Tenth Circuit Affirms that BCSO Overstepped the Constitution
FOR IMMEDIATE RELEASE October 15, 2009
CONTACT: Micah McCoy, (505) 266-5915 Ext. 1003 or [email protected]
ALBUQUERQUE, NM — The ACLU of New Mexico (ACLU-NM) settled a major lawsuit today against the Bernalillo County Sheriff’s Office (BCSO) on behalf of a family who was subjected to a police search of its home solely because plaintiffs were in-laws of suspected cop-killer Michael Astorga. This follows a landmark ruling on the case by the Tenth Circuit Court of Appeals which affirms that familial association with a suspected criminal is, alone, insufficient to establish “probable cause” for obtaining search warrants. This decision and the subsequent settlement set a clear limit to ensure that law enforcement officials do not overstep the bounds of the constitution in their pursuit of justice.
The Tenth Circuit included this statement in their decision: “Although we are sympathetic to the urgency of the officers’ search for Astorga, we conclude that these actions violated the Fourth Amendment. Adhering to established Supreme Court precedent and the unanimous case law of this and other courts, we hold that a familial relationship is insufficiently particularized to justify invading an individual’s reasonable expectation of privacy.”
The controversy surrounding this issue erupted in March of 2006 as law enforcement officials began a massive manhunt for Michael Astorga, who was suspected of shooting and killing Sheriff’s Deputy James McGrane, Jr. during a routine traffic stop. Astorga’s father-in-law, Rick Poolaw and his daughter, Chara Poolaw immediately began helping law enforcement efforts to apprehend Astorga after BCSO notified them he was a murder suspect. At the time, Astorga was married to another daughter of Rick and Cindy Poolaw.  Fearing for their daughter’s safety, the Poolaws offered up information that they thought might lead the police to Astorga. However, despite their unwavering cooperation and Rick Poolaw’s honorable 25 year service record as a State Police Officer, BCSO officers obtained a search warrant for the Poolaw residence based solely upon the fact that the Poolaw daughter, then Astorga’s wife, was known to stay at her parents’ house from time to time.
On the evening of March 24th, 2006, officers surrounded the Poolaw residence with guns drawn and ordered Rick, Cindy, and other family members to exit their house. After handcuffing each of them, the officers proceeded to search the Poolaw property and residences. Officers also confiscated several items belonging to the family. Four days later, BCSO officers seized Chara outside of her workplace in front of her colleagues and clients and held her at gunpoint while they searched her car. Despite her cooperation with BCSO, the officers performed this search without a warrant and only on the grounds that she was an in-law of Astorga.
“We and the Poolaws have always been sympathetic to BCSO officers for the death of one of their own,” said ACLU-NM Co-Legal Director Jane Gagne. “We also have high regard for the great risks that law enforcement officers face every day in the line of duty. But our sympathy and our regard do not diminish our determination and our duty to honor and protect the Constitution. Rick, Cindy, and Chara Poolaw were deeply hurt by BCSO's actions against them, especially since Rick Poolaw is a respected retired State Police Officer, and they had helped BCSO in the search for Astorga. The Poolaws are gratified that the New Mexico Federal District Court and the Tenth Circuit Court of Appeals have confirmed that the Fourth Amendment retains its vitality even in times of tragedy.”
ACLU-NM Managing Attorney George Bach, along with Co-Legal Directors Jane Gagne and Phil Davis, filed the suit on behalf of the plaintiffs.

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The mission of the American Civil Liberties Union (ACLU) of New Mexico is to maintain and advance the cause of civil liberties within the state of New Mexico, with particular emphasis on the freedom of religion, speech, press, association, and assemblage, and the right to vote, due process of law and equal protection of law, and to take any legitimate action in the furtherance and defense of such purposes. These objectives shall be sought wholly without political partisanship.
Related Documents:

Press Release (9-29-2006)
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10th Circuit Ruling

FOR IMMEDIATE RELEASE September 9, 2009
CONTACT: Micah McCoy, (505) 266-5915 EXT. 1003 or [email protected]
ALBUQUERQUE, NM – Yesterday, the American Civil Liberties Union of New Mexico (ACLU-NM) filed suit against Albuquerque Public Schools (APS) for suspending African-American brothers Dana and Donovan Delouth under false allegations that the brothers engaged in “gang related activity” when they flashed a “peace” sign and a “hook-em-horns” sign to their friends.  The suit demands immediate reinstatement of the brothers to their studies and charges APS with violations of free speech and the due process right to public education. Neither brother has ever been a member of a gang.
"If APS can suspend students for doing something as universally-accepted as showing a peace sign, then it can get rid of students at will, with no real evidence that the students represent a threat, " said ACLU-NM Executive Director Peter Simonson. “Anti-gang policies might be good for school security, but not when they are enforced so arbitrarily that they deny innocent kids their right to education.”
On the evening of Friday, August 28, an APS police officer and a Campus Service Aide witnessed the Delouth brothers making the signs in question at a high school football game at Milne Stadium.  The following Monday, the brothers were called into the security office of Valley High School and accused of “throwing” gang signs.  The brothers tried to explain that their hand signs were innocent greetings, but an assistant principal at Valley High School immediately suspended both and is proposing additional long-term suspension.  Although the Delouth brothers were not the only students who showed the hand signs, they—the sole African-Americans—were the only students disciplined.  Two days later, after the brothers spoke about their suspension to the press, APS brought additional disciplinary charges against Dana. The brothers deny all of the charges, and nothing of the circumstances meet APS’s definitions for those charges.
“APS isn’t making the schools any safer by suspending Dana and Donovan,” said ACLU-NM Co-Legal Director Jane Gagne. “All they are accomplishing is causing two students to be stigmatized by false allegations of gang activity, loss of valuable educational opportunities, and suppression of fundamental constitutional rights. We need to get these kids back to school as soon as possible.”

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Related Documents:

Delouth Complaint

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Temporary Restraining Order

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TRO Exhibit 1

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TRO Exhibit 2

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TRO Exhibit 3

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TRO Exhibit 4

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TRO Exhibit 5

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TRO Exhibit 6

FOR IMMEDIATE RELEASE September 4, 2009
CONTACT: Micah McCoy, (505) 266-5915 X1003 [email protected]
ALBUQUERQUE— In a settlement reached today with the ACLU of New Mexico and the Youth Law Center (San Francisco, CA), the State of New Mexico Children, Youth, and Family Department (CYFD) agreed to make substantial improvements to essential health and safety services for youth in their custody.  Today’s settlement stems from a lawsuit that the ACLU filed in 2007 to enforce the terms of a 2006 contract between the two entities which resulted in the closure of Springer boy’s school and set forth promises to improve security, behavioral health screening and treatment, and quality assurance systems.
“This agreement demonstrates the commitment of CYFD Secretary Dorian Dodson to providing improved health and safety to youth in their custody,” said ACLU Executive Director Peter Simonson. “Rather than fighting it out in court, we sat down to agree on what needed to improve and how it was going to be accomplished. We designed a flexible, cost-effective agreement based on best practices in the field.”
The agreement includes an appendix entitled, “The Way Forward,” which outlines detailed improvements that CYFD will make in areas of accountability, quality assurance, safety and protection of youth, health services, and educational programming. Major points of the agreement include commitments by CYFD to:

• Invite nationally-recognized juvenile justice expert Paul DeMuro to take part in a Technical Advisory Committee to advise and work with CYFD to implement the agreement;
• Re-focus CYFD’s Office of Quality Assurance on continuous quality improvement processes, including regular and detailed reviews of juvenile justice facilities;
• Implement an effective system for abuse investigation and filing of grievances, and ensure timely and appropriate corrective action is taken in response to substantiated grievances.  This includes the creation of new grievance officer positions in YDDC, Camino Nuevo, and J. Paul Taylor Center.
• Reduce living units to twelve youths or less, providing safer places for youth to live;
• End abusive and coercive lockdown procedures and revise policies on physical restraints;
• Revise policies for managing older youth (more than 60% of youth in CYFD custody are older than eighteen);
• Implement the Missouri model of youth detention and rehabilitation;
• Establish transition care for youth that will begin at the individual’s commitment and continue through his or her reintegration into society;

The ACLU will maintain a continuing monitoring presence in CYFD facilities through December 31, 2010 to ensure goals are met.
Simonson said, “CYFD agrees with the ACLU that youth detention centers should not be warehouses for New Mexico’s future adult criminals. These facilities must provide youth with a safe environment, adequate behavioral health services and, above all, a genuine opportunity to rehabilitate themselves.”

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Related Documents:

AGREEMENT - THE WAY FORWARD

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2009 AGREEMENT BETWEEN CYFD AND THE ACLU