APD Police Union Spends $70,000 To Discredit Federal Court Order After Impeding And Resisting APD Reforms For 6 Years; Tactic Likely Grounds For Contempt Of Court By A Party For Interfering With Court Order

The Albuquerque Police Officers Association (APOA) has launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing officers from doing their jobs and combating crime. The Police Union leaders acknowledge that the city is bound by Federal Court Order but the union claims city leaders still have the ability, within that agreement, to push back on policies and procedures that they do not believe work for Albuquerque.

POLITICAL PUBLIC RELATONS CAMPAIGN

The Police Union political ad campaign consists of billboards around the city and testimonials on TV, radio and social media from former Albuquerque Police Department officers. The public relations campaign is urging the public to tell city leaders that crime matters more than the Police reforms mandated by the settlememnt.

The public relations campaign includes providing an email template for people to use and contact civic leaders. The template says APD has made progress with the reforms and says we are tired of living in a city filled with murder, theft and violence. … I’m urging you to fight for this city, stand up to the DOJ, and help us save the city we love, before it’s too late. ”

APOA Police Union President Shaun Willoughby described the need for the public relations campaign this way:

“You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both. We think it’s time that our city leaders hear from the public that crime matters more because it does. … They want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight. … This conversation of reform needs to come back to common sense. … Right now, the City of Albuquerque capitulates to everything the DOJ wants and that might not necessarily be the right direction for the City of Albuquerque. … You don’t need enemies when you have friends like the city attorney. … We believe that our community deserves better from this police department. … We believe our community deserves better from this consent decree process.

“[We are asking] for the city of Albuquerque to stand up and support Albuquerque police officers and support common sense reforms that allow our officers to succeed. … . We’re talking about the bureaucracy of police officers being taken off the street because somebody that was not used force on said ‘ow”. And how that impacts this community, our ability to respond to the community and this community’s ability to control crime. Your Albuquerque police officers are terrified that they will lose their job for simply doing their job and it’s not fair.”

The APOA is also using its FACEBOOK page to get the word out with one post saying:

“Are you tired of the growing crime problems facing the city of Albuquerque? Are you tired of break-ins, stolen cars, vandalism, theft and murder being part of everyday living in our community? Then do something! If you don’t speak up and get involved right now, things will get worse. Tell your City leaders that you care more about fighting crime then than wasting millions on endless Department of Justice oversight. Share and make your voices heard because crime matters more.”

This is not the first time the police union has attempted to undercut the reform process. In a February 11 Target 7 news 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 is blaming the Court Approved Settlement Agreement (CASA) and its mandated reforms for the city’s high crime rates in Albuquerque and it’s a false narrative.

MAYOR KELLER AND CHIEF MEDINA RESPOND TO UNION

When Mayor Tim Keller and APD Chief Harold Medina were asked about the campaign they said they don’t understand the unions goal because the city is under a Court Approved Settlement Agreement (Casa) that mandates the police reforms whether anyone likes it or not.

APD Chief Harold Medina had this to say:

“This past weekend, I had a couple of retired officers call me, and they talked to me about it how the perception on social media is that myself, the mayor or somebody could say that we don’t want to cooperate or work with DOJ anymore, and that we want our police department back, and that we’re going to move forward, as we were in the past. That’s not possible. Whether it’s me the chief, or somebody else is the chief or this mayor or another administration, they better understand they have to contend with DOJ and they can’t terminate this. … It’s not a contract. It’s a court order.”

Links to news source and quotes are here:

https://www.kob.com/new-mexico-news/albuquerque-police-union-starts-campaign-to-push-back-against-doj-requirements/6087348/?cat=500

https://www.abqjournal.com/2384284/apd-union-launches-campaign-against-doj-oversight.html

COURT APPROVED SETTLEMENT AGREEMENT

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 2014 investigation of APD found that APD officers engaged in a pattern and practice of using excessive force and deadly force and violating citizens’ constitutional rights and that a “culture of aggression” existed within the department.

You can read the entire report here.

https://www.justice.gov/sites/default/files/crt/legacy/2014/04/10/apd_findings_4-10-14.pdf

On November 10, 2014, the DOJ Court Approved Settlement Agreement (CASA) was entered into after it was negotiated over a 6-month period. The 106-page negotiated CASA agreement contains 271 mandated reforms. Under the CASA, the assigned Federal Judge is given the power to enforce terms of the agreement and issue orders for compliance and issue sanctions for noncompliance and has contempt of court powers. .

Included in the 271 major reforms under the settlement are:

1. 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.
2. The CASA mandates the teaching of “constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with the mentally ill.
3. The City agreed that APD would overhaul and rewrite all of its “use of force policies” and “deadly force” policies, recruitment procedures, training, internal affairs procedures and implement field supervision of officers.
4. 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.
5. 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.
6. Under the CASA, 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.
7. The CASA broadens and removes obstacles to the types of civilian complaints Internal Affairs and the civilian oversight agency can review.
8. 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.
9. Under the agreement, officers who point their firearms at a person, but don’t fire, must fill out a use of force report that will be reviewed by field supervisors. That review is separate from a city civilian police oversight agency that will be independent of the department and will review police use of force incidents as well as civilian complaints.
10. 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.
11. APD agreed to revise and update its policies on the mandatory use of lapel cameras by all police officers.
12. Under the CASA, the City agreed to abolish the Repeat Offenders Project, known as ROP, within three months of signing the agreement for the reason that members of the unit were involved in a number of the controversial shootings investigated by the DOJ.
13. The agreement provides that if the city fails to implement the reforms or shows bad faith in the implementation of the CASA, the DOJ has the option of filing a federal lawsuit against the city over the city’s unconstitutional policing practices found by the DOJ investigation.
14. 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.
15. A major change in the CASA bans APD officers from firing their weapons at moving vehicles in all but life-threatening situations.
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.

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

OPERATIONAL COMPLIANCE LEVELS

The CASA was negotiated to be fully implemented over a four-year period. It has now been over 6 years. Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 3 compliance areas, and maintains compliance for 2 years, the case can be dismissed.

For the purposes of the APD monitoring process, “compliance” consists of three parts: primary, secondary, and operational compliance levels.

The 3 compliance levels in the settlement are:

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 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 (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.

In the 12th Federal Monitors Report, the most recent, the Independent Monitor found the city at 100% primary compliance for the creation of policies; 91% secondary compliance for training of officers; and 64% operational compliance with police officers and supervisors acting according to procedures and being corrected when they don’t.

It was on Friday, October 6, 2020, that Court appointed Federal Monitor Ginger told the federal court:

“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.”

During the December 4, 2020 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, 2021 hearing to approve a stipulated order, Paul Killebrew told the court that the order was necessary because after 6 years APD is still not holding officers accountable for using force that is out of policy. Killebrew told the Federal Judge:

“…[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.”

https://www.abqjournal.com/2363867/judge-signs-off-on-team-of-outside-investigators-to-help-apd.html

POLICE UNION PARTY TO LAWSUITE OPPOSES THE REFORMS

Soon after the entry of the CASA on November 10, 2014, the police union intervened in the lawsuit and became a third party to the case to advocate union interest in city policy. The police union has been at the negotiating table for 6 years over the use of force and deadly force policies and has sat in the court room during all the hearings. It was the police union that was a major contributing cause for a full one-year delay in writing the new policies.

It was on September 10, 2018, at a status telephone conference call held with the Federal Judge assigned the case that Federal Monitor Dr. James Ginger first told the federal judge that a group of “high-ranking APD officers” within the department were trying to thwart reform efforts.

The Federal Monitor revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants. Because sergeants and lieutenants are part of the police bargaining unit they remained in their positions and could not be removed by the APD Chief. Federal Monitor Ginger referred to the group as the “counter-CASA effect.” Ginger described the group’s attitude as “certainly ambivalent” to the reform effort and the CASA. According to the transcript of the proceeding, Dr. Ginger told the Judge:

“The ones I’m speaking of are in critical areas and that ambivalence, alone, will give rise to exactly the sort of issues that we’ve seen in the past at the training academy. … So while it’s not overt, you know, there’s nobody sabotaging computer files or that sort of thing, it’s a sort of a low-level processing, but nonetheless, it has an effect. … It’s a small group, but it’s a widespread collection of sworn personnel at sergeant’s and lieutenant’s levels with civil service protection that appear to be, based on my knowledge and experience, not completely committed to this process … It is something that is deep-seated and it’s a little harder to find a quick fix or solution to it, but I think, in the long term, by having this foundation with new leadership and a new direction from the top down, we should be able to get through this and survive it.”

The entire 53-page transcript of the conference call can be read here:

https://drive.google.com/file/d/1GzUumHhiD3Mw2_dLg_czXml_T6-3QI2w/view

The 10th Federal Monitor’s report provided specific examples where APD, after 4 years of implementing the reforms, are still resisting the reform effort.

“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; and

• Spin up of “new” FRB processes will require persistent and candid review, assessment, oversight and support at the field level. “

On November 2, 2020, the Federal Court Appointed Monitor said for at least the 4th time in his reports that the “Counter Casa” effect was interfering with APD accomplishing the implementing the CASA reforms. According to the 12th report:

“[The federal monitor] identified strong under currents of 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 often found in its reviews of management and oversight practices, a near myopathy at APD when it comes to assessing actions in the field against the requirements of APD policy and the CASA. Supervisors and command level personnel have a deleterious tendency to ignore the requirements of policy and training, and at times to even support processes to hide or circumvent internal systems designed to ensure compliance to established policy.

“APD’s compliance efforts have exhibited serious shortfalls during the … reporting period. These range from critical shortfalls in management and oversight … significant and deleterious failures relating to oversight and discipline; and executive-level failures regarding oversight, command and control, discipline, supervision, and training.

COMMENTARY AND ANALYSIS

Peter Simonson, executive director of the American Civil Liberties Union of New Mexico and a member of the advocacy group for police reforms “APD Forward” had this to say about the police unions political ad campaign:

“The only unfortunate thing is that so far the department has failed to demonstrate that it can hold officers accountable when they violate internal policies and the union bears a portion of the blame for that… . They have found ways to undermine various measures that are required under the consent decree and they have found ways to undermine accountability itself. This is just another example of that.”

It is downright disgusting and disingenuous for the Police Union to say that the union is not trying to get the city to end the reform process, especially 7 months before the November 2, 2021 municipal election where Mayor Tim Keller is seeking a second term. Four years ago, the police union endorsed Keller and the union is now saying it does not know who it will be endorsing this year. WINK, WINK, many of the union members and police union advocates are supporting Sheriff Manny Gonzalez for Mayor with a few working on his campaign. There is little doubt that once again APD and the union are 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.

It’s more likely than not the police union’s $70,000 public relations campaign will fail, as it should. A major mistake the union has now made is that as a party to the lawsuit it should be taking its grievances to the Federal Court, and not the “court of public opinion”. Both the union attorneys are more than capable of filing pleadings in support or opposition of the CASA, present evidence under oath to the Judge and make argument in a court of law as to how the CASA reforms should be changed. With their $70,000 ad campaign, the police union may have bought a Contempt Proceeding for interference with a court order in a case that they are a party. No one knows if the Union attorneys had anything to do with the ad campaign or if they approved of it, especially with the Union spending $70,000 to disparage a Federal Court order.

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 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 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.

APD police sergeants and lieutenants, who are management but allowed to be part of the police union, 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 police reforms.

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 police reforms.

Only until APD becomes in complete compliance will APD be able to fight crime without violating people’s civil rights and thereby allow the dismissal of the DOJ consent decree. One thing for certain is that only APD management, the police union and all APD police officers can make the consent decree actually work and have the court dismiss it sooner rather than later.

The City of Albuquerque and the Department of Justice need to file a Motion for Contempt of Court, either individually or jointly, and seek sanctions against the APOA Union for intentional interference with the Court Approved Settlement Order with its political ad campaign and the CASA reforms. Two sanctions sought should be the removal of all APD Sergeants and Lieutenants from the bargaining unit and dismissing the APOA Union as a Third Party to the federal lawsuit. Otherwise, the disruptive nonsense of the union will continue.

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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.