APD Praised In Status Hearing Over Reform Efforts; APD Reports Use Of Force Cases Are Down; Reflection The DOJ Reforms Are Working; Full Compliance Of Court Approved Settlement Expected By 2026; City Should Move To Dismiss Case Sooner Rather Than Later

Posted on January 8, 2024 by

On January 3, the Albuquerque Police Department held a press conference to release statistics that APD police officers are using less force when they make arrests even though there has been a major surge in arrests. In 2020, arrests decreased along with use-of-force investigations. Even though APD arrests are going up, use-of-force investigations have dropped by more than 40% since 2020.

The data released by APD shows that as annual arrests jumped 29%, from 9,494 in 2021 to 12,222 in 2023, officers’ use-of-force incidents decreased 30%, from 739 to 515. Since 2022, APD Police shootings have increased to record highs. APD officers have shot, or shot at, 32 people, with at least 16 being fatal. The majority of the shootings have been found to have complied with APD use of force policy.

APD spokesman Gilbert Gallegos said of the 515 cases in which police used force on someone in 2023, 419 have been investigated fully. Of those, he said, 13 cases were found to be out of policy. Gallegos said across all out-of-policy cases in 2023, 17 officers were disciplined and 7 were given written reprimands with 156 hours of suspension imposed in discipline action.

CHIEF MEDINA PROCLAIMS APD CULTURE HAS CHANGED

APD Chief Harold Medina for his part pointed out that police shootings made up less than 3% of all uses of force in 2023. Medina also said at least 12 of the people shot by officers were armed, and several fired a gun, injuring two officers in separate incidents. Medina said this:

“We are seeing more armed encounters with individuals, and these individuals are not afraid to use their firearm.”

Medina said the data released, in addition to an evolution in officers’ actions during police shootings, was proof of the culture within APD has changed. On a case-by-case basis, lapel video has shown officers switching to less-lethal weapons and giving people time to drop weapons before using deadly force. Medina said this:

“I am proud of the direction our officers have gone. … We’re out doing our job, taking individuals into custody and use of force still decreases. … Look at the data. … Under the intense scrutiny that we have, use of force is down 43% (since 2020). How is that not a change of culture? … How is that not the number one measure for the change of culture? Arrests are the same but overall use of force is down. … I hope that the advocacy groups look at the data and the information and truly, fairly process what they’re seeing, and not go based off emotions. … Just because one advocacy group isn’t getting what they want out of this doesn’t mean that you should drop out [of the process].”

TERMINATION OF 3 OFFICERS IN ONE CASE

APD Spokesman Gallegos said in one case APD officers Brenda Johnson, Eric Wilensky and Violeta Baca were terminated after opening fire on a man with a knife. The officers killed the suspect but also shot two bystanders in the process. A fourth officer in the shooting incident, Christian Cordova, resigned soon after the shooting. Attorney John D’Amato, who is representing the fired officers, said the officers have filed appeals in all 3 terminations.

D’Amato said there was no question there was a threat to the officers and the officers did what they were trained to do while also complying with APD’s use-of-force policies. He called the case a matter of “damned if you do and damned if you don’t.”

The terminations marked the first-time multiple officers were fired in a police shooting since the city entered into its Court-Approved Settlement Agreement (CASA) with the U.S. Department of Justice in 2014 outlining police reforms.

As the department nears full compliance with the CASA following a few turbulent years, police shootings , the majority found to have complied with policy, have increased to record highs. Since 2022, APD officers have shot, or shot at, 32 people, with at least 16 being fatal.

REVISITING THE JESUS CROSBY DEADLY USE OF FORCE CASE

Several advocacy groups, which have given APD credit for reducing the use of force and meeting CASA requirements, continue to question whether there has been a change in APD’s culture. Much of that debate has centered around controversial police shooting in 2022, when officers shot Jesus Crosby, a man in crisis wielding nail clippers. Crosby was one of a record-breaking 18 police shootings in 2022. APD Forward is a collection of nearly 20 advocacy groups who say his death was horrifying, unnecessary, and showed an “indifference to the spirit of the reform process among some of the leadership of APD.”

In th 18^th Federal Monitors Report, monitoring team described the Jesus Crosby deadly use of force case as one of the “more obvious mishandlings of organizational oversight that we have seen since the inception of the CASA. … The case is replete with issues, from the shooting itself through the handling of the case.”

Officers simultaneously fired Tasers and bullets at Crosby, who was suffering a mental health crisis and holding fingernail clippers outside APD headquarters. APD officers shot Crosby 11 times. A force investigator, civilian oversight director and one Force Review Board (FRB) member found the shooting out of policy, but an Internal Affairs Force Division commander and the rest of the FRB reversed that finding. APD modified its policies following the shooting in the hopes of expanding the use of less-lethal force in such situations.

The 18^th IME Report went so far as to questioned if Internal Affairs Force Division (IAFD) leadership or Force Review Board (FRB) members “are competent to review cases of this significance.” The report said no FRB member asked questions about the policy disagreement or about the six shots fired after Crosby was on the ground, and only one member “asked insightful questions regarding the appropriateness of deadly force.” That same member, according to the report, voted the use of force was not necessary but was outvoted by the other members.

The team noted it marked the second time the FRB has ignored “a compelling justification” for an out-of-policy ruling in a fatal shooting. The monitoring team added, “In our opinion, all parties should be concerned if any IAFD personnel believe, or were led to believe, that the use of deadly force by officers, in this case, was appropriate.”

The report noted that the FRB has excelled in recent years due to 3 “specific deputy chiefs,” one of whom has retired while the other two were not at the FRB meeting. According to the report:

“We have commented in the past that reforms cannot exist as a result of specific people, and instead have to be woven into the fabric of APD’s culture.”

Referencing the November 2022 shooting of Jesus Crosby, the Federal Monitor’s report states:

“Most troubling is that in this case, the IAFD investigator and supervisor did what was required, and the deficiencies began at the Internal Affairs Force Division command level and were endorsed by the Force Review Board … We are equally concerned with the chilling effect a case like this can have on Internal Affairs Force Division investigators and supervisors who will be called to make difficult, honest, and accurate findings in the future.”

Independent Monitor James Ginger said it was the second such occurrence in a year and warned the Albuquerque Police Department of the “chilling effect” it could have on those tasked with investigating use of force incidents in the future.

Private Attorney Mark Fine, who is represents the Crosby family in a civil rights and wrongful death lawsuit, said the family thanked the monitoring team for its “good-faith assessment of the killing of Jesus and for calling out the backwardness of APD leadership’s absurd determination that the shooting was ‘within policy.’”

Fine said this:

“Since 2014, the City has known and admitted that a lack of supervisory oversight allowed a culture of aggression to develop in its ranks, which resulted in a pattern of unnecessary and deadly uses of force. …The Monitor’s report reveals that this toxic dynamic continues.”

When it comes to the Jesus Crosby case, Chief Medina for his part said Crosby was released from jail, while in crisis, and onto the streets ad APD officers had to deal with with him at 2 o’clock in the morning. Medina said this of the Crosby case:

“It’s unfortunate that the system, as a whole, failed Mr. Crosby. … One incident doesn’t create a pattern. … I hope that the advocacy groups look at the data and the information and truly, fairly process what they’re seeing, and not go based off emotions. … Too many times, you only look at the endpoint, and that happens to be the Albuquerque Police Department. … I recognized a long time ago that there will be advocacy groups that do not respect the outcomes of this process. They didn’t support APD prior to this process, they were very unfairly critical of APD during several court hearings.”

According to Chief Medina, APD has learned from the Crosby shooting, making policy changes and bringing in an external monitor to oversee police shootings in the future.

APD ASSUMES POLICE USE OF FORCE CASES

It was on December 26, 2023 the Albuquerque Police Department (APD) announced that the federal Department of Justice (DOJ) and the Court Appointed Federal Monitor overseeing APD’s reform efforts agreed to transition Level 2 and 3 police officer use-of-force investigations from the External Force Investigation Team (EFIT) back to the APD Internal Affairs Force Division (IAFD).

What this means is that APD is once again primarily responsible and in control of all of APD’s use-of-force investigations of the most serious use-of-force cases involving APD police officers. This is a major step forward for a department that has been under a Court Approved Settlement Agreement with the U.S. Department of Justice since 2014 and after federal investigators found a “culture of aggression” within APD and that it had engaged in “a pattern of excessive use of force and deadly force.”

There are 3 Use of Force Classifications enumerated in the APD Use Of Force Policies:

Level 1 is force that is likely to cause only transitory pain, disorientation, or discomfort during its application as a means of gaining compliance. This includes techniques which are not reasonably expected to cause injury, do not result in actual injury, and are not likely to result in a complaint of injury (i.e., pain compliance techniques and resisted handcuffing). Pointing a firearm, beanbag shotgun, or 40-millimeter launcher at a subject, or using an Electronic Control Weapon (ECW) to “paint” a subject with the laser sight, as a show of force are reportable as Level 1 force. Level 1 force does not include interaction meant to guide, assist, or control a subject who is offering minimal resistance.

Level 2 is force that causes injury, could reasonably be expected to cause injury, or results in a complaint of injury. Level 2 force includes: use of an Electronic Control Weapon (ECW), including where an ECW is fired at a subject but misses; use of a beanbag shotgun or 40 millimeter launcher, including where it is fired at a subject but misses; OC Spray application; empty hand techniques (i.e., strikes, kicks, takedowns, distraction techniques, or leg sweeps); and strikes with weapons, except strikes to the head, neck, or throat, which would be considered a Level 3 use of force.

Level 3 is force that results in, or could reasonably result in, serious physical injury, hospitalization, or death. Level 3 force includes: all lethal force; critical firearms discharges; all head, neck, and throat strikes with an object; neck holds; canine bites; three or more uses of an ECW on an individual during a single interaction regardless of mode or duration or an ECW application for longer than 15 seconds, whether continuous or consecutive; four or more strikes with a baton; any Level 2 use of force, strike, blow, kick, ECW application, or similar use of force against a handcuffed subject; and uses of force resulting in a loss of consciousness.

APD PRAISED FOR REFORM EFFORTS

On Thursday January 4, a six hour status conference hearing was held by Federal Judge James Browning on Federal Court Appointed Monitor James Ginger’s 18th Federal Monitor’s report which was filed on November 8, 2023. Throughout the hearing, Department of Justice attorneys and Independent Monitor Ginger praised the successes of Albuquerque police in its reform efforts and especially for APD reducing officers’ use of force and conducting better investigations into such incidents.

The hearing came after Independent Monitor James Ginger released his 18^th Federal Monitors report that gave the city of Albuquerque its highest ratings yet over the last 9 years in the 3 compliance levels mandated by the Court Approved Settlement. The 18^th report finds that APD is only ONE percentage point from full compliance in “Operational Compliance” going from 92% to 94%. APD went down by 1% in “Secondary Compliance” going down from 100% to 99%. APD and sustained Primary Compliance at 100%.

The 18^th Federal Monitors Report covers the time period of February 1, 2023 through July 1, 2023 and reports APD’s compliance levels being as follows:

Primary Compliance 100%
Secondary Compliance 99% (Down 1%)
Operational Compliance 94%(95%is needed to be achieved and sustained for 2 years)

Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 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 2018.

The 3 compliance levels are explained as follows:

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.

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.

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.

HEARING REVISITS JESUS CROSBY CASE

Between all the praises heaped on APD during the January 4 hearing, the Jesus Crosby killing by APD kept being brought up as evidence that the “culture of aggression” within APD has not been eliminated as a central question that conflicts with the data and that APD’s Use of Force has gone down. Albuquerque Police Department Chief Harold Medina said this:

“How do you know that culture is changing? … I consistently get that question and there is no scientific method. It’s going to, unfortunately, have to be anecdotal.”

Medina emphasized APD’s commitment to meeting CASA requirements over the past several years. The department has invested millions of dollars and thousands of man-hours and has created entire divisions and rewriting policies.

Medina told the Court the “culture change” can be measured in a large decrease in uses of force even as police make more arrests, the positive words he regularly hears from the community and from surveys taken by those who call 911. In general, Medina said the 32 police shootings the department has tallied since 2022 mirrored increases seen in other cities. Locally, he pointed to a growing number of people pulling guns on APD officers.

Again, Medina called Crosby’s death “a tragedy” but laid it at the feet of a “broken criminal justice system” for letting him out of jail while he was still in crisis. He said some “good came” from the incident, such as the creation of policies geared toward using less deadly force.

Paul Killebrew, deputy chief of the DOJ’s Civil Rights Division, also addressed the Jesus Crosby case calling it “a very troubling case.” Killebrew said this:

“In this case, we don’t judge Albuquerque by its words. We don’t judge Albuquerque by its promises. We judge it by its actions. Those actions do not tell a coherent story, not right now. … And that gives a lot of us some unease. Had Albuquerque made a different determination in the Jesus Crosby shooting, the story would be more coherent, from our perspective. So the fact that it’s not a coherent story, what does that tell us? What do we need to do?”

Killebrew said they had not yet seen a pattern of shootings similar to the Crosby case and, therefore, his question was left open-ended.

Federal Judge James Browning asked another DOJ Attorney what specifically made the lethal force in the Crosby shooting within APD policy. The DOJ attorney responded that at the time the deadly force was used, it complied with APD policy. DOJ Attorney Rahn put it simple terms “The shooting itself was fine, but the whole situation could have been handled better.”

Hager, another the DOJ attorney, said they reviewed APD’s police shootings from 2023 and found that in 12 of the 14 cases a person brandished a gun, and in seven cases actually fired it. He said they saw none of the same “issues that arose” in the Crosby case but they would continue to monitor APD’s actions.

APD COULD BE IN COMPLIANCE WITHIN MONTHS BUT MUST SUSTAIN IT FOR FULL TWO YEARS BEFORE CASE CAN BE DISMISSED

During the January 4 hearing, Paul Killebrew, deputy chief of the DOJ’s Civil Rights Division, praised the APD progress in implementing the reforms noting a 43% decrease in use of force since 2020 as a “tremendous milestone” of investigators working without external guidance and the rerouting of thousands of behavioral health calls to the Albuquerque Community Safety department.

50% of the 217 CASA paragraphs are being self-monitored by APD and 30% have already been terminated after being self-monitored for some time by APD. DOJ attorney Jared Hager noted that the External Force Investigation Team (EFIT), the outside team of contracted professionals hired to investigate force and clear a case backlog of 667 cases, had left APD’s Internal Affairs Force Division investigators to handle cases on their own. He said EFIT had completed 470, or 72%, of the backlog cases and found only 5% of those out of policy. Hager said the backlog should be done by mid-May.

DOJ attorney Melody Fields said APD had “far exceeded” the CASA requirements on crisis intervention and related data collection. She said they reviewed a random sample and found that officers “showed both skill and empathy, in how they responded to people in crisis.” Fields said the crisis response has gotten better over time. She said in 2021, APD used force 312 times against those in crisis, a number that dropped to 195 in 2022.

Fields said, going forward, APD should prioritize diverting even more calls to the Albuquerque Community Safety department, which has “more room for growth.” She said ACS diverted 1,500 calls from APD per month during the monitoring period and went to 24/7 coverage in August.

Ginger’s monitoring team highlighted the “exceptional” training that was observed being done by APD instructors on new policies. They also said the Internal Affairs Force Division investigators would be “stress tested” with EFIT no longer overseeing their investigations.

Killebrew said 16 paragraphs of the CASA remained out of compliance and three revolved around deficiencies with APD and its Force Review Board, due to “mishandling” the Crosby case. Killebrew said changes have been made to the FRB and, without any further problems, APD could be in full compliance in the coming months. The other 13 remaining paragraphs are related to shortcomings with the Civilian Police Oversight Advisory Board.

Killebrew said APD will have to remain in compliance for a full two years, setting a possible end date to federal oversight in 2026. Killebrew said if APD comes into full compliance before the CPOA, the DOJ may seek an out-of-court agreement with the city to get the latter into compliance. With APD still out of compliance, the idea was “all quite theoretical at this point,” he said.

Chief Medina expressed frustration at the timeline and said this in reponse:

“My officers worked hard every single day to meet the requirements in the settlement agreement. … And today I’m being told that 2026 might be the day that this goes into compliance. This is a slap in my face for everything that I’ve helped accomplish here. … Because there’s a strong likelihood. … I will no longer be the chief who gets to sit here when the settlement agreement is completed.”

CIVILIAN POLICE OVERSIGHT ADVISORY BOARD

The majority of CASA paragraphs remaining out of compliance revolve around the Civilian Police Oversight Advisory Board, which was formed in January after the City Council abolished the previous board makeup. Since then, board positions and leadership roles had remained vacant for months, leading to dysfunction and issues with investigations.

During the January status conference hearing, Diane McDermott, CPOA interim executive director, said recent momentum should have the board fully staffed within weeks and led to the hiring of a contract compliance officer. She called the latter “the first important step” in selecting a permanent director and gaining full compliance. McDermott said they received 723 cases in 2023, 300 of which needed full investigation, a workload that required more investigators, supervisors and a case intake worker. She said those hires, and more office space, would be part of her annual budget request.

McDermott said this:

“Our hope is that the [City Council] and the administration support the agency, and not for the purpose of just compliance, but so that we can perform in a way that our target expects and deserves. … My staff and I are optimistic about where we are headed if proper staffing and budgetary decisions are made.”

LINKS TO QUOTED NEWS SOURCES ARE HERE

https://www.krqe.com/news/crime/apd-reports-fewer-use-of-force-cases-since-2020/

https://www.kob.com/new-mexico/apd-chief-claims-improvement-in-use-of-force-investigations/

https://www.koat.com/article/apd-transparency-over-use-of-force-cases/46280346

https://www.abqjournal.com/news/albuquerque-police-data-officers-arresting-more-people-using-force-less/article_78749b22-aa7e-11ee-bbf9-6bab3643e1ec.html#tncms-source=home-featured-7-block

https://www.abqjournal.com/news/doj-praised-albuquerque-police-reform-gains-as-bad-shooting-hangs-over-hearing/article_f02d3814-ac3f-11ee-bb47-0f8761e3a85c.html#tncms-source=home-featured-7-block

COMMENTARY AND ANALYSIS

On November 16, 2023, it was a full 9 years that has expired since the city entered into the CASA with the DOJ. It was originally agreed that implementation of all the settlement terms would be completed within 4 years, but because of previous delay and obstruction tactics by APD management and the police officers’ union found by the Federal Monitor as well as APD backsliding in implementing the reforms, it has taken another 5 years to get the job done.

Over the last 9 years, APD has devoted thousands of manhours and the city has spent millions of dollars on the reform process, creating and staffing entire divisions and roles and rewriting policies and procedures. More recently, APD has implemented oversight outside of the CASA requirements, implementing six-month reviews of police shootings to identify shortcomings and possible solutions.

Despite the concerns raised in the 18^thFederal Monitors Report about the citizens police oversight board, APD’s compliance with reforms has never been higher. The monitor’s 18th report shows APD has reached 100% in Primary Compliance, 99% in Secondary Compliance and 94% in Operational Compliance the highest levels ever reached in 9 years. Once 95% compliance or better is reached in all 3 of the compliance levels, APD must sustain that compliance for two years. After a full two years of compliance in the 3 compliance levels, the case can be dismissed bringing and to end the consent decree.

Given the extent of the compliance levels, the fact APD has assumed self-monitoring in at least 50% of the CASA reforms, has taken over investigation of use of force cases and the use of force has declined substantially as evidenced by the latest statistics, it can be said the purpose and intent of the Court Approved Settlement Agreement has been achieved. The city should seek to negotiate a stipulated dismissal of the case with the Department of Justice (DOJ) sooner rather than later. Should the DOJ refuse, the City Attorney should move to immediately to dismiss the case under the termination and suspension provisions of the CASA by filing a Motion to Dismiss the case and force the issue with an evidentiary hearing and let the assigned federal judge decide the issue of dismissal.

A link to a related blog article is here:

Federal Monitor Issues 18th Federal Monitors Report On APD; Primary Compliance At 100%, Secondary Compliance At 99%, Operational Compliance At 94%;Civilian Police Oversight Advisory Board Found In Crisis; Police Union President Calls Monitoring Process “A Scam”; City Should Seek Dismissal Of Case

US Supreme Court Agrees To Hear Colorado Case Kicking Trump Off Ballot Because Of His Efforts To Overturn His 2020 Election Loss To Biden; States Rights Could Be Controlling Issue; Trump Certified On New Mexico Ballot

Posted on January 6, 2024 by

Late Friday, January 5, the United Sates Supreme Court said it will decide whether former President Donald Trump can be kept off state ballot because of his efforts to overturn his 2020 election loss inserting the court once again in a presidential campaign.

National news agencies reported in part as follows:

“The justices acknowledged the need to reach a decision quickly, as voters will soon begin casting presidential primary ballots across the country. The court agreed to take up Trump’s appeal of a case from Colorado stemming from his role in the events that culminated in the Jan. 6, 2021, attack on the U.S. Capitol.

Underscoring the urgency, arguments will be held on Feb. 8, during what is normally a nearly monthlong winter break for the justices. The compressed timeframe could allow the court to produce a decision before Super Tuesday on March 5, when the largest number of delegates are up for grabs in a single day, including in Colorado.

The court will be considering for the first time the meaning and reach of a provision of the 14th Amendment barring some people who “engaged in insurrection” from holding public office. The amendment was adopted in 1868, following the Civil War. It has been so rarely used that the nation’s highest court had no previous occasion to interpret it.

Colorado’s Supreme Court, by a 4-3 vote, ruled last month that Trump should not be on the Republican primary ballot. The decision was the first time the 14th Amendment was used to bar a presidential contender from the ballot.

Trump is separately appealing to state court a ruling by Maine’s Democratic secretary of state, Shenna Bellows, that he was ineligible to appear on that state’s ballot over his role in the Capitol attack. Both the Colorado Supreme Court and the Maine secretary of state’s rulings are on hold until the appeals play out.

The high court’s decision to intervene, which both sides called for, is the most direct involvement in a presidential election since Bush v. Gore in 2000, when a conservative majority effectively decided the election for Republican George W. Bush. Only Justice Clarence Thomas remains from that court.

Three of the nine Supreme Court justices were appointed by Trump, though they have repeatedly ruled against him in 2020 election-related lawsuits, as well as his efforts to keep documents related to Jan. 6 and his tax returns from being turned over to congressional committees.

At the same time, Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh have been in the majority of conservative-driven decisions that overturned the five-decade-old constitutional right to abortion, expanded gun rights and struck down affirmative action in college admissions.

Some Democratic lawmakers have called on Thomas to step aside from the case because of his wife’s support for Trump’s effort to overturn the results of the election, which he lost to Democrat Joe Biden. Thomas is unlikely to agree, and there was every indication Friday that all the justices are participating. Thomas has recused himself from only one other case related to the 2020 election, involving former law clerk John Eastman, and so far the people trying to disqualify Trump haven’t asked him to recuse.

The 4-3 Colorado decision cites a ruling by Gorsuch when he was a federal judge in that state. That Gorsuch decision upheld Colorado’s move to strike a naturalized citizen from the state’s presidential ballot because he was born in Guyana and didn’t meet the constitutional requirements to run for office. The court found that Trump likewise doesn’t meet the qualifications due to his role in the U.S. Capitol attack on Jan. 6, 2021. That day, the Republican president had held a rally outside the White House and exhorted his supporters to “fight like hell” before they walked to the Capitol.”

Links to quoted news sources are here:

https://apnews.com/article/supreme-court-trump-insurrection-2024-election-0baac5ba0c1868e437e365af17eeab2

https://www.cbsnews.com/news/trump-colorado-case-2024-ballot-supreme-court/

THE INSURRECTION CLAUSE

More than two dozen states are seeking to keep former President Donald Trump off the 2024 ballot because of his actions surrounding the January 6 riot and relying on the insurrection clause of the United States Constitution. It is Section 3, entitled “Disqualification from Holding Office”, of the Fourteenth Amendment that is referred to as the insurrection clause. It states as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The cases in Michigan and Colorado are among the most notable. Many have been dismissed, while secretaries of states in places like New Hampshire and Oregon have said they don’t have the authority to exclude Trump from the ballots in their states.

THE COLORADO SUPREME COURT RULING

The decision from the Colorado Supreme Court finding Trump cannot hold the presidency was unprecedented and marks the first time a presidential candidate has been deemed ineligible for the White House under Section 3 known as the insurrection clause the United States Constitution. Trump is appealing the ruling and it sets up a politically charged showdown before the Supreme Court that has huge implications for the 2024 presidential election.

On December 19, the Colorado Supreme Court kicked former President Trump off the state’s Republican primary ballot under the 14th Amendment in a 4-3 ruling, making it the first state to block him from seeking the presidency because of his role in the Jan. 6, 2021, Capitol attack. The court put its ruling on hold until January 4, so Trump can first seek review from the U.S. Supreme Court. Trump’s spokesperson quickly vowed to do so, meaning Trump’s name automatically remains on the ballot until the justices in Washington resolve the appeal.

“The Colorado Supreme court affirmed he engaged in insurrection by inflaming his supporters with false claims of election fraud and directing them to the Capitol — preventing him from a second White House term under the 14th Amendment’s “insurrection clause.” The state justices determined that the office of the president is covered under the insurrection clause, which specifically lists those who previously took oaths to support the Constitution as “a member of Congress,” “officer of the United States,” “member of any State legislature” or an “executive or judicial officer of any State.”

The district court had ruled that the office of the president was not covered under the clause. “We do not reach these conclusions lightly,” the upper court wrote in its decision. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

If allowed to take effect, Colorado’s secretary of state may not list Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.

Steven Cheung, a spokesperson for Trump’s campaign, blamed the decision on the “all-Democrat appointed” court, swearing to appeal the ruling to the U.S. Supreme Court. The seven-member bench of Colorado’s Supreme Court was entirely appointed by Democratic governors; six later faced voters and won retention elections, while the seventh will do so next year.

“The Colorado Supreme Court issued a completely flawed decision tonight and we will swiftly file an appeal to the United States Supreme Court and a concurrent request for a stay of this deeply undemocratic decision,” Cheung said. “We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits.”

Norma Anderson, a petitioner and former Republican majority leader of the Colorado House and Senate, said in a statement that the plaintiffs’ win bolstered their efforts to protect the state’s elections.

“My fellow plaintiffs and I brought this case to continue to protect the right to free and fair elections enshrined in our Constitution and to ensure Colorado Republican primary voters are only voting for eligible candidates,” Anderson said. “Today’s win does just that.”

… .

The Colorado Supreme Court decision has been stayed until the U.S. Supreme Court decides whether Trump is barred by the Civil War-era provision, which prohibits those who “engaged in insurrection” from holding office.

The link to the quoted news source is here:

https://thehill.com/regulation/court-battles/4368569-trump-kicked-off-colorado-ballot-in-14th-amendment-case/

The link to read the full Colorado Supreme court ruling is here:

https://www.npr.org/2023/12/20/1220583273/trump-colorado-supreme-court-ruling#:~:text=The%20Colorado%20Supreme%20Court%20on,to%20the%20U.S.%20Supreme%20Court.

MAINE’S SECRETARY KICKS TRUMP OFF BALLOT

On December 28, Maine’s Democratic Secretary of State Shenna Bellows removed former President Donald Trump from the state’s presidential primary ballot under the Constitution’s insurrection clause, becoming the first election official to take action unilaterally as the U.S. Supreme Court is poised to decide whether Trump remains eligible to return to the White House.

Bellows found that Trump could no longer run for his prior job because his role in the Jan. 6, 2021, attack on the U.S. Capitol violated Section 3, which bans from office those who “engaged in insurrection.” Bellows made the ruling after some state residents, including a bipartisan group of former lawmakers, challenged Trump’s position on the ballot.

Bellows issued the decision after presiding over an administrative hearing earlier this month about Trump’s eligibility for office. A bipartisan group of former state lawmakers filed the challenge against Trump. In her decision, Bellows concluded that she has a legal obligation to adhere to the 14th Amendment’s insurrectionist ban and remove Trump from the primary ballot.

Bellows wrote in part in her 34-page decision:

“I do not reach this conclusion lightly. … I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section 3 of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection. … The oath I swore to uphold the Constitution comes first above all, and my duty under Maine’s election laws … is to ensure that candidates who appear on the primary ballot are qualified for the office they seek”

The Trump campaign immediately slammed the ruling. Trump campaign spokesman Steven Cheung said in a statement:

“We are witnessing, in real-time, the attempted theft of an election and the disenfranchisement of the American voter”.

The Trump campaign said it would appeal Bellows’ decision to Maine’s state courts. Bellows suspended her ruling until that court system rules on the case.

Legal experts said that Thursday’s ruling demonstrates the need for the nation’s highest court, which has never ruled on Section 3, to clarify what states can do.

Links to quoted news sources are here:

https://apnews.com/article/maine-trump-presidential-ballot-election-insurrection-081fd38ce1f20be9b8423cb2f8c66dee

https://www.cnn.com/2023/12/28/politics/trump-maine-14th-amendment-ballot/index.html

A NEW MEXICO CASE CONNECTION

Citizens for Responsibility and Ethics in Washington (CREW) is also pushing to remove Trump from State Ballots. CREW was successful in its effort to remove a New Mexico County Commissioner Couy Griffin from his post due to his participation in the January 6 attack on the U.S. Capitol.

A district judge in New Mexico barred Otero County commissioner and “Cowboys for Trump” founder Couy Griffin, citing a clause in the 14th Amendment that prohibits those who have engaged in insurrection from serving. Griffin was convicted of a misdemeanor trespass charge. The judge’s ruling was the first time in 150 years that the provision has been used to disqualify an official and the first time that a court has ruled the events of January 6 were an “insurrection.”

Griffin was arrested on January 8, 2021, on a federal misdemeanor trespassing charge related to the January 6, 2021 insurrection. Griffin was convicted of the charge on March 22 and sentenced on June 17 to 14 days’ time served, ordered to pay $500 restitution, pay a $3,000 fine, complete community service and one year of supervised release.

Following Trump’s announcement that he would make a third bid for the White House, CREW released a statement saying it would work to ensure that Trump is disqualified from ever holding office again. A statement from CREW said this:

“We warned him that should he decide to run again, we would be taking action to ensure the Constitution’s ban on insurrectionists holding office is enforced. Now we will be. Trump made a mockery of the Constitution he swore to defend, but we will see that it is defended.”

In an interview with ABC News, a CREW official said its focus now is doing whatever possible to keep Trump off the ballot. CREW Executive Vice President and Chief Counsel Donald Sherman said this:

“I will say we are focused on winning. We are not focused on getting our name in the paper … We are focused on bringing the strongest cases possible in order to win and hold the former President accountable. And we are making the strategic choices in order to effectuate that.”

Griffin has now announced that he is appealing his case to the United States Supreme Court.

TRUMP CERTIFIED TO BE ON NEW MEXICO BALLOT

Former President Donald Trump is among a slate of presidential candidates New Mexico’s major political parties certified on December 22 to appear on the state’s June 4 primary ballots amid uncertainty about whether any state can bar the former president from contention under anti-insurrection provisions of the U.S. Constitution.

Trump is among five contenders for the GOP nomination who a presidential primary nominating committee certified for New Mexico’s primary ballot. The Republican Party reserved the option to withdraw candidates from the primary until mid-February if any drop out of national contention.

For now, the certified Republican candidates include former New Jersey Gov. Chris Christie, Florida Gov. Ron DeSantis, former South Carolina Gov. Nikki Haley and businessman Vivek Ramaswamy.

https://apnews.com/article/new-mexico-prepares-presidential-primary-93dd0c2d3df57f349123fc53cc5ede93

COMMENTARTY AND ANALYSIS

Donald J. Trump is the first American President to be impeached twice and the first former president in American history to be charged with both state and federal crimes in four separate criminal indictments in 4 separate states.

The four criminal indictments will proceed through the Republican primary season, an overlap of legal and political calendars with no precedent in American politics. Fifteen states and American Samoa hold their GOP primaries on March 5, known as Super Tuesday, which is also the day after his first trial is scheduled to begin in Washington on charges that he unlawfully sought to overturn the 2020 election.

Trump is dominating the Republican field and may secure much of the support he needs by Super Tuesday, by which time almost half of delegates who select the nominee at the GOP convention will have been awarded. Even if he were to be convicted in Washington or another trial, top party leaders and many voters have indicated they would stand by Trump anyway. And Trump and his allies are pushing to dismiss and delay the trials and have worked with state parties to craft rules favorable to him.

The Republican National Convention rules do not include any provisions specific to the unprecedented scenario unfolding. Bound delegates must vote for a particular presidential candidate at the convention based on the results of the primary or caucus in their state. As in past years, every state party must bind its delegates to vote for their assigned candidates during at least the first round of voting at the national convention, with limited exceptions for a small number of delegates. A candidate wins the nomination if they clinch a majority, which is 1,215 delegates.

https://www.abqjournal.com/ap/what-if-donald-trump-is-convicted-the-2024-republican-convention-rules-dont-address-the-issue/article_df3e52da-f70e-5e71-b231-bf749eceddfb.html

Although the Colorado and Main rulings remain on hold until Trump’s appeals are resolved, enabling his name to remain on the ballot in the meantime, the US Supreme Court decision to hear the Colorado case equips the Supreme Court to provide a national resolution in advance of the general election.

Trump’s political fate now lies in the hands of the conservative-majority United State Supreme Court, which includes three Trump appointees and that has never squarely resolved the meaning of the 14th Amendment’s insurrection ban. But that may not matter anyway.

The current Supreme court conservative majority has reversed long standing cases, including a woman’s right to an abortion, arguing state’s rights are controlling. Complicating matters for the Supreme Court is that all states have laws that control requirements that must be met for a person to appear on the ballot and for that matter have processes in place to decide who can be disqualified and removed from the ballot and on what grounds.

We are about to see just how very political the United States Supreme Court has become especially if it rules that States can not decide who can be removed from the ballot.

Colorado Supreme Court Ruling Kicks Trump Off Ballot; Michigan Supreme Court Keeps Trump On Ballot; Main Secretary of State Kicks Trump Off Ballot; Analysis and Commentary: US Supreme Court Front And Center Of Trump’s Fate

Gov. MLG Proposes 10.5 Billion State Budget For 2024-2025 Fiscal Year With 9.9% Budget Increase; Legislative Finance Committee Expected To Release It’s Own Budget

Posted on January 5, 2024 by

The 2024 New Mexico legislature begins January 16. The 2024 legislative session will be a 30 short session where budgetary matters will be the primary focus. On January 4, Governor Michelle Lujan Grisham released her proposed 2024-2025 state budget that begins on July 1. She is proposing a $10.5 billion budget which is a 9.9% increase from the current fiscal year that ends on June 30.

The Governor has submitted a record breaking $10.5 billion budget where she is recommending the state capitalize on “record revenues” with $10.5 billion in recurring funds and $2.1 billion in one-time, nonrecurring cash infusions for the upcoming fiscal year budget.

Major increases in pay raises is being proposed for all state employees with even higher pay increases for law enforcement. The Governor is proposing a 3% pay raise for all state employees and teachers. State Police officers would be given a larger pay raise of 14% while corrections, probation and parole officers would get 7% pay raises. More than half a billion would be earmarked for law enforcement recruitment, pay, and equipment and support for other first responders.

The governor wants to put more than $3 billion toward healthcare initiatives to help subsidize patient care and draw more providers to the state. Hundreds of millions would also be allocated for economic development investments, roads and infrastructure, and shoring up the state’s water supply.

Lujan Grisham’s proposed budget includes provisions to keep more than a third of state revenues in reserve, in case of revenue shortfalls in the future. The New Mexico Constitution requires a balanced budget. However during the 2008 recession and an oil bust in the early 2010s, reserves proved insufficient to cover the losses.

PUBLIC EDUCATION

As usual, public education is the biggest area for funding. More than $4 billion would go toward K-12 education to expand early childhood programs, train educators and boost teacher pay. A 7% budget increase from last year is being proposed for the Department of Public Education. $4.5 billion would go to summer and after-school programs, literacy programs and a new Structured Literacy Institute, among other programs.

Spending on public education would increase by $283 million, or 6.8%, to nearly $4.5 billion. One goal is to bolster specialized literacy programs, while founding a state literacy institute. Additional funds would help extend annual instructional time at public schools across the state. Republicans in the legislative minority oppose the push to expand public school calendars.

The Lujan Grisham administration hopes to add 2,000 slots for infant and toddler childcare and expand early preschool by 1,380 slots through increased state spending, while also bolstering aid to children being raised by grandparents. Legislators have expressed frustration in recent months with the results of sustained spending increases on public education. Statewide, the share of students who can read at their grade level is 38%. Math proficiency is at 24%. The state’s high school graduation rate hovers at 76%, well below the national average of 87%.

OIL AND GAS REMAINS LARGEST REVENUE SOURCE

As usual, oil and gas revenues still dominates state revenues and is makes up to almost 40% of the expected $13.05 billion in general fund revenues for the next fiscal year.

Although state revenues are still high, Department of Finance and Administration Secretary Wayne Propst acknowledged that growth is expected to slow. Propst said this in a statement:

“We’re fully aware that growth is projected to slow in future fiscal years, but the state is in a unique position to continue to make smart investments now, while maintaining historically high reserves. … It’s also important to note that as we improve health outcomes, lift families out of poverty and bolster the state’s economy, costs for programs and services go down.”

The Governor’s proposed budget also addresses clean energy initiatives. $20 million would be made available as low-interest loans to communities for projects that reduce carbon emissions, and $30 million would head to improving electric vehicle infrastructure in the state. The Governor’s Office is also pursuing incentives for the purchase of electric vehicles or plug-in hybrids to bolster new clean cars requirements adopted by the state.

But Larry Behrens, the communications director for Power the Future, a group that advocates for energy worker interests, wanted more from the “massive” budget recommendation.

MAJOR BUDGET HIGHLIGHTS

A breakdown of what the governor is asking by category for is as follows:

Water & Natural Resources

$500 million capital appropriation from severance tax bonds for the Strategic Water Supply. Lujan Grisham announced the Strategic Water Supply program during a December trip to Dubai. It treats water for use in renewable energy production
$250 million general fund transfer to the Land of Enchantment Conservation Fund, which feeds into the Land of Enchantment Legacy Fund
$20 million to support low-interest loans to communities to implement projects that reduce carbon emissions

Housing & Homelessness

$250 million for the New Mexico Housing Trust Fund
$250 million to the New Mexico Finance Authority Opportunity Enterprise Revolving Fund to increase funding for affordable housing, including developments of low-income multi-family housing, down payment assistance for low and middle-income households, homeowner rehabilitation and weatherization programs, etc.
$40 million for homelessness initiatives to coordinate and expand homelessness services statewide

Education

$33 million to expand early pre-kindergarten by 1,380 slots
$101.2 million increase to the State Equalization Guarantee Distribution for the necessary adjustment to 180 classroom days
$58.1 million for structured literacy, including $30 million for a new Structured Literacy Institute
$43.5 million for healthy, universal school meals
3% pay increase ($96 million) for all educators

Health Care, Behavioral Health & Child Well-Being

$2.15 billion in recurring general fund for the Health Care Authority, formerly the Human Services Department
$100 million for the Rural Healthcare Delivery Fund
$87.9 million for Medicaid provider rate increases to 150% for maternal/child health, primary care, and behavioral health
$24.7 million to create a new Family Services division at the Children, Youth and Families Department

Public Safety

$35 million for corrections and law enforcement recruitment statewide
$5 million for the Governor’s Commission on Organized Crime
$35 million for the Firefighter and EMT Recruitment Fund

Economic Development & Infrastructure

$100 million to launch the New Mexico Match Fund, which will leverage federal funding for infrastructure investments, including roads, bridges, water, energy and broadband
$25 million for the Local Economic Development Act Program (LEDA)
$9.7 million for the Job Training Incentive Program (JTIP)
$5 million in total funding for the New Mexico Media Academy
$1.5 million special to the Economic Development Department to broaden New Mexico’s international market reach

GOVERNOR LUJAN GRISHAM ISSUES STATEMENT

Governor Lujan Grisham in releasing here 2024-2025 proposed budget said this:

“Because of our historic – but prudent – investments made over the last few years in New Mexico in everything from small businesses to hospitals, childcare to college, free school meals to law enforcement, the future of our state is brighter than ever. … Here’s my promise to New Mexicans today: I will continue to push for programs, services and solutions that work. Here’s my promise to New Mexicans in future years and future generations: We will continue to spend within our means, responsibly and with an eye toward accountability, always, while capitalizing on the fiscal opportunities available.”

LINKS TO QUOATED NEWS SOURCES ARE HERE:

https://www.governor.state.nm.us/2024/01/04/gov-lujan-grisham-releases-fy25-executive-budget-recommendation-recommendation-continues-bold-investments-while-maintaining-fiscal-responsibility/#:~:text=SANTA%20FE%20%E2%80%93%20Today%2C%20Gov.,will%20maintain%20reserves%20at%2034.2%25.

https://www.kob.com/new-mexico/governor-releases-budget-recommendations-for-2025-fiscal-year/

https://www.krqe.com/news/politics-government/legislature/governor-releases-recommendations-for-10-5b-budget/

https://www.koat.com/article/new-mexico-governor-government-spending-increase-proposal/46291284

https://www.abqjournal.com/news/lujan-grisham-recommends-10-5-billion-budget-for-fiscal-year/article_13f944ea-ab55-11ee-9792-f36ae2c7bdc0.html#tncms-source=home-featured-7-block

COMMENTARY AND ANALYSIS

The 30 day New Mexico legislative session begins on January 16 at noon and ends on February 15 at noon. The Legislative Finance Committee is expected to release its own proposed budget on January 5. Once the session begins, both budgets will be subject to legislative hearings in both the House and Senate. A final budget will emerge.

One thing is for certain, the governor’s proposed budget is ambitious because of the 9.9% increase she is proposing but the job of promoting her programs during the 2024 legislative session will be made much easier because of the oil boom that has propelled New Mexico’s government revenue to record highs.

The record surplus should allow the Governor to virtually fund all the education programs she wants, invest in capital projects and infrastructure but only if the legislature allows her.

Manny Crespín Guest Opinion Column: FEMA Bureaucrats Are Failing Northern New Mexico Wildfire Victims; A Letter To President Joe Biden

Posted on January 4, 2024 by

Manny Crespín Jr. is the Founder of Coalition for Fire Fund Fairness. In response to the devastating wildfires in Northern New Mexico in 2022 and 2023, the Coalition for Fire Fund Fairness (CFFF) has emerged as a dedicated alliance committed to restoring the lives of those affected by the Hermit’s Peak-Calf Canyon Fire. CFFF’s mission is to ensure full compensation for victims, addressing not only economic losses but also the profound emotional and spiritual toll inflicted by the wildfires which include non-economic damages.

The urgency of their cause stems from the belief that justice is not an option but a necessity for the people of Northern New Mexico. Beyond financial restitution, the CFFF strives to mend the mental, emotional, and spiritual well-being of the victims, recognizing the profound injustice they face. With a clear mission to bring wholeness to those impacted, the Coalition is a powerful advocate for justice, a beacon of hope, and a resolute force against the overwhelming adversity caused by the wildfires.

GUEST OPINION COLUMN

On December 31, 2023, the Albuquerque Journal published the following guest column by Mr. Crespin and he has given his authorization to publish on www.PeteDinelli.com:

HEADLINE: FEMA Bureaucrats Are Failing Northern New Mexico Wildfire Victims

“622 days. A painful reminder of the trauma inflicted by the Hermits Peak/Calf Canyon Fire.

As we enter another holiday season traditionally filled with warmth and joy, the majority of victims have not been compensated. Their hearts are burdened by prolonged suffering and mismanagement of the Hermits Peak/Calf Canyon Claims Office.

President Biden’s promise to make victims whole, and Congress’ actions in passing the Hermits Peak/Calf Canyon Fire Assistance Act, were important first steps, but the FEMA bureaucrats charged with administering the act have failed us.

At FEMA’s (recent) town hall, Director Angela R. Gladwell stated that FEMA has distributed $146 million of the $3.95 billion fund to victims. In the more than 14 months since the fund was created, Gladwell and FEMA have paid out less than 4% to victims who lost their homes and livelihoods.

Gladwell went on to state that FEMA projects it will spend approximately 7% of the $3.95 billion fund – or $276.5 million – on running the claims office. This is an outrageous waste of taxpayer money.

This waste is particularly galling because Gladwell has unilaterally decided that the fund will not pay victims for their pain and suffering, even though the act requires victims to be paid according to New Mexico law, which explicitly allows victims to recover non-economic damages. Thus, while refusing to fully compensate victims for their losses, Gladwell is wasting tens of millions of dollars that should be paid to victims.

Director Gladwell is failing to comply with the act, which requires FEMA to provide a written offer within 180 days of victims submitting claims.

The Coalition for Fire Fund Fairness has learned from victims and their attorneys that there are dozens of claimants that have not received their 180-day offer. In response, Director Gladwell provided deliberately misleading information to the public and the press, stating that 73% of claims have been paid. That is simply false.

After Gladwell made her 73% assertion, CFFF checked with our members and found that of 178 claimants who have filed paperwork through their legal counsel, only three have been considered for payment. This amounts to approximately 1.7% of claims filed by legal counsel.

Further, FEMA has provided zero documentation to show the accurate number of claims that have been paid to date. At best this claim amounts to fuzzy math, at worst it amounts to a bald-faced lie intended to trick the press into thinking the claims process is working and only adds insult to injury for the victims of the Hermits Peak/Calf Canyon Fire.

CFFF believes that our community deserves a fair and transparent process. We hope that the Biden-Harris administration and the New Mexico congressional delegation will listen to local leaders and community members and institute meaningful change by replacing the current claims office leadership with a competent administrator. This individual must have an extensive legal background and be familiar with New Mexico’s unique culture and traditions tied to our land and water. There are several current and former New Mexico judges and appellate justices who would be perfect for this role.

The holidays should be a time of healing, not a continuation of the pain that has lingered for far too long.

Manny Crespín Jr. is the founder of the Coalition for Fire Fund Fairness.”

https://www.abqjournal.com/opinion/opinion-fema-bureaucrats-are-failing-northern-nm-wildfire-victims/article_f84b775c-a4fd-11ee-868f-1b8332d28b73.html

LETTER TO PRESIDENT JOE BIDEN

On December 4, Mr. Crespin sent to President Joe Biden, U.S. Department of Homeland Security Secretary Alejandro Mayorkas and Federal Emergency Management Agency Administrator Deanne Criswell the following letter with 12 cosigners asking for assistance with the Hermit’s Peak/Calf Canyon Fire Assistance Act claims process:

December 4, 2023

The Honorable Joseph R. Biden, Jr.

President of the United States

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

The Honorable Alejandro Mayorkas

Secretary

U.S. Department of Homeland Security Washington, D.C. 20528

The Honorable Deanne Criswell

Administrator

Federal Emergency Management Agency

500 C Street S.W.

Washington, DC 20472

Dear President Biden, Secretary Mayorkas, and Administrator Criswell:

First, we want to thank you for what you have done thus far by signing the Hermit’s Peak/Calf Canyon Fire Assistance Act, visiting New Mexico during and after the fire and attempting to put the claims process into action. It has been a long and difficult recovery. While many of the impacted communities have begun to heal, the ongoing administration of the claims process has fallen short and continues to have emotional and psychological impacts on victims. Please remember that the federal government’s negligence caused the Hermit’s Peak/Calf Canyon Fire, and through acknowledging this fact we hope you will work with community leaders and victims in Mora, San Miguel, and Taos counties to institute critical reforms to the claims office and ensure victims are fully compensated for their losses (both economic and non-economic).

Unfortunately, the United States Government has a long record of making promises to New Mexicans that are never kept. (1) This history begins with The Treaty of Guadalupe Hidalgo (2) and now continues in the 21^st Century as Federal Emergency Management Agency (FEMA) officials dismiss statutory deadlines, fail to acquire the necessary personnel to investigate claims, and deliberately advise victims not to seek legal representation. To be clear, we believe the individual federal employees tasked with standing-up the Hermit’s Peak/Calf Canyon Claims Office have tried their best, and perhaps have not been given the proper guidance while interacting with the community. This only raises the serious need for immediate reforms and changes in leadership of the claim’s office.

Equally as important, we feel the current leadership of the Hermit’s Peak/Calf Canyon Claims Office does not possess the fundamental understanding of the long-documented history of land loss (3), institutional discrimination, and land mismanagement by federal agencies in New Mexico (4) that the deep wounds the Hermit’s Peak/Calf Canyon Fire has re-opened. Without this cultural and historical understanding, it is virtually impossible for the claims office to be fair, sincere, and adequate in its approach to properly administer claims. Therefore, we ask that the Biden Administration appoint an outside and objective individual to lead the claims office. This individual must have a substantial legal background, a deep understanding of New Mexico’s culture and history, and must not be a career bureaucrat or current political appointee. Below are names of individuals that the community, writ large, will accept as knowledgeable and objective to lead the claims office:

Richard Bosson, retired Justice, New Mexico Supreme Court

Judith Nakamura, retired Chief Justice, New Mexico Supreme Court
Linda Vanzi, retired Chief Judge, New Mexico Court of Appeals
Tim Garcia, retired Judge, New Mexico Court of Appeals
Alan Mallot, retired Judge, New Mexico District Court
Michael Aragon, Judge, New Mexico District Court

Finally, we recognize it is likely that the Hermit’s Peak/Calf Canyon Fire Assistance Act needs legislative fixes so the claims office can broaden its outreach and acknowledgment of the size and scope of claims. We ask that the White House and the FEMA External Affairs Office (OEA) work directly with impacted communities, local leaders, and the New Mexico Congressional Delegation to draft and pass the necessary legislative fixes to promote maximum fairness to claimants before the end of the 118^th Congress.

Land and water are traditionally and generationally important to New Mexicans, not only to sustain life, but also as a foundation of our identity and culture. This goes far beyond any economic value you can tie to our land and water resources. Land loss, whether through annexation, confiscation, systemic poverty, or negligent wildfires, constitutes a loss of the very essence of what it means to be New Mexican.

Mr. President, the commitments you made on your visit to New Mexico during the fire are desperately needed. You stated, “We [the Biden-Harris Administration] have a responsibility to help this state recover, to help the families who have been here for centuries, and the beautiful northern New Mexico villages who can’t go home and whose livelihoods have been fundamentally changed.” (5) We are hopeful that you will reaffirm your commitment to the victims of this fire by immediately addressing the concerns we have presented in this letter including the implementation of changes to the claims process, changes to claims office leadership, and seeking legislative fixes that streamline FEMA’s ability to work with impacted communities and victims.

Mr. President, the commitments you made on your visit to New Mexico during the fire are desperately needed. You stated, “We [the Biden-Harris Administration] have a responsibility to help this state recover, to help the families who have been here for centuries, and the beautiful northern New Mexico villages who can’t go home and whose livelihoods have been fundamentally changed. We are hopeful that you will reaffirm your commitment to the victims of this fire by immediately addressing the concerns we have presented in this letter including the implementation of changes to the claims process, changes to claims office leadership, and seeking legislative fixes that streamline FEMA’s ability to work with impacted communities and victims.

Sincerely,

Manny Crespín Jr.

Founder, Coalition for Fire Fund Fairness (CFFF)

Representing over 300 impacted community members in San Miguel, Mora and Taos Counties

LISTED CO SIGNERS

/s/ George A. Trujillo, County Commission Chair, District 2, County of Mora, NM

/s/ Mayor David Romero, City of Las Vegas, NM

/s/ Michael L. Montoya, City Councilor (Ward 2), City of Las Vegas, NM

/s/ David Ulibarri, City Councilor (Ward 1), City of Las Vegas, NM

/s/ Dr. Barbara A. Perea Casey, Ed.D., City Councilor (Ward 3), City of Las Vegas, NM

/s/ State Senator Michel Padilla (Dist. 14), Majority Whip

/s/ State Representative Reena Szczepanski (Dist. 47),

/s/ Majority Whip/s/ State Representative Ambrose Castellano (Dist. 70)

/s/ State Representative Harry Garcia (Dist. 69)

/s/ State Representative Joseph Sanchez (Dist. 40)

/s/ Liz Stefanics (advocating for San Miguel County victims)

Links to footnotes are here:

APD Takes Over Police Use Of Force Cases From External Force Investigations Team; Sharp Turn Around From When DOJ Threatened To Seek Contempt Of Court For APD’s Willful Failure To Investigate 667 Use Of Force Cases; Case Backlog Down To 197 Cases; City Should Move To Dismiss Case Because Of 94% Or Better In Compliance Levels

Posted on January 2, 2024 by

On December 26, in a press release, the Albuquerque Police Department (APD) announced that the federal Department of Justice (DOJ) and the Court Appointed Federal Monitor overseeing APD’s reform efforts agreed to transition Level 2 and 3 police officer use-of-force investigations from the External Force Investigation Team (EFIT) back to the APD Internal Affairs Force Division (IAFD).

What this means is that APD is once again primarily responsible and in control of all of APD’s use-of-force investigations of the most serious use-of-force cases involving APD police officers. This is a major step forward for a department that has been under a Court Approved Settlement Agreement with the U.S. Department of Justice since 2014 and after federal investigators found a “culture of aggression” within APD and that it had engaged in “a pattern of excessive use of force and deadly force.”

There are 3 Use of Force Classifications enumerated in the APD Use Of Force Policies:

EFIT CREATION AND WHY

The EFIT was created on February 26, 2021 by an agreed court order after the Federal Monitor found that APD intentionally did not investigate 667 Police Officer of Use of Force cases. A Court Order was agreed to by the City and APD after the Department of Justice made it know it was prepared to seek “Contempt of Court” for willful violation of the Court Approved Settlement Agreement (CASA) and seek sanctions against the city and APD.

The EFIT is an outside team of experienced law enforcement investigators on contract with the city that was responsible for training APD’s Internal Affairs Force Divion (IAFD) on how to properly investigate use-of-force cases. Independent Monitor James Ginger was highly critical of APD creating a backlog of 667 Use of Force Cases saying it had “failed miserably in its ability to police itself.” Another function of EFIT was to clear the backlog of cases.

18^th FEDERAL MONITOR’S REPORT

In his most recent 18^th Federal Monitor’s Report filed on November 8, 2023, Federal Monitor James Ginger completely changed his tune regarding APD’s performance and implementation of the reforms mandated by the Court-Approved Settlement Agreement (CASA) with the DOJ. According to the Federal Monitor, a crucial part of APD’s compliance gains, has come from the higher-quality use-of-force investigations by the Internal Affairs Force Division under EFIT’s guidance.

The 18^th Federal Monitors Report covers the time period of February 1, 2023 through July 1, 2023 and reports APD’s compliance levels being as follows:

Primary Compliance 100%
Secondary Compliance 99% (Down 1%)
Operational Compliance 94%(95% is needed to be achieved and sustained for 2 years)

The 3 compliance levels are explained as follows:

PRIMARY COMPLIANCE

SECONDARY COMPLIANCE

OPERATIONAL COMPLIANCE

Click to access final-imr-18.pdf

The 18^th report finds that APD is only ONE percentage point from full compliance in “Operational Compliance” going from 92% to 94%. APD went down by 1% in “Secondary Compliance” going down from 100% to 99%. APD sustained Primary Compliance at 100%.

TRANSITION OF USE OF FORCE INVESTIGATIONS FROM EFIT TO APD

EFIT was on call 24/7 and was required to respond to all call outs within one hour of notification. All Use of Force (“UOF”) investigations must be completed within 60 days with an additional 30-day supervisory review period for a total of 90 days from start to finish. EFIT was required to conduct joint investigations with APD Internal Affairs Force Division (“IAFD”) of all Level 2 and Level 3 Use of Force incidents. The joint investigations included all Tactical Deployments where Use of Force was utilized. EFIT also assisted APD with training concerning the Use Of Force. The EFIT Executive Team worked with APD IAFD to establish a detailed IA Investigative Process Narrative that governs the response protocols to any Level 2 and 3 UOF cases.

On March 21, 2022, an Amended Stipulated Order Establishing the EFIT was agreed to by the parties. The Amended Stipulated Order modifies the EFIT in two ways:

First it required the EFIT to investigate all use-of-force incidents occurring between January 1, 2020, through July 16, 2021, that APD did not investigate, in full or in part, in violation of the Court Approved Settlement Agreement (“CASA”).

Second it extended by 24 months, from May 2022 through May 2024, the period during which the City shall continue to engage EFIT to assist IAFD to investigate Level 2 and Level 3 use-of-force incidents. This ostensibly will no longer be the case.

The EFIT Executive Team worked with APD to establish a detailed Process Narrative that governs the response protocols to Level 2 and 3 Use Of Force cases. EFIT and APD continued to review this document to ensure that it is serving the interests of the assignment and has made modifications, as necessary.

Closed Use of Force cases are presented to the Force Review Board (“FRB”). All Level 3 cases, tactical deployments and 10 % of Level 2 cases are presented at FRB. Initially, EFIT had no role in the Force Review Board process other than as an observer. However, as the cases that EFIT jointly investigated with Internal Affairs Force Division were at the FRB level.

According to the most recent notice pleading filed with the Court, prior to the transfer of Use of Force Cases to APD, the EFIT, DOJ and the city developed a six-part transition plan for Internal Affairs Force Division complete investigations in a timely, thorough, and fair manner” without EFIT’s assistance. There are 14 of APD’s Internal Affairs Force Division investigators, made up of sworn personnel and civilians, were still under EFIT’s supervision when APD took over the investigation of cases. Eleven investigators had previously graduated from EFIT’s guidance to conduct investigations on their own.

IAFD’s transition plan includes a manual and orientation program for new investigators, as well as on-the-job training that pairs them with experienced IAFD personnel and replicates EFIT’s function. IAFD also created a rubric for evaluating whether investigations and case reviews follow policy and a dashboard to track cases and personnel performance.

As part of the transition of investigations back to APD, the department assigned an APD Internal Affairs Force Deputy Commander as the quality control manager “to ensure consistency amongst commanding officer reviews, replicating the EFIT Executive Team’s similar function.” According to court pleading filed, the plan outlines that EFIT will remain available to assist IAFD at APD’s request, and the department will regularly document IAFD’s ability “to train personnel and complete investigations within timelines.” APD will also send DOJ and EFIT weekly reports on IAFD’s casework and its training program for new investigators.

According to the notice pleading filed with the federal court on the transfer of investigations to APD:

“IAFD has demonstrated its capacity to complete investigations in a timely, thorough, and fair manner. IAFD has also set up systems to independently train, mentor, and oversee personnel going forward,” Returning the responsibility for Level 2 and Level 3 force investigations back to APD while EFIT continues working on the backlog also provides the Parties, the Monitor, the Court, and the public an opportunity to evaluate the efficacy of APD’s systems for investigating force, with a backstop still available if it is needed.”

PROGRESS MADE IN CLEARING BACKLOG OF CASES

It was on November 16, 2022, the External Force Investigation Team (EFIT) filed its 4^th quarterly report covering the time period of August 5, 2022 to October 27, 2022. The EFIT reported that as of November 14, 2022, the total backlog of Use of Force Cases APD failed to investigate was 667 prompting a scathing review of the Federal Monitor. The EFIT now reports it has made substantial progress in clearing the cases and so far has cleared 470 of the backlogged cases with 197 remaining to be cleared. The problem with clearing backlogged cases that are past due, if officers violated policies, they cannot be disciplined as per the union contract.

WORDS OF PRAISE WITH WORDS OF CAUTION

While Federal Monitor Ginger praised the progress made by Internal Affairs Force Division (IAFD) investigators and supervisors in his 18^th Federal Monitors report, he also raised concerns about APD’s top command staff not heeding IAFD’s findings. He noted in particular APD command staff deeming fatal police shooting as being in line with APD policy when it was not.

Dr. James Ginger in his 18^th Federal Monitor’s Report praised APD’s significant progress over the last 2 years and applauded the work of force investigators and supervisors.

During the 18^th reporting period, from February 1, 2023 through July 1, 2023, the monitor reported:

“… training processes remained strong, reflecting “best-standards” of training needs, curricula development, and delivery of CASA-congruent training programs. Importantly, during this reporting period, with the approval of the Parties and the concurrence of the monitor, APD is now self-monitoring 157 specific paragraphs. APD continues to develop the ability to independently self-monitor with review by the monitoring team.”

The monitor noted compliance findings began improving markedly during the 2021 IMR-14 reporting period and that APD continued to make gains for 5 consecutive monitoring periods. The monitor reported that the compliance surge was due to APD’s finally understanding the change process, and focused APD leadership vis a vis compliance issues.

During the 18^th reporting period, the monitor’s team reviewed 8 cases completed by the External Force Investigation Team and found each case to be “thorough, accurate, well-documented, and congruent with APD policy and national standards. This is a major milestone. The case reports comply with policy, training, and in-field performance. This is a central reform requirements of the Court Approved Settlement Agreement (CASA).”

The Federal Monitoring Team found APD’s disciplinary findings and practices continue to improve during this reporting period. However, the monitoring team found they are not yet at the 95% compliance level which is mandated for 2 years before the case can be dismissed.

FUNDAMENTAL CONCERNS ABOUT APD OVERSIGHT

A major concern was identified about the trend during IMR-17 and IMR-18 with Force Review Boards mishandling of some officer-involved shootings. The report noted it is extremely difficult for an agency to function well, absent strong oversight processes related to high-risk critical tasks, particularly when these tasks are a major reason for the existence of the CASA. The monitor identified this issue as a major problem due to the fact that one of the major reasons for the existence of the CASA was questionable APD officer-involved shootings over a protracted period.

The 18^th Federal Monitors Report raised fundamental concerns about oversight from the top management levels of APD, or those who make up the Internal Affairs Force Division (IAFD) and Force Review Board (FRB). The report said for the second time, the FRB and IAFD had disagreed with investigators, deeming fatal police shooting as being in line with APD policy when it was not.

A few nonfatal police shootings have been found out of policy in recent years but yet APDs top command staff has yet to find a fatal police shooting out of policy, meaning an officer’s actions were not “objectively reasonable, proportional, nor the minimum amount of force necessary.” The Federal Monitoring team said it identified “a grave and substantial malfeasance” in the top command staff mishandling of a fatal police shooting, erroneously ruling it justified.

The monitoring team reported the concerning trend of Internal Affairs Force Division leadership and the Force Review Board “mishandling” police shootings following a year in which the department shot or shot at a record-high 18 people, with 10 of them being killed.

The Federal court has scheduled next hearing on APD’s reform efforts and the Federal Monitor’s 18^th report for January 4.

APD REACTION TO RESUMING USE OF FORCE INVESTIGATIONS

APD officials said its Internal Affairs Force Division resuming control of use-of-force investigations marked “another key milestone” in the department’s reform effort. APD Chief Harold Medina had this to say in a statement:

“This is a major accomplishment and one of the most meaningful changes we’ve made as a department. … It is critical that we are able to conduct our own, thorough and professional use-of-force investigations. … The Albuquerque Police Department has come a long way in trust transparency and actually properly investigating uses of force and getting that information out to the public,” APD’s Chief Harold Medina said. … We now have a review of our shootings every six months to see what the current trends are and that’s something we never did before as a department. … It’s really taught us to self-reflect to see how we can make changes before it’s brought to us by the Department of Justice.”

Links to quoted news sources are here:

https://www.cabq.gov/police/news/apd-resumes-control-of-use-of-force-investigations#:~:text=APD%20agreed%20in%202021%20with,of%20force%20used%20by%20officers.

https://www.kob.com/new-mexico/apd-regains-control-of-use-of-force-investigations/

https://www.krqe.com/news/apd-retakes-over-use-of-force-investigations/

https://www.koat.com/article/apd-review-use-of-force-incidents/46238640

https://www.abqjournal.com/news/albuquerque-police-reclaims-oversight-in-investigating-use-of-force/article_bb055e4c-a699-11ee-a5ce-9f35a0766e67.html#tncms-source=home-featured-7-block

REFORMS ACHIEVED UNDER THE CASA

Now after 9 full years, the federal oversight and the CASA have produced results.

Reforms achieved under the CASA can be identified and are as follows:

New “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.
All sworn police officers have received crisis management intervention training.
APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.
The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.
Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.
“Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police also receiving the training.
APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.
APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
The Repeat Offenders Project, known as ROP, has been abolished.
Civilian Police Oversight Agency has been created, funded, fully staffed and a director was hired.
The Community Policing Counsels (CPCs) have been created in all area commands.
The Mental Health Advisory Committee has been implemented.
The External Force Investigation Team (EFIT) was created and is training the Internal Affairs Force Division on how to investigate use-of-force cases, making sure they meet deadlines and follow procedures.
Millions have been spent each year on new programs and training of new cadets and police officers on constitutional policing practices.
APD officers are routinely found using less force than they were before and well documented use of force investigations are now being produced in a timely manner.
APD has assumed the self-monitoring of at least 25% of the CASA reforms and is likely capable of assuming more.
The APD Compliance Bureau has been fully operational and staffed with many positions created dealing directly with all the reform efforts and all the duties and responsibilities that come with self-assessment.
APD has attained a 100% Primary Compliance rate, a 99% Secondary Compliance rate and a 92% Operational Compliance rate.

COMMENTARY AND ANALYSIS

It is now undeniable that APD has in fact turned the corner when it comes to investigating Polic Officer Use of Force cases. From March 21, 2021 when APD entered into a stipulated order where EFIT assumed use of force case investigations only after being threatened with contempt of court for willful failure to investigate 667 Use of Force cases until December 26, 2023, when it was announced that APD with consent of the Department of Justice will again assume responsibility, there has been a dramatic turn around and APD is finally getting the job done. The backlog of cases has gone from 667 to now 197 cases.

With the passage of time, those investigations become far more difficult, and no disciplinary action can be taken leading to the questioning if anything substantive will actually be accomplished with APD and its reform efforts other than carrying out a demand that the DOJ has made that all the cases must be resolved. Notwithstanding, significant progress has been reported.

With APD assuming self-monitoring in many areas and assuming Use of Force Investigations, and after over 9 years of implementing the mandating DOJ reforms, and millions spent on training, APD appears to have finally turned the corner on implementing the 271 mandated reforms. 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. Primary Compliance is now at 100%, Secondary Compliance is now at 99% and Operational Compliance is now 80%.

Despite the concerns raised in the 18^thFederal Monitors Report, the city’s compliance with reforms has never been higher. The monitor’s 18th report shows APD has reached 100% in Primary Compliance, 99% in Secondary Compliance and 94% in Operational Compliance the highest levels ever reached in 9 years. Once 95% compliance or better is reached in all 3 of the compliance levels, APD must sustain that compliance for two years. After a full two years of compliance in the 3 compliance levels, the case can be dismissed bringing and to end the consent decree.

Given the extent of the compliance levels, the work of the Federal Monitor is in fact winding down. The purpose and intent of the settlement has been achieved. The city should seek to negotiate a stipulated dismissal of the case with the Department of Justice (DOJ) sooner rather than later. Should the DOJ refuse, the City Attorney should move to immediately to dismiss the case under the termination and suspension provisions of the CASA by filing a Motion to Dismiss the case and force the issue with an evidentiary hearing and let the assigned federal judge decide the issue of dismissal.

The link to a related blog article is here:

Federal Monitor Issues 18th Federal Monitors Report On APD; Primary Compliance At 100%, Secondary Compliance At 99%, Operational Compliance At 94%;Civilian Police Oversight Advisory Board Found In Crisis; Police Union President Calls Monitoring Process “A Scam”; City Should Seek Dismissal Of Case

NEWS AND COMMENTARY

Monthly Archives: January 2024

APD Praised In Status Hearing Over Reform Efforts; APD Reports Use Of Force Cases Are Down; Reflection The DOJ Reforms Are Working; Full Compliance Of Court Approved Settlement Expected By 2026; City Should Move To Dismiss Case Sooner Rather Than Later

US Supreme Court Agrees To Hear Colorado Case Kicking Trump Off Ballot Because Of His Efforts To Overturn His 2020 Election Loss To Biden; States Rights Could Be Controlling Issue; Trump Certified On New Mexico Ballot

Gov. MLG Proposes 10.5 Billion State Budget For 2024-2025 Fiscal Year With 9.9% Budget Increase; Legislative Finance Committee Expected To Release It’s Own Budget

Manny Crespín Guest Opinion Column: FEMA Bureaucrats Are Failing Northern New Mexico Wildfire Victims; A Letter To President Joe Biden