On July 13, the on line news publication ABQReport published the following news item update followed by the original news story:

July 13, News Update, 5:30 p.m.
BY: Dennis Domrzalski and Dan Klein

This past June, Geier finally moved to cap overtime at the department. But that was after we had reported that Colon’s office had started its preliminary probe into APD’s overtime practices.”

The link to ABQReports is here

https://www.abqreport.com/single-post/2020/07/13/Update-Simon-Drobik-retires-from-APD-before-Internal-Affairs-investigation-complete-APD-finds-potential-time-card-fraud-notifies-State-Auditor

NOT THE FIRST TIME DROBIK INVESTIGATED

Last year, after the Civilian Police Oversight Agency found that Drobik violated APD’s overtime policies more than 50 times by getting paid both as an APD spokesperson and working the chief’s overtime and getting paid more than $192,000 APD Police Chief Michael Geier went to the defense of Drobick. Geier said there was confusion about overtime practices and disagreed with demands that Drobik be fired. The police union also went to Drobik’s defense saying how hard he worked. Mayor Tim Keller for his part deflected and deflected saying APD was committed to revamping overtime practices but kept his mouth shut and did not say anything about Drobik being removed as spokesman or terminated.

On July 13, in announcing the special audit of overtime abuse, State Auditor Brian Colon said his office launched an investigation after receiving numerous tips last year. Colon is now designating a special audit for the case after he said his office found enough red flags related to overtime practices and internal controls at the department. Colon had this to say:

“For anybody in leadership in any law enforcement agency to say that the overtime process is confusing, that is a problem. That is a clear indication that we have lack of clarity from the top. … We are not investigating just one transaction or just one individual. In fact, we are going to be evaluating the process, procedures, protocols and oversight to ensure there is not any abuse in the system.”

https://www.krqe.com/news/albuquerque-metro/apd-officer-retires-as-authorities-investigate-potential-time-card-fraud/

DROBICK NOT THE ONLY ONE

Pervasive abuse of overtime paid by APD to rank and file is “red flagged” when you review the list of the 250 top city hall wages earners. A total of 160 of the top 250 wage earners at city hall last year were employed by APD, with the majority being APD lieutenants, sergeants, police officers first class, master and senior.

The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1, to December 31 of any given year. The City of Albuquerque recently updated the list for the year 2019. The list starts with the most paid at $193,666.40 to the least paid at $107,885.47, with many being paid 2 and 3 times their base pay. A link to a related blog article containing the list of top 250 follows this article.

The 6-figure compensation being paid to sworn police can be attributed mainly to “overtime” paid. There are nearly a dozen different types of overtime programs within the APD. The categories where APD Officers can earn overtime include holiday work, tac-plan initiatives, training, call outs, calls for service, special events, administrative work, investigations, and court appearances. DWI check points and special events like the Balloon Fiesta and security detail for high profile dignitary visits are all events that require an extensive amount of overtime.

APD Lieutenants, Sergeants, Police Officers First Class, Master, Senior are all part of the police union. The police union contract entitles a police officer to be paid “time and a half” when overtime is worked on any given day or week. Following is a breakdown of pay from last year:

APD LIEUTENANTS

There were 32 APD Lieutenants in the list of 250 top paid employees in 2019 earning pay ranging from $108,031 to $164,722. Hourly pay rate for APD Lieutenants is $40.00 an hour or $83,200 yearly. These positions are classified employee and are permitted to be part of the police union and as such are entitled to be paid time and a half for overtime worked under the union contract. The 32 Lieutenants and their pay was:

Languit, Luke C Lieutenant 164,722.80
Patterson, Christopher Lieutenant 138,606.30
Jones, Aaron M. PD-Police Lieutenant 136,824.53
Bell Garcia, Jennifer L Lieutenant 134,492.33
Bassett, Jeremy D Lieutenant 132,599.17
Anaya, Adam Lieutenant 130,357.92
Frick, Sean M Lieutenant 128,819.03
McElroy, Matthew Lieutenant 128,802.41
Altman, Steve A Lieutenant 128,026.22
Price, Bryan H Lieutenant 127,649.99
Johnston, Kenneth L Lieutenant 127,131.74
Woodard, Timothy C Para Lieutenant 126,448.18
Barraza, Rene Lieutenant 125,395.24
Puariea, Karla P Para Lieutenant 125,148.94
Norris, Scott T Lieutenant 125,108.42
Napoleone, Kevin J Lieutenant 124,720.27
Parsons, Scott W Lieutenant 122,828.34
Saladin, David R Lieutenant 122,580.22
Tafoya, Dennis Lieutenant 122,480.98
Esquibel, Timothy Lieutenant 121,050
Barker, Cecily A Lieutenant 119,355.26
Deyapp, Lena T Lieutenant 115,430.07
Brown, Joshua M Lieutenant 119,782.52
Brodbeck, Michael K Lieutenant 115,436.50
Martinez, Melvin J Para Lieutenant – 40 HR 115,208.12
Cottrell, Zakary F Lieutenant 114,736.04
Wallace, Sean P Lieutenant 113,973.16
Chacon, Jennifer M Lieutenant 110,584.76
Tapia, Amanda C Lieutenant 109,649.60
Bowie, Terysa Lieutenant 108,528.26
Baca, David R Lieutenant 108,165.90
Weber, Gregory E Lieutenant 108,031.08

APD SERGEANTS

There were 32 APD Sergeants in the list of 250 top paid employees in 2019 earning pay ranging from $109,292 to $193,666. Hourly pay rate for APD Sergeants is $35 an hour, or $72,800 a year. These positions are classified employee and are permitted to be part of the police union and as such are entitled to be paid time and a half for overtime worked under the union contract. The 32 Sergeants and their pay was:

Hernandez, Michael F Police Sergeant 193,666.40
Pholphiboun, Phetamphone B Police Sergeant 166,813.86
Lopez, Daniel J Sergeant 154,969.57
Martinez, Dominic P Sergeant 149,152.48
Hunt, Justin R Sergeant 140,961.94
Economidy III, Byron G Sergeant 138,305.75
Stockton, Robert M Sergeant 134,315.52
Kenny, Sean P Sergeant 126,987.12
Cancilla, Zachary A Sergeant 126,163.99
Anderson, Hollie L Sergeant 125,887.78
Schmidt, Matthew J Sergeant 123,878.97
Pitzer, Brian D Sergeant 123,666.89
Brown, Eric Sergeant 118,229.24
Knipprath, Brock M. Sergeant 120,086.01
Chavez, Matthew M Sergeant 119,850.43
Chavez, Dennis Sergeant 122,182.17
Nelson, Ryan H Sergeant 118,249.02
Paige, Brian AV-Aviation Sergeant 115,896.04
Sandoval, Albert Sergeant 114,699.80
Wild, Amanda Sergeant 114,376.03
Richards, Joshua R. Sergeant 114,061.11
Sedler, Amy J Sergeant 113,008.40
Haugh, Paul Sergeant 113,517.31
Hernandez, Armando F. Sergeant 112,835.56
Armijo, Louis J Sergeant 112,287.92
Monte, Lawrence E Sergeant 111,833.05
Rojas, Ernesto AV-Aviation Sergeant 111,453.67
Ingram, Richard S Sergeant 110,663.50
Martin, Paul A. Sergeant 110,472.28
Gomez, Gustavo A. Sergeant 110,138.01
Barnard, Jeffery R. Sergeant 109,459.56
Ortiz, James Sergeant 109,292.95

POLICE OFFICERS FIRST CLASS, MASTER, SENIOR

There were 70 APD patrol officers first class, master, senior in the list of 250 top paid employees in 2019 earning pay ranging from $108,167 to $188,844. Hourly pay rate for Patrol Officers is $29.00 an hour to $31.50 an hour depending upon years of experience. These positions are classified employee and are permitted to be part of the police union and are paid time and a half for overtime worked under the union contract.

Johnson, Brian, Senior Police Officer 1C 188,884.04
Drobik, Simon Master Police Officer 1C 166,484.67
Pearson, Nicholas R Master Police Officer 1C 149,157.79
McCarson, Timothy W Senior Police Officer 1C 147,207.30
Hollier, Jeremy B Senior Police Officer 1C 143,229.86
Martinez, Yvonne Master Police Officer 1C 140,522.20
Lehocky, Andrew J Master Police Officer 1C 140,107.90
Garza, Ramiro J Senior Police Officer 1C 136,815.26
Solis, Brenda M Senior Police Officer 1C 136,522.25
Canales, Ladio Senior Police Officer 1C 135,591.41
Rico, Michael K Senior Police Officer 1C 133,020.75
Hernandez, Francisco F Senior Police Officer 1C 132,288.88
Hernandez Jr, Jimmy S Senior Police Officer 1C 132,093.96
Burchell, Edward Master Police Officer 1C 131,582.84
Carter, Jessie W. Senior Police Officer 1C 131,530.98
Swessel, Robert A Master Police Officer 1C 131,402.46
Shook, Michael B. Senior Police Officer 1C 130,875.25
O’Neil, Craig P Master Police Officer 1C 129,424.58
Champine, Daniel J Master Police Officer 1C 128,915.79
Montano, Joshua Senior Police Officer 1C 124,635.53
Brown, Jason Senior Police Officer 1C 124,396.46
Solis, Emmanuel Senior Police Officer 1C 124,356.64
Burley, John V. Senior Police Officer 1C 123,201.06
Kaskalla, Duran G, Senior Police Officer 1C 122,293.95
Breeden, Charles F Senior Police Officer 1C 121,813.68
Maes, Kelly R Senior Police Officer 1C 121,460.96
Rogillio, Justin L Senior Police Officer 1C 120,907.69
Hooee, Alonzo Senior Police Officer 1C 120,848.24
Frazier, Jared L Senior Police Officer 1C 119,790.19
Lujan, Damian M Senior Police Officer 1C 119,752.79
Fox, James Master Police Officer 1C 119,648.21
Novicki, Thomas D Master Police Officer 1C 119,512.95
Franklin, Daniel J Master Police Officer 1C 119,445.19
Barela, Victor D Senior Police Officer 1C 119,403.34
Ruiz, Luis A Police Officer 1C 119,180.60
Miller, Charles W Senior Police Officer 1C 118,863.48
Jojola, Eric J AV-Aviation Senior Police Officer 1C 117,527.64
Luna, Michael A Master Police Officer 1C 116,607.28
Torgrimson, Daniel A Master Police Officer 1C 116,593.63
Juarez, Terra K Master Police Officer 1C 116,369.80
St. John, Phoy R Senior Police Officer 1C 116,158.36
Romero, Arnold C Aviation Master Police Officer 1C 116,001.11
Walsh, Stephen T Master Police Officer 1C 115,270.93
Yurcisin, Daniel E Senior Police Officer 1C 115,181.80
Martinez, Herman G Master Police Officer 1C /115,084.94
Armijo, Leonard R Police Officer 1C 114,088.46
Hotle, Timothy Senior Police Officer 1C 113,678.72
Ortiz, Nelson S Police Officer 1C 113,571.44
Meyer, Jesse M PD-Police Master Police Officer 1C 113,439.19
Oates, Michael A Senior Police Officer 1C 113,406.92
Martinez, Marisa J Senior Police Officer 1C 113,114.85
Zambrano, Anthony Master Police Officer 1C 113,009.31
Correia, Donald R Senior Police Officer 1C 112,990.10
Duran, Fred O Senior Police Officer 1C 112,826.26
Higgins, Kiel V Master Police Officer 1C 111,618.07
Williamson, James L Master Police Officer 1C 111,365.45
Groff, Matthew S Senior Police Officer 1C 111,291.87
La, Quan T Police Officer 1C 111,180.38
Rahimi, Alexander A Police Officer 1C 110,548.33
Porlas, Dwight Master Police Officer 1C 110,014.59
Abbatantuono, Guy D Senior Police Officer 1C 109,757.33
Avila, Michael A Senior Police Officer 1C 109,703.46
Perez, Lucas F Police Officer 1C 109,560.26
Lovato, Angelo J Senior Police Officer 1C 109,506.05
Redhouse, Leighton Senior Police Officer 1C 109,438.25
Gomez, Geno Virgil E Master Police Officer 1C 109,314.87
Montano, David B Senior Police Officer 1C 108,943.69
Roach, Gerald L Master Police Officer 1C 108,225.72
Wolffbrandt, Timothy E Senior Police Officer 1C 108,176.61
Herbst, Zachary C Police Officer 1C 108,167.35

COMMENTARY AND ANALYSIS

According to the June 24, 2020 letter to Mayor Tim Keller, the Office of the State Auditor is designating the City for a special audit “in order to examine the City’s compliance with applicable laws, regulations, policies, and procedures.” It is an audit that must be paid for by the city with a selection of a firm from a list of firms authorized to do financial audits under a state contract. The APD Internal Affairs Investigation of Simon Drobik should be expanded to include all sworn police who were paid upwards of 25% more of their base pay to determine if there was overtime pay abuse.

Police officers earning excessive overtime is nothing new. It has been going on for years and is very common knowledge. During the last 9 years, the Albuquerque Police Department has consistently gone over its overtime budget by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March, 2017 city internal audit of APD’s overtime spending found police officers taking advantage of a system that allows them to accumulate excessive overtime at the expense of other city departments. A city internal audit report released in March, 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget.

OPPORTUNITY TO ADDRESS PAY STRUCTURE

With the action of the State Auditor and the initiation of special audit, the City should use it as an opportunity to evaluate alternatives to hourly pay and paying time and a half. The City should do away with APD hourly wage and time and a half for overtime for sworn police and implement a salary structure based strictly on steps and years of service. A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented, otherwise the problem of excessive overtime paid will not go away, especially when you have a Mayor or a Chief of Police looking the other way.

A base pay salary system should be implemented for all APD sworn personnel. A base salary system with step increases for length of service should be implemented. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same, but if more time is needed to complete a work load or assignments for the day, the salaried employee works it for the same salary with no overtime paid and a modification of shift times for court appearances.

APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignment, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear at such arraignments.

Until the APD salary structure is changed, APD will always have patrol officers first class making two to four times their base salary and emotional burnout will be the norm, not the exception endangering public safety. The trend of having more classified APD employees earning such high hourly wage pay does not bode well from an executive personnel management standpoint.

CONCLUSION

You would think APD had learned its lesson after all the prior audits, but they did not and greed once again got the better part of Albuquerque’s finest. Mayor Tim Keller and APD Chief Michael Geier essentially defending Drobik and looking the other way when the problem was first brought to their attention did not help much either. Once the special audit is completed, State Auditor Brian Colon should forward the audit to the New Mexico Attorney General and a special grand jury needs to be convened to determine what criminal charges, if any, should be filed.

In 2019 There Were 160 Of 250 Top Paid City Hall Employees That Were Police Paid Between $107,885.47 to $193,666.40 and 49 Were Firefighters That Were Paid $107,885.47 To 148,128.08; Abolish APD Overtime, Longevity Pay; Implement Set Salary Structure; Remove APD Sergeants And Lieutenants From Police Union

APD Spokesman Drobik’s $192,973 Overtime Pay Tip Of Iceberg; “Denied Access” Reason Media Reluctant To Report; Where Is Our Champion To Combat “Waste, Fraud and Abuse” Mayor Tim Keller?

Max Mitnik: “I’m going to suffer a lot if I don’t kill myself, will you please kill me, sir. Kill me.”

Wanda Mitnik: “Did you really? Did you really? … Why did you do that?”

Michael Mitnik: “We asked for help. … Where did you shoot him? … back of head? … Why did you do that? … He asked you to kill him.”

The June 4 words of Max Mitnik and his parents Wanda Mitnik and Michael Mitnik are about as haunting as it can get when they told the above to APD Police Officer Jose Ruiz in their home.

This blog article is an in-depth discussion of the shooting, APD’s use of force policies under the Department of Justice Court Approved Settlement Agreement (CASA), and what needs to happen going forward.

FACTUAL BACKGROUND

Max Mitnik is 26 years old. On June 4 he was living with his parents Wanda and Michael Mitnik in their home in the Tanoan gated community. Max Mitnik is suffering from mental illness, he has been under psychiatric medical care for some time and was on medication. He has a history of mental health care at the University of New Mexico Mental Health Hospital. On June 4, Mitnik had not been taking his medication and told his parents he was worried he would hurt them. Max Mitnik does not have a criminal history, has no prior contacts with APD’s Crisis Intervention Unit or mental health reports in police databases.

Around 2 p.m. on June 4, Max Mitnik’s mother and father called 911 to ask APD officers to take him to the hospital because of his comments about being afraid he was going to hurt them. APD Officers Jose Ruiz and Officer Elycio were dispatched to the seen. Upon arrival, Officer Jose Ruiz turned on his lapel camera and a 26 minute 38 second video was recorded.

LAPEL CAMERA VIDEO

On Friday, July 10, the Albuquerque Police Department (APD) released the entire lapel camera video to the news media. A YOUTUBE link to the lapel camera recording can be viewed here:

https://www.youtube.com/watch?time_continue=3&v=a0mTXSwtafs&feature=emb_title

EDITOR’S CAUTION: THE VIDEO IS VERY GRAPHIC, DIFFICULT TO WATCH AND UPSETTING IN THAT IT RECORDS AN ACTUAL SHOOTING. FOR THESE REASONS THE FOLLOWING SUMMARY IS OFFERED:

The first few minutes of the lapel camera video shows two APD police officers talking first with Michael Mitnik, the father, over a fence gate. Soon Max Mitnik walks out to talk with the two police officers. Michael Mitnik opens the gate and female Police Officer Elycio talks with Max Mitnik. She reasons with Max to allow her to put handcuffs on him to follow APD procedures to take him to the hospital.

The officers explain to Max he will have to wait at least an hour in the car before he can be admitted because of a backlog at the hospital. The mother Wanda Mitnik soon joins her husband outside talking with the officers. The officers emphasize to Max he was not under arrest nor in custody. Soon Max becomes upset wants the handcuff off and they are taken off. After the handcuffs are taken off, Max Mitnik, begins to pace in front of the house, down the street and then back appearing and acting agitated.

The video reflects that the father and the officers continually talked with Max Mitnik as he tried to decide whether he wanted to go with them or be taken to the hospital by his parents. The officers again emphasize to Max that he is an adult, not accused of any crime, and they cannot force him to go with them to the hospital and he could go with his parents.

Max Mitnik finally agrees for a second time to go to the hospital with APD, is again handcuffed but with his hands in front of him. The officers begin to walk Max to marked SUV unit. Max Mitnik changes his mind as he is being escorted to the APD unit, he turns suddenly and starts to walk towards his parents and the officers ask him what’s wrong.

At this point, Michael Mitnik and Officer Jose Ruiz again try to reason with Max to go to the hospital. Michael Mitnik offers to ride with Max in the police car while Wanda Mitnik follows in the family car. The father tells Max if he does not go, they will only wind up calling APD again. Max says “What happens if I get violent there?… at the hospital.” Officer Ruiz then tells Max that the hospital has its own security. Max tells them he does not want to go the hospital and asks that the handcuffs be removed and the cuffs are removed.

Once the handcuffs are removed, Max Mitnik walks back to the house, goes inside the home. He is not followed by the APD Officers who lose sight of him. The officers requested a Mobile Crisis Team (CIT), a unit be dispatched. CIT Units are made up of a behavioral health clinician and an police officer who responds to mental health calls.

Before the Mobile Crisis Team has a chance to be dispatched and arrive, Wanda Mitnik is heard screaming inside the house. Officer Ruiz runs inside, guided by Max Mitnik’s father to a bathroom where Max Mitnik has locked himself inside. Wanda Mitnik shows up with a key to open the bathroom, said her son was inside the bathroom and was stabbing himself in the neck.

The shooting occurs at 15 minutes and 1 second into the lapel camera video when Officer Ruiz has Wanda Mitnik unlock the bathroom door, the door slowly opens to the dark bathroom and seconds later, Max Mitnik emerges from the bathroom, he is bleeding from the neck starts to walk slowly towards Officer Ruiz and says calmly, but as if begging, in a low tone of voice:

“I’m going to suffer a lot if I don’t kill myself, will you please kill me, sir. Kill me.”

The video shows Max Mitnik approaching the Officer Ruiz with something in his hand, which is later identified as a paring knife. Two shots are fired by Officer Ruiz. One shot hits Max Mitnik in the hip and the other shot hits him in the head and Max Mitnik falls to the floor unconscious.

Both Wanda and Michael Mitnik reacted in shock to the shooting of their son they had just witnessed.

On the lapel camera video Wanda Mitnik says to Officer Ruiz before going to her son to try to revive him and stop the bleeding:

“Did you really? Did you really? … Why did you do that?”

The video reflects that Officer Ruiz bends down appearing to pick up something later identified as a paring knife. As soon as Wanda Mitnik goes into the bedroom to help her son, you can hear officer Ruiz call in “shots fired” and he begins to heavily pant as if emotionally upset, start walking down a hallway panting and turning back around after regaining his composure.

Michael Mitnik, sitting down in obvious grief watching his wife and a female police officer giving Max aide had the following exchange with Officer Ruiz:

Michael Mitnik: “We asked for help. … Where did you shoot him? … back of head?

Officer Ruiz: “… No, he was coming toward me, so I don’t think in back of the head.”

Michaele Mitnik: “Why did you do that? … He asked you to kill him.”

Paramedics arrived and Max Mitnik was taken to the emergency room. Remarkably Max Mitnik survived the close range shooting.

Media reports reflect that Max Mitnik was critically injured and spent a month at the hospital before returning home. He is expected to undergo another neurosurgery, and physical and occupational therapy to re-learn how to do such basic tasks as walking and dressing himself.

The Mitnik shooting was the 4th APD Police Offer involved shooting with 2 of the shootings resulting in death.

Links to news coverage are here:

https://www.kob.com/albuquerque-news/apd-releases-video-of-police-shooting-in-tanoan/5788708/

https://www.abqjournal.com/1474759/video-shows-tanoan-shooting-during-mental-health-call.html

https://www.krqe.com/news/albuquerque-metro/police-involved-in-shooting-in-northeast-albuquerque/

APD INITIAL REACTION

Lt. Scott Norris is with APD’s Violent Crime Section. Norris responded to media inquiries about the Tanoan shooting. When asked why APD Officer Ruiz did not use less lethal force, Lt. Norris said the use of force response was still under review by APD Internal Affairs. He also said Ruiz was carrying a Taser at the time of the shooting and that Officer Ruiz told investigators he was afraid he was going to be cut and “furthermore, he thought he was going to be killed.”

Norris responded to media questioning this way:

“What we do know right now is the subject was closing distance on the officer with a knife raised to his hip. … We know this occurred within close quarters. The officer’s decisions are still being investigated and, after the investigation is completed, our Force Investigation Division will forward their findings to our Force Review Board [which will review] the officer’s tactics of drawing and exhibiting a weapon, and [if] the use of deadly force in this instance met the standards expected of all of our officers.”

Lt. Norris said the internal investigation will also look at whether Ruiz should have picked up the knife after the shooting as it said he did in the search warrant. Lt. Norris had this to say:

“Those are the types of things we look at and, as I said earlier, if there is a deficiency in the policy, if the officer violated a policy, that will be addressed administratively. … All these investigations have a concurrent administrative investigation and criminal investigation. That is something that will obviously be something of note in the investigation and, if it’s out of policy, it will be addressed accordingly and, if it’s within policy, we can take a look at the policy and see if we can make that policy better.”

https://www.abqjournal.com/1474759/video-shows-tanoan-shooting-during-mental-health-call.html

A Multi-Agency Task Force, made up of detectives from APD, New Mexico State Police and the Bernalillo County Sheriff’s Office, is still investigating the incident.

REVISITING THE DOJ USE OF FORCE AND DEADLY FORCE INVESTIGATION

On April 10, 2014, the United States Department of Justice (DOJ), Civil Rights Division, submitted a scathing 46-page investigation report on an 18-month civil rights investigation of the Albuquerque Police Department (APD). The investigation was conducted jointly by the DOJ’s Washington Office Civil Rights Division and the United States Attorney’s Office for the District of New Mexico.

You can read the entire report here.

https://www.justice.gov/sites/default/files/crt/legacy/2014/04/10/apd_findings_4-10-14.pdf

The DOJ investigation included a comprehensive review of APD’s operations and the City’s oversight systems of APD. The DOJ investigation “determined that structural and systemic deficiencies — including insufficient oversight, inadequate training, and ineffective policies — contribute to the use of unreasonable force.” Based on the investigation and the review of excessive use of force and deadly force cases, the DOJ found “reasonable cause to believe that APD engage[d] in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment … . and [the] investigation included a comprehensive review of APD’s operations and the City’s oversight systems.”

What differentiates the DOJ’s investigation of APD from the other federal investigations of police departments and consent decrees is that the other consent decrees involve in one form or another the finding of “racial profiling” and use of excessive force or deadly force against minorities. The DOJ’s finding of a “culture of aggression” within APD dealt with APD’s interactions and responses to suspects that were mentally ill and that were having psychotic episodes.

A significant number of the use of force cases reviewed involved persons suffering from acute mental illness and who were in crisis. The investigation found APD’s policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved

The investigative report found a pattern or practice of use of “deadly force” or “excessive use of force”. The DOJ reviewed all fatal shootings by officers between 2009 and 2012 and found that officers were not justified under federal law in using deadly force in the majority of those incidents. Albuquerque police officers too often used deadly force in an unconstitutional manner in their use of firearms. Officers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force.

USE-OF-FORCE CONTINUUM

According to the National Institute of Justice, the “use of force continuum” is a well established and recognized law enforcement policy concept adopted by law enforcement agencies throughout the United States, including APD. Under the use of force continuum, law enforcement officers should use only the amount of force necessary to mitigate an incident, make an arrest, or protect themselves or others from harm. The levels, or continuum, of force police use include basic verbal and physical restraint, less-lethal force, and lethal force.

The level of force an officer uses varies based on the situation. Because of this variation, guidelines for the use of force are based on many factors, including the officer’s level of training or experience. An officer’s goal is to regain control of a situation as soon as possible while protecting the community. Use of force is an officer’s last option and considered a necessary course of action to restore safety in a community when other practices are ineffective. The use of force by law enforcement officers becomes necessary and is permitted under specific circumstances, such as in self-defense or in defense of another individual or group.

Links to more about the use of force continuum are here:

https://nij.ojp.gov/topics/articles/overview-police-use-force

https://nij.ojp.gov/topics/articles/use-force-continuum

APD USE OF FORCE AND DEADLY FORCE POLICIES

The DOJ Court Approved Settlement Agreement (CASA) was negotiated over a 6-month period after the DOJ released its investigation report finding that APD engaged in a “pattern and practice” of unconstitutional “use of force” and “deadly force.” The 106-page negotiated CASA agreement was filed on November 10, 2014.

It took the city upwards of 2 years to revise and rewrite APD’s “use-of-force” and “deadly use of force” policies in a manner consistent with the court-approved settlement agreement. As a backdrop to what happened on June 4, APD’s use of force and deadly force policies need to be highlighted to understand the levels of use of force APD officers are trained to use. A link to the entire use of force policy is here:

http://documents.cabq.gov/police/standard-operating-procedures/2-52-use-of-force.pdf

The APD use of force policy is SOP 2-52 and became Effective January 11, 2020. APD’s use of force and deadly force policies are 8 pages long and essentially defines and elaborates for training purposes the “use of force” policies. APD’s 8 pages of use of force and deadly force policies is and elaboration and refinement of the “use-of-force continuum.”

The policies that apply to APD interacting with the mentally ill can be easily gleaned from all the policies.

Following are APD’s use of force and deadly force policies:

2-52-2 Policy

1. Discharging a firearm at an individual, whether intentional or accidental;
2. Any neck-hold as defined by Department policy;
3. Intentional strikes with a baton, flashlight, radio, weapon, stock/handle, or improvised impact weapon to vital areas of the body to include the head, neck, throat, torso, or groin;
4. Intentionally striking an individual’s head against a hard, fixed object such as a roadway, floor, wall, or steel/iron bars;
5. Intentionally targeting the head, neck, throat, chest, or groin of an individual with a beanbag shotgun;
6. Intentionally targeting the head, neck, throat, chest, or groin with a 40-millimeter impact munition launcher;
7. Intentionally targeting an individual’s head, neck, chest, or genitalia with an Electronic Control Weapon (ECW);
8. Intentionally kneeing or kicking an individual’s head or neck while the individual is in a prone or supine position; or
9. Deliberately striking an individual with a motor vehicle.

FEDERAL COURT RULING ON APD’s USE OF FORCE POLICY

Six years ago, the APD Union was not a named party to the original civil rights complaint for excessive use of force and deadly force filed against the city by the Department of Justice (DOJ). Soon after the DOJ initiated the federal lawsuit against APD and the City, the APOA police union intervened to become a party to the federal lawsuit in order to advocate for union interests in city policy and changes to the “use of force” and “deadly force policies.”

The Police Union, despite public comments of cooperation and comments made to the court, have never fully supported the agreed to reforms. The union contributed to the one-year delay in writing the policies objecting to many provisions of the policies. The police union repeatedly objected to the language of the use of force policy asserting the policy was unreasonable.

In January, APD implemented the new use-of-force policies. Late last year, the APD Police Union filed a motion relating to the use of force policy arguing it is unconstitutional. In the motion the police union argued the policy was too vague and undefined and it is difficult to determine what facts “a reasonable officer” would have known at the time they decide to use force or deadly force.

On June 25, Judge Browning, the federal judge assigned to the federal settlement case, denied the unions motion. Judge Browning ruled the language in the use-of-force policy is consistent with the “objective-reasonableness standard”. This is the legal standard articulated by the U.S. Supreme Court in the case of Graham v. Connor , 490 U.S. 386 (1989). The US Supreme Court decided the case on May 15, 1989.

“Graham v. Connor determines the legality of every use-of-force decision any police officer makes. Using the Graham standard, an officer must apply constitutionally appropriate levels of force, based on the unique circumstances of each case. The officer’s force should be applied in the same basic way that an “objectively reasonable” officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene.”

https://www.policemag.com/341717/understanding-graham-v-connor

Judge James Browning wrote:

“the determination whether a reasonable officer would have known that the offender suffered from mental illness is not based on whether it surfaces after the situation that the offender suffered from mental illness. Instead, the determination is based on whether a reasonable officer at the crime scene would have known from the circumstances that a person suffered mental illness.”

https://www.abqjournal.com/1469640/judge-overrules-police-union-objection-to-use-of-force-policy.html

COMPLETION OF MANDATED REFORMS UNDER THE CONSENT DECREE

APD has completed the following mandated reforms under the CASA as applied to dealing with the mentally ill:

1. After a full year of negotiations, the new “use of force” and “use of deadly force” policies have been written and implemented. All APD sworn officers have received training on the policies.
2. All sworn officers have received at least 40 hours crisis management intervention training to deal with the mentally ill and others.
3. Sweeping changes, ranging from APD’s SWAT team protocols, to a ban on chokeholds, to an audit of every Taser used by officers, to a re-write and implementation of new use-of-force and deadly force policies, have been completed. More training and controls over the use of Tasers by officers has been completed.
4. All other federal consent decrees in the country involve in one form or another the finding of “racial profiling” and the use of excessive force or deadly force against minorities. APD’s consent decree deals with APD’s interactions and responses to suspects that are mentally ill and having psychotic episodes. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques and de-escalation tactics with the mentally ill have now been implemented, with all sworn officers having received the training.
5. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
6. The Mental Health Advisory Committee has been implemented.

https://www.cabq.gov/mental-health-response-advisory-committee/documents/court-approved-settlement-agreement-final.pdf

PUBLIC SAFETY DEPARTMENT

On June 14, Mayor Tim Keller announced plans to create a new Public Safety Department that would send trained professionals to respond to certain calls for help in place of armed officers. The Albuquerque Community Safety Department would have social workers, housing and homelessness specialists and violence prevention and diversion program experts who would be dispatched to homelessness and “down-and-out” calls as well as behavioral health crises. The new department would connect people in need with services to help address any underlying issues. The department personnel would be dispatched through the city’s 911 emergency call system. The intent is to free up the first responders who typically have to deal with down-and-out and behavioral health calls.

Keller said “down and out” calls usually end with someone going to jail or to a hospital. According to Keller:

“And the determiner of [whether a person goes to jail or a hospital] is either firefighter or police [officer]. … Neither of them should be making that initial call, unless it’s a situation of violence. … We’re just expecting them to solve every individual’s problem, and I think that’s totally unfair to them and their training. … We should have trained professionals do this, instead of folks with a gun and a badge. But in general, that’s what we have to fix.”

https://www.abqjournal.com/1466317/mayor-proposes-public-safety-department.html

COMMENTARY AND ANALYSIS

The lapel camera video shows the difficulty it is for trained police officers to implement use of force and deadly force written policy and apply those policies with real life events in police work. Much of police work when police are engaging with a criminal offender, especially when they are involved in the immediate commission of a crime or a fleeing suspect, is reactionary. Being reactionary during an incident, the time to make a decision to use force or deadly force, and to what extent, is literally one or two seconds. Such was the incident with Max Mitnik.

The lapel video of the Tanoan shooting of Max Mitnik will no doubt be reviewed over and over again and again by not only by APD Internal Affairs Unit, the Force Investigation Division, the Force Review Board but also the Federal Monitor overseeing the DOJ consent decree. It is likely the lapel camera video will also wind up being used at the APD academy for training purposes.

The Tanoan lapel camera video is a case study of the “heartbeat” decisions that police officers are required to make, especially when dealing with the mentally ill. When you review the video, no one can say with absolute certainty what was going through the mind of Officer Ruiz, what extent he felt his life was in danger and why he decided to fire his gun, except for Officer Ruiz himself.

Obviously, the “powers that be” must decide if city policy was violated, if the shooting was self defense or the defense of the another and if officer Ruiz truly felt his life was in danger when Max Mitnik approached him holding a paring knife. The most important factor to consider in deciding if the use of deadly force was legally justified is the extent of a threat faced by an officer using the force or the threat to others at the scene. That is the rub when deciding to discipline or prosecute any police officer for shooting anyone. Ultimately a decision will be made if APD Police officer Ruiz acted in a way that an “objectively reasonable” officer would have acted in the same circumstances.

COMPLICATING FACTORS

There were two police officers initially dispatched to the Mitnik residence on June 4 and who interacted with Max Mitnik. Each officer placed handcuffs on him on two separate times as they explained to him why the handcuffs were needed as they attempted to reason with him to allow them to take him to the hospital. No doubt both officers will be interviewed to give their own version of what happened and what they felt could, should or what was done.

What really complicates the Max Mitnik shooting case is the fact the call out to the Mitnik residence was not to make an arrest or to investigate a crime. The call out was a “welfare check” to assist a mother and father dealing with a son who was having a psychotic episode, who was threatening to get violent and who wanted to go to the hospital. The police could not force Max to go to the hospital, he had not committed any crime nor did they have probable cause to make an arrest for a crime. The only thing the officers could do was attempt to reason with him. Demanding that Max wear handcuffs was no doubt to conform with APD standard operating procedures, but was it necessary if Max was not being arrested but just be transported to the hospital? All the officers did do was attempt to reason with the Max and call for CIT. They also lost control of the scene when they allowed Max to go back into the home and allowing Max to escalate the interactions with the police.

The lapel camera video reflects that a few standard operating procedures may have been violated. What happened on June 4 reflects the “real world” of policing. It became “a no-win situation” for all involved, especially the police officers who were conducting a “welfare check call” to provide assistance. No crime was being reported nor investigated. The family was asking for help, and it escalated to a police officer shooting. The two Police Officers were clearly acting courteous at first, but once they allowed Max Mitnik out of their site and allowed him to go back into the home, they lost complete control of the scene and endangered themselves and the Mitniks as well.

The “no win situation” was that had the officers been far more aggressive with Max Mitnik and used force at any level where no arrest was being made they would have been condemned of escalating the situation contributing to the shooting.

GOOD START IS IMPLEMENTING CUBRA RECOMMENDATIONS

On June 22, the Albuquerque Journal published guest editorial column written by respected and well-known civil rights attorney Peter Cubra. He made two major recommendations that should be implemented immediately. Following are those recommendations:

“When a family member wants help getting mental health treatment for a loved one, the city sends APD officers to conduct “welfare checks” despite frequent, including recent, tragic results. On March 30, APD officers responded to Valente Acosta-Bustillos’ family’s request for a welfare check. Two police officers went to his home, ultimately shooting him to death. On June 4th, Max Mitnik’s family similarly called 911 requesting help getting Max mental health treatment. Reportedly, Max Mitnik had not threatened anyone when the call was made. Nonetheless only police responded, then shot him in the head. Mental health professionals, not police, should be in charge of “welfare checks.”

“APD has “Crisis Outreach and Support Team” (COAST), comprised of “civilian employees supervised by a department sergeant” who provide “crisis intervention, access to mental health services, and education” and “perform case follow up in order to connect individuals in need with service providers.” None of COAST’s functions are “policing,” but the city has refused to move those tasks from APD to another entity that serves people experiencing homelessness and/or mental disabilities. No study is necessary to know that tracking down people with mental disabilities to encourage them to participate in treatment is not “policing.” Transferring the resources of the COAST team out of APD is a no-brainer. But the city’s administration hasn’t done it.”

The link to the full Peter Cubra guest column is here:

https://www.abqjournal.com/1469237/two-obvious-fixes-for-apd-are-staring-us-in-the-face.html

The two recommends made by Cubra should be the immediate precursor to the creation of the Public Safety Department that would send trained professionals to respond to certain calls for help in place of armed officers. The Albuquerque Community Safety Department needs to make every effort have social workers, housing and homelessness specialists and violence prevention and diversion program experts who would be dispatched to homelessness and “down-and-out” calls as well as behavioral health crises.

APD REFORM NOT THE PANACEA MANY BELIEVE

One glaring problem identified by the shooting of Max Mitnik is that after 6 years of implementing the DOJ mandated reforms, rewriting of APD use of force and deadly force policies, millions spent in training on how to deal with the mentally ill, another shooting of a mentally ill person having a psychotic episode has occurred after a desperate family had reached out for help from APD. In a very real sense, the shooting Max Mitnik is a reflection that all the training mandated by the DOJ reforms in dealing with the mentally ill has failed.

The most common complaints regarding the Court Approved Settlement Agreement (CASA) are that there is too much oversight and that the mandates are tying the hands of police. Actions and even criticism by “politicians” and the media are often problematic and resented by police. What those law enforcement fail to understand is that is what is called civilian oversight. It is the elected officials, the politicians, who are ultimately held accountable for what cops do. It also the voters who must hold and demand accountability from both the police and the elected official in that it is the taxpayer that ultimately pays for police misconduct and excessive use of force and deadly force.

CITY MUST ACT NOW

Given the political climate in Albuquerque with the DOJ consent decree, the shooting of Max Mitnik will no doubt renew the debate as to what is the real role of APD officers. Police cannot do it all on their own when it comes to the mentally ill, the homeless and drug addiction. The debate must include demanding the Mayor and the City Council to get their acts together, stop the press conferences and posturing, stop blaming APD for all the ills it is dealing with and be far more aggressive in dealing with mental health issues and the homeless issues by expediting the creation of the Public Safety Department to deal with mental health issues facing the city. The city has failed to break ground on a “detox center”. Moving at a snail’s pace at this point is useless and will only compound the problems APD is facing.

COUNTY COMMISSION MUST ACT NOW

The debate must also include demanding the County Commission and the Bernalillo County Sheriff to get their acts together when it comes to mandating the use of lapel cameras. Sheriff Gonzales is looking foolish more and more each day when he says he will resist implementation of the use of lapel cameras now required by state law. Gonzales is looking like a relic of law enforcement arguing lapel cameras do not reduce crime. The Sheriff’s opposition to lapel cameras sure hell will not help him run for Mayor next year against Tim Keller as is expected. Police lapel camera footage is needed to determine if actions of police officers conform with constitutional policing practices.

On Feb. 26, 2015, the Bernalillo County Commission approved a 1/8 % gross receipts tax increase on a 3-2 vote to fund new behavioral and mental health services to improve access to mental and behavioral health care services in the county. The tax generates approximately $20 million annually. When enacted, the county commission announced the intent for the tax was to invest the funding “in proven ways to better manage the high cost of addiction, homelessness and mental health problems”. According to a county commission announcement, “these issues impact families throughout the community and drive up the cost of public services, especially at the Metropolitan Detention Center.” The gross receipts tax costs shoppers one cent on a $10 purchase of goods and services.

The problem is, the County Commission is still sitting on millions in tax revenues generated from the behavioral tax assessed. In 2015, when the Bernalillo County Commission approved the tax, it failed to develop a plan on how all the money would be used, including not identifying services to be provides, location of facilities and qualifiers to obtain the services offered. As a result of having no spending plan or identifying priorities, the tax has been collected but not spent. Approved programming should eventually cost the county $18.9 million annually, but more than $70 million in tax revenue has accumulated and the amount is growing.

Talk about a waste of valuable time. It was not until November, 2019, that the County Manager asked the Bernalillo County Commission to approve a resolution that permits “stakeholders, providers, community members, staff, commissioners, or other interested parties” to propose behavioral health service ideas through a website. Up until now, only county staff had been authorized to propose behavioral health service ideas. All program appropriations will require final approval of the County Commission.

CONCLUSION

What happened on June 4 is the real world that police officers deal with to “protect and serve.” The debate must include if police officer’s roles and responsibilities should include being a school teacher, a social worker, a psychologist, a guidance or drug counselor, an attorney or judge who carries a badge and a gun with a license to kill as the need arises to defend themselves or others. Until the debate ends, until the City and County governments get their acts together, and until the DOJ consent decree is finally dismissed, we can all expect more killings of people who are having psychotic episodes by law enforcement.

On July 9, it was reported that Albuquerque NAACP President Harold Bailey issued a statement and said that councilors Cynthia Borrego and Trudy Jones used “offensive, inflammatory and insensitive” language during a debate over a $1 million appropriation for the Black community. He said they should apologize or resign and went on to recommend “sensitivity and positive human engagement training.”

The link to the entire news article is here:

https://www.abqjournal.com/1473925/naacp-criticizes-councilors-offensive-language.html

The $1 Million dollar appropriation was described as “an investment that creates positive impact for the African American community.” The legislation was sponsored by Councilor Klarissa Peña and the city council voted yes with an 8-1 vote. According to City Councilor Pena:

“I look at this as a way to focus on addressing what we started out addressing as a part of the Black Lives Matter movement, and that’s … systemic and institutional racism.”

The $1 million dollar appropriation was to Mayor Tim Keller’s “One Albuquerque Fund Foundation” created to raise money for city initiatives by collecting donations from the private sector and citizens who have wanted to donate to the city for city initiatives.

LINE OF QUESTIONING QUESTIONED

During the one-hour debate, Democrat City Councilor Cynthia Borrego and Republican Trudy Jones questioned Charles Ashley III, president of the One Albuquerque Fund for details about how the money would be used. Jones asked whether it would go toward loans or grants, asked who would administer the disbursements, and asked whether it would support businesses or housing and more. Borrego questioned what the city wanted as to “deliverables” for the $1 million, and how the expenditures and program progress would be reported back to the council. Ashley told the council the foundation had not developed a specific plan and said the board will first convene members of the Black community to determine how best to apply the money based on existing needs, he said.

The NAACP took strong exception to what City Councilor Trudy Jones said which was as follows:

“This is not good business, and if we’re trying to help people better themselves, one of the best things we can do is teach them how to do business before they are harmed by doing bad business. … I absolutely cannot support this, not because I don’t support the intent; I don’t support the fact we’re jumping into something with no information, not knowing who’s going to … administer it, what it’s going to be for, how people apply, what qualifies. … Every question out there that anyone would ask before they loan their child money isn’t there. … I’m not saying I’m older and wiser than the people who will get money from this program; I’m saying there should be a question asked: What are you going to do with it? … It could be my brother, it could be my neighbor; if I’m going to loan money to someone, I would like to have an overview … or at least an idea of what it’s going to be used for, or a report or accountability of what it was used for.”

City Councilor Cynthia Borrego came under fire by the NAACP when she said:

“And who is the African American community that is going to be receiving the funding? I would like to know a little bit more about the structure and how this money is going to be used” . … and later in a statement said “After some of my questions were addressed at council, I voted in favor of the proposed … appropriation for $1 million to Albuquerque’s African American community.”

COMMENTARY AND ANALYSIS

It is clear how the NAACP and many others could take exception to the comments of Republican City Councilor Trudy Jones especially her comment “Every question out there that anyone would ask before they loan their child money isn’t there.” This comment by Jones was exceptionally insulting because what Jones was saying is African Americans business people are to be treated like children and they need to be taught how to use and invest their money.

The entire content of councilor Jones line of questioning, whether she realizes it or not, is a reflection of her own “institutional racism” beliefs that usually are not articulated in public. Without a doubt, the comments were out of line and reflect an element of “entitlement” on her part. The fact that Jones is Anglo, is in the real estate private sector industry and representing the most affluent district in the City, just compounds the appearance that she does not really understand systemic racism.

When it comes to Democrat City Councilor Borrego remarks, it is doubtful that they reflect anything more than legitimate questioning as to how taxpayer money will be spent. Given the fact that Borrego is a woman of color, a native of Albuquerque, and a retired city hall employee who for many years dealt with city finances, and ultimately voted for the appropriation, it is far more likely her comments were taken out of context.

Dr. Bailey and the NAACP are calling for a resignation or apology and “sensitivity and positive human engagement training”.

This is understandable when it comes to City Councilor Trudy Jones. Given the remarks made by Jones, an apology is the most one can expect. Do not hold your breath on resignation. It would be a complete waste of time for Councilor Trudy Jones to have “sensitivity and positive human engagement training” given her track record on the City Council. After all, Republican Jones is a Trump supporter, opposed sanctuary city legislation and she sponsored an ordinance to criminalize panhandling, an ordinance later struck down by the Federal Court as violating people’s first amendment rights.

When it comes to City councilor Cynthia Borrego, given her reputation for honesty and integrity and her past votes and past employment with the city, it is likely she learned a valuable lesson and is already very sensitive to systemic racism.

NAACP SHOULD BE DEMANDING PAT DAVIS TO RESIGN FROM CITY COUNCIL FOR HIS CONDUCT

Dr. Harold Baily and the Albuquerque Chapter of the NAACP has not said anything about Albuquerque City Councilor Pat Davis resigning after a June 25 news report where ProgressNow, the very progressive organization that Davis was head of at one time, demanded Davis resign from the City Council.

NOT A REFORMED COP

In its news release ProgressNow accused Pat Davis of a pattern of upholding racist institutions and said in part:

“Unfortunately, Davis’ shooting of a Black man isn’t the only example of his troubling actions. A pattern has unearthed that continues into the present. After Davis moved to Albuquerque he had multiple civil rights complaints lodged against him while serving as a cop at the University of New Mexico. …

Surely, our community does not need someone who routinely targets and criminalizes Black and Brown people to be serving on committees that select judges, decide the future of marijuana legalization in our state, or pass policies and make financial decisions for the City of Albuquerque.”

TROUBLING HISTORY

Pat Davis has never been held accountable for a shooting African American Moses Bell in 2005. Albuquerque City Councilor President Pat Davis is a former Washington DC Police officer who on August 31, 2004 shot Moses M. Bell, age 37 at the time, and who was a Washington, DC resident. Moses M. Bell on August 31, 2004, was driving his car and giving his male African American friend a ride to his girlfriend’s house.

According to court filings, while sitting in his idling parked vehicle to allow his passenger to exit his vehicle, Moses M. Bell was shot twice in the left shoulder by Washington D.C. Police Officer Pat Davis when Davis approached the driver’s side of the car and opened fire without provocation. At the time of the shooting, D.C. Police Officer Patrick Davis was allegedly investigating Moses M. Bell for failure to make a left turn signal and his passenger’s failure to wear a seat belt. Davis claims he saw Bell trying to hide a gun and so he opened fire. Bell was first charged with “Assaulting, Resisting or Interfering With A Police Officer With A Dangerous Weapon”, those charges were dropped and Bell was then charge with carrying a gun without a license, plead guilty, and sentence to 18 months in jail.

Approximately 3 months after the shooting, Pat Davis left the Washington DC Police Department and came to Albuquerque and worked for the UNM Campus Police as a supervisor and Lieutenant. In 2007 and 2008, Pat Davis as a UNM Campus Police Officer, was involved in at least 3 incidents that resulted in civil lawsuits and judgements in the thousands paid for violations of people’s civil rights.

One case involved the execution of a “sealed search warrant” for marijuana by 21 law enforcement personnel, including Pat Davis as a UNM Police officer, who stormed a home, broke in and caused $20,000 in property damaged searching the home. The next case involves the unauthorized search of 2 homes without search warrants where the homes located in Corrales were occupied by single women. UNM Police officer Pat Davis along with two other UNM Police officers essentially coerced both woman to allow searches of their homes without court approved search warrants.

All 4 cases, which include the shooting of Moses Bell, combined reveal an alarming pattern of violating people’s civil rights and unconstitutional policing practices by Pat Davis as a police officer. As City Council President, Pat Davis is calling for major changes and reforms to the Albuquerque Police Department (APD). Davis is questioning and challenging police practices, policies, procedures, training and funding of APD.

PAT DAVIS DID ABSOLUTELY NOTHING WHEN JONES SHOT OFF HER MOUTH

Davis is proclaiming that because of his experiences as a police officer, he is essentially a reformed cop and has changed and he has an understanding of institutional racism in police work. Pat Davis has actually said recently he “made arrests and instigated some encounters I wouldn’t be proud of today” yet there is no apology for his actions to any he brutalized.

Pat Davis now proclaims that because he was a former cop and did things in the past he was not too proud of, he has changed and for that reason he is the guy to lead the charge in reforming APD. What is so damn pathetic is that Pat Davis probably believes people are buying into his garbage, but his actions say otherwise. When City Councilor Trudy Jones shot off her mouth about the funding for African American businesses, Pat Davis as City Council President did not bother to gavel her out of order. Davis did not denounce Jones comments and neither did any other city councilor. Perhaps Davis did not gavel Jones out of order because Davis needed Trudy Jones’ vote to become City Council President.

If Albuquerque City Councilor Pat Davis is sincere and truly wants to make amends for his past conduct as a police officer, he needs to show some degree of honesty and integrity and step down.

The NAACP, and for that matter, the Black Lives Matter movement, need take a position on Pat Davis and if he should resign otherwise their silence speaks volumes more essentially saying their is no need to take Davis to task or hold him accountable for his past actions.

Links to related blog articles are here:

African American Moses M. Bell’s Version Revealed Of His 2004 Shooting By White Wash. D.C. Cop Pat Davis; Outcome Unknown Of Davis Internal Affairs Investigation And Why Davis Not Charged With Crime

City Councilor Pat Davis Needs To Step Down To Atone For His Own “Black Lives Matter” Moment And Violations Of Peoples Civil Rights As A Police Officer

Pat Davis Shooting A Black Man As DC Cop Only Part Of Story; Davis Engaged In Pattern Of Civil Rights Violations As A UNM Cop Costing Taxpayers Thousands

ProgressNow New Mexico Statement on Councilor Davis’ Shooting of a Black Man and Pattern of Upholding Racist Institutions; Calls For His Multiple Resignations

The “Spin Doctor Pat Davis” Is Not “Authentic And Honest” As He Proclaims; City Councilors Protecting One Of Their Own Looking The Other Way; Take Another Vote To Decide If Davis Should Remain As President

Pat Davis Booted From Judicial Selection Commission; Same Political Consultant Behind Pat Davis, DA Raul Torrez And Mayor Tim Keller; Davis Needs Step Down As City Council President Or Be Removed By City Council Vote

On Friday, June 13, Albuquerque City Council Pat Davis announced that he and the city council have come up with their own plan to overall the Albuquerque Police Department (APD). Davis does not think the council’s reform plan will mean fewer police officers for the Albuquerque Police Department (APD). Davis said police officers should not be responding to many calls involving a mental health crisis, homelessness and other behavioral health-related issues.

The Davis proposal would change multiple levels of the department, from reorganizing the police budget and officers’ jobs on the street to emphasizing behavioral health assistance and studies to determine the best route for community engagement. Davis said he believes the city can rededicate $1 million of APD’s $207 million budget to community organizations and social services. Davis is also suggesting a 24/7 dispatch line for calls regarding the homeless that would be answered by those in a public health role and not by the APD reducing APD’s volume of 911 emergency calls.

Davis also announced that the council will meet with the community in July to gain input into possible changes to APD’s budget, police operations and other avenues where funds could be placed to better the community. Davis had this to say:

“I think the mayor and I both share an appreciation that we don’t think politicians should just be deciding where dollars come out and where they go. … We don’t want to get into this knee-jerk reaction that we can solve this by just writing a check, so we’re trying to figure out how we can create a process.”

Shaun Willoughby, president of the Police Officers’ Association, labeled City Councilor President’s “defund the police reforms as Davis’ “political pandering”. He added saying the possible cuts to funding were “ignorant, idiotic and ludicrous” saying the department is already understaffed. He said, if Davis wants better community policing, the city needs to invest in more officers and not undermine the reform efforts under the Department of Justice Court Approved Settlement Agreement (CASA).

https://www.abqjournal.com/1465979/council-leader-unveils-police-reform-proposal-ex-more-community-engagement-rerouting-of-some-calls-included.html

MAYOR KELLER ANNOUNCES NEW PUBLIC SAFETY DEPARTMENT

On Sunday June 14, in a phone interview with the Albuquerque Journal, the very day after City Councilor Pat Davis announced the City Councils plan to overall APD, Mayor Tim Keller announced plans to create a new Public Safety Department that would send trained professionals to respond to certain calls for help in place of armed officers. The Albuquerque Community Safety Department would have social workers, housing and homelessness specialists and violence prevention and diversion program experts who would be dispatched to homelessness and “down-and-out” calls as well as behavioral health crises. The new department would connect people in need with services to help address any underlying issues. The department personnel would be dispatched through the city’s 911 emergency call system. The intent is to free up the first responders who typically have to deal with down-and-out and behavioral health calls.

In his Sunday, June 14 phone interview Keller said “down and out” calls usually end with someone going to jail or to a hospital. According to Keller:

“And the determiner of [whether a person goes to jail or a hospital] is either firefighter or police [officer]. … Neither of them should be making that initial call, unless it’s a situation of violence. … We’re just expecting them to solve every individual’s problem, and I think that’s totally unfair to them and their training. … We should have trained professionals do this, instead of folks with a gun and a badge. But in general, that’s what we have to fix.”

https://www.abqjournal.com/1466317/mayor-proposes-public-safety-department.html

Mayor Tim Keller, despite the change in the national conversation and calls for police departments to be defunded, said his goal is still adding 100 police officers every four years to the point APD is fully funded with 1,200 sworn police. It is projected APD will have 985 sworn police officers after the graduation of the July APD Academy class. In a Channel 4 interview, Keller had this to say:

“We have to adequately fund violent crime law enforcement, and that means we got to get those other officers, but here in Albuquerque, we can do things– like, we’re trying to shift towards diversion programs, towards violence intervention programs. … All of these are essentially, many ways, decriminalizing sort of the interaction between the police and individuals. And so trying to have more civilian interactions and trying to invest in communities, trying to invest in upstream issues like education and poverty, we absolutely have to do a better job at that.”

https://www.kob.com/albuquerque-news/mayor-keller-goes-1-on-1-to-discuss-policing-in-albuquerque/5758739/?cat=500

On June 15, Mayor Keller and Chief Administrative Officer Sarita Nair held a press conference to discuss details of the new Public Safety Department. It was reported that very few details had been worked out and the new department is still in the planning process. The Keller Administration said rough estimates suggest the new Community Safety Department will need 32 people for each its 6 area commands, staffed around the clock, to respond to tens of thousands of calls a year. The Keller Administration intends to submit a final fiscal year budget in August for City Council budget hearing.
Mayor Tim Keller, despite the change in the national conversation and calls for police departments to be defunded, said his goal is still adding 100 police officers every four years to the point APD is fully funded with 1,200 sworn police. It is projected APD will have 985 sworn police officers after the graduation of the July APD Academy class.

Links to related news articles are here:

https://www.abqjournal.com/1466317/mayor-proposes-public-safety-department.html

https://www.abqjournal.com/1466672/details-about-mayors-public-safety-proposal-remain-scarce.html

GUS PEDROTTY, 2017 CANDIDATE FOR MAYOR

If Mayor Tim Keller’s “new idea” to send trained professionals to respond to certain calls for service in place of armed APD officers sounds at all familiar, it’s because it was a concept that former Mayoral Candidate Gus Pedrotty, then 22, proposed when he was one of the 7 candidates who ran against Tim Keller for Mayor. Pedrotty did his homework on the issues facing the city and he ran issues-based campaign. Crime, homelessness and mental health care services were 3 of those issues. Pedrotty sounded, and many would say, far more informed than all the other candidates at the forums and debates.

WEEKLY ALIBI INTERVIEW

On June 16, 2017, the Weekly Albi published one of the first interviews of the 2017 Mayors race. The following question and answer was published:

Weekly Alibi: One of the things you talked about in your introduction was healthcare. How important is healthcare for our citizens, with regards to public safety and for citizens who are marginalized?

Gus Pedrotty: To put it in simple terms, healthcare is everything. We tout our civilization as having a longer life expectancy; we have security in our bodies. But anyone watching this or reading this knows what a personal healthcare crisis does to your productivity, to your mental state, you know how crippling it can be … it’s hard to engage in our society if you’re unhealthy. Going back to the Hyde shootings, when Ray Schultz was chief of police, it clearly showed that we [city government] didn’t have the capacity to deal with mental health in the community, and it resulted in a [police] culture of violence that resulted in the Boyd shooting and all the ones in between, that brought the DOJ here. Of course healthcare is related to public safety. We’ve chosen to engage this as a problem we can fix. When it comes to public safety, we don’t give people resources to be better. … One of the biggest ways we can start to encourage mental health outcomes and how they affect our city is to begin cooperating with programs that already exist, pairing Albuquerque Heading Home with the already existing healthcare structure. Homelessness is not just not having a home. It’s everything that comes with it. I’m interested in holistic and contextualized solutions.”

http://alibi.com/news/53602/Pedrottys-Bigger-Picture.html

“WHY WE RUN” INTERVIEW

On Sep 21, 2017, in an interview with the on line publication “Why We Run” Mr. Pedrotty had this to say:

“We had an incident, in our city, involving the shooting of a homeless person by our police force. I went to all the rallies and protests, sat with the community organizers, and I saw that the city government was not paying attention to us. They were systematically marginalizing a population that I didn’t realize had been marginalized for so long. And after our city kept ignoring these groups who were protesting, all this community engagement culminated in what the media deemed a “riot.”

And our city never cooperated with this work. They have asked how the model could be used to deal with situations of addiction and homelessness in our community, that underline the things we quickly and irresponsibly label as “crime.”

https://medium.com/why-we-run-young-people-in-government/why-we-run-gus-pedrotty-288e6ab9a02a

https://www.vice.com/en_us/article/vb7yv4/how-a-22-year-old-mayoral-candidate-wants-to-make-millennials-vote

ALBUQUERQUE JOURNAL QUESTIONNAIRE

During the 2017 Mayor’s race, the Albuquerque Journal sent out a questionnaire, as it always does, asking candidates questions they deem are important. The Answers submitted are usually edited down and gives little chance for expansion. Following are the first two Journal questions and answers given by Gus Pedrotty:

1. What is the biggest issue facing the city, and how would you address it?

Crime, but crime is a symptom of economics, health, and opportunity. We’ll address mental health and homelessness to decrease crime. In turn, we’ll create a larger and more invigorated workforce and business climate to bring jobs and opportunity to Albuquerque.

2. What would you do to tackle Albuquerque’s crime problem?

Finish the Department of Justice mandate, fully staff police and legal departments, and overhaul emergency service delivery. Through non-officer, service-based response to homelessness and addiction, we save money, reduce strain on officers, and provide better outcomes and services for all residents.

The link to the full questionnaire is here:

https://www.abqjournal.com/1052367/qa-mayoral-candidate-gus-pedrotty.html

PETER CUBRA GUEST EDITORIAL COLUMN

Peter Cubra is a highly respected New Mexico civil rights attorney. He represents a class of individuals at the Metropolitan Detention Center with physical or mental disabilities in the McClendon class-action lawsuit, a federal civil rights case that is still being litigated on behalf of that group of inmates. He’s also filed a friend-of-the-court brief on behalf of people with mental disabilities in the U.S. Department of Justice’s lawsuit against the city alleging excessive force by police.

On June 22, the Albuquerque Journal published the following guest editorial column written by Mr. Cubra:

Headline: Two Obvious Fixes For APD Are Staring Us In The Face

“Since 1984, I have worked with the city, county, court system and jail attempting to improve how law enforcement and the legal system deal with people with disabilities. I believe the “defund police” movement can guide how to improve Albuquerque’s longstanding problems.

None of COAST’s functions are “policing,” but the city has refused to move those tasks from APD to another entity that serves people experiencing homelessness and/or mental disabilities. No study is necessary to know that tracking down people with mental disabilities to encourage them to participate in treatment is not “policing.” Transferring the resources of the COAST team out of APD is a no-brainer. But the city’s administration hasn’t done it.

WELFARE CHECKS

When a family member wants help getting mental health treatment for a loved one, the city sends APD officers to conduct “welfare checks” despite frequent, including recent, tragic results. On March 30, APD officers responded to Valente Acosta-Bustillos’ family’s request for a welfare check. Two police officers went to his home, ultimately shooting him to death. On June 4th, Max Mitnick’s family similarly called 911 requesting help getting Max mental health treatment. Reportedly, Max had not threatened anyone when the call was made. Nonetheless only police responded, then shot him in the head.
Mental health professionals, not police, should be in charge of “welfare checks.”

Albuquerque spends three times as much on animal welfare as it spends on mental health services, more than 10 times as much on parks and recreation, and spends 50 times more on APD than it spends on mental health services. This year, Albuquerque is spending more on golf courses – $5,146,000 – than on mental health services. As Lopez said, Albuquerque needs to “invest more in mental-health care and housing and expand the use of community mediation and violence interruption programs.”
If not now, when?”

The link to the Peter Cubra guest column is here:

https://www.abqjournal.com/1469237/two-obvious-fixes-for-apd-are-staring-us-in-the-face.html

COMMENTARY AND ANALYSIS

During the 2017 Mayor’s race, the voters and the other candidates running were very dismissive of Gus Pedrotty, many did not take him serious nor his ideas, because of his age. Some said he had no business running for Mayor because of his age and his lack of experience. Truth is, none of the candidates Pedrotty ran against had any experience being Mayor. I have found that my generation (55+) has a real bad habit of underestimating the talents, abilities and wisdom of millennials that Mr. Pedrotty represented. Voters and his opponents made a major mistake not listening to what Mr. Pedrotty said during the election. It is a Mayor’s job, and indeed any leaders job, to present ideas and solutions in broad strokes and set the goals and objectives, hold people accountable and not hide from problems and surround yourself with those who can carry out your objectives. Mr.Pedrotty did not just wave, look good and just smile parroting talking points but actually had real substance.

Mayor Keller’s creation of a Public Safety Department really is nothing knew when it comes to the types of services it will be providing with experts who would be dispatched to homelessness and “down-and-out” calls and the behavioral health crises services. Using the term “Public Safety Department” is rebranding of old ideas. The suggestions have been made for a number of years, even before Mayor Tim Keller was elected, during the 2017 Mayor’s race by Gus Pedrotty and before that with the implementation of the federal Court Approved Settlement Agreement (CASA) mandating 276 reforms by APD. It is disappointing that Mayor Keller felt he was in some sort of competition for press coverage with Albuquerque City Councilor Pat Davis. There was absolutely no need for him to call the Albuquerque Journal to do an interview announcing his plans which were also going to be the subject of a full-blown press conference the next day. What is even a bigger disappointment is how Mayor Tim Keller essentially ignored Gus Pedrotty and gave him the cold shoulder after the election when he should have brought him into city hall.

Most of the suggestions proposed by City Councilor Pat Davis to overhaul APD are included in Mayor Keller’s proposal for the creation of a Department of Public Safety or are mandated by Federal Court Approved Settlement Agreement (CASA) mandating 276 police reforms. It is very likely that Pat Davis was very familiar with the ongoing plans of Mayor Keller, saw an opportunity to steal the limelight and credit from Mayor Keller. Councilor Pat Davis Saying “I think the mayor and I both share an appreciation that we don’t think politicians should just be deciding where dollars come out and where they go” is down right disingenuous seeing that is all Pat Davis has been doing since elected to the city council, with the ART Bus project being just one example.

Notwithstanding, the two fixes being proposed by attorney Peter Cubra in his Journal guest column letter are ones that need to be adopted and are solid ideas. It is also likely Mr. Cubra could not careless who gets credit for the ideas, so Keller or Davis should have no problem holding a press conference, separately or jointly, to take credit for Mr. Cubra’s recommendations. They already have the experience in the area political plagiarism when it comes to Gus Pedrotty.

On June 15, a man was shot in Old Town over the “La Jornada” (The Journey) sculpture in front of the Albuquerque Museum. The shooting occurred during a protest for the removal of the figures of Juan de Onate de Salazar in the sculpture.

During the protest, there were 5 to 6 heavily armed New Mexico Civil Guard (NMCG) members, some dressed in military camouflage, present trying to “protect” the sculpture. It was reported that the shooting occurred when at least 3 of the protesters attacked a person identified as Steven Baca who was walking away from them. Steven Baca was struck in the head with a skateboard and Baca drew a gun, shot numerous times, with one shot hitting one of the protesters. The shot protester was rushed to the hospital and was listed in critical but stable condition. The shooting and violence resulted in the City taking the single figure of Onate in the sculpture grouping down.

Civil Guard members have said they take zero responsibility for the shooting and what happened at the June 15 protest and that Steven Baca is not a member of their group. They also have said Baca was “justified” in shooting a protester and believe their armed presence stopped more bloodshed.

NMCG Chaplin and Founder Bryce Provance said that after the gunfire, his men set their “scope” on Steven Baca and “would’ve blown his brains out” if he kept shooting. NMCG member John Burks, an Army veteran who served in “quite a few deployments” said that he could not “specifically speak on” his kicking Steven Baca’s gun away to “secure the crime scene“ but did say “People said we protected him after he shot. … No, we detained him and formed a perimeter around him so that he didn’t pick that gun back up and shoot more people.”

https://www.abqjournal.com/1472698/the-world-is-a-scary-place.html

On June 16, the Albuquerque Police Department released a photo of the 13 guns and 34 magazines taken from militia members at the protest. In the APD photo there are 4 semi-automatic rifles. A controversy is now brewing over the handling of the protest by the Albuquerque Police Department (APD).

GOVERNOR AND MAYOR REACT

Both Governor Michelle Lujan Grisham and Mayor Tim Keller reacted in no uncertain terms about the NMCG being at the protest.

New Mexico Gov. Michelle Lujan Grisham said the militiamen had one reason for being there:

“to menace protesters. … there is no place for a group seeking to terrorize citizens.”

Albuquerque Mayor Tim Keller told the militia to stay away and said:

“We’re just trying to send a clear signal that we never want vigilantes in our town. We never want firearms at protests. … And both of those things … have been a dangerous combination for our community that we don’t want to see.”

https://www.npr.org/2020/07/06/886586653/new-mexico-leaders-to-militia-if-you-want-to-help-community-stop-showing-up-arme

THE SECOND AMENDMENT TO UNITED STATE CONSTITUTION

The United States Congress needs to take another look at the language of the he Second Amendment of the United States Constitution which reads:

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Over the years, the United State Supreme Court has expanded the Second Amendment right to right to keep and bear arms. It is referred to as the “right to bear arms” and is a right for people to possess weapons or arms for their own defense.

“In United States v. Cruikshank (1876), the U.S. Supreme Court recognized that the right to arms preexisted the Constitution and in that case and in Presser v. Illinois (1886) recognized that the Second Amendment protected the right from being infringed by Congress.

In United States v. Miller (1939), the Court again recognized that the right to arms is individually held and, citing the Tennessee case of Aymette v State, indicated that it protected the right to keep and bear arms that are “part of the ordinary military equipment” or the use of which could “contribute to the common defense.”

In its first opportunity to rule specifically on whose right the Second Amendment protects, District of Columbia v. Heller (2008), the Court ruled in the landmark case that the amendment protects an individual right “to keep and carry arms in case of confrontation,” not contingent on service in a militia. The Supreme Court also said that restrictions on the possession of firearms by felons and the mentally ill, on the carrying of arms in sensitive locations, and with respect to the conditions on the sale of firearms could be permissible under the constitution.”

https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms_in_the_United_States

CITIZEN MILITIAS DEFINED

“Private Militias”, more commonly known by the general public as “Citizen Militias” are loosely defined as “armed military groups that are composed of private citizens and not recognized by the United State Government or state governments.” Upwards of half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias.

STATE OF WYOMING OUTLAWS CITIZEN MILITIAS

The State of Wyoming is an exception. A Wyoming statute prohibits the very formation of private militias. Wyoming State Statutes provides:

“No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military company or organization, or parade in public with arms without license of the governor.”

Section 19-1-106, Wyoming Statutes Annotated

Wyoming statute also prohibits the public funding of private militias. Anyone convicted of violating the provisions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense.

THE INSURRECTION THEORY OF SECOND AMENDMENT

“Legal and political scholars have argued that citizen militias are driven by what is known as the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for self-defense and for “rebellion against a tyrannical government” defined as when a government turns oppressive and private citizens have a duty to “insurrect” or take up arms against their own government.

The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951):

“[W]hatever theoretical merit there may be to the argument that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.”

Legal scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.”

https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html

In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all. In other words, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.

Links to quoted sources are here:

https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html

https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html#ixzz6RZtSrv00

CONGRESS AND STATE SHOULD ENACT MILITIA REGISTRATION ACT

Citizen Militias are not regulated in the State of New Mexico and there is no comprehensive federal law that regulates them under the Second Amendment to the US Constitution. Those who take it upon themselves to associate and bear arms calling themselves “citizen militias” take it to the extreme when they attend protests fully armed in military attire proclaiming they are their to assume the responsibility law enforcement to protect people and property. Such attendance amounts to nothing but vigilantism.

As things escalate with mass murders and protests, the State of New Mexico and the United State Congress need to enact legislation that defines what a “citizen miltia” is and either ban them entirely or regulate all citizens militias.

If the United States Congress, and for that matter New Mexico, does not ban citizen miltia’s. A Citizen’s Militia Registration Act needs to be enacted. Citizen militias need to be define along similar lines of how “gangs” are defined under federal criminal law.

https://nij.ojp.gov/topics/articles/what-gang-definitions

A “citizens militia” could be defined as:

“An association of three or more individuals, whose members collectively identify themselves by adopting a group identity employing one or more of the following: a common name, slogan, identifying sign, symbol, flag, uniforms or military apparel or other physical identifying marking, style or color of clothing, whose purpose in part is to engage in the protection of private property and other people. A registered citizens militia may employ rules for joining and operating within the militia and members may meet on a recurring basis.”

A Citizen Militia Registration Act would require citizen militias to:

To allow only American Citizens to be members of a citizen militia.

Register with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) within the United States Department of Justice.

Require members to register their firearms with the ATFE.

Pay yearly regulation fees and firearm certification fees and carry liability insurance.

Identify all their members by name, address and contact information.

Prohibit felons from joining.

Limit their authority and powers so as to prevent militias to engage in law enforcement activities.

Require members to pass criminal background checks and psychological testing.

Mandate training and instructions on firearm use and safety.

Require all militias and its members to agree to follow all local and federal laws.

Failure to register as mandated by federal would be a felony.

THE WEAPON OF CHOICE

Since 1995, the United States has had 95 mass shootings, including seven of the 11 deadliest. There is no doubt we have a deadly mass shooting epidemic on our hands.

The mass shooting with guns in the last 10 years include: Orlando, Florida (49 killed, 50 injured), Blacksburg, Va. (32 killed), San Ysidro, Cal (21 killed), San Bernardino, (14 killed), Edmond Oklahoma (14 killed), Fort Hood (13 killed), Binghamton, NY (13 killed) Washington, DC (12 killed), Aurora, Colorado (12 killed), Sandy Hook Elementary School, Newtown, Conn (21 children and 6 adult staff members killed) and the largest mass shooting in this country’s history that occurred in Las Vegas, Nevada with at least 59 dead and at least 515 wounded and the Parkland/Stoneridge High School shooting that resulted in 17 children’s deaths, El Paso,Texas, 23 dead and 23 injured.

“The deadliest mass shootings in recent history have had one thing in common: the perpetrator used an assault rifle. These weapons possess an incredible amount of killing power, and amplify the destructive will of the person who carries out an attack. Nine people died and 27 were injured in a mass shooting in Dayton, Ohio in an attack that lasted 32 seconds. The killer used an AR-15 style assault rifle. Since 1999, there have been 115 mass shootings (defined below) in which 941 people were killed and 1,431 were injured. Of those 115 attacks, 32 — just over a quarter — involved semi-automatic rifles. But those attacks accounted for 40% of all deaths and 69% of all injuries. Since 2017, 12 of the 31 mass shootings involved assault rifles — which caused 39% of the deaths and 92% of the injuries. That includes the Las Vegas massacre — which alone accounts for almost 40% of all mass shooting injuries since 1999. The perpetrator of that shooting used over 20 assault rifles during that attack.”

https://www.axios.com/deadliest-mass-shootings-common-4211bafd-da85-41d4-b3b2-b51ff61e7c86.html

After so many mass killings, it is difficult to refute that something needs to be done about semi-automatic and automatic guns such as the AR-15 which are the type used in all the mass shootings. Semi-automatic guns are the weapons of choice that are carried by the citizen militias when they attend protests dressed in military garb and fully armed in order to intimidate.

RESPONSIBLE GUN CONTROL LEGISLATION

Assault weapons are also the weapon of choice for Citizen Militias. The regulation of Citizens Militias by congress in all likely will not solve a related problem and that is the proliferation of guns in the United States. Reason and responsible gun legislation on both the state and national level.

In New Mexico, our legislature should consider:

1. 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.

2. 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.

3. Requiring 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.

4. Enact a gun violence restraining order and extreme risk protection process to temporarily prohibit an individual deemed by a judge to pose a danger to self or others, from purchasing or possessing firearms or ammunition and allow law local law enforcement to remove any firearms or ammunition already in the individual’s possession.

5. Restrict and penalize firearm possession by or transfer to a person subject to a domestic violence protection order or a person, including dating partners, convicted of a domestic violence misdemeanor.

6. 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.

The Unites States Congress needs to consider:

1. Implementation of background checks on the sale of all guns.

2. Close the “Charleston loophole” or “delayed denial” where federally licensed dealers can sell guns if three business days pass without FBI clearance.

3. Call for the update and enhancement of the federal National Instant Criminal Background Check system (NCIS).

4. Institute mandatory extended waiting periods for all gun purchases.

5. Implement mandatory handgun licensing, permitting, training, and registration requirements.

6. Ban “bump-fire stocks” as was used in the Las Vegas mass shooting and other dangerous accessories.

7. Ban future manufacture and sale of all assault weapons and regulate existing assault weapons under the National Firearms Act of 1934, and initiate a federal gun buyback program.

8. Impose limits on high capacity magazines.

9. Prohibit firearm sale or transfer to and receipt or possession by an individual who has: (1) been convicted in any court of a misdemeanor hate crime, or (2) received from any court an enhanced hate crime misdemeanor sentence.

10. Institute mandatory child access prevention safe storage requirements and prohibit the sales of handguns with “hair triggers”.

11. Provide more resources and treatment for people with mental illness.

12. Enhance accountability of federally licensed firearms dealers.

13. Implement micro stamped code on each bullet that links it to a specific gun.

14. Produce ‘x-mart guns’ with Radio Frequency Identification (RFID) or biometric recognition (fingerprint) capability.

15. Limit gun purchases to one gun per month to reduce trafficking and straw purchases.

16. Prohibit open carry of firearms.

17. Digitize Alcohol, Tobacco and Fire (ATF) gun records.

18. Require licensing for ammunition dealer.

FINAL COMMENT

Until something is done with the enactment of citizen militia prohibition or regulation, citizen militias will be nothing more than vigilantes on the hunt using intimidation tactics to interfere with people’s first amendment rights as they attempt to assume law enforcement duties and responsibilities. Further without reasonable and responsible gun control legislation New Mexico and the United States need to brace for more mass shootings and violence given our toxic political climate during an election year and in the age of Trump given his propensity to call his followers to arms as our “law enforcement” President.

A link to a related blog article is here:

Details Emerge Of New Mexico Civil Guard Actions At June 15 Onate Protest; “Would’ve Blown His Brains Out If He Kept Shooting”; Trump’s Call To Arms; Learning Cool Things and Barbecuing On Fridays!

On June 15, a man was shot in Old Town over the “La Jornada” (The Journey) sculpture in front of the Albuquerque Museum. The shooting occurred during a protest for the removal of the figures of Juan de Onate de Salazar in the sculpture.

During the protest, there were 5 to 6 heavily armed New Mexico Civil Guard members, some dressed in military camouflage, present trying to “protect” the sculpture. It was reported that the shooting occurred when at least 3 of the protesters attacked a person identified as Steven Baca who was walking away from them. Steven Baca was struck in the head with a skateboard and Baca drew a gun, shot numerous times, with one shot hitting one of the protesters. The shot protester was rushed to the hospital and was listed in critical but stable condition. The shooting and violence resulted in the City taking the single figure of Onate in the sculpture grouping down.

On June 16, the Albuquerque Police Department released a photo of the 13 guns and 34 magazines taken from militia members at the. In the APD photo there are 4 semi-automatic rifles. A controversy is now brewing over the handling of the protest by the Albuquerque Police Department (APD).

THE NEW MEXICO CIVIL GUARD

On Sunday July 5, the Albuquerque Journal published a very lengthy front page story which is interesting and alarming on the New Mexico Civil Guard entitled “NM Civil Guard Is Marching Forward, Despite Calls To Stand Down” with the story written by Matthew Reisen, a Journal staff writer. According to a Journal introductory Editor’s Note: Journal reporter Matthew Reisen accompanied by a Journal photographer spent a weekend in Wagon Wheel, New Mexico with the New Mexico Civil Guard, the armed group that confronted protesters trying to remove the statue of conquistador Juan de Oñate in Old Town. You can read the full article here:

https://www.abqjournal.com/1472698/the-world-is-a-scary-place.html

HIGHLIGHTS OF ALBUQUERQUE JOURNAL ARTICLE ON JUNE 15 ONATE STATUE PROTEST AND SHOOTING

Following are the major highlights of the June 15 Onate Statue protest and shooting gleaned from the Albuquerque Journal news article:

Bryce Provance, age 30, is the chaplain and founder of the New Mexico Civil Guard (NMCG). Provance said the NMCG got involved in the Oñate incident after a local group associated with a presidential campaign told them there would be a riot after the statue fell and said they wanted “nothing to do with” Oñate and were there to give protesters “something to think about” and he had this to say:

“You know what the police are going to do, you don’t know what we’re going to do. … Our goal was to be that question mark in their minds that made them think maybe this isn’t the greatest idea to go burning through Old Town.”

NMCG group members said things would have escalated “either way” but admitted the protesters called their bluff on their firepower when they pulled out a pickax to remove the statue despite the armed patrol. According to the NMCG, its members do not shoot unless shot at or aimed at and they retreated soon after the pickaxe came out to knock down the Onate statue.

NMCG member David Rice said APD should have posted officers at the Oñate protest. Rice called Steven Baca’s actions of shooting a protester a “clean shoot,” asserting that Baca was being attacked. The shooting is still under investigation. Steven Baca’s lawyers say it was self-defense. District Attorney Raul Torrez has dismissed the most serious charges against Baca and far lesser charges have been filed against him that are unrelated to the shooting. Baca is charged with battery on other protesters and carrying a concealed weapon without a license.

After the gunfire, NMCG founder Bryce Provance said his men set their “scope” on Baca and “would’ve blown his brains out” if he kept shooting. NMCG member John Burks, an Army veteran who served in “quite a few deployments” said that he could not “specifically speak on” his kicking Steven Baca’s gun away to “secure the crime scene“ but did say “People said we protected him after he shot. … No, we detained him and formed a perimeter around him so that he didn’t pick that gun back up and shoot more people.” What the NMCG did with Steven Baca would also likely fall under the legal definitions of “aggravated assault with a deadly weapon” or “kidnapping.”

Civil Guard members told the Journal they take zero responsibility for what happened at the June 15 protest. They said Baca was “justified” in shooting Williams and believe their armed presence stopped more bloodshed.

Provance said when they were detained after the shooting, an APD officer and FBI agent treated them like “witnesses.” After being questioned and their guns siezed, Provance said the APD officers told them if it wasn’t for them, more people “would’ve left in body bags.” That may have been true, but what also would have been true is that NMCG members who did the shooting would have been arrested and charged with first degree murder.

THEY BARBECUE ON FRIDAYS AND OTHER THINGS WORTH NOTING

The July 5 Albuquerque Journal report contains the following highlights worth noting:

1. Local leaders and law enforcement authorities have condemned the group’s actions at the June 15 Onate statue protest even though the guard says it was not there to instigate and had “no clue” who the shooter Steven Baca was who shot a protester.

2. Albuquerque Police Department (APD) is not investigating the group but the city has asked the FBI to determine whether the Civil Guard meets the federal definition to be classified as a hate group. An APD spokesman said the group has repeated “blatant falsehoods” on social media to inject “anti-APD” sentiment into Albuquerque.

3. An FBI spokesman said the agency doesn’t designate hate groups. The FBI will “not confirm or deny” whether the agency is investigating the group.

4. The Black Lives Matter movement considers NMCG a hate group. Black Lives Matter organizer Kia Russ is quoted in the article as saying:

“Plain and simple, lives were at risk when they showed up as this ‘Civil Guard,’ and I feel that the police need to hold these individuals and hate groups accountable due to their blatant acts of just hate”.

Russ said the group with its guns, armor and posturing is a prime example of “white male fragility” emboldened by President Donald Trump.

5. Mark Pitcavage, with the Anti-Defamation League, said the New Mexico Civil Guard militia movement “as a whole” is about anti-government extremism, not white supremacy. According to Pitcavage, the Civil Guard, like most militias started since 2017, show up at places where they think leftists will be such as Black Lives Matter and George Floyd protests. Pitcavage had this to say about the recent militia that have emerged:

“There is a small amount of crossover [and some hold elements of racism and bigotry within their ranks but its too early to tell their intent] … They haven’t had much time to establish much of a track record. … They like the idea of confronting the leftists while rationalizing it, and by telling people that they are there to help police keep the peace or help protect everybody’s rights. … But what they really want to do is stare down the leftists and some of them probably wouldn’t mind brawling with them. … Even if they don’t ever break the law, they might do damage in terms of conspiracy theories, in terms of spreading extreme rhetoric and ideas. … The militia movement is not a beneficial or benign movement … Even if a particular militia group doesn’t have a track record of violence, that doesn’t necessarily mean it’s a good thing.”

6. Bryce Provance, age 30, the chaplain and founder of the New Mexico Civil Guard (NMCG) proclaims he is 3 years sober, carries a Bible and claims he is the only member of the NMGC that does not carry a gun. Provance hides several revealing tattoos, including a swastika on his shoulder that he said he got “to survive” a lengthy prison stretch. Provance told the Journal his group does not take sides and is “very centrist” even though the majority of its members lean conservative and libertarian.

Bryce Provance told Journal reporter Matthew Reisen:

“The world is a scary place and, it seems like, if you don’t have friends with weapons – you better find some. … So we decided we want to protect our communities, we want to be an auxiliary force. … We go out and train, we learn cool stuff, then we barbecue on Fridays. … Your feelings don’t matter. … Well they do, but your feelings don’t dictate what happens in the world. … Because I have feelings on history, doesn’t mean that history is fake, just because I don’t like it. My feelings shouldn’t dictate your actions, your feelings don’t dictate my actions. Laws and the constitutions dictate our actions.”

7. Members of the NMCG claim they are the victims of bad press and that they have been victimized by being fired from their jobs and threatened. They strongly dispute they are racists by noting they have Hispanic and African American members. According to NMCG member David Rice:

“This [being a member of NMCG] isn’t something you do because you hate something. … This is an act of love, kindness and generosity. We know we’re putting ourselves in harm’s way.”

8. APD spokesman Gilbert Gallegos has told the NMCG they “are not welcome” at public events and said:

“The fact remains that the New Mexico Civil Guard has actively worked to intimidate peaceful protesters, make them fearful and raise tensions “Their presence and actions have made these events less safe and put the lives of officers in jeopardy.”

9. NMCG Founder Bryce Provance says his group is now practicing crowd control techniques and plans to elect a “colonel” who would oversee members statewide so they can grow their ranks and said the NMCG will go when called, whether it’s to a campaign event.

10. The NMCG is a mix of characters. According to the Journal article “Some are loud and others are quiet, they talk about the end of the world “as we know it” and wax poetic on the “good old days” of militiamen before everything got “politicized.” Members advance conspiracy theories in one breath and talk about creating their own political party in the next. Its members seem to align best with President Trump by expressing their opinions on issues using Trump’s inflammatory rhetoric. CNN, Bill and Hillary Clinton and former Vice President Joe Biden are held in low esteem by the group.”

NOT THE FIRST TIME CITIZENS MILITIA SHOW UP TO PROTESTS

On June 2, it was reported on KUNM in Albuquerque after hundreds of people demonstrated peacefully on and around the University of New Mexico campus armed militia men showed up along Central Avenue. According to the KUNM news report, minutes after organizers told protesters to head home, the Albuquerque Police Department radio dispatch indicated officers had seen men with long guns east of UNM. Just west of campus, protesters came upon a group of at least 9 mostly white men on the side of the road, by a white cargo van, with body armor and assault style weapons. Several protesters were upset at the presence of the armed men . One Black Lives Matter protester was so upset that he cried out repeatedly “We have a peaceful protest! … Go home! Don’t ruin it!” Other protesters urged their fellow demonstrators to ignore the provocation and keep moving.

According to the KUNM report:

“The armed men said they were from the New Mexico Civil Guard and that they were there to protect people. The militia group has been recruiting people throughout New Mexico online since March, and made a showing at an Albuquerque anti-shutdown protest in late April. A post on their Facebook page, which features pro-Trump posts and people posing with yellow “Don’t Tread On Me” flags, said their members would “be protecting local businesses every night until Sunday” amid what they called “violent protests.”

The first night of peaceful protests in Albuquerque calling for justice for George Floyd turned to violence when another group of people showed up after the protesters left. A confrontation with APD resulted, with some vandalism, but the incident ended with no one injured and the group dispersed. All subsequent protests have been relatively peaceful.

www.kunm.org/post/armed-militia-group-alarms-blm-protesters-late-monday-after-peaceful-rally

APD DISCOURAGES VIGILANTISM

On June 4, after three nights of protests, the Albuquerque Police Department felt compelled to discourage anyone from acting as vigilantes. APD’s discouragement is directly related to several groups saying they have been going to the protests to try and ease tensions and to protect local businesses while armed from break-ins, vandalism and looting. APD said that while these groups have good intentions, they’re asking them to leave public safety in the hands of trained law enforcement professionals.
APD spokesman Gilbert Gallegos put it this way:

“We don’t want outside groups no matter what they’re intentions are to go out and enforce laws … Even if they have good intentions to protect protesters or property, generally it’s a bad idea. It can actually make the job more difficult for police, it can escalate tensions with people who are out there.”

Although New Mexico is an open-carry state, and people are allowed to have guns, APD is asking anyone going to the protests to leave the firearms at home in order to avoid escalating tensions.”

COMMENTARY AND ANALYSIS

TRUMP’S CALL TO ARMS

The rise of vigilantism throughout the country and in New Mexico is on the rise and President Trump is contributing to the toxicity. There is no doubt that President Trump promotes hostility, mistrust and violence and he thrives on it and enjoys it. Trump is incapable of understanding the anger and the frustration African Americans feel about the violence they have endured at the hands of law enforcement for so many years. He promoted violence when running for President, he does it at his rally’s and he is doing it again after the killing of George Floyd.

Trump has already begun a campaign of promoting civil disobedience during the pandemic by tweeting on April 17 “LIBERATE VIRGINIA and save your great 2nd Amendment. It is under siege!”, “LIBERATE MICHIGAN!”, “LIBERATE MINNISOTA!” There is nothing that would satisfy Trump supporters more than to blow up our democracy and simply watch as Trump enjoys while watching the country burn to the ground.

On Friday, May 29, President Donald Trump tweeted amid unrest in Minneapolis that “when the looting starts, the shooting starts”. Trump’s tweet was flagged by Twitter as violating rules against glorifying violence. The tweet was the same language used by a Miami police chief in 1967 who believed that violent protests should be met with deadly force. About 13 hours after Trumps Tweet, he took to Twitter again and to claim that he wasn’t suggesting the shooting of rioters. Instead, he said he was referring to gun violence that has been spurred by the unrest.

https://www.splcenter.org/hatewatch/2020/05/29/trump-tweets-when-looting-starts-shooting-starts-extremists-will-respond

https://kstp.com/politics/trumps-tweet-about-rioters-echoes-1960s-miami-police-chief-may-29-2020/5745055/

Soon after his telephone conference call with the country’s governors, President Trump declared himself “your president of law and order.” He went on to say:

“… If a city or state refuses to take the actions necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them. … I am mobilizing all available federal resources, civilian and military, to stop the rioting and looting to end the destruction and arson and to protect the rights of law abiding Americans, including your Second Amendment rights … . “

Trump said he would call out and mobilize “thousands and thousands“ of soldiers to keep the peace.

When Trump says “I am mobilizing all available federal resources, civilian and military, to stop the rioting and looting to end the destruction and arson and to protect the rights of law abiding Americans, including your Second Amendment rights”, many of his supporters no doubt are taking it to mean as call for vigilantism.

NEW MEXICO CIVIL GUARD

The Albuquerque Journal article confirms what many in law enforcement and the general public believe about the New Mexico Civil Guard and that it is organized vigilantism, like many in the United States. It is a symptom that is the result of President Trump’s call to arms on a national level.

Frankly, with so many guns seized by APD after the June 15 protest, Albuquerque is damn lucky it did not have a mass shooting during the June 15 protest. The 13 guns, including 4 rifles, and 34 magazines seized is an enormous amount of firepower that no doubt could have resulted in mass injuries and killings.

People showing up to peaceful protests bearing long rifles and assault rifles under the guise of protecting the general public, or for that matter themselves, and businesses from violence, vandalism and looting need to be called what they are: vigilantes. They are trying to take the law into their own hands and holding themselves out as law abiding citizens when they are not and they likely have evil intent. They are “on the hunt” to be able to use their weaponry when they attend protests.

Citizen Militia’s need to be condemned in no uncertain terms. It needs to be made clear they have absolutely no business showing up armed to the hilt with assault weapons and wearing military fatigues to peaceful protests. Such conduct only intimidates and antagonizes people which is the real intent of such militias.

No doubt self-appointed “citizen militias” and their supporters will argue they have second amendment rights to bear arms. The argument is nothing but a rue and a convenient excuse to start trouble.

Second Amendment advocates represented by citizen militias always ignore and seem to want to usurp people’s First Amendment rights to free speech and assembly. Many would say are rights far more important than their right to bear arms.