During the last 3 legislative sessions, New Mexico lawmakers have passed bills that addressed gun control.  The legislation has included expanding background check requirements for firearm purchases and passage of a “red flag” law that allows guns to be seized from individuals deemed to pose a threat to themselves or others.  More gun safety laws are expected to be introduce during the 2023 legislative session because of the spike in New Mexico firearm-related deaths.

The 2023 New Mexico legislative session is once again emerging as a banner year for more gun control legislation.  The proposed legislation ranges from banning the possession of AR-15-style rifles to requiring gun storage away from children. Other measures include banning firearms at polling places, a 14-day waiting period for all firearm purchases and the legal liability of gun manufacturers.

GOVERNOR LUJAN GRISHAM BACKED MEASURES

Before becoming Governor, Michelle Lujan Grisham was a strong advocate of gun control during her years in congress.   During her first term as Governor, Lujan Grisham pushed lawmakers to pass gun safety legislation.  She said through a spokeswoman she plans to continue that effort during the 2023 legislative session. Lujan Grisham spokeswoman Maddy Hayden said this:

“The governor will pursue a robust package of common-sense gun safety legislation in the upcoming session, the details of which will be decided in the coming weeks. … The governor is clear: New Mexicans are beyond sick and tired of crime, and gun violence continues to be a nationwide scourge that warrants immediate and outcomes-focused attention.”

Governor Lujan Grisham announced in her January 17 “State of the State” address she is supporting enactment of further gun control measures.  She has announced support of the following 4 gun control measures in this year’s 2023 60 day legislative session:

• 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. Santa Fe Democrat State Representative Reena Szczepanski said this about the gun safety storage bill:

“Firearms have increased to become the leading cause of death for children. …This is a huge public health crisis now for children. …  [The safely storing firearms]  bill … is really geared at keeping children safe, keeping children safe in their homes, and really addressing responsible storage. …  I think we can do this in a way gun owners can support and that addresses safety.”

• 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.

In her State of the State address, she told lawmakers this:

“We all know that we cannot keep our people safe, [we] can’t keep our police officers and their families safe if weapons of war continue to flood our neighborhoods.”

GUN BILLS INTRODUCED

Lawmakers were allowed to prefile legislation starting January 3 for the 60-day legislative session, which got underway on January 17. Unlike the shorter 30-day sessions held during even-numbered years, bills dealing with any type of subject issue can be proposed without approval from the governor during the longer 60-day sessions.  Thus far the following 6 measures have been introduced:

House Bill 9: Create the crime of negligently making a firearm accessible to a minor.

House Bill 50: Prohibit magazines with more than 10 rounds.

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

House Bill 100: Establish a 14-day waiting period for the purchase of a firearm.

House Bill 101: Prohibit possession of assault weapons – such as certain semiautomatic rifles and pistols – and magazines of 10 rounds or more.

Senate Bill 44: Prohibit carrying a firearm within 100 feet of a polling place during an election.

Senate Bill 116: Raise the minimum age to 21 for purchasing an automatic or semiautomatic firearm. Santa Fe Democrat State Representative Reena Szczepanski described the bill increasing the age to purchase an assault weapon as closing a loophole.  She said this:

“It’s basically closing a bit of a loophole, because right now the age to purchase other types of handguns, is 21.  And so we’re looking at just this incremental approach.”

FIREARM STORAGE BILL ADVANCES IN THE HOUSE

On January 25, House Bill 9, the bill making it a crime to negligently making a firearm accessible to a minor, was voted with a “Do Pass” recommendation in House Consumer and Public Affairs Committee on a 4 to 2 vote along party lines. 4 Democrats voted Yes and 2 Republicans voted NO. Under the law  criminal charges could only  be brought  if the minor later brandishes or displays the firearm in a threatening way or uses it to kill or injure someone.

Under House Bill 9, adult gun owners could not be charged, even if a minor gained access to their gun, under the follow circumstances:

1. If they’d stored the firearm in a secure container or other place a reasonable person would believe is secure
2. The firearm was locked and inoperable
3. A minor broke into the home or
4. The gun was used in self-defense.

Albuquerque area Representative  Pamelya Herndon, a co-sponsor of House Bill 9, said the bill has exemptions intended to protect good-faith efforts to safely store firearms.

For over 2 hours, the committee heard testimony from dozens of gun owners, law enforcement leaders and residents in support and in opposition to the legislation.

Democrat supporters of House Bill 9 said the proposal could save lives by ensuring that gun owners who are parents would take sufficient steps to ensure their guns are secured and that their children  would not have access to their parent’s gun.

Retired engineer Regina Griego, whose nephew shot and killed five family members in 2013, told the committee the bill could save lives by ensuring children  cannot take a parent’s gun. Grego told the committee:

“I’m convinced, without easy access to these firearms, my family members would be alive today.”

Vanessa Sawyer, the grandmother of Bennie Hargrove, who was shot and killed by another student who took his parent’s gun to school, also testified in favor of passage.

Republican opponents of House Bill 9 argued the law might leave gun owners without quick access to a firearm for self-defense. They also suggested firearms are being singled out inappropriately when knives, cars and other items also do tremendous harm.

Louie Sanchez, the owner of Calibers indoor shooting ranges, said the proposed legislation  is “misguided”.  Sanchez said this:

“We’re opposed to a punitive law. … There’s no substitute for education, and we all know that.”

House Bill 9 was  referred to the House Judiciary Committee were it will likely again receive a Do Pass recommendation and referred to  the full House of Representatives for a full vote. If it passes the House,  it will then be referred to the Senate where it will go through the Senate Committee process before a full Senate vote.

The link to the quoted news source is here:

https://www.abqjournal.com/2567439/firearm-storage-bill-advances-in-the-house.html

EXPECT HEATED OPPOSTION

As is the case in past legislative sessions on proposed gun measures, you can expect heated debate and organized opposition an all gun control legislation.

REPUBLICAN OPPOSITION

All the gun control legislation will face fierce opposition from Republican lawmakers and likely all New Mexico Sherriff’s.  Most New Mexico sheriffs strenuously opposed the 2021 “red flag” gun law bill advocated by Governor Michelle Lujan Grisham that allows law enforcement officers, contingent on a judge’s approval, to seize guns from individuals that are found to pose an immediate safety risk.  The Sheriffs falsely argued the law was “unconstitutional” and then politically retaliated against the Governor by supporting or endorsing her Republican opponent, Mark Ronchetti.

Sandia Park Republican Stefani Lord said Democrt sponsored gun safety proposals focus on a “tool” used to commit crimes, but not the issues that are driving the increase in New Mexico violent crime rates.  Lord said that it is drug addiction, mental illness and illicit firearm trafficking that need to be addressed.  Lord said this:

“I feel the gun bills they present are consistently going after responsible gun owners and are not addressing crime issues.  … On the Democrat side, they are constantly pushing to focus on just the tool, the tool that is used to commit a crime, and not the issues that are actually behind all the reasons that we have very high levels of crime. We are lacking severely on behavioral health and rehabilitation.  … I know that there’s some bills being drafted for mental health and for rehabilitation, for drug addiction, and maybe those will get through, or maybe we can actually work together. Because I feel if the Republicans and the Democrats could work together on some of these issues, we might actually do what is best for New Mexico.”

Republican State Representative Stefani Lord from Sandia Park relied on  the traditional Republican dogma argument the gun legislation will  turn law-abiding gun owners into felons just for having property they legally purchased. She said that would be the case with bans on AR-15-style rifles or magazines with more than 10 rounds.  Lord said this:

“The criminals are going to have access to whatever they want. … I’m trying to make sure that our legal gun owners still have a way to defend themselves, their home, their property, their livestock.”

Lord went so far to say that even some of the less expansive, reasonable  gun proposals are problematic.  She said a gun storage requirement might leave a woman without enough time to defend herself against a violent ex-husband. She said this:

“They need to be able to protect themselves.  … Especially in rural America, it takes a while for law enforcement officers to get there.”

Advocates for gun owners say the number of gun proposals this year is unusual.  Zac Fort of the New Mexico Shooting Sports Association said none of the legislation is an effective way to combat crime. Fort said this:

“We’re used to seeing a lot of bills  … but I think the severity of the bills has definitely increased this year. … We’re not able to hold criminals accountable right now. … I don’t think it’s a problem that we don’t have enough laws. I think it’s a problem of prosecution.”

DEMOCRAT SUPPORT

The New Mexicans to Prevent Gun Violence is backing the legislation the Governor is supporting.

Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence said she’s optimistic about significant legislation making it to the governor’s desk this year proclaiming the political environment has changed and that lawmakers have seen the impact of the bills they have already passed.  She also said the rise in violence amid the pandemic proves there’s more to be done. Viscoli said this:

“We’re realizing we passed some pretty good gun-violence prevention laws, … They’re working, and they’re not taking everybody’s guns away. … People are literally tired of the gun violence.”

Santa Fe Democrat State Representative Andrea Romero is sponsoring an assault weapon ban and waiting period for gun purchases. She said she’s seen the “tide change” at the Capitol in recent years. She said the massacre of children in Uvalde, Texas, last year was the tipping point for her that motivated her to propose new restrictions.  Romero told the Albuquerque Journal in an interview:

“These are really smart pieces of legislation. … We’re not just trying to take away guns.”

Albuquerque area Democrat Representative Pamelya Herndon has said she plans to again sponsor legislation to make it a crime for adults to fail to keep their firearms out of the reach of children.  Herdon’s legislation was the result  of  the 2021 killing of eighth-grader Bennie Hargrove at Jefferson Middle school. The legislation is supported by a group of Albuquerque students who have mobilized against gun violence.

Herndon’s legislation failed during the last session due to concerns about possible unintended consequences and she said changes to the legislation will be made to address critics concerns.  Critics argued the firearm storage bill would place responsible gun owners in jeopardy of facing criminal charge.  In response, Herndon said this:

“The purpose of the legislation is not to create another criminal penalty but the purpose of the legislation is to remind gun owners and firearm owners that you have a responsibility to keep those firearms safely secured if you decide to own one.  And when you are negligent in that responsibility there will be a penalty.  It is not the goal to just criminalize people, but we want them to be aware of their responsibilities if they intend to be gun owners.  … We addressed those and we need specific exclusions because we know people can’t be in control of all situations. Changes to the proposed law will include indemnifying adults whose guns are obtained by minors during robberies.”

NEW MEXICO GUN OWNERSHIP, GUN VIOLENCE EXAMINED

New Mexico’s firearm ownership and fatality rate is among the nation’s highest.  In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% percentage points higher than the national average according to the think tank Rand Corp.

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.

The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. 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 115 homicides as of December 3, 2022.

It has also been reported that there have been more APD police officer shootings in 2022 than during any other year before.  In 2022, there were  18 APD Police Officer involved shootings,10 of which were fatal.  In 2021 there were 10, four of which were fatal.

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.

Links to quoted news sources are:

https://www.volunteerworld.com/en/review/travellers-worldwide

https://www.kob.com/new-mexico/new-mexico-lawmakers-to-propose-gun-safety-bills/

https://www.kob.com/new-mexico/apd-stats-show-increase-in-shootings-with-police/

https://www.abqjournal.com/2556861/gun-safety-bills-could-spark-debate-at-roundhouse-amid-rise-in-firearm.html

ALBUQUERQUE JOURNAL GUN CONTROL POLL

From August 31 through to September 3, the Albquerquerqu Journal published a series of front-page articles of a poll conducted primarily for the 2022 midterm election.  One report covered the gun control measures.  On  September 4, the Journal published poll results on two-gun control proposals.  Both proposals received overwhelming bi partisan support.  The poll questions and results were as follows:

DO YOU SUPPORT OR OPPOSE LEGISLATION IN NEW MEXICO TO RAISE THE AGE FROM 18 TO 21 TO PURCHASE AN AR-15 STYLE SEMI-AUTOMATIC RIFLE?

Support: 72%

Oppose:  21%

It depends: 4%

Don’t know/won’t say: 2%

POLITICAL PARTY BREAKDOWN

Democrat Support: 85%, Democrat Opposition: 11%

Republican Support: 53%, Republican Opposition: 35%

DO YOU SUPPORT OR OPPOSE MAKING IT A CRIME IF A PERSON FAILS TO SAFELY SECURE A FIREARM FROM CHILDREN?

Support: 73%

Oppose: 14%

It depends: 10%

Don’t know/won’t say: 3%

POLITICAL PARTY BREAKDOWN

Democrat Support: 81%, Democrat Opposition:  9%

Republican Support: 61%, Republican Opposition: 22%

Other Party Support: 74%, Other Party Opposition: 10%

While Democratic voters were significantly more likely to support the gun control measures, a majority of Republican voters surveyed also expressed support for both proposals. A total of 61% of GOP voters surveyed support making it a crime to fail to store guns safely around children, while 53% of Republicans said they support raising the minimum age to purchase AR-15-style rifles.

COMMENTARY AND ANALYSIS

It is difficult to gage what effect, if any, the passage of “gun safety” measures will have on reducing gun violence and mass shootings.  More realistic proposals that will likely reduce gun violence would be federal laws banning the manufacturing, sale or distribution of AR-15 style semi-automatic rifles.  In the state, gun registration, banning large capacity gun magazines and types of ammunition and mandatory background checks and perhaps repealing the state’s open carry provision in its constitution may reduce gun violence.

ENACT “OMNIBUS GUN VIOLENCE AND GUN CONTROL” ACT

What the 2023 New Mexico Legislature should seriously consider is a more comprehensive approach to gun control and enact an “Omnibus Gun Violence And Gun Control Act”.  Such an act should include sweeping legislation to deal with gun control, gun violence and violent crime in the state.

ENHANCEMENT CRIMINAL SENTENCINGS

The following increases in enhancements should be included in the “Omnibus Gun Violence And Gun Control Act”:

1. Increase the firearm enhancement penalties provided for brandishing a firearm in the commission of a noncapital felony from 3 years to 10 years for a first offense and for a second or subsequent noncapital felony in which a firearm is brandished 12 years.
2. 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, defined as an item or object used to inflict mortal or great bodily harm, in the commission of a noncapital felony with enhanced sentences of 5 years for a first offense and for second or subsequent noncapital felony in which a lethal weapon other than a firearm is brandished 8 years.
3. Enact legislation making it a 4th degree felony punishable up to 18 months in jail for failure to secure a firearm. Gun owners would have to keep their firearms in a locked container or otherwise make them inaccessible to anyone but the owner or other authorized users.
4. Increase the penalty of shooting randomly into a crowded area from a petty misdemeanor to a fourth-degree felony.
5. Allow firearms used in a drug crime to be charged separately.

GUN CONTROL LEGISLATION

The “Omnibus Gun Violence And Gun Control Act”  should include the following gun control legislation:

1. Call for a constitutional amendment to repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby.
2. Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
3. Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
4. Review additional bail bond reforms and statutorily empower judges with more authority and more discretion to hold and jail those pending trial who have prior violent crime convictions.
5. Institute mandatory extended waiting periods to a month for all sales and gun purchases.
6. Implement in New Mexico mandatory handgun licensing, permitting, training, and registration requirements.
7. Ban the sale in New Mexico of “bump-fire stocks” and other accessories.
8. Provide more resources and treatment for people with mental illness.
9. Limit gun purchases to one gun per month to reduce trafficking and straw purchases.

KEEPING FIREARMS OUT OF THE HANDS OF CHILDREN

Given the severe increase of murders of children at the hands of children, the “Omnibus Gun Violence And Gun Control Act” needs to include provisions directed at keeping firearms out of the hands of children and holding adults owner of guns responsible for their guns. Provisions that should be considered are as follows:

1. Currently, you must be at least 19 years old to legally possess a handgun in New Mexico and there is no minimum age to possess rifles and shotguns. Expand the age limitation of 19 to rifles and shotguns,
2. Currently, the unlawful possession of a handgun by someone under age 19 is a misdemeanor carrying a penalty of from 6 months to one year in jail. It should be classified as an aggravated fourth-degree felony mandating a 2-year minimum sentence.
3. Expand the prohibition of deadly weapons from a school campus to school zones.
4. The case of any juvenile arrested possession of a weapon and charged by law enforcement are to be referred the District Attorney for automatic prosecution.
5. Make it a felony, in certain circumstances, if a person recklessly stores a firearm and a minor gains access to it to threaten or harm someone. If a firearm is accessed by a minor and used in the commission of a crime resulting in great bodily harm or death, the person responsible for storing the firearm could be charged with an aggravated fourth-degree felony, carrying a 24 month prison sentence. If a firearm were accessed by a minor and used in the commission of a lesser crime, the person responsible for keeping or storing the firearm could have been charged with a 4th degree felony punishable by up to a 18 months in jail.
6. 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. Legislative funding needs to be provided to accomplish the requirement.

FINAL COMMENTARY

All 7 of the legislative measures introduced in the 2023 New Mexico State Legislature in and of themselves are first good steps to help curb gun violence  but in all likelihood do not even come close to what is actually needed to have an impact on preventing gun violence.  A far more comprehensive approach is what is needed in the form of an “Omnibus Gun  Control Act”.

 

On February 26, 2021, Governor Michelle Lujan Grisham signed a bill repealing the 1969 abortion ban. The 1969 law criminalized abortion to end a woman’s pregnancy except in certain circumstances, such as rape and incest. The 1969 state statute had not been enforced in the state due to the United States Supreme Court’s decision in Roe v Wade in the 1970s, which legalized abortion nationwide. The repeal of the 1969 law was necessitated by the fact the repeated attempts had been made over the years to have the United States Supreme Court reversed the decision of Roe v Wade.

On June 22, 2021 the United States Supreme Court released its decision in the case of Dobbs v. Jackson Women’s Health Organization wherein the Supreme Court  overruled and reversed the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and 50 years of constitutional law precedence ruling  that a woman does  not have constitutionally protected right to an abortion.  The US Supreme Court ruled the authority to regulate abortion was  returned to the individual states and their elected representatives.

As a direct result of the Supreme Court’s Dobb’s decision, abortion and woman’s reproductive rights became a defining issue in New Mexico’s 2022 Gubernatorial race between incumbent Democrat Governor Michelle Lujan Grisham and Republican Mark Ronchetti.  Republican Mark Ronchetti made abortion and imposing limits on a woman’s right to choose a center piece of his campaign and suggested a “reasonable policy” that proposed banning abortion after 15 weeks of gestation, with exceptions for rape, incest, and to preserve the life of the mother.  Ronchetti went so far to call for a constitutional amendment where voters would decide whether abortion should be illegal.

NEW MEXICO COUNTIES AND TOWNS TRY TO INTEFERE WITH WOMEN’S REPDUCTIVE RIGHTS

On November 4, 2022 it was reported that the City Commission of Clovis, New Mexico put off a vote on an ordinance designed to ban abortions within the New Mexico town fearing challenges to the move in a state where the procedure remains legal. Clovis was set to become the first town to pass a so-called “sanctuary city for the unborn”

https://www.reuters.com/world/us/new-mexico-town-delays-banning-abortion-2022-11-04/

On November 8, it was reported that the Hobbs City Commission unanimously passed an ordinance designed to ban abortions, despite the procedure being legal in the state. The so-called “sanctuary city for the unborn” ordinance blocks abortion clinics from operating.  At least one nearby county has approved an anti-abortion resolution.  The ordinance will surely be challenged in court and set aside.

https://www.reuters.com/world/us/new-mexico-city-passes-ordinance-block-abortion-clinics-operating-2022-11-08/

ATTORNEY GENERAL RAUL TORREZ FILES CHALLENGE TO MUNXIPAL AND COUNTY ORDINANCES

On January 22, New Mexico Attorney General Raúl Torrez filed an emergency petition with the New Mexico Supreme Court that challenges the anti-abortion ordinances passed by communities in eastern New Mexico. Torrez is asking the New Mexico Supreme Court strike down the ordinances, arguing they violate civil rights guaranteed by the state Constitution.

The legal challenge was filed as a direct result of the cities of Hobbs and Clovis, and the counties of Lea and Roosevelt passed local ordinances targeting abortion. According to the lawsuit filed the city and county ordinance infringe on the state’s authority to regulate health care.

Democrat Attorney General Torrez contends in the lawsuit that the city and county ordinances misinterpret a 19th-century federal law on the mail and conflict with state law regulating the practice of medicine.  He also argues the ordinances violate the state Constitution’s guarantees to equal rights, liberty and privacy which he said are more robust than what’s outlined in the U.S. Constitution.

Attorney General Raúl Torrez said this during a news conference announcing the filing of the lawsuite:

“In the last several months, Roosevelt County, Lee County, the cities of Hobbs and Clovis have passed ordinances seeking to regulate the provision of health care services, specifically the ability of women in those communities to seek and access reproductive health care. … Local communities are not empowered to regulate medical services. … We need to make it absolutely clear to other communities across the state, which may feel that they have the ability to regulate this kind of health care that they don’t have that right. …   They are not empowered to regulate access to health care. …

This, ladies and gentlemen, is not Texas. In [New Mexico] a woman’s right to choose is guaranteed by the New Mexico Constitution.  We have the ability to provide enhanced rights. … It is simply inappropriate, unlawful and unconstitutional for local governments to use their limited authority to try to create a patchwork of regulations that would deny women access to essential health care services in their community.”

The city and county ordinances vary somewhat but generally aim to ban use of the mail or other interstate carriers to deliver abortion drugs, citing a federal law. The Roosevelt County ordinance provides that it would be enforced by allowing individuals to file civil lawsuits seeking damages of at least $100,000. The private individual lawsuit provision is identical to the State of Texas law that allows private individuals to file lawsuits against doctor’s who perform abortions which are now illegal in Texas.

Democratic state lawmakers have introduced legislation in the 2023 New Mexico Legislative Session that would explicitly prohibit local abortion bans or other discrimination against an individual’s right to health care related to gender. However, the 60-day session just began on January 17, an no action on the legislation has taken place as of yet.   Torrez said his petition does not hinge on the outcome of state legislation. The state Supreme Court, he said, is already empowered to interpret the Constitution and evaluate the abortion ordinances.

REACTIONS TO ATTORNEY GENERAL LAWSUITE

Republican Roosevelt County Commissioner Rodney Savage said he believes the county ordinance is on sound legal footing. Savage told the Albuquerque Journal this:

“It’s being litigated, we have a difference of opinion, and the courts will have to decide. ”

Roosevelt County attorney Michael I. Garcia said the county will respond in court to the attorney general’s petition. Garcia said this:

“In the meantime, I prefer not to speculate about litigation while it’s in the process.”

Hobbs Mayor Sam Cobb said the ordinance in his city was thoroughly analyzed in public meetings and supported by city residents. Mayor Cobb said this:

“The Ordinance does not ban abortions or abortion clinics in Hobbs. … I would invite anyone that has heard otherwise to read the Ordinance in detail.”

Links to quoted news sources are here:

https://www.koat.com/article/new-mexico-abortion-ban-challenged-by-attorney-general-raul-torrez/42627345

https://www.kob.com/new-mexico/ag-raul-torrez-sues-state-counties-cities-over-abortion-ordinances/?utm_source=zetaglobal&utm_campaign=thumbnails&utm_medium=onsite

https://www.abqjournal.com/2567053/ag-torrez-challenges-legality-of-local-abortion-bans.html

CODIFYING ABORTION RIGHTS

As a consequence of New Mexico towns attempting enact legislation to restrict and prohibit a woman’s access to abortion, Democrat lawmakers are looking at enacting abortion rights and access to reproductive health care legislation in the 2023 legislative session.   The legislation includes codifying abortion rights into state law, investing in telehealth and clinics that provide reproductive health care, and protecting providers or patients who travel to New Mexico to escape restrictions in other states.

On January 17,   it has been reported that a “Reproductive Health Care Protection Act”  will  be  introduced  and sponsored by Democrats Representative  Linda Serrato, D-Santa Fe, and  Senator  Linda Lopez, D-Albuquerque.  Serrato and Lopez both said the legislation is  based on an Executive Order Governor Michelle Lujan Grisham issued in August declaring “abortion is an essential part of reproductive health care and must remain legal, safe and accessible” and expanding access to reproductive health care services in the state.

Under the proposed legislation, local governments across New Mexico would be prohibited from placing restrictions on abortion access.  A companion initiative aims to protect doctors who perform abortion and patients from harassment and investigations by out-of-state interests. State Senator Linda Lopez said in a statement that she will sponsor a bill that will  provide accountability for organizations that share personal medical information related to reproductive health care.

Senate Majority Leader Peter Wirth of Santa Fe said the initiatives are a direct response to the City of Clovis and the Hobbs County Commission actions.  Senator Wirth said this:

“[The goal] is to “prohibit public bodies, including local municipalities, from denying, restricting or discriminating against an individual’s right to use or refuse reproductive health care, or health care related to gender. ”

The legislation will focus at least in part on improving telehealth infrastructure and perhaps building clinics to provide a spectrum of pregnancy and reproductive health care services.  According to Representative Serrato, some patients in rural parts of  New Mexico are forced to  travel for hours to Santa Fe or Albuquerque for pregnancy-related care.

Representative  Micaela Lara Cadena, D-Mesilla, said New Mexico families need access to a full spectrum of health care, ranging from pregnancy services to behavioral health programs. Cadena said this:

“Abortion is health care … and part of the way we get there is making sure we meet the full needs of our familias without shame or stigma.”

REPUBLICAN OPPOSITION

Republicans are already gearing up to oppose any efforts by Democrats to protect a woman’s right to choose and to expand woman’s health care rights in the state. Republican lawmakers and candidates are proclaiming Democrats are going too far.  They argue that New Mexico voters will support some of the abortion restrictions imposed in other states, such as parental notification for minors.

Republican Elephant Butte State Senator Crystal Diamond said this:

“Although many New Mexicans do not oppose abortion altogether, it’s clear that most support reasonable limits and protections for women and children.  The Democrats’ plan to expand abortion access for minors and women from out of state is completely out of touch. … Now that the U.S. Supreme Court has returned the issue of abortion to the states, New Mexico legislators must prioritize the voices of their constituents over the demands of special interest groups and the multi-million-dollar abortion industry.”

Links to quoted news sources are here:

 https://www.santafenewmexican.com/news/legislature/proposed-bill-aims-to-protect-abortion-access-in-new-mexico/article_c43af694-9352-11ed-a463-5b5fd4045b77.html

https://www.abqjournal.com/2557259/nm-lawmakers-prepare-for-debate-on-abortion-rights-in-2023-session-exce.html

https://www.abqjournal.com/2563994/reinforcing-rights.html

https://www.kob.com/new-mexico/albuquerque-metro/new-mexico-lawmakers-seek-to-prohibit-local-abortion-bans/

https://www.reuters.com/world/us/new-mexico-democrats-fight-towns-abortion-ban-2023-01-14/

JOURNAL POLL ON ABORTION

On Tuesday,  August 29, the Albuquerque Journal published the results of poll taken on the issue of abortion rights for the November 2022 general elections.  The link to read the full unedited Journal column is here:

https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.html

The Journal poll is extremely revealing in that it breaks down the results not only as to party affiliation but also as to regions of the state.

The poll asked the question “WHICH COMES CLOSEST TO YOUR VIEW ON ABORTION” The results were as follows:

It should always be legal:  35%;  It should be legal with some limitations: 22%; It should be illegal except for rape, incest, or to save the mother’s life: 25%;  It should always be illegal: 12%; Don’t know: 2%; None of these/won’t say: 4%

POLITCAL PARTY BREAKDOWN

The poll results were broken down according to party affiliation. The responses to the poll question by party affiliation were as follows:

It should always be legal:   Democrats,  55%, Republicans: 8%, Other: 35%

It should be legal with some limitations:  Democrats,  24%,  Republicans: 18%, Other: 26%

It should be illegal except for rape, incest, or to save the mother’s life:

Democrats, 11%, Republicans, 41%, Other: 28%It should always be illegal:  Democrats, 5%, Republicans,  24%, Other: 8%

REGIONAL POLL RESULTS

The poll results were broken down according to geographical regions. The responses to the poll questions were as follows:

ALBUQUERQUE METRO REGION

It should always be legal: 33%; It should be legal with some limitations: 23%; It should be illegal except for rape, incest, or to save the mother’s life:26%; It should always be illegal: 11%

NORTHEAST/NORTH CENTRAL REGION

It should always be legal: 39%; It should be legal with some limitations: 22%; It should be illegal except for rape, incest, or to save the mother’s life: 18%; It should always be illegal: 14%

LAS CRUCES/SOUTHWEST REGION

It should always be legal: 44%; It should be legal with some limitations: 30%; It should be illegal except for rape, incest, or to save the mother’s life: 12%; It should always be illegal: 8%

EASTSIDE REGION

It should always be legal: 27%; It should be legal with some limitations: 15%, It should be illegal except for rape, incest, or to save the mother’s life: 42% ; It should always be illegal: 15%

GENERAL POLL ANALYSIS

New Mexico voters are 3 times more likely to say abortion should always be legal than they were to say it should always be illegal.  According to the poll, 35% of statewide voters surveyed said abortion should always be legal, 22% said the procedure should be legal, for a combined total of 57%.

The poll found that 25% felt there should be some limitations and said it should be illegal except in cases of rape, incest or when a mother’s life is in danger.  Just 12% of voters surveyed said abortion should always be illegal, while 4% would not say and 2% said they did not know.

According to the Journal poll results, Democrats are firmly behind a woman’s right to choose with 55% of Democrats saying abortion should always be legal and 24% of Democrats said it should be legal with some limitations for a whopping 79% combined percentage.

Republicans’ opinion are dramatically opposite with 8% saying abortion should always be legal, while 24% said it should be banned and 41% said it should be illegal with exceptions for cases of rape, incest and to save a mother’s life, with a 65% combined total to make it illegal or illegal with the exceptions of rape, incest or threat to the life of the woman.

The difference by party affiliation shrinks to a 6% difference when it comes to how voters they felt if abortions should be legal with some limitations.  Interestingly, more Democrats, 24%, felt that there should be some limitations while fewer Republicans, 18%, felt there should be some limitations.

The Journal Poll did not find a big difference in attitudes on abortion between New Mexico voters based on their gender, ethnicity and age.  There was little difference in voters’ views on abortion based on their education level with one exception, voters with graduate degrees were far more likely than other groups of voters to say abortion should always be legal.

REGIONAL ANALYSIS

With respect to the regional poll analysis, it’s somewhat of a surprise to note that it is the Las Cruces/Southwest area that had the highest approval of any region in the state that supported abortion without limits with a full 44%, while the Albuquerque Metro Region supported abortion without limits at 33%.

The Southern area of the state is widely considered a conservative part of the state,  excluding the progressive Las Cruces, while the Albuquerque Metro area is considered more progressive.  One explanation for the 11% difference between the regions is that more conservative Valencia and Sandoval were included and skewed the results.

Not at all surprising is that the Progressive Northeast/North Central Region of the state had the highest percent of support saying abortion should always be legal with 39%.  Also not surprising is that in the very conservative Eastside region, 42% said that abortion should   be illegal except for rape, incest, or to save the mother’s life, and 15% said it should always be illegal.

The link to read the full unedited Albuquerque Journal poll column is here:

https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.htm

COMMENTARY AND ANALYSIS

THE ATTORNEY GENERAL ACTION

Attorney General Raúl Torrez did not specifically say it, but his 27 page law suite is essentially a “Declaratory Judgment” action filed in the New Mexico Supreme Court to set aside the municipal and county ordinances and have them declared unenforceable and unconstitutional.  Normally, such actions are filed in State District Courts in the counties where such laws are enacted.  The problem is the local city and county attorneys arguably would be the more appropriate authorities to file such actions, but are conflicted out and likely recommended enactment of the ordinances by their respective legislative bodies.

Now that the petition is filed the New Mexico Supreme Court, the court   can accept or deny the petition.  If accepted, those counties and cities that enacted the ordinances can defend them in the Supreme Court and the  Attorney General’s office can respond and simply seek that the ordinances be set aside. The problem is that the Attorney General  action  is an extraordinary action.  The New Mexico Supreme Court has sole discretion and it could simply refuse to accept it and dismiss it on its own.  If it does accept to hear the case, it may not occur for months. Its more likely than not that the New Mexico Supreme Court will take a wait and see approach and let the 2023 New Mexico Legislature tackle the issue given all the pending legislation.

LEGISLATURE NEEDS TO ACT NOW

Governor Lujan Grisham and Democrats in general campaigned heavily on safeguarding abortion rights and woman’s reproductive rights. Republicans on the other hand ignored and are totally out of touch with just how strongly people feel about the issue.

New Mexico Republicans have every intent to do what they can to deprive a woman of their right to choose and to deprive a woman from making her own decision on reproductive rights.  Simply put, no person, no candidate, no elected official, no voter and no government has any right telling a woman what she must do when it comes to abortion and what she must do when it comes to her own body.

Democrats in the 2023 legislative session hold a 45-25 majority in the House and a 27-15 edge in the Senate.  Democrats would be damn fools not to deliver on their promises to protect a woman’s right to an abortion and access to reproductive health given the attempts by some Republican controlled municipalities and counties in the state to do whatever they can to make abortion illegal or inaccessible to woman.

The links to relied on news source material are here:

https://www.santafenewmexican.com/news/legislature/proposed-bill-aims-to-protect-abortion-access-in-new-mexico/article_c43af694-9352-11ed-a463-5b5fd4045b77.html

https://www.abqjournal.com/2563994/reinforcing-rights.html

https://www.kob.com/new-mexico/albuquerque-metro/new-mexico-lawmakers-seek-to-prohibit-local-abortion-bans/

https://www.reuters.com/world/us/new-mexico-democrats-fight-towns-abortion-ban-2023-01-14/

On January 17 MAGA Republican election denier and failed candidate Solomon Peña was arrested in connection with 4 shootings at the homes of Democrats Bernalillo County Commissioner Adriann Barboa, former Bernalillo County Commissioner Debbie O’Malley, and Speaker of the House Javier Martínez. It is alleged that he is the “mastermind” behind the shootings and that he conspired with and paid at least 4 other men to carry out the shootings and that he himself participated in one of the shootings.

On January 18, Solomon Peña faced Metropolitan Judge Jill Martinez over video and was seen in the court video dressed in a red jumpsuit with handcuffs. Peña did not say anything during the short preliminary hearing.  The Bernalillo County District Attorney’s Office successfully argued for Peña to be held without bail until a detention hearing. Peña  is represented by Albuquerque Attorney Roberta Yuric.

NEWS UPDATE: DISTRICT JUDGE RULES PEÑA TO BE HELD BEHIND BARS  WITHOUT BAIL UNTIL TRIAL

In a detention hearing held on January 23, State District  Court Judge David Murphy ordered Solomon Peña to remain behind bars without bail until trial. The Arnold tool suggested Peña could be released on his own recognizance.

The Bernalillo County DA’s Office  pushed for Peña to be held behind bars until trial, arguing the evidence of the case and Peña’s prior criminal history indicate there are no conditions of release that would ensure the community’s safety. Deputy District Attorney Natalie Lyon argued “Shortly after his release from conditions of probation, he’s working with other people to commit these violent acts toward elected officials.”  Peña’s defense in part argued that he has no history of violent crimes, crimes with firearms or crimes with drugs. Peña’s attorney Roberta Yurcic argued “For seven of those years your honor, [Peña] was out in the community and had no contact with the criminal justice system.”

Bernalillo County District Court Judge David Murphy decided that Peña will stay in jail through trial. Second Judicial District Judge David Murphy found that Pena presents a danger to the community and that no conditions of release could be fashioned that would ensure public safety.  Following the  pretrial detention hearing, Judge Murphy ruled :

“Based on the nature and circumstances of the charges, as well as defendant’s own history as a convicted felon, and the allegations of possession and use of an assault rifle, as well as the allegation that he has provided firearms to his conspirators, I do find the state has met its burden there.”

The Arnold tool suggested Peña could be released on his own recognizance but Judge Murphy said the tool is “merely a tool.”

Peña is facing 15 charges in the case that’s received national attention.

https://www.krqe.com/news/crime/judge-to-decide-if-solomon-pena-stays-behind-bars-until-trial/

https://www.kob.com/new-mexico/judge-orders-former-gop-candidate-be-held-until-trial/

https://www.abqjournal.com/2567016/solomon-pena-ordered-to-remain-in-custody-pending-trial.html

APD CHIEF HAROLD MEDINA  SHOOTS BIG MOUTH OFF 

In a truly remarkable example of pure political opportunism at its worst, APD Chief Harold Medina took the opportunity to again open his big mouth to declare our criminal justice system is broken and to attack the courts.  He declared the courts are responsible for our high crime rates and blasted the use of a judicial assessment tool that recommended that Peña could be released with bond pending trial.

Medina reacting to the arraignment proceedings of Solomon Peña pointed his pudgy little finger at the entire criminal justice system over the city’s high crime rate and said this:

“Yet another example that shows why the criminal justice system is broken. Prosecutors will recommend that the suspect in these shootings be held in jail until trial. But a judicial assessment recommends the suspect should be released, even though he is a convicted felon who served time in prison for committing more than a dozen felonies. This suspect is alleged to have hired hitmen to shoot up elected officials’ houses with life-threatening gunfire. While I realize the judicial assessment is just one tool that judges can consider, I believe that tool is fatally flawed. How can we require judges to use this broken tool? We need to fix this process so the public will have faith that we are keeping the community safe from dangerous criminals.”

The glaring falsehood of Medina’s remarks is the judicial assessment tool known as the “Arnold Rule” Public Safety Assessment tool (PSA) is not at all mandatory nor a “required tool that is fatally flawed” as Medina stated.  Judges can give it whatever weight they want to give it and even totally ignore it if they choose. It is nothing more than a recommendation that can or cannot be followed.

The Courts discretion has not been usurped by the Arnold rule.  Under the law, the prosecution has the burden of proof in to make the case that a defendant charged with a violent crime is too dangerous to release from jail pending trial and there are no reasonable conditions of release to protect the public. When it comes to Solomon Peña, the judicial system is working, he is in jail and yet Medina felt compelled to say something.

The postscript to this blog article provides and explanation on the Arnold Public Safety Assessment Tool and how it works.

NOT THE FIRST TIME

This is not the first time that Medina has taken to the media and  aim at the court’s releasing someone accused of a crime until trial.  It was on March 22, 2022 that Medina and APD engaged in an orchestrated effort to disparage the reputation of Second Judicial District Judge Stan Whitaker who approved the release pending trial of Defendant Adrian Avila on strict conditions, including GPS monitoring and a curfew. After an evidentiary hearing, 2nd Judicial District Judge Stanley Whitaker ruled that prosecutors had credible evidence to charge Adrian Avila for the crime of murder, but prosecutors did not prove “no conditions of release could protect the community.”

Whitaker’s decision  drew immediate sharp criticism from APD Chief Harold Medina and APD  took to social media the vilify Judge Whitaker. APD Chief Harold Medina had this to say during a TV interview:

“These people are accused of killing somebody and we’re counting on an ankle bracelet to protect the community. … [Adrain Avila is] at the root of gun violence. … [His release is] ridiculous.”

https://www.kob.com/albuquerque-news/albuquerque-teen-accused-of-2-murders-released-with-gps-ankle-monitor/6425548/?cat=500

On March 22, APD posted on its TWITTER  and FACEBOOK accounts a photo of Defendant Adrian Avila with the text saying in part about the pretrial release using the Arnold Rule:

“A judge released a murder suspect from jail today on an ankle monitor. … This is beyond upsetting. This jeopardizes the safety of our community, including our officers.”

Within a few  days APD’s FACEBOOK post had over 2,200 overwhelmingly “angry emoji” reactions, over 1,900 shares and over 718 comments. The overwhelming majority of the comments were negative, derogatory and very personal attacks on Judge Stan Whittaker.

ARNOLD TOOL TO GET SENATE JUDICIARY COMMITTEE SCRUTINY

The arrest of Solomon Peña  for the 4 politically motivated shootings in Albuquerque has quickly resulted  in debate during the 2023 Legislative session over whether to make it easier to hold more defendants in custody as they await trial. Citing the Solomon Peña shooting case, Las Cruces area Democrat Senator Joseph Cervantes, renewed his opposition to  rebuttable presumption in  pretrial detention but called for broader scrutiny of how courts are using the public safety tool for pretrial release.  Senator Cervantes is a seasoned and highly respected trial attorney and  is the chairman of the powerful Senate Judiciary Committee and he opposes the “rebuttable presumption” standard  to deny bail.

Cervantes praised the decision of a Metropolitan Court  Judge Jill Martinez  to keep in custody Solomon Peña until a full detention hearing can be held.   Cervantes said the Solomon case is evidence that judges already have the discretion they need to hold defendants in jail when it’s appropriate as they await trial.

However, Cervantes  took issue with the Public Safety Assessment (PSA) tool, also know as the “Arnold Tool”,  being used by the courts as an excuse in their decision making to release a defendant pending trial.  Cervantes said the public safety assessment tool has not recommended the highest levels of supervision if the defendant were released. Cervantes told his senate colleagues:

“The judge is doing the appropriate thing here [with  Solomon Peña] … we’ll be looking for that same level of protection for all New Mexicans, not just elected officials. … The Arnold Tool is just like any other computer program and we all know the ‘garbage in, garbage out’ phrase. It would seem very clear the Tool is being used to make recommendations for a lot of individuals being released that shouldn’t be. Seventy-five percent (of those charged) with murder in Albuquerque in 2021 were recommended to be released. The Arnold Tool can also be used as an excuse for why certain individuals have been released and why they’re committing horrible murders while they’re on release. There is an argument being made that the Arnold Tool really serves very little purpose because all it does really is aggregate information that the judge would already have.”

https://www.kob.com/new-mexico/new-mexico-to-reevaluate-risk-assessment-tool-for-pretrial-release/?utm_source=zetaglobal&utm_campaign=thumbnails&utm_medium=onsite

https://www.kob.com/new-mexico/judge-orders-former-gop-candidate-be-held-until-trial/

https://www.koat.com/article/legislators-pretrial-detention-hearing-process/42613796

Cervantes also spoke out against the introduced legislation that would create a “rebuttable presumption” of dangerousness for defendants charged with certain violent crimes and they be held without bond pending trial.  The aim of rebuttable presumption proposals is to make it easier for more defendants to be held in custody before they’ve been convicted and to keep them from committing new crimes. Proponents of rebuttable presumption say it will reduce violent crime.  Opponents of rebuttable presumption say courts can already keep a defendant in jail if there’s no other way to protect the public.

Artie Pepin, director of the state Administrative Office of the Courts, disputed  Senator Cervantes contention.  He said the Arnold Tool simply recommends the level of supervision if a judge determines the defendant can be released before trial. It’s up to a judge, he said, to determine whether release is appropriate. Pepin said this:

“Researchers have validated that the [Arnold Public Aafety Assessment Tool] reliably gauges the likelihood of whether the person will return to court for future hearings and remain arrest-free.”

https://www.abqjournal.com/2566122/influential-nm-senator-calls-for-scrutiny-of-pretrial-detention-tool.html

BAIL BOND REFORM

It was on November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote. The final vote was 87.23%, with 616,887 voting YES and 12.77%, with 90,293 voting NO. The constitutional amendment largely eliminates the former system of money bail bonds. Before passage of the amendment, a defendant’s bail and release from jail pending trial on charges could be denied for the following 3 reasons:

1. Only for a defendant charged with a capital felony, or
2.  A defendant has two or more felony convictions or
3.  A defendant is accused of a felony involving the use of a deadly weapon if the defendant has a felony conviction in New Mexico.

https://votesmart.org/elections/ballot-measure/2076/a-joint-resolution-proposing-an-amendment-to-article-2-section#.XNyEJo5KiUk

https://ballotpedia.org/New_Mexico_Changes_in_Regulations_Governing_Bail,_Constitutional_Amendment_1_(2016)

The constitutional amendment allows the courts to deny pretrial release to defendants charged with a felony only if a prosecutor proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. The amendment also prohibits the courts from denying pretrial release for defendants who are not considered dangerous and do not pose a flight risk. The change was viewed as necessary to prevent low-level defendants from being kept in jail because they lacked money to post bail.

CHIEF JUSTICE URGES LAWMAKERS TO BALANCE PUBLIC SAFETY WITH RIGHTS OF THE ACCUSED

On January 25, New Mexico Supreme Court Justice Shannon Bacon cautioned the legislators  on the need to balance the rights of accused persons while protecting the public safety. She noted New Mexico voters overwhelmingly approved a constitutional amendment in 2016 that largely abolished the system of money bail bonds. She said the old bond system resulted in most criminal defendants being free until trial.

Bacon said told legislators this:

“We all feel deep sorrow and fear when we read about a senseless death and other tragedies as a result of crime, … Yet we must remember why our Constitution protects the rights of every person, including those accused of crime. … With the elimination of money bail, judges now have the ability to assess dangerousness. … In Bernalillo County, this has resulted in the detention of over 3,000 defendants pending trial – something that could not happen before with the bail bond system.”

https://www.abqjournal.com/2567402/chief-justice-tells-lawmakers-to-balance-public-safety-with-rights-of-the-accused.html

DISTRICT ATTORNEYS OBJECT TO BAIL BOND REFORM

District Attorneys throughout the state argue the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, make it way too difficult for them to do their jobs and prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial. As crime rates increased judges were accused of allowing “catch and release of violent felons”.

Prosecutors and law enforcement across the state repeatedly slam judges and the court system for letting out those accused of violent felonies, particularly when they re-offend. They know damn well that judges are bound by the Code of Judicial conduct and no judge can comment and defend themselves on any pending case or even make any kind of an attempt to publicly defend themselves in the court of public opinion.

 https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.

REBUTTABLE PRESUMPTION AGAIN INTRODUCED

Governor Michelle Lujan Grisham made “rebuttable presumption against release” a part of her anti-crime legislation that she placed on the 2022 legislative 30-day short session.  She supported  “rebuttable presumption against release” in crimes including first degree and second-degree murder, voluntary manslaughter, and sexual exploitation of children. Governor Lujan Grisham has again made passage of “rebuttable presumption legislation a priority in the 2023 legislative session with legislation already introduced.

LFC REPORT DISCREDITS REBUTABLE PRESUMPTION

It was last year on January 20, 2022 the powerful Legislative Finance Committee released a 14-page memo analysis of the proposed “rebuttable presumption of violence” legislation for  pretrial detention. The report was also a status update on crime in Bernalillo County, law enforcement and bail reform.

LFC analysts found that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial. The LFC report called into serious question if violent crime will be brought down by using a violent criminal charge to determine whether to keep someone accused of a crime in jail pending trial.

According to the LFC report, rebuttable presumption is “a values-based approach, not an evidence-based one.” The LFC report said  that while crime rates have increased, arrests and convictions have not. It goes on to say the promise of “swift and certain” justice has a more significant impact on crime rates that rebuttable presumption does not.

The LFC memo states in pertinent part:

“Research shows the certainty of being caught is a more powerful deterrent to crime than severity of punishment. … For the criminal justice system, this means it is important to prioritize solving crimes and securing convictions, particularly for serious offenses… Neither arrests nor convictions have tracked fluctuations in felony crimes, and in 2020 when felonies began to rise, accountability for those crimes fell.

…
“Albuquerque’s violent crime rate rose by 85% from 2012 to 2017 and has since remained stuck at a persistently high level. … Over the same time period, arrests for violent offenses rose by only 20%, resulting in a widening accountability gap for the most serious offenses. Closing this gap should be the key legal goal for APD and the 2nd Judicial District Attorney’s Office.”

The LFC memo states that the percentage of cases that ended with a conviction in 2011 was 80% compared to 59% in 2020. The LFC memo did say the conviction rate deduction could be partly explained by the implementation of case deadlines or bail reform, which resulted in fewer plea deals since people were not being held in jail and had less incentive to enter a plea in a case. According to the report:

“Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution.

In 2022, a substitute crime bill was enacted and signed into law by the Governor. The crime bill as enacted expands surveillance of criminal defendants as they await trial with 24-hour monitoring of ankle-bracelet tracking devices. It mandates the courts to provide greater supervision of defendants by requiring courts to share ankle monitoring data with law enforcement agencies upon request. It requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charge defendant awaiting trial from committing another crime. The goal of the GPS monitoring is keep close tabs on a charged defendant to prevent them from committing another crime.

https://www.abqjournal.com/2471031/tax-cuts-crime-package-sent-to-governor.html

The 2023 Rebuttable Presumption Bill has been referred to the Senate Health Committee, the Senate Finance Committee and the Senate Judiciary Committee. The fact it has been referred to the 3 Senate Committees make it highly unlikely it will pass and that it is on to an early defeat.

ANALYSIS AND COMMENTARY

The criminal justice system is only as good as those responsible to make it work.

MEDINA NEEDS TO KNOCK IT OFF AND DO HIS JOB

When stakeholders such as APD Police Chief Harold Medina  say the criminal justice system is broken, they are refusing to admit they are part of the problem. They are failing to do their jobs in an effective, competent manner endangering public safety.

Our criminal justice system is not broken as Chief Medina wants everyone to believe. Simply put, his allegation is a pathetic diversion from Medina’s own poor job performance.  It is APD Chief Harold Medina that  has been a failure as Chief in performing his own job duties. Medina has done nothing as Chief to curtail the city’s gun violence but shoot off his big mouth about the criminal justice system being broken.

The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. 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 115 homicides as of December 3, 2022.

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.

It has also been reported that there have been more APD police officer shootings in 2022 than during any other year before.  In 2022, there were  18 APD Police Officer involved shootings,10 of which were fatal.  In 2021 there were 10, four of which were fatal. Chief Medina recently announced only now APD is trying to figure out how to reduce police shooting under the DOJ reforms.

APD Chief Harold Medina needs to knock it off with his ongoing criticism of the court’s, especially his nonsensical, false accusation that it’s the Court’s that are responsible for our high crime rates.

CRIMINAL JUSTICE SYSTEM NOT BROKEN

The glaring defect of  “rebuttable presumption” is that it undermines and is an affront to the most basic constitutional right guaranteed by the United States constitution which is the presumption of innocence until proven guilty “beyond a reasonable doubt”. Further, in our criminal justice system, both state and federal, it is the prosecution that has the burden of proof to present evidence to convict a person. The rebuttable presumption shifts the burden of proving dangerousness from the prosecution to the defendant accused of certain crimes to show and convince a judge that they should be released on bond with conditions of release pending their trial on the charges.

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.html

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. The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed. It is way too easy to declare the system “broken” when problems identified within the criminal justice system would go away if the stakeholders would just do their own jobs and concentrate on doing their jobs in a competent manner.

The Public Safety Assessment tool and the Arnold Metric the courts use to apply it should never be a replacement for sound judicial discretion. The PSA reports should not be a “crutch” used by Judges who simply want to use it to avoid making controversial decisions. The PSA reports cannot provide a 100% accurate report as to whether a defendant poses a safety or flight risk, that is why it is not mandatory and allows for judicial discretion. Judges need to rely upon their common sense, their own perception of a defendant and use their judicial discretion to keep the public safe and ensure due process of law and justice is also served.

In the context of “rebuttable presumption of being violent” to hold an accused pending trial, it would be wise to remember the words of Benjamin Franklin:

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”Links to quoted news sources are here:

https://www.volunteerworld.com/en/review/travellers-worldwide

https://www.kob.com/new-mexico/new-mexico-lawmakers-to-propose-gun-safety-bills/

https://www.kob.com/new-mexico/apd-stats-show-increase-in-shootings-with-police/

https://www.abqjournal.com/2556861/gun-safety-bills-could-spark-debate-at-roundhouse-amid-rise-in-firearm.html

_____________________________

POSTSCRIPT

THE ARNOLD RULE IS PUBLIC SAFETY ASSESSMENT TOOL

The “Arnold Rule  is a matrix tool used by the courts  identifying those factors that are considered in holding an accused pending trial. It is a Public Safety Assessment (PSA) tool. Several studies have shown the Arnold Tool has an impressive success rate and the state’s pretrial detention system is, in general, effective in most cases. It’s the exception and not the rule that has proven problematic for the courts when it comes to public perception.

ROLE OF THE JUDICIARY

It is Judges who are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.

Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.

“Judges place a priority on two considerations when making pretrial release or detention decisions:

1. Whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court.
2. If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.

It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

PUBLIC SAFETY ASSESSMENT TOOL

When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail.

Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.

Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.

The Arnold Rule Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.

The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.

Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.

RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL AUTHORITY OR DISCRETION

The Arnold Rule PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.

While the Arnold Rule PSA can be a helpful informational tool, it is important to remember that judges always have the final say in every decision. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.

THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED

The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:

1. Whether the current offense is violent.
2. Whether the person had a pending charge at the time of the current offense.
3. Whether the person has a prior misdemeanor conviction.
4. Whether the person has a prior felony conviction.
5. Whether the person has prior convictions for violent crimes.
6. The person’s age at the time of arrest.
7. How many times the person failed to appear at a pretrial hearing in the last two years.
8. Whether the person failed to appear at a pretrial hearing more than two years ago.
9. Whether the person has previously been sentenced to incarceration.

RISK SCORES PRODUCED

Using the information gleaned for the 9 factors and applying them to a charged defendant, the“Arnold Rule” PSA produces two risk scores:

First, it predicts the likelihood that an individual will commit a new crime if released pending trial.

Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.

The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.

The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.

Links to quoted and relied upon source material are here:

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/wp-content/uploads/2020/12/Frequently-Asked-Questions-About-the-Public-Safety-Assessment-Updated-2-17-2020.pdf

 

On January 4, 2022, the city announced that it will use the future Gateway Center located at 5400 Gibson SE  for temporary winter “emergency shelter”  beginning on January 10.  The location is the former  Gibson Lovelace Medical Center that was acquired by the city last year and that is being remodeled for the Gateway Homeless Shelter.  The January 10 opening will be the first time the city shelters people who are homeless at the site.

According to city officials, emergency overnight space for 50 people, both men and woman, who are now sleeping on the streets or in unauthorized encampments will be made available. The city said the emergency shelter is needed now as an alternative to the existing West Side Shelter where the unhoused are refusing to go.

Outreach teams will be dispatched to locate and identify unhoused from unsanctioned encampments around the city and offer them an indoor place to stay at the location during the coldest months of the year.  The unhoused will be transported to the site in the late afternoon and bused out each morning.

City Officials with the Family And Community Services Department said that the winter emergency shelter effort is totally separate from the “Gateway Center” which is scheduled to open in April or early Spring.  When the Gateway Center finally opens, it will initially have shelter beds for 50 women with services made available to them.

Elizabeth Holguin, deputy director in the city’s Family and Community Services Department,  said this:

“We wanted more options for people in town. … This is simply to help people survive the cold nights, and that’s it.”  

On January 4, the City Council approved a $1.1 million contract with the nonprofit Heading Home to run the emergency shelter through April 3.  Heading Home has also been contracted to operate the Gateway Center when it is scheduled to open in three months.  Outreach teams will work specifically to bring in people from unsanctioned encampments around the city and give them an indoor place to stay during the coldest months of the year.

https://www.abqjournal.com/2562074/old-lovelace-to-open-as-emergency-shelter-ex-opening-next-week-the.html

GATEWAY CENTER OPENED

On January 10, Mayor Tim Keller accompanied Family and Community Services administrators, NM state Senator Jerry Ortiz y Pino and the Heading Home Executive Director announced the limited opening on an emergency basis of the Gibson Health Center as the new Gateway Center homeless shelter.

The city quickly opened homeless shelter in the old Lovelace Hospital only temporarily for a few months to get emergency shelter to the unhoused during the harshest winter months. The temporary emergency shelter will run only until April. The winter emergency beds is effectively a “pilot project” of the Gateway Center until the facility is ready to open more broadly.

The city also announced a 3million dollar donation to the Gateway Center project from Western Sky Community Care. The company provides health insurance to Medicaid, Medicare and the BeWell New Mexico marketplace. The money is expected to address “cultural care aspects” the city says it will rope into services at the Gateway Center. A deputy director with the city’s Family and Community Services Department, Gilbert Ramirez highlighted the urban Native American population as an in-need focus group within the community.

“We know from data our team has collected, about 40% of the unhoused population identifies as Native American, yet out 20% of them can be documented as actually utilizing shelter services in our city. … We’re doing something wrong if we’re not serving everyone.”

The opening represents the city’s first overnight operations of the new Gateway Center.  The current operation has 60 beds with 35 designated for women and 25 for men in separate buildings at the facility.  According Heading Home Chief Executive Officer Steve Decker, the shelter will be full by the end of this month.  The formal opening of the Bottom of Form

Gateway” Shelter will occur this spring with beds for 50 women. Work will continue on primary elements of the shelter.  Other on-site services that will open include a sobering center and a “medical respite” unit for unhoused people recovering from illness and injury.

Unhoused clients must have referrals from service providers and arrived at the shelter in the late afternoon and get bused out each morning. There are no
walk-ins allowed. The center was opened very quickly with only 2 weeks to hire the 25 people needed to run it.  Gateway Center guests are allowed to stay until 8 a.m. the following day after they’ve checked in. Bathrooms, portable showers, personal storage and food is available to overnight guests at the shelter.

Those seeking housing have to be entered into the local “Homeless Management Information System,” known as HMIS. Referrals are made by  the city’s Albuquerque Community Safety Department (ACS), and partner non-profits like First Nations, HopeWorks, or Heading Home’s Street Connect program.  The city announced Friday the referral process is now open to “all” of its providers

Those overseeing referral processes can choose to send people to the city’s new overnight shelter or other programs. So far, the city says it has seen 60% men and 40% women at the Gateway Center. Guests have to be 18 and older, checking in as early at 4:30 p.m.

Gateway administrator Cristina Parajón said this:

“Our team was nimble and able to convert this space, and it will likely remain open until April, until then, [when] we’re able to shift upstairs to the Gateway program. … There will be many members that may want to shift upstairs, as well.”

“Next week outside it’s going to be 21 degrees at nighttime. … We want to ensure we’re doing our best with every facility … These emergency winter beds are about keeping people alive. … Next week, outside, it’s going to be 21 degrees at night time …  The [referral] waiting time … is about 24 hours. … We try to make that as quick as possible, processing those referrals, we do make sure the bed is ready and the linens are there.”

https://www.abqjournal.com/2564544/albuquerques-new-homeless-shelter-gaining-traction.html

https://www.krqe.com/digital-now/albuquerque-opens-first-phase-of-gateway-center-homeless-

Mayor Tim Keller said the city aims to serve “1,000 people a day” at the center for housing and medical related needs. Roughly 300 people are already use the Gateway Center facility, most accessing co-located medical offices.  According to Keller, by April, Keller the city hopes the Gateway Center will help “at least 500 people a day” at the facility. “That’s in combination from our initial 50 beds that are probably going to open early summer, that includes our emergency shelter which is open now.”

Mayor Keller said the city will be asking for funding for the Gateway Center project during the 2023 legislative session.  The city says it will ask for $20 million from the state to continue building out the second phase of the site.

GATEWAY HOMELESS SHELTER

On January 4, 2022, the city announced that on January 10, the Gateway shelter will open for “emergency shelter” use.   Outreach teams will work specifically to bring in people from unsanctioned encampments around the city and give them an indoor place to stay during the coldest months of the year.    The city said the emergency shelter is needed as an alternative to the existing West Side where the unhoused refuse to go.  On January 4, The City Council approved a $1.1 million contract with the nonprofit Heading Home to run the emergency shelter through April 3, and then to operate elements of the Gateway Center for three months after that.

https://www.abqjournal.com/2562074/old-lovelace-to-open-as-emergency-shelter-ex-opening-next-week-the.html

It was on April 6, 2021, Mayor Tim Keller officially announced the city had bought the massive 572,000 square-foot building that has a 201-bed capacity, for $15 million.  Keller announced that the massive facility would be transformed into the Gateway Center Homeless Shelter.

Interior demolition and remodeling of the 572,000 square foot building has been going on for a number of months to prepare the facility for a homeless shelter.  The ABQ Gateway Center will likely to open sometime in the Spring of 2023.  Beds for 50 women are planned for the first phase and for the first responder drop-off is to come online early 2023. The city plans to launch other elements of the 24/7 shelter by next summer.  According to the 2022-2023 approved city budget, $1,691,859 has been allocated for various vendors to operate Westside Emergency Shelter Center.

The city is planning to assist an estimated 300 unhoused and connect them to other services intended to help secure permanent housing. The new facility is intended to serve all populations of men, women, and families. Further, the city wants to provide a place anyone could go regardless of gender, religious affiliation, sobriety, addictions, psychotic condition or other factors.

The city facility is to have on-site case managers that would guide residents toward counseling, addiction treatment, housing vouchers and other available resources.  The goal is for the new homeless shelter to provide first responders an alternative destination for the people they encounter known as the “down-and-out” calls.

The city estimates 1,500 people could go through the drop-off each year. The “dropoff  for the down and outs” will initially have 4 beds.  It is primarily imagined as a funnel into other services.  While that likely will include other on-site services, city officials say it will also help move people to a range of other destinations, including different local shelters, or even the Bernalillo County-run CARE Campus, which offers detoxification and other programs.

The city’s plan is to continue adding capacity, with ultimate plan to have a total of 250 emergency shelter beds, and 40 beds for medical sobering and 40 beds for medical respite beds for a total of 330 bed capacity.  Counting the other outside providers who lease space inside the building, city officials believe the property’s impact will be significant.

The link to quoted news source material is here:

https://www.abqjournal.com/2529657/abq-gateway-center-likely-to-open-some-time-this-winter-ex-mayor-say.html

 COMMENTARY AND ANALSIS

The city efforts to open up the Gateway Center for temporary winter “emergency shelter” is absolutely necessary and commendable. Outreach teams will be dispatched to locate and identify unhoused from unsanctioned encampments around the city and offer them an indoor place to stay at the location during the coldest months of the year.  It will likely save more than a few lives with some of the harshest winter months still ahead.

The one obvious defect of the approach is that the unhoused will be transported to the site in the late afternoon and then bused out the next morning.  It’s an approach that is tantamount to a “catch and release” approach. The onset of Albuquerque’s harsh winter months no doubt will be a major incentive for the chronically homeless, defined as those that have lived on the street for six month or more who suffer from mental illness, to use both the Gateway Way Shelter as well as the city’s Westside Shelter.

In fiscal year 2021 the city spent $35,145,851 and in 2022   $59,498,915 on unhoused services and programs including 2 shelters and subsidized housing. During the city’s Winter months, the city’s outreach is very  successful as is evidenced by how quickly the Gateway Center is filling up.

However, Spring and Summer is likely when the unhoused will want return to the streets.  When the unhoused refuse assistance, the city can do nothing.   Unhoused cannot be forced to take their medications or seek drug treatment.  The city’s outreach and service efforts need to be ongoing to convince the unhoused who take advantage of the temporary  winter shelter that there are indeed better options than living on the streets.

The City needs to offer the Gateway for more than an overnight, “catch and release” overnight  stay program  and do it best to convince  unhoused who use it now to also take advantage of the other services available.

 

On Tuesday, January 17, the New Mexico Legislature kick off its 60 day legislative session. As is the custom, Governor Michelle Lujan Grisham gave the traditional State of the State address outlining her priorities for the session. It was her first in-person State of the State address in 3 years because of the Covid 19 pandemic. During her address, she  challenged lawmakers to forcefully address crime in new ways, reshape the tax code and offer child care to every New Mexico family.

With state revenue to reach a record high of $3.6 Billion or more in surplus revenue, she called for the creation of a new health care agency to move New Mexico closer to “universal health care,” and authorization of new funds for environmental protection and housing.  The Governors  speech also  touched on the topics of the environment and the homelessness

MAJOR INITIATIVES OUTLINED

Among the proposals outlined in the governor’s speech were as follows:

“• $750 tax rebates for every taxpayer, middle-income tax cuts and changes to the tax code to address “pyramiding,” the way gross receipts taxes build on each other when assessed on each step of a longer transaction. Lujan Grisham said she would seek $1 billion in economic relief overall “to help more New Mexicans afford the things they need right now.”

• $10 million for a reproductive health care center in southern New Mexico and the codification of abortion rights in state law. Lujan Grisham campaigned heavily on preserving widespread access to abortion as a foundation of women’s rights and democracy, in the aftermath of the U.S. Supreme Court’s decision last year that overturned Roe v. Wade and left legalization up to the states. Leading Democratic legislators hope to send her a bill that would prohibit restrictions on abortion by local governments and shield patients and abortion doctors from harassment by out-of-state interests.
•  Creation of a New Mexico Health Care Authority to consolidate services in one agency and move the state closer to universal health care. She also called for transparency in drug pricing.
• Providing child care and early childhood education to every family.
• New funds for environmental protection, rural health care and housing initiatives. She proposed $100 million, for example, to help communities affected by the largest wildfire in recorded state history. Environmentalists are renewing efforts to enshrine rights to clean air and water into the state Constitution, while Democratic state Rep. Patricia Lundstrom of Gallup is courting investments in hydrogen-fuel production as a transition away from the burning of fossil fuels in transportation and industry.
• Picking up the full health care premiums of teachers and school employees, and giving them a 4% raise. She also expressed support for extending learning time for students to help boost academic achievement. The governor and leading legislators are proposing a pay raise for state workers and public school educators of at least 4%. Taxpayers would pay for educators’ individual health care premiums under a proposal from the governor.
• New protections against eviction for renters, funding for mobile homelessness response teams and down payment assistance for homebuyers.
• Any number of new gun-control measures, including a ban on the sale of assault weapons, closing a loophole that she said allowed “straw purchases” of guns and penalties for people who don’t store firearms safely away from children. Surging gun violence in Albuquerque and concerns about mass shootings nationwide have spawned proposals for enhanced criminal sentencing and new gun control measures. New bills would ban large-capacity ammunition magazines and apply felony sanctions to ensure guns can’t be accessed by children. Democratic Senate Majority Leader Peter Wirth of Santa Fe has said he will sponsor a bill that bans firearms at all polling locations in response to the fears and frustrations of election workers.

The governor also proposed allowing “victims of gun violence to bring civil suits against firearm manufacturers.”

The links to the quoted news source is here:

https://www.abqjournal.com/2565319/new-mexico-lawmakers-launch-60-day-session-in-busy-capitol.html

https://www.koat.com/article/new-mexico-nm-state-of-the-state-governor-legislature-2023/42535617

PRICE TAG OF SPECIFIC BUDGET PRIORITIES

It was on January 10 the Governor released her proposed 2023-2024 fiscal year budget to the New Mexico Legislature totaling $9.4B in recurring spending, an 11.9% increase from the last fiscal year. The executive recommendation will maintain reserves at 34.9%, among the highest in state history, while increasing investments in priority areas like housing and homelessness, health care and behavioral health, education and child well-being, public safety, and economic development and tax rebates.  The Governors proposed 2023 state budget plan will use the historic state revenue windfall to increase yearly spending by upwards of  $1 billion.  If enacted as outlined, the Governor’s proposed budget would represent a nearly 12% increase in spending compared to the 2022 fiscal year that ends on June 30, 2023.

The “price tag” highlights from the Governor’s proposed budget recommendation include the following:

HOUSING AND HOMELESSNESS

• $25 Million for rental assistance and eviction prevention
• $13 Millionto incentivize development and zoning updates
• $10 Million the state’s Home Ownership Down Payment Assistance Program
• $6 Million for a new comprehensive landlord support program to work directly with landlords to encourage them to use housing vouchers
• $4 Million for “Mobile Homelessness Response Teams” at the Department of Health that would deploy to homeless encampment’s to connect individuals quickly and directly with support services

 HEALTH CARE & BEHAVIORAL HEALTH

• $200 Million to establish the Rural Health Care Delivery Fund to expand health care services and build new hospitals in rural New Mexico.
• $28 Million for the Health Professional Loan Repayment Program
• $10 Million for the New Mexicare senior caregiver support program
• $10 Million for a full-spectrum reproductive health clinic in southern New Mexico.
• $5 Million for additional support for alcohol abuse prevention and treatment
• $32.5 Million for graduate medical education programs across the state
• $7.7 Million for nursing programs at New Mexico’s higher education institutions
• $5.8 Million to maintain existing school-based health centers and expand access to more than 25,000 students

EDUCATION AND CHILD WELLBEING

• $220.1 Million for extended in-classroom learning time by increasing the number of minimum instructional hours per year in public schools
• $30 Million to provide healthy universal school meals and to eliminate school meal costs for every New Mexico child
• $2.9 Million to the Children, Youth and Families Department for 60 new protective services staff, to be supported by additional federal matching funds
• $277.3 Million for continued investments in affordable, high-quality child care
• $131 Million to maintain and expand access to high-quality pre-k education
• $40.4 Million for the continued expansion of early childhood home visiting
• $111.1 Million to provide a four percent salary increase for all school personnel
• $100 Million for health care premium costs for public school personnel
• $157.4 Million for the Opportunity Scholarships

PUBLIC SAFETY

• $100 Million continued law enforcement recruitment funding. In 2022, lawmakers approved $50 million for the fund and the money has already been dispersed in two rounds of funding. The city of Albuquerque has use the money it was given to give $18,000 in longevity pay to police officers with 18 more years of experience, not for recruitment.
• $4 Million for Law Enforcement Survivors Benefits
• $4 Million for Firefighter Survivors Benefits
• $2.2 Million to create two hotshot forest fire crews that could be dispatched to fight to fight wildfires within and without state borders

Economic Development & Infrastructure

• $1 Billion in economic relief through tax rebates
• $128 Millionimproving  water infrastructure improvements in part by improving river flows into Elephant Butte Reservoir
• $146 Million for continued statewide broadband expansion
• $35 Million for Local Economic Development Act funding
• $75 Million for the Land of Enchantment Legacy Fund

 Links to quoted news source material are here:

https://www.governor.state.nm.us/2023/01/10/gov-lujan-grisham-releases-fy24-executive-budget-recommendation/

https://www.abqjournal.com/2563462/governor-calls-for-rebates-tax-cuts-and-increased-school-spending-in-budget-plan.html

https://www.krqe.com/news/politics-government/ahead-of-2023-legislative-session-new-mexico-governor-releases-budget-suggestion/

LEGISALTIVE AGENDA

The Governors legislative agenda has also been reported as follows:

HEALTH CARE & BEHAVIORAL HEALTH

• Expanding and improving rural health care delivery: Establishing the Rural Health Care Delivery Fund, created with a $200 million investment, to provide support for rural health care delivery in parts of New Mexico often underserved by available health care options by providing funds for the establishment of new or expanded services.
• Protecting abortion access for New Mexicans: Codifying abortion rights protections in state statute to ensure access to reproductive health services is safeguarded.
• Expanding access to reproductive health services: Investing $10 million in capital outlay funding for a full-spectrum reproductive health clinic in southern New Mexico.
• Improving access to affordable, high-quality health care: Creating the New Mexico Health Care Authority, a comprehensive entity that will expand access to affordable health care and streamline the government’s efforts to support families and their health care needs while more effectively holding insurers accountable.
• Providing transparency for prescription drug pricing: Requiring licensed drug wholesalers to disclose prices and require Pharmacy Benefit Managers to disclose any increases of more than 40% over a five-year period, or more than 10% in the prior year, as well as the reasons for the increase.

EDUCATION & CHILD WELL-BEING

• Extending in-classroom learning time: Requiring and providing the resources needed for increased educational hours during the school year.
• Supporting special education: Providing extended learning time for students with disabilities, ensuring special education services are data-driven and effective, and increasing supports for special education educators.
• Ensuring teachers keep more of their salaries in their pockets: Covering the individual cost share for health care premium costs for school personnel, a first-of-its-kind initiative for New Mexico.
• Kids Kitchens – Establishing healthy universal free meals for students: Eliminating school meal costs for every New Mexico child. An additional $20 million capital outlay investment will fund school kitchen infrastructure improvements to enable schools to provide healthy and fresh foods for students.
• Attendance interventions: Requiring data-informed school attendance interventions aligned with student needs and expanding drop-out prevention and recovery efforts.
• Specialized Trust Funds: Lawmakers are hope to sock away billions of dollars into specialized trust funds, and use future investment earnings to underwrite programs ranging from smoking-cessation to highway construction and medical school teaching. It’s an investment strategy that has helped sustain public schools in New Mexico for generations through a $26 billion trust, partially sustained by income from oil- and gas-production leases on state trust land.

PUBLIC SAFETY

• Keeping repeat violent offenders off New Mexico streets: Establishing a “rebuttable presumption” to ensure that those accused of murder, gun crimes, rape or other sex crimes do not pose a danger to the community before being released pending trial.
• Addressing the scourge of gun violence: Keeping New Mexico families, communities and businesses safer through a robust tranche of gun legislation, including a ban on the sale of assault weapons, an end to the state loophole on straw purchases of guns, safe storage reforms, and a law allowing victims of gun violence to bring civil suits against firearm manufacturers.
• Tackling organized retail crime: Targeting offenders who fund organized crime through retail theft by creating the crime of organized retail crime in state statute, amending statutory language on robbery and shoplifting to encompass aggregated crimes of theft, and better enabling prosecution of commercial theft.
• Getting more police officers on the streets: Investing an additional $100 million in the Law Enforcement Recruitment Fund to continue supporting the hiring of law enforcement officers to forces across the state.
• Establishing parity in survivors benefits for first responders: Establishing a state fund for survivors benefits for the families of firefighters killed in the line of duty.
• Supporting public safety and government staffing: Amending PERA regulations to 1) allow for PERA retirees to return to work for no more than three additional years after having been retired for a minimum of one year and 2) raise the pension salary maximum to 100% in order to retain qualified personnel.
• Preventing wildfires:  Lujan Grisham hopes to fund the first New Mexico-based corps of elite smokejumper firefighters to ensure a rapid response to future fires. State legislators want to make the state more resilient to climate-related disasters by speeding up the delivery of federal disaster aid and allow small water districts to band together as they rebuild from wildfires.  Providing the executive with the authority to ban the sale and use of fireworks during drought emergencies.
• The Environment: Environmentalists are renewing efforts to enshrine rights to clean air and water into the state Constitution, while Democratic state Rep. Patricia Lundstrom of Gallup is courting investments in hydrogen-fuel production as a transition away from the burning of fossil fuels in transportation and industry.

ECONOMIC DEVELOPMENT & TAX REFORM

• Putting more money in New Mexicans’ pockets: Delivering economic relief through one-time rebates of $750 to each individual taxpayer or $1,500 to couples filing jointly.
• Reforming the state tax code: Supporting New Mexico working families and businesses by enacting tax policy reform, including reducing the gross receipts tax rate by an additional quarter of a percent, implementing anti-pyramiding for professional services in the gross receipts tax rate, and delivering personal income tax progression for middle-class New Mexicans.
• Continuing to support New Mexico’s booming film industry: Updating the New Mexico Film Tax Credit to further incentivize the hiring of more New Mexico residents, promote New Mexico’s diverse locations and cultures, expand productions to additional rural communities, and sustain robust investments in workforce development and job training.
• Protecting and preserving lands for generations to come: Establishing the Land of Enchantment Legacy Fund to create sustained funding for state programs that protect and preserve our environment. Programs that will be supported over the next three to five years through this funding include the River Stewardship Program, Healthy Soils Program and Outdoor Equity Fund.
• Minimun Wage: Democratic legislators want to provide automatic future increases to the statewide $12-per-hour minimum wage.

The links to the quoted news sources are here:

https://www.kob.com/new-mexico/gov-michelle-lujan-grisham-to-deliver-state-of-the-state-address-announces-legislative-agenda/

https://www.koat.com/article/new-mexico-nm-state-of-the-state-governor-legislature-2023/42535617

TYPICAL REPUBLICAN RESPONSE

Not at all surprising Republican lawmakers were highly critical of the Governors speech and as expected whined and complained and said that the governor ignored the states problems and simply offered more government spending.

Senate Minority Leader Greg Baca, R-Belen, said the Governor “glossed over” the serious challenges facing the state including crime, a shortage of doctors and an unfriendly business environment. Baca said the governor promoted renewable energy  but failed to acknowledge the importance of oil and gas production.  He called the governor’s administration “out of touch.”

Baca in particular was critical of the Governor’s ideas on gun control and said gun-control regulations aren’t the solution when the state is failing to keep firearms out of the hands of felons. Baca said this:

“Let’s enforce what we have. … We need a criminal justice system that people don’t look to and laugh at”.

Republican House Minority Leader Ryan Lane, R-Aztec, offered a similar assessment of the governor’s speech and said this:

“Most New Mexicans do not live in the utopia that Lujan Grisham described and Republicans are committed to working to provide meaningful relief and support to New Mexicans.”

COMMENTARY AND ANALYSIS

While hundreds of bills dealing with crime, the economy, public schools and more will be filed during the session, the state’s revenue bonanza will be at the forefront of many Roundhouse debates.  During the 2023 legislative session, there is little doubt that debate will be hot and heavy on how to spend the historic surpluses.

There is indeed a lengthy list on what the surplus can be spent upon. The list includes:

Major infrastructure needs such as roads and major  bridge repair across some of the most rural parts of the state with an estimated cost of $500 million, funding for wastewater projects, dams and acequia projects, the courts, law enforcement and the criminal justice system, funding for our behavioral health care system, job creation endeavors,  economic development programs, funding for the Public Employee Retirement funds to deal with underfunded liabilities and benefits are all likely topics of discussion during the upcoming 2023 legislative session. All merit serious consideration and funding with the historic surplus.

Not at all surprising, some lawmakers have called for spending restraint despite the revenue windfall, saying a drop in oil prices and a possible global recession could mean a big drop in state revenue collections within the next several years. Senator Stuart Ingle, R-Portales, the state’s longest-serving legislator, had this to say:

“I think we better be real, real careful. … We just need to make sure we don’t overspend so much that down the road we have to find ways to fund or cut.”

What is also not at all surprising are fiscal conservatives, especially Republicans, calling for tax cuts and rebates.  Whenever surpluses in state revenues occur, such as this year especially, Republicans always begin to salivate and proclaim all taxation is bad and that rebates and tax reform are desperately needed and the only way to go.

The Republican tired and old political dogma has always been that tax revenues are the people’s money and anything in excess of what is actually needed over and above essential government services should be returned to the taxpayer. It appears the Governor has bought into the argument. It is a short-sighted philosophy believing that only essential, basic services should be funded with taxpayer money such as public safety.  If that were the case, there would be no public libraries, no museums, no zoos, no mass transit expansions and no memorial monuments.

MAJOR CAPITAL OUTLAY PROJECTS SHOULD BE IN THE MIX

The reality is that most if not all of the major priorities being identified by the Governor in her State of the State address will require reoccurring funding and revenues from taxation. What all too often is totally ignored because lack of revenues are major capital outlay projects that are for the benefit of the general public and that improve the overall quality of life. Roads and water projects are such priorities, but are not exclusive.

It is very disappointing is that Governor Michelle  Lujan Grisham totally ignored advocating for major capital outlay projects in her State of the State address  that could be transformative for the state and that improve the overall quality of life. Roads and water projects are such priorities, but are not exclusive.  Most if not all of the major priorities identified in both the Governor’s and the LFC Budget for the 2023 legislative session will require reoccurring funding and revenues from taxation.

Given the sure magnitude of the surplus, it is likely municipalities, citizens and interest groups will be asking for funding for special capital projects such as swimming pools, parks, recreation facilities, sport facilities, such soccer stadiums, and entertainment venues. Some lawmakers have already come forward with different ideas on how to spend some of the state’s budget surplus, including the building of a high-speed train crisscrossing New Mexico from north to south.

The Governor and the legislature should listen and fund such projects while they can. For the last two years, the New Mexico United soccer team has been trying to get taxpayer money to build a soccer stadium. In 2020, the soccer team was able to secure $4 million in state funds.  In 2021, Albuquerque taxpayers were asked to support a bond to pay for the stadium, but it was rejected. With a $3.8 in surplus revenue, the legislature should consider fully funding the facility which will be about $16 million.

Other major capital outlay facilities  and projects  that has been discussed for decades is improving the New Mexico State Fair and all of its aging facilities.  In particular, demolishing the 60-year-old Tingly Coliseum and building a multipurpose entertainment and sports facility with the capacity of upwards of 20,000  has been a dream of many a Governor, State Fair Commission and Fair Managers.

On February 25, 2019 it was reported that there is a need for such a facility and EXPO New Mexico was in  the final stages of conducting a feasibility study on the construction of a new arena on the state fairgrounds.  Tingley Coliseum has been around since 1957 with capacity for 11,000. Over the years it’s been remodeled and upgraded but it is still a state fair rodeo venue. The state and Albuquerque for decades has needed a large capacity, multipurpose entertainment venue of upwards of 20,000.

https://www.krqe.com/news/officials-want-to-build-new-arena-on-state-fairgrounds/

https://www.krqe.com/news/expo-new-mexico-looking-into-new-arena-to-replace-tingley-coliseum/

FINAL COMMENT

During the 2023, 60 day legislative session that began  on January 17 , there will be a consolidation and a consensus budget formulated that lawmakers will then approve for the fiscal year that will start on July 1, 2023 and end June 30, 2024. Indeed, the 2023 legislative session could very well turn out to be a “once in a century opportunity” to really solve many of the state’s problems that have plagued it for so many decades.  It should also be viewed as an opportunity to build facilities that are needed and that will have a lasting impact on the state’s quality of life for decades to come.

On Monday, December 19, 2022, the ACLU and the NM Center on Law & Poverty filed a “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief” against the City of Albuquerque on behalf 8 Plaintiffs alleging they are homeless.  They claim they were displaced from Coronado Park when the city closed it and that the city did not provide satisfactory shelter.  According to the ACLU, the lawsuit was filed to stop the City from destroying encampments of the unhoused, seizing and destroying personal property and jailing and fining people.

 ALLEGATIONS OF UNIHABITABLE WESTSIDE SHELTER

The civil rights lawsuit details a litany of alleged problems with the Westside Emergency Housing Center (WEHC). The plaintiff’s allege that the shelter is “unsafe, unhealthy, and unfit for human habitation”.   It makes the allegation that the west side shelter can “trigger  mental health conditions” the homeless may suffer from, including “post-traumatic stress disorder”.

The specific allegations in the complaint regarding the Westside Shelter are as follows:

Of the available shelter beds, the greatest number is at the Westside Emergency Housing Center (“Westside shelter”), a facility housed in a former temporary jail that the City stopped using in 2003. The City variously represents the Westside shelter as being able to house between 300 and 450 people.

The Westside shelter is unsafe, unhealthy, and unfit for human habitation. The building does not meet the essential fire safety and building codes of applicable local codes and state regulations and law, including state fire safety codes …  and the City’s own building safety codes.

A recent report from the Albuquerque Fire Department indicates that there are no working fire hydrants on the property. … Federal funds have been used to finance the operation of the Westside shelter, but, on information and belief, the City’s assurances to federal authorities regarding the fitness of the facility have not been, and currently are not being, met.

… The shelter is infested with black mold. …  On information and belief, residents have been scalded in the showers at the Westside shelter due to defective mixing valves. At times as few as one shower in the building has been working, such that residents must bathe in mobile showers on trailers out back.

…  The shower doors in the women’s pod cannot be closed, such that women do not have privacy while bathing. …  On information and belief, showers have, at times, not been accessible for people who use wheelchairs. … 

The kitchen is not operable, and the facility cannot pass a health and safety inspection. There is no oven, stove top, or working refrigerator available for use by people residing there. …  No certificate of occupancy has been issued to operate the building as a homeless shelter. The last such certificate was issued in 2006.

There is no washing machine or clothes dryer available for residents to clean and dry their clothing. They must wash their clothes in the bathroom sinks and hang them outdoors on the cyclone fencing. … There are bed bugs and parasites in the bedding, and there is no effective method in use to “sanitize” the sheets, blankets, mattresses, and bedding. … 

No secure storage space is available for people’s belongings. There are lockers in the building, but residents cannot use them. Residents’ personal property lies directly on the floor under the bunk beds on which they sleep. …

Chronically overcrowded, there are not enough beds for everyone, so people sleep on plastic “boats” on the floor. On information and belief, a complaint was filed with the City Inspector General in March 2022 due to problems with staff misbehavior, including allegations of extortion. 

The Westside shelter is in a location that is on the outskirts of the City and is far from services, jobs, and support systems such as family and friends. People who sleep there are separated from case managers, social workers, treatment providers and employment support and 10 other social service programs, and often cannot obtain timely transportation to appointments in town that could help them obtain employment, housing and other supportive services.

…

Many residents have mental illness and behavioral health disabilities, but, on information and belief, mental health therapy is not provided there. …  On information and belief, many unhoused people are banned from the shelter on a permanent basis; sometimes for possession or use of drugs, which are common causes for being banned. … 

 Couples who are partnered or married cannot stay together if one member of the couple is a man and the other is a woman, since men and women must stay in separate parts of the shelter, causing these people to lose one of their primary forms of social and emotional support.

This separation is particularly difficult for people who have disabilities and rely on their partner for help.  People living with minor children are not permitted to stay at the shelter.  Women and people whose gender presentation is nontraditional or nonbinary are often harassed at the shelter.

Paragraphs 35 to 62,  “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”.

The link to review the full unedited complaint is here:

https://www.aclu-nm.org/sites/default/files/field_documents/final_complaint_class_action.pdf

INSPECTOR GENERAL REPORT ON WESTSIDE HOMELESS SHELTER

The Office of Inspector General (OIG) priorities are the prevention, deterrence, detection and investigation of fraud, abuse, mismanagement and waste in the City of Albuquerque’s programs and operations.  The City Inspector General is an independent city agency and is not under the management nor control of the Mayor nor the Albuquerque City Council.

The mission of the Office of Inspector General is to serve as an independent and objective inspection and investigative body to promote effectiveness, efficiency, transparency and integrity, to prevent and detect fraud, abuse, mismanagement, and waste in in the City of Albuquerque’s programs and operations.

https://www.cabq.gov/inspectorgeneral/inspector-general-about

ALLEGATIONS MADE IN ANONYMOUS TIP

On September 28, 2022, the Office of Inspector General received an anonymous tip hotline complaint alleging the Westside Emergency Housing Center would not pass a fire inspection or a health inspection. The complaint alleged there are inoperable showers, there is an infestation of bed bugs, there are no clean sheets for the residents, there is no operational kitchen and the facility is not Americans with Disability Act (ADA) compliant.

EDITOR’S NOTE: A confidential source has come forward and confirmed  the source of the anonymous tip was a private individual critical of the  facility who participated in  a group tour of the facility.

The OIG determined that the allegations contained violations of City Ordinances and regulations. The OIG determined that it was appropriate for the OIG to conduct a fact-finding investigation. The purpose of the investigation was to determine if there were violations of city contracts or the City fire codes, electrical codes and plumbing codes that rendered the shelter uninhabitable.

As a result of the investigation, the OIG was able to only partially substantiate the allegation that the Westside Emergency Housing Center would not pass a fire inspection or a health inspection.  The OIG made recommendations for improvement of the facility without the city being force to close it.

On January 11, the City of Albquerquerqu Office of Inspector General (OIG) released its final report entitled with the subject matter “Poor conditions at Westside Emergency Shelter.” 

This blog article is an in-depth analysis of the OIC report and how it discredits many of  the allegation made in Class Action Complaint For Violations of Civil Rights.

BACKGROUND

The OIG report contains the following edited provisions:

“The City of Albuquerque records show the Westside Emergency Housing Center (WEHC) building was deeded to the City from Bernalillo County. Before the facility was deeded to the City in 2003, Bernalillo County built and operated the facility as a correctional facility. On  July 11, 2022 the City entered into a contract with the a private service  contractor to manage and operate the facility  for the period July 1, 2022, through June 30, 2023. The goals of the contract are to ensure that people of all ages have the opportunity to participate in the community and economy and are well-sheltered, safe, healthy, and educated.

The private contract is designed to increase housing stability by providing emergency overnight shelter to adult men and women and their children. In August 2022, a group of citizens toured the WEHC, noting their concerns.

On August 31, the OIG received a complaint regarding poor conditions at the WEHC alleging that the facility would not pass a fire or health inspection due to broken showers and infestation of bed bugs, a lack of clean bedding, no operational kitchen, and non-compliance with the Americans with Disabilities Act (ADA).”

ALL INCLUSIVE ALLEGATION INVESTIGATED

The OIG investigated one major, all-inclusive, allegation relating to Westside Emergency Housing Center. That allegation states:

The Westside Emergency Housing Center (WEHC)  would not pass a fire inspection or a health inspection. There are inoperable showers, there is an infestation of bed bugs, there are no clean sheets for the residents, there is no operational kitchen and the facility is not ADA Compliant.

In preparation of the its final report, the IGO reviewed the private contracts entered into by the city with management and service providers, all applicable city fire codes, fire inspection reports, environmental health inspection reports, and city code enforcement inspection reports for the WEHC.

OIG ANALYSIS AND FINDINGS

The OIG reviewed the private contract for the services to be provided for the shelter. The service contract provides that the contractor shall “perform … services in a manner satisfactory to the City and consistent with any standards required as a condition of [payment by the city] … and … to provide emergency overnight shelter for adult men, women and families with children.”

LAUNDRY SERVICES PROVIDED

The service contract specifically provides  “the contractor shall provide laundry services for all of the bedding, towels, etc. used by the shelter residents.”  The contract provides the contractor “shall provide regular cleaning and maintain the sanitation of resident pods, common areas, medical pods, hallways, and bathrooms to meet cleaning standards, including Center for Disease Control and NM Department of Health standards to prevent the spread of COVID-19.”

On September 22, 2022, the OIG spoke with a representative of the service contractor.  The discussion revealed that weekly laundry services are provided for bedding and towels.  The contractor’s representative stated that there have been isolated instances when residents refuse laundry service because the residents desire to keep the same bedding.

UNANNOUNCED VISIT

On September 30, 2022, the OIG made an unannounced visit to the, WEHC, toured the facilities, spoke to residents, and inspected pod logs for July, August, and September 2022. The pod logs document the events occurring during each shift.  Towels and bedding are picked up every Wednesday by the laundry service, and the prior week’s laundry is returned.

The OIG noted that in many of the pod logs for Wednesdays, there was documentation that laundry services were provided, however, the OIG did find that the documentation could be more consistent. The OIG recommended that the pod log form be revised to better ensure that each recurring event is documented.

Where the residents [have] concerns about handing over their bedding and towels, the OIG recommended that the service contractor might consider scheduling a specific day and time for an outing to a laundromat where the residents can launder their bedding, towels, and any other clothing.

RODENT INVESTATION HANDLED BY PEST CONTROL

The OIG confirmed that mice and bed bugs were an issue at the WEHC but also that the City provides pest control services monthly. The management service provider representative stated that a different pod is sprayed and treated each day of the week of service.  The OIG was able to verify that the City has a contract for pest control services at the WEHC and that those services are being performed monthly.

SHOWERS AND TOILETS FOUND IN WORING ORDER

During the OIG walkthrough, the OIG noted that all showers and toilets in the resident pods were in working order. The OIG did observe that the room utilized as storage does not have operable toilets and showers. Additionally, the space being renovated into a recreation room for the residents does not have operable showers.

The recreation space is a common area used by both male and female residents so the showers are not necessary and would not be utilized. The OIG noted that the kitchen area of the WEHC is used as storage for dry goods.

MEALS PROVIDED BY SERVICE CONTRATORS WITH KITCHEN FACILITIES NOT REQUIRED

“The WEHC does have an operable refrigeration and freezer unit. The kitchen does not have operable ovens. The WEHC has a warming unit for meals brought in by the contractors. The contract does not require the service contractor to have a kitchen or to operate a kitchen.”  (Commentator’s Note:  Ostensibly, the reason why the kitchen does not have operatable ovens is that  private service contractors provide meals prepared off sight.)

MEDICAL CARE AND ATTENTION

The contract requires the management service contractor  to assist with the coordination of medical and supportive services provided by other organizations and volunteers at the shelter facility. This includes meals that are provided or served at the WEHC facility. The OIG observed the intake process at the WEHC, noting that residents were screened before entry.

COVID TESTING

The OIG found that COVID testing was conducted on individuals who were new to the WEHC or who indicated symptoms or stated they have COVID. C1’s representative stated that the residents are routinely tested for COVID-19.  The WEHC has two separate COVID units, one for males and the other for females. COVID-positive residents are housed in these pods.

RESIDENTS FEEL SAFE

The OIG heard from residents who stated that although there are things they feel could be improved upon, they feel safe at the WEHC.  Residents  are permitted to keep their belongings in their assigned space but must adhere to the requirements for maintaining a clean and organized space.

FIRE MARSHALS INSPECTION

City of Albuquerque Fire Code  provides the Albuquerque Fire Department Fire Marshal’s Office shall inspect for fire and life safety violations  all commercial buildings and multi-family dwellings within the city’s jurisdiction. Fire inspections of buildings and premises can be divided into new construction and existing buildings.

The OIG made a request to the Fire Marshal for the most recent fire inspection conducted at the WEHC. The OIG was provided a Fire Inspection report dated June 13, 2022, and a subsequent reinspection, dated September 9, 2022.

The June 13, 2022 life safety inspection report identified eleven (11) violations and a follow-up reinspection occurred on September 12, 2022. The following email was received by the OIG, regarding the re-inspection.

“Per your request, below is an update from the re-inspection that occurred on 9/9 at 7440 Jim McDowell Rd: Update on Westside Homeless Shelter. Inspector LaCour went out to shelter and so far they have repaired the Illumination of exit signs violation … , emergency lighting violation … , smoking violation … , combustible material in storage room violation.

Sprinkler system and fire alarm system were tested by Alysworth but none of the paperwork has been submitted. Stated they will be submitted by end of day today. Fire evacuation plan, fire safety plan, signage throughout and hydrant testing has not been completed.

Inspector LaCour explained to the Director that FMO could assist with fire drills (evacuation plan) Eric Gonzales stated he does have the CO and an occupant load that he will submit ASAP for inspector LaCour to print out Occupant Load signs for posting.”

On August 17, 2022,  an inspection was conducted and that all city code violations had been resolved except the one dealing with the inspection and testing of Fire hydrants.   A conversation with by OIG with  FCS maintenance revealed that the fire hydrant uses non-potable water and that there are very few vendors who conduct this service.

ENVIRONMENTAL HEALTH DEPARTMENT INSPECTION IDENTIFIES INFESTATIONS WITH  PEST CONTROL MEASURES INITIATED

“The OIG requested the Environmental Health Department to provide an inspection report for the WEHC. The OIG was provided a report from the Environmental Health Department dated  October 5, 2022. The October 5, 2022 inspection report identified observed conditions and recommendations for Food Safety in the Kitchen and Dormitories.  The report  observed signs of rodent, fly and bed bug infestation. It was noted that the WEHC has on-contract pest control that is currently providing treatments for pests. It was recommended that the pest control company be consulted to develop additional plans for control. The report was intended to assist with the resolution of identified issues.”

PLANNING DEPARTMENT INSPECTION

The OIG requested the Planning Department to provide an inspection report for the WEHC. The following summary was provided to the OIG on October 20, 2022.

“On October 4, 2022, Chief Building Inspector … , Chief Mechanical/Plumbing Inspector, and Division Manager …  conducted a site visit to the Westside Emergency Housing Center located at 7440 Jim McDowell NW. We were guided by Maintenance Supervisor … The facility has 8 modules that house women in a few and men in the rest. Each module has adequate toilet, sink, and shower facilities. There are a few of the showers that ramps have been added for wheeler chair access.  [The Maintenance Supervisor]  stated that the drainage issues have greatly been reduced by the removal of the paper towel dispensers which were replaced with hand dryers.

The 3 inspectors found that the facility still have problems with backups due to drug paraphernalia being flushed down the toilets. We toured the kitchen facility which is currently being used as a storage area. They are working on plans to submit for a kitchen remodel to include upgrading the refrigeration, hot serving area, and prep space.  There were a few of the egress doors that were very hard to open [but]  service tickets in for repairs have been issued.

On October 4, 2022, Chief Building Inspector … , Chief Mechanical/Plumbing Inspector, and Division Manager …  conducted a site visit to the Westside Emergency Housing Center located at 7440 Jim McDowell NW. We were guided by Maintenance Supervisor … The facility has 8 modules that house women in a few and men in the rest. Each module has adequate toilet, sink, and shower facilities. There are a few of the showers that ramps have been added for wheeler chair access.  [The  Maintenance Supervisor]  stated that the drainage issues have greatly been reduced by the removal of the paper towel dispensers which were replaced with hand dryers.

WESTSIDE SHELTER IS “SAFE HARBOR” NOT REQUIRED TO BE ADA COMPLIANT

The OIG noted “the  cleanliness of this facility could use much improvement and it is well worn beyond its time. The OIG did note that the building is old and did not appear to have been renovated or altered.

The OIG found the facilities were not complainant with all 2010 ADA requirements. OIG researched ADA requirements in the 2010 ADA regulations, a “safe harbor” provision was created for businesses and state and local governments. A “safe harbor” means that you do not have to make modifications to elements in a building that comply with the 1991 ADA Standards even if the 2010 ADA standards have different requirements.

“Safe harbor” does not apply to elements that were NOT addressed in the original 1991 ADA Standards but ARE addressed in the 2010 ADA Standards. Additionally, alterations after 2010, to elements that were compliant with the 1991 ADA Standards would be required to comply with the 2010 ADA standards.

FIRE CODE VIOLATIONS CORRECTED

The OIG was able to partially substantiate the allegation that the WEHC would not pass a fire inspection at the time of the complaint. As indicated in a fire inspection report, dated June 13, 2022, the WEHC incurred multiple fire code violations. The Fire Marshal’s Office conducted a reinspection on September 9, 2022, and an email was submitted to the OIG.  It stated that the violations had been corrected with the exception of one relating to the inspection and testing of Fire Hydrants.

ENVIRONMENTAL HEALTH CONCERNS

The OIG was able to substantiate that there are some environmental health concerns at the WEHC. The report is intended to assist with the resolution of identified issues and not to be punitive. The protocols employed are the same afforded all entities.

The OIG was not able to substantiate the allegation that there are no clean sheets for the residents.

INOPERABLE AND OPERABLE SHOWERS

The OIG was able to partially substantiate the allegation that some showers at the WEHC are not operable. Showers in the resident’s pods are operable. The inoperable showers are in areas not used for housing residents.

The OIG was not able to substantiate a contract violation related to the WEHC’s kitchen being inoperable. The OIG was not able to substantiate an ADA violation. The OIG’s investigation revealed that the facility was built well before the 1991 and 2010 ADA requirements were enacted and absent alterations to the building, the building is not subject to current certain ADA regulations.

FINAL RECOMMENDATION MADE

The OIG made sweeping recommendations regarding the continued operation of the westside shelter.

“The OIG recommends that the FCS department continue to work with the contractor to locate a vendor who can conduct the inspection and testing of the fire hydrants that use non-potable water.

Additionally, the OIG recommends that a copy of the inspection reports be provided to both the contractor and FCS maintenance.

The contractor is responsible for remediating the issues and should make every effort to correct any deficiencies.

 FCS maintenance should work with the contractor to ensure that these matters are resolved and subsequently monitored.

The private service contractor and the  Family and Community Service Department (FCS)  should facilitate more frequent pest control services and monitor the outcome and take necessary actions to ensure the mitigation of any infestations.

 FCS should conduct continuous monitoring and inspections of the WEHC to ensure all issues are being addressed in a timely manner.

CITY RESPONDS TO OIG REPORT

The Department of Family Community Services (FCS)  was given the opportunity to respond to the OIG report  [and] has moved forward with addressing the identified concerns.

The FCS reported that Aylworth Fire Sprinklers  conducted an annual fire hydrant test that was completed on Tuesday 1/10/2023.  The report provided to DFCS on 1-12-23 indicated that all (3) Hydrants passed without any deficiencies. DFCS has submitted the report to the OIG office as of 1-12-23.

Given no deficiencies were identified, there were not items requiring remediation. DFCS said it  will update its  internal staff and contractors and will continue to monitor the hydrants as part of the ongoing inspections of the WEHC.

PEST CONTROL REMEDIATION EFFORTS

The FCS reported that  routine pest control is done monthly per a contract with a private service contractor.  That contractor recommended specific treatment for bedbugs every 90 days. The next bedbug treatment is scheduled for March 2023. The last treatment for the facility units/pods was conducted most recently on Friday 12/10/2022 (pods A,B), Saturday, 12/11/2022 (pods D,F) and Sunday 12/12/2022 (pods C,G).

Dryers are also available for heat treatment mitigation and are done for a duration of 20 minutes @ 400 degrees to kill bed bugs and hotboxes have been purchased by the operator and are being used according to contractor report on 1/11/2023.

 A request to purchase a new larger hot box was made on 1/11/2023 and was approved by FCS. 3) FCS Maintenance has a work order process which Heading Home (contracted WEHC operator) utilizes.

DFCS also has a scheduled call every Wednesday morning to discuss all maintenance issues with the contracted operator. The City meets with Heading Home, the contracted WEHC operator, weekly to discuss maintenance needs of the facility and to discuss anticipated timeline to address/complete. FCS Maintenance is at the WEHC to address needs at minimum once a week. If there is an emergency, FCS Maintenance will be dispatched immediately.

The link to the full unedited OIG report is here:

https://www.cabq.gov/inspectorgeneral/documents/22-0160-c__investigative_informative_case_synopsis.pdf/view

file:///C:/Users/HP/Downloads/22-0160-C__Investigative_Informative_Case_Synopsis.pdf

COMMENTARY AND ANALYSIS

The Inspector General report discredits many of the inflammatory allegations made in the civil rights lawsuit.  The city has spent upwards of $500,000 for repairs and bringing it up to code compliance.  The biggest  take away of the OIG report is that there  are insufficient findings to merit closure of the facility. In particular, the OIG did not find that Westside Emergency Housing Center is “Unsafe, Unhealthy, And Unfit For Human Habitation”. 

The most damaging findings by the IGO include that a June 2022 fire marshal inspection found 11 violations at the WEHC  and  that “mice and bed bugs were an issue” and that some of the toilets and showers did  not work.  According to a city Planning Department inspection report “The cleanliness of this facility could use much improvement and it is well worn beyond its time.”

Notwithstanding the negative findings, they do not make the facility “Unnsafe, Unhealthy, And Unfit For Human Habitation”.   The city has used the facility for many years for the unhoused without incident.

The civil rights complaint makes the inflammatory allegation that the west side shelter can “trigger  mental health conditions” the homeless may suffer from, including “post-traumatic stress disorder”. A few of the 8 Plaintiffs also allege they did not feel safe when they stayed at  the shelter and that they will not go back.  These allegations  must be called into question in that the OIG stated it heard from residents who state that although there are things they feel could be improved upon, they feel safe at the WEHC.

On January 12 during  a press conference announcing the opening of the Gateway Gibson Health Hub center for limit emergency shelter. Mayor Tim Keller addressed the WEHC situation saying the city has put $500,000 toward repairs but acknowledging it is not ideal.

RESPONDING TO SPECIFIC ALLEGATIONS

The complaint allegations can be enumerated with a response as follows:

    1.  COMPLAINT ALLEGATION: The Westside shelter is unsafe, unhealthy, and unfit for human habitation. The building does not meet the essential fire safety and building codes of applicable local codes and state regulations and law, including state fire safety codes …  and the City’s own building safety codes. … A recent report from the Albuquerque Fire Department indicates that there are no working fire hydrants on the property. … The shower doors in the women’s pod cannot be closed, such that women do  not have privacy while bathing. …  On information and belief, showers have, at times, not been accessible for people who use wheelchairs. …

 INSPECTOR GENERAL FINDINGS:

The OIG was able to only partially substantiate the allegation that the WEHC would not pass a fire inspection at the time of the August 31 anonymous complaint. As indicated in a fire inspection report, dated June 13, 2022, the WEHC incurred multiple fire code violations. The OIG report states “The Fire Marshal’s Office conducted a reinspection on September 9, 2022, and an email was submitted to the OIG.  It stated that the violations had been corrected with the exception of one relating to the inspection and testing of Fire Hydrants.”

The OIC report states as follows

“On October 4, 2022, Chief Building Inspector …, Chief Mechanical/Plumbing Inspector, and Division Manager …  conducted a site visit to the Westside Emergency Housing Center … . We were guided by Maintenance Supervisor … The facility has 8 modules that house women in a few and men in the rest. Each module has adequate toilet, sink, and shower facilities. There are a few of the showers that ramps have been added for wheeler chair access.  [The  Maintenance Supervisor]  stated that the drainage issues have greatly been reduced by the removal of the paper towel dispensers which were replaced with hand dryers.

COMMENTARY:  The complaint  allegation is contrary to findings of the follow-up inspections of the shelter.  Simply put, the shelter is in fact meeting the essential fire safety and building codes of applicable local codes and state regulations and law, including state fire safety codes …  and the City’s own building safety codes.  Under applicable city fire safety, electrical and plumbing codes and state regulations and laws, when city inspections are conducted, such as those done by the Fire Marshal’s Office or  the  Planning Department Code Inspection division, and the city inspectors find that the facility does not meet code compliance, they are required by law to declare the facility substandard and uninhabitable. They are to red tag the facility and  issue “notices and orders”  ordering  the facility to be vacated and shut down. The property owner is ordered to make repairs and bring the property into compliance with all codes.  City owned and operated facilities are not exempt.

     2.  COMPLAINT ALLEGATION: Federal funds have been used to finance the operation of the Westside shelter, but, on information and belief, the City’s assurances to federal authorities regarding the fitness of the facility have not been, and currently are not being, met.

INSPECTOR GENERAL FINDINGS:   The Inspector General found that subsequent inspections by the City Planning Department, the Fire Marshal’s Office, the Chief Building Inspector and the  Chief Mechanical/Plumbing Inspector city  revealed repairs have been made. They did not “red tag” the facility for closure. In particular the facility does have working showers in the areas where residents stay.  A fire inspection found only 1 remaining violation involving inspection/testing of the on-site fire hydrants. The city’s Family and Community Services Department said the shelter’s fire hydrants inspected by an outside contractor earlier and they all passed

     3.  COMPLAINT ALLEGATION:    “A recent report from the Albuquerque Fire Department indicates that there are no working fire hydrants on the property. …  On information and belief, residents have been scalded in the showers at the Westside shelter due to defective mixing valves. At times as few as one shower in the building has been working, such that residents must bathe in mobile showers on trailers out back.”

INSPECTOR GENERAL FINDINGS:

The Inspector General found that subsequent inspections by the City Planning Department, the Fire Marshal’s Office, the Chief Building Inspector and the Chief Mechanical/Plumbing Inspector city  revealed repairs have been made. In particular the facility does have working showers in the areas where residents stay.  A fire inspection found only 1 remaining violation involving inspection/testing of the on-site fire hydrants. The city’s Family and Community Services Department said the shelter’s fire hydrants inspected by an outside contractor earlier and they all passed.  The City Planning Code Inspection Division, the City Fire Marshal’s Office and the City Environmental Planning Departments all did inspections of the shelter and did follow up inspections and found there were insufficient code violations to close the facility with the city making repairs.

The OIG report states:

The Inspector General reports “On October 4, 2022, Chief Building Inspector … , Chief Mechanical/Plumbing Inspector, and Division Manager …  conducted a site visit to the Westside Emergency Housing Center …  We were guided by Maintenance Supervisor … The facility has 8 modules that house women in a few and men in the rest. Each module has adequate toilet, sink, and shower facilities. There are a few of the showers that ramps have been added for wheeler chair access.  [The  Maintenance Supervisor]  stated that the drainage issues have greatly been reduced by the removal of the paper towel dispensers which were replaced with hand dryers.

      4. COMPLAINT ALLEGATION: The shelter is infested with black mold. …

 COMMENTATORS NOTE:  The allegation that the shelter is infested with black mold appears to be a fabrication. The Environmental Health Department, the Planning Department and the Fire Marshals Office did inspections of the shelter. The finding of  black mold is absent from the OIG report.

    5. COMPLAINT ALLEGATION: The kitchen is not operable, and the facility cannot pass a health and safety inspection. There is no oven, stove top, or working refrigerator available for use by people residing there. … 

 INSPECTOR GENERAL FINDINGS:

“The WEHC does have an operable refrigeration and freezer unit. The kitchen does not have operable ovens. The WEHC has a warming unit for meals brought in by the contractors. The contract does not require the service contractor to have a kitchen or to operate a kitchen.”

COMMENTATOR’S NOTE: The contract does not require the service contractor to have a kitchen or to operate a kitchen in that service providers provide meals prepared at other location.

The OIG report states:

We toured the kitchen facility which is currently being used as a storage area. They are working on plans to submit for a kitchen remodel to include upgrading the refrigeration, hot serving area, and prep space. …

     6. COMPLAINT ALLEGATION: There is no washing machine or clothes dryer      available for residents to clean and dry their clothing. They must wash their clothes in the bathroom sinks and hang them outdoors on the cyclone fencing. … There are bed bugs and parasites in the bedding, and there is no effective method in use to “sanitize” the sheets, blankets, mattresses, and bedding. … 

 INSPECTOR GENERAL FINDINGS:

The service contract specifically provides  “the contractor shall provide laundry services for all of the bedding, towels, etc. used by the shelter residents.”  The contract provides the contractor “shall provide regular cleaning and maintain the sanitation of resident pods, common areas, medical pods, hallways, and bathrooms to meet cleaning standards, including Center for Disease Control and NM Department of Health standards to prevent the spread of COVID-19.”

“The OIG is recommending that  the private service contractor and the  Family and Community Service Department (FCS)  should facilitate more frequent pest control services and monitor the outcome and take necessary actions to ensure the mitigation of any infestations.”

     7.  COMPLAINT ALLEGATION: Chronically overcrowded, there are not enough beds for everyone, so people sleep on plastic “boats” on the floor. On information and belief, a complaint was filed with the City Inspector General in March 2022 due to problems with staff misbehavior, including allegations of extortion. 

COMMENTATOR RESPONSE

It has been repeatedly reported that the Westside Emergency Housing Center has immediately available upwards of 450 beds to accommodate the homeless on any given night. Cubicles have been constructed to provide a degree of privacy. The shelter offers shelter to men, women, and families experiencing homelessness in Albuquerque. The OIG did not address any complaint of problems with staff misbehavior with the allegation “based  on information and belief”  with nothing more identified as verifiable.    

    8.  COMPLAINT ALLEGATION: The Westside shelter is in a location that is on the outskirts of the City and is far from services, jobs, and support systems such as family and friends. People who sleep there are separated from case managers, social workers, treatment providers and employment support and 10 other social service programs, and often cannot obtain timely transportation to appointments in town that could help them obtain employment, housing and other supportive services.

Many residents have mental illness and behavioral health disabilities, but, on information and belief, mental health therapy is not provided there. …  On information and belief, many unhoused people are banned from the shelter on a permanent basis; sometimes for possession or use of drugs, which are common causes for being banned. …

Couples who are partnered or married cannot stay together if one member of the couple is a man and the other is a woman, since men and women must stay in separate parts of the shelter, causing these people to lose one of their primary forms of social and emotional support.

This separation is particularly difficult for people who have disabilities and rely on their partner for help.  People living with minor children are not permitted to stay at the shelter.  Women and people whose gender presentation is nontraditional or nonbinary are often harassed at the shelter.

COMMENTATOR REPONSE: 

It was on October 22, 2019 that Mayor Tim Keller announce that the Westside Emergency Housing Center (WEHC) would become a 24/7 homeless shelter. The shelter has been upgraded and remodeled to accommodate the homeless and expand the services offered. It is a “one-stop-shop” with service providers providing medical services, case management and job placement services. It costs about $4.5 million a year to operate the shelter with about $1 million of that $4.5 million invested in transporting people to and from the facility.

https://www.krqe.com/news/albuquerque-metro/city-plans-on-expanding-services-at-westside-emergency-housing-center/

The city is spending upwards of $1 Million a year to provide the unhoused with transportation to and from the Westside Emergency Shelter.  While staying at the WEHC, the homeless have access to a computer lab, showers, medical examination rooms, medical care  and receive 3  meals a day. The WEHC is a 24/7 operation and has a staff of 80 to assist those who stay at the shelter.  The shelter does connect men and women to permeant housing and other resources. $1.5 million has been allocated for improvements to the Westside Emergency Housing Center during the current fiscal year.

The Westside Emergency Housing Center has immediately available upwards of 450 beds to accommodate the homeless on any given night. The shelter offers shelter to men, women, and families experiencing homelessness in Albuquerque. While staying at the WEHC, the homeless have access to a computer lab, showers, medical examination rooms, and receive three meals a day. The WEHC is a 24/7 operation and has a staff of 80 to assist those who stay at the shelter.  The shelter does connect men and women to permeant housing and other resources.

The westside emergency shelter services includes mental illness and behavioral health referrals to service contract providers. The city has increased funding to the Family Community Services Department for assistance to the homeless with $35,145,851 million spent in fiscal year 2021 and $59,498,915 million being spent in fiscal 2022.  

The 2022-2023 enacted budget for the Department of Community Services is $72.4 million.  Key appropriations passed by City Council involving the West Side Emergency Shelter and the unhouse are as follows:

$1.5 million for improvements to the Westside Emergency Housing Center

$3,773,860  for mental health contracts

$2,818,356 substance abuse contracts for counseling

$6.8 million for medical respite and sobering centers

$20.7 million for affordable and supportive housing   

$4 million to expand the Wellness Hotel Program

$7 million for a youth shelter

$7 million for Gateway Phases I and II, and improvements to the Gibson Gateway Shelter facility

$555,000 for services including mental health and food insecurity prevention

The link to the 2022-2023 city budget it here:

https://www.cabq.gov/dfa/documents/fy23-proposed-final-web-version.pdf

A ”Safe Outdoor Space”  has been established at the city of Albuquerque’s Westside Emergency Housing Center.  It is a managed site where people who are homeless can sleep overnight, with access to toilets, showers and more. Outdoor camping by the unhoused in the area in all likelihood can be permitted.

FINAL COMMENTARY

The civil rights  class action complaint degrades to the utmost extent the Westside Shelter making inflammatory, unsubstantiated or outlandish hearsay allegations that it is “unsafe, unhealthy, and unfit for human habitation”.   It makes the outlandish allegation that the west side shelter can “trigger  mental health conditions” the homeless may suffer from, including “post-traumatic stress disorder” ignoring the fact the unhoused cannot be forced to use the shelter facility.   It does not disclose to what extent the facility has actually been upgraded and remodeled for the unhoused, the extent of services provided by the city, the number of city employees at the facility nor the fact the shelter cite does have a Safe Outdoor Space for the unhoused to park and live out of their vehicles.

City Inspector General Report discredits the civil rights lawsuit that the Westside Emergency Housing Center is “unsafe, unhealthy, and unfit for human habitation”. If the West Side shelter was in fact found by the various city departments that did inspections,  including the Planning Department Code Enforcement Division, the Environmental Health Department and the Fire Marshal’s Office,  to be “unsafe, unhealthy, and unfit for human habitation”, those departments  would have no discretion but to “red tag” it and order its closure at least until such repairs brought it into compliance with city codes.

The city needs to seek immediate dismissal of the case for the plaintiffs unsubstantiated or discredited claims  and for a failure state claim upon which relief can be granted.

Links to related blog articles are here:

Unhoused Sue City Over Coronado Park Closure; City Should Seek Immediate Dismissal; Unhoused Cannot Be Allowed To Violate The Law As They Refuse City Shelter And Services

 

Dinelli New Mexico Sun Guest Opinion Column “ACLU lawsuit vs ABQ: false and inflammatory”