Albuquerque is one of 18 law enforcement agencies throughout the country operating under a federal Court Approved Settlement Agreement (CASA) brought about by a Department of Justice (DOJ) investigation that found systemic problems and a “culture of aggression” within its police department.
In November, 2014, the CASA was entered into between the City of Albuquerque, the Albuquerque Police Department (APD), the DOJ and approved by a federal judge.
The CASA provides for termination of the agreement as follows:
“The City will endeavor to reach full and effective compliance with this Agreement within four years of its Effective Date. The Parties agree to jointly ask the Court to terminate this Agreement after this date, provided that the City has been in full and effective compliance with this Agreement for two years. “Full and Effective Compliance” shall be defined to require sustained compliance with all material requirements of this Agreement or sustained and continuing improvement in constitutional policing, as demonstrated pursuant to the Agreement’s outcome measures.” (Page 103 of CASA)
After review of the DOJ investigation report, the CASA mandates, and the reforms implemented, a conclusion that can be reached is the spirit and intent of the CASA has been attained and it should be terminated sooner rather than later.
The City and APD need to seek a stipulated and agreed to Order of Compliance with the DOJ from the CASA.
A review of the DOJ investigation and the terms of the CASA are in order.
The DOJ INVESTIGATION REPORT
April 10, 2014, the United States Department of Justice (DOJ), Civil Rights Division, submitted a scathing 46-page investigation report on an 18-month civil rights investigation of the Albuquerque Police Department (APD).
The investigation was conducted jointly by the DOJ’s Washington Office Civil Rights Division and the United States Attorney’s Office for the District of New Mexico.
You can read the entire report here.
The DOJ investigation included a comprehensive review of APD’s operations and the City’s oversight systems of APD.
The DOJ investigation “determined that structural and systemic deficiencies — including insufficient oversight, inadequate training, and ineffective policies — contribute to the use of unreasonable force.”
Based on the investigation and the review of excessive use of force and deadly force cases, the DOJ found “reasonable cause to believe that APD engage[d] in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment … . and [the] investigation included a comprehensive review of APD’s operations and the City’s oversight systems.”
Federal civil rights laws make it unlawful for government entities, such as the City of Albuquerque and APD, to engage in a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution and laws of the United States.
The investigative report found a pattern or practice of use of “deadly force” or “excessive use of force” in 4 major areas:
1. The DOJ reviewed all fatal shootings by officers between 2009 and 2012 and found that officers were not justified under federal law in using deadly force in the majority of those incidents. Albuquerque police officers too often used deadly force in an unconstitutional manner in their use of firearms. Officers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force.
2. Albuquerque police officers often used less lethal force in an unconstitutional manner, often used unreasonable physical force without regard for the subject’s safety or the level of threat encountered. The investigation found APD Officers frequently used take-down procedures in ways that unnecessarily increased the harm to the person. Finally, APD officers escalated situations in which force could have been avoided had they instead used de-escalation measures.
3. A significant number of the use of force cases reviewed involved persons suffering from acute mental illness and who were in crisis. The investigation found APD’s policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved.
4. The investigation found the use of excessive force by APD officers was not isolated or sporadic. The pattern or practice of excessive force stemmed from systemic deficiencies in oversight, training, and policy. Chief among these deficiencies was the department’s failure to implement an objective and rigorous internal accountability system. Force incidents were not properly investigated, documented, or addressed with corrective measures by the command staff.
What differentiates the DOJ’s investigation of APD from the other federal investigations of police departments and consent decrees is that the other consent decrees involve in one form or another the finding of “racial profiling” and use of excessive force or deadly force against minorities.
The DOJ’s finding of a “culture of aggression” within APD dealt with APD’s interactions and responses to suspects that were mentally ill and that were having psychotic episodes.
COURT APPROVED SETTLEMENT AGREEMENT (CASA)
The DOJ Court Approved Settlement Agreement (CASA) was negotiated over a 6-month period after the DOJ released its investigation report finding that APD engaged in a “pattern and practice” of unconstitutional “use of force” and “deadly force.”
The City retained outside counsel paying two individual’s considered national experts $1 Million with the contract not awarded by the customary Request for Proposals (RFP) preocess.
The 106-page negotiated CASA agreement was filed on November 10, 2014.
Under the CASA, the assigned Federal Judge is given the power to enforce terms of the agreement and issue orders for compliance and issue sanctions for noncompliance.
Major reform mandates under the settlement include:
1. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re writing and implement new use of force and deadly force policies.
2. The CASA mandates the teaching of “constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with the mentally ill.
3. The City agreed that APD would overhaul and rewrite all of its “use of force policies” and “deadly force” policies, recruitment procedures, training, internal affairs procedures and implement field supervision of officers.
4. Stricter training and restrictions on the use of nonlethal force is required under the CASA, and it requires more training and controls over the use of Tasers by officers along with quarterly audits of their use.
5. The city agreed to the creation of a Police Oversight Board (POB) as a civilian review agency that independently reviews citizen complaints, serious uses of force and officer-involved shootings by APD. The civilian agency also monitors, reviews and make recommended changes to APD policy on use of force.
6. Under the CASA, the city agreed to the creation of Police Civilian Advisory Councils, one in each of the APD area commands, designed to increase community interaction.
7. The CASA broadens and removes obstacles to the types of civilian complaints Internal Affairs and the civilian oversight agency can review.
8. The CASA provides for the appointment of a Federal Court Monitor selected by agreement of the parties with the City to pay for the auditing services of the federal monitor. The primary duties and responsibilities of the federal monitor is to report directly to the federal judge on APD’s compliance with the mandatory reforms.
9. The agreement mandates that APD adopt a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented and outlining details how use of force cases would be investigated. It requires far more reporting by officers and field supervisors and also requires detailed reviews of those reports up the chain of command within the department. Sergeants and lieutenants are required to be much more involved in field supervision and review of use of force by officers.
10. Under the agreement, officers who point their firearms at a person, but don’t fire, must fill out a use of force report that will be reviewed by field supervisors. That review is separate from a city civilian police oversight agency that will be independent of the department and will review police use of force incidents as well as civilian complaints.
11. The City agreed to create a new “Use of Force Review Board” to oversee all internal affairs investigations of use of force and deadly force. A new chain of command for the review of Internal Affairs reports of officer-involved shootings was created that reviews the Internal Affairs Reports and makes recommendations on discipline or asks for further investigation of an incident, and the board makes recommendations on discipline to the APD Chief. The Use of Force Board is required to make quarterly reports after reviewing all use of force reports to identify trends and policy changes.
12. APD agreed to revise and update its policies on the mandatory use of lapel cameras by all police officers.
13. Under the CASA, the City agreed to abolish the Repeat Offenders Project, known as ROP, within three months of signing the agreement for the reason that members of the unit were involved in a number of the controversial shootings investigated by the DOJ.
14. The agreement provides that if the city fails to implement the reforms or shows bad faith in the implementation of the CASA, the DOJ has the option of filing a federal lawsuit against the city over the city’s unconstitutional policing practices found by the DOJ investigation.
15. Certain types of hand-to-hand techniques are barred under the CASA unless the officer is in a situation that require the use of lethal force if it were available. Neck holds, sometimes called chokeholds, are explicitly forbidden to be used by officers except in situations where lethal force would be authorized.
16. A major change in the CASA bans APD officers from firing their weapons at moving vehicles in all but life-threatening situations.
The CASA provides that it is “designed to ensure police integrity, protect officer safety, and prevent use of excessive force, including unreasonable use of deadly force, by APD.”
The settlement agreement requires APD to strive and use its best efforts to come in compliance with all requirements within four years, and if that were to occur, the case would be dismissed.
APD REFORMS FOR INTERACTIONS WITH MENTALLY ILL
A major finding of the April 14, 2014 DOJ Investigation report was that too many APD police officers use of force incidents involved people with mental illnesses or with behavioral disorders.
Under the CASA, the city agreed to form a Mental Health Advisory Committee.
The Mental Health Advisory Committee was to have a broad membership coming from within the department, the community and from mental health agencies to review department policies, recommend changes and keep the department abreast of new developments and issues in dealing with the mentally ill.
Under the CASA, all sworn officers received 40 hours of behavioral health and crisis intervention training, and new 911 operators received 20 hours of behavioral health training.
APD was required to increase the number of officers assigned to the Crisis Intervention Teams (CIT) and developed policies and procedures designed to clear lines of authority in the field in dealing with people who are mentally ill.
Like other parts of the stipulated agreement, the mental health portions required the department to collect and track data on calls for trained crisis intervention officers and submit the information to the Federal Monitor for the audits.
The CASA mandated APD to beef up its contacts with the chronically homeless and individuals with mental illness who have a history of law enforcement encounters in order to help connect these individuals with mental health service providers.
The department also is required to develop protocols addressing situations involving barricaded, suicidal subjects who are not posing an imminent risk of harm to anyone except themselves.
FEDERAL COURT APPOINTED MONITOR
The CASA mandated the appointment of a Federal Court Monitor agreed to by the parties who would report directly to the Federal Court.
On April 14, 2015 the city entered into a 4-year contract negotiated by the Berry Administration to pay a federal monitor $4.5 million over 4 years and the city agreed to assume all costs for the auditing services of the Monitor.
The contract in fact hired an entire team of experts not just one person.
A misconception is that the Federal Court took over APD and that the Federal Monitor has management and control over APD which is not remotely near the truth.
No “special master” appointed by the court that took over APD nor its management.
Under the settlement, the Federal Court Monitor does not have any management, authority nor control over APD, its employees and is not in the “chain of command”.
The Federal monitor was not given any authority to give orders to APD personnel and has no authority to impose discipline on APD personnel.
Under the CASA, the primary responsibility of the Federal Monitor is to gather statistical data, audit performance of APD and report the Federal Court on APD’s progress on implementing the mandated reforms.
APD CONFLICTS WITH FEDERAL MONITOR
Since selection and appointment, the Federal Monitor has submitted to the Federal Court 8 auditing reports on the status and progress APD has made with the reforms.
Five of the first six federal monitor reports were severely critical of APD’s compliance with the CASA.
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 attorneys in other cities where he has overseen police reform.
In the July 1, 2016 third progress report the federal monitor found “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.”
In November 1, 2016 fourth progress report, the federal monitor found 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 related provisions”.
DRAMATIC REVERSAL WITH CITY COMPLIANCE IMPLEMENTING REFORMS
On March 15, 2018, a little over 3 months after Mayor Tim Keller was sworn into office and appointment a new APD Chief, a status conference was held with the Federal Court on the progress made in implementing the DOJ mandated reforms.
The March 15, 2018 status conference was in very sharp contrast to the one held a few months earlier in November, 2017 where Federal Judge Brack eviscerated and admonished the former Administration and the former City Attorney and Assistant APD Chief for secretly recording the Federal Monitor in order to show bias and have him removed as the monitor.
Three major changes to the DOJ consent decree were reported during the March 15, 2018 hearing:
1. A compliance bureau had been established within APD, something the Federal Monitor had recommended from day one and that was totally opposed to and resisted by the prior administration.
2. The new “use of force” policy was finalized to streamline the investigative process defining 3 separate levels of use of force and the process how they would be investigated.
3. The Federal Monitor suspended preparing six-month reports and the monitor’s consulting firm instead provided “technical assistance” to APD as opposed to performing audits and gathering data.
The Federal Monitor was granted permission not to release a seventh progress report but instead issue two “mini-reports”, one in May and on in August.
EIGHTH FEDERAL MONITORS REPORT
On November 7, 2018, the Federal Monitor’s 8th Report on the compliance levels of APD and the City with Court-Approved Settlement Agreement was filed with the federal court.
You can read the full report here:
In the 8th report, the Federal Monitor gave the Keller Administration high marks regarding APD’s compliance with a settlement agreement.
According to the 8th report, APD was in a far different position in the reform project than it was the year before under the previous Mayor and Police administration.
Federal Monitor James Ginger reported:
“Given the scope and nature of issues confronted by APD at this time last year, these results are exceptional.”
In the November 14, 2018 8th monitor’s report, the monitor reported APD was in “Operational Compliance” with the settlement agreement 59.2% of the time meaning officers followed policies outlined in the settlement agreement and when they did not, supervisors identified and corrected the behavior.
Statistics in the report used to track progress showed that APD:
Achieved 99.6% compliance with primary tasks;
A 75.4% secondary compliance and
A 59.5% operational compliance.
According to the report, it was the first time APD achieved above 50% operational compliance.
To complete the reforms, APD must reach and maintain 95% compliance in all three categories: Primary Tasks, Secondary Task Compliance and Operational Compliance.
APD has achieved compliance in one category and is significantly closing the gap in the other two.
USE OF FORCE REPORTS
Under the CASA, a yearly “Use of Force” Report prepared by APD is mandatory.
APD did not published a Use of Force Annual Report since 2015 with the primary reason being that the previous administration failed to implement adequate data gathering processes and procedures for accurate reporting.
After more than two years, the Albuquerque Police Department (APD) released a “Use of Force Report” combining a single report for the years 2016 and 2018.
You can read the entire Use of Force Report here:
General findings contained in the report can be summarized as follows:
1. Use of force was low for both years of 2016 and 2017.
2. APD officers were dispatched to approximately 450,000 calls to provide service in 2016 and that number increased to 480,330 in 2017.
3. Individuals involved in uses of force represented less than one tenth of one percent (0.09%) of those dispatched calls which was an increase from 2015. The 2015 report found that .04% of dispatched calls resulted in an officer using force.
4. The 2015 report found .04% of dispatched calls resulted in an officer using force. City officials believe the increase in use of force 2015 over 2016 and 2017 is likely due to more accurate reporting.
5. Fewer than 2% of all APD arrests involved use of force.
6. In 2016, 48.5% , of people involved in use of force cases were unarmed but about 30% were classified as “unknown.”
7. In 2017, 74.8% of people involved in use of force cases were unarmed.
8. In 2016 and 2017, there were three times as many use-of-force incidents as there were “show of force incidents”, defined as an officer pointing a firearm or other impact weapon at a person. (NOTE: The 2015 Use of Force Report, compiled by the previous administration does not track “shows of force” incidents which explains the increase according to the report.)
9. From 2016 to 2017, show of force incidents rose 35% while at the same time use of force incidents remained constant.
10. Firearm discharges made up to 2% of all use of force cases over the two years, but still rose slightly from 2016 to 2017.
11. Empty-hand techniques such as strikes, grabs, kicks, take downs and distraction techniques made up the majority of use of force cases at 70% in 2016 and 60% in 2017.
12. Fewer people were injured in use-of-force cases. In 2016, 68% of the injured needed to be hospitalized while in 2017, 94% needed to be hospitalized.
13. APD Officers were injured in 23% of use of force cases but had to be hospitalized in less than 3% of those cases.
14. Use of electronic control weapons (TAZERS) increased while other types of use of force decreased.
The mental health portions of the CASA, like other parts of the stipulated agreement, requires APD to collect and track data on calls for trained crisis intervention officers and submit the information to the Federal Monitor for the audits.
When you read and review the entire 2017- 2018 consolidated “Use of Force Report”, a major omission in the report is that there are no statistics regarding APD’s crisis intervention incidents and interactions with the mentally ill, including none by the SWAT unit.
The 2018 Use of Force report needs to contain a report regarding APD’s interactions with the mentally ill, the number of times the SWAT unit was deployed over the last three years to deal with “crisis intervention” and well as the training of APD officers in crisis intervention.
It will be in November of this year that a full 5 years has expired since the city entered into the CASA with the DOJ.
For nearly 3 years, the previous Republican City Administration and the former APD command staff did whatever it could to undermine the implementation of the DOJ reforms.
During the last 16 months, there has been a dramatic turnaround with the implementation and progress with the reforms.
From all appearances, and from review of the Federal Monitor’s last reports, the City and APD has completed the following mandated reforms under the Court Approved Settlement Agreement:
1. After a full year of negotiations, the new “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.
2. All sworn have received crisis management intervention training.
3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.
4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.
5. Sweeping changes ranging from APD’s SWAT team protocols, to banning chokeholds, to auditing the use of every Taser carried by officers and re writing and implement in new use of force and deadly force policies have been completed.
6. “Constitutional policing” practices and methods as well as mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have now been implemented at the APD police academy with all sworn also having received training.
7. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.
8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
9. The Repeat Offenders Project, known as ROP, has been abolished.
10. Police Oversight Board has been created, funded, fully staffed and a director hired.
11. The Community Policing Counsels have been created in all area command and the counsels meet monthly.
12. The Mental Health Advisory Committee has been implemented.
13. The CASA identified that APD was understaffed. The Keller Administration and the Albuquerque Police Department (APD) intends to spend $88 million dollars, over the next four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and expand APD from 878 sworn police officers to 1,200 officers. APD is projecting that it will have 980 officers by this summer by growing the ranks with both new cadets, lateral hires from other departments, and returning to work APD retirees.
14. In November, APD achieved 99.6% compliance with primary tasks, 75.4% secondary compliance and 59.5% operational compliance with APD making significant progress in compliance.
According to the Use of Force Report for the years 2017 and 2018, APD’s “use of force” and “deadly force” is down, which was one of the primary objectives of the CASA reforms
Based on the statics in the 3 compliance areas, it would appear that within a year APD and the city should achieve a 95% compliance in the three compliance areas that will allow for a dismissal.
COMMENTARY AND ANALYSIS
The biggest complaint of all the DOJ consent decrees in the country is that implementation and enforcement “go on and on” for years costing millions in taxpayer money and resources to a city that could be better used for essential service.
The consent decree in Los Angeles has been going on now for about 16 year.
The CASA as negotiated with Albuquerque and APD was negotiated to be fully implemented over a four year period which was achievable.
The delay in full implementation of all the reforms within the 4 years is inexcusable and the result of the previous incompetence of the prior APD command staff and administration.
Further, the Federal Court as well as the Department of Justice contributed to the delay in implementing the reforms by refusing to be aggressive and take action against APD management that engaged in “delay, do little and deflect” tactics as decried by the monitor.
The Federal Monitor also did little to assist APD with implementation of the reforms other that audit and monitor progress proclaiming it was not his job to help APD, his job was to collect data and information, audit and to report to the court on compliance and to collect his $4.5 million in fees.
All other federal consent decrees of city police departments involve in one form or another the finding of “racial profiling” and the use of excessive force or deadly force against targeted groups or minorities.
Consent decrees involving “racial profiling” and racism are far more difficult and complicated to enforce because you cannot “teach” racial equality, eliminate racism in people and it is difficult to identify that a person is a racist when you recruit someone to be a police officer.
The 2013-2014 DOJ investigation of APD “use of force cases” and a finding of a “culture of aggression” within APD dealt with police officers interactions and responses to suspects that were mentally ill and that were having psychotic episodes.
APD Police Officers were found to have escalated encounters with the mentally ill, even calling SWAT out to deal with the conflicts, such as the 2014 killing of mentally ill and homeless camper James Boyd in the Sandia Foot hills
The DOJ found that APD policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved.
Crisis intervention an dealing with the mentally ill is “teachable” and “trainbale.”
APD has now trained its police officers to deal with the mentally ill and constitutional policing practices continue to be emphasized at the APD Academy.
APD is making significant progress in becoming fully staffed and returning to “community policing.”
The City has also created the Police Oversight Board to deal with citizens complaints, the Community Policing Counsels and the the Mental Health Advisory Committee.
With the continued implementation of the DOJ reforms, especially those reforms involving the mentally ill, the spirit and intent of the CASA has been realized.
95% to 100% compliance with the CASA should be achievable no more than 12 months, if not sooner, from now.
The roll of the Federal Monitor should now be reduced as well as the continued costs of the monitoring team reduced.
APD and the City should commence negotiations immediately with the Department of Justice for a stipulated “Order of Compliance” from the Federal Court with a dismissal of any and all causes of action the DOJ may have against the city and APD within a year.
Otherwise, the city of Albuquerque will be sucked into “year after year” of expenses and costs associated with a consent decree whose primary objective has been achieved.
Following are links to other related articles and source materials: