On May 25, African American George Floyd died when Minneapolis Police Officer Derek Chauvin, who is white, was taking Floyd into custody and pressed his knee against Floyd’s neck for upwards of 9 minutes. Former Minneapolis Police Officer Derek Chauvin is currently on trial for the murder of African American George Floyd. At issue was Chauvin’s use of deadly force used to subdue George Floyd to arrest him on charges of passing a counterfeit $20 bill to purchase a pack of cigarettes.
More than a few bystander’s cell phone video caught the incident while Floyd struggled as he said at least 14 times “I can’t breathe, I can’t breathe” and crying out for his mother, until he succumbed to death. The police body cam video presented in court of George Floyd being pulled from the police vehicle by 3 officers and Chauvin placing his knee on Floyd’s neck was as compelling and disturbing as it gets.
Floyd’s death sparked violent protests in the city Minneapolis and beyond. The death led to the Black Lives movement demanding police reforms and the “defund the police” movement. The Floyd family filed a federal civil rights lawsuit in July of last year against the city, Derek Chauvin and the 3 other fired police officers charged in his death. The federal lawsuit alleged in part that the Minneapolis Police violated Floyd’s rights when they restrained him and that the city allowed a culture of excessive force and racism to flourish in its police force. On Friday, March 12, the city of Minneapolis agreed to pay $27 million to settle the civil lawsuit filed by the George Floyd family over his death in police custody.
JOURNAL GUEST COLUMN REVISTED
On Sunday, March 28, a guest opinion column written by a retired APD Area Commander was published by the Albuquerque Journal. The opinion column initially takes issue with the appointment by Mayor Keller of APD Chief Harold Medina and called it a “charade”.
The link to the full Albuquerque Journal guest column is here:
The opinions expressed by the former APD Area Commander regarding the Federal Court Approved Settlement Agreement (CASA) were extremely revealing regarding the use of force and deadly force to make an arrest and for that reason merit review. The first paragraph is deleted and deals with appointment of current APD Chief. The third paragraph is deleted and it relates to the Chief selection process. The remaining paragraphs are as follows:
“… [DELETED FIRST PARAGRAPH]…
“Crime is up and directly related to the settlement agreement, an absurd use-of-force policy and the required investigations. These decrees can last for a decade or more. Seattle and Portland have been under one since 2012, Detroit since 2003. Crime escalates wherever they are implemented. The monitor has every financial reason to prolong this decree while he drains our coffers.
… [DELETED THIRD PARAGRAPH]…
I believe I can speak for an overwhelming number of retired/former officers when I say this entire mess, settlement agreement/dual leadership is an unmitigated disaster that was preventable. We arrived here by the political inactions and lack of courage by our mayors and councils. They should have been the oversight when the chain of command faltered.
I spent nearly 22 of my 25-year career working the streets in a patrol car through the rank/position of an area commander. I was never aware of institutional racism nor recall what could be considered excessive force. Not everyone we arrested wanted to go without a fight. We were attacked with gunfire, knives, bludgeons and the list goes on. Yes, some had to be slammed up against the hood of a car, a wall or the ground to gain compliance. Some had to be gassed, tazed, struck with a baton and, yes, some had to be shot. For doing our job, a job most wouldn’t or couldn’t do, our politically correct politicians shoved us under the settlement agreement bus.
A once proud, nationally recognized, effective APD is in total shambles, and life for the officers and crime is only going to get worse. But alas, the new dual leadership at APD will “right” the sinking ship.
COMMENTARY AND ANALYSIS
There are two major false claims in the Journal guest column that need to be addressed. Those claims are:
FIRST FALSE CLAIM:
“Crime is up and directly related to the settlement agreement, an absurd use-of-force policy and the required investigations’
This is a false claim and reflects a level of ignorance of just how consent decrees work.
An academic report found an uptick in crime among the 31 cities that came under federal oversight between 1994 and 2016. The study also found those increases were temporary and diminished into statistical insignificance over time. Stephen Rushin, the study’s co-author and a professor at the Loyola University Chicago School of Law had this to say:
“To say that … [consent decrees] don’t work, at minimum is misleading. … I don’t think anyone, even folks who have spent their life doing this, would think it’s perfect. But I think to say that it just doesn’t work and everyone knows it, that’s not true. … It would be fair to say there’s some empirical support for the claim that consent decree cities have seen maybe an uptick in crime relative to unaffected cities. … But, again it’s more complicated because our research … found that after a few years, that relationship goes away.”
According to Professor Rushin, other experts said that crime rates aren’t the only factor to consider when weighing the potential costs and benefits of consent decrees. For instance, a widely cited study from the University of Texas-Dallas found that cities operating under such agreements saw a decrease in civil rights lawsuits against police.
The link to the University of Texas-Dallas study is here:
Professor Rushin went on to say:
“These [crime] numbers are not destiny and there are good examples of cities as big as Chicago going through these kinds of very disruptive processes and coming out the end a much safer and seemingly more constitutional police department”.
One example is Los Angeles, which operated under a consent decree between 2000 and 2013. A 2009 report from the Harvard Kennedy School found that crime did rise in the first couple years of the consent decree, but at a pace no faster than it did across all of California.
SECOND FALSE CLAIM :
“… [P]olitically correct politicians shoved us [meaning APD] under the settlement agreement bus” is precisely the false narrative that is the biggest reason that implementation of the reforms by APD are failing.”
The former APD Commander retired years before the Department of Justice (DOJ) Court Approved Settlement Agreement was negotiated. He was part of APD management before the DOJ came to Albuquerque.
In his letter, the retired commander makes the startling admission that sounds like it comes out of a Chicago APD television script:
“… some [being arrested] had to be slammed up against the hood of a car, a wall or the ground to gain compliance. Some had to be gassed, tazed, struck with a baton and, yes, some had to be shot. “
Without lapel camera footage or cell phone footage, or other witness testimony, only an arresting officer knows for sure if the use of force or deadly force is in fact justified and if a suspect was resisting a lawful arrest.
Only police officers themselves over the years before the consent decree know for sure if they did not help create, did not participate nor did not stop the “culture of aggression” within APD that took many years to become reality long before the DOJ investigation.
WHAT BROUGHT THE DEPARTMENT OF JUSTICE TO THE CITY
On April 10, 2014, the United States Department of Justice (DOJ), Civil Rights Division, submitted a scathing 46-page investigation report on an 18-month civil rights investigation of the Albuquerque Police Department (APD).
The investigation was conducted jointly by the DOJ’s Washington Office Civil Rights Division and the United States Attorney’s Office for the District of New Mexico.
You can read the entire report here.
The DOJ investigation included a comprehensive review of APD’s operations and the City’s oversight systems of APD. The DOJ investigation “determined that structural and systemic deficiencies — including insufficient oversight, inadequate training, and ineffective policies — contribute to the use of unreasonable force.”
Based on the investigation and the review of excessive use of force and deadly force cases, the DOJ found “reasonable cause to believe that APD engage[d] in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment … . and [the] investigation included a comprehensive review of APD’s operations and the City’s oversight systems.”
Federal civil rights laws make it unlawful for government entities, such as the City of Albuquerque and APD, to engage in a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution and laws of the United States.
The investigative report found a pattern or practice of use of “deadly force” or “excessive use of force” in 4 major areas:
1. The DOJ reviewed all fatal shootings by officers between 2009 and 2012 and found that officers were not justified under federal law in using deadly force in the majority of those incidents. Albuquerque police officers too often used deadly force in an unconstitutional manner in their use of firearms. Officers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force.
2. Albuquerque police officers often used less lethal force in an unconstitutional manner, often used unreasonable physical force without regard for the subject’s safety or the level of threat encountered. The investigation found APD Officers frequently used take-down procedures in ways that unnecessarily increased the harm to the person. Finally, APD officers escalated situations in which force could have been avoided had they instead used de-escalation measures.
3. A significant number of the use of force cases reviewed involved persons suffering from acute mental illness and who were in crisis. The investigation found APD’s policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved.
4. The investigation found the use of excessive force by APD officers was not isolated or sporadic. The pattern or practice of excessive force stemmed from systemic deficiencies in oversight, training, and policy. Chief among these deficiencies was the department’s failure to implement an objective and rigorous internal accountability system. Force incidents were not properly investigated, documented, or addressed with corrective measures by the command staff.
What differentiates the DOJ’s investigation of APD from the other federal investigations of police departments and consent decrees is that the other consent decrees involve in one form or another the finding of “racial profiling” and use of excessive force or deadly force against minorities. The DOJ’s finding of a “culture of aggression” within APD dealt with APD’s interactions and responses to suspects that were mentally ill and that were having psychotic episodes.
The CASA and all 271 mandated reforms was necessitated because of APD’s actions and inactions from the Chief, APD management, the command staff all the way down to patrol officers. The April 10, 2014, DOJ investigation report reviewed all fatal shootings by APD officers between 2009 and 2012. The Department of Justice found excessive use of force and deadly force that was engrained into APD to the point that a “culture of aggression” existed.
CITY’S CONSENT DECREE UNIQUELY DIFFERENT FROM ALL OTHERS
What happened in the George Floyd case has happened in Albuquerque more than once, but it involved APD’s interaction with the mentally ill.
There are 18 consent decrees in the United States, all but one deal with racial profiling or systemic racism in one form or another. APD’s consent decree is significantly different. APD’s consent decree was brought about primarily because of APD’s inability to interact and deal with the mentally ill and those in crisis and as APD was attempting to take into custody for a suspected crime.
The 3 best examples are:
The 2010 shooting and killing of Kenneth Ellis, III, an Iraq War Veteran suffering post traumatic stress disorder and who had committed no crime, yet then Lt. Medina authorized the use of deadly force. The Ellis shooting resulted in $10.3 million judgement against the city.
The 2011 shooting and killing by APD of mentally ill Christopher Torres in his backyard by APD detectives dressed in plain clothes confusing Torrez. The Torrez shooting resulted in over a $6 million judgement against the city.
The 2014 killing of homeless camper and mentally ill James Boyd who was shot and killed by SWAT in the Sandia Foothills after APD attempted to arrest him for illegal camping. The Boyd killing resulted in a $5 million judgment against the city.
All 3 shootings were preventable, a clear violation of constitutional rights and wound up costing over $21 million in judgements.
APD has been struggling for over 6 years with trying to implement the DOJ consent decree reforms. After six years and millions spent, APD still has a long way to go to be compliant under the settlement before the case can be dismissed. The reforms were to be fully implemented in 4 years, and after 2 years of compliance in 3 areas determined to be 95% , the case was to be dismissed. APD management, the police union and rank and file have essentially done whatever they could do, and at different times, to interfere with the reform efforts.
The biggest failure made clear in Federal Court Monitor’s 12th report filed on November 2, 2020, relates to “Operational Compliance”. Operational Compliance is defined as “managements adherence and enforcement to APD policies in the day-to-day operation of APD” .
Operational compliance is where line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and upper command staff. In other words, APD “owns” and enforces its own policies and without expecting the Federal Monitor to do it for them.
DERELICTION OF DUTY BY APD, NOT POLITICIANS THROWING IT UNDER BUS
The problem always has been and continues to be that APD management, the police union and its membership have not fully embraced the reforms. In fact, all three have resisted them from time to time, at different times, as has been repeatedly documented by the federal monitor in at least 4 reports over the last 3 years.
The argument made by the retired APD Area Commander that “this entire mess, settlement agreement/dual leadership is an unmitigated disaster that was preventable. We arrived here by the political inactions and lack of courage by our mayors and councils. They should have been the oversight when the chain of command faltered” is nothing more than a pathetic attempt to undercut and discredit the need for the reforms and deflect the blame where it belongs: APD management, the union and rank and file police.
The settlement agreement was indeed preventable had APD in fact followed constitutional policing practices in the first place. It had nothing to do with “politically correct politicians” throwing APD under the bus. It was APD that brought the DOJ here in the first place and mandated the Federal Court to come down on it.
Simply put, if a police officer does not want to do their job and not follow constitutional policing practices as mandated by the consent decree, they are part of the problem and need to leave APD or find another line of work. Same goes for anyone currently within APD management, such as Chief Harold Medina, who helped create, contributed or who did not stop the “culture of aggression” and who have resisted the reforms.