APD’s “Operational Compliance” Will Not Be Achieved Until New Generation Of APD Management And Police Officer Takes Over; Court Can Dismiss Case On Its Own

For over the last 6 years, the City of Albuquerque and the Albuquerque Police Department (APD) have been struggling under a Court Approved Settlement Agreement (CASA) to implement 271 reforms. The CASA was entered into after the Department Of Justice file suit alleging the APD had engaged in a pattern and course of conduct of excessive use of force and deadly force and a finding of a “culture of aggression” within APD.

On Friday, December 4, 2020 during an all-day status conference hearing on the 12th Compliance Audit Report of the APD reforms mandated by the CASA, 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).

STIPULATED ORDER APPROVED

On Friday, February 26, U.S. District Judge James Browning held a hearing and approved the Stipulated Order between the city and the DOJ to create the EFIT. According to the approved order, the city will hire a team of upwards 25 outside investigators and an Administrator. An EFIT investigator will accompany internal affairs detectives to all scenes where an APD officer uses force on a person that causes injury, hospitalization or death. The external investigators 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.

During the February 26 hearing, Paul Killebrew told the court the FISIT 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.”

COURT EXPLORES AUTHORITY TO DISMISS CASE

During the February 26 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:

JUDGE BROWING:

“All right. The other question I have is that you have probably seen some of the calls from people to vacate this order. They want me to just toss this out because it’s such a bad idea, the consent decree. Two questions. Probably answer them at the same time. One is: Do I have any power to do that once the consent decree, the settlement, was entered in this case? And then B, even if it’s something that some people wanted, what are the chances of this consent decree being tossed out by me or anybody else in this case?”

MR. KILLEBREW:

“Good question, Your Honor. I think on the first question, of whether you have the authority to terminate the consent decree sua sponte [on its own], 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. I will say I don’t believe those grounds are present, and I believe the arguments that we made at the outset of this litigation for why the consent decree is fair, reasonable, and adequate and not the product of collusion still stand. So I would say that the chances of the Court terminating the consent decree on that basis should be low and are low. The other opportunity that the Court will have to terminate this consent decree will be once the City has met the terms of the decree, which requires coming into compliance with its requirements, and sustaining that compliance for two years, at which point the parties may seek termination.”

CASA REFORM COMPLIANCE PLACED INTO CONTEXT

The DOJ Court Approved Settlement Agreement (CASA) was negotiated over a 6-month period after the DOJ released its investigation report finding that APD engaged in a “pattern and practice” of unconstitutional “use of force” and “deadly force.” It was on November 10, 2014 the Court Approved Settlement Agreement (CASA) was filed. The link to the full 106-page CASA containing 276 mandated reforms can be read here:

https://www.cabq.gov/mental-health-response-advisory-committee/documents/court-approved-settlement-agreement-final.pdf

The CASA was negotiated to be fully implemented over a 4-year period. It has now been over 6 full years. Under the CASA there are 3 compliance levels that must achieve a 95% compliance level and then maintained for a full 2 years before the case can be dismissed.

For the purposes of the Albuquerque Police Department (APD) monitoring process, “compliance” consists of three levels: primary, secondary, and operational compliance levels.

The 3 compliance levels can be explained as follows:

1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 3 of the compliance areas, and maintains compliance for 2 years, the case can be dismissed.

OPERATION COMPLIANCE DECLINES IN TWO AREAS

On November 2, 2020, the Federal Monitor filed his 12th Federal Monitor’s Report that covered the time period of February 1, 2020 to July 31, 2020.

In the 12th audit reporting period that ended on July 31, 2020 the Federal Monitor found the following compliance levels:

PRIMARY COMPLIANCE: 100% with no change from 11 th report. APD continued to make progress overall, having achieved primary compliance in 100% of the applicable paragraphs of the CASA. Primary Compliance relates mostly to development and implementation of acceptable policies conforming to national practices.

SECONDARY COMPLIANCE: 91%, with a loss of -2.2% from the 11th report. APD is in 91% Secondary Compliance as of this reporting period. Secondary Compliance means that effective follow-up mechanisms have been taken to ensure that APD personnel understand the requirements of promulgated policies, e.g., training, supervising, coaching, and implementing disciplinary processes to ensure APD personnel understand the policies as promulgated and are capable of implementing them in the field.

OPERATIONAL COMPLIANCE: 64%, with a loss of -3.0%. APD is in 64% Operational Compliance with the requirements of the CASA, which means that 64% of the time, field personnel either perform tasks as required by the CASA, or that, when they fail, supervisory personnel note and correct in-field behavior that is not compliant with the requirements of the CASA

SUSPENSION AND TERMINATION PROVISIONS OF THE CASA

The CASA contains the following suspension and termination provisions:

“Termination of the Agreement

342. The City will endeavor to reach full and effective compliance with this Agreement within four years of its Effective Date. The Parties agree to jointly ask the Court to terminate this Agreement after this date, provided that the City has been in full and effective compliance with this Agreement for two years. “Full and Effective Compliance” shall be defined to require sustained compliance with all material requirements of this Agreement or sustained and continuing improvement in constitutional policing, as demonstrated pursuant to the Agreement’s outcome measures.

343. If after six years from the Effective Date the Parties disagree whether the City has been in full and effective compliance for two years, either Party may seek to terminate this Agreement. In the case of termination sought by the City, prior to filing a motion to terminate, the City agrees to notify DOJ in writing when the City has determined that it is in full and effective compliance with this Agreement and that such compliance has been maintained for no less than two years.”

The CASA does have a provision that allows suspension of the monitoring. Specifically, Paragraph 302 of the CASA provides:

“302. Where the Parties agree, the Monitor shall refrain from conducting a compliance review of a requirement previously found by the Monitor to be in sustained compliance for at least two years pursuant to audits or reviews, or where outcome assessments or other information indicate that the outcome intended by the requirement has been achieved.”

REFORMS UNDER THE CASA

As of November, 2020, over 6 years has expired since the city entered into the CASA with the DOJ. From all appearances and practical purposes, and from review of the Federal Monitor’s reports, the City and APD have completed the following mandated reforms under the Court Approved Settlement Agreement:

1. After a full year of negotiations, new “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.
2. All sworn police officers have received crisis management intervention training.
3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.
4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.
5. 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 implementation of new use of force and deadly force policies have been completed.
6. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police having received training.
7. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.
8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
9. The Repeat Offenders Project, known as ROP, has been abolished.
10. Civilian Police Oversight Agency has been created, funded, fully staffed and a director hired.
11. The Community Policing Counsels (CPCs) have been created in all area commands and the CPCs meet monthly.
12. The Mental Health Advisory Committee has been implemented.
13. The CASA identified that APD was understaffed. The City and APD are in the process of spending $88 million dollars, over a four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and grow the department to 1,200 officers. As of January 1, 2020, APD has 949 full time police officers, up from 878 sworn police. The expansion thus far is attributed primarily to hiring from other departments and returning to work APD retirees.
14. In November, 2018 APD achieved 99.6% compliance with primary tasks, 75.4% secondary compliance and 59.5% operational compliance with APD making significant progress in overall compliance.
15. According to the Use of Force Report for the years 2017 and 2018, APD’s “use of force” and “deadly force” is down dramatically , which was one of the primary objectives of the CASA reforms.

COMMENTARY AND ANALYSIS

Operational Compliance under the settlement is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency. Operational Compliance is achieved when line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

After review of the 12 Independent Monitors Reports, the 276 CASA mandates, and the reforms implemented, the biggest failure is implementation and training on the new policy and enforcement by APD management to achieve “Operational Compliance”. This is where the “rubber hits the road.”

COUNTER CASA EFFECT PREVENTS OPERATIONAL COMPLIANCE

“Operational Compliance” will never be fully achieved until there is a 100% elimination of the “Counter CASA” effect as identified by the Federal Monitor.

In Federal Monitor’s 10th and 11th audit reports, 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”.

…“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.”

In the 11th audit report, the Federal Monitor made it clear that there are many within APD that are overtly resistant to reforms. The Monitor found evidence of a “counter-CASA effect” among some at the supervisory, mid-management, and command levels at APD. Notwithstanding, both Mayor Keller and CAO Nair have refused to take aggressive action and remove those in the chain of command that are resistant to police reforms.

APD sergeants and lieutenants, even though they are part of management with supervisory authority over sworn police officers, are not “at will” employees and they are allowed to join the police union. Including sergeants and lieutenants in the union bargaining unit creates a clear conflict within management and sends mixed messages to rank and file sworn police officers.

APD police sergeants and lieutenants are on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies. They are where the “rubber meets the road” when it comes to Operational Compliance.

The point that has been repeatedly made by the Federal Monitor is that “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. In other words, without the 100% support of the sergeants and lieutenants to the CASA mandated reforms, there will be little or no progress made with Operational Compliance.

Sergeants and lieutenants need to be made at will employees and removed from the police union bargaining unit in order to get a real buy in to management’s goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities. Until sergeants and lieutenants are removed from the union and made at will employees, do not expect the CASA reforms or “Operational Compliance” to be achieved any time soon.

OPERATIONAL COMPLIANCE MAY NEVER BE ACHIEVED

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.

With the implementation of the EFIT team, a 95% to 100% compliance with all the CASA primary, secondary and operational compliance goals should be achieved. But no one should expect that, especially the DOJ and when Assistant United State Attorney Paul Killebrew says in open court:

“APD has proven over and over again its agility to avoid the requirements of the CASA.”

“…[W]hat we have is a city that has failed to comply with that court order over and over and over again. … 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. ”

NEW LEADERSHIP SAME IS OLD LEADERSHIP

When Keller ran for Mayor In 2017, he promised to implement the DOJ reforms and changed bring a new approach to APD”s management. So much for promises. From the very day Tim Keller became Mayor, he has relied upon former, long term APD Management . Keller first selected former Rio Rancho Police Chief Michael Geier as “Interim Chief” of the Albuquerque Police Department. Chief Geier retired from APD after 20 years and has extensive knowledge of APD. Mayor Keller also appointed retired APD Roger Banez, and retired APD Harold Medina, and current Deputy Eric Perez as Deputy Chief’s and each have extensive years of service with APD.

On Monday, March 8, Mayor Keller announced Harold Medina as the new APD Chief of Police. Medina had been serving as interim APD Chief since Mayor Keller fired APD Chief Michael Geier. Over 3 years, Keller’s promised implementation of the DOJ reforms until they stalled so much that he fired his first Chief Michael Geier. It was APD’s excessive use of force and deadly force against the mentally ill that was at the center of the DOJ’s finding of a culture of aggression.

Chief Harold Medina has a nefarious past with the use of deadly force against two people suffering from psychotic episodes. The first was when Medina shot and killed a 14 year old child who was having a psychotic episode, went to a westside church for help and armed with a BB gun. Medina had been dispatched to the scene and when the child brandished the BB gun, Medina shot him dead. The second shooting happened years later when then Lieutenant Medina authorized the use of deadly force against a 26-year-old veteran suffering from service connected post traumatic stress disorder who held a gun to his head, with APD shooting and killing him. A jury found that the veteran was a danger only to himself and awarded a $10.5 million judgement against the city.

During his January 23 webinar interview, Interim Chief Harold Medina said he has the “hindsight” to take the department forward. He said “How can you change a culture if you had not lived and been a part of that culture?” With these words, Medina essentially admitted he was part of the “culture of aggression” that brought the DOJ here in the first place. Anyone who helped create, knew about or did not stop the “culture of aggression” has absolutely no business being Chief of Police. Chief Medina has also blamed the DOJ consent decree for APD’s inability to concentrate on crime.

Along with his appointment of Harold Medina as permanent APD Chief, Mayor Keller also appointed Sylvester Stanley as “Interim Superintendent of Police Reform” in addition to the position of Deputy Chief Administrative Officer (DCAO). In 1982, Sylvester Stanley began his career with the Bernalillo County Sheriff’s Department (BCSO) where he began his career as a patrolman. Over the years, he advanced through the ranks serving as a Detective, Sergeant, and Lieutenant retiring, in 2002, with the rank of Captain. Sylvester Stanley served as Police Chief for the Isleta Police Department from 2018 to 2021.

Stanley’s extensive law enforcement background and experience, although impressive as it is, is void of any work or dealing with federal consent decrees and void of any background in constitutional policing practices which are the center piece of the DOJ reforms. Two major shortcomings to the Stanly appointment is that he is “interim” meaning temporary and his background and experience is as traditional law enforcement as it gets. Lacking of experience with implementation of Federal Court Approved Settlement Agreements dealing with excessive use of force and deadly force cases is a cause of concern. Superintendent Stanley has also been given authority over disciplining police officers ostensibly for violations of the DOJ reforms. The police union has objected to Stanley having any authority to discipline asserting that the union contract gives that authority exclusively to the Chief.

APD Chief Harold Medina will not be reporting to Stanley nor Stanley to Medina, but both will be reporting to Chief Administrative Officer Sarita Nair who will likely be forced to resolve any disputes between the two. Medina and Stanley will essentially be acting like a “CASA Reform Tag Team” who will be reporting to political operative Chief Administrative Officer Sarita Nair.

COMMENTARY AND ANALYSIS

Given the 15 major accomplishment and reforms achieved, one conclusion that can be reached is the “spirit and intent of the” CASA has been accomplished. Sooner rather than later there must come a time and realization the failure to achieve Operational Compliance is a failure of APD’s management and is based on personality and attitudes of the sworn police who resist civilian oversight. Engrained attitudes and the culture of aggression found by the DOJ will never be changed until such time there is a complete turn over within APD and all of its personnel. The turnover will happen through retirements, police officers quitting, transfers to other departments or even terminations resulting in a new generation of APD personnel.

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 them accountable and hold the city in contempt of court and order the Department of Justice receiver to take over APD’s Internal Affairs Unit and the use of force investigations.

Another option is for the court to dismiss the case on its own and declare that the spirit and intent of the CASA have been achieved. The dismissal would effectively force the Mayor, APD management, the “Use of Force Review Board, the Civilian Police Oversight Agency, the Mental Health Advisory Committee and the Community Policing Counsels to finally do their jobs as envisioned. Sweeping management changes and personnel changes could be implemented. Once the case is dismissed, the city will be free to propose necessary changes to the Union contract, including the removal of sergeants and lieutenants from the union making them at will and authorize the Chief to terminate at will officers. With the dismissal of the case, it would make it clear that no one could point to the CASA as being the reason for lack of progress or the cause of the city’s high violent crime rates.

Sooner rather than later the case must be dismissed to allow APD to get back to the basics of public safety.

All documents related to APD’s settlement agreement can be downloaded and reviewed at this city web site link:

https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement

The documents include:
The Settlement Agreement between City and the DOJ
APD Progress Reports
Independent Monitor’s Reports
Compliance Reports
Use of Force Annual Reports
Use of Force Reports
Studies
Audits

This entry was posted in Opinions by . Bookmark the permalink.

About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.