U.S. Department of Justice

Civil Rights Division

Office of the Assistant Attorney General Washington, DC 20530

April 10, 2014

The Honorable Richard J. Berry Mayor City of Albuquerque One Civic Plaza NW, 11th Floor Albuquerque, NM 87102

Re: Albuquerque Police Department

Dear Mayor Berry:

We write to report the findings of the Department of Justice’s civil investigation of the Albuquerque Police Department (“APD” or “the department”). Our investigation focused on allegations of use of excessive force by APD officers under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). Section 14141 makes it unlawful for government entities, such as the City of Albuquerque and APD, to engage in a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution or laws of the United States. The investigation was conducted jointly by the Civil Rights Division and the United States Attorney’s Office for the District of New Mexico. This letter is separate from, and does not address, any federal criminal investigation that may be conducted by the Department of Justice.

Based on our investigation, we have reasonable cause to believe that APD engages in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment and Section 14141. Our investigation included a comprehensive review of APD’s operations and the City’s oversight systems. We have determined that structural and systemic deficiencies—including insufficient oversight, inadequate training, and ineffective policies— contribute to the use of unreasonable force. At the conclusion of this letter, we outline the remedial measures that we believe are necessary to ensure that force is used in accordance with the Constitution. In some instances, these recommendations build on measures and initiatives that are already underway within the department.

We recognize the challenges faced by officers in Albuquerque and in communities across the nation every day. Policing can be dangerous; at times, officers must use force, including deadly force, to protect themselves and others in the course of their work. The use of force by police is guided by the need to protect public safety and the duty to protect individuals from unreasonable searches and seizures under the Fourth Amendment. While most force used by APD officers is within these strictures, a significant amount falls short of these requirements. Although APD has taken steps to allay the public’s concerns about the department’s use of force,

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these initiatives have been insufficient to ensure consistent accountability. They also have not addressed longstanding deficiencies that have allowed a culture of indifference to constitutional policing and insularity to develop within the department.

We are aware that the release of our findings occurs at a time of transition for the department’s leadership and amid continued tension around recent officer-involved shootings. In particular, fatal confrontations with individuals experiencing mental health crises continue to cause significant public concern over the department’s ability and willingness to consider the safety and well-being of the individuals in distress. Throughout our investigation, APD leadership has been receptive to our preliminary feedback and technical assistance. However, as outlined in this letter, more work is necessary to ensure that officers have the proper tools, guidance, training, and supervision to carry out their law enforcement responsibilities safely and in accordance with individuals’ federal constitutional rights. We appreciate your expressed willingness to embrace many of the changes we have highlighted in our conversations with APD. We will continue to work collaboratively with you, the department’s leadership, and other stakeholders to develop sustainable reforms that will resolve our findings. However, if we cannot reach an appropriate resolution, Section 14141 authorizes the Department of Justice to file a civil lawsuit to “eliminate the pattern or practice” of police misconduct. 42 U.S.C. § 14141.

We thank you, APD, and other city officials for your cooperation and professionalism during our investigation. We received invaluable assistance from the department’s leadership, counsel, and rank-and-file officers. We also thank community members for bringing relevant information to our attention and for sharing their experiences with us. We are encouraged by the many individuals who took an active interest in our investigation and who offered thoughtful recommendations. We appreciate those individuals who came forward to provide information about specific encounters with APD, even when recounting such events was painful. We know that many residents care deeply about preventing the types of incidents described in this letter and have a genuine interest in supporting the many men and women of APD who uphold their oaths and keep Albuquerque safe. Based on this extensive cooperation and participation, we stand ready, and are encouraged that we will be able, to work together with the City, APD, and other stakeholders to address our findings methodically and expeditiously. By promoting constitutional policing, we will make APD more effective and will help restore the community’s trust in the department.

I. SUMMARY OF FINDINGS While officers may be required to use force during the course of their duties, they must do so respecting constitutional guarantees against unreasonable searches and seizures. For too long, Albuquerque officers have faced little scrutiny from their superiors in carrying out this fundamental responsibility. Despite the efforts of many committed individuals, external oversight is broken and has allowed the department to remain unaccountable to the communities it serves. Based on our investigation, we find that the department engages in a pattern or practice of using excessive force during the course of arrests and other detentions in violation of the Fourth Amendment and Section 14141. We find this pattern or practice in the following areas:

(1) Albuquerque police officers too often use deadly force in an unconstitutional manner

in their use of firearms. To illustrate, of the 20 officer-involved shootings resulting in fatalities from 2009 to 2012, we concluded that a majority of these shootings were

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unconstitutional. Albuquerque police officers often use deadly force in circumstances where there is no imminent threat of death or serious bodily harm to officers or others. Instead, officers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force.

1 For purposes of this letter, “less lethal force” means a force application not intended or expected to cause death or serious injury and which is commonly understood to have less potential for causing death or serious injury than conventional, more lethal police tactics. Nonetheless, use of less lethal force can result in death or serious injury. 2 The Department uses the Taser brand electronic control weapons. Throughout this report, we will refer to these weapons as Tasers.

3 (2) Albuquerque police officers also often use less lethal force

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in an unconstitutional manner. We reviewed a random sample of the department’s use of force reports completed by officers and supervisors between 2009 and early 2013. Our sample consisted of over 200 force reports. We find that officers frequently misused electronic control weapons (commonly referred to by the brand name “Tasers”),2 resorting to use of the weapon on people who are passively resisting, observably non threatening but unable to comply with orders due to their mental state, or posed only a minimal threat to the officers. Officers also often used Tasers in dangerous situations. For example, officers fired Tasers numerous times at a man who had poured gasoline on himself. The Taser discharges set the man on fire, requiring another officer to extinguish the flames. This endangered all present. Additionally, Albuquerque police officers often use unreasonable physical force without regard for the subject’s safety or the level of threat encountered. Officers frequently use takedown procedures in ways that unnecessarily increase the harm to the person. Finally, officers escalate situations in which force could have been avoided had they instead used de-escalation measures.

(3) A significant amount of the force we reviewed was used against persons with mental illness and in crisis. APD’s policies, training, and supervision are insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respects their rights and is safe for all involved.

(4) The use of excessive force by APD officers is not isolated or sporadic. The pattern or practice of excessive force stems from systemic deficiencies in oversight, training, and policy. Chief among these deficiencies is the department’s failure to implement an objective and rigorous internal accountability system. Force incidents are not properly investigated, documented, or addressed with corrective measures.



We found only a few instances in the incidents we reviewed where supervisors scrutinized officers’ use of force and sought additional investigation. In nearly all cases, supervisors endorsed officers’ version of events, even when officers’ accounts were incomplete, were inconsistent with other evidence, or were based on canned or repetitive language. The department has also failed to implement its force policies consistently, including requirements that officers properly document their use of force, whether by lapel cameras, audio tapes, or in reports. The department does not use other internal review systems, such as internal affairs and the early intervention system, effectively. These internal accountability and policy failures combine with the department’s inadequate training to contribute to uses of excessive force. Additionally, serious limitations in the City’s external oversight processes have allowed many of these deficiencies to continue unabated.

As a result of the department’s inadequate accountability systems, the department often endorses questionable and sometimes unlawful conduct by officers. The prior criminal history and background of individuals who are the subject of police force also typically receive greater scrutiny than the actions of officers. These practices breed resentment in the community and promote an institutional disregard for constitutional policing. For example, in a 2011 civil trial involving the shooting death of Andrew Lopez in which a state court found that an officer used unreasonable force, the City’s expert, a training officer, testified that the officer’s actions were “exemplary and that he (the expert) would use this incident to train officers on the proper use of deadly force.”3 The court concluded that the deadly force training provided to APD officers “is designed to result in the unreasonable use of deadly force.”

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We found other examples of similar praise or approval by police supervisors in force investigations we reviewed.

We recognize that the department started to institute some preliminary reforms to address our concerns before the conclusion of our investigation. However, the recent remarks by the police chief in response to the James Boyd shooting on March 16, 2014, demonstrate that more work is needed to change the culture of APD.

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It is imperative that the department continue to build on these reforms and improve its training, recruitment, and internal review mechanisms. The failure to take meaningful remedial action places residents at risk of excessive force and promotes a culture of unjustifiable aggression that further alienates the department from the communities it serves. Making constitutional policing a core agency value and building systems of accountability to carry out that value will support the many APD officers who strive to and do uphold their oaths. This, in turn, will engender greater trust and confidence in APD from the community.

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Findings of Fact and Conclusions of Law, Higgins v. City of Albuquerque, No. CV-2009 0915 (N.M. 2d Judicial Dist. filed on Aug. 19, 2009), ¶67. 4

Id. at ¶66. 5 On March 21, 2014, APD Chief Gorden Eden told reporters at a news conference that the force used against James Boyd was justified after officers responded to reports that an individual was camping illegally in the Sandia foothills. The Boyd shooting is under criminal investigation and is not addressed in this letter. Dan McKay, Camper Turning from Officers When Shot, Albuquerque Journal, Mar. 22, 2014, available at http://www.abqjournal.com/372844/ news/video-camper-turning-away.html.

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II. BACKGROUND

A well-functioning police department has the trust of the residents it protects, functions as a part of the community rather than insulated from it, and cultivates legitimacy when the public views it as engaging with them fairly and respecting the rule of law.6 We started this investigation in November 2012 amid serious public concerns about APD’s ability and willingness to fulfill these precepts.

In particular, the department faced community apprehension about its respect for constitutional guarantees against unreasonable force and its ability to protect the safety of all residents. These concerns stemmed from a number of high-profile incidents suggesting unreasonable conduct by some officers, including: (1) a high rate of shootings,7 including more than 25 shootings in the two-year period before our investigation started; (2) high profile uses of less lethal force, including Taser deployments and physical force captured on video; (3) a large number of judgments and settlements8 against the City signifying that many uses of force were unjustified; and (4) concerns raised by local leaders and advocates culminating in a City Council measure seeking an outside investigation by DOJ.9 .

In September 2010, the Police Executive Research Forum (“PERF”) started a nine-month study of the department’s use-of-force policies and training, as well as the department’s

6 See generally Tom Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in their Communities?, 6 Ohio St. J. Crim. L. 231 (2008) (finding that cooperation with the police increases when the public views the police as respecting procedural justice and therefore as legitimate authorities); Tom Tyler, WHY PEOPLE OBEY THE L

AW

138 (2006) (finding, in a study of over 1,500 Chicago residents, that “[i]nferences about efforts to be fair were the most important criterion of procedural fairness; concerns about politeness and rights (jointly labeled ethicality) were the second-most important”); Jason Sunshine & Tom Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 Law & Soc’y Rev. 513, 519-21 (2003) (study concluding that police treatment of the public and adherence to procedural fairness, such as accurately applying the law, has a stronger effect on police legitimacy than effectiveness in addressing crime). 7

Dan Frosch, Justice Dept. to Investigate the Police in Albuquerque, N.Y. Times, Nov. 27, 2012, available at http://www.nytimes.com/2012/11/28/us/justice-dept-to-investigate-the-police in-albuquerque.html?_r=0; Michael Haederle, In Albuquerque, An Uproar Over Shootings by Police, Los Angeles Times, Apr. 14, 2012, available at http://articles.latimes.com/2012/apr/14/nation/la-na-albuquerque-police-20120415. 8 Jeff Proctor, Ellis Case Would Boost APD Payouts, Albuquerque Journal, Apr. 7, 2013, available at http://www.abqjournal.com/186038/news/ellis-case-would-boost-apd-payouts.html; Jeff Proctor, Police Misconduct Costly, Albuquerque Journal, Feb. 6, 2012, available at http://www.abqjournal.com/85625/news/police-misconduct-costly.html. 9 Council Bill No. R-11-247 (August 2011) (requesting a DOJ investigation into “whether there have been incidents or patterns of civil rights violations by the Albuquerque Police Department”). You vetoed the measure, citing the City’s request for a review of the department by the Police Executive Research Forum. Mayor Berry’s Veto Message on R-11-247 (Aug. 18, 2011), available at http://www.cabq.gov/mayor/news/read-mayor-berrys-veto-message-on-r-11 247/.

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management systems. PERF did not evaluate whether officers used force appropriately.10 Indeed, the report noted that “[r]einvestigating officer-involved shooting cases was outside the scope of this study as specified by the city.”11 Instead, PERF focused on “common factors” in the shootings and trends and patterns in the uses of less lethal force, such as frequency of weapons use, officer and subject demographics, and the types of force used.12 The PERF report noted that shootings increased, even though “both violent crime and assaults on officers have been on a downward trend.”13 The PERF report found that multiple officers were present at 81% of the shooting incidents they reviewed.

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Given the level of misconduct we uncovered, the presence of multiple officers is significant because officers have a duty to intervene to prevent other officers from using excessive force. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008), cert. denied, 555 U.S. 1137 (2009) (internal citations omitted). The report also noted that in only a small percentage of shooting incidents (11%) did the officer employ less- lethal options before resorting to deadly weapons.15 The PERF report also noted the significant use of Tasers and pointed out serious limitations in APD’s ability to track accurate force data.

16 Our investigation, which included incidents occurring after PERF’s review, revealed similar problems.

The Albuquerque Police Department is the largest law enforcement agency in New Mexico, with approximately 1,000 sworn officers and over 600 civilian employees.17 We recognize that it is a modern policing agency that has made efforts to implement innovative programs, such as the Crisis Intervention Team (“CIT”) and the Crisis Outreach and Support Team (“COAST”), which work to diffuse potentially harmful situations and assist people in crisis by providing them with access to mental health care. The department has also partnered with other agencies to maintain the Family Advocacy Center, a safe space that focuses on the needs of victims of domestic violence, sexual abuse, and other trauma. The department has received national accreditation by law enforcement executive associations

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and has invested in technologies, such as lapel cameras, to address community concerns about officer accountability.

While these measures are noteworthy, the public’s confidence in the department remains shaken over concerns that the department is unable to control its officers’ use of excessive force. The use of technology and other initiatives have had limited impact in increasing accountability or promoting safer encounters with individuals suffering from mental illness. For instance,

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PERF, Review of Use of Force in the Albuquerque Police Department, 41, 48 (June 23, 2011), available at http://alibi.com/media/docs/Police%20Executive%20Research%20 Forum's%20review%20of%20APD%20shootings.pdf. 11 Id. at 10. 12

Id. 13 Id. at 2. 14

Id. at 14. 15 Id. 16

Id. at 48. 17 The Albuquerque Police Department’s Strategic Plan Fiscal Year 2013 through Fiscal Year 2017, available at http://www.cabq.gov/police/internal-reports. 18 For example, the department is accredited by the Commission on Accreditation for Law Enforcement Agencies, Inc., which is the credentialing authority through organizations such as the International Association of Chiefs of Police and the National Sheriff’s Association, among others. We do not endorse such accreditation. We simply note that such accreditation exists.

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although the department is among a few of its size to mandate the use of lapel video cameras, the implementation has been highly inconsistent. The availability of trained CIT officers has not kept up with the needs in the community, and de-escalation techniques employed by these officers are too easily dismissed by heavily-armed tactical units in situations where individuals under police scrutiny are not posing an immediate threat of harm. The mental health professionals and staff on COAST teams operate in a larger mental health system with limited resources and options. It is critical that the City and the department take additional measures to identify, address, and prevent excessive force to protect the public and rebuild the community’s trust. Recent shootings have heightened and confirmed the need for further reform.

III. METHODOLOGY AND LEGAL STANDARDS

We conducted our evaluation of the department’s use of force in three major phases: fact-gathering, incident analysis based on applicable legal standards, and a comprehensive review of policies and practices to identify significant factors that cause or contribute to misconduct. Our review was informed by many sources, including: (1) individuals participating in community town hall meetings and separate witness interviews; (2) agency stakeholders, such as the department’s officers, supervisors, and command staff; (3) other stakeholders in the City, including the officers’ union representatives, police oversight commissioners and investigative staff, City officials, and community group leaders; (4) department documents, including use-of force and shooting files; and (5) information and insights provided by our expert police consultants.

During the first phase of our investigation, we sought relevant information on the department’s use of force and worked to gain a comprehensive understanding of the department, including its leadership, systems of accountability, operations, and community engagement. We conducted onsite tours in Albuquerque in December 2012, February and March 2013, and January 2014. Collectively during these tours, we met with command staff and officers of various ranks; representatives from the officers’ union; leadership and officers within the internal affairs department; the police academy; and each area command, among others. We spoke to current and former officers in Albuquerque by video conference and telephonically. We also met with stakeholders outside of the department, including the Independent Review Officer, members of the Police Oversight Commission, and community group leaders.19

In this fact-gathering phase, we also sought to learn more from those who had direct interactions with the department. We held four community town hall meetings in different regions of the City and conducted initial and follow-up interviews of hundreds of people. We also interviewed dozens of people through additional community outreach efforts. We verified these accounts by reviewing available documentary, photographic, and video support, as well as department records.

In the second phase of our investigation, we carefully analyzed the information we obtained and applied the relevant legal standards to determine whether the department’s use of force was justified under federal law. We reviewed an extensive volume of documents provided to us by the department, including a random sample of more than 200 force reports from 2009

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See a more in depth description of the Police Oversight Commission and the Independent Review Officer at B. 7 infra.

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through early 2013.20 We also reviewed the files of officer-involved shootings between 2009 and 2012 that resulted in fatalities. Our review of individual use-of-force complaints and reports informed our investigation into whether a pattern or practice of excessive force exists.

A pattern or practice may be found where incidents of violations are repeated and not isolated instances. Int’l Bd. of Teamsters v. United States, 431 U.S. 324, 336 n.l6 (1977) (noting that the phrase “pattern or practice” “was not intended as a term of art,” but should be interpreted according to its usual meaning “consistent with the understanding of the identical words” used in other federal civil rights statutes). Courts interpreting the terms in similar statutes have established that statistical evidence is not required. Catlett v. Mo. Highway & Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987) (interpreting “pattern or practice” in the Title VII context). A court does not need a specific number of incidents to find a pattern or practice, and it does not need to find a set number of incidents or acts. See United States v. W. Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir. 1971) (“The number of [violations] . . . is not determinative. . . . In any event, no mathematical formula is workable, nor was any intended. Each case must turn on its own facts.”).

We assessed officers’ conduct under the Fourth Amendment’s “right of people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. C

ONST

. amend. IV. Courts apply the Fourth Amendment objective reasonableness standard to all claims of excessive force, including deadly force. Graham v. Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1 (1985). Under this standard, “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” is balanced against the “countervailing government interests at stake.” Graham, 471 U.S. at 396 (internal quotation marks and citations omitted). Ultimately, in evaluating whether there are violations of the Fourth Amendment, the courts are tasked with determining whether the “officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397 (internal quotation marks and citations omitted); see also Casey v. City of Federal Heights, 509 F.3d 1278, 1281 (10th Cir. 2007).

Guiding this balancing of interests are several non-exclusive factors: if a crime was suspected, the severity of that offense; whether the person posed an immediate threat to the safety of the officer or others; and whether the person was actively resisting arrest or attempting to evade arrest. Graham, 490 U.S. at 396; Garner, 471 U.S. at 8-9. The Tenth Circuit has also considered other factors, including: whether the officer’s own conduct contributed to the need to use force; whether the officer issued a warning and the person had the opportunity to comply; whether the person was mentally ill; and whether, during the course of the interaction, new facts developed requiring a change in the amount of force required. Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013) (holding that repeated shooting at person is unreasonable where no threat remained); Cavanaugh v. Woods Cross City, 625 F.3d 661, 666 (10th Cir. 2010) (“It is not objectively reasonable to ignore specific facts as they develop (which contradict the need for this amount of force [Taser]), in favor of prior general information.”); Fogarty v. Gallegos, 523 F.3d 1147, 1159-60 (10th Cir. 2008) (considering whether officers’ conduct contributed to the need to

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We reviewed incidents reported by APD as uses of force. APD policy requires that officers report “police actions” that result in death, great bodily harm, or injury. “Police action” is defined as “any offensive or non passive defensive action by an officer, or some intentional action under his/her immediate control.” APD Use of Force Policy, 02-52.

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use tear gas); Casey, 509 F.3d at 1285 (considering whether a person was provided an opportunity to comply before an officer used a Taser); Allen v. Muskogee, Okla., 119 F.3d 837, 840 (10th Cir. 1997) (in shooting, considering person’s suicidal state and officer’s conduct prior to the person’s threat of force); Cardall v. Thompson, 845 F. Supp. 2d 1182, 1192 (D. Utah 2012) (noting that person’s “mental health also weighed against the use of a [T]aser”). Courts weigh these considerations to determine the reasonableness of the officer’s conduct in light of the totality of the circumstances.

In essence, the courts evaluate the full context surrounding the force action. While refraining from engaging in a 20/20 hindsight judgment of the force used, courts review the situation and threat faced by the officer. This also includes the type of force used by the officer—whether that force was physical, the use of weapons such as a Taser or chemical agents, or the use of a firearm. More severe forms of force require more justification. Cordova v. Aragon, 569 F.3d 1183, 1190 (10th Cir. 2009) (reasoning that the “general dangers posed” by a reckless driver fleeing the police “does not justify a shooting that is nearly certain to cause the suspect’s death”); Cavanaugh, 625 F.3d at 665 (holding that an officer’s use of the “quiet severe” intrusion of a [T]aser against an unarmed misdemeanant who posed no threat was unreasonable); Casey, 509 F.3d at 1286 (“[I]t is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command— could not exact compliance.”). Courts recognize that while some force may be required to apprehend a person, such force must be limited to what is “reasonably necessary to effect a lawful seizure.” Fisher v. City of Las Cruces, 584 F.3d 888, 895 (10th Cir. 2009) (holding that a rough handcuffing of a person was unreasonable where no threat remained). We applied these legal standards in our review of APD’s force incidents.

In the final phase of our review, we sought to evaluate the causes of, and the factors contributing to, the use of unreasonable force. We reviewed internal and external APD documents addressing a variety of operational issues, including policies and procedures, recruitment, training, internal accountability measures, assessment reports, task force evaluations, and investigations. We were aided in this determination by our expert police consultants who have significant experience in providing constitutional policing services, including reducing improper uses of force, ensuring officer safety and accountability, and promoting respectful police interactions with the community. These consultants joined us during our onsite tours of the department, participated in our town hall meetings, conducted in-person and telephonic interviews with civilians and officers, reviewed APD policies and procedures, and reviewed force and shooting reports. The experience and knowledge of these nationally- recognized law enforcement experts helped to inform our findings. In sum, we relied on a variety of sources to reach the conclusions reported here.

IV. FINDINGS

We have reasonable cause to believe that officers of the Albuquerque Police Department engage in a pattern or practice of use of excessive force, including unreasonable deadly force, in violation of the Fourth Amendment and Section 14141. A significant amount of the force we reviewed was used against persons with mental illness and in crisis. APD’s policies, training, and supervision are insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that is safe and respects their rights. The use of excessive force by APD officers is not isolated or sporadic. The pattern or practice of excessive force stems from

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systemic deficiencies in oversight, training, and policy. Chief among these deficiencies is the department’s failure to implement an objective and rigorous internal accountability system. Force incidents are not properly investigated, documented, or addressed with corrective measures. Other deficiencies relate to the department’s inadequate tactical deployments and incoherent implementation of community policing principles.

A. APD Engages in a Pattern or Practice of Unconstitutional Use of Deadly Force.

We find that the Albuquerque Police Department engages in a pattern or practice of unreasonable use of deadly force in officers’ use of firearms. We reviewed all fatal shootings by officers between 2009 and 201221 and found that officers were not justified under federal law in using deadly force in the majority of those incidents. This level of unjustified, deadly force by the police poses unacceptable risks to the Albuquerque community.

As noted above, the Fourth Amendment permits police officers to use deadly force under certain circumstances, and the courts have identified specific factors they consider in determining the reasonableness of a use of force based on the totality of the circumstances. Those factors guided our analysis of each fatal police shooting in the 2009 to 2012 time frame. For each officer-involved shooting, we reviewed all police reports from the incident; interviews with witnesses and the officers involved; memoranda from the internal affairs division; reports by the Independent Review Officer and the Police Oversight Commission; reports from the District Attorney’s Office; lapel camera footage and audio tape, if they were available; in some cases, accounts that witnesses and family members of those killed gave directly to us; and other relevant information.

Below is a discussion of the most prevalent factors that lead us to find police shootings to be unjustified under federal law, with examples drawn from some of those incidents. We have identified other force incidents that further illustrate the pattern or practice of use of excessive force.

1. Albuquerque police officers shot and killed civilians who did not pose an imminent

threat of serious bodily harm or death to the officers or others.

Like other uses of force, the reasonableness of deadly force is evaluated through an objective standard: whether a reasonable officer in the same circumstances—facing the same tensions and uncertainties, and forced to make split-second decisions—would have used deadly force. See Graham, 490 U.S. at 396-97. Police officers are permitted to use deadly force to prevent escape when they have “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Garner, 471 U.S. at 3; Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir. 2008). The Tenth Circuit has cautioned that this statement must not be read too broadly: “It does not mean that any risk of physical harm to others, no matter how slight, would justify any application of force, no matter how certain to cause death.” Cordova, 569 F.3d at 1190 (discussing Scott v. Harris, 550 U.S. 372 (2007)). In Cordova, the Tenth Circuit determined that the general risks created by a motorist’s fleeing from

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Because we wanted to examine both the reasonableness of uses of force and the department’s responses to them, we focused on cases closed by APD.

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