On March 2, the Albuquerque Police Department (APD) Compliance and Oversight Division filed its “13th Progress and Status Summary Report” in the case brought by the Department of Justice (DOJ) against the city and the Albuquerque Police Department (APD) for excessive use of force and deadly force. It was in April, 2014 that a DOJ investigation found a culture of aggression within APD. APD and the City for over 6 years have been struggling to implement the Court Approved Settlement Agreement and the 217 mandated reforms.

The parties entered into a Court Approved Settlement (CASA) that mandates 271 reforms that the Federal Monitor audits for compliance. This blog article is a heavily edited version of the Executive Summary that provides the highlights of the 13th report. It should not be considered as all inclusive. The link to the full 146 page 13th progress report is here:

https://documents.cabq.gov/police/reports/department-of-justice/thirteenth-apd-progress-report.pdf

EDITED EXECUTIVE SUMMARY

The 13th Progress report was prepared by the Albuquerque Police Department Compliance and Oversight Division to provide documentation and data to support the 12TH Independent Monitor’s Report, recommendations, APD’s actions in response to the auditor’s recommendations covering the time frame August 1, 2020 to January 31, 2021.

“ There are two hundred seventy-six (276) paragraphs in ten sections within the CASA with measurable requirements. Compliance is measured by three levels (primary, secondary, and operational). In this reporting period, key efforts to meet compliance requirements have been addressed by APD throughout all ten sections of the CASA including:

Use of Force; Specialized Units
Crisis Intervention
Policies and Training
Misconduct Complaint Intake
Investigation and Adjudication
Staffing, Management and Supervision
Recruitment Selection and Promotion
Community Engagement and Oversight
Assessing Compliance.”

EDITOR’S NOTE: There are 3 compliance levels that are audited for compliance:

1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there must be operational reports, disciplinary records, remands to retraining, follow-up, and revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 3 of the compliance areas, and maintains compliance for 2 years, the case can be dismissed.

“[At] the end of the … [August 1, 2020 to January 31, 2021] reporting period, APD’s compliance levels were:

Primary Compliance: 100%
Secondary Compliance: 91% and
Operational Compliance: 64%.”

INTERNAL AFFAIRS PROFESSIONAL STANDARDS

In late 2020, APD began evaluating whether to restructure Internal Affairs Professional Standards Division and Internal Affairs Force Division into one division. The Monitor recommended that APD make necessary improvements to intake/adjudication and investigative processes first, then structure the divisions around the processes. To address intake/adjudication and investigative processes, APD requested technical assistance from the Monitor in two areas:

1. Internal affairs intake/adjudication
2. Force investigations processes.

SPECIAL OPERATIONS DIVISION

“In January 2021, the Interim APD Chief approved 25 detectives for the division to investigate levels 2 and 3 use of force cases. All the Special Operations Division were found to remain in Operational Compliance. A change in Special Operations Division command began on December 21, 2020. Standard operating procedures regarding Special Operations Division activities continue to be reviewed annually. The Special Operations Division continues to utilize Risk Assessment Matrices for pre-planned warrants, and After-Action Reports (AAR) are now After-Action case files containing more comprehensive information applicable to the tactical activation, and are used for review and documentation purposes.”

INDIVIDUALS IN MENTAL HEALTH CRISIS

“APD continues to develop, implement and support integrated, specialized responses to individuals in mental health crisis through collaborative partnerships with community stakeholders, specialized training, and improved communication and coordination with mental health professionals. APD has continued to meet remotely during the pandemic with the Mental Health Response Advisory Committee (MHRAC). Meetings were held every month during this monitoring period. Regular topics included the continued planning of the new Albuquerque Community Safety (ACS) Department and the gateway shelters.”

MENTAL HEALTH RESPONSE ADVISORY COMMITTEE

“Other topics included Albuquerque Fire and Rescue’s Wellness Check program, ongoing concerns with New Mexico’s on body camera law for law enforcement, the release of recorded footage, the impact of COVID on services, changes to the mobile crisis team program and a presentation of collected APD data on mental health interactions. The Mental Health Response Advisory Committee currently has two subcommittees, one focusing on information sharing and emerging resources for those living with behavioral health issues and a training subcommittee that evaluates and provides feedback on all APD behavioral health training.

Topics covered by the information sharing/resource subcommittee included building a COVID specific version of the APD resource card, an introduction to the Policy and Procedures Section of APD, and discussion of a standalone Certificates for Evaluation policy. The Training subcommittee covered updates to the Crisis Negotiation Team training being developed by the SOD, Handbook updates for the Behavioral Sciences Section (BSS), changes to the Enhanced Crisis Intervention Team training and Law Enforcement Assisted Diversion training delivered to all APD officers.”

TRAINING ACADEMY

“In September 2020, APD transitioned to temporary acting leadership at the Training Academy. In the past, the Department of Justice and Independent Monitoring Tram have been critical of APD’s curriculum standards and proposed bringing in an experienced educator to oversee curriculum development to work with both civilian and sworn personnel.

In December 2020, APD announced that the department was developing a Detective Academy, which current and future detectives will be required to attend. The course will include trainings such as Interview and Interrogation, Crime Scene Management, Courtroom Preparation and Procedures, Search and Arrest Warrants, Constitutional Policing, Felony Investigation and Case Preparation, Crimes Against Children Unit (CACU), Child Abuse Response Evaluators (CARE), and Electronic Devices, with a tentative training to be conducted in Summer 2021.”

INTERNAL AFFAIRS

“Internal Affairs continues to improve the quality and timeliness of investigations involving department personnel through increased oversight and accountability. The Department of Justice (DOJ) has established a more cohesive relationship with the Internal Affairs and meets biweekly to provide status updates on internal affairs investigations. The increased communication with DOJ demonstrates APD’s willingness to be transparent and accept feedback to strengthen the internal affairs process.”

AUTOMATED LINE INSPECTION PROCESS

“In an effort to improve department-wide inspections and audit processes, APD worked with the City’s Department of Technology and Innovation (DTI), Enterprise Resource Planning (ERP) team to implement a more user-friendly and automated line inspection process. The new line inspection form will auto populate data from source systems, reducing data entry error from manual entries and increasing efficiency in completing the inspection process.”

LIEUTENANT WEAPON INSPECTION

“APD continues to audit both the monthly line inspection forms and criminal complaint and juvenile statements of probable cause to ensure close and effective supervision of officers. Beginning January 1, 2021, a pilot phase for the Lieutenant Weapon Inspection process was initiated in the Valley Area Command and the SOD. The Lieutenant Weapon Inspection serves as a second level review verifying the randomly selected officer’s department issued weapons match his/her property card and the officer is carrying department authorized ammunition.”

COMMUNITY ENGAGEMENT APPLICATION

“A new community engagement application has been created and is currently in a test phase It is intended to increase oversight and accountability of officers’ efforts to address community concerns. Supervisors will be able to view reports relating to officers’ participation in community events and activities and ensure concerns are resolved.”

POLICE OFFICER RECRUITMENT

“In Fall 2020, APD initiated a new marketing campaign for recruiting officers. In the past, APD recruiting advertisements focused on specialized units such as SWAT or K-9 Units to draw in applicants. APD has changed recruitment focus and sees the value in including the community’s idea of the ideal officer and the attributes one must possess. Those attributes include but are not limited to, have patience, be respectful, recognize self-bias, as well as possess both a human side and a protective side and know the difference when to use each.”

BEHAVIORAL SCIENCES SECTION

“The Behavioral Sciences Section (BSS) provided training to all supervisors and acting supervisors in November and December 2020. The training focused on BSS’s role in providing mental health services to include minimizing the stigma, addressing confidentiality, common stressors, warning signs of officer distress, self-referral vs. mandated referrals and evaluations after critical incidents/officer involved shootings. BSS strives to promote the importance of mental health wellness and self-care to sustain viability both professionally and personally.”

COMMUNITY OUTREACH

“In November 2020, along with the City of Albuquerque’s Office of Equity and Inclusion, APD began developing the Community Ambassador Program. This program is comprised of APD officers who serve as ambassadors or liaisons, connecting diverse communities and the police department. APD wants to reach our diverse community groups throughout the City in an effort to bridge the gap and help build partnerships, better communication, and understanding amid these communities and the police department. It is through such efforts that APD can enhance APD’s community policing philosophy. Twelve (12) ambassador applicant officers along with six (6) additional volunteer officers attended the City’s cultural sensitivity training in mid-January 2021 with additional anti-racism training scheduled for the end of January 2021

APD continues to be an active participant in the development of the ACS Department, and actively pursues partnerships with amici and other groups such as the Black New Mexico Movement (BNMM), Burque Against Racism, and Commission of the Deaf and Hard of Hearing.”

KEY STEPS TAKEN BY APD AND CITY ADMINISTRATION

The 13th report provides a detailed chronology of key steps taken by APD and programs developed by APD and the City Administration. The Department of Justice and Independent Monitoring Team have been very critical in the past of APD’s ability to produce curricula and proposed bringing in an experienced educator into an oversight position to work with both sworn and civilian personnel.

A very detailed chronology of key steps taken and programs initiated by APD and City Administration can be found on pages 8, 10 and 11 of the report:

https://documents.cabq.gov/police/reports/department-of-justice/thirteenth-apd-progress-report.pdf

USE OF FORCE PRICIPLES OUTLINED

The 13th Progress and Status Summary Report prepared by the APD Compliance and Oversight Division outlines the mandatory Use of Force Principals for APD sworn police. After the use of force principals are outlined, data is provided on the 3 levels of compliance. The use of force principals merit review and are as follows:

“Use of force by APD officers, regardless of the type of force, tactics, or weapon used, shall abide by the following requirements:

i) immediately following a use of force, officers, and, upon arrival, a supervisor, shall inspect and observe subjects of force for injury or complaints of pain resulting from the use of force and immediately obtain any necessary medical care. This may require an officer to provide emergency first aid until professional medical care providers arrive on scene.” (page 12.)

PRIMARY, SECONDARY AND OPERATIONAL COMPLIANCE LEVELS REPORTED

Immediately after the listing of the Use of Force principals, the 13th Progress and Status Summary report delves into the individual paragraphs of the Court Approved Settlement Agreement (CASA) and provides compliance levels at pages 12-74. Pages 75 to 146 of the report consists an Appendix that provides detailed “score cards” and data collected by the Monitoring Team.

The 13th Progress and Status Summary Report prepared by the APD Compliance and Oversight Division concludes with a single short paragraph:

APD remains committed to implementing and sustaining the requirements of the CASA. The progress made during this reporting period highlights the Department’s ability to work collaboratively with stakeholders to implement positive change. Through guidance and feedback from the IMT and DOJ, APD will continue to work towards full operational compliance in all CASA paragraphs.

COMMENTARY AND ANALYSIS

The APD Compliance and Oversight Division failed to report and highlight just how bad APD has become when it comes to compliance with the CASA. It was on Friday, October 6, 2020, that Court appointed Federal Monitor Ginger told Federal District Court James Browning:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

EXTERNAL FORCE INVESTIGATION TEAM

On Friday, February 5, the City of Albuquerque and the Department of Justice (DOJ) filed a “Joint Motion For Entry of Stipulated Order Establishing An External Force Investigation Team” (EFIT) in the 2014 case filed by the DOJ against the City and the Albuquerque Police Department (APD) for civil rights violations and excessive use of force and deadly force.

According to the Motion and Order, the EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the approved order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.

A link to the Motion and the Stipulated Order is here:

https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view<

On Friday, February 26, U.S. District Judge James Browning held a hearing and approved the Stipulated Order between the city of Albuquerque and the DOJ. Both the City and the DOJ insisted that time was of the essence to allow the City to issue Request For Proposals (RFP) to hire EFIT members by contract. Judge Browning signed the Stipulated Order but said he intends to issue a written opinion on the matter in April giving his findings based upon what was brought out during the hearing. Under the approved order, the city will hire an administrator who will then hire a number of investigators for EFIT.

Assistant United States Attorney Paul Killebrew had this to say about EFIT :

“…[W]hat we have is a city that has failed to comply with that court order over and over and over again. It’s not an option right now to do nothing. If we sit back and wait, using all the tools that we have already been using, I don’t know why we would expect things to change on their own.

The sense of the United States when we received the monitor’s report was that additional interventions were required. … When we read [the Independent Monitor’s 12th report], we believed that there were likely grounds for contempt, and that we could probably make a good case for a receivership, at least as it regards serious force investigations.”
…
When we read [the Independent Monitor’s 12th report], we believed that there were likely grounds for contempt, and that we could probably make a good case for a receivership, at least as it regards serious force investigations.

According to the approved order, the city will seek to hire an administrator by early May and then start hiring the team. According to the approved order, the city will attempt to return full responsibility to the internal investigators within 9 months but that time frame could be extended, if needed. The order requires the outside investigators to accompany internal affairs detectives to all scenes where an APD officer uses force on a person that causes injury, hospitalization or death. The external investigator will be privy to all evidence, documents and investigative notes and will evaluate the quality of the internal investigator’s work and notify APD and attorneys if there are any deficiencies.

CONCLUSION

It is not at all difficult to understand why the Albuquerque Police Department Compliance and Oversight Division would even report:

“APD remains committed to implementing and sustaining the requirements of the CASA. The progress made during this reporting period highlights the Department’s ability to work collaboratively with stakeholders to implement positive change.” .

As has been the case with the Keller Administration, public relations reigns supreme over reporting bad news and there is no doubt the report prepared by the APD Compliance and Oversight Division was to make APD look better than it really is when it comes to the reforms. This sure the hell does not sound at all like APD is “… on the brink of a catastrophic failure at APD” that the Federal Monitor has reported. The Federal Monitor has repeatedly found APD has resisted the reforms to the point that the DOJ and the City were forced to enter into an agreed order for outside investigations and training on use of force cases.

The request for the External Force Investigation Team overshadows to the point of discrediting the 13th Progress and Status Summary Report prepared by the Albuquerque Police Department Compliance and Oversight Division. The 13th report offers very little more than what is in the Federal Monitor’s 12th report other than a series of appendix documents.

For these reasons, the benefit of 13th Progress and Status Summary Report prepared by the Albuquerque Police Department (APD) Compliance and Oversight Division appears to have had the only benefit of trying to down play just how bad APD has failed to implement the reforms for the past 6 years with millions spent and with millions more about to be spent.

It was on December 19, 2017, when Republicans had full control of the Senate and House and the Presidency that the House and Senate voted strictly on party lines to pass the most sweeping rewrite of the Unites States tax code in decades. It was a $1.5 trillion tax bill which former President Trump signed.

REPUBLICANS PASS TAX REWRITE WITHOUT DEMOCRATS

Under the final tax bill, the corporate tax rate fell from 35% to 21%. Individuals saw a tax cut, including a top rate of 37%, down from 39.6%. The size of inheritances shielded from estate taxation doubled to $22 million for married couples, and owners of pass-through businesses, whose profits are taxed through the individual code, were able to deduct 20% of their business income. The individual tax cuts will expire after 2025.

The tax changes affected businesses and individuals unevenly, with winners and losers often being determined by industry or geography. An analysis by the Tax Policy Center found that the bill reduced taxes, on average, by about $1,600 in 2018, increasing after-tax incomes 2.2%, with the largest benefit going to the wealthiest households.

The reach of the bill extended beyond taxes and at the core component of the Affordable Care Act. It eliminated the requirement that most people have health coverage or pay a penalty. The Congressional Budget Office projected that it increased premiums for people who buy insurance. It also opened the Arctic National Wildlife Refuge in Alaska to oil and gas drilling, a defeat for environmentalists who have fought against such action for decades. The tax cuts also had broad effects and were detrimental to many social programs that would be cut to make up for the tax cuts.

The approval of the bill in the House and Senate came over the strenuous objections of Democrats, who accused Republicans of giving a gift to corporations and the wealthy and driving up the federal debt in the process.

https://www.nytimes.com/2017/12/19/us/politics/tax-bill-vote-congress.html

DEMOCRATS GIVE REPUBLICANS PAYBACK

On March 6, 2021, the US Senate approved the $1.9 trillion coronavirus relief plan on a 50-49 vote without a single Republican vote. The Senate passed the bill through budget reconciliation, a process that required no Republican support but every Democratic vote. Senate progressive Democratic leaders had to compromise with more moderate Senate democrats to win unified support while trying to balance the need to keep nearly all House Democrats on board to pass the plan.

The relief measure includes a new round of up-to $1,400 stimulus checks for millions of Americans, $350 billion for cash-strapped cities and states, $130 billion for schools, and other sizable sums for a wide array of programs including food assistance, rental relief and coronavirus vaccine distribution.

The bill also authorizes an additional $300-per-week in unemployment payments until early September, trimming the amount that House Democrats initially had approved earlier in the month. The bill will now be returned to the House for approval of Senate changes.

The Senate passed a $1.9 trillion coronavirus relief package as the Democrats are rushing to send out another fresh round of aid. The Democratic-held House wants to pass it and send it to President Joe Biden for his signature before a March 14 deadline to renew unemployment aid programs.

The legislation includes direct payments of up to $1,400 to most Americans, a $300 weekly boost to jobless benefits into September and an expansion of the child tax credit for one year. It also puts new funding into Covid-19 vaccine distribution and testing, rental assistance for struggling households and K-12 schools for reopening costs.

Senate approval brings Biden’s first legislative initiative closer to fruition. While the GOP and some economists criticized the scope of the rescue package as the U.S. vaccination pace picked up, Democrats said they needed decisive action to prevent a sluggish recovery and future economic pain.

https://www.washingtonpost.com/us-policy/2021/03/06/biden-stimulus-covid-relief/

VOTER’S BI-PARTISAN SUPPORT

On March 3, it was reported that in a survey conducted from February 26 to March 1 by Morning Consult/Politico, showed strong bipartisan support for the $1.9 Trillion measure despite the increase in Republican attacks on its size, scope and price tag.

According to the poll 77% of voters backed the stimulus plan when its Democratic origin was not disclosed vs. 71% who did so when Democratic sponsorship label was disclosed.

59% of GOP voters say they support the $1.9 trillion stimulus package and 53% of GOP voters who were told it was the Democrats’ plan still backed it.

https://morningconsult.com/2021/03/03/coronavirus-stimulus-voter-support-bipartisan/

PRESIDENT BIIDENS REACTS

President Joe Biden praised the Senate’s passage of his $1.9 trillion COVID-19 relief plan calling it “one more giant step forward” on promises he made on the campaign trail to send aid to millions of Americans suffering from the effects of the COVID-19 pandemic. The relief package not only contains $1,400 relief checks but an extension of federal unemployment benefits, and billions of dollars for vaccine development and distribution. Biden had this to say:

“Today I can say we’ve taken one more giant step forward in delivering on the promise help is on the way. … The bottom line is this: this plan puts us on a path to beating this virus. ”

President Biden congratulated Senate Majority Leader Chuck Schumer for getting Senate passage. The Senate worked for more than 27 straight hours as it made its final deliberations on the package. Biden said:

“I’ve never seen anyone work as skillfully, as ably, as patiently with determination to deliver such a consequential piece of legislation.”

Biden made a swipe at former President Donald Trump without saying his name when he said he was “going to get the government out of the business of battling on Twitter and back in the business of delivering for the American people.”

https://www.usatoday.com/story/news/politics/2021/03/06/politics-updates-coronavirus-stimulus-senate/4595357001/

COMMENTARY AND ANALYSIS

When the Republican party rammed the 2017 $1.5 Trillion tax cuts through congress, they did so with the budget reconciliation process. At the time, the Republicans bragged about the tax cuts saying it would stimulate the economy, create jobs and would be refunding taxpayers money the government did not need.

The truth is, the Republican tax cuts benefited mostly the wealthiest in the country and major corporations and was the largest shift in wealth in the country’s history and to the wealthy. The Republican tax cuts did little to help the middle class. When the tax cuts were signed off by then President Trump, it was reported that he told wealthy donors at functions that he had just saved them millions.

COMIC RELIEF FROM THE REPUBLCAN SENATE CLOWN CAR

Fast forward to 2021 when Democrats hold the majorities in both the House and Senate as well as the Presidency.

Senate Minority Leader Mitch McConnell (R-Ky.) had this to say about the passage of the relief bill:

“The Senate has never spent $2 trillion in a more haphazard way, or through a less rigorous process. … Voters gave Senate Democrats the slimmest possible majority. Voters picked a president who promised unity and bipartisanship,” he continued, noting Democrats instead had opted to “ram through” their stimulus bill.

During the past 4 years when he was majority leader, the word “bipartisanship” was never used by Moscow Mitch and he has already forgotten what he did in 2017 when he rammed the $1.5 trillion in tax cuts through the senate knowing full well his ultimate goal has always been to cut entitlement programs such as social security and Medicare as the long-term goal to pay for the Republican tax cuts.

It was comical the lengths to which many Republican Senators went to try and defeat the $1.9 trillion coronavirus relief plan.

Republican Wisconsin Senator Ron Johnson stood alongside a poster board with a series of details about the literal, physical size of a stack of a trillion $1 bills. Johnson told his fellow senators that such a stack would be 67,866 miles high. Johnson said:

“That is what we are debating: spending. … A stack of dollar bills that extends more than halfway the distance to the moon.”

To make his case, Johnson also added that a stack of singles representing the entirety of the U.S. national debt would bring us even closer to Earth’s moon.

https://www.msnbc.com/rachel-maddow-show/ron-johnson-targets-relief-bill-decidedly-post-policy-way-n1259628

Johnson later demanded the reading out loud of the full text of the 628-page bill, which took hours while he was the sole member present in the Senate’s chamber except for a rotating series of Democrats who served as the body’s presiding officer.

https://www.reuters.com/article/us-health-coronavirus-usa-congress/us-senate-votes-to-begin-debate-on-biden-covid-19-relief-bill-idUSKBN2AW18U

Republican Louisiana Senator John Kennedy said about more rounds of stimulus payments:

“Well people in hell want ice water, too. … I mean, everybody has an idea and a bill, usually to spend more money. It’s like a Labor Day mattress sale around here.”

Kennedy also made somewhat of a fool of himself when he too took to the Senate Floor to recite each number of zeros in a trillion.

FINAL COMMENTARY

As the sayings go, “elections have consequences” and “pay back’s a bitch”. The 2020 elections did have major consequences and the pay back is almost to the moon.

With any luck, the Democratic controlled House and Senate will proceed to repeal the 2017 tax cuts and throw in a $15 dollar minimum wage for good measure.

Now that would be real payback long overdue.

On Thursday February 18, Channel 4 during its 6:00 PM news cast reported the following story:

STORY LINE: “Keller details proactive strategies to tackle crime in Albuquerque”

“ALBUQUERQUE, N.M.- Mayor Tim Keller addressed Thursday how his administration is trying to turn around the crime crisis in Albuquerque.

“I think it’s a challenging question because of COVID and what we’re seeing around the country. And actually we are concerned and worried about the reverse,” Keller said. “Violent crime is skyrocketing everywhere in the country. That is what we are trying to plan for, brace for and deal with. So until we have all the other associated aspects with COVID and violent crime and drug use show some kind of clear direction. Then we can give you an accurate forecast.”

The link to the news story is here:

https://www.kob.com/albuquerque-news/keller-details-proactive-strategies-to-tackle-crime-in-albuquerque/6017378/?cat=504

FEBRUARY 12 CHANNEL 4 REPORT

On Friday, February 12, KOB Channel 4 did another report interviewing Interim Chief Harold Medina on the city’s crime rates.

Following are the relevant portions of the Channel 4 report:

STORY LINE: “Interim APD chief says pandemic, drugs contributing to crime in Albuquerque.”

“ALBUQUERQUE, N.M.-

“It’s realistic that chiefs aren’t going to be around like they were in the past for decades,” Medina said. “Their short-term goals have to be tied in to long-term sustainable goals that are based on the department’s needs, and are going to be sustained by the department.”

https://www.kob.com/albuquerque-news/interim-apd-chief-says-pandemic-drugs-contributing-to-crime-in-albuquerque/6011104/?cat=500

COMMENTARY AND ANALYSIS

It is absolutely pathetic that Mayor Tim Keller and Interim Chief Harold Medina would make any attempt at all in blaming the city’s out of control crime rates in any degree on the pandemic. The blunt truth, crime has been out of control since Keller was sworn into office in 2017 and virtually all time Keller has been in office. The pandemic hit the city hard just last year in February, 2020. For that reason alone, Keller must think the public will believe anything he says when he blames the city’s crime rates on the pandemic.

In August, 2017, New Mexico State Auditor Tim Keller and candidate for Albuquerque Mayor had this to say about the city’s high crime rates:

“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.”

Fast forward to today. When Keller tells Channel 4 with a smile on his face and a grin in his voice: “We’ve shifted focus to consistent proactive policing …Almost all of our efforts and resources and hours were soaked up by reactively responding to calls”, he no doubt believes that the general public have forgotten what has happened.

Keller said when he announced the programs in 2019 were “pro-active” and “not reactive” as he is obviously is now claiming.

Lest anyone forget, Keller campaigned hard in part on bringing down the cities crime rates. During his term violent crime had only gotten worse and despite programs he initiated.

It’s truly amazing that Mayor Tim Keller and Interim Chief Harold Medina are essentially blaming the city’s high violent crime rates on the pandemic. They both damn well know full well that the pandemic hit the city hard last February, 2020.

During the last 3 years of Keller’s term in office, the city has had a record-breaking number of murders. In 2018, there were 69 homicides. In 2019, there were 82 homicides. As of February 18, 2021, the city has had 20 homicides, yet another major record of murders so early in the year.

Albuquerque had more homicides in 2019 than in any other year in the city’s history. The previous high was in 2017 when 72 homicides were reported. The previous high mark was in 1996, when the city had 70 homicides. The year 2020 ended with 76 homicides, the second-highest count since 1996. The decline dropped the homicide rate from 14.64 per 100,000 people in 2019 to about 13.5 in 2020.

https://www.abqjournal.com/1534762/homicide-numbers-high-despite-pandemic.html?amp=1

KELLER’S FAILURE TO BRING VIOLENT CRIME RATES DOWN AS PROMISED

The crime statistics released for 2018 and 2019 make it clear that despite all of Mayor Tim Keller’s promises to bring down skyrocketing violent crime, he has failed. In 2019, Keller implemented 4 new programs to address violent crime, increased APD personnel by 116, and spent millions. Violent crime is still “absolutely out of control”. Regrettably, Mayor Tim Keller has failed to do his “job to actually address crime in Albuquerque.”

Given Mayor Keller’s words as to whose job it is to address crime, a discussion of crime statics during Mayor Tim Keller’s tenure is in order.

VIOLENT CRIME UNDER KELLER

In 2018 during Mayor Keller’ first full year in office, there were 6,789 violent crimes, 3,885 Aggravated Assaults and 491 Non-Fatal Shootings.

https://www.petedinelli.com/2019/11/21/city-matches-homicide-record-high-of-72-murders-mayor-keller-forced-to-defend-policies-makes-more-promises-asks-for-more-money/

In 2019, the category of “Violent Crimes” was replaced with the category of “Crimes Against Persons” and the category includes homicide, human trafficking, kidnapping and assault. In 2019 during Keller’s second full year in office, Crimes Against Persons increased from 14,845 to 14,971, or a 1% increase. The Crimes Against Person category had the biggest rises in Aggravated Assaults increasing from 5,179 to 5,397.

On Monday, September 21, 2020, the Albuquerque Police Department (APD) released statistics that revealed that overall crime in the city was down by less than 1% cross all categories in the first six months of 2020 as compared with the first six months of 2019. Crimes against persons are all violent crimes combined and include murder, deadly weapons assault and injury and rape.

The decreases in “violent crime” from 2019 to 2020 was a decrease by only 21 crimes or a 0.28% decrease. Over a 2-year period, it decreased 4%. According to the FBI statistics released, there were 7,362 crimes against persons reported in the first six months of 2020 and there were 152 more in the second quarter than in the first.

AUTO THEFTS STILL HIGH UNDER KELLER

On June 26, 2019 the National Insurance Crime Bureau (NICB) released its annual list of cities with the most stolen vehicles reported. Despite a 28% reduction in auto thefts over a two-year period, Albuquerque ranked No. 1 in the nation for vehicle thefts per capita for the third year in a row. On July 30, 2020, the National Insurance Crime Bureau (NICB) reports that Albuquerque is now ranked #2 in the nation for auto theft.

https://www.forbes.com/sites/jimgorzelany/2019/06/27/these-are-the-cities-with-the-highest-car-theft-rates/#7c42e7d35146

HISTORICAL HIGH HOMICIDE NUMBERS UNDER KELLER

In 2018, during Mayor Keller’s first full year in office, there were 69 homicides. In 2019, during Mayor Keller’s second full year in office, there were 82 homicides. Albuquerque had more homicides in 2019 than in any other year in the city’s history. The previous high was in 2017 when 72 homicides were reported in Mayor Berry’s last year in office. The previous high mark was in 1996, when the city had 70 homicides. The year 2020 ended with 76 homicides, the second-highest count since 1996. The decline dropped the homicide rate from 14.64 per 100,000 people in 2019 to about 13.5 in 2020.

https://www.abqjournal.com/1534762/homicide-numbers-high-despite-pandemic.html?amp=1

In 2019, Mayor Tim Keller reacting to the spiking violent crime rates, announced 4 programs in 9 months to deal with and bring down the city’s high violent crime rates . Those APD programs are: the Shield Unit, Declaring Violent Crime “public health” issue, the Metro 15 Operation, “Violence Intervention Plan” (VIP Program). Based on the city’s high violent crime and murder rates, it appears Keller’s programs have been a failure

HISTORICALLY LOW HOMICIDE CLEARANCE RATES UNDER KELLER

For the past three years during Mayor Keller’s tenure, the homicide clearance percentage rate has been in the 50%-60% range.

According to the proposed 2018-2019 APD City Budget, in 2016 the APD homicide clearance rate was 80%.

In 2017, under Mayor Berry the clearance rate was 70%. In 2018, the first year of Keller’s term, the homicide clearance rate was 56%.

In 2019, the second year of Keller’s term, the homicide clearance rate was 52.5%, the lowest clearance rate in the last decade.

In 2020 the clearance rate has dropped to 50%.

Of the 75 homicides thus far in 2020, half remain unsolved. There are only a dozen homicide detectives each with caseloads high above the national average.

KELLER’S FAILED PROGRAMS

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

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

2. 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.

3. The “Violence Intervention Plan” (VIP program)

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. According to Keller vulnerable communities and law enforcement will be working together and building trust has proven results for public safety. 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. …”

4. The Metro 15 Operation program.

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. According to Keller and then APD Chief Michael Geier the new program would target the top 15 most violent offenders in Albuquerque. It’s the city’s version of the FBI’s 10 most wanted 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

CONCLUSION

During the first year Mayor Tim Keller was in office, he was confronted with a crisis where APD failed to gather and tag evidence of a 9 year old’s bloody underwear in a child abuse case. Initially, Keller defended the department and then back off after more than a few public out cry’s including the Albuquerque Journal. Keller acknowledged the mistake and said at the time his administration would acknowledge mistakes and take corrective action and would be transparent and take responsibility for mistakes made.

During the last 3 years under Mayor Tim Keller’s leadership, things have only gotten worse in the city as has Keller’s failure to be candid with the public. The sweeping and dynamic change that Keller was perceived to represent in 2017 never materialized. APD continues to implode, violent crime is still out of control and with a pandemic. Based on the city’s high violent crime and murder rates, APD is failing in its primary mission of combating crime and keeping the city safe.

On Tuesday, February 23, on a 41 to 27 vote, House Bill 255 (HB 255) passed the New Mexico House and was referred to the State Senate for hearings. On Wednesday, March 3, the Senate Judiciary Committee voted 5-4 to send the bill to the Senate floor for a final vote. HB 255 will create a new type of liquor license. The bill is strongly opposed by current liquor license holders.

As amended and approved by the Senate Judiciary Committee, the legislation has 3 major components :

It allows restaurants to deliver alcoholic drinks with food. Retailers could also apply for permits to deliver alcohol. An earlier version of the bill would have limited retail delivery to smaller stores, but the committee on Wednesday removed the size restriction, a move that would allow big-box stores to deliver, too.

It establishes a new license intended to make it easier for restaurants to sell liquor, not just beer and wine.

It Imposes a 2% tax on retailers selling alcoholic drinks to help raise revenue to offset other changes to the liquor tax structure. But the 2% tax would sunset in four years, a change added by the Senate Judiciary Committee on Wednesday.

A link to related news coverage is here:

https://www.abqjournal.com/2365488/liquor-law-changes-on-way-to-senate.html

RESTAURANT B LICENSE

HB 255 allows for the creation of a new “Restaurant B” license. It would allow restaurants to serve liquor by paying a yearly fee of $2,500 to $10,000, depending on restaurant capacity. The new licenses would be the first major change to New Mexico liquor licensing in 40 years.

It was in 1981 the New Mexico legislature created a system that allows for issuance of only 1,411 liquor licenses for the state where holders of the licenses can sell, transfer or lease the licenses. The legal effect of giving the authority to sell, transfer or lease the licenses results in granting a property right by the state.

The sale, transfer or leasing on the open market and the limited number of licenses available resulted in dispenser licenses, which allows the sale of all alcohol, to increase in value. Under current law restaurants wanting to serve hard liquor must own or lease a liquor license, which can cost hundreds of thousands of dollars Dispenser licenses known to sell upwards of $1 Million.

Interlocal Dispenser Licenses are the type license most commonly used by restaurants. There are 413 Interlocal Dispenser Licenses. According to the State Alcoholic Beverage Control the licenses can cost up to $400,000. The state does not keep track of how many of the licenses are held by restaurants, as opposed to full-service bars, entertainment venues or hotels. As a result, it is difficult to determine how many license holders will be affected with the issuance of the new type of license.

The proposed Restaurant B license would drastically change the Interlocal Dispenser Licenses system but there will be limiting conditions. Those who opt for the Restaurant B license would have to keep alcohol sales under 40% of their total revenue and end alcohol sales at 10 p.m. Current liquor licenses allow owners to sell alcohol until 2 a.m.

Bars and restaurants that choose to stay open later and use Interlocal Dispenser Licenses would not be eligible for the Restaurant B license. However, the bill also includes several tax deductions that aim to help current liquor license holders recoup their original costs.

In addition to the new Restaurant B licenses, HB 255 will allow home-delivery of alcohol in some circumstances and establish tax breaks intended to help the holders of certain liquor licenses. Under HB 255, local communities could choose to opt out. Also, HB 255 would expand tastings to craft distilleries and expand restaurant alcohol licenses that meet local ordinances to include not only beer and wine but also spirits with a 10 p.m. cutoff.

GOVERNOR’S SUPPORT AND SPONSOR REACTION

Governor Michelle Lujan Grisham supports the aim of HN 255 which is to help the struggling restaurant industry amid the coronavirus pandemic.

HB 255 is clearly a bi-partisan effort. Democratic Representative Javier Martínez and Dayan Hochman-Vigil, and Antonio Moe Maestas, all 3 of Albuquerque, and Republican Representatives Rod Montoya of Farmington and Joshua Hernandez of Rio Rancho are sponsors of the bill.

Representative Antonio “Moe” Maestas, D-Albuquerque had this to say during the floor debate before house passage:

“This is the first time in 40 years a liquor bill has gone this far that expands business opportunities for some New Mexicans. … Creation of a new license could prove to be beneficial to current license holders who now have the choice to sell their license or keep their license and retain the ability to serve until 2 a.m. … If you have a liquor license and you don’t stay open past 10 [p.m.], it is as if this bill is giving you the equivalent of a $350,000 license, because you can purchase the restaurant B license.”

OPPOSITION CONCERNS RAISED

The creation of the new type of license has generated strong opposition from the restaurant and liquor industry. Liquor license owners who oppose the proposed legislation say the creation of the new Restaurant B license grants other restaurants the same privileges as current liquor license owners for a fraction of the price they had to pay and it is felt unfair and devalues their original investment.

CEO of the New Mexico Restaurant Association Carol Wight said her association has members on both sides of the issue and that the association does not support of the HB 255 in its current form. Wight did say she is working with the bill’s sponsors with the hope changes can be granting more privileges to Interlocal Dispenser License holders and placing more restrictions on the new Restaurant B license.

Wight put it this way:

“It would be nice for restaurants to have [Restaurant B licenses]. On the other hand, I have members who own liquor licenses that they paid $300,000 for, and they’re not going to be very happy because now they’ve got a licensee that’s coming in at $10,000.”

Terry Keene, one of the owners of the Artichoke Café in Albuquerque had this to say:

“[The Restaurant B license] makes our liquor license worthless. … We use that as an investment … towards our retirement, and to give value to our restaurant if and when we ever choose to sell it.”

Mike and Alice Romero, owners of Michael’s Mini-Mart & Package Liquor Featuring Your Favorites By Alice in Velarde, urged House members to strike down the bill and had this to say to them:

“It is too drastic a bill, attempting to do too much without proper study. Large out-of-state chain establishments will be able to absorb the proposed license devaluations, and we will become a state full of the generic restaurants and stores that you find anywhere else in America. ”

The Romero’s did say some changes are needed in the liquor control laws and that alcohol home deliveries are a good step forward but that they fear other changes could harm New Mexicans.

Myra Ghattas, owner of Slate Street Cafe and Sixty-Six Acres, acknowledged it’s likely that existing license holders will pay a price for the reform and labled it as “unfortunate.” Notwithstanding, Ghattas supports the bill and said:

“The most important thing is our state needs liquor license reform to attract new business to be competitive with our neighboring states – to give local, small, independents a chance in the market. We don’t all have those deeper pockets like some of the big chain restaurants or big chain retail stores, so it’s long overdue.”

The links to a news source are here:

https://www.abqjournal.com/2362756/overhaul-of-liquor-licenses-advances.html

https://www.krqe.com/news/politics-government/legislature/new-mexico-house-endorses-liquor-reforms/

COMMENTARY AND ANALYSIS

In general terms, licensing by a government agency means the government gives permission to an individual, business or corporation to do something or do an activity that is highly regulated for the protection of the public health, safety and welfare. Licensing usually requires minimum qualifications mandated by state regulations such as education, training and certifications and even inspections at times.

Examples include licenses to drive, to do business, practice certain trades such as construction, plumbing, electrical, architecture, the practice of law, the practice medicine and even selling some goods and services. Health code inspections for restaurants and grocery stores are good examples of government licensing regulations of goods and services.

Under the current liquor control laws enacted some 40 plus years ago, a “dispenser’s license” allows for the sale of package liquor sales as well as the on-premise sale and consumption of alcohol. Although beer and wine licenses are available, full scale dispenser licenses are tied to population numbers in counties and limits the number of licenses that are available.

Once issued by the state for a one-time fee the liquor license becomes the property of the purchasers. As a result, liquor dispenser licenses carry with them property rights, are limited in numbers and can be sold on the open market. Over the years, dispenser licenses have increase in value and are now known to be sold for upwards of $1 Million dollars. Consequently, only the wealthy or major corporations can purchase dispenser licenses.

Current owners of liquor dispenser licenses have strongly resisted any efforts to allow the creation of different categories of licenses. The argument made by the owners of “dispenser’s licenses” is that creating new licenses or increasing the availability of more licenses will devalue their investment purchase. The argument made by owners of full scale “dispenser licenses” is that their investments would suffer a sever devaluing making them worthless. One argument made is that the state should be required to reimburse or purchase back the licenses for what the owners have paid for them on the open market.

Out of state “chain stores and restaurants”, which are now proliferating Albuquerque and squeezing out locally owned businesses, can afford whatever it takes to buy a liquor license. Smaller, locally owned restaurants cannot compete nor afford to pay hundreds of thousands for a liquor license. Any average New Mexican who wants to open a new bar or restaurant with a full liquor license cannot do so because the cost of a liquor license is so prohibitive as a result of the cap placed on the number of licenses that can be issued based on population numbers.

The biggest problem with the existing state liquor control laws is that they create the problem of granting a “property right” to those who were originally issued state licenses by allowing them to be sold or leased on the open market. The state did so for the sole purpose of putting a cap on the number of liquor licenses in order to avoid the proliferation of liquor businesses in a county, city or neighborhood. It was a good idea at the time and was intended to have an impact on the state’s alcohol abuse problem and DWI rates.

The state originally issued the licenses over 40 years ago for a significantly reduced or nominal fee and buy back those licenses today by the states would be at the tremendously inflated market value.

IMPEDIMENT TO ECONOMIC DEVELOPEMNT

To be blunt, the state’s existing liquor licensing laws impairs economic development. The dispenser licensing law works against the small business owner or entrepreneur. As the market exists now, only out of state chain stores and restaurants, which are proliferating Albuquerque and squeezing out locally owned businesses, can afford whatever it takes to buy a liquor license.

Smaller, locally owned restaurants cannot compete nor afford to pay hundreds of thousands for a dispenser liquor license. Any average New Mexican who wants to open a new bar or restaurant with a full liquor license cannot do so because the cost of a liquor license is so prohibitive. Although there is a cap placed on the number of licenses that can be issued based on population numbers, there is no real evidence that fewer licenses reduce DWI rates and increase public safety in any meaningful way.

Regulation and Licensing spokeswoman Bernice Geiger had this to say:

“Currently one of the impediments to economic development in the state is the relatively high cost of a dispenser type liquor license. One of the goals of this bill is to give people who are priced out of the market the ability to get into the market, to decrease the cost of licenses across the board, but [to give] current licensees the flexibility to pivot to new business opportunities by allowing the buy-back of lost package privileges or the ability to sell the license in markets that currently are restricted.”

https://www.abqjournal.com/1538506/liquor-overhaul-bill-would-allow-home-delivery.html

RETURN TO TRUE MEANING OF STATE LICENSING TO PERMISSION

The sale of liquor in the state is one of the most highly regulated industries in virtually all states. Licenses usually have ongoing qualifying mandates for renewal and at times have terms as to how long the license is effective and must be renewed. There is also a liquor license revocation process in place, such as revoking a license if liquor is sold to minors. Normally, licenses issued by a state do not give vested property rights to those individuals who apply for and issued the license to be able to sell or transfer on the open market. Dispenser licenses are viewed as “speculative investments” that accrue in value, and that was never the intent of the legislature.

The unintended consequence of New Mexico’s current liquor control act is that it gives property rights to the license holder to sell, transfer or lease the license. This was done for the purpose of limiting the total number of licenses the state can be issued based on population levels. One thing is for certain, the state needs to abolish the population caps on the number of liquor licenses, abolish dispenser licenses and refrain from ever giving property rights to a license’s it issues for permission to do a state regulated activity in the future.

FINAL COMMENTARY

There is very little doubt that the pandemic, the public health orders and the business closures have had the biggest impact on the restaurant and hospitality business in New Mexico. Restaurant owners who don’t have a liquor license will be able to sell liquor with only a yearly fee is an attractive possibility and will result in much-needed business. It’s likely the demand for Interlocal Dispenser Licenses will continue even with more licenses are available once the economy rebounds. No doubt there will be more and more venues and restaurants who will want to sell liquor.

The approach being taken by HB 255 with the issuance of Restaurant B Licenses is a step the right direction, but more needs to be done. The legislature should make it clear that there are no property rights vested in the new licenses, they must be renewed yearly and if not renewed, they revert back to the state. A holder of a Restaurant B license should be strictly prohibited from selling or leasing the licenses, otherwise the State is creating another market as an unintended consequence.

In the wake of the May 25, 2020 killing of African American George Floyd by a Minneapolis police officer who knelt on Floyd’s neck to subdue him, a Black Lives Matter Movement is sweeping states across the country calling for police reform at all levels. New Mexico is no exception.

The 2020 New Mexico legislature is well beyond the half way point of its 60 day session. There are numerous police reform bills making their way through the legislature. One of the more contentious is the Civil Rights Bill. This blog article is a republication of a New Mexico In Depth story followed by this blogs additional commentary and analysis relating to the Civil Rights Act.

NEW MEXICO IN DEPTH

The below story was originally published by New Mexico In Depth on March 2 and was written by Ted Alcon. Ted Alcorn is a writer whose work has appeared in The New York Times, The Atlantic, and The Lancet. He lives in New York City and was raised in New Mexico. For New Mexico In Depth, he’s written about the Hepatitis C epidemic in New Mexico prisons; criminal justice and policing; public health and economic mobility.

The link to the story is at the end.

HEADLINE: Police reform bills sweep the virtual statehouse, but outcome uncertain

By: Ted Alcorn, New Mexico In Depth

“A year of tumult over race and policing is coming to a head in New Mexico’s busy legislative session.

Advocates remained optimistic. On her way to testify in support of Lopez’s bill, Maestas wrote in a text message: “It is not easy to keep speaking, but until things change, it is necessary.”

The link to the full “New Mexico In Depth” article with photos is here:

https://nmindepth.com/2021/03/02/police-reform-bills-sweep-the-virtual-statehouse-but-outcome-uncertain/

DINELLI COMMENTARY AND ANALYSIS

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), Albuquerque is struggling to get a handle on the problem.

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. Albuquerque 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).

COSTLY PAYOUTS NOT EXAGGEREATED

The financial impact on government agencies is in no way being exaggerated by the Municipal League nor the Association County Governments.

The City of Albuquerque, Bernalillo County and the State have paid out large judgments costing millions, especially for police use of deadly force. Just 4 cases have cost $21 Million in out of court settlements for law enforcement use of deadly force cases. Another case involving the death of a child and the State’s Children Youth and Families Department has cost the state at least $1million.

Those cases reflect the current system does in fact work, those who get injured do get their day in court and they get compensated. Following is the listing of 5 such cases:

1. On January 27, 2014, it was reported that a $10.5 million dollar judgment that was appealed by the City of Albuquerque was settled by the city for $7.5 million for the police shooting and killing of Kenneth Ellis, II. In 2010 US Army Veteran Kenneth Ellis, II, was shot and killed by an Albuquerque police officer. Ellis had a gun pressed against his temple when he was shot in the neck. Mr. Ellis had been stopped at a convenience store on a false suspicion of committing a crime. Ellis was a veteran of the Iraq War who was suffering from post-traumatic stress disorder (PTSD). The Court found the City clearly liable ruling Mr. Ellis was only a danger to himself. Notwithstanding, then Lieutenant Harold Medina, who is now the APD Interim Chief, authorized the use of deadly force. Medina was never disciplined for his failed leadership in the case.

https://www.koat.com/article/report-city-agrees-to-settlement-in-ellis-case/5053797

2. On July 15, 2015, the city has agreed to pay $5 million to the family of James Boyd, a homeless camper who was shot and killed by Albuquerque police in the Sandia Foothills on March 16, 2014. Boyd was armed with a knife in each hand, a 15-hour standoff occurred and 2 SWAT Officers shot him dead after flash bangs were detonated and the K-9 Unit was dispatched. The shooting made national headlines with police lapel camera footage capturing the incident. The two SWAT officers were charged criminally, with one officer retiring. A jury could not reach a verdict on the murder charges and the charges were dismissed.

https://www.abqjournal.com/610827/albuquerque-reaches-settlement-in-lawsuit-over-james-boyds-death.html

3. The January 18, 2017, a $5 Million settlement was made with the family of Mary Hawkes, a 19-year-old woman who was shot and killed by police during a foot chase in 2014. Hawkes was shot in the back as she fled. The settlement resolves the lawsuit filed by her family against both the city and then APD officer Jeremy Dear who at the time did not have his body camera on.

https://www.abqjournal.com/1120552/hawkes-family-settles-lawsuit-fatal-apd-shooting.html

4. On March 7, 2020, it was reported that the Bernalillo County Sheriff’s Office agreed to pay the family of Elisha Lucero, 28, $4 Million to settle the case. Lucero was shot in front of her family’s south valley home after a family member called 911 in July of 2019. Lucero’s family said she struggled with mental illness, the sheriff says Lucero charged at deputies with a knife. The BCSO officers were not wearing body cameras. Lucero was shot 27 times.

https://www.kob.com/albuquerque-news/family-of-elisha-lucero-settles-case-with-bcso-for-4m-/5667056/

5. In 2013, 9-year-old Omaree Varela was kicked to death by his mother. Litigation was filed which accused two social workers and the state “Children, Youth and Families Department of violating Omaree’s rights by placing him in a dangerous home. A federal judge dismissed the lawsuit in 2016 citing qualified immunity for the government employees which hinged on whether the social workers knew or should have known that their conduct would violate the child’s clearly established rights. Notwithstanding the federal court dismissal, the case continued in State Court and the case was settled in a confidential settlement with the terms of the settlement not disclosed. It’s likely the case was settled for at least $1 million under the New Mexico Tort claims act.

https://www.abqjournal.com/2357524/notorious-child-abuse-case-cited-in-civil-rights-debate.html

NO INDIVIDUAL ACCOUNTABLITY PROVISION IN NM CIVIL RIGHTS ACT

Absent from the Civil Rights Act passed by the House and now being considered by the Senate is any provision that would actually hold a government employee truly liable and accountable for damages they have caused another. All the act does is create a cause of action, prohibits qualified immunity and mandates government to pay. There is no personal liability nor other types of penalties to hold the individual employee accountable for wrongful conduct and violations of civil rights and constitutional rights.

Absent from the legislation is any preventative measures directed at the government employee or services such as training, expanded behavioral health services and decertification’s and terminations of the employee. All that the legislation provides for is to pay out claims with no provisions that would prevent violations from happening in the first place.

Then there is the matter as to what extent do you want to hold a government employee personally liable for violations of constitutional rights? Do you make that person individually, jointly or severally liable to pay damages awarded? Should government pensions be forfeited? There are options many would likely feel go too far and are just punishment and not restitution while others would say it is justified if a person is dead because of the negligent conduct of the government employee.

Other types of penalties could easily be included such as mandatory termination from government employment, suspension of professional licenses such as licenses to practice law, medical licenses, teacher licenses, law enforcement licenses and certifications and trade licenses all issued and regulated by the state under existing law.

As it stands now under the proposed civil rights act, government will still bear the responsibility to defend and pay the judgments and settlements, and in turn its the taxpayer who is paying at the expense of other essential services such as education and social services. If accountability is truly what the Civil Rights Act is intended for, and what plaintiff trial attorneys want, it sure does look like the real goal is to make recover a lot easier and the award of attorney’s fees from a deeper pocket without having to prove a case in court before a judge or jury.

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 mandate 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 Friday, February 5, the City of Albuquerque and the Department of Justice (DOJ) filed a “Joint Motion For Entry of Stipulated Order Establishing An External Force Investigation Team” (EFIT) in the 2014 case filed by the DOJ against the City and the Albuquerque Police Department (APD) for civil rights violations and excessive use of force and deadly force.

According to the Motion and Order, the EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the approved order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.

A link to the Motion and the Stipulated Order is here:

https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view<

On Friday, February 26, U.S. District Judge James Browning held a hearing and approved the Stipulated Order between the city of Albuquerque and the DOJ. Both the City and the DOJ insisted that time was of the essence to allow the City to issue Request For Proposals (RFP) to hire EFIT members by contract. Judge Browning signed the Stipulated Order but said he intends to issue a written opinion on the matter in April giving his findings based upon what was brought out during the hearing. Under the approved order, the city will hire an administrator who will then hire a number of investigators for EFIT.

According to the approved order, the city will seek to hire an administrator by early May and then start hiring the team. According to the approved order, the city will attempt to return full responsibility to the internal investigators within 9 months but that time frame could be extended, if needed.

The order requires the outside investigators to accompany internal affairs detectives to all scenes where an APD officer uses force on a person that causes injury, hospitalization or death. The external investigator will be privy to all evidence, documents and investigative notes and will evaluate the quality of the internal investigator’s work and notify APD and attorneys if there are any deficiencies.

EVENTS LEADING UP TO EFIT

It was on Friday, October 6, 2020, that Court appointed Federal Monitor Ginger told Federal District Court James Browning:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

On Friday, December 4, 2020 during an all-day status conference hearing on the 12th Compliance Audit Report of the APD reforms mandated, it was revealed publicly for the first time that the City and the DOJ were negotiating a “stipulated order” for court approval that would create and External Force Investigations Team (EFIT).

During the hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released on November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told Judge Browning:

“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”

During the December 4 status conference hearing, Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew said:

“APD has proven over and over again its agility to avoid the requirements of the CASA.”

During the February 26 hearing to approve the stipulated order, Paul Killebrew told the court the motion was necessary because after 6 years the police department is still not holding officers accountable for using force that is out of policy. Killebrew told Judge Browning:

“…[W]hat we have is a city that has failed to comply with that court order over and over and over again. It not an option right now to do nothing. If we sit back and wait, using all the tools that we have already been using, I don’t know why we would expect things to change on their own. The sense of the United States when we received the monitor’s report was that additional interventions were required.

When we read [the Independent Monitor’s 12th report], we believed that there were likely grounds for contempt, and that we could probably make a good case for a receivership, at least as it regards serious force investigations. This is essentially something short of a receivership, but far more extensive than what is occurring now. What we’re talking about is having external folks assisting Albuquerque investigators in each investigation to ensure that those investigations identify out-of-policy force and to ensure that there is a strong factual record available so that policy violations can be identified and that officers can be held accountable. That is simply a nonnegotiable term of the consent decree. We must have officers held accountable for out-of-policy force, and after six years, we cannot wait for that to happen any longer.”

https://www.abqjournal.com/2363867/judge-signs-off-on-team-of-outside-investigators-to-help-apd.html

PARTIES REJECT CHANNEL 7 AND POLICE UNION FALSE CLAIMS

On February 4 and February 11, Channel 7 broadcast highly critical reports of the DOJ 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.

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 was essentially blaming the DOJ reforms for the city’s high crime rates in Albuquerque which is a false narrative .

Links to related blog articles on the KOAT TV news stories are here:

https://www.petedinelli.com/2021/02/15/apd-police-union-spreads-false-claims-that-casa-reforms-increase-abqs-crime-rates-and-objects-to-outside-force-review-team-as-a-party-to-lawsuit-police-union-contacts-with-press-undermine/

https://www.petedinelli.com/2021/02/10/target-7-searches-for-scandal-on-federal-court-monitor-finds-nothing-reports-millions-spent-on-reforms-fails-to-report-apd-management-and-police-union-reason-for-costly-delay/

During the February 26 hearing to approve the Order authorizing the EFIT, Judge Browning took note of the KOAT TV news reports as well as Albuquerque Journal articles. The Judge also disclosed that the court had received correspondence from citizens making the same accusation. 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 were the cause of the increase in City’s high crime rates.

According to a transcript of the February 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. I know you’re part of the Department of Justice, and they were just in here all morning fighting crime. 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 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?

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.

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 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 last month made the serious accusation the CASA reforms are responsible for the city’s high crime rates. Sources have confirmed that the Union President or union supporters solicited Channel 7 to do both investigative reports providing the station with the false narrative.

Albuquerque City Attorney Estaban 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 inand 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. ”

RIGHT TO DISMISS CASE

During the hearing, Judge Browning asked Assistant United States Attorney Paul Killebrew if the court had authority to dismiss the case if he wanted to in the following manner:

[W]hat are the chances of this consent decree being tossed out by me or anybody else in this case?

Mr. Killebrew responded as follows:

Good question, Your Honor. I think on the first question, of whether you have the authority to terminate the consent decree sua sponte, I think you do, because you have an ongoing obligation to ensure that this consent decree is fair, reasonable, adequate, and not the product of collusion. And I think if evidence came to light that this consent decree failed to meet those criteria, it would be reasonable for the Court at least to request briefing from the parties on those issues that you could make a considered ruling on it.

Both the City and the DOJ requested that the court sign off on the order as presented without any further delay so the process can begin in hiring the EFIT team. The parties could not provide the court what the ultimate cost will be for the EFIT team, but said it would be likely cheaper forcing changes now than after the fact litigation.

COMMENTARY AND ANALYSIS

The court approving the order to create a External Force Investigation Team is disappointing. Where there is a will to obstruct the CASA reforms, APD and the Police Union always find a way and this was even admitted to by the DOJ. The City and the DOJ have failed to learn that lesson after 6 years and upwards of $35 million a year spent on the reform efforts.

By approving the agreed to Order to create the EFIT, Federal Judge Browning has essentially given the City and APD one more opportunity, hopefully their very last chance, to get their act together and get the job done on implementing the reforms. The very real risk is the parties will continue to flop around like fish out of water accomplishing very little, another year will pass, and the engrained APD culture of resistance to the reforms will continue unabated.

It as if APD and its management are once again attempting to run out the clock on another Mayor, this time the Keller Administration, knowing full well the municipal election is on November 2, 2021 and Keller could be out of office. The EFIT gives incumbent Mayor Tim Keller plausible deniability against the accusation that he is not taking action to implement all the DOJ reforms as he promised 4 years ago when he ran. Truth is Mayor Tim Keller for 3 years has allowed a sore to fester when it came to APD’s deliberate attempts to undermine the reform effort while at the same time trying to lay claim that he has done a great job with APD and all the reforms. Things have only gotten worse under Keller and his public relations is a sharp contrast to the truth of what is happening with APD.

The EFIT must be the very last chance for the city and APD to make the DOJ reforms to work. If APD management, the union and rank and file continue with their efforts of “noncompliance”, not overtly, but in a manner to avoid detection and once again using “agility to avoid the requirements of the CASA”, the Federal Court should say enough is enough and hold the city in contempt of court. If that happens, the Court should order the Federal Monitor to take over APD’s Internal Affairs Unit and the use of force investigations.

In the event that the EFIT fails, which is more likely than not, Federal Monitor James Ginger needs to be given full authority over Internal Affairs personnel to the extent of being given direct management and control to issue orders and commands as to how use of force investigations are to be conducted. Then and only then will full compliance with the reforms be achieved.