ACLU: Police Board Violated Free Speech

Albuquerque’s police oversight board violated the free-speech rights of five residents when it refused to let them speak on certain topics at a December meeting, according to the American Civil Liberties Union of New Mexico.

In a five-page letter to the city this month, the ACLU said the Police Oversight Commission should issue a public apology, and the five residents who wanted to speak should receive $1,500 to $2,500 each in damages. One audience member, the ACLU said, was forcibly removed from the meeting when he tried to speak about allegations of a conflict of interest involving a police commissioner.

The city, in turn, says it won’t pay damages or advise the POC to apologize. The ACLU’s clients have plenty of other “channels of communication” for airing their views, Assistant City Attorney Greg Wheeler said in a written response to the ACLU.

“There is no public right to free expression at a public meeting in a designated public forum,” Wheeler said.

The city hasn’t “restrained dissemination of your clients’ views,” he said. Wheeler noted that many of the people involved — including activists Silvio Dell’Angela and Andres Valdez — speak often in other forums, such as before the City Council.

The ACLU, however, contends that public comment periods in meetings are protected by the First Amendment.

The dispute, in this case, centers on the Dec. 13 meeting of the POC. The commission was facing controversy over whether its chairwoman, Linda Martinez, had a conflict of interest because of her membership in an organization that opposes civilian review of law enforcement: the local auxiliary of the Fraternal Order of Police.

The commission moved up on the agenda an item dealing with the allegation, so a vote on it came before public comment. Under POC rules, the meetings are supposed to start with public comment, though the commission can change that if a majority votes to do so.

In any case, the POC voted unanimously to support the chairwoman and to state that she didn’t have a conflict.

Then, when Valdez tried to speak about it during the public comment period of the meeting, Martinez told him there was no conflict of interest and to “please stop your comment.”

Valdez protested, but he returned to his seat and joined a chorus of audience members who stood to shout about their right to free speech.

Police officers ended up escorting Valdez from the meeting.

“There is no reason for this arbitrary, content-based restriction on public comment, and this constitutes a violation of our clients’ right to free speech,” ACLU staff attorney Alexandra Freedman Smith wrote to the city.

Freedman Smith said public comment periods are subject to First Amendment protections and it’s “impermissible in a public meeting to restrict speech on the basis of its viewpoint.”

The POC should issue a public apology, she said. It should also expand the allotted time for each public speaker from two to three minutes and allow discussion of any POC investigation or pending investigation, among other changes, she said.

Her clients also should be awarded monetary damages of $2,500 to Valdez and Charles Arasim each and $1,500 each for Eli Chavez, Kenneth Ellis and Dell’Angela, Freedman Smith said. All five had wanted to discuss the conflict of interest but couldn’t, she said. Ellis is the father of a man shot and killed by APD.

Wheeler, writing on the city’s behalf, said he wouldn’t advise police commissioners to apologize because the city opposes “compelling people to speak.” But he did say he would encourage the POC to consider some of the ACLU recommendations.

As for when a public speaker can be forced to leave a meeting, Wheeler said: “There is no clearly established law regarding the standard for removal of a disruptive onlooker or speaker. The matter is purely discretionary.”

In a written statement, Mayor Richard Berry’s office said people who attend meetings ought to be allowed to comment.

“The mayor believes that if citizens take the time to attend a public meeting, they should be given the opportunity to express their opinions,” mayoral spokeswoman Dayna Gardner said. “It is also the responsibility of those who express their opinions to respect others who attend and to allow the meetings to proceed in a timely and orderly fashion.”

The city released both the ACLU letter and its response after a Journal request.

Valdez is one of more than a dozen activists and family members of people shot and killed by officers who frequently attend City Council meetings to speak out against police misconduct.

The public comment periods at City Council and County Commission meetings are free-wheeling affairs. Typically, anyone can sign up to speak near the beginning of the meetings and talk on just about any topic. It’s not unusual for public speakers to address conspiracy theories, accuse local officials of corruption or tackle other subjects.

Each person gets two minutes. The council president and commission chair rarely restrict what people may talk about — except when the topic touches on something that’s part of a quasi-judicial or legal proceeding, such as zoning matters.
— This article appeared on page A1 of the Albuquerque Journal