On July 26, Federal District Judge James Browning, who is overseeing the Court Approved Settlement Agreement and the implementations of the police reforms, held an all-day status conference for the formal presentation of the 15th Federal Monitor’s report and to hear from all the parties to provide input on the report and the reforms.
Upwards of 100 people attended the hearing by ZOOM conference. The hearing was a dramatic reversal from previous hearings that have contained acrimony between the parties.
Participants and presenters from the City, officials of the Albuquerque Police Department, the Department of Justice and Amici Stakeholders all expressed optimism during the hearing which was in sharp contrast to previous hearings. It was the first time that some participants expressed the belief that there is an end in sight to the 8-year pending case.
Paul Killebrew, Deputy Chief of the Department of Justice’s Civil Rights Division had this to say:
“What I will say, from our observations of the DOJ team, is that we see that there are champions of reform within the Albuquerque Police Department. I believe that now there are more folks than there have been in the past … We also see that those champions of reform are growing and developing the next generation of leaders at APD. So, those are all promising developments. … But it’s fragile. We need to make sure that these trends continue.”
FEDERAL MONITOR JAMES GINGER
During the July 26 status conference hearing, Federal Monitor James Ginger repeated much of the findings he made in his 15th Federal Monitors report. Ginger confirmed that much progress had been made and said that the “policy product” achieved was a major accomplishment. He told the court that that training had become an “organizational accomplishment” and that there was 100% in policy compliance.
The Federal Monitor’s 15th report was a dramatic reversal from the past 3 monitor’s reports. At the end of the reporting period, APD’s compliance levels are:
100% Primary Compliance
99% Secondary Compliance
70% Operational Compliance
These are the highest compliance level numbers since the Court Approved Settlement Agreement (CASA) 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.
In the Federal Monitors IMR-14 report filed on November 12, 2021, the Federal Monitor reported the 3 compliance levels were as follows:
Primary Compliance: 100 %; (No change from before)
Secondary Compliance: 82 %; (No change from before)
Operational Compliance: 62 % (An increase 3% points from before)
When APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains compliance for 2 consecutive years, the case can be dismissed.
Operational Compliance is the hardest compliance level to achieve. Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.
EDITOR’S NOTE: The link to a related blog article entitled “Federal Monitor Files 15th Report On APD Reform Compliance; Dramatic Progress Made; Sergeant and Lieutenants Still “Weakest Link” On Holding Officers Accountable; No Superintendent Of Police Reform; Chief Medina Says Wants To Achieve 100% Compliance In Two Years” is here:
Ginger noted that APD needs to continue to focus on Sergeants, Lieutenants and Commanders to ensure compliance that if they fail, they need to be “identified, removed or disciplined.” He said that a critical component still missing or could be improved is “vigilance in discipline”. What Ginger said was needed is “relentless, gentle pressure” on supervisors for sustained compliance. Ginger noted that once APD achieves the 95% compliance in the 3 compliance levels, the two years of subsequent compliance will be the most difficult time for the department.
In at least 4 prior Independent Monitor’s Reports, Federal Monitor James Ginger has been scathing in his assessment of APD going so far as to criticizing the quality of use-of-force investigations by APD and what he called a “counter CASA” attitude among APD Lieutenants and Sergeants where they intentionally resist the reforms.
In the 15th report, Ginger scaled down the criticism but none the less identified lieutenants and sergeants as the weakest link in the reform process. Ginger said this:
“A significant number of CASA paragraphs were addressed by new training at APD during this reporting period. The training tempo has increased significantly, and the quality of training also increased markedly.”
The weak points of APD’s compliance efforts remain the same as they were in IMR-14: 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.”
Federal Monitor James Ginger was severely criticized by the City and APD when he issued his 14th Report that what highly critical of APD, so much so that the City and APD expressed the opinion that he should be replaced. During the July hearing on the 15th report, Judge Browning pointedly ask the DOJ, the City and APD officials if they were now satisfied with Ginger’s performance, and both said yes. DOJ Attorney Paul Killebrew for his part said that Ginger was performing well and that he has given “good advice” especially on the need for close supervision.
EFIT TEAM MAJOR TOPIC OF DISCUSSION
During the July 26 status conference, the External Force Investigation Team (EFIT) was a major topic of discussion. It was revealed that in December 2020 APD Internal Affairs Force Division unilaterally stopped investigating new use of force cases by APD officers. The work stoppage created a backlog of 667 cases where, even if an officer was found to have violated policy, discipline was not possible.
Things became so bad that the Department of Justice placed the city on notice that it was seriously considering filing a Motion for Contempt of Court to seek sanctions against the City for intentional noncompliance with the CASA. Other stakeholders in the case became enraged over the backlog that they demanded that the Federal Court intervene and order a Special Master be appointed to take over APD.
It was 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.”
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).
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 its Use of Force policies.
During the July 26 hearing, the Associate Federal Monitor Toms revealed that no new cases have been added to the backlog and all cases have been completed within the required deadlines. A pilot project has been initiated to lower force review and use of force complaints.
It was announced that EFIT has assumed responsibility to investigating all 667 cases in the backlog. Of 20 cases that have been investigated so far, all were found to be within policy, according to EFIT’s administrator.
Jared Hager with the Force Investigations said the EFIT team is above the staffing levels as was originally agreed to and it is staffed with 28 investigators and not 25. Hager said the backlog of 667 has a “dragging effect” on compliance levels for use of force investigations. It was also reported that “force deployments” by APD have been reduced and TAZER deployment levels have been improved.
During the July 26 hearing, Judge Browning asked if the EFIT team should be made permanent. EFIT has a two-year contract and concerns were raised for what happens after the contract is completed. DOJ attorneys, city administration, the monitoring team and interested community groups essentially agreed that EFIT was having a beneficial effect on APD. Notwithstanding, they stressed that EFIT is supposed to be a temporary solution.
DOJ Attorney Paul Killebrew did say making EFIT permanent and using out of state experts may be too costly. However, he did say if the city decided to keep it, the DOJ would want to talk about it.
SEARCH FOR SUPERINTENDENT OF POLICE REFORM CONTINUES
During the July 26 hearing, numerous speakers, including the amici groups and Judge Browning raised questions about the position of “Superintendent of Police Reform”. Judge Browning asked the question if the position was really needed in that the position is not required by the CASA.
It was on March 9, 2021 that Mayor Tim Keller announced the creation of the newly created position who would be in charge of the police academy, internal affairs including discipline and use of force review. Keller also announced the appointment Sylvester Stanley as the “Superintendent of Police Reform”. Stanley retired on December 1, a mere 9 months after his appointment with APD Deputy Chief Eric Garcia was appointed “interim” Superintendent of Police Reform”.
On Monday, April 25, Mayor Tim Keller announced that he had nominated La Tesha Watson, Ph.D., as the new Superintendent of Police Reform. Dr. LaTesha Watson has 25 years of policing experience who most recently served as the director of the Office of Public Safety Accountability for Sacramento having served in that position since April, 2020. Prior to that she was the chief of the Henderson Police Department in Nevada for 16 months.
On May 3, one week after the Dr. LaTesha Watson appointment was announced, the City issued a press release announcing it was not moving forward with her nomination of for the position and that the hiring process will continue. The reasons given by the City for not going forward with the Watson hire were not clearly delineated by the city leading to much speculation. In a press release, the city said that after a series of in person meetings it was discovered she “brought alternative ideas and views about the path forward on reform, but the candidate and the administration identified key differences in our approach to the role and for continued progress in Albuquerque”.
Attorney Peter Cubra who represents the McClendon Amici group expressed dismay over the city’s reluctance and reasons for not hiring Watson and said by all accounts she was indeed a perfect choice.
Under a line of questioning by Judge Browning, City Attorney Lauren Keefe declined to state why Watson was not hired. She did say Watson was never on the payroll and Mayor Kelller’s reasons for not going forward with the appointment was a personnel matter that was confidential.
Judge Browning did ask “interim” Superintendent of Police Reform Eric Garcia if he has applied to be made permanent to which Garcia replied yes saying he wanted to complete the work he has started on the reforms.
In response to questions during a July 28 news conference, Chief Administrative Officer Lawrence Rael said the city is evaluating the structure of the job and could be changing its function to “provide more long-term sustainability.”
What complicates matters is that for almost a full 6 months, Mayor Tim Keller has not appointed a Superintendent of Police Reform raising questions if the potion is needed or ever was needed.
CITY OFFICIALS SAY “END IN SIGHT” TO CASA
On May 11, when Federal Court Appointed Independent Monitor James Ginger filed 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. 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.”
The links to quoted news sources are here:
https://www.abqjournal.com/2498594/apd-sees-significant-gains-in-reform-effort.html
https://www.kob.com/new-mexico/new-doj-report-shows-progress-for-apd/
During the July 26 Status Conference report, the DOJ attorneys and Independent Federal Monitor Janes Ginger agreed that the two-year goal set by Chief Medina was possible. However, Ginger cautioned that, after the city gets into full compliance, it has to maintain the compliance standing in all 3 compliance levels for 2 years. Ginger said this:
“I hate to throw water on the parade. [Once compliance levels ar achieved]. that, in my experience, has been when things are the toughest … I know APD has put a great deal of effort into this process, they’ve hired a great deal of external talent, which is has made a big difference in this process. But that gentle pressure relentlessly applied is what will carry them over the finish line. And I want everybody to be cognizant of that.”
OTHER HEARING HIGHLIGHTS
Other highlights of the July 26 hearing include the following:
1. Judge Browning asked the City and the DOJ attorneys and others if they were satisfied with the job performance of Dr. James Ginger and his team and all said that they had no objections.
2. Judge Browning asked State Representative and private Attorney Moe Maestas who represents an Amici Group of concerned citizens, raised the issue that it is still very problematic that the management of APD Sergeant and Lieutenants are allowed to be part of the police union and they cannot serve the two masters of union priorities and management priorities. Judge Browning asked if anything really could be done, to which Maestas responded that the legislature enacted a very broad collective bargainin act for public employees and said that it’s an issue between the city and the union. What Maestas failed to point out is that the state statute is clear that management is prohibited from joining government employee unions and that the City’s collective bargaining agreement that allows sergeants and levitants to join the police union likely violates the stat collective bargaining statute.
3. APD Chief Harold Median Medina told Judge Browning there has been a beneficial effect on recruiting and retaining officers since Mayor Keller announced a portion of the CASA would be self-monitored. According to an APD, the department has experienced 23% fewer officer retirements, resignations and terminations so far this year than it had at this time in 2021. Medina said there are now 885 officers on the force.
EDITOR’s NOTE: APD is fully funded for 1,100 sworn police. Four years ago, Mayor Tim Keller announced the goal of 1,200 sworn and for a full 4 years, APD has failed to attain even 1,000 sworn police and 1,200 sworn police has been very elusive even with substantial increases in pay.
4. During a July 27 press conference, APD Chief Medina said that following Mayor Keller’s State of the City, the department started seeing an increase in lateral applicants to the police force almost immediately. Medina said this:
“We know that a lot of these changes do help us with our recruiting efforts…and we’re hoping that we could use this positive momentum to continue to move the department forward.”
5. Medina proclaimed APD has a 97% homicide clearance rate thus far for 2022.
EDITOR’S NOTE: Medina’s claim of 97% clearance rate is highly misleading and represents the murder investigations done for a 6-month period and only involves those murder cases actively being investigated by APD during that time period. The FBI’s method of calculating clearance rate is blunt math dividing the number of crimes that were cleared, no matter which year the crime occurred, by the number of new crimes in the calendar year. Using the FBI method of calculating murder clearance rates, clearing 34 cases out of 184 total cases for 2021 and 2022 is actually an 18.2 % clearance rate, not the 97% Medina is claiming.
6. Medina told Judge Browning that the department is experimenting with changes on the handling investigations into the lowest levels of force. A pilot program in two area commands has taken such investigations out of the hands of field supervisors and assigned trained investigators thereby given relief to other sworn personnel.
7. According to Medina, APD realized that a third of all investigations involve officers not turning on their lapel cameras or downloading videos. As a result APD secured new equipment with technology that automatically starts downloading when an officer is at a city facility.
8. Assistant United State Attorney Elizabeth Martinez reported that the Civilian Police Oversight Board is in a rebuilding process. The turmoil within the Civilian Police Oversight Board and the 6 resignations from the board were noted prompting Judge Browning to ask “Is there really anything to be encouraging about the Citizens Police Oversight Agency?” It was pointed out that the agency has no real authority over APD and that it is powerless over APD and acts in an advisory capacity. However, it was felt there was a definite need for the agency as well as the Community Policing Councils.
The link to quoted news source material is here:
https://www.abqjournal.com/2519826/officials-say-end-in-sight-for-apd-reform-effort.html
AGREEMENT TO SUSPEND 25% OF CASA MONITOTING
In a July 27 news release, the Albuquerque Police announced that the city and the U.S. Department of Justice have agreed to suspend several paragraphs of the Court Approved Settlement Agreement (CASA.) According to APD, the agreement “essentially removes about a quarter of oversight requirements.”
The suspension of oversight requirements will affect several different areas of the department. The city reached an agreement with the DOJ to suspend the monitoring of upwards of 25% of the paragraphs in the CASA. Those paragraphs have all been in operational compliance for more than 5 years. APD and DOJ representatives solidified the partial oversight requirement suspension during a virtual hearing on July 26. The changes will go into effect on August 1 of this year.
Under the stipulated agreement between the City and the DOJ, the city will now self-monitor 62 paragraphs of the CASA. According to a news release, APD said the following areas have maintained operation compliance:
• Establishing and participating in the Multi-Agency Task Force, which investigates shootings and other critical incidents by law enforcement
• Developing policies, training and ways to track deployments for specialized units, including the SWAT team, canine unit and bomb squad, and specialized investigative units
• Providing behavioral health training for cadets, officers and telecommunicators
• Revising the field training program for new officers
• Publishing information on how people can make complaints to the Civilian Police Oversight Agency
• Developing recruitment plans, an objective system for hiring practices and fair practice for promotions
• Offering officer assistance and support, especially for mental health
Mayor Tim Keller had this to say in a press release about the agreement:
“This is a major milestone that reflects our decision last year to take control of a Department of Justice reform process that was backsliding. … After years of officers buried under bureaucracy and weighed down by low morale; we refused to give up on reform or cede control of local police work to federal control. Now, we continue to be committed to real reform, but at a much faster pace; rejecting ideas that are patently bad for crime fighting and we are standing up for truth in the process.”
APD Chief Harold Medina for his part had this to say about the agreement in a press release:
“We pointed out in court today that APD’s progress is here to stay. … We demonstrated that we are committed to the changes made in several key areas, and we no longer need federal oversight. We are making similar progress throughout the department, and we will shift resources to meet the remaining challenges we face.”
At a news conference on July 27, Chief Administrative Officer Lawrence Rael said this:
“There is an end in sight to this reform. … We are now beginning to see that the morale in this department is starting to lift. … That the work that the department has done from every level of the department – from the chief’s office to the rank-and-file officer in the field – that the reform is taking place and taking hold. That’s really important. It’s good for Albuquerque and our community. But it’s especially important for this department to continue to move forward.”
Links to quoted news source materials are here:
https://www.krqe.com/news/albuquerque-metro/apd-will-soon-have-less-federal-oversight/
https://www.abqjournal.com/2519826/officials-say-end-in-sight-for-apd-reform-effort.html
https://papernewslive.com/apd-doj-agree-to-back-off-some-federal-police-reforms/135256/
COMMENTARY AND ANALYSIS
After over 7 years of implementing the mandating DOJ reforms, and millions spent on training, APD appears to have finally turned the corner on implementing the 271 mandated reforms. APD is commended for attaining a 100% Primary Compliance rate and a 99% Secondary Compliance.
Notwithstanding, APD is still struggling mightily with Operational Compliance at 70% compliance. Operational compliance is the single most important compliance level, and the most difficult to achieve, of all 3 and it is where the “rubber hits the road” with respect to the reforms.
Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency. It is achieved when line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.
The problem is that the Federal Monitor has repeatedly found that APD sergeants and lieutenants are resisting the reforms and he did so in the 15th report but with a water down assessment. Amici parties also declined to be highly critical of the police union and declined to be critical as they had done in the past.
This was the case even though a controversy arose and APD actions were again thrust into the limelight when SWAT was dispatched to take into custody a fugitive held up in a home and they discharge a “flash” grenade. The house caught on fire and a 14-year-old boy hiding in the home died of smoke inhalation. Medina has now requested an investigation by the Attorney General on the conduct of those in charge which would include Sergeants and Lieutenants.
REMOVE SERGEANTS AND LIEUTENANTS FROM POLICE UNION
The Federal Monitor has found repeatedly it is APD sergeants and lieutenants who are resisting management’s implementation of the DOJ reforms. Sergeants and lieutenants are where the rubber hits the road when it comes implementation of the 271 reforms.
It is difficult to understand why Federal Court Appointed Monitor James Ginger essentially downplayed and did not come out and say that the Counter CASA effect is still alive and well within APD. What is also difficult to understand is Ginger’s reluctance to tell the court that APD’s sergeants and lieutenants need to be removed from the police union. His dismisses such recommendations as “not my job” yet he complains and knows full well of the obstruction tactics of the union which are not expected to go away after 7 full years.
Sergeants and lieutenants need to be made at will employees and removed from the collective bargaining unit in order to get a real buy in to management’s goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of “Administration Management” and “Union Priorities” that are in conflict when it comes to the CASA reforms. Sergeants and lieutenants are management and need to be removed from the union in order to allow APD management to take appropriate measures to ensure the reforms are accomplished or hold those sergeants and lieutenants who continue to resist the reforms accountable.
APD Chief Medina’s goal for the department to be in full compliance with the Court Approved Settlement Agreement in 2 years is commendable. However, based on 8 years of obstructionist tactics by the APD Police Union and APD’s Sergeants and Lieutenants who are union members, going from 70% to 100% in Operational Compliance is easier said than done given how long APD was stuck at mediocre compliance levels for 8 years.
The city and APD need to remember what Ginger said:
“… 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.”