Court sides with officer in minivan shooting

Judges say suit should have been thrown out from the beginning

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A federal appeals court has sided with a former New Mexico State Police officer accused of violating the rights of a woman and her five children when he opened fire on their minivan as they fled a traffic stop near Taos.

The episode in late 2013 ignited outrage and drew national media attention to New Mexico amid renewed controversy over police abuse around the country. The incident also led state police to initially fire the officer, Elias Montoya, who then appealed the firing, accepted a settlement and got a job at the Taos County Sheriff’s Office.

The decision Wednesday by the 10th Circuit Court of Appeals in Denver hands a victory to police in a case that raised questions about when and how law enforcement can be sued for using excessive force. In its ruling, a panel of three judges said a lower court should have thrown out the federal lawsuit accusing Montoya of violating the constitutional rights of the woman and her family by firing at their vehicle.

The case, which became a yearslong ordeal, began when state police Officer Tony DeTavis stopped Oriana Farrell for speeding on N.M. 518 near Taos in October 2013.

DeTavis had said Farrell was traveling 71 miles per our in an area with a speed limit of 55 mph.

Farrell, who was from Tennessee, had been driving west on a road trip with her five children, ranging in age from 6 to 16.

DeTavis gave Farrell the option of paying $126 within 30 days or seeing a judge in Taos within 30 days. But according to the court’s decision, Farrell said she was uncertain what to do because she was not sure where her family would be in a month and worried they may not be able to return to Taos.

At one point, DeTavis asked her to turn off the engine of her minivan, according to the court. He radioed to his dispatcher that Farrell was refusing to make a decision. And as DeTavis walked back to his cruiser, Farrell drove away, proceeding down the highway at what the court described as a normal speed.

DeTavis caught up with Farrell, and she pulled over again. According to police video of the incident, the officer then tried to drag her from the vehicle.

A chaotic scene unfolded, with one of Farrell’s children getting out of the vehicle and trying to stop the officer.

Two more patrolmen arrived, and DeTavis smashed the rear window on the minivan as Farrell pulled away.

Montoya stood in the middle of the road and took aim at her vehicle, firing three shots, none of which hit her vehicle, the court said. The officer said at the time that he was aiming at one of the tires on Farrell’s minivan.

Farrell and her children proceeded with police in pursuit. One of Farrell’s daughters called 911 during the chase, which reached speeds at times of more than 100 mph, according to reports.

The pursuit ended when Farrell pulled into the parking lot of a Taos hotel, where she surrendered and her children piled out of the vehicle at gunpoint.

Farrell, who is black, later said she fled because she feared for the safety of her children.

The episode riled Taos, with some decrying the shooting and others defending Montoya, a well-known local law enforcement officer.

Farrell went on to live in Santa Fe and took a plea deal to charges of fleeing an officer and child abuse. A judge sentenced her to probation and community service.

She later filed suit against the officers, accusing Montoya of violating her Fourth Amendment rights by using excessive force in shooting at the vehicle carrying her children. Cited in many cases of excessive force by police, the Fourth Amendment of the U.S. Constitution protects against “unreasonable searches and seizures.”

The officers had claimed what is known as qualified immunity, which shields public officials from lawsuits over reasonable actions undertaken in the course of their duties.

While a federal judge granted the other two officers qualified immunity, the judge decided Montoya could not be considered protected. A reasonable jury, the judge said, could find that a reasonable officer in Montoya’s position would have known that firing those three rounds toward the van violated the Fourth Amendment.

Montoya appealed the ruling, and the three-judge panel ruled Wednesday that the case against him should have been thrown out by the lower court.

The panel based its decision on its interpretation of the Fourth Amendment, determining that Farrell could not claim she was a victim of an “unreasonable seizure” because she had not been seized but instead fled law enforcement.

“As there was no seizure, there could be no unreasonable seizure, even if Montoya was using deadly force,” wrote Judge Harris Hartz, who was appointed by President George W. Bush. Judges Mary Beck Briscoe and Robert Bacharach, appointed by Presidents Bill Clinton and Barack Obama, respectively, joined in the decision.

Farrell’s lawyer, Kathryn Hardy, said they will ask the court to reconsider.

Mark Standridge, the attorney representing Montoya, did not respond to a voicemail message seeking comment.

Contact Andrew Oxford at 505-986-3093 or aoxford@sfnewmexican.com. Follow him on Twitter @andrewboxford.

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