This blog article is about political plagiarism. On December 12, 2020, the Albuquerque Journal published a front page story with the banner headline “City seeking to hire chief of public safety.” The link to the Journal article is here:

https://www.abqjournal.com/1526078/city-seeking-to-hire-chief-of-public-safety.html

According to the front-page story, Mayor Tim Keller is looking to hire a “chief of public safety who would oversee the chiefs of the police department, the fire department and the office of emergency management”. According to the posted job description:

“in addition to overseeing the three department heads, the new hire must coordinate with the Chief of Police to provide strong reform-minded leadership as the department works to achieve and maintain compliance with the Court Approved Settlement Agreement dictating the police reform effort.”

City spokesperson Jessica Cambell had this to say:

“The Chief of Public Safety would also play an active role in APD reform, and serve as a policy and regulatory expert.”

May 1, 2018 DINELLI BLOG ARTICLE

Over two years ago om May 1, 2018, political blog www.PeteDinelli.com posted an article that proposed the EAXACT same thing that Keller is proposing, except with the title “Public Safety Commissioner” and with greater detail.

Below is the blog article posted:

Create Department Of Public Safety; Abolish APD Internal Affairs; Create Salary Structure

Posted on May 1, 2018

On April 1, 2018 Mayor Tim Keller submitted his first budget to the Albuquerque City Council.

For the next 2 months, public hearings will be held by the City Council with the final budget to be voted upon for approval.

The approved budget will to take effect July 1, 2018.

USE BUDGET PROCESS TO ESTABLISH PUBLIC SAFETY DEPARTMENT

It is during the budget approval hearing process that the Keller Administration has the best opportunity to propose sweeping and dramatic changes to improve public safety and the Albuquerque Police Department.

Mayor Tim Keller should propose the creation of a Department of Public Safety by executive order or executive communication to the Albuquerque City Council for their approval and funding during the budget process.

Overtime, the Department of Public Safety would include both the Police and Fire Departments, both Police and Fire Academies, and 911 emergency dispatch center, the emergency operations center with the appointment of a Public Safety Commissioner.

A national search should be conducted to identify qualified candidates to serve as Public Safety Commissioner who have a firm understanding on constitutional policing practices.

Implementation of the DOJ consent decree reforms would be the top priority of the Public Safety Commissioner and would to include continued formulation, writing and implementation of standard operating procedure and changes agreed to under the consent decree, expansion of crisis intervention mandates and certified training of APD department personnel in constitutional policing practices.

There is a need for a complete overhaul and restructuring of APD with the appointment of a new chief, new commanders, lieutenants, academy director and a 911 manager.

Every single APD felony unit needs to be increased in personnel by anywhere between 40% and 60%, including the following APD units: Armed Robbery, Auto Theft, Burglary, Homicide, Gang Unit, Narcotics, Property Crimes and Sex Crimes Units and the Criminal Nuisance Abatement Unit.

The number of sworn police officers patrolling the streets is currently 436 and it should be increased to at least 650 out of a fully staff department of 1,200.

The Public Safety Department would consist of four civilian staffed divisions and managed by the Public Safety Commissioner:

1. Personnel and training, for recruiting, hiring, internal affairs investigations and police academy;
2. Budget and finance;
3. Information technology support and crime lab; and
4. 911 emergency operations center with a civilian manager.

“Deadly use of force” cases need to continue to be investigated by the Critical Incident Review Team and the final reports with finding and recommendations.

ABOLISH APD INTERNAL AFFAIRS

APD has consistently shown over many years it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice.

The APD Internal Affairs Unit needs to be abolished and its functions absorbed by the Office Independent Council.

The investigation of police misconduct cases including excessive use of force cases not resulting in death or nor serious bodily harm should be done by “civilian” personnel investigators.

The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by police should be assumed by the Office of Inspector General in conjunction with the City Human Resources Department and the Office of Internal Audit where necessary.

The Office of Inspector General would make findings and recommendations to the Public Safety Commissioner for implementation and imposition of disciplinary action.

IMPLEMENT NEW PAY SCALE STRUCTURE FOR THE RANK AND FILE POLICE

Albuquerque Police Officers are some of the best paid law enforcement in the country when you take into account their pay, longevity pay incentives, benefits and retirement pay.

Based on a recent police union annual survey, many APD police officers strongly dispute they are well paid, but in comparison to other city employees, they clearly are.

There are approximately 4,200 “classified” employees who work for the City of Albuquerque.

The average salary for classified city employees is $30,000 to $35,000 a year.

The average entry level Albuquerque patrolman first class makes $56,000 to $58,000 a year, depending on actual hours worked in a year.

Sworn police are paid an additional 15% for benefits, such as insurance, paid sick leave and annual leave and the positions are classified and a police officer cannot be terminated without cause.

A review of the city’s 250 top earners in 2017 reveals that 66 patrol officers first class were among the highest paid city employees earning a total of around $7.1 million in salary and overtime.

A total of 124 of the 250 top wage earners at city hall are employed by the Albuquerque Police Department.

The 124 include patrol officers, sergeants, lieutenants, commanders and deputy chiefs, assistant chief and the chief with annual pay ranging from $95,000 a year up to $166,699 a year.

(See City of Albuquerque web site for full list of 250 top city wage earners).

Five (5) APD Patrol Officers First Class are listed in the top 250 city wage workers as being paid $146,971, $145,180, $140,243, $137,817 and $125,061 respectfully making them the 6th, the 7th, the 10th, the 12th and the 20th highest paid employees at city hall.

There are listed 66 Patrol Officers First Class in the list of the top 250 wage earners at city hall earning in excess of $95,000 a year and as much as $146,000 a year.

The high pay paid to the Patrol Officers First Class can is attributed to excessive overtime paid.

Combined, there are a total of 91 APD sworn police officers and sergeants who are named in the top 250 wage earners and city hall.

All patrol officers first class are paid the exact same hourly rate of $27.50, no matter the number of years on the police force, therefore a four (4) year veteran of the force makes the same hourly wage as a ten (10) year veteran.

Every year, the police union makes the same old tired demand of increasing hourly wages to Patrol Officers First Class as a solution to improving morale and retention numbers.

Under the union contract, sworn police officers are paid a mandatory two hours of overtime and paid “time and a half” for court appearances such as arraignments of DWI offenders and police prosecution of misdemeanor cases.

A complete restructuring of APD hourly wages to base salaries should be implemented.

APD has an extensive history of exceeding its overtime budget by millions each year.

In 2017, APD exceeded its overtime budget by $4 million going from $9 million budgeted to $13 million spent.

APD should do away with hourly wage and time and a half for overtime for sworn police and implement a salary structure based on steps and years of service.

A mandatory “cap” on the amount overtime a sworn police officer can be paid needs to be established that is fair and equitable for all sworn personnel to make available overtime to more sworn police officers in the department.

A system of overtime bonuses to be paid at the end of the year for accumulated increments of overtime could be implement.

Shift time to work would remain the same, but if more time is needed to complete work load, the employee works it for the same salary with no overtime and a modification of shift times for court appearances.

Salaries and step increase take away inflating overtime and motivates employees to get more done within the allotted shift or modification of shift times.

Yearly experienced officer retention bonuses should be increase and made permanent.

CONCLUSION

High crime rates, public safety, the Albuquerque Police Department, the Department of Justice reforms, were the biggest issues debated in the 2017 Mayor’s race.

Mayor Tim Keller was swept into office with a 62% vote landslide giving him a mandate for change.

The Keller Administration is still in its infancy, and many voters are loyal with high hopes.

However, the tone and direction the Keller Administration is taking does not represent visionary change and frankly not much of change at all when it comes to APD management.

Mayor Keller has yet to take any substantive advantage of his election mandate win.

Voters are not seeing the sweeping, visionary change he promised with APD.

Notwithstanding, voters are expecting results and they are impatient after 8 years of failed APD leadership and high crime rates.

Mayor Keller should use some the considerable political capital given to him with his landslide win and seize the opportunity to make real change with the creation of a Department of Public Safety before the opportunity completely vanishes.

The link to the article is here:

https://www.petedinelli.com/2018/05/01/create-department-of-public-safety-abolish-apd-internal-affairs-create-salary-structure/

COMMENTARY AND ANALYSIS

“Political plagerism” is one of the highest forms of flattery but anyone who engages in it without quoting the source risks being called out on it. There have been at least 3 occasions where I have met with Mayor Tim Keller in private twice before he was elected and once after he was elected. In one meeting, I actually gave him a tour of the downtown area that I grew up in.

It was in January, 2018, I met with Mayor Keller at his request to discuss a number of issues he was faced with including the ART bus project, the Albuquerque Police Department (APD), the Department of Justice reforms and economic development. We were followed and accompanied by his APD police detail dressed in civilian clothes.

The biggest issue I discussed with him was the Albuquerque Police Department (APD) and the Department of Justice reforms. It was during this meeting I complimented him on his recent appointment of Former New Mexico State Treasurer James Lewis to help with the DOJ reforms. I also suggested the creation of the Department of Public Safety and abolishing the Internal Affairs Unit, but he showed no interest. I also suggested that he abandoned the ART bus project and file suit against the bus manufacturer.

After our meeting ended, I asked Keller if he had any more questions or if he had any objections to what I had been writing in the blog and what was the reason for our meeting. Keller responded he had no more questions, he said I had covered what he wanted to know my thoughts on. Mayor Keller told me that I was a very “prolific writer” and then Keller asked that I be fair with my blog articles. With his last comment to be fair, it became very clear the real reason why he wanted to meet with me in the first place.

On May 1, 2018, the blog article was published and emailed directly to Mayor Tim Keller but he never responded.

The Albuquerque Journal’s article adds insult to injury when it reports on the fact that Republican Party Operative and political hack Darren White was the last Chief Public Safety Officer for the City. He was my successor and White essentially did anything he could to destroy programs I had implemented including the highly successful Safe City Strike Force. At least the paper reported White was forced to step down in 2011 following a controversy related to a crash involving his wife.

Many thanks to the Albuquerque Journal for publishing my guest column on APD pay abuse entitled “Stop Gaming Police Overtime, City Should switch to salary structure for officers”

Below is the guest column followed by the link to the Albuquerque Journal:

“APD is being investigated by the New Mexico attorney general and state auditor for overtime pay abuse after it was revealed that a number of APD police officers were paid in excess of $100,000 in overtime in addition to their hourly pay. APD paying excessive overtime to a few is nothing new and has gone on for years. Historically, time and time again, year after year, the temptation to be paid two, three, even four times more a year than what your base pay is by padding hours worked is way too great. Excessive overtime paid is a red flag for abuse of the system and proof of police resource mismanagement. The overtime gaming system must be stopped.

One guaranteed way of stopping anyone within APD from gaming the system is to abolish the existing system of overtime pay and bonus pay. Sooner rather than later, the city and the APD union need to recognize that being a police officer is not trade work justifying hourly wages, but a learned profession that requires employees to work whatever time is necessary to get a day’s work done that may arise in that day. APD police can be compensated with a decent salary and not merely paid hourly wages.

A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented. As an alternative to paying overtime and longevity bonus pay to APD officers, the city needs do away with APD hourly wages and time-and-a-half for overtime and implement a salary structure based strictly on steps and years of service.

A base salary system for all sworn police officers should be implemented with step increases for length of service. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same. If more time is needed to complete a workload or assignments for the day, the salaried police officer would work it for the same salary with no overtime paid and a modification of shift times for court appearances. Officers would have control over time worked.

APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignment, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear.

Until the APD salary structure is changed, APD will always have Patrol Officers First Class making two, three and even four times their base salary, and emotional burnout will be the norm, not the exception endangering public safety. Until the APD salary structure is changed, you will also have more than a few employees “gaming the system.”

It’s the taxpayer and other city employees who are getting hurt when APD exceeds its budget by the millions and when APD management does not really care about anyone else but APD. When APD exceeds its overtime pay budget, the money has to come from somewhere. That somewhere is usually other city departments affecting other city employees. The mayor, APD management and City Council are being foolish if they do not realize that when APD exceeds its overtime budget, it causes morale issues and resentment within other city departments and employees who are not paid overtime.

Negotiations for a new APD union contract have been suspended because of the pandemic. If and when the city and the APD union return to the bargaining table to negotiate a new contract, the abolishment of hourly wages for APD sworn officers and implementation of a salary structure should be the first negotiated item for the new contract.”

The link to the Albuquerque Journal is here:

https://www.abqjournal.com/1525726/stop-gaming-police-overtime.html

In a letter dated October 14, 2020, Bernalillo County District Attorney Raul Torrez notified the Bernalillo County Sheriff’s Office (BCSO) and the Albuquerque Police Department (APD) that his office was introducing a new disclosure policy. The policy is based on the 1974 United States Supreme Court ruling Giglio v. United States, 405 U.S. 150 (1972). The Giglio ruling requires the prosecuting agency, in this case the Bernalillo County District Attorney’s Office, to disclose to a criminal defendant all information or material that may be used to impeach the credibility of the prosecution witnesses including police officers and sheriff officers who are witnesses for the prosecution in any case.

The Supreme Court ruling in the Giglio case in nothing new and has been required since 1972. The DA’s office formalizing the process is new. According to the DA’s office, it is being done now because of the dramatic “recent slow-down” in the criminal courts giving the time to develop a training protocol and the infrastructure to launch the new policy. According to District Attorney Raul Torrez, the new system will bring transparency to the criminal justice system and hold prosecutors and law enforcement accountable. Torrez told both APD and BCSO in his October 14 letter:

“My office joins a growing number of prosecutor offices around the nation that are embracing reform and police accountability by formalizing this Giglio inquiry process. Historically, requests for Giglio material have been done on a case-by-case basis and the results of earlier Giglio inquiries have not been searchable. Beginning in November my office will start implementing a formal and searchable system.”

The letter goes on to say that law enforcement officers listed as witnesses in an open case will receive a questionnaire where information like past misconduct of bias, use of force or truthfulness, or criminal charges must be disclosed. The findings will then be placed into an officer’s personnel file. The postscript to this blog article outlines the information that will be asked in the questionnaire to law enforcement and contained in the October 14, 2020 letter from District Attorney Torrez. A link to the October 14 letter from the District Attorney to APD and the BCSO is here:

https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed

LET IT BE MADE PUBLIC

On November 6, DA Torrez announced he intends to create a list of law enforcement officers who have disclosures reflecting a history of dishonesty, use of force, bias or other issues that might make them unfit to aid in a prosecution case or prohibit them from testifying in court. The DA’s Office said it hopes to begin publishing the list on its website early 2021. The list will consist of the names of officers who have Giglio disclosures that prosecutors are required to provide to defense attorneys where law enforcement witnesses may be unreliable or biased. The new list is being touted as the first public database of its kind in the country.

District Attorney Raúl Torrez stressed the practice of disclosing the material itself is not new. Both the Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association routinely ask for Giglio disclosures at the beginning of cases and it is done on a case-by-case basis.

BERNALILLO COUNTY SHERRIFF MANNY GONZALES RESISTS

After Bernalillo County Sheriff Manny Gonzales received the letter in October from District Attorney Raul Torrez, a BCSO spokesman said the letter was a “sensitive matter” and that the office would be writing a letter of response to the DA’s Office. The BCSO did say it had concerns over the confidentiality and constitutionality of the policy.

Shortly after learning of the new DA’s policy, Sheriff Manuel Gonzales sent a memo to all BCSO deputies telling them not to respond to the DA’s questionnaire. Instead, Sheriff Gonzales told his deputies to answer two questions he provided for them to answer. Those two questions are:

1. “Are you aware of any sustained Internal Affairs investigatory findings indicating you provided untruthful testimony, or were found to be untruthful in the course of your duties?”

2. “Are you aware of any court or judicial body that has determined you provided false or deliberately misleading testimony under oath?”

DA TORREZ RESPONDS TO SHERIFF’S RESISTANCE

DA Torrez quickly criticized the Sheriff’s resistance to responding to the DA’s questionnaire. DA Torrez told Sheriff Gonzales that asking just two questions “improperly narrows the scope of material that should be disclosed”. DA Torres went on to ask for the Sheriff Gonzales’s cooperation. In a one-page response, Sheriff Gonzales called the eight-question questionnaire “lengthy and intrusive,” and said he believes the information requested in the DA’s questionnaire “intrudes on the privacy rights of our deputies and is constitutionally immaterial.”

DA Torrez sent Sheriff Gonzales a letter in response and wrote:

“One of the more troubling aspects of your letter is the purported finality of your decision. … You appear to have no interest in a dialogue with my office to discuss your concerns. Instead, you simply refuse to follow your constitutional and statutory duty, as if that is the end of the matter. Your letter smacks of the type of deliberate indifference or reckless disregard for the truth in withholding evidence from the prosecution that can serve as the basis for civil liability on the part of police agencies. … Like your prolonged resistance to body cameras, your position on [the disclosure requirements mandated by the US Supreme Court] unnecessarily calls into question the integrity of your office’s investigations.”

In a December 4 interview with KOB TV 4, DA Torrez had this to say about Sherriff’s Gonzales resistance to the mandatory disclosures:

“I think this is a police and law enforcement leader who doesn’t understand that the world has changed fundamentally about the public’s expectation for transparency and accountability. … It’s not for the sheriff to decide what is constitutionally immaterial. … That’s what prosecutors are for. That’s what attorneys are for. That’s why we have courts, and independent fact finders to review the information, there are procedural safeguards. But ultimately, every federal court and the few state courts that have looked at this have resoundingly rejected that argument.”

“It’s my belief, and frankly, it’s the belief of virtually every court that’s looked at this, that public servants that are wearing a badge and a gun that are authorized to enforce the law and use force on the streets of Albuquerque and investigate crimes– when they’ve engaged in misconduct, they don’t have a privacy, right to keep that information, certainly from prosecutors. … The constitution, in fact, requires that we ask the questions, and that you know, that they respond and answer those questions.”

Gonzales declined to an interview with KOB 4 but said in a statement:

“Mr. Torrez should … focus on prosecuting cases and obtaining justice for victims in Bernalillo County which he has failed to do.”

https://www.kob.com/albuquerque-news/da-torrez-sheriff-gonzales-in-dispute-over-tracking-misconduct-among-law-enforcement-officers/5942491/?cat=500

After sending his correspondence to Sheriff Gonzales, DA Torrez notified the New Mexico Public Defenders Office and the New Mexico Criminal Defense Lawyers Association of the dispute with the Sheriff. Torrez also sent both the exchange between the offices. DA Spokeswoman Brandale Mills-Cox Torrez’s said the DA’s Office will continue to prosecute criminal cases investigated by the Sherriff’s office. However, Mills-Cox said the DA’s Office will inform the courts and opposing counsel that the Sheriff’s Office is not complying with the Supreme Court disclosure requirements and said it this way:

“We have informed both the Sheriff and the criminal defense bar that we intend to ask these questions during pre-trial witness interviews and, should deputies refuse to answer these questions, we will join defense in any motion to compel disclosure pursuant to our constitutional obligations.”

SHERIFF GONZALES DEFLECTS DEMANDS

Sheriff Gonzales in a letter to DA Torrez rendered his legal opinion and wrote:

“We believe the information requested in your questionnaire intrudes on the privacy rights of our deputies and is constitutionally immaterial.”

In a statement, Sheriff Gonzales said:

“[The DA’s letters contain] false allegations and direct contradictions of what I have instructed our deputies to do, and that is to follow the law. … Understanding the Brady and Giglio court rulings’ intent, the Sheriff’s Office has a questionnaire form each deputy is required to answer, which sufficiently meets the obligations under Giglio and Brady. … Finally, in lieu of threatening this office with frivolous litigation, Mr. Torrez should instead focus on prosecuting cases and obtaining justice for victims in Bernalillo County, which he has failed to do.”

Bernalillo County Sheriff’s Office Spokeswoman Jayme Fuller said that Sheriff Gonzales is committed to upholding the United States Constitution, is committed to serving and protecting people in the community, and that Sheriff Deputies will provide the U.S. Supreme Court disclosure material he believes is required under the law. Fuller said:

“Despite the DA’s lengthy correspondence, he failed to provide our Office with any authority, other than his oblique reference to [US Supreme Court rulings] that would justify the use of his lengthy and intrusive questionnaire. … Further, neither the U.S. Attorney’s Office nor the N.M. Attorney General’s Office have submitted a similar questionnaire to this Office. For many years, our deputies routinely participate in Giglio disclosures and interviews regarding case prosecution with the U.S. Attorney’s Office.”

PUBLIC DEFENDER’S OFFICE REACTS

New Mexico Public Defender’s Office spokeswoman Maggie Shepard said that in the past, defense attorneys have struggled and had to fight to get the materials reflecting a history of dishonesty, use of force, bias or other issues involving law enforcement called to testify. According to Shepard:

“We are encouraged that DA Torrez is saying he will hold BCSO deputies and leadership accountable to their community. … We believe all police misconduct is relevant to the testimony they give in court. As DA Torrez has implemented this program, we’re seeing more transparency from his office and from law enforcement, and that benefits the community.”

https://www.abqjournal.com/1523435/sheriff-gonzales-bucks-das-deputy-misconduct-questionnaire.html

https://www.kob.com/albuquerque-news/da-torrez-sheriff-gonzales-in-dispute-over-tracking-misconduct-among-law-enforcement-officers/5942491/?cat=500

NOT THE FIRST TIME SHERIFF GONZALEZ CHALLENGED ON MANAGEMENT OF SHERIFF’S OFFICE

Sheriff Gonzales’s dispute with District Attorney Raul Torrez is not the first time he has shown he is a “law enforcement throwback” to days gone by failing to keep up with changes in the law and failing to adopt law enforcement best practices.

LAPEL CAMERA OPPOSITION

Gonzalez has gotten a lot of mileage and publicity with his very public opposition to lapel cameras. Sheriff Gonzales has consistently opposed the use of lapel cameras by the Bernalillo County Sheriff’s office while lapel camera usage is required of APD and law enforcement agencies throughout the country. Many Democrats and Republicans strongly disagree with Sheriff Gonzales’ resistance to ordering the use of lapel cameras by his deputies. Last fall the Bernalillo County Commission allocated $1 million in startup money, plus $500,000 in recurring annual funds, for the sheriff’s office to get dashboard cameras and lapel cameras, but Sheriff Gonzales refused and no equipment was ever purchased.

On July 15, Sheriff Gonzales essentially ignored the lapel camera usage by all law enforcement in the state mandated by the 2020 legislature. At the time, Gonzales announced he was looking to partner with a private company so his deputies can put “smart phones” in their vests and record video instead of using body cameras. The suggestion to use “smart phones” was met with extreme ridicule. State Senator Joseph Cervantes, D-Las Cruces, the sponsor of the mandatory use of lapel cameras by all New Mexico law enforcement, burst out laughing when told of the sheriff’s plan to use smart phones.

Senator Cervantes had this to say:

“I’m pleased to see the sheriff is finally willing to adopt one of the tools of modern law enforcement. … We passed a law that requires body-worn cameras, so if he wants to do it by duct-taping iPhones on his officers’ chests, that’s his prerogative, although I think it creates the possibility of becoming a laughingstock.”

https://www.ctpost.com/news/article/Besieged-New-Mexico-sheriff-eyes-smartphones-as-15411944.php

A $4 MILLION DOLLAR SETTLEMENT BY BCSO AND STILL NO LAPEL CAMERAS

On March 6, 2020, it was reported that the family of a mentally ill Elisha Lucero, 28, who was shot and killed by Bernalillo County Sheriff’s deputies in front of her home during a misdemeanor battery call last summer, settled their lawsuit with the county for $4 million. The two Sheriff Deputies who shot and killed Elisha Lucero were not wearing lapel cameras. The two are the same deputies who were sued, along with the Sheriff, by the ACLU for racial profiling during traffic stops of African American women. (See below: RACIAL PROFILING ACCUSATIONS AGAINST BCSO.)

In July, 2019, mentally ill Elisha Lucero, 28, was shot to death in front of her RV, which was parked in front of her family’s South Valley home. Deputies had responded to the home after a relative called 911 saying Lucero had hit her uncle in the face. According to the 911 call, a relative said Lucero was mentally ill, needed help, and was a threat to herself and to everybody else. Just one month prior, Lucero had called BCSO and asked to be taken to the hospital for mental health issues. According to the lawsuit, when deputies arrived, they said Lucero initially refused to come out of the home. The 4-foot-11 Lucero, naked from the waist up, ran out screaming and armed with a kitchen knife and the deputies pulled their revolvers and shot her. According to an autopsy report, she was shot at least 21 times by the deputies.

The Lucero family civil suit states:

“the deputies created a situation where they were forced to use deadly force against Ms. Lucero or have justified their unlawful use of deadly force with the falsehood that Ms. Lucero presented a deadly threat to one or all of them.”

The Lucero lawsuit filed on January 13 alleges Sheriff Gonzales has fostered a “culture of aggression” in the department and too few deputies are trained to handle people with mental health issues. The allegation of a “culture of aggression” and the use of deadly force when dealing with the mentally ill is identical to what the Department of Justice investigation found within the Albuquerque Police Department (APD) 6 years ago resulting in the DOJ federal Court Approved Settlement Agreement. Albuquerque has paid out $5 million to $6 million for it’s most high-profile officer-involved shootings, including the shooting of mentally ill homeless camper James Boyd and mentally ill Christopher Torres prior to beginning its reform effort with the Department of Justice.

Even after the shooting of Elisha Lucero and the $4 Million settlement, Sheriff Gonzales did not change his opposition to lapel cameras. Gonzales has proclaimed his deputies do not need lapel cameras because they have audio recorders on their belts. He also said he saw no proof that lapel cameras reduce use of force by law enforcement.

https://www.abqjournal.com/1428402/family-of-mentally-ill-woman-shot-by-bcso-gets-4m-settlement.html

BCSO RACIAL PROFILING CASES SETTLED

In this day and age of the Black Lives Matter movement, civil lawsuits are the norm and not the exception against any law enforcement agency and the Bernalillo County Sheriff’s office is no different. There is no doubt if Sheriff Gonzales runs for Mayor, his management of BCSO will be examined as will any and all lawsuits filed against the department for systemic racial profiling under his watch.

On July 8, 2020, it was reported that two Black women from Wisconsin are suing Bernalillo County Sheriff Manuel Gonzales and two deputies alleging racial and religious profiling stemming from a traffic stop in July 2017. The lawsuit was filed about five months after Bernalillo County reached a $100,000 settlement with Sherese Crawford, a 38-year-old African-American who filed a lawsuit against BCSO after she was pulled over three times in 28 days by deputies Patrick Rael and Leonard Armijo, the same deputies named in the new lawsuit, in spring 2017.

According to the lawsuit filed by Sisters Consweyla and Cynthia Minafee, and a 5-year-old child, Yahaven Pylant, were traveling from Phoenix back to Wisconsin when they were pulled over by Rael on Interstate 40 the morning of July 7, 2017. Cynthia Minafee was Yahaven’s legal guardian at the time. According to the lawsuit, the traffic stop lasted almost an hour and included an extensive search of the vehicle with a drug dog.

According to the lawsuit, Rael told the women to get out of the car and said he could smell marijuana on Cynthia. Cynthia said that she had not smoked in the car and that there was no marijuana in the vehicle. Consweyla Minafee, the driver, was not issued a traffic citation, but Cynthia Minafee was issued a citation for not having Yahaven properly restrained. The citation was dismissed in May, online court records show.

A link to the full Albuquerque Journal article is here:

https://www.abqjournal.com/1473973/two-bcso-deputies-face-second-racial-profiling-lawsuit.html

It was on December 6, 2017 that the American Civil Liberties Union (ACLU) of New Mexico filed a lawsuit on behalf of Sherese Crawford, a 38-year-old African-American woman on temporary assignment in New Mexico as an Immigration and Customs Agent (ICE) deportation officer. The lawsuit alleged that Bernalillo County Sheriff’s Office (BCSO) deputies racially profiled her by pulling her over three times, twice by the same deputy, within a month with no probable cause or reasonable suspicion that she was breaking the law. None of the 3 times she was pulled over was she given a warning or a citation.

ACLU of New Mexico Staff Attorney Kristin Greer Love had this to say at the time:

“Our client is an accomplished federal agent who was targeted for driving while black … BCSO unlawfully and repeatedly stopped her because she fit a racial profile. Targeting people because of the color of their skin is unconstitutional and bad policing. Racial discrimination has no place in New Mexico, and BCSO must take immediate action to ensure that this behavior does not continue.”

https://www.aclu-nm.org/en/press-releases/aclu-files-racial-profiling-lawsuit-against-bcso

CLAIMING TO REACH ACROSS PARTY LINES BY COZZYING UP TO TRUMP

This past summer, Sheriff Gonzales went to the White House to participate in a photo op with President Donald Trump to attend Trump’s announcement of a federal law enforcement initiative to target violent criminals and repeat offenders in 7 cities with some of the highest crime rates in the country which included Albuquerque. Gonzales declared at first he was going to met with Trump and that he had the desire and obligation to reach across party lines when it came law enforcement. It turns out it was a Trump press conference and photo op and Sheriff Gonzales did not speak. Republican United States Attorney for New Mexico John Anderson, who was appointed by Trump, did attend and gave interviews after the press conference.

The problem was that Gonzales was the only county and city official who who was invited to attend. The Bernalillo County District Attorney, the Mayor, the President of the City Council and the Presiding District Court Judge, all who are Democrats dealing with the same high crime rates as Sheriff Gonzales, where not even invited to attend.

True or false, the Gonzales trip was widely criticized by Democrats. Senator Martin Heinrich even went so far as to demand that Sheriff Gonzales resign, with the resignation demand considered by many as over the top. The Sheriff’s trip was interpreted as an endorsement of President Trump’s law enforcement policies. Sheriff Gonzales should have known better and not gone at all or have sent the Under Sheriff in his stead.

COMMENTARY AND ANALYSIS

On September 6, 2019, BCSO Sheriff Manny Gonzales made it known he was planning on running for Mayor in 2021. Sources have confirmed he is running on a platform of being tough on violent crime, bringing down the city’s high crime rates and consolidating the Albuquerque Police Department and the Bernalillo County Sheriff’s Department to create a single law enforcement agency.

It’s likely a Mayor Gonzales will not only appoint a new APD Chief, but he will micro manage APD that is under a federal consent decree. Sheriff Gonzales has not publicly expressed his concerns about the DOJ consent decree, but it is known to many in law enforcement that he has significant reservation and disagreements with the federal Court Approved Settlement Agreement (CASA). Confidential sources say Gonzales intends to campaign for Mayor on a platform to dismiss the federal court case and abolish all the reforms imposed upon APD and seek dismissal of the federal lawsuit.

Ostensibly, Sheriff Gonzales thinks that getting into a public spat with the elected Democratic Bernalillo County District Attorney on mandatory disclosure of sheriff deputy misconduct will somehow ingratiate him with conservative voters, both Democrats and Republicans, saying he stands on his principals and for his law enforcement colleagues and against all crime. It’s also likely Gonzales believes that support from conservative Democrats and conservative Republican voters will propel him into the Mayor’s office and he will defeat Mayor Tim Keller as Keller seeks a second term. He is sadly mistaken

The blunt truth is that a badge does not allow anyone to ignore the courts nor give one a license to practice law without a license on any level. Further, despite what Gonzales may think, it is the Bernalillo County District Attorney who is the Chief Law Enforcement Officer of the County, not the Bernalillo County Sheriff. Responding to the Bernalillo County District Attorney’s questionnaire on police misconduct as written should have been a no brainer. But not for Gonzales in that it would not allow Gonzales to get the headlines he has been coveting ever since he decided to run for Mayor and by his repeated law enforcement sweeps within the city limits where APD has primary jurisdiction. With the sweeps in the City, Gonzales will be able to say his office is doing the job APD cannot do, which is get violent criminals off the streets.

What he is in fact revealing with his resistance to the mandates of the United States Supreme Court on disclosures is that he feels he and his deputies are above the law. Simply put, they are not, and the courts will no doubt order him to disclose the information in all criminal prosecutions if push comes to shove. One or two contempt of court citations will likely get the Sheriff’s attention.

Sheriff Gonzales has a full two years left of his current term and he is prohibited from running for another term. 2021 is just a few days away. If he is indeed running for Mayor in 2021, he should go ahead and announce now, resign his position and let the Bernalillo County Commission find someone who really wants the job and not campaigning for another.

If he is not running for Mayor, it is suggested that Gonzales stop trying to practice law without a license, or at least fire anyone who has been giving him such poor legal advice on what has been mandated by the United State Supreme Court. Gonzales needs to honor the request made by the Chief Law Enforcement Official of the county, otherwise he risks all the arrests and cases his department handles are worthless because of dismissals or the DA declining to prosecute the cases.

_______________________________________________

POSTSCRIPT

GIGLIO MATERIAL BEING ASKED FOR DISCLOSURE

In the October 14, 2020 letter, District Attorney Torrez outlined the information that will be asked in the questionnaire to law enforcement:

“Examples of Giglio information include but are not limited to:

MISCONDUCT THAT REFLECTS BIAS

Information that may be used to suggest that the investigative employee is biased for or against a defendant or witness in a case

Information that may be used to suggest that the investigative employee is biased against a particular class of people, for example, based on a person’s gender, gender identity, race, or ethnic group
Misconduct that reflects on truthfulness

A sustained finding that an investigative employee has filed a false report or submitted a false certification in any criminal, administrative, employment, financial or insurance matter in his or her professional or personal life

A sustained finding that an investigative employee was untruthful or has demonstrated a lack of candor

A finding of fact by a judiciary authority or administrative tribunal that is known to the employee’s agency, which concludes in a finding that the investigative employee was intentionally untruthful in a matter, either verbally or in writing

A sustained finding that undermines or contradicts an investigative employee educational achievements or qualifications as an expert witness

Inappropriate or unauthorized use of government data

CRIMINAL CHARGES

A pending criminal charge or conviction of any crime, disorderly person, petty disorderly person, municipal ordinance, or driving while intoxicated matter

OTHER MISCONDUCT OR INVESTIGATIONS

Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is subject of a pending investigation

Any promises, offers, threats or inducements, including the offer of immunity

A sustained finding or judicial finding that an investigative employee intentionally mishandled or destroyed evidence

Misconduct that involves the use of force

Our office will disclose Giglio material will disclose to defense counsel, file a notice of disclosure, and will log the disclosure on a Giglio list.”

A link to the October 14 letter from the District Attorney is here:

https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed

UNITED STATES SUPREME COURT RULINGS

There are two landmark United States Supreme Court case that are at issue and they are Brady v. Maryland, 373 US 83, decided in 1963 and Giglio v. United States, 405 U.S. 150, decided in 1972.

Brady v. Maryland, 373 U.S. 83, (1965) is the 1965 case that established that the prosecution must turn over all evidence that might exonerate the defendant and aide in the defense. The prosecution failed to do so for Brady, and he was convicted and the conviction was overturned. The US Supreme Court found in Brady v. Maryland that due process is violated when the prosecution “withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.” This is the case even if the failure to disclose was a matter of negligence and not intent.

Giglio v. United States, 405 U.S. 150, is a 1972 Supreme Court case involving the prosecution’s obligations in regards to criminal discovery and disclosure. In Giglio, the Court went further and held that “all impeachment evidence falls under” the Brady holding. What this means is that the prosecution is obligated to disclose all information or material that may be used to impeach the credibility of prosecution witnesses, including police officers who are called as witnesses for the prosecution.

The consequences of Brady and Giglio are simply stated as police officers must be especially careful to avoid any and all actions or statements that could compromise their credibility. This could easily include racial slurs and expressions of racial prejudice. A good example involves the case of OJ Simpson when investigating homicide officer Mark Furhman was impeached on the witness stand for his history of racial slurs that destroyed his credibility on the stand.

One legal authority succinctly put it this way:

“[Under the Supreme Court rulings] the prosecution is legally required to disclose any misconduct or compromising information regarding the witness to the defense attorney, who will then use it to impeach the law enforcement witness on the stand. The end result can be the loss of what would have been a strong case.”

Under New Mexico State law, it is not illegal to release disciplinary records of police officers. However, police departments that choose to keep them private cite an exception to the state’s Inspection of Public Records Act (IPRA) that provides “letters or memorandums, which are matters of opinion in personnel files” are exempt from public inspection.

In 1977, the New Mexico Supreme Court specifically held that “disciplinary action” and other “matters of opinion” can be withheld. The Supreme Court held that the legislature anticipated there could be documents concerning disciplinary action that “might have no foundation in fact.”

Currently, each law enforcement agency in New Mexico can interpret the state’s public records law differently. The Albuquerque Police Department (APD) consistently releases Internal Affairs Investigations and the discipline records of officers especially when civil lawsuits are filed or an officer is charged with a crime. Many other departments in the state simply resist requests and do not release the personnel records. What this means is that there are varying policies throughout the state law enforcement agency that are in a constant state of change when new management takes over.

On Monday December 7, the Albuquerque City Council voted unanimously to approve funding for its contribution to the Netflix $1 Billion massive expansion at Mesa Del Sol. On November 23, it was reported that Netflix will be expanding its presence in New Mexico by more than 10 times as it already exists by adding 300 acres to its existing 30-acre property located at Mesa Del Sol at the South border of the City. Netflex said it intends to make Albuquerque its North American production headquarters. The expansion comes a mere two years after the media giant purchased the ABQ Studios.

New Mexico Economic Development Secretary, Alicia Keyes, said the Netflix deal is going to build an ecosystem and solidify New Mexico as the place to be for film and television. The Netflix expansion will break ground in 2021.

Keyes laid out the New Mexico Film Office’s top priorities for the expansion and said:

“Our priorities for the next few years are really to train our crew base, and make sure that they can upskill so that they’re moving up the ladder within the industry,” she said. “We would like to enroll more small businesses in New Mexico within the vendor program for the state film office where lumber companies, restaurants, glass companies can register themselves in order to service the industry. Also, we need to focus on above the line talent and really how to build an ecosystem so that we’re not only a crew destination, but we’re creating our own content.”

“One part of the deal that we’re really excited about is that Netflix is going to put a trainee center here and also a post-production facility. … “They also will have programs for underrepresented filmmakers—so below the line for the Black, Latino and also Native communities.”

“I think it’s an exciting time for students here in New Mexico, to be able to train and live and work and stay in their state with their families and also be involved in such an amazing thriving industry in which they can be paid well and get benefits. .. I really think that New Mexico is the place to be for film and television now.”

Link to news sources are here:

https://www.kob.com/albuquerque-news/nm-secretary-of-economic-development-discusses-new-opportunities-to-come-with-netflix-expansion/5944931/?cat=500

https://www.krqe.com/news/albuquerque-metro/albuquerque-city-council-approves-funding-for-netflix-expansion/

https://www.krqe.com/news/albuquerque-metro/albuquerque-city-council-approves-funding-for-netflix-expansion/

MASSIVE PHYSICAL EXPANSION AND FINANCIAL INVESTMENT

According to Netflex, in addition to the 300-acre expansion, it will add up to 10 new stages, post-production services, production offices, mills, backlots, and training facilities, wardrobe suites, a commissary to support meals and craft services, and other flex buildings to support productions.

Netflix said the expansion includes job creation over the next 10 years of upwards of 1,000 “project based” production jobs in New Mexico. An additional $1 billion in production spending and $150 million in capital expenditures is expected over the 10 years. The capital investment is expected to create upwards of 1,467 construction jobs needed to complete the expansion of the studios.

The State of New Mexico will be allocating up to $17 million in Local Economic Development Act (LEDA) funding. The city of Albuquerque for its part is committing up to $3 million in local LEDA funding to the project. In the 2018 , Netflix purchase, the company received a total of $14.5 million LEDA funds combined from both the state and city.

According to the State Land office, 130 of the total 300 acres will be leased from the State Land Office. The remaining 170 acreage is private property that will be either purchased or leased by Netflix.

As part of the financing for the expansion, the City of Albuquerque will issue an Industrial Revenue Bond (IRB) to partially abate property and other taxes over a 20-year term for the first $500 million investment by Netflix to build out the production facility.

All the City incentives are pending the approval of the Albuquerque Development Commission and the Albuquerque City Council. The project has been reviewed by the Mesa del Sol Tax Increment Development District Board and it is going before the Albuquerque Development Commission on Monday, November 30. The Albuquerque City Council will review the project during its December 7 regularly scheduled meeting. Once approved by both entities, the funding will be disbursed following “benchmarks” set out in the Public Participation Agreement agreed to by the parties.

The Netflix expansion plan with Local Economic Development Act (LEDA) funding is on the same lines as the deal that occurred in 2018 requiring benchmarks that must be met to secure the city and state funding. In 2019, Netflix reached its benchmark of a $75 million direct spend within nine months. The new expansion agreement calls for Netflix to spend $1 billion over the course of a decade. In addition, Netflix will be adding 1,000 jobs per year.

In the proposed investment deal, Netflix has agreed to provide training programs for crew and production team employee positions in partnership with the New Mexico Film Office, local universities, labor and industry organizations. In partnership with the New Mexico Film Office, Netflix has also committed to supporting New Mexico’s Native American, Latino, Black and other underrepresented groups’ content creators and filmmakers.

Netflix Co-CEO Ted Sarandos had this to say in a statement:

“New Mexico provides an outstanding production and business environment in close proximity to Los Angeles with some of the best crews and creative talent in the world. … The expansion will bring many new high-tech and production jobs to the region, while allowing us to be more nimble than ever in executing production plans for so many series and films enjoyed by our members all over the world, while cementing the status of the region as one of the leading production centers in North America.”

Since 2018, Netflix has filmed “Army of the Dead,” “El Camino,” “Godless,” “Daybreak,” “Chambers” and “Messiah” in New Mexico. It is currently filming “The Harder They Fall” and “Intrusion”. Netflix will soon begin filming season four of “Stranger Things.”

Links to related news sources are here:

https://www.kob.com/albuquerque-news/nm-secretary-of-economic-development-discusses-new-opportunities-to-come-with-netflix-expansion/5944931/?cat=500

https://www.koat.com/article/netflix-plans-major-expansion-in-abq/34761785

https://www.krqe.com/news/new-mexico/netflix-to-expand-abq-studios-pledges-1b-investment/

https://www.kob.com/albuquerque-news/netflix-announces-plan-to-add-300-acres-to-abq-studios-/5932504/?cat=500

https://www.abqjournal.com/1520539/netflix-plans-significant-expansion-in-abq.html

GOVERNEMENT REACTION

Governor Michelle Lujan Grisham had this to say about the Netflix expansion:

“My administration has expanded our state’s competitive film incentives, facilitating more opportunities for rural communities and high-wage employment for New Mexicans all across the state. … I am glad Netflix has chosen to double-down on its commitment to our state, and our partnership will continue to grow for the benefit of New Mexicans across the board.”

New Mexico State Land Office Commissioner Stephanie Garcia Richard for her part had this to say:

“Netflix’s expansion to state trust land is great news for our state. Because of this partnership, New Mexico will benefit from new jobs and more revenue flowing into communities that become filming location. … Netflix has already been delivering on those promises, but by moving onto state trust land, an estimated $24 million will be going to the University of New Mexico, the beneficiary of the state trust land onto which they will expand their studios.”

Alicia J. Keyes, Secretary of New Mexico Economic Development, acknowledging the pandemic, had this to say:

“This expansion secures New Mexico’s future as the place to make movies. Because of COVID, people and businesses are looking for alternatives outside of big cities. It was important for us to jump off with this expansion. We’re seeing other companies from different industries seeking out New Mexico. … Part of our job is to help local businesses and get through the pandemic. … The other part of our job is the future of New Mexico. We need a secure and diversified economy. We can’t rely on oil and gas, retail and tourism as much. We have to have things like aerospace and film to strike that balance.”

Keyes reference to the aerospace industry is an obvious reference to the Orion development. It was on Thursday, November 12, the City of Albuquerque Environmental Planning Commission approved the new site plan for the “Orion Center.” It is an aerospace and technology facility that will be built on the 122-acre plot of land located between Kirtland Air Force Base and Albuquerque International Sunport. “Group Orion”, the developer, is a subsidiary of Theia Group Inc., a Washington D.C. based, privately held aerospace company. The Theia Group is attempting to develop a network of satellites to digitally image and collect data on the physical world, providing solutions in areas from logistics to biology.

The Orion Center Development is truly and exceptional development using the city property and resources to expand the city’s economy, especially during the time of a pandemic. There is no doubt that the success of the project will fit squarely into the long-term need for the city to expand its economy and recruit in a targeted and expanding global aerospace industry. Surprisingly, the Group Orion has not requested any economic development incentives from the Local Economic Development Act funds.

NEW MEXICO’S EVER-EXPANDING FILM INDUSTRY

Over the last 20 years, the film and television industry has steadily grown and been one of the few bright spots for the state, especially during the great recession, when it comes to economic development and diversifying the state’s economy which is very dependent on federal spending. The New Mexico Film Office reports that in in 2003 the industry had direct spending in New Mexico was $7 million. In fiscal year 2019, direct spending reached a record high of $525.5 million. According to state estimates, Netflix will generate an estimated $344 million in taxes to the state, local school districts, and other local governments.

It was in 2019 that the film industry began to seriously emerge to be one of the biggest hopes for Albuquerque and New Mexico to diversify both the city and states economies. The unmistakable evidence was the immense investment in the city and state by NBC Universal and the Netflix purchase of Albuquerque studios as the site of a new production hub. Both announced NBC and Netflix announced opening film production facilities in Albuquerque.

NBC DEAL

On June 14, NBC Universal announce it would open a studio in Albuquerque as part of a 10-year venture with Garcia Realty and Development. The media giant took over and renovated and created sound stages at a now vacant industrial building south of I-40 on Commercial Street, north of downtown in the vicinity of historic Martinez town. The media giant is expected to provide more than 330 full-time jobs year-round at the film studio.

NBC Universal employees earn about $58,000 a year which is a far cry from the minimum wage jobs the city is use to announcing with the arrival of new businesses. The studio operation is projected to generate an economic impact of $1.1 billion over a 10-year period.

The state’s Economic Development Department is providing $7.7 million through the Local Economic Development Act (LEDA) to the redevelopment and production commitment. The City of Albuquerque will provide another $3 million from its LEDA fund which was approved by the Albuquerque City Council on June 17, 2019 by a unanimous vote.

NETFLEX DEAL

On October 8, 2018, it was announced that Netflix was buying Albuquerque Studios. The State contributed $10 million of Local Economic Development Act funds. The City of Albuquerque contributed another $4.5 million of Local Economic Development Funds. Albuquerque beat out other places such as Denver, Salt Lake City, Austin, New York, Georgia and Los Angeles. The Albuquerque site will be Netflix’s first hub purchased in the United States. Albuquerque Studios is an enormous complex that includes 9 sound stages, a backlot and management offices. New Mexico’s other 4 production studios are I-25 Studios, Garson Studios, Santa Fe Studios and Las Cruces Studios as other productions seek studio space for their projects.

https://www.abqjournal.com/1230755/netflix-to-buy-abq-studios.html

https://www.krqe.com/news/new-mexico/netflix-buys-albuquerque-studios/1507392854

Originally it was estimated that at least 1,000 well-paying jobs per year will be created. The jobs will run the gamut of film and TV production work, most of which is project-based contract labor. Many of the jobs are expected to pay $70,000 a year. The purchase deal also calls for $1 billion worth of production spent over 10 years which will have a dramatic effect on the City and State economies.

https://www.petedinelli.com/2019/06/17/lights-camera-action-means-jobs-repeal-nm-criminal-abortion-law/

TAX CREDITS FOR FILM AND TELEVISION PRODUCTION

On March 29, 2019, Governor Michelle Lujan Grisham signed into a law legislation expanding tax credits for film and television productions in a bid to bring more business to New Mexico’s studios as well as its cinematic mesas and small towns. Governor Michelle Lujan had called upon the legislature to abolish the annual $50 million cap on film rebate spending cap, but the legislature instead more than doubled it. The enacted legislation also pays off up to $225 million in tax credits already owed to the film and television industry. The film and television industry has hit the $50 million annual cap on tax credits in recent years, leaving the state with a backlog of $382 million through fiscal year 2023.

The enacted law more than doubled the original cap of $50 million to up to $110 million in in tax credits for film and television productions each year. That cap does not apply to production companies that have purchased or signed a 10-year lease for facilities, like Netflix, which is setting up shop in Albuquerque. The new law also provides an additional 5 percent credit for productions more than 60 miles outside of Bernalillo and Santa Fe counties, a measure that proponents argued would promote the industry in cities like Las Cruces as well as in rural areas of the state. The law also requires the state to collect additional data on how the credits are used.

It was on July1, 2019 that the current film tax incentive package went into effect. It raised the cap on what can be paid to film and TV productions in a single year to $110 million. Film production companies receive a 25% rebate on goods and services expenses for most of their projects in New Mexico. Some TV shows get up to a 30% rebate. An additional 5% tax credit is given to companies that take their film productions to rural areas.

COMMENTARY AND ANALYSIS

The one industry that represents the future of New Mexico and a major hope for expanding New Mexico’s economy is the film industry. Simply put, the film industry creates jobs for New Mexicans. The New Mexico film industry expands each year in large part because of the tax credits. With the incentive subsidies, the State economy will continue to benefit from continued millions in direct spending that will improve the economy. Jobs will also be created in ancillary or supportive industries such as food catering, cleaning and maintenance and security.

With the Nextflix original purchase and now the expansion, the State has a major production and distribution company hub that will produce projects on a consistent time line for 10 to 20 years. Last year alone, the film and TV production industry brought in over $180 million of direct spending to the city and state.

The City and the State need to continue with efforts that will ensure that our education institutions such as the New Mexico Community College continue to offer a trained work force for the film industry. Both the City and the State need to create more incentives to build and guarantee that the industry continues to prosper in New Mexico.

The film industry with both the NBC deal and the Netflix expansion is clearly in the future of Albuquerque and New Mexico. The film industry and the aerospace industry are the best hope at this point in diversifying our economy and wean the state off of federal government reliance. Albuquerque and New Mexico need to pursue with a vengeance the growth industries of healthcare, transportation, the film industry and the aerospace industry to diversify our economy. Public-private partnerships in the growth industries where ever possible should be encouraged and developed.

Links to related blog articles are here:

2020 “Orion Center” Type Of Development Foreseen In 2013 “Energize Alb” Plan; PATHETIC: City Set Aside Of $5.8 Million For Economic Development Out Of $1.1 Billion City Budget; Mayor Keller Relies On Luck For Economic Development

Film Industry Biggest Hope To Diversify New Mexico Economy

“Lights, Camera, Action” Means JOBS!; Repeal NM Criminal Abortion Law

On Friday, December 4, an all-day status conference hearing was held “virtually” before Federal District Judge James Browning on the 12th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). Upward of 90 people participated via a ZOOM call.

During the hearing, it was revealed publicly for the first time that the City and the Department of Justice are negotiating a “stipulated order” for court approval that would create an outside “Use of Force Investigation Team”. The City and the DOJ want to file the stipulated order in January. The order is being negotiated between the city and the DOJ to avoid having the DOJ seek “contempt of court” against the city and APD for intentional violations of the Court Approved Settlement Agreement (CASA) by APD outlined by the Federal Monitor in his 12th Report.

Both the City and the DOJ failed to seek any input on the stipulated order from the stakeholders or the amici groups. When given the opportunity to address the court, the amici groups and other stake holders expressed opposition to creating a “use of force investigation team”. The groups view it as a step backward that will lead to APD not doing its job in the reform process.

This blog article is an in depth report on the December 4 hearing and a discussion of what needs to be done and the recommendation of 8 sua sponte orders.

USE OF FORCE INVESTIGATION TEAM

During the December 4 status conference hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told Judge Browning:

“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”

The enforcement action that could have been filed is a “Motion for Contempt of Court” seeking sanctions against the City and APD for intentional violations of the CASA. Another option would have been to have had APD placed in a “receivership” with the appointment of a Special Master to take over the day to day management of APD, something advocated for by police reform advocacy groups.

As presented during the hearing, the investigation team will be totally independent from the city and the APD Internal Affairs Unit and APD Force Review Board. the Use of Force Investigation Team would consist of highly experienced professionals, potentially from all over the country, whose responsibility would investigate level 2 and level 3 uses of force which involve great bodily harm, permanent injury or death. The outside team of experts would interact with APD personnel, gather evidence as needed and conduct interviews if needed and submit final reports within a very short time frame of weeks. Normally, such investigations have been taking upwards of 6 months to a year.

Killebrew said the proposal is for the city to hire external investigators who could work remotely from anywhere in the country, at least until the pandemic no longer poses a problem. Existing Internal Affairs Force Division detectives would conduct the on-the-ground investigation at the scene, including taking photographs and taking witness interviews. The investigation materials gathered would be sent to the external investigators. The external investigators who would determine if they think force was improperly used. Discipline recommendations would also be made.

The city’s procurement process would be used and the city would fund the services. The goal would be to hire the most qualified professionals with a proven track record. Final reports prepared by the “use of force” investigation team would then be forwarded to the city’s Use of Force Board.

According to Killebrew, the use of force investigation team will not be easily side tracked by APD interference and resistance and put it this way:

“There are not that many human beings that stand between Internal Affairs Force investigators and the chief of police … We believe that if the external team conducts the investigation and recommends a finding of out of compliance and recommends discipline, it will be obvious to us if the external team’s findings are being undermined by the commander over IAFD, the deputy chief or by the chief. We can then target any necessary action at those levels of command.”

Judge Browning stated that a stipulated order creating a “use of force” investigation team was not as intrusive as putting the city under a receivership. However, Judge Browning did question if creating such a “use of force” team outside the city for investigation was a “tremendous loss of sovereignty and self-direction by the city”.

Special counsel Killebrew said he agreed with the Judge but he said there are some cases where external investigations are already happening, such as those done by the Civilian Police Oversight Agency or when the police department requests it in cases where high ranking officials are implicated. What was not disclosed to Judge Browning is that the City has an extensive history of using a private investigation company that is comprised of retired APD Police Officers who have been on more than one city contract over the years. In other words, you have former retired APD Officers investigating APD Officers.

Killebrew made it clear the possibility of filing for contempt against the City and APD is not off the table if the negotiations with the city on the stipulated order break down and no agreement is reached.

INTERIM CHIEFS’ REACTION

Interim Chief Harold Medina during his presentation to the court acknowledged multiple missteps in criminal investigations over the years and said:

“It’s very apparent that in our investigative process, we don’t have a strong bench … It’s not just in the terms of force investigations. You’re from the city, your honor, I’m sure you watch the media, we’ve had some major debacles over the years in our investigative division. We need to teach people how to be investigators and bringing outside entities to help us will only make us stronger.”

Medina also told Judge Browning that he knows there are officers in the department who are resisting the reform process. He went on to add that they need to be held accountable with some even fired. Medina told the court:

“None of us come to work every day to end someone’s career, and at the times when those tough calls need to be made, the executives of this department have to have the courage to make those tough calls and to continue to make those tough calls. … The community deserves it and their fellow officers deserve it because there are a lot of officers out there every day doing their jobs to the best of their abilities, they’re not violating anyone’s rights, they’re not using excessive force.”

Medina acknowledged previous reports of his involvement with officer involved shootings which were reported extensively on when he was appointed Interim Chief, but he said he was never disciplined because he did not violate standard operating procedures. A link to a related blog article on Medina outlining his involvement in use of deadly force is here:

https://www.petedinelli.com/2020/09/28/a-chief-medina-is-kellers-unicorn-medinas-reactive-decision-making-results-in-death-chief-geier-i-did-not-want-to-retire-says-keller-and-nai/

CITY AND DOJ IGNORED ADVOCACY GROUPS INSTRUMENTAL IN BRINGING DOJ TO CITY

During the presentation of Special Counsel Paul Killebrew on the stipulated order the DOJ and the City are negotiating for the creation of a “use of force team”, it became painfully obvious that the City and the DOJ did not even bother to confer with the police reform advocacy groups, amici and stakeholders. It was the advocacy groups that can be credited as the most instrumental in bringing the DOJ to the city in the first place demanding investigation of APD for excessive use of force, deadly force and racial profiling. The police reform advocacy groups demanded action from the Department of Justice as well as Mayor and City council. The police reform advocacy groups during their presentations to Judge Browning made it known that they felt that an outside “use of force team” would be a major mistake.

Police reform advocacy groups submitted letters to the court outlining their concerns over the 12th Federal Monitors Report. The attorneys submitting letters included Civil Rights Attorney Peter Cubra on behalf of plaintiffs in a state prison overcrowding case and NM State Representative Moe Maestas who represents a group known as the “Community Coalition”. Also submitting a position letter was APD Forward.

The Community Coalition comprises a number of minority originations and individuals. It includes individuals who have actually been victimized by APD over the years or whose family members have been victimized. The coalition includes family members who have sued APD and the city for wrongful death actions and with some settling their cases for millions of dollars.

APD Forward includes 19 organizations who have affiliated with each other in an effort to reform APD and implement the DOJ consent reforms. Members of APD Forward include Albuquerque Health Care for the Homeless, American Civil Liberties, Bernalillo County Community Health Council, Common Cause New Mexico, Disability Rights New Mexico, Equality New Mexico, League of Women Voters of Central New, Mexico New Mexico Conference of Churches, New Mexico Criminal Defense Lawyers Association, Sierra Club Rio Grande Chapter, the Transgender Resource Center of New Mexico and the American Civil Liberties Union (ACLU).

After six years of the consent decree the APD reform advocates for the first time included a request that the Federal Court be far more aggressive with mandating the CASA reforms. One letter goes as far as to asked for the city and the Albuquerque Police Officers Association be held in civil contempt of Court.

A link to a related blog article is here:

https://www.petedinelli.com/2020/12/02/apd-police-reform-advocacy-groups-seek-contempt-of-court-and-seek-to-place-apd-in-receivership-after-6-years-2-mayors-millions-spent-police-union-interference-failed-progress/

APD Forward in its letter points out that the 12th Federal Monitor reports identify several places he traces resistance to interference by the police officer’s union. APD Forward goes on to ask the question:

“Why is the Albuquerque Police Officers’ Association still included as a litigant in the CASA when they have been actively undermining reforms?”

State Representative and private attorney Maestas goes as far as to suggest that the city renegotiate the police union terms that are conflict with the CASA. If new union contract terms are negotiated, one term that needs to be negotiated is who are allowed in the bargaining unit.

The advocacy groups asked the judge to hold the city in contempt of court and to place APD in “receivership” where a court appointed receiver, also known as a “special master” would act as a de facto police chief and enforce the settlement agreement. At the November 4th hearing, the advocacy groups strongly objected to the idea of external investigators, saying that measure is not going to solve the root problems that have plagued APD for the last 6 years.

During the hearing, Civil right attorney Peter Cubra specifically asked Judge Browning to hold the city in contempt. Cubra complained that the public has no idea about how often force is being used unconstitutionally due to the poor quality of reporting and investigations. Cubra also said he was “distraught” about the idea of bringing in external investigators by saying:

“There is nothing about subcontracting investigations to somebody else that will lead this to be over. … Paradoxically, if we let the city off the hook and say, ‘OK don’t investigate improper use of force,’ how will they ever get the case over? They actually have to learn how to do it.”

FORCE REVIEW BOARD

Assistant City Attorney Lindsay Van Meter gave a presentation to Judge Browning which included a report on the Force Review Board. The Force Review Board consists of high ranking APD Officials that review use of force incidents. Van Meter acknowledge that there have been serious issues with the Force Review Board and that it had “experienced growing pains”. Van Meter told Judge Browning that board members were asking more probing questions and have made many more referrals for additional investigations.

Van Meter said while the board has started to identify problems with the use of force investigations itself, there is room for improvements. According to Van Meter bringing in an outside entity would be helpful and she had this to say:

“The city does believe that a substantial part of what will be required will be training APD investigators in the proper standards and looking at those systems developed by APD and ensuring that those systems are not going to lead to failure. … So the city is working with the DOJ … . They did send over a stipulated order.”

A link to news coverage and quoted source material is here:

https://www.abqjournal.com/1523741/city-doj-consider-outside-investigators.html

WHY DID IT TAKE SO LONG?

One question asked by Judge Browning during the November 4 hearing was “why did it take so long to rewrite the use of force policies” and why couldn’t the parties just adopt policies that have been written elsewhere, by taking them “off the shelf” so to speak. The answer to Judge Browning’s question is threefold:

1. The prior Berry administration claimed that it was told by the Federal Monitor that it could not adopt best practices and policies from other jurisdictions and that APD would have to draft its own policies.

2. The police union contributed significantly to the one-year delay in writing the policies objecting to many provisions of the policies as “unworkable” or “unreasonable”. The police union repeatedly objected to the language of the use of force policy and deadly force policy. 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.

3. Early in the process of writing the use of force and deadly force policy, the Federal Monitor was essentially asked the same question asked by Judge Browning as to why policies written elsewhere could not be adopted. The Federal Monitor expressed his opinion that he could have easily written the policies “off the top of my head” but refused to get involved with writing the use of force or deadly force policy saying it was not his job and it was up to the parties to write their own.

FEDERAL MONITOR DEFENDS WORK PRODUCT

During the December 4 status conference Judge Browning ask the Federal Monitor to respond to public criticism that his charges are excessive. Ginger’s response was that he stood by all the worked done by his monitoring team. He noted the contract was awarded by competitive bid and his firm was the lowest bidder.

Ginger stated his monitoring team has provided to the city services above and beyond what is required under the contract. Ginger from the very beginning has said his job is not to tell APD what to do, that he has no management nor control over APD and that all he could do was audit and report to the Federal Court.

In 2014, the prior Republican Mayor Administration entered into a $1 million dollar “no bid contract” and retained 2 national experts to negotiate Court Approved Settlement Agreement (CASA). Under the CASA, the city agreed to 271 reforms and agreed to pay for a Court Approved Monitor to audit APD’s progress implementing the reforms.

In 2015, Dr. James Ginger and his firm of PMR Inc of South Carolina were selected by the DOJ and appointed by the court as the Federal Monitor. Dr. James Ginger, is a nationally recognized expert on police reform and organizational change and he hand-picked nine people from across the country, each with a different background and expertise in police reform. Ginger has successfully overseen similar agreements and has worked with law enforcement agencies in Pennsylvania, New Jersey, New York, Ohio, Texas, Florida, Georgia, Alabama and Indiana. Ginger’s contract was originally for $4.5 million dollars for a 4 year period. The Federal Monitor will also be paid an additional $500,000 for further services.

The CASA was to have been fully implemented after 4 years and was to be dismissed after two consecutive years of 95% compliance of the reforms. It has now been over 6 years since the CASA was agreed to by the city. During the last 6 years, there have been 2 United States Attorneys for New Mexico, 2 federal judges assigned to the case, 2 Mayors elected, 3 APD Chiefs appointed and upwards of $40 million spent by APD to implement the reforms.

DRAIN ON CITY RESOURCES FOR REFORM EFFORTS

During the December 4 hearing, Federal Judge James Browning asked city representatives to address critics arguments that too many law enforcement resources are being spent on CASA reforms that would be better used for law enforcement priorities. The Assistant United States Attorney for New Mexico responded no and argued that those who enforce the law must not be above the law and the resources being spent are necessary for the oversight. Interim Chief Harold Medina for his part said the resources are needed to ensure that police officers are doing their jobs in a constitutional manner and said:

“The community deserves it and their fellow officers deserve it because there are a lot of officers out there every day doing their jobs to the best of their abilities, they’re not violating anyone’s rights, they’re not using excessive force.”

WHAT IS BEING SPENT ON CASA REFORM EFFORTS

The Fiscal Year 2020-2021 approved general fund budget for APD contains a line item of $29,280,000 for “PD-PROFESSIONAL ACCOUNTABILITY”. The funding is for the Compliance Bureau which has 61 sworn police assigned to the APD divisions associated with the Department of Justice Consent Decree reforms and enforcement.

The Albuquerque Police Department (APD) is the largest budget department in the city with the city council approving a $212 million budget. The approved budget funds a total of 1,678 full time positions that includes 578 civilian staff and funding for 1,100 sworn police. Currently, APD has 980 sworn police.

The APD approved budget includes $5.2 million for continued work to comply with the Court Approved Settlement Agreement with the Department of Justice. Appropriations in the 2021 adopted budget include:

$627,000 to acquire electronic control weapons that have an audit trail to monitor usage and compliance with use of force policies.

$594,000 to purchase on-body cameras, as required by the CASA and now state law.

$500,000 for the Violence Intervention Program, including restorative justice programs, which has a track record of dramatically reducing violence in cities across the nation.”

The link to the 2020-2021 proposed adjusted budget is here:

https://www.cabq.gov/mayor/documents/final_fy21-budget-presentation-_09032020.pdf

COURT QUESTIONS ROLE OF POLICE UNION

Throughout the December 4 day’s long hearing, Federal Judge Browning asked a number of those who made presentations about the role the APD Union Police union. The same questions on the police union were asked of the Department of Justice Attorneys, the Police Union Attorney and Interim Chief Harold Medina.

EDITORS NOTE: The Chief, the 5 Deputy Chiefs, Assistant Deputy Chiefs and all APD Area Commanders are “unclassified” positions and they can be terminated “without cause” at any time. They are prohibited from being members of the police union and are management. The Chief serves at the pleasure of the Mayor and Deputy Chiefs and Area Commanders serve at the pleasure of the Mayor and Chief and can be terminated without cause. APD Lieutenants and Sergeants, Detectives and Patrol Officers are all are “classified” positions and can only be terminated for cause and are part of the union. Any and all disciplinary actions taken against APD Lieutenants and Sergeants, Detectives and Patrol Officers are governed by the union contract. APD Lieutenants and Sergeants are management positions but are classified positions and are covered by the union contract.

POLICE CHIEF CANNOT FIRE CLASSIFIED SWORN PERSONNEL; BOUND BY UNION CONTRACT

A question asked by the court was if the APD Chief had the authority to fire any police officer immediately for clear or obvious police misconduct that is found or reported upon, even by news sources. The answer to the question given by Elizabeth Martinez, Assistant United States Attorney for New Mexico and Interim Chief Harold Medina was no, the chief cannot fire union members without cause.

Judge Browning was told that any disciplinary action against any member of the police union is governed by the collective bargaining unit contract. The police union contract outlines police officers’ personnel rights and remedies, provides for personnel hearing, provides for internal affairs investigations, and provides for progressive discipline and the use of a matrix for discipline available.

DECERTIFICATION OF UNION

Judge Browning asked Paul Killebrew, special counsel for the DOJ’s civil rights division, if the court had the authority to “decertify” the police union, ostensibly for violating the terms of the CASA. Killebrew said he has never been asked the question, he had no opinion and said the question needed to be researched. Union attorney Fred Mower responded that the union has a binding negotiated contract under federal labor laws and it has not violated the union contract.

LIEUTENANTS AND SERGEANTS

Judge Browning asked the question if APD Lieutenants and Sergeants should be allowed to be part of the police union. No clear response was given by the DOJ and City Officials, but the Police Union Attorney said yes. Interim Chief Harold Medina said he was “pro union”, he has worked with the union President and had no problem with Lieutenants and Sergeants being part of the collective bargaining unit.

Judge Browning asked the question if he could hold the Union in Contempt of Court and DOJ and City Officials gave no clear-cut answer while the Union Attorney said the union has not violated the collective bargaining contract. Judge Browning also raised the prospect of APD’s Internal Affairs Unit be abolished, but gave no inclination if that should be done.

COMMENTARY AND ANALYSIS

It is understood that “settlements” are preferred by the courts instead of aggressive litigation, hearings and trials. Notwithstanding, it is extremely disappointing that the City, APD and the Department of Justice (DOJ) essentially ignored and turned their backs on the citizens of Albuquerque, including victims of police misconduct, the amici groups and public stakeholders who they are supposed to be representing, in order to negotiate the creation of a “use of force investigation team”.

When it comes to government and law enforcement, settlements must include conferring with those who will be affected the most by those settlements. In criminal prosecutions for example, plea agreements are between the government and the defendant in the case. However, there is a “victims bill of rights” in New Mexico and prosecutors have a duty to confer with victims of the crime before agreeing to plea and disposition agreements and sentencing agreements approved by a Judge.

What the City, APD and DOJ have done is attempt to negotiate a stipulated order to create another level of bureaucracy with the creation of a “use of force team.” The DOJ is essentially throwing in the towel on forcing the city to do what is required under the CASA. The DOJ is giving APD another way out of a problem its management and the police union have created on their very own. After 6 years, there is still overt resistance to the consent decree by not assuming responsibility for investigating use of force and deadly force cases in a proper way.

TOO LATE FOR RECIEVERSHIP; GIVE FEDERAL MONITOR DIRECT AUTHORITY OVER APD

Forcing APD into receivership now and appointing a Special Master to take over APD with extensive powers to manage and operate the department on a day-to-day basis should have been done in the first place 6 years ago. It’s way too late now. The city has spent millions on the reform process, is spending even more and there is really no end in sight. Forcing APD into receivership at this point would be a waste of time, cause further delay and would be a reflection that the CASA has failed.

The CASA is a 112-page, federal court approved agreement with 344 paragraphs containing 271 mandated reforms. A link to the CASA is here:

http://documents.cabq.gov/police/reports/department-of-justice/465-second-amended-restated-casa.pdf

To be perfectly blunt, the CASA with all of its 271 mandated reforms and auditing requirements is a “law enforcement management nightmare”. The CASA has gone a long way to setting the city and APD up for failure because of its complexity and costly mandates, training requirements and personnel demands.

Paragraphs 294 and 295 of the CASA are worth noting:

A. Independent Monitor

294. The Parties will jointly select an Independent Monitor (“Monitor”) who will assess and report whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in high-level, quality service; officer safety and accountability; effective, constitutional policing; and increased community trust of APD.

295. The Monitor shall only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor shall not, and is not intended to, replace or assume the role and duties of APD, including the Chief or any other City official. The Monitor shall be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.

The Federal Monitor’s lack of authority over APD has contributed substantially to the problem of systematic failure of the CASA, especially having no authority to write policy and no authority to remove and appoint personnel and issue appropriate orders and commands to sworn personnel. One way of rectifying the situation is designating the Federal Monitor as a “Special Master” with limited management and control over APD including the authority to terminate, suspend, transfer employees and impose disciplinary action and write and implement executive orders for implementation. Dr. Ginger is more than capable of assuming such responsibilities given his success in other departments and his background.

COMPLICATING FACTORS

The single most remarkable understatement made during the entire one-day hearing was made by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew when he said:

“APD has proven over and over again its agility to avoid the requirements of the CASA.”

No kidding Sherlock! Notwithstanding his comment, Killebrew felt the “use of force” investigation team should be implemented even with the risk of APD continuing to avoid the CASA. The DOJ is seriously mistaken if it feels a use of force team, especially whose work is done remotely, will be able to avoid APD agility and resistance to the reforms.

For the past 6 years, the CASA has been plagued with inconsistencies, conflicts, and the political turmoil. In the last 6 years there have been 3 United States Attorneys General, 2 Federal Judges assigned to the case, 2 appointed New Mexico United States Attorneys, the City has elected 2 Mayors, there have been 3 police Chiefs, the court has called a “reset” of the process 3 years ago after the current Mayor was elected, the APD has undergone at least 3 reorganizations, the high command of Deputy Chiefs and Area Commanders has changed at least 3 times with reorganizations.

There have been only 3 consistent factors relating to the CASA: the reforms mandated by the CASA, the same federal monitor and resistance to the reforms by APD.

There are a number of factors that will complicate the enforcement the stipulated agreement being negotiated for creation of a use of force investigation team and for that reason the court should deny signing off on the stipulated order. Factors that must be taken to account are:

1. President Joe Biden will be sworn in on January 20 and a new U. S. Attorney General and new United States Attorney for New Mexico will likely soon follow within 6 months. The DOJ priorities will likely change and the DOJ commitment to the consent decree may be waning, which could be the reason for the proposed settlement.

2. The city is conducting a national search for a new chief of police and whoever is in fact hired will once again be subject to termination if a new Mayor is elected in less than 11 months on November 5, 2021. There is no doubt that APD, the failure of implementation of the CASA reforms and the City’s high crime rates will be front and center in the 2021 Mayor’s race.

3. The creation of a new use of force team is nothing more than creating another level of bureaucracy that will be costly. It will almost assuredly guarantee that the CASA will continue for any number of years and beyond the 6 years as was originally envisioned because APD will still have not learned to properly do use of force investigations.

4. It’s more likely than not APD management, the union and rank and file will continue with their efforts of “noncompliance”, not overtly, but in a manner to avoid detection and once again using “agility to avoid the requirements of the CASA.”

WHAT CAN BE DONE NOW

APD is a “para-military” organization and as such the “chain of command” must be honored and the lines of authority must not be blurred to the point where management and subordinates become one and the same for the purpose of enforcing policy and the CASA mandates. Allowing management positions to be part of employee bargaining unit is a recipe for disaster, which is exactly what has played out for the last 6 years with the Court Approved Settlement Agreement (CASA).

The current police union contract expired 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. Until a new union contract is negotiated and approved, the terms of the old contract are followed.

The Federal Court should order the City and the Union immediately back to the negotiating table to negotiate a new contract. The new contract needs to have provisions that will ensure that the CASA reforms are accomplished and do not conflict with the CASA reforms. New terms to include in the new contract are the following:

1. The City needs to move to make sergeants and lieutenants “at will employees” who can be terminated without cause. Sergeants and lieutenants need to be removed from the collective 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.

2. The APD Police Chief needs to be given authority to immediately terminate sworn police who are members of the union. As a condition of employment, union members would be subject to immediate “termination for cause and without any delay” for incidents and conduct that are clearly in violation APD standard operating procedures and violations of civil rights as found by the Chief of Police. Examples of conduct or incidents meriting immediate dismissal would be those captured by lapel camera video or citizen cell phones. Another reason for immediate termination would be insubordination and a finding by the Chief of deliberate resistance to the CASA reforms. The union contract can define and outline circumstances and situations the Chief can immediately terminate a member of the union. Immediate terminations by the Chief would be subject to appeal and due process before the City’s Personnel Board for affirmation of the termination or reinstatement of the officer.

The Police Union no doubt wants to continue the terms of the expired contract, including who is in the collective bargaining unit and drag out all disciplinary actions as long as possible. There is no real excuse to delay negotiations on the police union contract. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.

HOLD UNION IN CONTEMPT OF COURT AND DISMISS UNION AS PARTY

The City and the Department of Justice need to move for the dismissal of the police union from the federal court proceeding or file Motion for Contempt of Court against the union. In addition to numerous findings in all 11 past monitors reports, the Federal Monitor in his 12th Report identified 5 major areas of interference by the police union with the CASA:

1.“… [When] … Internal Affairs … allow union representatives … and … officers to respond to salient , and reasonable, fact-finding questions by simply reading a Garrity statement … into the record, as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors.”

2. APD Internal Affairs routinely permits officers and union representatives to hijack internal fact-finding.

3. “[There] are strong under currents of Counter-CASA effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.

4. Many of the instances of non-compliance seen in the field are a matter of “will not,” instead of “cannot”! The Monitor reports he see actions that transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership.”

5. Supervision, which includes Lieutenants and Sergeants in the union, “needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”

By intervening in the case, the union has now made itself a party to the lawsuit and subject to the jurisdiction of the court exposing itself to contempt proceedings for interference with the CASA reforms. Dismissal of the union from the case will allow APD command staff and management more authority do its job with enforcement of the CASA mandates and implementation of all 271 reforms. The police union should be designated by the court as an “amici” stakeholder but prohibited from participation of any negotiations related to the CASA policies.

ABOLISH APD INTERNAL AFFAIRS AND TURN OVER FUNCTIONS TO INPSPECTOR GENERAL, INTERNAL AUDIT AND HUMAN RESOURCES USE OF FORCE INVESTGATION TEAM

APD has consistently shown over decades it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice. The APD Internal Affairs Unit needs to be abolished and its functions absorbed by other civilian departments that already exist.

The stipulated order creating a “Use of Force Team” is clearly an attempt by the city and the DOJ to address the monitor’s complaint about how use-of-force cases are being investigated. Under the proposed order, the city will hire “external investigators” under city contract to take over use of force from Internal Affairs. The Force Review Board (FRB) , made up of APD top officials, that also reviews the use-of-force investigations will still exist and their conclusions will be used in part to determine whether the cases have been properly investigated. The Civilian Police Oversight Agency and its board will ultimately replace the federal monitor under the CASA and will review the board’s decisions.

The proposed stipulated order creating a “Use of Force Team” reflects a serious misunderstanding or ignorance of how the city operates and other existing departments and their functions. There really is no need to add an additional level of bureaucracy in the form of a “use of force” team. There are existing resources that could be used to do the work without the city giving up a “tremendous loss of sovereignty and self-direction by the city”.

The Mayor and the Chief Administrative Office have the authority to issue executive orders or executive communications (EC) for city council approval to abolish the APD Internal Affairs Unit and then create “use of force teams” as envisioned by the proposed order using existing city resources and departments that have been given extensive authority including the power to subpoena, gather evidence and conduct interviews and that already have investigators.

The responsibility of investigation of police misconduct cases including excessive use of force cases not resulting in death or serious bodily harm should be done by “civilian” personnel investigators and not sworn police. The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by police can be delegated by the Mayor and be assumed by the Office of Inspector General in conjunction with the Internal Audit Department and the City Human Resources Department. The Office of Inspector General, by city ordinance, is given specific authority to investigate city employee misconduct.

PROPOSED SUA SUPONTE ORDERS TO ENFORCE CASA

Immediate action needs to be taken to turn APD around. It’s action only the court can take at this time by issuing sua suponte orders. It is recommended that the federal court consider the following findings and issue orders as follows:

1. Find the Police Union in contempt of court for intentional interference or obstruction of the CASA identified by the Federal Court Monitor in all of the Monitor’s Reports as the “Counter CASA” effect and as a sanction impose a fine or an admonishment.

2. Find that APD Sergeants and Lieutenants are part of APD management and ineligible for membership in the union and became “at will” employees when the union contract expired on June 30, 2020 with the makeup of the collective bargaining unit to be renegotiated for contract renewal.

3. Dismiss the Union as an intervening party and prohibit the union from further participation in the litigation other than as a “friend of the court” like APD Forward and the Community Coalition.

4. Order the City and Police Union to commence and complete all contract negotiations to eliminate contract terms that are in conflict with the CASA and its enforcement. One term to be negotiated is to giving the APD Chief of Police authority to immediately terminate for cause and without any delay sworn police who are members of the police union for incidents and conduct that clearly violate APD standard operating procedures, violate civil rights and the use of deadly force.

5. Deny approval of the Stipulated Order between the City and the DOJ to create a Use of Force Investigation Team.

6. Enter orders granting the Federal Monitor specific management control and authority over APD personnel policies and procedures and standard operating procedures (SOPs) to implement the 271 CASA reforms to bring the department in compliance and giving the Federal Monitor the authority of a “special master.”

7. Order the City to abolish the APD Internal Affairs Division and have its functions assumed by the city’s Inspector General, Internal Audit and Human Resources Department.

8. Order the Mayor and the Chief Administrative Office to issue executive orders known as Executive Communications (EC) for City Council approval to abolish the APD Internal Affairs Unit, create “use of force teams” within the city consisting of representatives from the City’s Inspector General, Internal Audit and the Human Resources Departments.

CONCLUSION

After 6 years of work under the CASA, the city has a police department that is failing miserably to police itself and on the brink of catastrophic failure. The Federal Monitor also bears some responsibility and his repeated reporting on APD’s failures to implement the CASA reforms and complaining and lamenting over the “Counter Casa Effect” does not get the job done.

At this point in time, it is strongly recommended that the Federal Court take definitive action and issue appropriate court orders that are within its discretion to accomplish and enforce the terms and conditions of the CASA with the eventual dismissal of the case as the goal.

_______________________

POSTSCRIPT

SCATHING MONITOR’S REPORT

On November 2, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 12th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The link to the City web site with entire 12th Federal Monitor’s report is here:

http://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-twelfth-report-nov-2020.pdf

The 12th Monitors report was the most scathing of the reports filed to date. The monitor told the court during a separate October 6 hearing:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

With respect to APD’s use of force oversight, the monitor said in his 12th Report it was failing “system wide”:

“… [D] during the reporting period we encountered system-wide failures related to the oversight of force used by APD officers and supervisory and command review of those uses of force. The monitoring team has been critical of the Force Review Board (FRB), citing its past ineffectiveness and its failing to provide meaningful oversight for APD’s use of force system. The consequences are that APD’s FRB, and by extension APD itself, endorses questionable, and sometimes unlawful, conduct by its officers.

Convening an FRB serves several key purposes, chief among them is to create a forum for executive oversight that pushes department-level expectations down through all levels of supervision. … Of the cases … reviewed that were approved by the Force Review Board, the [monitoring team] saw:

-Instances where obvious uses of force went unreported and investigated
-Evidence of supervisory failures
-One instance of misconduct in which unjustified force was used on a handcuffed person who was likely suffering from a form of mental disability. …

What this means is simple: that after two years of conceptualizing, recasting, and implementing new use of force policies; delivering meaningful training of those policies; training IAFD personnel to properly investigate uses of force; putting a video review unit in place; exhaustive technical assistance from the monitoring team; and reconstituting the FRB under new policies and training; the system is still ineffective in providing oversight of uses of force.

During the … reporting period, APD continued to struggle to establish a system of force oversight and the accountability for officer conduct. These struggles have significant influence on the organization’s efforts to achieve Operational Compliance. Still evident are systemic failures that allow questionable uses of force and misconduct to survive without being addressed in any meaningful way.”

Regarding one disturbing use of force incident the Monitor reported:

“After six years of ‘reform’ at APD, after six years of acute and intensive technical assistance and assessment from the monitoring team, after six years of exhaustive (and critical) reports from the monitor; after six years of ‘effort,’ this knowable and egregious case floated through (several) levels of review at APD … (on-scene officers; on-scene supervisory personnel; ‘upstream’ area command supervisory and management personnel; video review unit personnel; IAFD; and FRB) and all … of those levels managed to ‘not see’ a clear and (convincing) incident of deliberate excessive use of force against an individual obviously suffering a crisis.”

The link to a related blog article on the 12th Federal Monitors Report is here:

12th Federal Monitor’s Report: APD “On The Brink Of Catastrophic Failure”; “Failing Miserably To Police Itself”; Police Union Obstructs Reforms; COMMENTARY: Remove Sergeants And Lieutenants From Union; Abolish APD Internal Affairs

On November 2, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 12th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The link to the City web site with entire 12th Federal Monitor’s report is here:

http://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-twelfth-report-nov-2020.pdf

On Friday, October 6, the Federal District Court Judge James Browning held a hearing on the 12th Federal Monitors Report. Normally, such a hearing is an all day long, in person hearing allowing the public to attend. As a result of the corona virus, the hearing was held “virtually” but because of technology difficulties, the public and the press were prevented from attending.

A transcript of the October 6 hearing reveals that Federal Court Appointed Monitor James Ginger told the court:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

CONTEMPT OF COURT AND RECIEVERSHIP SOUGHT

On Friday, November 4, another “virtual” public hearing will be held in federal court. In anticipation of the hearing, attorneys and advocacy groups have submitted letter to the Federal Judge who has been assigned the case. The attorneys include prominent Civil Rights Attorney Peter Cubra, NM State Representative Moe Maestas whose firm represents a group known as the Community Coalition.

Also submitting a letter to the court was ABQ Forward that advocates APD reform mandated by the Court Approved Settlement Agreement (CASA). APD Forward includes 19 organizations who have affiliated with each other in an effort to reform APD and implement the DOJ consent reforms. Members of APD Forward include Albuquerque Health Care for the Homeless, American Civil Liberties, Bernalillo County Community Health Council, Common Cause New Mexico, Disability Rights New Mexico, Equality New Mexico, League of Women Voters of Central New, Mexico New Mexico Conference of Churches, New Mexico Criminal Defense Lawyers Association, Sierra Club Rio Grande Chapter, and the Transgender Resource Center of New Mexico.

A link to the court document “Notice Letters From Amici and Casa Stakeholders Regarding Issues to be Addressed During December 4, 2020 Public Hearing” with the letters is here:

https://www.scribd.com/document/486597382/Amici-Stakeholders-letters#from_embed

The reform advocates, after six years under the consent decree, in their letters for the first time include a request that the Federal Court be far more aggressive with mandating the reforms. One letter goes as far as to asked for the city to be held in contempt. Mr. Cubra in his letter suggests a finding, based on the Twelfth Monitor’s Report, that the City and the Albuquerque Police Officers Association be held in civil contempt of Court.

APD Forward in its letter points out that the Federal Monitor reports several places he traces resistance to interference by the police officer’s union. APD Forward goes on to ask the question “Why is the Albuquerque Police Officers’ Association still included as a litigant in the CASA when they have been actively undermining reforms?” Mr. Maestas goes as far as to suggest that the city renegotiate the police union terms that are conflict with the CASA. If new union contract terms are negotiated, one term that needs to be negotiated is who are allowed in the bargaining unit.

Peter Simonson, speaking on behalf of the APD Forward coalition of advocacy organizations, said the group has considered asking before that the court to hold the city in contempt. It did so when the Mayor Berry Administration and then City Attorney Jessica Hernandez secretly recorded conversations with Independent Monitor James Ginger in an effort to show biasness on his part and have him removed from the case.

According to Simonson, the current situation under the Mayor Tim Keller Administration is now so desperate that putting APD under an outside receivership might be the only way for it to reform. Simonson put it this way:

“I don’t see a way out, and I don’t think APD Forward sees a way out for this reform to succeed. … It doesn’t seem to be an exit strategy. … Given the systemic nature of the problems that the monitor has identified, it seems to us that the situation is too dire to hope that the department and the city can pull together.”

Simonson, on behalf of APD Forward, also points out that the Federal Monitor has been raising red flags in several of his reports, but no action has been taken by the Department of Justice (DOJ). Both Simonson and Cubra said their frustrations extend beyond APD, the city and mayoral administrations. They said they are frustrated that the DOJ hasn’t already done more to make sure APD is complying with the settlement agreement.

Simonson put it this way:

“If they are going to be the legal representative of our community, we need them to stand up and react to these kinds of indications … That feels to me like this conversation should have started much earlier.”

Civil Rights Attorney Peter Cubra in his letter to Judge James Browning said that if the Court finds the city in contempt of court, he could appoint an administrator to oversee APD and give instructions to subordinates in the city government and said:

“That would be a receivership, where the agent of the court could act as the de facto police chief in order to get the existing agreed court order complied with.”

Cubra noted that the Keller Administration formulated new policies and procedures for investigating excessive use of force a couple of years ago and that those were implemented earlier this year. However, Cubra said systemic problems remain and added:

“Not only did this report find things are still out of compliance, but it found both city employees and union employees actively interfering with the implementation of the court order. … They got a second chance, and they blew it.”

A link to related news coverage and sources is here:

https://www.abqjournal.com/1522741/advocacy-groups-criticize-pace-of-police-reforms.html

MONITOR’S SCATHING ASSESSMENT AT “TOP OF ORANIZATION”

In the 12th Federal Monitors Report file with the Court on November 2, and covering the period of February 1, 2020 to July 31, 2020, Independent Monitor James Ginger wrote a scathing condemnation of APD’s ability to police itself and hold officers accountable when they improperly use force. Ginger wrote:

“APD’s compliance efforts have exhibited serious shortfalls during the … reporting period. These range from critical shortfalls in management and oversight of the APD Training Academy, significant and deleterious failures relating to oversight and discipline; and executive-level failures regarding oversight, command and control, discipline, supervision, and training.
…
Since the inception of this monitoring process in 2015, we have been as open and honest as possible with APD executive leadership and have never noted a problem at APD without following up with suggestions regarding how APD might best address that problem. At this stage of the process most of those discussions at the executive level have fallen on deaf ears. After six years of suggestions, recommendations, and problem-solving meetings, … as of the end of the … reporting period, much remains to be done.

To be perfectly clear, based on the monitor’s experience with these projects, [which] dates back to the 1990s, APD is on a path that reflects deliberate indifference to the requirements of the CASA. We highly recommend that the City take direct steps to put APD on an alternate trajectory regarding compliance efforts:

• APD’s new leadership, which assumed leadership responsibilities after the close of this reporting period, must step up and insist on compliance.

• Management needs to design simple, effective, trackable systems for process improvement.

• Supervision needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.

• Most importantly, line officers need to engage in actions as designed by policy, law, and best practice, not past customs.

Until these actions take place, compliance will be exceptionally evasive.”

MONITOR FINDS OVERSIGHT OF THE ”USE OF FORCE” INEFFECTIVE

The monitoring team was highly critical of APD’s Use of Force Board (UFB) and reported:

“… [D] during the reporting period we encountered system-wide failures related to the oversight of force used by APD officers and supervisory and command review of those uses of force. The monitoring team has been critical of the Force Review Board (FRB), citing its past ineffectiveness and its failing to provide meaningful oversight for APD’s use of force system. The consequences are that APD’s FRB, and by extension APD itself, endorses questionable, and sometimes unlawful, conduct by its officers.

Convening an FRB serves several key purposes, chief among them is to create a forum for executive oversight that pushes department-level expectations down through all levels of supervision. … Of the cases … reviewed that were approved by the Force Review Board, the [monitoring team] saw:

-Instances where obvious uses of force went unreported and investigated
-Evidence of supervisory failures
-One instance of misconduct in which unjustified force was used on a handcuffed person who was likely suffering from a form of mental disability. …

What this means is simple: that after two years of conceptualizing, recasting, and implementing new use of force policies; delivering meaningful training of those policies; training IAFD personnel to properly investigate uses of force; putting a video review unit in place; exhaustive technical assistance from the monitoring team; and reconstituting the FRB under new policies and training; the system is still ineffective in providing oversight of uses of force.

During the … reporting period, APD continued to struggle to establish a system of force oversight and the accountability for officer conduct. These struggles have significant influence on the organization’s efforts to achieve Operational Compliance. Still evident are systemic failures that allow questionable uses of force and misconduct to survive without being addressed in any meaningful way.”

Regarding one disturbing use of force incident the Monitor reported:

“After six years of ‘reform’ at APD, after six years of acute and intensive technical assistance and assessment from the monitoring team, after six years of exhaustive (and critical) reports from the monitor; after six years of ‘effort,’ this knowable and egregious case floated through (several) levels of review at APD … (on-scene officers; on-scene supervisory personnel; ‘upstream’ area command supervisory and management personnel; video review unit personnel; IAFD; and FRB) and all … of those levels managed to ‘not see’ a clear and (convincing) incident of deliberate excessive use of force against an individual obviously suffering a crisis.”

POLICE UNION “COUNTER CASA AFFECT” STILL PROBLEMATIC

The 12th Federal Monitors’ report contains a summary that highlights major deficiencies that have set back compliance levels. For at least the 4th time, the monitor reported that the “Counter Casa” effect was interfering with APD accomplishing the implementing the CASA reforms. The Federal Monitor has defined the Counter CASA effect as a group of high ranking APD sworn police officers including Sergeants and Lieutenants who resist the reforms. Sergeants and Lieutenants, although management, are allowed to be part of the police union and can only be terminated for cause.

According to the 12th report:

“[The federal monitor] identified strong under currents of Counter-CASA effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.”

During this reporting period, the monitoring team often found in its reviews of management and oversight practices, a near myopathy at APD when it comes to assessing actions in the field against the requirements of APD policy and the CASA. Supervisors and command level personnel have a deleterious tendency to ignore the requirements of policy and training, and at times to even support processes to hide or circumvent internal systems designed to ensure compliance to established policy.
…
When a major … CASA-critical command such as Internal Affairs can allow union representatives to hijack internal investigations and can allow officers to respond to salient , and reasonable, fact-finding questions by simply reading a … into the record [that they cannot be compelled to testify] as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors. “

The 12th Federal Monitor’s Report Highlights 5 major areas of union interference:

1.“… [When] … Internal Affairs … allow union representatives … and … officers to respond to salient , and reasonable, fact-finding questions by simply reading a Garrity statement … into the record, as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors.”

2. APD Internal Affairs routinely permits officers and union representatives to hijack internal fact-finding.

3. “[There] are strong under currents of Counter-CASA effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.

4. Many of the instances of non-compliance seen in the field are a matter of “will not,” instead of “cannot”! The Monitor reports he see actions that transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership.”

5. Supervision, which includes Lieutenants and Sergeants in the union, “needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”

COMMENTARY AND ANALYSIS

After 6 years, 2 Mayors, upwards of $30 Million spent and police union interference, hope springs eternal that the Federal Court and the Department of Justice will finally take aggressive action to deal with APD, including the APD Police Union. No one should hold their breath. Truth be known is that the stakeholders, the amici groups and the Federal Monitor have all been warned more than once over the years that they needed to be far more aggressive in demanding results from APD.

I TOLD YOU SO

When Federal Monitor James Ginger first arrived in Albuquerque over six years ago, he was warned in private in a meeting at the United States Attorney Office what would happen. Dr. Ginger was told in a blunt manner that APD would resist any and all efforts to reform and that what was needed was for APD be placed in receivership. Ginger was also told that the Internal Affairs should be abolished. Ginger was specifically told that after 4 years of the consent decree, APD and the city would be no better off than it was before he started. His response was it was not his job to tell APD what to do, he had no management nor control over APD and that all he could do was audit and report to the court. Now 6 years have passed and the department is no better off now than when the reforms began to be implemented.

On May 25, 2017, in a guest editorial column published by the Albuquerque Journal it was advocated that a Special Master be appointed to take over APD.

The column said the Department of Justice and the US Attorney should seek contempt of court and sanctions against the APD command staff for deliberate noncompliance with the Court Approved Settlement Agreement and seek appointment of a special master to take over APD.

Following are applicable portions of the guest column:

The Monitor complains the lack of scrutiny given by the department’s highest-ranking officer’s in use of force cases is “mystifying” and “startling”.

How many times does the Federal Monitor have to tell the Federal Court that APD is not complying with the federal court settlement order, has mislead the Court, before a “Motion for Contempt of Court” is filed seeking contempt of court sanctions and requesting a Special Master be appointed?.
…

The DOJ should seek “contempt of court” and sanctions against the APD command staff for “deliberate non-compliance” and seek appointment of a Special Master to take over APD.

The entire APD chain of command must be removed and replaced with a new generation of leadership and not from within the ranks of APD.

A national search must be conducted to identify and hire a new Chief of Police, hire new Deputy Chiefs and a new chain of command to assume control of APD.

The City Council can mandate civilian management over APD with a civilian Police Commissioner to assume responsibility for implementation of the DOJ reforms.

APD has repeatedly shown it cannot police itself and APD Internal Affairs should be abolished.

APD Internal Affairs functions to investigate police misconduct cases and use of force cases can be done without using sworn police.

The investigation of police misconduct cases and excessive use of force cases not resulting in death or nor serious bodily harm can be done by “civilian” personnel investigators.

The function and responsibility for investigating APD misconduct cases and violations of personnel policy and procedures can be assumed by the Office of Inspector General in conjunction with the City Human Resources Department and the Office of Internal Audit.

Until there is a change in the entire APD command staff, we can expect to continue to be “mystified” and “startled” by the lack of progress and “deliberate non-compliance” of the DOJ consent decree mandated reforms and the disappearance of the DOJ reforms into the black hole known as APD.

The entire APD chain of command must be removed and replaced with a new generation of leadership and not from within the ranks of APD.

The link to the full guest column is here:

https://www.abqjournal.com/1008291/apd-is-going-in-the-wrong-direction-on-reform.html

OTHER ARTICLES

There have been other published articles that have reported on the Federal Monitor’s reports, APD’s and the Police Union’s failure to comply with the consent decree and advocating what should be done. Dates, titles and links to those articles are here:

1. November 15, 2020 “ABQ Journal Editorial On 12th Federal Monitor’s Report Short On Identifying What Needs To Be Done With APD And The Reforms; Mayor Tim Keller Only Has Himself To Blame For Reform Failures”

https://www.petedinelli.com/2020/11/15/abq-journal-editorial-on-12th-federal-monitors-report-short-on-identifying-what-needs-to-be-done-with-apd-and-the-reforms-mayor-tim-keller-only-has-himself-to-blame-for-reform-failures/

2. November 9, 2020 “12th Federal Monitor’s Report: APD “On The Brink Of Catastrophic Failure”; “Failing Miserably To Police Itself”; Police Union Obstructs Reforms; COMMENTARY: Remove Sergeants And Lieutenants From Union; Abolish APD Internal Affairs.

https://www.petedinelli.com/2020/11/09/12th-federal-monitors-report-apd-on-the-brink-of-catastrophic-failure-failing-miserably-to-police-itself-police-union-obstructs-reforms-commentary-rem/

3. October 10, 2020 NY Times: “How Police Unions Became Such Powerful Opponents to Reform Efforts”; This Sounds WAAAY Too Familiar! Dismiss Police Union As Party To Federal Lawsuit”

https://www.petedinelli.com/2020/10/15/ny-times-how-police-unions-became-such-powerful-opponents-to-reform-efforts-this-sounds-waaay-to-familiar-dismiss-police-union-as-party-to-federal-lawsuit/

4. June 20, 2020 “Federal Judge Overrules APD Police Union Motion On “Use of Force” Policy; Union Needs To Get On Board With New Policy”

https://www.petedinelli.com/2020/06/25/federal-judge-overrules-apd-police-union-to-use-of-force-policy-union-needs-to-get-on-board-with-new-policy/

5. June 8, 2020 “ ‘Counter Casa Effect’ Impedes Both DOJ Reforms And “#8 Can’t Wait” Metrics”

https://www.petedinelli.com/2020/06/08/counter-casa-effect-impedes-both-doj-reforms-and-8-cant-wait-metrics/

6. May 6, 2020 “Federal Monitor Files 11th Compliance Audit Report Of APD Reforms; “Counter Casa Effect” Still Problematic; Order 100% Operational Compliance Within 6 Months Or Replace Chief Or Deputy Chiefs To Get Job Done”

https://www.petedinelli.com/2020/05/06/federal-monitor-files-11th-compliance-audit-report-of-apd-reforms-counter-casa-effect-still-problematic-order-100-operational-compliance-within-6-months-or-replace-chief-or-deput/

7. November 18, 2019 “Glossing Over Or Ignoring APD’s “Counter Casa Effect” Does Not Make Problem Go Away”

https://www.petedinelli.com/2019/11/08/glossing-over-or-ignoring-apds-counter-casa-effect-does-not-make-problem-go-away/

8. November 7, 2019 “10th Federal Monitor’s Compliance Report: “Counter Casa Effect” Alive and Well Within APD; Move To Dismiss Union From Case; Remove Sergeants and Lieutenants From Police Union”

https://www.petedinelli.com/2019/11/07/10th-federal-monitors-compliance-report-counter-casa-affect-alive-and-well-within-apd-remove-to-dismiss-union-from-case-remove-sergeants-and-lieutenants-from-police-unio/

9. August 23, 2019 “APOA Police Union Is “Counter CASA Effect” Within APD; Remove Sergeants and Lieutenants From Union; Kudos To APD Chief Michael Geier On Reforms”

https://www.petedinelli.com/2019/08/23/apoa-police-union-is-counter-casa-affect-within-apd-remove-sergeants-and-lieutenants-from-union-kudos-to-apd-chief-michael-geier-on-reforms/

10. August 19, 2019 “Convoluted Federal Monitors Third “Outcomes Measures and Analysis” Report Red Flag For Another $4 Million Contract; Trump DOJ Has All But Ended Federal Police Reform; Dismiss ABQ’s Consent Decree”

https://www.petedinelli.com/2019/08/19/convoluted-federal-monitors-third-outcomes-measures-and-analysis-report-red-flag-for-another-4-million-contract-trump-doj-has-all-but-ended-federal-police-reform-dismiss-abq/

WHAT NEEDS TO BE DONE

APD is a “para-military” organization and as such the “chain of command” must be honored and the lines of authority must not be blurred to the point where management and subordinates become one and the same for the purpose of enforcing policy. Allowing management positions to be part of employee bargaining unit is a recipe for disaster, which is exactly what is being played out with the Court Approved Settlement Agreement (CASA).

Sergeants and lieutenants need to be made at will employees and removed from the collective 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.

The current police union contract expired 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. The union contract negotiations must commence soon. Until a new union contract is negotiated and approved, the terms and conditions of the old contract will remain in effect.

The Police Union no doubt wants to continue the terms of the expired contract, including who is in the collective bargaining unit. There is no real excuse to delay negotiations on the police union contract. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.

Another option the City and the Department of Justice need to explore is to move for the dismissal of the police union from the federal court proceeding. This will allow APD command staff and management more authority do its job with enforcement of the CASA mandates and implementation of all 270 reforms.

ABOLISH APD INTERNAL AFFAIRS

Another option that needs to be considered is to abolish APD’s Internal Affairs Unit. APD has consistently shown over decades it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice. The APD Internal Affairs Unit needs to be abolished and its functions absorbed by other civilian departments.

The investigation of police misconduct cases including excessive use of force cases not resulting in death or serious bodily harm should be done by “civilian” personnel investigators, not sworn police. The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by police should be assumed by the Office of the General Council in conjunction with the City Human Resources Department.

The Office of Independent Council could make findings and recommendations to the APD Chief and Police Oversight Board (POB) for implementation and imposition of disciplinary action.

CONLUSION

After almost 3 years in office, Mayor Tim Keller under his leadership still has a police department that is failing miserably to police itself and on the brink of catastrophic failure. Keller has only himself to blame given the fact he personally selected those that have been in charge of APD and he went back on his campaign promise to hire a new Chief from outside the agency. The amici groups and the Federal Monitor also bear some responsibility and lamenting over what has happened does not get the job done.

After 6 years of work under the CASA, it is not at all likely the Federal Court will be inclined to place APD under a receivership. Nor is it likely that the Federal Monitor will want to do anything more than to continue with his audits and be paid even more than the $4.5 million he has already been paid. Also, in 2021, the municipal election for Mayor will be held and whatever changes made now may also be subject to another Mayor being elected.

For these reason, other options need to be implemented to compel APD to get the job done now. The City and the Department of Justice need to recognize that as long as the Police Union continues to be a party to the case and Sergeants and Lieutenants are allowed to be part of the collective bargaining unit, not much more is going to be accomplished. And neither is relying on the current interim Chief and Deputy Chiefs.

12th Federal Monitor’s Report: APD “On The Brink Of Catastrophic Failure”; “Failing Miserably To Police Itself”; Police Union Obstructs Reforms; COMMENTARY: Remove Sergeants And Lieutenants From Union; Abolish APD Internal Affairs