On October 7, Second Judicial District Court Judge Elaine P. Lujan ruled to outlaw the New Mexico Civil Guard from publicly acting as a military unit without authorization or assuming the role of law enforcement by using organized force at public protests or gatherings. Judge Lujan also ruled to ban such activity by the group’s directors, officers, agents, employees, members and any of their successor organizations and members. Judge Elaine Lujan ruled the New Mexico Civil Guard broke the law with their actions during a protest in 2020 and must pay a fine. Lujan’s ruling specifies the Civil Guard can no longer publicly organize and operate as a military unit. The group must also pay $8,340 to District Attorney Raúl Torrez’s office for the legal fees involved in a fight over getting court documents.
The lawsuit stems from the June 15, 2020 Old Town protest over the controversial statue of Spanish conquistador Juan de Oñate. Dressed in camouflage attire and sporting assault rifles and other military-style gear, members of the New Mexico Civil Guard showed up at the Old Town protest on June 15, 2020. They argued their purpose was to protect public property. One man not a member of the group was ultimately arrested for aggravated battery in connection with a protester who was shot and injured. Though no one from the group was arrested on criminal charges, Torrez went to court to seek a civil permanent injunction against the New Mexico Civil Guard in July 2020.
Judge Lujan granted a motion for a permanent injunction filed by Bernalillo County District Attorney Raúl Torrez in a lawsuit he filed July 14, 2020 alleging members of the New Mexico Civil Guard violated state law by exercising or attempting to exercise the functions of a peace officer without authority. Torrez alleged that the New Mexico Civil Guard organized and operated as a military unit without having been called to military service by the governor as required by law. The governor has exclusive authority under the Constitution to call on the militia to keep the public peace.
In 2021, the state court rejected the militia group’s arguments that the District Attorney’s request for injunctive relief infringed on the group’s First Amendment right to free speech and association and its Second Amendment right to bear arms. Judge Lujan’s latest decision to grant the injunction requested effectively ends the case.
In her latest ruling, the judge also found the group violated a court order requiring they furnish someone from the group for a deposition. At a deposition earlier this year, Bruce Leroy Spangler Provance, one of the founders of the group, which had more than 150 members at one time, admitted to destroying all records of the group and pouring bleach on his laptop and burning it. Dressed in what appeared to be Civil War attire, Provance turned over a piece of a paperbag to attorney Baker that had a drawing of a devil in flames and a crude sexual drawing involving a figure labeled, “Your Mom.” Provance told Baker the drawings were intended “to make me smile while I had to look at you.” Then he abruptly left the deposition.
At the deposition, Bruce Leroy Spangler Provance, one of the founders of the group, which had more than 150 members at one time, admitted to destroying all records of the group and pouring bleach on his laptop and burning it. Dressed in Civil War attire, Provance turned over a piece of a paperbag to attorney Baker that had a drawing of a devil in flames and a crude sexual drawing involving a figure labeled “Your Mom.” Provance told Baker the drawings were intended “to make me smile while I had to look at you.” Then he got up and abruptly left the deposition. In her October 7 ruling granting the permanent injunction, Judge Lujan wrote:
“The circumstances here clearly show a flagrant, willful, bad faith, callous disregard of the Court’s order.”
The criminal defense attorney and former Supreme Court Justice Paul Kennedy, the attorney representing the militia group withdrew from the case and the group did not retain a new lawyer until after a court deadline. Torrez’s office was assisted by Albuquerque attorney Mark Baker and the Institute for Constitutional Advocacy and Protection at Georgetown University. Baker and the Institute worked for free over the past two years of litigation in the case. The ruling is considered the first of its kind in the country because it relied on the DA’s enforcement authority.
REACTION TO RULING
District Attorney Raúl Torrez had this to say of the ruling:
“The overarching message today is that in the state of New Mexico there is no right, fundamentally, to establish your own paramilitary unit or police unit without authorization from either the New Mexico constitution or the statutory framework. This is clearly a victory for the rule of law. … As individuals, they can be in public. As individuals, they can bear their arms. What they cannot do is engage in a coordinated effort to present a show of force in public that would threaten and intimidate anyone in the public”
“[Since the filing of the lawsuite] this group has not appeared in an armed coordinated fashion at any public protest. And that’s exactly the outcome that we were looking for … a very clear understanding on their part, that engaging in that behavior would lead to consequences. … [This] fundamentally represents a victory for the rule of law….
We’re trying to prevent violent extremism. … I think the lesson to any other group of individuals, regardless of their ideology and political beliefs, is they should expect the same response from this office should they engage in armed and coordinated action of the type that was undertaken by the New Mexico Civil Guard. They will simply find themselves the subject of a lawsuit, which now has the force of having a district court judge in this district stating, unequivocally, this action does not violate the First Amendment.
This action does not violate the Second Amendment and they are strictly prohibited from either assuming unlawful paramilitary [activities] or policing. … It’s important for us to state unequivocally that there is no tolerance for [this type of] behavior, regardless of your political ideology.”
Mary McCord, an attorney with the Institute for Constitutional Advocacy and Protection had this to say:
“As we continue to see more and more brazen actions taken by vigilante and private militia groups, … including the attack on the U.S. Capitol on Jan. 6, 2021, it’s all the more important to use these tools to establish that not only that this conduct is a danger to the public safety but it is also not constitutionally protected. … Bottom of Form
This is a case about conduct, not the content of any type of speech or association.”
The link to quoted news source is here:
https://www.abqjournal.com/2541198/judge-restricts-nm-civil-guard.html
https://www.usnews.com/news/best-states/new-mexico/articles/2022-10-18/judges-ruling-puts-restrictions-on-new-mexico-civil-guard
LITIGATION HISTORY
It was on July 14, 2020 that 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 “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.cnn.com/2020/07/14/us/new-mexico-militia-group-lawsuit/index.html
THE SECOND AMENDMENT TO UNITED STATE CONSTITUTION
The United States Congress needs to take another look at the language of the he Second Amendment of the United States Constitution which reads:
“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Over the years, the United State Supreme Court has expanded the Second Amendment right to right to keep and bear arms. It is referred to as the “right to bear arms” and is a right for people to possess weapons or arms for their own defense.
“In United States v. Cruikshank (1876), the U.S. Supreme Court recognized that the right to arms preexisted the Constitution and in that case and in Presser v. Illinois (1886) recognized that the Second Amendment protected the right from being infringed by Congress.
In United States v. Miller (1939), the Court again recognized that the right to arms is individually held and, citing the Tennessee case of Aymette v State, indicated that it protected the right to keep and bear arms that are “part of the ordinary military equipment” or the use of which could “contribute to the common defense.”
In its first opportunity to rule specifically on whose right the Second Amendment protects, District of Columbia v. Heller (2008), the Court ruled in the landmark case that the amendment protects an individual right “to keep and carry arms in case of confrontation,” not contingent on service in a militia. The Supreme Court also said that restrictions on the possession of firearms by felons and the mentally ill, on the carrying of arms in sensitive locations, and with respect to the conditions on the sale of firearms could be permissible under the constitution.”
https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms_in_the_United_States
CITIZEN MILITIAS DEFINED
“Private Militias”, more commonly known by the general public as “Citizen Militias”, are loosely defined as “armed military groups that are composed of private citizens and not recognized by the United State Government or state governments.” Upwards of half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias.
THE INSURRECTION THEORY OF SECOND AMENDMENT
“Legal and political scholars have argued that citizen militias are driven by what is known as the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for self-defense and for “rebellion against a tyrannical government” defined as when a government turns oppressive and private citizens have a duty to “insurrect” or take up arms against their own government.
The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951):
“[W]hatever theoretical merit there may be to the argument that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.”
Legal scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.”
https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html
In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all. In other words, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.
Links to quoted sources are here:
https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html
https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html#ixzz6RZtSrv00
ONLY CERTIFIED LAW ENFORCEMENT AUTHORIZED “TO KEEP THE PEACE”
The New Mexico statutory law is very clear as to the definition of a “peace officer”. The law is also very clear that only peace officers are authorized to maintain the peace and make arrests. The New Mexico Civil Guard are not law enforcement and have likely violated the laws with their actions that govern peace officers
It is § 30-1-12(C) (1963) of the New Mexico statutes that defines a peace officer as anyone who is elected or appointed and who is:
“vested by law with a duty to maintain public order or to make arrests for crime.”
https://law.justia.com/codes/new-mexico/2018/chapter-30/article-1/section-30-1-12/
Under §29-1-9 (2006) of the New Mexico statutes the duties, responsibilities and authority to lawfully maintain the peace are expressly reserved to peace officers. The statute provides:
“[N]o person shall assume or exercise the functions, powers, duties and privileges incident and belonging to the office of special deputy sheriff, marshal, policeman or other peace officer without first having received an appointment in writing from a person authorized by law to appoint special deputy sheriffs, marshals, policemen or other peace officers . . . .”
Section §30-27-2.1 of the New Mexico statutes also defines what a police officer is, what impersonating a police officer is and it illegal for anyone to impersonate a peace officer. The statute provides:
… [A] “peace officer” means any public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes.
Impersonating a peace officer consists of:
(1) without due authority exercising or attempting to exercise the functions of a peace officer; or
(2) pretending to be a peace officer with the intent to deceive another person.
… Whoever commits impersonating a peace officer is guilty of a misdemeanor. Upon a second or subsequent conviction, the offender is guilty of a fourth-degree felony.
NEW MEXICO LAW ENFORCMENT HEAVILY REGUALTED
Much like doctors, lawyers, and teachers, law enforcement in New Mexico is heavily regulated profession. There are minimum qualification and training requirements for all state certified law enforcement. It is the Law Enforcement Training Act that creates the law-enforcement academy to provide a planned program of basic law enforcement training and in-service law enforcement training for police officers.
The academy requires minimum training requirements for certification, and requirements for continuing training “to constantly upgrade law enforcement within the state.” (NMSA 1978, §§ 29-7-1 to – 15, passed in 1969, and amended through 2020). The statute provides for suspension and revocation of law-enforcement certification based on dishonesty or fraud, the commission of a felony, or violations of law involving moral turpitude. (§ 29-7-13,) NMSA 1978. During the 2020 legislative session, the New Mexico Legislature amended the Act to require revocation of law-enforcement certification for crimes involving the use or threatened use of force. ( NMSA 1978, § 29-7-15)
NEW MEXICO MILITARY HEAVILY REGUALTED
The New Mexico Civil Guard is not military and are not authorized under the law to use military force. The New Mexico Civil Guard is likely violating the laws that govern government militias, the National Guard and the New Mexico state defense force.
Under New Mexico statutory law, entities that are authorized to use military force on the State’s behalf are collectively known as the “militia”. It is Section 20-2-1 of the New Mexico Statues that outlines 3 distinct components of the militias:
- “Militia” means all the military forces of this state, organized and unorganized, whether active or inactive; but excludes the regularly organized police forces of the state or its political subdivisions and excludes the civil air patrol division.
- “National guard” means the New Mexico army national guard and the New Mexico air national guard. The national guard is federally recognized and has a dual state and federal character and mission. When used in Chapter 20 NMSA 1978 national guard shall refer to the national guard of New Mexico unless otherwise stated.
- “New Mexico state defense force” means that part of the militia of the state which is not federally recognized. It is exclusively a state entity. Its standing cadre is a component of the organized militia; its ranks are filled upon order of the governor from the unorganized militia. When used in Chapter 20 NMSA 1978, state defense force shall refer to the New Mexico state defense force.
https://law.justia.com/codes/new-mexico/2013/chapter-20/article-2/section-20-2-1/
Note that 20-2-1 section A makes it clear that militia does not include organized police forces of the state, counties and municipalities all which are separate political subdivisions. Note also that the New Mexico National Guard is federally recognized and can be called or ordered into active federal service ostensibly by the United States Defense Department or order of the President. The State Defense Force is “exclusively a state entity and not federally recognized as is the National Guard. The ranks of the State Defense Force can be filled by the unorganized militia only by order of the Governor. Absent activation into the State Defense Force by the Governor, any unorganized militia lacks authority to operate as a military force.
FUNCTIONS OF NM NATIONAL GUARD AND STATE DEFENSE FORCE
It is not the function of the National Guard nor the State Defense Force to exercise the powers and duties of peace officers. It is New Mexico statutes § 20-2-3, dealing with Military Affairs, that designates the Governor as only one who has the power to call out the national guard and the militia and the statute outlines those instances.
- 20-2-3 provides:
“A. The governor may, in case of insurrection, invasion, riot or breach of the peace or of imminent danger thereof or in case of other emergency, order into active service of the state the militia or any components or parts thereof that have not been called into federal service. As used in this section, “emergency” includes any man-made or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requiring the resources of the state.
B. The governor may also order any member of the national guard to active state service … for the following reasons:
(1) to protect critical infrastructure in the state from a cybersecurity threat or security vulnerability;
(2) to protect an information system owned or operated by the state from a cybersecurity threat or security vulnerability;
(3) to protect information that is stored on, processed by or transiting on an information system owned or operated by the state from a cybersecurity threat or security vulnerability; or
(4) to identify the source of a cybersecurity threat.
C. A member of the national guard called to active service pursuant to … t Subsection B … shall not have any police powers or arrest authority. … .
D. In case of any breach of the peace, tumult, riot or resistance to process of this state or imminent danger thereof, the sheriff of a county may call for aid from the governor as commander-in-chief of the national guard. If it appears to the governor that the power of the county is insufficient to enable the sheriff to preserve the peace and protect the lives and property of the peaceful residents of the county or to overcome the resistance to process of this state, the governor shall, on application of the sheriff, order out such military force as is necessary.
E. When any portion of the militia is called out for the purpose of suppressing an unlawful or riotous assembly, the commander of the troops shall cooperate with the civil officers to the fullest extent consistent with the accomplishment of the object for which the troops were called. … .
F. When any portion of the militia is ordered into active service pursuant to this section in case of an emergency, the militia may provide those resources and services necessary to avoid or minimize economic or physical harm until a situation becomes stabilized and again under local self-support and control, including the provision, on a temporary, emergency basis, for lodging, sheltering, health care, food and any transportation or shipping necessary to protect lives or public property; or for any other action necessary to protect the public health, safety and welfare.
G. … .
https://codes.findlaw.com/nm/chapter-20-military-affairs/nm-st-sect-20-2-3.html
ORGANIZED AND UNORGANIZED MILITIAS DEFINED UNDER NEW MEXICO LAW
It is §20-2-2 of the New Mexico statutes that defines “organized and unorganized militias” as follows:
“The militia is composed of the organized and the unorganized militia.
A.The organized militia is the national guard and the standing cadre of the state defense force and such parts of the unorganized militia when and as may be activated, enrolled or enlisted into the national guard or into the state defense force.
- The unorganized militia is comprised of all able-bodied male citizens of the state and all other able-bodied males who have or shall have declared their intentions to become citizens of the United States and are residents of the state who are not less than 18 or more than 45 years of age, but who shall not be more than 64 years of age if they shall have earlier served in or retired from the national guard; subject to … [specific] listed exceptions … .”
COMMENTARY AND ANALYSIS
Bernalillo County District Attorney Raul Torrez is commended and congratulated for suing the New Mexico Civil Guard and securing a permanent injunction against the New Mexico Civil Guard. Now that he has been elected New Mexico Attorney General, hw should seek to have the 2023 New Mexico legislature to outlaw citizen militias. The reality is, the one lawsuit only affects one civilian militia group in the State when there are likely far more.
Further, there is nothing that will prevent such militias from forming in the future nor prevent such citizen militias from other states to come to New Mexico. Citizen Militias are not regulated in the State of New Mexico. For these reasons the New Mexico legislature should enact a state law outlawing or regulating citizens militias in the state.
The State of New Mexico should enact legislation that defines with more particularity what a “citizen miltia” is and either ban them entirely or regulate all citizens militias. If New Mexico does not ban citizen militia’s outright, a Citizen’s Militia Registration Act could 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:
Register with the New Mexico Homeland Security Office and the New Mexico State Police.
Allow only American Citizens to be members of a citizen militia.
Require members to register their firearms with the 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.
https://nij.ojp.gov/topics/articles/what-gang-definitions
CONCLUSION
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 but vigilantism. The state can and should act to ban citizen militias or enact legislation to regulate them before someone gets seriously hurt or killed.