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Monitor: Issues persist with oversight of APD use of force

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Albuquerque Police Department investigators comb through the scene after an officer shot and killed a man following a foot pursuit into a neighborhood near Comanche and San Mateo NE last December. (Roberto E. Rosales/Albuquerque Journal)

Copyright © 2019 Albuquerque Journal

Late last year, two officers pursuing a stolen car ended up at a housing complex where they mistook a Hispanic man in his 60s for their suspect – an African-American man in his 20s. They used a Taser on him, handcuffed him and “aggressively forced the male to the ground face-first, significantly impacting the concrete.”

Although the investigating sergeant witnessed the incident, he did not initially identify it as a “use of force” or a violation of department policy until a lieutenant reviewed it and referred the matter to a commander.

This incident is included in the most recent report from the independent monitor overseeing the Albuquerque Police Department reform effort as an example of a persistent effort by some personnel to resist changes and oversight.

Overall, monitor James Ginger found that the new administration under Mayor Tim Keller has made “palpable progress” to reform the Police Department; however, he said, the department still needs work investigating policy violations and use of force.

The report – covering the period from Aug. 1, 2018, to Jan. 14, 2019 – is the second to be published since the change in mayoral and police administration in December 2017. Ginger had an increasingly contentious relationship with the prior administration and repeatedly found it to be slow to reform.

Independent monitor James Ginger

Ginger’s relationship with the new administration is better.

“A great deal of work lies ahead;” Ginger wrote in the latest report, “however, the current leadership at APD continues to develop a receptive and attentive attitude toward the change processes that lie ahead.”

The report evaluates the department’s progress in relation to the Court Approved Settlement Agreement signed by the city and the Department of Justice in late 2014 in response to a federal investigation that found APD had “established a pattern and practice in the use of excessive and fatal force that violates the constitutional rights of those shot or harmed by police officers.”

In response to the report, Gilbert Gallegos, an APD spokesman, emphasized that the department has recently developed new use-of-force policies that he hopes will address some of the issues.

“As the report mentions, we cleared a major hurdle with the overhaul of the policies that govern use of force,” he said. “We are now able to move forward with training that is based on these new standards that reflect APD’s commitment to constitutional policing.”

Signs of change

Albuquerque Police Department investigators investigate the scene of an officer-involved shooting in December at a Motel 6 near Carlisle and Prospect NE.

The independent monitor publishes a report about every six months detailing whether the department is in primary compliance (developing and implementing policies that conform to national practices); in secondary compliance (training its personnel to ensure policies will be implemented in the field); and operational compliance (whether personnel are following policies day to day and are being disciplined or corrected when they are not).

The latest report found APD was 99.6% in primary compliance, 79% in secondary compliance and 63% in operational compliance.

This is up slightly from the previous report, in which the department was in 75.4% secondary compliance and 59.2% in operational compliance. Primary compliance remained the same between the two periods.

Ginger said that over the yearslong process his team has noticed “serious deficiencies” in oversight and accountability over reporting and investigating use of force by officers, supervisor investigations and chain-of-command reviews.

This is beginning to change, he said, as APD has reworked its “suite of policies” relating to use of force. Those policies were approved in mid-January.

However, the department still has a long way to go in investigating policy violations and use of force.

“While we are seeing significant progress in these areas, in particular with the Internal Affairs Force Division (IAFD), that positive movement has not alleviated issues that continue in the field,” Ginger wrote. “The use and investigations of force must comply with applicable laws and comport to best practices. Central to force investigations is a determination of each involved officer’s conduct to determine if the conduct was legally justified and compliant with APD policy.”

He said that although the newly created IAFD has called out policy violations in the backlogged cases it reviewed, the investigators are not necessarily treating contemporary cases with the same scrutiny. By the end of the reporting period, the division had reviewed 40% (121) of the 304 backlogged cases.

Other compliance issues regarding non-force-related policies and training include the investigation and adjudication of misconduct complaints, community engagement and outreach, and early intervention systems to identify officers who frequently break with policy and training.

Taser compliance

One of the areas where the department struggled during the latest reporting period related to the use of electronic control weapons, referred to as ECWs or Tasers.

The monitor found APD was fully compliant in the majority of categories related to these weapons in the prior period, but this time, he said, they were no longer operationally compliant in several of those categories.

In a random audit of six cases – including the example listed above in which officers mistook a bystander for a suspect – the report found a “number of deficiencies, from ECW deployment problems by officers, to supervisory review and oversight errors, to instances of an area commander arguing with staff personnel who reviewed and classified an ECW application.”

Also, Ginger wrote, incidents in which supervising personnel tried to change the legitimate processes and findings have become “more prevalent than ever.”

“In the monitor’s opinion, this is a critical issue, more potentially troublesome than training lapses, supervisory lapses, or mid- and upper-level leadership issues,” he wrote. “If APD is to be successful in moving into compliance with the CASA, this proactive and well-entrenched counter-CASA effect needs to be identified, assessed, and addressed head-on, openly, and diligently.”

New initiatives

Despite his complaints about some factions within the department, Ginger said that overall he was pleased with the efforts of Chief Michael Geier, who has gotten personally involved in the process, and the executive staff, saying they demonstrated a grasp of key issues and are building effective mechanisms for change.

Ginger complimented APD on implementing initiatives that were successful in other police departments that focus on creating partnerships with citizens and the community.

He also highlighted the department’s actions regarding: building more rigorous curriculum development at the Training Academy; creating a unit to reduce the long-standing backlog of use of force incidents; researching strategies from other police departments undergoing a reform process; continuing to move toward “community-based, problem-oriented policing practices;” and reorganizing Internal Affairs to improve the quality of internal investigations.

And he wrote: “APD continues moving toward becoming a data driven organization that uses data and facts to assess issues, identify potential solutions, and effect meaningful change.”

Throughout the next reporting period, Ginger wrote, the monitoring team will focus on how the department oversees use-of-force investigations and whether officers complied with policy, especially new policies.

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