Valenzuela attorney urges council to enact 'firm policies' for Las Cruces police

Michael McDevitt
Las Cruces Sun-News

LAS CRUCES – The city agreed to consider updating its police use-of-force policies as part of a settlement with the family of Antonio Valenzuela, who was killed in police custody in February after being placed in a neck restraint.

But the majority of the policies the family desired are already in place, the department has said. Many were in place before Valenzuela’s death occurred, according to Las Cruces Police Department and city staff.

Sam Bregman, the Valenzuela family's attorney, is looking for something stronger.

Specifically, he said the city council should "demand" the adoption of the policies formally by ordinance or resolution, so they're not subject to be changed by a future police chief at the department level.

"If they're saying they're doing all these things already," Bregman said, "then make it the law of the land."

“The agreement between the parties does not require the city to change any formal policies,” Damian Martinez, who represented the city in the Valenzuela lawsuit, told city councilors last week. “What the agreement requires is that the city needs to consider eight possible policy changes, but the city is not bound to make any of those changes.”

The Las Cruces City Council discussed the terms of the July settlement during a work session last Monday, which asks the council to consider the adoption of eight policies.

The settlement agreement asks LCPD to ban all forms of chokeholds, implement mandatory yearly mental health exams for officers, make it punishable for officers not to intervene if they are aware of or witness "unconstitutional" uses of force and require empathy, de-escalation and racial bias training on an annual or at least biannual basis.

It also calls for the implementation of a "red flag warning system" to track repeated uses of force by officers, regular updates to the city council on LCPD use-of-force and discipline statistics, the investigation of all use-of-force incidents and the retention of those records in line with state law.

Aside from yearly mental health exams, almost all the other policy suggestions already exist in some way within LCPD, police and city staff said.

The police department has said chokeholds have never been authorized. The hold Valenzuela was put in, a vascular neck restraint, was banned by former Chief Patrick Gallagher following Valenzuela’s death. The maneuver is expected to remain banned as part of a draft revised use-of-force policy, which is under legal review, Martinez said.

A march of approximately 40 people arrive at the corner of Picacho Avenue and Main Street in downtown Las Cruces on Monday, June 8, 2020, in a march protesting systemic racism in policing and criminal justice led by New Mexico public defenders. Chants and signs observed Monday included the name of Antonio Valenzuela, whose Feb. 29, 2020 death while in the custody of Las Cruces police, has been ruled a homicide.

“See, the difference between simply making it the police chief sending out a memo saying 'no more chokeholds' as compared to the city council making an actual policy, is that the next police chief could change it,” Bregman said.

“We need a city council here that is willing to stand up and codify … the idea that this city will never tolerate another police officer performing a chokehold, or any other type of grab around the neck, on a citizen of Las Cruces,” Bregman said.

Chief Miguel Dominguez and Las Cruces Police Lt. Jeremy Story, the department's training director, countered by saying critical department policies are not that easy to change. They must undergo legal review first.

Bregman expressed worry that trainings could be reduced or eliminated in the event of a tight budget unless codified by ordinance. Story said some trainings, like crisis intervention and racial bias, are done in-house and wouldn't be affected by a cut travel budget, for instance.

More:Calls for transparency and increased oversight of local police at special city session

District 3 Councilor Gabriel Vasquez questioned some of the settlement terms. He asked if Bregman was aware of existing policy.

“Did the attorneys for the Valenzuela estate not do their due diligence or are they talking about other things that we need to change?” Vasquez asked during the meeting. “So far I’m hearing that we’ve already implemented these things.”

Sam Bregman, attorney for Antonio Valenzuela's family, describes the final moments of Valenzuela's life during a news conference Tuesday, June 9, 2020 in Las Cruces. Valenzuela was killed after an encounter with Las Cruces Police Officer Christopher Smelser in February. Bregman says Smelser should be facing a second-degree murder charge instead of an involuntary murder charge.

Bregman told the Sun-News the settlement was not about the police department implementing policies on their own. It was about the city council cementing each practice in city law so police are required to follow them.

“Antonio died and should never have died," Bregman said. "There needs to be put firm policies in place, in writing, that say they can’t do that.”

Bregman said he looked at some of the department's policies when negotiating the settlement. The city never mentioned during negotiations which policies were currently in place, he said.

The records retention policy requested in the settlement is largely in place already, but City Attorney Jennifer Vega-Brown said the council will soon vote to slightly amend it to fully comply with the settlement.

Story said officers receive crisis intervention training above the minimum state requirements. They have also received racial bias training annually for several years, he said. Formal empathy training is coming soon but aspects of empathy training exist in other trainings, he said.

Additionally, Story said the department continues to incorporate more ways to train in areas such as crisis intervention, bias and empathy to improve officers' emotional intelligence, bias awareness and communication, including recently purchased virtual reality empathy training systems.

The council previously received regular updates on use-of-force incidents and disciplinary outcomes from the city's external police auditor. That's expected to continue once a new auditor is hired. The settlement calls for updates every six months.

Related:Las Cruces currently lacks independent police auditor, but bidding process is underway

Vasquez suggested each use-of-force incident report also be sent to the city's human resources department so the incidents have some eyeballs on them outside the police department.

“I continue to hear that all these policies are in place,” said District 1 Councilor Kasandra Gandara. “But I can’t help but to think, then, why are we in the predicament that we’re in?”

Bregman echoed that sentiment, arguing Valenzuela's death is evidence the training officers had been receiving and other policies in place clearly didn't work.

"Las Cruces has a horrific record for use of force," Bregman said.

Due to procedures for city policymaking, annual mental health examinations may need to be negotiated with the city’s police union, Vega-Brown said. The policy could also raise Americans with Disabilities Act compliance concerns, Martinez said.

The settlement specifically calls for LCPD to consider having its officers submit to a mental health examination by a licensed psychiatrist each year to certify "fitness for duty."

Martinez said LCPD is "currently implementing mechanisms that support" officers' mental health, such as the Cordico app, which offers self-assessment tools and information to officers about mental health resources. The department also offers voluntary psychiatric visits to some officers.

"What is wrong with having a once a year exam to make sure every police officer is mentally healthy enough to be declared fit for duty?" Bregman said. "I would think if you're the chief of police, you would want to know that every single year, your cops that are out there on the street are good to go."

Vega-Brown said the current recommendation is for the city's Public Safety Select Committee to vet the mental health exam suggestion before any policy is established.

Michael McDevitt is a city and county government reporter for the Sun-News. He can be reached at 575-202-3205, or @MikeMcDTweets on Twitter.