In a May 9 report on KRQE-TV, city police officials and instructors touted the training — and the new policy that underpins it — as a leap forward for the long-troubled Albuquerque Police Department as it works to comply with a raft of federally mandated reforms aimed at curing a culture that led to years of excessive use of force by officers.
But as New Mexico In Depth reported on May 2, national police practices experts, longtime APD observers and the appointed city police watchdog group believe the policy’s drafters weakened the new use of force policy by infusing it with the concept of feasibility.
From last month’s NMID story:
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.
Experts said the over-reliance on feasibility — that is, allowing a judgment call on the part of the officer about whether something can successfully be accomplished — could make it easier for officers to use force, more difficult to discipline officers who go too far, and create enough confusion to endanger city police in the field. One expert said the inclusion of the concept gave “officers and Internal Affairs investigators lots of wiggle room.”
City officials still won’t say who inserted “feasible” into the policy so many times. APD has not responded to multiple requests for comment and, this week, neither James Ginger, the court-appointed federal monitor overseeing the reform effort, nor City Attorney Jessica Hernandez responded to interview requests.
However, a series of emails and drafts of the use of force policy obtained by NMID through the Inspection of Public Records Act (IPRA) sheds some light on the policymaking process. The documents also show several inconsistencies in statements city officials made at public meetings and in correspondence with Justice Department attorneys about how they crafted the policy and who was involved.
APD’s old use of force policy, dated April 2009, contained the word “feasible” just twice.
Early in the reform process, on May 14, 2015, Hernandez sent a draft policy to Ginger and others that used the word five times. Ginger rejected the policy in a reply email to Hernandez and others three weeks later, on June 8, saying it was “cumbersome” and failed in key spots to translate the “must” requirements laid out in the city’s agreement with the Justice Department into “how” language that would enable APD to implement the policy and train officers on it.
Among Ginger’s concerns was the use of “feasible,” which he said in his email that the city had failed to define.
In a subsequent email to Hernandez and an APD official, dated September 28, Ginger noted that the city had made substantial progress in a second draft of the policy. That draft was not included in the records turned over to NMID after the IPRA request, so it is not clear how many times it included the word “feasible.” In his emailed comments, Ginger again mentioned the concept, saying that although APD had by then defined “feasible,” the definition needed to include a reference to officer and community safety.
By December, the APD use of force policy contained 18 uses of the word “feasible,” according to a draft Hernandez sent to Ginger and others, including Justice Department officials. Hernandez’s December email showed that the city was anxious to get the policy approved. She reminded Ginger and Justice Department lawyers of their 15-day deadlines to approve or reject the city’s changes to the policy and noted that if they missed the deadlines, “they are making it impossible for the City to meet its obligations under the” DOJ agreement.
The draft Hernandez sent on December 18 contained APD’s red-line changes to the policy. Some of the department’s notes lend weight to an allegation Damon Martinez, U.S. Attorney for New Mexico, leveled against her and Assistant Police Chief Robert Huntsman earlier this year. Martinez accused the pair of making false statements about why APD had delayed finishing the policy.
The notes show that APD was, in fact, reviewing other cities’ use of force policies as it was crafting its own — contrary to public remarks Hernandez and Huntsman made when city councilors pressed them on why it was taking so long to draft an acceptable policy.
The emails NMID obtained through its public records request show one more inconsistency, as well. On January 7, Assistant City Attorney Jenica Jacobi sent a final version of the policy to Ginger, Hernandez and others. In her email, Jacobi wrote that the Citizens Police Oversight Agency (CPOA) had provided “input” that led to changes in the use of force policy.
That’s not true, according to an interview with the executive director of the CPOA and a letter the chair of the Police Oversight Board sent to Police Chief Gorden Eden. In fact, the letter said, the board and the CPOA had been frozen out of the policymaking process.
The APD use of force policy was published, with the blessing of Ginger and the Justice Department, on April 1.