On Friday, December 4, an all-day status conference hearing was held “virtually” before Federal District Judge James Browning on the 12th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). Upward of 90 people participated via a ZOOM call.
During the hearing, it was revealed publicly for the first time that the City and the Department of Justice are negotiating a “stipulated order” for court approval that would create an outside “Use of Force Investigation Team”. The City and the DOJ want to file the stipulated order in January. The order is being negotiated between the city and the DOJ to avoid having the DOJ seek “contempt of court” against the city and APD for intentional violations of the Court Approved Settlement Agreement (CASA) by APD outlined by the Federal Monitor in his 12th Report.
Both the City and the DOJ failed to seek any input on the stipulated order from the stakeholders or the amici groups. When given the opportunity to address the court, the amici groups and other stake holders expressed opposition to creating a “use of force investigation team”. The groups view it as a step backward that will lead to APD not doing its job in the reform process.
This blog article is an in depth report on the December 4 hearing and a discussion of what needs to be done and the recommendation of 8 sua sponte orders.
USE OF FORCE INVESTIGATION TEAM
During the December 4 status conference hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told Judge Browning:
“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”
The enforcement action that could have been filed is a “Motion for Contempt of Court” seeking sanctions against the City and APD for intentional violations of the CASA. Another option would have been to have had APD placed in a “receivership” with the appointment of a Special Master to take over the day to day management of APD, something advocated for by police reform advocacy groups.
As presented during the hearing, the investigation team will be totally independent from the city and the APD Internal Affairs Unit and APD Force Review Board. the Use of Force Investigation Team would consist of highly experienced professionals, potentially from all over the country, whose responsibility would investigate level 2 and level 3 uses of force which involve great bodily harm, permanent injury or death. The outside team of experts would interact with APD personnel, gather evidence as needed and conduct interviews if needed and submit final reports within a very short time frame of weeks. Normally, such investigations have been taking upwards of 6 months to a year.
Killebrew said the proposal is for the city to hire external investigators who could work remotely from anywhere in the country, at least until the pandemic no longer poses a problem. Existing Internal Affairs Force Division detectives would conduct the on-the-ground investigation at the scene, including taking photographs and taking witness interviews. The investigation materials gathered would be sent to the external investigators. The external investigators who would determine if they think force was improperly used. Discipline recommendations would also be made.
The city’s procurement process would be used and the city would fund the services. The goal would be to hire the most qualified professionals with a proven track record. Final reports prepared by the “use of force” investigation team would then be forwarded to the city’s Use of Force Board.
According to Killebrew, the use of force investigation team will not be easily side tracked by APD interference and resistance and put it this way:
“There are not that many human beings that stand between Internal Affairs Force investigators and the chief of police … We believe that if the external team conducts the investigation and recommends a finding of out of compliance and recommends discipline, it will be obvious to us if the external team’s findings are being undermined by the commander over IAFD, the deputy chief or by the chief. We can then target any necessary action at those levels of command.”
Judge Browning stated that a stipulated order creating a “use of force” investigation team was not as intrusive as putting the city under a receivership. However, Judge Browning did question if creating such a “use of force” team outside the city for investigation was a “tremendous loss of sovereignty and self-direction by the city”.
Special counsel Killebrew said he agreed with the Judge but he said there are some cases where external investigations are already happening, such as those done by the Civilian Police Oversight Agency or when the police department requests it in cases where high ranking officials are implicated. What was not disclosed to Judge Browning is that the City has an extensive history of using a private investigation company that is comprised of retired APD Police Officers who have been on more than one city contract over the years. In other words, you have former retired APD Officers investigating APD Officers.
Killebrew made it clear the possibility of filing for contempt against the City and APD is not off the table if the negotiations with the city on the stipulated order break down and no agreement is reached.
INTERIM CHIEFS’ REACTION
Interim Chief Harold Medina during his presentation to the court acknowledged multiple missteps in criminal investigations over the years and said:
“It’s very apparent that in our investigative process, we don’t have a strong bench … It’s not just in the terms of force investigations. You’re from the city, your honor, I’m sure you watch the media, we’ve had some major debacles over the years in our investigative division. We need to teach people how to be investigators and bringing outside entities to help us will only make us stronger.”
Medina also told Judge Browning that he knows there are officers in the department who are resisting the reform process. He went on to add that they need to be held accountable with some even fired. Medina told the court:
“None of us come to work every day to end someone’s career, and at the times when those tough calls need to be made, the executives of this department have to have the courage to make those tough calls and to continue to make those tough calls. … The community deserves it and their fellow officers deserve it because there are a lot of officers out there every day doing their jobs to the best of their abilities, they’re not violating anyone’s rights, they’re not using excessive force.”
Medina acknowledged previous reports of his involvement with officer involved shootings which were reported extensively on when he was appointed Interim Chief, but he said he was never disciplined because he did not violate standard operating procedures. A link to a related blog article on Medina outlining his involvement in use of deadly force is here:
CITY AND DOJ IGNORED ADVOCACY GROUPS INSTRUMENTAL IN BRINGING DOJ TO CITY
During the presentation of Special Counsel Paul Killebrew on the stipulated order the DOJ and the City are negotiating for the creation of a “use of force team”, it became painfully obvious that the City and the DOJ did not even bother to confer with the police reform advocacy groups, amici and stakeholders. It was the advocacy groups that can be credited as the most instrumental in bringing the DOJ to the city in the first place demanding investigation of APD for excessive use of force, deadly force and racial profiling. The police reform advocacy groups demanded action from the Department of Justice as well as Mayor and City council. The police reform advocacy groups during their presentations to Judge Browning made it known that they felt that an outside “use of force team” would be a major mistake.
Police reform advocacy groups submitted letters to the court outlining their concerns over the 12th Federal Monitors Report. The attorneys submitting letters included Civil Rights Attorney Peter Cubra on behalf of plaintiffs in a state prison overcrowding case and NM State Representative Moe Maestas who represents a group known as the “Community Coalition”. Also submitting a position letter was APD Forward.
The Community Coalition comprises a number of minority originations and individuals. It includes individuals who have actually been victimized by APD over the years or whose family members have been victimized. The coalition includes family members who have sued APD and the city for wrongful death actions and with some settling their cases for millions of dollars.
APD Forward includes 19 organizations who have affiliated with each other in an effort to reform APD and implement the DOJ consent reforms. Members of APD Forward include Albuquerque Health Care for the Homeless, American Civil Liberties, Bernalillo County Community Health Council, Common Cause New Mexico, Disability Rights New Mexico, Equality New Mexico, League of Women Voters of Central New, Mexico New Mexico Conference of Churches, New Mexico Criminal Defense Lawyers Association, Sierra Club Rio Grande Chapter, the Transgender Resource Center of New Mexico and the American Civil Liberties Union (ACLU).
After six years of the consent decree the APD reform advocates for the first time included a request that the Federal Court be far more aggressive with mandating the CASA reforms. One letter goes as far as to asked for the city and the Albuquerque Police Officers Association be held in civil contempt of Court.
A link to a related blog article is here:
APD Forward in its letter points out that the 12th Federal Monitor reports identify several places he traces resistance to interference by the police officer’s union. APD Forward goes on to ask the question:
“Why is the Albuquerque Police Officers’ Association still included as a litigant in the CASA when they have been actively undermining reforms?”
State Representative and private attorney Maestas goes as far as to suggest that the city renegotiate the police union terms that are conflict with the CASA. If new union contract terms are negotiated, one term that needs to be negotiated is who are allowed in the bargaining unit.
The advocacy groups asked the judge to hold the city in contempt of court and to place APD in “receivership” where a court appointed receiver, also known as a “special master” would act as a de facto police chief and enforce the settlement agreement. At the November 4th hearing, the advocacy groups strongly objected to the idea of external investigators, saying that measure is not going to solve the root problems that have plagued APD for the last 6 years.
During the hearing, Civil right attorney Peter Cubra specifically asked Judge Browning to hold the city in contempt. Cubra complained that the public has no idea about how often force is being used unconstitutionally due to the poor quality of reporting and investigations. Cubra also said he was “distraught” about the idea of bringing in external investigators by saying:
“There is nothing about subcontracting investigations to somebody else that will lead this to be over. … Paradoxically, if we let the city off the hook and say, ‘OK don’t investigate improper use of force,’ how will they ever get the case over? They actually have to learn how to do it.”
FORCE REVIEW BOARD
Assistant City Attorney Lindsay Van Meter gave a presentation to Judge Browning which included a report on the Force Review Board. The Force Review Board consists of high ranking APD Officials that review use of force incidents. Van Meter acknowledge that there have been serious issues with the Force Review Board and that it had “experienced growing pains”. Van Meter told Judge Browning that board members were asking more probing questions and have made many more referrals for additional investigations.
Van Meter said while the board has started to identify problems with the use of force investigations itself, there is room for improvements. According to Van Meter bringing in an outside entity would be helpful and she had this to say:
“The city does believe that a substantial part of what will be required will be training APD investigators in the proper standards and looking at those systems developed by APD and ensuring that those systems are not going to lead to failure. … So the city is working with the DOJ … . They did send over a stipulated order.”
A link to news coverage and quoted source material is here:
https://www.abqjournal.com/1523741/city-doj-consider-outside-investigators.html
WHY DID IT TAKE SO LONG?
One question asked by Judge Browning during the November 4 hearing was “why did it take so long to rewrite the use of force policies” and why couldn’t the parties just adopt policies that have been written elsewhere, by taking them “off the shelf” so to speak. The answer to Judge Browning’s question is threefold:
1. The prior Berry administration claimed that it was told by the Federal Monitor that it could not adopt best practices and policies from other jurisdictions and that APD would have to draft its own policies.
2. The police union contributed significantly to the one-year delay in writing the policies objecting to many provisions of the policies as “unworkable” or “unreasonable”. The police union repeatedly objected to the language of the use of force policy and deadly force policy. This was evidenced by the monitors claim that submitted use of force policy was missing key components and the monitor saw 50-plus changes needing to be made to satisfy union objections.
3. Early in the process of writing the use of force and deadly force policy, the Federal Monitor was essentially asked the same question asked by Judge Browning as to why policies written elsewhere could not be adopted. The Federal Monitor expressed his opinion that he could have easily written the policies “off the top of my head” but refused to get involved with writing the use of force or deadly force policy saying it was not his job and it was up to the parties to write their own.
FEDERAL MONITOR DEFENDS WORK PRODUCT
During the December 4 status conference Judge Browning ask the Federal Monitor to respond to public criticism that his charges are excessive. Ginger’s response was that he stood by all the worked done by his monitoring team. He noted the contract was awarded by competitive bid and his firm was the lowest bidder.
Ginger stated his monitoring team has provided to the city services above and beyond what is required under the contract. Ginger from the very beginning has said his job is not to tell APD what to do, that he has no management nor control over APD and that all he could do was audit and report to the Federal Court.
In 2014, the prior Republican Mayor Administration entered into a $1 million dollar “no bid contract” and retained 2 national experts to negotiate Court Approved Settlement Agreement (CASA). Under the CASA, the city agreed to 271 reforms and agreed to pay for a Court Approved Monitor to audit APD’s progress implementing the reforms.
In 2015, Dr. James Ginger and his firm of PMR Inc of South Carolina were selected by the DOJ and appointed by the court as the Federal Monitor. Dr. James Ginger, is a nationally recognized expert on police reform and organizational change and he hand-picked nine people from across the country, each with a different background and expertise in police reform. Ginger has successfully overseen similar agreements and has worked with law enforcement agencies in Pennsylvania, New Jersey, New York, Ohio, Texas, Florida, Georgia, Alabama and Indiana. Ginger’s contract was originally for $4.5 million dollars for a 4 year period. The Federal Monitor will also be paid an additional $500,000 for further services.
The CASA was to have been fully implemented after 4 years and was to be dismissed after two consecutive years of 95% compliance of the reforms. It has now been over 6 years since the CASA was agreed to by the city. During the last 6 years, there have been 2 United States Attorneys for New Mexico, 2 federal judges assigned to the case, 2 Mayors elected, 3 APD Chiefs appointed and upwards of $40 million spent by APD to implement the reforms.
DRAIN ON CITY RESOURCES FOR REFORM EFFORTS
During the December 4 hearing, Federal Judge James Browning asked city representatives to address critics arguments that too many law enforcement resources are being spent on CASA reforms that would be better used for law enforcement priorities. The Assistant United States Attorney for New Mexico responded no and argued that those who enforce the law must not be above the law and the resources being spent are necessary for the oversight. Interim Chief Harold Medina for his part said the resources are needed to ensure that police officers are doing their jobs in a constitutional manner and said:
“The community deserves it and their fellow officers deserve it because there are a lot of officers out there every day doing their jobs to the best of their abilities, they’re not violating anyone’s rights, they’re not using excessive force.”
WHAT IS BEING SPENT ON CASA REFORM EFFORTS
The Fiscal Year 2020-2021 approved general fund budget for APD contains a line item of $29,280,000 for “PD-PROFESSIONAL ACCOUNTABILITY”. The funding is for the Compliance Bureau which has 61 sworn police assigned to the APD divisions associated with the Department of Justice Consent Decree reforms and enforcement.
The Albuquerque Police Department (APD) is the largest budget department in the city with the city council approving a $212 million budget. The approved budget funds a total of 1,678 full time positions that includes 578 civilian staff and funding for 1,100 sworn police. Currently, APD has 980 sworn police.
The APD approved budget includes $5.2 million for continued work to comply with the Court Approved Settlement Agreement with the Department of Justice. Appropriations in the 2021 adopted budget include:
$627,000 to acquire electronic control weapons that have an audit trail to monitor usage and compliance with use of force policies.
$594,000 to purchase on-body cameras, as required by the CASA and now state law.
$500,000 for the Violence Intervention Program, including restorative justice programs, which has a track record of dramatically reducing violence in cities across the nation.”
The link to the 2020-2021 proposed adjusted budget is here:
https://www.cabq.gov/mayor/documents/final_fy21-budget-presentation-_09032020.pdf
COURT QUESTIONS ROLE OF POLICE UNION
Throughout the December 4 day’s long hearing, Federal Judge Browning asked a number of those who made presentations about the role the APD Union Police union. The same questions on the police union were asked of the Department of Justice Attorneys, the Police Union Attorney and Interim Chief Harold Medina.
EDITORS NOTE: The Chief, the 5 Deputy Chiefs, Assistant Deputy Chiefs and all APD Area Commanders are “unclassified” positions and they can be terminated “without cause” at any time. They are prohibited from being members of the police union and are management. The Chief serves at the pleasure of the Mayor and Deputy Chiefs and Area Commanders serve at the pleasure of the Mayor and Chief and can be terminated without cause. APD Lieutenants and Sergeants, Detectives and Patrol Officers are all are “classified” positions and can only be terminated for cause and are part of the union. Any and all disciplinary actions taken against APD Lieutenants and Sergeants, Detectives and Patrol Officers are governed by the union contract. APD Lieutenants and Sergeants are management positions but are classified positions and are covered by the union contract.
POLICE CHIEF CANNOT FIRE CLASSIFIED SWORN PERSONNEL; BOUND BY UNION CONTRACT
A question asked by the court was if the APD Chief had the authority to fire any police officer immediately for clear or obvious police misconduct that is found or reported upon, even by news sources. The answer to the question given by Elizabeth Martinez, Assistant United States Attorney for New Mexico and Interim Chief Harold Medina was no, the chief cannot fire union members without cause.
Judge Browning was told that any disciplinary action against any member of the police union is governed by the collective bargaining unit contract. The police union contract outlines police officers’ personnel rights and remedies, provides for personnel hearing, provides for internal affairs investigations, and provides for progressive discipline and the use of a matrix for discipline available.
DECERTIFICATION OF UNION
Judge Browning asked Paul Killebrew, special counsel for the DOJ’s civil rights division, if the court had the authority to “decertify” the police union, ostensibly for violating the terms of the CASA. Killebrew said he has never been asked the question, he had no opinion and said the question needed to be researched. Union attorney Fred Mower responded that the union has a binding negotiated contract under federal labor laws and it has not violated the union contract.
LIEUTENANTS AND SERGEANTS
Judge Browning asked the question if APD Lieutenants and Sergeants should be allowed to be part of the police union. No clear response was given by the DOJ and City Officials, but the Police Union Attorney said yes. Interim Chief Harold Medina said he was “pro union”, he has worked with the union President and had no problem with Lieutenants and Sergeants being part of the collective bargaining unit.
Judge Browning asked the question if he could hold the Union in Contempt of Court and DOJ and City Officials gave no clear-cut answer while the Union Attorney said the union has not violated the collective bargaining contract. Judge Browning also raised the prospect of APD’s Internal Affairs Unit be abolished, but gave no inclination if that should be done.
COMMENTARY AND ANALYSIS
It is understood that “settlements” are preferred by the courts instead of aggressive litigation, hearings and trials. Notwithstanding, it is extremely disappointing that the City, APD and the Department of Justice (DOJ) essentially ignored and turned their backs on the citizens of Albuquerque, including victims of police misconduct, the amici groups and public stakeholders who they are supposed to be representing, in order to negotiate the creation of a “use of force investigation team”.
When it comes to government and law enforcement, settlements must include conferring with those who will be affected the most by those settlements. In criminal prosecutions for example, plea agreements are between the government and the defendant in the case. However, there is a “victims bill of rights” in New Mexico and prosecutors have a duty to confer with victims of the crime before agreeing to plea and disposition agreements and sentencing agreements approved by a Judge.
What the City, APD and DOJ have done is attempt to negotiate a stipulated order to create another level of bureaucracy with the creation of a “use of force team.” The DOJ is essentially throwing in the towel on forcing the city to do what is required under the CASA. The DOJ is giving APD another way out of a problem its management and the police union have created on their very own. After 6 years, there is still overt resistance to the consent decree by not assuming responsibility for investigating use of force and deadly force cases in a proper way.
TOO LATE FOR RECIEVERSHIP; GIVE FEDERAL MONITOR DIRECT AUTHORITY OVER APD
Forcing APD into receivership now and appointing a Special Master to take over APD with extensive powers to manage and operate the department on a day-to-day basis should have been done in the first place 6 years ago. It’s way too late now. The city has spent millions on the reform process, is spending even more and there is really no end in sight. Forcing APD into receivership at this point would be a waste of time, cause further delay and would be a reflection that the CASA has failed.
The CASA is a 112-page, federal court approved agreement with 344 paragraphs containing 271 mandated reforms. A link to the CASA is here:
http://documents.cabq.gov/police/reports/department-of-justice/465-second-amended-restated-casa.pdf
To be perfectly blunt, the CASA with all of its 271 mandated reforms and auditing requirements is a “law enforcement management nightmare”. The CASA has gone a long way to setting the city and APD up for failure because of its complexity and costly mandates, training requirements and personnel demands.
Paragraphs 294 and 295 of the CASA are worth noting:
A. Independent Monitor
294. The Parties will jointly select an Independent Monitor (“Monitor”) who will assess and report whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in high-level, quality service; officer safety and accountability; effective, constitutional policing; and increased community trust of APD.
295. The Monitor shall only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor shall not, and is not intended to, replace or assume the role and duties of APD, including the Chief or any other City official. The Monitor shall be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.
The Federal Monitor’s lack of authority over APD has contributed substantially to the problem of systematic failure of the CASA, especially having no authority to write policy and no authority to remove and appoint personnel and issue appropriate orders and commands to sworn personnel. One way of rectifying the situation is designating the Federal Monitor as a “Special Master” with limited management and control over APD including the authority to terminate, suspend, transfer employees and impose disciplinary action and write and implement executive orders for implementation. Dr. Ginger is more than capable of assuming such responsibilities given his success in other departments and his background.
COMPLICATING FACTORS
The single most remarkable understatement made during the entire one-day hearing was made by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew when he said:
“APD has proven over and over again its agility to avoid the requirements of the CASA.”
No kidding Sherlock! Notwithstanding his comment, Killebrew felt the “use of force” investigation team should be implemented even with the risk of APD continuing to avoid the CASA. The DOJ is seriously mistaken if it feels a use of force team, especially whose work is done remotely, will be able to avoid APD agility and resistance to the reforms.
For the past 6 years, the CASA has been plagued with inconsistencies, conflicts, and the political turmoil. In the last 6 years there have been 3 United States Attorneys General, 2 Federal Judges assigned to the case, 2 appointed New Mexico United States Attorneys, the City has elected 2 Mayors, there have been 3 police Chiefs, the court has called a “reset” of the process 3 years ago after the current Mayor was elected, the APD has undergone at least 3 reorganizations, the high command of Deputy Chiefs and Area Commanders has changed at least 3 times with reorganizations.
There have been only 3 consistent factors relating to the CASA: the reforms mandated by the CASA, the same federal monitor and resistance to the reforms by APD.
There are a number of factors that will complicate the enforcement the stipulated agreement being negotiated for creation of a use of force investigation team and for that reason the court should deny signing off on the stipulated order. Factors that must be taken to account are:
1. President Joe Biden will be sworn in on January 20 and a new U. S. Attorney General and new United States Attorney for New Mexico will likely soon follow within 6 months. The DOJ priorities will likely change and the DOJ commitment to the consent decree may be waning, which could be the reason for the proposed settlement.
2. The city is conducting a national search for a new chief of police and whoever is in fact hired will once again be subject to termination if a new Mayor is elected in less than 11 months on November 5, 2021. There is no doubt that APD, the failure of implementation of the CASA reforms and the City’s high crime rates will be front and center in the 2021 Mayor’s race.
3. The creation of a new use of force team is nothing more than creating another level of bureaucracy that will be costly. It will almost assuredly guarantee that the CASA will continue for any number of years and beyond the 6 years as was originally envisioned because APD will still have not learned to properly do use of force investigations.
4. It’s more likely than not APD management, the union and rank and file will continue with their efforts of “noncompliance”, not overtly, but in a manner to avoid detection and once again using “agility to avoid the requirements of the CASA.”
WHAT CAN BE DONE NOW
APD is a “para-military” organization and as such the “chain of command” must be honored and the lines of authority must not be blurred to the point where management and subordinates become one and the same for the purpose of enforcing policy and the CASA mandates. Allowing management positions to be part of employee bargaining unit is a recipe for disaster, which is exactly what has played out for the last 6 years with the Court Approved Settlement Agreement (CASA).
The current police union contract expired on June 30. The City and the Union have now suspended their negotiations because of the corona virus pandemic and the uncertainty of the city’s revenues for the new fiscal year that begins July 1. Until a new union contract is negotiated and approved, the terms of the old contract are followed.
The Federal Court should order the City and the Union immediately back to the negotiating table to negotiate a new contract. The new contract needs to have provisions that will ensure that the CASA reforms are accomplished and do not conflict with the CASA reforms. New terms to include in the new contract are the following:
1. The City needs to move to make sergeants and lieutenants “at will employees” who can be terminated without cause. Sergeants and lieutenants need to be removed from the collective bargaining unit in order to get a real buy in to management’s goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms.
2. The APD Police Chief needs to be given authority to immediately terminate sworn police who are members of the union. As a condition of employment, union members would be subject to immediate “termination for cause and without any delay” for incidents and conduct that are clearly in violation APD standard operating procedures and violations of civil rights as found by the Chief of Police. Examples of conduct or incidents meriting immediate dismissal would be those captured by lapel camera video or citizen cell phones. Another reason for immediate termination would be insubordination and a finding by the Chief of deliberate resistance to the CASA reforms. The union contract can define and outline circumstances and situations the Chief can immediately terminate a member of the union. Immediate terminations by the Chief would be subject to appeal and due process before the City’s Personnel Board for affirmation of the termination or reinstatement of the officer.
The Police Union no doubt wants to continue the terms of the expired contract, including who is in the collective bargaining unit and drag out all disciplinary actions as long as possible. There is no real excuse to delay negotiations on the police union contract. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.
HOLD UNION IN CONTEMPT OF COURT AND DISMISS UNION AS PARTY
The City and the Department of Justice need to move for the dismissal of the police union from the federal court proceeding or file Motion for Contempt of Court against the union. In addition to numerous findings in all 11 past monitors reports, the Federal Monitor in his 12th Report identified 5 major areas of interference by the police union with the CASA:
1.“… [When] … Internal Affairs … allow union representatives … and … officers to respond to salient , and reasonable, fact-finding questions by simply reading a Garrity statement … 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 reports 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.”
By intervening in the case, the union has now made itself a party to the lawsuit and subject to the jurisdiction of the court exposing itself to contempt proceedings for interference with the CASA reforms. Dismissal of the union from the case will allow APD command staff and management more authority do its job with enforcement of the CASA mandates and implementation of all 271 reforms. The police union should be designated by the court as an “amici” stakeholder but prohibited from participation of any negotiations related to the CASA policies.
ABOLISH APD INTERNAL AFFAIRS AND TURN OVER FUNCTIONS TO INPSPECTOR GENERAL, INTERNAL AUDIT AND HUMAN RESOURCES USE OF FORCE INVESTGATION TEAM
APD has consistently shown over decades it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice. The APD Internal Affairs Unit needs to be abolished and its functions absorbed by other civilian departments that already exist.
The stipulated order creating a “Use of Force Team” is clearly an attempt by the city and the DOJ to address the monitor’s complaint about how use-of-force cases are being investigated. Under the proposed order, the city will hire “external investigators” under city contract to take over use of force from Internal Affairs. The Force Review Board (FRB) , made up of APD top officials, that also reviews the use-of-force investigations will still exist and their conclusions will be used in part to determine whether the cases have been properly investigated. The Civilian Police Oversight Agency and its board will ultimately replace the federal monitor under the CASA and will review the board’s decisions.
The proposed stipulated order creating a “Use of Force Team” reflects a serious misunderstanding or ignorance of how the city operates and other existing departments and their functions. There really is no need to add an additional level of bureaucracy in the form of a “use of force” team. There are existing resources that could be used to do the work without the city giving up a “tremendous loss of sovereignty and self-direction by the city”.
The Mayor and the Chief Administrative Office have the authority to issue executive orders or executive communications (EC) for city council approval to abolish the APD Internal Affairs Unit and then create “use of force teams” as envisioned by the proposed order using existing city resources and departments that have been given extensive authority including the power to subpoena, gather evidence and conduct interviews and that already have investigators.
The responsibility of investigation of police misconduct cases including excessive use of force cases not resulting in death or serious bodily harm should be done by “civilian” personnel investigators and not sworn police. The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by police can be delegated by the Mayor and be assumed by the Office of Inspector General in conjunction with the Internal Audit Department and the City Human Resources Department. The Office of Inspector General, by city ordinance, is given specific authority to investigate city employee misconduct.
PROPOSED SUA SUPONTE ORDERS TO ENFORCE CASA
Immediate action needs to be taken to turn APD around. It’s action only the court can take at this time by issuing sua suponte orders. It is recommended that the federal court consider the following findings and issue orders as follows:
1. Find the Police Union in contempt of court for intentional interference or obstruction of the CASA identified by the Federal Court Monitor in all of the Monitor’s Reports as the “Counter CASA” effect and as a sanction impose a fine or an admonishment.
2. Find that APD Sergeants and Lieutenants are part of APD management and ineligible for membership in the union and became “at will” employees when the union contract expired on June 30, 2020 with the makeup of the collective bargaining unit to be renegotiated for contract renewal.
3. Dismiss the Union as an intervening party and prohibit the union from further participation in the litigation other than as a “friend of the court” like APD Forward and the Community Coalition.
4. Order the City and Police Union to commence and complete all contract negotiations to eliminate contract terms that are in conflict with the CASA and its enforcement. One term to be negotiated is to giving the APD Chief of Police authority to immediately terminate for cause and without any delay sworn police who are members of the police union for incidents and conduct that clearly violate APD standard operating procedures, violate civil rights and the use of deadly force.
5. Deny approval of the Stipulated Order between the City and the DOJ to create a Use of Force Investigation Team.
6. Enter orders granting the Federal Monitor specific management control and authority over APD personnel policies and procedures and standard operating procedures (SOPs) to implement the 271 CASA reforms to bring the department in compliance and giving the Federal Monitor the authority of a “special master.”
7. Order the City to abolish the APD Internal Affairs Division and have its functions assumed by the city’s Inspector General, Internal Audit and Human Resources Department.
8. Order the Mayor and the Chief Administrative Office to issue executive orders known as Executive Communications (EC) for City Council approval to abolish the APD Internal Affairs Unit, create “use of force teams” within the city consisting of representatives from the City’s Inspector General, Internal Audit and the Human Resources Departments.
CONCLUSION
After 6 years of work under the CASA, the city has a police department that is failing miserably to police itself and on the brink of catastrophic failure. The Federal Monitor also bears some responsibility and his repeated reporting on APD’s failures to implement the CASA reforms and complaining and lamenting over the “Counter Casa Effect” does not get the job done.
At this point in time, it is strongly recommended that the Federal Court take definitive action and issue appropriate court orders that are within its discretion to accomplish and enforce the terms and conditions of the CASA with the eventual dismissal of the case as the goal.
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POSTSCRIPT
SCATHING MONITOR’S REPORT
On November 2, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 12th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The link to the City web site with entire 12th Federal Monitor’s report is here:
The 12th Monitors report was the most scathing of the reports filed to date. The monitor told the court during a separate October 6 hearing:
“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.”
With respect to APD’s use of force oversight, the monitor said in his 12th Report it was failing “system wide”:
“… [D] 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.
Convening an FRB serves several key purposes, chief among them is to create a forum for executive oversight that pushes department-level expectations down through all levels of supervision. … Of the cases … reviewed that were approved by the Force Review Board, the [monitoring team] saw:
-Instances where obvious uses of force went unreported and investigated
-Evidence of supervisory failures
-One instance of misconduct in which unjustified force was used on a handcuffed person who was likely suffering from a form of mental disability. …
What this means is simple: that after two years of conceptualizing, recasting, and implementing new use of force policies; delivering meaningful training of those policies; training IAFD personnel to properly investigate uses of force; putting a video review unit in place; exhaustive technical assistance from the monitoring team; and reconstituting the FRB under new policies and training; the system is still ineffective in providing oversight of uses of force.
During the … reporting period, APD continued to struggle to establish a system of force oversight and the accountability for officer conduct. These struggles have significant influence on the organization’s efforts to achieve Operational Compliance. Still evident are systemic failures that allow questionable uses of force and misconduct to survive without being addressed in any meaningful way.”
Regarding one disturbing use of force incident the Monitor reported:
“After six years of ‘reform’ at APD, after six years of acute and intensive technical assistance and assessment from the monitoring team, after six years of exhaustive (and critical) reports from the monitor; after six years of ‘effort,’ this knowable and egregious case floated through (several) levels of review at APD … (on-scene officers; on-scene supervisory personnel; ‘upstream’ area command supervisory and management personnel; video review unit personnel; IAFD; and FRB) and all … of those levels managed to ‘not see’ a clear and (convincing) incident of deliberate excessive use of force against an individual obviously suffering a crisis.”
The link to a related blog article on the 12th Federal Monitors Report is here: