On Friday, November 2, 2018 Federal Court Appointed Monitor Dr. James Ginger filed his 8th report on the Albuquerque Police Department’s (APD) compliance levels with mandatory requirements of the Court-Approved Settlement Agreement (CASA).
You can read the entire 239-page monitor’s report here:
Federal monitor James Ginger gave the 11-month-old Keller administration and APD positive high marks in his report on the department’s compliance with U.S. Department of Justice mandated reforms.
The 8th report from the monitor is remarkable and impressive turn around given that it is a departure from virtually every other previous 7 reports filed by Federal Monitor James Ginger.
The PROSCRIPT below highlights language from previous monitor reports.
A FULLY COMMITTED APD EXECUTIVE STAFF
Ginger reported in no uncertain terms that the city is in a far different position in the reform efforts than it was a year ago under the previous Republican Mayor Berry Administration and former Republican operative APD Chief Gordon Eden.
In his Executive Summary, Dr. Ginger reported:
“The compliance efforts we have observed during this reporting period differ substantively from those we had observed earlier in the monitoring process. We have found the current APD executive staff to be fully committed to CASA compliance processes. Most of the new command and oversight cadres also appear to be fully committed to moving APD forward in its compliance efforts. We have found extremely attentive audiences for our compliance process advice, and in most cases, APD has moved forward adroitly as it implements responses to that advice.”
“The current leadership grasps key issues involved in the compliance process and they are quickly building effective problem-solving mechanisms. The monitoring team will continue to support those efforts through discussions, clarifications, and recommendations regarding effective processes observed in other agencies undertaking similar project.”
“Given the scope and nature of issues confronted by APD at this time last year, these results are exceptional. … APD has, over the past year, worked closely with the monitoring team to assess the team’s findings, carefully considered response modalities for the information contained in the team’s findings and discussions, thoughtfully considered implementation strategies to improve performance, and held managers and supervisors accountable for implementing change strategies to respond to the monitoring team’s intensive technical assistance regarding a ‘way forward’ toward compliance.”
“The result of the APD’s focus and commitment goes beyond the simple increase of “in-compliance” findings for this report. The results have been generated by a careful and thoughtful analysis of problem-solving methodologies designed to address carefully the findings conveyed to APD by the monitoring team. Instead of simply applying random strategies to identified problems, the APD has taken a holistic, thoughtful, and, in many cases, a data driven process, that carefully considers what’s been done elsewhere in American policing that has been successful in solving problems and issues similar to those confronting the APD.”
(See Page 4 of Report)
Ginger reported that the statistics he uses to audit, monitor and track progress show that APD has achieved 99.6% compliance with “primary tasks”, 75.4% secondary compliance and 59.5% operational compliance.
What the 59.9% operational compliance means is that sworn police officers have been trained on new policies approved by the monitor and police are being held accountable for violations of those policies.
The 59.9% operational compliance reported in the settlement agreement is a 12% increase from last year.
Operational compliance under the CASA also means officers follow policies outlined in the settlement agreement and, when they don’t, supervisors identify and correct that behavior.
This is the first time APD has achieved above 50% operational compliance.
To complete the CASA and have the case dismissed, APD must reach and maintain 95% compliance in all three categories.
OTHER PROGRESS MADE
Dr. James Ginger noted that big accomplishments over the past year include:
1. Recruiting a new Academy Commander who possesses direct, successful experience in curriculum development, delivery, and assessment;
2. Implementing a well-structured and staffed unit designed to reduce the long-standing backlog of use of force incidents;
3. Researched and adapted implementation strategies informed by the experiences in other police agencies working through similar reform processes;
4. Enhancement of the Compliance Bureau staffing and organization in a manner that should drastically improve compliance-related performance;
5. Completion on initial work for restructuring the documentation of training processes, including improved training plans and revised internal responsibilities and processes;
6. Strong movement toward community-based problem-oriented policing practices designed to address community concerns and priorities;
7. Reorganization and staffing of the Internal Affairs processes designed to improve the quality of internal investigations.
(See page 6 of report.)
Ginger gives APD credit for a stronger push toward a community policing.
PERSISTENT PROBLEM AREAS IDENTIFIED
The Monitor’s Report noted 4 persistent problem areas, most carried over from the previous Republican Berry administration, but which present clear obstacles to effective compliance with the CASA:
1. Failure to develop a strong self-auditing function.
2. Issues relating to identification, assessment and action on events constituting alleged policy or rule violations by sworn personnel within the 90-day limit established by union contract.
3. The use of “Additional Concerns Memos” to dispose of policy violation issues, as opposed to actual findings and corrective action.
4. An apparent “uptick” in filed “prohibited practice” complaints by the police union with six new prohibited practice complaints pending resolution at the time of the publication of the report.
(See page 7 of report)
MAYOR KELLER REACTION TO NOVEMBER 2, 2018 MONITOR’S REPORT
In commenting about the positive aspect of Ginger’s report, Mayor Tim Keller had this to say:
“I think all parties have a different approach since we came into office. … We started really in a hole. We came from a place of mistrust and frustration among all parties. That’s not really measurable, but the fact that we’re not in that place now was one of the goals we wanted to accomplish. … One of the biggest issues and toughest nuts to crack in any compliance effort in any city … is always around use of force, … I think the biggest victory for Albuquerque has been that we’ve able to come together on a use-of-force policy.”
POLICE UNION RAINS ON FEDERAL MONITOR’S PARADE
During a September 10, 2018 status conference, Federal Monitor James Ginger reported there remained a problem with the “use of force policy” when he said:
“I hate to be the one to rain on the parade, but I just simply have to report the facts. I received the latest use-of-force document, 2-52, from the parties [including the police union] last week . I found it lacking in multiple key aspects. It was missing key components. Issues that needed to be dealt with in a Use-of-Force Policy were not dealt with. I had questions about enforceability. So I’m working on writing the resolution document … I found it necessary to basically rewrite the policy. … “.
In his November 2, 2018 report, Dr. Ginger acknowledged the city, APD and the Department of Justice, the police union and monitoring team finally agreed to a new use-of-force policy after well over a year of back and forth negotiations.
What Ginger did not highlight is that for the past 3 years, the Police Union has been at the negotiating table demanding changes to the “use of force” and “deadly force” policies claiming the policies were unworkable and interfered with rank and file police officers doing their jobs.
In his November 2, 2018 report, Ginger expressed concerns that there are still issues with identifying, assessing and taking action on officers who violate policies within the 90-day time frame created in the union contract between the police union and the city, and there has been an “uptick” in “prohibited practice” complaints filed by the police union.
APD command staff still has issues with holding officers accountable when the violate policies, especially for use-of-force violations.
According to Ginger, APD is still issuing ‘Additional Concern Memos’ “to dispose of policy violation issues, as opposed to actual findings and corrective action.”
Ginger also said APD still needs to create a strong “self-auditing” system to resolve policy violation issues.
Police Union President Shaun Willoughby said he was “surprised” to find that Ginger was critical of the police officers’ union.
According to Willoughby, the complaints mentioned in Ginger’s November 2, 2018 report are standard when the union believes the police administration violated either the contract between the police union and the city or the city’s own labor rules.
According to Willoughby:
“There is no relevance in the [Court Approved Settlement Agreement] as it relates to our prohibited practice complaints. … It’s pretty shocking to us that … he has identified the union as a target to talk negatively about.”
SEPTEMBER 10, 2018 STATUS CONFERENCE
During a September 10, 2018 status conference with the federal judge overseeing the reform process, the federal monitor testified that a group of “high-ranking APD officers” within the department are trying to thwart reform efforts.
The entire 53-page transcript of the conference call can be read here:
During the court hearing it was revealed that the group of “high-ranking APD officers” are APD sergeants and lieutenants and because they are part of the police union they remain in their positions and cannot be removed.
During the September 10, 2018 status conference, APD Chief Michael Geier also reported to Judge Brack that he has also noticed some “old-school resistance” to reforms mandated by the CASA.
During the last 11 months, Chief Geier has replaced a number of commanders with others who agree with police reforms, but not many sergeants nor lieutenants who may be resisting the reforms.
Geier has said changes to several commander positions will over time ensure that the entire chain of command is buying into the “new” APD.
Federal Monitor Ginger referred to the group of union members as the “counter-CASA effect.”
Ginger described the group’s attitude as “certainly ambivalent” to the reform effort and the CASA.
Geier has said changes to several commander positions will over time ensure that the entire chain of command is buying into the “new” APD.
Ginger described the group’s attitude as “certainly ambivalent” to the reform effort and the CASA.
The transcript of the September 10, 2018 proceeding reflect that Dr. Ginger told Judge Brack:
“The ones I’m speaking of are in critical areas and that ambivalence, alone, will give rise to exactly the sort of issues that we’ve seen in the past at the training academy. … So while it’s not overt, you know, there’s nobody sabotaging computer files or that sort of thing, it’s a sort of a low-level processing, but nonetheless, it has an effect. … It’s a small group, but it’s a widespread collection of sworn personnel at sergeant’s and lieutenant’s levels with civil service protection that appear to be, based on my knowledge and experience, not completely committed to this process … It is something that is deep-seated and it’s a little harder to find a quick fix or solution to it, but I think, in the long term, by having this foundation with new leadership and a new direction from the top down, we should be able to get through this and survive it.”
In response to Dr. Gingers accusation, Police Union President Shaun Willoughby proclaimed that all Albuquerque police officers throughout the ranks have bought into the reform effort and that it would be “ludicrous” to think some sergeants and lieutenants are trying to stop the process.
Willoughby went on to say:
“It gets to a point of being so frustrating that it’s almost comical. … It makes it sound like there’s an insurgency … Officers have done so much work [implementing the reforms]. They have done the heavy lifting.”
COMMENTARY AND ANALYSIS
Over 5 years ago, a Department of Justice (DOJ) investigation found a “pattern and practice of excessive force” and a “culture of aggression” within the Albuquerque Police Department (APD).
Albuquerque is one of 18 law enforcement agencies throughout the country operating under a consent decree brought on by a DOJ investigation that found systemic problems.
In APD’s case, the DOJ found a “culture of aggression” within APD after reviewing as many as 18 “deadly use of force cases” and other cases of “excessive use of force cases.
The City of Albuquerque has paid out $61 million in settlements over the last 9 years involving 41 police officer involved shootings.
The major goal of the Department of Justice consent decree is to correct a pattern of the use of “deadly force” and “excessive force” and a culture of aggression.
The use of deadly force and excessive use of force policies with training is the primary purpose of the CASA settlement and where “the rubber hits the road.”
KUDOS TO MAYOR TIM KELLER AND APD CHIEF MICHAEL GEIER
To quote Senator John Mc Cain, “elections have consequences.”
It was Republican Mayor Richard Berry Administration that negotiated and entered into the Court Appointed Settlement Agreement (CASA).
The Berry Administration paid over $1 million to two out state “experts” to negotiate the settlement for the city that could have been just as easily negotiated by the City Attorney or other recognized Civil Rights experts in New Mexico.
Mayor Berry appointed as APD Chief Republican operative Gordon Eden as Police Chief and as Assistant Chief Robert Huntsman, an Eden loyalist.
Eden had absolutely no prior experience running a municipal police department and he for 3 years was an absolute disaster.
Berry and Eden both kept command staff in place who created, assisted or who did not stop the culture of aggression.
Assistant Chief Huntsman was the commander in charge of the SWAT Unit that was involved with a number of the “deadly use of force” cases investigated by the DOJ.
Notwithstanding the Berry administration negotiating the CASA, they never were fully committed to the DOJ reforms.
For a full three years, the Berry Administration and APD under the leadership of Chief Eden and Assistant Chief Huntsman did whatever they could to “delay”, “deflect”, “subvert”, and use “covert orders”, all words used by the monitor, to undermine all the reforms under the consent decree.
Lest anyone forget, Assistant Chief Huntsman secretly recorded contentious meetings between police officials and Ginger and the City Attorney proceeded to file a Motion to have Dr. Ginger removed as the Federal Monitor alleging, he was biased.
Without question, public safety, APD and crime rates were the single biggest issues in the 2017 race for Mayor.
Democrat Candidate for Mayor Tim Keller campaigned on “police reform” and pledge to return to community-based policing, increase the number of sworn police and reduce crime rates.
Democrat Mayor Keller was elected with 62.2% mandate over Republican Dan Lewis.
Mayor Keller after 10 months in office has held on to his popularity and has a 62% approval rating according to an Albuquerque Journal poll.
Keller was sworn in on December 1, 2017 as the city’s 7th Mayor of Albuquerque.
Soon after assuming office, Mayor Keller proceeded to make major management changes in APD’s command staff.
On March 15, 2018, Mayor Tim Keller attended for the first time a Court Approved Settlement Agreement status conference hearing appearing along with Senior Public Safety Officer James B. Lewis, Chief Michael Geier and City Attorney Esteban Aguilar, Jr.
What was revealed for the first time at the March 15, 2018 hearing was that Mayor Tim Keller reached out back in December, 2017 after he was elected and had meetings with the parties and the federal judge overseeing the reform process.
During the March 15 federal court hearing, Mayor Keller affirmed his commitment to the DOJ reforms and went so far as to say that he took “ownership of the reform process” and acknowledged he will be judged by the progress APD makes or doesn’t make during his first term in office.
Federal Judge Robert Brack said he was so impressed with the new administration’s commitment to the reform process that he decided to keep the case after he goes on Senior Status in November and not give it to another federal judge.
In a November 4, 2018 Guest Editorial Comment in the Albuquerque Journal, Mayor Tim Keller affirmed his commitment to the DOJ reforms by writing:
“… I personally promised we would own police reform, and we are making significant progress. The latest monitoring report acknowledges the breadth of changes and [my] commitment to finishing the job of meeting the DOJ requirements. …”
You can read Mayor Keller’s full guest column at the below link:
Mayor Tim Keller and Chief Michael Geier can take major credit and great pride with the progress that has been made during their first 11 months in office.
In Keller’s own words, going from a “place of mistrust and frustration” to one of cooperation and accomplishment when it comes to APD is a major accomplishment for the Keller Administration.
No doubt Keller and Geier recognize there still is more that must be done with APD and there still a long way to go before they can say “Mission Accomplished” when it comes to APD and our high crime rates.
They both still have to rebuild practically from the ground up a new department with a new generation of police officers to return to community base policing,
Congratulations to Mayor Keller and Chief Geier in the progress they have made with the DOJ reforms.
POLICE UNION CONTINUES TO IMPEDE REFORM PROCESS
It is “ludicrous”, to quote Police Union President Shaun Willoughby, to believe that he and the police union are anywhere near being shocked about being a “target to talk negatively about” given what Dr. Ginger and Chief Geier testified to at the September 10, 2018 status conference with the Federal Judge overseeing the consent decree.
The APD Union was not a named party to the original civil rights complaint for excessive use of force and deadly force filed against the city by the Department of Justice.
Soon after the DOJ initiated the federal lawsuit against APD and the City, the police union intervened to become a party to the federal lawsuit in order to advocate for union interests in city policy and changes to the “use of force” and “deadly force policies.”
The Police Union, despite public comments of cooperation, has never fully supported the agreed to reforms.
If anything, the Union contributed significantly to the delay in writing the new use of force and deadly force policies.
The union leadership has always been at the negotiating table and for a full year were involved with the drafting of the “use of force” and “deadly use of force” policies.
More than any other party in the federal law suite, it has been the police union that has contributed to the one-year delay in writing the policies by objecting to many provisions of the policies.
The police union has repeatedly objected to the language of the use of force policies asserting the policies are unreasonable or did not conform to legal requirement and demanding changes.
Union obstruction and delay tactics regarding the “deadly use of force policy” became so bad that the federal monitor at the September 10, 2018 status conference stated the submitted use of force was missing key components to the point he had to re write the policy and said:
“There were, at last count, 50-plus changes that I saw as needing to be made. So, it’s been a fairly complex process. Those have been made. They’re in draft form. As soon as I finish proofing that draft, it will go out to the parties immediately.”
The union leadership has attended and has sat at counsel table during court hearings and Federal Monitor presentations on his reports.
During all the Court proceeding where the federal monitor has made his presentation to the federal court, the police union has made its opposition and objections known to the federal court regarding the use of force and deadly force policies as being too restrictive with rank and file claiming rank and file cannot do their jobs even with training on the policies.
All previous Federal Monitor’s status reports were scathing against the city accusing the APD chain of command of delaying and obstructing the DOJ reform process, yet the police union had no comment and took no position.
When the previous administration accused the federal monitor of biasness and attempted to have the monitor remove, the police union remained totally silent implying its support to have the federal monitor removed.
The police union and its leadership have said in open court that the mandated reforms under the consent decree are interfering with rank and file officer’s ability to perform their job duties.
During the next contract negotiations with the police union, the Keller Administration need to seek to have removed from the bargaining unit all Sergeants and Lieutenants in that they are part of management.
Now that the “use of force” and “deadly force policies” have been approved and are now a reality, the Keller Administration should consider seeking to having the Police Union removed as a party to the federal lawsuit, consent decree and CASA negotiations seeing that there is very little need for the delay and obstruction tactics the police union engages in to stop the reforms.
POSTSCRIPT ON PREVIOUS FEDERAL MONITOR REPORTS
In his second report to the federal court, Federal Monitor James Ginger accused the City Attorney of what he called, “delay, do little and deflect” tactics saying his relationship with her was “a little rougher than most” compared with top attorneys in other cities and where he has overseen police reform.
The July 1, 2016 federal monitor’s third report states “Across the board … the components in APD’s system for overseeing and holding officers accountable for the use of force, for the most part, has failed … the serious deficiencies revealed point to a deeply-rooted systemic problem. … The deficiencies, in part, indicate a culture [of] low accountability is at work within APD, particularly in chain-of-command reviews. …”
The November 1, 2016 fourth federal monitor’s report states that when “excessive use of force” incidents are investigated by the APD Critical Incident Team, it “[deploys] carefully worded excuses, apparently designed not to find fault with officer actions” and “[uses] language and terminology apparently designed to absolve officers and supervisors of their responsibility to follow certain CASA (Court Approved Settlement Agreement) related provisions.
The May 1, 2017 fifth report was the most damning and critical report to date when the monitor found that APD “subverted” the reform process by issuing “covert special orders,” denying the existence of the orders, and APD exhibiting a “near total failure” to accept civilian oversight.
The Federal Monitor stated last year in his November, 2017 report:
“Eventually, the monitor will no longer be engaged to provide an oversight function for APD. … That role will need to be provided by supervisory, command and executive personnel. At the current time, such oversight is sorely absent” and “well below what is expected at this point” in the process. … In short we are not yet convinced that APD screens, evaluates and classifies use of force incidents in a manner consistent with the CASA (Court Approved Settlement Agreement).”
For a related blog article on Police Union see: