With Gov. Michelle Lujan Grisham’s orders to close “non-essential” businesses, enforcement of those orders falls to the New Mexico State Police (NMSP). And, several local businesses have received visits from NMSP officers telling them “complaints” have been filed and the business needs to close because of state orders.
“They told me they had several reports that we were open to the public, that I couldn’t do that, and I had to shut down,” said Country Store Quilt Shop in Lovington owner Dee Ann Kimbro about when NMSP officers arrived at her business.
But, during these times of heavy-handed measures imposed by state officials, what should a business owner, who is trying to keep from going out of business, do if NMSP officers arrive at their business?
The Centers of Disease Control and Prevention (CDC) states it estimates about 1/3 of the world’s population, about 500 million people at the time, became infected during the H1N1 Spanish Flu of 1918 — the closest example we have to COVID-19. Similarities with how the virus outbreak was handled without a vaccine, are also similar to the approach being taken by some today.
Control of the virus worldwide were “limited to non-pharmaceutical interventions such as isolation, quarantine, good personal hygiene, use of disinfectants, and limitations of public gatherings, which were applied unevenly,” the CDC’s website says about the 1918 pandemic.
Lea County Sheriff Corey Helton has said all along the Lea County Sheriff’s Department will not enforce any of the executive orders issued by the governor during the declared health emergency. But, when dealing with any law enforcement, the best plan is to be polite and be courteous.
“It’s a hard position for a business owner to be in. All they’re trying to do is make a living,” Helton said. “You need to follow what they are saying, but I also support business owners who want to stay open. If they show up, there’s no reason to not be courteous.”
Criminal defense attorney and Hobbs City Commissioner, District 2, Chris Mills said the time during a NMSP visit, it is not the time to argue.
“The place to argue with the State Police is not at the time they are out there. They (business owners) need to follow their(officers) directions,” Mills said. “The place to file your grievances is going to be in court and through the legal process.”
Mills said he recommends a business owner comply with what NMSP officers tell them while they are there.
“Unfortunately, if the police are out there and telling you to shut down, until a judge says otherwise, that’s a lawful order,” Mills said. “They have badges and they have guns. You need to listen to them.”
Helton agreed, but also said business owners who are choosing to remain open should do so by thinking outside of the box, so as to lessen the chances NMSP will walk through their door.
“Do it discretely, lock your door, make appointments, allow only one person at a time. don’t draw attention to yourself,” Helton said. “Again, these are people in dire need of earning a living, and (NMSP) is essentially telling them, ‘you can’t be open, you need to go home.’”
And, while it is possible the “anonymous” complaints officers might use as a basis for closing a business might be a violation of the 6th amendment of the constitution, they do have a legal right to respond to the calls. In addition, NMSP does have a process in place for business owners if a warning is issued.
“If someone calls dispatch with a crime, then (law enforcement) has a legal right to be at that location at that time,” Helton said. “With health orders, enforcing that, it’s the same.”
“My understanding is there is a hotline you can call to clarify that,” Mills said. “As an example, there was a car wash in Artesia that was shut down Monday, and they went through that process, and they (NMSP) let them reopen.”
“The State Police will only show up if someone calls the hotline and complains on (the business owner),” Helton said. “If they give you a citation, or a cease and desist order, I think in that order it gives you the information to file an appeal to Santa Fe. But, if they don’t issue a cease and desist, and just warn you of the order that you have to be closed down, kind of a verbal warning,I recommend people just think outside of the box.”
As with any legal matter, recourse can sometimes take months, or even years, after the end of the incident — and Gov. Lujan Grisham has indicated she may well keep extending her shutdown orders for the remainder of the year, and into 2021.
“Some things take months, if not years to resolve,” Mills said. “Anything that involves any sort of liability with state government, no matter who wins, there’s going to be an appeal, then there’s going to be an appeal from that, so you’re looking that the ultimate outcome might be in 2023. These cases will go on forever.” Mills pointed out an example of a recent case in Lovington that started in 2005, and was only recently settled.
And, with the statute of limitations being two years, Mills said some cases won’t even start for up to two years after the damage ends — when the orders are finally lifted.
As law enforcement, officers with NMSP may not want to have to visit business owners and tell them to close, so the blame really lies squarely on the shoulders of Gov. Lujan Grisham.
“They’re in a tough position to be in. I don’t agree with their position, but they are doing what they are mandated to do from the governor,” Helton said. “I don’t agree with the State Police. I don’t agree with the governor, and if I had some kind of legal ability to kick the State Police out of here, they would have been gone a month ago.”
“I know a lot of the state cops personally, and this is tearing them up,” Mills said. “This is the last thing that they signed up for. You feel for them, because they’re just doing what they are told. It’s really not them. It’s the person in charge you really have a problem with.”
And, as the top official in the state Gov. Lujan Grisham is the person who has issued the orders and asked for neighbors to spy on neighbors and to report directly to the state.
“Your argument really needs to go to the governor, not a state employee making $18 to $24 and hour,” Mills continued. “And, a lot of these cops personally think this is not a good idea, people should be allowed to do (what they need to do), but they’re doing their job, not expressing personal beliefs and feelings.”
But, if a visit happens, the best course of action is to be polite and do as instructed by NMSP officers. Owners can ask for clarification, and if they have evidence they are an “essential” business, officers might verify and then either go ahead and close the business, or deem it officially as essential.
If NMSP have already visited a business, and given a warning, and then get called second time, business owners should already be planning on how they will handle being open when told to be closed, Helton said.
“If they show up, it doesn’t mean you have to open the door,” Helton said. “Think outside the box. Lock your door, make arrangements for a patrons to visit your business and to let them in, and minimize your exposure where people can see what’s going on. Limit what people can see. Let them in the back door. I’m just saying to think outside the box.”
Helton said people are hurting from the governor’s actions, and being told they can’t earn a living, while mass market retailers continue to operate with almost no change.
“Has this become a legal issue or a moral issue? As a police officers we took an oath to defend the constitution, but we also defend the citizens we live with and around,” Helton said referring to the oath law enforcement and military take to defend the constitution from threats both foreign and domestic. “Sometimes it takes a little conviction to stand up. What’s right is right.”
And, Helton believes people will remember this time far into the future, who has moral character and who doesn’t, and who stood for citizen’s rights, and who didn’t.
“The things that are going on today, if it’s the State Police, or the governor, or the tactics, or designating who’s essential, the one thing about it, is nobody’s going to forget. Nobody will forget how they were treated by the governor or the State Police, a judge, a sheriff’s deputy, a county commissioner — nobody is going to forget,” Helton said. “People are going to remember.”
Blake Ovard may be reached at managingeditor@hobbsnews.com.
