I write to Your Honor as a member of the Albuquerque community having witnessed years of effort to reform the Albuquerque Police Department (“APD”) and its policies, training, and operations into a model of constitutional policing. My perspective is defined by being an attorney having spent the bulk of my legal career defending hundreds of indigent criminal defendants in San Antonio, Texas and here in Albuquerque. I am also father to two young children and husband to an Albuquerque native with a vested interest in seeing APD become the most effective version of itself.

I also consider that my view of the police reform project is an informed one because I served in the City of Albuquerque’s (“City”) Legal Department as an Assistant City Attorney dealing solely with the City’s effort to comport with the Court Approved Settlement Agreement (“CASA”) with the United States of America (collectively “the Parties”). I worked in this role from August 2016 to April 2019. During that time, I provided daily assistance to APD personnel in meeting the requirements of the CASA as scrutinized by the Independent Monitor through policy, training, and operational refinement of the Department. I also assisted the City in drafting revisions to the First Amended and Restated CASA to entail a three-level force reporting system, with the Internal Affairs-Force Division (“IAFD”) and field supervisors reviewing and investigating Level l, 2 and 3 force applications.

When I left the City, I was working most closely with the newly created IAFD as it developed and refined the approach and systems to investigate use of force incidents. I spent many hours interacting with swom personnel, the Independent Monitor and attorneys working with the United States Department of Justice Civil Rights Division-Special Litigation Section (“USDOJ-Special Litig.”). I now work in a regional law firm practicing civil defense and I also represent individual APD officers in administrative and criminal investigations.

I understand that the Independent Monitor’s Thirteenth Report (“IMR-13”) is soon to be filed with the Court, and I hope that this letter will assist Your Honor in appreciating the reliability of this Report as it assesses the City’s attainment of compliance with the CASA. This letter will explain the methodological deficiencies I perceive to exist in the approach to monitoring the Albuquerque police reform project. I viewed these concerns when I was working on the project and believe that, while there is robust documentation and discussion of the faults and failings of APD personnel, there has never been thoughtful dialogue or even meaningful comprehension of the process by which the Independent Monitor is determining compliance with the CASA.

It is notable that there has never been any probative consideration of the accuracy of reporting by the Independent Monitor, especially since there are important foundational documents explaining and delineating the monitoring process, i.e., the Monitor’s Proposal, the Methodology (or “Monitor’s Manual”), and certain CASA related Paragraphs.

1. The Independent Monitor’s Proposal to the City and USDOJ Civil Rights-Special Litigation Section (“Proposal”).

This document was submitted by Public Management Resources, Inc. (“PMR”) to the USDOJ-Special Litig. and the City in response to the Parties request for information from individuals (and teams) wanting to be considered for the role of independent monitor for Albuquerque’s police reform project. See, “Response to Request for Information, City of Albuquerque and the United States Department of Justice Civil Rights Division-Special Litigation Section, by Public Management Resources, Inc.”, December 12, 2014 at https://wwwjustice.sov/usaondlfilel76426lldovtnload, hereinafter referred to as “Exhibit A”.

While the Proposal has never been incorporated into the CASA, reading this document, one should expect that the “three overriding principles” of monitored reform were intended by the Independent Monitor to influence the expectations and trajectory of the reform effort

(l) consensus around measurable and quantifiable objective outcomes;

(2) a monitoring process that is clear and definable; and

(3) ample opportunity to review draft Independent Monitor’s Reports (“IMR”) leads to gain full investment in a “consensus-based” and “data-based” final product.

See, Exhibit A, pg. 1. The Independent Monitor considers the vetting of draft reports (3) as how Your Honor and the community should expect to receive the “most accurate, realistic and meaningful report possible”. Id. pg. 3.

2. Dr. Ginger’s Monitoring Methodology.

As required by the CASA, and anticipated by the Proposal, the Independent Monitor created the monitoring Methodology as a paragraph-by-paragraph quantitative and qualitative description of compliance with corresponding data sources to assess the same. See, “Appendix One (Methodology) to Monitor’s First Report, Compliance Levels of the Albuquerque Police Department and the City of Albuquerque with Requirements of the Court Approved Settlement Agreement”, November23,2015; see also, Exhibit A,pg2.

On July 30, 2019, the Parties filed a Second Amended and Restated Court Approved Settlement Agreement, by which wholesale changes were made to the previous use of force reporting and investigation construct of APD. See, Doc. 465 (delineating the amendments to the First Amended and Restated Court Approved Settlement Agreement); see also Doc 465-1. With this filing, the Parties defined use of force along a continuum of 1-3 while also expressing that the Force Investigation Section within IAFD would conduct Level 2 and Level 3 force investigations, and supervisors are to review Level 1 force applications. See, Doc. 465-1, paragraphs 48(a)-(c), paragraphs 50-59 and paragraphs 60-77.

The Methodology has not been amended by the Independent Monitor to reflect these drastic changes to the police reform project, and no representative of an Amici group, lawyer for the City, or lawyer for USDOJ-Special Litig. has ever raised this as an apparent concern in using this tool to continue measuring the attainment of compliance with the CASA. Despite this shortcoming, and in the face of the CASA amendments nearly two years ago, the Independent Monitor continues to cite to and purportedly apply the obsolete Methodology as the means to measure compliance.

3. CASA Paragraphs 300(a) & (b).

As part of the monitoring and reporting expectations of the CASA, and within three months of his appointment, the Independent Monitor should have provided the City “a methodology for reviewing serious use of force investigations,” as well as “clearly delineating the requirements of this Agreement to be assessed for compliance, indicating which requirements will be assessed together”. (see, CASA, paragraph 300(a) and (b).

[FEDERAL MONITOR FAILS TO MET REQUIREMENTS]

I understand that the Independent Monitor has never met either of the noted requirements, and this impacts the ability for Your Honor to understand the cascading impact of certain paragraphs falling out of compliance. The utility of explaining a methodology for assessing any use of force investigation cannot be overstated given that “[y]ou can’t get anyone to agree about any of this”, and recent tumult across the country relative to police use of force exemplifies that an independent monitor of a police reform effort must be able to lend definition and veracity to a method assessing use of force incidents. Without this guidance, assessment of use of force investigations is undefined, arbitrary, and seemingly without a discernible end to criticism. Thus, the importance of a clear, understandable, and consensus-based methodology for reviewing use of force investigations cannot be overstated in the context of this project.

Each of these provisions must intend to give shape to the contours of effective reform that is identifiable to Your Honor, APD and the community. However, and as discussed more fully below, the Independent Monitor fails to live up to the expectations of the Proposal, the Methodology, and the CASA with each IMR filed with the Court and reported to the community. What was intended to be a consensus driven, transparent and clear process, by the Independent Monitor’s own definition, has become an amorphous and rudderless police reform project.

It may be that the random nature of the monitoring process should have been apparent to anyone reading the Independent Monitor’s First Report, when despite the Independent Monitor appending a Methodology comprised of almost purely quantitative measures of compliance, and pledging allegiance to it as the rubric by which to measure reform, the following definition of “operational compliance” was spelled out for the first time:

“Operational Compliance: Operational compliance is attained at the point that the adherence to policies is apparent [emphasis added] in the day-to-day operation of the agency, e.g., line personnel are routinely [emphasis added] held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely [emphasis added] held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” [emphasis added] and enforces [emphasis added] its policies.”

This language is not in the Methodology, the CASA, or any other formative document related to the police reform effort, because such subjective, non-quantitative rhetoric is like saying, “I know it when I see it”. Such an undefined supposition of “operational compliance” is eerily akin to the Supreme Court fumbling to define obscenity; however, this definition is unanticipated by the Methodology, antithetical to the Proposal, and it should not suffice to be the measure to assess APD’s attainment of constitutional policing. Even further, without the Independent Monitor supplying a transparent, clear, and consensus-based definition of compliance, the City, APD, and the community may never see an end to a police reform effort that is growing increasingly like an experiment gone awry.

I. The Independent Monitor’s Proposal to the City.

In the Proposal, the Independent Monitor laid out the foundational expectations for the Parties and a community considering the appropriate trajectory of a police reform effort. The Independent Monitor explained these characteristics to be

(1) consensus around outcomes,
(2) a clear, definable, and quantifiable monitoring process and
(3) the full investment of the Parties through independent monitoring reports that are vetted through the Parties to provide the Court the “best evidence practicable”. See, Exhibit A, pg. 3. An IMR is how the Independent Monitor reports to the community and the Court on progress made by the City and APD in achieving the ends of the CASA.

The Proposal expected the Independent Monitor to engage in a process that involves vetting of draft IMR by the Parties:

“Draft reports will be submitted to the parties in sufficient time to permit review, identification of potential inaccuracies or methodological problems, and to resolve those issues in joint discussion among the monitoring team, the management staff of APD and members of the Justice Department’s legal team working the APD decree. Only after the report has been vetted in this matter (sic) will it be submitted to the Court, ensuring the Court and the public have the most accurate, realistic, and meaningful report possible.” Id.

[WHAT WITNESSED AS CITY ATTORNEY]

The process I witnessed as an attorney with the City did not reflect the promises of the Proposal, and the impacts of deviating from the approach of gaining buy-in for each IMR, as a known best practice, are becoming more readily apparent across APD in each day that passes. This language also intimates that the Parties should have already raised the clear “methodological problem” in using an inapplicable Methodology to support compliance findings across several IMR published to the Court and community long ago. The Parties are either frightened, confused by the reform process, too disinterested, or too politically leveraged to challenge the obvious issue raised by such a foundational and self-evident “methodological problem” of using a Methodology that is nearly two years expired.

A. Errors and Omissions, Cut-and-Paste Criticisms, and the Unseen Cost.

The need to vet an IMR with the Parties is self-evident to the Independent Monitor because it is unfair to expect that reasonable minds will never differ and given the mass of data assessed through the police reform effort there must be mistakes, misstatements and disagreement. The razor thin margin for disagreement is most evident when considering that a finding in a use of force investigation is to be supported by a preponderance of evidence, i.e., a greater than fifty percent (50%) evidentiary showing that an event is in/out of policy. Where only one side of a use of force incident is depicted in an IMR, it is therefore only natural to expect that APD personnel will disagree with the assessment and can provide that additional one percentage point to support an investigative finding.

[NO OPPORTUNITY TO REFUTE, ONE SIDED REFORM EFFORT]

Yet, as one peruses an IMR, there is no point-by-point summation of evidence supporting any finding by the Independent Monitor relative to a particular use of force event, and there is no indication that Department personnel were afforded any opportunity to refute the Independent Monitor’s depiction of evidence. Instead, the evidence is presented through a perfunctory and one-sided exposition of the facts leading up to an incident followed by an Independent Monitor finding that a use of force is out of policy. A reader must be left to wonder why APD personnel are never given an opportunity to explain their one percent (1%) of disagreement with these findings. I do not doubt that APD personnel disagree with the depiction of evidence relative to use of force incidents from past IMR. Because only the Independent Monitor’s perspective of evidence is ever published to the community and Your Honor, the monitored reform effort cannot be described as anything other than one sided, an inapposite approach given the Proposal.

[NO QUID PRO QUO DIALOGUE]

In my nearly three years of being involved in the project, I never once witnessed the Independent Monitor engage in a quid pro quo dialogue, or any meaningful discussion with the Parties about the substantive accuracy of any content in a draft IMR. Instead of a quantitative effort akin to a social science analysis (and as expected from the Methodology), the Independent Monitor’s report writing style is far from objective or collaborative, and it has consistently involved lobbing attacks on every echelon of APD personnel.

[CLEVERLY COUCHED VITRIOLIC LANGUAGE]

The surplusage of cleverly couched vitriolic language, packed to the gunnels with exclamation marks and pointed attacks on the Force Review Board, personnel in IAFD, and command staff in IMR-12 must naturally place many of these folks in fear of losing their jobs. I appreciate that the media has been questioning the cost of the police reform effort from a dollar spent perspective, but I consider that the true impact of this style of report writing is felt by APD personnel subject to constant, unquestioned, and highly personal criticism. Combine this with policing one of the most dangerous communities in the country, and it takes no leap of faith to appreciate why officers are transferring out of APD or retiring early.

1. What is the organizational impact of a reporting style that uses exclamation points, repetition of negative findings and one-sided case snippets to update the public on the reform effort? Do not sworn and civilian employees become demoralized by the tone of such reporting so many years into a reform effort?

2. The Independent Monitor sets out case synopses of force incidents, but when drawing conclusions that a particular use of force is out of policy there is no clear delineation of the evidence indicating how a preponderance of evidence standard has been met to say an incident is out of policy. Given that a difference in finding a force incident in or out of policy may be as little as one percent (l%), how is this approach fair or transparent?

3. What if APD can explain the one percentage point supporting their perspective that a particular use of force is in policy? Will this police reform effort be held up by a single use of force case where the Independent Monitor is the only one to be heard about the impropriety of one force application?

4. What if APD misses reporting a single Level 1 use of force incident because an investigation finds that the interaction was meant to guide, assist, or control an individual, i.e., “not a use of force”? Will disagreement over a Level 1 use of force be used to withhold compliance from APD and the City?

5. Does the City have an opportunity to vet the IMR before they are published? If so, is there an ability to object to Dr. Ginger’s tone and repetitively negative approach in reporting on deficiencies? Does this vetting by the City really amount to spotting “errors and omissions”, akin to raising concern over typos and/or misspellings?

6. Is there evidence (or a consensus among sworn and civilian personnel) that the Independent Monitor’s approach to reporting and the reform effort more generally, are leading to officer attrition either through retirement or seeking work elsewhere? Isn’t this an obvious side-effect of a monitoring process that at this point has become so redundantly negative?

7. Is there agreement between the Independent Monitor, the City and DOJ around each IMR before one is published? If not, why not? The Proposal anticipated consensus building, clarity, and transparency around the monitoring process and IMR findings. If there is disagreement, and an IMR is published unilaterally by the Independent Monitor, aren’t these aspirations difficult, if not impossible to achieve?

8. Can the USDOJ-Special Litig. point to another police reform effort with independent monitor reports that are similarly repetitive of negative findings and/or that use exclamatory statements? What is the process to “vet” and file independent monitor’s reports in other police reform projects?

9. Does the Independent Monitor find it helpful to the reform effort to repeat negative findings about issues such as use of force, training, failed executive leadership or some other CASA concern? Is this the best practice in monitoring police reform? Is this what the Independent Monitor did on the Pittsburgh and New Jersey projects to achieve success? If so, and this is the best practice, why does it work?

10. If an IMR is not vetted with buy-in from the Parties, then how is it to be considered factually complete and accurate enough to submit to the Court as evidence?

11. Why can’t the Parties begin vetting each IMR from this point in the reform effort from now until compliance is achieved? Where there is disagreement on a particular Independent Monitor finding, by USDOJ-Special Litig., or the City, wouldn’t it be most helpful for that Party to file an objection or otherwise be heard by the Court?

12. Is the scope of an IMR necessarily meant to entail the collection, assessment and reporting on data gathered in a reporting period? If so, why do IMR veer off the path into subject areas that have nothing to do with attaining compliance, i.e., “duty of care” and issues with the former Chief of Police as discussed repetitively in IMR-12? Don’t such targeted attacks amount to ultimatums for APD to discipline or terminate personnel that may simply be expressing a differing opinion of a use of force incident or other Departmental concern?

[CUT AND PASTE MONITOR REPORTS]

When I worked on the reform project, we performed a quick analysis of an IMR with the goal of determining how much of it was original material, i.e., not repeated several times within the document. We found the Independent Monitor’s reporting style to involve cutting and pasting large swaths of verbiage across multiple other sections in a Report. This cut-and-paste style can also be appreciated from one IMR to the next. The Independent Monitor also cuts and pastes the CASA into every IMR. By doing these things, the Independent Monitor makes an IMR appear to be a mighty tome, when really, each one could be one-third to one-half as long. Through this approach, the Independent Monitor tends to magnify areas of concern by repeating negative observations of APD in an IMR.

[ERROSION OF TRUST]

The Independent Monitor coined the term “counter-CASA” to be indicative of behaviors by officers meant to undermine the police reform effort. I suggest that the Independent Monitor’s caustic, one-sided, and beyond reproach report writing style over the years stands as the exemplar of behavior eroding trust that this reform process is in any way even handed. This erosion of trust is particularly clear when the City and APD lack the ability to challenge erroneous or unfair language found in an IMR. I believe that the cost of the Independent Monitor’s report writing style is immeasurable to the community and APD, as it degrades officer morale and any belief that the reform effort is at all fair, or that it will ever end.

II. The Independent Monitor’s Methodology.

The consensus around outcomes anticipated by the Proposal was supposed to be embodied in the Methodology initially reviewed and commented on by the Parties before it was filed with the Court. The Methodology was meant to identify each CASA required task while also expressing the Parties’ stipulation as to how to assess compliance. The Independent Monitor’s Methodology is a three hundred plus page table indicating data sources, and compliance definitions while specifying whether a particular CASA provision is subject to quantitative or qualitative measurement. For instance, the Methodology establishes that ninety five percent (95%) of outcomes pertinent to an incident, i.e., use of force, must be in line with policy/training for a specific paragraph of the CASA to reach compliance. In the Proposal, the Independent Monitor indicated that assessing compliance was to be primarily a quantitative endeavor, and the Methodology seemingly bears forth this expectation. See, Exhibit A,pg.2.

[OUTDATED METHODOLOGY]

While the Proposal and Methodology are meant to combine into a transparent, easily quantified, and clear monitoring process, one may see that the monitoring of APD’s compliance with the CASA is arbitrary, not explained through quantitative measures, and based on a Methodology that is no longer relevant to the project at hand. This last point is particularly evident given that the Independent Monitor has not amended the Methodology despite wholesale amendments to the CASA taking effect nearly two years ago, whereby APD migrated to a three-tier use of force definitional construct and force investigations being conducted by field supervisors and Force Investigation Section personnel.

Setting aside the obvious methodological deficit in the Independent Monitor purporting to apply a Methodology that is outdated and therefore inapplicable, I view the Independent Monitor’s approach of writing on use of force investigation issues that are wholly irrelevant to policy and training to exemplify another means by which to diminish the fairness of the monitoring process. It seems that the Independent Monitor, in each IMR, casts down new expectations on personnel reviewing and investigating use of force incidents that seem untethered to policy, training, or the Methodology.

1. How can the Independent Monitor continue monitoring this police reform effort based on a Methodology that does not reflect the realities of APD’s changed policy and training relative to use of force reporting and investigations?

2. Why hasn’t the City or USDOJ-Special Litig. raised the apparent issue with the Independent Monitor continuing to use a dated Methodology to assess APD’s operations and performance relative to the CASA?

3. How can APD personnel or the community trust the reliability of a police reform effort that has been touted as transparent, consensus-based, and clear if the Methodology upon which compliance is to be assessed is not even reflective of the CASA?

4. Do the City and USDOJ-Special Litig. understand the role the Methodology is to serve in assessing APD’s compliance with the CASA? If they do, are they concerned with the fact that the Methodology was never changed to reflect the fundamental rewrite of the CASA, while the Independent Monitor continued to promulgate Reports assessing compliance?

5. Do the Amici and various other stakeholders understand that several IMR have been written and delivered to them as valid, quantitative measures of compliance while also appreciating that the Methodology underpinning these Reports is wrong? If they recognized this issue, why have they not raised it to the Court? If they think this is an unimportant issue, or a distinction without a meaningful impact, why is this the case?

6. Shouldn’t the Independent Monitor immediately amend the Methodology and reconsider or amend vast swaths of previous IMR that were written based on the incorrect Methodology? How can the Independent Monitor explain the validity of these past IMR (those published after the amendments to the CASA) given that they are based on an incorrect Methodology?

7. Is there any explanation that can be given to justiff the flawed method in writing several IMR, and presenting them to the Court and community as accurate when the Methodology used to do so is no longer applicable?

8. The Independent Monitor has never explained why ninety five percent (95%) as a quantitative measure, is appropriately applied to use of force investigations or any number of human performance-based tasks called for by the CASA. Is this metric used in other areas of social science assessment of human performance, and more importantly why is it appropriately applied to policing, which on a dayto-day basis in Albuquerque may involve life and death decision making?

9. Can the Independent Monitor direct Your Honor and the community to literature indicating that ninety five percent (95%) is an appropriate measure to be applied in this police reform effort? And, aside from the Independent Monitor’s other projects, when has another independent monitor of a police reform project applied ninety five percent (95%) as the appropriate standard to achieve compliance with either a court approved settlement agreement or consent decree? How long did those projects last?

III. Reviewing Serious Use of Force Investigations and the Interrelationship of CASA Paragraphs.

[SIX YEARS OF FAILURE TO EXPLAIN METHODOLOGY]

The Independent Monitor has also failed, for about six years, to explain to the Court, community, and the Parties the methodology to be used in reviewing serious use of force investigations and explaining paragraphs of the CASA to be assessed together for compliance.
See, CASA, paragraphs 300(a)-(b). This first requirement is important because as I learned in my time working on the police reform project, and in the context of assessing use of force incidents- “[y]ou can’t get anyone to agree on any of this”. A member of the USDOJ-Special Litig. conveyed this wisdom to me as we sat with two members of the Independent Monitoring Team (“IMT”) and members of IAFD during a site visit to assess several use of force investigations involving electronic control weapon (“ECW” or taser) applications. I recall the broad strokes of that use of force incident as follows.

[CASE IN POINT]

On one night two APD officers responded to an individual trespassing near the entryway of a bank. The individual had created a makeshift sleeping shelter in the alcove of the bank. The APD officers told the individual that he needed to leave the area as he was not supposed to be on the premises after bank hours. The individual refused, and during the interaction it became plain that he may be armed as he continued to disobey commands to remove his hands from his pockets. Seeing that the individual remained non-compliant and there was probable cause to arrest for a criminal offense, one of the officers radioed for additional assistance. At least one other officer showed up and the three officers continued to give him verbal commands that he was under arrest and to remove his hands from his pockets. The individual refused and a taser was successfully deployed and the individual was arrested. I recall taking issue with the fact that the officers did not give the individual a verbal warning that he was going to be tased, as was required by APD policy.

I also recall this being a topic of conversation with IAFD personnel as we readied for the meeting with the IMT. I sat through the meeting, expecting the IMT to point out this obvious failure to meet APD policy, and it never happened. I raised this to the IMT by asking if the failure to warn prior to the ECW application was a concern. I was told by them that this failure to warn was not a concern and that they also found the tasing of the passively resistant individual to be within APD policy and training. I appreciated that, as an intermediate force option, tasers allow officers the opportunity to address potentially armed individuals without the need to use physical force. It is, after all, unreasonable and unsafe for an officer to come closer to an individual believed to be armed with a knife, which would increase the risk of harm to the officer and individual.

It was at the point of the IMT not finding the obvious policy violation that I leaned back in my chair into the direction of a member of USDOJ-Special Litig., asking-“[w]hat was that, he didn’t provide a verbal warning? That should be a policy violation.” The attorney responded with “[y]ou can’t get anyone to agree about any of this”. It is in this context that I point out the importance of the Independent Monitor explaining, after more than six years of police reform, the methodology for reviewing serious use of force incidents. While the phrase “serious use of force” is incongruent with the CASA’s three-tiered use of force reporting and investigation approach, I suggest that providing a methodology to bring some rhyme to the reason of reviewing all use of force investigations is long overdue. And while I was not privy to the original drafting of this CASA language, I believe that providing such an explanation would be in the spirit of the Independent Monitor’s aspiration to lend clarity, transparency and consensus building to the reform process.

1. What is the methodology for the Independent Monitor to assess any use of force investigation? The reader of an IMR can see that tangential issues are beginning to take center stage, such as “target glancing”, “overstating charges”, “importance of offrcer reports vis a vis other evidence”, “duf of care” issues, “the role of lapel footage in assessing force incidents”, and myriad other concerns, some of which are not clearly raised by the CASA, APD policy, or APD training. Because there is not a use of force methodology, the definition of Operational Compliance is so subject, and no quantitative Methodology is being applied, no reader can appreciate whether these concerns are becoming part of the compliance equation. As such, it seems very possible that IMR after IMR, new issues raised with new concerns could elongate the monitoring process without end.

2. Without a methodology to review serious use of force investigations (or any force investigation), how can APD ever be expected to meet the seemingly undefined standard of compliance relative to these investigations? Without a defined methodology, doesn’t this mean that for the last six plus years the Independent Monitor has been applying a fluid, undefined, and unagreed upon approach to reviewing these investigations?

How is such an approach fair to APD, and how can it be considered clear, transparent, and based on the consensus of the Parties?

CASA Paragraph 300(a) requires the Independent Monitor to have explained the paragraphs assessed for compliance together. Because this information has never been provided, a reader of an IMR is left to guess how and why large sections of the CASA shift in and out of primary, secondary, and operational compliance together. Much like the failure to update the Methodology, the failure to explain the foundational interrelationship of paragraphs assessed for compliance together serves as another way that this police reform effort may drone on without end.

The scenarios of interrelated compliance determinations in the CASA are limitless given that the reform effort involves two hundred and seventy-six (276) individual requirements pertaining to virtually every facet of APD operations. This is even further complicated because policy, training and operations are assessed for compliance in an amorphous fashion by the Independent Monitor, and in a way that has never been explained to the reader of an IMR. The consequence of this deficiency is that no one can really appreciate why from IMR-toIMR compliance levels rise and fall in what one can only hope is a well-reasoned and fair fashion. The Independent Monitor may contend that these interrelationships are intuitive, therefore, no explanation is needed. I contend that this reform effort has become anything but intuitive, and the Parties were correct in including this directive to have such interdependencies delineated and explained.

[CONCLUSION]

I hope that the foregoing is an aid to Your Honor as you continue presiding over this matter. I agree with the Independent Monitor that police reform is complex in nature and further appreciate that this complexity comes from the revision of policy and training to inculcate a new pattern of behavior in a police organization. I also believe that the most important complexity of a police reform effort is to constantly consider the cause and effect of these changes and the approach to monitoring on APD personnel in the field, investigating burglaries, investigating use of force, homicides and the myriad other permutations of crime that exist in Albuquerque. Because when a police reform effort such as this one is tethered by a monitoring process that is ill-defined, arbitrary to the point of being capricious, and biting in a reporting tone that is personal, one must ask if it is doing anything more than causing collateral damage.

Earlier today I forwarded my correspondence delivered to you on April 29,2021 to the Parties and Independent Monitor as I considered my failure to do so an oversight. As a result of my letter being sent to the Parties, I received a telephone call from the Albuquerque Police Officers Association (“APOA”) indicating that it viewed a deficiency in my depiction of work being performed on behalf of police officers of the Albuquerque Police Department (“APD”). To be clear, I represent APD officers in criminal and administrative investigations and my legal fees are paid by the APOA through dues paid by member officers.

We are writing to Your Honor on behalf of the Plaintiff-Intervenor subclass in McClendon, et al. v. City of Albuquerque, et al. Civ. No. 95-24 JAP/KBM, one of the amici in the above-captioned case, to urge the Court to promptly address the inappropriate activities of the Albuquerque Police Officers’ Association (APOA) that are undermining compliance with the Court’s orders.

After we submitted the McClendon amicus’ May 26, 2021 letter, we read the two emails that were sent to Your Honor by Mr. Jeramy Schmehl, an attorney who represents APD officers “in criminal and administrative investigations” and whose fees “are paid by the APOA through dues paid by member officers” Those emails (the first of which was sent to the Court on April 29th ex parte) attack the Court’s Independent Monitor and the entire implementation process, and fit within the context of the APOA’s campaign to sabotage implementation of the Court’s orders, so require a response.

The APOA argued in its December 19, 2014 Motion To Intervene (MTI) that “its participation will contribute to the equitable resolution of this conflict.” Moreover, after the APOA was granted party status, the APOA has concurred in several motions asking the Court to modify the CASA. The APOA also signed the amended versions of the CASA and Second Amended CASA . Those court-approved settlement agreements which the APOA signed contain, inter alia, these provisions: “The Parties commit to working together to implement this Agreement.” and “The Parties agree to defend the provisions of this Agreement.” It appears that the APOA is violating both of those provisions and is also working in concert with other persons to persuade elected City officials to attempt to abrogate the CASA that the APOA signed.

Sadly, it now seems clear that, contrary to their assertions to the Court when seeking intervention and to the representations made to the Court by its counsel, and in direct contravention of the requirements of [the settlement agreement] the APOA is indisputably not contributing to the equitable resolution of this case. Rather, the APOA is actively and aggressively undermining the efforts by the Court’s Independent Monitor, the United States, and the City of Albuquerque to implement the CASA. The APOA’s actions violate the APOA’s duty as a signatory to the current version of the CASA to make good faith efforts to implement the extant settlement agreement; an agreement which the APOA signed and also asked the Court to enter as a federal consent decree.

[THE APOA IS ACTIVELY CAMPAIGNING]

1. The APOA is actively campaigning to get City officials to abrogate the commitments embodied in the CASA. As the Court is likely aware, an April 26, 2021 story in the Albuquerque Journal regarding the APOA’s “Crime Matters More” campaign, stated the following:

The Albuquerque Police Officers’ Association has launched a campaign urging the public to tell city leaders that “crime matters more” and that “they want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight.”

The APOA’s campaign cost $70,000 and involves billboards around the city and testimonials on TV, radio and social media from former Albuquerque Police Department officers “explaining how hard it is to just succeed,” said Shaun Willoughby, the union’s president. The push includes providing an email template for people to tell city leaders they believe in police reform and think APD has made progress but they 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,” the template states.

Much of Willoughby’s ire seemed directed at the city attorneys – “you don’t need enemies when you have friends like the city attorney” – who he said aren’t supporting officers at the federal court hearings held periodically throughout the year. “We believe that our community deserves better from this police department,” he said. “We believe our community deserves better from this consent decree process.”

https://www.abqjournal.com/2384284/apd-union-launches-campaign-against-dojoversight.html

In addition, the APOA’s President, Mr. Willoughby, stated on April 26, 2021 to KOB-TV, “You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both; and we think it’s time that our city leaders hear from the actual community that crime matters more because it does.”
https://www.kob.com/new-mexico-news/albuquerque-police-union-starts-campaign-to-pushback-against-doj-requirements/6087348/

[APOA ALSO APPEARS TO HAVE STOPPED PARTICIPATING IN GOOD FAITH]

2. The APOA also appears to have stopped participating in good faith in some of the processes designed to bring about compliance with the CASA. When attending the May 26th pre-hearing meeting with the parties that Judge Brack directed the parties and the amici to conduct prior to the court hearings during which the Independent Monitor’s reports are discussed with the Court, it was learned that the APOA is no longer participating in the process established by Judge Brack.

It is our impression that the APOA is also not participating meaningfully in the regularly scheduled meetings that the other parties have been holding for years with the Court’s Independent Monitor to attempt to improve compliance. Those failures to “work together to implement” the CASA impede compliance and should be remedied.

In Clearone Communs., Inc. v. Chiang, … the court held, “In civil contempt proceedings, disobedience of the order need not be willful. Rather, “[a] district court is justified in adjudging a person to be in civil contempt for failure to be reasonably diligent and energetic in attempting to accomplish what was ordered.”

[In a 1998] case involving a union that attempted to thwart the purpose of a consent decree, the court held:

Consent decrees are subject to continuing supervision and enforcement by the Court. ” ‘[A] court has an affirmative duty to protect the integrity of its decree. This duty arises where the performance of one party threatens to frustrate the purpose of the decree. … it is not necessary to find that the defendants willfully violated the consent decree in order to hold them in contempt. “

… .
[In the case of In EEOC v. Local 580], the goal of the consent decree was to increase minority and female employment in the Times’s bargaining unit and in the Casual labor force. The practices of the defendants have had an adverse effect on this goal, and the Court has the power to take any steps necessary to counteract and compensate for the adverse effect on minority and female hiring within the four corners of the consent decree. … .

It is evident that the APOA and its lawyers are not just failing to be reasonably diligent in attempting to accomplish what they agreed must be done and what they asked the court to adopt as an order of the Court, but APOA’s actions are indisputably having an adverse effect on the central goal of the litigation; eliminating the endemic pattern and practice of using force unnecessarily and excessively and eliminating the culture of aggression that pervades the APD.

Moreover, the Court does not need to hold the APOA in contempt in order to sanction actions by APOA officials and representatives that undermine implementation of the CASA. Citing Hutto v. Finney, … (1978), the Supreme Court has held that a federal court may sanction a party without necessarily holding them in contempt, “when a party ‘shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. … The imposition of sanctions in this instance transcends a court’s equitable power concerning relations between the parties and reaches a court’s inherent power to police itself, thus . . . “vindicating judicial authority without resort to the more drastic sanctions available for contempt of court” …

[SABOTAGING IMPLEMENTATION OF THE CONSENT DECREE]