[Music] welcome to audit the audit where we sort out the who and what and the right and wrong of police interactions this episode covers the Americans with Disabilities Act trespassing and concealing identity and has brought To Us by cop watch's Channel be sure to check out the description below and give them the credit that they deserve on August 19th 2022 officers Kenneth skin Marcos Flores and Gregory rigan of the Albuquerque Police Department responded to a Target location in Albuquerque New Mexico upon reports of shoplifters in the store according to officer skin a Target loss prevention employee then informed him of another quote unquote shoplifter seemingly referring to Matthew mcmanis a 53-year-old man with unidentified disabilities who was struggling to complete a purchase at a self-checkout kiosk although there seems to be some dispute as to whether the Target employee claim claimed Mr mcmanis was a shoplifter or wanted him to be removed from the store the Albuquerque officers approached Mr mcmanis at the self checkout the interaction that followed was captured on body camera go ahead grab your you want go ahead put your money you got to go took me a while take your money coming with us now okay go ahead and grab your money out okay take your money the officers tell Mr mcmanis that he is being criminally trespassed from the store because he quote unquote took two long to make his purchase although it is unclear whether Target asked that Mr mcmanis be removed from the store if a Target employee actually did request that the officers trespass him this action potentially violated title three of The Americans with Disabilities Act title three of the Ada applies to places of public accommodation which section 1281 of title 42 of the United States code defines as including bakeries grocery stores clothing stores hardware stores shopping centers and other sales and rental establishments under section 12 182 of title 42 of the United States code which is part of title 3 quote no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods Services facilities privileges advantages or accommodations of any place of public accommodation by any person who owns leases or operates a place of public accommodation the statute also states that quote discrimination includes a failure to make reasonable modifications in policies practices or procedures when such modifications are necessary to afford such Goods Services facilities privileges advantages or accommodations to individuals with disabilities and also includes now quoting again a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded denied Services segregated or otherwise treated differently than other individuals because of the absence of auxiliary AIDS and Services here it seems obvious that Target could have easily accommodated Mr mcmanus' disability by an employee offering Assistance or moving him to a cashier checkout or by the store simply allowing him the additional time he needed to complete the purchase on his own it is also possible that a court would find that the Albuquerque officers were required to provide reasonable accommodation to Mr mcmanis although the case law surrounding the issue is complicated and conflicted now while title three of the Ada applies to private entities operating places of public accommodation title 2 covers public entities according to section 12132 of title 42 of the US code quote no qualified individual with a disability shall by reason of such disability be excluded from participation in or be denied the benefits of the services programs or activities of a public entity or be subjected to discrimination by any such entity in interpreting this statute courts have consistently held that police departments are public entities under title two and concluded that at least some law enforcement activities are considered Services programs or activities for the purposes of the Ada on the other hand as the Congressional research service noted in its publication the Americans with Disabilities Act and on the street police encounters quote while courts agree the title two applies to at least some law enforcement functions they disagree on whether the Ada applies to on the street police encounters such as use of force or arrests unfortunately we do not have time to explore the nuances of these complex legal issues in a single ATA episode but I have included a link to the Congressional Research Services publication in the description down below and I would encourage you to check it out if you're interested in learning more on this topic down not playing man sit down i a help to me all right you got an idea any man not giving you any idea you don't identify yourself arrest okay you're not police yes we are no you're not your security so what's your name man not your business all right then you're under arrest go a put your hands on your back you're refusing to identify yourself correct who are you calling man you a even he's calling that one that's what he said anyway so just goe and put him your handcuffs cuz he's refusing by himself okay hold on oh I was just paying I was just had my stuff locked in my friend back and the security guards came I I didn't take more time than anyone else the other ones before me so now you're going to be charged okay with concealing identity resisting officers okay no no I and you're going to be trespassed so you can never come back here again okay Officer skin informs Mr mcmanis that he's going to be charged with concealing ident and resisting officers and that he's being trespassed from the Target store so he can never come back we will discuss the concealing identity and resisting charges later in this episode but for now viewers should note that under section 30-14-1 of the New Mexico statutes quote Criminal Trespass consists of knowingly entering or remaining upon the unposted lands of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof as the court of appeals of New Mexico explained in in the 2002 case of State versus Tower which was overruled on other grounds in 2014 although Shoppers are given authority to enter a store that is open to the public as a place of Commerce quote there is no question that a private property owner can restrict the use of its property either to certain persons or to those purposes for which it was dedicated so long as the restrictions are not discriminatory therefore although there are serious questions as to whether Mr mcmanus' exclusion from the property was discriminatory generally speaking an individual can be arrested for trespassing in a public store if they enter or refuse to leave after being told that their permission to be in the store has been revoked however the statute explicitly states that consent to remain must be withdrawn by the owner or occupant of the property and officer skin certainly did not have the authority to unilaterally revoke Mr mcmanus' invitation to shop at the Target although there is some question as to whether Target wanted Mr mcmanis to be trespassed from the property it is clear that no employee from Target ever informed Mr mcmanis that his permission to be in the store had been withdrawn further according to the jury instructions for the New Mexico trespassing Statute in order to sustain a conviction a prosecutor must prove that the defendant had quote actual subjective knowledge that permission to enter or remain had been withdrawn rather than proof of what a reasonable person would have understood therefore if Mr mcmanis was charged with trespassing for refusing to leave the store he could also argue that his disability prevents him from knowing and understanding that his permission to shop had been revoked stand up no that's not right I was just paying my [Music] things I didn't know you were you were you police officers yes we told you that already I didn't see your Ben okay well we told you right Iden security guard sa their police officers we identified ourselves as albquerque police we reason to talk to up and search the reason to talk to you was they didn't want you in there no no more okay so we have the reason we asked you your name you didn't give us your name that's they didn't want you there and they have that right as the business not to want you there anymore we're going to help you stand up we're going to put you in that Patrol unit over there okay sound good no it don't sound good well that's what's going to happen 911 help me please no one on the phone man I didn't see the R I didn't know there were police officers everything's on camera just so you know you became very uh resistant in the store and out here I I'm done explaining to you that's fine you're under arrest you're under arrest okay that's not changing now for what concealing identity resisting officers okay I didn't know you were police off how can I told you that's your own fault you didn't listen okay I can't help you with that you don't want to listen I didn't believe you are police officers stand up you didn't believe us matter security despite the fact that that Mr mcmanis repeatedly explains that he thought the officers were security guards officer skin continues to insist that Mr mcmanis will be charged with concealing identity and resisting officers section 30- 22-1 of the New Mexico statutes which codifies the offense of resisting evading or obstructing an officer prohibits now quoting resisting or abusing any peace officer in the lawful discharge of his duties although physical resistance to an arrest or seizure can constitute a violation of this statute according to the jury instructions for this statute the state must prove Beyond a reasonable doubt that the defendant knew that the individual they were resisting was a police officer accordingly given Mr mcmanus' repeated insistence that he did not know that the officers were law enforcement he would have a defense to a resisting charge additionally Mr mcmanis could argue that he resisted the officer's attempts to physically remove him from the store because they were acting with excessive force the court of appeals of New Mexico concluded in the 2015 case of State versus jahid D that quote an officer is still acting within the lawful discharge of the officer's duties even if conducting a search or seizure that violates an individual's constitutional rights because it is not supported by Reasonable Suspicion or probable cause and therefore that now quoting again if the individual physically resists the officer the individual may be charged with and convicted of resisting evading or obstructing an officer however as the Supreme Court of New Mexico outlined in the 2008 case of State versus Ellis a criminal defendant has a qualified right to assert a self-defense claim against a police officer when the officer is using excessive force and while an individual does not have the right to self-defense when an officer is using necessary Force to affect an arrest they are permitted to defend themselves against excessive use of force by an officer consequently if a court concluded that the officers were using excessive force against Mr mcmanis his nonviolent physical resistance to their attempts to remove him could be found to be legally Justified now as to the concealing identity charge under Section 30-2 2-3 of the New Mexico statutes quote concealing identity consists of concealing one's true name or Identity or disguising oneself with intent to obstruct the due execution of the law or with intent to intimidate hinder or interrupt any public officer in a legal performance of his duty in the 1999 case of State versus Dawson the court of appeals of New Mexico determined that this statute quote requires a person to furnish identifying information immediately upon request or if the person has reasonable concern about the validity of the request so soon thereafter as Not to cause any substantial inconvenience or expense to the police even so the court of appeals clarified in the 2021 case of State versus Aguilar that the concealing identity statute only applies when an officer has Reasonable Suspicion to detain the individual whose identity is requested because quote absent evidence establishing Reasonable Suspicion the seizure of a defendant for questioning is unlawful under the Fourth Amendment and the state cannot prove that the officer was acting in the so-called Le legal performance of his duty unless the officer has Reasonable Suspicion to detain the suspect and question him about his identity concealing one's identity is not a crime and the individual is free to walk away now in this situation the Albuquerque officers will likely argue that they had suspicion to detain Mr mcmanis based on his physical resistance to their efforts to trespass him from the target however as we discussed earlier in this episode there are serious questions about the legality of his removal from the store and Mr mcmanis would certainly have a solid argument that the officers did not have Reasonable Suspicion to detain him given the potentially unlawful nature of their conduct up to this point don't resist anymore stop just walk man no just walk no I didn't do nothing I was just about to pay my money in the the in the automated system I putting my money I didn't do nothing told you what's going on stop I didn't know I'm done with you stop explain separate your feet told you who we were I I had security guard tell me there were police well then sorry those security guards told you that but they we are actual Law Enforcement Officers what's your name tell me your name you going to separate tell me anything man not going to get a lawyer oh that sucks to suck man no no I I have the right to remain silent no when it comes to your name no no that's you do but that's why now you're going to jail for concealing identity so Matthew here's what you're under arrest okay concealing identity and resisting invad constructing officers okay don't catch a felony charge by hitting me or anything step in make it easy all I was doing was paying for my things yeah you had to cut off one of my fanny packs you know you saw how hard it is to get my money out and I was trying to get my money out and I got it all out and then then you came and I tell you were security guards after the arrest Mr mcmanis was taken to the hospital to be assessed for unidentified medical complaints he was released and issued a criminal summons for charges of concealing identity and resisting evading or obstructing an officer court records show that the charges against Mr mcmanis were dismissed on October 19th 2022 after he was found not to be competent to stand trial on February 3rd 2023 the Albuquerque Police Department fired off officer schemes based on his actions against Mr mcmanis as the department concluded that there was no reason to arrest him as well as his role in the shooting death of 27-year-old kesan Thomas a little more than a week after the encounter featured in this episode during which the APD found that officer skines violated department policies notably officer Flores was also involved in Mr Thomas' death and in May of 2023 both officers were named in a wrongful death lawsuit former officer Skin's Attorney John deato has stated that he's appealing his termination from the APD in support of the appeal Mr damato claimed that Mr mcmanus' arrest was the result of a misunderstanding between the officers and a Target loss prevention associate that led the officers to believe that the store wanted Mr mcmanis removed as of the date of writing this episode no updates on the status of this appeal have been publicly released on July 13th 2023 New Mexico attorney general rul Torres announced that his office had filed criminal charges against officer SCH stemming from his now quoting unlawful arrest of Mr mcmanis former officer skin was charged with false imprisonment and battery for his conduct against Mr mcmanis and perjury and making a false report for allegedly making a false statement under oath related to the arrest and making a false report to other law enforcement staff in a press release regarding the charges attorney general Torres stated that quote rather than acting as a professional public servant and a guardian of vulnerable members of this community Mr SK engaged an abusive and unlawful behavior that undermined Public Safety and violated his oath as a peace officer in the state of New Mexico attorney general Torres also argued that Mr mcmanis quote clearly hadn't committed a crime and that now quoting again in the absence of criminal activity there was simply no justification for the officer to engage with him in the way that he did and to escalate the situation in the way that he did the New Mexico attorney general does not intend to pursue charges against officers flues and rigan as officer skem was the one in control of the situation former officer skem has pleaded not guilty to all four counts and as of the date of writing this episode the charges against him are still pending overall the Albuquerque police officers get an F for physically removing a man with disabilities from a store for taking quote unquote too long to complete a transaction failing to exercise common sense and discretion by pursuing criminal charges against a man with clear mental limitations and demonstrating an appalling lack of empathy throughout the encounter instead of simply offering to assist Mr mcmanis or allowing him to take the time he needed to complete the transaction the Albuquerque officers chose to forcibly remove him and arrest him without showing any concern or consideration for his disability and repeatedly blamed him for his confusion about the situation I applaud the Albuquerque Police Department for removing officer schemes and the New Mexico attorney general for pursuing criminal charges against him although I do question the lack of action against officers Flores and rigan even if the officers had probable cause to arrest Mr Manis given his evident disability and the fact that he was clearly not a danger to anyone choosing to arrest him for his actions against the officers demonstrated incredibly poor discretion and an overly inflated sense of ego that has no place in modern policing as for Mr mcmanis I cannot rightfully assign a grade to an individual with disabilities who was treated so abhor by police officers who should have helped and protected him the fact that Mr mcmanis was found to be incompetent to stand trial speaks to the severity of his disability and I know this situation must have been terrifying and immensely confusing for him even still I commend Mr mcmanis for attempting to assert his rights and protesting the officer's horrifying actions in a peaceful Manner and reaffirm that he in no way deserve to be treated like a criminal for simply trying to purchase a bike individuals with disabilities have unique perspectives and many remarkable qualities to offer society and this encounter serves as a sad reminder of the ways they can be misunderstood vilified and excluded from participating in everyday activities I hope that Mr mcmanis has been able to heal from the trauma he suffered during this experience and that he was able to purchase a bike from a more accommodating retailer let us know if there is an interaction or legal topic that you would like us to discuss in the comments below thank you for watching and don't forget to check out my second channel for even more police interaction [Music] content