On November 16, 2017, US Federal Judge Robert C. Brack held a daylong hearing on Federal Monitor James Ginger’s sixth progress report regarding the Albuquerque Police Department’s (APD) compliance with the Court Approved Settlement Agreement (CASA).
At the conclusion of the daylong hearing, Judge Brack also announced his decision denying the City’s Motion for and evidentiary hearing to determine if the Federal Monitor is biased against the Albuquerque Police Department.
Judge Brack also had his written order filed as he announced his decision from the bench.
Following is the full transcript of the ruling, with headlines added by reporter Dennis Domrzalki with ABQ Reports, announced from the bench:
“And that brings us to the motion for the evidentiary hearing. We’ve heard some about that today. And I’ve got lots of thoughts. Those thoughts have been informed by what I’ve heard today. But several days ago, with an election looming, an audit of the monitor threatened, and the monitor’s sixth report anticipated, the City of Albuquerque without prior consultation with the Court, and certainly without my permission, published a video, evidence, taken in March 2016. Simultaneously, the City requested that I convene an evidentiary hearing related to that video. For the reasons that I’m going to set out in my subsequent remarks, and more fully in a written order that has been filed as I speak, I’m going to deny the City’s request for the evidentiary hearing.
By now, I assume half the city has seen the video, as I have several times. But for those who haven’t had a chance to watch the video, I’ll set some context. And many of you understand these things from what you’ve even heard today, if never before. On March 18 of 2016, a meeting was attended by, among others, the City Attorney, Dr. Ginger, and representatives from APD.
HUNTSMAN NOT JUSTIFIED IN RECORDING GINGER
In the nearly two-and-a-half years since that process, this process began — actually, it’s three years right now, I think — I can only assume that there have been hundreds of such meetings. But this particular meeting was different. At some point during the meeting, Chief Huntsman put his lapel camera to a use for which it was never intended. He began to record the meeting without the knowledge of Dr. Ginger. It isn’t clear if the other attendees knew of this secret recording. But, most certainly, Dr. Ginger did not.
Based on my review of the complete 14-minute video, Chief Huntsman wasn’t justified in turning on his camera. I know what some of you who have seen the video are thinking: But wait, the video I saw was nine minutes long. Yes, I know, and I’m going to address that discrepancy as I go on.
In the 14-minute version of the video, there is nothing in the first five minutes to justify the Chief’s turning on his camera. After five minutes the discussion becomes heated. It does indeed.
GINGER IS BLINDSIDED
At that point, it’s obvious that Dr. Ginger feels blindsided by the City Attorney’s presentation to the city council just days before. The monitor accused the City Attorney of playing the rope-a-dope blame the monitor game. Much discussion followed, taking issue with the monitor’s use of the “game” metaphor. Toward the end of the video, Dr. Ginger said that he understood that APD could be collateral damage.
That meeting, which occurred 20 months ago, coupled with a more recent alleged comment, is why I’m holding you over late on a Thursday afternoon, after a long day. In my view, and contrary to the City’s assertions, the video doesn’t show that Dr. Ginger has any sort of a disqualifying bias against the City Attorney or APD.
Instead, the video shows that Dr. Ginger felt betrayed by the City Attorney’s failure to abide by a, as it’s quoted in the tape, “a no surprise agreement.”
And I hope none of you missed the irony here. In the video, Dr. Ginger is expressing his frustration at being blindsided by the City, at precisely the same time he’s being secretly recorded by the City to blindside him later.
GINGER IS FRUSTRATED
In the video, Dr. Ginger also says that he understands APD could be collateral damage. In context, the statement doesn’t mean to me, and it doesn’t seem to me a threat or an expression that Dr. Ginger is willing to sacrifice APD. Giving the monitor the benefit of that context, the statement, seems to me, means that he understands that by defending himself, he could potentially give ammunition to city council members who have problems with APD.
Clearly, Dr. Ginger was frustrated with the City Attorney. He was frustrated with what he perceived as gamesmanship and tactics. Far from suggesting bias, Dr. Ginger’s frustration is understandable. The City Attorney’s alleged tactics could disparage Dr. Ginger’s reputation in a manner harmful to the process of reforming APD. If the City successfully ruins Dr. Ginger’s reputation, then the legitimacy of this whole reform process is thrown into question. Would a discredited monitor’s positive report assure the public that APD is compliant with the CASA? And on the other hand, would a discredited monitor’s negative report stir many to double down on APD?
This is a case of Dr. Ginger defending legitimacy of the reform process. This isn’t a case of Dr. Ginger having a disqualifying bias against the City Attorney, or being willing to harm APD in the process of settling a score.
Turning to the “game” metaphor issue. Everyone here knows that when someone uses the word “game,” he is referring to tactics being taken for one side’s advantage or the other; not that you don’t consider the process you’re involved in seriously, or that Dr. Ginger considered the reform process to be a game that didn’t need to be taken seriously.
BRACK HUMILIATES HUNSTMAN
If there were no politics or optics involved, everyone in this room would freely admit this truth. But, unfortunately for Dr. Ginger, there are optics and politics involved. Chief Huntsman seized on Dr. Ginger’s “game” wording, when he said, quote, “I don’t view this as a game. I view this as my department, my city, my community. It’s not a game to me,” close the quote. It’s a noble sentiment, Chief, and one I’m sure that we all share. But the fact remains you knew that you were being recorded when you said it.
RECORDING A VIOLATION OF SETTLEMENT AGREEMENT
You say that you hit “record” because you felt Dr. Ginger was growing increasingly irritated, and exhibiting signs of escalating behavior. As I’m going to explain, the video, the whole 14-minute video, fails to support those claims. Not only was your decision to hit the record button unjustified in my mind, but there is also a strong argument that by recording the monitor during that meeting, you violated Paragraph 229 of the CASA that says, “On Body Recording Systems are only to be used in conjunction with official law enforcement duties, and not in any location where individuals have a reasonable expectation of privacy.” Now, you might think, Well, that wasn’t this place. We wouldn’t expect there was privacy in this setting. Except that one of the policemen on the tape talked about – and this is interesting to me, he used the same metaphor that Dr. Ginger is going to be hung up about here in a minute — that the city council members had an ax to grind against people at APD. That’s the first time we hear “ax to grind” in this process. Dr. Ginger’s is the second.
Here’s the bottom line. Dr. Ginger used the word “game” to take issue with the tactics of the City Attorney. Dr. Ginger’s word choice doesn’t mean that he doesn’t take his responsibilities as seriously as he should. And I think it’s silly to suggest otherwise. Anyone who believes that games and being serious about outcomes are mutually exclusive thoughts, ask Alex Bregman whether he was serious during Game 7 of the World Series.
There is also an allegation that an unnamed member of the monitoring team told an unnamed member of the APD staff, who told APD leadership that Dr. Ginger had a problem with the City Attorney, the Mayor, and the APD Chief. I find this multiple layered hearsay, with speculation about the mental state of the monitor, to be wholly unpersuasive, with less than zero evidentiary value.
Having said all this, I believe that a hearing would not be beneficial for the reform process. An evidentiary hearing on nothing more than what the City alleges in its motion would be no more than a distraction involving a cast of characters that is, to say the least, in flux.
Rightly or wrongly, Dr. Ginger has a problem with the City Attorney’s tactics. Such a problem does not betray a disqualifying bias on the part of the monitor.
It’s clear to me that Dr. Ginger takes his responsibilities seriously. He told APD during the meeting he was not going to give up on them. I would have everyone note that when he said that, he didn’t know he was being recorded. Dr. Ginger’s statement that he was not going to give up on APD shows to me that he cares about APD, and that he hopes APD can come to comply with the CASA.
CITY PLAYING GAMES, MANIPULATED EVIDENCE
In my view, the City is the one that’s playing games relative to this matter. After all, it’s the City that engaged in a secret recording of the monitor.
In the version of the video that the City released to the public, the first five minutes of the video is missing. In that nine-minute video that was uploaded to YouTube, the monitor is upset around the time that Chief Huntsman apparently starts recording.
But let’s not forget that context is king. In the five minutes that the City removed, Dr. Ginger makes understanding comments, and assures APD that the monitoring team is sympathetic to APD. He attempts to comfort the APD, by telling them that the monitoring team is not draconian; that everything does not have to be stellar, just acceptable. His tone is cordial. In fact, everyone’s tone is cordial, professional, and sometimes even lighthearted. Those five minutes of crucial context contradict the Chief’s claim that he only recorded the monitor because he was becoming irritated.
The City made two deliberate choices. They intentionally cut out five minutes of that recording, and then they chose to go public with the shortened nine-minute video. The question is why? It seems to me the monitor is being baited in that last nine minutes, knowing what we know about when the video really started. But the court of public opinion can weigh in on that. When the City went public with the shortened video, the City made its bed. And what could the City possibly have been thinking when it filed the 14-minute video and a supporting transcript that covered only the nine-minute segment. Let me be clear, if I haven’t been. The City filed a written transcript with the Court titled, “March 18, 2016 meeting.” That transcript only covered the shortened nine-minute version of the video. On the last page of the transcript the court reporter certified that she had, quote, “listened to the entire recording,” close the quote. And that the transcript was, quote, “a complete record of all material included on the recording.” This tells me that the City showed the court reporter the same version of the nine-minute video that it made public. I’m left to speculate about the City’s intention.
So after recording the monitor and manipulating the record, what does the City do? It waits for 20 months, biding its time until the eve of Dr. Ginger’s sixth report, and the election, before releasing the nine-minute video to the public.
The City’s filing says that the City did not want to make the video public, but felt compelled to do so. I haven’t heard any legitimate reason why the City was compelled to make the video public. I think the public release of the less than complete video was a transparently political ploy.
And as if the actions I’ve just described weren’t enough, I’m also alarmed by this suspicious timing.
In addition to the motion for the hearing, and all the attendant machinations I’ve described, The City has requested an audit of the monitor, even though the CASA says, quote — well, it delineates the process that the City is required to follow if it believes that there is an issue with how the monitor is carrying out his obligations. And all of this comes right prior to the release of the monitor’s sixth report and the election.
ATTEMPT TO INTIMIDATE GINGER
Taken together, these actions by the City, and the timing thereof, certainly could be construed as an attempt to undermine and intimidate the monitor.
Given what is at stake, these games aren’t acceptable.
The Justice Department has said that the APD has engaged in a pattern and practice of excessive force, including deadly force. If the City and APD are spending what are obviously limited resources, time, and energy playing these games, and obstructing the monitor, instead of focusing on reform, then they’re letting lots of folks down.
Every day the brave men and women of the Albuquerque Police Department, willing to lay down their lives for strangers, they deserve better. And the patient citizens of Albuquerque deserve better. They waited years for the police department that they deserve, a police department that provides constitutional, effective, high quality service to all Albuquerque residents.
I’m too old to be naive. I knew that Dr. Ginger wasn’t going to be greeted with open arms and the key to the city. It’s been three years. We should all be tired of the toxic environment, the bickering, the passive aggressiveness, the resistance, and the game. It’s time to move beyond all of that.
REASON TO BE BIASED
Is Dr. Ginger biased against the APD? Yes, in the sense that the APD that was called out by DOJ for a culture of violence and excessive use of force can’t continue. And yes, in the sense that the former culture must give way to reform. Yes, as it relates to the obvious attempts at resisting reform. But I find nothing to suggest that he is biased as it relates to the citizens of Albuquerque, to the good men and women of APD, who were never a part of that former culture, and only want to be our guardian angels.
I deny the City’s request for an evidentiary hearing.
Like Dr. Ginger, I have not and will not give up on the Albuquerque Police Department. Today, there is reason for hope. There was an election with a new cast of characters. Somebody else said it today, I’ll say it, too. Let’s hit the reset button.
I challenge the incoming mayor, the new police chief, and the City Attorney — if she remains in her position — to refocus APD’s and the City’s efforts on reform.
Before I conclude, I need to make something really clear. This sort of conduct, secretly recording conversations, the City Attorney says that hasn’t ever happened before. I want to take you at your word. But here’s the deal: If there is any such recording, other recording of the monitor, or of me, I want to know about it immediately in camera. Nobody goes public with anything. I want it made available to me. And given all these developments, I’m not sure why I would think I was exempt from this sort of thing.
PRAISE FOR EDEN
Finally, on a more positive note, a word about the Chief. He’s announced his retirement, which takes effect a few days from now. Chief Eden has spent his entire 40-year career in law enforcement in New Mexico, most of it in high profile positions, including the US Marshal for eight years, where one of his goals in life was keeping me and my family safe; the Secretary of the Department of Public Safety; and finally, the Chief of APD.
Within days of his being named the new chief, the DOJ report came out. It’s not clear that he knew it was coming when he signed on, but I suspect he did. No one could have blamed you, Chief, if you decided to just sit this one out. But that wouldn’t have been your way. You jumped into the storm. No one should know better the slings and arrows of high profile law enforcement than Chief Eden. He’s always known that with the praise also comes condemnation.
History is going to be the judge of his legacy, as it relates to this project; not me. But we would all be wrong if we didn’t acknowledge his 40 years of service to the people of New Mexico, and wish him and his family Godspeed in his retirement.
Unless there is anything else, we’re adjourned.