JIM LARSON is a long-term resident of Albuquerque. Mr. Larson has an extensive and diversified career in law-enforcement both on the Federal and State levels. His law enforcement career includes being a former United States Secret Service Agent, a Dallas Texas Police Officer, and Investigator with the New Mexico Attorney General’s Office and working at Sandia National Laboratories. After retiring from Sandia National Laboratories, Mr. Larson served as a Court Appointed Special Advocate for abused and neglected children. He has been involved with APD civilian police reform including serving a short period of time on the Civilian Police Oversight Board.
On November 14, 2014, the City of Albuquerque and the Department of Justice (DOJ) entered into a Court Approve Settlement (CASA) mandating 271 reforms of the Albuquerque Police Department APD. The settlement was a result of a year’s long investigation of the APD and findings of “excessive use of force” and deadly for and a “culture of aggression.” A major reform measures mandated the creation of a full time, professional Civilian Police Oversight Agency (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. The board also reviews investigations and examines APD policy and procedures. The major goal of the Civilian Police Oversight Agency and its board is that it’s to be the outside entity watching over the APD department when the Federal Court Approved Settlement Agreement is finally dismissed and the Federal Court appointed Independent Federal Monitor is no longer necessary.
For the past two years, the CPOA and its board have been in a constant state of turmoil. The longtime executive director, the chairman and board members resigned and there has been understaffing at the agency. At one point there were only two investigators with the agency, leading to a dramatic decline in the number of cases completed.
On February 23, it was reported that the Albuquerque City Council was attempting to fix the Civilian Police Oversight Agency by making changes to the ordinance creating the agency.
There are two significant changes that were being considered:
1. Reduce the board from nine members to seven and directing the agency to only investigate complaints concerning sworn officers, not civilian personnel.
2. Removed the directive that CPOA board members shall review and approve or amend findings of all agency investigations.
The CPOA is required to publish semiannual reports, however the 2021 data has yet to be made public. Interim CPOA director Diane McDermott said throughout last year there had been only 3 cases where investigators found policy violations, where the police chief differed, sending a letter of non-concurrence. McDermott added that the Chief Medina’s non-concurrences have increased in recent months.
According to McDermott, this sometimes could be due to the department not wanting to hold an officer accountable but there could also be aggravating or mitigating factors that she is not aware of.
JIM LARSON GUEST COLUMN
EDITOR’S DISCLAIMER: The opinions expressed in this article are those of Jim Larson and do not necessarily reflect those of the political blog www.petedinelli.com. Mr. Larson was not compensated for his guest column.
Jim Larson submitted the following case study that he prepared that demonstrates continued failures to bring public transparency and police accountability into investigations of APD shootings and the CPOA review of the APD shooting investigation findings just how dysfunctional and ineffective the Citizens Police Oversight Board (CPOB) has become.
THE CASE STUDY OF ROGER SHAFER
On August 22, 2019, Roger Schafer, a 57-year-old homeless man with a history of mental problems, drug and alcohol abuse and confrontations with law enforcement was spending his time in and around the bus stop just south of the 1-40 interstate freeway and in front a closed Boston Market building. Around 3:00 p.m., calls began to come into 911 about a man acting strangely and pointing a handgun at motorists stopped in traffic in front of the bus stop. Those calls generated an immediate response from the Albuquerque Police Department, including four field officers and three nearby members of the SWAT team.
As they arrived, the officers gathered on the south side of the closed Boston Market building and observed Schafer laying down in front of the bus stop. They approached from the south of the bus stop, arrayed in a line facing Schafer and could better see that he was laying on his back, his hands behind his head. Shafer was confused but obeyed the initial offer’s orders to raise his hands as he raised to a sitting position with his arms on his knees with no weapon visible in his hands. He became argumentative and cursed at officers wanting to know why they were pointing machine guns at him and refused to obey their commands.
Then he sat up on the bench and reached for his waistband. The officers shot him 9 times. The fatal shooting takes place 41 seconds after the officers first contact with Schafer. The attached APD video of the shooting is presented here for context of some of what video the Board reviewed.
The link to APD video is here:
The CASA monitoring team members have given inordinate amounts of “technical assistance” provided to APD and the CPOA over the past years and for every “out-of-compliance” outcome found by the monitor, there are recommendations developed to guide APD into compliance. Despite this assistance, the following timeline and explanation of events demonstrate continued failures to bring public transparency and police accountability in the investigations of APD shootings and the CPOA review of the APD shooting investigation findings.
TIMELINE OF EVENTS
On July 23, 2020, the APD Internal Affairs Force Division presented the results of their joint investigation with the Multi-Agency Task Force (MATF) to the Force Review Board (FRB). The investigation determined the shooting was within policy, there was no officer misconduct and no disciplinary action, and the FRB agreed with the results, although the FRB thought there were some deficiencies in tactics, policy, training, equipment, and supervision.
On April 8, 2021, nine months after, the APD Internal Affairs Force Division reported the shooting investigation results to the FRB, the Board voted to request the full investigative file from the FRB for their review.
On August 12, 2021, two years after the shooting and one year after the Force Review Board concurrence with the APD Internal Affairs Force Division findings that the shooting was within policy, the APD Schafer shooting investigation results were on the Board’s agenda.
ROLL AND ACTIONS OF CIVILIAN POLICE OVERSIGHT AGENCY
The Civilian Police Oversight Agency (CPOA) Board (Board) is required by ordinance to review and monitor all APD Internal Affairs and other administrative investigations, and conclusions related to officer involved shootings. The CPOA Director at that time was required to prepare and submit the findings and recommendations of his review to the Board relating to officer involved shootings.
The CPOA Director was on vacation and did not attend the meeting. The CPOA Board member Bill Kass specifically presented the “description of the case as presented in the Director’s findings” for the Board’s information. He concluded the description saying, “I’ll forego the director’s finding at this point.” After significant Board discussion, Kass said he wanted wrap things up and read “the findings of Director Harness who reviewed this case and attended the FRB because of his belief it’s important to have his findings on record with the Board.” The Director found misconduct by four of the officers. However, Kass did not identify the misconduct, or the Standard Operating Procedures violated, nor was any recommendation of disciplinary action noted.
BEWILDERING MYSTERY THAT REMAINS PUBLICLY UNANSWERED
Why are these details so important? These details are vital because of the following truly bewildering mystery that remains publicly unanswered and not of concern to the Board. After all the referencing to the CPOA and Director Harness findings letter in this OIS case, Interim Director Diane McDermott responded that “I am afraid I do not have any access to the Director’s findings for any of the use of force cases” when asked if “by any chance she had Director Harness’s findings or opinions on the Force Revie Board dealings in this [fatal officer-involved shooting] case” by the then Acting Chair Chantal Galloway at the December 9, 2021, Board meeting.
Shockingly the Board lacked any curiosity or questioning of what “I do not have any access” to the former Director CPOA records means or what the heck was member Kass reading and referring to and where are the records? Instead, they silently accepted her answer and moved on without any interest in clarification.
The Board’s primary questioning targeted concerns of potential officer-created jeopardy where the actions of officers who, without sound justification, willingly fail to take advantage of available tactical concepts like distance, cover, and concealment. Also, they may willingly abandon tactically advantageous positions by moving into disadvantaged positions without justification, or act precipitously on their own without waiting for available assistance from supervisors or other officers.
EMOTIONAL BOARD MEETING
The Board discussion of the CPOA review of the shooting was emotional when they discussed their misgivings about this shooting. They were skeptical regarding the APD conclusions of no policy violations and no officer misconduct when Kass reported the Director found four of the seven officers were guilty of misconduct.
The Board discussion was frequently animated as they discussed their concerns of numerous deficiencies that the Board questioned in tactics; policy; training, and supervision and that were also identified by the FRB.
It was approximately 10 minutes from when the urgent call was dispatched until Schrader was killed. The Board’s concerns included the following:
1. There was no on scene supervisor or anyone in charge of the ad-hoc team of mixed non-supervisory field service and tactical officers
2. There was a seemingly hasty response after 10 seconds of discussion after the officers walked to the corner of the building, especially since they at that time they recognized the victim was no longer waving the gun around and was laying down and
3. There was no attempt to slow down the events to consider alternative approaches that may provide officers a chance to surprise and control him;
4. The was failure to use a vehicle for a tactical advantage of cover, resulting in standing in line the open placing officers and Schafer at greater risk.
5. The Board was concerned the frontal approach reduced or eliminated de-escalation options and limited their array of force options.
Several Board members expressed strident concerns because they “were under the impression that if a police officer shot someone that they would have to administer medical care to that person immediately.” The way officers treated the victim after he was shot was disrespectful, especially when an officer noticed Mr. Schafer was still breathing and it took, as timed by the Board of the video, 5 minutes before any officer began CPR or other medical intervention.
A prosecutorial review memo of the fatal shooting by Michael Cox, DA Special Prosecutor, was cited in a Journal article August 28, 2020. Additionally, the Board was notified via email on November 27, 2021, from Charles Arasim, a concerned citizen advocate, about the existence of the DA Special Prosecutor’s review and the additional investigation related information about which they should be concerned. The email has to this day not been acknowledged, not unusual for correspondence to the Board, and no mention of the Cox review or the relevant details has been discussed by the Board, at least publicly.
Special Prosecutor Cox concluded no charges will be filed against the officers and the case will be closed. He also stated:
“This decision does not limit administrative or criminal action by other agencies, or civil actions by other parties.”</em>
However, Cox felt it necessary to identify some three separate APD contacts with Schafer in the three hours prior to the fourth call that resulted in his shooting. Cox also identified Schafer’s history of contacts with APD, and that information suggests that Schafer’s information ought to have risen to the level of RTTC high-risk call priority.
The Cox memo states:
“The first contact with Schafer was just after noon on August 22, 2019, when James Goldsworthy called 911 to report that a man in a white shirt sitting at the bus stop on Eubank Boulevard NE had just pointed a gun at him. An officer was sent to the bus stop, where he found Schafer alone, drinking a beer. Schafer was polite and compliant and gave a fake name of “Danny” and claimed he’d seen a man with a BB gun in the area.
Schafer had four bags which contained several items, including two twelve packs of beer and, unknown to the officer, a C02 powered pellet gun he’d purchased the day before at Walmart. When asked if he could search his bags, Schafer gave the officer permission to search two of the four bags. The officer found nothing suspicious in the two bags he searched and suggested to Schafer that he move to Los Altos Park, which was nearby. Schafer collected his belongings and walked away.”
Given the violent nature of the first call and the narrative provided by Special Prosecutor Cox, IAFD or someone in management should have questioned the responding officer’s thoroughness, approaching negligence, as part of a thorough antecedent event analysis for lessons learned improvement and some corrective action for the officer. Why did he feel it sufficient to search only the two bags Schafer gave him permission to search? If he did not ask for identification and run a records history on Schafer, why not? Did he just accept the false name Danny?
If the officer had checked Schafer’s history, he would have found decades of minor contacts with law enforcement: DWI’s, minor drug possession, and two instances in 2017 which he’d been picked up for mental evaluation. Two other incidents were more revealing. One in 2016 in which he’d been accused of shooting a pellet gun at a business, and the second, from May 5, 2019-only three months prior to the shooting, in which he’d been arrested for threatening police officers with an ax. In that incident, he pled no-contest to disorderly conduct and was released after serving two days in jail.
If the officer at this first call had identified Schafer and checked for any history the entire event may have been prevented as the Real Time Crime Center purpose is to provide timely and relevant information to assist APD personnel in making informed decisions to sworn personnel responding to calls. The RTTC may have made the information available to him and subsequent officers with interaction with Schafer as high-risk calls are to be prioritized.
The other two remaining calls might have been more significant were the RTTC involved. The fourth and final contact occurred ten minutes later, around 3:00 p.m.
LETTERS TO THE CHIEF
Unfortunately, the Board was not informed by APD of the prosecutorial memo and failed to respond to the advocate email calling their attention to the memo. The CPOA Board decided not to vote on the case at this meeting but opted for member Bill Kass to write a letter to the APD Chief summarizing questions about the shooting they would like answered, both in writing and orally, at their September 9, 2021, meeting. The letter to the Chief was not included as an attachment to the minutes of the meeting, or any subsequent Board meeting.
APD requested a delay of the September 9th meeting, preferring instead the October 2021 Board meeting. Surprisingly, or maybe not, APD did not show up to provide the information. Another letter was discussed, and 12 weeks after the Board’s first request for further information, Acting IAFD Commander Richard Evans provided his view of the incident and explanations in response to the Board’s questions at the November 4th Board meeting.
Evans offered the following caveat:
“My review, I didn’t reinvestigate this case. I’m trying to focus on the current cases, that way you have relevant material coming out of IAFD to review. I don’t want to reinvestigate and try to come up with my own findings or anything like that. I can tell you that our investigations, I’m hoping in the future, that when you receive an investigation from us at this point that your questions are answered.”
It should be noted the Board did not request a reinvestigation, they requested specific explanations regarding their concerns. During Acting Commander Evans presentation, the issue of the Board finding of misconduct by four officers and the APD findings of no misconduct or policy violations was not discussed or resolved.
SHADOW OF THE EL PASO MASS SHOOTING
Evans said the officers were coming off the shadow of the El Paso mass shooting and were concerned this was going to turn into that type of scenario saying it was an explanation for the officer’s approach at least two times. For context it is important to note that on August 12, 2019, a gunman walked into the El Paso Walmart store carrying a semi-automatic civilian version of the AK-47 and opened fire.
Schafer was … waving a handgun around the better part of the day, pointing it at cars, but never shooting or approaching the not too nearby Walmart. He was in the area for about six hours prior to the final call and when officers arrived, he was laying down, no weapon in his hands, and no evidence of any interest of an imminent attack anywhere. Members of the Board expressed misgivings of this explanation.
With respect to not using their vehicles as cover and approaching on foot, he said the officers were afraid anything could trigger this guy who was formerly, but not at the time they arrived on scene, pointing a weapon at cars and flashing a gun and pointing it at a bystander. Evans stated that “It seemed from the documents I read those officers were concerned that he was going to be triggered into actually beginning to discharge his firearm, hence, that is why they approached the way they did.”
It was not clear to the Board how using a vehicle for cover would be more likely to trigger Schafer into shooting than seven uniformed officers, three armed with shoulder weapons, were suddenly confronting and yelling at him standing in a firing line.
With respect to the lack of someone in charge, Evans acknowledged that the supervisors on scene sidestepped and said, “tactical is here and let them handle it” and did not get involved as they could have. “They started blocking off traffic, I can see where they were calling for units to block off traffic, it didn’t seem they were guiding the approach.”
Evans stated that “The Force Review Board identified a concern relating to training, specific to field supervisors being evaluated when arriving on scene to critical incidents. The training academy created a reality-based scenarios (sic).” The Board did not question this or ask to see a scenario.
The presentation by Acting Commander Evans is provided here for those interested in forming their own opinions:
BOARD ACTION AND CASE CLOSED
The Board voted to table the investigation until the December 9, 2021, meeting to provide the Directors findings and have time to consider the presentation and explanation by Commander Evans.
At the December 9, 2021, meeting, the Board approved a motion, to yet again table the case “until [apparently expecting] more information becomes available.”
At the January, February, and March 2022 Board meetings the Schafer case was not even on the agendas.
The Roger Schafer case is closed as far as the DA is concerned. It is also closed as far as the APD IAFD and FRB investigations are concerned, with the officers exonerated of any misconduct. The Civilian Police Oversight Agency cannot find the former Director’s findings report and so many of their own identified serious issues go unresolved. While the public sleeps.
Unfortunately, all the disingenuous “scrutiny” by the Board of Schafer’s killing has resulted in an abandoned quest to seek as thorough as necessary investigation to reach reliable and complete findings and document the investigation, its findings, and its conclusions in writing to promote accountability of the police officers and protect the rights of civilians. An effective oversight function has not yet evolved to the satisfaction of the Albuquerque community’s needs, and it is uncertain if the necessary reforms will stick once federal monitoring ends given the department’s continued periodic backsliding in CASA compliance in this eighth year of federal oversight.
The public remains unaware of this farce as is the City Council, who believes with their recent amendments there is a “new baseline” for effective oversight that will be able to take over after the CASA is terminated.
The link to a related blog article is here:
City Council Attempts To Fix Unfixable; Abolish All Volunteer Police Oversight Board As Too Dysfunctional And Unworkable; City Inspector General Should Take Over Functions Of Police Oversight Agency And Its Staff