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Judge blasts city’s tactics against APD monitor

U.S. District Judge Robert Brack

Copyright © 2017 Albuquerque Journal

The frustrated federal judge overseeing the Albuquerque Police Department’s reform efforts said he was “tired of the toxicity” as he struck down the city’s recent accusation that the court-appointed monitor is biased against it.

From the bench and in a strong 17-page ruling, U.S. District Judge Robert Brack on Thursday made his most critical statements yet on the city’s role in the three-year reform effort.

“Let’s hit the reset button,” he said.

The city of Albuquerque earlier this month filed a motion asking for Brack to hold a hearing to determine whether independent monitor James Ginger is biased against the police department.

Brack in his order denying the motion found the “manner in which the City framed” a March 18, 2016, meeting that was video recorded by a senior police commander “comes dangerously close to obstruction of this reform process.”

He ruled that allegations of bias against the department on Ginger’s part were “insufficient to disqualify Dr. Ginger.”

Brack also found that the decision to secretly record Ginger “in order to blindside him later is unacceptable.” He also ordered any other secret recordings of other meetings to be turned over to the court for review.

Brack said he hoped that no one missed the irony that during the secret recording, Ginger was upset about being “blindsided” by city officials who were critical of him during a City Council meeting.

“And at the same time he is being secretly recorded so he could be blindsided later,” Brack said from the bench.

Ginger periodically writes reports outlining Albuquerque Police Department’s progress with reforms. His reports to Brack have been increasingly critical of APD’s efforts, which he oversees for the court based on an agreement between the Department of Justice and the city after a DOJ investigation found APD had a practice and pattern of using excessive force.

The effort was projected to last four to six years, but Ginger reported that there’s much work left for the police department, which is about to undergo a change in leadership.

Mayor-elect Tim Keller takes office Dec. 1 and Police Chief Gorden Eden is retiring at the end of the month.

In accusing Ginger of bias, the city referred to two specific instances: a recording Assistant Police Chief Robert Huntsman made in March 2016 during a meeting with Ginger. Ginger didn’t know he was being recorded. The city also referred to a recent conversation between an unnamed police employee and a member of the monitoring team, who reportedly said Ginger had an “ax to grind” against the city, according to a sworn affidavit from Eden.

At the end of a daylong court hearing about the monitor’s sixth report and other pending matters, Brack announced that he was denying the city’s motion for a hearing on Ginger’s bias, and that the order was being filed at that time. He added that Huntsman “wasn’t justified” to make the recording and, in doing so, violated the terms of the settlement between the city and the DOJ, which says that officers can only use cameras to make recordings for official law enforcement purposes.

During the meeting that Huntsman recorded, Ginger expressed frustration with City Attorney Jessica Hernandez’s recent appearance before the City Council, where she answered questions about the police reform process at length and at times said she disagreed with the monitor’s findings.

“It’s fine. I can play the game, Jessica. I know how, and we can play it,” Ginger said, according to the recording.

Huntsman then interjected that the reform effort was not a “game to me,” and added that he was concerned for his police department and his community.

“Noble sentiment, chief, one that we all share,” Brack said to Huntsman in court. “But the fact is, you knew you were being recorded when you said it.”

The judge said Ginger’s reference to a game clearly didn’t mean that he wasn’t taking the reform project seriously.

“Ask Alex Bregman is he was serious during Game 7 of the World Series,” Brack said, a reference to the baseball star from Albuquerque.

Brack also took issue with what he said was the city’s effort to manipulate the video before releasing it to the public. A segment of Huntsman’s video that the city provided the Journal was 14 minutes long. The Journal edited the clip down to nine minutes of conversation that was relevant to the city’s motion and posted it to its website.

The city had compared Ginger to a special master and argued that he had to act according to federal rules for judges. Brack disagreed, saying Ginger’s position was as a monitor and his job was to “assess and report.”

Brack continued from the bench to dress down city officials’ recent attempts to undermine the monitor. In addition to the recent motion, several city councilors recently called for Ginger’s billing practices to be audited.

“These games aren’t acceptable,” Brack said. “They are letting a lot of folks down. The officers …. and the citizens deserve better.”

Brack gave little weight to the recent telephone conversation the city referred to, in which someone reportedly said that Ginger had an “ax to grind.”

“A remark, speculating about the monitor’s state of mind, from an unidentified member of the monitoring team to an unidentified staff for APD, as related to APD management, has less than zero evidentiary value,” Brack wrote in his order.

City Attorney Jessica Hernandez said the city filed the motion in good faith.

“The city believed that comment rose to a level of concern that warranted bringing it to the Court’s attention,” she said in a statement after the hearing.

Throughout Thursday’s hearing, the city’s motion against Ginger and the recording that Huntsman made were brought up by many advocates of police reform.

Peter Cubra, an attorney who represents people with a mental illness at the county jail, suggested that the judge grant the city its request for a hearing, but allow the DOJ and other lawyers involved in their case to get to call their own witnesses to try to find out how Albuquerque police have fought reforms.

“The city’s asked for it, let’s give them what they want,” he said. “Let’s see who’s up to what.”

Peter Simonson, the executive director for the ACLU in New Mexico, said such a hearing would only be an attempt to distract the monitor.

“It’s this administration’s parting shot at someone who is holding them accountable,” he said.

Journal staff writer Mike Gallagher contributed to this report.

Judge Brack’s order on the federal monitor’s neutrality by Albuquerque Journal on Scribd