Appeals court: Silver City PD brushed its own domestic violence policy aside
Judge denies qualified immunity to police who failed to protect Nikki Bascom from an SCPD officer
Nikki Bascom (Photo courtesy of attorney Laura Schauer Ives)
A federal appeals court upheld a ruling denying qualified immunity to police in Silver City for failing to protect to Nikki Bascom, a nurse and mother of two who was killed in 2016 by her former partner, a Silver City police captain, in a murder-suicide.
Five years after she died, the ruling puts police on notice in Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah that it is illegal for them to provide less protection to domestic violence victims when their assailants are police officers. Those six states fall under the jurisdiction of the 10th Circuit Court of Appeals, where Bascom’s case helped establish this legal precedent in June.
Qualified immunity is a legal defense that allows government officials and police officers to slip legal consequences after infringing on someone’s civil rights. In April, New Mexico became one of the first states in the country to abolish qualified immunity, making it possible for people to sue police officers and others in state court for constitutional rights violations. Supporters of the change argued that people should not have their cases thrown out because of qualified immunity, a legal rule invented by the U.S. Supreme Court in 1982.
Bascom’s case is working its way through federal courts — not state court. Still, it offers an advance look at the new legal landscape for police in New Mexico.
Bascom’s mother, on behalf of her estate and children, is suing the former Silver City police chief and another officer for failing to protect her daughter from officer Marcello “Marc” Contreras. She is also suing Silver City and Grant County.
According to the lawsuit, the department covered up information about Contreras stalking Bascom in 2016. Records show the police chief and another officer also withheld information from a sheriff’s deputy who was following Contreras 20 minutes before he killed Bascom.
No one is immune
In April 2019, a federal judge ruled that when the murder-suicide happened, the law was already clear that it’s illegal for police to offer less protection to domestic violence victims whose assailants are police officers.
The police pushed the case to the federal appeals court, which again denied their qualified immunity defense in a unanimous ruling by a three-judge panel.
The judge in District Court, Gregory Wormuth, will continue to oversee preparations for a jury trial while the officers ask the Supreme Court to hear the case, court records show.
The police asked Wormuth to pause proceedings until their request to the Supreme Court is processed. He denied their request because it is unlikely that the Supreme Court will take up the case.
“This case has been stalled for years as the defendants pursued this defense,” Wormuth wrote on Aug. 4. “Two courts have firmly rejected the defense.”
Laura Schauer Ives, the attorney representing Bascom’s estate, her two children and their grandmother, said her clients were relieved by the appellate court’s decision. They have been waiting for five years, she said, while “Silver City has tried to justify the unjustifiable.”
“You think about the horror of this happening to begin with, and then to have the government defend it, and say that everything’s OK,” Schauer Ives said. “Victims of law enforcement are never treated like any other crime victim, and it’s cruel.”
She said the fact that the defendants are still fighting the case is a slap in the face. Two courts sided with Bascom’s family, she pointed out, yet police continue to fight it.
“It does damage to my clients, to the children left behind here, and it does damage to our community,” she said.
Taxpayers are footing the bill for the police to make this damaging, ineffective argument, she emphasized, “instead of paying money to retrain officers, instead of paying money to the victims in this case, instead of making sure this never happens again, they want to fight it tooth and nail.” That money could have gone to just caring for the children. “It’s gross,” Schauer Ives said.
The attorneys representing the police did not respond to a request for comment.
Warning signs ignored
This account comes from police interviews and court depositions:
Bascom married and divorced Contreras in the ’90s. They dated again in 2016. When he killed her, they had been apart for over a month.
Bascom’s best friend of 16 years was Kelli Sierras. She told a State Police detective in an interview that Bascom started experiencing weird behavior by Contreras in early March of that year while they were dating. Bascom texted that her boyfriend had “lost it” while she attended a work conference in Las Vegas, Nevada, and called her many times. He’d even called her coworker at Hidalgo Medical Services, Dr. Darrick Nelson, out of jealousy.
“When she was back at home, Marc (Contreras) tried to commit suicide,” wrote the State Police detective who interviewed Sierras in a police report.
After that, Contreras moved out of their shared home, and their relationship was “back and forth, good and bad,” Sierras said.
Multiple police interviews confirm that a couple of weeks later, Contreras confronted Bascom’s coworker outside a Walgreens. Bascom told Sierras she did not want to press charges, because Contreras had threatened to kill her if she put a restraining order on him.
But she did call then-Police Chief Ed Reynolds — who was also her best friend’s dad — to report that Contreras had harassed the doctor.
No Silver City police officer documented the incident, which was required by their domestic violence policy. No officer conducted an internal inquiry, which would have referred it out to other agencies for investigation. Attorneys for the police admitted to this in the court record.
Two days after the Walgreens confrontation, Chief Reynolds met with Contreras. Reynolds told the court he called the meeting to warn Contreras to watch his conduct. But in the same conversation, he promoted him from lieutenant to captain and gave him a 5% raise.
A month later, Bascom was forced off the road by a Silver City police car that swerved in front of her, court records show. On duty, in uniform and carrying a gun, freshly promoted Capt. Contreras walked up to her car window. She said in an interview recorded later that day, that she tried to call 911, but he reached into her car and took her phone.
Then he drove to the doctor’s house and said, “I’m telling you right now, you haven’t seen the last,” according to audio that Nelson recorded of the incident and later played for police.
Even more warning signs
Chief Reynolds told the court that after Conteras murdered Bascom, Silver City Police investigators found that in May 1999, his then-wife reported to police that he had threatened to shoot her while holding a gun, because he believed she was cheating on him. Contreras admitted to having pushed his wife but denied threatening her. The department charged him with battery against a household member. They still hired him as an officer two years later in 2001.
Then in 2003, the department investigated allegations that Contreras had sexually abused a child. The documentation of that investigation has since disappeared. After the murder-suicide, the department found an SD memory card that contained pornographic video and photographic images of Contreras in uniform with girls who appear 12 to 13 years old undressing, court records show.
Bascom went to the police station and told Chief Reynolds that Contreras was harassing her and had taken her phone.
Reynolds sent Capt. Ricky Villalobos to the doctor’s home to ensure he was safe. When Villalobos came back to the station afterward, he took a statement from Bascom. He began the interview by warning her that she could be charged with false reporting.
She went to stay with Sierras and parked her vehicle behind the house where Contreras would not see it.
The Grant County Sheriff’s Office issued a criminal trespass warning to Contreras for Dr. Nelson’s home that afternoon, but a while later, the doctor called 911 to report that he had seen Contreras nearby.
The Sheriff’s Office sent Sgt. Michael Yost to Nelson’s home. He called Villalobos and the chief to tell them he was following Contreras, but he could not stop him because he’d only been near the home and not on the property. Yost said he did not have enough information to stop Contreras for stalking.
Both the chief and Villalobos mentioned Contreras had been placed on administrative leave, but they did not say why, court records show. Neither shared any of the information about what Bascom reported earlier that day about being driven off the road. They also didn’t talk about how Contreras had been entering her home without her permission, how he’d taken her phone or how he’d confronted the doctor in previous weeks.
So, Yost did not stop Contreras.
Bascom sent her friend Sierras a text asking for the address of a domestic violence shelter in Silver City. She asked her what she should do and said Contreras had been following her in a different car.
Together, they drove to pick up their four children from school, and saw that Contreras was following them. They picked up a second car and drove separately. They thought they lost him.
As they pulled into Sierras’ driveway, Contreras drove up behind them. Bascom locked herself in the car while Sierras quickly gathered the kids in her truck, drove away and called 911. Sierras’ husband Chris heard screaming and came out of the house, he tried to block Contreras, who pulled a handgun from his pocket and aimed it at him. Eventually, Contreras turned over the gun, saying he just wanted to talk to Bascom, Chris Sierras told investigators.
As Bascom was getting out of the car, Contreras reached into his pocket, pulled out a second handgun and shot her multiple times before shooting himself.
When Yost arrived at the scene, he said several times that he could have saved Bascom’s life if he would have stopped Contreras when he was following him earlier, court records show. He said the same thing to the dispatch operator, who responded that it wasn’t his fault because “they have been sweeping it under the rug for a month.”
The dispatcher went on to tell the court that Contreras had been protected by police right up until the point when he killed Bascom.
Chief Reynolds said in a deposition the police had not asked the Sheriff’s Office to investigate before the murder-suicide because they “hadn’t gotten to it.” The chief also admitted Contreras potentially could have been charged with larceny and false imprisonment before the murder-suicide, but no charges were filed, violating the Silver City Police Department’s own policies.
In the aftermath
When Bascom’s adolescent son learned about her death, he told his grandmother, “My whole world is gone.” He and Bascom’s daughter don’t have their mother, and never will, said their lawyer, Schauer Ives.
“And not just for the significant events, not just for graduation, and getting married or winning a race, or getting a prize,” she says. “They don’t have dinner with her. They don’t get tucked in, you know, get to tell her about their day. Forever. Forever.”
It’s not unusual for law enforcement to protect their own, she pointed out.
“This is a known problem, and there are easy solutions to it,” Schauer Ives said. “Had they done what they would have done in any other domestic violence case involving a victim who wasn’t a victim of law enforcement, Nikki Bascom would be alive. Her children would have their mother. There’s just no question about that.”
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