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Scathing report on APD use of force

Copyright © 2014 Albuquerque Journal

Talks between the city and the Department of Justice begin today on writing a court-enforceable consent decree that would change the way the Albuquerque Police Department operates.

Both federal and city officials expressed optimism, but Justice Department lawyers left no doubt about one thing: If they can’t reach an agreement, they are prepared to file a federal lawsuit to stop what they found during a 16-month investigation was a pattern and practice by APD of excessive and deadly force.

On Thursday, at separate news conferences, Mayor Richard Berry and DOJ officials talked about cooperation and praised their working relationship.

The DOJ list of remedies calls for the complete overhaul of the internal affairs process and officer discipline; a complete rewrite of use-of-force procedures and training; new policies for recruitment and selection of new cadets; clearer policies for dealing with people with mental illness and disabilities; and civilian oversight of the department.

The DOJ recommends a nearly complete overhaul of the department’s use-of-force policies including a prohibition against shooting at motor vehicles and requiring the reporting of all use-of-force incidents, including the use of choke holds.

Other sweeping recommendations include the reconstruction of APD’s Internal Affairs unit and policies governing it. The DOJ, for instance, wants all department employees to be required to report alleged or perceived misconduct to a supervisor or Internal Affairs for review and an easier system for the public to make complaints.

All of the changes are designed to root out a culture within the department that accepts and even encourages the unconstitutional use of excessive and fatal force, according to the Department of Justice findings.

Acting Assistant Attorney General for Civil Rights Jocelyn Samuels said at the DOJ news conference that each police department is unique and that the Department of Justice will stay as long as necessary to bring about the needed reforms at APD.

Acting U.S. Attorney Damon Martinez said, “The coming days and months will determine what the next generation of policing will look like in our city.”

Berry said he was not going to dispute the DOJ findings of excessive force. He said he preferred to look to the future and changing the department.

Berry said his administration “looks forward to working with the Department of Justice” and that he has already talked to potential monitors and/or consultants. But he said any specifics concerning a monitor or monitors who would oversee the reforms still need to be worked out.

“I see this as the very beginning of a process,” Berry said of the DOJ findings. He said changing the police department “won’t be quick and it won’t be easy. But we can achieve it.”

On Thursday no one would speculate on how long or difficult those negotiations might be.

Typically in cases like APD’s, the Department of Justice negotiates an agreement with the city on what changes will be made and on independent oversight (a monitor) to make sure the police department is making changes in accordance with the agreement.

When the deal is struck, a complaint outlining alleged problems and the consent decree to fix them are filed together.

Martinez, Samuels and Berry all said that the vast majority of police officers do their jobs without using excessive or deadly force, and Samuels commended two APD officers who disarmed a suicidal gun-wielding man on Wednesday, calling it an example of how officers can successfully de-escalate potentially life-threatening situations.

She also confirmed, however, that the civil rights team looking into APD for the last 16 to 18 months has referred some use-of-force cases involving APD to the DOJ’s criminal division for review.

Samuels wouldn’t discuss any other details about those cases.

Federal officials have made it clear that the recent fatal shooting of James Boyd in the Albuquerque foothills by police is not part of the DOJ civil findings and is being investigated separately as a criminal case. A police video of the shooting went viral on the Internet and led to street protests in Albuquerque.

Findings

According to the DOJ’s findings, APD has established a pattern and practice in the use of excessive and fatal force that violates the constitutional rights of those shot or otherwise harmed by police officers.

In the 46-page letter to Berry, the DOJ concluded that “structural and systemic deficiencies – including insufficient oversight, inadequate training and ineffective policies – contributed to the use of unreasonable force.”

The Department of Justice reviewed 20 fatal shootings by Albuquerque Police between 2009 and 2013 and found that in the majority of cases, the level of force used was not justified because the person killed by police did not present a threat to police officers or the public.

The DOJ also reviewed the use of nonlethal force involving significant harm or injury to people by APD officers and found a similar pattern of excessive force by officers against people who posed no threat and was not justified by the circumstances. Samuels said in an interview the findings were “pretty disturbing” and that public trust of the department has been eroded.

“A lot of the most troubling incidents involved mentally ill people,” Samuels said.

Samuels said that there was a “culture of acceptance of the use of excessive force” within APD that stems from “systematic failures” that are department-wide and that external controls also failed.

The letter also said the reckless actions of officers put themselves in a position where force was needed.

Among the findings:

  • Albuquerque police officers too often use deadly force in an unconstitutional manner in using their firearms where there is no imminent threat of death or serious bodily harm to officers or others. Instead officers use deadly force against people who pose a minimal threat and the conduct of officers heightens the danger and contributes to the need for force.
  • The use of excessive force by APD officers is not isolated or sporadic. The failure to implement an objective and rigorous internal accountability system has led to use-of-force incidents not being properly investigated, documented or addressed with corrective measures.
  • A significant number of use-of-force cases reviewed were found to involve persons with mental illness and in crisis. The department’s policies, training and supervision were found insufficient to ensure officers properly responded to people they encountered with mental illness or in distress.

The DOJ letter cites the fatal shootings of Andrew Lopez and Dominic Smith in separate incidents in 2009 as examples of excessive force on unarmed men. Later examples include the shooting deaths of Alan Gomez outside a relative’s home in May 2011 and the January 2010 shooting death of Kenneth Ellis, which led to an $8 million civil settlement with the city.

But according to the DOJ letter, the culture of accepting the use of excessive force, both fatal and nonfatal, is created by the department’s failure to properly report excessive force incidents, thoroughly investigate those reports and properly discipline officers. Proper training and guidance were contributing factors to the fatal shootings and constitutional violations in the nonfatal use of excessive force.

Recommendations

Samuels said the findings and recommendations released Thursday are the start of discussions with Berry’s administration on how to fix the problems with APD.

“We have used these remedies in other cities and found they work,” Samuel said. “We hope they are willing to work with us.”

Justice Department officials said APD has taken some positive steps to correcting problems but that those first steps need a lot of work.

Another program to reduce police use of force, the formation of the Crisis Intervention Team (CIT), also drew praise from DOJ officials, but they pointed out that the department again fell short in determining how and when the team trained to deal with mentally ill people is used.

“Innovations the department has made are undermined by the lack of clear guidelines,” one DOJ official said. “When is the CIT called? Who is in charge of the scene?”

DOJ recommends that incidents where force is used, whether fatal or not, should be treated as crime scenes where evidence is gathered and witnesses sought out for statements. The DOJ wants all use-of-force incidents to be reviewed by supervisors, but not supervisors who were involved in the incident or ordered the use of force.

DOJ wants the department to re-emphasize community policing after it found that the department’s leadership had not made it a priority, resulting in a department culture that is hostile to forming partnerships with community groups.

Federal investigators found that the department’s training is too heavily focused on weaponry and scenarios where officers use force and that officers do not get enough training in how to de-escalate situations.

The DOJ letter calls for an overhaul of the Police Oversight Commission, where investigators found the current and past review officers to be more closely aligned with the department than the community.

— Read the full report: DOJ findings on APD

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