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” (EFIT) in the 2014 case filed by the DOJ against the City and the Albuquerque Police Department (APD) for civil rights violations and excessive use of force and deadly force.
According to the Motion and Order, 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 approved 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:
On Friday, February 26, U.S. District Judge James Browning held a hearing and approved the Stipulated Order between the city of Albuquerque and the DOJ. Both the City and the DOJ insisted that time was of the essence to allow the City to issue Request For Proposals (RFP) to hire EFIT members by contract. Judge Browning signed the Stipulated Order but said he intends to issue a written opinion on the matter in April giving his findings based upon what was brought out during the hearing. Under the approved order, the city will hire an administrator who will then hire a number of investigators for EFIT.
According to the approved order, the city will seek to hire an administrator by early May and then start hiring the team. According to the approved order, the city will attempt to return full responsibility to the internal investigators within 9 months but that time frame could be extended, if needed.
The order requires the outside investigators to accompany internal affairs detectives to all scenes where an APD officer uses force on a person that causes injury, hospitalization or death. The external investigator will be privy to all evidence, documents and investigative notes and will evaluate the quality of the internal investigator’s work and notify APD and attorneys if there are any deficiencies.
EVENTS LEADING UP TO EFIT
It was on Friday, October 6, 2020, that Court appointed Federal Monitor Ginger told Federal District Court James Browning:
“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 during an all-day status conference hearing on the 12th Compliance Audit Report of the APD reforms mandated, it was revealed publicly for the first time that the City and the DOJ 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.”
During the December 4 status conference hearing, Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew said:
“APD has proven over and over again its agility to avoid the requirements of the CASA.”
During the February 26 hearing to approve the stipulated order, Paul Killebrew told the court the motion was necessary because after 6 years the police department is still not holding officers accountable for using force that is out of policy. Killebrew told Judge Browning:
“…[W]hat we have is a city that has failed to comply with that court order over and over and over again. It not an option right now to do nothing. If we sit back and wait, using all the tools that we have already been using, I don’t know why we would expect things to change on their own. The sense of the United States when we received the monitor’s report was that additional interventions were required.
When we read [the Independent Monitor’s 12th report], we believed that there were likely grounds for contempt, and that we could probably make a good case for a receivership, at least as it regards serious force investigations. This is essentially something short of a receivership, but far more extensive than what is occurring now. What we’re talking about is having external folks assisting Albuquerque investigators in each investigation to ensure that those investigations identify out-of-policy force and to ensure that there is a strong factual record available so that policy violations can be identified and that officers can be held accountable. That is simply a nonnegotiable term of the consent decree. We must have officers held accountable for out-of-policy force, and after six years, we cannot wait for that to happen any longer.”
PARTIES REJECT CHANNEL 7 AND POLICE UNION FALSE CLAIMS
On February 4 and February 11, Channel 7 broadcast highly critical reports of the DOJ consent decree in its Target 7 reporting. Both reports singled out the Federal Monitor and the reform process under the Court Approved Settlement Agreement (CASA) as the reason for the city’s spike in violent crime rates.
In the February 11 Target 7 report Shaun Willoughby, President of the Albuquerque Police Officers’ Association said:
“The whole [reform effort] system is set up to fail and the taxpayers and the people that live in this community like me and my family are the ones that are taking the brunt of [violent crime]. … Really look at this process. … It is absolutely out of control. … The entire department and the processes within it are out of control. Your officers are running out the door. Really look at every single state or agency that’s been involved in this process. … What is happening? Did it bring harmony and trust with the community? I don’t think so.”
Willoughby was essentially blaming the DOJ reforms for the city’s high crime rates in Albuquerque which is a false narrative .
Links to related blog articles on the KOAT TV news stories are here:
During the February 26 hearing to approve the Order authorizing the EFIT, Judge Browning took note of the KOAT TV news reports as well as Albuquerque Journal articles. The Judge also disclosed that the court had received correspondence from citizens making the same accusation. Judge Browning asked the attorneys representing the City, the DOJ and the Police Union point blank if they thought that the Court Approved Settlement and the reforms were the cause of the increase in City’s high crime rates.
According to a transcript of the February hearing, Judge Browning asked the following question of DOJ United States Attorney Paul Killebrew:
“I think this week we saw on the front page of the Albuquerque Journal that our violent crime rate is rising, and concerns about that. And there has been some suggestion by people in the news media and perhaps the police association and others, letters I’ve received, that this consent decree is the cause of crime in the community. I know you’re part of the Department of Justice, and they were just in here all morning fighting crime. So what’s your thoughts about the impact of this consent decree and perhaps additional costs as a result of this EFIT on the rising violent crime in Albuquerque?”
Mr. Kilebrew responded as follows:
“… [W]hether a city’s investment in a consent decree is causing crime, I am dubious about that prospect. The research that’s out there which has looked for correlations between crime trends and cities that have consent decrees does not show this kind of correlation. So I am doubtful that this correlation really exists. For decades and decades it was a department that did not invest in accountability of its officers. They weakened its [Internal Affairs] IA structure, they did not appropriately staff its IA department, and so now, when they’re under a court order that requires those structures to have integrity, it requires a very large up-front investment, larger than they have made in the past. And that is simply, again, not negotiable. It’s unfortunate that we’re in a situation where they now have to make this large investment, but it was unavoidable ultimately if they’re going to comply with the law.”
Judge Browning asked the Police Union Attorney Fred Mower if the consent decree was causing the the city’s high crime rates in the following manner:
“… All right. Let me ask you, Mr. Mowrer, you were very careful both in your issues and concerns and then your motion opposing the joint motion not to get into this area, but I have watched Mr. Willoughby’s comments publicly, and I think they’ve been most pronounced by Nancy Laflin on Channel 7, that the consent decree and then, in addition, this additional layer that we are laying on top with the EFIT is contributing or even a primary or major cause of the rise of crime in the community. Is that the position of the police association or your views, that that’s the reason that crime is rising is because of this consent decree or this EFIT?
Attorney Fred Mower answered the court as follows:
“Well, Your Honor, I think to simplistically state it like that, no. I don’t think the APOA can take the position that this consent decree that’s gone on, as Mr. Killebrew has indicated, going on seven years now, and the monies, the millions of dollars that have been spent, and now this new proposal with unidentified costs is a driver of what the crime rate is happening in this town. … I can’t say, and I don’t think it’s easy to prove that the money being spent here is what’s driving crime in Albuquerque. I think we’re like a lot of major cities. We’re facing dynamics because of just the city, closeness to cartel issues, closeness to issues concerning violent crime in a lot of major cities.
THE COURT: Well, that was going to be my next question. You hang around with a lot of policeman in a lot of courtrooms. What do you think the cause of the rise of crime in Albuquerque and particularly violent crime is? … What’s your thoughts … as to why we’re having a rise in crime here?
MR. MOWERY: Your Honor, as I’ve kind of indicated, I believe in fairness to all. There are multiple factors. I would say that the last one you just raised is an issue; that there is — the lack of bail bonds and quick release of individuals who are accused of violent crimes is contributing. I think the access and lack of control of arms, weapons, is a problem. I think that — and I hate to go this broad, but, Your Honor, I think there is a breakdown in our society in some ways of our morals, discipline, and control which is contributing. I think the proclivity of drugs present in the city of Albuquerque is contributing to this. There is a factor of mental illness in the city of Albuquerque. There are — I know you’ve seen, Your Honor, as you drive the city streets a lot of homeless people downtown. And all big cities have this problem. But I think there are multiple, multiple factors that are contributing to this, and that’s just a very short list. … ”
The Police Union attorney made it clear he was not speaking for the Union President but for his client the Police Union itself. The police union attorney’s response came as a surprise to many in that it was Police Union President Shaun Willoughby who last month made the serious accusation the CASA reforms are responsible for the city’s high crime rates. Sources have confirmed that the Union President or union supporters solicited Channel 7 to do both investigative reports providing the station with the false narrative.
Albuquerque City Attorney Estaban Aguilar had this to say about the accusation that the consent decree was causing an increase in crime:
“… I want to be sensitive to the comments that we hear publicly that consent decrees add or increase crime in a particular area and that monitors in general have their own financial incentive for changing the bar or prolonging the process. That isn’t happening right now. You know, I want to be very clear that we do not see that happening. What we see are issues with the review process. As I’ve indicated before, especially to members of the community, the monitor and his team are officers of the Court and we would expect that they will continue to interact with the parties and with the Court with a duty of candor as officers of the Court. If that were not to be the case and we were to find information that would reflect an ulterior motive or an improper motive, we would address that with our partners. That isn’t going on right now. … ”
The consent decree has been in place for six years, or a good portion of the beginning phases of that. The APD had not bought inand was not, in my view, taking steps to fully and faithfully execute its obligations under that agreement. The City reset that in 2017 [under the Keller Administration], and essentially started over. ”
RIGHT TO DISMISS CASE
During the hearing, Judge Browning asked Assistant United States Attorney Paul Killebrew if the court had authority to dismiss the case if he wanted to in the following manner:
[W]hat are the chances of this consent decree being tossed out by me or anybody else in this case?
Mr. Killebrew responded as follows:
Good question, Your Honor. I think on the first question, of whether you have the authority to terminate the consent decree sua sponte, I think you do, because you have an ongoing obligation to ensure that this consent decree is fair, reasonable, adequate, and not the product of collusion. And I think if evidence came to light that this consent decree failed to meet those criteria, it would be reasonable for the Court at least to request briefing from the parties on those issues that you could make a considered ruling on it.
Both the City and the DOJ requested that the court sign off on the order as presented without any further delay so the process can begin in hiring the EFIT team. The parties could not provide the court what the ultimate cost will be for the EFIT team, but said it would be likely cheaper forcing changes now than after the fact litigation.
COMMENTARY AND ANALYSIS
The court approving the order to create a External Force Investigation Team is disappointing. Where there is a will to obstruct the CASA reforms, APD and the Police Union always find a way and this was even admitted to by the DOJ. The City and the DOJ have failed to learn that lesson after 6 years and upwards of $35 million a year spent on the reform efforts.
By approving the agreed to Order to create the EFIT, Federal Judge Browning has essentially given the City and APD one more opportunity, hopefully their very last chance, to get their act together and get the job done on implementing the reforms. The very real risk is the parties will continue to flop around like fish out of water accomplishing very little, another year will pass, and the engrained APD culture of resistance to the reforms will continue unabated.
It as if APD and its management are once again attempting to run out the clock on another Mayor, this time the Keller Administration, knowing full well the municipal election is on November 2, 2021 and Keller could be out of office. The EFIT gives incumbent Mayor Tim Keller plausible deniability against the accusation that he is not taking action to implement all the DOJ reforms as he promised 4 years ago when he ran. Truth is Mayor Tim Keller for 3 years has allowed a sore to fester when it came to APD’s deliberate attempts to undermine the reform effort while at the same time trying to lay claim that he has done a great job with APD and all the reforms. Things have only gotten worse under Keller and his public relations is a sharp contrast to the truth of what is happening with APD.
The EFIT must be the very last chance for the city and APD to make the DOJ reforms to work. If APD management, the union and rank and file 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”, the Federal Court should say enough is enough and hold the city in contempt of court. If that happens, the Court should order the Federal Monitor to take over APD’s Internal Affairs Unit and the use of force investigations.
In the event that the EFIT fails, which is more likely than not, Federal Monitor James Ginger 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. Then and only then will full compliance with the reforms be achieved.