Tenth Circuit: No Immunity For Cops Who Protected An Abusive Fellow Officer Right Up Until He Murdered His Ex-Wife

from the you-can't-just-protect-and-serve-some-people dept

Law enforcement officers have no legal obligation to protect and serve. The words look nice on badges and insignias, but courts have said this is only a nicety, not a guarantee.

But that doesn't mean officers can abandon any pretense of protection and service. There are some limits enforced by precedent. Neglecting to take complaints and threats seriously can have consequences. The difference is the definition. There's no due process right to protection and service. But the government does have an obligation under the Fourteenth Amendment to ensure no citizen receives less protection and service than others.

That fine line was crossed in this tragic case handled by the Tenth Circuit Appeals Court. And it all could have been avoided if the officers involved didn't decide to give one of their own some unequal protection. The decision [PDF] opens by briefly alluding to this fine line.

This case arose after a Silver City police officer murdered his ex-girlfriend, Nikki Bascom, and then committed suicide. Her Estate sued, alleging the Silver City police did not adequately respond to Ms. Bascom’s domestic violence complaints because the shooter, Marcello Contreras, was a fellow police officer. The Estate brought various civil rights claims under 42 U.S.C. § 1983, including a claim that Silver City officers Ed Reynolds and Ricky Villalobos violated Ms. Bascom’s equal protection rights by providing her less police protection than other similarly situated domestic violence victims.

The lower court denied qualified immunity to the officers. They appealed. And they lose again.

The circumstances of the case would have been awful enough without the added ugliness of police officers giving an abusive fellow officer a pass, thereby placing his family in the direct line of the harms that followed. And this could have perhaps been avoided if the Silver City police department hadn't been so keen on adding a bad apple to its barrel.

In 1999, Marcello Contreras’s then-wife, Nikki Bascom, reported to the Silver City Police Department (SCPD) that Contreras had threatened to shoot her at gunpoint because he believed she was having an affair. Contreras admitted pushing his wife but denied threatening her. SCPD charged him with battery on a household member. Nevertheless, in 2001, SCPD hired him as a police officer.

Contreras spent the next fifteen years as an SCPD officer. He also spent the next fifteen years in an on-again, off-again relationship with Bascom. The relationship was apparently off when Contreras showed up at her house, drunk, potentially suicidal, and complaining about a suspected affair. (The court notes the two were not dating at this point.) Three officers responded to Ms. Bascom's teen son's 911 call about the argument and Contreras' threat to shoot himself.

Officers arrived at the scene and then apparently decided to bend/break all the rules to allow Contreras a semi-graceful exit.

When the officers arrived on the scene, Ms. Bascom handed Sergeant Arredondo a gun she had taken from Contreras and said “[Contreras] has gone crazy and wants to kill himself.” Ms. Bascom informed Sergeant Arredondo that Contreras had been drinking heavily for two days. Sergeant Arredondo observed that Contreras had alcohol on his breath and had bloodshot, watery eyes. Despite Sergeant Arredondo being “one of the number one DWI go-getters that makes most of [SCPD’s] DWI arrests,” he allowed Contreras—who had clearly consumed alcohol recently—to drive his truck into the driveway.

The officers also acted contrary to SCPD training and policy. Although SCPD officers are trained to interview the 911 caller in a domestic incident, the officers on the scene did not interview Ms. Bascom’s son. Moreover, no officer completed a verbal tracking form, which department policy requires so that officers are aware of volatile situations.

Non-law enforcement employees also assisted with the whitewashing of this domestic incident.

Finally, dispatch initially classified the call as a “domestic disturbance.” Minutes later, the call type was changed to a “welfare check” at the request of one of the responding officers. The dispatcher explained that the call type was changed to protect Contreras. This change made it more difficult for agencies to detect a history of domestic violence at the residence.

The buck got passed. And it never stopped.

Sergeant Arredondo reported the domestic disturbance incident to Chief Reynolds. Chief Reynolds met with Contreras and suggested he take advantage of the employee assistance program. But Contreras was not charged with any offenses—domestic violence, refusal to obey an officer, or DWI—as a result of the incident.

Two weeks later, Ms. Bascom reported Contreras was following her around in his car and had harassed one of her coworkers. The chief basically told Contreras to "knock it off" but did not document the allegation or deploy any form of discipline. Three days after this report, Chief Reynolds promoted Contreras to acting Captain and gave him a raise.

A month later, while on duty, Contreras used his SCPD car to force Bascom off the road. When she tried to call 911, he took her phone. He then went to the coworker's house and threatened him. This incident was also reported to Chief Reynolds. Finally, the chief did something. He placed Contreras on administrative leave and took his weapon. But then he let Contreras go without documenting the allegation or filing a criminal complaint, even though he admitted in court he could have and that Contreras' actions were criminal.

Contreras left the police station and began following Bascom again. Another 911 call was made and the Grant County Sheriff's Department responded. Chief Reynolds spoke to one of the sheriff's officers but did not detail the events of the past month. Bascom then left her house and headed towards a domestic violence shelter. She called 911 again because Contreras was still following her. Contreras, in turn, was followed by a sheriff's officer, but the officer didn't feel he had enough evidence to perform a stop. He said this in a call to Chief Reynolds while following Contreras. Chief Reynolds decided there was no need to inform the officer that Contreras had forced her off the road earlier in the day and stolen her cell phone.

Here's how it all ended:

Ms. Bascom left the domestic violence shelter and drove to her friend’s house. As he had done many times that day, Contreras followed her there. At 4:20 p.m., Contreras shot and killed Ms. Bascom in front of her friend’s house and then turned the gun on himself. Afterwards, Sergeant Yost told dispatch that he should have stopped Contreras and that he could have saved Ms. Bascom’s life. The dispatcher responded, “[W]e have been dealing with this off and on for over a month now, and it’s been swept under the rug.”

The court notes the SCPD's handling of Contreras was completely different than the way it handled situations like these that did not involve SCPD officers.

In 2016, the year Ms. Bascom was murdered, 149 domestic violence calls resulted in 140 arrests by SCPD officers—an arrest rate of 94 percent. In its briefing before the district court, the Estate identified eight domestic violence complaints where the assailant either (1) pulled a victim over by swerving in front of the victim’s car or (2) pulled a cell phone out of the victim’s hand. In all of these cases, SCPD officers either arrested the assailant at the scene, signed a criminal complaint, or sought an arrest warrant. SCPD officers also arrested domestic violence offenders in relatively minor disputes and even arrested and charged domestic violence suspects over victims’ objections, as mandated by SCPD policy.

This discrepancy is a violation of rights.

We find that the facts found by the district court support an equal protection claim. Although Ms. Bascom was similarly situated to other domestic violence victims, she was treated differently because her assailant was a police officer with whom she had been in a domestic relationship. When other domestic violence victims reported domestic violence to SCPD, the non-police officer assailant was arrested 94 percent of the time. When Ms. Bascom and her son repeatedly reported Contreras’s domestic violence to SCPD, Contreras was never arrested. Instead, the Officers brushed SCPD domestic violence policy aside to protect their fellow police officer. A reasonable jury could conclude these facts demonstrate disparate treatment of domestic violence victims whose assailants were not police officers and whose assailants were police officers with whom they had been in a domestic relationship.

Put a bit more starkly and accurately:

SCPD has two domestic violence policies: one for victims whose assailants are SCPD officers, and one for everyone else.

This isn't the court making a wry observation using a shopworn idiom. It's an actual fact. Police officers suspected of domestic violence are referred to an outside agency. They are not arrested or detained while this is handled by outside investigators. The outside agency only receives limited information: name of the complainant and the allegations. No statements, documentation, or any other evidence collected prior to this referral is handed over. Non-officers accused of domestic violence are almost always arrested immediately. Cops accused of domestic violence are free to go while outside investigators play catch up with limited info and minimal cooperation.

This unequal protection is unconstitutional. And this is a clearly established violation of rights these officers should have been aware of prior to their sheltering of the abuser in their midst.

Here we have two factually similar cases, Watson and Price-Cornelison, which clearly established at the time of the Officers’ conduct that providing less protection to domestic violence victims, or certain sub-classes of domestic violence victims, violates the Equal Protection Clause. These cases would put a reasonable officer on notice that it is unlawful to provide less police protection to victims of domestic violence whose assailants are police officers with whom they had been in a domestic relationship than is provided to victims without police assailants.

No qualified immunity for the officers who protected one of their own right up until he took two lives -- officers whose actions were so blatantly unequal the dispatcher admitted to another law enforcement agency the PD had been sweeping Contreras' violence and severe misconduct "under the rug." And the person holding the biggest broom -- the chief -- did nothing for a month. Then he followed it up by doing too little far too late.

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Filed Under: 10th circuit, domestic violence, marcello contreras, nikki bascom, police, qualified immunity, silver city


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  • icon
    That One Guy (profile), 15 Jul 2021 @ 6:32pm

    When you screw up so badly even the courts bring the hammer down

    Possibly the most messed up thing is that even after everything those in the police department are almost certainly still wondering why they're being sued and what they possibly did wrong that might justify a lawsuit.

    They knowingly hired someone who had engaged in domestic abuse(which says a lot about what they look for in an officer), looked the other way while the scumbag stalked and harassed his on and off again girlfriend, promoted him in the middle of this whole mess(which again sends a horrifying message of what that department considers proper behavior for officers) and basically treated stalking, harassment, heavy drinking and suicidal tendencies as no big deal right until it was too late and there were two bodies on the ground.

    Every last one of those involved deserves to be stripped of their position and hit with the harshest penalties possible under the law, they were so concerned about keeping one of their own safe from any consequences for his actions that him and an innocent person are dead because of it and as such they are clearly unfit for any job that involves public interaction or any significant decision making skills as they have shown themselves to be beyond abysmal at both.

    reply to this | link to this | view in chronology ]

    • identicon
      Tirear, 16 Jul 2021 @ 10:47am

      Re: When you screw up so badly even the courts bring the hammer

      Possibly the most messed up thing is that even after everything those in the police department are almost certainly still wondering why they're being sued and what they possibly did wrong that might justify a lawsuit.

      Isn't it obvious? What they did wrong was treating the other domestic violence reports seriously. If only they had always been this negligent the court wouldn't be coming after them for "unequal treatment".

      /Sarcasm

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jul 2021 @ 3:57pm

        Re: Re: When you screw up so badly even the courts bring the ham

        Some see this comment as an useful commentary.

        Others see this as a successful "cover yourself blueprint" that should be implemented ASAP.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 15 Jul 2021 @ 8:04pm

    Who are you and what have you done with my reality?

    Wait, officers covering for another officer might be held accountable? Hell has definitely frozen over.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jul 2021 @ 8:27pm

      Re: Who are you and what have you done with my reality?

      Only when it became indefensible, and even then, the officer in question enjoyed fifteen years of thoroughly unfettered support to act like an asshole. His enablers were also given five years to secure their privilege.

      That they failed in their appeals is pretty amazing, but then when you consider that they got away with it for 1.5 decades at minimum, this is the equivalent of a group of kids bullying another victim from kindergarten to college, before someone finally decides to take their toys away. This is not the system working as "intended". This is the system finally deciding that it's become inconvenient to shield a small subset of abusers.

      reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 15 Jul 2021 @ 9:10pm

    What is this “domestic disturbance” that they label a “welfare check”, and at which bank can I cash one?

    reply to this | link to this | view in chronology ]

  • icon
    jonr (profile), 15 Jul 2021 @ 9:10pm

    Chief resigned

    I got curious to see if there were any consequences for the chief in this case, and discovered something interesting: He retired very suddenly in May 2018, appearing unannounced at a City Council meeting and giving only one week's notice. That... is not how one normally retires.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 15 Jul 2021 @ 9:34pm

      Re: Chief resigned

      Based upon your later comments I suspect that he saw the hammer coming down or figured it was about to and was desperately trying to distance himself from it. With this ruling just this year however it seems like he might not have escaped as thoroughly as he wanted and good riddance, hopefully this lawsuit destroys him now that he's been denied immunity given what he apparently looked the other way for.

      reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 16 Jul 2021 @ 10:01am

      Re: Chief resigned

      Perhaps trying to protect his pension.

      reply to this | link to this | view in chronology ]

  • icon
    jonr (profile), 15 Jul 2021 @ 9:16pm

    And Tim didn't even mention the child porn!

    From the decision:

    In 2003, SCPD investigated allegations that Contreras had sexually abused a child, but SCPD ultimately concluded the allegations were unsubstantiated.
    The documentation of the investigation has since disappeared. After Ms. Bascom’s murder, SCPD came to possess a memory card that contained apparent child pornography, including images of Contreras, in uniform, exposing himself to young girls.

    reply to this | link to this | view in chronology ]

  • icon
    jonr (profile), 15 Jul 2021 @ 9:22pm

    It just keeps getting worse...

    And after Contreras took the cell phone, he broke into her house (because she had changed the locks) which is where the Chief relieved him of one weapon -- but did not force him to leave.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Lostinlodos (profile), 15 Jul 2021 @ 11:03pm

    Content?

    What does this have to do with technology?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jul 2021 @ 11:38pm

      Re: Content?

      What does Fox news have to do with foxes?

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 16 Jul 2021 @ 12:59am

      Re: Content?

      Techdirt regularly comment on non-tech issues, especially those relating to law enforcement.

      "Techdirt blog relies on a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies' ability to innovate and grow. As the impact of technological innovation on society, civil liberties and consumer rights has grown, Techdirt’s coverage has expanded to include these critical topics"

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jul 2021 @ 1:54pm

      Re: Content?

      What does this have to do with technology?

      You want to know a secret?

      You didn't have to read the article if you didn't want to. Nobody forced you to read it either.

      Just thought you would like to know something that most all of us already knew.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 19 Jul 2021 @ 6:36am

      Re: Content?

      "What does this have to do with technology?"

      Directly? Not that much, perhaps.

      To everyone reading this site who has a background in administrating systems, networks and databases? This is a clear-cut example of a process gone wrong. A system badly designed delivering abysmal results, in need of fixing.

      It's a funny correlation that those invested in technology tend to have a fixation on making any process work. Whether that is because people eager to fix broken systems in general end up good techies or good techies develop that mindset after a while is less clear. What is clear is that it's a solid enough correlation that you find it mentioned on 30 year old bulletin boards.

      reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 16 Jul 2021 @ 12:23am

    Optimists keep forgetting the whole phrase: "To protect and serve ourselves"

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 16 Jul 2021 @ 3:49am

    I'm amazed it was actually the lower court that denied QI in the first place. Usually it is the appeals courts that have to do this.

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 16 Jul 2021 @ 5:15am

    Maybe don’t defund the police, but definitely defund all those motherfuckers.

    reply to this | link to this | view in chronology ]

  • icon
    sorrykb (profile), 16 Jul 2021 @ 9:07am

    Yet people still ask victims…

    “Why didn’t you leave him?”
    “Why didn’t you get a restraining order?”
    “Why didn’t you call the cops?”

    .

    reply to this | link to this | view in chronology ]

  • identicon
    Daniel Hammhort, 17 Jul 2021 @ 9:05pm

    No wonder my grandmother always told her (white!) children and grandchildren: be friends with the police but stay far away from cops! It always seemed funny as a kid but when you grow older you start to see the wisdom in her.

    reply to this | link to this | view in chronology ]


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