N.M. cops can't arrest for 'refusing to obey'

New APD policy says 'refusing to obey' not enough

By T.J. Wilham
Albuquerque Journal

ALBUQUERQUE — Albuquerque police officers are being told they'd better have a good reason when they arrest someone for "refusing to obey."

Chief Ray Schultz issued a new policy to the department last week, instructing officers that they are not to charge someone with "refusing to obey" unless that person is already being arrested on another crime or is physically keeping the officer from carrying out his duties.

It instructs officers not to arrest someone for refusing to obey simply because of something the person said, with the exception of "fighting" words that threaten the officer.

"This is us being responsive to the community's concerns," Schultz said. "I have received hundreds of letters, e-mails and phone calls."

A recent A lbuquerque Journal investigation found that APD arrested 517 people on "refusing to obey" charges in 2007. Seventy percent of the cases were thrown out.

"Refusing to obey" is a city ordinance that gives police the authority to arrest someone who disobeys them. It was adopted in 1973.

Defense attorneys derisively call the refusing to obey charge "contempt of cop" and claim that APD routinely violates residents' First Amendment rights when they use it.

The Journal investigation found that arrests under the ordinance included a passenger in a car who interrupted a police officer during a traffic stop, a resident who refused to end a party and a man who wouldn't let officers - who didn't have a warrant - into his home.

Among the other cases making headlines:

n The arrest of KOB-TV cameraman Rick Foley, who was attacked by an officer while covering a police standoff. The officer asked Foley to leave the area, then attacked him while he was packing his equipment. The incident was caught on Foley's video camera. Foley was arrested for refusing to obey. His case was dismissed, and officer Daniel Guzman was terminated.

The October arrest of Deborah Baca, who was charged with refusing to obey after she refused to put out her cigarette during a traffic stop.

"The new policy is a way for us to do a better job," Schultz said. "It adds clarification and tells officers how we want certain incidents - like the ones we have seen in the paper - handled."

Under the policy, only under rare circumstances can the charge "refusing to obey" stand alone.

The policy also instructs officers to follow through with prosecution when the charge is used and for supervisors to review each case in which someone is charged with refusing to obey.

Schultz said officers were using the charge as a way to defuse a situation, knew it wouldn't stick in court, and failed to follow through.

Officers will be trained on the new policy, officials said.

Shannon Kennedy, a local defense attorney who has represented several clients arrested for refusing to obey, applauded the new policy. Kennedy has won several civil lawsuits against APD alleging clients' constitutional rights were violated when they were arrested on the charge.

"This is fantastic. I applaud the chief," Kennedy said after reading the policy. "This is a step in the right direction."

Ron Olivas, president of the Albuquerque Police Officers' Association, said the policy needs further explanation that he hopes will occur during training.

"I don't think the officers will be too concerned about the new policy as long as they will be able to use their discretion to effect an arrest," he said. "If this is taking away one of their options, then we are concerned because ultimately that could affect public safety."

Copyright 2008 Albuquerque Journal

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