On June 15, a man was shot in Old Town over the “La Jornada” (The Journey) sculpture in front of the Albuquerque Museum. The shooting occurred during a protest for the removal of the figures of Juan de Onate de Salazar in the sculpture. During the protest, there were 5 to 6 heavily armed New Mexico Civil Guard (NMCG) members, some dressed in military camouflage, present trying to “protect” the sculpture. It was reported that the shooting occurred when at least 3 of the protesters attacked a person identified as Steven Baca who was walking away from them. Steven Baca was struck in the head with a skateboard and Baca drew a gun, shot numerous times, with one shot hitting one of the protesters.
Civil Guard members said they take zero responsibility for the shooting and what happened at the June 15 protest and that Steven Baca is not a member of their group. NMCG Chaplin and Founder Bryce Provance said that after the gunfire, his men set their “scope” on the shooter and “would’ve blown his brains out” if he kept shooting. NMCG member John Burks, an Army veteran who served in “quite a few deployments” said that he could not “specifically speak on” his kicking of the shooters gun away to “secure the crime scene“ but did say “People said we protected him after he shot. … No, we detained him and formed a perimeter around him so that he didn’t pick that gun back up and shoot more people.”
On June 16, the Albuquerque Police Department released a photo of the 13 guns and 34 magazines taken from militia members at the protest. In the APD photo there are 4 semi-automatic rifles. A controversy is now brewing over the handling of the protest by the Albuquerque Police Department (APD).
BERNALILLO COUNTY DISTRICT ATTORNEY FILES CIVIL LAWSUIT AGAINST NMCG MILITIA
On Monday, July 14, it was reported that Bernalillo County District Attorney Raúl Torrez filed a civil lawsuit to stop the New Mexico Civil Guard private militia from usurping the state’s military and law enforcement authorities. The lawsuit is a “Complaint for Injunctive and Declaratory Relief” filed in the 2nd Judicial District Court against the New Mexico Civil Guard and 14 of its members who “include some individuals associated with white supremacist and neo-Confederate organizations,” according to the civil complaint.
The lawsuit argues that the New Mexico Constitution says civilian militias can only be activated by the governor and the group is acting like law enforcement. They are acting like law enforcement by holding training sessions, outfitting themselves with military equipment and gear, and patrolling protests armed and in uniform without any legal authority to act in any kind of law enforcement capacity.
The lawsuit alleges in part:
“NMCG’s coordinated, armed, and uniformed presence at public events results in intimidation and creates a chilling effect on the exercise of First Amendment rights. … By appearing armed and uniformed at such events, NMCG creates a risk that its members will be mistaken for authorized police or military personnel, confusing members of the public and complicating the efforts of law enforcement to respond to any unrest that arises at those events. … Law enforcement must also take into account the risk of triggering violence on NMCG’s part when determining whether and how to intervene in any disturbances that occur at public gatherings attended by the group.”
Torrez claims the group, whose membership he alleged includes people associated with white supremacist and neo-Confederate ideology, has routinely used paramilitary tactics “at protests, demonstrations, and public gatherings throughout New Mexico, providing wholly unauthorized, heavily armed, and coordinated ‘protection’ from perceived threats.”
The Civil Complaint for Injunctive Relief is requesting a District Court Judge to prohibit the civil guard and any successor groups from “organizing and operating in public as a military unit independent of New Mexico’s civil authority and without having been activated by the governor of New Mexico”. The civil complaint is also seeking to prevent the NMCG from “assuming reinforcement functions by using or projecting the ability to use organized force in response to perceived threats at protests, demonstrations, or public gatherings.”
The lawsuit filed is being touted as a unique endeavor by the district attorney, who has joined with Georgetown University’s Institute for Constitutional Advocacy and Protection to sue in order to stop the New Mexico Civil Guard from engaging in law enforcement activities prosecutors say can only be authorized by the governor. The civil law lawsuit is being touted as a “first of its” kind because it alleges that the NMCG is “organizing and operating in public as a military unit independent of New Mexico’s civil authority and without having been activated by the governor of New Mexico”.
CITY ATTORNEY’S RELUCTANCE TO ACT PATHETIC
Bernalillo County District Attorney Raul Torrez said he was frustrated with city officials and the City Attorney’s office saying they could not do anything to prevent militia members from showing up, heavily armed at demonstrations. At a news conference the day after the shooting, City Attorney Esteban Aguilar had said New Mexico’s open carry law, as well as the First and Second Amendments in the U.S. Constitution, prevents law enforcement from intervening if a person is legally allowed to carry a gun.
When asked if the city had itself considered filing a lawsuit against the Civil Guard, Mayor Keller’s spokesman Matt Ross said in a statement:
“Cities are prohibited by the state Constitution from passing legislation on guns including their presence at protests. Despite that, over the last year Albuquerque has boldly enacted a prohibition on guns in City spaces like community centers … This is being challenged in court and as we continue to explore our legal options in other areas, we welcome any help the DA is now ready to provide.”
Based on the statements of City Attorney Estaban Aguilar and City spokesman Matt Ross, its painfully obvious that they do not have a working knowledge of New Mexico statutory law and city ordinances governing activity that constitutes a “public nuisance”.
NEW MEXICO STATUTES AND CITY ORDINANCES ON NUISANCE ABATEMENT
New Mexico statute defines a “public nuisance” as consisting “of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either:
“A. Injurious to public health, safety and welfare; or
B. Interferes with the exercise and enjoyment of public rights, including the right to use public property.”
Whoever commits a public nuisance for which the act or penalty is not otherwise prescribed by law is guilty of a petty misdemeanor.”
(30-8-1, NMSA 1978, Public Nuisance defined).
The New Mexico legislature has also empowered municipalities by statute with very broad authority to define a nuisance, abate the nuisance and impose penalties and initiate civil causes of action.
State statute provides that “A municipality may by ordinance … define a nuisance, abate a nuisance and impose penalties upon a person who creates or allows a nuisance to exist. …”
(3-18-17 Nuisances and Offenses; Regulation or prohibition)
State statute also grants municipalities with broad powers and provides that:
“A municipality may:
A. sue or be sued; ….
F. protect generally the property of its municipality and it inhabitants;
G. preserve peace and order within the municipality; …”
(3-18-1 General Powers (of Municipality)
Note that the “creating, performing or maintaining” is used in defining a public nuisance and it is a crime under state law, which would be prosecuted in a magistrate court or metropolitan court. Under New Mexico law, a petty misdemeanor is the very least serious crime for which a person can be sentenced to time in jail. The sentence for a petty misdemeanor in New Mexico can never be more than six months in jail or a fine up to $500, is usually up to 30 days in jail and a $100 fine or both, depending on the offense and the penalties can also be suspended by the court. In other words, the penalty for petty misdemeanor is akin to a first DWI conviction.
Notwithstanding being a criminal charge, actions to abate a nuisance are civil actions, not criminal, that must be filed in State District Court. New Mexico statutory law provides that any action for the abatement of a public nuisance shall be governed by the general rules of Civil Procedure.
(30-8-8, NMSA 1978 Abatement of a public nuisance.)
Under New Mexico law, “a civil action to abate a public nuisance may be brought, by verified complaint by any public officer or private citizen, in state district court of the county where the public nuisance exists, against any person, corporation or association of persons who shall create, perform or maintain a public nuisance.”
(30-8-8, B, NMSA 1978, Abatement of a public nuisance, emphasis added)
When a plaintiff prevails and proves that a nuisance exists and a judgment is given against a defendant in an action to abate a public nuisance, the district court can order the defendant responsible for the nuisance to pay all court costs and attorney fees for the plaintiff’s attorney.
(30-8-8, C, NMSA 1978, Abatement of a public nuisance, emphasis added)
A huge significance is that both public officials as well as private citizens can bring an action for nuisance abatement. Another major distinction is the burden of proof between a criminal charge and a civil cause of action. A criminal charge requires the state to prove a defendant is guilty “beyond a reasonable doubt”. A civil case requires proof by “preponderance of the evidence” by a plaintiff.
In general, with few exceptions, only law enforcement or state prosecutors can bring petty misdemeanor charges for public nuisance. However, any private citizen or public official, such as a District Attorney or City Attorney, or any lay person with money for the court filing fee, can initiate a civil nuisance abatement action for injunctive relief and if they prevail can be awarded attorney’s fees and costs.
AUTHORITY OF DISTRICT ATTORNEY CLEAR
The Bernalillo County District Attorney is considered the Chief law enforcement officer within Bernalillo County. The primary function of the District Attorney is to prosecute criminal charges, both felony and misdemeanor charges. In addition to the authority to prosecute criminal cases, the District Attorney also has authority under state law to seek injunctive relief for any public nuisance that poses and immediate threat to public health, safety and welfare.
The City of Albuquerque can also can seek injunctive relief to abate a nuisance and does it all the time, or at least did when the Safe City Strike Force existed, to declare substandard properties that are unfit to occupy a public nuisance and magnets for crime. The activities of the NMCG attending protests fully armed fall right within the definition of “public nuisance” as consisting:
“of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either … Injurious to public health, safety and welfare; or interferes with the exercise and enjoyment of public rights, including the right to use public property.” (30-8-1, NMSA 1978, Public Nuisance defined).
Further, under state law municipality may “sue or be sued … protect generally the property of its municipality and it inhabitants … [and] preserve peace and order within the municipality; …” (3-18-1 General Powers (of Municipality)”
COMMENTARY AND ANALYSIS
It is very disappointing that the City Attorney’s Office ostensibly does not have a real understanding or working knowledge and application of New Mexico law. No matter the “legal theory” being relied upon, the relief being sought is essentially for injunctive relief to abate a public nuisance and a Court Order declaring that the activities of the NMCG pose an immediate threat to the public heath safety and welfare and interfering with the exercise of public rights and doing so without lawful authority. That is a far cry from the right to bear arms. For that reason alone, the City could in fact seek and injunction against the NMCG based on the State’s and City’s law on Nuisance Abatement. The State and the City have some of the strongest nuisance abatement laws in the United States.
District Attorney Raul Torrez is commended for bringing his civil action against the NMCG in that they are indeed interfering with others constitutional rights of freedom of speech and association and interfering “with the exercise and enjoyment of public rights, including the right to use public property.” The actions of the NMCG are tantamount to vigilantism.
Although the District Attorney is empowered to bring the action, it is the City of Albuquerque and the Albuquerque Police Department who are affected the most by the NMCG and any citizens militia. Mayor Tim Keller all but acknowledged this fact when he told the NMCG militia to stay away and said:
“We’re just trying to send a clear signal that we never want vigilantes in our town. We never want firearms at protests. … And both of those things … have been a dangerous combination for our community that we don’t want to see.”
Why even have laws if you do not want to enforce them. Mayor Keller has an entire department of 33+ attorneys at his beckon call. Rather than just giving quotes of warning to citizen miltia’s, he needs to pick up a phone and give instructions to City Attorney Etaban Aguilar to take legal action. Further, Keller needs to order Chief Geier that APD should charge and if need be arrest miltia members of “creating, performing or maintaining” a nuisance under the criminal state statute if and when they show up to demonstrations. There can be no clearer message as when you sue someone’s ass or arrest them over their vigilante conduct. With that in mind, the City of Albuquerque and the City Attorney’s Office should move to intervene and assist the Bernalillo County District Attorney to secure injunctive relief against the New Mexico Civil Guard and file an action for nuisance abatement and secure injunctive relief.
People showing up to peaceful protests bearing long rifles or any other kind of firearm under the guise of protecting the general public, or for that matter themselves, and businesses from violence, vandalism and looting need to be called what they are: vigilantes. They are trying to take the law into their own hands and holding themselves out as law abiding citizens when they are not and likely having evil intent. They are “on the hunt” to be able to use their weaponry when they attend protests.
Citizen Militia’s need to be condemned in no uncertain terms. It needs to be made clear to them they have absolutely no business showing up armed to the hilt with assault weapons and wearing military fatigues to peaceful protests. Such conduct only intimidates and antagonizes people which is the real intent of such militias.
No doubt self-appointed “citizen militias” and their supporters will argue they have second amendment rights to bear arms. The argument is nothing but a rue and a convenient excuse to start trouble and open fire on people who they choose claiming self defense. .
EITHER BAN OR REGULATE CITIZEN MILITIAS
Citizen Militias are not regulated in the State of New Mexico and there is no comprehensive federal law that regulates them under the Second Amendment to the US Constitution.
Those who take it upon themselves to associate and bear arms calling themselves “citizen militias” take it to the extreme when they attend protests fully armed in military attire proclaiming they are there and can assume the responsibility law enforcement to protect people and property. Such attendance amounts to nothing but vigilantism.
As things continue to escalate with protests throughout the country and state, the State of New Mexico and the United State Congress need to enact legislation that defines what a “citizen miltia” is and either ban them entirely or regulate all citizens militias.
If the United States Congress, and for that matter New Mexico, does not ban citizen miltia’s. A Citizen’s Militia Registration Act needs to be enacted. Citizen militias need to be define along similar lines of how “gangs” are defined under federal criminal law.
A “citizens militia” could be defined as:
“An association of three or more individuals, whose members collectively identify themselves by adopting a group identity employing one or more of the following: a common name, slogan, identifying sign, symbol, flag, uniforms or military apparel or other physical identifying marking, style or color of clothing, whose purpose in part is to engage in the protection of private property and other people. A registered citizens militia may employ rules for joining and operating within the militia and members may meet on a recurring basis.”
A Citizen Militia Registration Act would require citizen militias to:
To allow only American Citizens to be members of a citizen militia.
Register with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) within the United States Department of Justice or in New Mexico with the New Mexico Homeland Security Office.
Require members to register their firearms with the ATFE or State.
Pay yearly regulation fees and firearm certification fees and carry liability insurance.
Identify all their members by name, address and contact information.
Prohibit felons from joining.
Limit their authority and powers so as to prevent militias to engage in law enforcement activities.
Require members to pass criminal background checks and psychological testing.
Mandate training and instructions on firearm use and safety.
Require all militias and its members to agree to follow all local, state and federal laws.
Failure to register as mandated would be a felony.
Until something is done with the enactment of citizen militia prohibition or regulation, citizen militias will be nothing more than vigilantes on the hunt using intimidation tactics to interfere with people’s first amendment rights as they attempt to assume law enforcement duties and responsibilities. We can also expect citizens militias to continue to pop up as Trump stokes citizens to act on their own.