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Making an arrest record disappear

ALBUQUERQUE, N.M. — The two women leaned over a gurney set up in the small kitchen of a woman who had attempted suicide.

Albuquerque police officer Regina Sanchez wanted the woman to stop kicking and punching.

Christine Stump

Christine Stump

Paramedic Christine Stump wanted the patient’s handcuffs off and for Sanchez to back off and stop agitating the patient.

Sanchez instead pushed the patient’s hand, face and arm into the gurney.

Stump grabbed the police officer’s arm and pulled it away from the woman, and Sanchez stumbled.

“Let go of my patient,” Stump, who was working for Presbyterian’s ambulance company, said to Sanchez, according to a police report.

Regina Sanchez

Regina Sanchez

“Don’t you ever pull me down or touch me,” Sanchez replied.

“This is my scene,” the two yelled at each other.

Neither woman was injured, though Sanchez said she was “upset.” The scene that November 2008 night was cleared, and everyone went about the rest of the often intersecting shift.

But the next day, a team of police arrested Stump at her home on a charge of battery on a police officer. The then-40-year-old was booked into jail.

The case ran the risk of pitting the two agencies against each other, and Stump was calling foul over what she felt was an unjust arrest that would affect her future.

The city quickly pulled the case out of court and into mediation, where attorneys for police, Stump and Presbyterian agreed to dismiss it – accompanied with the city’s promise to support Stump’s effort to expunge the incident from any database.

Eight years later, she is still fighting to get the incident wiped from her record and to keep it out of any public database or background search.

A district judge ruled there was no authority in state law allowing the arrest record to be expunged, pointing out that the records are a trail of accusations against government employees as well as a record of alleged conduct and are thus important for public access.

Stump appealed, and the city has now said it doesn’t support expungement in any case, even though it doesn’t oppose it in this particular instance.

The case, which last month was taken up by the Supreme Court, has grown into a fight larger than the scuffle that started it.

When – if ever – can a New Mexico court erase court and arrest records?

How can the public scrutinize government or prospective employees if incidents can just be erased?

And should an individual like Stump have to bear for life the social stigma and economic impact of a criminal record?

New Mexico’s law

Legislators have tried to answer these questions at least 11 times since 2005, succeeding four times to pass a bill only to have Gov. Bill Richardson veto two and Gov. Susana Martinez veto the others, according to the Court of Appeals opinion in the case.

Richardson acknowledged the burden of an arrest record but said there is a more important public interest in arrest and conviction information.

“For example, an employer who hires a driver should be able to compile a full, clear picture of a prospective employee’s driving record, including whether that person has a history of DWI or other vehicular crimes,” he wrote at the time.

And Martinez at the time noted that she opposed “a bill that would censor access” to public records. A former district attorney, she pointed out that crimes such as sexual assault and domestic violence are very difficult to prosecute, despite the guilt of the party, because the assailant pressures the victim and convictions aren’t secured.

It would be bad policy if those arrests could simply be made to disappear.

The vetoes leave New Mexico as one of nine states without a broad expungement law, though the New Mexico law has some exceptions.

State law allows a minor’s first drug offense to be expunged, as well as records wrongly attached to the names of victims of identity theft.

DNA samples taken by law after a felony arrest can be removed from the system if the case is dismissed.

And the state Supreme Court authorized a singular case of expungement for a group of 32 people charged with contempt of court by a Taos judge in the heat of anger. In that case, often referred to as the Concha case, the Supreme Court felt it had the authority to expunge the records, because they were created by the court and the case was an extraordinary exception.

But Stump is asking the court to expunge a record created by a separate agency, the Albuquerque Police Department.

Stump’s plea

Stump’s first attempt to get her record expunged came before 2nd Judicial District Judge Clay Campbell.

In a back-and-forth between Campbell’s court and the Court of Appeals, Campbell finally ruled in 2015.

He said in his ruling that he was sympathetic to Stump’s case, especially because there was an agreement that the charges be erased, but that he believed judges lacked the authority to expunge records.

He did attempt to give Stump some relief by ordering any agency that holds a record of the incident to attach his ruling so future employers could know the circumstances surrounding the charge.

The Journal pulled Stump’s arrest record with the Albuquerque Police Department, Bernalillo County Metropolitan Detention Center and Metropolitan Court and none of the records includes attachments per Campbell’s order.

No party involved could explain why the attachments are missing, and Campbell could not comment because the case is pending.

Stump has since left her job as a paramedic and teaches yoga in Albuquerque.

Sanchez remains at the Police Department, where she was found to have violated federal policy in using a police database for personal reasons and then lied about it.

Stump did not return calls seeking comment, and her attorneys, Jocelyn Drennan and Edward Ricco, refused multiple requests for comment.

But they are continuing her fight.

In early 2014, they appealed Campbell’s ruling to the Court of Appeals. The city then met that appeal with a filing, saying the city never promised Stump that her case would be expunged, only that it supported her attempt, and that the city’s view is that courts don’t have the power to expunge.

The Appeals Court sent the case straight to the state Supreme Court, asking justices to give a clear answer.

Sides in the case

Stump’s attorneys say in court records that she deserves to have her records erased because as a private citizen she shouldn’t have to carry along an unjust arrest record that could hurt her employability. They also argue that New Mexico judges do seem to have power to expunge as they did in the Concha case from Taos.

They say this isn’t a case of public safety or concern; they say it’s a private citizen with an unjust arrest record.

The city says it agrees that Stump’s case is innocuous from a public safety standpoint but that doesn’t matter, because the broader issue of expunging public records is potentially dangerous.

City Attorney Jessica Hernandez, who was not with the city when the mediation settled, says that the case poses “significant questions of law” and that if a court were to grant Stump’s request, it would be creating a power for judges that legislators and a governor have not agreed to create.

“Public access to felony arrest records is an important issue with significant public policy implications. Current New Mexico law does not allow expungement of the arrest record in this case. Any change in that law should not happen through the courts, but should go through the full legislative process to ensure public input and careful consideration,” Hernandez said in a written statement to the Journal .

Advocates for open government are also weighing in.

The Foundation for Open Government, which opposed all legislative attempts to expand the state’s expungement law, was cleared on Wednesday by the Supreme Court to submit a friend-of-the-court brief, a document submitted by people not a party to the case that provides analysis and opinions about an issue the court can use to make a decision.

Greg Williams, lead attorney for FOG, said that, although he sympathized with Stump and says he can understand if she feels she got a “raw deal,” the consequences of the case are too great to ignore.

“FOG’s position is that courts don’t have the power to order other governmental entities to destroy public records, and even if they did have that power, it’s not in the public’s interest to destroy public records,” Williams said.

“In this case, Ms. Stump made some serious allegations about supposed wrongdoing by an APD officer, and it’s not appropriate for public records that have allegations about law enforcement to be deleted as if they never existed in the first place.”