The City of Albuquerque has settled and paid $3.7 million in a civil law suit to the family of a criminal suspect who was seriously injured on May 28, 2015 by the Albuquerque Police Department (APD) using “excessive use of force” and “deadly force.” The biggest difference between the recent settlement and those of the past is that the injured criminal suspect survived while others were killed by APD.
UNDERLYING FACTS SUPPORTING THE $3.7 MILLION SETTLEMENT
The recent story reporting the $3.7 million settlement and 3 other settlements leaves very little doubt why the City and APD had no choice but to enter into the October 31, 2014 federal Court Approved Settlement Agreement (CASA). The settlement agreement required re write and reforms of APD policies and training on “use of force” and “deadly use of force” in order to address the “culture of aggression” found by the Department of Justice. The most recent settlement for $3.7 million alleges civil rights violations and that 10 APD officers used excessive force shooting their weapons 82 times in one incident.
On June 13, 2019, the Albuquerque Journal reported the facts that supported the $3.7 million settlement:
“A little over four years ago, on the evening of May 28, 2015, 10 Albuquerque police officers opened fire on an unarmed suspect in a stolen SUV, shooting at least 82 times. Rodrigo Garcia, then 20 years old, was struck approximately seven times in his head and body. The officers did not provide medical care immediately. Instead, they continued to shout commands for him to give himself up for the next 90 minutes or so. Garcia lived, but was severely injured. He now has the functional capacity of a 5- or 6-year-old and cannot move around by himself. Those claims were included in a lawsuit filed in federal court last year by Garcia’s mother, Loretta Garcia, against the 10 officers who fired their weapons, the four who removed Garcia from the SUV, then-police chief Gorden Eden and the city of Albuquerque.” After the shooting 20-year-old Rodrigo Garcia was on life-support for close to a year and he underwent surgeries to remove bullet fragments and part of his brain.
According to one of the attorneys representing the Rodrigo Garcia family:
“One of the reasons there was a substantial settlement was because we had a panel of experts who explained the 90-minute delay in getting … [Rodrigo Garcia] medical care really had an adverse impact on the extent of his brain injury. … Had he gotten adequate emergency medical care perhaps he wouldn’t have had as much brain damage. But he bled out for 90 minutes, and that was not good. … [Rodrigo Garcia’s] life span is likely not going to be more than until he is 35 years old”. The panel of experts predicted that Garcia, now 24, probably won’t live much longer.
At the time of the shooting, an APD spokesman said when APD tried to arrest Garcia, he and a woman he was with got out of a vehicle they were in but when officers tried to arrest them, Garcia jumped back into and drove away, running into a chain link fence. An officer was either knocked down or fell down during the escape and that is when APD police officers began shooting at the moving vehicle. APD lapel camera video show multiple officers firing at the back of the SUV as it drives away, then again as it slowly rolls backward. It is likely that when the vehicle started to roll back, Garcia had already been shot in the head. Ten police officers fired shots at Garcia driving off and 4 police officers “forcibly removed Garcia from his vehicle and dragged him back to the APD command area where he was handcuffed.”
THREE APD DEADLY USE OF FOR CASES SETTLED FOR $18 MILLION
There have been 3 previous several million-dollar settlements where suspects have been killed by APD and the city has settled the cases with the families without going to trial. Three of the largest settlements involved the killing of James Ellis, III, a veteran suffering from post-traumatic stress disorder, mentally ill and homeless camper James Boyd, and 19-year-old Mary Hawkes.
KENNETH ELLIS, III
On January 28, 2014, the City announced it had settled with the Kenneth Ellis III family for almost $8 million. A judge had ruled the shooting unlawful and a jury returned a $10.3 million verdict. Jurors ruled that the APD Detective who shot Ellis acted “willfully, wantonly or recklessly.” Ken Ellis was a 25-year-old Iraq War veteran suffering from service connected post-traumatic stress disorder. Ellis was killed on January 13, 2010 in a standoff with APD outside a Northeast Heights convenience store. He was suffering from post-traumatic stress disorder and held a gun to his own head throughout the encounter, which ended when an APD Officer shot him once in the neck.
On July 10, 2015, the city settled with the family of mentally ill and homeless camper James Boyd for $5 million. James Boyd in March, 2014 was shot and killed in the Sandia Foothills by APD after hours of confrontation. Boyd refused to surrender and was armed with two knifes. While Boyd began to surrender, police escalated the confrontation and Boyd was shot and killed by two APD SWAT officers shooting rifles from a distance. The two SWAT officers who killed Boyd were charged with murder, defending the killing as doing what they were trained to do to defend APD officers on the scene. The jurors were unable to reach a verdict, a mistrial was declared and the criminal charges were eventually dismissed against the two APD officers.
On January 17, 2018, the city of Albuquerque announced it has reached a $5 million settlement with the family of Mary Hawkes, a 19-year-old woman who was shot and killed by police during a foot chase in 2014. 19-year-old Mary Hawkes was allegedly armed with a handgun and fleeing from police and she was shot in the back. Hawkes was killed just days after the Department of Justice announced the city’s police department had a pattern of using excessive force and force. The Hawkes family alleged that the police department’s “structural and systemic deficiencies” led to her killing.
SETTLEMENT MONEY COMES FROM THE TAXPAYER
The City of Albuquerque is a self insured entity and as such carries NO insurance for law enforcement liability nor for any other tort claims or causes of action. The city has a Risk Management Department and the City Council funds the reserves with the money coming out of the general fund, so its all taxpayer money paying the settlements. The city has a claims review board that meets regularly and decides what cases and for how much the cases should be settled. In order to keep its self insurance status, the city must keep in cash reserves a percentage of liability exposure. Virtually none of the agreed to settlements paid come from an insurance carrier. Under state law, when a cop or any city employee is sued, the city is required by law to defend them, pay for their attorney and further pay all attorneys fees, costs and judgments rendered against the cop or city employee. The $60 million plus paid by the city in police misconduct cases and deadly use of force came out of the general fund, which is all taxpayer money.
DEPARTMENT OF JUSTICE CONSENT DECREE
The City of Albuquerque has paid out upwards of $64 million in settlements over the last 10 years involving 42 police officer involved shootings. It was 2012 when the Department of Justice (DOJ) came to Albuquerque to investigate the Albuquerque Police Department (APD) for excessive use of force and deadly forced.
Albuquerque is one of 18 law enforcement agencies throughout the country operating under a consent decree brought on by a Department of Justice (DOJ) investigation that found systemic problems and a “culture of aggression”. What differentiates the DOJ’s investigation of APD from all the other federal investigations and consent decrees is the fact that the others involve in one form or another the finding of “racial profiling” and use of excessive force. The DOJ’s finding of a “culture of aggression” within APD dealt with APD’s interactions and responses to suspects that were mentally ill.
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” mostly with the mentally ill and having nothing to do with racial profiling. The implementation of reforms under the federal Court Approved Settlement Agreement (CASA) began in 2014 after 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).
At the time of the July 10, 2015 settlement with the Boyd family, lawsuits stemming from police shootings had cost taxpayers more than $25 million in settlements, and APD had shot more than 40 people since 2010 with 29 of them fatal.
The CASA was entered into on October 31, 2014. There is no doubt the CASA has addressed the “culture of aggression” found by the DOJ. This November it will be a full five years since the city entered into the Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ). The CASA was negotiated to be fully implemented over a four-year period.
APD has completed the following mandated reforms under the CASA:
1. After a full year of negotiations, the new “use of force” and “use of deadly force” policies have been written and implemented. All APD sworn officers have received training on the policies.
2. All sworn officers 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 a ban on chokeholds, to an audit of every Taser used by officers, to a re-write and implementation of new use-of-force and deadly force policies – have been completed.
6. The CASA identified that APD was severely understaffed. APD has added 116 police officers, is returning to community-based policing and has gone from 821 officers in 2016 to 957 police officers on June 18, 2019 and APD expects to be at 987 police officers by the end of July. https://www.abqjournal.com/1329712/apd-added-116-officers-over-past-year.html
7. All other federal consent decrees in the country involve in one form or another the finding of “racial profiling” and the use of excessive force or deadly force against minorities. APD’s consent decree deals with APD’s interactions and responses to suspects that are mentally ill and having psychotic episodes. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques and de-escalation tactics with the mentally ill have now been implemented, with all sworn officers having received the training.
8. 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.
9. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
10. The Repeat Offenders Project, known as ROP, has been abolished.
11. The Police Oversight Board has been created, funded, fully staffed, and a director has been hired and his contract renewed.
12. The Community Policing Counsels have been created in area commands and meet monthly.
13. The Mental Health Advisory Committee has been implemented.
14. Under the CASA, once APD achieves a 95% compliance rate in all three compliance areas, the case can be dismissed. The May APD monitor’s report found APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance.
15. According to the Use of Force Report for 2017 and 2018, APD’s “use of force” and “deadly force” is down, which was the primary objective of the CASA reforms.
VIOLENT CRIME STATS
On March 30, 2019, the Albuquerque Police Department released the City’s crime statistics for the first quarter of 2019 which runs from January to March of 2019.
The good news is that APD reported that crime is continuing to drop from 10 years of historic highs in all major categories. The bad news in the statistics released is that the city saw an increase in nonfatal shootings.
According to the statistics, non-fatal shootings went up 12% and there have been 131 nonfatal shootings the first quarter of the year compared to last year’s number of 114. The statistics reflect that in the first three months of nonfatal shootings around the city occurred roughly three times every two days. Nonfatal shootings have increased from 2017 to 2018 rising by 14%.
COMMENTARY AND ANALYSIS
All too often, people who consider themselves “law and order” types and supporters of law enforcement say criminal suspects who are shot or even killed by police get what they deserve. The opinion expressed usually includes that the families of suspects killed should not be compensated for damages or violations of constitutional rights by law enforcement and wrongful death claims. Such attitudes are misguided and reflect a degree of ignorance and purpose and function of law enforcement in general.
All 4 of the described cases that the city settled for a combined total of $21.7 million dollars leaves very little doubt why the City and APD had no choice but to enter into the federal Court Approved Settlement Agreement (CASA). The CASA mandated the rewrite and reform of APD policies, procedures and training on “use of force” and “deadly use of force.”
APD is slowly but assuredly growing and changing. APD has added 116 police officers, is returning to community-based policing and has gone from 821 officers in 2016 to 957 police officers on June 18, 2019. APD’s use of force and deadly use of force is also down dramatically. The goal is to spend $88 million over a four-year period and bring the level of police officers to a full force of 1,200. Notwithstanding the growth of APD, the city is still suffering from record high violent crime and APD has its work cut out for it.
The most common motto of law enforcement agencies throughout the country is to “protect and serve”. In general, the words define the mission of law enforcement which is to “protect” citizens from danger and “serve” the public. “Protect and Serve” does not mean “shoot and kill first and ask questions later.”
The mission of law enforcement is not “Judge, Jury and Executioner”. Taxpayers wind up paying for “use of excessive force” or “deadly force” by law enforcement when constitutional policing practices are not followed. There is no doubt that law enforcement have the right to defend themselves, but they must do so within the confines permitted by the United States Constitution. That is why APD police officers go through months of training and education at the police academy before they become police officers and then another period of on the job training.
It appears that APD has learned its lessons from past mistakes, is improving and that the CASA reforms are serving their function. However, Albuquerque is way too violent and APD has a steep mountain to climb to get the city’s violent crime down and making sure all police officers get home safe at the same time.