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 report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The link to the City web site with entire 12th Federal Monitor’s report is here:
On Friday, October 6, the Federal District Court Judge James Browning held a hearing on the 12th Federal Monitors Report. Normally, such a hearing is an all day long, in person hearing allowing the public to attend. As a result of the corona virus, the hearing was held “virtually” but because of technology difficulties, the public and the press were prevented from attending.
A transcript of the October 6 hearing reveals that Federal Court Appointed Monitor James Ginger told the court:
“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. 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. So as a monitor with significant amount of experience – 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.”
CONTEMPT OF COURT AND RECIEVERSHIP SOUGHT
On Friday, November 4, another “virtual” public hearing will be held in federal court. In anticipation of the hearing, attorneys and advocacy groups have submitted letter to the Federal Judge who has been assigned the case. The attorneys include prominent Civil Rights Attorney Peter Cubra, NM State Representative Moe Maestas whose firm represents a group known as the Community Coalition.
Also submitting a letter to the court was ABQ Forward that advocates APD reform mandated by the Court Approved Settlement Agreement (CASA). APD Forward includes 19 organizations who have affiliated with each other in an effort to reform APD and implement the DOJ consent reforms. Members of APD Forward include Albuquerque Health Care for the Homeless, American Civil Liberties, Bernalillo County Community Health Council, Common Cause New Mexico, Disability Rights New Mexico, Equality New Mexico, League of Women Voters of Central New, Mexico New Mexico Conference of Churches, New Mexico Criminal Defense Lawyers Association, Sierra Club Rio Grande Chapter, and the Transgender Resource Center of New Mexico.
A link to the court document “Notice Letters From Amici and Casa Stakeholders Regarding Issues to be Addressed During December 4, 2020 Public Hearing” with the letters is here:
https://www.scribd.com/document/486597382/Amici-Stakeholders-letters#from_embed
The reform advocates, after six years under the consent decree, in their letters for the first time include a request that the Federal Court be far more aggressive with mandating the reforms. One letter goes as far as to asked for the city to be held in contempt. Mr. Cubra in his letter suggests a finding, based on the Twelfth Monitor’s Report, that the City and the Albuquerque Police Officers Association be held in civil contempt of Court.
APD Forward in its letter points out that the Federal Monitor reports several places he traces resistance to interference by the police officer’s union. APD Forward goes on to ask the question “Why is the Albuquerque Police Officers’ Association still included as a litigant in the CASA when they have been actively undermining reforms?” Mr. Maestas goes as far as to suggest that the city renegotiate the police union terms that are conflict with the CASA. If new union contract terms are negotiated, one term that needs to be negotiated is who are allowed in the bargaining unit.
Peter Simonson, speaking on behalf of the APD Forward coalition of advocacy organizations, said the group has considered asking before that the court to hold the city in contempt. It did so when the Mayor Berry Administration and then City Attorney Jessica Hernandez secretly recorded conversations with Independent Monitor James Ginger in an effort to show biasness on his part and have him removed from the case.
According to Simonson, the current situation under the Mayor Tim Keller Administration is now so desperate that putting APD under an outside receivership might be the only way for it to reform. Simonson put it this way:
“I don’t see a way out, and I don’t think APD Forward sees a way out for this reform to succeed. … It doesn’t seem to be an exit strategy. … Given the systemic nature of the problems that the monitor has identified, it seems to us that the situation is too dire to hope that the department and the city can pull together.”
Simonson, on behalf of APD Forward, also points out that the Federal Monitor has been raising red flags in several of his reports, but no action has been taken by the Department of Justice (DOJ). Both Simonson and Cubra said their frustrations extend beyond APD, the city and mayoral administrations. They said they are frustrated that the DOJ hasn’t already done more to make sure APD is complying with the settlement agreement.
Simonson put it this way:
“If they are going to be the legal representative of our community, we need them to stand up and react to these kinds of indications … That feels to me like this conversation should have started much earlier.”
Civil Rights Attorney Peter Cubra in his letter to Judge James Browning said that if the Court finds the city in contempt of court, he could appoint an administrator to oversee APD and give instructions to subordinates in the city government and said:
“That would be a receivership, where the agent of the court could act as the de facto police chief in order to get the existing agreed court order complied with.”
Cubra noted that the Keller Administration formulated new policies and procedures for investigating excessive use of force a couple of years ago and that those were implemented earlier this year. However, Cubra said systemic problems remain and added:
“Not only did this report find things are still out of compliance, but it found both city employees and union employees actively interfering with the implementation of the court order. … They got a second chance, and they blew it.”
A link to related news coverage and sources is here:
https://www.abqjournal.com/1522741/advocacy-groups-criticize-pace-of-police-reforms.html
MONITOR’S SCATHING ASSESSMENT AT “TOP OF ORANIZATION”
In the 12th Federal Monitors Report file with the Court on November 2, and covering the period of February 1, 2020 to July 31, 2020, Independent Monitor James Ginger wrote a scathing condemnation of APD’s ability to police itself and hold officers accountable when they improperly use force. Ginger wrote:
“APD’s compliance efforts have exhibited serious shortfalls during the … reporting period. These range from critical shortfalls in management and oversight of the APD Training Academy, significant and deleterious failures relating to oversight and discipline; and executive-level failures regarding oversight, command and control, discipline, supervision, and training.
…
Since the inception of this monitoring process in 2015, we have been as open and honest as possible with APD executive leadership and have never noted a problem at APD without following up with suggestions regarding how APD might best address that problem. At this stage of the process most of those discussions at the executive level have fallen on deaf ears. After six years of suggestions, recommendations, and problem-solving meetings, … as of the end of the … reporting period, much remains to be done.
To be perfectly clear, based on the monitor’s experience with these projects, [which] dates back to the 1990s, APD is on a path that reflects deliberate indifference to the requirements of the CASA. We highly recommend that the City take direct steps to put APD on an alternate trajectory regarding compliance efforts:
• APD’s new leadership, which assumed leadership responsibilities after the close of this reporting period, must step up and insist on compliance.
• Management needs to design simple, effective, trackable systems for process improvement.
• Supervision needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.
• Most importantly, line officers need to engage in actions as designed by policy, law, and best practice, not past customs.
Until these actions take place, compliance will be exceptionally evasive.”
MONITOR FINDS OVERSIGHT OF THE ”USE OF FORCE” INEFFECTIVE
The monitoring team was highly critical of APD’s Use of Force Board (UFB) and reported:
“… [D] during the reporting period we encountered system-wide failures related to the oversight of force used by APD officers and supervisory and command review of those uses of force. The monitoring team has been critical of the Force Review Board (FRB), citing its past ineffectiveness and its failing to provide meaningful oversight for APD’s use of force system. The consequences are that APD’s FRB, and by extension APD itself, endorses questionable, and sometimes unlawful, conduct by its officers.
Convening an FRB serves several key purposes, chief among them is to create a forum for executive oversight that pushes department-level expectations down through all levels of supervision. … Of the cases … reviewed that were approved by the Force Review Board, the [monitoring team] saw:
-Instances where obvious uses of force went unreported and investigated
-Evidence of supervisory failures
-One instance of misconduct in which unjustified force was used on a handcuffed person who was likely suffering from a form of mental disability. …
What this means is simple: that after two years of conceptualizing, recasting, and implementing new use of force policies; delivering meaningful training of those policies; training IAFD personnel to properly investigate uses of force; putting a video review unit in place; exhaustive technical assistance from the monitoring team; and reconstituting the FRB under new policies and training; the system is still ineffective in providing oversight of uses of force.
During the … reporting period, APD continued to struggle to establish a system of force oversight and the accountability for officer conduct. These struggles have significant influence on the organization’s efforts to achieve Operational Compliance. Still evident are systemic failures that allow questionable uses of force and misconduct to survive without being addressed in any meaningful way.”
Regarding one disturbing use of force incident the Monitor reported:
“After six years of ‘reform’ at APD, after six years of acute and intensive technical assistance and assessment from the monitoring team, after six years of exhaustive (and critical) reports from the monitor; after six years of ‘effort,’ this knowable and egregious case floated through (several) levels of review at APD … (on-scene officers; on-scene supervisory personnel; ‘upstream’ area command supervisory and management personnel; video review unit personnel; IAFD; and FRB) and all … of those levels managed to ‘not see’ a clear and (convincing) incident of deliberate excessive use of force against an individual obviously suffering a crisis.”
POLICE UNION “COUNTER CASA AFFECT” STILL PROBLEMATIC
The 12th Federal Monitors’ report contains a summary that highlights major deficiencies that have set back compliance levels. For at least the 4th time, the monitor reported that the “Counter Casa” effect was interfering with APD accomplishing the implementing the CASA reforms. The Federal Monitor has defined the Counter CASA effect as a group of high ranking APD sworn police officers including Sergeants and Lieutenants who resist the reforms. Sergeants and Lieutenants, although management, are allowed to be part of the police union and can only be terminated for cause.
According to the 12th report:
“[The federal monitor] identified 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.”
During this reporting period, the monitoring team often found in its reviews of management and oversight practices, a near myopathy at APD when it comes to assessing actions in the field against the requirements of APD policy and the CASA. Supervisors and command level personnel have a deleterious tendency to ignore the requirements of policy and training, and at times to even support processes to hide or circumvent internal systems designed to ensure compliance to established policy.
…
When a major … CASA-critical command such as Internal Affairs can allow union representatives to hijack internal investigations and can allow officers to respond to salient , and reasonable, fact-finding questions by simply reading a … into the record [that they cannot be compelled to testify] as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors. “
The 12th Federal Monitor’s Report Highlights 5 major areas of union interference:
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.”
COMMENTARY AND ANALYSIS
After 6 years, 2 Mayors, upwards of $30 Million spent and police union interference, hope springs eternal that the Federal Court and the Department of Justice will finally take aggressive action to deal with APD, including the APD Police Union. No one should hold their breath. Truth be known is that the stakeholders, the amici groups and the Federal Monitor have all been warned more than once over the years that they needed to be far more aggressive in demanding results from APD.
I TOLD YOU SO
When Federal Monitor James Ginger first arrived in Albuquerque over six years ago, he was warned in private in a meeting at the United States Attorney Office what would happen. Dr. Ginger was told in a blunt manner that APD would resist any and all efforts to reform and that what was needed was for APD be placed in receivership. Ginger was also told that the Internal Affairs should be abolished. Ginger was specifically told that after 4 years of the consent decree, APD and the city would be no better off than it was before he started. His response was it was not his job to tell APD what to do, he had no management nor control over APD and that all he could do was audit and report to the court. Now 6 years have passed and the department is no better off now than when the reforms began to be implemented.
On May 25, 2017, in a guest editorial column published by the Albuquerque Journal it was advocated that a Special Master be appointed to take over APD.
The column said the Department of Justice and the US Attorney should seek contempt of court and sanctions against the APD command staff for deliberate noncompliance with the Court Approved Settlement Agreement and seek appointment of a special master to take over APD.
Following are applicable portions of the guest column:
The Monitor complains the lack of scrutiny given by the department’s highest-ranking officer’s in use of force cases is “mystifying” and “startling”.
How many times does the Federal Monitor have to tell the Federal Court that APD is not complying with the federal court settlement order, has mislead the Court, before a “Motion for Contempt of Court” is filed seeking contempt of court sanctions and requesting a Special Master be appointed?.
…
The DOJ should seek “contempt of court” and sanctions against the APD command staff for “deliberate non-compliance” and seek appointment of a Special Master to take over APD.
The entire APD chain of command must be removed and replaced with a new generation of leadership and not from within the ranks of APD.
A national search must be conducted to identify and hire a new Chief of Police, hire new Deputy Chiefs and a new chain of command to assume control of APD.
The City Council can mandate civilian management over APD with a civilian Police Commissioner to assume responsibility for implementation of the DOJ reforms.
APD has repeatedly shown it cannot police itself and APD Internal Affairs should be abolished.
APD Internal Affairs functions to investigate police misconduct cases and use of force cases can be done without using sworn police.
The investigation of police misconduct cases and excessive use of force cases not resulting in death or nor serious bodily harm can be done by “civilian” personnel investigators.
The function and responsibility for investigating APD misconduct cases and violations of personnel policy and procedures can be assumed by the Office of Inspector General in conjunction with the City Human Resources Department and the Office of Internal Audit.
Until there is a change in the entire APD command staff, we can expect to continue to be “mystified” and “startled” by the lack of progress and “deliberate non-compliance” of the DOJ consent decree mandated reforms and the disappearance of the DOJ reforms into the black hole known as APD.
The entire APD chain of command must be removed and replaced with a new generation of leadership and not from within the ranks of APD.
The link to the full guest column is here:
https://www.abqjournal.com/1008291/apd-is-going-in-the-wrong-direction-on-reform.html
OTHER ARTICLES
There have been other published articles that have reported on the Federal Monitor’s reports, APD’s and the Police Union’s failure to comply with the consent decree and advocating what should be done. Dates, titles and links to those articles are here:
1. November 15, 2020 “ABQ Journal Editorial On 12th Federal Monitor’s Report Short On Identifying What Needs To Be Done With APD And The Reforms; Mayor Tim Keller Only Has Himself To Blame For Reform Failures”
2. November 9, 2020 “12th Federal Monitor’s Report: APD “On The Brink Of Catastrophic Failure”; “Failing Miserably To Police Itself”; Police Union Obstructs Reforms; COMMENTARY: Remove Sergeants And Lieutenants From Union; Abolish APD Internal Affairs.
3. October 10, 2020 NY Times: “How Police Unions Became Such Powerful Opponents to Reform Efforts”; This Sounds WAAAY Too Familiar! Dismiss Police Union As Party To Federal Lawsuit”
4. June 20, 2020 “Federal Judge Overrules APD Police Union Motion On “Use of Force” Policy; Union Needs To Get On Board With New Policy”
5. June 8, 2020 “ ‘Counter Casa Effect’ Impedes Both DOJ Reforms And “#8 Can’t Wait” Metrics”
6. May 6, 2020 “Federal Monitor Files 11th Compliance Audit Report Of APD Reforms; “Counter Casa Effect” Still Problematic; Order 100% Operational Compliance Within 6 Months Or Replace Chief Or Deputy Chiefs To Get Job Done”
7. November 18, 2019 “Glossing Over Or Ignoring APD’s “Counter Casa Effect” Does Not Make Problem Go Away”
8. November 7, 2019 “10th Federal Monitor’s Compliance Report: “Counter Casa Effect” Alive and Well Within APD; Move To Dismiss Union From Case; Remove Sergeants and Lieutenants From Police Union”
9. August 23, 2019 “APOA Police Union Is “Counter CASA Effect” Within APD; Remove Sergeants and Lieutenants From Union; Kudos To APD Chief Michael Geier On Reforms”
10. August 19, 2019 “Convoluted Federal Monitors Third “Outcomes Measures and Analysis” Report Red Flag For Another $4 Million Contract; Trump DOJ Has All But Ended Federal Police Reform; Dismiss ABQ’s Consent Decree”
WHAT NEEDS TO BE DONE
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.
CONLUSION
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. The amici groups and the Federal Monitor also bear some responsibility and lamenting over what has happened does not get the job done.
After 6 years of work under the CASA, it is not at all likely the Federal Court will be inclined to place APD under a receivership. Nor is it likely that the Federal Monitor will want to do anything more than to continue with his audits and be paid even more than the $4.5 million he has already been paid. Also, in 2021, the municipal election for Mayor will be held and whatever changes made now may also be subject to another Mayor being elected.
For these reason, other options need to be implemented to compel APD to get the job done now. 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.