Thursday, February 2, 2023 | Back issues
Courthouse News Service Courthouse News Service

Officer Isn’t Liable for Child Abuse Arrest

(CN) - A New Mexico police officer didn't violate a 16-year-old mother's rights by arresting her for alleged child abuse after finding razor blades and cigarette butts on the floor, a "vicious pit bull" in the backyard, and smelly black water in the tub.

Albuquerque officer Maureen O'Brien noticed Desiree Herrera's "filthy" apartment while responding to a domestic violence incident involving Herrera and her boyfriend.

O'Brien allegedly found "razors, food, cigarette butts and clothes on the floor," and noticed that "the bathtub was full of black water and had a foul odor."

She also saw a "vicious pit bull chained up in the backyard that had access into the kitchen," according to her report.

Herrera told O'Brien that she was in the process of moving out, and that the tub had been backing up, so she was using someone else's bathroom to bathe her 3-year-old son.

O'Brien arrested Herrera for alleged child abuse based on her concern that Herrera's son "could hurt himself by picking up the razor blades that were on the floor, ingesting the cigarette butts on the floor, being attacked by the pit bull in the kitchen or drowning in the sewage that was in the bathtub."

She was also concerned that Herrera had been drinking the night she fought with her boyfriend.

Herrera spent a day in jail, but the criminal charges were dismissed.

She sued O'Brien, the Albuquerque Police Department and the city, claiming they violated her Fourth Amendment rights by arresting her without probable cause.

The district court initially agreed, but later reconsidered in light of the city's claim that O'Brien was entitled to qualified immunity in such a "close case."

The Denver-based federal appeals court agreed, saying a reasonable officer could have viewed the situation as dangerous for a child.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.