Lawmaker: APD ‘tied their own hands’ with class-action jail settlement

By: - September 16, 2021 6:00 am

An APD prisoner transport vehicle sits in front of the Bernalillo County Public Safety Center in Downtown Albuquerque in late August, 2021. (Photo by Shelby Kleinhans for Source NM)

A Democratic state lawmaker and former prosecutor says he sees a connection between rising violent crime and a 2017 settlement prohibiting Albuquerque police from arresting people accused of some misdemeanor crimes.

In 2017, the city of Albuquerque settled with people incarcerated at the Metropolitan Detention Center who sued more than two decades earlier — in 1995 — to improve conditions at the jail that stem from severe overcrowding.

Part of the settlement requires Albuquerque police to no longer arrest people suspected of committing nonviolent crimes, except for driving under the influence. Instead, officers can issue the person a citation.

Research shows that in some communities where nonviolent misdemeanor offenses are not prosecuted, the likelihood of those defendants getting charged again in the future fell, with no apparent increase in local crime rates. The effect was even greater among first-time defendants.

During a discussion about Albuquerque’s Violence Intervention Program at a legislative panel on Sept. 13, Sen. Daniel Ivey-Soto said the fact that Albuquerque police aren’t allowed to arrest people for some misdemeanors is “a real problem.”

He said he finds it disturbing that the city entered into the agreement after the class-action lawsuit against the jail. He suggested there might be a causal relationship between the city signing the agreement in 2017 and what he characterized as a significant rise in crime in the city today.

The Albuquerque Police Department reported crimes like assault and kidnapping increased by 3% between 2018 and 2020. The rate of violent crimes in New Mexico is below where it was during much of the 1990s when the lawsuit was filed, according to the FBI.

“Crime out of control is because APD, the city, a previous administration — but still, they’ve tied their own hands,” Ivey-Soto said. “So they can’t do anything on this. If you look at the trajectory of things going out of control in the city, there might be a relationship between the two. And when the city loses control of the streets, it seems to me that this is part of the result that we end up getting.”

He suggested that Bernalillo County sheriff’s deputies enforce those laws instead, because they’re not bound by the agreement.

“Maybe they need to come in on all these cases, I don’t know,” he said. “But this is a huge problem, because this is where people get emboldened.”

Officers still have discretion

Ivey-Soto read from the settlement agreement in which the city agreed to no longer arrest people accused of committing nonviolent misdemeanor offenses other than DWIs “when there are no circumstances necessitating an arrest.”

Luke Languit, a commander with the department, said police officers still have discretion to consider aggravating circumstances or other factors on top of an alleged misdemeanor, and they can arrest someone for a misdemeanor under certain circumstances without violating department policy or the McClendon settlement.

“So the problem that that creates, though, the problem that APD, or whoever agreed to this, has created, is that the Legislature has been working very hard to de-felonize things,” Ivey-Soto said. “We’ve been working very hard to not create new felonies. When the city then enters into an agreement not to arrest people for misdemeanors, you’re kind of tying our hands, and you’re forcing us to make things into felonies.”

Sen. Linda Lopez said adding more felonies to state law doesn’t accomplish anything and is not the appropriate response.

“On the other hand, if we’re not offering any support for our families, no type of intervention, services and such, then we’re going to have what we have,” Lopez said. “It’s not just prevalent upon police to take care of the issues. It’s our community. We have to re-establish community in the city of Albuquerque. If we don’t, we’ve lost it in many different ways.”

Ivey-Soto said businesses, schools and others told him about people trespassing on their property, which is a nonviolent offense. He said they told him they call police, who say they can’t arrest the person trespassing.

“Well, no wonder cops are leaving the force,” Ivey-Soto said. “What if I’m a cop, and I can’t be a cop? Why am I going to be a cop?”

Ivey-Soto then read off a list of misdemeanor crimes, including criminal trespass.

“I’ve got a real problem with criminal trespass, because this is where you need someone off your property, because what you’re saying is ,‘I don’t control my land. We’re saying, ‘I don’t have control over my land. Unless I exercise the Castle Doctrine and shoot the person because I don’t have a nonviolent way of getting this person off my property. Because all the cops are going to do is say, ‘We’re going to cite you, thank you very much. Have a nice day.’ And that person’s going to come right back on my land. I can’t control my store.’ “

Languit said in cases where an officer responds to an alleged criminal trespass at a business, police are still going to do some kind of enforcement, even if McClendon prohibits them from making an arrest. Instead, police are expected to show up, identify the people accused of a crime, give them a criminal trespass notification and send them on their way.

Languit said that person could come right back as soon as the police leave, and he wouldn’t be surprised if that happens. It’s on the beat officer or the patrol officers working those area commands to recognize a repeated trespass as an aggravating circumstance, and say, “I just served you the criminal trespass notification. you clearly came back. Now you are being arrested and you are going to be going to jail for that.”


Damon Martinez, a senior policy adviser for the Albuquerque Police Department, said he would bring up Ivey-Soto’s concerns to leadership and city attorneys. Martinez was the U.S. attorney for New Mexico under former President Barack Obama.

“Your concerns aren’t falling on deaf ears here,” Martinez said. “To the extent that there’s exceptional circumstances, obviously, we’ll also make our chief and our police force aware of the concerns that you’ve brought up.”

In some minor cases, police themselves prosecute crimes rather than district attorneys. Ivey-Soto asked Martinez to ask APD leadership whether it would help if legislators passed a law requiring all cases in Bernalillo County Metropolitan Court to be prosecuted by the District Attorney’s Office, to free up time for police officers to patrol rather than spend time prosecuting cases. He said that could be one of the crime-related bills addressed by lawmakers in the upcoming session.

New Mexico court rules prohibit police from trying any case that comes before a jury or involves charges of domestic violence or driving while under the influence of drugs. They can prosecute all other kinds of cases, including the misdemeanors at issue in the McClendon settlement.

Martinez said it is a complicated question about the resources of the District Attorney’s Office, the courts and the police department.

“I don’t believe that we’re in a position to answer that question today, this morning,” he said.

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.