United States v. City of Albuquerque, CIV 14-1025 JB\SMV

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Docket NumberNo. CIV 14-1025 JB\SMV,CIV 14-1025 JB\SMV
Decision Date12 June 2020


No. CIV 14-1025 JB\SMV


June 12, 2020


THIS MATTER comes before the Court on: (i) the Intervenor's Notice of Objection to Use of Force Policy (§ 2-57-2, Standing Operating Procedure), filed May 28, 2019 (Doc. 447)("Objection"); and (ii) the Memorandum in Support of Albuquerque Police Officers Association's Party Status, filed December 6, 2019 (Doc. 498)("Second MTI"). The Court held a hearing on August 13, 2019. See Clerk's Minutes at 1, filed August 13, 2019 (Doc. 473). The primary issues are: (i) whether the Court would have permitted the Albuquerque Police Officers Association ("Officers Association") to intervene, had the Court been presiding when the Officers Association filed its Motion to Intervene, filed December 18, 2014 (Doc. 40), and its Memorandum in Support of Intervenor Albuquerque Police Officers' Association Motion to Intervene (FRCP Rule 24), filed December 19, 2014 (Doc. 41)("MTI"); (ii) whether the Court should permit the Officers Association to raise its Objection to the "Use of Force -- Review and Investigation by the Department" Standing Operating Procedure ("SOP") § 2-57, filed June 20, 2019 (Doc. 458-6)("SOP § 2-57"); and (iii) whether the Court should amend SOP § 2-57, because the would-have-known standard in the use-of-force policy violates the Constitution of the United States of America, federal law, or the Second Amended and Restated Court-Approved Settlement

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Agreement, filed July 30, 2019 (Doc. 465-1)("Second Amended Settlement Agreement"). The Court concludes that: (i) if the Court had been presiding when the Officers Association filed its MTI, the Court would have granted the Officers Association's request for intervenor status, but it would have limited that status to the Officers Association's interest in its Collective Bargaining Agreement, https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view (last visited June 10, 2020)("CBA"); (ii) although the Court will permit the Officers Association to make substantive Objections to the Settlement Agreement to protect its interests under the CBA, the Officers Association's Objection is not timely and thus the Court denies the Officer Association's Objection; and (iii) the Court will not amend SOP § 2-57's would-have-known standard, because it does not have authority to do so, and even if the Court did have the authority to amend the would-have-known standard, Albuquerque has the right to enact a policy more stringent than the constitutional floor that is consistent with the Settlement Agreement and caselaw.


In November, 2012, the Plaintiff United States of America opened an investigation into the use of force by Albuquerque Police Department's ("APD") law enforcement officers. Joint Motion Requesting Approval and Entry of the Settlement Agreement as an Order at 2, filed November 14, 2014 (Doc. 9)("Joint Motion for Settlement"). In April, 2014, the United States issued the results of its investigation, in which it "concluded that it had reasonable cause to believe that the Albuquerque Police Department engages in a pattern or practice of use of excessive force, in violation of the Fourth Amendment and Section 14141" of Title 42 of the United States Code. Joint Motion for Settlement at 3. Soon after the United States issued its results, the United States entered discussions with Albuquerque, with input from the public and subject-matter experts,

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which resulted in an announced agreement on October 31, 2014. See Joint Motion for Settlement at 2; Memorandum Opinion and Order at 2, filed June 2, 2015 (Doc.134)(Brack, J.)("Original Settlement Agreement MOO"). The Albuquerque City Council, in a unanimous vote, endorsed the agreement. See Joint Motion for Settlement at 2; Original Settlement Agreement MOO at 2 (Brack, J.). The Original Settlement Agreement "sets up a comprehensive framework for reform with proposed 'revisions, policies, procedures, and practices to address the allegations in the United States' Complaint," Original Settlement Agreement MOO at 2 (Brack, J.)(quoting Joint Motion for Settlement at 6), and has provisions pertaining "to the use of force, specialized units, crisis intervention, training, misconduct investigations, supervision, recruitment, officer health, and community engagement." Original Settlement Agreement MOO at 2 (citing Settlement Agreement, filed November 14, 2014 (Doc 9-1)("Original Settlement Agreement")). The Original Settlement Agreement includes a "management-rights" provision that states

The Association (APOA) agrees that the employees shall be bound by and obey such directives, r[u]les, and regulations insofar as the same do not conflict with this Agreement, the laws of the United States, the laws of the State of New Mexico and/or the laws of the City of Albuquerque. Under normal circumstances, the Association will be given written notice of proposed changes to Department directives, rules and regulations that directly affect the wages, hours, and working conditions of bargaining unit member[s] and may submit written input to the Chief within fourteen (14) days.

Original Settlement Agreement ¶ 147, at 51-52. The Original Settlement Agreement also provided a procedure for objections:

APD shall have 15 days to resolve any objections to new or revised policies, procedures, manuals, or directives implementing the specified provisions. If, after this 15-day period has run, the [United States Department of Justice] maintains its objection, then the Monitor shall have an additional 15 days to resolve the objection. If either party disagrees with the Monitor's resolution of the objection, either party may ask the Court to resolve the matter. The Monitor shall determine whether in some instances an additional amount of time is necessary to ensure full and proper review of policies. Factors to consider in making this determination

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include: 1) complexity of the policy; 2) extent of disagreement regarding the policy; 3) number of policies provided simultaneously; and 4) extraordinary circumstances delaying review by DOJ or the Monitor. In determining whether these factors warrant additional time for review, the Monitor shall fully consider the importance of prompt implementation of policies and shall allow additional time for policy review only where it is clear that additional time is necessary to ensure a full and proper review. Any extension to the above timelines by the Monitor shall also toll APD's deadline for policy completion.

Original Settlement Agreement ¶ 148, at 52.

The next month, the United States brought a lawsuit against Albuquerque under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, alleging a "pattern or practice of use of excessive force by APD officers that deprives persons of rights, privileges, or immunities, secured and protected by the Fourth Amendment." Complaint at 1, filed November 12, 2014 (Doc. 1). According to the Complaint, APD police officers shot and killed approximately twenty individuals from 2009 to 2012. See Complaint at 3. The Complaint alleges that the "majority of these shootings were unconstitutional." Complaint at 3. Moreover, the United States alleges in its Complaint, APD police officers used deadly force: (i) "against individuals known or suspected of having mental illness and experiencing mental health crisis"; (ii) "in circumstances where there is no imminent threat of deadly or serious bodily harm"; (iii) "where persons pose only a minimal threat" to officers and others; and (iv) "where [the] officers' own conduct escalates situations and contributes to the need to use force." Complaint at 3. The United States further alleges that APD engaged in a pattern or practice of using force that is less than lethal in an unconstitutional manner. See Complaint at 4.

Two days after the United States filed its Complaint, the United States and Albuquerque submitted a joint motion to the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico, to approve the Original Settlement

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Agreement. See Joint Motion for Settlement at 1. Although Albuquerque joined the Motion, it clarified that it denied any pattern or practice of unconstitutional use of force by APD or any of its agents. See Joint Motion for Settlement at 3. In their Joint Motion, the United States and Albuquerque asked the Court to approve the Original Settlement Agreement, to "retain jurisdiction over the Agreement for the purpose of enforcing its terms until the City has achieved full and effective compliance with the Agreement," and to allow "community members and other stakeholders to express their views as amici curiae to assist the Court in its consideration of the Agreement." Joint Motion for Settlement at 3. After provisionally approving the Original Settlement Agreement, Judge Brack set a fairness hearing so interested parties could provide their opinions on the Original Settlement Agreement. See Order Inviting the Submission of Briefs by Amicus Curiae, filed December 17, 2014 (Doc. 35). Seven groups spoke at the fairness hearing. See Clerk's Minutes at 1, filed January 21, 2015 (Doc. 90). After the fairness hearing, Judge Brack approved the Original Settlement Agreement, entering it as a court order. See Original Settlement Agreement MOO at 1.

The Original Settlement Agreement requires "compliance within two years [of November 14, 2014], and sustained and full effective compliance for four years" by November 14, 2018. Memorandum Opinion and Order, filed September 24, 2015 (Doc. 143)(Brack, J.)(citing Original Settlement Agreement ¶ 342, at 103). The United States and Albuquerque selected Dr. James Ginger as the independent monitor of the agreement, a former police officer who "function[s] as...

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