Doc. 285: June 8, 2017, Status Conference (Transcript)

June 8, 2017 Status Conference

Document 285 is the transcript of the telephonic status conference held on June 8, 2017. 

The first topic for discussion was the status of the Monitor's "Paragraph 298 Outcome Assessment."  Dr. Ginger states that the data being provided by the City is neither accurate nor valid.  

But City Attorney Hernandez described an entirely different scenario, in which Dr. Ginger was technologically challenged and responsible for his inability to access the City's new "Data Warehouse," which Hernandez describes as "essentially an interface where the user can enter a query that will access data directly realtime from these 10 to 15 different databases that store all of the information relevant to paragraph 298. 

I believe that in March of 2017 the parties decided that it would help if he had a new laptop . . . that would give him access to all the information . . .

Hernandez contends that "the data in the data warehouse is accurate."  She promised to give Dr. Ginger whatever technical support he needed to access the data.

APD's Promotional Policy

John D'Amato, representing the Police Union, agreed with Assistant City Attorney Samantha Hults that the parties "are kind of at an impasse at this point. . . ." Judge Brack commented that "I'm glad for dialogue to continue so long as it's moving in a positive direction, but if there's an impasse, get it in front of me and we'll deal with it by motions practice."

The City attorneys told the Judge that the promotional policy, a City Human Resources policy, "does have to go to public hearing and comments." Judge Brack said he was inclined to "let you all work through your process, and if it makes more sense for me to address whatever impasse you've got prior to going public for comment that works fine for me.

Policy Review Process

The DOJ and City attorneys described a new process that would present just three policies for review each week to the policy review boards. Judge Brack noted that "in this instance everyone's working together to really solid result."

Public Records Requests

City Attorney Jessica Hernandez stated that the City is in a "difficult position" with respect to IPRA requests for CASA related communications and asks for guidance by the Court. Mr. Killebrew suggests a Rule 26(c) protective order and Dr. Ginger stated that he has "not come across this issue before in other cases." Mr. D'Amato stated on behalf of the APOA that he would "join in motion" and Judge Brack said he would "consider the motion." 

Hernandez described the documents requested as 1) communications among the parties and the monitor; 2) communications between the parties and the Court; and 3) drafts of the monitor's reports. She stated that "the State Inspection of Public Records Act is very broad and provides for pretty significant sanctions against a governmental entity, including daily fines, $100 per day if we do not produce records that we are obligated to produce."

Judge Brack responded that the IPRA requests present "an interesting question, obviously, about my interpretation of our responsibilities under the CASA and State law. "

Doc. 283: Schedule for City’s Report and Action Plan

On Friday, June 2, 2017, the DOJ and City filed a Joint Motion to Clarify Court's Directive. They were asking the Judge to advise them whether to distribute copies of the City's draft Report and Action Plan concerning community and public involvement to the amici and "stakeholders" and whether to allow comments before filing it with the Court. Judge Brack's new Order, Doc. 283, sets a schedule that requires distribution of the draft report by June 12 and "any input in writing to the City no later than June 27, 2017." 

Doc. 282: Joint Motion to Clarify

Should Police Oversight Groups See Draft Reports?

An unusual motion filed last Friday in the DOJ's Section 14141 police reform lawsuit seeks clarification of a Judge's "Directive Regarding City of Albuquerque's Report and Action Plan." 

The "Joint Motion" by the City and Department of Justice asks Judge Brack to decide whether the City's civilian oversight agencies get to see and comment on the City's latest plans before they are approved by the parties and Monitor and filed with the Court.

D-282-Joint-Motion-Clarification

The Motion was filed with the approval of the Settlement Agreement's compliance monitor, Dr. Ginger. The APOA ostensibly takes no position on the issues..

Negotiations between the U.S. Department of Justice and the City of Albuquerque more than three years ago resulted in a overseen by a compliance monitor and federal district judge.

The agreement included a substantial measure of community and citizen involvement, including the continuation of a police oversight agency, the CPOA, and a newly organized 9-member Civilian Police Oversight Board to investigate and report on policy and practice compliance. The agreement and City Ordinances also added a Mental Health Response Advisory Committee and 7 area Citizen Police Councils.   The Oversight Board members have persistently complained about being shut out of meaningful reform of policies or practices by the City and its lawyers.

The joint motion filed by the DOJ and City's lawyers on Friday, June 2, asks for "an order clarifying the Court's directive that the City file a 'report and action plan' addressing certain matters raised during the May 10, 2017, hearing."

The parties are essentially asking Judge Brack whether he intended to include the Civilian Police Oversight Board, the Mental Health Advisory Board, and the Community Policing Councils in the mandatory but up to now closed-to-the-public discussions (or "review process") among the parties - the APD, the Police Union, and the DOJ - and Monitor. 

The May 10, 2017, presentation of the Monitor's 5th Report included criticism by some of the community advocacy groups and the Police Oversight Board that they were being ignored and bypassed. Judge Brack ordered the City to file a "written report and action plan" within 30 days about how it would be addressing the lack of citizen and community involvement and participation that has marred the reform process up to now.

That Report would have been due to be filed on June 9. But after hearing the oversite boards' concerns and at the request of the DOJ, Judge Brack told the City to provide a draft report and action plan "to the Parties within 30 days and file its final report and action plan at 45 days, or June 24, 2017."

Despite the apparent intention of the Court to include and involve the public and its representatives, Judge Brack said nothing either way about providing the draft report to the oversight, mental health, or community policing boards and members, or about allowing them an opportunity to comment and suggest changes.

The motion concludes by asking:

whether the City should provide its draft report and action plan to the Amici and CASA Stakeholders when it provides the draft to the Parties on or before June 9, 2017, and consider their input in finalizing the report and action plan that it files with the Court on or before June 24, 2017.

Dr. Ginger's Draft Reports

Similar questions arose a few weeks ago  when the Police Oversight Board members were allowed to see, but not comment on, draft copies of the Monitor's Fifth Compliance Report. Although the preliminary report was distributed to various groups and individuals including the APOA, neither the draft report or the comments on that report have been disclosed to the public.

At that time the CPOA's Executive Director and Dr. Ginger both cited a paragraph in the Settlement Agreement, paragraph 315, purporting to exclude Monitor Reports and communications among the parties from the definition of "public records:"

315. The Monitor is not a state or local agency or an agent thereof, and accordingly, the records maintained by the Monitor or communications between the Monitor and the Parties shall not be deemed public records subject to public inspection.

While the issue is still apparently not being discussed publicly, pending IPRA requests currently challenge the contention that proposals, comments, and communications among the parties are secret and not public records subject to inspection under the State law.

Allowing the oversight boards and CPCs to participate in the previously closed "review and report" process now would surely open that process to the public and the press, and whether the "parties" and Court can allow that to happen may be the real question the DOJ and City's Joint Motion for Clarification is asking the Judge to answer.

L.A.P.D. Sued for Public Records

The ACLU and other plaintiffs cite ‘systemic violation’ of a state law requiring timely disclosures.

The American Civil Liberties Union has joined with a journalist, a college professor and an activist to sue the Los Angeles Police Department over what they describe as a “systemic violation” of California’s public records law.

The lawsuit, filed Tuesday, accused the LAPD of failing to comply with the California Public Records Act by not responding to requests within the time frame mandated by the law or by ignoring inquiries altogether.

The civil complaint documents nearly a dozen examples of such requests, including some that were allegedly made years ago and have yet to be answered.

“More and more, police departments throughout the United States acknowledge the value of transparency — to increase public trust, promote better law enforcement, and facilitate effective oversight,” the lawsuit stated. “The LAPD’s pattern and practice of violating the [state’s records act] and ignoring requests for public information is not only unlawful, but also out of step.”

The suit asks the court to compel the LAPD to follow the law and order the department to track — and report publicly — how it responds to public records inquiries for at least three years.

An LAPD spokesman said the department had no immediate comment Tuesday morning.

Adrienna Wong, an attorney with the ACLU of Southern California, said public records allow residents to evaluate how their law enforcement agencies are performing and look for ways to improve them, and can help improve community trust in police.

“All of that information is really relevant to this public discussion and has real concrete impacts,” she said.

Though commonly used by journalists and advocacy groups such as the ACLU, public information can be requested by anyone under the California Public Records Act.

Once an agency receives a request filed under the Public Records Act, it must respond within 10 days, saying whether it will provide that information. The law allows agencies to make some exceptions if there are “unusual circumstances,” giving them an additional 14 days, at most, to respond.

If an agency determines the information can be released, the law requires it to provide an estimated date and time when that will happen. Once an agency decides records are public, the law states, it must release them “promptly.”

The ACLU filed the lawsuit with three other people: Ali Winston, a journalist whose stories have been published by the Center for Investigative Reporting; Kelly Lytle Hernandez, a UCLA professor known for her work on race, policing and incarceration; and Shawn Nee, a community activist and photographer based in L.A.

The lawsuit cataloged records inquiries made by Winston, Hernandez or Nee that the LAPD failed to respond to by the 10-day or 24day deadline.

Such was the case in early 2014, the lawsuit said, when Winston requested records from the LAPD about facial recognition cameras as well as software the department used to target potential criminals. Three years later, Winston alleged, the department still hasn’t responded.

Times reporters have also experienced lengthy delays after requesting records from the LAPD.

Recently, the LAPD’s Discovery Section — which handles such requests — has sent automatic replies that say the processing time for requests is six to eight weeks “due to limited staffing.”

The ACLU filed its own inquiry in November, asking for information about the oldest records requests the LAPD had yet to fulfill and the department’s policies for handling such requests. On the same day, the lawsuit stated, the LAPD responded via email, confirming only that it had received the inquiry.

As of Wednesday, the lawsuit said, the ACLU had heard nothing more.

A copy of the Complaint is here.

Flipping Off Officer D.

From the overlooked, unexplored and unreported archives of the Albuquerque Police Oversight Agency, this remarkable case appears.

This complaint and report, in which a driver finds fault with the driving of an APD officer and shows his displeasure, not once but multiple times with his middle finger, is astonishing first just because it happened, but then because no one seems to have noticed or recognized the significance of what had happened or reported it to the public.

Here then — almost too strange to be true — is the story of the April 23, 2012, encounter between an Albuquerque driver and Officer D. first as described in the complaint to Albuquerque’s police oversight agency:

CPOA-Dear-Related-Driver-Complaint

According to the investigation report, Mr. Driver lives in Portland, Oregon, and Albuquerque. His name, Will B. Driver, appears especially designed to advance complaints of poor driving.

The agency’s April, 2013, report charged and investigated Officer D. for not driving in a careful and prudent manner, making an improper stop and arrest, acting officiously or permitting personal feelings to influence decisions, being antagonistic and unprofessional and not recording the incident.

Only the charges of reckless driving and failing to record were sustained.

CPC-072-12-Driver-Findings-Letter

According to the Police Oversight Agency’s letter to Driver,

“A belt tape or video from a lapel camera would have been extremely helpful in proving or disproving the allegations made by the complainant.  Officer D. did not ensure that the his (sic) belt tape or video tape recorder was working before the beginning of his shift. . . Chief Schultz agrees with these findings. The Complaint and these findings are made part of the officer’s permanent record. The Police Oversight Commission agrees with this finding.”

The incident happened on April 23, 2012, just five years ago.

Of course, Officer D. is Jeremy Dear, who shot and killed Mary Hawkes and was fired from his City of Albuquerque employment for repeatedly not turning on his recording equipment. The City appealed that ruling and the appeal was remanded back to the City Personnel Board.

Although the Personnel Board decided that termination was too severe for the failures to record and ordered Dear returned to work, the City has refused to return Dear to work pending the outcome of its appeal. The case against Dear for shooting Mary Hawkes is also reportedly under investigation by federal authorities.

Albuquerque’s Civilian Police Oversight Board has repeatedly scheduled, re-scheduled, and then delayed or cancelled its mandatory review of the officer-involved shooting case against Dear.

It does not appear that this complaint — or most of the other citizen complaints against Jeremy Dear that were brought before Albuquerque’s civilian oversight boards in the years prior to his shooting of Mary Hawkes — have ever been publicly disclosed, discussed, or reported.

CPOA to Investigate Driving Complaints

On February 10, 2013, a police van driven by Sgt. Adam Casaus crashed into Ashley Browder and her younger sister, Lindsay Browder, at the intersection of Paseo del Norte and Eagle ranch NW. Twenty-one year-old Ashley was killed and her sister was injured.  The police vehicle was driving at a high speed.

A few weeks ago the City announced the settlement of the case brought by the Browder family, with the family receiving an $8.5 million settlement in the case.

As part of the settlement the City agreed to provide additional driver training and will work toward implementing other safety provisions and City police cars will bear bumper stickers asking people to report careless or dangerous drivers to 311 .

Ed Harness, Director of the Albuquerque Civilian Police Oversight Agency and Board. stated that the Oversight Board would be getting even more complaints,due to implementation of the plan, to direct all complaints about vehicle accidents to the Oversight Agency.

That, according to an obviously unhappy Harness, would “inundate” the Agency with vehicle accident complaints.

The Police Oversight Board members — whose work was intended to be an integral part of the police reform effort in Albuquerque — should not be surprised by the Chief’s new plan to keep them busy overseeing APD’s motor vehicle accidents and the drivers who caused them.

CPOB Meeting: April 13, 2017

The meeting on April 13, 2017, of the Albuquerque Civilian Police Oversight Board began with a presentation critical of with police and policy reform and the oversight process by Jim Larson. There was also a lengthy discussion about CIRT, or use-of-force cases that are now scheduled to be reviewed by both the CPOB and APD’s Force Review Board.

After another unexplained “Executive Session” and “lunch” the Board returned and heard Sue Brown interject a comment about Dr. Ginger’s Fifth Independent Monitor Report, which is being read by the Oversight Board members who have been ordered not to speak about it.


And Board Chairwoman Joanne Fine described meetings she has attended and announced that there would be a meeting with the parties — APD, APOA, DOJ, and Dr. Ginger — on April 20. She said she was hopeful that the meeting would advance a collaborative effort involving the Police Oversight Board.

But what might be the most significant disclosure came at the very end of the meeting.

In response to Dr. Ring’s question about an increase in the complaint rates, Harness stated that the Oversight Board would be getting even more complaints, due to implementation of a plan resulting from the settlement of the case by the Browder family against former-officer Adam Casaus. The City agreed to put bumper stickers on all police vehicles and to direct all complaints about vehicle accidents to the Oversight Agency.

That, according to Harness, would “inundate” the already seriously backlogged Oversight Board with vehicle accident complaints.