A federal judge in Albuquerque has declined to issue a preliminary injunction that would halt the removal of Gilberto Guzman’s mural in downtown Santa Fe, saying the artist’s petition failed to meet the criteria for such a measure.
Guzman’s federal lawsuit seeking permanent protection for the mural and ownership interests under the Visual Rights Act is still pending, according to court records. But U.S. District Judge Kea W. Riggs’ ruling means the mural’s future is tenuous while the lawsuit works its way through the legal system.
The Halpin Building, on which the 40-year-old mural is painted, is scheduled to be renovated and turned into the Vladem Contemporary, a satellite branch of the New Mexico Museum of Art that will feature modern art. The decision to remove the mural as part of changes to the building has been a source of controversy, with opponents charging it’s another example of gentrification in Santa Fe.
Department of Cultural Affairs officials have said the mural will be “retired as part of the renovation” and the department plans to “acknowledge the mural and its history with a display” inside the museum.
Guzman filed a lawsuit in March, asking the court to issue a temporary injunction — which would become permanent if his lawsuit were successful — to prevent the Department of Cultural Affairs and the city of Santa Fe from taking any action to “remove, alter, deface, modify, mutilate, or destroy” the mural without his permission while his lawsuit is pending.
But Riggs wrote in an April 16 order she couldn’t issue a preliminary injunction, in part because Guzman failed to present evidence he would be irreparably harmed by the destruction of the mural.
The judge’s order also says Guzman failed to convince the court he had a likelihood of prevailing on Visual Rights Act arguments in his case, noting the law didn’t become effective until 1991, more than a decade after the mural’s creation in 1980.
“The only evidence in the record reflects that the mural has reached the end of its natural life,” Riggs wrote.
“[Guzman] does not submit anything in the record to suggest that the mural has not reached the end of its natural life,” Riggs wrote. “Rather [he] argues that the condition of the mural is [the state’s] fault because it did not allow him to renovate or repair the mural. Therefore, the Court is not inclined to find irreparable harm if the mural as it is now is altered or destroyed because [Guzman] would like to alter it anyway.”
The judge also wrote she was unable to issue a preliminary injunction halting construction on the Halpin Building because Guzman filed the lawsuit after construction began and does not appear able to pay a bond of $390,000 to $780,000 that would be needed to compensate the state for any delays if he didn’t win the case.
“He stated he obtained counsel through community donations and any additional funds for bond would need to be raised through community efforts,” the judge wrote. “He asks that the Court waive the security requirement because he lacks money and his need for the preliminary injunction is great. Because [Guzman] has not given any indication he can pay a bond of $780,000, the Court could not enter a preliminary injunction in his favor even if one was appropriate.”
Guzman’s attorney could not be reached for comment Thursday.
Without an injunction preventing it from doing so, the Department of Cultural Affairs — which begun construction on the building in February — could demolish the mural at any time.
Spokesman Daniel Zillman wrote in an email the department agrees with the court the mural has reached the end of its natural life.
“Although renovation of the east wall of the Halpin building was delayed by consideration of the injunction, significant progress was made throughout the rest of the building,” Zillman wrote.
“Renovation of the wall on which the mural is painted will entail the removal of window insets and covering the wall with construction netting in order to protect workers,” he added. “Eventually, loose stucco will be removed and the wall will be lathed and re-stuccoed with multiple coats, effectively covering over the mural.”
Zillman did not specify when the mural would be covered.
Guzman’s lawsuit initially included the city of Santa Fe, but court records show the city — which has no jurisdiction over the Halpin Building — was dismissed as a party Thursday.