On November 12, 2014, the United States Department of Justice (DOJ) filed its action against the City of Albuquerque seeking to remedy a pattern or practice of excessive force and deadly force by the Albuquerque Police Department (APD).
In response to the litigation, two days later, the City and the DOJ agreed to a Court-Approved Settlement Agreement (CASA), requiring the City to implement comprehensive reforms at APD to address deficiencies in the areas of use of force, crisis intervention, deployment of specialized units, supervision, management, misconduct investigations, and data collection and analysis.
Editor’s Note: The postscript to this article gives a 4-point summation of what is included in the 271 reforms.
The CASA is a 106-page negotiated Court Approved Settlement Agreement ( CASA) that mandates 271 major reforms. Implementation of the CASA was to be over a 4-year period and after a 95% compliance over two consecutive years in 3 identified compliance areas and the case was to be dismissed. Its now been over 6 years and the case has not been dismissed. 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.”
A link to the court approved settlement agreement (CASA) is here:
MOTION FILED FOR “USE OF FORCE” INVESTIGATION TEAM
On Friday, February 5, the City of Albuquerque and the Department of Justice (DOJ) filed a “Joint Motion For Entry of Stipulated Order Establishing An External Force Investigation Team”. The motion has attached to it a proposed Stipulated Order that has been negotiated between the city and the DOJ with no objection from the court appointed Federal Monitor. The APD Police Union is an intervenor in the case, but did not sign off on the motion and ostensibly was not involved with negotiation of the stipulated order. A hearing must be held by the Federal Judge who must approve the Stipulated Order before it can be implemented.
A link to the Motion and the Stipulated Order is here:
https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view
According to the motion filed, the proposed Stipulated Order will require the City to establish, on a “temporary basis”, an External Force Investigation Team (EFIT) to assist the Albuquerque Police Department (APD) in conducting use of force investigations by APD officers, while also assisting APD with improving the quality of its use of force by police investigations.
The EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the proposed order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.
PROPOSED TO STIPULATED ORDER
The proposed stipulated order provides for the establishment of the “External Force Investigation Team” (EFIT):
“EFIT shall be overseen by an Administrator. The City shall empower the EFIT Administrator to hire and retain the staff necessary to fulfill the requirements of this Order. It is anticipated that the EFIT Administrator will hire and retain a number of investigators, as well as administrative support staff and Supervisors, as necessary to fulfill the duties under the EFIT Administrator’s contract with the City. The EFIT Administrator shall ensure that a sufficient number of EFIT Investigators to meet the requirements of … this Order are physically present in Albuquerque and able to respond to the scene of Level 2 and Level 3 uses of force.”
The proposed Stipulated Order provides that the Independent Monitor will continue to provide extensive technical assistance to the City regarding Internal Affairs processes, including the period before an EFIT administrator is selected. Presumably, the specialized unit would be disbanded when APD becomes proficient at investigating itself, but that is not outlined and neither is the actual cost to the city.
The Stipulated Order also provides that the additional services to be provided by the Federal Monitor will be additional to the auditing work under the CASA. According to the Stipulated Order, the monitor and the city will have to enter into a separate contract providing additional compensation. The Federal monitor’s team has already been paid $7.5 million for 6 years of work and is currently being paid $1.5 million a year. The Federal Monitor employees a 9-member professional team in addition to local staff and the city provides office space.
The Motion outlines the time line for he process:
“In the first months following the entry of the Stipulated Order, the Order requires the City to make three key improvements, in addition to establishing EFIT, to bring its force investigations into compliance with the CASA (Court Approved Settlement Agreement) and to maintain compliance after EFIT is gone.
First: Within two months of the entry of the Order, the Order requires the City to submit to the United States and the Independent Monitor a proposal for redesigning its internal affairs investigation process. After the Parties and Monitor have agreed on the proposal, the City will receive guidance and technical assistance from the Independent Monitor to implement the proposal. The Parties expect that the redesigned process will result in changes to APD’s policies that are long overdue.
Second: The Order requires the City to increase the number of force investigators at APD, a commitment of resources that is necessary to ensure that APD can investigate all force incidents in a timely manner. The Parties anticipate that staffing will increase over time and may fluctuate as EFIT and APD determine whether individual force investigators have the relevant investigative skills.
Third: The Order requires APD to develop new training for force investigators within three months of the entry of the Order. These improvements are necessary to ensure that APD can make positive and durable changes to its force investigations.”
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As a way to consolidate and track all of the initiatives required by the Stipulated Order, the Order requires the City to develop and file with the Court, within 5 months of the entry of the Order, a remedial action plan that “will identify concrete actions that the City and EFIT will take to improve the quality and timeliness of investigations of Level 2 and Level 3 uses of force.” After filing the plan, the City will report to the Court quarterly on its progress in implementing the plan, including metrics that will indicate whether APD is making progress toward regaining full responsibility for conducting investigations of Level 2 and Level 3 uses of force.”
According to the stipulated order, this city will issue a Request For Proposal (RFP) to seek bids for an EFIT administrator by early March. An administrator would be hired by May 3. The agreement does not say exactly how many investigators the EIFT administrator will be given authorization to hire nor how much the unit will cost, but it does say that at least 25 investigators must be hired.
The Stipulated Order says that no EIFT personnel:
“shall have any current or previous employment relationship or contract for services with APD or the City.”
What this means is that no one from Albuquerque, including retired APD or other retired law enforcement personnel can be hired. The practical effect is that out of state people will have to be hired and they likely would have to work remotely from out of state.
USE OF FORCE INVESTIGATION TEAM
It was during the December 4 status conference hearing on the 12th Federal Monitor’s that the “Use of Force” Investigation Team was first revealed to the general public and it was disclosed that the City and the DOJ were negotiating a stipulate order for a “use of force team”. The stake holders in the case, including APD Forward were taken by surprise by the announcement in that they were never told of the negotiations and did not take part or allowed to give input on the proposed Use of Force Team.
Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told the Federal Court:
“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”
The enforcement action that could have been filed is a “Motion for Contempt of Court” seeking sanctions against the City and APD for intentional violations of the CASA. Another option would have been to have had APD placed in a “receivership” with the appointment of a Special Master to take over the day-to-day management of APD, something advocated for by police reform advocacy groups. During the December 4 hearing, many of the friends of court and other stake holders asked that APD be placed into receivership while others also asked that the police union be dismissed from the case.
As presented during the hearing, the investigation team will be totally independent from the city and the APD Internal Affairs Unit and APD Force Review Board. the Use of Force Investigation Team would consist of highly experienced professionals, potentially from all over the country, whose responsibility would investigate level 2 and level 3 uses of force which involve great bodily harm, permanent injury or death. The outside team of experts would interact with APD personnel, gather evidence as needed and conduct interviews if needed and submit final reports within a very short time frame of weeks. Normally, such investigations have been taking upwards of 6 months to a year.
Editor’s Note: Level 1 use of force is force that does not result in injury or complaint of injury; Level 2 use of force force that does result in injury or complaint of injury; and Level 3 is force that results in serious injury, hospitalization, or death.
Killebrew said the proposal is for the city to hire external investigators who could work remotely from anywhere in the country, at least until the pandemic no longer poses a problem. Existing Internal Affairs Force Division detectives would conduct the on-the-ground investigation at the scene, including taking photographs and taking witness interviews. The investigation materials gathered would be sent to the external investigators. The external investigators who would determine if they think force was improperly used. Discipline recommendations would also be made.
The city’s procurement process would be used and the city would fund the services. The goal would be to hire the most qualified professionals with a proven track record. Final reports prepared by the “use of force” investigation team would then be forwarded to the city’s Use of Force Board.
According to Killebrew, the use of force investigation team will not be easily side tracked by APD interference and resistance and put it this way:
“There are not that many human beings that stand between Internal Affairs Force investigators and the chief of police … We believe that if the external team conducts the investigation and recommends a finding of out of compliance and recommends discipline, it will be obvious to us if the external team’s findings are being undermined by the commander over IAFD, the deputy chief or by the chief. We can then target any necessary action at those levels of command.”
Federal Judge James Browning, to whom the case is assigned, stated that a stipulated order creating a “use of force” investigation team was not as intrusive as putting the city under a receivership. However, Judge Browning did question if creating such a “use of force” team outside the city for investigation was a “tremendous loss of sovereignty and self-direction by the city”.
12TH FEDERAL MONITOR’S REPORT PROMPTED CREATION OF THE USE OF FORCE INVESTIGATION TEAM
After the 12th Federal Monitor’s report was released November 2, the DOJ and the City realized that something had to be done when it came to APD’s failure to address use of force investigations.
On Friday, October 6, 2020 Federal Monitor Ginger told the Federal District Court Judge James Browning overseeing the DOJ reform effort:
“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 would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”
On November 2, 2020, the Monitor filed 12th Compliance Audit Report of APD. The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The 12th Federal Monitors’ report contains a summary that highlights major deficiencies that have set back compliance levels resulting is delay of the reforms.
For at least the 4th time, the monitor reported that the “Counter Casa” effect was interfering with APD accomplishing the implementing the CASA reforms. It was in the Federal Monitors 10th audit report that the “Counter CASA” effect was fully explained. 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”.
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“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;”
According to the 12th Monitor’s report:
“[The federal monitor] identified strong under currents of the 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.
“[The monitoring team] have no doubt that many of the instances of non-compliance we see currently in the field are a matter of “will not,” instead of “cannot”! The monitoring team expected there would be a period of time during which mistakes were made while applying the new policies and training, but issues we continue to see transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership.”
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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.
COMMENTARY AND ANALYSIS
It is understood that “settlements” are preferred by the courts instead of aggressive litigation, hearings and trials. Notwithstanding, it is extremely disappointing that the City and the Department of Justice (DOJ) essentially ignored and turned their backs on the citizens of Albuquerque, including victims of police misconduct, the amici groups and public stakeholders who they are supposed to be representing, in order to negotiate the creation of a “use of force investigation team” with the city.
When it comes to government and law enforcement, settlements must include conferring with those who will be affected the most by those settlements. In criminal prosecutions for example, plea agreements are between the government and the defendant in the case. However, there is a “victims bill of rights” in New Mexico and prosecutors have a duty to confer with victims of the crime before agreeing to plea and disposition agreements and sentencing agreements approved by a Judge.
WHERE THERE IS A WILL TO OBSTRUCT AND DELAY APD WILL FIND A WAY
The single most remarkable understatement made during the entire one-day December 4 status conference hearing was made by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew when he said:
“APD has proven over and over again its agility to avoid the requirements of the CASA.”
Nothing gets past Kilebrew and the DOJ!!!! Notwithstanding his comment, Killebrew felt the “use of force” investigation team should be implemented even with the risk of APD continuing to avoid the CASA. The DOJ is seriously mistaken if it feels a use of force team, especially whose work is done remotely, will be able to avoid APD agility and resistance to the reforms.
For the past 6 years, the CASA has been plagued with inconsistencies, conflicts, and the political turmoil. In the last 6 years there have been 3 United States Attorneys General, 2 Federal Judges assigned to the case, 2 appointed New Mexico United States Attorneys, the City has elected 2 Mayors, there have been 3 police Chiefs, the court has called a “reset” of the process 3 years ago after the current Mayor was elected, the APD has undergone at least 3 reorganizations, the high command of Deputy Chiefs and Area Commanders has changed at least 3 times with reorganizations.
The findings of the 12th Monitors report is what prompted the city and the DOJ to enter into the Stipulated Order to create the Use of Force Investigation Team. After 6 years, it is pathetic that there is still overt resistance to the consent decree by not assuming responsibility for investigating use of force and deadly force cases in a proper way.
What the City and the DOJ have done is negotiate a stipulated order to create another level of bureaucracy with the creation of a “use of force team.” Even though motion says that the EFIT unit will established on a “temporary basis”, given APD’s failed track record of the past 6 years and millions spent, it’s more likely than not the EFIT will be around for some time. The DOJ is essentially throwing in the towel on forcing the city to do what is required under the CASA. The DOJ is giving APD another way out of a problem its management and the police union have created on their very own.
There have been only 3 consistent factors relating to the CASA: the reforms mandated by the CASA, the same federal monitor and resistance to the reforms by APD.
The creation of a new use of force team is nothing more than creating another level of bureaucracy that will be costly. It will almost assuredly guarantee that the CASA will continue for any number of years and beyond the 6 years as was originally envisioned because APD will still have not learned to properly do use of force investigations.
It’s more likely than not APD management, the union and rank and file will continue with their efforts of “noncompliance”, not overtly, but in a manner to avoid detection and once again using “agility to avoid the requirements of the CASA.”
Where there is a will to obstruct the CASA reforms, APD and the Police Union always find a way and the City and the DOJ have failed to learn that lesson after 6 years and millions spent on the reform effort.
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POSTSCRIPT
The CASA mandates 271 major reforms. Implementation of the CASA was to be over a 4-year period and after a 95% compliance over two consecutive years in 3 identified compliance areas, the case was to be dismissed. 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.
Among the 271 reforms agreed to by the City and APD are:
1. The city agreed to a complete re write of APD’s Use of Force and Deadly force Policies. 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 are mandated. 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. APD officers are prohibited from firing their weapons at moving vehicles in all but life-threatening situations. APD agreed to revise and update its policies on the mandatory use of lapel cameras by all police officers.
2. The CASA mandates the teaching of “constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with all and especially the mentally ill. 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.
3. 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.
4. 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. 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.
5. 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.