On November 12, 2014, the United States Department of Justice (DOJ) filed its action against the City of Albuquerque seeking to remedy a pattern or practice of excessive force and deadly force by the Albuquerque Police Department (APD).
In response to the litigation, the City and the DOJ agreed to a Court-Approved Settlement Agreement (CASA). The settlement requires the City to implement comprehensive reforms at APD. The reforms were negotiated to be fully implemented in 4 years and after 2 years of 95% compliance in 3 levels of compliance, the case was to be dismissed. It has now been over 6 years, 2 Mayors, 3 Chiefs, 3 United States Attorneys for New Mexico and APD still has failed to implement all the reforms.
The reforms are intended to address deficiencies in the areas of use of force, crisis intervention, deployment of specialized units, supervision, management, misconduct investigations, and data collection and analysis.
On February 4 and February 11, Channel 7 broadcast highly critical reports of the DOJ consent decree in its Target 7 reporting. Both reports singled out the Federal Monitor and the reform process under the Court Approved Settlement Agreement (CASA) as the reason for the city’s high crime rates.
Based on information from informed sources, Channel 7 reporters were contacted and asked by the APD Police Union or police union supporters to report what is happening in other cities with consent decrees asserting that the consent decrees are responsible for increases in crime in the cities and police officers cannot do their jobs.
FEBRUARY 4, 2021 TARGET 7 REPORT
On February 4, 2021 Channel 7 did its first Target 7 investigation report. The link to the entire Target 7 February 4 report is here:
https://www.koat.com/article/2021-starting-out-as-violent-year-in-abq/35356633
The February 4 Target 7 report boldly proclaims that it “wanted to know why APD wasn’t making progress” with all the reforms after “paying the Federal Monitor $7.5 Million and expending another $20 Million on the reforms” allocated to APD to implement the reforms for training, staffing and equipment over six years. The February 4, Target 7 report and the police union blame the DOJ reforms and the Federal Monitor for the 6- year delay in implementing the reforms mandated by the settlement.
A detailed analysis of the February 4, Target 7 report outlining misinformation in the report can be found here:
“Target 7 Searches For Scandal On Federal Court Monitor & Finds Nothing; Fails To Report APD Management And Police Union Reason For Costly Delay; “News You Can’t Trust”:
FEBRUARY 11, 2021 TARGET 7 INVESTIGATIVE REPORT
On February 11, 2021 Target 7 did a second report. The transcript of the entire report can be reviewed at the below link with the headline “Violent Crime has increased 53% since city signed DOJ settlement agreement”:
ANALYSIS OF TARGET 7 FEBRAURY 11 REPORT
The Target 7 February 11 report is riddled with misleading or false statements and failures to disclose relevant information. The February 11 report failed to identify that the APD Police Union has been and continues to be the biggest reason for the 6-year delay in implementing the reforms.
THE HEADLINE
The Headline “Violent Crime has increased 53% since city signed DOJ settlement agreement” is as misleading as it gets. The headline is true as to the crime rates but steps over the line of responsible journalism. It essentially says that the DOJ consent decree is the reason for the increase in violent crime which is false.
NATIONAL TREND IN VIOLENT CRIME
The February 11 Target 7 report states:
“For the past six years, a court-ordered agreement with the Department of Justice has forced the Albuquerque Police Department to make court-ordered changes to the way it does business.
The agreement has cost taxpayers $20 million to pay for training, equipment, staffing and a court-appointed monitor.
And violent crime, murders, rapes, robberies and aggravated assaults have increased 53 percent, according to the latest FBI crime statistics. …
“The city says that you can’t blame the increase in crime on the court-ordered changes. “There are a lot of factors behind that not the least of which is a severely understaffed department,” said City Attorney Steve Aguilar. “But, APD and this department have proven it can fight crime.” … “
The Target 7 report is accurate when it says “violent crime, murders, rapes, robberies and aggravated assaults have increased 53 percent, according to the latest FBI crime statistics.” However, the word “latest” is the operative word. What Target 7 left out is that it’s a national trend that violent crime has increased and the city’s increase in crime has nothing to do with the DOJ reforms.
On August 8, 2020 a syndicated news column reported:
” … Homicides and gun violence are on the rise. Murders have spiked in 36 of the 50 biggest American cities that were studied during a newly released Wall Street Journal analysis of crime stats. On average, the nation’s homicide rate is up 24% so far this year compared to the same period in 2019. But in certain cities the murder rate is much higher. In Chicago homicides are up 52%. In San Antonio it’s 34%. Phoenix has seen a 32% rise in murders, Philadelphia 31% and Houston 27%. Gang activity is most frequently blamed for the rise as gang members are also feeling the economic pinch of isolation and turf wars have ignited, playing out on near-empty street corners. This year’s recent huge jump in gun sales may have also played a part in the rising inner-city death toll.”
https://www.abqjournal.com/1484278/the-good-and-very-bad-of-pandemicera-crime-rates.html
In yet another column, FBI statistics reveal that Albuquerque has the dubious distinction of having a crime rate about 194% higher than the national average. The FBI has never reported that Albuquerque’s high crime rates are attributed to the CASA reforms nor that APD officers can not do their jobs of fighting crime because of the reforms.
https://www.abqjournal.com/1491404/state-city-leaders-play-politics-with-public-safety.html
THE DOJ INVESTIGATION
The Target 7 Report states:
“In 2014, the DOJ sued APD after 20 people were shot and killed by Albuquerque police officers in a span of four years.”
The cursory statement totally downplays, to the point of being misleading, the seriousness of what was found by the DOJ. For that reason, a short summary of what the DOJ investigation found is in order.
On April 10, 2014, the DOJ Civil Rights Division, released a scathing 46-page investigation report on an 18-month civil rights investigation of the Albuquerque Police Department (APD). The DOJ reviewed all fatal shootings by officers between 2009 and 2012 and found that officers were not justified in using deadly force in the majority of those incidents.
The link to the entire investigation report is here:
https://www.justice.gov/sites/default/files/crt/legacy/2014/04/10/apd_findings_4-10-14.pdf
According to a DOJ press release issued on April 10, 2014:
“The investigation examined whether APD engages in an unconstitutional pattern or practice of excessive force, including deadly force, as well as the cause of any pattern or practice of a violation of the law. The department found reasonable cause to believe that APD engages in a pattern or practice of excessive force in violation of the Fourth Amendment of the U.S. Constitution. The department specifically found three patterns of excessive force:
APD officers too frequently use deadly force against people who pose a minimal threat and in situations where the conduct of the officers heightens the danger and contributes to the need to use force;
APD officers use less lethal force, including electronic controlled weapons, on people who are passively resisting, non-threatening, observably unable to comply with orders or pose only a minimal threat to the officers; and
Encounters between APD officers and persons with mental illness and in crisis too frequently result in a use of force or a higher level of force than necessary.
The department also found systemic deficiencies of the APD which contribute to these three patterns, including: deficient policies, failed accountability systems, inadequate training, inadequate supervision, ineffective systems of investigation and adjudication, the absence of a culture of community policing and a lack of sufficient civilian oversight.”
THE DOJ REFORMS
The Target 7 report states:
“The city reached a settlement and agreed to make about 300 policy changes to the department.”
The CASA actually mandates 271 major reforms. A link to the CASA is here:
Among the 271 reforms agreed to by the City and APD are:
The city agreed to a complete re write of APD’s Use of Force and Deadly force Policies. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re writing and implement new use of force and deadly force policies are mandated. The CASA mandates the teaching of “constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with all and especially the mentally ill. Stricter training and restrictions on the use of nonlethal force is required under the CASA, and it requires more training and controls over the use of Tasers by officers along with quarterly audits of their use.
The agreement mandates that APD adopt a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented and outlining details how use of force cases would be investigated. It requires far more reporting by officers and field supervisors and also requires detailed reviews of those reports up the chain of command within the department. Sergeants and lieutenants are required to be much more involved in field supervision and review of use of force by officers.
The city agreed to the creation of a Police Oversight Board (POB) as a civilian review agency that independently reviews citizen complaints, serious uses of force and officer-involved shootings by APD. The civilian agency also monitors, reviews and make recommended changes to APD policy on use of force. The city agreed to the creation of Police Civilian Advisory Councils (CPCs), one in each of the 6 APD area commands, designed to increase community interaction. The City agreed to create a new “Use of Force Review Board” to oversee all internal affairs investigations of use of force and deadly force.
COMPARING APPLES TO ORANGES
The Target 7 report compares the increase in crime in Albuquerque to other cities with consent decrees:
“There could have been other factors for the increase. But police union leaders don’t think so.
…
The police union says that’s not the case and they suggest similar agreements are not working in other cities.
…
Target 7 pulled crime data from the FBI for seven other cities that have had similar agreements with the Department of Justice. When compared to the first three years before the agreement to the three years that followed, only two small cities — East Haven, Connecticut and Warren, Ohio had a decrease in violent crime. Both of those cities had a 17 percent reduction.
Larger cities saw at least a 10 percent increase in violent crime:
Seattle – 15%
New Orleans – 25%
Los Angles – 61%
Cleveland – 10%
Phoenix – 17%”
Target 7’s report is very misleading or false on 3 levels:
FIRST: The increases in violent crime in the 5 cities listed can be attributed to the national trend in violent crime that was previously discussed in this article. Target 7 and the police union make the assumption without any supporting and definitive data that the increases are because of consent decrees. FBI statistics reveal that Albuquerque has the dubious distinction of having a crime rate about 194% higher than the national average. The FBI has never made the link that the cities consent decree is the cause of the rise in crime or that the reforms are keeping police from doing their jobs.
(See above: NATIONAL TREND IN VIOLENT CRIME INCREASES).
SECOND: Most importantly, all consent decrees are each tailored to what happened with law enforcement in those cities. The consent decrees in the cities of Seattle, New Orleans, Los Angeles, Cleveland and Phoenix all dealt with racial profiling and to some extent “systemic racism” and the targeting of minorities and use of excessive force and deadly force on minority suspects. That is not what has happened in Albuquerque.
Albuquerque’s consent decree is totally and significantly different than the other consent decrees. In Albuquerque, APD’s use of force cases reviewed involved persons suffering from acute mental illness and who were in crisis. The DOJ investigation of APD did not deal with “racial profiling” nor systemic racism as it did in the 7 cities listed by Channel 7 in its report. The DOJ investigation found APD’s policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved.
THIRD: Pointing out that violent crime has increased in the cities that have consent decrees is nothing more than a red herring by the police union. It is a tried-and-true tactic used by police unions to interfere with the reform process of consent decrees. On June 6, 2020, the New York Times published a news article on line entitled “How Police Unions Became Such Powerful Opponents to Reform Efforts”. The New York Times article discusses that as demands for police reform have mounted across the country in the aftermath of police violence or shootings resulting in death, unions have emerged as significant roadblocks to police reforms and change. According to the NY Times article, the greater the political pressure for police reform, the more defiant police unions become in resisting police reforms. The unions are aggressively protecting the rights of members accused of misconduct. The article reports that unions can be so effective at defending their members that cops with a pattern of abuse can be left untouched, ostensibly undisciplined and they remain on the force. A link to a related Dinelli blog article is here:
“NY Times: “How Police Unions Became Such Powerful Opponents to Reform Efforts”; This Sounds WAAAY Too Familiar! Dismiss Police Union As Party To Federal Lawsuit”
TARGET 7 REPORT ON APD STAFFING LEVELS
The February 11, Target 7 Report states in part:
“Since the agreement started, the number of officers has grown from 903 to 962, according to FBI and city payroll records.”
The Target 7 report is seriously inaccurate as to APD’s past staffing levels and it is not up to date as far as APD’s current staffing levels.
In December of 2009, APD had 1,100 sworn police. At the time, APD was the best trained, best equipped, best funded and had the highest staffing levels in its history. Eight years later in December, 2017, a full 3 years after the agreement started, APD was funded for 1,000 sworn officers but it had only 853 sworn police officers, a total loss of 247 sworn police since 2009.
On August 1, 2019, the Albuquerque Police Department (APD) issued what it entitled “Staffing Snapshot” providing a report on the number of sworn police officers APD had at the time and where they have been assigned. According to the report, APD as of August 1, 2019 had a total of 972 sworn officers with 600 officers in the field patrolling 6 area commands and neighborhoods.
On January 9, 2021, APD payroll showed that APD staffing dropped from 972 sworn to 953 sworn officers with only 48 cadets in the academy. An APD spokesman said at the time there were 51 cadets that were expected to graduate in mid-March. The number of APD retirements will likely approach 30 to 40. APD will likely be short by at least 200 of the 1,200 promised by Mayor Tim Keller once retirements are factored in.
On Monday, February 8, 2021, during a meeting of the City Council’s Public Safety Committee, Interim Police Chief Harold Medina told the committee that APD has 957 officers, 20 less than it had it had two years ago. Medina further made the shocking disclosure that APD has only 371 police officers assigned to the field service bureau that respond to calls for service in the 6 area commands when in 2019 there were 600 sworn police officers responding to calls for service. Medina also told the city council committee that Field Services has 53 sergeants, 18 lieutenants, 6 area commanders, 21 bicycle officers and 32 crisis intervention officers, for a total of 511 officers. The problem is that the sergeants, the 6 area commanders, the bicycle officers and crisis intervention officers do not patrol the streets of Albuquerque taking calls for service.
https://www.abqreport.com/single-post/zero-growth-for-apd
THE PROMISED 1,200 SWORN POLICE
According to the Target 7 February 11 report:
“After completing a DOJ-mandated staffing study, the city has said it needs 1,200. It is more than 200 shy of that goal.”
This statement is false. It was candidate for Mayor Tim Keller who successfully argued and convinced city voters the city needs 1,200 officers.
The CASA originally required APD to conduct a staffing study to determine what level of sworn officers were required to carry out its functions. On December 11, 2015, the 62 page “Albuquerque Police Department Comprehensive Staffing Assessment and Resource Study” was released by the Alexander Weiss Consulting, LLC. The Alexander Weiss staffing report states:
“Based on our analysis the APD will be adequately staffed at the level of 1,000 sworn personnel.”
(See: Alexander Weiss Report, page 5)
The link to the Alexander Weiss staffing report is here:
The Wiess staffing report found that an APD staffing level of 1,000 sworn police was sufficient to deal with the city’s calls for service provided that certain calls, such as auto wrecks and false alarms, were no longer responded to by APD.
APD ON BRINK OF A CATASTROPHIC FAILURE
Quoting the Target 7 February 11 Investigation report:
“According to a recent report issued by a court-appointed monitor, APD is not close to ending the agreement and the city is in the process of negotiating an extension with the monitor.”
This is a complete understatement of just how bad APD’s present status is on implementing the reforms.
On Friday, October 6, 2020, Federal Monitor Ginger told the Federal District Court Judge overseeing the DOJ reform effort:
“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”
APD POLICE UNION IS THE COUNTER CASA EFFECT
It was on September 10, 2018, at a status telephone conference call held with the US District Court Judge that Federal Monitor Dr. James Ginger first told the federal court that a group of “high-ranking APD officers” within APD were trying to thwart the reform efforts.
The Federal Monitor revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants who are all allowed to be members of the police union under the union contract despite being management. The APD police union contract with the city violates state law by allowing management positions of lieutenants and sergeants to join the collective bargaining unit, yet the city has allowed it for many years. A link to a related blog article citing state law is here:
In his 10th report Federal Monitor Ginger referred to the group as the “Counter-CASA effect” and stated:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
“Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example … Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met.”
In the 12th Monitors report, Ginger states:
During the reporting period we encountered system-wide failures related to the oversight of force used by APD officers and supervisory and command review of those uses of force. The monitoring team has been critical of the Force Review Board (FRB), citing its past ineffectiveness and its failing to provide meaningful oversight for APD’s use of force system. The consequences are that APD’s FRB, and by extension APD itself, endorses questionable, and sometimes unlawful, conduct by its officers.
…
Still evident are systemic failures that allow questionable uses of force and misconduct to survive without being addressed in any meaningful way”.
In his 12th Monitor’s Report, Dr. Ginger also finds:
1.“… [When] … Internal Affairs … allow union representatives … and … officers to respond to salient, and reasonable, fact-finding questions by simply reading a Garrity statement [invoking the right to remain silent] … into the record, as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors.”
2. APD Internal Affairs routinely permits officers and union representatives to hijack internal fact-finding.
3. “[There] are strong under currents of Counter-CASA effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.”
4. Many of the instances of non-compliance seen in the field are a matter of “will not,” instead of “cannot”! The Monitor … report[s] … he see actions that transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership.
5. Supervision, which includes Lieutenants and Sergeants in the union, “needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”
COMMENTARY AND ANALYSIS
The most troubling and likely reason for the Target 7 investigation reports was to give the APD Police Union and the union president an opportunity to “vent” their anger at the mandated reforms and the reform process. Informed sources have confirmed that it was the police union or its supporters who contacted Channel 7, provided the station with information and then asked Channel 7 to report it.
The obvious goal of the Channel 7 stories was to try to discredit the reform process in order to deflect the fact that the union and its membership have been identified by the Federal Monitor as the biggest impediment to the reform process.
In the February 11 Target 7 report Shaun Willoughby, President of the Albuquerque Police Officers’ Association said in a self-righteous and angry tone:
“The whole [reform effort] system is set up to fail and the taxpayers and the people that live in this community like me and my family are the ones that are taking the brunt [of violent crime]. … Really look at this process. … It is absolutely out of control. … The entire department and the processes within it are out of control. Your officers are running out the door. Really look at every single state or agency that’s been involved in this process. … What is happening? Did it bring harmony and trust with the community? I don’t think so.”
These statements alone by Willouby evidence that it was Willouby or one of his supporters who contacted Channel 7 to do the smear reports of the DOJ reforms and the process.
NOT THE FIRST TIME, NOR THE LAST TIME
It was on January 28, 2021, KOAT TV asked APD Union President Shaun Willoughby to react to the number of homicides in January, 2021. Not at all surprising, Willoughby blasted the Department of Justice (DOJ) consent decree reforms for the city’s violent crime and murder rates and told Channel 7:
“This should be no surprise to anybody in this community. We had a staggering number of homicides last year we had record-breaking number of homicides the year before. … Violent crime increases at an alarming rate in this community. We have for the last six years and I’ll be the first to tell you it’s not getting better and anybody that says it is not telling you the truth. … the department has become more reactive to crime, than proactive. … We’re focused on the DOJ consent decree instead of fighting crime.”
https://www.koat.com/article/2021-starting-out-as-violent-year-in-abq/35356633
On February 15, the Albuquerque Journal reported that the city and the DOJ have agreed to hiring an outside team of investigators to assist APD internal affairs with police use of force investigations. A stipulated order has been negotiated between the city and the DOJ to hire a “Use of Force Investigation Team” and a hearing must be held by the court to approve it. The order says that the city should try to return full responsibility to the internal investigators within nine months but that the time could be extended if needed.
A link to the full Albuquerque Journal report is here:
https://www.abqjournal.com/2359745/city-doj-agree-on-outside-team-to-help-oversee-apd.html
The outside use of force team was also reported on by this blog on February 11:
“City Agrees To Hire “Outside” Use of Force Investigators To Review APD’s Use Of Force Cases; Where There Is A Will To Obstruct, APD And Union Will Find A Way”
The Stipulated Order provides:
“For each use of force investigation, EFIT shall evaluate the quality of IA force personnel’s investigations and immediately notify APD and APD’s legal counsel of any deficiencies or misconduct by IA force personnel related to their investigations. … APD shall promptly address these deficiencies or misconduct through corrective action or discipline, consistent with the (Court Approved Settlement Agreement), APD policy, and the (Collective Bargaining Agreement).”
The order says that the city will try to return full responsibility to the internal investigators within 9 months but that the time could be extended if needed. Part of the order mandates that APD increase its Internal Affairs Force Division from 14 to 25 investigators.
A link to the Motion and the Stipulated Order is here:
https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view
In the Albuquerque Journal February 15 article, Shaun Willoughby, president of the Albuquerque Police Officers’ Association, characterized the proposed “Use of Force Team” as a “Knee-jerk” reaction and said it was a reaction to the criticism by the Federal Monitor in his last report, which is the 12th report filed. According to Willoughby:
“I don’t think we need it. … Could we do better? Yes. Could we invest more? Yes. Is this a challenge? Yes, it is. We’re an understaffed police department, with a crime rate that is unprecedented in one of the most challenging processes in bureaucracies that this police industry has to offer. …”
Willouby added that Internal Affairs detectives are unhappy about the plan and some want to transfer back to the field. He said they feel like they’re being punished even though they were not given adequate training to do what they needed to do.
WHAT LIKELY IRKS THE POLICE UNION
The police union leadership have said in the past and in open court that the mandated reforms under the consent decree are interfering with rank-and-file officer’s ability to perform their job duties. According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. The police union has never articulated in open court and in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs.
It’s likely what the police union feels is interfering with its membership from doing their jobs includes one or more of the following:
1. The mandatory use of lapel cameras by APD.
2. APD police can no longer shoot at fleeing cars.
3. APD police can no longer use choke holds to subdue suspects.
4. APD police need to use less lethal force and not rely on the SWAT unit.
5. APD police must use de-escalating tactics.
6. All APD officers must be trained in crisis intervention.
7. APD management must now hold all subordinate police officers accountable for all levels of violations of standard operating procedures.
8. The mandatory “paper work” associated with any degree of use of force is too cumbersome.
9. APD Police officers are required to intervene when they witness and are concerned about other officers use of force.
10. Mandatory notification to superiors for investigation by police officers who witness another officer’s “excessive use of force” or violations of CASA reforms.
11. Management must hold police accountable for violation of standard operating procedures.
The police union and critics of the Federal Monitor have said that the monitor is “nitpicking” when the monitor points out specific incidents of APD management’s failure to enforce standard operating procedure. The policies are APD’s policies, not the monitors. Answering the charge of “nitpicking”, why bother having the policies if officers are not going to follow them and management refuses to enforce them.
The consent decree was negotiated to be fully implemented during a 4-year period and then after two years of compliance dismissed. Over 6 years have now elapse and APD is still struggling to implement the all 271 mandated reforms agreed to by the City and APD in 2014. What the union has been doing for the last 6 years is disrupting the reform process. Instead of fighting the consent decree, the police union should have embraced the reforms and help implement them. Only then will APD be able to fight crime.
POLICE UNION PRESS CONTACTS UNDERMINE CASA REFORMS
After the DOJ initiated the federal lawsuit against APD and the City, the APOA Police Union intervened almost immediately to become a party to the federal lawsuit in order to advocate for union interests in city policy. The City, instead of opposing the intervention to the lawsuit agreed to it and the Federal Court went along with it. Allowing the union to intervene and become a party to the lawsuit was a major tactical mistake by the city, but it is now a tactical mistake for the union to continually contact the press and complain.
By becoming a party to the federal lawsuit, the union is subject to the jurisdiction of the federal court as is anyone who appears to represent the union or participates with the court proceedings. The union leadership always appears at court hearings and has been at the negotiating table. For a full year, the union representative was involved with the drafting new “use of force” and “deadly use of force” policy.
Once a party becomes part of litigation, a party’s first amendment rights are curtailed to an extent and any conduct to obstruct or interfere with court proceedings is strictly prohibited. It’s referred to as “litigating your case in the press” to influence a court or jury with public opinion pressure. In lieu of first amendment rights, a party to a lawsuit has the ability to make objections known to the courts through motions filed with the court outlining their concerns and arguing in open court before the judge.
Federal courts do have the authority to issue “gag orders” to the parties as well as initiate contempt of court proceeding for direct or indirect violations of court orders. The Court Approved Settlement Agreement (CASA) is a court order. The union contributed to the one-year delay in writing the policies objecting to many provisions of the policies. If the police union has any real objections, criticisms or concerns about the reforms, it should instruct its attorney to file a motion before the court and scheduled a hearing to take testimony and evidence. The attempt by the union to litigate the CASA in the press by contacting the press is totally inappropriate and is likely unethical conduct.
The union and its attorneys would be wise to curtail the obvious union attempts to disparage or undermine in the press or obstruct the implementation of the DOJ reforms in the press, otherwise they risk the real possibility of the Federal Court, the DOJ or the City seeking contempt of court action or ask for a “gag order”.
Given the union’s past actions, it’s not likely they will ever listen to reason, especially when you have a union president who is attracted to TV camera lights like a moth to a light bulb on a hot summer night.