City, DOJ agree on outside team to help oversee APD

Investigators would aid internal affairs officers

At many law enforcement agencies in the U.S., there are police who police the police.

In Albuquerque, there will soon be police who police the police who police the police.

The city and Department of Justice are proposing to bring in an outside team to temporarily assist the Albuquerque Police Department’s internal affairs investigators, correct issues as they arise, and train detectives on how to better do their job.

A stipulated order — filed in federal court and agreed to by the city, the Department of Justice and the independent monitor overseeing the police reform effort — lays out the proposal.

It comes in response to a scathing report published by the independent monitor in November that said APD had failed at every level to police itself. The monitor evaluates the progress the city has made complying with the Court Approved Settlement Agreement it entered after the DOJ found in 2014 that officers had a pattern and practice of excessive force.

In his latest report, monitor James Ginger — looking at the period from Feb. 1 through July 31, 2020 — found that officers failed to report use of force, detectives in the Internal Affairs Force Division were “going through the motions” in their investigations, APD leadership allowed subpar work and the then-chief of police signed off on it.

Partly because of that report, Chief Michael Geier was asked to step down, and his deputy chief, Harold Medina, is now serving as interim.

In a recent statement, Chief Medina said the department welcomes the resources and expertise as they make changes to the use of force investigations.

“While this is a temporary solution, our longer-term goal is to build an inter

nal investigative process that addresses the overall reform of the department,” Medina said.

Agreement with DOJ

Assistant City Attorney Lindsay Van Meter said that initially the DOJ lawyers said Ginger’s report findings are grounds to hold the city in contempt, which could lead to its being put under receivership.

Instead, the parties worked out an order proposing the creation of an External Force Investigation Team, or EFIT, which will be made up of investigation experts and overseen by an administrator. Its members will accompany APD’s internal affairs investigators to the scene after officers use force that causes injury, hospitalization or death.

A status conference about the order that had been scheduled for early February was vacated and U.S. District Judge James Browning will still need to sign off on it before it can be implemented. But the city is hoping to have an administrator in place in early May to begin hiring investigators.

APD’s internal investigators will take lead at the scene but will be required to share all documents, evidence and investigative notes with the external team.

“For each use of force investigation, EFIT shall evaluate the quality of IA force personnel’s investigations and immediately notify APD and APD’s legal counsel of any deficiencies or misconduct by IA force personnel related to their investigations,” the order says. “APD shall promptly address these deficiencies or misconduct through corrective action or discipline, consistent with the (Court Approved Settlement Agreement), APD policy, and the (Collective Bargaining Agreement).”

The order says that the city should try to return full responsibility to the internal investigators within nine months but that the time could be extended if needed.

“If we’re successful with this order, it will be a massive jump in the level of compliance,” Van Meter said. “I don’t think it gets us to 100% ... there are other paragraphs we have to work on still but it will be a massive jump. And that is what we’re looking to do.”

‘Knee-jerk’ reaction

Shaun Willoughby, president of the Albuquerque Police Officers’ Association, acknowledged that the department has room for improvement but said he believes this order is a “knee-jerk” reaction to the criticisms in the last report.

“I don’t think we need it,” Willoughby said. “Could we do better? Yes. Could we invest more? Yes. Is this a challenge? Yes, it is. We’re an understaffed police department, with a crime rate that is unprecedented in one of the most challenging processes in bureaucracies that this police industry has to offer.”

He said that internal affairs detectives are unhappy about the plan and that some want to transfer back to the field. He said they feel like they’re being punished even though they were not given adequate training to do what they needed to do. Part of the order mandates that APD increase its Internal Affairs Force Division to 25 detectives — Van Meter said it currently has 15.

“They’re so frustrated, they don’t know how it’s going to work,” Willoughby said. “They’re being told they don’t do a good job. … It’s my fundamental belief that the Albuquerque Police Department has to prove to this community above all that we can police ourselves. So that’s a huge cornerstone in this process. What we are witnessing is just another hurdle that is going to elongate this process and cost the taxpayers more money.”

For their part, the city attorneys agreed that the investigators weren’t given enough training and said there’s a big difference between what they were doing while investigating a backlog use-of-force cases as practice and what they are being asked to do now. The backlog cases could not result in any discipline, because their deadlines under the collective bargaining agreement with the police union had passed.

“We need to be ensuring that we have the appropriate system in place where we can differentiate when someone’s intentionally obstructing versus when somebody doesn’t understand,” City Attorney Esteban Aguilar said. “This is complicated stuff. It’s not like a light switch — again we have a use-of-force policy, just because it goes live and active doesn’t mean that everybody understands that it’s going to get started on Day One. … What we’re dealing with are these fundamental habit changes.”

Few violations found

Over the past several years, IA investigators have found few instances of officers using force that they shouldn’t have. According to the last court-mandated use-of-force report, published in October 2020, in 2018, 3.7% of force cases were found to be out of policy. In 2019, it was 1.7%.

Asked whether the attorneys expected these percentages to rise due to more rigorous internal investigations, Van Meter said that in the short term, yes.

“It does appear that the failure is to call out-of-policy force out of policy,” she said. “That being said, there’s also a feedback loop, and once officers understand the rules — what is out of policy — that means they’re likely to change their behavior and for them to not do that conduct anymore.”

Van Meter said the details of the external force investigation team — such as how many investigators will be hired (more than three, fewer than 30) and how much they will get paid — are still being worked out. Ginger will also receive another contract and additional funding.

He has been paid about $7.5 million since 2015.

Aguilar stressed that while he doesn’t agree with every adjective Ginger used to criticize the department, the data he used in his report was accurate and the city doesn’t contest his findings.

“What I want to push back on is the narrative that the monitor is extending this or changing the goal posts or changing the marks in a way that is prolonging the process for his own financial gain,” Aguilar said. “He’s an officer of the court, he represents the judge, and he is the eyes and ears. So he has a responsibility to accurately portray that information and communicate that.”

Furthermore, Van Meter suggested that there is evidence that the reform effort is having some effect, namely that there has been a reduction in high-dollar payouts in lawsuits for excessive use of force over recent years. In the years leading up to the DOJ investigation and settlement agreement the city spent at least $28 million on officer misconduct lawsuits.