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Los Alamos County Files Petition For Cease And Desist Against Sheriff

on October 6, 2017 - 2:58pm
By MAIRE O'NEILL 
Los Alamos Daily post 

Los Alamos County has asked the First Judicial District Court to issue a temporary restraining order requiring local Sheriff Marco Lucero to cease and desist from enforcing state law and County ordinances.

In a verified petition for a temporary restraining order, preliminary injunction and permanent injunction filed Oct. 5, the County alleges that until Lucero came into office, the elected Sheriff of Los Alamos County has complied with the limits imposed on the Office of Sheriff by the adoption of an amendment to the County Charter by not performing law enforcement duties assigned to the Los Alamos Police Department. It alleges that former sheriffs carried out only “ministerial duties” such as serving civil process and keeping the records required by the Sex Offender Notification and Registration Act (SONRA).

The petition states that despite the constitutional authority provided to incorporated cities to assign duties assigned by law to county officers and employees of an incorporated city as well as the affirmation of authority in the Vaughn case, Lucero “persists in his belief that he has a duty to engage in law enforcement activities”.

“(Lucero) has acted on that belief by making arrests, filing criminal complaints and conducting criminal investigations,” the petition states.

It cites two incidents in which Lucero made arrests. The first was a warrantless arrest in April of James Dyson who was incarcerated at the time for sexual exploitation of children, for failing to meet the registration requirements of SONRA. Lucero subsequently filed a criminal complaint containing a statement of probable cause against Dyson in Los Alamos Magistrate Court. Dyson was subsequently sentenced to three years in prison on both charges

In the second incident, Lucero accepted a complaint from Los Alamos resident Lisa Brenner regarding criminal damage to property, then conducted a criminal investigation to determine who was causing recurring criminal damage to property to political signage related to the County’s Recreation Bond Election. Lucero installed motion-activated cameras to monitor the signage and identified two juvenile suspects.

The petition states Lucero conducted interviews of the suspects, provided Miranda warnings to ensure that any statement made by them would be admissible in any future prosecution. The petition also states that Lucero took possession of certain physical evidence in the alleged crime, sealed and secured those items as evidence, and subsequently filed the findings of his investigation in Los Alamos Municipal Court.

The petition alleges that Lucero admitted, in a case he filed in Santa Fe District Court against the County Council, that he actively enforces state laws and has arrested individuals for violating those laws while serving as sheriff. That case was dismissed by Lucero after the County filed a motion to dismiss based on the fact that it should have been entered in Los Alamos District Court and not Santa Fe District Court.

The County maintains Lucero has exceeded the limits of his lawful authority imposed on him by making arrests, filing criminal complaints and conducting criminal investigations. The petition claims he persists in his belief that he has a legal duty to engage in law enforcement activities and therefore he is likely to continue to engage in law enforcement activities. It says this is causing an “ongoing irreparable injury” to the County and the public that is “likely to continue”.

The petition states that the County has no adequate remedy at law to stop Lucero exceeding the limits of his lawful authority imposed by the citizens under the Charter amendment. It maintains Lucero would suffer no injury should a temporary restraining order, preliminary or permanent injunction be issued ordering him to cease and desist from any and all law enforcement activities as such an order would only require him to “comport himself” within the limits placed on the Office of Sheriff of Los Alamos County.

The petition also states that any of the three options would not be adverse to the public interest and again, would only require Lucero to comport himself to the limits placed on him by the public. It states that the public consented to be governed by a Charter that placed sole authority to conserve the peace and enforce State laws and County ordinances in the appointed police department. It removed that authority from the Office of the Sheriff and prohibited the Sheriff from duplicating or performing duties assigned to the police department such as conserving peace and enforcement of State laws and County ordinances.

The County asked for a hearing to afford Lucero the opportunity to be heard and for the issuance of a temporary restraining order to cease and desist from conserving peace and enforcing State laws and County ordinances.

​The petition was signed by County Attorney Alvin Leaphart as well as Assistant County Attorneys Kevin Powers and Kathryn Thwaits.

Los Alamos County issued the following statement regarding its petition for a temporary restraining order, preliminary injunction and permanent injunction against Lucero in his official capacity as Los Alamos County Sheriff:

“Furthermore, the County stated in its response that it would pursue a separate and distinct civil action seeking injunctive relief against Sheriff Lucero, which was filed Oct. 5 in First Judicial District Court.

“With this action, it is the County’s position that the Sheriff has exceeded the limits of his lawful authority imposed on him by the citizens of the County, as affirmed in the Vaughn case, and is asking the Court to issue a temporary restraining order compelling the Sheriff to cease and desist from conserving the peace and enforcing the laws of the State and Ordinances of the County, as well as a preliminary and permanent injunction enjoining and restraining the Sheriff from conserving the peace and enforcing the laws of the State and Ordinances of the County.

“The Sheriff has maintained that he has statutory law enforcement powers equal to those delegated to the Los Alamos Police Department. The County has consistently maintained that, under the County’s incorporated status and the limits lawfully placed on the Office of the Sheriff by the citizens of the County when it consented to be governed by a Charter, specifically Section 304.4, the Sheriff cannot engage in law enforcement activities assigned to the Police Department by the Charter, ordinance or resolution. Because this is a matter of pending litigation, the County will not have any other comment on this lawsuit.”

The Los Alamos Daily Post contacted Lucero early Friday and he said his attorney, A. Blair Dunn, asked that all questions be referred to his office.

Dunn told the Los Alamos Daily Post that the simplest distillation of why Los Alamos County is wrong about the Sheriff is found in a recent Court of Appeals ruling, which states that a municipality may adopt ordinances not consistent with laws of the State for the purpose of providing for the safety, preserving of the health, promoting the prosperity and improving the morals of its inhabitants.

Dunn cited from the ruling that states a local government’s ability to regulate in an area may be preempted either expressly, by language of a statute or impliedly, due to a conflict between the local body’s ordinance and the contents, purposes or pervasive scheme of the statute.

The ruling continues, “A local government is presumed to retain the power to exercise its authority over an activity, so the intention of the Legislature to preempt local control must be clearly stated if express preemption is to result. Even in the absence of express preemption by the Legislature, a County ordinance may be preempted if it conflicts with State statue or regulation or if the statute demonstrates an intent to occupy the entire field.”

Dunn said that as to the Office of the Sheriff, Los Alamos County is preempted from the actions they seek to take.

“In fact, they have always been preempted. They cannot abridge the responsibilities of a county sheriff by state law,” he said. “We will be filing a motion to amend our complaint and then to consolidate the two cases. We do truly wish that Los Alamos County would follow the law without the need for the several lawsuits they have encountered.”

The County filed a response Oct. 4 in a separate case involving an emergency Writ of Mandamus: complaint for declaratory judgment filed by Lucero Aug. 29. The County asked the Court to provide a property remedy to the writ because combining it with a complaint for declaratory judgment was an improper action. The County then filed its petition Thursday as a separate case.

In response to a request for comment from the Los Alamos Daily Post, the County stated that it has consistently maintained that under the County’s incorporated status and the limits lawfully placed on the Office of the Sheriff by the citizens of the County when it consented to be governed by a Charter, specifically Section 304.4, the Sheriff cannot engage in law enforcement activities assigned to the police department by the Charter, ordinance or resolution.

Because this is a matter of pending litigation, the County said it will not have any other comment on this lawsuit.

The case has been assigned to First Judicial District Judge Francis J. Matthew.


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