Dear's Attorney Calls the Loss and Destruction "Nefarious."
The city of Albuquerque has lost or destroyed evidence that could have helped fired Albuquerque Police officer Jeremy Dear prove his defamation lawsuit against former APD Chief Gorden Eden. The revelation of the lost and destroyed evidence prompted Dear's attorney to say that “something nefarious is afoot” at APD and the city.
The city said it “is unable to locate” the Panasonic ToughBook laptop computer that Dear used when he was an officer, and that the Western Digital Passport external hard drive that Dear uploaded his lapel camera videos to “was disposed of in the normal course of business” the day after Dear was fired in December 2014. APD fired Dear on Dec. 1 of that year, and it "disposed of" his external hard drive on Dec. 2.
(Photo: Jeremy Dear.)
The laptop and the hard drive would have contained hundreds, if not thousands, of files, including police reports, information about ongoing cases, electronic correspondences Dear had with his superiors and APD officials, and even vehicle identification number checks that Dear would have done in the course of his job.
The lost and destroyed evidence could have helped Dear prove that he routinely downloaded lapel videos while he was a cop and that Eden's claims that Dear was insubordinate for failing to download videos were false. In short, Dear can’t prove that he did comply with department orders because evidence that he had complied is now missing.
The city revealed that it had lost or destroyed the evidence in a response to a discovery request by Dear's attorney, Tom Grover, that it produce the laptop and hard drive. The city's response didn't say who destroyed the hard drive or who ordered it to be disposed of." Grover ripped the city for failing to preserve the evidence.
“It’s not unreasonable to conclude something nefarious is afoot,” Grover told ABQReport. “Regardless of anybody’s position on my client and what happened in April, 2014, the public deserves transparency and the truth from the City and we are not seeing that right now.
“Every effort my client has made to get copies of investigations concerning him that allegedly support the City’s act of terminating him has led to litigation because the City has unlawfully withheld records, failed to comply with public records law, or inexplicably couldn’t find records.”
Retired APD Sergeant Dan Klein said the destruction of the external hard drive one day after Dear was fired was "outrageous" and warrants a criminal investigation because public records were destroyed, which he said is a fourth-degree felony.
"This possibly crosses the line into a criminal act. of destroying public records, which is a fourth-degree felony," Klein said. "Now that the city has admitted that they intentionally destroyed the Passport drive, it screams for a criminal investigation. It's outrageous conduct on the city's part. The investigation needs to point to who in APD, or who in the City Attorney's office ordered the destruction of this drive. We need to know who did this."
Dear fatally shot 19-year-old suspected car thief Mary Hawkes in April of 2014. There was no video of the shooting from Dear because his lapel cam had either come unplugged or had malfunctioned, or because he hadn't turned it on. After the shooting, APD launched an internal affairs investigation into Dear. Eden and others at APD said that in the months before the shooting, Dear had been ordered to record every encounter he had with members of the public.
Dear recently lost a court case to get his job back, and in January, the city reached a $5 million settlement with the Hawkes family in a wrongful death lawsuit against APD and the city.
Grover said the lost and destroyed evidence makes the case similar to the Hawkes' family lawsuit that the city settled. Last October, state District Court Judge Nan Nash, in a controversial ruling, said that Dear's shooting of Hawkes was unreasonable because the city had no lapel camera evidence to prove that it was justified.
In her ruling, Nash said that it was “extremely disturbing and suspicious” that the city had no video of the Hawkes shooting.
“APD knew they had a general problem with documenting use of force,” Nash's opinion said. “APD knew they had a specific problem with this case as evidenced by the IA investigations and discipline recommendations."
The city settled with the Hawkes family a couple of months after Nash's decision.
Dear's lawsuit against Eden and the city claims that Eden defamed the fired officer by publicly saying that Dear had been insubordinate by failing to record every one of his contacts with member of the public. The lawsuit claims that Eden’s comments were false. An APD internal investigations did not find that Dear was untruthful with investigators, the lawsuit alleges. When the lawsuit was filed late last year, Grover said that Dear was not insubordinate because he was never ordered to record all citizen encounters on his lapel camera, and so he could not have violated that order. The lawsuit also alleges that such an order would not be lawful.