On September 6, 2005 at approximately 11:30pm, Gary and Penny Schinagel were enjoying cocktails, playing music very loudly, and dancing nude within each other’s arms in their home’s living room. They were celebrating freely because they just dropped off their youngest daughter to college. An APD officer was dispatched to the home due to a noise complaint from a neighbor. After speaking with the complaining party, the officer walked to the Schinangel residence to investigate where the loud music was coming.

The officer attempted to knock on doors and windows for eight minutes. When he realized no one was responding, the officer entered a side gate to investigate if anyone was home. The officer eventually made his way to an entry door where he knocked again. Finally, the loud music stopped yet no one responded to the officer. The entry was unlocked and the officer opened the door and shouted, “Albuquerque Police Department.”

While standing near the front entrance, the officer saw Gary Schinagel enter the room completely naked. Schinagel ducked into another room and returned wearing his wife’s purple silk bath robe. Schinagel asked the officer, “Do you have a warrant?”

The officer answered with, “I have a violation of the law.”Plaintiff then began to yell to the officer that he needed to leave immediately and began to make an advance on the officer. The officer yelled to Plaintiff “whoa” to indicate he needed to stop advancing towards him. Plaintiff did not stop his advance and punched the officer in the face.  The officer returned the favor by throwing Plaintiff backwards to the ground and arrested Plaintiff for the felony of battery on a police officer.

As the officer was attempting to arrest Schinagel, Penny Schinagel entered the room and began to scream at the officer asking him what her husband done wrong. The officer begged for Mrs. Schenagel to stay back, but Mrs. Schenagel did not oblige. She jumped on the officer’s back in order to pull him away from her husband. In order to get better control of the situation, the officer used OC spray on both Gary and Penny.

Gary Schinagel was able to escape from the officer. Mr. Schinagel ran out of the room, where the officer feared he would arm himself. In the mean time, the officer quickly handcuffed Mrs. Schinagel. Mr. Schinagel returned with a chair raised in the air as if he was going to strike the officer. The officer demanded Mr. Schinagel drop the chair as he pointed his handgun  towards him. Mr. Schinagel dropped the chair and ran out of the room immediately.

The officer did not know what Mr Schinagel was capable of. Concerned for everyone’s safety, the officer gained physical control over Mrs. Schinagel and threw her in handcuffs. The officer then led Mrs. Schinagel outside of the home to the sidewalk to wait for back up officers.

Shortly after, emergency medical personel reached the house in order to flush the mace out of Mrs. Schinagel’s eyes. Also, seven other APD officers showed up to locate Mr. Schinagel. The officers made several announcements to Mr. Schinagel pver a Public Address System to leave the house and surrender. Mr. Schinagel ignored the requests and remained inside his house.

In order to avoid a stand-off, two officers entered the home and attempted to apprehend Mr. Schinagel before anyone could be hurt. The two officers forced entered the house before Mr. Schinagel could arm himself. They located Mr. Schinagel in the kitchen where they demanded him to get down. Mr. Schinagel ignored the lawful command. An officer then fired a Taser at Mr. Schinagel. The Taser malfunctioned and did not activate a shock. The other officer then managed to take Mr. Schinagel to the floor and finally handcuffed him.

Mr. and Mrs. Schinagel were transported to the Foothills substation.  The necessary booking paperwork and a criminal complaint were completed and the Schinagels were transported to the Metro Detention Center without further incident.  Gary and Penny Schinagel were charged with Battery on a Police Officer (4th degree felony) and conspiracy to commit a 4th degree felony (4th degree felony).

The criminal charges against the couple were dismissed by a New Mexico District Court Judge.  In 2006, Mr. and Mrs. Schinagel filed a lawsuit against APD claiming the following counts: Wrongful Arrest/unlawful detention, unreasonable and excessive force, false imprisonment, negligence, malicious and false prosecution, and other additional tort claims

Before the federal trial, Judge C. Leroy Hansen settled a major piece of the action when he ruled the officer violated the Schinagels’ Fourth Amendment right to protection from unreasonable searches and seizures in their home.  The jury returned a verdict that judgment should be entered for Plaintiffs Gary and Penny Schinagel on their Fourth Amendment unlawful entry claim against the Defendant in the amount of $1.00 each. The Court further entered final judgment in favor of the Defendants on each of the Plaintiffs’ other claims, including the Schinagels’ excessive force claims.