The 2021 Albuquerque Municipal election for Mayor and City Council is about to officially start. March 1 is the first day candidates can declare to seek public finance beginning an 8-month election process.

Election day is Tuesday, November 2, 2021.

This blog article is a review of the requirements to get on the ballot, the requirements for public finance, a discussion of the jobs at stake as well as the roll “measured finance” committees will play in the election.

The municipal election is a “nonpartisan” race, meaning no one on the ballot will have a party affiliation listed. The New Mexico Constitution provides that all municipal elections be nonpartisan which is why the Albuquerque City Charter requires it and not because the framers of our charter thought it was a great idea. Notwithstanding, the Democrat and Republican parties are known to get very involved in one form or another either with volunteers, donations or both.

On the ballot this year will be the office for Mayor and the 5 odd numbered city council districts of the 9 city council seats. The council seats up for election are City Council seats 1, 3, 5, 7, and 9.

Although the municipal election is scheduled for November 2, 2021, there is a possibility that a runoff election will have to be scheduled within 30 days. Under the city’s election laws, a candidate in a slate of candidates must secure 50% plus one of the votes in order to avoid a runoff. If no candidate in a field of 3 or more candidates secures the required 50% plus one vote, a runoff is held between the 2 top vote getters.

THE INCUMBENTS

MAYOR TIM KELLER

Democrat Mayor Tim Keller has already made it known he is running for a second 4-year term but will probably schedule a formal announcement soon. Sources are saying the only potential opposition to Keller at this point is Democrat Bernalillo County Sherriff Manny Gonzales. It’s more likely than not the Republican party will recruit someone to run for Mayor.

TO THE VICTOR GOES THE SPOILS

The Mayor is paid $125,000 a year, but also at stake are 26 Department Directors who are at will employees and who serve at the pleasure of the Mayor and who are often paid much more than the Mayor. To emphasize the magnitude of the jobs that are at stake, following is a listing Mayor Keller’s top paid executives and their salaries. All are at-will employees who would be subject to removal if Keller does not win a second term and the new Mayor decides to fire them and replace them:

MAYOR’S APPOINTED EXECUTIVE STAFF SUBJECT TO ELECTION OUTCOME

The Mayor’s top appointed executive staff and pay include:

Nair, Sarita CA-Chief Administrative Office Chief Administrative Officer (CAO) $186,747.20
Rael, Lawrence D CA-Chief Administrative Office Chief Operations Officer (COO) $181,953.60
Bhakta, Sanjay FA-Finance Admin Svc Chief Financial Officer (CFO) $143,008.80

CITY DEPARTMENT DIRECTORS, DEPUTIES AND ASSISTANTS

Department Directors are appointed by the Mayor and are unclassified positions with starting salaries of approximately $116,000. The Mayor’s department directors and what they are paid are as follows:

Medina, Harold Chief Of Police $183,378.60 (Salary paid to Chief Geier before Keller fired)
Gonzalez, Arturo E Deputy Chief $140,498.63
Garcia, Eric J Deputy Chief $140,144.28
Dow, Paul Fire Chief $148,128.08
Aguilar Jr, Esteban A LG-Legal City Attorney $144,386.41
Mowery, David E Deputy Fire Chief $130,892.98
Frazier, Sean R Deputy Fire Chief 128,686.88
Nevarez, Danny S AW-Animal Welfare Director $139,886.00 (FORMER)
Osterloh, Brian A TI-Technology and Innovation Director $133,923.20
Simon, David J PR-Parks and Recreation Director $129,156.00
Leech, Mark T Technology and Innovation Deputy Director/DTI $128,884.60
Di Menna, Mark A EH-Environmental Health Deputy Director/EHSE $124,694.40
Montoya, Charles P MD-Municipal Development Director $124,088.00
Pierce, Carol M FC-Family Community Svcs Director $124,088.00
Chapman, Paul Ray TI-Technology and Innovation Assoc Chief Info Officer $123,073.60
Martinez, Jennifer Renee FA-Finance Admin Svc Director $122,414.40
Scott, Mary L HR-Human Resources Director $119,344.86
Van Etten de Sanchez, Mary CS-Cultural Services Director $119,020.00
Fleming, Baird E Cultural Services Bio Park Administrator $118,771.23 (FORMER)
Fanelli, Pamela S FA-Finance Admin Svc City Controller $118,771.22
Allen, Nyika AV-Aviation Director $117,648.01
Jaramillo, Synthia R ED-Economic Development Director $117,648.00
Sanchez, Anna M SA-Senior Affairs Director $117,648.00
Whelan, Matthew SW-Solid Waste Director $117,648.00
Duhigg, Katy M CC-Office of the City Clerk City Clerk $116,122.80 (FORMER)
Mitchell, Kenneth D Parks and Recreation Deputy Director-Parks & Rec $113,940.40
Williams, Brennon N PL-Planning Department Director $113,180.80
Lozoya, Melissa R. Municipal Development Assoc Director $113,169.64
Smith, Dean P CS-Cultural Services Assoc Director Library 113,211.20
Sourisseau, Kevin J Municipal Development, Deputy Director 112,041.60
Thompson, James Internal Audit City Auditor 111,195.20 (FORMER)
Truong, Loc T, Human Resources Deputy Director/HR 108,632.24

https://www.petedinelli.com/2020/05/28/9864/

FIVE CITY COUNCIL POSITIONS

Albuquerque City Councilors are paid $30,600 annually and the Council President earns $32,600 annually. They are also eligible to join the Public Employees Retirement Association and earn a pension after they have served 5 full years. Health Insurance is also made available to them.

The City Council incumbents are as follows:

District 1, City Councilor Lan Sena (Democrat) : She represents Albuquerque’s Central West Side. She was appointed to the City Council in March 2020, by Mayor Tim Keller. Sources are saying she is running for a full term.

District 3, City Councilor Klarissa Peña (Democrat): She represents the southwest part of Albuquerque. She was elected to the City Council in October, 2013. Sources are saying she is running for another 4-year term.

District 5 City Councilor Cynthia D. Borrego (Democrat): She represents the Northwest part of Albuquerque. She was elected to City Council in November 2017. Councilor Borrego is the current President of the City Council and sources are saying she is running for a second 4-year term.

District 7 City Councilor Diane Gibson (Democrat): She represents Albuquerque’s mid-heights including uptown and parts of the near northeast heights. She was elected to the City Council in October 2013. Councilor Gibson is the Vice President of the City Council and sources are saying she is not running for a second term but that could change in no one emerges to run against her.

District 9 City Councilor Don Harris (Republican): He represents the far Southeast Heights and Foothills. He was first elected to the City Council in 2005. Sources are saying Councilor Harris is running for another 4-year term.

2021 CANDIDATE GUIDE

The City of Albuquerque “2021 CANDIDATE GUIDE” provides a detailed candidate calendar of deadlines on pages 6 to 12 of the guide. The Candidate Guide provides the dates and requirements for the filing of campaign finance reports.

The link to the Candidate Guide is here:

http://www.cabq.gov/clerk/documents/candidate-guide-2-0.pdf

DISCLAIMER: This blog article should is not a complete outline of all the mandatory requirements for the 2021 municipal election. Any candidate for municipal office should rely on the candidate guide as the definitive requirements and deadlines

PETITION SIGNATURES AND TIME LINES FOR PUBLIC FINANCE CANDIDATES

According to the City Charter and election code ordinances, candidates for Mayor and City council must gather nominating petition signatures from registered voters who live within the city limits.

MAYOR NOMINATING SIGNATURE PERIOD AND REQUIREMENTS FOR PUBLIC FINANCED CANDIDATES

From April 17 to June 19, 2021, candidates for Mayor must gather 3,000 signatures from registered voters within the City. Each name and signature on the nominating petition is reviewed and compared to the voter registration rolls and if the person who has signed the petition name is not on the voter registration rolls, it is disqualified. Therefore far more than 3,000 signatures are needed to take into account disqualified signatures. Consequently, as many signatures above the 3,000 requirement is recommended for a “buffer” in order to ensure the minimum number of nominating signatures are secured.

CITY COUNCIL NOMINATING SIGNATURE PERIOD AND REQUIREMENTS FOR PUBLIC FINANCE CANDIDATES

From May 31 to July 5, 2021, candidates for City Council must gather 500 qualifying signatures from registered voters within the district the candidate wishes to represent. Each name and signature on the nominating petition is reviewed and compared to the voter registration rolls and if the person who has signed the petition name is not on the voter registration rolls, it is disqualified. Consequently, as many signatures above the 500 requirement is recommended for a “buffer” in order to ensure the minimum number of nominating signatures are secured.

EDITORS NOTE: The petition signature timelines for Mayoral Candidates and Council Candidates highlighted above are for publicly financed candidates.

PRIVATELY FINANCED CANDIDATES SIGNATURE COLLECTON PERIODS

Privately financed candidates also have to collect petition signatures, however they do this much later in the election cycle.

Privately Finance Candidates for Mayor must gather more than 3,000 signatures from registered voters within the City and can only gather signatures from June 8 to August 10, 2021. Each name and signature on the nominating petition is reviewed and compared to the voter registration rolls and if the person who has signed the petition name is not on the voter registration rolls, it is disqualified. Therefore far more than 3,000 signatures are needed to take into account disqualified signatures.

Privately Financed Candidates for City Council must gather more than 500 signatures from registered voters within the district the candidate wishes to represent and can only gather signatures from July 6 to August 10, 2021. Each name and signature on the nominating petition is reviewed and compared to the voter registration rolls and if the person who has signed the petition name is not on the voter registration rolls, it is disqualified. Therefore far more than 500 signatures are needed to take into account disqualified signatures.

You can find these timeframes here:

http://www.cabq.gov/vote/candidate-information/privately-financed-candidates

PUBLIC FINANCING AVAILABILITY AND GUIDLINES

March 1 is the first day for Mayoral Candidates to submit Declaration of Intent to Seek Public financing. Council Candidates may file their intent to seek public financing at any point after until the Qualifying Period has closed.

Qualifying public financed candidates for Mayor and City Council are given a single lump sum of money from the city they can use to run their initial campaign and if they make it into a runoff election, they are given a significantly reduced lump sum amount in public financing for the runoff election.

According to the city’s public finance laws, public finance candidates are given $1.75 cents per voter for regular elections and from 60 cents for runoff elections. In the 2021 municipal election, candidate for Mayor who qualify for public finance will be given $661,309.25. If the Mayoral candidate makes it into the runoff, they are given an additional 60 cents per registered voter.

The qualifying public finance candidates for City Council are also given the same amounts per registered voter in their City Council Districts or approximately $41,000 to $51,000, depending on register voter counts. If the city council candidate makes it into the runoff, they are given an additional 60 cents per registered voter in their district.

Candidates for Mayor and City Council are given 2 months to collect nominating petition signatures from registered voters.

Under the city’s public financing laws, candidates for Mayor are only given 8 weeks to collect the 3,779 qualifying donations of $5.00 which is a very difficult and daunting task unless you’re an incumbent and have a built in advantage of people relying on you for a job and have done it before for you. In 2017, there were 8 candidates for Mayor with only 1 candidate qualifying.

Public finance candidates for Mayor and City Council must agree in writing to a spending cap and can only spend what the city gives them.

EDITOR’S NOTE: Public finance candidates for Mayor and City Council can only accept $5.00 qualifying donations from registered city voters. Privately finance candidates can accept campaign donations from any legal source and from individuals, businesses and corporations within the city, county state or out of state and there is no city registration required.

EXPLORATORY PERIODS AND “SEED MONEY”

Candidates for Mayor and City Council who apply for public finance may “test the waters” before filing for candidacy by being allowed to raise “seed money” for their campaigns and determine their viability.

March 1 to April 16, 2021 is designated as the exploratory period for Mayor to collect “seed money” for a campaign for Mayor. Donations of $250 in seed money from individuals is allowed with a total aggregate of $132,261.85 allowed.

April 25 to May 30, 2021 is designated as the exploratory period for City Council candidates to collect “seed money” for their campaign.

City Council Candidates in all 5 City Council Districts on the November ballot can collect up to $250 in seed money contributions from voters in their Districts, but there is an aggregate cap on the total amount of seed money because of different voter registration numbers in each City Council District. The aggregate of seed money contribution limits for each city council district is as follows:

City Council District 1: $8,205.40
City Council District 3: $8,000.00
City Council District 5: $10,097.80
City Council District 7: $8,838.80
City Council District 9: $8,358.20

CAUTION: Participating candidates shall not have, within one year prior to the declaration of intent to seek public financing, raised or expended any monies in excess of the pre- and post- Exploratory Period contribution limits with the intent or effect of campaigning for elected office.

QUALIFYING CONTRIBUTIONS

Public financed candidates are required to solicit $5.00 qualifying donations, with the donations made to the city and not to the candidate and those donations can only come from registered city voters. Qualifying public financed candidates for Mayor and City Council are given a single lump sum of money from the city they can use to run their initial campaign and if they make it into a runoff election, they are given a significantly reduced lump sum amount in public financing for the runoff election.

Candidates must receive Qualifying Contributions from 1% of the registered voters in the city or district the candidate wishes to represent. For the 2021 Municipal elections, following are the required number of qualifying $5.00 donations that must be collected:

Mayor: 3,779

City Council District 1: 411
City Council District 3: 315
City Council District 5: 505
City Council District 7: 442
City Council District 9: 418

QUALIFYING PERIOD TO COLLECT $5 DONATIONS

A very short time period is given to collect the $5.00 qualifying donations.

Candidates for Mayor can collect the $5.00 donations only from April 17 to June 19, 2021, approximately 8 weeks to collect the 3,779 donations.

Candidates for City Council can collect the $5.00 donations only from May 31 to July 5, 2021, or approximately 4 weeks. Note the varying number of $5.00 donations for each council district.

PUBLIC FINANCE AMOUNTS AND SPENDING LIMIT

Once candidates for Mayor and City Council collect the minimum number of qualifying $5.00 donations, the city advances to the candidates in one lump sum public financing. In exchange for the public financing, the candidates must sign and agree to spend no more than what they are given for the campaign. Following are the amounts that will be advanced to qualifying candidates:

Mayor: $661,309.25

City Council District 1: $41,027.00
City Council District 3: $40,000.00
City Council District 5: $50,489.00
City Council District 7: $44,194.00
City Council District 9: $41,791.00

IN-KIND CONTRIBUTIONS ALLOWED

Candidates who have qualified for public financing are allowed to collect but must claim “in-kind” contributions, which are contributions of goods or services and not cash contributions. In kind contributions for public finance candidates have the following caps for individual in-kind and aggregate in-kind contributions :

Mayor: $6,250.40 individual, $132,261.85 aggregated

City Council District 1: $1,499.68 individual, $4,102.70 aggregated
City Council District 3: $1,499.68 individual, $4,000.00 aggregated
City Council District 5: $1,499.68 individual, $5,048.90 aggregated
City Council District 7: $1,499.68 individual, $4,419.40 aggregated
City Council District 9: $1,499.68 individual, $4,179.10 aggregated

PRIVATELY FINANCED CANDIDATES HAVE NO FUNDRAISING OR SPENDING LIMITATIONS BUT CONTRIBUTION LIMITATIONS

Unlike publicly financed candidates, who may only spend the funds given to them by by the City, privately financed candidates have no fundraising or spending limits. Privately financed candidates can raise and are free to accept campaign contributions from whatever legal source they want including contributions from individuals, businesses and corporations within the city, county, state or out of state and there is no city voter registration required.

Privately financed candidates can spend whatever amount they want on a campaign. Public finance candidates can only accept the $5.00 qualifying donations from registered city voters and agree in writing to spend only what the city gives them.

There are, however, limits on individual contributions privately financed candidates can accept from donors. Specifically, Article XIII, Section 4(e) limits the total contributions from any one person, with the only exception being the candidates themselves, and the private contribution cannot exceed 5% of the salary of the elected official at the time of filing the Declaration of Candidacy.

The individual aggregate amounts that can be collected by privately financed candidates from donors for the 2021 Mayor and individual city council races are as follows:

Mayor: $6,250.40

City Council District 1: $1,499.68
City Council District 3: $1,499.68
City Council District 5: $1,499.68
City Council District 7: $1,499.68
City Council District 9: $1,499.68

MEASURE FINANCE COMMITTEES

Public financed candidates are required to solicit $5.00 qualifying donations to the city and those donations can only come from registered city voters. All public finance campaigns and public finance candidates are required to agree to a spending cap in writing and are prohibited from soliciting and asking for any other donations. Public finance candidates are said to be at a distinct disadvantage to privately financed candidates when it comes to what can be raised and spent. That is not at all the case with the involvement of measured finance committees.

Under the City of Albuquerque’s campaign finance laws, a Measure Finance Committee is a political action committee (PAC), person or group that supports or opposes a candidate or ballot measure within the City of Albuquerque. Measure Finance Committees are required to register with the City Clerk within five (5) days once they have raised or spent more than $250 towards their purpose.

All Measure Finance Committees must register with the Albuquerque City Clerk, regardless of the group’s registration as a political action committee (PAC) with another governmental entity, county, state or federal. Measure finance committees must also file financial statements at the same time the candidates running for office report.

Measure finance committees are not bound by the individual contribution limits and business bans like candidates. However, a Measure Finance Committee that receives aggregate contributions more than 30% of the Mayor’s salary from one individual or entity, must incorporate the donor’s name into the name of the committee. No Measure Finance Committee is supposed to coordinate their activities with the individual candidates running for office, but this is a very gray area as to what constitutes coordination of activities and it is difficult to enforce.

KELLER’S CAMPAIGN MOBILIZATION

City hall confidential sources are reporting that Mayor Tim Keller has been aggressively organizing his 2021 campaign for the last 6 months. Keller has sought early endorsements from City Councilors who will be on the ballot with him and other elected officials as well. He is also asking for help in collecting the necessary nominating petition signatures and the necessary $5.00 donations to qualify for $661,309.25 in public finance presumably he goes that route. The amount of public finance has doubled from 4 years ago thanks to the changes in the public finance laws made by the City Council last year. Keller will also be relying on his city volunteer group of upwards of 3,000 that resembles more of a fan club that he organized soon after getting elected 3 years ago.

On August 8, 2018, it was reported that Keller hired his longtime political consultant and 2017 Mayor campaign consultant Alan Packman to work for the City in the Department of Innovation and Technology (IT). The IT Department oversees the 311 citizens call center. As of August 27, 2020, Mr. Packman is paid $80,329 a year. Mr. Packman reports directly to Keller. The 311-call center is the “eyes and ears” of city government working directly with the general public. It’s likely Packman has been working on Keller’s campaign for reelection in the off hours ( wink, wink) at least that is what is mandated by personnel rules and regulations. Only Keller and Packman really know for certain what projects Packman works on and what events Packman attends with Keller.

KELLER’S $1.3 MILLION DOLLAR CAMPAIGN FOR MAYOR WILL REPEAT ITSELF

Keller will likely qualify for the $661,309.25 in public finance as he did 4 years ago by collecting 3,779 qualifying $5 donations made to the city by registered voters. There is little doubt amongst political city hall observers the Mayor Tim Keller will once again count on measured finance committees to raise him millions more as he did 4 years ago.

During the 2017 race for Mayor, Keller was the only candidate out of 8 candidates that was able to secure public financing. In 2017, Keller was given $342,952 by the City in public finance in exchange for agreeing not to spend or raise and spend anymore. Keller made a big deal out of going the public finance road to run for Mayor saying he was opposed to dark money and collecting large donations for campaigns thereby being indebted to donors. Keller even went so far as to brag that by accepting public finance he was “walking the talk.”

The truth was, Keller’s public finance campaign was seriously underwritten by at least 3 “measured finance committees” that raised thousands of dollars to promote Keller for Mayor.

“ABQ Forward Together” was the progressive measured finance committee that was formed specifically to raise money to promote progressive Tim Keller for Mayor. The measured finance committee chairperson was a former campaign manager of Tim Keller’s when he successfully ran for State Senate. “ABQ Forward Together” raised over $663,000 for Keller’s 2017 bid for Mayor. The amount included cash donations or in-kind donations from the Working Families Party, Ole and the Center for Civic Action.

During the 2017 Mayor’s race, Keller received significant support in one form or another from the progressive organizations of OLÉ of New Mexico, the New Mexico Working Families Party, and Progress Now New Mexico. All 3 organizations or their membership in one form or another became very involved with the 2017 Albuquerque Mayor’s race.

When it was all said and done, a total of $1,358,254 was actually spent on Tim Keller’s 2017 successful campaign for Mayor. According to City Campaign finance reports, Keller was given $506,254 public finance money, $663,000 was raised by the measured finance committee ABQ Forward for Keller, $67,000 was spent by ABQFIREPAC on Keller’s behalf and $122,000 was spent ABQ Working Families for Keller for a total of $1,358,254.

https://www.petedinelli.com/2018/01/02/2018-year-to-reform-city-public-campaign-finance-laws-revised-article/

A HIDEOUS THREAT TO MUNICIPAL ELECTION

The fact that measure finance committees are not bound by the individual contribution limits and business bans like candidates is what makes them a major threat to warping and influencing our municipal elections and the outcome. Any Measure Finance Committee can raise and spend unlimited amounts of money and can produce negative ads to destroy any candidate’s reputation and candidacy.

The influence of big money in elections allowed by the US Supreme Court decision Citizens United is destroying our democracy. Political campaign fundraising and big money influence are warping our election process. Money spent becomes equated with the final vote.

Money drives the message, affects voter turnout and ultimately the outcome. It is disingenuous for any public finance candidate to secure taxpayer money first to run their campaigns, agree in writing to a spending cap, and then have their political operatives or supporters solicit or create a measure finance committee to help them get elected and spend massive amounts of money to give them an unfair advantage in the first election and then the runoff.

Voters need to follow the money and demand to know where the outside money known as “dark money” is coming from for any Measure Finance Committee and find out exactly who is trying to influence the election for the candidates. Voters need to beware of the candidates and their political consultants who are seeking help from measured finance committees to be fully informed as to who they are indebted to once they have been elected.

FINAL COMMENT

The city 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, continuing mismanagement of the Albuquerque Police Department, failed implementation of the Department of Justice reforms after a full 6 years and millions spent, declining revenues and gross receipts tax, high unemployment rates, persistent and increasing homeless numbers, a lack of mental health and counseling programs and very little economic development, just to mention a few.

The city can go no longer afford to elect a Mayor and City Council based upon promises and nothing but eternal hope for better times and for a better future. What is needed are elected officials that actually know what they are doing and will make the hard decisions without their eye on the next election or to placate their base. It is hoped that there will be more than just one candidate opposing all incumbents. What is needed is a healthy debate on solutions and new ideas to solve our mutual problems. Such a debate can only happen with contested elections. Let’s hope candidates who truly care about the city will run for Mayor and City Council with far more than just one or two running for each office.

Related links are here:

https://www.cabq.gov/vote/candidate-information/publicly-financed-candidates

The link to the 2021 Candidate Guide is here:

https://www.cabq.gov/clerk/documents/office-of-the-city-clerk-2021-candidate-guide-12-30-20-3.pdf

The link to Public Finance General Information is here:

https://www.cabq.gov/vote/candidate-information/publicly-financed-candidates/publicly-financed-candidates-general-information

The link to Election Matching Funds information is here:

https://www.cabq.gov/vote/candidate-information/publicly-financed-candidates/election-matching-funds

In response to the protests over police use of force in the aftermath of the May 2020 killing of African American George Floyd was killed while in the custody of Minneapolis, Governor Lujan Grisham and the Legislature took steps to deal with holding law enforcement accountable for civil rights violations, excessive use of force and deadly force.

The New Mexico legislature took steps to consider enactment of a state civil rights law. The goal is to create a civil rights cause of action against law enforcement and public government employees that would specifically prohibit the defense of qualified immunity. Qualified immunity is viewed as a major barrier or obstacle to holding police officers accountable when they use excessive force.

Governor Michelle Lujan Grisham called upon the New Mexico Legislature to create a Civil Rights Commission. It was in June that the 2020 New Mexico Legislative Special session convened during which the “New Mexico Civil Rights Commission” was created. On November 12th, the New Mexico Civil Rights Commission voted 5 to 4 in favor of enactment. of a “New Mexico Civil Rights Act.”

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.

The New Mexico Civil Rights Act would allow plaintiffs to file a lawsuit in state court against a public body or someone working on the public’s behalf to recover damages for violations of their civil rights under the New Mexico State Constitution. 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 protections or cover rights that don’t exist under federal law.

The practical effect under the current law is that whenever wrongful death cases are 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.

The proposed state Civil Rights Act will create a separate state cause of action and in turn a framework to recover 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 costs associated with the injuries, such as medical bills for injuries or losses incurred, including property damage.

The primary purpose of the new Civil Rights Act is to abolish 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 be abolished as a defense that would cover virtually all government employees, not just law enforcement.

The doctrine of “qualified immunity” is a United States Supreme Court defense doctrine used as a defense by law enforcement and public officials in federal cases. The elimination of the qualified immunity defense raises the serious question if government agencies that are not self-insured will lose their insurance coverage or even be able to afford it.

Under the proposed legislation, individual law enforcement and other government officials would not be “personally liable” to pay actual or punitive damages awarded by a jury, a judge or agreed to in a settlement. Under the proposed Civil Rights Act, such damages would be paid by the public agency or body that employs the law enforcement officer or government employee.

Damages being paid by the public agency or body that employs the law enforcement or government employee sued is already required under the New Mexico Tort Claims Act. The new act would require public government entities to keep a file of all judgments and settlements under the proposed Civil Rights Act and make the records available under the state’s Inspection of Public Records Act (IPRA).

Another question raised is if law enforcement and government employees will feel compelled or be required to carry some form a liability insurance on their own. The actual cost of such insurance is very real to government agencies already cashed strapped and to low wage government employees such as teachers. Teachers will be particularly vulnerable to charges that they are infringing on the rights of students first amendment rights of freedom of speech and religion.

Links to news sources are here:

https://www.newsbreak.com/new-mexico/santa-fe/news/2102340921572/nm-civil-rights-act-recommended
https://www.abqjournal.com/1517914/nm-civil-rights-act-recommended.html

“QUALIFIED IMMUNITY” DEFENSE EXPLAINED

Qualified immunity is a type of legal immunity created by the United States Supreme court 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.”

The qualified immunity defense is used in cases involving police officers. Qualified immunity protects a police officer from lawsuits alleging that the officer violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. The Qualified immunity doctrine balances two important interests. Those interests are the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.

When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case. Violations of constitutional rights would include the right to be free from excessive police force or unjustified deadly force for money damages under federal law so long as the officials did not violate “clearly established” law.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. The result is that courts must resolve qualified immunity issues as early in a case as possible. Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.

HB 4 APPROVED BY FIRST HOUSE COMMITTEE

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. It will now be presented for a hearing before the House Judiciary Committee which will likely be the last stop before reaching the full chamber. The testimony taken and the vote revealed just how controversial the legislation really is and the financial impact to government funding it will have,

House Speaker Brian Egolf, a cosponsor of the bill had this to say:

“We will begin to make the New Mexico Constitution more of a living document. Something that has greater meaning to the people of our state and will also hold public officials and public employees who commit misconduct—hold them accountable.”

https://www.kob.com/albuquerque-news/new-mexico-civil-rights-act-passes-first-house-committee/5990300/#:~:text=House%20Bill%204%2C%20or%20the,a%20cosponsor%20of%20the%20bill.

https://www.abqjournal.com/2337954/nm-civil-rights-law-passes-first-hearing.html

EXPECTED ARGUMENTS MADE IN SUPPORT

Supporters of the act emphasized the need for the legislation primarily concentrating on the need to hold law enforcement and government bodies accountable in state court for civil rights violations. Amongst the type of cases cited in support of the need of the act were the shooting of a woman having a psychotic episode by Bernalillo Sheriff’s Deputies and the wrongful arrest of a high school teenager by and APD Detective because of mistaken identity. News accounts of the committee’s hearing glossed over what happened in the two cases offered in support of the legislation. The two cases merit review.

THE ELISHA LUCERO SHOOTING

Tijeras resident Elaine Maestas, whose younger sister Elisha Lucero, was shot 21 times by Bernalillo County sheriff’s deputies in 2019 and she had this to say during the January 25 committee hearing in support of the Civil Rights Act:

“For me, it’s unbelievable that police are entrusted to make life-and-death decisions, yet they’re held to some of the lowest standards when it comes to accountability”.

It was in July, 2019, mentally ill Elisha Lucero, 28, was shot to death in front of her RV, which was parked in front of her family’s South Valley home. Deputies had responded to the home after a relative called 911 saying Lucero had hit her uncle in the face. According to the 911 call, a relative said Lucero was mentally ill, needed help, and was a threat to herself and to everybody else. Just one month prior, Lucero had called BCSO and asked to be taken to the hospital for mental health issues.

According to the lawsuit by the Lucero family, when deputies arrived, they said Lucero initially refused to come out of the home. The 4-foot-11 Lucero, naked from the waist up, rushed out running and screaming and armed with a kitchen knife attacking the officers. The Sheriff Deputies pulled their revolvers and shot Lucero. The sheriff deputies were not wearing lapel camaeras The sheriff deputies reported that they were fearful for their lives. According to an autopsy report, Lucero was shot at least 21 times by the Sheriff Deputies. The autopsy also revealed Lucero had high levels methamphetamine in her system.

On March 6, 2020, it was reported that the family of a mentally ill Elisha Lucero, 28 settled their lawsuit with Bernalillo County for $4 million dollars.

A CASE OF MISTAKEN IDENTITY

On December 5, 17-year-old Albuquerque High School Student Giselle Estrada was charged by a criminal complaint with the murder of Calvin Kelly. The criminal complaint was “sealed” in Juvenile Court meaning no one had access to it nor able to read it without the court unsealing it for review. A warrant was issued for Estrada’s arrest, she was notified by the public defender and she turned herself in.

Estrada was booked into the juvenile detention center on an open count of murder, armed robbery and conspiracy charges in the July 10 slaying of Calvin Kelly. APD Detectives for their part said Estrada’s refusal to speak left them with no choice but to book her on the charge of murder and jail her once she turned herself in. Estrada’s defense counsel repeatedly told APD and the District Attorney office that they had the wrong person and it was a case of mistaken identity.

A full 5 days after Estrada turned herself in and was booked, and as she sat in jail, another suspect was apprehended who told the APD detective they had identified and arrested the wrong person. Estrada was released on her own recognizance after spending 5 days in jail and with the charges dismissed. It turns out that the investigating officer relied on false information to identify the teenager and failed to follow up investigation the identity.

On December 3, 2020. The American Civil Liberties Union of New Mexico (ACLU) filed a lawsuit on Estrada’s behalf seeking unspecified monetary damages against the City of Albuquerque. The lawsuit alleges that APD Detective Carter’s actions amounted to a false arrest and deprivation of state constitutional rights. It is highly likely that the city will settle Estrada case for a significant amount given the cities policy to settle cases that are viewed as clear cut and the city attorneys office reluctance to defend cases of police misconduct.

https://www.koat.com/article/teen-who-was-wrongly-arrested-charged-with-murder-files-lawsuit-against-city-of-albuquerque/34867293#

EXPECTED OPPOSTION MATERIALIZES

As expected, the New Mexico Civil Rights Act was met with strong objections of city, county and school agencies with all expressing fears about the cost of new legal claims. Opponents of the bill worry state and local governments won’t be able to afford the costs of lawsuits filed under the act. New Mexico counties warned that they will lose insurance coverage if the Civil Rights Act is past and said it would increase the risk of taxpayers having to cover the tab for hefty legal claims.

Opponents also argue that money would be better spent on police training to prevent misconduct in the first place. Police chiefs and representatives of cities, counties and schools across the state said the proposal would raise insurance costs and do nothing to improve police training. Legislative analysts estimated the proposal will likely cost the state government and the Association of Counties about $20 million a year.

Roswell Mayor Dennis Kintigh testified against the legislation. Mayor Kintigh is a former FBI agent and police chief. According to Kintigh, local governments will face the choice of raising taxes or cutting services to accommodate increased insurance costs and legal claims. He also said qualified immunity is a common-sense standard and said in part:

“It provides reasonable protection for those who have acted reasonably in difficult situations … On the street, you have to make decisions in a split second. You don’t have the luxury of 20/20 hindsight.”

Farmington Police Chief Steve Hebbe said the proposal “does not do anything to achieve true police reform.”

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. 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 a little over $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.”

The link to news source for quotes is here:

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

HOUSE SPEAKER BRIAN EGOLF RESPONDS

On November 13, 2020, Retired New Mexico State Supreme Court Justice Richard Bosson, the Civil Rights Commission’s chairman, had this to say in a written statement:

“[The proposed law will] provide a legal vehicle for New Mexico citizens to fully enforce rights granted them by the New Mexico Constitution without importing artificial obstacles to the truth-seeking process such as qualified immunity.”

https://www.abqjournal.com/1517914/nm-civil-rights-act-recommended.html

Before the 2021 legislative session even began, House Speaker Brian Egolf said he supported the proposed Civil Rights Act said he intended to push for its passage during the upcoming session and said:

“I think giving New Mexicans the ability to vindicate their constitutional rights in a New Mexico courtroom is of fundamental importance.”

Speaker Egolf told the committee, a house committee he appointed, that he disputed that it would increase costs. According to Egolf, government agencies already face greater exposure in federal court than would be allowed under the proposed state Civil Rights Act. Egolf said he expects lawmakers to consider amendments to address some of the financial concerns, including the possibility of a cap on damages to protect small local governments.

According to Egolf, the public should not lose sight of the opportunity to better hold public officials accountable for civil rights violations. Egolf said expects lawmakers to consider amendments to address some of the financial concerns, including the possibility of a cap on damages to protect small local governments. Egolf also described the insurance concerns as being blown way out of proportion and put it this way:

“Opponents of the bill are driving a message of dollars and cents … because they can’t talk about the real people who are involved in these cases. … I think this is going to provide a lot of New Mexicans with greater access to justice. … The dollars-and-cents issue will be sorted out. … If people aren’t out violating the constitutional rights of New Mexicans, there really isn’t anything to be concerned about.”

The link to news source for quotes is here:

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

House Speaker Brian Egolf has pushed back before on the claims that enacting a civil rights statute to hold government accountable in cases of flagrant violations is needed, in addition to the federal causes of action that are already in federal law. Egolf scoffed at the argument that employee misconduct or wrongdoing will lead to costly legal claims. Egolf pointed out that plaintiffs would still have to prove their cases before a court under the proposed Civil Rights Act and which would not allow the legal doctrine of qualified immunity to be used as a defense in such cases. According to Egolf:

“Getting rid of qualified immunity doesn’t throw the doors open to anyone who wants to get a big check from the government.”

https://www.abqjournal.com/1522751/proposed-nm-civil-rights-act-could-be-costly-legislators-told-law-enforcement-local-officials-wary-of-law.html

BRIAN EGOLF, ATTORNEY AT LAW

New Mexico Speaker of the House Brian Egolf is the first named principal attorney in the law firm of Egolf, Ferlic, Martinez and Harwood, PC. The law firm is a highly respected Santa Fe group of trial attorneys known for their assertiveness. The firm specializes in part in ligation in the areas of civil rights, personal injury and wrongful death. According to its web page, the Egolf law firm:

“proudly advocates for citizens whose civil rights have been abused and violated by government agencies and others who fail to understand the strength and purpose of the Constitution of the United States and the Constitution of New Mexico. Standing up for citizens against illegal and improper government action is a hallmark of the Firm’s mission statement, and our lawyers are aggressive in defending the rights of the underdog.”

The link to the Egolf law firm web page is here:

https://egolflaw.com/

COMMENTARY AND ANALYSIS

On November 12th, when the New Mexico Civil Rights Commission voted to recommend the enactment of a “New Mexico Civil Rights Act”, former Supreme Court Chief Justice Richard Bosson said about enactment: “If there’s going to be a cost, that should fall, in our opinion, on the Legislature”. Bosson’s comment was nothing more than a reflection of a person use to making rulings usually for the benefit of just one party. Justice Bosom with his remark was not at all sensitive to the responsibility of the legislature and county and municipal governments to delivery essential services such as police protection, fire protection and education needs of its children and social services. Former Justice Blossom all too conveniently ignores the legislatures financial responsibility to its constituents who ultimately pay for judgments that will materialize as a result of a new cause of action.

It should come as no surprise that plaintiff’s lawyers, such as Speaker of the House Brian Egolf, are in favor of enactment of a Civil Rights Act and getting rid of the qualified immunity defense. To put it mildly, plaintiff’s lawyers simply do not like the “qualified immunity defense” created by the Federal Courts because it makes it much more difficult to recover damages in civil rights cases filed against law enforcement. It is not as much about “holding government employees accountable for misconduct” as it is making it a lot easier to prove a case and recover a larger judgment against a “deep pocket” such as government agencies.

APPEARANCES ARE EVERYTHING IN THE COURT OF PUBLIC PERCEPTION

What cannot be dismissed lightly and that should not be ignored, is that New Mexico Speaker of the House Brian Egolf is a New Mexico plaintiff’s trial attorney and a very successful and prominent one. He and his firm over the years has represented many a client plaintiff adverse to government entities in a courtroom. Lest anyone forget, attorney at law Brian Egolf sued the state of New Mexico just a few years ago over the medical marijuana residency requirements. Egolf voted on amendments to the medical marijuana law then turned around and sued the state over the changes in the law. Egolf’s actions as an attorney then as now with the Civil Rights acts raises more than a few questions of “conflict of interest” and the “appearance of impropriety” in the courtroom of public perception.

It’s absolute arrogance when New Mexico House Speaker Egolf says “Opponents of the bill are driving a message of dollars and cents … because they can’t talk about the real people who are involved in these cases.” Egolf chooses to ignore that real people will be on the receiving end as defendants of frivolous law suits that can destroy the career of a police officer, firefighter, teacher and other government worker.

The two high profile cases where “victims” of police misconduct case testified in the house committee reflect that the current legal system works. The family of a mentally ill Elisha Lucero, 28, who was shot and killed by BCSO officers settled their lawsuit with Bernalillo County for $4 million dollars. The American Civil Liberties Union of New Mexico (ACLU) filed a lawsuit in the Estelle Estrada mistaken identify case seeking unspecified monetary damages against the City of Albuquerque alleging that the APD Detective’s actions amounted to a false arrest and deprivation of state constitutional rights. It is highly likely that case will be settled before it ever gets to courtroom jury.

What Speaker Egolf said “Getting rid of qualified immunity doesn’t throw the doors open to anyone who wants to get a big check from the government” is true, except of course when an injured party retains the services of an aggressive plaintiff’s attorneys like the Egolf law firm. When New Mexico House Speaker Egolf says “I think this is going to provide a lot of New Mexicans with greater access to justice”, it is more likely than not he recognizes that it will include many of the present and future clients of the Egolf law firm.

There is no doubt that Speaker of the House Brian Egolf, like many of his fellow unpaid New Mexico lawmakers, needs to make a living and be gainfully employed. That’s normal for our citizen Legislature and is not a problem in and of itself. What is questionable is a Speaker of the House, or any other high-ranking legislator in leadership positions, to advocate for dramatic changes in the law that ultimately enriches themselves or their clients. Egolf sponsoring the Civil Rights Act was a mistake.

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. It’s likely that the state law would also need to mandate some form of “election of remedies” providing that a plaintiff alleging violation of civil rights must decide to either to proceed in state court or in federal court under the civil rights act commonly referred to as a 1984 cause of action.

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 the last 10 years 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 and firefighters. 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. It appears with the enactment of a Civil Rights Act as proposed, damage to a plaintiff, the liability of a government employee and the taxpayer wind up in the exact same place as to who pays for the damages under the Tort Claims Act. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court.

The enactment of the Civil Rights Act is a solution looking for a problem to solve.

Links to two previous and related blog articles are here:

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

As of January 31, there have been 15 homicides, in the month of January, 2021. According to APD, they have identified a suspect or possible suspect in 6 of the 15 homicides. At least 6 of those who died are women and eight of the 14 deaths happened between January 21 and January 29. So far, only one person is facing charges related to a homicide that occurred in January.

Links to news sources are here:

https://www.kob.com/new-mexico-news/violent-week-in-albuquerque-continues/5995016/?cat=500

https://www.abqjournal.com/2354217/apd-investigating-fatal-stabbing-and-suspicious-death-at-separate-abq-hotels.html

The 15 homicides are 2 more than the deadliest month in Albuquerque over the past 5 years. The record was 13 killings in each of the months of September and April of 2019 with 2019 being the record for the highest homicide total in recent history. The 15 homicides do not include one homicide classified as self-defense and do not in include vehicular homicides.

On Friday, January 29, three people were shot at one of the many apartment complexes on Montgomery near Carlisle with 2 women who died at the scene and with a third victim taken to UNM Hospital. During the January 16 weekend, a double murder off I-40 near Eubank occurred that is still under investigation.

BODY COUNT CONTINUES TO RISE

It was in late December, 2020 that APD officials said the city has not seen the same increase in homicides as other major cities. On January 28, Interim Chief Harold Medina held a press briefing to address the recent increase in homicides and was forced to back off on APD’s original assessment and said:

“It’s apparent now that we’re starting to fall in line with a lot of issues that other major cities in the United States are seeing. … We’re in uncharted territory in a lot of ways … but we wanted to assure the public we’re going to continue conducting operations and making modifications to what trends we’re seeing out there.”

https://www.abqjournal.com/2353936/apd-battles-surge-of-homicides-across-abq.html

During the January 29 press briefing, APD Interim Chief Harold Medina said the homicides are not “random” and involve drugs or domestic violence which is the reason many of the victims are women. Medina also went on to lay blame on staffing shortages and the pandemic by saying:

“The number one question is, ‘Should people feel safe?’ … We’re seeing trends in robberies that are related to narcotics and they are escalating to the point where we have homicides that occur as a result of this. … We need a lot more detectives in Homicide so they can devote the time. We have limited resources but we are giving two additional detectives to homicide.”

AS of January 31, APD has 12 homicide detectives and 2 sergeants with caseloads above the national average.

Interim Chief of Police Harold Medina pointed out that crime “is not a straight line” and that APD has been in this position before. Medina said:

“… We’re going to be going through peaks and valleys and that’s where we need to make quick adjustments as a department. … These are a lot of the steps we are doing to make sure that we’re communicating amongst one another as quickly as possible to get on these trends and see how we can devote resources to the problem.”

“I think the key is how we come out of this and how we develop programs and processes that are going to have long-term effects. … It’s really difficult for us right now because we’ve put together some programs that were showing promise. We were getting good results. We were doing well, and now we’ve seen this peak, and it’s really difficult to gauge because these programs. We’re not going to have an assessment until this pandemic is over.”

Links to news sources and quotes are here:

https://www.abqjournal.com/2353936/apd-battles-surge-of-homicides-across-abq.html

https://www.kob.com/albuquerque-news/albuquerque-facing-troubling-homicide-trend/5993736/?cat=500

MEDINA PRIVATELY TELLS OFFICERS APD CANNOT FOCUS ON CRIME BLAMING DOJ CONSENT DECREE REFORMS

On January 30, the on-line news outlets ABQ Reports and ABQ Raw both reported that APD Interim Chief Harold Medina addressed APD sworn personnel in a 4-minute internal message. The recorded message to all law enforcement personnel is referred to as the “Daily 49 Video”. The number 49 is code talk for police officer.

The recorded “Daily 49 Video” messages are not for release to the general public. In the recorded message, Medina says that the Albuquerque Police Department cannot focus exclusively on fighting crime because it is being forced to divert resources to comply with Department of Justice mandated reforms. The media outlet ABQ RAW obtained the video from a confidential source and then published it.

ABQ Reports reported that “a tired and defeated looking Medina … said that the police department is short of patrol officers and that he is asking officers in the field to determine which calls for service cops should not be sent to.” ABQ Raw for its part said the recorded message shows that Medina and the Mayor Keller Administration have admitted defeat in the fight against crime.

The ABQ Raw report and the video can be viewed in the entirety at this link:

https://www.facebook.com/abqraw/videos/1137832919984382

The link to ABQ Reports is here:

https://www.abqreport.com/single-post/bombshell-medina-says-apd-can-t-focus-on-fighting-crime

The most relevant portion of Medina’s recorded statement to APD sworn personnel is as follows:

“I wish, and those of you who know me … know that I would love to sit here and say that we’re going to focus on crime and crime alone. But the reality is that’s not where the Albuquerque Police Department is at this time, and we must change the culture for the good of the community and for the good of our officers. So we’re going to have to make sure that we’re open to ensuring that we move forward on all fronts, the compliance front and the crime front, and it’s a very delicate balancing act, and when we’re able to I intend to give more resources to Investigations.”

We recognize the Field [of patrol officers] is short and I’m going to ask commanders in the field to make sure their people are getting information to us on which calls we shouldn’t be dispatching to. So there’s a lot of moving parts to this. We’re well aware of them, we’re committed, and everybody recognize that this is a tough time for law enforcement across the nation.”

Editor’s Note: Under the Federal Court Approved Settlement Agreement (CASA) with the Department of Justice that APD has been laboring under for the last 6 years, APD must reach a 95% compliance rate in 3 major categories. A 95% compliance rate must be maintained for 2 consecutive years before the federal lawsuit can be dismissed.

UNION REACTS TO HOMICIDES

APD Union President Shaun Willoughby was asked to react to the number of homicides in January. Not at all surprising, Willoughby blamed the Department of Justice (DOJ) consent decree and said:

“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.”

https://www.koat.com/article/2021-starting-out-as-violent-year-in-abq/35356633

SOBERING STATISTCS

During the last 3 years, the city has had a record-breaking number of murders. In 2018, during Mayor Tim Keller’s first full year in office, there were 69 homicides. In 2019, during Mayor Keller’s second full year in office, there were 82 homicides. Albuquerque had more homicides in 2019 than in any other year in the city’s history. The previous high was in 2017 when 72 homicides were reported in Mayor Berry’s last year in office. The previous high mark was in 1996, when the city had 70 homicides. The year 2020 ended with 76 homicides, the second-highest count since 1996. The decline dropped the homicide rate from 14.64 per 100,000 people in 2019 to about 13.5 in 2020.

https://www.abqjournal.com/1534762/homicide-numbers-high-despite-pandemic.html?amp=1

HISTORICALLY LOW HOMICIDE CLEARANCE RATES

For the past three years during Mayor Keller’s tenure, the homicide clearance percentage rate has been in the 50%-60% range. According to the proposed 2018-2019 APD City budget, in 2016 the APD homicide clearance rate was 80%. In 2017, under Mayor Berry the clearance rate was 70%. In 2018, the first year of Keller’s term, the homicide clearance rate was 56%. In 2019, the second year of Keller’s term, the homicide clearance rate was 52.5%, the lowest clearance rate in the last decade. In 2020 the clearance rate dropped to 50%. Of the 75 homicides in 2020, half remain unsolved. There are only a dozen homicide detectives each with caseloads high above the national average.

VIOLENT CRIME

In 2018 during Mayor Keller’ first full year in office, there were 6,789 violent crimes, 3,885 Aggravated Assaults and 491 Non-Fatal Shootings.
In 2019, the category of “Violent Crimes” was replaced with the category of “Crimes Against Persons” and the category includes homicide, human trafficking, kidnapping and assault. In 2019 during Keller’s second full year in office, Crimes Against Persons increased from 14,845 to 14,971, or a 1% increase. The Crimes Against Person category had the biggest rises in Aggravated Assaults increasing from 5,179 to 5,397.

2020 VIOLENT CRIME STATS

On Monday, September 21, 2020, APD released statistics that revealed that overall crime in the city is down slightly across all categories in the first six months of 2020 as compared with the first six months of 2019. Crimes against persons are all violent crimes combined and include murder, deadly weapons assault and injury and rape. The decreases in “violent crime” from 2019 to 2020 was a decrease by a mere 21 crimes or a 0.28%. Over a two year period, it decreased 4%. According to the FBI statistics released, there were 7,362 crimes against persons reported in the first six months of 2020 and there were 152 more in the second quarter than in the first quarter.

MEDINA UNDERMINED GEIER’S GUN VIOLENCE PLAN

As gun violence continued to increase during the last 3 years, many plans were formulated to address it . In 2019, in response to the continuing increase in violent crime rates, Mayor Tim Keller and APD scrambled to implement 4 major crime fighting programs to reduce violent crime: the Shield Unit, Declaring Violent Crime “Public Health” issue, the “Violence Intervention Plan” (VIP program) and the Metro 15 Operation program. Based upon the statistics, the Keller programs have had very little effect on reducing violent crime.

Former APD Chief Geier said in September after he was fired by Keller that he and a commander created a violence reduction plan that included scheduling regular meetings and brainstorming sessions for officers to talk with their supervisors about patterns in fatal shootings and shootings with injury in their area commands and come up with plans to address it.

Graphs provided by Geier to the Albuquerque Journal showed that between January 1 and September 22, 2020, there was a 16% increase in shooting murders from 37 to 43. The goal was 31 or fewer. Shootings with injury increased 27% citywide, from 152 to 193, and 5 of the 6 area commands saw more or as many shootings with injury as this time the year before.

The Valley Area Command, which encompasses downtown Albuquerque, was the only one to see a decrease. Shootings dropped 38% from 34 to 21, which was below the goal. However, Geier speculated, that could be because bars and activities that typically draw crowds and violence have been shut down due to the COVID-19 pandemic.

Geier told the Albuquerque Journal that Deputy Chief Harold Medina never embraced the gun violence plan and that Medina went so far as to not instruct his officers to follow it through. Geier said the program was delayed in launching by 6 weeks, and those under Medina’s command had to undergo remedial training on the project a second time because they still didn’t understand it. Medina told Geier it was too confusing.

August 31, 2020, Chief Geier wrote a memo to then First Deputy Chief Medina and told him:

“We had a number of discussions over the next several months and it appeared that you made little effort to bring your people on board. … On May 19, 2020, I had to issue Special Order 20-40 in an effort to make up for lost time in our efforts to reduce gun violence. Rather than reductions, APD saw significant increases for over 4 months in this regard.”

In his memo to Medina, Geier wrote the startling disclosure that he felt

“[It’s] almost as if you made an effort to make this program fail … [and your] behavior has “bordered on insubordination.” Geier wrote Medina that he planned to move medina from the field services bureau. “I plan on discussing this with [CAO] Sarita [Nair] at our weekly update meeting this coming Friday, September 4th. I expect you to handle your new position as a professional so as to renew my faith and trust in you.” Geier made the very serious mistake of giving Medina a heads up that he would be talking to Nair because what Medina did was run right away to Nair to complain.”

Geier said he left the memo on Medina’s desk and didn’t see him again until after he was told to retire or get fired by Mayor Keller. “He probably just threw it away,” Geier said. Medina for his part said he never saw the memo. Given subsequent events, it’s highly likely Medina threw it away or gave the memo to CAO Sarita Nair as the first step in having Geier fired.

https://www.petedinelli.com/2020/09/28/a-chief-medina-is-kellers-unicorn-medinas-reactive-decision-making-results-in-death-chief-geier-i-did-not-want-to-retire-says-keller-and-nai/

COMMENTARY AND ANALYSIS

INTERIM CHIEF HAROLD MEDINA

What Interim Chief Harold Medina said in part on January 29, 2021 press conference merits repeating:

“I think the key is how we come out of this and how we develop programs and processes that are going to have long-term effects. … It’s really difficult for us right now because we’ve put together some programs that were showing promise. We were getting good results. We were doing well, and now we’ve seen this peak, and it’s really difficult to gauge because these programs – we’re not going to have an assessment until this pandemic is over.”

Not so fast “Interim” Chief Harold Medina. You are part of the problem considering what you pulled on former Chief Geier and his gun violence initiative. Knock it off trying to blame the pandemic for what is happening. Knock it off blaming the DOJ reform process for the high crime rates.

Medina has been a Deputy Chief of Field Services, then First Assistant Chief and now Interim Chief for over the last 3 years, all during Keller’s term in office. Since returning APD as a Deputy Chief, Medina has also worked on implementing the DOJ reforms.

All 4 of the programs announced by Keller to combat violent crime have been around now for almost a full 2 years. It was just last month that Medina tried to give a false narrative on the success of the 4 programs.

A link to a related blog article here:

https://www.petedinelli.com/2020/12/16/apd-interim-chief-medina-gives-false-narrative-on-success-of-kellers-anti-crime-initiatives-homicides-still-at-record-high-3rd-straight-year-under-mayor-tim-keller-despite-4-anti-crime/

In his internal office video to all law enforcement personnel, Medina said APD has a problem with staffing and that crime is raging out of control. When Medina says:

“… I would love to sit here and say that we’re going to focus on crime and crime alone. But the reality is that’s not where the Albuquerque Police Department is at this time, and we must change the culture for the good of the community and for the good of our officers … when we’re able to I intend to give more resources to Investigations”, he is ostensibly referring to the DOJ consent decree to change the APD “culture of aggression” found by the DOJ in 2014.

Medina knows better. To blame the DOJ consent decree for the spiking violent crime and murder rates is repulsive. Medina knows damn well a lot the problems are directly related to the APD management he has been a part of for the last 3 years when he was in charge of Field Services.

APD ON BRINK OF A CATASTROPHIC FAILURE

On Friday, October 6, Federal Monitor Ginger told the Federal District Court Judge 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.”

In the 12th Monitors report, Ginger states:

“We 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.
…
Still evident are systemic failures that allow questionable uses of force and misconduct to survive without being addressed in any meaningful way”.

APD HOMICIDE UNIT HAS BEEN LONG STANDING PROBLEM

When Medina said on January 29, 2021 “We need a lot more detectives in homicide so they can devote the time. We have limited resources but we are giving two additional detectives to homicide” one can only wonder where was Medina and what the hell he was doing as Deputy of Field Services for 3 years?

Over 3 years ago on December 28, 2017, it was reported the APD homicide unit was overwhelmed with only 11 detectives when the City reached a record high of 75 murders. APD management, which Medina was the Deputy of Field Services, did nothing to increase the size of the unit.

https://www.petedinelli.com/2017/12/28/apd-homicide-investigation-unit-overwhelmed/

On July 2, 2018, the legacy of botched APD murder investigations were highlighted, and again, APD management, including Deputy Medina, did nothing to increase the size of the homicide unit.

https://www.petedinelli.com/2018/07/02/abq-report-apd-homicide-units-legacy-of-shame/

During an October, 2019 City Council meeting, APD management said it was working on new strategies to ease the workload on APD homicide detectives. During the City Council meeting, APD Commander of Criminal Investigations Joe Burke had this to say:

“I would say in the long term if I was looking at a long-term solution—I believe we need two homicide units. I think the best practices around the nation normally have two homicide units. Detectives should be balancing between three to five investigations and we’re nearly double that.

… We absolutely need detectives in criminal investigations. … I was happy when I went over at the end of July and was briefed on the status of the unit that there’s a plan in place within the executive staff that when cadets are graduating from the academy that we’re going to get a certain percentage specifically for the criminal investigations bureau.”

https://www.petedinelli.com/2020/09/04/53-murders-and-counting-52-clearance-rate-apd-adds-one-sergeant-to-homicide-unit-as-solution/

On November 21, 2019 when the number of homicides hit 72, it was again advocated that the Homicide Investigation Unit be increased from 11 detectives to at least 25 detectives. Further, given the units low clearance rate and past performance, more was needed to be done then with respect to recruiting and training. At the very least, APD needed to ask for temporary assignment of personnel from other agencies such as the Bernalillo County Sherriff’s Department or the State Police to help clear out the cases.

https://www.petedinelli.com/2019/11/21/city-matches-homicide-record-high-of-72-murders-mayor-keller-forced-to-defend-policies-makes-more-promises-asks-for-more-money/

On New Year’ s Eve, December 31, 2019, the City hit a new all-time record of 80 reported homicides, again with an embarrassing clearance rate. It was advocated to increase the Homicide Unit from 11 to at least 25 detectives, and still nothing was done.

https://www.petedinelli.com/2019/12/26/all-time-low-apd-clearance-rate-charging-and-jailing-an-innocent-child-for-murder-can-lead-homicide-unit-to-water-but-refused-to-be-trained/

On Friday October 23, 2020 the Albuquerque Police Department (APD) released its “Use of Force” report covering a four-year time period from January 1, 2016 to December 31, 2019. The report showed a 4-year increase in APD “Use Of Force” incidents with 19 Civilian Deaths, 2,395 Uses of Force, 1,087 Shows Of Force.

https://www.petedinelli.com/2020/10/27/apd-use-of-force-report-shows-4-year-increase-in-apd-use-of-force-19-civilian-deaths-58251-arrests-2395-uses-of-force-1087-shows-of-force-small-fraction-of-overall-crime-s/

EDITOR’S NOTE: Links to virtually all the blog articles cited were emailed individually to Mayor Keller, the Chief and the Deputies and the articles presumably were ignored.

UNION PRESIDENT SHOOTS MOUTH OFF

What APD Union President Shaun Willoughby had to say to KOAT TV on January 28, 2021 merits repeating:

“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.”

Willoughby is essentially blaming the DOJ consent decree for the spiking violent crime and murder rates and its nothing less than repulsive.

The one who is not telling the truth or lying when it comes to the DOJ consent decree is Police Union President Shaun Willoughby. The truth is Willoughby and his union membership of sergeants and lieutenants have been the biggest impediment to implementation of the Court Approved Settlement Agreement (CASA) reforms. This impeding of the DOJ reforms by the police union lieutenants and sergeants has been repeatedly reported upon by the Federal Monitor’s since the 10th monitor’s Report.

APD UNION IS THE COUNTER CASA EFFECT

It was on September 10, 2018, during a status telephone conference call held 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.

In his 10th report Federal Monitor Ginger referred to the group as the “Counter-CASA effect” and stated:

“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 Federal Monitor’s report released on November 2, 2020:

“[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.”

https://www.petedinelli.com/2020/11/09/12th-federal-monitors-report-apd-on-the-brink-of-catastrophic-failure-failing-miserably-to-police-itself-police-union-obstructs-reforms-commentary-rem/

PROHIBITION OF UNCSONSTITUTIONAL POLICING PRACTICES IS WHAT IRKS POLICE UNION

The police union leadership have said in open court that the mandated reforms under the consent decree are interfering with rank-and-file officer’s ability to perform their job duties. According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. The police union has never articulated in open court and in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs.

What the union no doubt feels is interfering with police from doing their jobs is the mandatory use of lapel cameras, police can no longer shoot at fleeing cars, police can no longer use choke holds, police need to use less lethal force and not rely on the SWAT unit, police must use de-escalating tactics and be trained in crisis intervention, and management must hold police accountable for violation of standard operating procedures.

The consent decree was negotiated to be fully implemented during a 4-year period and then after two years of compliance dismissed. Over 6 years have now elapse and APD is still struggling to implement the all 271 mandated reforms agreed to by the City and APD in 2014. What the union has been doing for the last 6 years is disrupting the reform process. Instead of fighting the consent decree, the police union should have embraced the reforms and help implement them. Only then will APD be able to fight crime.

MAYOR TIM KELLER

In 2017, then State Auditor Tim Keller campaigned to be elected mayor on the platform based in part on promising to bring down the cities skyrocketing violent crime rates and murder rates and implementing the Department of Justice (DOJ) mandated reforms. As he campaigned for Mayor, Keller had this to say about the city’s high crime rates:

“It’s unfortunate, but crime is absolutely out of control. It’s the mayor’s job to actually address crime in Albuquerque, and that’s what I want to do as the next mayor.”

Keller has not done any better job with the reforms than his predecessor. Both Mayor’s have failed to actually address crime in Albuquerque. Crime in the city has only become worse under Keller especially in terms of violent crime and murders. Keller has also been as big a failure implementing the consent decree reforms as was his predecessor.

Mayor Tim Keller would be wise to recognize that APD Interim Chief Harold Medina has now shown his true colors. Medina has told Keller what he wants to hear in order to be appointed permanent Chief. Mayor Keller would be a damn fool not to recognized that Police Union President Shaun Willoughby’s obstructionist union activities need to be stopped once and for all. Mayor Keller needs to negotiate the removal of all management positions of Lieutenants and Sergeants from the police union, otherwise, the union will continue to resist the DOJ reforms.

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