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City, DOJ consider outside investigators

Copyright © 2020 Albuquerque Journal

In the wake of a scathing report in which the independent monitor overseeing Albuquerque’s police reform effort said the department was failing to police itself, the city and the Department of Justice seem to be nearing an agreement to turn over the majority of force investigations to outside investigators.

During a status conference hearing all day Friday — held virtually for the first time — Paul Killebrew, special counsel for the DOJ’s civil rights division, announced that after the monitor’s 12th report was published in early November, he and his team began negotiating with the city. They are in the midst of crafting a stipulated order on the proposal that is expected to be filed in January.

“(The city) agreed the problems were serious and needed to be addressed,” Killebrew said. “So that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture today. We might have needed to seek enforcement action over the city’s objections.”

The city and DOJ are in the midst of a years-long Court Approved Settlement Agreement after DOJ investigators found the Albuquerque police officers had a pattern and practice of using excessive force.

In the weeks leading up to Friday’s hearing, several of the amici — advocacy groups that are not part of the litigation, but who are invited to provide input — had asked the judge to hold the city in contempt of court and then put them under an outside receivership that would act as a de facto police chief and also enforce the settlement agreement.

At Friday’s hearing, many of the amici strongly objected to the idea of external investigators, saying that measure is not going to solve the root problems.

US District Judge James Browning

The hearing before US District Court Judge James Browning included multiple presentations from DOJ attorneys, the monitoring team and amici members about the most recent report and how the monitor found serious deficiencies on every level, from officers not reporting force, to sub par internal affairs investigations and a lack of oversight at the highest level from the Force Review Board and the then-chief of police. The most recent report was published in early November and covers the period from February through July.

For the most part, city officials agreed there have been serious issues and that the Force Review Board had “experienced some growing pains” during the monitoring period.

However, both the independent monitor and managing assistant city attorney Lindsay Van Meter said in recent months the board members — high ranking officials at the Albuquerque Police Department — are now asking more probing questions and have made many more referrals for additional investigations.

She said while the board has started to identify problems with the use of force investigations itself, they still have to improve, and bringing in an outside entity would be helpful.

“The city does believe that a substantial part of what will be required will be training APD investigators in the proper standards and looking at those systems developed by APD and ensuring that those systems are not going to lead to failure,” Van Meter said. “So the city is working with the DOJ as the DOJ mentioned. They did send over a stipulated order.”

When Judge Browning questioned whether the stipulated order was a “tremendous loss of sovereignty and self direction by the city” but not as intrusive as putting the city under a receivership, special counsel Killebrew said he agreed. But, he added, there are some cases where external investigations are already happening — such as those done by the Civilian Police Oversight Agency or when the police department requests it in cases where high ranking officials are implicated.

Killebrew said the plan right now would be for the city to hire external investigators who could work remotely from anywhere in the country. He said the existing Internal Affairs Force Division detectives would conduct the on-the-ground investigation at the scene, including taking photographs and canvassing the area for witnesses. The raw materials would then be sent to the external investigators who would determine if they think force was improperly used and make discipline recommendations.

“There are not that many human beings that stand between Internal Affairs Force investigators and the chief of police …,” Killebrew said. “We believe that if the external team conducts the investigation and recommends a finding of out of compliance and recommends discipline, it will be obvious to us if the external team’s findings are being undermined by the commander over IAFD, the deputy chief or by the chief. We can then target any necessary action at those levels of command.”

However, he said, the possibility of filing for contempt is not off the table if the negotiations with the city break down.

Independent Monitor James Ginger

Independent monitor James Ginger said he has talked to Interim Police Chief Harold Medina multiple times over the past couple of months. Medina, who took over the department after the former police chief was told to retire in September, said he is on board with the plan to bring in external investigators and hopes they can teach the internal investigators how to conduct their investigations properly.

Medina stressed that the community deserves both constitutional policing and a reduction in its high violent crime levels. And he acknowledged multiple missteps in criminal investigations over the years.

“It’s very apparent that in our investigative process, we don’t have a strong bench …,” Medina said. “It’s not just in the terms of force investigations. You’re from the city, your honor, I’m sure you watch the media, we’ve had some major debacles over the years in our investigative division. We need to teach people how to be investigators and bringing outside entities to help us will only make us stronger.”

Interim Police Chief Harold Medina

Furthermore, Medina said, he knows that there are officers in the department who are resistant to the reform process and they need to be held accountable, and maybe even fired.

“None of us come to work every day to end someone’s career, and at the times when those tough calls need to be made, the executives of this department have to have the courage to make those tough calls and to continue to make those tough calls,” Medina said. “The community deserves it and their fellow officers deserve it because there are a lot of officers out there every day doing their jobs to the best of their abilities, they’re not violating anyone’s rights, they’re not using excessive force.”

However, many of the amici were not pleased with the idea of bringing in outside investigators.

Peter Cubra, an attorney representing one of the groups that asked the judge to hold the city in contempt, said the public has no idea about how often force is being used unconstitutionally due to the poor quality of reporting and investigations.

He said he was feeling distraught about the idea of bringing in external investigators.

“There is nothing about subcontracting investigations to somebody else that will lead this to be over,” Cubra said. “Paradoxically, if we let the city off the hook and say, ‘OK don’t investigate improper use of force,’ how will they ever get the case over? They actually have to learn how to do it.”

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