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Is Civic Plaza a school? City’s gun ban says so

Copyright © 2020 Albuquerque Journal

Francisco Grady, left, and La’Quonte’ Barry were detained by police as they carried holstered firearms while attending a protest at Civic Plaza in Downtown Albuquerque last month. (Roberto E. Rosales/Albuquerque Journal)

The 40-year-old kindergarten teacher was helping set the stage for a Black New Mexico Movement protest at Civic Plaza one Sunday morning in mid-July, his gun holstered across his chest.

A short time later, Francisco “Frankie” Grady was handcuffed and then cited for having a firearm on city property. He was subsequently charged with unlawful carrying of a deadly weapon on school premises, a fourth-degree felony that now follows him on his record, even though there is no school in sight at Civic Plaza.

He’s not the only one – another organizer La’Quonte’ Barry, 31, was also detained and was facing the same charge before prosecutors dismissed both cases last week. A third man – part of an opposing protest that same July 19 morning – was also detained but does not appear to be facing charges.

In that case, Grady and Barry, both Black men, appear to be the only two people charged after an administrative instruction the city issued following a shooting at a protest earlier in the summer. The instruction bans guns from Civic Plaza, the convention center and parks, saying the sites are sometimes used by schools and are “sensitive places.”

Prosecutors filed motions to dismiss the cases against the two men, in part raising concerns over “the constitutionality and the legal basis for the charge,” and 2nd Judicial District Attorney Raúl Torrez has asked the state attorney general to weigh in on the issue. In a letter sent Monday, he asked Attorney General Hector Balderas for an opinion on whether Civic Plaza can be considered a school site if no school activities are taking place at the time and whether the city has overstepped its authority to regulate firearms.

A spokesman for the Attorney General’s Office said the office is still reviewing the constitutionality of the policy.

Grady and Barry said they had no idea they were not allowed to carry guns on Civic Plaza.

Citations filed against Grady and Barry say that they were told to leave or secure their firearms and that they refused.

But they said they were trying to announce the gun ban to the crowd, about five minutes after they were notified, when officers handcuffed them and took them into custody.

Grady, whose name is misspelled as “Grody” in court records, said he was shocked when he learned he was being charged with taking a gun to school, saying he would never have taken a weapon to a campus. The charge is especially problematic for his job as a teacher.

“I went back to Civic Plaza, and I was for the life of me looking for a school, and I could not find one,” he said, chuckling ruefully.

The City Attorney’s Office, meanwhile, said in a statement that Torrez’s letter is “a little late” and that the city is already “fleshing these questions out in court,” a reference to ongoing litigation in a lawsuit filed against the city for banning firearms at community centers last year.

“We have a duty to keep kids safe,” the statement from the City Attorney’s Office says. “This ban helps us do that, so we’ll continue to prohibit guns from city spaces that young students use. Especially as students adapt to distance learning, safe public spaces become even more important, and we are working with (Albuquerque Public Schools) to expand our partnership on the use of City facilities for school purposes.”

Francisco Grady, left, and La’Quonte’ Barry, center, talk to an Albuquerque police officer during the July 19 Black New Mexico Movement protest. They were detained for carrying holstered guns. (Adolphe Pierre-Louis/Albuquerque Journal)

No school in sight

The administrative instruction at issue, No. 5-20, was signed by the city Chief Administrative Officer Sarita Nair on June 19 – four days after a protester was shot and seriously injured during a confrontation between protesters and counterprotesters at a demonstration for the removal of the Juan de Oñate statue from the Albuquerque Museum grounds.

The instruction expands the prohibition of guns to city parks; any property or facility used for a food service program for children; the Albuquerque Regional Sports Complex and city golf courses that are used for public school sporting events; the Convention Center, which is used for graduations; and Civic Plaza, “which educators and students from Amy Biehl Charter High School regularly use for physical education activities and in which playground equipment is located.”

It follows an administrative instruction issued last year that declared firearms are prohibited from the city’s community centers, which offer services to 200,000 children a year, and the city’s health and social service centers, which are used for the University of New Mexico Maternity & Family Planning clinic. That instruction is the basis for a lawsuit by New Mexico Patriots Advocacy Coalition and Albuquerque resident Lisa Brenner that alleges it violates the right to bear arms.

In the Civic Plaza case, Grady’s attorney, Ryan Villa, and Barry’s attorney, Nicole Moss, said they interpret the state law that bans firearms from school premises – including any public property where school-related activities are being performed – as applying only when those events are taking place. Although their clients’ cases have been dismissed, they could be refiled.

“The fact that they were taking a statute that was written really to protect schools and keep firearms off of school property, and the city was trying to apply that to Civic Plaza – immediately there were concerns that it was overreach by the city and the statute really just could not apply to Civic Plaza at the time Mr. Barry and Mr. Grady were arrested,” Moss said. “There were no school activities occurring at the time. There were no schoolchildren – it was a Sunday morning.”

DA Torrez asks the same question in his letter to Attorney General Balderas, writing, “Can Civic Plaza or a city park be transformed into a ‘school premises’ based on past school activities such that the carrying of a firearm is a fourth degree felony even when there is no school-related activity being conducted at the time?”

Torrez also asked whether the city is regulating the right to bear arms beyond what is permitted under the New Mexico Constitution and whether the state’s trespassing statute allows the city to ban firearms from public parks.

A man wearing camouflage fatigues and carrying a gun attends a Protest for Freedom rally at Civic Plaza a couple of days before Francisco “Frankie” Grady and La’Quonte’ Barry were detained. No one was cited or detained at the Protest for Freedom rally. (Roberto E. Rosales/Albuquerque Journal)

Double standard?

Not lost on anyone is that both Grady and Barry – Black men and organizers for the Black New Mexico Movement – were detained and charged although armed demonstrators attending a “Protest for Freedom” at the plaza in opposition to the state’s public health orders a couple of days earlier were not.

Video and pictures from the earlier rally show that several people were armed, including a man wearing full camouflage standing onstage as a speaker thanked police.

For Grady, it was ironic that the initial intent of the administrative instruction seemed to be, at least in part, to prevent heavily armed members of the New Mexico Civil Guard from showing up at protests and heightening tensions.

“And yet the Civil Guard is allowed to stand on that very same stage – that we were arrested from – with an AR-15 standing behind a (speaker) in front of APD,” Grady said. “But I’m sure it had nothing to do with the color of my skin.”

Gilbert Gallegos, an Albuquerque Police Department spokesman, said officers had approached about 10 armed people at the Protest for Freedom and told them to put their guns away, and they complied. He said signs announcing the firearm ban had been torn down, so officers were reluctant to detain or cite anyone that day.

In late July, about a week and a half after Grady and Barry were detained, Gallegos said APD and other city departments were taking steps to ensure they were enforcing the gun ban consistently. He said they put up new signs and instituted procedures in which officers order a person to remove the firearm or leave the premises and explain that if they continue to possess a deadly weapon they may be cited or arrested. People have no less than 10 minutes to comply with the order, he said, and after two warnings the officer will “take police action to include arrest.”

Barry said the July 19 protest marked the second time he took a gun to a demonstration – the first time being the protest for the removal of the Oñate statue. That time, he said, he arrived just after the shooting.

“The reason for me bringing my gun out there is because of the New Mexico Civil Guard,” Barry said. “They come up and want to be a threat to us. Cowboys for Trump, they’re out there with guns on their hips raising flags that aren’t for us. … Our people are intimidated by those things.”

He said his 8-year-old son keeps asking why he was arrested and is now afraid of the police. And he stressed that the Black New Mexico Movement, formerly Black Lives Matter New Mexico, was not responsible for rioting Downtown a couple of months ago and has been engaged in peaceful protests around the city for months.

“The stereotypes of us being a negative people – we are not,” Barry said. “We promote love in our community. That is what we are about.”

Administrative Instruction 5-20 by Albuquerque Journal on Scribd

Letter From DA Torrez by Albuquerque Journal on Scribd

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