In Federal Court, Mayor Richard Berry Denies DOJ’s Allegations of Wrongdoing by APD

By DAVID CORREIA

The consent decree between the United States Department of Justice (DOJ) and the City of Albuquerque’s police department (APD) took six months to negotiate. Six months of haggling in order to find a way to fix APD. DOJ came to town more than two years ago to investigate a department that kills more people per capita than any other police department in the United States. Since 2010, APD has shot 41 people, killing 27. The City was forced into negotiations with DOJ six months ago after DOJ’s investigation concluded that most of the time APD uses lethal force it does so unjustifiably. The consent decree promises to resolve what DOJ described as routine unconstitutional policing at APD.

There was much hope in Albuquerque that it would do just that; hope that the consent decree would finally end aggressive, deadly policing in Albuquerque. The City and the DOJ announced the agreement and released the text of it, on October 31.

What an inspired choice Halloween was! What an appropriate day to release the report. The agreement is a horror show.

I argued in a previous post that the agreement will not resolve the problem of police violence in Albuquerque. The agreement imposes nothing on APD, instead it leaves it up to APD brass to fix a department it is responsible for breaking.

The consent decree cannot resolve the problem of police violence because police chief Gorden Eden and Albuquerque Mayor Richard Berry do not believe police violence is a problem.

This is perhaps their greatest public relations coup—convincing so many people that they’re serious about fixing APD. Too many people think the Mayor takes police reform seriously. Too many people trust that Gorden Eden and the brass at APD will work diligently to resolve the many problems at APD. In truth, they are hostile to every conclusion in the DOJ investigation released in April 2014. They disagree that APD engages in unconstitutional policing. They deny that APD officers routinely engage in the unjustified use of lethal and non-lethal force.

Their real position, and evidence of the miserable prospects for real reform at APD, came in mid-November of this year. On November 12, the DOJ filed its complaint (read the complaint here:  USA vs ABQ) against APD in Federal Court. In a brief filed with the United States District Court for the District of New Mexico, US Attorney Damon Martinez officially brought civil action against Albuquerque in order “to remedy a pattern of practice of use of excessive force by officers of the Albuquerque Police Department that deprives persons of rights, privileges, or immunities secured and protected by the Fourth Amendment.”

The complaint officially puts in motion a legal remedy for the problem of police violence. The court, however, will not be asked to consider the veracity of the DOJ’s complaint or to devise a solution to the problem. The consent decree serves as the out-of-court resolution to the problem. The court will merely supervise the City’s compliance with the terms of the consent decree.

There can be no consent decree, however, until there is first an official complaint. And the November 12 complaint is as blistering in its condemnation of APD as the April DOJ Findings Letter that kicked off the negotiations that eventually led to the agreement.

The complaint alleges that APD officers “engage in a pattern or practice of using excessive force during the course of arrests and other detentions in violation of the Fourth Amendment.” This pattern “stems from systemic deficiencies in [APD’s] policies, training, supervision, recruiting, hiring, internal investigations, and external oversight.”

The DOJ examined 20 officer-involved shootings between 2009 and 2012 and found that “the majority of these shootings were unconstitutional.” The problem, however, did not end in 2012. According to the DOJ, “the use of unreasonable deadly force by Albuquerque police officers continues.”

Force is too often used, and most of the time unreasonably, against unarmed subjects, those “known or suspected of having mental illness and experiencing mental health crisis.”

And it’s not just lethal force. “Officers typically use physical force, such as punches, kicks, and violent takedowns against individuals who pose little or no threat to officers, or who offer only minimal resistance.”

These problems are not the result of a few bad police officers. It is “the result of [APD’s] failure to institute adequate controls and systems of accountability to detect, correct, and prevent officer misconduct.” Those in leadership positions at APD “failed to ensure that the Albuquerque Police Department provides adequate policies, training, and accountability systems on use of force.” As a result, officers “fail to accurately and fully report their use of force… first-line supervisors often fail to scrutinize officers’ use of force and overlook material inconsistencies… internal investigators often fail to conduct timely, thorough, and objective investigations into officers’ use of force… commanders routinely fail to detect patterns or trends of misconduct.”

The complaint concludes by asking the court to “order [APD] to adopt and implement policies, procedures, and practice to remedy the pattern or practice of use of excessive force.”

The purpose of the consent decree is to do just that. The agreement commits the City to that reform. But a close read of the agreement reveals that the DOJ leaves it up to APD to design and implement those new policies and practices. What kind of partner does DOJ have in this process? Does APD admit DOJ’s allegations? Are APD brass willing, enthusiastic, and reform-minded? These are important questions because in order to solve the problems alleged by the DOJ in its November complaint, the City, led by Mayor Richard Berry, and APD, led by Chief Gorden Eden, would have to acknowledge that there is a problem of police violence at the very least. After all, what possibility of success could we expect from the consent decree if those responsible for addressing APD’s many problems didn’t think APD had any problems at all?

The answers to all of these questions came on November 14, 2014. Two days after the DOJ filed its complaint with the court, the City of Albuquerque responded with its answer (read the City’s Answer here: ABQ Answer to Complaint). In a short, five-page brief, the City denied EACH and EVERY factual allegation regarding APD conduct in DOJ’s complaint. It even denied “each and every allegation and finding contained in the Department of Justice’s April 10, 2014 Letter of Findings.”

The City admitted that its officers were involved in 20 officer-involved shootings between 2009 and 2012 but denied that ANY were unjustified. The authors of the City’s answer to the DOJ complaint then repeated, eighteen times, the phrase “The City denies the allegations…” Eighteen times.

Just two weeks after Mayor Berry stood at a podium announcing the consent decree and pretending he was serious about reform at APD, City Attorney David Tourek and Special Counsel to the City of Albuquerque Scott Greenwood wrote a brief asking the court to “dismiss Plaintiff’s Complaint with prejudice.”

These are the people who will fix the problem of police violence in Albuquerque. They do not believe there is a problem of police violence in Albuquerque.

Mayor Richard Berry (center) and Gorden Eden (left) pretending to take seriously the allegations of police wrongdoing by United States Attorney Damon Martinez (at podium) on October 31 press conference announcing the release of the consent decree.
Mayor Richard Berry (center) and Gorden Eden (left) pretending to take seriously the allegations of police wrongdoing by United States Attorney Damon Martinez (at podium) at October 31 press conference announcing the release of the consent decree.

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5 comments

  1. I absolutely agree that no one in the administration — repeat, no one in the administration — is serious about fixing APD. There is ample evidence to support that proposition. However, I don’t think that the denials of allegations prove anything at all beyond that the administration is trying to protect against civilian lawsuits. I would be astonished if the city did not issue denials. Almost as astonished as I will be if the city actually initiates rather than obstructs meaningful reform.

    • Alan,
      It is indeed not a surprise. But if we look past the legal reasoning behind the City’s denials filed in its brief in federal court, what we find is a Mayor and police chief who refuse to admit any wrongdoing. They are now in charge of fixing a department they don’t think is broken. This is a troubling fact that we shouldn’t ignore. It suggests the DOJ’s remedy will help us find any resolution to the problem of police violence.
      David

  2. “It suggests the DOJ’s remedy will help us find any resolution to the problem of police violence.” Not.

    In retrospect, gentlemen, what interventions could we have formulated that would have yielded more fruitful results?

  3. DOJ declaring police use of excessive force with no consequences is the pattern across the country. DOJ allows the death squads to continue unimpeded from Seattle to Oakland to NYC and elsewhere, for that is what police have become. Why they even bother with their gutless declarations of “excessive force” in the useless investigations is beyond me.

    I think of the unsolved murderes of 13 women found in the mass grave outside Albequerque 5 years ago as a stark example of embedded and encouraged free trade elimination of the expendable which is rampant with US training, arms and “advisers” in Colombia and Mexico. Why should the US be headed in a more just direction? It’s blood soaked agenda dovetails nicely with corporate agenda world wide. All that matters is unfettered profits and deadly entertainment for the rich and their paramilitary forces. Juarez is right here.

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