On December 26, in a press release, the Albuquerque Police Department (APD) announced that the federal Department of Justice (DOJ) and the Court Appointed Federal Monitor overseeing APD’s reform efforts agreed to transition Level 2 and 3 police officer use-of-force investigations from the External Force Investigation Team (EFIT) back to the APD Internal Affairs Force Division (IAFD).
What this means is that APD is once again primarily responsible and in control of all of APD’s use-of-force investigations of the most serious use-of-force cases involving APD police officers. This is a major step forward for a department that has been under a Court Approved Settlement Agreement with the U.S. Department of Justice since 2014 and after federal investigators found a “culture of aggression” within APD and that it had engaged in “a pattern of excessive use of force and deadly force.”
There are 3 Use of Force Classifications enumerated in the APD Use Of Force Policies:
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.
EFIT CREATION AND WHY
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 Police Officer of Use of Force cases. A Court Order was agreed to by the City and APD 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 and APD.
The EFIT is an outside team of experienced law enforcement investigators on contract with the city that was responsible for training APD’s Internal Affairs Force Divion (IAFD) on how to properly investigate use-of-force cases. Independent Monitor James Ginger was highly critical of APD creating a backlog of 667 Use of Force Cases saying it had “failed miserably in its ability to police itself.” Another function of EFIT was to clear the backlog of cases.
18th FEDERAL MONITOR’S REPORT
In his most recent 18th Federal Monitor’s Report filed on November 8, 2023, Federal Monitor James Ginger completely changed his tune regarding APD’s performance and implementation of the reforms mandated by the Court-Approved Settlement Agreement (CASA) with the DOJ. According to the Federal Monitor, a crucial part of APD’s compliance gains, has come from the higher-quality use-of-force investigations by the Internal Affairs Force Division under EFIT’s guidance.
The 18th Federal Monitors Report covers the time period of February 1, 2023 through July 1, 2023 and reports APD’s compliance levels being as follows:
- Primary Compliance 100%
- Secondary Compliance 99% (Down 1%)
- Operational Compliance 94%(95% is needed to be achieved and sustained for 2 years)
The 3 compliance levels are explained as follows:
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 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 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.
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 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.
TRANSITION OF USE OF FORCE INVESTIGATIONS FROM EFIT TO APD
EFIT was on call 24/7 and was required to 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 was required to conduct joint investigations with APD Internal Affairs Force Division (“IAFD”) of all Level 2 and Level 3 Use of Force incidents. The joint investigations included all Tactical Deployments where Use of Force was utilized. EFIT also assisted APD with training concerning the Use Of Force. 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 required 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 extended 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 Level 2 and Level 3 use-of-force incidents. This ostensibly will no longer be the case.
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.
Closed Use of Force cases are presented to the Force Review Board (“FRB”). All Level 3 cases, tactical deployments 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 were at the FRB level.
According to the most recent notice pleading filed with the Court, prior to the transfer of Use of Force Cases to APD, the EFIT, DOJ and the city developed a six-part transition plan for Internal Affairs Force Division complete investigations in a timely, thorough, and fair manner” without EFIT’s assistance. There are 14 of APD’s Internal Affairs Force Division investigators, made up of sworn personnel and civilians, were still under EFIT’s supervision when APD took over the investigation of cases. Eleven investigators had previously graduated from EFIT’s guidance to conduct investigations on their own.
IAFD’s transition plan includes a manual and orientation program for new investigators, as well as on-the-job training that pairs them with experienced IAFD personnel and replicates EFIT’s function. IAFD also created a rubric for evaluating whether investigations and case reviews follow policy and a dashboard to track cases and personnel performance.
As part of the transition of investigations back to APD, the department assigned an APD Internal Affairs Force Deputy Commander as the quality control manager “to ensure consistency amongst commanding officer reviews, replicating the EFIT Executive Team’s similar function.” According to court pleading filed, the plan outlines that EFIT will remain available to assist IAFD at APD’s request, and the department will regularly document IAFD’s ability “to train personnel and complete investigations within timelines.” APD will also send DOJ and EFIT weekly reports on IAFD’s casework and its training program for new investigators.
According to the notice pleading filed with the federal court on the transfer of investigations to APD:
“IAFD has demonstrated its capacity to complete investigations in a timely, thorough, and fair manner. IAFD has also set up systems to independently train, mentor, and oversee personnel going forward,” Returning the responsibility for Level 2 and Level 3 force investigations back to APD while EFIT continues working on the backlog also provides the Parties, the Monitor, the Court, and the public an opportunity to evaluate the efficacy of APD’s systems for investigating force, with a backstop still available if it is needed.”
PROGRESS MADE IN CLEARING BACKLOG OF CASES
It was on November 16, 2022, the External Force Investigation Team (EFIT) filed its 4th quarterly report covering the time period of August 5, 2022 to October 27, 2022. The EFIT reported that as of November 14, 2022, the total backlog of Use of Force Cases APD failed to investigate was 667 prompting a scathing review of the Federal Monitor. The EFIT now reports it has made substantial progress in clearing the cases and so far has cleared 470 of the backlogged cases with 197 remaining to be cleared. The problem with clearing backlogged cases that are past due, if officers violated policies, they cannot be disciplined as per the union contract.
WORDS OF PRAISE WITH WORDS OF CAUTION
While Federal Monitor Ginger praised the progress made by Internal Affairs Force Division (IAFD) investigators and supervisors in his 18th Federal Monitors report, he also raised concerns about APD’s top command staff not heeding IAFD’s findings. He noted in particular APD command staff deeming fatal police shooting as being in line with APD policy when it was not.
Dr. James Ginger in his 18th Federal Monitor’s Report praised APD’s significant progress over the last 2 years and applauded the work of force investigators and supervisors.
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.
FUNDAMENTAL CONCERNS ABOUT APD OVERSIGHT
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.
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.
The Federal court has scheduled next hearing on APD’s reform efforts and the Federal Monitor’s 18th report for January 4.
APD REACTION TO RESUMING USE OF FORCE INVESTIGATIONS
APD officials said its Internal Affairs Force Division resuming control of use-of-force investigations marked “another key milestone” in the department’s reform effort. APD Chief Harold Medina had this to say in a statement:
“This is a major accomplishment and one of the most meaningful changes we’ve made as a department. … It is critical that we are able to conduct our own, thorough and professional use-of-force investigations. … The Albuquerque Police Department has come a long way in trust transparency and actually properly investigating uses of force and getting that information out to the public,” APD’s Chief Harold Medina said. … We now have a review of our shootings every six months to see what the current trends are and that’s something we never did before as a department. … It’s really taught us to self-reflect to see how we can make changes before it’s brought to us by the Department of Justice.”
Links to quoted news sources are here:
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.
COMMENTARY AND ANALYSIS
It is now undeniable that APD has in fact turned the corner when it comes to investigating Polic Officer Use of Force cases. From March 21, 2021 when APD entered into a stipulated order where EFIT assumed use of force case investigations only after being threatened with contempt of court for willful failure to investigate 667 Use of Force cases until December 26, 2023, when it was announced that APD with consent of the Department of Justice will again assume responsibility, there has been a dramatic turn around and APD is finally getting the job done. The backlog of cases has gone from 667 to now 197 cases.
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 that all the cases must be resolved. Notwithstanding, significant progress has been reported.
With APD assuming self-monitoring in many areas and assuming Use of Force Investigations, and after over 9 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. 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%.
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 is in fact 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.
The link to a related blog article is here: