Since November 16 2014, the Albuquerque Police Department (APD) has been under a Federal Court Approve Settlement Agreement (CASA) mandating 270 reforms after the U.S. Department of Justice investigation found a “culture of aggression” within APD with the its use of excessive force and deadly force, especially when dealing with people with mental illness and having psychotic episodes. Over the last 10 years, upwards of $64 million dollars in settlements and judgements have been paid out for APD’s use of excessive force and deadly force.
The CASA mandated APD adopt a new system to hold officers and supervisors accountable for misconduct and violations of policies, especially violations of excessive use of force and deadly force. Personnel procedures were implemented which included outlining details how use of force cases and deadly force cases must be investigated. The CASA requires far more reporting by officers and field supervisors. It 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 and deadly force.
KOAT TARGET 7 REPORT
On September 17, KOAT Target 7 reported on police misconduct reports that had not been published by APD since last year. Under the CASA and APD policies, APD is required to report on police misconduct complaints every 4 months. When APD was notified of the failure to disclose, APD said it was an oversight and quickly published two missing reports online.
Links to the Target 7 report and to an Albuquerque Journal report are here:
Interim Chief Harrold Medina when asked about the failure said he did not know why the reports were not published and said:
“I don’t have the exact answer as to why we had the delay. In terms of gathering data, it is widely known that is an area we struggle with we take ownership of and we are working to increase our abilities to gather that data. … I hope that from this point forward we are able to publish our data on time and we can correct our lack of being able to meet the deadlines of the past.”
The reports list every incident in which officers were accused of wrongdoing, what policies they violated, if any, and how they were punished. The number of policies violated at APD skyrocketed 275% and suspensions jumped by more than 350%. Data from July 2018 to June 2019 was compared with from July 2019 to June 2020. The data reviewed included civilian employees such as APD dispatchers as well as sworn law enforcement officers.
Once the two reports were published, Target 7 reported the following 4 major findings:
1. The number of policy violations being investigated jumped from 291 to 913.
2. The number of policies violated increased from 190 to 716.
3. The number of violations requiring a suspension rose from 52 to 237.
4. Five times more police employees were fired compared with the previous reporting year.
Interim APD Police Chief Harold Medina had this to say about the dramatic increase in disciplinary action:
“We are holding officers accountable when they need to be held accountable. This is a positive thing. For a lot of years going back decades, we didn’t see these types of numbers in termination. One of the things we need to build upon is public trust and legitimacy in the community.”
Interim Chief Medina said some of the increases can be explained by APD following requirements mandated by the Department of Justice (DOJ) consent decree and that includes reporting lower level policy violations like not showing up on time or being insubordinate. According to Medina the DOJ told them “that APD was allergic to discipline at one point. I think those were the words that were used.”
APD UNION REACTION
Police Union President Shaun Willoughby downplayed the statistics by saying:
“This is not egregious. This doesn’t mean that Albuquerque cops are bad and can’t follow policy.”
Willoughby argued that officers are being punished for insignificant things such as not putting away lapel cameras properly or wearing sunglasses while speaking to the public. Willoughby had this to say:
“What I see happening is officers not using force when they should. I see officers hesitating. I see officers not wanting to engage with the public simply because they don’t want to go to internal affairs again. They don’t want to get in trouble. They don’t want to have to tell their families ‘I got in trouble and I am being investigated again.”
COMMENTARY AND ANALYSIS
It is downright embarrassing that Interim Chief Harold Medina would actually say the DOJ told “APD was allergic to discipline at one point. I think those were the words that were used.” Those words cannot be found in court pleadings, nor heard in open court during hearings on the CASA, nor have they been used in any press release by the DOJ. Medina’s comments reflect an ignorance of the reforms, his failure to attend court hearings on the CASA, his failure to read any of the audits and reports on APD’s failure to implement the reforms. If Medina has in fact read any of the Federal Monitor’s audits, it may be an issue of his reading comprehension on his part.
When the Union President says the increase in number of disciplinary actions “doesn’t mean that Albuquerque cops are bad and can’t follow policy” he is clearly trying to downplay the problem and he is attempting to discredit the DOJ process and by doing so confirms his opposition to the reforms. The Union President’s comments about what he sees as officers not using force and seeing officers hesitating to use force is in fact evidence that the reforms are working and maybe finally being understood by them. The union President’s attitude presumes that APD officers are always justified using force when they decide to use force, making the use of force and deadly force more reactionary as opposed to being more deliberative. Police Union President Shaun Willoughby also conveniently ignores that the Federal Monitor placed blame directly upon the union membership of Sergeants and Lieutenants as trying to thwart the reforms by not following policy.
The spike in the number complaints for violating policies by APD personnel skyrocketing 275% and suspensions skyrocketing to more than 350% can be directly attributed to a more aggressive approach by APD management to fully implement the 270 DOJ mandated reforms. This should come as no surprise given that the Federal Monitor in his last two reports identified how problematic and how mid-management and command rank supervisors were resisting, failing or actually thwarting the reform efforts. The Federal Monitor identified the resistance to the reforms as the “Counter CASA” effect.
COUNTER CASA EFFECT EXPLAINED
It was on September 10, 2018, at a status telephone conference call held with the US District Court Judge presiding over the Court Approved Settlement Agreement (CASA) reforms that Federal Monitor Dr. James Ginger first told the court 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 collective bargaining unit they remained in their positions and could not be removed by the Chief. Then APD Chief Michael Geier reported to the court 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”.
10th FEDERAL MONITORS REPORT
On November 1, 2019, Federal Court Appointed Monitor James Ginger filed with the Federal Court his 10th compliance audit report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). The audit report covers February 2019 through July 2019.
The link to the 10th Federal Monitor’s report is here:
According to the Federal Monitor’s 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”.
Under “Counter CASA Effects” in his 10th report the Federal Monitor reported:
“Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example:
• Sergeants assessed during this reporting period were “0 for 5” in some routine aspects of CASA-required field inspections;
• Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met;”
10th FEDERAL MONITOR’S REPORT FOUND WEAKNESSES WITHIN CHAIN OF COMMAND FAILING TO ACT AND DISCIPLINE
The Federal Monitor reported serious and significant delays in reporting impacting discipline:
“A serious and significant tendency exists among a large percentage of field supervisors—and some in the mid-management and command ranks—to continue to routinely supersede or discount executive authority by delaying reports of officer behavior requiring action until discipline can no longer be applied due to union contract restrictions.
Key elements of supervision and command are either not cognizant of the need for focused, detailed, and careful review of field practices, or they are deliberately noncompliant regarding these issues. This is particularly true of the requirement that APD officers activate their OBRDs, as required by policy and training.
We have noted a significant number of supervisors who ignore failures to activate OBRDs as required by policy, or if they do happen to note these failures, they tend to rationalize the causes of those failures. Few if any such failures result in meaningful interventions. In one case in which multiple officers failed to activate their OBRDs when required by policy, the monitoring team was the only oversight element that noticed this obviously “knowable” deviation.
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’. “
See pages 284 and 285 of 10th Federal Monitor’s Compliance Report at this link:
1Oth MONITOR REPORTS SERIOUS LAPSES IN LAPEL CAMERA USAGE
The Federal Monitor reported 2 major serious lapses by APD during the reporting period that are potentially fatal shortcoming in the compliance process. According to the federal monitor, the shortcomings need to be addressed immediately and clearly by APD.
The two major shortcomings reported are:
“[There are] … serious lapses in internal reporting, supervision, and command oversight that are in need of continued attention and improvement. Put simply, at this point, supervisory processes and command oversight remain basically unchanged, or actually moving backwards, by failing frequently to either note policy (and CASA) violations and failing frequently to take clear and unequivocal steps to inform officers that they have violated policy or procedures. [The] “corrective actions” that do occur are often executed at the lowest levels of the disciplinary process, e.g., verbal or written reprimands, regardless of the seriousness of the violation.
The most frequent CASA violations are also in the most crucial aspects of CASA compliance, e.g., the widespread and unnoticed practice of many APD patrol officers failing to activate their OBRDs [lapel cameras] when required, or even turning off their OBRDs in the middle of a given contact. This point of failure often tends to interdict the systems improvement process, as APD is effectively blind to in-field violations—and for that matter, best practices—by its field personnel. These failures are seldom noted by supervisors, and even less likely to be noted by lieutenants and commanders.”
“COUNTER CASA EFFECT” STILL NOTED IN 11TH REPORT
On May 4, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 11th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA).
The report covers the eleventh monitoring period from August 1, 2019 to January 31, 2020. The 11th Federal Monitor’s report can be found here:
In his 11th report, the federal monitor reported that APD personnel:
“were still failing to adhere to the requirements of the CASA found in past monitoring reports, including some instances moving beyond the epicenter of supervision to mid- and upper management levels of the organization.”
The monitor found that:
“some in APD’s command levels continue to exhibit behaviors that “build bulwarks” [walls] preventing fair and objective discipline, including a process of attempting to delay and in some cases successfully delaying the oversight processes until the timelines for administering discipline had been exceeded. [The] delays prevented an effective remedial response to behavior that is clearly in violation of established policy.”
The Federal monitor reported that:
“since the beginning of the CASA compliance process that there were a few at APD who were overtly resistant to the CASA. [The Monitor] in the past [has] found evidence of a “counter-CASA effect” among some at the supervisory, mid-management, and command levels at APD. Those who knowingly or subconsciously count themselves in this group are beginning to face pressure to change their assessment of the value of the CASA. In some cases [they] have faced reasonably prompt and appropriate corrective efforts from the current executive levels of the APD for behavior that is not congruent with the CASA. … this as an essential “way forward” if APD is to move into full compliance. The remaining issue is that this pressure is neither uniform nor persistent.”
11th FEDERAL AUDITORS REPORT COMPLIANCE STATUS ASSESSMENT
EDITOR’S NOTE: A summary of the 3 compliance levels is contained in the footnote to this blog article.
In the 10th Federal Monitor’s Report, APD was reported to have met 100% of CASA-established primary compliance requirements during the reporting period. To quote 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.
In the 11th audit report that covered the time period of August 1, 2019 and ended in January 31, 2020, the federal monitor found APD was 100% in primary compliance, no change from 10th report, a 93% in secondary compliance, a change of 14.8% from the 10th report, and 66% in operational compliance, a change of 3%.
Primary Compliance relates mostly to development and implementation of acceptable policies and conforming to national practices.
APD is now in 93% Secondary Compliance as of the 11th reporting period, which means that effective follow-up mechanisms are beginning to be taken to ensure that APD personnel understand the requirements of promulgated policies in the areas of 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 66% Operational Compliance with the requirements of the CASA, which means that 66% 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.
INCREASES IN DISCIPLENARY ACTION REFLECTS SARGEANTS AND LIEUTENANTS ENFORCING THE MANDATED REFORMS
There is a definite “chain of command” when it comes to APD. All Commanders, Deputy Chiefs and the Chief are at will positions that serve at the pleasure of the Administration, either the Mayor or Chief. APD has a clear line of authority that separates management from rank and file sworn police officers that must be preserved and honored. Police sergeants and lieutenants by virtue of their titles, responsibilities, management and supervisory authority over sworn police officers are part of the “chain of command” management team of the police department.
APD police sergeants and lieutenants are on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies. In other words they are the point personnel for “operational compliance” under the court settlement and they still are not getting the job done when it comes to “operational compliance.” This point was repeatedly made by the Federal Monitor when he said “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. In other words, without the 100% support of the sergeants and lieutenants to the CASA and mandated reforms, there will be little or no progress made with “operational compliance” and reaching a 95% compliance rate will take years.
The very last thing APD management needs is for sergeants and lieutenants to passively or deliberately oppose the reforms and acting as union operatives as opposed to management. The increase in disciplinary action reflects that APD mid management who are part of the union are perhaps beginning to buy into the reforms despite the Union President’s attempt at downplaying the spike in disciplinary actions.
APD police sergeants and lieutenants are in the union collective bargaining unit that creates a clear conflict of interest and sends mixed messages to rank and file sworn police officers. APD police sergeants and lieutenants are the ones on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies.
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. 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 city should demand that the management positions of APD sergeant and lieutenant be removed from the APOA Union bargaining unit.
The CASA was negotiated to be fully implemented over a four-year period. It has now been over 5 full years. Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in 3 compliance areas, and maintains compliance for 2 years, the case can be dismissed.
OPERATIONAL COMPLIANCE LEVELS
For the purposes of the APD monitoring process, “compliance” consists of three levels: primary, secondary, and operational compliance levels.
The 3 compliance levels are:
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 be 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 such as 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.
Page 9 of 307, Case 1:14-cv-01025-JB-SMV Document 578 Filed 05/04/20