EDITOR’S NOTE: Freelance reporter Charles Arasim contributed to this blog article regarding the Citizens Police Oversight Agency. He is a citizen police oversight advocate, and as such was recognized by the Department of Justice when the Court Approved Settlement Agreement was negotiated. Mr. Arasim has scrutinized the process and usefulness of the Police Oversight Ordinance and Agency.
On November 12, 2021 the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 14th Independent Monitors Report. The report is the most critical and scathing to date as to the city’s intentional noncompliance and failure to investigate hundreds of police use of force cases. The report covers the time frame of February 1, 2021 to July 31, 2021. The link to review the entire 331-page report is here:
According to the report:
“The most important issues affecting APD during the IMR-14 reporting period involve misconduct investigations, use of force investigations, the lack of progressive discipline when misconduct is found, and supervision and leadership.
All non-force-related misconduct investigations completed by APD … were found to be deficient. A total of 17 misconduct cases, 6 investigated by Internal Affairs and 9 area command investigations were reviewed, including two that were completed by outside agencies.
The only properly investigated case reviewed by the monitoring team this reporting period was completed by an outside agency. In two consecutive reporting periods, a virtual shut down of use of force investigations has occurred in Internal Affairs.
Only seven, or 3%, of the 216 Level 2 cases opened were closed. Only 1 of those 7 was completed within 90 days, or less than one-half of a percent. Only two of 91 Level 3 use of force cases opened during this period were completed by [Internal Affairs Force Division] IFD or 2%. Neither of the 2 cases were completed within the CASA required 90-day period.
A second backlog of 667 uninvestigated use of force cases … was reported. This second backlog is more than double the initial backlog APD dealt with from 2018-2020 and does not include any of the contemporary cases left uninvestigated by IAFD.
Approximately 83% of these cases are already time-barred for discipline in accordance with the Collective Bargaining Agreement [police union contract], should misconduct be found. Since its discovery, this backlog has been reduced from 667 cases to 660 cases as of October 25, 2021. At this rate of case productivity, we project that it will take APD 94 months to “clear” this second backlog, which, again, would ensure no disciplinary actions for policy violations in another 667 cases.”
PLAN TO TACKLE SEVERE BACKLOG OF CASES
On February 6, a second hearing was held on the 14th Independent Monitor’s Report where a plan was unveiled to tackle the 660-case backlog of uninvestigated level 2 and 3 use of force cases. Level 2 use of force is when an officer has to use force and the person is not injured. Level 3 includes anything that sends someone to the hospital or death, like officer-involved shootings. The Department of Justice has complained that APD doesn’t investigate use of force cases thoroughly and they are slow to look into cases.
APD wants the External Force Investigative Team established last year to help them out and sort through the cases. In other words, after 7 years of the CASA, the Albuquerque Police Department (APD) still can not do the job of policing itself. The City established the External Force Investigation Team 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 is supposed to be temporary to train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers.
APD is seeking the EFIT to expand its scope of work and tackle the backlog of cases that formed through the first half of 2021. Currently, APD has 25 sworn officers and civilians working on the EFIT. APD is working with EFIT, along with their own officers, to look at the backlog of cases. APD, the City, and the Department of Justice are in the process of negotiating the contract with the External Force Investigative Team. If it is approved, the contract would cover 2 years.
CREATION OF THE EXTERNAL FORCE INVESTGATION TEAM BY COURT ORDER FOR CITY TO AVOID CONTEMPT OF COURT
On Friday, December 4, 2020 during an all-day status conference hearing on the 12th Compliance Audit Report of the APD reforms mandated, 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).
During the hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released on November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told Judge Browning:
“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”
During the December 4 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 hearing to approve the stipulated order, Paul Killebrew told the court the motion 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.”
On February 26, 2021, the City of Albuquerque and the United States Department of Justice (DOJ) entered into a Stipulated Agreement filed with the United States District Court to stay a contempt of court proceeding against the city for willful violations of the Court Approved Settlement Agreement (CASA). The Stipulated Order established the External Force Investigation Team (EFIT).
On June 23, 2021, a contract was signed with the City, enabling EFIT to commence full operations on July 16, 2021. The 2021-2022 City of Albuquerque approved budget allocates $400,000 to APD for the Use of Force Review contract for its first year of operation. The city link to the budget is here:
The EFIT is on call 24 hours a day, seven days a week. It is required to respond to all police use of force call outs within 1 hour of notification. All Use of Force (“UOF”) investigations undertaken by the EFIT must be completed within 60 days with an additional 30-day supervisory review period for a total of 90 days from start to finish. Pursuant to the Federal Court Order, EFIT must conduct joint investigations with APD Internal Affairs Force Division (“IAFD”) of all Level 2 and Level 3 Use Of Incidents . This includes all Tactical Deployments where there is APD police Use of Force is utilized. EFIT must also assist APD with training concerning the its Use of Force policies.
EXTERNAL FORCE INVESTIGATION TEAM’S SECOND QUARTERLY REPORT
On February 16, 2022, the External Force Investigation Team’s (EFIT) filed its Second Quarterly Report for the time period of October 16, 2021 to February 16, 2022. The report is 77 pages long with various court pleadings attached as exhibits. The link to the EFIT Second Quarterly Report is here:
EDITOR’S PRELMINARY COMMENTARY: The External Force Investigation Team report makes it abundantly clear that after a full 7 years of the CASA reforms, APD is still failing miserably to police itself and Internal Affairs is unable to keep up. It is a very bad state of affairs when an outside contracted group of professionals such as EFIT is needed to be brought in and paid to investigate use of force cases and assume a tremendous backlog of 660 use of force cases because APD unilaterally decided not to do the work. What is pathetic is that the EFIT is forced to train APD how to do such investigations, provide guidelines to APD sworn, teach APD sworn police how to conduct interviews, teach APD sworn how to gather evidence and complete use of force investigations, teach APD sworn how to fill out simple forms with basic contact information, deal with high turn over within Internal Affairs, deal with police union interference with police misconduct interviews, forced to offer incentive pay for Internal Affairs detectives to stay, required to go out on call outs with APD Internal Affairs Use of Force personnel and essentially hold their hand as use of force investigations are conducted, and insist on professionalism to the point telling APD personnel how to dress appropriately. All of these points are highlighted in the EFIT report and need to be kept in mind when the report is read.
Below is an edited, redacted and condensed version of the report. It contains the major highlights of the Second Quarterly Report, it adds sub-titles, deletes many confusing acronyms to assist the reader and performance measures and statistics are bolded for emphasis:
“The External Force Investigation Team known as the EFIT team, is currently providing on going mentoring of all Detectives/Investigators to include, but not limit, Use of Force scene investigative practices, interview, and written reporting of the UOF investigations.
The EFIT Executive Team worked with the APD Internal Affairs Force Division to establish a detailed Internal Affairs Investigation Process Narrative … that governs the response and investigative protocols to any Level 2 and 3 Use of Force cases. These documents are the basis for EFIT to evaluate the Internal Affairs Force Division.”
[USE OF FORCE INVESTIGATIONS OUT OF COMPLIANCE]
“As of this report, 15 out of the 141 (10.63%) of the Use of Force investigations closed by EFIT and APD Internal Affairs Force Division were found to be out of APD Use of Force policies. However, 48 out of the 141 (34.04%) of the UOF investigations closed by EFIT and [APD Internal Affairs Force Division] were found to be out of compliance when evaluated against the Process Narrative used to assess investigations. These violations range from
1. APD Internal Affairs Force Division failing to conduct required Use of Force meetings and/or interviews without EFIT’s attendance
2. APD Internal Affairs Force Division lack of written or incomplete investigative plans.
3. Failure to assign Use of Force investigations for extended periods of time.
4. Failure to upload and/or provide documents to EFIT and incomplete UOF scene investigations – to include documentation from witnesses and officers.”
EIDITOR’S NOTE: The EFIT report outlines the steps that were taken to correct all 4 areas of violations.
EFIT opened joint investigations with IAFD on each incident. EFIT and APD Internal Affairs Force Division completed 141 investigations within the 90-day time period outlined in the Stipulated Order. … EFIT assumed 10 Use of Force investigations pursuant to … the Stipulated Order as those investigations became close to violating the stipulated timelines.”
[EFIT GOALS AND MANDATE]
“It is EFIT’s goal to teach, mentor and professionalize APD Internal Affairs Force Division so that when this assignment is completed, EFIT leaves the City with a sustainable division that investigates Use of Force incidents in a timely, objective and professional manner. … A major accomplishment in this reporting period, is that 7 APD Internal Affairs Force Division Detectives and 2 APD Internal Affairs Force Division Investigators were identified as attaining the requisite experience level to start transitioning the UOF Interview process from a joint EFIT and APD Internal Affairs Force Division interview, to conducting interviews without EFIT’s participation.”
[TRANFERS AFFECTING STAFFING]
“As of August 28, 2021, the Internal Affairs Force Division [was to be] be staffed with 25 Detectives. Currently, APD Internal Affairs Force Division has 11 civilian investigators and 20 sworn detectives, [for a total of 31]. [However] in recent discussions with the APD Internal Affairs Force Division Commander, EFIT discovered that by the end of February 2022, APD Internal Affairs Force Division will be at a total staffing level of 25 due to retirements, promotions, officers “bidding” or requesting another assignment out of APD Internal Affairs Force Division and back to Field Divisions and the loss of Investigators. … EFIT has concerns that these numbers fluctuate and retaining both sworn and civilian personnel is a constant concern as APD Internal Affairs Force Division again moves close to falling below required staffing levels. “
“… EFIT continues to express concern about retaining Investigators and Detectives in APD Internal Affairs Force Division. The two [administrators] in charge of the EFIT met several times with APD’s senior officers and counsel for the City regarding this issue. In addition to detectives transferring out of APD Internal Affairs Force Division … two civilian investigators after completing their IAFD training applied to transfer out of APD Internal Affairs Force Division to APD’s Organized Crime Task force without informing APD Internal Affairs Force Division Command Staff, including but not limited to, the Acting Superintendent of Reform.
Retaining trained APD Internal Affairs Force Division Detectives/Investigators, apart from the continued violations of the Process Narrative, is the EFIT Executive Team’s main concern related to the transition process of EFIT and APD Internal Affairs Force Division and Internal Affairs working totally independently. EFIT anticipated that this would be addressed to promote sustainability, adhering to the court mandated 25 personnel, and longevity during the Albuquerque Police Officers’ Association’s union contract process.”
[UNION CONTRACT PROVIDING INCENTIVE PAY]
“… The collective bargaining agreement signed by the City and the APOA on December 30, 2021, provides for APD Internal Affairs Force Division personnel the same incentive pay as their counterparts receive for remaining within the same area command or APD Internal Affairs Force Division and Internal Affairs. According to the union contract:
“An officer will receive $1,300.00 for each year served for the entire year in the same Area Command or the Internal Affairs Division, up to and capped at four years of continuous service or $5,200.00 per year.”
While EFIT believes this will be helpful, additional incentives must be explored by APD to ensure that highly trained and motivated teams remain within APD Internal Affairs Force Division.
EFIT recommended that Investigations be required to reimburse the City for training costs if they choose to leave Internal Affairs Force Division within a proscribed period of time … . In addition, senior APD command must communicate if any Internal Affairs Force Division member seeks to apply for another Division once such an application or notice is received.
[GOAL TO RETURN USE OF FORCE INVESTIGATIONS BACK TO APD]
“The DOJ and the City informed EFIT that its contract will be extended and a new Stipulated Agreement will be filed with the Court. Ultimately, the goal is for EFIT to return responsibility back to APD for Use of Force investigations.
The EFIT Executive Team worked to establish a detailed “Process Narrative” that governs the response protocols to Level 2 and 3 Use of Force cases. EFIT is constantly reviewing this document to ensure that it is serving the interests of EFIT’s mandate.
To that end, EFIT made several modifications as necessary. … The Process Narrative was disseminated to all IAFD Detectives/Investigators and EFIT Investigators. … This document establishes specific timelines and procedures to be followed for every Level 2 and Level 3 UOF investigation. All new IAFD Detectives/Investigators are provided the Process Narrative during the onboarding and internal training sessions.
Cases that are fully investigated by Internal Affairs Force Division and EFIT are reviewed by the EFIT Team Supervisor then forwarded to the Internal Affairs Force Division Sergeant for their review. The Internal Affairs Force Division Sergeant determines if the force is within ADP policy and forwards the case for an IAFD Command review. It is after the Command level that the EFIT Executive Team reviews the UOF determination and recommends closing a case.”
To date, EFIT disagreed on 4 Use Of Force classification determinations as to whether the Use Of Force is out of APD policy. Pursuant to the Stipulated Order these cases are discussed with APD (DOJ and IMT are notified). After these meetings and reconsideration by IAFD Command, these Use Of Force cases were ruled out of APD policy. Provisions were written into the Stipulated Order should EFIT need to assume full responsibility of an investigation or if EFIT disagrees with IAFD’s investigative findings.”
[USE OF FORCE CASES ASSUMED BY EFIT]
“Between October 25, 2021, and February 16, 2022, EFIT assumed 10 Use of Force investigations at various levels of completion … as these investigations became close to violating the stipulated timelines. Specifically, on January 10, 2022, EFIT assumed responsibility … and … the Stipulated Order to finish a Use of Force investigation. EFIT learned that an IAFD detective experienced an equipment malfunction and lost the evaluative narrative.
Given past poor communications issues internally with [Internal Affairs Force Division and externally with EFIT, and the fact that the investigation was in serious jeopardy of becoming time-barred, EFIT assumed the investigation. This case was completed by EFIT, but it also went through the Supervisor and Command review and was closed in 87 days on February 6, 2022.”
[INCREASED SUPERVSION NEEDED AT ALL LEVELS]
“EFIT continues to recommend increased supervision at all levels of APD Internal Affairs Force Division going forward to prevent the takeover of cases from occurring in the future. In addition, such supervision is necessary to ensure that APD Internal Affairs Force Division Detectives/Investigators are adhering to the procedures contained in the Process narrative. These issues are particularly acute at the Sergeant, Deputy Command and Command levels.
“First line Supervision is paramount to the success of APD Internal Affairs Force Division. These supervisors must take an active role with Detectives/Investigators under their command to know each Use of Force investigation and assist the Detectives/Investigators recognize the strengths and weaknesses of each investigation. By conducting case status meetings twice a week utilizing a robust investigative plan and reviewing OBRD prior to receiving the case for a supervisor review, these Use of Force cases will withstand EFIT’s scrutiny.
Without the first line supervisors taking this role, it will continue to prolong the EFIT oversight of IAFD. The EFIT Executive Team will continue to monitor these issues very closely going forward. Finally, the relevant documents governing EFIT also outline the process Internal Affairs Force Division and EFIT need to take if a Use Of Force might subject an APD officer to criminal liability. EFIT/IAFD have not made any referrals to the Multi-Agency Task Force during this reporting period. Closed UOF cases are presented to the FRB.”
“The EFIT Executive Team is pleased to report that it established protocols … to begin to transition IAFD Detectives/Investigators to conduct interviews without EFIT’s direct supervision. Once a Detective/Investigator is identified by an EFIT Investigator, Supervisor, or Executive Team Member as attaining the requisite capabilities to conduct interviews without EFIT’s direct supervision, the EFIT Executive Team determines whether the IAFD Detective/Investigator may conduct interviews.
[TRANSFERING DETECTIVES TO INTERVIEW TRANSITION PROCESS]
“Beginning on January 17, 2022, to present, the EFIT Executive Team identified nine Detective(s)/Investigator(s) from Internal Affairs Force Division that will be moving into the Interview Transition Process. EFIT will continue to identify Detectives/Investigators who are eligible to enter the Interview Transition Process. If successful in this process, these Detectives/ Investigators/Detectives will become the first to conduct complete investigations without direct EFIT supervision of EFIT. Additionally, as of this report, these Detectives/Investigators completed interviews without EFIT’s oversight. EFIT’s evaluation of these interviews has been very positive to date and members of IAFD admitted into this process are complying with the aforementioned Interview Transition Policy, EFIT investigators reported a positive interaction.
The EFIT Executive Team continues to meet with all Area Commanders and many of the specialized unit Commanders, to explain the EFIT process, its protocols, and what their officers can expect upon EFIT responding to UOF incidents. Additionally, it was important for Commanders to freely relay concerns they are experiencing with the Use of Force investigative process. The EFIT Executive Team continues to conduct field visits and various Division briefings concerning EFIT, specifically any changes or modifications to the Process Narrative and relevant protocols.”
[LEVELS OF PROFESSIONALISM ESTABLISHED]
“… EFIT … accomplished several changes to the IAFD investigatory process and established a certain level of professionalism within the IAFD team. The EFIT Executive Team addressed a number of significant issues facing APD. Indeed, the Process Narrative and associated protocols were revised on more than one occasion as a result of updates required to address issues. …
When EFIT began, Internal Affairs Force Division was conducting interviews somewhat haphazardly in random locations. Detectives were asking leading questions and did not allow witnesses to state what happened by using open-ended questions. Essential critical listening skills were not present. There were interruptions of interviewees during their statements.
EFIT stressed the avoidance of leading questions and, for the most part, the Detectives/Investigators adhered to this standard with minor exceptions that are addressed with the Internal Affairs Force Division Detectives/Investigators. Internal Affairs Force Division Detectives/Investigators and the Officers under UOF investigations are now dressed appropriately and professionally.
Investigative reports are improving with each EFIT review and IAFD is now presented with high-quality reports for the Supervisory, Command, and FRB review. EFIT believed that it was imperative that the tone and tenor – in accordance with the seriousness of these investigations – was established at the outset. That professionalism continues to develop as EFIT moves forward.”
[INTERVIEW INTERRUPTIONS BY UNION REPRSENTATIVE]
“EFIT reported on the prior actions of the APOA where the union’s representatives interrupted interviews in clear contravention of the Collective Bargaining Contract. While EFIT, for the most part, did not experience these issues, unfortunately there were incidents where representatives interrupted interviews in an unprofessional manner. When such conduct was identified, EFIT Administrators met with the Union’s Attorney and the union Vice President and notified them that such conduct would not be tolerated in the future. The union attorney informed all participants that he would address these issues with the relevant APOA representatives and such conduct would immediately cease. …”
“With regards to forms, there remains a continuing concern that admonitions and witness statements are incomplete from the Use of Force scene. Admonishments and witness statements are still taken by both Internal Affairs Force Division Detective/Investigators and field officers that lack much of the important witness’s biographical data, contact information and case information.
IAFD must ensure that if documentation is obtained by field officers documentation needs to be reviewed by IAFD for completeness. In addition, Supervisors must ensure that Detectives/Investigators complete the relevant forms. [EFIT has] recommended… and reviewed accepted forms and encourage the standardization of use within the Division to capture all the pertinent information needed for a law enforcement investigation.”
[USE OF FORCE INVESTIGATIONS OUT OF COMPLIANCE]
As the EFIT Executive team noted [above] out of the 141 (34.04%) of the UOF investigations closed by EFIT/IAFD were out of compliance when evaluated against the Process Narrative. It should be noted that 32 of these 48 investigations (66.66%) were out of compliance in part for lacking accurate and/or effective investigative plans. This is a fundamental failure at the IAFD supervisory level and is an impediment in transitioning IAFD UOF investigations back to APD without EFIT’s involvement. Where EFIT identifies those Detectives/Investigators that are found to be lacking in certain skill sets discussions are immediately held with IAFD Command to address the areas in need of improvement.
Some of the additional training is completed by additional mentoring by IAFD and/or EFIT. More intense training of Investigators/Detectives is conducted through IAFD remedial actions and in certain occasions those Detectives/Investigators in need are placed on a very structured Performance Improvement Plan.
While EFIT is not involved with misconduct investigations stemming from a Use Of Force investigation, the EFIT Executive Team observed that when closing out Use of Force cases, Internal Affairs Force Division often requests extensions for the misconduct investigations, which would authorize them to extend the investigation to 120 days. However, certain of these cases exceeded required timelines and are over 120 days. This issue was also raised by the Force Revie Board voting members, as Use of Force investigations are presented to the FRB while the misconduct case is still pending resolution. EFIT believes that misconduct investigations resulting from a Use of Force should be concurrent investigations with Use Of Force closures.
[ON-SCENE ACCOUNTABILITY CHECK-LIST]
“EFIT recently discovered that Internal Affairs Force Division personnel present on-scene for tactical activations were haphazardly collecting the Special Operations Division (“SOD”) On-Scene Accountability Check-list. … This SOD On-Scene Accountability Checklist must be completed by the Tactical On-scene Sergeant and provided to Internal Affairs Force Division/EFIT. …
Specifically, this form lists everyone who is on scene, the force used and/or witnessed and must be collected prior to, or during the on-scene briefing. This is a roadmap to ensure that everyone is accounted for, admonished, photographed and all necessary protocols have been met and completed. Additionally, EFIT recommended a procedural change and Special Order be issued regarding an SOD Tactical Activation when assistance is required by an outside law enforcement agency at the direction of the APD SOD Tactical Commander and the assisting agency utilizes force. … .”
[NOTIFYING SWORN WHEN CASES CLOSED]
“During the December 16, 2021 hearing on the Federal Monitors 14th Report, the EFIT Administrator … advised the court that EFIT was told that officers utilizing force were never provided with a disposition letter after cases were closed by Internal Affairs Force Division. The EFIT Administrator found it unconscionable that an Officer would not know whether his use of force was found in or out of policy. A letter notifying the Officers was developed and approved by APD in November 2021, however, due to numerous administrative delays the letter was never sent to Officers. As a result of subsequent actions taken, APD Officers are now notified when force investigations are closed by Internal Affairs Force Division / EFIT and the findings of same.”
[USE OF FORCE INCIDENTS INVESTIGATED]
“EFIT constantly monitors the Use Of Force investigation case assignments to ensure that work is distributed evenly within Internal Affairs Force Division. On average each Detective/Investigator has 4 Use Of Force investigations. This issue is crucial to ensure that the applicable timelines are met. This issue becomes particularly acute as assignments are made between sworn officers and civilian investigators.
EFIT made a number of recommendations to facilitate this process that IAFD accepted and implemented regarding callouts and case distribution. EFIT is also working closely with the [Internal Affairs Force Division] /Deputy Commander … on many issues and recommendations including, but not limited to, call outs. It is only though this collaborative approach between [Internal Affairs Force Division] Command and EFIT, that the court-ordered mandate and eventual successful return of the IAFD investigatory function can revert back to the Department.
[“ON SCENE” CLEARANCE RATES AND USE OF FORCE INCIDENTS RESPONDED TO BY EFIT]
Since October 2021, EFIT kept statistics as to the amount of time “on-scene” during a UOF and EFIT is clearing the scenes in 54.20 minutes.
Since activating on July 16, 2021, EFIT responded to and/or are investigating 258 Use of Force Incidents
OF incidents including 6 Officer Involved Shootings.
Of the 258 Use Of Force incidents:
3 were classified as no Use of Force;
20 were classified as Level 1;
192 were classified as Level 2;
43 were classified as a Level 3 Use Of Force.
The majority of the UOF callouts emanate from the Southeast Area Command.
From September 1, 2021, to January 6, 2022, EFIT identified 14 Level 2 and Level 3 Use Of Force Cases that had Electronic Control Weapon applications 17 (half were closed by EFIT/[Internal Affairs Force Division]).
Three of the 7 close cases (5 total applications) 42.87 %, were determined to be out of APD policy. Of the 7 ECW UOF investigations still under various stages of investigation and/or supervisory review, misconduct investigations for the ECW (Electronic Control Weaponry) applications have been opened on 3 of these cases. EFIT recommends that this issue be reviewed in detail to determine the reason for the significant ECW applications that are deemed to be out of policy.
As of January 27, 2022, [Internal Affairs Force Division]/EFIT are averaging 55.90 days of investigative time per case. While this is higher than previously reported, it is still under the 60-day approved time frame mandated under the Stipulated Order. As EFIT noted in this report, [Internal Affairs Force Division] Detectives/Investigators on average have only four Use Of Force investigations.
EFIT identified three main issues as to why these investigations are not completed in an expediently manner:
First, is a perceived lack of urgency.
Second, time management skills are deficient and
Third, the lack of IAFD Supervisory involvement (discussed below).
Internal Affairs Force Division Supervisors must proactively meet with Detectives/Investigators under their command to ensure investigations are completed as expeditiously as possible and are not consistently hitting the end of the 60-day timeline. Additionally, IAFD Command staff must ensure that the supervisor review is completed within 15 days from receipt of the completed UOF investigation from the Detectives/Investigators. …
If Internal Affairs Force Division Supervisors are ensuring that the Detectives/Supervisors under their command are completing an accurate investigative plan and are consistently meeting with these Detectives/Investigators, there is absolutely no reason that APD Internal Affairs Force Division cannot shorten the current average of 24.51 days to a 15-day period …
It should be noted that EFIT is not advocating speed at the expense of a thorough and complete investigation. However, EFIT believes that it is possible to have a thorough and complete investigation in a timely manner. When EFIT provides direct guidance during a UOF investigation the total completion time is averaging 88.86 days. EFIT believes that with proper supervision by [Internal Affairs Force Division] these investigation and review timelines will decrease.”
[TIMELY COMPLETION OF INVESTIGATIONS]
EFIT is also concerned that the timely completion of investigations will cease upon transfer back to IAFD.
Each of EFIT’s three teams responded to a total of 246 UOF callouts with the Internal Affairs Force Division. This break downs is as follows:
Team 1 – 88 callouts;
Team 2 – 76 callouts; and
Team 3 – 82 callouts.
During this reporting period, EFIT/IAFD are averaging 5.38 UOF calls per week, this is significantly less than the last quarter reporting period. The IAFD/EFIT response time to the scene averages 24.85 minutes and is well under the protocols established in the relevant documents that established EFIT.
EFIT and [Internal Affairs Force Division] continue to conduct a weekly case status meeting and track cases at the 40, 60, 75, 85 and 90-day intervals.
These meetings identify concerns regarding investigative obstacles, case prioritization and allocation of resources. Any concerns are addressed with IAFD Detectives/Supervisors immediately and if necessary, with IAFD command at the conclusion of the meeting.
EFIT reviews cases at the 50-60 day and 85-90 day mark if a matter should be assumed due to timeline/investigative concerns.
A Detective/Investigator must still attain a 95% proficiency rating for two consecutive terms before they are deemed proficient to conduct investigations outside of the presence of an EFIT investigator. The EFIT Executive Team also established protocols to ensure that IAFD continues to advance the investigatory process as outlined above.
The link to the complete, unedited EFIT Second Quarterly Report with attached exhibits is here:
MELTDOWON OF CIVILIAN POLICE OVERSIGHT AGENCY
A major reform measures mandated by the Court Approved Settlement Agree (CASA) is the creation of a full time, professional (CPOA) with a full time Director and investigators and with a 9-member, all-volunteer Civilian Police Oversight Board appointed by the city council. The CPOA board is ultimately responsible for investigations of police misconduct and making recommendations to the Chief of Police for disciplinary actions. Early December, 2021, it was reported that the Chairman of CPO resigned along with 3 others. The resignation came less than 2 months after the CPOA resigned and less than 1 month after the Superintendent Of Police Reform announced his retirement at the end of December. All 5 positions remain vacant.
COMMENTARY AND ANALYSIS
Review of the EFIT second quarterly report indicates that it is making progress. However, there are any number of mandatory provisions under the Court Approved Settlement Agreement that makes it difficult for APD’s Internal Affairs to do its job. Those include:
APD management must now hold all subordinate police officers accountable for all levels of violations of standard operating procedures.
APD Police officers are required to intervene when they witness and are concerned about other officer’s use of force. “Old guard” police officers view it as a “snitch” program where officers turn on fellow officers.
Sworn police officers believing that many standard operating procedures should not be enforced as being too petty or serving no useful function.
The mandatory “paper work” associated with any degree of use of force is too cumbersome.
Mandatory notification to superiors for investigation by police officers who witness another officer’s “excessive use of force” or violations of CASA reforms.
CITIZENS POLICE OVERSIGHT
The Citizens Police Oversight Commission is in constant political turmoil and currently has 4 vacancies. It is also clear that Citizens Police Oversight Commission, for a all of its good intentions, is in a complete meltdown incapable of doing its job of police oversight and should be abolished as unworkable and unsustainable as voluntary commission.
APD has consistently shown over many years it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice. The APD Internal Affairs Unit needs to be abolished along with the Citizens Police Oversight Board and their functions absorbed by the Office of the Inspector General. The EFIT should be made permanent and be a unit of the General Council’s office.
COMMENTARY BY CHARLES ARASIM ON POLICE OVERSIGHT AGENCY
“It is obvious the City has failed in correcting APD structural and systemic deficiencies of insufficient oversight, inadequate training, and ineffective policies that contributed to the 2014 DOJ Investigative Report findings that APD engaged in a pattern and practice of excessive use of force, including deadly force, in violation of the Fourth Amendment.
In the most recent report Independent Monitors Report, IMR-14, dated November 12, 2021, the Federal Monitor reviewed the CASA requirement that the city shall implement a civilian police oversight agency … that provides meaningful, independent review of all citizen complaints, serious uses of force, and officer involved shootings by APD and shall also review and recommend changes to APD policy and monitor long-term trends in APD’s use of force. The Federal Monitor reported the CPOA failed to meet the requirements and is in “non-operational compliance,” meaning the adherence to policies is not apparent in the day-to-today operation of the agency.
Seven years of existence has not resulted in quality, rigor, or consistency in processes by the Board or the Executive Director’s office when conducting civilian complaint investigations or review of APD findings in serious uses of force or officer involved shooting incidents.”
Simply put, APD is incapable of policing itself and APD’s Internal Affairs continues to fail miserably. Sworn police by their very nature and loyalty to each other look the other way when it comes to police misconduct. The Citizens Police Oversight Commission, although created with good intentions, is also a failure with an all citizen volunteer board members unwilling and likely incapable of working with each other. The Citizens Police Oversight Commission should also be abolished.
The investigation of police misconduct cases and all use of force cases and serious bodily harm cases should be done by “civilian” personnel investigators not by Internal Affairs nor by the Citizens Police Oversight Commission.
The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by sworn police should be assumed by the Office of General Council in conjunction with the City Human Resources Department and the Office of Internal Audit where necessary. The Office of Independent Council would make findings and recommendations to the Chief of Police for implementation and imposition of disciplinary action.