On November 2, there were 5 candidates running for the District 7 City Council seat being vacated by City Councilor Diane Gibson who decided not to seek a second term. In general, District 7 is the Mid-heights council district that includes Coronado Shopping Center and Uptown surrounding areas and parts of the near northeast heights with Lomas, Carlisle and Menaul all part of the southern border, Montgomery as the Northern border and Eubank as the Eastern Boarder.

On November 2, no candidate received 50% of the vote and a runoff is required between the top two candidates and the runoff is scheduled for December 7. On November 2 Republican Lori Robertson came in first securing 32% of the vote as a privately financed candidate spending $72,687. Democrat Tammy Fiebelkorn came in second with 24% of the vote and she was a public finance candidate spending $44,194. Both Robertson and Fiebelkorn are now privately financed candidates for the December 7 runoff election.

WESTSIDE LEGACY CHURCH PASTOR STICKS HIS NOSE INTO DISTRICT 7 CITY COUNCIL RUOFF RACE

Legacy Church is a Christian Fundamentalist Church with 3 locations in Albuquerque with Steve Smothermon as the main pastor. Legacy Church is considered the largest Christian fundamentalist congregation in the city with its main church located on the city’s westside. Legacy Church pays no taxes on congregation tithe nor on other donations because it is a 501 (c) (3) charitable organization.

On Tuesday, November 23, Pastor Steve Smothermon of Legacy Church, told his congregation to vote for Republican Lori Robertson over Democrat Tammy Fiebelkorn. In a video posted by the church, Smothermon is heard telling his congregants:

“Listen, early voting is open now. Go vote till December 4 because we need people like her on the city council. … We need people like her [Lori Robertson] to make sure this crazy guy they call mayor doesn’t continue to push his agenda. …”

Smitherman is heard on the video telling his congregation that Robertson had an information booth set up in the foyer of the church for people who wish to speak with her after the service.

When contacted by news agencies for comment about what he said during his religious service, Pastor Steve Smothermon had this to say:

“We have surely done nothing wrong, and believe we have conducted ourselves within the bounds of the law, given our First Amendment rights. … Separation of church and state was originally intended to protect the church from government persecution. Indeed, this country was in great part founded by those seeking religious freedom.”

On Wednesday, November 24, Tammy Fiebelkorn said she hoped that the state Attorney General’s Office as well as the Federal Internal Revenue Service would investigate and she had this to say:

“I would never set up a informational table for an election in a church lobby under any circumstances because there is a separation of church and state. Churches are 501c3 nonprofits and should not be engaging in political discourse like that. … I have always been told that nonprofit 501(c)(3)s are not supposed to engage in political discourse. … I really hope that the AG and the IRS look into this and see if what he did violated the church’s nonprofit status. More importantly, I really hope that the District 7 voters get out and make their voices heard.”

When contacted by news agencies for a response to Fiebelkorn and to Pastor Steve Smothermon actions, Republican Lori Robinson said:

“My opponent is trying to fabricate a scandal that does not exist and has repeatedly tried to paint me as a right-wing extremist. … What I can say is I appreciated the opportunity to share my faith and to meet with voters and discuss my solutions for our city’s problems. … [Pastor Smothermon] said ‘I personally would vote for her, but that’s up to you. She will be in the lobby to answer any questions, and you can talk to her and find out if she’s somebody you would like to vote for’ . … Just because it’s a religious institution doesn’t mean they’re second-class citizens that don’t have rights and the opportunity to interact with candidates.”

Robertson made it clear she has not received financial support from Legacy church. However she has likely received “in kind donation” help from Legacy Church with the use of its lobby area.

LEGACY CHURCH IS 501 (c) (3) TAX EXEMPT

Legacy Church is a 501 (c) (3) federal and state tax exempt organization.

To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in the tax code. None of the earnings of a 501(c)(3) tax exempt organization may inure to any private shareholder or individual. In addition, a 501(c)(3) tax exempt organization may not be a political action organization. Specifically, it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates.

Organizations described as 501(c)(3) are commonly referred to as “charitable organizations”. Organizations described as 501(c)(3), are eligible to receive tax-deductible contributions in accordance with the Internal Revenue code. Under Federal Internal Revenue code regarding churches and religious organizations with 501(c)(3) status, these entities “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

The organization must not be organized or operated for the benefit of private interests, and no part of a section 501(c)(3) organization’s net earnings may inure to the benefit of any private shareholder or individual. If an organization is found to engage in an excess benefit transaction with a person having substantial influence over the organization, an excise tax may be imposed on the person and any organization managers agreeing to the transaction.

Section 501(c)(3) organizations are strictly restricted in how much political and legislative lobbying activities they may conduct. Including endorsing and actively involved with political campaigns.

https://www.irs.gov/charities-non-profits/charitable-organizations/exemption-requirements-501c3-organizations

SMOTHERMON NO STRANGER TO CONTROVERSY AND GOVERNMENT CONTEMPT

Legacy Church and its pastor Steve Smothermon have a lengthy history of attempting to exert influence over Albuquerque city hall and city politics in general. The church has made much appreciated donations to city hall to buy first responders equipment for both firefighters and police. The Church also from time to time retains the services of APD police to work “Chief’s Overtime” for purposes of traffic control at its services.

The good Legacy church does for first responders all too often is offset by the church getting involved with city politics. In 2009, It was common knowledge amongst city hall observers that Smothermon was a staunch supporter of Republican Mayor Ricard Berry when he ran against Democrat Marty Chavez. Berry is a Christian fundamentalist and a photograph published by the Albuquerque Journal of Berry being blessed and prayed over on civic plaza raised more than a few eyebrows.

At the beginning of Berry’s first term in office, Smothermon strenuously objected to Berry hiring as a Mayor’s Office spokesperson a person who did not pass Smothermon’s “moral” litmus test. That person terminated city employment within a few months as a fallout to the pressure exerted by Smothermon on Berry. Smothermon also was known to have a strong dislike for Mayor Berry’s appointed Chief Public Safety Officer at the time.

CHALLENGING THE GOVERNOR’S EMERCGENY HEALTH CARE ORDER AUTHORITY

Last year, Smothermon publicly challenged the validity Governor Lujan Grisham’s COVID-related restrictions on church attendance and mask mandates. Legacy Church was fined $10,000 by the state Department of Health for violating the Governor’s health care orders. During last year’s Christmas services, controversy broke out when video of Legacy Christmas nighttime service revealed that very few people wore masks.

In 2020 on Christmas Eve, there were strict restrictions on occupancy and mask requirements across the state. The pandemic was raging and the state was classified as “red”. Christmas time 2020, churches were allowed to be at 25% capacity in order to deal with the pandemic and to stop the spread of the disease.

Mega churches Legacy Church and Calvary church ignored the mandates and held Christmas Eve services. Both were cited for violating the Governor’s health care orders. The New Mexico Department of Health fined both Legacy Church and Calvary Church $10,000 for violating capacity restrictions and the mask-wearing requirement after photos emerged of Christmas services held in excess church capacity and no masks were worn. The video from Legacy showed hundreds gathered in the church sanctuary area singing, “Silent Night,” with few masks in site.

After being fined in 2020, Legacy Church pastor Steve Smothermon had this to say:

“We have taken the pandemic seriously from the start, and have prudent measures in place. But when governments exceed their constitutional authority and contradict what we are called on by God to do, we answer first to His authority. … We will never pay them a penny. We don’t believe they have the legal authority to fine or tax the church. … “

https://www.kob.com/albuquerque-news/albuquerque-megachurches-fined-5k-for-violating-public-health-orders/5962802/

https://www.koat.com/article/albuquerque-church-violates-public-health-order-with-unmasked-full-capacity-christmas-eve-service/35085594

The truth is Smothermon never took the pandemic seriously. The truth also is the health care orders never prohibited Legacy Church nor its congregation from exercising first amendment rights of religion let alone free speech. During the height of the pandemic last year Legacy church could have taken measures to protect its congregation by holding virtual services, having outdoor services while people attended service in their vehicles, the church could have mandated masks, perhaps even buy masks to distribute to its congregation or even offer and schedule vaccination clinics at the church when vaccinations became available.

STEPPING OVER THE LINE OF COMMON DECENCY

Simply put, Smothermon repeatedly steps over the line of decency intentionally blurring, mixing and stirring his Christian beliefs with free speech and warping his bible preaching with the politics of hate and intolerance. One very good example of Smothermon’s toxic mixture is a 36 minute sermon Smothermon gave entitled “CHRISTIANS: It’s Time To Shout!” that was posted on Youtube and can be seen and heard at this link:

https://www.facebook.com/watch/?v=560085735099577

In the sermon, Smothermon makes outrageous claims attacking anyone as being too liberal or too progressive. Smothermon condemns those who are transgender, condemns a woman’s right to choose, says government should not pay for abortions with taxpayer money, condemns the media, defends the rich, does not believe mask are needed, is opposed to vaccines, preaches that only his God, Jesus Christ, is the genuine God and biblical teachings supersedes the law of man. He extolls the virtues of the Texas anti-abortion statute as being the best in the country, if not the world.

A few of the most alarming, divisive and intolerant statements made by Smothermon in his sermon posted on YOUTUBE are worth quoting:

“In today’s world we see the world, the left, the liberals, are so loud with their message its everywhere proclaiming God is not real and we are our own God. It’s been screaming for years and we have gotten use to it. Its message is that you are your own god and you are not accountable to anyone.”
…
“[To them] it’s about how you feel. Remember feelings [to them] are fact. … You feel like a girl, then you are a girl they say even if you were born a boy. … There is no right and wrong [with them] but it is how you feel at the moment.”
…
[They say] abortion is a right … . When did abortion become a right that we must pay for it with our tax dollars? You do the act, but out of convenience you say you do not want the baby.”
…
“I have had parishioners come up to me and say “I think abortion is o.k. [and I say] ok you can leave.”
…
“They are screaming, yelling loudly to tell you what to believe. Even with this vaccine, and it’s not an immunization. … First they said [if it] was taken, it would fix everything! Now [they say] it won’t keep you from getting it, but it will keep you from the hospital. You see how their message changes? It changes all the time because they don’t know and they continue to inundate us and get us to believe in things that are not real and we sit and start believing it.”
…
“Can you hear it screaming? If your rich or successful somehow you are evil, your’re evil! Somethings wrong with you. You got too much and you must give it to someone else. … Even Christians start believing this junk. … I do not care, [where the money comes from] it’s not my business.”
…
“The church has never been prosecuted so much as it has been today.”
…
“Our stinking media never tell you much. … They never tell you the truth. They bring it up a day then it’s gone. … When it’s the church, it lasts for 3 days.”
…
“They are screaming, they are indoctrinating you, getting you to believe things that are not true.”
…
Does anyone believe it was right that 40% of businesses has to close down [under the Governor’s health care orders] never to reopen?”
…
“If you buy NIKE you are supporting one of the most evil places that support the most anti god stuff. If you go to TARGET, WALMART, SAM’s Auto, they are globalists. They do not even believe in America. … They were all allowed to prosper while [locally owned] businesses were force to close [during the pandemic]. … Smith’s is owned by a bunch of Mormon’s [and stayed open.]

NO COMPLAINT FILED, NO REPONSE FROM IRS

On Wednesday November 24, Jerri Mares, a spokeswoman for the New Mexico Attorney General’s Office said it has not initiated an investigation of Smothermon or Legacy Church and said:

“We have not received a complaint regarding this specific matter. ”

David A. Tucker II, regional spokesman for the Internal Revenue Service, said that “because of privacy regulations, the IRS does not comment or discuss an individual or an organization’s relationship” with the federal agency.

Links to quoted news source material are here:

https://www.koat.com/article/lori-robertson-legacy-church-albuquerque-new-meico/38326813

https://www.abqjournal.com/2449628/video-shows-pastor-backing-city-council-candidate-from-pulpit.html

CITY COUNCIL PARTY MAJORITY AT STAKE

When Pastor Steve Smothermon says to his congregation:

“We need people like .. [Lori Robertson] to make sure this crazy guy they call mayor doesn’t continue to push his agenda” it is clear he knows what is at stake in the December 7 runoff which is Republican control of the City Council.

When referring to Mayor Keller as “this crazy guy”, Smothermon is saying Keller is too progressive and that Smothermon opposes the Mayor’s city hall progressive agenda. Smothermon also knows if there is a Republican takeover of the city council, his influence at city hall will be increased substantially especially if his fellow Christian pastor Dan Lewis becomes President of the city council with a Republican majority which Lewis is already proclaiming will happen.

Robertson has also secured the endorsement of the Republican leaning Albuquerque Police Union. The Police Union has done something it has never been known to do in past elections and that is litter District 7 with signs throughout the district proclaiming police union support for Robertson.

The Republican party is making a serious attempt to secure a majority of 5-4 on the City Council, but that will require winning of the District 7 and District 9 city council races in the runoff. District 7 is currently represented by two term Democrat progressive Diane Gibson who decided not to seek another term. District 9 is currently represented by 4 term conservative Republican Don Harris who also decided not to run for another term.

After the November 2 election, there are 4 Democrats and 3 Republicans on the new city council.

The 4 Democrats are:

District 1 Louis Sanchez (Elected on November 2 defeating Lan Sena.)
District 2 Isaac Benton
District 3 Klarissa Peña (Ran unopposed on November 2 .)
District 6 Pat Davis

The 3 Republicans are:

District 5 Dan Lewis (Newly elected on November 2)
District 4 Brook Bassan
District 8 Trudy Jones

The District 7 race between Republican Lori Robertson and Democrat Tammy Fiebelkorn is viewed as the swing seat to take over the council. District 7 has some of the highest residential burglaries in the city with an increasing homeless problem. Republican insiders feel they have the very best chance of flipping the city council Republican given the platform of Democrat Fiebelkorn. According to one confidential source, Fiebelkorn is placing too big of an emphasis on equal rights, environmental issues and animal rights while ignoring the district’s violet crime rates.

Progressive Democrat Fiebelkorn is campaigning on a platform of “safe streets with more programs to address substance abuse and behavioral health, equal rights and protections for all residents, relief from the COVID pandemic … , transition to a clean energy economy, and City policies that protect and respect all animals.” Fiebelkorn has been endorsed by progressive City Councilor Diane Gibson to replace her. A link to Tammy Fiebelkorn’s November 21 guest column to the Albuquerque Journal entitled “Advocate for safety, equality, clean energy and animals” outlining her campaign platform is here:

https://www.abqjournal.com/2447564/advocate-for-safety-equality-clean-energy-and-animals.html

Conservative Republican Lori Robertson’s proclaims that the cornerstones of her campaign for city council are “increasing public safety, decreasing homelessness, improving economic development and creating community”. The link to a November 21 guest column entitled “No-nonsense approach to cutting crime, homelessness” outlining her campaign platform is here:

https://www.abqjournal.com/2447570/nononsense-approach-to-cutting-crime-homelessness.html

Not as much effort is being given by Republicans in the District 9 City Council race between Democrat Rob Grilley and Republican Renee Grout. Many Republican operatives and insiders believe that their candidate Renee Grout has the advantage thus far, is leading in the early voting over the Democrat Rob Grilley in organization and money. Republicans refer to the history of the district voting for right wing Republicans such as Republican Don Harris for decades. Notwithstanding, confidential sources have said Renee Grout attended Legacy Church after Robertson attended seeking help for her campaign against Grilley. The makeup of District 9 has changed for the last few years, it has become more Democratic which is one of the biggest reason’s Councilor Don Harris decided not to run for a 5th term.

COMMENTARY AND ANALYSIS

Our freedoms of speech and freedom of religion are two of our most precious rights protected by our United State Constitution. With that said, those freedoms do have limitations and carry with them the responsibility to use them in a responsible manner that does not violate the law. For example, Freedom of Speech does not allow someone to yell fire in a crowded theater when there is no fire, nor does it allow you to threaten to kill someone. Freedom of Religion too has limitations. For example, you cannot make a human sacrifice in praise of your god, even if your human sacrifice agrees to it and wants to be killed and become a martyr. The point is that Freedom of Religion does not mean freedom to violate the law.

WELL SETTLED LAW

The First Amendment to the United States Constitution states in full:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The language “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” is known as the “establishment clause” and the “free exercise clause” respectively. In 1802 it was Thomas Jefferson, the principal author of the Declaration of Independence, and the third President of the United States who deemed it “separation between Church and State.” The language forms the textual basis for the Supreme Court’s interpretations of the “separation of church and state” doctrine.

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

Since 1905, the United States Supreme Court has said repeatedly in rulings that it is constitutional in a public health crisis for the government to require people to do certain things or to prohibit certain things that they normally would not do or could do and even refuse to do. In 1905, during the small pox epidemic, the United State Supreme Court case of Jacobson v. Massachusetts, 197 U.S. 11 (1905), upheld the authority of states to enforce compulsory vaccination laws and health care orders. Jacobson was a Christian Minister who refused to be vaccinated as required by the government and refused to pay a fine imposed. The United States Supreme Court has heard several challenges to these mandates and public health orders and has consistently ruled the mandates are indeed constitutional based on protecting the public health, safety and welfare.

DISTRICT 7 CANDIDATES

To be clear, Republican candidate Lori Robertson did not violate any Federal Internal Revenue rules nor regulations governing the activities of Legacy Church as 501(c)(3) organization and she should not feel she needs defend herself. It is also a big stretch for Robinson to say the church is being treated like second class citizens when in fact what is being asked is why it is not paying taxes if it wants to be political.

It is also opportunistic political pandering when Tammy Fiebelkorn says “I would never set up a informational table for an election in a church lobby under any circumstances because there is a separation of church and state.” Comments like Fiebelkorn’s have a tendency to come back and haunt politicians as time passes and being called a hypocrite.

FEDERAL TAX LAW

The Federal Internal Revenue Service (IRS) website does address the issue in general terms and the potential consequences of a church or religious organizations with 501(c)(3) status violating the IRS regulation. These entities <em>“are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” Violating that prohibition “may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.” The operative word is “may”.

It is clear from reading the Federal Internal Revenue code, 501(c)(3) charitable organizations cannot endorse candidates if they want to keep their non-profit status and not pay taxes. According to IRS rules and regulations nonprofits are not allowed to endorse candidates verbally or in writing if they want to be tax-exempt. Under the IRS code and regulations, a 501(c)(3) charitable organization lose their nonprofit status, then the IRS can tax them on their donations like any other business.

Simply put churches are nonprofits under the IRS code 501(c)(3), and that means to keep their nonprofit status, they must stay out of endorsing candidates for office and churched must stay out of partisan politics. With that said, many political candidates get around the strict IRS restriction by having priests, pastors, ministers or rabbis stand with them to give “tacit” or implied support to their chosen candidate. Catholic, Baptist, Episcopal and Jewish Clergy usually do not tell a congregation to go vote for a specific candidate knowing full well it could jeopardize their tax exempt status .

Any and all violations of federal tax law rest solely on the shoulders of Pastor Steve Smothermon and it is he who needs to be held accountable for his conduct.
There are likely two separate IRS code violations:

1. Smothermon’s overt solicitation that his congregation support and vote for a candidate he recommends.

2. Allowing a political candidate to use church facilities and set up a campaign table and pass out campaign materials.

With 8 days left before the December 7 election it’s not at all likely any formal actions will be taken against Legacy Church or Smothermon. The big question is if state or federal authorities feel the actions of Smothermon were so egregious as to mandate revoking the church’s 502 (c) (30) tax exemption. It is likely if anything does happen, it will be a fine or warning, as was the case with fines assessed against Legacy Church last year for violation of the Governor’s health care order.

WHAT’S AT STAKE

Should there be a Republican takeover of the Albuquerque City Council, you can expect any number of setbacks of progressive programs and policies promoted by Mayor Tim Keller and advocacy of Republican policies and programs. Among those items are:

1. Repeal of the city’s immigration friendly policy that Republicans falsely label as sanctuary city.
2. Opposition to or perhaps repeal of the city’s minimum wage ordinance.
3. Opposition to any mandatory sick leave ordinances for the private sector.
4. Oppose enforcement by Mayor Keller of emergency health care orders for the Corona Virus Pandemic, including opposing any and all-mask mandates and opposing mandatory covid vaccinations of city employees.
5. Reduction in social service programs to help the homeless and the poor, including a scaling back of the Gateway Homeless shelter operations.
6. Advocacy of late term abortion prohibitions as was placed on the 2013 municipal ballot and which failed then.
7. Opposition to the Department of Justice mandated police reforms.
8. Oppose any and all increases in the gross receipts taxes or property taxes to fund city essential services even when deficits occur.
9. Advocate the reduction in the size of city government and eliminate new departments and programs created by Mayor Keller by denying funding for such Departments as the “Office of Equity and Inclusion” that deals with immigrant relations.
10. Advocacy of increased criminal penalties as part of the city’s legislative package and bail bond reform measures.

Should there be a Republican takeover of the city council, Democrats will have only themselves to blame given that District 7 and 9 have Democrat majorities. Democrats lose elections in Albquerque when they fail to vote.

IT’S SMOTHERMON’S CROSS TO BEAR

Smothermon knows better. It is disingenuous that he continues with his political stunts and endorsements. When he says he will not pay the fine, he knows damn well he will just pass it along to his congregation as they clap for him with adoration.

Smothermon thinks he is above man’s law and that he only answers to his own god’s law. He try’s to hide behind the first amendment of the constitution. Smothermon knows full well under the U.S. Constitution and our federal tax laws, his church can engage in free speech and support a candidate all they want, but to do that he knows Legacy church needs to pay taxes and cannot be a nonprofit.

Smothermon and Legacy Church should just pay taxes and stop with the charade that he is not political. Another option is for Smothermon to simply step away from Legacy Church and just run for elective office himself and be a full time politician instead of being a “religious godfather” pulling the strings of those he supports such as Lori Robertson should she be elected.

This whole mess of Smothermon using his sermons for a political agenda falls squarely on the shoulders of Steve Smothermon. It is his cross to bear and not his church’s congregation.

Smothermon needs to “Give unto the State the fine he owes and unto his God sermons that are religious and not political endorsements. ”

Can I have an Amen please!

NEWS UPDATE:

Below is the link to the December 3, Albquerque Journal Editorial

Editorial: Pastor’s endorsement of candidate merits probe
BY ALBUQUERQUE JOURNAL EDITORIAL BOARD
FRIDAY, DECEMBER 3RD, 2021 AT 12:02AM

https://www.abqjournal.com/2451291/pastors-endorsement-of-candidate-merits-probe.html

The New Mexico Civil Guard is a heavily armed self-described militia group that showed up last year at several protests around Albuquerque, including a June 2020 protest of the Juan de Oñate statue in Old Town. Shortly after that protest, Second Judicial District Attorney Raúl Torrez filed a lawsuit against the Civil Guard trying to limit its activities.

On November 15, Bernalillo County District Attorney Torrez announced he has filed a petition in California Superior Court for the County of San Mateo, California, asking a California State Judge to enforce a New Mexico subpoena that would “compel Facebook to produce requested information and records.” Facebook took down the group’s page in August 2020 after the company determined that the Civil Guard had violated the company’s policy barring hate speech and dangerous organizations from the social media platform. A Facebook spokesman responded that the social media company cooperates with law enforcement requests as a matter of policy and remains in discussions with Torrez’s office. Torrez said he expects a hearing before the California judge by early 2022.

The lawsuit filed by Torrez against the New Mexico civil guard alleges that civilian militias can be activated only by the state’s governor. The Civil Guard was acting like law enforcement with no legal authority to do so, according to the suit, which remains pending.

https://www.abqjournal.com/2446501/da-asks-california-judge-to-compel-facebook-to-release-militia-data.html

https://www.kob.com/albuquerque-news/qanda-da-rauacutel-torrez-discusses-new-petition-filed-against-facebook/6302942/?cat=500

LITIGATION HISTORY

On Monday, July 14, 2020, Bernalillo County District Attorney Raúl Torrez filed a civil lawsuit to stop the New Mexico Civil Guard private militia from usurping the state’s military and law enforcement authority. The lawsuit was filed against the New Mexico Civil Guard and 14 of its members who “include some individuals associated with white supremacist and neo-Confederate organizations,” according to the civil complaint.

The lawsuit argued that the New Mexico Constitution says civilian militias can only be activated by the governor and alleges the New Mexico Civil Guard is acting like law enforcement. According to the lawsuit, the New Mexico Civil Guard are acting like law enforcement by holding training sessions, outfitting themselves with military equipment and gear, and patrolling protests armed and in uniform without any legal authority to act in any kind of law enforcement capacity.

The lawsuit alleges that membership includes people associated with white supremacist and neo-Confederate ideology. According to the lawsuit:

“[NMCG has routinely used paramilitary tactics] at protests, demonstrations, and public gatherings throughout New Mexico, providing wholly unauthorized, heavily armed, and coordinated ‘protection’ from perceived threats.”

The federal civil complaint makes specific allegations that are alarming as to the actions of the New Mexico Civil Guard. Paragraphs 2, 4, 5, 7 and 8 of the complaint are succinct and outlines the <em>“New Mexico Civil Guard” activities and what they are all about:

“2. The so-called “New Mexico Civil Guard” (NMCG) is not an organized police force or an organized part of the military. Nor is it affiliated with or overseen by the Government. Yet this group formed for the claimed purpose of maintaining the peace and both fashions itself and pretends to function as a part of the state military. NMCG’s coordinated, armed, and uniformed presence at public events results in intimidation and creates a chilling effect on the exercise of First Amendment rights to address matters of public concern. NMCG’s attempt to operate as a private police or military unit in Bernalillo County is a per se public nuisance that must be abated to protect public safety, allow the free and open use of public forums, and minimize violent armed confrontations.
… .
5. NMCG has unlawfully exercised and intends to continue to unlawfully exercise the power to maintain public peace reserved to peace officers. NMCG’s membership is not composed of peace officers, and New Mexico law clearly provides that NMCG and its members have no civil or military authority to maintain the public peace.”
… .
“7. This is a case about paramilitary action that threatens public safety and intimidates the public’s exercise of First Amendment rights. It is not a case about gun ownership, gun possession, or self-protection. Importantly, NMCG’s paramilitary activity is not protected by the Second Amendment, and the relief that the State seeks does not run afoul of Defendants’ Second Amendment rights. … .

“8. Nor is this a case about political viewpoints. To the extent NMCG has certain white supremacist ties, their viewpoint heightens the risk of violence at certain public events because of the antipathy they hold for particular groups of protesters. But the threat posed to public safety by paramilitary actions at public demonstrations or gatherings exists regardless of the paramilitary organization’s underlying ideology. Put simply, there is no place in an ordered civil society for private armed groups that seek to impose their collective will on the people in place of the police or the military. … .”

The link to the civil complaint filed is here:

https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2020/07/State-v.-NM-Civil-Guard-Filed-Verified-Complaint.pdf

https://www.cnn.com/2020/07/14/us/new-mexico-militia-group-lawsuit/index.html

On September 9, 2021, 8 members of the citizens militia group known as the New Mexico Civil Guard (NMCG) filed a federal lawsuit against the City of Albuquerque and the Albuquerque Police Department (APD). The lawsuit claims the 8 were “targeted” by APD when they showed up on June 15, 2020 at the protest over the “La Jornada” (The Journey) sculpture in front of the Albuquerque Museum. The protest was for the removal of the figures of Juan de Onate de Salazar in the sculpture. A man was shot during the protest.

According to a federal lawsuit, the citizens militia group claim city officials targeted them for no reason. The lawsuit alleges that the city was aware the militia group was going to be there and APD positioned officers near the protest waiting until a Civil Guard member “committed a crime and planned to then arrest them.” The plaintiffs alleged they did nothing wrong and were detained anyway by APD.

The Civil Guard members allege one of them was attacked at the protest and at that point all the civil guard left the crowd. According to the complaint, after they had moved away, 31-year-old Steven Baca pulled a concealed handgun and started shooting, hitting one man. When the shooting began, the guard members returned and ran toward Baca and upon encountering him, one militia member stepped on the gun or “kicked his gun away”.

The lawsuit alleges that even though police knew the group wasn’t associated with Baca, they “arrested” the plaintiffs anyway, held them for hours for questioning, not allowing them to talk to lawyers or even use the restroom . They were eventually released after interviews.

EDITOR’S NOTE: The allegation that they were arrested is false. No militia member was arrested but they were held for questioning and then released.

At the time of the incident, Bernalillo County District Attorney Raul Torrez said that the militia members had a right to be at the protest and bear arms. However, the DA made it clear they did not have the right to intervene as “enforcers of the law”. The DA later filed an injunction to prohibit the Civil Guard from acting in any police or military capacity and to declare the group a “nuisance” posing an immediate threat.

A link to the complete news report is here:

https://www.krqe.com/news/politics-government/nm-civil-guard-sues-city-over-juan-de-onate-protests/

COMMENTARY AND ANALYSIS

The filing of a single law suit against one citizen militia is not going to go far in resolving such activity by others. Further, going against FACEBOOK in California will only get you so far. Torrez himself says Facebook took down the New Mexico Civil Guard’s page, but he says they will not turn over any other information. Even if the lower court grants the relief Torrez requested, it is more likely than not the social media giant will drag it out as long as possible and appeal any adverse decision against them.

https://www.koat.com/article/da-says-members-of-far-right-extreme-group-at-onate-protest/38258842

District Attorney Raul Torrez has a good track record when it comes to lobbying the New Mexico legislature in Santa Fe for what he wants. It is known that Torrez is already lobbying for changes in the bail bond system and for “rebuttable presumption against release” pending trial of defendants charged with certain violent crime. Instead of pursuing windmills against a mega social media giant, Torrez could better use his time and efforts to lobby to outlaw all citizens militias not government sanctioned or enactment of a comprehensive civilian militia registration act.

OUTLAW OR REGULATE CITIZENS MILITIAS

Citizen Militias are not regulated in the State of New Mexico. As part of a “crime fighting package”, District Attorney Raul Torrez should as the Governor and the legislature to include the outlawing or regulating citizens militias in the stat, There is no comprehensive federal law that regulates them under the Second Amendment to the US Constitution.

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

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

https://nij.ojp.gov/topics/articles/what-gang-definitions
A “citizens militia” needs to be defined as:

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

A Citizen Militia Registration Act would require citizen militias to:

Allow only American Citizens to be members of a citizen militia.
Register with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) within the United States Department of Justice or in New Mexico with the New Mexico Homeland Security Office.
Require members to register their firearms with the ATFE or State.
Pay yearly regulation fees and firearm certification fees and carry liability insurance.
Identify all their members by name, address and contact information.
Prohibit felons from joining.
Limit their authority and powers so as to prevent militias to engage in law enforcement activities.
Require members to pass criminal background checks and psychological testing.
Mandate training and instructions on firearm use and safety.
Require all militias and its members to agree to follow all local, state and federal laws and apply for permits to attend functions sponsored by others.
Failure to register as mandated would be a felony.

FINAL COMMENT

Those who take it upon themselves to associate and bear arms calling themselves “citizen militias” take it to the extreme when they attend protests fully armed in military attire proclaiming they are there to assume the responsibility law enforcement to protect people and property. Such attendance amounts to nothing less than vigilantism.
New Mexico needs to outlaw or regulate citizens militias before someone gets killed.

On December 2, incumbents Democrats Lan Sena and Cynthia Borrego lost their reelection bids to Moderate Democrat Louis Sanchez and Republican Dan Lewis respectively. Incumbents Democrat Diane Gibson, District 7 and Republican Don Harris, District 9, decided not to seek another term. The 4 city councilors terms end on December 31 and their successors take office on January 1, 2022.

After the November 2 election, there are 4 Democrats on the new city council:

District 1 Louis Sanchez (Elected on November 2 defeating Lan Sena.)
District 2 Isaac Benton
District 3 Klarissa Peña (Ran unopposed on November 2 .)
District 6 Pat Davis

After the November 2 election, the 3 Republicans on the new city council are:

District 5 Dan Lewis (Newly elected on November 2)
District 4 Brook Bassan
District 8 Trudy Jones

The December 7 runoff elections will decide what party will have control of the city council. It will elect a new City Council President at its first meeting in January who will appoint all committee chairs. The December 7 run off in City Council District 7 is between Democrat Tammy Fiebelkorn running against Republican Lori Robertson. District 7 is the Mid-heights, north of the state fairgrounds, includes Coronado Shopping Center and Uptown and surrounding areas and parts of the near northeast heights. In the District 9 City Council race, Democrat Rob Grilley is running against Republican Renee Grout. District 9 is the far SE district, bounded by Eubank on the west, Menaul on the north, Sandia Moutain foothills open space on the east and KAFB on the south and the Four Hills Country Club area.

The Republican party is making a serious attempt to secure a majority of 5-4 on the City Council, but that will require winning of the District 7 and District 9 city council races in the runoff. On November 10, the Republican Party of New Mexico and the Republican Party of Bernalillo County issued a press release announcing they are joining forces and sharing resources to win the two key runoff elections on December 7 that will decide who will control the city council. Republicans are aggressively canvassing both City Council Districts in a get out the vote effort and raising money for mailers and phone banking.

LEWIS DISRUPTIVE TO RUN FOR MAYOR EVEN BEFORE BEING SWORN IN

City Councilor elect Dan Lewis previously served two terms on the City Council from 2009 to 2017. Lewis ran unsuccessfully for Mayor against Tim Keller in 2017. Keller won the 2017 runoff by a decisive landslide by securing 60,219 votes or 62.20% against Dan Lewis who secured 36,594 or 37.8% of the vote.

Lewis told www.PeteDinelli.com after he was elected “you better believe that this mayor will be accountable now” essentially saying he intends to be as disruptive as possible over the next four years. On November 23 New Mexico Politics with Joe Monahan also reported that backers of Lewis who have spoken with him said he “will demand accountability” from the administration and shake up the council which they say “has been a joke.” Lewis has said once he becomes City Council President he will end all Zoom meetings started at the beginning of the pandemic and that he intends to aggressively question Keller’s department directors, including APD management and Mayor Keller’s representatives in person.

With a little less than 2 weeks before the December 7 runoff elections, Republicans are saying they are confident they will win the December 7 run off elections and control the city council with early voting favoring the Republican candidates. If that happens Dan Lewis is saying he will be elected the new President of the City Council. Confidential sources are also confirming that Lewis is telling supporters he is running for Mayor in 2025 and intends to do whatever he can to disrupt progressive policies put in place by Democrat Mayor Tim Keller.

Republican political operatives are also saying even if the City Council remains a 5-4 Democratic controlled council, it will be moderate Democratic City Councilor elect Louis Sanchez who will be the swing vote on the council with the most influence. Republicans believe Councilor Louis Sanchez will be more of an ally of Dan Lewis than of his Democratic colleagues on the council. Councilor elect Sanchez defeated progressive Democrat Incumbent Lan Sena who was appointed by Mayor Tim Keller to the city council and she was a reliable progressive vote for Keller.

CITY COUNCIL $110 BOND PROPOSAL

On November 2, voters approved $140 million in general obligation bonds to pay for a range of other city projects. However, voters also rejected a Gross Receipt Tax Bond (GRT) bond initiative of $50 million for the construction of a new soccer stadium. The $50 million gross receipt tax bond for the new soccer stadium had 35% who voted for it and had 65% who voted against it. City officials are now saying the funding that would have gone toward a new stadium can now be directed toward reducing crime and help address the homeless crisis.

On November 15, a $110 million bond proposal resolution was formally introduced. The resolution is scheduled to be voted on by the full city council at the next city council meeting scheduled for December 6.

The GRT City Council Bond resolution is co-sponsored by Democrat City Councilor Klarissa Peña, District 3, South West Albuquerque, and Republican Councilor Brook Bassan, District 4, North East Albuquerque. It has been reported that City Councilor Bassan consulted with Mayor Tim Keller’s administration to develop the bill and come up with final project list. It is Republican Bassan’s consultation with the Democratic Mayor that has upset Lewis and the New Mexico Republican Trump party. Sound familiar? Republicans who vote for Democratic President Joe Biden’s infra structure plan are being accused of being traitors by Der Führer Trump.

The bonds, backed by the city’s gross receipts tax revenue, are being proposed by the city council and it will not require voter approval. A “super majority” of 7 of votes on the City Council is required. Such authority is given to the city council as is the authority to enact gross receipt tax increases, property taxes and lodger tax allocations.

The Gross Receipts Tax (GRT) General Obligation bonds resolution seeks to borrow $110 million to build a upwards of 16 major infrastructure projects around the city. The project list includes more than $45 million for improving parks, open spaces, recreational facilities, a new multi-generstion center across from Cibola High School. Another $40 million will be dedicated to public safety projects, including updating the Albuquerque Police Department downtown headquarters north of city hall, the APD academy building, and other public safety facilities.

Chief Financial Officer Sanjay Bhakta said the bond debt will take upwards of 20 years to pay off starting at $5.7 million annually and eventually rising to $10 million annually until paid off.

According to the city council resolution, the $110 million GRT bond proposal includes the following projects:

Public housing, including sobering center : $25.6 million
Remodeling of the APD main building: $12.5 million
North Domingo Baca Aquatic Center: $12 million
Cibola Loop Multigenerational Center: $10 million
West Side public safety facility: $10 million
San Mateo/Kathryn public safety center: $7 million
Police department academy: $5 million
City buildings: $5 million
Southeast Area Command second phase: $4.4
Westgate Community Center: $4 million
Loma Linda Community Center: $4 million
Los Altos pump track: $3 million
West Side recreation fields: $3 million
Civic Plaza awning: $2 million
Phil Chacon Park: $1.5 million
Westside Indoor Recreation Complex: $1 million

Mayor Tim Keller voiced support for the bonding plan after his administration worked closely with City Council sponsors Pena and Basaan and said in a statement:

“This investment plan puts $110 million into addressing our city’s most pressing challenges, while continuing to lift up the civic spaces that people will enjoy for generations to come. ”

DAN LEWIS DEMANDS DELAY TO GO ALONG WITH HIS POWER PLAY

The $110 million dollar bond resolution is scheduled for a final vote on December 6 which will be the very last meeting of the year for the city council and the day before the city council December 7 runoff. The legislation will be among the final legislative actions for 4 of 9 city councilors.

Republican City Councilor Brook Bassan said the December 6 vote the day before the runoff election is intentional and explained it this way:

“I think right now is a really good time to be able to recognize the continued priorities that were in the council before we have a new turnover of the council, at which point priorities could change.”

Councilor elect and two term former City Councilor Republican Dan Lewis, who defeated current Democrat Council President Cynthia Borrego in the November 2 election said this:

“Four city councilors who would make a decision on this won’t even be here in January. … For that reason alone we need to deal with this with a new council in January.”

Republican city councilor Brook Basaan balked at the suggestion that the council vote be delayed until the new City Council is sworn in and said:

“If that were the case, terms … would end November 3 but they don’t.”

Republican Lewis is predicting that the bond package will lose on December 6 before he joins the city council, likely because he has made contact with conservative Republican City Councilors Trudy Jones and Don Harris to vote no on the bond package while Progressive’s Pat Davis and Isaac Benton are expressing reservations about the vote and a few of the projects still very much in the planning phase. Benton went so far as saying the vote “does not pass the smell test.” The 4 can block the initiative resulting in a a 5-4 vote when it needs a 7-2 vote.

The links to quoted source material are here:

https://www.krqe.com/news/politics-government/city-councilors-propose-investments-in-public-safety-facilities/

https://www.abqjournal.com/2447063/110-million-bond-proposal-divides-city-leaders.html

NOT THE FIRST TIME FOR LEWIS

On November 3, the Albuquerque City Council passed a 5 page “memorial” on a unanimous bi partisan 9-0 vote that reestablishes the Albuquerque City Council’s commitment to bringing down the city’s spiking violent crime rates.

City Councilor Elect and former City Councilor Dan was asked to comment about the city council memorial. Lewis condemned it and said fixing our crime issues will all come down to “leadership” and he had this to say:

“We have more money than we’ve ever had before so it’s not about revenue. … It’s about good leadership and making good choices. We need to support our police officers.”

https://www.kob.com/albuquerque-news/albuquerque-city-council-recommits-to-end-crime-drivers/6290668/?cat=500

Simply put, it’s never been about the money. It’s not about supporting our police. It has everything to do with holding APD sworn police accountable for failing to do their jobs to keep the city safe and its citizens safe.

COMMENTARY AND ANALYSIS

Republican operatives are rationalizing that moderate democrat City Councilor Louis Sanchez will identify more with conservative Republicans, has very little in common with progressive democrats who did not support him and that he owes Mayor Tim Keller absolutely nothing.

If the City Council remains a 5-4 Democratic Majority, the biggest test for Democrat City Councilor Louis Sanchez will be if he votes for Republican Dan Lewis to become the new Council President when the council convenes for the first time in January, 2022. Progressive Democratic City Councilor’s Isaac Benton and Pat Davis and moderate Democrat Klarissa Pena will likely all express an interested in becoming City Council President, in which case newly elect City Councilor Louis Sanchez will be casting a vote that will likely set the entire tone for his 4 years on the city council.

BACK AT IT AGAIN WITH FAILED LEADERSHIP AND NOW REVENGE

It’s down right pathetic that Dan Lewis is already believing he is the next city council president and that he intends to aggressively question Democrat Tim Keller’s department directors, including APD management and Mayor Keller’s representatives in person to hold them “accountable”. Republican Dan Lewis is the same former city councilor and former Council President who for a full 8 years looked the other way and did absolutely nothing to hold Republican Mayor Richard Berry accountable for destroying one of the finest police departments in the country and destroying historic Route 66 with the ART Bus project. Republican Lewis never once broke rank when he voted with fellow Republican Mayor, nver voted to override a Berry veto, and now decides he needs to carry out his petty political revenge on a Democrat Mayor who has been elected twice with a landslide, including 4 years ago against Dan Lewis himslef.

Simply put, Lewis is a hypocrite. Lewis takes issue with outgoing city councilors voting for a $110 million bond package a few weeks before they leave office on January 1, 2022. Lewis did something even worse as he left the city council in 2017. Just a few weeks before leaving the City Council, Lewis voted for the ABC-Z comprehensive plan pushed by Republican Mayor Berry who was know to be the darling of the construction industry and real estate development industry and who made it a top priority before he left office on January 1, 2018. The ABC-Z comprehensive plan repealed a number of historical sector development plans making it far easier for real estate developers. The ABC-Z project rewrite was nothing more than making “gentrification” official city policy and “gutted” long standing sector development plans designed to protect neighborhoods and their character for the sake of development. The number of sector development plans went from from 250 to fewer than 20.

WHAT’S AT STAKE AND THE TARGETS OF LEWIS REVENGE

The Republican party, state and county, and Albuquerque City Councilor retread extraordinaire are no doubt champing at the bit to make progressive Democrat Mayor Tim Keller life’s miserable during his second term in an effort to end his political career and restart the political career of Dan Lewis. They know full well Keller could run for higher office which will likely be Governor. Dan Lewis is returning to the city council and no matter if the council retains a Democrat majority it will be far more hostile to Keller than in 2017 when Lewis lost to Keller in a landslide. It is now apparent that Dan Lewis will be running for Mayor in 2025 which makes him the “obstructer in chief.”

Should there be a Republican takeover of the Albuquerque City Council, you can expect any number of setbacks of progressive programs and policies promoted by Keller and see advocacy of Republican policies and programs. It is likely Dan Lewis will spear head the following once sworn in for his third term:

1. Repeal of the city’s immigration friendly policy that Republicans falsely label as sanctuary city.
2. Opposition to or perhaps repeal of the city’s minimum wage ordinance.
3. Opposition to any mandatory sick leave ordinances for the private sector.
4. Oppose enforcement by Mayor Keller of emergency health care orders for the Corona Virus Pandemic, including opposing any and all-mask mandates and opposing mandatory covid vaccinations of city employees.
5. Reduction in social service programs to help the homeless and the poor, including a scaling back of the Gateway Homeless shelter operations.
6. Advocacy of late term abortion prohibitions as was placed on the 2013 municipal ballot and which failed then.
7. Opposition to the Department of Justice mandated police reforms.
8. Oppose any and all increases in the gross receipts taxes or property taxes to fund city essential services even when deficits occur.
9. Advocate the reduction in the size of city government and eliminate new departments and programs created by Mayor Keller by denying funding for such Departments as the “Office of Equity and Inclusion” that deals with immigrant relations.
10. Advocacy of increased criminal penalties as part of the city’s legislative package and bail bond reform measures.

Should there be a Republican takeover of the city council, Democrats will have only themselves to blame given that District 7 and 9 have Democrat majorities.

On August 23, 2020, Jacob S. Blake, a 29-year-old black man, was shot and seriously injured by a white police officer in Kenosha, Wisconsin. Blake was shot in the back 4 times and the side 3 times when Blake opened the driver’s door to his girlfriend’s rented car and began to turn towards a police officer. Blake was carrying a knife and police officer said he believed he was about to be stabbed. The police shooting of Blake was followed by unrest, which included rallies, marches, property damage, arson, and clashes with police.

On August 25 , 2020, Kyle Rittenhouse, then 17 years old, from north suburban Antioch, volunteered to patrol downtown Kenosha amid the turmoil surrounding the shooting of Jacob Blake. Antiock, where Rittenhous lives, is 15.82 miles and a 30-minute drive to Kenosha. Wisconsin where he was driven by his mother. Armed with an AR-15-style rifle, Rittenhouse stationed himself in front of an empty and abandoned building to protect it from vandalism. Rittenhouse professed to be a medic and he had strapped to his waste a medical pack.

Eventually, Rittenhouse was attracted to and ventured into the unfolding protests in the streets caring his AR-15-style rifle. Dominick Black, a friend of Rittenhouse, testified he bought the AR-15 style rifle for Rittenhouse. Black has been charged and faces his own trial for buying the weapon for the then underage Rittenhouse.

RELEASED PENDING TRIAL

On November 20, 2020, Kyle Rittenhouse was released from jail after his attorneys posted $2 million bail, setting the teenager free as he awaited trial for fatally shooting two men and wounding a third during the summer protests in Kenosha. The 17-year-old’s release was funded by donations sought by his attorneys, who appealed to the political right and gun rights advocates.

THE VICTIMS

According to the charges filed and news accounts, Kyle Rittenhouse shot 3 people. All 3 of the shootings were captured on video that was played to the jury. The three shot and the circumstance were:

JOSEPH ROSENBAUM, 36.

Rosenbaum was the first person fatally shot by Rittenhouse. He claimed Rosenbaum chased him and grabbed his firearm before Rittenhouse shot him 4 times in the chest even though Rosenbaum never physically touched Rittenhouse. Rosenbaum was reportedly homeless, struggled with bipolar disorder and just that day had been released from a hospital after attempting suicide. Report said he spent years in prison for sexual contact with a minor.

ANTHONY HUBER, 26.

Huber was shot in the chest by Rittenhouse. Born in Kenosha, he died four days after his birthday according to his published obituary. Rittenhouse claims Huber had kicked him in the face and struck him in the head with a skateboard. Rittenhouse testified he shot Huber as he tried to reach for his weapon. Rittenhouse testified that prior to shooting Huber, he tripped and fell to the ground. Video shows him sitting down on the street, at which point Huber tried to take his gun before Rittenhouse shot and killed him.

GAIGE GROSSKREUTZ, 27.

Gaige Grosskreutz, 27, was the sole survivor of the shootings. Moments after Huber was killed, Rittenhouse shot Grosskreutz in the arm. Grosskreutz says he lost 90% of his bicep with graphic bloody photos of the injury shown to the jury. At trial, he admitted that he thought he was going to die. Rittenhouse said he reacted to seeing Grosskreutz handgun, which Grosskreutz explained to the court that he pulled out because he thought Rittenhouse was an active shooter.

https://www.cbsnews.com/news/kyle-rittenhouse-trial-timeline/

CHARGES FILED

There were 5 charges filed against Kyle Rittenhouse and they were:

Count 1: First-degree reckless homicide, use of a dangerous weapon
Count 2: First-degree recklessly endangering safety, use of a dangerous weapon
Count 3: First-degree intentional homicide, use of a dangerous weapon
Count 4: Attempted first-degree intentional homicide, use of a dangerous weapon
Count 5: First-degree recklessly endangering safety, use of a dangerous weapon

If convicted, Rittenhouse was facing a sentence of life in prison if found guilty on first-degree intentional homicide and the other charges each carried over 60 years behind bars.

A sixth count, possession of a dangerous weapon by a person under 18, was dismissed by the judge before closing arguments.

https://www.cbsnews.com/news/kyle-rittenhouse-trial-timeline/

JUDGES RULINGS

The actions and rulings of trial Judge Bruce Schroeder were called into question. Judge Schroeder is the longest serving Judge in the State of Wisconsin know to preside over his courtroom with a heavy hand.. Under the Code of Judicial Conduct, Judges are required to be “fair and impartial.”.

Presiding trial Judge Bruce Schroeder made rulings and did any number of things that could easily make a person believe that he had a bias against the prosecution and favored the Defendant including:

1. Judge Bruce Schroeder did not allow prosecutors to refer to those killed as “victims” of the shooting but said they could be referred to as “rioters”.

2. The Judge did not allow the prosecutors to present evidence that Rittenhouse made public appearance in January with members of the Proud Boys group, which is a right-wing militia group that embraces political violence, ruling it was not relevant to the case. Judge Schroeder said he hadn’t heard of the Proud Boys prior to the Rittenhouse case, even though they were brought up during the 2020 Presidential Trump-Biden debate and have been found actively involved with the January 6 US capital takeover with many Proud Boy members charged and still in custody. Months after the shootings, Rittenhouse was seen in a bar with members of the Proud Boys. He wore a shirt that read “Free as Fuck.”

3. Kenosha County Assistant District Attorney Thomas Binger told the court “(Rittenhouse’s) actions of coming into our community illegally after curfew with a gun at the time of a protest is entirely consistent with what the Proud Boys make it their job to do.” The Judge said the evidence was not relevant.

4. Judge Bruce Schroeder did not allow prosecutors to present evidence that Rittenhouse said two weeks before the shootings that he wished he had his gun so he could shoot criminals. Judge Schroeder ruled the circumstance of those statements by Rittenhouse “so dissimilar” to the crimes he is accused of and ruled he would not allow that evidence in the trial.

5. A total of 18 jurors were selected by the attorneys, 12 to act as the final jury and 6 selected as alternate jurors to serve to replace a seated juror should something happened. Once 18 were selected, the court allowed Rittenhouse to select the 6 alternatives by lottery where all 18 names were place in a container and the Defendant drew 6 names who served as alternates.

6. When Judge Schroeder gave jury instructions, he stopped in the middle of giving the jury instruction on “self-defense”, said it was confusing and questioned if it was in fact an accurate statement of the law. Jury instructions are standard instructions of the law already approved and required to be used by the courts.

https://www.wpr.org/jury-wont-hear-evidence-kyle-rittenhouses-proud-boys-connections.

TRIAL TESTIMONY

Prosecutors portrayed Rittenhouse as a “wannabe soldier” who had gone looking for trouble that night. They argued Rittenhouse was the one responsible for creating a dangerous situation in the first place by taking a weapon to the protests and pointing his rifle at demonstrators.

In a dramatic move usually never recommended by defense lawyers to clients charged with murder, Rittenhouse took the stand and waived his constitutional right to remain silent in order to give his side of the events of that evening. Rittenhouse testified that he went Kenosha to provide protection for local businesses, provide first aid and admitted that he falsely claimed to be a certified emergency medical technician (EMT) on the night of the shooting. Rittenhouse testified: “I didn’t do anything wrong. I defended myself.”

Rittenhouse testified he went to the scene of the unrest to defend other people’s property. He testified he was fearful for his life and acted in self-defense when all 3 men individually and separately assaulted him in 3 separate incidents as he was being chased by them.

Breaking down at one point exhibiting great emotion but with no tears, Rittenhouse told the jury he opened fire after Rosenbaum chased him and tried to grab his gun and saying he was afraid his firearm was going to be taken away from him and used to kill him. Huber was killed after hitting Rittenhouse in the head and neck with a skateboard.

Grosskreutz was shot after approaching Rittenhouse with a pistol in his hand. Grosskreutz said despite being armed himself, he had his hands raised as he closed in on Rittenhouse and testified he did not intend to shoot Rittenhouse. Prosecutor Thomas Binger asked Grosskreutz why he didn’t shoot first and he responded:

“That’s not the kind of person that I am. That’s not why I was out there. … It’s not who I am. And definitely not somebody I would want to become.”

During cross-examination, Rittenhouse defense attorney Corey Chirafisi asked Grosskreutz:

“It wasn’t until you pointed your gun at him, advanced on him … that he fired, right?”

Grosskreutz replied: “Correct.”

The defense presented a photo showing Grosskreutz pointing the gun at Rittenhouse, who was on the ground with his rifle pointed up at Grosskreutz. Under follow-up questioning from the prosecutor, he said he did not intend to point his weapon at Rittenhouse.

With respect to Joseph Rosenbaum, he was described by witnesses as “hyperaggressive” and the witnesses said that he dared others to shoot him and threatened to kill Rittenhouse earlier that night. Other witnesses said he acted “belligerently” but did not appear to pose a serious threat.

A videographer testified Rosenbaum lunged for the rifle just before he was shot, and a pathologist said his injuries appeared to indicate his hand was over the barrel. Also, Rosenbaum’s fiancée disclosed that he was on medication for bipolar disorder and depression. Rittenhouse’s lawyers labelled Rosenbaum a “crazy person.”

https://www.abqjournal.com/2447472/kyle-rittenhouse-cleared-of-all-charges-in-kenosha-shootings.html

Prosecutors played a drone video showing the shooting Joseph Rosenbaum at close range after Rosenbaum had followed Rittenhouse in a parking lot where he ventured between parked cars . The footage depicted the clearest image of the shooting.

A few of the prosecutors witnesses were more helpful to the defense than the prosecution. Martin Howard, a Kenosha police detective, testified that Rittenhouse shouted “Friendly! Friendly! Friendly!” as he was being chased by Rosenbaum, and agreed with the defense’s characterization that their confrontation appeared to look like “the classic ambush.”

Each of the 3 shooting was captured on video either by bystanders or by FBI infrared video from a surveillance plane from almost 9,000 feet above the spot where Rittenhouse shot Rosenbaum.

Videos played during the trial show Rittenhouse fleeing after shooting Rosenbaum and a crowd of people pursuing him, some yelling, “Beat him up,” “Hey, he shot him,” and “Get him! Get that dude!”

https://www.cbsnews.com/news/kyle-rittenhouse-trial-timeline/

THE VERDICT

In order for a person to be found guilty or acquitted on criminal charges, a jury must reach a unanimous verdict. If just one or more jurors cannot agree with a verdict, a mistrial is declared and a new trial is required unless the prosecution decides to no retry the case.

On Friday, November 19, Kyle Rittenhouse was found not guilty on virtually all counts including first-degree intentional homicide and the four other felony charges. Rittenhouse could have been sentence to life in prison if found guilty on first-degree intentional homicide and the two other charges each carried over 60 years behind bars.

https://www.cnn.com/2021/11/19/us/kyle-rittenhouse-trial-friday/index.html

After the verdict, President Joe Biden was asked for his opinion on the verdict and he had this to say:

““I stand by what the jury has concluded. The jury system works, and we have to abide by it. … While the verdict in Kenosha will leave many Americans feeling angry and concerned, myself included, we must acknowledge that the jury has spoken. … I urge everyone to express their views peacefully, consistent with the rule of law. Violence and destruction of property have no place in our democracy.”

https://www.nbcnews.com/politics/politics-news/biden-asked-about-rittenhouse-acquittal-says-jury-system-works-n1284262

JUAN DE ONATE DE SALAZAR SCULPTURE PROTEST SIMILARITIES

On June 15, 2021, a man was shot during a protest in Old Town over the “La Jornada” (The Journey) sculpture in front of the Albuquerque Museum. The shooting occurred during a protest for the removal of the figures of Juan de Onate de Salazar in the sculpture.

During the protest, there were 5 to 6 heavily armed New Mexico Civil Guard members, some dressed in military camouflage, present trying to “protect” the sculpture. It was reported that the shooting occurred when at least 3 of the protesters attacked a person identified as Steven Baca who was walking away from them.

Steven Baca was struck in the head with a skateboard and Baca drew a gun, shot numerous times, with one shot hitting one of the protesters. The shot protester was rushed to the hospital and was listed in critical but stable condition. Baca was surrounded by the New Mexico Civil Guard at the protest.

DISTRICT ATTORNEY RAUL TORREZ REACTS

On November 19, Bernalillo County District Attorney Raúl Torrez was asked by KOB Channel 4 news to share his thoughts about the Kyle Rittenhouse acquittal verdict. Torrez had this to say:

“Although I am disappointed in the outcome of this trial, we respect the jury’s verdict and I would echo the calls we have heard around the country for those who are disappointed that they express themselves peacefully. … One of the things that is concerning to me is that individual who will look at this and think this kind of self-appointed vigilante activity is somehow acceptable. … It isn’t, and it’s something that we have to be mindful of.”

DA Torrez comments are important to note given that armed militia groups have clashed with protesters in Albuquerque. Torrez has filed a civil case against the citizens militia involved with the protest. In the summer of 2021, one protester was shot in Old Town during the Onate statue protest. The suspected shooter, Steven Baca, was surrounded by the New Mexico Civil Guard at the protest.

Steven Baca has been charged for his shooting of a protester and is awaiting trial which is anticipated to occur early next year. When Torrez was asked if he is worried the Rittenhouse case will impact the jury for the Baca case, Torrez had this to say:

“There are certain similarities and would imagine some of the lame legal arguments will be made, certainly by the defense – but there are certain factual differences that will probably lead to different rulings by the court and different evidence presented to the jury.”

https://www.kob.com/albuquerque-news/bernalillo-county-district-attorney-weighs-in-on-rittenhouse-verdict/6307505/?cat=500

On Monday, July 14, 2020, Bernalillo County District Attorney Raúl Torrez filed a civil lawsuit to stop the New Mexico Civil Guard private militia from usurping the state’s military and law enforcement authority. The lawsuit was filed against the New Mexico Civil Guard and 14 of its members who “include some individuals associated with white supremacist and neo-Confederate organizations,” according to the civil complaint. The case is still pending.

COMMENTARY AND ANALYSIS

As disappointing the Rittenhouse acquittal was to many, it must be respected. Any one that believes that the verdict validates the Second Amend Right to bear arms is a damn fool and ignorant of our criminal justice system. The verdict could have very easily gone the other way with a different judge, a different jury not to mention in a federal courtroom as opposed to a state courthouse.

What the verdict does represent is that our criminal justice system is based on “due process of law”, the “presumption of innocence until proven guilty beyond a reasonable doubt” and that it is a jury of 12 that are the fact finders empowered to make the final decision on what happened based on the evidence presented to them. In the Rittenhouse case, the jury system worked.

The Rittenhouse acquittal also represents that “self-defense” can be claimed negating a guilty verdict even though the one who asserts it voluntarily thrust themselves into an event. It is well settled law that a person cannot claim self-defense if that person instigated an attack. In other words, Prosecutors must prove intent to provoke in order to negate a “self-defense” claim. Criminal prosecutors know full well that proving state of mind, or criminal intent, to get a conviction in a courtroom setting is the single biggest obstacle to overcome. In the Rittenhouse trial, the prosecution failed to prove their case and the defense did their job.

In the Rittenhouse acquittal, the jury decided to believe the defendant and decided that Rittenhouse felt endangered to the point that he felt he needed to use deadly force to protect himself from harm. The evidence that Rittenhouse was hit in the head or neck with a skateboard by one of the victims he killed and that another was armed with a handgun was more likely than not what created reasonable doubt in the jurors’ minds and that Rittenhouse acted in self-defense. What also did not help the prosecutions case was when a Detective the prosecution called to the stand agreed with the defense that it was “the classic ambush.” with what happened to Rittenhouse by one of those he killed. The fact so much of all 3 of the shootings were captured on video also likely helped create reasonable doubt and did more to show Rittenhouse was acting in self-defense and was not the aggressor allowing his claim of self-defense to be believed by the jury.

INFAMOUS ACQUITTALS IN CRIMINAL JUSTICE SYSTEM

Throughout history many a guilty person has been acquitted for crimes they committed. If jurors have no doubt as to the defendant’s guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant’s “guilty beyond a reasonable doubt” and the defendant should be pronounced guilty. Jurors all too often do not do not believe the evidence presents or prefer to ignore the evidence presented which is their right. Jury’s are empowered to decide the credibility of a witnesses testimony and empowered to set aside the evidence and if they want. Once acquitted of the crimes charged, the prosecution cannot file the charges again and there is no right of appeal. Criminal prosecutors only get one bite at the apple so to speak.

Some of the more infamous acquittals in recent memory have included many celebrities, mothers, singers and athletes. OJ Simpson was accused of murdering his wife Nicole Brown Simpson and her friend Ronald Goldman and was acquitted by a jury. Casey Anthony killed her two-year-old and was acquitted. R&B singer R. Kelly was charged with having sex with a minor and producing child pornography and was acquitted by a jury. Actor Robert Blake who was charged with conspiracy to murder his wife and was acquitted. George Zimmerman fatally shot 17-year-old high school student Trayvon Martin on the night of February 26, 2012 and on July 13, 2013, a jury acquitted Zimmerman of second-degree murder and of manslaughter charges. In 2003 singer Michael Jackson was arrested on charges of molesting a 13 boy and the jury found the singer not guilty of all charges with many more victims coming forward over the years. None of those listed admitted to doing the crime and demanded a jury trial. OJ Simpson said he was going to find the murderer of his wife after he was acquitted.

DA TORREZ ACTS RESPONSIBLY WITH PRESS FOR ONCE

It was totally appropriate that District Attorney Raul Torrez as a prosecutor to say he was disappointed in the outcome of the Rittenhouse trial. That is and was his duty and responsibility. What was far more critical is that Torrez actually said he respected the jury’s verdict telling those who disagree with the verdict to express themselves peacefully. Torrez’s comments were a welcome relief from the political rhetoric that he is known for when he has repeatedly said that the “criminal justice system is broken” which is nothing more than political rhetoric that has gone a long way to get him elected not once but twice. He is now using it again as he runs for Attorney General, but this time in the context of the bail bond system.

RITTENHOUSE ACQUITALE UNDERSCORES SERIOUS DEFECT IN REBUTTABLE PRESUMPTION AGAINST RELEASE IN VIOLENT CRIME CASES

District Attorney Raul Torrez is considered to be the biggest proponent of bail bond reform and advocates legislation that would create a “rebuttable presumption against release” in certain cases such as first- and second-degree murder cases, voluntary manslaughter, criminal sexual penetration, certain crimes against children, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony. Rebuttable presumption of being violent would mandate a charged defendant to be held in jail until trial, which could take years, and the defendant is released when evidence reveals that the defendant did not commit the crime. It has happened in in New Mexico in high profile violent crime cases and it will happen again with rebuttable presumption of being violent.

The most recent high profile case that comes to mind is the killing of 10-year old Victoria Martens where the child was brutally raped, murdered, dismembered and her body burned in the bathtub. The victim’s mother, 35-year-old Michelle Martens, her boyfriend, 31-year-old Fabian Gonzales; and Gonzales’ cousin, 31-year-old Jessica Kelley, were arrested at the scene and charged with first-degree murder, child abuse resulting in grievous bodily harm or death, kidnapping, tampering with evidence, and contributing to the delinquency of a minor. All three suspects pled not guilty and sat in jail pending trial. After two years, Michelle Martens pled guilty to one count of child abuse resulting in death. District Attorney Raul Torrez announced dismissal of charges against two of the 3 suspects after evidence, including DNA, revealed that two of the suspects did not kill the child, they were not even present at the time and the real murderer is still to be found.

Under the rebuttable presumption doctrine, in the most violent and serious cases an accused defendant would be required to show they do not pose a threat to public and should be released pending their trial. Such a shift of burden of proof could conceivably require a defendant to take the stand during a detention hearing before their trial and waive their 5th Amendment Constitutional Right against self-incrimination.

The biggest problem with “rebuttable presumption” being advocated by DA Torrez and others is that it undermines and is an affront to the most basic constitutional right guaranteed by the United States constitution of the “presumption of innocence until proven guilty beyond a reasonable doubt”.

In our criminal justice system, both in state and federal court, it is the prosecution that has the burden of proof to present evidence to convict a person. The rebuttable presumption shifts the burden of proving dangerousness from the prosecution and require defendants accused of certain crimes to show and convince a judge that they should be released on bond or conditions of release pending their trial on the charges.

The Kyle Rittenhouse acquittal underscores the serious defect in the “rebuttable presumption against release” being advocated by Torres. It underscores that “rebuttable presumption against release” undermines and is an affront to the most basic constitutional rights guaranteed by the United States constitution of the presumption of innocence until proven guilty “beyond a reasonable doubt” and “due process of law”. With “rebuttable presumption against release”, Rittenhouse would have sat in jail until his trial. He did not because Rittenhouse was released from jail after his attorneys posted a $2 million cash bail funded by donations from guns rights advocates. With rebuttable presumption, Rittenhouse would not have been allowed to post bond.

TORRES HAS HIS OWN “MINI RITTENHOUSE” CASE

There are a number of similarities with the District Attorneys prosecution of Steven Baca who Torrez has charged for shooting a protester at the June Onate statue protests, including Baca taking a weapon to a protest, being assaulted with a skate board, and a citizen militia going to a protest to protect property and a defendant proclaiming “self-defense” for shooting someone. Torrez himself said:

“There are certain similarities and would imagine some of the lame legal arguments will be made, certainly by the defense – but there are certain factual differences that will probably lead to different rulings by the court and different evidence presented to the jury.”

Torrez enjoys the “court of public opinion” when he spouts off to the press and business organizations, but a jury trial courtroom setting requires actual proof. Under no circumstances can “self-defense” be considered arguing a “lame legal defense”, and after so many years’ experience as a prosecutor, Torrez should know that, but ostensibly he knows very little about the defense. DA Raul Torrez should also know never, ever be so confident as to how a judge will rule and never underestimate a jury nor predict what it will do once it begins and completes deliberations. It’s unknown if DA Torrez will be the lead prosecutor in the Baca trial. If Baca is acquitted because of self defense, Torrez will be forced to eat his own words perhaps with a helping portion of humility if he is required to say “I am disappointed in the outcome of this trial, but I respect the jury’s verdict.”

FINAL COMMENTARY

The criminal justice system in this country has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst. The criminal justice is only as good as the stakeholders who are responsible to make it work and succeed. The Rittenhouse case showed the prosecution failed to prove its case beyond a reasonable doubt, the defense did its job by asserting and proving self-defense and the jury did its job as the fact finder.

Ultimately, the Kyle Rittenhouse case shows that the jury system works the way it is supposed to work and the verdict must be respected.

On March 15, 2018 a hearing was held on the Federal Monitor’s 6th Compliance Report on APD’s Compliance levels with the Court Approved Settlement Agreement. The hearing was the first ever attended by any Mayor with newly elected Mayor Tim Keller appearing along with newly appointed CAO Sarita Nair, Senior Public Safety Officer James B. Lewis, new interim APD Chief Michael Geier and Deputy Chief Harold Medina and new City Attorney Esteban Aguilar, Jr. Also attending was Police Union President Shaun Willoughby.

It was revealed that newly elected Mayor Tim Keller reached out in December, 2017 after being sworn in and had a confidential meeting with the parties and the federal judge. What Keller told the presiding Judge during the March 15, 2018 hearing was simple enough to understand. Kellersaid that he campaigned on the DOJ police reforms, he was committed to fully implement all the police reforms, that his appointed APD management was also fully committed to implementation of constitutional policing practices and that he was confident in the management team he appointed to get the job done. Mayor Keller also said “he owned it” when it came to the reforms and that he would be judged by the progress APD makes or doesn’t make during his term in office.

FOUR YEARS AND 8 REPORTS LATER

Fast forward to November 12, 2021. APD is no better off now under Keller than it was on March 15, 2018. APD is still struggling to implement the reforms after 4 full years of the Keller Administration. On November 12, 2021 the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 14th “Compliance Levels of the Albuquerque Police Department and the City of Albuquerque with Requirements of the Court-Approved Settlement Agreement”. The report covers the time frame of February 1, 2021 to July 31, 2021. The link to review the entire 331 page report is here:

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-fourteenth-report-nov-2021.pdf

This blog article is an in-depth analysis of the 14th Federal Monitor’s report and highlighting the reports major findings. It also provides a reaction to the report by the Keller Administration, APD and the Police union.

BACKGROUND

On November 14, 2014, and after 6 months of negotiations, the City of Albuquerque, the Albuquerque Police Department and the United State Department of Justice (DOJ) entered into a stipulated Court Approved Settlement Agreement (CASA). The Court Approved Settlement Agreement mandates 271 police reforms, the appointment of a Federal Monitor and the filing of Independent Monitor’s reports (IMRs). There are 276 paragraphs in 10 sections within the CASA with measurable requirements that the monitor reports on.

The link to the 118-page CASA is here:

https://documents.cabq.gov/justice-department/settlement-agreement.pdf

Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Originally, APD was to have come into compliance within 4 years and the case was to be dismissed in 2020.

The 3 compliance levels can be explained as follows:

1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

COMPLIANCE LEVELS

In the November 12, 2021 IMR-14 report, the Federal Monitor reported the 3 compliance levels as follows:

Primary Compliance: 100 %; (No change)
Secondary Compliance: 82 %; (No change)
Operational Compliance: 62 % (An increase 3% points)

Regarding the compliance levels, the Federal Monitor wrote:

“These data depict an organization that is willing to ‘chip away’ at the margins, completing expeditiously tasks that improve efficiency – and even effectiveness – but steadfastly refusing to make meaningful reform to processes involving use of force, excessive use of force, the processes of police-community interactions on the street, supervision, command, and discipline.”

When one considers the vast amounts of technical assistance, coaching, and problem-solving provided to APD by the monitoring team over the past seven reporting periods, a 3 percentage point increase in overall compliance is evidence that APD is unwilling or unable to meet the requirements of the CASA related to supervision and oversight of in-field operations. The data [collected] … indicate no meaningful improvement in operational compliance at APD since IMR-8. In the monitor’s experience, this represents a question.”

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-fourteenth-report-nov-2021.pdf

HISTORY OF COMPLIANCE LEVELS

EDITOR’S NOTE: This information is prepared by the blog publisher. A review of APD’s compliance levels for the past two years for comparison is in order to get a better understanding of APD’s failure to implement the reforms and come into compliance. Operation Compliance for the last 3 years has hovered up and down from as low as 59% to the high of 66%.

It was in 2019 that APD was making the most progress in compliance with the reforms but for the next two full years thereafter there was a dramatic decline in compliance levels.

In the May 3, 2021 IMR-13 report, the Federal Monitor reported the 3 compliance levels as follows:

Primary Compliance: 100%;
Secondary Compliance: 82%, a 9% loss from previous report
Operational Compliance: 59%, a 3% loss from previous report

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-thirteenth-report-may-2021.pdf

In the November 2, 2020 IMR-12 Report, the Federal Monitor reported the 3 compliance levels as follows:

Primary Compliance: 100% No change at 100%
Secondary Compliance: 91%, A 2% loss from previous report
Operational Compliance: 64% A 2% loss from previous report

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-twelfth-report-nov-2020.pdf

In the MAY 4, 2020 IMR-11 Report, the Federal Monitor reported the 3 compliance levels as follows:

Primary Compliance: 100%;
Secondary Compliance: 93%;
Operational Compliance: 66%.

https://documents.cabq.gov/police/reports/department-of-justice/eleventh-independent-monitors-report.pdf

Comparing the November 1, 2019 IMR 10 Report to the IMR 11 Report the 3 compliance levels changed as follows:

Primary Compliance: No Change at 100%
Secondary Compliance: From 81% in IMR 10 to 93% in IMR 11, there was a 14.8% plus increase
Operational Compliance: From 64% in IMR 10 to 66% in IMR 11, a 3%. Increase

Page 4, IMR-11 Report

https://documents.cabq.gov/police/reports/department-of-justice/eleventh-independent-monitors-report.pdf

In the MAY 2, 2019 IMR-9 Report, the Federal Monitor reported the 3 compliance levels as follows:

Primary Compliance: 100%;
Secondary Compliance: 78%
Operational Compliance: 62%.

(Page 4, IMR-9 Report)

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-ninth-report-may-2019.pdf

All documents related to APD’s settlement agreement can be downloaded and reviewed at this city web site link:

https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement

HIGHLIGHTS OF 14TH INDEPENDANT MAONITOR’S REPORT

EDITOR’S NOTE: As is the case with virtually all of the 14 Federal Monitor Reports, the 330 page 14th report is verbose, very technical, difficult to read, difficult to follow and understand by the any average person of reasonable intelligence. Bolded category headlines and sentences are not part of the monitor’s report and have been added by the publisher to assist readers and to emphasize critical points and findings.

Major highlights that can be mined from the 14th Monitors Report are as follows:

TRAINING AND RECRUITING

“APD has completed the 2021 firearms training cycle, and in doing so, has moved back into operational compliance.

APD Recruitment staff continue to develop strategies and concepts for recruiting new police officers during the pandemic. At a time when interest in the profession is down significantly nationwide, APD Recruiting has managed to increase interest in APD by utilizing digital platforms to reach an applicant pool that now includes at least 43 states.”

USE OF FORCE INVESTIGATIONS BACKLOG HARSHLY CRITICISED BY MONITOR

“The most important issues affecting APD during the IMR-14 reporting period involve misconduct investigations, use of force investigations, the lack of progressive discipline when misconduct is found, and supervision and leadership.

Approximately 83% of these cases are already time-barred for discipline in accordance with the CBA, should misconduct be found. Since its discovery, this backlog has been reduced from 667 cases to 660 cases (as of October 25, 2021). At this rate of case productivity, we project that it will take APD 94 months to “clear” this second backlog, which, again, would ensure no disciplinary actions for policy violations in another 667 cases.”

INTENTIONAL BACKLOG AND NONE COMPLIANCE

“Given the amount of focus on the problems related to [the Internal Affairs Force Division] IAFD investigations in previous monitor’s reports, and the exceptional amounts of technical assistance provided by the monitoring team relating to IAFD processes, we can only conclude that this new backlog was intentional, and yet another canard designed to ensure that officers are not disciplined for known policy violations. We consider this another example of deliberate non-compliance exhibited by APD.

Officers, supervisors, managers, and leaders must be clearly “on notice” of organizational expectations, so that they understand and are willing to adhere to those expectations. Once these reformative policies have been articulated, all involved personnel (recruits, officers, supervisors, and managers) must be trained to the point that they understand and are capable of implementing these policies.”

PROGRESS IS POSSIBLE AND HOW ACCOMPLISHED

“Finally, and most importantly, once adequate policies are developed and effective training is delivered, police personnel (recruits, officers, supervisors, managers, and leaders) must be willing and able to ensure that the policies and training are followed in the field.

In addition, it is assumed that those few officers, supervisors, and managers who prove they cannot or will not comply to organizational norming processes will be identified by internal oversight processes, and will be either retrained, counseled, or “disciplined” to the point that compliance either occurs or they decide to leave the agency (or in rare instances are separated from the agency).”

DELIBERATE FAILURE BY APD MANAGEMENT

“The monitor’s oversight process for APD during the past six years has been based on this near-universal understanding of police operational management and control. After six years of implementation, APD has fallen significantly short in its ability to engender the supervisory, managerial, and leadership efforts that have been demonstrated much earlier in other law enforcement agencies monitored in this manner.

The monitor can only conclude, based on his knowledge, training and experience, that these failures at APD are deliberate.”

FEDERAL MONITOR’S SUMMARY

The Federal Monitor offered the following summation:

PROGRESS MADE

“APD has made progress this reporting period. Effective management is evident in the policy development and dissemination function. The Performance Metric Unit continues to do stellar work in planning, developing, and implementing practices to assess performance in the field.

In addition, we found no major compliance issues with [Electronic Control Weapons] ECW usage by APD during this reporting period, though we note that a new training cycle related to ECW is imminent and recommend that the training documentation be provided to the monitor for review prior to implementation.”

FORCE REVIEW BOARD

“We have noted critical potential issues with APD’s Force Review Board this reporting period, including our assessment that the number of uses of force requiring review by [the Force Review Board] FRB are likely to overload the review and assessment mechanism. This speaks as much to APD’s inability (or unwillingness) to control unnecessary or improper uses of force as it does to the efficacy of the Force Review Board itself.

As with past reporting periods, however, the central CASA requirements related to use of force continue to need a great deal of scrutiny and oversight if APD is to reach full compliance with the requirements of the CASA.”

APD TRAINING

“APD’s training and in-field practices related to crowd control, oversight, and related processes also show the need for improvement. In general, policy development, training, supervision, and oversight of force-related practices require intense scrutiny from all APD command levels.

As usual, we recommend APD develop a detailed Problems-Issues-Needs-Solutions assessment outlining their findings related to identifying, classifying, and managing use of force events involving APD personnel. The monitoring team stands ready to assist APD with this process.”

STATIC “OPERATIONAL COMPLIANCE”

“For the last seven reporting periods, operational compliance levels have been virtually static, with operational compliance levels holding at or near an average of 62 percent. Actual data points range from a low of 59 percent (IMR-8 and IMR-13) to a high of 66 percent (IMR-11).

The monitor is convinced that, at this point, failures by APD to deal with improper uses of force are related to will, not ability.”

CITY REPONDS TO REPORT

The City Attorney and APD officials do not dispute the data contained in the 14th Federal Monitor’s Report, but sharply took issue with the way it is presented in the report.

CITY ATTORNEY REACTS

City Attorney Esteban Aguilar, Jr. had this to say:

“Using … inflammatory hyperbolic language is improper editorializing in a whole lot of areas. … It improperly ascribes intent to the work of our officers, the women and men who are on the ground, trying to not only keep us safe, but trying to implement all of the provisions of constitutional community-based policing.”

“We have failures, you know, we still have … 37% operational compliance to attain, so we do have a long way to go. … But we’re not at the beginning of this process. And, I think it does a disservice to the work of the department, but also the work of the community members who have been engaged in this process, and who have been actually asking for meaningful change as well, because we’ve been walking with them step by step throughout this process.”

APD CHIEF HAROLD MEDINA REACTS

APD Chief Medina condemned the 14th Federal Monitor report saying it’s easy for someone who is “thousands of miles away” to point at APD’s problems and saying it’s intentional. Medina claims that everyone is working to comply in the best way they can and he had this to say:

“It’s a matter that we don’t know how to do stuff to their liking, or to their standards. … I think that’s been a problem from the very beginning is that instantly when APD fails, they’re tagged by the monitoring team, DOJ, as ‘Oh, APD is resisting this.’ No, you guys are all here because APD sometimes doesn’t know how to do this stuff. And that’s what we should be doing is if we’re doing it wrong, correct us more quickly, and give us the lag time to put the fixes in place.”

Medina said he agreed with parts of the report and acknowledge there is more work to done particularly with some officers in the ranks who are not doing what is required under the consent decree. Medina had this to say:

“There may be individual officers that may be deliberately not doing something they need to do. … The thing I take offense to is that leadership questions that this isn’t being supported by leadership.”

https://www.kob.com/albuquerque-news/apd-chief-disappointed-with-latest-doj-monitor-report/6306468/?cat=500

APD UNION REACTS

Shaun Willoughby, president of the Albuquerque Police Officer’s Association, had this to say about the 14th Federal Monitor’s Report:

“Dr. Ginger is pointing the finger at APD, saying that they’re doing this intentionally. That’s an absolute absurd joke. It’s a lie. … The monitor was supposed to be here in Albuquerque, helping with technical assistance. He’s doing that over Zoom and over phone calls from a different state.”

What Willoughby does not disclose is that the monitor did live here for a while and it is not just him doing all the work. The federal monitor’s reports and the data being collected is being done by a team of upwards of 10 employees who come to the city, review data and work with APD to give them guidance.

https://www.koat.com/article/albuquerque-police-department-responds-to-doj-monitor-report/38285085

APD FORWARD REACTS

APD Forward is a coalition of 27 police reform advocacy groups and community stakeholders that were instrumental in petitioning in bringing the Department of Justice to the city to investigate APD’s use of deadly force. The American Civil Liberties New Mexico chapter is part of APD Forward and acts as it main spokesperson. Barron Jones, a senior policy strategist with the ACLU, said after reading the report, it’s clear that APD still has a lot of work to do and said:

“Unfortunately, it’s more of the same [from APD]. … While we recognize the department’s efforts to improve training and that the performance metric unit is up and helping folks analyze trends we believe that the crux of the reform lies in the department’s ability to address bad behavior, or out of policy violations. That doesn’t seem to be happening yet during another monitor report.

“It just sort of boils down to are they completing those use of force investigations in a timely manner, in a way that [APD] … leadership can take corrective action and address behavior before it gets out of hand. You know, the department can make all the changes in the world, but if they can’t get that component right, then the reform process is falling flat. ”

Jones said that it is not clear what APD Forward will do in response to the 14th report filed.

Links to quoted source material are here:

https://www.koat.com/article/albuquerque-police-department-responds-to-doj-monitor-report/38285085

https://www.abqjournal.com/2446751/monitor-blasts-apds-worsening-use-of-force-backlog.html

COMMENTARY AND ANALYSIS

The City Attorney, Chief Medina and police union President Ghostbuster’s “Slimer Shaun” Willoughby did not dispute the data contained in the 14th Federal Monitor’s Report, yet they slamed the monitor’s report calling his conclusions “inflammatory hyperbolic language”, “improper editorializing” an “absolute joke” and the Chief admitting that “sometimes APD doesn’t know how to do this stuff”.

MEDINA PART OF THE PROBLEM

APD Chief Harold Medina once again is an embarrassment as he exhibits his ignorance and shows he is way over his head when it comes to the DOJ reforms when he says:

“It’s a matter that we don’t know how to do stuff to their liking, or to their standards. … I think that’s been a problem from the very beginning is that instantly when APD fails, they’re tagged by the monitoring team, DOJ, as ‘Oh, APD is resisting this.’ No, you guys are all here because APD sometimes doesn’t know how to do this stuff.”

All that “stuff” and the DOJ standards Medina is talking about are constitutional policing practices that prevent APD from using excessive use of force and deadly force that created the “culture of aggression” found by the Department of Justice. It was a culture of aggression that Medina was aware of, contributed to and failed to take any action to stop.

Simply put, Medina was and still is a big part of the problem as reflected by his sure incompetence over the last 4 years working for Mayor Tim Keller first as APD Deputy Chief in charge of field services then as first Deputy Chief before he orchestrated Chief Geier’s termination and was appointed by Keller as permanent APD Chief.

“SLIMER SHAUN” WILLOUGHBY EMBODIES THE “ABSOLUTE ABSURD JOKE” AND IS THE LIAR

Ghostbuster’s “Slimer Shaun” Willoughby, president of the Albuquerque Police Officer’s Association, is the one who is the “absolute absurd joke” and who is lying when it comes to saying the monitor gave no “technical assistance” and slighted the monitor’s reliance on “zoom” technology and not living in the city. The blunt truth is that the Federal Monitor has no management, nor control over APD. It is APD management, including the police union membership of Sergeants and Lieutenants, that are responsible to implement the reforms, not the monitor.

During the past 7 years, Shaun Willoughby and the police union members he represents have done everything they can to undercut the police reforms brought on by the Department of Justice (DOJ) investigation that found a “culture of aggression” and repeated use of deadly force and excessive use of force. The Federal Court Appointed Monitor some time ago labeled the union interference with the reforms as the “County Casa Effect”. The Federal monitor defined the Counter Casa Effect as a group of “high-ranking police officers who are Sergeants and lieutenants, who go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy.”

The federal monitor has said that APD management “uses excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. “ The monitor has said “sergeants and mid-level managers lieutenants routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.

Federal monitor Ginger has said:

“the 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 [mandated by the union contract] for discipline cannot be met. … Supervision, which includes Lieutenants and Sergeants in the union, need to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”

POLICE UNION PUBLIC RELATONS CAMPAIGN TO DISCREDIT REFORMS

On April 27, 2021, it was widely reported that the Albuquerque Police Officers Association (APOA) launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing police officers from doing their jobs and combating crime.

APOA Police Union President Shaun Willoughby described the need for the public relations campaign this way:

“You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both. We think it’s time that our city leaders hear from the public that crime matters more because it does. … They want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight. … This conversation of reform needs to come back to common sense.”

EXPECT ANOTHER 4 MORE YEARS OF NONE COMPLIANCE

After a full 4 years under Mayor Tim Keller, its likely APD will continue with the same ploy of not accepting responsibility for their continued failure to implement the reforms.

The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. That is exactly what is happening in Albuquerque, and will continue to do so unless the Federal Court puts the brakes on it. The single most remarkable understatement made during a December 4 status conference hearing was made by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew when he said:

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

It’s more likely than not APD management, the union and the rank and file will continue with their efforts of “noncompliance” and obstruction tactics. Where there is a will to obstruct the CASA reforms, APD management and the Police Union always find a way. The City and the DOJ have failed to learn that lesson after 7 years and millions spent on the reform effort. The Federal Monitoring Team after 7 years know without any doubt what needs to be done with use of force investigation and knows where things are lacking. The 300 plus page audits covering each time the 271 reforms and the Monitor always have the same old refrain “it’s not my job” to manage does not cut it.

A MAYOR THAT HAS “FAILED TO OWN” IT AS PROMISESD

Returning to a time of deadly use of force, excessive use of force and a “culture of aggression” by APD is not an option. Tim Keller has been a failure, despite his pronouncement that he “owned it”, with his efforts to implement the reforms. With the release of the 14th Federal Monitor’s report, the always publicity seeking news hound Keller was nowhere to be found to make comment on the report content now that he has another 4 years. Instead, Keller allows his City Attorney and APD Chief to do the dirty work for him to criticize the 14th report.

Now that Mayor Tim Keller has been elected to a second 4-year term, APD management, the police union, including Sergeants and Lieutenants who are allowed to be in the police union, will continue to be openly critical of the Federal Monitor. They will resist the police reforms with the ultimate goal of having the case dismissed.

Given Keller’s own leadership failure and reluctance to hold his appointed APD command staff accountable for their failures, the Department of Justice should quickly move and ask for a takeover of APD with a court appointed receiver to get done what they want done and what needs to be done to achieve constitutional policing practices.

ENOUGH IS ENOUGH

Enough wasting time, enough wasting millions with very little to show for, enough hoping things will get better allowing APD to implement the reforms for compliance. It is not at all likely that after 7 years and millions spent and another 4 more years of Mayor Keller’s failed leadership APD is going to get any better when it comes to APD police reform.

The DOJ needs to be ordered to take over APD with an appointed receiver who will be aggressive and get the job done.

NEWS UPDATE

https://www.abqjournal.com/2451028/ginger-vs-apd-2.html

The December 7 runoff election in City Council District 9 is between Democrat ROB GRILLEY, 37, running against Republican RENEE GROUT, 60. District 9 is currently represented by Don Harris, a four-term Republican who has represented the district since 2005 and has decided not to run for a 5th term. District 7 is east Albuquerque from Menaul and Eubank, south to Kirtland Air Force base, and east of Tramway. The District includes the 4 Hills Country Club area. www.PeteDinelli.com invited ROB GRILLEY to submit a guest column as an endorsement for distribution on his behalf.

ABOUT ROB GRILLEY

Rob and his husband Matthew Allen live in the Volterra community of Juan Tabo Hills with their two dogs, Duncan and Gurney. Matt works as a scientist at Sandia National Laboratory and Duncan and Gurney work hard taking their owners on long walks and hikes.

Rob grew up in Connecticut in a family that taught him the value of service from a young age. His father is a disabled Vietnam veteran and a former police officer and small business owner. His mother worked full-time in addition to raising him and his two sisters, as well as being involved in community volunteer work.

After working in the technology field in the lead up to the 2008 financial crash, Rob shifted focus to career paths that gave back to the community; working as a community center programming director and for the board of education in Connecticut. Then, upon coming to New Mexico, working in early childhood education learning centers and volunteering with non-profit organizations.

Working with the Common Bond New Mexico Foundation, first as a volunteer and ultimately as President of the organization, Rob saw first-hand not only the challenges and needs facing the young people of our community but the struggles of their families as well. Through his time with Common Bond NM he has worked with Albuquerque city services, state services, and other local non-profit organizations to help youth and families struggling with food insecurity, housing insecurity, access to healthcare and other basic services.

Most recently, in an effort to serve more people more effectively, Rob went back to school and in the middle of the 2020 pandemic graduated UNM at the age of 36. Following his graduation, he immediately put his degree to use, working on the campaign of a then-candidate for his state house district, succeeding in helping her election, and then continuing on to Santa Fe and working for the state legislature.

ROB GRILLEY IN HIS OWN WORDS

CRIME AND PUBLIC SAFETY

“Reducing crime in our city and implementing law-enforcement reform are interconnected and significant challenges that weigh heavily on the people of Albuquerque. One of the first steps to reduce crime is to rebuild trust and open communication between law enforcement and the people who live here.

Community policing isn’t just a political catchphrase, it is the basic ideal that we should always strive for. The brave men and women who serve on our police force are an integral part of our community. If elected I will push for measures, tools, and resources to help law enforcement fight and address crime. I will work tirelessly to help facilitate a strong, working, trust-based relationship between law enforcement and the people they serve.”

ECONOMIC REDEVELOPMENT PLAN

“I look around District 9 and I see hard working people losing their jobs and businesses failing from no fault of their own. We need to ensure that they aren’t left behind on our road to recovery.

As the largest metropolitan center in the state of New Mexico, Albuquerque is a fantastic place to start or own a business. We need city representatives that understand how much we rely on the success of our businesses and are committed to ensure our district remains a strong commercial sector for the city.”

HOMELESSNESS CRISIS

“We need a systemic response to this systemic problem.

These statistics are dire but the solution is not complicated, it simply requires work to implement. We need to collectively acknowledge a truth that we already know: Providing a meal, or a voucher to spend a night at a hotel does NOT give a home to the homeless, work to the unemployed, or personal security to someone with nothing. By implementing a system that could literally use existing city government infrastructure, we can work to change outcomes; transition the homeless back into homes by connecting them with steady employment and restoring their personal security and independence.”

DINELLI COMMENTARY AND ANALYSIS

The December 7 runoff ballot for District 9 consists solely the listing of two names, and nothing else is on the ballot. It is expected that the voter turnout will be dramatically lower. To complicate things is that the city council races are nonpartisan by state law and therefore party affiliation will not be delineated on the ballot. It is common knowledge amongst political insiders that Republican Renee Grout is a very right-wing Republican Trump supporter.

ROB GRILLEY has no problem at all identifying himself as a Democrat. RENEE GROUTR on the other hand avoids talking about her Republican party affiliation as she uses the old misleading Republican ploy of not identifying her party affiliation and asks people to vote for her saying that municipal elections are “non-partisan and you should vote for the person and not the party” all the while relying on the State and County Republican Party and major Republican donors who want to flip the city council Republican.

Republican Renee Grout’s run off election is being managed by Mc Cleskey Media, the political consulting firm owned by long time Republican political operative Jay McClesky known for his “slash and burn” campaign style to smear Democrats and anyone considered progressive. McClusky managed the two successful elections of Republican Mayor Richard Berry and former two term Governor “She who must not be named” and influenced and made recommendations to fill high paying Government jobs to Republican Operatives. Mc Cleskey Media has successfully managed city council races now and in the past.

Republican Renee Grout has a distinct advantage over Democrat Rob Grilley because Grout is relying on two Republican measured finance committees including Healthy Economies Lead to Progress, the measured Finance Committee established to promote and support Republicans. Healthy Economies Lead to Progress filed its Runoff Finance statement for the time period of October 30 to November 5 reporting it has a closing balance of $87,864.62 for the reporting period it can use for the City Council runoff election.

ROB GRILLEY has a firm grasp of the problems having an impact on District 9, but also the 3 major problems affecting the city.

If you are a registered voter in City Council District 9, you are urged to vote and support Rob Grilley. He knows the district, he knows the issues and will have a positive impact on the city council.

Links to related blog articles are here:

Runoff City Council Candidates Abandon Public Finance To Rely On Private Finance Donations; Follow The Republican Money; Links to Donate To Democrats

Der Führer Trump Republican Party Crawls Out Of Woodwork To Try And Flip ABQ City Council; Democrats Waking Up To A New Reality; What To Expect If Republicans Succeed On December 7