On Sunday October 17, the Albuquerque Journal published its endorsement of Mayor Tim Keller for a second term over Sheriff Manny Gonzales and radio talk show host Eddy Aragon . The link to read the full endorsement is here:
The Journal endorsement of Keller was predicted by city hall watchers and political analysts. The endorsement reads in part:
“The Journal Editorial Board endorses Tim Keller for mayor as he is the most qualified candidate for the job. … The reality for Albuquerque voters is their choice of candidates consists of a radio talk show host with little to no management experience, a sheriff who talks tough about protecting the public but who’s displayed a complete disregard for the public’s right to know and Keller, the incumbent, who steered the city through the pandemic and has started some initiatives to fight crime and homelessness that have promise.”
What is revealing is that in no way can the Journal endorsement be considered unequivocal. It did not say that Keller has done a brilliant or fantastic job as Mayor. Four years ago, there were 8 candidates running for Mayor with more than 3 qualified to be mayor. Saying that Keller is the “best of the field” is a cause for snickering when only 3 are running. Saying Keller is the most qualified of the 3 is telling voters we do not have much of a choice.
At the end of the endorsement, the Journal editors make an appeal that borders on begging Mayor Keller to do better if elected to another years by saying:
“… we accompany our endorsement with an appeal that, if elected, Keller get the Gateway Center going while adopting a more aggressive approach to tackling the homeless issue, redeploy resources to cut 911 response times (so our senior citizens don’t have to play Dirty Harry) and follow through on recent promises to support legislative changes that would keep more repeat violent suspects in custody prior to trial. We also urge him to do his homework and due diligence on grand ideas like the stadium before asking for voter support. That’s quite a to-do list. Keller will need to hit the ground running to tackle these and other pressing issues to move Albuquerque toward a brighter future.”
FACT CHECKING THE ENDORSEMENT
There were a few misstatements and conclusions in the editorial containing false content and false statements made by Mayor Keller. Following are those editorial comments with fact checking analysis and commentary.
JOURNAL EDITORIAL CONTENT
“Keller inherited a tough situation after the U.S. Department of Justice hammered the Albuquerque Police Department in 2014 for a “pattern or practice of use of excessive force, including deadly force.”
COMMENTARY AND ANALYSIS
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). You can read the entire report here.
It was not just a “pattern or practice of use of excessive force, including deadly force” that the Department of Justice (DOJ) investigation found. It was a “culture of aggression” that had gone on in the department for many years, if not decades, engrained in the department, costing the city millions to settle police misconduct cases and use of deadly force cases. APD’s consent decree is totally different from all other consent decrees in the country.
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 in the country 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 severe psychotic episodes.
A significant number of the cases reviewed by the DOJ involved persons suffering from acute mental illness and who were in crisis. A few of those cases resulted in judgments and settlements in the millions of dollars. The investigation found APD’s policies, training, and supervision did not ensure that officers encountering people with mental illness were respected and police did not act in a manner that was safe for all involved.
JOURNAL EDITORIAL CONTENT
“… Keller told the Journal Editorial Board court-appointed independent monitor Dr. James Ginger has gone well beyond oversight and is “straight-up dictating what’s up at APD.” It’s hard to argue otherwise. Ginger has become the weekend guest who never leaves.”
COMMENTARY AND ANALYSIS
This statement by Mayor Keller is simply false. The only people with authority to “straight-up dictate what’s up at APD”is Mayor Keller, APD Chief Harold Medina and APD’s command staff. Federal court appointed Monitor Ginger has no such authority.
Under the terms and conditions of the settlement, Federal Court appointed monitor James Ginger and his monitoring team have absolutely no management, authority or control over APD, its resources nor its personnel. The Federal Monitor has no authority under the settlement to dictate nor order APD to do anything. The only thing the federal monitor can do is “audit” APD for compliance and report findings to the Federal Judge.
The CASA is a 112-page, federal court approved agreement with 344 paragraphs containing 271 mandated reforms. A link to the CASA is here:
Review of the monitors authority under the settlement merits review. It is paragraphs 294, 295, 296, 297 and 298 on pages 85, 86, 87, 88 of the CASA settlement that outlines with great specification the limited authority the monitor has over APD as well specifically outlining the duties and responsibilities of the monitor. Following are the paragraphs:
“A. Independent Monitor
294. The Parties will jointly select an Independent Monitor (“Monitor”) who will assess and report whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in high-level, quality service; officer safety and accountability; effective, constitutional policing; and increased community trust of APD.
295. The Monitor shall only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor shall not, and is not intended to, replace or assume the role and duties of APD, including the Chief or any other City official. The Monitor shall be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.
EDITOR’S NOTE: There are no provisions in the settlement giving the monitor authority to write policy, and no authority is given to disciplined nor to remove and appoint personnel and issue appropriate orders and commands to sworn personnel. The only power the monitor has is to audit as provided in the settlement terms. The specific terms of the CASA are as follows:
“296. In order to assess and report on the implementation of this Agreement and whether implementation is resulting in the outcomes … , the Monitor shall conduct the reviews specified in this Agreement, and shall review APD policies, training curricula, and programs developed and implemented under this Agreement.
B. Compliance Reviews and Audits
297. The Monitor shall conduct compliance reviews or audits as necessary to determine whether the City has implemented and continues to comply with the material requirements of this Agreement.
C. Outcome Assessments
298. In addition to compliance reviews and audits, the Monitor shall conduct qualitative and quantitative assessments to measure whether implementing this Agreement has resulted in the outcomes expressed in [the settlement]. These outcome assessments shall include collecting and analyzing the following outcome data trends and patterns:
[listing A through I] … .”
The Journal Editor’s likely know that all the monitor can do is conduct audits, file reports and report to the federal court, yet the editors failed to challenge Keller for making the accusation that the monitor is “straight-up dictating what’s up at APD.”
JOURNAL EDITORIAL CONTENT
“[Federal court appointed monitor] Ginger has become the weekend guest who never leaves.”
COMMENTARY AND ANALYSIS
This is a very common complaint by Mayor Keller and his administration, Chief Medina and the Police Union, but the complaint is bogus when they fail to assume any responsibility for contributing to the Federal Monitor still being here after 8 years when the Court Approved Settlement Agreement (CASA) was supposed to be fully implemented after 4 years and dismissed after a full 2 years of compliance.
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 key to the Federal Monitor leaving and the case being dismissed is the “full and effective compliance” in 3 compliance levels by APD that the monitor reviews.
After a full 7 years under the CASA and in the last and the 13th Independent Monitors Report (IME13) the Federal Monitor made the following findings on the 3 compliance levels:
Primary Compliance: 100%;
Secondary Compliance: 82%;
Operational Compliance: 59%.
Since the 12th federal monitor’s report, compliance levels went down in 2 of the major compliance areas as follows:
Primary Compliance: No change at 100%
Secondary Compliance: A loss of 9.9%
Operational Compliance: A loss of 7.8%
As has been the case so many times over the past 8 years with two Mayors (Berry and Keller), 3 APD Chiefs (Eden, Geier and Medina), 3 United States Attorneys for New Mexico (Martinez, Anderson and Interim Federici) and 2 Federal Judges (Judges Brack and Browning), APD is in no better position under Keller’s leadership after 4 years to dismiss the case. The CASA is nowhere close to being dismissed after millions spent on the reforms by the Keller Administration.
The only thing that has not changed in 8 years is Federal Court Appointed Monitor James Ginger making damaging findings and the City, the DOJ, APD and the Union never being taken to task by the Federal Court in any meaningful way.
REASONS FOR NONE COMPLIANCE
All of the complaints of delay in compliance went on for a full 7 years, before the pandemic and before the national movement of police scrutiny and accountability of police misconduct. The implementation of the Department of Justice reforms falls squarely on the shoulders of Mayor Keller, Keller’s appointed APD Chief Medina and his 3 Deputies and the Police Union obstruction and interference with the reforms. It is their actions, failures to act, resistance and negligent personnel management that have delayed full implementation of the reforms.
When you read all 13 of Federal Monitor’s reports it becomes very clear that one of the biggest causes of the delay for APD not becoming in compliance with the settlement is the police union opposition and objections to the settlement. The police union leadership have said repeatedly over the last 8 years that the mandated reforms under the consent decree are interfering with rank and file officer’s ability to perform their job duties. The police union went so far as to initiate a $70,000 political ad campaign saying “You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both”, discrediting the need for reforms.
According to the police union, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. The police union has never articulated in open court and in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs and “why they hate” the CASA as articulated by the union president.
It’s likely the union feels what is interfering with police from doing their jobs is the mandatory use of lapel cameras, police can no longer shoot at fleeing cars, police can no longer use choke holds, police need to use less lethal force and not rely on the SWAT unit, police must use de-escalating tactics and be trained in crisis intervention, and management must hold police accountable for violation of standard operating procedures.
JOURNAL EDITORIAL CONTENT
“Keller’s creation of an Internal Affairs Department staffed by civilians rather than police officers was smart, as was creating the position of superintendent of police reform to handle the Internal Affairs division, discipline, the DOJ reform effort and the police academy.”
COMMENTARY AND ANALYSIS
It is false to say that Mayor Tim Keller created an “Internal Affairs Department staffed by civilians”. Keller had nothing to do with it and the Internal Affairs division is still predominately staffed by APD Detectives with civilian support staff. The Internal Affairs Division (IA) is divided into two separate divisions or bureaus:
1. The Internal Affairs Compliance Bureau, Accountability and Oversight Division responsible for investigations of sworn police violating policy and working with the Department of Justice (DOJ) consent decree (CASA) and its implementation of its terms and conditions.
2. The Internal Affairs Force Division deals with investigation police misconduct cases involving excessive use of force and deadly force cases by APD.
APD Internal Affairs employs upwards of 25 full time sworn police detectives that investigate police misconduct and civilian complaints. APD has upwards of 8 “civilian investigators”, but they are not in charge nor do they supervise police officers.
On February 5, 2021, the City of Albuquerque and the Department of Justice (DOJ) filed a stipulated order establishing an “External Force Investigation Team” (EFIT) on a temporary basis to assist APD in conducting use of force investigations by APD officers, while also assisting APD with improving the quality of its use of force by police investigations.
The EFIT team trains APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the agreed to court 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. The EFIT teams are on negotiated contracts with $400,000 allocated for the current fiscal year and are staffed by retired police officers. The EFIT do not have management authority over APD Internal Affairs but function as another lawyer of review and bureaucracy to confirm that use of force cases have been properly done by APD Internal Affairs.
SUPERINTENDENT OF POLICE REFORM
The Journal editorial states in part:
“Keller’s … creating the position of superintendent of police reform to handle the Internal Affairs division, discipline, the DOJ reform effort and the police academy [was smart] .”
COMMENTARY AND ANALYSIS
Many of the citizens stakeholders involved with bringing the DOJ here in the first place and involved with the CASA reforms would disagree that it was “smart” for Keller to create the position of Superintendent of Police Reform. Along with his appointment of Harold Medina as permanent APD Chief, Mayor Keller appointed Sylvester Stanley as “Interim Superintendent of Police Reform” in addition to the position of Deputy Chief Administrative Officer (DCAO). 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.
The Federal Monitors testimony in one status conference with the court are worth repeating:
“Our advice was to bring somebody in with a very good understanding nationally of how a department should be run related to uses of force, issues of mental health, those sorts of things. That was our recommendation. They chose not to implement it. That doesn’t mean it’s wrong. The proof is in the pudding, as they say. And we’ll continue to monitor and see if this bifurcated command system works.”
This testimony given to the Federal Court by the Federal Monitor totally discredits Keller’s assertion that the monitor is “straight-up dictating what’s up at APD.” In other words, the monitor can only make recommendations and not dictate to APD.
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 any Federal Court Approved Settlement Agreements dealing with excessive use of force and deadly force cases and police interaction with mental health issues is a cause of concern. Superintendent Stanley has also been given authority over disciplining police officers 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.
An Interim Superintendent of Police Reform with little or no background in police reforms is not likely going to make much of a difference and is setting Stanly up for failure and giving Keller and Median “plausible” deniability that they are no longer responsible for the reform failures. This “set up” by Keller is very much like what Keller did to former APD Chief Michael Geier when he terminated him and blaming him for failures to implement the reforms. The creation and the appointment of a “Superintendent of Police Reform” will not change the APD culture and union resistance to the reforms. Superintendent Stanley will likely be held ultimately accountable by Keller and Medina and will blame him for any and all failures of APD to reach 100% compliance of the reforms.
With the endorsement of the Albuquerque Journal and recent polls showing Mayor Tim Keller having a solid lead, the general consensus amongst city hall observers and political analysts is that Keller is on his way to being elected to a second 4-year term as Mayor. What Keller cannot take too much comfort in is he will NOT win because he has “done good” as he likes to say , but because his opposition is so weak and neither are qualified to be Mayor as pointed out by the Journal editorial endorsement.
The downside to winning a second term for Keller is that nothing is going to change much for him over the next four years. After 4 years in office, Mayor Tim Keller under his leadership still has a police department that is failing miserably to police itself and is in catastrophic failure. Keller has only himself to blame given the fact he personally selected those that have been in charge of APD and he went back on his campaign promise to hire a new Chief from outside the agency.
Second terms are usually worse than first terms for mayor if they get one. All the problems we have now will still exist, including skyrocketing violent crime rates, APD failing to come into compliance with the DOJ consent decree, and an ever-shirking APD, spiking homeless numbers, increasing poverty, no measurable economic development and a ghost of a downtown.