On Friday, December 4, an all-day status conference hearing was held “virtually” before Federal District Judge James Browning on the 12th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). Upward of 90 people participated via a ZOOM call. Interest was high on the heels of the audit report showing that Albuquerque Police Department (APD) reform efforts had “failed miserably.”
Some of the groups with standing to address the court asked Judge Browning to hold the City in “Contempt of Court” or to take control of APD away from the City. Neither of these options currently appears to be in the offing. Instead, DOJ and the City will be submitting a “Stipulated Order” for court approval in early January. There has been no public input into the preparation of the Stipulated Order. Neither the City nor DOJ has offered the amici, or friends of the court, and other stakeholders and opportunity to give input on the Stipulated Order.
ALAN WAGMAN GUEST COLUMN
Alan Wagman is a retired Public Defender attorney in Albuquerque. He served on the city’s Police Oversight Task Force in 2013-14 and continues to work on police reform and human rights issue. He has also worked as a legislative analyst. After the December 4 status conference hearing, Mr. Wagman submitted the below guest column for publication on this blog:
(EDITOR’S NOTE: The opinions expressed in this article are those of attorney Alan Wagman and do not necessarily reflect those of the political blog www.petedinelli.com. Mr. Wagman was not compensated for the column).
On Friday, December 4, Federal District Judge James Browning presided over what could have been the most important status hearing in the Department of Justice (DOJ) lawsuit against the City of Albuquerque (the City). The lawsuit is the DOJ Civil Rights Division answer to the Albuquerque Police Department’s “pattern or practice” of unconstitutional use of force. The hearing was important because it came on the heels of a report from Independent Monitor James Ginger that confirmed what many of us knew – that APD has for the entire 6 years of the lawsuit refused to change its ways and is still refusing.
The hearing could have been a turning point. The monitor made clear that the City has “failed miserably.” The door was open for Judge Browning to take judicial action to force change. Despite calls from community groups to hold the City in contempt of court and for the Court to put control of APD in the hands of a court-appointed receiver, DOJ did not ask for either, and Judge Browning did not take the initiative to do it either.
CHANGE DELAYED IS CHANGE DENIED
If this case continues on the track indicated from the hearing, we have change denied. DOJ Special Counsel Paul Killebrew announced that DOJ and the City were working on a stipulated court order – that is, an order that the two sides join in requesting – to create an external team to review APD use of force, determine whether the use of force was within policy or out of policy, and make disciplinary recommendations to the three executive layers of APD hierarchy: area commanders, deputy chiefs, and chief. The City breathed an all-but audible sigh of relief. The police union continued its implausible denials of any role in the debacle.
THE COMING STIPULATED ORDER
Judge Browning agreed to wait for the stipulated order and all but promised to execute whatever DOJ and the City put before him. Judge Browning could have and should have before now simply taken control over the direction of the case. That would have been a momentous moment. It’s been a 6 year wait while APD and City have continuously failed. However, it was at least arguably wise for the judge to wait until collapse of the Court Approved Settlement Agreement (CASA) before asserting judicial authority.
But now that the CASA has collapsed, community groups urged Judge Browning to assert his authority. Instead, Judge Browning told the parties that he would not take any steps that DOJ did not request, stated that DOJ had the City “over a barrel,” and announced that he would essentially do whatever the DOJ asks him to do.
We only have a partial outline of what the stipulated order will look like. DOJ and the City are still negotiating its terms, with intent to present it to Judge Browning in January 2021. From what we know, though, there are both procedural and substantive problems with the stipulated order.
PROCEDURAL PROBLEMS WITH THE STIPULATED ORDER
The stipulated order is being prepared in the face of APD’s refusal or inability to police itself and end its decades-long pattern or practice of unconstitutional use of force upon its victims – the residents of Albuquerque. We know that the stipulated order will deal with how use of force will be evaluated and adjudicated. Presumably, the stipulated order will cover other areas as well, but the public is at this moment in the dark about what those areas might be. The closed-door negotiations between DOJ and the City cut out the victims of APD’s unconstitutional policing.
As it stands, the residents of Albuquerque are expected to sit and wait for DOJ and the City to present something to Judge Browning which – under currently expressed intentions – Judge Browning is likely to rubber stamp. This is not what government of the people, by the people, for the people ought to look like. In the run-up to the CASA, DOJ was admirably open to receive input from the public, even though the City was not.
The negotiations for a stipulated order need sunshine, including public hearings and receptiveness to public input, from both DOJ and the City.
SUBSTANTIVE PROBLEMS WITH THE STIPULATED ORDER
The one provision of the stipulated order that we know about is that an external team from around the country, meeting virtually, will review evidence collected by APD investigators to determine whether APD officers using force complied with policy. Under the stipulated order as described, the external team will make disciplinary recommendations which area commanders, deputy chiefs, and the chief will follow or not. The external team removes APD direct supervisory personnel – i.e., sergeants and lieutenants – and internal reviewing bodies from the process of evaluating the evidence.
This system is intended to remedy two issues pointed out by the Independent Monitor in the most recent report:
First, that the APD officers involved in current internal reviews – including sergeants and lieutenants and bodies such as Internal Affairs and the Force Review Board – have been improperly giving officers a pass for both major and minor violations of use of force policy; and
Second, executive level staff – including area commanders, deputy chiefs, and the chief – regularly endorse the improper decisions of the sergeants and lieutenants.
As noted, the anticipated stipulated order will put the evidence review and recommendation functions in an outside team. As explained by the special counsel for DOJ, because there are very few levels of review above the external team, this will, in theory, make it possible to identify executive-level staff who are not enforcing policy.
FOUR MAJOR PROBLEMS WITH THE EXTERNAL USE OF FORCE TEAM AS PROPOSED
There are 4 major problems with the external use of force team the City and the DOJ are proposing.
First: The external team will still rely upon APD personnel to conduct the on-scene investigations into use of force incidents. The Independent Monitor’s report is replete with examples of deficient and biased evidence collection in use of force investigations. When the on-scene investigations are faulty, the external team’s assessments will be equally faulty. It’s GIGO, the old computer rule: Garbage In, Garbage Out.
Second: DOJ claims that with only three executive levels above the external team – area commanders, deputy chiefs, and the chief – an external board will make it possible to identify executive level failures to evaluate disciplinary procedure and impose proper discipline. But we already have a history and paper trail of executive level failure from these same people. We know from the monitor numerous instances where executive level staff have ignored deficient investigation, dishonest evaluation, and derelict follow through on discipline. These executive level staff are known misfeasors who can be terminated at any time. Why not just do it now? And why has the City not done it before now?
Third: The external board will do nothing to cure the known serious problems with the internal bodies at APD that the external board will replace. The stipulated order simply takes the work of evaluating the evidence gathered in use of force incidents away from these internal bodies. Who will be disciplined for past wrongdoing? Where is the corrective action? What is expected to happen when the external team leaves and responsibility is returned to these same internal bodies?
Fourth: The stakeholders, friends of the court, and the public have no idea what is actually in the stipulated order because negotiations are confidential between the city and the DOJ.
THE QUESTION NO ONE CAN ANSWER
Judge Browning asked DOJ Special Counsel Paul Killebrew twice if the DOJ approach to the lawsuit will change after January 20 when President Joe Biden is sworn in. The first time, Killebrew responded, “You’re putting me in a tough spot, Your Honor.” The second time, the answer was, “We serve one president at a time.” It highly likely that there will be major change at the Department of Justice on January 21, but it may be too late. The stipulated order will likely be in force by then.
POLICE UNION’S ROLE AS A PARTY HAS BEEN DESTRUCTIVE
The Albuquerque Police Officers Association (APOA) was allowed to intervene in the lawsuit early on and is thus a party. However, APOA’s role is and has always been destructive. The Independent Monitor provides detail after detail of how APOA members stall and delay internal investigations until the deadline for imposing discipline is passed. The deadlines for disciplinary action to be taken is a negotiated term in the police union contract with the City. This much is easy to understand. What is a little more complicated is how the APOA union, with the apparently willing collusion of APD brass, misuses the 1967 United States Supreme Court decision in the case of Garrity v. New Jersey (Garrity) to obstruct investigations into APD police officer conduct.
In Garrity, the Supreme Court ruled that when a government official is required, as a condition of employment, to give a statement about the official’s own conduct, the official must give the statement or risk being terminated for failure to give the statement. However, because the statement is given under threat of employment consequences for failure to give a statement, the statement is considered to be coerced and under the Fifth Amendment may not be used in a criminal case against the official.
As Garrity applies to APD and use of force cases, APD officers are required as a condition of employment to provide statements describing their version of incidents involving use of force. Failure to give this statement can lead to discipline, up to termination. Garrity prevents the statement from being used against an officer in a criminal prosecution. Garrity does not obviate the officer’s obligation to give a statement. And, above all, Garrity does not protect an officer from being fired or disciplined for refusing to give a statement.
Nonetheless, the Independent Monitor documented case after case in which APOA interfered with disciplinary investigations, cited Garrity even where no crime was alleged, advised officers to refuse to give statements, and falsely claimed that Garrity gives officers the right not to make a statement.
Adding injury to insult, it appears that the APD officers who refuse to give statements are not disciplined in any way. Clearly, APOA only gets away with this because APD brass cooperates. Presumably, every officer who fails to give a required statement could – and should – be fired. The same goes for APD management, the City’s Chief Administrative Officer, and the Mayor, all of whom allow this to happen.
This is a clear breach of the letter and spirit of the CASA. But at the December 4 hearing, with the Independent Monitor’s evidence piled high against APOA, the union pathetically and implausibly denied any role in subverting the CASA or obstructing use of force investigations.
It’s time for Judge Browning to terminate APOA’s status as a party. From the get-go, APOA has done nothing but attempt to sabotage reform – far too often successfully. APOA has shown no interest in finding a constructive role for itself in this process. It’s time for them to go.
WHAT, THEN, MUST WE DO?
We must make it known that we the people have lost faith in the Mayor’s office and the command staff of APD to effect change, that a stipulated order leaving the City in control is too little and too late, and that the time has definitely arrived for the Court to take over APD. Judge Browning has a well-deserved reputation for being thoughtful and thorough. It is up to us to give him both reasons and support to take this action.
On the other hand, if we are to be saddled with a Stipulated Order which falls short of the mark, there are still things that we, the people of Albuquerque, can do. For one thing, we must demand that DOJ and the City conduct hearings to allow public input into the content of the Stipulated Order.
At least one element of public input should address how the current contract between the City and APOA undermines compliance with the CASA and obstructs reform. The public must insist that any court order clear out the contractual provisions that block constitutionally-required reforms under the CASA. This can easily be done and here is how:
The current contract expired on June 30, 2020 because the City and APOA could not reach agreement on a new contract. The New Mexico Public Employees Bargaining Act, Section 10-17E-18(D), NMSA 1978 provides that until a new contract is signed, the expired contract and all of its terms remains in force until replaced with a new contract. But the contract is ripe for replacement.
Under the expired contract, sergeants and lieutenants – who are really management – are included as members of APOA. With contractual protections, they can and do obstruct disciplinary proceedings against miscreant officers – often by delaying procedures until the deadline in the contract for imposition of discipline has passed. Because the sergeants and lieutenants are themselves protected by the contract, they are protected from consequences.
Therefore, we must demand that the stipulated order remove sergeants and lieutenants from APOA and extend the deadline for imposition of discipline. Here is how it can be done:
1. The Stipulated Order can contain two stipulated findings:
(A) that allowing sergeants and lieutenants to be covered by the contract obstructs constitutional policing; and
(B) that the 90-day deadline for imposition of discipline obstructs constitutional policing.
2. Forbid the City and APOA from entering into any contract that includes provisions which obstruct constitutional policing.
3. Order the City to initiate procedures to invoke the mandatory arbitration provision in state law, Section 10-17E-18(B) NMSA 1978.
The time for the Court, DOJ and the City to act is now.
THE END OF THIS REFORM PROCESS WOULD BE THE END OF THE BEGINNING; WHAT IF, BY SOME MIRACLE, APD SUDDENLY CAME INTO COMPLIANCE?
If suddenly APD were to comply with the settlement agreement and the lawsuit went away, here is what APD would look like:
1. APD would continue to over-arrest low-income people and people of color;
2. APD would continue to give out “quality of life” citations for low-level offenses, which lead to fines that people can’t afford to pay, which lead to arrest, which lead to loss of job, loss of housing, loss of family, and, ultimately, the kind of stress and desperation that underlie much criminal activity;
3. APD would continue to respond to welfare checks and behavioral health crises by unnecessarily and unjustly charging people with criminal offenses, including felonies – Mayor Keller attempted to address this earlier this year, but his proposal was half-baked;
4. APD would continue to botch criminal investigations and refuse to admit mistakes;
5. APD would continue to write reports that don’t describe at all what their body-worn cameras show; and the list goes on.
However, APD would do all this without beating anyone up or killing anyone. More work lies ahead. We need not wait on Judge Browning, the DOJ, or the City to begin.