On Tuesday, December 1, the interim Courts, Corrections and Justice Committee of the New Mexico legislature were told by law enforcement and local government officials that a state Civil Rights act would allow an onslaught of costly legal claims filed in state court over alleged infringements on free speech, freedom of religion and other constitutional rights. Committee members did not vote on whether to endorse the proposed law, which is expected to be debated during the coming 60-day legislative session, but the hearing gave a preview of the type of debate that will occur during the 2021 legislative session.

Under the draft of the proposed Civil Rights Act, individual law enforcement officers and all public officials in general would not be personally liable for damages would not have to pay any court-ordered damages. Such damages would be paid by the public agency or body that employs the defendant, as is currently the practice under state law.

CREATING AN NEW STATE CAUSE OF ACTION

On November 12th, the New Mexico Civil Rights Commission voted to recommend the enactment of a “New Mexico Civil Rights Act.” The new Civil Rights Act would allow legal claims to be filed in State District Court over alleged infringements of free speech, freedom of religion and other constitutional rights. The Civil Rights Commission voted 5 to 4 in favor of enactment. The commission made it known that two separate reports will be prepared, one by the majority and one by the minority who voted in opposition.
Under the proposed law, claims of constitutional rights deprivations could be filed in all State District Courts around New Mexico. Currently, such claims of constitutional rights can only be filed in federal court but not in state courts. The practical effect under the current law is that whenever wrongful death cases are filed involving a police officer shooting, the case is removed to federal court where federal case law applies.

In the state of New Mexico, the overwhelming number of officers involved shooting cases result in settlements and no jury trials. The proposed state Civil Rights Act will create a separate state cause of action and in turn a framework to recover for alleged constitutional infringements under state law. The new law would also bar the use of “qualified immunity” as a legal defense as is allowed in federal court.

The proposed law would allow plaintiffs to seek only compensatory or actual damages, but not punitive damages. In other words, judgments secured in a state court cause of action would only be the actual costs associated with the injuries, such as medical bills for injuries or losses incurred, including property damage.

DETAILS OF CAUSE OF ACTION

Under the proposed legislation, individual law enforcement and other government officials would not be “personally liable” to pay actual or punitive damages awarded by a jury, a judge or agreed to in a settlement. Under the proposed Civil Rights Act, such damages would be paid by the public agency or body that employs the law enforcement officer or government employee. Damages being paid by the public agency or body that employs the law enforcement or government employee sued is already required under the New Mexico Tort Claims Act. The new act would require public government entities to keep a file of all judgments and settlements under the proposed Civil Rights Act and make the records available under the state’s Inspection of Public Records Act (IPRA).

The legislation has been drafted for introduction and consideration during the 2021 New Mexico Legislative session that begins on January 19, 2021. As being proposed, the new New Mexico “Civil Rights Act” will not allow the doctrine of “qualified immunity” to be used as a defense by law enforcement and public officials resulting in personal liability. The primary purpose of the new Civil Rights Act is to abolish the “qualified immunity” doctrine in a state cause of action that does not exist yet but will be created un the new state civil rights act.

The elimination of the qualified immunity defense raises the serious question if law enforcement and government employees will feel compelled or be required to carry some form a liability insurance. The actual cost of such insurance will also be raised as being prohibited, especially to low wage government employees such as teachers. Teachers will be particularly vulnerable to charges that they are infringing on the rights of students first amendment rights of freedom od speech and religion.

Links to news sources are here:

https://www.newsbreak.com/new-mexico/santa-fe/news/2102340921572/nm-civil-rights-act-recommended

https://www.abqjournal.com/1517914/nm-civil-rights-act-recommended.html

QUALIFIED IMMUNTIY

As drafted, the Civil Rights Act will first create cause of action for infringements of free speech, freedom of religion and other constitutional rights by all government employee, not just law enforcement, and would include teachers, firefighters, The new law would also bar the use of “qualified immunity” as a legal defense.

Qualified immunity is a type of legal immunity created by the United States Supreme court that shields government officials from being held personally liable for constitutional violations. In 1982, the United State Supreme Court in the landmark case of Harlow v. Fitzgerald, 457 U.S. 800 (1982), held that federal government officials are entitled to qualified immunity. The Court reasoned that “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”

Qualified immunity frequently appears in cases involving police officers. Qualified immunity protects a police officer from lawsuits alleging that the officer violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. The Qualified immunity doctrine balances two important interests. Those interests are the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.

When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case. Violations of constitutional rights would include the right to be free from excessive police force or unjustified deadly force for money damages under federal law so long as the officials did not violate “clearly established” law.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. The result is that courts must resolve qualified immunity issues as early in a case as possible. Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.

“QULAIFIED IMMUNITY” DEFENSE STICKING POINT

Excluding qualified immunity as a defense is the major point of contention to the enactment of a state Civil Rights Act and the actual reason for enacting it and creating a new cause of action under state law. Abolishing qualified immunity has generated concern from the New Mexico Association of Counties about more expensive insurance policies.

Civil Rights Commission members who opposed recommending the enactment of a State Civil Rights Act testified the law would increase local governments’ insurance costs and lead to law enforcement officers leaving New Mexico. Former Belen Police Chief Victor Rodriguez, a dissenting member of the commission, said the Civil Rights Act would ultimately enrich lawyers, but not fundamentally help victims and added:
“The creation of a new state law is unnecessary.”

New Mexico State Senator Joseph Cervantes, D-Las Cruces, who attended the legislative committee, had this to say:

“The last thing we want to do here is pass an act that makes the cities and counties uninsurable.”

Senator Cervantes stated that instead of enacting a new Civil Rights Act, it would be better to amend the state’s Tort Claims Act under which some government misconduct lawsuits can be filed.

PUSHBACK ON OPPOSITION CLAIMS

House Speaker Brian Egolf, D-Santa Fe, pushed back on the claims that enacting a civil rights statute to hold government accountable in cases of flagrant violations is needed, in addition to the federal causes of action that are already in federal law. Egolf scoffed at the argument that employee misconduct or wrongdoing will lead to costly legal claims. Egolf pointed out that plaintiffs would still have to prove their cases before a court under the proposed Civil Rights Act and which would not allow the legal doctrine of qualified immunity to be used as a defense in such cases. According to Egolf:
“Getting rid of qualified immunity doesn’t throw the doors open to anyone who wants to get a big check from the government.

Former Supreme Court Chief Justice Richard Bosson, chairman of the Civil Rights Commission, state the New Mexico Legislature could create a fund to help offset any cost increase for smaller New Mexico cities and counties. According to Bossom:

“If there’s going to be a cost, that should fall, in our opinion, on the Legislature.”

https://www.abqjournal.com/1522751/proposed-nm-civil-rights-act-could-be-costly-legislators-told-law-enforcement-local-officials-wary-of-law.html

COMMENTARY AND ANALYSIS

When Former Supreme Court Chief Justice Richard Bosson says “If there’s going to be a cost, that should fall, in our opinion, on the Legislature” it’s a reflection of a person use to making rulings usually for the benefit of just one party. Justice Bosom with his remark is not at all sensitive to the responsibility of the legislature to delivery essential services such as police protection, fire protection and education needs of its children and social services. Former Justice Blossom all too conveniently ignores the legislatures financial responsibility to its constituents who ultimately pay for judgments that will materialize as a result of a new cause of action.

It should come as no surprise that plaintiff’s lawyers, such as Speaker of the House Brian Egolf, are in favor of enactment of a Civil Rights Act. At the absolute center of the debate is whether the State Of New Mexico should go out of its way to create a whole new cause of action for violation of civil rights under state laws and state constitutional rights to ease the burden of proof to recover damages in a court of law free of any “qualified immunity” defense. It’s likely that the state law would also need to mandate some form of “election of remedies” providing that a plaintiff alleging violation of civil rights must decide to either to proceed in state court or in federal court under the civil rights act commonly referred to as a 1984 cause of action.

Many argue that a New Mexico Civil Rights Act is needed to stop the “culture of aggression” or systemic racism and stop the excessive use of force or deadly force by law enforcement. When it comes to the Albuquerque Police Department (APD), the city has paid out upwards of $64 million dollars over the last 10 years for excessive use of force and deadly for cases and civil rights violations stemming from a “culture of aggression” found by the Department of Justice (DOJ). For the past 6 years, APD has been under a federal court consent decree that mandates 271 reforms that APD and the city are still struggling to implement under the watchful eye of a federal judge and a federal court appointed monitor.

LIKELY OPPOSITION

It is highly likely public employee unions, including all law enforcement unions and local governments will make it known their opposition on the need for a Civil Rights Act, especially one that does not provide for qualified immunity or that provides for personal liability of government employees. Notwithstanding what the New Mexico legislature decides, it will have to recognize it is a very big decision that no doubt will be ultimately very costly to taxpayers and the New Mexico Tort Claims Act does not go far enough.

One argument being made is that the elimination of “qualified immunity” will change how police will do their jobs and stop the use of excessive use of force and deadly force by police. Law enforcement on the other had make the argument that police will be reluctant to do their jobs and not be proactive for fear of being sued.

It’s unlikely police will alter their actions given that actions of police are more “reactive” than “proactive” when it comes to “use of force”, “deadly force” and self-defense. When it comes to police officer involved shootings and civil actions, it always gets back to the issue of training in constitutional policing practices or negligent supervision. APD after 6 years and spending millions is still struggling with training in constitutional law enforcement practices. Officer involve shooting still happen, despite training.

Other groups of public employees that will likely be affected are teachers and firefighters. It is easy to see how teachers could be accused of violating a student’s free speech and freedom of religion in science classes, history classes and sociology classes. Firefighters could also be easily accused of interference with rights of privacy or civil rights violations under any number of fact scenarios involving emergency procedures and administering medical care.

CONCLUSION

From a practical standpoint, it makes little or no sense to enact a Civil Rights Act that creates a new cause of action for violations of state constitutional rights by government employees, abolishing qualified immunity only to have a Tort Claims Act that mandates a defense and payment of judgments for damages. It appears with the enactment of a Civil Rights Act as proposed, damage to a plaintiff, the liability of a government employee and the taxpayer wind up in the exact same place as to who pays for the damages under the Tort Claims Act. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court.

On December 10, it was reported that since August, the Albuquerque Police Department’s (APD’s) anti-crime operations have netted 508 arrests, and recovered 76 guns and 62 stolen vehicles. The 508 arrests over the 5-month period are in reality a very small fraction of the number of arrests made per year during the last 4 years which are as follows:

2016: 14,022 total arrests
2017: 13,582 total arrests
2018: 15,471 total arrests
2019: 15,151 total arrests

The police operations focus on those who are wanted on “no bond hold” warrants. These are just a few of the violent defendants who are behind the majority of the crimes committed in the city.

In was in October that the Metropolitan Detention Center was experiencing an outbreak of COVID-19. At that time Bernalillo County Detention officials asked APD to use more discretion on who they arrested. According to Interim Chief Harold Medina, APD is honoring the request as to low-level offenders, presumably nonviolent offenders, but will continue to arrest violent offenders and said:

“We were willing, and we are listening on these low-level crimes. … But some of these serious repeat offenders are not going to get a pass because of COVID in the jail.”

A spokeswoman for the detention center said the jail’s outbreak is beginning to decline and on December 10, it was reported that the jail had 4 inmates and 11 staff with the virus and in quarantine.

MEDINA’S FALSE NARRATIVE

According to Interim Chief Harold Medina, there are some encouraging signs that APD’s anti-crime operations, such as the Violence Intervention Program (VIP) are having an impact on the city’s violent crime. In support of his argument, Medina pointed out that Albuquerque has had a slight dip in all four violent crime categories of homicide, rape, robbery and aggravated assault. Medina had this to say:

“When we started these anti-crime operations in the fall, we wanted to shift gears from reactive to proactive. … One of the things we recognize in crime that’s occurring in the city is … it seems like every time we arrest someone for a violent crime, that individual had a warrant out for their arrest when we took that individual into custody.”

According to a December 10 report, shootings in the city have been high over the last 5 years and are above where they were this time last year. In August, shootings resulting in injury or death were 33% above where they were at the same time last year. As of December 10, there were a total of 290 shootings. The 290 shootings included non-fatal shootings, homicides and accidental shootings and there was a reduction over the past couple of months.

While shootings have increased this year, other violent crime categories have decreased through the end of September when the data was collected. According to a report from the Major Cities Chiefs Association, a tally of 67 cities from across the United States showed there were more homicides and aggravated assaults in the first nine months of 2020 compared with the same time period in 2019.

A link to source material is here:

https://www.abqjournal.com/1525709/apds-anti-crime-operations-made-more-than-500-arrests.html

VIOLENE CRIME VERY PROBLEMATIC

Despite multiple efforts and anti-crime operations to crackdown on shootings and violent crime, both continues to be a problem in Albuquerque and Bernalillo County. APD reports that gun violence has gone down in recent months. This is simply not true. According to the Bernalillo County District Attorney’s Office which prosecutes APD and the Bernalillo County Sheriff’s Office cases, there have been a 15% spike in shootings in 2020. The DA’s office reports a 31% increase in deadly shootings in 2020, compared to 2019. So far this year, there have been more than 350 shootings. About 95% of them happened in the metro area.

Kyle Hartsock, special agent in charge of the DA’s Crime Strategies Unit, said the office just launched a dashboard to track shootings around the Albuquerque area. The new tool complies data on location, possible motive and whether it could be gang or group related. Hartsock had this to say about the program:

“The basic investigation always happens, but we’re trying to look beyond that. … So getting a bigger picture and fuller story on violent incident they help every step of the process.”

https://www.kob.com/albuquerque-news/das-office-has-new-tool-to-help-crack-down-on-gun-violence/5948365/?cat=500

2019 WAS BANNER YEAR FOR KELLER TO INTRODUCE NEW VIOLENT CRIME REDUCTION PROGRAMS

On November 20, 2019, it was reported the homicide count in Albuquerque for the year was at 72, matching the city’s record in 2017. By December 31, the final count would be 80 homicides.

In 2019, Mayor Tim Keller reacting to the spiking crime rates announced 4 plans in 9 months to deal with and bring down the city’s high violent crime rates . Those APD programs are:

THE SHIELD UNIT

In February 2018 the Albuquerque Police Department (APD) created the “Shield Unit”. The Shield Unit assists APD Police Officers to prepare cases for trial and prosecution by the Bernalillo County District Attorney’s office. The unit originally consisted of 3 para legals. It was announced that it is was expanded to 12 under the 2019-2020 city budget that took effect July 1, 2019.

https://www.abqjournal.com/1325167/apd-expands-unit-that-preps-cases-for-prosecution.html

DECLARING VIOLENT CRIME “PUBLIC HEALTH” ISSUE

On April 8, 2019, Mayor Keller and APD announced efforts that will deal with “violent crime” in the context of it being a “public health issue” and dealing with crimes involving guns in an effort to bring down violent crime in Albuquerque. Mayor Keller and APD argue that gun violence is a “public health issue” because gun violence incidents have lasting adverse effects on children and others in the community that leads to further problems.

APD is tracking violent crime relying on the same methods used to track auto thefts, weekly reports summarizing shootings, refining policies, and learning from best practices used by other law enforcement agencies. One goal is for APD to examine how guns are driving other crimes, such as domestic violence and drug addiction.

“VIOLENCE INTERVENTION PLAN” (VIP)

On November 22, Mayor Tim Keller announced what he called a “new initiative” to target violent offenders called “Violence Intervention Plan” (VIP). The VIP initiative was in response to the city’s recent murders resulting in the city tying the all-time record of homicides at 72 in one year. Mayor Keller proclaimed the VIP is a “partnership system” that includes law enforcement, prosecutors and social service and community provides to reduce violent crime.

On August 18, Mayor Tim Keller introduced his Violence Intervention Team of 4 experts tasked to help reach the small percentage of violent offenders. They include a former gang member, a juvenile justice professional, a mediator, and a police commander. They say they will make a difference by identifying and intervening with potential crime drivers.

According to Keller vulnerable communities and law enforcement will be working together and building trust has proven results for public safety. The goal of the team is to find crucial common ground, build new relationships, and significantly reduce gun violence in our neighborhoods. Mayor Keller stated:

“… This is about trying to get these people not to shoot each other. …This is about understanding who they are and why they are engaged in violent crime. … And so, this actually in some ways, in that respect, this is the opposite of data. This is action. This is actually doing something with people. …”

METRO 15 OPERATION

On Tuesday, November 26, Mayor Tim Keller held a press conference to announce a 4th program within 9 months to deal with the city’s violent crime and murder rates. At the time of the press conference, the city’s homicide count was at 72, matching the city’s record in 2017. Before 2017, the last time the City had the highest number of homicides in one year was in 1996 with 70 murders that year.

Keller dubbed the new program “Metro 15 Operation” and is part of the Violence Intervention Program (VIP) program Keller announced the week before. According to Keller and then APD Chief Michael Geier the new program will target the top 15 most violent offenders in Albuquerque. In other words, it’s the city’s version of the FBI’s 10 most wanted list. According to Keller, the top 15 will be identified by the Bernalillo County District Attorney’s Office. Once a violent offender is caught, another violent offender will be added to the list.

Links to news coverage are here:

https://www.abqjournal.com/1394576/city-launches-violence-intervention-program.html

https://www.kob.com/albuquerque-news/mayor-keller-touts-new-plan-to-tackle-violent-crime/5561150/?cat=500

On December 10, 2020, APD released an updated Metro 15 list after consulting with the District Attorney’s Office to identify wanted offenders. The list includes a murder suspect and an offender wanted for child abuse resulting in death.

A total of 50 offenders have been arrested since the Metro 15 operation began. The Metro 15 Operation is a targeted component of Mayor Keller’s Violence Intervention Program – a proactive effort to attack violent crime from all sides.

The Metro 15 is a working list of the top 15 violent crime offenders in Albuquerque identified by the Bernalillo County District Attorney’s Office, the New Mexico Attorney General’s Office, the state Office of Superintendent of Insurance, and APD.

http://www.cabq.gov/police/news/apd-highlights-updated-metro-15-list

APD’S “USE OF FORCE” REPORT

On Friday October 23, the Albuquerque Police Department (APD) released its “Use of Force” report covering a four-year time period from January 1, 2016 to December 31, 2019. The Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ) mandates that APD compile the report once a year.

The 74-page Use of Force report shows the findings from APD’s Internal Affairs Division as they looked into the department’s use of force for the 4-year time period. The city recorded 82 murders in 2019. FBI statistics reveal that Albuquerque has the dubious distinction of having a crime rate 194% higher than the national average. The link to the entire use of force report is here:

http://www.cabq.gov/police/documents/2016-19-albuquerque-police-department-annual-use-of-force-report.pdf

RATIONAL FOR LOOKING AT 4 YEAR TIME PERIOD

The 4-year time period of January 1, 2016 to December 31, 2019 was selected for two major reasons:

First: Refined data collection methods have allowed for updated and more accurate data, even retroactively. As of October 2019, APD’s Internal Affairs Force Division (IAFD) completed a thorough review of 304 cases, largely from 2017. Findings and revisions from this dataset have been incorporated into [the] updated report.

Second: The U.S. Department of Justice (DOJ) and City of Albuquerque Court-Approved Settlement Agreement (CASA) specifies exactly what information should be included in APD’s Use of Force Annual Reports. The use of a multi-year data set provides a better basis for defining these use of force measures, variables and analytic processes. Examining four years’ worth of data, 2016, 2017, 2018, 2019 allows for examination of trends and longitudinal patterns, which can inform best practices.

SHOW OF FORCE, USE OF FORCE

A “Show Of Force Case” involves one or more individuals, one or more police officers, and one or more displays of weapons, but no actual use of force during that incident.

A “Use Of Force Type Or Show Of Force” is the specific application of a force type or types in a Use of Force or Show Of Force incident. Use of force includes as empty-hand techniques such as hand strikes, knee strikes and kicks, use of an electronic control weapon such as a Taser, use of a baton, pepper spray or less lethal weapons. Show of force includes cases in which an officer displays a weapon at a suspect

For example, one police officer may display or use several kinds of force such as displaying a handgun, or empty hand techniques or electronic device, with one individual during one encounter. Therefore, the number of “Use Of Force Types” or “Show Of Force Types” will be higher than the number of individuals involved in Use Of Force or Show Of Force Cases.

NUTSHELL OF MAJOR APD STATISTICS FOR 2016, 2917, 2918, 2019

The Use of Force report released by APD in October contains an number of other statistics that merit review. The report has upwards of 56 bar graphs and charts and 8 maps in the 73-page report.

Below are the combined totals in the top 8 blogger “consolidated” categories for the years 2016, 2017, 2018, 2019. The calculations for the 7 categories are based on the raw numbers gleaned from the various bar graphs in the report.

Civilian deaths in 4 years involving APD shootings: 19
Number APD arrests: 58,251
APD “use of force” incidents (Empty hand, TAZER, gun discharge): 2,395
APD “show of force” incidents (Handgun, rifle, TAZER): 1,087
APD firearm discharges: 65
Number of times APD officers displayed a hand gun: 524
Number of times APD officers displayed a rifle: 212
Times APD used “electronic control weapon” (TAZER): 365
Estimated total “calls for service” generating “case numbers” 312,000 to 375,000
(Combined number of cases generated by all 6 area commands)

HIGHLIGHTS OF 4 YEAR USE OF FORCE REPORT

Following are major highlights gleaned from the report and bars graphs used:

– According to the use of force report for the 4-year period, the “use of force” and “show of force” incidents by APD increased each year for the years 2016, 2017, 2018 and 2019.

– The report stated 98% of the violations of use of force incidents were in policy, but there still was an increase in use of force for the 4 years.

– Approximately 88% of individuals involved in a use of force are arrested.

– 63% of individuals involved in a “force event” are between the ages 20-36.

When it comes to race and ethnicity:

1. 72% of individuals involved in a combined “show of force” and “use of force” events are white. (page 46)

2. 53% of individuals involved in strictly “use of force” events are Hispanic (page 49 of use of force report)

3. “Black and Native American individuals appear to be over-represented in “shows of force” and “uses of force.” However, statistical testing designed to compare expected (proportional) and actual values was completed and, due to small numbers, no conclusive results could be found as to Black and Native Americans.

Since certain demographic categories returned small expected values, statistical testing is inappropriate. Setting aside the percentages, the actual numbers are relatively small for Black and Native Americans. For instance, 11 Black individuals were involved in shows of force in 2017.

It is inappropriate to conclude that minority populations are over-represented; however, this is not an impossibility either. In short, while these percentages may look disproportionate, because of relatively small numbers of individuals of minority races involved in force events, it is impossible to say for sure if they are or are not statistically disproportionate.”

-95% of individuals involved in use of force incidents did not exhibit “limited or no English language proficiency”. (Page 52 of report)

-Sexual orientation was reported as unknown in 78% of force events. (Page 44 of report).

-Use of force incidents saw the biggest jump from 2018 to 2019 with a 23% increase. Notwithstanding the increase, overall, the report states that “use of force” and “show of force” are “an extremely rare occurrence ” during the 4 years reported upon.

From January 1, 2016 to December 31, 2019, about 1 per 500 to 1 per 1,000 “calls for service” and “officer-initiated actions” (OIA) involved APD using force.

From January 1, 2016 to December 31, 2019, between 4-5% of arrests involved police “use of force.”

An overwhelming majority of “use of force incidents” across all 4 years were found to be compliant with APD Use of Force policy.

In 2019 there were 605 uses of force and 163 shows of force with 10 uses of force incidents found to be out of policy or 1.6% of the total.

When it came to officer-initiated actions, such as spotting a stolen car, or witnesses a disturbance, APD officers used force a mere 212 times out of more than 242,000 incidents.

According to the report:

“It is unclear what may be driving the increase in use of force incidents from 2017 to 2018 and again from 2018 to 2019. … More proactive policing strategies, better reporting of force incidents and other initiatives may account for this increase. Additionally, four years of data is insufficient to draw conclusions about trends over time; the fluctuations may be simply ‘regression to the mean.’”

(Page 17, Use of Force report.)

NUMBER OF ARRESTS

Arrest is defined as “the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting the person. An arrest is a restraint of greater scope or duration than an investigatory stop or detention. An arrest is lawful when supported by probable cause.”

The number of arrests for the four years of 2016-2019 are as follows:

2016: 14,022 total arrests made
2017: 13,582 total arrests made
2018: 15,471 total arrests made
2019: 15,151 total arrests made

TOTAL NUMBER OF ARREST MADE BY APD: 58,226

FORCE INCIDENTS IN CONTEX OF NUMBER OF CALL OUTS

“Given how much interaction APD officers have with the public in a given year, as measured by the volume of calls for service, officer-initiated actions and arrests, force events are an extremely rare occurrence. From the years of 2016, 2017, 2018 and 2019, roughly 1 per 500 hundred to 1,000 calls for service and officer-initiated actions are associated with a use of force. Between 4% and 5% percent of arrests are associated with force.”

Following is the breakdown of statistics for each year:

2016:
Dispatched Calls: 422,471
Officer Initiated Actions (OIAs): 45,672
Custodial Arrests: 14,022
Force Incidents: 524

2017:
Dispatched calls: 429,598
Officer Initiated Actions (OIAs): 55,856
Custodial Arrests: 13,582
Force Incidents: 570

2018
Dispatched calls:410,538
Officer Initiated Actions (OIAs): 70,151
Custodial Arrests: 15,471
Force Incidents: 643

2019
Dispatched calls: 370,036
Officer Initiated Actions (OIAs): 70,903
Custodial Arrests: 15,151
Force Incidents: 768

TOTAL APD FORCE INCIDENTS: 2,505

COMMENTARY AND ANALYSIS

In 2017, New Mexico State Auditor and candidate for Mayor Tim Keller said:

“It’s unfortunate, but crime is absolutely out of control. It’s the mayor’s job to actually address crime in Albuquerque, and that’s what I want to do as the next mayor”.

Mayor Keller no doubt sincerely thought he could do a better job than his predecessor and he could actually make a difference. The truth is, he has not and crime in the city has only become even worse since Keller has taken office, especially in terms of violent crime.

City residents can take very little comfort from Interim Chief Medina’s comments and the released statistics that since August, over a 5-month period, 508 arrests and recovered 76 guns and 62 stolen vehicles. The truth is such a number of arrests is a very low figure in the entire spectrum of violent crime. Further, the reports that that overall crime in the city is down slightly offers little comfort.

The truth is the slight reduction in crime is not the result of anything Mayor Tim Keller nor the APD programs his administration has implemented. The response to the pandemic certainly is a contributing reason for lower property crime rates and many other crimes.

The slight reduction in crime can be easily attributed the pandemic that hit the city hard in February resulting in quarantine, major event cancellations not to mention the closure of thousands of businesses closed for several months. In others words, people being home, malls and businesses being closed means opportunities for criminals were reduced, businesses could not be robbed or have shoplifters, homes could not be robbed and many cars were parked in garages reducing auto thefts.

The disparity of the number of arrests as being a fraction as to the number of criminal incidents and dispatched calls is to be expected and is not at all surprising. Successful arrest are usually made at the time of a crime is committed or very soon thereafter. Cases involving such crime as auto theft, burglaries, even rapes and murder require extensive investigations and even then no arrests may be made in the cases because no suspects are found.

FBI statistics reveal that Albuquerque has the dubious distinction of having a crime rate 194% higher than the national average. Albuquerque has been on the forefront of the trend on violent crime increasing for the last 5 years and homicides have more than doubled. In 2014, the city had 30 homicides and each year thereafter homicides increased and in 2019 the city had 82 homicides, the most in the city’s history. As of December 10, the city has had 72 homicides and its likely there will be more.

In 2019, in response to the continuing increase in violent crime rates, Mayor Keller scrambled to implement 4 major crime fighting programs to reduce violent crime:

1. The Shield Unit,
2. Declaring Violent Crime “Public Health” issue,
3. The “Violence Intervention Plan” (VIP program) and
4. The Metro 15 Operation program. Based upon the statistics, the Keller anti crime programs have had very little effect on reducing violent crime.

All four programs have now been in effect for a full year. Based on the statistics, it is painfully obvious that the 4 programs have had very little to do with brining down the city’s high crime rates. Under normal circumstances, the public would give Keller and APD a pass an say “at least he tried.” However, it was Keller who promised to bring down the city’s high crime rates and saying he was “uniquely” qualified to be Mayor.

COOKING THE BOOKS

Then there is the matter of Mayor Keller “cooking the books” on APD’s crime statistics. When Keller took office on December 1, 2017, every quarter when APD released the city’s crime statistics, Mayor Keller would do a press conference to proclaim and to some extent take credit for crime going down in all categories. He did so on July 1, 2019, only 1 day after the second quarter of 2019 ended to report the mid-year crime statistics compared to last year midterm numbers. Mayor Keller reported that crime was down substantially, with double-digit drops in nearly every category, between the first six months of 2018 and the first six months of 2019.

The statistics released during the July 1, 2019 Keller press conference were the statistics the Albuquerque Police Department (APD) reported to the FBI in the first 6 months of 2019 that the property crimes of home burglaries were down and auto burglaries were down. Robberies, sexual assaults and murders were also reported as down from the first 6 months of last year. Double-digit drops were reported during the 6 months in violent offenses included robberies, down, aggravated assaults, and rapes.

https://www.abqjournal.com/1335502/crime-declining-in-albuquerque-new-numbers-show.html

On Sunday, December 1, the Albuquerque Journal reported that all the crime rate reductions Keller reported in his July 1, 2019 press conference were in fact seriously flawed and not accurate, and by big percentages. According to the report, both the 2019 mid-year statistics and the statistics released at the end of 2018 were revised dramatically to include hundreds, and in some cases thousands, more incidents than were initially reported. The final numbers for all of 2018 showed violent crime actually increased.

At an October meeting of the City Council, APD provided the revised statistics to it but failed to report that the numbers had changed drastically no doubt believing no one would notice. Mayor Keller also did not hold any kind of a press conference to correct nor announce the corrected statistics. The Keller Administration blamed the false numbers on antiquated software programs, but only after the Keller Administration had essentially been caught by the Albuquerque Journal. Mayor Keller for his part has never issued his own personal apology for misleading the public and trying to take credit for bringing down crime rates by using false statistics.

Here are the corrected statistics:

Auto burglaries decreased 16%, not 38% as previously announced
Auto theft decreased 22%, not 39% as Keller reported
Commercial burglary decreased 3%, not the 27% Keller reported
Residential burglary decreased 16%, not 39% as Keller reported
Homicide decreased 2.5%, not 18%, but homicides have since increased substantially and the city has tied the all-time record of 71.
Rape decreased 3%, not the 29% Keller reported
Robbery decreased 30%, not 47% reported by Keller
Aggravated assault decreased 7.5%, not 33% reported by Keller

The link to the full December 1 Journal article is here:

https://www.abqjournal.com/1396782/flaws-discovered-in-apds-crime-statistics.html

Tim Keller has already made it known he is running for a second term in 2021. Despite all of his new programs, increases in budgets and millions spent, violent crime is still very much out of control. Simply put people do not feel safe in their own homes. Voters are very fickle and unforgiving when politicians make promises they do not or cannot keep. Sooner rather than later people demand and want results. No amount of data collection, public relations or nuance programs are going to satisfy those demands or make people feel any safer. And neither is Interim Chief Harold Medina giving false narratives on success of Keller’s anti-crime initiatives.

Links to related blog articles are here:

APD “Use of Force” Report Shows 4 Year Increase In APD Use Of Force; 19 Civilian Deaths; 58,251 Arrests; 2,395 Uses of Force, 1,087 Shows Of Force; Small Fraction Of Overall Crime Stats; No Data Compiled On APD’s Intervention With The Mentally ILL

Mayor Keller’s Coffee Klatsch Program To Combat Violent Crime; APD Clearance Rates, Operation Legend, And Police Union Survey

On November 2, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 12th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The Report is 356 pages long. It follows the format as all the previous 11 reports. It’s a detailed audit of every single paragraph of the consent decree and for that reason it is tedious and difficult to read.

“COUNTER CASA AFFECT” STILL INTENTIONAL AND DESTRUCTIVE

The 12th Federal Monitors’ report contains a summary highlighting major deficiencies that have set back compliance levels. For the 4th time, and after over 6 years, the monitor again reports that the “Counter Casa” effect is interfering with APD accomplishing the implementation the settlement reforms.

It was on September 10, 2018 that Federal Monitor Dr. James Ginger first told the federal court that a group of “high-ranking APD officers” within APD were trying to thwart the reform efforts. The Federal Monitor revealed that the group of “high-ranking APD officers” were APD Sergeants and Lieutenants.

In his 10th report Federal Monitor Ginger referred to the group as the “Counter-CASA effect” and stated:

“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.

“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.”

In his 12th report, the Federal Monitor again identifies union resistance to the reforms by union membership. The Independent Monitor provides details of cases on how union members stall and delay internal investigations to the point no discipline is imposed and deadlines pass.

In his 12th Monitor’s Report, Dr. Ginger states:

1.“… [When] … Internal Affairs … allow union representatives … and … officers to respond to salient , and reasonable, fact-finding questions by simply reading a Garrity statement [invoking the right to remain silent] … into the record, as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors.”

5. Supervision, which includes Lieutenants and Sergeants in the union, “needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”

POLICE UNION CONTRACT PROVISIONS

The 2 year, city contract negotiated by the Mayor Tim Keller Administration with the Albuquerque Police Officers Association (APOA) was for the time period of July 7, 2018 to June 30, 2020 and therefor expired on July 1, 2020.

The 65 page APOA police “Collective Bargaining Agreement” (CBA) can be down loaded as a PDF file at this link:

https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view

Three sections of the police union contract are worth noting. Those sections are:

Recognition

Term of the Agreement, This Agreement shall become effective on the first full pay period following ratification by the rank-and-file membership, approval by the Mayor, and signature by the parties, and shall remain in full force and effect through June 30, 2020.”

THE COURT APPROVED SETTLEMENT AGREEMENT (CASA)

It was on October 31, 2014 that the federal Court Approved Settlement Agreement (CASA) was agreed to by the City of Albuquerque and the Department of Justice (DOJ) mandating 271 APD reforms and the appointment of a Federal Court appointed monitor to conduct audits of APD’s progress on implementing the reforms. The link to the CASA is here:

http://documents.cabq.gov/justice-department/settlement-agreement.pdf

https://www.justice.gov/usao-nm/apd#:~:text=On%20October%2031%2C%202014%2C%20the,use%20of%20force%20against%20civilians.

After the CASA was agreed to by the City and DOJ, the police union intervened in the case and was allowed to become a third party to the federal court litigation. The Federal Court approved the intervention without question because the parties agreed.

Becoming a party to the lawsuit allowed the union a right to participate in any and all negotiations, especially the writing of new “use of force” and use of “deadly force policies” for APD. The police union became a party to the proceeding for two major reason:

One: To promote and preserve any and all rights its membership has under the union contract, especially those that may come in conflict with the CASA.

Two: To allow it to give input and give its stamp of approval on city policy on use of force and deadly force

During the August 20, 2019 status conference, the APOA Union President Shaun Willoughby made it clear his union membership attitude towards the CASA reforms. District Court Judge Browning asked APOA Union President Shawn Willoughby what he and the union rank and file felt about the CASA. Willoughby’s responses were a quick condemnation of the CASA when he said “we hate it … we’re frustrated”, and went on to say the reforms and mandates are “a hard pill to swallow”, and he said that “all change is hard”.

According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. The police union has never articulated in open court and in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs and “why they hate” the CASA. The union has said police officer’s feel their “hands are tied” preventing them from being pro-active.

It’s likely what the police union feels is interfering with its membership from doing their jobs includes one or more of the following:

1. The mandatory use of lapel cameras by APD.
2. APD police can no longer shoot at fleeing cars.
3. APD police can no longer use choke holds to subdue suspects.
4. APD police need to use less lethal force and not rely on the SWAT unit.
5. APD police must use de-escalating tactics.
6. All APD officers must be trained in crisis intervention.
7. APD management must now hold all subordinate police officers accountable for all levels of violations of standard operating procedures.
8. The mandatory “paper work” associated with any degree of use of force is too cumbersome.
9. APD Police officers are required to intervene when they witness and are concerned about other officers use of force.
10. Mandatory notification to superiors for investigation by police officers who witness another officer’s “excessive use of force” or violations of CASA reforms.

THE POLICE UNION CONTRACT PROCESS EXPLAINED

One of the first terms of the union contact is who will be included in the “bargaining unit”. In the expired contract, the APOA is recognized as the exclusive representative for regular full time, non-probationary police officers through the rank of Lieutenants in APD. This means the ranks of Sergeants, Master Police Officer, Senior Police Officers, Patrol Officers First Class, and all Detectives are included in the bargaining unit. Approximately 16 years ago, the positions of APD Captains, who are now called Area Commanders, were included in the bargaining unit until the City demanded their removal from the union in that they are management.

Negotiated police union contract terms include hourly pay, overtime pay and bonus pay know as longevity pay, the way that police officers’ records are maintained, and how internal affairs investigations are conducted. These are standard provisions that are common place in APD’s contract.

The union contract includes numerous provisions and stipulations to protect police officer’ s employment rights and remedies, including the right to appeal disciplinary action. The police union contract gives officers accused and found violating standard operating procedures and found guilty of wrongdoing a wide range of “vested” rights they would not have as unclassified or “at will” employees. A union negotiated right includes the right to appeal any and all disciplinary action and to be reinstated and paid all back pay if reinstatement is ordered by the personnel board.

After the police union employment contract is negotiated between the city and the union, the union membership then votes to accept or reject the contract on a majority vote. Once approved by the union membership, the contract is forwarded to the Albuquerque City Council to vote on the contract before it is sent to the Mayor for signature. City Councilors are strictly prohibited from taking part in negotiations and changing the contract terms due to a provision in the City’s Labor Management Relations Ordinance §3-2-18, and all the city council cand do is vote to accept or reject the contract as presented.

All police union contract negotiations have been put on hold amidst the pandemic. As a result, the terms and conditions of the expired contract, including who is in the bargaining unit and hourly pay, remain in effect until negotiations can take place at an undetermined date in the future. It’s likely the contract negotiations will not commence until the pandemic is over.

THE NEW MEXICO PUBLIC EMPLOYEES BARGANING ACT

The New Mexico Public Employees Bargaining Act, Sections 10-7E-1 to 10-7E-26 H (NMSA 1978), governs the enforcement of the city’s collective bargaining agreement with the APD police union. The link to the statute is here:

https://www.pelrb.state.nm.us/statute.php

The sections on the “rights of employees”, “rights of employers, ” and “impasse resolutions” are worth noting.

Section 10-7E-5 provides for the rights of public employees:

“Public employees, other than management employees and confidential employees, may form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees without interference, restraint or coercion and shall have the right to refuse any such activities.”

The link to Section 10-7E-5 is here:

https://www.pelrb.state.nm.us/pdf/statutes/10-7E-5_Rights%20of%20public%20employees.pdf

EDITOR’S NOTE: The statute is very clear that “management employees” are prohibited from joining the police union, yet the City has allowed APD Lieutenants and Sergeants to be part of the collective bargaining unit.

Section 10-7E-6 provides for the rights of public employers.

“Unless limited by the provisions of a collective bargaining agreement or by other statutory provision, a public employer may:

A. direct the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate public employees;
B. determine qualifications for employment and the nature and content of personnel examinations;
C. take actions as may be necessary to carry out the mission of the public employer in emergencies; and
D. retain all rights not specifically limited by a collective bargaining agreement or by the Public Employee Bargaining Act [ 10-7E-1 NMSA 1978].”

The link to Section 10-7E-6 is here:

https://www.pelrb.state.nm.us/pdf/statutes/10-7E-6_Rights%20of%20public%20employers.pdf

Section 10-7E-18 of the Employee Bargaining Act provides for union and government impasse resolutions. Impasse Resolutions are where the parties cannot reach agreement on contract terms and ask for mediation and further negotiations on the contested terms.

It is Section 10-7E-18 that provides procedures for impasse and reads in part as follows:

A. The following negotiations and impasse procedures shall be followed by the state and exclusive representatives for state employees:

D. In the event that an impasse continues after the expiration of a contract, the existing contract will continue in full force and effect until it is replaced by a subsequent written agreement. However, this shall not require the public employer to increase any employees’ levels, steps or grades of compensation contained in the existing contract.

The link to Section 10-7E-18 is here:

https://www.pelrb.state.nm.us/pdf/statutes/10-7E-18_Impasse%20resolution.pdf

FEDERAL COURT QUESTIONS ROLE OF POLICE UNION

On Friday, December 4, an all-day status conference hearing was held “virtually” before Federal District Judge James Browning on the Federal Monitor’s 12th Compliance Audit. Upward of 90 people participated via a ZOOM call.

Throughout the December 4 day’s long hearing, Federal Judge Browning asked a number of those who made presentations about the role the APD Union Police union. The same questions on the police union were asked of the Department of Justice Attorneys, the Police Union Attorney and Interim Chief Harold Medina.

POLICE UNION CONTRACT ALLOWS POLICE MANAGEMENT TO BE MEMBERS OF UNION

The Chief, the 5 Deputy Chiefs, Assistant Deputy Chiefs and all APD Area Commanders are “unclassified” positions and they can be terminated “without cause” at any time. They are prohibited from being members of the police union and are management. The Chief serves at the pleasure of the Mayor and Deputy Chiefs and Area Commanders serve at the pleasure of the Mayor and Chief and can be terminated without cause.

APD Lieutenants and Sergeants, Detectives and Patrol Officers are all are “classified” positions and can only be terminated for cause. APD Lieutenants and Sergeants are included in the police collective bargaining unit . Any and all disciplinary actions taken against APD Lieutenants and Sergeants, Detectives and Patrol Officers are governed by the union contract. APD Lieutenants and Sergeants are management positions but are classified positions and can only be terminated with cause. They have due process rights including progressive disciplinary actions and rights of appeal.

POLICE CHIEF CANNOT FIRE CLASSIFIED SWORN PERSONNEL AND BOUND BY UNION CONTRACT

A question asked by Federal Judge Browning was if the APD Chief had the authority to fire any police officer immediately. It appeared as though the Judge wanted to know if the Chief can fire a police officer for clear or obvious police misconduct that is found or reported upon. The answer to the question given by Elizabeth Martinez, Assistant United States Attorney for New Mexico and Interim Chief Harold Medina was no, the chief cannot fire union members without cause.

Judge Browning was told that any disciplinary action against any member of the police union is governed by the collective bargaining unit contract. The police union contract outlines police officers’ personnel rights and remedies, provides for personnel hearings, provides for internal affairs investigations, and provides for progressive discipline and the use of a matrix for discipline available.

LIEUTENANTS AND SERGEANTS

Judge Browning asked the question if APD Lieutenants and Sergeants should be allowed to be part of the police union. No clear response was given by the DOJ and City Officials, but the Police Union Attorney said yes. Interim Chief Harold Medina said he was “pro union”, he has worked with the union President and had no problem with Lieutenants and Sergeants being part of the collective bargaining unit.

Judge Browning asked the question if he could hold the Union in Contempt of Court and DOJ and City Officials gave no clear-cut answer while the Union Attorney said the union has not violated the collective bargaining contract. Judge Browning also raised the prospect of APD’s Internal Affairs Unit be abolished, but gave no inclination if that should be done.

COMMENTARY AND ANALYSIS

The current police union contract expired on June 30, 2020. The City and the Union have now suspended their negotiations because of the corona virus pandemic and the uncertainty of the city’s revenues for the new fiscal year that begins July 1. The union contract negotiations must commence soon. Until a new union contract is negotiated and approved, the terms and conditions of the old contract will remain in effect.

The Police Union no doubt wants to continue the terms of the expired contract, including who is in the collective bargaining unit. There is no real excuse to delay negotiations on the police union contract. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.

The City and the Police Union have ostensibly forgotten or even ignored Section 2.5 of the police union contract that says in part:

“If the City anticipates the implementation of policies or directives related to its agreement discussions with the DOJ that impacts Officers’ terms or conditions of employment, the City will notify the APOA of its anticipated changes and provide APOA the opportunity to meet and confer with the City in a timely manner on the anticipated changes. The commitment will not prevent the APOA from submitting the changes for negotiations when the parties negotiate a successor collective bargaining agreement.”

TERMS TO BE NEGOTIATED

The city should declare impasse with the police union on 3 major terms in the union contract:

1. State law is clear when it says “Public employees, other than management employees … may … join or assist a labor organization for the purpose of collective bargaining.” (10-7E-5 , NMSA 1978) APD Lieutenants and Sergeants are management positions, and for that reason they need to be removed from the union collective bargaining unit and made at will employees.

2. State law is clear that the rights of the city as an employer include “ direct the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate public employees.” (10-7E-6 A NMSA, 1978) The city needs to negotiate terms and conditions allowing the APD Chief to “immediately terminate for cause” under negotiated circumstance, with the immediate terminations subject to appeal to the personnel board for affirmation of termination or reinstatement of employment.

3. Replace hourly wage with salary structure and abolish all hourly pay, time and a half pay, longevity pay and all overtime pay programs.

Following is analysis and commentary on all 3 terms subject to “impasse”:

1. APD POLICE UNION CONTRACT VIOLATES STATE LAW ALLOWING MANAGEMENT POSITIONS OF LIEUTENANTS AND SERGEANTS INTO BARGAINING UNIT

For the last 6 years the APOA Union has been a party to the federal court litigation. As a result, Federal Judge James Browning has “personal jurisdiction” over the union. Federal Judge Browning therefore has the authority to review the police union contract and determine if it conforms to or violates New Mexico State Law.

New Mexico State law is very clear when it says “Public employees, other than management employees … may … join or assist a labor organization for the purpose of collective bargaining.” (10-7E-5 , NMSA 1978) APD Lieutenants and Sergeants are management employees because of their titles, duties and responsibilities over subordinates. Lieutenants and Sergeants need to be removed from the union collective bargaining unit by the Federal Court making them at will employees.

APD is a “para-military” organization and as such the “chain of command” must be honored and the lines of authority must not be blurred to the point where management and subordinates become one and the same for the purpose of enforcing policy. Allowing management positions to be part of employee bargaining unit is a recipe for disaster, which is exactly what has played out with the Court Approved Settlement Agreement (CASA) for the last 6 years.

Sergeants and lieutenants need to be made at will employees and removed from the collective bargaining unit in order to comply with state law that prohibits APD management to join the police union. This will result in 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.

At a very minimum, the City and the Department of Justice need to move for the dismissal of the police union from the federal court proceeding. This will allow APD command staff and management more authority do its job with enforcement of the CASA mandates and implementation of all 271 reforms.

2. AUTHORIZE POLICE CHIEF TO IMMEDIATELY TEMINATE WITH CAUSE

One APD union contract term that is long overdue to be negotiated is to give the APD Police Chief authority to immediately “terminate for cause and without any delay” sworn police who are members of the police union for incidents and conduct that clearly violate APD standard operating procedures and violate civil rights and the use of deadly force.

When it comes to the APD police union contract, the City of Albuquerque has bargained away too many of its rights provided for in Section 10-7E-6 of the New Mexico Public Employees Bargaining Act to “direct the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate” police officers. The prohibition and inability for a police chief to discharge or terminate police officers who have clearly violated people’s civil rights and used excessive force and deadly force helped create the “culture of aggression” found by the DOJ in its investigation of APD.

APD police credibility with the general public is highly questioned when the city and its Chief fail take decisive personnel action in incidents such as the shooting of homeless camper James Boyde. When there is an extensive delay in such terminations, the public perception is that the Police Chief is covering up for APD and one of his officers. A Chief must be given the management authority that come with the title of chief and the authority to remove a police officer who has disgraced the badge with apparent and obvious civil rights violations and “excessive use of force” and “deadly force.”

As a condition of employment, police union members should be subject to immediate “termination for cause and without any delay” for incidents and conduct that are clearly a violation APD standard operating procedures and violations of civil rights as found by the Chief of Police. The union contract can define and outline circumstances and situations the Chief can immediately terminate with cause a member of the union. Immediate terminations by the Chief would be subject to appeal and due process before the City’s Personnel Board for affirmation of the termination or reinstatement of the officer.

The city and police union can negotiate and outline specific instances where immediate termination would be justified and allowed. Examples of conduct or incidents meriting immediate dismissal would be those captured by APD police lapel camera video or citizen cell phones reflecting excessive use of force and deadly force. Another reason for immediate termination would be insubordination and a finding by the Chief of deliberate resistance to the CASA reforms.

3. ABOLISH HOURLY PAY, LONGEVITY PAY, AND ALL OVERTIME PAY PROGRAMS AND NEGOTIATE A PAID SALARY STRUCTURE.

Albuquerque police officers are some of the best paid law enforcement in the country when you take into account their pay, longevity pay incentives, benefits and retirement pay. The average city hall salary for classified city employees is $30,000 to $35,000 a year. The entry level pay for Albuquerque patrolman first class is $58,000 a year.

APD is being investigated by the New Mexico attorney general and state auditor for overtime pay abuse after it was revealed that a number of APD police officers were paid in excess of $100,000 in overtime in addition to their hourly pay. Excessive overtime paid is a red flag for abuse of the system and proof of police resource mismanagement. The overtime gaming system must be stopped.

EXTENT OF THE PROBLEM

In 2019 there were 160 of the 250 top paid city hall employees that were police paid between $107,885.47 to $193,666.40.

There were 32 APD Lieutenants in the list of 250 top paid employees in 2019 earning pay ranging from $108,031 to $164,722. Hourly pay rate for APD Lieutenants is $40.00 an hour or $83,200 yearly. Lieutenants are classified employee and are permitted to be part of the police union and as such are entitled to be paid time and a half for overtime worked under the union contract.

There were 32 APD Sergeants in the list of 250 top paid employees in 2019 earning pay ranging from $109,292 to $193,666. Hourly pay rate for APD Sergeants is $35 an hour, or $72,800 a year. Sergeants positions are classified employee and are permitted to be part of the police union and as such are entitled to be paid time and a half for overtime worked under the union contract.

There were 70 APD patrol officers first class, master, senior in the list of 250 top paid employees in 2019 earning pay ranging from $108,167 to $188,844. Hourly pay rate for Patrol Officers is $29.00 an hour to $31.50 an hour depending upon years of experience. These positions are classified employee and are permitted to be part of the police union and are paid time and a half for overtime worked under the union contract.

There are nearly a dozen different types of overtime programs within the APD. The categories where APD Officers can earn overtime include holiday work, tac-plan initiatives, training, call outs, calls for service, special events, administrative work, investigations, and court appearances. DWI check points and special events like the Balloon Fiesta and security detail for high profile dignitary visits are all events that require an extensive amount of overtime. The police union contract entitles a police officer to be paid “time and a half” when overtime is worked on any given day or week.

SOLUTION TO OVERTIME ABUSE

One guaranteed way of stopping anyone within APD from gaming the system is to abolish the existing system of overtime pay and bonus pay. Sooner rather than later, the city and the APD union need to recognize that being a police officer is not trade work justifying hourly wages, but a learned profession that requires employees to work whatever time is necessary to get a day’s work done that may arise in that day. APD police can be compensated with a decent salary and not merely paid hourly wages.

A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented. As an alternative to paying overtime and longevity bonus pay to APD officers, the city needs do away with APD hourly wages and time-and-a-half for overtime and implement a salary structure based strictly on steps and years of service.

A base salary system for all sworn police officers should be implemented with step increases for length of service. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same. If more time is needed to complete a workload or assignments for the day, the salaried police officer would work it for the same salary with no overtime paid and a modification of shift times for court appearances. Officers would have control over time worked.

APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignment, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear.

Until the APD salary structure is changed, APD will always have Patrol Officers First Class making two, three and even four times their base salary, and emotional burnout will be the norm, not the exception endangering public safety. Until the APD salary structure is changed, you will also have more than a few employees “gaming the system.”

It’s the taxpayer and other city employees who are getting hurt when APD exceeds its budget by the millions and when APD management does not really care about anyone else but APD. When APD exceeds its overtime pay budget, the money has to come from somewhere. That somewhere is usually other city departments affecting other city employees. The mayor, APD management and City Council are being foolish if they do not realize that when APD exceeds its overtime budget, it causes morale issues and resentment within other city departments and employees who are not paid overtime.

FINAL COMMENTARY

The Police Union no doubt wants to continue the terms of the expired contract, including who is in the collective bargaining unit and drag out all disciplinary actions as long as possible. The union policy as embodied in the union contract allows the union to defend its membership and preserve its membership’s employment rights, even under circumstances when officer conduct is clearly a violation of standard operating procedures, civil rights and the unconstitutional use of excessive use of force and deadly force.

The delayed implementation and interference of the mandated 271 reforms by the union has gone on long enough and the time has come for the City and the DOJ to take aggressive action.

There is no real excuse to delay negotiations on the police union contract, even during a pandemic when negotiations can be done virtually. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.

The link to a related blog article entitled “Alan Wagman Guest Column: After 6 Years, Millions Spent, The DOJ, APD, City, Mayor Keller All Continue To Fail At APD Reforms; The Only Hope Lies With Federal Judge James Browning” is here:

Alan Wagman Guest Column: After 6 Years, Millions Spent, The DOJ, APD, City, Mayor Keller All Continue To Fail At APD Reforms; The Only Hope Lies With Federal Judge James Browning

On Friday, December 4, an all-day status conference hearing was held “virtually” before Federal District Judge James Browning on the 12th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). Upward of 90 people participated via a ZOOM call. Interest was high on the heels of the audit report showing that Albuquerque Police Department (APD) reform efforts had “failed miserably.”

Some of the groups with standing to address the court asked Judge Browning to hold the City in “Contempt of Court” or to take control of APD away from the City. Neither of these options currently appears to be in the offing. Instead, DOJ and the City will be submitting a “Stipulated Order” for court approval in early January. There has been no public input into the preparation of the Stipulated Order. Neither the City nor DOJ has offered the amici, or friends of the court, and other stakeholders and opportunity to give input on the Stipulated Order.

ALAN WAGMAN GUEST COLUMN

Alan Wagman is a retired Public Defender attorney in Albuquerque. He served on the city’s Police Oversight Task Force in 2013-14 and continues to work on police reform and human rights issue. He has also worked as a legislative analyst. After the December 4 status conference hearing, Mr. Wagman submitted the below guest column for publication on this blog:

(EDITOR’S NOTE: The opinions expressed in this article are those of attorney Alan Wagman and do not necessarily reflect those of the political blog www.petedinelli.com. Mr. Wagman was not compensated for the column).

On Friday, December 4, Federal District Judge James Browning presided over what could have been the most important status hearing in the Department of Justice (DOJ) lawsuit against the City of Albuquerque (the City). The lawsuit is the DOJ Civil Rights Division answer to the Albuquerque Police Department’s “pattern or practice” of unconstitutional use of force. The hearing was important because it came on the heels of a report from Independent Monitor James Ginger that confirmed what many of us knew – that APD has for the entire 6 years of the lawsuit refused to change its ways and is still refusing.

The time for the Court, DOJ and the City to act is now.

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POST-SCRIPT

THE END OF THIS REFORM PROCESS WOULD BE THE END OF THE BEGINNING; WHAT IF, BY SOME MIRACLE, APD SUDDENLY CAME INTO COMPLIANCE?

If suddenly APD were to comply with the settlement agreement and the lawsuit went away, here is what APD would look like:

However, APD would do all this without beating anyone up or killing anyone. More work lies ahead. We need not wait on Judge Browning, the DOJ, or the City to begin.

This blog article is about political plagiarism. On December 12, 2020, the Albuquerque Journal published a front page story with the banner headline “City seeking to hire chief of public safety.” The link to the Journal article is here:

https://www.abqjournal.com/1526078/city-seeking-to-hire-chief-of-public-safety.html

According to the front-page story, Mayor Tim Keller is looking to hire a “chief of public safety who would oversee the chiefs of the police department, the fire department and the office of emergency management”. According to the posted job description:

“in addition to overseeing the three department heads, the new hire must coordinate with the Chief of Police to provide strong reform-minded leadership as the department works to achieve and maintain compliance with the Court Approved Settlement Agreement dictating the police reform effort.”

City spokesperson Jessica Cambell had this to say:

“The Chief of Public Safety would also play an active role in APD reform, and serve as a policy and regulatory expert.”

May 1, 2018 DINELLI BLOG ARTICLE

Over two years ago om May 1, 2018, political blog www.PeteDinelli.com posted an article that proposed the EAXACT same thing that Keller is proposing, except with the title “Public Safety Commissioner” and with greater detail.

Below is the blog article posted:

Create Department Of Public Safety; Abolish APD Internal Affairs; Create Salary Structure

Posted on May 1, 2018

On April 1, 2018 Mayor Tim Keller submitted his first budget to the Albuquerque City Council.

Mayor Keller should use some the considerable political capital given to him with his landslide win and seize the opportunity to make real change with the creation of a Department of Public Safety before the opportunity completely vanishes.

The link to the article is here:

https://www.petedinelli.com/2018/05/01/create-department-of-public-safety-abolish-apd-internal-affairs-create-salary-structure/

COMMENTARY AND ANALYSIS

“Political plagerism” is one of the highest forms of flattery but anyone who engages in it without quoting the source risks being called out on it. There have been at least 3 occasions where I have met with Mayor Tim Keller in private twice before he was elected and once after he was elected. In one meeting, I actually gave him a tour of the downtown area that I grew up in.

It was in January, 2018, I met with Mayor Keller at his request to discuss a number of issues he was faced with including the ART bus project, the Albuquerque Police Department (APD), the Department of Justice reforms and economic development. We were followed and accompanied by his APD police detail dressed in civilian clothes.

The biggest issue I discussed with him was the Albuquerque Police Department (APD) and the Department of Justice reforms. It was during this meeting I complimented him on his recent appointment of Former New Mexico State Treasurer James Lewis to help with the DOJ reforms. I also suggested the creation of the Department of Public Safety and abolishing the Internal Affairs Unit, but he showed no interest. I also suggested that he abandoned the ART bus project and file suit against the bus manufacturer.

After our meeting ended, I asked Keller if he had any more questions or if he had any objections to what I had been writing in the blog and what was the reason for our meeting. Keller responded he had no more questions, he said I had covered what he wanted to know my thoughts on. Mayor Keller told me that I was a very “prolific writer” and then Keller asked that I be fair with my blog articles. With his last comment to be fair, it became very clear the real reason why he wanted to meet with me in the first place.

On May 1, 2018, the blog article was published and emailed directly to Mayor Tim Keller but he never responded.

The Albuquerque Journal’s article adds insult to injury when it reports on the fact that Republican Party Operative and political hack Darren White was the last Chief Public Safety Officer for the City. He was my successor and White essentially did anything he could to destroy programs I had implemented including the highly successful Safe City Strike Force. At least the paper reported White was forced to step down in 2011 following a controversy related to a crash involving his wife.

Many thanks to the Albuquerque Journal for publishing my guest column on APD pay abuse entitled “Stop Gaming Police Overtime, City Should switch to salary structure for officers”

Below is the guest column followed by the link to the Albuquerque Journal:

“APD is being investigated by the New Mexico attorney general and state auditor for overtime pay abuse after it was revealed that a number of APD police officers were paid in excess of $100,000 in overtime in addition to their hourly pay. APD paying excessive overtime to a few is nothing new and has gone on for years. Historically, time and time again, year after year, the temptation to be paid two, three, even four times more a year than what your base pay is by padding hours worked is way too great. Excessive overtime paid is a red flag for abuse of the system and proof of police resource mismanagement. The overtime gaming system must be stopped.

Negotiations for a new APD union contract have been suspended because of the pandemic. If and when the city and the APD union return to the bargaining table to negotiate a new contract, the abolishment of hourly wages for APD sworn officers and implementation of a salary structure should be the first negotiated item for the new contract.”

The link to the Albuquerque Journal is here:

https://www.abqjournal.com/1525726/stop-gaming-police-overtime.html