Judge tosses militia's counterclaim against DA - Albuquerque Journal

Judge tosses militia’s counterclaim against DA

Albuquerque Police Department officers take armed members of the New Mexico Civil Guard into custody after a June protest to remove the Juan de Oñate Statue in Old Town. During the demonstration, one man was shot by another man who is unaffiliated with the group. (Adolphe Pierre-Louis/Albuquerque Journal)

Copyright © 2021 Albuquerque Journal

There’s been a lot of movement in a lawsuit against a New Mexico militia, including a motion to drop the suit and a legal complaint that alleges public records law violations by the 2nd Judicial District Attorney’s Office.

In July, the 2nd Judicial District Attorney filed a lawsuit against the New Mexico Civil Guard, an armed militia group that was at the Juan de Oñate statue protest in June and other demonstrations throughout the summer.

A state district court judge has thrown out counterclaims filed by the Civil Guard that alleged constitutional violations by the DA’s Office. The group has since filed a motion to dismiss the case, arguing that it never broke any laws.

And last week, a Civil Guard member filed an Inspection of Public Records Act lawsuit against the DA’s Office, accusing the office of withholding certain records related to the suit.

The lawsuit against the Civil Guard alleges that the group is unlawfully acting like law enforcement and that the New Mexico Constitution dictates that only the governor can activate a civilian militia. Lawyers from the Georgetown University Law School Institute for Constitutional Advocacy, as well as Albuquerque firm Peifer, Hanson, Mullins & Baker, are assisting the DA’s Office in the case.

The Civil Guard filed counterclaims against the DA’s Office in August, alleging their guns were seized illegally during a protest calling for the removal of the Oñate statue near the Albuquerque Museum. That protest ended with a man being shot and critically wounded by another man who was not affiliated with the militia. Police took militia members’ guns while investigating the shooting.

Last month, 2nd Judicial District Court Judge Clay Campbell dismissed the counterclaims because the guns were eventually released to their owners, making the counterclaims moot.

Brandale Mills Cox, a spokeswoman for the DA’s Office, said the office will file responses to the motion to dismiss and the IPRA lawsuit in the near future.

“We are encouraged that the court recently dismissed the counterclaim against the District Attorney and we remain committed to pursuing this litigation to prevent extremist groups like the New Mexico Civil Guard from violating the law and endangering the public,” Mills Cox said in an email.

An attorney for the Civil Guard could not be reached by phone on Monday.

The Civil Guard’s motion to dismiss the lawsuit says none of the members impersonated police officers and no members of the public were harmed by their actions.

“In the meantime, the State abuses the civil discovery process to harass these individuals for their political views (or, more correctly, their perceived political views) and to conduct a fishing expedition for possible criminal charges in the future,” Elizabeth Harrison, an attorney for the Civil Guard, wrote in the motion.

Craig Fitzgerald, one of the defendants in the lawsuit, filed his own lawsuit against the 2nd Judicial District Attorney’s Office last week, alleging the office has violated the state Inspection of Public Records Act.

Fitzgerald requested emails and other correspondence regarding the terms and conditions in which the Georgetown lawyers and Peifer, Hanson, Mullins & Baker agreed to take part in the case. Fitzgerald says the DA’s Office withheld certain records due to lawyer-client privilege and attorney work product exemptions, but there was no description of the withheld records and no redacted documents were provided.

“The refusal to separate exempt from nonexempt information on the records withheld violates Defendant’s statutory obligations and constitutes a wrongful denial of the nonexempt information,” Fitzgerald’s lawsuit says.

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