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WED: Appeals court says Albuquerque ordinance violates 1st Amendment, + More

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Appeals court: Albuquerque ordinance violates 1st Amendment - Associated Press

A federal appeals court on Wednesday upheld a lower court's ruling that an Albuquerque ordinance aimed at curbing panhandling in certain places wasn't sufficiently narrow to avoid violating First Amendment rights.

The city's ordinance prohibits pedestrians from congregating close to a highway entrance or ramp, occupying a median considered unsuitable for pedestrians or having an exchange of any kind with somebody in a vehicle in a traffic lane.

The ordinance was challenged in court on behalf of panhandlers, protesters and people who pass out items to the needy.

City officials argued that the restrictions are needed to address pedestrian safety concerns and were narrowly tailored to not restrict speech more than necessary.

The 10th Circuit U.S. Court of Appeals, like a U.S. District Court judge, disagreed, saying that the ordinance's provisions weren't sufficiently narrow to conform to the goal of reducing pedestrian-vehicle accidents.

Visiting New Mexico's capital? Bring vaccine proof, not guns - By Cedar Attanasio Associated Press / Report For America

New Mexico's state legislative complex will be open to the public during upcoming Legislative sessions, but only for those who provide proof of vaccination.

New rules will also prohibit performances, advocacy booths and tours at the state capitol starting Dec. 6, when the Legislature meets for redistricting — setting new political boundaries based on 2020 census population counts.

The rules will also be in place during the regular legislative session that starts in January, limiting festivities in the Roundhouse — the state capitol building that includes the Legislature and the governor's office — but allowing the public to attend Legislative hearings for the first time since the start of the pandemic.

"Given the high number of COVID-19 cases across the state and the strain this continues to put on state resources, it is incumbent on us to protect everyone in the Capitol complex while conducting the state's business," said Legislative Council Service service director Raúl Burciaga, who oversees safety and operations at the state capital.

The vaccination requirement does not apply to lawmakers.

The Roundhouse has been open to the public for months, with a masking requirement but no vaccine requirement. It's popular for visitors thanks to four floors of local art and its round shape, unique among U.S. state capitals.

It was completely closed to the public during the last legislative session due to coronavirus concerns and fenced off with armed guards following the Jan. 6 insurrection at the U.S. Capitol. Legislative debates were broadcast online and public comment was given via Zoom.

The internet broadcasts will continue indefinitely.

Earlier this month, Democratic lawmakers banned weapons including firearms at the capital  for the first time in its century-long history.

State Republican lawmakers have condemned the gun and in person restrictions, including Tuesday's announcement.

"Last year they put up a fence blockade and called the national guard, this year they've decided to ask for your medical records and take away your second amendment rights," said state House Republican Leader Jim Townsend, of Artesia, in southeastern New Mexico.

Before the pandemic, legislative sessions served as a festive platform for musical performances and dancing, and lobbying booths. That included advocacy groups handing out pens and massage stations where legislators and the members of the public could get a free backrub, all of which are prohibited under the new rules.

Judge: DA office off case because cops recorded lawyer call - Farmington Daily Times, Associated Press

A New Mexico judge has ruled that a district attorney's office must be replaced as prosecutors in a homicide case in which Farmington police violated the defendant's constitutional rights by recording him talking with his attorney.

However, state District Judge David Pederson declined in his Nov. 5 ruling to also dismiss charges against John "Johnny" Marlowe Davidson in the 2020 fatal shooting of Justin Tapaha, saying that would be too harsh as it could deprive the victim's family of justice, the Farmington Daily Times reported.

Davidson is charged with second-degree murder and of shooting at or from a motor vehicle and causing great bodily harm.

In addition to ordering the San Juan County District Attorney's Office to hand off the prosecution of Davidson, Pederson granted defense motions to suppress illegal interview room recordings of Davidson's calls to his attorney and to suppress evidence from Davidson's cellphone and its contents.

Davidson's attorneys filed an Aug. 2 motion to have the case dismissed, arguing that the Farmington Police Department violated their client's constitutional rights by recording a privileged 30-minute conversation involving Davidson and the attorney he had at the time.

Pederson said Farmington police intentionally misled Davidson to believe he was not being recorded and that removing the DA's office was needed to provide Davidson a fair trial "free of tainted evidence."

"The illegal eavesdropping by FPD has tainted the entire process of prosecuting the case and in the modern era it is almost unfathomable that law enforcement would do it," Pederson wrote.

There's no way to determine what illegally gathered information Farmington police shared with the DA's office because information from the call is included in multiple court documents and police reports, Pederson wrote.

The Farmington Police Department said in a statement that providing justice for Tapaha and his family was a "paramount priority" for the agency but also said there was no intent to deprive Davidson of his constitutional rights. 

Chief Deputy District Attorney Dustin O'Brien said in a statement that the DA's office did not believe disqualifying the office was necessary but that litigating the judge's ruling would delay prosecuting the case. 

Defense attorney Steve Murphy said the judge's decision was appropriate. 

"It's just a shame to me that in this day and age, that anyone would ever think it would be appropriate to record anyone talking to their attorney," Murphy said. 

Pederson ordered the DA's office to designate another prosecutor by Dec. 6 or he would reconsider the dismissal of the homicide case. 

New Mexico unwavering on film incentives after set fatality - By Morgan Lee Associated Press

New Mexico legislators expressed nearly unfettered support for state tax incentives to the film industry at a public hearing on Tuesday, in the wake of the shooting death last month of a cinematographer from gunfire on the set of a western movie production.

New Mexico offers a rebate of between 25% and 35% of in-state spending for video production that helps filmmakers large and small underwrite their work.

At the hearing, state economic development officials and consultants presented an analysis showing an eight-fold benefit to the local economy for every tax dollar spent on the film tax credit. Credits toward film productions were estimated at $109 million for the year ending in June 2021, and $52 million the prior year.

"D.N.P. — do not panic. New Mexico supports the film industry," Democratic state Rep. Moe Maestas said, amid discussions about how to bolster the local film industry financially. His supportive comments were echoed by several other legislators in the Democratic majority.

Producers of "Rust" — where a gun fired in rehearsal by actor Alec Baldwin killed cinematographer Halyna Hutchins and wounded a director — registered to receive a state rebate but are unlikely to ever collect after filming was halted.

The Santa Fe County Sheriff's Office is investigating the Oct. 21 death on a movie set that had inexperienced crew members, apparent safety lapses and a serious labor dispute. Authorities say Baldwin thought he was handed a gun without any live rounds before firing it during a rehearsal at the Bonanza Creek Ranch outside Santa Fe.

Workplace safety was not discussed at Tuesday's legislative hearing, and officials took pains not to mention "Rust" directly.

Amber Dodson, director of New Mexico Film Office, noted that legislative reforms in 2019 opened up greater incentives to film production companies that demonstrate long-term commitments to New Mexico through a 10-year contract on a qualified production facility. Netflix and NBCUniversal have secured that "film partner" status that lifts the cap on annual production rebates.

"These deals certainly create a long-term sustainability to this industry," Dodson said. "So we're not a flash-in-the-pan place to go shoot a western anymore. We are a hub in an ecosystem that is long-term and sustainable."

New Mexico Gov. Michelle Lujan Grisham, an ardent supporter of the film industry, has indicated that she'll await additional facts in the "Rust" investigation before considering any changes to state regulations.

The New Mexico Film Office recently started requiring a written commitment from filmmakers who apply for financial incentives to follow industry safety guidelines.

Several companies came together to finance and produce "Rust," including Baldwin's El Dorado Pictures. The film, which is based on a story by Director Joel Souza and Baldwin, was financed in part by Las Vegas-based Streamline Global, which describes its business model as "acquiring films that offer certain tax benefits" that may "reduce the owner's federal income tax liability from income earned from other sources."

BondIt Media Capital, an independent film financier, also bankrolled "Rust."

Leon Forde, managing director for video-sector consulting firm Olsberg SPI, said New Mexico's local film production incentive is among the most generous in the US.

State Rep. Larry Scott of Hobbs, a Republican in the legislative minority, was dismissive of the new economic study and suggested New Mexico may be spending too much on a film industry that directly employs fewer than 8,000 people.

"My fear here is that we've sent the foxes to count the chickens," Scott said.

Film production expenditures climbed to nearly $624 million for the year ending in June, an all-time high since the film tax rebate was introduced in 2003. 

Sheriff: Boy dies after dog mauling at grandparents' home - Associated Press

Doña Ana County authorities say a 6-year-old boy has died after being mauled by at least one dog at his grandparents' home in the Las Cruces area.

The boy died Monday shortly after being airlifted to a hospital from the Mesilla Park neighborhood where the mauling occurred, the Sheriff's Office said.

Sheriff Kim Stewart said the boy apparently got into a caged area containing multiple dogs and that at least one dog attacked him.

It wasn't clear how the boy got into the caged area or what happened before the boy was attacked.

An investigation into the boy's death continued., Stewart said.

The boy's name wasn't released.

Vaccines making Thanksgiving easier, but hot spots remain - By Ed White Associated Press

The U.S. is facing its second Thanksgiving of the pandemic in better shape than the first time around, thanks to the vaccine, though some regions are seeing surges of COVID-19 cases that could get worse as families travel the country for gatherings that were impossible a year ago.

Nearly 200 million Americans are fully vaccinated. That leaves tens of millions who have yet to get a shot in the arm, some of them out of defiance. Hospitals in the cold Upper Midwest, especially Michigan and Minnesota, are filled with COVID-19 patients who are mostly unvaccinated.

Michigan hospitals reported about 3,800 coronavirus patients at the start of the week, with 20% in intensive care units, numbers that approach the bleakest days of the pandemic's 2020 start. The state had a seven-day new-case rate of 572 per 100,000 people Tuesday, the highest in the nation, followed by New Hampshire at 522.

In the West, New Mexico, Arizona, Colorado, Utah and Montana also ranked high. Some Colorado communities, including Denver, are turning to indoor mask orders to reduce risk, a policy that has also been adopted in the Buffalo, New York, area and Santa Cruz County, California.

The statistics in Michigan are "horrible," said Dr. Matthew Trunsky, a respiratory specialist at Beaumont Health in suburban Detroit.

"We got cold and moved indoors and have huge pockets of unvaccinated people," he said. "You can't have pockets of unvaccinated people who don't want to be masked and not expect to get outbreaks, not expect to lose parents, not expect to lose teachers."

During a recent office visit, he encouraged a patient who uses oxygen to get vaccinated. The patient declined and now is in the hospital with COVID-19, desperately relying on even more oxygen, Trunsky said.

He said he continues to encounter patients and their family members espousing conspiracy theories about the vaccine.

"We've had several people in their 40s die in the last month — 100% unvaccinated," Trunsky said. "It's just so incredibly sad to see a woman die with teenagers. Especially with that age group, it's nearly 100% preventable."

In Detroit, where less than 40% of eligible residents were fully vaccinated, Mayor Mike Duggan said hospitalizations have doubled since early November.

"We have far too many people in this country that we have lost because they believed some nonsense on the internet and decided not to get the vaccine," said Duggan, a former hospital executive. 

Despite hot spots, the outlook in the U.S. overall is significantly better than it was at Thanksgiving 2020.

Without the vaccine, which became available in mid-December 2020, the U.S. a year ago was averaging 169,000 cases and 1,645 deaths per day, and about 81,000 people were in the hospital with COVID-19. The U.S. now is averaging 95,000 cases, 1,115 deaths and 40,000 in the hospital.

Airports have been jammed. More than 2.2 million people passed through security checkpoints on Friday, the busiest day since the pandemic shut down travel early in 2020. On some recent days, the number was twice as high as Thanksgiving a year ago.

Sarene Brown and three children, all vaccinated, were flying to Atlanta from Newark, New Jersey, to see family. People close to them have died from COVID-19.

"I'm thankful that I'm here, and I'm not in heaven, and I'm thankful for my family and that God helped me survive," said Neive Brown, 7, who got her first dose.

More than 500,000 Americans have died of COVID-19 since the last Thanksgiving, for an overall death toll of over 770,000.

"We would encourage people who gather to do so safely after they've been fully vaccinated, as we've been saying for months now," said Dr. Rochelle Walensky, director of the Centers for Disease Control and Prevention. "I do think that this is very different because we actually have the tools to prevent the vast majority of cases."

Dr. Eric Topol, head of the Scripps Research Translational Institute, said his optimism is tempered by the delta variant's ability to jump from person to person, especially among the millions who are unvaccinated or are due for a booster. 

"That equals very high vulnerability," Topol said.

Denver's public hospital, Denver Health, is sending people elsewhere because of a lack of beds. Staff members were exhausted from treating COVID-19 patients and others who had postponed other medical needs, chief executive Robin Wittenstein said.

"Our system is on the brink of collapse," she said.

Arizona reported at least 2,551 COVID-19 patients in hospitals, far below the peak of last winter but still reason for concern. Officials said beds were limited.

New Mexico recoups $24 million in mortgage-crisis settlement - Associated Press

New Mexico's public pension and investment funds will receive $24 million from several major financial institutions to resolve a lawsuit over mortgage-backed securities and the financial crisis more than a decade ago, state prosecutors said. 

New Mexico Attorney General Hector Balderas on Monday announced the settlement with seven financial institutions, including Barclays Capital, Goldman Sachs and Merrill Lynch. 

The settlement resolves allegations of inadequate disclosures about mortgage-backed securities that were purchased by the state pension and investment funds. Claims were dismissed with no admission of liability.

The payout goes toward state investment accounts and public pension funds overseen by the Public Employees Retirement Association and Education Retirement Board.

The entire settlement is for $32.5 million. Outside plaintiffs who first brought the lawsuit on behalf of New Mexico taxpayers will receive 25% of the settlement, or just over $8 million, under provisions of the state Fraud Against Taxpayers Act.

The New Mexico Public Employees Retirement Association alone lost more than $4 billion in assets in the Great Recession, which was touched off in late 2007 by losses on subprime mortgages that battered the U.S. housing market.

Jerri Mares, a spokeswoman for the attorney general's office, said the state is at the tail end of litigation regarding the mortgage crisis. 

The agency continues to provide advocacy services to mortgage consumers, including informal dispute services.

El Vado Dam to undergo extensive repairs to prevent leaks -Albuquerque Journal, Associated Press

Major repairs to a northern New Mexico dam will mean irrigation water will have to be stored elsewhere.

Repairs on El Vado Dam are slated to start next spring, leaving it unusable for at least a year to deliver water to the Middle Rio Grande Valley, said Page Pegram of the New Mexico Interstate Stream Commission. 

Abiquiu Lake most likely will be the backup, Pegram told the Albuquerque Journal.

The U.S. Bureau of Reclamation plans to address cracks in El Vado's steel faceplate and the foundation, and the deteriorating spillway. The dam was built in the 1930s and its current condition isn't safe for the public, the agency said.

El Vado Dam can hold back about 60 billion gallons of water, but the capacity will be reduced significantly while the repairs are being done. 

Persistent drought also has meant less water in New Mexico reservoirs, and the region could be in store for a dry winter with a La Niña weather pattern.

"Water supply conditions for the Middle Rio Grande in 2022, are expected to be significantly diminished," Pegram said. "We expect stream flows in the basin to remain below average."

Interior head: Chaco protections 'millennia in the making' - By Susan Montoya Bryan Associated Press

A few big rigs carried oilfield equipment on a winding road near Chaco Culture National Historical Park, cutting through desert badlands and sage. Mobile homes and traditional Navajo dwellings dotted the landscape, with a smattering of natural gas wells visible in the distance.

This swath of northwestern New Mexico has been at the center of a decades-long battle over oil and gas development.

On Monday, U.S. Interior Secretary Deb Haaland joined pueblo leaders at the park to reflect on her office's announcement last week that it would seek to withdraw federal land holdings within 10 miles (16 kilometers) of its boundary, making the area off-limits to oil and gas leasing for 20 years.

The action halts new leases in the area for the next two years while federal officials consider the proposed withdrawal.

"This celebration is decades in the making," Haaland said. "Some would even say millennia in the making."

While the Chaco area holds significance for many Indigenous people in the Southwest, the Navajo Nation oversees much of the land that makes up the jurisdictional checkerboard surrounding the national park. Some belongs to individual Navajos who were allotted land by the federal government generations ago. 

Navajo leaders support preserving parts of the area but have said individual allottees stand to lose an important income source if the land is made off-limits to development. They're calling for a smaller buffer of federal land around the park as a compromise to protect Navajo financial interests. 

The rough road to the park was lined with brightly colored signs Monday in support of the allottees, many noting the importance of oil and gas development to their livelihoods.

"Our land, our minerals. We support oil and gas," read one sign.

Another said Haaland hasn't met with allottees. Haaland told reporters later Interior officials have spoken with allottees.

Environmentalists, Democratic politicians and other tribes had been pressuring Haaland — the first Native American to lead a U.S. Cabinet agency — to protect a broad swath of land beyond the park.

A former Democratic congresswoman from New Mexico, Haaland sponsored legislation during her U.S. House term to curb oil and gas drilling. She has called the area sacred, saying it has deep meaning for those whose ancestors once called the high desert home.

"This is a living landscape," Haaland said Monday. "You can feel it in the sun, the clouds and the wind. It's not difficult to imagine centuries ago children running around the open space, people moving in and out of doorways, singing in their harvest or preparing food for seasons to come — a busy, thriving community."

A World Heritage site, Chaco is thought to be the center of what was once a hub of Indigenous civilization. Within the park, walls of stacked stone jut up from the bottom of the canyon, some perfectly aligned with the seasonal movements of the sun and moon. Circular subterranean rooms called kivas are cut into the desert floor. 

More discoveries are waiting to be made outside the park, archaeologists have said.

The fight over drilling beyond the park has spanned multiple presidential administrations. The Trump and Obama administrations also put on hold leases adjacent to the park through agency actions, but activists want the area permanently protected.

The Biden administration and Haaland's agency have vowed to consult with tribes over the next two years as the withdrawal proposal is considered, but top Navajo leaders already have suggested they're being ignored. Noticeably absent Monday were the highest elected leaders of the tribe's legislative and executive branches.

Navajo Nation Council Delegate Daniel Tso talked about the significant cultural ties that Navajos have to the area and cited concerns about increasing traffic, dust and other pollution that stems from oil and gas development. He called the recent executive orders a "giant step."

"It creates a process where we have to continue to stand up for the land, stand up for the air, stand up for the water, stand up for the sacred," he said.

Other tribal lawmakers and allottees have called for congressional field hearings to be held before any decisions are made.

"The Interior Department unilaterally made this withdrawal proposal without proper tribal consultation, now directly affecting our families on the Navajo Nation. The (Bureau of Land Management) now wants to initiate formal tribal consultation after the fact," Navajo Council Delegate Mark Freeland said last week following Haaland's announcement.

Navajo Council Speaker Seth Damon also has said the Biden administration needs to respect tribal sovereignty and the government-to-government relationship it has with the tribe.

Federal officials said the ban on new petroleum leasing in the area will not affect existing leases or rights and would not apply to minerals owned by private, state or tribal entities. The Navajo allottees have argued it wouldn't be economical for companies to continue development just on their land.

Navajo officials also noted that Congress commissioned a cultural resource investigation of the area to be performed by experts. That work is ongoing, and they suggested the Biden administration wait until those results are compiled before initiating the 20-year withdrawal.

Haaland encouraged people to help inform land management going forward. She said she couldn't help but think of her grandmother's home in Mesita Village, in Laguna Pueblo, when she looked at how carefully the stones were set at Chaco to build the walls that enveloped its residents and visitors with great care and love. 

"The responsibility we all have to our future generations is to take care of our American heritage and to model our care of the earth after the people who once lived among these beautiful structures," she said.