On Friday, October 6, 2020, after over 6 years of auditing and $7.5 Million paid to Federal Auditor, APD Monitor Ginger told Federal District Court James Browning Judge overseeing the DOJ reform efforts:

“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.”

On Friday, December 4, 2020 an all-day status conference hearing was held by Judge Browning on the 12th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). During the hearing, it was revealed publicly for the first time that the City and the Department of Justice were negotiating a “stipulated order” for court approval that would create and External Force Investigations Team (EFIT).

During the hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released on 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 Judge Browning:

“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 taken, and in fact recommended by other stakeholders in the case, was to file a “Motion for Contempt of Court” seeking sanctions against the City and APD for intentional violations of the CASA. Another option recommended was to have APD placed in a “receivership” with the appointment of a Special Master to take over the day-to-day management of APD. Creating the EFIT was a compromise approach.

JOINT MOTION FILED

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.

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.

A link to the Motion and the Stipulated Order is here:

https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view<

EXTERNAL FORCE INVESTIGATION TEAM (EFIT)

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.

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. The specialized unit would be disbanded when APD becomes proficient at investigating itself, but no timeline is identified 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.

COMPLIANCE BUREAU FUNDING FOR CASA REFORMS

APD’s existing budgets for the last 2 years contains a “line item” appropriation identified as “PD-PROFESSIONAL ACCOUNTABILITY” which is essentially a consolidation reference to all of APD’s DOJ Compliance functions. The biggest responsibilities of the Compliance Bureau is the ongoing cooperation and working with the Department of Justice (DOJ) consent decree (CASA) and its implementation of its terms and conditions. The Compliance Bureau consists of the Internal Affairs Professional Standards Division (IA), Policy and Procedure Division, Accountability and Oversight Division, Internal Affairs Force Division and the Behavioral Health and Crisis Intervention Section and includes funding for training provided by the APD Academy for constitutional policing practices mandated under the CASA.

Internal Affairs (IA) deals with investigation police misconduct cases, including excessive use of force. Crisis Intervention deals with the crisis intervention teams who deal with the mentally ill and police encounters. Policy and Procedures deals with the review and writing of standard operating procedures that must comply with the CASA reforms. Policy and Procedures deals with the review and writing of standard operating procedures.

2019 -2020 APD BUDGET ALLOCATED $32 MILLION PLUS FOR CASA REFORMS

The City’s fiscal year budgets begin each year on July 1 and end on June 31 the following year.

On July 1, 2019, the Keller Administration released the 2019- 2020 operating budget and general fund appropriations budget. It was a whopping $1.1 Billion for fiscal year 2019-2020. APD had an approved general fund budget of $210,057,000 million dollars, which represented an increase of $12,134,000 Million above the previous year’s budget. APD’s approved budget for 2019-2020 contains a line-item budget of $32,077,000 for “Professional Accountability” which was an increase of $11, 053,000 from the previous year. (See Albuquerque City 2020 approved budget, page 12.)

The 2019-2020 budget contained an increase of 41 full-time positions which were added intra-year FY/19 at a total cost of $1.9 million including benefits and 4 positions were created at the APD Academy to comply with the Independent Monitor and DOJ mandates. Two quality assurance auditors were converted from part-time to full-time to support the DOJ compliance efforts. A chief policy advisor position was added to provide support on policy, best practices and case law development.

The link to the City 2019-2020 city budgets is here:

https://documents.cabq.gov/budget/fy-20-approved-budget.pdf

2020-2021 APD BUDGET ALLOCATS $35,851,000 FOR CASA REFORMS

On Monday, October 19, 2020, the Albuquerque City Council enacted the 2020-2021 fiscal year budget with the fiscal year budget beginning on July 1, 2020 and ending June 30, 2021. The enacted budget totals $1.1 Billion dollars for second year in a row and for that reason is considered a zero-growth budget.

APD continues to be the largest budget department in the city with the city council approving a $212 million budget for the department. Nearly $32 million is coming from the city’s federal coronavirus relief money. The approved budget funds a total of 1,678 full time positions that includes 578 civilian staff and funding for 1,100 sworn police.

During the February 8, 2021, City Council Public Safety Committee, Interim Chief Harold Medina reported that APD has 957 sworn police. Of the 957 sworn police, Medina reported a mere 371 sworn police are in Field Services responding to calls for service or 39% of the entire sworn force. The 371 sworn police taking calls for service are spread out over 3 shifts and 8 area commands to patrol based on crime rates in the areas. Medina also told the committee that Field Services has 6 area commanders, 18 lieutenants, 53 sergeant’s, 21 bicycle officers for a total of 511 officers assigned to field services. The problem is commanders, lieutenants, sergeant’s, and bicycle officers do not patrol the streets and do not take calls for service.

https://www.abqreport.com/single-post/zero-growth-for-apd

The Fiscal Year 2020-2021 approved general fund budget for APD contains a line item of $29,280,000 for “PD-PROFESSIONAL ACCOUNTABILITY”. According August 1, 2019 “Staffing Snapshot”, the Compliance Bureau has total staffing of 61 sworn police consisting of 40 Detectives, 1 Deputy Chief, 3 Commanders, 1 Deputy Commander, 6 Lieutenants, and 10 Sergeants. In addition to the $29,280,000 line item allocation, the 2020-2021 APD approved budget includes:

$5.2 million for continued work to comply with the Court Approved Settlement Agreement with the Department of Justice, which is understood to be funding for the Federal Monitor.

$627,000 to acquire electronic control weapons that have an audit trail to monitor usage and compliance with use of force policies.

$594,000 to purchase on-body cameras, as required by the CASA and state law.

Adding the above funding, the resulting total allocated by the City for the CASA reforms is calculated as follows:

$29,280,000 for “PD-PROFESSIONAL ACCOUNTABILITY”
$5,200,000
$627,000 to purchase electronic control weapons
$594,000 to purchase on-body cameras

TOTAL: $35,851,000

The link to the 2020-2021 budget is here:

https://www.cabq.gov/mayor/documents/final_fy21-budget-presentation-_09032020.pdf

You can review at all Fiscal Year budgets from FY 2007 to FY 2021 at this link:

https://www.cabq.gov/dfa/budget/annual-budget

EDITOR’S NOTE: Since 2014, the Federal Court Appointed Monitor has been paid thus far $7.5 million for the work of 9 auditing professionals. The monitors contract has been extended and is currently being paid $1.5 million a year.

COMMENTARY AND ANALYSIS

The late Senate floor leader Republican Everett Dirksen of Illinois cautioning that federal spending had a way of getting out of control, Dirksen reportedly observed, “A billion here, a billion there, and pretty soon you’re talking real money.” When it comes to the City’s Court Approved Settlement Agreement (CASA), the 271 mandated reforms, and the nearly $35 million being spent a year, it is easy to say were talking real money. Money that would go along ways to fund essential services and social services.

FAILURE TO GIVE ESTIMATED COST OF THE EFIT TEAM

It is downright pathetic that the City and the DOJ want to create an External Force Investigation Team (EFIT) without giving the Federal Judge any sort of estimated cost over and above APD’s budget. No cost breakdown is contained in the motion for the EFIT which reflects and element of pure laziness on the part of the City and the DOJ. Both the City and the DOJ could not careless about actual cost thinking that city finances can always be adjusted with budget cuts or finances can be replenished with more taxes.

The estimated minimum cost of such a specialized unit can be easily projected. According to the Motion, an administrator will first be hired and then upwards of 29 additional personnel will have to be hired. EFIT will be established to assist the APD in conducting use of force investigations by APD officers, which is a highly specialized requiring experience. Applicants will have to submit bids to get contracts and the bids will likely be well over and above paid to entry level sworn police officers which is $65,000 a year. The administrator will likely be on the level of an experienced APD Commander who can earn as much as $80,000 a year while experienced APD detectives can be paid upwards of $75,000 a year when you factor in bonus pay. It likely the EFIT bureau will cost at least $2,255,000 a year minimum. (Administrator $80,000 + 29 Investigators @ $75.000 each a year = $2,255,000)

APD MANAGEMENT FAILURE

The findings of the 12th Monitors report is what prompted the city and the DOJ to try and enter into the Stipulated Order to create the Use of Force Investigation Team. After 6 years, it is APD management and negligence that there is still overt resistance to the consent decree by not taking aggressive action to enforce the proper investigation of use of force and deadly force cases.

The Court Approved Settlement Agreement was negotiated to be fully implemented within 4 years and after a full two years of compliance, the case is supposed to be dismissed. At the time, the Federal Monitor said it was definitely doable, even though he had very little working knowledge of APD. It has now been over 6 years since the settlement with the DOJ was negotiated. The $35 million plus line item contained in the 2020-2021 budget for Professional Accountability and the 61 sworn police assigned to enforce the CASA reforms demands should be more than enough to deal with the reforms. If anything, 61 sworn police is excessive and is and top heavy with 1 Deputy Chief, 3 Commanders, 1 Deputy Commander, 6 Lieutenants, and 10 sergeants. It is more likely than not when the 2021-2022 budget is approved, which will effective from July 1, 2021 to June 31, 2022, even more millions will be added to create EFIT and the additional associated costs.

The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. That is exactly what is happening in Albuquerque, and will continue to do so unless the Federal Court puts the brakes on it and denies the Joint Motion for a new police division to hire outside investigators to oversee the work being done by APD’s Internal Affairs unit in reviewing use-of-force complaints against officers. What you will no doubt have is “police who will police the police who police the police” during an ongoing violent crime wave which is a major the point made by the Albuquerque Journal in its Saturday, February 20, editorial. You can read the entire editorial in the postscript to this article.

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.

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 and the Keller Administration is essentially throwing in the towel on forcing APD to implement the reforms 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.

ENOUGH IS ENOUGH

There have been only 3 consistent factors relating to the CASA:

1. The reforms mandated by the CASA,
2. The same federal monitor and
3. 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.” As was the case before, APD is simply waiting out another Mayoral Administration. 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.

The Federal Monitoring Team after 6 years should know without any doubt what needs to be done with use of force investigation and knows where things are lacking. The 300 plus page audits covering each time the 271 reforms and the Monitor’s continuing refrain “it’s not my job” to manage is no longer cutting it. No matter what is said, the public perception is that he and his group have a very strong financial incentive for APD to fail especially when the the Federal Monitor does possess the knowledge what is wrong with APD, what changes need to be made and what actually needs to be done by APD.

OFF THE TOP OF HIS HEAD

A few years ago, it took a year for the parties to negotiate new “use of force” and “deadly force policies”. The police union contributed significantly to the one-year delay in writing the policies objecting to many provisions of the policies as “unworkable” or “unreasonable”. The police union repeatedly objected to the language of the use of force policy and deadly force policy. This was evidenced by the monitors claim that submitted use of force policy was missing key components and the monitor saw 50-plus changes needing to be made to satisfy union objections. In a conversation with this blog publisher, Federal Monitor James Ginger was asked why he could not just write acceptable use of force and deadly force policies. His response was quick and sure and he said he could do it practically “off the top of his head” within less than an hour but said it was not his job and that his job was to audit and report his findings to the court.

The Federal Court should deny the joint motion, reject the hiring of an outside use force team, suspend the CASA and order the Federal Monitor to take over APD’s Internal Affairs Unit and use of force investigations. The monitor needs to be given full authority over Internal Affairs personnel to the extent of being given direct management and control to issue orders and commands as to how use of force investigations are to be conducted. If the Monitor is unwilling to do more than audit and push paper for $1.5 million a year, the Federal Court and the parties need to find some one else to get the job done. Otherwise the city in all likely looking at 6 more years of failed progress and millions more.

_______________________________________________

POSTCRIPT

On Saturday, February 20, the Albuquerque Journal published the following editorial:

HEADLINE: Amid a Crime Wave, APD Gets Another Layer Of Bureaucracy?

Albuquerque remains in the throes of a crime wave that has held the city in its deadly grip for years. And 2021 is no exception. Homicides in January were at or near record levels. News coverage and neighborhood social media are replete with posts of people hearing gunshots, vehicles being stolen and strangers wandering through yards and driveways, checking for unlocked doors on homes and vehicles.

Mayor Tim Keller’s administration has made adding Albuquerque Police Department officers a priority and has made progress. Still the response to many of these calls from a chronically understaffed APD is: File a report. We don’t need to see your security camera video.

Meanwhile, the homicide unit has a huge backlog of cases and a depressing clearance rate. After major missteps in high-profile investigations like the Victoria Martens and Jacqueline Vigil murders, it’s clear the unit needs more staff, expertise and training. And Thursday, APD revealed it has just four narcotics detectives.

So what’s next on deck on the APD priority list?

Incredibly, it is hiring from four to 29 outside investigators to oversee the work being done by APD’s Internal Affairs unit in reviewing use-of-force complaints against officers. That higher number is almost comical in view of the fact that IA now numbers 15 officers with a mandate to increase the number to 25.

It is part of a stipulation order reached by the city, the Department of Justice and Monitor James Ginger, who has so far been paid $7.5 million to oversee a reform agreement APD entered into with the DOJ in 2014 after DOJ found a pattern of unconstitutional use of force in policing. Ginger issued his 12th status report last November, blasting APD’s processes in reviewing use of force. He said the department was on the brink of catastrophic failure – which is worth noting since it has been six years of his oversight and two years of the current administration at City Hall.

The city’s plan is in response to that 12th report and designed to head off a possible contempt proceeding, which could lead to receivership.

According to the order, which is awaiting action by U.S. District Judge James Browning, the new investigators would report to a yet-unnamed outside administrator and “for each use-of-force investigation evaluate the quality of the IA force personnel’s investigations and immediately notify APD and APD’s legal counsel of any deficiencies or misconduct by IA personnel related to their investigations.”

The order also mandates increasing the number of IA investigators to 25 – which could be hard to do since police officer union President Shaun Willoughby says some of the ones there now want out. The city said the number of investigators of the investigators could be anywhere from four to 29 – a range that in and of itself raises questions. Do we need four people or seven times that many? Seriously? Ginger, of course, would get another contract extension and more money.

This isn’t to say constitutional policing isn’t important, or that APD isn’t guilty at times of use of force outside the detailed policies that have been developed. But there has been – thankfully – a marked reduction in the kinds of misconduct that led to the agreement in the first place.

Things like overwhelming and improper SWAT response or sending a couple dozen officers and K-9s to a report of a couple drunk guys fighting on a bench, one who pulled a knife. De-escalation has become a priority. Meanwhile, Interim Chief Harold Medina has noted a number of people involved in shooting incidents with APD had methamphetamine in their system – which makes de-escalation all the more challenging. Meth and guns are a tough mix.

What might have sounded like good news – just 3.7% of use-of-force complaints sustained in 2018, 1.7% in 2019 – was in essence dismissed by Ginger and used as an exhibit to support his contention IA was just going through the motions. The monitor’s complaints now center on process, so the answer apparently is to police the police who police the police, all at taxpayer expense and at a time the public is fed up with crime. City councilors should ask some hard questions about this new deal.

The link to the Journal editorial is here:

https://www.abqjournal.com/2361529/amid-a-crime-wave-apd-gets-another-layer-of-bureaucracy.html