The April 20 front page headlines of the Albuquerque Journal blared out:
“Members of New Mexico Civil Guard get $300K from city in settlement”
“ABQ settles lawsuits with NM Civil Guard filed in wake of 2020 Tigue Park Protest”
Below the headlines was a photo of two armed members of the New Mexico Civil Guard on their knees, one with his hands tied behind his back and the other with is hands and arms up over his head as two heavily armed APD Officers, likely SWAT, dressed in tactical gear were holding tactical weapons on the two men. The headlines and the photo were truly astonishing taken together. It turns out the headlines and the photo were very misleading as to civil rights violations, but nonetheless the story was very damaging to the city for what the $300,000 was paid for: violations of the New Mexico Inspection of Public Records Act!
The link to the quoted Journal article is here:
Six members of New Mexico Civil Guard, a private militia group, claimed their constitutional rights were violated when they were arrested after a protest turned violent at Tiguex Park in June 2020. The event that triggered the litigation was when members of New Mexico Civil Guard wearing camouflage suits and body armor brought sidearms and rifles to “keep the peace” at the June 15, 2020, protest at which organizers called for removal of the statue of Spanish conquistador Juan de Oñate. The members were not charged criminally but were detained for hours as Albuquerque police investigated a non-fatal shooting that occurred during a scuffle between protesters and people who opposed damaging the statue. A man not affiliated with the militia, Steven Ray Baca,was arrested on aggravated assault charges in the non-fatal shooting. He is set for a jury trial June 20.
Three separate federal civil rights lawsuits were filed by Devon Bay, John Burks, Daniel Espinosa, Craig Fitzgerald, Joel Mason and David Rice. They were represented by former New Mexico Supreme Court Justice Paul Kennedy. According to the Journal story, their federal civil rights lawsuit maintained that after the shooting, militia members were arrested and forcibly detained in handcuffs for hours without probable cause. Police were accused of using excessive force and causing serious injuries to the militia members while they were detained. The lawsuit alleged that prior to the June 2020 protests, officials in the Albuquerque Police Department including then Deputy Chief of Field Services Harold Medina, Mayor Tim Keller and his then Chief Administrative Officer Sarita Nair targeted the militia members for arrest.
FEDERAL COURT RULES NO VIOLATION OF CIVIL RIGHTS
The federal lawsuits were assigned to United States District Judge Kea Riggs of Albuquerque. Last November, Judge Riggs ruled and found that the arrest of the 6 militia members did not violate their civil rights and that excessive force was not used by APD. U.S. District Judge Kea Riggs wrote in part:
“Mr. Baca fired multiple shots, creating an unsafe situation for both officers and bystanders. … Because the plaintiffs were armed, the circumstances warranted officers to zip tie or handcuff the plaintiffs and secure their weapons.”
Judge Kea Riggs ruled against the militia members on all but one claim of municipal liability, which was still outstanding at the time of settlement. She also found no proof that Mayor Tim Keller, CAO Sarita Nair nor Deputy Chief Harold Medina were involved in the decision to arrest or take the militia members into custody or created a policy to cause them “constitutional harm.”
INJUNCTION SECURED AGAINST NEW MEXICO CIVIL GUARD
After the Tiguex Park protest, then 2nd Judicial District Attorney Raúl Torrez, who was elected Attorney General in November, filed a lawsuit alleging the presence of the heavily armed group helped incite the non-fatal shooting at the protest and violated New Mexico law. Torrez succeeded in obtaining an injunction barring the New Mexico Civil Guard from organizing or operating in public as part of a military unit that isn’t activated by the governor of New Mexico, and from assuming law enforcement functions by projecting the ability to use organized force at protests and public gatherings.
NEW MEXICO INSPECTION OF PUBLIC RECORDS ACT
Under the New Mexico Inspection of Public Records Act, “every person has a right to inspect public records”. A requester of public records can seek damages and attorney’s fees if the responsive documents aren’t produced by a governmental agency in compliance with state law. Under the IPRA records maintained by the government, including phone records and police offense reports are a matter of public record and can be reviewed.
The Inspection of Public Records Act provides in part:
A custodian receiving a written inspection of public records request shall permit the inspection immediately or as soon as is practicable under the circumstances, but not later than 15 days after receiving a written request. If the inspection is not permitted within 3 business days, the custodian shall explain in writing when the records will be available for inspection or when the public body will respond to the request.
The Inspection of Public Records Act also provides for the award of damages for failure to provide inspection of documents:
“A custodian who does not deliver or mail a written explanation of denial within fifteen days after receipt of a written request for inspection is subject to an action to enforce the provisions of the Inspection of Public Records Act and the requester may be awarded damages. Damages shall:
(1) be awarded if the failure to provide a timely explanation of denial is determined to be unreasonable;
(2) not exceed one hundred dollars ($100) per day;
(3) accrue from the day the public body is in noncompliance until a written denial is issued; and
(4) be payable from the funds of the public body”
There are 7 broad exemptions under the IPRA, including one governing law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime, and one dealing tactical response plans or procedures, but those exemptions can be overcome by redacting the sensitive information.
A link to the Attorney General IPRA compliance guide is here:
INSPECTION OF PUBLIC RECORDS ACT REQUESTS
While the 3 federal lawsuits were pending and before the federal courts rulings that there were no violations of civil rights, the Plaintiff members of the New Mexico Civil Guard filed Inspection of Public Records Act (IPRA) requests seeking release of records of all “non-personal calls”, including text messages, on Mayor Tim Keller’s personal cellphone for the month of June 2020. The city in turn hired a private law firm to represent Keller and to fight the release of the cell phone records maintaining that disclosure of “personal communication records” was “outside any possible relevance” to the IPRA request.
In their first IPRA case, militia members sought records relating to APD’s preparation for and response to the demonstration. As quoted, under IPRA, records are required to be produced in 15 days, unless a specific exemption applies. Four months passed before the City Clerk’s office produced 2 redacted documents. One was a heavily redacted “Operation Plan” and one was an “Event Action Plan.” The city claimed the redactions in the “Operation Plan” were proper to protect the identities of undercover officers.
To settle the IPRA request litigation, State District Judge Joshua Allison last fall reviewed a copy of the redacted “Operation Plan” provided to him by the city and found it contained “substantially fewer redactions” than the redacted version provided to the militia members who filed suit. The city subsequently withdrew its exemption claim and provided the plan with only one redaction Judge Allison found appropriate.
The second IPRA lawsuit claimed the city violated the law in failing to adequately respond to a request for cellphone records of Keller, Nair and then-Deputy Chief Medina. City Clerk Ethan Watson contended the COVID-19 pandemic impacted the ability of his office to efficiently handle IPRA requests.
The city agreed to settle for $300,000 the federal civil rights lawsuit filed by the New Mexico Civil Guard as well as two other lawsuits alleging the city failed to turn over public records about the incident in violation of the state Inspection of Public Records Act.
City Attorney Lauren Keefe said in a statement on the city decided to settle all three lawsuits to avoid the risk of incurring any further expense, including the costs of a likely appeal. Keefe said this:
“The settlement amount is largely reflective of the City’s potential liability related to the public records requests.”
The city also revealed it paid $17,000 to hire Santa Fe lawyer Kate Ferlic to represent Mayor Keller after the militia group members made multiple requests for his personal cellphone records.
BIG BUCKS FOR NOT RELEASING PUBLIC DOCUMENTS
With the $300,000 now reported paid to the New Mexico Civil Guard for IPRA violations, the city has now paid out $630,000 over the last two years for IPRA violations and not releasing documents in a timely manner. It turns out cities, small towns and school districts across the state are paying out hundreds of thousands of dollars of taxpayer money because a court says they aren’t following the law. Other large payouts over the past few years include Albuquerque Public Schools which had to pay out $600,000 and the city of Jal paid $400,000.
On April 13, KOAT TV Targe 7 reported in part as follows:
“Government agencies across the state are being sued, accused of not following the state’s Inspection of Public Records Act. By law, with some exceptions, it means that government has to turn over most documents to anyone who asks for it. If they don’t, and a judge decides they violated the law, the government has to pay out $100 for every day they did not release the record. The City of Albuquerque has paid out more than $330,000 in past two years[for IPRA violations].
Shannon Kunkel, executive director of the New Mexico Foundation for Open Government said this:
“It’s pretty unbelievable. I mean, these are taxpayer dollars,” said “The public is entitled to these records and we’re squandering away money fighting lawsuits that aren’t going to be won. … It is the state statute that guarantees that the public has access to government records and records could be things like emails, text messages, video photographs.”
“(IPRA) is my favorite four-letter word,” said attorney Tom Grover, who has sued the city of Albuquerque seven times for not following IPRA. “Transparency comes hand-in-hand with legitimacy. And that’s what IPRA was all about.”
Grover’s clients — mostly APD officers suing the department — have won more than $266,000.
About a year ago, the city of Albuquerque paid out one of Grover’s clients, former officer Jeremy Dear, $85,000. He was the officer who shot and killed 19-year-old Mary Hawkes. The city said he was fired because he did not repeatedly turn on his lapel camera. He wanted copies of memos and emails about an investigation into his work.
Grover said this:
“What happens is the city fails to provide the documents, and by and large, these are these are garden variety documents. These aren’t anything, you know, discreet or sublime or regular course of business documents.”
Other people who have sued over allegations of violating the state open records law–include the media. An Albuquerque parent won $40,000 dollars because APS wouldn’t turn over enrollment numbers during the pandemic.
Another man, who was arrested at a protest after he showed up with a rifle, won $20,000 because the city wouldn’t turn over police reports. The District Attorney’s Office dropped charges against him.
Paul Gessing of the taxpayer watch group Rio Grande foundation sued to try to get emails about how mayor Tim Keller was using the city website to push people to vote for a controversial Democracy Dollars.
That program would have given every Albuquerque voter a $25 coupon to spend to support a politician running for office.
By the time Gessing won the IPRA suit election was over. Democracy dollars failed. Gessing said this:
“So, we figure we got this payout and it was to the benefit of my organization and the attorneys. … I wish we could have done more to actually influence future policy decisions by this and other administrations.”
Albuquerque City Clerk Ethan Watson is responsible for making sure documents releasable by law are released. It was just two years ago – when the New Mexico Foundation for Open Government gave him their highest honor as being one of the most transparent in government.
When KOAT asked for an interview, Watson sent us this statement saying:
“The City received over 22,474 requests for public records between January 1, 2020 and today. This is likely more than any other public body in New Mexico. The volume of requests has been increasing annually at a rate of between ten and thirty percent per year. In addition, during COVID, it became more difficult to process requests. Our staff has been working overtime to address this increased volume and we have also brought on temporary employees during this time period. The administration has requested two additional positions for the Clerk’s Office for next fiscal year to assist us in addressing this significant growth in public records requests.”
The link to view the entire content of the KOAT 7 report is here:
COMMENTARY AND ANALYSIS
The city paying out a $300,000 settlement to a citizens militia group for IPRA violations falls squarely into the category “When the hell will they ever learn?” The New Mexico Inspection of Public Records Act (IPRA) has been around for decades and the New Mexico Attorney General goes so far as to advise public agencies how it works and how it is enforced. Keller himself as a former State Senator and State Auditor likely knows full well how the IPRA law works.
It is difficult to understand why the city felt it was necessary to hire a private attorney to represent Mayor Tim Keller to the tune of $17,000 to defend him on cell phone records. It’s likely the cell phone records would reveal very little on the days leading up to and including the protest, unless of course private calls were being made to people that would prove embarrassing to Keller. What was also embarrassing is State District Judge Joshua Allison reviewing a copy of the redacted “Operation Plan” provided to him by the city and found it contained “substantially fewer redactions” than the redacted version provided to the militia members who filed suit.
The bottom line is City Attorney Lauren Keefe’s explanation as to why the city would settle and pay $300,000 to as citizens militia group was embarrassing and the city’s conduct of not adhering to the Inspection of Public Records Act was inexcusable