Attempt to muzzle police union fails

By Dennis Domrzalski and Charles Arasim

-- Victory for free speech.

-- More than 100 officers to leave APD this year.

-- Officers are miserable working for APD.

-- DOJ says APOA has a First Amendment right to criticize the reform effort.

An attempt to prevent the union that represents Albuquerque police officers from criticizing the police reform effort, and to punish the union for exercising its First Amendment rights, has failed.

At a federal court hearing Wednesday on a request to punish the union for launching its “Crime Matters More” ad campaign, both the U.S. Department of Justice and the city of Albuquerque said they had no appetite to go after the Albuquerque Police Officers' Association union.

In fact, DOJ lawyer Paul Killebrew said the APOA, and the officers it represents, have a First Amendment right to criticize the reform consent decree, or Court Approved Settlement Agreement (CASA), and were merely exercising that right by launching the ad campaign.

And Killebrew told U.S. District Court Judge James Browning, who is overseeing the reform case, that the APOA is not a legal party to the CASA, and thus is under no obligation to defend it as is required by its provisions.

The hearing was a blow to certain activists, including failed mayoral candidate Pete Dinelli, ACLU head Peter Simonson, lawyer Peter Cubra and state legislator Antonio “Mo” Maestas, to punish the union for exercising its free-speech rights. Dinelli, a blogger, had written that Judge Browning should hold the union in contempt of court for daring to criticize the CASA. The others had argued that the APOA was a legal party to the reform case and was bound by the CASA's provisions to defend it, and not to criticize it.

But Killebrew reminded Browning that last year the judge issued a ruling saying that the APOA was merely an intervenor in the reform case, not a signatory to the CASA.

Here's what Killebrew had to say about the APOA's ad campaign:

“The Albuquerque Police Officers' Association, and indeed, the officers of the APD who are its members, have a First Amendment right to speak on a matter of public concern, and they are exercising those rights. I will say that it was not a surprise to me personally to know that the APOA would like the city to renegotiate some terms of the CASA. That has been a flavor of their position from the outset, and so I don't take that as a surprise. I will say that at any time we are willing to hear out anyone's proposals for how the CASA can better achieve its aims and whether modifications may be necessary.

Then Killebrew demolished the argument that the APOA can be held in contempt for campaigning against the reform effort. Failed mayoral candidate Dinelli, who likes to remind people that he is a lawyer, has wanted the union punished, and Killebrew's words must have made him stomp his feet. Here's what Killebrew said:

“Much of the argument (of why the APOA can be held in contempt) hinges on the proposition that the APOA is a party to the CASA due to the signings and some filings in this case. This issue has actually been explored by the parties and ruled upon by the Court. Document number 500 on the Court's docket, which is the United States' response to a memorandum filed by the APOA, on page three, our pleading has a heading, in bold, 'The APOA is Not a Party to the CASA.' The pleading then says that the APOA is not, and has never been,a party to the CASA. There is a 'Shall Defend' provision in the CASA that requires the parties to the CASA to defend it in the face of challenges. But that binds the parties to the consent decree, not the parties to the litigation. So we do not view the APOA as having that responsibility. And in fact, if the APOA were a party to the CASA, then they would have some entitlements under the CASA we have already decided they don't have, such as the right to object to policies that come before the Court under the terms of the CASA. Document number 605, as I mentioned earlier, is where the Court resolved the issue, is the Court's memorandum opinion order. On page 160, the Court said, 'Intervention gives the Officers' Association merely the right to present its objections to the court, it does not make the Officers' Association a party to the settlement agreement.'”

APOA President Shaun Willoughby then told Judge Browning that officers are fleeing APD. For the past 20 years, Willoughby said, APD has lost an average of 60 officers a year to retirements, terminations and job and career changes. Last year, APD lost 80 officers, and this year, “we are going to break a hundred,” Willoughby said.

“There is a significant problem in the city of Albuquerque,” Willoughby added. “We cannot sustain compliance levels with staffing. It is my opinion that our leadership doesn't know or understand how much of an administrative burden they have put on this agency.

“Our young officers tell me that they're just here to get their training, two years of experience, and they're lateraling to another department within the country. Our older officers are retiring as fast as they can, and the officers in the middle are constantly searching for other jobs. There is a problem at the Albuquerque Police Department, and it is going to get worse.”

Willoughby added, “(at an earlier hearing) I told you that the officers hated every minute of it (the reform effort). That is still a fact today. Your Albuquerque police officers are absolutely miserable in working at the city of Albuquerque's Police Department.”