On January 19, the 2021 New Mexico legislature convened for its 60 day session. As of February 12, there are 3 major legislative initiatives that have passed at least one chamber of the New Mexico legislature that are worth noting.

SENATE APPROVES REPEAL OF ABORTION BAN

On Thursday, February 11, the New Mexico Senate passed the repeal of the state’s abortion ban. As the saying goes “elections have consequences”. Two years after voting down a bill that would have repealed the long-dormant New Mexico abortion ban, the New Mexico State Senate voted 25-17 to repeal the 1969 abortion law making abortions illegal. The state law was suspended because of US Supreme Court ruling of Roe v. Wade making abortions legal. However, if the US Supreme Court would reverse Roe v. Wade, the 1969 abortion law would be enforceable.

The 2020 NM general election resulted in the defeat of 5 long serving, conservative Democrat Senators who for years voted with Republicans to form a “conservative coalition” that stymied more progressive legislation sent to the Senate by the New Mexico House. The repeal now goes to the he Democratic-controlled House where final approval is expected. Once approved by the House, it will be sent to Governor Michelle Lujan Grisham who has already said she has said she will sign the repeal legislation.

SENATE APPROVES ECONOMIC RELIEF

On Wednesday, February 10, the New Mexico Senate passed a corona virus pandemic-related financial relief measure. The legislation includes low interest loans to small businesses that have been battered by the virus and closures by the emergency health restrictions. Bills that passed the Senate include tax breaks for restaurants and a temporary waiver on liquor license fees. One bill would authorize loans of up to $150,000 to small businesses at sub-prime rates of less than 2% annual interest. The bill passed on a 35-3 vote with several senators recusing themselves from voting because of ties to businesses that might apply for the relief.

The bill will create a state trust fund to invest up to $500 million in loans to businesses with ownership ties to New Mexico. The bill expands the more limited small business loan program enacted last year that provides a total of about $40 million in loans of as much as $75,000 each. The new program would allow the loans to be refinanced at more favorable terms. The State Senate also unanimously approved a proposal to provide a $600 tax rebate to working, low-income families and provide a tax break on business sales and services to food establishments such as restaurants, craft breweries and food trucks.

On February 10, the Senate approved on a 41-1 vote a bill that would waive fees for all liquor licenses in order to help the hospitality industry.

HOUSE LIQUOR LICENSE REFORM

On Wednesday, February 10, HB 255 passed the House Commerce and Economic Development committee on a 6-3 vote to move the bill forward, after extensive amendments, without any recommendation. HB 255 will allow home-delivery of alcohol in some circumstances and establish tax breaks intended to help the holders of certain liquor licenses HB 255 proposes a new license that will allow restaurants to expand from serving beer and wine to hard liquor. Under HB 255, local communities could choose to opt out.

Democrat Representative Antonio “Moe” Maestas of Albuquerque is a co-sponsor of HB 255 said that the legislation would help the state struggling economy and said:

“We’re going to try to our darnedest to jump-start the economy once COVID is gone from our communities. … [ The bill is to] save our restaurant industry and save our tourism industry.”

COMMENTARY AND ANALYSIS

There are still a significant number of issues that the New Mexico legislature will be dealing with over the next few weeks remaining of the session. Those include the legalization of recreational marijuana, the “red flag” law dealing with the ability for law enforcement to temporarily seize guns by court order from those who are a threat to themselves or others and comprehensive “liquor license reform.”

On November 12, 2014, the United States Department of Justice (DOJ) filed its action against the City of Albuquerque seeking to remedy a pattern or practice of excessive force and deadly force by the Albuquerque Police Department (APD).

In response to the litigation, two days later, the City and the DOJ agreed to a Court-Approved Settlement Agreement (CASA), requiring the City to implement comprehensive reforms at APD to address deficiencies in the areas of use of force, crisis intervention, deployment of specialized units, supervision, management, misconduct investigations, and data collection and analysis.

Editor’s Note: The postscript to this article gives a 4-point summation of what is included in the 271 reforms.

The CASA is a 106-page negotiated Court Approved Settlement Agreement ( CASA) that mandates 271 major reforms. Implementation of the CASA was to be over a 4-year period and after a 95% compliance over two consecutive years in 3 identified compliance areas and the case was to be dismissed. Its now been over 6 years and the case has not been dismissed. The CASA provides that it is “designed to ensure police integrity, protect officer safety, and prevent use of excessive force, including unreasonable use of deadly force, by APD.”

A link to the court approved settlement agreement (CASA) is here:

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

MOTION FILED FOR “USE OF FORCE” INVESTIGATION TEAM

On Friday, February 5, the City of Albuquerque and the Department of Justice (DOJ) filed a “Joint Motion For Entry of Stipulated Order Establishing An External Force Investigation Team”. The motion has attached to it a proposed Stipulated Order that has been negotiated between the city and the DOJ with no objection from the court appointed Federal Monitor. The APD Police Union is an intervenor in the case, but did not sign off on the motion and ostensibly was not involved with negotiation of the stipulated order. A hearing must be held by the Federal Judge who must approve the Stipulated Order before it can be implemented.

A link to the Motion and the Stipulated Order is here:

https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view

According to the motion filed, the proposed Stipulated Order will require the City to establish, on a “temporary basis”, an External Force Investigation Team (EFIT) to assist the Albuquerque Police Department (APD) in conducting use of force investigations by APD officers, while also assisting APD with improving the quality of its use of force by police investigations.

The EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the proposed order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.

PROPOSED TO STIPULATED ORDER

The proposed stipulated order provides for the establishment of the “External Force Investigation Team” (EFIT):

“EFIT shall be overseen by an Administrator. The City shall empower the EFIT Administrator to hire and retain the staff necessary to fulfill the requirements of this Order. It is anticipated that the EFIT Administrator will hire and retain a number of investigators, as well as administrative support staff and Supervisors, as necessary to fulfill the duties under the EFIT Administrator’s contract with the City. The EFIT Administrator shall ensure that a sufficient number of EFIT Investigators to meet the requirements of … this Order are physically present in Albuquerque and able to respond to the scene of Level 2 and Level 3 uses of force.”

The proposed Stipulated Order provides that the Independent Monitor will continue to provide extensive technical assistance to the City regarding Internal Affairs processes, including the period before an EFIT administrator is selected. Presumably, the specialized unit would be disbanded when APD becomes proficient at investigating itself, but that is not outlined and neither is the actual cost to the city.

The Stipulated Order also provides that the additional services to be provided by the Federal Monitor will be additional to the auditing work under the CASA. According to the Stipulated Order, the monitor and the city will have to enter into a separate contract providing additional compensation. The Federal monitor’s team has already been paid $7.5 million for 6 years of work and is currently being paid $1.5 million a year. The Federal Monitor employees a 9-member professional team in addition to local staff and the city provides office space.

The Motion outlines the time line for he process:

“In the first months following the entry of the Stipulated Order, the Order requires the City to make three key improvements, in addition to establishing EFIT, to bring its force investigations into compliance with the CASA (Court Approved Settlement Agreement) and to maintain compliance after EFIT is gone.

Third: The Order requires APD to develop new training for force investigators within three months of the entry of the Order. These improvements are necessary to ensure that APD can make positive and durable changes to its force investigations.”
…
As a way to consolidate and track all of the initiatives required by the Stipulated Order, the Order requires the City to develop and file with the Court, within 5 months of the entry of the Order, a remedial action plan that “will identify concrete actions that the City and EFIT will take to improve the quality and timeliness of investigations of Level 2 and Level 3 uses of force.” After filing the plan, the City will report to the Court quarterly on its progress in implementing the plan, including metrics that will indicate whether APD is making progress toward regaining full responsibility for conducting investigations of Level 2 and Level 3 uses of force.”

According to the stipulated order, this city will issue a Request For Proposal (RFP) to seek bids for an EFIT administrator by early March. An administrator would be hired by May 3. The agreement does not say exactly how many investigators the EIFT administrator will be given authorization to hire nor how much the unit will cost, but it does say that at least 25 investigators must be hired.

The Stipulated Order says that no EIFT personnel:

“shall have any current or previous employment relationship or contract for services with APD or the City.”

What this means is that no one from Albuquerque, including retired APD or other retired law enforcement personnel can be hired. The practical effect is that out of state people will have to be hired and they likely would have to work remotely from out of state.

USE OF FORCE INVESTIGATION TEAM

It was during the December 4 status conference hearing on the 12th Federal Monitor’s that the “Use of Force” Investigation Team was first revealed to the general public and it was disclosed that the City and the DOJ were negotiating a stipulate order for a “use of force team”. The stake holders in the case, including APD Forward were taken by surprise by the announcement in that they were never told of the negotiations and did not take part or allowed to give input on the proposed Use of Force Team.

Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told the Federal Court:

“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”

The enforcement action that could have been filed is a “Motion for Contempt of Court” seeking sanctions against the City and APD for intentional violations of the CASA. Another option would have been to have had APD placed in a “receivership” with the appointment of a Special Master to take over the day-to-day management of APD, something advocated for by police reform advocacy groups. During the December 4 hearing, many of the friends of court and other stake holders asked that APD be placed into receivership while others also asked that the police union be dismissed from the case.

As presented during the hearing, the investigation team will be totally independent from the city and the APD Internal Affairs Unit and APD Force Review Board. the Use of Force Investigation Team would consist of highly experienced professionals, potentially from all over the country, whose responsibility would investigate level 2 and level 3 uses of force which involve great bodily harm, permanent injury or death. The outside team of experts would interact with APD personnel, gather evidence as needed and conduct interviews if needed and submit final reports within a very short time frame of weeks. Normally, such investigations have been taking upwards of 6 months to a year.

Editor’s Note: Level 1 use of force is force that does not result in injury or complaint of injury; Level 2 use of force force that does result in injury or complaint of injury; and Level 3 is force that results in serious injury, hospitalization, or death.

Killebrew said the proposal is for the city to hire external investigators who could work remotely from anywhere in the country, at least until the pandemic no longer poses a problem. Existing Internal Affairs Force Division detectives would conduct the on-the-ground investigation at the scene, including taking photographs and taking witness interviews. The investigation materials gathered would be sent to the external investigators. The external investigators who would determine if they think force was improperly used. Discipline recommendations would also be made.

The city’s procurement process would be used and the city would fund the services. The goal would be to hire the most qualified professionals with a proven track record. Final reports prepared by the “use of force” investigation team would then be forwarded to the city’s Use of Force Board.

According to Killebrew, the use of force investigation team will not be easily side tracked by APD interference and resistance and put it this way:

“There are not that many human beings that stand between Internal Affairs Force investigators and the chief of police … We believe that if the external team conducts the investigation and recommends a finding of out of compliance and recommends discipline, it will be obvious to us if the external team’s findings are being undermined by the commander over IAFD, the deputy chief or by the chief. We can then target any necessary action at those levels of command.”

Federal Judge James Browning, to whom the case is assigned, stated that a stipulated order creating a “use of force” investigation team was not as intrusive as putting the city under a receivership. However, Judge Browning did question if creating such a “use of force” team outside the city for investigation was a “tremendous loss of sovereignty and self-direction by the city”.

12TH FEDERAL MONITOR’S REPORT PROMPTED CREATION OF THE USE OF FORCE INVESTIGATION TEAM

After the 12th Federal Monitor’s report was released November 2, the DOJ and the City realized that something had to be done when it came to APD’s failure to address use of force investigations.

On Friday, October 6, 2020 Federal Monitor Ginger told the Federal District Court Judge James Browning overseeing the DOJ reform effort:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience … I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

On November 2, 2020, the Monitor filed 12th Compliance Audit Report of APD. The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The 12th Federal Monitors’ report contains a summary that highlights major deficiencies that have set back compliance levels resulting is delay of the reforms.

For at least the 4th time, the monitor reported that the “Counter Casa” effect was interfering with APD accomplishing the implementing the CASA reforms. It was in the Federal Monitors 10th audit report that the “Counter CASA” effect was fully explained. According to the Federal Monitor’s 10th report:

“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
…
“Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example:

• Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met;”

According to the 12th Monitor’s report:

“[The federal monitor] identified strong under currents of the Counter Casa effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.

“[The monitoring team] have no doubt that many of the instances of non-compliance we see currently in the field are a matter of “will not,” instead of “cannot”! The monitoring team expected there would be a period of time during which mistakes were made while applying the new policies and training, but issues we continue to see transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership.”
…

During the reporting period we encountered system-wide failures related to the oversight of force used by APD officers and supervisory and command review of those uses of force. The monitoring team has been critical of the Force Review Board (FRB), citing its past ineffectiveness and its failing to provide meaningful oversight for APD’s use of force system. The consequences are that APD’s FRB, and by extension APD itself, endorses questionable, and sometimes unlawful, conduct by its officers.

COMMENTARY AND ANALYSIS

It is understood that “settlements” are preferred by the courts instead of aggressive litigation, hearings and trials. Notwithstanding, it is extremely disappointing that the City and the Department of Justice (DOJ) essentially ignored and turned their backs on the citizens of Albuquerque, including victims of police misconduct, the amici groups and public stakeholders who they are supposed to be representing, in order to negotiate the creation of a “use of force investigation team” with the city.

When it comes to government and law enforcement, settlements must include conferring with those who will be affected the most by those settlements. In criminal prosecutions for example, plea agreements are between the government and the defendant in the case. However, there is a “victims bill of rights” in New Mexico and prosecutors have a duty to confer with victims of the crime before agreeing to plea and disposition agreements and sentencing agreements approved by a Judge.

WHERE THERE IS A WILL TO OBSTRUCT AND DELAY APD WILL FIND A WAY

The single most remarkable understatement made during the entire one-day December 4 status conference hearing was made by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew when he said:

“APD has proven over and over again its agility to avoid the requirements of the CASA.”

Nothing gets past Kilebrew and the DOJ!!!! Notwithstanding his comment, Killebrew felt the “use of force” investigation team should be implemented even with the risk of APD continuing to avoid the CASA. The DOJ is seriously mistaken if it feels a use of force team, especially whose work is done remotely, will be able to avoid APD agility and resistance to the reforms.

For the past 6 years, the CASA has been plagued with inconsistencies, conflicts, and the political turmoil. In the last 6 years there have been 3 United States Attorneys General, 2 Federal Judges assigned to the case, 2 appointed New Mexico United States Attorneys, the City has elected 2 Mayors, there have been 3 police Chiefs, the court has called a “reset” of the process 3 years ago after the current Mayor was elected, the APD has undergone at least 3 reorganizations, the high command of Deputy Chiefs and Area Commanders has changed at least 3 times with reorganizations.

The findings of the 12th Monitors report is what prompted the city and the DOJ to enter into the Stipulated Order to create the Use of Force Investigation Team. After 6 years, it is pathetic that there is still overt resistance to the consent decree by not assuming responsibility for investigating use of force and deadly force cases in a proper way.

What the City and the DOJ have done is negotiate a stipulated order to create another level of bureaucracy with the creation of a “use of force team.” Even though motion says that the EFIT unit will established on a “temporary basis”, given APD’s failed track record of the past 6 years and millions spent, it’s more likely than not the EFIT will be around for some time. The DOJ is essentially throwing in the towel on forcing the city to do what is required under the CASA. The DOJ is giving APD another way out of a problem its management and the police union have created on their very own.

There have been only 3 consistent factors relating to the CASA: the reforms mandated by the CASA, the same federal monitor and resistance to the reforms by APD.

The creation of a new use of force team is nothing more than creating another level of bureaucracy that will be costly. It will almost assuredly guarantee that the CASA will continue for any number of years and beyond the 6 years as was originally envisioned because APD will still have not learned to properly do use of force investigations.

It’s more likely than not APD management, the union and rank and file will continue with their efforts of “noncompliance”, not overtly, but in a manner to avoid detection and once again using “agility to avoid the requirements of the CASA.”

Where there is a will to obstruct the CASA reforms, APD and the Police Union always find a way and the City and the DOJ have failed to learn that lesson after 6 years and millions spent on the reform effort.

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POSTSCRIPT

The CASA mandates 271 major reforms. Implementation of the CASA was to be over a 4-year period and after a 95% compliance over two consecutive years in 3 identified compliance areas, the case was to be dismissed. The CASA provides that it is “designed to ensure police integrity, protect officer safety, and prevent use of excessive force, including unreasonable use of deadly force, by APD.” The settlement agreement requires APD to strive and use its best efforts to come in compliance with all requirements within four years, and if that were to occur, the case would be dismissed.

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

Among the 271 reforms agreed to by the City and APD are:

1. The city agreed to a complete re write of APD’s Use of Force and Deadly force Policies. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re writing and implement new use of force and deadly force policies are mandated. Certain types of hand-to-hand techniques are barred under the CASA unless the officer is in a situation that require the use of lethal force if it were available. Neck holds, sometimes called choke-holds, are explicitly forbidden to be used by officers except in situations where lethal force would be authorized. APD officers are prohibited from firing their weapons at moving vehicles in all but life-threatening situations. APD agreed to revise and update its policies on the mandatory use of lapel cameras by all police officers.

2. The CASA mandates the teaching of “constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with all and especially the mentally ill. Stricter training and restrictions on the use of nonlethal force is required under the CASA, and it requires more training and controls over the use of Tasers by officers along with quarterly audits of their use.

3. The agreement mandates that APD adopt a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented and outlining details how use of force cases would be investigated. It requires far more reporting by officers and field supervisors and also requires detailed reviews of those reports up the chain of command within the department. Sergeants and lieutenants are required to be much more involved in field supervision and review of use of force by officers.

4. The city agreed to the creation of a Police Oversight Board (POB) as a civilian review agency that independently reviews citizen complaints, serious uses of force and officer-involved shootings by APD. The civilian agency also monitors, reviews and make recommended changes to APD policy on use of force. The city agreed to the creation of Police Civilian Advisory Councils (CPCs), one in each of the 6 APD area commands, designed to increase community interaction.

5. The City agreed to create a new “Use of Force Review Board” to oversee all internal affairs investigations of use of force and deadly force. A new chain of command for the review of Internal Affairs reports of officer-involved shootings was created that reviews the Internal Affairs Reports and makes recommendations on discipline or asks for further investigation of an incident, and the board makes recommendations on discipline to the APD Chief. The Use of Force Board is required to make quarterly reports after reviewing all use of force reports to identify trends and policy changes.

On February 4, 2021 Channel 7 did a “Target 7” investigation report highlighting the court approved Federal Monitor Dr. James Ginger and his company Public Management Resources. The report was fixated on what the city has paid over the last 6 years for the auditing of APD’s progress with the Court Approved Settlement Agreement (CASA) reforms. The Target 7 investigation reported the city has extended the original 4-year contract and the Federal monitor has been paid $7.5 million for 6 years of work by the monitoring team.

The link to the entire Target 7 report is here:

https://www.koat.com/article/doj-settlement-agreement-with-the-city-enters-7th-year-dollar20-million/35421909

The Target 7 Report said the city has incurred “other costs associated with the agreement totaling $20 million.” The city provided Target 7 documents showing the cost of reforming APD thus far is $20-million. The Target7 report did not make it clear that the $20 million did not go directly to the federal monitor but was used by APD to add more staff, and more equipment. The $20 million was spent by APD on APD police training in constitutional policing practices, mandatory crisis intervention techniques and de-escalation tactics and re writing of new use of force and deadly force policies and APD personnel required to oversee the reform process and Internal Affairs functions.

Quoting the Channel 7 Report:

“Target 7 went to the city’s online checkbook and found during the original 4-year contract Ginger’s company made about $4.5 million. Over the past two years, he had made about $3 million. The city attorney says Ginger wanted more money because more work needed to be done.”

[T]he city is now paying Ginger’s company $1.5 dollars a year, according to the city’s online records. One requirement of his job is to write quarterly reports after reviewing instances of use of force within the department and grades the progress.”

Target 7 did not report that Ginger has prepared 12 Federal Monitors Reports over the last 6 years and that are well over 300 pages long. The reports contain case studies and goes paragraph by paragraph of the 107-page court approved settlement agreement and provides data on each of the 271 reforms and the progress made.

TARGET 7 INVESTIGATIVE REPORTER SEEKS MONITOR’S POSITION

Target 7 boldly dispatched its Investigative Reporter T.J. Wilham to track down Dr. Ginger and to interview him in the traditional “no advance warning” style such as Target 7 reporters are known for. T.J. Wilham worked as a reporter for a number of years for the Albuquerque Journal, then quite to go to work for Republican Mayor RJ Berry as a spokesperson and then was appointed as Director of the APD Real Time Crime Center. Within one year after Mayor Keller was elected, Wilham left the city with confidential sources saying he was asked to leave and he then went to work for Channel 7 as its “Investigative Producer.”

Quoting the Channel 7 report:

“Target 7 wanted to know why APD wasn’t making progress. Producers and reporters have gone to the address for Ginger’s company listed on his website dedicated to the settlement agreement. The office is actually located inside a city-owned senior center. There are no signs on the door.

“Any press or public statement made by the Monitor regarding its employment or monitoring activities under this Agreement shall first be approved by DOJ and the city,” the agreement says.”

COMMENTARY: Target 7 Sending a reporter and producer to the Monitor’s office without making an appointment or contacting him before to interview him and get on camera interview is a classic and worn out ambush tactic used by local investigative reporters such as Target 7. Target 7 did not have to interview the monitor to get his opinion or comment. Target 7 could have read any one of the Monitor’s 12 reports to get his thoughts and opinions for the delay in implementing the reforms. Target 7 failed to quote a single Monitor’s Report on his findings which are clearly the Monitor’s comments in writing and submitted to the Federal Court and made a part of the court docket on the case.

AUDITING THE MONITOR

According to the Target 7, it claims its investigation revealed 3 city councilors a few years ago wanted to know who was monitoring the monitor as if it was a major revelation. Those who have been following the federal case and CASA reforms were fully aware of the city councilors request.

To quote the Target 7 report:

“That audit never happened, even though $25,000 was earmarked for the project. Target 7 asked the two city councilors who called for the audit why it was not performed and they said the federal judge delivered them a message through their attorney. Former city Councilor Brad Winter had this to say:

“[The judge] said ‘I can’t stop you from doing the audit but there could be consequences … So at that point, everyone advised us it would be better not to do the audit.” Target 7 pulled up transcripts from a court hearing in which the judge said he was not pleased with the city’s plans for an audit. He told the monitor in court quote “I don’t want to have too much of your time and energy spent looking sideways when we have so much ground to cover going forward.”

Channel 7’s report was misleading. It failed to report that the transcripts of the court hearing it reviewed was a hearing conducted by Federal District Court Judge Brack to whom the case was originally assigned to and who is now retired. The case has for the past few years has been assigned to Federal District Court Judge James Browning. Target 7 failed to ascertain Judge Browning’s position on a city audit of the Monitor.

CITY RESPONDS TO TARGET 7

Target 7 interviewed City Attorney Estaban Aguilar and asked him about the monitors latest report that says APD “failed miserably in its ability to police itself.” Aguilar had this to say:

“I disagree with the adjectives use with the court but there is no disagreement with the data.”

“We haven’t started having those discussions yet,” Aguilar said.

Republican City Council Don Harris piled on and told Target 7:

“I am trying to sound the alarm here that we are in year 6 of a 4 year contract. … In the self-interest he has is to find fault to keep the city’s checkbook open.”

COMMENTARY: Target 7 never asked Harris why he is questioning the Monitors billings now. Don Harris was on the City Council 6 years ago when the Department of Justice found a culture of aggression within APD that resulted in the Court Approved Settlement Agreement (CASA). Don Harris did absolutely nothing when it comes to the APD reforms and never challenged the APD command staff in any meaningful way demanding compliance with the Department of Justice (DOJ) consent decree reforms.

Each of the 12 times the Federal Monitor presented his critical reports of APD to the City Council, Harris was nowhere to be found and has been silent and has declined to demand accountability from Mayors Berry and Keller. Harris failed to hold the APD command staff responsible for dragging their feet on the reforms. Harris has not attended any of the federal court hearings on the consent decree. It’s doubtful Harris has even bothered to read even one of the 12 Federal Monitors reports given his reputation being lazy and lack of attention and involvement in the process.

POLICE UNION RESPONDS TO TARGET 7

To quote the Target 7 report:

“Target 7 contacted APOA president Shaun Willoughby, the union that represents police officers for comment. Willoughby worried about the time and money spent on one man’s company and told Target 7:

The court order governs what happens and someone, whether Ginger and his company or someone new, someone will continue to get paid until the Albuquerque Police Department lives up to the changes agreed to in the settlement with the department of justice.”

UNION PRESIDENT RELIABLE TARGET 7 “ON CAMERA” SOURCE

Willoughby’s comments should come as no surprise to anyone especially Target 7. Its common knowledge that certain Channel 7 reporters have an extreme bias in favor of police and the union with Willoughby being their “go to guy” to speak negatively about the Keller Administration and the federal court consent decree. Willoughby in the past has gone as far as to blame the increase in the City’s violent crime and murder rates on the Department of Justice reforms.

It was on January 28, 2021, KOAT TV asked APD Union President Shaun Willoughby to react to the number of homicides in January. Not at all surprising, Willoughby blamed the Department of Justice (DOJ) consent decree for the city’s violent crime and murder rates and told Channel 7:

“This should be no surprise to anybody in this community. We had a staggering number of homicides last year we had record-breaking number of homicides the year before. … Violent crime increases at an alarming rate in this community. We have for the last six years and I’ll be the first to tell you it’s not getting better and anybody that says it is not telling you the truth. … the department has become more reactive to crime, than proactive. … We’re focused on the DOJ consent decree instead of fighting crime.”

ACLU REPONDS TO TARGET 7

APD Forward includes 19 organizations who have affiliated with each other in an effort to reform APD and implement the DOJ consent reforms. Members of APD Forward include Albuquerque Health Care for the Homeless, American Civil Liberties, Bernalillo County Community Health Council, Common Cause New Mexico, Disability Rights New Mexico, Equality New Mexico, League of Women Voters of Central New, Mexico New Mexico Conference of Churches, New Mexico Criminal Defense Lawyers Association, Sierra Club Rio Grande Chapter, the Transgender Resource Center of New Mexico and the American Civil Liberties Union (ACLU). The ACLU is considered the main member to speak for the organization.

When target 7 asked Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, about Ginger’s hiring by the city he had this to say:

“He was by far and away the best applicant for this role that the city received.”

“All of the blame for the lack of progress land squarely with the city there’s no evidence none whatsoever to suggest that Doctor Ginger has moved the goalposts in any way. ”

Simonson was not asked about the role of the APD union and their delay and obstruction tactics. More than one of the 19 organizations that make up APD Forward have been critical of the union.

Simonson went on to tell Target 7 that it’s a worthy investment saying the price of the monitor is saving taxpayers money because the city will ultimately save money on settlement costs from people and families shot by police.

Simonson put it this way:

“We should invest millions of dollars in getting that done this department has you know a long history and many cycles of violence within the community and we still haven’t corrected it yet this is the opportunity to finally get the department that Albuquerque deserves.”

https://www.koat.com/article/doj-settlement-agreement-with-the-city-enters-7th-year-dollar20-million/35421909

FEDERAL COURT APPOINTED MONITOR HAS NO AUTHORITY OVER APD

The entire Target 7 Investigation report leads the impression that the Federal Court Appointed Monitor has a degree of management, control and authority over the APD. The Court Approved Settlement Agreement (CASA) is clear that the Federal Monitor’s authority is limited to preparing reports and does not assume the role and duties of APD.

Paragraphs 294 and 295 of the CASA are worth noting:

A. Independent Monitor

295. The Monitor shall only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor shall not, and is not intended to, replace or assume the role and duties of APD, including the Chief or any other City official. The Monitor shall be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.

The Federal Monitor’s lack of authority over APD has contributed substantially to the problem of systematic failure of the CASA, especially having no authority to write policy and no authority to remove and appoint personnel and issue appropriate orders and commands to sworn personnel.

COMMENTARY AND ANALYSIS

The Target 7 Report failed miserably in its investigation report to determine and report the truth as to the cause of the delay in implementing all the reforms. After 6 years under the consent decree, this is the first so called “investigative report” Target 7 has ever done on the consent decree and the reforms. It cannot be recalled if Channel 7 Reporter Nancy Laflin or Target 7 Investigative Report Producer T.J. Wilham has ever attended any of the day long court hearings on the CASA and it is unknown if they have even read any of the monitor’s 12 reports.

Its laughable when Target 7 reports:

“Producers and reporters have gone to the address for Ginger’s company listed on his website dedicated to the settlement agreement. … When someone answered a Target 7 producer was told “I don’t know what that is. … Ginger did call Target 7 the Next day. He didn’t say much but pointed producers to a line in the agreement with the city that prohibits him from speaking with reporters.”

The truth is that Target 7 did not have to interview Ginger. The Target 7 report reflected a level of laziness typical of local news reporting. The answer to Target 7 questions as to why APD has not made progress with all the reforms and the reason for the delay are contained in Court hearing transcripts and in the 10th and 12th Monitors reports. At a minimum, Target 7 should have quoted the transcripts or the monitor’s reports and there was no need of an on camera interview with Monitor James Ginger.

For that reason, past comments made by Ginger and his reports are worth repeating.

APD ON BRINK OF A CATASTROPHIC FAILURE

On Friday, October 6, 2020 Federal Monitor Ginger told the Federal District Court Judge James Browning overseeing the DOJ reform effort:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

12th FEDERAL MONITOR’S REPORT

On November 2, 2020, the Federal Court Appointed Monitor filed with the Federal Court his 12th Compliance Audit Report of APD. The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The 12th Federal Monitors’ report contains a summary that highlights major deficiencies that have set back compliance levels resulting in the delay of the reforms.

For at least the 4th time, the monitor reported that the “Counter Casa” effect was interfering with APD accomplishing the implementing the CASA reforms. According to the 12th report:

“[The federal monitor] identified strong under currents of Counter-CASA effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.”

EDITOR’S NOTE: It was on September 10, 2018, during a status telephone conference call with the US District Court Judge that Federal Monitor Dr. James Ginger first told the federal court that a group of “high-ranking APD officers” within APD were thwarting the reform efforts. The Federal Monitor revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants who are management but yet allowed to join the union.

In his 10th report Federal Monitor Ginger states:

“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete” … “Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example … Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met.”

To be perfectly clear, based on the monitor’s experience with these projects, [which] dates back to the 1990s, APD is on a path that reflects deliberate indifference to the requirements of the CASA. We highly recommend that the City take direct steps to put APD on an alternate trajectory regarding compliance efforts. … .

CONCLUSION

The Target 7 report boldly proclaimed it wanted to know why APD wasn’t making progress with all the reforms and the reason for the delay. Simply put, the Target 7 report was a miserable failure in it’s announced intended goals. The Target 7 report on the Federal Monitor was nothing more than a typical “hit job” in search of a scandal. Target 7 found no scandal it wanted to report on and no doubt to its chagrin. The real scandal is that blame for the delay in implementing the reforms rests on the shoulders of APD leadership and the APD police union. To lay blame on the Federal Monitor and the Federal Court is irresponsible news reporting at its worst.

Elected and government officials, readers and viewers cannot demand, instruct nor tell the press or any reporter what to write, how to write it, when to write it, what tone it should take, nor what sources are used. Those are all rights that are protected by this First Amendment to the United States Constitution. A free press is essential to all our other freedoms.

Notwithstanding, elected and government officials, readers and viewers must demand truth, accuracy and completeness in news reports. The Target 7 February 4, 2021 did a major disservice to its viewers and the federal court with inaccurate and incomplete reporting.

Channel 7 is now running another Target 7 teaser saying it will be reporting on Thursday, February 11, if the Department of Justice Reforms are responsible for the City’s spike in violent crime and the murder rates.

Channel 7 should change its slogan from “News You Can Count On” to “News You Can’t Trust”.

A link to a related blog article is here:

REPULSIVE: Omitting Their Own Conduct, APD Interim Chief Harold Medina And APD Union President Sean Willoughby Blame Violent Crime And Murder Rate Increases On DOJ Mandated Reforms

It has been reported that the Civil Rights Act will be voted upon by the full New Mexico House of representatives after it was voted out of the House Judiciary Committee on an 8 – 4 vote with a do pass recommendation.

https://www.abqjournal.com/2357524/notorious-child-abuse-case-cited-in-civil-rights-debate.html

HOUSE BILL 4

House Bill 4 was introduced for consideration in the 2021 New Mexico Legislature enacting a “New Mexico Civil Rights Act.” New Mexico House Speaker Brian Egolf and Representative Georgene Louis, D-Albuquerque are the sponsors of Bill 4.

As originally proposed, the New Mexico Civil Rights Act would allow plaintiffs to file a lawsuit in state court against a public body or government employee to recover damages for violations of civil rights under the New Mexico State Constitution. Government employees of all types could be sued: police, fire fighters, teachers, social workers and health care providers who work for government entities and hospitals to mention a few. Public bodies and agencies already can be sued in federal court for violating the United States Constitutional rights and plaintiffs can recover monetary damages if they’re successful. However, New Mexico does not have a similar state law allowing the victims of state constitutional violations to recover damages in state court.

The New Mexico Civil Rights Act would allow legal claims to be filed in State District Court over alleged infringements of free speech, freedom of religion and other constitutional rights. According a legislative analysis of the bill, the New Mexico Constitution may offer broader causes of action or cover rights that don’t exist under federal law. The practical effect under the current law is that whenever wrongful death case is filed involving a police officer shooting and civil rights violations, the case is removed to federal court where federal case law applies. In the state of New Mexico, the overwhelming number of police officer involved shooting cases result in settlements and no jury trials.

CREATING A NEW CAUSE OF ACTION

The proposed state Civil Rights Act will create a separate state cause of action and in turn a framework to recover damages for alleged constitutional infringements under state law. The proposed law would allow plaintiffs to seek only compensatory or actual damages, but not punitive damages. In other words, judgments secured in a state court cause of action would only be the actual damages and costs associated with the injuries, such as medical bills for injuries, losses income or wages and property damage.

The primary purpose of the new Civil Rights Act is to prohibit the “qualified immunity” doctrine in a state cause of action that does not exist yet but will be created under the new state civil rights act. The defense of “qualified immunity” would not be allowed as a defense that would cover virtually all government employees, not just law enforcement. Normally, affirmative defenses to a civil lawsuit are allowed. An affirmative defense is a fact or set of facts other than those alleged by a plaintiff if proven by the defendant that defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.

Qualified immunity is a type of legal immunity created that shields government officials from being held personally liable for constitutional violations. In 1982, the United State Supreme Court in the landmark case of Harlow v. Fitzgerald, 457 U.S. 800 (1982), held that federal government officials are entitled to qualified immunity. The Court reasoned that “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”

House Bill 4 has generated stiff opposition from government agencies. City, County law enforcement agencies and government employee unions objected to and were particularly critical of the provision that would eliminate “qualified immunity”.

On Monday, January 25, the New Mexico Civil Rights Act, House Bill 4, passed the State Government, Elections and Indian Affairs Committee on a 5-3 vote.

SUBSTITUTE BILL INTRODUCED AND VOTED OUT OF COMMITTEE

On Friday, February 5, a substitute Bill 4 was introduced that overhauls the original civil rights bill that would prohibit “qualified immunity” as a defense to legal claims filed against government agencies. The substitute bill caps damages at $2 million. The $2 Million cap is intended to eliminate concerns about potentially financial impacts on local governments.

In another major change to House Bill 4, legal claims brought under the proposed New Mexico Civil Rights Act could only be filed against a government agency, not an individual employee. The revised version also prohibits public employees from using the Civil Rights Act to bring claims against their public employer.

On February 8, Members of the House Judiciary Committee voted 8-4 to support a revamped bill that would allow New Mexicans to sue government agencies they believe have violated their civil rights.

https://nmpoliticalreport.com/2021/02/09/new-mexico-house-committee-advances-revamped-civil-rights-bill/

ARGUMENTS MADE IN SUPPORT OF SUBSTITUTE CIVIL RIGHTS ACT

House Speaker Brian Egolf, one of the 2 sponsors of the bill had this to say about all the changes in the substitute bill:

“We’re working to strike a balance between the needs of New Mexicans to have access to justice in a state court with the concerns that had been raised by counties and cities and state agencies. … This is a series of compromises that we’re making because we want people to feel that their voice is being heard in a legislative process and that we’re being responsive as concerns are raised. …”

There’s already lots of statutes that give public employees an ability to bring a claim against their public employer. … [Government employees can also file claims under federal law] We’re going to leave those in place and clarify that the Civil Rights Act is not meant to supplant those.”

Maureen Sanders, a prominent and respected civil rights attorney had this to say:

[The opposition from government agencies] is that this will cost the state and local governments money and may even end up in bankruptcy [for] cities and villages and towns. … There’s just been no evidence of that. … What we have here is a lot of ‘sky is falling’ speculation provided by the local government entities and forgetting the importance of this legislation to the people within their jurisdictions.”

Brenda Boatman, community engagement director for Americans for Prosperity New Mexico, a conservative-leaning organization, said New Mexico needs a civil rights bill. She said people and organizations from across the political spectrum agree the criminal justice system needs improvements and added:

“When someone acting in an official government capacity, such as a police officer, violates a citizen’s constitutional rights, certain laws and immunities protect them from liability, regardless of the damage they’ve caused to regular New Mexicans. … This undermines individual rights, allows wrongdoers to escape accountability and leaves victims … with no way to address the injustice in court.”

Boatman said the bill would help right the wrongs of people whose constitutional rights have been violated.

“Have you ever heard the phrase, ‘Ignorance of the law is no excuse’? A citizen cannot walk into court and use the defense, ‘I didn’t know it was illegal. Why then should government actors be able to essentially use this defense, simply because our court hasn’t ruled on almost the exact same set of circumstances? This bill would put an end to that, allowing New Mexicans that have had their constitutional rights violated to at least have their day in court.”

https://nmpoliticalreport.com/2021/02/06/overhauled-civil-rights-bill-would-cap-damages-at-2-million-in-new-mexico/

COUNTY AND MUNICIPALITY OPPOSITION

Representatives from the Association of Counties and the New Mexico Municipal League told the house committee the proposed Civil Rights Act would allow suits without a cap on damages and provide for the recovery of attorney fees. At least the substitute bill caps it at $2 Million, but that is twice the New Mexico Tort Claims Act. City and county representatives said they can already be held accountable in state court for law enforcement misconduct. Both the county and city associations said the Civil Rights Act is not needed in that plaintiffs can file under the state tort claims act for violations of the state constitution, though damages are capped at $1 million.

THE ASSOCIATION OF COUNTIES OPPOSITION

The state Association of Counties helps insure 29 of the 33 county governments in New Mexico. The Association estimates the cost of litigating and setting civil rights claims would jump a whopping 66%, upwards of $13 million a year.

Grace Philips, General Counsel for the New Mexico Association of Counties (NMAC), said New Mexico counties are already being warned by their insurance providers that they will lose their “law enforcement insurance” coverage if the bill is passed and signed into law. The insurance is an extra set of insurance called reinsurance and is essentially insurance for an insurer.

Philips told the house committee that the loss of extra insurance coverage for the counties of Bernalillo, Santa Fe and Doña Ana counties, would mean they would have just $2 million to respond to law enforcement and detention claims, down from the $10 million coverage the counties now have. According to Phillips:

“You can already sue law enforcement. .., All [the legislation] does is make those cases more expensive and more profitable for attorneys who would be allowed to collect their fees on top of whatever the lawyer got for their client. … It reduces monies available to compensate people who are harmed. … and when counties don’t have insurance coverage to pay claims, the money to pay claims comes directly from the county budget. … Legal judgments could also be assessed on property taxes.”

The link to news source for quotes is here:

https://www.abqjournal.com/2354365/taxpayer-impact-of-civil-rights-bill-sparks-debate.html

THE NEW MEXICO MUNICIPAL LEAGUE OPPOSITION

AJ Forte, executive director of the Municipal League and a former risk management director for the state, told the house committee the civil rights claims could be enormous. Forte noted New Mexico’s largest ever jury award was awarded in a wrongful death case involving the FedEx shipping company with a judgment totaling $165 million. According to Forte:

“If a jury decides that a constitutional violation is worth, say, $165 million, as they did in the FedEx case … we’ll no longer be talking about cost to insure; there just won’t be any money left. There is no liability fund in the state that has such a balance.”

AJ Forte also had this to say about the substitute bill:

“There’s no reform on this bill. … There’s nothing on the front end to stop violations from happening in the first place.”

The links to news source quotes are here:

https://nmpoliticalreport.com/2021/02/09/new-mexico-house-committee-advances-revamped-civil-rights-bill/

https://www.abqjournal.com/2354365/taxpayer-impact-of-civil-rights-bill-sparks-debate.html

https://www.petedinelli.com/2021/02/02/speaker-of-the-house-brian-egolf-ignores-appearance-of-impropriety-with-sponsorship-of-new-mexico-civil-rights-act-civil-rights-act-creating-solution-looking-for-a-problem/

COMMENTARY AND ANALYSIS

The comments from Maureen Sanders and Brenda Boatman are coming from two opposite ends of the political spectrum. Attorney Maureen Sanders is a highly respected trial attorney and a progressive and Brenda Boatman is from the respected conservative Americans for Prosperity New Mexico, but both having their eyes on “deep pockets” of the taxpayer. What they want to do is simply make it easier to collect large judgments and attorney fees from government and taxpayer without really holding the government employee responsible for unconstitutional conduct and damages.

The comments from attorney Maureen Sanders are worth repeating:

[The opposition from government agencies] is that this will cost the state and local governments money and may even end up in bankruptcy [for] cities and villages and towns. … There’s just been no evidence of that. … . … What we have here is a lot of ‘sky is falling’ speculation provided by the local government entities”

To repeat:

“… no evidence … that this will cost the state and local governments money and may even end up in bankruptcy … What we have here is a lot of ‘sky is falling’ speculation”.

Really? Really?? The truth is that there is more than enough evidence of excessive judgments against government entities for police misconduct and shootings that have cost millions over the years.

Albuquerque police have shot more than 50 people since 2010, at least 31 of them fatally. Over a period of 10 years, the city of Albuquerque paid out $64 Million in 19 cases for excessive use of force and violations of civil rights. It’s those cases that in part that resulted in the Department of Justice investigating and found in 2014 that APD had a “culture of aggression.” Lawsuits stemming from police shootings have cost taxpayers more than $25 million in recent years.

The comments of Brenda Boatman are also worth repeating:

“When someone acting in an official government capacity, such as a police officer, violates a citizen’s constitutional rights, certain laws and immunities protect them from liability, regardless of the damage they’ve caused to regular New Mexicans. … This undermines individual rights, allows wrongdoers to escape accountability and leaves victims … with no way to address the injustice in court.”

Boatman’s arguments are as equally bogus as that of Maureen Sanders. The truth is that “victims” do have a way to address injustice in both state court and federal court and they do so with tremendous success. Boatman, like Sanders, is more interested in abolishing a defense in order to make it easier to recover in state court.

COSTLY PAYOUTS

The City of Albuquerque, Bernalillo County and the State have paid out large judgments costing millions, especially for police use of deadly force. Just 4 cases have cost $21 Million in out of court settlements for law enforcement use of deadly force cases. Another case involving the death of a child and the State’s Children Youth and Families Department has cost the state at least $1million. Those cases reflect the current system does in fact work, those who get injured do get their day in court and they get compensated. Following is the listing of 5 such cases:

1. On January 27, 2014, it was reported that a $10.5 million dollar judgment that was appeal by the City of Albuquerque was settled by the city for $7.5 million for the police shooting and killing. In 2010 US Army Veteran Kenneth Ellis, ll was shot and killed by an Albuquerque police officer when he had a gun pressed against his temple. Ellis was a veteran of the Iraq War who was suffering from post-traumatic stress disorder (PTSD).

https://www.koat.com/article/report-city-agrees-to-settlement-in-ellis-case/5053797

2. On July 15, 2015, the city has agreed to pay $5 million to the family of James Boyd, a homeless camper who was shot and killed by Albuquerque police in the Sandia Foothills on March 16, 2014. Boyd was armed with a knife in each hand, a 15-hour standoff occurred and 2 SWAT Officers shot him dead after flash bangs were detonated and the K-9 Unit was dispatched. The shooting made national headlines with police lapel camera footage capturing the incident.

https://www.abqjournal.com/610827/albuquerque-reaches-settlement-in-lawsuit-over-james-boyds-death.html

3. The January 18, 2017, a $5 Million settlement was made with the family of Mary Hawkes, a 19-year-old woman who was shot and killed by police during a foot chase in 2014. The settlement resolves the lawsuit filed by her family against both the city and then APD officer Jeremy Dear who at the time did not have his body camera on.

https://www.abqjournal.com/1120552/hawkes-family-settles-lawsuit-fatal-apd-shooting.html

4. On March 7, 2020, it was reported that the Bernalillo County Sheriff’s Office agreed to pay the family of Elisha Lucero, 28, $4 Million to settle the case. Lucero was shot in front of her family’s south valley home after a family member called 911 in July of 2019. Lucero’s family said she struggled with mental illness, the sheriff says Lucero charged at deputies with a knife. The BCSO officers were not wearing body cameras.

https://www.kob.com/albuquerque-news/family-of-elisha-lucero-settles-case-with-bcso-for-4m-/5667056/

5. In 2013, 9-year-old Omaree Varela was kicked to death by his mother. Litigation was filed which accused two social workers and the state “Children, Youth and Families Department of violating Omaree’s rights by placing him in a dangerous home. A federal judge dismissed the lawsuit in 2016 citing qualified immunity for the government employees which hinged on weather the social workers knew or should have known that their conduct would violate the child’s clearly established rights. Notwithstanding the federal court dismissal, the case continued in State Court and the case was settled in a confidential settlement with the terms of the settlement not disclosed. It’s likely the case was settled for at least $1 million under the New Mexico Tort claims act.

https://www.abqjournal.com/2357524/notorious-child-abuse-case-cited-in-civil-rights-debate.html

Upwards of $90 million in settlement payouts is a lot of “money green” blue sky that is falling that in all likely hood would have gone a long, long ways to provide essential services or social services.

NO INDIVIDUAL ACCOUNTABLITY PROVISIONS

Absent from the originally proposed civil rights act and the substitute bill is any provision that would actually hold a government employee truly liable and accountable for damages they have caused another. All the act does is create a cause of action, prohibits qualified immunity and mandates government to pay. There is no personal liability nor other types of penalties to hold the individual employee accountable for wrongful conduct and violations of civil rights and constitutional rights.

Absent from the legislation is any preventative measures directed at the government employee or services such as training, expanded behavioral health services and decertification’s and terminations of the employee. All that the legislation provides for is to pay out claims with no provisions that would prevent violations from happening in the first place.

Then there is the matter as to what extent do you want to hold a government employee personally liable for violations of constitutional rights? Do you make that person individually, jointly or severally liable to pay damages awarded? Should government pensions be forfeited? There are options many would likely feel go too far and are just punishment and not restitution while others would say it is justified if a person is dead because of the negligent conduct of the government employee.

Other types of penalties could easily be included such as mandatory termination from government employment, suspension of professional licenses such as licenses to practice law, medical licenses, teacher licenses, law enforcement licenses and certifications and trade licenses all issued and regulated by the state under existing law. As it stands now under the proposed civil rights act, government will still bear the responsibility to defend and pay the judgments and settlements, and in turn its the taxpayer who is paying. If accountability is truly what the Civil Rights Act is intended for, and what plaintiff trial attorneys want, it sure does look like the real goal is to make recover a lot easily from a deeper pocket without having to prove a case in court before a judge and jury.

A SOLUTION LOOKING FOR A PROBLEM THAT DOES NOT EXIST

At the absolute center of the debate is whether the State Of New Mexico should go out of its way to create a whole new cause of action for violation of civil rights under state laws and state constitutional rights to ease the burden of proof to recover damages in a court of law free of any “qualified immunity” defense.

Another key provision is that the new act would allow the recovery of attorney’s fees and costs, which no doubt goes along way to explain the support of plaintiff’s lawyers.

Many argue that a New Mexico Civil Rights Act is needed to stop the “culture of aggression” or systemic racism and stop the excessive use of force or deadly force by law enforcement. When it comes to the Albuquerque Police Department (APD), the city is already getting a handle on the problem. For the past 6 years, APD has been under a federal court consent decree that mandates 271 reforms that APD and the city are still struggling to implement under the watchful eye of a federal judge and a federal court appointed monitor. Albuquerque has paid out upwards of $64 million dollars over a 10-year period for excessive use of force and deadly for cases and civil rights violations stemming from a “culture of aggression” found by the Department of Justice (DOJ).

Other groups of public employees that will likely be affected by the enactment of the legislation are teachers, firefighters , social workers and health care providers. It is easy to see how teachers could be accused of violating a student’s free speech and freedom of religion in science classes, history classes and sociology classes. Firefighters could also be easily accused of interference with rights of privacy or civil rights violations under any number of fact scenarios involving emergency procedures and administering medical care.

From a practical standpoint, it makes little or no sense to enact a Civil Rights Act that creates a new cause of action for violations of state constitutional rights by government employees, abolishing qualified immunity only to have a Tort Claims Act that mandates a defense and payment of judgments for damages. The New Mexico Tort claims act does indeed strike an appropriate balance for the recovery of damages.

It appears with the enactment of the substitute Civil Rights Act, damage to a plaintiff, the liability of government and the taxpayer wind up in the exact same place as to who pays for the damages. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court making the job of plaintiff’s attorney a lot easier, allowing attorney fees and costs and to avoid having cases dismissed over a court doctrine that is well settled law.

The enactment of the Civil Rights Act is a solution looking for a problem to solve and looking for even deeper pockets to find the money to pay the judgments.

Links to 3 related blog articles are here:

Speaker Of The House Brian Egolf Ignores Appearance Of Impropriety With Sponsorship Of New Mexico Civil Rights Act; Civil Rights Act Creating Solution Looking For A Problem

Proposed State Civil Right Act Is Solution Looking For A Problem; Will Be Costly

Commission Recommends “Civil Rights Act” On 5 – 4 Vote; Abolishing “Qualified Immunity” Against All Government Officials And Law Enforcement Personnel Proposed; NM Legislature Will Make Final Decision

On December 18, 2020, President Joe Biden announced the appointment of Congresswoman Debra Haaland as United State Secretary of Interior and her appointment must be confirmed by the U.S. Senate. It is speculated that Haaland will be confirmed in late March by the Senate at which time she will resign her congressional seat.

The timing of Haaland’s resignation from congress will have a major impact on when a special election is held to replace her. Under New Mexico law, a special election must be held between 77 to 91 days after the seat is vacated. There will be no primary elections. Instead, New Mexico’s 3 recognized political parties central committees (Democrat, Republican and Libertarian Party) will meet and nominate their candidates at least 56 days before the special election.

In the Democratic Party, only members of the State Central Committee residing in Congressional District 1 will vote to fill the vacancy. There are about 170 members from the Albuquerque district on the Democrat Central Committee. Currently, there are 15 candidates running to replace Debera Haaland. A listing of those candidates can be found at this blog article entitled “The Race To Replace Debra Haaland In 1st Congressional District; 15 Announced Candidates Identified”:

https://www.petedinelli.com/2021/02/05/the-race-to-replace-debra-haaland-in-1st-congressional-district-14-announced-candidates-identified/

Randi McGinn is the one candidate running for congress that sticks out above all the other candidates because of her success over many years in the private practice of law and her success in advocacy on issues facing the congressional district and Democratic core values she has fought for for decades.

AN INTRODUCTION OF RANDI MC GINN

I have known attorney Randi McGinn since 1984. Our paths have crossed at various times over the past 37 years. We both practiced law as Assistant District Attorneys in the Bernalillo County District Attorney’s Office working for then Bernalillo County District Attorney Steve Schiff who later went on to be elected to Congress himself and served CD 1 for a number of years. We both were assigned to the Violent Crime Division handling the prosecutions of homicides, rape , armed robbers, and aggravated assaults and even child abuse cases. Those were the years when young attorneys would go to work for the District Attorney’s office for two major reason: the courtroom trial experience and a dedication to public service.

Randi McGinn excelled as a trial attorney handling some of the most difficult and high-profile cases at the time. She was fearless in her advocacy for victims and making sure justice was served. When McGinn left the District Attorney’s office, she started her own law firm. Over the years, she has become one of the most highly respected and successful trial attorneys in the state of New Mexico, all the while advocating for Democratic core values and being involved community issues and organizations. She knows the issues that face Congressional District 1.

At the request of this blogger, Randi McGinn submitted the following column as to why she is running for congress.

RANDI MCGINN GUEST COLUMN

“Why give up the successful law firm you’ve built and the people you love working with to run for Congress?

After coming out the other side of mourning, I decided to take the skills I’ve honed over 40 years in the courtroom to Washington, D.C. to do what I do best — hold people accountable for the past corruption of our country and to use the opportunity in this crisis to transform government so it works to benefit its people.

ACCOUNTABILITY

If insurrection is not punished, then it becomes a dress rehearsal for the next time.

Just as I did when I volunteered to hold APD officers accountable for the shooting death of homeless camper James Boyd, in Congress, I would love to be a part of the team that investigates, exposes and holds accountable those who corrupted our democracy.

THE OPPORTUNITY IN CRISIS TO TRANSFORM GOVERNMENT

Just as my husband’s death caused me to re-evaluate the course of my life, the pandemic presents a unique opportunity for us to re-evaluate the course of our country. Rather than re-build government back, we have a chance to transform it based on the lessons learned from this crisis.

Just as I practiced transformative law – asking not just for money, but for safety changes to make sure tragedies didn’t happen again — in Congress I will work for permanent, transformative change.”

You can review Randi Mc Ginn’s Her Youtube announcement is here:

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

DINELLI COMMENTARTY AND ANALYSIS

New Mexico, and in turn, the 1st Congressional District, is facing any number of problems that are bringing it to its knees. Those problems include the corona virus pandemic, business closures, high unemployment rates, exceptionally high violent crime and murders rates, poverty, children at risk, a lack luster education system and very little economic development.

On the federal level, issues the country is facing include a threat to our democracy and the election process, COVID relief aide to the state, systemic racism, preserving a woman’s right to choose, responsible gun control, equal rights, civil rights and LGBTQ Rights, immigration reform, health care for all, increasing the minimum wage and paid sick leave, legalization of marijuana, campaign finance reform addressing “citizen united”, fair taxation for all with emphasis on the middle class and forcing corporations and the wealthy to pay their fair share of taxes, just to mention a few.

The Congressional District 1 can go no longer afford to elect people to congress based upon promises and nothing but eternal hope for better times and for a better future and with no results. What is needed is a congressional representative that actually knows what they are doing, and are informed and will make the hard decisions without their eye on the next election or higher office nor someone who just wants to placate their base and tell them what they want to hear. A person who is willing to serve in the United State House for a number of years with an emphasis on constituent services and not use the office as nothing more than a stepping stone for higher office down the road.

I am confident and can say without reservations that Randi McGinn will concentrate on what’s important to the 1st Congressional District and its people and that she truly committed to public service. The Democrat Party is fortunate to have someone of her caliber running for office. The Democratic State Central Committee should have absolutely no reservations about making Randi our nominee for congress.

Learn more about Randi McGinn and what she stands for by going her campaign web page by clicking on the below link:

https://www.mcginnfornm.com/

Governor Lujan Grisham has called for up to $475 million to be spent on single time pandemic relief measures during this year’s 60-day legislative session that started on January 19. The Governor did not tell lawmakers what specific programs should be funded leaving that up to them.

Legislation is progressing through committee hearings in the 2021 Legislative session that will have a direct impact on New Mexico’s service industry and employees. Two are Pandemic Relief funding and one is paid sick leave.

PANDEMIC RELIEF FUNDING

On Thursday, February 4, the State Senate Finance committee approved two separate pandemic relief bills on a unanimous vote with no dissent. Senate Bill One (SB-1) bill calls for $600 rebates for New Mexico workers who make less than $15 per hour. It also calls for a 4-month tax suspension for restaurants, breweries, dining establishments, including food trucks.

REBATES TO ESSENTIAL WORKERS

In the June and November Special Legislative session held in 2020,the New Mexico lawmakers passed two separate pandemic relief packages. The November relief package was objected to by many legislators because it did not include hazard-pay bonuses to “essential” workers making less than $15 an hour. These are workers who have been at the front lines of the pandemic working at grocery stores, hospitals and other businesses.

According to Senate Majority Leader Peter Wirth, D-Santa Fe, such workers will benefit from the$600 rebates in that it targets New Mexicans who qualified for the state’s Working Families Tax Credit in 2020. Wirth told the Senate Finance Committee:

“These are the essential workers that have been holding our economy together and deserve our thanks.”

RESTAURANT TAX RELIEF

Under the Senate Bill approved by the Senate Finance committee, a “tax holiday” for restaurant and brewery sales was approved to in effect from March through June. According to the legislation, sales made during the 4-month time period would allow to be deducted from gross receipts tax and the state would offset any revenue loss incurred by New Mexico cities and counties as a result.

Sen. Crystal Diamond, R-Elephant Butt, told the Senate Committee that while tax relief could help keep some struggling restaurants afloat, allowing restaurants and bars to reopen with relaxed capacity limits would have a much bigger impact in keeping such establishments from permanently shuttering. At this point, the tax relief is already too late for many restaurants that have already closed.

WAIVER OF LIQUOR LICENSING FEES

The Senate Finance committee endorsed a separate bill that directed the New Mexico Regulation and Licensing, Alcohol and Gaming Division to temporarily waive the fees for liquor licenses. All bars in New Mexico had to pay liquor license fees last year, despite being closed for most of the year due to public health orders issued by Governor Lujan Grisham.

The pandemic and the Governor’s mandatory closures and limited occupancy restrictions for indoor and outdoor dining to slow the spread of the virus has had a dramatic impact. Some supporters are saying that upwards of 30% of businesses closed will never reopen again and have gone out of business.

The state Taxation and Revenue Department said taxable gross receipts from New Mexico’s hospitality and food industries are down 21.8% or by more than $445 million over the 2019 year’s levels through the first five months of the current budget year.

WHERE THE FUNDING WILL COME FROM

The relief package is an estimated $185 million for the rebates and restaurant tax breaks alone. The financing will come from the state’s cash reserves. The states cash reserves are upwards of $2.5 billion, which is 35% of the state’s overall spending.

Senate Bill 1 will be scheduled for debate and a final vote by the Senate during the week of February 8. The goal is to get the recovery package to the Governor by the end of the month to be signed into law. The bills will take effect immediately upon being signed if they pass both legislative chambers with at least a two-thirds majority vote.

https://www.abqjournal.com/2356345/pandemic-recovery-bills-moving-quickly-at-roundhouse.html

MANDATORY PAID SICK LEAVE LEGISLATION

House Bill 20 is legislation that would require New Mexico employers to offer paid sick leave to their workforce. On Thursday February 4, the bill passed the House Labor, Veterans and Military Affairs Committee on 5 to 3 vote. Democrats voted YES in favor and Republicans voting NO Before the vote, the sick leave bill was amended to incorporate ideas from a competing bill.

Under House Bill 20, employees would accrue at least 1 hour of paid leave for every 30 hours worked. Employees could use up to 64 hours of earned leave in a 12 month period, unless the employer offers a higher limit. The sick leave accrual would apply regardless of the size of the business.

The sick leave proposal includes a provision for supplemental leave during a public health emergency, expanding what’s otherwise called for in the law. Under the legislation, employees could use sick leave accrued for medical care, caring for a family member or for absences related to domestic abuse, sexual assault or stalking.
Employers who violate the act would be liable for three times the wages they should have paid the employee, or $1,000, whichever is greater.

Sponsors of the bill are Democratic Representatives . Christine Chandler of Los Alamos and Angelica Rubio of Las Cruces. Both representatives told the House committee the sick leave proposal will help protect employers and employees alike, by limiting the chances for illness to spread within a workplace. Rubio for his part told the committee:

“This is the one thing that workers need right now, particularly because of what they’re exposed to on the front lines.”

OLÉ New Mexico has been a major advocate of paid sick leave the last 4 years in Albuquerque and Bernalillo County, advocating both the city and county governments to enact such legislation and placing the measures on the ballot where it has failed. Eric Shimamoto, a member of OLÉ New Mexico told the house committee:

“If this pandemic has taught us anything, it’s that staying home when you’re sick is taking care of everyone.”

OPPOSITION TO SICK LEAVE ORDIANCE

The paid sick leave legislation drew aggressive opposition from business owners and business groups. They argued forcefully that the amended bill did not address concerns about the cost and paperwork burden on small businesses. Terri Cole, president and CEO of the Greater Albuquerque Chamber of Commerce had this to say in an interview with the Albuquerque Journal after the house committee hearing:

“We provided the committee with several reasonable ways to limit the financial impact this onerous mandatory leave bill will otherwise have on small businesses and their workers. While this one committee chose to ignore the input of the business community, we can’t imagine the governor, House leaders, and Senate leaders share the belief that small businesses shouldn’t be accommodated and included in the conversation.”

The link to the Albuquerque Journal article is here:

https://www.abqjournal.com/2356375/sick-leave-proposal-takes-shape-in-house.html

The paid sick leave Bill 20 has been referred to the House Judiciary Committee, for yet another committee hearing where it could pass, voted down or be tabled. If the bill passes the House Judiciary Committee is will then be forwarded to the full House Chamber for consideration and if it passes there, it will be forwarded to the State Senate for further committee hearings.

COMMENTARY AND ANALYSIS

The pandemic relief bills can not be enacted soon enough and signed by the Governor. The state’s reserve fund of $2.5 billion is being used for what is it intended to be used for: economic and financial crises. The relief was needed yesterday.

As for the sick leave legislation, its goals and objective are worthy of support, but the timing of the enactment could not come at a worse time. Mandatory pay of sick leave is a hard sell given the fact unemployment applications are at historical highs in New Mexico and so many businesses in the service industry have closed down, and probably permanently. Forcing mandatory payment of sick leave is difficult to justify during a pandemic and with so many business closures and even the 25% customer occupancy rules in place.