On April 27, 2021, it was widely reported by local news media that 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 police officers from doing their jobs and combating crime.
POLICE UNION POLITICAL PUBLIC RELATONS CAMPAIGN
The Police Union political ad campaign consisted 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 people to use and contact civic leaders. The template says APD has made progress with the 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.”
The APOA also used its FACEBOOK page to get the word out with one post saying:
“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.”
This is not the first time the police union has attempted 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.”
Links to news sources quotes are here:
https://www.abqjournal.com/2384284/apd-union-launches-campaign-against-doj-oversight.html
https://www.koat.com/article/as-murder-rate-climbs-apd-union-launches-campaign/36257496
https://news.yahoo.com/apd-union-launches-campaign-against-040100177.html
13th INDEPENDENT MONITOR’S REPORT
On May 3, 2021 the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 13th compliance report of APD. The report covers the time frame of August 2020 through January 2021. The 13th Federal Monitor’s report was extremely damaging. 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
On October 20, 2020, Federal Monitor James Ginger had this to say about APD and his 12th Independent Monitors Report:
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.”
In his 13th Independent Monitors Report, the federal monitor wrote:
“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.”
…
“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. …”
“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.
… 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.”
JUNE 9 STATUS CONFERENCE
On May 28, 2021, Federal District Court Judge James Browning scheduled a Status Conference for June 9 on the Court Appointed Monitor’s 13th IME report. As has been the case for the last year during the pandemic, the hearing will be held via Zoom Video/Web Conferencing. Previous hearings have had upwards of 75 attending.
On May 28, the Department of Justice (DOJ) in accordance with its established practice in this case, filed “Notice Letters from the Court’s Amici And Stakeholders” established or recognized by the Court-Approved Settlement Agreement (CASA) . The letters set forth the issues and concerns the parties wish to address with the Court during the June 9, 2021 Public Hearing.
Seven ‘Notice Letters’ were filed with the court by the DOJ:
1. May 25, 2021 Notice Letter of CASA Stakeholder Mental Health Response Advisory Committee (MHRAC). Exhibit A.
2. May 26, 2021 Notice Letter of Amicus McClendon Sub-Class singed by attorney Peter Cubra. Exhibit B
3. May 26, 2021 Notice Letter of CASA Stakeholder Northwest Community Policing Council Council signed by Eric Jackson Chair, Northwest Community Policing Council Exhibits C-1.
4. May 26, 2021 Notice Letter of the NE Community Policing Council, Northeast Area Command signed by Vicki Williams (Chair) on behalf of the members of the NE Community Policing Council . Exhibit C-2.
5. May 26, 2021 Notice Letter of Amicus APD Forward Coalition signed by ACLU Executive Director Peter Simonson and Gary Housepian, Executive Director, Disability Rights NM. Exhibit D
6. May 26, 2021 Notice Letter of CASA Stakeholder Civilian Police Oversight Agency (CPOA) and Board signed by Edward Harness, Director Civilian Police Oversight Agency and Eric Olivas, Chair
Civilian Police Oversight Agency Board. Exhibit E.
7. The May 26, 2021 Notice Letter of Amicus Community Coalition, signed by private attorney and State Representative Moe Maestas with Alfred Matheson and Stephen Torrez. Exhibit F.
OBJECTIONS AND CONCERNS RAISED
Three of the Notice Letters raised significant concerns over the $70,000 Police Union’s public relations campaign. Those letters are from the following:
1. APD Forward
2. Albuquerque Community Policing Councils
3. Community Coalition
APD Forward includes 18 organizations who have affiliated with each other in an effort to reform APD and implement the DOJ consent decree terms and reforms. APD Forward is one of the main stakeholders who appear during the federal court hearings on the CASA. Members of APD Forward include:
Albuquerque Health Care for the Homeless
American Civil Liberties Union of New Mexico
Bernalillo County Community Health Council
Coalition to Stop Violence Against Native Women
Common Cause New Mexico
Disability Rights New Mexico
El Centro de Igualdad y Derechos
Episcopal Diocese of the Rio Grande
Equality New Mexico
La Mesa Presbyterian Church
League of Women Voters of Central New Mexico
National Association of Social Workers – New Mexico Chapter
Native American Voters Alliance
New Mexico Conference of Churches
New Mexico Criminal Defense Lawyers Association
Sierra Club Rio Grande Chapter
Street Safe New Mexico
Strong Families New Mexico
Transgender Resource Center of New Mexico.
APD FORWARD
The APD Forward “Notice Letter” is signed by Peter Simonson, Executive Director, ACLU of New Mexico and by Gary Housepian, Executive Director, Disability Rights NM on behalf of the member organizations. The relevant paragraphs of the May 26, 2021 notice letter regarding the police union ad campaign state as follows:
“APOA CAMPAIGN
Added to our sense of alarm about the Monitor’s findings is our complete consternation over the APOA’s ill-named “Crime Matters More” campaign. [Foot Note 3:] “Ill-named” because it is an obvious rejoinder to Black Lives Matter, suggesting that concerns about crime are more important than the lives of Black people. The purpose of this campaign is evidently to convince the people of Albuquerque that the CASA not only “ties officers’ hands” from doing their jobs, but indeed is responsible for the recent spike in violent crime in Albuquerque. The campaign urges Albuquerqueans to, “Tell City leaders that you care more about fighting crime than wasting millions on endless DOJ oversight.”
It is our understanding that, as an intervenor, the APOA has been granted formal party status in U.S.A. v. City of Albuquerque. What are the legal and ethical implications of one party intentionally generating political pressure to convince another party to withdraw from the CASA? The APOA’s actions are clearly intended to frustrate the function of the Court. To our understanding, that is “Ill-named” because it is an obvious rejoinder to Black Lives Matter, suggesting that concerns about crime are more important than the lives of Black people. APD Forward calls on the DOJ to move for sanctions against APOA and put an end to its undue pressure campaign.
THE CASA AND CRIME IN ALBUQUERQUE
Contrary to APOA’s claims, APD Forward believes that the reforms taking place under the CASA will only enhance APD’s ability to protect the people of Albuquerque from crime. If APD officers are not professional or committed enough to conduct proper investigations of use of force, chances are they are just as careless or incompetent when it comes to investigations of crime. The reluctance to hold officers accountable for violations of use of force policies surely stretches into all other areas of policy, including, for example, the way officers interview witnesses, conduct searches, and collect and tag evidence. The subject of CASA reforms may be use of force, but at the end of the day, the CASA is aimed at professionalizing the entire police department. The CASA is good for public safety. We would encourage the City to echo that message.”
Exhibit D, Case 1:14-cv-01025-JB-SMV Document 812-5 Filed 05/28/21, 5 pages
ALBUQUERQUE COMMUNITY POLICING COUNCILS
The May 26, 2021 Albuquerque Community Policing Council’s “Notice Letter” is signed by Eric Jackson Chair, Northwest Community Policing Council and it states in part as follows:
“I would like to also state the concern of some CPC members with the Albuquerque Police Officers Association (APOA) “#CrimeMatters” campaign. This campaign is inappropriate and undermines the work of the CPCs to educate the public on the requirements of the Court Appointed Settlement Agreement (CASA) and the reforms that APD has undertaken to satisfy the CASA. The CPCs continue to work to build bridges between the community and APD despite the misinformation from the APOA through this campaign.”
EXHIBIT C-1, Case 1:14-cv-01025-JB-SMV Document 812-5 Filed 05/28/21 Page 2.
COMMUNITY COALITION
The Community Coalition is an array of interested parties who have been very involved and were instrumental in bringing the Department of Justice (DOJ) to the city to investigate APD’s use of force, deadly force and the culture of aggression found by the DOJ. The Community Coalition is represented by Albuquerque private attorney and Democrat New Mexico State Representative Moe Maestas, Albuquerque.
In the May 26, 2021 Notice Letter of Amicus Community Coalition, the coalition states in part as to the police unions ad campaign:
“We further note that the Albuquerque Police Officers Association (APOA) has embarked upon a public relations campaign attacking the CASA. “Crime Matters More” the billboard say. The campaign in attempting to gain public pressure to lift APD from under the CASA implies that fighting crime matters more than constitutional policing. Shortly after the announcement of the campaign, APOA received national attention as an example of police union resistance to police reform. Nicole Dungca and Jenn Abelson, “When communities try to hold police accountable, law enforcement fights back, April 27, 2021.” The link to the Washington Post article is here:
The community Coalition join other amici in expressing concern about the campaign and the commitment of APOA to full compliance with CASA and transformation to a culture of constitutional policing. We believe that APOA as an intervenor comes dangerously close to contempt of court. We urge APOA to not merely support the CASA but to assume a leadership role in attaining full compliance with it thereby achieving the cultural transformation.
Exhibit F, Case 1:14-cv-01025-JB-SMV Document 812-7 Filed 05/28/21, 7 pages.
THE 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
Section 10-7E-5 outlines what public employees can form and be part of unions as follows:
“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 statute is very clear that “management employees” are prohibited from joining the police union. APD Lieutenants and Sergeants are management yet the city has allowed them to be part of the collective bargaining unit in violation of state law.
COMMENTARY AND ANALYSIS
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 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 has 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.
APD has been struggling for over 6 years with trying to implement the DOJ consent decree reforms. After six years and millions spent, APD still has a long way to go to be compliant under the settlement before the case can be dismissed. The police union and rank and file have essentially done whatever they could do, and at different times, to interfere with the reform efforts.
Peter Simonson, executive director of the American Civil Liberties Union of New Mexico and a member of “APD Forward” had this to say about the police unions political ad campaign when it first was reported on:
“The only unfortunate thing is that so far the department has failed to demonstrate that it can hold officers accountable when they violate internal policies and the union bears a portion of the blame for that… . They have found ways to undermine various measures that are required under the consent decree and they have found ways to undermine accountability itself. This is just another example of that.”
ORDER TO SHOW CAUSE HEARING NEEDED WITH TESTIMONY UNDER OATH
A major mistake the union has made is that as a party to the lawsuit it should be taking its grievances to the Federal Court, and not the “court of public opinion”. Both the union attorneys are more than capable of filing pleadings in support or opposition of the CASA, present evidence under oath to the Judge and make argument in a court of law as to how the CASA reforms should be changed.
No doubt, the police union believes that their $70,000 ad campaign is within their First Amendment right of free speech. That would be the case if the union were not a party to the federal lawsuit. 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.
With the $70,000 ad campaign, a “Motion For An Order To Show Cause” is appropriate to be filed against the police union for it to show cause why it should not be held in contempt of court for intentional interference with the Court Approved Settlement Agreement (CASA). APD police union officials need to be placed under oath so that full disclosure can be made to the public on any number of issues involving the ad campaign including:
Who reviewed and approved the $70,000 ad campaign as to content?
Were the police union attorneys notified of the ad campaign or did they approve it?
Was the ad campaign approved by the police union membership?
What was the source of revenue of the $70,000 and did it come from union membership, union dues or private donors?
Did the Union leadership or members solicit private donations from the public on city time or use city resources to do so?
Did the $70,000 come from a national police organization or political party or those business who utilize Chief’s Overtime?
Disclose to the Court and public the full list of donors for the ad campaign.
Disclose the full list of those contacted directly by the union to solicit letters of support.
Listing of all expenditures made for the ad campaign, including production time, advertisement air time on the TV News stations and paid for by the union
APPROPRIATE SANCTIONS
The biggest failure made clear in Federal Court Monitor’s 12th and 13th reports relate 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.
APD police sergeants and lieutenants, who are management but allowed to be part of the police union in violation of state statutes, 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 with the CASA and the mandated reforms 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.
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 political ad campaign and disparaging the CASA reforms. If not, the Federal Court could act sua sponte at the June 9 status conference hearing and fully demand an explanation from the police union.
Two sanctions that are in order are:
Remove APD Sergeants and Lieutenants from the bargaining unit.
Dismiss the APOA Union as a Third Party to the federal lawsuit.
Otherwise, the disruptive nonsense of the union will continue in defiance of the Federal Court Approved Settlement Agreement.
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