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New Mexico DA sues unauthorized militia group, then goes after Facebook for records to prove his case

USA TODAY logo USA TODAY 11/17/2021 Will Carless, USA TODAY
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A groundbreaking lawsuit in New Mexico could serve as a blueprint for how government officials deal with armed militia groups that deploy to public spaces and act like law enforcement officers despite having no authority to do so. 

The civil suit, filed by a district attorney in Albuquerque and the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center, seeks an injunction against members of the New Mexico Civil Guard, an armed group that sent its members to demonstrations last year under the pretense of providing security. The injunction would ban the group and its members from engaging in behavior the plaintiffs argue is dangerous and unlawful. 

Albuquerque police detain members of the New Mexico Civil Guard, an armed civilian group, following the shooting of a man during a protest over a statue of Spanish conquerer Juan de Oñate on Monday, June 15, 2020, in Albuquerque, New Mexico. © Adolphe Pierre-Louis/The Albuquerque Journal via AP Albuquerque police detain members of the New Mexico Civil Guard, an armed civilian group, following the shooting of a man during a protest over a statue of Spanish conquerer Juan de Oñate on Monday, June 15, 2020, in Albuquerque, New Mexico.

But the case has hit a snag: The plaintiffs argue that they need Meta, the company that runs Facebook, to provide key evidence linking members of the New Mexico Civil Guard to posts on the social media site. Meta has dragged its feet for 10 months, the plaintiffs say, and the company now says it can't provide the records because they were deleted when the militia members were banned from Facebook.

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The plaintiffs' attorneys don't believe that. They've asked Meta's chief technology officer to sign a declaration saying the records no longer exist, but the company has refused to do so.

Monday, the plaintiffs filed a petition against the company in California to force it to cough up the records or provide proof that they have been permanently deleted.

"If Facebook is going to allow itself to be used as a platform for recruiting and training and directing extremist, malicious activity, then at a minimum, they have a basic ethical and legal responsibility to maintain account information," said Raúl Torrez, the Bernalillo County district attorney who brought the lawsuit. 

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Rare action against an unauthorized militia group

In June 2020, a protest in Old Town Albuquerque over the proposed removal of a statue of Juan de Oñate, the Spanish conquistador and colonial governor of New Mexico, turned violent.

Dozens of protesters calling for the statue's demolition faced off against counterprotesters, including heavily armed men wearing military-style fatigues – members of the New Mexico Civil Guard.

This bronze statue of Juan de Oñate leading a group of Spanish settlers outside the Albuquerque Museum in New Mexico was at the center of a protest that turned violent in June 2020. © Susan Montoya Bryan, AP This bronze statue of Juan de Oñate leading a group of Spanish settlers outside the Albuquerque Museum in New Mexico was at the center of a protest that turned violent in June 2020.

One man was shot in the scuffle. Though militia members were not involved in the shooting, their presence as an unlicensed, unsanctioned, armed security force in a public space got Torrez's attention. 

"They're invading the province of traditional police authority, which is a highly regulated space that the state and the government must maintain a monopoly over," Torrez said. "The police have the authority to use deadly force under very limited circumstances, but we expect them to be highly trained."

Torrez began searching for a legal mechanism to prevent members of the group from intervening in protests or pretending to have authority they don't possess. He started working with Mary McCord, executive director of Georgetown Law's Institute for Constitutional Advocacy and Protection.

McCord and her team have been sounding the alarm on illegal armed militia groups for years. They have collated a wealth of information about laws across the country against such groups, and they've long questioned why prosecutors don't take an active role in enforcing laws against such groups.

New Mexico's Constitution forbids private military units from operating in the state. Statutes outlaw engaging in paramilitary activity like firearms training or, particularly relevant to the 2020 case, exercising the functions of a peace officer.

All 50 states have similar bans, ranging from prohibitions in state constitutions – some of which are somewhat vague – to criminal statutes outlawing paramilitary activity and training.

a group of people in uniform standing in front of a crowd: Gun rights advocates and members of unauthorized militia groups gather in Richmond, Virginia, on Jan. 20, 2020, to protest potential gun control bills. © Jack Gruber, USA TODAY Gun rights advocates and members of unauthorized militia groups gather in Richmond, Virginia, on Jan. 20, 2020, to protest potential gun control bills.

Prosecutors have been slow to use these laws, McCord said, even as armed groups have become a more visible and dangerous feature of the political landscape.

Armed protests hit a peak in 2020 and began rising again after a cooling-off period following the Jan. 6 riot at the U.S. Capitol, according to data from the Armed Conflict Location & Event Data Project. Protests where arms are present are six times more likely to turn violent as protests where no guns are present, the group concluded in a recent study.

"I really applaud Raúl's willingness to say: 'I do have this tool. I'm going to use this tool under my statutory authority,'" McCord said. "But too few – very few – have done anything similar."

Paul Kennedy, the Albuquerque attorney representing the New Mexico Civil Guard defendants, did not respond to a request for comment.

Case hits a snag 

The lawsuit against the New Mexico Civil Guard claims that Facebook posts by its members outline illegal activity and recruiting efforts. Facebook was a major organizing platform for the group, plaintiffs say. The plaintiffs say they have reams of evidence posted publicly on Facebook by accounts connected to the group.

There's just one problem: The company removed the accounts connected to the New Mexico Civil Guard in 2020 under its Dangerous Individuals and Organizations policy. Plaintiffs don't have the metadata that would definitively connect those posts to the defendants and show who the administrators of the militia-related pages were.

The plaintiffs first asked for these records in June 2020. In a court filing, they say they have been asking for them ever since.

Meta spokesman Andy Stone sent USA TODAY a statement saying the company always responds to requests from law enforcement to preserve account information.

The company "will provide it, in accordance with applicable law and our terms, when we receive valid legal process. When we preserve data we do so for a period of time, which can be extended at the request of law enforcement,” Stone said in the statement.

McCord said Meta is essentially hiding behind its processes to avoid giving up the records. 

Somewhere in the company's vast data banks these records must still exist, McCord said. And if they don't, the plaintiffs have offered Meta an alternative: to have the company's chief technology officer sign a sworn declaration that the deleted records can't be retrieved.

Meta has declined to do so.

Are the records gone?

In lieu of the declaration sought by the plaintiffs, Meta has offered to have an official custodian of records for the company make a sworn declaration that the records no longer exist.

McCord said that's insufficient. The records may not exist in their original form, and a custodian of records can state as much, but that doesn't mean Meta doesn't retain the data in some other form, she said. 

Federal law governing the retention of customer data by social media companies is so outdated that even the companies have called for it to be updated

William Null stands in the gallery of the Michigan Senate Chamber in the Capitol during a rally organized by Michigan United for Liberty to demand the reopening of businesses in April 2020. © Jeff Kowalsky, AFP via Getty Images William Null stands in the gallery of the Michigan Senate Chamber in the Capitol during a rally organized by Michigan United for Liberty to demand the reopening of businesses in April 2020.

McCord and Torrez said there's a problem with Meta's position in the case: If the company intends to ban people it labels "dangerous individuals," how can it learn from its past when it keeps no record of which people have been banned for violating its policies?

"This is a company that literally is built on monetizing every last, tiny, insignificant bit of everyone's personal information on their site," Torrez said. "Yet, when they find an organization or an individual that's too dangerous to be on the site, they delete it and put it in some form that can never be accessed again. 

"If that's true, that's troubling. And if it isn't true, that's also troubling."

This article originally appeared on USA TODAY: New Mexico DA sues unauthorized militia group, then goes after Facebook for records to prove his case

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