By DAVID CORREIA
During a five-hour special meeting on Thursday, September 18, the Albuquerque City Council abolished the existing Police Oversight Commission and unanimously passed an ordinance creating the Civilian Police Oversight Agency.
Since 2010 the Albuquerque Police Department has killed 27 people. An April 2014 Department of Justice report of APD’s use of force concluded that APD routinely engages in unconstitutional policing and that a majority of recent fatal shootings were unjustified. Days after the release of the DOJ report three members of the existing Police Oversight Commission—Jonathan Siegel, Richard Shine and Jennifer Barela—resigned in protest.
The Police Oversight Commission ordinance abolished at Thursday’s meeting included an Independent Review Officer, whose job it was to review and investigate public complaints against APD officers. The DOJ report expressed concern that the Independent Review Officer has become increasingly cozy with APD. Jonathan Siegel agreed, describing the work of the Commission as “suspect” given the cozy relationship of Robin Hammer, the Independent Review Officer (IRO), with the City Attorney and Chief of Police.
In addition to concerns regarding the IRO, The DOJ pointed to systemic failures in police oversight in Albuquerque that contribute to the problem of unconstitutional policing at APD. Jennifer Barela, in her resignation, agreed, noting that the Commission “no longer has the power to conduct any civilian oversight of the Albuquerque Police Department or to review or disagree with the Independent Review Officer because of the current, defective Police Oversight Commission Ordinance and the City Attorney’s recent interpretations of the Police Oversight Commission’s Rules and Powers.” She pointed to the April 10, 2014 meeting of the Police Oversight Commission (ironically the very day the DOJ released its report) in which the City Attorney’s Office, through its representative, told the Commission that it does not have the power to vote against or change the findings of the Independent Review Officer and/or the Chief of the Albuquerque Police Department.
Richard Shine added that the City Attorney’s office actively blocked the Police Oversight Ccommission from exercising its “authority under the POC Ordinance to ‘monitor’ all APD Internal Affairs investigations–including the use of Tasers and the officer-involved shootings of which the U.S. Department of Justice has recently been so critical.” According the Shine, the City Attorney advised the Chief of Police to ignore Police Oversight Commission requests and refuse to discuss the matter.
Even before the DOJ report or the three resignations, the City Council admitted that police oversight was broken, a word councilors used frequently on Thursday to describe the ordinance they voted to abolish. In May of 2013, the Council acknowledged that “recent events have eroded the public’s faith in the police oversight process” when it created a Police Oversight Task Force (POTF). For more than a year, eleven members selected by the council have been working to “independently review the City’s mechanisms of police oversight.” Those efforts culminated in recommendations City Council staff included in the proposed ordinance passed unanimously by the City Council at the Thursday meeting.
Before the vote, during public comment, the council found almost universal opposition to the proposed ordinance. The President of the Albuquerque Police Officers Association, Stephanie Lopez, complained about a number of requirements in the ordinance, including what she considered violations of police officers’ Garrity Rights.
Garrity Rights refer to protections extended to police officers who are compelled to testify during internal affairs investigations. The Fifth Amendment prohibits the government from compelling citizens to testify against themselves. Police officers, however, work for the government and therefore can be compelled. Garrity Rights provide protections for police officers, and all public employees, from being prosecuted based on compelled testimony.
Lopez took exception to sections of the new ordinance that made Police Officers’ Garrity statements available to commissioners of the new Board of the Citizen Police Oversight Agency. In response councilors amended the ordinance to restrict commissioners’ access to Garrity statements and added criminal penalties against any commissioners who “recklessly violates the confidentiality provisions” of the ordinance.
Lopez still objected. When Councilor Don Harris asked Lopez if the Albuquerque Police Officers Association was seriously considering filing a lawsuit, she replied, “I think so.”
Five of the eleven members of the POTF, which provided the recommendations for most of the ordinance under consideration, attended the special meeting and all voiced pointed criticisms of the ordinance. Most of those criticisms focused on the many amendments that Councilors proposed to the ordinance.
Andrew Lippman, the chair of the POTF, told Councilors he “came prepared to support this third iteration of the bill. There are still challenges and the bill is not perfect, yet when I arrived here tonight I was surprised to find a document that included 22 amendments to the bill. Some of these amendments are good but some are terrible.”
Nancy Koenigsberg, another POTF member, pointed to differences between the draft agreed to by the POTF and the one under consideration. She voiced concern that the new Commission would spend too much time on public complaints and not enough time reviewing policy issues. “Do not accept this ordinance,” she told the council. If you do all our work “was for naught.”
Jonathan Siegel, one of the three Police Oversight Commissioners who resigned in April, called the ordinance, with all its last-minute amendments, “legislation on the fly… A good police department needs accountability. It doesn’t diminish the police, it expresses how ready they are to be examined.”
Peter Simonson, the Executive Director of the New Mexico American Civil Liberties Union and a member of the POTF, expressed concern that the number of amendments made it difficult to evaluate the ordinance. “I haven’t had a chance to review them all.” He also agreed with Koenigsberg on the need for a Commission focused on policy analysis. “One key flaw of the existing Police Oversight Commission,” he told Councilors “was its focus on police complaints rather than on policy or systemic issues. This problem has been highlighted in all reports on the problems at APD.” As a result, in the middle of an “alarming streak” of unjustified use of force problems at APD, “the Police Oversight Commission was silent.” He noted that sections that focused the new Commission on policy have been taken out. “I urge you to restore the process that assures the Commission focuses on systemic issues.”
Alan Wagman, an assistant public defender and POTF member, echoed Simonson’s concerns. He noted that the ordinance includes language about policy review “but structures the workload of the [new Board] similarly to the existing ordinance,” thus making it unlikely that real policy review work would happen. “There’s a problem when you expect it to do policy but don’t structure it do so.” He used the example of Mickey Owings to highlight the importance of the issue. Owings was killed in March of 2010 when APD officer Kevin Sanchez fired into his car. Wagman pointed out that the DOJ criticized APD for its policy that permitted APD officers to fire into moving cars. But Independent Review Officer Robin Hammer argued that her job was to “determine if an officer followed policy, not whether to consider if a policy was bad.”
A final member of the Police Oversight Task Force, Fabrizio Bertoletti made the opposition unanimous. “This legislation and amendments limit authority to hearing individual complaints.” The previous commission, he pointed out, failed to address systemic issues.
Even current Independent Review Officer Robin Hammer spoke out against the ordinance. Hammer has been criticized for her cozy relationship with the City Attorney and refusal to take a tough stance on the problem of police violence. In the face of all the criticism of the ordinance, City Councilor Trudy Jones asked Hammer for her opinion. She told councilors that Samuel Walker, the co-author of the 1996 Walker-Luna report that criticized APD use of force patterns and led to the creation of the existing Police Oversight Commission, believed that “the privileged flaw of most police oversight models is its use of an adversarial model. He believes that lasting reform requires a focus on policies and procedures.” She explained that the focus on individual complaints has “swamped” the existing Police Oversight Commission and she agreed with the calls among POTF members for a focus on policy as the only way to get at systemic problems at APD. She asked that councilors defer and redraft the ordinance in order to “leave individual complaints to the [proposed] Agency’s executive director, thus freeing up the commission to spend its time on systemic issues.”
The only person happy with the ordinance was Scott Greenwood, the attorney currently representing the City of Albuquerque in negotiations with the Department of Justice. Those secret negotiations will result in a legally binding “consent decree” that most observers expect will impose on APD a series of reforms based on the specific recommendations included in the April 2014 DOJ report.
He told Councilors that negotiations “had now reached a point that civilian oversight is at the fore.” He disagreed with criticisms by the POTF and claimed that the ordinance “frees up the time” of the new Commission to “look at systemic issues.” The ordinance, he said, “strikes the right balance” and he praised the Council for considering an ordinance that would place Albuquerque “at the forefront of oversight” nationally.
He also disagreed with the Albuquerque Police Officers Association, saying that concerns regarding Garrity were minimal.
Councilor Don Harris asked Greenwood if the changes they were considering were consistent with DOJ concerns. “This legislation has been vetted by the DOJ,” he told Harris. “It is consistent with what they want us to do in the agreement we’re crafting.” He implored the Council throughout the evening to approve the proposed ordinance and implied that the ordinance had the DOJ’s stamp of approval.
In response to a question over concerns of the Albuquerque Police Officers Association regarding conflicts between the ordinance and the police union contract, Greenwood explained that the ordinance would become part of the consent decree and thus the supremacy clause meant that the ordinance would override the union contract.
Some councilors weren’t satisfied and asked Greenwood to directly address criticisms of the ordinance by members of the POTF. he said again that the ordinance “strikes the right balance.” The new Commission will spend most of its time on policy, he promised. Councilor Rey Garduño was unconvinced. “I don’t see where it says that. I want to see where it’s spelled out,” he told Greenwood.
Garduño called Peter Simonson back to the microphone and asked if wording in the ordinance that Greenwood said guarantees the Board will devote its time to policy actually guarantees it. “No,” Simonson says, “the math doesn’t add up.” He told the Councilors that they’re considering an ordinance that gives more work to the new Board. “Aren’t we inviting the new Board to devote more time on civilian complaints? It’s clear that our civilian oversight has not risen to the challenge. It’s not enough for us to say now that they will do this if we give them the same or greater workload, a workload that takes them away from attention to systemic issues.”
Simonson illustrated the importance of policy review by using as an example the current APD practice of scanning license plates. As routine practice, APD, like police departments throughout the country, collects information through the use of traffic cameras and cameras mounted to police cruisers. The proliferation of license plate scanning networks, made possible through Department of Homeland Security grants to metropolitan police departments, occurs without a warrant. Civil liberties groups condemn the widespread collection of information. “What are they doing with this information? Why and Where are they storing it?” asked Simonson. “This is a policy that needs attention.”
But Greenwood emphatically defended the ordinance. In making that argument he largely ignored the workload issues raised by Simonson and instead pointed to language in the ordinance. “If it wants to [focus on policy], it has the ability.”
Nancy Koenigsberg returned to the microphone. “I respectfully disagree with Scott Greenwood,” she told the Councilors. “The ordinance effectively strips the policy piece that everyone says is important.”
Councilor Trudy Jones weighed in. She agreed with everyone who called the previous Police Oversight Commission broken. Her complaints, however, differed with every other criticism of existing police oversight, including the DOJ, which focused on the problem of interference by Mayor Richard Berry’s office or City Attorney, or because of the focus on complaints as opposed to systemic issues under the previous model. Jones found a much different culprit. She chalked it up to a few overzealous commissioners “who liked the gore” that came with the job. She also complained that a few activist commissioners “had run amok,” and thus ruined the previous Commission, a complaint that seemed directed at the POTF members in attendance on Thursday and the three commissioners who had resigned in protest.
Councilor Brad Winter too defended the ordinance against criticism, reminding the Councilors that the ordinance had been “vetted by DOJ.” He argued that criticisms of the many amendments should be ignored because they were all proposed “with the blessing of the DOJ.” His comments implied that the ordinance as written and amendments were preferred by DOJ.
The Council then debated whether or not the decision to vote on the ordinance should be deferred in order to give the public a chance to review the final document. Council President Sanchez pointed out that he himself didn’t even get a chance to review the many amendments. The 22 amendments were added by individual Councilors, some of which were added apparently at the last minute. “I support a deferral until next Council meeting. This is the most important bill in my 16 years on Council.”
Winter said he wouldn’t agree to a deferral and he asked Greenwood if the consent decree would be ready soon. “We’re in the home stretch,” said Greenwood. Again it appeared Greenwood intended to imply that the DOJ wanted this ordinance approved that very night. “This is already vetted by DOJ,” agreed Winter. “We can’t wait.”
Don Harris agreed with Winter. “I don’t support a deferral.” Sanchez reiterated the need for a deferral. “We’re hearing the task force that created this document ask us to defer it. I’ve never seen a bill with 22 amendments.” Councilor Ike Benton agreed. “I’m inclined to support a deferral.”
Garduño agreed but suggested the Council work its way through each of the amendments and make a decision on deferral after they’ve approved or rejected the many floor amendments. By this time it was 7:30 PM. The Councilors agreed to take a dinner break and then return at 8:00 PM to work on the amendments.
During the break I asked Greenwood if the DOJ had in fact “vetted” and “approved” the ordinance as written. I wanted to understand if, indeed, Council urgency to pass the ordinance against broad opposition was motivated by the DOJ. Greenwood told me “[The DOJ] received copies of the ordinance and that’s all I can say.” He made his way out of the chambers but called me over to say, “they’ve also provided feedback.” I asked if the ordinance needed to be passed tonight because of something the DOJ made clear to Councilors. “Does it need to be included in the consent decree?” I asked. “We can’t move forward until this issue is resolved,” he told me.
The Council reconvened at 8 PM. Councilor Dan Lewis, who came in late during the public comment and debate, was absent. The Council worked through each of the many amendments, quickly approving most, withdrawing others and rejecting a few controversial proposals.
The first controversial issue was an amendment sponsored by Ike Benton that added the following language to the ordinance: “This independent legal counsel will be funded through the City Attorney’s Office, who shall manage the contracts and billing.” Each member of the POTF told the Council that independent legal counsel was imperative for the new Board. Nancy Koenigsberg was particularly concerned about this issue, telling the Council that any hope to establish a firewall between the new Civilian Police Oversight Agency and the City Attorney’s office would be impossible under such a budgetary arrangement. It was through meddling by the City Attorney, according to the three members of the Police Oversight Commission who resigned in protest, that the Chief of Police and Mayor’s office was as able to undermine the effectiveness of the previous Commission. Benton agreed to withdraw the amendment after city staff agreed that the language could “cut against the goal of independence.”
The ordinance included language to disqualify existing members of the Police Oversight Commission or Police Oversight Task Force from serving as a member of the Board of the new Civilian Police Oversight Agency. Sanchez and Benton proposed an amendment striking this language, arguing that it seemed oddly punitive. Garduño also expressed discomfort excluding people. Even Scott Greenwood seemed perplexed by the exclusion. “They’d all be terrific.”
But Trudy Jones, with a logic all her own, implied that the Commissioners of the previous Police Oversight Commission and the members of the POTF who provided recommendations for the ordinance she now supported should be blamed for any police oversight dysfunction and thus should be excluded.
Councilor Diane Gibson supported the arbitrary exclusion of highly qualified Albuquerque residents from public service and voted with Jones and Winter to create a blacklist. But the amendment failed.
Garduño proposed a late amendment adding language to the ordinance requiring that “more than fifty percent” of the work of the Board be devoted to police policy review. Simonson, who wrote the amendment, explained that the Board needed “a strong mandate to get after policy issues. There’s a long history of police oversight failing to do so.” Greenwood supported the language. It passed unanimously.
With that, after more than five hours of debate, the Council voted unanimously to create a new Civilian Oversight Police Authority that, like its predecessor, could only make advisory recommendations to the Chief of Police regarding officer discipline and police policies. Under the new ordinance, like the previous one, the Chief of Police would be free to reject those recommendations. Every Albuquerque Police Chief has rejected every recommendation from the previous Police Oversight Commission. The new ordinance gives the Albuquerque Police Chief the same opportunity.
The meeting was held nearly six months to the day that SWAT and K9 officers of the Albuquerque Police Department shot and killed James Boyd.