The Robing Room

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Comment #: 21512
Rating:Not Rated
Comments:
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In Estate of Larsen v. Murr, 511 F.3d 1255 (10th Cir. 2008), the Tenth Circuit stated:

"In assessing the degree of threat facing officers, then, we consider a number of non-exclusive factors. These include (1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect. See, e.g., Walker v. City of Orem, 451 F.3d 1139, 1159 (10th Cir.2006); Jiron, 392 F.3d at 414-15; Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir.1989)."

There were two eyewitnesses to the killing of Lance Hummell, plus other significant facts that showed that the City failed to meet any of the 4 factors described above. According to witnesses:

1) Lance was given no chance drop the sword
2) No hostile motion was made with the weapon – the sword was at Lance’s side, not moving
3) There was at least 35 feet separating the cops from Lance
4) Since Lance was not moving forward, there was no hostile intention

A federal judge has the power to do incredible good or inconceivable harm. As responsible citizens in this city and in this nation, we must hold him accountable to the highest standards of justice, integrity, and fair-mindedness. This requires the judge to isolate himself from personal biases, historical relationships, and external influences, and excuse himself from the case if that is not possible.

For this trial, the court had a law-and-order judge with a long history of close relationships with police. Additionally, he is a citizen of the very city that was being sued. Both of these associations predisposed the judge to harbor discriminatory biases favoring the city and the police - meaning that the deck was stacked against us from the beginning. In studying the known evidence, the trial transcripts, and the decision documents, I am convinced that Judge Wormuth had his mind made up long before he ever set foot into the courtroom.

The court did not consider a single piece of the evidence that we offered, while whole-heartedly and blindly accepting everything that the defense put out there. For example, the bullet hole in the back window of Lance’s car proved that the cops were exactly where the eyewitness said they were –- yet Judge Wormuth completely ignored that incriminating piece of evidence. Additionally, the fact that he threw out not one, but two, eyewitness accounts because they did not align with the cops' stories shows a deep-rooted bias in favor of the police.

Reading his decision, one gets the feeling that the judge believes that he was actually at the scene, saw everything, and could even read the minds of the eyewitnesses and conclude that they were not credible.

An extremely aggressive officer with a long history of beating up on the citizens of Las Cruces -- 25 citizen complaints -- got away with it yet again because the presiding judge, though intelligent and well-educated, lacked the most critical character trait that a judge can have: integrity. I am not giving this judge an "F" because he ruled against us, but because he was unduly influenced by his firmly held personal prejudices, long relational history with the police, and an arbitrary refusal to consider any and all critical evidence.

In summary, while there were almost two dozen instances of seriously prejudiced conclusions by this judge, two stand out as egregiously flagrant violations of judicial integrity:

1. Judge Wormuth completely discounted the testimony of not one, but two eyewitnesses –- neither of whom contradicted each other on any item in their testimonies. Given the locations of the eyewitnesses and the fact they had no reason whatsoever to fabricate testimony, his actions are reprehensible. By eliminating their testimony, Judge Wormuth was then left, of course, to consider the officers' statements as the only source of information.

2. He completely ignored the bullet hole in the car that proved that the police officer could not possibly be anywhere close to where he said he was. This is more than reprehensible on Judge Wormuth’s part -- and strongly indicates a deliberate attempt to ignore the most critical evidence in order to render a verdict that was presupposed.

Four witnesses came forward: three who saw everything, and one who heard the shout to drop the sword and the shots fired only a second later. And we heard from a police informant, that Camp turned to Rivera after Rivera was done shooting and said: “What the hell did you just do?” So we knew, from the beginning, what had happened. The question for us was, in going to trial, would we get a judge who would look at all of the evidence fairly, and logically evaluate all of the testimony? Without a video capturing the events, could he come to rational conclusions based on the known facts? Or was he coming to this trial with a decision already predetermined, subverting testimony with his own predilections, and in effect saying: “I know what the witnesses said they saw, but I know what they really saw.” Unfortunately, we got the latter.

Judge Wormuth’s eleven-year relationship with the cops cannot be discounted. Given his profound bias in favor of the police, and his residency in the very city being sued, he should have excused himself from this case. Because he did not, he not only did much harm to Lance’s son and his family, he exonerated a city’s police department that has had a long history of out-of-control abuse of its citizens (see the Uchida Report). And in the end, the worst thing is that my children know that cops can murder someone and get away with it, because a judge lacks the character to pursue righteousness instead of politics.

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