Suit against militia follows in footsteps of Virginia case
Case seeks to bar NM Civil Guard from future protests
Almost three years ago, in August 2017, groups of white nationalists and civilian militias converged on the city of Charlottesville, Virginia, for a “Unite the Right” rally, which protested the planned removal of a Confederate statue. The weekend erupted in violence, and James Fields, an avowed neo-Nazi, plowed his car into a crowd of counterprotesters, killing 32-yearold Heather Heyer.
The rally, and the murder, captured the nation’s attention.
Two months later the city of Charlottesville, joined by neighborhood associations and local businesses, sued several militia groups to prevent them from attending rallies in the future. The lawsuit was successful, and by the following summer 23 defendants had agreed to no longer attend demonstrations in groups of two or more while armed.
Last week, more than 1,700 miles away in Albuquerque, 2nd Judicial District Attorney Raúl Torrez filed a similar lawsuit against the New Mexico Civil Guard — a heavily armed, self-proclaimed militia group that has been showing up at protests around the city. Torrez is assisted by the same attorneys from the Georgetown University Law School Institute for Constitutional Advocacy and Protection who drafted the lawsuit in Charlottesville.
“(The rally in Charlottesville) was a much more massive event than what happened in Albuquerque,” said Mary McCord, the legal director for ICAP.
“But the theories underlying the cases are very similar. In both cases we had unauthorized, unlawful, private militias who were usurping the role of law enforcement and the role of the military when it is called up lawfully by the governor. They were usurping that role and functioning as law enforcement without any authority to do so.”
The 33-page lawsuit is filed against the New Mexico Civil Guard and 14 of its members who “include some individuals associated with white supremacist and neo-Confederate organizations,” according to the complaint for injunctive and declaratory relief filed in the 2nd Judicial District Court on Monday. It argues that the New Mexico Constitution says civilian militias can only be activated by the governor and the group is acting like law enforcement — by holding trainings, outfitting itself with military equipment and gear, and patrolling protests armed and in uniform — but has no legal authority to do so.
The suit asks a judge to prohibit the civil guard and any successor groups 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 of New Mexico” and from “assuming reenforcement functions by using or projecting the ability to use organized force in response to perceived threats at protests, demonstrations, or public gatherings.”
Paul Kennedy, an attorney representing the NMCG, declined to comment, telling a Journal reporter that he had read the complaint, and “I have lots of thoughts on it but I can’t share them with you, I’m afraid.”
Bryce Provance, the NMCG’s founder and a defendant named in the lawsuit, said everyone has “the right to conscientiously object to any orders that you believe are unconstitutional” so he doesn’t need the governor to activate the NMCG.
“When the governor sits unconstitutionally and tells her police forces to stand down and let riotous and looting behavior ensue, and mayors and police chiefs and things like that, then you will see private citizens standing up for others in their community,” Provance said.
Provance and other members of the civil guard were at the June 15 protest calling for the removal of a statue of Spanish conquistador Juan de Oñate from the Albuquerque Museum grounds and members were detained for questioning following the shooting of a protester. Although the man charged in the shooting, Steven Ray Baca, does not appear to be a member of the group, Torrez and other officials have said its presence exacerbated tension in the crowd, leading to violence.
Guns at protests
Torrez stressed that the suit is not meant to curtail anyone’s right to protest, assemble or exercise free speech and it’s not meant to encroach on the Second Amendment right to bear arms. But he said he felt it was necessary for someone to “clearly articulate that there are boundaries in terms of who can act as law enforcement and who can exercise military authority.”
“I have the feeling there are a lot of folks on one side of this debate who look at the NMCG and they say, ‘I don’t see any problem with that because they’re stepping in to fill a void when (the Albuquerque Police Department) wasn’t there,’” Torrez said. “Then the question becomes if the polar opposite of the civil guard, maybe an antifa brigade or someone else showed up and they were heavily armed and now they’re claiming authority...For most folks there’s a long pause and then they go, ‘Oh, I never thought of it that way.’ ”
Torrez said he was frustrated by city officials saying they could not do anything to prevent militia members from showing up, heavily armed at demonstrations. At a news conference the day after the shooting, City Attorney Esteban Aguilar had said New Mexico’s open carry law, as well as the First and Second Amendments in the U.S. Constitution, prevents law enforcement from intervening if a person is legally allowed to carry a gun.
“There is some misunderstanding among frontline police officers and some of the command about what the boundaries are on other people’s rights,” Torrez said. “You saw that in statements that folks made after the event where in official press conference they said there’s nothing we can do. The lawsuit we filed yesterday fundamentally objects to that position.”
When asked if the city had itself considered filing a lawsuit against the Civil Guard, spokesman Matt Ross said in a statement “Cities are prohibited by the state Constitution from passing legislation on guns—including their presence at protests. Despite that, over the last year Albuquerque has boldly enacted a prohibition on guns in City spaces like community centers ... . This is being challenged in court and as we continue to explore our legal options in other areas, we welcome any help the DA is now ready to provide.”
The Virginia Constitution, written in 1776, included a clause that said “in all cases the military should be under strict subordination to, and governed by, the civil power” — meaning, attorneys with Georgetown ICAP say, the governor and administration. Forty-eight other states, including New Mexico, include this clause in their constitutions, McCord said.
“The original states were very concerned about the federal government overreaching and federal military power overreaching, so each governor wanted to have the ability to call into service the militia under the civilian power...,” McCord said. “It was really about installing all ability to call forth any type of military or militia by the governor only.… The last thing the governor or state authorities wanted to do was worry about rogue militias that disagreed with them.”
In New Mexico there are three classes of militia: the National Guard, a State Defense Force — a volunteer, reserve military force — and the unorganized militia, which is defined as all able-bodied men living in the state between the ages of 18 and 45 who can be activated to serve in the National Guard or State Defense Force, according to the lawsuit filed against the NMCG. But, it states, the unorganized militia lacks authority to operate as a military force unless called by the governor.
When asked on Friday if there are instances in which Governor Michelle Lujan Grisham would consider activating a militia, a spokeswoman said “no.”
McCord said ICAP has consulted with other jurisdictions, and helped Dayton, Ohio, prevent a spin-off of the Ku Klux Klan from attending a rally, but litigation wasn’t the answer for many of the other cities.
“In the times when I think it’s most warranted are situations like you saw in Bernalillo (County) where you have an event where the militia showed up, it did usurp law enforcement authority and there’s reason to believe it’s not a one-time thing,” McCord said. “This is what happened in Charlottesville as well after the “Unite the Right” rally — the organizers of that rally, the militias that attended were already talking about doing the same thing over and over. The same with Bernalillo there’s indications by NMCG that this is what they intend to do.”
City park gun ban
As for the New Mexico Civil Guard, on Thursday members attended a “Protest for Freedom” at Albuquerque’s Civic Plaza which was held to denounce the state’s public health orders — including mandatory quarantine and mask wearing and the shuttering of businesses — during the COVID-19 pandemic.
Torrez said his office is not seeking any action to prevent the civil guard from showing up to protests while the litigation moves through court, but will do so if necessary.
Gilbert Gallegos, an APD spokesman, said at Thurs
spokesman, said at Thursday’s protest uniformed officers approached about 10 armed people and asked them to leave and everyone complied.
“After two dozen protests, marches and demonstrations, we appreciate that the District Attorney has now stepped up to help with a legal strategy,” Gallegos wrote in a statement. “APD continues to adapt and improve, including efforts to notify armed individuals at Civic Plaza during the latest protest about the gun ban at city parks.”
The lawsuit, which cites an Albuquerque Journal article on the New Mexico Civil Guard more than a dozen times, along with Facebook posts and other media, references Provance saying the group “has the same escalation of force as the police department” and is an “auxiliary force” to law enforcement. But when reached by phone Friday, Provance walked that sentiment back and said the NMCG members were acting like concerned citizens.
However, he said they will change tactics in the future and have a less visible armed presence at protests.
“Maybe instead of carrying an AR15 and a bullet proof vest we go in with freaking just a uniform and sidearms,” Provance said. “We haven’t worked it all the way out but until we do we’re just going to be monitoring these types of things and not engaging like we did.”
And, Provance said, a couple of members are preparing to run for sheriff as Republican candidates in Bernalillo, Santa Fe, Doña Ana, and possibly Los Alamos counties in the next elections.
A couple days after the shooting at the protest, a voter rally by a Republican candidate for the state Legislature was slated to include Steve Pearce, the state GOP chairman and former congressman, as well as the Civil Guard as special guests. The NMCG didn’t show up and in a phone interview Friday, Pearce denied knowing the group’s members.
He said he will let the civil suit and constitutional questions play out in court rather than make any comment on it one way or another.
“We haven’t talked to the candidates,” Pearce said. “They haven’t approached me and haven’t asked for our support. We haven’t offered it or withheld it or anything we really don’t have a lot of contact with that group.”