On April 17, New Mexico Gov. Michelle Lujan Grisham announced she was calling state legislators into a Special Session starting July 18 with a focus on addressing public safety proposals.  On June 6, Governor Michelle Lujan Grisham’s Office outlined to the Court, Corrections and Justice Interim Committee five public-safety measures she wants legislators to address during the July 18 special session of the New Mexico legislature. Three of the measures are:

1. A bill that would strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison,
2. A bill would to prohibit pedestrians from occupying highway medians, on-ramps, and
3. A bill that would require law enforcement agencies to report certain monthly crime incident reports and ballistic information.

The remaining two measures relate to criminal competency laws and involuntary treatment for people with mental illness.  The two measures can be described as follows:

The first measure would make changes to the state’s criminal competency law. The bill would send criminal defendants who are found incompetent to stand trial to a mental health or behavioral health treatment program. Supporters say there are far too many suspects who are arrested, deemed incompetent to stand trial, and then released back on the streets only to commit more crimes. It’s a bill designed to address in part the so-called “revolving door” where defendants are arrested only to be found incompetent to stand trial and then released.  The bill, which did not make it very far in the previous legislative session, was  at the top of the special session agenda. The legislation is intended to strengthen a 2016 law and a program originally signed into law by former Governor Susana Martinez that allows district judges to order involuntary treatment for people with severe mental illness who have frequent brushes with law enforcement. It involves a program called the “Assisted Outpatient Treatment” (AOT).

The second measure would expand a program that mandates involuntary treatment for people with mental illness. The bill is an assisted out-patient treatment bill proposal that would allow a judge to mandate out-patient treatment, including involuntarily commitments. It would allow individuals, whether first responders, family members or community members who work with mentally ill individuals on the streets to request involuntary out-patient treatment.

GOVERNOR MLG WITHDRAWS INVOLUNTARY COMMITMENT BILL FROM JULY 11 SPECIAL SESSION 

On June 27, Governor Michelle Lujan Grisham’s office announced she has scrapped the proposal to expand court-supervised outpatient treatment for people with mental illness for debate during the July 18 Special Session.

On June 26 a substitute proposal was presented to the Court, Corrections and Justice Interim Committee interim legislative committee that would broaden eligibility for someone who could be ordered by a judge into involuntary mental health treatment. Representative Andrea Reeb, R-Clovis, responded that a shortage of behavioral health treatment options is an underlying problem that makes any changes in law difficult to enforce.

Reeb is a prosecutor in the 9th Judicial District.  She recently had difficulty finding in-patient treatment for a serial arsonist in her district. Reeb said this after hearing the new proposal:

“We don’t really have any facilities in our area to treat anybody except as an outpatient. … You can divert people all you want to different things, but you don’t have places to send them”.

The bill the governor withdrew was intended to strengthen a 2016 law that allows district judges to order involuntary treatment for people with severe mental illness who have frequent brushes with law enforcement. It would have required each of the state’s 13 judicial districts to create a program called Assisted Outpatient Treatment overseen by a civil court judge.

Holly Agajanian, the governor’s chief general counsel, told lawmakers that the governor was responding to concerns from legislators that the AOT bill was a “big lift” for a special session.  Agajanian told members of the interim Courts, Corrections and Justice Committee this:

“What we’ve decided instead to do is condense the goals here. [The substitute measure will take] small, necessary steps to help those people who are either a true danger to themselves or an extreme danger to others”

The Governor’s Office is proposing to broaden eligibility for involuntary commitment by tweaking definitions in existing law. The existing involuntary commitment law essentially limits commitment to people who are suicidal. The proposed change would broaden the definition of “harm to self” and “harm to others” to cover more people eligible for involuntary treatment.

Under the new definition, “harm to self” would include a person unable “to exercise self-control, judgment and discretion in the conduct of the person’s daily responsibilities and social relations” or “to satisfy the person’s need for nourishment, personal or medical care,” housing and personal safety.

The proposed definition of “harm to others” would cover a person who “has inflicted, attempted to inflict or threatened to inflict serious bodily harm on another” or has taken actions that create “a substantial risk of serious bodily harm to another.” Harm to others could also apply to someone who has engaged in “extreme destruction of property” in the recent past.

The governor has also proposed a criminal competency bill that would place certain requirements on judges and prosecutors when a criminal defendant is found incompetent to stand trial and charges are dismissed. The proposed bill would require district attorneys to file a petition seeking involuntary civil commitment for certain criminal defendants who are found incompetent to stand trial. The requirement would apply to people charged with serious violent felonies or crimes that involve the use of a firearm. It would also apply to people who had been found incompetent to stand trial at least twice before. Judges would be required to order the person jailed for up to seven days while a petition for involuntary commitment is filed.

https://www.abqjournal.com/news/governor-pulls-bill-to-expand-involuntary-treatment/article_bc1fa51a-34df-11ef-ae36-4f7a022267af.html

https://www.petedinelli.com/2024/06/14/republican-legislative-leaders-slam-gov-mlgs-proposal-to-strengthen-supervised-outpatient-treatment-program-for-people-with-severe-mental-illness-as-undoable-in-special-ses/

NEED FOR SPECIAL SESSION CALLED INTO QUESTION

During a meeting of the Court, Corrections and Justice Interim Committee both Democrats and Republicans asked why a special session was needed to be called for legislation that they believed could or should be addressed during a regular session of the legislature.  Even Democrats took issue with Governor Lujan Grisham’s special session proposals.

Mesilla Democrat State Representative Micaela Lara Cadena said it was hard for her not to feel that the Governor’s proposals are more about “political wins.”  Cadena said this:

“I was part of tabling or not passing bills my good friend Representative (Bill) Rehm brought. We put them in the dumpster and now we’re slapping some Democrat’s names on them and plagiarizing Representative Rehm here….Folks have been trying to have these conversations for a long time now and very quickly in a short summer we have to go because New Mexico is in crisis?”

Several members of the committee expressed concern about the portion of the assisted out-patient treatment program proposal that would allow individuals who have a relationship with the individual suffering mental health problems to seek a process by which the individual could be placed into treatment involuntarily.

Albuquerque Democrat State Senator Antoinette Sedillo Lopez, a licensed New Mexico attorney, said she was worried the mandatory mental health commitment law changes could violate an individual’s constitutional rights.

Albuquerque Democrat State Senator Katy Duhigg said she didn’t feel she had been presented with “great data that this is a solution that solves this problem and that is data I’d want to see before passing this legislation.” Duhigg said she found data from other countries with a quick online search that suggests that involuntary mental health treatment could lead to worse outcomes, rather than better ones. Duhigg asked why the state needed legislative changes in order to establish the assisted outpatient treatment program in every county. In response The Governor’s Chief General Counsel Holly Agajanian said this in response:

“I have to go back to the fact that I don’t suggest that they don’t have the authority to do it on their own. I’m suggesting, it hasn’t been done. We need to require it.”

New Mexico State Representative Christine Chandler, District 23 represents Los Alamos, Sandoval & Santa Fe counties. She chairs the House Courts, Corrections and Justice Committee. Representative Chandler said this about the Special Session:

“I wouldn’t call it optimism, I think maybe you might say people are hopeful we’ll have a productive session. …. You’ll see from our agenda that we’re definitely putting in the work. I am approaching it, and I think my colleagues are approaching it in good faith, and with a willingness to try to resolve the issues.”

Chandler asked if the legislature would be mandating that the judicial branch set up these assisted outpatient treatment programs.  Agajanian said the proposal breaks up the areas for the treatment programs based on the judicial boundaries of the state court system because those are smaller than regional boundaries and that would make it easier for an officer to take an individual suffering mental health problems to treatment rather than to jail.  Agajanian also said the court would have a memorandum of understanding with the county and either Medicaid, private insurance or indigent funds would pay for the treatment.

NO TREATMENT FACILITIES MAKES IT COMPLICATED

Chandler said the Assisted Outpatient Treatment measure expanding the program and allowing involuntary treatment for people with mental illness is by far the most complex measure.  She noted the original law took three years to pass, and now Governor Lujan Grishma is asking state lawmakers to make significant changes to the law in just a few weeks.  She noted there is also the looming issue when it comes to behavioral health treatment in New Mexico itself.

Representative Chandler said this:

“[The legislation] is aimed at providing an avenue for people who are concerned about individuals with serious mental illness. … I believe the governor is interested in maybe loosening it up a little bit, so that it will be easier to encourage them and require them to get treatment. It’s not a voluntary program, it is requiring these individuals who meet the criteria to get treatment. … The concern of many of us, me included, is that we can set up these laws, you know, we can work very hard to make the best possible law that we can. But if there aren’t the behavioral health resources and professionals to assist these people, it’s all for naught.”

Chandler said state lawmakers seems to understand the governor’s motivations to expand behavioral health resources, and they are giving it their best effort, but she’s not fully confident it’ll get done during the special session. She said this:

“I would hate to think there would be no bills, but there certainly is that possibility. …  I don’t think it will be, you know, all the time will be wasted, because I think we’ll have some good discussions that will lay the groundwork for the 60 day.”

Chandler said the committee will meet again at least twice before the special session begins.

https://www.kob.com/new-mexico/legislators-prepare-to-tackle-complex-public-safety-proposals-during-special-session/

REPUBLICAN LEADERS VOICE OPPOSITION

On Monday, June 10, three Republican House leaders sent a letter to Governor Michelle Lujan Grisham criticizing her decision to make changes and strengthen behavioral health legislation in a special session calling the legislation too complex for a Special Session.

In a letter signed by House Republican Leader Rod Montoya, House Republican Whip Alan Martinez and Republican Caucus Chair Gail Armstrong they call the governor’s plan “undoable.”  The Republican leadership in the letter tell the Governor:

“Making such major changes to these highly complex systems during a two- or three-day special session is simply not good public policy and will undoubtedly result in many unintended consequences due to the lack of needed consideration and debate.”

The Republican lawmakers criticize what they describe as a lack of analysis of the cost of the proposals and “no apparent plan as to how many behavioral health service providers will be needed.”  They also questioned the need to revise existing statutes.

THE VIOLENT CRIME CRISIS IN NEW MEXICO IS REAL

There is no doubt that New Mexico is indeed in the midst of a violent crime crisis. The statistics bear this out.

According to the Rand Corp. think tank, New Mexico’s firearm ownership and fatality rates are among the nation’s highest. Over 37% of adults in the state lived in a household with a firearm which is 5% higher than the national average

On September 28, 2023, the New Mexico Department of Health released its “Comprehensive Report on Gunshot Victims Presenting at Hospitals in New Mexico.”  The report spans the time period from 1999 to 2023. The report provides a detailed analysis of firearm-related violent deaths and injuries in New Mexico. It encompasses data from various sources, including New Mexico’s surveillance systems, state behavioral risk factor surveys, and the Center for Disease Control (CDC) data.

The key findings and conclusions detailed in the report are as follows:

INCREASE IN FIREARM-RELATED DEATHS

• Over the past two decades, New Mexico’s firearm death rates rose from seventh highest nationwide in 1999 to third highest in 2021 with the age-adjusted firearm death rate increasing by 87% between 2010 and 2021.
• While suicide remains the predominant cause of firearm-related deaths, a notable surge of 70% in the homicide rate is driving the overall increase in firearm fatalities.

DEMOGRAPHIC AND GEOGRAPHIC DISPARITIES

• Men of all age groups were found to be at highest risk for firearm-related injuries and deaths.
• Racial/ethnic inequities: Non-Hispanic American Indian, Non-Hispanic Blacks, and Hispanics, experienced substantial increases in firearm injury death rates between 2017 and 2021.
• The Northeast and Metro Health Regions experienced a substantial increase in firearm injury emergency department (ED) visits over the past two years (Northeast: +30%; Metro: +22%).

INCREASED SEVERITY OF HEALTH OUTCOMES OF FIREARM INJURY

Between 2019 and 2022, there was a 16% increase of patients being admitted to intensive care and a 61% increase in patients being transferred from ED to the operating room

SIGNIFICANT INCREASE IN ALCOHOL AND SUBSTANCE USE CONTRIBUTING TO INCREASED FIREARMS DEATHS

• Between 2019 and 2020, there was an 89% increase in alcohol dependence for homicides involving firearms. Additionally, from 2018 to 2020, there was a 475% increase non-alcoholic substance dependence for homicides involving a firearm.
• Between 2018 and 2020, there was an 85% increase in alcohol dependence and a 120% increase in non-alcoholic substance abuse for suicides involving a firearm.

LOADED AND UNLOADED FIREARMS AS  RISK FACTOR FOR FIREARM INJURY AND DEATH

• In 2022, 37% of New Mexican households have a firearm, 15% of New Mexican households have a loaded firearm, and 8% have a loaded and unlocked firearm.
• In 2022, households with a firearm and a child less than 18 years old, 38% have a loaded firearm and 15% have a loaded and unlocked firearm.

RISING ECONOMIC IMPACT OF FIREARM INJURY TO NEW MEXICO HEALTHCARE SYSTEM

• The annual estimated overall cost of firearms injuries and deaths in New Mexico is $6 billion or $2818 per capita.
• Medicaid claims for firearm injuries in New Mexico increased by 85% from $6.5 million in 2018 to $12 million in 2022 (Figure 12).
• Between January 2023 and September 2023, Medicaid expenditures totaling $5.6 million have been spent on firearm injuries in New Mexico.
• Medicaid was the primary payer for 76% of gun injury hospital discharges in 2022 In 2021, the Department of Health with support of the CDC, developed a Statewide Strategic Plan for the Prevention of Firearm Injury (FASTER Report FINAL (unm.edu)) which is an important supplement to this document. Demographic Data on Firearm Injury.

 HEALTHCARE OUTCOMES FOR GUNSHOT VICTIMS

Gunshot injuries have wide-ranging and severe implications on individual well-being, often necessitating immediate and extensive medical care. Delving into the healthcare outcomes for gunshot victims reveals a concerning picture:

SEVERITY OF INJURIES

• Between 2019 and 2022, the number of patients in New Mexico’s trauma centers with firearm injuries has increased by 39%.
• The number of trauma center patients with firearm injuries being discharged from the ED to the intensive care unit has increased by 16%
• There has been a concerning 61% increase in gunshot injuries that required surgical interventions
• New Mexico ranked seventh highest in the U.S. in 1999 and 2011. The rank increased to third highest in the U.S. in 2021
• New Mexico has consistently had a larger age adjusted1 firearm death rate than the rest of the country. Moreover, the age adjusted firearm injury death rate for New Mexico has also increased at a higher rate compared to the U.S. For example, New Mexico’s firearm injury death rate was 48% higher than the U.S. in 2010, compared to being 90% higher in 2021.

TYPE OF FIREARM AND AMMUNITION INVOLVED IN FIREARM DEATHS

The following data was pulled from pooled data in the New Mexico National Violent Death Reporting System (NM VDRS) from 2018 to 2020:

TYPE OF FIREARM IN DEATHS

• Handguns were implicated in 77% of violent firearm-related deaths (Figure 6).
• Rifles and shotguns were involved in 7% and 6% of such incidents,

COMMON FIREARM MANUFACTURERS IN DEATHS

• An unknown manufacturer was noted in 61% of cases of the New Mexico National Violent Death Reporting System (NM VDRS) pooled data from 2018 to 2020.
• Smith & Wesson firearms were linked to 8% of violent deaths, followed by Ruger (6%), Glocks (5%), and Taurus (4%).

AMMUNITION CALIBERS IN VIOLENT DEATHS

• The 9-millimeter (mm) caliber was the most prevalent, associated with 25% of violent firearm deaths. PAGE 7
• Other notable calibers included .38 (10%), .22 (9%), .45 (8%), and .40 (7%)

NUMBER OF VIOLENT CRIMES IN NEW MEXICO

According to FBI statistics, the number of violent crimes in New Mexico for the last 11 years has been reported as follows:

•  2012: 11,660
• 2013: 12,990
• 2014: 12,465
• 2015: 13,672
• 2016: 14,585
• 2017: 16,300
• 2018: 17,637
• 2019: 17,302
• 2020: 16,393
• 2021: 17,373
• 2022: 16,494

According to data released by the New Mexico Department of Health and the Centers for Disease Control and Prevention, from 2010 to 2021, the age-adjusted death rate from firearms rose by 87%. In the same time span, New Mexico rose from the 7th to the 3rd highest rate of firearm deaths in the country.

Overall, there was a 34% increase in overall firearm fatalities from 2018 to 2021, with a 70% increase in homicides with a firearm in the same time period.

Not only has death from firearms in New Mexico increased, but so have injuries related to firearms. From 2018 to 2022, the rate of people visiting the emergency room from firearm related injuries rose 35%.

According to the latest stats from the FBI, there were 11,550 instances of shoplifting In New Mexico. It’s a trend that’s been increasing since 2018.

JUVENILE CRIME

Crime within the juvenile population has been the subject of recent news reports where  it is being said crime among the juvenile population is rising. However, the data that is available doesn’t paint a clear picture one way or another. From 2018 through 2022, there was a steady DECLINE in the number of children referred to juvenile justice services. 80% of those each year were delinquent referrals, meaning it was a crime committed under the law if committed by an adult.

While the trend of juvenile referrals has fallen, so have the number of referrals for detention.  In 2018, there were 3,012 children referred for detention. That number fell to 1,185 in 2022. But that doesn’t paint the whole picture. While the total number of referrals has fallen, the percentage of referrals approved for detention has risen.

Despite the downward trend of juvenile justice referrals, crime amongst juveniles was a focus of the governor following the issuance of the public health order in 2023. Since Sept. 2023, 160 juveniles have been detained where a gun was present. Each month since the governor’s directed focus on juvenile crime, the number of juveniles detained has fallen.

https://www.koat.com/article/new-mexico-crime-stats-town-hall/60513537

FIREARM INJURY – EMERGENCY ROOM VISITS

Emergency room firearms injuries are on the uptick in New Mexico  and are reported as follows for 5 years of available data:

• 2018: 968
• 2019: 914
• 2020: 1,129
• 2021: 1,263
• 2022: 1,306

 https://www.koat.com/article/new-mexico-crime-stats-town-hall/60513537

Following the death of a child near Isotopes Park in 2023, Governor Michelle Lujan Grisham issued a public health order that was aimed to reduce gun violence. Data released by governors office from September 2023 – March 2024:

• TOTAL ARRESTS: 7,649

FELONY ARRESTS: 4,701 (61.46%)

MISDEMEANOR ARRESTS/ WARRANTS:  2,948 (38.54%)

• FIREARMS SEIZED: 614
• TRAFFIC CITATIONS: 9,669

COMMENTARY AND ANALYSIS

It is extremely disappointing that since April 17 when Governor Michelle Lujan Grisham called for a special session, and with just 10 days before the July 18 Special Session, that the Governor and the New Mexico legislature leadership have failed to come to any consensus whatsoever on substantive public safety legislation for quick enactment by the legislature on July 18. The failure is a reflection of failed leadership.  The Governor’s proposed changes to the state’s mental health laws have some merit. However, to be perfectly blunt, the measures fall very short on actually accomplishing much when it comes to public safety given the fact the state is seriously deficient when it comes to mental health care facilities and mental health professionals and her mental health care proposals contain nothing with respect to funding.

WITHDRAW OTHER 3 MEASURES ON SPECIAL SESSION AGENDA

There are 3 other measures that the Governor wants the Specials Session to enact apart from the mental health proposals.  All three of those measures are leftovers from the 2024 legislative session.  The 3 additional measures proposed by the Governor are ones that cannot be consider as a having a real sense of urgency and for that reason alone  she should withdraw those measures.  All 3 should be handled in the regular session for the following reasons:

The bill that would strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison is one that standing alone will not make that much of a difference.  During the Governors tenure, the legislature has in fact increased felony criminal penalties  upwards of 6 times.

The bill to prohibit pedestrians from occupying highway medians, on-ramps and exit ramps is directed at the unhoused and panhandling in general and  is an exercise in futility. Such laws are difficult to enforce and law enforcement needs to concentrate on far more serious crime. Albuquerque has enacted such an ordinance, as has other communities, and it goes unenforced as panhandlers and the unhoused continue to occupy medians and on ramps and as the ACLU is successfully challenge  the laws in court as being unconstitutional.

The bill that would require law enforcement agencies to report certain monthly crime incident reports and ballistic information could likely be accomplished by executive orders and does not necessarily need legislation. Better cooperation between law enforcement is what is needed.

OMNIBUS GUN CONTROL AND VIOLENT CRIME SENTENCING ACT

Without any consensus on any legislation, the July 18 Special Session will be a waste of time and taxpayer funding and for that matter somewhat of an embarrassment for both the Governor and the New Mexico Legislature. Governor Michelle Lujan Grisham should concede to reality that the legislature is not at all interested in cooperating with her and cancel the July 18 Special Session.

If Governor Lujan Grisham and the New Mexico Legislature are truly concerned about the New Mexico’s violent crime crisis, both need to regroup and take and even more aggressive approach as they prepare for the 2025 New Mexico legislative session. They should take the next 6 months and work on building a consensus on the enactment of “Omnibus Violent Crime Sentencing And Gun Control Act.”

The message that must be sent out loud and clear by our elected officials to violent criminals is that New Mexico has a zero tolerance of violent crimes committed with firearms and the only way to do that is with enhanced sentencings. Also, the availability and proliferation of guns must be recognized as a big part of the states violent crime problem.

CRIME AND PUNISHMENT MEASURES

The following crime and sentencing provisions should be included in the “Omnibus Gun Control And Violent Crime Sentencing  Act”:

As was originally proposed for the Special Session, strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison.

As was originally proposed for the Special Session, enact the changes proposed to the mental health commitment process, but include funding for mental health facilities and  services.

Allow firearm offenses used in a drug crimes to be charged separately with enhance sentences.

Making possession of a handgun by someone who commits a crime of drug trafficking an aggravated third-degree felony mandating a 10-year minimum sentence.

Increase the firearm enhancement penalties provided for the brandishing a firearm in the commission of a felony from 3 years to 10 years for a first offense and for a second or subsequent felony in which a firearm is brandished 12 years.

Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is brandishing  of a deadly weapon in the commission of a felony with enhanced sentences of 5 years for a first offense and for second or subsequent felony in which a lethal weapon other than a firearm is brandished 8 years

Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.

Increase the penalty and mandatory sentencing for the conviction of the use of a fire arm during a road rage incident to a first-degree felony mandating a life sentence.

Update the Children’s Code to deal with charges, increasing penalties and prosecutions of minors as adults as consequences of children using firearms in the commission of violent crimes and aggravated assaults with use of deadly weapon.

Change bail bond to statutorily empower judges with far more discretionary authority to hold and jail those pending trial who have prior violent crime reported incidents without shifting the burden of proof from the prosecution to the defense.

GUN CONTROL MEASURES

Gun control measures that should be included the “Omnibus Gun Control And  Violent Crime Sentencing  Act” would include the the legislation that failed in the 2023 legislative session including an assault weapons ban lawfully regulating the manufacture, possession and sale of weapons of war, most often the gun used in mass casualty events and  prohibiting guns in parks and playgrounds making  it illegal to carry a firearm in county or municipal parks, playgrounds, and their accompanying parking lots.

Call for the repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby, but what is the real rational for allowing side arms and rifles to be carried down the street other than to intimidate others?

Restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms and make it a second-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.

Prohibited magazines with more than 10 rounds.

Prohibited the possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.

Expand the  14-day waiting period for the purchase of any firearm and requiring  a prospective seller who doesn’t already hold a valid federal firearms license to arrange for someone who does to conduct a federal background check prior to selling a firearm.

Established a minimum age of 21 for anyone seeking to purchase or possess an automatic firearm, semiautomatic firearm or firearm capable of accepting a large-capacity magazine.

Ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.

Revised the state’s Unfair Practices Act to target the sale of illegal firearms and parts, allowing the filing of lawsuits to enforce the act.

Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.

Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.

Mandate the school systems and higher education institutions “harden” their facilities with more security doors, security windows, and security measures and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.

The Omnibus Gun Control And Violent Crime Sentencing  Act Omnibus Gun Violence And Sentencing  Act  must include funding for the criminal justice system. This would include funding District Attorney’s Offices, the Public Defender’s Office, the Courts and the Corrections Department and law enforcement departments across New Mexico.

CONCLUSION

Until the Governor and the New Mexico legislature get serious about New Mexico’s gun violence crisis and enact reasonable gun control measures in conjunction with crime and punishment measures, we can expect our violent crime rates to continue to increase and calling Special Sessions a waste of time.

 

On June 17 the Albuquerque City Council voted  on a 6 to 3 vote to  passed a Charter Amendment that would eliminate all runoff elections for Mayor and City Council. It would  mandated that whoever gets the most votes wins with no runoff between the two top vote getters.  Whoever secures the most votes of all the candidates running at the same time wins the election out right.

The charter amendment was sponsored Democrat Councilor Klarissa Peña  and Republican Dan Lewis.  Republican City Councilors Dan Lewis, Brook Bassan, Renee Grout and Dan Champine and Democrat City Councilors Louie Sanchez and Klarissa Peña voted “YES”. Democrat City Councilors Tammy Fiebelkorn, Nichole Rogers and Joaquín Baca voted “NO”.  Mayor Tim Keller immediately vowed he would veto the measure.

Back before 2013, Albuquerque did use a lower threshold for elections. Candidates only needed to win at least 40% of the votes, as well as receive more votes than any other candidate.  Voters then changed the election system to its current configuration of a runoff between the two top vote getters if no one receives the majority vote.

If the Chater Amendment was  approved voters, in a crowded candidate field the prevailing candidate would not have a majority vote but a much less percentage of less than 50% of the vote. Passage of the charter amendment by the city council has been severely criticized as a scheme to dilute the vote to help incumbents and those with high name identification by eliminating voter majority wins. 

On June 17, Common Cause was quick to address the city council vote on social media this way:

“[The Albuquerque City Council]  took us backward by amending an already bad proposal. Rather than lowering the threshold to be elected mayor or city councilor from 50% to 40%, they’ve eliminated any threshold altogether. Candidates under this scheme could be elected with 10% for example. The 6-3 passage of this proposal means, voters will be confronted with a question on this November’s ballot to eliminate run-offs and move to a free-for-all voting process where fringe candidates and special interests will dominate our elections.”

On June 25 New Mexico Secretary of State Maggie Toulouse Oliver wrote Mayor Tim Keller all nine City Councilors voicing her opposition to the proposed charter amendment. She wrote in part:

… . 

“Unlike state and federal elections in which there is a Primary Election that whittles down the pool of candidates, municipal runoff elections with winning majority thresholds help create important mandates for local officials in New Mexico.   I also recognize there are some substantive arguments against the city’s existing runoff structure.  These top-two runoff elections come with hefty price tags, and their timing typically means fewer eligible voters make their voices heard at the ballot box.

… . 

However, although not ideal, the current system is still preferable to the [proposed] charter amendment … . Albuquerque voters already approved the current 50% threshold for winning candidates in 2013, and having candidates receive at least 50% of the total votes provides the public with a clear winner who then has a mandate to lead. Changing the city’s election system to one where a candidate can be elected with a minority of votes is a big step in the wrong direction.”

MAYOR KELLER VETOES  CHARTER AMENDMENT

On July 3, Mayor Tim Keller made good on his word and announced he has vetoed the proposed charter amendment that if approved by voters would have returned municipal elections of Mayor and City Council to “plurality elections.”

Following is Mayor Tim Keller’s July 2  veto message to the City Council:

“After careful legal review, I have identified the following issues with the legislation R-24-47, which I have outlined in detail below. I would first like to point out that there are important discrepancies between the resolution as amended at the City Council meeting on June 17 and the resolution presented to my office from the City Council Clerk.

After adoption of the floor amendment to amend the resolution from 40% to a plurality the following  language was not removed from the original legislation:

• Page 1, line 24, the words “total number of votes cast for the office”; and
• Page 2, line 1 the number “40%”.  …

While I do understand the intent of the amendment and the ability for a clerk’s correction, this is a significant correction and raises legal concerns with the resolution. It also highlights that this final proposal came at the conclusion of the previous iterations and did not receive the appropriate public input and attention it warranted.

This resolution would lower the threshold for Mayor and City Council to be elected from the current system—50% plus 1—to a plurality, meaning most votes wins, and it would eliminate runoffs. Runoff elections are the norm in cities that employ nonpartisan ballots to select local officials. Peer cities such as El Paso, Oklahoma City, Denver, Phoenix, Colorado Springs, and Sacramento all use a 50% plus 1 threshold. 

Although we elect members of Congress and state legislators via plurality vote, these are partisan elections, where parties first select their nominees before they compete in general election. Because the plurality vote rule combined with single member districts tends to produce two strong political parties, general elections almost always have only two candidates, and thus a majority vote winner.  Cities by and large have nonpartisan elections, not party primaries, thus runoffs are often required to produce a majority winner.

I firmly believe a plurality system would give a significant advantage to incumbent candidates and  remove a level of accountability our constituents deserve. With more support from voters, elected leaders have a clear mandate to govern. With a plurality, a Mayor or Councilor could be in office with 10% of the vote or less, making it challenging to represent the whole city or be held accountable to voters.

I want to remind everyone that in 2013, with a vote of 55% to 45%, voters spoke loud and clear on this  issue by changing the then 40% threshold to the current 50%. Current efforts nationwide to reform city elections are focused on promoting democracy and civic engagement, not anti-majoritarian policies like the current amendment, which would allow a minority of voters in the city to select our mayor, and a minority of voters in council districts to select city councilors. This is something I cannot ignore; I respect and support the will of the voters and all the members of our community who have pushed for more  accountability in our elections.

I want to recognize the overwhelming input from the public in opposition to this particular piece of  legislation. It has been clear in the last three City Council meetings, nearly every single community  member voiced their concern and opposition to this measure. There have also been a significant number of op-eds and letters published in opposition, including an open letter to all CABQ leaders from Secretary of State Maggie Toulouse Oliver.

With that being said, I want to recognize that the sponsors of this legislation have been clear and consistent on their position. While I disagree with their position, it has created a healthy discussion and debate within our community, which is a cornerstone of our democracy.

R-24-47 as passed would drastically change the way we conduct elections in the City of Albuquerque. While no election system is perfect, this charter amendment moves Albuquerque in the wrong direction.

For these reasons, I am respectfully exercising my authority to veto R-24-47.”

The link to the relied upon news sources are  here:

https://www.krqe.com/news/albuquerque-metro/albuquerque-mayor-vetoes-plan-to-change-election-thresholds/

https://www.abqjournal.com/news/keller-vetoes-legislation-to-reduce-percentage-votes-needed-to-win-election/article_f643793c-398b-11ef-80f2-738befb2587b.html#tncms-source=home-featured-7-block

Click to access R-24-47-Veto.pdf

COMMENTARY AND ANALYSIS

Simply put, the Charter Amendment to reduce the vote to win a City Council or Mayoral race with whoever gets the most votes with no runoffs is very bad government on many levels and will promote chaos in municipal elections. Initially when the Mayor-City Council form of government was created, it was common to have upwards of 15 candidates running for Mayor and who ever got the most votes won. The result was chaotic elections with  fringe candidates diluting the vote.

It was right for Mayor Keller to make good on his word and veto the charter amendment eliminating all runoff elections. The problem is that it was enacted by the City Council on a 6 to 3 vote, meaning his veto could be overridden by the council if all 6 of the City Councilors who voted for it initially refuse to change their minds.

The Council is on “Summer Break” and will return on August 5, 2024 and at that meeting they could consider overriding Mayor Keller’s veto.  Until then Mayor Tim Keller, and for that matter the general voting public, should make every effort to try and talk some sense into the 6 city councilors who voted for this ill-advised amendment to eliminate run offs and encourage them to let the Keller veto stand. Otherwise, every effort should be made by Mayor Keller and the general public to campaign and make sure the measure is defeated at the polls come November 5.

On July 1 the national news agency CNN published on line the following news story entitled “Takeaways from the Supreme Court’s historic decision Granting Donald Trump Immunity” written by CNN  staff reporters John Fritze,  Tierney Snedd and Devan Cole  with CNN’s Katelyn Polantz contributing  to the report. Following is an edited version of the report:

“[On July 1] The Supreme Court handed down a landmark decision .. granting Donald Trump partial immunity from special counsel Jack Smith’s election subversion case, handing the former president a significant win during his reelection bid.  [You can read the entire Supreme Court decision here]:

Click to access 23-939_e2pg.pdf

Though the 6-3 ruling technically allows Smith to inch the prosecution toward resolution, the majority opinion from Chief Justice John Roberts left many technical questions unresolved – making it increasingly unlikely that a trial can get underway before the November election.

[Roberts wrote for the conservative majority:]

“The President is not above the law. … But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.  That immunity applies equally to all occupants of the Oval Office. … A president inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. … But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”

Smith’s case now returns to lower courts, which must review the specific steps Trump took to overturn the results of the 2020 election and whether those actions were official, and therefore receive immunity, or private, and do not.

Here’s a look at the key takeaways from a historic decision:

TRUMP GOT A BIGGER WIN THAN EXPECTED

In several key respects, Trump got what he wanted from the 6-3 court – and more.

For starters, the Supreme Court ruled that for “core” presidential activity, Trump has the absolute immunity he had sought. The majority said that Trump’s conversations with the Justice Department – his efforts to try to get officials on board with his effort to overturn the election – were covered with absolute immunity.

For other official actions and more routine powers held by the president, the court said there is at least some immunity and it largely deferred to lower courts to sort that out. That’s a process that could take weeks or even months.

The analysis about what’s immune and what isn’t “ultimately is best left to the lower courts to perform,” Roberts wrote.

Perhaps even more important, the majority made clear that official acts cannot be considered at all as evidence in a potential trial, which could make it much harder for Smith to prevail.

Roberts also wrote that the lower courts may not consider a former president’s motive, which may allow Trump’s attorneys to argue that the he wasn’t attempting to overturn an election in his favor at all.

“The opinion found Trump is “absolutely immune” from prosecution for alleged conduct involving discussions with the Justice Department. Trump is also “at least presumptively immune” from allegations that he tried to pressure Vice President Mike Pence to reject certification of Democrat Joe Biden’s electoral vote win on Jan. 6, 2021. Prosecutors can try to make the case that Trump’s pressure on Pence still can be part of the case against him, Roberts wrote.

The court directed a fact-finding analysis on one of the more striking allegations in the indictment — that Trump participated in a scheme to enlist fake electors in battleground states won by Biden who would falsely assert that Trump had won. Both sides had dramatically different interpretations as to whether that effort could be construed as official, and the conservative justices said determining which side is correct would require additional analysis at the trial court level.

Roberts’ opinion further restricted prosecutors by prohibiting them from using any official acts as evidence in trying to prove a president’s unofficial actions violated the law. One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.”

https://apnews.com/article/supreme-court-trump-capitol-riot-immunity-2dc0d1c2368d404adc0054151490f542

WHAT’S NEXT IN THE FEDERAL CASE AGAINST TRUMP?

With the justices giving the lower courts some limited guidance, the next steps are likely to be more hearings, written arguments and even proceedings with witness testimony and debates over evidence before US District Judge Tanya Chutkan in Washington, DC.

Those are likely to come in the days after the Supreme Court hands the opinion down formally to the federal courts in DC. The mechanism for sending a case back down usually takes about as long as a month, but the high court could act more quickly.

Once Chutkan works through the legal issues, it’s possible that more appeals of her preliminary decisions could put the case on hold again – adding in significant delay.

LIBERALS TEAR INTO MAJORITY FOR CREATING ‘A KING ABOVE THE LAW’

The court’s three liberal justices pulled no punches, with two written dissents excoriating the majority opinion as an appalling affront to the nation’s long-held principle that no one is above the law.

That principle, Justice Sonia Sotomayor wrote, was washed away by a ruling that means that in “every use of official power, the President is now a king above the law.”

Joined in full by the court’s two other liberal members, Sotomayor, the court’s senior liberal, wrote that the majority was relying on “misguided wisdom” to give Trump “all the immunity he asked for and more.” Justice Sonia Sotomayor said the decision “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. …  [The majority relied on] little more than its own misguided wisdom about the need for `bold and unhesitating action … [giving  a president] all the immunity he asked for and more.”

The ruling, she wrote, would allow a president to order SEAL Team 6 to assassinate a political rival, organize a military coup to hold onto power or accept a bribe in exchange for a pardon.

“With fear for our democracy, I dissent” Sotomayor wrote.

Sotomayor was especially critical of the decision to not allow prosecutors to use anything done by Trump that is shielded by immunity as they try to convince a jury to convict him over unofficial acts.

“That holding is nonsensical”  the justice wrote at the end of her 30-page dissent.

Sotomayor went on to list “nightmare scenarios” involving illegal conduct by a future president that would, she argued, be shielded from criminal prosecution under the court’s ruling.

“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune,” she wrote.

Sotomayor took the rare step of reading her dissent from the bench … in a move that underscored how aggrieved the liberal bloc of the court is.  … .

Justice Ketanji Brown Jackson penned a solo dissent in which the court’s newest member said the majority ruling “breaks new and dangerous ground” by granting immunity “only to the most powerful official in our government.”  While Justice Ketanji Brown Jackson “agreed with every word” of Sotomayor’s powerful dissent, she wrote a separate opinion to add her own admonishment. She said the nation has “lost a substantial check on presidents who would use their official powers to commit crimes with impunity while in office. …  The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. …  I fear that they are wrong. But, for all our sakes, I hope that they are right.”

TRUMP’S NOMINEE BARRETT PUSHES FOR A SWIFT TRIAL

Justice Amy Coney Barrett, Trump’s last appointee to the high court before leaving office, expressed frustration with how the court was sending the case back to lower courts for more proceedings and more delay in a short concurrence that failed to gain support from any of her colleagues.

In a significant break from the court’s other conservatives, Barrett seemed to suggest Trump should go to trial quickly.

“I would have framed the underlying legal issues differently,” Barrett said.

She suggested that because Trump’s wholesale challenge to the indictment had failed, at least some of the case could go forward.

The conservative justice wrote that “a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment.”

“If that challenge fails, however, he must stand trial,” Barrett wrote.

The justice took issue with how the court had ruled that evidence from Trump’s official acts should be excluded from the trial, writing that there was no reason to depart from the “familiar and time-tested procedure” that would allow for such evidence to be included.

POSTERITY VS. TRUMP

There was a clear tension through the course of the case between justices who wanted to limit the decision to the facts surrounding Trump’s effort to overturn the election and the broader concerns about presidential immunity for all future presidents.

In the end, Roberts repeatedly framed the court’s decision as one made for posterity rather than any single president.

The immunity the court found, he wrote, “applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”

The immunity case, he wrote, “poses a question of lasting significance.” In answering that question, he said, “we cannot afford to fixate exclusively, or even primarily, on present exigencies.”

But given the timing, it was unlikely to be viewed that way by many Americans. The decision landed in the middle of a presidential election featuring the first former president ever convicted of a felony crime.

“On purely partisan lines, the Supreme Court today for the first time in history places presidents substantially above the law,” said David Cole, national legal director of the American Civil Liberties Union who has repeatedly argued before the justices. “The opinion also sits like a loaded weapon for Trump to abuse in the pursuit of criminal ends if he is reelected.”

JUSTICE CLARENCE THOMAS QUESTIONS THE CONSTITUTIONALITY OF SMITH’S APPOINTMENT

Conservative Justice Clarence Thomas added a concurrence to raise questions about whether Attorney General Merrick Garland violated the Constitution when he appointed Smith as special counsel.

Pushing the fringe legal theory about the legality of Smith’s appointment in 2022 has been part of Trump’s defense strategy in his classified documents criminal case in Florida, which also was brought by the special counsel. Trump’s attorneys have argued that Garland does not have legal authority to appoint someone as special counsel who hasn’t been confirmed by the Senate.

Thomas, too, appears to support that argument.  Thomas wrote in his concurrence:

“And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. … The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”  

ONE LOSS FOR TRUMP: IMPEACHMENT ISN’T A LEGAL SHIELD

Trump has also argued that he should be immune from prosecution since he was previously impeached and acquitted by the Senate, therefore creating a double jeopardy situation.

But in one rare win for the special counsel, the court said that argument had no merit.

Addressing Trump’s claims, Roberts wrote that a president who evades impeachment for one reason or another, such as by resigning from office before an impeachment proceeding got underway, would “never be held accountable for his criminal acts.” Roberts wrote:

“Impeachment is a political process by which Congress can remove a president.  Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the constitution or the structure of our government”  

The link to the entire unedited CNN report with photos is here:

Click to access 23-939_e2pg.pdf

BIDEN AND TRUMP REACT TO RULING

Both President Joe Biden and former President Donald Trump and their campaigns were quick to react to the Supreme Court’s decision on presidential immunity.  Not surprising, each used  the ruling to fuel their respective campaigns.

Former President Donald Trump said this on his Truth Social page in all caps:

“BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY.”

Trump’s federal election interference indictment will be sent back to a lower court for further investigation, reducing the possibility of the case heading to trial while he campaigns for reelection. Will Scharf, an attorney for Trump, said this:

“It will take a lot of the air out of the sails of this insane effort of prosecuting President Trump. … Any day he spends in a courtroom is a day that he’s not out holding rallies meeting with voters.”

Trump is also seeking to delay sentencing in his New York hush money trial, arguing that the immunity opinion could change the case.

https://www.fox10phoenix.com/news/trump-reacts-immunity-case-ruling

https://www.wbaltv.com/article/biden-trump-react-supreme-court-ruling-presidential-immunity/61482931

President Biden, speaking at the White House said this:

“There are no kings in America. Each, each of us is equal before the law. No one, no one is above the law, not even the president of the United States. (With) today’s Supreme Court decision on presidential immunity, that fundamentally changed. For all practical purposes, there are virtually no limits on what the president can do. It’s a fundamentally new principle and it’s a dangerous precedent because the power of the office will no longer be constrained by the law even including the supreme court of the United States. I know I will respect the limits of the presidential powers that I have had for 3 1/2 years. … The American people must decide if they want to entrust … the presidency to Donald Trump, now knowing that he’ll be even more emboldened to do whatever he pleases whenever he wants to do it.”

https://www.cnn.com/2024/07/01/politics/joe-biden-immunity-supreme-court/index.html

https://www.wbaltv.com/article/biden-trump-react-supreme-court-ruling-presidential-immunity/61482931

COMMENTARY AND ANALYSIS

With this 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 continue do whatever they can to ensure his election over President Joe Biden and that his criminal trials are delayed.  The 6 do so at the expense of our democracy and our criminal justice system.  All six know full well that no on is above the law, yet they have now carved out an exception to benefit Donald Trump. They know  if the two federal criminal cases 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.

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 seriously 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 Der Führer Trump and his Trump Republican Party.

The link to a related blog article on the United States Supreme Court is here:

Trio Of US Supreme Landmark Cases Issued: Cities Can Ban Homeless Sleeping Outdoors, Strips Federal Agency Unilateral Powers To Regulate, Limits Criminal Obstruction Law As Applying To January 6 Prosecutions; Six Supreme Court Trump Disciple’s Continue With Right Wing Judicial Activist  Agenda

On June 28, the U.S. Supreme Court neared its end of its term this year a trio of landmark decisions that will transform the lives of millions of Americans. All three rulings have been described as “profound” and “sweeping” as the United States Supreme Court rendered 3 sperate opinions on the homeless, government regulatory power, and the January 6 prosecutions of thousand who stormed the United States capitol to stop the certification of the election of President Joe Biden.

In one decision, the court held that local laws effectively criminalizing homelessness do not violate the U.S. Constitution and do not constitute cruel and unusual punishment. In a second decision, the court overturned 40 years of precedent governing how federal agencies can issue regulations and requiring federal court approval.  In the third decision, the Supreme Court vacated all obstruction charges the Department of Justice  has filed against hundreds of January 6 defendants, including former President Donald Trump, declaring the Department of Justice exceeded its authority and went too far.  The United States Supreme Court term is not over yet in that the decision on Presidential immunity and concerning whether former President Donal Trump has immunity from criminal prosecution will be announce July 1.

This blog article is an in depth analysis and commentary of the 3 United States Supreme Court case decisions released on June 28.

CITIES CAN ENFORCE BANS ON HOMELESS PEOPLE SLEEPING OUTDOORS

The case of Grants Pass v. Johnson is a US Supreme Court case that challenges a municipality’s ability to bar people from sleeping or camping in public areas, such as sidewalks and parks. The case came from the rural Oregon town of Grants Pass, which appealed a ruling striking down local ordinances that fined people $295 for sleeping outside after tents began crowding public parks. The homeless plaintiffs argued that Grants Pass, a town with just one 138-bed overnight shelter,  criminalized them for behavior they couldn’t avoid: sleeping outside when they have nowhere else to go. Meanwhile, municipalities across the western United States argued that court rulings hampered their ability to quickly respond to public health and safety issues related to homeless encampments.  The U.S. 9th Circuit Court of Appeals, which has jurisdiction over the nine Western states, ruled in 2018 that such bans violate the Eighth Amendment in areas where there aren’t enough shelter beds.

The Supreme Court  considered  whether cities can enforce laws and take action against or punish the unhoused for sleeping outside in public spaces when shelter space is lacking. The case is the most significant case heard by the high court in decades on the rights of the unhoused and comes as a rising number of people in the United States are without a permanent place to live.

In a 6-3 decision along ideological lines, the Supreme Court  reversed a ruling by a San Francisco-based appeals court that found outdoor sleeping bans amount to “cruel and unusual punishment” under the United States Constitution. The majority found that the 8th Amendment prohibition against cruel and unusual punishment does not extend to bans on outdoor sleeping in public places such as parks and streets.  The Supreme Court ruled  that cities can enforce bans on homeless people sleeping outdoors, even in West Coast areas where shelter space is lacking.

Justice Neil Gorsuch wrote for the majority:

“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. … A handful of federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness. … Cities across the West report that the 9th Circuit’s involuntary test has crated intolerable uncertainty for them.”

Gorsuch suggested that people who have no choice but to sleep outdoors could raise that as a “necessity defense,” if they are ticketed or otherwise punished for violating a camping ban.

A bipartisan group of leaders had argued the ruling against the bans made it harder to manage outdoor encampments encroaching on sidewalks and other public spaces in nine Western states. That includes California, which is home to one-third of the country’s homeless population.

Homeless advocates argue that allowing cities to punish people who need a place to sleep would criminalize homelessness and ultimately make the crisis worse. Cities had been allowed to regulate encampments but couldn’t bar people from sleeping outdoors.

Progressive Justices Sonia Sotomayor, Elena Kagan and Ketangi Brown Jackson dissented. Sotomayor read from the bench the dissent and said this:

“Sleep is a biological necessity, not a crime. … Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment. … It is quite possible, indeed likely, that these and similar ordinances will face more days in court. … It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. … [But the majority instead] focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

Attorney Theane Evangelis, who represented Grants Pass before the high court, applauded the ruling, saying the 9th Circuit decision had “tied the hands of local governments.”  Evangelis said this:

“Years from now, I hope that we will look back on today’s watershed ruling as the turning point in America’s homelessness crisis.”

The Supreme Courts ruling comes after homelessness in the United States has peaked and grown 12% last year to its highest reported level, as soaring rents and a decline in coronavirus pandemic assistance combined to put housing out of reach for more people. More than 650,000 people are estimated to be homeless, the most since the country began using a yearly point-in-time survey in 2007. Nearly half of them sleep outside. Older adults, LGBTQ+ people and people of color are disproportionately affected, advocates said. In Oregon, a lack of mental health and addiction resources has also helped fuel the crisis.

The Link to a quoted and relied upon news sources are here:

https://www.koat.com/article/supreme-court-oregon-homelessness/61453397

REACTION TO RULING

Peggy Bailey, executive vice president for policy and program development at the Center on Budget and Policy Priorities had this to say about the ruling:

“Policymakers must focus on real solutions like rental assistance, cash supports, and strong, flexible community services that are proven to end homelessness and stabilize people with low incomes in housing.”

Some see the decision as removing an unnecessary restriction on the multifaceted approaches cities can take to addressing homelessness. Timothy Sandefur, vice president for Legal Affairs at the Goldwater Institute, in a statement said in a statement:

[This ruling is] the first step toward a sensible approach to the many problems of homelessness. … Cities can only address these problems on a case-by-case basis.  [The decision] enables local communities to find actual solutions for the people who are suffering.”

Legal experts and advocates for the homeless worry that the decision will encourage a more punitive approach to managing homelessness at the expense of other solutions.  which could exacerbate the crisis.

Jennifer Hanlon Wigon, executive director of Women’s Lunch Place, a shelter in Boston said this:

“It sets a really dangerous precedent. …  It’s shifting the focus to law enforcement from human services.”

Claire Herbert, assistant professor of sociology at the University of Oregon, said this:

“There needs to be [a] wider reflection on the causes of homelessness and how we should be addressing this.” 

Legal experts worry that cities will now implement camping bans even when they don’t have to, creating more barriers to getting out of homelessness. Accumulated, unpaid fines and a criminal record make it hard, for instance, to get a driver’s license and can be used by landlords to deny housing.

Another consequence may be that homeless populations will move to communities that do not enforce camping bans, or have more resources. Police will have to enforce the bans at the expense of other issues.

Margot Kushel, director of the Benioff Homelessness and Housing Initiative at the University of California, San Francisco said this:

“The solutions to homelessness have always been clear, and this is not it. … [The ruling] is sweeping. It is extreme. It is cruel.”

The Link to a quoted and relied upon news sources are here:

https://www.csmonitor.com/USA/Justice/2024/0628/supreme-court-environment-homelessness-jan.-6

CITY OF ALBUQUERQUE PENDING LITIGATION ON THE HOMELESS

The Supreme Court ruling in Grants Pass v. Johnson will no doubt have a major impact on the class action lawsuit filed against the city of Albuquerque. The city should seek an immediate dismissal of the case based on the Supreme Court ruling  or perhaps a settlement.

It was on Monday, December 19, 2022 the American Civil Liberties Union of New Mexico, the NM Center on Law & Poverty, and the law firms of Ives & Flores, PA and  Davis Law New Mexico filed a “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief” against the City of Albuquerque on behalf  4 men and 4 women identified Plaintiffs alleged to be homeless. According to the complaint filed, not one of the 8 plaintiff’s allege they were charged or arrested for refusing to leave Coronado Park on the day it was closed nor were they jailed.

The Plaintiffs allege they were displaced from Coronado Park when the city closed it and that the city did not provide satisfactory shelter options to them although the city said it did give notice and offered shelter and services, including vouchers.  According to an ACLU the lawsuit was filed to stop the City of Albuquerque from destroying encampments of the unhoused, seizing and destroying personal property and jailing and fining people.

The lawsuit alleges the city unlawfully seized personal property, denied due process of law, and violated constitutional rights by destroying property and forced all the unhoused at Coronado Park out with nowhere for them to go and with the city not providing shelter for them. The lawsuit is seeking court orders that will require the city to cease and desist enforcement actions to stop the unhoused from camping in public spaces which includes public streets, public rights of ways, alleyways, under bridges and city parks unless the city has shelter or housing for them.

STATUTES AND ORDINANCES ENUMERATED

The lawsuit specifically enumerates New Mexico Statutes and City Ordinances that have been enacted to protect the general public health, safety, and welfare and to protect the public’s peaceful use and enjoyment of property rights. The lawsuit does not challenge the constitutionality of any of the state statutes nor city ordinances.

The lawsuit makes the very broad allegation that “the  City regularly enforces City ordinances and state laws against unhoused people in a manner that criminalizes their status as homeless … [and] …  Unhoused people who erect tents or makeshift shelters around the City are routinely cited and/or arrested for violations of [the state laws and city ordinances].   Violations of these statutes and ordinances are punished as misdemeanors.”

All the laws cited have been on the books for decades and are applicable and are enforced against all citizens and not just the unhoused. The specific statutes cited in the lawsuit are:

1. NMSA 1978, Section 30-14-1 (1995), defining criminal trespass on public and private property.
2. NMSA 1978, Section 30-14-4 (1969), defining wrongful use of property used for a public purpose and owned by the state, its subdivisions, and any religious, charitable, educational, or recreational association.
3. Albuquerque City Ordinance 12-2-3, defining criminal trespass on public and private property.
4. Albuquerque City Ordinance 8-2-7-13, prohibiting the placement of items on a sidewalk so as to restrict its free use by pedestrians.
5. Albuquerque City Ordinance 10-1-1-10, prohibiting being in a park at nighttime when it is closed to public use.
6. Albuquerque City Ordinance 12-2-7, prohibiting hindering persons passing along any street, sidewalk, or public way.
7. Albuquerque City Ordinance 5-8-6, prohibiting camping on open space lands and regional preserves.
8. Albuquerque City Ordinance 10-1-1-3, prohibiting the erection of structures in city parks.

All the above laws are classified as “non-violent crimes” and are misdemeanors.  The filing of criminal charges by law enforcement are discretionary when the crime occurs in their presence.  The City of Albuquerque and the Albuquerque Polic Department has agreed that only citations will  be issued and no arrests will be made for violations of the 8 statutes and city ordinance as part of a court  approved settlement in federal case dealing with jail overcrowding. 

A preliminary injunction, which limited the circumstances under which the city could require people camping outside to leave or could seize their belongings, went into effect November 1, 2023. The injunction cited both the Eighth Amendment to the United States Constitution, much like the Grants Pass Court of Appeals decision, and the Fourth Amendment, which prohibits unreasonable searches and seizures.  The injunction was designed to limit the citie’s sweeps of homeless encampments but the injunction was dropped in May. The injunction required that campers be given a 72-hour notice to vacate and be offered storage for belongings and transportation to a shelter. It also required an opportunity for belongings to later be reclaimed. The city said even though the injunction was dropped in May, it has been giving campers appropriate notice and offering resources.  The city said it will continue to send staff to conduct welfare checks at encampment sites and offer a list of services for campers.

An August trial  date in the  lawsuit filed against the city of Albuquerque alleging it violated the civil rights of homeless people was vacated, pending a decision in the Grants Pass case.  A new date has not been set, according to court records.

A news release from the City of Albuquerque in response to the Supreme Court decision said it “appreciates more flexibility to enforce ordinances.” The release said the city responds to more than 50 encampments per day. Mayor Tim Keller for his part said  this in a statement:

“I know there will be mixed reactions to this ruling in our community. … So I want to be clear [that] the City will continue to do everything in our power to get people the help they need and to deal promptly with illegal encampments.”

Links to a quoted and relied upon news sources is here:

https://www.abqjournal.com/news/supreme-court-rules-that-outdoor-camping-bans-are-lawful-how-could-that-decision-affect-albuquerque/article_d708fdd6-3593-11ef-bb6d-8350d9880c72.html#tncms-source=home-featured-7-block

SUPREME COURT STRIPS POWER FROM FEDERAL AGENCIES; OVERTURNS DECADES OLD CHEVRON DOCTRINE

The United States Supreme Court in a  6-3 ruling, overturned the 1984 precedent case of  Chevron v. Natural Resources Defense Council.   The court ruling  shifts the balance of power between the executive and judicial branches of government. It gives  an important victory to conservatives who have sought for years to rein in the regulatory authority of the “administrative state.” The decision significantly weakens the power of federal agencies to approve regulations that  have sweeping implications for the environment, public health and the workplace.  The decision overturns what is referred to as the Chevron Doctrine that requires the  courts to give deference to federal agencies when creating regulations based on an ambiguous law. Congress routinely enacts open-ended laws that give latitude to agencies to work out and adjust the details to new circumstances.

In the case of the fishermen who brought the case, the law allowed the government to mandate the observers but was silent on the question of who had to pay their salaries, which the fisherman argue added roughly $700 a day to their costs. They encouraged the court to rule that agencies couldn’t enact such a requirement without explicit approval from Congress.

Conservatives have long sought to rein in regulatory authority, arguing that Washington has too much control over American industry and individual lives. The justices have been incrementally diminishing federal administrative power for years, but the new case gave the court an opportunity to take a much broader stride. The Supreme Court has been prohibiting federal agencies from  approving  regulations on their own. In 2021  the court’s conservatives struck down a Biden administration effort to extend an eviction moratorium first approved during the Trump administration. Last year, the court’s conservatives similarly invalidated a Biden plan to wipe out student loans of millions of Americans.

The ruling means that federal courts no longer have to defer to federal  agency interpretations in deciding whether their policies are lawful. Chief Justice John Roberts wrote for the court that the  Chevron Doctrine “defies the command of” the Administrative Procedure Act, which governs how agencies operate, because that says that courts should interpret statutes, arguing the longstanding precedent told courts to “ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment” and “demands that courts mechanically afford binding deference to agency interpretations.”  Chief Justice John Roberts wrote in his majority opinion:

“Chevron is overruled. … Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”  While appreciating that laws may not always be clear, Chief Justice John Roberts wrote in the majority opinion the Framers envisioned “that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts. … “The only way to ‘ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,’ is for the Court to leave Chevron behind.”  Chief Justice Roberts noted that the decision does not affect past cases, and that courts would need to provide a “special justification” for overturning them.

Justice Neil Gorsuch wrote separately and  called the  Chevron Doctrine “a grave anomaly when viewed against the sweep of historic judicial practice. … It undermines core rule-of-law values ranging from the promise of fair notice to the promise of a fair hearing … [It] operated to undermine rather than advance reliance interests, often to the detriment of ordinary Americans.”

Progressive Justice Elena Kagan, writing a dissent joined by the court’s two other progressives Justices Sonia Sotomayor and  Ketangi Brown Jackson said this about overturning the  Chevron Doctrine:

“In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar. …  A rule of judicial humility gives way to a rule of judicial hubris.”

White House press secretary Karine Jean-Pierre said this:

“[This ruling is] yet another deeply troubling decision that takes our country backwards. … Republican-backed special interests have repeatedly turned to the Supreme Court.  Once again, the Supreme Court has decided in the favor of special interests.”

In Supreme Court briefing, the federal government  warned the court that overturning Chevron would be a “convulsive shock to the legal system” and “destabilizing” to all areas of the federal government, arguing the ruling would “threaten settled expectations in virtually every area of conduct regulated by federal law.”

The Supreme Court’s ruling is likely to reverberate throughout the federal government mandating that federal judges weigh in on any number of federal policies and regulation and overturn them without deferring to the federal agencies, which critics on the left fear will lead to conservative judges striking down scores of policies enacted by the Biden administration or other Democratic White Houses. Although Chief Justice Roberts noted  in the  court’s ruling  that the ruling will not apply to any rulings in the past that have relied on Chevron, it’s likely to have a big impact on the judiciary going forward.

Critics of the ruling see it as part of a broader effort by conservative activists, aided by a sympathetic conservative activist Supreme Court to transfer regulatory power from federal agencies to the courts. One example is that the Supreme Court rolled back the power of the Securities and Exchange Commission to impose civil penalties for fraud. Instead, federal regulators would need to seek a jury trial. Notwithstanding, the Supreme Court  has sided with federal agencies on occasion, including when it upheld the funding mechanism of the U.S. Consumer Financial Protection Bureau.

But the prevailing trend has seen the court chip away at the powers of the so-called “administrative state.”  Two years ago, the court issued a decision that fleshed out what it calls the major questions doctrine. The doctrine holds that federal agencies can’t take major actions without clear direction in law from Congress, with courts deciding which actions are “major.”

Critics of the administrative state argue that the Chevron Doctrine  puts too much power in the hands of unelected and unaccountable federal bureaucrats. Supporters of the administrative state claim that power is now being put in the hands of unelected and unaccountable federal judges.

Links to quoted and relied upon news sources are here:

https://www.cnn.com/2024/06/28/politics/chevron-precedent-supreme-court/index.html

https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme-court-strips-power-from-federal-agencies-overturning-decades-old-precedent/

https://www.csmonitor.com/USA/Justice/2024/0628/supreme-court-environment-homelessness-jan.-6

https://www.cbsnews.com/news/supreme-court-january-6-obstruction-trump/

SUPREME COURT LIMITS PROSECUTION OF JANUARY 6 DEFENDANTS FOR OBSTRUCTION

The United State Supreme Court  ruled 6-3 to limit the federal obstruction criminal law that has been used to charge hundreds of January 6  Capitol riot defendants as well as former President Donald Trump.   The Supreme Court ruled that the charge of “Obstructing an Official Proceeding”, enacted in 2002 in response to the financial scandal that brought down Enron Corp., must include proof that defendants tried to tamper with or destroy documents. The provision of the law at issue  imposes criminal charges on anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” A conviction carries a maximum sentence of 20 years in prison.

The Supreme Court remanded the case of former Pennsylvania police officer Joseph Fischer back to the lower court the to determine if Fischer could be charged with “Obstructing an Official Proceeding. Fischer has been indicted for his role in disrupting Congress’ certification of Democrat Joe Biden’s 2020 presidential election victory over Trump.  Fischer is among about 350 people who have been charged with “Obstructing an Official Proceeding.” Some pleaded guilty to,  or were convicted of, lesser charges.

More than 1,400 people have been charged with Capitol riot-related federal crimes. For around 50 people who were convicted, obstruction was the only felony count. Of those, roughly two dozen who still are serving their sentence are most likely to be affected by the ruling. Only some of the people who violently attacked the Capitol on January  6, 2021, have been charged with obstruction. The overwhelming majority of the approximately 1,000 people who have been convicted of or pleaded guilty to Capitol riot-related federal crimes were not charged with obstruction and will not be affected by the outcome.

Under the ruling issued, dozens of defendants could seek new sentences, ask to withdraw guilty pleas, or have charges dropped. Most defendants convicted of obstruction were also convicted of another felony so their sentence may not be significantly impacted, if at all.

Notwithstanding, the court ruling is being  used  for claims by former President Trump and his Republican allies that the Justice Department has treated the Capitol riot defendants unfairly.

Roughly 170 Capitol insurrection defendants have been convicted of obstructing or conspiring to obstruct the January  6 joint session of Congress, including the leaders of two far-right extremist groups, the Proud Boys and the Oath Keepers. A number of defendants have had their sentencings delayed until after the justices rule on the matter.

The U.S. attorney’s office in Washington, which has handled January  6 prosecutions, said no one who has been convicted of or charged with obstruction will be completely cleared because of the ruling. Every defendant also has other felony or misdemeanor charges, or both, prosecutors said.

Some rioters have even won early release from prison while the appeal was pending over concerns that they might end up serving longer than they should have if the Supreme Court ruled against the Justice Department. They include Kevin Seefried, a Delaware man who threatened a Black police officer with a pole attached to a Confederate battle flag as he stormed the Capitol. Seefried was sentenced last year to three years behind bars, but a judge recently ordered that he be released one year into his prison term while awaiting the Supreme Court’s ruling.

Republican Chief Justice John Roberts wrote the court’s opinion. He was  joined by Republican conservative Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas, and by progressive Democrat   Justice Ketanji Brown Jackson, a former federal public defender who also wrote a separate opinion.

While the case stemmed from January 6 riot, Chief Justice Roberts wrote in the majority opinion that the government’s interpretation of the law would criminalize not only serious conduct but also “a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.” Roberts wrote the government “must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.”

In a concurrence, Democrat Justice Ketanji Brown Jackson,  a member of the court’s progressive wing and a former public defender,  wrote that the mob “inflicted a deep wound on this nation [but the case] is not about the immorality of those acts. … Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis.”

Republican Justice Amy Coney Barrett dissented, along with Democrat Justices Elena Kagan and Sonia Sotomayor. Barrett, one of three justices appointed by Trump, wrote that the law clearly encompasses the events of January 6.  Barrett wrote:

“Events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them.  … The riot forced Congress to suspend the proceeding, delaying it for several hours.  …  [The court’s majority did]  “textual backflips to find some way, any way,  to narrow the reach [of the obstruction law].

Roberts, Jackson and Barrett made strikingly different word choices in their opinions. While Roberts described the attack as a “breach of the Capitol,” Barrett described the events as a riot and the participants as rioters. Jackson wrote that “an angry mob stormed the United States Capitol.”

REPUBLICANS CAST JANUARY  6 DEFENDANTS AS VICTIMS

Republicans, who have cast the January  6 defendants as victims of political persecution, have pounced on the ruling to argue the rioters have been unfairly prosecuted by the Justice Department. Trump has embraced Jan. 6 defendants on the campaign trial, and floated pardons for the rioters if he wins in November.

Trump, speaking at a rally in Chesapeake, Virginia, described the Supreme Court’s decision as a “great thing.” Trump said this:

“Free the J6 hostages now.  They should free them now for what they’ve gone through. They’ve been waiting for this decision for a long time. They’ve been waiting for a long time. And that was a great answer. That is a great thing for people that have been so horribly treated.”

ATTORNEY GENERAL MERRICK GARLAND DISAPPOINTED

Attorney General Merrick Garland said he was disappointed with the court’s decision, which he said “limits an important federal statute.”   Garland was quick to point out that the cases against the “vast majority” of people charged in the attack won’t be affected. Garland said this:

“January 6 was an unprecedented attack on the cornerstone of our system of government — the peaceful transfer of power from one administration to the next. … We will continue to use all available tools to hold accountable those criminally responsible for the January 6 attack on our democracy.”

AFFECT ON PENDING CASES

It’s also likely to slow down cases in a court already clogged with January  6 defendants as judges are forced to grapple with how to apply the ruling. “It’s going to be a big mess,” said Randall Eliason, a professor at George Washington University Law School and former federal prosecutor in Washington.

Seventeen of the 18 trial judges who have weighed in have allowed the charge to stand. Among them, U.S. District Judge Dabney Friedrich, a Trump appointee, wrote that “statutes often reach beyond the principal evil that animated them.” But U.S. District Judge Carl Nichols, another Trump appointee, dismissed the charge against Fischer and two other defendants, writing that prosecutor went too far. A divided panel of the federal appeals court in Washington reinstated the charge before the Supreme Court agreed to take up the case.

It’s unclear how the court’s decision will affect the case against former Predident  Trump in Washington, DC, which includes charges other than obstruction. Special Counsel Jack Smith has said the charges faced by the former president would not be affected. Trump’s case is on hold while the Supreme Court considers a separate case in which Trump is claiming immunity from prosecution. A decision is expected on Monday.

https://apnews.com/article/supreme-court-capitol-riot-obstruction-2cdba47baa5cea8177d651de751760a6

https://www.csmonitor.com/USA/Justice/2024/0628/supreme-court-environment-homelessness-jan.-6

COMMENTARY AND ANALYSIS

With these 3 landmark decisions by the United States Supreme Court, the 6 Supreme Court disciples of Donald Trump continue their assault on all things progressive with their judicial activism. The 6 appointed Republican Justices have already made a profound difference with their judicial activism over the last 2 years.

 At the end of June, 2023, the United State Supreme Court issued 4 major decisions that were highly anticipated and with great concern confirming it has become a far right wing activist court.   The first was the court’s rejecting an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The second struct down decades of affirmative action in college admissions.  The third ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds.  The fourth invalidated President Joe Biden’s student loan debt relief plan. Then there is the matter of 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.

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 Der Führer Trump and his Trump Republican Party.

On June 17 the Albuquerque City Council voted  on a 6 to 3 vote to  passed a Charter Amendment that would eliminate all runoff elections for Mayor and City Council. It would  mandate that whoever gets the most votes wins with no runoff between the two top vote getters.  Whoever secures the most votes of all the candidates running at the same time wins the election out right. The charter amendment was sponsored Democrat Councilor Klarissa Peña  and Republican Dan Lewis.  Republican City Councilors Dan Lewis, Brook Bassan, Renee Grout and Dan Champine and Democrat City Councilors Louie Sanchez and Klarissa Peña voted “YES”. Democrat City Councilors Tammy Fiebelkorn, Nichole Rogers and Joaquín Baca voted “NO”.

If the Chater Amendment is approved, in a crowded candidate field, the prevailing candidate would not have a majority vote but a much less percentage of less than 50% of the vote.  The charter amendment must be placed on the November 5 general election ballot. Passage of the charter amendment by the city council  has been severely criticized as a scheme to dilute the vote to help incumbents and those with high name identification by eliminating voter majority wins.  Mayor Tim Keller was quick to announce his intent to veto the charter amendment, but the veto could be overturned on a 6 to 3 vote resulting in it  being  placed on the November 5 general election ballot.

A few dozens members of public commented on the amendment. One commenter said, despite the high cost of runoff elections, it was “money well spent.”  Many of public commenters spoke against the  changes and  lowering the percentage of votes a candidate needs to win a city election. “Breaking with established norms, you are proposing to do away with majority rule, a cornerstone of a representative democracy. You are suggesting that a candidate that receives a majority of votes against them is fit to serve and carries a mandate to govern” said one public commenter.

Several public commentors called the proposal undemocratic which prompted City Council President Dan Lewis, a  bill sponsor to challenge the comment. Lewis said this:

“There’s nothing more democratic than Council to be voting on this tonight. … And nothing more democratic than the general public voting on this in November.”

In an Albuquerque Journal  June 17 guest opinion column, Republican City Councilor Dan  Lewis called runoff elections as being rooted in racist strategies in the deep south. The link to the guest column is here:

https://www.abqjournal.com/opinion/opinion-runoff-elections-are-rooted-in-racist-strategies-in-the-south/article_159a1768-29f7-11ef-b97d-2732dbdccdf0.html

Councilor Klarissa Peña, the second sponsor of the amendment, said primary runoff elections are used in only a few states and were rooted in racist policies intended to keep white politicians in power. Peña said this:

“This is history, folks.”

It may be history of the deep south, but its not Albuquerque’s history.

First term City Councilor Nichole Rogers, the only African American on the city council, and who was elected in November, 2023 in a runoff election after none of the 4 candidates running secured 50% of the vote, rejected Peña argument and said this:.

“Do not use my people’s plight to justify … making things easier for you to win

SECRETARY OF STATE CALLS MEAUSURE “BIG STEP IN WRONG DIRECTION”

 

On June 25, New Mexico Secretary of State Maggie Toulouse Oliver felt compelled to write  Mayor Tim Keller and all 9 Albuquerque City Councilors voicing in no uncertain terms her opposition to the proposed charter amendment.  Following is the full unedited letter:

June 25, 2024

Albuquerque City Council
One Civic Plaza NW
9th Floor, Suite 9087
Albuquerque, NM 87102

Mayor Tim Keller
Councilor Louie Sánchez, District 1
Councilor Joaquin Baca, District 2
Councilor Klarissa Peña, District 3
Councilor Brook Bassan, District 4
Councilor Dan Lewis, District 5
Councilor Nichole Rogers, District 6
Councilor Tammy Fiebelkorn, District 7
Councilor Dan Champine, District 8
Councilor Renee Grout, District 9

RE: Charter amendment changing winning vote threshold in city elections

Dear Mayor and Councilors:

“As New Mexico’s Chief Election Officer and the former Bernalillo County Clerk, I would not normally reach out to city leadership in this way, but because of my deep concern about Proposal P-24-1’s impact on the electoral process, I must urge each of you to reconsider these proposed changes to Albuquerque’s municipal elections.

Unlike state and federal elections in which there is a Primary Election that whittles down the pool of candidates, municipal runoff elections with winning majority thresholds help create important mandates for local officials in New Mexico.   I also recognize there are some substantive arguments against the city’s existing runoff structure.  These top-two runoff elections come with hefty price tags, and their timing typically means fewer eligible voters make their voices heard at the ballot box.

However, although not ideal, the current system is still preferable to the charter amendment in Proposal P-24-1. Albuquerque voters already approved the current 50% threshold for winning candidates in 2013, and having candidates receive at least 50% of the total votes provides the public with a clear winner who then has a mandate to lead. Changing the city’s election system to one where a candidate can be elected with a minority of votes is a big step in the wrong direction.

If the city continues to feel that the existing system is a problem, the best solution is one that other New Mexico cities are already using, but which the Albuquerque City Council has not implemented: Ranked Choice Voting. This instant runoff approach to voting would eliminate the need for an election at a later date, providing cost savings for the city and a statewide election date voters can plan on each odd numbered year. Plus, Ranked Choice Voting ensures that the winner of the race is elected by a majority of voters.

The perceived legitimacy of our elections has been under significant strain in recent years. The public needs confidence that their municipal leaders have been legitimately elected, and the best way to do that is with a secure, accessible electoral system that demands the winner receives the majority of votes. I hope that you will reconsider your positions on this matter.”

Sincerely,

[Signature]

Maggie Toulouse Oliver
New Mexico Secretary of State

COMMENTARY AND ANALYSIS

The fact that New Mexico Secretary of State Maggie Toulouse Oliver felt compelled to write to Mayor Keller and all 9 city councilors should give all 6 of the city councilors who voted for the measure great pause and grounds to reconsider their vote. Simply put, the Charter Amendment to reduce the vote to win a City Council or Mayoral race with whoever gets the most votes with no runoffs is very bad election policy and  government on many levels.  It will  promote chaos in municipal elections and the promotion of extreme fringe candidates that will dilute the vote and who would be culled out of an election with  runoffs between two top vote getters.

The relations between Mayor Tim Keller and the more conservative majority city council have deteriorated because of the sure frustration the conservatives on the council have experienced in not being able to stop the Keller progressive agenda with overriding vetoes.  As a result, the city council is once again trying to get city voters to change our basic form of city government with charter amendments in order to carry out a personal vendetta against a Mayor they do not like and who they perceive as ineffective and unpopular and who is running for a third term despite a low approval rating of 33%.

It’s downright offensive to city voters that City Council President Dan Lewis and Klarissa Peña pulled  the “race card” alleging runoff elections are rooted in racist strategies in the South. Both conveniently ignored the fact that it was voters who changed the charter provisions by requiring run offs where no one candidate secures 50% of the vote and it was done so on recommendation of a Charter Review Task Force.

Common Cause was quick to address the city council vote on social media this way:

“[The Albuquerque City Council]  took us backward by amending an already bad proposal. Rather than lowering the threshold to be elected mayor or city councilor from 50% to 40%, they’ve eliminated any threshold altogether. Candidates under this scheme could be elected with 10% for example. The 6-3 passage of this proposal means, voters will be confronted with a question on this November’s ballot to eliminate run-offs and move to a free-for-all voting process where fringe candidates and special interests will dominate our elections.”

Mayor Tim  Keller is right to veto the proposed Charter Amend measure on election votes and try to talk some sense into the Democrats City Councilors Klarissa Peña and Louie Sanchez in the hopes of changing their minds, but that will likely be an exercise in futility given the poor relations he has with the two and for that matter the city council in general.

On June 21, during a news conference to discuss Officer Involved Shooting incidents, the Albuquerque Police Department (APD) released a six-month report of seven officer-involved shootings for the second half of 2023. The report is dated October 4, 2023. The review was conducted by a working group comprised of APD Deputy Chiefs, one APD Major, one legal advisor, and one external contractor who specializes in uses of force.

APD Chief Harold Medina started the 6-month reviews in 2022.  The purpose of the reviews is to look at Officer Involved Shooting incidents collectively to identify patterns. The working group gave special consideration to whether de-escalation was used and where using a less-lethal tool earlier in the encounter might have avoided the need for deadly force.

SUMMATION OF REVIEW

According to the review, 2 of the 7 shootings began as minor offenses. Two were initiated as property crimes, and 3 related to violent offenses. Two of the 7 suspects shot at police. None began as behavioral health calls. All three people fatally shot had drugs in their bodies at the time of their deaths.  One of the 7 cases was deemed to be out of compliance with APD policy, but 38% of the officers involved had less than 6 years of experience, 35% had between 6 and 8 years of experience and 21% had more than six years’ experience.

APD Chief Harold Medina said that many of the incidents involved foot pursuits.  Medina said APD  is working on a policy to deal with the potential threats caused by a fleeing suspect and the potential threats of engaging in a foot pursuit.

Chief Harold Medina said this in a press release:

“We noted trends that need to be addressed, including the high number of foot pursuits that resulted in shootings. … We started work on a new policy that considers the potential threat caused by the fleeing suspect, whether the suspect has been identified by law enforcement, and any potential threats presented by engaging in a foot pursuit. Those factors must be balanced with APD’s mandate to enforce the law. … Officer-involved shootings will be reduced when the number of criminals who are armed in the community is reduced.”

REPORT FINDINGS

The review made 7 specific findings. Quoting the report, those 7 specific finding are:

1. 100%, 7 out of 7 Officer Involved Shooting  incidents involved an individual armed with a gun or knife/edged weapon. Five of those were armed with a gun.
2. 29%, 2 out of 7 Officer Involved Shooting incidents involved individuals who were shooting at officers at the time of the Officer Involved Shooting incident.
3. Less-lethal force was attempted prior to using deadly force in two of the OIS incidents.
4. The working group determined two Officer Involved Shooting incidents involved situations where the use of less-lethal force earlier in the encounter might have resolved the situation and thus, avoided the need for deadly force. In making this assessment, the working group could not  predict how the individual would have responded to the use of less-lethal force. It is entirely possible the situation would have still resulted in the use of deadly force.
5. De-escalation was used in two Officer Involved shooting The working group determined de-escalation was not feasible in 4 incidents based on the facts of each case. The working group determined de-escalation may have been used in one of the Officer Involved Shooting incidents after the initial shots had been fired, but before the second.
6. None of the individuals had a history with APD’s Crisis Intervention Team. One individual is believed to have had a history of mental illness, according to a family member. It is not known whether any other individuals suffered from mental illness.
7. Drug and/or alcohol use was not known with toxicology reports for deceased individuals having not been submitted at the time of the review.

RECOMMENDATIONS MADE

The working group recommended 5 action items. Quoting the report, those 5 action items are:

1. APD will prioritize in upcoming firearms training that officers will be trained on environmental and situational awareness, decision-making, and threat identification during lethal incidents.

There were 4 Officer Involved Shooting incidents where bystanders were in the vicinity of the offender during the incident, including one incident where two bystanders were shot and injured. APD said it will provide training in several areas including, but not limited to, firearms safety rules when pointing or shooting their firearm, identifying threats and non-threats with moving targets, and overall awareness of the environments in which they may need to use deadly force.

2. Evaluate the assignments of less-lethal tools, specifically “40 millimeter launchers.” EDITOR’S NOTE:  A 40-millimeter launcher fires hard-foam projectiles at a subject at a high rate of speed to sub due a suspect and the force used is classified as non-lethal.

 While each officer cannot be assigned every less-lethal tool available, APD will evaluate the current assignments of the “40 millimeter launchers” to ensure the officers most likely to become involved in a critical incident, the Field Services Bureau, are more likely to have them assigned to squads.

3. Prioritize command and control training and scenarios for upcoming supervisory training

APD is in the process of developing supervisory training that includes supervisory responsibilities during critical events. The Training Academy will include command and control training that includes decision-making and explicit assignment of officer roles (i.e. communications, lethal, and less-lethal).

4. Evaluate policy for potential revision for lethal weapons deployment

 The working group collaborated with the use of force expert contractor during this review period. One recommendation was for APD to evaluate its policy with deployment of lethal weapons, specifically rifles. The department will consider reducing the initial deployment of rifles based on the information at the time with the supervisory capability to evaluate the need for certain weapon types to properly address the involved individual(s).

5. Evaluate policy for potential revision for increased roles of supervisors and Emergency Communications Center (APD Dispatch)

Another recommendation provided by the use of force expert was for APD to determine if there are improved ways for supervisors and dispatchers to actively work together during calls for service with the goal of improving outcomes of calls for service, including but not limited to helping supervisors identify a call involving a mental health component, reminding officers to deescalate, providing a reminder to turn on their on-body recording devices, or to assist supervisors for additional resources.

The link to the October 4, 2023 six-month review of the 7 officer involved shootings is here:

https://www.cabq.gov/police/news/apd-conducts-6-month-review-of-officer-involved-shootings

Links to quoted and relied upon news sources are here:

https://www.krqe.com/news/apd-releases-data-on-7-police-shootings-from-2023/

https://www.abqjournal.com/news/apd-review-suspects-shot-at-by-police-have-wielded-guns/article_c56c20e0-301a-11ef-b2ba-4f2eebcc6d04.html

APD RANKS #1 IN CIVILIAN KILLINGS OUT OF THE 50 LARGEST CITY POLICE DEPARTMENTS IN THE COUNTRY

For the past nine years, the Albuquerque Police Department has been operating under a Court Approved Settlement Agreement mandating 271 reforms after a Department of Justice investigation found that APD had engaged in a pattern of “excessive use of force” and “deadly force” and finding a “culture of aggression.”

Over nine years, the city has spent millions on reform efforts, has created and staffed new divisions to hold APD officers accountable, rewrote use of force policies and procedures and trained APD officers in constitutional policing practices. The reform has been accomplished under the watchful eye of the federal court and an appointed Federal Independent Monitor.

 On April 10, the on-line news publication Searchlight New Mexico published a story researched and written by its staff reporter Josh Bowling.  The article is entitled “Can the Albuquerque Police Department ever be reformed?”  The article goes into great detail explaining the Court Approved Settlement Agreement (CASA), what has been done to reform APD and the role of the Federal Monitor. The link to read the full, unedited Searchlight New Mexico article with photos and graphs is here:

https://searchlightnm.org/can-the-albuquerque-police-department-ever-be-reformed/?utm_source=Searchlight+New+Mexico&utm_campaign=ca4e266790-4%2F10%2F2024+-+Albuquerque+Police+Department+Reform&utm_medium=email&utm_term=0_8e05fb0467-ca4e266790-362667516&mc_cid=ca4e266790&mc_eid=ccd9412715

The Search Light New Mexico article reported that last year, the Albuquerque Police Department killed 10.6 people per million residents, more than any other sizable police department in the nation, according to data tracked by the national nonprofit Mapping Police Violence.

Following are the relevant excerpts from the Search Light New Mexico article:

“In 2022, the department set a record for police shootings with 18, 10 of which were fatal. That year, a Searchlight analysis found, only the police departments in Los Angeles, New York and Houston killed more people than APD.

 Law enforcement officials, including police leaders and district attorneys, say such figures are nuanced. They point to the acute dearth of mental health resources in New Mexico and, anecdotally, stories of people who draw guns on police officers as explanations for why the problem of police violence is so outsized locally.”

…

“In the past four years, Albuquerque police repeatedly shot people who were suffering visible mental health crises. They shot 26-year-old Max Mitnik in the head during a “schizoaffective episode” in which he asked officers to fire their weapons at him; they shot and killed 52-year-old Valente Acosta-Bustillos who swung a shovel at officers and told them to shoot him; they shot and killed 33-year-old Collin Neztsosie while he was on his cell phone, pleading for help with a 911 dispatcher.

These grim numbers have led reform advocates, critics and law enforcement leaders themselves to question what it means to be “in compliance.”

“You can improve things on paper or comply with the terms of a consent decree and still have these things happening. … Albuquerque is a prime place to be asking the questions…about what impact consent decrees have. The city should be ground zero for the national conversation on police reform” said UCLA law professor Joanna Schwartz, author of the 2023 book “Shielded: How the Police Became Untouchable.”

This is not to say that the consent decree has been without merit. The 2014 Court-Approved Settlement Agreement between the DOJ and Albuquerque laid out nearly 300 mandated reforms: Since its launch, APD has fulfilled hundreds of reform requirements, including overhauling scores of policies and training procedures.”

The Search Light New Mexico article contains a horizontal graph listing the 50 largest cities in the United States. According to the graph, among the 50 largest cities, Albuquerque Police killed people at the highest rate than all the other city police departments in 2023  at the rate of  10.6 per 1 Million population. It is worth comparing Albuquerque’s 10.6 kill rate to the largest cities in the surrounding border states of Texas, Colorado, Arizona and also including Oklahoma and Nevada:

• Albuquerque, NM: 10.6
• San Antonio, Texas:  9.8
• Phoenix, Arizona: 8.7
• Austin, Texas: 7.3
• Denver, Colorado: 5.6
• Tucson, Arizona: 5.5
• Fort Worth, Texas: 5.4
• Houston, Texas: 5.2
• Colorado Springs, Colorado: 4.2
• Dallas, Texas: 3.1
• El Paso, Texas: 2.9
• Las Vegas, Nevada: 2.6
• Oklahoma City, Oklahoma: 2.0”

APD IN COMPLIANCE WITH DOJ SETTLEMENT DESPITE SHOOTINGS

On June 4, a federal court hearing was held on the 19th Federal Independent Monitor’s Report and APD’s progress in implementing the mandated reforms of the Court Approved Settlement Agreement (CASA). The federal monitor reported that APD has reached 100% primary compliance, 100% secondary compliance and 96% operational compliance of the 271 reforms mandated by the settlement.

Under the terms and conditions of the settlement agreement, once APD sustains a 95% compliance rate in all three identified compliance levels and maintains it for two consecutive years, the case can be dismissed. The significance of APD being in compliance is that APD has now entered into a new “sustainment” phase to last until the end of 2025. If there’s no backsliding, which has occurred in the past, the DOJ consent decree can be dismissed.

ANALYSIS AND COMMENTARY

The APD six-month review of seven officer-involved shootings for the second half of 2023 is a reflection of the conflicting opposites that APD embodies. On the one had, APD is successfully implementing the mandated reforms and is achieving constitutional policing practices. On the other, APD is still having an alarming number of police shootings of suspects.  The report indicates that it can be attributed to the fact that APD officers are being confronted with more and more armed and aggressive offenders. The report says 7 out of 7 Officer Involved Shooting incidents involved an individual armed with a gun or knife or edged weapon with 5 of those were armed with a gun. Two out of 7 Officer Involved Shooting incidents involved individuals who were shooting at officers at the time of the Officer Involved Shooting incident.

Despite the improvement and gains made by APD in the implementation of the reforms, APD police officer shootings and the killing of civilians is occurring at an alarming rate. In terms of overall shootings, both fatal and non-fatal, law enforcement officers in Albuquerque and surrounding Bernalillo County shot 131 people between 2013 and 2022.

On April 10, the national nonprofit Mapping Police Violence reported that last year, APD killed 10.6 people per million residents, which is more than any police department of comparable size in the nation. APD was ranked No. 1 in police officers killing civilians in a listing of 50 largest cities in the United States.

The Court Approved Settlement Agreement was not designed to guarantee or completely stop nor prevent police officer shootings. It was designed to implement constitutional policing practices, especially when dealing with the mentally ill. There never was a guarantee that police officer shootings would go down or simply never occur even with reforms.

What the Court Approved Settlement Agreement reforms ensure is that police officers are being held accountable when they violate constitutional policing practices and people’s civil rights. All that really can be done is to train and implement constitutional policing practices in the hopes that it will bring down police officer shootings of civilians.