On November 14, 2014, the City of Albuquerque, the Albuquerque Police Department and the United State Department of Justice (DOJ) entered into a stipulated Court Approved Settlement Agreement (CASA). The settlement was the result of an 18-month long investigation by the Department of Justice (DOJ) that found that the Albuquerque Police Department engaged in a pattern of “excessive use of force” and “deadly force”, especially when dealing with the mentally ill. The DOJ investigation also found a “culture of aggression” existed within the APD.
The Court Approved Settlement Agreement mandates 271 police reforms, the appointment of a Federal Monitor and the filing of Independent Monitor’s reports (IMRs) on APD’s compliance with the reforms. There are 276 paragraphs in 10 sections within the CASA with measurable requirements that the monitor reports on.
The link to the 118-page CASA is here:
https://documents.cabq.gov/justice-department/settlement-agreement.pdf
18th FEDERAL MONITOR’S COMPLIANCE REPORT FILED
On November 8, 2023, Federal Court Appointed Monitor James Ginger filed his 18th report. The 18th Independent Monitor’s Report covers the time period of February 1, 2023 through July 1, 2023. The report is 168-pages long. It is the shortest report filed to date with the previous reports averaging about 300 pages. The link to review the entire 18th report is here:
Click to access final-imr-18.pdf
The 18th report finds that APD is only ONE percentage point from full compliance in “Operational Compliance” going from 92% to 94%. APD went down by 1% in “Secondary Compliance” going down from 100% to 99%. APD and sustained Primary Compliance at 100%.
Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 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 2018.
The 3 compliance levels are 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.
DRAMATIC PROGRESS MADE IN COMPLIANCE LEVELS OVER 4 REPORTING PERIODS
Operational Compliance is considered the most difficult to implement and achieve. The 14th, 15th and 16th reports saw significant gains in Operational Compliance but the 17th report brought APD the closest it had ever been to full compliance with 92% reported and with 95% needed to be achieved and sustained for 2 years in all 3 compliance levels.
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)
15th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS
On May 11, 2022, Federal Court Appointed Independent Monitor filed his 15th Report on the Compliance Levels. 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.
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 were as follows:
- Primary Compliance: 100% (No change)
- Secondary Compliance: 99% (No change)
- Operational Compliance: 80%. (10% increase from 70%)
17th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS
The Federal Monitor IMR-17 report which covers August 1, 2022, through January 31, 2023, reported APD’s compliance levels were as follows:
- Primary Compliance 100%
- Secondary Compliance 100%
- Operational Compliance 92% (95% needed to be achieved and sustained for 2 years)
18th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS
The Federal Monitor IMR-18 report covers February 1, 2022, through July 31, 2023, and reports APD’s compliance levels are as follows:
- Primary Compliance 100%
- Secondary Compliance 99% (Down 1%)
- Operational Compliance 94% (95% is needed to be achieved and sustained for 2 years)
HIGHLIGHTS OF 18TH FEDERAL MONITOR’S REPORT
Dr. James Ginger in his 18th Federal Monitor’s Report praises APD’s significant progress over the last 2 years and applauds the work of force investigators and supervisors. Ginger notes the steady upward trend in Operational Compliance starting in IMR-14 and continuing through IMR-18.
During the 18th reporting period, from February 1, 2023 through July 1, 2023, the monitor reported:
“… training processes remained strong, reflecting “best-standards” of training needs, curricula development, and delivery of CASA-congruent training programs. Importantly, during this reporting period, with the approval of the Parties and the concurrence of the monitor, APD is now self-monitoring 157 specific paragraphs. APD continues to develop the ability to independently self-monitor with review by the monitoring team.”
The monitor noted compliance findings began improving markedly during the 2021 IMR-14 reporting period and that APD continued to make gains for 5 consecutive monitoring periods. The monitor reported that the compliance surge was due to APD’s finally understanding the change process, and focused APD leadership vis a vis compliance issues.
During the 18th reporting period, the monitor’s team reviewed 8 cases completed by the External Force Investigation Team and found each case to be “thorough, accurate, well-documented, and congruent with APD policy and national standards. This is a major milestone. The case reports comply with policy, training, and in-field performance. This is a central reform requirements of the Court Approved Settlement Agreement (CASA).”
The Federal Monitoring Team found APD’s disciplinary findings and practices continue to improve during this reporting period. However, the monitoring team found they are not yet at the 95% compliance level which is mandated for 2 years before the case can be dismissed. During the reporting period, the monitoring team found that all on-body recording devices (OBRD) usage standards followed CASA requirements.
DEFICIENCIES NOTED
The Federal Monitor noted some other critical compliance issues during the reporting period. These include a continuing issue of adequately staffing the Citizen’s Police Oversight Agency (CPOA) and providing adequate training for board members and reconstituting the process of strong CPOA oversight.
The 18th report found an unacceptable delay in the process of appointing a contract compliance officer, a qualified permanent executive director of Civilian Police Oversight Agency (CPOA), and a deputy executive director of the agency. The monitor noted a continuing issue with CPOA investigators meeting articulated timelines. The Federal Monitor again recommended a formal external assessment of CPOA workload and staffing.
A major concern was identified about the trend during IMR-17 and IMR-18 with Force Review Boards mishandling of some officer-involved shootings. The report noted it is extremely difficult for an agency to function well, absent strong oversight processes related to high-risk critical tasks, particularly when these tasks are a major reason for the existence of the CASA. The monitor identified this issue as a major problem due to the fact that one of the major reasons for the existence of the CASA was questionable APD officer-involved shootings over a protracted period.
FUNDAMENTAL CONCERNS ABOUT APD OVERSIGHT
The 18th Federal Monitors Report raised fundamental concerns about oversight from the top management levels of APD, or those who make up the Internal Affairs Force Division (IAFD) and Force Review Board (FRB). The report said for the second time, the FRB and IAFD had disagreed with investigators, deeming fatal police shooting as being in line with APD policy when it was not.
A few nonfatal police shootings have been found out of policy in recent years but yet APDs top command staff has yet to find a fatal police shooting out of policy, meaning an officer’s actions were not “objectively reasonable, proportional, nor the minimum amount of force necessary.” The Federal Monitoring team said it identified “a grave and substantial malfeasance” in the top command staff mishandling of a fatal police shooting, erroneously ruling it justified.
The monitoring team reported the concerning trend of Internal Affairs Force Division leadership and the Force Review Board “mishandling” police shootings following a year in which the department shot or shot at a record-high 18 people, with 10 of them being killed.
REVISITING THE JESUS CROSBY DEADLY USE OF FORCE CASE
The monitoring team described the Jesus Crosby deadly use of force case as one of the “more obvious mishandlings of organizational oversight that we have seen since the inception of the CASA. … The case is replete with issues, from the shooting itself through the handling of the case.”
Officers simultaneously fired Tasers and bullets at Crosby, who was suffering a mental health crisis and holding fingernail clippers outside APD headquarters. A force investigator, civilian oversight director and one Force Review Board (FRB) member found the shooting out of policy, but an Internal Affairs Force Division commander and the rest of the FRB reversed that finding. APD modified its policies following the shooting in the hopes of expanding the use of less-lethal force in such situations.
The 18th IME Report went so far as to questioned if Internal Affairs Force Division (IAFD) leadership or Force Review Board (FRB) members “are competent to review cases of this significance.” The report said no FRB member asked questions about the policy disagreement or about the six shots fired after Crosby was on the ground, and only one member “asked insightful questions regarding the appropriateness of deadly force.” That same member, according to the report, voted the use of force was not necessary but was outvoted by the other members.
The team noted it marked the second time the FRB has ignored “a compelling justification” for an out-of-policy ruling in a fatal shooting. The monitoring team added, “In our opinion, all parties should be concerned if any IAFD personnel believe, or were led to believe, that the use of deadly force by officers, in this case, was appropriate.”
The report noted that the FRB has excelled in recent years due to 3 “specific deputy chiefs,” one of whom has retired while the other two were not at the FRB meeting. According to the report:
“We have commented in the past that reforms cannot exist as a result of specific people, and instead have to be woven into the fabric of APD’s culture.”
Referencing the November 2022 shooting of Jesus Crosby, the Federal Monitor’s report states:
“Most troubling is that in this case, the IAFD investigator and supervisor did what was required, and the deficiencies began at the Internal Affairs Force Division command level and were endorsed by the Force Review Board … We are equally concerned with the chilling effect a case like this can have on Internal Affairs Force Division investigators and supervisors who will be called to make difficult, honest, and accurate findings in the future.”
Independent Monitor James Ginger said it was the second such occurrence in a year and warned the Albuquerque Police Department of the “chilling effect” it could have on those tasked with investigating use of force incidents in the future.
Private Attorney Mark Fine, who is represents the Crosby family in a civil rights and wrongful death lawsuit, said the family thanked the monitoring team for its “good-faith assessment of the killing of Jesus and for calling out the backwardness of APD leadership’s absurd determination that the shooting was ‘within policy.’” Fine said this:
“Since 2014, the City has known and admitted that a lack of supervisory oversight allowed a culture of aggression to develop in its ranks, which resulted in a pattern of unnecessary and deadly uses of force. …The Monitor’s report reveals that this toxic dynamic continues.”
CPOA CASES REVIEWED
According to the 18th Federal Monitor’s, the monitoring team reviewed a random sampling of 20 CPOA cases centered on civilian complaints. The auditors found deficiencies in 6 of the cases. In all of the cases there was a failure to meet deadlines, and two cases also had incomplete interviews.
The issues stemmed from low staffing, with six investigators tasked with investigating more than 600 complaints a year, according to the 18th IME report. The end result was a backlog of dozens of complaints and only half of the investigations being completed.
The monitoring team called the workload “excessive and unsustainable,” saying it “likely leads to poor outcomes regarding timelines, quality, and effectiveness.” In the worst-case scenarios, lower-priority cases extend past due dates, and any sustained findings cannot be disciplined, according to the report.
The Federal Monitor’s team suggested fully staffing the board, filling three vacant supervisory roles and conducting a staffing study to “establish realistic expectations” on a mandatory number of investigators needed for the workload.
CIVILIAN POLICE OVERSIGHT BOARD FOUND IN CRISIS
The Federal Monitor identified in the 18th Report the failures of civilian oversight that represent the largest remaining roadblock to the city ending its yearslong consent decree with the U.S. Department of Justice.
Twelve of the remaining 15 paragraphs of the Court Approved Settlement Agreement involve failures with the Civilian Police Oversight Agency (CPOA) which is appointed and overseen by the Albuquerque City Council. The Civilian Police Oversight Advisory Board (CPOA) was formed in January of this year after the City Council abolished the previous Civilian Police Oversight Board.
The 18th Federal Monitor’s Report found that the civilian oversight mandated by the CASA is “in crisis” with understaffing and excessive caseloads leading to inadequate investigations by the external board tasked with everything from evaluating civilian complaints to weighing in on police shootings.
The report also showed that 12 of the remaining 15 sections of the settlement that are noncompliant revolve around the operations of the Civilian Police Oversight Advisory Board. The monitor found that since the change made in January, the CPOA hasn’t been able to properly function. The five-person board currently has only two members. The 18th Monitor Report states:
“From the monitor’s perspective, CPOA is in crisis. This crisis was birthed by understaffing, the need for the City to fill supervisory and oversight positions, and the need to improve the organizational structure of the agency.”
The CPOA’s problems led the city to fall behind on Secondary Compliance which had reached 100% compliance in the 17th report but dropped by 1% and is now at 99% in the 18th IME Report due to a drop in CPOA training.
City Council President Pat Davis said in a letter to Mayor Tim Keller that changes to “key leadership” within the City Council and the administration “slowed things down” over the summer, but they have since interviewed more than a dozen applicants for the vacant board positions. Davis said the council expects to reach its initial goal of having those positions filled, as well as filling a crucial leadership role, by the end of the year.
Davis said the board is expected to be fully staffed and hire a contract compliance officer, who would make sure the CPOA abides by the settlement agreement and would be in charge of staffing, by the end of December. Davis said this:
“We’re on track. … This is the last big-ticket item, the administration wants it done fast, the monitor wants it done fast, we want it done well — and fast.”
Come January 1, a new city council will be sworn that will not include Pat Davis in that he did not run for a third term
During a November 8 news conference announcing the 18th Federal Monitors Report, Mayor Keller emphasized the CPOA is the responsibility of the City Council, but said his administration is “here to help.” When asked if the city could reach full compliance without the CPOA portions of the CASA fulfilled, city and police officials replied, “Just barely.”
Keller said if the City Council doesn’t get the CPOA into compliance with the CASA, one option would be to split the CASA into two, calling the CPOA half “a little casita.”
REACTION TO 18TH FEDERAL MONITOR’S REPORT
Standing in front of a graph charting the city’s progress and noting the 1% left in the reforms to achieve compliance, Mayor Tim Keller said this:
“The amazing thing is — this is all that’s left. … There’s like that much left in the DOJ process. That’s it and that is how far we have come [in 9 years].”
Albuquerque Police Chief Harold Medina, using a football analogy, said APD is at the 1-yard line with the Court Approved Settlement Agreement and said this:
“We don’t want to fumble the football, and we want to get into the end zone. … I think it is imperative that we recognize the hard work of the men and women of this department. We will never be perfect anytime we have a process that involves humans … but this is about ensuring that there’s accountability when we’re not perfect.”
Medina noted that APD statistics have shown a drop in crime and uses of force, outside of police shootings, since 2017, alongside a boost in officer productivity, measured by arrests and traffic stops. Medina said this:
“We wanted to beat the idea that you cannot have reform and a safe city.”
Police union president Shaun Willoughby said he was looking forward to the end of the CASA. Willoughby also called the monitoring process “a scam”. Willoughby said this:
“This report and the impact of the report changes absolutely nothing for years to come, in my opinion. … Using force as a police officer, it’s good to take it seriously … But I also think that we overdo [investigating] it.”
Willoughby added APD has learned to categorize and investigate force at “an expert level” but believes it could’ve been done for much less time and money.
The American Civil Liberties Union of New Mexico, a major critic of APD, in responding to the 18th Federal Monitors report, recognized the work that has been done by APD. However, Daniel Williams, the ACLU Policing Policy Analyst said the shortcomings and failures identified in the 18th Federal Monitors report speak to culture change within the department and what “brought DOJ to town in the first place.” Williams said this:
“If the chain of command has not bought into a new attitude toward policing, has not really bought into these reforms and is continuing to go with the same status quo that has failed us for years, is the CASA going to be sustainable when DOJ leaves town?”
Links to quoted news sources are here:
https://www.cabq.gov/police/documents/final-imr-18.pdf
https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement
COMMENTARY AND ANALYSIS
THE REAL SCAM ARTIST IDENTIFIED
Police Union President Shaun Willoughby just had to open his big mouth and make the inflammatory and false statement that the reform process has been “a scam” and that the reforms could have been completed much sooner and less costly. The real scam artists during the last 9 years of implementing the reforms has been none other than Shaun Willoughby himself and the police union members of sergeants and lieutenants he represents who did everything they could to undercut the police reforms brought on by the Department of Justice (DOJ) investigation that found a “culture of aggression” and repeated use of deadly force and excessive use of force.
Over the years, the Federal Court Appointed Monitor labeled the policde union interference with the reforms as the “County Casa Effect”. The monitor said this in one of his reports:
“Some members of APD … resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example, … Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines [mandated by the union contract] for discipline cannot be met.
Many of the instances of non-compliance seen in the field are a matter of “will not,” instead of “cannot”! The Monitor … report[s] … he sees actions that transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership. … Supervision, which includes Lieutenants and Sergeants in the union, need to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”
On April 27, 2021, it was widely reported that the Albuquerque Police Officers Association (APOA) launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing police officers from doing their jobs and combating crime. The federal monitor’s response was swift and sure and he said in open court:
“[The accusation is] a union canard. We’ve talked about the counter-CASA effect in Albuquerque for years and years, and it is still alive and well. This latest process from the union is just another piece of counter-CASA. The union would like us out of town, I’m sure, and remember this monitoring team – as much as we love Albuquerque – would be glad to be done with the job. But we’re not going to give passing scores unless passing scores are earned. … [if the city] will actually focus on compliance”
REFORMS ACHIEVED UNDER THE CASA
On November 16, 2023, it was a full 9 years that has expired since the city entered into the CASA with the DOJ. It was originally agreed that implementation of all the settlement terms would be completed within 4 years, but because of previous delay and obstruction tactics by APD management and the police officers’ union found by the Federal Monitor as well as APD backsliding in implementing the reforms, it has taken another 5 years to get the job done.
Now after 9 full years, the federal oversight and the CASA have produced results.
Reforms achieved under the CASA can be identified and are as follows:
- New “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.
- All sworn police officers have received crisis management intervention training.
- APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.
- The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.
- Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.
- “Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police also receiving the training.
- APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.
- APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
- The Repeat Offenders Project, known as ROP, has been abolished.
- Civilian Police Oversight Agency has been created, funded, fully staffed and a director was hired.
- The Community Policing Counsels (CPCs) have been created in all area commands.
- The Mental Health Advisory Committee has been implemented.
- The External Force Investigation Team (EFIT) was created and is training the Internal Affairs Force Division on how to investigate use-of-force cases, making sure they meet deadlines and follow procedures.
- Millions have been spent each year on new programs and training of new cadets and police officers on constitutional policing practices.
- APD officers are routinely found using less force than they were before and well documented use of force investigations are now being produced in a timely manner.
- APD has assumed the self-monitoring of at least 25% of the CASA reforms and is likely capable of assuming more.
- The APD Compliance Bureau has been fully operational and staffed with many positions created dealing directly with all the reform efforts and all the duties and responsibilities that come with self-assessment.
- APD has attained a 100% Primary Compliance rate, a 99% Secondary Compliance rate and a 92% Operational Compliance rate.
CITY SHOULD SEEK DISMISSAL OF CASE AND NOT WAITE ANOTHER 2 YEARS
Over the last 9 years, APD has devoted thousands of manhours and the city has spent millions of dollars on the reform process, creating and staffing entire divisions and roles and rewriting policies and procedures. More recently, APD has implemented oversight outside of the CASA requirements, implementing six-month reviews of police shootings to identify shortcomings and possible solutions.
Despite the concerns raised in the 18th Federal Monitors Report, the city’s compliance with reforms has never been higher. The monitor’s 18th report shows APD has reached 100% in Primary Compliance, 99% in Secondary Compliance and 94% in Operational Compliance the highest levels ever reached in 9 years. Once 95% compliance or better is reached in all 3 of the compliance levels, APD must sustain that compliance for two years. After a full two years of compliance in the 3 compliance levels, the case can be dismissed bringing and to end the consent decree.
Given the extent of the compliance levels, the work of the Federal Monitor can be said to be winding down. The purpose and intent of the settlement has been achieved. The city should seek to negotiate a stipulated dismissal of the case with the Department of Justice (DOJ) sooner rather than later. Should the DOJ refuse, the City Attorney should move to immediately to dismiss the case under the termination and suspension provisions of the CASA by filing a Motion to Dismiss the case and force the issue with an evidentiary hearing and let the assigned federal judge decide the issue of dismissal.