Immunity ruling clouds timeline in sex harassment case

Defense argues Glorieta shooting case is relevant to prison workers’ lawsuit

A recent federal court decision that provides legal protection for New Mexico State Police officers involved in the fatal shooting of a Glorieta man has been cited by attorneys seeking to have some defendants removed from a sweeping sexual harassment case against state prison workers.

Lawyers for the six female corrections officers who brought the lawsuit against 23 male colleagues at a Los Lunas prison argued, however, that the cases are not comparable.

While the federal court found there was some uncertainty about whether the police officers’ actions leading up to the Glorieta shooting were illegal, lawyers in the Corrections Department case said women in the U.S. have clearly established rights to be free from gender-based discrimination and sexual harassment in the workplace, and that such cases have been litigated for decades.

It should have been no mystery to their male colleagues — both officers and supervisors — that their behaviors were not legal, the attorneys argued during a hearing Tuesday in a state District Court in Santa Fe.

“We are on the eve of trial in this case, and now they are filing motions to shut the doors of justice in the face of these women who had the courage to speak out,” attorney Shannon Kennedy said after the hearing.

District Judge Francis Mathew denied a request to remove one former corrections officer as a defendant in the case but delayed his decision on two higher-level employees.

The lawsuit, accusing the male corrections workers of “unthinkable and constant sexually based violence and harassment,” was filed more than two years ago.

Recent hearings in the case have focused less on the specific allegations — a series of lurid offenses, including urinating and masturbating in front of the women, calling them obscene names and physically threatening them — and more on whether the men’s public employee status gives them “qualified immunity.”

The legal doctrine protects public workers from being sued over actions they took on the job unless it can be proven that they knew their actions were illegal.

Last month, Mathew granted defense lawyers’ motions to dismiss former Corrections Department Secretary Gregg Marcantel and former Deputy Secretary Joe Booker from the case, based in part on the doctrine.

Mathew ruled that the female corrections officers hadn’t provided enough evidence that Marcantel and Booker were aware of allegations of widespread sexual harassment and violence at the Central New Mexico Correctional Facility and had turned a blind eye to it.

During Tuesday’s hearing, lawyers for the three other defendants argued that their clients should be dismissed from the case as well, based on the same argument.

Mathew denied a motion to remove former corrections officer Shelby Martin and indicated he also intended to reject a request to dismiss former warden Joseph Garcia and Maj. Andrew Sweeney. Just before ruling on the motion, however, Mathew agreed to reserve judgment on Garcia and Sweeney based on a request from their attorneys that he first review the recent 10th Circuit Court of Appeals decision in the case of the Glorieta shooting.

In that ruling, issued last week, the appellate court found that evidence showed state police officers who had surrounded the home of 34-year-old Samuel Pauly one night in October 2011 and shot him through a window had violated the man’s rights by using excessive force.

However, the ruling said, the officers were protected by the doctrine of qualified immunity because no existing case law had established whether the officers’ actions leading up to the shooting were clearly illegal.

The officers had surrounded Pauly’s home under the cover of darkness, allegedly without clearly announcing themselves as law enforcement.

After Pauly and his brother had armed themselves and fired warning shots out the back door, one of the officers fired the fatal shot through an open window.

Pauly’s brother said afterward that he and Pauly had thought the police were intruders planning to invade their home.

The sexual harassment lawsuit is scheduled to go to trial in January, but Mathew said he’s “becoming less and less optimistic” that pretrial motions will be decided in time for that to happen.

He gave both parties two weeks to file briefs on the issue of qualified immunity, but he warned them he likely won’t be able to issue a ruling on the defendants’ motion until sometime in December.

“Qualified immunity has taken away our ability to enforce the constitutional rights of the people,” Kennedy said in an interview later.

“And that’s really frightening. It’s essentially a gutting of the Constitution.”