New Mexico Mercury

Written by Kent Patterson

Editor's note: This article was written before the Albuquerque City Council voted unanimously to approve the consent decree between the Department of Justice and the Albuquerque Police Department on November 6th.  

Could the troubled city of Albuquerque, New Mexico shine as a model and “bright spot” in fair and accountable policing practices across the country?

In the view of Acting U.S. Assistant Attorney General Vanita Gupta, the Duke City could indeed become a leader in forging a path for law enforcement that not only efficiently controls crime, but also respects the Constitution and wins public trust.

Gupta, who gained a reputation as a staunch human rights defender for the American Civil Liberties Union before accepting a post with the U.S. Department of Justice (DOJ) last month, made her remarks late last week as the City of Albuquerque and DOJ unveiled a mutually agreed upon consent decree that will steer the operations of the local police department, under fire for more than 40 officer-involved shootings (27 fatal ones) since 2010 alone, for at least the next two years.

Slated for supervision by an independent monitor, the court-enforceable decree grew out of years of protests by community activists and relatives of residents shot to death by the Albuquerque Police Department (APD), a lengthy DOJ investigation that found a pattern of excessive deadly force and brutality in violation of the Fourth Amendment of the U.S. Constitution and a six month negotiation between the DOJ and Albuquerque Mayor Richard Berry’s administration, represented by private attorney Scott Greenwood. 

According to Damon Martinez, U.S. attorney for New Mexico, the consent decree was crafted after “an unprecedented level of outreach” featuring numerous community sessions and interviews with nearly 700 citizens, as well as meetings with more than 500 police officers and the Albuquerque Police Officers Association.

The federal lawman couched the legal agreement as one that is “specifically tailored” to Albuquerque and its police department.

“It reflects Albuquerque’s ideas, Albuquerque’s values and Albuquerque’s aspirations for the Albuquerque Police Department,” Martinez said in the run-up to the Halloween Day announcement of the consent decree.

Martinez shared Gupta’s assessment that the consent decree addressed public safety while upholding the rights of both citizens and officers.  The decree avoided “costly and protracted civil litigation,” Martinez insisted.

Prior to the planned filing of the agreement in U.S. District Court after November 10, the issue will be discussed and likely approved by a special session of the Albuquerque City Council. Councilman Rey Garduno told FNS that the council’s approval was pretty much a “done deal.” Garduno defined much of the settlement as “good,” with a big caveat.

“We have to change the culture,” he contended. “If people get around the procedures then nothing has been accomplished.”  

The consent decree lay out changes in nine areas the DOJ has identified as problematic, including officer recruitment, training and promotion; supervision; use of deadly force; field documentation, management of specialized units;  crisis intervention; mental health assistance and support for officers; community engagement and oversight;  and misconduct complaints and investigations.

Chief among the reforms are the dismantlement of a controversial unit that has been involved in a disproportionate number of shootings, the Repeat Offender Project (ROP); greater screening of APD applicants who have experience with other police departments; the establishment of a multi-agency law enforcement group to investigate APD police shootings; and stronger civilian oversight.

Lauding the agreement, Albuquerque Mayor Richard Berry appealed on the public to jump on board, “because the fact is we need the community’s help to foster change.”

Berry added in a statement, “With the release of our APD settlement agreement with the Department of Justice, I believe we are setting a new national standard for policing and police reforms.” 

On the key oversight question, the Albuquerque City Council is currently reviewing applications for nine members to sit on the Police Oversight Board, a new body which will replace the Police Oversight Commission that was abolished by the council earlier this year.

Garduno said council staff have already received more than 40 applications but will accept others until November 30 in order to ensure diverse community representation. Preferably, the Police Oversight Board will be ready to roll up its sleeves by December or January, the council member said.

“We hope it can go up as fast as it can,” he added.

Initial local reactions to the consent decree were decidedly mixed. Albuquerque Independent Review Officer (IRO) Robin Hammer, the official charged with processing citizen complaints against officers, agreed with the DOJ’s contention that a lack of civilian oversight was a “legitimate criticism.” Hammer, who has been criticized by some anti-police violence activists, said she operated within the legal parameters drawn up for her job.

“This position, the IRO, reviews the standard operating procedures of the department, if the department’s officers comply with the rules,” Hammer told FNS. “I have some concerns about the rules, but that’s what I’m tasked to do.”

As part of Albuquerque’s policing reform, Hammer’s position will be phased out and replaced by the new Police Oversight Board’s executive director - a job Hammer said she would like to have.
 

An important change coming from the consent decree will be the ability of the new oversight agency to accept and investigate anonymous complaints, Hammer said, inviting the public to contact her with any concerns.

“We’re in it together and we need everyone’s help to make APD a better place,” Hammer urged.

Hammer added that her office has annually averaged about 260 complaints from the public during the two years and two months she has served as the IRO. Mostly, the complaints allege “cops being rude to people,” followed by officers’ violations of traffic rules, improper searches and entries and delays in police response, she added. 

Ken Ellis III, whose Iraq war veteran son Ken Ellis II was shot and killed by APD in 2010, was skeptical about the DOJ-APD legal deal.

“I think it’s more rules and regulations that APD can disregard. I hate to be pessimistic but change is not happening fast enough,” Ellis said.

The APD critic had a recommendation of his own: “First and foremost is that the blue code of silence or blue wall of silence, whatever they call it, needs to go away. It’s going to have to start from the bottom. The administration and brass are covering up for these cops that shouldn’t be cops.”

Ellis continued: “Why haven’t they indicted officers yet? That’s the big question. It was proven in a court of law that my son’s rights were violated, yet the police gave (his son’s shooter) a raise and he’s back on the streets. Now he’s going to deal with your family.”

Ellis, whose family won a multi-million dollar judgment in a lawsuit against the City of Albuquerque for their son’s death, cast doubt on the objectivity of a new multi-agency task force set to investigate future police shootings.

“That’s where the problem is-you have officers investigating officers, brethren investigating brethren,” he said, proposing instead an “independent entity” to probe police shootings.

The DOJ did not respond by deadline to multiple requests from FNS for the names of the specific law enforcement agencies that will constitute the investigative task force.  Ellis wasn’t surprised by the reported October 28 killing of one officer by another in Las Cruces. Santa Fe County Sheriff’s deputy Tai Chan stands accused of shooting to death fellow deputy sheriff Jeremy Martin in Las Cruces’ upscale El Encanto Hotel after an apparent argument. The two officers had reportedly stopped over at the hotel and a pub in the City of Crosses after delivering a prisoner to Arizona.

“That’s the mindset of law enforcement, of officers,” Ellis asserted. “That’s how they handle situations. They don’t know how to negotiate, deescalate.”

Retired APD Sgt. Paul Heh, who has been critical of the last two APD administrations, said he saw “nothing wrong” with outside law enforcement agencies investigating APD shootings, but dissented with other aspects of the consent decree such as the requirement for officers to wear and activate body-worn video cameras. 

Video taken at a violent crime scene, Heh said, will end up tagged as evidence and accessible to defense attorneys, thus creating a situation in which witnesses could be reluctant to talk if their identities are susceptible to leaks.

In a phone interview, Heh slammed the plan to disband the ROP, likening it to throwing out the baby with the bathwater. As originally intended, the ROP was created to nab repeat offenders but many of its members wound up involved in numerous, high profile shootings.

“It’s a good thing to have, but what they’ve done is allowed that project or group in there to run amok,” Heh maintained. “They think they’re a mini-SWAT project but they’re not. Instead of putting someone in there to straighten it up, they’re getting rid of it. That’s asinine.”

Handed down from Washington and written by lawyers who are unfamiliar with the challenges confronted by cops, a consent decree does not appreciate the conditions and decisions faced by officers on the streets, Heh contended.   

“The primary thing on the scene is the safety of the officer and the safety of all those around you, including the offender,” he said.  Heh predicted that the DOJ-APD agreement would exacerbate an internal APD crisis evidenced by an exodus of experienced officers and difficulties in recruiting new ones, by fanning a generalized demoralization already within the ranks and discouraging new professionals from joining the force.   

“What that tells you is that nobody in this city wants anything to do with the police and this department. With the economy the way it is, they should be lined up for jobs but they’re not,” he said. “With all that has come down and that discipline that’s coming down, (officers) can’t say boo.”

An Associated Press story reported this week that the number of officers employed by APD has fallen about 19 percent since mid-2010, dropping from 1099 officers in June 2010 to 891 in October 2014.

Heh pointed to a 2009 transition report prepared for incoming Mayor Berry that outlined many of the issues which have since blown up in a full-fledged law enforcement and justice crisis. In the former officer’s opinion, the crisis translated into an insecure city.

“The department went from one of the top rated departments in the country to a consent decree,” Heh admonished. “Would you be embarrassed?”

A veteran of the narcotics beat, Heh faulted the local political leadership for ignoring the two principal issues he said drive Albuquerque violence, police shootings included-mental illness and drug abuse among the population. He cited the plunge in heroin prices from $6,000 per ounce in the 1990s to $600 per ounce in contemporary times as indicative of the extent of the crisis. 

“Nobody is addressing the underlying problems,” Heh warned. “(Drug abusers) are destroying their lives and we’re allowing this to happen.”

On Election Day, November 4, Bernalillo County voters approved an advisory measure favoring a one-eight percent gross receipts tax earmarked for mental and behavioral services in the Albuquerque and Bernalillo County area; voters also gave a thumb’s up to an advisory question backing the decriminalization of one ounce or less of marijuana.

Larissa Lewis, who’s worked with ABQ Justice, APD Forward and other anti-police violence organizations,  said she was “completely grateful” at the issuance of the consent decree, praising in particular the activism of Jewell Hall, founder of Albuquerque’s Martin Luther King, Jr. Memorial Center, for helping prod the DOJ into action.

But Lewis, who has pounded on the doors of multiple law enforcement agencies in an effort to obtain full justice for her 21-year-old son, Kerry Lewis, murdered in a 2009 Albuquerque homicide she ties to three men possibly working as police informants, held that the DOJ-APD agreement, which focuses on addressing civil rights violations, barely scratches the surface of a larger problem of justice system corruption.

“(APD) is a link in the chain of corruption. It is one link. Everyone wants to ignore the District Attorney, who is crucial,” Lewis said. “I think (DOJ) shook up a lot of people-a bunch of rats jumped ship. It’s shaken the table cloth, but honey, that tablecloth is still there.”

For Lewis, the tawdry “tablecloth” holds fixtures that make for plenty of heady dinner time talk like the still-unresolved murders of 11 women found on Albuquerque’s West Mesa in 2009; missing evidence in different cases; the suspicious 2010 death of prominent Albuquerque attorney Mary Han, whose home was overrun by APD high-ups in an unusual sequence of events; and the likewise suspicious 2007 death of Tara Chavez in nearby Los Lunas.

Married to then-APD officer Levi Chavez, the young mother’s death was initially declared a suicide by her husband, but grieving relatives claimed otherwise and pressed for a murder investigation. Obtaining a change of legal venue, Chavez was eventually acquitted by a Bernalillo jury in 2013. 

Of all the police departments in the country, why has NBC’s Dateline produced three segments on APD-related stories during the past four years? Lewis asked. 

The recent Las Cruces murder of Jeremy Martin allegedly at the hands of fellow officer Tai Chan, who was almost immediately fired after he was jailed, exposed a two-tiered justice system in the state, Lewis added.

“How many APD cops have been fired?” Lewis asked, adding that the Martin murder is “going to put out a big double standard.” 

Like Heh, Lewis blamed drugs for public safety and corruption problems, even calling New Mexico “a sewer of drugs” that nevertheless transforms into a river of profits as it flows endlessly along stuffing the pockets of peddlers and bolstering the budgets of law enforcement agencies through such policies as assets forfeitures. Corruption is so ingrained, she insisted, that northern New Mexico youth she comes into contact with almost take it for granted what the future will hold. 

“A lot of kids know they’re going to grow up and be dealers, and brag how they make more money than me,” Lewis said.

Meanwhile, the DOJ has become the next big actor to step up on the stage of the turbulent New Mexico justice system. 

“The Department of Justice will remain actively engaged for as long as necessary to ensure sustainable reform and to help restore the community’s trust in its police department,” Acting U.S. Assistant Attorney General Vanita Gupta vowed. “We look forward to working with Albuquerque’s elected officials, the chief and his command staff, rank and file officers and the many, many people who have contributed to this investigation and settlement.”