Monitor praises APD progress but warns of top-brass mishandling police shootings as city eyes finish line in reform effort

Nov. 11—The team monitoring Albuquerque police reforms said it identified "a grave and substantial malfeasance" in the top brass' mishandling of a fatal police shooting, erroneously ruling it justified.

Independent Monitor James Ginger said it was the second such occurrence in a year and warned the Albuquerque Police Department of the "chilling effect" it could have on those tasked with investigating use of force incidents in the future.

Despite those concerns, the city's compliance with reforms has never been higher.

The monitor's 18th report, which was released Wednesday, showed the city of Albuquerque was at 94% operational compliance with the Court-Approved Settlement Agreement, or CASA, entered into with the U.S. Justice Department almost a decade ago.

Operational compliance is the final measure in CASA compliance and tracks whether officers are following policies and being corrected when they don't. Twelve of the remaining 15 paragraphs to be checked off in the CASA involve hangups with civilian oversight, which is within the purview of the City Council.

"The amazing thing is — this is all that's left," Mayor Tim Keller said during a news briefing Wednesday in front of a graph charting the city's progress, gesturing to the segment left between his index finger and thumb. "There's like that much left in the DOJ process. That's it; that is how far we have come."

Once 95% compliance is reached, a threshold set from the beginning, the city then must sustain that compliance for two years to end the consent decree.

Albuquerque Police Chief Harold Medina said, in football terms, they were at the 1-yard line with the CASA, and "we don't want to fumble the football, and we want to get into the end zone."

APD statistics have shown a drop in crime and uses of force, outside of police shootings, since 2017, alongside a boost in officer productivity, measured by arrests and traffic stops.

"We wanted to beat the idea that you cannot have reform and a safe city," Medina said.

"I think it is imperative that we recognize the hard work of the men and women of this department. We will never be perfect anytime we have a process that involves humans ... but this is about ensuring that there's accountability when we're not perfect."

The monitor largely praised the city's progress in the latest report, applauding the work of force investigators and supervisors. But the report raised fundamental concerns about oversight from the top level, or those who make up the Internal Affairs Force Division and Force Review Board.

The report said that, for the second time, the FRB and IAFD had disagreed with investigators, deeming a fatal police shooting as being in line with APD policy when it wasn't. A few nonfatal police shootings have been found out of policy in recent years but the top brass has yet to find a fatal police shooting out of policy, meaning an officer's actions were not "objectively reasonable, proportional, nor the minimum amount of force necessary."

APD Deputy Chief of Compliance Cori Lowe said at Wednesday's briefing that she had not yet read the 168-page report but that APD had made "multiple improvements" to the FRB since, without getting into specifics.

In the report, the monitor wrote, "We call out these issues due to our awareness of the fact that one of the major reasons for the existence of the CASA was questionable APD officer-involved shootings over a protracted period," referring to the city's signing of the CASA in 2014 after the DOJ determined APD officers displayed a pattern of excessive force.

Since then, APD has devoted thousands of manhours and millions of dollars to the CASA process, creating and staffing entire divisions and roles and rewriting policies and procedures. More recently, APD has implemented oversight outside of the CASA requirements, implementing six-month reviews of police shootings to identify shortcomings and possible solutions.

Police union president Shaun Willoughby said he was looking forward to the end of the CASA and called the monitoring process "a scam."

"This report and the impact of the report changes absolutely nothing for years to come, in my opinion," Willoughby said. He said APD has learned to categorize and investigate force at "an expert level" but believes it could've been done for much less time and money.

"Using force as a police officer, it's good to take it seriously," he said. "... But I also think that we overdo (investigating) it."

Daniel Williams, policing policy analyst with the American Civil Liberties Union of New Mexico, recognized the work that has been done by APD but said the issues flagged by the monitor speak to culture change within the department and what "brought DOJ to town in the first place."

"If the chain of command has not bought into a new attitude toward policing, has not really bought into these reforms and is continuing to go with the same status quo that has failed us for years, is the CASA going to be sustainable when DOJ leaves town?" he asked.

Pros and cons

The report, which covered January to July, said the "compliance surge" made by the Albuquerque Police Department was "due mostly to APD's finally understanding the change process." The monitoring team noted that APD is now self-monitoring 157 paragraphs of the CASA, police training processes have "remained strong" and a review found marked improvements in cases filed by force investigators.

The report called the latter accomplishment "a major milestone," as force investigation deficiencies plagued previous monitor reports before an outside team came in to train investigators.

The monitoring team also noted a concerning trend of Internal Affairs Force Division leadership and the Force Review Board "mishandling" police shootings following a year in which the department shot or shot at a record-high 18 people, with 10 of them being killed.

"Most troubling is that in this case, the IAFD investigator and supervisor did what was required, and the deficiencies began at the IAFD command level and were endorsed by the FRB," according to the report, referencing the November 2022 shooting of Jesus Crosby. "... We are equally concerned with the chilling effect a case like this can have on IAFD investigators and supervisors who will be called to make difficult, honest, and accurate findings in the future."

Officers simultaneously fired Tasers and bullets at Crosby, who was suffering a mental health crisis and holding fingernail clippers outside APD headquarters. A force investigator, civilian oversight director and one FRB member found the shooting out of policy, but an IAFD commander and the rest of the FRB reversed that finding.

The disagreements in the case were reported by the Journal earlier this year, but the monitor's comments came after the monitoring team reviewed the case itself. APD modified policies following the shooting in the hopes of expanding the use of less-lethal force in such situations.

Mark Fine, who is representing the Crosby family in a lawsuit, said the family thanked the monitoring team for its "good-faith assessment of the killing of Jesus and for calling out the backwardness of APD leadership's absurd determination that the shooting was 'within policy.'"

"Since 2014, the City has known and admitted that a lack of supervisory oversight allowed a culture of aggression to develop in its ranks, which resulted in a pattern of unnecessary and deadly uses of force," Fine said. "The Monitor's report reveals that this toxic dynamic continues."

The monitoring team described the Crosby case as one of the "more obvious mishandlings of organizational oversight that we have seen since the inception of the CASA."

"The case is replete with issues, from the shooting itself through the handling of the case," according to the report, which questioned if IAFD leadership or FRB members "are competent to review cases of this significance."

The report said no FRB member asked questions about the policy disagreement or about the six shots fired after Crosby was on the ground, and only one member "asked insightful questions regarding the appropriateness of deadly force." That same member, according to the report, voted that the use of force was not necessary but was outvoted by the other members.

The team noted it marked the second time the FRB has ignored "a compelling justification" for an out-of-policy ruling in a fatal shooting.

The monitoring team added, "In our opinion, all parties should be concerned if any IAFD personnel believe, or were led to believe, that the use of deadly force by officers, in this case, was appropriate."

The report noted that the FRB has excelled in recent years due to three "specific deputy chiefs," one of whom has retired while the other two were not at the FRB meeting.

"We have commented in the past that reforms cannot exist as a result of specific people, and instead have to be woven into the fabric of APD's culture," according to the report.

Peter Cubra, an attorney who advocates for people with mental disabilities, acknowledged that the use of force in general is down, but said he is "fed up with the ineffectuality" of the CASA to protect people like Crosby.

He said the monitor and DOJ rejected his request that all police shootings of those with mental disabilities be reviewed.

"I've said to the Justice Department, 'Whatever the overall trends are, the trends with respect to shooting people with mental disabilities remain unconstitutional,'" Cubra said. "Their only retort was, since most shootings of most people who aren't mentally disabled are coming in within policy, it doesn't matter."