Tear gas grenade thrown by New Mexico deputy caused house fire that killed teen Brett Rosenau: investigators

The only possible cause of the fire that killed Brett Rosenau, 15, last month was a grenade thrown by a Bernalillo County Sheriff’s deputy who was a member of the SWAT team that July night, local fire officials said Friday.

The Fire/Arson Investigation Division of Albuquerque Fire Rescue ruled the fire an accident, and discussed preliminary findings during a news conference on Friday.

It is extremely likely that the fire was caused by a Tri-Chamber Flameless Grenade thrown through a front window of the house, said Jason Ramirez, captain of the fire/arson investigation division.

The grenade emits CS gas, commonly known as tear gas.

“So at this time, the classification of that fire is ruled accidental, and we were unable to eliminate that device being an ignition source,” Ramirez told reporters on Friday. “All other ignition sources in the room were eliminated at this point. So that’s where we’re at in the investigation. At this point in our investigation, there is no other possibility in that room of origin, in that area.”

The grenade landed on a mattress behind the window, said Albuquerque Police Commander Kyle Hartsock. Hartsock displayed a video showing the grenade smoking, and the mattress catching fire. The video shows police using a robot to pull the flaming mattress out of the house, but at that point the fire had spread.

Firefighters delayed entering the building because, Albuquerque Police Chief Medina has said, there were concerns Kelley was armed, and he was still inside. It remains unclear if police actually found any weapons on Kelley or in the home.

After Kelley surrendered, firefighters searched the house and found Rosenau’s body inside, Hartsock said.

Source New Mexico is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Source New Mexico maintains editorial independence. Contact Editor Marisa Demarco for questions: info@sourcenm.com. Follow Source New Mexico on Facebook and Twitter.

New Mexico militia compares itself to NAACP, prosecutors liken it to the KKK

A white supremacist militia under legal pressure from a local prosecutor in New Mexico is claiming protection under a 1958 court case that allowed the NAACP to keep its membership roster private from Alabama officials in order to protect members from violence and harassment.

The Bernalillo County District Attorney’s office, meanwhile, says the case is more like a 1987 one where a federal appeals court required the Ku Klux Klan to turn over membership records, albeit sealed from the public.

The dispute stems from a non-fatal shooting at a protest in Albuquerque in June 2020 at the statue depicting Juan de Oñate outside the Albuquerque Museum. Steven Ray Baca is charged with aggravated battery causing great bodily harm for the shooting, two counts of battery on two other protesters, and unlawful carrying of a weapon.

Baca is not apparently affiliated with the militia but video shows six New Mexico Civil Guard members armed with rifles surrounding him just after the shooting in an apparent attempt to defend him. District Court Judge Elaine Lujan ruled in September that those same militiamen could be held liable for impersonating police officers.

Prosecutors clear hurdle in suit against New Mexico Civil Guard

DA Raul Torrez and lawyers from the Institute for Constitutional Advocacy and Protection (ICAP) accused the militia of threatening public safety and encouraging violence, and asked the court to force the group to stop organizing and training as a private military unit.

The DA’s office argues that New Mexico law forbids private unregulated security forces because they are not accountable to anyone and their behavior creates a chilling effect on other people’s rights to free expression. The militia has ties to white supremacist and neo-Confederate organizations, and local Republican officials and candidates.

They’ve been trying since January 2021 to verify the militia’s membership and obtain its communications with others, including police, said Mark Baker, special counsel for Torrez’s office. But the militia, he said, has not handed over the records and won’t even verify the authenticity of publicly available records like their website, for example.

After Baker and NMCG’s attorney Paul Kennedy argued in a telephonic hearing last week, Lujan ordered the militia to respond to the state’s questions by Jan. 2. If Kennedy fails to meet that deadline, all of the underlying documents that prosecutors are trying to verify will be entered into the court record, Lujan said.

Kennedy argued that answering the state’s questions would violate his clients’ freedoms of association, and said prosecutors are trying to make NMCG’s membership lists public.

He pointed to case law from 1958 where the state of Alabama was trying to obtain membership information from NAACP, and tried to draw a connection to news conferences and public statements denouncing the militia by the district attorney Torrez, Albuquerque Mayor Tim Keller and New Mexico Gov. Michelle Lujan Grisham.

“There could hardly be a clearer example of a manifestation of public hostility than that statement by the mayor,” Kennedy said.

Baker argued that the NAACP case is irrelevant because the militia has not shown that exposure of its members’ identities would open them up to economic reprisals, loss of jobs, threats of physical coercion, and other kinds of public hostility proven in the NAACP case.

It’s been nearly a year since prosecutors first handed their discovery demands to the militia and they’ve only gotten back 12 or 13 pages, Baker said. In the NAACP case, the group fully complied with Alabama’s discovery requests, he said.

Instead, Baker argued that NMCG is in a similar position to the Ku Klux Klan in a 1987 case where an appeals court upheld an order requiring the KKK to produce membership lists in discovery, but not making those lists public.

Judge Lujan agreed and said the militia has not shown that its members would suffer similar consequences if their names are discoverable in the lawsuit. So she ordered the militia to hand over the membership information, with the understanding that it will be governed by a carefully-written protective order.

“We’ve dealt with some absurdities along the way and getting to the nature of these admissions is important for us to be able to move forward with the case and get it properly ready for trial,” Baker said.

With Rittenhouse acquittal, activists hear echo close to home

Prosecutors have received a “mishmash” of different answers from witnesses, Baker said, with some denying that NMCG is even a militia, and others identifying one defendant as a “captain” in charge of other members. That defendant said it was just a nickname among friends, Baker said.

The high profile of the NCMG case is due in part to its similarity to other cases around the country, with activists here comparing it to the trial of Kyle Rittenhouse in Kenosha, Wisc.

ICAP, the legal organization based out of Georgetown University Law Center helping prosecutors with the case, is asking a court in California to force social media giant Facebook to hand over records that would show who organized the militia’s Facebook page, which was apparently wiped when NMCG was banned from the platform.

ICAP previously represented the city of Charlottesville in a successful lawsuit against private militias at the Unite the Right rally in Charlottesville, Va., in August 2017.

Note: Editor-in-Chief Marisa Demarco recused herself from editing these stories out of a conflict-of-interest concern. Instead, this story was edited by Sean Scully, a national editor with States Newsroom.

Source New Mexico is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Source New Mexico maintains editorial independence. Contact Editor Marisa Demarco for questions: info@sourcenm.com. Follow Source New Mexico on Facebook and Twitter.

New Mexico imprisons people at a higher rate than some countries

A new report shows that New Mexico imprisons people at a higher rate than most U.S. states and every other country in the world, and there is little correlation between high incarceration rates and violent crime.
The Prison Policy Initiative found that New Mexico incarcerates 773 people per 100,000 total population, and if one imagines the state as an independent country, it would have the 19th highest per capita incarceration rate in the world.

“The incarceration rates in every U.S. state are out of line with the entire world, and we found that this disparity is not explainable by differences in crime or 'violent crime,' " the researchers wrote. “In fact, there is little correlation between high rates of 'violent crime' and the rate at which the U.S. states lock people up in prisons and jails."

“Compared to our allies around the world, compared to other major democracies, the United States and every U.S. state is completely unparalleled when it comes to our rates of incarceration," said Wanda Bertram, a communications strategist for the Prison Policy Initiative.

The researchers collected prison data from every level of the criminal legal system including state prisons, local jails, people held by the U.S. Marshals Service, people detained for immigration offenses, sex offenders indefinitely detained or committed in “civil commitment centers" after completing a sentence, and those committed to psychiatric hospitals as a result of criminal charges or convictions.

Antonio “Moe" Maestas, a Democratic state lawmaker representing part of Albuquerque, said New Mexico's high ranking does not surprise him.

“Incarcerating the most people does not equal less crime," Maestas said. “We do not have a Bureau of Prisons prison, so our 19th ranking is a true New Mexico ranking. We don't have two or three federal prisons that are skewing the stats."

He said there are many nonviolent offenders in New Mexico prisons, and that's why some lawmakers are trying to introduce reforms to focus on people who commit violent crimes.

Many other states in the Western U.S. rank higher on the list, including Arizona, Wyoming, Montana and Idaho. Still, Maestas said New Mexico is behind the curve on criminal justice reform even compared with its relatively conservative neighbor, Texas, which committed in 2006 to lower its prison population and close prisons. The Prison Policy Initiative found Texas' incarceration rate to be 840 people per capita, higher than New Mexico's.

“We have not made that same commitment in New Mexico, we have not closed a prison nor even committed to closing a prison," Maestas said. “We simply have not had a governor or an attorney general championing that cause even from a fiscal conservative standpoint."

We live in a country where a small number of people have really captured the power and the wealth to make other people's lives worse and more difficult. Mass incarceration is one way that plays out.

– Wanda Bertram, Prison Policy Initiative

Maestas said New Mexico has been slow in achieving criminal justice reform because the process is led by a citizen Legislature that only meets for a limited time each year, rather than a full-time Legislature. According to the National Conference of State Legislatures, only 10 states have full-time legislatures.

“We've accomplished a great many things, but you really need a governor or an attorney general to make those big institutional changes, and, and we have not had that yet as a state," he said.

Bertram said some people might see New Mexico's violent crime rate being higher than other U.S. states and conclude that justifies a higher incarceration rate. However, data show that New Mexico has a similar violent crime rate to Belgium but incarcerates people at a rate nearly eight times higher than Belgium.

“And yet, if you were to fly to Belgium today, which I hear is a nice place, you would not step off the plane and encounter an out-of-control violent crime situation," Bertram said.

Bertram said she hopes people see the comparison between the U.S. and other founding NATO countries and intuitively think how those societies are different from home. She said there are connections between incarceration rates and the availability of affordable housing, the quality of public schools, and the quality of publicly funded single-payer health care.

“We live in a country where a small number of people have really captured the power and the wealth to make other people's lives worse and more difficult," Bertram said. “Mass incarceration is one way that plays out. Now, there are other countries around the world that don't do things the same way and I think it's no coincidence that those countries see a smaller number of their residents locked up."

The state's prison population has decreased significantly in the last two years mainly because of bail reform and releasing prisoners to slow the spread of COVID-19. But in the next decade, the New Mexico Sentencing Commission expects prison and jail populations to increase.

“Those reductions in the prison population are not going to hold after the pandemic is over. I'm afraid that we're going to go back to business as usual, with very high incarceration rates," Bertram said. “And with these tough-on-crime politicians who benefit from people being scared, continuing to push through policies that lead to incredibly high incarceration rates."

One policy that keeps the state's incarceration rate high is an outdated probation and parole system, Maestas said. He said the state's Probation and Parole Division is “horrible" at distinguishing between when someone commits a true violation of their probation conditions and when they commit only a technical offense.

“That will continuously drive up the prison population, until we have probation reform," Maestas said.

In 2019, Maestas co-sponsored a bill which he called the most comprehensive probation reform in the country but Gov. Michelle Lujan Grisham vetoed it. Maestas said she did so because of political pressure from New Mexico Attorney General Hector Balderas and district attorneys across the state. The measure will not appear in the upcoming 30-day legislative session, he said, because the governor controls the agenda for that session.

The report comes in the middle of an election season in New Mexico, with Albuquerque mayoral candidates making crime their top campaign issue.

“Our new analysis of incarceration rates and crime rates across the world reveals that the U.S.'s high incarceration rates are not a rational response to high crime rate, but rather a politically expedient response to public fears and perceptions about crime and violence," the researchers wrote.

Bertram said she urges people, no matter who they vote for, to hold their elected officials accountable once they're in office.

“If you elect somebody who runs on a promise of locking up violent criminals and then one year, two years later, you realize that your public benefits to you and your family have not gone up, the situation for your children in schools is not better, your health care options are not better, then I think that's when the person that you've elected has used crime to scare you into voting against your own interests," Bertram said.

Bertram praised the Albuquerque City Council's recent decision to make public transit in the city fare-free because those kinds of universal goods will help keep more out of prison, she said. One of the main challenges for people leaving prison or jail who are trying to rebuild their lives is just getting around, she said.

“If you don't have a driver's license, you can't have a car, how are you going to get around, especially if you don't have a lot of money?" Bertram said. “Free public transit is really important for that. So I would encourage people who are in New Mexico to keep on supporting those kinds of initiatives, because that will help bring the prison population down."

Source New Mexico is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Source New Mexico maintains editorial independence. Contact Editor Marisa Demarco for questions: info@sourcenm.com. Follow Source New Mexico on Facebook and Twitter.