On February 4 and February 11, Channel 7 broadcast highly critical reports of the Department of Justice consent decree in its Target 7 reporting. Both reports singled out the Federal Monitor and the reform process under the Court Approved Settlement Agreement (CASA) as the reason for the city’s spike in violent crime rates.
Links to related blog articles on the KOAT TV news stories are here:
In the February 11 Target 7 report Shaun Willoughby, President of the Albuquerque Police Officers’ Association said:
“The whole [reform effort] system is set up to fail and the taxpayers and the people that live in this community like me and my family are the ones that are taking the brunt of [violent crime]. … Really look at this process. … It is absolutely out of control. … The entire department and the processes within it are out of control. Your officers are running out the door. Really look at every single state or agency that’s been involved in this process. … What is happening? Did it bring harmony and trust with the community? I don’t think so.”
Willoughby is blaming the Court Approved Settlement Agreement (CASA) and its mandated reforms for the city’s high crime rates in Albuquerque. It’s false narrative.
This blog article is a deep dive analysis of Federal Consent Decrees in general with a discussion of the questions raised as to Albuquerque’s consent decree.
FEDERAL JUDGE’S LINE OF QUESTIONING
During the February 26 hearing on the Federal Monitor’s 12th status report on compliance, Judge James Browning, who oversees the consent decree, took note of the KOAT TV news reports as well as related Albuquerque Journal articles. The Judge disclosed that the court had received correspondence from citizens.
Judge Browning asked the attorneys representing the City, the DOJ and the Police Union point blank if they thought that the Court Approved Settlement and the reforms mandated were the cause of the increase in City’s high crime rates.
According to a transcript of the February 26 hearing, Judge Browning asked the following question of DOJ United States Attorney Paul Killebrew:
“I think this week we saw on the front page of the Albuquerque Journal that our violent crime rate is rising, and concerns about that. And there has been some suggestion by people in the news media and perhaps the police association and others, letters I’ve received, that this consent decree is the cause of crime in the community. … So what’s your thoughts about the impact of this consent decree and perhaps additional costs as a result of this EFIT on the rising violent crime in Albuquerque?”
Mr. Kilebrew responded as follows:
“… [W]hether a city’s investment in a consent decree is causing crime, I am dubious about that prospect. The research that’s out there which has looked for correlations between crime trends and cities that have consent decrees does not show this kind of correlation. So I am doubtful that this correlation really exists. For decades and decades it was a department that did not invest in accountability of its officers. They weakened its [Internal Affairs] IA structure, they did not appropriately staff its IA department, and so now, when they’re under a court order that requires those structures to have integrity, it requires a very large up-front investment, larger than they have made in the past. And that is simply, again, not negotiable. It’s unfortunate that we’re in a situation where they now have to make this large investment, but it was unavoidable ultimately if they’re going to comply with the law.”
Judge Browning asked the Police Union Attorney Fred Mower if the consent decree was causing the city’s high crime rates in the following manner:
“… All right. Let me ask you, Mr. Mowrer, you were very careful both in your issues and concerns and then your motion opposing the joint motion not to get into this area, but I have watched Mr. Willoughby’s comments publicly, and I think they’ve been most pronounced by Nancy Laflin on Channel 7, that the consent decree and then, in addition, this additional layer that we are laying on top with the EFIT is contributing or even a primary or major cause of the rise of crime in the community. Is that the position of the police association or your views, that that’s the reason that crime is rising is because of this consent decree or this EFIT?
Police Union Attorney Fred Mower answered the court as follows:
“Well, Your Honor, I think to simplistically state it like that, no. I don’t think the APOA can take the position that this consent decree that’s gone on, as Mr. Killebrew has indicated, going on seven years now, and the monies, the millions of dollars that have been spent, and now this new proposal with unidentified costs is a driver of what the crime rate is happening in this town. … I can’t say, and I don’t think it’s easy to prove that the money being spent here is what’s driving crime in Albuquerque. I think we’re like a lot of major cities. We’re facing dynamics because of just the city, closeness to cartel issues, closeness to issues concerning violent crime in a lot of major cities.
JUDGE BROWNING: “Well, that was going to be my next question. You hang around with a lot of policeman in a lot of courtrooms. What do you think the cause of the rise of crime in Albuquerque and particularly violent crime is? … What’s your thoughts … as to why we’re having a rise in crime here?”
MR. MOWERY: “Your Honor, as I’ve kind of indicated, I believe in fairness to all. There are multiple factors. I would say that the last one you just raised is an issue; that there is — the lack of bail bonds and quick release of individuals who are accused of violent crimes is contributing. I think the access and lack of control of arms, weapons, is a problem. I think that — and I hate to go this broad, but, Your Honor, I think there is a breakdown in our society in some ways of our morals, discipline, and control which is contributing. I think the proclivity of drugs present in the city of Albuquerque is contributing to this. There is a factor of mental illness in the city of Albuquerque. There are — I know you’ve seen, Your Honor, as you drive the city streets a lot of homeless people downtown. And all big cities have this problem. But I think there are multiple, multiple factors that are contributing to this, and that’s just a very short list. … ”
The Police Union Attorney Mowery made it clear he was not speaking for the Union President but for his client the Police Union itself. The police union attorney’s response came as a surprise to many in that it was Police Union President Shaun Willoughby who made the serious accusation the CASA reforms are responsible for the city’s high crime rates. Sources have confirmed that the Union President and union supporters solicited Channel 7 to do both investigative reports providing the station with the false narrative.
Albuquerque City Attorney Esteban Aguilar had this to say about the accusation that the consent decree was causing an increase in crime:
“… I want to be sensitive to the comments that we hear publicly that consent decrees add or increase crime in a particular area and that monitors in general have their own financial incentive for changing the bar or prolonging the process. That isn’t happening right now. You know, I want to be very clear that we do not see that happening. What we see are issues with the review process. As I’ve indicated before, especially to members of the community, the monitor and his team are officers of the Court and we would expect that they will continue to interact with the parties and with the Court with a duty of candor as officers of the Court. If that were not to be the case and we were to find information that would reflect an ulterior motive or an improper motive, we would address that with our partners. That isn’t going on right now. … ”
…
The consent decree has been in place for six years, or a good portion of the beginning phases of that. The APD had not bought in and was not, in my view, taking steps to fully and faithfully execute its obligations under that agreement. The City reset that in 2017 [under the Keller Administration], and essentially started over. ”
CONDEMNATION OF ATTORNEYS AND THE COURT
On March 8, in an article published in the on-line news ABQReports, one police union sympathizer condemned all the attorneys involved with the Federal Court Approve Settlement Agreement (CASA). The commentator condemned the Albuquerque Police Officers Association attorney, the DOJ attorney, and the City Attorney for denying that the DOJ consent decree has caused the rising crime in Albuquerque. What was reprehensible was the condemnation of the judicial system when the commentator wrote:
“If you have ever been in a courtroom you know that justice and truth are usually absent from the building. Attorneys in a courtroom are more like characters from a Shakespearean play, trying to feed egos, dodge direct questions and craft answers of appeasement. I don’t believe anything any attorney tells me when they are in a courtroom. It’s just a stage play and drama; justice and truth are not the main players.”
…
Has the DOJ consent decree added to Albuquerque’s crime issues? Yes, but it is only part of the problem.
Why is the DOJ consent decree adding to Albuquerque’s crime woes? One obvious reason is that when you have more detectives investigating other police officers for frivolous infractions than you have detectives trying to solve homicides, there is a problem. It seems that those running the consent decree believe that APD officers are more dangerous to the community than the person(s) who murdered four people and left them to bake in the sun at the airport.
I believe the consent decree has caused some APD officers to slow down getting to dispatches and to not act when they need to. Just look at Dr. Ginger’s “catastrophic” reports where he nitpicks the slightest of issues. Making mountains out of molehills, molehills that end up getting officers disciplined and making their job impossible to do. It’s easier for an officer to take a report after the mayhem has finished than to arrive and use force to stop the mayhem from continuing. … Officers fear that doing their job, will cause them to lose their job. … .
The link to the full ABQReport commentary column is here:
https://www.abqreport.com/single-post/judge-browning-needs-to-hear-this
EDITOR’S COMMENTARY
In the interest of full disclosure, the editor of https://www.petedinelli.com/ is currently a fully licensed New Mexico attorney who has been practicing law for 42 years predominantly as a prosecutor and trial attorney having practiced in State and Federal Courts. If “justice and truth are usually absent from the [courthouse] building” and “justice and truth are not the main players” in a courtroom as asserted in the ABQReports article, then where will you find it? In a courtroom, people are placed under oath to tell the truth and can be prosecuted for perjury and evidence must be presented.
You’re sure hell are not going to find “justice and truth” on the streets of Albuquerque. You’re sure hell are not going to find “justice and truth” behind an APD badge worn by someone who ignores and has no respect constitutional rights of others. You’re sure hell are not going to find “justice and truth” from someone behind a badge who wans to be the judge, jury and executioner of the mentally ill they encounter, mentally ill who pose a danger and a threat only to themselves, which is exactly what brought the United States Justice Department (DOJ) here in the first place.
From 2006 to 2011, the five years before 2 APD Detective killed Christopher Torrez in his backyard who suffered from schizophrenia, a shooting that resulted in a $6 million dollar judgment against the city, APD shot 38 people, killing 19 of them. More than half were mentally ill. At the time of the Torrez shooting the rate of fatal shootings by APD was 8 times that of New York City. It is shootings like these that brought the Department of Justice to the city to investigate APD and found a pattern of excessive use of force and deadly force and a “culture of aggression”.
https://www.newyorker.com/magazine/2015/02/02/son-deceased
Over the past 7 years, the City of Albuquerque and Bernalillo County have paid out large judgments costing millions, especially for police use of deadly force and deadly force cases.
Just 4 cases have cost the City of Albuquerque $26,318,000 in out of court settlements for law enforcement use of deadly force cases. There have been 5 Bernalillo County Sheriff Office (BCSO) cases settled by the county for $8,595,000. Combined, the City of Albuquerque and Bernalillo County have paid out $34,913,000 or $7,913,000 greater than the George Floyd case, but settling 9 cases.
A link to a related blog article on payouts in cases can be found here:
CONSENT DECREES
The claim is false that APD’s Court Approve Settlement Agreement is the cause of city’s increases in crime. The false claim reflects a level of ignorance of just how consent decrees work.
An academic report found an uptick in crime among the 31 cities that came under federal oversight between 1994 and 2016. The study also found those increases were temporary and diminished into statistical insignificance over time. Stephen Rushin, the study’s co-author and a professor at the Loyola University Chicago School of Law had this to say:
“To say that … [consent decrees] don’t work, at minimum is misleading. … I don’t think anyone, even folks who have spent their life doing this, would think it’s perfect. But I think to say that it just doesn’t work and everyone knows it, that’s not true. … It would be fair to say there’s some empirical support for the claim that consent decree cities have seen maybe an uptick in crime relative to unaffected cities. … But, again it’s more complicated because our research … found that after a few years, that relationship goes away.”
According to Professor Rushin, other experts said that crime rates aren’t the only factor to consider when weighing the potential costs and benefits of consent decrees. For instance, a widely cited study from the University of Texas-Dallas found that cities operating under such agreements saw a decrease in civil rights lawsuits against police. The link to the University of Texas-Dallas study is here:
https://onlinelibrary.wiley.com/doi/abs/10.1111/1745-9133.12295
Professor Rushin went on to say:
“These [crime] numbers are not destiny and there are good examples of cities as big as Chicago going through these kinds of very disruptive processes and coming out the end a much safer and seemingly more constitutional police department”.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757809
One example is Los Angeles, which operated under a consent decree between 2000 and 2013. A 2009 report from the Harvard Kennedy School found that crime did rise in the first couple years of the consent decree, but at a pace no faster than it did across all of California.
http://lapd-assets.lapdonline.org/assets/pdf/Harvard-LAPD%20Study.pdf
ARGUMENTS PRO AND CON
Some have claimed that consent decrees lead to reductions in police morale, reduce the proclivity of police officers to act proactively, and over time cause crime rates to rise.
Others have argued that consent decrees offer one of the only effective remedies to addressing police compliance with civil rights.
https://chicago.suntimes.com/news/what-is-a-consent-decree/
“Studies of consent decrees in Los Angeles and Pittsburgh suggest that when police leadership embraced the decrees, there is some increase in public satisfaction with police services with no evidence of harmful effects on police morale. The evidence also shows that there is no increase in crime or reductions in arrests after these decrees were put into place.”
“In Cincinnati, the results from an evaluation of a collaborative agreement, a less restrictive agreement than a consent decree, found that improvements in community satisfaction after the formation of the collaborative agreement and several reforms started by the police department. Crime rates did not drastically change after the collaborative agreement was established. This evidence, however, is largely descriptive – meaning that we can only observe crime, arrests, and reports of satisfaction with the police before and after consent decrees are put into place.
We do not have an adequate comparison group of agencies that could have been placed under a decree but were not. The unknown reasons why certain police agencies ultimately get placed under consent decrees means it is very difficult to draw strong conclusions about their impact on the police and communities they serve.
What is clear, however, is that consent decrees by their very design place a number of mandatory reforms on police agencies, typically requiring new training of officers, hiring criteria, promotion criteria, internal review of officers, and even different forms of outside scrutiny, such as more extensive auditing of data collected by police departments. These changes typically upgrade police department standards. Whether these changes lead to improvements in police service deliver is an open question. But clearly, the changes are often substantial and require a lot of work by the police agency responsible.
EDITORS NOTE: Mandatory reforms, training in constitutional policing practices, hiring criteria, promotion criteria, Internal Affairs review of officers conduct , and the outside scrutiny of officer involve shootings are all required under the Albuquerque’s consent decree.
In recent years a number of police departments have come under scrutiny for high profile shootings or killings of civilians. The Baltimore Police Department and the Chicago Police Department both have entered into court ordered settlement agreements in the aftermath of high-profile events that triggered massive civilian protests.
EDITOR’S NOTE: APD experienced extensive scrutiny after the 2010 shooting of Kenneth Ellis III, a former army infantryman who served in Iraq and who suffered from service-connected post-traumatic stress disorder and the 2014 shooting of homeless camper and mentally ill James Boyd who was shot and killed by APD in the Sandia Foothills. The Ellis shooting resulted in a $10.5 million dollar jury judgment against the city. The Boyd shooting resulted in a $5 Million dollar settlement with the Boyd family and a criminal jury trial of two SWAT officers with the jury unable to reach a verdict and the charges dismissed against both officers.
“Some have argued that the police in these agencies have become less aggressive in the enforcement of crime, and that the climbing crime rates in these cities is the result of consent decrees and other forms of outside intervention. This claim, however, can be disputed because court orders were put in effect long-after crime began to rise in Baltimore and Chicago. “
https://crim.sas.upenn.edu/fact-check/does-legal-regulation-police-impact-crime
BENEFITS OF CONSENT DECREES
“Researchers in another study looked at 23 police departments that agreed to consent decrees between 1990 and 2013, including Los Angeles, Washington, D.C., Detroit, New Orleans, Cleveland as well as suburban departments such as Montgomery and Prince George’s counties in Maryland. The study found the average maximum reduction in the risk for litigation was as much as 36%, usually while the consent decree is in effect, but that lawsuits start to trend back up once the decree lifts.”
https://www.washingtonpost.com/news/true-crime/wp/2017/05/24/__trashed/
COMMENTARY AND ANALYSIS
APD has been struggling for over 6 years with trying to implement the DOJ consent decree reforms. After six years and millions spent, APD still has a long way to go to be compliant under the settlement before the case can be dismissed. The reforms were to be fully implemented in 4 years, and after 2 years of compliance in 3 areas determined to be 95% , the case was to be dismissed. APD management, the police union and rank and file have essentially done whatever they could do, and at different times, to interfere with the reform efforts.
The biggest failure made clear in Federal Court Monitor’s 12th report filed on November 2 relates to “Operational Compliance”. Operational Compliance is defined as “managements adherence and enforcement to APD policies in the day-to-day operation of APD” . Operational compliance is where line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and upper command staff. In other words, APD “owns” and enforces its own policies and without expecting the Federal Monitor to do it for them.
CITY AND APD MANAGEMENT REPONSIBLE AND “RUN CONSENT DECREE”
The Federal Monitor and the Federal Judge assigned the case are not “running the consent decree” as has been argued. Such an accusation is at the very least misleading and at the very worse just a lie. The consent decree is very specific that the Federal Monitor has absolutely no management nor control over APD nor any of APD’s personnel and cannot discipline city personnel and neither can the Federal Judge.
The Federal Judge assigned the case has not issued any order appointing a receiver to take over APD and to manage APD. The City and APD have not been taken to task by the Federal Judge nor found in contempt of court for violation of the settlement, even though APD and the City have come close at least twice. The first occasion was in 2017 when the Assistant APD Chief secretly recorded the federal monitor to try and have him removed. The second and most recently was when the DOJ was considering filing a motion for contempt of court for APD’s failure to conduct proper use of force investigations but the City and DOJ agreed to hire of team of experts to review use of force incidents by APD and train APD.
It is APD’s management that is responsible for implementing the mandated reforms agreed to by the City and the DOJ, not the Federal Monitor nor the Judge. The Federal Monitor’s sole responsibility is to gather data, audit the progress and report to the Court. At this point, the Federal Judge merely reviews the 3 compliance levels of the settlement and will determine ultimately if and when the case should be dismissed.
DERELICTION OF DUTY
The problem always has been and continues to be that APD management, the police union and its membership have not fully embraced the reforms. In fact, all three have resisted them from time to time, at different times, as has been repeatedly documented by the federal monitor in at least 4 reports over the last 3 years.
Sean Willoughby, the union president, has said that 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 as articulated by the union president. It’s likely the union feels what is interfering with police from doing their jobs is the mandatory use of lapel cameras, police can no longer shoot at fleeing cars, police can no longer use choke holds, police need to use less lethal force and not rely on the SWAT unit, police must use de-escalating tactics and be trained in crisis intervention, and management must hold police accountable for violation of standard operating procedures.
It is a dereliction of duty if APD officers are intentionally and willfully “slowing down getting to dispatches and to not act when they need to” act. It is a dereliction of duty for an officer to simply refuse to act, refuse to take a call for service or intentionally delay the time to respond to a 911 emergency call, or refuse to make an arrest when the officer sees a crime in progress or has probable cause to make an arrest. The argument that “Officers fear that doing their job, will cause them to lose their job” is a feeble attempt to undercut and discredit the reform process in the hopes of bringing it to an end.
Simply put, if a police officer does their job and follows constitutional policing practices and procedures as they are required to do, there is nothing to fear and there will be no discipline let alone termination. If any police officer does not want to do their job and not follow constitutional policing practices as mandated by the consent decree, they are part of the problem and need to leave APD or find another line of work.
REASONS CITY’S CONSENT DECREE NOT CAUSING CRIME INCREASE
The APD Police Union and supporters have gone to questionable lengths contacting the news media to discredit the City’s 6-year-old settlement with the Department of Justice (DOJ) and the 271 mandated reforms alleging the consent decree is the cause of the City’s increase in violent crime and saying police cannot do their jobs.
There are 3 very strong reasons that the argument the City’s consent decree is causing an increase in violent crime in Albuquerque is false:
FIRST: Critics of the DOJ settlement falsely assume without definitive data that crime has increased because of the consent decree. Albuquerque’s increases in violent crime can be attributed in part to the national trend in violent crime. FBI statistics reveal that Albuquerque has the dubious distinction of having a crime rate 194% higher than the national average. The FBI has never linked the city’s consent decree to the rise in violent crime nor keeping APD from doing its job.
SECOND: Virtually all DOJ consent decrees are tailored to individual community needs. All other consent decrees deal with racial profiling and “systemic racism” and the use of excessive force and deadly force. Albuquerque’s consent decree is totally different. The DOJ investigation of APD did not deal with “racial profiling” nor “systemic racism” but with APD’s use of force with persons suffering from acute mental illness and in crisis. The DOJ found APD’s policies, training, and supervision failed to ensure that police encounters with people having psychotic episodes did so in a manner that respected rights and that were safe.
THIRD: Arguing that violent crime has increased in other cities that have consent decrees is a diversion tactic . It is a tactic used by police unions to interfere with the reform process of consent decrees. On June 6, 2020, a New York Times published the “How Police Unions Became Such Powerful Opponents to Reform Efforts”. According to the article as demands for police reform have mounted across the country in the aftermath of police violence or deadly shootings, unions have emerged as significant roadblocks to police reforms and change. The greater the political pressure for police reform, the more defiant police unions become in resisting police reforms. Police unions aggressively protect the rights of members accused of misconduct. Police unions can be so effective at defending their members that cops with a pattern of abuse can be left untouched, ostensibly undisciplined and they remain on the force.
The link to the entire New York Times article is here:
https://www.nytimes.com/2020/06/06/us/police-unions-minneapolis-kroll.html
CONCLUSION
Instead of resisting the consent decree, APD management, the police union and police officers must embrace the reform effort. The union and its media sympathizers also need to knock it off with attempting to influence the judge by use of the media to send the Federal Judge a message. The union attorney is more than capable of filing pleadings in support or opposition of the CASA, present evidence under oath to the Judge and make argument in a court of law.
Only until APD becomes in complete compliance will APD be able to fight crime without violating people’s civil rights and thereby allow the dismissal of the DOJ consent decree. One thing for certain is that only APD management, the police union and all APD police officers can make the consent decree actually work and have the court dismiss it sooner rather than later.