An ABQ Free Press investigation found New Mexico's process of probing police misconduct is inconsistent, illogical and rife with the potential for abuse that isn’t tolerated in other states.
BY DENNIS DOMRZALSKI
If you’re a cop in New Mexico associated with a blog that criticizes your police department’s top commanders you will have your license to be a police officer revoked, and your career as a cop will be over.
But, if you shoot a fellow officer nine times from five feet away in a drug bust that you apparently weren’t prepared to be part of, nothing will happen and you’ll go on being a cop.
If you’re a female officer who complains to your supervisor that a lieutenant took cell phone pictures of your breasts at a training exercise, management will move to revoke your license to be a cop.
But if you’re the male lieutenant who took those pictures, no one will move to revoke your certification and you’ll be promoted to deputy chief.
If you’re an instructor at a police training academy and question the validity of the licenses of some of the academy’s instructors you’ll face decertification proceedings.
But if you help a murder defendant go free because you disobeyed court rules, you’ll keep your license.
These are just a few examples of the discrepancies in the discipline and certification review process in New Mexico that allows chiefs of police and sheriffs to decide who can – and can’t – be cops in this state.
An ABQ Free Press investigation found New Mexico’s process of probing police misconduct is inconsistent, illogical and rife with the potential for abuse that isn’t tolerated in other states.
A cop license
In New Mexico, as in other states, police officers have to be certified, or licensed, or they can’t work. If an officer is decertified in one state, his or her career as a cop is basically over anywhere.
Cops here can have their licenses revoked for several reasons, including conviction of any felony, committing acts which indicate a lack of good moral character or which constitute dishonesty or fraud, and excessive use of force or brutality.
While New Mexico police chiefs are required by state regulations to report instances of conduct by their officers that could lead to decertification, there is nothing – no penalties for failing to file, nor any incentives to do so – that guarantees that they’ll actually report misbehaving police for discipline.
The decision to file or not file against an officer rests solely with the discretion of the chief or sheriff. There is no uniformity in the process within agencies around the state, our investigation found.
The process in New Mexico has led cops who have committed seemingly minor infractions of department policy to face decertification, while officers with much more egregious offenses have never been brought before the licensing board.
Critics of New Mexico’s process to revoke police officers’ licenses said the discretion afforded to police chiefs the freedom to protect friends, while allowing them to punish or retaliate against critics.
The body that licenses police in this state is the New Mexico Law Enforcement Academy Board, which has only two people working full-time on decertifications for the 130-plus law enforcement agencies in New Mexico. The board’s employees have no investigative authority.
The NMLEA can, however, send cops notices that it will begin license suspension proceedings against them if the agency is made aware of misconduct or felony indictments.
An agency source told the Free Press that it is often notified by local prosecutors that officers have been indicted. That was the case in the indictment of former and convicted Rio Arriba County Sheriff Tommy Rodella. The U.S. Attorney’s Office notified the NMLEA of Rodella’s indictment on felony charges, the source said.
“There is definitely favoritism in what a chief will or will not report, said attorney Tom Grover, an attorney and former APD police officer. Grover represents the officer who faced decertification after questioning the validity of licenses of instructors at the Albuquerque Police Department’s training academy.
“There are some [police officers] that are more equal than others,” Grover said. “Some are treated with kid gloves.”
Attorney John D’Mato, who represents the former APD officer whose license was revoked after APD officials learned that she was associated with a blog that criticized department management, said New Mexico’s process for decertifying officers is a “mess” and “in need of a high degree of maintenance and repair.”
On Oct. 5, the Free Press emailed the New Mexico Department of Public Safety, which oversees the NMLEA, a list of 12 questions about the officer decertification process. As of Oct. 15, after daily emails and phone calls to the agency’s public information officer, the department did not provide answers to those questions.
A one-time leader
In 1960, New Mexico became the first state in the U.S. to allow for the decertification of police officers. And while that was a groundbreaking accomplishment, it was somewhat hollow because the state’s process to revoke an officer’s license has always been weak because of statutory defects and a persistent lack of manpower.
But New Mexico isn’t alone. Many states require police chiefs to report de-certifiable conduct to their licensing boards and lack a way to enforce that requirement, said Michael Becar, executive director of the International Association of Law Enforcement Standards and Training, a trade group for police licensing agencies.
“Every state falls under their own regulations and they are all over the board,” Becar said. “Very often the various [licensing] agencies will have some type of requirement … but there often is no penalty, and that makes it really tough.”
Roger Goldman, a professor emeritus at the St. Louis University School of Law, has been studying the police decertification process for two decades and is considered the nation’s leading expert on the subject. In a 2012 paper, Goldman wrote that licensing agencies “must have a combination of benefits and consequences to get police chiefs and sheriffs to report de-certifiable conduct.”
He also wrote that “there need to be penalties to address the persistent lack of compliance by police chiefs who fail to report and investigate misconduct.”
In a telephone interview with ABQ Free Press, Goldman said states need mandatory reporting rules and “carrots” to encourage police chiefs to file against officers. “The carrot works better, and you need to figure out what the carrot would be,” Goldman said. “Some states are much more aggressive than others, and they are all over the place on this issue.”
In New Mexico, the record shows, there is neither a carrot nor a stick.
States that do it right
According to Goldman, there are three states – Arizona, Florida and Oregon – that have aggressive processes that could serve as a model for other states on how to revoke a bad cop’s license.
Arizona Peace Officer Standards and Training Board Executive Director Lyle Mann said police chiefs in his state are required to report to his agency every instance of officer misconduct, as well as any time an officer is fired or leaves a department for any reason. Failure to do so can result in malfeasance or misfeasance charges against a chief, Mann said.
Police chiefs are required to report any separation of an officer from their department because the state wants to prevent bad cops from moving from department to department, and to prevent police chiefs from hiring “gypsy cops,” as Mann calls them.
Playing a role in chiefs’ reticence to report misconduct is a sense of fraternalism among police. Goldman said many chiefs don’t want to ruin the officers’ careers. Often they will just fire a cop and not report the misconduct, which allows a cop to find a job, he said.
“We try to ensure that everyone knows why a person left a particular agency. We get informed every time somebody leaves an organization,” Mann said.
The Arizona POST, as it’s called, also has the authority to investigate allegations of police officer misconduct on its own. And, in Arizona, any citizen can initiate a decertification proceeding against a cop, Mann said. That’s possible in New Mexico although it appears few people know about it or take advantage of it.
Under Arizona law, there are nine grounds on which to revoke an officer’s license, including the illegal use of marijuana or other illegal drugs, drinking on the job, commission of a felony, malfeasance, misfeasance or nonfeasance in office, and “any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.”
Arizona officers facing revocation proceedings are entitled to hearings, Mann said. Arizona decertifies between 35 and 40 officers a year, Mann said. The Arizona POST has 24 employees, 10 of whom are in the compliance/decertification division.
In Oregon, police officers can be decertified for many reasons, including a criminal conviction, lack of moral fitness, lying, sex on duty and drinking on the job.
That state’s Department of Public Standards Safety and Training decertifies about 100 officers a year, said Eriks Gabliks, director of the department’s administrative division. The agency has investigative authority and the 12-person agency can file against cops on its own.
In addition, citizens can file complaints against Oregon cops as well. Police chiefs are required to report instances of de-certifiable conduct and to turn over any documents the licensing agency requests. If chiefs fail to report officers, the DPSST can fine the police department.
Gabliks said his agency has never had to fine a police department because most police chiefs want to get bad cops out of the profession.
“The agencies want to make sure that the people who have violated the public trust aren’t certified,” Gabliks said. “We don’t want them to go to work in another state. We are not going to give our bad apples to someone else. We realize that we have to police our own. These are positions of public trust, and we want to make sure that people who are wearing a gun and a badge and who come into your house during an emergency are above reproach.”
ABQ Free Press tried to inquire about how many police officers have been decertified in New Mexico, but did not receive responses to our inquiries.
In some cases of alleged police misconduct, the rules actually are enforced. According to state law, the NMLEA director is required to file a notice of intent to suspend an officer’s license upon being notified that a cop “has been arrested or indicted on any felony charge.”
That has been done in two high profile cases.
The first involved former Santa Fe County Sheriff’s Deputy Tai Chan who shot and killed a fellow deputy after a night of drinking in a Las Cruces bar in October 2014. The NMLEA said Chan has been sent a notice of the intent to suspend his certification. A spokesman for the Santa Fe County Sheriff’s department said department officials started the decertification process against Chan late last year. Chan has been charged with first-degree murder. His trial is scheduled to begin in March 2016.
The second case involves the two APD officers who fatally shot homeless camper James Boyd in March 2014. Both officers, Keith Sandy and Dominique Perez, have been charged with second-degree murder and have been sent notices of contemplated license suspension by the NMLEA, according to the agency’s records.
Dennis Domrzalski is an associate editor at ABQ Free Press. Reach him at firstname.lastname@example.org. Dan Klein is a retired Albuquerque police sergeant and contributor at ABQ Free Press.
Array of Misdeeds Boggles the Mind, Yet No Action
If you’re a female APD officer who complains about a superior taking pictures of your breasts, you’ll face decertification, and your superior will be promoted.
In March 2012, APD Officer Debbie Heshley was ordered to the police academy to undergo additional training after a complaint was sustained where she slapped a handcuffed prisoner.
While at the academy, in civilian clothes, Heshley discovered that then-Lieutenant William Roseman was taking pictures of her on his cell phone, apparently of her breasts.
Heshley complained about Roseman’s conduct to her superiors, especially the fact that he had allegedly shown the pictures to male members of APD’s command staff. Then-APD Chief Ray Schultz filed an LEA 90 [decertification] complaint against Heshley with the New Mexico Law Enforcement Academy Board over her excessive-use-of-force case.
The board ruled in Heshley’s favor, finding no use of excessive force. Heshley later sued APD and Roseman in federal court alleging a violation of her civil rights and retaliation. A judge has ruled that the case can move forward.
Roseman was later promoted to deputy chief, APD’s second in command. No one at APD has moved to revoke Roseman’s certification, even though taking pictures of a female officer’s breasts and showing them to other officers could be considered an act indicative of a lack of good moral character.
Reporting irregularities at the Albuquerque Police Department can get you dragged before New Mexico’s police licensing board.
In October 2013, then-APD Police Academy Instructor John Corvino notified the NMLEA Board of training irregularities at the Albuquerque Police Academy. An uncertified instructor was teaching “intermediate force” and “ground control” courses to two dozen police officers who became certified instructors in the same courses and who later taught about 100 cadets.
But because the original instructor wasn’t certified to teach the courses, the two dozen cops he taught couldn’t be certified to teach.
Corvino also told his APD superiors about the training issues. Rather than act to correct the certification problem, APD launched an internal affairs investigation of Corvino. APD Chief Gorden Eden eventually suspended Corvino for 80 hours without pay for insubordination and for bringing the department into disrepute.
But it didn’t end there. Eden also filed an LEA 90 against Corvino. The NMLEA Board refused to suspend Corvino’s certification. Corvino later retired from APD and has since filed a whistleblower lawsuit against APD, accusing its officials of retaliation.
If you’re an APD cop, you had better not criticize department management. APD Detective Dawne Roberto was terminated by the department in July 2013 after being accused of being associated with a blog, Eye on Albuquerque, a website that for years has been harshly critical of the APD command staff.
After leaving APD, Roberto was hired by the Bosque Farms Police Department. Eden later filed an LEA 90 against Roberto’s certification, saying she lied when she denied being an administrator for the blog.
The LEA board, over the strong protests of the Bosque Farms Police Chief Greg Jones, revoked Roberto’s certification. She has appealed that decision to state District Court.
In January, APD Lt. Greg Brachle critically injured his own detective, Jacob Grant, by shooting him nine times inside a car from less than five feet away during a $60 drug bust that went horribly wrong.
Brachle, according to police reports about the incident, hadn’t attended a morning briefing about the upcoming bust and might not have been prepared for the situation.
As of Sept. 1, APD had not filed an LEA 90 on Brachle for the shooting. NMLEA rules say that officers can be decertified for “committing acts of violence or brutality which indicate that the officer has abused the authority granted to him or her as a commissioned law enforcement officer in the state of New Mexico.”
The Free Press emailed APD spokesperson Celina Espinoza on Oct. 9 asking about the department’s policy regarding LEA 90 filings and why it filed against some officers and not against others. As of Oct. 15, Espinoza had not responded.
Even felony charges against one of its officers can’t move the Santa Fe Police Department to go after that officer.
SPD Lt. Jason Wagner was charged in February with four felony counts of fraud for allegedly falsifying time cards to make it appear he was working the beat when he was actually at home.
The alleged crimes took place in late 2013 and Wagner resigned in 2014 when confronted about the alleged fraud by then-Santa Fe Police Chief Ray Rael. In February 2015, Wagner was rehired by then-Chief Eric Garcia, who has since resigned.
As of Sept. 1, there had been no LEA 90 filed by any Santa Fe police chief against Wagner. A city of Santa Fe spokesman did not return several phone calls from ABQ Free Press asking about Wagner’s situation and why no LEA 90 had been filed. It appears that Wagner remains employed by the Santa Fe Police Department. He has been bound over for trial, but no trial date has been set.
Botch a murder trial in Grants by blatantly disobeying court rules and you can still be a cop.
That was against court rules because Marquez was a witness in the case, and witnesses aren’t supposed to be in the courtroom or otherwise hear testimony before they’re called to testify.
As a result of Marquez’s behavior, Marquez’s testimony – he was the lead homicide detective in the case – was suppressed and the defendant was acquitted.
No one from the Grants Police Department has filed an LEA 90 against Marquez. However, in July, the family of the murder victim filed an LEA 90 against him. Grants Police Chief Craig Vandiver did not respond to at least three phone calls from the Free Press as to why the department had not filed against Marquez.
Former APD Chief Ray Schultz and members of his command staff have been accused by three different government investigations of potential criminal wrongdoing in connection with APD’s $2,000,000 contract with TASER International for lapel cameras.
APD Chief Eden hasn’t submitted an LEA 90 on Schultz or any of the command staff officers named in these investigations. Because of APD’s spokeswoman Espinoza’s non-responsiveness, we haven’t been able to find out why.
Who Polices the Police?
The decision on whether to revoke a police officer’s license in New Mexico rests with the New Mexico Law Enforcement Academy. Members of its board of directors are:
New Mexico Attorney General Hector Balderas (chair)
Sgt. Jamie Quezada, Las Cruces Police Department
Chief Chris McCall, Hobbs Police Department
Chief Pete Kassetas, New Mexico State Police
Sheriff Wesley Waller, Curry County
Chief Daren Soland, Navajo Department of Public Safety
Scott Key, deputy district attorney, Otero County District Attorney’s Office
Elisabeth Miller, Las Cruces, and Kelly Burnham, Las Cruces (citizens-at-large)