'There is an elephant in this room that is not being addressed' — U.S. District Judge Robert Brack
After Years of foot-dragging, DOJ Now Praises APD on Reforms
Turnabout follows Attorney General’s statement that consent decrees can ‘reduce morale’ among cops
See earlier story: APD Lying to Federal Monitor
The U.S. Department of Justice today stunned a federal courtroom by praising the Albuquerque Police Department’s progress in reforming itself. The DOJ position followed a recent report to the court that APD has deliberately undermined the reform process.
The abrupt turnabout came in the first federal court hearing since U.S. Attorney General Jeff Sessions announced the DOJ would back off on consent decrees with more than a dozen police departments found to have violating civil rights through the unconstitutional use of force.
APD entered into such an agreement with the DOJ in November 2014 and for the last three years has been haltingly making progress.
James Ginger, the independent monitor appointed by both the City of Albuquerque and the DOJ to oversee the APD reform process, has charged that APD has dragged its feet repeatedly. In his most recent report, Ginger accused APD of lying to him and, by extension, the federal judge overseeing the case.
Specifically, Ginger uncovered a secret directive by APD brass to ignore elements of the reform agreement. In a nutshell, Ginger’s 405-page report, which was released earlier this month, says APD command staff wrote a special order subverting the settlement agreement, denied its existence when asked about it and then refused to give the monitor a copy of the subversive order.
Peter Simonson, head of the New Mexico ACLU and a member of APD Forward, a group formed to keep track of APD reform, said he was “shocked” by the DOJ’s courtroom turnabout.
“We’re looking at the most damning report in two years and the DOJ instead of looking at APD’s most critical deficiencies, chooses to highlight its achievements,” Simonson said.
Even U.S. District Judge Robert Brack, who is overseeing the reform process and in whose courtroom today’s hearing occurred, spoke up about the disconnect between earlier findings of “deliberate non-compliance” by APD and DOJ’s praise of the department’s progress.
Luis Saucedo, a lawyer with the DOJ’s civil rights division in Washington, D.C., praised APD’s “tremendous progress.”
After about 15 minutes of such praise, Brack interjected, “There is an elephant in this room that is not being addressed, the mention of the deliberate non-compliance in the monitor’s report by APD.”
As an example, Brack noted that Ginger’s report mentioned that APD can’t yet decide what a neckhold is. Neckholds, like the one that killed Eric Garner in New York City in July 2014, are specifically barred by the APD settlement agreement.
“We have not seen the city retreat from its commitment to bar neckholds,” Saucedo said. “APD is looking for a better definition because it feels that all neck contact constitutes a neckhold.”
Brack then interjected: “We’re two years into this and we still don’t have a definition (of neckholds)?”
Brack brought up the covert special order. Saucedo cited APD’s workload as a possible reason for its existence. Brack responded: “It’s not OK to say that they (special orders) don’t exist. The city does not get to say that because it is hard we are going to do it differently and we are not going to tell anybody about it.”
Even Ginger seemed to go lightly on APD during today’s hearing, despite nearly two and a half years of expressing frustration over APD’s recalcitrance. Ginger failed to mention in his presentation anything about the “deliberate noncompliance” of his most recent report and he failed to mention the covert special order.
Saucedo said: DOJ “is not endorsing the view of deliberate non-compliance,” signaling that he disagrees that APD has engaged in foot-dragging.
“We are fully committed to this reform process and seeing it through,” Saucedo said.
Pete Dinelli, a former city councilor and chief public safety officer for the city, called today’s stance by the DOJ “a dramatic shift.”
“The DOJ should be asking themselves who are they representing now, APD or the citizens of Albuquerque,” Dinelli said.
See earlier story: APD Lying to Federal Monitor
Things get murkier
During the afternoon session, things became more confusing. City Attorney Jessica Hernandez said the situation regarding the special order was the result of a misunderstanding between Ginger and APD’s staff. Ginger’s staff, Hernandez said, asked for a specifically numbered special order, and got the number wrong. So when APD personnel tried to find the order, they couldn’t. Eventually, APD sent Ginger’s team all of the special orders the department had approved.
“We don’t believe we were deliberately non-compliant,” Hernandez said.
Ginger said he didn’t buy Hernandez’s explanation. He told Brack that his staffers asked for the special order both by number and by category.
“My staff is trained and knows what to ask for,” Ginger said. “We asked for it not just by number but by category. I’m not convinced that the explanation is accurate.”
Brack also asked Ginger why, during his presentation in the morning, he didn’t mention either the special order or the allegation in his report that APD had been in deliberate non-compliance with the settlement agreement. “I can’t have that attitude, the process can’t have that attitude,” Brack said of the alleged non-compliance.
“I do stand by it [the allegation],” Ginger said, explaining that he chose his words carefully and that APD had to be asked several times for information before supplying it. “I’m concerned about asking several times and not getting responses. I hope it is over.”
Brack said he was optimistic and pleased that APD had made some progress on complying with the settlement agreement. He noted that the department is in 47 percent “operational compliance” with the settlement agreement. APD needs to get to a 95 percent compliance rate and must maintain that for two years before the DOJ can consider leaving town.
“Now is the time when the rubber hits the road,” Brack said, adding that reaching a 95 percent compliance rate will be the most difficult part of the reform process.
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