New Mexico militia compares itself to NAACP, prosecutors liken it to the KKK
DA’s office has been trying for nearly a year to get basic information about the New Mexico Civil Guard
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 white supremacist militia under legal pressure from a local prosecutor in New Mexico is claiming protection under a 1958 court case that allowed the NAACP to keep its membership roster private from Alabama officials in order to protect members from violence and harassment.
The Bernalillo County District Attorney’s office, meanwhile, says the case is more like a 1987 one where a federal appeals court required the Ku Klux Klan to turn over membership records, albeit sealed from the public.
The dispute stems from a non-fatal shooting at a protest in Albuquerque in June 2020 at the statue depicting Juan de Oñate outside the Albuquerque Museum. Steven Ray Baca is charged with aggravated battery causing great bodily harm for the shooting, two counts of battery on two other protesters, and unlawful carrying of a weapon.
Baca is not apparently affiliated with the militia but video shows six New Mexico Civil Guard members armed with rifles surrounding him just after the shooting in an apparent attempt to defend him. District Court Judge Elaine Lujan ruled in September that those same militiamen could be held liable for impersonating police officers.
DA Raul Torrez and lawyers from the Institute for Constitutional Advocacy and Protection (ICAP) accused the militia of threatening public safety and encouraging violence, and asked the court to force the group to stop organizing and training as a private military unit.
The DA’s office argues that New Mexico law forbids private unregulated security forces because they are not accountable to anyone and their behavior creates a chilling effect on other people’s rights to free expression. The militia has ties to white supremacist and neo-Confederate organizations, and local Republican officials and candidates.
They’ve been trying since January 2021 to verify the militia’s membership and obtain its communications with others, including police, said Mark Baker, special counsel for Torrez’s office. But the militia, he said, has not handed over the records and won’t even verify the authenticity of publicly available records like their website, for example.
We have run into surprising resistance at every turn, particularly when it comes to obtaining responses to written discovery requests. We are having, so far, to go through with witnesses, witness by witness, questions to try to authenticate all of these documents, and it's going to be part of the case one way or the other.
– Mark Baker, special counsel for the Bernalillo County District Attorney's Office
After Baker and NMCG’s attorney Paul Kennedy argued in a telephonic hearing last week, Lujan ordered the militia to respond to the state’s questions by Jan. 2. If Kennedy fails to meet that deadline, all of the underlying documents that prosecutors are trying to verify will be entered into the court record, Lujan said.
Kennedy argued that answering the state’s questions would violate his clients’ freedoms of association, and said prosecutors are trying to make NMCG’s membership lists public.
He pointed to case law from 1958 where the state of Alabama was trying to obtain membership information from NAACP, and tried to draw a connection to news conferences and public statements denouncing the militia by the district attorney Torrez, Albuquerque Mayor Tim Keller and New Mexico Gov. Michelle Lujan Grisham.
“There could hardly be a clearer example of a manifestation of public hostility than that statement by the mayor,” Kennedy said.
Baker argued that the NAACP case is irrelevant because the militia has not shown that exposure of its members’ identities would open them up to economic reprisals, loss of jobs, threats of physical coercion, and other kinds of public hostility proven in the NAACP case.
It’s been nearly a year since prosecutors first handed their discovery demands to the militia and they’ve only gotten back 12 or 13 pages, Baker said. In the NAACP case, the group fully complied with Alabama’s discovery requests, he said.
Instead, Baker argued that NMCG is in a similar position to the Ku Klux Klan in a 1987 case where an appeals court upheld an order requiring the KKK to produce membership lists in discovery, but not making those lists public.
Judge Lujan agreed and said the militia has not shown that its members would suffer similar consequences if their names are discoverable in the lawsuit. So she ordered the militia to hand over the membership information, with the understanding that it will be governed by a carefully-written protective order.
“We’ve dealt with some absurdities along the way and getting to the nature of these admissions is important for us to be able to move forward with the case and get it properly ready for trial,” Baker said.
Prosecutors have received a “mishmash” of different answers from witnesses, Baker said, with some denying that NMCG is even a militia, and others identifying one defendant as a “captain” in charge of other members. That defendant said it was just a nickname among friends, Baker said.
The high profile of the NMCG case is due in part to its similarity to other cases around the country, with activists here comparing it to the trial of Kyle Rittenhouse in Kenosha, Wisc.
ICAP, the legal organization based out of Georgetown University Law Center helping prosecutors with the case, is asking a court in California to force social media giant Facebook to hand over records that would show who organized the militia’s Facebook page, which was apparently wiped when NMCG was banned from the platform.
ICAP previously represented the city of Charlottesville in a successful lawsuit against private militias at the Unite the Right rally in Charlottesville, Va., in August 2017.
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