Form Over Function

Form Based Code... the name pretty much says it all. It's a building code whose major objective is to transform the area to which it is applied into a little slice of urbanism and The Almighty Alcalde, the City of Albuquerque Planning Department and a group of councilors led by Comrade, uh... Councilor Benton are doing everything within their power to make the Albuquerque of tomorrow an urban utopia.

So what are we talking about? An urban utopia resembles cities like New York and Downtown Chicago. They're based on walking, mass transit, and mixed use. In other words, lots of people in a small space, with high crime, high rent, high taxes, and every kind of pollution known to man, all in the name of reducing our carbon footprint. The truth is ordinary people have been leaving urban areas as soon as they could afford to for over 200 years. For most people, the American Dream is not a 600 square foot efficiency next to 250 of their closest friends.

The establishment of the Form Based Code zones is consistent with the health, safety, morals and general welfare of the City. The land use patterns realized by the Form Based Code will play an important role in improving Albuquerque’s social and economic quality of life. The new development pattern guided by the Form Based Code zones will reduce dependency on cars, increase opportunities to be physically active, and improve air quality by reducing hazardous vehicle emissions, currently the second largest source of carbon dioxide emissions in New Mexico. [emphasis added]

-Proposed FBC, General Provisions 3(b)

The Form Based Code places form above function. Current zoning sets rules for use. For example a factory can't be built next to your R-1 Northeast Heights home. In a FBC zone, there are few restrictions on what types of businesses and residences can be located in the zone. Zero lot lines and alleys are encouraged. In other words, all kinds of business and residential uses crammed into one small area - the only prerequisite being that the form is correct.

What they're saying is that if a development looks right and promotes the agenda of the planning department and the EPC then build it. Of course the agenda of any government agency is hard to predict and there's nothing more subjective than aesthetics.

Under the FBC there are no clear cut guidelines on what can be built where and developments are held hostage to a set of unpredictable arbitrary guidelines that can change with the political wind. The surest way to stifle economic growth and business development is to make the costs associated with investment unpredictable.

Albuquerque is a suburban city. Its growth was largely shaped and driven by the market place. That means all of us making buying decisions based on our personal wants and needs. Albuquerque is the result of the choices of her citizens. In the past, the city has concentrated on providing the infrastructure that supports these decisions. With the Form Based Code, the city is attempting to dictate these decisions. In short, another form of power is transferred from the consumer to the government and we all lose one more choice, one more freedom.

Advocates of the plan often called New Urbanism, will tell you that the FBC will make you healthier, more moral, and even allow you to save the planet. In reality, they're foisting their idea of utopia upon everyone and the dirty little secret is - every last one of the developments envisioned by the FBC could be built today. Yep... every one.

Life is filled with gray areas. Our zoning code shouldn't be one of them. It should be simple, easy to understand, and predictable. We don't need another layer added to our zoning code, one that is arbitrary, subjective, and most of all unnecessary.

Fiddling While Downtown Burns

Downtown Albuquerque has become a popular nightspot for the young and even the not-so-young. There are movie theaters, restaurants, and bars aplenty. Downtown has become an example of what new urbanist acolytes like Councilor Ike Benton advocate for the rest of the city.

The area has been the focus of the Chavez administration since The Almighty Alcalde's first tenure on the 11th floor. As a result, Downtown Albuquerque has changed a lot and benefited from the city spending large amounts of taxpayer money to expand the convention center, remodel Civic Plaza, and if the mayor has his way we'll be spending hundreds of MILLIONS of dollars more to build a new arena and put in a shiny new trolley.

All of the recreation and the shiny new toys (paid for by the taxpayers) are hiding the dirty underbelly of the Downtown experience. Our Eyes behind the badge tell us Rape, murder, and assault are almost nightly occurences. And despite the disproportionate APD force allocation, crime in the Downtown area is on the rise.

The July 13th murder in the Downtown parking garage is just one example of the danger that is life on Central Avenue (ABQ Journal - Subscription). Our Eyes tell us about another incident involving a Downtown alley, seven men, a knife, a woman, and a rape. Right now, Downtown isn't a safe place to be particularly if you happen to find yourself in city's first street garage - which according to our Eyes is particularly dangerous.

There are a couple of issues here. The mayor has decided that Downtown will be part of his legacy so he's willing to spend large amounts of money trying to get the situation under control. From this month's murder we'd humbly suggest that The Almighty One has failed despite the taxpayer expense. (We talked about the additional Downtown security back in April - read it here.)

Another problem is that The Almighty One decreed from his perch on the 11th floor that officers were to keep a low profile. By low profile, the directive instructed officers not to park on Central. In fact, they're not to park within a block of the Central Crime District. In addition, officers are not to congregate or to walk more than two abreast down the sidewalk.

It's simply foolish to put the kind of money into making Downtown safe and then decree that officers need to remain low profile and park their vehicles at a distance that leaves them without their equipment.

All of this leaves us wondering whether or not we've created a focal point for criminal and gang activity. If we have created an entertainment and crime district, shouldn't those businesses that contribute to the problem also contribute to the solution? Currently, Downtown bars are the only bars in town that receive police protection without paying chief's overtime.

Finally in light of the current situation in the Downtown area, why are we looking to add more people (potential victims) with trolleys and arenas (assuming there'd be anything to see in the 12,000 seat boondoggle) when we can't keep people safe now? The crime problem Downtown is just another problem that The Almighty Alcalde is ignoring... Something like fiddling while Downtown burns.

Eye Poll: We Want it All

A couple of weeks ago we asked, "what is the most important belief that a candidate for elected office can have?" We were curious what our readers would say. 3% said environmental responsibility, 7% social responsibility, 1% change, 8% security, 30% personal freedom and liberty, 5% none of the above, 47% all of the above (read the poll here).

In light of today's culture it should come as no surprise that most wanted it all. What was most encouraging is that 30% said that a belief in personal freedom and liberty was the most important quality in a candidate - without freedom nothing else matters. As a voter you might want to consider that before casting your vote. Forcing environmental or social responsibility on others is its own kind of tyranny. Security in defense of freedom is essential, but when it comes at the cost of liberty it too is tyranny.

This week we take a look at the Almighty Alcalde's Downtown Arena. Do we really need a 12,000 seat arena? Particularly since there's no anchor tenant and no proven means of supporting the taxpayer funded venture. Don't forget to vote!

Bermuda in the Grassroots

Bermuda grass - it's the bane of our existence. If you've ever owned a property where some fool has planted the stuff at anytime in the history of man you'll understand that getting it out of your beautiful Bluegrass is damn near impossible. This "grass" - that should really be classified as a weed - sends out coarse tendrils right along the ground. They go through just about anything rooting themselves and creating cells of Bermuda along the way.

Each cell then sends out its own tendrils that root in more places spreading out at an unimaginable pace. It's an ugly coarse grass that hurts when you walk on it barefoot and gets denser over time choking out the grass around it. It reminds us of Aspen groves where each seemingly individual tree is connected to a single organism. Only Bermuda grass is as ugly as Aspens are beautiful and it hides in the grass that it is destroying.

You're probably wondering what grass has to do with, well... anything. There's Bermuda grass hiding among the Bluegrass of New Mexico. And just like the plant version each of the cells are connected.

What got us thinking about this was the series of ads being run on 770 KKOB by the Center for Civic Policy. You know the ones, Big Oil Bob and Healthcare Hal. The spots are a childish attempt to characterize corporations involved in producing energy and providing access to healthcare as selfish and greedy.

(Sidebar)
Businesses operate on profit. When profit is removed from the equation there's little reason to perform a task. You wouldn't work for nothing and we know that we wouldn't. Nationalizing (or as Rep. Maxine Waters - D California says "socialize") either industry will remove the incentive for companies to run efficiently, to produce more, better, and cheaper products to compete with other private companies. Government regulation is largely responsible for both crisis's and groups like the Center for Civic Policy are largely responsible for the regulation.
(End Sidebar)

Despite immediately dismissing the spots for their idiocy of message and poor production value, we were curious about this Center for Civic Policy. It turns out they're a 501(c)(3) connected to Clearly New Mexico which is a 501(c)(4) by the name of the Center for Civic Action. Both groups are run by one Eli Il Yong Lee. Mr. Lee is also listed as a consultant for 1Sky a global warming scare group. In addition, Mr. Lee is the CEO and President of Soltari a political consulting firm for liberal candidates in small elections.

Eli Lee is in turn connected with Matt Brix Executive Director of Common Cause. Mr. Brix is a registered lobbyist for both of Lee's non-profits and listed as employed by them along with Common Cause on the Secretary of State's website.

So far, we have four apparently independent organizations with different names but similar if not identical agendas. They are all cross employed with each other and have the ability to take tax exempt donations to fund those salaries. They're professional advocates that rely on charitable donations and scare tactics for their livelihood.

More importantly, the groups are clearly involved in coordinated political activity. How could they not be when they share leadership and salaries? Plus, they create an echo chamber by making the public think that the same opinions are coming from different organizations.

Look... we don't care that they advocate for positions and candidates that we vehemently disagree with. It's their Constitutional right to lobby government and speak out on any topic they choose. We'd defend that right at all costs because we benefit from those same protections.

Our problem is the hypocrisy involved. These groups rail against "corporate special interests" while creating a multi-cell lobbying group, run by them, for them and their financial gain, and with their own set of special interests. It's disingenuous, it's hypocritical, it's deceptive and it's just like the damn Bermuda grass hiding in our yard.

Wanted: A Sanctuary for the Innocent

By now everyone has heard about the recent San Francisco triple homicide allegedly committed by known illegal alien Edwardo Ramos (read it here). As is typical, Ramos had been through the system on previous occasions and had spent some time in jail. The City of San Francisco's 1989 law prohibited law enforcement from notifying federal officials that they suspected that Ramos was in our country illegally. Last month that law cost three lives.

Last year, APD created a controversial SOP that basically said that officers could not notify federal authorities when they had a reasonable suspicion that a suspect in their custody had entered the country illegally. There was minor furor over the issue and APD quickly "clarified" (read changed) their position on the issue (Read our take here and here).

Last month's triple homicide in San Francisco caused one of the most liberal mayors in the country Gavin Newsome, rescinded the city's policy - a policy that the nutty mayor had actually promoted through a series of public service announcements. (Hat tip: Jim Villanucci)

All of this got us wondering... what is the current policy of APD? We did a little googling and found the following.

Officers shall not inquire about or seek proof of a person's immigration status, unless the person is in custody or is a suspect in a criminal investigation for a nonimmigration criminal violation and the immigration status of the person or suspect is pertinent to the criminal investigation.

-ABQ Journal (Subscription)

At first blush that doesn't look to bad. The problem is that little "and the immigration status of the person or suspect is pertinent to the criminal investigation." What comes before the "and" is really irrelevant. Unless immigration status is "pertinent" to the investigation, officers with reasonable suspicion that a suspect is in this country illegally are prohibited from notifying ICE that they may have an illegal in custody. In reality we're back to being what San Francisco wisely discarded - a sanctuary city.

Our Eyes behind the badge also tell us about another troubling aspect of all of this - illegals receiving state driver's licenses legally. The State of New Mexico will issue "undocumented" aliens a driver's license. These licenses are popping up all over the place and officers see them on a daily basis.

All of this has us wondering... In light of the recent spike in murders and the long standing property crime problem, how many of these crimes are being committed by illegals? How many of them have had contact with police and have presented a legal New Mexico license? How much of the crime here in Albuquerque could be prevented by a simple phone call?

We believe that whenever someone enters this country illegally and benefits from taxpayer provided schools, healthcare, etc., they are already guilty of larceny. Officers should be free to pursue notification of appropriate federal authorities whenever they come into contact with someone who they have reason to believe is in this country illegally. Further, the State of New Mexico is knowingly participating in a crime by making it easier for illegals to blend in and access taxpayer funded programs.

It's no surprise that people who come here illegally would be less averse to breaking our other laws. The Almighty Alcalde's first duty as mayor is to protect the public. That means removing the restraints that bind APD and allowing them to use their judgment when interacting with illegals. Let's make Albuquerque a sanctuary for the innocent rather than a play land for criminals. Who knows how many lives we can save?

Obamination: Jackbooted Thugs

Apparently the next generation of jackbooted thugs will be doing the goose step wearing an O on their armbands. The junior Senator from Illinois seems to believe that we need a civilian force on the scale of our military in order to achieve "national security objectives." In Obama's world this civilian force would be just as well equipped and just as well funded as our Army, Navy, Air Force, and Marines.

There are a couple of well-know organizations that come to mind when you talk about this type of civilian police organization... the Committee for State Security (KGB) and the Geheime Staatspolizie (Gestapo).

We cannot continue to rely on our military in order to achieve the national security objectives we've set. We've got to have a civilian national security force that's just as powerful, just as strong, just as well-funded.

-Barack Obama, July 2nd, 2008 - Colorado Springs, CO.

It sure sounds to us like Obama has a SS-like Eco-Gestapo in mind, dedicated to enforcing national security. But, let's give the presumptive Democratic Presidential Nominee the benefit of the doubt. Since his July 2nd speech was about "service" perhaps he had something other than climate change thugs breaking down your door in the middle of the night to make sure your thermostat is set above 72 degrees in summer and below 68 degrees in winter.

Let's assume that he had some mystical force dedicated to "service" that had the same funding as our military. Obama seems to be describing some sort of domestic peace corps running around doing good in the name of helping their fellow man. It sounds an awful lot like government run philanthropy - which of course isn't philanthropy at all since all of us taxpayers will be forced to pay for their activities to the tune of around a half a TRILLION dollars.

We didn't think it possible but this concept is even more frightening than Obama clad Eco-Thugs goose stepping down our street. Obama is proposing a massive increase in entitlement programs - programs that already eat up 65% of our national budget.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

-Preamble to the United States Constitution

We hardly believe that the founding fathers reference to "general welfare" had anything to do with paying people not to work. On the other hand, we are certain that the framers of the Constitution intended for the country it defined to have a military tasked with defending our country from foreign invaders.

To be clear, Obama either wants to create some sort of SS-style national security force or he wants to increase the already ridiculously high entitlement spending by HUNDREDS OF BILLIONS of dollars. It's either Jackbooted Thugs or complete economic collapse under the weight of an untenable uber-welfare state - that's certainly change.

It's Hard to Stop a Train!

The Rail Runner was sold to New Mexicans on the promises of federal support and an original price tag of $300 MILLION (Subscription) for the whole enchilada. Not surprisingly, cost over-runs have put us in the $400 MILLIO plus range and we're not finished with the Santa Fe extension yet. Not to mention that there's been absolutely no federal money made available for the project.

Wednesday, the Mid-Region Council of Governments (MRCOG) voted 14-2 to put a $26 MILLION a year tax increase on the table to pay for the operation of the system (Journal - Subscription).

(Sidebar)
We've often been critical of MRCOG representatives and City Councilors Sally Mayer and Don Harris. Wednesday, they got it right by voting against the tax increase. We give credit where credit is due and both councilors acted in the best interests of not only their constituents but in the best interests of all of us living under the influence of MRCOG.
(End Sidebar)

The Bernalillo County Commission isn't wasting any time getting the wheels rolling on the Rail Runner tax increase. They're taking the first step towards putting the $26 MILLION yearly tax increase on the ballot tomorrow - just two days after the MRCOG vote. At the unusual hour of 11:00 am, the commissioners will vote on whether or not to publish the required legal notice indicating that they will debate (rubber stamp) the proposed MRCOG Rail Runner tax increase and whether or not it will be placed on the November ballot.

The legal notice is required by law. What's unusual is the time chosen to vote on notice placement. It's damn odd that the commission is meeting at 11:00 am in the first place. The only time the commissioners meet during the day is to perform time-sensitive functions like the Board of Canvass. The rest of the time they convene after work at 4:30 or 5:00pm.

Look... The commission tends to fly under the radar most of the time anyway, but we'd be willing to bet that even Geraldine Amato will have a hard time making the meeting. Seems to us that the commissioners really don't want to have any shall we say... interruptions (or debate) over the issue. Tomorrow's meeting is the first opportunity for opponents of the tax to prevent its inclusion on the November ballot - keeping it low profile allows commissioners some cover and protects them from criticism.

Meanwhile over at the city, Marty's busy trying to get his trolley back on track again. It's trains coming from every direction and no matter how many times they get derailed or how many times we're reassured that tax increases are "off the table forever" (KOB.com) the trains just keep coming. (Don't even get us started about the undersized, unwanted, over priced downtown arena.) It just goes to show you that it's hard to stop a train!

Obamination: Unfit for Command

"Unfit for command" - a phrase used to describe John Kerry in the last presidential election. Four years ago it was used to describe Kerry's puffed up service record as exposed by the Swiftboat Veterans for Truth and his subsequent betrayal of his brothers in arms.

In this election cycle, many have compared Obama's relative lack of experience to John McCain's long service in the military and in the U.S. Senate. We don't believe there has been any President since George Washington that has been fully ready for what awaits them when they step into the Oval Office. It's true that from an experience standpoint Obama is probably more equipped to fight an insurgence from Wisconsin than a war against terror but our opinion was formed more by his ever shifting foreign policy statements than by his experience in government.

Yesterday, we watched The One Named O deliver what was billed as a "major foreign policy speech" (read the full text here). While peppered with focus group bullet points like "misled us into a misguided war," "fight a war that hasn't made us safer," and our favorite "redeploy our troops," Obama's Iraq new strategy sounds curiously familiar saying that he will "consult with commanders on the ground" regarding troop levels in Iraq. In fact, it sounds an awful lot like a strategy proposed and implemented over a year ago.

"Troop levels will be decided by our commanders on the ground, not by political figures in Washington, D.C."

- President Bush July 11th, 2007 (CNN)

Obama's new strategy for Iraq even embraces the surge and its tactics.

It has been 18 months since President Bush announced the surge. As I have said many times, our troops have performed brilliantly in lowering the level of violence. General Petraeus has used new tactics to protect the Iraqi population. We have talked directly to Sunni tribes that used to be hostile to America, and supported their fight against al-Qaida. Shiite militias have generally respected a cease-fire. Those are the facts, and all Americans welcome them.

- Barrack Hussein Obama, July 15th, 2008 (Guardian)

All of this has got to be driving the DailyKooks and the MoveOn.Ogres absolutely mad. Not only does Obama acknowledge the hated surge, he complements General Petraeus on his new tactics. If you'll remember, just last year the MoveOn.Ogres were branding the creator of the surge a traitor in a New York times full page ad (view it here).

Why the change? Well, interestingly enough Obama seems to have taken the advice of the same magazine that published his least favorite political "satire" - The New Yorker. In a July 7th article (read it here) the New Yorker's George Packer opined that Obama's 16 month withdrawal plan wouldn't fly in the face of the reality of today's Iraq and wondered whether he would "publicly change course" - Tuesday Obama did.

To make matters worse for the lunatic fringe, Obama proposes his own surge into Afghanistan and perhaps even Pakistan.

Look, we're not against a troop surge in Afghanistan if the "commanders on the ground" deem it necessary. It's important that the United States win any military conflict we are engaged in. The threat of military force must remain credible and overwhelming. Therefore, anything less than victory is unacceptable in Iraq or Afghanistan.

Obama seems to be advocating invading a sovereign nation (Pakistan) that is cooperating with us (at least on some levels) while relying on hot air alone to constrain the very real threat of a nuclear Iran that has a track record of non-cooperation and belligerence towards the west. We don't believe for a second that The One Named O would authorize a strike into Pakistan under just about any circumstances and we'd bet you that the rest of the world and especially terrorists like Bin Laden don't believe it either. By the way, someone should remind Obama that Pakistan already has nuclear weapons, Iran probably does not - at least for now.

Foreign policy is not based entirely upon the events in Iraq, Iran or Afghanistan. Obama brought up the U.S. dependence on foreign oil. He's right - our dependence on foreign sources of energy is a national security issue. However, you can't take anyone seriously when their solution to our foreign oil dependence doesn't include domestic drilling. Like it or not our country runs on oil and other carbon based fuels and no amount of money will change that fact over night. NIMBYs, environmental groups, and their allies in Congress are directly responsible for our country's foreign energy dependence though drilling and refining restrictions, and the costs and red tape associated with building nuclear power plants. Domestic oil production has to be part of the solution.

Worst of all, Obama cites as his most pressing national security threat "the long-term threat from climate change." It's hard to believe that a seemingly rational man would make changing the weather his top national security priority. Climate change may be a political reality, but its causal relationship to man's use of carbon based fuels is disputed at the very least. Moreover, it's science based on consensus not empirical evidence and can only be considered theory.

The fact is, there are people in this world who want to hurt Americans simply because we are the most successful nation in the world. You can't buy them off and you can't talk them to death. They have but one objective, the annihilation of innocent life in a free society - ours. That's not theory or a political reality, it's is and nearly always has been a proven fact of our existence.

We cannot afford another war fought in the fog of politics from the White House. We cannot afford a President whose foreign policy shifts with the winds of political expediency. And we simply can't afford a President whose top national security threat is a concept based on theoretical science and political coercion. In short, we cannot afford Barrack Hussein Obama II - he is unfit for command.

-----Post Script-----
Yeah, we know that this is site is called EyeOnAlbuquerque. We get it. However, we've got enough problems around here without having to deal with national debacles. So, until we're safe from national politics here in EyeLand, we'll be talking about national and state issues that affect us as well.

Streetcar Stupidity

The marketing group that is Councilor Isaac Benton's transportation task force received a report from Leland Consulting Group, LLC Tuesday and - we know this will shock you - the consultants recommended that a trolley be installed between San Mateo and Downtown (ABQ Journal - Subscription). We told you what Train Master Benton and the Almighty Alcalde were cooking up over a year ago (read it here).

The concept is if the public doesn't want something and New Urbanist acolytes like Benton and the city planning department do, create a task force stacked with "business and community representatives" who already agree with you, meet and talk for a few years, and the coup de grâce bring in a consultant whose specialty is... "transit-oriented development."

Our experts are recognized nationally as leaders in these strategies, having contributed to more than 70 light rail station areas.

-Leland Consulting, LLC

The reality is that this trolley down Central Avenue will only serve about 5,000 people a day - if that. (Mario Burgos has an interesting analysis here.) At a cost of $28 MILLION a mile and $3.9 MILLION a year we could buy a whole lot buses, build all kinds of bike and walking trails, and fix a whole lot of roads throughout the city. The estimated $106 MILLION would go a long way towards fixing the Paseo/I-25 interchange which serves far more people on a daily basis.

Isaac Benton and the Almighty Alcalde would have us believe that rails embedded in Central Avenue will carry the trolley to utopia. In reality, it's the worst sort of government wealth redistribution scheme aimed largely at legacy building not solving transportation problems. To make matters worse, these yahoos are considering wasting our money at a time when city hall is trying to avert a budget crisis and squabbling about how to do it. It's just more 19th Century Streetcar stupidity that'll end up costing all of us MILLIONS of dollars up front and for years to come.

Forfeiture

Last week the New Mexico Supreme Court threw out a challenge to Albuquerque's vehicle forfeiture ordinance because the challenger lacked legal standing (ABQ Journal - Subscription). The ordinance (O-05-113) sponsored by (thankfully) former City Councilor Craig Loy was passed by the council back in 2005, and allows police officers to seize a vehicle upon arrest of that vehicle's driver for driving under the influence of "drugs or intoxicating liquor." Upon passage it was immediately challenged by the ACLU.

(Sidebar)
We don't usually agree with the folks over at the American Civil Liberties Union. They're usually trying to strip someone of an explicit right or freedom in favor of their own interpretation of the code of political correctness. In this case, they actually took up for a right explicitly guaranteed by the Constitution and should be commended for their action. Doesn't mean we'll be joining any time soon, but we'll give credit where credit is due.
(End Sidebar)

Loy's forfeiture ordinance incorporates many of the quasi-legal proceedings that are found in many of the city's more detestable law/code enforcement gimmicks and is not surprisingly based on the concept of nuisance abatement. The idea is that if you run a red light, own a crack house, or now - thanks to the New Mexico Supremes - are accused of driving while intoxicated, your property is a nuisance and can be seized and sold with the profit going to the city.

Of course in an attempt to cover their... uh hind quarters, the ordinance provides for a semblance of due process through a provision for the vehicle owner to appeal the seizure and subsequent forfeiture order by appearing before one of Marty's Mini-Magistrates. Yep, the very same "hearing officers" we've all come to know and loath in the Red Light Scam-era proceedings.

In addition to appearing in the Almighty Alcalde's Kangaroo Court, these "hearings" are deemed "informal and not bound by the technical rules of evidence." Further, "the city hearing officer shall only determine whether the law enforcement officer had probable cause to seize the vehicle. (read the complete ordinance here)[emphasis added]"

PROBABLE CAUSE - A reasonable belief that a person has committed a crime. The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992). In terms of seizure of items, probable cause merely requires that the facts available to the officer warrants a "man of reasonable caution" to conclude that certain items may be contraband or stolen property or useful as evidence of a crime. U.S. v. Dunn, 946 F.2d 615, 619 (9th Cir. 1991), cert. Denied, 112 S. Ct. 401 (1992).

- Lectlaw.com

In other words, an officer can impose punishment (there's no other way to look at loosing thousands of dollars through a vehicle forfeiture) simply because a "prudent person" would believe that a "suspect has committed, is committing, or is about to commit a crime." This is precisely the type of limitless governmental power that the framers of the Constitution were worried about.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [emphasis added]

- The 5th Amendment to the Constitution

You might want to read the italicized portion again... "nor be deprived of life, liberty, or property, without due process of law." The Constitution doesn't give an exception for nuisance abatement or driving under the influence. Put simply, punishment cannot be meted out by government until after you are found guilty of an offense - until after you receive due process. It's simply laughable to believe that at the time of an arrest the accused has received any form of due process worthy of the name.

For those of you who were worried about providing access to U.S. Courts to unlawful combatants (a.k.a. terrorists) held in Guantanamo (who were not afforded the protection of our Constitution before their capture and certainly wouldn't extend similar protections to anyone under any circumstances), our city has passed an ordinance that deprives the accused of property upon issuance of an official accusation. Hell, under this ordinance it's not even important whether you're guilty or innocent. All that's required for you to be deprived of your vehicle - for you to receive punishment - is for an officer to have probable cause to accuse you!

(Sidebar)
There's also an argument that the City of Albuquerque doesn't have the authority to seize anything valued over $1,000. New Mexico Statute 3-17-1 limits convictions under a municipal code for DWI to not more than $1,000 and/or 364 days in jail (read it here). These days, even the most heinous junker is worth a thousand bucks. As a result, forfeiture of most vehicles would exceed the maximum penalty allowed under state law.
(End Sidebar)

Granted, DWI is a serious problem in this state. However, it's hard to justify denying a fundamental and explicit Constitutional right even when addressing a serious problem. If the city wants to book the vehicle into evidence and return the vehicle to the owner upon a finding of not guilty or a case dismissal... fine, as long as the city bears the cost of storage and liability for damage. Stopping DWI should not come at the price of the forfeiture of our guaranteed Constitutional rights.

----- Post Script-----
Just in case we weren't clear above, we have no problem with the seizure of property for evidentiary purposes. What we have a problem with is forfeiture prior to adjudication. An administrative hearing officer cannot be considered impartial as he/she is employed by the executive branch of government. The hearing process is not bound to the rules of evidence and a hearing only determines probable cause not guilt or innocence.

Comparing seizing a vehicle to the seizure of illegal substances is an invalid comparison because in most cases the property in question was legally obtained and is in all cases legal to possess. Law enforcement regularly seize property associated with criminal investigations. Property is returned to its rightful owner following adjudication except in the case of illegal substances which are destroyed or upon conviction whereupon seized property is routinely deemed forfeit.

There's absolutely no justification for a misdemeanor offense to circumvent the Fifth Amendment. Property involved in DWI cases should be treated exactly like evidence from any other crime.

Pardon Him

In our extended Eye Poll, our readers came to the same conclusion that we did... pardon him. The 390 Eye Readers in our unscientific poll 57% believed Elton John Richard II should be pardoned by Governor Richardson, 39% said no way, 2% didn't know, and another 2% didn't care (view the results here).

As you probably know, we agree with the majority. A pardon seems in order as two wrongs don't make a right. Richard protected himself, his family, the rest of us, and made every attempt to bring Daniel Romero into custody - which would have protected the felon from himself. In our opinion a pardon is in order simply because Richard acted in the best interests of his family and society.

This week's Eye Poll is a bit esoteric. But we're really interested in what beliefs you think are important in a candidate for any office. Take a moment and think about the things you believe in and which beliefs are compatible with your own. Don't forget to vote!

Independence

July 4th, the day we celebrate the ratification of the Declaration of Independence - our emancipation from British rule. It's the document that began a process that created a nation based on liberty.

Most of the time we think of the Declaration of Independence in national terms. Severing our ties to Great Britain necessitated the formation of a new government originally defined by the Articles of Confederation. Ultimately, these two documents lead to our current Constitution - a document that is changeable, but does not evolve of its own accord.

These documents and the ideas contained within are the result of the coming together of a free people. They represent a choice - one that cost many of the signers of the Declaration of Independence their fortunes, their families, their very lives.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

- The Declaration of Independence

These honorable men didn't fight for healthcare, welfare, or any other government entitlement that you can think of. They risked everything for the chance to stand on their own, to run their businesses and their lives as they saw fit. They fought to remove the shackles of government, not to replace them with restraints in another form.

The U.S. Constitution is a direct result of that type of thinking. It's designed not to empower government, but to restrain it. It doesn't define our freedoms; it defines our government's limitations.

Somewhere in the last two centuries we've forgotten about the pride and dignity of being independent. We've been lured into an interdependence that empowers government beyond anything that our founding fathers ever envisioned. In fact, we believe that they would be truly appalled.

This July 4th - this Independence Day, remember that this day should be more than a celebration of separation. It should be a day celebrating our personal liberty, our freedom... our independence.

Crossing the Line

Last year County Commissioner Teresa Cordova used her influence to get her son's English grade changed from an F to a D. Without the change Commissioner Cordova's son would have spent another year attending Rio Grande High School (ABQ Journal - Subscription). At the time Cordova claimed that she was only reacting as a parent not an elected official. Last month the voters reacted to her excuse sending her packing in the Democratic primary.

Commissioner Cordova clearly used her influence to spring her little boy from high school abusing her authority and the public's trust. For all of that, her actions while unethical were not illegal. Our Eyes are telling us about another parent who's trying to protect their son in a similar fashion. In this case, the line might be more than just an ethical breach.

For some time now the La Cueva neighborhood has been experiencing a rash of vandalism. It's become quite an issue for the Northeast Substation - so much so that additional patrols have been regularly sent into the area and officers are being encouraged cruise through the neighborhood whenever they have an opportunity.

Even with the extra patrols and the emphasis placed on the neighborhood, the vandalism was continuing. Like in any good neighborhood, the residents started looking out for each other. Eventually, their vigilance paid off. Our Eyes tell us that the neighbors managed to spot a group of juveniles egging a property. They followed the hooligans to a second home where they used their vehicles to block the driveway and called the police.

(Sidebar)
Folks, it's always dangerous to follow criminals somewhere and attempt to keep them in any sort of custody. There's a reason why we pay and train professionals to do this kind of thing. Even the most timid of suspects can surprise you and ruin your whole day. Acts like this fall under the heading of don't try this at home.
(End Sidebar)

While waiting for the police to arrive, one of the afore mentioned hooligans came out of the residence with his phone (of course) and told folks from the neighborhood to leave because nothing was going to happen to him anyway. This is where things got interesting.

Because there's potential criminal activity involved, we're going to withhold the names of the two APD officers involved (for now). The first officer is the father of juvenile with the phone - he holds the rank of lieutenant, and works in one of the other area commands. We'll call him Lieutenant A. The second officer involved is a P2C rookie probational officer, assigned to the Northeast Area Command and the officer dispatched to the scene where the juvenile hooligans were being detained. We'll call this second officer, Officer H.

When Officer H arrived on the scene he was greeted by a juvenile with a phone, some adults with their cars blocking the driveway, and Lieutenant A on the boy's cell phone. Apparently, in addition to speaking with his son, Lieutenant A had a conversation with the angry residents of the La Cueva neighborhood in which he instructed them to remove their vehicles or they would be charged with false imprisonment. When Officer H arrived the lieutenant asked to talk to the rookie.

Our Eyes tell us that the lieutenant who identified himself to Officer H on the phone insisted that there was a problem with the investigation. Of course, there hadn't been an investigation... yet. To his credit the rookie officer interviewed all of the parties and decided that the evidence indicated that the juveniles involved be charged with criminal damage to property.

This where the trouble really began. After some calls and emails to various officers in a number of positions, Officer H was instructed to change his report from a criminal damage report to an informational report. The suspects from the original report were to be re-identified as interviewed. In other words, as the hooligan (or maybe we should say alleged hooligan, or even better, alleged interviewee) said - nothing was going to happen.

We can understand a parent trying to take care of their kids. It's a natural, basic instinct that sometimes leads parents to cross a line that they latter regret crossing - one that can have some rather unpleasant consequences. Just ask Commissioner Cordova whose interference in her son's grades no doubt cost Cordova her seat on the County Commission. It's quite possible that Lieutenant A's decision to get involved in his son's situation may have crossed a line of a criminal nature.

There's a big difference between prosecutorial discretion and interfering in an investigation. It's illegal for a police officer to use his position to fix tickets for friends, so you can bet it's illegal to interfere in an investigation - that's crossing a line.

Dismissed

The Albuquerque Journal is reporting that the case against KOB TV photographer Rick Foley has been dismissed without prejudice (ABQ Journal - Subscription) [hat tip Eye reader]. Judge Benjamin Chavez apparently cited a lack of probable cause as the reason for the case dismissal.

As we've said before, this thing didn't have to go down this way and it was probably not the wisest of moves to arrest a news photographer toting a $50,000 camera recording pictures and sound all at broadcast quality without an absolutely air-tight case. That being said, any disciplinary action should be consistent with discipline received by other officers in similar situations. Punishment should not be meted out in a greater or lesser measure simply because the infraction was caught by a television news camera.

We can't think of a single reason that Officer Guzman should suddenly be placed on leave this past Saturday - even if Chief Schultz really received the IRO report on Friday as he claimed in today's Journal (Subscription). Was Officer Guzman threatened by a wild band of roving news photographers? Was Guzman threatening to arrest every photographer he came in contact with? We hardly think so - which makes his suspension look more like pandering.

(Sidebar)
We were taken to task by a reader who chided us for our original lack of clarity as to the status of Officer Guzman. We indicated that he had been "relieved of duty" which could have been taken to mean that he had been terminated. As far as we know, Officer Guzman is on some kind of leave - whether it's paid or unpaid is currently unclear.
(End Sidebar)

Relieving Guzman of duty smacks of punishment by media or at least because of unwanted media attention. In other words, Guzman seems to be becoming a scapegoat offered up on a silver platter to appease the media. Like it or not, Officer Guzman is entitled to administrative due process and legal due process. Further, the administrative process needs to be fair and consistent regardless of media attention.

Lets Make a Deal

It seems like the 5th floor just can't catch a break... They get caught fooling around with everything from crime statistics to red light camera accidents. They're exposed using the Internal Affairs investigative process to silence critics (our Eyes tell us that Sergeant Heh still hasn't been cleared despite a complete lack of evidence - read it here). And to put the cherry on top, they have utterly failed to increase the number of officers on the force a state of affairs that even they are admitting to (ABQ Journal - Subscription).

(Sidebar)
Our Eyes maintain that the current 972 officers on the force that the 5th floor is admitting to is the result of at least a little creative accounting. One example given is the new PIO Nadine Hamby who bid for motors yet never reports since her duties as PIO take precedence. According to our Eyes Ms. Hamby has two jobs - one of which she doesn't perform. The scheme doesn't make the public any safer but it makes certain politicians and their at will employees safer in their positions.
(End Sidebar)

If all of that weren't enough the boys on the 5th floor moved APD from a 4/10 weekly schedule to 5/8s right at the time when gas prices have hit $4 a gallon and the rest of the world is considering going to 4/10s to save gas. To make matters worse, the move to 5/8s triggered a long standing provision of the APOA/APD contract that basically says that if an officer has court any time after their shift they are automatically entitled to 2 hours of overtime at time and a half.

After consulting with the union attorneys and the city attorney, the APOA brought the provision to the attention of the 5th floor. According to our Eyes Chief Shultz left the decision whether or not to follow the black letter provisions of the contract to the vast contract law experience of Deputy Chief Michael Calloway - who promptly decided to ignore the provision and the advice of the city attorney (read it here).

Initially, the APOA offered to forgive the overtime in exchange for a move back to a 4/10 schedule. Of course that was a week or so after the new 5/8 schedule began - now grave yard officers in particular are owed literally thousands of dollars each. That's money they've earned and the city agreed to pay even if DC Calloway has refused to pay it.

Remember we told you that all of the attorneys agreed that the 5th floor must pay the overtime indicated in their contract? Well it turns out that the folks over at aviation have been receiving the overtime for over two years. Oops! Now the 5th floor wants to take the initial deal offered by the APOA - 4/10s for debt forgiveness.

Frankly, we don't blame the union for not being interested. They were in essence told to screw-off and now after APOA members are owed thousands of dollars - money being paid to aviation officers - the 5th floor wants a deal. You just gotta' love these guys!