If they can do this to Fenn, they can do it to you

First off, Ron Fenn, a local activist, is my friend. This is therefore an opinion piece and I admit my probable bias up front, but that doesn’t mean I abandoned facts or evidence or the rule of law in making the following case that he has unfairly and regularly been scapegoated, maligned and harassed by city employees and police and Frances Luna, owner and publisher of the Sentinel newspaper and city commissioner until last January.

Second, I make Fenn’s case because the public should be warned and alert to the increasingly authoritarian society that prevails and worsens in T or C. Democracy and the rule of law and their equal protections are nearly gone.

The authoritarian force stems from and continues to grow from a dangerous nexus—Luna’s Sentinel, T or C police and T or C city employees. Orwell in his novel “1984” depicts how a government rules and controls the people through propaganda, praising compliant and blind loyalty to heroic leaders and disparaging those who dare express independent thought. Similarly the Sentinel has made local government officials the heroes and any dissenting activists, such as Fenn, the villains.

The normal democratic checks and balances have been obliterated. We don’t have a neutral and independent press that holds government accountable and checks T or C police powers to arrest or charge individuals. We don’t have government officials free from pressure applied by their superior elected officials who can fire them at will. This applies to law enforcement too, since their boss is the city commission as well, not an elected sheriff.

Luna, and her father before her, from whom she inherited the paper, were both elected officials. Luna was a city commissioner for two years, a county commissioner for eight years and a city commissioner again for two years. The two generations of combined press and government powers has made Luna a king maker and breaker. Of course she has shattered journalistic ethics in the process as well as violated the Government Conduct Act.

Even though she doesn’t currently hold office, she stated about half a year ago she is considering running for state legislature, therefore all her writings and publications and back room maneuverings can still be considered propaganda and political campaigning. Her brand, obvious at a glance at her paper, is government boosterism, law enforcement boosterism, business boosterism, Republican-religious-rightism and pro-gunism. No doubt these views will propel her into higher office in this largely red district.

Fenn has been Luna’s favorite scapegoat over the years. She has often derided him from her bully pulpit as a city and county commissioner and excoriated him in her “news” stories and opinion pieces, especially playing up cases in which Fenn has been cited into court by the city. He’s tried by Luna in the press before the trial (she has never interviewed him) and when the case is dropped, as so often happened, she does no follow-up story.

Of the five times the city has charged Fenn he has been found guilty once. It was the first case brought against him—running a business without a city business license and soliciting. He had published cards stating he would videotape tourists getting on the bus to go to the spaceport with a suggested donation of $10 to cover his expenses and editing and electronic delivery costs.

In the second case the chief of police at the time, Librado Alirez, charged him with trespassing while he was circulating a petition at the Lee Belle Johnson Recreation Center to have that same building’s use returned to the people. The city commission turned it over to the New Mexico Spaceport Authority and Geronimo Trail National Scenic Byway for use as a tourist visitors’ center. The case was dropped before it went to trial. It was and is a public building and Fenn had every right to be there. (Side note: since the Lee Belle Johnson Center is undergoing repairs, the people will pay nearly $50,000 to lease space at 523 S. Broadway for three years starting June 1. This site will serve as a temporary visitor’s center, again to house Geronimo Trails and the spaceport.)

In the third case Fenn was cited into court for assault on police officer Erica Baker at the animal shelter, which was dismissed before the trial, probably because the body cam showed Fenn’s lack of threat.

In the fourth case Fenn was again cited for battery against Baker at the private residence of Susie Crow. Officers and electric workers showed up en masse to remove Crow’s electrical meter and to replace it with a smart meter. Again the body cam saved Fenn, showing his lack of threatening behavior. The case was dismissed even before arraignment.

In the fifth and most recent case, Fenn was charged with tampering with a city utility and larceny of city electric power. Once again the prosecuting police officer, Rafael Marin, has dismissed the case after a hearing was held June 6 at municipal court, with Judge Beatrice Sanders presiding.

Sanders only heard a preliminary motion, not the whole case. Luna’s attorney, Mark Filosa, filed a motion to quash Luna’s subpoena to appear as a witness. The municipal court served the subpoena on behalf of Fenn, as it normally does for defendants’ witness requests. Filosa’s motion also asked that Fenn pay for Luna’s attorney’s fees. Sanders didn’t rule on the quashing of the subpoena. She took exception to Filosa’s claim that the court didn’t serve Luna properly, explaining her court rules only required a mailing or posting at her home or place of business, which had been done. Sanders also said only higher court judges had the authority to order the reimbursement of attorneys’ fees. Then Sanders said she had heard too much from Fenn, city police and city employees to try the case, as well as having tried a related case, Fenn’s neighbor. She recused herself and said she would “transfer” the case to magistrate court.

The same day Fenn received an email from the prosecuting police officer, Rafael Marin, stating that he had dismissed the case “without prejudice,” meaning Fenn could be cited into court again at a later date.

But let’s delve into more detail about Luna trying to quash her subpoena. Luna’s attorney, Mark Filosa, argued she was a journalist and should not be required to testify or to reveal her sources, citing U.S. Supreme Court Case, New York Times v. Sullivan, which clarifies that a reporter must have intentional malice, that is know they are lying to make a public person look bad, before they can be held liable for lying. This is a very tangential and off-point argument considering that it is arguable Fenn is a public person, especially if it is Luna who has made him a notorious, public person. Second, Fenn is not suing Luna for libel or defamation or damages, he just called her as a witness.

Filosa also argued that state law 38-6-7 exempts journalists from being subpoenaed, which is not true. The New Mexico judiciary rejected the legislature’s attempt to control what happens to journalists called to court as a breach of the separation of powers. The state law protects journalists in non-judicial proceedings from revealing sources or information. If the journalist is called to a judicial proceeding, then New Mexico Supreme Court Rule 11-514 (B) (2) applies: “Confidential information that a journalist obtains or sources that he consults while ‘participating in any act of criminal conduct’ are not protected,” according to the summary of laws on the Reporters Committee website at rcfp.org. In addition, the court rule states the journalist must testify if their knowledge advances justice and the greater public interest.

Filosa, during his speech, was briefly on point. If Fenn “proved the Sentinel is controlling prosecutorial decisions of the city,” Filosa said, Luna would have to testify.

Fenn called Luna as a witness because he suspected she engineered his being cited into court. He had received a citation from certified Police Officer Marin on Feb. 16, not from Code Enforcement Officer Jamie Sweeney, the investigating official on the scene Feb. 15. Fenn reasoned that Marin wrote the ticket because Sweeney is not a certified officer. Since nearly two months had passed and the issue was resolved on Feb. 16, Fenn thought the citation was dead. He was surprised when he was cited into court on April 4, again by Marin, this time with Marin’s affidavit attached, also dated April 4. Affidavits usually correspond to the date of the site investigation, strengthening Fenn’s suspicion that Luna had pushed Marin to take him to court.

Fenn submitted an Inspection of Public Records Act Request to the court for any communication received from Luna. There were three emails sent on April 3 in which Luna asked the court where Fenn’s case was on the docket, learning that no such case had been filed. The next day the case was filed in municipal court by Marin, who would act as the prosecutor. The timing nearly proved Luna pressured the police to file the case against Fenn. If he could harden up that circumstantial evidence with corroborating testimony from officers or electric workers or from Luna herself (they would be under oath) then he could prove it was malicious prosecution and he would be absolved of the charges.

Although I think the city had a marginally valid case against Fenn for larceny and tampering, they messed up by violating his neighbor’s rights to freedom from unwarranted search and seizure, due process and due notice. I think Fenn could have argued any evidence against him was the poison fruit of their illegal actions and a fair judge would have dismissed the case with prejudice.

Sweeney went to 312 Foch, Penelope Schiefer’s house and Fenn’s neighbor, on Feb. 16. She was accompanied by a slew of electric department workers, including department head Bo Easley, as can be seen on Sweeney’s body cam footage, which Fenn received during the discovery process and shared with me. Schiefer wasn’t home. They proceeded to open Schiefer’s junction box without a search warrant, not even pausing, although city code 14-30 only allows access to the city-owned electric and water meters during “reasonable hours.”

The electric department employees also examined the cable and a second junction box installed below Schiefer’s original junction box, and then hooked a signaling device to the cable below it and tracked the signal’s travel to Fenn’s property line.

Sweeney, on the body cam, says, “The ordinance doesn’t say that we can disconnect,” to Electric Director Bo Easley, but then defers to him, allowing him to make the decision, despite his lack of enforcement authority. Easley orders the cable below the second junction box be cut, that is, Fenn’s solar power to Schiefer, also causing Fenn to lose his nearly undetectable connection to the city’s grid via Schiefer’s junction box.

Chapter 14 on city utilities states disconnection will be via a power switch installed at the meter. Cutting someone’s wire is illegal destruction of private property and certainly reeks of arrogance with no reference to the law.

Fenn told me he hooked into Schiefer’s line because his solar system inexplicably shut down periodically without this slight connection—which opened the door to the larceny charge. The solar power Schiefer received from Fenn far exceeded the tiny pull of city electricity that Fenn received. Fenn thinks it is legal for him to have taken that bit of power from Shiefer because it is power “she already paid for,” and therefore she can give it away if she wants to. Similarly it is legal for him to give his neighbor his excess solar power and the government has no right to interfere in their private, verbal contract. Fenn also points out that Shiefer’s meter going backward shows the city is getting free kilowatts. That’s giving, not stealing, he says.

Fenn’s second charge, “Tampering with utilities,” city code 8-90, also strains at gnats. His donation of solar power to Shiefer made her meter go backwards, and the offenses and violations portion of the city code is broad enough to make this tampering. Any interference with “any pipe, meter, connection, appurtenance or property belonging to or any part of the utility system” is considered tampering. In Marin’s affidavit—a particularly specious document since he wasn’t there and mouths what Sweeney and others tell him—claims Schiefer’s meter stopped at one point and then went backwards.

City code 14-33 states the only time a city’s electric meter can legally go backwards is if the customer has a “net metering interconnection agreement” with the city, and Schiefer does not.

So they had evidence of Schiefer’s meter being tampered with, but they still couldn’t definitively prove it was Fenn’s fault, even though they proved a cable went underground to his property line.  You can hear Sweeney lay out her legal plan to get Fenn on the body cam. “I don’t have to talk to him,” she says, she’ll come back and get Schiefer to confess Fenn installed the cable.

This visit to Schiefer occurs a few hours later, the electric crew departed and Sweeney alone. Schiefer is obsequious with Sweeney, giving herself and Fenn up immediately, even joining the scapegoaters, saying, “You know who lives next door,” Fenn’s notoriety being broadly known due to Luna. Schiefer even falsely claimed she only let Fenn hook in “because he needed the power.”

Sweeney keeps the pressure up, telling Schiefer she’s “stealing” and “we could have cut your power off” completely, but they only cut Fenn’s wire. Schiefer is grateful and vows to follow Sweeney’s advice to not speak to Fenn.

If Schiefer had kept her mouth shut about her deal with Fenn and pushed back on the invasion of her property, she and Fenn probably wouldn’t have been charged, let alone cited into court.

City code 14-30 not only states that the city must limit its access while on private property to city-owned meters, it also states the city must give “reasonable notice” to owners before disconnecting power, which includes giving them the “opportunity to correct any violations,” and to appeal any violations—first to the director of the electric department and then the city manager and then the city commission.

But Schiefer let her rights be abused and sunk herself in the process, guaranteeing she would be cited into court in order to firm up evidence against Fenn. Schiefer pleaded guilty, receiving a deferred fine from Judge Sanders.

Nevertheless, Sweeney and Marin sat on Fenn’s citation and didn’t file it with the court. On the body cam she says “you know he is going to resist,” and throughout the search no one dared to go onto his property.

Fenn no longer had a city meter that would allow them onto his property. He had gotten off the city grid entirely for many months prior in response to Electric Department Director Bo Easley cutting off his electric power in the middle of winter because he refused to have a smart electric meter, which he believes is a health risk and a possible spying device. The Attorney General’s Office had to intervene, telling the city it was illegal to cut people’s power off without notice, especially when it’s freezing or blazing hot. After several days Easley was forced to turn Fenn’s electricity back on, but the message was clear. Easley could cut power any time, he was ubermensch. Fenn also got off grid because the city commission, led by Luna, arbitrarily imposed a punitive charge, $50 a month, to not to have a smart electric meter.

Fenn stopped going to city commission meetings more than a year ago, dropping his activism, instead spending his time transporting patients to doctors’ appointments. Still Easley and Luna went after him.

But it looks as if Luna rethought her latest persecution of Fenn and realized it was boomeranging onto her. It is likely she urged Marin to drop the case, although at the municipal court hearing she turned around and smiled at Marin when Judge Sanders recused herself, evidently happy the case was going to magistrate court. Luna may have recognized that Filosa wasn’t convincing, that she would have to pay him again to have the subpoena quashed for the magistrate trial, which may or may not work. Even if the subpoena was quashed, the city employees would still be subject to Fenn’s questioning, and if they conspired, they might expose her back-room manipulations and unethical-journalist practices. Lying in court has consequences. Conspiracies among bullies often fall apart, similar to gang members confessing  first to get off as informers, implicating their cronies and letting them take the rap. Better to drop the case, Luna probably thought; but dismiss it “without prejudice,” to keep the pressure on Fenn. That way Fenn can’t clear his name and he’ll still have to worry the city will cite him into court again.

This is the Orwellian pattern, and it is getting worse. People like Luna, Easley, Sweeney and Marin ignore city code while holding Fenn and other activists their superiors set them on to a higher and sometimes nonexistent standard, while favored people, such as Mayor Amanda Forrister, get 30 charges dropped with prejudice, animal cruelty notwithstanding. Luna made Forrister a hero in her articles and Fenn a villain of long standing. The message is clear: We rule, not the rule of law. You better be compliant or else. This is working, since most of the good people do nothing.