Santa Rosa News - March 21, 2003

IS THERE A COVER-UP?

DOJ TO LOOK INTO THE DEATH OF PINO

SANTA ROSA-Anger over the lack ala proper local investigation into the mysterious death of her son has prompted a county native to seek the help of the United States Department of Justice.

Bernadette Sanchez Foster, now living in Maine, has asked the federal government to look into the circumstances surrounding the June 2002 death other son Troy Pino.

Pino died several days after an altercation with two local men at the Cinnamon Ridge Apartments and it was that altercation that Mrs. Foster believes lead to her son's death.

According to an investigation by Mike Corwin, hired by the Fosters to investigate the death, Pino was severely injured during a fight at his girlfriend's apartment on June 7, 2002. The girlfriend's former husband and another party assaulted Pino. During the altercation, the.Santa Rosa Police Department was called to the scene, the lead officer being related to the party involved in the fight with Pino.

Other officers were called to the scene and, during the altercation; mace was inappropriately used upon Pino, this according to witnesses.

Also according to witnesses, the police did not immediately intervene in the assault against Pino by two men who outweighed him by more than three hundred pounds. The witnesses stated that the officer related to the combatant did the macing to Pino, and that the combatant was known to be a violent individual.

The next day, one of the officers detained Pino and his girlfriend, without just cause, as they were driving. in Santa Rosa. After telling Pino he could not associate with his girlfriend Pino exited the vehicle, leaving the him on the side of the road. He died at University Hospital in Albuquerque two days after being airlifted from Santa Rosa's Hospital.

Foster's investigator, Corwin, has indicated that, some how, the Santa Rosa Police department did not have any records of the officers' "dispatch to the apartment complex on that night in June.

Two of the officers, one related to the persons in the call, had not been officially certified as police officers at the time of the incident.

Two officers filed undated reports regarding the incident on June 7th and the third officer at the scene, to date, has not filed a report even after he was requested to do so by the Fosters. Neither of the two police reports contains enough information about any of the events that occurred that evening. In particular, there

is no mention of Pino being assaulted by two Santa Rosa residents or that the police used mace.

The police reports read as two consecutive pages from the same novel. It's difficult for me to believe they are not conspired and rehearsed, Foster stated.

Two of the officers denied that an assault occurred, when asked by a New Mexico State Police investigator, although one officer did admit that his can of mace "accidentally went off."

When Pino was taken to the hospital the day after the altercation, hospital reports appear to have been changed to reflect the nature of his injuries-in which parts of the report were crossed out

Officers did not request medical assistance for Pino nor did they drive him to Guadalupe County Hospital for examination.

After the State Police investigation, the case went nowhere and was pressured to be closed by the Las Vegas District Attorneys Office.

But Mrs. Foster and her husband Malcolm, a Cub Scout enthusiast who practiced dentistry in Santa Rosa from 1984 to 1990, are not letting the circumstances, which the hiring of a private investigator has revealed of their son's death, go unnoticed.

"Friends and associates alike offered frank opinions and candid remarks about several of the police officers in the department, none being complimentary. It forever appears that needed change in Santa Rosa's police department goes unchallenged. Same story, different day, Foster angrily stated.

The Foster's went to District Attorney Matt Sandoval with their findings, asking that the case be reopened and witnesses re-interviewed. The Foster's waited nine months without a word. In January of this year, they again, tried to contact Sandoval's' office for any reply and received none.

Earlier this month, the couple sent a letter to Patricia Madrid, Attorney General for New Mexico stating:

"Since the 13th of January there has not been as much as a hint from the District Attorneys office that the investigation is moving forward. Refusing to return my telephone inquiries, the investigation has become as lifeless as my son.. .the conduct of two Santa Rosa residents against our son, the behavior of three Santa Rosa Police officers and the superficial sincerity of the District Attorney's office requires nothing less than neon lighting, he wrote to Madrid.

But the Foster's did not stop with the Attorney General's Office. They have contacted the United States Department of Justice's Criminal Civil Rights office to investigate the matter.

They are seeking an investigation under the United States law: Title 42,, U.S.C., Section 14141 Pattern and Practice.

This civil statute was a provision within the Crime Control Act of 1994 and makes it unlawful for any govern- mental authority, or agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and deobtain appropriate equitable and declaratory relief to eliminate The pattern or practice.

It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. Color of law simply means that the person doing the act is using power given to him or her by a governmental agency (local, state or federal). Criminal acts under color of law include acts not only done by local, state, or federal officials within the bounds or limits of their lawful authority, but also acts done beyond the bounds of their lawful authority.

Off-duty conduct may also be covered under color of law, if the perpetrator asserted their official status in some manner. Color of law may include public officials who are not law enforcement officers, for example, judges and prosecutors, as well as, in some circumstances, non governmental employees who are asserting state authority, such as private security guards.

While the federal authority to investigate color of law type violations extends to any official acting under "color of law , the vast majority of the allegations are against the law enforcement community.  The average number of all federal civil rights cases initiated by the FBI from 1997 -2000 was 3513. Of those cases initiated, about 73% were allegations of color of law violations.  Within the color of law allegations, about 82% were allegations of abuse of force with violence (59% of the total number of civil rights cases initiated).

The Supreme Court has had to interpret the United States Constitution to construct law regulating the actions of those in the law enforcement community. Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed. -

Most of the FBI's color of law investigations would fall into five broad areas: 1, excessive force; 2, sexual assaults; 3, false arrest/fabrication of evidence; 4, deprivation of property; and 5, failure to keep from harm.

In making arrests, maintaining order, and defending life, law enforcement officers are allowed to utilize whatever force is "reasonably necessary. The breath and scope of the use of force is vast. The spectrum begins with the physical presence of the official Through the utilization of deadly force. While some types of force used by law enforcement may be violent by their very nature, They may be considered "reasonable, based upon the circumstances.

However, violations of federal law occur where it can be shown that the force used was willfully 1 "unreasonable or excessive against individuals.

In the letter to the Justice Department, the Foster's contend that, in addition to their son being assaulted, Santa Rosa Police denied him "Freedom of association and "Freedom of equal I protection from an unwarranted assault'. As well, they contend the inappropriate use of mace constituted "Excessive use of force .

Foster further stated in his letter to the Attorney General, "Santa Rosa citizens deserve a professional, ethical and an- impartial behavior from those appointed to protect and serve them. Your awareness is essential when individuals are not equally represented and when they do not receive the aforementioned conduct from officials to whom they are asked to place their trust and confidence. - Accountability is paramount.