Copyright © 2016 Albuquerque Journal
The Muslim shopper wasn’t physically attacked and Albuquerque police say she wasn’t afraid she would be.
So charges will not be filed against the woman who went on a loud, racist rant against the shopper in the Smiths grocery store on Yale and Coal just before Thanksgiving.
One of the dozens of shoppers in the store that morning took a picture of the ranting woman as she screamed at the shopper wearing a hijab, a head covering worn by some Muslim women.
Employees stepped between the two women, ushering the yelling woman out to the parking lot, and then providing support for the shopper and walking with her to her car. Police arrived shortly after that, but the ranting woman had gone.
Albuquerque police said this week that they believe they know who the woman is. That woman is believed to have a history of mental illness and drug problems, and is known to frequent the area, Albuquerque police spokesman Fred Duran said in an email.
But, since police can’t be sure it was her and since the shopper “denied any other actions other than the slurs the female was yelling,” charges will not be pursued.
“Based on their (officers’) investigation of what the woman was doing, it was determined she was within her rights and that would fall under freedom of speech,” Duran said.
Barney Lopez, the shopper who caught the incident in a photo, said Thursday that he agrees with APD’s interpretation of the incident.
“It’s a very fine line between free speech and hate speech. There was no physical assault, so no crime,” Lopez said. “My response would be that we as people, we need to be the ones to police hate speech by saying it when we see it, by calling it out and by standing up for others who are being spoken to that way.”
Abbas Akhil, president of the Islamic Center of New Mexico, said the Muslim shopper, a young woman, is a fellow member at his masjid, or church.
The masjid, he said Thursday, sent a package of baklava to the Smiths grocery store and to its manager, Andrew Castillo, who helped intervene in the incident. And Akhil said he plans to write to the Smiths corporation to praise the staff.
“What was really heartwarming was the fact that the customers immediately came to her, and the Smiths staff escorted her to her car and saw her off,” Akhil said. “That’s really what I would expect from Albuquerque. Ours is a very multicultural city, and people are very generous and accepting.”
He also said he understands that the police and prosecutors can’t charge the ranting woman, even if her identity had been certain.
“The authorities have to follow the guidelines of the law. If you go around prosecuting everybody shouting a slur,” it’s not practical, he said.
The closest state charge to the case would likely have been assault, which in New Mexico is a petty misdemeanor defined as an “attempt to commit a battery upon the person of another; any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or the use of insulting language toward another impugning his honor, delicacy or reputation.”
The last portion of that statute is tricky and not often applied.
“In today’s society, this would need a definition as such that everyday activities offend a person that never did in the past. … An officer has to be able to articulate that the language was offensive to the degree of the law and that an individual was not merely saying they are offended to get someone into trouble,” Duran said.
Plus, he said, the woman they suspect of starting the disturbance likely has mental illness.
“A mental(ly) ill person is also not going to be held to these standards as they are not mentally aware of what they may be saying. Same with small children calling another child a name at school,” Duran said.
The District Attorney’s Office declined to comment on the incident or explain the nuances of the statute.