405-page report is the monitor's most damning report to date on APD's attempt at reform.
The independent monitor’s latest report on APD’s attempt at reform says it loud and clear:
Someone in Chief Gorden Eden’s command staff has been lying to the federally appointed monitor, James Ginger.
And that someone in Eden’s command staff is engaged in warfare against the reform process being overseen by a U.S. District Court judge.
In a nutshell, the report says: The command staff writes a special order subverting the settlement agreement, denies its existence when asked about it and then refuses to give the monitor a copy of the subversive order.
By most definitions of “lying,” that’s lying:
The allegation involves how often APD sergeants must review bodycam recordings of their officers.
You decide. Here’s what Ginger’s 405-page report says of APD’s behavior (emphasis ours):
“During the process of reviewing OPA [APD’s Office of Policy Analysis] meeting minutes, the monitoring team learned of an APD Special Order 16-75.
“SO-16-75 unilaterally (without notice to or approval by the monitor and the Parties) changed the required review rate for sergeants from two per month per [sergeant], to two per squad per month.
“The reader should note that the monitoring team discovered this out-of channels process via review of APD’s routine course of business documents, i.e., meeting minutes for the ‘APD Office of Policy Analysis Meeting Minutes Agenda for 16-06, dated 11 OCT 16,’ which clearly stated: ‘Updated the policy to match Special Order 16-75 that supervisors are to review two recordings per month from their assigned squad.’
“When the monitoring team asked for a copy of the ‘Special Order,’ we were told ‘it doesn’t exist,’ and that we ‘must be mistaken.'”
Ginger’s report continues:
“The monitoring team forwarded a copy of the meeting minutes date and memo number. We have never heard back from the City on this so-called ‘mistake,’ or on our request for a copy of SO 16-75. Thus, it is clear that APD had promulgated a Special Order in direct contradistinction to the [settlement agreement] policy as approved by the monitor and the Parties.
“This seemingly minor revision, again without notice to the Parties or the monitor, reduced the required review rate for an average squad of officers from 16 per month to two per month.
“This action by APD stands in direct refusal to comply with this paragraph’s ‘notice and review’ clause. The monitoring team views such hugger-mugger changes as deliberate and in direct contradistinction to the requirements of the [settlement agreement].
“These were actions deliberately non-compliant with the CASA and were taken by the City completely without notice to the monitor or the Parties.”
What makes APD’s subversion of the settlement agreement Mayor Richard Berry and Eden entered into in November 2014 egregious is that it is a legally binding contract with the U.S. Department of Justice under the oversight of a federal judge.
It’ll be up to U.S. District Judge Robert C. Brack to decide whether Eden and his command staff lied and have been trying to subvert the reform process.
Brack will hold a hearing on the case on May 10.
APD Issued Covert Special Orders
Ignores Civilian Oversight
The independent monitor in the Albuquerque Police Department’s reform settlement agreement with the federal government on Tuesday once again ripped the department, this time accusing APD’s command staff of deliberating subverting the reform process in numerous instances.
In his most damning attack to date on APD, the monitor, James Ginger, accused the department of subverting the reform process by issuing “covert special orders,” denying the existence of the orders, and exhibiting a “near total failure” to accept civilian oversight.
The “deliberate non-compliance” with APD’s settlement agreement with the U.S. Department of Justice is the direct fault of the department’s command staff, Ginger said in his fifth report on APD’s progress in reforming itself.
“During the fifth reporting period, the monitoring team has noted a palpable shift in APD’s approach to compliance, made noticeable by specific actions on the department’s part that have slowed compliance achievement substantially,” Ginger’s report, which covered the period from August 2016 through this January, said.
The report to U.S. District Judge Robert Brack detailed eight areas in which APD has deliberately tried to derail the reform process. Perhaps the most damning accusation was the “Use of covert ‘Special Orders’ to subvert policies agreed to by the Parties and the monitor,” Ginger’s report said.
The report said that APD issued a special order that reduced the number of officers that had to be reviewed by sergeants each month and then denied to the monitor’s team that it had issued the order.
The special ordered was issued “unilaterally (without notice to or approval by the monitor and the Parties) [and] changed the required review rate for sergeants from two per month per officer, to two per squad per month,” Ginger’s report said, adding that the monitoring team found the special order by reading the minutes of the October 2016 meeting of APD’s Office of Policy Analysis.
But “When the monitoring team asked for a copy of the ‘Special Order,’ we were told ‘it doesn’t exist,’ and that we ‘must be mistaken,’” Ginger’s report said.
“The monitoring team forwarded a copy of the meeting minutes date and memo number. We have never heard back from the City on this so-called ‘mistake,’ or on our request for a copy of SO 16-75,” Ginger’s report continued. “Thus, it is clear that APD had promulgated a Special Order in direct contradistinction to the CASA policy as approved by the monitor and the Parties.”
The report added: “This action by APD stands in direct refusal to comply with this paragraph’s “notice and review” clause. The monitoring team views such hugger-mugger changes as deliberate and in direct contradistinction to the requirements of the CASA. These were actions deliberately non-compliant with the CASA and were taken.”
The group APD Forward, which is monitoring APD’s progress at reform, blasted the department for its efforts to subvert the settlement agreement.
“It’s no surprise that accountability is a critical problem with APD when Chief Eden is publicly blaming judges and the press for problems within his Department,” said APD Forward spokesperson Steven Robert Allen, Director of Public Policy at the ACLU of New Mexico. “This unwillingness of Chief Eden and his command staff to embrace reform or to demand accountability from the Department is preventing APD from moving towards true and lasting culture change.”
Here are the six other areas that Ginger’s report ripped APD about:
* “Extended delays in revising the department’s use of force policy, including, issues of “neck holds,” show of force, distraction strikes, use of force against handcuffed individuals, use of advisements and warning prior to use of force (where practicable), and de-escalation of force as resistance decreases, and allowing, where practicable, time for suspects to submit prior to using force;”
* “Passive-aggressive refusals to respond to and remediate problematic policy guidance provided by such documents as APD’s “Underuse of Force” policy document;
* “Reluctance to remediate problematic training for supervisory personnel by performing a system-wide review of problems noted in previous [reports] related to training and conducting meaningful and targeted “retraining” to supervisors, i.e., “addressing the gaps,” as the monitoring team has advised;
* “Continued resistance to responding to the monitoring team’s direct and clear notice of the need for appropriate re-training, counseling, or disciplinary action for clearly “out-of-policy” use of force events;
* “A tendency to see serious, problematic, and critical “systems failures” (such as the Force Review Board’s often fragmented and ineffective reviews of officers’ uses of force) as “water under the bridge,” or “someone else’s problem,” resulting in APD repeatedly failing to address critical issues noted in the monitor’s reports;
* “Lack of a central point of command responsibility for compliance, i.e., to date, the monitor seems to have no counterpart inside APD. There seems to be no one person, unit, or group with responsibility and command authority to “make change happen,” and,
* “A near total failure to take seriously the CASA’s recommendations regarding integrating POB/CPOA processes into the APD’s internal investigations and systems improvement functions.”
Here’s our earlier story on Ginger’s report:
The Albuquerque Police Department is in “deliberate non-compliance” with its settlement agreement with the U.S. Department of Justice when it comes to banning or correcting certain use-of-force techniques, including neck holds, the independent monitor in the case reported Tuesday.
And, the department’s command staff has repeatedly failed to identify and review improper uses of force by officers, the independent monitor, James Ginger, said in his fifth report on APD’s progress in reforming itself.
Ginger laid the blame at the department’s command staff, saying his team reviewed 16 use-of-force incidents from August 2016 through January of this year and found that in none of those cases did APD show an effective command-level review process.
But it was APD’s refusal to ban of neck holds, which can be lethal and which are banned by the settlement agreement, that caused Ginger to accuse APD of deliberately trying to thwart the reform process.
“In the opinion of the monitor, such deliberate resistance, despite multiple discussions and debate of the topic [neck holds], and despite clear and unequivocal definitional guidance in the CASA constitutes deliberate non-compliance on the part of APD and the City. Non-compliance on this issue comes from the command-level at APD,” Ginger’s report said.
The report detailed APD’s intransigence on the issue:
“Neck holds are another use of force tactic that APD appears to be more than hesitant to ban by policy and supervisory practice,” Ginger’s report said. “The six-month review of APD’s use of force policy has been seriously delayed as APD attempt to ‘debate’ with the monitoring team and DOJ what a neck hold is.
“The monitoring team has turned back several attempts by APD to allow neck holds by policy, despite a clear and unambiguous prohibition of neck holds by the CASA, and a clear and unambiguous definition in the CASA of a neck hold as deadly force.”
Ginger’s report continued: “Despite that clear and convincing level of detail, the monitoring team finds ourselves at a virtual impasse in getting a revised use of force policy through the review process because of APD’s insistence that neck holds do not constitute lethal force. As a result, clear, concise and compliant use of force policy direction is “missing in action” for officers of the APD at this time.”
Force against handcuffed prisoners
While the settlement agreement and APD policy ban the the use of force against handcuffed prisoners, some officers continue to violate the policies, and supervisors aren’t catching the infractions, Ginger’s report said.
“Use of force against handcuffed prisoners is prohibited by the CASA [Court Approved Settlement Agreement], and in the instance of this type of force, is also prohibited by APD policy, where it is defined as a serious use of force, “Ginger’s report said. “We continually see instances involving such tactics in the case files and OBRD [on-body recording devices] videos we review in the course of our monitoring processes. It appears that APD supervisors are inured to this process, failing more often than not, to note and correct it.”
As he has in past reports, Ginger said that APD’s command staff is failing to properly monitor and investigate use of force incidents by officers. His team reviewed 16 use-of-force cases and found effective supervision lacking in all of them.
“A review of 16 reported and documented use of force cases reviewed thoroughly and painstakingly by the monitoring team this reporting period showed that zero percent of those cases showed an effective command-level review (at the Area Stations) of the officers reported uses of force,” Ginger’s report said.
“More concerning, based on the incidents reviewed by the monitoring team this reporting period zero percent of command personnel, who should have ordered additional investigation to resolve inconsistencies and improve the reliability and credibility of supervisory personnel’s use of force investigations did so! Few systems can survive such a failure rate.”
More deliberate non-compliance
Ginger said that despite constantly urging APD command staff to review three use-of-force cases, the department hasn’t acted.
“We note with more than a little frustration that, after five attempts to prompt a legitimate follow-up on cases that the monitoring team have identified as problematic that two of the three remain unresolved after nine months! To our minds this constitute a clear example of deliberate non-compliance,” Ginger’s report said.
“While the APD has done the job on the surface, the deep dive into communications processes, assessment capacities, findings development, problem-solving, and routinization of taken-for-granted command and control practices in other policing agencies has been missed, over-looked, or deliberately avoided by APD.”
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