Albuquerque police (Creative Commons-licensed Photo by Jim Legans Jr.)

A Department of Justice civil investigation has found that a majority of shootings by Albuquerque police officers between 2009 to 2012 were unconstitutional. Officers “too often use deadly force” when using their firearms.

“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,” according to findings from the investigation. “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.”

“The use of excessive force by APD officers is not isolated or sporadic,” according to the Department. “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.”

The Department noted that “a significant amount of the force” that was reviewed “was used against persons with mental illness or in crisis.” It faulted the APD for not having policies to respect the rights or safety of mentally ill individuals.

The investigation was started in 2012 in response to the number of fatal shootings by Albuquerque police.

In March, two shootings that killed people led to protest and reinforced the need for investigating the department. Two police officers shot James Boyd. Boyd was homeless and suffering from schizophrenia. He had been camping illegally and was carrying a pair of knives, but video shows that he was shot when he turned away from police.

Boyd was shot with beanbag rounds and a flash-bang grenade before live rounds were fired and killed him.

The other shooting took place on March 26. Officers claimed Alfred Redwine exited an apartment with a weapon and shot at them first. However, cellphone video called Albuquerque Police Chief Gordon Eden’s version of events into serious question. This shooting happened just as hundreds were protesting the police shooting of Boyd.

Albuquerque police deployed tear gas on protesters after they had been ongoing for nine hours. The police donned riot gear and after firing tear gas made multiple arrests.

The investigation did not only find problems with police fatally shooting individuals. The use of “less lethal force” was found to often occur in an unconstitutional manner.

A review of a random sample of over 200 force reports found the “officers frequently misused” Tasers, “resorting to use of the weapon on people” who were “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.”

Tasers were used in dangerous situations. For example, in one instance, officers fired Tasers “numerous times at a man who had poured gasoline on himself.” The discharges “set the man on fire, requiring another officer to extinguish the flames.”

Rather than de-esclate situations, police often do the opposite and wind up employing physical force “without regard for the subject’s safety or the level of threat encountered.”

Twenty “officer-involved shootings” occurred between 2009 and 2012.

The report released described examples of police killings of civilians that were not justified. One example:

…[I]n October 2009, an officer shot and killed Dominic Smith, who was unarmed and fleeing the scene of a robbery on foot. Smith did not pose a threat of death or serious bodily injury to officers or others. Smith used a threatening note to rob a pharmacy for drugs before fleeing on foot. No one at the pharmacy saw Smith with any kind of a weapon and he did not commit acts of violence during the alleged robbery. An officer apprehended Smith just minutes later across the street from the pharmacy and stated that Smith appeared heavily intoxicated. The officer stated that he saw no weapons. The officer, with his gun drawn, ordered Smith to stop, but Smith continued walking away from the officer. The officer returned to his car, retrieved an assault rifle, and again confronted Smith, who continued to disregard the officer’s orders. With Smith just a few feet away, the officer claimed that Smith motioned near his waist, which the officer believed to indicate that Smith was reaching for a gun. The officer shot and killed Smith. Smith did not have a gun. A reasonable officer confronting Smith as he fled from the pharmacy thus would not have believed that Smith posed an immediate threat of death or serious bodily harm… [emphasis added]

Another example was the killing of Kenneth Ellis III, “who posed no threat to anyone” but himself.

“On January 2010,” as recounted by the Department, “an officer shot and killed Kenneth Ellis, III, a 25-year-old veteran who was suffering from post-traumatic stress disorder. Officers suspected Ellis of vehicle theft and pulled him over in a parking lot. Ellis exited the vehicle holding a gun pointed to his head. Ellis continued to hold the gun to his head as he made several phone calls and the officers attempted to negotiate with him. After several minutes, an officer shot Ellis one time in the neck and killed him.”

The Department concluded, “While it is true that Ellis was holding a gun and thus presented a clear threat of harm, there was never any indication from Ellis’ words or actions that he intended to use the gun on anyone but himself. During his encounter with police, he held the gun to his own head and did not point at police or threaten them with harm. It was thus unreasonable for the officer to have used deadly force on Ellis.”

Ellis’ family won a civil lawsuit in February 2013 and was awarded $10 million in damages. A judge also found the shooting violated the Fourth Amendment.

Another remarkable part of the Justice Department’s review is what it found in relation to the police department’s use of SWAT teams. They found a SWAT officer had “unilaterally” taken a “shooting position” near a house and shot a man named Alan Gomez before receiving any approval from a supervisor. Police officers on the scene were also in the middle of negotiating with Gomez.

The investigation found that all of these instances of excessive force are a result of a “culture of aggression” inside the department.

“This culture is manifested in the routine nature of excessive force and lack of corrective actions taken by the leadership to address force incidents,” according to the Department. It is “evident in the department’s training,permissive policy on weapons, under-utilization of its crisis intervention team, overuse of SWAT, and the harsh approaches to ordinary encounters with residents. The failure of the department’s leadership to address unnecessary uses of force reinforces the aggressive culture.”

For example, “Charles” was stopped by officers for “failing to stop at a sign while riding his bicycle.” Officers shocked him with Tasers “multiple times.” He was attacked essentially because he failed to “completely submit and obey commands.”

“Their use of force against a perplexed cyclist is just one of many episodes in which officers expressed
hostility toward people not engaged in the commission of any crimes,” the Department concluded.

What does the Department propose the department do to address this “culture of aggression,” which undoubtedly is not unique to this department?

The Justice Department calls for revisions to the “use of force policy,” such as requiring that officers report any uses of force and that “force” be clearly defined so that specific uses of physical force like chokeholds, prone restraints, kicks, takedowns or leg sweeps are reported.

It is recommended that officers who fail to report use of force or “prisoner injury by an officer” be subject to “disciplinary action.” Also, establish a policy for “force reviews and investigations, develop a policy for handling individuals with behavioral or mental health issues and revise policies and procedures for the use of SWAT teams in response to “high-risk incidents.”

The Department further recommended that a civilian oversight process be revised so that an “effective system of review” can be in place for addressing “serious uses of force and officer-involved shootings.”

What is not recommended is criminal prosecutions for officers, who abuse their authority and use excessive force. If officers faced this threat, they may not be so willing to brazenly use force on individuals.

But the focus on the “culture of aggression” in the police department is critical. No revision to any policy will help the people of Albuquerque if that is not addressed and changed from within the department and by city officials, who have a responsibility to ensure that officers are not terrorizing city residents, including young men and homeless people in low-income neighborhoods who have reportedly been targeted significantly.