On February 26, 2021, the City 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 May 16, the External Force Investigation Team filed with the Federal Court its third Quarterly Report on the progress made by APD. The third report is 38 pages long and covers the time period of February 17, 2022 to April 22, 2022. It has 8 Exhibits (A through H). The report was prepared by EFIT Administrator Darryl S. Neier.
EDITOR’S NOTE: The link to the EFIT 3rd Quarterly Report, along with Quarterly Reports 1 and 2, will be found at the below link under the title External Force Investigation Team Quarterly Reports once posted by the city:
This blog article is a report on the findings of the EFIT contained in the report. It also touches on the 15th Federal Monitors report released prior to the EFIT Third Quarterly report and reports on the approval of APD’s budget. Reviewed together, the 15th Federal Monitors Report and the EFIT 3rd quarterly report represent that APD has taken two steps forward followed by two steps backwards in coming into compliance with the DOJ reforms mandated by the consent decree.
The APD Internal Affairs Force Division (IAFD) intentionally did not investigate 667 cases of police “use of force cases” to the point that even if investigators found officers hadn’t followed policies, they could not be disciplined because the deadlines had passed.
The External Force Investigation Team (EFIT) was established to train APD’s force investigators and ensure cases were being investigated within 90 days. Since EFIT started its work, no new cases have been added to the backlog. Federal Judge James Browning who is assigned to oversee the settlement has signed off on a plan to allow the EFIT to continue its work and also to review the backlog cases.
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.
MAJOR HIGHLIGHTS EFIT THIRD QUARTERLY REPORT
Major highlights and findings that can be gleaned from the third EFIT Quarterly Report and that have been edited to assist public consumption are as follows:
CASES OUT OF COMPLIANCE
“As of this report, 21 out of the 229 OR 9.17% of the Use of Force investigations closed by EFIT and the Internal Affairs Force Division were found to be not within the APD Use of Force policies. This is a decrease from the 10.63% reported in the previous quarterly report.
Most significantly, 102 out of the 229 or 44.54% of the Use of Force investigations closed by EFIT and the Internal Affairs Force Division were found to be out of compliance when evaluated against the Process Narrative utilized to assess investigations. This is an increase from 34.4% reported in the previous quarterly report). This development must be an obvious concern for the Internal Affairs Force Division. (Page 5 of of EFIT report.)
As of April 22, 2022, EFIT and the Internal Affairs Force Division responded to and/or opened investigations on 3,674 Use of Force incidents to include 11 Officer Involved Shootings (“OIS”) and made 3 referrals to the Multi-Agency Task Force (“MATF”) for potential criminal violations.
EFIT and the Internal Affairs Force Division completed 229 investigations within the 90-day time period outlined in the Amended Stipulated Order. (Page 7 of report.)
EFIT assumed 10 Use of Force investigations pursuant to … the Amended Stipulated Order as those investigations became close to violating the stipulated timelines.
Pursuant to the Amended Stipulated Order, the City drafted a contract for EFIT to establish a secondary team (“EFIT 2”) to investigate and address the 667 backlog cases. While the EFIT 2 contact is pending approval with the City, the EFIT Executive Team has been diligently interviewing and securing the personnel and prepared the methodology by which the EFIT Backlog team will address the backlog cases pursuant to the Amended Stipulated Order. (Page 7 of EFIT report.)
As of August 28, 2021, IAFD met with the staffing requirement that IAFD must be staffed with 25 Detectives/Investigators. …
Currently [the Internal Affairs Force Division] has 14 civilian Investigators and 13 Detectives. [R]ecent discussions with the Internal Affairs Force Division Commanders revealed that by the end of August 2022, the Internal Affairs Force Division may lose several of the most experienced personnel due to retirements, promotions, officers requesting [to go] back to field divisions and specialized field units. Chief Medina authorized the staffing of [the Internal Affairs Force Division] to be increased to 31 personnel in anticipation of the expected loss.”
ACCOMPLISHMENTS TO DATE
“The EFIT Executive Team reported that … pursuant to the established protocols, [it began] to transition Internal Affairs Force Division detectives to conduct interviews without EFIT’s direct supervision. Nine Internal Affairs Force Division … personnel are progressing through the … the system that will ultimately lead to an IAFD Detective conducting Use Of Force investigations without direct supervision of EFIT. (Page 13 of EFIT report.)
Again, once a Detective 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 will make a determination that the IAFD Detective may conduct interviews … .
As of this report, EFIT/IAFD responded to, and are investigating, a total of 367 Use of Force incidents. These investigations are completed on an average of 54.31 days. (Page 22 of EFIT Report. report.)
In addition, 229 Use Of Force investigations were closed, averaging a total of 88.01 19 days for closure. While this currently meets the applicable timelines under the relevant documents, it will need to be addressed going forward to lower this number.
Supervisor reviews still average 22.87 days however, EFIT observed slight improvement from February 1, 2022, through April 22, 2022. The average supervisor review during this time period is now 17.41 days.
Of the Use Of Force cases closed (229), 21 cases were out of APD Policy or 9.17% and 102 of the 229 investigations or 44.54% failed to comply with the Process Narrative.
These levels remain extremely high and EFIT repeatedly meets with APD to address them. During this reporting period APD experienced 5 Officer Involved Shooting incidents. EFIT identified numerous issues regarding these cases. Specifically, during this most recent quarter, EFIT observed and/or discovered numerous issues with the way [the Internal Affairs Force Division] is handling Officer Involves Shooting investigations.
IAFD Detective are assigned varying numbers of active Use of Force investigations. This is an issue that EFIT has raised numerous times. In addition, EFIT recently has been made aware that certain IAFD Supervisors may be requesting Detectives to “sit on” completed investigations so not to make others in IAFD “make look bad.” This conduct is inexcusable if EFIT is to complete its Court ordered mandate.”
CONCERNS TO DATE
“The most troubling concerns of EFIT continue to be with the Internal Affairs Force Division supervisors and the sustainability of Internal Affairs Force Division recruitment. EFIT has serious concerns with the manner in which Internal Affairs Force Division first line supervisors are handling daily supervision of the Detectives in the Division. EFIT believes that this is clearly a first line supervisory issue that, if left uncorrected, will continue to render investigations out of compliance with the Process Narrative. (Page 24 of EFIT report.)
EFIT observed improvement when the Internal Affairs Force Division Detective respond to the scene of a Use Of Force when conducting a thorough investigation and are now finally collecting the proper documentation. However, a nationally accepted standard investigative technique and requirement of the Process Narrative is that within three business days of the Use of Force, the Internal Affairs Force Division Supervisor and Internal Affairs Force Division detective along with EFITs input, must develop an Investigative Plan.
These investigative plans are not only best practices throughout the country, they insure proper first line supervision of Detectives enabling the supervisors to know the case and status, and guiding the Detectives through the Use of Force investigations along with immediate problem solving. An added benefit to the first line supervisor is that, once the case is presented for review, they already know the case and can conduct their review in an expedient manner. (Page 25 of EFIT report.)
On March 17, 2022, after months of the EFIT Executive Team offering assistance to the Internal Affairs Force Division to address consistent violations of the Process Narrative without response, EFIT Administrators Neier and Hurlock provided training to all Internal Affairs Force Division Supervisors and Internal Affairs Force Division Command Staff as to how to compile a sufficient investigative plan.
Approximately a month after providing the investigative plan training, 29 current Use of Force of investigative plans were reviewed by the EFIT Executive Team and the team found:
A. 13.79 % – Were not filed in [in the approved format];
B. . 37.93% – Investigative plan was deemed insufficient by EFIT; and
C. 62.06 % – Failure to conduct follow-up weekly meetings and/or failure to update Investigative Plans … (Page 26)
The aforementioned concerns, will undoubtably take the UOF investigations, no matter what the outcome of APD policy decisions, out of compliance with the Process Narrative. This will have the attendant consequence of prolonging EFIT’s tenure to fulfill its Court ordered mandate.
… [O]ver the last 9-10 months, supervision at all levels is severely lacking. Indeed, supervisors, at all levels, must take responsibility for compliance. IAFD is making strides with the daily mentoring of EFIT at the Detective levels. However, the Internal Affairs Force Division command must focus on all levels of supervision to ensure that the Internal Affairs Force Division reaches a 95% compliance level as required by the Amended Stipulated Order. At this point, a great deal must be done if IAFD is to ever attain this goal. … . (Page 27 of EFIT Report)
… [T]he EFIT Executive Team noted several instances where EFIT Investigators provided guidance and expertise to Internal Affairs Force Division regarding Officer Involve Shooting investigations, and such guidance was completely ignored by Internal Affairs Force Division personnel. On one such Officer Involve Shooting investigation, the EFIT Executive Team assigned two seasoned EFIT Investigator with extensive homicide and Officer Involved Shooting experience.
At the same time, the EFIT Executive Team suggested that Internal Affairs Force Division Command reassign the Internal Affairs Force Division Supervisor for lack of supervision and the Investigator with no Officer Involve Shooting experience, stating that “she had to learn some time.”
The EFIT Executive Team … suggested that a second Internal Affairs Force Division investigator be assigned with her in an observation compacity, this suggestion was also ignored. [The] Internal Affairs Force Division Command ultimately reassigned the supervision of the UOF investigation. As a result, EFIT essentially assumed primary interview responsibilities for this investigation. Moreover, considerable time was unnecessarily expended as the Investigator missed several deadlines and submitted extra material after the report was issued late.
While EFIT is limited in directing the Internal Affairs Force Division, EFIT reserves the right under the Stipulated Order … [and] the Amended Stipulated Order … to complete investigations and supervisory/command review if “believes that deficiencies in the tactics or work product of Internal Affairs Force Division personnel assigned to the investigation is likely to prevent the investigation from being completed within the deadlines provided for in the CASA, APD policy, and the CBA.”
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 88.01 days.
EFIT believes that with proper supervision by IAFD these investigation and review timelines will decrease. EFIT is concerned that the timely completion of investigations will cease upon transfer back to IAFD for the reasons articulated thus far throughout this report.” (Page 29 of report.)
ALBUQUERQUE POLICE OFFICERS ASSOCIATION
“EFIT reported on the prior actions of the APOA where the union’s representatives interrupted interviews in clear contravention of Collective Bargaining Agreement (“CBA”). Since EFIT’s inception and after the initial meetings with the APOA, EFIT is not experiencing the number of issues originally observed. However, on occasion these issues unfortunately occur with representatives interrupting interviews or acting in an unprofessional manner.
… . ”
“EFIT identified certain issues regarding the City and its legal department. These issues include but are not limited to:
1. the ability to secure the contracts and funding for the continuation of EFIT’s current contract and the EFIT backlog team;
2. issuing opinion letters regarding the interpretation of certain labor agreements; and
3. clarification of the legal protocols concerning OIS events.”
“Sustainability of trained IAFD Detectives/Investigators … continue to be one of the EFIT Executive Team’s main concern related to the eventual transfer of responsibility from EFIT to APD for conducting full investigations of Level 2 and Level 3 Use of Force as individual IAFD Detectives and Supervisors meet the qualifications identified in … the Amended Stipulated Order. …
The APOA contract enables sworn personnel to “bid” based in part with seniority to various Divisions. EFIT witnessed the lack of sworn personnel wanting to transfer into the Internal Affairs Force Division requiring APD to assign the bottom of the bid list to the Internal Affairs Force Division to comply with the staffing levels of the Amended Stipulated Order.
At present little is done to keep sworn personnel in the Internal Affairs Force Division. This is especially so when promotions, requests for transfer of senior sworn personnel occur and a bid is announced. The loss of these trained personnel can be devastating.
It is anticipated that by August 2022, approximately 40% of the sworn personnel that are in the transition process will no longer be assigned to the Internal Affairs Force Division. With EFIT’s concern, APD is committed to over staffing the civilians in the Internal Affairs Force Division bringing the Division to a level of 31 from the current numbers. We commend APD in that regard however a well-functioning Internal Affairs Division needs both sworn and civilian personnel.”(Page 32 of EFIT Report.)
MINIMAL CHANGES TO POLICE UNION CONTRACT AGGRAVATE INTERNAL AFFAIRS FORCE DIVISION STAFFING
“While the City has made changes regarding incentives for the Internal Affairs Force Division personnel, EFIT believes more needs to be done. While EFIT anticipated that this would be addressed further during the recent collective bargaining agreement negotiation process, minimal changes were made in this regard in the contact signed by the City and the APOA on December 30, 2021, by providing the same incentive pay as field Officers receive for staying within the same area command as those staying in IAFD or IAPS.
Pursuant to the police union contract “An officer will receive $1,300.00 for each year served for the entire year in the same Area Command or the IA Division, up to and capped at four years of continuous service or $5,200.00 per year.” …
We commend Chief Medina in providing this incentive to the civilian Investigators, however more incentives are needed to make IAFD a sought-after Division at APD with an environment that has motivated teams and provides the best equipment, training, and promotional opportunities to Officers (Page 33 of of EFIT Report.)
Additionally, a recommendation both civilian Investigators and Detectives be required to reimburse the City for training costs if they choose to leave the Internal Affairs Force Division within a proscribed period of time to be determined. The training and mentoring are a substantial cost via EFIT, and other external sources paid by the City.
The five new civilian Investigators that APD hired are continuing their onboarding and started responding to on-scene UOF incidents the end of April 29, 2022.
While the Internal Affairs Force Division is responding within one hour as required by the Amended Stipulated Order, namely, within 42.43 minutes, its average response time is longer than EFIT’s average response time which is 28.17 minutes. It is also longer than the previous the new civilian training time of 30.55 minutes.
The assigned Internal Affairs Force Division Detective is required to pick up trainees on their way to a callout. This difference in time is due to the lack of assigned vehicles for trainees as a potential cause for this newfound delay. This has the attendant consequence of increasing the amount of time an Officer who utilized force must remain on scene.
The EFIT Executive Team conducted interviews for the Backlog Force Case Investigations Team (“EFIT 2”) 31 and are currently waiting for the City to execute and fund the contract to start the onboarding process and commence the investigations of 667 Backlog Force Cases.”
FUNDING FOR DEPARTMENT OF JUSTICE COMPLIANCE
On May 16, the Albuquerque City Council voted 7 to 2 to approve the 2022-2023 city budget. The overall budget approved by the Albuquerque City council is for $1.4 Billion and with $857 million in general fund Appropriations. The budget approved by the council was increased by 20% over the current year’s budget which ends June 10, 2022.
The Albuquerque Police Department (APD) continues to be the largest city budget out of 27 departments. The fiscal year 2023 approved General Fund budget is $255.4 million, which represents an increase of 14.7% or $32.8 million above the fiscal year 2022 level. The approved General Fund civilian count is 665 and sworn count is 1,100 for a total of 1,765 full-time positions.
The Fiscal Year 2023 budget contains a line-item budget of $22,094,000 for the Office of the Superintendent of Police Reform. At the end of December, Superintendent of Police Reform Sylvester Stanly “retired” after a mere 8 months on the job and a national search is being conducted to find a replacement. The city is advertising the position with pay to be $150,000 to $180,000 depending upon experience.
Included in the 2022-2023 budget is funding of $1.6 million for the Federal Court Appointed Independent Monitor assigned to audit APD’s progress in implementing the Court Approve settlement agreement. There is also an increase in one-time funding of $2.6 million for the Use of Force Contract, which is funding for 24 outside investigators hired on contract and assigned to the External Use of Force Investigation Team (EFIT) which investigates police use of force cases.
The EFIT has now been assigned with the task of the investigation of a backlog 660 sworn police use of force cases that APD was highly criticized by the Federal Monitor for its failure.
In fiscal year 2022, 63 full-time civilian positions were added at a total cost of $4.9 million including benefits and reduction of $134 thousand in contractual services for a net cost of $4.7 million to support the daily operations and/or compliance with the Court Approved Settlement Agreement (CASA).
The fiscal year 2023 proposed budget includes an additional 17 fulltime positions at a total cost of $1.4 million including benefits for 9 full-time positions for the internal affairs department, two victim advocates, three violent crime analysts, one investigative liaison to assist in non-critical tasks for homicide detectives, one fiscal program manager and one purchasing coordinator to support the daily operations of the fiscal department.
15TH FEDERAL MONITOR’S REPORT ON APD REFORM COMPLIANCE
On May 11, Federal Court Appointed Independent Monitor James Ginger filed his 15th Report on the Compliance Levels of the Albuquerque Police Department (APD) and the City of Albuquerque with Requirements of the Court-Approved Settlement Agreement. The 15th Federal Monitors report is a 332 page report that covers the 6 month time frame of August, 2021 to January, 2022. The link to review the entire report is here:
The Federal Monitor reported that as of the end of the IMR-15 reporting period, APD’s compliance levels are as follows:
Primary Compliance: 100%
Secondary Compliance: 99%
Operational Compliance: 70%
These are the highest compliance level numbers since the Court Approved Settlement agreement was entered into in 2014. The 15th Federal Monitors report is also a dramatic reversal from the past 3 monitor reports that were highly critical of the Keller Administration and the Albuquerque Police Department.
The Federal Monitor Ginger said that the quality of writing and accuracy of investigations of police use of force cases has improved greatly since the creation of the External Force Investigation Team which has streamlined reviews of use of force and investigations by upper-level staff.
The Federal Monitor said this in his 15th report about EFIT:
“… optimism should be tempered by recognition of administrative and cultural obstacles that persist. … Eventually, EFIT will pass oversight responsibilities back to APD, which will test APD’s ability to sustain the obvious progress made with day-to-day external oversight.”
The link to quoted news source material is here:
APD CHIEF HAROLD MEDINA’S REACTION TO 15TH REPORT
APD Police Chief Medina was quick to react and say it was “great news” and to take credit for the latest improvements in APD’s compliance levels as mandated by the Court Approved Settlement Agreement. Medina attributed the progress in compliance in the reporting period to new leadership at the training academy and in other high-level positions.
Chief Harold Medina said APD’s goal is for the department to be in full compliance with the Court Approved Settlement Agreement in 2 years. Medina said this about the 2 year goal:
“We may not meet that goal, and we could get criticized later that we didn’t meet our goal. But we’re going to set the goal … . We’re going to believe in ourselves and we’re going to try our best. If, 2 years from now, we recognize we need one more period, well, you know what, it’s a whole lot better than anybody else has done.”
COMMENTARY AND ANALYSIS
This is what you call APD taking two major steps forward and two major steps backwards in APD’S continuing 7 year saga to come into compliance with the Court Approved Settlement Agreement (CASA) and implementation of the 271 mandated reforms to eliminate APS’ culture of aggression found by the Department of Justice in 2014. The two steps forward are the increases in the two compliance levels of the settlement. The two steps backwards are 3,674 Use of Force Incidents Reported and 44.54% of Use of Force Investigations found to be out of compliance.
APD took two steps forward when the Federal Monitor reported that APD reached its highest compliance levels since the Court Approved Settlement agreement was entered into in 2014. The Federal Monitor tempered his findings when he wrote in his 15th Monitor’s Report:
“The weak points of APD’s compliance efforts remain the same as they were in [the previous report]: supervisors and mid-level command personnel continue to be the weak link when it comes to holding officers accountable for their in-field behavior. Until that issue is resolved, further increases in APD’s compliance levels will be difficult to attain.”
APD then took two major steps backwards when the EFIT reported 102 out of the 229, or 44.54% of the APD Use of Force investigations closed by EFIT and the Internal Affairs Force Division were found to be out of compliance when evaluated. EFIT also reported that as of April 22, 2022, EFIT and the Internal Affairs Force Division responded to and/or opened investigations on 3,674 Use of Force incidents. After 7 full years of the settlement, use of force by APD incidents dealing with the public are still problematic.
When the Federal Monitor released his 15th report, APD Police Chief Medina was quick to react and say it was “great news” and to take credit for the latest improvements in APD’s compliance levels. Medina also set the goal for the department to be in full compliance with the Court Approved Settlement Agreement in 2 years.
After over 7 years of implementing the mandating DOJ reforms, and millions spent on training, APD appears to have turned the corner on implementing the 271 mandated reforms. Medina’s goal to attain full compliance within two years commendable but actually means the public needs to brace itself for the DOJ being around for at least 4 more full years.
Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Primary Compliance is now at 100%, Secondary Compliance is now at 99% and Operational Compliance is now 70%. The problem is APD also has a history of improving compliance levels taking major steps forward only for it return to previous lower levels.
REMOVE SERGEANTS AND LIEUTENANTS FROM POLICE UNION
Being optimistic about APD coming into full compliance within 2 to 4 years may be justified given the new compliance levels but not at all realistic given the findings contained in the third External Force Investigation Team Quarterly Report.
The Federal Monitor, and now the EFIT, have found that APD sergeants and lieutenants are failing in the use of force investigations or who are resisting the reforms. In the 15th report, the Federal Monitor said:
“What remains to be done is to focus on APD’s sergeants, lieutenants, and commanders to ensure that APD’s major compliance systems are CASA-congruent and reflect department-established oversight of uses of force, oversight of day-to-day delivery of CASA-compliant services to the communities APD serves, and oversight of the compliance functions with respect to uses of force and day-to-day interactions with the public.”
Police sergeants and lieutenants cannot serve two masters of APD management and union that are in conflict when it comes to the reforms. To achieve compliance, sergeants and lieutenants need to be removed from the police union and made at will employees. The removal will allow APD management to take appropriate measures to ensure the reforms are accomplished and hold those who resist the reforms accountable.