(CN) — Two New Mexico police officers asked the 10th Circuit on Wednesday to grant them qualified immunity from a lawsuit filed by the family of a woman killed by her ex-boyfriend who worked for the same police department.
On April 21, 2016, Nikki Bascom told Silver City Police Chief Ed Reynolds that her ex-boyfriend, Capt. Mark Contreras, stopped her car and took her phone.
The police department put Contreras on administrative leave at 1 p.m. but ignored Bascom’s complaints as Contreras followed her to a domestic violence shelter where she tried to obtain a restraining order. By 4:30 p.m., Contreras had killed Bascom and committed suicide.
Bascom’s mother, Karri Dalton, sued the Silver City Police Department in October 2016 on behalf of her two grandchildren, claiming the police refused to help Bascom because her killer was a fellow officer.
Chief U.S. District Judge William Johnson of New Mexico denied qualified immunity for Reynolds and Capt. Ricky Villalobos in March 2019, rejecting arguments that their policy prohibited them from arresting Contreras that day on Bascom’s complaints.
The policy drew more criticism before the 10th Circuit on Wednesday.
“I want to make sure I understand what you are arguing. You are arguing that a policy that favors employees of the police department of Silver City in domestic violence cases is not an inappropriate classification?” said U.S. Circuit Judge Carlos Lucero, a Bill Clinton appointee.
Attorney Cody Rogers of the Las Cruces, New Mexico, firm Jarmie & Rogers, tried to pivot to case law precedent, but Lucero pressed the question.
“That policy has a rational basis attached to it,” Rogers said. “The internal affairs policy for the Silver City Police Department requires criminal investigations for their own officers be conducted by another police department. Those investigations have to be referred out to a different law enforcement agency in order to avoid the conflict of having a police department police itself.”
The panel quickly identified a weakness in such a plan.
“If there’s a murder by a police officer and it’s clear it was unlawful and premeditated, they would not arrest him for murder, they’d have to refer it out?” asked Chief U.S. Circuit Judge Timothy Tymkovich, appointed by George W. Bush. “That’s a pretty dumb policy.”
The family’s attorney, Laura Schauer Ives of the Albuquerque firm Kennedy Kennedy & Ives, agreed.
“It is an outrageous policy,” Ives said. “They believed they could have arrested Captain Contreras, but they made the determination that the policy prevented them from doing so.”
Still, Tymkovich wondered why individual law enforcement should be held personally liable if they were following the rules.
“Both officers believed they had probable cause, they believed they could have arrested him, and they elected not to,” Ives said.
U.S. Circuit Judge Robert Bacharach, an Barack Obama appointee, rounded out the panel.
Sixty viewers tuned into the hearing held remotely and broadcast through the 10th Circuit’s YouTube Channel. Although comments were disabled, the hearing received eight likes.