On April 27, 2021, it was widely reported by local news media that the Albuquerque Police Officers Association (APOA) launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing police officers from doing their jobs and combating crime. The Police Union political ad campaign consisted 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 settlement.
JUNE 9 STATUS CONFERENCE
Federal District Court Judge James Browning scheduled a Status Conference for June 9 on the Court Appointed Monitor’s 13th IME report on the Court Approved Settlement Agreement (CASA) mandating APD reforms.
On May 28, the Department of Justice (DOJ) in accordance with its established practice in this case, filed “Notice Letters from the Court’s Amici And Stakeholders” established or recognized by the Court-Approved Settlement Agreement (CASA) . The letters set forth the issues and concerns the parties wish to address with the Court during the June 9, 2021 Public Hearing.
Seven ‘Notice Letters’ were filed with the court by the DOJ from:
1. CASA Stakeholder Mental Health Response Advisory Committee, (MHRAC),
2. Amicus McClendon Sub-Class
3. CASA Stakeholder Northwest Community Policing Council
4. NE Community Policing Council, Northeast Area Command
5. APD Forward Coalition
6. Civilian Police Oversight Agency (CPOA)
7. Amicus Community Coalition
AMICUS MCCLENDON SUB-CLASS
The case of McClendon v. City of Albuquerque is a class-action lawsuit filed on January 10, 1995 in the United States District Court for the District of New Mexico by detainees at the Bernalillo County Detention Center (BCDC) in Albuquerque. The city at the time operated the jail which has recently been torn down. The 1995 class-action lawsuit alleged that gross overcrowding and racial discrimination at the jail violated the constitutional rights of inmates. The class action sought injunctive and declaratory relief enjoining the operation of the jail in its present condition. On September 7, 1995, the parties entered into a settlement agreement, which the district court approved. The case remained pending for decades for purposes of enforcing the settlement.
https://www.clearinghouse.net/detail.php?id=196
The latin term “amicus curiae” or “amicus” is generally defined as an adviser, often voluntary, to a court of law in a particular case who are given permission by a court to file legal pleadings. The plaintiffs in the McClendon case were granted “Amicus” status to participate in the Department of Justice case brought against the City and APD for excessive use of force and deadly force and reforms.
On June 3, 2021, the Amicus Mcclendon Sub-class submitted to the Federal Court a second letter for consideration during the June 9 hearing. Permission was granted by the letters author to publish on this blog. The June 3, letter published here deletes addresses, references to court documents, case citations and adds caption edits in brackets [ ]. The editing was done to assist and clarify the letter for all none lawyers who read this blog. Following is the letter:
June 3, 2021
Honorable James O. Browning
United States District Court Pete V. Domenici United States Courthouse
[Address deleted]
Re: United States v. City of Albuquerque No. 1:14-cv-1025-JB-SMV
Dear Judge Browning:
We are writing to Your Honor on behalf of the Plaintiff-Intervenor subclass in McClendon, et al. v. City of Albuquerque, et al. Civ. No. 95-24 JAP/KBM, one of the amici in the above-captioned case, to urge the Court to promptly address the inappropriate activities of the Albuquerque Police Officers’ Association (APOA) that are undermining compliance with the Court’s orders.
After we submitted the McClendon amicus’ May 26, 2021 letter, we read the two emails that were sent to Your Honor by Mr. Jeramy Schmehl, an attorney who represents APD officers “in criminal and administrative investigations” and whose fees “are paid by the APOA through dues paid by member officers” Those emails (the first of which was sent to the Court on April 29th ex parte) attack the Court’s Independent Monitor and the entire implementation process, and fit within the context of the APOA’s campaign to sabotage implementation of the Court’s orders, so require a response.
The APOA argued in its December 19, 2014 Motion To Intervene (MTI) that “its participation will contribute to the equitable resolution of this conflict.” Moreover, after the APOA was granted party status, the APOA has concurred in several motions asking the Court to modify the CASA. The APOA also signed the amended versions of the CASA and Second Amended CASA . Those court-approved settlement agreements which the APOA signed contain, inter alia, these provisions: “The Parties commit to working together to implement this Agreement.” and “The Parties agree to defend the provisions of this Agreement.” It appears that the APOA is violating both of those provisions and is also working in concert with other persons to persuade elected City officials to attempt to abrogate the CASA that the APOA signed.
Sadly, it now seems clear that, contrary to their assertions to the Court when seeking intervention and to the representations made to the Court by its counsel, and in direct contravention of the requirements of [the settlement agreement] the APOA is indisputably not contributing to the equitable resolution of this case. Rather, the APOA is actively and aggressively undermining the efforts by the Court’s Independent Monitor, the United States, and the City of Albuquerque to implement the CASA. The APOA’s actions violate the APOA’s duty as a signatory to the current version of the CASA to make good faith efforts to implement the extant settlement agreement; an agreement which the APOA signed and also asked the Court to enter as a federal consent decree.
[THE APOA IS ACTIVELY CAMPAIGNING]
1. The APOA is actively campaigning to get City officials to abrogate the commitments embodied in the CASA. As the Court is likely aware, an April 26, 2021 story in the Albuquerque Journal regarding the APOA’s “Crime Matters More” campaign, stated the following:
The Albuquerque Police Officers’ Association has launched a campaign urging the public to tell city leaders that “crime matters more” and that “they want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight.”
The APOA’s campaign cost $70,000 and involves billboards around the city and testimonials on TV, radio and social media from former Albuquerque Police Department officers “explaining how hard it is to just succeed,” said Shaun Willoughby, the union’s president. The push includes providing an email template for people to tell city leaders they believe in police reform and think APD has made progress but they 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,” the template states.
Much of Willoughby’s ire seemed directed at the city attorneys – “you don’t need enemies when you have friends like the city attorney” – who he said aren’t supporting officers at the federal court hearings held periodically throughout the year. “We believe that our community deserves better from this police department,” he said. “We believe our community deserves better from this consent decree process.”
https://www.abqjournal.com/2384284/apd-union-launches-campaign-against-dojoversight.html
In addition, the APOA’s President, Mr. Willoughby, stated on April 26, 2021 to KOB-TV, “You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both; and we think it’s time that our city leaders hear from the actual community that crime matters more because it does.”
[APOA ALSO APPEARS TO HAVE STOPPED PARTICIPATING IN GOOD FAITH]
2. The APOA also appears to have stopped participating in good faith in some of the processes designed to bring about compliance with the CASA. When attending the May 26th pre-hearing meeting with the parties that Judge Brack directed the parties and the amici to conduct prior to the court hearings during which the Independent Monitor’s reports are discussed with the Court, it was learned that the APOA is no longer participating in the process established by Judge Brack.
It is our impression that the APOA is also not participating meaningfully in the regularly scheduled meetings that the other parties have been holding for years with the Court’s Independent Monitor to attempt to improve compliance. Those failures to “work together to implement” the CASA impede compliance and should be remedied.
In Clearone Communs., Inc. v. Chiang, … the court held, “In civil contempt proceedings, disobedience of the order need not be willful. Rather, “[a] district court is justified in adjudging a person to be in civil contempt for failure to be reasonably diligent and energetic in attempting to accomplish what was ordered.”
[In a 1998] case involving a union that attempted to thwart the purpose of a consent decree, the court held:
Consent decrees are subject to continuing supervision and enforcement by the Court. ” ‘[A] court has an affirmative duty to protect the integrity of its decree. This duty arises where the performance of one party threatens to frustrate the purpose of the decree. … it is not necessary to find that the defendants willfully violated the consent decree in order to hold them in contempt. “
… .
[In the case of In EEOC v. Local 580], the goal of the consent decree was to increase minority and female employment in the Times’s bargaining unit and in the Casual labor force. The practices of the defendants have had an adverse effect on this goal, and the Court has the power to take any steps necessary to counteract and compensate for the adverse effect on minority and female hiring within the four corners of the consent decree. … .
It is evident that the APOA and its lawyers are not just failing to be reasonably diligent in attempting to accomplish what they agreed must be done and what they asked the court to adopt as an order of the Court, but APOA’s actions are indisputably having an adverse effect on the central goal of the litigation; eliminating the endemic pattern and practice of using force unnecessarily and excessively and eliminating the culture of aggression that pervades the APD.
Moreover, the Court does not need to hold the APOA in contempt in order to sanction actions by APOA officials and representatives that undermine implementation of the CASA. Citing Hutto v. Finney, … (1978), the Supreme Court has held that a federal court may sanction a party without necessarily holding them in contempt, “when a party ‘shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. … The imposition of sanctions in this instance transcends a court’s equitable power concerning relations between the parties and reaches a court’s inherent power to police itself, thus . . . “vindicating judicial authority without resort to the more drastic sanctions available for contempt of court” …
[SABOTAGING IMPLEMENTATION OF THE CONSENT DECREE]
Accordingly, we urge the Court to both vindicate the authority and integrity of the federal judiciary and to protect the CASA and the people of Albuquerque who are the CASA’s beneficiaries, by sanctioning the APOA for its actions. Whether the Court convenes a show cause hearing to determine if the APOA’s actions constitute contempt of court, or imposes other consequences on the APOA for sabotaging implementation of the consent decree, we respectfully request that the Court take prompt action to “counteract and compensate for” the APOA’s actions that threaten to thwart the purpose of the orders that the APOA asked the Court to enter in this matter.
Respectfully submitted,
Peter Cubra
Counsel for McClendon Amici
COMMENTARY AND ANALYSIS
There is no getting around it. The APOA police union and its President Shaun Willoughby as well as their attorneys have a lot of explaining to do, not only to the Court but to the friends of the court and the general public.
No doubt the police union believes that their $70,000 ad campaign is within their First Amendment right of free speech. That would be the case if the union were not a party to the federal lawsuit. Once the Police Union became a party to the Federal lawsuit, it agreed to subject itself to the jurisdiction of the Federal Court and all the rules of the Federal Court. To a limited degree, all parties to any Federal Court action lose rights of free speech in order to protect the proceedings and the courts obligation to be fair and impartial and not be subject to political pressures.
With the $70,000 ad campaign, the sanctions being sought by the McClendon Amici for sabotaging implementation of the consent decree are totally appropriate and needed. As is a “Motion For An Order To Show Cause” to be filed against the police union for it to show cause why it should not be held in contempt of court for intentional interference with the Court Approved Settlement Agreement (CASA) and its attempts to sabotage it.
APD police union officials need to be placed under oath so that full disclosure can be made to the public on any number of issues involving the ad campaign including:
Who reviewed and approved the $70,000 ad campaign as to content?
Were the police union attorneys notified of the ad campaign in advance or did they approve it?
Was the ad campaign approved by the police union membership?
What was the source of revenue of the $70,000 and did it come from union membership, union dues or private donors?
Did the Union leadership or members solicit private donations from the public on city time or use city resources to do so?
Did the $70,000 come from a national police organization or political party or those business who utilize Chief’s Overtime?
Disclose to the Court and public the full list of donors for the ad campaign.
Disclose the full list of those contacted directly by the union to solicit letters of support.
Listing of all expenditures made for the ad campaign, including production time, advertisement air time on the TV News stations and paid for by the union.
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 disparaging the CASA reforms.
If not, the Federal Court should act on its own during the June 9 status conference hearing and fully demand an explanation from the police union.
Two sanctions that are in order are:
Remove APD Sergeants and Lieutenants from the bargaining unit.
Dismiss the APOA Union as a Third Party to the federal lawsuit.
Otherwise, the disruptive nonsense of the union will continue in defiance of the Federal Court Approved Settlement Agreement.
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