Why the DOJ Consent Decree Will Not Solve the Problem of Police Violence in Albuquerque

By DAVID CORREIA

After months of negotiations, the Department of Justice and City of Albuquerque reached an agreement last week on reforming use-of-force problems at the Albuquerque Police Department. The two parties held a joint press conference on Friday where they released the 106-page consent decree. The consent decree comes almost seven months after APD officers Keith Sandy and Dominique Perez, backed by SWAT and K9 units, shot and killed a homeless man named James Boyd for camping illegally in the Sandia foothills. The killing provoked outrage in Albuquerque and beyond and the video of the killing has been seen by millions of people worldwide. Months of marches and protests followed the killing, along with intense national and international media scrutiny. Critics of APD and family members of people killed by APD condemned the department for a long history of racialized killing (27 people since 2010) and pointed to the James Boyd killing as another in a long line of unjustified shootings. Less than a month after Boyd’s killing, the Civil Rights Division of the Department of Justice released the results of a lengthy investigation that concluded APD engages in unconstitutional policing and routinely uses unjustified lethal and non-lethal force.

The April report forced the City into months of negotiations with DOJ over how to reform APD. The consent decree provides the details regarding how that will happen.

The Agreement focuses on reforms in various areas of policing, including 1) APD use of force policies, 2) the function and training of specialized units such as SWAT, K9 and the bomb squad, 3) crisis intervention training for officers, 4) revised procedures for officer misconduct investigations, 5) changes to recruitment and hiring practices, and 6) community engagement and police oversight.

Once signed, the Agreement will be submitted to the United States District Court for the District of New Mexico for approval. The court retains final authority to ensure the requirements of the Agreement are implemented.

In order to ensure compliance, the Agreement creates the position of “Federal Monitor,” a person, backed by a team of investigators, who will be responsible for monitoring APD’s compliance and progress. The monitor will be selected by the DOJ and City of Albuquerque. If the two sides cannot agree upon a monitor, each will submit to the court three proposed monitors and the court will make the final decision.

The City agrees to achieve full compliance within four years. Therefore the monitor and his or her team will be appointed initially for a four-year period. But that appointment comes with the possibility for a two-year renewal if the monitor and the court conclude that APD is not yet in compliance after four years. If, after six years, the monitor still believes APD is out of compliance, the City may seek to terminate the agreement. The burden will be on the City, however, to prove to the court that it has met the terms of the agreement.

The Agreement identifies a series of duties and benchmarks for the monitor. After selection, the monitor will have 90 days to describe how the monitoring team intends to conduct its regularly required compliance reviews and outcomes assessments.

During its first two years on the job, these reviews will be ongoing and will include “public compliance reports” released every four months. After two years, those reports will come every six months. While the Agreement leaves it up to the monitor to determine how to best compile the data included in the reports, it provides a lengthy list of required elements, that include:

  1. Number of uses of force;
  2. Number of force complaints;
  3. Number of uses of force that violate policy;
  4. Number of use of force administrative investigations;
  5. Number of officers who are identified in the Early Intervention System for
  6. which use of force is a factor;
  7. Number of injuries to officers and members of the public;
  8. Ratio of use of force compared per arrest;
  9. Number of activations and deployments of specialized tactical units;
  10. Crisis intervention measures;
  11. Various recruitment measurements and activities;
  12. Number of officers trained pursuant to the Agreement;
  13. Training deficiencies identified through use of force investigations;
  14. Various officer assistance and support measurements;
  15. Number of misconduct complaints;
  16. Number of sustained, not sustained, exonerated, and unfounded misconduct
  17. complaints;
  18. Number of misconduct complaint allegations supported by a preponderance of
  19. the evidence;
  20. Number of officers who are subjects of repeated misconduct complaints, or
  21. have repeated instances of sustained misconduct complaints; and
  22. Number of criminal prosecutions of officers for on- or off-duty conduct.

In addition, the Agreement requires that APD create a new process to conduct use-of-force investigations and charges the monitor with reviewing each of those investigations of force for its consistency with the standards defined in the Agreement and including an analysis of that review in its regular reports.

After two years, the monitor will conduct a comprehensive review of compliance that will identify “areas of achievement” and “areas of greatest concern.”

The monitor and his or her team will be busy. In addition to data-gathering and report-writing, the monitor will meet monthly with the police chief, the city attorney, something vaguely called the “APD implementation Unit”, and the DOJ. The monitor will also meet with “community stakeholders” to explain the reports and implementation progress, although the Agreement doesn’t identify who those stakeholders are, nor does it explain how the monitor will identify them.

The Agreement makes it impossible for the monitor to turn the position into a bully pulpit. The consent decree prohibits the monitor from issuing findings publicly or from making any public statements whatsoever without approval from the DOJ and the City of Albuquerque.

Analysis

The required information in the public compliance reports could force a level of APD transparency unknown in Albuquerque. But the Agreement leaves it up to the monitor to determine how that information will be collected and tabulated. Language elsewhere in the Agreement places the same data collection burden on APD. It seems possible, even likely, that this will result in the monitor relying on APD to self-report this data. How else, after all, could the monitor acquire data on use-of-force patterns at APD? For example, the Agreement requires that APD create a Use of Force Review Board comprised of the “Assistant Chief of the Professional Accountability Bureau, the Deputy Chief of the Field Services Bureau, the Deputy Chief of the Investigations Bureau, a Field Services Major, the Training Director, and the Legal Advisor.” This review board will “review each use of force investigation completed by the Internal Affairs Bureau” (another new requirement) and will also “review and analyze use of force data, on at least a quarterly basis, to determine significant trends and to identify and correct deficiencies revealed by this analysis.” In addition, the board “shall publish a Use of Force Annual Report” that includes the following elements:

  1. Number of calls for service;
  2. Number of officer-initiated actions;
  3. Number of aggregate uses of force;
  4. Number of arrests;
  5. Number of custodial arrests that involved use of force;
  6. Number of SWAT deployments by type of call out;
  7. Number of incidents involving officers shooting at or from moving vehicles;
  8. Number of individuals armed with weapons;
  9. Number of individuals unarmed;
  10. Number of individuals injured during arrest, including APD and other law
  11. enforcement personnel;
  12. Number of individuals requiring hospitalization, including APD and other law
  13. enforcement personnel;

Where will the Use of Force Review Board acquire such information? From APD itself of course. The agreement requires that APD “develop and implement a use of force reporting policy and Use of Force Report Form that comply with applicable law and comport with best practices.” In other words, the DOJ is leaving it up to APD to determine what constitutes use of force; leaving it up to APD to determine how to compile information on use of force; and leaving it up to APD to determine how to discipline officers guilty of unjustified use of force. If this seems like business as usual, it’s because it is. The difference is that we have a federal monitor to force compliance. But the Agreement makes real oversight almost impossible because the person charged with monitoring compliance with this Agreement will determine compliance based on APD self-reporting of non-compliance.

This is not a minor issue limited to just this part of the Agreement. The Agreement imposes policies on APD that it already has, such as policies against firing from, or into, moving vehicles; that officers carry only department-issued firearms; that electronic control weapons (Tasers) be used only as “a compliance technique to overcome passive resistance.” The problem of course has always been that APD either doesn’t follow its own policies or interprets them so broadly as to allow officers to police in whatever way they see fit.

The value of a consent decree, many assumed, would be that it would impose specific court-imposed policies on APD brass and prohibit specific practices by APD officers. But it does not do this. While it identifies policies and prohibits some practices, it leaves the interpretation of those policies and practices to APD. Consider the following list drawn from throughout the agreement:

  1. No neck holds “except where lethal force is authorized.”
  2. Electronic control weapons (ECWs) cannot be used if it poses a risk of injury to the subject, “except where lethal force would be permitted.”
  3. Officers shall not target a subjects “head, neck, or genitalia, except where lethal force would be permitted.”
  4. ECW’s shall not be used on handcuffed subjects, “unless doing so is necessary to prevent them from causing serious injury to themselves or others.”

APD already justifies use of force by routinely making the dubious claim that officers’ lives were in danger and thus force was justified. Eden did this most famously in the press conference following the killing of James Boyd when he tried to argue that the killing was justified because Boyd carried two small knives, and he therefore constituted a threat to the lives of dozens of military-equipped SWAT officers who were wearing bullet-proof vests and carrying grenade launchers and machine guns. This Agreement keeps in place APD’s trump card. If an officer merely thinks his or someone else’s life is at risk, the use of lethal force will be justified.

At the press conference announcing this agreement, Damon Martinez promised that the consent decree was not some boilerplate agreement taken off the shelf, rather the “Agreement is specifically tailored to the community of Albuquerque.” If it were true, we would find, in particular, the Use-of-Force section uniquely crafted to address the frequent, almost routine, use of unjustified lethal and non-lethal force at APD. Some of it is unique to APD, but much of it is precisely the boilerplate Martinez promised that it would not be. Consider the similarities between the language in the APD use-of-force portion of the Agreement and the same section in the 2013 consent decree with the New Orleans Police Department.

New Orleans:

III. USE OF FORCE

  1. Use of Force Principles
  2. Use of force by NOPD officers, regardless of the type of force or weapon used, shall abide by the following requirements.
  3. a) officers shall use advisements, warnings, and verbal persuasion, when possible, before resorting to force;
  4. b) force shall be de-escalated immediately as resistance decreases;
  5. c) when feasible based on the circumstances, officers will use disengagement; area containment; surveillance; waiting out a subject; summoning reinforcements; and/or calling in specialized units, in order to reduce the need for force and increase officer and civilian safety;
  6. d) officers shall allow individuals time to submit to arrest before force is used wherever possible;
  7. e) NOPD shall explicitly prohibit neck holds, except where lethal force is authorized;
  8. f) NOPD shall explicitly prohibit head strikes with a hard object, except where lethal force is authorized;
  9. g) NOPD shall explicitly prohibit using force against persons in handcuffs, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons, or, as objectively reasonable, where physical removal is necessary to overcome passive resistance;
  10. h) NOPD shall explicitly prohibit the use of force above unresisted handcuffing to overcome passive resistance, except that physical removal is permitted as necessary and objectively reasonable;
  11. i) unholstering a firearm and pointing it at a person constitutes a use of lethal force, and shall accordingly be done only as objectively reasonable to accomplish a lawful police objective;
  12. j) officers shall not use force to attempt to effect compliance with a command that is unlawful. Any use of force by an officer to subdue an individual resisting arrest or detention is unreasonable when the initial arrest or detention of the individual was unlawful;
  13. k) immediately following a use of force, officers and, upon arrival, a supervisor shall inspect and observe subjects for injury or complaints of pain resulting from the use of force, and immediately obtain any necessary medical care. This may require an officer to provide emergency first aid until professional medical care providers are on scene.

Albuquerque

  1. USE OF FORCE: INTERNAL CONTROLS AND ACCOUNTABILITY
  2. Use of Force Principles
  3. Use of force by APD officers, regardless of the type of force, tactics, or weapon used, shall abide by the following requirements:
  4. a) officers shall use advisements, warnings, and verbal persuasion, when possible, before resorting to force;
  5. b) force shall be de-escalated immediately as resistance decreases;
  6. c) officers shall allow individuals time to submit to arrest before force is used whenever possible;
  7. d) APD shall explicitly prohibit neck holds, except where lethal force is authorized;
  8. e) APD shall explicitly prohibit using leg sweeps, arm-bar takedowns, or prone restraints, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons; to overcome active resistance; or as objectively reasonable where physical removal is necessary to overcome passive resistance and handcuff the subject;
  9. f) APD shall explicitly prohibit using force against persons in handcuffs, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons; to overcome active resistance; or as objectively reasonable where physical removal is necessary to overcome passive resistance;
  10. g) officers shall not use force to attempt to effect compliance with a command that is unlawful;
  11. h) pointing a firearm at a person shall be reported in the same manner as a use of force, and shall be done only as objectively reasonable to accomplish a lawful police objective; and
  12. i) immediately following a use of force, officers, and, upon arrival, a supervisor, shall inspect and observe subjects of force for injury or complaints of pain resulting from the use of force and immediately obtain any necessary medical care. This may require an officer to provide emergency first aid until professional medical care providers arrive on scene.

Martinez would probably rebut this criticism by countering that the language is similar because it defines best practices and Albuquerque and New Orleans exhibited similar problems around the use of force. We don’t need to reinvent the wheel, in other words. But he would be wrong. The language in this critically important section is written to address the general problem of unjustified police violence and not the particular problem of unjustified force at APD. Each standard, policy or practice defined in the Agreement either repeats requirements that are already in place, identifies new policies left open to interpretation by the very officers they cover, or, worst of all, lets APD, which for generations has refused to hold itself accountable, design a method of accountability.

We’ve been down this path before. In the late 1990s, after the damning Walker-Luna report concluded that APD was out of control, the City Council passed a series of reforms and, like the consent decree, left the details and the implementation up to APD. The killing did not end.

Like then, this Agreement is premised on the false idea that APD is serious about reform and can design a solution to its own problems. The DOJ must not realize that we’re here today because APD cannot and has long refused to do just that. But instead of confronting that fact, the Agreement makes delusional statements that try to convince us it’s now somehow possible. Consider the following passage: “The Parties recognize that APD began taking steps to ensure greater accountability and supervision in response to a June 2011 report issued by the Police Executive Forum and both before and after the Department of Justice’s release of its April 2014 findings letter.” Absolutely nothing about this statement is true. First, the City took no steps to ensure greater accountability in the wake of the PERF report in June 2011, because the PERF report did not study APD use of force. The City asked the Police Executive Forum, a kind of trade or lobbying group for police, to study the following two questions in its 2011 report: “What contributes to assaults on Albuquerque police officers?” and “Is there a correlation between Albuquerque’s violent crime rate and the number of assaults on police officers?” Does that sound like a use-of-force study? It’s true that the authors of the report considered the spike in APD officer-involved fatal shootings, but in all cases it linked that pattern to unsupported patterns of imaginary violence directed at APD. Berry actually used that report as the rationale in 2011 to argue that APD was just fine and there was no need for a DOJ investigation.

Second, what steps has APD taken toward greater accountability since the release of the April DOJ report? Not a single officer involved in any of the unjustified use of force encounters described in that report has been disciplined. Some have in fact received awards and promotions. APD banned the use of personal weapons, but then immediately purchased hundreds of AR-15 automatic machine guns to distribute to officers, hardly a community-policing initiative. APD, according to the Agreement, decided on its own to disband ROP (repeat offender project), a special anti-gang unit of APD that had become itself a kind of gang. It was the unit in which Boyd’s killer, Keith Sandy, worked and it made the news a couple of years ago when it was revealed that it used a lynching noose as its logo in internal communication. It’s certainly a good thing that ROP is gone, but it is troubling that its former officers and supervisors will now be distributed throughout APD.

As disappointing as the use-of-force section is, the crisis intervention section is worse. Nearly all of APD’s victims have been people who were suffering from either mental illness or in mental health crisis. The agreement does nothing whatsoever to address that problem, requiring only that “APD agrees to minimize the necessity for the use of force against individuals in crisis due to mental illness.” What does this mean? Are we to assume that prior to this agreement, APD actively sought out mentally ill people in order to victimize them? And if that were true, would this one sentence resolve it?

The section does create a “Mental Health Response Advisory Committee” comprised of “representation from APD command staff, crisis intervention certified responders, Crisis Intervention Unit (“CIU”), Crisis Outreach and Support Team (“COAST”), and City-contracted mental health professionals.” This is alarming because it suggests that the Department of Justice did not do its homework. Do they not know that COAST is despised by homeless people? Most see COAST as a kind of plainclothes unit of APD that conducts sweeps in order to check for warrants. Under section D (Crisis Prevention), the Agreement actually calls for an expansion of COAST. APD should “continue to utilize COAST… to follow up with chronically homeless individuals with a known mental illness who have a history of law enforcement encounters and to proactively work to connect these individuals with mental health and service providers.” If only COAST actually did that. Unwittingly, it seems, the DOJ just gave APD marching orders to intensify the criminalization of the poor and the homeless.

If there was one thing that no one believed, it was that APD could police itself. And yet, the idea that the solution to APD is APD is at the very heart of this Agreement. And DOJ’s faith in APD’s ability and willingness to police itself produces its share of absurdities. Consider the section that actually “requires” that APD officers self-report their misconduct “to a supervisor or directly to the Internal Affairs Bureau.” Or the part of the Agreement that now requires that APD officers carry officer-misconduct complaint forms wherever they go. “Officer, once you’re done violating my constitutional rights, could you pass me one of those complaint forms in your pocket?” Or the section titled “Community and Problem-Oriented Policing” that actually includes the following sentence: “APD shall ensure that officers are familiar with the geographic areas they serve.” Or the fact that the Agreement leaves it up to APD to train its officers in “leadership, ethics and interpersonal skills.” I laughed out loud so often while reading this Agreement that my daughter, in the other room, thought I was watching a sitcom.

But the Agreement is no sitcom; it’s a horror show. In section after section, the DOJ identifies a problem and then charges the very agency responsible for creating that problem with coming up with a plan to fix it. The DOJ noted profound deficiencies in Internal Affairs investigations of officer-involved use of force. This Agreement “solves” that problem by requiring that APD “ensure that investigations of officer misconduct complaints shall be as thorough as necessary to reach reliable and complete findings.” The Agreement describes new requirements for crisis intervention training, requires new processes for officer misconduct investigation, and defines new oversight responsibilities for brass. but in every case—in every case—leaves it up to APD to achieve those goals. Each obligation or requirement in the Agreement is followed with a sentence that includes the language “APD shall develop and implement” or “APD shall revise and update its policies and procedures ” or “APD shall develop objective criteria for.” The only evidence that DOJ was involved in drafting this Agreement is the fact that much of it is plagiarized from other consent decrees. Otherwise, it reads as though drafted by APD itself.

We live in a city with a police department that routinely violates the constitutional rights of the people it’s charged to serve. It kills and brutalizes people at an alarming rate and with a frightening precision and it’s been doing it for decades. And, after this Agreement, there’s no end in sight.

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