling in his lower body.”

Tussle at Sonic

On May 11, 2012, Martinez and his wife drove to the Sonic to get a Slushy, then began arguing. Mrs. Martinez took the car keys and asked bystanders to call police.

Office Joseph Salazar, no longer with the Española police, was dispatched. Russell Martinez had moved to the driver’s seat before officers arrived.

Mrs. Martinez told Salazar that she and her husband had argued and that Martinez “was paraplegic,” but never told the officer that Martinez “had physically harmed her,” the lawsuit says. It states that a wheelchair was visible in the back seat when Officer Salazar opened the driver’s side door and told Martinez to get out, and Martinez responded “he could not get out … because he was immobile and the shut the door.”

Salazar opened the door, forcibly removed Martinez, threw him on the ground, punched him in the face “and placed the weight of his body on plaintiff’s (Martinez’s) back,” the suit maintains.

Even though Martinez was on the ground and unable to flee, Salazar “drive-stunned” him with a Taser, according to the suit. It maintains that Martinez “struggled on the ground in an attempt to remove himself” from Salazar and, meanwhile, Officer Greg Esparza arrived and shot Martinez in the chest with a Taser from about three feet away.

Martinez was transported to a hospital, but no charges were brought.

Officer allegedly punched

Mark Basham, attorney for the police defendants, has maintained that “officers Salazar and Esparza were not aware of plaintiff’s disability until the time he was treated by paramedics.”

Court documents filed by the defendants allege that Martinez yelled an epithet when Salazar asked him to get out of the car, “slammed the door nearly crushing Officer Salazar’s fingers” and locked the door, then opened it and hit Salazar with the door. “Then he hit Officer Salazar with a closed fist on the side of his head,” the defendants maintain.

Martinez allegedly attempted to grab the officer’s gun as they grappled outside of the car before he was Tasered.

The Tasing “had no appreciable effect” and, to a passer-by who tried to help Office Salazar in the struggle, “Martinez appeared to be high on drugs,” the suit maintains. The passerby also said he heard Martinez say “he had HIV/AIDS as Martinez tried to bite” the man’s arm and leg, defense documents state.

Coberly, Martinez’s lawyer, argued in a motion to conclude the case without a trial that the officers’ use of force was unreasonable.

“It is difficult to imagine how dragging a paraplegic man ‘like a dog’ to the ground, then dragging him across it, then repeatedly punching, Tasing and kicking him while he lies immobile on the ground, could ever be considered justified,” Coberly maintained. He argued that Martinez “had committed no crime, was not a threat to flee, and posed minimal risk to officer safety.”

The defendants’ assertion that the officers were not aware of Martinez’s disability” until the time he was treated by paramedics … is highly disputed,” the same motion states. It continues that Martinez “does not wear a prosthetic leg” and “his partially amputated leg was visible and apparent during the entire incident.”

But the city defendants say that, until Martinez was under control and handcuffed, “the scene was unsecured due to the scuffle” and that officers “were not required to accommodate plaintiff’s disability until such time as the scene was secured.”

Priors on both sides

Martinez had been arrested and convicted of crimes on a handful of occasions prior to the incident, but never by the Española police, his lawyers say.

A document filed by the lawyers says:

“Mr. Martinez pleaded guilty to aggravated driving under the influence and careless driving in 2002, and misdemeanor battery against a household member in 2004. He was also arrested in 2004 for aggravated assault against a household member and battery against a household member, but those charges were never brought to trial. He was arrested in 2009 for attempted aggravated battery against a household member, aggravated assault against a household member, and criminal damage to property, but those charges were eventually dismissed. Finally, he was arrested in 2011 for aggravated battery, aggravated assault, tampering with evidence, and assault upon a police officer. Those charges were also dismissed. None of Mr. Martinez’s prior arrests or convictions involved Española Police Department.”

Martinez’s side maintains that the other arrests and convictions are irrelevant to the lawsuit case and allowing them to be discussed at trial “presents enormous risks of juror confusion and unfair prejudice to plaintiff.”

Also, former Officer Salazar was twice charged with battery on a household member in 2012. One case was dismissed and the other was sent to a pre-adjudication diversion program, court documents state.

Officer Esparza was involved in a 2013 Tasering and arrest of an elderly Española couple in which police were called because the couple’s son was overdosing, the Rio Grande Sun newspaper reported recently. The city’s insurance company settled a lawsuit with the couple in a 2016 agreement for $650,000 to avoid a trial, the Sun reported.

Hermenjildo Quintana Jr., a “purported neutral eyewitness” to Martinez’s fight with police and the Sonic manager on duty at the time, is expected to testify.

Quintana Jr. had five felony convictions in 2010 and four felony charges filed in 2012 by Española police, which were dismissed “shortly before he provided testimony favorable to defendants in this matter by way of disposition,” according to a motion from the Martinez estate’s side. Quintana admitted he bought alcohol for three underage girls, one an employee he supervised, and “had sex with one of them after she had passed out drunk, and had taken numerous photographs of the victim after having sex with her,” the motion states.

Online court records show Quintana faced one charge of second-degree criminal sexual penetration and three counts of contributing to the delinquency of a minor. The charges were filed in August 2012, about three months after the struggle between Martinez and officers at the Sonic, and there appears to have been no subsequent court action or filings before the charges were dismissed in July 2015 “without prejudice,” meaning they could be refiled.

The Martinez motion asks that his attorney be allowed to question Quintana about past convictions and charges “and the circumstances of their dismissal … to uncover Quintana’s possible bias in testifying as a witness for defendants.”

Basham, for the city defendants, maintains the Martinez estate’s lawyers want to question Quintana only to smear him and “cause a distraction at trial” based on mere speculation about disposition of the 2012 charges.

U.S. Federal District Judge Kenneth Gonzales has ruled that some questioning of Quintana’s past charges and Martinez’s prior arrests will be permitted.