There is an old adage that “ignorance of the law is no defense in the commission of a crime.”

Ignorance of the law is also no excuse when it comes to attorneys, prosecutors and Governors.

Republican Governor Susana Martinez is seeking legislation during the upcoming 2018 legislative session that would grant legal immunity to New Mexico law enforcement officers for actions in the line of duty.

The Governor’s proposal would make law enforcement officers immune from lawsuits related to their use of force, “so long as they are acting reasonably while discharging their duties”.

http://www.koat.com/article/gov-martinez-proposal-would-make-officers-immune-from-lawsuits/15057005

Governor Martinez is a former Dona Anna District Attorney and she argues the legislation would provide a shield to law enforcement officers in a state that has one of the nation’s highest violent crime rates.

“I don’t believe that police officers should be under this constant threat of lawsuits that will often cause them to pause. … If they’re following their training, there should be something that protects them” according to the Governor.

(January 10, 2017 Albuquerque Journal, page A-1, “Gov. wants to grant immunity to New Mexico law enforcement; Legislation would shield officers from liability for actions in the line of duty)

UNINFORMED, MISGUIDED OR IGNORANT

As a New Mexico licensed attorney and a former District Attorney, Governor Martinez should know better.

The Governor should know the law before she continues her efforts to increase immunity for law enforcement personnel.

The Governor’s proposal is uninformed, or at the very least misguided and at worst ignorant, and her proposal is contrary to well established statutory law as well as New Mexico case law.

Whenever a police officer uses deadly force, it must be justified under statutory law as well as under standard operating procedures and training, with no room for exceptions.

There is no such thing as a “friendly fire” killing or shooting in law enforcement as there is in military combat.

If legal immunity is given as the Governor proposes, an innocent bystander who is hurt, seriously injured or killed would have no legal recourse if the police officer’s actions are in the line of duty and in accordance with the officers training.

Just one example where someone would have no recourse under the Governor’s proposal would be an innocent bystander who is seriously injured or killed by a police officer who is returning fire and misses his intended target.

Whenever there is a use of excessive force or deadly force by a cop, the use of force must be investigated and determined if it was justified.

Just because a police officer is acting in his capacity as a law enforcement officer when he discharges his firearm and injures or kills someone does not completely negate criminal or civil liability of the shooter nor of the shooter’s employer for negligent training and supervision.

CITY HAS PAID MILLIONS FOR POLICE MISCONDUCT CASES

No one is above the law, no one is given a license to break the law and violate constitutional rights, including law enforcement.

There have been many recent instances in Albuquerque where people have been killed where police officers were “following their training” to use the Governor’s words.

Former APD Police officer Keith Sandy and APD officer Dominique Perez were charged and tried for the murder of homeless camper James Boyd.

The Sandy and Perez defense attorneys argued and defended that they were following their training as law enforcement officers when they shot and killed Boyd.

Ultimately, the murder charges against Sandy and Perez were dismissed after a jury deadlocked on a conviction.

The City of Albuquerque paid the James Boyd family $5,000,000 for the wrongful death civil action.

Another case example is where former undercover narcotics APD Detective Jacob Grant was shot seven times point blank in a parked car by his APD Lieutenant James Brachle during a botched drug deal.

Grant was extremely lucky to survive the shooting and underwent extensive surgery for his wounds, was hospitalized for months and eventually had to retire from APD because of his permanent physical disabilities related to his injuries from the shooting by one of his own supervisors.

Ultimately, it was the citizens of Albuquerque that were held financially responsible for the tragic shooting of Jacob Grant that was at the very least negligent.

Former APD Officer Jacob Grant was paid $6,500,000 million dollars plus all his medical expenses being paid to settle the civil claim.

From 2010 to 2016 the City paid out $63.3 million to settle law enforcement civil rights violation cases, deadly force cases and excessive use of force cases by APD officers.

Since 2010, APD officers have shot over 41 people in police misconduct cases and excessive use of force cases.

In April, 2014, the United States Department of Justice found a culture of aggression within APD that resulted in a Federal Court Approved Settlement Agreement and the appointment of Federal Monitor to oversee and audit the implementation of close to 300 agreed to mandated reforms.

The Department of Justice (DOJ) consent decree mandates that APD excessive use of force and deadly force cases must be investigated.

NEW MEXICO TORT CLAIMS ACT PROVISIONS

Under the New Mexico Tort claims act, there already is immunity given law enforcement personnel.

Further, under the New Mexico Tort claims act, a government agency employing the law enforcement officer sued civilly has the legal obligation to defend the officer as well as pay for any damages awarded for the officers negligent or unjustified conduct.

Following are the specific provisions of the New Mexico Tort claims act that the Governor needs to read and understand:

“41-4-4. Granting immunity from tort liability; authorizing exceptions.

A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by [other provisions of statutory law or other provisions of the Tort Claims] Act] … Waiver of this immunity shall be limited to and governed by the provisions of [applicable sections of the Tort claims act. …]

B. Unless an insurance carrier provides a defense, a governmental entity shall provide a defense, including costs and attorney fees, for any public employee when liability is sought for:

(1) any tort alleged to have been committed by the public employee while acting within the scope of his duty; or

(2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico when alleged to have been committed by the public employee while acting within the scope of his duty.

C. A governmental entity shall pay any award for punitive or exemplary damages awarded against a public employee under the substantive law of a jurisdiction other than New Mexico, including other states, territories and possessions and the United States of America, if the public employee was acting within the scope of his duty.

D. A governmental entity shall pay any settlement or any final judgment entered against a public employee for:

(1) any tort that was committed by the public employee while acting within the scope of his duty; or

(2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico that occurred while the public employee was acting within the scope of his duty.

E. A governmental entity shall have the right to recover from a public employee the amount expended by the public entity to provide a defense and pay a settlement agreed to by the public employee or to pay a final judgment if it is shown that, while acting within the scope of his duty, the public employee acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage resulting in the settlement or final judgment. … .”

Even though the City of Albuquerque has paid out $63.3 million to settle law enforcement civil rights violation cases, deadly force cases and excessive use of force cases from 2010 to 2016, there has been absolutely no effort by the City to recover the amount of settlements from the law enforcement personnel where the cases were defended, settled and paid on their behalf presumably because there was no fraudulent actions or intentional malice.

The New Mexico Tort Claims Act does not provide for immunity when it comes to personal injury as follows:

41-4-12. Liability; law enforcement officers.

The immunity granted … to [law enforcement under the tort Claims Act] does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.

CONCLUSION

If the Governor does not know better nor the law, her law license needs to be suspended and she needs to return to law school for a refresher course in constitutional law, constitutional law enforcement practices and civil rights before she returns to the practice of law.

The New Mexico legislature needs to reject the Governor’s proposal to increased immunity for law enforcement during the upcoming 2018 session.

“The problems are much worse than I think anyone believed. … This project is a bit of a lemon”, so said Mayor Tim Keller about the ART Bus project during a 45 minute city hall news conference to discuss the ART Bus project.

Mayor Keller expressed concern that the problems associated with the ART Bus project are so extensive that it will not be fully operational and up and running for at least a full year.

http://www.kob.com/albuquerque-news/albuquerque-rapid-transit-problems-mayor-tim-keller/4737381/?cat=500

Mayor Keller’s remark “This project is a bit of a lemon” will go down as one of the biggest understatements in the city’s history summarizing a construction boondoggle costing at least $130,000,000 and counting with the City still hoping for $50,000,000 from the Federal Transportation Administration.

COUNTING THE LEMONS

Following are the lemons that have been picked off the ART Bus Project lemon tree by the Keller Administration:

1. Out of the 20 buses that were supposed to be delivered on Oct. 3, 2017, the City has only received nine of the buses.

2. Out of the nine buses received, the city has found issues associated with those buses, everything from serious mechanical failures to some inconsistencies in how the buses are constructed.

3. The problems with the buses delivered are so extensive, the city ended up renting portable generators to power the buses in order to use them for the “River of Lights” holiday exhibition. The practice of using the generators had to be stopped by the City because it could compromise the busses warranty.

4. Some of the buses cannot be charged because the charging system do
not work.

5. Axles on the new buses delivered are leaking oil.

6. The buses have not gone through the certification process required in order for the city to be reimbursed for the buses by the federal government. One of the ART buses put through the certification process did not pass the inspection.

7. A third-party certification officer would not certify the electric battery chargers that have been installed for the reason that the chargers themselves are not operable because what was used were equipment parts manufactured in China that used different standards for how the equipment was built.

8. Fully charged batteries on the buses are supposed to last for 275 miles. Testing the city has done indicates that the charge is only good for 200 miles and the city will need additional buses for ART unless the problem is resolved.

9. Restraint belts that are used to keep wheelchairs locked in place while they’re in transit are in different locations in almost all the buses delivered.

10. The battery cages that house the bus batteries are starting to crack and separate.

11. There are problems with inconsistent height levels on some of the bus stop platforms creating problems for wheelchair accesses ability which is mandated on Federal funded transportation projects such as ART.

12. The Atrisco bus stop platform is at an angle which creates problems of accessibility for people in wheelchairs.

13. Major concerns about two of the bus stations have been raised because of the distance between the intersection and the actual platforms.

14. The Washington and Central platform is so close to the intersection that a bus coming from the east side going west can’t make the approach without taking up the entire intersection.

15. The mirrors on the ART buses are slamming into the pillars that hold up the fabric awnings at the bus stations constructed in the middle of Central and the stations will have to be altered so the mirrors are protected from damage.

16. The ART bus station at Central and Washington is too short and in order to get the 60-foot-long articulated buses into the station, bus drivers must make an “S” maneuver, which swerves the buses into regular traffic lanes increasing the risks of traffic accidents.

17. The station at Atrisco and Central is too long resulting in the ART bus going into the station tilted at a three-to-four degree angle resulting in the bus floor being a few inches higher than the station platform increasing the risk of injury to passengers boarding and exiting the buses.

18. There are gaps of at least three inches at some stations between the platform edge and the bus floor resulting in unsafe boarding and unloading conditions for people with disabilities.

COUNTING THE LIES

The entire ART Bus project was built on lies to the public by Mayor Richard Berry, his administration and the Albuquerque City Council.

Following are the lies followed by the truth:

1st lie: The Federal Transportation Administration (FTA) grant application for the project that said it will not be a controversial project and it has wide public support; TRUTH: Strong opposition occurred at five (5) public hearings with heated angry citizens.

2nd lie: There is no need for an environmental impact study; TRUTH: Businesses and citizens went to federal court and argued that such studies were indeed needed and required but the court said the requirement was waived by the FTA.

3rd lie: ART will not put people out of business nor affect businesses; TRUTH: Over 250 business say otherwise and many have lost as much as 25% to 50% of their business with others closing.

4th lie: ART will not reduce off street parking; TRUTH: There will be as many as 350 fewer parking spaces up central.

5th lie: ART will not ruin historic Route 66; TRUTH: It already has ruined historic Route 66 with the canopy bus stop design.

6th lie: The canopy bus stop design conforms with historical areas of central; TRUTH: The City’s Landmarks Commission asked for a new design.

7th lie: ART will not impact traffic; TRUTH: The city admitted in a public forum the project has a 19-year shelf life and that sooner rather than later the bus stops in the middle of central will have to be removed and traffic lanes will have to be rededicated to accommodate projected increases in traffic along central.

8th lie: ART will not impact emergency services; TRUTH: There is only one lane of traffic in each direction with no left turn lanes that will impair emergency services such as ambulance and police emergency calls.

9th lie: ART will cost only $129 million dollars; TRUTH: At least $7 million in hidden sewer line replacement and relocation costs were incurred and the project has now estimated to cost $135 million with overruns.

10th lie: There will be loans or grants to help businesses starting March 1, 2017; TRUTH: After much delay, the loan program was finally implemented on April 21, 2017 with many businesses unable to qualify and businesses already closed that needed the money.

11th lie: Construction will not start until after December 2016; TRUTH: The city started to tear up the streets and relocate water lines in September, 2016.

12th lie: Sidewalks will be widened for pedestrian traffic; TRUTH: Simply not true per the March 13, 2017 Albuquerque Journal article, page A-1 “ART ATTACK; Transit project failing to deliver on promises, business owner’s say”).

13th lie: The buses along Central are always full; TRUTH: Most people and businesses along Central reported the buses are empty most of the time and bus usage is actually declining.

14th lie: The ART bus project will be used by millennials; TRUTH: ART only affects a 9 mile stretch of Central and millennials use their own vehicles to go to work all over the city and not just up and down Central.

15th lie: This was Mayor Berry’s project and there is nothing the city council could do to stop the project; TRUTH: The City Council could have voted not to fund the project and actually funded the construction of the ART Bus project with at least $13 million in revenue bonds.

16th lie: There is no need to put the project to a public vote; TRUTH: Albuquerque historically has always put major capital improvement projects such as ART to a public vote.

17th lie: Congress will approve the $69 million-dollar grant; TRUTH: Congressional committees have cut $20 million dollars from the grant with no guarantee that it will be made up in next year’s budget resulting in Albuquerque having to identify additional funding sources to make up for the shortfall.

18th lie: The $129 million-dollar project will have long term economic development benefits and will create jobs; TRUTH: The project is nothing more than a single construction project that only benefited the construction industry for a short term of a year.

19th lie: The project has already generated millions in economic development; TRUTH: The Berry Administration is taking credit for millions of dollars of construction projects that were permitted and planned long before the ART Bus project saying the new construction is because of ART.

20th greatest lie: Mayor Berry proclaimed the project is a “world class” transportation project; TRUTH: ART is a cheesy nine-mile, $129 million bus route that is now costing $135 million. A “world class transportation project” costs billions of dollars like Denver’s and Phoenix’s light rail systems.

CONCLUSION

Mayor Keller needs to ask if they can paint bright lemon yellow the remaining buses that still need to be delivered.

The ART Bus project is not as much as a lemon as it is a dung pile left for Mayor Keller to clean up.

There are many more dung piles Mayor Keller will be stepping into including the Albuquerque Police Department, the $40 million projected budget shortfall and the Bio Park projects just to mention a few.

“The problems are much worse than I think anyone believed. … This project is a bit of a lemon”, so said Mayor Tim Keller about the ART Bus project during an extensive news conference to discuss the ART Bus project.

Keller’s comment will without a doubt go down as one of the biggest understatements in the city’s history summarizing a construction boondoggle costing at least $130,000,000.

Keller really needs to ask if they can paint bright lemon yellow the remaining buses that still need to be delivered.

(See January 9, 2017 Albuquerque Journal on line article “Mayor outlines major problems with ART, including inability to charge buses)

Following is the complete Albuquerque Journal news story and link:

“The problems with the Albuquerque Rapid Transit project are so grave that Mayor Tim Keller and his leadership team won’t even venture a guess on when the controversial project will be operational, although one official acknowledges that there’s little chance that it could be up and running within three months.

City officials outlined serious problems with the electric buses that have been delivered — including the fact that the city is currently not able to charge those buses. There are also design and construction flaws along the ART route, one so serious city officials are exploring the possibility of reconfiguring an intersection.

“Out of the 20 buses that were supposed to be delivered on Oct. 3, 2017, we’ve only received nine buses,” Chief Operating Officer Lawrence Rael told the Journal. “Out of the nine buses that we’ve received, we have found issues associated with those buses, everything from mechanical failures to some inconsistencies in how the buses are put together.”

The problems are such that the city, under Mayor Richard Berry’s administration ended up renting portable generators to power the buses in order to use them for the River of Lights, Rael said.

He said the Keller administration stopped that practice after being informed that using the generators could compromise the equipment’s warranty.

Among the biggest problems:
• Some of the buses can’t be charged because the charging system doesn’t work.
• Axles on the buses are leaking oil.
• The buses have not gone through the certification process required in order for the city to be reimbursed for the buses by the federal government. Rael said one of the ART buses put through the certification process did not pass.
• A third-party certification officer wouldn’t certify the chargers that have been installed. “The chargers themselves are not operable because they’ve used what looks like Chinese equipment and probably a different standard for how they built these boxes,” Rael said.
• Fully charged batteries on the buses are supposed to last for 275 miles, but the testing the city has done so far indicates that the charge is only good for 200 miles, which means that the city will need additional buses for ART unless that problem is resolved.
• Restraint belts that are used to keep wheelchairs locked in place while they’re in transit are in different locations in almost all the buses.
• The battery cages that house the bus batteries are already starting to crack and separate.
• There are also problems with inconsistent heights on some of the platforms, which creates problems for wheelchair access.
• The Atrisco platform, meanwhile, is at an angle, which, again is creating problems for people in wheelchairs.
• And the Keller administration is concerned about two stations because of the distance between the intersection and the actual platforms. At the Washington and Central platform, for example, the platform is so close to the intersection that a bus coming from the east side going west can’t make the approach without taking up the entire intersection, Rael said. He said the city is considering reconfiguring that entire intersection.

Rael said the city hasn’t signed off on any of the equipment or the construction. He said the problems with the buses appear to be a failure of the bus manufacturer, Build Your Dreams, to meet the terms of the RFP or the contract.

ART has been billed as a project that will transform Central Avenue into a rapid transit corridor with a nine-mile stretch of bus-only lanes and bus stations. The project — and associated utility and road work — comes with a $135 million price tag.

The city has been banking on $75 million from the Federal Transit Administration’s Capital Investment Program for the project, but that funding agreement has not yet been signed.”

https://www.abqjournal.com/1116887/mayor-outlines-major-problems-with-art-including-inability-to-charge-buses.html

Governor Susana Martinez will once again request the New Mexico Legislature to reinstate the death penalty during the upcoming 2018 thirty-day legislative session.

Martinez will also again seek to toughen criminal sentences for a host of offenses without addressing the root causes of crime.

The Governor’s proposals include a bill to toughen penalties for people who commit crimes while on probation or parole and restoring the death penalty for people convicted of murdering children and law enforcement.

A three-strikes proposal would require life sentences for repeat offenders convicted of a third violent felony.

http://www.koat.com/article/gov-martinez-unveils-tough-on-crime-proposals/14829131

Last year in August, 2017, Albuquerque Republican State Representative Monica Youngblood announced she would again be sponsoring legislation to reinstate the death penalty for the killing of a law enforcement officer and the murder of children.

(See August 5, 2017 Albuquerque Journal, page C2, “NM Conservatives push for death penalty law; Bill would bring back capital punishment for killers of cops, children”.)

It is the killings of children, attacks on law enforcement officers and rising crime in Albuquerque and the state that have Republican Governor Martinez and conservative state lawmakers calling for New Mexico to reinstate the death penalty saying it is the solution to stopping heinous crimes and repeat offenders.

New Mexico State Representative Monica Youngblood stated “I think [the death penalty] would be a deterrent. I mean, look what’s going on in Albuquerque. … This would be a narrow reinstatement focusing on those who kill law enforcement and children.”

Democrat State Representative Gail Chasey said the focus should be on stopping crime before it happens in the first place.

“By providing law enforcement with what they need address crime in our city, and addressing root causes, we would not only honor those lost in senseless tragedies but would also increase public safety” said Representative Chasey.

DEATH PENALTY DOES NOT DETER CRIME

Governor Martinez and the Albuquerque Journal have repeatedly supported the death penalty be reinstated.

Proposing to reinstate the death penalty is political pandering and grandstanding at its worse done to “gin-up” the hostility of victims of crime and the general public who are seeking and demanding justice.

We are supposed to be a civilized society.

The death penalty is nothing more than an “eye for an eye” approach to criminal justice and it does not deter crime.

The trend nationally is that states are abolishing the death penalty.

Many people on death row being released for crimes they did not commit because of scientific evidence.

There is no mention of how the legislature will pay for the millions it is going to cost reinstating the death penalty and the mandatory appeal process that take years.

There is no mention of any increase the budgets of the Judiciary, District Attorney offices, Public Defenders Office and the prison system to get the job done.

The death penalty is simply not good enough to render justice upon violent criminals who murder any police officer in the line of duty.

There are times the death penalty is simply not good enough to render justice upon violent, immoral people who commit crimes against the most innocent, defenseless and helpless people, especially children, in our so called civilized society.

I believe this to be true about the death penalty for those people who commit heinous crimes against their own defenseless children of tender years.

The drugging, raping, murder, dismemberment and the burning of the body of 9-year-old Victoria Martens by her mother, her boyfriend and two others is one such crime.

Even life imprisonment without the possibility of parole is not enough for some violent crimes such as murder of a child, but justice is what needs to be sought by a civilized society, not vengeance by imposing the death penalty.

Since 2001, in New Mexico, no less than 22 children, ranging from ages of 5 weeks old to 3, 4, 5 months old to 3, 4, 5, and 11 years old, have been killed because of child physical and sexual abuse. (Re: August 31, 2016 Albuquerque Journal Editorial Guest column by Allen Sanchez.)

Study after study has shown that children from lower economic homes have a higher risk to suffer severe physical abuse and sexual abuse from their parents.

Cool heads must prevail and ensure swift justice is bought upon those who kill innocent children and police officers.

Our criminal justice system presumes innocence until proven guilty and demands due process of law, even for the most heinous of crimes, and not an “eye for an eye” approach to criminal justice reflected by the death penalty.

Even more important, Albuquerque and New Mexico must find solutions to what contributed to or caused the most horrific crimes: domestic violence, substance and drug abuse, children living in severe poverty, a poor education system, the breakdown of the family unit, the failures of our social services and child protective services, a failed mental health system, an ineffective criminal justice system, a failing economy.

We need to confront our demons and find solutions to the problems that cause the crime and not be misled to thinking that the death penalty and increased penalties are going to solve our social problems.

CONCLUSION

Governor Martinez has learned absolutely nothing during her entire seven years in office when she rolls out the same old legislative agenda year after year after year.

After seven years, Martinez has absolutely nothing to show for her “all crime all the time” legislative agendas.

There should be a way voter could “buy out” her contract the way UNM does with all its coaches.

Voters could pay her last year in office salary and throw in a letter of recommendation to Trump to hire her for his cabinet and get her out of town.

Hell, she could even replace Jeff Sessions, now wouldn’t that be special.

Former Bernalillo County District Attorney Kari Brandenburg in a letter to the Albuquerque Journal and in a front-page Journal story declared in no uncertain terms that she wanted to bring multiple felony charges against former APD Lieutenant James Brachle for the January, 2015 shooting of former undercover APD Detective Jacob Grant during a botched drug sting.

(January 7, 2017 Albuquerque Journal, page A-1, “FORMER DA: Felony charges warranted in 2016 officer shooting; AG dropped case because statute of limitations ran out on misdemeanor charges”)

The felony charges Brandenburg and her officer felt were in order at the time included “shooting at or from a motor vehicle”, a second-degree felony and “aggravated battery with a firearm”, a third-degree felony, with no misdemeanor charges.

THE TRAGIC SHOOTING OF APD DETECTIVE JACOB GRANT

In January 2015, former undercover narcotics APD Detective Jacob Grant was shot seven times point blank in a parked car by his APD Lieutenant James Brachle.

Undercover Narcotics Detective Grant was negotiating a drug buy from two drug dealers.

Grant had broken his cover when Brachle rushed the parked car, opened the car door where Grant was sitting and opened fire shooting Grant point blank seven (7) times according to police offense reports.

According to police lapel camera video, upon realizing who he shot, Brachle blurted out “I’m sorry man, I didn’t know it was you!”

It was reported that Brachle did not attend the “pre-sting” briefing where it was discussed where Grant would be in the vehicle but Brachle showed up to the sting operation any way.

Grant was extremely lucky to survive the shooting and underwent extensive surgery for his wounds, was hospitalized for months and eventually had to retire from APD because of his permanent physical disabilities related to his injuries from the shooting.

Ultimately, it was the citizens of Albuquerque that were held financially responsible for the tragic shooting that was at the very least negligent.

APD Officer Jacob Grant was paid $6.5 million dollars plus all his medical expenses being paid to settle the civil claim.

THE ATTORNEY GENERAL’S DECLINATION OF PROSECUTION

Months after Grant’s shooting, Brandenburg asked Attorney General Hector Balderas to take over the review and potential prosecution of the case after the unexpected death of the Deputy District Attorney who was handling the case.

It has been reported that Brandenburg made it known to Balderas that she felt felony charges should be brought.

The Attorney General agreed to take the case over for potential prosecution.

Attorney General Hector Balderas waited over a full year after Brandenburg left office to announce that there would be no prosecution in the case and that Brachle would not face any criminal charges.

The explanation for no prosecution was that the statute of limitations on misdemeanors had passed including the misdemeanor charge for “negligent use of a firearm”.

According to the Attorney General’s spokesman James Hallinan, the A.G.’s office determined that because Brachle was acting in his capacity as a law enforcement officer at the time of the shooting no felony charges could be filed against him under New Mexico law.

The finding by the Attorney General’s office that no felony charges can be brought against Brachle for the shooting of Grant is total and complete nonsense and a fabrication.

Whenever a police officer uses deadly force, it must be justified under statutory law as well as APD standard operating procedure, with no room for exceptions.

There is no such thing as a “friendly fire” killing or shooting in law enforcement as there is in military combat.

The fact that the shooting victim was a cop does not negate the fact that the shooting was done by another cop and it was still a police officer involved shooting and it must be investigated and determined if it was justified.

To put the shooting of Grant by Brachle into focus, former APD Police officers Keith Sandy and Dominique Perez were acting in their capacity as law enforcement officers when they shot and killed homeless camper James Boyd, and they were charged with murder.

Just because a police officer is acting in his capacity as a law enforcement officer when he discharges his firearm and injures or kills someone does not completely negate criminal or civil liability of the shooter.

The Department of Justice (DOJ) consent decree mandates that APD excessive use of force or deadly force cases must be investigated, yet nothing has been reported by news agencies if the Grant shooting was reviewed for violation of APD use of force policies.

Brandenburg wrote her letter to the Albuquerque Journal questioning the Attorney General’s decision not to proceed with felony charges against Brachle and the letter resulted in a front-page story.

(January 7, 2017 Albuquerque Journal, page A-9, letter to the editor by Kari Brandenburg, “Detective Shooting case was handled properly: DA’s office did not drag its feet seeking prosecution.)

https://www.abqjournal.com/1115805/detective-shooting-case-was-handled-properly.html

GAGGING ON THE DEFLECTION TACTICS

“No one should politicize this tragedy,” said James Hallinan, a spokesman for Attorney General Hector Balderas, referring to the shooting of Grant and responding Brandenburg’s allegations and letter.

The email to the Albuquerque Journal is a classic and pathetic response by a political operative to deflect the truth, avoid answering questions and taking any responsibility or making any decision that may be politically explosive.

It is Attorney General Hector Balderas with the help of his political operative who has now politicized the Grant shooting.

The public relations response by the Attorney General Hector Balderas is an example of why the public gags and gets disgusted with politics and political operatives who “pivot” on an issue to deflect blame.

The truth is, the statute of limitations may have run on the misdemeanor charges but the statute of limitations has not run on felony charges.

The Attorney General letter declining prosecution conveniently says absolutely nothing about potential felony charges.

Attorney General Hector Balderas in his letter declining prosecution goes out of his way to point out that outgoing APD Chief Gordon Eden never referred Greg Brachle to New Mexico Law Enforcement Academy Board to investigate the shooting as required by state law.

The New Mexico Law Enforcement Academy Board has the authority to suspend or revoke police certifications.

Attorney General Hector Balderas is the Chairman of the New Mexico Law Enforcement Academy Board and he has the authority to order the board’s investigators to review the case to determine if Brachle’s law enforcement certification and license should be revoked.

Balderas failing to make the referral himself to his own board is evidence of more political deflection to avoid taking any police oversight responsibility.

No satisfactory explanation has been made by the Attorney General why felony charges cannot be brought against former APD Lt. Greg Brachle.

Attorney General Hector Balderas letter declining criminal prosecution was delivered to new APD Interim Chief Greier the very day the Chief was sworn in.

Immediately upon being sworn in, APD Interim Chief James Grier referred the Grant shooting case to the New Mexico Law Enforcement Academy Board for investigation.

If Balderas does not want to prosecute a police officer for felonies in any case, or because he has a conflict, or he knows the difficulty in convicting any cop before a jury, or feels it will harm his working relationship with law enforcement, he should just say so.

Instead of being upfront and after agreeing to take the case in the first place, Balderas sends out his mouth piece to accuse another for “politicizing” a tragedy.

CONCLUSION

Attorney General Hector Balderas should refer the case back to the Bernalillo County District Attorney for a final decision.

Bernalillo County District Attorney Raul Torrez needs to decide once and for all if felony charges should proceed against Greg Brachle.

The problem is that Torrez may play the same little game of blaming his predecessor or say his office is too short handed to handle the case or does not have the resources.

DA Torrez has over 30 police officer involved shootings that are still pending review by special prosecutors on contract.

One more police officer involved shooting case should not pose that big of a problem, unless you do not want to make the hard decisions and do not want to alienate law enforcement.

Then again, Torrez can get Hallilan on loan so he can issue a press release that says he does not want to politicize another police officer involved shooting and therefore will not take the case back and prosecute.

Sleazier than thought; Hernandez and Huntsman gave judge only partial video

January 3, 2018

By: Dennis Domrzalski

https://www.abqreport.com/single-post/2018/01/03/Sleazier-than-thought-Hernandez-and-Huntsman-gave-judge-only-partial-video

Former Assistant Albuquerque Police Chief Robert Huntsman and former City Attorney Jessica Hernandez and crew were a lot sleazier than we knew when it came to trying to deceive the federal court judge about the alleged bias of the independent monitor in APD’s three-year-long reform effort.

Hernandez and crowd gave the judge only 14 minutes of a 45-minute video of a meeting in which Huntsman secretly recorded the monitor, James Ginger. And only about nine minutes of the 14-minute video they filed with the judge contained any disagreements between Ginger and APD staffers.

It means that Hernandez and crowd withheld 70 percent of the actual video from the judge.

Here’s the background:

In late October, Hernandez and Huntsman and former Chief Gorden Eden filed a motion with U.S. District Court Judge Robert Brack claiming that Ginger, was biased against APD.

As proof of that bias, the city provided Brack a 14-minute video of Ginger that Huntsman had secretly recorded on his department-issued lapel camera, and a transcript of the video that contained only the last nine minutes of the March 18, 2016 meeting between Hernandez, Huntsman, Ginger and others.

Brack ripped Hernandez and Huntsman for trying to deceive him and for trying to discredit Ginger and derail the reform effort. He said the first four minutes of the 14-minute video showed Ginger being cordial to APD officials, and not hostile.

Here’s where the real deception comes in: The entire video of the meeting in which Ginger allegedly threatened APD and Hernandez was 45 minutes long! That’s right, 45 minutes long. And in all but nine minutes of that meeting, Ginger is cordial to Hernandez and other APD honchos. He got a bit angry only after Hernandez verbally attacked him.

So Hernandez and Eden and Huntsman and crew gave Brack only 14 minutes of a 45-minute video.

Freelance journalist Charles Arasim obtained the full video through an Inspection of Public Records Act request to the city. The video of the meeting is in three segments. The first two segments are each 15 minutes and 55 seconds long, while the third, which is the one the city gave to Brack, is 14 minutes and two seconds.

In the first segment, Ginger focuses on APD’s struggles with trying to write acceptable policies and tells Hernandez and Huntsman that policies need to be written for people who are new to the subject matter.

“The purpose of policy is to train people who don’t understand it yet,” Ginger said.

There were no arguments or harsh words during those first 16 minutes of video.

In the second segment Ginger tells Hernandez and the others that his his team is frustrated by their inability to get APD’s crisis intervention training curriculum from the city contractor who developed it. Again, there are no arguments between the parties.

It’s only in the third segment that Hernandez confronts Ginger about not wanting to be surprised by the comments he was supposed to make about the reform effort to an upcoming City Council study session on the reform effort.

False statement by Huntsman?

In the city’s motion against Ginger, Huntsman said in an affidavit that he turned on his lapel camera only after becoming concerned about Ginger’s increasing aggression. But that doesn’t appear to be true, as Huntsman had his camera on for 45 minutes. As the Albuquerque Journal put it in a story it wrote about the motion:

“Huntsman said in a sworn affidavit that he normally wouldn’t have recorded the meeting, but did so because he was concerned with Ginger’s behavior. The camera, which doesn’t show much because it is pointing at a table, captures audio of a tense conversation.

“’I was incredibly disturbed by Dr. Ginger’s comments during this meeting, especially his comments about this being ‘a game’ and that the department would be ‘collateral damage,’” Huntsman said in the affidavit. “’Since that meeting, we have continued to experience interactions with the monitor that we believe were improper.’”

So what are the penalties for making false statements to a federal court judge?

On Nov. 16, when he denied the city’s motion for for a hearing on Ginger’s alleged bias against APD, Brack accused the city of manipulating the situation by providing him a transcript of only the final nine minutes of the 14-minute video. Here’s what he said in open court:

“When the City went public with the shortened video, the City made its bed. And what could the City possibly have been thinking when it filed the 14-minute video and a supporting transcript that covered only the nine-minute segment. Let me be clear, if I haven’t been. The City filed a written transcript with the Court titled, “March 18, 2016 meeting.” That transcript only covered the shortened nine-minute version of the video. On the last page of the transcript the court reporter certified that she had, quote, “listened to the entire recording,” close the quote. And that the transcript was, quote, “a complete record of all material included on the recording.” This tells me that the City showed the court reporter the same version of the nine-minute video that it made public. I’m left to speculate about the City’s intention.

“So after recording the monitor and manipulating the record, what does the City do? It waits for 20 months, biding its time until the eve of Dr. Ginger’s sixth report, and the election, before releasing the nine-minute video to the public.”

If Brack blew his top – and he did – because Hernandez and company manipulated the situation by not giving him the full transcript of the 14-minute video, I wonder how he’ll feel when he learns that Hernandez and company gave him only 14 minutes of a 45-minute video.

The only good thing about this is that Hernandez, Huntsman and Eden are gone.