Children of man killed by APD can sue

Supreme Court rules wrongful death lawsuit not necessary

Supreme Court justices say the children of a man shot and killed by Albuquerque police can sue the city for their loss, even though a wrongful death lawsuit was never filed.

At issue are loss of consortium claims, which can be filed by spouses, parents and other relatives who have suffered distress over harm to a close relationship. Such claims usually come as part of or in conjunction with a wrongful death or personal injury lawsuit.

Justices Monday affirmed a decision by the Court of Appeals and wrote that the two claims don’t have to come together. They sent the case involving the 2010 death of Mickey Owings back to District Court in Albuquerque, where it was dismissed in January 2015 by Judge Denise Barela-Shepherd.

Officer Kevin Sanchez shot and killed Owings in a Wal-Mart parking lot while investigating a stolen car. Plainclothes officers surrounded Owings, who was shot after he backed into an unmarked police unit and hit parked vehicles in an attempt to escape.

In April 2014, the federal Department of Justice as part of its investigation into APD’s excessive force pattern said police recklessness led to the shooting. The DOJ said Owings did not pose a threat to the officer or anyone else.

Shannon Kennedy, the attorney representing Owings’ three children in the lawsuit, said by the time the family learned that the shooting was unconstitutional, the deadline to file a wrongful death claim had passed.

The Owings children then filed a suit against the city, former APD Chief Ray Schultz and Sanchez for loss of consortium, which Kennedy said “is a claim filed by a child for the loss of guidance and love from their parent.”

She said she will still have to prove in the loss of consortium suit that Owings’ death was wrongful.

The city wanted the lawsuit dismissed because it wasn’t part of a wrongful death case.

But justices said on Monday that a loss of consortium claim can be brought separately from a physical injury claim because the damages from the injury or loss of a loved one belong to that person, and not to the injured or dead person’s estate. Justices also said in the opinion that police are not immune from liability for loss of consortium claims.

Kennedy called the opinion “ground breaking” and said it offers a “remedy” for “children who were orphaned by police violence.”

But the City of Albuquerque pointed out that the decision “does not decide the merits of the underlying case.

“It only allows the case to move forward in district court, like any other case,” the city’s legal department said in a statement. “The City will evaluate and present appropriate defenses, like any other case.”