On February 26, 2021, the United States District Court for the District of New Mexico granted a joint motion filed by the United States Department of Justice (“DOJ”) and the City of Albuquerque (“City”) with the concurrence of the Independent Monitor (“IM”) by entering a Stipulated Order Establishing an External Force Investigation Team (EFIT). The EFIT is an outside team of experts that investigates APD officer involved “Use of Force” cases.
The External Force Investigation Team was created when the Federal Monitor found that APD intentionally did not investigate 667 of use of force cases. A Court Order was agreed to by the city to establish the EFIT and its mission after the DOJ made it know it was prepared to seek contempt of court for willful violation of the Court Approved Settlement Agreement (CASA) and seek sanctions against the city.
HOW EFIT WORKS
EFIT is on call 24/7 and must respond to all call outs within one hour of notification. All Use of Force (“UOF”) investigations must be completed within 60 days with an additional 30-day supervisory review period for a total of 90 days from start to finish. EFIT must conduct joint investigations with APD Internal Affairs Force Division (“IAFD”) of all Level 2 and Level 3 Use of Force incidents. The joint investigations include all Tactical Deployments where Use of Force is utilized. EFIT must also assist APD with training concerning the UOF. The EFIT Executive Team worked with APD IAFD to establish a detailed IA Investigative Process Narrative that governs the response protocols to any Level 2 and 3 UOF cases.
On March 21, 2022, an Amended Stipulated Order Establishing the EFIT was agreed to by the parties. The Amended Stipulated Order modifies the EFIT in two ways:
First it requires the EFIT to investigate all use-of-force incidents occurring between January 1, 2020, through July 16, 2021, that APD did not investigate, in full or in part, in violation of the Court Approved Settlement Agreement (“CASA”)
Second it extends by 24 months, from May 2022 through May 2024, the period during which the City shall continue to engage EFIT to assist IAFD to investigate new Level 2 and Level 3 use-of-force incidents
SECOND EFFIT TEAM CREATED, STAUS OF BACKLOG
Pursuant to an Amended Stipulated Order the City drafted a contract for EFIT to establish a secondary team (“EFIT 2”) to investigate and address a 667 backlog of cases. The EFIT 2 Team is now fully operational and has established an approved methodology and commenced investigating and closing the backlog cases. Following is the status of those cases:
Total Backlog: 667
Cases Assigned to EFIT Investigators: 43
12 UOF Investigations Previously Completed by IAFD Assigned to EFIT: 12
12 UOF Investigations Previously Completed by IAFD Closed by EFIT: 12
EFIT Investigators – UOF Investigations Closed 14
Total Completed: 27
Investigations Pending: 640
External Force Investigation Team Fourth Quarterly Report, page 41.
MAJOR HIGHLIGHTS OF EFIT FOURTH QUARTERLY REPORT
On August 23, the External Force Investigation Team (EFIT’S) filed its fourth quarterly report for the time period of April 22, 2022, August 5, 2022. The document is 45 pages long with the link to the document here:
EDITOR’S NOTE: This blog article concentrates on the statistical information contained in the report and does not report on the management issues and decisions made.
The External Force Investigation Team fourth quarterly report provides a table outlining the number of Use of Force cases investigated, time taken to complete the investigation, including supervisory review, and the percentages where the investigation were found out of compliance. Following is the data gleaned from the table for each time period:
From October 1, 2021 to Dec 31, 2021 there were 111 use of force cases taking an average of 55.35 days to investigate, 24.94 days for supervisor review, for a total of 88.37 days to investigate and close, with 27.02% found out of compliance and 9.90% out of APD Use of Force Policy.
From January 1, 2022 to March 31, 20222022 there were 103 use of force cases taking an average of 53.63 days to investigate, 18.71 days for supervisor review, for a total of 87.88 days to investigate and close with 60.19% found out of compliance and 7.76% out of APD Use of Force Policy.
From April 1, 2022 to June 30, 2022 there were 103 use of force cases taking 53.03 days to investigate, 16.02 days for supervisor review, for a total of an average of 85.39 days to investigate and close with 22.33% out of compliance and 5.82% out of APD Use of Force Policy.
From July 1, 2022, to August 18, 2022 there were 55 use of force cases closed taking an average of 51.13 days to investigate, 18.26 days for supervisor review, for a total of 86.67 days to investigate and close with 14.54% out of compliance and 5.54% out of APD Use of Force Policy.
External Force Investigation Team Fourth Quarterly Report, page 21.
During the quarterly reporting period of April 22, 2022 to August 5, 2022, APD experienced 4 Officer Involved Shooting incidents, 2 accidental discharges in addition to 15 tactical activations, 3 use of K9 , 22 use of a tazer, and 12 involving an impact weapon. EFIT previously identified numerous issues regarding these cases. Specifically, during this most recent quarter, EFIT observed and/or discovered that IAFD made a noticeable improvement with the way IAFD is handling Officer Involved Shootings and other complex investigations.
As of 4th quarterly report, 26 out of the 361 or 7.20% of the Use of Force investigations closed by the External Force Investigation Team (EFIT) and the Internal Affairs Force Division (IAFD) were found to be not within the APD Use of Force policies. This is a reduction from the 9.17% reported in the previous quarterly report.
Most significantly, 121 out of the 361 or 33.51% of the UOF investigations closed by EFIT/IAFD were out of compliance when evaluated against the Process Narrative utilized to assess investigations. This is a reduction from 44.45% reported in the previous quarterly report. While this is still an obvious concern for IAFD EFIT, the EFIT was very encouraged by the approximately 11-point reduction.
As August 5, 2022, EFIT/IAFD responded to, and are investigating, a total of 502 Use of Force incidents. These investigations were completed on an average of 53.84 days. In addition, 361 Use of Force investigations were closed, 26 averaging a total of 87.10 days for closure. The 502 UOF incidents to included 15 Officer Involved Shootings (“OIS”) and 3 referrals to the Multi-Agency Task Force (“MATF”) with 9 for potential criminal violations. EFIT/IAFD completed 361 investigations all within the 90-day time period outlined in the Amended Stipulated Order.
Although there has been improvement with the time in completing the investigations, EFIT remained concerned that these averages are too close to the maximum range and remain too high if EFIT is to complete its Court ordered mandate. Supervisor reviews remain at an average of 20.81 days. Of the UOF cases closed (361), 26 UOF cases were out of APD Policy, or 7.20%, 28 and 121 of the 361 investigations or 33.51% failed to comply with the Process Narrative.
Since its inception, EFIT assumed 13 UOF investigations, but only 2 during the current reporting period as those investigations became close to violating the stipulated timelines but assumed only one case during this reporting period.
The EFIT noted and reported that it witnessed a marked improvement in the workings of IAFD. According to the EFIT, while there remains a great deal of work to be done, the tone and tenor within IAFD has improved substantially in this reporting period.
The EFIT also noted previous concerns regarding supervision and sustainability. It appears that APD is taking this issue seriously and EFIT welcomed the addition of Commander Scott Norris to head the IAFD Department. According to the report, the EFIT is working closely with Commander Norris.
The EFIT reported that the intention of the report is to provide the Court with a better understanding of the successes, recommendations and the failures of APD, particularly IAFD. To quote the report “It is EFIT’s goal to teach, mentor and professionalize IAFD so that when EFIT’s assignment is completed, EFIT leaves the City with a sustainable division that investigates UOF incidents in a timely and professional manner.”
As of August 5, 2022, the Internal Affairs Force Division (IAFD) must be staffed with 25 Detectives/Investigators. Currently IAFD has 15 civilian Investigators and 14 Detectives. However, it is anticipated that by the end of the current year, IAFD may lose several of the most experienced personnel due to retirements, promotions, and Officers requesting transfers to field divisions and specialized field units.
The APD Chief authorized the staffing of IAFD to be increased in anticipation of the expected loss of an additional 7 sworn personnel. While these staffing levels must be maintained under the Amended Stipulated Court Order, EFIT continue to express concern that these numbers tend to fluctuate and retention of both sworn and civilian personnel is a constant concern as IAFD moves extremely close to falling below required staffing levels.
As of August 5, 2022, IAFD is currently staffed as follows:
11 Sworn fully trained.
2 Sworn on leave (counted in the 11 above)
2 Sworn in PRU31 (not counted of the 11 above)
1 Sworn Vacancy
10 Civilian Investigators fully trained
1 Civilian Investigator in training
1 Civilian Investigator on leave
1 Civilian working on FRB preparation work (not counted in the 10 above);
1 PRU Sergeant.
2 Acting Sergeants.
1 Acting Lieutenant
2 Deputy Commanders
2 Acting Deputy Commanders.
4 Support personnel.
The IAFD was authorized to hire 7 civilian investigators. 3 have a hire date and one is pending a hire date; thus, 4 are pending.
External Force Investigation Team Fourth Quarterly Report, page 33.
COURT HEARING SCHEDULED
A Federal Court “Status Conference” hearing on the fourth External Force Investigation Team report is scheduled for Wednesday, October 5, 2022, beginning at 1:30 pm in the Vermejo Courtroom, on the fourth floor of the Federal Courthouse in downtown Albuquerque, 333 Lomas Blvd., NW, between 3rd and 4th Streets, NW. The hearing is open to the public. You can also attend the status conference by Zoom Video by sending an email with your full name and email address to Ms. Annamarie Maresca, the Paralegal Specialist who works with the DOJ team on this case, at Annamarie.Maresca@usdoj.gov by noon on Monday, October 3, 2022.
EFIT’s next quarterly report will be filed with the Court on November 16, 2022. It will to will contain an analysis of issues based on the findings of both APD and the Use of Force compliance unit and case investigative compliance.
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:
DEPARTMENT OF JUSTICE AGREES TO ALLOW APD TO SELF MONITOR
On September 15, 2022 it was reported that the Albuquerque Police Department and the U.S. Department of Justice (DOJ) have formalized and agreement that will allow APD to oversee police reform mandated on their own. The DOJ has been monitoring those efforts since 2014 after a DOJ investigation found a pattern of excessive force and deadly force and a “culture of aggression” within APD, especially when dealing with the mentally ill. Over the summer, the City and the DOJ had reached the agreement, but APD needed time for formulate and implementation plan of how it would work. The partis filed the joint notice and a 47-page plan in federal court on September 15.
The Federal Court Approved Settlement (CASA) has 276 paragraphs, each detailing different areas and mandating reforms. The APD and the DOJ formalized self-reporting agreement covers 61 of the 277 total paragraphs in the CASA or nearly a quarter of the oversight requirements. Federal Independent Monitor James Ginger will continue to assess some aspects of APD’s progress, but many aspects will now be under APD’s own oversight, essentially loosening the grip the U.S. Department of Justice
According to the Federal Monitor’s reports, APD has maintained compliance in several areas for the last few years. APD will now assume self-monitoring in the following areas of the Court Approved Settlement Agreement (CASA):
- The Multi-Agency Task Force used to investigate police shootings
- Specialized Units like the SWAT team
- The Behavioral Sciences Section. This will involve APD coordinating with the Mental Health Response Advisory Committee to develop crisis intervention training. APD will look at the current training plans for crisis intervention procedures and report meeting minutes with the Mental Health Response Advisory Committee.
- The Field Training and Evaluation Program which includes recruiting, hiring and promotions
- Public Information process on Civilian Complaints
- Staffing, including a required staffing study
- Recruitment and Hiring
- Performance Evaluations and Promotions
- Officer Assistance and Support
Some of the measures are considered “quantitative in nature” and can be measured in numbers. Other measures of compliance are “qualitative” such as APD recruits having a way to provide feedback during field training with APD relying on recruit critiques to assess progress.
REACTION TO SELF MONITORING AGREEMENT
The City and the DOJ were quick to react to the agreement.
Mayor Tim Keller had this to say:
“This agreement marks a huge milestone for our police department and our city and should be noticed as a significant accomplishment in the reform process. … As this process has not been easy for our officers, we did not give up on getting through the challenges and have done so in a way that is sustainable for our police department and its dedicated staff.”
U.S. Attorney Alexander Uballez for the District of New Mexico also commended the work APD has done and said this
“Successful self-assessment is the cornerstone of true reform, and the Albuquerque community should expect no less … Together, we will realize the goals set out by this community, through mutual agreement, seven years ago.”
APD Chief Harold Medina for his part had this to say:
“I am pleased we have finally found a light at the end of the tunnel in the reform process. … We overcame many challenges to get to this point. I appreciate the acknowledgement from the DOJ of our progress and our commitment to reform at APD.”
Links to quoted news sources are here:
What’s next for Albuquerque police after DOJ ‘loosens grip’ on oversight? (krqe.com)
COMMENTARY AND ANALYSIS
It is disappointing that only 43 of the 667 backlog of cases have been resolved with 640 remaining. With the passage of time, those investigations become far more difficult, and no disciplinary action can be taken leading to the questioning if anything substantive will actually be accomplished with APD and its reform efforts other than carrying out a demand that the DOJ has made?
Notwithstanding, significant progress has been reported in the EFIT Fourth Quarterly report. With APD assuming self-monitoring in one third of the court order reforms, and 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 Chief Harold Medina’s goal to attain full compliance within two years commendable, but in reality, 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.