Woman was jailed, sentenced on invalid state libel law

An El Paso woman has just begun a year of probation ordered by Magistrate Court here on a charge filed nine years ago by a Ruidoso police officer who resented a formal complaint she filed against him for rudeness.

But the law on which the officer based his retaliatory charge, New Mexico’s criminal libel statute, is unconstitutional and invalid, according to legal experts including the 12th Judicial District Attorney.

“I think she was victimized by the application of a statute that our courts have long ago said was unconstitutional,” said DA David Ceballes. “I don’t think these charges should ever have been brought. A person has a right to make a complaint about a police officer.”

Edna Bibb thought so too. But she spent several nights in the Lincoln County Detention center when the warrant was served on her during another traffic stop in Tularosa in 2010, three years after the original criminal complaint against her was filed on March 1, 2007.

Bibb says she also spent at least $3,000 on legal fees to file a 12th Judicial District court appeal from her Magistrate Court conviction. Then she was arrested a second time on a warrant served during yet another traffic stop in Carlsbad after failing to appear for her appeal hearing because she never received notice from the court or her attorney.

That was unfortunate for Bibb. In a very similar case involving a complaint against a police officer in the 11th Judicial District, the judge ruled in April 2006 that the criminal libel statute is unconstitutional and dismissed the charge.

It’s likely that Bibb would have gotten the same result if she had showed up for her own appeal years later. But after her default, Judge Karen Parsons sent the case back to Magistrate Court here to re-impose the original sentence, which was a year of supervised probation.

Judge Katie Lund took up the case last week. She said she wasn’t aware of the libel statute and thought it was strange that someone could be charged with a crime for filing a complaint about a police officer’s conduct. But she said she had no discretion to do anything but follow the district court’s instructions, although she did switch the probation to unsupervised.

“She lives in Texas, and she had no other criminal history,” Lund said. “She was frustrated in general with the whole situation.”

Bibb’s troubles began late the night of Feb. 24, 2007, when she encountered Ruidoso police officer Joel Martin, who is no longer with the Ruidoso Police Department.

Bibb says she had just arrived in Ruidoso where she once owned a vacation home. A female friend was with her, and each of them had children in the car.

According to Bibb’s account, she pulled off U.S. Highway 70 into the strip mall parking lot near Walgreens to wait for two other carloads of friends who were traveling not far behind her. She stepped from her car to watch for the friends, took a sip from a bottle of Gatorade and poured the rest on the ground.

She says that’s when Martin rolled up.

“He was really rude,” Bibb said in a telephone interview. “He demanded to know what I was doing. He asked me if I was urinating. It was me, my girlfriend and several little kids. The youngest one was maybe three or four. He was being very nasty, very rude. He asked me if I’d been drinking. He was belligerent.”

“The next day I was still upset,” she said. “I went to the Police Department and I filed a complaint based on the treatment I received from this particular person. I said what he said to me, how he made me feel.”

Martin’s criminal complaint tells a different story. He referred to the encounter as a traffic stop and said he cited Bibb for driving without a valid driver’s license. He insisted his “eyewitness video” recording of the incident would prove that his conduct had been “nothing short of professional.”

“In the complaint the defendant made untrue malicious allegations about my conduct and mental state,” Martin’s complaint said. “In the complaint it is obvious that the intentions of the defendant were to cause punitive action to be taken against me, to defame my character and reputation and affect my career and standing within the department.”

Martin’s allegations might have been enough more than half a century ago to support a state criminal libel charge. But the U.S. Supreme Court in a case known as Times v. Sullivan declared in 1964 that public figures and officials must meet a much higher standard in proving a libel claim, even one based on statements about them that are false.

“Federal case law makes clear that for the state to take any action on statements about public figures they have to prove that the speaker acted with actual malice,” said Greg Williams, a media attorney and board president of the New Mexican Forum for Open Government.

“Actual malice,” he explained, doesn’t mean ill will or bad intentions. It’s a legal term meaning that the person making the false statement either knew it was false or made the statement with “reckless disregard” as to whether it was true or not.

The Supreme Court considered false attacks on the reputation of public figures on matters of public concern an acceptable risk of preserving citizen free speech in a democracy.

As a practical matter, proving that a libel defendant’s state of mind qualified as “actual malice” is nearly always extremely difficult or impossible, and public servants criticized falsely for something they did in the performance of their duties seldom attempt it.

In 1992, the New Mexico Court of Appeals held in a case called State v. Powell that the state criminal libel statute was unconstitutional when applied to a public statement involving a matter of public concern. The 11th Judicial District case, New Mexico v. Mata, is the only other Williams knew of in which a New Mexico court has addressed the state law.

“We’ve had that statute for a long time,” he said, “but I’ve never heard of anyone being prosecuted except these couple of decisions.”

Ceballes too found Bibb’s case highly unusual and said he would be taking a close look at how it was handled.

“Police have a duty to carry out public business,” the DA said. “The public can complain if they think the officer has done something wrong.”