On May 1, 2019, Federal Court Appointed Monitor James Ginger filed his ninth “Compliance Levels of the Albuquerque Police Department and the City of Albuquerque With Requirements of the Court-Approved Settlement Agreement” (CASA) report with the Federal Court. The report is 286 pages long and follows the same format as all the previous 8 reports: a detailed audit of every paragraph of the consent decree.
(Case 1:14-cv-01025-JB-SMV, Document 444 Filed 05/01/19 Page 1 to 286, Monitor’s Ninth Report, Compliance Levels of the Albuquerque Police Department and the City of Albuquerque with Requirements of the Court-Approved Settlement Agreement No. CIV 14-1025-JB-SMV).
This article highlights major points of the report. It is not intended to be exhaustive. This report covers the compliance efforts of APD during the audit period of August, 2018 through January, 2019.
According to the monitor, a new strategy has been developed by APD, one which the monitoring team believes will significantly aid efforts to implement the spirit of the CASA and specific requirements. According to the report APD Chief Michael Geier and his command staff “have identified and replicated several state-of-the art policing strategies that are designed to transition APD to an agency that has true partnerships with the citizens it serves.”
The Federal monitors reports executive summary proclaims:
“For the second reporting period in a row, the compliance efforts … observed during this reporting period differ substantively from those … observed earlier in the monitoring process. … [T] he current APD executive staff continue to be fully committed to CASA compliance processes. Most of the new command and oversight [personnel] also appear to be fully committed to moving APD forward in its compliance efforts. [The monitor’s team] found extremely attentive audiences for … compliance process advice, and in most cases, APD has moved forward adroitly as it implements responses to that advice.”
The ninth report “is the second full monitor’s report that reflects the progress made at APD since the advent of a new management” and command staff at APD. The monitor noted the new management of APD “continues to exhibit a strong grasp of the key issues confronting them as they work toward compliance with the CASA.”
“… [T] he current leadership continues to demonstrate a grasp of the key issues involved in the compliance process and they are building effective problem-solving mechanisms designed to effectuate meaningful change at APD.”
During the 9th reporting period, “APD has adopted the long-term approach to reform [that the monitoring team has] recommended from the early stages of this process. … [T]his is a critical change in approach. The new executive and management [team] at APD have been highly responsive to monitoring team feedback.”
APD’s management “have made palpable progress. More importantly, they have constructed critical foundations for the change that still remains to be accomplished.”
APD IMPLEMENTS STATE-OF-THE ART COMMUNITY POLICING
APD has implemented 4 new initiatives proven effective in other police departments as being highly successful.
The 4 initiatives are:
1.EPIC –ETHICAL POLICING IS COURAGEOUS: A peer-based program designed to empower individual officers [with] the strategies and tools to step in and intervene in improper police behaviors in order to prevent problems before they occur. EPIC train[s] officers in how to defuse situations before they become critical issues in how officers interact with and treat the public.
2. LAW ENFORCEMENT ASSISTED DIVERSION (LEAD) programs are designed to end the revolving door of arrest-try-incarcerate-repeat generated by most law enforcement programs designed to deal with drug abuse or prostitution. The program allows law enforcement officers to redirect low-level offenders engaged in drug or prostitution activity to community-based services, thus preventing negative outcomes of being processed by official criminal justice system components for first offenses.
3. CIT-ECHO—An Extension for Community Healthcare Outcomes: A collaborative model of medical education and care management that empowers clinicians to provide better care to more people. ECHO dramatically increases access to specialty training and knowledge by front-line law enforcement personnel with the knowledge and support they need to manage difficult interactions.
4. PROBLEM RESPONSE TEAMS—Dedicated community-policing trained officers assigned to community outreach and problem-solving modalities that involve working directly with local residents and business owners to identify problems, issues, needs and solutions related to articulated community problems.
ACCOMPLISHMENTS AND STEPS TAKEN TO MOVE PROCESS FORWARD
According to the 9th Federal Monitors Report, “APD continues moving toward becoming a data driven organization that uses data and facts to assess issues, identify potential solutions, and effect meaningful change.”
APD has now taken the following direct actions to move their compliance processes with the CASA forward:
“• Building a more rigorous development and assessment practice at the Training Academy related to curriculum development, delivery and assessment;
• Fielding an effective unit designed to reduce the long-standing backlog of use of force incidents;
• Researching and adapting implementation strategies informed by the experiences in other police agencies working through similar reform processes;
• Developing competencies within the Compliance Bureau in a manner that should drastically improve compliance-related performance, including a new “Performance Metrics Unit” that serves as APD’s internal audit unit, performing work similar to the monitoring process;
• Continuing work for restructuring the documentation of training processes, including improved training plans and revised internal responsibilities and processes;
• Continuing staffing and development of a well-organized and staffed self-audit function (the Performance Metrics Unit);
• Continuing movement toward community-based, problem-oriented policing practices designed to address community concerns and priorities;
• Provision of training designed to change the culture and climate at APD; and
• Reorganizing and staffing the Internal Affairs processes in a manner designed to improve the quality of internal investigations.”
PERSISTANT PROBLEM AREAS IDENTIFIED
The 9th Monitors Report identified 3 persistent problem areas carried over from the previous administration, all of which present clear obstacles to effective compliance.
The obstacles include:
“1. Resolving 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;
2. The use of “Additional Concerns Memos” to dispose of policy violation issues, as opposed to actual findings and corrective action; and
3. A continuation of what … [is] … labeled the “Counter-CASA Effect” at APD.”
OPERATIONAL COMPLIANCE LEVELS
For the purposes of the APD monitoring process, “compliance” consists of three parts: primary, secondary, and operational.
The 3 compliance levels are described as follows:
1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.
2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to (and effective in) implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts (reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.
3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.
During the audit period of August 1, 2018 to January 14, 2019 the report found APD was 99.6% in primary compliance, 79% in secondary compliance and 63% in operational compliance. This is up slightly from the previous report when the department was in 75.4% secondary compliance and 59.2% in operational compliance. Primary compliance remained the same between the two periods.
OBSTACLES TO COMPLIANCE
“While on-site during the reporting period, a meeting was held with members of the monitoring team, APD command staff, the City, the US Attorney and DOJ to discuss two specific issues we see as key illustrations of obstacles to compliance:
1) Additional Concern Memos (ACMs) being improperly used to address policy and misconduct that should be elevated to Internal Affairs, and
2) Incorrect interpretations of when a timeline begins for the completion of an investigation. Failing to properly remediate performance deficiencies and tepid responses to policy violations will impede seriously reform efforts.”
According to the monitors report “policy violations that should be reported to Internal Affairs are instead often being handled in area commands or within Additional Concern Memos (ACM). ACMs have been found to contain information that clearly required Internal Affairs referrals, but as important, is the fact that ACMs are a poor mechanism to track aggregated data that can be used for performance plans and as data for the EIRS. To its credit, APD has acknowledged this practice is creating issues for the agency and committed to ending the use of ACMs entirely.”
ROLE OF POLICE OVERSIGHT BOARD
According to the monitors report “There have been indications that the Police Oversight Board’s (POB) role in the oversight process and the reform process of the CASA is not being taken seriously enough by the City.”
“The POB consists of 9 members, all of whom are needed to keep current with its challenging workload and tasks of the Board and its sub-committees. Three POB vacancies occurred in 2018, (March 2018; June 2018; and September 2018). None of these vacancies had been filled by the end of this IMR period (January 31, 2019).”
“The monitoring team has learned that … three candidates have been selected to fill these vacancies and were to be presented to City Council for approval at its February 2019 meeting. Without reflecting on the qualifications of the candidates or their desire and commitment to serve, we have learned that the selection process was seriously wanting.”
“No formal interview of the candidates took place before selection. There was no input from the POB or CPOA as to the background and qualifications of the three candidates, or for any applicants for that matter. It appears that they were selected solely from the information provided on their November 2017 website applications, pending an appropriate background check.”
“Another related issue was the reappointment of the Executive Director [Ed Harness] to a second term. His first term expired in October 2018. In anticipation of the end of his contract … the POB voted to renew the Executive Director’s contract in May of 2018. Notwithstanding that the CASA gives the authority to select the Executive Director to the POB (“the agency”), City Council twice delayed voting on approval of the reappointment. The Executive Director was finally approved in early December 2018; however, at the expiration of this IMR period he was still working without a contract.”
According to the monitors 9th report “[At the close of] the reporting period, APD is in a strong position to move forward successfully; however [there are] potential obstacles to finishing compliance efforts in a timely manner.”
The Monitors report identified APD’s strengths, weaknesses, opportunities, and threats to the remaining tasks facing APD as it moves forward in implementing the CASA.
The federal monitor identified two major strengths:
1.“APD executive staff, i.e., the chief of police and deputy chiefs of police and most in the command levels of APD are committed, knowledgeable, change-oriented individuals, and are beginning to look “outside” the agency for models, processes, product and solutions to the issues confronting the agency as it moves forward with compliance efforts.”
2.“The current city administration has committed to the requisite funding levels that were obvious from the outset of the project in 2015. Acquisition of additional officers, and funding for needed information and management systems are being met at a level that is necessary for moving forward with many CASA-related processes.”
Despite the strengths noted, the report found that APD is still confronted with several weaknesses that have and will continue to retard the reform progress.
The weaknesses include:
“▪ A lack of vision among some of the command ranks;
▪ A lack of full commitment to reform at command through sergeant levels;
▪ A paucity of technical skills in command ranks;
▪ A lack of integration of compliance efforts;
▪ Overt resistance from some in command, mid-management, and supervisory levels;
▪ A paucity of technical skills among key elements of the reform effort, including:
— A lack of experience and core knowledge regarding organizational development and planned change;
— A lack of familiarity with the application of automated information systems to the specific problem sets confronted by the agency; and
–A lack of a sophisticated understanding of and experience with quantitative and qualitative program evaluation.”
According to the report, the weaknesses listed are the same weaknesses noted since the inception of the monitoring project, and are reflective of the lack of an outside focus by APD during the past administration.”
The Federal Monitor reported several opportunities for APD to move forward effectively and they include:
“▪ Enhanced funding levels from new administration;
▪ Enhanced support from new administration;
▪ Newly earned trust from community;
▪ The continued Court mandate for “change;”
▪ Acceptance of “outside hires” at management and technical levels; and
▪ Existence of “experienced” organizations that have preceded APD in the reform effort (Los Angeles, Seattle, New Orleans, Cleveland etc.).”
The Federal Monitor identified formidable threats to APD’s success as follows:
“▪ The Counter-CASA effects … discussed in detail over the past five reports;
▪ Technological, managerial, and supervisory skill deficits; and
▪ The shelf-life of existing opportunities (discretionary funding for reform efforts) may soon dry up, as the City is required to focus on other, equally important issues.”
COMMENTARY AND ANALYSIS
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. However in the 9th report, the Federal Monitor failed to indicate in any manner how much more time and how much money will be needed to complete the reform process under the CASA.
In November, 2019, it will be a full 5 years has expired since the city entered into the Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ). For nearly 3 years, the previous Republican City Administration and the former Republican APD command staff did whatever it could to undermine and undercut the implementation of the DOJ mandated reforms. During the last 18 months, there has been a dramatic turnaround with the implementation and progress with the reforms.
From all appearances, and from review of all the Federal Monitor’s last 9 reports, the City and APD have 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. All APD sworn have received training on the policies.
2. All sworn have received at least 40 hours 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 implementation 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 and de-escalation tactics with the mentally ill have now been implemented at the APD Police Academy with all sworn also having received the 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 has hired been hired and his contract renewed.
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 severely understaffed. The city intends to spend $88 million dollars, over a 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 July, 2019 by growing the ranks with both new cadets, lateral hires from other departments, and returning to work APD retirees.
14. The November of 2018 monitors report found APD achieved 99.6% compliance rate with primary tasks, 75.4% secondary compliance and 59.5% operational compliance with APD making significant progress in compliance. In May, 2019, APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance.
INTENT AND PURPOSE OF CASA HAS BEEN ACHIEVED
The CASA was negotiated to be fully implemented over a four-year period which is still achievable given the amount of progress APD has made. Under the CASA, once APD achieves a 95% compliance rate in all 3 compliance areas, the case can be dismissed. 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 the primary objective of the CASA reforms. Based on the statics for the 3 compliance areas reported, 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.
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 dollars and resources to a city that could be better used for essential services. The consent decree in Los Angeles has been going on now for about 16 years.
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 and 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 reform’s other that “audit and monitor progress” conveniently proclaiming it was not his job to help APD, that 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 2014 DOJ investigation 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 and dealing with the mentally ill is “teachable” and “trainable.” 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 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. A 95% to 100% compliance with all the CASA primary, secondary and operational compliance goals 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, taxpayers and 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, with the Federal Monitor demanding another $4 million to audit progress on goals that have been essentially achieved