On September 24, Mayor Tim Keller addressed the New Mexico chapter of the National Association of Industrial and Office Parks (NAIOP). The commercial and real estate development organization is considered  the most influential business organization in the city consisting of developers, investors and contractors with membership in excess 300 with many bidding on city contracts. NAIOP has its own political action committee, and the organization endorses candidates  for Mayor and City Council while the membership donates to candidates.

Keller started his remarks by describing what he sees on his walk to work from his West Downtown home located in the Albuquerque Country Club area.  Keller told the audience this:

“We all know what’s happening now. I see homelessness. I see vagrants. I see broken windows all over our city. … All of the challenges we’re facing, I absolutely feel. I feel them and I see them. … I just want to make it abundantly clear that we are in this together. I don’t know anyone in Albuquerque who doesn’t have the same stories I just shared.  … This, by far and away, is our biggest challenge. This is a generational challenge for America; it also is absolutely for Albuquerque.  … This is the challenge of our lifetime.”

https://www.abqjournal.com/news/challenge-of-our-lifetime-keller-talks-crime-homelessness-and-promotes-downtown-tax-district-to-business/article_a9c9c66e-7acd-11ef-bf00-8be4da71ca2b.html

During his August 17 State of the City Address, Mayor Tim  Keller said homelessness and housing are  the biggest problems facing the city. Keller said this:

“Of all the challenges we face, this issue is without a doubt the main event. … Despite our best efforts [there are an estimated]  5,000 people living on the streets … We are not going back down… And we are not going to blame anyone else. We are going to do everything we can for those 5,000 people. But I know we can’t fix this alone. … We need help to build a healthy community across the continuum from the panhandler, to the addict, to those facing eviction.”

https://www.abqjournal.com/news/keller-talks-housing-and-other-challenges-touts-progress-in-state-of-the-city-address/article_c5435dda-5ccb-11ef-9788-a74942415286.html

ALBUQUERQUE UNSHELTERED DATA BREAKDOWN

Mayor Tim Keller has repeatedly said the city has 5,000 homeless but never fully articulating his source for the statistics. The reality is he is embellishing the figures by more than doubling an official count.

On July 31, the New Mexico Coalition to End Homelessness released the 2024 Point-In-Time (PIT) Report for the numbers of unhoused in Albuquerque and in the balance of the state. The PIT count is the official number of homeless reported by communities to the federal Department of Housing and Urban Development (HUD) to receive federal funding and to help understand the extent of homelessness at the city, state, regional and national levels.

The raw data breakdown of Albuquerque’s homeless contained in the 2023 Point In Time Survey is as follows:

HOUSEHOLDS COUNTED IN ALBUQUERQUE

The total count of HOUSEHOLDS experiencing homelessness in Albuquerque on January 29, 2024 was 2,248. (Households include those with or without children or only children.)  The breakdown is as follows:

• Emergency Shelters: 1,018
• Transitional Housing: 174
• Unsheltered: 1,056

TOTAL HOUSEHOLDS: 2,248

PERSONS COUNTED IN ALBUQUERQUE

The total count of PERSONS experiencing homelessness in Albuquerque on January 29, 2024 was 2,740 broken down in 3 categories.

• Emergency Shelters: 1,289
• Transitional Housing: 220
• Unsheltered: 1,231

TOTAL PERSONS: 2,740

ALBUQUERQUE’S 2009 TO 2024 STATISTICS

Total number of PEOPLE counted during the Albuquerque Point-in-Time counts from 2009 to 2024 to establish a graphic trend line for the period are as follows:

• 2009: 2,002
• 2011: 1,639
• 2013: 1,171
• 2015: 1,287
• 2017: 1,318
• 2019: 1,524
• 2021: 1,567
• 2022: 1,311
• 2023: 2,394
• 2024: 2,740

The data breakdown for the 2024 Albuquerque UNSHELTERED was reported as follows:

• 960 (78%) were considered chronically homeless.
• 727 (22%) were not considered chronically homeless.
• 106 (8.6%) had served in the military.
• 927 (75.3%) had NOT served in the military.
• 669 (56.6%) were experiencing homelessness for the first time.
• 525 (42.6%) were NOT experiencing homelessness for the first time.
• 5% of all respondents said they were homeless due to domestic violence with 49.2% of those being women.
• 4% said they were adults with a serious mental illness.
• 0% said they were adults with a substance abuse disorder.
• 8% said they were adults with another disabling condition.
• 3% were asdults with HIV/AIDS.

Individuals who stated they moved to New Mexico from somewhere else were asked whether or not they were experiencing homelessness when they moved to the State and they responded as follows:

• 82 (24.8%) said they were homeless before moving to the state.
• 212 (63.8%) said they were not homeless before moving to the state.
• 77 (11.4%) refused to answer.

HISTORY OF ALBUQUERQUE’S EMERGENCY SHELTER COUNT

The 2024 PIT report contains the count of the number of people residing in EMERGENCY SHELTER in Albuquerque during the PIT Counts for the years 2011-2024.  Following are those numbers:

• 2011: 658
• 2012:  621
• 2013: 619
• 2014: 614
• 2015: 659
• 2016: 674
• 2017: 706
• 2018: 711
• 2019: 735
• 2020: 808
• 2021: 940
• 2022: 940
• 2023: 1,125
• 2024: 1,289

BARRIERS TO HOUSING LISTED

Unhoused respondents were asked to list the barriers they are currently experiencing that are preventing them from obtaining housing. Following are the responses:

• Access to services: 439 responses, 42%
• Access to communication: 263 responses, 25%
• Available housing is in unsafe neighborhoods: 119 responses, 11%
• Credit issues: 150 responses, 14%
• Criminal record: 220 responses, 21%
• Deposit/Application fees: 316 responses, 30%
• Lack of vouchers (rental subsidies): 333 responses,32%
• Missing documentation: 374 responses, 35%
• No housing for large households: 33 responses, 3%
• Pet deposits/Pet Rent: 57 responses, 5%
• Pets not allowed/Breed Restrictions: 48 responses, 5%
• Rental history: 144 responses, 14%
• Rental prices: 340 responses, 32%
• Safety/Security: 77 responses, 7%
• Substance Use Disorder: 283 responses, 27%
• Lack of employment: 45 responses, 4%
• Disabled: 34 responses, 3%
• No mailing address: 31 responses, 3%
• Lack of income: 30 responses, 3%
• Homeless by choice: 30 responses, 3%
• Ineffective service landscape: 25 responses, 2%
• Lack of transportation: 14 responses, 1%
• Discrimination: 8 responses, 1%

The link to review the entire 62-page 2024 PIT report is here:

 https://www.nmceh.org/_files/ugd/ad7ad8_4e2a2906787e4ca19853b9c7945a4dc9

KELLER’S MULTIFACETED APPROACH

Mayor Keller has emphasized that the city is taking a multifaceted, all-in approach to get more people into houses and off the streets.  Keller announced the Metro Homelessness Initiative which has the goal to provide the unhoused staying at shelters with the opportunity of employment.  According to Keller, the city is overhauling its voucher program and improving collaboration with the nonprofits that do the work.

The city will have a total of 5 centers to deal with the homeless that is intended to be operated as an integrated system:

• The Gibson Gateway Shelter
• The Gateway West Shelter
• The Family Gateway Shelter
• The Youth Homeless Shelter
• The Recovery Shelter

Keller said the Gateway Center which is the former Lovelace Hospital on Gibson is the largest investment the city has ever made in health and homelessness with the goal of providing immediate help and a pathway into housing.  The Gateway West shelter is the old westside jail  being reshaped with no barriers to entry and wraparound services.  The city is now adding the Youth Gateway a Recovery Gateway, and the Family Gateway has already helped get 1,200 into permanent housing.  The Recovery Gateway is for the unhoused who are struggling with drug abuse.  The Family Gateway is a reworked hotel to house more than 50 families a night.

Samantha Sengel, the chief administrative officer for the city, said that between Gateway Center and Gateway West, also known as the Westside Shelter, 900 people are able to find shelter each night. The two other gateways in the works for youth and a recovery are also part of a full system of support.  Sengel said this:

“We know that we need to create a full system of support. All of what we are doing needs to be a part of that gateway system. … We also will be opening our medical respite center this calendar year. We will be opening a sobering center this year which is a really critical part of the system that we know are some gaps that we have in our community.”

Links to quoted news sources are here:

https://www.yahoo.com/news/keller-talks-housing-other-challenges-030100317.html

https://www.krqe.com/news/albuquerque-metro/albuquerque-mayor-talks-public-safety-housing-at-2024-state-of-the-city-address/

https://www.abqjournal.com/opinion/opinion-albuquerque-is-a-resilient-city-with-a-future-worth-fighting-for/article_eb21aebc-60ea-11ef-83f1-c7b1e5ae8b16.html

https://www.koat.com/article/metro-homelessness-initiative-is-the-latest-effort-by-the-city/61968575

WESTSIDE JAIL REBRANDED AS NEW “GATEWAY WEST”

On August 9, it was reported that the Westside Emergency Housing has newly renovated sleeping areas.  During summer months, upwards of 450 people stay at the shelter on an average night. The old jail pods are being renovated on a rotating basis  to allow continuous housing of people while the facility is renovated.  The facility has been renamed the “Gateway West.”

The former jail located west of the city off of the old Route 66 was ill-equipped to serve as a full-time shelter. The shelter was opened year-round in 2018.  Over the past several years it has undergone various improvements. Those improvements include replacing a septic system with sewer to better serve a large population, adding a warming kitchen with a walk-in fridge and freezer to make sure three meals a day are available to people staying at the low-barrier shelter and working air conditioning.

The city is renovating the sleeping areas room by room, putting in new floors and replacing the 3 bunk high beds with a more typical option for shelters:  single beds across the center of the floor and “two bunk” beds along the walls. The beds have new mattresses designed to be bedbug proof and easily cleaned.

The third pod renovation has been completed and the city plans to complete 4 more by winter so that 7 renovated pods will be available before the shelter population rises during the colder months. There are 12 pods that will be renovated.  Seven of the dorms are for men, four are for women and one is for couples.

The building has five outdoor shade canopies, but more shaded areas could be added and the city wants to add a pet relief area, platforms for service providers to do fairs outdoors and make upgrades to the property to make it more accessible.

The Gateway West shelter started as an emergency winter night shelter. During the summer, upwards of 100 people who use walkers or wheelchairs stay there on a typical day. Those people often stay at the shelter the whole day, because it is difficult for them to spend the day on the streets.

The city has requested $2 million in federal dollars to meet American Disability Administration requirements by making sure showers, shower bars and seats can be modernized and to pave the outdoor paths to make them nice for wheelchair and walker use.

According to Gilbert Ramirez, the Director of Health, Housing and Homelessness, the facility needed $8.9 million in repairs in January, 2023. Bernalillo County contributed $600,000, which helped purchase the new beds and mattresses, while the City Council authorized $4.5 million, which will be enough to complete the interior renovations on all 12 pods. The city works with multiple nonprofits, which provide many of the services to help homeless people in Albuquerque.

Mayor Keller said this of the newly named Gateway West”:

“Over the last several years, we have been transforming this [former jail] into what it should have been all along, which is essentially a support center with services available for folks with no barriers to entry. … And so that’s why today we’re re-christening this the Gateway West, which, of course, it is our vision to have gateway centers throughout the city. … We want to encourage anyone in Albuquerque who wants to help out — help out a provider, one of these nonprofits that does this work each and every day,” Keller said. “It’s much more effective than just trying to do it yourself.”

The link to the quoted and relied upon news source is here:

https://www.abqjournal.com/news/as-renovations-continue-at-city-s-westside-shelter-the-facility-also-gets-a-new-name/article_d93855fc-5690-11ef-8ecc-ef0bc34c27ce.html#tncms-source=home-featured-7-block

GIBSON GATEWAY HOMELESS SHELTER

It was on April 6, 2021, that Mayor Tim Keller officially announced the city had bought the massive 572,000 square-foot hospital complex for $15 million in order to convert it into a 24-7 homeless shelter to assist an estimated 1,000 homeless residents and connect them to other services intended to help secure permanent housing. The original hospital complex had a 201-patient bed capacity and includes large lobby common areas, administrative offices and physician offices, treatment rooms, emergency admittance areas and operating areas and a large 350 capacity auditorium. Once remodeling is completed, the shelter is intended to serve all populations of men, women, and families. Further, the city wants to provide a place anyone could go regardless of gender, religious affiliation, sobriety, addictions, psychotic condition or other factors.

Mayor Keller has always touted the Gateway Center as his top solution to homelessness, but construction issues have caused significant  delays.  Since the April 6, 2021 purchase of the Gibson Medical Center for conversion to the Gateway homeless shelter, completion of the project has experienced delay, after delay after delay. The repeated delays have been caused by neighborhood protests, a civil lawsuit and zoning battle and asbestos being discovered on the property requiring millions in  remediation costs and the city being find by the federal environmental health department.

The original Gateway Center as envisioned will provide navigational services for women and men. The Westside Shelter, now Gateway West, will still provide 600 beds for whoever needs them. The first phases of the Gateway Center, including 50 beds for women  has been completed. Construction costs for “phase one” was $7 million.

By this time next year, city leaders expect their entire Gateway system will be able to help up to 1,500 people a night, but that is contingent on remodeling  projects meeting deadlines.  City officials are saying the original Gateway Center,  which has been under construction for almost three years, will be fully up and running by mid-2025.  According to city officials, there already more than 300 people utilizing the Gateway Center right now, and a new sobering center is expected to open, along with a navigation center for men in the winter.

There have been major delays in openings over the years, and with an estimated $70 million price tag, split between the city, state and feds, it’s likely even more delays will occur.  Notwithstanding Mayor Keller and his administration leaders are asking the community to think about the big picture. CAO Sengel said this:

“We really need the community to believe in this model and get behind us in the sense that this is the place that we are investing to ensure that people have the support they need to move them from unhoused and living on the street through support services, and moving them towards the opportunity to be housed.”

https://www.abqjournal.com/news/keller-talks-housing-and-other-challenges-touts-progress-in-state-of-the-city-address/article_c5435dda-5ccb-11ef-9788-a74942415286.html

CITY MOVES FORWARD WITH YOUTH HOMELESS SHELTER

Notwithstanding the Gateway Center on Gibson and the Gateway West Center, Mayor Tim Keller says  that the city needs even more resources to address homelessness and he has announced a Gateway Center expansion plan. The big idea behind the city’s Gateway Center expansion plan includes a network of 5 different facilities providing specific resources for specific groups.

Chief Administrative Officer Samatha Sengel said this:

“This is a system of support, and we recognize that when you have individuals that are sleeping in a shelter, the most important thing we can do is ensure that they have access to support services. … Supporting individuals with true case management and walking along with them where they are and bringing them to housing. That model has been proven out in not only in Albuquerque and other places.” 

Keller announced that work is already underway to convert the old San Mateo Inn near I-40 into the city’s first major Gateway Center expansion.  The city purchased the building for nearly $5 million with plans to convert it into the city’s first Youth Homeless Facility. A recent report found a significant group of 15 to 25 year olds experiencing homelessness never utilize the city’s existing resources.

Dr. Samantha Sengel, the city’s chief administration officer, put it this way:

“We have very focused programs for men and women and family. But I think that recognizing that 20 year olds, 21 year olds, need a very different environment is exactly what we’re focused on. … They’re at a stage in their life that they need different types of support, and if we have a dedicated location for them, we can ensure that they have appropriate supports.  We’re right in the phase right now of determining the level of the renovation that’s going to require. So we’re all aiming for 2025.”

Gilbert Ramirez, director of the city’s Health, Housing, and Homelessness Department said this:

 “A lot of our young adults do not access adult-based services, because they don’t consider themselves necessarily to be adults, even though they’re 18, 19.”

City leaders say the new Youth Gateway Center is expected to house between 30 and 50 young adults at a time.  While the new Youth Gateway Center houses young adults, and another converted hotel offers services for families experiencing homelessness. There’s also plans for a recovery gateway, a micro-community dedicated to people suffering from addiction.

City leaders say more announcements about the Gateway Center are coming this fall.

City of Albuquerque moves forward with plans for youth homeless shelter – KOB.com

CITY’S FINANCIAL COMMITMENT TO THE UNHOUSED

Originally, it was the city’s Family Community Services Department (FCS) Department that provided assistance to the homeless.  In fiscal year 2021-2022, the department spent $35,145,851 on homeless initiatives.  In 2022-2023 fiscal year the department spent $59,498,915 on homeless initiatives. On June 23, 2022 Mayor Tim Keller announced that the city was adding $48 million to the FY23 budget to address housing and homelessness issues in Albuquerque.  Key appropriations included in the $48 million were as follows:

• $20.7 million for affordable and supportive housing   
• $1.5 million for improvements to the Westside Emergency Housing Center
• $4 million to expand the Wellness Hotel Program
• $7 million for a youth shelter
• $6.8 million for medical respite and sobering centers
• $7 million for Gateway Phases I and II, and improvements to the Gibson Gateway Shelter facility
• $555,000 for services including mental health and food insecurity prevention

The link to the quoted source is here:

https://www.cabq.gov/family/news/mayor-keller-signs-off-on-major-housing-and-homelessness-investments

Effective July 1, 2024, the Family and Community Services Department was split to create two departments:  Health, Housing and Homelessness (HHH)  and the Youth and Family Services (YFS). The Health, Housing and Homelessness Department (HHH) provides a range of services to the unhoused. The services offered by the department directly or by contract with community providers include:

• Behavioral health services, which encompass mental health and substance abuse treatment and prevention.
• Homeless services.
• Domestic violence support.
• Health care.
• Gang/violence intervention and prevention.
• Public health services.
• Rental assistance and affordable housing developments.

HHH also operates four Health and Social Service Centers and the HHH department employs upwards of 100 full time employees.

The enacted FY/25 General Fund budget for the HHH Department is $52.2 million, which includes $48 million for strategic support, health and human services, affordable housing, mental health services, emergency shelter, homeless support services, Gibson Health HUB operating, and substance use services from Family and Community Services Department, and $4.2 million for a move of Gibson Health HUB maintenance division form General Service Department.

The HHH departments FY/25 budget which began on July 1, 20224 includes:

• $13.3 million of FY/24 one-time funding transferred from Family and Community Services, including $265 thousand for strategic support,
• $110 thousand for health and human services,
• $8.5 million for affordable housing,
• $1.5 million for mental health services,
• $1.2 million for emergency shelter,
• $200 thousand for substance use services,
• $1 million for homeless support services and $500 thousand for the Gateway Phase 1 and Engagement Center at Gibson Health Hub.

The FY/25 HHH Department budget increases recurring funding of $250 thousand for Family Housing Navigation Center/Shelter (Wellness-2), and recurring funding of $250 thousand for Gibson Health HUB maintenance. The proposed budget adjusts program appropriations of $776 thousand in FY/25 based on projected savings.

The Gateway Homeless shelter on Gibson, the city’s one-stop shop for shelter, housing and employment services, has been appropriated $10.7 million in total funding fiscal year 2025.

The Westside Emergency Housing Center was appropriated $1.5 million.

The proposed budget includes $8 million in one-time funding for supportive housing and voucher programs, plus $100,000 for emergency housing vouchers for victims of domestic violence.

Other major budget highlights for the homelessness, housing and behavioral health include the following:

• $900,000 nonrecurring to fully fund the Assisted Outpatient Treatment program.
• $730,000 in recurring funding for operation of the Medical Sobering Center at the Gateway Shelter.
• $100,000 nonrecurring for emergency housing vouchers for victims of domestic violence.
• “Full funding”for service contracts for mental health, substance abuse, early intervention and prevention programs, domestic violence shelters and services, sexual assault services, health and social service providers, and services to abused, neglected, and abandoned youth.
• $1.5 million in recurring funding for the Medical Respite facility at the  Gateway Center.
• $100,000 nonrecurring for the development of a technology system that enables the city and providers to coordinate on the provision of social services to people experiencing homelessness and behavioral health challenges.
• $500,000 nonrecurring to fund Albuquerque Street Connect. According to the mayor’s office, Street Connect is a “proven program” that focuses on establishing ongoing relationships with people experiencing homelessness to help them into supportive housing.

You can review all city hall department budgets at this link: 

Click to access fy24-proposed-web-version.pdf

COMMENTARY AND ANALYSIS

Since becoming Mayor in 2017, Mayor Tim Keller has made the homeless the top priority perhaps only second to public safety. During the past 7 years of his tenure , the city has established two 24/7 homeless shelters, including purchasing the Loveless Gibson Medical Center for $15 million to convert it into a homeless shelter and has spent upwards of $80 million to renovate it. The city is funding and operating 2 major shelters for the homeless, one fully operational with 450 beds and one when once remodeling is completed fully operational  will assist upwards 1,000 homeless and accommodate at least 330 a night. Ultimately, both shelters are big enough to be remodeled and provide far more sheltered housing for the unhoused.

According to the City budgets for the years 2021 to 2024, the Keller administration has spent upwards of  $200,000,000 or approximately $50 Million a year to provide shelter and services to the unhoused.

Keller has taken an “all the above approach” to deal with the city’s homeless. The city will have a total of 5 centers to deal with the homeless that should be operating as an integrated system by the end of next year:

• The Gibson Gateway shelter
• The Gateway West shelter
• The Family Gateway shelter
• The Youth Homeless shelter
• The Recovery Shelter

Notwithstanding all the efforts, the city’s financing and programs initiated by Mayor Keller, he insists that the city has 5,000 homeless. Every year that the Point In Time survey is released, the city and service providers always proclaim it is a massive undercount of the city and state’s homeless population. The accuracy of the numbers are called into question with some arguing that the city’s homeless numbers are as high as10,000 or more as demands are made for more and more spending.

Government and charitable providers who rely on government funding to assist the homeless to an extent are motivated to make claims that the numbers they serve are much greater than they really are because government funding or even donations are dependent on the numbers they actually serve. This is especially so when federal funding is at stake.

KELLER’S EMBELISHMENT OF THE NUMBERS

The Point in Time (PIT) survey is criticized because everyone at risk of or experiencing homelessness through the course of the entire year is not included.  The PIT report does not include those who are referred to as the “hidden homeless” which is defined as people who may be sleeping in their cars, overcrowded homes, vacant buildings or staying “on and off” with friends or relatives for short periods of time or in other unsafe housing conditions or in undetected campsites and those who have no permanent address.

Mayor Tim Keller’s embellishment that the city has upwards of 5,000 is not supported by the Point In Time survey.  The overall numbers found each year by the PIT over the last 12 years has been very consistent. Albuquerque’s total number of chronic homeless is between 2,002 counted in 2009  and 2,740 counted in 2024.

Until government and all homeless providers come up with an ongoing method of calculating the homeless throughout the year, the annual Point In Time is the only count that is reliable and should not be dismissed as inaccurate.  The blunt reality is that homelessness will never be solved until the underlying causes are resolved including poverty and the mental health and drug addiction crisis.

Given the numbers in the 2023 PIT report and the millions being spent on the homeless crisis it  should be manageable. Yet the crisis is only seems to get worse and worse each year and it is a continuing major drain on city resources. During the past few years the unhoused have become far more dispersed throughout the city and have become far more aggressive in camping where they want and for how long as they want.

The problem the city and Mayor Keller have failed to solve is the homeless squatters who have no interest in any offers of shelter, beds, motel vouchers from the city or alternatives to living on the street and who want to camp at city parks, on city streets in alleys and trespass in open space. Until that problem is solved, the public perception will be is that very little to no progress has been made despite millions spent to deal with what Keller describes as the “challenge of our lifetime.”

On October 18, 2022 Mayor Tim Keller announced his “Housing Forward ABQ Plan.” Mayor Keller set the goal for the City of Albuquerque to add 5,000 new subsidized housing units across the city by 2025 above and beyond what private industry normally creates each year. Keller called the 5,000 goal as “extremely ambitious.”  According to Keller, the city is in a major “housing crisis” and the city needs as many as 33,000 new housing units.

Fast forward to October 1, 2024. With three months left until 2025, Mayor Keller admitted that his goal of the city subsidizing 5,000 new housing units by 2025 was too ambitious and that only 2,000 housing units have been subsidized.  Keller said this:

“… I wish that we would have said 2027. …We are a little short, based on our timeline, and our timeline was probably a little aggressive, but we’re at 2,000 for sure right now. And we do have another 300 units in the pipeline. … We’ve made a ton of progress. … It just takes a little longer than we thought to subsidize 5,000 units of new housing.”

Mayor Keller blamed the New Mexico Legislature and City Council for the city falling short on his goal of 5,000 subsidized housing units.  Keller said this:

“We did not get the funding we thought we would [from the legislature] …  Primarily last legislative session.  We asked for $50 million and we got $6.4 [million].”

Keller went so far as to blame the City Council for failing to enact 4 proposed zoning changes he wanted to the city’s zoning laws. Keller said this:

“When we made that pledge [of 5,000 city subsidized housing units], it was predicated on us getting four out of  four things that we wanted.”

Two of Keller’s proposed zoning changes were enacted by the City Council.  One allows casitas or detached units to be built on existing residential homes and the other eliminated building height limits on new construction.

The City Council rejected two of  Keller’s proposed zoning changes. One  would have allowed for duplexes to be built on existing homes. The second rejected measure reduced parking in mixed-use zone districts.

Connor Woods, the spokesperson for the Health, Housing and Homelessness department declined to give a number of affordable housing units the city added since 2022.  However,  he said since 2018 that 1,200 affordable housing units have been added and 200 new units were financed over the last year, calling it a record number. Woods said this:

“Despite major investments from the city, totaling more than $94.4 million dollars, funding to address the housing gap is significantly short of what is needed. … Moving forward we are dedicated to securing funding to continue the momentum to build the housing Albuquerque needs.”

Woods said  that “about 15,500 new housing units are needed for people making less than 30% of the Area Median Income.”

ALBUQUERQUE’S HOMELESS NUMBERS

Mayor Keller has  repeatedly said that the estimated  number of homeless in Albuquerque is  around 5,000 which is a gross exaggeration. The Point-In-Time (PIT) survey count is the annual federally funded process of identifying and counting individuals and families experiencing sheltered and unsheltered homelessness in Albuquerque. The Point-In-Time (PIT) count of the homeless released in July, 2024 reported the actual number is 2,394, which is less than half of the 5,000 Keller has claimed.

https://www.nmceh.org/_files/ugd/ad7ad8_6d9bf66e3a5d407eaad310cc44ecaf82.pdf

Keller said that while his Housing Forward Plan may not meet its 2025 goal of housing units, he is still looking to increase the supply of housing  and meet the ambitious goal of 5,000 units eventually. Keller said this:

“I think really what I’m hopeful about, and what is the most important thing, is how much funding we can get this [legislative] session. …  We’re doing a joint ask with the county for $100 million. That’s what we need, and the city can’t do these kinds of things.  We can’t finance these by ourselves.”

The link to the quoted and relied upon news source is here:

https://www.abqjournal.com/news/kellers-ambitious-subsidized-housing-goal-unlikely-to-be-met-by-2025/article_5b076bc0-7d3f-11ef-b6e7-4fed63bb1404.html#tncms-source=home-featured-7-block

CITY COUNCIL GETS UPDATE ON HOUSING GOALS

On September 19, 2024, the Albuquerque City Council was given an update on Keller’s Housing ABQ Forward Plan and  the city’s efforts to bring 5,000 housing units to Albuquerque by 2025 with city support.   City Councilors had repeatedly asked for an update from the City to no avail.  The update report was on the city’s housing projects from the last 5 years as well as plans to increase unit production before 2025.  The Keller Administration cited a 30,000-unit shortage of housing and a need for 15,500 affordable housing units. The topic of the unhoused was also brought up by city councilors.

Joseph Montoya, the city’s new Deputy Director of Housing, made an in-depth presentation that laid out what the city has been doing and how they plan to address the affordable housing shortage.  Montoya said the goal was 30,000 units of new housing over the next 5 years. Out of that number, at least 5,000 units of affordable housing are needed. The 5,000 units of affordable housing by the city has from the get-go been the goal of the “Housing Forward ABQ Plan.”

STATISTICS PRESENTED

Over the past 5 years, the city has supported the construction of 2,224 housing units, 1,021 of which are subsidized for low to moderate income tenants. On average, the city has been producing between 200 and 250 affordable units per year, for about 450 units total. The city now has a goal of producing 1,000 affordable housing units per year. To reach that goal, the current housing output will have to at least quadrupled.

Joseph Montoya, the city’s Deputy Director of Housing, reported the following statistics to the city council:

• Nearly half of renters are rent-burdened.
• Rents have increased 20% since 2021.
• The median house price is $360,000.
• The city’s current waiting list for help with housing is about 800 people long.
• The city needs to produce 1,500 new units a year to keep up however only 200-250 units are being produced.

In addition to the initiatives already in place, Montoya outlined additional strategies the city would like to use. Those strategies include:

• Expediting planning approvals for affordable housing developments
• Opening request for proposals, known as RFPs, to “for-profit” as well as nonprofit developers
• Creating a loan fund for homeowners building affordable accessory dwelling units.
• Align the city’s RFP process with the Metropolitan Redevelopment Agency and to create funding packages for developers.

Montoya is asking for a $20 million per year budget to focus on housing initiatives in the city.

REVISITING KELLER’S HOUSING FORWARD ABQ PLAN

Given Mayor Keller’s blaming the City Council and the New Mexico legislature for the failure of his Housing Forward Plan, an in-depth review of his plan and where it succeed and where it failed is in order.

It was on October 18, 2022 that  Mayor Tim Keller announced his “Housing Forward ABQ Plan.” It is a “multifaceted initiative” where Mayor Keller  set the goal of the City of Albuquerque being involved with adding 5,000 new subsidized housing units across the city by 2025 above and beyond what private industry normally creates each year.  According to Keller, the city is in a major “housing crisis” and the city needs as many as 33,000 new housing units immediately.

During his October 18, 2022  news conference announcing his “Housing Forward ABQ Plan” Keller emphasized the importance of amending the city’s Integrated Development Ordinance (IDO) to reach his goals.  Keller said this:

“Right now our zoning code will never allow us to meet the housing demand in the city … If you want a place to advocate, if you want a place to change policy, if you want a place to argue, it’s all about the IDO [Integrated Development Ordinance] .  …  The proposed changes are intended to be transformative, which is fitting for the crisis facing our local government, thousands of families in our community, and our housing partners.”

To add the 5,000 new housing units across the city by 2025, Keller proposed that the City of Albuquerque fund and be involved with the construction of new low-income housing.  The strategy included a zoning code “rebalance” to increase population density in established neighborhoods, including historical neighborhoods.

It included allowing “casitas” which under the zoning code are known as “accessory dwelling” units and duplex development on existing housing and other major changes relating to parking and height restrictions.

It included “motel conversions” and conversion of existing commercial office space into low income housing.

It also included enactment of ordinances to regulate the rental and apartment industry and promoting city sanctioned tent encampments for the unhoused.

Allowing both casita and duplex development, increasing density in established neighborhoods, reducing parking requirements in new developments as well as allowing increases in height restrictions were all changes strongly supported and lobbied for by Mayor Keller with support from the development community.

The local chapter of the  National Association of Industrial and Office Parks (NAIOP) lobbied heavily in favor of Keller’s “Housing Forward ABQ Plan” even going as far as having its President and Vice President testify before the City Council.

NAIOP is considered the most influential business organization in the city consisting of developers, investors and contractors with membership in excess 300 with many bidding on city contracts.  NAIOP has its own politcal action committee and the organization endorsees candidates for Mayor and City Council while the membership donates to candidates.  NAIOP also sponsors bus tours by City Councilors in all 9 City Council Districts to help identify development.

SUCCESSES AND FAILURES OF KELLER’S HOUSING FOREWARD ABQ PLAN

The Keller Administration was able to narrowly secure some victories on his “Housing Forward ABQ Plan.”

Measures that PASSED included allowing two “Safe Outdoor Spaces” in all 9 City Council Districts, casita construction in established residential areas of the city to increase density and reducing restrictions on motel conversion projects to allow for easier development. Keller unilaterally without city council input instituted a plan to purchase existing motels to convert them into low income housing and increase the city’s ownership and inventory of low income housing.

Measures that FAILED included allowing duplex development on existing housing to increase density, reducing parking requirements for multifamily developments and increasing building heights for some apartment buildings.

Two new proposed city council ordinances that FAILED to be enacted included an ordinance requiring the disclosure and the  capping of fees on apartments and rental properties and to cap the number of short-term rentals in the city.

AMENDING CITY ZONING LAWS: CASITA’S IN, DUPLEX DEVELOPMENT OUT

Keller wanted to allow different forms of multi-unit housing development on existing residential neighborhoods and properties throughout the city.  City officials said that 68% of the city’s existing housing is single-family detached homes with 120,000 existing residential lots with already built residences on them.

As part of his Housing Forward ABQ Plan, Keller pushed for enactment of two major amendments to the city’s Integrated Development Ordinance (IDO) which is the city’s zoning laws.

One amendment allowed one 750 foot “casita” or one “accessory dwelling” unit on all built out lots which could double density to 240,000 housing units city wide.

The second amendment would have allowed “duplex development” on existing residents where 750 square foot additions for separate housing would be allowed on existing residences which with casitas would have tripled density to 360,000.

Mayor Keller called the legislation “transformative” updates to Albuquerque’s Integrated Development Ordinance (IDO) to carry out his “Housing Forward ABQ”.  

The amendments contained in the legislation was to allow the construction of 750 square foot casitas and 750 square foot duplex additions on every single existing R-1 residential lot that already has single family house built on it in order to increase density. 

The amendments as originally proposed would allow one “casita” and one “duplex addition” with a kitchen and separate entrance to an existing structure on all built out lots.  City officials  said that 68% of the city’s existing housing is single-family detached homes with 120,000 existing residential lots with already built residences.

The zoning code amendments would have made both casitas and duplex additions “permissive uses”.  Historically, they have always been “conditional uses”.  A “conditional use” requires an application process with the city Planning Department, notice to surrounding property owners and affected neighborhood associations and provides for appeal rights.

A “permissive use” gives the Planning Department exclusive authority to issue permits for construction without notices and hearings and with no appeal process to surrounding property owners. Objecting property owners and neighborhood associations to the permissive casita and duplex uses would be relegated to filing lawsuits to enforce covenants and restrictions.

The Albuquerque City Council voted 5-4 to approve the zoning code changes with amendments made to the  Integrated Development Ordinance.  The version of the bill that ultimately passed on a 5-4 vote was amended extensively.

The city council voted to allow casita construction as a “permissive use” in all single-family R–1 zone and reduce parking requirements for some multifamily properties and changing building height limitations. This was a major change supported by the development community.

The city council voted to strike the amendment and to not allow duplexes to be permissively zoned in R–1 zone areas, which make up about two-thirds of the city.

 LOWERING THE BAR 

On July 6, Mayor Tim Keller signed into law the zoning amendments that embody his “Housing Forward ABQ Plan”.  It allows casita construction on 68% of all built out residential lots in the city.  Casita construction is now a “permissive use” on all single-family R–1 zones giving the Planning Department exclusive authority to approve casitas over objections of adjoining property owners.

Mayor Keller announced his administration’s goal was to review and approve 1,000 new casitas all over the city by 2025.  Keller announced the Planning Department would “lower the bar” for property owners to build casitas and provide pre-approved casita designs. The city also wants to provide loans for building costs to homeowners that agree to rent their casita to those who use Section 8 housing vouchers. However, the Keller Administration has yet to announce how many casitas have in fact been approved and sources say the number is less than 50.

The most glaring fallacy in the zoning changes allowing  for increased casita and duplex development was Mayor Keller’s assumption that there was a widespread market and demand by private property owners for casita’s and duplexes when in fact such developments are extremely expensive and few private property and home  owners have the financial resources. It is estimated the average cost to build a 750 square foot casita or for that matter a 750 square foot duplex addition is $150,000 to $175,000.  It is the real estate development community that can afford casita and duplex development by purchasing existing private residents and converting them into multi family residences for investments and rentals.     

MOTEL CONVERSIONS

Mayor Keller’s “Housing Forward ABQ” places great emphasis on “motel conversions”.  Motel conversions is where the city acquires existing motels and converts them into housing.  The city officials  proclaims motels conversions are a simpler, lower-cost alternative to ground-up construction. City officials estimate the cost is $100,000 per unit to fix up or remodel existing motels for permanent housing.

 A zoning change enacted by the city council in early 2022 year eased the process for city-funded motel conversions by allowing microwaves or hot plates to serve as a substitute for the standard requirement that every kitchen have a cooking stove or oven. The existing layout of the motels makes it cost-prohibitive to renovate them into living units with full sized kitchens.

An Integrated Development Ordinance amendment provides an exemption for affordable housing projects funded by the city, allowing kitchens to be small, without full-sized ovens and refrigerators. It will require city social services to regularly assist residents. The homeless or the near homeless would be offered the housing.

Keller’s Housing Forward  plan called for hotel or motel conversions to house 1,000 people by 2025. However, the city’s goal of 1,000 has fallen seriously short with only two motels purchased for conversion represting approximately 200 units of housing.

On February 11, 2023, the City of Albuquerque executed a purchase agreement for the purchase of the Sure Stay Hotel located at 10330 Hotel NE for $5.7 million to convert the 104-room hotel into 100 efficiency units. The $5.7 million purchase price for the 104-unit complex translates into $53,807.69 per unit ($5.7 Million ÷ 104 = $53,807.69 per unit). The renovations and remodeling of the Sure Stay Motel have already been completed.

The city has also acquired the old San Mateo Inn near I-40. For decades, the old motel was formerly the La Quinta  The city purchased the building for nearly $5 million earlier this year, with plans to convert it into the city’s first Youth Homeless Facility. Renovations and remodeling are now underway by the city. A recent report found a significant group of 15- to 25-year-olds experiencing homelessness never utilize the city’s existing resources.

COMMERCIAL OFFICE SPACE CONVERSIONS

According to Keller’s original Housing Forward plan, the city wanted to convert commercial office space into to residential use. The Keller administration proposed $5 million to offset developer costs with the aim of transitioning 10 commercial  properties  and creating 1,000 new housing units.

The Keller Administration early on announced that the conversion office space plan was too heavy of a lift for the city and the city has yet to acquire a single commercial office building to be converted into residential use.

Despite the Keller Administrations failure to acquire commercial office space for conversion into residential use, the private sector has taken up the challenge with city assistance on tax abatement.

On September 4, 2024, the Albuquerque City Council unanimously approved tax abatements for major housing development projects in the city. One of the projects is exclusively an affordable housing project. The tax abatements will be a “freeze” for seven years on developers’ tax payments at the level being paid before any development took place on the property.

With the tax abatements in place, the developers will be able to move forward and secure building permits and financing.  According to a city staff report, the tax abatement will save developers hundreds of thousands of dollars of at least $744,332 in property taxes. The tax abatements are meant to incentivize the development projects.

One of the projects is the 10-story Two-Park Central Tower near the corner of San Mateo and Central. For decades the building was commercial office space.  It has been vacant for a number of years, and it will now be converted into housing. Developer Route 66 Multifamily plans to turn the vacant office building into 101 apartments. Some of the apartments will be market value, and some might become affordable housing.

Another housing development projects is the old Bank of the West Tower located at Central and San Mateo. It is a 17 story a high-rise office building completed in 1963 and when it was built it was the tallest building in the city. It is now the fifth tallest building in the state, and the tallest outside of Downtown Albuquerque. Developer Route 66 plans to turn the commercial building into apartments.

The third and only project dedicated to affordable housing will be built at the corner of Central and Alcazar SE. The 70-unit Somos affordable housing complex is being developed by Sol Housing. The nonprofit plans to set aside 84% of the units for income-restricted affordable housing. The tax abatement on this project will save the developer an estimated $514,376.  The city already owns the land that the Somos project is being built on and will transfer ownership to Sol Housing after the abatement period ends.

Sunlight Properties and Garfield Townhomes also received council approval for a tax abatement for a townhome project in the University Heights neighborhood. The developers plan to build 16 townhomes on a vacant lot on Garfield. The tax abatement should save the developer $151,209.

https://en.wikipedia.org/wiki/Bank_of_the_West_Tower_(Albuquerque)#References

https://www.krqe.com/news/albuquerque-metro/housing-planned-for-vacant-albuquerque-building-at-central-and-san-mateo/

 “SAFE OUTDOOR SPACES”

Although Safe Outdoor Spaces for the unhoused was not announced as part of Mayor Keller’s original “Housing Forward ABQ Plan”, they nevertheless required major changes to the Integrated Development Ordinance. They “dove tail” into Keller’s overall approach to what he labeled an “all above approach” to address the city’s housing shortage and to deal with the unhoused.

Safe Outdoor Spaces became one of the most divisive issues dealt with by the City Council in some time. It not only divided the city council but also resulted in major opposition by neighborhood associations and homeowners.

Opposition to Safe Outdoor Spaces was shamelessly dismissed as “not in my backyard.” Safe Outdoor Space city sanctioned homeless encampments are not just an issue of “not in my back yard,” but one of legitimate anger and mistrust by the public against city elected officials and department employees who have mishandled the city’s homeless crisis and who are determined to allow them despite strong public opposition.

It was April 1, 2022, in his proposed 2022-2023 budget, that Mayor Tim Keller,  advocated and  supported an amendment to the Integrated Development Ordinance that allows for the land use known as “Safe Outdoor Spaces” to deal with the homeless crisis.

“Safe outdoor spaces” will permit 2 homeless encampments in all 9 city council districts with 40 designated spaces for tents, they will allow upwards of 50 people, require hand washing stations, toilets and showers, require a management plan, 6 foot fencing and social services offered. Although the Integrated Development Ordinance amendment sets a limit of two in each of the city’s 9 council districts, the cap would not apply to those hosted by religious institutions.

On June 6,  2022 despite significant public outcry against Safe Outdoor Spaces  the Albuquerque City Council enacted the legislation and passed it  on a 5 to 4. On December 5, 2022 the City Council voted on a 5 to  4 vote to remove all references to Safe Outdoor Spaces within Albuquerque’s zoning code thereby outlawing the land use.  Mayor Tim Keller vetoed the legislation. It was the councils third attempt to reverse its own decision in June to allow Safe Outdoor Spaces with one vote defunding them. On January 4,  2023 the city council attempted to “override” Keller’s veto, but failed to secure the necessary 6 votes.

Initially, there were 6 applications for Safe Outdoor Spaces, but only 3 were approved with one of those approved abandoned because the city sold the property to where it was to be located.

Safe Outdoor Space tent encampments will destroy neighborhoods and make the city a magnet for the homeless. The general public has legitimate concerns that Safe Outdoor Space homeless tent encampments will become crime-infested nuisances, such was the case with Coronado Park.  The homeless crisis will not be solved by the city but must be managed with permanent housing assistance and service programs, not nuisance tent encampments.

CITY COUNCIL REJECTS AGGRESSIVE ORDINACES TO REGULATE RESIDENTIAL RENTAL INDUSTRY

Keller’s “Housing Forward ABQ Plan” attempted  to address the shortage of affordable housing with two very aggressive new ordinances. Both the ordinances failed to get council approval.  Those two proposed  new ordinances were:

The “Residential Tenant Protection Ordinance” was to target what was declared “deceptive” practices and “unreasonable” fees charged by residential rental  proper owners and landlords. The ordinance was viewed as a form of,  or an attempt at, rent control.  The bill would have required landlords to post a list of application fees, minimum income and credit score requirements, plus background check results that could disqualify applicants. Supporters described the bill as “common sense” protections for tenants. They argued the regulations would ease the burden on lower-income renters who currently struggle to pay multiple application fees and who need to know and plan for about all the fees they will have to pay while in a rental agreement. Opponents of the bill, including the rental industry representatives, said it was “meddlesome”, “cumbersome”, “unnecessary” and interfered with property rights and contract rights and was an attempt at rent control .   It was argued passage would likely result in the raising of  rents to account for the new regulations.

The “Residential Rental Permit Ordinance” would have limited and placed caps on short term rentals.  The Keller Administration argued that there is a need to protect existing housing stock to make it available to all permanent residents and future residents so that they will always have access to a safe, stable home. The goal of the ordinance was to cap the number of short-term rentals like Airbnb and VRBO in an attempt to stop housing units from being removed from the overall housing market reducing the availability of homes for sale. The initiative was intended to boost housing stock in Albuquerque. Under the original legislation, the permit cap would have been set at 1,800. The cap was raised from 1,200 in the original legislation to accommodate all current rentals in the city.

COMMENTARY AND ANALYSIS

Mayor Tim Keller blaming the Albuquerque City Council and the New Mexico Legislature for the failure of his Housing Forward Plan to build 5,000 new subsidized housing units and the City  falling short by 3,000 units amounts to nothing more than a spoiled child not getting what he wanted.  It reflects a Mayor who believes he is the only one who has the solution to the city’s housing shortages and reflects that he fully does not understand the cause and effect of supply and demand economics.

The housing shortage is related to economics, the development community’s inability to keep up with supply and demand and the public’s inability to purchase housing or qualify for housing mortgage loans. The shortage of rental properties has resulted in dramatic increases in rents. Simply put, Keller used a short-term housing “crunch” to declare it a “housing crisis” in order to shove his “HOUSING FORWARD ABQ PLAN” down the throats of the city residents and property owners. Keller used the housing crunch to declare a housing crisis to advocate major zoning changes that will increase density and destroy neighborhoods relying on neighborhoods, investors and developers to increase density by laxing zoning restriction for developers.

Keller’s “HOUSING FORWARD ABQ PLAN” empowers the Planning Department to unilaterally issue “permissive uses” for “casitas” on existing structures.  The Planning Department is now allowed to exclude the general public from the permissible use application and deny adjacent property owners the right to object and appeal casitas. It essentially will require property owners to sue adjoining property owners to enforce covenants and restrictions.

“HOUSING FORWARD ABQ” is an aggressive approach to allow the city Family and Community Services department to become alarmingly involved with acquisition of private property to promote Keller’s political agenda to supplement the housing market with low income housing when the city should be concentrating on providing basic essential services.

Mayor  Keller emphasized  the homeless crisis as a rues to promote the “HOUSING FORWARD ABQ” when the plan has nothing to do with housing the homeless and everything to do with increasing housing density in established and historical neighborhood to their determent.

KELLER’S HOUSING FORWARD PLAN CATERS TO DEVLOPERS

For decades, investors, developers and construction contractors have objected to sector development plans proclaiming they were too burdensome and stifled development.  They have wanted a loosening of the zoning laws to allow for casitas and duplexes and reducing parking requirements in new developments as well as allowing increases in height restrictions. The Integrated Development Ordinance repealed upwards of 60 sector development plans.

What really happened with Mayor Tim Keller’s “transformative changes” to  the Integrated Development Ordinance and his  “Housing Forward ABQ” plan is  Keller  catered to the development community as he  pretended  to be an expert in housing development and zoning matters.  Keller relied on his exaggeration of  the city’s housing crisis and homeless crisis to seek further changes to the city’s zoning code to help the development community and using city funding to do it.

Mayor Tim Keller’s Housing Foreword ABQ Plan is a city policy abomination that favors developers and the city’s construction industry over neighborhoods.  At all 5 public meetings on  Keller’s Housing Foreword ABQ Plan  revealed  strong public hostility and mistrust and what emerged was city residents telling  Keller he was going way too far.  The Albuquerque City Council essentially did the same by voting down many of the initiatives it contained, especially saying no to duplex development and the  “Residential Tenant Protection Ordinance” and the“Residential Rental Permit Ordinance”

Keller boldly proclaimed his Housing Forward Plan was “transformational”. The only thing transformational about it is the destruction of historic neighborhoods and the “gentrification” of the city where entire communities are displaced for housing development.

MEASURED APPROACH NEEDS TO BE TAKEN

The blunt reality is that it is not at all realistic for the City nor the State to try and attempt to solve the housing crisis on their own with nothing but government financing, construction and ownership. Government’s responsibility is to provide essential services, such as police protection, fire protection and utilities and not to directly compete with the housing industry.  It’s the market forces that must be relied upon to get the job done when it comes to affordable housing.

The approach that the City should take should be  in the form of tax deferrals, subsidies and low interest loans to act as incentives to construct low income housing.  This is a reasonable, responsible and measured approach to help solve the current housing crisis in the city.  The City can help the private sector to build more affordable housing by eliminating some zoning restrictions that unnecessarily drive-up housing costs so long as there is a preservation and respect for adjoining property owners’ rights and remedies. One area of reform to help the housing industry would be for the city to go to the legislature and ask it to  reduce the states gross receipts tax on construction materials in order to bring down construction costs.

On October 3, U.S. District Judge Tanya Chutkan, who is presiding over the case brought by Special Counsel Jack Smith against former President Donald Trump for his efforts trying to overturn the 2020 election results, unsealed a 165-page “GOVERNMENT’S MOTION FOR IMMUNITY DETERMINATIONS” outlining  new evidence against Trump.  Special counsel Jack Smith provides the most detailed description of evidence against Trump outlining his efforts  to interfere with the 2020 presidential election and that his actions were done in his private capacity and not in his official role as president.

A link to review the entire 165-page court filing is here:

https://www.documentcloud.org/documents/25182568-usa-v-trump-unsealed-govt-immunity-motion-1022024

The filing comes after the United States Supreme Court ruled that presidents enjoy broad immunity for “official acts” while in office, but not for “unofficial acts” as a candidate or a private citizen. Smith’s court filing  claims Trump actions were done  as a political candidate and not as a president and that therefore he is not entitled to immunity from prosecution for the conduct.

The court filing includes new details of Trump’s frayed relationship with former Vice President Mike Pence, FBI evidence of Trump’s phone usage on January 6, 2021, when rioters overtook the US Capitol,  and conversations with family members and others where the then-president Trump  was fighting his loss to President Joe Biden.

The court filing delineates what witnesses told a federal grand jury and the FBI about Trump, along with other never-before-disclosed evidence investigators gathered about the former president’s actions leading up to and on January 6.  New detail is given about special counsel Jack Smith’s investigation into the former president’s efforts to lean on state officials and paint a narrative of widespread fraud that prosecutors say Trump knew was untrue.

Special Counsel Smith wrote in part:

“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office.  … At its core, the defendant’s scheme was a private one. … He extensively used private actors and his campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office.”

The court filing is broken into four main sections:

The first section lays out the case prosecutors said they would attempt to prove at trial, including a summary of evidence.

The second section gives Judge Chutkan a roadmap for how to assess which actions are official, and potentially covered by immunity, and which are not.

The third section identifies how the principles should apply in Trump’s case.

The fourth section is a brief conclusion that asks Judge Chutkan to rule that the actions described are not protected by immunity and that Trump “is subject to trial on the superseding indictment.”

The court filing adds new details of what happened on January 6, 2021, including sensitive testimony from witnesses and notes taken by former Vice President Mike Pence.

In one section, the filing details what Trump was doing on January 6, 2021, as a violent mob of his supporters stormed the U.S. Capitol. It alleges that Trump settled into the dining room off the Oval Office around 1:30 p.m. and spent the afternoon reviewing TWITTER feed on his phone while Fox News played in the background.

At one point, a staffer rushed into the dining room to tell Trump that Pence had been rushed to a secure location because of the rioters. The staffer hoped that Trump would do something to ensure Pence’s safety. Instead, Trump looked at him and said only, “So what?”

The court filing provides a closer look at Trump’s interactions with his former political aide, podcaster Steve Bannon, including a phone call the two men had the day before the Capitol riot. Just a couple of hours later, Bannon told his podcast audience that “all hell” would break loose the following day.

The link to the quoted and relied upon news source is here:

https://www.npr.org/2024/10/02/nx-s1-5137303/trump-election-interference-jack-smith-immunity-jan-6

CNN REPORT HIGHLIGHTS NEW EVIDENCE

On October 2, the national news agency CNN published a succinct article summarizing the contents of the 165 page “Government’s Motion For Immunity Determinations”.  The  article is  entitled  “Special counsel Jack Smith provides fullest picture yet of his 2020 election case against Trump in new filing” written by staff reporters  Katelyn Polantz, Tierney Sneed, John Fritze, Hannah Rabinowitz, Devan Cole, Holmes Lybrand,  Marshall Cohen, Kate Sullivan.  The article has been edited herein for brevity to be posted on www.PeteDinelli.com.  Following  is the summary of the major points contained in the 165-page court filing:

FBI KNOWS HOW TRUMP USED HIS PHONE ON JANUARY 6

“FBI experts have mapped out what Trump was doing on his phone while the US Capitol riot unfolded.

An FBI Computer Analysis Response Team forensic examiner can testify about “the news and social media applications” on Trump’s phone, Smith wrote in the filing, “and can describe the activity occurring on the phone throughout the afternoon of January 6.”

Those logs show that Trump “was using his phone, and in particular, was using the Twitter application, consistently throughout the day after he returned from the Ellipse speech.”

Smith said that three unidentified witnesses are also prepared to testify that on the afternoon of January 6, the television in the White House dining room where Trump spent much of the day was “on and tuned into news programs that were covering in real time the ongoing events in the Capitol.”

That testimony would allow prosecutors to show a future jury what Trump saw unfolding on TV while he made comments and posted online that afternoon.”

 PROSECUTORS FRAME TRUMP CONVERSATIONS WITH PENCE AS BETWEEN ‘RUNNING MATES’

“Even as they face a high bar for introducing evidence from Pence, Smith’s team [seeks] to do so by framing a series of interactions between the two as conversations between “running mates,” where Pence tried to convince Trump he needed to accept his electoral defeat.

They include a November 7, 2020, conversation where Pence allegedly told Trump that he should focus on how he revived the Republican Party, as well as Pence’s recollection of a Trump meeting with campaign staff, during which Trump was told the prospects of his election challenges looked bleak.

At a November 12 lunch, Pence told Trump that he didn’t have to concede but he could “recognize process is over,” prosecutors said, and during a November 23 phone call, Trump allegedly told Pence that one of his private attorneys were skeptical about the election challenges.

As part of those private conversations, prosecutors say, Pence “tried to encourage” Trump “as a friend” after news networks called the election for Biden. In other interactions, Pence encouraged Trump to consider running for reelection in 2024. Those interactions, prosecutors argued, were not at all related to Trump’s official duties as president. The Motion states:

“The content of the conversations at issue – the defendant and Pence’s joint electoral fate and how to accept the election results – have no bearing on any function of the Executive Branch.”

TRUMP PERSONALLY TWEETED PENCE ‘DIDN’T HAVE THE COURAGE’ TO OVERTURN ELECTION

 “Trump personally posted the tweet that Pence “didn’t have the courage” to overturn the election results, prosecutors say.  The revelation comes as part of Smith’s argument as to why the tweet, posted after the riot began, should be considered a private act and therefore not protected under presidential immunity.

The post targeting Pence was “a matter of intense personal concern to the defendant as a candidate for office,” Smith writes. At the time he posted the tweet, prosecutors say Trump “knew his request for Pence to block the Electoral College votes was illegal; knew that his supporters gathered in Washington, DC, believed his lies during his speech at the Ellipse that the election had been stolen; and knew that those supporters had now breached the Capitol building.”

Smith wrote “It was at that point — alone, watching news in real time, and with knowledge that rioters had breached the Capitol building — that the defendant issued the 2:24 p.m. Tweet attacking Pence for refusing the defendant’s entreaties to join the conspiracy and help overturn the results of the election.”

The tweet communicated “to his angry supporters that Pence had let him — and them — down,” Smith wrote, adding that it was “not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power.”

One minute after the tweet was posted, Smith wrote, the Secret Service was forced to evacuate Pence to a secure location in the Capitol.”

TRUMP TOLD FAMILY: ‘IT DOESN’T MATTER IF YOU WON OR LOST THE ELECTION’

 “Prosecutors allege they have a witness who will testify that Trump told family members, “It doesn’t matter if you won or lost the election. You still have to fight like hell.”

The witness, Smith’s team said in the filing, will testify that he was aboard Marine One when then-President Trump made the statement to his wife, Melania Trump, his daughter Ivanka Trump, and his son-in-law Jared Kushner.

Prosecutors did not name the official in the filing, but they said he was the director of Oval Office operations. Prosecutors wrote “He witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election.”

At the time, Ivanka Trump and Kushner were White House employees, serving as advisers to the president, and Melania Trump was first lady.  Prosecutors claim that the conversation aboard Marine One was “plainly private” and had nothing to do with the Trump family’s official government responsibilities. Prosecutors wrote “The defendant made the comment to his family members, who campaigned on his behalf and served as private advisors (in addition to any official role they may have played).”

TRUMP TOLD ADVISERS HE WOULD DECLARE VICTORY

 Prosecutors say that Trump was told by advisers that the 2020 vote likely would not be finalized on Election Day and that he could misleadingly look ahead in the ballot count on election night only to fall behind once all of the ballots were counted. Nonetheless, Trump told his advisers that he would claim victory before the ballots were fully counted, prosecutors say.

One private political adviser, three days before Election Day 2020, described Trump’s plan as: “He’s going to declare victory. That doesn’t mean he’s the winner, he’s just going to say he’s the winner.”  That adviser, not identified by name by prosecutors, also described the Democratic lean of the mail ballot vote as “a natural disadvantage” and said, “Trump’s going to take advantage of it. That’s our strategy.”

TRUMP SOUGHT TO ‘PERPETUATE HIMSELF IN POWER’

“Smith’s office stressed the private and political nature of Trump’s actions around the 2020 election. Prosecutors wrote:

“The executive branch has no authority or function to choose the next president.”

That argument appeared designed for federal appeals courts, including the Supreme Court, that have placed a heavy emphasis in recent years on the historical understanding of the separation of powers. In other words, Smith argues  that Trump’s effort to overturn the election was necessarily private because the Constitution gives a president no official authority for choosing his successor. The motion reads:

“The defendant’s charged conduct directly contravenes these foundational principles. … He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people.”

WHITE HOUSE STAFFER DETAILS PLANNING MEETINGS

 “Prosecutors focus in particular in the filing on what Trump learned from a White House staffer referred to in the filings as “P9,” as they try to show that Trump was well aware he had lost the election as he pressed on with the reversal schemes.

The person, identified only as “P9,” appears to have personally had discussions over the phone about the fake electors strategy with Trump, and had repeated text conversations with other people in the campaign about how the strategy was “crazy” or “illegal,” according to the filing.

When Trump told the staffer he would not pay the private lawyer spearheading his legal challenges unless the challenges were successful, the staffer told Trump that the private attorney would never be paid. That prompted a laugh and a “we’ll see” from Trump, the filings said. The private attorney is identified by prosecutors as co-conspirator 1, who CNN has previously identified as Rudy Giuliani. Ted Goodman, a spokesman for Giuliani, told CNN Wednesday night that the brief was “blatant election interference by Jack Smith, a person with a long track record of weaponizing the law for political gain.”

In a follow up conversation, the White House official told Trump that Giuliani would not be able to prove his false claims in a court and Trump told the staffer “The details don’t matter.”

The brief lays out several other interactions between the White House staffer and Trump in which Trump was told that the election fraud claims wouldn’t hold up in court.”

PROSECUTORS SAY THEY WOULD CALL ELECTION OFFICIALS IN BATTLEGROUND STATES AT TRUMP TRIAL

 “In the filing released, prosecutors identify witnesses they hope to call at a trial to testify against Trump – including election officials in battleground states and his White House deputy chief of staff.

The prosecutors say they also want to show a jury at trial Trump’s campaign speech on January 4, 2021, in Georgia, and his campaign speech on the Ellipse on January 6, 2021, just before the riot at the US Capitol.

And, they’d like to show the jury tweets that they say can prove Trump was driving the public campaign of fraud in the election, as he knew there was none that was widespread enough to overturn his loss. They argue those tweets weren’t part of Trump’s official work as president.

At trial, prosecutors say they would like to call the only other adviser to Trump who had access to his Twitter account to testify that Trump was sending tweets on January 6 that would put pressure on Pence to stop the counting of the electoral votes at the Capitol. The person is described as White House deputy chief of staff.

The motions states “The Government will elicit from Person 45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that person 45 did not send certain specific Tweets” – specifically a tweet Trump sent that said Pence didn’t have the courage to block the certification of the vote.”

That type of testimony would allow prosecutors to assert in court they have evidence of a moment like this:

“At 2:24 p.m., Trump was alone in his dining room,” prosecutors write in the filing, “when he issued a Tweet attacking Pence and fueling the ongoing riot: ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’”

SECRET SERVICE WAS WARNED ABOUT PENCE’S SAFETY

 “According to prosecutors, the Secret Service was warned about Trump threatening to criticize Pence if he failed to overthrow the election results.

On January 5, 2021, Trump once again met with Pence to allegedly try to pressure him not to certify the Electoral College votes. In that meeting, the special counsel wrote that Trump threatened to criticize him publicly.

Smith says that Pence told someone identified only as “P8” about that comment, and that P8 was so concerned by the prospect that he alerted Pence’s Secret Service detail.

Prosecutors allege Trump tried again to pressure Pence on the morning of January 6, shortly before driving to deliver his speech at the Ellipse. Pence, however, again refused and Trump “was incensed,” the filing says. [The motion alleges]  it was then that Trump “set into motion the last plan in furtherance of his conspiracies: if Pence would not do as he asked, (Trump) needed to find another way to prevent the certification of Biden as president” … So on January 6, (Trump) sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city and inundate with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification.”

According to prosecutors, Trump also showed his “desperate conduct as a candidate rather than a President” when rioters stormed the Capitol, forcing Pence to be moved to a secure location.  An unnamed White House aide, according to the filing, ran to Trump when he received a phone call that Pence had been taken to a secure location “in hopes that (Trump) would take action to ensure Pence’s safety.”  Trump, according to prosecutors, looked at the aide and simply replied “So what?”

PROSECUTORS LEAN ON HATCH ACT TO BOLSTER TRUMP CHARGES

 “Smith is again using the Hatch Act – which limits the political activities of federal employees – to bolster the 2020 election subversion charges against Trump. Prosecutors said in the filing that the Hatch Act allows White House staffers to “wear two hats,” separating out their official conduct to serve the public from their political conduct to help a candidate.

Therefore, even if some of Trump’s alleged wrongdoing occurred on White House grounds and in front of White House staff, he doesn’t have immunity because that fell under the “political” umbrella, Smith’s team wrote. [Prosecutors argue]:

“When the defendant’s White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities. … And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in their presence, he too was not engaging in official presidential conduct.”

‘MAKE THEM RIOT’ AND ‘CREATE CHAOS’

 “Prosecutors describe an effort by Trump operatives to “create chaos” in the immediate aftermath of the 2020 election when the voting looked to be going for Biden.

In Philadelphia, prosecutors allege campaign operatives sought to create confrontations at polling places and then “falsely claim that his election observers were being denied proper access” as a predicate to claim fraud.

Prosecutors also raised the fracas at the Detroit Counting Center, pointing to evidence that a campaign staffer, upon learning a heavy incoming batch of votes leaned Biden, asked for “options to file litigation” even if [it] was [baseless].”

The same campaign operative said “make them riot” when told that protests at the counting center were heading in the direction of the so-called Brooks Brothers Riot that disrupted the 2000 Florida count between Al Gore and George W. Bush.”

BILL BARR DECIDED TO SPEAK OUT AGAINST TRUMP’S ELECTION LIES AFTER SEEING HIM ON FOX NEWS

“Then-Attorney General Bill Barr decided in 2020 to publicly rebut Trump’s false claims that the election was rigged after watching Trump spread these lies on Fox News, prosecutors say. Prosecutors write:

“On November 29, [Barr] saw the defendant appear on the Maria Bartiromo Show and claim, among other false things, that the Justice Department was ‘missing in action’ and had ignored evidence of fraud.”

They continued, “[Barr] decided it was time to speak publicly in contravention of the defendant’s false claims, set up a lunch with a reporter for the Associated Press, and made his statement.”

This was the December 1, 2020, statement in which Barr infamously said the Justice Department had looked into potential election irregularities but didn’t find any widespread fraud that could’ve tipped the results. This was a major move by Barr, a lifelong Republican who at the time was a staunch Trump ally.

Barr’s name is redacted in the filing, and he is referred to as “P52.” But P52 is described as the “attorney general,” and Barr was the attorney general at that time.

Barr resigned just before Christmas 2020.”

https://www.cnn.com/2024/10/02/politics/jack-smith-donald-trump-filing/index.html

COMMENTARY AND ANALYSIS

With the landmark presidential immunity decision by the United States Supreme Court, the Trump 6 Supreme Court disciples of John G. Roberts, Jr., Clarence Thomas, Samuel A. Alito, Jr. Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett the United State Supreme Court have done whatever they could do to undermine our federal criminal justice system and attempt to ensure that former President Trump returns to power. The 6 do so at the expense of our democracy.

All six Supreme Court Justices know full well that no one is above the law, yet they carved out a special  exception to benefit Donald Trump claiming the decision is for the benefit of all  future Presidents. They know if the two federal criminal cases against Trump proceed to trial after the election, and he is elected, he will order the Justice Department to simply dismiss the cases or simply pardon himself. They also know if Trump is not elected, he will likely be tried,  convicted and do jail time on the Federal charges.

The 6 appointed Republican Justices have already made a profound difference with their right wing Republican Judicial Activism. The 6 Republican United State Supreme Court Justices have issued 6 major decisions that confirm it has become a far right wing activist court.

The 1st was the court’s  considering an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The 2nd  struct down decades of affirmative action in college admissions. The 3rd ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds.  The 4th  invalidated President Joe Biden’s student loan debt relief plan. The 5^th strips federal government agencies of all regulatory power and mandates court approval of rules and regulations. The 6^th and most controversial  is the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.

As the saying goes, elections have consequences. The 2024 presidential election is again shaping up to be one of the most consequential elections in our history where Supreme Court decisions will be on the ballot as well as the control of congress, not to mention our basic right to vote in an election and the Presidency.

A story has been told and retold about founding father Benjamin Franklin. Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded, “A republic, if you can keep it.”

What we have now is a Republican “politcal judicial monarchy” consisting of 6 conservative Republican Justices all dressed up in their black ropes with gavels replacing scepters and a courtroom replacing a royal thrown room as they render their decrees of justice to carry out the will of Donald Trump and his Trump Republican Party

On September 30,  the American Civil Liberties Union of New Mexico and the law firms Smith & Marjanovic Law, LLC (Taylor E. Smith), The Soto Law Office, LLC (Ramón A. Soto), filed a 6 count civil complaint in State District Court on behalf of  Plaintiff Carlos Sandoval-Smith, a man who was wrongfully arrested, charged and jailed for Driving While Intoxicated (DWI) and forced to pay bribes to get the criminal charges dismissed by APD. Plaintiff Carlos Sandoval-Smith is alleged to be one of dozens of people who were “victimized” as part of an APD scheme with private criminal defense attorney Thomas Clear III to wrongfully charge and arrest people and then solicit bribes to get the charges dismissed.

Named as Defendants are the City of Albuquerque, APD Chief Harold Medina, Former APD Officers Joshua Montaño, Honorio Alba, Harvey Johnson, Nelson Ortiz, Justin Hunt, Daren Deaguero, Neill Elsman, Matthew Trahan, and Mark Landavazo. Also named as Defendants are criminal defense attorney Thomas Clear, III  and  Clear’s paralegal  Ricardo “Rick” Mendez.

The Civil Complaint is a 6 count, 17-page lawsuit filed in the Second Judicial District Court alleging the 9 former APD officers exploited DWI arrests they had made to solicit bribes in exchange for dismissal of the charges. The 6 counts allege:

1. Unlawful Detention and Arrest charged against the city.
2. Malicious Abuse of Process (2 Counts) charged against the city.
3. Deprivation of Due Process of Law charged against the city.
4. Negligent Hiring, Training, Supervision, and Retention charged against the city.
5. Racketeering charged against the 9 former APD Police Officers named and attorney Thomas Clear III  and  Clear’s paralegal  Ricardo “Rick” Mendez.

The lawsuit alleged the defendants, including APD Chief Harold Medina, each conspired with and amongst each other to violate New Mexico State law.

EDITOR’S NOTE: The Postscript to this blog article provides a detailed summation of the 6 counts of the civil complaint.

The Plaintiff’s “Prayer For Relief” requests the Court to enter judgment against the Defendants for:

1. Compensatory damages.
2. Hedonic damages.
3. Punitive damages.
4. Pre-judgment interest.
5. Post-judgment interest,
6. Declaratory relief.
7. Treble damages.
8. Reasonable attorneys’ fees and costs incurred in bringing the action, including expert fees.
9. Such other and further relief as the Court deems just.

The link to read the civil complaint in full is here:

https://www.krqe.com/wp-content/uploads/sites/12/2024/10/Smith-APD-Lawsuit.pdf

FACTUAL BASIS OF CLAIM

Editor’s Note: The following factual basis of the complaint was gleaned from review of the complaint itself and all 6 counts as well as news accounts.

Plaintiff Carlos Sandoval-Smith’s was initially pulled over for speeding in June 2023 by APD Police Officer Joshua Montaño.  The lawsuit alleges Montaño unlawfully expanded the scope of the traffic stop by initiating a DWI investigation without reasonable suspicion. Plaintiff Sandoval-Smith  willingly took a breath test and blew below the legal limit, but he was still booked and charged with DWI by Montaño.

Sandoval-Smith  said that when he was being booked on the charges at an APD substation, his gold bracelet was taken off to be placed with his personal belongings by Montaño in a property bag for later return after his  booking was completed.  The personal property returns never happened. Montaño later called Sandoval-Smith’s about his property and left a voice message on his phone. Montaño’s voice is heard on Smith’s voicemail saying this:

“I don’t know if you realize, but I’m sure you do, that some of your jewelry was missing from the property from Sunday evening.  … And it looks like the PTC officers didn’t put that in your property bag, but I have it”.

Sandoval-Smith said APD officer Montaño referred him to criminal defense attorney Thomas Clear III’s office.  Sandoval-Smith said he had an uneasy feeling that prompted him to record his interaction with Clear’s Paralegal, Rick Mendez.

A transcript portion of that recording reveals the following discussion:

Paralegal Rick Mendez : So we charge $8,500 and you could do it in payments.

Sandoval- Smith: And with you representing me, that would guarantee that this doesn’t go on my record?

Paralegal Rick Mendez: Yes.

It’s clear from the entire recording the $8,500 up front was part of the scheme to get the case dismissed. In January, Carlos Sandoval – Smith’s DWI case was dismissed.  The same month Attorney Clear’s office was raided by FBI agents and news of the alleged scheme was made public for the first time and Sandoval – Smith saw the news coverage.

The ACLU  law  suite alleges officers with APD’s DWI unit would refer DWI suspects to DWI Criminal Defense Attorney Thomas Clear, III and his paralegal  Mendez for legal services.  The complaint alleges “Defendant Officers would agree not to attend pre-trial interviews or testify in those individuals’ criminal cases in exchange for consideration from Defendants Clear and Mendez.”

The ACLU’s complaint also points to what it describes as negligent hiring, training and supervision by the police department of the police offers involved. It alleges that Police Chief Harold Medina was aware of an agreement between some officers assigned to the DWI Unit and Clear’s office to work together to get cases dismissed in exchange for payment. Complicating things for APD Chief Harold Medina is the fact that the bribery and conspiracy scheme to dismiss DWI cases spans a decade and during some of that time APD Chief Harold Medina was the then Deputy Chief of Field Services where he oversaw and was in charge of the DWI unit  and may have known or should have known and have  been aware of what was his subordinates were doing.

The lawsuit states that federal authorities first informed the police department in June 2022 of an alleged attempt by one of the officers to extort $10,000 from another defendant charged. It goes on to say that in December 2022, the police department’s Criminal Intelligence Unit received a tip that officers in the DWI Unit were being paid to get cases dismissed and were working in collaboration with a local attorney who turned out to be Clear. The ACLU alleges in the complaint that the city and the police chief “did not adequately investigate these allegations, if at all, prior to the involvement of federal authorities.”

REACTIONS BY PARTIES

The ACLU claims Smith’s case deserves its day in court. Attorney Taylor Smith is  working with the ACLU representing  Plaintiff Carlos Sandoval-Smith and he gave extended interviews to the media and  said  this about the case:

“This is essentially a mob-like practice that’s being perpetrated by our officers. …They are taking people’s belongings and forcing them to have interactions with private attorneys in order to facilitate obtaining money for the scheme. … Officer Montaño did not operate in a vacuum, at least based off of his statements made [as] part of his resignation.   We know that this is a pervasive issue. … [Carlos Sandoval-Smith’s] life has been ruined. … He’s now been forced to rebuild his life since all this happened. And our opportunity to do this is through the civil process.”

“The reason to include all the officers is we know that Montaño was not operating in a vacuum. We understand that there are a large number of individuals that were involved. My client lost everything. He’s without a home, he’s without a job, and he’s been trying to put his life back together since then.  … As a result of these allegations and things that were relayed to his family, he was immediately no longer allowed to live with them. He owned a business with his aunt, which evaporated overnight, given the rift that this arrest caused.”

“We’ve brought racketeering claims against the individual officers in this case. It’s a criminal statute that we can use as civil attorneys to figure out what was going on within the conspiracy. … We’re trying to find out exactly each role they played in this scheme. And so when it comes to this, it’s just making sure that our officers are following the law, much like they expect all of us to do.”

“What we know from Officer Joshua Montaño’s interactions with our client [Carlos Sandoval-Smith], as well as our client’s interactions with Mr. Clear’s office, specifically, Mr. Mendez, is that there was a scheme in place to arrest somebody allegedly for DWI through the process of taking them to Metropolitan Detention Center, removing their personal items, taking those personal items and violating all the rules of what we call a chain of custody”

“When you take evidence or items from someone, they stay at APD evidence or at the jail, and then they’re given their belongings. That chain was completely broken here. When Officer Montaño, or whoever did it, took our client’s belongings to the home and office of a private attorney in order to require them to go there for his services to further the scheme by charging a large amount for the DWI, which we assume was shared between the attorney and the officers.”

“We do not believe that Chief Medina was involved with the scheme. What our concerns are regarding his supervision of officers within the department, based off of the reporting that we’ve seen to date, we’re aware that Chief Medina was likely aware of what was going on well before Carlos was ever arrested or Mr. Smith. Our concern there is, if we have this knowledge, why are these officers still allowed to conduct their duties and further harm members of our community, like Mr. Smith?”

“We really hope that this spurs some change and ensures that other people aren’t affected, as well as rectifying what’s happened to Mr. Smith. I don’t think any amount of money could ever compensate somebody for these types of injustices, but we will be seeking everything that we believe we’re entitled to, including the loss of income, being displaced and everything that we can, in order to make him whole.”

Plaintiff Carlos Sandova – Smith’s for his part said this in a statement about his lawsuit:

“This lawsuit isn’t just about getting justice for me, it’s about stopping this abuse so no one else has to suffer the way I did. … I lost my business, my home, and my dignity because of APD corruption. It even caused a deep rift in my family that we may never heal from. … [Joshua Montaño] needs to definitely pay for what he did to me and for anybody else that he did this to.”

ACLU legal director Maria Martinez Sanchez said she hopes the lawsuit results in reforms to dismantle what she described as “systemic corruption” within the Albuquerque Police Department.

APD ISSUES STATEMENT

The Albuquerque Police Department took issue with the allegations in the lawsuit and issued the following statement:

“The lawsuit filed by the ACLU contains knowingly false information. Chief Medina worked closely with the FBI to uncover the DWI scheme and opened an internal investigation to hold all involved accountable and leave no stone left unturned. APD leadership continues to cooperate and work with federal partners as they complete their investigation. APD will share more information with the public when details are permitted to be released.”

CHARGES YET TO BE BROUGHT

Aside from the internal investigation launched in February by APD, the FBI is conducting its own inquiry into allegations of illegal conduct. No charges have been filed against any of those identified as being involved with the scandal.  It will be up to the U.S. Attorney’s Office and the US Department of Justice to determine whether any federal laws were violated.

The links to relied upon and quoted news sources are here:

https://www.abqjournal.com/news/aclu-lawsuit-details-dwi-scheme-rocking-albuquerque-police/article_32761b2d-9f59-5645-8d49-7e411fccfad3.html

https://www.krqe.com/news/investigations/aclu-suing-former-officers-apd-over-dwi-corruption-scheme/

https://www.koat.com/article/albuquerque-police-dwi-scandal/62492382

https://www.krqe.com/wp-content/uploads/sites/12/2024/10/Smith-APD-Lawsuit.pdf

APD BRIBERY AND CORRUPTION SCANDAL IN A NUTSHELL

It was on Friday January 19, 2024 that the Federal Bureau of Investigation (FBI) executed search warrants and raided the homes of 3 Albuquerque Police officers and the home and law office of prominent DWI criminal defense attorney Thomas Clear, III.  All 6 of those targeted with a search warrant are allegedly involved in a bribery and conspiracy scheme spanning a decade to dismiss DWI cases. Bernalillo County District Attorney Sam Bregman ordered the dismissed 196 DWI cases because of the scandal due to the main witnesses’ credibility being called into question which in all the cases are APD officers.

The FBI searched the homes of APD Officers  Honorio Alba and Harvey  Johnson and the law offices of Thomas Clear III and the home of Clear’s paralegal Ricardo “Rick” Mendez.  The US Department of Justice and US Attorney’s office have confirmed the APD police officers and the criminal defense attorney are at the center of the federal investigation involving the dismissal of hundreds of pending DWI criminal cases by the APD Officers for remuneration to have the cases dismissed by the officers failing to appear for hearings. No one has yet to be charged as the federal investigation is ongoing.

The Albuquerque Police Department opened its own Internal Affairs investigation. APD Chief Harold Medina appointed Commander  Kyle Hartsock of the Criminal Investigations Division to lead the internal investigation into officers’ conduct as well as into whether anyone else at the department knew about wrongdoing but did not report it.

A total of 9 APD Police officers have been implicated in the scandal and 7  have resigned during the Internal Affairs investigation, one is on paid leave  and one has been terminated. One by one, the accused Albuquerque police officers have been turning in their badges and resigning  rather than talking to Internal Affairs investigators about an alleged public corruption scheme involving DWI cases.  The names and dates of those officers who have resigned or who have been terminated are:

• On February 7, 2024  Justin Hunt,who started at APD in 2000, resigned.
• On February 29, 2024, Honorio Alba, who started at APD in 2014, resigned.
• On March 13, 2024, Harvey Johnson, who started at APD in 2014, resigned
• On March 15, 2024, Nelson Ortiz,who started at APD in 2016, resigned.
• On March 20, 2024 Joshua Montaño, who started at APD January 2005, resigned.
• On May 2, 2024 Daren DeAguero, who started with APD in 2009, resigned.
• On May 9, 2024, Matthew Trahan was placed on paid leave as the investigation playsout. Trahan has been with APD since 2006, was with the DWI unit from 2014-16 and recently worked as a detective.
• On July 30, 2024 APD Officer Neill Elsman, who had worked in the DWI unit within the past several years, resigned before returning to work from military leave.
• On August 1, APD announced that it fired Mark Landavazo, the APD Commander of Internal Affairs for Professional Standards, who started with APD in  2007 and was with the DWI unit from 2008 through 2013.

No one has been charged in the case. The FBI is investigating the allegations as a criminal matter. U.S. Attorney Alex Uballez has said the probe focuses on alleged wrongdoing by “certain” APD officers and others.

 COMMENTARY AND ANALYSIS

It is very disappointing but not at all surprising that federal charges for government corruption have yet to be brought against APD and the identified 9 former APD Police officers. The Feds tend to be very cautious in bringing criminal charges, especially against law enforcement. The delay may also signal the likelihood that the FBI is doing a deep drill into APD and many more of APD’s finest will be charged and may even include present members of APD’s high command. It will likely be over a year before charges are filed. One thing is for certain, the civil lawsuit file by the ACLU has the greatest potential to expose to the public sooner rather than later the extent of the corruption within APD.

There is absolutely no doubt that APD’s reputation has been trashed to a major extent because of this scandal. It’s downright disgusting that the APD Commander for Internal Affairs for Professional Standards was fired who was the very commander who should have caught and perhaps prevented the corruption.  APD will likely be viewed by many as again having just another bastion of “dirty and corrupt cops” who have brought dishonor to their department and to the department’s professed values of “Pride, Integrity, Fairness and Respect”.  

This is so even before any charges have been filed against anyone, before anyone else is fired from APD and before any action is brought against the police officers involved for government corruption and criminal conspiracy to dismiss cases working with a prominent criminal defense attorney.  Should the criminal defense attorney be charged and convicted of the crimes, he is likely facing jail time in prison as well as disbarment from the practice of law.

There is little doubt that this whole DWI dismissal bribery scandal has shaken the public’s faith in our criminal justice system and APD to its core. The only way that any semblance of faith can be restored and for people to begin trusting APD again is if all the police officers involved in this scandal are held accountable and the lawyers involved are held accountable.  That will only happen when there is aggressive prosecutions and convictions, the police officers are terminated and they lose their law enforcement certification and disbarment occurs with the attorney.

Ultimately, it is Mayor Tim Keller and Chief Harold Medina who need to be held accountable with what has happened. Mayor Tim Keller and Chief Harold Medina must ultimately be held accountable and take full responsibility for failed leadership of APD and this most egregious APD scandal.  Mayor Tim Keller and Chief Harold Medina instead have been in full fledge “politcal spin cycle” of “pivot, deflect and blame” since the news broke and since the Albuquerque City Council accused them of failed leadership in dealing with the scandal as they attempted to get ahead of this most recent scandal involving APD.  They both have attempted to take credit for the federal  investigation and for taking action to hold bad cops accountable for the corruption when it was in fact the federal investigation that forced their hand and after they both allowed the problem to fester for 6 years under their watch.

Mayor Tim Keller has already made it known that he is seeking a third four year term as Mayor in 2025. There is no doubt this APD scandal of corruption calls into question Keller’s  management of APD, who he has appointed Chief of Police and if he should be elected to a third term.

__________________________________________________

POSTCRIPT

The civil complaint filed by the ACLU alleges the following 6 counts:

Count One against the City: Unlawful Detention and Arrest in violation of Article II, Section 10 of the New Mexico Constitution.  It is alleged Montaño unlawfully arrested the Plaintiff Carlos Sandoval-Smith with the intent to advance a conspiracy to directly or indirectly defraud Plaintiff and request a bribe from Plaintiff in exchange for a promise not to participate in the prosecution of criminal charges Defendant Montaño intended to bring against Plaintiff. It is alleged  Montaño initiated a DWI  investigation into Plaintiff Carlos Sandoval-Smith without reasonable suspicion that Plaintiff had committed or was committing a DWI and Defendant Montaño arrested Plaintiff without sufficient probable cause.

Count Two against the City:  Malicious Abuse of Process in violation of New Mexico Constitution, Article II, Section 10.  It is alleged that the Defendant Montaño misused the legal process against Plaintiff Carlos Sandoval-Smith and that Montaño did not have a reasonable belief, based on the facts known to him, that the DWI charge against Plaintiff could be established to the satisfaction of a court or jury.  Defendant Montaño’s primary motive in misusing the legal process was to accomplish an illegitimate end and that was to induce Plaintiff to participate in Defendants’ extortion scheme.

Count Three against the City: Deprivation of Due Process of Law in violation of New Mexico Constitution, Article II, Sections 4 and 18. This count alleges Defendant Montaño deprived Plaintiff Carlos Sandoval-Smith of his rights secured by Article II, Section 18 of the New Mexico Constitution by demanding and/or agreeing to receive money from Plaintiff in exchange for not testifying or otherwise participating in the prosecution of criminal charges Defendant Montaño had filed against him. As a direct and proximate result of Defendant Montaño’s actions, Plaintiff Carlos Sandoval-Smith suffered and continues to suffer substantial past and future damages, including, but not limited to, loss of liberty, loss of income, severe emotional distress, mental anguish, embarrassment, and humiliation

Count Four against the City: Malicious Abuse of Process. This count alleges Defendant Montaño misused the legal process against Plaintiff Carlos Sandoval-Smith. It alleges Defendant Montaño did not have a reasonable belief, based on the facts known to him, that the DWI charges against Plaintiff could be established to the satisfaction of a court or jury.  Defendant Montaño’s primary motive in misusing the legal process was to accomplish an illegitimate end which was to  induce Plaintiff to participate in Defendants’ extortion scheme.  As a direct and proximate result of Defendant Montaño’s actions, Plaintiff Carlos Sandoval-Smith was arrested and charged with driving while intoxicated with a minor in his vehicle, even though Defendant Montaño did not have probable cause to believe that Plaintiff had committed this crime.  As a direct and proximate result of Defendant Montaño’s actions, Plaintiff spent time in jail and Plaintiff suffered and continues to suffer substantial past and future damages, including, but not limited to, loss of liberty, loss of income, severe emotional distress, mental anguish, embarrassment, and humiliation.

Count Five against the City: Negligent Hiring, Training, Supervision, and Retention. This count alleges the Defendant City owed a duty to Plaintiff Carlos Sandoval-Smith to adequately hire, train, supervise, and retain Defendants Officers to reasonably protect and ensure the safety of the citizens of the City of Albuquerque, including Plaintiff Carlos Sandoval-Smith.  Defendant City breached its duty to the Plaintiff by hiring Defendant Officers, who were not qualified or  competent to work as police officers with APD, by failing to train and supervise Defendant Officers so that they would not extort Plaintiff or deprive Plaintiff of his  civil rights.  By the continued retention of Defendants Officers, Defendant City’s negligent hiring, training, supervision, and retention of Defendant Officers directly and proximately caused injuries to Plaintiff. As a direct and proximate result of Defendant Officers’ actions, Plaintiff suffered and continues to suffer substantial past and future damages, including, but not limited to, loss of liberty, loss of income, severe emotional distress, mental anguish, embarrassment, and humiliation.

Count Six: Racketeering against the 9 former Police Officers named and attorney Clear and his paralegal. This count alleges the Defendant Officers collectively and individually engaged in instances of direct and/or indirect bribery by demanding or receiving money with the intent to have their decision or action regarding their participation in the prosecution of a particular DWI  case influenced.

Count 6 alleges the  Defendant Officers collectively and individually engaged in instances of bribery by receiving, agreeing to receive, or soliciting a bribe or anything of value to testify falsely or abstain from testifying to a fact in judicial, administrative, or other proceedings.

Count 6 alleges the Defendant Officers collectively and individually engaged in instances of fraud by taking personal possessions by means of fraudulent conduct, practices, and/or representations, or embezzlement by converting property with which Defendants had been entrusted to Defendants’ own use with fraudulent intent to deprive the owner of property.

Count 6 alleges Defendants Officers, Clear, and Mendez collectively and individually engaged in instances of extortion by communicating or transmitting threats to accuse individuals of a crime with the intent thereby to obtain things of value and/or to wrongfully compel individuals to retain Defendant Clear as an attorney and refrain from retaining any other attorney, against their will.

Count 6 alleges these actions are incidents of racketeering as defined by New Mexico law Defendants Officers, Clear, and Mendez engaged in this pattern of racketeering activity in order to acquire or maintain, directly or indirectly, an interest in or control of an enterprise.

Count 6 alleges the Defendant Officers, as employees of Defendant City, conducted or participated, directly and/or indirectly, in the conduct of Defendant City’s affairs by engaging in a pattern of racketeering activity. It is alleged the Defendants Clear and Mendez, as persons who received the proceeds of a pattern of racketeering activity in which they participated, used or invested some part of those proceeds in the establishment or operation of an enterprise.

Count 6 alleges  Defendants Clear and Mendez, as persons employed by or associated with an enterprise, conducted or participated, directly and/or indirectly, in the conduct of the enterprise’s affairs by engaging in a pattern of racketeering activity.  Defendants, including Defendant APD Chief Harold Medina, each conspired with and amongst each other to violate New Mexico law.

On October 4, the Albuquerque Journal published on its front page  the following news story:

HEADLINE: Journal Executive Director Resigns Following Shoplifting Incident In Rio Rancho

The Journal’s executive editor resigned on Thursday after being released from jail on a shoplifting charge in Rio Rancho.

Publisher William P. Lang announced Thursday that Patrick Ethridge “is no longer employed by the Albuquerque Journal.”

“This has been an unfortunate and confusing time for all of us,” Lang said in a statement. “Patrick is a talented writer and hard-working editor, but given the circumstances, moving forward without him was our only realistic course of action. We are grateful for his significant contributions during his short tenure here.”

Ethridge became executive editor and vice president of the Journal on May 30, 2023. With 26 years of experience with newspapers, Ethridge’s most recent role before the Journal was as editor and publisher of the Beatrice Daily Sun in Nebraska.

Lang placed Ethridge on mandatory leave on Sept. 27 after he pleaded guilty to a misdemeanor shoplifting charge from an Aug. 24 incident at a Walmart in Rio Rancho.

On Sept. 25, a Rio Rancho Municipal Court judge sentenced Ethridge to 90 days in the Sandoval County Detention Center with 80 days suspended.

The Journal was not made aware of the allegations against Ethridge until he had already been booked into jail on a 10-day sentence.

Police said Ethridge allegedly skip-scanned more than $100 worth of items in the Walmart self-checkout — pretending to scan items without paying, according to police. 

Although he initially pleaded guilty, on Thursday Ethridge withdrew that plea and pleaded no contest before being released from jail.

https://www.abqjournal.com/news/journal-executive-editor-resigns-following-shoplifting-incident-in-rio-rancho/article_88b6397e-81cd-11ef-bf52-274d8e0aa3ec.html#tncms-source=home-featured-7-block

COMMENTARY AND ANALYSIS

There is little doubt that the arrest and jailing of Patrick Ethridge was a major embarrassment to the Albuquerque Journal as was the fact that he managed to  keep the matter quiet from the Albuquerque Journal  for at least a month. Over the years there have been news reporters working for papers who were immediately discharged for DWI and even disorderly conduct.  The resignation of Patrick Etheridge and the circumstances surrounding the charges made his departure inevitable. Below is a link to a related blog article that essentially predicted the result.

Criminal Complaint Filed Against Albuquerque Journal Editor Revealed; Defects In Complaint Noted; All Defenses Waived With Guilty Plea; “The Man Who Represents Himself Has A Fool For A Client”

On September 28 and 29, the following news story was published by the Albuquerque Journal:

“The Albuquerque Journal’s editor in chief is on leave after pleading guilty to a shoplifting incident at a Walmart in Rio Rancho last month.

Patrick Ethridge, 47, was charged with misdemeanor shoplifting on Aug. 24.

Ethridge pleaded guilty on Wednesday morning and Rio Rancho Municipal Court Judge Michael Gibson immediately sentenced him to 90 days in jail, with 80 days suspended. 

Ethridge is currently serving a 10-day sentence at the Sandoval County Detention Center. Under New Mexico law, a petty misdemeanor is punishable by up to six months in jail and/or a $500 fine.

Ethridge’s attorney did not respond to a request for comment.

“I am saddened to announce that, effective immediately, I am putting our Executive Editor, Patrick Ethridge, on a mandatory leave of absence,” Journal Publisher William P. Lang said in a statement Friday. “We don’t know or understand all the details yet, but were shocked to learn that he has been charged with shoplifting and sentenced by a Municipal Judge in Rio Rancho, where he is currently serving ten days.”

Lang added, “At the Albuquerque Journal, we believe in being transparent, and holding people to a higher standard, including ourselves. We appreciate your support and concern, and will report more information when it is clear to us.”

Ethridge became executive editor and vice president of the Journal on May 30, 2023.

With 26 years of experience with newspapers, Ethridge’s most recent role before the Journal was as editor and publisher of the Beatrice Daily Sun in Nebraska.

On Aug. 24, Rio Rancho police responded to a shoplifting at the Walmart Supercenter at Unser and Southern, according to a criminal complaint filed in Municipal Court. Store security told police that two boys were “acting disorderly around the store, knocking over displays and concealing items.”

Police said officers identified the boys as Ethridge’s sons and found the family in the self-checkout area and “advised them of the allegations.” Officers watched surveillance video, which showed the boys opening energy drinks, drinking some and putting them on the shelf again.

While reviewing the footage, officers saw Ethridge “skip scanning” items — which means pretending to scan items through self-checkout without paying, according to the complaint. Officers said Ethridge would “scan some items and not others.”

“The sum of all unpaid merchandise, including the energy drinks the boys consumed, was $104.20,” according to police.

On Thursday, Ethridge’s attorney, filed a motion to withdraw his guilty plea and said he had initially pleaded guilty “wanting to get this case over with as expeditiously as possible” and “in spite of the fact that he did not intentionally steal any items.”

In the motion, Ethridge said he didn’t know the items had not been scanned and “asked to pay for the unscanned items.”

“The store refused to do this and pressed charges of shoplifting against Mr. Ethridge instead,” according to the motion.”

https://www.abqjournal.com/news/albuquerque-journal-editor-on-leave-after-shoplifting-charge-in-rio-rancho/article_fa04ec36-7d24-11ef-9d33-0bb7c1229ce8.html

REVIEW OF CRIMINAL COMPLAINT FILED

On October 2 the political blog “New Mexico Politics With Joe Monahan” reported that a Criminal complaint was filed on August 26 in Rio Rancho Municipal Court in Sandoval County by Rio Rancho Police Officer Marcus Packer charging Patrick Ethridge with the single crime of SHOPLIFTNG. Monahan corrected his September 29 blog article where he erroneously reported that Rancho Municipal Court Judge Robert Cook sentenced Etheridge to 10 days in jail when it was in fact Rio Rancho Municipal Court Judge Michael Gibson who handled the case and imposed the sentence.

The criminal complaint states in part that on or about August 24, 2024, the defendant committed the crime of SHOPLIFTING.  The criminal complaint provides a detailed factual narrative of what forms the basis of the charge and states:

“On August 24^th, I, Officer Marcus Packer of the Rio Rancho Police Department was notified by RRPD Dispatch to proceed to the location of 901 Unser Blvd SE, in Rio Rancho, New Mexico. Dispatch advised the call for service was in reference to an active shoplifting incident. The calling party was Wal-Mart Asset Protection (AP). AP advised there were two young boys inside of the store, described as approximately 10 years of age, one boy was wearing a black shirt, and the other was wearing a Chicago Bulls jersey over a grey hoodie. The boys were reportedly acting disorderly around the store, knocking over displays and concealing items.

I arrived on the scene and observed the described juveniles to be in the self checkout section, alongside their parents. I made contact with the family and advised them of the ongoing investigation.

Accompanied by the family, I proceeded to the AP office to view surveillance footage of the allegations.

The two boys were identified as [NAME REDACTED BECAUSE OF AGE] and  [NAME REDACTED BECAUSE OF AGE] Etheridge, both born [birthdate redacted]. The farther was identified as Patrick Etheridge.

During my contact with [NAME REDACTED] and [NAME REDACTED] they were not in possession of any merchandise. Asset protection advised the boys were observed taking a can of Monster Energy drink each, drinking from the item and then placing the drinks back on the shelf. (Video footage will be uploaded to Axon Evidence when AP is able to obtain the surveillance).

After reviewing surveillance footage, Patrick was observed to be “skip scanning” items while located at the self check out. Patrick would scan some of the items but not others, leaving several items unpaid for. (Video footage will be uploaded to AXONE Evidence when AP is able to obtain the surveillance).  The sum of all unpaid merchandise, including the energy drinks the boys consumed, was $104.20.”

NO ARRESTS MADE ON DAY OF INCIDENT

Patrick Etheridge and his two sons and spouse were not arrested nor taken into custody on August 24, the day of the incident, but were released by the investigating officer on their own reconnaissance.  The criminal complaint was filed a mere two days later on August 26.

The criminal complaint identifies Patrick Etheridge as the sole defendant charged, giving his home address in Rio Rancho, his height, weight, color of hair, color of eyes. The criminal complaint does not provide an arrest date. The complaint does provide a case number showing the case was filed in Sandoval County, Rio Rancho Municipal Court.

The criminal complaint does not identify leaving blank the lines for  Social Security Number,  STN#, Arrest Date, Drivers License #, Citation #, Arrest #, Docket#. The date of filing is August 26 as reflected by the  Court Stamp with  Valerie Montoya identified  as clerk of the court. There is a handwritten note in the upper right hand corner of the complaint that says “PLEASE SUMMON” ostensibly to indicate to the court clerk to issue a summons ordering the Defendant to appear on a specified date, time and courtroom.

The link to review the criminal complaint is here:

 https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhqE1EU-MweyoopvLcelQqe9Di5TzITeMRU0Q_gUAXb-NZOhB0_bQyUiXPHVD0XJgAHMM-PnLFVmSTA-NfSrsa2r7CIqIG4jJqO4PGGpQLLWIuB6QbN-2W5Ilnpfob-XI162xlX2MrvR5BzZNm3Mn-tIeTLA5UnRbcgtLUxWbtU6MhC_uxhEKJV/s2795/IMG_5541%202.jpg

ARRAIGNMENT,  ENTRY OF GUILTY PLEA AND IMMEDIATE SENTENCING

The criminal complaint indicates that a Summons was issued requiring that Patrick Etheridge appear in Rio Rancho Municipal Court ostensibly for an arraignment on the charges and to enter a  plea of  “not guilty” or “guilty” and determine conditions of release and to set a date for trial or sentencing.

Patrick Etheridge did not retain an attorney to represent him on September 25.  On September 25, Etheridge appeared before Municipal Court Judge Michael Gibson without an attorney and he plead guilty to the single charge of SHOPPLIFTING. No pre-sentence report was ordered by Judge Gibson and the judge immediately sentenced Ethridge to 90 days in jail, with 80 days suspended with 10 days in jail. According to Sandoval County Jail Detention Records, Etheridge was taken into custody at 10:17 AM on Wednesday morning September 25 immediately after the hearing.

COMMENTARY AND ANALYSIS

Attorneys often point to a famous Abraham Lincoln quote when discussing defendants who try to represent themselves in a court of law. Lincoln said: “The man who represents himself has a fool for a client”. This entire news story involving the Albuquerque Journal’s Editor in Chief can be described as somewhat bizarre on a number of levels and it appears to be a classic example of what Abraham Lincoln was talking about when one tries to represent themselves in a court of law even for what many would think is a very minor criminal offense.  Whenever there is even the slightest possibility for jail time, defendants need to seek legal representation.

POLICE OFFICER INVOLVED PROSECUTIONS

Under New Mexico law, shoplifting is a petty misdemeanor and is punishable by up to six months in jail and/or a $500 fine. A law enforcement officer has 100% discretion to make an arrest for a petty misdemeanor that they actually witness occurring in their presence. Where the offense does not occur in their presence, they have the option to gather evidence of the crime and to file a criminal complaint, which was what happened in this case. Such cases as misdemeanor and petty misdemeanor cases are referred to as Police Officer Prosecution cases.

The charging law enforcement officer bears the entire responsibility to prosecute the cases without the assistance of a city attorney or assistant district attorney. The officer must call witnesses, disclose evidence and present the case at trial and  assume  the same  duties and responsibilities as a prosecuting attorney and follow the rules of criminal procedure and rules of evidence. The charging officer is required to attend all court hearing, including arraignment, motion hearings and the trial.

Failure of the officer to appear at any scheduled hearings can result in the case being dismissed for failure to prosecute which happens all the time in Bernalillo County Metro Court. Once a defendant is convicted of a charge, the Court has the authority to request a pre-sentence report from the probation department who make recommendations as to what is an appropriate sentence given the facts and circumstances of the case and the background of the defendant.

DEFECTS IN CRIMINAL COMPLAINT

The criminal complaint filed against Patrick Etheridge appears to be flawed for a number of reasons which would make it subject to a possible dismissal had he sought one.  The criminal complaint does not identify and leaves blank the lines for Social Security Number,  STN#, Arrest Date, Drivers License Number, Citation number, Arrest number and  Docket number.

The overwhelming majority of the charging narrative deals with the disorderly conduct of the minor children, yet they were not charged and no reason was given. The criminal complaint states the officer “arrived on the scene and observed the described juveniles to be in the self checkout section, alongside their parents. I made contact with the family and advised them of the ongoing investigation. … Accompanied by the family, I proceeded to the AP office to view surveillance footage of the allegations.   

It is the very last paragraph of the narrative that describes the alleged criminal conduct of the defendant and it  is based upon a video that could be subject to varying interpretations and  speculation as to what was actually going on.  There is no supporting documentation attached as an exhibit to establish what was and was not scanned at the checkout stand.  There is no representation that the scanner was in full working order.  According to the Journal news report and the motion filed by his attorney, Ethridge initially pleaded guilty “wanting to get this case over with as expeditiously as possible” and “in spite of the fact that he did not intentionally steal any items.” Ethridge said in his motion he didn’t know the items had not been scanned and “asked to pay for the unscanned items.”

The charging officer does not identify the other parent by name, he states the “entire family” was taken to view the surveillance video.  He does not disclose any admissions of guilt or exculpatory comments or explanations made to him by any of the family members or by Etheridge himself. No receipt appears to have been retrieved as what was in fact scanned for  purchase by the family. It appears the officer made no arrest that required giving Miranda Warnings including advising the family of their right to remain silent and that they had the right to an attorney, but they were nonetheless the target of an investigation.

The most glaring defect in the complaint is that it charges Ethridge with shoplifting by alleging “The sum of all unpaid merchandise, including the energy drinks the boys consumed, was $104.20.”  There is no indication that the goods, either food or clothing, were seized nor tagged into evidence by Rio Ranch Police Officer Marcus Packer, yet he alleges a total value down to the penny.  The complaint does not include an inventory of items allegedly taken outlining the cost of each item to arrive at the $104.20 value alleged. Without seizure of the goods, it is sure speculation as to value of what was in fact shoplifted.  Had the case gone to trial, the actual value of what was stolen would have to have be proven as an element of the offense and beyond a reasonable doubt.

There appears to be extenuating circumstances around the incident itself involving a parent or parents unable to exercise full and complete control of 10 year old children who were out of control and who were alleged to have  engaged in disorderly conduct.  The extent to which Etheridge was actually paying attention or distracted by his 10 years old boys as to what merchandise he was purchasing is called into question.

PROPIETY OF SENTENCE

Rarely are people jailed for a first misdemeanor offense, if at all, for shoplifting and they are usually placed on probation with a suspended sentence. Ethridge has no prior convictions, and the offense is a “none violent crime”.  Notwithstanding, the judge imposed a 10 day sentence in jail, suspended the remaining 6 months, and suspended the $500 fine. The court could have ordered “community service” without jail time, or a deferred sentence for a period of probation and imposed a reduced fine.

When Ethridge pleaded guilty to the charge before Rio Rancho Municipal Court Judge Michael Gibson he was sentenced to a shocking 10 days for the petty misdemeanor. Nothing has been reported as to why Judge Gibson did not order a pre-sentence report which would have made recommendations on what type of sentence was appropriate given the defendants criminal record and background.

There is no report that the charging officer appeared in court on August 26 for the arraignment or for trial that would also have allowed plea negotiations with the charging officer which could have included a lesser charge and reduced sentence.  Had the officer not appeared, Etheridge had the right to ask that the case be dismissed.  By simply pleading guilty to the single charge of shoplifting, Patrick Etheridge waived his right to a trial and any and all defenses he had.  He essentially threw himself on the mercy of the court.

ATTORNEY RETAINED AFTER THE FACT

Only after Ethridge plead guilty to the charge and was sentence to 10 days in  jail did he retain the services of an attorney. He is represented by prominent criminal defense attorney Todd Bullion who was co-counsel with criminal defense  attorney Jason Bowles. The attorneys defended Hannah Gutierrez Reed, the armorer on the movie set of Rust who was convicted of involuntary manslaughter and sentenced to 18 months in jail in the fatal shooting of a cinematographer by Alec Baldwin on the Rust western movie set.

No details have been given as to exactly why Patrick Etheridge did not hire an attorney at the time he was charged and why no plea deal was struck for a suspended sentence nor why such a harsh sentence was imposed.  Did he enter a guilty plea to protect his 10-year-old sons and perhaps his spouse to any degree? Did the charging officer make any representations or imply to any extent he would not charge family members in exchange for Ethridge to assume all responsibility?

A “Motion to Withdraw”  the guilty plea has now been filed while Ethridge sits in jail. The 10 day sentence will expire on October 4 and he will be released. It is clear he will stay in jail before the court has time to schedule a hearing on the motion.

A major  question that has been raised is how did the shoplifting arrest of the top editor of the Albuquerque Journal stay secret for so long?  The incident occurred on August 24, but it was not reported on by the Albuquerque Journal until September 28. Additionally, the local TV news stations have yet to post any news story on their internet web pages.

There is little doubt that the arrest and jailing of Patrick Ethridge is a major embarrassment to the Albuquerque Journal. Over the years there have been news reporters working for papers who were immediately discharged for DWI and even disorderly conduct.  The question that remains is will Patrick Etheridge step down or be terminated, or will the Albuquerque Journal accept an apology from Patrick Ethridge and move on as he seeks to clear his name and continue with his employment?