In May, 2020 African American George Floyd was killed while in the custody of Minneapolis police when a police officer used his knee on Floyd’s neck to subdue him, even after Floyd cried out repeatedly “I can’t breathe”. The death of Floyd caught on camera shocked the conscious of the country, and the world, resulting in mass protests to end systemic racism by law enforcement. New Mexico also had such protests in Albuquerque, Santa Fe and Law Cruces.

In response to Floyd’s killing, Governor Lujan Grisham and the Legislature took steps to deal with holding law enforcement accountable for civil rights violations, excessive use of force and deadly force. Those steps included requiring all law enforcement officers to wear lapel cameras and requiring the Law Enforcement Academy Board to revoke the certification of any police officer guilty of “unlawful use of force” or an officer who fails to intervene to stop the use of unlawful force by another officer.

Because of the Floyd killing and the killing of many other African Americans at the hands of police, ending the legal doctrine of “qualified immunity” has become a goal of the Black Lives Matter movement and many progressive Democrats throughout the country. Qualified immunity is seen as a barrier to holding police officers accountable when they use excessive force and deadly force.

After the Floyd murder, other states have enacted police reforms. The Colorado legislature passed a reform law that eliminated the defense of qualified immunity in state civil rights lawsuits and took it a step further by making police officers personally liable for up to $25,000 in damages. California has had a civil rights act for some time and it excludes “qualified immunity” as a defense for government employees named in lawsuits. The State of Massachusetts is considering amending its civil rights law to prohibit the defense of qualified immunity after the Massachusetts state’s highest court allowed the defense because it was not prohibited by statute.

“Qualified immunity” is a legal principle or doctrine that was created by the United States Supreme Court that shields government officials, including police officers, from lawsuits except in cases where a plaintiff can prove that officials violated “clearly established” rights. Qualified immunity is a high legal threshold that leads to many cases being dismissed in federal court cases. As it stands now, qualified immunity applies to federal causes of action in federal civil rights and wrongful death actions. It does not involve nor is it available as a defense in state causes of action. Wrongful death lawsuits in police use-of-force cases have cost New Mexico and the City of Albuquerque millions of dollars over the last 20 years. The postscript to this blog article contains an explanation of “absolute immunity” and “qualified immunity”.

NEW MEXICO CIVIL RIGHTS COMMISSION

The New Mexico legislature took steps to consider enactment of a state civil rights law creating a civil rights cause of action against law enforcement and public government employees that would specifically prohibit the defense of qualified immunity. Qualified immunity is viewed as a major barrier or obstacle to holding police officers accountable when they use excessive force. Governor Michelle Lujan Grisham called upon the New Mexico Legislature to create a Civil Rights Commission. It was in June that the 2020 New Mexico Legislative Special session convened during which the “New Mexico Civil Rights Commission” was created. There were 3 functions of the 9-member, bi partisan commission:

1. Review policies and develop policy proposals for laws for the creation of a civil right of action for the deprivation, by a public body or a person acting on behalf of or under the authority of a public body, of any right, privilege or immunity secured by the constitution of New Mexico.

2. Review the use of qualified immunity as a defense to liability by an employee of a public body for a claim that would be brought either under 42 U.S.C. Section 1983 or pursuant to the right of action considered by the commission.

3. Review and assess the need for and costs of additional insurance policies for public employees and public bodies, or for persons acting on behalf of or under the authority of public bodies.

https://www.generalservices.state.nm.us/crc.aspx

EDITORS NOTE: Civil causes of action under the federal statute 42 U.S.C. Section 1983 are referred to as “Section 1983 Litigation” which are lawsuits brought under Section 1983 (Civil action for deprivation of rights) of Title 42 of the United States Code (42 U.S.C. § 1983). Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations. Section 1983 does not provide civil rights but it is a means to enforce civil rights that already exist.

APPOINTED COMMISSION

Under the legislation, legislative officials appointed 6 members and the Governor appointed 3. The commission is required to be geographically and racially diverse. The bipartisan commission includes four Democrats, three Republicans and three unaffiliated members. Two of the governor’s appointees are Hispanic and one is African American.

The commission was given until November 15 to issue a report that considers changes to qualified immunity provisions that protect police officers from civil lawsuits. It is also tasked with recommending laws that create a civil right of action for violations of state constitutional rights.

COMMISSION RECOMMENDS ENACTMENT OF “CIVIL RIGHTS ACT”

On November 12th, after meeting at least 7 times since being formed and hearing expert testimony on legal and law enforcement issues, the New Mexico Civil Rights Commission voted to recommend the enactment of a “New Mexico Civil Rights Act.” The new Civil Rights Act would allow legal claims to be filed in State District Court over alleged infringements of free speech, freedom of religion and other constitutional rights. The Civil Rights Commission voted 5 to 4 in favor of enactment. The commission made it known that two separate reports will be prepared, one by the majority and one by the minority who voted in opposition. Both reports will be presented to legislative committees before the 60-day session that will begin on January 19, 2021.

Under the proposed law, claims of constitutional rights deprivations would be able to be filed in all State District Courts around New Mexico. Currently, such claims of constitutional rights can only be filed in federal court but not in state courts. The practical effect under the current law is that whenever wrongful death cases are filed involving a police officer shooting, the case is removed to federal court where federal case law applies. In the state of New Mexico, the overwhelming number of officer involved shooting cases result in settlements and no jury trials. The proposed state Civil Rights Act will create a separate state cause of action and in turn a framework to recover for alleged constitutional infringements under state law. The new law would also bar the use of “qualified immunity” as a legal defense as is allowed in federal court. The proposed law would allow plaintiffs to seek only compensatory or actual damages, but not punitive damages. In other words, judgments secured in a state court cause of action would only be the actual costs associated with the injuries, such as medical bills, for injuries or losses incurred.

Under the proposed legislation, individual law enforcement and other government officials would not be “personally liable” to pay actual or punitive damages awarded by a jury, a judge or agreed to in a settlement. Under the proposed Civil Rights Act, such damages would be paid by the public agency or body that employs the law enforcement officer or government employee. Damages being paid by the public agency or body that employs the law enforcement or government employee sued is already required under the New Mexico Tort Claims Act. The new act would require public government entities to keep a file of all judgments and settlements under the proposed Civil Rights Act and make the records available under the state’s Inspection of Public Records Act (IPRA).

The legislation will now be drafted in a final form for introduction and consideration during the 2021 New Mexico Legislative session that begins on January 19, 2021. As being proposed, the new New Mexico “Civil Rights Act” will not allow the doctrine of “qualified immunity” to be used as a defense by law enforcement and public officials resulting in personal liability. The elimination of the qualified immunity defense raises the serious question if law enforcement and government employees will feel compelled or be required to carry some form a liability insurance. The actual cost of such insurance will also be raised as being prohibited.

Retired New Mexico State Supreme Court Justice Richard Bosson, the Civil Rights Commission’s chairman, had this to say in a written statement:

“[The proposed law will] provide a legal vehicle for New Mexico citizens to fully enforce rights granted them by the New Mexico Constitution without importing artificial obstacles to the truth-seeking process such as qualified immunity.”

House Speaker Brian Egolf, D-Santa Fe, for his part said he supports the proposed Civil Rights Act and said he intends to push for its passage during the upcoming session and said:

“I think giving New Mexicans the ability to vindicate their constitutional rights in a New Mexico courtroom is of fundamental importance.”

Speaker Egolf also said he would strive to make sure public employees’ concerns about the proposed new law, including increased insurance rates, are addressed.

Links to news sources are here:

https://www.newsbreak.com/new-mexico/santa-fe/news/2102340921572/nm-civil-rights-act-recommended

https://www.abqjournal.com/1517914/nm-civil-rights-act-recommended.html

NEW MEXICO TORT CLAIMS ACT

Even though New Mexico does not have a “Civil Rights Act” allowing public officials and law enforcement to be sued for violating someone’s civil rights under the State Constitution, it does have a Tort Claims Act. For the none lawyer, “tort” under the law is loosely defined as a civil wrong that causes a person to suffer loss, harm or financial damages. The Tort Claims act first grants immunity from liability to a governmental entity and any public employee and then provides for waivers of that immunity for certain areas.

Section 41-4-4 of the Tort Claims Act provides in part:

“A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by [the New Mexico Tort Claims Act] . … Waiver of this immunity shall be limited to and governed by the provisions of [the Tort Claims Act] …

H. The duty to pay any settlement or any final judgment entered against a public employee as provided in this section shall continue after employment with the governmental entity has terminated if the occurrence for which liability has been imposed happened while the public employee was acting within the scope of his duty while in the employ of the governmental entity.”

WAIVERS OF IMMUNITY

There are specific waivers of immunity in the Tort claims Act. Immunity is waived and does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in:

The operation or maintenance of any motor vehicle, aircraft, watercraft. (41-1-5)

The operation or maintenance of any building, public park, machinery, equipment or furnishings (41-1-6)

The operation of airports. (41-1-7)

The operation of public utilities and services including gas, electricity, water; solid or liquid waste collection or disposal, heating and ground transportation. (41-1-8)

The operation of any hospital, infirmary, mental institution, clinic, dispensary, medical care home or like facilities. (41-1-9)

By public employees licensed by the state or permitted by law to provide health care services while acting within the scope of their duties of providing health care services. actions by licensed by the state or permitted by law to provide health care services (41-1-10)

During the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area. (41-1-11)

It is Section 41-4-12 of the Tort Claims Act that deals with liability of law enforcement officers:

“The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.”

Although immunity is waived under the tort claims act for damages caused law enforcement officers while acting within the scope of their duties, there still is the duty to defend and pay for the damages by the government entity.

COMMENTARY AND ANALYSIS

The proposal is to create state Civil Rights Act and in it abolish “qualified immunity” as a defense that would cover virtually all government employees, not just law enforcement. It is likely that if a New Mexico Civil Rights Act is enacted, the New Mexico Tort claims act will also have to be changed to some degree. It is also likely that government employees will be compelled to carry some form personal liability insurance, an expense that may not be at all affordable or reasonable.

It should come as no surprise that a plaintiff’s lawyers, such as Speaker of the House Brian Egolf, are in favor of enactment of a Civil Rights Act. At the absolute center of the debate is whether the State Of New Mexico should go out of its way to create a whole new cause of action for violation of civil rights under state laws and state constitutional rights and easing the burden of proof to recover damages in a court of law free of any “qualified immunity” defense. It likely that the state law would also need to mandate some form of “election of remedies” providing that a plaintiff alleging violation of civil rights must decide to either to proceed in state court or in federal court under the civil rights act commonly referred to as a 1984 cause of action.

Many argue that a New Mexico Civil Rights Act is needed to stop the “culture of aggression” or systemic racism and stop the excessive use of force or deadly force by law enforcement. When it comes to the Albuquerque Police Department (APD), the city has paid out upwards of $64 million dollars over the last 10 years for excessive use of force and deadly for cases and civil rights violations stemming from a “culture of aggression” found by the Department of Justice (DOJ). For the past 6 years, APD has been under a federal court consent decree that mandates 271 reforms that APD and the city are still struggling to implement under the watchful eye of a federal judge and a federal court appointed monitor.

There is no doubt public employee unions, including all law enforcement unions and local governments will make it known their likely opposition on the need for a Civil Rights Act, especially one that does not provide for qualified immunity or that provides for personal liability of government employees. Notwithstanding what the New Mexico legislature decides, it will have to recognize it is a very big decision that no doubt will be ultimately very costly to taxpayers and if the New Mexico Tort Claims Act goes far enough.

One argument being made is that the elimination of “qualified immunity” will change how police will do their jobs and stop the use of excessive use of force and deadly force by police. Law enforcement on the other had make the argument that police will be reluctant to do do their jobs and not be pro active for fear of being sued. It’s unlikely police will alter their actions given that actions of police are more “reactive” than “pro active” when it comes to “use of force”, “deadly force” and self defense. When it comes to police officer involved shootings and civil actions, it always gets back to the issue of training in constitutional policing practices or negligent supervision. APD after 6 years and spending millions is still struggling with training in constitutional law enforcement practices. Officer involve shooting still happen, despite training.

From a practical standpoint, it makes little or no sense to enact a Civil Rights Act that creates a new cause of action for violations of state constitutional rights by government employees, abolishing qualified immunity only to have a Tort Claims Act that mandates a defense and payment of judgments for damages. It appears with the enactment of a Civil Rights Act as proposed, damage to a plaintiff, the liability of a government employee and the taxpayer wind up in the exact same place as to who pays for the damages under the Tort Claims Act.

_________________

POSTSCRIPT

ABSOLUTE IMMUNITY AND QUALIFIED IMMUNITY EXPLAINED

Certain government officials, including the President, prosecutors, judges and similar officials have absolute immunity. This doctrine shields those individuals from criminal prosecution and lawsuits, as long as their actions in question were within the scope of their jobs. For all other federal officials, the Court also held that federal officials who are trying to qualify for absolute immunity have the burden to prove “that public policy requires an exemption of that scope.”

For government officials trying to qualify for absolute immunity, the Court established a 2-part test that the official must satisfy:

First, the official must show that his position’s responsibilities had such a sensitive function that it requires absolute immunity.

Second, the official must demonstrate that they were discharging the protected function of the position when performing the acts in question.

Qualified immunity is a type of legal immunity created by the United States Supreme court that shields government officials from being held personally liable for constitutional violations. In 1982, the United State Supreme Court in the landmark case of Harlow v. Fitzgerald, 457 U.S. 800 (1982), held that federal government officials are entitled to qualified immunity. The Court reasoned that “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”

Qualified immunity frequently appears in cases involving police officers. Qualified immunity protects a police officer from lawsuits alleging that the officer violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. The Qualified immunity doctrine balances two important interests. Those interests are the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.

When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case. Violations of constitutional rights would include the right to be free from excessive police force or unjustified deadly force for money damages under federal law so long as the officials did not violate “clearly established” law.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. The result is that courts must resolve qualified immunity issues as early in a case as possible. Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.

Links to news and research sources are here:

https://www.abqjournal.com/1482039/nm-could-jettison-qualified-immunity-for-police-government-employees.html

https://www.daily-times.com/story/news/local/2020/08/10/new-mexico-lawmakers-hear-issue-qualified-immunity-police-protesters/3340481001/

https://www.law.cornell.edu/wex/qualified_immunity#

https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform

https://law.justia.com/codes/new-mexico/2019/chapter-41/article-4/section-41-4-4/

As the result of the death George Floyd and many other African Americans in the custody of police, protests across the country have resulted in demands for police reforms focused on accountability and transparency in law enforcement. The demands for law enforcement accountability and transparency have included making a matter of public disclosure police personnel records documenting misconduct.

KEEPING SECRET POLICE MISCONDUCT

Steve Allen, the former director of public policy with the American Civil Liberties Union (ACLU) of New Mexico put it this way:

“I think we’ve seen across the country, and certainly here in New Mexico, that public trust around our police departments has eroded.”

New Mexico Department of Public Safety Secretary Tim Johnson had this to say:

“It is true that the relationship between law enforcement and the communities we serve right now is strained for obvious reasons.”

On June 4, following protests across the nation and New Mexico over the death of George Floyd, Governor Michelle Lujan Grisham created an Advisory Council for Racial Justice. At the same time, Lujan Grisham announced her support for legislative proposals for police reform including making police disciplinary history a matter of public record.

Under New Mexico State law, it is not illegal to release disciplinary records of police officers. However, police departments that choose to keep them private cite an exception to the state’s Inspection of Public Records Act (IPRA) that provides “letters or memorandums, which are matters of opinion in personnel files” are exempt from public inspection. In 1977, the New Mexico Supreme Court specifically held that “disciplinary action” and other “matters of opinion” can be withheld. The Supreme Court held that the legislature anticipated there could be documents concerning disciplinary action that “might have no foundation in fact.”

Currently, each law enforcement agency in New Mexico can interpret the state’s public records law differently. The Albuquerque Police Department (APD) consistently releases Internal Affairs Investigations and the discipline records of officers especially when civil lawsuits are filed or an officer is charged with a crime. Many other departments in the state simply resist requests and do not release the personnel records. What this means is that there are varying policies throughout the state law enforcement agency that are in a constant state of change when new management takes over.

Civil rights attorney Shannon Kennedy has taken the Department of Public Safety (DPS), which oversees New Mexico State Police, to court over police records. Kennedy prevailed in such a case this year against the DPS that went to the New Mexico Supreme Court. According to Kennedy:

“The Department of Public Safety, State Police, has been an entity that has been very spotty in terms of responses to public records requests. … Transparency should be the policy. … There’s no reason that, if someone signs up to protect and serve a community, that if they’re disciplined that somehow becomes a secret that they can keep.”

Interim Department of Public Safety Secretary Tim Johnson had this to say about state police public records requests:

“As an agency, we try to be as transparent as we possibly can. … I lean on our lawyers, DPS lawyers, for advice on this and I’m told we are following the policy and the law.”

A link to related news coverage is here:

https://www.krqe.com/news/investigations/should-new-mexico-make-police-disciplinary-records-public/

LIST OF POLICE OFFICERS WITH HISTORY OF DISHONESTY, USE OF FORCE AND BIASNESS TO BE MADE PUBLIC

In a letter dated October 14, 2020, Bernalillo County District Attorney Raul Torrez notified the Bernalillo County Sheriff’s Office (BCSO) and the Albuquerque Police Department (APD) that the Bernalillo County District Attorney’s Office is introducing a new disclosure policy based on the 1974 United States Supreme Court ruling Giglio v. United States, 405 U.S. 150 (1972). The Supreme Court Ruling involves the prosecution’s obligations in regards to criminal discovery and disclosure which, in part, requires information impacting the reliability of a witness’ testimony to be disclosed.

The Giglio ruling requires the prosecuting agency, in this case the Bernalillo County District Attorney’s Office, to disclose to a criminal defendant all information or material that may be used to impeach the credibility of the prosecution witnesses. It includes police officers and sheriff officers who are witnesses for the prosecution.

The Supreme Court ruling in the Giglio case in nothing new and has been required since 1972, but the DA’s office formalizing the process is new. According to the DA’s office, it is being done now because of the dramatic “recent slow-down” in the criminal courts giving the time to develop a training protocol and the infrastructure to launch the new policy.

According to District Attorney Raul Torrez, the new system will bring transparency to the criminal justice system and hold prosecutors and law enforcement accountable. Torrez told both APD and BCSO in his October 14 letter:

“My office joins a growing number of prosecutor offices around the nation that are embracing reform and police accountability by formalizing this Giglio inquiry process. Historically, requests for Giglio material have been done on a case-by-case basis and the results of earlier Giglio inquiries have not been searchable. Beginning in November my office will start implementing a formal and searchable system.”

The letter goes on to say that law enforcement officers listed as witnesses in an open case will receive a questionnaire where information like past misconduct of bias, use of force or truthfulness, or criminal charges must be disclosed. The findings will then be placed into an officer’s personnel file.

A link to the October 14 letter from the District Attorney is here:

https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed

GIGLIO MATERIAL THAT WILL BE ASKED FOR DISCLOSURE

In the October 14, 2020 letter, District Attorney Torrez outlined the information that will be asked in the questionnaire to law enforcement:

“Examples of Giglio information include but are not limited to:

Our office will disclose Giglio material will disclose to defense counsel, file a notice of disclosure, and will log the disclosure on a Giglio list.”

A link to the October 14 letter from the District Attorney is here:

https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed

In a statement released, the Bernalillo County DA’s Office had this to say:

“The District Attorney is committed to using every available tool to improve transparency, accountability and integrity within our criminal justice system. Giglio disclosures are a standard part of federal prosecution but they are not often used or well understood inside our state system. We believe they are an important component of our larger reform efforts and an essential step in ensuring that the system is untainted by bias, misconduct or dishonesty. We also believe it will have no impact on the vast majority of police officers who have no sustained findings on their record.”

According to a spokesperson for the DA’s Office:

“The District Attorney’s Office will provide public access any time a formal Giglio notice is filed in a pending case but we are currently prohibited from sharing specific, confidential information that may form the basis of our Giglio determination.”

The link to the news source is here:

https://www.krqe.com/news/politics-government/bernalillo-county-district-attorney-rolls-out-new-system-to-hold-officers-accountable/

LIST TO BE MADE PUBLIC

On Friday, November 6, the Bernalillo County District Attorney’s Office announced it intends to create a publicly available list of law enforcement officers who have disclosures reflecting a history of dishonesty, use of force, bias or other issues that might make them unfit to aid in a prosecution. The DA’s Office said it hopes to begin publishing on its website early next year,

The list will consist of the names of officers who have Giglio disclosures that prosecutors are required to provide to defense attorneys if their law enforcement witnesses are unreliable or biased. The new list is being touted as the first public database of its kind in the country.

District Attorney Raúl Torrez stressed the practice of disclosing the material itself is not new and emphasized it is based on the US Supreme Court case Giglio v. United States. Both the Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association routinely ask for Giglio disclosures at the beginning of every case and it is done on a case by case basis.

Not at all surprising, the public searchable database is being well received by the New Mexico Public Defender’s Office and the New Mexico Criminal Defense Lawyers Association. Jennifer Burrill, the vice president of the New Mexico Criminal Defense Lawyers Association, had this to say:

“[This Giglio disclosure are usually done] on a case-by-case basis … But to have a public searchable database is really a remarkable thing, and will help quite a bit with restoring trust between community members and police officers and hold everyone accountable. … When officers get in trouble a lot of times they’re allowed to resign and they move to another agency. … So with a transparent database other departments can look and find out whether that person has issues that are not welcomed at their department and end the practice of officers with misconduct issues being passed around from department to department.”

Bernalillo County District Attorney Torrez for his part had this to say:

“My sense is that the overwhelming majority of officers are not going to have cause for concern and are not going to have anything that would result in a Giglio notice from our office. I could foresee a situation where a department makes a personnel call based on sustained findings and after their due process is undertaken in the department, they reinstate this person. … We may make a judgment that this person will never testify again, and that hopefully will inform whether or not that law enforcement leader will keep that officer or that deputy in a position that could undermine future investigations.”

“Oftentimes police chiefs have no idea the person … has this credibility issue. … Frankly if they do have that information it might impact the willingness of those leaders to hire the officer and if they do hire the officer what type of responsibilities, they would give them. That is another really important reason to make this available.

A link to a related story is here:

https://www.abqjournal.com/1515583/da-plans-list-covering-officer-misconduct.html

APD AND BCSO RESPOND

A spokesman for APD said “we support transparency and the DA’s efforts to protect the integrity of prosecutions based on arrests by our officers. Chief (Harold) Medina is working with the DA to determine how to best accomplish this goal.”

The Bernalillo County Sheriff’s Office said the letter is a “sensitive matter” and that it is writing a letter of response to the DA’s Office. The BCSO did say it had concerns over the confidentiality and constitutionality of the changes.

CONFIDENTIALITY CONCERNS RAISED

The announcement of the new disclosure system was quickly questioned by APD Police Union President Shaun Willoughby and he had this to say:

“There’s a lot more questions than I have answers and I think that’s fundamentally my number one concern. We understand the DA has the authority to get this information, it’s almost required of his office to get this information by law. We just feel that it’s important to sit down and have an open dialogue with decision-makers before they roll it out so that our officers have the information to be successful. … I’m just disappointed with how the DA approached this. I’m disappointed that he didn’t bring stakeholders to the table.”

Willoughby said he is concerned about confidentiality and he is demanding to know more about the questions in the questionnaires and he wants more communication. No at all surprising, he says he would like more information on what’s coming so he can guide officers on how to protect themselves and their rights.

UNITED STATES SUPREME COURT RULING EXPLAINED

There are two landmark United States Supreme Court case that are at issue and they are Brady v. Maryland, 373 US 83, decided in 1963 and Giglio v. United States, 405 U.S. 150, decided in 1972.

Brady v. Maryland, 373 U.S. 83, (1965) is the 1965 case that established that the prosecution must turn over all evidence that might exonerate the defendant and aide in the defense. The prosecution failed to do so for Brady, and he was convicted and the conviction was overturned. The US Supreme Court found in Brady v. Maryland that due process is violated when the prosecution “withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.” This is the case even if the failure to disclose was a matter of negligence and not intent.

Giglio v. United States, 405 U.S. 150, is a 1972 Supreme Court case involving the prosecution’s obligations in regards to criminal discovery and disclosure. In Giglio, the Court went further and held that “all impeachment evidence falls under” the Brady holding. What this means is that the prosecution is obligated to disclose all information or material that may be used to impeach the credibility of prosecution witnesses, including police officers who are called as witnesses for the prosecution.

The consequences of Brady and Giglio are simply stated as police officers must be especially careful to avoid any and all actions or statements that could compromise their credibility. This could easily include racial slurs and expressions of racial prejudice. A good example involves the case of OJ Simpson when investigating homicide officer Mark Furhman was impeached on the witness stand for his history of racial slurs that destroyed his credibility on the stand.

One legal authority succinctly put it this way:

“[Under the Supreme Court rulings] the prosecution is legally required to disclose any misconduct or compromising information regarding the witness to the defense attorney, who will then use it to impeach the law enforcement witness on the stand. The end result can be the loss of what would have been a strong case.”

COMMON PROBLEM

According to a defense law firm publication:

“A common problem across police departments and other law enforcement agencies is a failure to consistently provide local prosecutor’s with credibility information. Often, internal politics end up determining who is reported to the prosecutor’s office as unreliable and who is not. In response, some departments have tried to institute strict truthfulness policies and terminate officers who violate them. Others will attempt to place the officer in an administrative assignment.

• If the witness is aware of any negative allegations or opinions about the witness’ reputation or character that have been in media stories or otherwise publicly aired.”

The link to the quoted legal authority is here:

https://ggrmlawfirm.com/blog/in-the-news/what-police-officers-need-to-know-about-giglio-v-united-states/

COMMENTARY AND ANALYSIS

It should come as absolutely no surprise to anyone that Bernalillo County District Attorney Raul Torrez is taking steps to initiate a formal process to deal with the prosecution’s obligation to disclose information impacting the reliability of a law enforcement witness’ testimony. Torrez is a former Assistant United States Attorney for the District of New Mexico. He is familiar with the Department of Justice policies and procedures for disclosing information when it comes to federal law enforcement authorities.

Ever since taking office 4 years ago, Torrez has attempted to change policies and practices of the Bernalillo County District Attorney’s Office to model them after the United States Attorney’s Office. Best examples of this are his advocating for custodial hearings, demands for grand jury proceedings, his resistance to preliminary hearings and his reliance and referrals to the United States Attorney’s Office to prosecute violent felons.

Truth be known, all state prosecutors should already be fully aware of their burden and duties imposed upon them by both Supreme Court cases of Brady and Giglio. It’s taught in criminal and constitutional law school classes. If a New Mexico prosecutor is not aware of the requirements, they should be suspended from the practice of law until they learn it. Usually, the problem with law enforcement credibility is the withholding of information by the police officer themselves. Hence, Torrez’s wants to formalize the process.

The APD union president is seriously mistaken to even suggest or even remotely think that Bernalillo County District Attorney Torrez has as any obligation to the union, APD or BCSO for an “open dialogue” on the issue. Police Union President Willoughby can be “disappointed with how the DA approached this” all he wants, but DA Torrez has absolutely no obligation to allow “stakeholders to the table” whose obvious agenda would be to withhold any and all information they feel is inappropriate. That is strictly reserved to the prosecutor and ultimately the courts.

DIFFICULT BALANCING ACT

The overwhelming majority of police officers are honest and hard working with nothing to hide. It’s the very small number of police officer’s that are problematic that can bring disgrace and bring dishonor upon the department. Police officers with a history of abuse of force, dishonesty or other misconduct should not be able to count on anonymity and avoid proving they have changed. It’s what accountability of a public official is all about.

There is a big difference between having the legal authority to ask for and getting the information for legitimate use in a courtroom as opposed to just releasing personnel information for all the public to see and to be used for any reason. There are legitimate concerns opening up an officer’s personnel file that could harm of police officer’s reputation over frivolous infractions or be used to unfairly to discredit officers who have to be trusted to testify as witnesses in court.

Often times, there is a legitimate need to keep confidential matters in a progressive disciplinary process to ensure or preserve the employee-employer relationship. Another concern is with so much pressure and scrutiny in this day and age no one will want to be a police officer.

CONCLUSION

There are way too many law enforcement agencies in the state that handle releasing disciplinary records of law enforcement officers differently. Policies are always subject to change with change in department management, especially within Sherriff Departments where there is an election every 4 years. Consequently, the New Mexico legislature should take up the issue in the 2021 legislature to further clarify as to what extent personnel records of police can be released and make consistent policy throughout the state.

On November 3, former Vice President Joe Biden was elected the 46 President of the United States. Biden won the popular vote securing 51.1% of the popular vote (79,693,395 votes) to President Donald Trump’s 47.2% of the popular vote (73,708,217). President Elect Biden also won the electoral college, securing 306 to 232 electoral votes. Trump won the electoral college vote by the exact count over Hillary Clinton and declared he had won by a landslide even though Clinton had won the popular vote by over 3 million votes.

On Nov. 19, 2020, during a news conference at Republican National Committee headquarters in Washington, with the smell of sweat blackened by his cheap hair dye running down his face, an unhinged former New York City Mayor Rudy Giuliani had this to say:

“I know crimes, I can smell them. You don’t have to smell this one, I can prove it to you, 18 different ways. I can prove to you that he won, Pennsylvania, by 300,000 votes. I can prove to you that he won Michigan, probably 50,000 votes. …

“And I’ve often said, I guess sarcastically but it’s true. … The only surprise I would have found in this is that Philadelphia hadn’t cheated in this election. Because for the last 60 years, they’ve cheated in just about every single election. You could say the same thing about Detroit.”

During the November 19 press conference, Giuliani promised major suits in Georgia and Arizona and said the legal team is looking at New Mexico as well. Giuliani also promised “hundreds” of affidavits but said he could not show them to reporters. Notwithstanding the new lawsuits announced, Republicans announced that they were dropping federal election lawsuits in Michigan, Georgia, Pennsylvania and Wisconsin.

Since the November 3 election, Trump on a daily basis loudly dismisses the results the election to deny President Elect Joe Biden’s legitimacy. The problem is that Trump’s followers continue to drink the propaganda Kool Aide and want to disenfranchise all who voted by absentee. Trump himself is attempting to steal the election from President Elect Joe Biden with his daily false fraud claims and frivolous lawsuits in all the battleground states Trump is acting like a wounded animal with his refusal to engage in a normal presidential transition and ordering lawsuits filed in the battleground states.

REPUBLICAN PARTY SEEKS TO DISCREDIT ELECTION OF PRESIDENT ELECT BIDEN

Trump’s Republican party is supporting his efforts to discredit the election with the likes of Republican Senators Mitch Mc Connell, Lindsay Graham and Rudy Giuliani supporting his legal challenges. McConnell, the Senate majority leader said that “President Trump is 100% within his rights to look into allegations of irregularities and weigh his legal options,” while severely criticizing Democrats for expecting Trump to “accept preliminary election results”. Trump may have the right to legally challenge election results, but he does not have the right to press on in a court of law without absolutely no proof and just lying that the election was rigged.

Trump still has a strangle hold on the Republican party and it will play into his thirst for power after he leaves office. A Reuters/Ipsos poll found that 52% of Republicans believe Trump “rightfully won” the U.S. election and that the election was stolen from him by widespread voter fraud. The poll found that just 26 percent of Republicans said they thought Biden’s win was “legitimate.”

A link to the poll is here:

https://www.reuters.com/article/us-usa-election-poll/half-of-republicans-say-biden-won-because-of-a-rigged-election-reuters-ipsos-poll-idUSKBN27Y1AJ

The opinion poll taken November 13-17 shows that Trump’s open defiance of Biden’s victory in both the popular vote and Electoral College appears to be affecting the public’s confidence in American democracy, especially among Republicans. Altogether, 73% of those polled agreed that Biden won the election while 5% thought Trump won.

When asked specifically whether Biden had “rightfully won,” Republicans showed they were suspicious about how Biden’s victory was obtained. 52% of Republicans said that Trump “rightfully won,” while only 29% said that Biden had rightfully won.

What is alarming is that when Republicans were asked they did not feel that Biden “rightfully won” they said that state vote counters had tipped the result toward Biden. 68% of Republicans said they were concerned that the election was “rigged,” while only 16% of Democrats and one-third of independents were similarly worried.

Altogether, 55% of adults polled said they believed the November 3 presidential election was “legitimate and accurate. That percentage is down 7 points from a similar poll that ran shortly after the 2016 election. The 28% who said they thought the election was “the result of illegal voting or election rigging” is up 12 points from four years ago.

The Reuters/Ipsos poll showed that more Americans appear to be more suspicious about the U.S. election process than they were four years ago. The poll showed Republicans were much more likely to be suspicious of Trump’s loss this year than Democrats were when Hillary Clinton lost four years ago. In 2016, 52% of Democrats said Hillary Clinton’s loss to Trump was “legitimate and accurate,” even as reports emerged of Russian attempts to influence the outcome. This year, only 26% of Republicans said they thought Trump’s loss was similarly legitimate.

The Reuters/Ipsos poll was conducted online, in English, throughout the United States. It gathered responses from 1,346 respondents, including 598 Democrats and 496 Republicans, and has a credibility interval, a measure of precision, of 5 percentage points.

NOT THE LAST OF THE FASCIST

Trump is already making it known that he wants to run again in 2024 and telling his supporters he wants to keep his options open. As he has done for the last 4 years, he promotes hostility and mistrust amongst his supporters denouncing as “rigged” one of the most secured elections in American history. Lawsuits that are being filed by Trump to challenge the elections in individual state are being dismissed within days of being filed for lack of any proof.

Whether or not Trump actually runs in 2024 is not what is dangerous. It is his supporters that are the most dangerous and what damage he does over the next 4 years to undermine President Joe Biden.

Princeton historian Sean Wilentz has put it this way:

“[Imagine]a counter-government, administered by tweets, propped up by Fox News or whatever alternative outlet Trump might construct for himself — a kind of Trumpian government-in-exile … telling his tens of millions of supporters as well as his congressional backers to reject Biden’s presidency … Trump would be trying to establish a center of power distinct from and antagonistic to the legitimately elected national government — not formally a separate government like the Confederacy but a virtual one, operating not just out in the country but inside the government, above all in Congress. “Two things could stop Trump: either his legal troubles become so severe that he can’t continue, or the Republican Party decides he’s hurting more than helping. … I would not bet on either one of these coming to pass.”

CONCLUSION

The swearing in of President Elect Joe Biden as the 46 President of the United States can not come soon enough. Until then, former New York City Mayor Rudy Giuliani is the smell and look of a dying and rotting Trump Presidency that hopefully will not come back from the dead in 2024. One thing is for certain, the control of the United States Senate is still at stake with the two Georgia US Senate seats to be decided in a January runoff. Democrats need to take control of the Senate and bury the obstruction tactics that is the Republican party and embodied in Senate Republican Majority Leader Mitch McConnel.

As farfetched as the headline sounds, the city and state could, within just a matter of a few years, become an aerospace space industry heavy weight.

On November 19, Governor Michelle Lujan Grisham announced in a prepared statement that Albuquerque has made the short list of cities nationwide that the U.S. Air Force is considering to permanently locate the new U.S. Space Command. Albuquerque was one of 31 cities that the U.S. Department of Defense (DOD) said last summer it would consider in an initial round of screening for potential locations.

Albuquerque’s Kirkland Air Force base is now competing against 5 Air Force bases in Colorado, Florida, Nebraska, Alabama and Texas. The other finalists are:

Offutt AFB (NE), previously housed the strategic Air Force Command headquarters.

Patrick AFB (FL) at Cape Canaveral in Florida, which has 50 years of infrastructure and space-related history.

Peterson AFB (CO), the Space Command’s current temporary headquarters.

Port San Antonio (TX) which at one time housed three Air Force bases in and around it.

Redstone Army Airfield (AL) which also has extensive military infrastructure and a strong congressional delegation to lobby.

The new Space Command where ever it is located would bring more than 1,000 new, high paying jobs. It will also bring billions in federal and military spending and contracts for local companies. Albuquerque’s chances to secure the Space Command are considered very good given New Mexico’s extensive military and space-related assets.

Governor Michelle Lujan Grisham had this to say in her prepared statement about the city making the cut:

“We are excited to hear that Kirtland Air Force Base in Albuquerque has been selected as one of the final candidates for the new Space Command headquarters. … Our state’s strong and growing role in space exploration, space science and national security related space matters puts it in a strong position to become the home of the new Space Command. We look forward to working with the Department of Defense in the weeks and months ahead.”

The US Department of Defense in an announcement said will begin virtual and in person site surveys in the coming weeks. The Defense Department said the goal is to announce in January a list of up to three alternative sites.

Links to related news sources are here:

https://www.kob.com/albuquerque-news/albuquerque-among-finalists-for-new-us-space-command/5929600/?cat=500

https://www.abqjournal.com/1519547/nm-makes-the-space-command-short-list.html

LOOKING FOR A PERMANENT HEADQUARTERS

In December, 2019, President Donald Trump authorized the new United States Space Force. The Space Command is separate from the Space Force. The Space Force is now the 6th branch of the United States military. The Department of Defense established the Space Command in August 2019. It is the military’s 11th unified combatant command and is temporarily located at Peterson Air Force Base in Colorado Springs.

Last May, the U.S. Air Force officially launched a competition to choose a new, permanent command headquarters for the United Stated Space Command. In June, Gov. Michelle Lujan Grisham and Mayor Tim Keller jointly submitted a letter proposing Albuquerque as the new location for the headquarters.

On August 4, the U.S. Department of Defense (DOD) announced Albuquerque was one of 31 locations nationwide that the DOD was considering to set up the new headquarters. The city was considered as a potential candidate for the headquarters in the formal evaluation process.

When the announcement was made that the City was on the list of 31 locations, Lujan Grisham said in a prepared statement:

“New Mexico’s defense and science installations as well as our emphasis on a growing aerospace sector should give us an edge for this potential economic driver. … I am excited that Albuquerque and our state are moving forward in this process.”

THE CITY AND THE STATE A NATURAL FOR HEADQUARTERS

According to news sources, the Space Command is a unified “combatant command that coordinates all branches of the military when conducting operations in, from or through space.” The command will oversee all military space operations, whether that’s deterring aggression or defeating adversaries in an attack.

New Mexico has numerous space-related defense entities housed at Kirtland Air Force Base that make the city a natural for the headquarters. Those entities include the Air Force Research Laboratory’s Space Vehicles Directorate, which is currently leading much of the military’s research and development efforts to modernize space-related defense systems. The Starfire Optical Range at Kirtland also offers comprehensive ground-based monitoring of space assets and activity, making it a center of excellence for space domain awareness.

New Mexico has other major assets that make it a natural for the headquarters, including the space-related defense entities that operate at Kirtland and extensive military infrastructure in Albuquerque and elsewhere in the state. That includes White Sands Missile Range in southern New Mexico, which offers missile defense testing and inland launch capabilities. Sandia National Laboratories and Los Alamos National Laboratory offer high-tech support capabilities, and Kirtland itself offers extensive base infrastructure to accommodate Space Command personnel and their families.

https://www.abqjournal.com/1486449/abq-in-the-running-for-space-command.html

NEW MEXICO’S CONGRESSIONAL DELEGATION

New Mexico’s entire congressional delegation is lobbying to land the Space Command. In a prepared statement, US Senator Martin Heinrich had this to say:

“New Mexico has a long history of leadership in both space exploration and national defense, dating back to the earliest days of the U.S. space program … New Mexico makes perfect sense right now as the best location for the new U.S. Space Command headquarters.”

THE ORION GROUP AEROSPACE COMPANY DEVELOPMENT

On Thursday, November 12, the City of Albuquerque Environmental Planning Commission approved the new site plan for the “Orion Center.” It is an aerospace and technology facility that will be built on the 122-acre plot of land located between Kirtland Air Force Base and Albuquerque International Sunport. “Group Orion”, the developer, is a subsidiary of Theia Group Inc., a Washington D.C. based, privately held aerospace company. The Theia Group is attempting to develop a network of satellites to digitally image and collect data on the physical world, providing solutions in areas from logistics to biology.

The mass area acreage was originally where the North-South airport runway was located. The land has now been designated for industrial development by the city. In 2017 after the runway was removed, the City named the acreage as the “Aviation Center for Excellence”. The city began to offer the vacant land area for commercial and office developers.

According to city officials, the city will seek to secure permission from the Federal Aviation Administration (FAA) and complete a lease agreement with “The Group Orion” for the property. Group Orion is seeking to build a “campus” like facility that will include a 2 million square foot manufacturing center, an eight-story office and laboratory building, a new food hall and an extended-stay hotel. The campus will be named the Orion Center. Other long-term developments and expansion is envisioned. The campus as originally envisioned is to house 1,000 jobs once it opens. The plans submitted to the City on behalf of Group Orion includes a 2,500 jobs expansion plan.

The campus will have a number of separate buildings, spread out on both sides of Girard Boulevard, south of Gibson Boulevard. The square footage size of the campus is estimated to be 4.1 million square feet spread out across a total of 6 buildings to be built. The focal point of the campus will be an assembly building consisting of a 2 million square-foot, single-story building that will serve as the company’s main manufacturing and testing center.

Plans for the campus also include an 8-story building that will include laboratories, offices and additional assembly space. Plans on the western side of the campus call for an “extended stay” hotel to house new hires and other guests, a food hall for employees and an 8 story parking garage. A skybridge over Girard to help employees cross the street safely is also being proposed.

Group Orion has hired local engineers and has paid the city $125,000 as a retainer to hold the land. If the Federal Aviation Administration (FAA) approves the Center, then construction of the Orion Center could start in spring 2021 with the projected opening of the campus being in 2023.

COMMENTARY AND ANALYSIS

According to the city’s Economic Development Department, the global space economy is projected to be worth $3 trillion by 2045. With the announcements that Albuquerque is one of 5 finalists for the new Department of Defense U.S. Space Command and that the Orion Group aerospace company is planning to establish a major manufacturing center near the Albuquerque International Sunport, the city and state’s emerging national standing as a space industry powerhouse is clearly in the stars. (Please excuse the pun.)

Come January 20, President Joe Biden will become the next President of the United States. With any luck, Democrats will also control the United States Senate if Georgia elects two Democrat United States Senators in the December run off. With that said, the New Mexico congressional delegation will have its work cut out for it to make sure the new Space Command headquarters is located in Albuquerque.

TO INFINITY AND BEYOND!

A link to a related blog article is here:

2020 “Orion Center” Type Of Development Foreseen In 2013 “Energize Alb” Plan; PATHETIC: City Set Aside Of $5.8 Million For Economic Development Out Of $1.1 Billion City Budget; Mayor Keller Relies On Luck For Economic Development

On November 1, it was reported that the Federal Bureau of Investigation (FBI) issued its annual “Crime in the United States Report” for 2019. The FBI collects crime data from law enforcement agencies across the country using a uniform data collection process.

Effective January 2021, the FBI is requiring law enforcement agencies to change their crime data collection from the Summary Reporting System (SRS) to the National Incident Based Reporting System (NIBRS). According to the Department of Public Safety several jurisdictions in New Mexico, including Albuquerque, Aztec, Bloomfield, Hobbs, Las Cruces and Sunland Park police departments and Bernalillo, Doña Ana and San Juan County sheriff’s offices, have gone from SRS to NIBRS system.

Summary Reporting System (SRS) broke violent crime into four categories and property crime into four categories. SRS index crimes are recorded in a hierarchical fashion. Only the most serious crime is counted whenever multiple offenses are committed in a single incident. Given this “hierarchy rule,” and the fact that many crimes, especially less serious ones, go unreported, the crime index necessarily under-represents the true volume of crimes committed. Nevertheless, the index is a useful indicator of the volume and types of crimes reported to police.

The National Incident Based Reporting System (NIBRS) is an incident-based reporting system for crimes known to the police. For each crime incident coming to the attention of law enforcement, a variety of data are collected about the incident. These data include the nature and types of specific offenses in the incident, characteristics of the victim(s) and offender(s), types and value of property stolen and recovered, and characteristics of persons arrested in connection with a crime incident. Incident-based data provide an extremely large amount of information about crime. The information is also organized in complex ways, reflecting the many different aspects of a crime incident.

The NIBRS format divides incidents into “crimes against persons,” “crimes against property” and “crimes against society” and includes a total of 32 crimes, some of which are further divided into even more specific categories.

STATE AMD CITY CRIME STATISTICS

The good news is that for the first time in several years, both violent crime and property crime appeared to dip in New Mexico. The bad news is that crime rates in New Mexico remain much higher than the national average. The data is also misleading because Albuquerque’s property crime data is not included because the Albuquerque Police Department (APD) overreported burglaries. Also not included in the 2019 report is data from Bernalillo County, Doña Ana County and 8 other counties and a few other cities are not included in the 2019 FBI report.

According to APD spokesman Gilbert Gallegos, the problem with APD over reporting burglaries was a result a data compilation change regarding apartments and storage sheds. APD reported more than 80 burglaries, accounting for break-ins at each storage unit across 3 facilities. It should have counted each facility that was broken into, not each unit. APD has since corrected the data but it was not included in the data Albuquerque submitted to the FBI for its annual report.

It is unknown whether crime actually decreased from 2018 to 2019 because some jurisdictions were not reported or fully reported according to a spokesman for the New Mexico Department of Public Safety.

NATIONAL CRIME RATE DECREASE

Violent crime and property crime rates decreased across the country last year. The national violent crime rate decreased 1% from 2018 to 2019 and the national property crime rate decreased 4.5%.

The national crime rates are much lower than New Mexico’s. The estimated violent crime rate in the United States is 366.7 offenses per 100,000 inhabitants, less than half the New Mexico rate of violent crime.

Nationwide, the estimated property crime rate is 2,109.9 offenses per 100,000 inhabitants, two-thirds of New Mexico’s rate.

It was in 2014 that both the violent crime and property crime rates began to increase in New Mexico in 2014. From 2014 to 2018 violent crime rates spiked 43%. From 2014 to 2017, property crime increased 11% then began to fall.

According to the FBI, violent crime began decreasing nationally three years before 2019, and property crime began decreasing 17 years prior.
https://www.abqjournal.com/1513348/new-mexico-has-apparent-dip-in-violent-crime.html

STATE VIOLENT CRIME SLIGHTLY DOWN

Major highlights in the FBI’s Crime in the United States Report include the following:
Across New Mexico, the violent crime rate was 2.7% lower than last year. There were 832.2 crimes per 100,000 in 2019 compared to 856.6 crimes per 100,000 in 2018.

Property crime rate was 8.9% lower with 3112.7 crimes per 100,000 in 2019 compared with 3,419.7 crimes per 100,000 in 2018.

In 2019, 17,450 violent crimes were reported throughout New Mexico including murder, rape, robbery and assault.

In 2019, 65,269 property crimes were reported, including burglary, larceny and motor vehicle theft.

According to the FBI annual report, although fewer violent crimes were reported in New Mexico in 2019 than the year before, more murder and non-negligent manslaughters were reported. Statewide, there were 14 more murders in 2019 than in 2018. Albuquerque reported 15 more murders in 2019 than in the previous year. In 2019, the city had a record high of 84 cases of murder or non-negligent manslaughter.

CITY’S 2020 MID-YEAR CRIME RATES REFLECT SMALL DECLINE

On Monday, September 21, the Albuquerque Police Department (APD) released the city’s crime statistics using the National Incident-Based Reporting System (NIBRS). It is the new system the FBI will require of all police departments use in their annual reports starting in 2021. According to APD, this is the third year APD has used NIBRS and for that reason the city cannot compare pre-2018 crime statistics to 2018 statistics and later.
According to the statistics release, crime is down by 5% across all categories in the first six months of 2020 as compared with the first six months of 2019. The good news is APD reported that crime has decreased 15% since 2018. The bad news is that in some cases, the improvements this year were minuscule.

The NIBRS format divides incidents into “crimes against persons,” “crimes against property” and “crimes against society” and includes a total of 32 crimes, some of which are further divided into even more specific categories.

CRIMES AGAINST PERSONS: Under NIBRS, all violent crime combined is called “Crimes Against Persons”. The crimes include murder, deadly weapons assault and injury and rape. The decreases in “violent crime” from 2019 to 2020 was a decrease by only 21 crimes or a 0.28%. Over a two year, it decreased 4%. According to the FBI statistics released, there were 7,362 crimes against persons reported in the first six months of 2020 and there were 152 more in the second quarter than in the first.

CRIMES AGAINST PROPERTY: Under NIBRS, “Crimes Against Property”, which includes arson, burglary, motor vehicle theft, larceny, robbery, and more, have decreased 6% from 2019 to 2020, but decreased by 19% since 2018. There were 24,052 crimes against property reported in the first half of 2020, with about 2,000 more in the first quarter than in the second.

CRIMES AGAINST SOCIETY: Under NIBRS, “Crimes Against Society” include animal cruelty, drug offenses, prostitution, weapon law violations and more. Crimes against society have decreased 8% from 2019 to 2020, and 12% from 2018 to 2020. There were a total of 1,644 crimes against society reported in the first half of 2020, with 130 more in the first quarter than in the second.

According to APD Spokesman Gilbert Gallegos:

“Rape and robbery were down, but aggravated assault was up slightly. … The one difference is Albuquerque’s homicide rate was down while most major cities [reported]increases in homicides. However, we have since seen an increase in homicides in the third quarter.”

2020 RAW DATA

Following is the raw data gleaned from the 2020 mid-year crime statistics:

2020 NIBRS MIDYEAR CRIMES BY CATEGORY

Crimes Against Property: 24,052
Crimes Against Persons: 7,362
Crimes Against Society: 1,644

2020 NIBRS “CRIMES AGAINST PROPERTY”

1st Quarter: 13,035
2nd Quarter: 11, 007
Mid-Year Albuquerque Police Department: 24,052

2020 NIBRS “CRIMES AGAINST PERSON”

1st Quarter: 3,605
2nd Quarter: 3,57
Mid-Year Albuquerque Police Department: 7,362

2020 NIBRS “CRIMES AGAINST SOCIETY”

1st Quarter: 887
2nd Quarter: 757
Mid-Year Albuquerque Police Department: 1,644

The link to Albuquerque’s mid-year crime statistics report is here:

https://www.cabq.gov/police/documents/2020midyearcrimestats_new.pdf

COMMENTARY AND ANALYSIS

New Mexico and Albuquerque residents can take very small comfort from the released statistics that reveal that overall crime in the state and the city are down slightly The pandemic certainly is a contributing reason for lower property crime rates and many other crimes. The slight reduction in crime can be easily attributed the pandemic that hit the state and the city hard in February resulting in quarantine, major event cancellations not to mention the closure of thousands of businesses closed for several months. In others words, people being home, malls and businesses being closed means opportunities for criminals were reduced, businesses could not be robbed or have shoplifters, homes could not be robbed and many cars were parked in garages reducing auto thefts.

The City of Albuquerque’s Internal Audit Department undertook an audit to determine whether the Albuquerque Police Department (APD) has a framework in place to effectively administer, manage and monitor the department’s overtime. On October 26, the Internal Audit Department released the performance audit.
According to the audits “Executive Summary”:

“In a sample that included 56 weeks of officer time tested, the audit identified 64 instances of overpayments totaling at least $4,545, resulting from officers being paid based on their scheduled hours, instead of the actual hours worked. In these instances, the hours reported by the officer to Computer Aided Dispatch (CAD) were at least 30 minutes less than the hours the officer was scheduled and ultimately paid for.

Lastly, the audit found an isolated instance where one APD employee inappropriately utilized the system login credentials of their supervisor, to approve their own time, which included overtime payments totaling $8,830 in fiscal year 2020.”

The link to the full audit report is here:

https://www.cabq.gov/audit/documents/apd-ot-audit-report-21-102-final-executed.pdf/view

APD also said when officers are “on-call” they are not logged onto the CAD system and then called back to work. The audit found several instances of employees being paid based on their scheduled hours and not those hours they actually worked.

The Internal Audit report recommended officers be asked to pay back their wages if they were overpaid. It also recommended regular spot checks to see if officers are really working the hours they are reporting.

APD concurred with the recommendation of repayment if necessary. However, an APD spokeswoman said she was not aware of anyone being asked to repay anything.

Salaries account for upwards of 78% of APD’s annual budget of $211 million. According to the audit report:

“Overtime related costs constituted a large portion of total APD salaries paid for … the fiscal year 2019 … APD paid $17.9 million and in [2020] $18.3 million related overtime costs.”

Notwithstanding the excessive overtime paid, the Internal Audit Department made no accusation of fraud. According to an APD spokesperson, working 38 hours of overtime a week is not always against policy.

OTHER FINDINGS

The release audit found that 4 APD Officers claimed over 2,000 hours of paid overtime, paid at the rate of time and a half, during the fiscal year of July 1, 2019 and ending June 30, 2020. The names of the 4 police officers were not released by APD.

The overtime paid average was 38 hours of overtime each 40-hour work week or 78 hours a week claimed in hours worked. During the 2018-2019 fiscal year, 2 other police officers also exceeded 2,000 hours of paid overtime. The amount paid in overtime to each of the 4 was over $100,000 for more than a total $400,000 paid.

EMPLOYEE USING SUPERVISORS CREDENTIALS

The released audit reported that Paulette Diaz, the assistant to former APD Chief Michael Geier, used the credentials of former Chief of Staff John Ross, her supervisor, to approve her own overtime hours. She received 282 hours of overtime and was paid $8,830 in overtime over a 7-month period. An internal affairs investigation has been opened into Diaz’s overtime.

Diaz and Ross were embroiled in controversy when Diaz wrote a memo to former APD Chief Michael Geier outlining multiple allegations against Chief of Staff Ross, including that he improperly purchased electronics for his own use. An internal affairs investigation later found those allegations to be unsubstantiated.

Geier, Ross and Diaz left APD within weeks after the controversy.

RECOMMENDATIONS MADE

The Internal Audit Department made 4 specific recommendations on ways APD could improve or correct and reduce the amount of overtime. The recommendations are:

1. Officers who were overpaid be asked to make repayments if they were overpaid. APD concurred with the recommendation of repayment if necessary, but no repayment requests have been reported.

2. Supervisors conduct “spot checks” to ensure officers are working the hours they are reporting. APD also said when officers are “on-call” they are not logged onto the CAD system and then they are called back to work.

3. APD needs to continue to update policies and procedures around the approval and monitoring of overtime.

4. The city needs to re-negotiate with the police union so that officers can not use “paid time off” as time worked in a 40 hour week and then work “overtime” in the same week to get paid time and a half.

Links to related news articles are here:

https://www.abqjournal.com/1516402/audit-2-apd-employees-made-100k-in-ot.html

EXTENT OF THE PROBLEM

Overtime abuse by APD sworn personnel has going on for many years and has long been controversial and scrutinized. In October, an Internal Affairs Investigation concluded that the department’s former spokesman, Simon Drobik, had been paid thousands of dollars of overtime and was paid for work he did not do.

For successive years, as APD Spokesman, Drobik was routinely among the highest earners in the city. Drobik ranked No. 1 among all city employees in 2018 by being paid $192,973. In 2019, Drobik was ranked as the 7th highest wage earner in 2019. When Drobik retired in July 2020, he had already collected $106,607 for the year when his base pay rate was listed as $31.50 per hour, or $65, 520 a year according city records ( $31.50 per hour X 2,080 hours a year= $65,520).

Rather than being fired, Drobik resigned and retired.

DROBIK NOT THE ONLY ONE “GAMING THE SYSTEM”

At the end of each calendar year, City Hall releases the top 250 wage earners. The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1, to December 31 of any given year.

Starting pay for an APD Police Officer immediately out of the APD academy is $29 an hour or $60,320 yearly. (40 hour work week X 52 weeks in a year = 2,080 hours worked in a year X $29 paid hourly = $60,320.)

Police officers with 4 to 14 years of experience are paid $30 an hour or $62,400 yearly. (40-hour work weeks in a year X 52 weeks in a year = 2,080 hours worked in a year X $30 paid hourly = $62,400.)

Senior Police Officers with 15 years or more experience are paid $31.50 an hour or $65,520 yearly. (40 hours work in a week X 52 weeks in year = 2,080 hours worked in a year X $31.50 = $65,520.)

The hourly pay rate for APD Sergeants is $35 an hour, or $72,800. (40-hour work week X 52 weeks in a year = 2080 hours worked in a year X $35.0 paid hourly = $72,800.)

The hourly pay rate for APD Lieutenants is $40.00 an hour or $83,200. (40 hour work week X 52 weeks in a year = 2080 hours worked in a year X $40.00 = $83,200.)

In 2018, the breakdown of the 250 top paid city hall employees revealed that all were paid between $100,000 to $192,937.23. In 2018, there were 140 Police Officers on the list of 250 top wage earners.

In 2019, the breakdown of the 250 top paid city hall employees showed they were paid between $107,885 to $193,666.23. In 2019 there were 160 sworn APD police in the top 250 wage earners with 70 APD patrol officers in the list of 250 top paid employees earning pay ranging from $108,167 to $188,844.

The excessive pay numbers in APD, especially to patrol officers, can be attributed directly to overtime paid to APD sworn police.

New Mexico Office State Auditor Brian Colon and Attorney General Hector Balderas have announced a joint investigation of APD’s overtime practices. The investigation is ongoing and involves a number of APD police officers.

RECOMMENDATION TO RENEGOTIATE CONTRAT CHANGES REJECTED BY KELLER ADMINISTRATION

One major change recommended in the recently release audit is that APD should try to renegotiate its collective bargaining agreement with the Albuquerque Police Officers’ Association so that police officers can no longer count paid time off as hours worked which allows them to be paid the overtime pay rate at time and a half for the same week. The report highlights one case where an officer worked 20 hours of their regular 40-hour week, used 20 hours of vacation time, and then worked 42 hours overtime. The audit points out:

“This officer did not work 40 hours before being eligible to earn overtime. ”

APD Spokeswoman Rebecca Atkins in response to the recommendation to renegotiate the collective bargaining agreement said the Keller Administration did not agree and had this to say:

“Right now, it’s a part of the contract we have to adhere to. Any changes would have to come from future negotiations with the APOA. … It is understood by all parties that the APOA has no interest in changing their position on this. No change is expected to occur. ”

https://www.abqjournal.com/1516402/audit-2-apd-employees-made-100k-in-ot.html

CHANGES ANNOUNCED PRIOR TO AUDIT

On October 27, APD announced the major changes to the department’s overtime policy. The Keller Administration hopes the major changes will stop APD officers from abusing overtime. Under the new policy, all overtime will require approval from higher up the chain from a commander or above. The city will audit “Chiefs’ Overtime” records and increase discipline for violations.

According to an October 27 news release, the following 5 major changes to the police overtime policy will be made:

1. Almost all forms of overtime and any exception to normal practice now require a Commander or above approval. This should reduce the instances of overtime being claimed but not worked.

2. In addition, the department has implemented a compensatory time reduction plan. Compensatory time, or “comp time,” has been a source of abuse in the past. This reduction plan will minimize comp time that is paid out once the cap has been met.

3. APD has also added numerous audit functions for anyone approving overtime. To further ensure transparency, the Payroll Department will now release regular reports to help those in leadership keep track of overtime and detect any issues as a warning system.

4. The Chief’s Overtime Office additionally will audit 30 percent of all Chief’s Overtime forms to make sure dispatch records match time worked on the forms submitted for reimbursement.

5. The sanctions for every section of the policy have been significantly raised to equate the sanction for a violation of the seriousness of this issue and to ensure robust compliance.

In October, APD spokeswoman Rebecca Atkins said the changes will go into effect immediately as the formal policy is put through a review process.

BLAIM GAME CONTINUES

Reiterating a refrain used again and again by city officials in recent months, Atkins laid the blame on former Police Chief Michael Geier who Mayor Keller forced to retire in September.

“This is another example of why we needed leadership change at APD. … The former Chief was standing in the way of meaningful change.”

COMMENTARY AND ANALSIS

Police officers earning excessive overtime is nothing new. It has been going on for years and is very common knowledge. From a personnel management standpoint, when you have a select few that are taking home the lion’s share of overtime, it causes moral problems with the rest. Excessive overtime paid is a red flag for abuse of the system, mismanagement of police resources or the lack of personnel.

Links to related blog articles are here:

https://www.petedinelli.com/2020/05/28/9864/

https://www.petedinelli.com/2018/03/30/apd-overtime-pay-abuse-and-recruitment-tool/

RESTRUCTURE 40 HOUR APD PAY SYSTEM TO SALARY PAY SYSTEM

A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented. As an alternative to paying overtime and longevity bonus, the City should do away with APD hourly wage and time and a half for overtime for sworn police and implement a salary structure based strictly on steps and years of service.

A base pay salary system should be implemented for all APD sworn personnel. A base salary system with step increases for length of service should be implemented. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same, but if more time is needed to complete a work load or assignments for the day, the salaried employee works it for the same salary with no overtime paid and a modification of shift times for court appearances.

APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignment, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear at such arraignments.

Until the APD salary structure is changed, APD will always have patrol officers first class making 2, 3 and even 4 times their base salary. Emotional burnout will be the norm, not the exception endangering public safety. Until the APD salary structure is changed, you will also have more than a few employees “gaming the system”. Historically, time and time again, year after year, the temptation to be paid 2, 3, even 4 times more a year to what your base pay is by padding hours of worked is way too great. The overtime “gaming system” has got to stop.

It’s the taxpayer and other city employees who are getting hurt when APD exceeds its budget by the millions and when APD management do not give a damn about anyone else but APD. When APD exceeds its overtime pay budget, the money has to come from somewhere and that somewhere is other city departments and other city employees. If Mayor Keller, APD Management and City Council do not realize that APD exceeding it overtime budget in fact causes morale issues and resentment with other city departments and employee who are not paid overtime, they are fools.

One guarantee way of stopping anyone within APD from “gaming the system” would be get rid of the old system of overtime pay and bonus pay. Sooner rather than later, the city and the APD union need to recognize that being a police officer is not a mere “trade” justifying hourly wages, but a “profession” that requires employees to put whatever time in is necessary to get a day’s work done that may arise in that day and police need to be compensated by a decent salary and not hourly wages.

Negotiations for a new APD union contract have been suspended because of the pandemic. If and when the City and the APD union return to the bargaining table to negotiate a new contract, the abolishment of hourly wages for APD sworn and implementation of a salary structure should be the first negotiated item for the new contract.