When Tabitha Clay heard former Deputy Jeremy Barnes over the police scanner calling an ambulance for a 15-year-old special needs student he just tased at Española Valley High School, she was immediately alarmed.

At the time, in early May 2019, Tabitha was a reporter for the Rio Grande Sun, covering Rio Arriba Sheriff’s Office (RASO) activities and the courts. Tabitha wasted no time calling Sheriff Lujan, who she had a close professional relationship with, to inform him of the incident and tell him that she would need the reports. The sheriff agreed to grant her access, as was protocol at the time.

In late May, after she obtained lapel footage of the incident, she published her story. At first, nothing unusual happened. But after the incident made national news a couple of days later, sparking public outrage, everything started to change.

“The next day the sheriff said, ‘Look what you caused,’ Tabitha said. “And I told him, ‘I didn’t do this.’ I didn’t hire that deputy and I didn’t put him in the school.’”

But Sheriff Lujan didn’t see it that way. He quickly directed his office to stop providing Tabitha with records, including dispatch reports, and to stop speaking with her.

On July 1, when Tabitha arrived at the scene of a fatal accident in Rio Arriba County to report on the incident, Barnes, the deputy who Tabitha reported on, yelled at her to stay outside the perimeter, threatened to arrest her, and called out for someone to get him some handcuffs. Fearing she would be arrested, Tabitha left.

On another occasion, in September, Tabitha returned to her apartment in Santa Fe County after a long day to find two Rio Arriba Sheriff’s vehicles, one with former deputy Barnes, parked out front. The deputies were clearly out of their jurisdiction and drove off after Tabitha arrived.

“I pulled up and I knew immediately that one of them was the same one who tased the kid, and who had threatened to arrest me two months before,” Tabitha said. “It was scary. It was really scary.”

“It became increasingly clear that the sheriff and deputies were actively trying to silence me...I began to live in fear that they might actually harm me if I didn’t stop reporting on the department."

Two days later, after Tabitha published a story concerning the Rio Arriba County Sheriff’s failure to do in-service training since 2011, deputies refused to allow her to enter the Rio Arriba County Court with equipment she regularly used as a member of the press. RASO deputies only let Tabitha enter with her camera after the bailiff for the court came down and spoke with them, explaining that, as a member of the press, she was permitted to bring her equipment into the courtroom. Deputies still refused to allow her to bring in her phone or her laptop.

“It became increasingly clear that the sheriff and deputies were actively trying to silence me,” said Tabitha. “Their harassment didn’t just prevent me from doing my job. I began to live in fear that they might actually harm me if I didn’t stop reporting on the department.”

A free press is critical to democracy

Members of the press help keep government agencies and actors accountable to the people by serving as watchdogs and calling out abuse. The ACLU has vigorously defended freedom of the press for 100 years because we know that a healthy democracy depends on an informed citizenry.

Though the First Amendment guarantees a free and open press, maintaining it requires constant vigilant protection from local and federal government agencies, which work to keep many of their activities secret from the public.

In recent years, members of the press have faced increased threats and assault. During his presidency, Trump consistently demeaned the press, calling them “the enemy of the American people,” “human scum,” and “the fake news media.” He also worked to undermine their credibility and deligimatize them at every turn. These attacks, coming from the highest office of government, created a hostile environment for journalists to work in. So hostile, in fact, that in 2019, Reporters Without Borders dropped the U.S. to No. 48 out of 180 on its annual World Press Freedom Index. The three-notch downgrade took the United States from a “satisfactory” place to work freely to a “problematic” one for journalists.

"If reporters are afraid they are going to be retaliated against for doing their jobs, that poses a threat to everyone in the community."

In the summer of 2020, when protestors took the the streets to exercise their First Amendment rights in the aftermath of  George Floyd’s murder, Trump not only encouraged a violent response, he also mocked and endangered reporters covering the demonstrations. After an MSNBC reporter was shot with rubber bullets he referred to the attack as “a beautiful sight.” He also sent federal law enforcement to places like Portland, where they secretly surveilled and assaulted journalists covering the ongoing anti-racism protests. The ACLU of Oregon sued on behalf of multiple members of the media who were ​​attacked with flash grenades, rubber bullets, and tear gas while covering the protests.

The ACLU of Minnesota filed a class-action lawsuit on behalf of journalists who were targeted and attacked by Minneapolis and Minnesota police while covering protests the same summer. The lawsuit’s lead plaintiff, Jared Goyette, a journalist reporting on the demonstrations, was shot in the face with a rubber bullet.

In recent years, The Department of Homeland Security targeted journalists reporting on conditions at the U.S.-Mexico border on multiple separate occasions. Agents subjected reporters to secondary screenings, compelled them to disclose information about their sources, and searched their photos and notes. A secret government database leaked to the public in March 2019 revealed that the five journalists were specifically targeted as part of a concerted government effort to surveil people working at the southern border. In response, the ACLU national office, ACLU of San Diego and Imperial Counties, and the New York Civil Liberties Union sued.

ACLU lawsuit

When Tabitha approached the ACLU of New Mexico for help in the fall of 2019, Legal Director Leon Howard was immediately concerned and interested in her case.

“Now more than ever, our country needs journalists who are brave enough to expose the truth and to cover stories that the American people deserve to know about,” said Howard. “If reporters are afraid they are going to be retaliated against for doing their jobs, that poses a threat to everyone in the community. Residents depend on a free press to find out about government abuse and to call for transparency and accountability.”

Tabitha’s work is an example of the importance of journalism in holding public officials accountable. Her reporting on former deputy Barnes ultimately led to his terminiation with RASO and led the Attorney General’s Office to investigate and charge him with child abuse and battery.

“Now more than ever, our country needs journalists who are brave enough to expose the truth and to cover stories that the American people deserve to know about."

She’s now also fighting for the public’s right to information through her lawsuit with the ACLU of New Mexico.  After looking into the harassment and retaliation Tabitha faced, the ACLU began to build a case, filing a Torts claim in October 2019. Then, in  May 2021, the ACLU of New Mexico and Rothstein Donatelli LLP filed a lawsuit in the First Judicial District Court against RASO, the Board of County Commissioners, Sheriff James D. Lujan, and former Deputy Jeremy Barnes, for retaliation and violation of Tabitha’s First Amendment rights.

Tabitha has since moved to Colorado to care for her grandmother, but she is undeterred. She’s still committed to reporting on stories that expose abuse of power and hopeful that her lawsuit with the ACLU will bring change to the community she once lived in.

“I would really like to see this lawsuit send a very strong message to police that you can’t just go after people that are telling the truth. That’s wrong,” Tabitha said.“The First Amendment is the first for a reason. It matters. And you don’t just get to trample all over it and go home at the end of the day.”

We first heard rumblings that a sinister and discriminatory resolution banning trans youth from playing sports would be considered by the Alamogordo Public School Board during the Spring. In response to a growing wave of anti-trans legislation across the country, the school board had planned to take up the resolution, which was written by a lawmaker who failed to pass a similar law during this past legislative session. Initial press critical of the resolution seemed to stall progress on it, but in June the Alamogordo Public School Board put the resolution on their calendar for consideration.

We know all too well that discriminatory policies like this only harm trans kids and their families by creating an environment that is hostile to their very existence. So, we sprang into action. Ahead of their next meeting, The ACLU of New Mexico sent a demand letter to the school board advising that the proposed policy would violate both state and federal law.

"We know all too well that discriminatory policies like this only harm trans kids and their families by creating an environment that is hostile to their very existence."

The United States Supreme Court held in 2020, in R.G. & G.R. Harris Funeral Homes, Inc., v. Equal Employment Opportunity Commission that discriminating against someone on the basis of their gender identity runs afoul of the provisions of Title VII of the Civil Rights Act. The federal government, as of March 2021, determined the reasoning of this opinion logically applies to other provisions of the Civil Rights Act, like Title IX, which applies to schools. Similarly, the New Mexico Human Rights Act (NMHRA) explicitly states that gender identity and sex are protected from discrimination in matters of employment, housing, credit, union membership, and at public accommodations, such as extracurricular activities.

“Trans children already face extreme hardships that stem from coordinated attacks on their very existence and the continued discrimination they face at almost every turn.” said Ellie Rushforth, ACLU of New Mexico attorney. “Instead of attacking trans children’s existence, the Board should have been focused on creating a safe, welcoming, and affirming environment for all of its students.”

Barred from running

The real-world consequences of anti-trans policies are all too real for local Albuquerque resident, Jill Eaton Potts, and her family. Jill has four kids, two sons and two daughters.

At the age of three, Jill’s youngest child, Millie, let her Mom know that she was really a girl. Jill wasn’t phased or upset. She raised her children to feel free to play with whatever they wanted to play with and to wear whatever they wanted to wear.

“The older three siblings kind of gravitated to more stereotypical gender roles,” said Potts. “Our youngest didn’t and we were okay with that.”

By the time Millie reached the age of six, she was still insistent on her gender identity. Jill took action, allowing Millie to live her life authentically. On their first trip out as a family with Millie as her true self, she twirled happily through Target as her family shopped for new clothes.

(Photo: Jill Eaton Potts)

“I took a little video of her twirling through Target and I sent it to my ex-husband saying, ‘I’m pretty sure we have a little girl on our hands,’” Potts said. “I asked him, ‘are you going to be okay’? And he replied, ‘absolutely.’”

When Millie turned seven, a neighborhood Facebook page posted about a track club seeking new runners. Jill asked Millie if she wanted to join the club that her older siblings had also participated in and Millie said “yes.” Jill called the organizer to explain the situation.

“She’s seven but she is transgender,” Jill said. “So the birth certificate is going to show male, but she needs to be with the girls team.”

The organizer promised that she would talk to the head coach and that the coach would call Jill. That call never came. What did come was a surprise.

"If you are going to stick a needle in my kid’s arm, you are going to stick a needle in every kid’s arm."

The organizer finally got back to Jill with conditions for Millie to participate in the running club. She told Jill that she would have to prove that Millie had been living and identifying as a girl for three years and that Millie was going to have to undergo testosterone blood checks every six weeks at Jill’s expense.

Jill was taken aback at the requirements. “I said, ‘Excuse me, her testosterone levels at seven are going to be the same as every kid on that team. Boy, girl it doesn’t matter. If you are going to stick a needle in my kid’s arm, you are going to stick a needle in every kid’s arm.’ She didn’t really like that.”

"These kids are not going away. It's more safe for them to be who they are."

Jill felt terrible and had to tell Millie that the track club wasn’t going to work out and that they would have to look for something else. So far, they haven’t found another sports club that would allow Millie to run.

“These kids are not going away,” Potts said. “It’s more safe for them to be who they are. I bet you they may have had some trans kids on the team who have already changed their birth certificate and they would have never known.”

Gender policing is discriminatory and  harmful

Though anti-trans lawmakers continually cite concerns about competitiveness as the reasoning behind bills that ban trans kids from playing sports, modern science does not support their arguments. These bills are not really about sports or about protecting female athletes, just like anti-trans restroom bills were never about restrooms. These bills are aimed at erasing and excluding trans people from participation in all aspects of public life.

Not only are attempts to ban trans women from sports discriminatory and harmful for trans athletes -- they also pose harm to cisgender athletes, particularly cisgender women.

The National Collegiate Athletic Association (NCAA) and the International Olympic Committee (IOC), which regulate hundreds of events every year to ensure competition fairness and equity, recognize that transgender athletes on horomone therapy have no competitive advantage or other athletes, and allow trans athletes to participate in competitions.

Not only are attempts to ban trans women from sports discriminatory and harmful for trans athletes -- they also pose harm to cisgender athletes, particularly cisgender women. Take Caster Semenya, for example.  In 2019, Semenya, a cisgender Olympic track champion from South African, was ordered by the Court of Arbitration for Sports to take drugs to suppress her natural testosterone levels to compete in certain races because her testosterone levels were considered too high. There is currently no such test or standard for cis-men in sports.

Harmful attacks mount across the country

Attacks against transgender people with the intent of shutting trans people out of public life are not new, but the pace of attacks has accelerated. This year, there have been more anti-trans bills filed and passed than in the last 10 years combined. These statewide efforts have been supported through a coordinated campaign led by anti-LGBTQ groups that have long worked to attack our communities.

New Mexico’s neighbors have been especially aggressive in pursuing bills prohibiting transgender girls from playing school sports. Texas, Oklahoma, Arizona, Colorado and Utah all filed bills this year aimed at preventing trans kids from playing sports. Transgender activists and allies have managed to defeat each bill, but the fight is not over. After failing to push these bills over the finish line this past year, transphobic lawmakers in each state could take up the issue once again next year.

Attacks against transgender people with the intent of shutting trans people out of public life are not new, but the pace of attacks has accelerated.

In the 2020 New Mexico legislative session, lawmakers filed two bills intended to discriminate against transgender people. One bill attempted to ban trans girls from school sports and another bill aimed to make it legal to use religion as an excuse to discriminate against LGBTQ+ people in healthcare. Together with allied organizations like Equality New Mexico and the Transgender Resource Center of New Mexico, we defeated both bills. Nevertheless, they underscored the importance of staying vigilant and ready to defeat transphobic laws here at home.

We cannot rest

After receiving our demand letter, the Alamogordo Public School Board quickly pulled the resolution seeking to ban trans girls from sports from their calendar. While they offered no comments as to why the resolution was pulled, it was a sigh of relief for trans people across the state.

"When civic leaders and elected representatives are debating about your inclusion, in some cases about the validity of your very existence, that really erodes your confidence and self-worth."

“I think we have clear indications about what this type of legislation does to the mental health, stability and sense of belonging of trans and non-binary young people,” said Adrien Lawyer, Co-Founder and Executive Director of the Transgender Resource Center of New Mexico (TGRCNM). “When civic leaders and elected representatives are debating about your inclusion, in some cases about the validity of your very existence, that really erodes your confidence and self-worth. It’s not even about sports inclusion, per-se, although we also have great data on the benefits of sports participation for youth who are interested. It’s really more about core acceptance and inclusion in the communities we live in.”

Legal and legislative action are important arenas for protecting trans rights. But it will also take public education and committed allyship to root out the harmful myths underlying anti-trans policies.

We’ll keep fighting to ensure that families like Jill Eaton Potts’ don’t have to worry about signing their kids up for a running club.

“Education is power, power is education. So whatever we can do to help educate people, and make it graceful and kind and not get mad at people who don’t understand trans issues,” said Potts, “My dream is that Millie can be whoever she wants to be, just like any parent of any kid. There’s a lot of families that are like mine, and families who are going through this, there’s so much support. You’re not alone.”

The privately-run ICE detention center in Torrance County failed its government inspection earlier this year, with a newly released report finding severe understaffing, unsanitary food and visitation rules that were inaccessible to people with no money, among other complaints.

Photo Right: A screenshot of surveillance video taken shortly before men detained at the Torrance County were pepper-sprayed for engaging in a peaceful hunger strike protesting conditions at the facility. Surveillance and lapel video was obtained by NMILC and ACLU from CoreCivic via an IRPA request.

The failed inspection is the latest in a series of troubling news for the Torrance County Detention Center, which earlier this year reported a massive COVID-19 outbreak among detainees and staff, as well as reports of guards using harsh chemical agents in response to a peaceful hunger strike protesting conditions at the facility. 

The Torrance detention center in Estancia, southeast of Albuquerque, detains male migrants for ICE and the U.S. Marshals Service, as well as men and women for Torrance County. It is managed by CoreCivic, a private for-profit prison corporation based in Nashville, Tenn. The inspection was conducted from July 27 through 29 by The Nakamoto Group, a private contractor that inspects ICE detention facilities. ICE has 60 days from the completion to post the results online.

Allegra Love, an attorney with the El Paso Immigration Collaborative who has worked with detained migrants at Torrance and other ICE facilities, said The Nakamoto Group inspections are notoriously friendly to the facilities and failures are rare. 

“I’m surprised that they failed the inspection because I’ve worked in detention centers for the last seven years and they’re all really terrible,” Love said. “You’re never at one that is good or that treats their detainees well, but they all pass their inspections.”

ICE and CoreCivic did not respond to requests for comments about the inspection, which found the facility “does not meet standards.”

During their July review of Torrance, The Nakamoto Group inspectors found 22 deficiencies in how ICE detainees were held, including four categorized as deficiencies in priority components.

"This is not a greenhouse or coffee shop. They're in charge of people's well-being and safety."

Among the most concerning for Love is severe understaffing. Although not a specific deficiency, inspectors noted that “the current staffing level is at fifty percent of the authorized correction/security positions. Staff is currently working mandatory overtime shifts.”

Love said she’s had trouble connecting with a client at the facility, with a staff member saying it would take two weeks just to schedule a legal call. Lack of staff, she said, is a security concern.

“This is not a greenhouse or coffee shop,” she said. “They’re in charge of people’s well-being and safety.”

Twelve of the complaints cited by investigators focused on food preparation, including safety and sanitation concerns with how food was prepared and presented. Food service should be “under the direct supervision of an experienced food service administrator,” the report said. Inspectors also found the facility’s dishwasher wasn’t hot enough to actually sanitize dishes.

That didn’t surprise ​​Ernesto Rodrigo Callado, who was detained for 10 months at Torrance and even worked in the kitchen for a time. The food, he said, was often flavorless and undercooked and was a constant source of complaints.

“The beans were hard, you could throw them at the wall three times and if you kept going you’d break the wall,” Callado said. “They made rice that tasted like going to the yard and eating dirt.”

He said except for a few dishes he tried to prepare his own meals and buy food from the commissary instead.

Alvaro, who asked that his real name not be used for fear of retaliation from immigration authorities, said he also worked in the Torrance kitchen and noticed food that smelled bad. People often had stomach aches that he attributed to the food.

“Just because we’re immigrants doesn’t mean we have to eat like dogs,” he said.

Inspectors also found deficiencies in visitation access. During the COVID-19 pandemic, the facility replaced general in-person visits with paid video calls through tablets, making them inaccessible for detainees without money.

Callado said the tablets were often slow to load and even just waiting for a photo his family had sent him to load could quickly become unaffordable. 

The report also noted grievance paperwork and medical grievances were not being maintained properly in detainees’ files and directed the facility to ensure grievances are filed as required. ICE received 43 grievances from detainees at Torrance in the year leading up to the late July inspection, two-thirds of which have been substantiated. 

The two other ICE detention facilities in New Mexico, in Otero and Cibola counties, passed their inspections from The Nakomoto Group in January and May respectively.

The ACLU previously called for the closure of the Otero County Processing Center for its long history of inhumane treatment, including denial of access to medical care, retaliatory use of solitary confinement and more. And last year Reuters uncovered numerous unanswered calls for medical attention, inadequate mental health treatment and quarantining procedures and more at Cibola County Correctional Center’s now-closed transgender detainee unit.

Earlier this year, the ACLU of New Mexico filed a lawsuit alongside the New Mexico Immigrant Law Center on behalf of nine former Torrance detainees and the Santa Fe Dreamers Project against CoreCivic and Torrance County. The lawsuit alleged CoreCivic sprayed the men with chemical agents in response to a peaceful hunger strike. The men were protesting inadequate precautions against COVID-19, poor living conditions, and the withholding of status updates on their immigration cases.

Zoila Alvarez Hernández, an immigrant rights attorney at the ACLU of New Mexico, said The Nakamoto Group was correct to fail Torrance after all of the issues at the facility.

“I’m pleasantly surprised that a third-party vendor that (ICE) contracted actually did their job and reported it,” she said. “However, I am not optimistic that CoreCivic and Torrance County will take corrective action to address the deficiencies that were pointed out in the inspection.”

"Why are they still there if we can't meet their very, very, very basic needs?"

In late May, the Santa Fe New Mexican reported a COVID-19 outbreak at the facility, which by then had infected 110 detainees and 16 staff members. There have been 370 COVID cases among people detained by ICE at Torrance, according to the federal agency.

By late May, during the COVID-19 outbreak, Torrance had an average daily population of 29 people in immigration custody, according to data from the nonprofit Transactional Records Access Clearinghouse. By late August, the average daily population was up to 126.

For Love, that raises the question of why detainees were sent to Torrance if it wasn’t adequately staffed, among the other deficiencies noted in the inspection.

“Why are they still there,” she said, "if we can’t meet their very, very, very basic needs?”