On November 2, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 12th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA).
The monitor’s compliance report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The Federal Monitor’s 12th report is 356 pages long. It follows the format as all the previous 11 reports. It’s a detailed audit of every paragraph of the consent decree and for that reason it is tedious and difficult to read. The link to the City web site with entire 12th Federal Monitor’s report is here:
ALBUQUERQUE JOURNAL EDITORIAL
On Sunday November 15, the Albuquerque Journal published the following editorial entitled “Albuquerque residents, police need timely feedback on reforms”
“Being on “the brink of a catastrophic failure” is a pretty bad place to be.
And no doubt shocking to the people of Albuquerque to find ourselves there with the federal Court Approved Settlement Agreement designed to ensure constitutional policing by the Albuquerque Police Department, especially when you consider that we are six years and more than $25 million into it.
The city entered into the agreement after the Department of Justice concluded APD had demonstrated a pattern of excessive use of force.
Despite several much more upbeat reports along the way from the federal monitor, Dr. James Ginger, one could reasonably conclude we’ve gone from substantial progress to impending doom in the last 18 months.
The administration of Mayor Tim Keller and his interim chief, Harold Medina, are quick to blame ousted chief Michael Geier for the downward spiral. Medina told the Journal Editorial Board last week that Geier became reluctant to impose necessary discipline – sending the wrong message to officers on the street.
“The chief stopped listening to his deputy chiefs and started to go his own way,” Medina said.
Ginger, who said APD was “allergic to discipline,” says the problems are deeper. “If this were simply a question of leadership, I would be less concerned,” he told the court in a hearing last month. “But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street.
“I’ve been doing this since the ’90s – I would have to be candid with the court and say we’re in more trouble here right now today than I’ve ever seen.”
While initially portraying Geier’s ouster in September as his decision to retire, the mayor and his chief administrative officer later – after Geier refused to go quietly – said the reform effort had stalled and that was one reason the chief had to go.
When it comes to Geier, it wasn’t always that way. Keller, who is just finishing up three years in office, cut short a national search, saying Geier was the perfect guy to be chief. And in a report last year Ginger said he was pleased with Geier’s efforts and personal involvement.
So what changed?
For starters, we are now in the hardest part of the reform effort. Policy development and training are either done or well on the way to being done. Now, it’s compliance with the training and new policies on the street. Also, we’ve had to deal with the pandemic and a recent survey of officers who said morale was in the tank.
In any case, according to Ginger’s most recent report, field officers were failing to report use of force, detectives in Internal Affairs were “going through the motions” and the high-level Force Review Board that examines serious cases for training, policy and compliance flaws was allowing subpar work. In summary: APD has “failed miserably in its ability to police itself.”
Is all this unduly harsh? The department has done some good work in the CASA effort but City Attorney Esteban Aguilar Jr. says the goal here is to be a “national model for constitutional, community-based policing” and by necessity that requires focus on things that need to be corrected.
One case Ginger highlighted was a man in an emotional crisis who was subjected to an unnecessarily high level of force – bordering on sadistic – that was cleared by every level of the APD review process, including the Force Review Board. One change now in effect that could prevent a recurrence is a system where officer video is reviewed and included in the review process as it moves up the chain.
Seems like a no-brainer, and a six-year slow learning curve.
Is there blame to go around? Yes. This ball has been in the Keller administration court for nearly three years now. Geier was his guy. It was just four months ago that the mayor and Geier were touting a new “Accountability Report Card” dealing with officer compliance with on-body camera policies.
And Medina is Keller’s guy. He makes no bones about laying the problems at Geier’s feet. Geier, meanwhile, says Chief Administrative Officer Sarita Nair was trying to micromanage the department and Medina was working constantly to undercut him.
Sounds like one of those “brink of catastrophic failure” scenarios all by itself. Certainly not a formula for effective management at a time of trying to deal with a pandemic and implement CASA.
And does the union that represents police officers have too much clout and is able to “hijack” IA interviews, as Ginger claims?
And how about Ginger? Shouldn’t he be having more timely conversations or perhaps shorter summary reports for APD to act on before dropping a bombshell once or twice a year – something Medina and Aguilar said they hope to arrange. Ginger’s getting paid plenty. Perhaps the focus should be on timely information that could lead to fixing problems.
Medina is correct when he says that to get to where we want to be it will take culture shift. He says we get there through extensive training and appropriate discipline when policies are violated.
“As other officers see what happens when standards aren’t followed that’s when you get culture change,” he said. The expectations have to come from the top.
No argument there. But he acknowledges the other side of that coin: While requiring police to use minimal force necessary and showing “we are not reluctant to administer discipline,” officers need to not be afraid to do their jobs.
It’s a tall order. And when can we expect to know whether we’ve pulled back from that catastrophic brink? Not for a while, according to Medina and Aguilar. They say the next report from Ginger – which isn’t expected be released until well into 2021 – will cover several months while Geier was still at the helm and before a full-on press to change use of force in the field began.
But given this stark assessment, it’s not fair for the residents of Albuquerque or officers on the street to wait months for what essentially is a report that’s somewhat dated by the time it’s made public. This most recent report covered the time period of February through June.
People deserve to know what’s happening closer to real time – APD has been remarkably slow with its own “report cards” to the public – before we learn we are on the brink. Or that we’ve gone over it.”
The link to the Albuquerque Journal Editorial is here
DINELLI COMMENTARY AND ANALYSIS
The November 15 Journal Editorial, as detailed as it is, failed to address a number of points that need to be remembered. It also failed to suggest any real solutions as to what needs to be done now with APD.
CURRENT MANAGEMENT STILL PART OF THE PROBLEM
For the last 3 years, Keller appointed CAO Nair and Interim Chief Medina worked closely together to manage the day to day operations of APD. It is common knowledge within the APD command staff that Harold Medina will do anything and say anything Mayor Tim Keller and CAO Sarita Nair tell him to do and want him to say. It is also common knowledge that it was Medina that orchestrated Geier’s forced retirement with the help and backing of Keller’s political operative Nair. Medina’s ultimate goal is to be appointed permanent chief and Keller is likely going to do just that after another sham national search.
Interim Chief Harold Medina is part of the very problem that brought the Department of Justice (DOJ) here in the first place. It was the past APD management practices that resulted in the “culture of aggression” found by the DOJ that lead to the federal consent decree after 18 police officer involved shootings and the findings of excessive use of force and deadly force by APD. It is not at all likely, despite whatever public comments he makes, that Interim APD Chief Medina will ever truly be committed to all 270 Federal mandated reforms. One thing for sure is that First Deputy Chief Harold Medina is not the person who should be appointed permanent Chief.
APD NEEDS CLEAN SWEEP OF HIGH COMMAND MANAGEMENT
When candidate Keller was running for Mayor, he promised sweeping changes with APD, a national search for a new APD Chief and a return to Community Based policing. During Mayor Tim Keller’s first 8 months in office, Keller did not make the dramatic management changes he promised, but he a relied on past management of the department and past practices. The current Deputy Chiefs are not outsiders at all but have been with APD for a number of years and are eligible for retirement. Keller’s “new” and present Deputies are a reflection of APD’s past. APD’s current command staff are not a new generation of police officer fully committed and trained in constitutional policing practices.
The statement made by Mayor Tim Keller that former Albuquerque Police Chief Mike Geier simply wanted to retire appears to have been as bogus as it could get. In the 12th Federal Monitor’s report, the monitoring team found that APD has completely failed to police itself, pointing to major problems with the former police chief and the former APD Academy Commander. The 12th report outlines multiple cases where officers failed to accurately report use of force cases and the report places the blame directly on APD leadership.
APD needs a clean sweep in management and philosophy to remove anyone who may have assisted, contributed or who did not stop the culture of aggression found by the Department of Justice and who have resisted the reform process during the last 3 years of the consent decree. Mayor Tim Keller needs to conduct a national search to find a new Chief who is not already with APD and allow whoever is chosen to run APD department free of his interference or the interference of CAO Nair. Mayor Keller should take this as an opportunity to also remove all the current Deputy Chief’s and allow whoever he selects to be the new Chief allow them to select and bring in their own command staff.
The Journal editorial barely mentions the APD Union when it asks the question “Does the union that represents police officers have too much clout and is able to “hijack” IA interviews, as Ginger claims?”
It obvious from reading the 12th report that the union membership of sergeants and lieutenants are still at the center of the “under currents” of Counter-CASA effects. The police union has made its opposition and objections known to the federal court regarding the use of force and deadly force policies. The union has always argued that the new use of force and deadly force policies were too restrictive with rank and file claiming police cannot do their jobs and that their hands are tied.
The police union leadership have said in open court that the mandated reforms under the consent decree are interfering with rank and file officer’s ability to perform their job duties. During the August 20, 2019 status conference, the APOA union President Shaun Willoughby made it clear his union membership attitude towards the CASA reforms. District Court Judge Browning asked APOA Union President Shawn Willoughby what he and the union rank and file felt about the CASA. Willoughby’s responses were a quick condemnation of the CASA when he said “we hate it”, “we’re frustrated”, the reforms and mandates are “a hard pill to swallow”, that “all change is hard”.
According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. The police union has never articulated in open court and 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.
What was so damn laughable is when Union President Willoughby says that the union cooperated and participated with the reforms unlike all other Departments in other cities faced with a consent decree. What the union has actually been doing for the last 6 years was disrupting the process by not being fully committed to the reforms and changes and doing what it could to water down the changes to the “use of force” and “deadly force” policies.
Given the Federal Monitors criticism and what is contained in the 12th report, it is downright laughable that Union President Willoughby would actually say in an interview that the rank and file are doing a “much better job than the report lays out” and that he believes officers understand the importance of reporting excessive force. It obvious from the entire 12th report they do not especially when the monitor says in the 12th report:
1.“… [When] … Internal Affairs … allow union representatives … and … officers to respond to salient , and reasonable, fact-finding questions by simply reading a Garrity statement … into the record, as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors.”
2. APD Internal Affairs routinely permits officers and union representatives to hijack internal fact-finding.
3. “[There] are strong under currents of Counter-CASA effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.
4. Many of the instances of non-compliance seen in the field are a matter of “will not,” instead of “cannot”! The Monitor reports he see actions that transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership.”
5. Supervision, which includes Lieutenants and Sergeants in the union, “needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”
REMOVE SERGEANTS AND LIEUTENANTS FROM POLICE UNION
APD is a “para-military” organization and as such the “chain of command” must be honored and the lines of authority must not be blurred to the point where management and subordinates become one and the same for the purpose of enforcing policy. Allowing management positions to be part of employee bargaining unit is a recipe for disaster, which is exactly what is being played out with the Court Approved Settlement Agreement (CASA).
Sergeants and lieutenants need to be made at will employees and removed from the collective 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 current police union contract expired on June 30. The City and the Union have now suspended their negotiations because of the corona virus pandemic and the uncertainty of the city’s revenues for the new fiscal year that begins July 1. The union contract negotiations must commence soon. Until a new union contract is negotiated and approved, the terms and conditions of the old contract will remain in effect.
The Police Union no doubt wants to continue the terms of the expired contract, including who is in the collective bargaining unit. There is no real excuse to delay negotiations on the police union contract. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.
Another option the City and the Department of Justice need to explore is to move for the dismissal of the police union from the federal court proceeding. This will allow APD command staff and management more authority do its job with enforcement of the CASA mandates and implementation of all 270 reforms.
ABOLISH APD INTERNAL AFFAIRS
Another option that needs to be considered is to abolish APD’s Internal Affairs Unit. APD has consistently shown over decades it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice. The APD Internal Affairs Unit needs to be abolished and its functions absorbed by other civilian departments.
The investigation of police misconduct cases including excessive use of force cases not resulting in death or serious bodily harm should be done by “civilian” personnel investigators, not sworn police. The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by police should be assumed by the Office of the General Council in conjunction with the City Human Resources Department.
The Office of Independent Council could make findings and recommendations to the APD Chief and Police Oversight Board (POB) for implementation and imposition of disciplinary action.
It is clear from the 12th Federal Court Monitors report that “Operational Compliance” and the “counter casa effect” have been and continue to be the biggest sticking points for APD and present the biggest obstacles for the department under the consent decree.
Operational Compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency. In other words, 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.
After 6 years of work under the CASA, the City and the Department of Justice need to recognize that as long as the Police Union continues to be a party to the case and Sergeants and Lieutenants are allowed to be part of the collective bargaining unit, not much more is going to be accomplished. And neither is relying on the current interim Chief and Deputy Chiefs.
After almost 3 years in office, Mayor Tim Keller under his leadership still has a police department that is failing miserably to police itself and on the brink of catastrophic failure. Keller has only himself to blame given the fact he personally selected those that have been in charge of APD and he went back on his campaign promise to hire a new Chief from outside the agency.