Shaun Griswold

(New Mexico Source) Critics of militias and armed far right groups are cheering a New Mexico state court ruling that prevents leaders of the “New Mexico Civil Guard” from acting as or organizing a paramilitary group, but they worry that the court victory was far from complete.

A ruling this month by the Bernalillo County District Judge Eliane P. Lujan, banned the group from organizing and acting, “as part of a military unit” and “assuming law-enforcement functions” by using force at protests, demonstrations or public events. The case stemmed from a June 15, 2020 shooting at a protest in front of the Albuquerque Museum. The New Mexico Civil Guard had been acting as de facto law enforcement officers trying to stop protestors from toppling a statue of Spanish colonizer Juan de Oñate,

The ruling against the militia is not a total victory for opponents of such paramilitary groups, however, since it was based on the group not following technical court procedures, known as a default judgment, rather than about its actions on that day.

In this instance, the group would not meet court deadlines and could not show proper representation by an attorney. There was no ruling on the specific nature of what the group was accused of doing, and a default judgment means it is harder to cite this case as precedent against future efforts by a court to stop extremist or militia groups in New Mexico.

Rachel Carroll Rivas, a director of research with Southern Poverty Law Center’s Intelligence Project, still sees the default judgment as a victory. She also has seen an effort by groups like the militia, refuse to participate in court proceedings. While the judgment against the militia will not prevent other groups from organizing, it sends a message that laws should be followed.

“When you then don’t engage lawfully it is not going to be accepted within our court system, within our government and hopefully within the public,” she said. “I do agree that it doesn’t mean that people will be unable to gather or to associate or to come together, but it puts parameters around being legally recognized as an entity while engaging previously in unethical and illegal activities.”

In July 2020, Bernalillo County District Attorney Raúl Torrez filed the case against the New Mexico Civil Guard, arguing that the group’s stated purpose to maintain peace at public demonstrations for racial justice and police reform was contradicted by the full body armor and large weapons they carried.

“NMCG’s coordinated, armed, and uniformed presence at public events results in intimidation and creates a chilling effect on the exercise of First Amendment rights to address matters of public concern,” the original complaint says.

They were armed with large weapons and dressed in full tactical gear while shoving people attempting to get close to the statue during the protest.

Eventually the crowd gained access and the militia group moved away from the monument.

At some point during this time, demonstrator Scott Williams was shot during a fight with another individual.

Bryce Provance stands in front of a statue of Juan de Oñate during a demonstration to remove the monument on June 15, 2020. Provance, a founder of the New Mexico Civil Guard, has been ordered to no longer pose as law enforcement at public events or protests. (Photo by Shaun Griswold / Source NM)
Bryce Provance stands in front of a statue of Juan de Oñate during a demonstration to remove the monument on June 15, 2020. Provance, a founder of the New Mexico Civil Guard, has been ordered to no longer pose as law enforcement at public events or protests. (Photo by Shaun Griswold / Source NM)

Santa Fe resident Steven Ray Baca, 33, was arrested. He is still facing charges for allegedly shooting Williams, who survived his injuries after a long hospital stay. Although Baca and the New Mexico Civil Guard were not affiliated, the DA used the Oñate shooting as evidence of the hostile environment created by the New Mexico Civil Guard.

Before and after the Oñate shooting, the militia group made appearances at several rallies and caused distress for event organizers, who said the group harassed them multiple times, the DA said.

Carroll Rivas said the New Mexico case is the first time a local district attorney has used the state’s militia laws to successfully file an injunction stopping a group from organizing or participating in public events.

This means people with like-minded views as the New Mexico Civil Guard are watching closely to see how this case plays out and if it will set any legal precedent for future actions or organizing.

“I think that the anti-militia movement is very much paying attention to the Oath Keepers case, on Jan. 6, they are paying attention to the case in New Mexico,” she said. “Because it is a legal case against a group, it pushes it a little too far for these folks who are willing to engage on the ideas but don’t want to be held responsible for actually following through with them.”

Torrez is now running for Attorney General and his office took the judge’s order as a victory lap of sorts to demonstrate his fortitude. On Oct. 17, his office filed a motion to dismiss the remaining case against the militia and a court date on that ruling is set for Nov. 3.

However it’s unclear if Torrez would take this fight to the state level if elected AG. Torrez and his GOP opponent Jeremy Gay declined to answer questions about whether they would pursue statewide prohibitions on militias or extremist groups similar to the New Mexico Civil Guard.

One thing the judgment won by Torrez’s office does not do, however, is ban groups like this from existing. While the order limits the people who are listed as leaders of the New Mexico Civil Guard from organizing or creating a similar group, it doesn’t ban them from joining new or existing groups, according to University of New Mexico Law professor Joshua Kastenberg.

“I’ll start by saying this is a victory on a procedural matter, not a substantive matter. But having said that, and having read Torrez’s filings for the court, I’m absolutely convinced that he would have won on the merits of the case,” Kastenberg said.

He said a federal militia law passed in 1902 that grants a state governor authority over calling for militias is a clear path to show the court why the New Mexico Civil Guard was in violation of the law.

“They have held themselves out as a military entity at the state or county or federal level,” he said. “It really doesn’t matter without a specified elective office, serving as commander in chief and because they held themselves out as law enforcement, there’s no constitutional provision that allows them to be private law enforcement.”

Kastenberg said the new AG could take a case like this forward to try and enhance bans on militia groups in the state.

“I would hope (an AG) would try it at the state level, because we have a real problem in this country right now with voter intimidation, and minority intimidation, and how the federal government under the prior administration did nothing about it,” Kastenberg said.

Carroll Rivas said more guidelines by the state could prevent groups in New Mexico from using a loophole found by militia groups in Montana that have registered as private security firms to maintain their group actions. She says the groups are still active but taking a more secret and shielded approach to organizing.

“Because they were also de-platformed in the last two years by some of the social media companies online, Facebook as an example,” she said. “So you know, over 2000 militia movement-affiliated groups were taken off that page and that had a dampening impact at first. But I think they’re organizing more underground now.”