Prosecutors clear hurdle in suit against New Mexico Civil Guard

Oñate statue protest shooting trial expected to start next month

By: - September 28, 2021 6:00 am

An empty space remains in the middle of the sculpture “La Jornada” where the statue of genocidal conquistador Juan de Oñate once stood in Albuquerque. Local activists say the recent acquittal of homicide defendant Kyle Rittenhouse in Wisconsin has eerie similarities to a shooting that occurred in front of the statue here last summer. (Photo by Shelby Kleinhans / Source NM)

A New Mexico state court ruled that a lawsuit accusing a right-wing militia of impersonating police during a protest last summer can move forward. And attorneys handling a related criminal case against a former Albuquerque city council candidate who shot a protester that day expect to go to trial next month.

On June 15, 2020, protesters organized a prayer vigil at the monument depicting Spanish colonizer Juan de Oñate called La Jornada at Tiguex Park in Albuquerque’s Old Town neighborhood. As the event continued, people gave speeches calling for the statue’s removal and some of the protesters branched off and started trying to pull the statue down.

Rebar and rubble mark the spot where the statue of the genocidal conquistador stood. (Photo by Shelby Kleinhans for Source NM)

Six members of the New Mexico Civil Guard (NMCG) armed with rifles and military style gear sought to protect the statue, with several members telling reporters they believed removing the statue would lead to more property destruction. They included Bryce Spangler, the militia’s “state commander of New Mexico,” who was also in a leadership position of the New Confederate States of America.

More than a year later on Sept. 13, 2021, District Court Judge Elaine Lujan ruled that Spangler and five other militia members who were there could be held liable for impersonating police officers during the protest.

Members of the group are associated with white supremacist and neo-Confederate organizations, according to their own public statements on a podcast and in Facebook posts. In the weeks leading up to the shooting, they had been showing up to protests against police violence and structural racism across New Mexico to “protect” people, businesses and property.

The 2nd Judicial District Attorney’s Office asked the court for an injunction that would prohibit the militia from continuing to organize and train as a private military unit, which prosecutors argue creates a chilling effect on other people’s rights to free expression.

In a civil complaint filed last summer, District Attorney Raul Torrez and lawyers from the Institute for Constitutional Advocacy and Protection accused the militia of threatening public safety and encouraging violence. They argue New Mexico law forbids private unregulated security forces because they are not accountable to anyone.

They allege that the militia’s heavily armed presence exacerbated a tense atmosphere on June 15, 2020 in which counterprotestor Steven Ray Baca, apparently not affiliated with the militia, attacked several protesters and shot Scott Williams four times in the torso with a .40-caliber handgun.

“They have made (it) very plain in recent news coverage that they train, operate and organize for the express purpose of engaging in public law enforcement,” Torrez said in a press conference a month after the shooting. “That’s not allowed under our system.”

The militia’s lawyer Paul John Kennedy asked the court in February to throw out the suit. Kennedy argued that if the court reads the law in a way that includes everyone who tries to maintain public order, that would “make anyone who broke up a fight” criminally liable.

Judge Lujan pointed out that Kennedy misrepresented the state’s argument.

“The allegations here, however, are not merely that someone attempted to break up a fight,” she wrote in the Sept. 13 ruling. “Plaintiff’s allegations, in total, with respect to Defendant’s actions at the June 15 protest, and in light of the New Mexico Civil Guard’s alleged mission, can support a claim that Defendants exercised or attempted to exercise the functions of a peace officer.”

Prosecutors had asked the court to similarly sanction a total of 14 members of the militia but the court found that because eight of them were not present at the June 15 protest, it dropped that specific claim against those eight people.

However, Lujan let stand the state’s charge accusing the militia as a whole and all 14 members named in the suit of creating a public nuisance.

Kennedy argues that the injunction would violate the militia’s right to bear arms and their rights to free expression and association but the court again pointed out that this is not what the state is asking for.

“Plaintiff does not merely seek to enjoin Defendants from ‘organizing’ and ‘operating’ together or from simply bearing arms,” Lujan wrote. Instead, the state is asking to enjoin the militia from organizing and operating in public as a military unit independent of New Mexico’s civil authority and without having been activated by the Governor and from assuming the role of law enforcement.

TIMELINE

June 15, 2020: Steven Ray Baca allegedly shoots Scott Williams during a protest at La Jornada monument.

June 16: Albuquerque Police Det. Kelsey Lueckenhoff charges Baca with aggravated battery with a deadly weapon.

June 19: Deputy District Attorney R. John Duran charges Baca with aggravated battery causing great bodily harm, two counts of battery in the attacks of two other protesters, and unlawful carrying of a weapon. These supersede the previous charge.

July 13: The District Attorney’s Office files a civil lawsuit against the New Mexico Civil Guard, accusing them of violating the state Constitution by operating as a private military unit without accountability to the public.

Aug. 28: Baca is arraigned in 2nd Judicial District Court and pleads not guilty.

April 27, 2021: District Court Judge Alisa Hart issues an order showing that the prosecution and defense both want a trial in October 2021.

Son of former deputy charged

Deputy District Attorney R. John Duran has accused Baca of aggravated battery causing great bodily harm in Williams’ shooting, two counts of battery of two other protesters, and unlawful carrying of a weapon.

Baca, 32, is reportedly the son of a former Bernalillo County Sheriff’s deputy. He ran an unsuccessful campaign for Albuquerque city council in 2019.

Prosecutors and Baca’s defense attorney, Jason Bowles, have agreed that they would like to see a trial on criminal charges in October. As of Sept. 27, no court date had been set, according to court records.

Last August, prosecutors wrote that they anticipate that Baca’s attorneys will claim he acted in self defense. But Torrez said his office will argue that because Baca was the first aggressor, he will not be able to make a claim of self defense, and that Williams acted in response to Baca’s “violent provocation.”

In the minutes leading up to the shooting, video shows Baca push a woman from behind, causing her to fall to the ground and injure her legs. It also shows him moments later trying to push past another woman to get near the statue, and while she had her arms out and her back turned, he grabbed her shoulder and slammed her into a concrete sidewalk where she hit her head.

“Unfortunately, Mr. Baca, either because he was armed and felt empowered to continue his violent provocations, or because he felt the support of the New Mexico Civil Guard, continued to repeatedly assault members of the public,” Torrez said.

At that point, a group of protesters including Williams chased Baca away from the monument, according to court records. As Baca ran away, he sprayed them with mace. One protester attempted to hit Baca in the head with a longboard, but dropped it. Williams attempted to use the longboard to knock the gun out of Baca’s hands, but Baca shot Williams.

Then, six New Mexico Civil Guard members surrounded Baca in an apparent attempt to defend him. Baca could be heard talking on his cell phone as he lay on the ground, according to police records.

Video shows Albuquerque police then tried to disperse the crowd with batons, beanbag rounds and tear gas. District Attorney Raul Torrez later criticized the move, because it dispersed witnesses.

Albuquerque police initially investigated the shooting, however, the assaults leading up to the shooting do not appear in the original criminal complaint filed by Albuquerque Police Det. Kelsey Lueckenhoff.  The DA’s office had to amend the charges a month later, Torrez said, because when Albuquerque police filed the initial charge, “no law enforcement officer had been able to obtain a statement from the shooting victim. Nor had anyone been able to identify the other victims who were present at the scene.”

The DA’s office directed New Mexico State Police to take over the investigation. State Police learned about Baca’s alleged assaults before the shooting from witnesses and video evidence.

“There were a number of individuals who, when the State Police and agents from our office attempted to contact them, they were very wary,” Torrez said. “And I think part of that has to do with the way that the police action unfolded that day.”

Torrez is referring to Albuquerque police tear-gassing the crowd. Media recorded a witness on video that night asking why the police were not interviewing witnesses. Weeks before the shooting, Albuquerque police had been recorded on video meeting with a group of armed local MMA fighters and the following day, APD dispatchers were heard referring to “heavily armed friendlies pointing guns down from a rooftop overlooking a protest march downtown.

District Court Judge Alisa Hart wrote in an April order that the trial in Baca’s case has been delayed because of limits placed on the court during the COVID-19 pandemic, and not because of anything done by anyone involved in the suit.

Note: Editor-in-Chief Marisa Demarco recused herself from editing these stories out of a conflict-of-interest concern. She also doesn’t discuss this content with reporter Austin Fisher. Instead, this story was edited by Andrea Shaw, a national editor with the network of nonprofits Source NM belongs to, States Newsroom.

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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.

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