On November 16, 2022, the External Force Investigation Team (EFIT) filed its 4th quarterly report with Federal District Court Judge James Browning who is overseeing the federal Court Approved Settlement Agreement (CASA) mandating reforms of the Albuquerque Police Department (APD). The EFIT 5th quarterly report covers the time period of August 5, 2022 to October 27, 2022.
The EFIT was created on February 26, 2021 by an agreed court order after 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 after the Department of Justice 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.
This blog article is a summary of the EFIT’s 4th main quarterly report accomplishments and statistics. It deletes all personnel management decisions, discussions and meetings in the report between the EFIT administrators and APD, the police union and city attorney. The article for that reason should not to be considered exhaustive. You can read the entire 131 page EFIT 5th quarterly report here:
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
CLASSIFACTIONS OF USE OF FORCE
The EFIT Executive Team worked with APD to establish a detailed Process Narrative that governs the response protocols to Level 2 and 3 Use Of Force cases. EFIT and APD continued to review this document to ensure that it is serving the interests of the assignment and has made modifications, as necessary.
Classifications of Force Levels that EFIT works within are enumerated in the APD Use Of Force Policies and a brief description are [as follows]:
Level 1 is force that is likely to cause only transitory pain, disorientation, or discomfort during its application as a means of gaining compliance. This includes techniques which are not reasonably expected to cause injury, do not result in actual injury, and are not likely to result in a complaint of injury (i.e., pain compliance techniques and resisted handcuffing). Pointing a firearm, beanbag shotgun, or 40-millimeter launcher at a subject, or using an Electronic Control Weapon (ECW) to “paint” a subject with the laser sight, as a show of force are reportable as Level 1 force. Level 1 force does not include interaction meant to guide, assist, or control a subject who is offering minimal resistance.
Level 2 is force that causes injury, could reasonably be expected to cause injury, or results in a complaint of injury. Level 2 force includes: use of an Electronic Control Weapon (ECW), including where an ECW is fired at a subject but misses; use of a beanbag shotgun or 40 millimeter launcher, including where it is fired at a subject but misses; OC Spray application; empty hand techniques (i.e., strikes, kicks, takedowns, distraction techniques, or leg sweeps); and strikes with weapons, except strikes to the head, neck, or throat, which would be considered a Level 3 use of force.
Level 3 is force that results in, or could reasonably result in, serious physical injury, hospitalization, or death. Level 3 force includes: all lethal force; critical firearms discharges; all head, neck, and throat strikes with an object; neck holds; canine bites; three or more uses of an ECW on an individual during a single interaction regardless of mode or duration or an ECW application for longer than 15 seconds, whether continuous or consecutive; four or more strikes with a baton; any Level 2 use of force, strike, blow, kick, ECW application, or similar use of force against a handcuffed subject; and uses of force resulting in a loss of consciousness.
Closed UOF cases are presented to the Force Review Board (“FRB”). All Level 3 cases, tactical deployments, OIS, and 10 % of Level 2 cases are presented at FRB. Initially, EFIT had no role in the Force Review Board process other than as an observer. However, as the cases that EFIT jointly investigated with Internal Affairs Force Division are now at the FRB level, and the EFIT managers Darryl S. Neier and Mr. Hurlock believed that EFIT should have a more active role in the FRB. To that end, Mr. Neier and Mr. Hurlock met with APD, DOJ and the IM team to discuss the parameters for such participation to occur
5th QUARTERLY REPORT STAUS OF BACKLOG OF CASES
Following is the EFIT backlog investigations as of November 14, 2022:
Total Backlog: 667
Cases Assigned to EFIT Investigators: 82
Use Of Force Investigations Previously Completed by IAFD Assigned to EFIT: 12
Sub-Total: 94
Use Of Force Investigations Previously Completed by IAFD Closed by EFIT: 12
Use Of Force Investigations Closed: 43
Total Completed: 55
Investigations Pending: 612
External Force Investigation Team Fourth Quarterly Report, page 46:
As of as of November 15, 2022, EFIT’s findings contained in the report are that 47 of the 55 completed Use of Force Investigations, or 85.45%, of backlog cases investigated by EFIT are within APD guidelines and SOPs. The breakdown of those 55 cases by level of force is reported as follows:
Level 1 Force: 1 case
Level 2 Force: 41 cases
Level 3 Force: 6 cases
Level 3 Force (Officer Involved Shooting): 7 cases
Total cases: 55
Page 45, file:///C:/Users/HP/Downloads/960-221116%20EFIT%20QR-5.pdf
Following are the number “Force Level” cases found out of policy:
Officer Involved Shooting (OIS) cases: 7, Out of Policy OIS cases: 2
Intermediate Weapon System cases: 5, Out of Policy cases: 2
Empty Hand Takedown cases: 35, Out of Policy 1
Empty Hand Control cases: 6, Out of policy 1
Other cases: 2, Out of Policy -0-
Total cases: 55
Page: 46, 4th Quarterly Report: April 22, 2022-Aug. 5, 2022
EFIT 5th QUARTERLY REPORT EXECUTIVE SUMMARY
Following is the edited Executive Summary contained in the EFIT 5th Quarterly Report containing statistics gleaned from the entire report:
“32 out of the 461 [or 6.94%], Use of Force Investigations closed by the External Force Investigation Team and Internal Affairs Force Division (EFIT/IAFD) were found not within the APD UOF policies. This is a reduction from the 7.2% reported in the previous quarterly report.
Most significantly, 138 out of the 461 [or 29.93%] of the Use Of Force investigations closed by EFIT and the Internal Affairs Division (IAFD)were out of compliance when evaluated against the Process Narrative … utilized to assess investigations. … [this is a reduction from 33.51% reported in the previous quarterly report].
While all the time frames negotiated by the City and the Department of Justice Use Of Force Investigations in the aforementioned Orders remain an obvious concern for Internal Affairs Force Division, EFIT is very encouraged by the approximately 11-point reduction.
EFIT’s next quarterly report, which is to be filed with the Court on February 23, 2023, will continue to contain an analysis of these issues based on the findings of both APD Use Of Force compliance and case investigative compliance.
While this quarterly report addresses EFIT’s qualitative findings up to and including, November 15, 2022, EFIT’s statistical findings are as of October 27, 2022. However, the report provides a comprehensive review of EFIT’s experience since inception.
Since July 16, 2021, and as October 27, 2022, EFIT [and the Internal Affairs Force Division] responded to, and are investigating and/or monitoring a total of 6, 925 Use Of Force incidents. These investigations are completed on an average of 53.86 days.
The 6,195 Use Of Force incidents includes 20 Officer Involved Shootings (“OIS”) and cumulatively made 3 referrals to the Multi-Agency Task Force (“MATF”) for potential criminal violations [with] … no referrals were made during this quarter.
In addition, 461 Use Of Force investigations were closed ,26 averaging a total of 86.8427 days for closure.
Supervisor reviews remain at an average of 20.08 days.
Of the 461 UOF cases closed, 32 UOF cases were out of APD Policy (6.94%)
28 and 138 of the 461 investigations (29.93%) failed to comply with the Process Narrative.
During this quarterly reporting period, APD experienced:
8 Officer Involved Shooting (OIS) incidents
-0- accidental discharges
8 tactical activations
3 use of K9
9 use of an Electronic Control Weapon (4 involving an impact weapon).
EFIT previously identified numerous issues regarding these cases. Specifically, during this most recent quarter, EFIT observed and/or discovered that Internal Affairs Force Division (IAFD) made a noticeable improvement with IAFD’s handling Officer Involved Shootings and other complex investigations.
EFIT/IAFD completed 461 investigations all within the 90-day time period outlined in the Amended Stipulated Order.
Since inception, EFIT assumed 13 Use Of Force investigations …. .
During this reporting period EFIT did not assume any UOF investigations from IAFD, a striking improvement from prior quarters.
EFIT … reported that it continues to witness a marked improvement in the [Internal Affairs Force Division (IAFD)]. Indeed, while there remains a great deal of work to be done, the atmosphere within IAFD improved substantially in this reporting period, the details of which are detailed below.
The EFIT Executive Team … reported that, pursuant to the established protocols it is transitioning Internal Affairs Force Division Detective/Investigators to conduct interviews without EFIT’s direct supervision. As a result, 4 graduated the transition process and are conducting Use Of Force Investigations with minimal EFIT oversite.
Currently 12 Internal Affairs Force Division personnel are progressing through the Phases. EFIT also noted previous concerns regarding supervision and sustainability, which are [included in the report]. It appears that APD is taking these issues seriously and is working closely with EFIT to address them. EFIT works closely with Internal Affairs Force Division Commander Norris to address these and other issues on a daily basis.
It is EFIT’s intention that this report provide the Court with a better understanding of the successes, recommendations and the failures of APD, particularly [the Internal Affairs Force Division].
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, thorough and professional manner.”
PERSONNEL LEVELS
As of October 27, 2022, the Internal Affairs Force Division is currently staffed as follows:
11 Sworn fully trained;
4 Sworn on leave (counted in the 11 above);
3 Sworn Vacancies;
10 Civilian Investigators fully trained;
6 Civilian Investigator in training;
4 Sergeants;
1 Acting Sergeants;
2 Lieutenants;
2 Deputy Commanders;
2 Acting Deputy Commanders; and
4 Support personnel.
The Internal Affairs Force Divison is authorized to hire ” additional civilian investigators and this process of interviewing candidates will commence after the filing of this report.
APD COURT APPROVED SETTLEMENT AGREEMENT
On November 9, 2022 Federal Court Appointed Independent Monitor James Ginger filed his 16th 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 16th 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 16th Federal Monitors report is here:
https://www.cabq.gov/police/documents/959-221109-imr-16.pdf
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. Originally, APD was to have come into compliance within 4 years and the case was to be dismissed in 2020.
COMPLIANCE LEVELS
The 3 compliance levels can be explained as follows:
PRIMARY COMPLIANCE
Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.
SECONDARY COMPLIANCE
Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.
OPERATIONAL COMPLIANCE
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.
16th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS
The Federal Monitor reported that as of the end of the IMR-16 reporting period, APD’s compliance levels are as follows:
Primary Compliance: 100% (No change)
Secondary Compliance: 99% (No change)
Operational Compliance: 80%. (10% increase from 70%)
15th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS
On May 11, 2022, Federal Court Appointed Independent Monitor filed his 15th Report on the Compliance Levels. The 15th Federal Monitors report covers the 6 month time frame of August, 2021 to January, 2022. The link to review the entire report is here:
https://www.cabq.gov/police/documents/910-220511-imr-15.pdf
APD’s compliance levels in the IMR-15 Federal Monitor’s report were as follows:
Primary Compliance: 100%
Secondary Compliance: 99%
Operational Compliance: 70%.
The 15th Federal Monitors report was a dramatic reversal from the past 3 monitor reports that were highly critical of the Keller Administration and the Albuquerque Police Department.
COMMENTARY AND ANALYSIS
It is very disappointing that a mere 55 of the 667 backlog of cases have been resolved with 612 remaining. In the 4th quarterly report, only 43 of those cases were resolved. 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 fifth 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 80%. The problem is APD also has a history of improving compliance levels taking major steps forward only for it return to previous lower levels