NMCA: Albuquerque police are immune from claims that they botched an investigation of the death of prominent lawyer Mary Han

Mary Han was a prominent civil rights lawyer in Albuquerque whose untimely death has attracted both attention and litigation. In this lawsuit, Ms. Han’s daughter, and the personal representative of her estate, sued the City of Albuquerque and some of its police officials. They claimed that the defendants’ alleged failure to properly secure the scene of her death (she was found in a car in her garage) made it impossible to truly determine what (or possibly who) caused her death. They also claimed that this failure allowed some unknown person to make off with some valuable rings that Ms. Han often wore.

The district court dismissed the lawsuit on the ground that these claims did not fall within the Tort Claims Act’s waiver of immunity for “property damage” resulting from a number of listed torts. See NMSA 1978, Sec. 41-4-12. The district court concluded that “property damage” required physical damage to property, and neither the alleged spoliation of evidence nor the disappearance of Ms. Han’s rings qualified.

In Han-Noggle v. City of Albuquerque, a non-precedential opinion (written by Chief Judge Monica Zamora), the Court of Appeals affirmed the dismissal. But instead of relying on the district court’s “physical damage” analysis, the Court relied on the complaint’s failure to allege sufficient facts explaining what claim they would have been able to pursue had the investigation been conducted properly, and failure to allege any facts suggesting that the police investigation was responsible for the rings’ disappearance.

It would not surprise me if plaintiffs were to seek review in the New Mexico Supreme Court.

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