Under pressure from a court-appointed federal monitor, city and police officials in Albuquerque struggled for months to draft a policy for when and how Albuquerque police officers should use force against residents.
James Ginger, the monitor, accused the city of foot dragging and lambasted its methods during a lengthy, expensive back and forth.
In late January, Ginger and the city agreed on a new policy and APD published the document April 1.
Officials hailed the guidelines as an important development for an agency whose officers have shot more than 40 people since 2010, many of whom were living with mental illness. It also seemed to be a step in the right direction for the Albuquerque Police Department, which had a long history of excessive use of force, according to a U.S. Department of Justice investigation.
But the chair of Albuquerque’s citizen oversight panel, created in response to the federal investigation, says the city and federal government effectively silenced community concerns during the drafting process and kept the Police Oversight Board and its investigative arm from speaking up during APD’s final review of the policy. The result was a watering down of the key document meant to address what federal investigators called APD’s deeply rooted “culture of aggression.”
In a two-page letter sent to Police Chief Gorden Eden April 18 and obtained by New Mexico In Depth, Beth A. Mohr, chair of the Police Oversight Board (POB), lamented how her board — which must by law spend most of its time working on APD policies — was excluded from giving input on the use-of-force guidelines before they were adopted.
She also highlighted the repeated use of “feasible,” which she described as an “unclear and ambiguous” concept woven throughout the document.
In her letter, Mohr pointed out that “reasonableness” is the legal standard by which the U.S. Supreme Court has said police use of force is to be judged. In other words, would any reasonable officer have taken the same action under the same circumstances?
Feasibility — whether something can be carried out successfully — is not part of that standard.
Longtime APD observers and a national police practices expert interviewed for this story praised the department for hewing to the constitutional standard of reasonableness throughout the policy. But they said, by introducing the concept of feasibility, the drafters undermined that philosophy and wound up with a policy that could make it easier for officers to use force and harder to discipline them if they go too far. It also could confuse officers enough to endanger them in the field.
It might sound like the legal equivalent of splitting hairs, but Samuel Walker, an emeritus professor of criminology and criminal justice at the University of Nebraska, said the word “feasible” is really an “escape clause.”
“In many places, the word ‘feasible’ is superfluous,” Walker told NMID in an interview. “But it’s a dangerous superfluous. The purpose of a written policy is to specify what’s accepted and what’s not. This gives officers and Internal Affairs investigators lots of wiggle room.”
The policy writers used phrases such as “when feasible” and “if feasible” 18 times in 16 pages — far more frequently than in policies for other law enforcement agencies overhauled by the Justice Department — to help guide officers in everything from how much force they should use to when they should de-escalate tense situations to when they should try talking to people before resorting to force.
As Nancy Koenigsberg sees it, the concept of feasibility “could be seen as subtle permission to use force.”
Koenigsberg is a member of APD Forward, the community coalition focused on reform at the department. She also is legal director of Disability Rights New Mexico and an adviser on APD’s court-mandated efforts to better deal with people who are living with mental illness.
“I am concerned because, with this policy in particular, people with mental illness will be subject to it in greater proportion,” she said, referring to the fact that people living with mental illness are disproportionately affected by police use of force in Albuquerque.
It is not clear how the notion of feasibility came to such prominence in the policy.
Reached by telephone, Mohr declined to discuss the letter, saying it “speaks for itself.”
Officials from the DOJ declined to comment for this story. APD, Ginger and the police union did not respond to requests for comment.
Koenigsberg lauded the oversight board for flagging potential problems with the policy, noting that it will be up for review in six months under the terms of the city’s agreement with the DOJ.
“This is not set in stone,” she said. “And if we have a policy that is training officers on the wrong principle, we need to revisit that.”
Policy created amid city-federal tensions
The effort to craft a new use-of-force policy for APD occurred amid ongoing tensions between the city of Albuquerque and Ginger, who accused the city in court of adopting a strategy of “delay, do little and deflect” when tackling reform.
Ultimately, Ginger and his team burned through $100,000 of their taxpayer-funded budget to engage in a lengthy tit-for-tat with APD over the use-of-force policy.
But neither representatives from the Police Oversight Board nor its investigative arm, the Civilian Police Oversight Agency (CPOA), were given a chance to weigh in. They “were effectively told not to comment” when APD officials conducted a final review of the policy earlier this year, according to Mohr’s letter.
“We are concerned that, as the voice of the public, we would not have input on any policy,” Ed Harness, executive director of the CPOA, said. “Time constraints were a big motivator in moving this quickly, I believe. They were trying to make sure the (court-mandated) deadlines were met.”
Assistant Police chief Robert Huntsman and City Attorney Jessica Hernandez in comments at public meetings blamed the delays in part on what the city believed was a prohibition against using model use-of-force policies from other cities as a framework for writing their own.
U.S. Attorney Damon Martinez wrote a letter to Mayor Richard Berry describing Huntsman’s and Hernandez’s statements as “incorrect,” saying the Justice Department had in fact encouraged APD to consider other cities’ policies.
Justice Department officials pointed APD to the Las Vegas (Nevada) Metropolitan Police Department’s use of force policy as a guide, Martinez wrote in his letter, adding that APD relied on that policy in crafting its own.
A comparison of other departmental use-of-force policies
A NMID review of use-of-force policies for several law enforcement departments that have been scrutinized by the Department of Justice found fewer references to the word “feasible” than the 18 times it appears in APD’s policy.
The Las Vegas police department’s policy uses the word three times. So does the police department in Washington, D.C. The Justice Department has praised both cities’ policies for embracing “best practices.”
The Seattle Police Department — operating under an agreement with the DOJ similar to the one in place in Albuquerque — uses “feasible” 10 times in describing how officers may use force.
“I can’t remember reading a use of force policy with so much repetition in it,” Walker, the police practices expert, said of APD’s use-of-force document. The concept of feasibility opens the door for “uses of force that are lawful but awful.”
He pointed specifically to the section of the policy that describes how officers should choose the least amount of force possible to arrest someone. It also says officers should reassess the force they’re using and look for ways to stop or scale back. That section of the policy uses the word “feasible” twice.
“Why not just remove the word?” Walker said, wondering who added the concept of “feasible” to the policy.
“I would have to know the negotiating dynamics,” he said. “But with the department or the city pushing back — that’s how this sort of thing gets in there.”
While Walker, who coauthored a damning report on use of force at APD in the 1990s, questioned the introduction of feasibility into the policy, he also praised numerous aspects of it. The document encapsulates much of the progressive thinking that has found its way into modern policing as the national spotlight has shone brighter on use-of-force issues in recent years.
For example: in many instances, the policy encourages officers to use time and distance when confronting potentially dangerous situations.
Walker also gave high marks to sections of the policy related to how officers should handle people in mental health crises.
Koenigsberg, the APD Forward member and adviser on police interactions with people living with mental illness, said aspects of the APD reform process have been working.
She said the department has been receptive, for example, to advocates’ efforts toward involving people who have experience with mental illness as officers are trained in crisis intervention techniques.
“Part of this whole effort is to re-establish trust between the community and the police,” Koenigsberg said. “When the police are learning how to be open to input from the communities they serve, they can get information that’s extraordinarily useful to them.”
Listening to community groups is key, Koenigsberg said, because APD has over the course of many years become “insular.”
But she pointed out that problems in the policymaking process persist, and not just with the Police Oversight Board. The Mental Health Response Advisory Committee, of which she also is a member, has had trouble getting the department’s ear on policy issues as well.
“That struggle has to be put to bed,” Koenigsberg said. “It has to stop.”