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Man who tusseled with police over use of 'B' word settles lawsuit against city for $255,000

By Jose L. Medina/Sun-News reporter

Article Launched: 10/04/2008 12:00:00 AM MDT

LAS CRUCES — A $255,000 settlement has been reached in the 2004 case of a Las Cruces man arrested after he used the word "*****" when another driver took his parking space at Target.

James York has agreed to a settle his federal lawsuit against the city of Las Cruces and three of its police officers, city attorney Fermin Rubio said.

The settlement was approved by the City Council in a closed session Sept. 8. There was no admission of fault on the part of the city, which will pay York and his wife from its liability fund, Rubio said.

"The dispute between the Yorks and the city of Las Cruces has been resolved to the satisfaction of both parties, and that's all that I would be able to comment on the matter," Rubio said.

Police spokesman Dan Trujillo said the department had no comment and declined to answer questions about whether the incident led to any changes in training, if the officers involved were disciplined as a result or even if the officers are still with the force.

William Walker, the Yorks' Las Cruces attorney, declined comment Friday citing a confidentiality clause included in the settlement terms.

York was arrested Aug. 14, 2004, and was charged with misdemeanor counts of disorderly conduct and resisting or obstructing an officer, charges later dropped in municipal court.

York filed a civil suit in U.S. District Court in Las Cruces, naming the city and officers Chris Gallegos, Frank Lucero and Greg Martinez as defendants.

The suit claimed that the officers violated York's First, Fourth and 14th Amendment rights and that excessive force was used in his arrest, causing $80,000 in medical bills.

According to court documents, York and his wife were in their car, looking for a parking spot in the Target lot on East Lohman Avenue, when they spotted a vehicle pulling out of a parking space. Before the Yorks could pull into the space, an unidentified woman whipped into the spot and parked.

Gallegos, who happened to be on duty and in the parking lot, overheard York, whose car windows were down, say either "*****" or "what a *****," the documents state.

Gallegos said the comment was heard by him as well as man and a 5-year-old child, who were nearby.

Once out of his car, York was confronted by Gallegos, who told him he could be arrested for causing a disturbance. An argument between the two ensued. Gallegos called for backup, and Lucero and Martinez responded.

According to the documents, Gallegos and Lucero agreed there was probable cause to arrest York because "he shouted a profanity in a public area, causing at least three people to react."

Gallegos — contrary to his training, the documents state — "decided to use his own arrest technique in which he grabs and handcuffs the suspect before explaining that he is under arrest."

York reflexively drew back his arm, which Gallegos interpreted as resisting arrest. Gallegos executed an arm-bar takedown and York struck his head and shoulder on the pavement.

Martinez then placed a stun gun on York's neck and threatened to shock him if he did not untuck his arms from underneath his body, the documents state.

The city had asked that the suit be dismissed based on qualified immunity, which shields certain public officials from lawsuits as long as their actions do not violate constitutional rights.

A federal appeals court denied the request, ruling that there was no evidence that the word, though offensive, was directed at anyone in particular and that York was not threatening or trying to instigate a fight with the comment.

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