BY MAIRE O’NEILL
A lawsuit has been filed against Los Alamos Police Det. Ryan Wolking and Los Alamos County in First Judicial District Court by Emilio Atencio of Rio Arriba County as an individual and the parent and guardian of two minor children who attend Los Alamos High School.
The suit alleges Wolking acted “willfully and unlawfully albeit under color of law with the intent to deprive” him and his sons who are 17 and 15 years old, of their statutory and constitutional rights, including but not limited to their right of free speech, their right to be free of unreasonable detention and interrogation under the New Mexico Children’s Code, their right to be free of warrantless search and seizure without probable cause, and their right to “publish personal records made of consensual sexual acts committed” by of his 17-year old son and an adult female. Atencio alleges that the sexual acts were “neither unlawful not recorded where (the female) had any reasonable expectation of privacy, i.e. in an auto parked in a public place.
Atencio claims Wolking went to LAHS Aug. 28 without probable cause or warrant and “seized and/or incarcerated” Atencio’s two sons, “removing them to a private room without the presence of any school official or their parents”.
“During the same custodial interrogation (Wolking) who is Anglo, did question and harass (Atencio’s sons) in a way that is indicative of racial prejudice or bias against Hispanics”, the suit states. It alleges Wolking refused to advise the minor children of their constitutional rights against self-incrimination so that any and all statements obtained during the “interrogation”, are inadmissible for any purpose including “serving as any basis for issuance of a search warrant”.
Atencio alleges Wolking used intimidation and threats to “extort the minor children to relinquish to him their property which they resisted” but forcibly removed their phones from them against their will. Atencio maintains Wolking took advantage of his position of power and office over the minors by removing the phones without a search warrant or exigent circumstances and that taking the phones constitutes criminal theft under New Mexico law.
The suit claims Wolking “maliciously reported to Espanola Magistrate Judge Joseph Madrid that he had probable cause while “concealing the fact that he had illegally seized the property”. It alleges Wolking also received a search warrant Aug. 31 from First Judicial District Chief Judge Mary Marlowe Sommer while allegedly concealing that the female was an adult having sex with a minor child, that the female as an adult had “no reasonable expectation of privacy under circumstances where she was having sex with a minor child in a public place which could be viewed by any member of the public”.
Atencio alleges Wolking concealed the fact that his son had the right under New Mexico law to record his own actions done in public with the female adult under circumstances were she had no expectation of privacy and that the phones were illegally seized against the wishes of his sons. Atencio also appears to believe his son has the right to share the video
Atencio believes Wolking is investigating a violation of the state voyeurism statute. He maintains it is lawful for his son to keep the recording of the female adult as long as his son is also included in the recording.
The suit ask the Court to order immediate return of the phones, award damages because of the “various intentional torts” committed by Wolking as an agent of Los Alamos County and “individually for his own racial motives or determination to abuse the power of his office”. It also seeks punitive damages against Wolking for alleged perjury while obtaining the search warrants. It states that the County is being sued for it’s failure to train Wolking and “approving or ratifying” his actions.
The Atencio’s attorney David Berardinelli of Santa Fe filed a peremptory challenge of First Judicial District Jason Lidyard and the case has been assigned to Judge Francis Mathew. Los Alamos County Attorney Alvin Leaphart declined Thursday to comment on the lawsuit.