On April 10, 2014, the Civil Rights Division of the United States Department of Justice (DOJ) issued its report of an 18-month civil rights investigation of the Albuquerque Police Department (APD). The DOJ reviewed excessive use of force and deadly force cases and found APD had engaged in a “pattern and practice” of unconstitutional “use of force” and “deadly force” and found a “culture of aggression” within APD. The result was that on November 13, 2014 Albuquerque and APD entered into a federal court-approved settlement agreement mandating 276 reforms.
U.S. District Judge James Browning is the federal judge who is presiding over the reform efforts of the City and the Albuquerque Police Department (APD) under the Court Approved Settlement Agreement (CASA). Late last year the Albuquerque Police Officers’ Association (APOA) filed a motion challenging APD’s new “use of force” policy.
In January, APD implemented the new use-of-force policies. One sentence of the policy reads as follows:
“Supervisors and (Force Investigation Section) detectives shall consider the facts that a reasonable officer on scene would have known at the time the officer used force in evaluating whether the force was in compliance with department policy.”
In the motion APOA argued the sentence was vague and undefined and it is difficult to determine what facts “a reasonable officer” would have known at the time they decide to use force or deadly force . The union requested the court to replace the sentence with the following language:
“The determination of ‘objectively reasonable’ is based on the totality of the circumstances and the facts known to the officer at the time of the incident.”
COURT DENIES MOTION
On June 25, it was reported that Judge Browning denied the unions motion. In his written order denying the union’s motion, Judge Browning overruled the union’s objections. According to his order, Judge Browning said he can only amend the use-of-force policy if it violates the constitution, federal law or the court-approved settlement agreement between the city and the Department of Justice and he found it did not.
Judge Browning ruled the language in the use-of-force policy is consistent with the “objective-reasonableness standard”. This is the legal standard articulated by the U.S. Supreme Court in the case of Graham v. Connor , 490 U.S. 386 (1989). The US Supreme Court decided the case on May 15, 1989.
“Graham v. Connor determines the legality of every use-of-force decision any police officer makes. Using the Graham standard, an officer must apply constitutionally appropriate levels of force, based on the unique circumstances of each case. The officer’s force should be applied in the same basic way that an “objectively reasonable” officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene.”
https://www.policemag.com/341717/understanding-graham-v-connor
Judge James Browning wrote:
“the determination whether a reasonable officer would have known that the offender suffered from mental illness is not based on whether it surfaces after the situation that the offender suffered from mental illness. Instead, the determination is based on whether a reasonable officer at the crime scene would have known from the circumstances that a person suffered mental illness.”
POLICE UNION REACTS TO RULING
It took the city years to revise APD’s use-of-force policies in a manner consistent with the court-approved settlement agreement, policies the police union has also been objecting to for a number of years.
According to Assistant City Attorney Lindsay Van Meter who is handling the case for the city, the dispute all started in early 2019 as disagreement between the city and the Albuquerque Police Union over the wording of one use of force policy.
The city’s policy reads that detectives investigating use of force cases “shall consider the facts that a reasonable officer on the scene would have known at the time the officer used force.” The Police Union wanted to change it for investigators to consider the facts “known to the officer at the time of the incident.” An example the police union gave was if an officer is rushing to a scene but doesn’t have time to see on his computer that the person is mentally ill, then uses force, they would be scrutinized for what they “would” or “should have known.” The APOA said this ruling says the officer should have read and known the person was mentally ill, which could have changed his interaction.
The APOA believes the wording is unconstitutional. Police Union President Shaun Willoughby had this to say:
“It is kind of subjective in our opinion to what I would have heard on the radio or on the scanner or what if, what if, what if.”
CITY’S REACTION TO RULING
City spokeswoman Jessie Damazyn wrote in a news release about Judge Browning’s ruling:
“A key component of the Settlement Agreement with the DOJ – and the work to repair APD’s relationship with the public – was an overhaul of the department’s Use of Force Policies”
The City Attorney’s reaction to Judge Browning’s ruling is that the ruling is a clear a victory for the City and APD. The ruling puts a bigger responsibility on police officers to investigate and gather more information about a suspect before they resort to using force.
Assistant City Attorney Lindsay Van Meter who is handling the case for the city had this to say:
“I was never really clear why they took as much objection to it as they did. These policies put very clear limits on the use of force by officers, make sure officers are investigated thoroughly and fairly and make sure everyone is held accountable when they use force. By limiting it to facts known to the officer at the time of the incident, that in our view would not allow the investigator to consider that other officers on scene did observe that particular circumstance and would show if an officer actually had reason to know something they say they didn’t know.”
The city said the policy creates an incentive for officers to fully assess a situation before deciding to use force. Both the city and APOA agree it’s a higher standard from the department’s policy prior to the Department of Justice reforms, which Van Meter said did not identify a standard. Van Meter said with this increased level of oversight it is easier to hold officers accountable when force is used.
https://www.krqe.com/news/albuquerque-metro/judge-rules-in-favor-of-city-on-use-of-force-overhaul/
POLICE UNION’S RESISTANCE TO CASA REFORMS
Federal Court Appointed Independent Monitor Dr. James Ginger who is overseeing the reforms has reported that since December 1, 2017 Mayor Tim Keller took office there has been a change in attitude and level of cooperation by APD. However, Ginger has also reported significant resistance to the reforms by APD mid-level management consisting of sergeants and lieutenants. The Federal Monitor has labeled the resistance the “counter CASA” effect.
OPERATIONAL COMPLIANCE LEVELS
The CASA was negotiated to be fully implemented over a four-year period. On November 14, 2020, it will be 6 full years that have expired since the city entered into the CASA with the DOJ. Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in 3 compliance areas, and maintains compliance for 2 years, the case can be dismissed.
For the purposes of the APD monitoring process, “compliance” consists of three levels: primary, secondary, and operational compliance levels.
The 3 compliance levels are:
1.PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.
2.SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.
3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.
Page 9 of 307, Case 1:14-cv-01025-JB-SMV Document 578 Filed 05/04/20
COUNTER CASA EFFECT
Notwithstanding the passage of almost 6 years, APD continues to struggled with the implementation of all the mandated reforms and is still under a federal court ordered consent decree.
It was in the Federal Monitors 10th audit report that the “Counter CASA” effect was fully explained. According to the Federal Monitor’s 10th report:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
…
“Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example:
• Sergeants assessed during this reporting period were “0 for 5” in some routine aspects of CASA-required field inspections;
• Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met;”
In his 11th “Independent Monitor Reports” Dr. Ginger again noted APD’s struggle to implement and maintain policy changes. He laid blame by stating that APD personnel
“were still failing to adhere to the requirements of the CASA found in past monitoring reports, including some instances moving beyond the epicenter of supervision to mid- and upper management levels of the organization. … Some in APD’s command levels continue to exhibit behaviors that “build bulwarks” [walls] preventing fair and objective discipline, including a process of attempting to delay and in some cases successfully delaying the oversight processes until the timelines for administering discipline had been exceeded. [The] delays prevented an effective remedial response to behavior that is clearly in violation of established policy.”
…
… Since the beginning of the CASA compliance process that there were a few at APD who were overtly resistant to the CASA. [The Monitor] in the past [has] found evidence of a “counter-CASA effect” among some at the supervisory, mid-management, and command levels at APD. Those who knowingly or subconsciously count themselves in this group are beginning to face pressure to change their assessment of the value of the CASA. In some cases [they] have faced reasonably prompt and appropriate corrective efforts from the current executive levels of the APD for behavior that is not congruent with the CASA. … This as an essential way forward if APD is to move into full compliance [with all the CASA mandated reforms]. The remaining issue is that this pressure is neither uniform nor persistent.”
See pages 4 and 303 of 11th Federal Monitors Report with the link to the entire report here:
https://www.justice.gov/usao-nm/file/1274006/download
11th FEDERAL AUDITORS REPORT COMPLIANCE STATUS ASSESSMENT
On May 4, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 11th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The report covers the eleventh monitoring period from August 1, 2019 to January 31, 2020.
EDITORS NOTE: The postscript to this blog article contains links to 10 articles reporting on the Court Approved Settlement Agreement and the 11 Federal Monitors Reports
In the previous 10th Federal Monitor’s Report, APD was reported to have met 100% of CASA-established primary compliance requirements during the reporting period. To quote the audit “This means, in effect, that policy requiring compliance actions and processes are complete, and are reasonably designed to achieve the articulated goals of the CASA.” Secondary compliance rates (training) were reported at 81%, up from 79% and overall compliance rates are at 63%, the same as the 9th audit report.
In the 11th audit report that covered the time period of August 1, 2019 and ended in January 31, 2020, the federal monitor found APD was 100% in primary compliance, no change from 10th report, a 93% in secondary compliance, a change of 14.8% from the 10th report, and 66% in operational compliance, a change of 3%.
Primary Compliance relates mostly to development and implementation of acceptable policies and conforming to national practices.
APD is now in 93% Secondary Compliance as of the 11th reporting period, which means that effective follow-up mechanisms are beginning to be taken to ensure that APD personnel understand the requirements of promulgated policies in the areas of training, supervising, coaching, and disciplinary processes to ensure APD personnel understand the policies as promulgated and are capable of implementing them in the field.
APD is in 66% Operational Compliance with the requirements of the CASA, which means that 66% of the time, field personnel either perform tasks as required by the CASA, or that, when they fail, supervisory personnel note and correct in-field behavior that is not compliant with the requirements of the CASA.
COMMENTARY AND ANALYSIS
Six years ago, the APD Union was not a named party to the original civil rights complaint for excessive use of force and deadly force filed against the city by the Department of Justice (DOJ). Soon after the DOJ initiated the federal lawsuit against APD and the City, the APOA police union intervened to become a party to the federal lawsuit in order to advocate for union interests in city policy and changes to the “use of force” and “deadly force policies.”
The Police Union, despite public comments of cooperation and comments made to the court, have never fully supported the agreed to reforms. The Police Union contributed significantly to the delay in writing the new use of force and deadly force policies. The union leadership has always been at the negotiating table and for a full year were involved with the drafting of the “use of force” and “deadly use of force” policy.
The union contributed to the one-year delay in writing the policies objecting to many provisions of the policies. The police union repeatedly objected to the language of the use of force policy asserting the policy was unreasonable. This was evidenced by the monitors claim that submitted use of force policy was missing key components and the monitor saw 50-plus changes needing to be made to satisfy union objections.
The union leadership has attended and has sat at counsel table during all court hearings and the Federal Monitor presentations on his reports. During all the Court proceeding where the federal monitor has made his presentation to the federal court, the APOA union has made its opposition and objections known to the federal court regarding the use of force and deadly force policies as being too restrictive with rank and file claiming rank and file cannot do their jobs even with training on the policies.
Six of the 9 Federal Monitor’s status reports have been scathing against the city accusing the previous APD chain of command of delaying and obstructing the DOJ reform process, yet the police union had no comment and took no position. When the previous administration accused the federal monitor of biasness and attempted to have the monitor removed, after the Assistant Chief secretly tape a conference meeting with the monitor, the police union remained totally silent ostensibly giving its support to have the federal monitor removed.
POLICE UNION MEMBERSHIP AND COMPLAINTS
It is pathetic that after almost a full 6 years of the consent decree, APD is only at a 66% operational compliance rate with progress in the single digits percentage wise each year. The most likely reason for this is the police union where APD sergeants and lieutenants are part of the union and management at the same time. The federal monitor has reported repeatedly in no uncertain terms that there are problems with APD sergeants and lieutenants enforcing policies and to discipline officers who violate those policies.
The police union and its leadership have said in open court that the mandated reforms under the consent decree are interfering with rank and file officer’s ability to perform their job duties. A mere 10 months ago during the August 20, 2019, a day long status conference, the APOA union President Shaun Willoughby made is clear that the attitude towards the CASA has not changed in the least.
District Court Judge Browning asked APOA Union President Shawn Willoughby what he and the union rank and file felt about the CASA. Willoughby’s responses were a quick condemnation of the CASA when he said “we hate it”, “we’re frustrated”, the reforms and mandates are “a hard pill to swallow”, that “all change is hard”. According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. In the same breath, Willoughby went on to brag about how his union, unlike other police unions in city’s with consent decrees, actually worked and cooperated with the city and the DOJ.
The police union has never articulated in open court and in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs and “why they hate” the CASA as articulated by the union president. It’s likely the union feels what is interfering with police from doing their jobs is the mandatory use of lapel cameras, police can no longer shoot at fleeing cars, police can no longer use choke holds, police need to use less lethal force and not rely on the SWAT unit, police must use de-escalating tactics and be trained in crisis intervention, and management must hold police accountable for violation of standard operating procedures.
According to the Federal Monitors 10th report:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
All APD police sergeants and lieutenants are clearly part of police management and chain of command and should not be a part of the union. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms. The police union refuses to acknowledge or agree to removal of the sergeants and lieutenants from the bargaining unit knowing it will eliminate the unions ability to influence them in management and it will reduce the size of the dues paying union membership.
FINAL COMMENTARY
There is no word yet if the police union will seek to appeal Judge Browing’s decision. If it does, the appeal will take time and no doubt delay even further to APD’s achieving 100% compliance with the reforms to allow for dismissal of the case.
The current police union contract expires on June 30. The City and the Union have now suspended their negotiations because of the corona virus pandemic and the uncertainty of the city’s revenues for the new fiscal year that begins July 1. It has been made known that union contract negotiations will again commence some time in August, and until a new union contract is negotiated and approved, the terms and conditions of the old contract will remain in effect.
One term that the city needs to negotiate is that Sergeants and lieutenants need to be made at will employees and removed from the police union bargaining unit in order to get a real buy in to management’s goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms.
Until sergeants and lieutenants are removed from the union and made at will employees, do not expect the CASA reforms to be in 100% compliance allowing the dismissal of the case.
_______________________________
POSTSCRIPT
Following are related blog articles on the DOJ Court Approved Settlement Agreement and the Federal Monitors Reports:
https://www.petedinelli.com/2017/11/07/citys-conduct-stupid-is-as-stupid-does/
https://www.petedinelli.com/2017/05/25/appoint-special-master-to-take-over-apd-to-implement-reforms/