Copyright © 2017 Albuquerque Journal
The clock was ticking for Albuquerque police Chief Gorden Eden to issue a special order instructing officers to issue citations – instead of making arrests – for certain misdemeanor crimes.
The city had entered into a settlement agreement in March that, if approved by a federal judge, would eventually bring an end to the city’s role in the McClendon case, which is a more than 20-year-old lawsuit over jail conditions and arrest procedures in Bernalillo County.
The case affects city and county law enforcement, especially in regard to the treatment of mentally ill people.
The settlement calls on Albuquerque police to take several actions – and one was for the chief to issue a special order explaining that people suspected of nonviolent misdemeanor offenses, not including drunken driving, will be issued citations instead of being arrested “when there are no circumstances necessitating an arrest.”
The settlement agreement was signed March 28 and gave the chief 45 days to issue the order, which he issued 43 days later on May 10.
The document hasn’t been approved by a judge or filed in court.
City and police officials have pointed out that the special order makes no changes to police policy. They said former APD Chief Jerry Galvin in 2001 issued a similar order, and since then department policy has been to advise officers to issue citations for such crimes where appropriate, and officers have discretion in deciding when to arrest someone.
“If there is any part of a situation that makes an officer think an arrest is warranted, they’ll make the arrest,” City Attorney Jessica Hernandez said.
Crimes affected by the new order include drinking in public, marijuana possession, prostitution, some shoplifting offenses, littering, panhandling, criminal trespass and others.
The district attorney, who has said that his office will prosecute fewer criminal cases as part of a strategy to target repeat criminals and give others second chances, said he was in favor of the order.
“The District Attorney’s Office applauds APD’s long-standing policy of issuing citations to nonviolent misdemeanor offenders,” Michael Patrick, a spokesman for the district attorney, said in a statement. “Our collective energy and resources should remain focused on getting the worst of the worst off the streets.”
But the police union argued the order undermines officers and will lead them to second guess whether someone should be arrested. The union also predicted that more citations will strain an already overworked police department, since officers have to appear in court themselves to prosecute the offenses.
“What if the guy has a bad attitude and he deserves to go to jail? Is that OK or is it not?” asked Shaun Willoughby, the president of the police union. The special order “is the last thing Albuquerque and the community needs right now.”
Peter Cubra, an attorney for mentally ill inmates in the McClendon case, declined to comment until the settlement is approved.
Metropolitan Detention Center records show that about 38 people per month are booked into the jail on a petty misdemeanor charge alone. That number doesn’t include people who are also being booked on outstanding warrants or parole violations. Those bookings are by Albuquerque police officers, Bernalillo County Sheriff’s Office deputies or other law enforcement officers.
The special order brought an end to the most recent back and forth between the police department and attorneys for mentally ill inmates at the Metropolitan Detention Center in the McClendon case.
In April 2014, Cubra sent city attorneys a letter that asked the chief to advise officers to hold back on arresting homeless or mentally ill suspects and instead issue citations in some cases. He threatened litigation if the city didn’t give those instructions and take other steps.
Cubra mentioned in the letter that, weeks earlier, officers had fatally shot James Boyd. Cubra said officers should have issued Boyd a citation for camping in an unauthorized area instead of trying to arrest him.
However, officers on scene said they were trying to arrest Boyd for assault on a police officer, not for a misdemeanor violation.
Two Albuquerque police officers were charged with murder in the shooting. The jury didn’t reach a verdict in the case, and the district attorney said his office wouldn’t prosecute the two officers again. The city settled a lawsuit brought by Boyd’s family for $5 million.
Cubra wrote, “This letter is our final attempt to get the city to address, without litigation, how the city defendants (in the McClendon lawsuit) are treating people with mental disabilities,” Cubra wrote. “Particularly how APD trains and supervises its officers with respect to encounters with them, and especially whether APD officers should resolve and encounter informally, transport the person to an evaluation facility, issue a citation to the person, or arrest them.”
APD didn’t voluntarily comply.
So Cubra and others filed motions against the city in the McClendon case. After three years of court filings, on May 10, Eden gave the order in response to the settlement.
Before the settlement was reached, the city was facing a June hearing in front of U.S. District Judge James Parker on the matter.
Parker had written an opinion late last year stating, “The court will order the city defendants to show cause why they should not be held in contempt of (a court order) for failing to consistently direct APD officers to cite and release nonviolent misdemeanants.”
In addition to the special order, APD agreed to take several other actions.
The department must revise policies concerning biased-based policing; arrests, arrest warrants and booking; search and seizure without a warrant; and domestic violence.
Policy changes include orders that, for instance, officers must have reasonable suspicion before stopping, searching and asking identification or frisking someone who appears to be homeless or disabled.
Attorneys for plaintiffs in the case will also get to make presentations to APD’s Office of Policy Analysis.
The city also agreed to produce records detailing how many people are booked on nonviolent misdemeanor offenses or arrested on domestic violence calls and create public reports on the topics.
The city will also have to work with Bernalillo County on jail diversion and other programs.