On Friday, January 10, the City of Albuquerque filed a Motion to have certain portions of the federal Court Approved Settlement Agreement (CASA) suspended and placed into “sustained compliance” and “suspend monitoring” of those requirements by the Federal Court approved monitor. The city’s Motion highlights the progress made by the Albuquerque Police Department (APD) in implementing the court mandated reforms under the CASA. You can read the entire 25-page e-filed Motion on the United States District Court for the District of New Mexico docket Case 1:14-cv-01025-JB-SMV, Document 503 Filed 01/10/20, United States of America, Plaintiff v. The City of Albuquerque, Defendant v. The Albuquerque Police Officer’s Association, Intervenor
According to the Motion, the Albuquerque Police Officer’s Association, the sole intervenor in the case, agrees with the relief being sought by the City. However, the court appoint federal monitor takes no position on the City’s motion. The DOJ and the monitoring team have been working with the City and APD on a “self-assessment” plan to determine to what extent APD has in fact come into compliance with all the reforms and the extent of the need for further monitoring.
Under the Federal Court Rules, the Department of Justice (DOJ) is required to file a response to the Motion. The DOJ response will be filed only after the “self-assessment” plan is completed and filed with the court. The intent of the DOJ is to have the assessment completed and filed with the Court before the public hearing that is scheduled for Tuesday, February 11, 2020 at 9:00 am. (Location: Vermejo Courtroom, U.S. Courthouse, 333 Lomas Blvd. NW, Albuquerque.) This is the very first time in over 5 years that the City has filed any kind of Motion in an attempt to dismiss the CASA and the monitoring by the Federal Monitor.
This blog article is a deep dive into the contents of the motion, what the city is asking for and what it may mean in the long term for the City and APD. It is anticipated another blog article will be published on the DOJ’s response to the Motion once filed.
(EDITOR’S NOTE: A history of the federal litigation, a summary of the contents of Federal Monitors 8th, 9th and 10th reports are contained in the postscript to this blog article.)
SUSPENSION AND TERMINATION PROVISIONS OF THE CASA
As a backdrop to what is being requested in the motion, certain provisions of the settlement need to be reviewed. The CASA contains the following suspension and termination provisions:
“Termination of the Agreement
342. 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.
343. If after six years from the Effective Date the Parties disagree whether the City has been in full and effective compliance for two years, either Party may seek to terminate this Agreement. In the case of termination sought by the City, prior to filing a motion to terminate, the City agrees to notify DOJ in writing when the City has determined that it is in full and effective compliance with this Agreement and that such compliance has been maintained for no less than two years.”
The CASA does have a provision that allows suspension of the monitoring. Specifically, Paragraph 302 of the CASA provides:
“302. Where the Parties agree, the Monitor shall refrain from conducting a compliance review of a requirement previously found by the Monitor to be in sustained compliance for at least two years pursuant to audits or reviews, or where outcome assessments or other information indicate that the outcome intended by the requirement has been achieved.”
The link to the full 106-page CASA containing 276 mandated reforms can be read here:
Under the CASA, the federal monitor evaluates compliance in three specific areas:
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.
The CASA was negotiated to be fully implemented over a four-year period. However, because of the previous Republican City Administration’s “delay, do little and deflect” tactics, which was found by the Federal Monitor in his second report, it has taken much longer to implement the agreed to and mandated reforms.
It has now been over 5 full five years since the CASA was signed. Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 3 of the compliance areas, and maintains compliance for 2 years, the case can be dismissed.
WHAT THE CITY IS SEEKING IN THE MOTION
The city wants the federal court to suspend the monitoring activity with respect to “certain requirements” of the CASA and to put other requirements into the two-year “sustained compliance” phase. There are 3 primary areas the city is seeking that sustained compliance be found suspending further monitoring:
1. Behavioral health training of APD officers
2. APD recruitment and
3. APD specialized units.
According to the motion, APD will take steps to remain “vigilant” in preserving the progress that has already be made under the CASA. The “center piece of these efforts is that APD shall conduct regular self-assessments of compliance and shall file self-assessment reports with the court every 6 months.” (Page 3 of Motion.)
If the federal court grants the motion and allows suspension of the monitoring in the identified areas, and after the city files a separate motion to allow self-assessment, the federal monitor will suspend the monitoring in those areas but will review APD’s self-assessment reports for compliance. The federal monitor will also evaluate whether the self-assessment reports reveal any significant concerns threatening continuing compliance with the requirements of the CASA. Further, the monitor will continue reviewing media accounts and other evidence provided to the monitor to determine whether there has been any substantial and significant lapse in compliance with the requirements of the CASA. (Page 3 and 4 of Motion.)
SPECIFIC AREAS OF COMPLIANCE IDENTIFIED BY CITY IN MOTION AS NO LONGER NEEDING MONITORING
The City’s Motion seeks suspension from federal monitoring of identified paragraphs and mandated reforms of the CASA. The specific areas are summarized as follows:
According to the motion, these paragraphs have been in compliance since July, 2017. APD will self-assess compliance and wants the federal monitor to suspend the compliance audits but monitor APD’s self-compliance reports for accuracy. The parties are developing a plan to be approved by the court defining the format and requirements of the self-assessment reports. (Page 6 of Motion)
2. MULTI-AGENCY TASK FORCE COMPLIANCE:
The CASA requires APD to participate in a Multi-Agency Task Force (MATF) under a “memorandum of understanding” (MOU) with other law enforcement agencies to investigate APD officer involved shootings, serious use of force incidents and in custody deaths, and to provide final reports to prosecuting agencies with jurisdiction over any allege criminal conduct by police officers. New use of force “standard operating procedures” will become operative in early 2020. APD Internal Affairs Force Division (IAFD) will be assuming responsibility for investigation Level 3 uses of force. The city is proposing that APD only investigate APD officer involved shootings, in custody deaths and alleged criminal conduct. The MATF and MOU are currently being revised. The Monitor found operational compliance by APD with the MATF and MOU. (Page 7 of Motion)
3.MENTAL HEALTH RESPONSE ADVISORY COMMITTEE (MHRAC):
The CASA requires the City and APD to establish a Mental Health Response Advisory Committee (MHRA) comprising of certain members and representatives from various entities or stakeholders including the UNM Psychiatric Department and providers to the homeless and to those who experience mental health crisis. In the 9th Independent Monitors Report (IMR), the Monitor found that the MHRAC continued to be one of the biggest success stories of APD’s community outreach under the CASA. The 10th IMR found operational compliance. (Page 8 of Motion)
4. BEHAVIORAL HEALTH TRAINING:
Under the CASA, the city and APD agreed to ensure that all APD Academy cadets, field officers and 911 emergency operators received behavioral health and crisis intervention training, including initial training of 40 hours and biannual update training. All such training has been completed. The 9th Independent Monitors report found that APD has continued to appropriately and effectively utilize training curricula that addresses field assessment, identification, suicide intervention, crisis de-escalation, community mental health participation and scenario-based exercise and role-playing exercises. The 10th Monitor’s Report found operational compliance with the behavioral health training mandates of the CASA. (Page 9 of Motion)
Not identified or even mentioned in the City’s motion are 3 major programs that have been implemented to deal with the Albuquerque Police Department’s (APD) interactions with the mentally ill and substance abuse defendants. All 3 programs involve the training of police officers. All 3 programs have the potential to reduce or have reduced the use of excessive force and deadly force by APD.
The 3 APD programs are:
CIT stands for Crisis Intervention Training and ECHO stands for Extension for Community Healthcare Options. In 2014, the CIT-ECHO project was launched by the city with a grant from the Department of Justice (DOJ) Bureau of Justice Assistance to raise awareness of how law enforcement should deal effectively with those struggling with mental health issues. The CIT-ECHO Program consists of weekly video conference workshops with APD and CIT officials.
The EPIC Program:
The acronym “EPIC” stands for “Ethical Policing Is Courageous.” The EPIC program aims to stem police officer misconduct and use of force and deadly force by police officers. The program uses “hands-on scenarios” and role-playing enactments and demonstrations to teach police officers on how to defuse calls for service that start escalating and that could easily result in the use of excessive force or deadly force.
EPIC focuses on proactively preventing uses of force, rather than just punishing officers when damage is already done, including the killing of a suspect. The primary purpose of the EPIC program is to provide police officers with effective and proper training to learn just how and when to intervene when they themselves see other police officer misconduct. The EPIC program is designed to show police officers how to recognize problematic behavior in fellow officers that may trigger a fellow officer to engage in misconduct.
The “LEAD” Program:
LEAD stands for “law enforcement assisted diversion” program. The LEAD Program allows APD officers to determine whether the person they’ve arrested needs to go to jail or would better benefit from a trip to a detox facility or a meeting with a case manager who can help them plug into services such as Medicaid, housing vouchers and substance abuse treatment. APD officers are given full discretion to decide to arrest people on low level charges or to rely on the LEAD diversion program. The main goal of the LEAD program is to send people to services before charges are ever filed which is unlike other court diversion efforts such as the Drug Court.
5.FIELD TRAINING OFFICER PROGRAM:
The CASA requires APD to provide academy graduates with 16 weeks of field training following the academy. The Casa also states requirements for the training of field training officers and the training provided to cadets. The 9th and the 10th Independent Monitors Reports found 100% compliance with requiring cadets to complete 16 weeks of field officer training ensuring that the recruits are trained in multiple area commands, on different shifts and establishing a mechanism for confidential feedback. The motion seeks that the mandate be found in substantial compliance. (Page 10 of Motion)
The CASA originally required APD to conduct a staffing study to determine what level of sworn officers were required to carry out its functions. On December 11, 2015, the 62 page “Albuquerque Police Department Comprehensive Staffing Assessment and Resource Study” was released by the Alexander Weiss Consulting, LLC. The 10th Independent Monitor’s Report found that the staffing study analysis has become less relevant because of the sure passage of time. The parties have agreed that it is premature to conduct another staffing study and therefore the motion seeks that the mandate for a staffing report be suspended. (Page 11 and 12 of motion.) Notwithstanding, the Police Union President has advocated in news interviews the need for yet another staffing report, even though APD is undertaking an aggressive expansion of the Department to recruite 100 officers a year with the goal of having 1,200 sworn police. You can review the 2015 staffing report at this link:
7. RECRUITMENT AND SELECTION:
The CASA has mandates relating to the recruitment of new cadets and lateral hires from other law enforcement departments. Under the CASA, APD was required to develop a comprehensive recruitment and hiring program and a strategic recruitment plan that clearly identified goals of recruitment efforts. The recruitment plan had to include specific strategies for attracting a diverse group of applicants.
According to the CASA, APD’s hiring and selection process must be based on objective minimum standards that comport with best practices and applicable anti-discrimination laws. Further under the CASA, all APD recruits must undergo psychological, medical, polygraph, and drug testing and be subject to background investigations dealing with credit history, employment history, prior use of lethal force and less lethal force and force training and complaint history. An annual recruitment report is also mandated under the CASA. Independent Monitor Reports 9 and 10 found that APD has been in operational compliance with the recruitment and selection requirements of the CASA and therefore the motion is seeking the monitoring be suspended because of operational compliance. (Page 13 of Motion)
8. PERFORMANCE EVALUATIONS AND PROMOTIONAL POLICIES:
The CASA has requirements for APD’s performance evaluation and promotional policies. The requirements are that:
“APD shall develop a fair and consistent performance evaluation system that reviews particular areas relating to constitutional policing, community policing and more.”
The performance evaluation system under the CASA must be formal and supervisors must be held accountable for failing to timely complete performance evaluations. Supervisors are required to meet with reporting officers, discuss the evaluations and develop work plans. Independent Monitor Reports 9 and 10 found that APD has been in operational compliance for the past two years with the performance evaluations and promotional policies of the CASA. The motion seeks to have the performance evaluations and promotional policies be found in operational compliance and the monitoring suspended. (Page 13 of Motion)
REQUEST FOR SUSTAINED COMPLIANCE FINDING BY COURT IN SPECIFIED DIVISIONS
According to the Motion, there are 5 APD Divisions that have now been in operational compliance for the past two years. The motion asserts that APD has demonstrated the outcome intended by the requirements under the CASA and has achieved and demonstrated sustained and continuing improvement in constitutional policing. The Motion requests that the divisions be placed in sustained operational compliance and that FEDERAL monitoring suspended.
Following are the APD Divisions:
1.SPECIAL OPERATIONS DIVISION:
APD’s Special Operations Division (SOD) consists of 4 tactical units: Special Weapons and Tactics Unit (SWAT), Explosive Ordinance Disposal Unit, and the K-9 Unit. The CASA mandates reforms and policies for all 3 divisions as follows:
A. Specialized and enumerated training for the divisions.
B. Policies that address enumerated criteria, including for use of force, force reporting and investigation.
C. Personnel and retention criteria.
D. Annual review of policies including consideration of legal developments and evaluations of after-action reviews.
E. Detail documentation of all call-outs and deployments.
F. Briefings prior to deployment.
G. Annual review of personnel to ensure they meet eligibility criteria.
H. Tracking canine deployments, apprehensions, and dog bite ratios and inclusion of bite ratios in the Early Intervention System.
I. Tracking and analyzing specific data for deployment of tactical units.
(Page 16 of Motion)
According to the motion, with the exception of Force Review Board reviews, all 3 Divisions have been in operational compliance for more than 2 years. Independent Monitor Reports 9 and 10 noted the quality of the documents prepared by the tactical units. The 9th IMR report noted:
“… reports show that members from the tactical units are displaying exemplary work in constitutional policing, integrity, community policing, and critical policing functions.”
The 10th IMR noted that the Special Operations Division improved its operations and exhibiting a culture of “continuous growth and quality improvement.”
2.SPECIAL INVESTIGATIONS DIVISION (SID)
The CASA includes mandates for the management and supervision of functions within the Special Investigations Division (SID). The CASA mandates include the following:
A. Each specialized investigation unit must have policies that incorporate APD’s agency-wide policies on use of force.
B. The specialized investigative units must have protocols to address coordination with specialized tactical units when high risk situations occur.
C. Annual inspections of the weapons used by specialized investigations unit to ensure that they are consistent with the unit’s training mission.
D. Tracking and reporting regarding APD’s specialized investigative unit responses.
(Page 18 of Motion)
The 9th and 10th Monitors Reports states that SID has been in operational compliance for the past 2 years justifying the suspension of monitoring.
3.PUBLIC INFORMATION ON CIVILIAN COMPLAINTS
The CASA mandates the establishment of the “Civilian Police Oversight Agency” (CPOA) by the city. The CPOA is charged with investigating civilian complaints against APD sworn personnel and to disseminate information on how complaints can be filed. The CASA mandates that when a civilian informs an officer that they wish to file a complaint the officer must inform their supervisor. The supervisor must respond and go to the scene and provide to the civilian complaint forms and accept the complaint. The officer that is the subject of the complaint must provide their name and badge number upon request by the civilian. (Page 19 of Motion)
The Civilian Police Oversight Agency has been created, fully funded and staffed with a full time director hired. The CASA requirements for the CPOA have been in full operational compliance for two years. The motion requests that the CPOA mandate be placed in sustained compliance.
The CASA requires APD to adopt and implement promotional practices that are lawful and consistent with best practices. Promotions must be based on police officers’ skills, knowledge, and abilities to promote management duties in core, substantive areas and must consider an officer’s disciplinary history in making promotions. APD has revised its promotional policies that have been approved by the Federal Court. APD has been in operational compliance with the Promotion mandated reforms for two years. The motion seeks to place the CASA requirements on Promotions into sustained compliance. (Page 20 of Motion)
5.OFFICER ASSISTANCE AND SUPPORT
The CASA requires that APD provide confidential, comprehensive mental health services to police officers that comport with best practices and current professional standards. The CASA requires that APD must provide training to personnel regarding officer support protocols to ensure such services. APD now requires a mental health evaluation before allowing a police officer to return to full duty following traumatic incidents, including officer involved shootings, officer involved accidents, and involvement in uses of force resulting in death. All but two of the mandates involving Officer Assistance and Support have been in operational compliance for two years. The Motion requests the officer assistance and support mandates be placed in sustained compliance.
(Page 21 of Motion)
COMMENTARY AND ANALYSIS
It was in November 2014, that the City and the Department of Justice entered into the Court Approved Settlement Agreement (CASA). The link to the CASA is here:
As of November, 2019, a full 5 years has expired since the city entered into the CASA with the DOJ. From all appearances and practical purposes, and from review of the Federal Monitor’s reports, the City and APD have completed the following mandated reforms under the Court Approved Settlement Agreement:
1. After a full year of negotiations, 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 police officers 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 choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.
6. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police 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. Civilian Police Oversight Agency has been created, funded, fully staffed and a director hired.
11. The Community Policing Counsels (CPCs) have been created in all area commands and the CPCs meet monthly.
12. The Mental Health Advisory Committee has been implemented.
13. The CASA identified that APD was understaffed. The City and APD are in the process of spending $88 million dollars, over a four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and grow the department to 1,200 officers. As of January 1, 2020, APD has 949 full time police officers, up from 878 sworn police. The expansion thus far is attributed primarily to hiring from other departments and returning to work APD retirees.
14. In November, 2018 APD achieved 99.6% compliance with primary tasks, 75.4% secondary compliance and 59.5% operational compliance with APD making significant progress in overall compliance.
15. According to the Use of Force Report for the years 2017 and 2018, APD’s “use of force” and “deadly force” is down dramatically , which was one of the primary objectives of the CASA reforms.
After over five years of implementing the mandating DOJ reforms, APD has finally made significant progress in implementing the reforms. The city is to be commended for filing the motion. The motion should be considered precursory to dismissal of the entire case sooner rather than later.
After review of the city’s motion, the DOJ investigation report, the 276 CASA mandates, the 10 Independent Monitors Reports and the reforms implemented, the only conclusion that can be reached is the spirit and intent of the CASA has been fully attained. The City’s “…Motion to Move CASA PARAGRAPHS INTO SUSTAINED COMPLIANCE OR SUSPENDED MONITORING” should be agreed to by the Department of Justice and granted by the Federal Judge. The parties to the case should go even further with a full stipulated dismissal of the case.
The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. With expected, continued implementation of the DOJ reforms a 95% to 100% compliance with all the CASA primary, secondary and operational compliance goals should be achievable within 12 months, if not much sooner. The role of the federal monitor should be reduced, as is being requested in the motion, as well as the continued costs of the monitoring team reduced.
The city should commence negotiations immediately with the DOJ for a stipulated “Order of Complete Compliance and Dismissal” of the CASA, and all causes of action the DOJ has against the city and APD. Otherwise, the city and taxpayers will be sucked into “year after year” of expenses and costs associated with a consent decree whose primary objective has been achieved and whose federal monitor wants another $4 million to audit progress.
All documents related to APD’s settlement agreement can be downloaded and reviewed at this city web site link:
The documents include:
The Settlement Agreement between City and the DOJ
APD Progress Reports
Independent Monitor’s Reports
Use of Force Annual Reports
Use of Force Reports
Following is a history of the federal litigation and a summary of the contents of Federal Monitors 8th, 9th and 10th reports:
On 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 imunities 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) process. The Republican Berry administration considered it a “sole source contract”, meaning the services could not be provided by anyone else, which was highly disputed with the contract awarded by the Berry Administration after recommendations made to it.
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 (CPCs), one in each of the 6 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 choke-holds, 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.
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 former Republican 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. The federal monitors contract had to be extended after the expiration of the original 4 years and the extension was for $1.5 million more in taxpayer funding.
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.
Since his selection and appointment, the Federal Monitor has submitted to the Federal Court 10 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”.
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 federal court 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.
To complete the reforms, APD must reach and maintain 95% compliance in three categories: Primary Tasks, Secondary Task Compliance and Operational Compliance.
FEDERAL MONITORS 8th, 9th, 10th REPORTS
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, “calling it exceptional” 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 Republican Mayor Berry and APD Police Chief Gordon Eden administration.
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;
Achieved 75.4% secondary compliance and
Achieved 59.5% operational compliance.
According to the 8th report, it was the first time APD achieved above 50% operational compliance.
In the 9th audit report that covered the time period of August 1, 2018 to January 14, 2019 the federal monitor found APD was 99.6% in primary compliance, 79% in secondary compliance and 63% in operational compliance. This was up slightly from the 8th audit 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 at 99.6% compliance.
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.
Following is the “Overall Status Assessment” contained in the 10th Federal Audit report:
“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.”
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