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Copyright © 2015 Albuquerque Journal

Elementary school principal Stephen Maresca was heading home from hiking in the Sandias with his wife, three children and their dog when the family was arrested by armed deputies after a rookie Bernalillo County Sheriff’s Office deputy typed in a wrong license plate number.

Responding officers had the couple and their children exit the truck, walk backward with their hands up and lie face-down on the pavement. The officers aimed firearms at the parents and children, including two boys ages 17 and 14 and a 9-year-old girl, according to a summary of evidence in an opinion by the 10th Circuit Court of Appeals in Denver.

The court ruled last month that the arrest was illegal – reversing an earlier decision that gave the arresting officer, Deputy J. Fuentes, immunity.

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The county is now on the hook for that 2013 arrest by Fuentes.

The Appeals Court sent the case back to federal district court for a jury to decide whether the subsequent actions of that officer and others who showed up later constituted excessive force.

The reversal was based not on the mistyped number itself, the appeals court said.

Instead, it was based on the fact that the deputy failed to notice the difference between a 2009 Chevrolet sedan with expired plates, which was the vehicle reported stolen, and a 2004 Ford pickup with current plates, the vehicle Maresca was driving, or to check the information. That information was in front of Fuentes on a computer screen the entire time.

“We do not hold that a mere typing error in entering a license plate number would make it unreasonable for the officer to rely on the result of the database inquiry,” the Oct. 22 court opinion said. “Our conclusion that it was unreasonable for Fuentes to arrest the family is based upon all the circumstances of the case.”

The lawsuit was filed by Kennedy, Kennedy & Ives Law on behalf of the family of Maresca, a former police officer in Texas, his wife, Heather, and their children following the March 14, 2013, stop on the Crest Road just before the intersection with N.M. 14.

Maresca, who left law enforcement to become an educator, was a principal at Arroyo del Oso Elementary School at the time of the arrest, a position he still held when he died of a heart attack last April. He was 53.

According to the family’s lawsuit, Fuentes, followed by another patrol officer in a separate vehicle, called in the correct license plate number to dispatch but entered a number off by one digit in her computer.

The computer indicated from that number that the vehicle was stolen.

The deputy behind her, G. Grundhoffer, did not run any plate numbers before the two approached the pickup at gunpoint, the lawsuit said.

Maresca held up his hands with his driver’s license in one hand and repeatedly told the officers there must be a mistake, the complaint says. Deputies yelled at them to lift their shirts to show that they were unarmed and ignored Maresca’s pleas to check his ID and vehicle registration.

Other officers arrived, but none verified that the license plate belonged to a stolen car, the complaint says.

The family was detained for about 40 minutes, fearful, humiliated, tearful and separated from one another in different vehicles, it says. Maresca had been allowed to take their agitated dog, Maya, with him after it wandered into the highway.

Eventually, a sergeant arrived and apologized for the deputies’ mistakes, the lawsuit says. The girl, however, has been diagnosed with post-traumatic stress disorder as a result of the incident, it says, and all of them had road rash.

Attorneys for Fuentes and the other deputies argued that the investigative stop was justified at its inception, was reasonable and that no excessive force was used.

The case was first heard by Circuit Judge Paul J. Kelly of Santa Fe, who was sitting by designation as a district judge. He found all the defendants were entitled to qualified immunity because the stop was an investigatory detention reasonable under the circumstances.

Kelly said that, while Fuentes’ mistake was “regrettable,” nothing in the facts suggested intentional misconduct. He granted summary judgment in favor of the defendants on all the federal claims.

The opinion by the three-judge panel disagreed.

“The arrests at issue here were not supported by probable cause because Fuentes lacked an objectively reasonable basis to believe that the Marescas’ truck was stolen. An unreasonable mistake of fact cannot furnish probable cause,” said the opinion by Senior Judge David Ebel, joined by Chief Judge Timothy Tymkovich and Judge Mary Beck Briscoe.

The ruling sends the case back to the district court for further action on the excessive force claims.