Motion heard in wrongful death suit

CLOVIS — A state district court judge on Monday heard a motion to dismiss a wrongful death lawsuit against Roosevelt County officials.

Judge Fred Van Soelen said he would take a few days making a decision in the case that stems from the 2016 death of a Portales woman killed following a high-speed chase with Roosevelt County Sheriff Malin Parker.

The case has already been dismissed in federal court.

Attorney Daniel Macke represents defendants Roosevelt County, its board of commissioners and its Sheriff Malin Parker. In his February dismissal motion, he pointed to the U.S. District Court’s decision last year that “Sheriff Parker acted reasonably, i.e. he did not employ unconstitutionally excessive force” in the Aug. 31, 2016, chase that ended in the death of Irisema Hernandez, 33.

The chase started around noon that day at a motel in Portales, where Parker spotted Hernandez and attempted to contact her regarding an apparent violation of a house arrest. A high-speed pursuit ensued, with Hernandez riding passenger in a Lincoln driven by Eduardo Lopez. Parker followed with lights and sirens in his unmarked Chevy truck and a uniformed deputy riding passenger. The chase lasted about five minutes and ended when “Sheriff Parker’s truck struck the Lincoln sending the Lincoln into the ditch and culminating in Hernandez’s death.”

Lopez subsequently pleaded guilty to aggravated battery on a peace officer and vehicular homicide, and federal litigation filed by Hernandez’s mother — Elsa Hernandez — went to U.S. District Court in December 2017.

In an opinion filed last year, U.S. Magistrate Judge Kevin Sweazea declared Parker was entitled to qualified immunity on federal claims and “decline(d) to exercise supplemental jurisdiction over the remaining state-law causes.”

Plaintiff attorney Gary Mitchell subsequently filed a tort claim last year in the state’s 9th Judicial District, alleging negligence, aggravated assault and battery in the incident.

“In this case (we have) an innocent person, which means she wasn’t the one driving the car, she wasn’t the one fleeing,” Mitchell told The News. “My belief is, frankly, if you knew all the facts and a jury knew the facts, they would think it was idiotic what happened that day.”

Macke on Tuesday told The News he declined to comment on pending litigation, but pointed to his dismissal motion. In that motion he cites Sweazea’s decision last year, which argued that “the estate’s underlying assumption that Sheriff Parker should have simply stopped chasing Lopez and thereby ended the threat to Lopez, Hernandez and the public does not withstand scrutiny.”

While Mitchell argued that the state’s “safe pursuit act” recommends terminating a pursuit “unless someone’s life is in danger or it’s a violent criminal,” Sweazea said there’s no guarantee Lopez would have stopped fleeing even if Parker had pulled back.

“Additionally, requiring Sheriff Parker to capitulate would create obvious ‘perverse incentives’ that ‘a fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights,’” Sweazea wrote.

Parker did not attend the motion hearing Monday morning.

Mitchell said Hernandez’s mother, “just wants her day in court.”

“It won’t bring her daughter back but maybe it will stop others from acting how the sheriff did,” he said.