An Ignacio man who was shot by an officer with the Southern Ute Police Department had his lawsuit tossed last week by the U.S. Court of Appeals.
According to court filings, Anthony Martinez invited friends over to his father’s Ignacio home on Dec. 4, 2012, when at some point in the evening, a fight broke out and spilled out onto the front yard.
The reason for the fight, court documents say, is that one male guest hit a woman.
Most of the people at the party left after the fight erupted. Around 1 a.m., however, some people involved in the fight returned, court records show. Martinez then allegedly punched one of them and the group soon left.
The group then alerted law enforcement. SUPD officers took statements and took two people from the group to a hospital for treatment.
SUPD officers then went to Martinez’s home with their lights on, announced themselves as police and knocked on the door. No one answered, though people were seen inside, court filings show.
Later in the evening, SUPD officers learned that the woman who was reportedly assaulted in the fight possibly returned to the home. Around 3:30 a.m., three officers – Cheryl Herrera, Matthew Mitchell and Patrick Backer – arrived at the scene.
Herrera, court records show, decided to take a “black out” approach to the home, a tactic where police keep quiet, wear dark clothing and park out of sight – a tactic used to protect officers as well as potential domestic violence victims from attacks.
Martinez, believing an officer’s vehicle belonged to the group previously involved in the fight, “got a baseball bat from inside and hid behind a bush near where his driveway met the road,” court documents show.
As officers approached, not using flashlights and wearing black police jackets with only the SUPD logo on the shoulders, they heard a rustling in a bush and shined a flashlight.
“Mr. Martinez jumped out and ran toward them, raised the bat above his head and shouted,” according to court records. “The officers drew their guns, and Officer Backer shot Mr. Martinez.”
After the incident, Martinez, who survived the shooting, filed a lawsuit claiming police used excessive force and were negligent in their actions.
In his original complaint filed Sept. 11, 2015, Martinez said officers never identified themselves as police. He said he retreated after an initial advance toward officers and was shot once in the back.
A call to Martinez’s lawyer, Raymond Bryant with the Civil Rights Litigation Group, was not immediately returned. Bryant wrote in the lawsuit that Martinez was found not guilty of alleged crimes tied to the incident at a May 2014 jury trial.
According to The Durango Herald archives, prosecutors charged Martinez with felony menacing for charging police officers. After two trials, one that ended in a hung jury, Martinez was acquitted of the charges.
Attempts to reach Martinez were also unsuccessful Monday morning.
Ultimately, Martinez and his attorneys were able to pursue only the negligence claim. After a six-day bench trial in early 2019, the court ruled in favor of the U.S. government, representing the federally employed SUPD officers.
Martinez appealed the decision in spring 2019, which was dismissed Friday by the U.S. Court of Appeal’s 10th Circuit.
In his ruling, Circuit Judge Scott M. Matheson Jr. wrote that officers were wearing standard-issued jackets and that the “black out” approach is a routine tactic used by law enforcement.
“Although the officers did not identify themselves as police as they approached the property, they did not ‘initiate contact with Mr. Martinez,’” Matheson wrote. “He did when he ran out from behind a bush waving a bat and yelling.”
Matheson also noted that officers, in sworn testimony, said they intended to knock on the door and announce themselves as law enforcement.
“Mr. Martinez prevented them from reaching the door by charging at them with a bat,” the judge wrote.
Requests for comment from Lindsay Box, spokeswoman for the Southern Ute Indian Tribe, were not immediately returned Monday morning.
jromeo@durangoherald.com
