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IA, criminal officer use-of-force investigations to run concurrently

Copyright © 2014 Albuquerque Journal

Albuquerque police officers involved in shootings have spent months on administrative leave or assignment before the associated internal affairs investigations even started, but that practice is set to change.

The internal affairs, or administrative, investigation into a shooting or a serious use-of-force case will be separate but simultaneous with the criminal investigation, according to a settlement agreement between the city and the U.S. Department of Justice. The DOJ has found that Albuquerque police have a pattern of using excessive force, which includes police shootings.

The settlement is waiting approval of a federal judge. Both the DOJ and the city of Albuquerque have filed motions asking the judge to approve the agreement.

Albuquerque police spokesman Tanner Tixier said police are in the process of putting in place the reforms outlined in the agreement, but the change affecting timing of internal affairs investigations hasn’t taken effect yet.

Thomas Grover, an Albuquerque attorney and former police officer, said the new practice will be controversial.

Grover said officers are compelled to participate in administrative investigations and will be fired if they don’t cooperate. But there are rules that stop information discussed in internal affairs interviews from being used against an officer in a criminal case.

By doing internal affairs investigations at the same time as the criminal investigations, it’s possible that information will be shared among investigators – especially, Grover said, if the two investigations are done by the same department.

“The only way to get around it is if (one of the investigations) is done outside,” he said. “If it’s done by the same agency, that will have to be adjudicated.”

Albuquerque Police Officers Association officials said they will be watching upcoming reforms for how they may conflict with the agreement between the police union and the city.

“The APOA is fully aware of the process taking place with the DOJ settlement. We take the protection of officers’ rights very seriously, and we will work to ensure that our officers’ rights are protected,” Stephanie Lopez, the president of the union, said in a statement.

The shooting of James Boyd by Keith Sandy and Dominique Perez, and the shooting of Mary Hawkes by Jeremy Dear, are examples of officers who spent a considerable amount of time on administrative leave and assignment before an internal affairs investigation into their actions started.

Sandy was placed on administrative leave in March after he and Perez shot Boyd, a mentally ill homeless man camping in the Sandia Foothills.

After staying on paid leave for eight months after the shooting, which was longer than any of the other eight APD officers involved in a shooting this year, Sandy retired Dec. 1.

His retirement benefits are the result of his work at Albuquerque police and New Mexico State Police. He was hired at APD in July 2007 and had been with the department for six years and eight months at the time of the shooting.

Prior to joining APD, he worked for 10 years and six months at State Police, but he got credit for 12 years and seven months of work. State Police officers in New Mexico get to enhance their time with the agency by 20 percent for retirement purposes, said Susan Pittard, the general counsel and chief of staff for the New Mexico Public Employees Retirement Association.

Pittard said an officer being the subject of an internal affairs investigation at the time of his or her retirement doesn’t affect retirement packages.

Even though Sandy plans to retire, police will still move forward with the internal investigation into the shooting.

“The internal investigation into the officer-involved shooting … will continue regardless of officer Sandy’s employment status,” Tixier said.

Dear was placed on administrative assignment in April after he shot and killed 19-year-old Hawkes.

Grover, Dear’s attorney, said his client has not been told the criminal investigation has been completed or that the internal affairs investigation into the shooting has started.

But in August, Grover said Dear became the target of an internal affairs investigation for several issues, including Dear’s use of his lapel camera. Several weeks ago, Dear was placed on administrative leave because of the August investigation.

Because of that investigation, internal investigators and police supervisors recommended that Dear be fired. Chief Gorden Eden fired Dear on Dec. 1, Grover said.

Dear’s lapel camera didn’t capture any footage of the Hawkes shooting, and a review couldn’t determine whether he didn’t turn the device on or if it malfunctioned.

Dear was involved in two arrests in 2013 in which force was used against the suspect and no lapel camera footage of the arrest was recovered, according to Journal archives.

A review of Dear’s personnel file found other incidents in which Dear’s lapel camera didn’t record an interaction that should have been taped.

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