On August 12, 2018, Federal Court Appointed Monitor James Ginger, who audits the Court Approved Settlement Agreement (CASA) agreed to by the City and the Department of Justice, filed his “MONITOR’S THIRD “298 REPORT” PREPARED IN RESPONSE TO PARAGRAPH #298 OF THE CASA OUTCOMES MEASURES AND ANALYSIS OF THE ALBUQUERQUE POLICE DEPARTMENT’S IMPLEMENTATION OF THE CASA”. The report is mandated by the CASA. On Wednesday, August 20, 2019, 8:30 am, a hearing has been scheduled at the Federal Courthouse, Vermejo Courtroom, Lomas and 4th Street, for the Federal Monitor to make a presentation to the Federal Judge overseeing the CASA on his “Outcomes Measures and Analysis Report”.
The entire 52-page report can be read here:
https://www.justice.gov/usao-nm/page/file/1193921/download
This blog article is a deep dive into the Monitor’s third “Measures and Analysis” Report. It is followed by an Analysis and Commentary regarding what has been accomplished by the Albuquerque Police Department when it comes to the CASA. The article advocates dismissal of the Federal lawsuit against APD.
OPERATIVE REQUIREMENTS
The 3rd report specifically covers “ operative requirements” that are outlined in “Paragraph 298” of the Court Approved Settlement Agreement (CASA). The qualitative and quantitative outcome assessments included collecting and analyzing outcome data trends and patterns in the following areas:
A) USE OF FORCE MEASUREMENTS INCLUDING:
i. number of uses of force overall and by force type, area command, type of arrest, and demographic category;
ii. number of force complaints overall, disposition of complaints, force type, area command, and demographic category;
iii. number of uses of force that violate policy overall and by force type, area command, type of arrest, and demographic category;
iv. number of use of force administrative investigations supported by a preponderance of the evidence;
v. number of officers who are identified in the Early Intervention System for which use of force is a factor, or have more than one instance of force found to violate policy;
vi. number of injuries to officers and members of the public overall and by type, area command, and demographic category; and vii. ratio of use of force compared per arrest, force complaints, calls for service, and other factors that the parties deem appropriate;
B) SPECIALIZED UNITS:
i. number of activations and deployments of specialized tactical units; and
ii. number of uses of force used overall and by force type, area command, and demographic category;
C) CRISIS INTERVENTION MEASURES … .
D) RECRUITMENT MEASUREMENTS, including number of highly qualified recruit candidates;
i. detailed summary of recruitment activities, including development and leveraging community partnerships;
ii. the number of recruit applicants who failed to advance through the selection process after having been identified as well qualified, grouped by the reason for the failure to advance (this provision does not apply to those who fail to pre-qualify through APD’s online recruiting or other pre-screening system);
iii. the number of well-qualified recruit applicants who were granted any exceptions to the hiring standards, grouped by exceptions granted, and the reasons exceptions were granted;
iv. the number of well-qualified recruit applicants with fluency in languages other than English, grouped by the specific languages spoken;
v. the number of well-qualified recruit applicants with previous law enforcement experience, grouped by former agencies and years of service; and
vi. the number of well-qualified recruit applicants grouped by educational level achieved or years of military service;
E) FORCE INVESTIGATIONS INDICATING A POLICY, TRAINING, OR TACTICAL DEFICIENCY;
F) TRAINING DATA, INCLUDING:
i. number of officers trained pursuant to this Agreement, by the type of training provided; and
ii. training deficiencies identified through use of force investigations, the Force Review Board, civilian complaints, internal complaints, the disciplinary process, and the Civilian Police Oversight Agency;
G) OFFICER ASSISTANCE AND SUPPORT MEASUREMENTS, INCLUDING:
i. availability and use of officer assistance and support services; and
ii. officer reports or surveys of adequacy of officer assistance and support;
H) SUPERVISION MEASUREMENTS, INCLUDING INITIAL IDENTIFICATION OF POLICY VIOLATIONS AND PERFORMANCE PROBLEMS BY SUPERVISORS, AND EFFECTIVE RESPONSE BY SUPERVISORS TO IDENTIFIED PROBLEMS; and
I) CIVILIAN COMPLAINTS, INTERNAL INVESTIGATIONS, AND DISCIPLINE, INCLUDING: THE NUMBER OF MISCONDUCT COMPLAINTS, AND WHETHER ANY INCREASE OR DECREASE APPEARS RELATED TO ACCESS TO THE COMPLAINT PROCESS;
J) NUMBER OF SUSTAINED, NOT SUSTAINED, EXONERATED, AND UNFOUNDED MISCONDUCT COMPLAINTS;
K) NUMBER OF MISCONDUCT COMPLAINT ALLEGATIONS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE;
L) NUMBER OF OFFICERS WHO ARE SUBJECTS OF REPEATED MISCONDUCT COMPLAINTS, OR HAVE REPEATED INSTANCES OF SUSTAINED MISCONDUCT COMPLAINTS; AND
M) NUMBER OF CRIMINAL PROSECUTIONS OF OFFICERS FOR ON- OR OFF-DUTY CONDUCT.”
The 52-page Monitor’s report after the listing the mandated “operation requirements” goes into great detail containing detailed data, statistics and bar graphs highlighting what was found by the Federal Monitor auditing team .
The bar graphs and the page of the report where they can be found are as follows:
Use of Force Data, page 5.
APD Self-Reported Use of Force Methods for the years 2014 – 2016, pages 6 to 12.
Applications of force by Area Command (2014-2018), page 13.
Sustained Violations of Use of Force Policies by Year, page 15.
Incidents of Use of Force Policy Violations Noted by APD (2014-2018), page 17.
Overall Use of Force Reporting, 2014-2018, page 21.
Use of Force Violating APD Policy, page 21.
Use of Force by Demographic Category 2014-2018, page 23
APD Self Reporting Use of Force by Modality, 23
Arrest Demographics, 2014-2018, page 24
Use of Force Related Injuries to Civilians 2014-2018, page 26.
Canine Deployments, 2015-2018, page 29.
Bomb Squad Deployments 2014-2018, Reported Bomb Squad Deployments (2014-2018), page 30.
SWAT Deployments per Year, pages 31 and 32.
CIT/COAST Operations (2014-2018), page 35.
Citizens’ Complaints, 2015-2018, page 44.
Distribution of citizens’ complaints by year, page 45.
REPORT ON POLICE RECRUITMENT AND TRAINING
The Federal Monitors Third “Outcomes Measures and Analysis provided a “failure analysis,” designed to identify critical failure points in the training process at the APD academy. According to the report:
“The highest failure rate component was failure of the background investigation. The second highest failure rate was “physical abilities,” accounting for 26 failures among the two recruit classes covered by APD’s data for past reports. Polygraph failure was the third highest ranking failure point. Based on the monitor’s experience and knowledge, the three most frequently noted failure reasons identify issues APD has in common with most modern police agencies.
The number one reason for failing the candidate selection process continued to be failing APD’s background investigation. This is the most common reason for failure industry wide, and is not unique to APD. Based on the monitor’s knowledge and experience, APD experiences the same failure point frequencies as most modern police agencies: background investigations, polygraph, psychological assessment, and drug screening.” Pages 39 and 40.
APD ACADEMY ASSESSMENT
The Monitors Outcomes Measures and Analysis provided in part the following analysis of the APD Academy:
“Our past monitoring reports have been highly critical of the training process, and we agree with APD’s current response to the training “issues” confronting them: identifying the issues with training that have been outlined in previous monitoring reports and developing action plans to address them. APD has reached out and recruited outside leadership at the academy, and the new commander has put in exhaustive work designed to buttress training efforts.
The new training commander has begun reforming the curriculum design process, and, at the same time has designed, developed, and executed a myriad of new training products designed to facilitate moving the APD training effort forward over the coming years. This includes training in 2018 and 2019 on topics such as EPIC (Ethical Policing is Courageous), supervisory processes, newly developed training related to community and problem-oriented policing, managers’ training, reality-based training for supervisors, incident management training for supervisors, and remedial training for in-field officers, as recommended by supervisory and command staff”. Pages 41 and 42.
MONITOR’S SUMMARY AND CONCLUSIONS
The Federal Monitor’s Summary and Conclusions can be found on page 45 of the report and are as follows:
“While some marked progress has been made, as APD’s … data responses stand at the present time, work remains to be done to move the existing system forward to the point that the data can be used reliably to assess “outcomes” of APD’s compliance processes. Needed process revisions include actions already begun in 2018 by the current administration at APD. Our recommendations continue to be the same as those made in our last 298 report in 2018. These include:
1. Continue the processes initiated by the Compliance Bureau to ensure that all policy-related misconduct investigations are identified, assessed for efficacy given the extant fact situations, reported accurately and tracked through to completion, including a review of “actions taken;”
2. Identify critical process flow and outcome points and report them in the same manner and process over time;
3. Ensure that data included in APD reports … continue to be reviewed for accuracy, completeness, timeliness and functionality;
4. Where the monitor has noted discrepancies or concerns, ensure that data collection, analysis and reporting are, in every instance, accurate, clear and understandable;
5. Explain reporting processes in any instance in which they are not clear, i.e., APD should include a “methodology” section in each of the nine individual … topics and for each of the subsections of those nine topics (these elements are explained in the data document, but must be translated to command and supervisory personnel in a clear and tangible manner);
6. Generate semi-annual progress reports in a data-rich format similar to the monitor’s reports that identify systems brought on line to comply with 298 requirements, e.g., policy, training, supervision, and oversight functions;
7. Track results of those (item 7 above) systems’ impacts over time;
8. Ensure that these quarterly reports are data-based, identify specific measurable goals and objectives, and report on progress toward meeting goals and objectives identified in previous systems reports;
10. Implement an internal APD “Red Team” process to vet and assess the APD’s Paragraph 298 process reports to ensure accuracy, timeliness, and veracity before the reports are provided to senior level staff and the monitor;
11. Subject every … process report to a “lessons learned” analysis, and link that analysis to policy, training, supervision and remediation processes;
12. Consider the purpose and function of APD’s … data reporting function, and choose a format and process that matches purpose and function, e.g., a “lessons learned” component with recommendations for improvement in the reporting, review, and analysis of uses of force designed to report more effectively, analyze more carefully, and build internal systems that learn and adapt;
13. As with most data reporting from APD, there is very little analysis of the data by the agency. Data simply tend to be reported without noting trends, issues, problems or solutions. APD should consider developing summative, data-driven responses to issues noted in their aggregate data. We view this as a critical deficiency for all aspects of … reporting [required under the CASA].
Findings, assumptions, and recommendations should replace reporting of raw data in the APD’s data-driven reports. The most critical issue to answer is “why,” and APD has proven, to this point, not to be interested in the “why” questions that should be associated with data analysis and reporting It has, in the past, had a tendency not to produce data analysis that will address the issue at hand: “Why?”. We do note that the Compliance Bureau has begun such work. It is critical that this work be completed and used as a management tool for APD’s commanders and executive staff. It should be a continuing process.
14. We note that APD has retained the services of an outside data systems design consultant who is highly skilled and knowledgeable. We suggest APD ensure that this individual—or a similarly dataliterate individual—be included in the task group assigned to deal with item 13 above.
The reader will note that these recommendations are very similar to those produced in the monitor’s last … report. Unfortunately, that report seems to have been discounted by the previous administration at APD. Fortunately, we find the current administration to be much more attuned to the monitor’s recommendations.
In our last … Report we noted:
“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 APD. APD should give careful and methodical thought to what should be included in the oversight function, how data should be collected, organized and reported to assist that function, and how the executive level can ensure effectiveness of that function. At the current time, such oversight is sorely absent, except from the monitoring team. APD needs to revisit its reporting modalities thoroughly. We recommend reporting data in a manner gives rise to the power or the ratio: e.g., number of effective force investigations per number of uses of force reviewed; number of injuries per 100 arrests, etc. Those ratios should be tracked over time and become a daily metric for assessing organizational, supervisory, and management effectiveness. Raw data are seldom meaningful from a managerial standpoint.
We note that the current administration at APD has taken steps toward the goal of becoming a data-driven police agency. The data provided by APD for [this] report are a substantial and meaningful improvement over those received for the first report. We consider this a first step in a long-term project that will, more likely than not, take years, not months. In the meantime, however, the new administration at APD has signaled an understanding of the importance of data-driven policing. The monitoring team stands ready to assist APD as it migrates toward becoming a data-based “learning organization.”
We note that the current administration at APD has taken steps toward the goal of becoming a data-driven police agency. … We consider this a first step in a long-term project that will, more likely than not, take years, not months.”
JUSTICE DEPARTMENT HAS ALL BUT ENDED FEDERAL POLICE REFORM
On August 9, 2014, Michael Brown Jr., an 18-year-old African American man, was fatally shot by 28-year-old white Ferguson police officer Darren Wilson in the city of Ferguson, Missouri, a suburb of St. Louis. Decades of frustration over racially biased and unconstitutional policing exploded in the streets as the world watched.
According to an August 9, 2019 Huffington Post investigative report, the months and years that followed, the Obama administration helped draw national attention to the utility of federal investigations into patterns of unconstitutional conduct by police departments. But now the Trump administration has all but abandoned the work of police reform.
To quote the Huffington Post:
“The Justice Department has backed away from its mandate to rein in systemic police abuse and deserted even those police departments that asked the feds for help. The Justice Department’s Civil Rights Division, which is charged with investigating and litigating any unconstitutional “pattern or practice of conduct by law enforcement officers,” virtually halted new investigations.
The Justice Department’s Civil Rights Division, which is charged with investigating and litigating any unconstitutional “pattern or practice of conduct by law enforcement officers,” virtually halted new investigations. Supporters of DOJ-led police reform see an irony in an administration that came into office on a “law and order” platform abandoning its duty to enforce the law against police. The administration’s retreat from systemic police reform is “yet another example of it shirking its duty to the rule of law,” says former Civil Rights Division official Chiraag Bains.”
A Justice Department official told the Huffington Post that the agency “is committed to protecting the civil and constitutional rights of all individuals, and understands the important role the Department plays in helping communities and police departments as they seek to achieve the same goal while fighting violent crime and protecting public safety. … [Attorney General William Bar is committed to holding any officer responsible who violates the law without restraining the ability of good police officers trying to do their part in reducing violent crimes.”
ANALYSIS AND COMMENTARY
It is becoming increasingly difficult to believe that the United States Attorney’s Office for the District of New Mexico is still fully committed to the Court Approved Settlement Agreement (CASA) given the DOJ’s abandonment of the police reform cases in the United States. Sooner rather than later, the Department of Justice will start to question the continued need for the CASA entered with the City and APD. Perhaps the litigation is already there with the recent third Federal Monitor’s report on “Outcomes Measures and Analysis.”
To be blunt, the Federal Monitor’s third “Outcomes Measures and Analysis” report is yet another convoluted and technical report that is very difficult to follow and understand by the general public and voters. However, the last sentence in the summary sticks out:
“We consider this a first step in a long-term project that will, more likely than not, take years, not months.”
Make no mistake about it, this last sentence is nothing more than the Federal Monitor beginning to justifying another 4-year, $4 Million-dollar contract.
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 Monitors 9th progress 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 achievable given the amount of progress APD has now 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 should 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 (DOJ) 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.
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 or “will be achieved within months, not years” to quote Dr. Ginger.
For related log articles see:
Ninth APD Federal Monitor’s Report Filed; Negotiate Dismissal of CASA
APD Use of Force Report Fails To Report On Crisis Intervention Incidents Involving Mentally Ill
Tracing The Evolution of APD’s “Culture Of Aggression” Ends With A Warning