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Does Law Aid Officers, Or Is It Abused by Them?

By T.J. Wilham
Journal Staff Writer
      Copyright © 2008 Albuquerque Journal

    You could be arrested for having a party.
    Interrupting a police officer could land you in jail.
    And if you videotape a crime scene on a public street, you could be cuffed, thrown in a police car and charged.
    All of this has happened in Albuquerque: people engaged in what appear to be legal acts arrested and charged by police for “refusing to obey” a lawful order.
    But are the orders lawful and is refusing to obey them a crime that is jokingly referred to in legal circles as “contempt of cop”?
    It’s not a joke, of course. In addition to a possible trip to jail that night, refusing to obey carries a fine of up to $500 plus up to 90 days in the slammer.
    But the charges frequently wash out when they hit the courthouse.
    In 2007, Metropolitan Court judges dismissed 70 percent of the refusing to obey charge in 517 arrests made by police and sheriff’s deputies in Bernalillo County under a city ordinance called “resisting, obstructing or refusing to obey an officer.”
    The top reason: 45 percent of the dismissals were due to a lack of prosecution, the officer was unwilling to proceed with the charges in court, a lack of probable cause or proper reports were not filed. Thirty percent of the dismissals were due to a plea agreement in which the defendant pleaded guilty to other charges.
    “This law they are arresting people under is unconstitutional,” said Albuquerque attorney Ray Twohig. “Police in Albuquerque think they can give whatever order they want. You have constitutional violations happening in Albuquerque wholesale.”
    The city ordinance that gives police the authority to arrest someone who disobeys them was adopted in 1973, a year before the city charter was written. Part of the ordinance says a person can be charged if he or she refuses to obey or comply with any lawful process or order given by a police officer. Anyone found guilty could be sentenced to up to 90 days in jail.
    Albuquerque Police Chief Ray Schultz said the ordinance is needed because officers face situations when they have no choice but to arrest someone to avoid violence.
    For example, police might respond to a domestic violence call in which both sides are arguing, and the situation will likely escalate. Officers will ask one side of the dispute to leave in order to avoid violence. If they don’t, they get arrested.
    Many of these cases get dismissed.
    Overlapping laws
    Defense attorneys like Twohig question why the ordinance is needed since New Mexico already has a law called “resisting, evading or obstructing an officer.”
    Twohig said the city ordinance gives police too much authority and is much more broad than state law, which does not include the word “obey.”
    “Police in Albuquerque have more power than officers in any other jurisdiction in the state,” said Twohig, who last year represented a Roswell city councilwoman who successfully fought her arrest under the state’s version of the law. “You have a whole lot of people being arrested in Albuquerque for ‘contempt of cop,’ and it seems to me this law encourages it.”
    Schultz acknowledged that sometimes it is questionable whether the order is lawful, but, he said, that’s what the courts are for.
    “The courts recognize it’s a tool that law enforcement has to use to separate parties or to get someone to do something they don’t want to do,” Schultz said. “Without that tool, it would ratchet it up to the next level, and it is going to result in physical violence or a serious crime as a result of the parties not being separated.”
    The ordinance does not explain what a “lawful order” is. According to legal experts, it’s a “gray area.”
    Retired Judge Woody Smith said that when he was on the District Court bench, he judged each case individually and always looked for whether someone’s constitutional rights were violated by the order.
    “You can’t define what a lawful order is,” said Smith, also a former prosecutor, Metropolitan Court judge and public defender. “It depends on the circumstances. Police have a lot of discretion, and lot of times it is determined after all of the facts are known.”
    Smith noted that he felt the law at times was “overused” and certain police officers tended to use it more than others.
    Schultz said most of the arrests are coupled with other charges. In the rare circumstances in which someone is only charged with refusing to obey, those arrests are closely scrutinized by supervisors who review the arresting officer’s report and criminal complaint to make sure there is enough probable cause.
    “A clear majority of the cases, had the person just left the area and done what they were being asked, they wouldn’t have been arrested,” Schultz said. “These charges are the result of someone saying ‘No, I don’t want to, I don’t have to.’
    “The officer just can’t leave — then the calling party would be upset at us for not intervening. This charge is used as a last resort. When the officer has no other option.”
    TV photographer
    The law was spotlighted last month when KOB-TV cameraman Rick Foley was arrested for refusing to obey an officer.
    Foley was covering a police standoff May 29 near Copper and Charleston NE when rookie officer Daniel Guzman told Foley to move to a different location, according to a police report.
    Foley at the time was some distance from the police cars blocking the street and was outside an area that had been blocked by officers.
    Shortly after Guzman told Foley he needed to move, the two exchanged more words and Foley asked Guzman to provide his name and badge number.
    A video captured by Foley’s camera shows the officer lunging at Foley. Foley was handcuffed, placed in the back of a police car and cited.
    An investigation into Guzman’s conduct is under way, while criminal charges against Foley are pending.
    Since then, Schultz has acknowledged that “mistakes” were made and has drafted a new policy on how to deal with onlookers. Guzman, meanwhile, has been paired with a veteran officer until the investigation is complete .
    Recent cases
    After Foley’s arrest, the Journal examined 36 recent arrests in which the defendant was charged only with “refusing to obey” an officer under the city ordinance.
    Some of those arrests include:
    n Nestor Pons Ocana, 47, was arrested May 4 after he interrupted an Albuquerque police officer. According to court records, Ocana was a passenger in a car that was stopped for a noise violation. The officer was citing the driver for the violation when Ocana told the driver not to sign the citation because the officer’s action was “racist.” The officer noted that he told Ocana to be quiet, but Ocana continued to yell, preventing the officer from hearing the driver. Charges against Ocana were dismissed due to a “lack of probable cause.”
    n Raymond Medina, 37, was arrested Dec. 29 because he refused to end a party at his apartment. Officers had responded to a noise complaint. When they arrived, police told Medina that he had to end the party. Medina said he would “keep it down,” but officers insisted the party was over and his guests had to leave.
    Medina refused, saying he didn’t want his guests to get DWIs. An officer then stuck his foot in front of Medina’s door, preventing him from closing it, and took him into custody. Charges against Medina were dismissed due to a lack of prosecution. Medina was never charged with violating the city’s noise ordinance. Even if he had been, city attorneys acknowledge, officers can’t force everyone to leave.
    n Antonio Serna, 39, was arrested Dec. 4 when he initially refused to let police into his house. The officers did not have a warrant. According to court records, officers were looking for Serna’s son in connection with a child abuse case. They went to Serna’s home looking for him. Serna told officers his son was not home. When officers insisted on searching Serna’s house, Serna responded that they needed a warrant and tried to shut the door. The officers said Serna was “preventing the possibility of further investigation.” The officers peeked in, saw his son and arrested both of them. Refusing to obey charges against Serna were dismissed because officers failed to file a report.
    Peter Simonson, New Mexico director of the American Civil Liberties Union, said his organization has received several complaints from people arrested under the city ordinance. The ACLU has successfully represented clients charged under the ordinance.
    He said he doesn’t think the law is unconstitutional, just APD’s interpretation of it.
    Simonson said he takes issue with Schultz’s theory of letting the courts sort things out.
    “It shouldn’t have to get to that point,” Simonson said. “It is up to the police to properly enforce a law like this and not rely on the court to correct their errors. People should not have to go to court to prove they were not violating the law.”
    Robert Saavedra decided not to prove his innocence.
    Saavedra and his friend were Downtown on Dec. 21 when someone shot his friend’s truck.
    They waited for several hours while police investigated. After awhile, Saavedra and his friend thought the investigation was over, so they started to get in the truck to leave, Saavedra said.
    Officers got upset and took Saavedra’s friend into custody for refusing to obey, he said. Saavedra, who was not in the truck, called his friend’s brother to tell him what was going on when officers told him to leave the scene and to get off the cell phone.
    Officers said in a criminal complaint that Saavedra took one step back, but proceeded to make a phone call and refused to move back on the sidewalk.
    Saavedra was then arrested and taken to jail with his friend.
    Saavedra decided not to fight the charges. He said he didn’t have enough money to hire an attorney. Instead, he said the officer told him that if he paid some fines and agreed to stay out of trouble, his case would be dismissed.
    According to metro court records, that occurred in 16 percent of the cases in 2007.
    “I didn’t back-talk him. I wasn’t mean. I just tried to explain that I was on the phone with my buddy’s brother so he could bond him out,” Saavedra said. “They didn’t want to listen. They just wanted to take someone to jail that night.”
    In Saavedra’s criminal complaint, the arresting officers maintained that Saavedra refused to leave the area despite being told several times to do so.
    Similar laws exist throughout the country.
    But over time, some jurisdictions have eliminated the laws because homeless advocates have challenged their use, said William Walsh, a former New York City police officer and director of the Southern Police Institute in Louisville, Ky. Walsh said a similar law was in place when he was a police officer in New York City in the 1960s.
    He said that officers mainly used the law when they needed to arrest someone involved in a riot, and he cautioned against getting rid of such laws.
    “Police officers get called to disputes, and they are expected to settle them. They can’t walk away,” Walsh said. “The only tools they have is their own persuasion, their use of force and the law.”
    Resisting, obstructing or refusing to obey an officer consists of either:
    (A) Knowingly obstructing, resisting or opposing any officer of this state or any other duly authorized person serving or attempting to serve or execute any process or any rule or order of any of the courts of this state or any other judicial writ or process; or
    (B) Resisting or abusing any judge, magistrate or peace officer in the lawful discharge of his duties; or
    (C) Refusing to obey or comply with any lawful process or order given by any police officer acting in the lawful discharge of his duties; or
    (D) Interfering with, obstructing or opposing any officer in the lawful discharge of his regular and affixed duties.