On November 12, 2021 the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 14th “Compliance Levels of the Albuquerque Police Department and the City of Albuquerque with Requirements of the Court Approved Settlement Agreement” (CASA). The report was one of the most critical and scathing to date as to the city’s intentional noncompliance and failure to investigate hundreds of police use of force cases. The report covers the time frame of February 1, 2021 to July 31, 2021. The link to review the entire 331-page report is here:
HIGHLIGHTS OF 14TH INDEPENDANT MAONITOR’S REPORT
Quoting the 14th Monitors Report, following are the most critical highlights of the 14th Monitor’s Report:
USE OF FORCE INVESTIGATIONS BACKLOG HARSHLY CRITICIZED BY MONITOR
“The most important issues affecting APD during the IMR-14 reporting period involve misconduct investigations, use of force investigations, the lack of progressive discipline when misconduct is found, and supervision and leadership.
All non-force-related misconduct investigations completed by APD … were found to be deficient. A total of 17 misconduct cases, 6 investigated by Internal Affairs and 9 area command investigations were reviewed, including two that were completed by outside agencies.
The only properly investigated case reviewed by the monitoring team this reporting period was completed by an outside agency. In two consecutive reporting periods, a virtual shut down of use of force investigations has occurred in Internal Affairs.
Only seven, or 3%, of the 216 Level 2 cases opened were closed. Only 1 of those 7 was completed within 90 days, or less than one-half of a percent. Only two of 91 Level 3 use of force cases opened during this period were completed by [Internal Affairs Force Division] IFD or 2%. Neither of the 2 cases were completed within the CASA required 90-day period.
We find these failings to be more than notable, given the amount of time the monitoring team spent with APD in the last three reporting periods specifically focused on process improvement processes at [the Internal Affairs Force Division] IAFD. Of the twelve cases reviewed for compliance concerning discipline, only 58% met the requirements for adherence to progressive discipline as outlined in the CASA.
A second backlog of 667 uninvestigated use of force cases … was reported. This second backlog is more than double the initial backlog APD dealt with from 2018-2020 and does not include any of the contemporary cases left uninvestigated by IAFD.
Approximately 83% of these cases are already time-barred for discipline in accordance with the CBA [police union contract] , should misconduct be found. Since its discovery, this backlog has been reduced from 667 cases to 660 cases as of October 25, 2021. At this rate of case productivity, we project that it will take APD 94 months to “clear” this second backlog, which, again, would ensure no disciplinary actions for policy violations in another 667 cases.”
INTENTIONAL BACKLOG AND NON-COMPLIANCE
“Given the amount of focus on the problems related to [the Internal Affairs Force Division] IAFD investigations in previous monitor’s reports, and the exceptional amounts of technical assistance provided by the monitoring team relating to IAFD processes, we can only conclude that this new backlog was intentional, and yet another canard designed to ensure that officers are not disciplined for known policy violations. We consider this another example of deliberate non-compliance exhibited by APD.
Leadership and supervision, especially in the critical areas of reform listed above, are simply lacking—or in some cases not extant. As such, these findings require direct action by the City and APD leadership to identify the causes of, and to take corrective actions responding to, what can only be described as deliberate failures to comply with existing APD policy and with CASA requirements.
Given the extensive amounts of technical assistance provided by the monitoring team related to misconduct investigations and to workload management, we can only conclude that these jarring failures are deliberate.
This reform project’s evaluation process, i.e., the manner in which the monitoring team assesses and reports progress on the required reforms, has been closely aligned to the measurable tenets of effective management.
First, the methodology closely conforms with the concept that effective management is based on developing cogent and coherent policies (articulation of acceptable activities required of police personnel).
Officers, supervisors, managers, and leaders must be clearly “on notice” of organizational expectations, so that they understand and are willing to adhere to those expectations. Once these reformative policies have been articulated, all involved personnel (recruits, officers, supervisors, and managers) must be trained to the point that they understand and are capable of implementing these policies.”
DELIBERATE FAILURE BY APD MANAGEMENT
“The monitor’s oversight process for APD during the past six years has been based on this near-universal understanding of police operational management and control. After six years of implementation, APD has fallen significantly short in its ability to engender the supervisory, managerial, and leadership efforts that have been demonstrated much earlier in other law enforcement agencies monitored in this manner.
The fact that this planned change process works, and can work well, is documented in the fact that a large majority of this monitor’s staff working on the Albuquerque Police Department monitoring process are past members of organizations that have been directly monitored by the current APD monitor.
These team members have “lived the change process” and done so successfully in their respective agencies, thus are uniquely situated to guide APD successfully through the change process.
Given the amount of technical assistance provide to APD by members of this monitoring team; given the fact that for every “out-of-compliance” outcome found by the monitor, there are recommendations developed to guide APD into compliance; given the inordinate amounts of “technical assistance” provided to APD by 4 members of the monitoring team over the past six years.
The monitor can only conclude, based on his knowledge, training and experience, that these failures at APD are deliberate.”
FORCE REVIEW BOARD
“We have noted critical potential issues with APD’s Force Review Board this reporting period, including our assessment that the number of uses of force requiring review by [the Force Review Board] FRB are likely to overload the review and assessment mechanism. This speaks as much to APD’s inability (or unwillingness) to control unnecessary or improper uses of force as it does to the efficacy of the Force Review Board itself.
The sheer volume of reported uses of force by APD officers threatens to overload the oversight system. This is both a commentary on the magnitude of reportable uses of force effectuated by APD officers and the relative inability or unwillingness of APD field commanders to call out improper uses of force.
As with past reporting periods, however, the central CASA requirements related to use of force continue to need a great deal of scrutiny and oversight if APD is to reach full compliance with the requirements of the CASA.”
OPERATIONAL COMPLIANCE STATIC
“For the last seven reporting periods, operational compliance levels have been virtually static, with operational compliance levels holding at or near an average of 62 percent. Actual data points range from a low of 59 percent (IMR-8 and IMR-13) to a high of 66 percent (IMR-11).
Our assessment is that APD has dealt with the low hanging fruit of the CASA and has deliberately failed to deal with the issues that are the crux of the reform process: officers’ tendencies to use unnecessary force, to under-report (or fail to report) uses of force, and supervisory and oversight personnel’s unwillingness to identify, classify, and correct these issues.
Obviously, use of force practices are a key element of the reform process. To date, APD, as an organization, has simply refused to deal effectively with pressing use of force issues. The monitoring team has provided, and continues to, provide more technical assistance to APD than any other police department it has monitored.
For the most part, that technical assistance is not implemented by APD when it comes to identifying, classifying, investigating, and correcting unnecessary uses of force by its personnel.
The monitor is convinced that, at this point, failures by APD to deal with improper uses of force are related to will, not ability.”
DECEMBER 16 HEARING
On December 16, 2021 a hearing on the 14th Federal Monitor’s Report was held where the Federal Monitor presented his report and the City, the Department of Justice and Third-Party Intervenor Police Union were allowed to give their reaction to the 14th report. The 14th Federal Monitor’s Report resulted in a full throttle assault and condemnation of the Federal Monitor by the City, APD and the police union directed at the process, the language used by the monitor and what he reported as the failures of APD.
CITY ATTORNEY REACTS
City Attorney Esteban Aguilar, Jr. had this to say:
“Using … inflammatory hyperbolic language is improper editorializing in a whole lot of areas. … It improperly ascribes intent to the work of our officers, the women and men who are on the ground, trying to not only keep us safe, but trying to implement all of the provisions of constitutional community-based policing. … We have failures, you know, we still have … 37% operational compliance to attain, so we do have a long way to go. … But we’re not at the beginning of this process. And, I think it does a disservice to the work of the department, but also the work of the community members who have been engaged in this process, and who have been actually asking for meaningful change as well, because we’ve been walking with them step by step throughout this process.”
APD CHIEF HAROLD MEDINA REACTS
APD Chief Medina condemned the 14th Federal Monitor report saying it’s easy for someone who is “thousands of miles away” to point at APD’s problems and saying it’s intentional. Medina claims that everyone is working to comply in the best way they can and he had this to say:
“It’s a matter that we don’t know how to do stuff to their liking, or to their standards. … I think that’s been a problem from the very beginning is that instantly when APD fails, they’re tagged by the monitoring team, DOJ, as ‘Oh, APD is resisting this.’ No, you guys are all here because APD sometimes doesn’t know how to do this stuff. And that’s what we should be doing is if we’re doing it wrong, correct us more quickly, and give us the lag time to put the fixes in place.”
Medina said he agreed with parts of the report and acknowledge there is more work to done particularly with some officers in the ranks who are not doing what is required under the consent decree. Medina had this to say:
“There may be individual officers that may be deliberately not doing something they need to do. … The thing I take offense to is that leadership questions that this isn’t being supported by leadership.”
APD UNION REACTS
Shaun Willoughby, president of the Albuquerque Police Officer’s Association, had this to say about the 14th Federal Monitor’s Report:
“Dr. Ginger is pointing the finger at APD, saying that they’re doing this intentionally. That’s an absolute absurd joke. It’s a lie. … The monitor was supposed to be here in Albuquerque, helping with technical assistance. He’s doing that over Zoom and over phone calls from a different state.”
EDITORS COMMENTARY AND ANALYSIS: What Willoughby has never acknowledged in public is that the monitor did live here for a while and it is not just him doing all the work. The monitor and his team of 10 on a regular basis, met with city officials by zoom or have come to the city. For the last 2 years, the pandemic has forced changes to the way business is done. For the last 2 years, the Federal Court has held hearings in the case by zoom and Willoughby has not complained. Ginger is an officer of the court and works for the court and should be able to do the auditing remotely. The federal monitor’s reports and the data being collected is done by a team who review data and work with APD to give them guidance. The Federal Monitor himself has met with community leaders privately and in the past attended public meetings and has made presentations to the city council on his reports.
https://www.koat.com/article/albuquerque-police-department-responds-to-doj-monitor-report/38285085
APD FORWARD REACTS
APD Forward is a coalition of 27 police reform advocacy groups and community stakeholders that were instrumental in petitioning in bringing the Department of Justice to the city to investigate APD’s use of deadly force. The American Civil Liberties New Mexico chapter is part of APD Forward and acts as it main spokesperson. Barron Jones, a senior policy strategist with the ACLU, said after reading the report, it’s clear that APD still has a lot of work to do and said:
“Unfortunately, it’s more of the same [from APD]. … While we recognize the department’s efforts to improve training and that the performance metric unit is up and helping folks analyze trends we believe that the crux of the reform lies in the department’s ability to address bad behavior, or out of policy violations. That doesn’t seem to be happening yet during another monitor report.
“It just sort of boils down to are they completing those use of force investigations in a timely manner, in a way that [APD] … leadership can take corrective action and address behavior before it gets out of hand. You know, the department can make all the changes in the world, but if they can’t get that component right, then the reform process is falling flat.”
KELLER ANNOUNCES NEW “PUSHBACK” TACTIC DEALING WITH CASA
On January 13, 2022, Channel 4 broadcast a story of Mayor Tim Keller giving a luncheon speech on January 11 to the Greater Chamber of Commerce. Keller used the opportunity to announce a new strategy on how to deal with the CASA. Keller was asked what is the City’s strategy going forward to deal with the ongoing federal oversight of the Albuquerque Police Department.
Mayor Tim Keller responded while the news camera was rolling:
“I thought, we’ll just say yes [to the settlement]. We’ll get it done, because – kind of before – there was a lot of resistance. Well, neither of those strategies work. Resistance didn’t work. Just saying yes, also didn’t work. . . . We have to do what is right for the Albuquerque Police Department and the City of Albuquerque. … That is different based on what they think we should do based on Maryland. Or what they think we should do based on LA. That’s been a huge part of the problem.”
Chief Administration Officer Sarita Nair and Shawn Willoughby, the President of the Albuquerque Police Officers’ Association were both interviewed by Channel 4 for the same story that featured Keller.
Willoughby had this to say:
“I can wholeheartedly understand that when Mayor Keller first took office four years ago, after the resistance that the DOJ and the City of Albuquerque had, he wanted to be a bridge-builder. And, they definitely went that strategy. … This needs to come down to action. … That use of force policy needs to be changed immediately. The City of Albuquerque is the plaintiff and they have the right to run this city and run this police department.”
EDITOR’S COMMENTARY AND ANALYSIS: Willoughby’s demand that the “use of force policy needs to be changed immediately” is hypocritical seeing as he sat at the bargaining table to negotiate the policy and he contributed to the full one year delay in drafting the use of force policy. In the past, the Federal Monitor noted the reason for the one year delay was upwards of 50 amendments and changes demanded by the union. Simply put, the police union does not want any kind of a “use of force” or “deadly force policy” and wants sworn officers to have 100% total discretion to decide when to use force or deadly force and under what circumstances.
Chief Administration Officer Sarita Nair boldly proclaimed:
“[The Federal Monitor] is supposed to just grade us on the policies we have and whether we’re doing them or not, he’s not supposed to be monkeying around with personnel, he’s not supposed to be taking stances that are intended to change behavior. … We need to continue to push back on that.”
EDITOR’S COMMENTARY AND ANALYSIS: CAO Nair’s comments that “he’s not supposed to be monkeying around with personnel, he’s not supposed to be taking stances that are intended to change behavior” reveal a remarkable ignorance of the CASA and the purpose and intent of the CASA. The settlement provisions are very clear that the Federal Monitor has no management, nor control over APD personnel, nor over the day to day operations of APD. The Federal Monitor cannot hire or discipline APD personnel. During the February 9 hearing, Judge Browning also pointed out that it is inherent in the Federal Monitor’s duties and responsibilities to take stances that are intended to change APD’s behavior to achieve constitutional policing.
The link to the full Channel 4 report is here:
FEBRUARY 9, 2022 HEARING
On February 9, Federal Judge James Browning held a second hearing on the 14th Federal Monitor’s Report to allow “amicus curiae” or friends of the Court and police reform advocates to offer their say to the Federal Monitors 14th report.
The February 14 hearing was a dramatic contrast with the December 16 hearing. The members of the community and police reform advocates expressed support of the Federal Monitor. The hearing was also a full throttle complaint session that the city continues to fail to implement the reforms.
APD police reform advocates made it clear and showed their frustration that they feel the Department of Justice is not doing its job to hold APD accountable for its deliberate failure to come into compliance with CASA reforms. Police reform advocates criticized the Department of Justice no longer being committed to the police reform process and being derelict in its duty to hold the city accountable for intentional violations of the court order.
The plaintiffs in the case of McClendon v. City of Albuquerque went so far as to advocate that APD and the City be held in civil contempt of court for deliberate and willful violations of the CASA. The Court was asked to place APD into receivership.
PARTICPANTS WHO TESTIFIED
Gary Housepian, the Executive director of Disability Rights New Mexico, bluntly asked if the Keller Administration and APD administration were still committed to bringing constitutional policing to Albuquerque. Housepian aggressively pushed back on APD’s and the City’s false rhetoric linking high violent crime to the CASA reform efforts. Last year the APD police union conducted a $70,000 media campaign to discredit the reforms and pushed the false narrative that the CASA reforms are causing increases in the city’s crime rates and keeping sworn police from doing their job.
Vickie Williams, the representative from the Community Policing Councils (CPCs), citizen groups created by the Court Approved Settlement Agreement to engage in dialogue with the police department, said the CPC’s feel “left out, disrespected and unappreciated,” and didn’t have enough resources to be effective.
Alfred Mathewson, along with attorney and state Representative Antonio Maestas, and attorney Stephen Torres, is counsel for the Amici group known as the Community Coalition. The coalition, a collaboration arising out of the Martin Luther King Task Force on Social Justice organized by Jewel Hall, includes among others the Albuquerque Center for Peace and Justice, Hispano Roundtable of New Mexico, New Mexico LULAC (League of United Latin American Citizens), and SWOP (Southwest Organizing Project). Mathewson raised the issue that after 7 years and millions spent, how much longer and how much will it take for APD to finally come into compliance with the reforms. He expressed community fears that the city is facing upwards of 4 and a half years more of DOJ oversight. He expressed totally frustration with the DOJ’s failure to act. Mathewson said a goal should be set that all the reforms should be completed within 2 years.
Dan Walter, the retiring chair of the Mental Health Response Advisory Committee criticized the Keller Administrations new Community Safety department, made up of first responders tasked with handling mental health and homelessness calls, for not involving the board or asking for advice when developing policies and procedures.
MOST DAMNING NARRATIVE PRESENTED
Civil Rights Attorney Peter Cubra, a highly experienced attorney who represents the McClendon subclass representing incarcerated people, said he was horrified by Mayor Keller Administration’s attacks on the independent monitor and his finding of APD’s failed progress. Cubra said the case is in the worse position of any case he has seen in these types of cases. Cubra told Judge Browning:
“In recent times, the city of Albuquerque has done the most shocking things I’ve ever seen in one of these kinds of lawsuits. … Their horrific levels of non-compliance alone would be the basis for civil contempt.”
In his February 3, 2022 letter to Judge James Browning for the hearing, Cubra emphasized the follow points:
1. “[The city” is not coming close to complying with the court orders which they asked [the] Court to enter as a consent decree in 2014.”
2. “[APD] intentionally stopped investigating alleged violations of the CASA and the Fourth Amendment by its employees allowing [police officer] violators to go uninvestigated and undisciplined.
3. “[The city] has not hired a permanent Superintendent of Police reform and is generally not being reasonably diligent in attempting to accomplish what they stipulated should be done; without ever asking for modifications or suspension of the provisions they are knowingly violating”
4. “Since the Independent Monitor issued his Fourteenth Report, City Officials have repeatedly publicly attacked the Monitor, undermining the Court’s authority and integrity as well as the effectiveness of the Monitor’s work. The City is currently using its web site to attack the Independent Monitor.”
5. According to the Cubra letter and quoting statements made, city officials, including Mayor Tim Keller, Chief Administrative Officer Sarita Nair, APD Chief Harold Medina and the Police Union President have all engaged in unfounded public attacks and false statements about the Federal Independent Monitor, his work performance and his work product.
6. “The City suspended altogether its efforts to comply with its obligation to investigate uses of force, but never asked the Court either to suspend its obligations or for a modification of its obligations.”
7. “During the reporting period, the Internal Affairs Force Division completed just one level 2 and 3 use of force investigations within the 90-day time period outlined in the CASA. As of October 25, 2021, IAFD had a 660-case backlog of uninvestigated level 2 and 3 use of force cases. The majority of those 660 cases, 93 percent, are older than 90 days and more than 80 percent are too old to discipline the officers if IAFD investigators uncover misconduct.
8. The monitoring team … reported on the City’s continuing failure to comply with the CASA provisions regarding how its officers interact with individuals who are experiencing behavioral health crises.
9. “The Fourteenth IMR shows continued and chronic noncompliance. As was made clear during the December hearing, violations of the CASA are numerous and chronic.”
10. “The Department of Justice (DOJ) appears to be so overtaxed by its myriad responsibilities in other matters that it has not initiated any motions practice to address the problems … . The DOJ … has the inherent authority to seek a contempt finding herein. … However, counsel for the United States have not filed a motion seeking to enforce the CASA, despite filing numerous reports since 2017 that irrefutably show that noncompliance is chronic and, often, deliberate.”
Cubra said that he was dismayed the Department of Justice had not taken action and urged U.S. District Judge James Browning to do so instead. The Court has declined to take any action.
The McClendon subclass concluded with the following requests.
1. It requested Judge Browning to promptly convene a show cause hearing to determine if the City’s actions constitute contempt of court, and, if so, to appoint a receiver to manage the City’s implementation of the CASA; and
2. To allow counsel for the amici to call witnesses, introduce evidence and otherwise participate actively at the show cause hearing in light of the failure of the United States to “seek enforcement of the provisions of” the CASA and to act to protect the authority and integrity of the Independent Monitor and the CASA from unwarranted attack.
The Court has repeatedly declined to take any action requested by the friends of the court or amici groups and police reform advocates.
MAYOR KELLER’S PUSHBACK TACTIC
During the February 9, hearing Judge James Browning went out of his way to quote Mayor Keller and asked what Keller meant when Keller told the Chamber of Commerce:
“I thought, we’ll just say yes [to the settlement]. We’ll get it done, because – kind of before – there was a lot of resistance. Well, neither of those strategies work. Resistance didn’t work. Just saying yes, also didn’t work. . . . We have to do what is right for the Albuquerque Police Department and the City of Albuquerque. … That is different based on what they think we should do based on Maryland. Or what they think we should do based on LA. That’s been a huge part of the problem.”
Attorney Carlos Pacheco who was representing the City during the hearing responded he was not at all sure what the Mayor meant. However, Pacheco did offer an opinion that what differentiates the City of Albuquerque’s consent decree from all others in the country is that it is unique, deals with APD’s interactions with the mentally ill and you cannot rely on what is working in those other city’s as being what is needed in Albuquerque. Browning acknowledged the opinion was a reasonable explanation for the Mayor’s comments.
DOJ, APD AND POLICE UNION PUSH BACK
During the February 9 hearing, the City and the Department of Justice affirmed their commitment to seeing the court-mandated reforms through to create lasting change. However, both pushed back against the criticism.
Department of Justice Attorney Paul Killebrew said the goal is not merely to get the city past the finish line, but also to foster sustainable reforms. Killebrew said this:
“All options remain on the table … So, on an ongoing basis, we’re examining what is happening with compliance and what are the steps that we need to take to move compliance along to help APD reach the goals of the consent decree and to protect the people of Albuquerque from unconstitutional policing.”
APD Chief Harold Medina, appearing by zoom in a coat and tie and not his customary open neck polo shirt with an APD emblem he is known to wear in public, was highly defensive and said he was doing all he could with the resources he has. He also said that means pushing back on the independent monitor on findings he disagrees with.
Medina put it this way:
“If I had an unlimited budget and unlimited resources, I’d have every position hired necessary for us to go into compliance. … The simple fact of the matter is I don’t. I have given every civilian position that I can to compliance, so I can get sworn people going out to enforce laws.”
The link to quoted news source material is here:
https://www.abqjournal.com/2469066/police-reform-advocates-express-frustration-at-city-doj.html
EDITOR’S COMMENTARY AND ANALYSIS: It’s laughable that Medina told Judge Browning that if he had “unlimited budget and unlimited resources, I’d have every position hired necessary for us to go into compliance.” The truth is, APD has been given all funding it has asked for during the last 4 years under Mayor Keller and still APD fails to get the job done right.
APD is the largest budgeted department in the city’s history. APD’s approved general fund operating 2022 budget is upwards of $222 million. The City Council has approved all the APD funding the Keller Administration has ever requested. Medina for his part has doubled the number of Deputy Chiefs, increased the Chief’s office command staff from 3 to 10 and has added a new level of management of 14 assistant commanders. The new negotiated police contract makes APD the best-paid law enforcement agency in the region by increasing hourly pay by 8% and longevity pay by 5%, and creating a whole new category of incentive pay.
POLICE UNION CONTRACT SIGNED
During the February 9 hearing, Police Union Attorney Fred Mower categorically denied that there is a “deliberate counter casa effect”. Mower said there is a personnel shortage. Despite what police union lawyer Mower said, the federal monitor has repeatedly documented instances of “deliberate counter casa effect.”
It was in the Federal Monitors 10th audit report that the “Counter CASA” effect was defined. According to the Federal Monitor:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
Mower told Judge Browning that the current union contract is the previous contract that has expired with identical terms and that only salary pay increases were negotiated. That may be the case, but Police Union President Shaun Willoughby himself has said there were certain provisions of the contract that were “no starters” for negotiations such as the time frame increased to investigate police misconduct cases and if sergeants and lieutenants should be allowed to be in the union.
The police union contract containing the pay increases was signed on December 30, 2021 by Mayor Tim Keller, City Attorney Estaban Aguilar, City Clerk Ethan Watson and Police Union President Shaun Willoughby. The 48-page APOA police “Collective Bargaining Agreement” (CBA) is for 1 year and 6 months period. It is effective January 1, 2022 through June 30, 2023. The new CBA can be down loaded as a PDF file at this link:
https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view
PLAN UNVEILED TO DEAL WITH BACKLOG OF USE OF FORCE CASES
According to the 14th Federal Monitor’s Report, there is a 667 backlog of use of force cases. Of the backlog, 83% are older than 120 days, and under the settlement officers cannot be disciplined if it was discovered they had violated policies. Notwithstanding, the DOJ is demanding that APD clear the 660-case backlog to determine the extent of police misconduct.
During the February 6 status conference hearing, APD unveiled a plan to tackle the 660-case backlog of uninvestigated level 2 and 3 use of force cases. Level 2 use of force is when an officer has to use force and the person is not injured. Level 3 includes anything that sends someone to the hospital or death, like officer-involved shootings. The Department of Justice has complained that APD doesn’t investigate use of force cases thoroughly and they are slow to look into cases.
Zak Cottrell, the Interim Deputy Superintendent of Police Reform said such investigations “[Are] actually a very extensive investigation, they can take a lot of time – a lot of video has to be reviewed, make sure officer statements match what’s on the video.”
APD wants the External Force Investigative Team (EFIT) established last year to help them out and sort through the cases. The City established the External Force Investigation Team (EFIT) to assist the Albuquerque Police Department (APD) in conducting use of force investigations by APD officers, while also assisting APD with improving the quality of its use of force by police investigations. The EFIT team is supposed to be temporary to train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers.
APD is seeking the EFIT to expand its scope of work and tackle the backlog of cases that formed through the first half of 2021. Currently, APD has 25 sworn officers and civilians working on the EFIT. APD is working with EFIT, along with their own officers, to look at the backlog of cases. APD, the City, and the Department of Justice are in the process of negotiating the contract with the External Force Investigative Team. If it is approved, the contract would cover 2 years.
The police union says APD should be looking at their policy rather than spending $3 million on the program. Shaun Willoughby, president of the Albuquerque Police Officers Association, had this to say:
“We’ve had backlog after backlog after backlog, and the real nooks and cranny of the problem we are always going to be in a backlog. There is always going to be a backlog at this police department until the police department changes the policy.”
EDITOR’S COMMENTARY AND ANALYSIS: Willoughby once again deflects any and all responsivity of his union membership contributing to the “backlog after backlog” with their intentional obstructionist’s tactics as sergeants and lieutenants refuse to hold subordinates accountable for will violations of policy.
The link to quoted news source material is here:
During the February 6 hearing, Federal District Judge James Browning raised the issue with his line of questioning if the CASA has now become more of a “historical document”. The point he ostensibly was making is that the CASA is no longer relevant to current times as opposed to an ongoing “living document”, as Judge James Browning described it, or a court order that needs to be modified to changing times. Judge Browning noted that their seems to have been a shift in public opinion without elaborating.
CHANGING TIMES DEMAND CHANGES IN APPROACH
One thing is certain. After 7 years, things have changed drastically with law enforcement not only in the city but nationally because of the “Black Lives Movement” and the killing of African American George Floyd by police. Judge Browning asked the Department of Justice if it was still committed to the CASA. Not at all surprising is DOJ Attorney Paul Killebrew said yes. If that is the case, the DOJ and Killebrew need to give the city’s police reform advocates more than lip service and do the job of going to court to hold APD and the city accountable for its intentional conduct of undermining and disobeying a court order.
After the December 16 and February 9 hearings, it’ s clear that the Department of Justice will not take any action to hold the city and APD accountable with contempt of court actions nor ask for the appointment of a receiver to take over APD. Federal District Judge James Browning has made it clear in 3 separate hearings that the court will not take any action unless specifically requested and agreed to by the City and the Department of Justice. Judge Browning needs to reconsider, otherwise things will only remain the same or perhaps continue to get worse.
It obvious the DOJ does not have the stomach nor does it want to do any of the heavy lifting when it comes to the reforms. The DOJ prefers to rely on the Federal Monitor as the lightning rod and prefers stipulated agreements with the city to settle any differences they may have with the city and APD, even when they have more than enough evidence that will support a contempt of court action. The DOJ is no longer cutting it and APD police oversight advocates know it and want and are demanding more from the court and the DOJ. It was the APD police reform advocates that worked to bring the DOJ to the city in the first place after far too many shootings.
The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. That is exactly what is happening in Albuquerque, and will continue to do so unless the Federal Court puts the brakes on it. The single most remarkable understatement made during a status conference hearing a few years ago by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew was when he said:
“APD has proven over and over again its agility to avoid the requirements of the CASA.”
WHERE THERE IS A WILL TO OBSTRUCT, THERE IS A WAY TO OBSTRUCT
Given what Mayor Tim Keller, CAO Sarita Nair, City Attorney Esteban Aguilar and APD Chief Harold Medina have now said about the 14th Federal Monitors report it is abundantly clear they are now engaged in joint efforts with the police union favoring “noncompliance” and obstruction tactics.
Where there is a will to obstruct the CASA reforms, the Mayor, the City, APD management and the Police Union will likely find a way. The DOJ have failed to learn that lesson after 7 years and millions spent on the reform effort. The Federal Monitoring Team after over 7 years know without any doubt what needs to be done with use of force investigation and knows where things are lacking. The 300 plus page audits covering each time the 271 reforms and the Monitor always have the same old refrain “it’s not my job” to manage.
Review of all the Federal Independent Monitors Reports and reforms implemented, one conclusion is the spirit and intent of the settlement has been achieved with new “use of force” and “use of deadly force” policies, extensive training and sweeping mandated changes to APD protocols. Still, APD hovers at around 60% “operational compliance” when 95% is required for two years to dismiss the DOJ consent decree.
AS GOOD AS IT’S GOING TO GET
After 7 years and millions spent, it is likely things are as good as its going to get with the Keller Administration’s current APD management under the consent decree. Now that Keller has been elected to a second term, he and his minions feel free to challenge the need for the consent decree and to criticize the monitor’s findings. The is a far cry from 4 years ago when Keller said he was fully committed to police reform. Keller campaigned and was elected in part promising to implement the DOJ consent decree reforms, proclaiming his administration “owned it” and he would be judged on his success or failure. Keller now has “buyer’s remorse” when it comes to the CASA reforms, but he still owns it.
It is painfully obvious from review of all the monitor’s reports that APD’s high command appointed by Mayor Tim Keller cannot get the job done to the satisfaction of the federal monitor and the DOJ. The Federal Monitor has said that in order to effectuate real change within APD, and outsider Chief who fully understands constitutional policing practices needs to appointed. Mayor Keller has now twice refused to appoint a Chief from the outside preferring to appoint Chief’s and Deputy Chief’s who have retired from APD. Mayor Keller appointed Chiefs and Deputy Chiefs who have been with APD for decades. They helped create, were aware of, participated in or did absolutely nothing to stop the “culture of aggression” and the excessive use of force and deadly force.
APPOINT A RECEIVER, DISMISS THE CASA
APD has now reached the point with all its failures to implement the 271 reforms that the Department of Justice should seek Court Orders through a Motion For Contempt to hold the City and APD accountable. The DOJ should ask Judge Browning to appoint a receiver to get the job done to its satisfaction and let the DOJ do the heavy lifting for a change when it comes to the reforms. If the DOJ does not want to act, Judge Browning should act “sua sponte” and appoint a DOJ receiver to take over APD and set aside the CASA as unworkable or using his own term as “historical”.
Federal Monitor James Ginger at the conclusion of the February 9 hearing said that the 15th Monitor’s Report will be filed on May 11. It’s not at all likely that his findings of compliance will be any better or dramatically different that the past few reports.