Second Amended and Restated Court-Approved Settlement Agreement PDF

Case 1:14-cv-01025-JB-SMV Document 465 Filed 07/30/19 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, ) )...

Case 1:14-cv-01025-JB-SMV Document 465 Filed 07/30/19 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) THE CITY OF ALBUQUERQUE, ) 14-cv-1025 JB/SMV ) Defendant, ) vs. ) ) THE ALBUQUERQUE POLICE ) OFFICERS’ ASSOCIATION, ) ) Intervenor. ) NOTICE OF SUBMISSION OF SECOND AMENDED AND RESTATED COURT-APPROVED SETTLMENT AGREEMENT Plaintiff United States of America and Defendant City of Albuquerque (the Parties), file this Notice with the with consent of Intervenor Albuquerque Police Officers’ Association (APOA) and the concurrence of the Independent Monitor, for the purpose of submitting for the Court’s convenience the Second Amended and Restated Court-Approved Settlement Agreement, which updates the First Amended and Restated Settlement Agreement filed on February 9, 2017, Doc. 247, by incorporating Court-approved changes, modifications, and amendments to the First Amended and Restated Settlement Agreement since its filing. This Court approved the original Settlement Agreement and entered it as an Order of the Court on June 2, 2016. Doc. 134. After the original Settlement Agreement was approved and entered as a Court Order, the Parties and APOA jointly stipulated, with the Independent Monitor’s concurrence, to modify the original Settlement Agreement under Paragraph 338 of the Agreement, see Doc. 9-1, ¶ 338,  Case 1:14-cv-01025-JB-SMV Document 465 Filed 07/30/19 Page 2 of 4 on five separate occasions, Docs. 140, 157, 166, 179, and 230, and the Court thereafter approved each stipulation. The First Amended and Restated Court-Approved Settlement Agreement incorporated each of these modifications to the original Settlement Agreement and was intended to facilitate access to the most current and complete version of the Court- Approved Settlement Agreement. After the First Amended and Restated Court-Approved Settlement Agreement was filed in February 2017, the Parties and APOA jointly stipulated to modify the First Amended and Restated Court-Approved Settlement Agreement twice more with the concurrence of the Independent Monitor, see Doc. 354 and errata at Doc. 356 (filed on March 5, 2018 and March 9, 2018); Doc. 404 (filed on September 19, 2018), and the approval of this Court. Docs. 365 and 405. The Second Amended and Restated Court-Approved Settlement Agreement incorporates changes from those Court-approved Joint Stipulations. These Joint Stipulations have resulted in modification of the following 112 paragraphs from the First Amended and Restated Court-Approved Settlement Agreement: Table of Contents, F.1 and F.2. Paragraphs: 12tt, 12uu, 12vv, 12ww, 12xx, 12yy, 12zz, 12aaa, 12bbb, 12ccc, 12ddd, 14h, 41, 42, 46, 47, 48, 48a, 48b, 48c, 49, 50, 52a, 52b, 52c, 52d, 52e, 52f, 52g, 52h, 52i, 52j, 52k, 52l, 52m, 52n, 52o, 52p, 52q, 52r, 53, 53d, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 68, 69, 69a, 69e, 69f, 69g, 69h, 69i, 69j, 69k, 69l, 69m, 70, 71, 71a, 71d, 72, 73, 74, 75, 76, 77, 78, 78a, 78b, 78c, 78d, 78e, 78f, 78g, 79c, 80, 86, 88, 88a, 157, 163, 173, 176, 177, 178, 179, 180, 181, 185, 187, 188, 191, 196, 198, 199, 210d, 286, 298e, 298fii, and 304. WHEREFORE, the Parties, with the consent of the APOA and concurrence of the Independent Monitor, respectfully submit the Second Amended and Restated Court-Approved Settlement Agreement. Page 2 of 4  Case 1:14-cv-01025-JB-SMV Document 465 Filed 07/30/19 Page 3 of 4 For Plaintiff UNITED STATES OF AMERICA: JOHN C. ANDERSON ERIC S. DREIBAND United States Attorney Assistant Attorney General District of New Mexico Civil Rights Division ELIZABETH M. MARTINEZ STEVEN H. ROSENBAUM Assistant U.S. Attorney Chief U.S. Attorney’s Office Special Litigation Section District of New Mexico PAUL KILLEBREW P.O. Box 607 Special Counsel Albuquerque, NM 87103 Telephone: (505) 346-7274 /s/ Stephen M. Ryals COREY M. SANDERS STEPHEN M. RYALS Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Telephone: (202) 305-3229 Facsimile: (202) 514-4883 Email: [email protected] Defendant CITY OF ALBUQUERQUE: ESTEBAN AGUILAR, CITY ATTORNEY Email Approval on July 30, 2019 LINDSAY VAN METER Managing Assistant City Attorney P.O. Box 2248 Albuquerque, NM 87103 (505) 768-4500 [email protected] Page 3 of 4  Case 1:14-cv-01025-JB-SMV Document 465 Filed 07/30/19 Page 4 of 4 Intervenor ALBUQUERQUE POLICEOFFICERS’ ASSOCIATION SANCHEZ, MOWRER & DESIDERIO, P.C. Email Approval on July 23, 2019 FREDERICK M. MOWRER, Esq. P.O. Box 1966 Albuquerque, NM 87103 (505) 247-4321 Fax: (505) 247-4441 [email protected] THE D’AMATO LAW FIRM, P.C. JOHN JAMES D’AMATO, JR. 1112 Second Street N.W. Albuquerque, NM 87102 (505) 246-0045 Fax: (505) 247-0600 [email protected] INDEPENDENT MONITOR Email Concurrence on July 30, 2019 JAMES D. GINGER, Ph.D. Public Management Resources, Inc. 6877 Francis Marion Road Pamplico, SC 29583 Telephone: (843) 493-6293 [email protected] CERTIFICATE OF SERVICE I hereby certify that on July 30, 2019, I filed the foregoing pleading electronically through the CM/ECF system which caused all parties or counsel to be served by electronic means as more fully reflected on the Notice of Electronic Filing. /s/ Elizabeth M. Martinez ELIZABETH M. MARTINEZ| Assistant U.S. Attorney Page 4 of 4  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 1 of 108 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) THE CITY OF ALBUQUERQUE, ) 14-cv-1025 JB/SMV ) Defendant, ) vs. ) ) THE ALBUQUERQUE POLICE ) OFFICERS’ ASSOCIATION, ) ) Intervenor. ) SECOND AMENDED AND RESTATED COURT-APPROVED SETTLEMENT AGREEMENT 1 1 The Second Amended and Restated Court-Approved Settlement Agreement incorporates changes, modifications, and amendments to the First Amended and Restated Court-Approved Settlement Agreement (Doc. 247-1). The Second Amended and Restated Court-Approved Settlement Agreement contains changes from the following Joint Stipulations filed by the Parties and Intervenor with the concurrence of the Independent Monitor, Doc. 354 and errata at Doc. 356 filed March 5, 2018 and March 9, 2018; Doc. 404 filed September 19, 2018, and approved by this Court. Docs. 365 and 405.  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 2 of 108 TABLE OF CONTENTS I. INTRODUCTION...............................................................................................................1 II. BACKGROUND.................................................................................................................2 III. DEFINITIONS AND ABBREVIATIONS..........................................................................5 IV. USE OF FORCE: INTERNAL CONTROLS AND ACCOUNTABILITY.....................10 A. Use of Force Principles......................................................................................... 10 B. Use of Firearms..................................................................................................... 12 C. Electronic Control Weapons................................................................................. 13 D. Crowd Control and Incident Management............................................................ 17 E. Use of Force Reporting......................................................................................... 17 F. Force Reviews and Investigations........................................................................ 18 1. Supervisory Force Reviews...................................................................... 21 2. Force Investigations by the Internal Affairs Division............................... 24 G. Force Review Board............................................................................................. 31 H. Multi-Agency Task Force..................................................................................... 33 I. Use of Force Training........................................................................................... 34 V. SPECIALIZED UNITS.....................................................................................................35 A. Specialized Tactical Units..................................................................................... 36 B. Specialized Investigative Units............................................................................. 39 VI. CRISIS INTERVENTION.................................................................................................40 A. Mental Health Response Advisory Committee..................................................... 40 B. Behavioral Health Training................................................................................... 42 C. Crisis Intervention Certified Responders and Crisis Intervention Unit................ 43 D. Crisis Prevention................................................................................................... 46 VII. POLICIES AND TRAINING GENERALLY...................................................................47 A. Policy Development, Review, and Implementation............................................. 48 ii  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 3 of 108 B. Training on Revised Policies, Procedures, and Practices..................................... 50 C. Field Training Officer Program............................................................................ 51 VIII. MISCONDUCT COMPLAINT INTAKE, INVESTIGATION, AND ADJUDICATION....................................................................................................53 A. Reporting Misconduct........................................................................................... 53 B. Public Information on Civilian Complaints.......................................................... 53 C. Complaint Intake, Classification, and Tracking................................................... 55 D. Investigation of Complaints.................................................................................. 58 E. Preventing Retaliation........................................................................................... 62 F. Staffing and Training Requirements..................................................................... 62 G. Discipline Process and Transparency................................................................... 63 IX. STAFFING, MANAGEMENT, AND SUPERVISION....................................................64 A. Staffing.................................................................................................................. 64 B. Duties of Supervisors............................................................................................ 65 C. Supervisor Training.............................................................................................. 65 D. Early Intervention System..................................................................................... 66 E. On-Body Recording Systems for Documenting Police Activities........................ 69 X. RECRUITMENT, SELECTION, AND PROMOTIONS..................................................72 A. Recruitment Plan................................................................................................... 72 B. Hiring Practices..................................................................................................... 73 C. Promotions............................................................................................................ 74 D. Performance Evaluation........................................................................................ 74 XI. OFFICER ASSISTANCE AND SUPPORT......................................................................75 XII. COMMUNITY ENGAGEMENT AND OVERSIGHT....................................................76 A. Community and Problem-Oriented Policing........................................................ 77 B. Community Meetings and Public Information..................................................... 78 iii  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 4 of 108 C. Community Policing Councils.............................................................................. 79 D. Civilian Police Oversight Agency........................................................................ 80 XIII. IMPLEMENTATION, COMPLIANCE ASSESSMENT, AND ENFORCEMENT........85 A. Independent Monitor............................................................................................. 85 B. Compliance Reviews and Audits.......................................................................... 86 C. Outcome Assessments.......................................................................................... 86 D. Monitoring Plan and Methodology....................................................................... 88 E. Review of Use of Force and Misconduct Investigations...................................... 90 F. Monitor Recommendations and Technical Assistance......................................... 90 G. Comprehensive Re-Assessment............................................................................ 90 H. Monitor Reports.................................................................................................... 91 I. Communication Between Monitor, Parties, and Public........................................ 92 J. Public Statements, Testimony, Records, and Conflicts of Interest....................... 92 K. APD Implementation Unit.................................................................................... 94 L. Implementation Assessment and Report............................................................... 94 M. Access and Confidentiality................................................................................... 95 N. Selection and Compensation of the Monitor........................................................ 97 O. Court Jurisdiction, Modification of the Agreement, and Enforcement................ 99 P. Termination of the Agreement............................................................................ 101 iv  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 5 of 108 I. INTRODUCTION The United States of America and the City of Albuquerque (collectively “the Parties”) share a mutual interest in officer safety and accountability; constitutional, effective policing; and high-quality police services. They join together in entering into this agreement (“Agreement”) to ensure that the Albuquerque Police Department (“APD”) delivers police services that comply with the Constitution and laws of the United States and to further their mutual interests. The provisions of this Agreement are designed to ensure police integrity, protect officer safety, and prevent the use of excessive force, including unreasonable use of deadly force, by APD. By increasing transparency and accountability on use of force, APD will promote more effective law enforcement and will strengthen public confidence in APD. This Agreement is also designed to provide APD officers with the skills, training, tools, and support they need to implement the goals and objectives of this Agreement. The Parties recognize that APD personnel are APD’s greatest resource and that the vast majority of officers are committed to upholding the Constitution while carrying out their duties with honor and distinction. The Parties further recognize that maintaining public safety in a diverse and vibrant community requires that APD engage collaboratively with a broad spectrum of stakeholders on an ongoing basis. This Agreement is the product of such collaboration. This Agreement reflects the extensive participation of, and the Parties’ consultation with, many community leaders, police officers, advocates, residents, and other concerned individuals who offered meaningful recommendations and insights on reform. The Parties are committed to ongoing engagement with community stakeholders to foster continued participation and long-term sustainability of the reforms and goals embodied in this Agreement. The Agreement itself provides numerous mechanisms that promote ongoing community participation, including developing and 1  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 6 of 108 implementing a Civilian Police Oversight Agency, Mental Health Response Advisory Committee, Community Policing Councils, community policing partnerships, periodic community meetings, and public reports on the City’s progress toward compliance. For these reasons, and noting the general principle that settlements are to be encouraged, particularly settlements between government entities, the Parties agree to implement this Agreement under the following terms and conditions. II. BACKGROUND 1. In November 2012, the United States Department of Justice launched an investigation into APD’s policies and practices to determine whether APD engages in a pattern or practice of use of excessive force in violation of the Fourth Amendment and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). 2. As part of its investigation, the Department of Justice consulted with police practices experts and conducted a comprehensive assessment of officers’ use of force and APD policies and operations. The investigation included tours of APD facilities and Area Commands; interviews with Albuquerque officials, APD command staff, supervisors, and police officers; a review of numerous documents; and meetings with the Albuquerque Police Officers Association, residents, community groups, and other stakeholders. 3. The City and APD cooperated fully during the investigation and provided unimpeded access to documents, facilities and personnel. The Albuquerque community, APD officers, and the Albuquerque Police Officers Association also played a critical role in facilitating a thorough investigation. 4. On April 10, 2014, the Department of Justice issued a public letter to the City outlining its findings and recommending remedial measures. The Department of Justice found 2  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 7 of 108 reasonable cause to believe that APD engages in a pattern or practice of use of excessive force. The Department of Justice determined that although most force used by APD officers was reasonable, a significant amount of deadly and less lethal force was excessive and constituted an ongoing risk to the public. The Department of Justice also determined that systemic deficiencies contributed to the pattern or practice of excessive force, and these deficiencies relate to numerous operational and structural areas of APD, including hiring, training, policies, supervision, discipline, management, and oversight. 5. While the City does not concede the accuracy of these allegations, the City joined with the United States in a collaborative effort to promote the goals of this Agreement. Following the release of the Department of Justice’s investigative findings, the Parties engaged in extensive community outreach to solicit recommendations and ideas on reform. This Agreement reflects the broad input that the Parties received. 6. This Agreement is effectuated under the authority granted to the Department of Justice under Section 14141 to seek declaratory or equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution or federal law. 7. This Agreement is not intended to limit the lawful authority of APD officers to use objectively reasonable force or otherwise to fulfill their law enforcement obligations under the Constitution and laws of the United States and the State of New Mexico. 8. This Agreement shall not be construed as an admission or evidence of liability under any federal, state, or municipal law including, but not limited to, 42 U.S.C. § 1983. Nor is the City’s entry into this Agreement an admission by the City, APD, or any officer or employee that they have engaged in any unconstitutional, illegal, or otherwise improper activities or 3  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 8 of 108 conduct. The Parties acknowledge the many APD officers who have continued to work diligently and with integrity to maintain high-level, quality service; to ensure officer safety and accountability; and to promote constitutional, effective policing. 9. This Agreement shall constitute the entire integrated agreement of the Parties. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding, except for the Department of Justice’s April 10, 2014 investigative findings letter. 10. This Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, and successors. If the City establishes or reorganizes a government agency or entity whose function includes overseeing, regulating, investigating, or otherwise reviewing the operations of APD or any aspect thereof, the City shall ensure these functions and entities are consistent with the terms of this Agreement and shall incorporate the terms of this Agreement into the oversight, regulatory, investigation, or review functions of the government agency or entity as necessary to ensure consistency. 11. The Parties recognize that APD began taking steps to ensure greater accountability and supervision in response to a June 2011 report issued by the Police Executive Research Forum and both before and after the Department of Justice’s release of its April 2014 findings letter. The Department of Justice further recognizes that certain APD policies and practices are consistent with generally accepted policing practices and should continue as set forth below to ensure that performance is maintained or improved in order to meet the overall goals and objectives of this Agreement. Among the measures that APD has taken are extensive use of on-body recording systems and the provision of behavioral health training to a large 4  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 9 of 108 majority of its officers. In addition, the City has chosen to eliminate the Repeat Offender Project within three months of the Effective Date. III. DEFINITIONS AND ABBREVIATIONS 12. The following terms and definitions shall apply to this Agreement: a) “APD” or “the Department” shall refer to the Albuquerque Police Department and its agents, officers, supervisors, and employees (both sworn and unsworn). b) “Chief” means the Chief of Police of the Albuquerque Police Department or his or her properly designated Acting Chief. c) “City” shall refer to the City of Albuquerque, including its agents, officers, and employees. d) “Department of Justice” or “DOJ” refers jointly to the United States Department of Justice’s Civil Rights Division and the United States Attorney’s Office for the District of New Mexico. e) “USAO” means the United States Attorney’s Office for the District of New Mexico. f) “Court” shall refer to the United States District Judge for the District of New Mexico presiding over this case. g) “Active resistance” means resistance that poses a threat of harm to the officer or others, such as when a subject attempts to attack or does attack an officer; exhibits combative behavior (e.g., lunging toward the officer, striking the officer with hands, fists, kicks, or any instrument that may be perceived as a weapon such as a knife or stick); or attempts to leave the scene, flee, hide from detection, or pull away from the officer’s grasp. Verbal statements alone do not constitute active resistance. Bracing or tensing alone ordinarily do not constitute active resistance, but may if they pose a threat of harm to the officer or others. h) “Apprehension” means the arrest, capture, or taking into custody of a person. i) “Area commands” shall refer to police service areas of APD located throughout Albuquerque that are led through the chain of command by an Area Commander. j) “Arrest” is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting the person. An arrest is a restraint of greater scope or duration than an investigatory stop or detention. An arrest is lawful when supported by probable cause. 5 Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 10 of 108 k) “Best practices” means guidelines or standards that represent the most efficient and current means for achieving constitutional and effective policing accepted by nationally recognized police professionals or organizations in the relevant subject area, as determined by the Parties. l) “Civilian employee” shall refer to any non-sworn personnel employed by APD, on either a temporary or permanent basis, in either a paid or unpaid capacity. m) “Community-oriented policing” is a policing philosophy that promotes and relies on collaborative partnerships between law enforcement agencies and the individuals and organizations they serve to develop solutions to problems, increase trust in police, and improve the effectiveness of policing efforts. n) “Complainant” means any person, including an APD officer or employee, who makes a complaint against APD or an APD officer or employee. o) “Complaint” means any complaint regarding APD services, policy, or procedure, any claim for damages, or any criminal matter that alleges possible misconduct by an APD officer or employee. For purposes of this Agreement, the term “complaint” does not include any allegation of employment discrimination. p) “Critical firearm discharge” means a discharge of a firearm by an APD officer, including accidental discharges and discharges where no person is struck. Range and training firings, destruction of animals, and off-duty hunting discharges where no person is struck are not critical firearms discharges. q) “Demographic category” means race, ethnicity, age, sex, gender expression or gender identity, sexual orientation, and limited English proficiency, if known. r) “Discipline” or “disciplinary action” means a personnel action for violation of an established law, regulation, rule, administrative rule, or APD policy, including, but not limited to, a verbal reprimand, written reprimand, suspension, or dismissal. s) “ECW” means Electronic Control Weapon, a weapon, including those manufactured by TASER International, designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and override the subject’s voluntary motor responses. t) “ECW application” means the contact and delivery of an electrical impulse to a subject with an Electronic Control Weapon. u) “Effective Date” means the day this Agreement has been signed by the Parties and submitted to the Court. v) “Firearm” means a pistol, revolver, shotgun, carbine, or machine gun, as well as any instrument capable of discharging a bullet or shot. 6 Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 11 of 108 w) “Implement” or “implementation” means the development or putting into place of a policy or procedure, including the appropriate training of all relevant personnel, and the consistent and verified performance of that policy or procedure in actual practice. x) “Include” and “including” mean “including, but not limited to.” y) “Interview” includes questioning for the purpose of eliciting facts or information. z) “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. Use of less lethal force can nonetheless result in death or serious injury. aa) “Lethal force” means any use of force likely to cause death or serious physical injury, including the use of a firearm, neck hold, or strike to the head, neck, or throat with a hard object. bb) “Mental health crisis” means an incident in which someone with an actual or perceived mental illness is experiencing intense feelings of personal distress (e.g., anxiety, depression, anger, fear, panic, hopelessness), obvious changes in functioning (e.g., neglect of personal hygiene, unusual behavior) or catastrophic life events (e.g., disruptions in personal relationships, support systems, or living arrangements; loss of autonomy or parental rights; victimization; or natural disasters), which may, but not necessarily, result in an upward trajectory of intensity culminating in thoughts or acts that are dangerous to his- or herself and/or others. cc) “Mental illness” is a medical condition that disrupts an individual’s thinking, perception, mood, or ability to relate to others such that daily functioning and coping with the ordinary demands of life are diminished. Mental illness includes serious mental illnesses such as major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder (“OCD”), panic disorder, post-traumatic stress disorder (“PTSD”), and borderline personality disorder. Mental illness includes individuals with dual diagnosis of mental illness and another condition, such as drug and/or alcohol addiction. dd) “Misconduct” means a violation of departmental policies or procedures; violation of federal, state, or local criminal laws; constitutional violations, whether criminal or civil; violation of personnel rules; violation of the merit systems ordinance; violation of administrative rules; violation of regulations; and violation of the labor management relations laws. ee) “Monitor” means a person or team of people who shall be jointly selected to monitor and report on the implementation of this Agreement. ff) “Multi-Agency Task Force” refers to the investigative body comprised of, at a minimum, the New Mexico Department of Public Safety, the New Mexico State 7 Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 12 of 108 Police, the Bernalillo County Sheriff’s Office, and the Albuquerque Police Department that is charged with conducting criminal investigations of critical incidents involving officer actions, such as officer-involved shootings. The Multi-Agency Task Force is governed by an inter-governmental agreement among participating jurisdictions and is responsible for consulting, as appropriate, with prosecuting authorities in New Mexico, including the Bernalillo County District Attorney’s Office, the State Attorney General’s Office, and the U.S. Attorney’s Office. gg) “Neck hold” refers to one of the following types of holds: (1) carotid restraint hold; (2) a lateral vascular neck constraint; or (3) a hold with a knee or other object to a subject’s neck. A neck hold shall be considered lethal force. hh) “Non-disciplinary corrective action” refers to action other than discipline taken to enable or encourage an officer to improve his or her performance. ii) “Passive resistance” means non-compliance with officer commands that is non- violent and does not pose an immediate threat to the officer or the public. Bracing, tensing, linking arms, or verbally signaling an intention to avoid or prevent being taken into custody constitute passive resistance. jj) “Personnel” means all APD employees. kk) “Police officer” or “officer” means any law enforcement agent employed by or volunteering for APD, including supervisors and reserve officers. ll) “Policies and procedures” means written regulations or directives, regardless of the name of the regulation or directive, describing the duties, functions, and obligations of APD personnel, and providing specific direction on how to fulfill those duties, functions, or obligations. These include general orders, special orders, policies, procedures, and standard operating procedures. mm) “Qualified mental health professional” means an individual with a minimum of masters-level education and training in psychiatry, psychology, counseling, social work, or psychiatric nursing, who is currently licensed in the State of New Mexico to deliver the mental health services he or she has undertaken to provide. nn) “Reasonable force” means that force which is objectively reasonable under the circumstances and the minimum amount of force necessary to effect an arrest or protect the officer or other person. oo) “Seizure” occurs when an officer’s words or actions convey to a reasonable person that he or she is not free to leave. pp) “Serious physical injury” means physical injury that creates a substantial risk of death; or that causes death or serious and protracted disfigurement; or impairment of the function of any bodily organ or limb. 8 Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 13 of 108 qq) “Serious use of force” means: (1) all uses of lethal force by an APD officer; (2) all critical firearm discharges by an APD officer; (3) all uses of force by an APD officer resulting in serious physical injury or requiring hospitalization; (4) all head, neck, and throat strikes with an object or neck holds; (5) all uses of force by an APD officer resulting in a loss of consciousness; (6) all canine bites; (7) more than two applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, and regardless of whether the applications are by the same or different officers, or an ECW application for longer than 15 seconds, whether continuous or consecutive; (8) any strike, blow, kick, ECW application, or similar use of force against a handcuffed subject; and (9) more than three strikes with a baton. The term “serious use of force” is defined differently in the Memorandum of Understanding for the Multi-Agency Task Force in which APD participates to investigate officer involved shootings, serious uses of force (as defined in the Memorandum of Understanding), and in- custody deaths. The definition of “serious use of force” in this Agreement is not intended to substitute or alter in any way the definition in the Memorandum of Understanding. rr) “Service firearm” means any firearm issued or authorized by the Department for use by sworn personnel. ss) “Shall” or “agrees to” means that the provision imposes a mandatory duty. tt) “Show of force” means pointing a firearm, beanbag shotgun, or 40 millimeter launcher at a subject , or using an ECW to “paint” a subject with the laser sight. uu) “Specialized unit” means a designated law enforcement component with specialized training, skills, and mission. Specialized units include Specialized Tactical Units, whose focus is on tactical solutions to critical incidents that involve a threat to public safety or high-risk situations, which would otherwise exceed the capabilities of traditional law enforcement first responders or investigative units. Specialized Tactical Units include SWAT, the Canine Unit, and the Bomb Squad. Specialized units also include Specialized Investigation Units, whose focus is on the use of investigative methods and techniques to solve crimes and develop cases for prosecution, such as the Intelligence Unit and the Gang Unit. vv) “SWAT” unit means the Special Weapons and Tactics unit. ww) “Supervisor” means sworn APD personnel at the rank of sergeant or above (or anyone acting in those capacities) and non-sworn APD personnel with oversight responsibility for other personnel. xx) “Telecommunicators” means dispatchers, 911 operators, and NCIC operators. yy) “Unit” means any designated organization of officers within APD, including area and specialized units. 9  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 14 of 108 zz) “Use of force” means physical effort to compel compliance by an unwilling subject above unresisted handcuffing, including a show of force. APD uses of force will be divided into three levels of force. Each level of force will require increasingly vigorous reporting, investigation, and review. aaa) “Use of force indicating apparent criminal conduct by an officer” means force that a reasonable and trained supervisor would conclude could result in criminal charges due to the apparent circumstances of the use of force, such as the level of force used as compared to the resistance encountered, or discrepancies in the use of force as described by the officer and the use of force as evidenced by any resulting injuries, witness statements, or other evidence. bbb) “Use of Force Report” means a written report documenting a use of force at Level 1 and above. The Use of Force Report includes a Use of Force Data Report and a Use of Force Narrative Report. ccc) “Welfare check” means a response by an APD officer to a call for service that is unrelated to an allegation of criminal conduct, but is instead to determine whether a person requires assistance for a medical or mental health crisis. ddd) “Operational Date” means the day this Agreement has been approved by the Court, which is June 2, 2015.” IV. USE OF FORCE: INTERNAL CONTROLS AND ACCOUNTABILITY 13. To maintain high-level, quality service; to ensure officer safety and accountability; and to promote constitutional, effective policing, APD shall revise and implement force policies, training, and accountability systems to ensure that force is used in accordance with the Constitution and laws of the United States, and that any use of unreasonable force is identified and responded to appropriately. APD shall also ensure that officers use non-force techniques to effectively police, use force only when objectively reasonable under the circumstances, and de-escalate the use of force at the earliest possible moment. To achieve these outcomes, APD shall implement the requirements set out below. A. Use of Force Principles 14. Use of force by APD officers, regardless of the type of force, tactics, or weapon used, shall abide by the following requirements: 10  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 15 of 108 a) officers shall use advisements, warnings, and verbal persuasion, when possible, before resorting to force; b) force shall be de-escalated immediately as resistance decreases; c) officers shall allow individuals time to submit to arrest before force is used whenever possible; d) APD shall explicitly prohibit neck holds, except where lethal force is authorized; e) APD shall explicitly prohibit using leg sweeps, arm-bar takedowns, or prone restraints, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons; to overcome active resistance; or as objectively reasonable where physical removal is necessary to overcome passive resistance and handcuff the subject; f) APD shall explicitly prohibit using force against persons in handcuffs, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons; to overcome active resistance; or as objectively reasonable where physical removal is necessary to overcome passive resistance; g) officers shall not use force to attempt to effect compliance with a command that is unlawful; h) pointing a firearm at a person shall be reported as a Level 1 Use of Force, and shall be done only as objectively reasonable to accomplish a lawful police objective; and i) immediately following a use of force, officers, and, upon arrival, a supervisor, shall inspect and observe subjects of force for injury or complaints of pain resulting from the use of force and immediately obtain any necessary medical care. This may require an officer to provide emergency first aid until professional medical care providers arrive on scene. 15. APD shall develop and implement an overarching agency-wide use of force policy that complies with applicable law and comports with best practices. The use of force policy shall include all force techniques, technologies, and weapons, both lethal and less lethal, that are available to APD officers, including authorized weapons, and weapons that are made available only to specialized units. The use of force policy shall clearly define and describe each force option and the factors officers should consider in determining which use of such force is appropriate. The use of force policy will incorporate the use of force principles and factors 11  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 16 of 108 articulated above and shall specify that the use of unreasonable force will subject officers to discipline, possible criminal prosecution, and/or civil liability. 16. In addition to the overarching use of force policy, APD agrees to develop and implement protocols for each weapon, tactic, or use of force authorized by APD, including procedures for each of the types of force addressed below. The specific use of force protocols shall be consistent with the use of force principles in Paragraph 14 and the overarching use of force policy. 17. Officers shall carry only those weapons that have been authorized by the Department. Modifications or additions to weapons shall only be performed by the Department’s Armorer as approved by the Chief. APD use of force policies shall include training and certification requirements that each officer must meet before being permitted to carry and use authorized weapons. B. Use of Firearms 18. Officers shall carry or use only agency-approved firearms and ammunition while on duty. 19. APD issued Special Order 14-32 requiring all officers to carry a Department- issued handgun while on duty. APD shall revise its force policies and protocols to reflect this requirement and shall implement a plan that provides: (a) a timetable for implementation; (b) sufficient training courses to allow officers to gain proficiency and meet qualification requirements within a specified period; and (c) protocols to track and control the inventory and issuance of handguns. 20. Officers shall be required to successfully qualify with each firearm that they are authorized to use or carry on-duty at least once each year. Officers who fail to qualify on their primary weapon system shall complete immediate remedial training. Those officers who still fail 12  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 17 of 108 to qualify after remedial training shall immediately relinquish APD-issued firearms on which they failed to qualify. Those officers who still fail to qualify within a reasonable time shall immediately be placed in an administrative assignment and will be subject to administrative and/or disciplinary action, up to and including termination of employment. 21. APD training shall continue to require and instruct proper techniques for unholstering, drawing, or exhibiting a firearm. 22. APD shall adopt a policy that prohibits officers from discharging a firearm from a moving vehicle or at a moving vehicle, including shooting to disable a moving vehicle, unless an occupant of the vehicle is using lethal force, other than the vehicle itself, against the officer or another person, and such action is necessary for self-defense, defense of other officers, or to protect another person. Officers shall not intentionally place themselves in the path of, or reach inside, a moving vehicle. 23. APD shall track all critical firearm discharges. APD shall include all critical firearm discharges and discharges at animals in its Early Intervention System and document such discharges in its use of force annual report. C. Electronic Control Weapons 24. ECWs shall not be used solely as a compliance technique or to overcome passive resistance. Officers may use ECWs only when such force is necessary to protect the officer, the subject, or another person from physical harm and after considering less intrusive means based on the threat or resistance encountered. Officers are authorized to use ECWs to control an actively resistant person when attempts to subdue the person by other tactics have been, or will likely be, ineffective and there is a reasonable expectation that it will be unsafe for officers to approach the person within contact range. 13  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 18 of 108 25. Unless doing so would place any person at risk, officers shall issue a verbal warning to the subject that the ECW will be used prior to discharging an ECW on the subject. Where feasible, the officer will defer ECW application for a reasonable time to allow the subject to comply with the warning. 26. ECWs will not be used where such deployment poses a substantial risk of serious physical injury or death from situational hazards, except where lethal force would be permitted. Situational hazards include falling from an elevated position, drowning, losing control of a moving motor vehicle or bicycle, or the known presence of an explosive or flammable material or substance. 27. Continuous cycling of ECWs is permitted only under exceptional circumstances where it is necessary to handcuff a subject under power. Officers shall be trained to attempt hands-on control tactics during ECW applications, including handcuffing the subject during ECW application (i.e., handcuffing under power). After one standard ECW cycle (5 seconds), the officer shall reevaluate the situation to determine if subsequent cycles are necessary. Officers shall consider that exposure to the ECW for longer than 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious injury. Officers shall also weigh the risks of subsequent or continuous cycles against other force options. Officers shall independently justify each cycle or continuous cycle of five seconds against the subject in Use of Force Reports 28. ECWs shall not be used solely in drive-stun mode as a pain compliance technique. ECWs may be used in drive-stun mode only to supplement the probe mode to complete the incapacitation circuit, or as a countermeasure to gain separation between officers and the subject, so that officers can consider another force option. 14  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 19 of 108 29. Officers shall determine the reasonableness of ECW use based upon all circumstances, including the subject’s age, size, physical condition, and the feasibility of lesser force options. ECWs should generally not be used against visibly pregnant women, elderly persons, young children, or visibly frail persons. In some cases, other control techniques may be more appropriate as determined by the subject’s threat level to themselves or others. Officers shall be trained on the increased risks that ECWs may present to the above-listed vulnerable populations. 30. Officers shall not intentionally target a subject’s head, neck, or genitalia, except where lethal force would be permitted, or where the officer has reasonable cause to believe there is an imminent risk of serious physical injury. 31. ECWs shall not be used on handcuffed subjects, unless doing so is necessary to prevent them from causing serious physical injury to themselves or others, and if lesser attempts of control have been ineffective. 32. Officers shall keep ECWs in a weak-side holster to reduce the chances of accidentally drawing and/or firing a firearm. 33. Officers shall receive annual ECW certifications, which should consist of physical competency; weapon retention; APD policy, including any policy changes; technology changes; and scenario- and judgment-based training. 34. Officers shall be trained in and follow protocols developed by APD, in conjunction with medical professionals, on their responsibilities following ECW use, including: a) removing ECW probes, including the requirements described in Paragraph 35; b) understanding risks of positional asphyxia, and training officers to use restraint techniques that do not impair the subject’s respiration following an ECW application; 15  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 20 of 108 c) monitoring all subjects of force who have received an ECW application while in police custody; and d) informing medical personnel of all subjects who: have been subjected to ECW applications, including prolonged applications (more than 15 seconds); are under the influence of drugs and/or exhibiting symptoms associated with excited delirium; or were kept in prone restraints after ECW use. 35. The City shall ensure that all subjects who have been exposed to ECW application shall receive a medical evaluation by emergency medical responders in the field or at a medical facility. Absent exigent circumstances, probes will only be removed from a subject’s skin by medical personnel. 36. Officers shall immediately notify their supervisor and the communications command center of all ECW discharges (except for training discharges). 37. APD agrees to develop and implement integrity safeguards on the use of ECWs to ensure compliance with APD policy. APD agrees to implement a protocol for quarterly downloads and audits of all ECWs. APD agrees to conduct random and directed audits of ECW deployment data. The audits should compare the downloaded data to the officer’s Use of Force Reports. Discrepancies within the audit should be addressed and appropriately investigated. 38. APD agrees to include the number of ECWs in operation and assigned to officers, and the number of ECW uses, as elements of the Early Intervention System. Analysis of this data shall include a determination of whether ECWs result in an increase in the use of force, and whether officer and subject injuries are affected by the rate of ECW use. Probe deployments, except those described in Paragraph 30, shall not be considered injuries. APD shall track all ECW laser painting and arcing and their effects on compliance rates as part of its data collection and analysis. ECW data analysis shall be included in APD’s use of force annual report. 16  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 21 of 108 D. Crowd Control and Incident Management 39. APD shall maintain crowd control and incident management policies that comply with applicable law and best practices. At a minimum, the incident management policies shall: a) define APD’s mission during mass demonstrations, civil disturbances, or other crowded situations; b) encourage the peaceful and lawful gathering of individuals and include strategies for crowd containment, crowd redirecting, and planned responses; c) require the use of crowd control techniques that safeguard the fundamental rights of individuals who gather or speak out legally; and d) continue to prohibit the use of canines for crowd control. 40. APD shall require an after-action review of law enforcement activities following each response to mass demonstrations, civil disturbances, or other crowded situations to ensure compliance with applicable laws, best practices, and APD policies and procedures. E. Use of Force Reporting 41. Uses of force will be divided into three levels for reporting, investigating, and reviewing purposes. APD shall develop and implement a use of force reporting policy and Use of Force Report Form that comply with applicable law and comport with best practices. The use of force reporting policy will require officers to immediately notify their immediate, on-duty supervisor within their chain of command following any use of force, prisoner injury, or allegation of any use of force. Personnel who have knowledge of a use of force by another officer will immediately report the incident to an on-duty supervisor. This reporting requirement also applies to off-duty officers engaged in enforcement action. 42. The use of force reporting policy shall require all officers to provide a written or recorded use of force narrative of the facts leading to the use of force to the supervisor conducting the review or the APD officer conducting the investigation. The written or recorded 17  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 22 of 108 narrative will include: (a) a detailed account of the incident from the officer’s perspective; (b) the reason for the initial police presence; (c) a specific description of the acts that led to the use of force, including the subject’s behavior; (d) the level of resistance encountered; and (e) a description of each type of force used and justification for each use of force. Officers shall not merely use boilerplate or conclusory language but must include specific facts and circumstances that led to the use of force. 43. Failure to report a use of force or prisoner injury by an APD officer shall subject officers to disciplinary action. 44. APD policy shall require officers to request medical services immediately when an individual is injured or complains of injury following a use of force. The policy shall also require officers who transport a civilian to a medical facility for treatment to take the safest and most direct route to the medical facility. The policy shall further require that officers notify the communications command center of the starting and ending mileage on the transporting vehicle. 45. APD shall require officers to activate on-body recording systems and record all use of force encounters. Consistent with Paragraph 228 below, officers who do not record use of force encounters shall be subject to discipline, up to and including termination. F. Force Reviews and Investigations 46. The three levels of use of force will have different kinds of departmental review. All uses of force by APD shall be subject to supervisory review, and Level 2 and Level 3 uses of force are subject to force investigations as set forth below. All force reviews and investigations shall comply with applicable law and comport with best practices. All force reviews and investigations shall determine whether each involved officer’s conduct was legally justified and complied with APD policy. 18  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 23 of 108 47. The quality of supervisory force reviews shall be taken into account in the performance evaluations of the officers performing such reviews. 48. APD agrees to develop and implement force classification procedures that include at least three categories of types of force that will determine the force review or investigation required. The categories or types of force shall be based on the level of force used and the risk of injury or actual injury from the use of force. The goal is to promote greater efficiency and reduce burdens on first-line supervisors, while optimizing critical investigative resources on higher-risk uses of force. The levels of force are defined as follow: a. Level 1 is force that is likely to cause only transitory pain, disorientation, or discomfort during its application as a means of gaining compliance. This includes techniques which are not reasonably expected to cause injury, do not result in actual injury, and are not likely to result in a complaint of injury (i.e., pain compliance techniques and resisted handcuffing). Pointing a firearm, beanbag shotgun, or 40 millimeter launcher at a subject, or using an ECW to “paint” a subject with the laser sight, as a show of force are reportable as Level 1 force. Level 1 force does not include interaction meant to guide, assist, or control a subject who is offering minimal resistance. b. Level 2 is force that causes injury, could reasonably be expected to cause injury, or results in a complaint of injury. Level 2 force includes use of an ECW, including where an ECW is fired at a subject but misses; use of a beanbag shotgun or 40 millimeter launcher, including where it is fired at a subject but misses; OC Spray application; empty hand techniques (i.e., strikes, kicks, takedowns, distraction techniques, or leg sweeps); and strikes with impact 19  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 24 of 108 weapons, except strikes to the head, neck, or throat, which would be considered a Level 3 use of force. c. Level 3 is force that results in, or could reasonably result in, serious physical injury, hospitalization, or death. Level 3 force includes all lethal force; critical firearms discharges; all head, neck, and throat strikes with an object; neck holds; canine bites; three or more uses of an ECW on an individual during a single interaction regardless of mode or duration or an ECW application for longer than 15 seconds, whether continuous or consecutive; four or more strikes with a baton; any strike, blow, kick, ECW application, or similar use of force against a handcuffed subject; and uses of force resulting in a loss of consciousness. As set forth in Paragraphs 81-85 below, APD shall continue to participate in the Multi- Agency Task Force, pursuant to its Memorandum of Understanding, in order to conduct criminal investigations of at least the following types of force or incidents: (a) officer-involved shootings; (b) serious uses of force as defined by the Memorandum of Understanding; (c) in-custody deaths; and (d) other incidents resulting in death at the discretion of the Chief. 49. Under the force classification procedures, officers who use Level 1 force shall report the force to their supervisor as required by Paragraph 42; Level 1 uses of force that do not indicate apparent criminal conduct by an officer will be reviewed by the chain of command of the officer using force. Level 2 and 3 uses of force shall be investigated by the Internal Affairs Division, as described below. When a use of force or other incident is under criminal investigation by the Multi-Agency Task Force, APD’s Internal Affairs Division will conduct the administrative investigation. Pursuant to its Memorandum of Understanding, the Multi-Agency 20  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 25 of 108 Task Force shall periodically share information and coordinate with the Internal Affairs Division, as appropriate and in accordance with applicable laws, to ensure timely and thorough administrative investigations of uses of force. 1. Supervisory Force Reviews 50. The supervisor of an officer using force shall respond to the scene of all Level 1, 2, and 3 uses of force to ensure that the use of force is classified according to APD’s force classification procedures. For Level 2 and Level 3 uses of force, the supervisor shall ensure that the Force Investigation Section of the Internal Affairs Division is immediately notified and dispatched to the scene of the incident to initiate the force investigation. 51. A supervisor who was involved in a reportable use of force, including by participating in or ordering the force being reviewed, shall not review the incident or Use of Force Reports for approval. 52. For all supervisory reviews of Level 1 uses of force, the supervisor shall: a) respond to the scene and immediately identify the officer(s) involved in Level 1 use of force; b) review the involved officer’s lapel video, determining whether the incident involves a Level 1 use of force; c) review the lapel video of other officers on-scene where uncertainty remains about whether the incident rises to a Level 2 or Level 3 use of force; d) examine personnel and the subject for injuries and request medical attention where appropriate.; e) contact the Internal Affairs Division to conduct a Level 2 or Level 3 use of force investigation if lapel video does not affirm a Level 1 use of force; f) gather any evidence located at the scene of the Level 1 use of force; g) capture photographs of the officer(s) and subject involved in the Level 1 use of force; h) require the submission of a Use of Force Report from the involved officer by the end of shift; and 21  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 26 of 108 i) conduct any other fact-gathering activities while on-scene, as necessary, to reach reliable conclusions regarding the officer’s use of Level 1 force. 53. Each supervisor shall complete and document a supervisory force review of a Level 1 Use of Force within 72 hours of the use of force. Any extension of this 72-hour deadline must be authorized by a Commander. This review shall include: a) all written or recorded use of force narratives or statements provided by personnel or others; b) documentation of all evidence that was gathered, including names, phone numbers, and addresses of witnesses to the incident. In situations in which there are no known witnesses, the report shall specifically state this fact. In situations in which witnesses were present but circumstances prevented the author of the report from determining the identification, phone number, or address of the witnesses, the report shall state the reasons why. The report should also include all available identifying information for anyone who refuses to provide a statement; c) the names of all other APD employees witnessing the use of force; d) the supervisor’s narrative evaluating the use of force, based on the supervisor’s analysis of the evidence gathered, including a determination of whether the officer’s actions complied with APD policy and state and federal law; and an assessment of the incident for tactical and training implications, including whether the use of force could have been avoided through the use of de-escalation techniques and e) documentation that additional issues of concern not related to the use of force incident have been identified and addressed by separate memorandum. 54. Upon completion of the review, the reviewing supervisor shall forward the review through his or her chain of command to the Commander, who shall review the entry to ensure that it is complete and that the findings are supported using the preponderance of the evidence standard. The Commander shall order additional review when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improving the reliability or credibility of the findings. These reviews shall be completed electronically and tracked in an automated database within the Internal Affairs Division. 22  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 27 of 108 55. Where the findings of the supervisory review are not supported by a preponderance of the evidence, the supervisor’s Commander shall document the reasons for this determination and shall include this documentation as an addendum to the original review. The supervisor’s superior shall take appropriate action to address the inadequately supported determination and any deficiencies that led to it. Commanders shall be responsible for the accuracy and completeness of the Level 1 force reviews prepared by supervisors under their command. 56. Where a supervisor repeatedly conducts deficient supervisory force reviews, the supervisor shall receive the appropriate corrective and/or disciplinary action, including training, demotion, and/or removal from a supervisory position in accordance with performance evaluation procedures and consistent with any existing collective bargaining agreements, personnel rules, Labor Management Relations Ordinance, Merit System Ordinance, regulations, or administrative rules. Whenever a supervisor or Commander finds evidence of a use of force indicating apparent criminal conduct by an officer, the supervisor or Commander shall suspend the supervisory force review immediately and notify the Internal Affairs Division and the Chief. The Force Investigation Section of the Internal Affairs Division shall immediately initiate the administrative and criminal investigation. 57. When the Commander finds that the supervisory force review is complete and the findings are supported by the evidence, the file shall be forwarded to the Performance Review Unit of the Compliance Bureau. The Performance Review Unit shall review the supervisory force review to ensure that it is complete and that the findings are supported by the evidence. The Performance Review Unit shall ensure that the file is forwarded to the Internal Affairs Division for recordkeeping. Where the Performance Review Unit of the Compliance Bureau 23  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 28 of 108 determines that a supervisory force review, which has been completed by the supervisor and reviewed by the chain of command, is deficient, the Performance Review Unit shall forward the review to the supervisor for correction. Any performance deficiencies in the investigation or review will be noted in the affected Commander’s performance records. 58. At the discretion of the Chief, a supervisory force review may be assigned or re- assigned to another supervisor, whether within or outside of the Command in which the incident occurred, or may be returned to the original supervisor for further review or analysis. This assignment or re-assignment shall be explained in writing. 59. Where, after a supervisory force review, a use of force is found to violate policy, the Chief shall direct and ensure appropriate discipline and/or corrective action. Where the use of force indicates policy, training, tactical, or equipment concerns, the Chief shall also ensure that necessary training is delivered and that policy, tactical, or equipment concerns are resolved. 2. Force Investigations by the Internal Affairs Division 60. The Force Investigation Section of the Internal Affairs Division shall respond to the scene and conduct investigations of Level 2 and Level 3 uses of force, uses of force indicating apparent criminal conduct by an officer, uses of force by APD personnel of a rank higher than sergeant, or uses of force reassigned to the Internal Affairs Division by the Chief. In cases where an investigator in the Force Investigation Section initiates a Level 2 or Level 3 use of force investigation and identifies indications of apparent criminal conduct, the Section shall refer the use of force to an investigator in the Section, with no involvement in the initial administrative investigation into the Level 2 or 3 use of force, to conduct a criminal investigation. The criminal investigation shall remain separate from and independent of any administrative investigation. In instances where the Multi-Agency Task Force is conducting the 24  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 29 of 108 criminal investigation of a use of force, the Internal Affairs Division shall conduct the administrative investigation. 61. The Force Investigation Section of the Internal Affairs Division will be responsible for conducting both criminal and administrative investigations, except as stated in Paragraph 60. The Force Investigation Section of the Internal Affairs Division shall include sufficient personnel who are specially trained in both criminal and administrative investigations. 62. Within six months from the Operational Date, APD shall revise the Internal Affairs Division manual to include the following: a) definitions of all relevant terms; b) procedures on report writing; c) procedures for collecting and processing evidence; d) procedures to ensure appropriate separation of criminal and administrative investigations in the event of compelled subject officer statements; e) procedures for consulting with the District Attorney’s Office or the USAO, as appropriate, including ensuring that administrative investigations are not unnecessarily delayed while a criminal investigation is pending; f) scene management procedures; and g) management procedures. 63. Within 39 months from the Operational Date, APD shall ensure that there are sufficient trained personnel assigned to the Internal Affairs Division and Force Investigation Section to fulfill the requirements of this Agreement. APD shall ensure that all Level 2 and Level 3 uses of force are investigated fully and fairly by individuals with appropriate expertise, independence, and investigative skills so that uses of force that are contrary to law or policy are identified and appropriately resolved; that policy, training, equipment, or tactical deficiencies related to the use of force are identified and corrected; and that investigations of sufficient 25  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 30 of 108 quality are conducted so that officers can be held accountable, if necessary. At the discretion of the Chief, APD may hire and retain personnel, or reassign current APD employees, with sufficient expertise and skills to the Internal Affairs Division or Force Investigation Section 64. Before performing force investigations, Force Investigation Section personnel shall receive force investigation training that includes, at a minimum, the following areas: force investigation procedures; call-out and investigative protocols; proper roles of on-scene counterparts such as crime scene technicians, the Office of the Medical Investigator, District Attorney staff, the Multi-Agency Task Force, City Attorney staff, and Civilian Police Oversight Agency staff; and investigative equipment and techniques. Force Investigation Section personnel shall also receive force investigation annual in-service training. 65. Where appropriate to ensure the fact and appearance of impartiality and with the authorization of the Chief, APD may refer a use of force indicating apparent criminal conduct by an officer to the Multi-Agency Task Force for criminal investigation. 66. To ensure that criminal and administrative investigations remain separate, APD’s Violent Crimes Section may support the Force Investigation Section of the Internal Affairs Division or the Multi-Agency Task Force in the investigation of any Level 2 or Level 3 use of force, as defined by this Agreement, including critical firearm discharges, in-custody deaths, or police-initiated actions in which a death or serious physical injury occurs. 67. The Chief shall notify and consult with the District Attorney’s Office, the Federal Bureau of Investigation, and/or the USAO, as appropriate, regarding any use of force indicating apparent criminal conduct by an officer or evidence of criminal conduct by an officer discovered during a misconduct investigation. 26  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 31 of 108 68. If APD initiates a criminal investigation, or where APD requests a criminal prosecution, the Force Investigation Section will delay any compelled interview of the target officer(s) pending consultation with the District Attorney’s Office or the USAO, consistent with Paragraph 186. No other part of the administrative investigation shall be held in abeyance unless specifically authorized by the Chief in consultation with the agency conducting the criminal investigation. 69. In conducting its investigations of Level 2 or Level 3 uses of force, as defined in this Agreement, the Force Investigation Section shall: a) respond to the scene and consult with the on-scene supervisor to ensure that all personnel and subject(s) of use of force have been examined for injuries, that the use of force has been classified according to APD’s classification procedures, that subject(s) have been interviewed for complaints of pain after advising the subject(s) of his or her rights, and that all officers and/or subject(s) have received medical attention, if applicable; b) ensure that all evidence to establish material facts related to the use of force, including but not limited to audio and video recordings, photographs, and other documentation of injuries or the absence of injuries is collected; c) ensure that a canvass for, and interview of, witnesses is conducted. In addition, witnesses should be encouraged to provide and sign a written statement in their own words; d) ensure, consistent with applicable law, that all officers witnessing a Level 2 or Level 3 use of force by another officer provide a use of force narrative of the facts leading to the use of force; e) provide a written admonishment to involved and witness officer(s) to the use of force that they are not to speak about the force incident with anyone until they are interviewed by the investigator of the Force Investigation Section; f) conduct only one-on-one interviews with involved and witness officers; g) review all Use of Force Reports to ensure that these statements include the information required by this Agreement and APD policy; h) ensure that all Use of Force Reports identify all officers who were involved in the incident, witnessed the incident, or were on the scene when it occurred; 27  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 32 of 108 i) conduct investigations in a rigorous manner designed to determine the facts and, when conducting interviews, avoid asking leading questions and never ask officers or other witnesses any questions that may suggest legal justifications for the officers’ conduct; j) record all interviews; k) consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate, and make credibility determinations, if feasible; l) make all reasonable efforts to resolve material inconsistencies between the officer, subject, and witness statements, as well as inconsistencies between the level of force described by the officer and any injuries to personnel or subjects; and m) train all Internal Affairs Division force investigators on the factors to consider when evaluating credibility, incorporating credibility instructions provided to jurors. 70. The Force Investigation Section shall complete an initial Use of Force Data Report through the chain of command to the Chief as soon as possible, but in no circumstances later than 24 hours after learning of the use of force. 71. The Force Investigation Section shall complete Level 2 or Level 3 administrative investigations within three months after learning of the use of force. Any request for an extension to this time limit must be approved by the commanding officer of the Force Investigation Section through consultation with the Chief or by the Chief. At the conclusion of each use of force investigation, the Force Investigation Section shall prepare an investigation report. The report shall include: a) a narrative description of the incident, including a precise description of the evidence that either justifies or fails to justify the officer’s conduct based on the Force Investigation Section’s independent review of the facts and circumstances of the incident; b) documentation of all evidence that was gathered, including names, phone numbers, addresses of witnesses to the incident, and all underlying Use of Force Data Reports. In situations in which there are no known witnesses, the report shall specifically state this fact. In situations in which witnesses were present but circumstances prevented the author of the report from determining the 28  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 33 of 108 identification, phone number, or address of those witnesses, the report shall state the reasons why. The report should also include all available identifying information for anyone who refuses to provide a statement; c) the names of all other APD officers or employees witnessing the use of force; d) the Force Investigation Section’s narrative evaluating the use of force, based on the evidence gathered, including a determination of whether the officer’s actions complied with APD policy and state and federal law; and an assessment of the incident for tactical and training implications, including whether the use of force could have been avoided through the use of de-escalation techniques or lesser force options; e) if a weapon was used by an officer, documentation that the officer’s certification and training for the weapon were current at the time of the incident; and f) the complete disciplinary history of the target officers involved in the use of force. 72. Upon completion of the Force Investigation Section investigation report, the Force Investigation Section investigator shall forward the report through his or her chain of command to the commanding officer of the Internal Affairs Division. The Internal Affairs Division commanding officer shall review the report to ensure that it is complete and that, for administrative investigations, the findings are supported using the preponderance of the evidence standard. The Internal Affairs Division commanding officer shall order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings. 73. For administrative investigations, where the findings of the Force Investigation Section investigation are not supported by a preponderance of the evidence, the Internal Affairs Division commanding officer shall document the reasons for this determination and shall include this documentation as an addendum to the original investigation report. The commanding officer of the Internal Affairs Division shall take appropriate action to address any inadequately supported determination and any investigative deficiencies that led to it. The Internal Affairs 29  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 34 of 108 Division commanding officer shall be responsible for the accuracy and completeness of investigation reports prepared by the Internal Affairs Division. 74. Where a member of the Force Investigation Section repeatedly conducts deficient force investigations, the member shall receive the appropriate corrective and/or disciplinary action, including training or removal from the Force Investigation Section in accordance with performance evaluation procedures and consistent with any existing collective bargaining agreements, personnel rules, Labor Management Relations Ordinance, Merit System Ordinance, regulations, or administrative rules. 75. When the commanding officer of the Internal Affairs Division determines that the force investigation is complete and the findings are supported by the evidence, the investigation report file shall be forwarded to the Force Review Board with copy to the Chief. 76. At the discretion of the Chief, a force investigation may be assigned or re- assigned for investigation to the Multi-Agency Task Force or the Federal Bureau of Investigations, or may be returned to the Force Investigation Section for further investigation or analysis. This assignment or re-assignment shall be confirmed in writing. 77. Where, after an administrative force investigation, a use of force is found to violate policy, the Chief shall direct and ensure appropriate discipline and/or corrective action. Where a force investigation indicates apparent criminal conduct by an officer, the Chief shall ensure that the Internal Affairs Division or the Multi-Agency Task Force consults with the District Attorney’s Office or the USAO, as appropriate. The Chief need not delay the imposition of discipline until the outcome of the criminal investigation. In use of force investigations, where the incident indicates policy, training, tactical, or equipment concerns, the Chief shall 30  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 35 of 108 ensure that necessary training is delivered and that policy, tactical, or equipment concerns are resolved. G. Force Review Board 78. APD shall develop and implement a Force Review Board to review Level 2 and Level 3 uses of force. The Force Review Board shall be comprised of at least the following members: Deputy Chief of the Administrative Support Bureau, Deputy Chief of the Field Services Bureau, the Deputy Chief of the Investigative Bureau, a Field Services Commander, the Academy Division Commander, and the Legal Advisor. The Force Review Board shall conduct timely, comprehensive, and reliable reviews of Level 2 and Level 3 use of force investigations. The Force Review Board shall: a) review each use of force investigation completed by the Force Investigation Section within 30 days of receiving the investigation report to ensure that it is complete and, for administrative investigations, that the findings are supported by a preponderance of the evidence; b) hear the case presentation from the lead investigator and discuss the case as necessary with the investigator to gain a full understanding of the facts of the incident. The officer(s) who used the force subject to investigation, or who are otherwise the subject(s) of the Internal Affairs Division investigation, shall not be present; c) order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the force investigation findings. For administrative investigations, where the findings are not supported by a preponderance of the evidence, the Force Review Board shall document the reasons for this determination, which shall be included as an addendum to the original force investigation, including the specific evidence or analysis supporting their conclusions; d) determine whether the use of force violated APD policy. If the use of force violated APD policy, the Force Review Board shall refer it to the Chief for appropriate disciplinary and/or corrective action; e) determine whether the incident raises policy, training, equipment, or tactical concerns, and refer such incidents to the appropriate unit within APD to ensure the concerns are resolved; 31  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 36 of 108 f) document its findings and recommendations in a Force Review Board Report within 45 days of receiving the completed use of force investigation and within 15 days of the Force Review Board case presentation; and g) review and analyze use of force data, on at least a quarterly basis, to determine significant trends and to identify and correct deficiencies revealed by this analysis. 79. At least annually, APD shall publish a Use of Force Annual Report. At a minimum, the following information should be included in the Annual Use of Force Report: a) number of calls for service; b) number of officer-initiated actions; c) number of aggregate uses of force, and uses of force by Level; d) number of arrests; e) number of custodial arrests that involved use of force; f) number of SWAT deployments by type of call out; g) number of incidents involving officers shooting at or from moving vehicles; h) number of individuals armed with weapons; i) number of individuals unarmed; j) number of individuals injured during arrest, including APD and other law enforcement personnel; k) number of individuals requiring hospitalization, including APD and other law enforcement personnel; l) demographic category; and m) geographic data, including street, location, or Area Command. 80. APD shall be responsible for maintaining a reliable and accurate tracking system on all officers’ use of force; all force reviews carried out by supervisors; all force investigations carried out by the Force Investigation Section, Internal Affairs Division, or Multi-Agency Task Force; and all force reviews conducted by the Performance Review Unit of the Compliance 32  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 37 of 108 Bureau and the Force Review Board. APD shall integrate the use of force tracking system with the Early Intervention System database and shall utilize the tracking system to collect and analyze use of force data to prepare the Use of Force Annual Report and other reports, as necessary. H. Multi-Agency Task Force 81. APD shall continue to participate in the Multi-Agency Task Force for as long as the Memorandum of Understanding continues to exist. APD agrees to confer with participating jurisdictions to ensure that inter-governmental agreements that govern the Multi-Agency Task Force are current and effective. APD shall ensure that the inter-governmental agreements are consistent with this Agreement. 82. APD agrees to consult with participating jurisdictions to establish investigative protocols for the Multi-Agency Task Force. The protocols shall clearly define the purpose of the Multi-Agency Task Force; describe the roles and responsibilities of participating agencies, including the role of the lead investigative agency; and provide for ongoing coordination among participating agencies and consultation with pertinent prosecuting authorities. 83. APD agrees to consult and coordinate with the Multi-Agency Task Force on the release of evidence, including video recordings of uses of force, and dissemination of information to preserve the integrity of active criminal investigations involving APD personnel. 84. APD agrees to participate in all briefings of incidents involving APD personnel that are investigated by the Multi-Agency Task Force. 85. If the Memorandum of Understanding governing the Multi-Agency Task Force expires or otherwise terminates, or APD withdraws from the Multi-Agency Task Force, APD shall perform all investigations that would have otherwise been conducted pursuant to the Memorandum of Understanding. This Agreement does not prevent APD from entering into 33  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 38 of 108 other investigative Memoranda of Understanding with other law enforcement agencies to conduct criminal investigation of officer-involved shootings, serious uses of force, and in- custody deaths. I. Use of Force Training 86. Within 36 months of the Operational Date, APD will review all use of force policies and training to ensure they incorporate, and are consistent with, the Constitution and provisions of this Agreement. APD shall also provide all APD officers with 40 hours of use of force training within 12 months of the Operational Date, and 24 hours of use of force training on at least an annual basis thereafter, including, as necessary, training on developments in applicable law and APD policy. 87. APD’s use of force training for all officers shall be based upon constitutional principles and APD policy and shall include the following topics: a) search and seizure law, including the Fourth Amendment and related law; b) APD’s use of force policy, use of force reporting requirements, and the importance of properly documenting use of force incidents; c) use of force decision-making, based upon constitutional principles and APD policy, including interactions with individuals who are intoxicated, or who have a mental, intellectual, or physical disability; d) use of de-escalation strategies; e) scenario-based training and interactive exercises that demonstrate use of force decision-making and de-escalation strategies; f) deployment and use of all weapons or technologies, including firearms, ECWs, and on-body recording systems; g) crowd control; and h) initiating and disengaging foot pursuits. 34  Case 1:14-cv-01025-JB-SMV Document 465-1 Filed 07/30/19 Page 39 of 108 88. Supervisors of all ranks, including those assigned to the I