On November 8, Democrat Bernalillo County District Attorney Raul Torrez was elected Attorney General of the State of New Mexico defeating Republican Jeremy Gay.  Torrez was elected with 55% (381,339 votes) of the vote to Gay’s 45% (310,486 votes.)  Torrez was first elected DA in 2016 in a contested race and then elected to a second 4-year term unopposed in 2020.   Governor Michelle Lujan Grisham will appoint his successor to serve the remaining 2 years of his term and that person will have to run in 2024 if they decide to do so.

On November 16, it was reported that Governor Michelle Lujan Grisham’s office is accepting applications to fill the vacancy that will be created when Raúl Torrez is sworn in January 1 as the state’s next attorney general.  According to Nora Myers Sackett, the governor’s press secretary, Lujan Grisham plans to appoint a replacement to fill out the remainder of Torrez’s term, which expires on January 1, 2024.  Applications for the post are due by December 2. Application forms can be downloaded from the governor’s website at www.governor.state.nm.us. Applications may be submitted via email to donicia.herrera@state.nm.us.

Links to news sources are here:

https://www.krqe.com/news/albuquerque-metro/apply-now-governor-seeks-bernalillo-county-da-candidates-ahead-of-torrezs-departure/

https://www.abqjournal.com/2551258/governor-accepting-applications-for-bernalillo-county-da.html

ASSISTANT DISTRICT ATTORNEY’S SEND LETTER OF RECOMMENDATION

On November 18, a letter signed by 49  Assistant District Attorneys, Trial Attorneys, Senior Trial Lawyers and a Deputy District Attorney was  sent to  Governor Michelle Lujan Grisham asking  her to appoint either Deputy District Attorney Diana Garcia, Deputy District Attorney Joshua Boone or Deputy District Attorney and former Metropolitan Court Judge John Duran as the Next Bernalillo County District Attorney.  There are a total of 102 full time fully funded attorney positions within the office.  Currently, 81 attorney positions are filled and 21 attorney positions are vacant and have been vacant since the July 1, the beginning of the fiscal year.

Following is the full, unedited letter sent to Governor Lujan Grisham by the 49 attorneys:

November 18, 2022

Dear Governor Michelle Lujan-Grisham,

Those of us signing this letter are line attorneys from various divisions within the Second Judicial District Attorney’s Office. We all want to do everything in our power to keep Bernalillo County safe, and we need a leader who will enable us to do exactly that. In light of Raul Torrez’s recent election as the Attorney General for the State of New Mexico, we are respectfully writing you to request that Joshua Boone, John Duran, or Diana Garcia be appointed as the next District Attorney of the Second Judicial District.

As you are well aware, Raul was a career prosecutor before becoming the District Attorney for the Second Judicial District, and worked as a prosecutor for the Thirteenth Judicial District, the New Mexico Attorney General, and as an Assistant United States Attorney. Under his leadership, our office cleared out an extensive back log of cases that had been neglected by the previous administration, and was modernized so we could focus our attention on the criminals causing the most harm in our community. Now, we are facing a backlog of cases that accumulated under the delays caused by the pandemic.

 In the first half of 2023 alone, the next District Attorney will have to deal with over a thousand cases that have been set for trial in the District Court. It will be imperative to the success of this office, and therefore the safety and welfare of our community, to have a District Attorney that can hit the ground running, that already understands how this office has been run and the systems that are already in place. We will need a District Attorney who is already familiar with the challenges our district faces, from the complexities of the timelines mandated by LR2-308 (that has only recently gone back into effect with recently introduced nuances to account for COVID) to the multiple software platforms and legal agreements needed just to send and receive discovery from multiple law enforcement agencies  (Albuquerque Police Department, Bernalillo County Sheriff’, s, New Mexico State Police, Isleta Police Department, Laguna Police Department, etc.)   The days of showing up to court with paper files are over, our office has been technologically integrated directly with law enforcement. We have new systems (such as Case catcher) that have already been funded and developed that are just now being deployed and are already understood by our current managers. The herculean job of the next District Attorney will require someone who already has considerable, and recent experience managing the people of this office specifically.

 As our caseloads continue to skyrocket and we struggle to fight the crime of the past and present simultaneously, we are asking for a leader who knows what we are up against, because they have been in the same position themselves. We are asking for someone who already knows the strengths and weaknesses of the individual employees, and already has a team in place that can immediately continue where DA Torrez left off. We believe that leader is already in our office. If we stumble and have to start over again with someone who has no experience running this office, the community is the one who will pay the price.

Sincerely,

Assistant District Attorneys of the Second Judicial District

The link to review the letter is here:

https://www.scribd.com/document/609067682/Letter-to-the-Governor-Final

ANALYSIS OF THE LETTER

The letter contains the  signatures of 42 of the attorneys and 7 who electronically signed the letter. The signatures of those who  signed the letter included 10 Assistant District Attorneys, 6 Assistant Trial Attorneys, 13  Trial Attorneys,  and 12 Senior Trial Attorneys.  The signatures of those attorneys who were unable to sign the letter in person and who electronically signed the letter include 1 Deputy District Attorney, 1 Assistant Trial Attorney, 2 Trial Attorneys and 3 Senior Trial Attorneys.

BERNALILLO COUNTY DISTRICT ATTORNEY’S OFFICE

As of November 21,2022, according to the New Mexico State Government Sunshine Portal, the Bernalillo County District Attorney’s Office has a $30,350,800 million operating budget with an adjusted operating budget of $36,680,800 which includes all sources of financing including federal grants.

The office is budgeted for 337 full time positions.  The office employs 102 attorneys (81 filled, 21 vacant) who are “at will” and 255 other “classified” employees consisting of paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance division personnel who can only be terminated for cause under the state personnel rules and regulations.  276 of the positions are considered “active” meaning filled, and with the office having an alarming 61 vacancies. The number of vacancies in the office is larger than most other District Attorney’s offices in the state.

All attorneys within the office are “at will” and serve at the pleasure of the District Attorney and can be terminated without cause. The Bernalillo County District Attorney’s has the following attorney positions filled:

1 elected  District Attorney paid $92,137

3  Chief Deputy District Attorneys, each paid $116,916 a year

29 Deputy District Attorneys,  each paid $105,809 a year

25  Senior Trial Attorneys,  each paid  $81,923 a year

14  Trial Attorneys, each  paid  $69,347  a year

9  Assistant Trial Attorneys, each paid $67,891.210 a year

TOTAL FULL TIME ATTORNEYS CURRENLTY EMPLOYED:  81

There are an additional 21 “at will” attorney positions that are vacant with a resulting total of 102  full time fully funded attorney positions within the office.

According to the New Mexico State Government Sunshine Portal, there are 61 vacant a position within the DA’s Office of which  21 of those vacant positions are “at will” attorney positions.  The 21 vacant attorney positions are:

1 Chief Deputy District Attorney position paying  $116,916 a year

EDITORS NOTE: Chief Deputy District Attorney Chuck Barth passed away January 6, 2021, and DA Torrez has yet to fill the position.

3 Senior Trial   Attorney positions paying $95,763 a  year
3  Trial Attorney position paying $86,673 a year.
8 Trial Attorney positions paying $75,004 a year
6 Assistant Trial Attorney positions paying $67,891 a year

All remaining potions within the Bernalillo County District Attorney office are “classified” employees for a total of 255 classified positions with 121 at will attorney positions.  

In addition to the vacant attorney positions, there are 23 vacant classified positions. Noteworthy positions fully funded with annual salaries but vacant are as follows:

1 Victim-Witness Administrator, $82,402

IT Application Developer: $74,682

Program Administrator: $74,672

3 Prosecution Specialists: $56,680

2 Program Specialists: $56,680

1 Senior Legal Assistant: $51,272

1 Prosecution Assistant: $42,016

1 Legal Assistant: $42,016

The link to the New Mexico State Government Portal to review all filled positions with names and salaries paid and all vacant positions is here:

https://ssp3.sunshineportalnm.com/#employees

Editor’s Note:  On the above link, first click on “Judicial” branch and then click on “District Attorney, Second District” and a listing of all potions, filled and unfilled, with names and salaries paid are provided.

ADMINISTRATIVE OFFICE OF THE DISTRICT ATTORNEYS

The Administrative Office of the District Attorneys (AODA) was created in 1984.  It is a state agency created to support and promote the work of all of New Mexico’s District Attorneys, including but not limited to support, training, and personnel rules and regulations. All elected District Attorney and their offices are required to be members of the agency and the office provides basic support services to all District Attorneys’ Offices statewide including personnel administration and enactment of personnel rules and regulations that apply to all District Attorney Offices in the State.

https://www.nmdas.com/

The Administrative Office of the District Attorneys has adopted a “District Attorneys’ Personnel & Compensation Plan” that outlines specific personnel rules and regulations that apply to virtually all attorneys that are appointed by any District Attorney to work as state appointed prosecutors. The personnel rules and regulations has provisions governing “at will employment” of attorneys and rules governing “political activities”  and “prohibitions of conduct.”    The link to review “THE NEW MEXICO DISTRICT ATTORNEYS’ PERSONNEL & COMPENSATION PLAN” is here:

Click to access 082020_DA_Pers_Plan.pdf

Following are the sections of the   New Mexico District Attorneys’ Personnel & Compensation plan that governs “At Will” Employment, permitted  “Political Activities”, “Prohibited Activities”  and the holding of “Public Office” by attorneys within all District Attorney offices in the state:

9.2 “AT WILL” EMPLOYEES

“ 9.2.1  The positions of attorney … are “at will” positions that serve at the pleasure of the District Attorney.

9.2.2   Such “at will” employees shall have no property interest in the continued position, shall not obtain covered position status and may be dismissed with or without cause.

9.2.3 Upon acceptance of an “at will” position, a previously covered employee retains no protection afforded under this plan due to previous status in a covered position.”

EDITOR’S NOTE:  Attorneys employed in the public sector including  the offices of  Attorney General, all City Attorney’s Offices, all County Attorney Offices,  all  District Attorney’s Offices,  the Public Defender’s Office and the Governor’s Office and Cabinet Secretary’s Offices have always been all “at will”, and such is the case in the private sector. The justification for making attorneys at will is that they  are a licensed professionals that require  attorney client relationships and confidentiality and there  is a need to terminate when such relationships cannot be sustained or when confidence in the attorney’s job performance is lost by the client and the the employer.  It was in 1997 that the attorney’s employed by the Bernalillo County District Attorney’s  attempted to unionized proclaiming they had vested property rights to the “at will” jobs they held and the attempt was successfully thwarted by then District Attorney Jeff Romero. 

…  .

POLITICAL ACTIVITIES

“17.1 Employees may engage in the following activities as long as it is while they are on approved leave or not on duty:

 17.1.1 serve as convention delegates;

17.1.2 attend political rallies;

17.1.3   sign nominating petitions and make voluntary contributions to political organizations; and

 17.1.4 serve as election officials or officers in political organization(s).

17.2  EMPLOYEES ARE PROHIBITED FROM:

“17.2.1  Engaging in political activity while on duty;

17.2.2 Distributing or displaying campaign materials (including buttons) and soliciting contributions for a political candidate or party while on duty;

17.2.3   Using official authority for the purpose of interfering with or affecting the result of an election or a nomination for office or for any other political purpose;

17.2.4 Using office supplies, equipment or facilities in connection with any political activities;

17.2.5 Directly or indirectly coercing, attempting to coerce, commanding or ordering any employee to pay, lend or contribute anything of value to a party, committee, organization or person for a political purpose; and

17.2.6 Threatening to deny promotions to any employee who does not vote for certain candidates or requiring employees to contribute a percentage of their pay to a political fund or ordering employees to buy tickets to political fund- raising events.

15 [10.4.1.16NMAC-N, 6/30/2010; Amending and moving to here former sections

10.4.11.8 and .9 NMAC-RpNMDAA91-1.12.0l, Repealed 6/30/2010”

 PUBLIC OFFICE

 18.1 Employees shall not hold any other public office during the employee’s duty hours in the service.

An employee may accept appointment to a state or local board or commission provided such participation does not create a conflict of interest, is consistent with existing statutes and court rules and does not interfere with an employee’s assigned duties.”

18.2 An employee may seek a full-time public office if the employee’s absence does not interfere with the function of the office and the District Attorney authorizes such absence. Otherwise, the employee shall resign to seek such public office.

18.3 The act of filing nomination papers or, where appropriate, the payment of a filing fee or the accepting of the nomination shall constitute the seeking of public office.

18.4 Being a local school board member or an elected or appointed member of any postsecondary educational institution shall not be construed to be holding political office.

NEW MEXICO LAW PROHIBITING STATE EMPLOYEES FROM HOLDING STATE POLITCAL OFFICE

 10-9-21. Prohibited acts.

1. … .
2. No person in … employee in [state] service shall hold political office except for a non-partisan county or municipal office or be an officer of a political organization during his employment. … .
3. Any employee who becomes a candidate for public office shall, upon filing or accepting the nomination and during the campaign, take a leave of absence. This subsection does not apply to those employees of a grant-in-aid agency whose political activities are governed by federal statute.

https://law.justia.com/codes/new-mexico/2020/chapter-10/article-9/section-10-9-21/

In 1972, the New Mexico Supreme Court ruled that Subsection B does not violate the first amendment guarantee of freedom of speech in requiring that  state employees shall  not hold public office, nor does it deny equal protection by exempting some state employees from its provisions. (State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203.)  The New Mexico Supreme Court has also ruled that the legislature has the constitutional power under N.M. Const., art. VII, § 2B, to enact this section and to provide, as a qualification or standard for continued employment by the state in a position covered by the State Personnel Act, that the employee shall not hold “political office.” State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203.  In 1992, the New Mexico Attorney General issued an opinion that any  state employee may seek election to any county office anywhere in the state, and  if the employee takes a leave of absence from the state job while a candidate and, if elected, the employee must  resign from the state job. (1992 Op. Att’y Gen. No. 92-01.)

COMMENTARY AND ANALYSIS

The  letter signed by  the 49 attorneys within the Bernalillo County District Attorney Office falls squarely in the category of  “what the hell” are  any one of these attorneys  thinking or if they were were coerced in any way into signing the letter, especially by those who have supervisory authority over other attorneys?  All State prosecutors must be above politcal influence and approach. For them to exert themselves in the politcal process and attempt to sway Governor Lujan Grisham as to who she should appoint and have a say as to who should be their next boss, is a clear conflict of interest an abuse of their titles and authority creating an appearance of impropriety. The conduct is unacceptable and should be condemned in no uncertain terms by the elected District Attorney.

The letter of recommendation signed by 49 attorneys ranging from the positions of Assistant District Attorneys all the way up the chain of command to a Deputy District Attorney is so very, very  wrong on so many levels. The letter can only be characterized as a very serious breach of personnel rules and regulations and serious lapse of professional conduct, judgement and ethics.

The letter contains the actual signatures of 42 for the attorneys and 7 who electronically signed the letter. The signatures of those who actually singed the letter included  10 Assistant District Attorneys,  6 Assistant Trial Attorneys, 13  Trial Attorneys,  and 12 Senior Trial Attorneys.  The signatures of those attorneys who were unable to sign the letter in person included 1 Deputy District Attorney, 1 Assistant Trial Attorney,  2 Trial  Attorneys and 3 Senior Trial Attorneys  who electronically signed the letter.

Ostensibly, the letter was sent to the Governor’ s Office on DA office stationery and with the office letter head which is very problematic.  Another problem with the letter is that the original signatures are followed by the titles of the individuals with many of those titles  printed  in  handwriting  with the handwriting appearing  to be from another person and not the person who signed the letter. This likely indicates that the person who collected the signatures added the titles and that person may have been a supervising attorney and perhaps even on of the 3 Deputies who have applied for the job.

VIOLATIONS OF DISTRICY ATTORNEY PERSONNEL & COMPENSATION PLAN

The letter of recommendation violates a number of the Administrative Office of the District Attorneys Personnel and Compensation Plan provisions.  The violations are as follows:

All the attorneys are “AT WILL” employees, who serve at the pleasure of the District Attorney and can be terminated without cause.  As such they have given up a degree of their first amendment rights of “free speech” while at work.  As “at will employees,” they are strictly prohibited from engaging in political activities  while on duty.  Writing and/or signing letters of recommendation to the Governor to recommend who should be appointed District Attorney is clearly prohibited “politcal activity” while on duty.  (Section 9.2 “AT WILL” EMPLOYEES, District Attorneys’ Personnel & Compensation Plan”.)

Use of DA office letter head and  titles is use  of official authority for the purpose of interfering with or to affect the result of the selection or a nomination for office of a person and  for District Attorney as in this case.  (Prohibited activity, Section  17.2.3 “District Attorneys’ Personnel & Compensation Plan”.)

If District Attorney office letter head, fax machines or DA  office postage was  used to send the letter to  Governor Lujan Grisham it  would be “using office supplies, equipment or facilities in connection with  political activities”    (Prohibited activity,  Section 17.2.4, District Attorneys’ Personnel & Compensation Plan.)

If any attorney who was superior of another attorney solicited support and signatures on the letter, that would be “directly or indirectly coercing, attempting to coerce, commanding or ordering any employee to … contribute anything of value, in this case a recommendation to the Governor,  to a party, committee, organization or person for a political purpose”  which would  be for the appointment of  District Attorney. ”    (Prohibited activity, 17.2.5  District Attorneys’ Personnel & Compensation Plan.)

All  3 of the  Deputy District Attorneys mentioned in the letter are in fact seeking the appointment to a political elected position.  However, they can do so as long as it does not interfere with the function of the office and the District Attorney, otherwise, they must  resign to seek such public office.   State law is also clear that full time state employees cannot run for any state office. (NMSA  10-9-21, 1978)

Now that all 3 Deputies are applying to fill the vacancy, they have become active candidates for the office of District Attorney and actively campaigning for the appointment on office time.   Under state law, and in order to avoid the appearance of impropriety, all 3 should take a leave of absence until the Governor make the final appointment.

Confidential sources within the office  have confirmed that at least one of the Deputy District Attorneys being recommended in the letter to replace Torrez actually solicited subordinates to sign the letter. If that is indeed the case, it can only be construed as undue influence of a supervisor over a subordinate.  Another confidential source has confirmed that still another of the Deputies seeking the appointment has said he fears termination if another person outside the agency secures the appointment and that Torrez himself is doing all he can to stop an outsider from getting the Governor’s appointment.

It is not all likely given the “office gossip” reputation the agency has that any one of the 3 Deputies recommended did not know that the letter was being circulated on their behalf.  It is  believed  that all 3 of the Deputy District Attorneys were aware  the letter and that it was being circulated with at least one condoning it. If they did know, and they condoned it, they failed to excercise their supervisory authority.  Ignorance on their part of the  “District Attorneys’ Personnel & Compensation Plan” and its prohibition on political activities  should be grounds for disqualification for the appointment.

GOVERNOR NEEDS TO APPOINT OUTSIDER DISTRICT ATTORNEY

The letter signed by Torrez appointed prosecutors has raised more than a few major concerns within the New Mexico Defense Bar and prominent members of the  New Mexico Trial Lawyers Association who are known to be advocating for the  appointment of an experienced attorney.  Many within the bar have said the Governor needs to appoint an outsider to take over the job of DA and change the Torrez political agenda that is antagonistic to the courts and the criminal justice system itself with Torrez having politicized the job and the office prosecutions to promote his political ambitions.

As he ran for successfully for Attorney General this year, Torrez ran a commercial that falsely said his opponent was not qualified to be Attorney General because his opponent was a defense attorney while Torrez claimed to be a career prosecutor. It was the identical smear tactic Torrez used against his Democratic opponent State Auditor Brian Colon in the primary accusing Colon of being a politician and not a prosecutor and accused Colon of never prosecuting a case when in fact his office investigated criminal waste, fraud and abuse.

Throughout the last six years, Raul Torrez during his tenure as Bernalillo County District Attorney has been at odds with and has consistently criticized District Court Judges,  and the New Mexico Supreme Court and the defense bar. He has gone so far as to accuse the courts for being responsible for our high crime rates.  Torrez has accused defense attorneys in the past of “gaming the system” while they did their jobs to protect their client’s constitutional rights.  Torrez also accused defense attorneys from  prohibiting  the DA’s office from getting convictions by refusing to talk their defendant clients  into accepting  plea agreements so that the DA’s office could secure convictions without going to trial and proving their cases.

Torrez  has proclaimed that our criminal justice system is broken, yet he has refused to take any responsivity for his offices failure to prosecute serious violent crime preferring or authorizing prosecutors  to dismiss cases. A District Court study revealed the Bernalillo County District Attorney’s Office under Raul Torrez has a 65% combined dismissal, acquittal and mistrial rate. The data presented showed in part how overcharging and a failure to screen cases by Assistant District Attorney’s was contributing to the high mistrial and acquittal rates. A common observation has been made that many of the prosecutors within the office are ill equipped within the office and are afraid of courtroom settings and prefer to simply plea out cases.

For the last 2 years, Raúl Torrez has advocated a change in law that would create a “rebutable presumption” that a defendant is a threat to the public when charged with a violent crime and that they should be jailed until pending trial without bond or conditions of release. The doctrine of rebuttable presumption  mandating  confinement pending trial is an affront  to the constitutional right of the presumption of innocence until proven guilty.  The presumption Torrez wants is to shift the burden of proving dangerousness from the prosecution to the defendants and  require defendants accused of  crimes to show and convince a judge that they should be released on bond or conditions of release pending their trial on the charges.

The November 18, 2022 makes it painfully clear that the attorneys appointed by Torrez, including the 3 Deputy District Attorney that are seeking to replace him, want to carry on with his policies and his political agenda. The 3 deputies are likely part of the problem within the office and who fail to prosecute cases.

The letter reflects an element of sure arrogance by the attorney’s signing it that only an insider can handle the job of District Attorney. The letter is also an expression of a level of personal entitlement to the job and the office itself.  For these reasons, there is a clear need for the Governor to appoint an outsider to fill the position so that a new beginning for the office can happen without any influence over the office by Raul Torrez.

61 vacancies withing the DA’s  office, which includes 21 attorney vacancies, has been a chronic problem the entire 6 years Raul Torrez has been District Attorney.  He has never had a fully staffed office. The sure volume of vacancies is a sign of mismanagement of the office, this coming from a DA that constantly complained to the New Mexico legislature that he needed more funding and was short staff. The truth is Torrez could not attract attorneys to go to work for him given his reputation of politicizing the office.

DA AND ATTONEY GENERAL ELECT RAUL TORREZ

Sources have a confirmed that Attorney General- elect Raul Torrez is in support of any one of his 3 duly appointed Deputies to take over the office. If that is in fact the case, Torrez himself has some explaining to do to the general public and the Governor.  It’s an obvious attempt for him to continue to have influence over the office once he leaves January 1. Sources have also confirmed that Torrez is openly hostile to at least one other applicant who is known to have applied for the job but who has yet to be disclosed by the Governor’s office.

Torrez needs to disclose the public and the Governor if he was aware of the letter and in particular if he authorized it. Torrez needs to demand the letter be withdrawn immediately and demand an apology be issued by the attorneys who signed it.  Torrez should issue at a minimum an immediate letter of reprimand to the attorneys who have signed the letter and demote or suspend their employment for an appropriate  period of time to make it clear that prohibited politcal activities while on the job will not be tolerated.

Torrez needs to keep his nose out of the Governor’s business as she accepts applications from qualified attorneys to fill the job he has abandoned at midterm.

On November 16, 2022, the External Force Investigation Team (EFIT) filed its 5^th quarterly report with Federal District  Court Judge James Browning who is overseeing the federal Court Approved Settlement Agreement (CASA) mandating reforms of the Albuquerque Police Department (APD).  The EFIT 5^th quarterly report covers the time period of August 5, 2022 to October 27, 2022.

The EFIT was created on February 26, 2021 by an agreed court order after the Federal Monitor found that APD intentionally did not investigate 667 of use of force cases.  A Court Order was agreed to by the city after the Department of Justice made it know it was prepared to seek Contempt of Court for willful violation of the Court Approved Settlement Agreement (CASA) and seek sanctions against the city.

This blog article is a summary of the EFIT’s 5^th main quarterly report accomplishments and statistics.  It deletes all personnel management decisions, discissions and meetings in the report between the EFIT administrators and APD, the police union and city attorney. The article for that reason should  not to be considered exhaustive. You can read the entire 131 page EFIT 5^th quarterly report here:

• 4th Quarterly Report: April 22, 2022-Aug. 5, 2022

HOW EFIT WORKS

EFIT is on call 24/7 and must respond to all call outs within one hour of notification. All Use of Force (“UOF”) investigations must be completed within 60 days with an additional 30-day supervisory review period for a total of 90 days from start to finish.  EFIT must conduct joint investigations with APD Internal Affairs Force Division (“IAFD”) of all Level 2 and Level 3 Use of Force incidents.   The joint investigations include all Tactical Deployments where Use of Force is utilized. EFIT must also assist APD with training concerning the UOF. The EFIT Executive Team worked with APD IAFD to establish a detailed IA Investigative Process Narrative that governs the response protocols to any Level 2 and 3 UOF cases.

On March 21, 2022, an Amended Stipulated Order Establishing the EFIT was agreed to by the parties. The Amended Stipulated Order modifies the EFIT in two ways:

First it requires the EFIT to investigate all use-of-force incidents occurring between January 1, 2020, through July 16, 2021, that APD did not investigate, in full or in part, in violation of the Court Approved Settlement Agreement (“CASA”)

Second it extends by 24 months, from May 2022 through May 2024, the period during which the City shall continue to engage EFIT to assist IAFD to investigate new Level 2 and Level 3 use-of-force incidents

CLASSIFACTIONS OF USE OF FORCE

The EFIT Executive Team worked with APD to establish a detailed Process Narrative that governs the response protocols to Level 2 and 3 Use Of Force cases. EFIT and APD continued to review this document to ensure that it is serving the interests of the assignment and has made modifications, as necessary.

Classifications of Force Levels that EFIT works within are enumerated in the APD Use Of Force Policies and a brief description are [as follows]:

Level 1 is force that is likely to cause only transitory pain, disorientation, or discomfort during its application as a means of gaining compliance. This includes techniques which are not reasonably expected to cause injury, do not result in actual injury, and are not likely to result in a complaint of injury (i.e., pain compliance techniques and resisted handcuffing). Pointing a firearm, beanbag shotgun, or 40-millimeter launcher at a subject, or using an Electronic Control Weapon (ECW)  to “paint” a subject with the laser sight, as a show of force are reportable as Level 1 force. Level 1 force does not include interaction meant to guide, assist, or control a subject who is offering minimal resistance.

Level 2 is force that causes injury, could reasonably be expected to cause injury, or results in a complaint of injury. Level 2 force includes: use of an Electronic Control Weapon (ECW), including where an ECW is fired at a subject but misses; use of a beanbag shotgun or 40 millimeter launcher, including where it is fired at a subject but misses; OC Spray application; empty hand techniques (i.e., strikes, kicks, takedowns, distraction techniques, or leg sweeps); and strikes with weapons, except strikes to the head, neck, or throat, which would be considered a Level 3 use of force.

Level 3 is force that results in, or could reasonably result in, serious physical injury, hospitalization, or death. Level 3 force includes: all lethal force; critical firearms discharges; all head, neck, and throat strikes with an object; neck holds; canine bites; three or more uses of an ECW on an individual during a single interaction regardless of mode or duration or an ECW application for longer than 15 seconds, whether continuous or consecutive; four or more strikes with a baton; any Level 2 use of force, strike, blow, kick, ECW application, or similar use of force against a handcuffed subject; and uses of force resulting in a loss of consciousness.

Closed UOF cases are presented to the Force Review Board (“FRB”).   All Level 3 cases, tactical deployments, OIS, and 10 % of Level 2 cases are presented at FRB. Initially, EFIT had no role in the Force Review Board  process other than as an observer. However, as the cases that EFIT jointly investigated with Internal Affairs  Force  Division are now at the FRB level, and the EFIT managers Darryl S. Neier and Mr. Hurlock believed that EFIT should have a more active role in the FRB. To that end, Mr. Neier and Mr. Hurlock met with APD, DOJ and the IM team to discuss the parameters for such participation to occur

5^th QUARTERLY REPORT STAUS OF BACKLOG OF CASES

Following is the EFIT backlog investigations as of November 14, 2022:

Total Backlog:  667 

Cases Aassigned to EFIT Investigators: 82

Use Of Force Investigations Previously Completed by IAFD Assigned to EFIT: 12

Sub-Total: 94

Use Of Force Investigations Previously Completed by IAFD Closed by EFIT:  12

Use Of Force Investigations Closed:  43

Total Completed: 55

Investigations Pending:  612

 External Force Investigation Team Fourth Quarterly Report, page 46:

• 4th Quarterly Report: April 22, 2022-Aug. 5, 2022

As of as of November 15, 2022, EFIT’s findings contained in the report are that 47 of the 55 completed Use of Force Investigations, or  85.45%, of backlog cases investigated by EFIT are within APD guidelines and SOPs. The breakdown of those 55 cases by level of force is reported as follows:

Level 1 Force:  1 case

Level 2 Force:  41 cases

Level 3 Force:  6 cases

Level 3 Force (Officer Involved Shooting):  7 cases

Total cases:  55

 Page 45, file:///C:/Users/HP/Downloads/960-221116%20EFIT%20QR-5.pdf

 Following are the number “Force Level” cases found out of policy:

Officer Involved Shooting (OIS) cases:  7, Out of Policy OIS cases: 2  

Intermediate Weapon System cases:  5, Out of Policy cases: 2

Empty Hand Takedown cases: 35, Out of Policy 1

Empty Hand Control cases:  6, Out of policy 1

Other cases:  2, Out of Policy -0-

Total cases:  55

 Page: 46,  4th Quarterly Report: April 22, 2022-Aug. 5, 2022

 EFIT 5^th QUARTERLY REPORT EXECUTIVE SUMMARY

Following is the edited Executive Summary contained in the EFIT 5^th Quarterly Report containing statistics gleaned from the entire report:

“32 out of the 461 [or 6.94%],   Use of Force Investigations closed by the External Force Investigation Team and  Internal Affairs  Force  Division (EFIT/IAFD)  were found not within the APD UOF policies. This is a reduction from the 7.2% reported in the previous quarterly report.  

Most significantly, 138 out of the 461  [or 29.93%]  of the Use Of Force investigations closed by EFIT and the Internal Affairs Division (IAFD)were out of compliance when evaluated against the Process Narrative …  utilized to assess investigations. …  [this is a reduction from 33.51% reported in the previous quarterly report].

While all the time frames negotiated by the City and the Department of Justice Use Of Force Investigations in the aforementioned Orders remain an obvious concern for Internal Affairs Force Division, EFIT is very encouraged by the approximately 11-point reduction.

EFIT’s next quarterly report, which is to be filed with the Court on February 23, 2023, will continue to contain an analysis of these issues based on the findings of both APD  Use Of Force compliance and case investigative compliance.

While this quarterly report addresses EFIT’s qualitative findings up to and including, November 15, 2022, EFIT’s statistical findings are as of October 27, 2022. However, the report provides a comprehensive review of EFIT’s experience since inception.

Since July 16, 2021, and as October 27, 2022, EFIT [and the Internal Affairs Force Division] responded to, and are investigating and/or monitoring a total of 6, 925 Use Of Force  incidents. These investigations are completed on an average of 53.86 days.

The  6,195 Use Of Force incidents includes 20 Officer Involved Shootings (“OIS”) and cumulatively made 3 referrals to the Multi-Agency Task Force (“MATF”)  for potential criminal violations [with]  … no referrals were made during this quarter.

In addition, 461 Use Of Force investigations were closed ,26 averaging a total of 86.8427 days for closure.

Supervisor reviews remain at an average of 20.08 days.

Of the 461 UOF cases closed, 32 UOF cases were out of APD Policy (6.94%)

28 and 138 of the 461 investigations (29.93%) failed to comply with the Process Narrative.

During this quarterly reporting period, APD experienced:

8 Officer Involved Shooting (OIS)  incidents

-0- accidental discharges

8 tactical activations

3 use of K9

9 use of an Electronic Control Weapon   (4 involving an impact weapon).

EFIT previously identified numerous issues regarding these cases. Specifically, during this most recent quarter, EFIT observed and/or discovered that Internal Affairs Force Division (IAFD)  made a noticeable improvement with IAFD’s handling Officer Involved Shootings  and other complex investigations.

EFIT/IAFD completed 461 investigations all within the 90-day time period outlined in the Amended Stipulated Order.

Since inception, EFIT assumed 13 Use Of Force  investigations …. .

During this reporting period EFIT did not assume any UOF investigations from IAFD, a striking improvement from prior quarters.

EFIT …  reported that it continues to witness a marked improvement in the [Internal Affairs Force Division (IAFD)].   Indeed, while there remains a great deal of work to be done, the atmosphere within IAFD improved substantially in this reporting period, the details of which are detailed below.

The EFIT Executive Team …  reported that, pursuant to the established protocols it is transitioning Internal Affairs Force Division Detective/Investigators to conduct interviews without EFIT’s direct supervision. As a result, 4 graduated the transition process and are conducting Use Of Force Investigations with minimal EFIT oversite.

Currently 12 Internal Affairs Force Division personnel are progressing through the Phases.   EFIT also noted previous concerns regarding supervision and sustainability, which are [included in the report]. It appears that APD is taking these issues seriously and is working closely with EFIT to address them. EFIT works closely with Internal Affairs Force Division Commander Norris to address these and other issues on a daily basis.

It is EFIT’s intention that this report provide the Court with a better understanding of the successes, recommendations and the failures of APD, particularly [the Internal Affairs Force Division].  

It is EFIT’s goal to teach, mentor and professionalize IAFD so that when EFIT’s assignment is completed, EFIT leaves the City with a sustainable division that investigates UOF incidents in a timely, thorough and professional manner.”

 PERSONNEL LEVELS

As of October 27, 2022, the Internal Affairs Force Division is currently staffed as follows:

11 Sworn fully trained;

4 Sworn on leave (counted in the 11 above);

3 Sworn Vacancies; 

10 Civilian Investigators fully trained;

6 Civilian Investigator in training;

4 Sergeants;

1 Acting Sergeants;

2 Lieutenants;

2 Deputy Commanders;

2 Acting Deputy Commanders; and

4 Support personnel.

The Internal Affairs Force Divison  is authorized to hire ” additional civilian investigators and this process of interviewing candidates will commence after the filing of this report.

APD COURT APPROVED SETTLEMENT AGREEMENT 

On November 9, 2022 Federal Court Appointed Independent Monitor James Ginger filed his 16th Report on the Compliance Levels of the Albuquerque Police Department (APD) and the City of Albuquerque with Requirements of the Court-Approved Settlement Agreement. The 16th Federal Monitors report is a 332 page report that covers the 6 month time frame of August, 2021 to January, 2022. The link to review the entire 16th Federal Monitors report is here:

https://www.cabq.gov/police/documents/959-221109-imr-16.pdf

Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Originally, APD was to have come into compliance within 4 years and the case was to be dismissed in 2020.

COMPLIANCE LEVELS

The 3 compliance levels can be explained as follows:

PRIMARY COMPLIANCE

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

SECONDARY COMPLIANCE

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

OPERATIONAL COMPLIANCE

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

16^th  FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The Federal Monitor reported that as of the end of the IMR-16 reporting period, APD’s compliance levels are as follows:

Primary Compliance: 100% (No change)
Secondary Compliance: 99% (No change)
Operational Compliance: 80%. (10% increase from 70%)

 15^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

 On May 11, 2022, Federal Court Appointed Independent Monitor filed his 15th Report on the Compliance Levels.  The 15th Federal Monitors report covers the 6 month time frame of August, 2021 to January, 2022. The link to review the entire report is here:

https://www.cabq.gov/police/documents/910-220511-imr-15.pdf

APD’s compliance levels in  the IMR-15 Federal Monitor’s report were as follows:

Primary Compliance: 100%
Secondary Compliance: 99%
Operational Compliance: 70%.

The 15th Federal Monitors report was a dramatic reversal from the past 3 monitor reports that were highly critical of the Keller Administration and the Albuquerque Police Department.

COMMENTARY AND ANALYSIS

It is very  disappointing that a mere 55 of the 667 backlog of cases have been resolved with 612 remaining.  In the 4^th quarterly report, only 43 of those cases were resolved. With the passage of time, those investigations become far more difficult, and no disciplinary action can be taken leading to the questioning if anything substantive will actually be accomplished with APD and its reform efforts other than carrying out a demand that the DOJ has made?

Notwithstanding, significant progress has been reported in the   EFIT  fifth   Quarterly Report.  With APD assuming self-monitoring in one third of the court order reforms, and after over 7 years of implementing the mandating DOJ reforms, and millions spent on training, APD appears to have finally turned the corner on implementing the 271 mandated reforms. APD Chief Harold Medina’s goal to attain full compliance within two years commendable, but in reality, means the public needs to brace itself for the DOJ being around for at least 4 more full years.

Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Primary Compliance is now at 100%, Secondary Compliance is now at 99% and Operational Compliance is now 80%. The problem is APD also has a history of improving compliance levels taking major steps forward only for it return to previous lower levels

EDITORS’ NOTE: THIS BLOG ARTICLE WAS ORGINALLY PUBLISHED ON OCTOBER 16 BUT WAS INADVERTINGLY DELETED. IT HAS BEEN UPDATED WITH CORRECTIONS AND CLARIFICATTIONS.

After upwards of six months of speculation, Democrat Pat Davis And Republican Trudy Jones have made it official and announced that they will not seek another term on the Albuquerque City Council. Both Davis and Jones said they  intend to serve the remainder of their terms  which run through the end of 2023. Both Jones and Davis said they are ready to make way for some new voices on the council.  A total of 4 City Council seats will be on next year’s municipal ballot and include District 2 now represented by progressive Democrat  Isaac Benton and District 4 now represented by conservative Republican Brook Bassan.

REPUBLCAN TRUDY JONES

Republican Trudy Jones, now 73,  was first elected to the City Council in October 2007 to represent District 8,  Albuquerque’s Far Northeast Heights and Foothills.  She has been elected 4 times to the council and will complete 16 years of service in 2023. She is a retired real estate agent and said she was drawn in 2007 to the public service element of the council. She said her focus since becoming a city councilor has been improving public facilities in her district and said she is especially proud of the investments in parks and roads.

As a city councilor and as a realtor, it was not at all surprising that  her primary  interest was in land-use planning and zoning matters.  She was the co-sponsor of  the city’s Integrated Development Ordinance, which in 2017 replaced the city’s old zoning code,  and chairing the city’s Land Use, Planning & Zoning committee for the past three years. She was a staunch supporter of the disastrous ART Bus project down the center of Central.   This past year she voted to support “Safe Outdoor Spaces” which are government sanctioned tent encampment for the homeless and “motel conversions” which will allow the city to purchase motels to be converted to long-term low-income housing. Jones said she wants to shepherd various infrastructure projects to the finish line before leaving office.

Jones joked  about her departure from the city council saying:

“I’m old and grumpy. … Now, I’m giving people enough notice that someone – several people, I would hope – should step up and decide to run for this seat.”

DEMOCRAT PAT DAVIS

Democrat Pat Davis, now 44, was first elected to the City Council in 2015 succeeding City Councilor Rey Garduno and in  2019  Davis was elected to serve another 4 year term.   Davis represents District 6, which encompasses  the International District, Mesa Del Sol, Nob Hill, Southeast Heights, and the University of New Mexico.

Davis is a former Washington D.C. police officer.  He came to New Mexico soon after being involved with a police officer shooting where he shot an African American man twice in the shoulder who was fleeing from Davis at a “traffic stop”.  Davis was sued in Washington, DC over the shooting and he relocated to Albuquerque and  became a UNM Campus Police officer.  Davis was  sued for civil rights violations as a UNM Campus Police Officer  and he was  accused of conducting  unlawful “search and seizures” at homes without a search warrant.  At least 2 of the civil rights violation cases Davis was sued over as a UNM Campus Police Officer settled out of court for upwards of $75,000.

Davis relocated  to New Mexico and  became a “progressive Democrat” saying his Republican conservative philosophy had changed, especially with respect to law enforcement,  and saying he had done a few  things as a police officer he was not “proud of”.  When  Davis left the UNM Campus Police, he started a new career and founded Progress Now,  a  politically progressive nonprofit and was employed as its Executive Director.  When it was revealed that Davis as a police officer  was involved with the shooting of an African American in Washington, DC, Progress Now demanded that he resign as President of the Albuquerque  City Council and from the City Council itself. The demand for his resignations came at the height of the “Black Lives Matter” movement and after the killing of George Floyd by Minneapolis, Minnesota Police Officers.

In 2016, the then first term city councilor Pat Davis ran for the United States Congress to replace then Congresswoman  Michelle Lujan Grisham who decided to run for Governor. Davis withdrew from the congressional  race when he polled at 3% and could not raise the money to run a viable campaign with Deb Haaland ultimately being elected to congress.

Davis is considered one of the leading progressives on the city council and  worked on the city’s early solar energy initiatives and co-sponsored legislation that strengthened the city’s immigrant-friendly status, and another bill that decriminalized possession of small amounts of marijuana years before the state legalized recreational cannabis. Once elected to the city council, Davis became a staunch supporter of the disastrous ART Bus Project, Republican Mayor Berry’s $120 million legacy project, and voted repeatedly to fund the project that ultimately  destroyed the character of Route 66. Davis refused to advocate to put the ART Bus project on the ballot for public approval and told his constituents that the  city  council did not have the authority to place it on the ballot for approval which was simply false.

In her first term, Governor Michell Lujan Grisham appointed Pat Davis to head up her task force to formulate legislation for the legalization of recreational marijuana, which was in fact legalized in 2021 by the New Mexico legislature.  Davis has formed a cannibus consulting firm that helps clients with applications for state cannibus  licensing and compliance. Davis is said to charge upwards of $10,000 to assist in securing a cannabis license for his clients.

Davis said he would still like to make headway on gun control policy before he leaves the city council.  His 2020 proposals to require gun locks and secure storage for firearms, and to ban guns at City Hall and other city facilities  failed and  he acknowledges the current council composition makes it unlikely he will gain traction on those issues.  Davis is building a small media network as publisher of three independent newspapers: the Corrales Comment, the Sandoval Signpost and The Paper.

By announcing his intentions now not to seek a third term, Davis said he is giving others interested in his job a chance to “research and build networks.”  Davis had this to say about his departure from the city council:

“I think the city has got to find some new voices to help move us forward. I want to give some folks an opportunity to try that and maybe somebody else will be more successful than I would be. … I have a lot of other things going on. … I can leave the City Council and still have a voice from the newspaper job that I could do more work in.”

The link to quoted news sources is here:

https://www.abqjournal.com/2549631/two-city-councilors-say-they-wont-seek-reelection.html

BOTH DAVIS AND JONES FAILED  AT APD POLICE OVERSIGHT

The Albuquerque City Council plays a crucial oversight role of the Albuquerque Police Department (APD) including controlling its budget. Jones  and Davis did nothing when it comes to Albuquerque Police Department (APD) reforms mandated by the Court Approved Settlement Agreement (CASA) after the Department of Justice found a “culture of aggression” and “excessive use of deadly force by APD.”  Neither have ever  challenged the previous and the current Mayor  Administrations and the APD command staff in any meaningful way demanding compliance with the Department of Justice (DOJ) consent decree reforms.

Each time the Federal Court appointed Monitor presented his critical reports of APD to the City Council, Jones  and Davis remained silent. Both declined to demand accountability from  Mayors Berry and Keller and hold the APD command staff responsible for dragging their feet on the reforms. Both Jones  and Davis have never attended a single one of the federal court hearings on the Court Approved Settlement Agreement (CASA) and the 16 Federal monitors report hearings.

MOST EGREGEOUS VOTES

The most egregious votes by Republican Trudy Jones  and Democrat Pat Davis was that they voted for the final adoption of the ABC-Z Comprehensive Plan in 2017, now called the Integrated Development Ordinance (IDO) which is now having  long term impact on our neighborhoods and favors developers.

It was in 2015 that former Mayor Richard Berry during his second term started the rewrite process of the city’s comprehensive zoning code and comprehensive plan to rewrite the city’s entire zoning code. It was initially referred to as the  ABC-Z comprehensive plan and later renamed the Integrated Development Ordinance (ID0) once it was passed.  In 2015, there were sixty (60) sector development plans which governed new development in specific neighborhoods. Forty (40) of the development plans had their own “distinct zoning guidelines” that were designed to protect many historical areas of the city.

Simply put, the IDO is and has always been an abomination that favors developers and the city’s construction and development industry. The 2017 rewrite was a rush job.  It took a mere 2 years to rewrite the entire zoning code and it emerged as the Integrated Development Ordinance.  The ABC-Z project rewrite was nothing more than making “gentrification” an official city policy and the “gutting” of long-standing sector development plans by the development community to repeal those sector development plans designed to protect neighborhoods and their character.

COUNCIL TURNOVER

The 2021 municipal elections resulted in a turnover of  4 city  council seats out of 9  with 2 city councilors deciding not to run again and  two  other Democrat  incumbents losing to challengers.  The City Council went from a 6 to 3 Democrat “progressive” majority to a 5 to 4 Democrat majority that is decidedly more conservative leaning thanks in large part to the election of Westside  conservative Democrat Louie Sanchez who defeated progressive Democrat Lan Sena, who was appointed by Mayor Tim Keller after the death of City Councilor Ken Sanchez, and the election of right  wing  Republican Dan Lewis who defeated Democrat Cynthia Borrego. Lest any one forgets, 5 years ago City Councilor Lewis ran and lost to Mayor Tim Keller in a landslide. Lewis  is already telling his supporters he intends to run for Mayor again in 2025.

After the December 7 City Council runoff election, the 5 Democrats on the new city council as of January 1, 2022 are:

District 1 Conservative  Louie Sanchez (Elected on November 2 defeating Lan Sena.)
District 2 Progressive Isaac Benton
District 3 Moderate Klarissa Peña (Ran unopposed on November 2 .)
District 6 Progressive  Pat Davis
District 7 Progressive Tammy Fiebelkorn

After the November 7 runoff election, the 4 Republicans on the new city council are:

District 5 Conservative  Dan Lewis (Newly elected)
District 4 Conservative  Brook Bassan
District 8 Conservative Trudy Jones
District 9 Conservative Renee Grout

Because of the 2021 municipal election and its  move to the conservative right, it has frequently taken to attempting to repeal  progressive  policies adopted by the previous city councils. That includes the city’s plastic bag ban repeal by the current council, attempting repeal the Mayor’s authority to issue emergency public health orders to deal with the pandemic and weighing whether to replace the zero-fare bus pilot program.

2023 MUNCIPAL ELECTION

The two other City Council District seats that will be on next year’s 2023 municipal ballot are District 2 represented by 4 term Democrat City Councilor Isaac Benton and first term District 4 Republican Brook Basaan.  Benton and  Basaan have not yet said if they will be running again, but if they do, it is expected they will have strong opposition.

DEMOCRAT ISAAC BENTON

Democrat Isaac (Ike) Benton, 71, is the District 2 City Councilor and was first elected to the council in 2005 and has been elected 4 times to 4 year terms.  Benton is a retired architect and avowed urbanist. Benton’s city council district includes a large area of downtown Central and the North Valley which leans left and is heavily Hispanic. Benton ran unopposed in 2015. In 2019,  Benton had 5 opponents with 4 having qualified for public finance. Four of his opponents were Hispanic males ranging from the ages of 28 to 39, and one was a Republican Hispanic female. In 2019 Benton was forced into a runoff with  Zack Quintero, 28, who was  a recent UNM Law School graduate and economist and Benton won the election. Quintero for his part ran unsuccessfully for State Auditor this year and eventually became the statewide campaign field coordinator for Governor Michelle Lujan Grisham’s successful re election campaign.

Benton, like Republican Trudy Jones and Democrat Pat Davis, voted for enactment of the Integrated Development Ordinance (IDO) in 2017. What is ironic is that Benton’s City Council District 2 has the biggest concentration of historical neighborhoods and it is the one district that is now being adversely affected the most  by the IDO as it encourages gentrification.

Benton, like Republican Trudy Jones and Democrat Pat Davis, did nothing when it came  to Albuquerque Police Department (APD) reforms mandated by the Court Approved Settlement Agreement after the Department of Justice found a “culture of aggression” and excessive use of deadly force by APD.  Benton never once challenged the previous and the current Mayor and the APD command staff in any meaningful way demanding compliance with the Department of Justice (DOJ) consent decree reforms.

REPUBLICAN BROOK BASAAN

Republican Brook Bassan is the District 4 City Councilor and she is serving her first 4 year term on the city council. In 2017 Republican Brook Bassan was elected to replace retiring 4 term Republican City Councilor Brad Winter. The major borders of District 4 are generally Montano/Montgomery on the South, Tramway on the North, Academy/Ventura/Holbrook on the East and Edith on the West.

It was in June  of this year that  Brook Bassan became embroiled in controversy when she supported and was the chief advocate and sponsor for  “Safe Outdoor Spaces” amendment to the Integrated Development Ordnance (IDO) that now permit 2 homeless encampments in all 9 city council districts. Safe Outdoor Spaces are city sanctione homeless encampments designed to have  40 designated spaces for tents  allowing  upwards of 50 people, requires hand washing stations, toilets and showers, require a management plan, 6 foot fencing and require social services offered.

On June 16,  a  neighborhood association meeting was scheduled in Bassan’s City Council District where Bassan  agreed to speak to discuss efforts to combat crime. Upwards of 150 angry constituents showed up and all hell broke loose during  and the meeting and it degenerated into a heated discussion of Bassan’s  sponsorship of “Safe Outdoor Spaces”.  Within days after the meeting, Bassaan issued a formal apology to her constituents for her sponsorship that generated front page Albuquerque Journal coverage and she withdrew her support of “Safe Outdoor Spaces”.

Bassan introduced legislation to place a moratorium on the land use as well as a repeal of the land use, but the damage has been done with upwards of 6 applications for Safe Outdoor Spaces made with 3 approved and with one appealed. The moratorium passed on a 5-4 vote and Mayor Keller vetoed it and the Council failed to override the veto with the necessary six votes.  The repeal is still pending with the City’s Environmental Planning Commission holding a hearing on the repeal and recommending that the city council repeal the legislation.  It likely the repeal will pass on a 5-4 vote, Mayor Keller will veto it and the Council will fail to override his veto with the requited 6 votes.

2022 CITIZEN PERCEPTION SURVEY SUGGESTS MOOD FOR COUNCIL CHANGE 

Given the fact that upwards of 4 city councilors could be replaced in the 2023 municipal election, the mood of the city and likely issues merit discussion for potential candidates.

Each year, the City of Albuquerque commissions a survey to assess residents’ satisfaction with various City services and issues relating to crime, homelessness, and public safety.  The study is required by City ordinance.  On September 6, the City has released the City of Albuquerque Citizen Perception Survey dated August 2022. The link to review the full survey is here:

https://www.cabq.gov/mayor/documents/final_coa-citizen-sat-2022.pdf

Five major categories covered by the survey are:

Quality of Life

Personal Safety

City Services

Homelessness

Direction City Is  Going

Albuquerque Police Department

The edited summary results of the survey are as follows:

SURVEY RESULTS ON QUALITY OF LIFE

“… When residents were asked, in an unaided, open-ended manner, what they believe are the things that make Albuquerque special, the most common responses include [the following]”:

“Weather or climate:  31%

The culture:  26%

The diverse population:  18%

Friendly people:  15%

The Sandia Mountains: 15%

The food/cuisine:  13%

When asked unaided what values are most important to Albuquerque, residents responded as follows:

23% of survey respondents mention family

17% cited safety/security

12% cited pride in community and culture/preserving culture are each mentioned

11% cited diversity.

17% of residents did not offer a response.

Residents rated the quality of life in Albuquerque as follows:

48% of residents rate the quality of life in Albuquerque as being either good at 42% or excellent at 6%.  30% give a fair rating.

17% of residents feel the quality of life in Albuquerque is either poor at 12% or very poor at 5%.

Fewer than half the respondents, 48%, rate the city’s quality of life as “excellent” or “good,” down from 59% in 2020. Though “good” remains the most common rating at 42%, 17% rated it as “poor” or “very poor. The percentage of residents who rate the quality of life in Albuquerque as being either good or excellent has fallen from 54% in 2018, and 59% during the height of the pandemic in 2020 to 48% currently.

COMMENTARY AND ANALYSIS ON QUALITY OF LIFE

The survey results revealed that over half those surveyed, 52%, say they are concerned about the city’s direction. This compares to 43% who say they are hopeful. In the December 2020 survey, 50% said they were hopeful.  The percentage of residents who say they are hopeful about the direction of the City has fallen from 50% in December of 2020 to 43% in 2022.

Although 43% of residents say they are either somewhat hopeful with 34% or very hopeful with 9% about the direction of the City,  52% say they are either somewhat concerned at 30% or very concerned at 22%.

Anglo residents with 58% are more apt than Hispanics with 44% to rate the quality of life in Albuquerque as being either good or excellent.

It is not surprising that many residents are concerned about the direction of the City given the challenges currently being faced across the nation. The survey noted that residents across the nation have concerns about where the country is heading as a whole.   [An example is] the website RealClear Politics calculates the average of different polls conducted among voters and adults across the nation and currently shows that an average of 74% believe the country is currently going on the wrong track, while an average of just 18% feel the country is heading in the right direction.

SURVEY RESULTS ON PERSONAL SAFETY

Crime and feelings of personal safety are important components to perceived quality of life.  Overall, 81% of Albuquerque residents say they feel in their neighborhood during the day.  (Very Safe at  51%  + somewhat at 30% = 81%)

 However, the 81%  drops to 57%  felling safe at night. (Very safe at  24%  +  somewhat safe at 33%  =  57%.) In other words, there is a day and night different of  24%.   The gap has narrowed from  2020, when 68% reported feeling safe in their neighborhoods at night and only 24% said they felt unsafe.

COMMENTARY AND ANALYSIS ON “PERSONAL SAFETY”

One of the most disturbing statistics from the Citizen’s Survey is that only 57% of those surveyed felt safe at night in their own homes.  It likely that 57% is on the very low side. At the core of citizens do not feel safe in their homes at night is the City’s high violent crime and homicide rates.

An Albuquerque Journal poll found that 82% of the public feel that crime is very serious, 14% said crime is somewhat serious for a staggering total of 96%.  Albuquerque has seen a major spike in violent crime and the rates are some of the highest in the country.

In the last 3 years, Albuquerque has had a breaking number of homicides each year.  In 2021 the city had 117 homicides.  As of August 30, APD reports that there have been 88 homicides, with the city well on it way to breaking the 2021 all time record.

apd-homicide-list-for-web-site-as-of-02sep2022.pdf (cabq.gov)

https://www.abqjournal.com/2528871/ex-those-most-likely-to-vote-also-worry-about-the-economy-and-public.html

SURVEY RESULTS ON CITY SERVICES

The percentage of residents who feel Albuquerque City Government is responsive to community needs has dropped from 48% observed in 2020, which was an all-time high dating back to 2011, to 32% a 17% drop.  Specifically, 32% agree Albuquerque City Government is responsive to community needs, 38% have a neutral opinion, 28% disagree that City Government is responsive.

These results are similar to those observed in previous studies dating back to 2011 with the exception of the 2020 study which saw a big spike in positive reviews. The 2020 results may have been an anomaly given that so much attention was being given to the COVID-19 pandemic and associated shutdowns coupled with the fact that the majority of residents give City Government high marks for the City’s response to COVID.

Residents were asked to rate how well Albuquerque City Government is handling specific issues using a five-point scale where five is excellent and one is very poor.

47% give City Government positive marks with a score of 4 or 5 when it comes to maintaining city parks and open space areas.

34% give positive ratings supporting renewable and clean energy programs.

34% give positive ratings for maintaining roads and streets

32% give positive ratings for supporting the local economy

COMMENTARY AND ANALYSIS ON CITY SERVICES

It’s very clear from the survey that dissatisfaction with city response to community needs has increased dramatically.  The percentage of residents who feel Albuquerque City Government is responsive to community needs has dropped from 48% observed in 2020, which was an all-time high,  to 31% found in 2021, a 17% decline.   This is very difficult to accept, let alone understand, given that Mayor Tim Keller has submitted, and the City Council has approved in 2 consecutive years the 2  largest city budgets in its history, one for $1.1 Billion in 2021 and the other for $1.4 billion in 2022.

On May 17, 2021, the Albuquerque City Council voted unanimously to approve the 2021-2022 city budget of $1.2 billion, $711.5 million of which is the General Fund. The General Fund covers basic city services such as police protection, fire and rescue protection, the bus system, street maintenance, weekly solid waste pickup, all city park maintenance, city equipment, animal control, environmental health services, the legal department, risk management, and payroll and human resources

On May 16, 2022, the Albuquerque City Council approved the 2022-2023 city budget. The overall budget approved by the city council was for $1.4 Billion with $841.8 representing the general fund spending with an increase of $127 million, or 17.8%, over the 2021-2022 c budget of $1.2 Billion.

The link to city approved budgets is here:

https://www.cabq.gov/dfa/budget/annual-budget

SURVEY RESULTS ON THE HOMELESS

“The issue of homelessness continues to be a major challenge in Albuquerque as it is in many other cities.

70% feel the City is doing a poor job of addressing homelessness

9% of residents give City Government positive marks for addressing the homelessness issue

20% give a mixed or neutral rating.

The percentage of residents who give the City positive scores for addressing homelessness had risen from 13% in 2019 to 29% in 2020 but it has now fallen by 20% and is  9% currently.

Although there has been a lot of attention focused on homelessness in the news, % of Albuquerque residents say they are aware the city is the Gateway Center.  The shelter will be a 24/7 shelter providing to women experiencing homelessness during the first phase of its operation.”

COMMENTARY AND ANALYSIS ON THE HOMELESS

The Citizens Survey of 70% feeling the city is failing in its response to the homeless is likely inaccurate and the public attitude has only gotten worse. A recent Journal poll found that 77% of the general public believes the homeless crisis is very serious and 16% feel it is somewhat serious with a staggering total of 93%. What is clear from the Citizen Perception Survey is that Albuquerque residents are dissatisfied with the Keller Administration’s response to the homelessness crisis despite the city’s huge financial commitment to dealing with the homeless.   The survey confirms that residents feel Mayor Tim Keller and his admiration are failing.

70% of citizens survey respondents rate the city poorly for its performance in dealing with the homeless crisis.  This includes 41% who gave city hall the lowest possible rating.  Meanwhile, only 9% gave the city’s homelessness response a favorable review. In other words, 7 times more people rate the city poorly on the issue than offer a positive assessment.  This is a dramatic change from 2020 when only 36% gave the city poor marks for how it was tackling homelessness, including just 22% who offered the worst rating, while 29% provided a positive assessment.  There has been a dramatic 20% drop in how people feel the city is dealing with homeless from 29% in 2020 to 9% in 2022.

The 9% approval rating in the citizens survey is likely very alarming to Mayor Tim Keller and his administration.  Since day one from becoming Mayor on December 1, 2018, Mayor Keller has made dealing with the homeless a major cornerstone of his administration so much so that he advocated the construction of a 24-7 homeless shelter.  This ultimately resulted in the purchase of the massive 560,000 square foot Gibson Medical center, formerly the Lovelace Hospital, for $15 million. The facility is being renovated and it is anticipated to open in the winter of 2022 as a 24/7 shelter.

The Keller Administration has adopted a housing first policy when it comes to dealing with the homeless crisis which also includes funding provided to at least 10 service providers. This past fiscal year 2021 ending June 10, 2021, the Family and Community Services Department and the Keller Administration have spent upwards of $40 Million to benefit the homeless or near homeless. The 2021 adopted city budget for Family and Community Services Department provides for mental health contracts totaling $4,329,452, and substance abuse contracts for counseling contracts totaling $2,586,302 and emergency shelter contracts totaling $5,688,094, affordable housing and community contracts totaling $22,531,752, homeless support services contracts.

Mayor Keller’s 2022-2023 approved budget significantly increases the Family and Community Services budget by $24,353,064 to assist the homeless or near homeless by going from $35,145,851 to $59,498,915. A breakdown of the amounts to help the homeless and those in need of housing assistance contained in the 2022-2023 budget is as follows:

$3,773,860 total for mental health contracts (Budget page105.)

$2,818,356 total substance abuse contracts for counseling (Budget page 106.), up by $288,680 from last year.

$42,598,361 total for affordable housing and community contracts with a major emphasis on permanent housing for chronically homeless.

$6,025,544 total for emergency shelter contracts. 

$4,282,794 total homeless support services, up $658,581 from last year.

The links  to the adopted 2021-2022 and 2022-23 approved budgets are here:

https://www.cabq.gov/dfa/documents/fy22-approved-budget-numbered-w-hyperlinks-final.pdf

https://www.cabq.gov/dfa/documents/fy23-proposed-final-web-version.pdf

SURVEY RESULTS ON DIRECTION THE CITY IS GOING

The percentage of residents who rate the quality of life in Albuquerque as being either good or excellent has fallen from 54% in 2018 to 48% in 2022.  The percentage of residents who say they are hopeful about the direction of the City has fallen from 50% in December of 2020 to 43% in 2022. Although 43% of residents say they are either somewhat hopeful with 34% or very hopeful with 9% about the direction of the City, just over 52% combined  say they are either somewhat concerned at 30% or very concerned at 22%.

COMMENTARY AND ANALYSIS ON DIRECTION CITY IS GOING

The survey results on citizens perception on the direction the city is going should is a major red flag of failure for Mayor Keller and the City Council.  A  very disturbing trend revealed by the survey is that residents show less satisfaction with current quality of life in the city and there is growing concern about Albuquerque’s future.  Although 50% of those surveyed believe Albuquerque is doing “about the same” as other cities dealing with problems and carrying out its responsibilities, the survey generally shows worsening perceptions of life in the city.

SURVEY RESULTS ON ALBUQUERQUE POLICE DEPARTMENT

“Residents were asked to rate how strongly they either agree or disagree with several statements relating to the Albuquerque Police Department (APD) using a 5-point scale where 5 is strongly agree and 1 is strongly disagree.  [The results of the survey were]:

 53% of residents agree APD is respectful in its treatment of citizens as indicated by a score of 4 or 5.  This is up from 48% two years ago. That is down from 49% in 2019 and the lowest number for any survey going back to at least 2011.  20% strongly agreed compared to 15% who disagree, with a score of 1 or 2.

29% have neutral or mixed feelings about APD with a score of 3.

 47% of residents agree APD reflects the values of the City’s residents, with 18% disagreeing and 30% have a neutral opinion of APD and 27% disagree.”

According to the citizen’ survey, 38% of residents agree APD is doing a good job of addressing public safety issues and making quick responses to emergencies, while 30% have a neutral opinion and 27% disagree. 

 A plurality, or 41%, of those surveyed said the ongoing U.S. Department of Justice-mandated reform effort within APD has had no impact, while 24% say it has been positive and 14% say it has been negative.  There is no getting around it, even with the recent news that APD has improved in compliance levels with all of the reforms, APD still has a major image problem.

Over the last 7 years, the DOJ reforms have place great emphasis on implementing constitutional policing practices, increased training and crisis intervention and implemented community policing councils and a Citizens Police Oversight agency. Despite all the efforts made, an astonishing 41% of those feel the reforms have had no impact on APD.

COMMENTARY AND ANALYSIS ON ALBUQUERQUE POLICE DEPARTMENT

The 38% of residents agreeing that  APD is doing a good job with response times to emergencies  is very low and should come as  no surprise. There have been news investigative reports on APD’s response times for Priority 1 calls. Priority 1 calls include shootings, stabbings, armed robberies, sexual and aggravated assaults, domestic violence with weapons involved and home invasions.  According to the data, the time it takes officers to get to a crime scene stayed relatively consistent between January 2018 to May 2021 and was roughly between 9 and 12 minutes. In 2020, it was reported that there was a 93% increase in APD response time over a 9-year period. In 2018, clearing a scene ranged from an hour to an hour and 12 minutes. Fast forward to 2021 and APD was averaging more than 2 hours to write reports, gather evidence and interview witnesses, a full hour longer than three years ago.

 https://www.kob.com/albuquerque-news/abq-4ward-examining-apds-response-times/6204745/

https://www.koat.com/article/apd-response-times-continue-to-climb/31028667

https://www.petedinelli.com/2020/02/24/93-increase-in-apd-911-response-times-since-2011-48-minutes-average-response-time-to-arrive-increase-despite-new-priority-call-system/

FINAL COMMENTARY

The 2023 municipal election will indeed give voters a real opportunity to select upwards of 4 new city councilors that could dramatically change the direction of the city policy as well as the balance of power.

The city is at a crossroads and with any luck citizens who are truly concerned about the direction of the city will step up to the plate and run for city council and provide real choices and solutions to the city’s problems.

On October 7, Second Judicial District Court Judge Elaine P. Lujan ruled to outlaw the New Mexico Civil Guard from publicly acting as a military unit without authorization or assuming the role of law enforcement by using organized force at public protests or gatherings.  Judge Lujan also ruled to ban such activity by the group’s directors, officers, agents, employees, members and any of their successor organizations and members.  Judge Elaine Lujan ruled the New Mexico Civil Guard broke the law with their actions during a protest in 2020 and must pay a fine.  Lujan’s ruling specifies the Civil Guard can no longer publicly organize and operate as a military unit. The group must also pay $8,340 to District Attorney Raúl Torrez’s office for the legal fees involved in a fight over getting court documents.

The lawsuit stems from the June 15, 2020 Old Town protest over the controversial statue of Spanish conquistador Juan de Oñate.   Dressed in camouflage attire and sporting assault rifles and other military-style gear, members of the New Mexico Civil Guard showed up at the Old Town protest on June 15, 2020.  They argued  their purpose was to protect public property.  One man not a member of the group was ultimately arrested for aggravated battery in connection with a protester who was shot and injured.  Though no one from the group was arrested on criminal charges, Torrez went to court to seek a civil permanent injunction against the New Mexico Civil Guard in July 2020.

Judge Lujan granted a motion for a permanent injunction filed by Bernalillo County District Attorney Raúl Torrez in a lawsuit he filed July 14, 2020  alleging members of the New Mexico Civil Guard violated state law by exercising or attempting to exercise the functions of a peace officer without authority.  Torrez alleged that the New Mexico Civil Guard organized and operated as a military unit without having been called to military service by the governor as required by law. The governor has exclusive authority under the Constitution to call on the militia to keep the public peace.

In 2021, the state court rejected the militia group’s arguments that the District Attorney’s request for injunctive relief infringed on the group’s First Amendment right to free speech and association and its Second Amendment right to bear arms. Judge Lujan’s latest decision to grant the injunction requested effectively ends the case.

In her latest ruling, the judge also found the group violated a court order requiring they furnish someone from the group for a deposition. At a deposition earlier this year, Bruce Leroy Spangler Provance, one of the founders of the group, which had more than 150 members at one time, admitted to destroying all records of the group and pouring bleach on his laptop and burning it. Dressed in what appeared to be Civil War attire, Provance turned over a piece of a paperbag to attorney Baker that had a drawing of a devil in flames and a crude sexual drawing involving a figure labeled, “Your Mom.” Provance told Baker the drawings were intended “to make me smile while I had to look at you.” Then he abruptly left the deposition.

At the deposition, Bruce Leroy Spangler Provance, one of the founders of the group, which had more than 150 members at one time, admitted to destroying all records of the group and pouring bleach on his laptop and burning it. Dressed in Civil War attire, Provance turned over a piece of a paperbag to attorney Baker that had a drawing of a devil in flames and a crude sexual drawing involving a figure labeled  “Your Mom.” Provance told Baker the drawings were intended “to make me smile while I had to look at you.” Then he got up and abruptly left the deposition.   In her October  7 ruling granting the permanent injunction, Judge Lujan wrote:

“The circumstances here clearly show a flagrant, willful, bad faith, callous disregard of the Court’s order.”

The criminal defense attorney and  former Supreme Court Justice Paul Kennedy,  the attorney representing the militia group withdrew from the case and the group did not  retain a new lawyer until after a court deadline.  Torrez’s office was assisted by Albuquerque attorney Mark Baker and the Institute for Constitutional Advocacy and Protection at Georgetown University. Baker and the Institute worked for free over the past two years of litigation in the case. The ruling is considered the first of its kind in the country because it relied on the DA’s enforcement authority.

REACTION TO RULING

District Attorney Raúl Torrez had this to say of the ruling:

“The overarching message today is that in the state of New Mexico there is no right, fundamentally, to establish your own paramilitary unit or police unit without authorization from either the New Mexico constitution or the statutory framework. This is clearly a victory for the rule of law. … As individuals, they can be in public. As individuals, they can bear their arms. What they cannot do is engage in a coordinated effort to present a show of force in public that would threaten and intimidate anyone in the public”

“[Since the filing  of  the lawsuite] this group has not appeared in an armed coordinated fashion at any public protest. And that’s exactly the outcome that we were looking for … a very clear understanding on their part, that engaging in that behavior would lead to consequences. … [This] fundamentally represents a victory for the rule of law….

We’re trying to prevent violent extremism.  … I think the lesson to any other group of individuals, regardless of their ideology and political beliefs, is they should expect the same response from this office should they engage in armed and coordinated action of the type that was undertaken by the New Mexico Civil Guard.  They will simply find themselves the subject of a lawsuit, which now has the force of having a district court judge in this district stating, unequivocally, this action does not violate the First Amendment.

This action does not violate the Second Amendment and they are strictly prohibited from either assuming unlawful paramilitary [activities] or policing. … It’s important for us to state unequivocally that there is no tolerance for [this type of] behavior, regardless of your political ideology.”

Mary McCord, an attorney with the Institute for Constitutional Advocacy and Protection had this to say:

“As we continue to see more and more brazen actions taken by vigilante and private militia groups, … including the attack on the U.S. Capitol on Jan. 6, 2021, it’s all the more important to use these tools to establish that not only that this conduct is a danger to the public safety but it is also not constitutionally protected. … Bottom of Form

This is a case about conduct, not the content of any type of speech or association.”

The link to quoted news source is here:

https://www.abqjournal.com/2541198/judge-restricts-nm-civil-guard.html

https://www.kob.com/new-mexico/district-court-judge-rules-to-restrict-new-mexico-civil-guard/#:~:text=ALBUQUERQUE%2C%20N.M.%20%E2%80%94%20A%20district%20court,operate%20as%20a%20military%20unit.

https://www.usnews.com/news/best-states/new-mexico/articles/2022-10-18/judges-ruling-puts-restrictions-on-new-mexico-civil-guard

LITIGATION HISTORY

It was on July 14, 2020 that Bernalillo County District Attorney Raúl Torrez filed a civil lawsuit to stop the New Mexico Civil Guard private militia from usurping the state’s military and law enforcement authority. The lawsuit was filed against the New Mexico Civil Guard and 14 of its members who “include some individuals associated with white supremacist and neo-Confederate organizations,” according to the civil complaint.

The lawsuit argued that the New Mexico Constitution says civilian militias can only be activated by the governor and alleges the New Mexico Civil Guard is acting like law enforcement. According to the lawsuit, the New Mexico Civil Guard are acting like law enforcement by holding training sessions, outfitting themselves with military equipment and gear, and patrolling protests armed and in uniform without any legal authority to act in any kind of law enforcement capacity.

The lawsuit alleges that membership includes people associated with white supremacist and neo-Confederate ideology. According to the lawsuit:

“[NMCG has routinely used paramilitary tactics] at protests, demonstrations, and public gatherings throughout New Mexico, providing wholly unauthorized, heavily armed, and coordinated ‘protection’ from perceived threats.”

The federal civil complaint makes specific allegations that are alarming as to the actions of the New Mexico Civil Guard. Paragraphs 2, 4, 5, 7 and 8 of the complaint are succinct and outlines the “New Mexico Civil Guard” activities and what they are all about:

“2. The so-called “New Mexico Civil Guard” (NMCG) is not an organized police force or an organized part of the military. Nor is it affiliated with or overseen by the Government. Yet this group formed for the claimed purpose of maintaining the peace and both fashions itself and pretends to function as a part of the state military. NMCG’s coordinated, armed, and uniformed presence at public events results in intimidation and creates a chilling effect on the exercise of First Amendment rights to address matters of public concern. NMCG’s attempt to operate as a private police or military unit in Bernalillo County is a per se public nuisance that must be abated to protect public safety, allow the free and open use of public forums, and minimize violent armed confrontations.

… .
5. NMCG has unlawfully exercised and intends to continue to unlawfully exercise the power to maintain public peace reserved to peace officers. NMCG’s membership is not composed of peace officers, and New Mexico law clearly provides that NMCG and its members have no civil or military authority to maintain the public peace.”
… .

“7. This is a case about paramilitary action that threatens public safety and intimidates the public’s exercise of First Amendment rights. It is not a case about gun ownership, gun possession, or self-protection. Importantly, NMCG’s paramilitary activity is not protected by the Second Amendment, and the relief that the State seeks does not run afoul of Defendants’ Second Amendment rights. … .

“8. Nor is this a case about political viewpoints. To the extent NMCG has certain white supremacist ties, their viewpoint heightens the risk of violence at certain public events because of the antipathy they hold for particular groups of protesters. But the threat posed to public safety by paramilitary actions at public demonstrations or gatherings exists regardless of the paramilitary organization’s underlying ideology. Put simply, there is no place in an ordered civil society for private armed groups that seek to impose their collective will on the people in place of the police or the military. … .”

The link to the civil complaint filed is here:

https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2020/07/State-v.-NM-Civil-Guard-Filed-Verified-Complaint.pdf

https://www.cnn.com/2020/07/14/us/new-mexico-militia-group-lawsuit/index.html

THE SECOND AMENDMENT TO UNITED STATE CONSTITUTION

The United States Congress needs to take another look at the language of the he Second Amendment of the United States Constitution which reads:

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Over the years, the United State Supreme Court has expanded the Second Amendment right to right to keep and bear arms. It is referred to as the “right to bear arms” and is a right for people to possess weapons or arms for their own defense.

“In United States v. Cruikshank (1876), the U.S. Supreme Court recognized that the right to arms preexisted the Constitution and in that case and in Presser v. Illinois (1886) recognized that the Second Amendment protected the right from being infringed by Congress.

In United States v. Miller (1939), the Court again recognized that the right to arms is individually held and, citing the Tennessee case of Aymette v State, indicated that it protected the right to keep and bear arms that are “part of the ordinary military equipment” or the use of which could “contribute to the common defense.”

In its first opportunity to rule specifically on whose right the Second Amendment protects, District of Columbia v. Heller (2008), the Court ruled in the landmark case that the amendment protects an individual right “to keep and carry arms in case of confrontation,” not contingent on service in a militia. The Supreme Court also said that restrictions on the possession of firearms by felons and the mentally ill, on the carrying of arms in sensitive locations, and with respect to the conditions on the sale of firearms could be permissible under the constitution.”

https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms_in_the_United_States

CITIZEN MILITIAS DEFINED

“Private Militias”, more commonly known by the general public as “Citizen Militias”, are loosely defined as “armed military groups that are composed of private citizens and not recognized by the United State Government or state governments.” Upwards of half the states maintain laws regulating private militias. Generally, these laws prohibit the parading and exercising of armed private militias in public, but do not forbid the formation of private militias.

THE INSURRECTION THEORY OF SECOND AMENDMENT

“Legal and political scholars have argued that citizen militias are driven by what is known as the insurrection theory of the Second Amendment. Under this view, the Second Amendment grants an unconditional right to bear arms for self-defense and for “rebellion against a tyrannical government” defined as when a government turns oppressive and private citizens have a duty to “insurrect” or take up arms against their own government.

 The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951):

“[W]hatever theoretical merit there may be to the argument that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.”

 Legal scholars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government.”

https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html

In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all. In other words, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the-peace, firearms, or even riot statutes.

Links to quoted sources are here:

https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html

https://law.jrank.org/pages/10067/Second-Amendment-PRIVATE-MILITIAS.html#ixzz6RZtSrv00

ONLY CERTIFIED LAW ENFORCEMENT AUTHORIZED “TO KEEP THE PEACE”

The New Mexico statutory law is very clear as to the definition of a “peace officer”. The law is also very clear that only peace officers are authorized to maintain the peace and make arrests. The New Mexico Civil Guard are not law enforcement and have likely violated the laws with their actions that govern peace officers

It is § 30-1-12(C) (1963) of the New Mexico statutes that defines a peace officer as anyone who is elected or appointed and who is:

“vested by law with a duty to maintain public order or to make arrests for crime.”

https://law.justia.com/codes/new-mexico/2018/chapter-30/article-1/section-30-1-12/

Under §29-1-9 (2006) of the New Mexico statutes the duties, responsibilities and authority to lawfully maintain the peace are expressly reserved to peace officers. The statute provides:

“[N]o person shall assume or exercise the functions, powers, duties and privileges incident and belonging to the office of special deputy sheriff, marshal, policeman or other peace officer without first having received an appointment in writing from a person authorized by law to appoint special deputy sheriffs, marshals, policemen or other peace officers . . . .”

Section §30-27-2.1 of the New Mexico statutes also defines what a police officer is, what impersonating a police officer is and it illegal for anyone to impersonate a peace officer. The statute provides:

… [A] “peace officer” means any public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes.

Impersonating a peace officer consists of:

(1) without due authority exercising or attempting to exercise the functions of a peace officer; or

(2) pretending to be a peace officer with the intent to deceive another person.
… Whoever commits impersonating a peace officer is guilty of a misdemeanor. Upon a second or subsequent conviction, the offender is guilty of a fourth-degree felony.

NEW MEXICO LAW ENFORCMENT HEAVILY REGUALTED

Much like doctors, lawyers, and teachers, law enforcement in New Mexico is heavily regulated profession. There are minimum qualification and training requirements for all state certified law enforcement. It is the Law Enforcement Training Act that creates the law-enforcement academy to provide a planned program of basic law enforcement training and in-service law enforcement training for police officers.

The academy requires minimum training requirements for certification, and requirements for continuing training “to constantly upgrade law enforcement within the state.” (NMSA 1978, §§ 29-7-1 to – 15, passed in 1969, and amended through 2020). The statute provides for suspension and revocation of law-enforcement certification based on dishonesty or fraud, the commission of a felony, or violations of law involving moral turpitude. (§ 29-7-13,) NMSA 1978. During the 2020 legislative session, the New Mexico Legislature amended the Act to require revocation of law-enforcement certification for crimes involving the use or threatened use of force. ( NMSA 1978, § 29-7-15)

NEW MEXICO MILITARY HEAVILY REGUALTED

The New Mexico Civil Guard is not military and are not authorized under the law to use military force. The New Mexico Civil Guard is likely violating the laws that govern government militias, the National Guard and the New Mexico state defense force.

Under New Mexico statutory law, entities that are authorized to use military force on the State’s behalf are collectively known as the “militia”. It is Section 20-2-1 of the New Mexico Statues that outlines 3 distinct components of the militias:

1. “Militia” means all the military forces of this state, organized and unorganized, whether active or inactive; but excludes the regularly organized police forces of the state or its political subdivisions and excludes the civil air patrol division.
2. “National guard” means the New Mexico army national guard and the New Mexico air national guard. The national guard is federally recognized and has a dual state and federal character and mission. When used in Chapter 20 NMSA 1978 national guard shall refer to the national guard of New Mexico unless otherwise stated.
3. “New Mexico state defense force” means that part of the militia of the state which is not federally recognized. It is exclusively a state entity. Its standing cadre is a component of the organized militia; its ranks are filled upon order of the governor from the unorganized militia. When used in Chapter 20 NMSA 1978, state defense force shall refer to the New Mexico state defense force.

https://law.justia.com/codes/new-mexico/2013/chapter-20/article-2/section-20-2-1/

Note that 20-2-1 section A makes it clear that militia does not include organized police forces of the state, counties and municipalities all which are separate political subdivisions. Note also that the New Mexico National Guard is federally recognized and can be called or ordered into active federal service ostensibly by the United States Defense Department or order of the President. The State Defense Force is “exclusively a state entity and not federally recognized as is the National Guard. The ranks of the State Defense Force can be filled by the unorganized militia only by order of the Governor. Absent activation into the State Defense Force by the Governor, any unorganized militia lacks authority to operate as a military force.

FUNCTIONS OF NM NATIONAL GUARD AND STATE DEFENSE FORCE

It is not the function of the National Guard nor the State Defense Force to exercise the powers and duties of peace officers. It is New Mexico statutes § 20-2-3, dealing with Military Affairs, that designates the Governor as only one who has the power to call out the national guard and the militia and the statute outlines those instances.

• 20-2-3 provides:

“A. The governor may, in case of insurrection, invasion, riot or breach of the peace or of imminent danger thereof or in case of other emergency, order into active service of the state the militia or any components or parts thereof that have not been called into federal service.  As used in this section, “emergency” includes any man-made or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requiring the resources of the state.

B. The governor may also order any member of the national guard to active state service … for the following reasons:

(1) to protect critical infrastructure in the state from a cybersecurity threat or security vulnerability;
(2) to protect an information system owned or operated by the state from a cybersecurity threat or security vulnerability;
(3) to protect information that is stored on, processed by or transiting on an information system owned or operated by the state from a cybersecurity threat or security vulnerability;  or
(4) to identify the source of a cybersecurity threat.

C. A member of the national guard called to active service pursuant to … t Subsection B … shall not have any police powers or arrest authority. … .

D. In case of any breach of the peace, tumult, riot or resistance to process of this state or imminent danger thereof, the sheriff of a county may call for aid from the governor as commander-in-chief of the national guard.  If it appears to the governor that the power of the county is insufficient to enable the sheriff to preserve the peace and protect the lives and property of the peaceful residents of the county or to overcome the resistance to process of this state, the governor shall, on application of the sheriff, order out such military force as is necessary.

E. When any portion of the militia is called out for the purpose of suppressing an unlawful or riotous assembly, the commander of the troops shall cooperate with the civil officers to the fullest extent consistent with the accomplishment of the object for which the troops were called. … .

F. When any portion of the militia is ordered into active service pursuant to this section in case of an emergency, the militia may provide those resources and services necessary to avoid or minimize economic or physical harm until a situation becomes stabilized and again under local self-support and control, including the provision, on a temporary, emergency basis, for lodging, sheltering, health care, food and any transportation or shipping necessary to protect lives or public property;  or for any other action necessary to protect the public health, safety and welfare.

G. … .

https://codes.findlaw.com/nm/chapter-20-military-affairs/nm-st-sect-20-2-3.html

ORGANIZED AND UNORGANIZED MILITIAS DEFINED UNDER NEW MEXICO LAW

It is §20-2-2 of the New Mexico statutes that defines “organized and unorganized militias” as follows:

“The militia is composed of the organized and the unorganized militia.

A.The organized militia is the national guard and the standing cadre of the state defense force and such parts of the unorganized militia when and as may be activated, enrolled or enlisted into the national guard or into the state defense force.

1. The unorganized militia is comprised of all able-bodied male citizens of the state and all other able-bodied males who have or shall have declared their intentions to become citizens of the United States and are residents of the state who are not less than 18 or more than 45 years of age, but who shall not be more than 64 years of age if they shall have earlier served in or retired from the national guard; subject to … [specific] listed exceptions … .”

COMMENTARY AND ANALYSIS

Bernalillo County District Attorney Raul Torrez  is commended and congratulated for suing the New Mexico Civil Guard and securing a permanent injunction against the New Mexico Civil Guard. Now that he has been elected New Mexico Attorney General, hw should seek to have the 2023 New Mexico legislature to outlaw citizen militias. The reality is, the one lawsuit only affects one civilian militia group in the State when there are likely far more.

Further, there is nothing that will prevent such militias from forming in the future nor prevent such citizen militias from other states to come to New Mexico. Citizen Militias are not regulated in the State of New Mexico. For these reasons the New Mexico legislature should enact a state law outlawing or regulating citizens militias in the state.

The State of New Mexico should enact legislation that defines with more particularity what a “citizen miltia” is and either ban them entirely or regulate all citizens militias. If New Mexico does not ban citizen militia’s outright, a Citizen’s Militia Registration Act could be enacted. Citizen militias need to be defined along similar lines of how “gangs” are defined under federal criminal law.

https://nij.ojp.gov/topics/articles/what-gang-definitions

A “citizens militia” needs to be defined as:

“An association of three or more individuals, whose members collectively identify themselves by adopting a group identity employing one or more of the following: a common name, slogan, identifying sign, symbol, flag, uniforms or military apparel or other physical identifying marking, style or color of clothing, whose purpose in part is to engage in the protection of private property and other people. A registered citizens militia may employ rules for joining and operating within the militia and members may meet on a recurring basis.”

A Citizen Militia Registration Act would require citizen militias to:

Register with the New Mexico Homeland Security Office and the New Mexico State Police.

Allow only American Citizens to be members of a citizen militia.

Require members to register their firearms with the State.

Pay yearly regulation fees and firearm certification fees and carry liability insurance.

Identify all their members by name, address and contact information.

Prohibit felons from joining.

Limit their authority and powers so as to prevent militias to engage in law enforcement activities.

Require members to pass criminal background checks and psychological testing.

Mandate training and instructions on firearm use and safety.

Require all militias and its members to agree to follow all local, state and federal laws and apply for permits to attend functions sponsored by others.

Failure to register as mandated would be a felony.

https://nij.ojp.gov/topics/articles/what-gang-definitions

CONCLUSION

Those who take it upon themselves to associate and bear arms calling themselves “citizen militias” take it to the extreme when they attend protests fully armed in military attire proclaiming they are there to assume the responsibility law enforcement to protect people and property. Such attendance amounts to nothing but vigilantism. The state can and should act to ban citizen militias or enact legislation to regulate them before someone gets seriously hurt or killed.

On October 18, declaring that the city is in need of between 13,000 and 33,000 housing units to address the city’s short supply of housing, Mayor Tim Keller announced his “Housing Forward Abq” plan.  According to Keller, the city needs to work in close conjunction with the city’s residential and commercial real estate developers to solve the city’s housing shortage crisis.

In a speech before the Economic Forum, a group of prominent business leaders comprised of realtors, bankers and developers, Keller said the goal of his Housing Forward ABQ plan is for the city to bring 5,000 new housing units to the city by 2025. He is proposing to do so mostly through the redevelopment of hotels, or conversions to permanent housing,  and changing zoning codes to allow for the development of “casitas”.

According to Keller, the city has upwards of 40 new people moving into the Albuquerque area every day who are in need of housing. Keller told the Economic Forum the city was a “net winner” coming out of the COVID-19 pandemic with millennials now working jobs that are remote, but who want to live in an affordable city that has the outdoor experience comparable to places like Denver.

On January 30, 2022, the New Mexico Mortgage Finance Authority (NMFA) initiated housing survey to identify and address housing needs across the state.  The final housing strategy analysis from the NMFA found that Bernalillo County and the Albuquerque area needs 10,153 more housing units by 2025 to account for expected population growth.

https://www.abqjournal.com/2465514/mfa-launches-resident-housing-survey.html

Keller proclaimed the city’s Integrated Development Ordinance (IDO), which lays out zoning and subdivision regulations, is now outdated although it was enacted in 2017. Keller proclaimed the IDO must be changed to allow for the expansion of housing supply in the city. Mayor Keller is calling for the conversion of hotels and commercial office space into housing and it is critical to increasing the city’s housing supply.  Keller also characterized the redevelopment of hotels and commercial property to housing units as “low-hanging fruit” for the city.  Keller said that “private-public partnerships” are critical going forward to deal with the housing shortage. Keller said the IDO has pushed developers away from addressing the housing supply in years past.

Keller said this:

“We are small enough where, theoretically, you can find a nice place to live. … But the challenge is running out of houses … Because of our growth, [the city’s housing shortage] is a crisis [because of the Integrated Development Ordinance]. …  The City of Albuquerque is terrible about this. … We add $100,000 to every unit – every unit – to convert with additional building code regulations compared to other cities. That’s why the private sector is not doing this already.”

https://www.abqjournal.com/2543570/keller-housing-supply-is-a-crisis.html

KELLER’S “HOUSING FORWARD ABQ” PLAN

Mayor Tim Keller’s  “Housing Forward ABQ” plan  is a “multifaceted initiative” where  Keller wants  to add 5,000 new housing units across the city by 2025 above and beyond what private industry normally creates each year. As it stands now, the city issues private construction permits for 1,200 to 1,500 new housing units each year. According to Keller, the city is needs as many as 13,000 to 30,000 new housing units.

To add the 5,000 new housing units across the city by 2025, Keller  is proposing that the City of Albuquerque fund and be involved with the construction of new low income housing to deal with the homeless or near homeless.    The strategy includes “motel conversions” and a zoning code “rebalance” to enhance density.  It includes allowing “casitas” which under the zoning code are formally known as “accessory dwelling” units.

Keller wants to allow “different forms of multi-unit housing types” on residential properties.   63% of the city’s housing is single-family detached homes.

According to Keller, the city will also be pushing to convert commercial office space into to residential use. The Keller administration is proposing $5 million to offset developer costs with the aim of transitioning 10 properties and creating 1,000 new housing units.  The new plan also includes “motel conversations” which is the city purchasing and turning old and existing motels into housing.

Keller argues in part that his “Housing Forward ABQ”  plan will bolster the construction workforce and  address current renter concerns.  According to a news release, the Keller Administration intends to seek to change the law to protect tenants from “predatory practices such as excessive application fees, clarifying that deposits must be refundable and capping other fees, especially in complexes that accept vouchers.”

During a news conference announcing his “Housing Forward ABQ” Keller emphasized the importance of amending the city’s Integrated Development Ordinance (IDO).  Keller had this to say:

“Right now our zoning code will never allow us to meet the housing demand in the city … If you want a place to advocate, if you want a place to change policy, if you want a place to argue, it’s all about the IDO.”

City Council President Isaac Benton has long advocated for ways to increase the housing stock, previously pushing to legalize casitas.  In 2016, the city council rejected his changed to the zoning code amid  neighborhood association opposition. Benton had  this to say:

“We’ve had these arguments over the years with some of my most progressive neighborhoods that don’t even want to have a secondary dwelling unit be allowed in their backyard or back on the alley. … You know, we’ve got to change that discussion. We have to open up for our neighbors, of all walks of life, to be able to live and work here.”

https://www.abqjournal.com/2541186/mayor-sets-goal-of-5k-housing-units-by-2025.html

KELLER’S PROPOSED “TRANSFORMATIVE” CHANGES TO THE INTEGRATED DEVLOPMENT ORDINCANCE

On November 10, the  Keller Administration released what Mayor Keller called “transformative” updates to Albuquerque’s Integrated Development Ordinance (IDO)  to carry out Keller’s “Housing Forward ABQ” plan to add 5,000 housing units to the existing housing  supply by 2025.  At Mayor Keller’s request, the legislation is being sponsored by Democrat Isaac Benton, a retired architect, and Republican Trudy Jones, a retired realtor.

The proposed changes to the IDO if enacted would be as fallow:

1. Allow duplexes and casitas on nearly all single-family-home lots thereby increasing density in single-family home neighborhoods.
2. Relax the rules on apartment construction.
3. Eliminate height limits on apartment buildings in certain zones, and
4. Loosen kitchen requirements when turning commercial buildings into housing.
5. Reduces parking requirements for some multi-family development.

DEVIL IN THE DETAILS

The bill states the main goal is to lower the cost of construction, thus increasing the supply of multi-family dwellings. Major highlights of the legislation are as follows:

DENSITY INCEASE

The proposed  legislation will  dramatically increase options in  “R-1” residential zones.  “R-1”zoning  is  single family home lot zoning.   A whopping 68%  of all residential property zoned in the city is zoned R-1 encompassing  23% of the city’s total geographic area. The proposed legislation will allow detached casitas up to 750 feet and duplexes on lots in the zone.

According to Planning Department official Mikaela Renz-Whitmore, the new amendments to the IDO will not override existing special “casita” rules and zoning regulations already in place in areas such as Barelas, High Desert and South Broadway.

Development anywhere in the R-1 zone remains subject to rules about yard size and setbacks.  According to the legislation, it could potentially triple density on the lots and address the zone’s inherent “exclusionary effects.”

EASING RESTRICTIONS ON CONVERSIONS

Developers converting non-residential buildings to multi-family housing would not have to meet the existing kitchen standard of having a cooking stove, range or oven in each unit. They would only have to provide a microwave, hotplate or warming device.

ELIMINATING HEIGHT RESTRICTIONS

The bill eliminates height limits for mixed-use development and for multi-family housing in the highest-density residential zone. Currently, height limits in those areas vary. In the high-density residential zone today, caps range from 48 to 65 feet, though certain types of projects earn bonuses that raise the limit to 77 feet. In mixed-use zones, present limits range from 30 to 75 feet, though they could reach 111 feet with structured parking and other project bonuses.

CHANGING PARKING REQUIREMENTS

The bill will change parking requirements. It will exempt projects where at least 20% of the residential units will be affordable housing from providing off-street parking and reduces current requirements for other multi-family and mixed-use developments by 75%.  Under existing zoning requirements, a multi-family development needs 1-1.8 off-street parking spaces per dwelling unit generally based on the number of bedrooms per apartment.

“MOTEL CONVERSIONS”

Mayor Keller’s “Housing Forward ABQ” places great emphasis on “motel conversions”.

“Motel conversions” includes affordable housing where the City’s Family & Community Services Department would acquire and renovate motels to develop low-income affordable housing options. The existing layout of the motels makes it cost-prohibitive to renovate them into living units with full sized kitchens. An Integrated Development Ordinance amendment will provide an exemption for affordable housing projects funded by the city, allowing kitchens to be small, without full-sized ovens and refrigerators. It will require city social services to regularly assist residents.  The homeless or the near homeless would be offered the housing.

One area of the city that has been targeted in particular by the Keller Administration for motel conversions is “Hotel Circle” in the North East Heights. Located in the area are a number of motels in the largest shopping area in SE and NE Albuquerque near I-40. The businesses in the area include Target, Office Depot, Best Buy, Home Store, PetCo and the Mattress Store  and restaurants such as  Sadies, the Owl Café, and Applebee’s and other businesses. The city is already seeking to buy Sure Stay Hotel on Hotel Circle SE and has its eye on purchasing the abandoned and boarded up Ramada Inn for a motel conversion.

CONVERTING COMMERCAL OFFICE SPACE  INTO RESIDENTIAL DWELLINGS

Mayor Keller advocating the transformation of Commercial Office buildings into residential housing is not a new idea and has yet to really catch on.

The top floor of the  5 story commercial office building located at 2424 Louisiana North East has already been converted to upwards of 12 two bedroom, two bath, 1,240 square foot luxury apartments with monthly rental costs of $4,000 a month. The building was built in 1980, and is 77,647 square feet total with the typical floor size being 15,000 square feet.

SAFE OUTDOOR SPACES

Mayor Keller has advocated and in full support of the amendment to the IDO that allows for the land use known as “Safe Outdoor Spaces” to deal with the homeless crisis. “Safe Outdoor Spaces” are city sanctioned homeless encampments located in open space areas that will allow upwards of 50 homeless people to camp, require hand washing stations, toilets and showers, require a management plan, 6-foot fencing and provide for social services.

Under an adopted amendment to the IDO, Safe Outdoor Spaces are allowed in some non-residential and mixed-use zones and must be at least 330 feet from zones with low-density residential development. The restrictions do not apply to campsites operated by religious institutions. Under the IDO amendments, Safe Outdoor Spaces are allowed for up to two years with a possible two-year extension.

On September 15, the Environmental Planning Commission (EPC) voted to repeal “Safe Outdoor Spaces” from the Integrated Development Ordinance (IDO) by deleting  all references of “Safe Outdoor Spaces” effectively outlawing the conditional land use anywhere in the city. The repeal of Safe Outdoor Spaces in the IDO is still pending before city council.

EDITORIAL COMMENTARY: Safe Outdoor Spaces encampments violates the city’s “housing first” policy by not providing a form of permanent housing and with reliance on temporary housing.   Safe Outdoor Spaces are not the answer to the homeless crisis. “Safe Outdoor Spaces” will be a disaster for the city as a whole. They will destroy neighborhoods, make the city a magnet for the homeless and destroy the city’s efforts to manage the homeless through housing.  Safe Outdoor Spaces represent a very temporary place to pitch a tent, relieve oneself, bathe and sleep at night with rules that will not likely be followed. The answer is to provide the support services, including food and permanent lodging, and mental health care needed to allow the homeless to turn their lives around, become productive self-sufficient citizens and no longer dependent on relatives or others

MAYOR KELLER AND SPONSORING CITY COUNCILLORS OUTLINE POSITIONS

In requesting the sponsorship of the legislation, Keller wrote in an October  28 memo to City Council President Isaac  Benton:

“The proposed changes are intended to be transformative, which is fitting for the crisis facing our local government, thousands of families in our community, and our housing partners.”

Democrat City Councilor Isaac Benton said the proposed changes, especially the residential zone changes, will result in public outcry and objections.  Notwithstanding the public’s anticipated objections, Benton said the housing shortages the city is experiencing demands the changes be made and the public will have ample opportunity to comment. Benton said this:

“These are things that have been discussed over the years with regard to housing affordability, so it’s not new. … A lot of cities are doing this — just really taking a look at their low-density zoning and seeing if there are any opportunities there for more density.”

Republican City Councilor Trudy Jones, a cosponsor of the changes to the IDO, said she fully expects the proposals to generate backlash. Notwithstanding, Jones said the city needs to set the stage for more housing development and density in certain places or risk losing new workers and younger generations. Jones said density will promote housing affordability and the city may not want “sprawl” but it should welcome growth and she said this:

“Some of us want to keep our families here, want to keep our children and grandchildren here. … We can’t stay the little town that we were forever.”

The link to quoted news sources is here

https://www.abqjournal.com/2548502/keller-seeks-transformative-changes-to-zoning-code.html

ALBUQUERQUE NEW APARTMENT CONSTRUCTION BOOMING

In the Albuquerque metro area, new permits for apartment building construction have spiked dramatically. Building permits for a total of 4,021 new housing units were issued in the metro area in 2021, 35.1% of which are for units in buildings with five units or more.  In Albuquerque, about 2,000 units across 12 properties are  already under construction, with an additional 2,485 units planned across 16 properties and 5,143 prospective units. Five years ago only 20.3% of all permits for new housing units were for buildings with at least five units. The 14.8% point change for new apartment construction from 2016 to 2021 ranks as the 10th largest increase among all U.S. metro areas.

Alan LeSeck, Apartment Association of New Mexico executive director, told the Albuquerque Journal the current market is “very hot,” due partially to the lack of apartment development dating back to before the pandemic.  Since 2013, and prior to 2020, LaSeck said Albuquerque was averaging about 500 new units a year, below what the city needed to accommodate new residents.  LaSeck said that, for every 10,000 new residents, there needs to be about 3,400 apartments since about 34% of people typically rent.  According to RentCafe, in Albuquerque, the average apartment is rented for $1,170 per month.

According to the February Greater Albuquerque Association of Realtors report, home prices in Albuquerque continue to reach record highs, with the current median home value sitting at $315,000, up by 18.9% compared to a year prior. This has resulted in prospective homeowners being pushed out of the housing market, resulting in a demand for more rental and apartment unit construction. The increase in home prices has meant that some purchasers are simply  priced out of the market.  There are those who have sold their homes only to be unable to purchase another home due to increasing costs or a lack of availability. These former and would-be home-owners are then pushed into the rental market, increasing the occupancy rate and affecting rents.

https://www.abqjournal.com/2466109/report-abq-home-prices-jump-more-than-17-in-2021.html

Titan Development is among the leaders of multi-family development. Titan is currently working on 3 multi-family developments totaling more than 500 units. It is also working on the largest multi-family development in construction with the 281-unit Allaso High Desert apartments at San Antonio and Tennyson Street. Some of Titan’s new developments, such as the Allaso Vineyards at Holly and Ventura, target an aging demographic that may be looking for a new place to live with less maintenance than a single family home.

Among the larger developments is Overture Andalucia, a new multi-family complex on Albuquerque’s West Side aimed at adults 55 and older. The 171-unit complex, owned by the property investment, development and management company Greystar,  was  set to have units ready by  fall.

Uptown has become one of the economic and entertainment centers of the city. It has grown from 2 modest malls of Coronado and Windrock shopping centers  into a financial district  with the highest concentration of retail establishments in the state. An abundance of shopping and dining venues characterize the area as  nucleus of commerce. In response to  people looking for an urban experience without transportation headaches, two major apartment projects are fully underway in the uptown area.

Goodman Realty is  moving forward with construction on multi-family housing  for the first time since the ’80s.  Goodman Realty is planning to build Lofts at Winrock in Albuquerque’s Uptown area. Although referred to as the “Lofts” project, renderings show developers are  planning to call the apartment development “The Pine Needle.” Three buildings comprise the entire development, one of which will be used for townhomes. Plans show the apartment complex will have four floors of upscale apartments. At least one of the buildings will have a large courtyard.

https://www.krqe.com/news/albuquerque-metro/winrock-finalizing-plans-for-200-unit-high-end-apartment-complex/

The increased demand for apartments has led Goodman Realty  to look at other areas to pursue multi-family development, such as near the Journal Center. Scott Goodman said multi-family housing could be particularly attractive to developers since it is seen as a less risky investment and it is also easier to finance. More development, he said, could also lead to lower rental costs and help with the affordability problem. Goodman put it this way:

“We’re looking at doing more apartments.  … Apartment rents have really skyrocketed, apartment construction costs have really skyrocketed, and I think that the supply of apartments is really going down, and that’s part of the reason you’re seeing what we’re seeing … and the city needs more apartments. … The more apartments we have, the more supply we have, the more affordable it should be.”

The 243 unit, six story Markana apartment complex is now under construction and is  scheduled to be completed in  2023. It is located at 6500 Americas Pky, NE, South of Coronado shopping center, West of the Marriott and immediately North of the Hilton Garden Inn and West of the  Bucca De Beppo restaurant. It will have studio apartments and 1, 2 and 3 bedroom apartments ranging from 589 square feet to 1,226 square feet.

https://www.apartments.com/markana-uptown-albuquerque-nm/8n8z552/

Construction of the Element by Weston in the uptown area  merits mentioning.  It is a 120-room, 86,335-square-foot hotel  that is currently under construction located at 2430 Louisiana Blvd. NE, directly East of Coronado Shopping Center.

The links to quoted news sources are here:

https://www.thecentersquare.com/new_mexico/new-apartment-construction-is-booming-in-albuquerque-nm/article_4598bdff-d904-5125-b1c6-0d798a2f476f.html

https://www.abqjournal.com/2485325/builders-prep-for-apartment-building-boom-ex-realty-company-notes.html

REVISTING THE INTEGRATED DEVELOPMENT ORDINANCE

It was in 2015 that former Mayor Richard Berry during his second term started the rewrite process of the city’s comprehensive zoning code and comprehensive plan to rewrite the city’s entire zoning code. It was initially referred to as the  ABC-Z comprehensive plan and later renamed the Integrated Development Ordinance (ID0) once it was passed.  In 2015, there were sixty (60) sector development plans which governed new development in specific neighborhoods. Forty (40) of the development plans had their own “distinct zoning guidelines” that were designed to protect many historical areas of the city.

Former Mayor Richard Berry said the adoption of comprehensive plan was a much-needed rewrite of a patchwork of decades-old development guidelines that held the city back from development and improvement.  The enactment of the comprehensive plan was a major priority of Berry before he left office on December 1, 2017. The Greater Albuquerque Chamber of Commerce and the construction and development community, including the National Association of Industrial and Office Parks (NAIOP), pulled all stops to get the plan adopted before the October 3, 2017 municipal election.  IDO was enacted with the support of Democrats and Republicans on the City Council despite opposition from the neighborhood interests and associations.

The stated mission of the re write of the comprehensive plan was to bring “clarity and predictability” to the development regulations and to attract more “private sector investment”. The city’s web site on the plan rewrite claimed the key goals include “improve protection for the city’s established neighborhoods and respond to longstanding water and traffic challenges by promoting more sustainable development”. Economic development and job creation was argued as a benefit to rewriting the Comprehensive Plan.

Under the enacted Integrated Development Ordinance (IDO) the number of zones went from 250 to fewer than 20, which by any measure was dramatic. Using the words “promoting more sustainable development” means developers want to get their hands-on older neighborhoods and develop them as they see fit with little or no regulation at the lowest  possible cost to make a profit. The IDO also granted wide range authority to the Planning Department to review and unilaterally approve development applications without public input.

https://publicpolicy.wharton.upenn.edu/live/news/1581-impacts-of-gentrification-a-policy-primer/for-students/blog/news.php

PUBLIC CUT OUT OF THE PROCESS

The enacted Integrated Development Ordinance has provisions to allow the City Council to adopt major amendments  and make major changes to it. The IDO blatantly removes the public from the development review process, and it was the Planning Department’s clear intent to do so when it drafted the IDO.

COMMENTARY AND ANALYSIS

Albuquerque’s rental occupancy rate is at about 95.8%,  just above the recommended healthy occupancy rate of 95%.  Notwithstanding, apartment construction in Albuquerque is undergoing a major boom with  2021 and 2022  turning out to be record-breaking years for apartment construction.

Mayor Tim Keller and Democrat City Councilor Isaac Benton and Republican Trudy Jones ignore that new apartment construction is booming in Albuquerque and declare a housing crisis.  The reason for that is all 3 want the city to invest millions in low-income housing rather than letting the market and private sector deal with the problem. All 3 want to allow “casitas”  to be built on existing, built out residential  areas of the city, including historical areas.  All 3 want to allow 18  tent encampments known as  Safe Out Door Spaces in the city for the homeless. All 3 want motel conversions to the extent that the city will purchase existing motels and convert them into permanent low income housing essentially going into the motel business to address the homeless crisis.

KELLER’S BIPARTISAN WATER CARRIERS     

It should come as absolutely no surprise to anyone, especially established neighborhood associations for historic areas of the city like Barelas and the South Broadway and Martineztown area, that Democrat Isaac Benton and Republican Trudy Jones are carrying the water for Keller and are the sponsors of Keller’s Housing Forward ABQ plan legislation amending the IDO.  Both city councilors had a distain for the  previous comprehensive zoning code that was replaced by the IDO.   Both voted for the enactment of the IDO in 2017.  Both Benton and Jones have voted for and are in support of “motel conversions” and “Safe Outdoor Spaces”.

Democrat Benton is a retired architect and  Republican Jones is a retired real estate agent and both have contempt  for many of the sector development plans that placed limitations on developers, especially  in historical areas of the city.

Benton for years has advocated for major changes to ease up on restrictions on secondary dwelling unit in backyards over the objections of his own progressive constituents and the historical areas of the city he represents.  Benton admitted it when he said this:

“We’ve had these arguments over the years with some of my most progressive neighborhoods that don’t even want to have a secondary dwelling unit be allowed in their backyard or back on the alley. … You know, we’ve got to change that discussion. We have to open up for our neighbors, of all walks of life, to be able to live and work here.”

Republican Jones throughout her 16 years on the city council has always been considered in the pockets of the real estate and the development communities over the interests of property owners and neighborhoods. Over the years, she has received literally thousands of dollars in contributions from both the real estate industry and the development industry each time she has run for city council.  She has never gone the “public finance” route and has always privately financed her city council campaigns.  She was also the sponsor of the amendment to the IDO that removed the mandatory requirement for public input for special uses giving more authority to the planning department.

KELLER THE REAL ESTATE DEVELOPER

The IDO was enacted a mere few weeks before Tim Keller was  elected Mayor the first time. When then New Mexico Auditor Tim Keller was running for Mayor he had nothing to say publicly about the IDO and gave no position on it.  He did proclaim he was the most uniquely qualified to be Mayor despite lacking any experience in municipal affairs and city zoning.   The likely reason for not taking a position on the IDO was his sure ignorance of municipal land use planning and zoning matters, something he was never exposed to in his career as a State Senator and State Auditor.

Five years later, Keller as if he has had an some sort of  epiphany and education, proclaims the IDO is outdated. It’s very difficult, if not outright laughable, to take Mayor Tim Keller serious when he proclaimed the city’s Integrated Development Ordinance (IDO), which lays out highly complicated zoning and subdivision regulations, as being outdated given that it was enacted in 2017 by the city council on an 8-1 vote.

What is really happening with Mayor Tim Keller’s  “transformative changes” to  the Integrated Development Ordinance and his  “Housing Forward Abq” plan is that Keller is catering to the development community as he  pretends  to be an expert in the field of housing development and zoning matters.  Keller is relying on the city’s housing crisis and homeless crisis to seek further changes to the city’s zoning code to help the development community and using city funding to do it.

IDO IS AN ABOMINATION THAT SHOULD BE REPEALED

Simply put, the IDO is and has always been an abomination that favors developers and the city’s construction industry. The 2017 rewrite was a rush job.  It took a mere 2 years to rewrite the entire zoning code  and it emerged as the Integrated Development Ordinance (IDO).  It was in late 2017, just a few weeks before the municipal election and the election of Mayor Tim Keller, that  the City Council  rushed to vote for the final adoption of the IDO comprehensive plan on an 8-1 vote.  Outgoing City Councilor Republican Dan Lewis who lost the race for Mayor Tim Keller voted on the IDO refusing to allow the new council take up the IDO.

Critics of the Integrated Development Ordinance said it lacked public discussion and representation from a number of minority voices and minority communities.  They argued that the IDO should be adopted after the 2017 municipal election, but they were ignored by the City Council.

There is no doubt that IDO is now having a long-term impact on the cities older neighborhoods and favors developers. The intent from day one of the Integrated Development Ordinance was the “gutting” of long-standing sector development plans by the development community to repeal those sector development plans designed to protect neighborhoods and their character. The critics of the IDO argued that it made “gentrification” city policy giving developers free reign to do what they wanted and to do it without sufficient oversight.

The City’s development community got all it wanted when the IDO  was first enacted which was to gut as many sector development plans as possible and remove zoning restrictions that protected neighborhoods. The enacted Integrated Development Ordinance has provisions to allow the City Council to adopt major amendments  and make major changes to it. The IDO blatantly removes the public from the development review process, and it was the Planning Department’s clear intent to do so when it drafted the IDO.

Since  the enactment of the Integrated Development Ordinance, at least 250 amendments have been past by the City Council.  Now that the development community has gotten what it wants, we have a Mayor and at least 2  city councilors who think they can salvage the unworkable Integrated Development Ordinance by amending it repeatedly when repeal is likely in  order.

CONCLUSION

Once Keller’s “Housing Forward Abq” plan  is introduced, it must go through the mandated process and accompany the city’s annual Integrated Development Ordinance updates. The process will take months and includes public meetings with the Environmental Planning Commission (EPC), the city council’s Land Use Planning & Zoning committee and then a vote by the full city council. Neighborhood Associations and historical areas of the city need to voice their concerns loud and clear to both the Mayor and the City Council, but its not at all likely they will listen and they will  do whatever they damn well feel like doing over voter objections.

On   Federal Court Appointed Independent Monitor James Ginger filed his 16th Report on the Compliance Levels of the Albuquerque Police Department (APD) and the City of Albuquerque with Requirements of the Court-Approved Settlement Agreement. The 15th Federal Monitors report is a 332 page report that covers the 6 month time frame of August, 2021 to January, 2022. The link to review the entire 16th Federal Monitors report is here:

https://www.cabq.gov/police/documents/959-221109-imr-16.pdf

This blog article reports on the findings and is a summary of the 16th Federal Monitors Report. The article is not to be considered exhaustive but is an outline of  the major accomplishments of APD over the reporting period.

COMPLIANCE LEVELS

On November 14, 2014, the City of Albuquerque, the Albuquerque Police Department and the United State Department of Justice (DOJ) entered into a stipulated Court Approved Settlement Agreement (CASA). The Court Approved Settlement Agreement mandates 271 police reforms, the appointment of a Federal Monitor and the filing of Independent Monitor’s reports (IMRs). There are 276 paragraphs in 10 sections within the CASA with measurable requirements that the monitor reports on.

The link to the 118-page CASA is here:

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

Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Originally, APD was to have come into compliance within 4 years and the case was to be dismissed in 2020.

The 3 compliance levels can be explained as follows:

PRIMARY COMPLIANCE

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

SECONDARY COMPLIANCE

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

OPERATIONAL COMPLIANCE

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

16^th  FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The Federal Monitor reported that as of the end of the IMR-16 reporting period, APD’s compliance levels are as follows:

Primary Compliance: 100% (No change)
Secondary Compliance: 99% (No change)
Operational Compliance: 80%. (10% increase from 70%)

 15^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

 On May 11, 2022, Federal Court Appointed Independent Monitor filed his 15th Report on the Compliance Levels.  The 15th Federal Monitors report covers the 6 month time frame of August, 2021 to January, 2022. The link to review the entire report is here:

https://www.cabq.gov/police/documents/910-220511-imr-15.pdf

APD’s compliance levels in  the IMR-15 Federal Monitor’s report were as follows:

Primary Compliance: 100%
Secondary Compliance: 99%
Operational Compliance: 70%.

The 15th Federal Monitors report was  a dramatic reversal from the past 3 monitor reports that were highly critical of the Keller Administration and the Albuquerque Police Department.

14^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

On November 12, 2021, the Federal Monitor reported in the Federal Monitors IMR-14 report filed  the 3 compliance levels  as follows:

Primary Compliance: 100 %; (No change from before)
Secondary Compliance: 82 %; (No change from before)
Operational Compliance: 62 % (An increase 3% points from before)

FEDERAL MONITORS IMR-16 REPORT EXECUTIVE SUMMARY

During the IMR-16 reporting period, APD has held steady in its overall compliance ratings, with Primary compliance at 100% and Secondary compliance levels at 99%. This means that APD’s policy development and dissemination processes were found to be CASA-congruent, and that training development and execution were found to be CASA-congruent in almost all cases reviewed by the monitoring team.

… [T] he monitoring team … found it … not necessary to comment extensively on policy drafts submitted by APD for review during IMR-16. Policies submitted for review were generally well written, CASA-compliant, and industry-standard in terms of the actions required by APD personnel in the field.

…

Training processes continue to be a bright spot at APD. The new cadre of external hires continues to develop training plans, documentation, and delivery systems that comply with industry standards. Communications between Academy leadership and the monitoring team continues to be issue-oriented and focused on modalities to improve training product and achieve compliance with training-related paragraphs.

 During the 16th reporting period, it was  noted that APD’s recruiting unit and the Behavioral Science Section continued the high-quality work the monitor has noted in past monitor’s reports.

 The primary Force Review Board (FRB) reviewed 43% more cases during the IMR-16 reporting period than in the previous period. APD also implemented a secondary FRB during this period.  These changes bode well for APD’s efforts to hear all use of force cases in a timely manner.

 IAPS investigators thoroughly investigated and documented and reached appropriate findings in all cases this reporting period. The mentoring, coaching, and oversight provided to APD by External Force Investigation Team  continue to reflect industry-standard practices and produce industry-standard results in numerous APD force investigations and assessments.

 Our reviews of fourteen IAFD cases this reporting period show that these investigations were highly congruent with industry standards. Timeliness of internal investigations was also significantly improved during the 16th reporting period. This reflects improved oversight by IAFD command.

 The use of force cases assessed by the monitoring team this reporting period (all of which benefited from on-scene coaching and oversight by EFIT) continue to show improvement. Further, operational compliance—the degree to which operations in the field comply with the requirements of the CASA—is now at 80%  compliance. This is a 10%  point increase in operational compliance during the IMR-16 reporting period, the highest level of operational compliance yet achieved by APD.

 This progress is significant, but we remind APD that the compliance requirement is 95 percent or higher. The efforts we have noted during this reporting period need to be exhibited consistently if APD is to meet the 95%  compliance levels needed for full compliance with the requirements of the CASA.

 Further, we note that the work completed by IAFD and EFIT during this reporting period shows that it is possible to meet and exceed the 95%  compliance level for use of force investigations at APD. Doing so requires fully focused processes at the supervisory, command, review, documentation, and adjudication levels at APD.

 It was noted  that eventually EFIT will transfer oversight of force responsibilities to APD. This transfer will test APD’s ability to sustain the obvious progress that is being made with day-to-day external oversight.

The following [three] areas will need careful attention as APD works toward long-term sustainability of the CASA reforms achieved:

 1.Ensuring that quality investigations are not features that exist only while EFIT is present.

 2. Staffing IAFD and sustaining the core competencies of investigators will be a challenge for APD. Growing detective and investigator competencies requires the support of commanders and time to acclimate personnel experiences dealing with officers and the complexity some cases bring. Stabilizing turnover in IAFD’s supervisory ranks and investigative staff in the long term will be a key factor for success.

 3.  APD should consider utilizing the process narrative, which was put into place to establish standards and a system by which all use of force investigations will be assessed for quality, in the future. APD significantly reduced failure rates among investigations submitted through the chain of command during this monitoring period.

 4. Since failure rates are directly related to the quality of supervision in IAFD, they can be reasonably viewed as a predictor of IAFD’s ability (or inability) to achieve CASA compliance after EFIT is no longer internally monitoring IAFD’s quality of work. The assignment of a new commander at IAFD during this monitoring period had a significant positive impact on failure rates.

 FEDERAL MONITORS IMR-16 REPORT OF SUMMARY OF SUCCESSES AND ACCOMPLISHMENTS

“Successes for IMR-16 reporting period are both substantial and consequential.”

SUCCESSES REPORTED

During the reporting period, [the following successes were found]:

 1. APD implemented policy, training, and practice changes that resulted in a 10% point increase in operational compliance, from 70% in IMR 15 to 80% in IMR 16.

 2. Recruiting and BSS continued their positive arc of change, and solidified new policy and practice that has aided compliance efforts;

 3.  IAPS has continued to improve the quality and scope of its investigations;

 4.  APD has increased substantially the number of ECIT certified officers responding to mental health-related calls for police service;

 5. SOD and SID continue to perform their day-to-day tasks in a manner that is highly congruent with the requirements of the CASA;

 6. Albuquerque’s Citizen Policing Councils have matured to the point that they are among the best in the nation; and

 7. Community outreach efforts at APD have taken on a new level of engagement. The monitoring team is acutely aware of the effort APD undertook to generate these positive findings.

 We also detect a substantial shift in mind-set and vision at the executive and command levels at APD related to the oversight of use of force and infield delivery of policing services.

 APD remained consistent with its [Primary Complianc at 100% and Secondary Compliance 99%.] respectively.

 During this reporting period, APD’s Operational compliance increased by 9%.

REMAINING CHALLENGES

APD’s Operational compliance is now at 80%. Current Challenges  remain to be addressed if APD is to reach full compliance with the requirements of the CASA. These [challenges]  include:

 1. Transitioning EFIT oversight responsibilities regarding use of force investigations back to APD, which will test APD’s ability to sustain the obvious progress that is being made with the day-to-day external oversight provided by EFIT;

2. Ensuring investigative quality are not features that exist only while EFIT is present;

 3. Expanding IAFD detectives’ and investigators’ competencies requires the support of commanders and allowing time to accumulate personal experiences dealing with officers and the complexity some cases bring. Stabilizing turnover in IAFD’s supervisory ranks and investigative staff in the long term will be a key factor for success;

 4. The process narrative was put into place to establish standards and a system by which all use of force investigations will be assessed for adequacy. During this monitoring period, APD significantly reduced failure rates among investigations that were submitted through the chain of command.

 Since reductions in failure rates are attributable to the quality of training and supervision in IAFD, they can be reasonably viewed as a predictor of IAFD’s ability (or inability) to maintain CASA compliance after EFIT is no longer monitoring IAFD’s quality of work. The assignment of a new commander at IAFD during this monitoring period had a significant positive impact of reducing failure rates. Still, APD must ensure that the improvements are not dependent on the ability of a single commander and are instead a culturally ingrained standard of excellence;

 5. Adequately staffing IAFD and sustaining the core competencies of investigators will be a challenge for APD. Growing detective and investigator competencies require the support of informed commanders and supervisors, as well as accumulating personal experiences dealing with officers and the complexity of some IAFD cases;

 6. Stabilizing turnover in IAFD’s supervisory ranks and investigative staff in the long term will be a key factor for continued success.

 7. Building “bridging” systems to ensure that lessons learned during EFIT processes are internalized, monitored, and protected from deterioration is critical to overall success.

8. Carefully monitoring and assessing IAFD staffing viz a viz workload and timeline requirements will be critical as APD begins to assume responsibilities currently being met by EFIT, to provide careful, consistent, and persistent assessment of uses of force by the monitoring team;

 9. Developing processes to monitor timeliness and thoroughness of investigations will be critical as IAFD steps into the monitor’s role of independently assessing compliance with the requirements of the CASA and the current expected standards of nationally accepted processes for force investigations.

 10. Improving detective and investigator competencies requires the support of commanders and time to accumulate personal experiences dealing with officers and the complexity that some cases bring. Stabilizing turnover in IAFD’s supervisory ranks and investigative staff in the long term will be a key factor for success.

11. It is critical that APD establish the ability to assess and adapt EFIT’s Process Narrative, which was put into place to establish standards and a system by which all use of force investigations are assessed. During this monitoring period, APD significantly reduced failure rates among investigations that were submitted through the chain of command.

 Since the drop of those failure rates are directly attributable to the quality of supervision in IAFD, they can be reasonably viewed as a predictor of IAFD’s ability (or inability) to achieve CASA compliance after EFIT is no longer internally monitoring IAFD’s quality of work.

 The assignment of a new commander within IAFD during this monitoring period had a significant positive impact on reduced failure rates. Nonetheless, APD must ensure that the improvements are not dependent on the ability of a single commander and are instead a culturally ingrained standard of excellence, supported by good policy, well-trained personnel, and strong supervisory and management oversight.

 12 .  Establishing an internal assessment and problem-solving practice to identify, assess, and remediate systems issues leading to failures to comply with the process narrative for internal investigations should be a high-priority goal of APD leadership.

 13. Revising APD’s annual use of force reporting processes should be implemented to reflect correct information once EFIT-2 has completed the investigation of APD’s backlogged use of force cases. IAPS should more closely train and supervise area command investigations to ensure completeness and accuracy.

 14. IAPS should more closely train and supervise area command investigations to ensure completeness and accuracy.

 15.  Assessing critical “practice points” that involve CPOA’s contribution to compliance practices and building reliable bridges to interlink CPOA findings into APD policy, training, supervision, command oversight, and leadership processes will be critical moving forward. The careful reader will note that most of the challenges outlined above fall under the rubric of practice-based leadership.

 While “technicians” at APD may be partially responsible for the successes noted above, it will be incumbent on leadership to conceptualize and foster the vision and will to modify, plan, and operationalize responses to the remaining challenges noted above.

 Further, for processes that are deemed effective, APD should ensure their long-term use in the department’s pursuit of compliance with the CASA. APD’s “to do” list, at this point in time is substantial, but the monitoring team notes that the successes outlined above should facilitate understanding and experience that in turn should stimulate effective management of the remaining tasks to be completed.

…

In the final analysis it will be the role of APD senior executives to ensure that the progress achieved during the 16th reporting period is made part of the department’s continuing efforts.

 EFIT USE OF FORCE INVESTIGATIONS 

 On February 26, 2021, the  External Force Investigation Team (EFIT) was created by stipulated order. The EFIT commenced operations on July 16, 2021.   The EFIT was created when the Federal Monitor found that APD intentionally did not investigate 667 of use of force cases. The EFIT is an outside team of experts that investigates APD officer involved “Use of Force” cases and that is tasked with dealing with the backlog of 667 use of force cases.

EFIT is on call 24/7 and must respond to all call outs within one hour of notification. All Use of Force (“UOF”) investigations must be completed within 60 days with an additional 30-day supervisory review period for a total of 90 days from start to finish.  EFIT must conduct joint investigations with APD Internal Affairs Force Division (“IAFD”) of all Level 2 and Level 3 Use of Force incidents.   The joint investigations include all Tactical Deployments where Use of Force is utilized. EFIT must also assist APD with training concerning the use of force.

The Federal Monitor’s 16^th Independent Monitor’s report reported  on the work and progress made by the EFIT as follows:

 “CASA requirements stipulate that the use and investigation of force shall comply with applicable laws and comport to best practices. Central to these investigations shall be a determination of each involved officer’s conduct to determine if the conduct was legally justified and compliant with APD policy. Field supervisors make initial assessments and classifications to determine the appropriate type of response to instances where officers use force. Level 1 uses of force are handled by supervisors in the Field Services Bureau or other applicable units. The Internal Affairs Force Division (IAFD) responds for investigatory responsibilities associated with all Levels 2 and 3 uses of force.”

 RESULTS REPORTED

 “During IMR-16 [involving] data current through August 2022, APD recorded a combined 212 Level 2 and Level 3 use of force cases: the same number of cases as in IMR-15. This continues to reflect a significant reduction in the more serious levels of use of force observed in previous monitoring periods.

 During this monitoring period, APD and the External Force Investigation Team (EFIT) have maintained their reversal of the previous problematic long-term trend in completing Level 2 and 3 use of force cases. Internal Affairs Force Division (IAFD), working alongside EFIT, completed 151 Level 2 cases, with 148 of the cases being completed within 90 days of the use of force. The three cases not completed within 90 days were misclassified initially by Field Service Bureau personnel, which contributed to the cases not being completed within 90 days of the use of force.  …

 As noted later in this monitor’s report, evidence reveals that problematic productivity levels at the Internal Affairs Force Divisi ( IAFD) from earlier monitoring periods have reversed and are headed in the right direction.  …  [T]his reversal was achieved with external assistance provided by EFIT. Nonetheless, the progress made and initially reported during IMR-15 has been maintained during this monitoring period.

 We urge APD to consider this issue, to “think ahead” to the processes that need to be internalized, and to identify the training and oversight necessary to facilitate those processes in preparation for the day when the EFIT engagement is terminated, and the full burden of processing force investigation cases falls once again on APD. This is a critical issue for APD, requiring careful consideration, decision-making, and documentation, and more likely than not new policy guidance, training, supervision, and executive oversight.”

 2% OF 660 BACKLOG CASES CLOSED

 In the IMR-14 reporting period, the monitoring team noted the growth of backlogged Level 2 and Level 35 cases and the lack of progress in completing those cases. During this monitoring period, the Stipulated Order approved by the Court in 2021 was amended to authorize a secondary EFIT team (EFIT-2) to address these backlogged Level 2 and Level 3 cases6. At the close of the monitoring period, approximately 2%  of the backlogged cases had been closed. No new cases were added to the list of backlogged cases during the IMR16 reporting period.

 …  [As]  of the close of this reporting period, EFIT-2 had been operating for less than two months. Since APD changed how it records requests for misconduct investigations associated with use of force reviews and investigations, more details are available for internal analysis. … [S]ince potential policy violations observed during use of  force investigations are being reported to IAPS at a higher rate, this aggregate data provides a rich resource for APD to analyze in order to determine alleged misconduct trends.

  Any training conducted by the Academy or other entity within APD should, as contextually appropriate for the course being designed, examine these data as part of its needs assessment phase of curriculum development. Also, the early identification and reporting of misconduct during force investigations reduces the compounded administrative burden that can fall on APD as those cases move through the chain of command.

 [The] City [has]  made a significant investment in the EFIT. The result has demonstrated that the terms of the CASA can be achieved with investigative effort and close oversight by supervisors and commanders. The additional benefit is that the Force Review Board (FRB) has better confidence in cases it is reviewing, and the findings investigators make. Consequently, FRB members can move more quickly during their case reviews, and meetings are more streamlined.

 In this reporting period, evidence reveals that APD continued to struggle with completing supervisory force reviews within 72 hours. Additionally, APD supervisory and command personnel still struggle to complete their reviews of Level 1 use of force reviews within the allotted 30-day time period. However, APD had better success during this monitoring period.  

 In IMR-16, the amount of time it took APD to complete the 83 Level 1 use of force cases APD opened for supervisory review ranged between 13 and 87 days. Ten of the cases completed exceeded 30 days, with four of these cases exceeding 80 days. Seventy of the 83 cases were completed within 30 days, although four of these 70 cases were at the 30-day mark.

 The monitoring team conducted a review of Level 1 uses of force drawn from samples taken throughout the reporting period. We document our reviews of those cases and statistical findings regarding Level 1 uses of force in greater detail in Paragraphs 41-59.

 The monitoring team continues to provide extensive technical assistance and feedback to APD concerning the problems associated with their IA processes. This technical assistance, continuously provided since the onset of monitoring, increased in January 2020 and has continued throughout the writing of this report. This feedback provided by the monitoring team encompassed briefings on best practices in internal affairs operations. It provided recommendations for improving existing internal processes to improve the lack of timeliness of APD’s use of force investigations and to address the disparity in discipline that exists by deferring.

 Pages 7, 8, 9 of IMR-16

 COMMENTARY AND ANALYSIS

After 8 years of implementing the mandating DOJ reforms, and millions spent on training, APD appears to have finally turned the corner on implementing the 271 mandated reforms under the CASA. APD is commended for attaining a 100% Primary Compliance rate,  a 99% Secondary Compliance rate and increasing Operational Compliance to 80%, a 10% increase. Notwithstanding, APD is still struggling mightily with Operational Compliance.  Operational compliance is the single most important compliance level of all 3 and it is where the rubber hits the road with respect to the reforms.

Operational compliance is the hardest to attain. Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency. It is achieved when line personnel are routinely held accountable for compliance 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. Operational Compliance still has to be achieved at a 95% level, as do the other two, and sustained for 2 years before the case can be dismissed.

One of the biggest complaints of all DOJ cases in the country to deal with police misconduct excessive use of force cases is that they tend to go “on and on and on”  for years with no end on sight. When the CASA was first agreed to in 2014, it was agreed that all the reforms under the CASA would be fully implemented within 4 years. Simply put, the city is going on a full 8 years with millions spent. Once the city achieves the 95% compliance rate in all 3 categories, the city should move to negotiate the dismissal of  the case and argue that  the spirit and intent of the CASA has been achieved.