New Mexico Mercury

Written by David Correia

The 46-page DOJ report on Albuquerque police violence released this month concluded that APD engages in unconstitutional policing and most of the recent fatal shootings by its officers were unjustified. Nearly all of the fatal and non-fatal shootings described in the report were shocking but some, in particular, read like cold-blooded executions, such as the way in which the DOJ report described the 2009 shooting death of Andrew Lopez:

“We identified several cases in which officers shot and killed civilians who did not pose an immediate threat of death or serious bodily injury to officers or others. For instance, in February 2009, an officer used unreasonable force when he shot and killed Andrew Lopez after officers attempted to pull Lopez over for driving with dim headlights and no tail lights. According to officers, they suspected the vehicle had been involved in a prior incident in which a gun was reported. However, the vehicle Lopez was driving did not match the make, color or type of vehicle that was reported earlier. After leading the officers on a low-speed vehicle chase for more than ten minutes, Lopez stopped the vehicle, exited, and ran toward a driveway of a residence where a truck was parked. One officer gave chase on foot, followed by approximately four other officers. The primary officer stated that he believed Lopez was armed with the biggest handgun he had ever seen and ordered him to drop it. When Lopez reached a fence and began to turn, the officer shot at Lopez three times. One of the shots struck Lopez, causing a non-lethal bullet wound. Lopez fell to the ground and lay motionless on his back. The officer walked around the truck and fired a fourth shot into Lopez’s chest, piercing his lung and heart and causing his death. Lopez was unarmed. The officer fired the fourth and final shot when Lopez was not pointing anything at officers and while he lay on his back already wounded” (p. 11).

Among the more disturbing elements of the report was how, in example after example, APD leadership praised and promoted officers who engaged in unjustified shootings; how these engagements were routine in their frequency; and how those responsible for the training of APD officers used fatal engagements such as the Lopez killing as models of exemplary police work in their training of new recruits.

But what is perhaps most disturbing of all regarding the long pattern of violent, unconstitutional policing in Albuquerque is what the report ignored: Why have our elected officials, particularly those responsible for prosecuting crimes such as the District Attorney and New Mexico Attorney General, sat idly by while APD violates the 4^th amendment and routinely uses unjustified lethal and non-lethal force? District Attorney Kari Brandenburg represents the government and the people of Bernalillo County in the prosecution of all criminal offenses, yet she has never once pursued criminal charges against any APD officers involved in any case of unjustified use of force. Attorney General Gary King announced that he was interested in the problem of police violence in Albuquerque but only after the release of the DOJ report last week. His office has never pursued criminal charges against any of the police officers described in the DOJ report. King also serves as the Chair of the New Mexico Law Enforcement Academy (LEA) and in that capacity could have pushed to decertify officers found to have engaged in the unjustified use of force.

Their failure to pursue charges has meant that the culture of aggression at APD described by the DOJ is reinforced by an expectation of impunity among APD officers that is a result of DA and AG inaction. Nearly all the officers described in the DOJ report have been promoted by APD and celebrated for their exemplary police work, rather than charged for their criminal behavior.

Representatives of the League of United Latin American Citizens (LULAC) took these concerns directly to Attorney General Gary King last Friday, April 11 in a meeting in the AG’s Albuquerque offices. I joined Ralph Arellanes and Dennis Montoya of LULAC along with Charles Arasim, Ken Ellis II, Stephen Torres and Sue Schuurman to press the Attorney General to aggressively pursue criminal charges against APD officers and, if possible, APD leadership. AG King was joined in the meeting by his director of investigations Earl Holmes.

Arellanes began the meeting by reminding King that his son, Andres Arellanes, was brutally beaten by APD officers in 2007 and Tasered 18 times. Arellanes was charged with assault against police officers. Arellanes was one of the many unarmed and non-threatening targets of unconstitutional policing in Albuquerque. Charges against him were eventually dismissed. Arellanes demanded that DA Brandenburg pursue charges. She refused. He referred the case to the AG’s office. King was unfamiliar with the case but promised to look into it.

King told us he recently met with the Department of Justice. He expected that the DOJ would identify specific officers who engaged in the unjustified use of force. He promised that if the DOJ chose not to pursue criminal charges against any of the officers described in the report, his office would.

“There’s a sorting going on,” King explained. “We’re starting with Doyle and Redwine. We’re opening files. Some will be referred. But if the DOJ won’t pursue, I will.”

(King mistakenly referred to “Boyd” as “Doyle” throughout the meeting).

Arellanes asked King, in his capacity as Chair of the Law Enforcement Academy, why he didn’t just decertify all these officers. King hedged, explaining that he didn’t have that authority as Chair. And moreover, as AG, he often recused himself from these administrative decisions. There was a conflict of interest, he explained, because he might later, as AG, pursue criminal charges.

“But, send me a list of all of these officers,” he told us. “The LEA is meeting on May 15.” He suggested that the LEA board could consider administrative prosecutions for officers found by the DOJ to have engaged in the unjustified use of force.

He also pointed out that the May 15 LEA board meeting would be reviewing recently revised police training curriculum.

Just last September, King joined with the rest of the LEA board to to change the New Mexico Administrative Code to give complete control over police training curriculum to Jack Jones, the director of the academy. Jones, who advocates a shoot-first approach to police training, recently told the press that “Evil has come to the state of New Mexico, evil has come to the Southwest, evil has come to the United States.” When the Santa Fe New Mexican requested a copy of Jones’s training materials, he responded by saying, “I’ll burn them before you get them.”

Ken Ellis and Charles Arasim reminded AG King of Jones’s views on training and his recent intransigence regarding the release of public documents.

“We’ve talked to Jones,” he told us. “He won’t be saying anything like that again. And you should be able to find those documents on the LEA website now.”

Despite his September vote giving total authority over police training to Jones, who advocates aggressive police training that begins with the assumption that every person an office encounters is armed, King admitted that police training in New Mexico was out of line with standards of constitutional policing. Stephen Torres interrupted King to ask, “Isn’t that your job, Gary, to enforce compliance?

“No,” King responded. “It’s the job of the New Mexico Director of Public Safety.”

“How can we put pressure on the LEA Board? On DPS?”

“I’ll help,” promised King.

We returned to Jack Jones. “Has he been reprimanded?”

“I’m not aware of any reprimand,” King told us. “Gorden Eden was his supervisor when he did these things.”

Gorden Eden, now Albuquerque Chief of Police, was the New Mexico Director of Public Safety until last month.

We asked King about the refusal of APD to release lapel and helmet camera videos.

“They’re violating the law by ignoring these IPRA (Inspection of Public Records Act) requests. Why are they allowed to ignore the law?”

King explained that while IPRA requires that public agencies release information, in practical terms it’s all but impossible to compel an agency that refuses to follow the law.

“You’d have to file a private right of action against APD,” he told us.

“It’s costly and there aren’t a lot of lawyers who’ll file them,” noted Montoya.

“And it’s cheaper for APD to get fined than release the videos,” noted Arasim.

King agreed with all of our complaints.

“Can you do something as AG?” we asked.

“Do you mean use my office as a bully pulpit?” he asked.

“Yes! The DOJ report has shifted the ground under our feet. Can’t you state publicly that APD must release these videos.”

“Yes,” he said. “I’ll do that.”

(Note: it’s been a week since he agreed. We followed up with an email asking that he quickly make a public statement; call a press conference, issue a press release. But so far nothing)

We asked what the AG’s office could do about the refusal of DA Brandenburg to pursue criminal charges against APD officers.

King pointed out that his office has removed six officers from duty, including the Sheriff of Mora County.

“State law makes it difficult to convict police officers,” he explained. “It’s not just Brandenburg. There aren’t many DAs who’ll charge cops. And if she did every judge would recuse themselves.”

Torres: “So what. Appoint a special judge.”

King agreed. “It’s hard, but we could do it. And I suspect DOJ is looking at these investigative agencies.”

No one in the room was satisfied with that answer. What about all the cases that have gone unprosecuted?

“Could we just bypass the DA’s office?

“Yes,” agreed King. “You could introduce legislation in which these cases go straight to the AG’s office, instead of the DA.”

We discussed the DOJ’s report on APD’s culture of aggression. King agreed that training is a critical issue. He said they expect a large crowd at the LEA’s May 15 meeting regarding the problem of police training and police misconduct.

“This problem is statewide,” he told us. “Since the Boyd shooting there’s suddenly a flood of reports into my office on bad police behavior from all over the state.”

He told us a story from when he was an undergraduate student at NMSU and he saw the Las Cruces SWAT aggressively provoke students at a protest.

“It’s a [police] culture here,” he said.

Ellis: “And we need accountability for that.”

“I’m trying to figure this all out,” he told Ellis. “But I struggle because as AG I don’t have as much authority in these matters as you think I do. But we’re going to push it and find out what my authority is. And I’m going to focus on what I can fix. The LEA board for one. And also the DOJ consent decree. I can say that whatever the DOJ imposes on APD, I can impose that statewide on every police department. And I’m prepared to find individuals that did criminal acts and pursue actions against them.”

He ended the meeting by telling us that he’s concerned about every case but the Doyle case is his focus. “It is particularly egregious.”

He meant Boyd.

(Gary King photo by Steve Terrell.)