On May 3, 2021 the Federal Court Monitor filed with the Federal Court the 13th Independent Monitor’s Report (IMR-13 ) on the Court Approved Settlement Agreement. The report covers the time frame of August 2020 through January 2021.
SYNOPSIS OF FINDINGS CONTAINED IN THE 13TH IMR REPORT
Under the terms and conditions of the Court Approved Settlement Agreement, once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed.
The 3 compliance levels can be explained as follows:
1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.
2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.
3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.
COMPLIANCE LEVELS DETERIORATE
In the IMR-13 report, the Federal Monitor made the following findings on the 3 compliance levels:
Primary Compliance: 100%;
Secondary Compliance: 82%;
Operational Compliance: 59%.
Since the last report, IMR-12, the following changes in compliance levels are
noted:
Primary Compliance: No change at 100%
Secondary Compliance: A loss of 9.9%
Operational Compliance: A loss of 7.8%
All documents related to APD’s settlement agreement can be downloaded and reviewed at this city web site link:
https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement</a
Discipline
FOUR ALARMING FINDINGS
The 13th Federal Monitor’s report contains 4 very disturbing findings given that over 6 years has elapsed and millions spent on the reforms. To quote the IMR-13
1. MACHINATIONS TO AVOID DISCIPLINING OFFICERS
“At this point, the disciplinary system at APD routinely fails to follow its own written policy (guiding disciplinary matrices) and virtually decimates its disciplinary requirements in favor of refusals to recognize substantial policy violations, and instead, often sustaining minor related violations and ignoring more serious violations. In other cases, APD simply defies its own written guidance regarding discipline, for example implementing “discipline” well below that required by its own disciplinary matrix. Examples of these Counter-CASA processes include:
• Replacing a matrix-required 8–32-hour suspension with a written reprimand;
• Refusal to recognize repeat offenses (which by policy require enhanced penalties);
• Failure to consider “aggravating circumstances” in determining appropriate discipline, but nearly always considering “mitigating circumstances”;
• A virtual shutdown of investigations in IAFD, possibly delaying disciplinary action for use of force violations until discipline is “time-barred” by the union contract; and
• Charging lessor included policy violations, instead of the (often more fitting) more serious of the policy violations … .
In short, APD is willing to go through almost any machination to avoid disciplining officers who violate policy or supervisors who fail to note policy violations or fail to act on them in a timely manner.
Interestingly, we note this aversion to discipline does not seem to apply to civilian personnel, who are often subjected to maximum penalties for relatively minor violations.”
2. USE OF FORCE
“More importantly, it continues to be apparent that APD has not had and currently does not have an appetite for taking serious approaches to control excessive or unwarranted uses of force during its police operations in the field. Command and control practices regarding the use of force continue to be weak. APD continues to lack the ability to consistently “call the ball” on questionable uses of force, and at times is unable to “see” obvious violations of policy or procedure related to its officers’ use of force. We have consistently noted these issues in our highly detailed bi-annual monitoring reports, and each paragraph found not in compliance contains specific recommendations that APD could implement to reduce unwarranted uses of force.
Unfortunately, we find the need to continually make the same recommendations, often times over and over, as APD seems either unwilling or unable to effectively assess, identify, and remediate officers who over-use force. Again, this reporting period, we have made dozens of recommendations, many of them made multiple times in the past. After six years, while progress has been made, i.e., new policies and new training have been implemented, and the Force Review Board is demonstrating that is willing to stand for heightened scrutiny of cases of officer-use of force, there remains much to do.”
3. CLEAR AND DELIBERATE INDIFFERENCE AND IGNORING MONITOR’S RECOMMENDATIONS
“We do note, however, that in IMR-12 we made twelve recommendations for improvements to the IA functions at APD. Those twelve recommendations remain in IMR-13. This is a recurring problem with APD. The monitor includes dozens of recommendations in each monitor report. Unfortunately, in some areas of compliance, we are required to make the same recommendations over and over because APD simply fails to address these recommendations in any way and refuses to implement processes of their own designed to achieve a reduction in unwarranted use of force. For example, the ten recommendations we made regarding “fact-based discipline” in IMR-12 are repeated again in this monitor’s report. The same holds true for multiple paragraphs of our CASA analysis. We recommend, APD demurs, and we continue recommending change, without reciprocal effort by APD.”
“To the monitor, this constitutes clear evidence of deliberate indifference to the requirements of the CASA. Again, during this reporting period, we provided APD with highly detailed step-by-step recommendations regarding the use of force investigations and supervision at all levels of the department, among other critical issues. Despite this advice, APD has actually lost ground in its compliance efforts as it relates to training related to and operational implementation of the requirements of the CASA.”
4. CATASTROPHIC FAILURE IN TRAINING OVERSIGHT
This monitor’s report can be synopsized in a single sentence. Due to a catastrophic failure in training oversight this reporting period and similar failures at the supervisory and command levels of APD, the agency suffered a 9.9% point loss in compliance elements related to the training and supervisory functions at APD and a 7.8% loss in overall compliance …. Overall, there is an argument to be made that operational compliance rates have held relatively steady, at slightly less than 60 percent, since IMR-8, two and one-half years ago.
The most critical issues confronted by APD in its compliance efforts this reporting period are in training, supervision, and command oversight. As frequent readers of the monitor’s reports will note, supervision and oversight are two of the most important keys to full compliance.
… . As of the end of the 13th reporting period, APD has experienced a drop in compliance levels in both secondary (training) and operational (actions in the field) compliance. APD achieved primary compliance in 100 percent of the applicable paragraphs of the CASA. Primary compliance relates mostly to development and implementation of acceptable policies (conforming to national best practices).
APD is in 82% Secondary Compliance as of this reporting period, which means that effective follow-up mechanisms have been taken to ensure that APD personnel understand the requirements of promulgated policies, e.g., training, supervising, coaching, and implementing disciplinary processes to ensure APD personnel understand the policies as promulgated and are implementing them in the field. This Secondary Compliance figure represents a 9.9% reduction in Secondary Compliance from IMR-12 to IMR-13. Operational Compliance with the requirements of the CASA for the 13th reporting period has also fallen from 64% in IMR-12 to 59% in IMR-13. This means that 59% of the time, field personnel either perform tasks as required by the CASA or that when they fail, supervisory personnel note and correct in-field behavior that is not compliant with the requirements of the CASA.
… .
These declines in compliance levels come despite intensive and extensive and intensive “hands-on” guidance and advice from the monitoring team. The bottom line is somewhat shocking. Operational compliance levels for the 13th reporting period are lower than the compliance figures for the 9th reporting period. Obviously, operational compliance is the most important of the three compliance levels.
POLICE UNION’S POLITICAL PUBLIC RELATONS CAMPAIGN TO DISPARAGE DOJ REFORMS
On April 26, the Albuquerque Police Officers Association (APOA) launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing officers from doing their jobs and combating crime. The Police Union leaders acknowledge that the city is bound by Federal Court Order but the union claims city leaders still have the ability, within that agreement, to object to and resist policies and procedures that they do not believe work for APD.
The Police Union political ad campaign is at odds as to what the Union Attorneys have told the Federal Judge assigned the case and overseeing the reforms. The Police Union political ad campaign consists of billboards around the city and testimonials on TV, radio and social media from former Albuquerque Police Department officers. The public relations campaign is urging the public to tell city leaders that crime matters more than the Police reforms mandated by the settlement.
The public relations campaign includes providing an email template for the public to use in support of APD and to contact civic leaders. The template says APD has made progress with the DOJ mandated reforms and says:
“[We are] tired of living in a city filled with murder, theft and violence. … I’m urging you to fight for this city, stand up to the DOJ, and help us save the city we love, before it’s too late. ”
APOA Police Union President Shaun Willoughby described the need for the public relations campaign this way:
“You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both. We think it’s time that our city leaders hear from the public that crime matters more because it does. … They want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight. … This conversation of reform needs to come back to common sense. … Right now, the City of Albuquerque capitulates to everything the DOJ wants and that might not necessarily be the right direction for the City of Albuquerque. … You don’t need enemies when you have friends like the city attorney. … We believe that our community deserves better from this police department. … We believe our community deserves better from this consent decree process.
[We are asking] for the city of Albuquerque to stand up and support Albuquerque police officers and support common sense reforms that allow our officers to succeed. … . We’re talking about the bureaucracy of police officers being taken off the street because somebody that was not used force on said ‘ow”. And how that impacts this community, our ability to respond to the community and this community’s ability to control crime. Your Albuquerque police officers are terrified that they will lose their job for simply doing their job and it’s not fair.”
Links to the new sources for the quotes are here:
https://www.abqjournal.com/2384284/apd-union-launches-campaign-against-doj-oversight.html
The APOA is also using its FACEBOOK page to promote their ad campaign. On April 26, the Police Union posted on FACEBOOK:
“Are you tired of the growing crime problems facing the city of Albuquerque? Are you tired of break-ins, stolen cars, vandalism, theft and murder being part of everyday living in our community? Then do something! If you don’t speak up and get involved right now, things will get worse. Tell your City leaders that you care more about fighting crime then than wasting millions on endless Department of Justice oversight. Share and make your voices heard because crime matters more.”
https://www.facebook.com/nmapoa
This is not the first time the police union has tried to undercut the reform process. In a February 11 Target 7 news report Shaun Willoughby, President of the Albuquerque Police Officers’ Association said:
“The whole [reform effort] system is set up to fail and the taxpayers and the people that live in this community like me and my family are the ones that are taking the brunt of [violent crime]. … Really look at this process. … It is absolutely out of control. … The entire department and the processes within it are out of control. Your officers are running out the door. Really look at every single state or agency that’s been involved in this process. … What is happening? Did it bring harmony and trust with the community? I don’t think so.”
TWO POLICE UNION ATTORNEYS TELL THE FEDERAL JUDGE OPPOSITE NARRATIVE THAN THE APD UNION AD CAMPAIGN DURING COURT HEARINGS
The Court Approved Settlement Agreement mandates 271 police reforms that APD is still struggling to implement after 6 years and millions spent. The most recent 13th Federal Monitors report released finds that APD is deteriorating further in not achieving the mandatory compliance levels. The police union is blaming the Court Approved Settlement Agreement (CASA) and its mandated reforms for the city’s high crime rates in Albuquerque.
The APD police union employs two highly experience and respected trial attorneys to represent them in union negotiations, personnel hearings and federal court proceedings relating to the Court Approved Settlement Agreement (CASA) Order. Police union attorneys Fred Mower and John D’Amato both have been practicing law for decades, not only in State District Court but in Federal Court.
Prior to the Police Union’s April 26 announcement of its $70,000 public relations campaign to disparage the CASA, there were two federal court hearings presided over by Judge James Browning in the case. Police Union Attorney Fred Mower represented the police union in a February 26, 2021 hearing for the approval of a court order. Police Union Attorney John D’Amato represented the union in the April 15, 2021 Status Conference hearing in the case.
FEBRAURY 26 HEARING TO APPROVE EXTERNAL FORCE INVESTIGATION TEAM
On Friday, February 26, U.S. District Judge James Browning held a hearing and approve a Stipulated Order between the city of Albuquerque and the DOJ to create an External Force Investigation Team (EFIT).
The EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the approved order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.
During the February 26 hearing, Judge Browning asked the APD Police Union Attorney Fred Mower if the Court Approved Settlement Agreement (CASA) order was causing the city’s high crime rates in the following manner on pages 44, 45 and 46 of the transcript:
JUDGE BROWNING:
“… All right. Let me ask you, Mr. Mowrer, you were very careful both in your issues and concerns and then your motion opposing the joint motion not to get into this area, but I have watched Mr. Willoughby’s comments publicly, and I think they’ve been most pronounced by Nancy Laflin on Channel 7, that the consent decree and then, in addition, this additional layer that we are laying on top with the EFIT is contributing or even a primary or major cause of the rise of crime in the community. Is that the position of the police association or your views, that that’s the reason that crime is rising is because of this consent decree or this EFIT?” [Editor’s emphasis added.]
POLICE UNION ATTORNEY FRED MOWER:
“Well, Your Honor, I think to simplistically state it like that, no. I don’t think the APOA can take the position that this consent decree that’s gone on, as Mr. Killebrew has indicated, going on seven years now, and the monies, the millions of dollars that have been spent, and now this new proposal with unidentified costs is a driver of what the crime rate is happening in this town. … I can’t say, and I don’t think it’s easy to prove that the money being spent here is what’s driving crime in Albuquerque. I think we’re like a lot of major cities. We’re facing dynamics because of just the city, closeness to cartel issues, closeness to issues concerning violent crime in a lot of major cities. [Editor’s emphasis added.]
JUDGE BROWNING:
Well, that was going to be my next question. You hang around with a lot of policeman in a lot of courtrooms. What do you think the cause of the rise of crime in Albuquerque and particularly violent crime is? … What’s your thoughts … as to why we’re having a rise in crime here? [Editor’s emphasis added.]
POLICE UNION ATTORNEY FRED MOWER:
“Your Honor, as I’ve kind of indicated, I believe in fairness to all. There are multiple factors. I would say that the last one you just raised is an issue; that there is — the lack of bail bonds and quick release of individuals who are accused of violent crimes is contributing. I think the access and lack of control of arms, weapons, is a problem. I think that — and I hate to go this broad, but, Your Honor, I think there is a breakdown in our society in some ways of our morals, discipline, and control which is contributing. I think the proclivity of drugs present in the city of Albuquerque is contributing to this. There is a factor of mental illness in the city of Albuquerque. There are — I know you’ve seen, Your Honor, as you drive the city streets a lot of homeless people downtown. And all big cities have this problem. But I think there are multiple, multiple factors that are contributing to this, and that’s just a very short list. … ” [Editor’s emphasis added.]
CITY ATTORNEY’S POSITION
During the February 26 hearing, Albuquerque City Attorney Esteban Aguilar, Jr. addressed the EFIT and the accusation that the consent decree was causing an increase in crime. The comments can be found on pages 51 to 57 of the transcript:
JUDGE BROWNING:
… Let me get the City’s response. And Mr. Aguilar, I may have overlooked you earlier. You may have wanted to talk some about the overview of the process contemplated by the proposed stipulated order. But if you want to contribute to that, let me let you do that now. And also, if you … want to give a response, which I think is largely to the APOA, but you may want to say something about other things that have been raised this afternoon.
CITY ATTORNEY ESTEBAN ANGEL AGUILAR, Jr.:
Thank you, Your Honor. And if it pleases the Court, the City doesn’t disagree with the data. I think we’ve been very clear, the data that was reflected that showed the failings with our internal affairs review processes as well as 3 other areas. What this plan does is, it accomplishes a couple of things.
One, it establishes a framework for developing and limiting a process for our officers who are currently doing this work to be able to utilize. They’re going to be walking in, or step by step with those officers throughout those investigations. They’re going to be on site in the field. I think a lot of confusion or to the extent that we have heard that there are confusing expectations regarding the quality of their work, confusion regarding what is expected of those folks under the CASA, those will be cleared up. I think, additionally, it provides an additional layer for transparency for the work that 17 the monitoring team is doing.
I want to be sensitive to the comments that we hear publicly that consent decrees add or increase crime in a particular area and that monitors in general have their own financial incentive for changing the bar or prolonging the process. That isn’t happening right now. You know, I want to be very clear that we do not see that happening. What we see are issues with the review process. [Editor’s emphasis added.]
As I’ve indicated before, especially to members of the community, the monitor and his team are officers of the Court and we would expect that they will continue to interact with the parties and with the Court with a duty of candor as officers of the Court. If that were not to be the case and we were to find information that would reflect an ulterior motive or an improper motive, we would address that with our partners. That isn’t going on right now. The cost of this process in general is large. We totally understand that.
I want to push back slightly on the narrative that we’ve been in this for six years. The consent decree has been in place for six years, or a good portion of the beginning phases of that. The APD had not bought in and was not, in my view, taking steps to fully and faithfully execute its obligations under that agreement. [Editor’s emphasis added.]
…
At this moment in time, I don’t think that we can afford not to make this investment. That is difficult, especially from the policyholder — the 10 policymakers, elected officials, these are very hard decisions. What I will say is that the steps that this department are taking — and to be clear, the vast majority of the women and men of the Albuquerque Police Department have bought into these concepts. Safety, constitutional community-based policing, and this consent decree are not mutually exclusive. They’re doing incredible work. [Editor’s emphasis added.]
… .
This [EFIT] isn’t a permanent fix. I understand Mr. Mowrer and their union, their perspective and their concerns, but these are not permanent positions, and at this moment in time since those individuals are not performing the work that is required, we have to come in and do a hard refit. Because if we don’t, at this moment in time we’re going to lose all the progress that we have been gaining. [Editor’s emphasis added.]
This is a hard process. This is not a Band-Aid approach. What this department is doing is taking the initiative to actually develop systems that will be a model for the country. It is hard, though. We are at the hardest stages of this process and that is where we are working on developing processes, implementing discipline in a way that is fair and consistent, because that’s how culture changes.
… .
… When the results of the data were coming out of the internal affairs division following the implementation of the new use of force policy, there were huge problems. This is designed to, one, address those problems, but also implement a system that will be lasting and sustained past the CASA.
Because one of the other consistent things that we heard about the EFIT plan from all of the members of the community is a concern that once an officer tests out, that they will revert back to those old ways. That can happen. But in order to avoid that, the department has to do this themselves. It’s a habitual change. … fundamental habitual changes are hard. We’re going to have missteps, but at the end of the day, they’re going to be healthier, but it’s not easy and it’s hard work. We have to stay on top of it and the department is going to continue to do that. [Editor’s emphasis added.]
But we also understand that everyone has their own perspective and concerns on the cost. But if we don’t take this action now and invest this money in this department, we’re going to lose ground in the community, and I’m concerned about, frankly, the message that might send to the officers in the department who are doing the right thing.
JUDGE BROWNING:
Anything else, Mr. Aguilar? (Page 57)
CITY ATTORNEY ESTEBAN AGUILAR, Jr.:
Your Honor, I don’t.
APRIL 15, 2021 STAUS CONFERENCE HEARING
On April 15, Judge Browning convened a Status Conference hearing to get a progress report on the implementation of the External Force Investigation Team (EFIT).
The following exchange occurred between Judge Browning and police union attorney John D’Amato as reflected in the court transcript of the proceeding, pages 34 to 38:
JUDGE BROWNING:
… Mr. D’Amato, do you wish to speak on the update of the implementation of the EFIT?
POLICE UNION ATTORNEY D’AMATO:
“Thank you, Your Honor. … We don’t have enough information; the Albuquerque Police Officers Association does not have as complete information as does the City or DOJ. But what we have seen causes us a little bit of concern. The obvious concern is bringing a civilian force in.
The secondary concern goes back to our original complaint, when you and I first spoke about the use of force policy. The APOA believes the force policy is a Gordian knot. People have said that CASA is rising crime. CASA is not. CASA is not the problem, Your Honor. [Editor’s emphasis added.]
The City’s response to the strictures of CASA have gotten so convoluted, it’s hard to teach. It’s hard to investigate. It contains so much subjectivity. The second level of this EFIT, I hope they’re not held to the same standard that Internal Affairs Force Division is.
And from my personal experience representing officers through that process, it’s a zero-tolerance policy. I don’t see a successful resolution a year from now, given that standard. [Editor’s emphasis added.] Chief Medina tells me he needs more time. And there is not one person in this room, Your Honor, or on this virtual meeting whose heart is not into this process.
The Albuquerque Police Officers Association isn’t contra CASA. What we are is a representation of those sergeants that the City Attorney Aguilar spoke of … [Emphasis added.] It’s the Field Services Bureau that go out and try to go with what the academy taught them to do. That’s it.
The internal affairs investigators are facing discipline because of deficient investigations, after which a review shows that they have had zero training on investigation. So, I’m hopeful. I believe in my heart that the folks before you a year from now will be successful. I truly hope that. The APOA wishes that to happen. They want a safe community.
And I believe Chief Medina when he said he wants law and order in this community. But until we simplify, until we make things more palatable and edible, in smaller chunks and in simpler terms, you can have two civilian units come in, three, four, five, given the way the City has interpreted the CASA has caused inordinate delay.” [Editor’s emphasis added.]
JUDGE BROWNING:
Do you have a specific on that or is it back to the excessive force policy that you argued last year and that I wrote the opinion on? Is that it?
POLICE UNION ATTORNEY D’AMATO:
Well, Your Honor, as I remember that conversation you had and I had, the APOA had to take a hit in moving on that section of policy. As I said, there was internal debate.
From the beginning, we wanted to contest the entire suite. But better practice dictated “Be cooperative, be a partner, work with the City, try to make this thing work.” And despite our concerns both on the application of the use of force and expansion, as well as the internal force investigators, I raised that point back then that there would be problems with the investigators. Why? Unclear policies, confusing directives, and lack of training. [Emphasis added.]
Underlying all of this is staffing issues. But I think if we had 1200 officers, the way we sit right now, it’s not working, Judge. But I’ll give Chief Medina and Deputy Director Stanley, who I’ve known for 30 years, the time that they’re asking for, because I believe that they believe it’s going to work.
JUDGE BROWNING:
If CASA is not the cause of the rise in crime, what do you — as somebody who has your ears close to the rank-and-file officers, what do you think is causing the rise of crime in our community? [Emphasis added.]
UNION ATTORNEY D’AMATO:
I think Mr. Mowrer at the last court hearing indicated the CASA was not the problem. I concur with that initial assessment. But when the city officials looked at the CASA, and they had a political mindset to implement through various protocols and policies, that’s the problem. [Editor’s emphasis added.]
The CASA, in and of itself, Your Honor, is essential. Department of Justice would not have come back in here in 2014 and frivolously said Albuquerque had a problem. Albuquerque had a problem. [Editor’s emphasis added.]
And may I sidebar just a second, just a side note. When Chief Medina was in the shooting, I commend the City of Albuquerque from the time of the shooting until today, to refocus an investment in mental health. And folks like the special CIT units, and the ECIT, and the training in those areas, and the mental health professionals that are on board today didn’t exist in 2002.
So to speculate on various outcomes, I believe, whenever an officer is involved in a shooting, no matter what the result, whether it’s a fatal or critically injuring, that reinforcing in that officer’s mind the sanctity of life. So I believe in some distorted sort of way that experience is making Chief Medina a better chief.
JUDGE BROWNING:
All right. Anything else you’d like to say to the Court?
POLICE UNION ATTORNEY D’AMATO:
No, Your Honor.
… .
During the April 15 hearing, City Attorney Esteban Aguilar, Jr. requested to address the Court to take issue with Police Union Attorney D’Amato, with the following comments reflected on pages 61 to 66 of the hearing transcript:
CITY ATTORNEY ESTEBAN AGUILAR, JR:
Your Honor, if I may, before we move on, I would like to, if it pleases the Court to address a few of the comments that were made.
JUDGE BROWNING:
All right. Go ahead, Mr. Aguilar.
CITY ATTORNEY ESTEBAN AGUILAR, Jr.:
Thank you, Your Honor. And I apologize, I’ll try to be brief, but I want to vehemently disagree with some of the comments made by Mr. D’Amato.
I think that comments unsupported by data that simply the fact that we have the CASA in place and we have rising crime rates, that there is a tangential connection, unsupported by data, are dangerous, misleading to the public and to the Court. And frankly, it funnels into that false narrative that we hear that gives officers who may not want to comply with the higher degrees of protocols that we’re requiring these officers, or that the department — by the way, the department itself is requiring and holding itself to those standards — it provides them with the ability to obstruct or to violate policies. [Editor’s emphasis added.]
And the real issue, I think is as we stress, and as Mr. Mowrer stressed at the last proceeding: There are multiple factors that lead to a rise in crime. CASA isn’t one of them. Constitutional community-based policing and fighting crime are not mutually exclusive. I think it’s clear from some of the comments that this may be an attempt to reargue or relitigate the use of force policy suite. That’s simply not the case. We’re not there. [Editor’s emphasis added.]
The vast majority of the officers, the men and women of the Albuquerque Police Department are doing everything they can to not only address crime in our community, but also to do so by fully complying with the CASA. As I stressed the last time we had our hearing, my predecessors in the prior city administration did not faithfully execute this Court’s order.
These obligations are not political moves. These aren’t — it’s not a box to be checking. What these are, in the steps of this department is taking to limit these policies are to comply this Court’s lawfully entered order, which is the CASA. Yes, it’s a settlement agreement, but it’s also a lawful order by the court.
What is clear from the data, and that we know from other jurisdictions, is that constitutional community-based policing objectives, which include de-escalation techniques, lead to not only better outcomes for members of our community; it leads to better outcomes and increased safety for our officers and the people on the streets, as well as it prolongs the longevity of their careers. [Editor’s emphasis added.]
What is difficult is learning a new way to do things. And I want to be sensitive to that. That’s a point that I in artfully made at the last proceeding. These officers — while I may have tried to alluded to a “diet,” what these officers are doing is learning a whole new way of interacting with the world in which they live. They are on the front lines again in a very dangerous time, keeping all of media, whether it’s in our community, that are misleading and unsupported by data. And I have made clear that the safety of our officers is the top priority.
Yes, we want to make sure that we are doing so and engaging in constitutional practices. But we have stressed to the Union and to its members that — and to counsel — that if there are provisions that pose unnecessary risk or operational challenges due to gaps, to let us know so we can work together with the partners at the Department of Justice and the members of the monitoring team to revise those policies so that they can be implemented in way that provides, not only for the safety of our officers, but members of the community as well. [Editor’s emphasis added.]
And so I would be remiss if I did not fully address that, Your Honor, because I think it’s dangerous. And I think that comments like that, if they’re going to be made, they need to be supported by data because it leads to confusion, and it also funnels into the distrust with members of the community and our police department. [Editor’s emphasis added.]
And that is something that is — we’re at the critical stage where we cannot and will not engage in anecdotes that are unsupported by facts, particularly at this momentum time where we are all trying to move forward for the betterment of our community. So thank you, Your Honor. [Editor’s emphasis added.]
JUDGE BROWNING:
Thank you, Mr. Aguilar. Mr. D’Amato, anything you want to say on that subject?
POLICE UNION ATTORNEY D’AMATO:
Well, Your Honor, thank you for the opportunity to respond. I believe I would refer the viewers and the listeners to those cities with either consent decrees or settlement agreements and draw their own conclusions. This isn’t the forum where Mr. Aguilar and I get to debate. But I would be most happy to take him up on a debate to show him simply how out of touch he is with Field Services Bureau and what the officers are experiencing. That’s all I have. Thank you. [Editor’s emphasis added.]
APD POLICE UNION PARTY TO FEDERAL LAWSUIT AND UNION MEMBERS ARE COUNTER CASA EFFECT
Soon after the entry of the CASA on November 10, 2014, the police union intervened in the lawsuit and became a third party to the case to advocate police union interest in city policy. The police union has been at the negotiating table for 6 years over the “use of force” and “deadly force policies” and even filed and objection with the court to those policies that the court denied. The Police Union officers and their lawyers have sat in the court room during all the hearings. It was the police union that was a major contributing cause for a full one-year delay in writing the new use of force and deadly force policies. At one point, the Federal Monitor noted told the Court that 51 changes were demanded that had to be addressed.
It was on September 10, 2018, at a status telephone conference call held with the Federal Judge assigned the case that Federal Monitor Dr. James Ginger first told the federal judge that a group of “high-ranking APD officers” within the department were trying to thwart reform efforts.
The Federal Monitor revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants. Because sergeants and lieutenants are part of the police bargaining unit they remained in their positions and could not be removed by the APD Chief. Federal Monitor Ginger referred to the group as the “counter-CASA effect.” Ginger described the group’s attitude as “certainly ambivalent” to the reform effort and the CASA. According to the transcript of the proceeding, Dr. Ginger told the Judge:
“The ones I’m speaking of are in critical areas and that ambivalence, alone, will give rise to exactly the sort of issues that we’ve seen in the past at the training academy. … So while it’s not overt, you know, there’s nobody sabotaging computer files or that sort of thing, it’s a sort of a low-level processing, but nonetheless, it has an effect. … It’s a small group, but it’s a widespread collection of sworn personnel at sergeant’s and lieutenant’s levels with civil service protection that appear to be, based on my knowledge and experience, not completely committed to this process … It is something that is deep-seated and it’s a little harder to find a quick fix or solution to it, but I think, in the long term, by having this foundation with new leadership and a new direction from the top down, we should be able to get through this and survive it.” [Editor’s emphasis added.]
The entire 53-page transcript of the conference call can be read here:
https://drive.google.com/file/d/1GzUumHhiD3Mw2_dLg_czXml_T6-3QI2w/view
The 10th Federal Monitor’s report provided specific examples where APD, after 4 years of implementing the reforms, are still resisting the reform effort.
“Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example:
• Sergeants assessed during this reporting period were “0 for 5” in some routine aspects of CASA-required field inspections;
• Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met; and
• Spin up of “new” FRB processes will require persistent and candid review, assessment, oversight and support at the field level. “
On November 2, 2020, the Federal Court Appointed Monitor said for at least the 4th time in his reports that the “Counter Casa” effect was interfering with APD accomplishing the implementing the CASA reforms. 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.
… 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.
“APD’s compliance efforts have exhibited serious shortfalls during the … reporting period. These range from critical shortfalls in management and oversight … significant and deleterious failures relating to oversight and discipline; and executive-level failures regarding oversight, command and control, discipline, supervision, and training.” [Editor’s emphasis added.]
POLICE UNION CONTRACT PROVISIONS
The contract negotiated by Keller Administration with the Albuquerque Police Officers Association (APOA) was for the time period of July 7, 2018 to June 30, 2020 and therefor expired on July 1, 2020. Despite the expiration, the terms remain in effect until a new contract is negotiated.
The 65-page APOA police “Collective Bargaining Agreement” (CBA) can be down loaded as a PDF file at this link:
https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view
Three sections of the police union contract are worth noting. Those sections are:
Recognition
“ 1.3.1 The APOA is recognized as the Exclusive Representative for regular full time, non-probationary police officers through the rank of Lieutenants in the APD … . [Editor’s emphasis added.]
1.3.2. The City of Albuquerque extends to the Albuquerque Police Officers’ Association representing such unit of employees the following rights:
1.3.2.1 To represent the employees in negotiations and in the settlement of grievances;
1.3.2.3 To exclusive representation status during the term of this agreement as provided in the Employee Relations Ordinance;
…
2.5 The City and the APOA recognize the necessity to collaborate on issues that arise as a result of the Department of Justice’s (DOJ) investigation and proposals related to the findings of the DOJ regarding the Albuquerque Police Department. If the City anticipates the implementation of policies or directives related to its agreement discussions with the DOJ that impacts Officers’ terms or conditions of employment, the City will notify the APOA of its anticipated changes and provide APOA the opportunity to meet and confer with the City in a timely manner on the anticipated changes. The commitment will not prevent the APOA from submitting the changes for negotiations when the parties negotiate a successor collective bargaining agreement. [Editor’s emphasis added.]
… .
Under the union contract the APOA is recognized as the exclusive representative for regular full time, non-probationary police officers through the rank of Lieutenants in APD. This means the ranks of Sergeants, Master Police Officer, Senior Police Officers, Patrol Officers First Class, and all Detectives are included in the bargaining unit. Approximately 16 years ago, the positions of APD Captains, who are now called Area Commanders, were included in the bargaining unit until the City demanded their removal from the union in that they are management.
POLICE UNION CONTRACT VIOLATES NEW MEXICO PUBLIC EMPLOYEES BARGANING ACT
The New Mexico Public Employees Bargaining Act, Sections 10-7E-1 to 10-7E-26 H (NMSA 1978), governs the enforcement of the city’s collective bargaining agreement with the APD police union. The link to the statute is here:
https://www.pelrb.state.nm.us/statute.php
The sections on the “rights of employees”, “rights of employers, ” and “impasse resolutions are worth noting:
Section 10-7E-5 provides for the rights of public employees:
“Public employees, other than management employees and confidential employees, may form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees without interference, restraint or coercion and shall have the right to refuse any such activities.”
The link to Section 10-7E-5 is here:
https://www.pelrb.state.nm.us/pdf/statutes/10-7E-5_Rights%20of%20public%20employees.pdf
The Public Employees Bargaining Act is very clear that “management employees” are strictly prohibited from joining the police union. Lieutenants and Sergeants are management positions, yet the City has allowed APD Lieutenants and Sergeants to be part of the collective bargaining unit and has done so for years.
COMMENTARY AND ANALYSIS
It is disingenuous for the APD Police Union to say that the union is not trying to get the city to end the reform process, especially 7 months before the November 2, 2021 municipal election where Mayor Tim Keller is seeking a second term.
Four years ago, the police union endorsed Keller and the union is now saying it does not know who it will be endorsing this year. Sources have confirmed many of the union members and police union advocates are advising and supporting Sheriff Manny Gonzalez for Mayor with a few working on his campaign. There is little doubt that once again APD and the union are attempting to run out the clock on another Mayor, this time the Keller Administration, knowing full well the municipal election is on November 2, 2021.
UNION SHOULD TELL IT TO THE JUDGE
Once the Police Union became a party to the Federal lawsuit, it agreed to subject itself to the jurisdiction of the Federal Court and all the rules of the Federal Court. To a limited degree, all parties to any Federal Court action lose rights of free speech in order to protect the proceedings and the courts obligation to be fair and impartial and not be subject to political pressures. “Gag orders” are a commonly used by the courts on parties to prevent parties from discussing cases outside of the courtroom, especially with the media.
A major mistake the union has now made is that as a party to the lawsuit it should be taking its grievances to the Federal Court. The police union has no business talking and taking their grievances to the “court of public opinion” by undertaking a $70,000 political ad campaign that the other two parties, the city and the DOJ, cannot respond to any false claims.
Both the union attorneys are more than capable of filing pleadings in support or opposition of the CASA, have union membership present evidence under oath to the Judge and make argument in a court of law as to how the CASA reforms should be changed. The union attorneys could file any number of motions including a Motion To Dismiss The Case For Substantial Compliance, A Motion To Modify The Terms And Conditions Of The CASA, a Motion For And Order To APD To Rewrite Disciplinary Rules On Use of Force Reports.
Instead of taking their grievances to the Federal Judge, the union is expending an astonishing $70,000 for a political ad campaign. What the police may have bought with their $70,000 is a Contempt Proceeding for interference with a court order in a case that they are a party. No one knows if the Union attorneys had anything to do with the ad campaign or if they approved of it, but it’s not likely they did, especially with the Union spending $70,000 to disparage a Federal Court order.
UNION MEMBERSHIP HAS CONTRIBUTED TO APD NOT REACHING OPERATIONAL COMPLIANCE
The biggest failure made clear in Federal Court Monitor’s 12th report filed on November 2, and now the 13th report relates to “Operational Compliance”. Operational Compliance is defined as “managements adherence and enforcement to APD policies in the day-to-day operation of APD” . Operational compliance is where line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and upper command staff. In other words, APD “owns” and enforces its own policies and without expecting the Federal Monitor to do it for them.
SYNOPSIS OF FINDINGS CONTAINED IN THE 13TH IMR REPORT
Under the terms and conditions of the Court Approved Settlement Agreement, once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. On May 3, the Federal Court Monitor released the 13th Independent Monitor’s Report (IMR-13 ) .APD’s compliance levels merit repeating:
Primary Compliance: 100%;
Secondary Compliance: 82%;
Operational Compliance: 59%.
Since the last report, IMR-12, the following changes in compliance levels are
noted:
Primary Compliance: No change at 100%
Secondary Compliance: A loss of 9.9%
Operational Compliance: A loss of 7.8%
It is not at all farfetched to conclude that the Police Union knew exactly what the Federal Monitor was going to report, and hence they started their $70,000 ad campaign.
All documents related to APD’s settlement agreement can be downloaded and reviewed at this city web site link:
https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement
SARGEANTS AND LIEUTANTS ARE MANAGEMENT AND UION
APD police sergeants and lieutenants, who are management but allowed to be part of the police union, are on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies. They are where the “rubber meets the road” when it comes to police reforms.
The point that has been repeatedly made by the Federal Monitor is that “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. In other words, without the 100% support of the sergeants and lieutenants to the CASA mandated reforms, there will be little or no progress made with police reforms.
Only until APD becomes in complete compliance will APD be able to fight crime without violating people’s civil rights and thereby allow the dismissal of the DOJ consent decree. One thing for certain is that only APD management, the police union and all APD police officers can make the consent decree actually work and have the court dismiss it sooner rather than later.
SEEK SANCTIONS AGAINST UNION FOR CONTEMPT OF COURT
Federal Judge James Browning has scheduled for June 9 a day long hearing on the Federal Monitor’s 13 report. Before the June 9 hearing, the City of Albuquerque and the Department of Justice need to file a Motion for Contempt of Court, either individually or jointly, and seek sanctions against the APOA Union for intentional interference with the Court Approved Settlement Order with its $70,000 political ad campaign and the CASA reforms.
Three sanctions the city and the DOJ should seek are:
1. The removal of all APD Sergeants and Lieutenants from the bargaining unit.
2. Seek to dismiss the APOA Union as a Third Party to the federal lawsuit.
3. Issue a “gag order” to the Police Union officials and allow the Union Attorneys to do their jobs in a court of law without constant public comments from the Police Union officials on the settlement.
Otherwise, the disruptive nonsense of the union will continue as it attempts to disrupt the APD reform process mandated by the Court Approved Settlement Agreement (CASA).