In court, city rips DOJ’s work on APD

ALBUQUERQUE (KRQE) – A blistering set of findings laid out in a 46-page report from the U.S. Department of Justice will serve as a guide for what many observers call long overdue reforms at the troubled Albuquerque Police Department.

The report may also be something else: A piece of evidence against the City of Albuquerque.

Local civil rights attorneys and others are awaiting a decision from Chief Judge Christina Armijo of the U.S. District Court, who will decide that question. If Armijo decides to let the report come in to the court record for Russell Tenorio’s lawsuit against the city and Brian Pitzer, the APD officer who shot him in November 2010, it could lead to unprecedented findings that the city’s policies and practices were unconstitutional and that they led to police officers using excessive force against citizens.

A decision to allow the report as evidence could also serve as a powerful lever in settlement negotiations for that case and others. Such a choice wouldn’t necessarily lead to larger payouts to plaintiffs suing the city, but it would create the kind of scar on a reputation that no city wants.

The cost to the city, and to taxpayers, of lost or settled lawsuits stemming from officer-involved shootings has soared past $30 million since 2010. With each new shooting by an APD officer comes the possibility of another lawsuit and more payouts.

It is unclear when Armijo will rule on a motion to admit the DOJ report from Tenorio’s attorney, Rachel Higgins.

Similar reports from the DOJ, involving police departments, jails and other entities, have been in allowed in as evidence in some cases around the country. Federal judges in other cases have ruled that DOJ reports aren’t admissible.

Higgins declined to comment for this story; so did the city.

But both sides had plenty to say during a hearing on June 18, 2014. KRQE News 13 obtained a transcript of that hearing, and it raises questions about whether Mayor Richard Berry’s administration is truly embracing DOJ-led police reforms, as he has said publicly many times.

Adam Walinsky, a police practices expert who helped retrain the police in Baltimore, Md., said real change requires an admission that there’s been a problem. And DOJ or no DOJ, Walinsky said, lasting reform is impossible if city administrators aren’t on board with big changes.

“If you don’t say that we have a problem, how can you tell a police officer that he has to change the way he’s working?” Walinsky said.

That kind of admission hasn’t happened in Albuquerque, though the city believes that it can publicly embrace reform while still fighting the DOJ report in court.

“I think I’ve seen officers, maybe, start to get it,” local civil rights attorney Cammie Nichols told News 13. “And not necessarily, ever, the institution — at least not publicly ever acknowledge anything was wrong.” Nichols is suing the city in the case of Chandler Barr, who was shot by APD Officer Leah Kelly. The case is similar to the Tenorio shooting, though Nichols has no role in the Tenorio lawsuit.

Unsurprisingly, Assistant City Attorney Stephanie Griffin fought hard on June 18, 2014 to keep the DOJ report out of the court record. Higgins, on the other hand, argued that the report — and its central conclusion that APD has a longstanding pattern of violating people’s civil rights, particularly through the use of force, and a leadership culture that supports it — is a relevant piece of evidence that speaks to some of Tenorio’s claims.

Both attorneys made arguments about whether the DOJ report met the requirements of the federal rules of evidence.

Griffin hammered the DOJ’s work in Albuquerque, questioning the feds’ methodology, their processes and their conclusions. She pointed to “inconsistent language” and “inaccuracies” in the Justice Department’s report.

Her remarks stood in stark contrast to Berry’s recent public remarks about the DOJ and its investigation of the police in Albuquerque.

“We’re here at the table,” Berry said July 25, 2014 during a joint news conference with local U.S. Attorney Damon Martinez. The two were announcing an agreement in principle to reform eight areas of APD and install a federal monitor to oversee the changes.

“I think this speaks volumes that we’re putting this joint statement of principals out today,” the mayor said. “We’ve fully embraced and made a full commitment to reform with the Albuquerque Police Department and our community that’s based on the findings letter.”

Berry went even further, saying: “We took that findings letter on April 10, and we pivoted into solution mode. As a mayor and as an administration, we haven’t spent a lot of time … you know, we have the findings, we can understand what’s in them, now let’s use that as a basis point.

“We’re spending much more of our time crafting the actual agreement than we are fighting or not fighting the findings letter.”

Judge Armijo pressed Griffin about the difference between the city’s low legal opinion of the DOJ’s investigation. She said she’d seen the city’s news conferences, at which Berry has used words like “proactive” to describe the city’s position on police reform and its collaborative relationship with the Justice Department.

“If the report overall is so flawed… wouldn’t those actions seem to at least indicate there’s some credibility to some of the critical comments about the need for change or improvement?” Armijo asked.

Griffin responded: “Your Honor, we’re always making changes… And with respect to the DOJ, yes, we are going to make changes because we ultimately know if we don’t, they’re going to go ahead and file the action.”

Armijo asked if changes to APD policy were being made out of necessity or if they were being made “to forestall any further action or foreclose any further action?”

Assistant City Attorney Griffin replied: “I think changes are being made because the administration is committed to being proactive in this regard and recognizes that, you know, although the DOJ has made its findings and we don’t necessarily agree completely with the findings, I can tell you what typically has been done in other jurisdictions is that there is always a blanket denial of any wrongdoing on behalf of the entity. However, I think it’s important, I think for purposes of the community, is that we keep an open mind and are receptive to make changes.”

Griffin noted that Berry’s administration already has made changes at APD as a result of a city-contracted review by the Police Executive Research Forum.

“Just because we’re making changes doesn’t mean that we’re agreeing that there is an unconstitutional practice and custom of excessive force,” she told the judge.

City Chief Administrative Officer Rob Perry insisted that it’s consistent for the city to hold both views,  that it can move forward with reforms and work with the DOJ even though there’s disagreement over the nature of APD’s problems.

But Berry refused an interview request from News 13 to discuss the apparent disparity between those two positions.

“I think that’s maybe why they’re pushing back against (having the DOJ report admitted in court) so hard,” said Nichols, the civil rights attorney. “Because they want to maintain sort of this double-edged façade that on one side: ‘We’ve never done anything wrong,’ and on the other side: ‘We’re cooperating.'”

She and Walinsky, the police practices expert, agreed that if the city doesn’t have its heart in reforming APD, the excessive force called out by the Justice Department, and the lawsuits that follow, are sure to continue.

Nichols has a case in which she, too, is trying to get the Justice Department’s report admitted as evidence. The value for plaintiffs, she said, is that it could open the door to holding the city “from the chief of police on down” responsible and liable for unconstitutional uses of force by the police.

And while that doesn’t necessarily mean more money for people suing the city, Nichols said, it could lead to another mechanism to force reforms on APD.

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