On May 25, Governor Michelle Lujan Grisham announced that she was reviving the Governor’s Organized Crime Prevention Commission as a move to target organized crime in New Mexico and to help combat human trafficking and illegal fentanyl sales. The bipartisan commission was established in 1973 and produced its last major report in 1978. According to the Governor, reestablishing the commission will send a message to organized crime organizations and produce reports that can help guide crime-fighting strategies.

Under state law, the Governor’s Organized Crime Prevention Commission is made up of 7 members appointed by the governor and confirmed by the state Senate. No more than four members can be of the same political party. The commission has subpoena power and may initiate investigations.  The Commission will also be tasked with making proposed changes to the state’s criminal laws, but those changes will have to be approved by the New Mexico Legislature.  The commission will hold public and private meetings while developing a comprehensive plan to suppress organized criminal organizations.

According to the Governor the commission will pursue strategies for disrupting the operations of international drug cartels and street gangs in New Mexico, which are particularly active in fentanyl distribution, sex trafficking and illegal gun sales.  She also said the Commission will produce recommendations to policymakers and strengthen law enforcement coordination across jurisdictions.

APPOINTED MEMBERS

During the May 25 press conference, the Governor announce the appointment of the 7 member commission.  The Governor said this:

“These seven individuals have among them well over a century of expertise in law enforcement and the judicial system. This commission will serve as a powerful tool to hit organized crime where it hurts the most. … We must do more to interrupt organized crime operations in our state, and these are sophisticated groups that take a sophisticated approach. That’s what I am tasking this group to do.”

“It is indicative of the kind of leadership that is occurring in the state of New Mexico that is completely laser-focused on public safety and holding individuals conducting criminal activity accountable at every level, in every single place in the state, and doing it in such a fashion that lends itself to our federal partners and other states so that we’re collaborating across state lines on activity that we know is impacting individuals public safety right here in our state”

“It is a message to bad actors and organized criminal elements. Who, I want to also point out, are incredibly sophisticated criminal organizations and operations.  Arguably, they are far too often engaged in the next set of high-risk criminal activity. Every day. Every day with one-year, five-year, 10-year and 20-year agendas.  We want to interrupt that right here. We are clear about that sophistication. We are clear about those risks. We will identify patterns and issues. We will do that in our own state and across state lines that we will fully engage our federal partners. It is a benefit to the folks who are working day and night to keep New Mexicans safe.”

The Governor appointed Bernalillo County District Attorney Sam Bregman as Chairman of the Governor’s  Organized Crime Prevention Commission. It was in January that the Governor appointed Bregman District Attorney who immediately announced he would only serve 2 years and not run again for DA.

The other members of the commission announced are:

Sheriff John Allen, Bernalillo County Sheriff’s Department

Secretary Jason Bowie, Department of Public Safety

Sonya K. Chavez, United States Marshal, New Mexico

Chief Eddie Flores, Western New Mexico University Police Department

Marcus Montoya, Eighth Judicial District Attorney

Honorable Judith K. Nakamura, former Chief Justice, New Mexico Supreme Court

Former Bernalillo County Assistant District Attorney Rob Hart has been appointed as Acting Director of the Organized Crime Commission.

Bernalillo County District Attorney Sam Bregman had this to say:

“It’s exactly, I think, what this state needs. … Everyone here today knows that New Mexico, like the rest of the country, has a crime problem. Whether it’s guns, drugs, or human trafficking, they all have one thing in common. Much of it gets its origin means and methods from criminal organizations. It is organized crime.”

“We will focus as a commission on getting a handle on gun violence and the proliferation of gun trafficking in our communities — taking on the cartels, their affiliates and the criminal organizations who are poisoning our people with fentanyl.  … We will work with all law enforcement to assess and evaluate the activities and problems involving organized crime and develop a comprehensive plan to suppress and fight organized crime by the cartels, their affiliates, and other criminal organizations.”

“This commission will work with the attorney general and all of law enforcement to assess and evaluate the activities and problems involving organized crime and develop a comprehensive plan to suppress and fight organized crime by the cartels, their affiliates and other criminal organizations.  … It is a long road to get a handle on crime and public safety issues we face every day but everyone on this commission is committed to executing this crucial first step.”

U.S. Marshal Sonya K. Chavez  had this to say:

“This commission is a cutting-edge opportunity. … We already have a cadre of resources across the state, and we will do our best to coordinate them and bring them together to focus on what is hurting New Mexico.”

Former Chief Justice of the New Mexico Supreme Court Judith K. Nakamura  said this:

“I look at this commission as an extension of the work I did as a judge. …  At the end of the day, the job of a judge is to prevent crime. It was difficult to achieve alone but when we work together, we can lessen the case load and make New Mexico a safer place to live.”

Bernalillo County Sherriff John Allen described the commission as a way to coordinate resources across jurisdictional boundaries and said this:

“We have to show we’re a unified front across law enforcement.”

OTHERS REACT

New Mexico Republican lawmakers said reestablishing a commission isn’t enough on its own to curtail crime. House Minority Leader Ryan Lane, R-Aztec, said in a written statement:

“House Republicans are committed to using the interim to develop practical solutions that address the root causes of crime and the mental health issues plaguing our communities. … We are concerned about creating yet another commission allowing politicians to take political victory laps but not provide real solutions.”

Surprisingly, New Mexico Attorney General Raúl Torrez  was not appointed a member of the commission but  said he will support the commission’s work. Notwithstanding Torrez said this:

“It will take a lot of work and it will, I hope, focus us on some probably difficult questions in every corner of the state and in every aspect of the institutions that will lead. It’s absolutely necessary to get a handle on the crime and public safety challenges that we face day in and day out. … So, while I’m not a member of the commission, we do have a responsibility to work with the commission to receive report’s recommendations. I look forward to the work that this group can put together and any support that we can provide to the attorney general’s office will be there. … A lot of times people in our community look at isolated crimes or criminal events, and they don’t see the connection. … [A] good deal of what we see each and every day in our community is actually driven by organizations.”

The links to a quoted news sources are  here:

https://www.governor.state.nm.us/2023/05/24/governor-reestablishes-organized-crime-commission-to-combat-human-and-gun-trafficking-overdose-deaths/

https://www.kob.com/new-mexico/gov-lujan-grisham-revives-commission-to-fight-organized-crime/

https://www.abqjournal.com/2601372/lujan-grisham-brings-back-commission-to-target-organized-crime-in-new-mexico.html

RATIONAL FOR REINSTATING

The biggest rational for the Governor reinstating the Organized Crime Commission is New Mexico’s spiking crime rates and in particular  to help combat human trafficking and the illegal trade and in particular fentanyl sales.

NEW MEXICO CRIME RATES

In 2020, New Mexico had the nation’s second-highest violent crime rate. In 2021 New Mexico law enforcement reported over 28,000 crimes against persons. That includes crimes such as murder, rape, assault, and kidnapping.  Given New Mexico’s population, the state’s crime rate against persons per population is the second highest in the nation. In 2021 FBI data shows for every 100,000 people in New Mexico, law enforcement reported 2,189 crimes against persons. The only state with a higher rate was Arkansas, which reported 2,276 crimes per 100,000 people.

In 202, New Mexico law enforcement agencies reported nearly 25,500 instances of assault . That’s 1,872 more than the state reported in 2020. New Mexico law enforcement also reported more homicides in 2021 than the year before. 2021 across New Mexico, police reported 193 homicides to the FBI.  That’s 67 more than in 2020.  Not at all surprising is that the majority of the state’s reported homicides were in Albuquerque.

New Mexico is not at the top of the list in all crime categories. While New Mexico law enforcement reported 1,663 instances of sex offenses in 2021, 6 other states had higher rates of sex offenses per population. That includes states like Alaska, Utah, and Montana.

The FBI numbers show New Mexico’s per-population kidnapping and abduction rate was the highest in the nation. New Mexico’s firearm ownership and fatality rate is also among the nation’s highest. In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% higher than the national average according to the think tank Rand Corp.

New Mexico law enforcement reported 822 kidnappings and abductions to the FBI in 2021. That puts New Mexico at the top of the list regarding kidnappings and abductions per 100,000 people. Kansas, Colorado, and Utah also rank high on the list of kidnappings and abductions per population.

New Mexico’s firearm fatality rate is among the nation’s highest. According to the New Mexico Department of Health, there were a total of 562 state residents who died in 2021 due to firearm-related injuries.  This figure is up significantly from the 481 firearm-related deaths in 2020. Of the 562 state residents who died in 2021 due to firearms, 319 cases, were classified as suicides and 243 were classified as homicides. In New Mexico, the rate of 14.9 firearm-related deaths per every 100,000 residents in 2010 nearly doubled over the last decade and there were 23 such deaths for every 100,000 residents in 2020.

ALBUQUERQUE AT FOREFRONT OF CRIME WAVE

Albuquerque is at the forefront of New Mexico’s high violent crime rate.  According to legislative data released, the city had about 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 two years have also been two very violent years for Albuquerque.  The number of homicides in the city have broken all-time records.  In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114.  In 2022, there were 120 homicides, a historical high.

On Thursday, March 16, 2023 the Albuquerque Police Department (APD) released the 2022 crime statistics along with crime statistics for 2022 for a comparison. During his March 16 press conference announcing the City’s 2022 crime statistics, APD Chief Harold Medina embellished that a  3% drop in  overall total of crime and a 4% decrease in Crimes Against Persons and the 2% decrease in Crimes Against Property was positive movement.

The slight 3% decrease in overall crime was over shadowed by the 24% spike in CRIMES AGAINST SOCIETY which are largely made up of drug and gun offenses and a 71% increase in murders over the last 6 years.  Chief Medina presented a vertical bar graph that revealed that over the last 6 years, Albuquerque has had a dramatic 71% spike in homicides.  The number of homicides reported over the last 6 years is as follows:

2017: 70 homicides

2018: 69 homicides

2019: 80 homicides

2020: 78 homicides

2021:  110 homicides

2022:  120 homicides

On March 16, in addition to reporting that there has been a 71% spike in homicides, APD officials reported that over the past 6 years there has been a 28% increase in Aggravated Assaults which by definition includes the use of a firearms. Following are the Aggravated Assaults numbers:

2017: 4,213

2018: 5,156

2019: 5,337

2020: 5,592

2021: 5,669

2022: 5,399

Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021.  These numbers place Albuquerque among America’s most dangerous cities.

All residents are at increased risk of experiencing aggravated robbery, auto theft, and petty theft.  The chances of becoming a victim of property crime in Albuquerque are 1 in 20, an alarmingly high statistic. Simple assault, aggravated assault, auto theft, and larceny are just some of the most common criminal offenses in Albuquerque. Burglary and sex offense rates In Albuquerque are also higher than the national average.

ALBUQUERQUE IS RANKED 17TH AMONG 70 OF THE LARGEST CITIES

On April 26, the Major Cities Chiefs Association released its Violent Crime Survey and national totals for the crimes of homicides, rapes, robberies and aggravated assaults. According to the report, Albuquerque is ranked 17th among 70 of the largest cities in the nation looking at trends in the 4 categories. The single most troubling statistic is Albuquerque’s increase in homicides.

The statistics for Albuquerque reported by the Major Cities Chiefs Association for the last two years were as follows:

Homicide

2022: 120

2021: 110

Rape

2022: 194

2021: 286

Robbery

2022:  962

2021: 747

Aggravated Assault

2022: 2,291

2021: 2,373

The Major Cities Chiefs Association report shows in 2022, there was a 5% drop in homicides nationwide. According to the Major Cities Chiefs Association, Albuquerque had one of the worst homicide rates in the nation and is one of 27 cities across the nation that saw an increase in homicides.

The report shows in 2021, there were 106 homicides. In 2022, there were 115, an 8% increase. Other nearby cities like Phoenix saw a 13% increase in homicides. Meanwhile, to the north, the Denver Police Department reported an 8% decrease in homicides. Just four hours south, the city of El Paso saw a 28% decrease in homicides, one of the highest drops in the report.

Click to access MCCA-Violent-Crime-Report-2022-and-2021-Midyear.pdf

https://www.koat.com/article/albuquerque-homicide-rate-increase/43702586

THE BIGGER PICTURE

On Thursday, March 16, 2023 the Albuquerque Police Department (APD) released the 2022 crime statistics along with crime statistics for 2021 for a comparison.  APD Chief Harold Medina reported Albuquerque crime statistics as follows:

CRIMES AGAINST PERSONS

EDITORS NOTE: Crimes Against Persons include murder, rape, and assault, and are those in which the victims are always individuals.

2021:  13,242

2022:  12,777 (4% DECREASE)

CRIMES AGAINST PROPERTY

EDITOR’S NOTE: Crimes Against Property include robbery, bribery, and burglary, or to obtain money, property, or some other benefit.

2021:  44,822

2022: 43,824 (2% DECREASE)

CRIMES AGAINST SOCIETY

EDITOR’S NOTE: Crimes Against Society include gambling, prostitution, and drug violations, and represent society’s prohibition against engaging in certain types of activity and are typically victimless crimes.

2021: 3,903

2022: 5,133 (24% INCREASE)

COMMENTARY AND ANALYSIS

The Governors Organize Crime Prevention Commission is what is called by politicos as “Government by Committee”. It looks good, sounds good and designed for the publicity but accomplishes very little other than a sound bite.  A good example occurred in 1973,  when the newly created Governors Organize Crime Prevention Commission did a survey of possible areas of organized crime activity in New Mexico and of existing and needed law enforcement resources to combat it.  The report found “a growing threat of encroachment by organized crime in New Mexico, and urges that steps be taken now to reduce it.”  The commission listed immediate goals for 1974. “Those goals were to combat crime in the areas of drugs trafficking, fencing, pornography, prostitution, gambling, infiltration of business, labor racketeering, arson, vending machines, credit card frauds, liquor licenses, loansharking, private investigators and corruption.”

https://www.ojp.gov/ncjrs/virtual-library/abstracts/new-mexico-governors-organized-crime-prevention-commission-first

“SITTING  AROUND ACTING  LIKE THEY ARE SELLING CATTLE”

There is a major reason why the Governor’s Organize Crime Prevention Commission faded essentially out of existence within 10 years. It was viewed by subsequent Governor’s as ineffective and a major waste of resources. It had the reputation amongst law enforcement as having no need for it but filled with the Governor’s politcal appointees and it was created for “politcal show and tell”. Simply put,  law enforcement and prosecutors should not need to be told how to do their jobs, what their  priorities are nor what resources they need nor what policy changes are required to get the job done to protect the public.

There is a well known New Mexico saying “Sitting around acting like they are selling cattle”.  It’s a description of how very little ranchers have to do other than sitting in the bleachers and  talk to themselves as they wait for their cattle to be auctioned.

It is very difficult to understand why Bernalillo County District Attorney Sam Bregman and Bernalillo County Sherriff John Allen would even agree to serve on such  commission, other than for the publicity it will bring them.  Bregman and Allen will now be able to “sit around and act like they are selling cattle”  donning their cowboy hats talking to themselves while pretending to listen to the other commission members.

Bregman and Allen have now been on the job for a 5 mere months. You would think they both already have a enough to do just getting their own offices up and running. The blunt truth is that if Bregman and Allen would just concentrate on doing their existing jobs of investigating, arresting and prosecuting cases, especially violent crime and narcotics cases, they will likely do more on their own to address New Mexico’s and Albuquerque’s high crime rates than attending meetings, wasting their time and talking to themselves.

CALL SPECIAL SESSION AND ENACT “OMNIBUS GUN VIOLENCE AND SENTENCING  ACT

Violent crime, the fentanyl crisis and drug cartels in New Mexico are very real, but reinstating the Governor’s Organize Crime Commission is in no way the answer. The Governor can do much better than resurrecting a defunct and ineffective  crime commission that will be been soon forgotten and fade just as quickly as the last one with very little accomplished. There are in fact “dramatic circumstances” that exist right now that justify a special session.  Governor Michelle Lujan  should call a special session to deal with crime and punishment.

If Governor Lujan Grisham is indeed sincere about the State’s crime crisis she should seek the enactment of an “Omnibus Gun Violence And Sentencing  Act” that could be enacted  by a special session. There must be a zero tolerance of crimes committed with firearms involving drug trafficking such as fentanyl.

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

• Allow firearm offenses used in a drug crime 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.
• 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.

The “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.

Until the Governor and the legislature gets serious about crime, punishment and dedicating law enforcement resources and personnel  to prevention, all they are going to be doing is “sitting around acting like they are selling cattle.”

 

Criminal Defendant Joe Anderson, 41, was sentenced and served  seven years in prison for  the 2010 fatal shooting of Vincente Sanchez. On December 4, 2022, Anderson was charged with the first-degree murder of Raymond Aviles, who was fatally shot in August, 2022 while he was riding a motorcycle near Eastern and Amherst SE.

According to a criminal complaint filed against Anderson, a confidential source said the motive of the killing was Anderson loaned Aviles a motorcycle and Aviles did not return it as promised to Anderson.  APD obtained nearby surveillance footage showing Aviles pulling into an apartment complex on a motorcycle before attempting to flee from a white SUV. The video then shows the SUV’s driver and a passenger get out and chase Aviles, who drives out of the camera’s view. Aviles died in the middle of Eastern Avenue.  Anderson was identified as one who had chased Aviles.

In January after his arrest an evidentiary hearing on conditions of release, Second Judicial District Court Judge Emeterio Rudolfo denied a prosecutor’s motion to keep Anderson behind bars while awaiting trial.  In his January 13 order, Judge Emeterio Rudolfo ruled that although Anderson presented a danger to the community, the danger could be mitigated with conditions of release, which included fitting Anderson with a GPS ankle monitor.

District Judge Rudolpho ruled that Defendant Anderson’s compliance with conditions of release in other pending cases undermined the District Attorney’s argument that no conditions of release could protect the public.  District Court officials were alerted on February 7 that Anderson’s ankle monitor was cut off and the ankle bracelet was found a day later  on the side of a highway.  APD Police arrested Anderson on February 26.

On February 6, the New Mexico Supreme Court overturned District Court Judge Emeterio Rudolfo decision to release Anderson pending trial and held that the district court abused its discretion in denying the prosecution’s detention request. A warrant was issued for Anderson’s arrest the following day. Anderson is in jail awaiting trial. The New Mexico Supreme Court found that the finding that a defendant is dangerous must be a factor in deciding whether conditions of release can be fashioned that will protect the public.

The link to the quoted news source is here:

https://www.abqjournal.com/2601013/release-of-a-homicide-suspect-prompts-new-supreme-court-guidance.html

NEW MEXICO SUPREME COURT ISSUES GUIDANCE ON PRETRIAL DETENTIONS

On May 22, and in part because of the Anderson reversal, the New Mexico Supreme Court issued a unanimous opinion providing guidance to district courts in deciding pretrial detention requests from prosecutors. The justices clarified the analysis that courts should follow in determining whether legal requirements have been met for a person charged with a felony to be held in jail while awaiting trial.

Under state law, a felony defendant may be detained if prosecutors file a written motion and prove to a district court that the charged person is dangerous and that “no release conditions will reasonably protect the safety of any other person or the community.”  The New Mexico  Supreme Court’s opinion provides the legal reasoning for the  order issued by the justices in February that reversed District Court Judge Emeterio Rudolfo decision denying  of a Motion for Pretrial Detention of Defendant Joe Anderson. The justices held that the district court abused its discretion in denying the prosecution’s detention request and that the District Court followed the wrong analytical framework in making its determination.

Justice Briana H. Zamora wrote on behalf of the Supreme Court as follows:

“In this case, ample evidence showed that the Defendant [Anderson] was unlikely to comply with release conditions and that the public would be put at significant risk should he fail to comply with release conditions.  …

District courts must undertake a two-prong analysis in pretrial detention decision-making: The first is determining whether the defendant is dangerous, and the second prong is whether the state has proven there are no conditions or restrictions that can be imposed on a defendant – if released – to reasonably protect the public.

In analyzing both prongs, district courts must consider a range of factors outlined in a rule of criminal procedure governing pretrial detention (Rule 5-409). Those factors include the “nature and circumstances” of the charged crime, the defendant’s history, and the “nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. … All factors are relevant to both prongs because a defendant’s dangerousness is not an entirely separate consideration from whether release conditions can reasonably protect the safety of the public; rather, the nature of the defendant’s dangerousness informs whether the public can be kept reasonably safe from that danger by the imposition of release conditions.

Thus, if a district court applies the Rule 5-409 factors and determines that a defendant is dangerous, it should not cordon off those facts that it considered in the dangerousness analysis and limit itself solely to the evidence that it did not yet consider in order to rule on release conditions.  District courts should take a “holistic, commonsense approach” in the analysis about possible release conditions.”

This second prong of the pretrial detention analysis, like the first prong of dangerousness, must be proven by clear and convincing evidence. However, the State must only prove that no release conditions can reasonably protect the public, not that no release conditions can possibly protect the public. … As part of its analysis, the district court must consider not only whether a defendant is likely to comply with release conditions but also the likely consequences to any person or the community should a defendant fail to comply”

That additional inquiry is related to, and must be viewed in light of, the magnitude of a defendant’s dangerousness. … For example, a defendant with a history of violent crimes who stands accused of a new violent crime may pose a significant and unjustifiable risk to the safety of any person or the community if the defendant fails to comply with release conditions.”

The Supreme Court made clear and emphasized that District Courts cannot “rely solely on the charged offense to order a defendant’s detention.” A district court “must always conduct a totality of the circumstances analysis in reaching a decision” on a motion for the pretrial detention of a felony defendant.

The link to the quoted Administrative Office of the Courts press release is here:

Click to access New%20Mexico%20Supreme%20Court%20opinion%20provides%20guidance%20about%20pretrial%20detention.pdf

NOT THE FIRST TIME SUPREME COURT REVERESES LOWER COURT ON PRE TRIAL-DETENTION

The Anderson ruling is the second time within a year that the New Mexico Supreme Court felt it necessary to reverse a District Court’s ruling to release a defendant charged with a violent felony on GPS monitoring pending trial. On May 5, 2022, the New Mexico Supreme Court overturned the pretrial release of an Albuquerque teen murder suspect. Adrian Avila was  accused of the February 2021 murder of Elias Otero. He was one and of four people allegedly involved in the August 2020 shooting death of Donnie Brandon. Avila was granted pretrial release on GPS monitoring and a strict curfew by Judge Stanley Whitaker.

Judge Stan Whitaker ruled that, while prosecutors had credible evidence to charge Avila for two murders, they did not prove how keeping Avila in jail would protect the community.

After the ruling, then Bernalillo County District Attorney Raúl Torrez’s office filed for an appeal. The appeal led to the state Supreme Court’s decision. The Supreme Court’s appeal states in part:

“Conditions of release cannot reasonably protect the safety of the community. It was an abuse of discretion for the district court to find otherwise. … The district court’s decision to release defendant placed the public at unnecessary risk.”

Following the Supreme Court’s decision, Avila was return to jail to await trial.

The link to quoted news source is here:

https://www.kob.com/archive/new-mexico-supreme-court-overturns-pretrial-release-of-teen-murder-suspect/

PRETRIAL DETENTION AND THE PUBLIC SAFETY ASSESSMENT TOOL

The New Mexico Supreme Court ruling in the Joe Anderson case is the most recent ruling made amidst intense debate over pretrial detention and what is known as the Public Safety Assessment Tool.  When a criminal defendant is arrested and in jail, a prosecutor must file a Motion to Detain the defendant in custody until trial with no bail. After a prosecutor files a Motion to Detain, the Public Safety Assessment Tool assigns a recommended level of monitoring for the court to consider under pretrial services should the court decide to release a defendant pending trial, including house arrest and ankle bracelet monitoring.  An evidentiary hearing is held where the prosecutor has the burden of proof to show that the defendant poses an immediate threat and risk to the public and that there are no reasonable conditions of release to protect the public.

Last year the District Court’s reliance the Public Safety Assessment Tool came under severe scrutiny and criticism by prosecutors, law enforcement and elected officials, including Governor Mitchell Lujan Grisham and New Mexico legislators, saying violent criminals were being release pending trial and committing crimes when they should have been in jail. The Public Safety Assessment Tool was attacked by critics when it recommended releasing a defendant charged with a violent crime with critics arguing that its recommendation of release was mandatory and not discretionary by the courts.

Pretrial detention legislation was introduced in the 2023 legislative session that would have mandated that a defendant simply charged with a violent crime be presumed violent and jailed until trial. The legislation failed and did not make it out of a single legislature committee. Critics argued successfully that the presumption of being violent mandating detention until trial is contrary to the constitutional right of due process of law and the presumption of being innocent until proven guilty.

On April 20, the Second Judicial District Court removed from the Public Safety Assessment Tool the categories of “Detention” and “Released on Own Recognizance” (ROR) which are on the opposite end of the Public Assessment Tool.  Second Judicial Chief Judge Marie Ward said inclusion of the two categories at the far ends of the Public Safety Assessment tool is not viewed as “best practices” but were added as a compromise at the request of one of the stakeholders on the  Bernalillo County Criminal Justice Coordinating Council.

District Judge Ward said, just like before the changes were made, a judge must consider evidence presented by the prosecutors and the defense attorneys to determine whether someone poses and immediate danger to the public and whether there are any conditions of release that could ensure the safety of the community. If a judge determines the person can be released, then the Public Safety Assessment gives them guidance on what level of supervision the defendant should be on.

Judge Ward described the changes as follows:

“What the [Public Assessment Tool] really tells us is, not this defendant, but a defendant in similarly situated circumstances … how likely were they to re-offend. … More evidence and argument can come in regarding this individual and other risk factors. … These modifications are only intended to clarify the misconceptions that have been out there that the assessment somehow dictates whether someone is released or not. … That’s not the case. It’s always the judge making a decision, and its always been that way.”

ANALYSIS AND COMMENTARY

A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond and simply not using their common sense.  It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission.

Repeatedly, and especially during election years, it is very common for elected officials and candidates for office to proclaim that our criminal justice is broken and that the courts have become a revolving door for violent criminals. It’s a ploy that undercuts the very integrity of the courts, with nefarious politicians knowing full well individual judges are strictly prohibited from discussing in public pending cases under penalty of being removed from office.  The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst.

There is little doubt that the New Mexico Supreme Court with its ruling in the Anderson case and subsequent guidance to the District Courts has become increasingly sensitive to the perceptions and demands of the general public that violent criminals, especially those charge with murder, need to be held in custody pending trial. What is also clear is that the Supreme Court wants the lower courts use their common sense and use a holistic and analytical approach to make their decisions to protect the general public from the most violent offenders. Now the public must wait and see how much common sense the courts in fact have.

 

On November 14, 2014, the City of Albuquerque, the Albuquerque Police Department and the United State Department of Justice (DOJ) entered into a stipulated Court Approved Settlement Agreement (CASA). The settlement was the result of an 18-month long investigation by the Department of Justice (DOJ) that found that the Albuquerque Police Department engaged in an pattern of “excessive use of force” and “deadly force”, especially when dealing with the mentally ill. The DOJ investigation also found a “culture of aggression” existed within the APD,

The Court Approved Settlement Agreement mandates 271 police reforms, the appointment of a Federal Monitor and the filing of Independent Monitor’s reports (IMRs). There are 276 paragraphs in 10 sections within the CASA with measurable requirements that the monitor reports on.

The link to the 118-page CASA is here:

https://documents.cabq.gov/justice-department/settlement-agreement.pdf

17^th FEDERAL MONITORS COMPLIANCE REPORT FILED

On May 10, 2023  Federal Court Appointed Independent Monitor James Ginger filed his 17th Report on the Compliance Levels of the Albuquerque Police Department (APD) and the City of Albuquerque with Requirements of the Court-Approved Settlement Agreement. The 17th Federal Monitors report is a 194 page report that covers the reporting period of August 1, 2022, through January 31, 2023.

Click to access imr-17-w-appendix-a-and-b.pdf

This blog article reports on the general findings of the 17th Federal Monitors Report. The article is not to be considered exhaustive and does not go over the specific terms of the CASA where the Monitor found APD not in Operational Compliance.  The postscript to this blog article lists the 21 provisions of the CASA  with page number where the Federal Monitor found APD not in Operational Compliance, but did find it in Primary and Secondary Compliance. Six of the 21 provisions where the Federal Monitor found that Operational Compliance was not achieved  involve the Citizens Police Oversight Agency (CPOA) reporting that the agency is failing with respect to training and resources, including personnel, to achieve its mandates under the CASA. It is the City Council that has failed to provide sufficient resources and make necessary changes to the ordinance that created the agency.

The 17th Independent Monitor’s Report covers the time period of August 1, 2022  through January 31, 2023. It found APD was only 3 percentage  points from full compliance with the Court Approved Settlement Agreement (CASA).  Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Originally, APD was to have come into compliance within 4 years and the case was to be dismissed in 2018.

The 3 compliance levels are explained as follows:

PRIMARY COMPLIANCE

Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

SECONDARY COMPLIANCE

Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

OPERATIONAL COMPLIANCE

Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

PROGRESS MADE IN COMPLIANNCE LEVELS

Operational Compliance is considered the most difficult to implement and achieve. The 15^th and 16th reports released in 2022 saw significant gains in Operational Compliance but the 17th has brought APD  the closest it has ever been to full compliance with 92% reported and with 95% needed to be achieved and sustained for 2 years in all 3 compliance levels. Review of the past 4  reports and the compliance levels are worth noting and  are as follows:

17^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The Federal Monitor IMR-17 report which covers August 1, 2022, through January 31, 2023,  reported APD’s compliance levels were as follows:

Primary Compliance 100%

Secondary Compliance 100%

Operational Compliance 92% (95% needed to be achieved and sustained for 2 years)

 

Click to access imr-17-w-appendix-a-and-b.pdf

16^th  FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The Federal Monitor IMR-16 report which covers which covers February 1, 2022, through July 31, 2022, reported APD’s compliance levels were as follows:

Primary Compliance: 100% (No change)
Secondary Compliance: 99% (No change)
Operational Compliance: 80%. (10% increase from 70%)

 The link to review IMR-16 is here:

 https://www.cabq.gov/police/documents/959-221109-imr-16.pdf

15^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

On May 11, 2022, Federal Court Appointed Independent Monitor filed his 15th Report on the Compliance Levels.  The 15th Federal Monitors report covers the 6 month time frame of August 1, 2021 to January 31, 2022.  APD’s compliance levels in  the IMR-15 Federal Monitor’s report were as follows:

Primary Compliance: 100%
Secondary Compliance: 99%
Operational Compliance: 70%.

 The link to review IMR-15 is here:

https://www.cabq.gov/police/documents/910-220511-imr-15.pdf

14^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The 14th Federal Monitors report covers the 6 month time frame of  February 1,  2021 through  July 31, 2021. At  the end of the IMR-14 reporting period, APD’s compliance levels were as follows:

Primary Compliance:  100 %;

Secondary Compliance: 82 %

Operational Compliance:  62 %

Note that from February 1, 2021, the beginning of the IMR-14 reporting period,  to January  31, 2023, the end of IMR-17, APD has sustained a 95% compliance rate or better in Primary Compliance for a total of 24 months or two full years.

Note that from August 1, 2021, the beginning of the IMR-15 reporting period,  to January  31, 2023, the end of IMR-17, APD has sustained a 95% compliance rate or better in Secondary Compliance for a total of 17 months.

17^th FEDERAL MONITOR’S REPORT HIGHLIGHTS

According to the 17^th Federal Monitor’s Report, APD has now reached 100% Primary Compliance which involves operational policies and procedures, 100% Secondary Compliance which involves implementing supervisory, managerial and executive practices and 92% Operational Compliance which involves officers following policies and being corrected when they don’t. Operational Compliance improved by 12%, going from 80% to 92% since the 16^th report.

According to the 17^th Federal Monitors Report, APD officers are also using force less than they were three years ago, with 284 incidents reported compared with 484 in 2020. There were 47 of the highest “Level  3” uses of force in 2022, a year when APD police shot a record high  18 people, killing 10 of them. Level 3 is force that results in, or could reasonably result in, serious physical injury, hospitalization, or death.

During this reporting period, APD opened 52 Level 1 use of force cases for supervisory review. In contrast, APD opened 83 Level 1 use of force cases for supervisory review during IMR-16, 79 Level 1 use of force cases for supervisory review during IMR-15, 116 during IMR-14, 111 new cases during IMR-13, and 173 supervisory use of force reviews during IMR-12.

BACKLOG OF USE OF FORCE CASES

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

It was on November 12, 2021 that Federal Court Appointed Monitor James Ginger filed with the Federal Court his 14th Independent Monitors Report. The report is the most critical and scathing as to the city’s intentional noncompliance and failure to investigate hundreds of police use of force cases. The report covers the time frame of February 1, 2021 to July 31, 2021. The link to review the entire 331-page report is here:

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-fourteenth-report-nov-2021.pdf

According to the IMR-14 report, the most important issues affecting APD during the reporting period involve misconduct investigations, use of force investigations, the lack of progressive discipline when misconduct is found, and supervision and leadership. The report found a backlog of 667 uninvestigated use of force cases.  Approximately 83% of the cases were time-barred for discipline in accordance with the police union contract should misconduct be found. Since its discovery, and according to the 14^th IME report, backlog was reduced from 667 cases to 660 cases as of October 25, 2021.

On February 6, 2021  a hearing was held on the 14th Independent Monitor’s Report where a plan was unveiled to tackle the 660-case backlog of uninvestigated level 2 and 3 use of force cases. Level 2 use of force is when an officer has to use force and the person is not injured. Level 3 includes anything that sends someone to the hospital or death, like officer-involved shootings. It was revealed that the External Force Investigation Team would assume responsibility for reviewing the backlog of cases.

It was during the 16^th  Independent Monitoring Teams reporting period that  a the Stipulated Order was approved by the Court in 2021 and amended to authorize a secondary Eternal Force Investigation Team (EFIT)  to address the backlogged Level 2 and Level 3 cases. The EFIT-2 the team was designated to handle these cases.  The EFIT-2  became operationalized during the latter part of the 16th monitoring period. At the close of that monitoring period, approximately 2%  of the backlogged cases had been closed.

Two weeks after the close of IMR-17, EFIT prepared its sixth Quarterly Report to the Court and the report reflected approximately 15% of the backlogged cases had been completed or 100 cases resolved with 557 still pending completion. (667 X 15% = 100,  667-100 =557).  See page 45 of 17^th Federal Monitors Report.

See Page 9 of IMR 1.

TRAINING OF INTERNAL AFFAIRS FORCE DIVISION

It was in July 2021 that the External Force Investigation Team (EFIT)   began training the Internal Affairs Force Division on how to investigate use-of-force cases, making sure they meet deadlines and follow procedures.  Ginger wrote in his 17^th report  that the EFIT project has been “very successful” with the new Internal Affairs Force Division commander also making “a noticeable impact” in the quality and timeliness of investigations.

Independent Monitor Ginger reported in his 17^th report that the Internal Affairs Force Division went from following EFIT’s investigation standards from 76% of the time in 2022 to 96% of the time by January 2023.  During the time period,  3 Internal Affairs Force Division detectives have been released to investigate use-of-force cases without EFIT’s oversight and 11 others are in the transition phase.

Ginger cautioned that APD needs to ensure quality investigations continue once EFIT passes oversight responsibilities wholly back to the Internal Affairs Force Division thereby testing its abilities to sustain the progress made. Ginger reported:

“It is time for the highest level executives at APD to become hyper-focused in its CASA compliance efforts and not allow any degree of complacency to seep in. … [Leadership need to] appreciate the current standards that are in place, reflect on the past and consider the technical assistance they have received from the monitoring team over the years. … The lessons learned will help inform future decisions that help sustain and build upon the progress of reform.”

The link to the quoted news source is here:

https://www.abqjournal.com/2599689/apd-near-full-compliance-with-mandated-reforms.html

In the 17^th Independent Federal Monitors report, the Monitor also  emphasized the challenge facing APD with the External Force Investigation Team:

“EFIT will eventually pass oversight responsibilities back to APD, which will test its ability to sustain the obvious progress made with day-today external oversight. With the progress APD has made over the past two years, now is the time for the highest-level executives at APD to become hyper-focused in its CASA compliance efforts and not allow any degree of complacency to seep into its daily business practices. As APD progresses through 2023, we encourage all supervisors and commanders to appreciate the current standards that are in place, reflect on the past, and consider the technical assistance they have received from the monitoring team over the years. The lessons learned will help inform future decisions that help sustain and build upon the progress of reform.”

See Page 9 of IMR 17.

17^th FEDERAL MONITOR’S EXECUTIVE SUMMARY HIGHTLIGHTS

Findings contained in the Executive Summary of the Independent Monitors 17^th report that are worth noting and edited are as follows:

 “APD has made substantial progress this reporting period. … [S]everal of the more difficult compliance processes have moved into operational compliance this reporting period. These include … the timely completion of Level 1 use of force investigations within the 90-day timeline required by the CASA.

 APD’s training processes continue to be professionally planned, documented, and delivered. … [A]ll training requirements articulated in the CASA are now in compliance.

Force investigations continue to be professionally and timely completed and are well-documented. The Internal Affairs Force Division  and  the External Force Investigation Team  continue to generate industry-standard force investigations. …  

[T]he rate of uses of force has remained relatively stable over the last three reporting periods, with these levels significantly lower than three years ago.

All … area command investigations were consistently completed in accordance with CASA requirements.

…

Leadership at APD is currently engaged in the process of planning the transition of force investigations back to Internal Affairs Force Division in order to field internal processes that are CASA congruent. This will allow APD to demonstrate its willingness and ability to field industry-standard force-investigation processes without external assistance—an important capability to come into compliance with the force-investigation requirements of the CASA.

There remains work to be done, however. For example, some supervisors occasionally continue to misclassify uses of force, such as Level 1 use of force misclassified as Low-Level Control Tactics or Level 2 use of force misclassified as Level 1, thus yielding cursory reviews or no reviews of critical incidents.

[There has been]  a degradation in the quality of case reviews and assessments by some members of the Force Review Board FRB during this reporting period.  …  APD has already moved to address these issues.

… .

APD’s Operational Compliance is at 92%  this reporting period. APD is approaching the 95% Operational Compliance levels required for full compliance with the CASA. APD was in 80% Operational Compliance for IMR-16. It is at 92 percent Operational Compliance for IMR-17. In the monitor’s opinion, we consider this change to be significant. We reiterate our long-standing advice to APD: the key to compliance is leadership and supervision. Those two processes will be the key to CASA compliance moving forward.”

17^th FEDERAL MONITOR’S REPORT SUMMARY

At the end of the 17^th Federal Monitor’s report, Federal Monitor Ginger offered the following conclusions:

“APD has reached a significant milestone during the IMR-17 reporting period: Primary and Secondary Compliance findings are at 100%. This represents an exceptionally strong foundation for future efforts to achieve full operational compliance. Good policy is in place. Strong training processes are in place. Operational Compliance is at a new high, 92%.

The final obstacle to Operational Compliance continues to be in-field practices. As we have noted in the past, achievement of Operational Compliance is almost completely reliant on supervisors (sergeants) and mid-command (lieutenants and commanders).

Reviews of compliance for IMR-17 continue to identify several needs for APD leadership, mid management, and supervisory focus. These include:

• Ensuring appropriate classifications of uses of force at all levels;
• Applying progressive discipline;
• Build “backlog-proof” force investigation practices by monitoring timelines for force investigations and ensuring APD proactively identifies cases in danger of falling out of established timelines;
• Continuing the processes to train, staff, and organize internal systems so that APD can replace the functions of EFIT with equally competent internal oversight systems for use of force and other CASA-congruent field operations.

 [The monitors team]  continue to recommend that the City consider a staffing study to identify current needs at the Citizens Police Oversight Board (CPOB), especially the investigative team, to determine if CPOB is adequately staffed and supervised to ensure timely completion of high-quality case investigations. As we have noted, we are concerned about CPOA staffing and oversight systems that may well be harbingers of potential difficulties at the agency.

During the 17th reporting period, [the monitors team] noted substantial movement toward effective command and supervisory control process that generate CASA-compliant practices in the field.

Operational Compliance increased substantially this reporting period, from 80% to 92%. This is the fourth monitor’s report in a row that has shown significant improvements in Operational Compliance.

While most of the monitor’s comments in this report are data-based, as always, we would be remiss if we did not recognize a new attitude at APD when it comes to CASA compliance. We note, again this reporting period, a keen focus on compliance at executive, command, and in-field operations levels.

 APD systems are continuing to be diligently focused on the CASA and compliance practices in the field.

 What [the monitors team] have seen at APD in the 17th monitoring period indicates an agency that is committed to full compliance with the CASA. This is part of a two-year trend established in IMR-14, with substantial increases in compliance levels in the last three reporting periods.”

CITY SEEKS REDUCTION IN BILLING

On April 14, KOAT TV, Target 7 reported the city continues to pay the court appointed Federal Independent Monitor James Ginger and his team of 14 experts the same salary it has paid since 2019, four years after the court-mandated reforms with the DOJ were established. Albuquerque originally was paying Ginger $120,000 a month for his services as an independent monitor. Since 2019, Ginger is being paid another $13,000 more or a total of $133,000 a month or $1,596,000 a year to continue with the monitoring.

The link to the Channel 7 report is here:

https://www.koat.com/article/albuquerque-police-doj-settlement-agreement-update/43594805

On April 17, the City sent Ginger a letter suggesting that the Independent Monitoring team agree to a 40% pay cut effective June 1 to go from $133,000 a month to $80,000. Ginger and his team of 14 experts have been paid well over $10 Million since 2015. The Federal Monitor’s workload has been reduced with APD now self monitoring 25% of the settlement terms. The monitor’s report have also dramatically changed in scope, going from 330 pages (15^th IME report)  to 194 pages (17^th IME report.)

https://www.abqjournal.com/2593736/city-seeks-40-pay-cut-for-albuquerque-police-monitoring-team-james-ginger.html

TERMINATION AND SUSPENSION PROVSIONS OF THE CASA

The Court Approved Settlement Agreement (CASA)  allows  for suspension and termination of the settlement agreement. Those provisions are as follows:

“Termination of the Agreement

342. The City will endeavor to reach full and effective compliance with this Agreement within four years of its Effective Date. The Parties agree to jointly ask the Court to terminate this Agreement after this date, provided that the City has been in full and effective compliance with this Agreement for two years. “Full and Effective Compliance” shall be defined to require sustained compliance with all material requirements of this Agreement or sustained and continuing improvement in constitutional policing, as demonstrated pursuant to the Agreement’s outcome measures.

 

343. If after six years from the Effective Date the Parties disagree whether the City has been in full and effective compliance for two years, either Party may seek to terminate this Agreement. In the case of termination sought by the City, prior to filing a motion to terminate, the City agrees to notify DOJ in writing when the City has determined that it is in full and effective compliance with this Agreement and that such compliance has been maintained for no less than two years.”

 

The CASA does have a provision that allows suspension of the monitoring. Specifically,  paragraph 302 of the CASA provides:

 

 “302. Where the Parties agree, the Monitor shall refrain from conducting a compliance review of a requirement previously found by the Monitor to be in sustained compliance for at least two years pursuant to audits or reviews, or where outcome assessments or other information indicate that the outcome intended by the requirement has been achieved.”

The link to the 118-page CASA is here:

https://documents.cabq.gov/justice-department/settlement-agreement.pdf

 REFORMS ACHIEVED UNDER THE CASA

On November 16 , 2023, it will be a full 9 years that has expired since the city entered into the CASA with the DOJ. It was originally agreed that implementation of all the settlement terms would be completed within 4 years, but because of previous delay and obstruction tactics found by the Federal Monitor by APD management and the police officers union as well as APD backsliding in implementing the reforms, 5 years has been added on. Now after almost 9 full years, the federal oversight and the CASA have produced results. Reforms achieved under the CASA can be identified and are as follows:

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

 COMMENTARY AND ANALYSIS

One of the biggest complaints of all the 18 DOJ consent decrees that exist in the country to deal with police misconduct and excessive use of force cases is that they  go “on and on and on” for years with no end on sight. When the CASA was first agreed to in 2014, it was agreed that all the reforms under the CASA would be fully implemented within 4 years or by 2018. Instead, the case has been going on for 9 years after a period of time when the Federal Monitor found that APD repeatedly did a “backslide” in implementing the reforms and coming into compliance.

It was in November 12, 2020 that the 12th Compliance Report was filed and when Federal Court Appointed Monitor James Ginger declared that APD was on “on the brink of catastrophic failure” in implementing the reforms. The 12th Audit Report was for the period that ended on July 31, 2020.  The Federal Monitor found the following compliance levels:

PRIMARY COMPLIANCE: 100% with no change from 11th report.

SECONDARY COMPLIANCE: 91%, with a loss of -2.2% from the 11th report.

OPERATIONAL COMPLIANCE: 64%, with a loss of -3.0%.

It took APD  a full 2 years and 6 months from July 31, 2020, the end of the 12^th reporting period, to January 31, 2023, the end of the 17^th reporting period for APD to turn things around and it was not at all  easy.  Along the way APD and the city were forced to agree to a court order after the Federal Monitor found that APD intentionally did not investigate 667 of use of force cases and was forced to agree to the creation of the External Force Investigation Team EFIT.  On February 26, 2021, the City of Albuquerque and the United States Department of Justice (DOJ) entered into a Stipulated Agreement filed with the United States District Court to stay a contempt of court proceeding against the city for willful violations of the Court Approved Settlement Agreement (CASA).

APD HAS FULFILLED THE SPIRIT AND INTENT OF THE SETTLEMENT 

Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed.  APD was to have come into full compliance in the 3 compliance levels within 4 years or by 2018.

Operational Compliance is the single most important compliance level of all 3 and it is where the “rubber hits the road” with respect to the reforms.  Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency. It is achieved when line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies. Operational Compliance still has to be achieved at a 95% level, with the other two compliance levels already at 100% and they must also be sustained for 2 years before the case can be dismissed.

After 9 years of implementing the mandating DOJ reforms, and millions spent on training, APD is finally on the verge of implementing the 271 mandated reforms under the CASA.  APD is commended for attaining a 100% Primary Compliance rate, a 100% Secondary Compliance rate and achieving a 92% Operational Compliance rate.   The 2 consecutive years for compliance in all 3 compliance levels should be waived or reduced dramatically given the fact that a 95% compliance rate or better has been achieved in Primary Compliance for a total of 24 months or two full years and a 95% compliance rate or better in Secondary Compliance for a total of 17 months.

APD has fulfilled the spirit and intent of the settlement.  The city can argue “full and effective compliance” with all material requirements of the CASA and with its continuing improvement in constitutional policing as demonstrated by the agreement’s outcome measures reported in the 17^th Federal Monitor’s Report. The two years of 95% compliance should be deemed as accomplished give the fact that the settlement has now gone on for over 5 years than what was originally agreed to.

CITY NEEDS TO MOVE TO DISMISS CASE

On July 27, 2022, the Albuquerque Police Department and the U.S. Department of Justice announce they had agreed to suspend several paragraphs of the Court Approved Settlement Agreement (CASA.) According to APD, the agreement “essentially removes about a quarter of oversight requirements.” The city reached an agreement with the DOJ to suspend the monitoring of upwards of 25% of the paragraphs in the CASA. Those paragraphs have all been in operational compliance for more than 5 years.  Under the stipulated agreement between the City and the DOJ, the city is now self-monitor 62 paragraphs of the CASA.

Given the extent of the compliance levels, the work of the Federal Monitor can be declared a success and he should be winding down his work seeking to close out the case within the next 6 months and prepare his very last Independent Monitor’s report by the end of the year. With that in mind, the federal monitors contract should be renegotiated to include a reduction in pay and termination of the monitoring services.

The city should seek to negotiate a stipulated dismissal of the case with the Department of Justice (DOJ) by the end of the year. Should the DOJ refuse, the City Attorney should move to immediately to dismiss the case under the termination and suspension provisions of the CASA by filing a Motion to Dismiss the case and force the issue with an evidentiary hearing and let the assigned federal judge decide it.

_____________________

POSTSCRIPT

The following provisions of the CASA were reported in the 17^th Federal Monitors report as being in “Primary Compliance”  and “Secondary Compliance” but  not  in “Operational Compliance:

Assessing Compliance with Paragraph 47: Quality of Supervisory Force Investigations, page 32

Assessing Compliance with Paragraph 54: Command Review of Force, Page 37

Assessing Compliance with Paragraph 69: IAFD Responsibilities in Serious Uses of Force, pages 52-54

Assessing Compliance with Paragraph 71: FIS Investigative Timelines, pages 55,56

Compliance with Paragraph 73: FIS Findings Not Supported by Preponderance of the Evidence, page 57

Assessing Compliance with Paragraph 78: Force Review Board Responsibilities, pages 59 to 69

Assessing Compliance with Paragraph 79: Annual Use of Force Reporting, pages 69 to 71

Compliance with Paragraph 183: Investigations Reach Reliable Conclusions, page 109

Assessing Compliance with Paragraph 190: Considering All Relevant Evidence, page 112

Assessing Compliance with Paragraph 191: 90 Days to Complete Administrative Investigations, page 113, 114

Assessing Compliance with Paragraphs 198–200: Staffing and Training Requirements, pages 117 to 121

Assessing Compliance with Paragraph 201: Fact Based Discipline. Page 129 and 130

Assessing Compliance Paragraph 215 Paragraph 215 stipulates: “The Early Intervention System shall be a component of an integrated employee management system and shall include a computerized relational database, which shall be used to collect, maintain, integrate, and retrieve data department-wide and for each officer …. , page 140, 141

Assessing Compliance Paragraph 218 where “APD shall provide in-service training to all employees…”  page 142

Civilian Police Oversight Agency  Implementation, page 178 and 179

Assessing Compliance with Paragraph 273: Requirements for Service of CPOA Members, pages 179, 180

Assessing Compliance with Paragraph 274: CPOA Pre-Service Training, pages 180-181

Assessing Compliance with Paragraph 275: CPOA Annual Training, 181, 182

Assessing Compliance with Paragraph 276: CPOA Ride-Alongs, page 182

Assessing Compliance with Paragraph 277: CPOA Authority and Resources to Make Recommendations, page 183

Assessing Compliance with Paragraph 281: Prompt and Expeditious Investigation of Complaints, pages 184, 18

Link to 17^th Federal Monitor’s Report

https://www.cabq.gov/cpoa/documents/imr-17-w-appendix-a-and-b.pdf

Dinelli Blog Articles On The DOJ Reforms, Federal Monitor’s Reports, APD And The Police Union

 

 

On May 15, nine people were injured or killed by an 18-year-old male armed with an AR-17 style rifle in a mass shooting in Farmington, New Mexico.  Three woman  over the age of 70 were killed  and 2 police officers injured. The 3 fatal shooting victims have been identified as 79-year-old Shirley Voita, 73-year-old Melody Ivie, and 97-year-old Gwendolyn Schofield. Schofield and Ivie were mother and daughter. Police have identified the suspect as 18-year-old Beau Wilson who was shot and killed by police. Wilson was a student at Farmington High School.

The active shooting unfolded around 11 a.m. in a quiet middle-class neighborhood lined with houses and churches in the heart of Farmington and involving up to a quarter of a mile length of the neighborhood street. Wilson  used  an AR-style rifle and used a 9mm handgun and a .22 caliber firearm  belonging  to a family member. Inside the house Wilson shared with his father were 10 other guns although there is no indication that he intended to use them. Police said there were more than 1,400 rounds of ammunition available between what was fired, what was still in the weapons used and what was in the home.

When 18-year-old Wilson stepped out of his father’s house police say he was wearing a bulletproof vest and he had a note in his pocket. The note in Wilson’s pocket was scrawled in green ink and said “If you’re reading this I’m the end of the chapter. … lay eyes or dear put a finger on my little sister.  I promise there will be regrets.”

Police say Wilson fired 141 rounds from his house on North Dustin with the assault-style rifle  before dropping the weapon in nearby bushes, taking off the vest and walking down the street continuing to fire one handgun and then a second.  The shooter fired on at least 6 houses and 3 cars in a “rampage.” The suspect was killed and 2 police officers were shot and wounded in the incident in an exchange of fire.  Both officers have been released from the hospital. Police say they are investigating how Wilson obtained the weapons but noted that the shooter purchased one of them legally in November of 2022.

Farmington Police Chief Steve Hebbe in briefings said this:

“It isn’t a nice contained scene where our officers are able to keep everything and count stuff pretty easily. … It’s spreading throughout the neighborhood. He’s firing at different people, he’s firing at different cars and buildings as he’s walking, and then he begins discarding stuff. … The suspect randomly fired at whatever entered his head to shoot at. … We are doing the best that we can to … look at the evidence to see if we can figure out what the motivation was. … Our initial report from the family of the suspect is that he was struggling with mental health issues. … We’ll wind up finding what medication if any he was taking, whether he was under a doctor’s care in some form or fashion. … This only goes to the why, or the details, it doesn’t go to the why something like this happened in the first place and how we are going to prevent this.”

“But at this point, it appears to be purely random. … At the end of it, when we had a suspect down,  we know we have civilian casualties, we have officers who have been hit and we have fire and EMS responding to the scene before it’s secure. …We still think there’s a possibility of a second shooter in the early stages, nonetheless fire came racing in with their medics to begin treatment on citizens right away. … … Those are the things that frankly keep me up and I agonize over every night as I’m going to bed …  to try to figure out how we’re going to keep our citizens safe in the world.  … .”

The links to quoted news sources are here:

https://www.koat.com/article/new-mexico-mass-shooting-farmington/43896131

https://www.krqe.com/news/new-mexico/i-didnt-know-what-was-going-on-neighbors-recall-farmington-shooting-that-killed-3-elderly-women/

https://www.krqe.com/news/new-mexico/farmington-police-to-update-mass-shooting-investigation-wednesday/

https://www.kob.com/new-mexico/community-gathers-to-remember-victims-of-deadly-farmington-shooting/

https://www.abqjournal.com/2599115/farmington-mass-shooting-4-killed-including-18-year-old-shooter-two-officers-among-10-shot.html

https://www.abqjournal.com/2599559/farmington-shooter-beau-wilson-had-bullet-proof-vest-note-in-his-pocket-police-say.html

GOVERNOR RENEWS CALLS FOR ASSAULT WEAPONS BAN

On May 17, Governor Michelle Lujan Grisham, in response to the Farmington mass shooting, said she would again pursue an assault weapon ban and age restrictions for purchasing firearms.   Both proposals were introduced during the 2023 NM legislative session and failed to clear committees in the Senate and House and failed to reach her desk in this year’s 60-day legislative session.

According to Farmington Police,  the suspect in the  mass shooting purchased a gun legally after turning 18.  Police described one of the firearms used in the attack as an “AR-style rifle.” Authorities said they are also looking into indications the shooter had mental health issues.

Governor Michelle Lujan Grisham said she would keep pursuing ways to reduce gun violence in New Mexico.  She said the issue is complex and does not have a quick-fix solution. The Governor said this:

“Gun violence is an intolerable scourge. What happens to these families is unfair, unthinkable and unimaginable. And this entire community, like so many communities across the state and in America, are just grieving, thinking about what the next gun violence safety measure is.  Let your policymakers know what you think might have been missed in the work that we’re doing and know that increasing the age is back. An assault on a ban on assault weapons, which doesn’t have universal support in many states, including this one. I am putting it on the table. … I want to be able to go to Farmington and say this will never happen again. I don’t know of a tool that prevents all tragedies. … If there was one thing that would cure it, it would already be done.”

The governor said the state would announce a new initiative next week aimed at curbing gun trafficking.  She also said she did not plan to call a special legislative session that would result in partisan “finger-pointing.” However, the Governor left the door open to such action if lawmakers can reach a consensus on contentious crime and gun-related proposals.  The Governor said this:

“I would call a special session … if we could pass something that could be implemented in a timely manner.”

LEGISLATORS RESPOND

Proposals to ban assault weapons have faced strong opposition and skepticism in the Legislature, even among some Democrats. Much of the opposition has centered on how to define what would qualify as an assault weapon and whether a ban would withstand legal scrutiny. Despite reservations on assault weapons bans, leading Democratic legislators also said they are working on bills to establish a 14-day waiting period, expose the sellers of illegal gun modifications to lawsuits and create a registry of people who already own assault weapons.

Las Cruces Democrat State Senator Joseph Cervantes, who has expressed reservations about an assault weapons ban,  expressed optimism about  the prospects for imposing a 14-day waiting period on gun sales to allow authorities extra time to complete a background check on the buyer. Cervantes, a respected trial attorney, is the Chairman of the Senate Judiciary Committee and said lawmakers must take care to craft gun laws that will withstand legal scrutiny. He said he is prepared to renew his push to amend the state Unfair Practices Act to target online sellers of illegal gun modifications. Cervantes said this:

“I’m hoping my colleagues won’t forget the events in Farmington this week when we meet again.  …  It’s not ever enough to pass a law that makes good press and allows us to pat one another on the back, but really has no meaningful impact. … It’s not ever enough to pass a law that makes good press and allows us to pat one another on the back, but really has no meaningful impact”

Santa Fe Democrat State Representative Andrea Romero said she  is working on waiting-period legislation. She is also revisiting a previous proposal to ban the sale and possession of assault weapons. According to Romero the new version of the bill would be modeled on the semiautomatic weapons ban passed in Illinois and establish a registry for people who already own such guns. Romero said this of Farmington’s mass shooting:

“It’s just heartbreaking. … As we heal from all of this, it’s ‘what can we do next?’… That’s where my mindset is.”

Las Cruces Democrat Senator Carrie Hamblen said the young age of the shooting suspect in Farmington underscores the need to raise the minimum age to 21 for the purchase of semiautomatic rifles.  Hamblen said this:

“We will continue to pursue legislation that is about responsible gun ownership.”

Many of this year’s gun safety bills encountered fierce resistance from Republican lawmakers and other opponents who said they would interfere with the rights of law-abiding citizens and do nothing to deter crime. Not at all surprising Republican lawmakers said Democrats lawmakers should focus on meaningful funding for mental health services, not “anti-gun rhetoric.” House Republican spokesman Matt Garcia-Sierra said this in a written statement:

“One of the root causes of the crime epidemic sweeping this progressive state is the fact that little has been done to address mental health access and delivery despite the billions in surplus tax revenue over the 5 years of Lujan Grisham’s tenure. … [New Mexicans] are seeking action that addresses the root causes, not just political spin that looks good on a postcard or newspaper headline.”

OTHERS REACT

The 2023 New Mexico 60-day legislative session had upwards of 40-gun control measures introduced, but only 10 were seriously considered and of those 10, only 2 made it through the session to become law.  Advocacy groups like New Mexicans to Prevent Gun Violence feels like more should have been done. Miranda Viscoli, the co-president of New Mexicans to Prevent Gun Violence said 3 things need to be done and said  this:

“It was an extremely disappointing session. … [First] we need to pass common-sense gun violence prevention laws. [Second] we need gun owners to lock up their guns. There are way too many stolen guns out there, and they’re getting into the hands of children. And three, we really need to come together as a state and as a country and say, this isn’t working.”

The link to quoted news source materials are here:

https://www.abqjournal.com/2599366/farmington-shooting-renews-debate-over-new-mexico-gun-laws-would.html

https://www.koat.com/article/farmington-shooting-michelle-lujan-grisham/43910069

MASS SHOOTINGS ON THE RISE 

As of May 21, 2023, the year has seen more mass killings to date than any other year since data collection started in 2006. There have been 553 mass killings in the United States since 2006, and at least 2,880 people have died, according to a database maintained by The Associated Press and USA Today in partnership with Northeastern University. Those include killings where four or more died, not including the assailant, within a 24-hour period. So far in 2023, the nation has witnessed the highest number on record of mass killings and deaths to this point in a single year.

https://apnews.com/article/mass-shooting-anniversary-uvalde-buffalo-325b8649c7d34577051ed4118b8dbac4

https://apnews.com/article/mass-killings-record-pace-2023-d685a6cd67e0f449f3f9d1d8713d451c

NEW MEXICO’S ALARMING FIREARM FATALITY RATE

The backdrop to all the proposed gun control measures that were considered by the 2023 New Mexico legislature are New Mexico’s and Albuquerque’s high crime rates. Every year, the Federal Bureau of Investigation (FBI) compiles data from police agencies across the nation.  The data has showed New Mexico has the nation’s second highest rate of total crimes against persons.

NEW MEXICO CRIME RATES

New Mexico’s firearm fatality rate is among the nation’s highest despite the enactment in recent years of laws extending background check requirements for gun purchases and allowing firearms to be temporarily seized from individuals deemed a threat to themselves or others.

The FBI numbers show New Mexico’s per-population kidnapping and abduction rate was the highest in the nation. New Mexico’s firearm ownership and fatality rate is also among the nation’s highest. In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% higher than the national average according to the think tank Rand Corp.

In 2021 New Mexico law enforcement reported over 28,000 crimes against persons. That includes crimes such as murder, rape, assault, and kidnapping.  Given New Mexico’s population, the state’s crime rate against persons per population is the second highest in the nation. FBI data shows for every 100,000 people in New Mexico, law enforcement reported 2,189 crimes against persons in 2021. The only state with a higher rate was Arkansas, which reported 2,276 crimes per 100,000 people.

New Mexico law enforcement agencies reported nearly 25,500 instances of assault in 2021. That’s 1,872 more than the state reported in 2020. New Mexico law enforcement also reported more homicides in 2021 than the year before. Across New Mexico, police reported 193 homicides to the FBI in 2021. That’s 67 more than in 2020.  Not at all surprising is that the majority of the state’s reported homicides were in Albuquerque.

New Mexico is not at the top of the list in all crime categories. While New Mexico law enforcement reported 1,663 instances of sex offenses in 2021, 6 other states had higher rates of sex offenses per population. That includes states like Alaska, Utah, and Montana.

New Mexico law enforcement reported 822 kidnappings and abductions to the FBI in 2021. That puts New Mexico at the top of the list regarding kidnappings and abductions per 100,000 people. Kansas, Colorado, and Utah also rank high on the list of kidnappings and abductions per population.

New Mexico’s firearm fatality rate is among the nation’s highest. According to the New Mexico Department of Health, there were a total of 562 state residents who died in 2021 due to firearm-related injuries.  This figure is up significantly from the 481 firearm-related deaths in 2020. Of the 562 state residents who died in 2021 due to firearms, 319 cases, were classified as suicides and 243 were classified as homicides. In New Mexico, the rate of 14.9 firearm-related deaths per every 100,000 residents in 2010 nearly doubled over the last decade and there were 23 such deaths for every 100,000 residents in 2020.

ALBUQUERQUE AT FOREFRONT OF CRIME WAVE

Albuquerque is at the forefront of New Mexico’s high violent crime rate.  According to legislative data released, the city had about 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 two years have also been two very violent years for Albuquerque.  The number of homicides in the city have broken all-time records.  In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114.  In 2022, there were 120 homicides, a historical high.

On Thursday, March 16, 2023 the Albuquerque Police Department (APD) released the 2022 crime statistics along with crime statistics for 2022 for a comparison. During his March 16 press conference announcing the City’s 2022 crime statistics, APD Chief Harold Medina embellished that a  3% drop in  overall total of crime and a 4% decrease in Crimes Against Persons and the 2% decrease in Crimes Against Property was positive movement.

The slight 3% decrease in overall crime was over shadowed by the 24% spike in CRIMES AGAINST SOCIETY which are largely made up of drug and gun offenses and a 71% increase in murders over the last 6 years.  Chief Medina presented a vertical bar graph that revealed that over the last 6 years, Albuquerque has had a dramatic 71% spike in homicides.  The number of homicides reported over the last 6 years is as follows:

2017: 70 homicides

2018: 69 homicides

2019: 80 homicides

2020: 78 homicides

2021:  110 homicides

2022:  120 homicides

On March 16, in addition to reporting that there has been a 71% spike in homicides, APD officials reported that over the past 6 years there has been a 28% increase in Aggravated Assaults which by definition includes the use of a firearms. Following are the Aggravated Assaults numbers:

2017: 4,213

2018: 5,156

2019: 5,337

2020: 5,592

2021: 5,669

2022: 5,399

Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021.  These numbers place Albuquerque among America’s most dangerous cities.

All residents are at increased risk of experiencing aggravated robbery, auto theft, and petty theft.  The chances of becoming a victim of property crime in Albuquerque are 1 in 20, an alarmingly high statistic. Simple assault, aggravated assault, auto theft, and larceny are just some of the most common criminal offenses in Albuquerque. Burglary and sex offense rates In Albuquerque are also higher than the national average.

ALBUQUERQUE IS RANKED 17TH AMONG 70 OF THE LARGEST CITIES

On April 26, the Major Cities Chiefs Association released its Violent Crime Survey and national totals for the crimes of homicides, rapes, robberies and aggravated assaults. According to the report, Albuquerque is ranked 17th among 70 of the largest cities in the nation looking at trends in the 4 categories. The single most troubling statistic is Albuquerque’s increase in homicides.

The statistics for Albuquerque reported by the Major Cities Chiefs Association for the last two years were as follows:

Homicide

2022: 120

2021: 110

Rape

2022: 194

2021: 286

Robbery

2022:  962

2021: 747

Aggravated Assault

2022: 2,291

2021: 2,373

The Major Cities Chiefs Association report shows in 2022, there was a 5% drop in homicides nationwide. According to the Major Cities Chiefs Association, Albuquerque had one of the worst homicide rates in the nation and is one of 27 cities across the nation that saw an increase in homicides.

The report shows in 2021, there were 106 homicides. In 2022, there were 115, an 8% increase. Other nearby cities like Phoenix saw a 13% increase in homicides. Meanwhile, to the north, the Denver Police Department reported an 8% decrease in homicides. Just four hours south, the city of El Paso saw a 28% decrease in homicides, one of the highest drops in the report.

Click to access MCCA-Violent-Crime-Report-2022-and-2021-Midyear.pdf

https://www.koat.com/article/albuquerque-homicide-rate-increase/43702586

THE BIGGER PICTURE

On Thursday, March 16, 2023 the Albuquerque Police Department (APD) released the 2022 crime statistics along with crime statistics for 2021 for a comparison.  APD Chief Harold Medina reported Albuquerque crime statistics as follows:

CRIMES AGAINST PERSONS

EDITORS NOTE: Crimes Against Persons include murder, rape, and assault, and are those in which the victims are always individuals.

2021:  13,242

2022:  12,777 (4% DECREASE)

CRIMES AGAINST PROPERTY

EDITOR’S NOTE: Crimes Against Property include robbery, bribery, and burglary, or to obtain money, property, or some other benefit.

2021:  44,822

2022: 43,824 (2% DECREASE)

CRIMES AGAINST SOCIETY

EDITOR’S NOTE: Crimes Against Society include gambling, prostitution, and drug violations, and represent society’s prohibition against engaging in certain types of activity and are typically victimless crimes.

2021: 3,903

2022: 5,133 (24% INCREASE)

2023 LEGISLATIVE SESSION RECALLED

When the 2023 New Mexico 60 day legislative 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.

Only 2 of the 4 measure’s the Governor endorsed were enacted by the legislature. The 2 measures enacted and signed into law were:

House Bill  9.   This bill is referred to as the  Bennie Hargrove Gun Safety Act also known as “Bennies Bill” and makes 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 306. This bill  is directed at “straw purchases” of firearms and making it illegal to buy a firearm on behalf of someone who’s not allowed to have it or intends to use in a crime.

GUN CONTROL MEASURES THAT FAILED

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

House Bill 50 would have prohibited magazines with more than 10 rounds.

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

House Bill 100 would have 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.

House Bill 101  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.

Senate Bill 44 would have made 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 have 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. The bill would have effectively raised 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.

COMMENTARY AND ANALYSIS

Violent crime and gun violence  is simply out of control. The Farmington mass shooting combined with New Mexico’s and the City of Albuquerque’s violent crime and murder rates clearly establish that there are in fact “dramatic circumstances” that exist right now that justify a special session and not wait until the 2024 legislative session.

Governor Michelle Lujan  should call a special session to deal with crime and punishment as well as gun control. Crime and punishment must be balanced with reasonable gun control to be effective in bringing down crime and to stop mass shootings.

If Governor Lujan Grisham is indeed sincere about calling a special session, a much different approach needs to be taken because the State’s crime crisis is very real and will remain until something is done.  All the gun control legislation in the 2023 legislative session taken separately was piecemeal at best.  The legislation failed to strike a balance between gun control and enhanced penalties for the commission of crime with guns.

Governor Michelle Lujan Grisham should seek the enactment of an “Omnibus Gun Violence And Sentencing Violent Act” that could be enacted  by a special session. The “Omnibus Gun Violence And Sentencing  Act”  would include the following gun regulation measures:

• Outlaw possession and sale assault weapon style weapons such as AR-15-style rifles and pistols with magazines of 10 rounds or more making it a third degree felony with a 6 year mandatory sentence.
• Outlaw the sale of “ghost guns” parts.
• Outlaw possession of semiautomatic firearm converters.
• Limit all retail gun purchases of all types of guns per person to one gun per month.
• Institute mandatory extended waiting period to a full month for gun purchases.
• Outlaw the sale in New Mexico of “bump-fire stocks” and other accessories.
• Allow crime victims to sue gun manufacturers for actual and punitive damages.
• Require the mandatory purchase of “liability insurance” with each gun sold.
• Implement in New Mexico mandatory handgun licensing, permitting, training, and registration requirements.
• Expand gun ownership age limitation to age 19 for rifles and shotguns.
• Expand the prohibition of deadly weapons from a school campus to school zones making it a third-degree felony.
• Call for a constitutional amendment to repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a statewide vote and would ensure a healthy debate.

There must be a zero tolerance of crimes commited with firearms. The following crime and sentencing provisions should be included in the “Omnibus Gun Violence And Sentencing  Act”:

• Making possession of a handgun by someone who commits a crime an aggravated third-degree felony mandating a 6-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.
• Allow firearm offenses used in a drug crime to be charged separately.
• 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.
• Mandate public school systems and higher education institutions to “harden” their facilities with more security doors, security windows, security measures, including metal detectors at single entrances designated and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.
• Cases of juveniles arrested in possession of a weapon are to be referred the District Attorney for automatic prosecution as an adult for sentencing.

The “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.

The failure of the 2023 New Mexico legislature to enact reasonable and responsible gun control legislation is very difficult to accept.  Democrats hold a 45-25 majority in the House and a 27-15 in the Senate. It’s a damn shame more was not done and Democrats do look foolish on the issue of failing to enact reasonable and responsible gun control measure that will bring down crime and save lives. Until the New Mexico Legislature, especially Democrats, get serious and aggressive about responsible gun control and crime and punishment, the State will continue to suffer high violent crime rates as well as more mass shootings.

 

On May 16, 2023, the online news agency New Mexico Sun published the below 750 word Dinelli opinion guest column on the proposed Charter Amendment to establish a City Council/City Manager form of Government:

HEADLINE: “ABQ councilors’ move to diminish mayor’s authority sparks debate”

“On April 27, first term City Councilors Democrat Louie Sanchez and Republican Renee Grout announced legislation proposing a City Charter amendment for a public vote that will make the Mayor of Albuquerque a member of the City Council. They want to transfer all the mayor’s executive and city management duties to a city manager chosen by the city council. According to the proposed legislation, the mayor would “be recognized as the head of the City government for all ceremonial purposes.”  It turns out the legislation has never been vetted, researched or recommended for approval by the City Charter Review Task Force responsible for making recommendations for charter amendments.

Under the proposed legislation, a “professional” city manager would be selected by the City Council to oversee and manage all 27 city departments and directors. The city’s existing Chief Administrative Officer (CAO) already serves this function and presumably would be abolished. The city manager would administer the city’s personnel rules and regulations for the over 7,000 city employees.  The City manager would be responsible to prepare and formulate the city’s annual operating budget for city council review and adoption.  This year’s 2023-2024 proposed budget is $1.4 Billion.

The mayor would preside over council meetings, but would only be allowed to vote in case of a tie vote. The mayor would have no administrative duties, nor hiring authority, and be allowed to vote at council meetings only in the event of a tie. The mayor would have no veto power over enacted legislation and would have less power than a city councilor on pending and enacted legislation.

On September 28, 1998 the Albuquerque City Council enacted city ordinance § 2-1-7 creating the Charter Review Task Force. The charge of the Charter Review Task Force is to examine any and all articles, sections, and provisions of the City Charter for the purpose of recommending any amendments to the Charter deemed appropriate.  The Task Force is required to hold one or more public hearings at which the citizens of the city shall be encouraged to give their views on the Charter. The Task Force is required to present its recommendations to the Mayor and the Council in the form of a final report.

Democrat City Councilor Louis Sanchez and Republican Renee Grout have pretty much made fools of themselves by proposing a City Charter amendment for a public vote that will make the Mayor of Albuquerque a member of the City Council and creating a city council appointed city manager without it being vetted by the Charter Review Task Force. What they have done smacks of pure political hackery motivated by frustration on their part and caused by sure ignorance of the process used and relied upon for decades to evaluate the city’s form of government.

Both Democrat City Councilor Louis Sanchez and Republican Renee Grout were elected on November 2, 2021 having never been elected nor served before in any other elective office. They have served a mere 16 months as city councilor having been sworn into office on January 1, 2022.  Both now proclaim the city needs a complete and dramatic restructuring of city government with a 50 year throwback to the past city commission-city manager form of government without offering any substantive evidence that the current Mayor-Council form of government is failing or not working.  All they offer is political rhetoric. They both prefer to sponsor legislation amending the Charter without the convening of the Charter Review Task Force which was created in part to prevent this sort of nefarious conduct by city councilors.

There is very little doubt what is motivating Sanchez and Grout. It is their sure dislike for Mayor Tim Keller and his progressive policies. Keller has repeatedly out maneuvered the City Council with his veto.  In the last 16 months, Sanchez and Grout have tried and have failed to override at least 5 Keller vetoes.  Thus far they have failed to stop Keller’s “Housing Forward ABQ Plan” which will allow 750 square foot casitas and duplexes in all residential back yards.  They have failed to hold Mayor Keller accountable for impropriety, such as the violation of the anti-donation clause with the $236,622 purchase of artificial turf for the Rio Rancho Events Center for the benefit of the privately owned New Mexico Gladiators.

Their solution is get rid of Keller’s power as Mayor in case he runs again, which is likely, for another term, and wins, which is highly questionable. The council should vote NO rejecting the Charter Amendment.”

MAYOR KELLER REACTS

On May 15, a spokesperson for Mayor Tim Keller issued the following statement:

“We are committed to working with Council and taking a hard look at how we can work more efficiently, but an extreme change to our form of government is not the answer. This proposal would drastically alter Albuquerque’s local government, eliminating individual accountability and checks and balances, placing all city power into a committee and an unelected city manager.”

https://www.kob.com/new-mexico/albuquerque-city-councilors-to-discuss-change-to-city-charter/

___________________________

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 April 26, the Major Cities Chiefs Association released its Violent Crime Survey and national totals for the crimes of homicides, rapes, robberies and aggravated assaults. According to the report, Albuquerque is ranked 17th among 70 of the largest cities in the nation looking at trends in the 4 categories. The single most troubling statistic is Albuquerque’s increase in homicides.

The Major Cities Chiefs Association uses the Federal Bureau of Investigation Uniform Crime report definitions of Homicide, Rape, Robbery and Aggravated Assault.  The definitions used and the national statistics are as follows:

HOMICIDE

Homicide is divided into the two major categories of murder and nonnegligent manslaughter. Murder is defined as the willful (nonnegligent) killing of one human being by another. Deaths caused by negligence, attempts to kill, assaults to kill, suicides, and accidental deaths are excluded.   Justifiable homicides are classified separately and the definition is limited to: (1) the killing of a felon by a law enforcement officer in the line of duty; or (2) the killing of a felon, during the commission of a felony, by a private citizen.  The second category is Manslaughter by Negligence and is defined as the killing of another person through gross negligence. Deaths of persons due to their own negligence, accidental deaths not resulting from gross negligence, and traffic fatalities are not included in the category Manslaughter by Negligence.  The total number of murders for the last two years in the United States were:

2022: 4,511

2021: 4,624

RAPE

Forcible rape is defined as the carnal knowledge of a female forcibly and against her will. Rapes by force and attempts or assaults to rape, regardless of the age of the victim, are included. Statutory offenses (no force used— victim under age of consent) are excluded. The total number rapes for the last two years in the United State were:

2022: 15,541

2021: 16,371

ROBBERY

Robbery is defined as the taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear. The total number robberies for the last two years in the United States were:

2022:  60,175

2021:  53,212

AGGRAVATED ASSAULT

Aggravated assault is defined as an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. The total number of aggravated assaults in the United States  for the last two years were:

2022:  156,735

2021:  152,760

The statistics for Albuquerque reported by the Major Cities Chiefs Association for the last two years were as follows:

Homicide

2022: 115

2021: 106

Rape

2022: 194

2021: 286

Robbery

2022:  962

2021: 747

Aggravated Assault

2022: 2,291

2021: 2,373

The Major Cities Chiefs Association report shows in 2022, there was a 5% drop in homicides nationwide. According to the Major Cities Chiefs Association, Albuquerque had one of the worst homicide rates in the nation and is one of 27 cities across the nation that saw an increase in homicides. The report shows in 2021, there were 106 homicides. In 2022, there were 115, an 8% increase. Other nearby cities like Phoenix saw a 13% increase in homicides. Meanwhile, to the north, the Denver Police Department reported an 8% decrease in homicides. Just four hours south, the city of El Paso saw a 28% decrease in homicides, one of the highest drops in the report.

Click to access MCCA-Violent-Crime-Report-2022-and-2021-Midyear.pdf

https://www.koat.com/article/albuquerque-homicide-rate-increase/43702586

THE BIGGER PICTURE IS MUCH WORSE

The Major Cities Chiefs Association report was only for the two years of 2021 and 2022. What the report did not reveal is that Albuquerque’ homicides have spiked the last 6 years and the city has in fact had a 71% spike in homicides.

 On Thursday, March 16, 2023 the Albuquerque Police Department (APD) released the 2022 crime statistics along with crime statistics for 2021 for a comparison.  APD Chief Harold Medina reported Albuquerque crime statistics as follows:

CRIMES AGAINST PERSONS

EDITORS NOTE: Crimes Against Persons include murder, rape, and assault, and are those in which the victims are always individuals.

2021:  13,242

2022:  12,777 (4% DECREASE)

CRIMES AGAINST PROPERTY

 EDITOR’S NOTE: Crimes Against Property include robbery, bribery, and burglary, or to obtain money, property, or some other benefit.

2021:  44,822

2022: 43,824 (2% DECREASE)

CRIMES AGAINST SOCIETY

EDITOR’S NOTE: Crimes Against Society include gambling, prostitution, and drug violations, and represent society’s prohibition against engaging in certain types of activity and are typically victimless crimes.

2021: 3,903

2022:  5,133 (24% INCREASE)

Chief Medina also presented a vertical bar graph that revealed that over the last 6 years, Albuquerque has had a dramatic 71% spike in homicides.  The number of homicides reported over the last 6 years is as follows:

2017: 70 homicides

2018: 69 homicides

2019: 80 homicides

2020: 78 homicides

2021:  110 homicides

2022:  120 homicides.

KELLER’S FAILED VIOLENT CRIME REDUCTION PROGRAMS

In 2019, Mayor Tim Keller reacting to the spiking violent crime rates, announced 4 programs in 9 months to deal with and bring down the city’s high violent crime rates. Keller also launched his “Community Safety Department” and his “Metro Crime Initiative” which he claimed will fix the “broken criminal justice” system.

All 5 initiatives involve early intervention and partnership with other agencies and are summarized as follows:

1. THE SHIELD UNIT

In February 2018 the Albuquerque Police Department (APD) created the “Shield Unit”. The Shield Unit assists APD Police Officers to prepare cases for trial and prosecution by the Bernalillo County District Attorney’s office.

https://www.abqjournal.com/1325167/apd-expands-unit-that-preps-cases-for-prosecution.html

2. DECLARING VIOLENT CRIME A PUBLIC HEALTH CRISIS

On April 8, 2019, Mayor Keller and APD announced efforts that will deal with “violent crime” in the context of it being a “public health crisis” and dealing with crimes involving guns in an effort to bring down violent crime in Albuquerque.

3. THE “VIOLENCE INTERVENTION PLAN” The “Violence Intervention PLAN (VIP program)

On November 22, 2019 Mayor Tim Keller announced what he called a “new initiative” to target violent offenders called “Violence Intervention Plan” (VIP) . Mayor Keller proclaimed the VIP is a “partnership system” that includes law enforcement, prosecutors and social service and community provides to reduce violent crime. Mayor Keller stated:

“… This is about trying to get these people not to shoot each other. …This is about understanding who they are and why they are engaged in violent crime. … And so, this actually in some ways, in that respect, this is the opposite of data. This is action. This is actually doing something with people. …”

The “Violence Intervention Plan” can be described as a “fantasy land” experiment especially when there is little that can be done to prevent the violent crime of murder by “trying to get these people not to shoot each other” and “understanding who they are and why they are engaged in violent crime.”

4. THE METRO 15 OPERATION PROGRAM

On Tuesday, November 26, 2019 Mayor Tim Keller held a press conference to announce a 4th program within 9 months to deal with the city’s violent crime and murder rates. At the time of the press conference, the city’s homicide count was at 72, matching the city’s record in 2017.

Simply put, all 4 of Keller’s programs can be described as failures and not having any real statistical impact on reducing crime. The truth is that for a good 3 years before the COVID pandemic hit the city hard in 2020 under Keller’s watch, violent crime rates were spiking, so much so that 4 years ago then candidate for Mayor Tim Keller made reducing the city’s crime rates a cornerstone of  his campaign.

5. METRO CRIME INITIATIVE

On September 23, 2021 Mayor Keller concluded a conference he dubbed he the “Metro Crime Initiative”. Participants included APD, the DA’s Office, the Courts and many other stakeholders to address what all participants labelled the “broken criminal justice” system.

The entire “Metro Crime Initiative” started with the phony proposition declared by Mayor Keller and all the participants that our criminal justice system is broken. During the September 23 concluding press conference, local leaders admitted they have not been providing enough protection and resources to keep people safe.

A list of 40 action items were revealed by Keller with the hope that once implemented they will lower Albuquerque’s crime efficiently and quickly. All the participants patted each other on the back for doing such a good job and asserting they have found the solution.

When you examine the “check list” of the 40 different proposals that were the result of the Metro Crime Initiative, the proposals are essentially what all the participants have been working on over the past 3 years and include many programs already announced. The list contains nothing new. The items listed are ones that the participants should have been doing in the first place. A detail “check list” pamphlet was produces containing details of each action plan and can be found here:

https://www.cabq.gov/mayor/documents/mci.pdf

COMMENTARY AND ANALYSIS

In 2017 when the New Mexico State Auditor Tim Keller ran for Mayor, he ran on the platform of reducing the city’s high crime rates, implementing the Department of Justice (DOJ) consent decree reforms, increasing the size of the Albuquerque Police Department from the then 950 to 1,200 and returning to “community-based policing”. In August, 2017, Keller went so far as to say about the city’s high crime rates:

“It’s unfortunate, but crime is absolutely out of control. It’s the mayor’s job to actually address crime in Albuquerque, and that’s what I want to do as the next mayor.”

Fast forward to October 4, 2021 when Keller was running for a second term and confronted by the Albuquerque Journal about the city’s spiking crime rates during his first term.  Keller said this:

 “I think we have honored the commitment to fight crime in a real way. That’s not just about talking tough or doing roundups or something like that, we’re actually trying to address crime from all sides. … And we have done that. Had we not done that our city would be in a much, much worse place. … It’s either naive or disingenuous for anyone to think that our crime and drug problems are so surface level that they can just be fixed by being tougher, or by arresting people. … I don’t think it’s fair to say that there’s something we could have done that would have prevented an increase in homicide … I think all around the country, it’s just shown that that’s just not true right now. … I think I’ve provided the right kind leadership at the right time and in a difficult time …”

Mayor Tim Keller reacting to the April 26, 2023 Major Cities Chiefs Association report had this to say:

“We have two challenges working against us. One is national trends that are all getting worse so we have to do what we can in our city, but when there’s a tidal wave of crime across America, it’s going to affect us.”

It’s not an issue of being fair to Mayor Keller, not an issue of leadership, nor a “tidal wave across America”  but one of being held accountable for failing to do what you promise to do as an elected official. Keller’s comments about homicide prevention was and still is a pathetic attempt to avoid admitting his programs to prevent violent crime have failed.

Keller wants the public to forget the promises he made and his failures and APD’s ability to reduce crime. The Major Cities Chiefs Association report shows in 2022, there was a 5% drop in homicides nationwide, but not in Albuquerque where we had another spike in murders going from 78 murders in 2020 to 110 murders in 2021 and 120 murders in 2022. The “tidal wave across America” Keller referred to did not hit the northern shores of Denver, Colorado where the Denver Police Department reported an 8% decrease in homicides nor the southern shores of the city of El Paso, Texas which saw a 28% decrease in homicides.

A 71% spike in homicides during Keller’s tenure as Mayor is an obscene reflection that the city has become one of the most violent cities in the country under his tenure.  This is our new norm as Keller blames it on national trends.  Keller’s promised 1,200 sworn police during his 5 years as Mayor never materialized. The  city and APD never once in his 5 years as Mayor even had 1,000 sworn police.  Keller’s community base policing has yet to fully materialize and APD is still struggling to fully implement the Department of Justice reforms and come into compliance with the Court Approved Settlement Agreement (CASA).

Keller’s “One Albuquerque” has become Keller’s “One Albuquerque’s Crime Scene”.