DOJ monitor: APD is regressing

APD ignores its own disciplinary rules

-- APD is willing to go through almost any machination to avoid disciplining officers who violate policy or supervisors who fail to note policy violations or fail to act on them in a timely manner.

-- Compliance with settlement agreement falls.

-- Compliance was greater two years ago.

-- Department fails to implement monitor's recommendations.

-- Monitor has to keep making the same recommendations over and over.

By Dennis Domrzalski

The independent monitor in the Albuquerque Police Department's reform case has issued another report on the department's reform progress, and like the last report, it says APD is a mess, is regressing when it comes to complying with the CASA (Court Approved Settlement Agreement), and is violating its own rules and standards in order to avoid disciplining officers.

The monitor, James Ginger, said that APD's compliance with the CASA is going backwards and that the department is failing to implement the recommendations contained in the monitor's reports.

It's a damning report. This report covers the period from August 2020 through January 2021. Here are excerpts from Ginger's report:

Discipline

At this point, the disciplinary system at APD routinely fails to follow its own written policy (guiding disciplinary matrices) and virtually decimates its disciplinary requirements in favor of refusals to recognize substantial policy violations, and instead, often sustaining minor related violations and ignoring more serious violations. In other cases, APD simply defies its own written guidance regarding discipline, for example implementing “discipline” well below that required by its own disciplinary matrix. Examples of these Counter-CASA processes include:

• Replacing a matrix-required 8–32-hour suspension with a written reprimand;

• Refusal to recognize repeat offenses (which by policy require enhanced penalties);

• Failure to consider “aggravating circumstances” in determining appropriate discipline, but nearly always considering “mitigating circumstances”;

• A virtual shutdown of investigations in IAFD, possibly delaying disciplinary action for use of force violations until discipline is “time-barred” by the union contract; and

• Charging lessor included policy violations, instead of the (often more fitting) more serious of the policy violations (see, for example, p. 243, sanctions imposed for [IMR-13-16]).

In short, APD is willing to go through almost any machination to avoid disciplining officers who violate policy or supervisors who fail to note policy violations or fail to act on them in a timely manner.

Interestingly, we note this aversion to discipline does not seem to apply to civilian personnel, who are often subjected to maximum penalties for relatively minor violations.

Use of Force

More importantly, it continues to be apparent that APD has not had and currently does not have an appetite for taking serious approaches to control excessive or unwarranted uses of force during its police operations in the field. Command and control practices regarding the use of force continue to be weak. APD continues to lack the ability to consistently “call the ball” on questionable uses of force, and at times is unable to “see” obvious violations of policy or procedure related to its officers’ use of force. We have consistently noted these issues in our highly detailed bi-annual monitoring reports, and each paragraph found not in compliance contains specific recommendations that APD could implement to reduce unwarranted uses of force. Unfortunately, we find the need to continually make the same recommendations, often times over and over, as APD seems either unwilling or unable to effectively assess, identify, and remediate officers who over-use force. Again, this reporting period, we have made dozens of recommendations, many of them made multiple times in the past. After six years, while progress has been made, i.e., new policies and new training have been implemented, and the Force Review Board is demonstrating that is willing to stand for heightened scrutiny of cases of officer-use of force, there remains much to do.

Ignoring monitor's recommendations; clear and deliberate indifference

We do note, however, that in IMR-12 we made twelve recommendations for improvements to the IA functions at APD. Those twelve recommendations remain in IMR-13. This is a recurring problem with APD. The monitor includes dozens of recommendations in each monitor report. Unfortunately, in some areas of compliance, we are required to make the same recommendations over and over because APD simply fails to address these recommendations in any way and refuses to implement processes of their own designed to achieve a reduction in unwarranted use of force. For example, the ten recommendations we made regarding “fact-based discipline” in IMR-12 are repeated again in this monitor’s report. The same holds true for multiple paragraphs of our CASA analysis. We recommend, APD demurs, and we continue recommending change, without reciprocal effort by APD.

To the monitor, this constitutes clear evidence of deliberate indifference to the requirements of the CASA. Again, during this reporting period, we provided APD with highly detailed step-by-step recommendations regarding the use of force investigations and supervision at all levels of the department, among other critical issues. Despite this advice, APD has actually lost ground in its compliance efforts as it relates to training related to and operational implementation of the requirements of the CASA.

The same holds true for the requirements in Paragraph 202 relating to the development of and adherence to a written disciplinary matrix. We have, again this reporting period, listed the same recommendations for failure to adhere to a meaningful disciplinary matrix. Our recommendations on many of the CASA’s requirements are repeated time after time in subsequent monitor’s reports, and APD effectively continues to ignore the monitor’s recommendations or to develop and implement disciplinary processes of their own to meet the requirements of the CASA. The fact that the APD need not implement the monitor’s recommendations is indisputably true; however, should they fail to do so, it is incumbent on APD to implement some type of reliable and effective mechanism to respond to findings of non-compliance. Again, during this reporting period, we have made dozens of recommendations. At some point, APD will need to determine whether they will work to implement those recommendations or will develop their own recommendations for change, and most importantly, implement change-oriented processes. To fail to do so will simply extend the need for external monitoring. While it is true that the “average” timeline to completely comply with a series of court-mandated reforms to a police department is in excess of eight years, that time is rapidly approaching, and APD has significant work to do to reach compliance with the Court Approved Settlement Agreement. It is well past time for APD to quit “nibbling around the edges” and make a true commitment to reform.

Compliance: going backwards

This monitor’s report can be synopsized in a single sentence. Due to a catastrophic failure in training oversight this reporting period and similar failures at the supervisory and command levels of APD, the agency suffered a 9.9 percentage point loss in compliance elements related to the training and supervisory functions at APD and a 7.8 percentage loss in overall compliance (see Figure 2.1, below). Overall, there is an argument to be made that operational compliance rates have held relatively steady, at slightly less than 60 percent, since IMR-8, two and one-half years ago.

The most critical issues confronted by APD in its compliance efforts this reporting period are in training, supervision, and command oversight. As frequent readers of the monitor’s reports will note, supervision and oversight are two of the most important keys to full compliance.

Section 4.1 provides a discussion of the overall compliance status of APD as of the 13th reporting period. As of the end of the 13th reporting period, APD has experienced a drop in compliance levels in both secondary (training) and operational (actions in the field) compliance. APD achieved primary compliance in 100 percent of the applicable paragraphs of the CASA. Primary compliance relates mostly to development and implementation of acceptable policies (conforming to national best practices). APD is in 82 percent Secondary Compliance as of this reporting period, which means that effective follow-up mechanisms have been taken to ensure that APD personnel understand the requirements of promulgated policies, e.g., training, supervising, coaching, and implementing disciplinary processes to ensure APD personnel understand the policies as promulgated and are implementing them in the field. This Secondary Compliance figure represents a 9.9 percent reduction in Secondary Compliance from IMR-12 to IMR-13. Operational Compliance with the requirements of the CASA for the 13th reporting period has also fallen from 64 percent in IMR-12 to 59 percent in IMR-13. This means that 59 percent of the time, field personnel either perform tasks as required by the CASA or that when they fail, supervisory personnel note and correct in-field behavior that is not compliant with the requirements of the CASA.

These declines in compliance levels come despite intensive and extensive and intensive “hands-on” guidance and advice from the monitoring team. The bottom line is somewhat shocking. Operational compliance levels for the 13th reporting period are lower than the compliance figures for the 9th reporting period. Obviously, operational compliance is the most important of the three compliance levels.