This past Tuesday, a citizen journalist – whom we’ll call “Mike” to protect his full identity – was cop watching in Las Cruces, New Mexico.
The New Mexico cops he filmed from the Mesilla Marshals department harassed him, trying to prevent him from cop watching on a public sidewalk, and accused him of committing a crime as you can see in the raw video below.
But when Mike tried to file an internal affairs complaint two days later at the Mesilla station house, everything went wrong.
A Mesilla Marshall retaliated with arrest on the spot.
The Mesilla Marshal arrested Mike for attempting to petition his government, and to record the process of doing so, blatantly violating his First Amendment rights and charging him with “concealing his identity”.
Mesilla Marshals also seized Mike’s camera – for which he has provided a reciept to PINAC – in clear violation of his New Mexico Constitution’s Bill of Rights too.
After the citizen journalist posted the original video of the police harassing him onto YouTube, one of the commenters suggested that he contact PINAC and this report is based on that conversation.
New Mexico Cops Liberated From Four Square Mile Town Only Two Years Ago
Last Tuesday, the citizen journalist – who publishes all of his videos to YouTube as “Schmike Mike” – was surprised to see cops from the small town of Mesilla, just south of Las Cruces, working well north of the town limits of their jurisdiction. Interstate 10 is the physical border between the two towns.
According to a jursdictional agremeent signed in October 2013 called a Memorandum of Agreement (“MOA”), the 2 square mile town of Mesilla’s police are allowed to venture into other parts of Doña Ana County (“DAC”) under a strict policy of single approval operational supervision by a DAC Sheriff’s approval.
Local residents voiced concern that the MOA would give Mesilla Marshals too much opportunity to roam freely through the neighboring town at the time of ratification, which apparently have come true.
Without specific authorization in advance, these cops are supposed to get, apprehend a suspect they know to be outside their town’s boundaries, they have no other reason to be in the middle of the next town.
The history of Mesilla provides a little background about the tiny four square mile town, with a colorful history which was founded before Las Cruces by a small group of Americans in 1850 who rejected the Constitution and America and didn’t want to live under their rules.
Not much has changed since.
The Gadsden Purchase of 1853 wound up absorbing the town, the rest of southern New Mexico and the state of Arizona too.
The tiny town Mesilla was the site of two Civil War battles and the capital of the Confederate Territory of Arizona for a time too.
It was the pinnacle of the tiny town’s existence.
The town of Messina didn’t have space for a train right of way or rail station in 1880, while the neighboring town of Las Cruces offered it for free. Las Cruces has grown to a city of 100,000 while Mesilla has remained around 2,000 people in the subsequent 135 years.
So, the citizen journalist Mike wondered aloud in our discussion why “would searching the ground for something be a theft report? It looked like these officers were trying to find something, not someone.”
The citizen journalist stood recording on a public sidewalk the entire time – which is wise because it’s public property where he’s solidly allowed to be while filming – while recording the officers, and even managed at certain points to use his video recording to verify his location which we’ve embedded below in Google Street View.
Mesilla Marshalls Demanded Identification Without Reasonable Suspicion
After the citizen journalist recorded the Mesilla cops for just a few minutes, Officer Salas approached Mike and they exchanged pleasantries.
The officer asked Mike what he was doing and then said, “Oh, you’re filming me? What’s your name?” to which the citizen journalist calmly replied, “I’d rather not answer that question.”
As the officer continued questioning Mike, the cop asked if the citizen journalist was, “concealing his ID from me” which under New Mexico law only pertains when someone gives a fake name to an officer or disguises themselves specifically to obstruct an investigation.
The totality of the circumstances appeared to be a citizen lawfully recording the police conducting an investigation unrelated to his person and under questionable jurisdiction.
It certainly wouldn’t justify a demand for identification under the long established case law under the famous court case Terry vs. Ohio, which also authorizes the “stop & frisk” stops characteristic of “broken windows” policing.
Mike had every right to remain anonymous.
He asked if he was being detained, and the cop said, “at this point, no,” so the citizen journalist said, “Thank you!” and walked away.
Then the New Mexico cop walked to his partner and retrieved a “Mag Light” flashlight, the heavy black flashlight which some officers use as a weapon – in this case the officer was more concerned about restricting the citizen journalist’s ability to video record the situation at hand.
The exercise of illegal prior restraint of a citizen’s right to free speech and to record their police in public doing their jobs isn’t the job we hire police to perform.
In 1976 the Supreme Court ruled in Nebraska Press Association vs. Stuard that, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”
However, there’s no specific Supreme Court ruling about the use of flashlights to interrupt protected phtographer’s free speech, yet.
Cops have no reason to behave this way in America.
Because if the Mesilla Marshals have nothing to hide, why are these police worried about being recorded?
Mesilla Marshals Resume The Interrogation
When the officer returned, he resumed his sidewalk interrogation, “What’s your name partner?”
Mike’s immediate response was, “Am I being detained?” yet again.
The officer then asked, “Do you have to be detained for me to get your information? Is that the question? Is that what it is?”
The citizen journalist then asked, “Are you impeding my first amendment right to record police?” as the officer went to great lengths to disrupt his recording by pointing the flashlight into his cellphone camera.
The officer responded that the citizen journalist was, “impeding his investigation” even though the cop couldn’t articulate a reasonable suspicion of any crime up until that point – the standard set within Terry vs. Ohio to affect a temporary detention and search for items other than evidence of a crime.
The Supreme Court ruled on a similar case, where a person was yelling at an officer in Houston and then arrested for the claim of “Impeding an investigation” and they opined in City of Houston v. Hill 482 U.S. 451 (1987):
“Although the preservation of liberty depends in part upon the maintenance of social order, the First Amendment requires that officers and municipalities respond with restraint in the face of verbal challenges to police action, since a certain amount of expressive disorder is inevitable in a society committed to individual freedom, and must be protected if that freedom would survive”
The cop had nothing.
Recording is a far less distracting activity than actively shouting at the police, and protected by a high standard of the First Amendment when intended as a pre-cursor to expressive behavior – which Mike’s YouTube account clearly shows would be the place to publish his journals.
The Mesilla Marshal continued to bother Mike anyhow.
Suddenly, an investigation which involved searching for something on the floor evolved into an investigation of the citizen journalist’s identity.
Then the officer accused the citizen journalist of theft.
It’s not clear that any reasonable circumstances existed to make that accusation, since the officers were there before the citizen journalist arrived – and he thought it was of unusual interest mainly because these cops were a long way from their home jurisdiction.
The officer said “Theft, that’s why I’m here.” which amazingly tracks with the very narrow reasons why a Mesilla officer may go to other parts of Doña Ana County, New Mexico – but its terms specifically require the officers to know who they are searching for prior to leaving jurisdiction, and permission from a Sheriff too.
Mike replied that, “I’m just recording my interaction with police,” when the officer asked, “Why is that?” and the citizen journalist answered, “because it’s my first amendment right.”
The officer continued asking for identification and Mike revealed his first name to the officer.
The cop immediately radioed for another patrol unit.
Mike asked the officer for his name and badge number which he revealed to be “Salas #315.”
Two and a half minutes after the cop began interrogating Mike, he asked if he was free to go and left around the 5:30 minute mark of the video.
Citizen Journalists Should Ask If They Are Free To Go, And Sometimes Leaving Is The Best Option
Mike’s retreat to a more visible space on the corner was another smart move, and he continued to record the encounter – always important – and during the next three minutes, the police actively attempted to interfere with his recording activities using their flashlights.
Clearly, whatever they’re investigating couldnt’ve have been too urgent for them to take a break to violate Mike’s civil rights to record.
Ten minutes into the video, the Officer Salas walks up to Mike and records him standing on the sidewalk, while holding his flashlight in a position to block the citizen journalist’s clear recording of the incident.
That video undoubtedly should be a public record since it was made by the officer while on patrol.
Salas got right up into Mike’s face and resumed his requests for identification.
When Mike asked him why he was using the flashlight, the officer replied that he was, “using the light to identify his face,” so the citizen journalist moved his camera high in the air saying, “ok, my face is over here,” to which the officer replied, “ok, well now it’s on your camera.”
That de facto admission by a police officer should be fruitful if Mike retains counsel and seeks relief in the courts for a First Amendment violation, because the officer’s own admission that he’s trying to censor a recording won’t look good in court.
Mike said that he’ll be, “filing charges,” to the officer who replied to, “feel free to do that.”
After a minute, the encounter terminated when another officer retrieved Officer Salas and they walked down the block to join two other officers. The citizen journalist continued to record the officers from a safe distance.
Three minutes later, the cops returned with their flashlight, walked past Mike and to their cars parked across the street.
The fateful result of Mike’s attempt to file an Internal Affairs complaint is documented below.
First Amendment Right to Petition Government Protects Citizens Who Complain About Official Police Activity
The Mesilla Marshals perpetuated a chilling assault on the First Amendment right to petition our government for redress and arrested Mike for making a complaint this past Thursday.
After the incident, Mike returned home, and went the next day to the Mesilla Marshals’ station to file a complaint. Unfortunately, it’s only open from 9am to 3pm on weekdays.
The diligent citizen journalist then returned to the Mesilla Marshals office the following day, this past Thursday and brought his video camera to make a complaint against the officer for prior restraint for intentionally shining their flashlights into his lens to impede recording his encounter with Officer Salas.
That’s when things went wrong.
An antique schoolhouse houses the Marshals and other public space for the town of Mesilla, and when Mike entered the station and knocked on the door, an officer came out.
He told the officer that he wanted to file a complaint, and the Mesilla officer looked him, looked at the camera and invited him into the station.
Mike then asked for procedures to file a public records request of the video created by the Mesilla Marshals of him recording the scene, and the officer responded that their office doesn’t use body cams.
However, Mike observed one of the officers using a cellphone to make a recording, which logically would become a public record if he made it on public time in performance of his police duties. Often times, these types of records may be temporarily withheld from release during an active investigation, but the New Mexico cop never claimed any exemption.
Instead, according to the citizen journalist, the officer began aggressively questioning Mike, asking for his complete name. Mike replied that he would rather not answer questions.
It’s best at that time for any citizen journalist to mention the 5th Amendment specifically, or to say that they have a right to remain silent. Court’s love to hear that in recordings.
The New Mexico officer then told the citizen journalist that recording the police is a crime.
A heated discussion ensued, the Mesilla Marshal explained that he’s gotten juveniles convicted for the “crime” of recording the cops.
Mike asserted his First Amendment right to record the police, whereupon the officer then claimed that they were in a restricted location.
Then the cop handcuffed Mike.
No other officers were present during the exchange, the only existing record is on Mike’s Cannon R-400 camcorder
The Mesilla Marshals seized Mike’s camcorder, handcuffed him, and cited him with a notice to appear for allegedly violating New Mexico statute 9.10.250 “Concealing Identity”:
It is unlawful for any person to conceal his true name or identity or to disguise himself with intent to obstruct the due execution of the law or with intent to intimidate, hinder or interrupt any public officer or any other person in a legal performance of his duty or the exercise of his rights under the laws of the United States or of this state.
Mike was stuck in handcuffs for 30 minutes, with handcuffs
The officers confiscated the camcorder which cost about $256 and Mike was so scared that he left without getting a receipt.
Mike’s follow up video documented the deep grooves left in his wrists from the cuffs.
The Mesilla Marshals violated Mike’s Section 10th protection under the New Mexico Constitution Bill of Rights which states:
Sec. 10. [Searches and seizures.] The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.
The same seizure probably runs afoul of Mike’s Section 20 protection enumerated under the New Mexico Constitution’s Bill of Rights which reads, “Sec. 20. [Eminent domain.] Private property shall not be taken or damaged for public use without just compensation.”
From everything we’ve seen, the police had a strong motive to hide any activities which violated their jurisdictional right to enforce the law outside their own minute town of Mesilla and into the 50 times larger city Las Cruces next door.
Now a citizen journalist has to fight for his freedoms, and a police department is exposing its tiny tax base to the liability of yet another civil rights lawsuit by a citizen vs. government.
It should result in criminal charges of Malicious Prosecution to the Mesilla deputy who made the arrest too.
The Tuesday Video:
Another video of Mesilla Marshals by Mike: