Progressive Democrat Pete Dinelli Interviewed By Conservative Rio Grande Foundation Paul Gessing On The Topic “Homeless Policy And Issues”; Links to Related Blog Articles

On September 19, 2023, I appeared and was interviewed for 40 minutes by Paul Gessing with the Rio Grande Foundation on his weekly program known as “Tipping Points New Mexico”. The topic of discussion was “Homeless Policy And Issues.”

The Rio Grande Foundation is conservative leaning.  I have been a Democrat all of my life and I am a Progressive Democrat. I have known Paul Guessing for at least 25 years.  During that time we have had spirited discussions on various issues, but this was the first time I have ever appeared on his program.

Over the last 6 years, I have researched, authored and published on my blog www.PeteDinelli.com many blog articles on the topic of the unhoused which was the reason Paul Guessing invited me to appear on his program.  Because of the allotted time, we were only able to touch on in general terms the city’s homeless crisis, what  Mayor Keller Tim Keller and his administration and the Albuquerque Police Department are doing and what the city is spending to assist the unhoused.  Below are links to two blog articles that go into greater detail on homeless policy and issues.

I do hope you have the time to listen and find the program informative.

Below are links to two blog articles that go into greater detail

Many thanks to Paul for having me on his program and having the discussion.

The link to the Youtube interview is here:

https://www.youtube.com/watch?v=3punm9fU798

The link to the audio file:

https://tippingpointnm.com/audio/543-pete-dinelli-homeless-policy-and-issues/

The links to the two related Dinelli blog articles on the unhoused are here:

Mayor Tim Keller’s Shotgun “All the Above Approach” To Homeless Crisis: Millions For Services, Shelters, Housing, Zoning Amendments; “HOUSING FORWARD ABQ” Plan Based On False Presumptions;  WTBON Demands City Audit And Investigation Of Family Community Services Misuse Of HUD Funding  

Judge Enjoins City From “Enforcing Or Threatening To Enforce” Laws Against Homeless To Displace Them From Public Spaces, Seizing And Destroying Homeless Belongings Without Warrant, Mandates Post-Deprivation Hearings; Injunction Usurps And Interferes With City’s Legitimate Enforcement Of Public Safety Laws; City Will And Should Appeal; County Sheriff Should Start Arresting And DA Should Start Prosecuting

Private Sector Threatens APD With Class Action Lawsuit For Failure Enforce Low Level Crimes;  APD Not Private Security Company But Public Shaming Businesses To Act Gets APD No Where; Civil Nuisance Abatement Laws Should Be Utilized With Intervention Agreements As DA Prosecutes Shoplifting Cases

On August 4, 2023, APD Chief Harold Medina gave a public warning to the Walgreen’s chain stores about the extent of crime occurring at Walgreens stores. According to the on-line source Good RX, there are a total of 32 Walgreen Stores in the Albuquerque Metro area.

Medina said this:

“Walgreens has to take ownership for their store, for their product, and they have to develop [a] process which helps ensure that their alcohol is not being stolen and is not compounding to a community issue or problems surrounding their locations.”

MEDINA’S LETTER TO WALLGREENS

It was reported that on August 14, 2023 that Chief Medina sent a letter to Walgreen’s making recommendations for all of its retail stores  in an effort to reduce crime at their store locations.  Medina’s letter was written and sent following the death of 23-year-old Sydney Wilson, who was shot and killed in a parking lot after she saw her stolen vehicle.

On July 31 a group of teens were stealing liquor from a Walgreens, then allegedly stole the car from 23-year-old Sydney Wilson and Wilson was able to locate her car at the Smith’s on Coors and Central the same day. APD released video showing the teens allegedly stealing alcohol before the shooting.  Wilson had tracked her car down with the GPS on her phone and approached it. Police said the teens crashed the car after she confronted them, and they tried to flee on foot. When she approached the vehicle, witnesses told police that 13-year-old Marcos Barela pulled out a gun and shot her.  He’s now charged with murder.

Chief Medina expressed concerns about shoplifting and theft rates remaining “high and unmitigated” at the Walgreen’s locations. He also said he’s concerned about alcohol theft, given the external threat he says it poses to the community. Medina wrote Walgreens:

“The focus of my concern is that rampant and repeated shoplifting invariably attracts criminals who commit other crimes … This behavior is dangerous, not only because of the threat serial shoplifting poses to the safety of the community, but also due to the dangers associated with alcohol use and crime.”

Medina in his letter said that the Walgreens stores that sell alcohol have the worst issues. In support of the allegation, APD released a video showing thieves calmly stealing dozens of bottles of liquor from a northeast Albuquerque Walgreens in July. APD arrested 3 men for the alleged July 11 theft. One of the men, Brian Singer, was released from jail the next day. On July 17, police found Singer with a gunshot wound while responding to a shooting in the area of Kentucky and Acoma in southeast Albuquerque. Paramedics took Singer to the hospital. Doctors put him on life support on July 26 and he died nine days later.

According to the letter, since January 2022, APD has responded to 1,000 calls for service at just five Walgreens along the Central Avenue corridor. He said the location on Eubank has seen a 20% increase in calls for service in the last six months. In the letter, Medina said these calls for service alone cost taxpayers $125,000. A review of police response calls at the Walgreens store near Central Avenue and Eubank Boulevard revealed there were 13 calls made for fights and assaults, two shootings and two thefts, along with dozens of disturbances.

MEDINA’S RECOMMENDATIONS TO WALLGREENS

In his August 14 letter Chief Medina called on the chain store to take action to deal with the theft of alcohol its stores. The suggestions were:

  1. Modifying the layout of Walgreens’ liquor departments so patrons would have limited access to alcohol and would order items and an employee would fulfill the order
  2. Limit the time in which alcohol sales occur, which would deter shoplifters from entering the store if they know alcohol is not being sold.
  3. Hire level-three security guards at their stores, which are state-certified security officers who have the ability to carry a firearm but cannot make arrests. This would be particularly important to deter underage individuals from attempting to steal alcohol.
  4. Walgreens should connect its cameras to APD’s Real Time Crime Centers, so law enforcement can get surveillance video easier.
  5. Walgreens should implement a policy where employees would have to report shoplifting and alcohol theft to APD.

Chief Medina wrote in his letter:

“Implementing these suggestions and strategies will be a win for our community. … Strong anti-shoplifting measures will make it harder for shoplifters to steal, while collaboratively building evidence-based prosecutions will send the clear message that retail theft is a serious crime worthy of the imposition of serious consequences.”

During a press conference discussing his letter, Medina  said this:

“One of the big recommendations we’re going to make is that Walgreens finds a way to secure their alcoholic products and that they ensure that they have safeguards in place so that people cannot simply grab alcohol, walk out of the store and get in a vehicle and continue. … We’re going to continue to hopefully work with Walgreens, communicate with Walgreens, see if they can meet some of the requirements.”

Medina also added that the department will look into other actions, which may include a legal step-by-step plan at each store to fix their crime issues, or the store could be closed.

Walgreens did sent a response to the letter to Medina which reads in part:

“We will review the letter and want to work with the police department to address these issues as the safety of our patients, customers and team members is our top priority.”

REACTION TO MEDINA LETTER

Carla Sonntag with the New Mexico Business Coalition said many of its members have been forced to hire security at a hefty price. Sonntag said the business coalition has started a legal fund to sue the City of Albuquerque for not enforcing lower-level crimes such as shoplifting and trespassing. Sonntag said this:

“Some of our businesses are spending hundreds of thousands of dollars every year in order to try to protect their properties. … It’s not right. We shouldn’t live in fear of our lives. … We shouldn’t have to question if we’re able to go into a store and safely purchase goods.”

Aaron Jones, with the armed security company International Protective Service, said Walgreens contacted him after receiving the Medina letter. Jones said APD should be doing more to protect businesses in Albuquerque and said blaming the businesses for crime is not a police department’s job. Jones said this:

“There’s a lot of problems with this whole deal in general.  For one, Walgreens is taxpayers, just like everybody else in the city of Albuquerque taxpayers. And taxes are supposed to pay for protection. … “[Private security is] not a cheap proposition at all, especially if you’re hiring me. …  I can guarantee you that, you know, we put millions of dollars into providing this type of service, and we do it for four different companies all over the country very effectively.

“When you want to blame the stores … [for] the crime going on, I’m sorry, I was a cop. … We went out, and we dealt with crime and whatever. And I’m sorry for the things are going the way they are, but it’s it seems a little ridiculous to me blaming these businesses.”

For Medina for his part said the police department should not be directly involved with Walgreens stores for security. Medina said this:

“I’m here to say it is not the responsibility of the Albuquerque Police Department and the taxpayers of the city of Albuquerque to put an officer at every single Walgreens that sells alcohol.”

 APD DEPUTY CHIEF GOES TO DEFENSE OF DEPARTMENT

On August 27, the Albuquerque Journal published a guest column written by Deputy Chief Josh Brown of the Field Services Bureau providing an explanation of APD’s demands made upon Walgreen.  Brown argued  that APD Chief Medina made common sense recommendations to address the theft of alcohol at Walgreen’s stores.  The column reads in part as follows:

“APD works with businesses across the city – from small mom-and-pop stores to large national chain retailers that make billions of dollars a year. The vast majority of those business owners and managers are great partners and we help each other to combat crime.

Unfortunately, we run into roadblocks with some businesses. Most recently, that has been the case as I personally have tried to work with the leadership of Walgreens to address the specific issue of alcohol theft at some of their stores in Albuquerque. Thieves are targeting the liquor departments at Walgreens because they see an easy opportunity to steal alcohol without getting caught. We are trying to work with Walgreens to make alcohol theft more difficult and less likely to lead to violence against employees. Theft of alcohol is especially dangerous because it leads to other crimes.

The field officers I oversee are responding to these incidents every day. One frustrated officer recently asked the manager at an Albuquerque Walgreens store why they don’t have security since they are targeted for alcohol theft so often. Police responded four times that weekend to that one store. The manager said the company has decided to reduce security and that store is not on the list for a security guard. The manager threw up her arms in frustration.

We will continue to respond to crimes reported at these stores, but the suggestion that a quicker police response or using sworn officers as security is not realistic or effective. We need more proactive measures to make an impact on theft. We continue to work on APD’s role to be more proactive, just as most businesses are adapting to the criminal activity.”

You can read the entire guest column here:

https://www.abqjournal.com/opinion/letter-to-walgreens-offered-sensible-tips-to-curtail-alcohol-theft/article_7ec433ac-42c3-11ee-b358-2f576a2fe6e5.html

DISTRICT ATTORNEY PROSECUTING SHOPLIFTING CASES

On September 5 Second Judicial District Attorney Sam Bregman, accompanied by APD Chief Harold Medina, Bernalillo County Sherriff John Allen, NM Representative Marian Mathews and members of the business community, held a press conference to announced that the Bernalillo County District Attorney Office is prosecuting all misdemeanor shoplifting cases.

Bregman said his office has hired 40 attorneys since he took office in January. The office is fully staffed, and a team of 14 prosecutors will add hundreds of cases to their workload.  The 14 attorneys already assigned to the District Attorney Metro Court  Division and who prosecute domestic violence and DWI cases, which are “cases of record” requiring a court reporter, will have the shoplifting cases added to their caseloads. Bregman said his office would not do this if he didn’t feel his attorneys couldn’t handle the addition to their case loads.

The ultimate goal of the  plan is to free up more law enforcement officers with attorneys prosecuting cases. Normally, shoplifting cases is a misdemeanor and such cases are referred to as “police officer prosecutions”.  Albuquerque Police and Bernalillo County deputies have been prosecuting misdemeanor shoplifting cases on their own without a prosecutor presenting the evidence and perhaps examining witnesses. According to a news release from Bregman’s office, 40 to 70 misdemeanor shoplifting cases are going go through Metropolitan Court every month.

COMMENTARY AND ANALYSIS

Now that Bernalillo County District Attorneys office is prosecuting shoplifting cases, Medina and company need to knock it off trying to shame the private sector to act and start investigating shoplifting cases more aggressivity  and forwarding them to the District Attorneys Office for prosecution.

To be blunt, APD Chief Medina’s August 4 press conference, his August 14 letter to Walgreens as well as Deputy Chief Josh Brown’s letter to the Albuquerque Journal combined amounts to nothing more than a “public shaming” and finger pointing essentially saying private sector business is responsible for crime at their  establishments when it is they who  are the victims of crime.  Chief Medina takes it a step even further when he threatens legal steps to close the stores if something is not done immediately.  What is really going on is that Chief Medina and APD simply want Walgreens to stop calling APD to report crime so the department can concentrate on what it considers more serious crime. When someone gets killed at a Walgreens is when APD would probably show some real interest.

What was really out of line and down right arrogant is when Medina said the police department should not be directly involved with Walgreens stores for security and boldly proclaimed:

“I’m here to say it is not the responsibility of the Albuquerque Police Department and the taxpayers of the city of Albuquerque to put an officer at every single Walgreens that sells alcohol.”

Walgreens has never said that nor requested that,  yet Medina proclaims APD should not be directly involved with Walgreen store security. He is right on one level, but  then he makes demands that does exactly that by demanding store layout changes, limiting times of sales, hire level 3 security guards and connect its cameras to APD’s Real Time Crime Center.  Medina complains about all the calls for service made to APD and then tells Walgreens to implement a policy where employees would have to report shoplifting and alcohol theft to APD. This is what is called talking out of both sides of your big mouth.

ENFORCE NUISANCE ABATEMENT LAWS WITH INTERVENTION AGREEMENTS

What Chief Medina and Deputy Chief Josh Brown need to do is request the  City’s legal Department and the  City Attorney’s  Office to enforce the city’s nuisance abatement laws.  The City Attorney and not APD should be dealing with Walgreen’s corporate council and conduct negotiations on what steps can be agreed to reduce calls for service to the businesses and negotiate nuisance abatement agreements with intervention meetings.

There is a strong historical precedent for this approach. In 2005, the City’s  Safe City Strike Force identified convenience stores that had an unacceptable number of “calls for service” which resulted in the convenience stores being considered a public nuisance by the Albuquerque Police Department (APD). APD felt the convenience stores were relying upon APD to provide security at taxpayer’s expense rather than hiring their own private security company, which is exactly what is going on with Walgreens.

The Safe City Strike Force took enforcement action against upwards of 15  convenience stores in Albuquerque that had substantial calls for service to APD.  Private negotiations occurred between the convenience stores counsel and the city attorneys office without APD. A stipulated nuisance abatement  agreement was negotiated with three major convenience store corporate owners of seventeen (17) convenience stores throughout Albuquerque. The conveniences stores agreed to pay for private security patrols and make security modifications to the stores including lighting, removal of pay phones that were being used for drug transactions and by prostitutes and securing of liquor. In exchange, the city agreed to cease and desist any civil action against the convenience stores to close them for a period of one year while the businesses were monitored by APD and assisted where necessary by responding to calls for service.

Private cooperation and communication will always accomplish more than public shaming by law enforcement.

Links to cited and quoted news sources are here:

https://www.cabq.gov/police/news/chief-medina-releases-letter-to-walgreens

https://www.kob.com/new-mexico/apd-calls-on-walgreens-to-expand-crime-reduction-efforts/

https://www.koat.com/article/albuquerque-police-calls-out-walgreens-safety/44822109https://www.krqe.com/news/crime/apd-sends-letter-to-walgreens/

https://www.koat.com/article/albuquerque-police-aftermath-walgreens-letter/44950582

https://newmexicosun.com/stories/648824237-albuquerque-police-department-chief-medina-releases-letter-to-walgreens-to-help-reduce-crime

https://abq.news/stories/apd-chief-sends-letter-to-walgreens-pushing-for-anti-theft-policies,39834

https://www.abqjournal.com/opinion/letter-to-walgreens-offered-sensible-tips-to-curtail-alcohol-theft/article_7ec433ac-42c3-11ee-b358-2f576a2fe6e5.html

LINKS TO TWO RELATED BLOG ARTICLES ARE HERE:

DA Sam Bregman Announces Office Will Prosecute Shoplifting Cases; A Return To Basics Long Overdue That Will Impact Crime

Strike Force Cleaned Up Central and Made City Safe

DA Sam Bregman Announces Office Will Prosecute Shoplifting Cases; A Return To Basics Long Overdue That Will Impact Crime

On September 5 Second Judicial District Attorney Sam Bregman, accompanied by APD Chief Harold Medina, Bernalillo County Sherriff John Allen, NM Representative Marian Mathews and members of the business community, held a press conference to announced that the Bernalillo County District Attorney Office is prosecuting all misdemeanor shoplifting cases.

Bregman said his office has hired 40 attorneys since he took office in January. The office is fully staffed, and a team of 14 prosecutors will add hundreds of cases to their workload.  The 14 attorneys already assigned to the District Attorney Metro Court  Division and who prosecute domestic violence and DWI cases, which are “cases of record” requiring a court reporter, will have the shoplifting cases added to their caseloads. Bregman said his office would not do this if he didn’t feel his attorneys couldn’t handle the addition to their case loads.

The ultimate goal of the  plan is to free up more law enforcement officers with attorneys prosecuting cases. Normally, shoplifting cases is a misdemeanor and such cases are referred to as “police officer prosecutions”.  Albuquerque Police and Bernalillo County deputies have been prosecuting misdemeanor shoplifting cases on their own without a prosecutor presenting the evidence and perhaps examining witnesses. According to a news release from Bregman’s office, 40 to 70 misdemeanor shoplifting cases are going go through Metropolitan Court every month.

Last year, the county had 662 misdemeanor shoplifting case filed in Metropolitan Court, all of which were officer-prosecuted. The problem is the conviction rate is 15%. Bregman  did not  blame the law enforcement officers for the low conviction rate in that most of them are trying to prosecute crimes they didn’t witness.  Bregman did say the conviction rate reflected the need for change in how the prosecutions were handled. Bregman said this:

15% is all that was convicted of misdemeanor metro cases in Bernalillo County. … It’s not working.  It’s not even close to working. That is unacceptable at every level. I’m not placing blame on anyone. But enough is enough.We want cops to be cops and by making them be prosecutors it takes cops off the streets People should be able to go to the store without being afraid. Business owners are also fed up. … We think these new changes will hold repeat shoplifters accountable.The days of shoplifting without consequences are over in Bernalillo County. … Residents of Bernalillo County have made it clear, they have had enough.”

DA Bregman said he knows shoplifting is often a means to feed drug addiction, so his office will also offer diversion programs and ways for people to get out of the criminal justice system. However, he says if people continue to shoplift, even small items, prosecutors will seek jail time.

AGGREGATING RETAIL CRIME FOR PROSECUTION

It was during the 2023 New Mexico legislative session that House Bill 234 was passed. The legislation creates a new category of “organized retail crime” and stiffens penalties for organized theft of store merchandise.  Retailers have highlighted losses from coordinated pilfering.

The new law gives District Attorneys the ability to aggregate the total retail market value of merchandise shoplifted by an individual who does it more than once during a 90-day period. The result is that a misdemeanor charge can turn into a fourth-degree felony or greater, depending on the value of the merchandise stolen.

House Bill 234 went into effect in July 1.  DA Bregman said his  office has charged 23 cases as felonies and will continue to utilize the new law to actively prosecute future cases. In those 23 cases, Bregman said his office filed for pretrial detention for 5 individuals and had 4 granted.

NM Rep. Marian Matthews, D-Albuquerque, one of the HB 234 sponsors who attended the September 5 press conference with Bregman, said the new law gives law enforcement a solid statute in place to pursue retail crime.  She also gave praise to the District Attorney’s Office for using the new law and dedicating resources to prosecution efforts.  Matthews said this:

“I want to give the DA a shoutout for putting the resources into Metro Court in order to bring these cases and increase the number of convictions”.

Links to quoted news sources are here:

https://www.koat.com/article/albuquerque-prosecutors-take-new-approach-to-combatting-retail-theft/45024586

https://www.kob.com/new-mexico/bernalillo-county-district-attorney-vows-to-crack-down-on-shoplifters/

https://www.krqe.com/news/crime/bernalillo-county-district-attorney-creates-team-of-prosecutors-to-address-shoplifting-cases/

https://www.abqjournal.com/news/bregmans-office-to-prosecute-all-misdemeanor-shoplifting-cases/article_40c8395e-4c1e-11ee-bed2-0f2ee674f385.html

DA BREGMAN IN HIS OWN WORDS

On September 24, the Albuquerque Journal published the below guest column by District Attorney Sam Bregman:

HEADLINE: We’ve made a major change prosecuting shoplifting

“The time when there are no consequences for shoplifting in Bernalillo County is coming to an end. Effective Sept. 1 of this year, the District Attorney’s Office will be entering its appearance in every shoplifting case, including all misdemeanors filed in Metropolitan Court.

A little history is necessary to understand why this is a major change for our community. For over the past two decades, shoplifting cases that were misdemeanors were known as officer prosecuted cases. Meaning, that the arresting officer was required to prosecute these cases in Metropolitan Court. There were several problems with this: (1) Officers are not prosecutors; and (2) Officers were in the court on cases they were not even witnesses to, as opposed to being on the streets fighting crime. Last year, this resulted in a misdemeanor shoplifting conviction rate of 15%. This is simply unacceptable at every level.

So effective as of Sept. 1, I have directed prosecutors from my office to prosecute misdemeanor shoplifting cases in Bernalillo County. A total of 14 prosecutors will be handling misdemeanor shoplifting cases together with misdemeanor DWIs and domestic violence cases. This office, in just the first 19 days of this new policy, is prosecuting 56 shoplifting misdemeanor cases.

Earlier this year, the Legislature passed a new law allowing for the aggregation of misdemeanor cases to make them felonies. That law went into effect this summer and this office has utilized this law to enhance 32 cases into felonies and is prosecuting those cases.

If the Legislature continues to give law enforcement the tools, we will do the job. I want the people of Bernalillo County to know the Mission Statement of the District Attorney’s Office: “To be relentless in holding people accountable under the rule of law — to do Justice. We do this with the unwavering commitment that our top priority will be the safety of the community in Bernalillo County.”

https://www.abqjournal.com/opinion/weve-made-a-major-change-prosecuting-shoplifting-in-bernalillo-county/article_34885820-5805-11ee-b01e-5730bdf70b95.html

COMMENTARY AND ANALYSIS

DA Bregman is commended on his decision  have his office prosecute shoplifting cases. This is what is called getting back to the basics.  It is likely his office will have a much higher success rate when it comes to convictions than his predecessor. No District Attorney can ever guarantee a 100% conviction rate on case loads, but it is always the ultimate goal of any District Attorney worth their salt.  At one time, the District Attorney’s office was able to boast of conviction rates in both felony and misdemeanor cases exceeding 90% and as much as 98% depending on the type of cases.

District Attorney Sam Bregman was appointed District Attorney on January 4 by Governor Michelle Lujan Grisham to fill the remaining 2 years of the term of former District Attorney Raúl Torrez  who was elected New Mexico Attorney General.  In 2015, the District Court provided a study of the Bernalillo County District Attorney’s office and performance measures.  The statistics revealed the Bernalillo County District Attorney’s Office under Raúl Torrez had a 66% combined dismissal, acquittal and mistrial rate with cases charge by grand juries, which would be felonies only. The data presented showed in part how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to the high mistrial and acquittal rates. The performance measures have gotten  much better now that Torrez has left the Bernalillo County District Attorney’s office.

https://www.kob.com/albuquerque-news/da-wants-nm-supreme-court-to-review-grand-jury-changes/5012558/?cat=500

Another thing DA Bregman needs to be recognized for is his ability to work with other law enforcement agencies, including APD and BCSO and especially the courts. Gone is the fingerpainting to the court’s by the DA.  Bregman has made it clear from the start that he may disagree with court rulings, but he would not be openly hostile towards the courts nor would he say our criminal justice system is broken. This is a sign of a mature trial attorney that knows full well he must work with, and more importantly, respect the courts.

By all accounts, District Attorney Sam Bregman has done a commendable job thus far as District Attorney and has begun to turn things around when it comes to prosecuting cases by the Bernalillo County District Attorney’s Office.  In the 9 months he has been District Attorney, Sam Bregman has implemented reforms and procedures that have led to significant improvements within the office including:

Hiring of 40  new attorneys,  more than double the number of attorneys hired in all of 2022.

Nearly 60% of pre-trial detention motions are being granted, the highest percentage since 2017

The office now has criminal conviction rate of 66.7%,  nearly 10% higher than in 2022.

 https://www.scribd.com/document/656685248/Bregman-Announce

Ultimately, only time will tell if DA Bregman will be successful and for that matter get elected in 2024 for a full 4 year term.  If Bregman’s last 9 months performance are any measure, his office will be successful by simply getting back to the basics of criminal prosecution designed to make a real difference and he will be elected to a full 4 year term.

 

Judge Enjoins City From “Enforcing Or Threatening To Enforce” Laws Against Homeless To Displace Them From Public Spaces, Seizing And Destroying Homeless Belongings Without Warrant, Mandates Post-Deprivation Hearings; Injunction Usurps And Interferes With City’s Legitimate Enforcement Of Public Safety Laws; City Will And Should Appeal; County Sheriff Should Start Arresting And DA Should Start Prosecuting

On September 21, State District Court Judge Josh Allison entered a Preliminary Injunction against the City of Albuquerque from “enforcing or threatening to enforce” statutes and city ordinance to displace the homeless from public spaces. The Court also enjoined the city from seizing and destroying homeless belongings and mandates a warrant and post deprivation hearings regarding personal belongings seized.

This blog article is an in-depth report on the civil rights lawsuit filed and the court’s rulings with commentary and analysis.

CLOSURE OF CORONADO PARK

On July 25, calling Coronado Park “the most dangerous place in the state of New Mexico” Albuquerque Mayor Tim Keller held a press conference at Coronado Park located at  301 McKnight Ave NW,  immediately South and bordered by I-40,  to announce the planned closure of Coronado Park.  Keller said it was urgent to close the park and said this:

“We’re not going to wait any longer. We have all the evidence we need that says that we have to do something different. … It is not going to be something where every question is answered, and every plan is thought out. … We do not have the luxury of a perfect plan. … At this point, if we don’t close the park now, it will never be a park again. … There was unanimous consensus that at a minimum, temporarily, this park has to close. … This is the first step. We welcome everyone to help us problem-solve, but someone has to step up and make a decision … And that’s what people elected me to do.”

The park had become a de facto city sanction homeless encampment. City officials said upwards 120 people camped nightly at the park. Over a period of 10 years, Coronado Park became a de facto city sanctioned homeless encampment with the city repeatedly cleaning it up only for the homeless to return the next day. City officials said it was costing the city $27,154 every two weeks or $54,308 a month to clean up the park only for the homeless encampment to return.  Residents and businesses located near the park complain to the city repeatedly about the city allowing the park to be used as a homeless encampment.  At any given time, Coronado Park had 70 to 80 tents crammed into the park with homeless wondering the area.

Criminal activity dramatically spiked at Coronado Park over the 3 years before it was closed with an extensive history of lawlessness including drug use, violence, murder, rape and homeless suffering from mental health episodes. In 2020, there were 3 homicides at Coronado Park. In 2019, a disabled woman was raped, and in 2018 there was a murder. APD reports that it was dispatched to the park 651 times in 2021 and in 2022 at least 312 dispatches and over 400 calls up and until its closure in August. There have been 16 stabbings at the park in the past 2 years and in 2022 APD seized from the park 4,500 fentanyl pills, more than 5 pounds of methamphetamine, 24 grams of heroin and 29 grams of cocaine. APD also found $10,000 in cash.

The city also cited lack of sanitation posing a health risk to those at Coronado Park and playing a role in the park closure, as well as overall damage to the park. Most if not all of the trees in the park were dead and the city had to cut them down. An analysis of the city park grounds revealed a level of mold contamination that posed a major, immediate health risk to the unhoused.  Drug trafficking at the park had reached a crisis proportions. Albuquerque Police Department announced that they recovered several different firearms at the park, as well as narcotic drugs like fentanyl, methamphetamine and heroin.

On August 17, 2022, the City of Albuquerque closed Coronado Park ordering the eviction and removal of all homeless who had occupied the park.  City officials said many people from Coronado Park did accept services prior to closing the park and said this:

“The City and our partner organizations conducted weeks of intensive outreach, service offerings, and notice, prior to closing Coronado Park. 72 people were connected to services, including local shelters, motel vouchers, pathways to permanent housing, personal storage, and medical treatment. Coronado Park had become a hub for narcotic usage, trafficking and organized crime. Closing the park was the right thing to do. People living there deserved better, safer alternatives, and connecting people with the help they needed was our priority. The City is investing more money than ever in solutions to reduce chronic homelessness and create affordable housing.”

https://www.krqe.com/news/albuquerque-metro/homeless-man-sues-city-of-albuquerque-over-coronado-park-removal/

CLASS ACTION LAWSUITE FILED

On Monday, December 19, 2022  the American Civil Liberties Union of New Mexico, the NM Center on Law & Poverty, and the law firms of Ives & Flores, PA and  Davis Law New Mexico filed a  “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief” against the City of Albuquerque on behalf  4 men and 4 women identified Plaintiffs alleged to be homeless. According to the complaint filed, not one of the 8 plaintiff’s allege they were charged or arrested for refusing to leave the park on the day it was closed nor were they jailed.

The Plaintiffs allege they were displaced from Coronado Park when the city closed it and that the city did not provide satisfactory shelter options to them although the city said it did give notice and offered shelter and services, including vouchers.  According to an ACLU press release, the lawsuit was filed to stop the City of Albuquerque from destroying encampments of the unhoused, seizing and destroying personal property and jailing and fining people.

The link to review the full unedited complaint is here:

https://www.aclu-nm.org/sites/default/files/field_documents/final_complaint_class_action.pdf

GENERAL NATURE OF THE CLAIMS

The lawsuit was filed in State District Court and assigned to Civil Court Presiding Judge Josh Allison.  Only the City of Albuquerque is specifically named as a Defendant.  Mayor Tim Keller, APD and the Family and Community Service Department are not named as defendants.  The 46 page lawsuit alleges that all 8 plaintiffs were displaced from Coronado Park on August 27 when the city permanently closed the city park.

The lawsuit focuses on the city’s decision in August 2022 to close Coronado Park with no plan for relocating the park’s estimated 120 residents and their personal belongings. Plaintiffs alleged that conditions at Albuquerque’s Westside Emergency Housing Center, were unsafe and unlivable and that space is often unavailable.

The lawsuit alleges in part:

[On August 17, 2022] city employees arrived and began throwing people’s tents and other belongings into garbage trucks and destroying them in the compactor … The scene was chaotic … People were crying and attempting to get their belongings away from city employees … Some people who managed to get some of their possessions out onto the street had the city employees follow them, take their things, and throw them into garbage trucks.”

The lawsuit alleges in the months following the closure of Coronado Park, “people have looked for other locations, but the city continues to sweep unhoused people from wherever they land, making it impossible for people to settle anywhere.” The suit alleges the constant movement keeps unhoused people from working or other meaningful activities as they focus their energy on moving their property from place to place.

The lawsuit alleges the city routinely violated the constitutional rights of unhoused people by seizing and destroying their personal property without notice, denied them due process of law, violated their constitutional rights by destroying their property and forced all the unhoused at Coronado Park out with nowhere for them to go and with the city not providing shelter or housing for them.

The City of Albuquerque generally denied the allegations made regarding the Coronado Park closure. The city said it gave proper notice to all occupants days before the pending closure, gave the park occupants an opportunity to remove their personal belongings and tents and offered alternative shelter and services with many declining the shelter and services. The city also said it offered housing vouchers to those being displaced.

The civil suit contends that the city threatened to cite private landowners who offer people places to set up tents and keep their belongings.  The complaint alleges the city violated constitutional guarantees that protect people from unlawful search and seizure of their property and violates their rights to due process of law. The lawsuit requests a court orders to stop the city from  “seizing the belongings of unhoused individuals without adequate prior notice” and other protections.

ALLEGATIONS OF UNIHABITABLE WESTSIDE SHELTER AND SHELTER SHORTAGE

The lawsuit details a litany of alleged problems with the Westside Emergency Housing Center (WEHC). The specific allegations are:

Under the Eighth Amendment, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter” citing the federal case of Martin v. Boise, 920 F.3d 584, 604 (9th Cir. 2019)

Shelter space in Albuquerque is inadequate to provide beds for all of the city’s unhoused individuals.  A 2019 report prepared for the City reflected that between City-run shelters and private shelters, there were only 633 beds available.

Of the available shelter beds, the greatest number is at the Westside Emergency Housing Center (“Westside shelter”), a facility housed in a former temporary jail that the City stopped using in 2003. The City variously represents the Westside shelter as being able to house between 300 and 450 people.

The Westside shelter is unsafe, unhealthy, and unfit for human habitation. The building does not meet the essential fire safety and building codes of applicable local codes and state regulations and law, including state fire safety codes …  and the City’s own building safety codes.

The lawsuit seeks court orders that will require the city to cease and desist enforcement actions to stop the unhoused from camping in public spaces which includes public streets, public rights of ways, alleyways, under bridges and city parks unless the city has shelter or housing for them.

CONDEMNATION OF CITY FOR CRIMINALIZING THE STATUS OF BEING UNHOUSED

The lawsuit specifically enumerates New Mexico Statutes and City Ordinances that have been enacted to protect the general public health, safety, and welfare and to protect the public’s peaceful use and enjoyment of property rights. The lawsuit does not challenge the constitutionality of any of the state statutes nor city ordinances.

The lawsuit makes the very broad allegation that “the  City regularly enforces City ordinances and state laws against unhoused people in a manner that criminalizes their status as homeless … [and] …  Unhoused people who erect tents or makeshift shelters around the City are routinely cited and/or arrested for violations of [the state laws and city ordinances].   Violations of these statutes and ordinances are punished as misdemeanors.”

All the laws cited have been on the books for decades and are applicable and are enforced against all citizens and not just the unhoused. The specific statutes cited in the lawsuit are:

  1. NMSA 1978, Section 30-14-1 (1995), defining criminal trespass on public and private property.
  2. NMSA 1978, Section 30-14-4 (1969), defining wrongful use of property used for a public purpose and owned by the state, its subdivisions, and any religious, charitable, educational, or recreational association.
  3. Albuquerque City Ordinance 12-2-3, defining criminal trespass on public and private property.
  4. Albuquerque City Ordinance 8-2-7-13, prohibiting the placement of items on a sidewalk so as to restrict its free use by pedestrians.
  5. Albuquerque City Ordinance 10-1-1-10, prohibiting being in a park at nighttime when it is closed to public use.
  6. Albuquerque City Ordinance 12-2-7, prohibiting hindering persons passing along any street, sidewalk, or public way.
  7. Albuquerque City Ordinance 5-8-6, prohibiting camping on open space lands and regional preserves.
  8. Albuquerque City Ordinance 10-1-1-3, prohibiting the erection of structures in city parks.

All the above laws are classified as “non-violent crimes” and are misdemeanors.  The filing of criminal charges by  law enforcement are discretionary when the crime occurs in their presence.  Once the charges are filed, the cases are referred to as “police officer prosecutions”.  Albuquerque Police and Bernalillo County Sherriff Deputies must prosecute the cases on their own in Metropolitan Court without a prosecutor presenting the evidence and perhaps examining witnesses.

APD’S NO ARREST POLICY

The civil complaint alleges that the city is “jailing and fining” the unhouse because of their status of being homeless. This allegation is simply FALSE.  Not one of the 8 plaintiffs who filed the complaint were charged or arrested for refusing to leave Coronado Park on the day it was closed nor were they jailed.  The complaint does not allege any one was arrested or taken to jail on the day Coronado Park was closed.

When the City and APD arrest or detain the unhoused,  it is for felonies and not misdemeanors.  Felony arrests of the homeless are made on illicit drugs, stolen property, stolen or unlicensed hand guns or weaponry, individuals with outstanding arrest warrants or individuals who pose an immediate threat to the public or themselves.

For the last 5 years, the city and APD have had a “no arrest” policy when it comes to nonviolent misdemeanor charges such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space. The homeless are given a 3-day notice to vacate their encampment along with their belongings.  The “no arrest” policy is the result of a settlement reached in the 1995 federal case of McClendon v. City of Albuquerque that involved overcrowding and racial discrimination at the jail. McClendon was filed to reduce overcrowding at the jail and it had absolutely nothing to do with the homeless.

It was on May 10, 2018 that APD Department Special Order 17-53 was issued as part of the settlement of the 20-plus year McClendon Lawsuit.  Special Order 17-53 states:

“[A]ll officers shall issue citations when appropriate in lieu of arrests on non-violent misdemeanor offenses. … officers shall issue citations when appropriate in lieu of arrest on non-violent misdemeanor offenses when there are no circumstances necessitating an arrest.”

All the criminal trespass and loitering state statutes and city ordinances cited in the Plaintiff’s civil complaint are affected by Special Order 17-53.  The APD memo makes it clear that officers may make an arrest only if it is necessary and if they do, an incident report must be prepared, and the incident report must include the reasons why an arrest was made.

During the June 22, 2022 meeting of the Albuquerque City Council, a city attorney explained the federal pressures the city is operating under. The city attorney cited federal cases arguing that they place limitations on the city. The main case cited by the city attorney when it comes to enforcing the law and the homeless was McClendon v. City of Albuquerque. The city attorney said this

“[When it comes to] “quote, unquote” homeless crimes, those offenders are not allowed to be arrested as a primary intervention”.

The city attorney explained that when it comes to “homeless crimes”, meaning illegal camping, criminal trespassing and loitering, those offenders are not to be arrested as the primary intervention. Under the settlement terms, police still have the option to issue citations and still have the discretionary authority to make felony arrests as they deemed appropriate and where the circumstances warrant it.

The city attorney said this:

We are trying to advise the best we can [of] the least expensive means to be the most productive and respect people’s civil rights. 

KOB 4 News 4  interviewed UNM law professor Joshua Katzenberg and asked how much power does the city and APD really have when it comes to enforcing the law against the homeless. Professor Kastenberg had this to say:

“The City’s hands and the Police hands are tied to a certain extent, that’s true. … Coronado Park you could put in any major city and we would be having this discussion right now. … I have talked to police officers and there is a fear of lawsuits, there is a sort of sense of hopelessness. That’s the sad state of affairs. …”

KOB 4 contacted APD and asked them to quantify how they are enforcing the law when it comes to the low-level, nonviolent offenses committed by the homeless. An APD spokesman told KOB that at the time in 2022 there had been issued 2,308 citations to the homeless and issued 614 trespassing notices with 3 trespassing stops revealing outstanding warrants.

The link to the full 3 minute, 34 second unedited KOB story is here:

https://www.kob.com/new-mexico/unm-law-professor-weighs-in-on-mayors-claims-about-homelessness/

STATE DISTRICT COURT ENJOINS CITY

On March 31, 2023, the Plaintiff’s file an “Emergency Motion for a Preliminary Injunction” with a separate “Memorandum In Support” of the motion attaching affidavits.  On April 24, 2023, the City filed its Response to the Motion with a brief and affidavits. On May 12, 2023 the Plaintiffs filed a Reply. On September 8, 2023, Judge Allison held a hearing on the motion.

On September 21, Judge Allison filed his “Memorandum Opinion And Oder Granting In Part Plaintiffs Motion for A Preliminary Injunction”.

FINDINGS OF FACT

Judge Allison made the following “Findings of Fact” in his order enjoining the city:

There are more homeless people living in the City of Albuquerque … than there are available shelter beds for sleeping at night. A large number of homeless people in Albuquerque simply have no place to be at night except outside.

There are inadequate and insufficient indoor spaces for homeless people living in Albuquerque to be during the day. A large number of homeless people in Albuquerque simply have no place to be during the day except outside.

Everyone has to be someplace.

For most people who experience homelessness, it is not a static condition. Many people living in Albuquerque, including some of the named plaintiffs in this lawsuit, have experienced homelessness off-and-on for periods of time over a number of years.

The City has enforced, and has threatened to enforce, various ordinances and statutes criminalizing homeless persons’ mere presence on outdoor public property and the presence of their belongings on outdoor public property when there are inadequate indoor spaces for homeless people living Albuquerque to be. The City has threatened punishment under these laws to force homeless people to move from one outdoor public space to another.

The City’s improper enforcement of these statutes and ordinances often causes irreparable harm to the homeless people against whom they enforced. For example, arrests for these violations regularly result in missed court appearances and the resulting issuance of bench warrants for the homeless person’s arrest for failure to appear. Also, a homeless person who is forced to relocate from one outdoor public space to another oftentimes loses personal belongings that are vital to that person’s health and safety as a result of that forced relocation.

The City has seized and destroyed the property of homeless people, including property that homeless people need to live (e.g., tents, tarps, blankets, medication, identification, clothes, food, benefit cards, pets, bicycles, etc.) without a valid search warrant, without adequate pre-deprivation notice, or without an adequate opportunity to be heard prior to or after the seizure and before the destruction of the property. Many of these constitutionally inadequate seizures of the property of homeless people took place in 2023.

The City’s seizure and destruction of the property of homeless people often causes irreparable harm to the homeless people whose property is unlawfully seized and unlawfully destroyed. Oftentimes, these seizures result in the destruction of property that the homeless person needs to live: shelter, medication, clothing, blankets, et

CONCLUSIONS OF LAW

Judge Allison made the following “Conclusions of Law”  as applying to the case to grant injunctive relief:

EDITORS NOTE: Case law citations have been deleted for brevity and with headlines added for clarification.

CRUEL AND UNUSUAL PUNISHMENT FOR OCCUPYING OUTDOOR PUBLIC SPACES RULINGS

 “[T]he Eighth Amendment [to the United States Constitution] prohibits the [city]  from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.” …

While the City is not constitutionally obligated to provide housing for homeless people, it cannot punish the mere presence of homeless people and their belongings in outdoor public spaces when there are inadequate indoor spaces for them to be.

 … [T]he Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.

 … [P]unishing a homeless person’s innocent behavior of merely existing in outdoor public spaces when there is insufficient shelter within the City of Albuquerque violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

For identical reasons, the City cannot threaten to arrest, cite, or otherwise punish unhoused people for their mere presence in outdoor public spaces in order to forcibly move them from one outdoor public place to another. Those threats of prosecution also criminalize otherwise innocent behavior.

 As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something for which they may not be convicted under the eighth amendment—sleeping, eating and other innocent conduct

The City’s enforcement, and its threats of enforcement, of various ordinances and statutes criminalizing homeless persons’ mere presence on outdoor public property and the presence of their belongings on outdoor public property, when there are inadequate indoor spaces for homeless people living in Albuquerque to be, violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

UNLAWFUL SEIZURE RULINGS

Judge Allison made the following “unlawful seizure” rulings:

Article II, Section 10 of the New Mexico Constitution provides that “[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures . . . .”

 This provision “guarantee[s] that people will not be subjected to unreasonable searches and seizures.”

Thus, a “seizure” occurs when the government deprives a person of (i.e., takes) their property. … However, a seizure also occurs when the government “meaningfully interferes” with a person’s possession of their property; a seizure may be nothing more than a “brief detention of [the person’s] personal effects.”

 A person’s property may be seized even when the property is in a public space. …

This is so because “a reasonable expectation of privacy [e.g., a desire to keep the property private] is not required to trigger Fourth Amendment protection against seizures.” … Rather, both the State and Federal Constitutions protect against “unreasonable interferences” with a person’s possession of, and interest in, their property, regardless of whether the property was intended to be kept private.

Simply put, the government cannot seize a person’s property just because that person is in a public space with their property. More is required for a seizure to be lawful.

The ultimate test to determine the constitutionality of any seizure and/or destruction of homeless persons’ unabandoned property is one of reasonableness.  …

[I]t is simply not reasonable for the City to seize the property of homeless people for the sole reason that they are living in outdoor public spaces, and it is even less reasonable that the City would not provide a process for those homeless persons to reclaim their property once it had been seized.

The City’s public interest is to maintain safe, clean, and healthy outdoor spaces. That much is clear, and that is a valid interest, to be sure. Yet, the interest of homeless people is to have what they need to survive and live in those outdoor spaces.

On balance, and without any additional reasons other than the homeless person is living in an outdoor public space when there are inadequate indoor spaces for them to be, the City’s interest is insufficient to allow for the seizure of homeless persons’ property just because they are occupying public spaces.

It is …  unreasonable for the City to permanently deprive homeless people of their property solely because they are living in outdoor public spaces, without allowing them the opportunity reclaim that property after it has been seized.

The City’s primary interest supporting the destruction of homeless persons’ property is the cost and effort it must expend in securing, identifying, transporting, storing, and providing a process for returning that property to the homeless person to whom it belongs.

Again, the homeless persons’ interest is to be free from the destruction of their property, much of which is vital to their health and safety, for the sole reason that they are living in outdoor public spaces when they have no other place to be.

On balance, the City’s interests are again insufficient.  … It is …  unreasonable …  for the City to destroy the property of unhoused people that they need to survive.

The Court …  rejects the City’s argument that any process to provide all homeless persons a reasonable opportunity to reclaim their property that has been seized by the City is too expensive and too burdensome.

The reasonableness of the seizure also touches upon the issue of the abandonment of homeless persons’ property: namely, the question of when any person, including a homeless person, has abandoned their property in a public place such that the City is justified in taking it (that is, seizing it) and throwing it away without notice and an opportunity to be heard.

 Again, it is simply not reasonable for the City to conclude that a person’s established “camp,” and the belongings in and around the camp, have been abandoned because the person is not present or because the person has not moved their belongings to another public place as directed by the City.

 Another important consideration in the analysis of the reasonableness of the City’s actions in seizing and destroying homeless persons’ property is whether the government has unreasonably interfered with a person’s possession of the person’s property without due process of law. …  

The facts … in the record demonstrate the City has seized and destroyed homeless persons’ property without adequate legal process. …

[T]he Court concludes that City’s actions in taking and destroying homeless persons’ property are not consistent with the City’s obligation to provide each person whose property is taken adequate notice of the intended seizure (including the legal justification supporting the seizure), a predeprivation merits hearing on that issue, and then a post-deprivation opportunity to reclaim that property.

PROCEDURAL DUE PROCESS RULINGS

Judge Allison made the following procedural due process rulings:

[T]he City must afford homeless people before seizing and destroying their property.  Article II, Section 18 of the New Mexico Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law[.]”

With respect to administrative proceedings such as those conducted by the City, the Court determines what process is due under Article II, Section 18 by balancing three factors:

 (1) identifying what the person will be deprived of by the government’s actions (e.g., what property interest or property right will be taken);

(2) assessing the risk that the person will be improperly deprived of that property interest if the government does not provide more process or more procedural safeguards; and

(3) weighing the government’s interests (financial, administrative, etc.) in avoiding the additional process or procedure, e.g., are those additional safeguards too burdensome, too expensive, etc.?

Generally, the government must provide notice and an opportunity to be meaningfully heard before seizing a person’s property.

Indeed, “[i]f the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.”

The evidence in the record demonstrates that the City does not have a uniform and equally-applicable process to provide homeless people meaningful notice that their property will be seized and destroyed.

At best, the evidence shows that the City has, at times, provided at least some process, but at other times it has provided essentially no process at all. This is especially true with respect to the destruction of homeless persons’ personal property.

In sum, homeless people, just like people with homes, have a right against unreasonable seizures of their unabandoned property, even if that property is left in outdoor public spaces. …

[T] the Court concludes that even if the City had complied with the constitutional prohibition against unreasonable seizures (and the evidence shows it has not), principles of constitutional due process require the City “to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return.” Id. The City simply is not doing this for some number of homeless people living in Albuquerque. Thus, injunctive relief is appropriate.

CITY’S ENCAMPMENT POLICY

Judge Allison made specific rulings regarding the city’s encampment policy entitled “Policy for Responding to Encampments on Public Property” and the city’s argument that it provides sufficient due process to the homeless to keep and/or reclaim their property. The encampment policy includes notice of at least 72 hours prior to the closure of any “encampment” by the City, as well as notice of where the “Personal Property” and “Special Personal Property” may be stored and claimed.

Judge Allison ruled on the encampment policy as follows:

“The Encampment Policy allows for the City to destroy at least some homeless persons’ items of personal property when the City, in its sole discretion, does not have the capacity to store them. …The evidence … shows that the City has in fact destroyed homeless persons’ property without storing it as the Encampment Policy provides. Thus, the Encampment Policy may provide no actual or constructive notice to a homeless person that the person’s property will be destroyed, and it most certainly provides no opportunity for a homeless person to reclaim property that the City already threw away.

“Although the Encampment Policy applies by its own terms to a singular tent or other structure used as a dwelling on outdoor public property, the evidence in the record shows that the City has not applied the notice and storage provisions of Encampment Policy in many situations involving the relocation of just a few homeless people from one outdoor public place to another. The Encampment Policy is not being applied consistently and is therefore insufficient as a matter of law.”

“The City points to the sheer size and volume of some of the property of homeless people in support of its argument that it simply cannot store their belongings: many shopping carts full of “stuff,” stacks of wooden pallets, a make-shift hot tub filled with water at Coronado Park, bicycle parts, and the like. This may be true, but the City points to no legal authority that allows it to destroy a person’s property without due process of law because of its size.”

PROCEDURAL DUE PROCESS THAT MUST BE AFFORDED TO HOMELESS

Judge Allison ruled on the due process that the City must afford homeless people before seizing and destroying their property pursuant to Article II, Section 18 of the New Mexico Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law[.]”

 Judge  Allison ruled as follows:

With respect to administrative proceedings such as those conducted by the City, the Court determines what process is due under Article II, Section 18 by balancing three factors:

(1) identifying what the person will be deprived of by the government’s actions (e.g., what property interest or property right will be taken);

 (2) assessing the risk that the person will be improperly deprived of that property interest if the government does not provide more process or more procedural safeguards; and

 (3) weighing the government’s interests (financial, administrative, etc.) in avoiding the additional process or procedure,

Generally, the government must provide notice and an opportunity to be meaningfully heard before seizing a person’s property.

The evidence in the record demonstrates that the City does not have a uniform and equally-applicable process to provide homeless people meaningful notice that their property will be seized and destroyed. At best, the evidence shows that the City has, at times, provided at least some process, but at other times it has provided essentially no process at all. This is especially true with respect to the destruction of homeless persons’ personal property.

INJUNCTION ORDERS ISSUED AGAINST CITY

Judge Allison issued the follow injunction orders against the City:

“1. [T]he City of Albuquerque …  is hereby enjoined from enforcing, or threatening to enforce as a means of seeking compliance with, any statutes and ordinances against involuntarily unhoused people that prohibit a person’s presence in, or the presence of a person’s belongings on, outdoor, public property.

  [T]he City may continue to enforce statutes and ordinances that would prohibit a homeless person from:

 (a) obstructing sidewalks (including ramps, stairways, and stairwells), driveways, medians, alleyways, public rights of way (including walkways, streets, roads, trails and other paths, bike lanes, and bike paths), parking lots, and other public roadways and walkways, when such obstructions pose an immediate threat to the safety of any person and the City documents and makes a written record of its findings of the immediate threat to the safety of any person; and

(b) occupying any property of any public school.

2. The City is further enjoined from seizing any unabandoned property belonging to a homeless person that is not contraband or is otherwise unlawful to possess without:

(a) having first received a validly executed warrant authorizing the seizure, or

(b) satisfying a legally-recognized exception to the warrant requirement such that the seizure is lawful or

(c) providing written notice to the homeless person to whom the property belongs that the specific property will be seized and providing a pre-deprivation hearing on the merits of the proposed seizure at least 72 hours prior to the proposed seizure.

 3.  The City is further enjoined from destroying any unabandoned property belonging to a homeless person without first adhering to the seizure provisions set out above … in the decretal provisions of this Order and without providing a post-deprivation notice and hearing regarding the property’s destruction, which includes a reasonable opportunity to reclaim the property.

4. This preliminary injunction does not enjoin the City from enforcing any statutes, ordinances, or other laws affecting private property or the rights of others to enforce their rights with respect to private property.

5.  This preliminary injunction does not enjoin the City from enforcing any statutes or ordinances concerning any other criminal acts of unhoused people (meaning those apart from prohibiting a person’s presence in, or the presence of a person’s belongings on, outdoor public property). If, for example, a police officer has reasonable suspicion of criminal activity taking place by an unhoused person on outdoor public property (e.g., an outdoor fire that is prohibited by law, the destruction of public property, the possession of stolen property, or the unlawful use of a weapon), that police officer is not enjoined from taking lawful action to investigate those circumstances and to enforce those other criminal statutes or ordinances.”

6.  This Preliminary Injunction is hereby STAYED through midnight on October 31, 2023 and will become effective automatically at 12:01 a.m. on November 1, 2023.

… .”

TIME TABLE

Starting November 1, if the city of Albuquerque wants to take or destroy the property of a homeless person living in a public space, it must secure a warrant.  In six weeks, the city will also be prohibited from threatening homeless people with legal action if they are occupying public property unless they are unsafely blocking a sidewalk or other public right of way or are on public school grounds. The injunction will remain in effect until a trial is conducted and a trial date is yet to be set.

REACTION TO RULING

Laura Schauer Ives, one of the attorneys representing a group of homeless who sued the city, had this to say:

“It’s an important victory, because it stays in place until there’s a trial, assuming the City of Albuquerque doesn’t change its policies and practices, which hopefully they will. …It’s cruel to prey upon people who are the most vulnerable, it’s cruel to do so when they actually don’t have any other option, when we just don’t have enough housing. … It is now in the city’s hands. … The city can provide places for unhoused people to be … when there’s not enough places to live, the consequence is that there are going to be unhoused people.”

The City Attorney’s Office announced the city intends to challenge the decision and responded to the injunction with the following statement:

“This dangerous ruling would severely limit our ability to keep our city clean and safe, while getting people connected to the help they need. We intend to challenge the decision and protect our ability to enforce necessary public safety measures.”

COMMENTARY AND ANALYSIS

The closure of Coronado Park was absolutely necessary to protect the public’s health, safety and welfare. The city had no choice but to close the park.  Coronado Park had become and ongoing crisis, a public nuisance and a magnet for crime because of homeless conduct and those who squatted and occupied the park. Criminal activity was rampant at Coronado Park for over the 3 years before it was closed. The park had an extensive history of lawlessness including violence, murder, rape, drug use and homeless suffering from mental health episodes.

COURT USURPS AND INTERFERS WITH CITY’S LEGITIMATE LAW ENFORCEMENT AUTHORITY

District Judge Josh Allison’s injunction and ruling that the citycannot threaten to arrest, cite, or otherwise punish unhoused people for their mere presence in outdoor public spaces in order to forcibly move them from one outdoor public place to another is a clear usurpation and interference with the city’s legitimate law enforcement authority.  The injunctions usurps and interferes with the city’s right  to take necessary action  to protect the public health, safety and welfare with the  enforcement of  public safety laws, both state laws and city ordinances.

The courts rulings and findings simply do not make sense on many levels and needs extensive clarification.  The Preliminary Injunction is confusing and contradictory. Judge Allison enjoins the city “from enforcing, or threatening to enforce as a means of seeking compliance with, any statutes and ordinances against involuntarily unhoused people that prohibit a person’s presence in, or the presence of a person’s belongings on, outdoor, public property”.  

The order does not make it clear that “outdoor, public place” is defined as vacant, open space land owned by the city, county, state or federal government nor if it includes outdoor open space areas of government owned buildings such as city hall and the various courts.  As examples, the Second Judicial Court had to fence off the outside of the District Court House entry way to stop the homeless from encamping there at night and the city repeatedly has to take action to have the homeless removed from outside of City Hall and Plaza Del Sol.

The court order provides the city is not enjoined from “enforcing any statutes, ordinances, or other laws affecting private property or the rights of others”.  The city has property rights that are equal to private property rights when it comes to real property it owns and manages including buildings, as does the county and state, yet Judge Allison makes a distinction and gives preference in enforcement of  private real property rights. The court also ruled that the city is not enjoined from enforcing any statutes or ordinances concerning any other criminal acts of the unhoused people, but that is very limited because APD has a no arrest policy when it comes to the misdemeanor crimes of trespass and camping on public property.

The Albuquerque Police Department is currently under a court approved settlement in the federal lawsuit of McClendon v. City of Albuquerque wherein the city has agreed not to make arrests for nonviolent crimes, such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space.  As a result, APD is relegated to merely encouraging or telling the homeless to move on and camp elsewhere falling short of making an arrest and taking them to jail.  Judge Allison is now enjoining such conduct.

The glaring defect of the injunctions issued by Judge Allison against the city is that the Court essentially ruled that the unhoused, because of their status and because there is insufficient  housing available and offered by the city, they have the right to violate the law and illegally camp wherever they want for how long as they want without government interference or threat of arrest.  While Judge Allison says the City is not constitutionally obligated to provide housing for homeless people” he rules the city cannot “threaten” to enforce the laws against the homeless until the city provides sufficient satisfactory shelter and housing to them implying the city is not doing much of anything.

SHELTER SPACE IS AVAILABLE

The lawsuit when filed alleges “the Westside shelter is unsafe, unhealthy, and unfit for human habitation. The building does not meet the essential fire safety and building codes of applicable local codes and state regulations and law, including state fire safety codes …  and the City’s own building safety codes.” Since the filing, the City has expended upwards of $2 million to upgrade and make repairs to the shelter, it has passed city inspection, and  it is habitable with  social and support  services offered. However, many homeless simply refuse to go to the shelter and it is not fully occupied.

During the past 5 years, the city has established two 24/7 homeless shelters, including purchasing the Loveless Gibson Medical Center for $15 million to convert it into a homeless shelter. The city is funding and operating 2 major shelters for the homeless, one fully operational with 450 beds and one when  fully operational  will assist upwards 1,000 homeless and accommodate at least 330 a night. Ultimately, both shelters are big enough to be remodeled and provide far more sheltered housing for the unhoused.

CITY’S EMCAMPMENT POLICY AND DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS

Although Judge Allison found that the City was not consistently following it’s “Encampment Policy”, he did not declare the policy nor the administrative process the city uses as violating due process of law. What he did do is add the additional requirement of a warrant. Judge Allison failed to outline if he wanted the city to rely on the court for post disposition orders and failed to outline how and where he wants unhoused personal property segregated and for how long and when the city can dispose of the property if it is not reclaimed.

Judge Allison foundThe City’s public interest is to maintain safe, clean, and healthy outdoor spaces. That much is clear, and that is a valid interest, to be sure. Yet, the interest of homeless people is to have what they need to survive and live in those outdoor spaces.”   Judge Alison ruled  It is …  unreasonable …  for the City to destroy the property of unhoused people that they need to survive. … The City points to the sheer size and volume of some of the property of homeless people in support of its argument that it simply cannot store their belongings: many shopping carts full of “stuff,” stacks of wooden pallets, a make-shift hot tub filled with water at Coronado Park, bicycle parts, and the like. This may be true, but the City points to no legal authority that allows it to destroy a person’s property without due process of law because of its size.”

Judge Allison failed to limit his order to prohibit the city from destroying personal property the homeless need to survive in outdoor space.  He requires the city to preserve and store virtually all that is seized and simply proclaims  it is unreasonable to dispose of the property saying the city did not cite legal authority not recognizing that the issue may be a matter of first impression.  No mention is made of allowing the city  to secure “consent to dispose” of the personal property from the homeless.

CITY COMMITMENT TO HOMELESS

Judge Allison failed with his finding and orders to address the problem of the unhoused who refuse or decline city shelter, housing, services and financial help offered or the unhoused who simply say they do not want to go to a shelter or those who say they are not satisfied with what is being offered by the city such as the case with the Westside Emergency Shelter. A very large percentage of the Coronado Park unhoused declined the services and shelter offered when the park closed. Many of those displaced from Coronado Park said in a survey they planned to move to another park or street location.

The Courts findings paints with a very broad brush the actual number of homeless and fails to make any findings about the facts and circumstances surrounding the closure of Coronado Park, which was the catalyst for the civil complaint. The court makes a number of broad, unsubstantiated findings as to the actual number of unhoused throughout the city. The courts findings omit the city’s efforts to deal with the unhoused and the city’s financial commitment to help the unhoused.

The city has increased funding to the Family Community Services Department for assistance to the homeless with $35,145,851 million spent in fiscal year 2021 and $59,498,915 million being spent in fiscal 2022 with the city adopting a “housing first” policy.  In the 2023-2024 budget, the City Council added $48 million to address housing and homelessness issues in Albuquerque. The city expends upwards of $8 million a year to operates 2 homeless shelter.   Over two years the city will be spending upwards of $100 Million to help the homeless or near homeless.

COUNTY SHERIFF AND DISTRICT ATTORNEY SHOULD STEP IN

Being unhoused is not a crime. Government, be it federal or local, have a moral obligation to help and assist the unhoused, especially those that are mentally ill or who are drug addicted. However, the unhoused are not above the law. The unhoused are not a protected class under Title 7 of the Federal Civil Rights Act nor the State’s Human Rights Act.  They cannot be allowed to ignore the law, illegally camp wherever they want for as long as they want and as they choose, when they totally reject any and all government housing or shelter assistance.

The civil complaint and the injunction orders apply only to the city of Albuquerque. Consequently, what should occur is that the Bernalillo County Sheriff’s Office should be called upon to start arresting the homeless for misdemeanors that APD cannot nor will not make arrests on.  Bernalillo County District Attorney Sam Bregman recently announced his office will be prosecuting misdemeanor shopping cases. Bregman should announce the same for the crimes of illegal camping, criminal trespassing and loitering.

FINAL COMMENTARY 

The City has the obligation and  every right to enforce its criminal laws on behalf of its citizens, whether it be felony or misdemeanor.  The city cannot simply ignore those laws that have the purpose of preserving and protecting the public health, safety and welfare and the rights of all its citizens.

Unlawful encampment homeless squatters who have no interest in any offers of shelter, beds, motel vouchers from the city or alternatives to living on the street and who want to camp at city parks, on city streets in alleys and trespass in open space give the city no choice but to take action and force them to move on.  The injunction now prohibits the city from instructing the homeless to move on under threat of an arrest that will not happen because of a federal jail overcrowding case settlement that has nothing to do with the homeless.

The City has said it will appeal and it should appeal the court’s injunction without hesitation and further seek the outright dismissal of the case.

Links to quoted news sources are here:

https://www.abqjournal.com/good_news/judge-city-cannot-seize-or-destroy-homeless-peoples-belongings-starting-nov-1/article_c50ef1a6-58e1-11ee-a6a8-3332ccc75fbc.html#tncms-source=home-featured-7-block

https://www.krqe.com/news/albuquerque-metro/injunction-filed-against-city-of-albuquerque-for-removal-of-homeless-personal-property/

https://www.krqe.com/news/albuquerque-metro/homeless-man-sues-city-of-albuquerque-over-coronado-park-removal/

https://www.kob.com/new-mexico/judge-sides-with-aclu-about-albuquerques-treatment-of-homeless-people/

The links to another relevant blog article analyzing the lawsuit file is here:

Unhoused Sue City Over Coronado Park Closure; City Should Seek Immediate Dismissal; Unhoused Cannot Be Allowed To Violate The Law As They Refuse City Shelter And Services

US House Resolution Condemning Gov. MLG’s Emergency Temporary Ban On Guns Stalls; Republican Condemnation Resolution As Useless As “Teats On A Boar Hog”; Republican Freedom Caucus Ploy To Help Ultra Conservative Republican Yvette Herrell To Defeat Democratic Congressman Gabe Vasquez; Dead Heat Poll: Herrell 46%, Vasquez 45%

On Friday, September 8, Governor Michelle Lujan Grisham declared gun violence and illegal drugs a public health emergency with the issuance of a sweeping Emergency Public Health Care Order.  The original Emergency Public Health Order banned the carrying of firearms, concealed or openly, in any public space in Bernalillo County and any state property in New Mexico. The link to the September 8 Emergency Health Order is here:

Click to access 090823-PHO-guns-and-drug-abuse.pdf

During the one week after the Emergency Public Health Care Orders were issued, all hell broke loose consisting of protests by armed citizens, 5 federal and 1 state lawsuits were filed, a federal court hearing on a temporary restraining order, calls for impeachment, and calls for a special session to deal with the state’s high violent crime rates.

On Friday, September 15, Governor Michelle Lujan Grisham announced an Amended Public Health Emergency Order. The amended order scales back the original order by banning firearms only in “public parks and playgrounds” where children and their families gather.  The amended order eliminates sweeping bans on the public carry of firearms in Albuquerque and Bernalillo County. The link to the September 15 Emergency Health Order is here:

Click to access NMAC-EO-2023-130-132-Amended.pdf

U.S. HOUSE RESOLUTION CONDEMNING NEW MEXICO GOV. MLJ

It was Republican Washington U.S. Rep. Dan Newhouse who introduced the Congressional Condemnation Resolution.  The resolutions is a mere 3 pages long.  It contains simplified  “WHEREAS” pronouncements of what the Governor did and said and proclaims the Governor violated her oath of office and infringed on Second Amend Rights to bear arms.

The resolution describes the Governor’s emergency health care order and how it suspends the right to carry open and canceled firearms for 30 days and describes how fines and civil penalties can be imposed for exercising Second Amendment rights. The resolution summarizes 3 specific landmark United States Supreme Court cases that guarantee a person’s right to bear arms.

The resolution cites how United States District Court Judge David Urias issued a temporary restraining order against 2 provisions of the emergency order and how Attorney General Raúl Torrez declared he would not defend the orders. The condemnation resolution quotes the Governor as saying “No Constitutional right in my view, including my oath, is intended to be absolute”.

The condemnation resolution quotes New Mexico’s oath of office requiring an elected official to affirm they must faithfully and impartially discharge duties of office and argues Lujan Grisham violated her oath of office.

The resolution abruptly ends with the following condemnation language:

“The House of Representatives condemns the actions of Governor Michelle Lujan Grisham for blatantly violating the Second Amendment to the Constitution and depriving the citizens of New Mexico of their right to bear arms.”

You can read the full resolution here:

Click to access H.%20Res.%20684%20Text.pdf

Republican Washington U.S. Rep. Dan Newhouse who sponsored the Condemnation Resolution said this at the time of introduction:

“The shocking move from Governor Grisham is a blatant subversion of the United States Constitution and a violation of her oath of office. … It strips away the protection of individual rights and freedom, which sets a dangerous precedent for the rights of … Americans across our nation.”

SPIRITED DEBATE IN HOUSE RULES COMMITEE

On September 18, a hearing was held by the House Rules Committee on the Condemnation Resolution and the resolution is tied to the continuing resolution to keep the government funded for the next month. The resolution resulted in a spirited debate.

Wisconsin Republican Congressman Tom Tiffany  brought the resolution forward to the House Rules Committee on rules on September 18 and said this:

“It condemns the unconstitutional order of New Mexico Gov. Michelle Lujan Grisham that bans New Mexico citizens from carrying firearms in the city of Albuquerque and Bernalillo County.”

Committee Democrats accused Republicans of using the Governor Michelle Lujan Grisham’s executive order as a political stunt.

U.S. Rep. Jerry Nadler, D-New York said this during the committee hearing:

“This resolution does absolutely nothing. It is plainly a waste of time intended to distract us from Republicans’ failure to responsibly govern.”

U.S. Rep. Jim McGovern, D-Mass., echoed Nadler’s sentiment and said this:

“I just want to say for the record I can’t believe we’ve spent all this time talking about a nonbinding resolution. … I mean, really, with all that’s going on with regard to gun violence, with all that’s going on with regard to the government about to be shut down, this is how we just spent all this time? I hope you’re all proud of yourselves.”

Rep. Tom Tiffany, R-Wisconsin took issue with the Democrats and said the resolution “recognizes our Second Amendment rights” and condemns the governor’s “unconstitutional order” prohibiting New Mexicans from carrying firearms throughout Bernalillo County. Tiffany said this:

“The order has nothing to do with public health and only serves to infringe New Mexicans’ rights while not preventing crime or violence. … You don’t have to take my word for it. … New Mexico Attorney General Raúl Torrez, a Democrat, warned only responsible gun owners are likely to abide by the ban. … This ban is not only bad policy detrimental to public safety, but it is blatantly unconstitutional. The Second Amendment is not a mere suggestion.”

New Mexico Congresswoman Teresa Leger Fernandez a member of the House Rules Committee, did not directly address the resolution during the Rules Committee meeting. Rather, she advocated for gun violence protection laws to keep children safe and Congress’ duty to pass a budget. Leger Fernandez said this:

“What we’ve done in the last few weeks here, when we have incredibly important work to do with regards to funding our federal government, is actually spent a lot of time in this chamber attacking the rights of states under existing law to do stuff. … We attacked California last week. This week, we ended up attacking my beloved New Mexico, and the reality is that gun violence is a tragic, tragic matter that affects every single one of our communities.”

Wisconsin Republican Congressman Tom Tiffany disputed the resolution was an attack on New Mexico and said this:

“That’s not it at all. … We’re rebuking the governor for trying to deny people their Second Amendment rights. This isn’t against the people of the state of New Mexico.”

CONDEMNATION RESOLUTION STALLS

On Monday, September 18, the Condemnation Resolution passed the Rules Committee and was expected to be voted upon by the full house on Tuesday September 19,  but that did not happen. According to news reports, what did happen is the resolution got caught up with the legislation dealing with the legislation to fund the federal government and the looming shutdown of the federal government.

According to a September 21 Albuquerque Journal report, a Republican spokesman who asked not to be identified, told the Journal that while there “wasn’t a problem specifically with the resolution” house Republicans assumed it would not pass so they pulled the resolution from the house floor in order to pair it with a defense spending bill that was voted down the same day. The move was to tell members of the Republican Freedom Caucus that “if your voting against the bill, your voting against the second amendment.” 

According to the news report, the condemnation resolution will again be taken up by the House  Rules Committee again to discuss what condemning the Governor actually does.

See September 21, Albuquerque Journal article entitled “House resolution condemning governor stalls”:

https://www.abqjournal.com/news/a-u-s-house-resolution-condemning-the-new-mexico-governor-for-her-temporary-gun-ban/article_3068984c-5754-11ee-941c-3788afa25248.html

NM DEMOCRATIC PARTY AND GOVERNOR LUJAN GRISHAM REACT

Daniel Garcia, a spokesman for the Democratic Party of New Mexico said this in a statement:

“Instead of focusing on a politicized non-binding resolution, [House Speaker] Kevin McCarthy and House Republicans should be doing their jobs and working with Democrats on the most consequential issue facing Congress today, avoiding a government shutdown. … But McCarthy and House Republicans would rather grandstand and distract while they hold the country hostage and send us further down the road toward a government shutdown.”

Governor Lujan Grisham’s office issued the following statement:

“Republicans in Congress have already shown they won’t lift a finger to get guns out of the wrong hands. … The fact is that they lack the courage to take on the National Rifle Association and far-right special interests. …  Gov. Lujan Grisham knew there would be challenges to her decision and people who didn’t understand the need for swift, bold action. … The governor is focused on what New Mexico needs right now, and what can be done to make people here safe. She is not focused on Washington D.C., and the grandstanding by Republicans who are trying to score political points rather than taking action on the national crisis of gun violence.”

The resolution now heads to the House floor for an expected vote.

The link to the quoted news source is here:

https://news.yahoo.com/vasquez-support-u-house-resolution-233400201.html

NEW MEXICO’S CONGRESSIONAL DELEGATION RESPONDS

All 3 of New Mexico’s members of the United States House of Representatives commented on how they intend to vote on the Republican Condemnation Resolution. Congressman Gabe Vasquez said he would vote YES while Congresswoman Melanie Stansbury and Congresswoman Teresa Leger said they would vote NO.

CONGRESSMAN GABE VASQUEZ

Congressman Gabe Vasquez, who is running for a second term and who is again running against former Congresswoman Yvette Harrell,  who he defeated in 2022,  said this:

“I plan to vote yes on House Resolution 684. As a responsible gun owner, I will continue to support common sense solutions that reduce gun violence, such as the Bipartisan Background Check Act and Ethan’s Law, in addition to the proposals we need to support in the state of New Mexico, like the Bennie Hargrove Gun Safety Act. …We must produce constitutional, legal and enforceable solutions that will help protect our children and our families.”

While Congressman Vasquez said he would vote for the resolution, he clarified in subsequent interviews that it’s less a condemnation of the governor and more about the need to protect the rights of gun owners. Vasquez said this:

“We need to focus the conversation on that and produce constitutional, legal, enforceable solutions that are going to help out children and our families. … I do appreciate the governor being able to actually bring this conversation to the forefront, because we can’t sustain this. … There are families that are suffering in places like Albuquerque and Bernalillo County.  They need to have a fair shot at living a safe life in their neighborhoods and in their communities. … The fact that we’re even voting on this in Congress right now is a little bit…ridiculous. … When we have to keep the government open, we just can’t focus on this stuff. …

When Vasquez was asked if he made the decision to vote “yes” based on the fact he is running for a second term, he said this:

“I will always represent my constituents in this district that feel the same way that I do. And so this had no impact on the re-election for this particular race in the district that I’m running.”

Former Congresswoman Yvette Herrell who is running against Vasquez said this:

“It’s unfortunate that it took 11 days and a literal act of Congress to shame Gabe Vasquez into condemning the governor’s blatant violation of our constitutional rights. When I’m in Congress, New Mexicans will never have to guess where I stand when it comes to protecting the Second Amendment.”

CONGRESSWOMAN TERESA LEGER FERNANDEZ

U.S. Rep. Teresa Leger Fernandez who represents northern New Mexico’s Second Congressional District, as she participated in the committee debate, made it clear she believes the resolution is distracting lawmakers from addressing the looming shutdown. Leger Fernandez said this

“We have federal responsibilities to the American people, including those who are working for the federal government, relying on what the federal government needs to get done, and in states like mine that require and depend on federal action. … This week, we ended up attacking my beloved New Mexico. And the reality is that gun violence is a tragic matter. … People want to make sure that guns don’t fall in the hands of those who have it. And the easiest thing is to do a universal background check.”

CONGRESSWOMAN MELANIE STANSBURY

Albuquerque area Progressive Democrat Congresswoman Melanie Stansbury announced that she would not be voting with Republicans and would not vote for the resolution condemning the Governor. Stansbury said this:

“I will vote NO on the GOP’s efforts to undermine New Mexico’s executive and distract from House Republican’s complete inability to govern and pass a budget as they careen the U.S. government towards a shutdown. As millions face the prospect of not knowing how they’ll pay their bills, extremists in the GOP are pulling political stunts rather than addressing the needs of the American people, including the epidemic of gun violence. New Mexicans understand that and know we must take action.”

COMMENTARY AND ANALYSIS

The blunt truth is that the Congressional Condemnation Resolution is nothing but a publicity stunt by the Republican Freedom Caucus.  The resolution is as “useless  as teats on a boar hog” other than to give oral gratification to someone, which in this case is the Republican Freedom Caucus. The United States Congress has no authority over Governor Lujan Grisham, it can not strip her of any of her powers or authority, it can not impeach her. Even if passed by the House, it would not be forwarded to the Senate for a vote where it would likely fail.  It amounts to nothing more than a press release and a written tongue lashing and one big waste of time.

FREEDOM CAUCUS STRANGLE HOLD OVER CONGRESS

There are 435 voting members and 6 non-voting members in the United State House of Representatives with 218 constituting a majority who elect the Speaker of the House who appoints all committee chairpersons. The current majority is 221 Republicans and the minority is 212 Democrats with 2 vacancies.

Complicating matters for the Republican majority is the Republican Freedom Caucus members and allies who are among the most conservative of House Republicans. Most Freedom Caucus members fall on the far-right end of the spectrum.  They refuse to compromise on the issues of abortion, gun control and demands for spending cuts. They are the epitome of MAGA Republicans and all things Donald Trump. Former Congresswoman Yvette Herrell was member of the Republican Freedom Caucus and she is a staunch supporter of Donald Trump. Former Congressman Steve Pierce and now New Mexico Republican Party Chairman was also member of the Freedom Caucus and he too  is a staunch Trump supporter.

It took an historic 15 ballots for Speaker of the House Kevin McCarthy to win the speaker’s gavel, but not until he agreed to ensure more Freedom Caucus representation on the powerful Rules Committee and other key panels.  It was the Rules Committee that voted on the Resolution to condemn Governor Michelle Lujan Grisham and who have made it a part of the continuing resolution to keep the government funded.

MOTIVATION OF CONDEMNATION RESOLUTION

It does not take a rocket scientist to figure out exactly why the Republicans in the United States House of Representative are doing their damndist  to condemn the actions of Democratic Governor Michelle Lujan Grisham. It has nothing to do with what is in best of the State of New Mexico and its people, which they could not careless about, but everything to do with their efforts to retain their control of the House of Representatives.

Their efforts all centers on Republican motivation to keep control of the United States House of Representatives by making sure they help return to congress one of their most ultra right-wing conservatives and former member of the congressional Freedom Caucus Yvette Herrell.

Confidential sources have confirmed that former Freedom Caucus members Steve Pierce and Yvette Herrell called in a few favors to have the condemnation resolution introduced.  Pierce and Herrell did so for two major reasons:

First: Disparage Governor Lujan Grisham and drive her approval ratings down in New Mexico and perhaps derail her possible future Presidential appointments.

Second:  Force Congressman Gabe Vasquez to go on record as supporting gun control measures in order to gin up opposition to him by both Democrats and Republicans who are Second Amendment advocates.

A VULNERABLE CONGRESSMAN

Congressman Gabe Vasquez is considered one of the most vulnerable House Democrats seeking reelection in 2024. His vulnerability should not come as any surprise to anyone seeing as Vasquez beat Congresswoman Yvette Herrell by a mere 1,350 votes, or by less than 1%, of the vote, in 2022 in an upset victory. His election was fueled in part by the congressional redistricting that included portions of Albuquerque’s South Valley in the Second Congressional Districts. The partisan lean of the 2nd Congressional District has gone from plus 14% Republican to plus 4% for the Democrats following redistricting.

Congressman Gabe Vasquez has only been in office 9 months.  He has been very deliberate and cautious not to come across as too progressive or too supportive of President Joe Biden in order not to offend many of his more conservative constituents. Vasquez has twice failed to appear with President Biden when he has visited the state in the last year. The cautious approach is the identical strategy used by former Democratic House embers  Xochitl Torres Small and Harry Teague who both lost the seat after just one term to their Republican opponents Steve Pierce and Yvette Harrel respectively.

The Congressional Resolution condemning Governor Michelle actions declaring gun violence and illegal drugs a public health emergency and the Emergency Health Orders banning the carrying of firearms has placed Congressman Gabe Vasquez in an awkward position. Not to support the resolution would expose him to Republican attacks portraying him as anti-Second Amendment by voting against the resolution.

By voting in support, Vasquez will take heat from some from Democrats statewide, but his narrative will be that he’s showing he’s not just a rubber stamp for the Democratic party. What will help give him cover is the fact that prominent Democrats in law enforcement have also said they oppose the Governor’s orders.  Democrats Attorney General Raul Torrez, District Attorney Sam Bregman and Bernalillo County Sherriff John Allen have said they will not enforce nor defend the Governor’s Emergency Health Orders believing them to violate the US Constitution and the Second Amendment. The fact that United States District Court Judge David Urias issued a retraining order declaring two provisions of the Emergency Health Order unconstitutional gives Vasquez further cover.

A DEAD HEAT POLL

On September 18,  KOB-TV released an exclusive poll it commissioned with SurveyUSA. According to the poll former Republican Congresswoman Yvette  Herrell leads Democrat  Gabe Vasquez by a single percentage point with 46% to 45% with a margin of error of 4.8 percent reflecting a dead heat race.  9% said they were undecided.  The poll was done September 6-12 among 541 likely voters.

Pollster Ken Alpher says voters have a good idea of what to expect from Herrell and Vasquez.  Alpher said this:

“They’re known quantities. … It’s absolutely possible that something could happen, there could be a huge story, somebody could flub a debate, or anything that could make a huge difference.”

Quoting the poll:

“Democrat Gabe Vasquez defeated one-term Republican Yvette Herrell by just 1,350 votes in the 2022 election for United States House of Representatives in New Mexico’s 2nd Congressional District … and SurveyUSA’s first polling on the 2024 election rematch between the same two candidates indicates, at least at this early date, that little has changed for voters here.

SurveyUSA’s exclusive polling for KOB 4 in Albuquerque today shows a dead heat, 46% to 45%, with Herrell the nominal single point atop Vasquez, and 9% of likely voters saying they are undecided. Each candidate has effectively identical net favorability ratings, with Herrell at +6 (38% favorable, 32% unfavorable) and Vasquez at +5 (33% favorable, 28% unfavorable).

Among men, Herrell leads by 13 points; among women, Vasquez leads by 9, a 22-point gender gap. White voters back the Republican by an 11-point margin; non-white voters support Vasquez by 7. Herrell is up by 12 points among likely voters with high school educations and by 7 among those who have some college; Vasquez leads by 11 among those with 4-year college degrees. Regionally, Vasquez leads by 12 points in urban parts of the district and has a very slight 3-point edge in the suburbs; Herrell leads by 18 points in the rural plurality of the district.”

The link to the SurveyUSA poll is here:

https://www.surveyusa.com/client/PollReport.aspx?g=c822b950-c017-4832-90db-9842e97a28a7

The link to KOB TV news report is here:

https://www.kob.com/new-mexico/buckle-up-new-mexico-4-investigates-poll-shows-neck-and-neck-for-herrell-vasquez/

CONCLUSION

There is absolutely no doubt that Republicans are salivating over the prospect that former Republican Congresswoman Yvette Herrell will repeat history and again defeat another first term Democratic Congressional Representative.  No matter what the polls say now what looms large over the race is Donald Trump. A lot  can and will happen in a very volatile election year.

If Trump is fact the Republican nominee  he will  impact the race. A landslide loss or victory by former President Donald Trump in New Mexico will likely decide the outcome of the race between Vasquez and Herrell.

Links to quoted news sources are here:

https://www.santafenewmexican.com/news/local_news/n-m-democrat-will-support-gop-backed-resolution-condemning-governors-gun-ban/article_746436b4-567d-11ee-bb7a-ef22313f22b2.html

https://gazette.com/news/wex/vulnerable-democratic-house-member-forced-to-condemn-governors-gun-restriction/article_34caa1a8-345d-523f-ba7d-4e112c218385.html

https://www.koat.com/article/rep-gabe-vasquez-will-vote-to-condemn-governor/45214373

https://www.koat.com/article/house-representatives-condemn-governors-actions-new-mexico/45212937

https://www.kob.com/new-mexico/rep-gabe-vasquez-to-vote-yes-to-condemn-mlgs-public-health-order/?utm_medium=onsite&utm_campaign=thumbnails&utm_source=zetagloba

https://www.koat.com/article/house-committee-condemn-new-mexico-governor/45196288#

https://www.kob.com/new-mexico/rep-gabe-vasquez-to-vote-yes-to-condemn-mlgs-public-health-order/

https://www.krqe.com/news/new-mexico/new-mexico-lawmakers-weigh-in-on-congressional-action-against-governor/

Republican Leadership Call For Special Session To Enact Crime And Punishment Laws Ignoring Gun Control Measures; Democratic Leadership Refuse To Acknowledged Crime And Punishment Necessary To Reduce Crime; Call Special Session And Enact “Omnibus Gun Control And Violent Crime Sentencing Act” 

On Friday, September 8, Governor Michelle Lujan Grisham declared gun violence and illegal drugs a public health emergency with the issuance of a sweeping Emergency Public Health Care Order.  The original Emergency Public Health Order banned the carrying of firearms, concealed or openly, in any public space in Bernalillo County and any state property in New Mexico. The link to the September 8 Emergency Health Order is here:

Click to access 090823-PHO-guns-and-drug-abuse.pdf

The September 8 Emergency Public Health Order was issued in response to recent shootings, including the death of an 11-year-old boy outside Isotopes Park in a road-rage incident and the shooting death of a 5-year-old girl who was asleep in a mobile home. The governor also cited the shooting death in August of a 13-year-old girl in Taos County.

During the one week after the Emergency Public Health Care Orders were issued, all hell broke loose consisting of protests by armed citizens, federal and state lawsuits filed, a federal court hearing on a temporary restraining order, calls for impeachment, and calls for a special session to deal with the state’s high violent crime rates.

On Friday, September 15, Governor Michelle Lujan Grisham, held a news conference and announced an Amended Public Health Emergency Order. The amended order scales back the original order by banning firearms only in “public parks and playgrounds” where children and their families gather.  The amended order eliminates sweeping bans on the public carry of firearms in Albuquerque and Bernalillo County. The link to the September 15 Emergency Health Order is here:

Click to access NMAC-EO-2023-130-132-Amended.pdf

REPUBLICAN LEADERSHIP CALL FOR SPECIAL SESSION

On September 15, the NM House Republican Caucus, the NM Senate Republican Caucus and the Republican Party of New Mexico in response in part to the Governor’s Emergency Heath Orders issued a press release calling on Governor Lujan Grisham to immediately convene the Legislature in Special Session to deal with crime or force an Extraordinary Session by petition. In the press release, the Republicans listed 10 crime bills they sponsored that were introduced in the 2023 session that failed to be enacted blaming the Democrat majorities in both chambers,

In their press release, the Republicans said in part:

“The New Mexico House Republican Caucus …  calls on Governor Lujan Grisham to immediately convene the Legislature in Special Session … to address the crime crisis in New Mexico. Absent action by the Governor to immediately address crime through the proper legislative channel, House Republicans are prepared to circulate a petition to convene the State Legislature in Extraordinary Session.   …  

“It is disingenuous for anyone to assert that Republicans ‘have no plan to tackle crime,’ said House Republican Leader Ryan Lane (Aztec). … Our Caucus has been fighting to address this growing crisis only to be ignored by Democrats in the Legislature. If Democrats are truly serious about crime, then let’s come back to Santa Fe and quickly pass these bills.”

The list of bills provided by the Republicans that failed during the 2023 legislative session are as follows.

  • HB 509 Pretrial Detention Presumption.  The bill provides a process of presenting cases where the defendant should be detained prior to trial and also provides due process protections for the defendants
  • HJR 9 Denial of Bail.  The bill would have allowed the legislature to set conditions under which defendants may be denied bail
  • HB 58 Additional Violent Felonies.  The bill would have added 12 additional crimes to the list of qualifying charges for New Mexico’s three strikes law.
  • HB 59 Unlawful Firearms While Trafficking. The bill would have created a 3rd degree felony of unlawful carrying of a firearm while trafficking a controlled substance.
  • HB 60 Enhanced Sentencing for Fentanyl.  The bill would have created a sentencing enhancement for fentanyl possession: 3-year enhancement for 24-49 pills. 5-year enhancement for 50-74pills and 7-year enhancement for greater than 75 pills.
  • HB 61 Felons in Possession of a Firearm. The bill would have increased sentence from 3 to 6 years in prison for felon in possession and up to 6 years if the felony offense constituted a violent offense
  • HB 155 Aggravated Battery on a Peace Officer. The bill would have made  the crime of aggravated battery against a peace officer a second degree felony (nine years and up to $10,000) instead of a third degree felony (three years and up to $5,000), if the battery inflicts great bodily harm or is done with a deadly weapon or in any way that inflicts great bodily harm or death
  • HB 341 Court-Ordered Drug or Health Treatment. The bill would have require the courts to determine if a criminal may require drug, alcohol, or mental health treatment, and order the defendant to seek that treatment
  • HB 458 Felons and Firearms Penalties. The bill would have increased the penalty for a felon in possession of a firearm or destructive device from three years imprisonment, an ordinary third-degree felony, to five years imprisonment, and seven years for a serious violent felon.
  • HB 485 Child Sex Offense Penalties.  The bill would have enhanced penalties for sexual exploitation of children, among other statutory changes.

DEMOCRAT GUN CONTROL MEASURES OPPOSED BY REPUBLICANS

As the NM House and Senate Republican Leadership remind Democrats of failed crime legislation they sponsored in the 2023 legislative session, the Republicans in turn need to be reminded of all the gun control measures Republicans refused to support in the same 2023 legislative session.

In the 2023 New Mexico 60-day legislative session, upwards of 40-gun control measures were introduced, but only 10 were seriously considered and of those 10, only 2 made it through the session to become law.

When the session began on January 17, Governor Michelle Lujan Grisham in her “State of the State” address  announced  her support of the following 4 gun control measures:

  • Banning the sale of AR-15-style rifles.
  • Allowing crime victims to sue gun manufacturers.
  • Making it a crime to fail to properly secure a firearm that’s accessible to an unsupervised minor.
  • Closing a loophole in state law to allow prosecution when a person buys a gun for a someone who isn’t legally able to make the purchase themselves, a transaction known as a straw purchase.

Only two of the four measure’s the Governor endorsed were enacted by the legislature. The two measures enacted and signed into law were:

  • House Bill 9,  the Bennie Hargrove Gun Safety Act also know as “Bennies Bill” makes it a misdemeanor to negligently allow a child access to a firearm and would make it a felony if that negligence resulted in someone dying or suffering great bodily harm.
  • House Bill 306 that is directed at “straw purchases” of firearms and making it illegal to buy a firearm on behalf of someone who’s not allowed to have it or intends to use in a crime. During the March 6 signing of House Bill 306 making it law, Lujan Grisham highlighted the role of House Republican Leader Ryan Lane of Aztec in getting the bill passed.  Lane was the lead sponsor of the measure resulting in other Republican support which is an absolute a rarity for any firearms legislation.

GUN CONTROL MEASURES THAT FAILED

There were 10 major gun-control measure bills introduced and seriously considered in the New Mexico House or Senate, all opposed by the Republicans.  Eight of the measure failed and those measures were:

  • House Bill 50 would have prohibited magazines with more than 10 rounds.
  • House Bill 72 would have prohibited the possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.
  • House Bill 100 would have established a 14-day waiting period for the purchase of any firearm and requires a prospective seller who doesn’t already hold a valid federal firearms license to arrange for someone who does to conduct a federal background check prior to selling a firearm.
  • House Bill 101 as written would have made it a fourth-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.  It would restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms.
  • Senate Bill 44 would have made it a misdemeanor to carry a firearm within 100 feet of a polling location on election day or during early voting. On-duty law enforcement officers and security personnel would be exempt.
  • Senate Bill 116 would have established a minimum age of 21 for anyone seeking to purchase or possess an automatic firearm, semiautomatic firearm or firearm capable of accepting a large-capacity magazine. The bill would have effectively raised the minimum age for buying an AR-15-style rifle from 18 to 21.
  • Senate Bill 171 sought to ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.
  • Senate Bill 428 would have revised the state’s Unfair Practices Act to target the sale of illegal firearms and parts, allowing the filing of lawsuits to enforce the act.

CRIME AND PUNISHMENT AND GUN CONTROL

The backdrop to all the proposed NM Republican “crime and punishment” legislation measures as well  NM Democrat “gun control” legislation  measures that were considered by the 2023 New Mexico legislature are New Mexico’s and Albuquerque’s high crime rates as well as the proliferation of gun violence.

PROLIFERATION OF GUNS

Discussion of gun violence and crimes must begin with the astonishing proliferation of guns in the United States and in New Mexico In 2023, it is estimated the United States now exceeds 400 million guns.  To put this in perspective, there are 53,267-gun shops and only 15,876 Macdonald’s in the U.S.

https://robarguns.com/gun-sales-in-the-us-by-state

About 81 million Americans, or 31% of all adults, own an average of 5 guns each.

https://americangunfacts.com/gun-ownership-statistics/

Americans own nearly half (46%) of all civilian-owned guns worldwide, and we own more per capita  than any other country on earth.

https://www.cnn.com/2017/10/03/americas/us-gun-statistics/index.html

MASS SHOOTINGS

The Gun Violence Archive is an online archive of gun violence incidents collected from over 7,500 law enforcement, media, government and commercial sources daily in an effort to provide near-real time data about the results of gun violence. GVA is an independent data collection and research group with no affiliation with any advocacy organization. Gun Violence Archive (GVA) is a not-for-profit corporation formed in 2013 to provide free online public access to accurate information about gun-related violence in the United State.

The Gun Violence Archive defines a MASS SHOOTING as four or more people, excluding the shooter, being shot.

https://www.gunviolencearchive.org/about

Over a 35-year period, during the five administrations between Presidents Ronald Regan and Barack Obama (1981-2016), there was an average of 44 mass shooting victims per year with 22 deaths and 22 injuries. During the first three years of Donald Trump’s administration (2017-2019) the United States witnessed a nearly 900% increase in total deaths and injuries in mass shootings, per year, to 377 annually (108 deaths and 269 injuries).

The Gun Violence Archive (GVA) reported that there were over 5,000 more fatal shootings during Joe Biden’s first year in office compared to Donald Trump’s first year as president.  According to the Gun Violence Archive, the United States saw 44,868-gun deaths in Biden’s first year as president. The total number of murders, justifiable self-defense homicides, and accidental homicides involving firearms were 20,783 in 2021, compared to 15,727 in 2017 when Trump took office.  This means that in the past few years alone, gun violence has increased by 32%.

https://www.wionews.com/world/trump-vs-biden-gun-violence-in-joe-bidens-us-sees-a-sharp-escalation-447054

As of May 21, 2023, the year has seen more mass killings to date than any other year since data collection started in 2006.

https://apnews.com/article/mass-shooting-anniversary-uvalde-buffalo-325b8649c7d34577051ed4118b8dbac4

https://apnews.com/article/mass-killings-record-pace-2023-d685a6cd67e0f449f3f9d1d8713d451c

On May 15, 2023, New Mexico had a mass shooting when 9 people were injured or killed by an 18-year-old male armed with an AR-17 style rifle in a mass shooting in Farmington, New Mexico.  Three women over the age of 70 were killed and 2 police officers injured. The 3 fatal shooting victims were identified as 79-year-old Shirley Voita, 73-year-old Melody Ivie, and 97-year-old Gwendolyn Schofield. Schofield and Ivie were mother and daughter. Police identified the suspect as 18-year-old Beau Wilson who was shot and killed by police.  He was suffering from mental illness and went on a rampage.

According to data compiled by the Gun Violence Archive, 2023 is on pace to become the deadliest year for mass shootings in recent history.  As of July 4, the U.S. has reported 346 mass shootings. This is the earliest in any year the gruesome milestone has been reached since the Gun Violence Archive began tracking them in 2014.  The statistics works out to nearly 1 mass murder per week in the first half of 2023.

GUN VIOLENCE DEATHS

After reviewing the proliferation of guns in the United States, the number of HOMICIDES, the number of SUICIDES the number of GUN VIOLENCE DEATHS, and the number of MASS SHOOTINGS involving guns is in order to fully understand the crisis:

According to the “Gun Violence Archive” the number of HOMICIDES over the last 4 years were as follows:

  • 2019: 15,516
  • 2020: 19,580
  • 2021: 21,020
  • 2022: 20,272

The number of SUICIDES over the last 4 years were as follows:

  • 2019: 24,090
  • 2020: 24,156
  • 2021: 24,090
  • 2022: 24,090

The number of GUN VIOLENCE DEATHS over the last 9 years were as follows:

  • 2014: 12,354 deaths
  • 2015: 13,577 deaths
  • 2016: 15,148 deaths
  • 2017: 15,750 deaths
  • 2018: 14,941 deaths
  • 2019: 39,606 deaths
  • 2020: 43,736 deaths
  • 2021: 45,110 deaths
  • 2022: 44,362 deaths

The number of MASS SHOOTINGS over the last 9 years were as follows:

  • 2014: 272 mass shootings
  • 2015: 336 mass shootings
  • 2016: 383 mass shootings
  • 2017: 348 mass shootings
  • 2018: 336 mass shootings
  • 2019: 415 mass shootings
  • 2020: 610 mass shootings
  • 2021: 690 mass shooting
  • 2022: 646 mass shootings
  • 2023: 346  Mass Shootings (January 9, to July 4, 2023)

As of June 23, 2023 the total number of gun violence deaths stood at 20,416, homicides stood at  8,932, suicides stood at 11,484.  As of July 4, 2023, the total number of MASS SHOOTING stood at 346. 

https://www.businessinsider.com/2020-more-gun-deaths-than-any-year-over-two-decades-2021-3

https://theconversation.com/mass-shootings-in-the-us-have-risen-sharply-in-2020-why-150981

NEW MEXICO FIREAREM OWNERSHIP AND CRIME STATISTICS

New Mexico’s firearm ownership and fatality rates are  among the nation’s highest. In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% higher than the national average according to the think tank Rand Corp. In 2020, New Mexico had the nation’s second-highest violent crime rate.

2021 NEW MEXICO CRIME STATISTICS

New Mexico’s firearm fatality rate is among the nation’s highest. According to the New Mexico Department of Health, there were a total of 562 state residents who died in 2021 due to firearm-related injuries.

This figure is up significantly from the 481 firearm-related deaths in 2020. Of the 562 state residents who died in 2021 due to firearms, 319 cases, were classified as suicides and 243 were classified as homicides.

In 2021 New Mexico law enforcement reported over 28,000 crimes against persons. That includes crimes such as murder, rape, assault, and kidnapping. In 2021, FBI data showed for every 100,000 people in New Mexico, law enforcement reported 2,189 crimes against persons. The only state with a higher rate was Arkansas, which reported 2,276 crimes per 100,000 people.

In 2021 New Mexico law enforcement agencies reported nearly 25,500 instances of assault. That’s 1,872 more than the state reported in 2020. New Mexico law enforcement also reported more homicides in 2021 than the year before.

In 2021 across New Mexico, police reported 193 homicides to the FBI.  That’s 67 more than in 2020.  Not at all surprising is that the majority of the state’s reported homicides were in Albuquerque.

In 2021, New Mexico law enforcement reported to the FBI 822 kidnappings and abductions to the FBI. That put New Mexico at the top of the list regarding kidnappings and abductions per 100,000 people. Kansas, Colorado, and Utah also rank high on the list of kidnappings and abductions per population.

2022 NEW MEXICO CRIME STATISTICS

“Safe Wise” is a national private company that reviews, rates and promotes private home security systems and products. It conducts national surveys on crime statistics and trends and publishes a newsletter on it findings.

https://www.safewise.com/about/#:~:text=SafeWise%20streamlines%20it%20for%20you,they’re%20worth%20your%20time.

On March 13, 2023, Safe Wise published a “State of Safety Report” for New Mexico.  Following are edited notable excerpts from the report:

“New Mexico continues to have higher-than-average crime rates across the board.  … [T]he good news is that both property and violent crime rates are declining year over year. Violent crime fell from 8.2 incidents per 1,000 people to 7.8  but that still gives New Mexico the second-highest violent crime rate in the US, behind Alaska with 8.4 incidents per 1,000.

Property crime fell from 31.8 incidents per 1,000 people to 28.4. New Mexico is one of just a dozen states to see declines in both violent and property crime, but fewer cities reporting crime data to the FBI may also be a factor.”

VIOLENT CRIME IN NEW MEXICO: FEAR VS. REALITY

“New Mexicans have the 8th highest level of concern about violent crime in the nation with 58% of our State of Survey respondents indicating they worry about it on a daily basis. Concern about gun violence is just a tad lower with 57% of the population reporting daily concern.

  • 31% of people in New Mexico reported feeling safe in their state compared to 50% of Americans. Only the residents of Illinois and New York feel less safe in their states.
  • 15% of New Mexicans reported having a personal experience with violent crime in the 12 months prior to our survey, which matches the national average but represents an increase of 200% year over year for New Mexico.
  • 42% of survey participants report using some form of personal protection— above the US average of 39%. Pepper spraywas the most popular personal safety device carried.
  • 48% of New Mexicans say their personal safety has been affected by the COVID-19 pandemic compared to 44% of Americans.”

ATTITUDES ABOUT GUN VIOLENCE IN NEW MEXICO

  • “57% of New Mexico respondents named gun violence as a top safety concern—well above the US average of 47%.
  • 16% of residents reported experiencing gun violence in the 12 months prior to the survey, up from 5% in our previous report.
  • Mass shooting incidents increased 300% in New Mexico during the 2023 reporting year, rising from 1 to 4.
  • Firearms are the third-most common method used for both personal safety and property protection in New Mexico.”

 The link to review the full unedited Safe Wise report is here:

https://www.safewise.com/blog/safest-cities-new-mexico/

ALBUQUERQUE CRIME RATES

Albuquerque is at the forefront of New Mexico’s high violent crime rate.  According to legislative data released, the city had about half of the state’s violent crime in 2022 but has just 25% or so of its total population.

The Albuquerque Police Department reported that in November, 2022 gun law violations spiked 85%. The last two years have also been two very violent years for Albuquerque.  The number of homicides in the city have broken all-time records.   In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114.  In 2022, there were 120 homicides, a historical high.

On Thursday, March 16, 2023 the Albuquerque Police Department (APD) released the 2022 crime statistics along with crime statistics for 2022 for a comparison. During his March 16 press conference announcing the City’s 2022 crime statistics, APD Chief Harold Medina embellished that a  3% drop in  overall total of crime and a 4% decrease in Crimes Against Persons and the 2% decrease in Crimes Against Property was positive movement.  The slight 3% decrease in overall crime was over shadowed by the 24% spike in CRIMES AGAINST SOCIETY which are largely made up of drug and gun offenses and a 71% increase in murders over the last 6 years.

Chief Medina revealed that over the last 6 years, Albuquerque has had a dramatic 71% spike in homicides.  The number of homicides reported over the last 6 years is as follows:

  • 2017: 70 homicides
  • 2018: 69 homicides
  • 2019: 80 homicides
  • 2020: 78 homicides
  • 2021: 110 homicides
  • 2022: 120 homicides

On March 16, in addition to reporting that there has been a 71% spike in homicides, APD officials reported that over the past 6 years there has been a 28% increase in Aggravated Assaults which by definition includes the use of a firearms. Following are the Aggravated Assaults numbers:

  • 2017: 4,213
  • 2018: 5,156
  • 2019: 5,337
  • 2020: 5,592
  • 2021: 5,669
  • 2022: 5,399

Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021.  These numbers place Albuquerque among America’s most dangerous cities.

Click to access MCCA-Violent-Crime-Report-2022-and-2021-Midyear.pdf

https://www.koat.com/article/albuquerque-homicide-rate-increase/43702586

COMMENTARY AND ANALYSIS

NM House Republican Caucus, the NM Senate Republican Caucus and the Republican Party of New Mexico are always quick to proclaim that they are the “law and order” party as they concentrate on criminal offense laws, propose increases in penalties and say “lock them up and throw away the key.” Second Amendment advocates like to proclaim “guns do not kill, but people kill people” refusing to acknowledge that the proliferation of guns is a major crisis contributing to high violent crime rates.  New Mexico Democrats on the other hand believe that responsible gun control legislation will reduce the availability of guns and in return reduce violent crimes ignoring the importance of prosecution and punishment to reduce violent crime.

There is absolutely no doubt that gun violence and violent crime are out of control in Albuquerque and in the state driven by the proliferation of guns and illicit drugs. Notwithstanding, Governor Michelle Lujan’s Grisham’s Executive Oder as well as the Public Health Care Order are misguided and they are unconstitutional.  Simply put, there is no such thing as a state public health emergency exception to the United States Constitution. The orders are so broad as to be a clear violation of US Constitutional Rights and the Second Amendment Right to Bear Arms. The blunt reality is that the Governor’s Executive Order and Public Health Order will not result in reducing gun violence nor address the proliferation of guns.

The Governor says she thinks she has seen more attention on resolving the crisis of gun violence than she has ever seen in the past four years because of her Executive Order and Emergency Health Orders. Really, Governor, really? The Governor seems to have totally forgotten about the Farmington killings in May of this year that generated talk of a special session.  On May 15, nine people were injured or killed by an 18-year-old male armed with an AR-17 style rifle in a mass shooting in Farmington, New Mexico.  Three women over the age of 70 were killed and 2 police officers injured. The 3 fatal shooting victims were identified as 79-year-old Shirley Voita, 73-year-old Melody Ivie, and 97-year-old Gwendolyn Schofield. Schofield and Ivie were mother and daughter. Police identified the suspect as 18-year-old Beau Wilson who was shot and killed by police.  He was suffering from mental illness and went on a rampage.

The truth is the Governor’s orders have accomplished nothing other than ginning up Republican and Second Amendment Rights advocates ire that in turn will contribute nothing to the discussion of real solutions to the state’s gun violence and high violent crime rates.  Rather than issuing executive orders declaring a public health crisis that were ostensibly a knee jerk reaction to the killing of a child in a road rage incident, the Governor’s efforts would be better spent on proposing meaningful legislation she wants in the upcoming 2024 legislative session which begins on January 16, 2024.  The session is the 30 short sessions where the Governor will dictate what measures can be considered.

If Governor Lujan Grisham and Republican and Democratic leadership are indeed sincere about the State’s crime crisis and want more immediate action, a Special Session of the New Mexico Legislature should be convened for the propose of enactment of an “Omnibus Gun Control And Violent Crime Sentencing Act.”  A political compromise and trade off between crime and punishment measures and gun control measures should be negotiated that Democrats, Republicans and Independents can live with. The message that must be sent out loud and clear to violent criminals by our elected officials is that New Mexico has a zero tolerance of violent crimes committed with firearms and responsible gun control laws are needed to reduce the proliferation of guns.

CRIME AND PUNISHMENT MEASURES

The following crime and sentencing provisions should be included in the “Omnibus Gun Control And Violent Crime Sentencing Act”:

  1. Allow firearm offenses used in a drug crime to be charged separately with enhance sentences.
  2. Making possession of a handgun by someone who commits a crime of drug trafficking an aggravated third-degree felony mandating a 10-year minimum sentence.
  3. Increase the firearm enhancement penalties provided for the brandishing a firearm in the commission of a felony from 3 years to 10 years for a first offense and for a second or subsequent felony in which a firearm is brandished 12 years.
  4. Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is blandishment of a deadly weapon in the commission of a felony with enhanced sentences of 5 years for a first offense and for second or subsequent felony in which a lethal weapon other than a firearm is brandished 8 years
  5. Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.
  6. Increase the penalty and mandatory sentencing for the conviction of the use of a fire arm during a road rage incident to a first-degree felony mandating a life sentence.
  7. Change bail bond to statutorily empower judges with far more discretionary authority to hold and jail those pending trial who have prior violent crime reported incidents without shifting the burden of proof from the prosecution to the defense.

GUN CONTROL MEASURES

Gun control measures that should be included the “Omnibus Gun Control And Violent Crime Sentencing Act” would include legislation that failed in the 2023 legislative session and other measures and would include the following:

  1. Call for the repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby, but what is the real rational for allowing side arms and rifles to be carried down the street other than to intimidate others. 
  2. Restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms and make it a fourth-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.
  3. Prohibited magazines with more than 10 rounds.
  4. Prohibited the possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.
  5. Established a 14-day waiting period for the purchase of any firearm and requires a prospective seller who doesn’t already hold a valid federal firearms license to arrange for someone who does to conduct a federal background check prior to selling a firearm.
  6. Established a minimum age of 21 for anyone seeking to purchase or possess an automatic firearm, semiautomatic firearm or firearm capable of accepting a large-capacity magazine.
  7. Ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.
  8. Revised the state’s Unfair Practices Act to target the sale of illegal firearms and parts, allowing the filing of lawsuits to enforce the act.
  9. Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
  10. Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
  11. Mandate the school systems and higher education institutions “harden” their facilities with more security doors, security windows, and security measures and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.

ESTABLISH MENTAL HEALTH AND DRUG TREATMENT COURT

One major component that is always discussed when it comes to mass shootings and crime involves the failure of our mental health and drug treatment system. New Mexico is also seriously lagging in having sufficient mental health treatment facilities.  The New Mexico legislature should  create and fully fund a mental health and drug treatment court to concentrate on civil mental health commitment hearings and build 3  mental health commitment hospitals in the 3 largest communities in the state. The civil mental health commitment court would be staffed with District Attorneys and Public Defenders with a Specialty Court under the supervision of the New Mexico Supreme Court and with enforcement of the states civil mental health commitment statutes.

FUNDING REQUIRED

On August 23, 2023 New Mexico Secretary of Finance and Administration Wayne Propst briefed lawmakers on New Mexico’s revenues and the status of the state’s financial reserves used to help state government pay its bills.  Propst was joined by economists from the legislative and executive branches of government to share the revenue forecast.  The briefing was one of many that will occur to assist law makers in drafting the state’s annual budget before the 2024 legislative session that will begin on January 16, 2024.

Secretary Propst told lawmakers that New Mexico’s financial reserves have reached upwards of 52% of ongoing state spending this summer resulting in a financial cushion of nearly $4.4 billion.  The financial cushion is being fueled by the incredible oil and gas boom and along with strong consumer spending generating gross receipts tax revenues. The windfall is expected to continue. New Mexico law makers can no longer give the excuse that there is no funding to fully  fund our criminal justice system and now is the time to act.

The Omnibus Gun Control And Violent Crime Sentencing  Act Omnibus Gun Violence And Sentencing  Act  must include funding for the criminal justice system. This would include funding District Attorney’s Offices, the Public Defender’s Office, the Courts and the Corrections Department and law enforcement departments across New Mexico.

Links news materials are here:

https://www.krqe.com/news/politics-government/new-mexico-eyeing-nearly-3-5-billion-in-extra-money/

https://www.kob.com/new-mexico/oil-and-gas-industry-bringing-billions-to-new-mexico-in-the-next-year/

https://www.abqjournal.com/news/unprecedented-times-nm-revenue-boom-to-generate-3-5b-in-new-spending-capacity/article_8ae4aa60-41d6-11ee-8a60-bf79134b7d0b.html#tncms-source=home-featured-7-block

FINAL COMMENTARY

Until the Governor and the New Mexico legislature get serious about New Mexico’s gun violence crisis and enacts reasonable gun control measures in conjunction with crime and punishment measures, we can expect our violent crime rates to continue to increase, and God forbid, yet another killing of a child which is what prompted the Governor to issue her executive orders in the first place.

Below are links to related Dinelli blog articles:

Gov. MLG Amends Public Health Emergency Order On Temporary Gun Ban; NRA And Republican Party Align To File Separate State Law Suite To Kill Gov’s Gun Ban Entirely; Republican Legislative Leaders and 4 City Councilors Call For Special Session; “When In A Hole, Stop Digging!”

­­­­­­­­https://www.petedinelli.com/2023/09/18/gov-mlg-amends-public-health-emergency-order-on-temporary-gun-ban-nra-and-republican-party-align-to-file-separate-state-law-suite-to-kill-govs-gun-ban-entirely-republicans-lead/

Federal Judge Issues Temporarily Restraining Order Blocking Enforcement Of Two Provisions of Gov. MLG’s Ban On Carrying Guns In Public; TRO Includes Provision On Possession Of Firearms On State Property, Public Schools, And Public Parks; More State Police To City; Gov. Should Rescind Orders And Seek Omnibus Gun Control And Violent Crimes Sentencing  Act