Copyright © 2020 Albuquerque Journal
Almost a month ago, Steven Ray Baca was arrested and charged in the shooting of a demonstrator at a protest calling for the removal of the Juan De Oñate statue from the Albuquerque Museum grounds. Then, a couple of days later, the charges were dropped pending further investigation.
That investigation has happened and 31-year-old Baca is once again charged in the shooting of Scott Williams, who was critically injured. Baca’s attorney, meanwhile, maintains the shooting was a “completely lawful exercise of self-defense.”
Second Judicial District Attorney Raúl Torrez announced his decision to resurrect the shooting charge at a news conference Monday afternoon. He also announced his office has filed a civil suit asking a judge to prohibit the New Mexico Civil Guard, a heavily armed civilian militia group, from “organizing and operating in public as a military unit independent of New Mexico’s civil authority” and from “assuming law enforcement functions by using or projecting the ability to use organized force in response to perceived threats at protests, demonstrations, or public gatherings.”
During the June 15 protest, members of the New Mexico Civil Guard were armed and standing in front of the statue to discourage protesters from attempting to remove it.
Although Baca and the New Mexico Civil Guard deny association with one another, the guard has been condemned by state and local officials and politicians for introducing firearms to the initially peaceful protest and prayer vigil.
“I strongly believe that (the New Mexico Civil Guard’s) presence at the protest and their declared intention to be present at future protests, rather than safeguarding the community, rather than safeguarding property, actually makes the situation far worse,” Torrez said at the news conference. “So it is based on those conclusions that I’ve authorized the filing of a complaint today to seek to prevent them from engaging in that conduct in the future.”
Torrez repeatedly stressed that the litigation is not an attack on the First Amendment right to protest or free speech or Second Amendment right to carry firearms. However, he said, it does seek to prevent groups from independently acting like law enforcement or military.
“One of the key principles in our democratic system is that only those recognized, trained and licensed by the government may engage in this kind of activity,” Torrez said. “There is a very clear and undeniable reason for that. We need to maintain legitimate forms of accountability and legitimate forms of oversight for those individuals who have the responsibility and the power to exercise this kind of force in society.”
When reached by phone Monday evening, Bryce Provance, founder of NMCG and a defendant in the lawsuit, said he believes the action will lead to an attack on Second Amendment rights. The group is being represented by attorney Paul Kennedy, who could not be reached for comment.
Provance said he believes the “city is covering their own butts after what happened at Oñate.”
“I think this is an attack on the Second Amendment,” Provance said. “The New Mexico Civil Guard has attorneys that are ready. They can get their attorneys, as well.”
‘A rush to judgment’
In the immediate aftermath of the shooting at the protest seeking the removal of the statue of Oñate, a controversial conquistador known for his brutality against the Acoma Pueblo, Albuquerque Police Department officers showed up in riot gear to control and then disperse the crowd. Witnesses were not interviewed and evidence was not collected that night.
Instead, the department based its account of the shooting on undercover officers and mobile camera units, which it said had not been close enough to see the events leading up to the confrontation between Baca and 39-year-old Scott Williams. For that reason, the initial complaint did not mention that Baca had been seen pushing protesters to the ground. It did not include that a bystander’s video shows him grabbing one woman from behind and throwing her down on the concrete.
A couple of days after the melee, DA Torrez announced he had to drop the charge related to the shooting due to flaws in the initial investigation by the Albuquerque Police Department. The case was turned over to the New Mexico State Police and Baca was instead charged with one count of aggravated battery, two counts of misdemeanor battery against other protesters and carrying a firearm without a concealed carry permit.
On Monday, Torrez announced his office had amended the charging document once again, and Baca is again charged with aggravated battery with a deadly weapon. One of the battery charges has been dropped.
Torrez said the investigation, which included interviews with Williams, other protesters, and the review of multiple videos, determined that Baca had been engaged in violent confrontations with other protesters for 20-30 minutes, leading the demonstrators to repeatedly try to push him out of the crowd.
“Any individual who would otherwise be able to claim self-defense cannot claim self-defense if he or she initiates a violent confrontation,” Torrez said. “It’s our belief that Mr. Baca was the first aggressor in this context and that the individual that he shot was acting in response to his violent provocation.”
Torrez said the investigators have determined Williams picked up a skateboard – which was not his own – as he saw Baca reaching for his gun and he used the skateboard to try to hit the gun out of Baca’s hand.
“There had been several weeks ago some discussion about whether or not this individual, Mr. Williams, was armed with a knife or some other instrument in his hands,” Torrez said. “We can clearly rule out a knife. We can see in multiple images that it is actually a pair of eyeglasses that this person took off after Mr. Baca started deploying the chemical spray. He also had a vape pen in his other hand.”
Jason Bowles, Baca’s attorney, criticized DA Torrez for charging his client with the same charges that were previously dismissed.
“That concerns me greatly because it is contrary to what the district attorney previously promised regarding a full, complete and fair investigation,” Bowles wrote in a statement. “During his press conference today, DA Torrez said the investigation was still not completed. The District Attorney’s office got this charge wrong before because of a rush to judgment and it is still wrong.”
Civil Guard a ‘public nuisance’
In a complaint for injunctive and declaratory relief filed in 2nd Judicial District Court on Monday, Torrez and other attorneys argued that the New Mexico Civil Guard’s actions of a “coordinated, armed, and uniformed presence at public events” results in the intimidation of the public and a chilling effect on the exercise of the First Amendment.
“NMCG’s attempt to operate as a private police or military unit in Bernalillo County is a per se public nuisance that must be abated to protect public safety, allow the free and open use of public forums, and minimize violent armed confrontations,” the complaint states.
The complaint, which names 14 members of the militia, repeatedly references a recent article by the Albuquerque Journal on the group and its activities. It states that the group – “whose members include some individuals associated with white supremacist and neo-Confederate organizations” – is operating as a military unit in violation of the New Mexico constitution, is a public nuisance, and asks the court to declare that the group is in violation of the articles of the constitution when they are “providing, without lawful authority, armed protection of persons, businesses, or property at protests, demonstrations, and public gatherings.”
It states that the NMCG held its first inaugural “muster” in Albuquerque in March in order “to summon, organize, and train the Militia of NM,” and has held training sessions throughout the state in which members practice military tactics and techniques “with the intent to deploy those techniques at future public gatherings where NMCG anticipates civil disorder.”
Torrez said this is the first time such action has taken place in New Mexico, and the first time a District Attorney has taken such action in the United States. A similar case unfolded in Charlottesville after the “Unite the Right” protest in which a counter-protester was killed when she was struck by a car. In that case, the Georgetown Law School’s Institute for Constitutional Advocacy – which is assisting Torrez’s office – scored a major victory and the defendant militia group was prohibited from participating in protests and rallies as unauthorized armed groups, according to the institute’s website.
Torrez said he has not asked for an emergency injunction to prohibit the NMCG from attending protests while the case is litigated.