On Monday, July 14, 2020, 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 authority. The lawsuit was filed against the New Mexico Civil Guard and 14 of its members who “include some individuals associated with white supremacist and neo-Confederate organizations.” The legal action was filed after militia members took it upon themselves to protect a city-owned statue that depicted Spanish conquistador Juan de Oñate during a June 15, 2020 protest.
Georgetown Law’s Institute for Constitutional Advocacy and Protection is assisting with the lawsuit. It called the lawsuit the nation’s first civil suit by a district attorney to protect the public from paramilitary forces.
JUNE 15, 2020 PROTEST
During the June 15, 2020 protest, 5 to 6 heavily armed New Mexico Civil Guard members, some dressed in military camouflage, attended and tried 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. Steven Ray Baca was not a member of the New Mexico Civil Guard. The shot protester was rushed to the hospital and was listed in critical but stable condition and eventually released.
The shooting and violence resulted in the City taking the single figure of Onate in the sculpture grouping down. On June 16, the Albuquerque Police Department released a photo of the 13 guns and 34 magazines taken from militia members at the. 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).
The lawsuit argues that the New Mexico Constitution says civilian militias can only be activated by the governor and alleges the New Mexico Civil Guard is acting like law enforcement. According to the lawsuit, the New Mexico Civil Guard 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 that membership includes people associated with white supremacist and neo-Confederate ideology. According to the lawsuit:
“[NMCG 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 federal civil complaint makes specific allegations that are alarming as to the actions of the New Mexico Civil Guard. Paragraphs 2, 4, 5, 7 and 8 of the complaint are succinct and outlines the “New Mexico Civil Guard” activities and what they are all about:
“2. The so-called “New Mexico Civil Guard” (NMCG) is not an organized police force or an organized part of the military. Nor is it affiliated with or overseen by the Government. Yet this group formed for the claimed purpose of maintaining the peace and both fashions itself and pretends to function as a part of the state military. 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 to address matters of public concern. NMCG’s attempt to operate as a private police or military unit in Bernalillo County is a per se public nuisance that must be abated to protect public safety, allow the free and open use of public forums, and minimize violent armed confrontations.
5. NMCG has unlawfully exercised and intends to continue to unlawfully exercise the power to maintain public peace reserved to peace officers. NMCG’s membership is not composed of peace officers, and New Mexico law clearly provides that NMCG and its members have no civil or military authority to maintain the public peace.”
“7. This is a case about paramilitary action that threatens public safety and intimidates the public’s exercise of First Amendment rights. It is not a case about gun ownership, gun possession, or self-protection. Importantly, NMCG’s paramilitary activity is not protected by the Second Amendment, and the relief that the State seeks does not run afoul of Defendants’ Second Amendment rights. … .
“8. Nor is this a case about political viewpoints. To the extent NMCG has certain white supremacist ties, their viewpoint heightens the risk of violence at certain public events because of the antipathy they hold for particular groups of protesters. But the threat posed to public safety by paramilitary actions at public demonstrations or gatherings exists regardless of the paramilitary organization’s underlying ideology. Put simply, there is no place in an ordered civil society for private armed groups that seek to impose their collective will on the people in place of the police or the military. … .”
The link to the civil complaint filed is here:
The lawsuit is asking the court to bar the group from acting as an “unlawful military unit” and patrolling New Mexico streets on its own.
In the response to the District Attorney’s lawsuit, the group’s members contend they have a common-law right to keep the peace, carry weapons and assemble under the First Amendment to the United States Constitution.
A link to a related blog article is here:
MAKING A MOCKERY OF PROCEEDINGS
The Bernalillo County District Attorney’s Office’s in an attempt to force the New Mexico Civil Guard to turn over records about its membership and activities scheduled the taking of the deposition Bryce Leroy Spangler Provance the former head of the New Mexico Civil Guard. Provance, a convicted felon, founded the group and was designated as its representative to appear for the deposition and answer relevant questions despite having been kicked out of the the group. The deposition was videoed taped.
Criminal defense attorney Paul Kennedy was present representing Provance. Kennedy is a former state Supreme Court justice, a well know political operative within the Republican Party who also represented Governor Suzana Martinez from time to time and Republican strategist Jay McClusky who is now running Mark Ronchetti’s campaign for Governor.
The deposition was taken on March 3, 2022. The deposition lasted a mere 12 minutes which was enough time for Province to made a mockery of the proceeding but also for him to give the District Attorney enough to seek a judgment against the group in the case.
The link to review the full 12-minute deposition is here:
The deposition of Province was taken by Attorney Mark Baker. Following are relevant portions of the deposition.
ATTORNEY MARK BAKER: “Say your full name and spell your last name for the record.”
PROVANCE: “No comment.”
ATTORNEY MARK BAKER: “You’re declining to identify yourself on the record?”
ATTORNEY MARK BAKER: “On what basis?”
PROVANCE: “Fifth Amendment right.”
EDITOR’S NOTE: Provance took from his coat a copy of the Declaration of Independence, the cover of a book by Arizona conspiracy theorist Milton William Cooper, and a piece of folded brown paper. Provance refused to describe the collection papers as anything more than “personal documents. When Baker asked to see the 3 items, all were marked as exhibits to the deposition and Baker asked questions on all 3.
ATTORNEY MARK BAKER: “So one is a torn piece of what looks like maybe a paper bag and has a picture of what looks like the devil and Georgetown Law and people inside in flames. Is that right?”
PROVANCE: “No. The devil’s in flames.”
EDITOR’S NOTE: The second drawing depicted Provance in a sexual act with a character labeled “Your Mom.”
Attorney Mark Baker: “What relevance does this have to the deposition today?”
Provance: “It was to make me smile when I had to look at you.”
DA Torrez and attorney Mark Baker have been seeking documents that show the membership, history and organization of the group. During the deposition, Provance claimed he destroyed all such evidence in a fit of anger after he and the group parted ways, but before he’d learned of an order to preserve the material for potential legal action. Provance testified:
“[I] shredded and burned all membership files. I shredded and burned anything regarding the structure of the New Mexico Civil Guard. I also poured bleach on the hard drive from my laptop and then burned it. … [I felt] bad after getting removed from the militia group, so I disconnected from the world, and I actually lived in a camper for a while. … And since I was the last individual, I reckon, to be served with this lawsuit, I did not know about the provisions to retain any of the documentation. ”
At one point, Provovince insisted that all of his answers to questions asked would be “no comment”.
After refusing to answer several more questions, Provance removed his microphone and walked out.
PLEADING THE 5TH
Provance brought to the deposition a copy of portions of the Declaration of Independence, but wouldn’t comment about it citing his 5th Amendment right against self-incrimination. Baker asked whether he thought that identifying the Declaration of Independence would incriminate him, or “pose the possibility of incriminating you?” Provance responded “No comment.”
During the deposition Provance said he was “a free man under the Constitution,” and as the founder of the militia organization retained all its documents. Provance said that after he was forced from the group, he destroyed all documentation, shredded and burned all the membership files and those related to the structure of the guard.
After 12 minutes of questioning, Provance got up and abruptly left and as he was leaving said “Have a lovely day.” Ostensibly,criminal defense attorney Paul Kennedy had no problem with his client abruptly cutting short the deposition in that he did not instruct his client to stay nor did he ever instruct Province to answer questions asked.
“BEHOLD A PALE HORSE”
During the videotaped deposition, Provance provided the DA’s attorney with a torn piece of paper that looked like the cover of the book, “Behold a Pale Horse” a book written by William Cooper and published in 1991.
During the deposition, attorney Backer asked “What is the subject matter of the book?” to which Provance replied “No comment.” Baker asked “Based on what?” and Provance replied “Fifth Amendment right. ”
Cooper was killed in in 2001 in a burst of gunfire outside his hilltop home in eastern Arizona. Cooper was a radio host who had attracted a rabid following among UFO buffs, prisoners and the militia movement. For them, the book “Behold a Pale Horse,” and Cooper’s nightly shortwave radio show lifted the veil on how the world actually works.
Through his death in 2001, Cooper became a legend and his book has become a defining text for conspiracy-minded people and Qnon enthusiasts.
SUING FACEBOOK TO GET RECORDS
Over the past year, DA Torrez has sought information about the guard, its members and its activities, going so far as California and to FACEBOOK to get records. On November 15, 2021, it was reported that Torrez filed a petition with a California Superior Court judge asking to force FACEBOOK to comply with a subpoena from his office that seeks information regarding accounts set up by the right-wing militia group and its members. Torrez said militia members used Facebook to recruit, organize and direct members in addition to telling them where to meet and how to prepare themselves ahead of protests.
At news conference on November 15, Torrez reported that FACEBOOK took down pages associated with the Civil Guard because the accounts violated Facebook’s own policies regarding dangerous individuals and organizations. Torrez added FACEBOOK has refused to provide information he seeks about who set up and controlled the accounts.
Torrez wrote in a news statement:
“FACEBOOK is asking Congress and the American people to trust it to regulate extremist content on its platform and yet refuses to turn over basic account information about an identified extremist group that used that same platform to recruit, organize and direct its members to engage in unlawful activity.”
MOTION FOR DEFAULT JUDGMENT
Provance was so combative and uncooperative during the deposition that on April 12, District Attorney Torrez filed a motion for a default judgment against the New Mexico Civil Guard. The motion asks the State District Court Judge to enter and order for a default judgment against the Civil Guard seeking to have the New Mexico Civil Guard, its members and its organizers to be permanently barred from organizing any militia group that would engage in unlawful policing or paramilitary activity. Such a decision would end the suit and effectively bar the group from acting as it has in the past.
The motion states in part:
“Provance’s spectacle … was just the culmination of NMCG record of obstruction. … NMCG has repeatedly flouted its discovery obligations. … [The destroyed documents could have] borne on the state’s allegations that NMCG organized itself as an unlawful military unit whose members falsely assumed law enforcement functions.”
The motion also asks the District Court Judge to award sanctions, costs and attorney’s fees in the case.
Torrez for his part had this to say:
“We didn’t get very far in that deposition. It was pretty extraordinary. … The real goal in all of this is to stop armed extremists from organizing, recruiting, and directing their members to engage in activity that is exclusively reserved for the police or in extraordinary circumstances, the National Guard. … [The motion is] s a pretty extreme outcome, I will say, but it’s warranted under the circumstances, given the extreme conduct that was demonstrated.”
Torrez noted that the group has repeatedly thumbed its nose at the legal process as the suit moves forward. He also noted the irony that the Civil Guard refused to respect the laws it claimed to uphold under the United States Constitution.
The links to quoted news sources are here:
NEW MEXICO CIVIL GUARD FILES A FEDERAL LAWSUIT AGAINST THE CITY
On September 9, 2021, 8 members of the New Mexico Civil Guard (NMCG) filed a federal lawsuit against the City of Albuquerque and the Albuquerque Police Department (APD). The lawsuit claims the 8 were “targeted” by APD when they showed up on June 15, 2020 at the protest over the “La Jornada” (The Journey) sculpture in front of the Albuquerque Museum. The protest was for the removal of the figures of Juan de Onate de Salazar in the sculpture.
According to a federal lawsuit, the citizens militia group claim city officials targeted them for no reason. The lawsuit alleges that the city was aware the militia group was going to be there and APD positioned officers near the protest waiting until a Civil Guard member “committed a crime and planned to then arrest them.” The plaintiffs alleged they did nothing wrong and were detained anyway by APD.
The Civil Guard members allege one of them was attacked at the protest and at that point all the civil guard left the crowd. According to the complaint, after they had moved away, 31-year-old Steven Baca pulled a concealed handgun and started shooting, hitting one man. When the shooting began, the guard members returned and ran toward Baca and upon encountering him, one militia member stepped on the gun or “kicked his gun away”.
The lawsuit alleges that even though police knew the group wasn’t associated with Baca, they “arrested” the plaintiffs anyway, held them for hours for questioning, not allowing them to talk to lawyers or even use the restroom . They were eventually released after interviews.
EDITOR’S NOTE:The allegation that they were arrested is false. No militia member was arrested but they were held for questioning and then released.
At the time of the incident, Bernalillo County District Attorney Raul Torrez said that the militia members had a right to be at the protest and bear arms. However, the DA made it clear they did not have the right to intervene as “enforcers of the law”. The DA later filed the civil complaint seeking an injunction to prohibit the Civil Guard from acting in any police or military capacity and to declare the group a “nuisance” posing an immediate threat.
A link to the complete news report is here:
ONLY CERTIFIED LAW ENFORCEMENT AUTHORIZED “TO KEEP THE PEACE”
The New Mexico statutory law is very clear as to the definition of a “peace officer”. The law is also very clear that only peace officers are authorized to maintain the peace and make arrests. The New Mexico Civil Guard are not law enforcement and have likely violated the laws with their actions that govern peace officers
It is § 30-1-12(C) (1963) of the New Mexico statutes that defines a peace officer as anyone who is elected or appointed and who is:
“vested by law with a duty to maintain public order or to make arrests for crime.”
Under §29-1-9 (2006) of the New Mexico statutes the duties, responsibilities and authority to lawfully maintain the peace are expressly reserved to peace officers. The statute provides:
“[N]o person shall assume or exercise the functions, powers, duties and privileges incident and belonging to the office of special deputy sheriff, marshal, policeman or other peace officer without first having received an appointment in writing from a person authorized by law to appoint special deputy sheriffs, marshals, policemen or other peace officers . . . .”
Section §30-27-2.1 of the New Mexico statutes also defines what a police officer is, what impersonating a police officer is and it illegal for anyone to impersonate a peace officer. The statute provides:
… [A] “peace officer” means any public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes.
Impersonating a peace officer consists of:
(1) without due authority exercising or attempting to exercise the functions of a peace officer; or
(2) pretending to be a peace officer with the intent to deceive another person.
… Whoever commits impersonating a peace officer is guilty of a misdemeanor. Upon a second or subsequent conviction, the offender is guilty of a fourth-degree felony.
NEW MEXICO LAW ENFORCMENT HEAVILY REGUALTED
Much like doctors, lawyers, and teachers, law enforcement in New Mexico is heavily regulated profession. There are minimum qualification and training requirements for all state certified law enforcement. It is the Law Enforcement Training Act that creates the law-enforcement academy to provide a planned program of basic law enforcement training and in-service law enforcement training for police officers.
The academy requires minimum training requirements for certification, and requirements for continuing training “to constantly upgrade law enforcement within the state.” (NMSA 1978, §§ 29-7-1 to – 15, passed in 1969, and amended through 2020). The statute provides for suspension and revocation of law-enforcement certification based on dishonesty or fraud, the commission of a felony, or violations of law involving moral turpitude. (§ 29-7-13,) NMSA 1978. During the 2020 legislative session, the New Mexico Legislature amended the Act to require revocation of law-enforcement certification for crimes involving the use or threatened use of force. ( NMSA 1978, § 29-7-15)
NEW MEXICO MILITARY HEAVILY REGUALTED
The New Mexico Civil Guard is not military and are not authorized under the law to use military force. The New Mexico Civil Guard is likely violating the laws that govern government militias, the National Guard and the New Mexico state defense force.
Under New Mexico statutory law, entities that are authorized to use military force on the State’s behalf are collectively known as the “militia”. It is Section 20-2-1 of the New Mexico Statues that outlines 3 distinct components of the militias:
A. “Militia” means all the military forces of this state, organized and unorganized, whether active or inactive; but excludes the regularly organized police forces of the state or its political subdivisions and excludes the civil air patrol division.
B. “National guard” means the New Mexico army national guard and the New Mexico air national guard. The national guard is federally recognized and has a dual state and federal character and mission. When used in Chapter 20 NMSA 1978 national guard shall refer to the national guard of New Mexico unless otherwise stated.
C. “New Mexico state defense force” means that part of the militia of the state which is not federally recognized. It is exclusively a state entity. Its standing cadre is a component of the organized militia; its ranks are filled upon order of the governor from the unorganized militia. When used in Chapter 20 NMSA 1978, state defense force shall refer to the New Mexico state defense force.
Note that 20-2-1 section A makes it clear that militia does not include organized police forces of the state, counties and municipalities all which are separate political subdivisions. Note also that the New Mexico National Guard is federally recognized and can be called or ordered into active federal service ostensibly by the United States Defense Department or order of the President. The State Defense Force is “exclusively a state entity and not federally recognized as is the National Guard. The ranks of the State Defense Force can be filled by the unorganized militia only by order of the Governor. Absent activation into the State Defense Force by the Governor, any unorganized militia lacks authority to operate as a military force.
FUNCTIONS OF NM NATIONAL GUARD AND STATE DEFENSE FORCE
It is not the function of the National Guard nor the State Defense Force to exercise the powers and duties of peace officers. It is New Mexico statutes § 20-2-3, dealing with Military Affairs, that designates the Governor as only one who has the power to call out the national guard and the militia and the statute outlines those instances.
§ 20-2-3 provides:
“A. The governor may, in case of insurrection, invasion, riot or breach of the peace or of imminent danger thereof or in case of other emergency, order into active service of the state the militia or any components or parts thereof that have not been called into federal service. As used in this section, “emergency” includes any man-made or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requiring the resources of the state.
B. The governor may also order any member of the national guard to active state service … for the following reasons:
(1) to protect critical infrastructure in the state from a cybersecurity threat or security vulnerability;
(2) to protect an information system owned or operated by the state from a cybersecurity threat or security vulnerability;
(3) to protect information that is stored on, processed by or transiting on an information system owned or operated by the state from a cybersecurity threat or security vulnerability; or
(4) to identify the source of a cybersecurity threat.
C. A member of the national guard called to active service pursuant to … t Subsection B … shall not have any police powers or arrest authority. … .
D. In case of any breach of the peace, tumult, riot or resistance to process of this state or imminent danger thereof, the sheriff of a county may call for aid from the governor as commander-in-chief of the national guard. If it appears to the governor that the power of the county is insufficient to enable the sheriff to preserve the peace and protect the lives and property of the peaceful residents of the county or to overcome the resistance to process of this state, the governor shall, on application of the sheriff, order out such military force as is necessary.
E. When any portion of the militia is called out for the purpose of suppressing an unlawful or riotous assembly, the commander of the troops shall cooperate with the civil officers to the fullest extent consistent with the accomplishment of the object for which the troops were called. … .
F. When any portion of the militia is ordered into active service pursuant to this section in case of an emergency, the militia may provide those resources and services necessary to avoid or minimize economic or physical harm until a situation becomes stabilized and again under local self-support and control, including the provision, on a temporary, emergency basis, for lodging, sheltering, health care, food and any transportation or shipping necessary to protect lives or public property; or for any other action necessary to protect the public health, safety and welfare.
G. … .
ORGANIZED AND UNORGANIZED MILITIAS DEFINED UNDER NEW MEXICO LAW
It is §20-2-2 of the New Mexico statutes that defines “organized and unorganized militias” as follows:
“The militia is composed of the organized and the unorganized militia.
A.The organized militia is the national guard and the standing cadre of the state defense force and such parts of the unorganized militia when and as may be activated, enrolled or enlisted into the national guard or into the state defense force.
B. The unorganized militia is comprised of all able-bodied male citizens of the state and all other able-bodied males who have or shall have declared their intentions to become citizens of the United States and are residents of the state who are not less than 18 or more than 45 years of age, but who shall not be more than 64 years of age if they shall have earlier served in or retired from the national guard; subject to … [specific] listed exceptions … .
COMMENTARY AND ANALYSIS
The efforts of Bernalillo County District Attorney suing the New Mexico Civil Guard are to be commended. The reality is, the one lawsuit only affects one civilian militia group in the State when there are likely far more. Further, there is nothing that will prevent such militias from forming in the future nor prevent such citizen militias from other states to come to New Mexico. Citizen Militias are not regulated in the State of New Mexico. For these reasons the New Mexico legislature should enact a state law outlawing or regulating citizens militias in the state.
The State of New Mexico should enact legislation that defines with more particularity what a “citizen miltia” is and either ban them entirely or regulate all citizens militias. If New Mexico does not ban citizen militia’s outright, a Citizen’s Militia Registration Act could be enacted. Citizen militias need to be defined along similar lines of how “gangs” are defined under federal criminal law.
A “citizens militia” needs to 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:
Register with the New Mexico Homeland Security Office and the New Mexico State Police.
Allow only American Citizens to be members of a citizen militia.
Require members to register their firearms with the 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 and apply for permits to attend functions sponsored by others.
Failure to register as mandated would be a felony.
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 to assume the responsibility law enforcement to protect people and property. Such attendance amounts to nothing but vigilantism. The state can and should act to ban citizen militias or enact legislation to regulate them before someone gets seriously hurt or killed.