On Thursday, September 7 Governor Michelle Lujan Grisham signed an Executive Order declaring gun violence and drug abuse a statewide public health emergency and declaring what she called an “epidemic of gun violence” in New Mexico. The executive order was signed in the wake of a road-rage shooting death of an 11-year-old boy leaving Isotopes Park Wednesday, September 6. Lujan Grisham also cited the shooting deaths of 3 teenagers or children since late July, including the 5-year-old girl killed while sleeping in a mobile home in mid-August.

The executive order sets aside $750,000 in emergency funds to help pay for the order and  protect public safety while also minimizing economic or physical harm. The governor also  appointed  former New Mexico State Police Chief Pete Kassetas to head up a task force on gun violence.

The Governor said she would meet with law enforcement and criminal justice officials to strategize over how to crack down on gun violence. The public health emergency will be in effect until October 6.

The executive order was a accompanied by a letter Lujan Grisham sent to U.S. Attorney General Merrick Garland, the fourth in a year, urging him to assign federal agents to New Mexico to help tackle escalating gun violence. Lujan Grisham said in her letter to AG Garland:

“Attorney General Garland, I have asked you — in fact begged you — to send additional federal agents to New Mexico on multiple occasions, only to be met with deafening silence.”

Gov. Michelle Lujan Grisham said this when she signed the executive order:

“I want to know that every parent is making sure their guns are locked up. I want to know that district attorneys and judges are using every tool at their disposal to hold bad actors accountable. I want to know that every gun store is not allowing straw purchases. I want to know that every law enforcement agency is using our red flag law.  … But until that happens in every community in our state, New Mexicans will continue to die.”

In a news release, Lujan Grisham also called on Albuquerque Mayor Tim Keller to “take every possible action to stem the flow of illegal drugs and guns into your city.”

Mayor Tim Keller’s office spokesperson Ava Montoya said in response to the Governor’s executive order:

“This is a powerful opportunity for leaders to listen to Albuquerque police officers. We welcome any and all help, from dealing with the national fentanyl problem to statewide gun violence laws and extra officers in Albuquerque. … The sooner we can get past finger pointing to real solutions, the more lives we can save.”

You can read the entire Executive Order at this link:

Click to access Executive-Order-2023-132.pdf

The link to news source material is here:

https://www.abqjournal.com/news/governor-declares-public-health-emergency-over-gun-violence/article_3aa8745e-4ddf-11ee-8cab-a76598fc8965.html#tncms-source=home-featured-7-block

EMERGENCY PUBLIC HEALTH ORDER ISSUED

On Friday, September 8, pursuant to Governor Lujan Grisham’s Executive Order declaring gun violence and illegal drugs a public health emergency, NM Secretary of Health Patrick M. Allen Secretary issued a sweeping Public Health Oder. The new public health order became effective Friday, September 8.  After 30 days, the Governor said they will evaluate whether they should renew the order or make adjustments.

You can read the Public Health Order here at this link:

https://cv.nmhealth.org/wp-content/uploads/2023/09/090823-PHO-guns-and-drug-abuse.pdf

MAIN PROVISIONS OF PUBLIC HEALTH ORDER

The Public Health Order bans the carrying of firearms, concealed or openly, in any public space in Bernalillo County and any state property in New Mexico. Specifically, no firearms are allowed on state property, including state buildings and schools. This also includes other places of education where children gather, such as parks.

The Public Health Order is a statewide mandate, but it only suspends open and concealed carry laws in communities with extremely high violent crime rates and firearm-related emergency room visits which as it stands only includes Albuquerque.

The Public Health Order requires monthly inspections of licensed firearm dealers and wastewater testing for certain drugs, such as fentanyl, at all public schools.

The Regulation and Licensing Division will conduct monthly inspections of licensed firearm dealers to ensure compliance with all sales and storage laws.

The Department of Health, along with the Environment Department, will begin wastewater testing for illegal substances such as fentanyl at schools.

The Department of Health will compile and issue a comprehensive report on gunshot victims presenting at hospitals in New Mexico, which shall include and if available:

1. Demographic data of gunshot victims, including age, gender, race, and ethnicity;
2. Data on gunshot victim’s healthcare outcomes;
3. The brand and caliber of the firearm used;
4. The general circumstances leading to the injury;
5. The impact of gunshot victims on New Mexico’s healthcare system;
6. Any other pertinent information

New Mexico State Police will add officers in Albuquerque with funding for overtime provided.

The Children, Youth and Families Department will immediately suspend the Juvenile Detention Alternative Initiative and evaluate juvenile probation protocols.

Violating the public health order could result in civil citations and penalties and a fine of up to $5,000.

https://www.governor.state.nm.us/2023/09/08/governor-announces-statewide-enforcement-plan-for-gun-violence-fentanyl-reduction-plan-includes-30-day-suspension-of-concealed-open-carry-in-albuquerque-and-bernalillo-county/

EXCEPTIONS TO THE ORDER

There are several exceptions to the order. The public health order does not impact private property, licensed firearm dealers, firing ranges, or shooting competitions. However, under the order anyone traveling between those locations must store their guns in a locked container or safety box. Firearm owners who would like a free trigger lock can call (505) 984-3085 or email info@newmexicanstopreventgunviolence.org

The order does not apply to law enforcement officers or licensed security officers.

The Governor explained during her September 8 news conference how the order will affect New Mexico’s open carry law and she said this:

“No person other than a law enforcement officers or licensed security officers shall possess a firearm either openly or concealed within cities or counties, averaging 1,000 or more violent crimes per 100,000 and more than 90 firearm-related emergency department visits.”

According to those standards, Bernalillo County and Albuquerque are the only two places in the state right now that are affected by the emergency order.

IT’S COMPLICATED

On September 8,  Governor Lujan Grisham held a news conference  announcing the Public Health Order accompanied by Department of Public Safety Deputy Cabinet Secretary Benjamin Baker, Bernalillo County Sherriff John Allen, APD Chief Harold Medina and former State Police Chief Pete Kassetas who she announced she appointed as Crime Reduction Director.

Lujan Grisham announced that immediate efforts to enforce the orders will include sending a “significant” number of State Police officers to help authorities fight crime and arrest wanted individuals in Bernalillo County. The Governor declined to put a number on how many state police officers would be sent to Albuquerque.

In 2019, Lujan Grisham did something similar, known as the Metro Surge Operation, after University of New Mexico baseball player Jackson Weller was fatally shot in Albuquerque. The Metro Surge Operation resulted in many of the prosecutions falling apart when State Police the officers did not show up to hearings because they had returned home across the state where they lived after the Metro Surge Operation ended.

Lujan Grisham responded to questions regarding the failures of the Metro Surge by saying:

“Unlike the surge, which worked, it wasn’t sustained. And the initial surge didn’t have all of the operational impacts that it needed — lessons learned. … We’re going to have to make sure that our resources are aligned, including prosecutorial resources, so that we don’t let bad actors off the hook because we don’t have the right people in the right place with the right information to pursue a prosecution.”

Governor Lujan Grisham acknowledged that homicides in Bernalillo County and Albuquerque are down from last year, but she said more needs to be done. She said this about the Public Health Order:

“The purpose is to try to create a cooling off period while we figure out how we can better address public safety and gun violence.  … No one right now in New Mexico, particularly in Albuquerque, is safe at a movie theater, at a park, at a school, at a grocery store, at an Isotopes game … You just aren’t safe. I can’t guarantee it and neither can the men and the women who put on a uniform every day.”

The Governor acknowledged the ban was “a sacrifice” for responsible gun owners and she said “responsible gun owners are certainly not our problem [and] have never been our problem.” She also said not all law enforcement leaders in Bernalillo County and across the state agreed with the gun ban and she stressed  that State Police officers dispatched to the area would enforce it.

As for enforcement, Governor Lujan Grisham admitted enforcement will be “complicated”. She said her office is working with New Mexico State Police and District Attorneys on how it will work. The governor says anyone caught breaking the order will fall under a “civil violation” connected to her public health order.

The Governor said she does not  expect criminals to follow the order but  she hopes the order  is “a resounding message,” to everyone else in the community to report gun crime. The Governor said this:

“The point here is, is that, if everyone did it, and I wasn’t legally challenged, you would have fewer risks on the street, and I could safely say, to every New Mexican, particularly those folks living in Albuquerque and Bernalillo County, I believe that you’re safer for the next 30 days, we have to wait and see.”

At the end of the 30 day Public Health Order enforcement period, the Governor said a data assessment will be made and a  decision will be made  on whether to remove the order. However the Governor said this:

“[I] bet it’s not over in 30 days. … And I’m sure some things will work better than others, and I’m sure things will get adjusted, and I’m sure I’ll get restrictions that make it clear what it can and cannot do. … And we keep fighting until every child, every family, every neighbor, every community, every city, every village is the safest it can possibly be in the state of New Mexico.”

https://www.abqjournal.com/nm-gov-plans-to-ban-firearms-in-public-spaces-in-bernalillo-county/article_19700bf2-4e94-11ee-bda3-c7c4b8f7cad5.html#tncms-source=home-featured-7-block

LEGAL CHALLENGE FILED

During her September 8 press conference, Governor Lujan Grisham said the Public Health Order will likely face a legal challenge.  Lujan Grisham said this:

“I can invoke additional powers. … No constitutional right, in my view, including my oath, is intended to be absolute. … I’ve warned everyone that we expect a direct challenge, probably as you’re writing this we’re getting a challenge, and that’s the way it should work. But I have to take a tough direct stand, or basically I’m just ignoring the fact that we lost an 11-year-old, another child.”

Zachary Fort with the New Mexico Shooting Sports Association said the organization is already prepared to legally challenge the order and will file a lawsuit within days. Fort said this:

“What the governor [is trying to] … do flies directly in the face of  [New York State Rifle & Pistol Association v. Bruen the] decision by the Supreme Court, where they found that you have a constitutionally protected right to carry a firearm outside your own home. … The Supreme Court said that very clearly in their Bruen decision. So, it’s clearly contradictory to that.”

EDITOR’S NOTE:  In the June 2022 Bruen case, the United states Supreme Court expanded the right of law-abiding Americans to carry guns in public for self-defense. The case ruling takes away the ability to take into account arguments about a compelling government interest, like the gun violence that Lujan Grisham said prompted her order. Now, judges must solely rely on whether any similar historical examples exist.

On September 9, a federal  lawsuit was filed arguing the Public Health Order is unconstitutional in violation of the second amendment and by not allowing citizens to exercise their right to carry firearms. The federal lawsuit was filed by Albuquerque resident Foster Allen Haines in conjunction with the National Association for Gun Rights, or NAGR, claiming that Lujan Grisham’s order is unconstitutional and seeking damages. Timothy White, the attorney who filed the suit said this to the Albuquerque Journal:

“Nothing else to say really, just that the NAGR and Mr. Haines represent thousands of New Mexicans that are not going to put up with tyranny.”

Links to quoted news sources are here:

https://www.abqjournal.com/news/legal-fight-mounts-local-leaders-weigh-in-after-lujan-grisham-suspends-the-right-to-carry/article_529ed876-70b3-52c3-b8f5-e3bef44271df.html#tncms-source=home-featured-7-block

https://www.abqjournal.com/nm-gov-plans-to-ban-firearms-in-public-spaces-in-bernalillo-county/article_19700bf2-4e94-11ee-bda3-c7c4b8f7cad5.html#tncms-source=home-featured-7-block

https://www.koat.com/article/new-mexicos-gun-violence-health-order-legal-challenge/45056038

https://www.krqe.com/news/new-mexico/gov-lujan-grisham-suspends-open-concealed-carry-in-bernalillo-county/

LAW ENFORCEMENT OFFICIALS DECLINING TO ENFORCE

Albuquerque Police Chief Harold Medina for his part said during the press conference APD would not be enforcing the order.  Medina emphasized that doing so could violate the APD’s police reform settlement agreement with the U.S. Department of Justice. Chief Medina  emphasized the need to keep people charged in certain crimes in jail until trial but also to provide resources to the Metropolitan Detention Center, where 26 people have died since 2020 from a variety of causes, many of them health-related.

Bernalillo County Sherriff John Allen, although appearing at the press conference with the Governor, expressed serious reservations about the Governor’s orders.  Sherriff Allen issued a press release saying as much and which said in part:

“Today, Governor Michelle Lujan Grisham issued an emergency order temporarily suspending open and concealed carry laws in Albuquerque and throughout Bernalillo County for the next 30 days. This move has been positioned as a response to the alarming and tragic rise in gun violence, particularly the heart-wrenching death of an 11-year-old boy this past week.

…

However, as the elected Sheriff, I have reservations regarding this order. While I understand and appreciate the urgency, the temporary ban challenges the foundation of our Constitution, which I swore an oath to uphold. I am wary of placing my deputies in positions that could lead to civil liability conflicts, as well as the potential risks posed by prohibiting law-abiding citizens from their constitutional right to self-defense.”

On September 9 Bernalillo County District Attorney Sam Bregman, who was  appointed by Lujan Grisham in January to fill the unexpired term of Raul Torrez who was elected Attorney General, joined Albuquerque Mayor Tim Keller and Police Chief Harold Medina saying they would not enforce the order.

“As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional. … This office will continue to focus on criminals of any age that use guns in the commission of a crime.”

REPUBLICAN OFFICIALS REACT

Republican Public officials were quick to react and condemn Governor Lujan Grisham’s orders.

On September 9,  state Republican Representative Stefani Lord of Sandia Park and John Block of Alamogordo called for Lujan Grisham’s impeachment, saying her order violates constitutional rights and is “illegal in nature.” Lord said this:

“This is an abhorrent attempt at imposing a radical, progressive agenda on an unwilling populous.  … I have a newsflash for the Governor: The Second Amendment is an absolute right, and so is my authority to impeach you for violating your oath to New Mexico and the United States.”

New Mexico Senate Republican Leader Greg Baca issued the following statement:

“A child is murdered, the perpetrator is still on the loose, and what does the governor do? She throws the mayor of Albuquerque under the bus and then targets law-abiding citizens with an unconstitutional gun order. Tragically, this is what we have come to expect from an administration that refuses to take responsibility for the crime epidemic gripping our state. It is time for the governor to stop pointing fingers and admit that her soft-on-crime approach has failed and put the safety of all New Mexicans in great jeopardy.”

NM House Republican Leader Ryan Lane issued the following statement:

“It is unfortunate that the Governor has decided to politicize the death of an 11-year-old to push her anti-gun agenda. What’s likewise unfortunate is that with billions in revenue this state has not funded meaningful criminal justice reform including addressing reckless pre-trial release policies and behavioral health rehabilitation. The Democrat’s policies have created and exacerbated the crime crisis that is literally killing New Mexicans daily. It is unacceptable that it has taken this long to notice the number of everyday New Mexicans that are being affected by criminal violence.”

Republican Party of New Mexico Chairman Steve Pierce issued the following statement:

“She knew her order was illegal and did it anyway, just like the lawbreakers in our state. Criminals will not be affected by more laws since they don’t follow our laws now nor are they held responsible for breaking any of them.”

Republican and Former Governor Susana Martinez said this:

We cannot have political grandstanding, reckless and unconstitutional “emergency health orders’ being issued that do nothing to criminals, but instead take aim at law abiding citizens. Stripping gun rights of law-abiding citizens does not decrease crime rates. In fact, it leaves law abiding citizens more vulnerable and helpless against those who commit violent crimes.”

Republican Bernalillo County Commissioner Walt Benson said Lujan Grisham is punishing law-abiding citizens instead of pursuing violent criminals “with vigor” and  called the order “an overreach against the wrong population.” Commissioner Benson said this:

“The people with concealed carry, they’re not the problem out there. They’re the sheepdogs that are out there, those are the people that you do trust.  It’s the criminals with illegal guns and no respect for life. And no respect for laws. They’re the ones that you have to worry about.”

Links to quoted news sources are here:

https://www.kob.com/new-mexico/open-and-concealed-carry-laws-suspended-in-albuquerque-bernalillo-county-for-30-days/

https://www.koat.com/article/new-mexicos-gun-violence-health-order-legal-challenge/45056038

https://www.koat.com/article/governor-public-gun-ban-public-safety-concern/45065277

https://www.krqe.com/news/new-mexico/gov-lujan-grisham-suspends-open-concealed-carry-in-bernalillo-county/

https://www.abqjournal.com/news/legal-fight-mounts-local-leaders-weigh-in-after-lujan-grisham-suspends-the-right-to-carry/article_529ed876-70b3-52c3-b8f5-e3bef44271df.html#tncms-source=home-featured-7-block

https://www.abqjournal.com/nm-gov-plans-to-ban-firearms-in-public-spaces-in-bernalillo-county/article_19700bf2-4e94-11ee-bda3-c7c4b8f7cad5.html#tncms-source=home-featured-7-block

https://www.abqjournal.com/nm-gov-plans-to-ban-firearms-in-public-spaces-in-bernalillo-county/article_19700bf2-4e94-11ee-bda3-c7c4b8f7cad5.html#tncms-source=home-featured-7-block

RECALLING 2023 NEW MEXICO LEGISLATIVE SESSION GUN CONTROL MEASURES

Governor Michelle Lujan’s Grisham’s issuance of the Executive Orders should not come as any  surprise and are likely motivated in part by the sure frustration she is likely experiencing with the failure of the New Mexico legislature doing anything meaningful when it comes to gun control. For that reasons, the legislation that failed in the 2023 New Mexico legislature merits review.

The 2023 New Mexico 60 day legislative began on January 17 and  came to an abrupt end on March 18 at 12 noon as did the fate of major gun control measures. Upwards of 40 gun control measures were introduced, but only 10 were seriously considered and of those 10, only 2 made it through the session to become law.

When the session began on January 17, Governor Michelle Lujan Grisham in  her “State of the State” address announced her support of the following 4 gun control measures:

• Banning the sale of AR-15-style rifles.
• Allowing crime victims to sue gun manufacturers.
• Making it a crime to fail to properly secure a firearm that’s accessible to an unsupervised minor.
• Closing a loophole in state law to allow prosecution when a person buys a gun for a someone who isn’t legally able to make the purchase themselves, a transaction known as a straw purchase.

GUN CONTROL MEASURES INTRODUCED

There were 10 major gun-control measure bills introduced and seriously considered in the New Mexico House or Senate. Those measures were:

House Bill 9 is the Bennie Hargrove Gun Safety Act also know as “Bennies Bill” make it a misdemeanor to negligently allow a child access to a firearm and would make it a felony if that negligence resulted in someone dying or suffering great bodily harm.

House Bill 50 prohibits magazines with more than 10 rounds.

House Bill 72 prohibits possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.

House Bill 100 would establish a 14-day waiting period for the purchase of any firearm and requires 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.

House Bill 101 as written would have  made it a fourth-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.  It would restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms.

House Bill 306 sought to prevent gun straw purchases, a type of firearm purchase where someone buys a firearm for another person who is legally banned from owning firearms, such as a convicted felon.

Senate Bill 44 would make it a misdemeanor to carry a firearm within 100 feet of a polling location on election day or during early voting. On-duty law enforcement officers and security personnel would be exempt.

Senate Bill 116 would establish 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. The bill would effectively raise the minimum age for buying an AR-15-style rifle from 18 to 21.

Senate Bill 171 sought to ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.

Senate Bill 428 would have 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.

FATE OF GUN CONTROL MEASURES IN 2023 SESSION

On March 18,  at the conclusion of the 2023 Legislative Session, only 2 of the 10 bills were enacted by the legislature, only 1 bill has been signed into law by the Governor,  2 advanced through one chamber and  awaited  action in another, 2 awaited action in both chambers and 4  never made it out of any committee.

LEGISLATION APPROVE BY LAWMAKERS

The following legislation was enacted:

1. House Bill 9: The bill is referred to as “Bennies Bill”  and makes it a crime to store a firearm in a way that negligently disregards the ability of a minor to access it.  On March 14, Governor Michelle Lujan Grisham sign the legislation into law
2. House Bill 306: Prohibit buying a firearm for another person who is legally banned from purchasing it on their own.

ADVANCED THROUGH ONE CHAMBER, AWAITED ACTION IN OTHER

The following legislation advanced through one  chamber but was not voted upon in the second chamber:

3. Senate Bill 44: Prohibit carrying a firearm within 100 feet of a polling place during an election.
4. Senate Bill 428: Include firearms in the Unfair Practices Act

AWAITED ACTION IN EACH CHAMBER NEEDING  THE OTHER’S APPROVAL

The following passed one chamber but was not voted on by the second:

5. House Bill 100: Establish a 14-day waiting period for the purchase of a firearm
6. Senate Bill 427: Establish a 14-day waiting period, but with an exception for buyers who have a permit to carry a concealed firearm.

DIED IN COMMITTEE

The following bills were referred to a committee but they were never voted  out of committee:

7. Senate Bill 116: Raise the minimum age to 21 for purchasing or possessing an automatic or semiautomatic firearm.
8. House Bill 101: Prohibit sale or possession of assault weapons and assault weapon attachments.
9. Senate Bill 428 would include firearms in the Unfair Practices Act
10. House Bill 50 prohibits magazines with more than 10 rounds.

COMMENTARY AND ANALYSIS

There is absolutely no doubt that gun violence and violent crime are out of control in Albuquerque and in the state driven by the proliferation of guns and illicit drugs. Notwithstanding, Governor Michelle Lujan’s Grisham’s Executive Oder as well as the Public Health Care Order are very ill advised and they are unconstitutional.

Simply put, there is no such thing as a state public health emergency exception to the United States Constitution. The orders will likely be found so broad as to be a clear violation of US Constitutional Rights and the Second Amendment Right to Bear Arms. The blunt reality is that the Governor’s Executive Order and Public Health Order  will not result in reducing gun violence nor address the proliferation of guns.

The Governor’s actions will accomplish nothing other than ginning up Republican and Second Amendment Rights advocate ire that in turn will contribute nothing to the discussion of real solutions to the state’s gun violence and high violent crime rates. Absent from the Governor’s September 7 and 8^th press conferences was the presence of any of the New Mexico legislature Democratic leadership and that is very troubling.

GOVERNOR SHOULD IMMEDIATELY RETRACT ORDERS

Governor Lujan Grisham should immediately cancel and withdraw her Executive Order and the Public Health Care orders.  The issuance of the orders will likely result in the Governor’s poll numbers of support to plummet given New Mexico’s “gun culture” which is too bad and a self inflicted wound.  It will not be the first time where Lujan Grisham issues Executive Orders that negatively impact her popularity. Her Public Health Care Orders regarding the Covid Pandemic had an impact on her popularity, but at least those orders could be easily justified involving a legitimate health care crisis and those health care orders were indeed constitutional and likely saved lives.  

Rather than issuing executive orders declaring a public health crisis that were ostensibly a knee jerk reaction to the killing of a child in a road rage incident, the Governor’s efforts would be better spent on proposing meaningful legislation she wants in the upcoming 2024 legislative session which begins on January 16, 2024.  The session is the 30 short session where the Governor will dictate what measures can be considered.

ENACT “OMNIBUS GUN CONTROL AND VIOLENT CRIME SENTENCING ACT”

The current makeup of the New Mexico legislature is 45 Democrats and 25 Republicans in the House with 27 Democrats and 15 Republicans in the Senate.  What is very discouraging is the fact that the New Mexico legislature is decidedly in control by Democrats, yet very little to no progress is every made when it comes to gun control measures as Republicans out maneuver Democrats by relying on Democrats who also oppose gun control.

If Governor Lujan Grisham is  indeed sincere about the State’s crime crisis  she should propose the enactment of an “Omnibus Gun Control And Violent Crime Sentencing Act.”

CRIME AND PUNISHMENT MEASURES

The message that must be sent out loud and clear to violent criminals by our elected officials is that New Mexico has a zero tolerance of violent crimes committed with firearms and the only way to do that is with with enhanced sentencings.

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

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 blandishment 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.

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 all 8 bills that failed in the 2023 legislative session and other measures and would include the following:

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 fourth-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.

Established a 14-day waiting period for the purchase of any firearm and requires 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 enacts reasonable gun control measures in conjunction with crime and punishment measures, we can expect our violent crime rates to continue to increase, and God forbid, yet another killing of a child.

On September 7, the following report was published in the on-line news outlet the New Mexico Sun:

HEADLINE: “Annual APD force report shows decrease in force incidents, increase in police shootings”

By New Mexico Sun Report

Sep 7, 2023

The 2022 Albuquerque Police Department Annual Use of Force Report was recently released to the public, and it showed a few new trends. Overall, there was a decline in the number of incidents that used force by the APD, but an increase in the number of shootings by APD officers, numbers that alarmed some in the Albuquerque community.

“Albuquerque has changed and APD has changed over the 9 years since the CASA was negotiated. The city has become more violent and APD has been trained in constitutional policing practices,” Albuquerque attorney Pete Dinelli wrote in an Aug. 28 blog post. “It’s because of the city’s dramatic increase in overall crime rates that there have been more police officer involved shootings as police officers are finding themselves in more predicaments where they feel the need to protect themselves and not attempt to deescalate a situation and use force or deadly force.”

Last May, KRQE News reported that an annual force report is required of the city due to a 2014 Court-Approved Settlement Agreement with the U.S. Department of Justice after it was found that the Albuquerque Police Department (APD) engaged “in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment.” In order to be free of independent monitoring, the APD needs to reach a 95% compliance level was at 92% as of the date of the report.

In its report, the APD defines “force” as “any physical means used to defend the officer or other people, restrain, or otherwise gain physical control of an individual who is resisting.” In 2022, the APD had 590 force incidents and 626 force interactions, which was down 18% from 2021, when the APD had 764 force interactions, and down 35% from 2020, when the APD had 960 force interactions. The 2022 numbers are down from 2018 and 2019 as well.

Out of those force incidents and interactions, about 4% were determined to be outside of APD policy. According to APD, “force is deemed in policy when every force technique is used correctly and was deemed to be reasonable, necessary, proportional, and minimal.”

According to the report, in 2022 APD shot firearms at 18 individuals, a record high. Ten individuals were killed, and three were injured. In those 18 incidents, 14 times the individual was armed or attempting to arm themselves; three times the weapon was later found to be not lethal; and in one instance, the suspect was throwing rocks at officers. In total, 16 of those incidents were determined to be within APD policy, and two weren’t, and the officers in those two incidents were fired. The two incidents that weren’t within APD policy were the rock throwing incident, which wasn’t fatal, and a situation where a suspect had a key fob, which also wasn’t fatal.

“The tragic reality is the city will likely see more police officer involved shootings even if APD achieves 100% compliance in the 3 settlement compliance levels and as all 271 mandated police reforms under the settlement are implemented and as the DOJ prepares to leave,” Dinelli wrote in his blog post. “A violent city has become our new norm.”

According to an April report by KOAT, Albuquerque ranks 17th out of the 70 largest cities in the country for homicide rate, according to a report looking at trends for murders, rape, robbery, and aggravated assault. Albuquerque was one of 27 cities across the country that saw an increase in homicides in 2022, as there was a 5% drop in homicides nationwide.

The link to the New Mexico Sun column is here:

https://newmexicosun.com/stories/649553370-annual-apd-force-report-shows-decrease-in-force-incidents-increase-in-police-shootings

On September 1, the New Mexico Sun published the following guest opinion column:

HEADLINE: “APD Use of Force Down, Police Shooting Up; A violent city is now norm”

By Pete Dinelli

Sep 1, 2023

The Albuquerque Police Department released its Annual Use of Force Report for the year 2022.  The annual Use of Force report is required by the Federal Court Settlement Agreement with the U.S. Department of Justice.

The 2022 Use of Force Report provides the following key findings:

• In 2022, APD used force in 590 force incidents.
• In these 590 incidents, there were 626 force interactions where a single person had force used with them in response to resistance.
• Compared to 2021, there was an 18% decline in the number of force interactions from 764 to 626.
• Compared to 2020, there was a 35% decline in force interactions from 960 to 626.
• 587 people were involved in force interactions. 5% of people were involved in more than one force interaction; 26 people were involved in 2 incidents and 6 were involved in 3 interactions. No individual was involved in more than 3 use of force interactions during this year.
• The median age of people involved in force was 32 meaning that half of involved individuals were 32 or under and half were 32 or over.
• 25 out of 590 cases were deemed out of policy (4%). Four percent (26 out of 626) of force interactions were out of policy.
• In every 1,000 calls for service, force was used 1.64 times, down 16.7% from 2021.
• Force was used in 4.4 out of 100 custodial arrests, down 20% from 2021.
• SWAT was utilized 69 times.

In 2022, there was a record-high number of 18 police officer involved shootings. 14 people were armed, 8 fired a gun.  According to data released, the city had  half of the state’s violent crime in 2022 but has just 25% or so of its total population.  The Albuquerque Police Department reported that in November, 2022 gun law violations spiked 85%.

The last 2 years have  been two very violent years for Albuquerque.  In 2021, there were 117 homicides.  In 2022, there were 120 homicides, a historical high.

On  March 16, 2023,  APD released the 2022 crime statistics along with crime statistics for 2021 for a comparison. There was  a  3% decrease  in  overall crime and a 4% decrease in Crimes Against Persons and a 2% decrease in Crimes Against Property.

The slight 3% decrease in overall crime was over shadowed by the 24% spike in crimes against society which is  made up of drug and gun offenses and a 71% increase in murders over the last 6 years.  Over the last 6 years there has been a 28% increase in Aggravated Assaults which by definition includes the use of a firearms.

The Federal Court appointed monitor reports APD’s compliance levels currently are:

Primary Compliance 100%

Secondary Compliance 100%

Operational Compliance 92%

Once APD reaches 95% compliance in all 3 compliance levels, it must maintain them for 2 consecutive years before the case is dismissed.

Shootings by APD between 2018 and 2022 identified three common circumstances:

1. When officers are attempting to apprehend violent suspects;
2. When individuals are experiencing some kind of mental health episode;
3. When people with little criminal history are under the influence of drugs or alcohol and make bad decisions.

APD released data that shows there have been 56 police shootings dating back to 2018. Of the cases reviewed, 85% involved people who were armed with a gun or a weapon that appeared to be a firearm.  About 55% of the cases involved people under the influence of drugs or alcohol.

Albuquerque residents can take comfort that the 2022 Annual Use of Force Report shows that APD used force less in 2022 than in preceding years. Residents should be absolutely alarmed over the fact that there has been a spike in police officer involved shootings.  It was such shootings, accompanied by litigation and judgements against the city, that brought the Department of Justice to the City in 2013.

Albuquerque has changed and APD has changed over the 9 years since the settlement was negotiated. The city is violent and APD has been trained in constitutional policing practices.  It’s because of the city’s dramatic increase in violent crime that there has been more police officer involved shootings.  APD officers are in more predicaments where they feel the need to protect themselves, not attempt to deescalate and use force or deadly force.

The city will likely see more police officer involved shootings even if APD achieves 100% compliance with all 271 mandated police reforms under the settlement.

Pete Dinelli is a native of Albuquerque. He is a licensed New Mexico attorney with 27 years of municipal and state government service including as an assistant attorney general, assistant district attorney prosecuting violent crimes, city of Albuquerque deputy city attorney and chief public safety officer, Albuquerque city councilor, and several years in private practice. Dinelli publishes a blog covering politics in New Mexico: www.PeteDinelli.com.

The link to the NM Sun Guest column is here:

https://newmexicosun.com/stories/649416021-apd-use-of-force-down-police-shooting-up-a-violent-city-is-now-norm

___________________________

POSTSCRIPT

ABOUT THE NEW MEXICO SUN

The New Mexico Sun is part of the Sun Publishing group which is a nonprofit. The New Mexico Sun “mission statement” states in part:

“The New Mexico Sun was established to bring fresh light to issues that matter most to New Mexicans. It will cover the people, events, and wonders of our state. … The New Mexico Sun is non-partisan and fact-based, and we don’t maintain paywalls that lead to uneven information sharing. We don’t publish quotes from anonymous sources that lead to skepticism about our intentions, and we don’t bother our readers with annoying ads about products and services from non-locals that they will never buy. … Many New Mexico media outlets minimize or justify problematic issues based on the individuals involved or the power of their positions. Often reporters fail to ask hard questions, avoid making public officials uncomfortable, and then include only one side of a story. This approach doesn’t provide everything readers need to fully understand what is happening, why it matters, and how it will impact them or their families.”

The home page link to the New Mexico Sun is here:

https://newmexicosun.com/

On October 18, 2022, Mayor Tim Keller announced his “Housing Forward ABQ Plan”. It is a “multifaceted initiative” where Keller set the goal of adding 5,000 new housing units across the city by 2025 above and beyond what the private sector normally creates each year.  According to Keller, the city is in a major “housing crisis” and the city needs between 13,000 and 28,000 new housing units.

During his October 18 news conference announcing his “Housing Forward ABQ Plan” Keller  himself used a 33,000 figure to declare a housing crisis.  He emphasized the importance of amending the city’s Integrated Development Ordinance (IDO).  Keller said this:

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

A link to a blog article entitled “An In-Depth Analysis of Mayor Keller’s “Housing Forward ABQ Plan”; Plan Met With Hostility And Mistrust by Public; Viewed As Destroying Neighborhoods To Benefit Developers” can be found below.

Keller’s “Housing Forward ABQ Plan” included proposed enactment of 2 new city ordinances that would directly impact the city’s rental industry and major amendments to the city’s land use laws known as the Integrated Development Ordinance (IDO) that negatively impacted private property rights.

Keller’s “Housing Forward ABQ Plan” attempts to address the shortage of affordable housing with a number of very aggressive initiatives.  Those initiatives involved aggressive regulation of  the housing rental industry. Included in Keller’s original “Housing Forward ABQ Plan” were the following:

1. Enact a“Residential Tenant Protection Ordinance” to target what was declared “deceptive” practices and “unreasonable” fees charged by residential rental  proper owners and landlords. 
2. Amending City Zoning laws to allow Casita and Duplex Development on 68% of existing city residential development .
3. Enact a “Residential Rental Permit Ordinance” limiting and placing caps on short term rentals.

This blog article is a review and analysis of the ordinances that were rejected by the city council and amendments to the Integrated Development Ordinance (IDO) which the City Council approved to allow casitas but where the council rejected to allow duplex development. The article also includes Keller’s “Safe Outdoor Spaces” amendment to the IDO that he advocated for in 2022. Taken together, they reflect a pattern of interference with real property rights.

1. “RESIDENTIAL TENANT PROTECTION ORDINANCE”

It was Progressive Democrat Albuquerque City Councilor Tammy Fiebelkorn who sponsored the Residential Tenant Protection Ordinance. At the time of introduction, Fiebelkorn said tenants complained that they were paying a lot more for the apartments they rented than they expected because of “hidden fees”. The bill would have required landlords to post a list of application fees, minimum income and credit score requirements, plus background check results that could disqualify applicants.

The bill would have required the following:

Rental property owners and landlords would be required to make upfront disclosures to potential applicants.

Rental property owners and landlords would have to list any parking, amenity, pet or other fees, as well as any financial penalties tenants might face for late payments or other lease violations.

Rental property owners and landlords would also have to outline certain terms of their tenant-screening process so that would-be applicants knew ahead of time if they must have a specific credit score or income to qualify.

All application fees would be limited to $150 and require landlords refund it in cases where they rented the unit to someone else before processing others’ applications or when they denied an applicant without providing a reason.

Rental property owners and landlords   would have been prohibited from mandating that tenants have insurance for their personal property, though they could have still required that renters have insurance to cover damage to the rental unit.

Supporters described the bill as “common sense” protections for tenants. They argued the regulations would ease the burden on lower-income renters who currently struggle to pay multiple application fees and who need to know and plan for about all the fees they will have to pay while in a rental agreement.

Opponents of the bill, including the rental industry representatives, said it was “meddlesome”, “cumbersome”, “unnecessary” and interfered with property rights and contract rights .   It was argued passage would likely result in the raising of  rents to account for the new regulations.

On March 6, 2023 the Albuquerque City Council voted  4  YES and 5  NO  to kill Fiebelkorn’s “Residential Protection  Ordinance” as it had been amended since introduction in November of 2022. Voting YES with Fiebelkorn in favor of the bill were progressive Democrats City Councilor Pat Davis, Isaac Benton and moderate Democrat Klarissa Peña. The 5 who  voted  NO to kill the bill were conservative Republicans Dan Lewis, Trudy Jones,  Renee Grout and Brook Bassan joined by conservative Democrat Louis Sanchez.

COMMNENTARY AND ANALYSIS

The “Residential Tenant Protection Ordinance” was introduced in Novmeber 2022 after rent control was overwhelmingly reject by the New Mexico Legislature in 2022.   The ordinance was sponsored by Progressive Democrat City Councilor Tammy Fiebelkorn and  was supported 100% by Mayor Tim Keller who made it part of his “Housing Forward ABQ Plan”.

Fiebelkorn at the time of introduction proclaimed the  new ordinance was  a “logical progression” of the discussion on rent control. It never was. What it was is a reflection of Fiebelkorn’s resentment or downright hostility towards property owners and the apartment industry that resisted rent control. What it was is a reflection of Mayor Keller’s support of rent control as a means of dealing with the city’s shortage of affordable housing.

Fiebelkorn herself said this:

“Most of the landlords in our city are fair, transparent, very clear with what folks are going to get. It’s the few that are making it really hard.”

What Fiebelkorn was essentially saying with her sponsorship is she wanted to make the entire apartment rental industry miserable with city fees and bureaucratic mandates because “It’s the few that are making it really hard.” 

She proclaimed her Residential Tenant Protection Ordinance was  a relatively painless way to help Albuquerque residents living on the margins to deal with soaring rental housing costs.  The truth is, there was absolutely nothing “painless” about the ordinance when it comes to real property owners and how it interfered with their real property rights and their right to contract.

The only logical progression is the fact that Fiebelkorn is a self-proclaimed activist and who is considered the extremist on the city council who became upset with the City Council rejecting her politcal agenda to ask the New Mexico Legislature to repeal the state law that prevents cities throughout the state from implementing rent control.

The way the ordinance was written by Fiebelkorn is that it was a blatant attempt to usurp and contravene provisions of the New Mexico legislative enacted state Owner – Resident Relations Act. The Act mandates written ‘‘rental agreements’’ or leases and provides that all agreements between an owner and resident and all rules and regulations required under the act must be embodied in the terms and conditions of the written agreement concerning the use and occupancy of a dwelling unit or premises.  (47-8-3, P,  Definitions.) The Act has court enforcement provisions which has resulted in the Bernalillo County Metro Court having an entire division dealing with landlord-tenant disputes.

2. AMENDING CITY ZONING LAWS TO ALLOW CASITA AND DUPLEX DEVELOPMENT

The most controversial provision of Keller’s “Housing Forward ABQ” plan was the introduction to the City Council of City Council Ordinance 0-22-54.  The “Housing Forward ABQ Plan” was embodied in amendments to the Integrated Development (IDO) which is the city’s zoning laws. The IDO was enacted in 2017 and can be amended and updated once a year. Thus far, it has been amended by the City Council well over 250 times.

The proposed legislation known as O-22-54 was sponsored by Progressive City Councilor Isaac Benton, a retired architect and avowed “urbanist”, and Conservative Republican Trudy Jones, a retired realtor.  Mayor Keller called the legislation “transformative” updates to Albuquerque’s Integrated Development Ordinance (IDO) to carry out his “Housing Forward ABQ”.  

The amendments contained in 0-22-54 was to allow the construction of 750 square foot casitas and 750 square foot duplex additions on every single existing R-1 residential lot that already has single family house built on it in order to increase density. The amendments as originally proposed would allow one “casita” and one “duplex addition” with a kitchen and separate entrance to an existing structure on all built out lots.   City officials have said that 68% of the city’s existing housing is single-family detached homes with 120,000 existing residential lots with already built residences.

The zoning code amendments would have made both casitas and duplex additions “permissive uses”.  Historically, they have always been  “conditional uses”.  A “conditional use” requires an application process with the city Planning Department, notice to surrounding property owners and affected neighborhood associations and provides for appeal rights.  A “permissive use” would give the Planning  Department exclusive authority to issue permits for construction without notices and hearings and with no appeal process to surrounding property owners. Objecting property owners and neighborhood associations to the permissive casita and duplex uses would be relegated to filing lawsuits to enforce covenants and restrictions.

On June 21 the Albuquerque City Council voted 5-4 to approve the zoning code changes with amendments made to O-22-54.  The version of the bill that ultimately passed on a 5-4 vote was amended extensively. The city council voted to allow casita construction a “permissive use” in all single-family R–1 zone and reduce parking requirements for some multifamily properties and changing building height limitations.

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

 The 5 City Councilors who voted in favor of the amendments were the bill sponsors Progressive Democrat Isaac Benton and Conservative Republican Trudy Jones and Progressive Democrats Pat Davis and Tammy Fiebelkorn and Moderate Democrat Klarissa Pena. Voting NO were Conservative Democrat Louis Sanchez, and conservative Republicans Dan Lewis, Renee Grout and Brook Bassan.

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

Mayor Keller announced his administration’s goal is to review and approve 1,000 new casitas all over the city by 2025.  Keller announced the Planning Department will also “lower the bar” for property owners to build casitas and provide pre-approved casita designs. The city also wants to provide loans for building costs to homeowners that agree to rent their casita to those who use Section 8 housing vouchers.

COMMNENTARY AND ANALYSIS

It came as no surprise to anyone, especially established neighborhood associations for historic areas of the city like Barelas and the South Broadway and Martineztown area, that so called Progressive Democrat Isaac Benton and Conservative Republican Trudy Jones carried the water for Mayor Tim Keller and were the sponsors of Keller’s Housing Forward ABQ plan legislation amending the IDO.  Both city councilors have a distain for the previous comprehensive zoning code that was replaced by the IDO.  Both voted for the enactment of the IDO in 2017.

Benton for years advocated for major changes to ease up on restrictions on secondary dwelling units, casitas, in backyards over the objections of his own progressive constituents and the historical areas of the city he represents.  Benton admitted it when he said this:

“We’ve had these arguments over the years with some of my most progressive neighborhoods that don’t even want to have a secondary dwelling unit be allowed in their backyard or back on the alley. … You know, we’ve got to change that discussion. We have to open up for our neighbors, of all walks of life, to be able to live and work here.”

Republican Jones throughout her 16 years on the city council has always been considered in the pockets of the real estate and the development communities over the interests of property owners and neighborhoods. Over the years, she has received literally thousands of dollars in contributions from both the real estate industry and the development industry each time she has run for city council.  She has never gone the “public finance” route and has always privately financed her city council campaigns.  She was also the sponsor of the amendment to the IDO that removed the mandatory requirement for public input for special uses giving more authority to the planning department.

Reclassification zoning of all R-1 single-family lots to allow for both casita and duplex development would have encouraged large private investors and real estate developers, including out-of-state corporate entities, to buy up distressed properties to lease and convert whole blocks into casita and duplex rental areas.  This has already happened in the South area of the University of New Mexico dramatically degrading the character of neighborhoods and the city as a whole. It will now happen, or is already happening, in the South East Heights International District and historic areas of downtown.

To put the argument in perspective, an individual investor would have been be able to purchase single-family homes to rent and then build separate 750-square-foot free-standing casitas and duplexes. The result is a one-home rental being converted into 3 separate rental units, tripling investment and income. Such development would have increased an area’s property values and property taxes. It would have decreased the availability of affordable homes and raise rental prices even higher. It will increase gentrification in the more historical areas of the city as generational residents will be squeezed out by the developers and with increases in property taxes.

The Keller Administration has never discussed the actual cost of construction of 750 square foot casitas or even duplex remodeling. They simply presume property owners will be able to afford to do it themselves which is not at all  likely given the high cost of construction and materials.  Home builders serving the Albuquerque area estimate the cost to build residents in Albuquerque is between $175 to $275 per square foot. It’s a cost that equally applies to casitas.  To build and construct a 750 foot casita  at the $175 foot construction cost would be $131,425 (750 sq ft X 175 = $131,421). These are just actual construction costs.  The addition of plumbing, sewer, electrical and gas hook ups and permits will likely add an additional $30,000 to $50,000 to the final construction costs of a casita.

Very few people have the financial ability to invest another $130,000 to $150,000 in homes they already own. The casitas will be used predominantly by outside investors and developers as rental units. More outside investors are buying multifamily properties around the city. According to New Mexico Apartment Advisors CEO Todd Clarke, there are currently 1,999 investors looking in the Albuquerque multifamily market, a number that has increased sixfold since before the pandemic.

Supporters of casitas argued throughout the process they are needed to increase density, create affordable housing and to get away from “urban sprawl”.  They repeatedly made the misleading representation that many within the community want additional housing for extended families making reference to “mother-in-law quarters”.  Calling casitas “mother-in-law quarters”  was  nothing more than a ploy to make the proposal palatable to the general public.

People buy single detached homes wanting to live in low density neighborhoods not high-density areas that will reduce their quality of life and the peaceful use and enjoyment of their homes and families.  Allowing a casita or for that matter any duplex development, which in all likelihood will be rentals on single family properties, will seriously damage the character of any neighborhood.

3. RESIDENTIAL RENTAL PERMIT ORDINANCE

It was Progressive Democrat Albuquerque City Councilor Tammy Fiebelkorn who sponsored the Residential Rental Permit Ordinance.   On Monday August 21, 2023  the Albuquerque City Council  voted 3 YES and 6 NO to place a cap on the number of short-term rentals in the city in addition to the requirements of the 2020 short-term rental ordinance which requires short-term rental owners to obtain a permit and set certain occupancy limits. Councilors Pat Davis, Tammy Fiebelkorn and Isaac Benton voted in favor.  Councilors Dan Lewis, Louie Sanchez, Brook Bassan, Renée Grout, Klarissa Peña and Trudy Jones voted against.

The Keller Administration argued that there is a need to protect existing housing stock to make it available to all permanent residents and future residents so that they will always have access to a safe, stable home. The goal of the ordinance was to cap the number of short-term rentals like Airbnb and VRBO in an attempt to stop housing units from being removed from the overall housing market reducing the availability of homes for sale. The initiative was intended to boost housing stock in Albuquerque.

Under the original legislation, the permit cap would have been set at 1,800. The cap was raised from 1,200 in the original legislation to accommodate all current rentals in the city. In addition to the cap, the ordinance would have done the following:

• Limit the number of permits per owner to 3.
• People who currently own more than three rental properties would be able to keep all of their properties, and renew those permits in perpetuity but they would be prohibited from adding properties.
• All existing rental properties would be grandfathered into the 1,800 cap.
• Require a manager, either the owner or another party, to live or be based within 20 miles of the city limits, and be available 24/7 to respond to maintenance issues, security concerns, and complaints
• Require the manager’s contact information be included on the permit application
• Limit permits to natural persons, as opposed to corporations or other business entities
• Limit the number of rentals to 3 per individual operator. People who already own more than 3 rentals would be grandfathered in  and be able to renew permits for all their properties.
• Properties available for mid-length stays for traveling nurses or other transient workers would not be included. Only properties offering stays of 30 days or less will be included
• Corporations would still be able to own short-term rentals, but they would need to find a local manager to list their contact information and be available to guests.
• Increase the civil penalties for non-compliance with the ordinance.

During the August 21, 2023 city council meeting a floor substitute for the ordinance was introduced  which revised and removed much of the original legislation. The cap, local manager, and individual limits were slashed.  In their place was a minimum distance of 330 feet between short-term rental units. It also would have removed the criminal penalties for violations of existing short-term rental regulations.

Homeowners and housing advocates came out in favor of the original regulations, with a few public commenters describing the disruptions caused by vacation rentals in their neighborhoods. Several short-term rental operators spoke out against both versions of the bill.

The original ordinance sponsor Progressive Democrat City Councilor Tammy Fiebelkorn said she preferred the original legislation and  she said the floor substitute was a “compromise” between neighborhood and industry interests, and made an effort toward preserving housing stock.

The floor substitute failed and councilors voted 6-3 against adopting the replacement. Subsequently, the original legislation also failed 6-3. Progressive City Councilors Pat Davis, Tammy Fiebelkorn and Isaac Benton voted in favor.  Conservative Republican City Councilors Dan Lewis, Brook Bassan, Renée Grout, Trudy Jones, Conservative Democrat Louis Sanches and Moderate Democrat Klarissa Peña voted against.

https://www.abqjournal.com/news/local/city-council-votes-against-short-term-rental-regulations/article_bcdaa560-40a0-11ee-acf5-1be6efef4d07.html

https://www.krqe.com/news/albuquerque-metro/abq-city-council-makes-decision-on-short-term-rental-rules/#:~:text=Monday%20night%2C%20councilors%20in%20favor,six%2Dto%2Dthree%20vote.

https://www.kob.com/new-mexico/mayor-keller-asks-city-council-to-limit-short-term-rentals-in-albuquerque/

COMMNENTARY AND ANALYSIS

It came as absolutely no surprise that it was Progressive Democrat Albuquerque City Councilor Tammy Fiebelkorn who sponsored the Residential Rental Permit Ordinance (0-23-69).  It too was introduced by Fiebelkorn after rent control was overwhelmingly reject by the New Mexico Legislature in 2022.

Fiebelkorn at the time of introduction proclaimed her new ordinances were a “logical progression” of the discussion on rent control.  They never were. What both the “Residential Rental Permit Ordinance” and  the “Residential Tenant Protection Ordinance”  were  was a reflection of  Fiebelkorn’s resentment or downright hostility towards property owners and the apartment industry that resisted rent control.

The Residential Rental Permit Ordinance was part of Mayor Keller’s “Housing Forward ABQ” plan. It  is a reflection of Mayor Keller’s support of rent control as a means of dealing with the city’s shortage of affordable housing as it sought to regulate and cap short term rentals, also known as “Bed and Breakfast” rental units. The Keller Administration argued that there is a need to protect existing housing stock to make it available to all permanent residents and future residents so that they will always have access to a safe, stable home.

The below commentary was provided by Associate Broker Carl Vidal with the Irvie Homes Property Management.

“Despite Mayor Keller’s claims that short-term rentals reduce available housing to permanent residents, there is no evidence that banning or capping the number will increase the city’s overall housing supply to permanent residents.   AirDNA, a leader in short-term rental data, reports that 66% of short-term rentals in Albuquerque are part-time units. These homes are rented out periodically by locals to support their families and cover monthly bills.  The locals often reside in these homes while they’re not rented. In Albuquerque, short-term rentals account for only 0.007% of the housing inventory, and only 0.003% if we consider just full-time rentals.

Short-term rentals have significantly contributed to Albuquerque’s economy, generating an impressive $216 million in economic impact and creating over 2,280 jobs locally. Moreover, the city, state, and county have collected around $14 million in taxes in 2022 alone from these rentals. With over 2,500 hosts leasing short-term rentals across the city, last year’s 431,000 guests spent an average of $361 per overnight visit. These figures demonstrate the essential role of short-term rentals in the city’s economy, making them a vital asset that should be allowed to exist and thrive.

Short-term rentals play a crucial role in providing housing for transient  workers in various industries, including healthcare traveling nurses and locum doctors, traveling contractors, actors, directors, film workers, and staff from Intel, Facebook, Sandia Labs, and Kirtland Airforce Base. These rentals serve as a lifeline for workers who would otherwise struggle to find affordable housing during their stay. Without short-term rentals, many of these workers simply will not be able to find housing locally, highlighting the critical role these rentals play in supporting the local economy and workforce.

Short-term rentals provide an accessible investment opportunity for local Albuquerque residents, with over 2,000 hosts across the city relying on the income they generate. In contrast, building hotels requires a vast amount of funding that is typically only accessible to the wealthiest members of our society. For instance, a mid-tier 100 room hotel costs an estimated $22.5 million, with a minimum down payment of $4.5 million, making it unaffordable for the vast majority of New Mexicans. As a result, out-of-state corporations often finance these projects, taking profits out of our state. Short-term rentals serve as an investment vehicle for the 99%, ensuring that the income generated stays within our community and benefits local residents.

Limiting short-term rentals to only 1,800 units will strip future generations of New Mexicans of their opportunity to benefit from this innovative and growing sector.   The “Housing Forward ABQ” plan to limit short term rentals  is a restriction on  commerce and interfere with property owners’ rights.  It will give an unfair advantage to out-of-state owned hotels in supply and demand economics.  By limiting the number of licenses available, the city is undermining a vital source of income for thousands of locals. Short-term rentals offer a valuable opportunity for the future and should be given a chance to thrive.”

      4. “SAFE OUTDOOR SPACES”

It was April 1, 2022, in his proposed 2022-2023 budget, that Mayor Tim  Keller,  advocated and  supported an amendment to the Integrated Development Ordinance that allows for the land use known as “Safe Outdoor Spaces” to deal with the homeless crisis.  “Safe outdoor spaces” will permit 2 homeless encampments in all 9 city council districts with 40 designated spaces for tents, they will allow upwards of 50 people, require hand washing stations, toilets and showers, require a management plan, 6 foot fencing and social services offered. Although the Integrated Development Ordinance amendment sets a limit of two in each of the city’s 9 council districts, the cap would not apply to those hosted by religious institutions.

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

On January 4,  2023 the city council attempted to “override” Keller’s veto, but failed to secure the necessary 6 votes.

COMMNENTARY AND ANALYSIS

Safe Outdoor Spaces become one of the most divisive issues dealt with by the City Council in some time. It not only divided the city council but also resulted in major opposition by neighborhood associations and homeowners who became very angry. Opposition to Safe Outdoor Spaces was shamelessly dismissed as “not in my backyard.”

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

Safe Outdoor Space tent encampments will destroy neighborhoods and make the city a magnet for the homeless. The general public has legitimate concerns that Safe Outdoor Space homeless tent encampments will become crime-infested nuisances, such was the case with Coronado Park.

The homeless crisis will not be solved by the city but must be managed with permanent housing assistance and service programs, not nuisance tent encampments.

FINAL COMMENTARY

The new city ordinances and changes to the Integrated Development Ordinance and embodied in Mayor Tim Keller’s  “Housing Forward ABQ Plan”  taken together reflect an unmistakable pattern of interference by Mayor Tim Keller with private real property rights under the guise of addressing a housing shortage and dealing with the homeless crisis.  

The housing shortage is related to economics, the development community’s inability to keep up with supply and demand and the public’s inability to purchase housing or qualify for housing mortgage loans.  The shortage of rental properties has resulted in dramatic increases in rents.

Many of the 250 plus zoning changes to the Integrated Development Ordinance made by the City Council and many embodied in Keller’s “Housing Forward Abq Plan” were in fact the easing up of zoning restrictions, such as easing up on height and distance requirements for new construction  and minimum parking requirements, that were viewed as an impediment to the development and construction industry.

Mayor Tim Keller calls himself a Progressive Democrat as he gave a wink and a nod to the business and development community with his “Housing Forward ABQ Plan” that overwhelming favors developers over neighborhoods. What Mayor Tim Keller was really doing with his “Housing Forward Abq Plan” was catering to the development and construction industry to the determent of neighborhoods.

What Mayor Tim Keller’s “transformative changes” to the Integrated Development Ordinance and his  “Housing Forward Abq Plan” was is Mayor Tim Keller using  the short-term housing “crunch” to declare it a “housing crisis” to allow the city council to shove his Housing Forward ABQ Plan down the throats of city property owners to the benefit of investors and developers.

An In-Depth Analysis of Mayor Keller’s “Housing Forward ABQ Plan”; Plan Met With Hostility And Mistrust by Public; Viewed As Destroying Neighborhoods To Benefit Developers

On July 18, 2023, the Bernalillo County Metropolitan Court announced the launch of the Overdose Prevention, Treatment and Intervention Court (“OPT-In” Court).  It is the first court program in the state designed to prevent opioid overdose upon contact with the criminal justice system. The “OPT-In” Court will connect newly arrested individuals at high risk of overdose with lifesaving resources and treatment before they are released from custody back into the community.

According the announcement the “Opt-In Court” recognizes that there is a critical window in which the courts can intervene and help people engage with resources to assist them on their path to recovery.  The goal of the “Opt-In Court”  is to save lives by diverting individuals at high risk of overdose into treatment.

Metropolitan Court Judge Claire A. McDaniel, who battled a heroin addiction herself more than a decade ago, will preside over the local diversion program.  Judge McDaniel called the OPT-In Court “a different approach” toward drug users and said this:

“We’re trying to treat [drug users] with dignity and respect and make them feel human again, and give them what the appropriate treatment is … We’re being very realistic. We know you can’t cure addiction, it’s a lifelong struggle. It really is just about getting people to not die and get their feet in the door of treatment and on a path to recovery. … Opt-In Court recognizes that there is a critical window in which we can intervene and help people engage with resources to assist them on their path to recovery. …  Our goal is to save lives by diverting individuals at high risk of overdose into treatment. We are hopeful that this approach will also reduce recidivism rates.”

COLLABORATIVE EFFORT

The “OPT-In Court”  is a collaborative effort among the Second Judicial District Attorney’s Office, the Law Offices of the Public Defender, the Private Defense Bar, and community providers. It is inspired by the first Opioid Treatment Court out of Buffalo, New York.

As part of the program, all individuals booked on felony charges in the Metropolitan Detention Center will undergo screening by court staff to determine overdose risk. If deemed at-risk, the OPT-In Court Team will review to determine if the individual is a good fit for the program as agreed by the prosecution and defense. If accepted, the court will coordinate the release, transportation, and immediate placement of the individual into detox services or treatment.

FENTANYL CRISIS

The creation of the “OPT-In Court”  was caused in part by the “fentanyl crisis.”  Between 2019 and mid-2022, fentanyl killed at least 1,215 people in New Mexico. Last year, fentanyl was involved in at least 574 overdoses across New Mexico. Since April 19, the program has identified 147 people who were booked into MDC with a high risk of overdose.

HOW IT WORKS

All charged defendants booked on felony charges in the Metro Detention Center will be screened. Those charged with murder, manslaughter or sexual offenses are not considered for the program. If court staff, prosecutors, and defenders decide an individual might be helped by the treatment, the individual will be sent to detox or treatment, rather than traditional jail. The accused person would meet with caseworkers and Judge McDaniel during the 90-day program. After that, they’ll have their case dismissed. Participants may be referred for inpatient or outpatient detox as necessary and will have access to Medication Assisted Treatment (MAT)

When someone is booked into the Metropolitan Detention Center on a felony charge, they speak with Metro Court’s background investigators. With OPT-In, several questions have been added to that conversation to learn if someone is at risk of overdose upon release from MDC.

Sample questions include questions like:

Do you use drugs alone?

Have you overdosed in the past?

Do you mix opiates with other drugs, particularly alcohol or benzodiazepines like Xanax?

If a defendant is  flagged as high-risk, the OPT-In team will determine if the person is “a good fit” for the program, which must be agreed upon by the prosecution and defense. Those charged with murder, manslaughter or sexual offenses are not eligible. If accepted into OPT-In, Metro Court will coordinate the person’s release from jail and placement into detox services or treatment within the community. While in the program, participants will also meet with OPT-In case managers weekly, meet with McDaniel monthly for status conferences and have access to methadone or suboxone treatment.

Upon successful completion of the program, the individual’s case will be dismissed with prejudice meaning the charges will be legally barred from ever being brought again.  The individual defendant will have continued access to the court’s case manager for long-term support or care.  If the team determines that an individual needs additional time in the program beyond the court’s jurisdiction on the felony charges, the DA’s Office may amend the charge(s) to a misdemeanor.

Judge McDaniel had this to say about the overall screening process:

“ If you’re a fentanyl user, that already pretty much qualifies you of being someone at risk of overdose.  … With fentanyl, it seems like things are falling apart for people much faster. … And it’s a lot more lethal. … Our program will facilitate a warm handoff at every point and cut the red tape in recognition that these people are in survival mode. … And if they’re released without any of this, they’re at risk of overdose or recidivism, and going right back into jail on new charges.”

Judge McDaniel acknowledged  that due to the high need for the services provided by the “OPT-In Court”, she knows there are going to be limitations such as a waiting list and barriers such as inpatient programs that don’t allow methadone. McDaniel said this:

“We have to work within those limitations. … There’s all these weird things that we haven’t even thought of but there’s such a need in the community. We’re just trying to get off the ground and running.”

Funding for OPT-In Court comes from the court’s general fund through utilization of existing court staff and resources.

DISTRICT ATTORNEY AND PUBLIC DEFENDER SUPPORT OPT-IN COURT

Second Judicial District Attorney Sam Bregman and the Law Offices of the Public Defender have both expressed support for OPT-In and its mission.

District Attorney Bregman said his office is “all for it,” calling fentanyl a “huge driver of crime in our community.” Bregman said this:

“We want this program to save lives and we want people to get out of this cycle of crime because they’re feeding their addiction. … We want people to get the resources they need and hopefully (they’ll) never be seen in the criminal justice system again.”

Public Defender Dennica Torres said this:

“It is encouraging to see our courts acting on the fact that we can’t arrest and jail our way out of addiction issues. … It recognizes that people suffering through addiction have other challenges in their lives that make it so hard to get and stay sober, this court program and prosecutor buy-in has the potential to support substantial improvement in our clients’ lives and in our community.”

The links to quoted news source material are here:

https://metro.nmcourts.gov/2023/07/18/metro-court-launches-first-court-program-in-the-state-to-target-those-at-immediate-risk-of-opioid-overdose/#:~:text=The%20Overdose%20Prevention%2C%20Treatment%20and,custody%20back%20into%20the%20community.

https://www.krqe.com/news/albuquerque-metro/bernalillo-starts-new-court-based-opioid-diversion-program/

https://www.abqjournal.com/news/metro-court-seeks-to-break-a-vicious-cycle-by-getting-inmates-into-drug-treatment/article_8f3dfd72-281e-11ee-b599-33ac6ed47a46.html

TWO OTHER METRO COURT DIVERSION COURTS

There are two other Metro Court Diversion courts that are worth mentioning. They are the DWI Recovery Court and the Veterans Court.

DWI RECOVERY COURT

The DWI recovery court has been around since 1987.  The DWI Recovery Court program team consists of 1  judge, 5 probation officers, a lead worker, a program manager, and a programs division director.

The program blends judicial oversight by a program judge, supervision by probation officers, a designated court calendar, use of incentives to reward and improve performance, graduated sanctions for non–compliance, and comprehensive substance abuse treatment and ancillary services to address causative factors associated with the offense.

Since 1997, the program has served over 4,200 program participants including more than 2,700 successful graduates.

the DWI Recovery Court Program has been successful at maintaining a 73% graduation success rate and an historical 5.5% three–year recidivism rate.

This is in comparison to a 40–60% recidivism rate of general population DWI offenders who do not enter into a drug court program.

This program is extremely cost efficient, costing an average of approximately $10.26 per day versus the daily incarceration cost in Bernalillo County of close to $80.00 per day.

VETERANS COURT

The Veterans Court has the following 6 eligibility criteria for participants:

1. Must be 18 years of age or over
2. Charged with a misdemeanor offense in Bernalillo County
3. Must have served in the U.S. Armed Forces or the corresponding reserve branches and/or members of the National Guard. Less than honorable discharges are reviewed on a case by case basis
4. Eligibility for CVC is not determined by eligibility for benefits from the Veterans Administration
5. An identified treatment need/issue substantially related to the offense
6. Consent of the prosecuting authority for pre-plea referral to the CVC or post plea if a presumptive commitment to prison/ jail exists.

Acceptance in the program is contingent upon meeting the full eligibility criteria of the program and approval of the CVC Presiding Judge.

You may be excluded from the CVC Program if you:

• Have a conviction or a guilty plea to any offense deemed violent or inappropriate for the CVC.
• Have been found guilty for any degree of murder, voluntary or involuntary manslaughter, or an offense involving a weapon.
• Have been found guilty of a sexual offense.
• Have another pending criminal case in which you would be deemed ineligible
• Are on probation/parole supervision for another case.

COMMENTARY AND ANALYSIS

By all accounts, diversion criminal courts such as the DWI Recovery Court and the Veterans Court are indeed highly effective.  Such courts  place  tremendous concentration on diversion from jailing with an emphasis on treatment and counselling. The DWI Recovery Court has been especially successful since 997 with a 73% graduation success rate and an historical 5.5% three–year recidivism rate.

The Overdose Prevention, Treatment and Intervention Court is following the  essential elements of opioid intervention courts and will likely be highly successful recognizing that the jailing of induvial who are drug addicted will in no way solve drug addiction.

 

On September 1, the New Mexico Environment Department’s Occupational Health and Safety Bureau (OHSB) announced it has  cited the City of Albuquerque and Consolidated Builders of NM, LLC for workplace safety issues related to asbestos exposures at the Women’s Shelter within the Gateway Center homeless shelter. Consolidated Builders of NM, LLC is the private company contracted by the city to do the remodeling of the Gibson medical center for the Gateway Homeless shelter.

The OHSB investigation found that the City of Albuquerque and Consolidated Builders violated the New Mexico Occupational Health and Safety Act by demonstrating indifference for the safety and health of employees and exposed employees to asbestos between April 11, 2022 and March 9, 2023.  One of  the most damning finding made by OSHA was that city staff  raised safety concerns multiple times but the Gateway remodeling project was politically driven with stop orders from the City’s Risk Management Division totally ignored to allow work to continue on the project.

The city was issued a $761,112 fine for five Willful-Serious citations and two Serious citations. Consolidated Builders was issued a $331,475 fine for eight Willful-Serious citations and one Serious citation. The fine levied against the City of Albuquerque is the largest fine ever filed against the city by OHSB.

It was on March 7, 2023, the New Mexico Environment Department’s Occupational Health & Safety Bureau (OHSB) received reports of possible employee exposure to asbestos at the City of Albuquerque’s Gateway Center.

On March 9, 2023, OHSB opened an investigation into the allegation as required by the Occupational Health and Safety Act and its corresponding regulations. The Act and regulations also require OHSB to issue citations for violations and complete an inspection report summarizing the findings of an investigation within six months of an incident.

Prior to OHSB issuing the citations, the Keller Administration acknowledged responsibility for mistakes and notified individuals they identified, including  city leaders, who had visited the Gateway Women’s Shelter construction area within the Gibson Health Hub between April 11, 2022 and March 9, 2023 and were told of their potential exposure to asbestos.  Individuals who believed they were exposed were told to contact their medical provider and ask for guidance.

CITATIONS AND FINES

The city was issued a $761,112 fine for five Willful-Serious citations and two Serious citations. Consolidated Builders was issued a $331,475 fine for 8  Willful-Serious citations and 1 Serious citation.

The “willful-serious citations” to the City of Albuquerque include:

• Failing to conduct asbestos work within a regulated area;
• Failing to ensure that an exposure assessment was conducted at the beginning of the project  before potential exposures could occur;
• Failing to ensure that an asbestos “competent person” was present to supervise certain types of work;
• Failing to determine the presence, location, and quantity of asbestos-containing material at the Gateway Women’s Shelter prior to work beginning; and
• Failing to ensure that all waste material was properly contained and disposed of.

The “serious citations” to the City of Albuquerque include:

• Failing to communicate the hazards associated with exposure to respirable asbestos fibers to employees;
• Failing to designate a “competent person” with the qualifications and authorities to ensure worker safety.

The “willful-serious citations” to Consolidated Builders include:

• Failing to notify other employers that asbestos work was being conducted;
• Failing to conduct asbestos work within a regulated area;
• Failing to ensure that an exposure assessment was conducted at the beginning of the project;
• Failing to dispose of asbestos materials in a leak-tight container;
• Failing to use wet methods to clean up asbestos-containing materials;
• Failing to communicate the hazards associated with exposure to respirable asbestos fibers to employees;
• Failing to train employees on properly performing asbestos removal;
• Failing to protect employees from the release of asbestos when removing floor tiles.

The “serious citation” to the Consolidated Builders include:

• Failing to implement a respiratory protection program for employees using respirators.

The inspection citations and reports can be viewed here.

PURCHASE AND REMODELING FOR 24-7 HOMELESS SHELTER

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

Since the April 6, 2021 purchase of the Gibson Medical Center for conversion to the Gateway homeless shelter, completion of the project has experienced delay, after delay after delay. The delays have included neighborhood protests, a civil lawsuit and zoning battle and asbestos discovery requiring remediation. The first phases of the Gateway Center, including 50 beds for women, were recently completed. Construction costs for phase one was $7 million.

In March of this year asbestos was discovered in the construction zone. A month later, an inspection from the city Planning Department’s Building Safety Division found that asbestos removal protocols had not been correctly followed during construction of the overnight beds area.

In April, the city announced that the area had been abated, after sealing off the 4,000-square-foot area on March 9 following positive asbestos testing results. The area makes up about 20% of the full area that was remodeled.

CITY ADMITS VIOLATIONS, DISCIPLINARY ACTION TAKEN

Under requirements of the New Mexico Occupational Health and Safety Act, the City of Albuquerque and Consolidated Builders have 15 business days after receiving the citation to either pay the penalty and provide OHSB with certification of corrective action, or to contest the citation with the Occupational Health and Safety Review Commission.

On September 1, the Keller Administration sent out a news release concerning the citations. In the statement, the city admits they did not follow the law in removing the asbestos. Albuquerque’s General Services Director John Craig said this in the news release:

“We know that removal procedures were not correctly followed for a small section of the project, and we have corrected these issues on all other sections and are ensuring ongoing construction is in compliance.”

According to the news release, the city attorney is currently evaluating the citations. The news release did not say whether the city would dispute the fine, just that city attorneys were looking over the citations.

The city’s project manager received disciplinary action and managers were given more training.

The links to quoted news sources are here:

OHSB Investigation of City of Albuquerque Gateway Center at the Gibson Health Hub 

 https://www.krqe.com/news/albuquerque-metro/osha-fines-city-of-albuquerque-for-gateway-center-asbestos/

 https://www.kob.com/new-mexico/city-of-albuquerque-construction-company-issued-citations-for-exposing-workers-to-asbestos/

https://www.koat.com/article/city-of-albuquerque-fined-for-exposing-workers-to-asbestos/44978130

https://www.abq.news/stories/breaking-city-of-albuquerque-and-consolidated-builders-fined-over-1m-for-asbestos-exposure-at,42673?newsletter=42642

https://www.abqjournal.com/news/city-of-albuquerque-contractor-cited-for-exposing-workers-to-asbestos-at-gateway-center/article_f21b64ae-491e-11ee-902c-9f6f5ebc1c54.html#tncms-source=home-featured-7-block

KRQE NEWS 13 INVESTIGATION REPORT REVISITED

It was on April 25, 2023 that KRQE News 13 Investigation Reporter Larry Barker reported on the Keller Administration’s discovery of asbestos at the new Gateway renovation construction site.  Barker reported how high-ranking city officials and project staff violated safety regulations jeopardizing the health and safety of employees because the city did no testing prior to demolition work.

Contractors doing work on the Gateway Center’s second floor used a mechanical scraper to rip out old tile flooring containing asbestos. The debris was swept up with brooms and thrown in the trash. Workers were not wearing Personal Protections Equipment (PPE)  and all this was done while the HVAC system was still running, possibly transporting the dust through the building where people could have easily breathed in the toxic lung cancer causing materials.

The Chief of New Mexico’s Occupational Health and Safety Bureau Bob Genoway said he was stunned the city did this.  Genoway said this:

“To willfully violate an OSHA standard is, is you know, it’s almost it’s almost hard to understand why somebody would do that. You know, we may not get to the answer of why that was done.”

PROJECT POLITICALLY DRIVEN

Barker also reported on the coverup of the cleanup efforts resulting in delays of completion of the Gateway Homeless Shelter.  The most damning finding made by OSHA was that city staff had raised safety concerns multiple times but the Gateway remodeling project is politically driven with stop orders from the City’s Risk Management Division ignored.

Following is the report edited and rearranged for brevity:

Internal city documents obtained by KRQE News 13 show how Albuquerque officials involved with the Gateway renovation blatantly violated federal health and Safety regulations putting lives at risk. …  

Breathing asbestos fibers can be deadly, so only specially trained and certified work crews are allowed to operate in asbestos remediation areas. Full body suits, respirators, gloves, and boots are required. Asbestos debris must be bagged and disposed of in a hazardous waste repository.

 According to a city timeline, last year contractors doing renovation work on the Gateway Center’s second floor used a large mechanical scraper to rip out and shred old tile flooring containing asbestos. The debris was swept up with brooms and thrown in the trash. There were no worker safeguards, no notifications, no protective gear, no respirators, and no regard for the law.

 An internal city document noted:

 “There was no pause on the construction site with the reasoning that Risk (Management) does not have jurisdiction to shut down construction sites.” 

 Renovation construction was halted only briefly and then resumed.

On March 9, 2023, test results confirmed the presence of asbestos in the 2nd-floor work area. OHSB Investigators directed the city to halt all work in the asbestos area.

OHSB Safety Compliance Officer Lorenzo Montoya said this:

“It is imperative that a regulated area be established immediately. The area must be secured from unauthorized persons and demarcated immediately.”

The Occupational Health and Safety Bureau (OHSB) initiated an investigation [and it found as follows] :

 “Staff have raised safety concerns multiple times but the project is politically driven and two work stop orders from the City’s Risk Management  Division have been ignored. …

 No inspection or testing was done prior to demolition work. Workers are not wearing PPE and are scraping, and grinding. The HVAC system is still running and may have transported dust through the building.

On February 28, 2023, Albuquerque’s Risk Management Division informed Gateway Project Manager Jesse Valdez that “There is high possibility that there is asbestos in the areas of the Gibson Health Hub that are under construction. All work in these areas must cease until an asbestos test has been performed.”

New Mexico’s Occupational Health and Safety Bureau Chief Bob Genoway said this:

“We consider (these) to be serious allegations that warranted an OSHA investigation. … Bottom line is we’re trying to make sure that employees don’t become seriously ill or injured from hazards in the workplace. Asbestos is a recognized, serious hazard in the workplace and can cause serious diseases.”

…  .”

 Links to quoted news sources are here:

https://www.krqe.com/news/larry-barker/albuquerques-gateway-center-the-danger-zone/?ipid=promo-link-block1

https://www.krqe.com/news/larry-barker/behind-the-story-larry-barker-investigates-the-gateway-centers-asbestos-problem/

COMMENTARY AND ANALYSIS

Since the April 6, 2021 purchase of the Gibson Medical Center for conversion to the Gateway homeless shelter, completion of the project has experienced delay, after delay, after delay. The plague of delays has included neighborhood protests, a civil lawsuit and zoning battle and asbestos discovery requiring remediation. There is little to no doubt that all the delays in completing the Gateway 24-7 homeless shelter fall squarely on the shoulders of Mayor Tim Keller because of his personal involvenent and the way he and his administration have handled the project.

The City of Albuquerque and the remodeling contractor being fined over $1 Million  for asbestos exposure at the  gateway Center Homeless Shelter and the Keller Administration’s intentional conduct  is yet another sign  of  ineptness and  incompetency by Mayor Tim Keller and his administration.

There are 3 specific areas of incompetency and ineptness that can be identified with the Gateway Homeless shelter that fall squarely on the shoulders of Mayor Tim Keller :

The first was the actual selection and purchase of the massive 572,000 square-foot Gibson Medical Center complex, formerly the Lovelace Hospital for $15 million in order to convert it into a 24-7 homeless shelter.  The massive complex purchased has a 201-bed capacity, numerous physician offices, treatment and operating rooms, administration offices, a large lobby area as well as 250-to-300-person auditorium.

The city implemented a site selection process that originally identified 3 appropriate sites. On February 27, 2020 the City of Albuquerque released a report and analysis announcing the top 3 preferred locations. The 3 locations were:

1. University of New Mexico (UNM) land next to the state laboratory, near Interstate 25 and Camino de Salud
2. Coronado Park at 3rd Street and Interstate 40
3. The former Lovelace hospital on Gibson

The UNM property was Keller’s first preferred choice and Keller took it upon himself to do a press conference to promote his selection and pressure the UNM regents to allow it.  When UNM balked at the idea, Keller quickly move to purchase the Gibson Medical Center.

Keller failed to even try to get input from the surrounding neighborhoods. Keller  did not  even attempt to reach a consensus with neighborhood associations and major protests occurred. Neighborhood protests erupted over Keller’s selection of the medical center. Mayor Tim Keller mishandled the site selection process for the shelter, especially with his shaming, guilt trip press conference to force UNM regent’s hand, and his failing to build true consensus on what the city should do and where the shelter should go.

The second sign of ineptness and incompetence by Mayor Tim  Keller  that contributed to the delays is that Mayor Keller and his administration ostensibly did not know and did not do due diligence to determine if the Gibson Medical facility had the proper zoning to allow a 24-7 overnight shelter. The commercial property was purchased by the city “as is”. What Keller and company found out only after the purchase was that the facility and the area was zoned for a hospital and that a conditional use for a 24-7 overnight shelter was required under the city’s zoning laws known as the Integrated Development Ordinance (IDO).  Rather than taking steps to rely on the existing zoning as a hospital and use the facility as a mental health treatment and substance abuse hospital facility for the homeless, the building sat vacant as to city usage and the city is still scrambling to the get the shelter fully operational up and and running.

The third sign of ineptness and incompetence by Mayor Tim Keller was the discovery of asbestos on the property that required remediation.  It is difficult to understand how  the City Planning Department, the Municipal Development Department or the Environmental Health Department did not realize that in the 1950s, when the original Lovelace Hospital was built,  asbestos was commonly used in building materials like insulation, ceiling tiles, and flooring.  What is  very disturbing is that the Occupational Health and Safety Bureau (OHSB) initiated an investigation after receiving complaints that allege “No inspection or testing was done prior to demolition work” and the city covered it up. The most obvious explanation for city departments failing  to act is that the Gateway Homeless shelter is one of Mayor Keller’s legacy projects and he likely exerted great pressure on his department heads to get the project done and be damned OSHA requirements, hence the finding that the project was politically driven.

FINAL COMMENTARY

On April 21, the city announced that the asbestos abatement had been completed. That may be true for the area 4,000 square foot area that was  being remodeled for the new Gateway service area, but that area is a fraction of the massive 572,000 square-foot complex.

It is more likely than not  that the rest of the 572,000 square-foot complex is riddle with asbestos.  Any future remodeling will require asbestos remediation jacking up the costs by millions of dollars. In otherwards, Mayor Tim Keller had the city buy a money pit of endless expenditures needed for asbestos remediation.

This coming from a Mayor who was a State Auditor and who created his reputation as a white knight combating “waste, fraud and abuse” in government spending.

 

The Fourteenth Amendment, Section 3 of the United States Constitution provides:   

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

ABC NEWS ARTICLE

On August 25, 2023, ABC News published the following news article written by reporters Hannah Demissie and Laura Gersony entitled “14th Amendment, Section 3: A new legal battle against Trump takes shape” “Efforts to disqualify Trump from state ballots are starting to materialize.”  What makes the news article remarkable is that it reports on a legal theory that is being advanced by Republican conservative scholars. It also reports on a New Mexico connection. For that reason the article with edits and highlighting quotations  is being posted here:

“Former President Donald Trump‘s legal battles are piling up: in Washington, Georgia, New York  and the list goes on. But even if all of those cases work out in his favor, advocates say a new legal challenge could still sideline him.

Separate from the criminal cases, over the past few weeks a growing body of conservative scholars have raised the constitutional argument that Trump’s efforts to overturn the results of the 2020 election make him ineligible to hold federal office ever again. That disqualification argument boils down to Section 3 of the U.S. Constitution’s 14th Amendment, which says that a public official is not eligible to assume public office if they “engaged in insurrection or rebellion against” the United States, or had “given aid or comfort to the enemies thereof,” unless they are granted amnesty by a two-thirds vote of Congress.

Advocacy groups have long argued that Trump’s behavior after the 2020 election fits those criteria. The argument gained new life earlier this month when two members of the conservative Federalist Society, William Baude and Michael Stokes Paulsen, endorsed it in the pages of the Pennsylvania Law Review [where they wrote]:

“If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency.”

Since then, two more legal scholars,  retired conservative federal judge J. Michael Luttig and Harvard Law Professor Emeritus Laurence Tribe,  made the same case in an article published in The Atlantic  [and they wrote]:

“The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. … The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”

The argument [was made] on the Republican presidential debate stage in Milwaukee [by Arkansas Gov. Asa Hutchinson when he said, eliciting a mix of cheers and boos, from the audience]:

“Over a year ago, I said that Donald Trump was morally disqualified from being president again as a result of what happened on January 6th. More people are understanding the importance of that, including conservative legal scholars. … I’m not going to support somebody who’s been convicted of a serious felony or who is disqualified under our Constitution.”

Baude and Paulsen maintain their theory is “self-executing.” They say that means that public elections officials don’t need special permission from lawmakers to disqualify Trump from the ballot.  If they believe the argument is valid, they can disqualify potential candidates on their own.

Not only that, the scholars argue, the election officials are legally required to do so.  Bode and Paulsen wrote:

“No official should shrink from these duties. It would be wrong — indeed, arguably itself a breach of one’s constitutional oath of office — to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three”.

Alternatively, ordinary citizens could file challenges on the same grounds with state election officials themselves.

Either scenario is almost certain to face legal and political blowback, and the argument could end up before the U.S. Supreme Court. The most immediate hurdle for those disqualification efforts might be timing as the legal challenges must be brought during specific time periods that vary depending on the state where they are brought.

PLANS MATERIALIZE AT STATE LEVEL

Bryant “Corky” Messner, a lawyer who lives in New Hampshire, became the first person to announce concrete plans to do just that.   Messner was endorsed by Donald Trump when he ran for a New Hampshire’s U.S. Senate seat in 2020. Now, he says that as a veteran and a graduate of West Point, his civic duty compels him to try to keep Trump off the ballot.  Messner said this:

“I really don’t view myself as turning on Trump, as odd as that sounds.  I love this country. I’ve served this country. I’ve taken an oath to this country. My sons are serving right now and I believe someone’s got to step up to defend the Constitution.”

Messner first announced his plans on a local radio show. … He says he is still doing initial legal due diligence on the topic and finding a lawyer to bring the case. He plans to finance the legal challenge himself and through his own personal network.

New Hampshire’s Secretary of State Office confirmed to ABC News that Messner met with Secretary of State David Scanlan to discuss Section 3 of the 14th Amendment.  The communications director for Scanlan told ABC News

“Secretary Scanlan will be conferring with the New Hampshire Attorney General and other legal counsel on this issue; however, he believes any action taken under this Constitutional provision will have to be based on Judicial guidance.”

A NEW MEXICO CONNECTION

Citizens for Responsibility and Ethics in Washington (CREW), another legal advocacy group, is also pursuing a push to this effect. Last September, CREW was successful in its effort to remove a New Mexico County Commissioner Couy Griffin from his post due to his participation in the January 6 attack on the U.S. Capitol.

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

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

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

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

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

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

SEPTEMBER 6 NEWS UPDATE:

On September 6  CREW  in Washington  filed a lawsuit to bar former former President Trump from the primary ballot in Colorado, arguing he is ineligible to run for the White House again under the 14th Amendment of the US Constitution.  The complaint was filed on behalf of six Republican and unaffiliated Colorado voters by the group. It will jolt an already unsettled 2024 primary campaign that features the leading Republican candidate facing four separate criminal cases. Liberal group is demanding  that states’ top election officials bar Trump under the clause that prohibits those who “engaged in an insurrection or rebellion” against the Constitution from holding higher office.  The litigation is the first by an organization with significant legal resources. It may lead to similar challenges in other states, holding out the potential for conflicting rulings that would require the Supreme Court to settle. Colorado’s secretary of state, Democrat Jena Griswold, said in a statement that she hoped “this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”  The lawsuit contends the case is clear, given the attempt by then-President Trump to overturn his 2020 election loss to  President Biden and his support for the assault of the U.S. Capitol on Jan. 6, 2021.

https://abcnews.go.com/Politics/wireStory/lawsuit-contends-constitutions-insurrection-clause-bars-trump-running-102966637#:~:text=DENVER%20%2D%2D%20A%20liberal%20group,have%20supported%20an%20%E2%80%9Cinsurrection.%E2%80%9D

Free Speech For People, an organization that unsuccessfully challenged the candidacies of several members of Congress in 2022 under the disqualification clause of the 14th Amendment, also plans to take similar actions to attempt to prevent Trump from running for office.

The organization plans to pursue two different paths. The first path involves sending a letter to all 50 secretaries of state asking them to exercise their authority to rule that Trump is disqualified under Section 3 of the 14th Amendment. The second path, when the timing is right, they said, is to file legal challenges to Trump’s eligibility for office using state law procedures where available.

Ron Fein, a lawyer involved in the organization’s effort to prevent Trump from holding office, told ABC News that they are prepared to take on the former president. Fein said this:

“We’re prepared to challenge Trump’s candidacy in multiple states. We’re not going to tell him which states and when in advance. … We have assembled top-notch legal teams and are working with voters in these multiple states and partners outside as well.”

Trump’s campaign team is preparing for the challenges, telling the Washington Post in April the former president is being targeted. Trump campaign spokesman Steven Cheung said in a statement to the Washington Post  said this

“What these undemocratic organizations are doing is blatant election interference and tampering. … They are not even trying to hide it anymore and it is sad they want to deprive the American people of choosing Donald Trump — the overwhelming front-runner by far — as their President. History will not judge them kindly.”

… .

UPHILL BATTLE EXPECTED

“…[T]he efforts to keep Trump off the ballot for his alleged role around the attack on the Capitol and efforts to overturn the election grow …  is an up hill battle, due in part because there is no consensus on if January 6 was an insurrection.  Kevin Wagner, a professor at Florida Atlantic University, said this:

“The challenge here is that the 14th Amendment isn’t necessarily self-executing. In other words, it doesn’t just automatically happen and there is some question about what it means to be engaged in insurrection or rebellion and how that is defined. The challenge for us is that historically, it hasn’t been well-defined.”

“The question is about what is “participating in a rebellion or an insurrection.” There is dispute and people feel strongly what happened was essentially an insurrection — and it’s often referred to that way fairly regularly — but others have suggested that this was a protest that may have gotten out of hand — and may have even become criminal — but didn’t rise to a level of a rebellion or an insurrection. And the provision of the 14th Amendment really turns on how it is that we assess what happened,” he said.

The links to the quoted article with video and photos are here:

14th Amendment, Section 3: A new legal battle against Trump takes shape originally appeared on abcnews.go.com

CONFLICTING LEGAL OPINIONS

The online politcal news and commentary outlet ‘THE WEEK” reported on August 9:

Trump undeniably “meets the standard” of the 14th Amendment, said Donald K. Sherman at The Hill. “All three branches of the government have identified the attack on the Capitol as an insurrection,” and federal judges, House and Senate majorities, and the bipartisan House January  6 committee have identified “Trump as its central cause.” As Baude and Paulsen, the conservative scholars, note, Trump doesn’t have to be convicted of treason or any other crime to be barred from seeking office. State and federal election officials can make the call on their own. A New Mexico County commissioner has already been booted from public life for recruiting Jan. 6 insurrectionists. Trump is next.

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Alan Dershowitz[a  prominent criminal defense attorney] said in his Alan Dershowitz Newsletter  … the 14th Amendment doesn’t apply to Trump or any of the Jan. 6 rioters … . The “text and history” of the 14th Amendment make it clear the “disability provision was intended to apply to those who served in the Confederacy during the Civil War.” It was never supposed to empower “one party to disqualify the leading candidate of the other party in any future elections.” Determining who had sided with the Confederacy was easy, but there’s “no formal mechanism” for disqualifying somebody now. We would be left with some states striking Trump from the ballot and others leaving him on, which would trigger “a constitutional crisis” and open the door for Republican states to disqualify candidates who supported rebellious riots over, say, the killing of George Floyd.

 Baude and Paulsen rightly point out that Section 3 of the 14th Amendment “did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision,” said former federal appellate judge J. Michael Luttig and Harvard constitutional law professor emeritus Laurence H. Tribe in The Atlantic. The “post-Civil War Framers presciently foresaw” that it would never outlive the purpose it was intended to serve. “To the contrary, this provision of our Constitution continues to protect the republic from those bent on its dissolution.” Any official who has taken an oath to uphold the Constitution is “obligated to enforce” the disqualification clause. This part of the Constitution is worth defending like any other.

The link to the full unedited new article is here:

https://theweek.com/donald-trump/1026134/14th-amendment-disqualify-trump-election

CHALLENGES AHEAD IN BATTLEGROUND STATES

“Election officials in key battleground states are studying the legal viability of efforts to disqualify Donald Trump from running for president, based on the 14th Amendment’s ban on insurrectionists holding public office.

New Hampshire Secretary of State David Scanlan, a Republican, said that he asked the state’s attorney general to examine the matter and advise him on the “provision’s potential applicability to the upcoming presidential election cycle.” The attorney general’s office said it was “carefully reviewing the legal issues.”  In the statement, Scanlan said he wasn’t taking a position on the disqualification question and was not “seeking to take certain action” but was going to study the matter in anticipation of lawsuits.

Democrat Michigan Secretary of State Jocelyn Benson said in an interview with MSNBC she would consult with her fellow election officials in other key states and that they will “likely need to act in concert, if we act at all” regarding the constitutional challenges, which she predicted will ultimately be settled “in the courts.”

Free Speech For People, sent letters on Wednesday to the top election officials in Florida, Ohio, Wisconsin, New Hampshire and New Mexico, urging them to invoke the “Constitution’s Insurrectionist Disqualification Clause” and use their authority to “exclude Mr. Trump from the ballot.” They previously sent letters to Benson in Michigan, as well as the secretaries of state in Georgia, Pennsylvania, Nevada and North Carolina.

It seems unlikely that any secretary of state would take such aggressive action like this on their own, and even if they did, it would be immediately challenged in court. Protracted litigation, as happened last year against the GOP lawmakers, is much more likely. Multiple groups have promised to file lawsuits seeking to disqualify Trump.”

The links to the quoted news sources is  here:

https://www.cnn.com/2023/08/31/politics/state-efforts-to-disqualify-donald-trump/index.html

https://www.kron4.com/top-stories/ap-top-headlines/ap-cowboys-for-trump-cofounder-appeals-ban-from-public-office/

SECRETARY OF STATE MAGGIE TOULUSE OLIVER REACTS

Secretary of State Maggie Toulouse Oliver’s office has said that the constitutionality of Trump being on the ballot in New Mexico is a matter that will be studied if and when the time comes:

We’ve been getting inquiries into our office about this. All candidates for 2024 elections are required to file with our office in February 2024. We are aware of and are reviewing the legal theories regarding the 14th Amendment that conclude Donald Trump is ineligible to run for President. If Donald Trump files in New Mexico to run for President, we will make a determination at that time based on our understanding of New Mexico law and the requirements to run for office in New Mexico. Any determination about a specific candidate’s eligibility for the ballot will be made after the candidate filing day in February 2024. 

Links to related news sources are here:

https://www.cnn.com/2023/08/31/politics/state-efforts-to-disqualify-donald-trump/index.html

DEAD HEAT POLLING  WITH 10% UNDECIDED

On August 1, a new New York Times and Siena College poll revealed that  a rematch between President Joe Biden and former President Donald Trump shows the two men locked in a dead heat.  The poll was  conducted July 23-27, found if the election were held now, 43% of respondents would vote for Biden and 43% would support Trump.

A solid  10% of respondents declined to put their support behind either candidate, with 4% saying they would back another person’s bid, 4% undecided and 6% saying they would not vote at all if left with these two choices.

The polling also revealed neither apparent frontrunner favorably. The Times and Siena College poll found 55% of respondents view Trump unfavorably while 54% said the same about Biden. In June, a CNN/SSRS poll found 31% of registered voters did not view Biden or Trump positively.

https://ny1.com/nyc/all-boroughs/news/2023/08/01/poll-shows-biden–trump-in-dead-heat-in-2024

COMMENTARY AND ANALYSIS

Anyone who believes the national polling at this point is foolish. Both men have a strangled hold over their respective parties despite the strong desires of their parties wanting different candidates at the top of the tickets. Given the volatility of the electorate, anything can and will likely happen to change the final outcome.

Court  challenges to remove  candidates  on the ballot is very common in New Mexico. Usually, those challenges relate to qualifying nominating signature petitions and residency requirements.

In the long run, it’s more likely than not efforts to remove Trump from the ballot will be confined to the seven individual swing states to keep Trump off the ballot as opposed to an effort made in all the states.