AFSCME and ACLU Gut New Mexico’s Proposed Ban on Chemical Weapons, Attack Dogs, Rubber Bullets

New police reform bills in the New Mexico legislature, just like old police reform bills in New Mexico, propose new laws to require police to police the police. But law hasn’t stopped police violence because police don’t follow the law; law follows police.

By AUSTIN FISHER and DAVID CORREIA

If police reform could fix what’s wrong with policing in the United States, it would have already happened in Albuquerque. No police department in the U.S. has undergone more reform, over more years, than the Albuquerque Police Department.

None of it has worked. New Mexico consistently ranks among the states with the highest rate of police killings in the country, with APD accounting for roughly half of the deadly shootings here since 2015, according to the Washington Post. Despite this history and the failures of reform to fix it, New Mexico lawmakers and police reform groups continue to propose reform. But we’ve been down this road before.

Between 1987 and 1991, APD killed more people than the police departments in Tucson, Austin, El Paso, Colorado Springs and Tulsa combined. City officials turned to police reform to address the problem. They established new officer training protocols and raised hiring standards, but the only lasting result was a larger police budget and more cops on the street. Police shootings and killings by Albuquerque cops continued.

City consultants in 1997 found that over the previous 10 years, Albuquerque police had killed 31 people. No other department in the U.S. of similar size (or smaller) killed as many people as APD during that period. Following the subsequent Walker-Luna report, the city created a Police Oversight Commission and established an Independent Review Officer with the authority to make discipline recommendations directly to the police chief. These were cutting-edge reforms at the time.

But as with all previous efforts, police killings didn’t stop. They didn’t even slow down. In fact, Albuquerque police killed 23 people in the next six years. Police reform actually ushered in a period of more lethal policing in Albuquerque. And it wasn’t just lethal violence.

When Albuquerque’s first Independent Review Officer asked for use-of-force data from police, he found violence pervaded every facet of policing in the city. Despite more than 15 years of comprehensive police reform, he found that cops in Albuquerque used various levels of violence 551 times in 2004 alone. They tackled somebody to the ground nearly 200 times, used mace or pepper spray nearly 150 times, Tasered 85 people, punched or kicked 63 people, delivered 22 baton blows, sicced dogs on 12 people and killed three. And this was just the violence police actually reported using.

Instead of confronting this pattern, the city concluded that the reforms must have worked and therefore all of this violence must have been necessary. Between 2006 and 2010, Albuquerque cops killed 18 people, a majority of whom suffered from mental illness. No city official publicly acknowledged this as a problem. Between 2010 and 2014, APD killed more than 20 people.

The Civil Rights Division of the U.S. Department of Justice investigated APD and concluded in 2014 that despite imposing all the reforms that every police reform expert recommended, APD engaged in a “pattern and practice of unconstitutional policing.” It was long-standing and largely ignored by city officials, the DOJ concluded. The DOJ sued the city to force even more reforms on APD, and the parties eventually agreed to a court-supervised consent decree.

Under the decree, a federal judge appointed an independent monitoring team charged with tracking APD’s progress in implementing sweeping new reforms. The city abolished the old, toothless civilian oversight agency and created an entirely new independent agency with staff, attorneys and the authority to issue subpoenas and compel testimony by police. The city established “best practices” in police training, tougher use-of-force policies and new mechanisms to review police tactics. These have been, arguably, the most comprehensive and sweeping reforms imposed on any police department in the U.S. If the promise by police reformers that tougher reforms will fix police, APD should be the model.

Albuquerque has indeed become a model, but not the one police reformers promised. In November 2017, the monitoring team concluded that little had changed. Officers routinely turned off their body cameras, or muted the sound, while police supervisors routinely failed to review videos when evaluating uses of force. “The APD has reached a point,” the monitoring team wrote, “where they must consider the efficacy of their entire use of force oversight system and how it aligns with the reform progress to date. Especially given the attitudes of supervisors and commanders within that system to excuse behavior that contravenes and undermines compliance efforts.”

What explains the failures of reform in Albuquerque? Last spring and summer, after the police killings of Breonna Taylor, George Floyd and so many others, millions of people marched in the streets nationwide. Like the massive protests in 2014 following the police murder of Mike Brown in Ferguson, Mo., the focus of protestors’ ire was police. But unlike in 2014, last summer’s protests focused also on the problem of police reform. While some still demanded more police reform, many more did not. A central theme made of anti-police violence organizing all over the US. was the failure of police reform. Instead of more reform or demands to fix policing, many demanded the defunding of police budgets, the disarming of police arsenals, and the dismantling of the institution of police.

Demands to abandon policing and incarceration and instead fund a more equitable and caring approach to public safety have made their way into proposed legislation across the U.S. According to The New York Times, 27 states have adopted new police oversight laws. Cities including Boston, Los Angeles, Austin and Minneapolis have agreed to cut police budgets. According to the National Conference of State Legislatures, more than 175 police use of force bills are currently making their way through various state or territorial legislative bodies. That doesn’t even include the many bills addressing other hot-button police-related issues like qualified immunity, which protects police from lawsuits for their use of force, or bills that seek to limit or end the use of no-knock warrants, such as the one Louisville police secured when they killed Taylor in March 2020.

Many of these bills include the usual reforms that history and evidence tell us don’t work. They don’t work because they’re not about “fixing” police, they’re about “fixing” the police-community relationship, which is a lot like shooting someone in the back and then telling them “We should work this out, this problem between us.”

Senate Bill 227, sponsored by state senator Linda Lopez, is currently making its way through New Mexico’s Roundhouse, where Democrats control both houses of the Legislature and the Governor’s Office. The bill originally included provisions that would have banned the use of tear gas, or any other chemical weapons, and rubber bullets, and also would have prohibited police from using dogs to attack and bite people.

These bans would have been significant because even though they aren’t the sweeping changes preferred by many activists, they would have constituted an actual reduction in the police arsenal. Equally as important, they would have been an acknowledgement that police reform has been a failure. Tear gas, rubber bullets and K9s were each introduced into U.S. policing as reform measures. They were proposed and adopted everywhere as less-lethal alternatives to other weapons in the police arsenal. When reformers proposed that police use these weapons, they promised that their adoption would reduce police violence. But like the nearly universal adoption of lapel cameras and Tasers by police, they produced the opposite effect. Instead of reducing police violence, they just gave police new weapons and a bigger budget to go with them.

Nearly every state in the U.S. already limits the ability of police to use lethal force, but very few include outright prohibitions against the use of certain weapons or tactics, including New Mexico. Lopez’s bill would have changed that.

A new version of the bill Lopez presented to the Senate Health and Public Affairs Committee on Feb. 24, 2021, however, did not include any of these restrictions. While it still bans chokeholds and no-knock warrants, it no longer includes prohibitions on chemical weapons, K9s or rubber bullets.

Lopez took the bans out after meeting with Carter Bundy, the political and legislative director of the Association of Federal, State, County and Municipal Employees (AFSCME), the union that represents public-sector workers in New Mexico, including some local police departments and most prison and detention guards in the state. While the rest of the union movement is working to expel police from their unions because police have never been in solidarity with working people, AFSCME is working to defend the police arsenal and the ability of cops and jailers to use violence however they see fit.

“Chemical weapons are literally the only thing standing between our corrections officers and total chaos in jails,” Bundy told the Committee. “I want to thank the ACLU… and the sponsor for listening on some of those.”

Every police department, jail and prison in New Mexico uses or has access to tear gas or CS gas, weapons originally developed for military purposes and used widely during World War I. The horrors of their use led the United Nations to declare the use of chemical weapons a war crime. Tear gas and CS gas are only considered less lethal when used in open, ventilated conditions and when exposure is limited to a short duration. But this is not the way police use CS gas and other chemical weapons. They throw flash-bang grenades into homes. They fire gas into crowds using pressurized grenade launchers. Thousands of people are injured, and dozens are killed each year with CS gas used by police.

AFSCME’s opposition to the bill isn’t a principled stand for public safety. It’s an admission that policing and jailing in New Mexico require the use of weapons of war, and lawmakers agree.

Dogs are weapons of war, too. The 19th-century slave patrols used dogs to hunt escaped enslaved people. Today they use them against prisoners and “suspects.” Police and jailers, including those represented by AFSCME, often use dogs to bite people. As with the use of tear gas, police reformists have long promised that dogs would reduce police violence. Dogs constitute a non-lethal alternative to the use of more militarized units, such as SWAT, they tell us. But they’ve never had a dog try to eat them alive. In the years between the beginning of court-ordered police reforms in Albuquerque in 2014 and the end of 2017, APD officers ordered police dogs to bite 57 people, nearly 70 percent of whom were people of color. Six of the people mauled by police dogs were under 19 years old, including a 16-year-old child. All of these included horrific, and in some cases, debilitating injuries. AFSCME, led by Bundy, defended the use of K9s by cops and jailers to bite and maim people.

Police and jailers, including those represented by AFSCME, also frequently use rubber bullets for crowd control. The first thing to know about rubber bullets is they’re not made of rubber. They consist of a hard core, like wood or plastic and sometimes even metal or steel, covered in a softer outer tip or shell made of rubber, foam or sponge. Many departments also use what they call “bean bag rounds.” These are fabric bags full of buckshot that police fire from shotguns. One medical study of injuries from rubber bullets between 1990 and 2017 found “these projectiles caused significant morbidity and mortality during the past 27 years.”

The compromised version of SB 227 offers familiar reforms that have proven not to work in Albuquerque. The law, if adopted, would prohibit police from using deadly force unless as a last resort, and require departments to enforce the rule on themselves. This is a reformist measure that is already a central part of police training at the New Mexico Law Enforcement Academy, where nearly every police officer in the state trains to become a cop.

Other remaining provisions in the bill would prohibit the use of physical force by police except when necessary to prevent an imminent threat, conduct an arrest, or prevent an escape; establish a “duty to intervene” in the event an officer sees another cop using “unjustified force;” and require cops first exhaust all de-escalation techniques before using lethal force.

These are already official policy of every police department in New Mexico and their enforcement rests with the same police using that violence. Cops are already held to what they call the “Use of Force Continuum,” which is common policy in every police department in the state.

Representatives of both the national and New Mexico chapter of the American Civil Liberties Union testified in favor of the bill. Paige Fernandez, policing policy advisor in the ACLU’s National Political Advocacy Department, told the Committee it would provide “clear restrictions on less-lethal uses of force and lethal uses of force,” which is exactly what the ACLU said in 2014 when the DOJ was in Albuquerque. This claim imagines that new laws and policies will somehow constrain police. But the problem has never been that police operate without “clear restrictions on less-lethal force” or that laws don’t provide explicit limits on police violence.

Fernandez said the bill would “provide prosecutors in New Mexico with tools to hold law enforcement accountable when they behave in a way leading up to a use of force that is inappropriate, unjustified and unnecessary.” It would require any officer who breaks the law be immediately decommissioned, fired and disqualified from ever being an officer in New Mexico again. It also provides that an officer who violates the act may be charged with battery, aggravated battery, manslaughter, or murder. “By amending the justifiable homicide statute, this bill gives prosecutors the tools they need to hold police accountable when they kill people unjustifiably,” she said.

This is clear and tough language, but prosecutors in New Mexico, as elsewhere in the U.S., rarely hold police accountable for their violence despite plenty of laws available for them to do so. And grand juries rarely hold police accountable when they kill people “unjustifiably.” The solution isn’t more laws, it’s fewer police. But the ACLU has never supported specific proposals to reduce police budgets or police arsenals. While the ACLU has been tough on militarized policing, they’ve consistently refused to oppose the slow expansion of the police arsenal of weapons such as Tasers, tear gas, K9s and rubber bullets.

We asked Barron Jones, senior policy strategist with the ACLU of New Mexico, why the ACLU would support such a bill. He told us the ACLU doesn’t “have a problem with” the police or jailers using chemical weapons, rubber bullets, or K9s. They need these, he told us. “The bottom line is, it’s about passing legislation that is going to save lives,” he said.

Tell that to the people who were shot with “rubber bullets” by Los Angeles police last summer. According to an independent investigation of the Los Angeles Police Department’s policing of Black Lives Matter protests in the spring and summer of 2020, the police used 400mm projectile sponge round launchers, 37mm ricochet rounds, beanbag shotguns that deploy a “super shock” round, a .60-caliber “Hornet’s Nest Sting Grenade” that’s loud (130 decibels) and when fired careens in a 360-degree pattern. Like APD, LAPD wouldn’t reveal how many rounds they fired at various protests, and the investigators didn’t have the time to review the nearly 150,000 videos that police lapel cameras captured (so much for ACLU’s claim that lapel camera video will hold police accountable). Some estimates put the number of rounds fired at more than 3,500. The investigators did conclude that the skill to safely deploy less-lethal munitions exceeds the skill of most officers. The various less-lethal weapons LAPD uses, the same ones the ACLU wants in the hands of New Mexico cops, caused “significant injuries, some of which required surgery.” Less-lethal weapons are only less-lethal when used by well-trained personnel and too few cops are well-trained, they pointed out. And even those who were didn’t train under the conditions that cops usually use less-lethal weapons. But Jones told us that less-lethal weapons are “a much better solution” and produce “a much more favorable outcome.”

But according to a study published in BMJ Open, a peer-reviewed medical journal, police have killed at least 53 people with less-lethal munitions over the past three decades and permanently disabled 300 more. Physicians for Human Rights have called for a total ban on the use of rubber bullets by police. But Jones said the abolition of rubber bullets “had to come out” in order to get the bill passed.

The only thing that remains in the bill are the familiar reforms that have failed everywhere they’ve been tried. The bill includes a “totality of circumstances” provision, in which the courts can look beyond a police officer’s explanation for killing someone. According to Jones, the “courts can no longer consider only what a police officer says.” If the bill is passed into law, “everything must be taken into consideration when someone is killed.”

Police reform groups, such as the ACLU, have a strange relationship to law. They imagine it will magically stop police from killing and harassing people. If we could only pass a really strongly worded law, they tell us, that criminalizes certain police tactics and provides stiff penalties for those who violate it, we will finally fix police. The ACLU argued precisely this in 2014. It didn’t work then, and it won’t work now because it can’t work ever.

This legalistic version of reform assumes police scrupulously follow the law, but we know police don’t do that. Police routinely lie under oath (they even coined a special term for this, testilying), and they plant weapons on “unarmed” victims of their violence, like North Charleston, S.C. cop Michael Slager did in 2015 after he killed Walter Scott. The courts extend to police broad discretion in the enforcement of law.

Senate bill 227 is not the only police-related bill before the New Mexico legislature this session. There’s also Senate Bill 274, which would designate the New Mexico State Police, a department with its own long history of violence, as the default agency to investigate police shootings in the state. All of the provisions in this bill require police to police other police. Yet another proposal, the New Mexico Civil Rights Act, assumes we can overcome police violence and hold cops accountable by writing a really well-worded bill.

But police don’t follow the law; law follows police. The U.S. Supreme Court has made it clear that if a killer cop comes before a judge or jury, their evaluation of that violence must privilege the cop’s perspective. New Mexico Senate bill 227 “permits” a judge or a jury to consider someone else’s perspective, but it doesn’t overturn established legal doctrine and it doesn’t abolish the broad legal discretion courts have extended to police to decide when, where, how, and against whom their violence should be directed.

We asked why the ACLU wouldn’t just support a bill that, at the very least, makes it harder for police to kill people, rather do what they’re doing now, which is to support a bill that takes for granted cops will kill more people but might send a few more cops to jail because of it. “Litigation is what changes things,” Jones told us. “You shoot someone, they pay money, stuff starts to change.” This is another common feature of reformist proposals. Reformers admit that reforms have never worked in the past, and they even admit that police are broken in the present, but they promise that this time, unlike last time, with these new reforms, similar to the last reforms, will finally do what no reforms have ever done before, which is finally fix police. But we’ve had 35 years of these kinds of promises in New Mexico and they’ve never worked. At this point, maybe the ACLU should just start formulating their proposals using a Ouija board. At least that’d be more honest.

The monitor who evaluates APD’s compliance with the Court-Approved Settlement Agreement (CASA) has come to call APD “Counter-CASA cops.” They refuse to “reform” their practices. They see nothing wrong with how they police the streets. If anything, they think they should be “unleashed.” The city just hired a new chief, a man who once killed a child in a church during a “welfare” check. There’s no fixing police and reforms only make it worse. The lessons we should have learned from the past 35 years of failed police reforms should be derived from the evidence, and the evidence is crystal clear. Every police reform imposed on police in New Mexico has increased police budgets, expanded the police arsenals, and put more cops on the street. Every police reform has proposed hiring more cops to better police other police. Barron Jones is right about one thing, we need alternatives. The ACLU thinks those alternatives should be different weapons in the hands of cops. But if we want meaningful public safety, we have only one alternative: fewer and fewer cops, until there are none. Maybe next year.

Austin Fisher is an independent journalist based in Santa Fe. David Correia is a researcher and writer who organizes with AbolishAPD

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