Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT. FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, CIVIL NO: 1:14-CV-1025-RV-SMV ) ) ) Plaintiff, ) ) v. ) BRIEF OF THE LAW OFFICE ) OF THE PUBLIC DEFENDER, ‘THE CITY OF ALBUQUERQUE, ) AMICUS CURIAE ) Defendant. ) | TABLE OF CONTENTS Disclosure Statement and Disclaimer ... 2 Statement of Identity 2 Statement of Interest... D) Statement of Source of Authority to File . Argument .... Use of Body-Worn/Lapel Cameras .. Civilian Oversight... ‘The City’s Commitment to Reform .... Proposed Remedy and Conclusion 14Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 2 of 15 DISCLOSURE STATEMENT AND DISCLAIMER The amicus curiae is the New Mexico Public Defender Department, also known as the Law Office of the Public Defender (LOPD). LOPD is not a corporation. This brief was not written in any part by counsel for any party; no money was contributed to fund preparation or submission of this brief, and no person other than LOPD , its members, or its counsel contributed money that was intended to fund preparing or submitting this brief. STATEMENT OF IDENTITY In 1973, the New Mexico Legislature enacted the New Mexico Public Defender Act to meet the State’s constitutional obligations to provide counsel to indigent persons charged with crimes in New Mexico state courts. The Act provided for a Public Defender structure with state appropriated funding and a centralized administration. ‘The LOPD operating budget for FY 15 is over $44.5 million, employing over 406 staff including 221 attorneys and contracting with approximately 160 private attorneys to represent ‘over 70,000 cases each year. Representation of clients includes misdemeanor, juvenile, and felony cases, through appeal and post-conviction proceedings, if necessary. In addition, LOPD has statewide mental health and capital crimes divisions that provide specialized representation, STATEMENT OF INTEREST All of LOPD’s clients have become LOPD clients as a result of interaction with a law enforcement agency and filing of criminal charges. The vast majority of LOPD clients charged in Albuquerque have been charged by officers of the Albuquerque Police Department (APD), LOPD Albuquerque office personnel ~ including attorneys, investigators, social workers, and other support staff — are in regular and intensive contact with people charged by APDCase 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 3 of 15 officers and with APD officers themselves. Many LOPD clients with cases investigated and charged by APD officers allege improper treatment at the hands of APD officers. It is not uncommon that the alleged improper treatment may have escalated a situation in which our indigent clients, many of whom suffer from substance abuse or mental/emotional disorders — or, frequently, both — act out in ways that could have been avoided had APD officers de-escalated the situation. Often, the ways in which our clients act out in response to APD officers lead to avoidable criminal charges. Once charged, and assuming indigency — which is overwhelmingly the case ~ these alleged victims of APD abuse become LOPD clients. Additionally, and no less importantly, LOPD is invested in the efficient administration of the criminal justice system to ensure protection of our clients’ rights to speedy trial, effective assistance of counsel, meaningful Sixth Amendment confrontation and cross-examination of witnesses and APD investigative personnel, as well as due process rights to preservation and timely disclosure of evidence. All of these constitutional rights are negatively impacted on the one hand by improper, unconstitutional policing and affirmatively protected on the other hand by proper, responsible, and accountable law enforcement practice, LOPD is particularly concerned with the proposed Settlement Agreement or other disposition of this action as it deals with use of body-worn cameras, also known as lapel cameras, civilian oversight of APD, and the City of Albuquerque's commitment to reforming ‘APD. Each of these areas has been a problem area; APD failure to meet reasonable standards in each of these areas imperils LOPD’s clients’ rights.Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 4 of 15 STATEMENT OF SOURCE OF AUTHORITY TO FILE LOPD is authorized to file an amicus brief by the Joint Proposed Order Inviting the Submission of Briefs by Amicus Curiae, executed by the Hon. Robert C. Brack and filed in this matter on December 17, 2014. ARGUMENT LOPD is particularly concerned with three areas of the proposed Settlement Agreement: body-worn cameras (also known as lapel cameras), civilian oversight of APD, and the City’s commitment to reform. Each of these areas has been and remains a problem area for the City of Albuquerque: 1. Body-worn cameras ~ The Chief of Police has demonstrated a reluctance — and failure ~ to properly enforce existing APD policy on body-worn cameras, and the civilian oversight system has not provided a corrective mechanism to remedy this reluctance and failure; 2. Civilian oversight — The recently-passed civilian oversight ordinance fails to address issues raised in the Department of Justice’s April 10, 2014 Findings Letter; in addition, both Albuquerque City Council and Mayor Richard Berry appear to have ignored structural issues ~ cited in the Findings Letter — in the City’s contract with the Albuquerque Police Officer's Association (APOA) which seriously impede effective civilian oversight. 3. Commitment — In addition to the City’s unsatisfactory actions with regard to body-worn cameras and civilian oversight, APD Chief of Police Gorden Eden has not demonstrated an understanding of the root causes or the necessary remedies that produced what is by now a catch- phrase in Albuquerque — the “pattern or practice” of unconstitutional policing. See DOJ Findings Letter, passimCase 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 5 of 15 USE OF BODY-WORN/LAPEL CAMERAS This Court should mandate that any Settlement Agreement or other disposition of this matter modify Section XIII of the proposed Settlement Agreement to include language that specifically requires that the Independent Monitor evaluate and report on the implementation and enforcement of APD policy requiring that APD officers use body-worn cameras to record all encounters with civilians. In humans, a rich body of evidence on perceived social surveillance — self- awareness and socially-desirable responding — proposes that people adhere to social norms and alter their behavior because of the awareness that someone else is watching. It seems that knowing with sufficient certainty that our behavior is being observed or judged affects various social cognitive processes: We experience public self-awareness, become more prone to socially-acceptable behavior and sense a heightened need to cooperate with rules, Self-Awareness to Being Watched and Socially-Desirable Behavior: A Field Experiment on the Effect of Body-Worn Cameras on Police Use-of-Force; http://www.policefoundation.org/sites/e/ files/g798246/f/201303/The%20E ffect%200f%20BodyWorn%20Cameras%200n%20Police?420 Use-of-Force.pdf (citations omitted). ‘A study to determine whether and how much police body-worn cameras improved police behavior by mimicking the effect of “perceived social surveillance” was conducted with Rialto (CA) Police Department (RPD) from Februrary 13, 2012 through February 12, 2013. 1d. at p. 5. During the time period of the study, RPD officers wearing cameras used force half as often as RPD officers not wearing cameras. Id. at p.8. As well, during the study period none of the officers wearing cameras initiated use-of-force incidents, while 4 of 17 use-of-force incidents involving officers not wearing cameras were officer-initiated. Jd. In addition, there were onlyCase 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 6 of 15 three (3) citizen complaints against police in the 12-month study period as opposed to twenty- eight (28) citizen complaints in the 12 months preceding the study. Id, Another study notes reasons for requiring that police record all contacts with civilians: Scott Greenwood, an attorney with the ACLU, explained why the ACLU advocates recording all encounters. “You don’t want to give officers a list and say, ‘Only record the following 10 types of situations.’ You want officers to record all the situations, so when’ a situation does go south, there's an unimpeachable record of it—good, bad, ugly, all of it. This is an optimal policy from a civil liberties perspective.” Greenwood said this approach benefits not only the public but also officers. “Mandatory recording is also what will protect an officer from allegations of discretionary recording or tampering,” said Greenwood. “You want activating the camera to be a reflexive decision, not something that officers have to evaluate with each new situation. If officers have to determine what type of incident it is, before recording, there are going to be a lot of situations in which a recording might have exonerated an officer, but the recording was never made.” Lindsay Miller, Jessica Toliver, and Police Executive Research Forum, 2014, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned, Washington, DC: Office of Community Oriented Policing Services; available at www justice gov/iso/opa/resources/472014912134715246869.pdf, p. 24 of 92. Body-worn cameras can increase law enforcement efficiency. In the U-K., where tests with them began in 2005, studies have shown that they aid in the prosecution of crimes, by providing additional, and “uniquely compelling,” evidence, What Happens When Police Officers Wear Body Cameras, WALL St. J., August 14, 2014; available at http:/Avww.wsi.com/articles! what-happens-when-police-officers-wear-body-cameras-1408320244. In this country, there are reports that body-worn cameras have reduced the time needed for investigation of a police shooting “from two-to-three months to two-to-three days.” Id.Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 7 of 15 Yet despite the evidence showing the effectiveness of body-worn cameras in reducing the incidence of unconstitutional policing and police uses of force and streamlining investigations, APD Chief Gorden Eden resists enforcement of APD policies on body-worn cameras except for repeated violations. Ryan Boetel, APD Chief, IRO Often at Odds Over Lapel Video, ALBQ. J., December 26, 2014, available at_http://www.abgjournal,com/517306/news/apd-chief-iro-are- often-at-odds-over-lapel-video.html. Albuquerque's police oversight ordinance leaves final disciplinary decisions in the hands of the Chief, unless the CI 's decision is appealed to the City’s Chief Administrative Officer. Appeals to the CAO virtually never occur. Conversation with Alan Wagman, Assistant Public Defender and member, Albuquerque Police Oversight Task Force, reporting information learned from Albuquerque Police Oversight Commission members Jonathan Siegel and Richard Shine, January 5, 2015. This leaves body-camera policy enforcement in the hands of an official who has demonstrated a reluctance to enforce APD’s policy on body-worn camera use, even in the face of the DOJ Findings Letter and the proposed Settlement Agreement. ‘Again, this Court should mandate that any proposed Settlement Agreement or other disposition of this matter modify Section XIII of the proposed Settlement Agreement to include language that specifically requires that the Independent Monitor evaluate and report on the implementation and enforcement of APD policy requiring that APD officers use body-worn cameras to record all encounters with civilians.Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 8 of 15 CIVILIAN OVERSIGHT ‘The Department of Justice Findings Letter cited the importance of effective civilian oversight to con: tional policing. The Findings Letter noted failings of the then-existent ordinance. These failings included the following: (1) lack of complainant input into the adjudication of complaints; (2) time limits on the process which made adjudication of complaints difficult or impossible; (3) failure to effectively initiate trend analysis and policy recommendations; and (4) a chief staff member aligned more with the police than the citizenry. ‘The oversight ordinance passed by Albuquerque City Council fails to adequately address these issues; as well, actions by City Council and the Mayor have sabotaged efforts to address these issues. (1) Lack of Complainant Input into Adjudication of Complaints In August 2013, a Police Oversight Task Force (POT) charged by City Council with making recommendations for a new police oversight ordinance began its study and deliberations. POTF recommended an adjudicatory process which explicitly provided a right for complainant input at both the initial adjudication of a complaint and at any appeal on the complaint. Conversation with Alan Wagman, supra. City Council staff, before presenting a draft ordinance to City Council, deleted any notion of meaningful complainant input into the process from the draft ordinance which they presented to City Council, and the Council passed the draft ordinance without relevant amendment to this section. Id. Consequently, the ordinance which ultimately passed and which took effect on January 1 of this year does not mandate an opportunity for complainant input into the initial adjudication ofCase 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 9 of 15 the complaint, nor does it allow for a complainant to bring forward witnesses or challenge the ‘manner or content of the investigation into the complaint. The first mention of a complainant's right to participate is in the appeal process, after an initial adjudication has been completed and a decision issued. Although the ordinance requires that a complainant be advised of appeal rights, LOPD knows from long experience with its client base that alleged victims of police misbehavior are likely to be of low-income and low- education, and therefore generally of limited ability to understand the meaning of an appeal — let alone able to follow the bureaucratic measures necessary for an appeal. ‘Worse, the ordinance provides that all appeals are based upon the record established at the initial adjudication. Therefore, a complainant who jumps the hurdles and manages to file an appeal will be caught in a Catch-22: The complainant will have what a right to be heard in an ‘appeal that is based only upon the record that the complainant was precluded from making, ‘The proposed Settlement Agreement only requires that a complainant have a meaningful opportunity to appeal an adverse decision. It does not address that fact that under the City’s scheme, by the time the matter reaches the appeal stage, any “meaningful opportunity” to appeal will have been foreclosed. (2) Time Limits ‘The Findings Letter recommends removal of all time limits for filing and adjudication of appeals. Since 2010, the contractual agreement between the City of Albuquerque and the Albuquerque Police Officers’ Association (APOA), the police union, contained a provision that all complaints be resolved within 90 days with the possibility of a 30 day extension. City of Albuquerque and Albuquerque Police Officers Association Collective Bargaining Agreement,Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 10 of 15 Effective July 16, 2014 to July 16, 2015, p. 32, available at http:/www.caba. gov! humanresources/documents/ albuquerquepoliceofficersassociationcontract201415.pdf. This time limit was — and is ~ inconsistent with a meaningful civilian review process. The City/APOA contract had expired some years ago and was continuing in effect until negotiation of a new contract. While contract negotiations were proceeding, POTF sent a letter to City Council asking the Council to call upon the mayor to reject the time limit provision in the contract. Conversation with Alan Wagman, supra. City Council never acknowledged receipt of the letter and never notified POTF of any action taken. Id. In addition, in the summer of 2014, Assistant Public Defender Alan Wagman, along with several other residents of Albuquerque, met with DOJ attomeys, including Elizabeth Martinez, Luis Saucedo, Corey Sanders, and others. Jd. At that meeting, Mr. Wagman suggested to the DO} attomeys that DOJ inform Albuquerque Mayor Richard Berry that if he were to negotiate a new contract with APOA which included the time limit on investigation of civilian complaints, it ‘would be considered to be an act of bad faith. Id. LOPD does not know if DOJ took any action, but Mayor Berry later negotiated and executed a contract with APOA which left the time restriction intact (3) Failure to Analyze Trends and Recommend Policy POTF recommended to City Council that the civilian oversight body have extensive discretion to review all complaints for the purpose of analyzing trends and making policy recommendations based upon the trends. Jd. Instead, City Council accepted an amendment that limited the oversight body to looking at only ten percent (10%) of use-of-force complaints — ice, any complaint which did not involve use-of-force is out of bounds, and any complaint beyondCase 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 11 of 15 the 10% is similarly out of bounds. The unnecessary and counter-productive limitation on data available for analysis cripples the ability of the oversight body to carry out the essential functions of trend analysis and policy recommendations — functions on which the oversight body is ‘mandated by the ordinance to spend at least half its time. (4) Ensuring staff represents the citizens and not the police The Findings Letter notes the improper extent to which historically the staff of the civilian oversight process had aligned itself with the police rather than with the citizens. An additional effect of the limitations on access to data is to cripple the ability of the oversight body to review and evaluate the work of its paid staf. The alignment of the paid staff. in the past has led to citizen mistrust of the process. ‘These limitations will only ensure that the oversight body will continue to have difficulty gaining public trust Despite these failings of the oversight ordinance, the City administration’s representative, Scott Greenwood, addressed City Council at the session where the ordinance was being considered. Mr. Greenwood spoke against any delay to consider and correct any deficiencies in the ordinance and asserted that DOJ had “vetted” the ordinance. Video of September 18, 2014 Albuquerque City Council Meeting at 1:22:07, cabq.granicus.com/MediaPlaver.php? view id=2&clip_id=92. Mr. Greenwood told City Council, “If you defer this and kick the ean down the road, I won't have an agreement [with DOJ] to bring you.” Jd, at 2:16:12. City Council, following Mr. Greenwood’s lead, passed the ordinance on the spot. Id, at 4:08:28 ‘A few weeks later, Assistant Public Defender Alan Wagman and attorney Nancy Koenigsberg, both POTF members, met with DOJ attomeys, including Elizabeth Martinez. andCase 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 12 of 15 Corey Sanders. Conversation with Alan Wagman, supra, When asked about Mr. Greenwood’s representations about DOJ having “vetted” the ordinance, Mr. Sanders responded that DOJ had not involved itself in the particulars of the ordinance and that he had watched a video of the council meeting. Jd, Mr. Sanders also remarked that when he watched the video and saw what Mr. Greenwood had said, he was “surprised.” Id. ‘THE CITY'S COMMITMENT TO REFORM All of the above casts doubt on whether the City of Albuquerque is truly committed to real reform of APD. This is special cause for concer because, in the words of civil rights attorney and APD Forward member Randi McGinn, the proposed Settlement Agreement just “putfs] a monitor over the fox who is watching the henhouse.” Ryan Boetel, Civil Rights Team has Eye on DOJ-APD Deal, ALBQ.J., November 6, 2014. It is important that “the fox” adopts the values of the monitor. This Court should not accept the proposed Settlement Agreement until it is satisfied that the City of Albuquerque is paying more than lip service to the goal of reform. However, APD Chief Gorden Eden’s restructuring of APD and his promotions to high ‘echelon command positions raise further questions concerning the administration's commitment to reform. On April 8, 2014, Chief Eden created the position of deputy chief to oversee reforms. Patrick Lohman, APD Names New Deputy Chief to Oversee Reforms, ALBQ. J., April 8, 2014. Chief Eden had the clear backing of Mayor Berry for his appointment of Robert Huntsman to the position. Jd. This was despite Deputy Chief Huntsman’s history in command of the SWAT Team. Id, SWAT was singled out by DOJ for command, training, and supervision problems which caused or contributed to APD's use of excessive force. DOJ Findings Letter, April 10, 2014, pp. 15, 35-36. 12Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 13 of 15 ‘Additionally, in May of last year, Chief Eden created two new positions with a rank of ‘major, each of which would oversee APD operations in half of the city. Patrick Lohman, APD Chief Defends Promotion of Officer, ALBQ. J, May 17, 2014, available at |tp:/iwww abgjournal.com/402003/news/apd-chief-defends-promotion-of-officer.html. Chief Eden’s appointment to command the eastem half of the city was Timothy Gonterman. Id. Major Gonterman, along with two other officers, were subjects of a civil rights lawsuit which cost the City $300,000 in 2006. Jd. Notwithstanding that Major Gonterman had two other officers with him, the major used a taser on a civilian’s ear until the ear was partially burned off. id. Perhaps more troubling, although Major Gonterman now says he prides himself on being a use of force instructor and on his expertise in crisis intervention, officers in Major Gonterman’s command who shot homeless camper James Boyd three times in the back in March 2014. Id. Two of the officers involved are now facing murder charges. Mike Gallagher and Ryan Boetel, Officers Charged with Murder, ALBQ. J., January 12, 2015. The City’s lack of transpareney is another cause for concern about the City's commitment. On January 13, 2015, following an officer-involved shooting death, the City barred the District Attorney's office from a briefing on the shooting. Jeff Proctor, DA: My Office Kicked Out of Police Shooting Investigation, KRQE-TV, January 13, 2015. The City’s lack of commitment to reform is a serious problem: Legal and criminological professionals say the success of a reform campaign depends to some extent on clearly defined reforms and community involvement but primarily on the willingness of an agency's top law officer. David Harris, a law professor at the University of Pittsburgh, recently told the Times-Picayune of New Orleans: "If you have a leader who is not committed to it, who has it stuffed down his or her throat, who doesn't believe in it, who doesn't think it is necessary, it is going to be very difficult to get long-term results.” 13Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 14 of 15 [Samuel] Walker, the University of Nebraska professor emeritus, who has written 11 books on policing, said a flawed police culture can be difficult to overcome . Dennis Wagner, Arpaio Now Faces Difficult Options, Ariz. REPUBLIC, December 17, 2011, available at http://www.azcentral.com/news/articles/201 1/12/16/201 1121 6arpaio-faces-difficult- options.himl. E.g., in Pittsburgh, PA and Oakland, CA, lack of official commitment led to failure of reforms. Id. PROPOSED REMEDY AND CONCLUSION The proposed Settlement Agreement essentially sets forth a series of goals and leaves it up to the City of Albuquerque and APD to design and implement a plan and/or program to achieve those goals. Had there been no history of bad faith by the City and APD, this might be ‘an acceptable plan on which to go forward. However, Chief Eden’s ongoing refusal to enforce disciplinary policy on body-worn cameras ~ even as the proposed Settlement Agreement mandates the policy — makes evident that APD is not ready to take the necessary steps forward. Mayor Berry's failure to remove the improper time limits on resolving complaints from the APOA contract demonstrates the administration's unwillingness or inability to take the difficult stands necessary to correct the decades-old problems in APD. City Council showed itself to be unwilling or unable to withstand pressure from the Mayor's representative. APD Chief Eden's appointments to high-level positions — ostensibly for the purpose of compliance with DOJ-designated reforms ~ do not inspire confidence in the Chief's or the Mayor's commitment to reform. Finally, that the Department of Justice signed off on a proposed Settlement Agreement that leaves it in the hands of the City’s actors t ;plement all changes and that fails to address 14Case 1:14-cv-01025-RB-SMV Document 62 Filed 01/14/15 Page 15 of 15 serious issues in the oversight process — issues that DOI itself pointed out ~ makes clear that the Court should take an assertive role in this process. Ata minimum, as part of any resolution of this matter, this Court should mandate the following: first, that APD officers be required to wear and activate body-worn cameras during all encounters with civilians and second, that al! concerns about civilian oversight pointed out in the Findings Letter be addressed. To secure both of these ends, this Court should insist that the Independent Monitor review and report to the Court concerning any final disciplinary ruling by the Chief of Police that runs counter to the recommendations of the civilian oversight body. Any such report should be required to include the Independent Monitor's evaluation of whether the Chief's decisions are appropriate. And the Court should be prepared to act to remedy any problems revealed by these oversight measures. Furthermore, this Court should take forthright, measures to satisfy itself that the parties are actually engaging in good faith. This Court should also make clear that its level of tolerance for foot-dragging and resistance to change will be minimal. The people of Albuquerque are depending upon this Court to effectively end APD's “pattern or practice” of unconstitutional policing. Respectfully submitted, si Richard Pugh, District Defender Law Office of the Public Defender 505 Marquette NW, Suite 120 Albuquerque, NM 87102 (505) 369-3571 15