Copyright © 2021 Albuquerque Journal
It wasn’t a backlog, it was a work stoppage.
That’s how one of the Department of Justice attorneys described the problem at the Albuquerque Police Department’s Internal Affairs Force Division during the first half of 2021 when he said around 155 use-of-force cases were not assigned to investigators.
“The backlog means APD doesn’t even know whether or not officers are violating the Fourth Amendment and that’s a scary thought,” said Jared Hager, an attorney with the Department of Justice. “This core failure echoes our findings of excessive force, which gave rise to the (Court Approved Settlement Agreement) seven years ago. We found then that driving the problem of unconstitutional force was inadequate investigations and the unwillingness on the part of supervisors and command staff to hold officers accountable when force was used.”
Discussion of the “backlog” – what should be done to address it and what factors were to blame – dominated an all-day federal court hearing before Judge James Browning via Zoom on Thursday. James Ginger, the independent monitor overseeing the court-mandated reform of the police department, has harshly criticized APD for the problem in his past two reports.
From February to the end of July, the last reporting period, investigators completed only seven of 216 level 2 use-of-force cases – those resulting in injury or expected to cause injury – and only two of 91 level 3 cases – those resulting in serious injury or death.
DOJ attorneys said that, moving forward, they would not be content with a “sampling” of the backlogged cases being reviewed and instead want each one to be investigated in order to see if officers violated policies. They expect it could take investigators 18 months to work through the cases, but no plans have been completed for when that would begin.
Attorneys said the newest backlog comprises some 667 cases. Add that to a 2019 backlog of more than 300 cases and there are almost 1,000 instances where force was used, but officers who violated policy could not be disciplined.
All uses of force are referred for investigation, not just those where someone makes a complaint. Because the cases haven’t been investigated, it’s impossible to say how many violated policy, but an external team recently found that some 10% of the more recent cases were out of policy.
In his 14th report published last month, Ginger said the issue was “another example of deliberate noncompliance” by APD.
For their parts, the city and APD officials have taken responsibility for the backlog, but dispute that it’s deliberate.
“During this time, the department was coming to grips not just with the pileup of unaddressed cases, but also with the complete inadequacy of the force investigatory processes, and mass departures from the Force Investigation Division at all ranks,” said Sarita Nair, the city’s chief administrative officer. “We decided to press pause to fix the processes instead of continuing to conduct inadequate investigations. In retrospect, APD leadership recognizes that this was not the right decision.”
She said the city is facing several challenges – including rising violent crime and a decrease in ranks within APD – and is balancing those problems with trying to complete the reform process.
“It is a drastic oversimplification and, frankly, the easy way out to say that APD just needs more willingness to achieve reform,” Nair said. “The real challenges are more complex. A lot of times, when we explain the very real choices that the department has made about officers’ time, we’re met with criticism that we’re pushing back against reform. We’re not pushing back on reform. We just know that part of the discussion must be to explain how things actually work and how we can learn from our past.”
In July, APD began a contract with an External Force Investigation Team tasked with assisting detectives with use-of-force cases. Earlier this year, the city agreed to bring in the team in lieu of being put into a receivership after Ginger found in 2020 that the department was failing to police itself. At that time, cases were being investigated, but Ginger said they were poorly done.
Since the team arrived, all parties seem to agree that they have been beneficial in helping internal investigators. The backlog has not continued to accrue since the team began its work.
Despite early positive outcomes, the DOJ attorneys had strong words to say about APD, which they said did not itself make moves to stem the backlog.
“As this backlog developed, we did not see the sense of urgency, we did not see them adapt, we did not see them owning the problem,” said Paul Killebrew, another DOJ attorney. “We saw a lot of focus put elsewhere. We’ve seen a lot of focus on the rhetoric, rather than what’s in the reports.”
In order to complete a review of all the backlogged cases, the parties are considering extending the EFIT’s contract or hiring another group of investigators.
APD has already hired civilians – separate from EFIT – to assist with investigations into use-of-force cases. Eric Garcia, Deputy Superintendent of the Police Reform Bureau, said there are multiple advantages to hiring civilians, including that few sworn officers want to work in Internal Affairs, so it frees up officers to work in the field, and civilians come into the post with a more open mind and aren’t “tainted by prior experience.”
He said that, at this point, APD would have to hire people to clear the backlog since it does not have the resources to do so itself.
Judge Browning asked the various parties whether they wanted him to replace Ginger as monitor. The DOJ said no, Nair said, “the city has not at this time asked for a replacement monitor” and Ginger said that, while he’s never quit anything he started, if the courts decide he should move on, he would. However, he cautioned that he did not think “it will be different with any other monitor.”
Police Chief Harold Medina stressed that the department is not against reform, but also has to allocate resources toward fighting crime.
“My bottom line is I want the Albuquerque Police Department to be successful,” Medina said. “We can’t reform if we aren’t successful. That is why I continue to make the case that we need support as a police department to balance competing interests.”
APD officials suggested that, if use-of-force on-scene investigations were reduced by 15 minutes, it would be the equivalent of adding 7,300 man-hours, according to a news release sent out Thursday evening.
“Speakers Deputy Chief Josh Brown and Deputy Chief Cecily Barker explained that they would prioritize using those hours to address call response time, and add investigative units to address domestic violence, and missing and murdered Indigenous women,” wrote Gilbert Gallegos, an APD spokesman. “Deputy Chief Brown explained that the Department has been working with the DOJ and monitors on a complete process review that will save officers time on scene without compromising outcomes.”