Senate Bill 277 (SB 277) referred to as “the Police Accountability Bill” is legislation sponsored by Senator Linda Lopez, and Representative Patricia Roybal Caballero. The bill would make major changes to law enforcement policies across the state. On February 24, a substitute SB 277 passed the Health and Public Affairs Committee and SB 277 is now awaiting a hearing in the Senate Judiciary Committee.
A link to the substitute legislation is here:
https://legiscan.com/NM/text/SB227/2021
Senate Bill 227 would impose stricter restrictions on when officers can use deadly force. New Mexico has ranked as the No. 1 state for deadly police shootings per capita. The website Mapping Police Violence reported there were 164 police shootings in the state between 2013 and 2020. According to Mapping Police Violence, New Mexico had the highest rate of police killings per one million people between January 2013 and December 2019. The link to the statistics is here:
https://mappingpoliceviolence.org/states
SB 211 would limit law enforcement from using force beyond the United States Supreme Court’s standard of when it is “objectively reasonable” and limit it to just those circumstances when it is proportionate and necessary to prevent imminent harm and only after de-escalation practices have been exhausted by a law enforcement officer. It will change the standard for use of force to “necessary,” ensuring that officers cannot use physical force upon another person unless the officer has exhausted de-escalation tactics and that such force is proportionate and necessary to prevent an imminent threat of harm to an identifiable person.
POLICE ACCOUNTABILITY BILL EXPLAINED
SB 211 is in sharp contrast to efforts to strengthen accountability for police misconduct as is the intent of the new New Mexico Civil Rights Act. The proposed civil rights act would create a new cause of action against all government and government employees for civil rights violations, prohibit qualified immunity and mandate judgments and damages be paid by the government entities.
Absent from the Civil Rights Act is any provision that would actually hold a government employee truly liable and accountable for damages they have caused another. There is no personal liability nor other types of penalties to hold the individual employee accountable for wrongful conduct and violations of civil rights and constitutional rights. Absent from the legislation is any preventative measures directed at the government employee or services such as training, expanded behavioral health services and decertification’s and terminations of the employee.
The ultimate goal of SB 227 is to prevent the use of excessive force and deadly force by police officers occurring in the first place. The police accountability bill prohibits the use of certain law enforcement practices and mandating the use of physical force by law enforcement as a last resort. Supporters of SB 211 argue that research shows that officers at departments with stricter use-of-force policies are less likely to kill others or be killed or seriously injured themselves.
SB 227 would establish a statewide database of incidents in which police seriously harm or kill someone. If it is passed into law, SB 227 would require local agencies to report the details of any police action involving force to the state Department of Public Safety, including measures officers used to deescalate tensions and whether the person injured or killed by officers showed any signs of mental impairment. Agencies would have to submit a report to the state within 30 days of an incident and post the report on their website for public access.
It would require agencies around the state to ban no-knock warrants and chokeholds. The bill as first introduced would bar police use of tear gas, rubber bullets, and canines which are classified under police policies as less lethal means of applying force.
The use of tear gas, rubber bullets, and canines have been misused in high-profile cases such as the 2014 killing of homeless camper James Boyd in the Sandia foothills by the APD swat unit. Notwithstanding, tear gas, rubber bullets, and canines are associated with lower rates of injury to suspects. Citing conversations with police officers, Senator Lopez introduced a revised bill that dropped the limitations on tear gas, rubber bullets, and canines.
The legislation would also require agencies to revise their training procedures to ensure officers learn how to handle crisis situations before turning to deadly force.
SB 227 follows police reform measures signed into law after a special session last year. One new law sets stricter body camera guidelines for officers, requiring them to keep their cameras recording at all times during encounters with the public. The recorded footage must kept by the agency for at least 120 days. A second law enacted after the special session established the New Mexico Civil Rights Commission, a nine-member panel tasked with making recommendations to the Legislature on reforms to address civil rights violations. A New Mexico Civil Rights Act was introduced, but was tabled.
Senator Linda Lopez said the bill would create consistency statewide and said about the need for the legislation:
“To make a change in a system, you have to get back to the root. … This legislation goes back to the basics, to where law enforcement officers are trained. If you have something in the law that says you can no longer use chokeholds, use rubber bullets, no longer use no-knock warrants, that changes the way that our law enforcement academics train future officers, which causes the system to change.”
APD USE OF FORCE PRICIPLES MANDATED OUTLINED
SB 277 is essentially and attempt to make the Albuquerque Police Department’s use of force principals applicable to virtually all law enforcement agencies in the State of New Mexico. The Albuquerque Police Department (APD) adopted use of force pricipals and policy last year. The use of force principals are mandated by the Federal Court Approved Settlement Agreement (CASA) that was entered into in 2014 by the City of Albuquerque after the US Department of Justice (DOJ) found a pattern of excessive use of force and deadly for by APD and a “culture of aggression” especially when dealing with the mentally ill.
The mandatory Use of Force Principals for APD sworn police merit review and are as follows:
“Use of force by … officers, regardless of the type of force, tactics, or weapon used, shall abide by the following requirements:
A) Officers shall use advisements, warnings, and verbal persuasion, when possible, before resorting to force.
B) Force shall be de-escalated immediately as resistance decreases.
C) Officers shall allow individuals time to submit to arrest before force is used whenever possible.
D) APD shall explicitly prohibit neck holds, except where lethal force is authorized.
E) APD shall explicitly prohibit using leg sweeps, arm-bar takedowns, or prone restraints, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons; to overcome active resistance; or as objectively reasonable where physical removal is necessary to overcome passive resistance and handcuff the subject
F) APD shall explicitly prohibit using force against persons in handcuffs, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons; to overcome active resistance; or as objectively reasonable where physical removal is necessary to overcome passive resistance.
G) Officers shall not use force to attempt to effect compliance with a command that is unlawful.
H) Pointing a firearm at a person shall be reported as a Level 1 use of force, and shall be done only as objectively reasonable to accomplish a lawful police objective; and
I) Immediately following a use of force, officers, and, upon arrival, a supervisor, shall inspect and observe subjects of force for injury or complaints of pain resulting from the use of force and immediately obtain any necessary medical care. This may require an officer to provide emergency first aid until professional medical care providers arrive on scene.”
See 13th Progress and Status Summary Report prepared by the APD Compliance and Oversight Division, Page 12:
https://documents.cabq.gov/police/reports/department-of-justice/thirteenth-apd-progress-report.pdf
ACLU TOP PRIORITY
Not surprising is the fact that SB 227 has been made of top priority of the New Mexico Chapter of the American Civil Liberties union. The ACLU has said that the bill reflects public sentiment, citing a poll it commissioned in December 2020. The poll found 72% of registered voters supportive of a law “to place clear limits on when force can be used and require that police try to use alternatives before resorting to force.”
Barron Jones, a senior policy analyst with the American Civil Liberties Union of New Mexico, said he believes Lopez’s bill is “hands down the strongest” police reform legislation in the country and had this to say:
“This has been a long time coming. … We hand over a lot of trust to law enforcement agencies throughout the state, and the public should be able to see and gauge how that department is doing when it comes to serving and protecting their constituents. ”
https://www.jurist.org/news/2021/02/new-mexico-state-senator-introduces-police-reform-bill/
LAW ENFORCEMENT UNIONS OPPOSE SB 227
SB 277 is strenuously opposed by law enforcement agencies and law enforcement unions, particularly the Albuquerque Police Officers (APOA) union and the New Mexico State Police Association.
Shaun Willoughby, president of the Albuquerque Police Officers’ Association said APD’s Use of Force Principals for APD sworn police have been “a disaster”. He criticized the legislators for failing to reach out to police in developing the proposal.
Willoughby sharply criticized SB 277 this way:
“Policing policy is not supposed to be legislated by people who are not police officers. … This is all from, basically, all of the nightmare that Albuquerque is going through. … Why would you want to do that to the rest of the state of New Mexico? It doesn’t work. … This is why your cops feel lack of support. … And if something like this should pass, we’re going to let the law enforcement community know, in a very abrupt fashion, that New Mexico is closed for law enforcement business. This isn’t where you come to be a successful cop. … And we might even open the avenues for our existing cops to go somewhere else.”
The New Mexico State Police Association also is opposed to the legislation. On February 4, just two days after the bill was introduced, New Mexico State Police officer Darion Jarrott was shot and killed by a man he had pulled over. It was the first fatal shooting of a State Police Officer officer in 30 years. The president of the New Mexico State Police Association Jose Carrasco posted video to Facebook entitled “Vote NO on SB 227” in which he criticized the bill for depriving officers of less lethal options for detaining suspects.
DOJ INVESTIGATION
When it comes to the APD, it is too easy to forget what brought the Department of Justice (DOJ) here in the first place and what resulted in the mandatory Use of Force Principals for APD sworn police which are now trying to be made mandatory to all law enforcement in the state with SB 277. For that reason the DOJ investigation and its finding merit review.
On April 10, 2014, the United States Department of Justice (DOJ), Civil Rights Division, submitted a scathing 46-page investigation report on an 18-month civil rights investigation of the Albuquerque Police Department (APD). The investigation was conducted jointly by the DOJ’s Washington Office Civil Rights Division and the United States Attorney’s Office for the District of New Mexico.
You can read the entire report here.
https://www.justice.gov/sites/default/files/crt/legacy/2014/04/10/apd_findings_4-10-14.pdf
The DOJ investigation included a comprehensive review of APD’s operations and the City’s oversight systems of APD. The DOJ investigation “determined that structural and systemic deficiencies — including insufficient oversight, inadequate training, and ineffective policies — contribute to the use of unreasonable force.”
Based on the investigation and the review of excessive use of force and deadly force cases, the DOJ found “reasonable cause to believe that APD engage[d] in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment … . and [the] investigation included a comprehensive review of APD’s operations and the City’s oversight systems.”
Federal civil rights laws make it unlawful for government entities, such as the City of Albuquerque and APD, to engage in a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution and laws of the United States.
The investigative report found a pattern or practice of use of “deadly force” or “excessive use of force” in 4 major areas:
1. The DOJ reviewed all fatal shootings by officers between 2009 and 2012 and found that officers were not justified under federal law in using deadly force in the majority of those incidents. Albuquerque police officers too often used deadly force in an unconstitutional manner in their use of firearms. Officers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force.
2. Albuquerque police officers often used less lethal force in an unconstitutional manner, often used unreasonable physical force without regard for the subject’s safety or the level of threat encountered. The investigation found APD Officers frequently used take-down procedures in ways that unnecessarily increased the harm to the person. Finally, APD officers escalated situations in which force could have been avoided had they instead used de-escalation measures.
3. A significant number of the use of force cases reviewed involved persons suffering from acute mental illness and who were in crisis. The investigation found APD’s policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved.
4. The investigation found the use of excessive force by APD officers was not isolated or sporadic. The pattern or practice of excessive force stemmed from systemic deficiencies in oversight, training, and policy. Chief among these deficiencies was the department’s failure to implement an objective and rigorous internal accountability system. Force incidents were not properly investigated, documented, or addressed with corrective measures by the command staff.
On November 10, 2014, the DOJ and the City of Albuquerque and APD entered into a 106-page negotiated Court Approved Settlement Agreement (APD) mandating 271 sweeping reforms of APD.
Major reform mandates under the settlement include:
1. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re writing and implement new use of force and deadly force policies.
2. The CASA mandates the teaching of “constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with the mentally ill.
3. The City agreed that APD would overhaul and rewrite all of its “use of force policies” and “deadly force” policies, recruitment procedures, training, internal affairs procedures and implement field supervision of officers.
4. Stricter training and restrictions on the use of nonlethal force is required.
5. More training and controls over the use of Tasers by officers along with quarterly audits of their use.
6. The agreement mandates that APD adopt a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented and outlining details how use of force cases would be investigated. It requires far more reporting by officers and field supervisors and also requires detailed reviews of those reports up the chain of command within the department.
7. Officers who point their firearms at a person, but don’t fire, must fill out a use of force report that will be reviewed by field supervisors. That review is separate from a city civilian police oversight agency that will be independent of the department and will review police use of force incidents as well as civilian complaints.
8. APD agreed to revise and update its policies on the mandatory use of lapel cameras by all police officers.
9. Certain types of hand-to-hand techniques are barred under the CASA unless the officer is in a situation that require the use of lethal force if it were available. Neck holds, sometimes called choke-holds, are explicitly forbidden to be used by officers except in situations where lethal force would be authorized.
10. A major change in the CASA bans APD officers from firing their weapons at moving vehicles in all but life-threatening situations.
COMMENTARY AND ANALYSIS
Opposition to legislation such as SB 277 by law enforcement is swimming against the tied of public outraged that was sparked by the killing of African American George Floyd by police. The Floyd death resulted in mass demonstrations across the United States in major cities and even globally.
VIGOROUS UNION OPPOSITION TO REFORMS
On June 6, 2020, the New York Times published a news article on line entitled “How Police Unions Became Such Powerful Opponents to Reform Efforts”. The New York Times article discusses that as demands for police reform have mounted across the country in the aftermath of police violence or shootings resulting in death, unions have emerged as significant roadblocks to police reforms and change.
According to the New York Times article, the greater the political pressure for police reform, the more defiant police unions become in resisting police reforms. The unions are aggressively protecting the rights of members accused of misconduct. The article reports that unions can be so effective at defending their members that cops with a pattern of abuse can be left untouched, ostensibly undisciplined and they remain on the force.
The New York Times article discusses the Baltimore, Maryland case where the city and the Justice Department (DOJ) reached a consent decree in 2017 to overhaul police conduct. The Baltimore Police union for its part described a police department in chaos, with severe staff shortages and low morale and those who remain said they feel unsupported by their commanders.
In other instances, the article discusses how unions have not resisted reforms outright, but have made them difficult to put in place. The New York Times reports that federal intervention is often one of the few reliable ways of reforming police departments. However, it was also reported that in Cleveland, the union helped slow the adoption of reforms mandated by a federal consent decree. Cleveland police union president at the time of the consent decree, said he and his colleagues saw some of the mandated rules as counterproductive.
The link to the entire New York Times article is here:
https://www.nytimes.com/2020/06/06/us/police-unions-minneapolis-kroll.html
CONCLUSION
Instead of resisting the reforms mandated by legislation embodied in SB 277, police unions should do what they can to embrace reform efforts in order to regain credibility with the public. Only then will law enforcement be free to fight crime absent violating people’s civil rights.
Notwithstanding, time is running out. On February 24, a substitute SB 277 passed the Health and Public Affairs Committee and SB 277 is now awaiting a hearing in the Senate Judiciary Committee. If it SB 277 dies in committee, Senator Linda Lopez has said she will not give up and introduce it in the 2022 New Mexico legislative session.