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NMLR Current Issue

Winter Vol. 48, No. 1

Front Matter

What the Police Don’t Know May Hurt Us: An Argument for Enhanced Legal Training of Police Officers
Yuri R. Linetsky

Using original empirical research, this Article identifies deficient legal training in police academies as a latent cause of improper arrests or detentions. This often results in unnecessary conflict between police officers and citizens, leading to endemic distrust of officers in the communities they serve. With enhanced legal training, police officers can avoid these negative interactions. Although police officers need not be lawyers, they must have more than a cursory understanding of the law. Their primary responsibility is to enforce state and local laws, which often requires officers to interpret statutory language in light of constitutional limitations. Current police academy curricula leave police officers ill-equipped for this task.

Through a multistate survey, this Article reveals that police officers receive little legal training. The number of hours devoted to legal topics in state police academies is roughly 12% of total academy hours. While academies allocate many of those hours to the state’s statutory and traffic laws, they devote little time to legal theory, application, and limitations of the law—which are critical to officers as they confront unanticipated situations. As this Article discusses, citizens and the courts have (or should have) higher expectations for police officers. To this end, this Article suggests changes to police academy legal training that will improve community trust by enabling police officers to make better, smarter decisions when interacting with citizens.

To Shield and Protect: The Competence to Stand Trial Doctrine in New Mexico
Lea A. Zukowski

Although the competency requirement is rooted in notions of fairness and due process, a defendant who raises competency in New Mexico often faces a cruel irony: an extended deprivation of liberty without the benefit of trial. The current procedure for determining competency is confusing and complex, which contributes to delays in making competency determinations and ultimately to delays in resolving criminal matters. The Ad Hoc Committee on Rules for Mental Health Proceedings is working on revisions to the rules for competency. Proposed revisions were published in 2016. This article traces the development of the competency doctrine, analyzes the current procedure, and provides a critique of the proposed rules that focuses on simplifying the initial process to reduce extended pretrial incarceration when competency is raised. Another version of proposed revisions will be published in March of either 2018 or 2019, and the author encourages those with knowledge and interest to read and provide feedback about the revisions. Although it is unlikely that any rule can fully accommodate all of the competing interests that are implicated when competency is raised, public comment is essential so that the rule can be adjusted to best protect defendants’ rights and meet the goals of the criminal justice system.

What’s FAIR for Conscientious Objectors Subject to Public Accommodations Laws
Mark A. Strasser 

Those celebrating a same-sex union may wish to engage the services of a baker, a photographer, or a florist. Some vendors have refused to provide wedding services for such couples, claiming a First Amendment right not to endorse marriage equality. While the right not to speak has been recognized, it is much less robust than is commonly thought and, as currently understood, would clearly not apply to the vendors in these kinds of cases. This article discusses the jurisprudence, demonstrating why these kinds of cases are not covered by the right and explaining why the recognition of such a right would neither be warranted by the law nor good public policy. The recognition of a robust right to refuse to engage with other community members so as to avoid a possible imputation of endorsement could further balkanize an increasingly fractured nation.

The Culturally Proficient Law Professor: Beginning the Journey
Anastasia M. Boles

Cultural proficiency is defined by Dr. Kikanza Nuri Robins and her colleagues as, “the policies and practices of an organization or the values and behaviors of an individual that enable that agency or person to interact effectively in a diverse environment.” Prior scholarship argued that the adoption of the cultural proficiency paradigm by legal educators could help catalyze a cultural shift in legal education from an environment that often marginalizes diverse law students to a more inclusive one. This Article and prior work argue that engaging in culturally proficient legal instruction offers three implications for legal education. First, the paradigm of cultural proficiency empowers legal educators with concrete tools to deconstruct a culture of marginalization and reconstruct a culture of inclusion. Second, adoption of culturally proficient legal instruction makes clear that all stakeholders in legal education must share the work of cultural inclusion that is often placed upon the shoulders of diverse law students, law faculty, and staff. Third, the paradigm creates an opportunity for legal educators to teach cultural proficiency across the curriculum.

There is much an individual law professor can do to leverage the paradigm of culturally proficient instruction. As such, this Article builds on prior work by examining threshold strategies individual law faculty members can implement to begin the journey of delivering culturally proficient instruction to law students and engaging in culturally proficient student interactions. This work examines three strategies for the individual law professor interested in culturally proficient legal instruction: (1) seek training on the paradigm of cultural proficiency, (2) mitigate unconscious behaviors such as implicit bias, racial anxiety, and stereotype threat, and (3) recognize and reduce microaggressions.

Student Notes & Comments

One Drunk Driver, Shame on You, Two Drunk Drivers, Shame on Who: Reconciling the Unlawful Acts Doctrine with Comparative Negligence
Alison K. Goodwin

Emerging From the Smoke: Does an Employer Have a Duty to Accommodate an Employee’s Medical Marijuana Use After Garcia v. Tractor Supply Company?
Lucía Moran

Entering a Building Without Going Inside: The Implications of State v. Holt for Breaking and Entering Cases in New Mexico
Keri Rezac Thiel