Cop Secret

As he tried to do so, a third officer, Anthony Currey, arrived. Currey had discovered a warrant for Armijo's arrest, he told the 52-year-old as the two stood in the driveway.

"He didn't say anything to me about why I was being arrested," Armijo says now, sitting in his lawyer's Santa Fe office. "He just cuffed me and stuffed me."

Currey had the wrong guy.

The name on the warrant: John Armijo, Phillip’s brother—who, by the time Currey motored toward the Santa Fe County jail on March 8, 2016, had been dead more than a year.

Phillip Armijo says he showed Currey and jail staff three picture IDs. The officials were unmoved.

"I slept on a concrete slab for three days," he tells SFR. "I missed my midterms at Santa Fe Community College. I didn't have money for a phone call, and no one would listen to me. It was degrading."

Someone finally paid attention to Armijo at his first court appearance on March 10, 2016. State District Judge T Glenn Ellington wrote that he had been "mistakenly arrested," noted the two-and-a-half-year disparity between the brothers' birth dates and ordered Armijo "immediately released."

For more than a year, a host of questions has swirled for Armijo: Did the Santa Fe Police Department investigate Currey? Was he disciplined? Had he been in trouble before?

"I don't know if anyone ever said anything to him at all," Armijo says. "And I'd sure like to know if he's done this to someone else, but I don't."

That's because the city of Santa Fe won't tell him—or anyone else.

Rick Sandoval, Armijo's lawyer, put the city and Santa Fe County, which operates the jail, on notice six weeks later, filing a notice of intent to sue that doubled as a de facto citizen complaint against Currey and others. Now, they're suing in federal court for alleged civil rights violations.

In January, SFR requested under the New Mexico Inspection of Public Records Act (IPRA) all complaints filed against SFPD officers in 2016. The city provided 24 official complaints, notices of claim and other correspondence alleging misconduct by officers from October 2015 to December 2016, including Armijo's account of false arrest.

Citizens' allegations ranged from rudeness and wrongful apprehensions to reckless driving and filing false police reports to violent arrests resulting in life-threatening injuries.

But the city refuses to say whether any of the officers involved were investigated or disciplined. Similarly, the city denied our requests for the disciplinary histories of the officer who fatally shot a man in Eldorado in April and for the police union president, an SFPD sergeant, who came under fire earlier this year after an SFR story about his incendiary Facebook posts disparaging Muslims, transgender people and others.

Santa Fe officials believe such information amounts to "matters of opinion in personnel files," meaning the city can keep them secret under IPRA, Assistant City Attorney Zach Shandler tells SFR.

He says state and federal case law and language in the attorney general's IPRA compliance guide put the city on solid legal footing. Further, releasing information about discipline for any city employee—not just police officers—could lead to defamation lawsuits. To prevail, employees would have to show that the city made a false claim.

Records of discipline are true accounts of government action, Shandler concedes, but that wouldn't necessarily stop someone from suing the city.

"We want to eliminate that risk," Shandler says.

Good government and transparency groups in New Mexico say the city's legal rationale is tenuous. They point to Santa Fe County, Bernalillo County, the city of Albuquerque and other governments around the state that take a 180-degree opposite view of the law. Officials in those places release disciplinary records and have come out none the worse for it.

"If a law enforcement officer was fired or suspended or investigated or put on administrative leave, that's a fact," says Greg Williams, board president at the nonprofit New Mexico Foundation for Open Government (NMFOG). "That's not a matter of opinion."

Even beyond the legal question, which Williams concedes is open for interpretation, hiding disciplinary records chips away at public trust, especially with police officers.

"All they are doing, in this era where there's all this police mistrust, is creating more of it," he says. "The problem with secrecy is it creates suspicion, and it causes doubt as to whether the police department is being run correctly."

Shandler declined to comment on the public policy implications of Santa Fe's practice. He referred SFR to others within city government.

No one from the police department would talk.

Police Chief Patrick Gallagher refused multiple interview requests through a city spokesman, who sent a statement that did not address any of the questions SFR had for the chief.

Sgt. Troy Baker, head of the Santa Fe Police Officers Association, did not respond to nine voicemails left on his cell phone.

And Matt Ross, the city spokesman, did not respond to our request to interview Mayor Javier Gonzales or another official who could answer the questions Shandler would not.

City Councilor Chris Rivera, a retired Santa Fe fire chief who chairs the Public Safety Committee, says police officers have a difficult, dangerous job, and they are entitled to certain privacy rights. He says he understands the city's position.

"But for the public, I'm sure they'd want as much transparency as possible," Rivera tells SFR. "And from a policy perspective, at some point in the process—and I don't know what point that is—that disciplinary information should become public."

Across the nation, state laws governing the release of police disciplinary records run the gamut, according to a 2015 analysis by the public radio station WNYC. The station found that only 12 states make such records generally available to the public, while 23 keep them strictly confidential, including large states such as New York and California.

Records in the remaining 15 states were available to varying degrees. New Mexico lies in that messy middle, but it appears to be the only state in which agencies rely on some version of a "matters of opinion" claim to keep citizens in the dark about police discipline.

Across New Mexico, law enforcement agencies vary in their interpretation of whether IPRA compels them to release any information about officer discipline. SFR surveyed 11 police and sheriff's departments; six provide at least some information, the other five do not.

For example, Lt. Keith Elder tells SFR that the Sandoval County Sheriff's Office maintains secrecy because discipline is a "personnel matter." But the Doña Ana County Sheriff's Office considers the fact of officer discipline to be releasable.

"Anything that is considered a matter of opinion is not subject to inspection," says Kelly Jameson, Doña Ana County Sheriff's spokeswoman. Asked whether that includes officer discipline, Jameson replied: "No. That's a fact."

For years, officials in Albuquerque struggled with that question. The city's practice on releasing officer discipline bounced like a pinball from case to case until 2012. That's when then-Albuquerque City Attorney David Tourek, under pressure from journalists and others, authored an inter-office legal memo saying information about final discipline for city employees should be released. "While such disclosures may result in certain claims being brought against the city, there is no strict statutory prohibition against the disclosure of the fact of employee discipline."

The years of selective secrecy in Albuquerque led, in part, to a breakdown in internal accountability that became a focal point in a US Justice Department investigation that found systemic civil rights abuses by police in New Mexico's largest city.

Williams, the NMFOG board president, says the decision to release officer discipline in Albuquerque has had no "adverse effect" on the department there. "It has only had a positive benefit in terms of effective policing."

Albuquerque's more recent practice sets up a stark juxtaposition with Santa Fe's secrecy.

APD officer Johnathan McDonnell crashed into a woman's vehicle while en route to another call in April, killing her 6-year-old son and critically injuring her daughter, 9. Weeks later, the Albuquerque Journal published a story based on records released by the city that showed McDonnell had been reprimanded or suspended for a handful of "preventable crashes" and an unauthorized pursuit during his nine years on the department.

The release of records and subsequent story enabled a public debate, Williams says, "which is why it's especially important that we have this information."

Conversely, SFPD officer Jacquaan Matherson ran a red light and broadsided a Jeep on Feb. 15, 2016, according to records released to SFR after the request for citizen complaints. Both men in the Jeep were injured, and they have sued the city.

But whether Matherson has a history of crashes or discipline remains concealed.

"My question for the city of Santa Fe would be this: Why don't you want to release that information?" Williams says. "Why is it that you think the actions of your police department are not something the public should know about?

"Police officers are accused all the time of excessive force or wrongful conduct, and there is unfortunately a certain unease in the public about how our police departments are carrying out their jobs. A lack of transparency makes that so much worse."

Rivera, the city councilor, says flagging public trust in police has been less of an issue in Santa Fe than in cities like Albuquerque. For the most part, he says, citizens believe SFPD has been forthcoming about its dealings.

"I think people believe they're doing a good job because we haven't had those huge issues, those concerns about abuse and things like that," he tells SFR. "But from a council perspective, it would still be nice to be as transparent as possible."

Rick Sandoval, Phillip Armijo's lawyer, says he understands the difficult positions officers often face on the job. He used to defend police and corrections officers, first as an assistant city attorney in Albuquerque, then as in-house counsel at the state Risk Management Division.

But in his client's case, the city's recalcitrance has led to exactly the sort of mistrust Rivera hopes to avoid in Santa Fe.

When Sandoval approached the city attorneys about settling Armijo's claims, they told him officer Currey did nothing wrong in arresting Armijo on his brother's three-year-old warrant for failure to appear in court. Currey's police report does not mention Armijo's insistence that the officer had picked up the wrong man.

Sandoval says city attorneys declined to commit their defense of Currey to paper in "some crappy letter."

"That's outrageous to me," Sandoval says. "It's not arguable that the officer did something wrong. But their response raises a lot of questions for me. There should have been an internal affairs review here. If there wasn't, why not? And if there was, there should have been an effort to get both sides. My client was never interviewed, so if there was a review, it was neither complete nor competent."

Can Santa Fe citizens follow up on a complaint against an officer to find out whether there has been discipline or even an investigation? No, says Shandler, the assistant city attorney.

"That's the way the law currently is in our interpretation, yes," he tells SFR.

The lack of consistency from department to department on releasing officer discipline records and the vagaries in state statute and case law have endlessly frustrated journalists, citizens and even city officials in New Mexico.

The "matters of opinion in personnel files" language in IPRA is broad enough for a wide range of interpretations, says Doug Carver, executive director of the nonprofit New Mexico Ethics Watch. Moreover, cities and counties around the state have used a seminal state Court of Appeals decision known as Cox vs. the Department of Public Safety as a reason to hold back disciplinary records.

The court held in Cox that citizen complaints are public record and that whether they are kept in an officer’s personnel file makes no difference. But the opinion, written in 2010 by Appeals Court Judge Linda Vanzi, suggests that disciplinary records could be kept secret, although that was not an issue before the court in Cox.

Shandler says the city of Santa Fe relies on a different state court decision and another case decided in federal court for its legal analysis.

Shandler's interview with SFR last month spotlights the difficulty.

He says disclosure "could be" against the law. But moments later, asked whether the city of Albuquerque was breaking the law by releasing police discipline, he says: "I would doubt that they are breaking the law."

Carver says the Legislature could easily clear up the confusion.

"The Legislature can step in and say exactly what it means—what is a matter of opinion and what is not," he tells SFR. "They could do it in a sentence if they wanted that kind of openness."

Transparency around police conduct is particularly important, Carver says, agreeing with Williams of NMFOG.

"We grant them the right to use deadly force, we grant them the right to break traffic laws when they're racing to the scene of a crime," he says. "If there is a history of an officer repeatedly coming under question, the public has a right to know."

The Legislature has been unwilling to take up the cause, Carver says, because of an abiding deference to law enforcement.

"It's politically explosive," he says, "so you'd be running right up into the teeth of that, and no one wants to have that fight."

Another possibility would be for Attorney General Hector Balderas to step in and clarify whether officer discipline is public record. As the top enforcer of the records law, his office publishes the IPRA compliance guide. More recent editions of the guide include phrases from the Cox case that cities have read as cover to keep disciplinary records secret.

Shandler says the guide forms part of Santa Fe's rationale for withholding such records. But he said an advisory opinion from Balderas would either solidify or sway the city's position.

In an interview with SFR on May 31, Balderas would not say whether he believes the fact of officer discipline amounts to a "matter of opinion." During the interview, he handed the telephone to Deputy Attorney General Tania Maestas, who said both cities that release police discipline and those that don't are following the law.

Taking the phone back, Balderas said he would issue guidance on the matter if a city or state official made a formal request.

The complaints obtained by SFR take a variety of forms. Some were submitted to SFPD's internal affairs division by people who believed they'd been wronged. Some are notices of forthcoming litigation. Some are handwritten. Others are formal documents typed up by attorneys.

Although police officers were not named in every complaint, three of them—Matthew Martinez, John Boerth and Paul Ytuarte—were mentioned in several, with Martinez and Ytuarte each appearing in three.

All three officers were named in a grievance report filed by a woman named Patricia López-Hernandez, who alleged that officers entered her home without permission and mocked her English language skills during an aggressive SWAT raid in April 2015.

López-Hernandez' listed telephone phone number was disconnected, and neighbors at her listed address said she had moved away.

One man who filed a complaint against Ytuarte tells SFR he's now fearful of leaving his home after the officer arrested him on suspicion of assault on an officer and resisting arrest at the Chili's restaurant on Cerrillos Road in December 2015. In the complaint, Andrew López claims the arrest was unlawful and led to his detention at Santa Fe County jail for nearly 48 hours.

Less than four months later, López' charges were dismissed with prejudice for "lack of prosecution," state court records show.

López believes SFPD launched an investigation into Ytuarte's actions, but he does not know whether it has been closed, whether the officer was disciplined or how to follow up with the department.

López now fears he's being targeted for harassment by police. He was arrested again in September 2016 on suspicion of aggravated assault and battery—his only other criminal charge besides a few traffic violations—but those charges were also dismissed a few months later.

In response to SFR's emailed inquiry into López's allegation of targeted harassment, SFPD Deputy Chief Andrew Padilla replied with blank copies of official complaint forms. He acknowledged that the investigation resulting from López first complaint was closed, but did not elaborate.

SFR has sought disciplinary records for officers who were not the subjects of complaints, too.

After our February story about the Facebook posts by Sgt. Baker, the police union president, we requested his disciplinary records. SFPD confirmed that he was under investigation for the social media posts, but refused to provide information about past discipline.

Baker was fired in 2010 following an excessive force claim, but he won his job back from a city review board. The discipline only became public through the hearing process.

SFR also requested disciplinary information about officer Leonardo Guzman, who shot and killed 28-year-old Andrew Lucero in Eldorado following an extended car chase far outside the city limits on April 29. Body camera footage from another at the scene indicates Guzman fired after Lucero jumped into his patrol car and accelerated forward into a tree, pinning Guzman's leg against it.

The department denied SFR's request the day after we sent it, saying the records contained "personnel matters."

SFR asked whether the denial confirmed the existence of past discipline for Guzman. In response, Deputy Police Chief Mario Salbidrez wrote in an email that "the department does not release such documents if they exist," and said it was incorrect to interpret the denial as an acknowledgement of the existence of Guzman's disciplinary records.

Asked again whether such records exist, SFPD did not respond.

Williams, Carver and Councilor Rivera all say the city's refusal to release records could cast a pall over officers with clean disciplinary records who become, for whatever reason, involved in controversial incidents.

For all Phillip Armijo knows, that could be the case with officer Currey, who arrested him in his sister's driveway last year. But as with Ytuarte, Guzman, Baker and all the others, Currey's history with the department remains under lock and key.

Armijo says the arrest set his life back in several ways: He now suffers from post-traumatic stress and a fear of being thrown in jail again. And he's receiving bills for $1,800 from Santa Fe Community College for the courses he had to drop after missing exams during his incarceration.

"I was getting Bs in English and Spanish," he says. "I was doing really well, no problems."

Armijo still wants to know whether Currey's past might have given SFPD a prior indication of what happened last March. Regardless of the city's practice, his lawsuit means a federal judge will decide whether he will get to know.

Santa Fe Reporter