“This crime emphasizes why symbols like the Oñate statue represent hate, violence, and the legacy of that violence on Indigenous peoples, and the ongoing threat that we continue to face in our own communities,” said Janene Yazzie, Southwest Regional Director of NDN Collective, on Oct. 10 after the preliminary examination hearing in the attempted murder case against Ryan Martinez. (Photo by Austin Fisher / Source NM)
State prosecutors in New Mexico last week indicated they will seek greater penalties for the man recorded on video shooting a climate activist during a prayer ceremony and protest in Rio Arriba County, by arguing the reason for his violence was discriminatory.
County surveillance footage and a witness’ Instagram livestream of the event show Ryan Martinez shoot Jacob Johns (Hopi, Akimel O’odham) before fleeing in a white Tesla.
The decision also comes after family and supporters for Johns petitioned prosecutors to add the hate crime enhancement.
On Sept. 28, Martinez was arrested by a tribal police officer shortly after the shooting. The officer testified in court that he found a handgun, a bullet still in the chamber, in a holster on his waist. New Mexico State Police later found a second handgun and a full magazine in the Tesla’s center console.
Martinez remains in a Rio Arriba County jail awaiting charges for attempted murder and aggravated battery.
University of New Mexico law professor Joshua Kastenberg said he thinks the hate crime charge against Martinez is viable and “about as clean as it gets.”
While the prosecution appears to have the clearest case of hate crime Kastenberg has seen in years, Martinez’s guilt beyond a reasonable doubt is still subject to more evidence or information.
He said Martinez “showed up with a purpose of disrupting an event that specifically targeted a position taken by the leadership of Native American tribes and the bulk of their members, and he was going to disrupt it.”
“He stepped right into a hate crime charge on that one,” Kastenberg said.
State prosecutors added a hate crime enhancement and a firearm enhancement to the charges against Martinez. He faces up to 16 years and six months for the underlying felonies, and possibly up to seven years for the two enhancements. There are also other potential pending charges, including reckless driving. New Mexico struggled for a while with hate crime enhancement, Kastenberg said. It was on the books since at least 2001 but wasn’t discussed at the Court of Appeals or the New Mexico Supreme Court until 2007. That year the U.S. Supreme Court upheld hate crime enhancements states had in place, ruling them to be constitutional.
Potential prison time
State prosecutors added a hate crime enhancement and a firearm enhancement to the charges against Martinez.
He faces up to 16 years and six months for the underlying felonies, and possibly up to seven years for the two enhancements. There are also other potential pending charges, including reckless driving.
New Mexico struggled for a while with hate crime enhancement, Kastenberg said. It was on the books since at least 2001 but wasn’t discussed at the Court of Appeals or the New Mexico Supreme Court until 2007.
That year the U.S. Supreme Court upheld hate crime enhancements states had in place, ruling them to be constitutional.
The aggravated battery charge against Martinez came from photographic evidence and sworn testimony showing he pointed his loaded handgun at Malaya Peixinho. Her father Mateo Peixinho testified he interacted with Martinez twice before the shooting, and asked him why he was at the peaceful event.
“He described to me that he was frustrated and angry at the county commissioners for allowing a few Indian protesters to stop them from doing what they needed to do,” Mateo Peixinho testified.
Johns’ attorney John Day said Peixinho’s testimony supports a hate crime finding because it shows there is a motivation based on race and religion.
Since Kastenberg started teaching in New Mexico in 2016, “I haven’t seen a clear-cut hate crime as much as this one in our state.”
Self defense claim
Martinez’s attorney has said he was acting in self-defense. All defendants are entitled to raise a defense, according to Kastenberg. For a jury to consider a self-defense instruction, there only has to be a shred of evidence, the professor said.
There were plenty of times in Kasenberg’s experience as a trial judge when he said even if no one would believe a particular self-defense claim, he would still have to allow a jury to consider it because of the “scintilla of evidence” rule.
Kastenberg also said prosecutors “would be free to argue that it’s patently absurd to even consider that self-defense would apply in this case.” He doesn’t know what prosecutors would be able to present to a jury to prevent a self-defense claim at the trial. They might be able to but it’s usually rare, he said.
Kastenberg said he thinks the evidence “very possibly” could say Martinez stepped into it on purpose, which would negate his self-defense claim.
Day, the victim’s attorney, said the video evidence would undercut a self-defense claim because Martinez was the only person there with a gun. Kastenberg said one can forfeit a self-defense claim simply by going to a place uninvited with the apparent purpose of disrupting that place, if the disruption contains the element of an intent of violence.
If the prosecution can present real evidence to show that Martinez came to the event looking to disrupt it, with the intent of using violence if he had to, they could make a good faith argument that he’s forfeited the right to raise a self-defense claim before the trial.
“I’ve seen that video, and I don’t see any self-defense there,” Day said. “I see someone who was motivated to commit violence against a prayer vigil.”
Identifying with hate
It is also the second shooting at a monument specifically to Spanish colonizer and war criminal Juan de Oñate in the last three-and-a-half years, and part of a longer political struggle around public monuments to the United States’ colonial and Confederate history. Martinez’s case was mentioned three times during the Nov. 1 sentencing hearing for the person convicted in connection with the first shooting.
“Our political violence is unique to us here in a way that it’s not south of the Mason-Dixon line, but it has the same mentality, in my mind.” Kastenberg said.
According to the Rio Grande SUN, when Martinez learned the statue ceremony had been postponed, he wrote to the Rio Arriba county manager, “Has the ceremony really been cancelled (sic) tomorrow morning??My statue won’t return?”
“There is a core of people who use it as their identity,” Kastenberg said. “Those symbols are their identity — and not simply because they have a relative who fought for the Confederacy in the Civil War or they can point back to a time where they had a relative who fought for the Spanish.”
Kastenberg likened what’s happening in New Mexico to the violent resistance to changing Confederate symbols over the last 25 years in the U.S., along with a greater mass of people supporting them, who wouldn’t do violence themselves but seem comfortable with it.
“Even if they could analyze themselves deep down, they don’t want their belief system being challenged,” Kastenberg said. “They justify acts of violence in guarding their world, the belief systems that are contained with them, without even considering that their world represents generations of racial, religious, ethnic, gender oppression, and the like.”
‘If it was a synagogue, if it was a mosque: same concept’
Arguing for the hate crime enhancements in an interview, Day pointed to recent hate crime prosecutions including shootings at the Tree of Life synagogue in Pittsburgh, Penn.; a supermarket in Buffalo, New York; a church in Charleston, South Carolina; and a Walmart in El Paso.
Day compared Martinez’s actions to someone trying to intrude into and disrupt a Baptist church, for example, getting escorted by the congregation, pulling a gun and shooting into the building.
“What’s the difference?” Day asked. “This was simply an open air Indigenous ceremony. Not every religious ceremony has to take place inside a building. If it was a synagogue, if it was a mosque: same concept.”
Day said Johns and his family are pleased Santa Fe District Attorney Mary Carmack-Altwies indicated she will seek the hate crime and gun enhancements in the case.
“We’re also hopeful that the U.S. Department of Justice will see it as a hate crime,” Day said in an interview Friday. “It’s their call, but we certainly believe it falls under the federal hate crime statutes. But that’s their decision.”
There is a federal law which operates similarly to New Mexico’s hate crime enhancement, but it spells out specific hate crimes, allowing federal prosecutors to snare everyone involved in a given crime even if they are outside the state, Kastenberg said.
In a joint statement with the 25th Navajo Nation Council on Oct. 10, Council Speaker Crystalyne Curley asked the Justice Department, the Federal Bureau of Investigation, and New Mexico authorities to “investigate the shooting as a hate crime and terrorist attack.”
“That’s certainly helpful, when you have other Indigenous bodies taking that position,” Day said.
Day said the hate crime enhancement, and the hope for a federal charge matter because they recognize the hatred toward various religious and ethnic groups “and we can’t pretend that it doesn’t exist.”
“But what we can do is address it using the laws appropriately that target crimes based on hatred and bias,” Day said. “It’s important, in this case, to recognize that hatred and bias underlies what the shooter did.”
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