Española could be facing another hefty lawsuit after an officer, newly hired from Los Alamos Police Department, unlawfully arrested a man who overdosed.
Officer Albert Rael submitted his paperwork on the arrest to the district attorney’s office six days after he unlawfully arrested Michael Salazar, 41.
Rael arrested Salazar, May 8, after the latter had been released from the hospital after being transported there by ambulance. Medics revived Salazar at his friend’s house after he overdosed on heroin. His friend gave him the opiate overdose-reversing drug Narcan and then called 911, Salazar said.
Salazar said he had just been released from the Santa Fe County jail, serving time for driving on a revoked license. By the time he got to Española, it was early in the morning. His friend pulled out some heroin and asked if Salazar wanted to try some.
According to the 2006 law, Sen. Richard Martinez, D-Rio Arriba, Los Alamos, Santa Fe and Sandoval counties sponsored, the Overdose Prevention Act, the first of its kind in the country, police “shall not” charge anyone with possession of a controlled substance if they are called to the site of an overdose.
The stated intention is to reduce the amount of overdose deaths by removing some of the fear of arrest by police.
It does not preclude police from arresting overdosers or the people who call reporting overdoses, for warrants, restraining order violations or on other, violent charges.
According to Rael’s report and his statement of probable cause in the arrest, he unlawfully arrested Salazar.
Salazar said he is meeting with an attorney Wednesday in Albuquerque, to go over a potential wrongful arrest lawsuit against the city.
Defense attorney Matthew Coyte said he has never had a client bring a case, where he had been illegally arrested for overdosing, but one could sue under state law for false arrest.
The top Española prosecutor, Ben Schrope, said he and other prosecutors in his office file a dismissal once they find someone has been illegally arrested, but often, officers do not get the paperwork to them in a timely fashion.
According to court documents, the District Attorney’s Office received Rael’s paperwork May 14, six days after he arrested Salazar.
“We saw a lot more of it three years ago,” Schrope said.
Schrope said the arrests are usually not made by the officers, but when they are, prosecutors attempt to notify the officer of the mistake.
Police Chief Richard Gallegos said the Department will not file an LEA-90, a request for the Law Enforcement Academy to look into discipline, because Rael acted in good faith.
“We just hired him,” Gallegos said. “He’s a good kid and we’re not here to chop any heads.”
Rael had been an officer in Los Alamos for five years before being hired by the Department.
Gallegos tried to deflect further questions.
“You judge it however you want, Wheeler,” Gallegos said, refering to the Rio Grande SUN reporter.
Gallegos said the unlawful arrests have been made by other agencies recently, and this is only one of many.
He said he may, or may not, talk to Officer Michelle Ortega, whom Salazar accused of doing nothing to stop an arrest she knew to be unlawful.
He said his lips are mostly sealed because everything is a personnel issue, but he would be happy to talk to the reporter about the “good” things the Department is doing.
If the Tierra Amarilla jail bills the city for Salazar’s time, it will come out to $2,808, according to figures released by Finance Director Joyce Sandoval.
According to personnel documents from Los Alamos, Rael started as an officer there in 2010, well after the Law Enforcement Academy began teaching its recruits when it is unlawful to arrest someone in the throes of an overdose.
The Academy began teaching about the Overdose Prevention Act in 2006, the same year it was enacted, Academy Director Jack Jones said.
Salazar said he woke up from the overdose, after being given Narcan, to the feeling of Rael feeling through his pockets. Medics took him to the hospital and once he was cleared, Rael loaded him into the back of his police car.
“He got some paperwork and took me to the Detention Center and that’s when he left,” Salazar said. “The detention officer put me back in the cage and he said, ‘He can’t arrest you on that stuff.’ I was just like, ‘OK, I guess I’m under arrest.’ Then I could hear (Officer Michelle Ortega) telling (Rael) basically, he was in the wrong.”
Ortega came to talk to Salazar, he said.
“She came in and said, ‘I hope you’re alright,’” he said. “She said, ‘I hope he treated you good.’”
Salazar alleged, even though Ortega allegedly knew the arrest Rael made was wrong, she did nothing about it.
Magistrate Judge Alexandra Naranjo said Rael brought Salazar to the court for arraignment. She set his bond at $6,000, with 20 percent to the court, $1,200, something Salazar could not post.
Salazar said the judge dismissed him out of hand.
“She’s all, ‘What you need is rehab, sir,’” he said. “(She said) ‘Get out of here!’ Clack. That was that. I was … it was a big old fiasco. I did 20 days basically on a 10-day ruling.”
Court rules state prosecutors must ask the court for an extension of time on the cases and if they don’t, the judges must release defendants after 10 days.
Naranjo did no such thing. Rather, 18 days after Salazar’s unlawful arrest, Magistrate Judge Joseph Madrid released him, on May 26.
Madrid said court staff brought Salazar’s continued detention, beyond the 10 days allowable, to his attention and filed the release order.
Madrid said he did not know about the Overdose Prevention Act, and if he did not know, there was no way Naranjo could know about it.