On November 1, 2019, Federal Court Appointed Monitor James Ginger filed his 10th compliance audit report in federal court regarding the Albuquerque Police Department’s (APD) compliance with the Department of Justice mandates reforms . The audit report covers February 2019 through July 2019.
“OVERALL STATUS ASSESSMENT”
In the 10th Federal Monitor’s Audit report, the monitor reported APD met 100% of CASA-established primary compliance requirements during the reporting period. According to the audit “This means, in effect, that policy requiring compliance actions and processes are complete, and are reasonably designed to achieve the articulated goals of the CASA.” Secondary compliance rates (training) were reported at 81%, up from 79% and overall compliance rates are at 63%, the same as the 9th audit report.
The 10th report contains the following summary of the “Overall Status Assessment” in the three compliance areas:
“As of the end of the tenth reporting period, APD continues to make progress overall, having achieved primary compliance in 100% of the applicable paragraphs of the CASA. Primary Compliance relates mostly to development and implementation of acceptable policies (conforming to national practices).”
“APD is in 81% percent Secondary Compliance as of this reporting period, which means that effective follow-up mechanisms have been taken to ensure that APD personnel understand the requirements of promulgated policies, e.g., training, supervising, coaching, and disciplinary processes to ensure APD personnel understand the policies as promulgated and are capable of implementing them in the field.”
“APD is in 64% Operational Compliance with the requirements of the CASA, which means that 64% of the time, field personnel either perform tasks as required by the CASA, or that, when they fail, supervisory personnel note and correct in-field behavior that is not compliant with the requirements of the CASA.”
On November 8, 2019, the Albuquerque Journal did a very lengthy front-page story entitled “APD hits important milestone in DOJ reforms”. The Journal article glossed over the “Counter CASA effect”, which is where APD sergeants and lieutenants resist the reforms mandated under the settlement agreement. The link to the Journal article is here:
JOURNAL TELLS APD TO “PRACTICE WHAT YOU TEACH”
On November 16, the Albuquerque Journal published its editorial on the Federal Monitors 10th compliance report as follows:
“It is an important milestone that less than five years into federally mandated reforms, the Albuquerque Police Department is officially 100% compliant in rewriting and promulgating its policies.
After all, it was just a few years ago the U.S. Department of Justice found APD officers had a pattern and practice of using excessive force up to and including fatal shootings. It was clear there was a long, expensive slog ahead under a Court Approved Settlement Agreement with the DOJ to get the department’s culture, training and procedures under control, as well as to regain the public’s trust.
Much credit goes to APD Chief Michael Geier, who rejoined the department in late 2017. Independent monitor James Ginger writes in his tenth report “the Chief and the leadership cadre have hit the mark solidly on the policy front.” He also lauded the creation of a data analysis group and an Internal Affairs Force Division, which has reviewed 300 backlogged use-of-force cases.
But in a department of nearly 1,000 sworn officers, it takes more than good policies and procedures on paper. Those have to become practice. Across the board.
As Journal reporter Elise Kaplan wrote Nov. 8, Ginger says APD is 81% compliant with requirements to train officers on its new and improved policies, but only 64% compliant in determining whether officers and their supervisors are following those policies and being corrected if they aren’t.
And that could be written off to the lag time it takes to get everyone trained – except.
Except this is much more what some would quantify as middle-management apathy toward reforms, what Ginger writes is a “potentially fatal flaw” because it’s coming from the department’s front-line officers and supervisors. To have field sergeants and lieutenants investigating themselves and making excuses for/giving verbal warnings to officers who ignore vital procedures for accountability, like when to use a Taser or turn on their recorders or lapel cameras, should be a non-starter.
Ginger writes “these problems – credibility issues, omission of facts, improper findings of compliance with use of force SOPs, etc. – continue to arise from bias and/or conflicts of interest when compromised supervisors investigate use of force incidents in which they are involved – as participants, witnesses, etc. – or have overseen.”
These mid-level supervisors (who bizarrely are in the same union as the rank-and-file they supervise) serve a crucial role in the broader ecosystem of the department, and APD needs buy-in from every one for the community to have any confidence constitutional policing will be standard operating procedures next week, next month and next year.
Albuquerque taxpayers handed Ginger a four-year, $4 million contract when this DOJ process began in 2015 and have re-upped for $1.6 million through January 2020. While nearly every candidate running in the last city election announced a goal of getting out from under the DOJ agreement to save money, that’s penny wise and pound foolish if officers and their supervisors continue to turn their lapel cams off before tasing people because they are “saving their batteries.”
So yes, APD deserves credit for a job well done rewriting all of its policies and procedures. But that 100% means nothing if the policies and procedures are not implemented or followed. Geier and his top brass need to make that happen before the reform process is declared a success.”
The link to the editorial is here:
COUNTER CASA EFFECT
It was on September 10, 2018, at a status telephone conference call held with US District Court Judge Robert Brack who at the time was presiding over the Court Approved Settlement Agreement (CASA) reforms that Federal Monitor Dr. James Ginger first told the federal judge that a group of “high-ranking APD officers” within the department were trying to thwart reform efforts.
The Federal Monitor revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants. Because sergeants and lieutenants are part of the police bargaining unit they remained in their positions and could not be removed by the Chief. APD Chief Michael Geier also reported last year to Judge Brack that he had noticed some “old-school resistance” to reforms mandated by the CASA. At the time, Chief Geier reported he replaced a number of commanders with others who agree with police reforms. However, Chief Geier reported he could not replace the sergeants nor lieutenants who were resisting the reforms because of the union contract.
Federal Monitor Ginger referred to the group as the “Counter-CASA effect”.
The APD Union was not a named party to the original civil rights complaint for excessive use of force and deadly force filed against the city by the Department of Justice (DOJ). Soon after the DOJ initiated the federal lawsuit against APD and the City, the APOA police union intervened to become a party to the federal lawsuit in order to advocate for union interests in city policy and changes to the “use of force” and “deadly force policies.”
The Police Union, despite public comments of cooperation and comments made to the court, have never fully supported the agreed to reforms. The Police Union contributed significantly to the delay in writing the new use of force and deadly force policies.
The union leadership has always been at the negotiating table. For a full year, the police union was involved with the drafting of the “use of force” and “deadly use of force” policy. The union contributed to the one-year delay in writing the policies objecting to many provisions of the policies. The police union repeatedly objected to the language of the use of force policy asserting the policy was unreasonable. This was evidenced by the monitors claim that submitted use of force policies were missing key components and the monitor saw 50-plus changes needing to be made to satisfy union objections.
The union leadership has attended and has sat at counsel table during all court hearings and the Federal Monitor presentations on his reports. During all the Court proceeding where the federal monitor has made his presentation to the federal court, the APOA union has made its opposition and objections known to the federal court regarding the “use of force” and “deadly force” policies as being too restrictive with rank and file. The union has repeatedly claimed rank and file cannot do their jobs even with training on the policies. The major contribution the police union has provided to the reform process is interference, obstruction and delay of the reforms.
What is very problematic is that no one knows for certain to what extent the union is influencing the actions of the sergeants and lieutenants to resist the implementation of the CASA reforms that the union opposes. During the August 20, 2019 hearing Union President Willoughby made it clear the union membership “hates” the CASA, feels the reforms are “a hard pill to swallow” and that they believe “all change is hard”. Willoughby went so far as to say the rank and file are afraid to do their jobs for fear of being fired when he knows they can only be fired for cause and guaranteed personnel rights and procedures.
COMMENTARY AND ANALYSIS
One sentence in the Albuquerque Journal editorial sticks out that identifies the biggest problem affecting implementing the reforms :
“These mid-level supervisors (who bizarrely are in the same union as the rank-and-file they supervise) serve a crucial role in the broader ecosystem of the department, and APD needs buy-in from every one for the community to have any confidence constitutional policing will be standard operating procedures next week, next month and next year.” The people the Journal were referring to are the APD sergeants and lieutenants.
According to the Federal Monitors 10th report:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
All APD police sergeants and lieutenants are clearly part of police management and chain of command and should not be a part of the union. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms. The police union refuses to acknowledge or agree to removal of the sergeants and lieutenants from the bargaining unit knowing it will eliminate the unions ability to influence them in management and it will reduce the size of the dues paying union membership.
The police union has never articulated in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs and “why they hate” the CASA as articulated by the union president. It’s likely the union feels what is interfering with police from doing their jobs is the mandatory use of lapel cameras, police can no longer shoot at fleeing cars, police can no longer use choke holds, police need to use less lethal force and not rely on the SWAT unit, police must use de-escalating tactics and be trained in crisis intervention, and management must hold police accountable for violation of standard operating procedures.
JOUNRAL IGNORES KELLER ROLE IN DOJ REFORM EFFORT
The November 16 editorial was published with a color photograph of Chief Michael Geier. The editorial noted how the Federal Monitor gave a significant amount of credit to the Chief Geier and his “leadership cadre [for hitting] the mark solidly on the policy front” and giving APD credit for achieving 100% compliance in rewriting and promulgating its policies. Conspicuously absent from the editorial was the name Mayor Tim Keller. No credit whatsoever was given by the Journal to Mayor Tim Keller for his role in selecting the “leadership cadre.” City hall confidential sources confirmed that Mayor Tim Keller handpicked virtually all of the Deputy Chiefs based on their commitment to the DOJ reforms.
Two years ago during his campaign for Mayor and then soon after being elected Mayor, Tim Keller said publicly and to the federal court he was fully committed to the implementation of the DOJ reforms and Keller appointed Chief Geier. Keller also recognized that he fully understood that his success as Mayor would be judged on the implementation and success of the DOJ reforms, rebuilding a decimated agency, return to community-based policing and reduce the city’s crime rates. Mayor Keller now needs to be given credit for the amount of progress that has been made by APD with the reforms.
REMOVE SERGEANTS AND LIEUTENANTS FROM UNION
During the next round of union contract negotiations, Mayor Keller should see to it that the city management positions of APD sergeant and lieutenant be removed from the APOA Union bargaining unit. Further, the Keller Administration should seek to have the APOA Union removed as a party to the federal lawsuit, the consent decree and CASA negotiations. What complicates things for Mayor Keller is that he accepted the Police Unions endorsement in 2017 when he was running. Now that he made it known on Nov 5 during the election night radio coverage that he is running for another term, he will likely want the police union endorsement again.
The very last thing APD management and Mayor Keller needs is for sergeants and lieutenants to passively but deliberately oppose the reforms by acting as union operatives as opposed to management, which ostensibly is still happening based on the 10th Federal Monitors Report filed on November 1, 2019.
Sergeants and lieutenants need to be made at will employees and removed from the union bargaining unit in order to get a real buy in to management’s goals of police reform and the CASA.
Otherwise, APD and Mayor Tim Keller will continue to deal with the APD Union version of the “Counter-CASA Effect” and it will take years to get APD in compliance with all of the reforms costing millions more to be paid for audits that report that APD is not in compliance.