United States of America v. City of Albuquerque

Filing 605

MEMORANDUM OPINION AND ORDER Related document(s): 447 Notice (Other), 498 Memorandum in Support. by District Judge James O. Browning. (llb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs.

No. CIV 14-1025 JB\SMV

CITY OF ALBUQUERQUE,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Intervenor’s Notice of Objection to
Use of Force Policy (§ 2-57-2, Standing Operating Procedure), filed May 28, 2019
(Doc. 447)(“Objection”); and (ii) the Memorandum in Support of Albuquerque Police Officers
Association’s Party Status, filed December 6, 2019 (Doc. 498)(“Second MTI”). The Court held a
hearing on August 13, 2019. See Clerk’s Minutes at 1, filed August 13, 2019 (Doc. 473). The
primary issues are: (i) whether the Court would have permitted the Albuquerque Police Officers
Association (“Officers Association”) to intervene, had the Court been presiding when the Officers
Association filed its Motion to Intervene, filed December 18, 2014 (Doc. 40), and its Memorandum
in Support of Intervenor Albuquerque Police Officers’ Association Motion to Intervene (FRCP
Rule 24), filed December 19, 2014 (Doc. 41)(“MTI”); (ii) whether the Court should permit the
Officers Association to raise its Objection to the “Use of Force -- Review and Investigation by the
Department” Standing Operating Procedure (“SOP”) § 2-57, filed June 20, 2019 (Doc. 4586)(“SOP § 2-57”); and (iii) whether the Court should amend SOP § 2-57, because the would-haveknown standard in the use-of-force policy violates the Constitution of the United States of
America, federal law, or the Second Amended and Restated Court-Approved Settlement

Agreement, filed July 30, 2019 (Doc. 465-1)(“Second Amended Settlement Agreement”). The
Court concludes that: (i) if the Court had been presiding when the Officers Association filed its
MTI, the Court would have granted the Officers Association’s request for intervenor status, but it
would have limited that status to the Officers Association’s interest in its Collective Bargaining
Agreement, https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view (last
visited June 10, 2020)(“CBA”); (ii) although the Court will permit the Officers Association to
make substantive Objections to the Settlement Agreement to protect its interests under the CBA,
the Officers Association’s Objection is not timely and thus the Court denies the Officer
Association’s Objection; and (iii) the Court will not amend SOP § 2-57’s would-have-known
standard, because it does not have authority to do so, and even if the Court did have the authority
to amend the would-have-known standard, Albuquerque has the right to enact a policy more
stringent than the constitutional floor that is consistent with the Settlement Agreement and
caselaw.
FACTUAL BACKGROUND
In November, 2012, the Plaintiff United States of America opened an investigation into the
use of force by Albuquerque Police Department’s (“APD”) law enforcement officers. Joint
Motion Requesting Approval and Entry of the Settlement Agreement as an Order at 2, filed
November 14, 2014 (Doc. 9)(“Joint Motion for Settlement”). In April, 2014, the United States
issued the results of its investigation, in which it “concluded that it had reasonable cause to believe
that the Albuquerque Police Department engages in a pattern or practice of use of excessive force,
in violation of the Fourth Amendment and Section 14141” of Title 42 of the United States Code.
Joint Motion for Settlement at 3. Soon after the United States issued its results, the United States
entered discussions with Albuquerque, with input from the public and subject-matter experts,

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which resulted in an announced agreement on October 31, 2014. See Joint Motion for Settlement
at 2; Memorandum Opinion and Order at 2, filed June 2, 2015 (Doc.134)(Brack, J.)(“Original
Settlement Agreement MOO”). The Albuquerque City Council, in a unanimous vote, endorsed
the agreement. See Joint Motion for Settlement at 2; Original Settlement Agreement MOO at 2
(Brack, J.). The Original Settlement Agreement “sets up a comprehensive framework for reform
with proposed ‘revisions, policies, procedures, and practices to address the allegations in the
United States’ Complaint,” Original Settlement Agreement MOO at 2 (Brack, J.)(quoting Joint
Motion for Settlement at 6), and has provisions pertaining “to the use of force, specialized units,
crisis intervention, training, misconduct investigations, supervision, recruitment, officer health,
and community engagement.” Original Settlement Agreement MOO at 2 (citing Settlement
Agreement, filed November 14, 2014 (Doc 9-1)(“Original Settlement Agreement”)). The Original
Settlement Agreement includes a “management-rights” provision that states
The Association (APOA) agrees that the employees shall be bound by and obey
such directives, r[u]les, and regulations insofar as the same do not conflict with this
Agreement, the laws of the United States, the laws of the State of New Mexico
and/or the laws of the City of Albuquerque. Under normal circumstances, the
Association will be given written notice of proposed changes to Department
directives, rules and regulations that directly affect the wages, hours, and working
conditions of bargaining unit member[s] and may submit written input to the Chief
within fourteen (14) days.
Original Settlement Agreement ¶ 147, at 51-52. The Original Settlement Agreement also provided
a procedure for objections:
APD shall have 15 days to resolve any objections to new or revised policies,
procedures, manuals, or directives implementing the specified provisions. If, after
this 15-day period has run, the [United States Department of Justice] maintains its
objection, then the Monitor shall have an additional 15 days to resolve the
objection. If either party disagrees with the Monitor’s resolution of the objection,
either party may ask the Court to resolve the matter. The Monitor shall determine
whether in some instances an additional amount of time is necessary to ensure full
and proper review of policies. Factors to consider in making this determination

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include: 1) complexity of the policy; 2) extent of disagreement regarding the policy;
3) number of policies provided simultaneously; and 4) extraordinary circumstances
delaying review by DOJ or the Monitor. In determining whether these factors
warrant additional time for review, the Monitor shall fully consider the importance
of prompt implementation of policies and shall allow additional time for policy
review only where it is clear that additional time is necessary to ensure a full and
proper review. Any extension to the above timelines by the Monitor shall also toll
APD’s deadline for policy completion.
Original Settlement Agreement ¶ 148, at 52.
The next month, the United States brought a lawsuit against Albuquerque under the Violent
Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, alleging a “pattern or
practice of use of excessive force by APD officers that deprives persons of rights, privileges, or
immunities, secured and protected by the Fourth Amendment.” Complaint at 1, filed November
12, 2014 (Doc. 1). According to the Complaint, APD police officers shot and killed approximately
twenty individuals from 2009 to 2012. See Complaint at 3. The Complaint alleges that the
“majority of these shootings were unconstitutional.” Complaint at 3. Moreover, the United States
alleges in its Complaint, APD police officers used deadly force: (i) “against individuals known or
suspected of having mental illness and experiencing mental health crisis”; (ii) “in circumstances
where there is no imminent threat of deadly or serious bodily harm”; (iii) “where persons pose
only a minimal threat” to officers and others; and (iv) “where [the] officers’ own conduct escalates
situations and contributes to the need to use force.” Complaint at 3. The United States further
alleges that APD engaged in a pattern or practice of using force that is less than lethal in an
unconstitutional manner. See Complaint at 4.
Two days after the United States filed its Complaint, the United States and Albuquerque
submitted a joint motion to the Honorable Robert C. Brack, United States District Judge for the
United States District Court for the District of New Mexico, to approve the Original Settlement

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Agreement. See Joint Motion for Settlement at 1. Although Albuquerque joined the Motion, it
clarified that it denied any pattern or practice of unconstitutional use of force by APD or any of its
agents. See Joint Motion for Settlement at 3. In their Joint Motion, the United States and
Albuquerque asked the Court to approve the Original Settlement Agreement, to “retain jurisdiction
over the Agreement for the purpose of enforcing its terms until the City has achieved full and
effective compliance with the Agreement,” and to allow “community members and other
stakeholders to express their views as amici curiae to assist the Court in its consideration of the
Agreement.” Joint Motion for Settlement at 3. After provisionally approving the Original
Settlement Agreement, Judge Brack set a fairness hearing so interested parties could provide their
opinions on the Original Settlement Agreement. See Order Inviting the Submission of Briefs by
Amicus Curiae, filed December 17, 2014 (Doc. 35). Seven groups spoke at the fairness hearing.
See Clerk’s Minutes at 1, filed January 21, 2015 (Doc. 90). After the fairness hearing, Judge Brack
approved the Original Settlement Agreement, entering it as a court order. See Original Settlement
Agreement MOO at 1.
The Original Settlement Agreement requires “compliance within two years [of November
14, 2014], and sustained and full effective compliance for four years” by November 14, 2018.
Memorandum Opinion and Order, filed September 24, 2015 (Doc. 143)(Brack, J.)(citing Original
Settlement Agreement ¶ 342, at 103). The United States and Albuquerque selected Dr. James
Ginger as the independent monitor of the agreement, a former police officer who “function[s] as
the eyes and ears of the Court.” Original Settlement Agreement MOO at 3. Dr. Ginger periodically
submits progress reports to the Court in compliance with the Original Settlement Agreement and
its later iterations. See, e.g., Report, filed August 18, 2017 (Doc. 295); Report, filed November 1,
2019 (Doc. 493). This continuous monitoring resulted in Judge Brack, at the parties’ request,

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suspending portions of the First Amended and Restated Court-Approved Settlement Agreement,
filed February 19, 2017 (Doc. 247-1)(“First Amended Settlement Agreement”) and Second
Amended Settlement Agreement, with which Albuquerque is in compliance. See, e.g., Order, filed
April 12, 2018 (Doc. 365)(suspending the First Amended Settlement Agreement’s ¶ 308, at 93).
The Officers Association has given its input to the United States and Albuquerque
throughout the process. The Albuquerque and the Officers Association also have a CBA. See
Memorandum Opinion and Order, filed November 30, 2016 (Doc. 238)(“Promotional Policy
MOO”). The relevant portion of the CBA states:
If the City anticipates the implementation of policies or directives related to
its agreement discussions with the DOJ that impacts Officers’ terms or conditions
of employment, the City will notify the APOA of its anticipated changes and
provide the APOA the opportunity to meet and confer with the City in a timely
manner on the anticipated changes.
CBA § 2.5, at 6. Albuquerque and the Officers Association renewed their CBA, which
became effective on July 7, 2018, and did not change this language.

See City of

Albuquerque and Albuquerque Police Officers Association 2018 Collective Bargaining
Agreement, § 2.5, at 6, https://www.cabq.gov/humanresources/documents/apoa-jul-92016.pdf/view (last visited June 10, 2020)(“2018 CBA”). The 2018 CBA does not include
a section on the standard of review for use of force. See generally 2018 CBA. The 2018
CBA states: “The employer reserves the right to develop and implement such directives
rules and regulations as may be deemed necessary to the employer for the conduct of affairs
of the Department.” 2018 CBA § 32.1, at 42.

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The Original Settlement Agreement required APD to revise its use-of-force SOP in 2017.
See Defendant City of Albuquerque’s Response to Intervenor’s Objections to Use of Force Policy
(§ 2-57-2, Standard Operating Procedure) at 3, filed July 15, 2019 (Doc. 462)(“Albuerque
Objections Response”). Dr. Ginger criticized portions of the revised use-of-force SOP, so APD
recrafted the policies through 2018 into January, 2019. See Objections Response at 3. The United
States and Albuquerque did not approve of the new policies, so on January 31, 2019, with Dr.
Ginger’s consent, the United States and Albuquerque adopted Albuquerque’s proposed SOP
language.

See Objections Response at 7-8.

That language is the basis for the Officers

Association’s objections.
PROCEDURAL BACKGROUND
The Officers Association filed its MTI in 2015. See MTI at 1. Judge Brack granted the
MTI as to the remedial phase of litigation. See Memorandum Opinion and Order at 3-4, 13, filed
February 19, 2015 (Doc. 102)(“MTI MOO”)(Brack, J.)(“MTI MOO”). Accordingly, the Officers
Association has brought Objections since the MTI MOO, including its most recent Objection. See,
e.g., APOA’s Notice of Objection to APD Promotional Policy and Request for Status Conference
at 1, filed August 25, 2016 (Doc. 198); Objection at 1.
1.

Motion to Intervene.

The Officers Association filed its MTI. See MTI at 1. It argues that under rule 24(a) of
the Federal Rules of Civil Procedure, it has a right to intervene in the action. See MTI at 1. The
Officers Association begins by providing background information relevant to its argument. See
MTI at 1. It clarifies that it represents APD’s “sworn, certified” employees. MTI at 1. As these
employees’ representatives, the Officers Association entered into the CBA, which “governs the
terms and conditions of employment for the bargaining unit,” with Albuquerque over forty years

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ago. See MTI at 1. The Officers Association notes that Albuquerque and the Officers Association
are required to bargain in good faith under New Mexico Public Employee Bargaining Act, N.M.
Stat. Ann. § 10-7E-1 to -26 (“PEBA”),1 and the City of Albuquerque Labor-Management Relations
Ordinance, Albuquerque, N.M. Rev. Ordinances, ch. 3, art. II, § 3-2-1 to -18 (“Labor Ordinance”).2

1

N.M. Stat. Ann. § 10-7E-17 states, in relevant part:

A. Except for retirement programs provided pursuant to the Public Employees
Retirement Act [10-11-1 NMSA 1978] or the Educational Retirement Act [22-111 NMSA 1978], public employers and exclusive representatives:
(1) shall bargain in good faith on wages, hours and all other terms
and conditions of employment and other issues agreed to by the
parties. However, neither the public employer nor the exclusive
representative shall be required to agree to a proposal or to make a
concession; and
(2) shall enter into written collective bargaining agreements
covering employment relations.
B. The obligation to bargain collectively imposed by the Public Employee
Bargaining Act [10-7E-1 NMSA 1978] shall not be construed as authorizing a
public employer and an exclusive representative to enter into an agreement that is
in conflict with the provisions of any other statute of this state. In the event of
conflict between the provisions of any other statute of this state and an agreement
entered into by the public employer and the exclusive representative in collective
bargaining, the statutes of this state shall prevail.
N.M. Stat. Ann. § 10-7E-17.
2

Section 3-2-4 of Albuquerque, N.M. Rev. Ordinances states:

(A) City employees have the right to form, join and otherwise participate
in the activities of an employee organization of their own choosing for the purpose
of bargaining collectively with the city government, and for other lawful
reasons. City employees also have the right to refuse to join and participate in the
activities of employee organizations. An employee organization which has been
certified by the Mayor as the exclusive bargain representative for an appropriate
bargaining unit of the city employees may bargain collectively with the city
government concerning hours, salary, wages, working conditions, and all terms and
conditions of employment.
(B) Nothing contained in this article shall be construed to limit, impair, or
affect the rights of any individual city employee to the expression or

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communication of a view, grievance, complaint, or opinion on any matter related
to the conditions or compensation of city employment or their betterment aside
from the method described herein, so long as the same is not designed to and does
not interfere with the full, faithful and proper performance of the duties of his
employment.
(C) No organization, its representative or other individual, shall be allowed
to solicit membership for an employee organization or labor union during such
employees' duty hours.
Albuquerque, N.M. Rev. Ordinances ch. 3, art. II, § 3-2-4. Regarding management rights, the city
ordinance states:
Subject to existing law, the Mayor and his administrative staff shall have the
following rights:
(A) To direct the work of its employees;
(B) To hire, promote, evaluate, transfer and assign employees;
(C) To demote, suspend, discharge or terminate employees for just
cause;
(D) To determine staffing requirements;
(E) To maintain the efficiency of the city government and ensure
the carrying out of normal management functions;
(F) To take actions as may be necessary to carry out the mission of
the city government in emergencies; and
(G) To manage and to exercise judgment on all matters not
specifically prohibited by this article or by a collective bargaining
agreement in effect between the city employer and an employee
organization.
Albuquerque, N.M. Rev. Ordinances ch. 3, art. II, § 3-2-5. The ordinance also sets out the
following legal obligations surrounding the city’s duty to bargain:
The city government and any employee organization recognized as the exclusive
representative for a unit, through their designated agents, shall bargain concerning
hours, salary, wages, working conditions and other terms and conditions of
employment not in violation of law or local ordinance and not in conflict with the
provisions of §§ 3-1-1 et seq., the Merit System; Personnel Regulations,
establishing classified and unclassified service, methods of service rating of
classified employees, methods of initial employment, promotion recognizing
efficiency and ability as applicable standards, discharge of employees, and
grievance and appeal procedures for classified employees; provided, however, that
the provisions of a collective bargaining agreement which has been ratified and

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MTI at 1-2. The Officers Association argues that the Original Settlement Agreement violates the
CBA and allows Albuquerque to unilaterally alter the CBA’s terms and conditions of employment
without bargaining in good faith with the Officers Association. See MTI at 3. Thus, the Officers
Association contends, because the Original Settlement Agreement affects its CBA rights, the Court
should permit the Officers Association to intervene in the case. See MTI at 3.
The Officers Association next fleshes out why the Court should permit it to intervene as a
matter of right under rule 24(a) of the Federal Rules of Civil Procedure. See MTI at 3. Before
analyzing each factor of the United States Court of Appeals for the Tenth Circuit’s test, the Officers
Association notes that United States Court of Appeals for the Ninth Circuit has directed district
courts to apply rule 24(a) tests “liberally and in favor of any potential intervenors.” MTI at 3
(citing United States v. City of L.A., Cal., 288 F.3d 391, 391 (9th Cir. 2002)(“United States v. City
of L.A.”). The Officers Association then turns to the first factor -- timeliness -- and asserts that,
while a motion to intervene “may be filed at either the merits phase or the remedial phase of
litigation,” “its motion is timely filed as this litigation is in its earliest stage.” MTI at 4. Without
elaboration, it asserts that its MTI would prejudice neither the United States nor Albuquerque. See
MTI at 4.3
The Officers Association turns to the second factor -- whether it had an “interest relating

approved by the Mayor shall, where in conflict with any other provision of §§ 3-11 et seq. govern. This duty includes an obligation to confer in good faith with
respect to terms and conditions of employment.
Albuquerque, N.M. Rev. Ordinances ch. 3, art. II, § 3-2-7.
3
The Officers Association relies only on Ninth Circuit cases for its intervention-as-right
argument. See MTI MOO at 4-9 (citing United States v. City of L.A., 288 F.3d at 391; San Jose
Mercury News, Inc. v. U.S. Dist. Court N. Dist. (San Jose), 187 F.3d 1096, 1101 (9th Cir. 1999);
Nikon Corp. v. ASM Lithograph B.V., 222 F.R.D. 647, 649-50 (N.D. Cal. 2004)(Patel, J.)).

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to the property or transaction that is the subject matter of this litigation.” MTI at 4. It notes that
this interest, known as a significant protectable interest, exists when the Officers Association
“asserts an interest that is protected under some law, and the legal relationship between itself and
the City.” MTI at 4. It cites the Ninth Circuit’s reasoning in United States v. City of L.A. to
illustrate why the Officers Association has a protectable interest in this case. See MTI at 5-7. The
Officers Association explains that, in that case, the Ninth Circuit4 concluded that the Los Angeles
Police Protective League (“Police League”) has “a legally protected interest in both the merits and
the remedies of litigation between the United States and an employer when that litigation impacts
state-law collective bargaining obligations.” MTI at 5. It notes the similarities between United
States v. City of L.A. and this case -- in both cases: (i) the United States alleges that the city
“engaged in a pattern and practice of depriving individuals of constitutional rights through
excessive force”; (ii) the United States and the City entered into a Settlement Agreement before
the United States filed the complaint; and (iii) the United States and the City jointly filed the
Settlement Agreement the same day the United States filed its complaint. MTI at 5 (citing United
States v. City of L.A., 228 F.3d at 396). According to the Officers Association, the Police League
moved to intervene, because the settlement agreement was inconsistent with the labor agreement
between the Los Angeles and the Police League. See MTI at 5. The Officers Association explains
that the district court denied the motion to intervene both as a matter of right and permissively.
See MTI at 5. The Officers Association says that the Ninth Circuit reversed the district court’s
decision, and the Officers Association states that the Police League
had a protectable interest in the merits and the remedies of the case because the
complaint: (1) sought injunctive relief against members of the League; (2) raised
4

Although the Officers Association wrote “Ninth Circuit District Court,” it is referring to
the Ninth Circuit’s holding, not the district court involved in that case. See MTI at 5.

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factual allegations that the member officers had committed unconstitutional acts in
the line of duty; and (3) sought remedies which could affect the terms of the labor
agreement.
MTI at 5. The Officers Association excerpts a paragraph from United States v. City of L.A. to
illustrate the protectable interest in the merits phase of that case:
“The Police League claims a protectable interest because the complaint seeks
injunctive relief against its member officers and raises factual allegations that its
member officers committed unconstitutional acts in the line of duty. These
allegations alone are sufficient to demonstrate that the Police League had a
protectable interest in the merits phase of the litigation.”
MTI at 5 (quoting United States v. City of L.A., 228 F.3d at 399). It then excerpts another
paragraph to illustrate the protectable interest in the remedial phase of that case:
“The Police League has state law rights to negotiate about the terms and conditions
of members’ employment as LAPD officers and to rely on the collective bargaining
agreement that is a result from those negotiations. These rights give it an interest
in the consent decree at issue. Thus, the Police League’s interest in the consent
decree is two-fold. To the extent it contains or might contain provisions that
contradict terms of the officers’ [collective bargaining agreement], the Police
League has an interest. Further, to the extent it is disputed whether or not the
consent decree conflicts with the [collective bargaining agreement], the Police
League has the right to preserve its views on the subject to the district court and
have them fully considered in conjunction with the district court’s decision to
approve the consent decree.”
MTI at 5 (quoting United States v. City of L.A., 228 F.3d at 400)(alteration in MTI). Analogizing
to United States v. City of L.A., the Officers Association asserts that it has a protectable interest
in the merits phase of litigation, because the United States makes allegations in its Complaint
against Albuquerque and its employees, and because Albuquerque alleges that law enforcement
officers, who are members of the Officers Association, have violated the Constitution in the line
of duty. See MTI at 6 (providing no cite for the latter proposition). The Officers Association then
asserts that it has a protectable in interest in the remedial phase of the litigation, because, in the
Original Settlement Agreement, Albuquerque commits to actions that harm the Officers

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Association. See MTI at 6 (stating that the CBA contains provisions that establish an “equitable
peaceful procedure for resolution of differences” and that the Settlement Agreement’s new
discipline guidelines around the use-of-force conflict with those CBA provisions). The Officers
Association notes that Albuquerque agreed to these actions that would violate CBA terms without
engaging in the required good-faith bargaining. See MTI at 6. If Albuquerque proceeds with the
Settlement Agreement, the Officers Association argues, Albuquerque will have violated the Labor
Ordinance, which could result in litigation. See MTI at 8.
Turning to the third factor -- whether denying intervention would hamper the Officer
Association’s ability to protect its interest -- the Officers Association again cites a Ninth Circuit
standard on which it bases its argument. See MTI at 8 (citing United States v. City of L.A., 228
F.3d at 397). The Officers Association argues that the Court should analyze this factor under the
Ninth Circuit’s standard to see, not whether the interest will be impaired, but whether the interest
“‘may’ be impaired ‘as a practical matter.’” MTI at 9 (quoting United States v. City of L.A., 228
F.3d at 397). The Officers Association argues that, should the Court deny the MTI, the Officers
Association’s interest likely will be impaired, because Albuquerque will be able to adopt policies
and procedures as part of the Settlement Agreement that are incompatible with the CBA. See MTI
at 9. Moreover, the Officers Association argues, denial of the intervention will harm the Officers
Association, because Albuquerque will impermissibly alter terms of employment without
bargaining in good faith with the Officers Association. See MTI at 9. It then notes that the Ninth
Circuit concluded that a settlement agreement overrides state law bargaining rights. See MTI at 9
(citing United States v. City of L.A., 228 F.3d at 401).
The Officers Association then turns to the fourth prong -- adequacy of representation -and again cites a Ninth Circuit case for its test. See MTI at 9-10 (stating the three factors the Ninth

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Circuit considers in an adequacy-of-representation analysis in the motion-to-intervene
context)(citing United States v. City of L.A., 288 F.3d at 398). The Officers Association
acknowledges that there is a presumption of adequate representation “when a representative is a
governmental body or officer charged by law with representing the interest of the absentee,” but it
argues that the presumption is inapplicable in this case, because it does not apply to Albuquerque
when it is an “antagonist[]” in the collective-bargaining process. MTI at 10 (citing United States
v. City of L.A., 228 F.3d at 402). The Officers Association provides several examples of
Albuquerque acting as an adversary to the Officers Association during the collective-bargaining
process, including Albuquerque unilaterally reducing wages, which resulted in an alleged breach
of the CBA and a case pending in state court. See MTI at 10. The Officers Association adds
several items of evidence that it deems are determinative regarding Albuquerque’s adversarial
position, including the necessity of the Officers Association’s Prohibited Practice Complaint about
the Settlement Agreement and the Original Settlement Agreement itself. See MTI at 10. The
Officers Association concludes its argument by reiterating that Albuquerque and the Officers
Association are situated adversely, and thus Albuquerque cannot adequately protect the Officers
Association’s interests. See MTI at 10.
The Officers Association turns to its alternative argument -- that the Court should permit
the Officers Association to intervene under rule 24 (b)(2)(B) of the Federal Rules of Civil
Procedure. See MTI at 11. The Officers Association again cites the Ninth Circuit for the standard:
“‘a court may grant permissive intervention where the application for intervention shows
(1) independent grounds for jurisdiction; (2) t[hat] the motion is timely; and (3) the applicant’s
claim or defense, and the main action, have a question of law or a question of fact in common.’”
MTI at 11 (quoting United States v. City of L.A., 288 F.3d at 403). The Officers Association

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quickly disposes of the first two factors, stating that the Court has federal-question jurisdiction,
because the Complaint alleges a violation of 42 § U.S.C 14141, and that the MTI is timely and
intervention will not delay the litigation process. See MTI at 11 (citing Freedom from Religious
Found., Inc. v. Geithner, 644 F.3d 836, 843-44 (9th Cir. 2011)). The Officers Association moves
to the next factor -- whether it raises common questions of law or facts -- and states that it shares
common questions of law or facts with the existing parties, because the Officers Association “seeks
to defend its member officers against allegations of police misconduct” and “seeks to address the
viability of the remedies in the Settlement Agreement.” MTI at 11. It notes that intervention
would not “alter the factual background of these claims.” MTI at 11. Finally, the Officers
Association turns to the fourth factor -- whether the Officers Association’s interest is adequately
represented by another party. See MTI at 11. The Officers Association notes that its interest is
“distinct” from Albuquerque’s interest, and thus Albuquerque does not adequately represent the
Officers Association’s interest. MTI at 11. It argues that “its participation will contribute to the
equitable resolution of this conflict.” MTI at 11 (citing Venegas v. Skaggs, 867 F.2d 527, 530-31
(9th Cir. 1989)). It concludes by stating that, should the Court grant intervention, the Officers
Association would submit an answer to the other parties. See MTI at 12.
2.

Albuquerque MTI Response.

Albuquerque responds. See Defendant City of Albuquerque’s Response in Opposition to
APOA’s Motion to Intervene, filed January 29, 2015 (Doc. 93)(“Albuquerque MTI Response”).
Albuquerque begins by noting that it does not dispute “most” of the Officers Association’s
purported facts. Albuquerque MTI Response at 1. Albuquerque argues, however, that the
Settlement Agreement “does not contain any specific rules, policies, or procedures” that
Albuquerque must implement, because Albuquerque will decide on these policies after the

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Settlement Agreement is finalized. Albuquerque MTI Response at 2. Thus, Albuquerque argues,
the Officers Association’s contention that the Original Settlement Agreement has terms that
“conflict[] with the CBA is mere conjecture.” Albuquerque MTI Response at 2.
Albuquerque notes that the Officers Association’s MTI does not include “key” CBA
provisions. Albuquerque MTI Response at 2. It excerpts the first omitted provision:
“The City and the APOA recognize the necessity to collaborate on issues
that arise as a result of the Department of Justice’s (“DOJ”) investigation and
proposals related to the findings of the DOJ regarding the Albuquerque Police
Department. If the City anticipates the implementation of policies or directives
related to its agreement discussions with the DOJ that impacts Officers’ terms or
conditions of employment, the City will notify the APOA of its anticipated changes
and provide APOA the opportunity to meet and confer with the City in a timely
manner on the anticipated changes. The commitment will not prevent the APOA
from submitting the changes for negotiations when the parties negotiate a successor
collective bargaining agreement.”
Albuquerque MTI Response at 2 (quoting CBA § 2.5). It excerpts a second “key” provision: “The
employer reserves the right to develop and implement such directives rule and regulations as may
be deemed necessary to the employer for the conduct of affair of the Department.” Albuquerque
MTI Response at 3 (quoting Collective Bargaining Agreement, Section 32.1, filed December 20,
2019 (Doc. 501-1)(“CBA § 32.1”)). Finally, Albuquerque excerpts a third “key” provision:
The Association (APOA) agrees that the employees shall be bound by and obey
such directives, r[u]les, and regulations insofar as the same do not conflict with this
Agreement, the laws of the United States, the laws of the State of New Mexico
and/or the laws of the City of Albuquerque. Under normal circumstances, the
Association will be given written notice of proposed changes to Department
directives, rules and regulations that directly affect the wages, hours, and working
conditions of bargaining unit member[s] and may submit written input to the Chief
within fourteen (14) days.”
Albuquerque MTI Response at 3 (quoting CBA § 32.2)(alterations added). Albuquerque argues
that these three provisions are dispositive of the Officers Association’s MTI. See Albuquerque
MTI Response at 3.

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Albuquerque begins its argument by stating that the Court should not permit the Officers
Association to intervene as a matter of right under rule 24(a). See Albuquerque MTI Response
at 3. Albuquerque begins with the protectable-interest factor, which it argues is dispositive of
intervention in both the merits and the remedial phases of litigation. See Albuquerque MTI
Response at 4. Regarding the merits phase of litigation, Albuquerque argues that the Officers
Association relies “entirely” on a Ninth Circuit case, which is “not binding authority and the
proposition for which the [Officers Association] cites it is questionable.” Albuquerque MTI
Response at 4 (citing United States v. City of L.A., 288 F.3d at 399). The proposition in question
is that a police union has a right to intervene on behalf of its officer members when there are
allegations of officer misconduct -- a proposition that Albuquerque argues could lead to police
unions having “unchecked ability to influence city officials’ prerogative to control litigation
strategy.” Albuquerque MTI Response at 4-5 (citing Floyd v. City of N.Y., 302 F.R.D. 69, 117
(S.D.N.Y. 2014)(Torres, J.)). Albuquerque points to Floyd v. City of N.Y. as “a more reasoned
approach,” because the Honorable Analisa Torres, United States District Judge for the United
States District Court for the Southern District of New York concluded that, “although the unions
need not have an independent cause of action against New York City, they must have a specific
legal interest as distinguished from a general interest.” Albuquerque MTI Response at 5 (citing
Floyd v. City of N.Y., 302 F.R.D. at 91). Albuquerque notes that, in Floyd v. City of N.Y., like in
this case, the Complaint was against New York and its police department, and not against
individual officers. See Albuquerque MTI Response at 5 (citing Floyd v. City of N.Y., 302 F.R.D.
at 94-96). In contrast, Albuquerque argues, the action in United States v. City of L.A., was against
individual officers as well as the city and the police department. See Albuquerque MTI Response
at 5-6 (citing 288 F.3d at 399). Albuquerque argues, thus, that United States v. City of L.A., has

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a “more nuanced” conclusion than Albuquerque suggests, because the Ninth Circuit concluded
that “a police union ha[s] a right to intervene in the merits on behalf of its members where members
had been accused of misconduct and they could still face liability on that misconduct,” which is
inapplicable to this case. Albuquerque MTI Response at 6 (citing Floyd v. City of N.Y., 302
F.R.D. at 123). Accordingly, Albuquerque concludes, the Officers Association has not presented
any authority to show that a police union has a protectable interest in the merits phase of litigation
“in which its members were not parties, were not facing liability, and where the relief sought was
not against union members.” Albuquerque MTI Response at 6.
Albuquerque then turns to whether the Officers Association has a protectable interest in
the remedial phase of litigation. See Albuquerque MTI Response at 7. It notes that the remedy in
this case -- the Original Settlement Agreement -- is contractual in nature and “even when injunctive
relief joins the parties’ agreement, the source of the authority requiring the parties to act remains
their acquiescence rather than the rules of law.” Albuquerque MTI Response at 7 (citing Local
No. 93 Int’l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501, 519-22 (1986)(“Local No.
93 v. Cleveland”)). Albuquerque adds that, if the Original Settlement Agreement imposes duties
on the Officers Association or disposes of the Officers Association’s claims, then the Officers
Association would need to consent to the Original Settlement Agreement. See Albuquerque MTI
Response at 7. The Original Settlement Agreement does not, however, impose duties on the
Officers Association or dispose of its claims, and thus, Albuquerque contends, the Original
Settlement Agreement does not require the Officers Association’s consent. See Albuquerque MTI
Response at 7 (citing Local No. 93 v. Cleveland, 478 U.S. at 529-30; Johnson v. Lodge No. 93 of
the Fraternal Order of the Police, 393 F.3d 1096, 1107(10th Cir. 2004)(“Johnson v. Lodge No.
93”)).

- 18 -

Albuquerque analogizes to Johnson v. Lodge No. 93, although it acknowledges the issue
in that case differs from the issue in this case. See Albuquerque MTI Response at 7. Albuquerque
says that the union in Johnson v. Lodge No. 93 makes the same arguments as the Officers
Association -- that the settlement agreement undermines the union’s position as the exclusive
bargaining agent for its members, conflicts with the CBA, and impairs employment terms and
conditions without union consent. See Albuquerque MTI Response at 7 (citing Johnson v. Lodge
No. 93, 393 F.3d at 1101). Albuquerque notes that in Johnson v. Lodge No. 93, the CBA had a
“‘management rights provision’” that gave the city the right to manage the police department,
which the Tenth Circuit concluded “plainly encompassed the city’s right to enter into a remedial
settlement agreement during the terms of the” CBA. Albuquerque MTI Response at 7-8 (citing
Johnson v. Lodge No. 93, 393 F.3d at 1101, 1104). The Tenth Circuit further concluded that
allowing the union to veto settlement agreements with any relation to its members’ employment
terms would “neuter the management rights provision” and “unduly frustrate Congress’s
preference for achieving compliance with race discrimination laws by voluntary means.”
Albuquerque MTI Response at 8 (citing Johnson v. Lodge No. 93, 393 F.3d at 1105). Moreover,
Albuquerque argues, the Tenth Circuit concluded that, because the settlement agreement did not
thrust obligations or duties on the union, the settlement agreement did not impair the union’s rights.
See Albuquerque MTI Response at 8 (citing Johnson v. Lodge No. 93, 393 F.3d at 1107).
Albuquerque draws a parallel between Johnson v. Lodge No. 93 and this case, because both cases
involve a CBA with a management-rights provision. See Albuquerque MTI Response at 8 (citing
CBA § 32.1-2, at 41-42)(stating that the CBA’s management-rights provision gives Albuquerque
the right to implement rules for APD’s operation and that the CBA establishes the Officers
Association’s “express agreement that its members shall be bound by and obey such rules to the

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extent the rules do not conflict with the CBA”). Albuquerque further notes that the Original
Settlement Agreement contains no concrete rules or procedures, and only “an agreement as to
remedial policies in general,” and thus any alleged conflict of the rules or procedures with the CBA
are “purely speculative” and therefore insufficient “to establish a protectable interest in the
litigation.” Albuquerque MTI Response at 8 (citing Johnson v. Lodge No. 93, 393 F.3d at 1105).
Albuquerque acknowledges that, although the Officers Association does not specify any
conflicting provisions in its MTI, the Officers Association notes conflicting provisions in its Brief
of Amicus Curiae Albuquerque Police Officers’ Association, filed January 14, 2015 (Doc.
67)(“Amicus Curiae Brief”). See Albuquerque MTI Response at 9. Albuquerque first turns to
CBA §§ 20.1.4, 20.1.6, 20.1.7, which are about administrative investigations resulting from “an
official or unofficial complaint.” Albuquerque MTI Response at 9 (citing CBA § 20.1.3, at 2829.). In contrast, Albuquerque asserts, the Original Settlement Agreement’s provisions are not
about investigations resulting from complaints, but about “fact-finding inquiri[es]” that result from
use-of-force incidents. Albuquerque MTI Response at 9. Albuquerque regardless turns to the first
specific alleged conflict, which is that the Original Settlement Agreement’s requirement that a
supervisor immediately respond to the scene of a use-of-force incident to begin the investigation
conflicts with the CBA § 20.1.4’s requirement that an officer must be notified about the
disciplinary investigation’s nature before interrogation. See Albuquerque MTI Response at 9.
Albuquerque argues that the supervisor can inform the officer about the nature of the investigation
before the supervisor begins the on-scene interrogation and that the supervisor’s arrival is itself
notice to the officer about the investigation. See Albuquerque MTI Response at 9. Albuquerque
further notes that the CBA’s requirement was established to resolve investigations that arise from
complaints, while the Original Settlement Agreement’s provision is about investigations that arise

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from use-of-force incidents. See Albuquerque MTI Response at 9 (citing CBA § 20.1.3, at 2829).
Albuquerque turns to the second alleged conflict -- that the Original Settlement
Agreement’s requirement that a supervisor must interview the involved officer immediately upon
arrival at the use-of-force incident’s scene conflicts with CBA § 20.1.6, which permits an officer
to have a representative present at interrogation. See Albuquerque MTI Response at 9-10 (citing
Amicus Brief5). Albuquerque counters that these provisions are consistent, because the officer can
request that a representative come to the scene for the interview. See Albuquerque MTI Response
at 10. Further, Albuquerque argues, these provisions are consistent, because CBA § 20.1.11 states
that, as long as the interrogation is not delayed more than two hours, the involved officer is
permitted to consult with a bargaining representative or counsel. See Albuquerque MTI Response
at 10. Albuquerque then turns to the third alleged conflict -- that CBA § 20.1.8, which states that
the Internal Affairs Bureau must not handle any potential criminal investigations, and these
investigations thus must be transferred to a criminal investigations unit or a law enforcement
agency, conflicts with the Settlement Agreement’s creation of a criminal investigation team within
the Internal Affairs Bureau. See Albuquerque MTI Response at 10. Albuquerque argues that a
criminal investigation team situated within the Internal Affairs Bureau can operate independently
from the Internal Affairs Bureau, consistent with the requirement in CBA § 20.1.8 that the Internal
Affairs Bureau not handle criminal investigations. See Albuquerque MTI Response at 10.
Albuquerque next turns to the Officers Association’s general issues. See Albuquerque

5

Albuquerque cites “Doc. 66 at 11/16.” Albuquerque MTI Response at 9. Although
Doc. 66 is the Amicus Brief, the Amicus Brief’s page 11 does not contain any substantive text,
and the Amicus Brief does not have a page 16.

- 21 -

MTI Response at 11. Albuquerque counters the Officers Association’s argument that the Original
Settlement Agreement’s omission of officers’ rights under Garrity v. New Jersey, 385 U.S. 493
(1967), conflicts with the CBA by noting that the Original Settlement Agreement does not contain
any language undermining the officers’ Garrity v. New Jersey rights. See Albuquerque MTI
Response at 11 (citing Amicus Curiae Brief, at 12, 16). Albuquerque next counters the Officers
Association’s assertion that the Original Settlement Agreement provisions allowing for “additional
investigatory protocol in use of force incidents” conflict with the CBA. Albuquerque MTI
Response at 11 (citing Amicus Curiae Brief at 12, 16). Albuquerque argues that these provisions
do not conflict with the CBA, because the CBA does not have any provisions relating to use-offorce investigations, and because the CBA does not restrict Albuquerque’s rights regarding useof-force investigations. See Albuquerque MTI Response at 11 (citing N.M. Stat. Ann. § 10-7E6(D)). Similarly, Albuquerque asserts, the CBA does not contain provisions relating to additional
officer training and on-body camera systems, so Albuquerque may consent to additional officer
training and on-body camera systems procedures.

See Albuquerque MTI Response at 11.

Moreover, Albuquerque argues, any future conflict is speculative, because Albuquerque has not
yet established procedures for use-of-force investigation, additional training, or on-body camera
systems, and because the CBA may expire before the procedures are implemented.

See

Albuquerque MTI Response at 11-12.
Albuquerque next argues that the Court should not permit the Officers Association to object
to the Original Settlement Agreement’s creation and staffing of the criminal investigations unit,
because that unit is “so critical to the success of the negotiated remedies” that, if the Court
permitted the Officers Association to bargain regarding the criminal investigations unit, the
Original Settlement Agreement would be “frustrate[d.]” Albuquerque MTI Response at 12.

- 22 -

Moreover, Albuquerque argues, the Supremacy Clause of the Constitution of the United States of
America precludes the Officers Association “from overriding the federal constitutional principles”
embedded in the Original Settlement Agreement. Albuquerque MTI Response at 12 (citing
Williams v. Eaton, 443 F.2d 422, 429 (10th Cir. 1971)(concluding that the Supremacy Clause bars
the state constitution from “overrid[ing] federal constitutional principles”)).
Albuquerque notes that CBA § 2.5 anticipates the United States’ and Albuquerque’s
Settlement Agreement and resulting policies affecting Officers Association members’
employment conditions and terms, because the provision requires Albuquerque to notify and
discuss with the Officers Association “‘the implementation of policies or directives related to its
agreement discussions with the DOJ that impacts the Officers terms or conditions of
employment.’” Albuquerque MTI Response at 12 (quoting CBA § 2.5, at 5). Albuquerque further
notes that the CBA anticipated that the Settlement Agreement might affect the CBA’s terms,
because the CBA states that “[t]he commitment [to meet and confer. . . on the anticipated changes]
will not prevent the [Officers Association] from submitting the changes for negotiations when the
parties negotiate a successor” CBA. Albuquerque MTI Response at 13 (quoting CBA § 2.5, at
5)(alteration in Albuquerque MTI Response). Albuquerque argues that this provision does not
require Albuquerque and the Officers Association to enter into an agreement before Albuquerque
can consent to the Settlement Agreement; rather the provision requires only that Albuquerque meet
with the Officers Association for discussion. See Albuquerque MTI Response at 13 (noting that
“the provision contemplates” disagreement between Albuquerque and the Officers Association,
which is why it permits the Officers Association to “submit[] any changes to the CBA as a result
of the settlement for negotiations when the parties negotiate a successor collective bargaining
agreement”). Thus, Albuquerque argues, CBA § 2.5 is consistent with the Officers Association’s

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disagreement with a finalized Settlement Agreement. See Albuquerque MTI Response at 13.
Albuquerque further notes that it has not breached this provision, as the Officers Association
argues, because it has engaged the Officers Association throughout the process. See Albuquerque
MTI Response at 13. Even if Albuquerque breached this provision, it argues, the Officers
Association’s remedy is a breach-of-contract action in a separate court proceeding, not intervention
in this case. See Albuquerque MTI Response at 13-14 (citing APOA v. City of Albuquerque,
2013-NMCA-0110, 314 P.2d 677). Albuquerque then summarizes its arguments, concluding that
the Court should deny the Officers Association’s MTI, because the Officers Association has no
protectable interest in the merits or the remedial phases of litigation. See Albuquerque MTI
Response at 14.
Albuquerque turns to its alternative argument -- that, even if the Court concludes that the
Officers Association has a protectable interest in the merits phase or in the remedial phase of the
litigation, the Officers Association does not have standing to protect its interest. See Albuquerque
MTI Response at 14. Albuquerque argues that the Officers Association does not have standing,
because the Settlement Agreement does not impose any duties or obligations on it, and that the
Officers Association’s members do not have standing, because they are non-parties to the case,
and because they have not suffered any injury beyond APD’s “agreement to implement certain
policies.” Albuquerque MTI Response at 14-15 (citing Floyd v. City of New York, 302 F.R.D. at
187; Local No. 93 v. Cleveland, 478 U.S. at 529-30; Johnson v. Lodge No. 93, 393 F.3d at 1107).
Albuquerque again challenges the Officers Association’s reliance on United States v. City
of L.A., this time for the proposition that a union can intervene as a matter of right if a settlement
agreement could harm a union’s “ability to protect and enforce its contract provisions.”
Albuquerque MTI Response at 15. Albuquerque distinguishes that case as arising out of the Ninth

- 24 -

Circuit, while the Tenth Circuit, in contrast, has rejected a union’s argument that a settlement
agreement could impair its rights under future CBAs as “speculative.” Albuquerque MTI Response
at 15 (citing Johnson v. Lodge No. 93, 393 F.3d at 1105). Albuquerque reiterates that any future
violation is speculative and that the Officers Association already has a remedy -- a breach-ofcontract lawsuit -- available to it should the violations manifest. See Albuquerque MTI Response
at 15.
Albuquerque next argues that the Court should not permit the Officers Association to
permissively intervene under rule 24(b)(2). See Albuquerque MTI Response at 15. Albuquerque
argues that it already has demonstrated that the Officers Association has no protectable interest
and that the Officers Association has conceded that it is not bringing a claim. See Albuquerque
MTI Response at 16 (citing MTI at 14-15, 18).

Thus, Albuquerque asserts, the Officers

Association must demonstrate that it has a common defense either with its claim that “it seeks to
defend its member officers against allegations of police misconduct [or with its claims that it]
seeks to address the viability of the remedies in the settlement agreement.” Albuquerque MTI
Response at 16. Albuquerque argues that the first claim is not a valid defense, because the United
States makes claims against only Albuquerque, and not individual Officers Association members;
and that the second claim is not a valid defense, because it is based on a hypothetical violation
between the CBA and rules arising out of the Settlement Agreement. See Albuquerque MTI
Response at 16.
Moreover, Albuquerque argues, permissive intervention would result in undue delay and
prejudice, because the parties already have spent “thousands of person-hours” in the negotiation
process, and permitting the Officers Association to intervene would mean that the parties would
need to restart negotiations. Albuquerque MTI Response at 16-17. Further, Albuquerque argues,

- 25 -

permissive intervention would provide the Officers Association with the “unchecked ability to
influence the City’s right to control litigation strategy in this case.” Albuquerque MTI Response
at 17 (citing Floyd v. City of N.Y., 302 F.R.D. at 117). Thus, Albuquerque concludes, the Court
should deny permissive intervention.
Albuquerque offers reassurance that it will continue to engage the Officers Association and
other community stakeholders during the Settlement Agreement’s implementation.

See

Albuquerque MTI Response at 17. Albuquerque notes that it met with the Officers Association
for four hours the day before it filed its MTI Response. See Albuquerque MTI Response at 17.
Thus, Albuquerque concludes, “neither intervention of right or by permission is necessary,
appropriate, or permi[ssible].” Albuquerque MTI Response at 17.
3.

The United States MTI Response.

The United States responds. See United States’ Opposition to Motion to Intervene by the
Albuquerque Police Officers’ Association at 1, filed January 29, 2015 (Doc. 94)(“U.S. MTI
Response”). The United States asks the Court to deny the Officers Association’s request, because
the United States engaged with the Officers Association and its members throughout the
investigation and settlement processes, and because the Officers Association has not shown that
“any provision of the Settlement Agreement tips that balance [between the needs of the officers,
the needs of the community, and constitutional, effective policing] so far away from the interests
of its members that the remarkable remedy it requests -- the right to renegotiate the Settlement
Agreement -- is merited.” U.S. MTI Response at 1. The United States begins its argument by
summarizing the ways in which it has engaged with the Officers Association and its members
throughout the investigation and settlement processes. See MTI at 2. It notes that the United
States met with the Officers Association thirteen times, beginning during the investigation up until

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the day before it filed its U.S. MTI Response. See U.S. MTI Response at 2. The United States
emphasizes that it sent out an open invitation for the Officers Association’s members to attend
some of these meetings. See U.S. MTI Response at 2. The United States contends that it heard
from officers not only at these meetings, but also through direct outreach. See U.S. MTI Response
at 3 (stating that it talked to “hundreds” of officers through outreach). It notes that the “DOJ team
held more than 40 meetings with officers that were attended, in total, by more than 500 police
officers” and that many of these meetings were held in APD Area Commands. U.S. MTI Response
at 3. It adds other examples of the United States involving the Officers Association in the process:
(i) United States attorneys and investigators participated in ride-alongs with officers; (ii) United
States attorneys met with officers at each APD Area Command to answer questions and to receive
comments after the United States issued its findings; and (iii) the United States and Albuquerque
held seven joint briefings with officers at APD’s Training Academy in December, 2014, which
approximately seventy-five percent of APD personnel attended. See U.S. MTI Response at 3. The
United States emphasizes that the Officers Association has another way to voice its concerns: filing
an amicus curiae brief. See U.S. MTI Response at 3. It notes that the United States and
Albuquerque met with the Officers Association after the Officers Association filed its Amicus
Curiae Brief to discuss the Officers Association’s concerns. See U.S. MTI Response at 3.
The United States then turns to its next argument -- that the Original Settlement Agreement
reflects the Officers Association’s participation. See U.S. MTI Response at 4. It provides Original
Settlement Agreement terms that addressed some of the Officers Association’s concerns: (i) a
requirement that investigating officers conduct thorough, timely investigations that result in
complete findings; (ii) a request that there will be an investigation outcome of officer exoneration,
in contrast to an outcome of “inconclusive findings’; and (iii) a provision that establishes a

- 27 -

disciplinary system that “is applied consistently and fairly” using a disciplinary matrix that
considers mitigating and aggravating factors. U.S. MTI Response at 4 (citing Original Settlement
Agreement, ¶¶ 183-192, at 60-63; id. ¶ 201, at 65). Moreover, the United States argues that, after
learning that APD officers interpreted the early intervention system as “a disciplinary tool,” the
United States and Albuquerque made sure that the Original Settlement Agreement reworked the
early intervention system to serve “its intended purpose” -- providing early training and support to
officers to circumvent future issues.

U.S. MTI Response at 4 (citing Original Settlement

Agreement ¶¶ 212-19, at 68-71).
The United States then explains how it addressed other concerns from some of the Officers
Association’s members. First, the United States notes, because officers were concerned that
promotional policies were unfair, the Original Settlement Agreement now has specific concrete
requirements for promotion and evaluations, and it holds supervising officers accountable for
evaluations. See U.S. MTI Response at 5 (citing Original Settlement Agreement ¶¶ 241-46, at 7677). Next, the United States explains, because officers were concerned about staffing shortages,
the Original Settlement Agreement required a staffing study and staffing plan. See U.S. MTI
Response at 5 (citing Original Settlement Agreement ¶ 204, at 66).
The United States then notes that the CBA between Albuquerque and the Officers
Association “provides ongoing opportunities to effect reform of the Albuquerque Police
Department.” U.S. MTI Response at 5-6 (citing CBA § 2.5, at 5)(noting that the CBA requires
Albuquerque and the Officers Association to collaborate on issues that affect the Officers
Association member’s employment terms and conditions). The United States emphasizes that the
Officers Association approved the Original Settlement Agreement before the United States and
Albuquerque filed it in court. See U.S. MTI Response at 6 (quoting Stephanie Lopez, the Officers

- 28 -

Association president, as stating that “there’s nothing in the agreement that the department can’t
do”)(Meeting of Albuquerque City Council at 41:43-42:35, taken November 6, 2014
(http://cabq.granicus.com/MediaPlayer.php?view_id=2&clip_id=97).

The Original Settlement

Agreement, the United States argues, will not impact the current CBA, which is alive from July
16, 2014 to July 16, 2015, because it requires APD Policy and Procedures Board to develop and
amend policies by August 14, 2015, and to implement these policies by November 14, 2015. See
U.S. MTI Response at 6-7 (citing First Proposed Settlement Agreement ¶¶ 143-44, at 51).
According to the United States, both deadlines fall after the CBA’s termination. See U.S. MTI
Response at 7.
The United States then moves to its legal arguments. It begins by arguing that the Officers
Association is not entitled to intervene by right, because the Officers Association has not shown a
protectable interest that would be impaired but for its intervention. See U.S. MTI Response at 7.
The United States cites the four factors that the Officers Association must demonstrate to intervene
as of right: (i) a timely motion; (ii) “an interest relating to the property or transaction which is the
subject of the action”; (iii) an impairment to the interest; and (iv) inadequate representation by the
existing parties of the interest. U.S. MTI Response at 7-8 (quoting SWEPI, PL v. Mora Cty., N.M.,
No. CIV 14-0035, 2014 WL 6983288 at *23 (D.N.M. Dec. 5, 2014)(Browning, J.), and citing
Elliot Indus. LP v. BP Am. Prod. Co., 407 F.3d 1091, 1103 (10th Cir. 2005)). It concedes the first
factor -- timeliness -- and the fourth factor -- adequacy of representation. See U.S. MTI Response
at 8. It turns instead to whether the Officers Association has a protectable interest in the litigation,
noting that determining whether a protectable interest exists “‘is a highly fact-specific
determination.’” U.S. MTI Response at 8 (quoting Coal. of Ariz./N.M. Ctys. for Stable Econ.
Growth v. Dep’t of Interior, 100 F.3d 837, 841 (10th Cir. 1996)(internal quotation marks and

- 29 -

citations omitted in the U.S. MTI Response)(“Coal. of Ariz./N.M. Ctys. v. Dep’t of Interior”). It
acknowledges that the Tenth Circuit has acknowledge protectable interests other than interests that
are “‘direct, substantial, and legally protectable,’” U.S. MTI Response at 8 n.1 (quoting Utah Ass’n
of Ctys. v. Clinton, 255 F.3d 1246, 1251 (10th Cir. 2001)), and notes that the Tenth Circuit has
concluded that the primary concern “‘is the practical effect of the litigation on the applicant for
intervention,’” U.S. MTI Response at 8 n.1 (quoting San Juan Cty., Utah v. United States, 503
F.3d 1163, 1193 (10th Cir. 2007)(en banc)(“San Juan Cty. v. United States”)). The Officers
Association, the United States argues, has not demonstrated a protectable interest in the remedial
phase or the liability phase of the case, and it cannot veto the Settlement Agreement. See U.S.
MTI Response at 9. Thus, the United States argues, Judge Brack should deny the Officers
Association’s MTI. See U.S. MTI Response at 9.
The United States argues that the Court should not allow the Officers Association to
intervene in the remedial phase of the case, because the Officers Association “has identified no
way in which the Settlement Agreement in this case impairs a protectable interest” nor has it
identified “any provision of the CBA that conflicts with its Settlement Agreement.” U.S. MTI
Response at 9. The United States notes that the Officers Association heavily relied on United
States v. City of L.A., but the United States distinguishes that case from the current case. See U.S.
MTI Response at 9.

The United States notes that, in United States v. City of L.A., the Ninth

Circuit concluded that the police union’s interest arose from “‘provisions [in the consent decree]
that conflict[ed]’ with the union’s collective bargaining agreement.” U.S. MTI Response at 9
(quoting United States v. City of L.A., 288 F.3d at 400)(alterations added in U.S. MTI Response).
The United States argues that the Officers Association, in contrast, has not identified any conflicts
between the Original Settlement Agreement and the CBA. See U.S. MTI Response at 9. The

- 30 -

United States emphasizes that, although the Officers Association notes that the Original Settlement
Agreement contains new discipline guidelines, the Officers Associations does not demonstrate
how these guidelines conflict with any CBA provisions. See U.S. MTI Response at 9-10.
The United States acknowledges that the Officers Association highlights six alleged
conflicts between the Original Settlement Agreement and the CBA in its Amicus Curiae Brief.
See U.S. MTI Response at 10 (citing Amicus Curiae Brief). It identifies the six alleged conflicts:
(i) use-of-force investigations, which the Officers Association argues conflicts with the CBA
requirements that officers are permitted a representative present during interrogation and that
officers are entitled to know disciplinary investigation’s nature before interrogation; (ii) the
Internal Affairs Unit’s criminal investigations, which the Officers Association argues conflict with
the “CBA’s prohibition on the Internal Affairs Unit handling criminal investigations”; (iii) the
absence of the officers’ rights under the Fifth Amendment to the Constitution of the United States
of America; (iv) the power given to commanders to order “additional investigation[s] of possible
misconduct,” which the Officers Association argues conflicts with the CBA’s provision requiring
investigators to inform an officer of a disciplinary investigation’s nature before interrogation; (v)
the disciplinary matrix, the early-intervention system, and the Force Review Board, which the
Officers Association argues the Original Settlement Agreement forbids without the Officers
Association’s approval; (vi) on-body recording systems and crisis intervention training, which the
Officers Association argues can be implemented only if there are changes in working conditions
and bargaining regarding officer compensation. See U.S. MTI Response at 10-11 (citing Amicus
Curiae Brief at 7-9). The United States then explains how each of the alleged conflicts is not a
conflict, because “the Settlement Agreement and the CBA are compatible on all of these points.”
U.S. MTI Response at 11. Before turning to the conflicts, the United States notes that some of the

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provisions that the Officers Association discusses in the Amicus Curiae Brief implicate
Albuquerque’s managerial rights regarding its employees, which include police officers. See U.S.
MTI Response at 11.
Turning to the first conflicting provision, the United States argues that the Original
Settlement Agreement is consistent with the CBA regarding notice, because the Original
Settlement Agreement does not require the “supervisors to interrogate officers before giving
notice.” U.S. MTI Response at 12 (citing First Proposed Settlement Agreement ¶¶ 50-59, at 2327). Moreover, the United State argues, officers will have notice of the disciplinary investigation’s
nature before interrogation, because the investigation will begin immediately while the officer is
still at the scene. See U.S. MTI Response at 12. The United States contradicts the Officers
Association’s argument that this investigation timeline will prevent officers from having a
representative present during interrogation, because “nothing in the Settlement Agreement
prevents officers from having a representative present during any interview,” and the Original
Settlement Agreement does not require the interrogation to begin as soon as the supervisory arrives
on-scene. U.S. MTI Response at 13. It notes that “use of force investigations under the Settlement
Agreement will not usually be ‘administrative investigations,” as the CBA uses that term, because
most uses of force will likely be constitutional and within APD policy.” U.S. MTI Response at 13.
Thus, the United States concludes, any conflict between the Original Settlement Agreement and
the CBA is fictional. See U.S. MTI Response at 13.
The United States next turns to the Officers Association’s second alleged conflict -- that
the CBA forbids the Internal Affairs Unit from conducting criminal investigations, as set forth in
the Original Settlement Agreement.

See U.S. MTI Response at 14.

The United States

acknowledges that the Original Settlement Agreement provides for the Internal Affairs Bureau to

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conduct criminal investigations, but it notes that the Original Settlement Agreement has terms “that
thoroughly protect officers’ interest in maintaining separation between the two kinds of
investigations.” See U.S. MTI Response at 14. It argues that the Original Settlement Agreement
terms that help keep the investigations separate advance the CBA’s same interest of separation
between the investigations. See U.S. MTI Response at 15.
The United States next turns to the Officers Association’s assertion that the lack of
discussion of the officers’ Fifth Amendment rights that Garrity v. New Jersey guarantees conflicts
with the CBA. See U.S. MTI Response at 15. Garrity v. New Jersey, the United States asserts,
ensures that officers’ compelled, incriminating statements given during administrative
investigations in which their jobs were threatened cannot be used against them in a criminal trial.
See U.S. MTI Response at 15 (citing Garrity v. New Jersey, 385 U.S. at 496-99). The United
States argues that there is nothing in the Original Settlement Agreement, nor does the Officers
Association point to anything in the Original Settlement Agreement, that harms officers’ Garrity
v. New Jersey rights. See U.S. MTI Response at 15. Moreover, the United States argues, the
Original Settlement Agreement has seven provisions that protect officers regarding compelled
statements. See U.S. MTI Response at 15-16 (citing Original Settlement Agreement ¶¶ 186, 187,
189, 199, 200, at 61, 62, 65).
The United States then turns to the Officers Association’s fourth stated conflict -- the
commanders’ power to order “additional investigation[s]” into possible misconduct. U.S. MTI
Response at 16. The United States explains that the Original Settlement Agreement permits a
commander who has reviewed a supervisor’s use-of-force investigation report to order additional
investigation if the commander concludes that there may be additional evidence that would assist
the investigation. See U.S. MTI Response at 16 (citing Settlement Agreement ¶ 54, at 25). The

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Officers Association, according to the United States, contends that this authority conflicts with the
officers’ right to receive notice regarding the disciplinary investigation’s nature before
interrogation. See U.S. MTI Response at 16 (citing Amicus Curiae Brief at 8). The United States
counters the Officers Association’s assertion of a conflict by reiterating that “nothing in the
Settlement Agreement requires officers to be interrogated without first receiving notice” and that
“officers whose force has been investigated by a supervisor will have received ample notice” of
the investigation’s nature. U.S. MTI Response at 17.
The United States then turns to the Officers Association’s fifth alleged conflict -- the
creation of the Force Review Board, the early-intervention system, and the disciplinary matrix,
which the Officers Association asserts require its approval before formation. See U.S. MTI
Response at 17. The United States notes that, although the Officers Association has asserted an
interest in all disciplinary matters, it has not shown that this case’s outcome will substantially
affected this interest. See U.S. MTI Response at 17 (citing Amicus Curiae Brief at 9; San Juan
Cty. v. United States, 503 F.3d at 1195). The United States notes that the Officers Association has
not even alleged the Settlement Agreement’s discipline guidelines and procedures conflict with
the CBA, and thus there must not be any conflict. See U.S. MTI Response at 17.
The United States turns to the Officer Association’s sixth proposed conflicting provisions
-- the on-body recording systems and the crisis-intervention training. See U.S. MTI Response
at 17. The United States argues that, again, the Officers Association has not contended that there
is anything related to the on-body recording systems in the Settlement Agreement that conflicts
with the CBA. See U.S. MTI Response at 17. As to the crisis-intervention training, the United
States contravenes the Officers Association’s argument that crisis-intervention training is
impermissible violates the Officers Association’s bargaining rights regarding new-training

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compensation by noting that the Original Settlement Agreement does not say anything precluding
the officers from receiving compensation for the training. See U.S. MTI Response at 18. Thus,
the United States concludes, neither of these asserted issues has any basis in the Original
Settlement Agreement. See U.S. MTI Response at 18.
The United States moves to the Officers Association’s argument that it has an interest in
the case’s merits phase, because, in the Complaint, the United States alleges that Albuquerque
allows officers to engage in a pattern or practice of excessive force, makes allegations against
Officers Association members, and seeks relief against Albuquerque employees, including Officer
Association members. See U.S. MTI Response at 18 (citing MTI at 7, 11). The United States
counters that the Complaint is against only Albuquerque, that the allegations are not against any
individual Officers Association members, and that it is seeking relief against only Albuquerque.
See U.S. MTI Response at 18 (citing Complaint ¶¶ 2, 7-25, 28, at 2-7). Moreover, the United
States argues, the Officers Association’s assertion that it seeks to defend members from
misconduct allegations is moot, because the Settlement Agreement ensures that the case will not
go to trial. See U.S. MTI Response at 18. Thus, the United States argues, Judge Brack should not
permit the Officers Association to intervene in the merits stage of litigation. See U.S. MTI
Response at 18-19.
The United States turns to whether Judge Brack should permit the Officers Association to
intervene permissively, noting as a threshold matter that Judge Brack must have independent
jurisdiction to allow permissive intervention and that Judge Brack cannot determine whether he
has jurisdiction over the Officers Association’s claims, because the Officers Association has not
made any claims. See U.S. MTI Response at 19 n.3 (citing Williams v. W. Laundry Equip. LLC,
No. CIV 06-0569, 2006 WL 4061164 at *9 (D.N.M. Nov. 21, 2006)(Browning, J.)(citing Sec. Ins.

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Co. v. Schipporeit, 69 F.3d 1377, 1381 (7th Cir. 1995)). The United States argues that the Officers
Association has not complied with the permissive-intervention requirements under rule 24(c) of
the Federal Rules of Civil Procedure, because it has not submitted the required “‘pleading that sets
out the claim or defense for which intervention is sought.’” See U.S. MTI Response at 19 (quoting
Fed. R. Civ. P. 24(c))(citing MTI at 14-15)(stating that the Officers Association “does not seek to
bring claims”). The United States acknowledges that Judge Brack could construe the Officers
Association’s statement that it “‘seeks to defend its member officers against allegations of police
misconduct’” as a defense, but the United States notes that the Original Settlement Agreement
precludes a need for liability findings. U.S. MTI Response at 20.
The United States argues, in the alternative, that, if Judge Brack concludes that the Officers
Association has raised a defense that shares a common question of law or fact, “the Court should
deny permissive intervention because granting it would unduly delay and prejudice the Parties in
this action.” U.S. MTI Response at 20. It notes that the United States and Albuquerque have
extensively engaged the Officers Association throughout the process and that the Officers
Association has filed its Amicus Curiae Brief. See U.S. MTI Response at 20-21. The United
States emphasizes that, even as an intervenor, the Officers Association would not be able to block
the Original Settlement Agreement, and thus, after all its participation in the process and lack of
actual conflicts, the Officers Association’s suggestion that Judge Brack send it to mediation with
the United States and Albuquerque to negotiate a new Settlement Agreement would be an
unwarranted delay. See U.S. MTI Response at 21-22. Thus, the United States concludes, Judge
Brack should deny the Officers Associations request to permissively intervene. See U.S. MTI
Response at 22.

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5.

Officer Association’s MTI Reply to Albuquerque.

The Officers Association replies to Albuquerque. See Reply in Support of Motion to
Intervene, filed February 13, 2015 (Doc. 99)(“MTI Reply to Albuquerque”). The Officers
Association begins by countering Albuquerque’s allegedly “too broad” assertion that the Officers
Association does not have a protectable interest, because the United States “accus[ing Officers
Association] members of constitutional violations” is not a protectable interest, and because the
Officers Association’s “interest in the remedies does not exist simply because these are mandatory
subjects of collective bargaining.” MTI Reply to Albuquerque at 1. The Officers Association
contradicts Albuquerque’s argument that United States v. City of L.A. does not support the
Officers Association’s interest by noting that the Ninth Circuit concluded that the union had a dual
interest: (i) based on whether the settlement agreement and CBA did or could conflict; and (ii)
based on the union’s “right to present its position” on the settlement agreement and have the district
court “fully consider” its views. MTI Reply to Albuquerque at 2 (citing United States v. City of
L.A., 288 F.3d at 400). The Officers Association concludes that, regardless, “the district court
must hear and consider the [Officer Association’s] views prior to any approval of the [Settlement
Agreement.]” MTI Reply to Albuquerque at 2 (citing United States v. City of L.A., 288 F.3d at
400). The Officers Association concludes that it has a right to be heard even as a “third-party.”
MTI Reply to Albuquerque at 2 (citing Local No. 93 v. Cleveland, 478 U.S. at 501).
The Officers Association next argues that it does not have to demonstrate that the Original
Settlement Agreement conflicts with the CBA at this point in the litigation and that it only needs
to meet rule 24(a)(2) requirements to intervene as a matter of right. See MTI Reply to Albuquerque
at 3. The Officers Association points to Floyd v. City of N.Y., which it alleges Albuquerque
misuses to support the proposition that the Original Settlement Agreement does not seek any relief

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against individual officers. See MTI Reply to Albuquerque at 3 (citing Floyd v. City of N.Y., 302
F.R.D. at 117). It distinguishes Floyd v. City of N.Y. from this case by noting that, unlike Floyd
v. City of N.Y., it has identified state and local laws that give the Officers Association bargaining
rights over some issues in the litigation. See MTI Reply to Albuquerque at 4. The Officers
Association further distinguishes Floyd v. City of N.Y. by noting the union in that case did not
raise any “specific,” “particular” concerns. MTI Reply to Albuquerque at 4. The Officers
Association counters that the Original Settlement Agreement subjects Officers Association
members to liability and damages. See MTI Reply to Albuquerque at 3-4)(citing Original
Settlement Agreement ¶ 15, at 15 (stating that “the use of unreasonable force will subject officers
to discipline, possible criminal prosecution, and/or civil liability”)).
The Officers Association then argues that it has an interest in protecting its rights under the
CBA. See MTI Reply to Albuquerque at 4. It notes that courts have concluded that, if a proposed
remedy might harm a contractual right, that contractual right is a protectable interest. See MTI
Reply to Albuquerque at 4-5 (citing W.R. Grace & Co. v. Local Union, 759, 461 U.S. 767, 771
(1983); B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 545 (1st Cir. 2006); Sw.
Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001)). The Officers Association
argues that Albuquerque has conceded that the Original Settlement Agreement impacts this
interest, because Albuquerque has conceded that Original Settlement Agreement provisions
permitting the Internal Affairs Unit to conduct criminal investigations conflict with CBA
provisions, and because Albuquerque has conceded that it must respect the CBA’s provision that
officers must be given sufficient time to get representation before an investigation begins. See
MTI Reply to Albuquerque at 5.

Yet, the Officers Association argues, Albuquerque has

acknowledged that it will violate the notice and representation provisions, because in its Response,

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Albuquerque noted that “it is assumed” that supervisors arriving on scene would notify the
involved officer of his or her rights before beginning the investigation and that the officer would
have only two hours to get representation. MTI Reply to Albuquerque at 5. According to the
Officers Association, Albuquerque thus has conceded conflicts between the Original Settlement
Agreement and the CBA. See MTI Reply to Albuquerque at 5.
The Officers Association then argues that the Original Settlement Agreement “impacts
exactly the mandatory subjects of collective bargaining raised in the Floyd case.” MTI Reply to
Albuquerque at 5-6. Thus, the Officers Association argues, it should be permitted to negotiate all
Settlement Agreement terms and definitions that could result in officer discipline, such as Original
Settlement Agreement § III.12.NN, which defines reasonable “use of force” as force that “is
objectively reasonable under the circumstances and the minimum amount of force necessary to
effect an arrest.” MTI Reply to Albuquerque at 6. The Officers Association notes its concern
about “who or how the minimum amount of force is to be fairly judged.” MTI Reply to
Albuquerque at 6. The Officers Association reiterates that Albuquerque does not have the right to
make these unilateral changes to the CBA to settle its dispute with the United States. See MTI
Reply to Albuquerque at 7 (citing United States of City of L.A., 28 F.3d at 399, and citing Local
No. 93 v. Cleveland, 478 U.S. at 529).
The Officers Association argues that, because Albuquerque is committing “violations,” the
Officers Association has the right to intervene. See MTI Reply to Albuquerque at 7 (citing Local
No. 93 v. Cleveland, 478 U.S. at 519-22 (stating that court is required to give a party who shows
that a settlement agreement “does or will have an impact” on the union’s representation of its
members a fairness hearing “to determine and litigate the federal court issues [] concerning the
matters which impact the contract”)(emphasis added in MTI Reply to Albuquerque)). The Officers

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Association counters Albuquerque’s assertion that Albuquerque gave the Officers Association
many opportunities to participate in the Settlement Agreement process, by stating that only the
United States met with Officers Association members and its Executive Board, and that the
Officers Association “as a collective body, was never given the opportunity to meet and discuss
the Settlement Agreement that was being negotiated.” MTI Reply to Albuquerque at 7. The
Officers Association further notes that the CBA was in negotiations while the Settlement
Agreement was in negotiations, so if the United States and Albuquerque had “acted in good faith,”
some issues could have been resolved during negotiations. MTI Reply to Albuquerque at 7-8. It
further argues that, despite the CBA’s procedures establishing how Albuquerque and the Officers
Association should meet regarding the Settlement Agreement, that meeting never occurred. See
MTI Reply to Albuquerque at 9.
The Officers Association moves to its next argument -- the “remedies of litigation.” MTI
Reply to Albuquerque at 8. The Officers Association first tackles Albuquerque’s argument
regarding the CBA’s management-rights provisions, by stating that, although Albuquerque has
some managerial rights, these rights do not allow it to take action that conflicts with the CBA. See
MTI Reply to Albuquerque at 8. It then cites the Labor Ordinance, stating that the statute protects
the Officers Association’s right to negotiate its members’ employment conditions, and then to the
Constitutions of the United States and of New Mexico, stating that they forbid Albuquerque from
entering into a settlement agreement that violates its existing contracts. See MTI Reply to
Albuquerque at 8 (citing Labor Ordinance; Constitution of the State of New Mexico, art. II. § 19;
Am. Fed. of State Courts and Mun. Emps., Council 18 AFL-CIO v. State of N.M.,, et al., 2013NMCA-106, 314 P.3d 674).
The Officers Association undermines Albuquerque’s reliance on the Supremacy Clause as

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a basis for precluding intervention by stating that the Supremacy Clause is inapplicable in this
case, because the Supreme Court in Local No. 93 v. Cleveland was talking about “the rights of a
third party to intervene and present evidence reflecting the argument and the contractual rights of
the [party] protected under state and local authority” when discussing that a decision cannot be
entered over a party’s objections if the decision will impact that party’s rights. MTI Reply to
Albuquerque at 8-9 (citing Local No. 93 v. Cleveland, 478 U.S. at 1075; United States v. City of
Hialeah, 140 F.3d 968 (11th Cir. 1998)(S.J., Kravitch)(dissenting).
The Officers Association turns to Albuquerque’s third argument -- that, even if the Officers
Association has a protectable interest in the merits phase or in the remedial phase of the Original
Settlement Agreement, it does not have standing. See MTI Reply to Albuquerque at 9. The
Officers Association states that, in making this argument, Albuquerque misapplied the caselaw.
See MTI Reply to Albuquerque at 9. Even the United States District Court for the Southern District
of New York in Floyd v. City of N.Y., a case on which Albuquerque heavily relies, agrees that
a court may not enter a consent decree that imposes obligations on a third party
outside the Agreement[;] such as an intervenor has standing to make a showing that
the decree affects the subject of collective bargaining, a contract right, or that
imposes some duty on the obligations of the intervenor to which it does not consent.
MTI Reply to Albuquerque at 9 (citing Local No. 93 v. Cleveland, 478 U.S. at 529; Bridgeport
Firebird’s Soc. v. City of Bridgeport, 686 F.3d 53, 53 (D. Conn. 1988); United States v. City of
Miami, 664 F.3d 435 (5th Cir. 1981)(en banc)(per curium). The Officers Association thus
contends that, Albuquerque presents no caselaw stating that it cannot intervene, and it therefore
has standing to intervene. See MTI Reply to Albuquerque at 10.
The Officers Association argues, in the alternative, that Judge Brack should let it intervene
permissively under rule 24(b)(1)(B). See MTI Reply to Albuquerque at 10. The Officers

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Association asserts that its intervention meets each of the four factors: (i) it will not delay or
prejudice the adjudication of the parties’ rights, because Judge Brack should focus on its
participation, which will help all the parties come to an agreement, rather than the “speed with
which this important matter is addressed”; (ii) it will add value to the process, because, without
the Officers Association’s buy-in, “the process will not work”; (iii) its interests are not adequately
represented, because the United States and Albuquerque are “antagonistic” to the Officers
Association; and (iv) the Officers Association does not have an adequate remedy available in
another action, because, although it could sue Albuquerque for breach of contract, a breach-ofcontract suit “would leave a very interesting question to a court torn between whether the CBA or
the Settlement Agreement is controlling” and would not be resolved before “irreparable”
“damage” was done to individual officers rights. MTI Reply to Albuquerque at 10-11. The
Officers Association concludes by reiterating its request for the Court to grant its Motion to
Intervene. See MTI Reply to Albuquerque at 11.
6.

The Officer Association’s MTI Reply to the United States.

The Officers Association begins its argument by stating that, to intervene as of right, it
does not need to demonstrate that the Original Settlement Agreement conflicts with the CBA. See
Reply to the United States Response to APOA’s Motion to Intervene, filed February 13, 2015
(Doc. 100)(“MTI Reply to United States”). The Officers Association notes that the United States
contest only two of the four factors under rule 24(a)(2) -- whether the Officers Association has a
protectable interest and whether that protectable interest will be impaired -- and adds its own fifth
factor -- the Officers Association may not intervene if it cannot stop the Settlement Agreement by
withholding its consent. See MTI Reply to United States at 2. It undermines the United States’
reliance on Local No. 93 v. Cleveland for this factor, by noting that the Supreme Court’s “non-bar

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rule” applies to parties, not non-parties seeking intervention. MTI Reply to United States at 2.
Moreover, the Officers Association argues, the Supreme Court in Local No. 93 v. Cleveland
concluded that a third-party union was entitled to intervene as a matter of right, make objections,
and present relevant evidence to protect its interests, even though it was unable to bar the
settlement agreement. See MTI Reply to United States at 2-3 (citing Local No. 93 v. Cleveland,
478 U.S. at 530; Bridgeport Firebird Soc. v. City of Bridgeport, 686 F. Supp at 57). The Officers
Association contends that, like the union in Local No. 93 v. Cleveland, it “has the right to ‘air its
objections’ as a party to the reasonableness of the Settlement Agreement” without demonstrating
that the Original Settlement Agreement conflicts with the CBA. MTI Reply to United States at 3
(quoting Local No. 93 v. Cleveland, 478 U.S. at 530).
The Officers Association moves to its next argument -- that it has a protectable interest in
the lawsuit. See MTI Reply to United States at 3. It notes that the Tenth Circuit takes a “‘liberal’”
approach to permitting intervention. MTI Reply to United States at 3 (quoting Utahns for Better
Transp. v. U.S. Dep’t of Transp., 295 F.3d 1111, 1115 (10th Cir. 2002), and citing Feller v. Brock,
802 F.2d 722, 729 (4th Cir. 1986)). It counters the United States’ assertion that a breach-ofcontract suit is an appropriate remedy for a the Officers Association’s contractual rights under the
CBA by noting that courts have concluded that, if a proposed remedy may impact a movant’s
contractual rights, the movant has a protectable interest in the lawsuit. See MTI Reply to United
States at 3-4 (citing W.R. Grace & Co. v. Local Union, 759, 461 U.S. at 771; B. Fernandez &
Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d at 545; Sw. Ctr. for Biological Diversity v. Berg, 268
F.3d at 820). The Officers Association further notes that it has the right “to negotiate the terms
and conditions of employment of APD officers” and “to protect those interests” under PEBA and
Labor Ordinance, and the right to rely on the CBA. MTI Reply to United States at 4 (citing United

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States v. City of L.A., 288 F.3d at 399-400; United States v. City of Hialeah, 140 F.3d at 983). It
further argues that Albuquerque does not have the right to unilaterally change the CBA’s terms.
See MTI Reply to United States at 4 (citing United States v. City of L.A., 288 F.3d at 400; W.R.
Grace & Co., 461 U.S. at 771).
The Officers Association next notes that the United States omits key context when it
excerpts City of Los Angeles to undermine the Officers Association’s reliance on the case:
“To the extent that it contains or might contain provisions that contradict terms of
the officers’ [Memorandum of Understanding (“MOU”)6], the Police League has
an interest. Further, to the extent that it is disputed whether or not the consent
decree conflicts with the [MOU], the Police League has the right to present its views
on the subject to the district court have them fully considered in conjunction with
the district court’s decision to approve the consent decree.”
MTI Reply to United States at 4-5 (quoting City of Los Angeles, 288 F.3d at 400)(alteration . The
Officers Association concludes that, according to the Ninth Circuit, the Officers Association must
show only that the Settlement Agreement and the CBA may conflict, “[o]r, regardless of any
contradictions, the district court must hear and consider the [Officers Association’s] views prior
to any approval of a Settlement Agreement.” MTI Reply to United States at 5 (citing City of Los
Angeles, 288 F.3d at 400. Thus, according to the Officers Association, the United States’ argument
that the Ninth Circuit in City of Los Angeles had concluded that the union’s interest arose out of
conflicting provisions in the settlement agreement and CBA is a misleading argument. See MTI
Reply to the United States at 5.
The Officers Association next argues that the litigation may impair its protectable interest.
See MTI Reply to United States at 5. It states that the United States proffers too high a standard,

6

The MOU appears to be a collective bargaining agreement. See United States v. City of
L.A., 288 F.3d at 396 (stating that the MOU “governs the terms and conditions under which
members of the Police League are employed by the City”).

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because it cites a “substantially-affected” standard while omitting the rest of the sentence, which
clarifies that a movant who demonstrates that it would be “‘substantially affected’” by the litigation
“should, as a general rule, be entitled to intervene.” MTI Reply to United States at 5 (quoting
Advisory committee notes to Fed. R. Civ. P. 24 (1966 amendment), and citing U.S. MTI Response
at 8). It argues that it need show under rule 24 only that the litigation “‘may as a practical matter
impair or impede [third-party’s] ability to protect its interest.’” MTI Reply to United States at 6
(quoting WildEarth Guardians v. Nat’l Park Serv., 604 F.3d 1192, 1199 (10th Cir. 2010)(emphasis
and alteration added in MTI Reply to United States). The Officers Association asserts that
litigation meets this standard, because the Settlement Agreement, which could alter the bargainedfor employment terms and conditions under the CBA despite the Labor Ordinance’s requirement
that all terms must be negotiated in good faith, may affect the Officers Association’s contractual
rights under the CBA. See MTI Reply to United States at 6.
Turning to the alleged conflicts between the Settlement Agreement and the CBA, the
Officers Association notes that its Amicus Curiae Brief lists only a “small non-exclusive”
“sample” of the conflicts, which it asserts it said in its Amicus Curiae Brief. MTI Reply to United
States at 6 (citing generally Amicus Curiae Brief). It first addresses the conflict between the
Original Settlement Agreement’s use-of-force investigation procedures and the CBA’s
disciplinary procedures. See MTI Reply to United States at 6-7. The Officers Association argues
that the Settlement Agreement’s procedures conflict with the CBA’s notice requirement, and it
attempts to undermine the United States’ counterargument by noting that the United States omitted
some of the CBA § 20.1.4, including the sentences stating: “‘Prior to any administrative
interrogation being conducted sufficient information shall be disclosed to reasonably apprise the
officer of the allegations. This information will be provided to the target officer[s] in writing via

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Certified U.S. mail.’” MTI Reply to United States at 7 (quoting CBA § 20.1.4, at 29). The Officers
Association notes that the mail requirement provides the officer the “opportunity to fully
understand the purpose of the investigation and adequately prepare” and that an immediate on
scene interrogation does not fulfill the mail requirement. MTI Reply to United States at 7. The
Officers Association argues that, by stating that use-of-force investigations usually are not
administrative investigations, the United States acknowledges that some use-of-force
investigations will be administrative investigations, and thus, those investigations must be
conducted according to CBA procedures. See MTI Reply to United States at 7-8. The Officers
Association adds that, even if the Original Settlement Agreement does not forbid a representative
from attending the involved officer’s on-scene interview, the Original Settlement Agreement does
not provide a procedure for when a representative is unavailable. See MTI Reply to United States
at 8. The Officers Association concludes that the Original Settlement Agreement’s on-scene
interviews “cannot be conducted properly under this current CBA” and do not adequately protect
officers’ rights. MTI Reply to United States at 8.
The Officers Association turns to another conflict -- the Internal Affairs Unit’s jurisdiction
over criminal investigations in violation of the mandate of CBA § 20.1.8 that “criminal
investigations ‘shall not be handled by the Internal Affair’s Unit.’” MTI Reply to United States at
8 (quoting CBA § 20.1.8, at 29-30). The Officers Association states that “[t]here could not be a
clearer contradiction between the CBA and the Settlement Agreement.” MTI Reply to United
States at 8-9. The Officers Association asserts that the United States’ argument that these terms
are consistent, because the Original Settlement Agreement provides protections to officers, and
because the Internal Affairs Unit will keep the criminal and administrative investigations cabined,
do not resolve the contradiction. See MTI Reply to United States at 8-9. The Officers Association

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concludes that the United States may not “impede on the [Officers Association’s] contractual rights
by merely offering ‘protections.’” MTI Reply to United States at 9.
The Officers Association turns to the next conflict -- the Settlement Agreement’s creation
of the Force Review Board, the early intervention system, the disciplinary matrix, crisis
intervention training, and the on-body recording systems without the Officers Association’s
consent.

See MTI Reply to United States at 9. The Officers Association argues that these

“disciplinary protocols” “are mandatory subjects of collective bargaining” and that, thus, the
Officers Association “has a right to protect its interests in these sorts of program that are going to
affect working conditions” MTI Reply to United States at 9 (citing Labor Ordinance § 3-2-7).
The Officers Association concludes that, even though it does not have to prove that the Settlement
Agreement and the CBA conflict, “[t]here is, at a very minimum, at least a possibility that the
[Officers Association’s] interest may be impaired,” and so Judge Brack should grant it intervention
as a matter of right. MTI Reply to United States at 9.
The Officers Association switches to a new argument -- that its amicus curiae status is
insufficient to protect its interests. See MTI Reply to United States at 10. It argues that the United
States takes Local No. 93 v. Cleveland out of context to argue that the Officers Association has
received due process, because the police union in that case “was given the opportunity to intervene,
to present evidence, and to discuss its objections as a party in front of the court.” MTI Reply to
United States at 10 (citing Local No. 93 v. Cleveland, 478 U.S. at 529; U.S. MTI Response at 22).
In contrast, the Officers Association asserts, it has been given the opportunity to submit only an
amicus brief, which is insufficient to protect its interest. See MTI Reply to United States at 10
(citing Coal. of Ariz./N.M. Ctys. v. Dep’t of Interior, 100 F.3d at 844 (“The right to file a brief as
amicus curiae is no substitute for the right to intervene.”)). The Officers Association concludes

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that intervention is necessary to protect its interests. See MTI Reply to United States at 10.
The Officers Association makes an alternative argument -- that Judge Brack should allow
it to intervene permissively under rule 24(b)(1)(B). See MTI Reply to United States at 10-11. It
argues that it meets the threshold requirement of having a defense or claim of common questions
of law or fact, because it “has an interest in defending its members from allegations of police
misconduct.” MTI Reply to United States at 11. Turning to the first factor, the Officers
Association argues that its intervention would not cause undue delay or prejudice, because its
intervention “would aid the current parties [with the] APOA member’s perspectives.” MTI Reply
to United States at 11 (citing Arney v. Finney, 967 F.3d 418, 421-22 (10th Cir. 1992)). Turning
to the third factor,7 the Officers Association asserts that the existing parties do not adequately
represent the Officers Association’s interest, because Albuquerque is “antagonistic” to it “in the
collective bargaining process,” and because Albuquerque has a “substantial[ly] different position[]
on the Settlement Agreement” than the Officers Association has. MTI Reply to United States at
11. Turning to the fourth factor, the Officers Association argues that there is no other adequate
remedy available, because, even if the Officers Association sued for breach of contract, the
Original Settlement Agreement would impair its contractual right under the CBA, “and it would
leave a very interesting question to a court on whether the CBA or the Settlement Agreement is
controlling.” MTI Reply to United States at 11. The Officers Association concludes that Judge
Brack should permit it to intervene. See MTI Reply to United States at 11.

7

The Officers Association does not address the second factor -- whether its “input adds
value to the existing litigation.” MTI Reply to United States at 11 (citing Lower Ark. Valley Water
Conservancy Dist. v. United States, 252 F.R.D. 687, 609-91 (D. Colo. 2008)(Nottingham, J.).

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7.

MTI MOO.
On February 19, 2015, Judge Brack granted MTI as a matter of right in the litigation

between the United States and Albuquerque. See MTI MOO at 13 (Brack, J.). Judge Brack
granted the Officers Association’s MTI as to the litigation’s “remedial” phase. MTI MOO at 4
(Brack, J.). Judge Brack deferred ruling, however, on the litigation’s “liability” phase. MTI MOO
at 4 (Brack, J.)(citing San Juan Cty. v. United States, 503 F.3d at 1189).
Judge Brack considered the Officers Association’s MTI in the action as a matter of right
under rule 24(a). See MTI MOO at 4 (Brack, J.)(citing MTI). Judge Brack notes both the United
States and Albuquerque agreed that the MTI’s timeliness and the existing parties’ inadequacy of
representing the Officers Association’s interest rule 24’s first and fourth prongs. MTI MOO at 4
(Brack, J.)(citing Fed. R. Civ. P. 24(a); Coal. of Ariz./N.M. Ctys. v. Dep’t of Interior, 100 F.3d at
840. Both the United States and Albuquerque contested the second and third prongs, which require
that “(2) the intervenor claims an interest relating to the property or transaction at issue in the
litigation; [and] (3) the intervenor’s interest may as a practical matter be impaired or impeded.”
MTI MOO at 4 (quoting Coal. of Ariz./N.M. Ctys. v. Dep’t of Interior, 100 F.3d at 840).
After stating that the Tenth Circuit conflated those two prongs as the “impaired-interest
requirement,”8 Judge Brack first analyzed the Officers Association’s interest under the second
prong, see MTI MOO at 5 (Brack, J.)(quoting San Juan Cty. v. United States, 503 F.3d at 1190).
In reviewing the Tenth Circuit caselaw on this point, Judge Brack reasoned that the “minimal”
burden of showing an interest must be “adversely affected by the litigation” stems from the

8

As discussed supra in its Law Regarding section, the Court concludes that the Tenth
Circuit analysis includes both whether there is a protected interest and whether that case’s
disposition will impair that protected interest.

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pragmatic need to “involve[e] as many apparently concerned persons as is compatible with
efficiency and due process.” MTI MOO at 5 (Brack, J.)(quoting Utah Ass’n of Ctys v. Clinton,
255 F.3d 1246, 1253 (10th Cir. 2001); San Juan Cty. v. United States, 503 F.3d at 1199; Coal. of
Ariz./N.M. Ctys. v. Dep’t of Interior, 100 F.3d at 841).
Judge Brack rejected Albuquerque’s argument that the Officers Association has no interest
in this litigation, criticizing Albuquerque’s reliance on Floyd v. New York “for the proposition
that the union has no significant protectable interest,” because the untimeliness and substantive
inadequacy of the union’s motions affected the court’s decision. MTI MOO at 5 (Brack, J.)(citing
302 F.R.D. 69 at 84, 100, 104, 109, 112). Here, Judge Brack concluded that there is a “sufficient
interest” on the Officers Association’s part, because, even though individual officers are not named
in the Complaint, the Complaint effectively seeks an injunction against the “the police officers that
the City employs.” MTI MOO at 6 (Brack, J.)(citing Complaint ¶ 28(b)-(c), at 7). Judge Brack
concluded that, because the Officers Association is the long-standing “exclusive bargaining
representative” of the police officers, and because an injunction could potentially impair those
officers’ interests, he should permit the Officers Association to intervene. MTI MOO at 6
(Brack, J.)(citing MTI at 1; PEBA; Labor Ordinance, Albuquerque, N.M., Amended Code of
Ordinances § 3-2-1). Judge Brack stated that the Officers Association has an interest in protecting
its CBA with Albuquerque, and that PEBA and Labor Ordinance statutorily protect the CBA. See
MTI MOO at 6 (Brack, J.)(citing PEBA § 10-7E-15; Labor Ordinance §§ 3-2-4 and -7).
Judge Brack next analyzed rule 24’s impairment prong, agreeing with the Officers
Association that, in addition to contradicting the CBA’s terms, “a proposed decree” could impair
the Officers Association’s right to negotiate the “terms and conditions of its members’
employment.” MTI MOO at 7 (Brack, J.). Judge Brack reasoned that the United States’ and

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Albuquerque’s attempts to read the Original Settlement Agreement consistently with the CBA -and to persuade the court there is no conflict between the Original Settlement Agreement and the
CBA -- belied their recognition that the Original Settlement Agreement could and does conflict
with the CBA. See MTI MOO at 7 (Brack, J.). Nevertheless, Judge Brack focused on the potential
for conflict and not on the existence of an actual conflict. See MTI MOO at 7 (Brack, J.). He cited
an Original Settlement Agreement provision that allows the parties to “jointly modify” it or
“implement alternative provisions at any time,” concluding that this “may as a practical matter
impair or impede the [] ability to protect its members’ interests.” MTI MOO at 8 (Brack, J.)(citing
Original Settlement Agreement ¶ 338, at 102, and quoting Utahns for Better Transp. v. U.S. Dep’t
of Transp., 295 F.3d at 1116 (emphasis added)).
Judge Brack next addressed Albuquerque’s argument that the Officers Association’s CBA
interest will not be legally impaired, because any consent decree can be implemented under the
CBA’s management-rights provision. See MTI MOO at 8 (citing Albuquerque MTI Response
at 7-8). Judge Brack distinguished the case from the case on which Albuquerque relies -- Johnson
v. Lodge No. 93, 393 F.3d at 1100-01 -- because “the applicable law is so different for the two
phases of litigation.” MTI MOO at 8 (Brack, J.). In Johnson v. Lodge No. 93, the United States
Court of Appeals for the Tenth Circuit denied the union’s attempts to block the consent decree
between the two original parties and analyzed the legal conflicts at that stage of the litigation. 393
F.3d at 1100-01. Because in this case the litigation is at a different stage -- the “motion to intervene
stage” -- Judge Brack stated that Johnson v. Lodge No. 93 is unhelpful: “The issue at the motion
to intervene stage is the practical effect of a judgment . . . not the legally compelled effect.” MTI
MOO at 8 (Brack, J.)(quoting San Juan Cty. v. United States, 503 F.3d at 1200)(emphases in San
Juan Cty. v. United States). Judge Brack, thus, concluded that he should apply New Mexico law

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“when the time comes to examine actual conflict,” just as the Tenth Circuit in Johnson v. Lodge
No. 93 applied Oklahoma law to determine “whether the decree, the union’s CBA rights, the
union’s statutory rights, and the City’s management functions . . . created a conflict.” MTI MOO
at 8 (Brack, J.)(citing 393 F.3d at 1102).
Judge Brack rejected the United States and Albuquerque’s arguments that he should deny
the Officers Association’s MTI on the grounds that the CBA is set to expire in 2015, because
Albuquerque is not able to “unilaterally impose conditions of employment once a CBA has
expired.” MTI MOO at 9 (Brack, J.)(quoting Am. Fed. of State v. City of Albuquerque, 304 P.3d
443). Given the time taken to negotiate the current CBA, Judge Brack speculated that the current
CBA may be in effect “for the entire duration of the consent decree.” MTI MOO at 9 (Brack, J.).
He also rejected Albuquerque’s suggestion that the Officers Association seek damages in state
court if the settlement agreement violates the CBA; such an approach, Judge Brack concludes,
would lead to inefficiency and “conflicting interpretations of the consent decree’s meaning.” MTI
MOO at 9 (Brack, J.).
Judge Brack concluded that the Officers Association has met rule 24(a)’s requirements and
granted its motion to intervene as a matter of right, but stressed that “[g]ranting intervention does
not mean the Union has the power to veto the proposed [Settlement] Agreement.” MTI MOO at
9 (Brack, J.). Judge Brack then addressed Albuquerque’s alternative argument that, even if the
Officers Association meets the requirement of rule 24(a), it has no Article III standing. See MTI
MOO at 10 (Brack, J.). Judge Brack stated that, under Tenth Circuit caselaw, an intervenor need
not have standing “so long as there was Article III standing for the original party on the same side
of the litigation as the intervenor.” MTI MOO at 10 (Brack, J.)(quoting San Juan Cty. v. United
States, 503 F.3d at 1171). Judge Brack stated that, now that the Officers Association can intervene

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as a party, he “orders the Union to state its formal objections on the record, as a party to the case”
and urges it to “analyze the issues, and in particular the CBA, under New Mexico law and, when
appropriate, the National Labor Relations Act.” MTI MOO at 10 (Brack, J.)(citing Regents of
Univ. of N.M. v. N.M. Fed’n of Teachers, 962 P.2d 1236, 1243 (N.M. 1998)).
8.

The Objection.

The Officers Association filed its Objection after learning that APD planned to start useof-force training for its force investigators. Objection at 1. It objects to one provision in the “Use
of Force -- Review and Investigation by the Department” Standing Operating Procedure (“SOP”)
§ 2-57, which states: “‘Supervisors and FIS detectives shall consider the facts that a reasonable
officer on the scene would have known at the time the officer used force.’” Objection at 5 (quoting
Albuquerque Police Department Procedural Orders- Use of Force, filed May 28, 2019 (Doc.
447-1).
First, the Officers Association takes issue with the provision itself. See Objection at 5.
The Officers Association argues that the provision promotes a subjective review, in contrast to the
other policies’ objective reviews. See Objection at 5. The Officers Association describes the
provision as “vague” and “undefined.” Objection at 5. The Officers Association argues that the
provision ignores the officer’s “neuropsychology”9 in a use-of-force situation. See Objection at 5.
The Officers Association concludes that the provision’s “application would disrupt principles of

9

Although the motion uses the word “neuropsychology,” neuropsychology refers only to
the study of a specific psychology field, “how the brain and the rest of the nervous system influence
a person’s cognition and behaviors.” What is Neuropsychology?, Careers in Psychology,
https://careersinpsychology.org/becoming-a-neuropsychologist/
(last
visited
June 12,
2020)(“Neuropsychology Description”). Neuropsychology has a particular emphasis on the
effects of injury and illness on the brain’s functioning. See Neuropsychology Description. The
Court assumes that the Officers Association uses neuropsychology as a synonym for “state of
mind” and reads the Motion accordingly.

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due process, obscure disciplinary standards and devolve use of force training and its application
into utter confusion.” Objection at 6.
The Officers Association then elaborates on the provision’s application, characterizing the
application as problematic. See Objection at 6. First, the Officers Association contends, it would
be difficult to train personnel to determine “what an officer would have known,” and there is a
lack of published lesson plans about this topic. Objection at 6 (quoting SOP § 2-57). Next, the
Officers Association argues that, because APD is not a homogenous entity with a single reviewing
body, “the majority of reviewing supervisors will consistently have differing needs in correcting
perceived deficiencies.” Objection at 6. Further, the Officers Association argues, that application
of this provision will result in more information-gathering at the investigative stage, which will
“expose[] investigators to discipline.” Objection at 6. The Officers Association concludes that,
read in context, the provision will cause “personal views [to] arbitrarily infect the established
standard of review.” Objection at 7.
The Officers Association also objects that the “would have known” standard “contravenes
the stated goals for the First Amended [Settlement Agreement], ignores existing law, and artfully
avoids the bedrock constitutional principle of ‘objectively reasonable.’” Objection at 7-8 (italics
in original). The Officers Association contends that it agreed to approve SOPs §§ 2-52 to 2-56,
because Albuquerque agreed that SOP 2-57 would conform to the objectively reasonable standard.
See Objection at 7. The Officers Association argues that it does not consent to modify First
Amended Settlement Agreement’s definition of “reasonable force” nor does it consent to modify
the standard used to judge reasonable force. Objection at 7. The Officers Association next argues
that, because “would have known” is in conditional perfect tense, the language encourages “logical
equivalences, which in turn necessarily relies on ‘what if’ explorations” in contravention of the

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Supreme Court’s guidance in Graham v. Connor, 490 U.S. 386 (1989), guidance to avoid if-then
statements. Objection at 7.
Without citation, the Officers Association argues that a “use of force policy must be
constitutional, predictable, teachable and consistent,” and that this use-of-force policy does not
meet any of those criteria. Objection at 8 (italics in original). It argues that the Court should not
allow Albuquerque to substitute its own use-of-force standard instead of the Graham v. Connor
standard. See Objection at 8. The Officers Association notes that the provision does not give any
guidance as to the inquiry’s scope, nor does it give any examples of what an officer “would have
known.” Objection at 8.
Turning to its next argument, the Officers Association says that “even assuming that the
[provision] is derived from ‘qualified immunity’ analysis, the clearly established” benchmark
governs that test. Objection at 9. To support this argument, the Officers Association cites a Tenth
Circuit case that states: “‘[A]n officer’s violation of the Graham reasonableness test is a violation
of clearly established law if there are no substantial grounds for a reasonable officer to conclude
that there was no legitimate justification for acting as she did.’” Objection at 9 (quoting Buck v.
City of Albuquerque, 549 F.3d 1269, 1291 (10th Cir. 2008)(quoting Casey v. City of Fed. Heights,
509 F.3d at 1286)(internal quotations omitted in Objection)(bold in Objection only)). The Officers
Association argues that, in contrast, the would-have-known provision encourages speculation. See
Objection at 9. The Officers Association then summarizes its arguments, concluding with a
statement that the Graham v. Connor standard is “a ‘best practice’ approach in training,
investigating and enforcing use of force standards.” Objection at 10.

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9.

The United States Objection Response.
The United States responds. See United States’ Response to Intervenor’s Notice of

Objection to Albuquerque Police Department’s Use of Force Policy (Doc. 447), filed July 15, 2019
(Doc. 461)(“United States Objection Response”). The United States first rebuts the Officers
Association’s Objection by stating that SOP 2-57 is consistent with Tenth Circuit caselaw and with
the Constitution’s standards. See United States Objection Response at 3. Countering the Officers
Association’s assertion that the would-have-known standard is inconsistent with Graham v.
Connor, the United States notes that Albuquerque’s language is the same as the language that the
Tenth Circuit uses when it applies Graham v. Connor to a use-of-force case. See United States
Objection Response at 4 (citing Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008)). In Weigel v.
Broad, “the Tenth Circuit discussed Graham’s admonition that a use of force’s reasonableness
‘must be judged from the perspective of a reasonable officer on the scene’” and concluded “‘that
a reasonable officer would have known that the pressure placed on Mr. Weigel’s upper back as he
lay on his stomach create a significant risk of asphyxiation and death.’” United States Objection
Response at 4 (quoting Weigel v. Broad, 544 F.3d at 1152-1153)(emphasis in United States
Objection Response)). APD, thus, includes the “would have known” language, because the Tenth
Circuit binds APD. United States Objection Response at 5. The United States counters the
Officers Association’s assertion that the language contravenes Graham v. Connor by emphasizing
that Weigel v. Broad applies Graham v. Connor. See United States Objection Response at 5.
In two footnotes, the United States contextualizes the Officers Association’s argument.
See United States Objection Response at 4 n.4; id. at 5 n.5. The United States notes that Officers
Association is included on an email among the United States, Albuquerque, the Officers
Association, and the Monitor, in which they discussed Tenth Circuit caselaw regarding the Graham

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v. Connor standard, including Weigel v. Broad. See United States Objection Response at 4 n.4
(citing Email from United States to the City of Albuquerque, the Officers Association, and the
Monitor at 1-2 (dated January 31, 2019), filed July 15, 2019(Doc. 461-1)(“Jan. 31 Email”))).
Moreover, the United States argues, the Officers Association agreed to the “would have known”
language in the same email chain. See United States Objection Response at 4 n.4 (citing Jan. 31
Email at 1 (“However, as clarification, the Officers Association accepts the language ‘knew or
would have known.’”)). The United States concludes that Officers Association’s Objection is
irreconcilable with its earlier acceptance and its knowledge of caselaw. See United States
Objection Response at 5.
The United States argues that the Officers Association’s proposed modification from
“would have known” to “facts known” changes the inquiry from an objective inquiry to a
subjective inquiry in contravention of Graham v. Connor. United States Objection Response at 5
(citing Graham v. Connor, 490 U.S. at 397 (describing the reasonableness inquiry as “an objective
one”)). The United States notes that the Officers Association’s proposed standard could result in
Constitutional violations, because it would sanction uses of force that violate the Constitution, as
long as the officer, whether reasonably or unreasonably, did not “grasp facts that made the force
unlawful.” United States Objection Response at 5. The United States then asks the Court to
overrule the Officers Association’s Objection. See United States Objection Response at 5.
The United States then argues that the Officers Association’s Objection is untimely. See
United States Objection Response at 6. The United States notes that Judge Brack ordered the
parties to file any Objections by January 31, 2019. See United States Objection Response at 6
(citing Order Granting City of Albuquerque’s Unopposed Motion for Extension of Deadlines Set
Forth in the Court’s June 6, 2018 Order, filed November 5, 2018 (Doc. 417)(Brack, J.)(“Deadlines

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Order”)). The United States argues that, because Officers Association did not file its objection
until May 28, 2019 -- 117 days after the deadline -- the Court should overrule the Objection. See
United States Objection Response at 6. Moreover, the United States argues, the United States,
Albuquerque, and Dr. Ginger have invested resources predicated on this policy, and new policy
changes would prejudice them, which, the United States contends, are other reasons to overrule
the Objection. See United States Objection Response at 6.
10.

Albuquerque Objection Response.

Albuquerque responds. See Albuquerque Objection Response at 1.

Albuquerque

summarizes its three arguments: (i) the Officers Association does not properly raise its Objection;
(ii) Albuquerque may enact policies that are more stringent than “the minimal constitutional floor
set forth in Graham v Connor”; and (iii) the “would have known” language comports with the law.
Albuquerque Objection Response at 1.

Albuquerque begins with its first argument.

See

Albuquerque Objection Response at 8.
Albuquerque argues that Officers Association’s Objection is improperly raised, because (i)
neither the CBA nor any court order authorizes the Officers Association to file an Objection; and
(ii) the Officers Association files the Objection in an untimely manner. See Albuquerque
Objection Response at 8-9. Albuquerque argues that, although Judge Brack granted the Officers
Association intervenor status, the Officers Association does not have the right to develop and
implement policies. See Albuquerque Objection Response at 9. The Officers Association consents
to the CBA, which gives Albuquerque the right to develop and implement policies, and states that
“‘employees shall be bound by and obey such directives, rules, and regulations insofar as the same
do not conflict with the agreement.’” Albuquerque Objection Response at 9 (quoting CBA §§ 32.1
and 32.2). The CBA also incorporates an Albuquerque ordinance that “reserves certain powers to

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the Mayor and the Mayor’s administrative staff, including the powers to ‘direct the work of its
employees’ and to ‘manage and exercise judgement on all matters not specifically prohibited by
this article or by a collective bargaining agreement.’” Albuquerque Objection Response at 9
(quoting Revised Ordinances of Albuquerque, New Mexico § 3-2-5(A), (G); and citing CBA
§ 2.4)). Albuquerque concludes that the CBA and Revised Ordinances of Albuquerque, New
Mexico § 3-2-5(A), (G) reserve power to enact use-of-force policies and use-of-force investigation
policies for APD’s administrative staff and for Albuquerque.

See Albuquerque Objection

Response at 9.
Albuquerque argues that the First Amended Settlement Agreement does not grant the
Officers Association the right to object to a policy -- the First Amended Settlement Agreement
grants the right to object to the Dr. Ginger’s resolutions of policy disputes only to Albuquerque
and to the DOJ. See Albuquerque Objection Response at 10. Albuquerque argues that, if the
Court construes the First Amended Settlement Agreement as permitting Officers Association to
object, the Court would be expanding the Officers Association’s rights “beyond that allowed by
the CBA, federal, state, and local law, and the Court’s Memorandum Opinion and Order granting
the Officers Association intervenor status.” Albuquerque Objection Response at 10 (citing MTI
MOO (Brack, J.).; Johnson v. Lodge No. 93, 393 F.3d at 1102 (evaluating a union-intervenor’
objections to determine whether the use-of-force consent decree was in conflict with a CBA)).
Moreover, the Officers Association has an alternate route to resolve complaints: Albuquerque’s
Labor-Management Board.

See Albuquerque Objection Response at 10 (citing Revised

Ordinances of Albuquerque, New Mexico § 3-2-15).

Albuquerque continues that Officers

Association’s failure “to do so with regard to this policy demonstrates that the Officers Association

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acknowledges that the CBA does not allow the relief the Officers Association now seeks.”
Albuquerque Objection Response at 10.
Albuquerque turns to its timeliness argument. See Albuquerque Objection Response at 11.
Albuquerque argues that, if the Court permits the Officers Association to raise its Objection, the
Court should overrule the Objection, because the Officers Association did not file the Objection
in a timely manner. See Albuquerque Objection Response at 11. Albuquerque notes that, although
the entities were discussing policies through January 31, 2019, which is the Objections deadline,
the Officers Association had a responsibility to motion the Court to extend the deadline. See
Albuquerque Objection Response at 11. Albuquerque argues that, although the First Amended
Settlement Agreement does not provide a time limit for filing Objections, the Officers Association
does not have good cause for filing its Objection nearly four months after the deadline. See
Albuquerque Objection Response at 11. Albuquerque emphasizes that this delay prejudices
Albuquerque, which is adhering to the First Amended Settlement Agreement’s requirement to
create training programs on the policies.

See Albuquerque Objection Response at 11.

Albuquerque notes that the Officers Association knows that Albuquerque is expending time and
resources developing training programs. See Albuquerque Objection Response at 11-12 (citing
Deadlines Order). Albuquerque argues that, moreover, any delay will result in more months of
monitoring, which will come at a cost to Albuquerque. See Albuquerque Objection Response at
11.
Albuquerque then argues that APD “Can and Must” adopt a more limiting standard than
the constitutional floor. Albuquerque Objection Response at 12 (emphasis and capitalization in
original)(citing Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1255 (10th Cir.
2008); Smith v. Freland, 954 F.2d 343 347 (6th Cir. 1992); In the Matter of Jonathan Franco,

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PB-17-02, 10-11 (Albuquerque Personnel Board, September 13, 2017), filed July 15, 2019 (Doc.
462-6)).

Albuquerque emphasizes that APD’s standard benefits both the officers and

Albuquerque, because “the higher standard creates a protective space between permitted officer
conduct and officer and municipal liability for constitutional violations.” Albuquerque Objection
Response at 13 (citing Police Executive Research Forum, PERFS 30 Guiding Principles on the
Use of Force at 35, available at https://www.policeforum.org/assets/30%20guiding%20
principles.pdf (last visited February 5, 2020)(“PERFS 30 Guiding Principles”)). Albuquerque
notes that the First Amended Settlement Agreement limits the use of force in several ways, all of
which are more restrictive than the constitutional floor. See Albuquerque Objection Response at
13 (citing Errata Settlement Agreement ¶¶ 14(a), 14(c), 15, 22, 27, 28, at 15-18, filed March 9,
2018 (Doc. 356-1)). Albuquerque argues that, in contrast to its Objection regarding SOP § 2-57,
the Officers Association “does not object to provisions throughout the use of force suite of policies
that limits the use of force by officers beyond that allowed by Graham’s standard, which is telling.”
Albuquerque Objection Response at 14. Moreover, Albuquerque notes, the Officers Association
does not object to SOP § 2-57-2, which states that: “[A]ny review or investigation of use of force
incidents shall consider that officers must at all times comply with the even stricter standards as
set forth in Department Policy.” Albuquerque Objection Response at 13 (quoting SOP § 2-57 at
2, filed June 20, 2019 (Doc. 458-6)(alteration in Albuquerque Objection Response). Albuquerque
argues that the Officers Association does not object to that language, because it is “well accepted”
that employers can implement a more stringent standard for its employees than the constitutional
floor. Albuquerque Objection Response at 13-14 (citing Couture v. Bd. of Educ. of Albuquerque
Pub. Sch., 535 F.3d 1243, 1255 (10th Cir. 2008)). Albuquerque concludes that Albuquerque and

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APD can adopt higher standards than the Graham v. O’Connor and the constitutional floor. See
Albuquerque Objection Response at 13-14.
Albuquerque then argues that the would-have-known standard is objective and clear. First,
Albuquerque details Tenth Circuit cases that evaluate a law enforcement officer’s reasonableness
under a would-have-known standard. See Albuquerque Objection Response at 15 (citing Weigel
v. Broad, 544 F.3d at 1153; Tenorio v. Pitzer, 802 F.3d 1160, 1166 (10th Cir. 2015)(citing Zuchel
v. City & Cty. of Denver, 997 F.2d 730 (10th Cir. 1993)). These cases demonstrate, Albuquerque
argues, that the standard is not vague, that law enforcement officers can be trained in this standard,
and that this objective test “can be readily applied to measure officer conduct.” Albuquerque
Objection Response at 16.
Albuquerque undermines the Officers Association’s test by describing it as “Undefined
and Subjective.” Albuquerque Objection Response at 16 (emphasis and capitalization in original).
Albuquerque counters the Officers Association’s assertion that the standard should consider “‘the
neuropsychology of one who is involved in a use of force,’” because considering the officer’s
thoughts renders the test subjective. Albuquerque Objection Response at 16 (quoting Objections
to APD SOP § 2-57 at 5-6, filed May 28, 2019 (Doc. 447))(alteration added)). Moreover,
according to Albuquerque, SOP § 2-57-2 already directs investigation detectives to “objectively
consider the totality of the circumstances,” including circumstances that would affect a reasonable
officer’s neuropsychology. Albuquerque next argues that, when the Officers Association states
that every one of its “‘area command[s] has its own personality,’” and, thus, its own needs, the
Officers Association is proposing that “each area command should apply its own undefined
standards” instead of “a uniform, objective, officer on-scene standard.” Albuquerque Objection
Response at 17 (quoting Objections to APD SOP § 2-57 at 6 (alteration added)). Albuquerque

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concludes that the Officers Association’s proposition would result in varying, potentially
conflicting, standards. See Albuquerque Objection Response at 17.
11.

The Objection Reply.

The Officers Association replies. See Intervenor’s Reply to the Department of Justice and
the City of Albuquerque of Albuquerque Responses to its Objection to Use of Force Policy
(§ 2-57-2, Standing Operating Procedure), filed August 2, 2019 (Doc. 470)(“Objection Reply”).
The Officers Association begins with Albuquerque’s argument that, according to Settlement
Agreement and the “policy development” process, Officers Association is not permitted “to
comment on, or object to, a proposed policy after it progresses from the PPRB to the Monitor and
DOJ.” Objection Reply at 5 (citing Errata Settlement Agreement at ¶¶ 147-48, at 55). The Officers
Association states that this limitation restricts its right to seek remedies in court. See Objection
Reply at 5. The Officers Association notes that it has never directed or encouraged its members
to take any action that conflicts with the CBA. See Objection Reply at 5. The Officers Association
argues that, despite Albuquerque’s contention that the First Amended Settlement Agreement
neither requires the Officers Association to approve a policy or procedure nor authorizes the
Officers Association to object to a policy or procedure, the First Amended Settlement Agreement
does not restrict the Officers Association’s ability to seek redress from the Court. See Objection
Reply at 5.

The Officers Association notes that Judge Brack granted the Officers Association

intervenor status after the parties filed the Settlement Agreement and that the parties did not give
the Officers Association “a meaningful participation in the pre-filing discussions, negotiations
and drafting of the Settlement Agreement.” Objection Reply at 5.
The Officers Association then discusses Judge Brack’s MTI MOO. See Objection Reply
at 6. The Officers Association notes that Judge Brack elected not to qualify the Officers

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Association’s status in his MOO and granted the Officers Association status as a party intervenor
“without reservation.” Objection Reply at 6. The Officers Association argues that, because Judge
Brack did not restrict its status, it is “entitled to litigate fully any issue on the merits as an
intervenor.” Objection Reply at 6.
The Officers Association then argues that administrative proceedings and PERFS 30
Guiding Principles are inapplicable to the use-of-force investigations. See Objection Reply at 6.
The Officers Association undermines Albuquerque’s reliance on an administrative proceeding, In
the Matter of Jonathan Franco, by arguing that a use-of-force “investigation” was not at issue in
the proceeding, and thus, the proceeding does not support Albuquerque’s argument. Objection
Reply at 6-7 (emphasis in Objection Reply). The Officers Association notes that Albuquerque
relies on the administrative matter to demonstrate that it has the authority to adopt more stringent
standards than the constitutional floor. See Objection Reply at 7. It argues that, although
reasonable force “may still violate a policy requiring the ‘minimum amount of force necessary,’”
“reasonableness must first be judged under the Graham standard.” See Objection Reply at 7.
The Officers Association then counters Albuquerque’s assertion that amending the policies
would delay training programs. See Objection Reply at 7-8. The Officers Association argues that
it is asking only for two additional words or one amended sentence, and that such changes “should
not cause the entire training module to be modified in any way, as none of the remaining policies
are affected.” Objection Reply at 8. The Officers Association notes that its proposed changes
would not delay Albuquerque from starting the use-of-force training in all other areas. See
Objection Reply at 8. The Officers Association argues that the United States and Albuquerque
draw the conclusion that the delay will prejudice them on the false premise that the training
programs do not use the Graham v. Connor standard. See Objection Reply at 8.

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The Officers Association then discusses the Graham v. Connor standard in the context of
use-of-force investigations, describing the standard as “significan[t].” Objection Reply at 8. In
contrast, the Officers Association argues, APD has adopted an “unclear” and “subjective” standard
in use-of-force investigations that “has diluted the significance of the Graham v. Connor standard.”
Objection Reply at 8. The Officers Association argues that “this Court’s § 1983 and Fourth
Amendment jurisprudence” has deferred to the officer’s safety and to “‘split-second
judgments -- in circumstances that are tense, uncertain, and rapidly evolving.’” Objection Reply
at 8 (quoting Graham v. Connor, 490 U.S. 386). The Officers Association argues that the United
States and Albuquerque are implementing a standard that does not consider the totality of the
circumstances at public safety’s expense. See Objection Reply at 8.
The Officers Association argues that, even if the Court permits the would-have-known
standard, SOP § 2-57-2 still does not have any “clearly established” language. Objection Reply at
8. The Officers Association asserts that this lack of limiting language encourages use-of-force
investigators to conduct a subjective review of the facts. See Objection Reply at 8. The Officers
Association notes that, in the context of qualified immunity, the Tenth Circuit reviews both “what
a reasonable officer would have known or could have known,” and whether what a reasonable
officer could have known is clearly established. Objection Reply at 8 (citing Weigel v. Broad, 544
F.3d at 1153). The Officers Association reiterates that an officer’s reasonableness “is considered
from the officer’s standpoint.” Objection Reply at 8. In contrast to investigators considering the
totality of circumstances from the officer’s viewpoint, the Officers Association argues, SOP
§ 2-57-2 “allows an investigator to impute facts into the officer’s mental processes, facts unknown
to the officer on-scene at the time force was used.” Objection Reply at 9. The Officers Association
concludes that this standard will result in inconsistent outcomes and “imprecise” training

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programs, and “the ‘Monday morning quarterback’ approach this Court cautioned against in James
v. Chavez.” Objection Reply at 9 (citing James v. Chavez, No. CIV 09-0540, 2011 WL, at * 17
(D.N.M. November 9, 2011)(Browning, J)).
12.

The August 13, 2019 Hearing.

The Court held a hearing on August 13, 2019. See Transcript of Proceedings at 1 (taken
August 13, 2019), filed September 4, 2019 (Doc. 481)(“Aug. 13 Tr.”). Albuquerque clarified that,
for the exhibits, the Court should rely on the Intervenor’s Second Errata, filed June 20, 2019 (Doc.
458). See Aug. 13 Tr. at 6:24-7:3 (Court, D’Amato). Albuquerque offered its first exhibit -- a
January, 21, email from Dr. Ginger, detailing his proposed changes to the Officers Association’s
draft --which the Court labeled as Albuquerque’s Hearing Exhibit A. See Aug. 13 Tr. at 8:17-25
(Van Meter, Court). Albuquerque offered its second exhibit -- Hearing Exhibit B -- which is a
January 25, e-mail from Ms. Martinez to the parties asking to discuss their input the following
week. See Aug. 13 Tr. at 9:7-12 (Van Meter). Albuquerque offered its third exhibit -- Hearing
Exhibit C -- which is Dr. Ginger’s proposed resolution draft, attached to a January 25, email from
Ms. Martinez. See Aug. 13 Tr. at 9:20-24 (Van Meter). Albuquerque then noted that Officers
Association’s Exhibit 7 is submitted as the approved Policy and Procedure Review Board
(“PPRB”) draft, but that Exhibit 7 is not the approved PPRB draft but § 2-52’s current draft. See
Aug. 13 Tr. at 10:4-18 (Van Meter, Court). Albuquerque offered the approved PPRB draft as its
Exhibit D. See Aug. 13 Tr. at 10:3-12 (Van Meter, Court).
The Court asked the Officers Association to address the timeliness of its objection. See
Aug. 13 Tr. at 11:1-4 (Court). After the Officers Association acknowledged it filed its Objection
four months after the resolution draft, the Officers Association explained that there was internal
conflict within the Officers Association regarding whether to file an objection and what objection

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to file. See Aug. 13 Tr. at 11:13-16 (D’Amato). The Officers Association elaborated on the
internal conflicts, stating that some Officers Association members initially thought that they should
“attack” the “entire suite,” but gave up “given the procedural history.” Aug. 13 Tr. at 11:18-21
(D’Amato). The Officers Association agreed to adopt SOP § 2-52 through § 2-56, predicated on
“[t]he City of Albuquerque’s representation that they would be loyal to” Graham v. Connor. Aug.
13 Tr. at 12:2-6 (D’Amato). The Officers Association explained that it spent October, 2018, and
November, 2018, discussing the investigation standard in § 2-57, finally narrowing it in April,
2019, to the “one sentence now before the Court.” Aug. 13 Tr. at 12:7-11 (D’Amato). The Officers
Association concluded that “whether it’s a satisfactory explanation why the delay, it is the
explanation the Officers Association has.” Aug. 13 Tr. at 12:15-17 (D’Amato).
The United States then argued that the issue of timeliness is “dispositive.” Aug. 13 Tr. at
13:5-6 (Ryals). It stated that, because Judge Brack ordered the parties to file all Objections by
January 31, 2019, that order precludes the Court from hearing the Objection. See Aug. 13 Tr. at
13:7-13 (Ryals, Court). The Court construed the Officers Association’s argument as an extension
for time to file its Objection and inquired whether the United States thinks the Officers
Association’s argument merits an extension. See Aug. 13 Tr. at 14:2-6 (Court). The United States
answered that the Officers Association filed its Objection four months after the deadline, and,
during that interval, APD relied upon the policies in developing their training programs. See Aug.
13 Tr. at 14:9-12 (Ryals). When the Court asked the United States to explain the “practical effect”
of the delayed Objection on training, the United States deferred to APD. Aug. 13 Tr. at 14:16-20
(Court, Ryals). The United States provided its understanding of the delay’s prejudicial effect: the
officers will have “to go back and review everything else that [they came] up with based on how
the force review will now proceed.” Aug. 13 Tr. at 15:3-5 (Ryals). When the Court asked if the

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Objection’s filing itself is “slowing anything down,” the United States said that it does not know
whether the filing is slowing anything. Aug. 13 Tr. at 15:7-14 (Court, Ryals).
The Court then asked the United States whether, if the Court construes the Objection as a
motion to reconsider, the Court should hear the Objection on the merits. See Aug. 13 Tr. at
15:21-25 (Court). When the United States said that it “certainly think[s] we should be heard on
the merits,” the Court questioned why the United States thinks the merits should be reached if it is
raising a timeliness issue. Aug. 13 Tr. at 16:3-6 (Ryals, Court). The United States clarified that it
would like to be heard on the merits if the Court changes the Objections deadline. See Aug. 13
Tr. at 16:11-13 (Ryals).
Albuquerque then argued the timeliness issue. See Aug. 13 Tr. at 16:19-22 (Court, Van
Meter). Albuquerque agreed with the United States that the timeliness issue is dispositive, but it
clarified that it would like to argue the merits if the Court rules that the Objection is timely. See
Aug. 13 Tr. at 16:23-25 (Van Meter). It explained that, should the Court sustain the Objection,
“[t]he City of Albuquerque will have to revise the policy” and “retrain the policy.” Aug. 13 Tr. at
17:7-11 (Van Meter). When Albuquerque stated that the “entire department” would need to be
retrained, the Court asked why police officers, who are not investigating use-of-force incidents,
would have to be retrained. Aug. 13 Tr. at 17:14-17 (Court). Albuquerque explained that all police
officers receive training about every use-of-force SOP. See Aug. 13 Tr. at 17:25-18-1 (Van
Meter). Albuquerque explained that, although the officers will “hopefully” not alter what they do
in these situations, they have “almost a due process [right] to understand what standard they’re
being reviewed upon.” Aug. 13 Tr. at 18:15-19 (Van Meter). Albuquerque then explained that
previous policy changes have required Albuquerque to do “gap training,” which is “an incredible
extra expense” and “an incredible investment of time.” Aug. 13 Tr. at 19:11-16 (Van Meter).

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Albuquerque explained the different tiers of the training and noted that the would-have-known
standard is “relevant to them all.”

Aug. 13 Tr. at 20:12-13 (Van Meter).

Albuquerque

acknowledged that it does not know how significantly the change would impact the training
programs but emphasized that it already had begun the training process. See Aug. 13 Tr. at
20:18-25 (Van Meter).
The Court then returned to the Officers Association and asked whether the Officers
Association would object to the Court recasting its Objection as a motion to reconsider. See Aug.
13 Tr. at 22:4-6 (D’Amato). The Officers Association agreed to the Court reinterpreting its
Objection as a motion to reconsider. See Aug. 13 Tr. at 22:7 (D’Amato). The Officers Association
then noted that APD has not begun training on SOP § 2-57. See Aug. 13 Tr. at 22:12-16
(D’Amato). The Court asked the Officers Association whether it agrees with the statement that
the delay is not a “big prejudice,” because the training on this issue has not begun. Aug. 13 Tr. at
22:24-23:1 (Court). The Officers Association responded that not only is the lack of training not
prejudicial, but it is unclear even how “one [would] train an investigator on what an officer would
have known without some delineation or clarification or limits.” Aug. 13 Tr. at 23:2-6 (D’Amato).
The Court reiterated its confusion how to train law enforcement officers on this standard and
expressing its concern with the “second-guessing down the road” that could result from the
standard. Aug. 13 Tr. at 23:7-17 (Court). The Officers Association repeated its concern that the
standard will result in investigators second-guessing officers. See Aug. 13 Tr. at 23:20-23
(D’Amato).
The Court moved to the merits. See Aug. 13 Tr. at 24:10-12 (Court). The Court began by
posing a hypothetical: if Albuquerque, attempting to be a “national model for city police
departments, adopts a set of standards that far exceeded Graham v. Connor, how could the Court

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justify striking down those standards?” Aug. 13 Tr. at 24:16 (Court). See id. at 24:15-20 (Court).
The Officers Association acknowledged that the Court could not strike those standards. See Aug.
13 Tr. at 24:21-22 (D’Amato). The Court asked the Officers Association to identify the Court’s
authority to strike a standard that exceeds the constitutional floor. See Aug. 13 Tr. at 25:1-8; id.
at 25:23-25 (Court). The Officers Association responded that the caselaw cited by Albuquerque
gives the Court authority, not to strike down a standard exceeding the constitutional floor, but to
strike a standard that is vague and does not give a law enforcement officer notice. See Aug. 13 Tr.
at 25:9-13; 25:16-18 (D’Amato). The Officers Association reiterated that it is not arguing that the
Court should strike the standard because of its strictness, but that the standard, without any limiting
language, is too vague to provide notice. See Aug. 13 Tr. at 26:1-12 (D’Amato). The Officers
Association explained that, if Albuquerque elects to establish a standard that is stricter than
Graham v. Connor, the standard must have clear language and must give the officer notice. See
Aug. 13 Tr. at 27-1:5 (D’Amato). The Officers Association notes that SOP §2-57-2 does not
incorporate the officer’s perspective. See Aug. 13 Tr. at 27:10-14 (D’Amato).
The Court voiced its confusion on how to train a law enforcement officer on “what he or
she should or should not have known.” Aug. 13 Tr. at 28:8-9 (Court). The Court acknowledged
that the Tenth Circuit caselaw, however, has established that you can train law enforcement
officers on gathering evidence, because there is limited Tenth Circuit caselaw that discusses “when
we begin to penalize officers for an [in]adequate investigation.” Aug. 13 Tr. at 28:16 (Court). See
id. at 28:9-10 (Court). The Court then asked the Officers Association what language the Officers
Association thinks should be added to the contested sentence. See Aug. 13 Tr. at 29:1-5 (Court).
The Officers Association responded that it would rewrite the sentence to read:

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Supervisor and investigators analyzing use of force incidents will do so
from the perspective of a reasonable officer on scene, and shall consider only the
facts and perceptions known by the officer at the time he used force. They will take
into account that which an officer would have known, which was clearly established
at the time of the use of force.
Aug. 13 Tr. at 29:6-13 (D’Amato). When the Court noted that the Officers Association’s rewrite
omitted language that the other parties want included, Officers Association countered that it wants
only limiting language to be added to “would have known.” Aug. 13 Tr. at 29:16-21 (D’Amato).
The addition of “with which was clearly established,” they argue, clarifies what officers would
known and comports with the qualified immunity standard. Aug. 13 Tr. at 29:16-25 (D’Amato).
The Court noted that the Officers Association is conflating two different tests -- constitutional
violation and clearly established -- and that a constitutional violation determination does not
include a clearly established prong. See Aug. 13 Tr. at 30:4-10 (Court). In response to the Officers
Association noting that Albuquerque relies on qualified immunity cases, the Court reiterated that
the clearly established test is not relevant. See Aug. 13 Tr. at 30:11-20 (D’Amato, Court).
The Officers Association argued that officers should not be subject to the
would-have-known standard, because the standard is “so subjective” and “almost like secondguessing, Monday morning quarterbacking an officer.” Aug. 13 Tr. at 31:6-8 (D’Amato). See id.
at 31:3-8 (D’Amato). Omitting limiting language, the Officers Association argued, also subjects
investigators to unfair discipline.

See Aug. 13 Tr. at 31:13-16 (D’Amato).

The Officers

Association offered a hypothetical situation in which a law enforcement officer uses force on a
man based on false information from the dispatcher that the man has a knife. See Aug. 13 Tr. at
32:3-10 (D’Amato). The Officers Association argued
If [the officer] could articulate a reasonable use of force based on what he
perceived, what he actually knew, and then during the investigatory stage he finds
out that, or an investigator finds out, that the dispatch contained incorrect

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information, and if he had known the correct information, he may have taken
different steps, that opens the door for Monday morning quarterbacking or
second-guessing an officer based on what he believed was true. But if he would
have known it was false, maybe he wouldn’t have taken that action, and therefore,
subject him to discipline.
Aug. 13 Tr. at 32:10-21 (D’Amato).
The Court said that it cannot identify the source giving it the authority to tell Albuquerque
to make policies clearer. See Aug. 13 Tr. at 33:1-:4 (Court). The Officers Association responded
with several reasons it believes the Court has this authority: (i) separation of powers between the
executive and judicial branches; (ii) the municipal government’s policy is “impos[ing]” on the
Court’s jurisdiction; (iii) due process concerns; (iv) the Court “should intervene” when
Albuquerque “rewrite[s] the intent of Graham.” Aug. 13 Tr. at 33:9; 17-18. See id. 33:5-19
(D’Amato). The Court said it recently decided a qualified immunity case with facts similar to the
Officers Association’s hypothetical. See Aug. 13 Tr. at 33:20-34:2 (Court). It noted that it needed
the facts to make its decision, and that an investigation that omitted the facts that the officer does
not know would be “a real cramped investigation and review.” Aug. 13 Tr. at 34:17 (Court). See
id. at 34:3-16. The Officers Association clarified that “[i]n no way do we want to limit the
investigator’s role in ferreting out facts.” Aug. 13 Tr. at 34:20-21 (D’Amato). The Officers
Association explained its concern that there is no language limiting the scope of what an officer
would have known. See Aug. 13 Tr. at 35:3-5 (D’Amato). The Court responded that this concern
is the issue: the officer’s testimony could establish “the parameters by which he or she would be
judged.” Aug. 13 Tr. at 35:12. See id. at 35:7-18 (Court). The Officers Association disagreed
with the Court and explained that any violation that is clearly established, such as what “is clear
in the SOP,” would subject the officer to punishment. Aug. 13 Tr. at 35:19-36:2 (D’Amato).

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The Court asked the United States to speak on the merits. See Aug. 13 Tr. at 37:4 (Court).
The United States first addressed the Court’s authority to resolve Officers Association’s Objection,
pointing to Settlement Agreement ¶ 148, which permits “either party [to] ask the Court to resolve”
any disagreement with the Monitor’s resolution. Aug. 13 Tr. at 37:22 (Court). See id. at 37:20-24.
(Court). The United States noted that the parties did not consider adding the Officers Association
as a party to the Settlement Agreement, because the Officers Association was not yet a party to the
case. See Aug. 13 Tr. at 38:10-18 (Ryle). The Court responded that it interprets “either party” to
refer to the United States and Albuquerque, the two parties to the Settlement Agreement, Aug. 13
Tr. at 38:3-8 (Court), and the word “either” to suggest that “parties” excludes intervenors and
amici, Aug. 13 Tr. at 38:23 (Court). See id. at 38:21-25 (Court). Agreeing with the Court, the
United States explained that it had not fleshed out this issue, because it believed that the objection’s
timeliness and the United States’ other arguments resolve the Objection. See Aug. 13 Tr. at 39:3-9
(Ryle).

It also noted that, while the Officers Association fully participated in Settlement

Agreement, the Court order may not have given Officers Association standing to object. See Aug.
13 Tr. at 39:10-18 (Ryle). Turning to the merits, the United State highlighted Weigel v. Broad as
the “operative case.” Aug. 13 Tr. at 39:22 (Ryle). See id. at 39:21-23 (Ryle). The United States
explained that the would-have-known standard in Weigel v. Broad is “anchored to evidence,” and
that the Weigel v. Broad officers’ training educated them so that they would have known of their
use of force’s increased risk of serious injury or death. Aug. 13 Tr. at 40:5 (Ryle). See id. at
40:2-11 (Ryle). The United States argued that Weigel v. Broad supports the proposition that it is
“totally appropriate [] for the APD to examine and consider the training they provided the officers
and the directives that they have given them. And it’s appropriate to characterize that as the
officers would have known, and take those factors into account when evaluating the officers’

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conduct.” Aug. 13 Tr. at 40:14-19 (Ryle). The United States argues that Weigel v. Broad supports
its language and that its language meets Settlement Agreement’s requirement that the policies
follow the law. See Aug. 13 Tr. at 40:20-41:3 (Ryle).
The Court expressed skepticism with the United States’ reliance on the Weigel v. Broad
language, noting that parties often take a single sentence from opinions out of context and reference
it as a rule of law, even when the Court does not mean for it to be a rule of law. See Aug. 13 Tr.
at 41:9-18 (Court). The United States countered that, although a single sentence can be taken out
of context, the Tenth Circuit in Weigel v. Broad used the “would have known” language twice and
discussed the standard “in the context of what a reasonable officer would have known.” Aug. 13
Tr. at 42:13. See id. at 42:15-21 (Ryle). The United States emphasized that it “goes without
saying” that investigations into an officer’s use of force includes what the officer knew, but that
Albuquerque also will allow the investigator to consider what the officer should have known based
on the officer’s training and on Albuquerque’s policies and directives. Aug. 13 Tr. at 44:13 (Ryle).
See id. at 44:11-19 (Court).
The Court then turned to Albuquerque and asked whether the Court should consider the
Officers Association’s Objection. See Aug. 13 Tr. at 45:4-6 (Court). Albuquerque responded that
the Court should not consider the Officers Association’s Objections, because other mechanisms
are available to the Officers Association to resolve issues. See Aug. 13 Tr. at 45:10-12 (Van
Meter). Taking issue with the United States’ characterization of Judge Brack’s order, Albuquerque
explained that Judge Brack ruled on the Officers Association’s intervention before he approved
Settlement Agreement, and thus, the Officers Association already had an opportunity to ask Judge
Brack to modify Settlement Agreement ¶¶ 147 and 148. See Aug. 13 Tr. at 47:1-12 (Van Meter).
Albuquerque noted that Judge Brack ruled on several Officers Association objections, using as his

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authority the fact that the Officers Association argued that the Settlement Agreement violates the
CBA. See Aug. 13 Tr. at 47:13-17; id. at 48:1-8 (Court, Van Meter). The Court acknowledged
that it had a similar thought: if a party entered into another agreement that violates the CBA, that
issue would be a separate one over which the Court does not have any authority. See Aug. 13 Tr.
at 48:16-20 (Court). Albuquerque noted that the Officers Association has three opportunities to
comment on the policy’s language as well as the opportunity to dispute issues with Albuquerque
at the bargaining table. See Aug. 13 Tr. at 49:8-11 (Van Meter). Albuquerque emphasized that,
although it has the final say on all issues besides wages or issues related to the CBA, the Officers
Association has “every opportunity to have input in the policy development process.” Aug. 13 Tr.
at 49:12-13 (Van Meter). See id. at 49:11-17 (Van Meter). Albuquerque further noted that,
because Judge Brack approved the Settlement Agreement after he ruled on the Officers
Association’s intervention, the Settlement Agreement’s language “either party” refers only to the
City and the United States. Aug. 13 Tr. at 49:22 (Court). See id. at 49:20-50:6 (Court, Van Meter).
Albuquerque explained to the Court that the objection process is meant for the United States and
Albuquerque only to dispute the Monitor’s resolution, and the Court’s role in the process is to
decide disputes between the United States and Albuquerque about the settlement’s
implementation. See Aug. 13 Tr. at 50:12-51:23 (Court, Van Meter). Albuquerque agreed with
the Court that it is concerned that parties will appeal to the Court to “micromanage” the process,
which will result in delays. Aug. 13 Tr. at 52:15 (Court). See id. at 52:9-19 (Van Meter, Court).
Turning to the merits, Albuquerque noted that the Officers Association has proposed three
different solutions to the would-have-known language. See Aug. 13 Tr. at 52:20-23 (Van Meter).
Albuquerque argued that the newest proposed solution, the “clearly established” solution,
“confuses the law and the facts.” Aug. 13 Tr. at 53:3 (Van Meter). See id. at 53:1-5 (Van Meter).

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Albuquerque further argued that another proposed solution, that the investigation look only at what
the officer knew, is inconsistent with the law.

See Aug. 13 Tr. at 537-11 (Van Meter).

Albuquerque highlighted that problem in an email containing that language discussing SOP 2-57,
in which Dr. Ginger never approved that proposed language, but instead asked the Officers
Association to forward its proposal to other parties. See Aug. 13 Tr. at 55:12-25 (Van Meter,
Court)(citing Email from James Ginger to Fred Mowrer at 1, filed August 2, 2019 (Doc. 4704)(stating that Dr. Ginger “approve[s] of the recommended changes” and asks Mr. Mowrer to
“forward the changes we discussed to the Parties”). At the Court’s request, Albuquerque explained
that email circulation process, noting that emails in the proposal stage are circulated only to the
United States, Mr. Mowrer, Dr. Ginger, and Dr. Ginger’s administrative assistant, Laurie Owens.
See Aug. 13 Tr. at 56:22-57:5 (Van Meter). Albuquerque explained that Dr. Ginger “attempted
to resolve the issues by drafting a resolution draft,” which is typically what Dr. Ginger does when
the United States objects to a City policy. Aug. 13 Tr. at 58:8-9 (Van Meter). See id. at 13-18
(Van Meter).
Albuquerque then walked the Court through SOP § 2-57 to demonstrate how the Officers
Association’s argument is wrong. See Aug. 13 Tr. at 59:8-10. It noted that Dr. Ginger’s resolution
draft attached to the Jan. 31 Email is the first time that SOP § 2-57 contains the “knew or”
language. Aug. 13 Tr. at 59:1. See id. at 59:15-25 (Van Meter). Albuquerque did not agree to this
proposed language, so Albuquerque met with the United States, the Officers Association, and Dr.
Ginger, and proffered the “would have known” language, to which the United States consented,
because it is consistent with Tenth Circuit caselaw. Aug. 13 Tr. at 60:6-12 (Van Meter). See id.
at 60:7-12 (Van Meter). Albuquerque noted that the Officers Association did not approve of the
language during this timeframe, yet it waited four months before filing the Objection. See Aug.

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13 Tr. at 60:15-18 (Van Meter). The language, thus, was adopted. See Aug. 13 Tr. at 61:1-2 (Van
Meter).
Albuquerque then turned to SOP § 2-57, noting that it does not want to look at the contested
sentence in isolation. See Aug. 13 Tr. at 61:3-5 (Van Meter). It began by reviewing the force
investigation standards, noting that the policy dictates that investigators conduct one-on-one
interviews with the involved officers. See Aug. 13 Tr. at 61:18-62:5 (Van Meter)(citing SOP
§ 2-57). Responding to an earlier hypothetical in which an officer received wrong information,
Albuquerque showed the Court how its policies ensure that if an officer receives wrong
information about the incident, the investigators consider that “wrong information [] what a
reasonable officer on the scene would have known.” Aug. 13 Tr. at 63:4-9 (Van Meter).
Albuquerque emphasized that the would-have-known standard resolves material inconsistencies
between officers at the scene. See Aug. 13 Tr. at 63:12-24 (Van Meter). Albuquerque argued that
using “what a reasonable officer on the scene would have known” standard avoids relying on what
the officer who used force is contesting if “what the officer is claiming is not what a reasonable
officer on scene would have known.” Aug. 13 Tr. at 63:25-64:11 (Van Meter).
Albuquerque countered the Officers Association’s claim that its standard is inconsistent
with Graham v. Connor. See Aug. 13 Tr. at 64:21-65:4 (Van Meter). Albuquerque further notes
that the Officers Association’s language “ties the City of Albuquerque to an unclear standard.”
Aug. 13 Tr. at 64:6-7 (Van Meter). It concluded by clarifying that its officers have received “Tier
1” training, which includes SOP § 2-57, and thus, any amendment to the policies would require
Albuquerque to retrain the officers on any new standard. Aug. 13 Tr. at 65:9-17 (Van Meter). See
Aug. 13 Tr. at 19:21-22 (Van Meter)(describing Tier 1 training as a “video introduction”)

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The Court turned to Dr. Ginger, who admitted that this is the first time he has had to opine
on a policy to the Court, because the parties were able to resolve issues in the previous three
processes with which Dr. Ginger was involved. See Aug. 13 Tr. at 66:4-11 (Ginger). Dr. Ginger
emphasized that, although he is concerned with officer safety, because he is a former police officer,
he approves the would-have-known standard, which is a standard that “has been used for decades.”
Aug. 13 Tr. at 67:50 (Ginger). See id. at 66:21-67:11 (Ginger). Dr. Ginger describes the standard
as “anchored on objective articulatable evidence that is required to support an officer’s actions.”
Aug. 13 Tr. at 68:18-19 (Ginger). In response to the Court asking Dr. Ginger what he thought the
Court’s role should be, Dr. Ginger stated that, as long as the Officers Association can show how
the policy has a “distinct and articulable negative impact on the Officers Association members, the
Officers Association should be able to go to the Court when it has exhausted all of its other
options.” Aug. 13 Tr. at 69:16 (Ginger). See id. at 69:11:16 (Ginger). Dr. Ginger notes that
language similar to the language at issue “has been used in every use of force development
process” that he has overseen. Aug. 13 Tr. 69:23-24 (Ginger). See id. at 69:22-70:1 (Ginger).
The Court allowed the amici to speak, starting with the American Civil Liberties Union.
See Aug. 13 Tr. at 70:8-9 (Court). The American Civil Liberties Union asked the Court to deny
the Officers Association’s objection, because Graham v. Connor is the minimum, and not the
maximum, standard. See Aug. 13 Tr. at 71:7-12 (Haidle). The McClendon Subclass Members
then spoke,10 stating that the Court does not have the authority to consider the Officers

10

The McClendon Subclass is an amicus curiae comprised of individuals who are part of
the McClendon, et al. v. City of Albuquerque, et al., No. 95-24 JAP/KBM, lawsuit. See Entry of
Appearance at 1, filed January 14, 2015 (Doc. 52). The members are “people who have mental
and/or developmental disabilities who are detained by the Albuquerque police department.”

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Association’s Objection, because none of Albuquerque, the Constitution, any federal statue, or the
Settlement Agreement authorize the Court to hear this Objection. See Aug. 13 Tr. at 72:16-22
(Cubra). The McClendon Subclass Members noted that the Court had delegated some of its
authority to Dr. Ginger to resolve disputes, and that, because Dr. Ginger has made a decision,
“[t]hat’s the end of the conversation in terms of discretion, except as set forth in the Consent
Decree, and, of course, your inherent authority.” Aug. 13 Tr. at 73:25-74:3 (Cubra). See Aug. 13
Tr. at 73:17-74:3 (Cubra). The McClendon Subclass Members acknowledge that, had the Officers
Association brought a constitutional or federal law violation claim, the Court could rule on that
claim. See Aug. 13 Tr. at 74:4-74:7 (Cubra). The McClendon Subclass Members note, for future
reference, that the Court can resolve an objection from the United States or Albuquerque under
Settlement Agreement ¶ 148. See Aug. 13 Tr. at 75:13-24 (Cubra).
The Civilian Police Oversight Agency (“CPOA”) spoke next.11 See Aug. 13 Tr. at 77:9-12
(Harness). The CPOA stated that, after reviewing the Officers Association’s Objection, they
oppose the Objection. See Aug. 13 Tr. at 77:13-20 (Harness). The Community Coalition then
spoke. See Aug. 13 Tr. at 78:24-25 (Court). The Community Coalition voiced its support for
Albuquerque’s standard, stating that it sends a “message” “to the community about the change that
has come about because of this process.” Aug. 13 Tr. at 78:11-13 (Mathewson). See id. at 74:4-14
(Mathewson). The Community Coalition emphasized that, although law enforcement officers will
be held to a higher standard, they will not need to change “how they go about policing.” Aug. 13
Tr. at 78:17-18 (Mathewson). See id. at 78:14-20 (Mathewson).

11

The CPOA oversees APD and gives APD policy guidance. See Civilian Police Oversight
Agency, City of Albuquerque, https://www.cabq.gov/cpoa (last visited May 27, 2020).

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The Officers Association directed the Court to Dr. Ginger’s email chain, noting that Dr.
Ginger stated that he accidentally typed SOP § 2-56 instead of SOP § 2-57, and that, therefore,
Ginger approved SOP § 2-57 and not SOP § 2-56. See Aug. 13 Tr. at 78:18-79:4 (D’Amato,
Court). The Officers Association reiterated that Judge Brack granted it full intervenor status and
that thus the Officers Association should be treated the same as the other parties. See Aug. 13 Tr.
at 80:25-81:1 (D’Amato)(citing Reply at 6 (citing Wright & Miller, 7C Fed. Prac. & Proc. Civ)).
The Officers Association explained that the McClendon Subclass Members “represented, and the
Court will see on its second amended Settlement Agreement, that, in fact Officers Association is
a signatory to the Settlement Agreement.” Aug. 13 Tr. at 81:8-10 (D’Amato). Thus, the Officers
Association argued, Albuquerque is incorrect that the Officers Association has standing only as to
issues involving the CBA. See Aug. 13 Tr. at 81:10-13 (D’Amato). The Officers Association
noted that it has “been quite amenable to resolution through Dr. Ginger’s process.” See Aug. 13
Tr. at 81:16-18 (D’Amato). The Officers Association urged the Court to see the importance of the
use-of-force policy for the Officers Association, even if the Court concludes that the Officers
Association has no standing to object to anything outside of the CBA. See Aug. 13 Tr. at 82:1-8
(D’Amato). The Officers Association concluded by asking the Court to “at least give us standing
to argue that which affects our membership.” Aug. 13 Tr. at 82:12-15 (D’Amato).
The Court responded. See Aug. 13 Tr. at 82:17 (Court). The Court declined to sustain or
overrule the Objection at the hearing, although it noted that it is likely to overrule the Objection.
See Aug. 13 Tr. at 82:19-21. The Court mused that, to reach the merits, it could characterize the
Objection as a motion to reconsider SOP § 2-57, see Aug. 13 Tr. at 83:2-3 (Court), but stated that
the parties need to respect the deadlines, see Aug. 13 Tr. at 83:4-6 (Court). The Court stated that
its “initial thought is that [it] will not be receptive to entertaining objections from the” Officers

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Association and encourages the Officers Association to “use [its] jawboning powers” with the
United States, Albuquerque, and Dr. Ginger. Aug. 13 Tr. at 83:18-21, 23 (Court). See id. at
83:15-25 (Court). The Court said that it is inclined to say that only the United States and
Albuquerque are parties to the Settlement Agreement and that it is not inclined to exercise its
judicial power to order “those two parties to do something they have not agreed to do.” Aug. 13
Tr. at 84:6-7 (Court). See id. at 84:1-11 (Court). The Court turned to the merits, explaining that
it thinks Albuquerque can impose a standard that exceeds the constitutional floor, and that it does
not consider its role to be to rewrite policies and rules. See Aug. 13 Tr. at 84:12-24 (Court). The
Court concluded by overruling the objection and leaving the policy as is. See Aug. 13 Tr. at
85:9-10 (Court).
13.

The Second MTI.

The Officers Association asks the Court to permit it to intervene as a party to the lawsuit
under ¶ 148 of the Second Amended and Restated Court-Approved Settlement Agreement, filed
July 30, 2019 (Doc. 465-1)(“Second Amended Settlement Agreement”)). See Memorandum in
Support of Albuquerque Police Officers Association’s Party Status at 1, 9, filed December 6, 2019
(Doc. 498)(“Second MTI”). On May 28, 2019, the Officers Association filed Objections to a new
use-of-force policy adopted by the Albuquerque Police Department. See Second MTI at 2. The
Officers Association argues the new use-of-force policy would place its members in danger of
disciplinary actions as a result of “hindsight reviews” and violate both established caselaw and
Officers Association members’ contractual rights. Second MTI at 2 (citing Graham v. Connor,
490 U.S. 386 (1989)).
The Officers Association says that, at oral argument on August 13, 2019, the Court
questioned whether the Officers Association had standing to file an objection under ¶ 148 of the

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Settlement Agreement, which states that “either party” may ask the Court to resolve a matter.
Second MTI at 2. The Officers Association reports that, at the August 13, 2019, hearing, the
United States “admitted to the Court” that the Officers Association was not yet a party to the case
when ¶ 148 was written, and thus ¶ 148 does not contemplate the Officers Association as a party.
See Second MTI at 2. According to the Officers Association, the United States suggested that,
although the Officers Association had participated in the use-of-force policy’s development, “this
may not have elevated its standing to object under the Court’s Order.” Second MTI at 2. The
Officers Association states that Albuquerque argued that SOP § 2-57 does not violate the CBA,
which “was [Judge Brack’s] concern when it allowed the [Officers Association] to intervene” and
that the Officers Association would have recourse to a Prohibited Practice Complaint if
Albuquerque violated the Officers Association’s rights.

Second MTI at 3.

The Officers

Association attempts to refute this argument by citing Judge Brack’s comments that it would be
inefficient for the Officers Association to seek relief in another court. See Second MTI at 3 (citing
MTI MOO at 9 (Brack, J.)). The Officers Association reiterates Dr. Ginger’s assessment that the
Officers Association should have “some outlet to the Court when all the other avenues have been
exhausted . . . but that doesn’t remove some sort of burden of proof to show where [sic] it is we
are trying to do has a distinct and negative impact on the members of the APOA.” Second MTI at
3 (quoting Aug. 13, 2019 Tr. at 69:11-13 (Ginger)).
The Officers Association argues that its right to intervene and “to participate in this matter
as a full party . . . was granted by the Court without restriction.” Second MTI at 4 (citing MTI
MOO (Brack, J.); Original Settlement Agreement MOO). The Officers Association reiterates that
Judge Brack granted the Officers Association’s motion to intervene as a matter of right to allow
the final Settlement Agreement to “fully address” the Officers Association’s concerns. Second

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MTI at 4 (citing MTI MOO (Brack, J.)). Judge Brack ordered the Officer’s Association to “state
its formal objections on the record, ‘as a party to the case,’” Second MTI at 4 (quoting MTI MOO
(Brack, J.)), and repeated this position in its Original Settlement Agreement MOO, see Second
MTI at 4 (citing Original Settlement Agreement MOO at 14(c)). The Officers Association cites
Judge Brack for the proposition that “the Union has a right to present objections to the proposed
agreement.” Second MTI at 4 (citing MTI MOO (Brack, J.); Local No. 93 v. Cleveland, 478 U.S.
at 519). It also notes that Judge Brack would “not approve provisions of the agreement that directly
conflict with the Union[’]s Collective Bargaining Agreement . . . or State law.” Second MTI at 5
(citing Johnson v. Lodge No. 93, 393 F.3d at 1107-08).
The Officers Association notes that Judge Brack concluded that the Original Settlement
Agreement’s ¶ 338, which provides for the parties’ ability to make changes to the Original
Settlement Agreement, to be another factor favoring the Officers Association’s intervention as a
party. See Second MTI at 5 (citing MTI MOO (Brack, J.)). According to the Officers Association,
such status would ensure the Officers Association had “sufficient basis to object” to changes in
the Original Settlement Agreement and would be consistent with the rule that “parties who choose
to resolve litigation through settlement may not dispose of the claims of a third party, and . . . may
not impose duties or obligations on a third party without that party’s agreement.” Second MTI at
5 (quoting Local No. 93 v. Cleveland, 478 U.S. 501 at 529). According to the Officers Association,
Judge Brack concluded that the modification process laid out in ¶ 338 would not impair Officers
Associations interests, because the Officers Association’s party status would ensure that the
Officers Association has “notice and an opportunity to respond” and that the Officers Association
would be able to “file its objections, or its intent to file an objection, within 40 days of the proposed
modification.” Second MTI at 5 (quoting Original Settlement Agreement MOO at 28). The

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Officers Association argues that these rulings demonstrate that Judge Brack envisioned the
Officers Association’s participation as a party in the Original Settlement Agreement and
envisioned the Officers Association’s use of ¶ 148 to object to the other parties’ actions. See
Second MTI at 5-6.
The Officers Association next addresses the Court’s inquiry whether the wording of
“either party” in ¶ 148 refers only to the United States and Albuquerque and, therefore, precludes
the Officers Association’s Objections pursuant to ¶ 148. Second MTI at 6. The Officers
Association states that “the Court has already ruled on this matter” and adds that “provision 338
was one of the reasons to permit the APOA to intervene.” Second MTI at 6 (citing Original
Settlement Agreement MOO at 25). In addition, the Officers Association notes that Albuquerque
and the United States drafted the wording of “either party” in ¶ 148 before Judge Brack admitted
the Officers Association as a party.
Next, the Officers Association invokes judicial estoppel in support of its assertion of full
party status, arguing that “[j]udicial estoppel prevents a party who has successfully assumed a
certain position in judicial proceedings from then assuming an inconsistent position, especially if
doing so prejudices a party who has acquiesced in the former position.” Second MTI at 6 (citing
S.W. Steel Coil, Inc. v. Redwood Fire & Cas. Ins. Co., 2006-NMCA-151, ¶ 18, 148 P.3d 806;
State v. St. Cloud, 465 N.W.2d 177 (S.D. 1991)). The Officers Association states that a party
“cannot play ‘fast and loose’ with the Court by changing legal positions in the midst of a suit.”
Second MTI at 6-7 (quoting Citizens Bank v. C & H Constr. & Paving Co., 1976-NMCA-063, ¶
43, 552 P.2d 796, 803). It points out that neither the United States nor Albuquerque appealed “this
Court’s ruling that the APOA participate as a party, to include the APOA’s participation
concerning changes that would be made to the Settlement Agreement pursuant to paragraph 338.”

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Second MTI at 7. Furthermore, the Officers Association asserts that it was consulted at least twice
on modifications to the First Amended Settlement Agreement in the last year, and neither the
United States nor Albuquerque objected to its June 2018 intervention under the First Amended
Settlement Agreement ¶ 148 regarding the United States’ proposed promotional policy. See
Second MTI at 7. It notes that Judge Brack allowed the Officers Association to brief fully the
matter and issued an order granting partial relief to the Officers Association. See Second MTI at
7. The Officers Association argues that the parties’ “failure to object to the APOA’s use of
paragraph 148 to file its objection concerning the promotion policy” provides a telling insight into
the parties’ interpretation of Judge Brack’s order on the Officers Association’s status. Second
MTI at 7.
The Officers Association next argues that in the four-and-a-half years of negotiation, the
United States, Albuquerque, and Judge Brack have not put the Officers Association on notice that
the Original and First Amended Settlement Agreements limit or restrict its participatory status.
See Second MTI at 8. Any objections to its status should have been raised at the beginning of the
proceedings, the Officers Association argues, and the Officers Association has relied on its
position as a party throughout this time. See Second MTI at 8. Over the United States’ and
Albuquerque’s opposition, Judge Brack granted the Officers Association full party status to
“[e]nsure the Court could properly enforce the Order and . . . allow the APOA to protect its CBA
and to participate in any modification of the [Settlement Agreement].” Second MTI at 8.
Finally, the Officers Association raises the law-of-the-case doctrine: it argues that because
Judge Brack has already decided the Officers Association’s party status, new arguments to limit it
“relate to the same issues recurring within the same suit.” Second MTI at 9 (citing Alba v. Hayden,
2010-NMCA-037, 237 P.3d 767; Cordova v. Larsen, 2004-NMCA-87, ¶ 10, 94 P.3d 830; United

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States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)). Similarly, the Officers Association argues
that the law-of-the-case doctrine applies, because Judge Brack, acting for the District of New
Mexico, has “already interpreted wording in paragraph 338 that is substantially similar to the
wording in paragraph 148” and has permitted the APOA to “use paragraph 148 to challenge a
policy issued by the City.” Second MTI at 9.
14.

United States Second MTI Response.

The United States responds. The United States’ Response to Memorandum of Intervenor
Albuquerque Police Officers Association at 1, filed December 19, 2019 (Doc. 500)(“United States
Second MTI Response”). While the United States acknowledges the Officers Association’s
participation as an intervenor over the last five years, it considers the Officers Association’s
intervention “limited to the protection of its members’ collective bargaining rights” and agrees
with the Court’s oral ruling that the Officers Association cannot object to an APD policy, because
it is not a party to the First Amended Settlement Agreement. United States Second MTI Response
at 1. The United States affirms the value of the Officers Association’s participation in the process
so far, particularly in terms of: (i) its ability to raise issues that affect APD officers’ safety and
legal and constitutional rights; and (ii) its role in communicating with officers about the Settlement
Agreement. See United States Second MTI Response at 2. The United States defines the issue
not as whether the Officers Association can continue to assist the parties and Ginger with the
Second Amended Settlement Agreement’s implementation but “whether the Officers Association,
as an intervenor, can seek relief from the Court when APD institutes a policy that the Officers
Association finds objectionable.” United States Second MTI Response at 2.
The United States notes that this question arose four months after the finalization of SOP
§ 2-57, when the Officers Association filed a notice objecting to one sentence in the policy. United

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States Second MTI Response at 2 (citing Jan. 31 Email at 1-2; Objection at 2-3). The United States
notes that, after responses from and replies by the United States, Albuquerque, and the Officers
Association, the Court held a hearing on the Officers Association’s Objection, which it overruled
from the bench. See United States Second MTI Response at 3 (citing Aug. 13 Tr. at 84-85). The
United States notes that the Court’s “inclination ‘to take a position that only the City and the United
States are parties to this agreement’” and the Court’s reticence to exercise “raw judicial power” by
“telling those two parties to do something that they have not agreed to do” are correct. United
States Second MTI Response at 3 (quoting Tr. at 84:5-7 (Court)). The United States characterizes
the Court’s oral ruling on the Officers Association’s Objection as “consistent with the terms of the
Settlement Agreement, which defines the parties to the agreement as the City of Albuquerque and
the United States.” United States Second MTI Response at 3. The United States contends that the
Court’s decision “finds ample support in the Federal Rules of Civil Procedure and cases in the
Tenth Circuit.” United States Second MTI Response at 3. The United States makes two primary
points in its argument: (i) the Officers Association is not a party to the Second Amended Settlement
Agreement; and (ii) the Officers Association’s SOP Objections are outside its scope of rights as
an intervenor, which are limited to protecting its CBA. See United States Second MTI Response
at 5-6.
First, the United States argues that the Officers Association is not a party to the Second
Amended Settlement Agreement by referring to its text, which defines the parties as “the United
States of America and the City of Albuquerque.” United States Second MTI Response at 3
(quoting Second Amended Settlement Agreement at 1). It notes that the Second Settlement
Agreement assigns the parties “numerous rights and responsibilities,” including the “right to seek
relief from the Court regarding disagreements about APD’s Settlement Agreement-related

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policies” and did not modify these terms when it granted the Officers Association’s MTI. United
States Second MTI Response at 4 (citing Second Amended Settlement Agreement ¶ 148; MTI
MOO (Brack, J.)).

Rather, the United States contends, Judge Brack granted the Officers

Association’s MTI only because of the Officers Association’s bargaining relationship with
Albuquerque, recognizing its interest in “ensuring the integrity” of the CBA, United States Second
MTI Response at 4 (citing Original Settlement Agreement MOO at 14; MTI MOO at 6 (Brack,
J.)), and by granting the MTI, Brack did not give “the Union . . . the power to veto the proposed
Agreement,” United States Second MTI Response at 4 (citing MTI MOO at 9 (Brack, J.)).
Second, the United States argues that the Officers Association’s policy objections were
“outside the scope of its rights as an intervenor.” United States Second MTI Response at 4. It
argues that an “intervention of right . . . may be subject to appropriate conditions or restrictions
. . .,” and the court may “impose appropriate conditions on an intervenor.” United States Second
MTI Response at 4 (quoting advisory committee notes to Fed. R. Civ. P. 24 (1966 Amendment),
and citing Swelpi, LP v. Mora Cty., N.M., 14-CV-0035 JB/SCY, 2014 WL 6983288, *46 n. 20
(D.N.M. Dec. 5, 2014)(Browning, J.)). The United States also cites Tenth Circuit caselaw that
permits district courts “broad discretion to set conditions and restrictions on the scope of
intervention,” and for affirming district court rulings “limiting intervenors’ roles in cases involving
consent decrees.” United States Second MTI Response at 5 (citing San Juan Cty. v. United States,
503 F.3d at 1189; Johnson v. Lodge No. 93, 393 F.3d at 1108). The United States “welcomes the
Officers Association’s continued participation . . . as an intervenor and values its perspectives and
insights” but disagrees that this involvement should extend to objecting to an APD policy that is
unrelated to its interest in collective bargaining rights. United States Second MTI Response at 5.

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In support of this argument, the United States asserts that Judge Brack did not extend the
Officers Association’s rights as an intervenor “to issues beyond the CBA” when the Officers
Association raised objections to the Original Settlement Agreement based on purported conflicts
with the CBA. United States Second MTI Response at 5-6 (citing Intervenor’s Objections to the
Proposed Settlement Agreement, filed March 5, 2015 (Doc. 105)(“Officers Association’s
Settlement Agreement Objections”); Settlement Agreement MOO at 15). According to the United
States, Judge Brack reviewed the Officers Association’s Objections and determined that the
Original Settlement Agreement did not conflict with the CBA or state law before confirming it.
United States Second MTI Response at 6 (citing Original Settlement Agreement MOO at 14-28).
In terms of the Officers Association’s objection to SOP § 2-57, the United States notes that
the Officers Association has not asserted any conflict between the CBA and SOP § 2-57, but
“objected to [only] one sentence in the policy on the ground that it was inconsistent with the law.”
United States Second MTI Response at 6 (citing Objections; Objection Reply). The United States
notes that the Officers Association argued for the first time in its December 2019 Second MTI that
there is a conflict between SOP § 2-57 and the Officers Association members’ “contract rights,”
but the United States argues that the Officers Association did not identify a specific CBA. United
States Second MTI Response at 6 n.4 (citing Officers Association Memo at 2). Because the
Officers Association does not raise the CBA in its arguments against SOP § 2-57 at the August,
2019, hearing, the United States asserts that the Court “appropriately ruled” that the Officers
Association’s objection to SOP § 2-57 was beyond the scope of the Officers Association’s
intervention. See United States Second MTI Response at 6.

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15.

Albuquerque Second MTI Response.

Albuquerque responds.

See City of Albuquerque’s Response to Intervenor’s

Memorandum in Support of Albuquerque Police Officers Association’s Party Status at 1, filed
December 20, 2019 (Doc. 501)(“Albuquerque Second MTI Response”). Albuquerque urges the
Court to deny Officers Association’s Objection to SOP § 2-57. While the Officers Association
objects to the proposed use-of-force standard -- “what a reasonable officer would have known” -Albuquerque counters that this standard is drawn from controlling Supreme Court and Tenth
Circuit caselaw. Albuquerque Second MTI Response at 2 (citing Graham v. Connor, 490 U.S. at
386; Weigel v. Broad, 544 F.3d at 1152-53). Albuquerque notes that APD “has now delivered
most of the training on the use of force . . . policies,” and that they will be operative in January
2020. Albuquerque Second MTI Response at 2.
Albuquerque argues that caselaw involving a party intervening in a case with a settlement
agreement “generally focuses on the party’s interests regarding objecting to the consent decree
itself,” but this intervention “does not mean that it can veto the settlement,” so long as “the
settlement is reasonable, fair, and consistent with [federal law].” Albuquerque Second MTI
Response at 3 (citing WildEarth Guardians v. U.S. Forest Serv., 778 F. Supp. 2d at 1149).
Albuquerque cites the Court’s holding in WildEarth Guardians v. United States Forest Service for
the rule that a “non-consenting intervenor may object to the approval of a settlement agreement if
the decree adversely affects its legal rights or interests.” Albuquerque Second MTI Response at
3 (citing WildEarth Guardians v. U.S. Forest Serv., 778 F. Supp. 2d at 1149). Albuquerque also
refers to Johnson v. Lodge No. 93, where the Tenth Circuit denied the union-intervenor’s
objections to the Settlement Agreement, because state law did not give the union the “unfettered
right” to “insist on particular terms and conditions of employment, and to then arbitrate the City’s

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failure to acquiesce to those particular terms.” Albuquerque Second MTI Response at 3 (quoting
Johnson v. Lodge No. 93, 393 F.3d at 1104-07).
Albuquerque urges the Court to decide whether the Labor Ordinance or the CBA provide
grounds for the Officers Association’s Objection before the Court turns to the Objection’s merits.
See Albuquerque Second MTI Response at 3-4. Where the intervenor is not a party to the
settlement agreement and fails to meet traditional standing requirements, Albuquerque contends
that the intervenor cannot object to the agreement. Albuquerque Second MTI Response at 4 (citing
N.M. ex rel. State Eng’r v. Carson, 908 F.3d 659, 665-66 (10th Cir. 2018)). Albuquerque argues
that, although the Officers Association’s objection is to a SOP and not to the Settlement
Agreement, state law, the Labor Ordinance and the CBA all grant it the right to “develop and
implement such directives[,] rules[,] and regulations as may be deemed necessary to the employer
for the conduct of affairs of the Department.” Albuquerque Second MTI Response at 4 (quoting
CBA § 32.1, at 41)). Albuquerque argues that the Second Amended Settlement Agreement gives
the United States and Dr. Ginger -- but not the Officers Association -- the right to bring policy
objections to the Court, and in granting the Officers Association’s motion to intervene, Judge
Brack did not expand the Officers Association’s authority. See Albuquerque Second MTI
Response at 4-5.
Albuquerque contends that the Officers Association’s objection to SOP § 2-57 lacks
support of any showing that “the provision violates state law or the CBA,” or that it “imposes a
new obligation on the Officers’ Association.” Albuquerque Second MTI Response at 5 (citing
Johnson v. Lodge No. 93, 393 F.3d at 1105-06). Further, Albuquerque notes that the Officers
Association did not demonstrate: (i) any injury in fact to itself or its members; (ii) a causal
connection between the injury and the conduct in question; (iii) that a favorable decision would

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redress that injury; or (iv) that the Officers Association suffered any legal prejudice. See
Albuquerque Second MTI Response at 5 (citing N.M. ex rel. State Eng’r v. Carson, 908 F. 3d at
666). Albuquerque quotes the Tenth Circuit: “‘If the applicant is granted intervention because of
an interest that may be injured by the litigation, it does not follow that the intervention must extend
to matters not affecting that interest.’” Albuquerque Second MTI Response at 5 (quoting San Juan
Cty. v. United States, 503 F.3d at 1189).
Albuquerque next argues that the United States and Dr. Ginger adequately represent any
interest the Officers Association may have in ensuring “policies enacted by the APD are consistent
with the Settlement Agreement and the law”: it contends this interest is the only basis for an
objection “pursuant to paragraphs 147 and 148 of the Settlement Agreement.” Albuquerque
Second MTI Response at 5. Albuquerque argues that “[]ithout a nexus to the rights protected by
the CBA,” the Officers Association cannot demonstrate an interest that justifies bringing an
objection before the Court. Albuquerque Second MTI Response at 5.
With regard to previous court orders on the Officers Association’s party status,
Albuquerque argues that, while Judge Brack granted the Officers Association the “right to present
objections to the proposed Agreement,” he overruled those objections, because he did “not find
any direct conflicts with the CBA, state, or federal law.” Albuquerque Second MTI Response at
6 (quoting Original Settlement Agreement MOO at 14-15, 29). Albuquerque points out that the
Officers Association did not object to the Second Amended Settlement Agreement’s ¶¶ 147 or
148, which refer to the United States and Albuquerque as sole parties to the Agreement: “[I]f either
party disagrees with the Monitor’s resolution of the objection, either party may ask the Court to
resolve the matter.”

Albuquerque Second MTI Response at 6 (quoting Second Amended

Settlement Agreement ¶ 148); Albuquerque Second MTI Response at 6 n. 4. Albuquerque notes

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that, in addition to the Officers Association’s lack of objection to ¶¶ 147 and 148, Judge Brack did
not order the Officers Association a party to the Original Settlement Agreement, and therefore the
terms “party” and “parties” in the Second Amended Settlement Agreement do not include the
Officers Association.

Albuquerque’s Response at 6 (quoting Second Amended Settlement

Agreement ¶¶ 147-148).
Albuquerque argues that when Judge Brack ruled that “[n]othing in this court-approved
Agreement supersedes the CBA,” Judge Brack “did not grant the APOA greater rights than it has
pursuant to the CBA,” or alter its terms. Albuquerque Second MTI Response at 6 (quoting Original
Settlement Agreement MOO at 18). According to Albuquerque, allowing the Officers Association
to use ¶ 148 to object to a policy already approved by the DOJ, Albuquerque, and the Monitor,
would frustrate the employer’s right under the Labor Ordinance and CBA “to develop such
directives[,] rules[,] and regulations as may be deemed necessary to the employer.” Albuquerque
Second MTI Response at 6 (quoting CBA § 32.1)(internal quotation marks omitted)(alterations in
Second MTI Response). Albuquerque argues that allowing the Officers Association to read ¶ 148
in this way would contradict Judge Brack’s holding that the Original Settlement Agreement does
not supersede the CBA. See Albuquerque Second MTI Response at 7. Albuquerque emphasizes
its rights under the Labor Ordinance and the CBA to “manage and . . . exercise judgment on all
matters” and to “develop and implement Department policy” so long as it does so consistently with
the CBA and state law. Albuquerque Second MTI Response at 7 (quoting Original Settlement
Agreement MOO at 15, 27 (Brack, J.)(quoting Labor Ordinance § 3-2-5; CBA §§ 2.5, 32.1)).
Addressing the Officers Association’s argument that it has “full party” status, Albuquerque
responds that this position is “inconsistent with the case law upon which the Court relied in
exercising its discretion to allow the APOA to intervene.” Albuquerque Second MTI Response at

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7 (citing Second MTI at 4). For example, in Local No. 93, International Association of Firefighters
v. Cleveland, the Supreme Court “declined to consider arguments where the union did not
demonstrate that the consent decree impinged on the union’s rights . . . under law or the CBA.”
Albuquerque Second MTI Response at 7 (citing 478 U.S. at 530). Albuquerque also contends that
the Officers Association’s assertion of full-party status is inconsistent with Judge Brack’s rationale
in allowing the Officers Association to intervene only “to protect the interests set forth in the CBA
and labor-relations laws.” Albuquerque Second MTI Response at 7 (citing MTI MOO at 6 (Brack,
J.)).
Next, Albuquerque rejects the Officers Association’s judicial estoppel argument, because
“it misconstrues the City’s argument.” Albuquerque Second MTI Response at 8. Albuquerque
does not object to challenges from the Officers Association about Second Amended Settlement
Agreement provisions that impair the Officers Association’s or its members’ rights under the CBA
or under the law: for example, when the Officers Association argued its objections to
Albuquerque’s promotional policy before the Court, Albuquerque did not object.

See

Albuquerque Second MTI Response at 8 (citing Motion for Court Acceptance of the City’s
Proposed Promotional Policy, filed May 29, 2018 (Doc. 374)(“City of Albuquerque’s Proposed
Promotional Policy Motion”)). In contrast, Albuquerque argues that the Officers Association’s
objections to the “would-have-known” standard do not relate to “any provision of the CBA or any
term or condition of employment.”

Albuquerque Second MTI Response at 8.

Further,

Albuquerque argues that, because this Objection is the first time the Officers Association has
brought an objection with “no clear relationship to the CBA or labor-relations,” it has never before
needed to object to Officers Association’s use of ¶ 148. In sum, Albuquerque “merely objects to
allowing the Officers Association to exercise rights reserved to [Albuquerque] by law and the

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CBA, specifically the right to manage the day-to-day affairs of APD.”12 Albuquerque Second MTI
Response at 8.
Nevertheless, Albuquerque does not object to “inclusion of the Officers’ Association in the
policy development process,” the Officers Association’s presence at policy meetings, its ability to
provide written comments on policies, or “its vote at the [Policy and Procedures Review Board].”
Albuquerque Second MTI Response at 8. Albuquerque states that it “welcomes the input of
officers and the APOA regarding its policies” and has given it “numerous opportunities for
comment.” Albuquerque Second MTI Response at 8 (citing Albuquerque Objection Response).
For the above reasons, Albuquerque urges the Court to overrule the Officers Association’s
objection. See Albuquerque Second MTI Response at 9.
LAW REGARDING FEDERAL COURT JURISDICTION TO ENFORCE
SETTLEMENT AGREEMENTS
“Once a lawsuit is settled and dismissed, the district court does not generally have
‘ancillary jurisdiction to enforce the parties’ settlement agreement. A district court can, however,
retain jurisdiction over a settlement agreement if the order of dismissal shows an intent to retain
jurisdiction or incorporates the settlement agreement.’” McKay v. United States, 207 F. App’x.
892, 894 (10th Cir. 2006)(unpublished)13(quoting Morris v. City of Hobart, 39 F.3d 1105, 1110

12

The Court presumes Albuquerque was referring to its own rights -- rather than the
Officers Association’s rights -- in this sentence: “The City merely objects to allowing the Officers
Association to exercise rights reserved to it by law and the CBA, specifically the right to manage
the day-to-day affairs of APD.” Albuquerque Second MTI Response at 8.
13

McKay v. United States is an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th
Cir. R. 32.1(A), 28 U.S.C. (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:

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(10th Cir. 1994), and citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. at 380-81)).
Accordingly, a federal court does not, ipso facto, have jurisdiction over a settlement agreement by
virtue of the settlement agreement resolving claims which the federal court previously entertained.
See Marcotte v. Burlington N. Santa Fe Rail Corp., No. CIV 04-0836 JB/RLP, 2007 WL 5685129,
at *12 n.5 (D.N.M. Oct. 11, 2007)(Browning, J.)(“The Court has, however, no ancillary
jurisdiction over the settlement agreement of the parties, because the Court did not explicitly retain
such jurisdiction in its order dismissing this case with prejudice pursuant to joint motion.”).
Reference to the settlement agreement in the order dismissing a case is necessary for a
court to retain jurisdiction over the agreement after dismissing the parties’ claims which the
settlement resolved, unless the Court has an independent basis for jurisdiction over the agreement.
“Unless incorporated into a judgment of the court, a settlement agreement is ‘a contract, part of
the consideration for which [i]s dismissal of a[] suit.’” Beetle Plastics Inc. v. United Ass’n of
Journeymen & Apprentices of Plumbing & Pipefitting Indus., 97 F.3d 1464, at *1 (10th Cir. Sept.
19, 1996)(unpublished table decision)(quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. at
381). “Without reservation by the court . . . there must be an independent basis for federal

In this circuit, unpublished orders are not binding precedent, . . . And we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its disposition,
we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that McKay
v. United States, Beetle Plastics, Inc. v. United Ass’n of Journeymen & Apprentices of Plumbing
and Pipefitting Indus., In re SEC, Ute Distrib. Corp. v. Norton, Wallace v. United States, and Smith
v. U.S. Parcel have persuasive value with respect to a material issue and will assist the Court in its
disposition of this Memorandum Opinion and Order.

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jurisdiction.” Morris v. City of Hobart, 39 F.3d at 1110-11 (citing Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. at 382).
If the parties’ “obligation to comply with the terms of the settlement agreement had been
made part of the order of dismissal -- either by separate provision (such as a provision ‘retaining
jurisdiction’ over the settlement agreement) or by incorporating the terms of the settlement
agreement in the order,” the situation is different. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. at 381. “In that event, a breach of the agreement would be a violation of the order, and
ancillary jurisdiction to enforce the agreement would therefore exist.” Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. at 381. On the other hand, “[t]he judge’s mere awareness and approval
of the terms of the settlement agreement do not suffice to make them part of his order.” Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. at 381. See Macias v. N.M. Dep’t of Labor, 300 F.R.D.
529, 547-48 (D.N.M. 2014)(Browning, J.).
LAW REGARDING ERIE AND THE RULES ENABLING ACT
“In diversity cases, the Erie14 doctrine instructs that federal courts must apply state
substantive law and federal procedural law.” Racher v. Westlake Nursing Home Ltd. P’ship, 871
F.3d 1152, 1162 (10th Cir. 2017). “If a federal rule of civil procedure answers the question in
dispute, that rule governs our decision so long as it does not ‘exceed[ ] statutory authorization or
Congress's rulemaking power.’” Racher v. Westlake Nursing Home Ltd. P’ship, 871 F.3d at 1162
(quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins., 559 U.S. 393, 398 (2010)(“Shady
Grove”)). “When faced with a choice between a state law and an allegedly conflicting federal
rule,” the Tenth Circuit “follow[s] the framework described by the Supreme Court in [Shady

14

Erie R. Co. v. Tompkins, 304 U.S. 64 (1983).

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Grove], as laid out by Justice Stevens in his concurring opinion.” Racher v. Westlake Nursing
Home Ltd. P’ship, 871 F.3d at 1162. “First, the court must decide whether the scope of the federal
rule is sufficiently broad to control the issue before the court, thereby leaving no room for the
operation of seemingly conflicting state law.” Racher v. Westlake Nursing Home Ltd. P’ship, 871
F.3d at 1162 (citations and quotations omitted). There is a conflict between federal and state law
if there is a “direct collision” that is “unavoidable,” but there is no collision if the state and federal
rules “can exist side by side . . . each controlling its own sphere of coverage.” Racher v. Westlake
Nursing Home Ltd. P’ship, 871 F.3d at 1163 (citations omitted). If there is no direct collision,
“there is no need to consider whether the federal rule is valid, and instead, the analysis must
proceed under Erie.” Racher v. Westlake Nursing Home Ltd. P’ship, 871 F.3d at 1163. If there
is a direct collision, a court must follow the federal rule if it is a valid exercise of the Supreme
Court’s rulemaking authority under the Rules Enabling Act, 28 U.S.C. § 2072, that is, it must “not
abridge, enlarge or modify a substantive right.” 28 U.S.C. § 2072(b). See Racher v. Westlake
Nursing Home Ltd. P’ship, 871 F.3d at 1163-64.
Justice Stevens, in his controlling concurrence in Shady Grove, addressed
how, in a diversity case where state substantive law applies, to analyze whether a
federal rule of procedure abridges, enlarges or modifies a substantive right. [Shady
Grove, 559 U.S. at 418-21 (Stevens, J., concurring) ]; see Gasperini [v. Center for
Humanities, Inc.], 518 U.S. [415] at 427 (1996)]. Justice Stevens advised courts
not to rely on “whether the state law at issue takes the form of what is traditionally
described as substantive or procedural.” Shady Grove, 559 U.S. at 419 (Stevens, J.,
concurring). Rather, a more nuanced approach is required. [Shady Grove, 559 U.S.
at 419-20]. Justice Stevens observed that “[a] state procedural rule, though
undeniably ‘procedural’ in the ordinary sense of the term, may exist to influence
substantive outcomes, and may in some instances become so bound up with the
state-created right or remedy that it defines the scope of that substantive right or
remedy.” [Shady Grove, 559 U.S. at 419-20](citation and internal quotation marks
omitted). One example of such a law is a procedural rule that “may . . . define the
amount of recovery.” [Shady Grove, 559 U.S. at 420]. Ultimately, a court must
consider whether the federal procedural rule has displaced “a State’s definition of
its own rights or remedies.” [Shady Grove, 559 U.S. at 418,]. If so, the federal rule

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may be invalid under the Rules Enabling Act because the federal rule abridges,
enlarges or modifies a state substantive right.
Racher v. Westlake Nursing Home Ltd. P’ship, 871 F.3d at 1164 (citations omitted)(alteration in
the original)(quoting Shady Grove, 559 U.S. at 418-20 (Stevens, J., concurring)). “[W]hen state
law creates a cause of action, it also defines the scope of that cause of action,” which includes “the
applicable burdens, defenses, and limitations.” Racher v. Westlake Nursing Home Ltd. P’ship,
871 F.3d at 1164-65. Consequently, even though burdens of proof, affirmative defenses, and
liability limitations are all legal concepts that savor of procedure, “[f]ailing to enforce such
attendant attributes of a state law would lead to different measures of the substantive rights
enforced in state and federal courts,” i.e., would modify substantive rights. Racher v. Westlake
Nursing Home Ltd. P’ship, 871 F.3d at 1165. See Walker v. Spina, 359 F. Supp. 3d 1054, 108283 (D.N.M. 2019)(Browning, J.).
LAW REGARDING GOOD CAUSE TO MODIFY SCHEDULING ORDER DEADLINES
“The District Court has wide discretion in its regulation of pretrial matters.” Si-Flo, Inc.
v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). Scheduling orders, however, “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Accord
Street v. Curry Bd. of Cty. Comm’rs, 2008 WL 2397671, at *6. The advisory committee notes to
rule 16 observe:
[T]he court may modify the schedule on a showing of good cause if it cannot
reasonably be met despite the diligence of the party seeking the extension. Since
the scheduling order is entered early in the litigation, this standard seems more
appropriate than a “manifest injustice” or “substantial hardship” test. Otherwise, a
fear that extensions will not be granted may encourage counsel to request the
longest possible periods for completing pleading, joinder, and discovery.

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Fed. R. Civ. P. 16(b)(4) advisory committee’s note to 1983 amendment. The Court has stated in
the past: “Properly construed, ‘good cause’ means that scheduling deadlines cannot be met despite
a party’s diligent efforts.” Street v. Curry Bd. of Cty. Comm’rs, 2008 WL 2397671, at *6.
Other courts within the Tenth Circuit have held that
the good cause standard primarily considers the diligence of the party . . . . The
party seeking an extension must show that despite due diligence it could not have
reasonably met the scheduled deadlines. Carelessness is not compatible with a
finding of diligence and offers no reason for a grant of relief.
Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. 295, 301 (D. Kan. 1996)(Rushfelt,
M.J.)(alteration in original)(internal quotation marks omitted). The Honorable Dale A. Kimball,
United States District Judge for the United States District Court for the District of Utah, found
“good cause” existed to amend the court’s scheduling order when the court decided to permit the
plaintiff's counsel to withdraw as counsel. Kee v. Fifth Third Bank, No. CIV 2:06-00602-DAKPMW, 2008 WL 183384, at *1 (D. Utah Jan. 17, 2008)(Kimball, J.). Judge Kimball reasoned: “In
light of the court’s decision to permit [counsel] to withdraw . . . the court has determined that good
cause exists for amending the existing scheduling order.” 2008 WL 183384, at *1. Similarly, this
Court has found good cause to amend a scheduling order when a party demonstrates their due
diligence and the amendment will not cause “undue prejudice or harm” to the opposing party.
Walker v. THI of N.M. at Hobbs Ctr., 262 F.R.D. 599, 604-605 (D.N.M. Oct. 8,
2009)(Browning, J.).
LAW REGARDING INTERVENTION AS A MATTER OF RIGHT
Federal Rule of Civil Procedure 24(a) provides for intervention as a right:
(a)
Intervention of Right. On timely motion, the court must permit
anyone to intervene who:

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(1)
is given an unconditional right to intervene by a
federal statute; or
(2)
claims an interest relating to the property or
transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede
the movant's ability to protect its interest, unless existing parties
adequately represent that interest.
Fed. R. Civ. P. 24(a). The movant bears the burden of establishing its right to intervene. See
United States v. Tex. E. Transmission Corp., 923 F.2d 410, 414 (5th Cir. 1991). A court generally
may not consider concerns of judicial economy and efficiency when ruling on a request to
intervene as a right. See United States v. Union Elec. Co., 64 F.3d 1152, 1158 & n.1 (8th Cir.
1995)(“We find that supplanting the standards applicable to intervention as of right under Rule
24(a) with policy considerations led to the erroneous denial of intervention in this case.”); In re
Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991)(“The district court, however, incorrectly bolstered
its denial of intervention of right by referring to concerns of judicial economy and need for
guidance. Although those issues have a place in motions for permissive intervention, Rule 24(a)
affords them no weight.”). To intervene as a matter of right under rule 24(a)(2), the movant must
show that: (i) the motion is timely; (ii) the movant asserts an interest relating to the property or
transaction which is the subject of the action; (iii) the movant’s interest relating to the property
may be impaired or impeded; and (iv) existing parties do not adequately represent the movant’s
interest. See Elliott Indus. LP v. Am. Prod. Co., 407 F.3d at 1103.
“The timeliness of a motion to intervene is assessed in light of all the circumstances,
including the length of time since the applicant knew of his interest in the case, prejudice to the
existing parties, prejudice to the applicant, and the existence of any unusual circumstances.” Am.
Ass’n

of

People

with

Disabilities

v.

Herrera,

257

F.R.D.

236,

245

(D.N.M.

2008)(Browning, J.)(quoting Utah Ass’n of Ctys. v. Clinton, 255 F.3d 1246, 1250 (10th Cir.

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2001))(alteration omitted)(internal quotation marks omitted). “Unusual circumstances” refers to
those circumstances that would excuse the untimely filing of a motion to intervene. In re SEC,
296 F. App’x 637, 640 (10th Cir. 2008)(unpublished). In measuring timeliness by the length of
time that the applicant knew of its interest, the Tenth Circuit looks to the point in time “when the
movant was on notice that its interests may not be protected by a party already in the case.” Okla.
ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232 (10th Cir. 2010).
“Under rule 24(a)(2), the applicants must claim . . . an interest relating to the property or
transaction which is the subject of the action.” Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1250
(internal quotation marks omitted). “The Tenth Circuit requires that the interest be ‘direct,
substantial, and legally protectable.’” Forest Guardians v. U.S. Dep’t of Interior, No. CIV 021003, 2004 WL 3426413, at *5 (D.N.M. Jan. 12, 2004)(Browning, J.)(quoting Utah Ass’n of Ctys.
v. Clinton, 255 F. 3d at 1250). The Tenth Circuit has also noted that the inquiry is “highly factspecific,” and that “the ‘interest’ test is primarily a practical guide to disposing of lawsuits by
involving as many apparently concerned persons as is compatible with efficiency and due
process.” Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1251-52. “The threshold for finding the
requisite legal protectable interest is not high.” Forest Guardians v. U.S. Dep’t of Interior, 2004
WL 3426413, at *5 (citing Utahns for Better Transp. v. U.S. Dep't of Transp., 295 F.3d at
1115)(“Furthermore, the Tenth Circuit has deemed the mere threat of economic injury to be
sufficient for granting intervention.”).
“To satisfy [the impairment] element of the intervention test, a would-be intervenor must
show only that impairment of its substantial legal interest is possible if intervention is denied. This
burden is minimal.” WildEarth Guardians v. U.S. Forest Serv., 573 F.3d at 995 (“If an absentee
would be substantially affected in a practical sense by the determination made in an action, he

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should, as a general rule, be entitled to intervene.”). “Although the intervenor cannot rely on an
interest that is wholly remote and speculative, the intervention may be based on an interest that is
contingent upon the outcome of the litigation.” San Juan Cty. v. United States, 503 F.3d at 1203.
A third party’s interest may be impaired “when the resolution of the legal questions in the case
effectively foreclose [sic] the rights of the intervenor in later proceedings, whether through res
judicata, collateral estoppel, or stare decisis.” Ute Distrib. Corp. v. Norton, 43 F. App’x 272, 279
(10th Cir. 2002)(unpublished).
“Although an applicant for intervention as of right bears the burden of showing inadequate
representation, that burden is the ‘minimal’ one of showing that representation ‘may’ be
inadequate.” Forest Guardians v. U.S. Dep’t of Interior, 2004 WL 3426413 at *6. “The most
common situation in which courts find representation adequate arise when the objective of the
[movant] is identical to that of one of the parties.” Bottoms v. Dresser Indus., Inc., 797 F.2d 869,
872-73 (10th Cir. 1986)(emphasis added). The Tenth Circuit has found, however, that the
“possibility of divergence of interest need not be great in order to satisfy the burden of the
applicants.” Coal. of Ariz./N.M. Ctys. v. Dep’t of Interior, 100 F.3d at 845. This minimal burden
is further reduced when it is the government that is supposed to adequately represent the potential
intervenor’s interest. See Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1254-1255. “[A] presumption
of adequate representation arises when an applicant for intervention and an existing party have the
same ultimate objective in the litigation,” but the Tenth Circuit has “held this presumption [is]
rebutted by the fact that the public interest the government is obligated to represent may differ
from the would-be-intervenor’s particular interest.” Utah Ass’n of Ctys. v. Clinton, 255 F.3d at
1255. The Tenth Circuit stated:

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[T]he government’s representation of the public interest generally cannot be
assumed to be identical to the individual parochial interest of a particular member
of the public merely because both entities occupy the same posture in the litigation.
In litigating on behalf of the general public, the government is obligated to consider
a broad spectrum of views, many of which may conflict with the particular interest
of the would-be intervenor.
Utah Ass'n of Ctys. v. Clinton, 255 F.3d at 1255-56. Thus, when a prospective intervenor shows
that the “public interest the government is obligated to represent may differ from the would-be
intervenor’s particular interest,” the burden of demonstrating inadequate representation is met.
Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1255.
[T]he Rule’s reference to practical consideration in determining whether an
applicant can intervene implies that those same considerations can justify
limitations on the scope of intervention. If the applicant is granted intervention
because of an interest that may be injured by the litigation, it does not follow that
the intervention must extend to matters not affecting that interest; and just because
no party will adequately represent one particular interest of the applicant does not
mean that the applicant must be allowed to participate in the litigation of other
matters concerning which its interests are adequately represented.
San Juan Cty. v. United States, 503 F.3d at 1189 (emphasis in original).
LAW REGARDING ARTICLE III STANDING
“Article III of the Constitution limits the jurisdiction of federal courts to Cases and
Controversies.” San Juan Cty. v. United States, 503 F.3d at 1171. See U.S. Const. art. III, § 2.
“In general, this inquiry seeks to determine ‘whether [the plaintiff has] such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination.’” Wyoming ex rel. Crank v.
United States, 539 F.3d 1236, 1241 (10th Cir. 2008)(Ebel, J.)(quoting Massachusetts v. EPA, 549
U.S. 497, 539 (2007))(internal quotation marks omitted). “[A] suit does not present a Case or
Controversy unless the plaintiff satisfies the requirements of Article III standing.” San Juan Cty.
v. United States, 503 F.3d at 1171. To establish standing, a plaintiff must show three things: “(1)

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an injury in fact that is both concrete and particularized as well as actual or imminent; (2) a causal
relationship between the injury and the challenged conduct; and (3) a likelihood that the injury
would be redressed by a favorable decision.” Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th
Cir. 2008)(Hartz, J.)(internal quotation marks omitted). Finally, “[s]tanding is determined as of
the time the action is brought.” Smith v. U.S. Court of Appeals, for the Tenth Circuit, 484 F.3d
1281, 1285 (10th Cir. 2007)(Seymour, J.)(quoting Nova Health Sys. v. Gandy, 416 F.3d 1149,
1154 (10th Cir. 2005)(Ebel, J.)).
LAW REGARDING STANDING AND INTERVENTION
Because “standing implicates a court’s jurisdiction, [and] requires a court itself to raise and
address standing before reaching the merits of the case before it,” the requirements of standing
under Article III must be resolved by the court. San Juan Cty. v. United States, 503 F.3d at 1172
(quoting San Juan Cty. v. United States, 420 F.3d 1197, 1205 n.3 (10th Cir. 2005)). The Tenth
Circuit held that “parties seeking to intervene under rule 24(a) or (b) need not establish Article III
standing ‘so long as another party with constitutional standing on the same side as the intervenor
remains in the case.’” San Juan Cty. v. United States, 503 F.3d at 1172 (quoting San Juan Cty. v.
United States, 420 F.3d at 1206).
Since the Tenth Circuit decided San Juan County v. United States, “the Supreme Court
modified our ‘piggyback standing’ rule, holding that an intervenor as of right must ‘meet the
requirements of Article III if the intervenor wishes to pursue relief not requested’ by an existing
party.” Kane Cty. v. United States, 928 F.3d 877, 886-87 (10th Cir. 2019)(quoting Town of
Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1648 (2017)). In Town of Chester, New
York v. Laroe Estates, Inc., “the record was ambiguous whether the intervening plaintiff was
seeking a different form of relief from the existing plaintiff: a separate award of money damages

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against the same defendant in its own name. 137 S.Ct. at 1651-52. Because “[a]t least one
[litigant] must have standing to seek each form of relief requested,” the Supreme Court of the
United States remanded the case for the United States Court of Appeals for the Second Circuit to
determine whether the intervenor, in fact, sought “additional relief beyond” what the plaintiff
requested. Kane Cty. v. United States, 928 F.3d at 886-87 (quoting Town of Chester, New York
v. Laroe Estates, Inc., 137 S. Ct. at 1651-52). With regard to a settlement agreement, the Court
has held that “if the original parties to the case settle all the claims between them and the intervenor
wishes to challenge the settlement, however, the intervenor is then required to establish
independent standing under Article III of the United States Constitution.” WildEarth Guardians
v. United States Forest Serv., 778 F. Supp. 2d 1143, 1151 (D.N.M. 2011)(Browning, J.)(citing
City of Colo. Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1081 (10th Cir.
2009)(“Intervenors must show independent standing to continue a suit if the original parties on
whose behalf intervention was sought settle or otherwise do not remain adverse parties in the
litigation.”)(quoting Dillard v. Chilton County Comm’n, 495 F.3d 1324, 1330, 1336 (11th Cir.
2007)(internal quotation marks omitted)).
LAW REGARDING INTERVENORS IN CONSENT DECREES
A “consent decree,” which is “‘also termed a consent order,’” is “‘[a] court decree that all
parties agree to.’”

Macias v. N.M. Dep’t of Labor, 300 F.R.D. 529, 563 n.29 (D.N.M.

2014)(Browning, J.)(quoting Black’s Law Dictionary at 471 (9th ed. 2009)). Consent decrees are
a way for parties to settle the issues “without having to bear the financial and other costs of
litigating. It has never been supposed that one party -- whether an original party, a party that was
joined later, or an intervenor -- could preclude other parties from settling their own disputes and
thereby withdrawing from litigation.” Local No. 93 v. Cleveland, 478 U.S. at 528-29. An

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intervenor, therefore, is entitled to “present evidence and have its objections heard at the hearings
on whether to approve a consent decree,” but “it does not have power to block the decree merely
by withholding its consent.” Local No. 93 v. Cleveland, 478 U.S. at 529. “Allowing [a party] to
intervene does not mean that it can veto the settlement . . . The district court can still approve the
consent decree if it finds that the settlement is reasonable, fair and consistent with [federal law].”
WildEarth Guardians v. United States Forest Serv., 778 F. Supp. 2d at 1149 (quoting United States
v. Albert Inv. Co., 585 F.3d 1386, 1398 (10th Cir. 2009)(internal citations omitted)). Nonetheless,
parties who choose to resolve litigation through settlement may not dispose
of the claims of a third party, and a fortiori may not impose duties or obligations on
a third party, without that party’s agreement. A court’s approval of a consent decree
between some of the parties therefore cannot dispose of the valid claims of
nonconsenting intervenors; if properly raised, these claims remain and may be
litigated by the intervenor.
Local No. 93 v. Cleveland, 478 U.S. at 529.
LAW REGARDING INTERVENORS IN SETTLEMENT AGREEMENTS
A “consent decree,” which is “ also termed a consent order,’” is “‘[a] court decree that all
parties agree to.’” Macias v. N.M. Dep’t of Labor, 300 F.R.D. 529, 563 n. 29 (D.N.M.
2014)(Browning, J.)(quoting Black's Law Dictionary 471 (9th ed. 2009)). Consent decrees are a
way for parties to settle the issues “without having to bear the financial and other costs of litigating.
It has never been supposed that one party – whether an original party, a party that was joined later,
or an intervenor – could preclude other parties from settling their own disputes and thereby
withdrawing from litigation.” Local No. 93, 478 U.S. at 528-529. An intervenor, therefore, is
entitled to present evidence and have its objections heard at the hearings on whether to approve a
consent decree,” but “it does not have power to block the decree merely by withholding its
consent.” Local No. 93 v. Cleveland, 478 U.S. at 529. “Allowing [a party] to intervene does not

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mean that it can veto the settlement . . . The district court can still approve the consent decree if it
finds that the settlement is reasonable, fair and consistent with [federal law].”

WildEarth

Guardians v. United States Forest Serv., 778 F. Supp. 2d at 1149 (quoting United States v. Albert
Inv. Co., 585 F.3d at 1398 (internal citations omitted)). Nonetheless, “parties who choose to
resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori
may not impose duties or obligations on a third party, without that party’s agreement. A court’s
approval of a consent decree between some of the parties therefore cannot dispose of the valid
claims of nonconsenting intervenors; if properly raised, these claims remain and may be litigated
by the intervenor.” Local No. 93 v. Cleveland, 478 U.S. at 529.
LAW REGARDING LAW OF THE CASE DOCTRINE
“Law of the case is a doctrine that binds the trial court after an appeal.” Lane v. Page, 727
F. Supp. 2d, 1214, 1230 (D.N.M. 2010)(Browning, J.)(citing Clark v. State Farm Mut. Auto. Ins.,
590 F.3d 1134, 1140 (10th Cir. 2009)). In Clark v. State Farm Mutual Automobile Insurance, the
Tenth Circuit stated:
Under the law of the case doctrine, a legal decision made at one stage of litigation,
unchallenged in a subsequent appeal when the opportunity to do so existed,
becomes the law of the case for future stages of the same litigation, and the parties
are deemed to have waived the right to challenge that decision at a later time.
590 F.3d at 1140. Under the law-of-the-case doctrine, “when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same case.”
Dobbs v. Anthem, 600 F.3d 1275, 1279 (10th Cir. 2010). Only “final judgments may qualify as
law of the case.” Poche v. Joubran, 389 F. App’x at 774 (quoting Unioil, Inc. v. Elledge, 962 F.2d
988, 993 (10th Cir. 1992). The doctrine is inapplicable where “a ruling remains subject to
reconsideration.”

Wallace v. United States, 372 F. App’x 826, 828 (10th Cir.

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2010)(unpublished)(quoting Unioil, Inc. v. Elledge, 962 F.2d at 993; citing United States v.
Bettenhausen, 499 F.2d 1223, 1230 (10th Cir. 1974), and Langevine v. Dist. of Columbia, 106
F.3d 1018, 1022-23 (D.C. Cir. 1997)). This rule means that “district courts generally remain free
to reconsider their earlier interlocutory orders.” Been v. O.K. Indus., Inc., 495 F.3d at 1225 (citing
Harlow v. Children’s Hosp., 432 F.3d 50, 55 (1st Cir. 2005); United States v. Smith, 389 F.3d 944,
949 (9th Cir. 2004)(explaining that a district court may review its prior rulings so long as it retains
jurisdiction over the case)). “[O]nce ‘a case is appealed and remanded, the decision of the appellate
court establishes the law of the case and ordinarily will be followed by both the trial court on
remand and the appellate court in any subsequent appeal.’” Kane Cty. v. United States, 928 F.3d
877, 902 (10th Cir. 2019)(quoting Huffman v. Saul Holdings Ltd. P’ship, 262 F.3d 1128, 1132
(10th Cir. 2001)).
The Tenth Circuit has “acknowledged . . . that ‘the rule [of law of the case] is a flexible
one that allows courts to depart from erroneous prior rulings, as the underlying policy of the rule
is one of efficiency, not restraint of judicial power.’” Been v. O.K. Indus., Inc., 495 F.3d 1217,
1225 (10th Cir. 2007)(internal citation omitted)(citing Prairie Band Potawatomi Nation v.
Wagnon, 476 F.3d 818, 823 (10th Cir. 2007)). The Tenth Circuit has stated that this flexibility
means “the doctrine is merely a ‘presumption, one whose strength varies with the circumstances.’”
Been v. O.K. Indus., Inc., 495 F.3d at 1225 (quoting Avitia v. Metro. Club of Chi., Inc., 49 F.3d
1219, 1227 (7th Cir. 1995), and citing Homans v. City of Albuquerque, 366 F.3d 900, 904 (10th
Cir. 2004)(“[T]he doctrine is discretionary rather than mandatory.”)). “If the original ruling was
issued by a higher court, a district court should depart from the ruling only in exceptionally narrow
circumstances.” Been v. O.K. Indus., Inc., 495 F.3d at 1225 (citing McIlravy v. Kerr-McGee Coal
Corp., 204 F.3d 1031, 1035 (10th Cir. 2000)).

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Tenth Circuit caselaw recognizes
three ‘exceptionally narrow’ grounds supporting a district court’s departure from
an appellate court's earlier ruling: (1) when the evidence in a subsequent trial is
substantially different; (2) when controlling authority has subsequently made a
contrary decision of the law applicable to such issues; or (3) when the decision was
clearly erroneous and would work a manifest injustice.”
Been v. O.K. Indus., 495 F.3d 1217, 1222 n.4 (10th Cir. 2007)(quoting McIlravy v. Kerr-McGee
Coal Corp., 204 F.3d at 1035 (quotation omitted)). The Tenth Circuit, however, “has declined to
apply these limitations to rulings revisited prior to entry of a final judgment, concluding that
‘district courts generally remain free to reconsider their earlier interlocutory orders.’” Rimbert v.
Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011)(quoting Been v. O.K. Indus., 495 F.3d at
1225). “This principle remains true even when a case is reassigned from one judge to another in
the same court: ‘[T]he [law-of-the-case] doctrine does not bind a judge to following rulings in the
same case by another judge of coordinate jurisdiction as long as prejudice does not ensue to the
party seeking the benefit of the doctrine.’” Rimbert v. Eli Lilly & Co., 647 F.3d at 1251 (quoting
United States v. Johnson, 12 F.3d 1540, 1544 (10th Cir. 1993)). “The relevant prejudice is limited
to lack of sufficient notice that one judge is revisiting the decision of a prior judge and the
opportunity to be heard with respect to the new ruling.” United States v. Johnson, 12 F.3d at 1544.
LAW REGARDING DUTY TO INVESTIGATE BEFORE MAKING AN ARREST
“[T]he Fourth Amendment requires officers to reasonably interview witnesses readily
available at the scene, investigate basic evidence, or otherwise inquire if a crime has been
committed at all before invoking the power of warrantless arrest and detention.” Romero v. Fay,
45 F.3d at 1476-77. Police officers “may not ignore easily accessible evidence and thereby
delegate their duty to investigate [to others].” Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259

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(10th Cir. 1998). However, “[o]nce probable cause is established, an officer is not required to
continue to investigate for exculpatory evidence before arresting a suspect.” Garcia v. Casuas, No.
CIV 11-0011 JB/RHS, 2011 WL 7444745, at *49 (D.N.M. Dec. 8, 2011)(Browning, J.)(citing
Cortez v. McCauley, 478 F.3d 1108, 1121 n.18 (10th Cir. 2007)).
In Romero v. Fay, the Tenth Circuit confronted the issue of when an officer must conduct
further investigation before arresting an individual.

In that case, law enforcement officers

interviewed two individuals -- Stella Gutierrez and Manuel Duran -- who implicated the plaintiff
in a murder. See 45 F.3d at 1474. Approximately four hours later, without conducting additional
investigation or obtaining a warrant, an officer arrested the plaintiff for murder. See 45 F.3d
at 1474. After he was taken into custody, the plaintiff told the officer that he was innocent and that
he had an alibi. See 45 F.3d at 1474. The plaintiff stated that three individuals would establish
that he was asleep at home when the murder occurred. See 45 F.3d at 1474. The officer refused
the plaintiff’s offer of names of alibi witnesses and said that the witnesses “were of little
significance because they would lie to protect” the plaintiff. 45 F.3d at 1474. The officer never
interviewed the alibi witnesses. See 45 F.3d at 1474. The plaintiff was incarcerated for three
months before the government dismissed the case and he was released. See 45 F.3d at 1474.
The plaintiff brought a 42 U.S.C. § 1983 action for, among other things, violations of his
Fourth Amendment rights. See Romero v. Fay, 45 F.3d at 1474. The plaintiff argued that,
regardless whether the officers’ interviews of Gutierrez and of Duran established probable cause,
under clearly established law, a reasonable officer would have investigated his alibi witnesses
before arresting him. See 45 F.3d at 1476. The Tenth Circuit disagreed, in an opinion that the
Honorable Bobby R. Baldock, now-Senior United States Circuit Judge for the Tenth Circuit,
authored, and the Honorable Deanall Reece Tacha, former-United States Circuit Judge for the

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Tenth Circuit, and the Honorable Monroe G. McKay, former-United States Circuit Judge for the
Tenth Circuit joined. See 45 F.3d at 1476. The Tenth Circuit stated that the Fourth Amendment
requires officers to only “reasonably interview witnesses readily available at the scene, investigate
basic evidence, or otherwise inquire if a crime has been committed at all before invoking the power
of warrantless detention.” 45 F.3d at 1476-77. The Tenth Circuit determined:
Once [the defendant] concluded based on the facts and information known
to him that probable cause existed to arrest Plaintiff for the murder of David
Douglas, his failure to question Plaintiff’s alibi witnesses prior to the arrest did not
negate probable cause. Thus, [the defendant’s] failure to investigate Plaintiff’s alibi
witnesses prior to arrest did not constitute a constitutional violation.
45 F.3d at 1478.
In Baptiste v. J.C. Penney Co., officers arrested the plaintiff for shoplifting after:
(i) receiving reports from store security guards that they witnessed her shoplifting on store
surveillance; and (ii) watching a video of the surveillance footage on which the security officers
relied in reaching their conclusion -- which supported the plaintiff’s story that she had not stolen
anything. See 147 F.3d at 1254-55. The Tenth Circuit, in an opinion that Judge Murphy, authored,
and the Honorable Stephen Hale Anderson, Senior United States Circuit Judge for the Tenth
Circuit, and the Honorable James Kenneth Logan, former United States Circuit Judge for the Tenth
Circuit joined, concluded that qualified immunity did not apply. See 147 F.3d at 1257-59. The
Tenth Circuit asserted that the security guards’ allegations were based solely on the plaintiff’s
conduct, “which was memorialized in its entirety on the videotape.” 147 F.3d at 1257. The Tenth
Circuit stated that the police officers “viewed the very same conduct on the videotape, which this
court has concluded failed to establish probable cause.” 147 F.3d at 1257. The Tenth Circuit held

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that, consequently, “it was . . . not reasonable for the officers to rely on the security guards’
allegations.” 147 F.3d at 1257. The Tenth Circuit added that
police officers may not ignore easily accessible evidence and thereby delegate their
duty to investigate and make an independent probable cause determination based
on that investigation. . . . Here, [the defendants] did conduct some investigation by
viewing the videotape and questioning [the plaintiff]. They argue, however, that
they should be allowed to rely on the statement of the guards for probable cause to
arrest. Because the officers knew that the allegations of the guards were based on
observations of conduct captured and preserved on an available videotape, to credit
this argument would allow a wholesale delegation of police officers’ duty to
investigate and make an independent probable cause determination.
Baptiste v. J.C. Penney Co., 147 F.3d at 1259.
In Cortez v. McCauley, officers responded to a call from a nurse stating that a woman had
brought her two-year-old daughter to the hospital asserting that the child had complained that her
babysitter’s boyfriend had molested her. See 478 F.3d at 1113. Without (i) interviewing the girl,
her mother, the nurse, or the attending physician; (ii) inspecting the girl’s clothing for signs of
sexual assault; or (iii) waiting for the results of the child’s medical examination, the officers
arrested the boyfriend. See 478 F.3d at 1113. The Tenth Circuit, in an en banc opinion that the
Honorable Paul Joseph Kelly Jr., now-Senior United States Circuit Judge for the Tenth Circuit,
authored, explained that,
whether we view it as a need for more pre-arrest investigation because of
insufficient information, . . . or inadequate corroboration, what the officers had fell
short of reasonably trustworthy information indicating that a crime had been
committed by [the defendant]. See BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.
1986)(“A police officer may not close her or his eyes to facts that would help clarify
the circumstances of an arrest. Reasonable avenues of investigation must be
pursued especially when, as here, it is unclear whether a crime had even taken
place.”). Based on the facts above, [the defendant] was arrested without probable
cause.

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Cortez v. McCauley, 478 F.3d at 1116 (footnotes and citations omitted). The Tenth Circuit further
held that
it was established law that “the probable cause standard of the Fourth Amendment
requires officers to reasonably interview witnesses readily available at the scene,
investigate basic evidence, or otherwise inquire if a crime has been committed at
all before invoking the power of warrantless arrest and detention.” Romero[ v.
Fay], 45 F.3d at 1476-77 (footnote omitted); see also Baptiste v. J.C. Penney, Co.,
147 F.3d . . . [at] 1259 . . . (“[P]olice officers may not ignore easily accessible
evidence and thereby delegate their duty to investigate and make an independent
probable cause determination based on that investigation.”). In the present case,
witnesses were readily available for interviews, physical evidence was available,
and a medical diagnosis was forthcoming. Defendants, however, . . . conducted no
investigation. Instead, the Defendants relied on the flimsiest of information
conveyed by a telephone call.
Cortez v. McCauley, 478 F.3d at 1117-18 (footnotes omitted). The Tenth Circuit concluded,
therefore, that qualified immunity did not apply. See Cortez v. McCauley, 478 F.3d at 1118-22.
In Garcia v. Casuas, a detective for the City of Rio Rancho, New Mexico -- Monica
Casuas -- arrested the plaintiff, Mitchell Garcia, for sexual penetration of a minor. See 2011 WL
7444745, at *8. The plaintiff was ultimately exonerated, and subsequently filed a § 1983 claim
against the arresting officer and Rio Rancho for, among other things, unlawfully arresting him in
violation of his Fourth Amendment rights. See 2011 WL 7444745, at *12. The Court concluded
that the officer had probable cause to arrest the plaintiff based on information gleaned from other
officers’ interviews of the plaintiff, the victim -- K.J., the victim’s mother -- Audrey Odom, and a
witness at the scene on the night of the incident -- Jennifer Katz. See 2011 WL 7444745, at *4346. Garcia argued that, by failing to re-interview Odom and Katz, and instead choosing to rely on
the other officers’ interviews of them, Casuas “fail[ed] to interview readily accessible witnesses.”
2011 WL 7444745, at *15. Garcia contended that, moreover, Casuas should have known that
failing to personally interview him, Odom, Katz, K.J., and Katz’ neighbors before arresting him

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violated his constitutional rights. See 2011 WL 7444745, at *15. Garcia argued that, had Casuas
interviewed him before arresting him, she would have discovered Katz’ and Odom’s motivations
to lie. See 2011 WL 7444745, at *15.
Finding that the defendant’s failure to conduct further investigation before arresting the
plaintiff did not constitute a Fourth Amendment violation, the Court explained:
Although Garcia cites Romero v. Fay and cases from several other circuits
for the general proposition that officers must interview witnesses at the scene,
Garcia points to no case law which would establish that, after the officers at the
scene have interviewed witnesses, the Constitution requires the investigating
detective to interview those witnesses again. . . . Here, the responding police
officers . . . interviewed every adult alleged to be involved in the incident and
briefly spoke with K.J. . . .
Garcia also states that, if Casuas had investigated further, she would have
known that there was no semen on the bedding, and she would have discovered
Katz’ and Odom’s motivation if she spoke to him. . . . The Tenth Circuit’s
discussion of probable cause in Romero v. Fay also undercuts Garcia’s assertion
that Casuas was required to do more after [K.J.’s interview] solidified the existence
of probable cause. In Romero v. Fay, the Tenth Circuit held:
Plaintiff contends that regardless of whether the statements by
Duran and Guiterrez supplied probable cause for Defendant Fay to
arrest Plaintiff, under clearly established law a reasonable police
officer would have investigated his alibi witnesses before arresting
him, and the exculpatory information possessed by them would have
negated the probable cause to arrest. We disagree.
45 F.3d at 1466. In Baptiste v. J.C. Penney Co., the Tenth Circuit also recognized
that “officers are not required to conduct full investigations before making an
arrest.” 147 F.3d at 1257 n.8.
....
These cases establish that Casuas was not required to speak to [Katz’
neighbors], because they did not appear to be material witnesses. Garcia has made
no allegations and presented no facts suggesting that the neighbors were ever
around K.J. Garcia has also not presented any facts demonstrating that [the
neighbors] have shed light on the motivations of Katz or Odom. Garcia only

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speculates that Casuas might have found something. An officer is not required to
exhaust every possible lead to satisfy the Fourth Amendment. In Romero v. Fay,
the Tenth Circuit held:
Once Defendant Fay concluded based on the facts and information
known to him that probable cause existed to arrest Plaintiff for the
murder of David Douglas, his failure to question Plaintiff’s alibi
witnesses prior to the arrest did not negate probable cause. Thus,
Defendant Fay’s failure to investigation Plaintiff’s alibi witnesses
prior to arrest did not constitute a constitutional violation.
45 F.3d at 1478.
....
Furthermore, Garcia’s other statements belie the fact that, if Casuas had
interviewed him before his arrest, he would have explained that Katz and Odom
were biased or trying to frame him. When [another officer] interviewed Garcia on
the night of the incident, he asked Garcia whether Katz and Odom had a reason to
beat him up, and informed him that he was being accused of choking
K.J. . . . Garcia responded that Katz and Odom had no reason to beat him up, and
denied hurting K.J., never mentioning that Katz and Odom might have beat him up
or encouraged K.J. to accuse him because they were romantically interested in
him. . . . . During his interrogation after his arrest, Garcia never mentioned that
Katz and Odom might have improper motives. The cases that Garcia cites establish
only that the police may not ignore available material witnesses. Here, Thacker
spoke with Garcia; Garcia denied doing wrong and never related that he may have
been framed. Garcia presents no cases, and the Court could find none, suggesting
that Casuas was required to repeat the steps other officers had already taken and reinterview all witnesses. . . . Finally, waiting for the laboratory results would not
have substantially altered the probable-cause determination, because, while the
New Mexico Department of Public Safety Forensic Laboratory found no semen, it
does not have the capabilities to detect the presence of urine in or on a
substance . . . .
Once probable cause is established, an officer is not required to continue to
investigate for exculpatory evidence before arresting a suspect. See Cortez v.
McCauley, 478 F.3d at 1121 n.18 (citing Baker v. McCollan, 443 U.S. 137, 145-46
(1979)). The Court has already determined that Casuas had probable cause to arrest
Garcia and that there was a substantial basis for the issuance of the arrest warrant
after the safe-house interview. Casuas was not required to investigate further after
that determination.

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Garcia v. Casuas, 2011 WL 7444745, at *47-49 (alterations added).
LAW REGARDING EXCESSIVE FORCE
An excessive force claim “must . . . be judged by reference to the specific constitutional
standard which governs that right, rather than to some generalized ‘excessive force’ standard.”
Graham v. Connor, 490 U.S. at 394. The Supreme Court has long held that all claims of excessive
force in the context of an arrest or detention should be analyzed under the Fourth Amendment’s
reasonableness standard. See Graham v. Connor, 490 U.S. at 395 (“[A]ll claims that law
enforcement officers have used excessive force -- deadly or not -- in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard . . . .”). The Supreme Court recognizes that “police
officers are often forced to make split-second judgments -- in circumstances that are tense,
uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular
situation.” Graham v. Connor, 490 U.S. at 397. Consequently, “the reasonableness of the officer’s
belief as to the appropriate level of force should be judged from that on-scene perspective.”
Saucier v. Katz, 533 U.S. at 205. When an officer moves for qualified immunity on an excessiveforce claim, “a plaintiff is required to show that the force used was impermissible (a constitutional
violation) and that objectively reasonable officers could not have thought the force constitutionally
permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th
Cir. 2007).

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1. Relevant Factors in Determining Whether Officers’ Actions Were Objectively
Reasonable.
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when
determining whether force was objectively reasonable. In Estate of Larsen v. Murr, 511 F.3d 1255
(10th Cir. 2008), the Tenth Circuit stated:
In assessing the degree of threat facing officers, then, we consider a number of nonexclusive factors. These include (1) whether the officers ordered the suspect to
drop his weapon, and the suspect’s compliance with police commands; (2) whether
any hostile motions were made with the weapon towards the officers; (3) the
distance separating the officers and the suspect; and (4) the manifest intentions of
the suspect.
511 F.3d at 1260. In Weigel v. Broad, 544 F.3d at 1143, the Tenth Circuit also provided:
Reasonableness is evaluated under a totality of the circumstances approach which
requires that we consider the following factors: the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.
544 F.3d at 1151-52 (citations omitted). The court assesses “objective reasonableness based on
whether the totality of the circumstances justified the use of force, and pay careful attention to the
facts and circumstances of the particular case.”

Estate of Larsen v. Murr, 511 F.3d at 1260

(internal quotation marks omitted).
2.

Least- or Less-forceful Alternatives in Excessive-Force Cases.

To avoid a “Monday morning quarterback” approach, the Fourth Amendment does not
require the use of the least, or even a less, forceful or intrusive alternative to gain custody, so long
as the use of force is reasonable under Graham v. Connor. The Fourth Amendment requires only
that the defendant officers chose a “reasonable” method to end the threat that the plaintiff posed
to the officers in a force situation, regardless the availability of less intrusive alternatives. Graham
v. Connor, 490 U.S. at 397.

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In Michigan Department of State Police v. Sitz, 496 U.S. 444, 450-51 (1990), the Supreme
Court examined a case addressing the constitutionality of highway sobriety checkpoints and stated
that Brown v. Texas, 443 U.S. 47 (1979),
was not meant to transfer from politically accountable officials to the courts the
decision as to which among reasonable alternative law enforcement techniques
should be employed to deal with a serious public danger. Experts in police science
might disagree over which of several methods of apprehending drunken drivers is
preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice
among such reasonable alternatives remains with government officials who have a
unique understanding of, and a responsibility for, limited public resources,
including a finite number of police officers.
496 U.S. at 453-54. See Illinois v. Lafayette, 462 U.S. 640, 647 (1983)(“[T]he reasonableness of
any particular government activity does not necessarily turn on the existence of alternative ‘less
intrusive’ means.”).
In United States v. Sokolow, 490 U.S. 1 (1989), the Supreme Court examined the Terry15
stop of a suspected drug courier in an airport. The Supreme Court rejected Sokolow’s contention
that the arresting officers were “obligated to use the least intrusive means available to dispel their
suspicions that he was smuggling narcotics.” 490 U.S. at 11. Instead, the Supreme Court held:
“The reasonableness of the officer’s decision to stop a suspect does not turn on the availability of
less intrusive investigatory techniques. Such a rule would unduly hamper the police’s ability to
make swift, on-the-spot decisions . . . and require courts to indulge in unrealistic second guessing.”
United States v. Sokolow, 490 U.S. at 11 (internal quotations and citations omitted). Similarly, in
United States v. Sharpe, 470 U.S. 675, 686-87 (1985), the Supreme Court stated that
a creative judge engaged in post hoc evaluation of police conduct can almost always
imagine some alternative means by which the objectives of police might have been
accomplished. But “[t]he fact that the protection of the public might, in the abstract,

15

Terry v. Ohio, 392 U.S. 1 (1968).

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have been accomplished by less intrusive means does not, by itself, render the
search unreasonable.”
470 U.S. at 686-87 (quoting Cady v. Dombrowski, 413 U.S. 433, 447 (1973)).
In Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005), the Tenth Circuit
discussed when a police dog’s use is objectively reasonable and whether the defendant Lehocky’s
actions violated “well established law enforcement standards.” It rejected the plaintiff’s argument
that certain testimony “should have been admitted since it would have been helpful to the jury in
determining whether Lehocky used a reasonable amount of force.” 399 F.3d at 1222. In so
holding, the Tenth Circuit explained:
As the district court correctly noted, the Fourth Amendment “do[es] not require
[police] to use the least intrusive means in the course of a detention, only reasonable
ones.” United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994).
Similarly, “violations of state law and police procedure generally do not give rise
to a 1983 claim” for excessive force. Romero v. Bd. of County Comm’rs, 60 F.3d
702, 705 (10th Cir. 1995); see also Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir.
1995)(holding that “violation of a police department regulation is insufficient for
liability under section 1983” for excessive force). Both of these principles of our
Fourth Amendment jurisprudence stem from the proper perspective from which to
evaluate the conduct of a police officer -- that “of a reasonable officer on the scene,
acknowledging that the officer may be forced to make split-second judgments in
certain difficult circumstances.” Olsen [v. Layton Hills Mall], 312 F.3d [1304,]
1314 [(10th Cir. 2002)]. Together, they prevent the courts from engaging in
“unrealistic second guessing of police officer’s decisions.” [United States v.]
Melendez-Garcia, 28 F.3d at 1052
Here, the only issue before the jury was whether Lehocky acted as a
“reasonable officer” when he ordered his police dog to apprehend Marquez. In
making this determination, the issues of whether Lehocky used the minimum
amount of force to apprehend Marquez and whether Lehocky violated some “well
established police procedure” are only tangentially related. This is because even if
it found Lehocky used more than the minimum amount of force necessary and
violated police procedure, the jury could nonetheless find he acted reasonably.
[United States v.] Melendez-Garcia, 28 F.3d at 1052; Romero [v. Bd. of Cty.
Comm’rs of Cty. Lake, 60 F.3d at 705].
Marquez v. City of Albuquerque, 399 F.3d at 1222.

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In United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994), the Tenth Circuit
stated: “We must avoid unrealistic second guessing of police officers’ decisions in this regard and
thus do not require them to use the least intrusive means in the course of a detention, only a
reasonable ones.” 28 F.3d at 1052 (internal quotations omitted). See Medina v. Cram, 252 F.3d
1124, 1133 (10th Cir. 2001)(stating that “the reasonableness standard does not require that officers
use alternative less intrusive means” (internal quotation marks omitted)(citation omitted));
Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996)(“[T]he Fourth Amendment does not
require officers to use the best technique available as long as their method is reasonable under the
circumstances.”); Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995)(“[T]he Fourth Amendment
inquiry focuses not on what the most prudent course of action may have been or whether there
were other alternatives available, but instead whether the seizure actually effectuated falls within
the range of conduct which is objectively ‘reasonable’ under the Fourth Amendment.”); Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994)(“Requiring officers to find and choose the least intrusive
alternative would require them to exercise superhuman judgment . . . . Officers thus need not avail
themselves of the least intrusive means of responding to an exigent situations; they need only act
within that range of conduct we identify as reasonable.”); Menuel v. City of Atlanta, 25 F.3d 990,
996-97 (11th Cir. 1994)(“[T]he Fourth Amendment does not require officers to use the least
intrusive alternatives in search and seizure cases. The only test is whether what the police officers
actually did was reasonable.”); Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994)(“We do not
believe the Fourth Amendment requires the use of the least or even a less deadly alternative so
long as the use of force is reasonable under Garner v. Tennessee [sic] and Graham v. Connor.”).
“Thus, the clearly established law in the Tenth Circuit holds that the Fourth Amendment
does not require an officer to use the least or a less forceful alternative.” Jonas v. Bd. of Comm’rs

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of Luna Cty., 699 F. Supp. 2d 1284, 1296 (D.N.M. 2010)(Browning, J.). See, e.g., Blossom v.
Yarbrough, 429 F.3d at 968 (quoting Medina v. Cram, 252 F.3d at 1133)(“It is well settled that
‘the reasonableness standard does not require that officers use alternative, less intrusive means’
when confronted with a threat of serious bodily injury.”); Jiron v. City of Lakewood, 392 F.3d
410, 414 (10th Cir. 2004)(stating that, in police-shooting case, officers are not required to use
alternative, less intrusive means if their conduct is objectively reasonable). See also Roy v.
Inhabitants Lewiston, 42 F.3d 691, 695 (1st Cir. 1994)(“[I]n close cases, a jury does not
automatically get to second guess these life and death decisions, even though plaintiff has an expert
and a plausible claim that the situation could better have been handled differently.”); Diaz v.
Salazar, 924 F. Supp. 1088, 1100 (D.N.M. 1996)(Hansen, J.). Moreover, the reasonableness
standard does not require that officers use “alternative ‘less intrusive’ means.”

Illinois v.

Lafayette, 462 U.S. at 647-48. The Court has also rejected the consideration of a less intrusive
alternative to end a threat. See Chamberlin v. City of Albuquerque, No. CIV 02-0603, 2005 WL
2313527, at *2 (D.N.M. July 31, 2005)(Browning, J.)(precluding the plaintiff’s police procedures
expert from testifying at trial regarding alternative less intrusive means).
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the vigorous exercise of official
authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects federal
and state officials from liability for discretionary functions, and from ‘the unwarranted demands
customarily imposed upon those defending a long drawn-out lawsuit.’” Roybal v. City of
Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April 28,
2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Under § 1983, a

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plaintiff may seek money damages from government officials who have violated his or her
constitutional or statutory rights. To ensure, however, that fear of liability will not “unduly inhibit
officials in the discharge of their duties,” Anderson v. Creighton, 483 U.S. 635, 638 (1987), the
officials may claim qualified immunity; so long as they have not violated a “clearly established”
right, the officials are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. at 818.
That means a court can often avoid ruling on the plaintiff’s claim that a particular
right exists. If prior case law has not clearly settled the right, and so given officials
fair notice of it, the court can simply dismiss the claim for money damages. The
court need never decide whether the plaintiff’s claim, even though novel or
otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692, 705 (2011).
Qualified immunity shields government officials from liability where “‘their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(quoting Harlow v. Fitzgerald, 457
U.S. at 818). Qualified immunity also shields officers who have “reasonable, but mistaken
beliefs,” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier
v. Katz, 533 U.S. at 205. When a defendant asserts qualified immunity, the plaintiff must
demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights;
and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009); Pueblo of Pojoaque v. New Mexico, 214 F. Supp.
3d 1028, 1079 (D.N.M. 2016)(Browning, J.).
1.

Procedural Approach to Qualified Immunity.

The Supreme Court has provided the proper procedure for lower courts to evaluate a
qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts
“should be permitted to exercise their sound discretion in deciding which of the two prongs of the

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qualified immunity analysis should be addressed first in light of the circumstances of the particular
case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory,
Saucier v. Katz’ protocol -- by which a court first decides if the defendant’s actions violated the
Constitution and then determines if the right violated was clearly established -- will often be
beneficial. See Pearson v. Callahan, 555 U.S. at 241. In rejecting the prior mandatory approach,
the Supreme Court recognizes that “[t]here are cases in which it is plain that a constitutional right
is not clearly established but far from obvious whether in fact there is such a right,” and that such
an approach burdens district courts and Courts of Appeals with “what may seem to be an
essentially academic exercise.” 555 U.S. at 237. The Supreme Court also recognizes that the prior
mandatory approach “departs from the general rule of constitutional avoidance and runs counter
to the older, wiser judicial counsel not to pass on questions of constitutionality unless such
adjudication is unavoidable.” 555 U.S. at 241 (alterations omitted). See Reichle v. Howards, 566
U.S. 658, 664 (2012)(affirming Pearson v. Callahan’s procedure and noting that deciding qualified
immunity issues on the basis of a right being not “clearly established” by prior caselaw “comports
with our usual reluctance to decide constitutional questions unnecessarily”).
The Supreme Court recognizes seven circumstances where district courts “should address
only”16 the clearly established prong of the qualified immunity analysis: when (i) the first,

16

In Camreta v. Greene, the Supreme Court, somewhat confusingly, states that there are
seven circumstances in which the district courts “should address only” the clearly established
prong, but, in the same sentence, notes that deciding the violation prong is left “to the discretion
of the lower courts.” Camreta v. Greene, 563 U.S. at 707. In Kerns v. Bader, 663 F.3d 1173
(10th Cir. 2011), the Tenth Circuit interpreted Camreta v. Greene to mean that district courts are
restricted from considering the violation prong in seven particular circumstances. See Kerns v.
Bader, 663 F.3d at 1180-81. The Supreme Court, however, has not stressed the seven
circumstances as mandatory. Instead, it has recently reaffirmed only that lower courts “should
think hard, and then think hard again before addressing both qualified immunity and the merits
of an underlying constitutional claim.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 n.7

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constitutional violation question “is so factbound that the decision provides little guidance for
future cases”; (ii) “it appears that the question will soon be decided by a higher court”;
(iii) deciding the constitutional question requires “an uncertain interpretation of state law”;
(iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the
. . . claim . . . may be hard to identify”; (v) tackling the first element “may create a risk of bad
decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks “bad
decisionmaking,” because the court is firmly convinced that the law is not clearly established and
is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine
of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question
when “‘it is plain that a constitutional right is not clearly established but far from obvious whether
in fact there is such a right.’” Kerns v. Bader, 663 F.3d at 1180-81 (quoting Pearson v. Callahan,
555 U.S. at 236-42). Regarding the last of these seven circumstances, the Supreme Court has
clarified that courts may “avoid avoidance” and address the first prong before the second prong in
cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged
conduct is necessary, and the conduct is likely to face challenges only in the qualified immunity
context. Camreta v. Greene, 563 U.S. at 706-07. See Kerns v. Bader, 663 F.3d at 1181.17 “Courts

(2018). This language suggests that the inquiry is still discretionary, although the Court’s
discretion should be exercised carefully.
17

In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was
not entitled to qualified immunity, noting that the Court “analyzed both aspects of the qualified
immunity test before agreeing” with the plaintiff that the qualified immunity defense did not
protect the officer. 663 F.3d at 1183. In reversing, the Tenth Circuit stated:
Because we agree with Sheriff White on the latter (clearly established law)
question, we reverse without addressing the former (constitutional violation)
question. And we pursue this course because doing so allows us to avoid
rendering a decision on important and contentious questions of constitutional law

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with the attendant needless (entirely avoidable) risk of reaching an improvident
decision on these vital questions.
663 F.3d at 1183-84. See Sanchez v. Labate, 564 F. App’x 371, 372 (10th Cir. 2014)(“If
dispositive of the claim, we ordinarily need address only the second element of qualified
immunity, that is, whether the law supporting a constitutional violation was clearly established.”
(citing Kerns v. Bader, 663 F.3d at 1180)). The Tenth Circuit did not analyze whether the officer
violated the plaintiff’s constitutional rights and stated that guidance on the particular
constitutional issue would be more appropriate in a case not involving qualified immunity:
“Neither do we doubt that the scope of the Constitution’s protection for a patient’s hospital
records can be adequately decided in future cases where the qualified immunity overlay isn’t in
play (e.g., through motions to suppress wrongly seized records or claims for injunctive or
declaratory relief).” 663 F.3d at 1187 n.5.
The Tenth Circuit does not always undertake the “clearly established” analysis before the
constitutional violation analysis. See, e.g., Savage v. Troutt, 774 F. App’x 574, 579 (10th Cir.
2019); Rudnick v. Raemisch, 774 F. App’x 446, 449 (10th Cir. 2019); Serrano v. United States,
766 F. App’x at 565. Since Kerns v. Bader, the Tenth Circuit has commented:
Although it is within the court’s sound discretion to determine which of the two
elements to address first, Pearson, 555 U.S. at 236 . . . , “the Supreme Court has
recently instructed that courts should proceed directly to, ‘should address only,’
and should deny relief exclusively based on the second element” in certain
circumstances, Kerns, 663 F.3d at 1180 (quoting Camreta v. Greene, 563 U.S.
[at] 707 . . . .)).
Serrano v. United States, 766 F. App’x at 565. In Serrano v. United States, the Tenth Circuit
stated that the district court addressed only the constitutional violation prong after concluding
that Serrano had not established a constitutional violation and approved the district court’s
analysis, because the district court “also had to consider the reasonableness of the team’s use of
force for purposes of Serrano’s [Federal Tort Claim Act, 28 U.S.C. §§ 1291, 1346, 1402, 240102, 2411-12, 2671-60,] claims.” Serrano v. United States, 766 F. App’x at 565.
The Court believes, as a general rule, that the constitutional violation analysis should
receive more attention. On remand from Kerns v. Bader, the Court stated:
While the Court must faithfully follow the Tenth Circuit’s decisions and opinions,
the Court is troubled by [the Tenth Circuit’s] statement and the recent trend of the
Supreme Court’s hesitancy in § 1983 actions to address constitutional violations.
A Reconstruction Congress, after the Civil War, passed § 1983 to provide a civil
remedy for constitutional violations. See Mitchum v. Foster, 407 U.S. 225, 23839 (1972). In Mitchum v. Foster, the Supreme Court explained:
Section 1983 was originally § 1 of the Civil Rights Act of 1871 . . .
and was enacted for the express purpose of “enforc(ing) the
Provisions of the Fourteenth Amendment.” The predecessor of

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§ 1983 was thus an important part of the basic alteration in our
federal system wrought in the Reconstruction era through federal
legislation and constitutional amendment.
407 U.S. at 238-39. Congress did not say it would remedy only violations of
“clearly established” law, but that
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
42 U.S.C. § 1983. The Supreme Court established the qualified immunity defense
in Pierson v. Ray, 386 U.S. 547 (1967), and held that officials were not liable for
constitutional violations where they reasonably believed that their conduct was
constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why
Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24
B.Y.U. J. Pub. L. 313, 329 (2010). The Supreme Court first introduced the
“clearly established” prong in reference to an officer’s good faith and held that a
compensatory award would only be appropriate if an officer “acted with such an
impermissible motivation or with such disregard of the [individual’s] clearly
established constitutional rights that his action cannot reasonably be characterized
as being in good faith.” Wood v. Strickland, 420 U.S. 308, 322 (1975). In
Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the
clearly established prong became a part of the qualified immunity test. See 457
U.S. at 818 (“We therefore hold that government officials performing
discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights.”). It seems ironic that the federal courts would restrict a
congressionally mandated remedy for constitutional violations -- presumably the
rights of innocent people -- and discourage case law development on the civil side
-- and restrict case law development to motions to suppress, which reward only
the guilty and is a judicially created, rather than legislatively created, remedy.
Commentators have noted that, “[o]ver the past three decades, the Supreme Court
has drastically limited the availability of remedies for constitutional violations in”
exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil

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should think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel

litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way
Stop, 62 Ala. L. Rev. 687, 687 (2011). Some commentators have also encouraged
the courts to drop the suppression remedy and the legislature to provide more -not less -- civil remedies for constitutional violations. See Christopher Slobogin,
Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 39091 (1999)(“Behavioral theory suggests that the exclusionary rule is not very
effective in scaring police into behaving . . . . These theories also suggest that a
judicially administered damages regime . . . would fare significantly better at
changing behavior at an officer level.”); Hon. Malcolm R. Wilkey, Constitutional
Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing
the exclusionary rule and recommending alternatives). In Hudson v. Michigan,
547 U.S. 586 (2006), the Supreme Court noted that civil remedies were a viable
alternative to a motion to suppress when it held that the exclusionary rule was
inapplicable to cases in which police officers violate the Fourth Amendment when
they fail to knock and announce their presence before entering. See 547 U.S. at
596-97. Rather than being a poor or discouraged means of developing
constitutional law, § 1983 seems the better and preferable alternative to a motion
to suppress. It is interesting that the current Supreme Court and Tenth Circuit
appear more willing to suppress evidence and let criminal defendants go free, than
have police pay damages for violations of innocent citizens’ civil rights. It is odd
that the Supreme Court has not adopted a clearly established prong for
suppression claims; it seems strange to punish society for police violating unclear
law in criminal cases, but protect municipalities from damages in § 1983 cases.
Kerns v. Bd. of Comm’rs, 888 F. Supp. 2d 1176, 1224 n.36 (D.N.M. 2012)(Browning, J.),
abrogated on other grounds as recognized by Ysasi v. Brown, 3 F. Supp. 3d 1088, 1130-31 n.24
(D.N.M. 2014)(Browning, J.). See Richard E. Myers, Fourth Amendment Small Claims Court,
10 Ohio St. J. Crim. L. 571, 590-97 (2013)(arguing that municipalities should establish smallclaims courts to adjudicate police officers’ Fourth Amendment violations and award monetary
judgments). Since Kerns v. Board of Commissioners, the Court has also observed:
The unfortunate result of Kerns v. Bader is that nuanced factual
distinctions can create a near-insurmountable hurdle for plaintiffs attempting to
overcome a qualified immunity defense without a precisely analogous precedent.
A secondary consequence of Kerns v. Bader is that constitutional
protections are unlikely to develop in the Tenth Circuit beyond where they stood
at the time the case was decided.
A.M. ex rel. Youngers v. N.M. Dep’t of Health, 108 F. Supp. 3d 963, 1029 (D.N.M.
2015)(Browning, J.).

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questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of
the case.’” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v. Callahan, 555 U.S.
at 236-37).18 See Camreta v. Greene, 563 U.S. at 707. The Tenth Circuit will remand a case to
the district court for further consideration when the district court has given only cursory treatment
to qualified immunity’s clearly established prong. See Kerns v. Bader, 663 F.3d at 1182; Pueblo
of Pojoaque v. New Mexico, 214 F. Supp. 3d at 1082-83.
2.

Clearly Established Rights.

To determine whether a right was clearly established, a court must consider whether the
right was sufficiently clear that a reasonable government employee would understand that what he
or she did violated a right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327
(10th Cir. 2007). “A clearly established right is generally defined as a right so thoroughly
developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and
‘unquestioned.’”

Lobozzo v. Colo. Dep’t of Corr., 429 F. App’x 707, 710 (10th Cir.

2011)(unpublished)19(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).

18

The appellate courts have little appreciation for how hard it is to do a clearly established
prong review first without looking -- closely and thoroughly -- at whether there is a
constitutional right and whether there is a violation. It is difficult to review the facts, rights, and
alleged violations in the comparative cases without looking at the facts, rights, and alleged
violations on the merits in the case before the Court. Pearson v. Callahan sounds like a good
idea in theory, but it does not work well in practice. The clearly established prong is a
comparison between the case before the Court and previous cases, and Pearson v. Callahan
suggests that the Court can compare before the Court fully understands what it is comparing. In
practice, Saucier v. Katz works better.
19

Lobozzo v. Colorado Department of Correction, is an unpublished opinion, but the
Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the
case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions are not precedential,
but may be cited for their persuasive value”). The Tenth Circuit has stated: “In this circuit,
unpublished orders are not binding precedent, . . . and . . . citation to unpublished opinions is not
favored.... However, if an unpublished opinion . . . has persuasive value with respect to a

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“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d at 923. “In
determining whether the right was ‘clearly established,’ the court assesses the objective legal
reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of
the right [were] sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.
2001)(alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202). The Supreme Court has
clarified that qualified immunity’s clearly established prong is a very high burden for the plaintiff:
“A Government official’s conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. at
741. “In other words, ‘existing precedent must have placed the statutory or constitutional question
beyond debate.’” Reichle v. Howards, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. at
741). “[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)(quoting Malley v. Briggs, 475

material issue in a case and would assist the court in its disposition, we allow a citation to that
decision.” United States v. Austin. 426 F.3d 1266, 1274 (10th Cir.2005). The Court concludes
that Lobozzo v. Colorado Department of Correction, Serrano v. United States, 776 F. App’x 561
(10th Cir. 2019); Rudnick v. Raemisch, 774 F. App’x 446 (10th Cir. 2019); Savage v. Troutt,
774 F. App’x 574 (10th Cir. 2019); Choate v. Huff, 773 F. App’x 484, (10th Cir. 2019); Rife v.
Jefferson, 742 F. App’x 377 (10th Cir. 2018); Malone v. Bd. of Cty. Comm’rs for Cty. of Dona
Ana, 707 F. App’x 552 (10th Cir. 2017); Brown v. City of Colo. Springs, 709 F. App’x 906
(10th Cir. 2017); Sanchez v. Labate, 564 F. App’x 371 (10th Cir. 2014); Wilson v. City of
Lafayette, 510 F. App’x 775 (10th Cir. 2013); and Stevenson v. Cordova, 733 F. App’x 939
(10th Cir. 2018), have persuasive value with respect to a material issue, and will assist the Court
in its disposition of this Memorandum Opinion and Order.

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U.S. at 341).
“The operation of this standard, however, depends substantially upon the level of
generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S.
at 639. The Supreme Court has stated: “[T]he clearly established right must be defined with
specificity.” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019). “The general proposition,
for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help
in determining whether the violative nature of particular conduct is clearly established.” Ashcroft
v. al-Kidd, 563 U.S. at 742. “[T]the clearly established law must[, rather,] be ‘particularized’ to
the facts of the case,” White v. Pauly, 137 S. Ct. 548, 552 (2017)(quoting Anderson v. Creighton,
483 U.S. at 640); under this view of the clearly established prong, a court should inquire whether
clearly established law makes improper the actions that the officer took in the case’s
circumstances, see City of Escondido v. Emmons, 139 S. Ct. at 503 (directing the Court of Appeals
to ask, in excessive force cases, “whether clearly established law prohibited the officers from
stopping and taking down a man in these circumstances”). See Ziglar v. Abbasi, 137 S. Ct. 1843,
1866 (2017)(“[T]he dispositive question is ‘whether the violative nature of particular conduct is
clearly established.’” (quoting Mullenix v. Luna, 136 S. Ct. at 308)); District of Columbia v.
Wesby, 138 S. Ct. 577, 591 (2018)(“Tellingly, neither the panel majority nor the partygoers have
identified a single precedent -- much less a controlling case or robust consensus of cases -- finding
a Fourth Amendment violation under similar circumstances.”).
The Tenth Circuit has, however, emphasized the Supreme Court’s statements that, in some
situations, “clearly established general rules of law can provide notice of the unlawfulness of an
official’s conduct in appropriate circumstances.” A.N. by & through Ponder v. Syling, 928 F.3d
1191, 1198 (10th Cir. 2019). The Tenth Circuit has commented: “‘[G]eneral statements of the law

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are not inherently incapable of giving fair and clear warning to officers’ that their conduct violates
a constitutional right, and that such statements provide the required notice when ‘the unlawfulness’
of their conduct is ‘apparent’ from the pre-existing law.” A.N. by & through Ponder v. Syling,
928 F.3d at 1198 (quoting White v. Pauly, 137 S. Ct. at 552). According to the Tenth Circuit,
“‘[g]eneral statements of the law can clearly establish a right for qualified immunity purposes if
they apply with obvious clarity to the specific conduct in question.’ And this is so ‘even though
the very action in question has not previously been held unlawful.’” A.N. by & through Ponder v.
Syling, 928 F.3d at 1198 (first quoting Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018),
and then quoting Hope v. Pelzer, 536 U.S. 730 (2002)). The Tenth Circuit has cautioned that such
an approach is inappropriate where a case involves “relevant ambiguities.” Colbruno v. Kessler,
928 F.3d 1155, 1165 (10th Cir. 2019)(citing Aldaba v. Pickens, 844 F.3d 870, 879 (10th Cir.
2016)(“Aldaba II”); Wilson v. City of Lafayette, 510 F. App’x 775, 778 (10th Cir. 2013); Thomson
v. Salt Lake Cty., 584 F.3d at 1315-17).
Although the Tenth Circuit has recognized a sliding scale for qualified immunity’s clearly
established inquiry, see Casey v. City of Fed. Heights, 509 F.3d at 1284 (“We have therefore
adopted a sliding scale to determine when law is clearly established.”), the Tenth Circuit may have
since walked back its holding that a sliding-scale is the appropriate analysis, see Aldaba v. Pickens,
844 F.3d at 876. In Aldaba II, the Tenth Circuit reconsidered its ruling from Aldaba v. Pickens,
777 F.3d 1148 (10th Cir. 2015)(“Aldaba I”), that officers were entitled to qualified immunity after
the Supreme Court vacated its decision in light of Mullenix v. Luna. In concluding that it had
previously erred in Aldaba I, the Tenth Circuit determined:
We erred . . . by relying on excessive-force cases markedly different from this one.
Although we cited Graham v. Connor, 490 U.S. 386 (1989) to lead off our clearlyestablished-law discussion, we did not just repeat its general rule and conclude that

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the officers’ conduct had violated it. Instead, we turned to our circuit’s slidingscale approach measuring degrees of egregiousness in affirming the denial of
qualified immunity. We also relied on several cases resolving excessive-force
claims. But none of those cases remotely involved a situation as here.
Aldaba II, 844 F.3d at 876. The Tenth Circuit further noted that its sliding-scale approach may
have fallen out of favor, because the sliding-scale test relies, in part, on Hope v. Pelzer, 536 U.S.
at 739-41, and the Supreme Court’s most recent qualified immunity decisions do not invoke that
case. See Aldaba II, 844 F.3d at 874 n.1. See also Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10
(10th Cir. 2017). The Tenth Circuit explained:
To show clearly established law, the Hope Court did not require earlier cases with
“fundamentally similar” facts, noting that “officials can still be on notice that their
conduct violates established law even in novel factual circumstances.” Id. at 741
. . . . This calls to mind our sliding-scale approach measuring the egregiousness of
conduct. See Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012). But the
Supreme Court has vacated our opinion here and remanded for us to reconsider our
opinion in view of Mullenix, which reversed the [United States Court of Appeals
for the] Fifth Circuit after finding that the cases it relied on were “simply too
factually distinct to speak clearly to the specific circumstances here.” 136 S. Ct.
at 312. We also note that the majority opinion in Mullenix does not cite Hope v.
Pelzer . . . . As can happen over time, the Supreme Court might be emphasizing
different portions of its earlier decisions.
Aldaba II, 844 F.3d at 874 n.1. Since Aldaba II, the Supreme Court has reversed, per curiam,
another Tenth Circuit qualified immunity decision. See White v. Pauly, 137 S. Ct. at 551. In
White v. Pauly, the Supreme Court explained: “The panel majority misunderstood the ‘clearly
established’ analysis: It failed to identify a case where an officer acting under similar
circumstances as Officer White was held to have violated the Fourth Amendment.” White v.
Pauly, 137 S. Ct. at 552.20 The Supreme Court’s per curiam reversals appear to have the Tenth

20

The Supreme Court has signaled to the lower courts that a factually identical or a highly
similar factual case is required for the law to be clearly established. Factually identical or highly
similar factual cases are not, however, the way the real world works. Cases differ. Many cases
have so many facts that are unlikely to ever occur again in a significantly similar way. See York

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v. City of Las Cruces, 523 F.3d 1205, 1212 (10th Cir. 2008)(“However, [the clearly established
prong] does not mean that there must be a published case involving identical facts; otherwise we
would be required to find qualified immunity wherever we have a new fact pattern.”). The
Supreme Court’s view of the clearly established prong assumes that officers are well-versed in
Supreme Court and Tenth Circuit opinions. It is hard enough for the federal judiciary to embark
on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is
far more likely that, in their training and continuing education, police officers are taught general
principles, and, in the intense atmosphere of an arrest, police officers rely on these general
principles, rather than engaging in a detailed comparison of their situation with a previous
Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable
officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here
anything like the facts in York v. City of Las Cruces?” Thus, when the Supreme Court grounds
its clearly established jurisprudence in the language of what a reasonable officer or a “reasonable
official” would know, Kisela v. Hughes, 138 S. Ct. at 1153, yet still requires a highly factually
analogous case, it has either lost sight of reasonable officer’s experience or it is using that
language to mask an intent to create “an absolute shield for law enforcement officers,” Kisela v.
Hughes, 138 S. Ct. at 1162 (Sotomayor, J. dissenting). The Court concludes that the Supreme
Court is doing the latter, crafting its recent qualified immunity jurisprudence to effectively
eliminate § 1983 claims against state actors in their individual capacities by requiring an
indistinguishable case and by encouraging courts to go straight to the clearly established prong.
See Saenz v. Lovington Mun. Sch. Dist., 105 F. Supp. 3d 1271, 1297 n.4 (D.N.M.
2015)(Browning, J.).
The Court disagrees with the Supreme Court’s approach. The most conservative,
principled decision is to minimize the expansion of the judicially created clearly established
prong, so that it does not eclipse the congressionally enacted § 1983 remedy. As the Cato
Institute noted in a recent amicus brief, “qualified immunity has increasingly diverged from the
statutory and historical framework on which it is supposed to be based.” Brief of the Cato
Institute as Amicus Curiae Supporting Petitioners at 2, White v. Pauly, 137 S. Ct. 548
(2017)(No. 17-1078)(“Cato Brief”). “The text of 42 U.S.C. § 1983 . . . makes no mention of
immunity, and the common law of 1871 did not include any across-the-board defense for all
public officials.” Cato Brief at 2. “With limited exceptions, the baseline assumption at the
founding and throughout the nineteenth century was that public officials were strictly liable for
unconstitutional misconduct. Judges and scholars alike have thus increasingly arrived at the
conclusion that the contemporary doctrine of qualified immunity is unmoored from any lawful
justification.” Cato Brief at 2. See generally William Baude, Is Qualified Immunity Unlawful?,
106 Cal. L. Rev. 45 (2018)(arguing that the Supreme Court’s justifications for qualified
immunity are incorrect). Further, as the Honorable Clarence Thomas, Associate Justice for the
Supreme Court, has argued, because the Supreme Court’s qualified immunity analysis “is no
longer grounded in the common-law backdrop against which Congress enacted [§ 1983], we are
no longer engaged in ‘interpret[ing] the intent of Congress in enacting’ the Act.” Ziglar v.
Abbasi, 137 S. Ct. at 1871 (Thomas, J., concurring)(quoting Malley v. Briggs, 475 U.S. at 342).
“Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy
choice[s]’ that we have previously disclaimed the power to make.” Ziglar v. Abbasi, 137 S. Ct.

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Circuit stepping lightly around qualified immunity’s clearly established prong, see, e.g., Choate v.
Huff, 773 F. App’x 484, 487-88 (10th Cir. 2019); Perry v. Durborow, 892 F.3d 1116, 1123-27
(10th Cir. 2018); Rife v. Jefferson, 742 F. App’x 377, 381-88 (10th Cir. 2018); Malone v. Bd. of
Cty. Comm’rs for Cty. of Dona Ana, 707 F. App’x 552, 555-56 (10th Cir. 2017); Brown v. City
of Colo. Springs, 709 F. App’x 906, 915 (10th Cir. 2017); Aldaba II, 844 F.3d at 874, and willing
to reverse district court decisions should the district court conclude that the law is clearly
established, but see A.N. by & through Ponder v. Syling, 928 F.3d at 1198 (concluding that the
publication of information about an arrested and detained juvenile violated clearly established
equal protection law prohibiting treating the juvenile differently than similarly situated juveniles);
Matthews v. Bergdorf, 889 F.3d 1136, 1149-50 (10th Cir. 2018)(holding that a child caseworker
was not entitled to qualified immunity, because a caseworker would know that “child abuse and
neglect allegations might give rise to constitutional liability under the special relationship
exception”); McCoy v. Meyers, 887 F.3d 1034, 1052-53 (10th Cir. 2018)(concluding that there

at 1871 (Thomas, J., concurring)(quoting Rehberg v. Paulk, 566 U.S. 356, 363 (2012)). The
judiciary should be true to § 1983 as Congress wrote it.
Moreover, there should be a remedy when there is a constitutional violation, and jury
trials are the most democratic expression of what police action is reasonable and what action is
excessive. If the citizens of New Mexico decide that state actors used excessive force or were
deliberately indifferent, the verdict should stand, not be set aside because the parties could not
find an indistinguishable Tenth Circuit or Supreme Court decision. Finally, to always decide the
clearly established prong first and then to always say that the law is not clearly established could
be stunting the development of constitutional law. See Aaron L. Nielson & Christopher J.
Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 6 (2015). And while the Tenth
Circuit -- with the exception of now-Justice Gorsuch, see Shannon M. Grammel, Justice Gorsuch
on Qualified Immunity, 69 Stan. L. Rev. Online 163 (2017) -- seems to agree with the Court, see,
e.g., Casey v. City of Fed. Heights, 509 F.3d at 1286, the per curiam reversals appear to have the
Tenth Circuit stepping lightly around qualified immunity’s clearly established prong, see Aldaba
II, 844 F.3d at 874; Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 707 F. App’x at 55556; Brown v. City of Colo. Springs, 709 F. App’x 906, 915-16 (10th Cir. 2017), and willing to
reverse district court decisions.

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was clearly established law even though the three decisions invoked to satisfy that prong were not
“factually identical to this case,” because those cases “nevertheless made it clear that the use of
force on effectively subdued individuals violates the Fourth Amendment”).
LAW REGARDING A POLICE UNION INTERVENING IN A CONSENT DECREE
There are cases in many other districts in which the United States and a City resolve a
police-related lawsuit by entering into a settlement agreement. The police union sometimes
responds by filing a motion to intervene. The Court has surveyed caselaw to determine how other
courts have ruled on police unions’ motions to intervene.
In State v. City of Chicago, 912 F.3d 979 (2019), the United States Court of Appeals for
the Seventh Circuit affirmed the district court’s decision concluding that the police union’s motion
to intervene was untimely. See State v. City of Chi., 912 F.3d at 989. Two days after the State of
Illinois filed a lawsuit against the City of Chicago that alleged that the Chicago Police Department
had use-of-force policies and practices that violated constitutional and Illinois law, Illinois and
Chicago filed a motion to stay the proceedings while they negotiated a settlement agreement. See
State v. City of Chi., 912 F.3d at 982. The Fraternal Order of Police, Lodge No. 7 “[a]lmost
immediately” “publicly indicated its opposition to any consent decree,” because of the possibility
of the settlement agreement impairing its rights under its CBA, but did not file its motion to
intervene until more than nine months had passed. State v. City of Chi., 912 F.3d at 982. Although
the district court concluded that Lodge No. 7 satisfied three of the four factors for interventions as
of right, the district court denied Lodge No. 7’s motion, because it did not meet the fourth factor - timeliness. See State v. City of Chi., 912 F.3d at 982, 984.
Because the district court denied Lodge No. 7’s motion solely based on timeliness, the
Seventh Circuit assessed only timeliness in its opinion. See State v. City of Chi., 912 F.3d at 982,

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984. The Seventh Circuit first assessed Lodge No. 7’s knowledge of interest in the suit, noting
that the Seventh Circuit measured knowledge of interest from the time when the proposed
intervenor “has reason to know its interests might be adversely affected, not from when it knows
for certain that they will be.” State v. City of Chi., 912 F.3d at 985 (citing e.g. Heartwood, Inc. v.
U.S. Forest Serv., Inc., 316 F.3d 694, 701 (7th Cir. 2003)(italics in State v. City of Chi.). Thus,
the Seventh Circuit concluded, Lodge No. 97’s timeliness was measured from its public opposition
to the consent decree immediately after the suit was filed, and not when Lodge No. 97 was shut
out of negotiations later. See State v. City of Chi., 912 F.3d at 984-85 (emphasizing that the
inherent relationship between Lodge No. 97 and Chicago makes the knowledge that the two
entities do not share interests “hardly remarkable”). The Seventh Circuit then assessed whether
the motion’s delay would prejudice Illinois and Chicago, noting that the “settlement negotiations
were complex and well-publicized.” State v. City of Chi., 912 F.3d at 986. The Seventh Circuit
concluded that the delay would prejudice Illinois and Chicago, because “‘[o]nce parties have
invested time and effort into settling a case it would be prejudicial to allow intervention.’” State
v. City of Chi., 912 F.3d at 986-87 (citing Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991)).
The Seventh Circuit next looked at whether denying intervention would prejudice Lodge
No. 97, noting that “the inability to appeal the entry of a consent decree does not always mandate
intervention.” State v. City of Chi., 912 F.3d at 987. Instead, the Seventh Circuit concluded that
Lodge No. 97 would be, at most, only “minimal[ly]” prejudiced, because it “has enjoyed repeated
(and continuing) opportunities” to express its concerns to the district court during fairness
hearings. State v. City of Chi., 912 F.3d at 987. It also concludes that Lodge No. 97’s rights in its
CBA are protected, because the settlement agreement contains “carve-out language” that “makes
clear that the parties do not intend for the consent decree to be interpreted as impairing CBA

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rights.” State v. City of Chi., 912 F.3d at 987. Further, the Seventh Circuit noted that “the Lodge’s
assertion of prejudice is largely speculative. As things stand now, the consent decree cannot impair
the CBA or state law rights enjoyed by Chicago police officers.” State v. City of Chi., 912 F.3d
at 988. The Seventh Circuit concluded that the Lodge No. 97’s “allegations of prejudice are
presently speculative, and the other factors counsel against intervention,” but the Seventh Circuit
noted that the district court can reexamine intervention if Lodge No. 97’s speculations are realized.
See State v. City of Chi., 912 F.3d at 988. Finally, the Seventh Circuit concluded that, although
the district court did not consider unusual circumstances, Lodge No. 97 “never squarely presented
that legal theory to the district court” and “the district court considered the facts underlying the
argument but found them unpersuasive,” and thus the district court did “not err in focusing on the
disputed factors.” See State v. City of Chi., 912 F.3d at 989 (citing Illinois v. City of Chi., No.
17-6260, 2018 WL 3920816, at *5-6(N.D. Ill. 2018)(Dow, J.)).
In United States v. City of Miami, 278 F.3d 1174 (11th Cir. 2002), the United States Court
of Appeals for the Eleventh Circuit affirmed the district court’s denial of the Miami Community
Police Benevolent Association’s (“MCPBA”) motion to intervene in a settlement agreement
between the United States and the City of Miami, Florida. See 278 F.3d at 1175-177. The United
States originally filed a complaint against the City of Miami and the Fraternal Order of Police
(“FOP”) FOP, alleging employment discrimination under Title VII of the Civil Rights Act of 1964.
See 278 F.3d at 1176. In 1977, the district court approved the settlement agreement over the FOP’s
objections. See 278 F.3d at 1176. The FOP then appealed, and the Eleventh Circuit remanded the
case with instructions for the district court to alter the decree so that it did “not affect the promotion
of members of the Police Department.” 278 F.3d at 1176 (citing United States v. Miami, 664 F.2d
435 (5th Cir. 1981)).

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Twenty-two years later -- after the demographic makeup of the police department had
changed considerably -- the United States moved to supersede the 1977 settlement agreement with
a settlement agreement that ensured Miami would continue to improve upon its discriminatory
hiring procedures. See 278 F.3d. at 1177. Two months later, the MCPBA sought to intervene on
the basis the FOP did not adequately represent the MCPBA’s interests, which the MCPBA argued
were “‘diabolically [sic] opposed’” to the FOP’s interests. 278 F.3d at 1177 (quoting the
MCPBA’s Brief)(alteration in United States v. Miami). The Eleventh Circuit affirmed the lower
court’s denial of the MCPBA’s motion to intervene, because it could “discern no difference
between the objectives that the United States seeks to fulfill in this case and those of the MCPBA,”
and believed that the United States would adequately represent the MCPBA’s interests. 278 F.3d.
at 1179.
In Johnson v. Lodge No. 93 of the Fraternal Order of Police, although the Tenth Circuit
did not rule on a police union’s motion to intervene, it opined on the limits of a police-unionintervenor’s position. The Tenth Circuit affirmed the district court’s approval of a consent decree
between the City of Tulsa and African-American members of the Tulsa Police Department. 393
F.3d at 1098-1099. The FOP had intervened in the consent decree and appealed the district court’s
approval of the consent decree, arguing that it violated its CBA and the Oklahoma Fire and Police
Arbitration Act. 393 F.3d at 1098-99 (citing Okla. Stat. tit. 11, § 51-101 et seq. (2001)).
The case originated in 1994 as a class action by African-American police officers against
Tulsa, in which the officers alleged that the Tulsa Police Department engaged in “systemic and
long-standing racial discrimination . . . in the areas of hiring, promotions, discipline, training, and
assignments.” 393 F.3d at 1099. The district court tried to end a three-year “costly litigation
battle” with settlement negotiations, but these negotiations stalled after the FOP moved to

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intervene, and the City withdrew its support for the proposed consent decree. 393 F.3d at 10991100. The district court granted the FOP’s motion to intervene and appointed a settlement judge
to facilitate negotiations between the parties and the FOP. See 393 F.3d at 1100. The court finally
approved the consent decree over the FOP’s objections in May 2003. See 393 F.3d at 1101. In
pertinent part, the FOP argued that the consent decree (i) “violates Oklahoma labor law and the
CBA because it prevents the City from bargaining in good faith with FOP regarding issues that
fall within FOP’s purview as the ‘exclusive bargaining agent’ for [Tulsa Police Department]
members,” and (ii) “adversely affects the third-party legal rights of FOP and its members without
their consent.” 393 F.3d at 1101 (alteration added and not in original).
The Tenth Circuit identified the issue as “whether the consent decree conflicts with state
law or the CBA turns on whether the CBA’s management rights or other provisions precluded the
City from adopting the employment provisions embodied in the consent decree.” 393 F.3d
at 1103. Applying Oklahoma law, the Tenth Circuit disagreed with FOP’s contention that the
“clear and unmistakable waiver” interpretation standard applied to the interpretation of the CBA’s
management rights provision, and it instead concluded that the “contract coverage” standard
applied. 393 F.3d at 1103. Under the clear-and-unmistakable standard that the FOP advanced,
the “plaintiffs and the City would be required to show specific intent by FOP to waive its right to
bargain over each particular subjection of the consent decree.” 393 F.3d at 1103. The Tenth
Circuit disagreed with the FOP, and it instead applied the “contract coverage” standard to the
CBA’s management-rights provision, reasoning that the FOP relied on cases that were outdated or
inapposite. 393 F.3d at 1104. Applying the contract-coverage standard, which is “‘when [an]
employer and union bargain about a subject and memorialize that bargain in a collective bargaining
agreement, . . . there is no continuous duty to bargain during the term of an agreement with respect

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to a matter covered by the [CBA],’” the Tenth Circuit concluded that the “CBA did not bar the
City from entering the consent decree without bargaining with FOP, and thus the consent decree
does not violate state labor law or the CBA.” 393 F.3d at 1104 (quoting NLRB v. United States
Postal Serv., 8 F.3d 832, 836 (D.C. Cir. 1993)(citations omitted). When explaining the contractcoverage standard, the Tenth Circuit cited decisions by the Oklahoma Public Employees Relations
Board (“PERB”) relied on by the district court:
An employer does not violate any duty to bargain when it alters subjects such as
. . . a change in the system of progressive discipline when the management rights
clause of the collective bargaining agreement negotiated between the employer and
the union gives the employer the right to make, issue and enforce such policies or
practices.
393 F.3d at 1104 (citing Fraternal Order of Police, Lodge No. 151 v. City of El Reno, PERB No.
353 (1998); Lodge No. 103, Fraternal Order of Police v. City of Ponca City, PERB No. 349
(1997)). The management-rights provision in the FOP’s CBA states that Tulsa “‘retains’ the rights
to ‘manage the affairs of the Police Department in all respects,’ to ‘establish and enforce Police
Department rules, regulations, and orders,’ and to ‘introduce new, improved, or different methods
and techniques of Police Department operation.’” 393 F.3d at 1104 (quoting the FOP’s CBA).
The Tenth Circuit also found that “the CBA’s management rights clause specifically retains for
the City the right to . . . discipline employees.” 393 F.3d at 1104. As a result, the Tenth Circuit
disagreed with the FOP’s “assertion that these topics are subject to mandatory bargaining under
the CBA.” 393 F.3d at 1104.
The Tenth Circuit also rejected the FOP’s argument that the consent decree violated its
rights “with respect to future collective bargaining agreements,” because it would prohibit the city
from “bargaining in good faith with respect to the terms of future collective bargaining
agreements.” 393 F.3d at 1104-05. The Tenth Circuit reasoned that this argument was speculative,

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that “[t]he consent decree itself acknowledges the continuing validity of the CBA,” and that the
decree should be read “in accordance with language in the CBA.” 393 F.3d at 1105. The Tenth
Circuit also commented that the FOP’s position would give intervenors in federal employment
discrimination cases “plenary power to veto all settlements which touch on terms and conditions
of employment,” and this power would “neuter[] the CBA’s management rights provision” and
“frustrate Congress’s preference for achieving Title VII compliance by voluntary means.” 393
F.3d at 1105.
The Tenth Circuit disagreed with the FOP’s assertion that the consent decree “binds” it and
“imposes legal obligations without its consent.” 393 F.3d at 1106 (citing Local No. 93, 478 U.S.
at 529-530). The Tenth Circuit dismissed those concerns, because the consent decree binds only
the parties to the consent decree. See 393 F.3d at 1107 (citing Local No. 93, 478 U.S. at 529-30).
The Court then addressed the FOP’s concerns that the consent-decree-created “Dispute Avoidance
and Resolution Committee” changed the FOP’s arbitration rights. 393 F.3d at 1107. The Tenth
Circuit stated that the “FOP retains the rights to arbitrate issues arising under the CBA,” and thus
the Dispute Avoidance and Resolution Committee did not infringe on those rights. 393 F.3d at
1108. The Tenth Circuit also dismissed the FOP’s fears that the court itself would usurp the
“traditional role of the labor arbitrator” and become a “gatekeeper” for union grievances. 393 F.3d
at 1108.
Turning to the FOP’s assertion that it could force a trial on the racial discrimination claims
to decide its contract rights under the CBA, the Tenth Circuit distinguished precedents the FOP
relied on for that argument. 393 F.3d at 1108. For instance, in Sanguine, Ltd. v. United States
Department of Interior, 798 F.3d 389 (10th Cir. 1986), the Tenth Circuit set aside a consent decree
in favor of litigation on the merits, because the intervenors, who were granted intervention status

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after the consent decree’s entry and thus unable to present their objections, would be prejudiced
otherwise. See 393 F.3d at 1108-09 (citing Sanguine, Ltd. v. U.S. Dep’t of Interior, 798 F.2d 389).
The Tenth Circuit concluded that a trial on the merits was not needed, because the FOP was
included in the consent decree process and its objections were heard, and because “the consent
decree [did] not alter the FOP’s rights under the CBA.” 393 F.3d at 1109.
In United States v. City of New Orleans, 2012 WL 12990388 (E.D. La. Aug. 31,
2012)(Morgan, J.), the FOP and the Police Association of New Orleans moved to intervene in
litigation between the United States and the City of New Orleans arising from “an alleged pattern
or practice of conduct by the New Orleans Police Department that subjects individuals to excessive
force [and] . . . unlawful searches and seizures in violation of the Fourth Amendment” as well as
“discriminatory policing practices in violation of the Fourteenth Amendment, the Safe Streets Act,
and Title VI.” 2012 WL 12990388, at *1. The district court denied the Fraternal Order of Police’s
and the Police Association of New Orleans’ motions to intervene as of right and permissively.
2012 WL 12990388, at *9-12.
Analyzing the two unions’ motions together, the Honorable Susie Morgan, Senior United
States District Judge for the United States District Court for the Eastern District of Louisiana,
reasoned that the unions did not have a “legally protectable interest in the subject matter of this
litigation required for intervention as of right.” 2012 WL 12990388, at *7 (emphasis in original).
Judge Morgan distinguished the unions’ assertion of protectable property interest in the civil
service jobs from the police in Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996), which
was an employment discrimination case. 2012 WL 12990388, at *7-9. There, the court granted
intervention, because Title VII’s preclusive effect “would prohibit the non-party officers -- if they
were not allowed to intervene -- from collaterally challenging the consent decree after the district

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court approved it.” United States v. City of New Orleans, 2012 WL 12990388, at *8 (citing
Edwards v. City of Houston, 78 F.3d at999, 1004; 42 U.S.C. § 2000e-2(n)). Judge Morgan found
Edwards v. City of Houston inapposite, because the consent decree between the United States and
New Orleans “remedied . . . Title VI . . . claims having to do with the NOPD’s practices with
respect to citizens” and did not remedy Title VII employment discrimination claims. United States
v. City of New Orleans 2012 WL 12990388, at *9. Comparing the FOP and the Police Association
of New Orleans with the police union in United States v. City of L.A., Judge Morgan found that
the unions did not have a CBA or memorandum of understanding with New Orleans, and so the
consent decree could not threaten or impair any contractual rights. See United States v. City of
New Orleans, 2012 WL 12990388, at *10.
In United States v. City of Hialeah, the Eleventh Circuit concluded that the United States
District Court for the Southern District of Florida properly refused to approve part of a consent
decree between the United States Department of Justice and the City of Hialeah, Florida, which
arose from allegations of employment discrimination in both the police and fire departments. See
140 F.3d at 971. The Dade County Police Benevolent Association and a firefighters’ union were
joined as defendants shortly after the United States and Hialeah entered a proposed consent decree,
but the United States and Hialeah did not invite either union to participate in the consent decree’s
formulation. See 140 F.3d at 972. At a fairness hearing two months later, the court also allowed
a group of approximately 200 individual police officers to intervene. See 140 F.3d at 972.
Although the district court approved a consent decree resulting from negotiations with the
unions and intervenors, it did not approve a provision that would have imposed “retroactive
competitive seniority” for minority applicants who applied for promotion, because such a
provision “would violate contractual seniority rights of the incumbent employees, rights

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guaranteed to them in the unions’ collective bargaining agreements with the City.” 140 F.3d
at 971. The district court “therefore refused to enter that part of the proposed consent decree over
the objections of those whose legally enforceable seniority rights would be adversely affected.”
140 F.3d at 971. The Eleventh Circuit affirmed the district court’s decision, stating that, because
the police and firefighters were unable to participate in negotiations, “[t]he district court correctly
rejected the Department of Justice’s request to ram the proposed settlement agreement down the
throats of the unions and individual objectors without affording them a fair adjudication of their
rights.” 140 F.3d at 984.
In United States v. City of L.A., the Los Angeles Police Protective League moved to
intervene in consent decree litigation between the United States and the City of Los Angeles, the
Los Angeles Police Department, and the Board of Police Commissioners of the City of Los
Angeles. See 288 F.3d at 396. The proposed consent decree sought to address the police
department’s “pattern or practice of depriving individuals of constitutional rights through the use
of excessive force, false arrests and improper searches and seizures in violation of 42 U.S.C. §
14141.” United States v. City of L.A., 288 F.3d at 396. The Ninth Circuit reversed the district
court’s denial of the Los Angeles Police Protective League’s motion to intervene, reasoning that
the Los Angeles Police Protective League had a protectable interest not only in the remedial phase,
but in the liability phase of the litigation as well. See United States v. City of L.A., 288 F.3d at
398-399. The Ninth Circuit concluded that the Los Angeles Police Protective League had a
protectable interest in the liability phase of the litigation, because the district court had not finally
approved the consent decree when it denied the Police League’s motion, and the United States had
“not unequivocally and completely disclaim[ed] the remedies sought in its complaint against the
Police League’s member officers.” United States v. City of L.A., 288 F.3d at 399. Furthermore,

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the decree contained a provision that allowed the United States to “dissolve the decree and proceed
with the suit if the Los Angeles Police Department, and the Board of Police Commissioners and
the Los Angeles Police Protective League were unable to resolve a collective bargaining issue.”
United States v. City of L.A., 288 F.3d at 400.
Additionally, the Los Angeles Police Protective League had “a protectable interest in the
remedy,” because of “state-law rights to negotiate about the terms and conditions of its members’
employment” and the right to “rely on the collective bargaining agreement that is a result of those
negotiations.” 288 F.3d at 400. The Ninth Circuit added that
to the extent that [the consent decree] contains or might contain provisions that
contradict terms of the officers’ MOU, the Police League has the right to present
its views on the subject to the district court and have them fully considered in
conjunction with the district court’s decision to approve the consent decree.
288 F.3d at 400.
In United States v. City of Portland, No. 3:12-cv-02265-SI, 2013 WL 1230978, (D. Or.
Feb. 19, 2013)(Simon, J.), the United States filed a complaint against the City of Portland alleging
a “pattern or practice of conduct by the Portland Police Bureau that subjects individuals with actual
or perceived mental illness to excessive force.” 2013 U.S. Dist. LEXIS 188465, at *2. The parties
filed a joint motion to enter a negotiated settlement agreement, and, the next day, the Portland
Police Association moved to intervene. 2013 U.S. Dist. LEXIS 188465, at *3. The district court
granted the PPA’s motion to intervene “for remedy purposes” and deferred ruling on the PPA’s
motion “for liability purposes.” 2013 U.S. Dist. LEXIS 188465, at *4.
The Honorable Michael Simon, United States District Judge for the United States District
Court for the District of Oregon, granted the Portland Police Association’s motion to intervene,
reasoning that “the broad enforcement provisions in the proposed Settlement Agreement still allow

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the United States to seek judicial enforcement in this Court of any provision of the proposed
Settlement Agreement (after mediation), without providing any exception for those provisions that
implicate the PPA’s collective bargaining rights.” 2013 U.S. Dist. LEXIS 188465, at *15. The
court concluded that the settlement agreement may impair or impede the Portland Police
Association’s protectable interest, because the court may resolve implementation of the consent
decree’s terms through injunctive relief. See 2013 U.S. Dist. LEXIS 188465, at *15.
In evaluating the adequacy of representation by existing parties, the court held that none of
the parties would adequately represent the Portland Police Association, because the “general
presumption of adequate representation when the government is acting on behalf of a constituency
that it represents” did not apply “when the governmental body acts as an employer, such as the
City is to the members of the PPA, or when the parties ‘are antagonists in the collective bargaining
process.’” 2013 U.S. Dist. LEXIS 188465, at *15-16.
The Court acknowledges that these cases are varied: some cases are employment
discrimination claims under Title VII, while other cases are excessive-force claims; some cases
involve a detailed collective bargaining agreement, while other cases involve no collective
bargaining agreement; and some cases involve the scope of a union that already has intervened,
while other cases involve a union seeking to intervene. Moreover, only one of these cases, Johnson
v. Lodge #93 of the Fraternal Order of Police, binds the Court. Regardless, the Court has presented
this survey to give a “lay of the land” and give context to the Officers Association status as an
intervenor.

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ANALYSIS
Had the Officers Association presented the Court with the MTI, the Court would have
granted the MTI but restricted the Officers Association’s intervenor status to protecting its interest
in the CBA. Moreover, the Court will overrule the Objection, because the Objection is not timely.
Further, if the Court ruled on the Objection’s merits, it would overrule the Objection, because the
use-of-force policy does not violate the Settlement Agreement, Tenth Circuit caselaw, Supreme
Court caselaw, or the Constitution.
I.

THE COURT WOULD HAVE, IF IT HAD BEEN PRESENTED WITH THE
ISSUE,
GRANTED THE OFFICERS ASSOCIATION’S MOTION TO
INTERVENE.
The parties have not asked the Court to reconsider Judge Brack’s decision to permit the

Officers Association to intervene, and the Court is not reconsidering Judge Brack’s decision. The
Court, however, conducts its own analysis to determine whether it agrees with Judge Brack’s
decision. In doing so, the Court concludes that, had it been presented with the issue, it would have
granted the Officers Association’s MTI, but it would have restricted intervention only to issues
related to the Original Settlement Agreement. The Court notes, however, that intervenor status
gives the Officers Association only the rights and interests it had before intervention and does not
create any new rights. Thus, the Officers Association’s intervenor status gives it only the ability
to object when the Settlement Agreement may impair its rights under the CBA, and intervenor
status does not give the Officers Association the right to defend its members against allegations in
the Complaint.

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A.

IF THE COURT HAD BEEN PRESENTED WITH THE ISSUE, IT WOULD
HAVE GRANTED THE OFFICER ASSOCIATION’S MOTION TO
INTERVENE.

To intervene as a matter of right under rule 24(a)(2), the movant must show that: (i) the
motion is timely; (ii) the movant asserts an interest relating to the property or transaction which is
the subject of the action; (iii) the lawsuit may impair or impede the movant’s interest relating to
the property; and (iv) the existing parties do not adequately represent the movant’s interest. See
Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d at 1103; Romero v. Bd. of Cty. Comm’rs
for the Cty. of Curry, 313 F.R.D. 133, 138 (D.N.M. 2016)(Browning, J.). First, the Court must
determine whether the MTI is timely.21 To determine timeliness, the Tenth Circuit guides district
courts to consider “all the circumstances, including the length of time since the applicant knew of
his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence
of any unusual circumstances.” Utah Assoc. of Ctys. v. Clinton, 255 F.3d at 1250 (internal
quotation marks omitted). See Am. Ass’n of People with Disabilities v. Herrera, 257 F.R.D. 236,
245 (D.N.M. 2008)(Browning, J.). The “mere passage of time” is not dispositive -- rather, the
important question concerns actual proceedings of substance on the merits.” Moore's Federal
Practice § 24.21[1], at 884 (3d ed. 2008). See Utah Assoc. of Ctys. v. Clinton, 255 F.3d at 125051 (stating that motion to intervene was timely where filed approximately two-and-one-half years
after the case began, “in view of the relatively early stage of litigation and the lack of prejudice to
plaintiffs flowing from the length of time between the initiation of the proceedings and motion to
intervene”). Although the Tenth Circuit directs district courts to assess intervention “in the light
of all circumstances,” the Tenth Circuit has “recognized three factors as particularly important: ‘[

21

In conducting this analysis, the Court uses the facts at the time the Officers Association
submitted its MTI.

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(1) ] the length of time since the [movant] knew of [its] interests in the case; [ (2) ] prejudice to
the existing parties; [and (3) ] prejudice to the [movant].’” Okla. ex rel. Edmondson v. Tyson
Foods, Inc., 619 F.3d 1223, 1232 (10th Cir. 2010)(quoting Sanguine, Ltd. v. U.S. Dep’t of Interior,
736 F.2d at 1418)(alterations in Okla. ex rel. Edmondson v. Tyson Foods, Inc.). Courts should
also consider “the existence of any unusual circumstances.” Okla. ex rel. Edmondson v. Tyson
Foods, Inc., 619 F.3d at 1232 (alterations in Okla. ex rel. Edmondson v. Tyson Foods, Inc.)
The length of time the Officers Association knew of its interest in the case weighs in the
Officers Association’s favor. The Officers Association had notice that a Complaint was coming
and knew generally what the Complaint might say because of the public nature of the United States
and Albuquerque’s discussion regarding the investigation findings and settlement. See Joint
Motion for Settlement at 2. Presumably, the Officers Association was aware when the findings
were released that it would have an interest in the subsequent lawsuit. See State v. City of Chicago,
912 F.3d at 985 (stating that the police union should have had knowledge from the beginning of
the lawsuit, because the police union’s “very existence is rooted in the competing interests between
its members and the City”). Thus, the Officers Association had a lengthier amount of time to know
of its interest in the case than the Complaint’s filing date suggests. The Officers Association,
however, should not be expected to write its MTI before the official filing of the Complaint, as
there was no guarantee of the filed Complaint’s exact contents. Thus, the Court considers the
additional notice but does not penalize the Officers Association, because the Officers Association
could not have known the filed Complaint’s exact contacts until it was filed. Even if the Officers
Association had a copy of the proposed Complaint before it was filed, there was no guarantee that
the United States and Albuquerque would file the exact same document they gave the Officers
Association. Moreover, the Officers Association’s knowledge of its interest in the case can begin

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only after there is a case. Thus, although the Officers Association might have anticipated that there
would be a lawsuit and that the lawsuit would affect the Officers Association, the Officers
Association’s interest in the exact details of the suit is measured from when the lawsuit was filed.
Moreover, although the passage of time is not dispositive, it persuades the Court of the
filing date’s reasonableness, because the time between the Officers Association knowledge of its
interest in the case and its filing of its MTI is not sufficient to prejudice the United States and
Albuquerque. See Utah Ass’n. of Ctys. v. Clinton, 255 F.3d at 1250. The United States filed its
Complaint on November 12, 2014. See Complaint at 1. The Officers Association filed its MTI
five weeks later, on December 18, 2014. See MTI at 1. Between the Complaint’s filing and the
MTI’s filing, the United States and Albuquerque entered only two documents that moved the case
forward: City of Albuquerque’s Answer to the Complaint, filed November 11, 2014 (Doc. 7); and
the Joint Motion for Settlement. See Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1251 (concluding
that, although there had already been document discovery, discovery disputes, and motions to
dismiss, the motion to intervene was timely, in part, because the “case was far from ready for
disposition,” as evidenced by lack of scheduling orders, trial dates, or deadlines for motions set).
Although those documents are material to the case’s posture, the United States and Albuquerque
filed those documents the same day as the Complaint, so it would be unreasonable to expect the
Officers Association to file its Motion to Intervene before the Answer to the Complaint or the Joint
Motion for Settlement. Notably, the first of over twenty Motions to Intervene in this case was
filed only a week before the Officers Association filed its MTI. See Antone “Tony” Pirard’s
Motion

to

Intervene

under

Rule

14(a)(2)(C)(3)(4);

Rule

19

(a)(1)(A)(B)(i)(ii)(b)(1)(A)(B)(C)(3)(4)(c)(1)(2); Rule 24(a)(2)(b)(1)(B)(b)(3), December 9, 2014
(Doc. 14). Although the Officers Association could have filed its MTI earlier, the delay is not

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prejudicial to the United States and Albuquerque, because of the early stage of litigation and
because of the lack of significant activity in the case.
The third factor -- the prejudice to the Officers Association if intervention is denied -- cuts
against the Officer’s Association, because it has other mechanisms to resolve its concerns and
fairness hearings in which to express its concerns to the Court. The first two factors, however,
outweigh this third factor. Thus, the Officer’s Association’s MTI is timely.
The Officers Association must demonstrate next that it has an interest relating to the
property or transaction that is the subject matter of this case. See Utah Ass’n of Ctys. v. Clinton,
255 F.3d at 1251. Although the “‘contours of the interest requirement have not been clearly
defined,’ in this circuit the interest must be ‘direct, substantial, and legally protectable.’” Utah
Ass’n of Ctys. v. Clinton, 255 F.3d at 1251 (quoting Coal. of Ariz./N.M. Ctys. v. Dep’t of Interior,
100 F.3d at 840 (further internal quotations omitted)). “Whether . . . applicant[s] ha[ve] an interest
sufficient to warrant intervention as a matter of right is a highly fact-specific determination.” W.
Energy All. v. Zinke, 877 F.3d 1157, 1165 (10th Cir. 2017)(quoting Coal. of Ariz./N.M. Ctys. v.
Dep’t of Interior, 100 F.3d at 841).
The Officers Association argues that it has two protectable interests in this lawsuit:
(i) protecting its officers from the allegations that its members have committed unconstitutional
acts, because Albuquerque has allowed its officers to engage in a pattern or practice of excessive
force resulting in a deprivation of civil rights; and (ii) preserving its CBA from conflicting
provisions in the Settlement Agreement. See MTI at 10. The Court concludes that the first interest
is a not a protectable interest in this lawsuit, although it is legally protectable, because it is not a
direct and substantial interest. See Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1251. The United
States seeks relief in its Complaint against Albuquerque’s “officers” and “employees,” which

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includes Officers Association members. See Complaint ¶ 28(b), (c), at 7. The Officers Association
represents the Albuquerque police officers, and because the United States is seeking injunctive
relief against Albuquerque police officers, the Officers Association could be construed as having
legally protectable interest. See MTI MOO at 7 (Brack, J.).
The Complaint, however, is somewhat of a legal fiction, because the United States filed
the Complaint after the United States and Albuquerque concluded negotiations of the First
Proposed Settlement Agreement. See Joint Motion for Settlement at 2; Original Settlement
Agreement MOO at 2. The United States was not, therefore, truly seeking this relief against
“officers” and “employees.” Regardless, Judge Brack did not have to approve the First Proposed
Settlement Agreement, and thus, the officers consequently could have been subjected to an
injunction’s effects. That the parties were already jointly seeking resolution mitigates the Officers
Association’s interest, because Judge Brack might not have approved the Settlement Agreement.
That the Officers Association’s interest is not direct further mitigates the interest. The suit does
not name individual officers; the prayer for relief only vaguely mentions “officers” and
“employees.” Although the Court concludes that Albuquerque police officers are Albuquerque’s
employees and thus implicated, they are named as part of a list of Albuquerque agents, and not as
a separate class or as a named parties. See Complaint ¶ 28 (b), (c), at 7. Moreover, if the litigation
proceeded to trial, the officers would not have been held in the court’s contempt had they refused
to follow a resulting injunction, and thus, their interest is less direct and substantial than it would
have been had the suit named them individually. See United States v. City of L.A., 288 F.3d at
399 (concluding that the police union had a protectable interest, in part, because the United States
named individuals in the complaint).

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The Officers Association’s second interest -- preserving its CBA -- is a legally
protectable, direct, and substantial interest. See Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1251.
The Officers Association is the exclusive bargaining representative for Albuquerque police
officers. See MTI at 1. Accordingly, PEBA and the Labor Ordinance both establish the Officers
Association’s exclusive bargaining rights to represent the officers and its right to bargain in good
faith over employment terms and conditions with Albuquerque. See PEBA; Labor Ordinance. In
accordance with these laws, Albuquerque and the Officers Association negotiated a CBA that went
into effect in July 2014. See Albuquerque MTI Response at 1-2. Its interest in preserving these
bargained-for terms is thus legally protected. The Complaint seeks relief that includes policy
changes, which may implicate employment terms and conditions as the CBA protects. See
Complaint ¶ 28 (b), (c), at 7.

Albuquerque may have to implement policy changes that

impermissibly alter bargained-for policies in the CBA. Thus, the case’s resolution directly affects
the Officers Association’s interest, because Albuquerque may be mandated or may agree to change
policies in contravention of the CBA. The CBA took more than four years to negotiate, and thus
the Officers Association’s interest in preserving such a long bargained-for agreement is substantial.
See MTI at 10.
The Officers Association next must demonstrate that the litigation’s disposition will impair
the Officers Association’s interest in preserving the CBA. See Utah Ass’n of Ctys. v. Clinton, 255
F.3d at 1251. The Officers Association argues that it has an interest in the litigation “to the extent
that the [Settlement Agreement] contains or might contain” terms that conflict with the CBA, and
the Officers Association provides a non-exhaustive list of Original Settlement Agreement
provisions that conflict with the CBA. See United States v. City of L.A., 288 F.3d at 400. The
Court concludes that the Officers Association has demonstrated that there is some existing conflict

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between the Original Settlement Agreement and the CBA. For example, the Officers Association
cites CBA § 20.1.8, which forbids the Internal Affairs Bureau from conducting criminal
investigations of officers to keep administrative and criminal investigations separate. See Amicus
Curiae Brief at 7-8; MTI Reply at 8-9. It notes that the Original Settlement Agreement contains
a directly contradictory provision establishing a criminal investigations team within the Internal
Affairs Bureau. See Amicus Curiae Brief at 7-8; MTI Reply at 8-9. These terms are plainly
contradictory. The United States and Albuquerque, however, attempt to reconcile the provisions.
The United States acknowledges the conflict, but it argues that its Original Settlement Agreement
provision still fulfills the purpose of CBA § 20.1.8, because the Original Settlement Agreement
includes protections to keep the criminal investigations separate from the administrative
investigations. See U.S. MTI Response at 14. Albuquerque argues that the criminal investigations
team, despite being part of the Internal Affairs Bureau, can operate separately from the Internal
Affairs Bureau. See Albuquerque MTI Response at 10. Neither of these arguments is convincing,
because both the United States and Albuquerque acknowledge that, despite the mandate of CBA
§ 20.1.8, the Original Settlement Agreement establishes a team to handle criminal investigations
within the Internal Affairs Bureau. See U.S. MTI Response at 14; Albuquerque MTI Response at
10.

Moreover, the United States’ and Albuquerque’s attempts to reconcile the terms as

“consistent” demonstrates that there is potential for the terms to conflict. Albuquerque MTI
Response at 10. At this point in the litigation, the Court only needs to see whether there is a
potential for conflict to conclude that the disposition may impair the Officers Association’s
protectable interest. See Utahns for Better Transp. v. U.S. Dep’t of Transp., 295 F.3d at 1116
(stating that, if the proposed intervenor demonstrates that the disposition “may” impair its interest,
its interest warrants intervention); San Juan Cty. v. United States, 503 F.3d at 1189 (concluding

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that the possibility that the disposition may not impair the intervenor’s interest is not dispositive
in terms of intervention). Further, the Original Settlement Agreement has the potential to contain
provisions that are the CBA’s mandatory subjects, which would give rise to conflict. Thus, the
Court concludes that there is actual and potential conflict, which would impair the Officers
Association’s protectable interest in preserving its CBA. See Utahns for Better Transp. v. U.S.
Dep’t of Transp., 295 F.3d at 1116.
The United States and Albuquerque contend that, even if the Court concludes that the CBA
is a protectable interest, the Officers Association does not have a protectable interest in the case,
because the CBA will expire in July, 2015. See Albuquerque MTI Response at 1-2; U.S. MTI
Response at 6-7. The test asks, however, whether the interest will or could be impaired, and not
for how long the interest will be impaired. See Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co.,
407 F.3d at 1103 (stating that the third factor for intervention as a matter of right is whether “the
applicant’s interest may be impaired or impeded”). Moreover, even if the Court concludes that
the CBA was certain to expire before Judge Brack approved and entered the Original Settlement
Agreement, the case could still impair or impede the Officers Association’s interest. The CBA in
this case took between four and five years for the parties to negotiate and finalize. See MTI at 10;
Amicus Curiae Brief at 2. Thus, it is possible -- and the test requires only a possibility -- that the
expired CBA still will govern for several years after July, 2015. Albuquerque may not unilaterally
alter the CBA after its expiration, because the CBA provides that, if neither the Officers
Association nor Albuquerque “request the opening of negotiations as provided in the LaborManagement Relations Ordinance 67-1977, as amended, this Agreement and the conditions herein
shall continue in effect from year to year.” CBA § 35.4, at 44. See also MTI MOO at 9 (Brack,
J.)(concluding that Albuquerque cannot “‘unilaterally impose conditions of employment once a

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CBA has expired”)(quoting Am. Fed. of State v. City of Albuquerque, 2013-NMCA-063, 304 P.3d
443, and citing N.M. Stat. Ann. § 10-7E-26 for the proposition that CBA must remain in effect
until a new agreement is finalized).

Thus, the possibility remains that neither party will open

negotiations, and the CBA will continue, which could impede the Officers Association’s interest).
The Tenth Circuit previously has concluded that, when determining whether a settlement
agreement will violate a union’s protected interests, the inquiry is whether the settlement
agreement adversely affects any of the union’s legal rights and not whether a legally protected
settlement agreement provision is violated. See Johnson v. Lodge No. 93, 393 F.3d at 1107.
Albuquerque uses this case to bolster its argument that the Original Settlement Agreement will not
impair the Officers Association’s rights. In Johnson v. Lodge No. 93 of the Fraternal Order of
Police, the Tenth Circuit concluded that the union’s interest was not impaired, because the
settlement agreement did not adversely affect any of the union’s rights. See 393 F.3d at 1107. The
Tenth Circuit explained that the union’s legal rights were not affected, because similar to
Local No. 93, the consent decree here does not bind FOP to do or not to do
anything, nor does it impose any legal obligations on FOP. Additionally, “only the
parties to the decree [i.e., plaintiffs and the City] can be held in contempt of court
for failure to comply with its terms,” and the consent decree “does not purport to
resolve any claims [FOP] might have under the Fourteenth Amendment.”
Johnson v. Lodge No. 93, 393 F.3d at 1107 (quoting Local No. 93, 478 U.S. at 530). Because the
Tenth Circuit concluded the settlement agreement did not impose any legal duties or obligations
on the union, it did not see a need to address the union’s argument that the settlement agreement
conflicted with its CBA’s legally protected arbitration provision to reach an outcome. See Johnson
v. Lodge No. 93, 393 at 1107 (“Thus, under the Supreme Court’s reasoning in Local No. 93, we
find that the consent decree does not impermissibly affect FOP’s legal rights. We nonetheless

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address FOP’s argument that the Dispute Avoidance and Resolution Committee created pursuant
to the December 2002 Decree alters FOP’s arbitration rights under the CBA.”).
It addressed, however, the legally protected arbitration provision, and it concluded that the
settlement agreement supplemented the arbitration provision and that the union still retained its
arbitration rights. See Johnson v. Lodge No. 93, 393 F.3d at 1107. Similarly, the Original
Settlement Agreement imposes no duties or obligations on the Officers Association, nor does it
suggest that it resolves any legal claims the Officers Association may make about the Original
Settlement Agreement. The Court cannot hold the Officers Association members in contempt for
refusing to comply with any injunctive relief granted pursuant to the Complaint. Thus, according
to Albuquerque, under Johnson v. Lodge No. 93, the Court need not determine whether the First
Proposed Settlement Agreement provision establishing a criminal investigations team within the
Internal Affairs Unit violates the CBA and impairs the Officers Association’s interest. The Tenth
Circuit in Johnson v. Lodge No. 93 was not determining, however, whether it should permit the
police union to intervene, because its interest was impaired -- instead, the Tenth Circuit was
determining whether the police union, which already was an intervenor, could raise an objection
to the settlement agreement. See 393 F.3d at 1107. Thus, this case is distinguishable.
If the Court were writing on a clean slate, however, the analysis would be different. Rule
24(a) notably states that, for intervention to be appropriate, the litigation must impair the movant’s
“ability to protect its interest,” and not just impair the movant’s interest. Fed. R. Civ. P. 24(a)
(emphasis added). Accordingly, courts have concluded that the litigation’s outcome would not
impair the movant’s ability to protect its interest, “for example, when the court finds that the
would-be intervenor could protect its interest in a separate action.” Wright & Miller, 7C Fed. Prac.
& Proc. Civ. § 1908.2 (3d ed.)(citing e.g., St. Bernard Parish v. Lafarge N. America, Inc., 914 F.3d

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969 (5th Cir. 2019)(concluding that an attorney would not be prejudiced if the court denied
intervention in a case between a barge facility operator and a parish after the attorney withdrew
from a related case against the barge facility operator; “although the attorney sought to intervene
in order to address a fee dispute between himself, the parish, and its current counsel, [] even if a
federal interpleader action was unavailable, a state-law action against the parish or its current
counsel to recover for his services was possible”). Further, some Tenth Circuit caselaw has
focused the interest-impairment analysis on whether the “resolution of the legal questions in the
case effectively forecloses the rights of the proposed intervenor in later proceedings, whether
through res judicata, collateral estoppel, or stare decisis.” Ute Distrib. Corp. v. Norton, 43 F.
App’x at 279 (citing Fed. Deposit Ins. Co. v. Jennings, 816 F.2d 1488, 1492 (10th Cir. 1987)).22
Accordingly, the Court examines whether the litigation outcome will affect the Officers
Association’s ability to protect its interest in preserving its CBA down the road.
There are two basic possible outcomes: a settlement agreement or a trial. First, the Court
may approve the Original Settlement Agreement or approve a later proposed Settlement
Agreement. Either of these outcomes will result in a finalized Settlement Agreement in which
Albuquerque will agree to implement policies to resolve the issues. Even if Albuquerque agrees
to implement any policies that violate the CBA in the finalized Settlement Agreement, the finalized
Settlement Agreement will not affect the Officers Association’s ability to protect its interest in

22

Wright and Miller note that the 1966 amendment to rule 24(a) was meant to permit
intervention by those movants who were “practically disadvantaged by the disposition of the action
and to repudiate the view, expressed in authoritative cases under the former rule, that intervention
must be limited to those who would be legally bound as a matter of res judicata.” Wright & Miller,
7C Fed. Prac. & Proc. Civ. § 1908.2 (3d ed.). Accordingly, stare decisis, for example, “by itself
may, in a proper case, supply the practical disadvantage that is required for intervention under Rule
24(a)(2).” Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1908.2 (3d ed.)

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preserving the CBA, because other mechanisms are available for the Officers Association to
resolve its grievance. The Officers Association could file a breach-of-contract lawsuit in state
court. Alternatively, the Officers Association could file a grievance under the PEBA, see PEBA
§ 10-7E-8, or under the Labor Ordinance to obtain an administrative hearing, see Labor Ordinance
§ 3-2-10. In fact, these administrative mechanisms may afford the Officers Association more
protections for its interest in preserving its CBA than intervention in the federal case. Intervention
gives the Officers Association merely the right to present its Objections to the Court. It does not
make the Officers Association a party to the Settlement Agreement, nor does it give the Officers
Association the ability to override the Settlement Agreement. Of course, the Court could reject
the Original Settlement Agreement based on the Officers Association’s Objections. The federal
case offers only a time-intensive, inefficient solution of throwing out the entire Settlement
Agreement and starting from scratch each time the Officers Association objects -- while the PEBA
and the LRMO give Albuquerque and the Officers Association an administrative hearing with
officers who are experienced in resolving these disputes in a setting structured for this purpose.
See PEBA § 10-7E-8; Labor Ordinance § 3-2-10. The best way to resolve a CBA dispute may be
to follow the CBA mechanism for disputes and sit at the bargaining table to develop a
memorandum of understanding.

Alternatively, the litigation could result in a trial and an

injunction. If injunctive relief were the ultimate outcome, and Albuquerque implemented new
procedures to execute the injunction, the Officers Association again has all the aforementioned
relief mechanisms to remedy any dispute. The Court finds it difficult to say that a movant with
four preestablished mechanisms for resolving a dispute pertaining to its interest in its CBA faces
such a threat of impairment that it must intervene in a suit where the resolution will not determine

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any issues related to its CBA and thus will not prevent, through res judicata, collateral estoppel, or
stare decisis, the movant from protecting its interest.
The Court acknowledges other, published Tenth Circuit caselaw makes it clear that an
alternative forum is not enough: “‘[W]here a proposed intervenor’s interest will be prejudiced if it
does not participate in the main action, the mere availability of alternative forums is not sufficient
to justify denial of a motion to intervene.’” Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1254
(quoting Commodity Futures Trading Comm’n v. Heritage Capital Advisory Serv., 736 F.2d 384,
387 (7th Cir. 1984)). The Court construes this language to mean that, although the existence of an
alternative forum is not enough on its own, the Court can consider the number and quality of
available alternative fora to determine whether the interest is impaired. In this case, that analysis
would show that there are four available fora for the Officers Association to protect its interest -state court, Labor Ordinance, PEBA, and the bargaining table -- and, as discussed supra, these fora
would offer at least as much protection as intervention. The Court notes, however, that the Tenth
Circuit’s analysis regarding alternative fora is cursory23 and, when coupled with its caselaw

23

The Tenth Circuit gives a brief analysis:

Plaintiffs also contend the intervenors' interests are not impaired because they
would be able to participate in the formulation of a revised land use plan for the
area should it lose its monument status. Again we disagree. “[W]here a proposed
intervenor's interest will be prejudiced if it does not participate in the main action,
the mere availability of alternative forums is not sufficient to justify denial of a
motion to intervene.” Commodity Futures Trading Comm’n v. Heritage Capital
Advisory Serv., 736 F.2d 384, 387 (7th Cir. 1984). Moreover, the possibility of
impairment is not eliminated by the intervenors' opportunity to participate in the
formulation of a revised land use plan that, at most, would not provide the level of
protection to the intervenors' interests that the current plan offers.
Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1254.

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emphasizing the minimal burden of impairment, suggests that alternative fora are unlikely to
mitigate interest-impairment.
The fourth factor is whether the existing parties adequately represent the Officers
Association’s interest. See Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d at 1103.
Neither the United States nor Albuquerque asserts that they are adequate representatives of the
Officers Association’s interests in this litigation. See U.S. MTI Response at 4; MTI MOO at 4-8
(Brack, J.). A party’s own concession that it does not adequately represent the movant’s interests
or omission that it could adequately represent the movant’s interest should not be taken lightly.
But the Court examines the parties’ ability for adequate representation anyway. The United States
asserts that Albuquerque and the Officers Association “have exactly the same interest when it
comes to the United States’ allegations that APD officers engaged in unconstitutional conduct:
both deny such allegations.” U.S. MTI Response at n.4. The Court, however, has already
concluded that the Officers Association does not have a protected interest in the United States’
allegations in the Complaint, and that it has an interest only in the Original Settlement Agreement
and how it may conflict with the CBA. Regardless, the United States does not share an interest
with the Officers Association in protecting the CBA, because the United States is not a party to
the CBA and has no interest in the CBA.
The Court looks at whether the remaining party, Albuquerque, adequately represents the
Officers Association’s interest in the CBA. Albuquerque, as a party to the CBA, similarly shares
an interest in protecting the CBA. Albuquerque and the Officers Association, however, had
sufficiently different interests in the CBA that it took them over four years to negotiate the final
agreement. See MTI at 10; Amicus Curiae at 2. Thus, even though the CBA is a result of the
resolution of competing interests, the underlying competing interests render Albuquerque’s

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interest in the CBA distinct, and perhaps even somewhat contrary for certain provisions, to the
Officers Association’s interest in the CBA. That Albuquerque agreed to an Original Settlement
Agreement provision that directly contradicted a CBA provision speaks to the different interests.
See Albuquerque MTI Response at 10. Thus, the Court concludes that Albuquerque does not
adequately represent the Officers Association’s interest in the CBA.
Albuquerque and the Officers Association point to cases from Courts of Appeals other than
the Tenth Circuit to demonstrate support for their argument that the Officers Association does not
have an interest in the litigation. Albuquerque relies heavily on Floyd v. City of New York, which
denied a police union’s motion to intervene, in part, because the union did not have a protectable
interest in the litigation. See Albuquerque MTI Response at 6 (citing Floyd v. City of N.Y., 770
F.3d at 82). Examining the first alleged interest in defending officers from liability, Albuquerque
contends that, in Floyd v. City of N.Y., the lawsuit was against New York City and the Police
Department and not against individual officers. See Albuquerque MTI Response at 5. In this case,
Albuquerque argues, the lawsuit also is against Albuquerque and not against individual officers.
Thus, Albuquerque argues, the Court should follow Floyd v. City of N.Y.’s reasoning and deny
the MTI. See Albuquerque Motion Response at 5-6.
In contrast, the Officers Association relies heavily on United States v. City of L.A. See
MTI at 5-8. Examining the first interest, the Officers Association argues that, similar to the United
States in this case, the plaintiff had filed a complaint that “seeks injunctive relief against its
member officers and raises factual allegations that its member officers committed unconstitutional
acts in the line of duty.” MTI at 9 (quoting United States v. City of L.A., 288 F.3d at 399). Thus,
the Officers Association argues, because the Ninth Circuit in United States v. City of L.A
concluded that those facts were sufficient “‘alone’” to show that the police union had a protectable

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interest, then the Court should follow the Ninth Circuit’s reasoning and grant the MTI. See MTI
at 6 (quoting City of L.A., 288 F.3d at 399).
Neither case is on-point, although the United States v. City of L.A is more similar to this
case than Floyd v. City of N.Y. In United States v. City of L.A, the United States filed its complaint
the same day that it, along with the defendant, filed a “Joint Application to Enter Consent Decree”
and the proposed settlement agreement. United States v. City of L.A, 288 F.3d at 396. Thus, the
complaint was a legal fiction in that the parties immediately began moving towards settlement, but
there was a possibility that settlement would not work and that the United States would continue
to seek injunctive relief. In this case, the United States filed its Complaint the same day that it and
Albuquerque filed the Original Settlement Agreement. See Complaint; Original Settlement
Agreement. Thus, the Complaint is a legal fiction in that the parties immediately started pursuing
settlement, although the possibility existed that Judge Brack would not approve Original
Settlement Agreement. Thus, the immediate move towards settlement in both cases mitigates any
threat towards the officers’ interest. Moreover, like the United States v. City of L.A complaint,
this Complaint “seeks injunctive relief against its member officers and raises factual allegations
that its member officers committed unconstitutional acts in the line of duty.”24 United States v.
City of L.A 288 F.3d at 399. See Complaint at 1.

24

Albuquerque states that the United States v. City of L.A complaint was “against
individual union member officers, against whom the United States sought injunctive relief,”
Albuquerque MTI Response at 5 (citing United States v. City of L.A, 288 F.3d at 399), in contrast
to this Complaint, which Albuquerque argues does not seek relief “punishing individual officer
behavior,” Albuquerque MTI Response at 6. This language muddies the actual underlying facts.
The United States did not name any individual officers in its complaint in United States v. City of
L.A. See Intervenor-Appellant’s Brief in City of L.A., 2001 WL 34093539 at * 2 (“[The United
States[] is suing the City of Los Angeles [], not individual police officers, under 42 U.S.C. § 14141
alleging a pattern and practice by Los Angeles police officers that deprives persons of rights,
privileges, and immunities secured or protected by the Constitution or law of the United States.”).

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However, the Court concludes that the United States v. City of L.A officers had a more
direct and substantial interest in the action.25 In this case, the officers are accused of excessive
force, but the Complaint clarifies that the excessive use of force is part of APD’s patterns and
practices. See Complaint ¶ 7, at 3 (“The pattern or practice of use of excessive force stems from
systemic deficiencies in the Defendant’s policies, training, supervision, recruiting, hiring, internal
investigations, and external oversight.”); id. ¶ B, at 12 (stating that, although the less-lethal-force
claim does not specifically allege system deficiencies, it incorporates everything from the deadlyforce claim, including that excessive force in general stems from systemic deficiencies); id. ¶ 17,
at 5 (“The use of excessive force by Albuquerque police officers is the result of the Defendant’s
failure to institute adequate controls and systems of accountability to detect, correct, and prevent
officer misconduct.”). The individual officers’ actions still compose the Complaint’s underlying
facts, but the Complaint makes it clear that those actions can be traced back to Albuquerque’s
patterns or practices. In contrast, the United States v. City of L.A complaint appears to have
alleged generalized wrongdoing by the officers that may have been outside the scope of their
employment. See Intervenor-Appellant’s Brief, 2001 WL 34093539, at *2 (stating that the
complaint alleged, “among other things, that League members use excessive force against persons,
falsely arrest persons, improperly stop, search and seize persons, and engage in other misconduct”
and that “in an attempt “to remedy these individual acts committed by League members, the
Complaint (in its prayer) seeks an order enjoining League members”). The complaint focused on

25

The facts in Floyd v. City of N.Y. are very different from the facts in this case, so it is of
minimal help in deciding the issue. In Floyd v. City of N.Y., the police union not only submitted
an untimely motion, but it only argued one protectable interest: “conclusory,” “speculative,” and
not legally protected “reputational damage,” which was only tenuously related to the excessiveforce claims in the complaint. 770 F.3d at 1056.

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a division of the Los Angeles Police Department that, “according to the testimony of a former
LAPD officer, had engaged in widespread misconduct and corruption.” Floyd v. City of N.Y., 302
F.R.D. at 106. The testimony led to over 150 civil lawsuits and the overturning of dozens of
convictions. See Floyd v. City of N.Y., 302 F.R.D. at n.18. It also appears that the independent
monitor investigated police corruption, which could have led to further charges beyond what was
in the complaint. See United States v. City of L.A., 2002 WL 31288087, at *1 (stating that the
independent monitor was “charged with collecting information and investigating alleged police
corruption”). Most important, the United States v. City of L.A. officers faced a greater possibility
of liability than the Officers Association’s members, because the United States v. City of Los
Angeles’ proposed settlement agreement had a provision permitting “the United States to seek its
dissolution in certain circumstances and litigate the action on the merits.” Floyd v. City of N.Y.,
302 F.R.D. at 107. In contrast, the Original Settlement Agreement contains a provision for the
parties jointly to terminate the finalized Settlement Agreement after four years, a provision for
either party to dissolve the agreement after a period of six years, and nothing about the United
States litigating the action on the merits after termination. See Original Settlement Agreement ¶¶
342-344, at 103-04. So the protectable interest was more substantial in United States v. City of
Los Angeles than in this case, because there was a greater threat of litigation against individual
officers. The Ninth Circuit, however, does not bind the Court. Even if the United States v. City
of Los Angeles police officers’ interest is identical to the Officers Association members’ interest,
the Court is not persuaded that the interest is sufficiently substantial or direct to meet the standard
as discussed above.
Albuquerque relies heavily on Johnson v. Lodge No. 93 to undermine the Officers
Association’s protectable interest in the CBA.

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See Albuquerque MTI Response at 7-8.

Albuquerque argues that Johnson v. Lodge No. 93 permits it to enter into the Original Settlement
Agreement because of the CBA’s managerial-rights provision. See Albuquerque MTI Response
at 7. The managerial-rights provision in that case stated that the police union
recognizes the prerogative of Employer [the City] to operate and manage its affairs
in all respect and in accordance with its responsibilities, and the powers of authority
which Employer has not officially abridged, delegated, granted or modified by this
Agreement are retained by Employer, and all rights, powers, and authority
Employer had prior to the signing of this Agreement are retained by Employer and
remain exclusively without limitation within the rights of Employer.
Johnson v. Lodge No. 93, 292 F.3d at 1100 (alteration in Johnson v. Lodge No. 93). The
management-rights provision then listed fourteen topics over which Tulsa did not need to bargain
“including matters such as the assignment of working hours, hiring and promotions, the allocation
of work assignments, and officer discipline.” Johnson v. Lodge No. 93, 292 F.3d at 1101. It
further noted that Tulsa had “the right to determine [Tulsa Police Department] policy, to manage
the affairs of the Police Department in all respects, and to introduce new, improved or different
methods and techniques of Police Department operation or change existing methods and
techniques.” Johnson v. Lodge No. 93, 292 F.3d at 1101 (alteration added and not in original).
Because the Tenth Circuit concluded in Johnson v. Lodge No. 93 that the managerial-rights
provision “plainly encompassed the city’s right to enter into a remedial settlement agreement
during the term of the collective bargaining agreement,” Albuquerque MTI Response at 8 (citing
Johnson v. Lodge No. 93), Albuquerque argues that the Court should conclude that the CBA’s
managerial-rights provision also encompasses Albuquerque’s right to enter into the Original
Settlement Agreement with the United States, see Albuquerque MTI Response at 8. The CBA’s
managerial-rights provision, however, does not merit such a conclusion.

Albuquerque

acknowledges that the CBA’s managerial-rights provision clarifies that only directives, rules, and

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regulations that “do not conflict with this [Collective Bargaining] Agreement” will bind the
Officers Association. CBA § 32.2, at 41-42. See Albuquerque MTI Response at 8. Further,
Albuquerque omits the portion of the managerial-rights provision that states that a Memorandum
of Understanding “between the parties must be reached an[d] executed in the case where either
party wishes to change or amend a policy which would be in conflict with the provisions of this
Agreement.” CBA § 32.2, at 42. Accordingly, if Albuquerque wants to change a policy as part of
the Original Settlement Agreement, it must negotiate a Memorandum of Understanding with the
Officers Association. Thus, Albuquerque does not have the power to implement policies that
conflict with the CBA.
That the managerial-rights provision restrains Albuquerque does not mean that the Officers
Association can “veto all settlements that touch on the terms and conditions of its members’
employment.” Albuquerque MTI Response at 8 (citing Johnson v. Lodge No. 93, 292 F.3d at
1105). The Court is not concluding that the Officers Association has veto power; an interest does
not give a party any right greater than the party had before intervention. See WildEarth Guardians
v. U.S. Forest Serv., 778 F. Supp. 2d at 1149 (“‘Allowing [a party] to intervene does not mean that
it can veto the settlement . . . . The district court can still approve the consent decree if it finds that
the settlement is reasonable, fair and consistent with [federal law].’”)(quoting United States v.
Albert Inv. Co., 585 F.3d at 1398 (alterations in WildEarth Guardians v. U.S. Forest Serv.)(internal
citations omitted)). Although the Officers Association retains the rights that it had before
intervention to resolve Albuquerque’s breach of the CBA through state court or through
administrative mechanisms, intervention does not grant it a new right to veto the Settlement
Agreement. Rule 24 does not establish substantive rights under the Rules Enabling Act; the
Federal Rules of Civil Procedure grants only procedural rights. It is concluding, however, that the

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Officers Association has a protectable interest in preserving its CBA and at least trying to keep
Albuquerque from making unilateral changes to the CBA in the Settlement Agreement.
Albuquerque argues, in the alternative, that the Officers Association does not have standing
to intervene. See Albuquerque MTI Response at 14. The Tenth Circuit has noted that rule 24(a)’s
“provisions cannot remove the Article III hurdle that anyone faces when voluntarily seeking to
enter a federal court,” and thus, “Article III’s requirements apply to all intervenors, whether they
intervene to assert a claim or defend an interest.” Safe Streets All. v. Hickenlooper, 859 F.3d 865,
912 (10th Cir. 2017)(emphasis in Safe Streets All. v. Hickenlooper)(citing Wittman v.
Personhuballah, -- U.S. --, 136 S. Ct. 1732, 1735-37 (2016); Hollingsworth v. Perry, 570 U.S. 693,
697-711 (2013), abrogating in part San Juan Cty. v. United States, 503 F.3d at 1172 (stating that a
movant seeking intervention under rule 24(a) or rule 24(b) did not need to establish Article III
standing if another party with constitutional standing on the movant’s side was still in the case )).
Two years later, the Tenth Circuit issued an opinion clarifying its statement in Safe Streets
Alliance, calling the statement “dicta.” Kane Cty., Utah v. United States, 928 F.3d at 887 n.11.
The Tenth Circuit clarified:
Safe Streets involved two States (Nebraska and Oklahoma) seeking to intervene as
plaintiffs in an action against another State, Colorado. There, we held that we were
without subject matter jurisdiction to consider the State’s intervention motion,
because 28 U.S.C. § 1251(a) gave exclusive subject-matter jurisdiction to the
United States Supreme Court to resolve disputes between two states. Id. at 877,
912. Furthermore, Safe Streets relied on Hollingsworth v. Perry, 570 U.S. 693,
708, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), for this dicta about constitutional
standing, but Hollingsworth, in fact, applied the piggyback standing rule. There,
the intervenors had to demonstrate their own standing because they were the sole
parties to seek an appeal. Id. at 702, 708, 133 S.Ct. 2652. Here, the United States
remains a party. The dissent also cites United States v. Colorado & Eastern
Railroad Company, 882 F.3d 1264 (10th Cir. 2018). But again, that case is
inapposite because there the would-be intervenor seeking to enforce a consent
decree that it was not a party to “could not ‘piggyback’ on the standing of one of
the described parties to the Consent Decree because there was no current case or

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controversy pending before the court on the part of those parties.” Id. at 1268. In
contrast, there exists a live controversy between the United States and the plaintiffs
in this case.
Kane Cty., Utah v. United States, 928 F.3d at 887 n.11 (emphases in Kane Cty., Utah v. United
States). Thus, if the Court was deciding the MTI now, the Officers Association, which is seeking
relief beyond what Albuquerque is seeking, would have to meet independently the Article III
requirements. See Kane Cty. v. United States, 928 F.3d 877, 886-87 (10th Cir. 2019)(quoting
Town v. Chester, N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1648 (2017)). At the time of the
MTI, however, the Court would need to decide only whether another party with constitutional
standing on the same side as the Officers Association had standing, and Albuquerque would
provide the Officers Association with that standing.26
B.

THE PARTIES HAVE NOT ASKED THE COURT TO RECONSIDER
JUDGE BRACK’S MOTION TO INTERVENE MOO.

The parties have not asked the Court to reconsider Judge Brack’s MTI MOO, although
MTI MOO does not bind the Court, under the law-of-the-case doctrine. See generally Objections;
Albuquerque Objections Response; United States Objections Response. As the Tenth Circuit
noted in Rimbert v. Eli Lilly & Co., 647 F.3d 1247 (10th Cir. 2011), the law-of-the-case doctrine
“does not bind a judge to follow rulings in the same case by another judge of coordinate jurisdiction
as long as prejudice does not ensue to the party seeking the benefit of the doctrine.” 647 F.3d at

26

The Tenth Circuit approvingly cited other Courts of Appeals that have concluded that a
party that satisfies rule 24(a) categorically satisfies Article III standing’s requirements, although
the Tenth Circuit did not go as far as to adopt explicitly these propositions. See Kane Cty. v, Utah
v. United States, 929 F.3d at 889 n. 14 (“Other courts have recognized that ‘any person who
satisfies Rule 24(a) will also meet Article III’s standing requirement.’”)(citing Roeder v. Islamic
Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003); Sokaogon Chippewa Cmty. v. Babbit, 214
F.3d 941, 946 (7th Cir. 2000)). The Officers Association’s fulfillment of rule 24(a)’s requirements
should be sufficient to establish Article III standing under Tenth Circuit law.

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1251 (quoting United States v. Johnson, 12 F.3d at 1544). “The relevant prejudice is limited to
lack of sufficient notice that one judge is revisiting the decision of a prior judge and the opportunity
to be heard with respect to the new ruling.” Rimbert v. Eli Lilly & Co., 647 F.3d at 1251. Because,
however, no party has asked the Court to reconsider, Judge Brack’s decision to permit intervention
stands.
C.

THE COURT WILL STRICTLY LIMIT THE OFFICERS ASSOCIATION’S
STATUS AS AN INTERVENOR TO PROTECT ITS INTEREST IN ITS
CBA.

The Officers Association asked Judge Brack to determine its intervenor status for two
phases of litigation -- the remedial phase and the liability phase -- and Judge Brack split the case
into two these phases when deciding on the Officers Association’s intervenor status. See MTI
MOO at 4 (Brack, J.)(granting the Officers Association intervenor status in the remedial phase of
the litigation and deferring rule on the Officers Association’s intervenor status in the liability
phase.). The Court has searched diligently through Judge Brack’s opinions and the record for a
clear definition of the remedial phase and the liability phase of the litigation, but Judge Brack does
not give explicit definitions for liability phase and remedial phase. The first mention the Court
finds of the remedial and liability phases of litigation is in the Officers Association’s MTI. See
MTI at 4. The Officers Association, however, does not provide its definitions for the remedial and
liability phases of litigation and only indicates their intended meanings, as discussed supra. The
Officers Association seems to have lifted these terms from a case it cites out of a different Court
of Appeals -- the Ninth Circuit. See MTI at 7. That case is United States v. City of L.A., in which
the Ninth Circuit affirmed in part and reversed in part the district court’s ruling on a police union’s
motion to intervene. 288 F.3d at 395. In United States v. City of L.A., the district court had
divided the litigation into the two phases -- the merits phase and the remedial phase -- and

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determined whether the police union had a right to intervene in each of the phases of litigation.
See 288 F.3d at 399. The district court determined that: (i) the police union did not have a
protectable interest in the merits phase of the litigation, because the district court assumed that it
would approve and finalize the consent decree, and because the sought injunction applied only to
Los Angeles; and (ii) the police union did have a protectable interest in the remedial phase of
litigation, because state law entitled the police union to negotiate employment terms and to rely on
the CBA that resulted from those negotiations. See 288 F.3d at 399-400. Thus, the district court
appears to define the merits phase of litigation as the stage of litigation before settlement or trial,
and the remedial stage of litigation as everything pertaining to the settlement after it is approved
and entered. Speaking to the merits phase, the Ninth Circuit stated:
The district court erred as to the merits of the action. Of course, as the
district court noted, the Police League and the officers it represents have no
protectable interest in violating other individuals' constitutional rights. No one
could seriously argue otherwise. However, the Police League claims a protectable
interest because the complaint seeks injunctive relief against its member officers
and raises factual allegations that its member officers committed unconstitutional
acts in the line of duty. These allegations are sufficient to demonstrate that the
Police League had a protectable interest in the merits phase of the litigation.
The district court found that the Police League did not have a protectable
interest in the merits because the proposed consent decree's injunctive provisions
pertained only to the City defendants and because approval of the proposed decree
would obviate the need to prove liability. However, in reaching these conclusions
the court impermissibly assumed that it would in fact approve the proposed consent
decree. No hearing had yet been held on the consent decree and it was unknown
whether the district court would enter a decree at all or, if so, in the form then
proposed.
United States v. City of L.A., 288 F.3d at 399. The Ninth Circuit notes that,
[w]hen the potential scope of an action is narrowed by amended pleadings or court
orders, or when an existing party expressly and unequivocally disclaims the right
to seek certain remedies, the court may consider the case as restructured rather than
on the original pleadings in ruling on a motion to intervene.

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288 F.3d at 399.

The Ninth Circuit clarifies that a court making a motion-to-intervene

determination cannot exclude from consideration the party’s interests in the liability phase of
litigation if the case has not been restructured or if the party’s disclaimer in any interests is
conditional. See 288 F.3d at 399 (stating that if the action’s restructuring “has not yet been
accomplished, or if a party's disclaimer of certain remedies is contingent rather than unequivocal,
then the district court is not free to consider the potential for issue reduction when determining
whether a putative intervener has a protectable interest in the merits”). The Ninth Circuit,
therefore, appears to define the merits phase of the litigation as the time before settlement or trial.
If remedies are sought against a party, the Ninth Circuit concludes, that party has a protectable
interest in the merits phase of litigation until either the other party disclaims the remedy
“unequivocally and completely,” or the court enters a settlement agreement in which the other
party disclaims the remedy “unequivocally and completely.” United States v. City of L.A., 288
F.3d at 399. Thus, the Ninth Circuit narrows the Officers Association’s definition of the merits
phase of litigation by noting that an unequivocal and complete disclaimer of a remedy ends the
liability phase for that remedy.
In terms of the litigation’s remedial phase, the Ninth Circuit states:
The district court correctly concluded that the Police League had a protectable
interest in the remedy sought by the United States. The Police League has statelaw rights to negotiate about the terms and conditions of its members’ employment
as LAPD officers and to rely on the collective bargaining agreement that is a result
of those negotiations. See Cal Gov’t Code §§ 3500-3511. These rights give it an
interest in the consent decree at issue.
...
Thus, the Police League’s interest in the consent decree is two-fold. To the
extent that it contains or might contain provisions that contradict terms of the
officers’ [Memorandum of Understanding (“MOU”)], the Police League has an
interest. Further, to the extent that it is disputed whether or not the consent decree

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conflicts with the MOU, the Police League has the right to present its views on the
subject to the district court and have them fully considered in conjunction with the
district court’s decision to approve the consent decree.
288 F.3d at 400 (citing EEOC v. AT&T, 506 F.2d 735, 741-42 (3d. Cir. 1974)). The Ninth Circuit,
similarly to the Officers Association, limits the remedial phase actions relating to the consent
decree’s implementation that occur after the court has entered the finalized consent decree. See
United States v. City of L.A., 288 F.3d at 400. Thus, it could be extrapolated from the Ninth
Circuit’s decision that the moment before the court enters the Settlement Agreement, the case is
in the litigation phase, because the parties are still moving towards a trial or other adjudication of
liability; and the moment after the court enters the Settlement Agreement, the case enters the
litigation’s remedial phase, in which the court no longer is tasked with adjudicating guilt and
instead crafts and monitors the appropriate remedies.

The Court agrees with these broad

definitions and defines the liability phase as all actions and events before liability is decided or
settled -- in this case, when the Settlement Agreement, is entered -- and the remedial phase as all
actions and events related to the finalized remedy, which in this case is also the Settlement
Agreement. Thus, all objections to the Proposed Settlement Agreement before its finalization
would be part of the litigation’s liability phase.
Judge Brack determined intervenor status for only the “remedial” stage of the case, and he
left the question of intervenor status for the “liability” stage of the case, although he treats them
differently than this Court defines them. MTI MOO at 4 (Brack, J.). Judge Brack’s rulings on
Objections shed light on how he defines the phases of litigation. He concluded there are three
bases for permitting Objections: (i) a conflict between the Settlement Agreement and the law; (ii) a
conflict between the Settlement Agreement and the CBA; and (iii) the mandatory obligations the
Settlement Agreement places on the Officers Association. See Original Settlement Agreement

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MOO (Brack, J.).

Consistent with this conclusion, Judge Brack was quick to note that policy

concerns are not a sufficient basis for an Objection, although he often overruled these Objections
anyway, even after acknowledging that the Objection was beyond the agreement’s scope. See
Original Settlement Agreement MOO at 23 (Brack, J.)(declining to rule on use-of-force definitions
and training officers, because, he stated, Albuquerque and the Officers Association could negotiate
these terms); Original Settlement Agreement MOO at 24 (Brack, J.)(overruling Objections
regarding new technology and equipment policies even after stating that these Objections “were
beyond the scope of the agreement”); Original Settlement Agreement MOO at 27 (Brack,
J.)(appearing to overrule the Officers Association’s Objections that they were excluded from the
Mental Health Response Advisory Committee, even though he states that the Objection is a “policy
question beyond the expertise of this Court”). In contrast, Judge Brack tackles the merits of
Objections that the Officers Association argues conflicts with the CBA or the law. See, e.g.,
Original Settlement Agreement MOO at 25 (Brack, J.)(deciding the Objections to “perceived
changes to the policies for promotions, evaluations, and assignments,” which were based on CBA
provisions). Thus, Judge Brack appears to narrow the scope of permitted Objections to limit the
Objections only to those Objections that allege that the Settlement Agreement violates the CBA
or law, or imposes mandatory obligations on the Officers Association. The below table reviews
the Officers Association’s Objections and whether Judge Brack permitted the Objection.

The Officers
Association’s
Objections Categorized
by Judge Brack

The Officers
Association’s
Grounds for its
Objections

Judge Brack’s Posture Towards the
Objection

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1. Investigation
Procedures

CBA § 2.3.1.4;
Fifth Amendment
rights; due process
rights.
CBA § 20.1.6

Judge Brack allowed these Objections and
ruled on their substance.

Criminal
Investigations by
Internal Affairs
Bureau
2. Civilian Complaints
and the Oversight
Agency
Albuquerque City
Ordinance created Civilian
Police Oversight
Agency
3. Officer Privacy

CBA § 20.1.7-8

Judge Brack allowed these Objections and
ruled on their substance.

CBA § 20.1.3.1-2

Judge Brack allowed these Objections and
ruled on their substance.

CBA § 20.1.19

Judge Brack did not allow the Objection,
because the ordinance’s legality is beyond
the scope of current litigation.

CBA § 20.2.10

Drug Testing and
Mental Health
Evaluations
4. Discipline Policy
Early Intervention
System
Disciplinary
Matrix

CBA § 20.2.10

Judge Brack allowed these Objections and
ruled on their substance.
Judge Brack allowed these Objections and
ruled on their substance.

Force Review
Board

Definitions of
force and
standards for

CBA § 21.1.1

Judge Brack allowed these Objections and
ruled on their substance.

Judge Brack allowed these Objections and
ruled on their substance.

Violation of due
process27

Judge Brack declined to rule on this
Objection; the Settlement Agreement does
not specify levels and types of discipline, or
process. “The Court will not unnecessarily
decide which issues require mandatory
bargaining. For now, the Agreement as
written does not yet create a disciplinary
system for the Union to challenge.” Original
Settlement Agreement MOO at 23.
Definition and
Judge Brack declined to rule on these
standards of force
Objections regarding clarifying definitions
above constitutional and training officers, and he overruled the

27

Judge Brack characterizes the basis for this objection as violating the presumption of
innocence. See Original Settlement Agreement MOO at 23 (Brack, J.). The First Settlement
Agreement Objections offer some clarity, stating that the matrix is a “complete violation of the
officer’s rights to due process and the law regarding the burden of proof resting [on] the employer.
So much for guilty until proven.” First Settlement Agreement Objections at 12.

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using force;
proper training on
standards.

5. New Policies
Regarding Technology
and Equipment

Preservation of
Camera Footage

6. Promotions,
Evaluations, and
Assignments.

maximum; proper
training, clarified
confusion”)

Policy concerns

Policy concerns, a
due process
violation, and a
conflict with the
collective
bargaining
agreement
CBA § 14.1;
14.1.2; 17.1; 17.3.2

Objection regarding the use-of-force
standard. In terms of clarifying definitions
and training officers, Judge Brack stated that
“the City and Union can negotiate on their
own terms.” Original Settlement Agreement
MOO at 23. In terms of the use-of-force
standard, Judge Brack stated that, “[p]olice
departments are free to set their own
standards and policies. Changing the
definition of excessive force in a police
handbook does not alter the constitutional
standard and does not increase officers’
constitutional liability.” Original Settlement
Agreement MOO at 23.
Judge Brack overruled these Objections,
stating that these issues were “beyond the
scope of the agreement.” Judge Brack
elaborated on his decision, stating that the
Settlement Agreement “does not mandate
any form or level of discipline. It merely
states that the failure to follow APD policy
will result in discipline.”
Original
Settlement Agreement MOO at 24. Thus,
Judge Brack concluded, “[s]hould the City
and the Union determine that the technology
policies require further clarification, they are
free to adopt more detailed policies -- so long
as they comport with the baseline
requirements in the Agreement . . .
Presumably, the City and the Union will
negotiate the impacts of their policies in their
next collective bargaining session.” Original
Settlement Agreement MOO at 24-25.
Judge Brack allowed these Objections and
ruled on their substance.

Judge Brack allowed these Objections and
ruled on their substance.

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Crisis
Management
Training
7. Department
Policymaking
APOA exclusion
from Mental
Health Response
Advisory
Committee

Efficiency concerns

Judge Brack allowed these Objections and
overruled them.

Policy concerns28

Although it appears as if Judge Brack
declines to rule on this Objection, because he
states that it is a “policy question beyond the
expertise of this Court,” he seems to overrule
it, because he says it “fails for a similar
reason” as another Objection that he
explicitly overrules. Original Settlement
Agreement MOO at 27.
The Court
concludes that Judge Brack’s reasoning for
overruling the objection is that, “[i]n general,
the City retains the right to develop and
implement Department policy.” Original
Settlement Agreement MOO at 27 (citing
CBA § 32.1).
Judge Brack overruled the Objection,
because the review of use-of-force
investigations and data collection on use-offorce investigations “are not areas where the
Union has traditionally had a voice.”
Original Settlement Agreement MOO at 27.
Judge Brack allowed this Objection and
ruled the Objection, stating that the
Objection has no foundation, because the
Officers Association was invited to attend

APOA exclusion
from Force
Review Board

Policy concerns29

APOA exclusion
from Policy and
Procedures
Review Board

Policy concerns30

28

Unusually, Judge Brack notes that the Officers Association has given no legal basis for
this Objection. See Original Settlement Agreement MOO at 27.
29

The Officers Association argues that it should be included on the Force Review Board,
because “it is clear from the Settlement Agreement this board will operate outside the time limits
imposed in the CBA to conduct administrative investigations.” Objections Reply at 14. Judge
Brack does not address this argument. The Court presumes that Judge Brack does not address this
argument, because the argument does not support the conclusion that the Officers Association
should be included on the Force Review Board. The Officers Association’s argument supports an
Objection to the Force Review Board itself, but the Officers Association does not make that
Objection.
30

Specifically, the Officers’ Association stated that its participation in the Policy and
Procedures Review Board “has not been readily recognized by the Department,” and that it does
not know how the Policy and Procedures Review Board will make the necessary changes in
accordance with the Settlement Agreement without the Officers Association’s participation. See
First Settlement Agreement Objections Reply at 8.

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Stipulated
Modifications
under ¶ 338 of
Original
Settlement
Agreement

OVERALL
OBJECTIONS

and participate in Policy and Procedures
Review Board meetings but did not attend
those meetings.
Judge Brack allowed this Objection and
overruled it, stating that he “is not concerned
that this provision will impair the [Officers
Association’s] interests,” because the
provisions’ existence “was one of the bases
the Court cited for permitting the [Officers
Association] to intervene into this lawsuit.”
Original Settlement Agreement MOO at 28.
Judge Brack concluded with a statement that
he overruled all of the Officers Association’s
objections, because: (i) the Settlement
Agreement did not conflict with state law;
(ii) the Settlement Agreement did not
conflict with the CBA; and (iii) the
Settlement Agreement did not “impose any
mandatory obligations” on the Officers
Association and that the Officers Association
“may choose to negotiate many of the
specific policies and their implications.”
Original Settlement Agreement MOO at 28.

Explaining his decision, Judge Brack writes:
The Union requests intervention for both the liability and the remedial phases of
litigation. Most of the Union’s argument, however, focus[es] on intervention in the
remedial phase. The Court will rule currently on the Union’s motion to intervene
in the remedial phase and will defer the ruling on the motion to intervene in the
liability phase. See San Juan Cty., 503 F.3d at 1189 (discussing a district court’s
flexibility in permitting intervention for certain matters). If the Court oversees a
liability phase in this litigation, it will consider the [Officers Association’s] motion
to intervene as timely.
MTI MOO at 4 (Brack, J.). The practice of deciding intervention for each stage of the case
individually stems from the advisory committee’s note to rule 24(a) of the Federal Rules of Civil
Procedure, which authorizes courts to “subject [an intervention of right under the amended rule]

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to appropriate conditions or restrictions responsive among other things to the requirements of
efficient conduct of the proceedings.” Fed. R. Civ. P. 24(a), advisory committee notes. See Forest
Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496-97 (9th Cir. 1995)(citing rule 24(a)
for the proposition that a district court can limit intervention to issues for which the nonparty has
a “‘sufficient interest’”), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630
F.3d 1173 (9th Cir. 2011)(quoting United States v. S. Fla. Water Mgmt. Dist., 922 F.3d 704, 707
n. 4 (11th Cir. 1991). Courts have interpreted the advisory committee notes to mean that they can
limit the scope of an intervenor’s party status. See, e.g., United States v. City of Detroit, 712 F.3d
925, 931 (6th Cir. 2013)(stating that “courts are not faced with an all-or-nothing choice between
grant or denial: Rule 24 also provides for limited-in-scope intervention”); Thomas v. Bakery,
Confectionery & Tobacco Workers Int’l Union, 982 F.2d 1215, 1220 (8th Cir.1992), cert. denied,
508 U.S. 972 (1993). Although the Tenth Circuit has not addressed limited intervention in the
police-union-intervention context, it has approved limited intervention.31 See United States v.
Curry, No. CV 10-1251 MCA/LFG, 2011 WL 13315500, at *3 (D.N.M. July 20, 2011)(stating

31

Although there is no caselaw in the Tenth Circuit regarding the liability and remedial
phases of litigation in the police union settlement agreement context, there is some caselaw in
other Courts of Appeals regarding the liability and remedial phases of litigation in the police union
settlement agreement context. In United States v. Portland, 2013 LEXIS 188465, the Honorable
Michael H. Simon, United States District Judge for the United States District of Oregon,
determined several motions to intervene, including a motion to intervene from the Portland Police
Association. See 2013 LEXIS 188465, at *10. When analyzing the Portland Police Association’s
motion to intervene, Judge Simon narrowed his focus to determining only whether the Portland
Police Association could intervene in the remedial phase of the litigation. See 2013 LEXIS
188465, at *9. To make this determination, Judge Simon looked to see “if the proposed Settlement
Agreement contains -- or even might contain -- provisions that contradict the terms of the Labor
Agreement.” 2013 LEXIS 188465, at *10. Thus, Judge Simon was concerned only with the
Settlement Agreement in making his determination about the Portland Police Association’s
intervenor status at the remedial phase of the litigation.

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that “limited intervention, however, has been approved by our Circuit”)(citing San Juan Cty. v.
United States, 503 F.3d at 1189).
The relevant excerpt of San Juan Cty. states
If the applicant is granted intervention because of an interest that may be injured by
the litigation, it does not follow that the intervention must extend to matters not
affecting that interest; and just because no party will adequately represent one
particular interest of the applicant does not mean that the applicant must be allowed
to participate in the litigation of other matters concerning which its interests are
adequately represented. Thus, the Advisory Committee Notes state, “An
intervention of right under the amended rule may be subject to appropriate
conditions or restrictions responsive among other things to the requirements of
efficient conduct of the proceedings.”
503 F.3d at 1189.

In this excerpt, the Tenth Circuit clarifies that it interprets the rule 24(a)

advisory committee notes as permitting courts to restrict intervention based on the party’s interest.
Thus, this Court has the authority to restrict the scope of the Officers Association’s intervenor
status.

If the Court was deciding this status, it would restrict the Officers Association’s

intervention status not along the phases of litigation, but to the protected interest. Thus, the Court
would allow the Officers Association to intervene only to protect its interest under the CBA. The
Officers Association, therefore, may make Objections regarding the First Proposed Settlement
Agreement before the Court finalizes it, and the Officers Association may make Objections
regarding the finalized Settlement Agreement after the Court enters it, as long as all of these
Objections arise out of conflict with the CBA.

Only the Court may enlarge the Officers

Association’s intervenor status.
D.

EVEN IF THE COURT PERMITTED THE OFFICERS ASSOCIATION TO
OBJECT, THE OBJECTION WOULD NOT BE TIMELY.

All parties agree that the deadline for parties to file Objections was January 31, 2019. See
Aug. 13 Tr. at 11:13-16 (D’Amato); id. at 13:7-13 (Ryals, Court); Albuquerque Objection

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Response at 8. See also Deadlines Order at 1-2 (“APD shall enact all use of force policies (SOPs
2-52 through 2-57) by January 31, 2019. . . . If the parties are unable to resolve a disagreement
regarding any policy or training within the above deadlines, they will file a motion with the Court
to resolve the issue within the above deadlines.”). All parties further agree that the Officers
Association filed its objection on May 28, 2019, almost four months after the deadline. See Aug.
13 Tr. at 11:13-16 (D’Amato); id. at 14:9-12 (Ryals); Albuquerque Objection Response at 8. The
Court, thus, must determine whether the Officers Association has good cause for its four-month
delay.
The Court concludes that the Officers Association does not give a satisfactory explanation
for its four-month delay. See Street v. Curry Bd. of Cty. Comm’rs, 2008 WL 2397671, at *6.
(stating that good cause is met when a party is unable to meet the deadline despite “diligent”
efforts). To justify its delay, the Officers Association cites internal disagreement and difficulty
narrowing the issue. See Aug. 13 Tr. at 11:13-16 (D’Amato). These reasons are reasons in which
a motion to extend the deadline would be appropriate. On the day of the deadline, the Officers
Association was aware that it had not made a decision yet about an Objection. The Officers
Association had an explicit procedure to follow to obtain more time: file an extension for time.
See Deadlines Order at 1-2 (“If a motion is filed with the Court to resolve any issues pertaining to
the development of a policy or training, the deadlines associated with the policy or training at issue
and any interrelated policies and/or trainings will be automatically vacated.”). The Officers
Association declined to go through this channel to get more time; the Court, thus, is reluctant
permit it to circumvent the deadline. The Court is a reasonable court, but it cannot permit parties

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to set their own deadlines without good cause.32 The Court could recast the Objections as a Motion
to reconsider, but it declines to do so, because it would be unwise to change the nature of the
Objections when the Officers Association’s right to bring its Objections is at issue.
Albuquerque argues, in the alternative, that the Officers Association does not have standing
to intervene. See Albuquerque MTI Response at 14. The Tenth Circuit has noted that rule 24(a)’s
“provisions cannot remove the Article III hurdle that anyone faces when voluntarily seeking to
enter a federal court,” and thus, “Article III’s requirements apply to all intervenors, whether they
intervene to assert a claim or defend an interest.” Safe Streets All. v. Hickenlooper, 859 F.3d 865,
912 (10th Cir. 2017)(emphasis in Safe Streets All. v. Hickenlooper)(citing Wittman v.
Personhuballah, -- U.S. --, 136 S. Ct. 1732, 1735-37 (2016); Hollingsworth v. Perry, 570 U.S. 693,
697-711 (2013), abrogating in part San Juan Cty. v. United States, 503 F.3d at 1172 (stating that a
movant seeking intervention under rule 24(a) or rule 24(b) did not need to establish Article III
standing if another party with constitutional standing on the movant’s side was still in the case )).
Two years later, the Tenth Circuit issued an opinion clarifying its statement in Safe Streets
Alliance, calling the statement “dicta.” Kane Cty., Utah v. United States, 928 F.3d at 887 n.11.
The Tenth Circuit clarified:
Safe Streets involved two States (Nebraska and Oklahoma) seeking to intervene as
plaintiffs in an action against another State, Colorado. There, we held that we were
without subject matter jurisdiction to consider the State’s intervention motion,
because 28 U.S.C. § 1251(a) gave exclusive subject-matter jurisdiction to the
United States Supreme Court to resolve disputes between two states. Id. at 877,
912. Furthermore, Safe Streets relied on Hollingsworth v. Perry, 570 U.S. 693,
708, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), for this dicta about constitutional
32

Although the good-cause standard is used generally in the scheduling order context, that
context, which also deals with parties collaborating on a deadline that the Court then enforces, is
sufficiently analogous to the present case for the Court to extend the standard to this case. See Fed.
R. Civ. P. 16(b)(4) (stating that scheduling orders “may be modified only for good cause and with
the judge’s consent”).

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standing, but Hollingsworth, in fact, applied the piggyback standing rule. There,
the intervenors had to demonstrate their own standing because they were the sole
parties to seek an appeal. Id. at 702, 708, 133 S.Ct. 2652. Here, the United States
remains a party. The dissent also cites United States v. Colorado & Eastern
Railroad Company, 882 F.3d 1264 (10th Cir. 2018). But again, that case is
inapposite because there the would-be intervenor seeking to enforce a consent
decree that it was not a party to “could not ‘piggyback’ on the standing of one of
the described parties to the Consent Decree because there was no current case or
controversy pending before the court on the part of those parties.” Id. at 1268. In
contrast, there exists a live controversy between the United States and the plaintiffs
in this case.
Kane Cty., Utah v. United States, 928 F.3d at 887 n.11 (emphases in Kane Cty., Utah v. United
States). Thus, if the Court was deciding the MTI now, the Officers Association would not be able
to “‘piggyback’” on Albuquerque’s standing, because Original Settlement Agreement MOO is a
final judgment that terminates the “live controversy between” the United States and Albuquerque.
Kane Cty., Utah v. United States, 928 F.3d at 887 n.11 (quoting United States v. Colorado &
Eastern Railroad Company, 882 F.3d at 1264. At the time of the MTI, however, the Court’s
analysis would have been whether another party with constitutional standing on the same side as
the Officers Association had standing, and Albuquerque would provide the Officers Association
with that standing. See San Juan Cty. v. United States, 503 F.3d at 1172 (stating that “as long as
there was Article III standing for the original party on the same side of the litigation as the
intervenor, the intervenor need not itself establish standing”). Moreover, the Tenth Circuit
approvingly cited other Courts of Appeals that have concluded that a party that satisfies rule 24(a)
categorically satisfies Article III standing’s requirements, although the Tenth Circuit did not go as
far as to adopt explicitly these propositions. See Kane Cty. v, Utah v. United States, 928 F.3d at
889 n. 14 (“Other courts have recognized that ‘any person who satisfies Rule 24(a) will also meet
Article III’s standing requirement.’”)(citing Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233
(D.C. Cir. 2003); Sokaogon Chippewa Cmty. v. Babbit, 214 F.3d 941, 946 (7th Cir. 2000)). The

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Officers Association’s fulfillment of rule 24(a)’s requirements would be sufficient to establish
Article III standing under Tenth Circuit law.
E.

ALTHOUGH THE COURT WILL PERMIT THE OFFICERS
ASSOCIATION TO INTERVENE TO PROTECT ITS CBA RIGHTS, THE
LAWSUIT IS NOT THE BEST PLACE FOR THE OFFICERS
ASSOCIATION TO PROTECT ITS INTERESTS.

There is precedent for district courts within the Tenth Circuit to permit a police union to
intervene when the police union argues that the consent decree violates their interests under their
CBA. See Johnson v. Lodge No. 93, 393 F.3d at 1100 (noting that the district court concluded
that the police union, which previously had asked the district court to reject the consent decree for
violating the “FOP’s rights as the ‘exclusive bargaining agent’ for [Tulsa Police Department]
officers and contravened the collective bargaining agreement between the FOP and the City,” had
sufficient interest to intervene)(alteration added and not in original). Other courts have concluded
that a police union may intervene to protect its interests under a CBA. See, e.g., Bridgeport
Guardians v. Delmonte, 227 F.R.D. 32, 35 (D. Conn. 2005)(permitting a police union’s motion for
limited intervention to dispute a special master’s recommended ruling that the police union, as the
exclusive bargaining agent for police officers, alleged would interfere with its CBA); United States
v. City of Portland, 2013 U.S. Dist. LEXIS 1884655, at *14 (concluding that the police union
should be able to intervene as a matter of right to protects its interest in its labor agreement, even
though only a few provisions of the Original Settlement Agreement conflicted with the Labor
Agreement, and there was only a possibility that “the proposed Settlement Agreement may impair
or impede the PPA’s protectable interest,” because the United States might seek injunctive relief
asking the City to implement terms that conflict with the Labor Agreement)(emphasis in United
States v. City of Portland); City of L.A., 288 F.3d at 400-01 (permitting intervention, because the

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consent decree “might contain provisions that contradict the” police union’s protected rights in its
MOU, because there was dispute over whether the consent decree conflicted with the MOU, and
because the consent decree “by its terms purports to give the district court the power, on the City’s
request, to override the Police League’s bargaining rights under California law and require the City
to implement disputed provisions of the consent decree”). The Court, however, is less suited to
resolve collective bargaining disputes than the mechanisms established specifically for these
disputes. For instance, the state court is better positioned to handle a breach-of-contract dispute,
because the dispute arises under state contract law, and because a breach-of-contract lawsuit would
be focused solely on the CBA rather than the CBA being a small part of a massive lawsuit.
Moreover, both state and municipal ordinances protect the CBA, and both systems have
established detailed procedures to handle these sorts of disputes. Moreover, the bargaining table
is the logical place for Albuquerque and the Officers Association to resolve disputes over the
collective bargaining agreement. Thus, although the Court concludes that limited intervention is
appropriate under controlling Tenth Circuit caselaw, if it were not so bound, and if the Court were
writing on a clean slate, it would hold that alternate mechanisms specifically tailored towards these
disputes are better fora to handle them and deny the Officers Association’s MTI, as other courts
have done in similar circumstances. See United States v. City of Hialeah 140 F.3d at 983 (stating
that, if Hialeah wanted to alter the CBA’s terms, “it must do so at a bargaining table”).
In State v. City of Chicago, the Seventh Circuit concluded, in part, that because the Lodge
had alternative channels to protect its rights, it did not fulfill the rule 24(a)(2) requirements. The
Court agrees with the Seventh Circuit’s reasoning that other protective mechanisms minimize the
prejudice to the proposed intervenor. See State v. City of Chicago, 912 F.3d at 987 (stating that
the Lodge had state law protections and that “when the interested party can adequately convey its

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concerns to the district court at the fairness hearing, prejudice is often minimal”). The Tenth
Circuit, however, binds the Court, and the Tenth Circuit has concluded that alternative fora are
insufficient to deny intervention. Utah Ass’n of Ctys. v. Clinton, 255 F.3d at 1254.
II.

THE COURT WILL NOT INVALIDATE THE WOULD-HAVE-KNOWN
STANDARD, BECAUSE THE COURT HAS NO POWER UNDER THE
CONSTITUTION, FEDERAL LAW, OR THE SETTLEMENT AGREEMENT TO
INVALIDATE ALBUQUERQUE’S USE OF FORCE SOP UNLESS IT VIOLATES
THE CONSTITUTION, FEDERAL LAW, OR THE SETTLEMENT
AGREEMENT’S TERMS.
As a threshold matter, the Objections were not timely, and, thus, the Officers Association

lost the opportunity for the Court to rule on its Objections. Even if the Objections were timely,
the Officers Association does not identify any source that authorizes the Court to invalidate the
use-of-force SOP beyond the Second Amended Settlement Agreement, and, thus, the Court can
invalidate the use-of-force SOP only if the use-of-force SOP violates the Constitution, federal law,
or the Second Amended Settlement Agreement. The Court concludes that the use-of-force SOP
does not violate the Constitution, federal law, or the Second Settlement Agreement, and thus the
Court does not have the authority to rule on the Officers Association’s Objections to the use-offorce SOP. Moreover, even if the Court were to rule on the Objections, it would overrule them,
because the would-have-known standard is consistent with Supreme Court caselaw, Tenth Circuit
caselaw, and the Second Amended Settlement Agreement, and because Albuquerque may
implement standards above the constitutional minimum.
A.

THE COURT HAS THE AUTHORITY TO AMEND THE USE-OF-FORCE
POLICY ONLY IF IT VIOLATES THE CONSTITUTION, FEDERAL
LAW, OR THE SETTLEMENT AGREEMENT.

The Court has jurisdiction in this case, because Judge Brack explicitly retained jurisdiction
over the Settlement Agreement in the Settlement Agreement MOO, which is the case’s Final

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Judgement. See Original Settlement Agreement MOO at 30 (Brack, J.)(ordering “that the Court
will retain jurisdiction to enforce the provisions of the Agreement, hereinafter referred to as the
Consent Decree”). See also Morris v. City of Hobart, 39 F.3d at 1110 (stating that a judge can
retain jurisdiction over a settlement agreement when dismissing a case if the judge states his or her
intention in the dismissal order or incorporates the settlement agreement into his or her dismissal
order). The Officers Association identifies the Second Amended Settlement Agreement as the
source of the Court’s authority to rule on the Objections.33 The Court concludes that the Second
Settlement Agreement authorizes it to rule on Objections only if there is a Constitutional, federal
law, or Settlement Agreement violation. See United States v. Hardage, 982 F.2d at 1496 (citing
Tiernan v. Devoe, 923 F.2d 1024, 1031 (3rd Cir. 1991); Millner v. Norfolk & W.R. Co., 643 F.2d
1005, 1009 (4th Cir.1981)(recognizing the court’s “inherent equitable power summarily to enforce
a settlement agreement when the practical effect is merely to enter a judgment by consent”). Shima
Baradaran-Robison, Kaleidoscopic Consent Decrees: School Desegregation and Prison Reform
Consent Decrees After the Prison Litigation Reform Act and Freeman-Dowell, 2003 B.Y.U. L.
Rev. 1333, 1372 (2003)(stating that a district “court has inherent power to interpret a consent
decree, but this power is limited by the scope of the parties’ agreement”)(citing United States v.
City of Northlake, 942 F.2d 1164, 1167 (7th Cir. 1991); Waste Mgmt. of Ohio, Inc. v. City of
Dayton, 132 F.3d 1142, 1146 (6th Cir. 1997)(stating that a district court has “a duty to enforce,
interpret, modify, and terminate their consent decree as required by circumstance”)). Moreover,

33

The Officers Association generally references the First Amended Settlement Agreement
and not the Second Amended Settlement Agreement. The Court speculates that the Officers
Association references the First Amended Settlement Agreement, because it is where the relevant
paragraphs were first introduced. Because all the relevant First Amended Settlement Agreement
paragraphs are incorporated into the Second Amended Settlement Agreement, the Court references
the Second Amended Settlement Agreement in this section for ease.

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in United States v. Hardage, 982 at 1496, the Tenth Circuit cited approvingly a case from the
United States Court of Appeals for the Fourth Circuit that states that the court’s authority to
“enforce a settlement agreement and to enter judgment based on that agreement without plenary
hearing” “arises not under Rule 56 of the Federal Rules of Civil Procedure but under the trial
court's inherent equitable power summarily to enforce a settlement agreement when the practical
effect is merely to enter a judgment by consent.” Millner v. Norfolk & W. R. Co., 643 F.2d at
1009. The Second Amended Settlement Agreement authorizes the Court to resolve “any objection
to new or revised policies, procedures, manuals, or directives implementing the specified
provisions” if “either party disagrees with the Monitor’s resolution of the objection.” Second
Amended Settlement Agreement at ¶ 148. Thus, the Second Amended Settlement Agreement
authorizes the Court to rule on the Objection. See Promotional Policy MOO at 4 (“Paragraph 148
of the CASA confers authority on the Court to resolve disagreements between the parties regarding
new or revised policies, including the one at issue here”)(footnote omitted).
Moreover, the Second Amended Settlement Agreement further limits the scope of these
Objections so that the Objection is only to a policy that “‘does not incorporate the requirements of
this Agreement or is inconsistent with this Agreement or the law.’” Albuquerque’s Response to
Objections at 4 (quoting Second Amended Settlement Agreement at ¶ 147). Thus, Second
Amended Settlement Agreement’s language to rule only on Objections arising out of policies that
either do not incorporate the Second Amended Settlement Agreement’s requirements or are
inconsistent with the Second Amended Settlement Agreement or with the law limits the Court.
Thus, the Court does not have the authority to amend the SOP based on the Officer Association’s
objection to the SOP’s “vagueness,” unless there is a Second Amended Settlement Agreement
provision or law that requires a use-of-force standard not to be vague. Objection at 5. The Officers

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Association does not provide a Second Amended Settlement Agreement provision or any law that
has this requirement, and, thus, the Court does not have the authority to hear the Objection on this
basis.
Nonetheless, if the Court were to decide the vagueness Objection, it would overrule the
Objection. Although the Officers Association argues that the use-of-force SOP is “vague,” the
Court concludes that the use-of-force SOP’s generality allows the Court to consider the
circumstances at the scene when determining reasonableness in accordance with the
objective-reasonableness. Guidelines of the appropriate force for specific circumstances -- for
example, pinning down a person to the ground is not excessive force in x, y, and z circumstances
but is unacceptable in a, b, c circumstances -- would limit the Court to a single circumstance instead
of allowing the Court to look at the totality of the circumstances when making this evaluation. See
Graham v. Connor, 490 U.S. at 396. An officer may mistakenly, but reasonably, make a splitsecond miscalculation and use more force than the situation warrants. A list of circumstancespecific guidelines would not allow the Court to adjust its calculation for a reasonable mistake,
and thus, would not permit the Court to review the totality of the circumstances. Moreover, brightline excessive-force rules would remove the officers’ professional judgment and even could result
in dangerous situations in which an officer substitutes rigid thinking for common sense. The
Supreme Court in Graham v. Connor clarified that it wanted courts to be able to consider “rapidly
evolving” circumstances, which necessitates flexibility in thinking instead of a rigid adherence to
a bright-line rule. The Court, thus, concludes that the objectively reasonableness standard’s
generality is consistent with Graham v. Connor.

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B.

THE USE-OF-FORCE SOP DOES NOT VIOLATE THE CONSTITUTION.

The Court concludes that the use-of-force SOP comports with the Fourth Amendment to
the United States Constitution’s reasonableness determination in use-of-force contexts. The
Supreme Court has directed courts to use an “objective[-]reasonableness” standard, in which courts
look at the “perspective of a reasonable officer on the scene” “without regard to their underlying
intent or motivation,” when determining excessive-force claims against enforcement officers in
the context of an arrest, investigatory stop, or seizure. Graham v. Connor, 490 U.S. at 386 (stating
that the objective-reasonableness standard under the Fourth Amendment applies to these claims).
Despite the Officers Association’s protests otherwise, the Court concludes that the use-of-force
SOP accords with the objective-reasonableness standard.
The Court concludes that the SOP § 2-57-2’s definition of reasonable force -- “facts that a
reasonable officer on the scene would have known at the time the officer used force” -- is consistent
with Tenth Circuit caselaw interpreting the Fourth Amendment. The Court acknowledges that the
would-have-known language is taken directly from a Tenth Circuit case -- Weigel v. Broad. The
United States and Albuquerque encourage the Court to recognize that, because the would-haveknown standard’s language is identical to language in Weigel v. Broad, the would-have-known
standard is necessarily consistent with Tenth Circuit caselaw. But the Court is disinclined to
ascribe this meaning -- that perhaps the Tenth Circuit did not intend -- to the language. Thus,
although the Tenth Circuit uses the language twice in the Weigel v. Broad opinion, the Court
assesses whether the substance is the same in that case and in other Tenth Circuit caselaw.
In Weigel v. Broad, the Tenth Circuit begins its use-of-force analysis by citing Graham v.
Connor for the principle that the use-of-force analysis is (i) “‘an objective one: the question is
whether the officer’ actions are objectively reasonable in light of the facts and circumstances

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confronting them, without regard to underlying intent and motivation,’” Weigel v. Broad, 544
F.3d at 1151 (quoting Graham v. Connor, 490 U.S. at 388); and (ii) “a totality of the circumstances
approach,” Weigel v. Broad, 544 F.3d at 1151. The Tenth Circuit further notes that the
use-of-force inquiry must be “‘from the perspective of a reasonable officer on the scene, rather
than the 20/20 vision of hindsight’” and that the “perspective includes an ‘examination of the
information possessed by the [officers].’” Weigel v. Broad, 544 F.3d at 1151 (first quoting
Graham v. Connor, 490 U.S. at 396; second quoting Anderson v. Creighton, 483 U.S. 635, 641
(1987))(alteration in Weigel v. Broad).
The use-of-force SOP’s would-have-known standard comports with all these principles. It
is an objective question, because it looks at what a reasonable officer would have done, rather than
the officer’s underlying intent or motivation.

Because the would-have-known standard

encompasses everything a reasonable officer would have known at the time of the use of force, the
standard looks at the totality of the circumstance. Further, the would-have-known standard uses
as its perspective a reasonable officer’s perspective, including the relevant information that a
reasonable officer on the scene would have known. A reasonable officer on the scene would
witness everything the officer being investigated witnessed, and thus, would have at least as much
information as the officer being investigated. Accordingly, the would-have-known standard
encompasses the information that the officer being investigated possesses. Thus, in terms of
principles, the would-have-known standard comports with Weigel v. Broad.
Next, the Tenth Circuit applies the analysis.

When making its excessive-force

determination, the Tenth Circuit makes its determination based on two key facts: (i) “for three
minutes the troopers subjected Mr. Weigel to force that they knew was unnecessary to restrain
him”; and (ii) “a reasonable officer would have known [that force] presented a significant danger

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of asphyxiation and death.” Weigel v. Broad, 544 F.3d at 1153 (emphases added). The Tenth
Circuit infers the first key fact from the “articulable evidence,” Sept. 4 Tr. at 67:19 (Ginger),
which considers what the officers knew, see Weigel v. Broad, 544 F.3d at 1153. In comparison,
SOP 2-57 requires that the investigating officer “listens to what the involved officer has to say,”
Sept. 4 Tr. at 62:4-5 (Van Meter), and the would-have-known standard does not exclude that
information.
Further, the Tenth Circuit infers the second key fact from the police department’s training,
which a reasonable officer from that police department on the scene would have had. See Weigel
v. Broad, 544 F.3d at 1152 (“WLEA training materials made clear that the pressure applied to Mr.
Weigel’s upper torso would suffice to cause his suffocation.”). As discussed, supra, a reasonable
officer has average training, so he or she can be expected to have undergone the average amount
of training that an officer at that police department has undergone. Accordingly, the Tenth Circuit
presumed that a reasonable officer would have familiarity with the police department’s training
materials. See 544 F.3d at 1152. In comparison, the would-have-known standard also extends
beyond what the officer at the scene knew to considering what a reasonable officer, who received
at least comparable training to the involved officer,34 to include “the training [that APD] provided
the officers and the directives that they have give them. And it’s appropriate to characterize that
as [facts that] the officers would have known.” Sept. 4 Tr. at 40:15-18 (Van Meter). The Tenth
Circuit in Weigel v. Broad notably did not scrutinize the individual officers on the scene’s
underlying motivations or intent. Whether the police officers intended to asphyxiate the plaintiff

34

The Court notes that all officers have some basic training before they are permitted to
respond to crime scenes that a reasonable officer responding to the scene is assumed to have, but
the Court recognizes that some officers may have more advanced training that goes beyond the
training that a reasonable officer could be expected to have.

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was irrelevant to the determination. Similarly, the would-have-known standard, and SOP § 2-57
in general, do not mention that the investigating officer should look into the involved officers’
motivations or intent. Thus, because the Tenth Circuit’s analysis has the same scope as the wouldhave-known standard, and does not consider any factors outside what would be appropriate to
consider under SOP § 2-57, the Court concludes that the would-have-known standard is consistent
with Tenth Circuit caselaw.
The Officers Association further argues that, because “would have known” is a conditional
perfect verb, it “necessarily relies on ‘what if’ explorations,” which would violate Graham v.
Connor. Officers Association Objections at 8. The Court interprets this argument to mean that
the Officers Association believes that “would have known” indicates that a use-of-force
investigator will consider “hypothetical circumstances” when making his or her determination,
rather than the totality of the actual circumstances. Officers Association Objections at 8. The
Court disagrees with this interpretation. The “would have known” language is linked to a
hypothetical reasonable officer: use-of-force investigations should be based on “‘facts that a
reasonable officer on the scene would have known at the time the officer used force.’” Officers
Association Objections at 8 (quoting SOP § 2-57-2). Thus, the tense of “would have known” is
necessary, because the use-of-force investigators are examining the totality of circumstances from
the viewpoint of a hypothetical person and not examining from the viewpoint of hypothetical
circumstances. Altering the tense would render the sentence nonsensical: “facts that a reasonable
officer on the scene knew at the time the officer used force.” The “reasonable officer” did not
know, however, anything at the time the officer being investigated used force -- the reasonable
officer does not exist in reality and exists only as a magnifying glass through which the
investigating officers examine the scene. Thus, the “would have known” language facilitates the

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“reasonable officer” legal fiction; it does not encourage investigating officers to conjure up
hypothetical circumstances. Thus, the would-have-known standard does not invite hypothetical
circumstances in contravention of Graham v. Connor.
Moreover, the “reasonable officer” standard is meant to make the assessment objective
rather than subjective. Marsha L. Levick & Elizabeth-Ann Tierney, The United States Supreme
Court Adopts a Reasonable Juvenile Standard in J.D.B. v. North Carolina for Purposes of the
Miranda Custody Analysis: Can A More Reasoned Justice System for Juveniles Be Far Behind?,
47 Harv. C.R.-C.L. L. Rev. 501, 504 (2012)(“Reasonable Juvenile Standard”)(“[The reasonableperson standard] is an objective standard against which triers of fact measure individuals’ conduct
or blameworthiness.”)(citing People v. Cross, 127 P.3d 71, 78 (Colo. 2006); People v. Goetz, 497
N.E.2d 41, 50-51 (N.Y. 1986); Jankee v. Clark Cty., 612 N.W. 2d 297, 310 (Wis. 2000)). The
reasonable person in the criminal law context “‘possesses the intelligence, educational
background, level of prudence, and temperament of an average person [and] lacks unusual physical
handicaps.’” Reasonable Juvenile Standard at 504 (quoting Joshua Dressler, Understanding
Criminal Law § 10.04 [B][3][b] (1987), and citing Arthur Ripstein, Equality, Responsibility, and
the Law at 192 (Gerald Postema ed., 1999)). Thus, a reasonable officer has the intelligence,
educational background, level of prudence, and temperament of an average law enforcement
officer. This standard is objective, because it examines what level of force the reasonable officer
would use in that situation in the context of the totality of circumstances, instead of examining
why the officer being investigated used the level force he or she used. Whether the officer
personally believes his or her actions were reasonable would be subjective in contravention of
Graham v. Connor. 490 U.S. at 386. Reviewing instead what a reasonable officer would have
done in that situation removes any inquiry into underlying intent or motivation, stripping away the

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necessity of a Monday morning investigatory officer trying to piece together what the individual
officer was thinking. For example, an individual officer may want to break the arm of a suspect
who already had surrendered after initially resisting, but instead the officer is able only to pin the
suspect’s arm. An investigating officer looking at the situation from the reasonable officer’s
viewpoint would focus only on whether pinning the suspect’s arm was an excessive use of force.
In contrast, an investigating officer looking at the situation subjectively would determine whether
the officer was intending to pin the suspect’s arm or to break the suspect’s arm; the investigating
officer would have to look at the individual officer’s underlying intent and motivations to make a
determination. See Graham v. Connor, 490 U.S. at 397 (“An officer's evil intentions will not make
a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's
good intentions make an objectively unreasonable use of force constitutional.”)(citing Scott v.
United States, 436 U.S. 128, 138 (1978)(further internal citation omitted)). Thus, because looking
at the situation from a reasonable officer’s perspective focuses only on concrete, tangible facts,
basing findings on what a reasonable officer would have known is a more objective inquiry than
basing findings on what the on-scene officer knew.
The Officers Association provides a hypothetical:
So if an officer is responding to a call: A man with a knife; reads the
communication dispatch on his computer in the car; and he’s running lights and
sirens to the scene, and uses force on a man who is believed to have a knife in his
possession. And then finds out later that the CAD misrepresented the actual fact;
that man had the knife in the previous incident. If he could articulate a reasonable
use of force based on what he perceived, what he actually knew, and then during
the investigatory stage he finds out that, or an investigator finds out that, that the
dispatch contained incorrect information, and if he had known the correct
information, he may have taken different steps, that opens the door for Monday
morning quarterbacking or second-guessing an officer based on what he believed
was true. But if he would have known it was false, maybe he wouldn’t have taken
that action, and therefore, subject him to discipline.

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Sept. 4 Tr. 32:3-21 (D’Amato). The Court agrees with the Officers Association that punishing an
officer for a fact that he or she could not have known at the time and that became known only after
the fact would be a violation of Graham v. Connor’s prohibition against second-guessing and
hindsight. The Court concludes, however, that the would-have-known test does not punish an
officer in this situation. A reasonable officer at the scene would not have known information that
he or she did not have. A reasonable officer at the scene would have received the same dispatch
that the officer being investigated would have received. A reasonable officer at the scene would
not have known information discovered after the scene; the use-of-force SOP makes sure to cabin
the information a reasonable officer would have known to the scene itself by stating that the
relevant information considered is the information available “at the time the officer used force.”
An investigatory officer, therefore, would not be able to include facts learned after the time that
the involved officer used force when considering what a reasonable officer on the scene would
have known, unless a reasonable officer should have known these facts. Thus, if the officer being
investigated acts on false information that was not corrected until after the use of force, the
investigation would focus only on whether the officer used force in accordance with how a
reasonable officer acting on the false information would use force. See Sept. 4 Tr. at 63:4-9 (Van
Meter)(“[I]n the circumstance . . . [where the] officer is getting the wrong information on the way
to the scene, it is actually the view of the City that that wrong information is what a reasonable
officer on the scene would have known.”).
Further, although the Officers Association correctly notes that the would-have-known
standard could result in investigating officers making a determination based on facts that the
officer being investigated did not know at the scene, this determination does not violate Graham
v. Connor by being speculative. See Officers Association Objections at 9. The Court concludes,

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however, that this “imput[ation]” of facts is not speculative, insofar as any factual determination
can be not speculative. Objections at 9. Determining what a reasonable officer in that position on
the scene would have known is less difficult, because that determination relies only on the
situation’s facts. For instance, if an officer states that he or she did not see a person’s hands in
the air, the investigating officer using the would-have-known standard can determine based on the
relative positions of the alleged victim and of the officer being investigated, the amount of light,
and other circumstances whether a reasonable officer would have known that the person’s hands
were in the air. Thus, the standard that examines what a reasonable officer would have known is
not speculative and is more objective.
Moreover, this standard is consistent with Graham v. Connor’s statement that the standard
must account for the split-second decisions officers often must make in the line of duty. See 490
U.S. at 396-97 (“The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments -- in circumstances that are tense,
uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular
situation.”). The would-have-known standard asks the investigating officer to look at the facts that
a reasonable officer would have known at the time of force, which includes changes in
circumstances. A reasonable officer of reasonable intelligence, education, and training would
consider evolving circumstances when making a split-second judgment -- law enforcement
officers’ job is to assess and respond to a situation. A reasonable officer may make mistakes in
his or her response, but the standard does not demand perfection -- after all, the officer is meant to
be reasonable, and not exceptional. Because a reasonable officer would be aware of changes in
circumstances at an active scene, the would-have-known standard accounts for officers making
split-second judgments in rapidly changing circumstances.

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In the context of training officers, the Officers Association states that, if it is “reasonable
to conclude that a reasonable officer ‘would have known’ what is revealed on his or her ‘On Body
Recording Device’” or whether a reasonable officer “would have known the offender suffered
from mental illness,” then the reasonable officer perspective improperly uses hindsight to
determine excessive use of force. The Officers Association, however, poses these questions as if
the answer is binary. To make these determinations, the investigating officer will have to look at
the totality of circumstances, and Graham v. Connor requires an examination of the totality of the
circumstances. Thus the answer is not binary, but instead is, as it so frustratingly often is in the
legal realm, it depends. And it depends on the totality of the circumstances. Moreover, in contrast
to the Officers Association’s contention, hindsight need not play a role in answering these
questions. For instance, the determination whether a reasonable officer would have known that
the offender suffered from mental illness is not based on whether it surfaces after the situation that
the offender suffered from mental illness. Instead, the determination is based on whether a
reasonable officer at the crime scene would have known from the circumstances that a person
suffered mental illness. Thus, the determination is not based on hindsight, which is using
knowledge acquired after the incident, but the reasonable-officer-on-the-scene perspective, which
is using knowledge available during the incident. Further, the would-have-known standard does
not ask investigatory officers whether less forceful alternatives were available, which would
contravene Graham v. Connor’s directive. Instead, the would-have-known standard asks them to
account for whether the force was reasonable in the circumstances. Thus, hindsight does not play
a role in the would-have-known standard and the would-have known standard does not violate
constitutional law.
C.

THE USE-OF-FORCE SOP DOES NOT VIOLATE FEDERAL LAW.

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The Officers Association makes only one federal law argument in its Objections Reply.
See Objections Reply at 8-10. It argues that the federal law requires the factual situation must be
“clearly established” in the 42 U.S.C. § 1983 context, and that thus the would-have-known
standard must have “clearly established” language. Objections Reply at 9 (“[T]here remains a lack
of

‘clearly established’ limiting language in SOP 2-57-2.”).

As the Officers Association

acknowledges, see Objection Reply at 10, the “clearly established” language is part of the
qualified-immunity analysis, Scott v. Harris, 550 U.S. 372, 377 (2007).

Thus, although a

qualified-immunity analysis includes a clearly established prong, a use-of-force analysis does not
include a clearly established prong. Nonetheless, the Officers Association spends several pages
discussing the qualified-immunity analysis, arguing that, because “the discussion of Weigel and
other cases cited by the City are qualified immunity evaluations” that were “decided on a motion
for summary judgment, where the court takes the facts ‘in the light most favorable to the party
asserting the injury,’” the cases are inapplicable to the use-of-force investigatory standard.
Objection Reply at 13 (quoting Scott v. Harris, 550 U.S. at 377)(emphasis in original). See
Objection Reply at 10-13. The Officers Association misstates the law. It correctly asserts that a
qualified-immunity analysis requires courts to view the facts in the “‘light most favorable to the
party asserting the injury.’” Scott v. Harris, 550 U.S. at 377 (quoting Saucier v. Katz, 533 U.S. at
201). A summary-judgment motion, however, requires courts to construe the facts in the light
most favorable to the non-moving party. See Scott v. Harris, 550 U.S. at 377 (citing United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curium); Saucier v.Katz, 533 at 201)). “In qualified
immunity cases, this usually means adopting . . . the plaintiff’s version of the facts.” Scott v.
Harris, 550 U.S. at 377. Thus, a summary judgment use-of-force-constitutional-violation analysis
uses the same analysis as other motions. Thus, the United States and Albuquerque were not wrong

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to cite caselaw on summary-judgment motions, because that caselaw involves the use-of-force
standard. See, e.g., Albuquerque Objection Response at 14 (citing Weigel v. Broad, 544 F.3d at
1153).
Further, “clearly established” is limited to the qualified-immunity context, which, as
discussed supra, does not apply to this situation, in which an investigating officer is making a useof-force constitutional violation determination. The qualified-immunity analysis is a two-step
analysis with two independent components: (i) a constitutional-violation prong; and a (ii) clearly
established prong. See Scott v. Harris, 550 U.S. at 377. The Supreme Court treats them separately
to the extent that it permits the courts to determine one prong without ever reaching the other. See
Pearson v. Callahan, 555 U.S. at 236. Although the clearly established prong is particular to the
qualified immunity-analysis, the constitutional-violation prong is not particular to the qualifiedimmunity analysis. A constitutional violation is a constitutional violation, and constitutionalviolation tests do not morph into different tests in the qualified-immunity context. See Pearson v.
Callahan, 555 U.S. at 236 (stating that the constitutional-violation prong “is intended to further the
development of constitutional precedent”). Thus, Albuquerque does not need to add any limiting
language to its excessive-force determination, even though a clearly established prong limits a
constitutional violation in the qualified-immunity context, because the use-of-force SOP
determines whether an officer used excessive force, and not whether an officer should receive
qualified immunity.
The Officers Association argues that, because the qualified-immunity constitutional
violation analysis has the same “objective reasonableness” test as an excessive-force constitutional
violation analysis, the “clearly established language” must cabin the excessive-force objective
reasonableness test as it cabins the qualified immunity objective reasonableness. Objections at 9

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(citing Buck v. City of Albuquerque, 549 F.3d at 1269). As support, the Officers Association
excerpts Buck v. City of Albuquerque: “[A]n officer’s violation of the Graham reasonableness test
is a violation of clearly established law if there are ‘no substantial grounds for a reasonable officer
to conclude that there is legitimate justification for acting as she did.’” Objections at 9 (quoting
Buck v. City of Albuquerque, 548 F.3d at 1291)(quoting Holland ex rel. Overdorff v. Harrington,
268 F.3d 1179, 1197 (10th Cir. 2001)))(emphasis in Officers Association Objections only). An
excessive-force constitutional violation that meets the Graham v. Connor factors must then meet
by qualified immunity’s clearly established law prong. The Court, therefore, concludes that the
objectively reasonable would-have-known standard -- in the constitutional violation context –
translates in SOPs without an additional limit from the qualified immunity context. As the Court
has said, the clearly established prong is a misguided doctrine in the qualified immunity test; the
federal courts should not move it into other areas of law. Indeed, now-Justice Gorsuch has said
excessive force legal issues should be denied in areas other than § 1983 and Bivens actions. See
Kerns v. Bader, 663 F.3d 1173, 1186 (10th Cir. 2011).
Moreover, the clearly established language is about the law. The clearly established prong
asks whether caselaw has clearly established the violated constitutional right, such that an officer
would have sufficient notice that his action violated.

The Court sees problems with this

incorporating the clearly established prong and test into the SOP language. First, for facts to be
obviously verified, there would need to be little doubt as to their existence – i.e. the parties,
including the officer being investigated, all would have to agree on the facts, or there would have
to be recordings of the facts. Second, the clearly established language is lifted from a different
context and would cause confusion for officers when trying to distinguish clearly established in
the legal, qualified immunity sense, from clearly established when determining whether a

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constitutional violation occurred at all. The Court concludes that requiring Albuquerque to add
clearly established language would result in a confusing standard with a burden of proof that could
hinder investigations. Thus, Albuquerque has not violated federal law by omitting “clearly
established” language.
D.

THE USE-OF-FORCE SOP DOES NOT VIOLATE THE SETTLEMENT
AGREEMENT, BECAUSE THE UNITED STATES AND ALBUQUERQUE
ADOPTED THE SOP IN A MANNER CONSISTENT WITH THE
SETTLEMENT AGREEMENT.

The Officers Association alleges that the use-of-force SOP violates three Second Amended
Settlement Agreement provisions: one provision that states that officers must use “‘force in
accordance with the Constitution and federal laws,’” Objections Reply at 5 (quoting Second
Amended Settlement Agreement ¶ 13, at 14), and two provisions that state that the use-of-force
SOP must “compl[y] with applicable law and comport[] with best practices,” Objections Reply at
5 (quoting Second Amended Settlement Agreement ¶ 15, at 15; id. ¶ 41, at 17).35 The full sentence
at issue in ¶ 13, at 14 states that the “APD shall revise and implement use of force policies, training,
and accountability systems to ensure that force is used in accordance with the Constitution and
laws of the United States.” Second Amended Settlement Agreement ¶ 13, at 14. As discussed
above, the would-have-known policy is not in conflict with the Constitution or the laws of the
United States. Thus, Second Amended Settlement Agreement ¶ 13, is not in conflict with the

35

The Court notes that the United States and Albuquerque all but ignore this argument in
their Responses, see United States Objections Response and Albuquerque Objections Response,
and that the Officers Association does not mention this argument in it Reply. Nonetheless, the
Court will resolve this argument.

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would-have-known standard. Further, the Court concludes that the Officers Association has not
demonstrated that the use-of-force SOP is inconsistent with best practices.36
The Officers Association next argues that sentences within the Second Amended
Settlement Agreement ¶¶ 15 and 41, at 15, 17, require use-of-force investigations to be consistent
with the law. See Objections Reply at 5. The sentence at issue in ¶ 15, at 15, states that the “APD
shall develop and implement an overarching agency-wide use of force policy that complies with
applicable law and comports with best practices.” Second Amended Settlement Agreement ¶ 15,
at 15. The sentence at issue in ¶ 41, at 17 states that “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.”

Second Amended Settlement Agreement ¶ 41, at 17.

The Officers

Association states in its Objections Reply, however, that its “Objection is directed to the
investigation of an officer using force, not the actual use of force. The objection does not affect
the policy on the actual use of force by an officer.” Objections Reply at 2 (citing SOP § 2-52).
The Second Amended Settlement Agreement ¶ 15, at 15, however, deals exclusively with the useof-force policy, which it defines as:
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 force is appropriate. The use of force policy will
incorporate the use of force principles and factors articulated above and shall
specify that the use of unreasonable force will subject officers to discipline, possible
criminal prosecution, and/or civil liability.

36

The Officers Association does not define best practices beyond noting that the Graham
v. Connor standard is a best practice. See Objections at 10.

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Second Amended Settlement Agreement ¶ 15, at 15. It does not mention anything about the useof-force investigation. Compare Second Amended Settlement Agreement ¶ 15, at 15 (“APD shall
develop and implement an overarching agency-wide use of force policy.”), with Second Amended
Settlement Agreement ¶ 46, at 17 (“All force reviews and investigations shall comply with
applicable law and comport with best practices.”)(emphases added). Further, the excerpted
sentence of ¶ 41, at 17, is about the “use of force reporting policy and Use of Form Report Form,”
and not the use-of-force investigation policy. See Second Amended Settlement Agreement ¶ 41,
at 17. Compare Second Amended Settlement Agreement ¶ 41, at 17 (“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.”) with Second Amended Settlement Agreement ¶
46, at 17 (“All force reviews and investigations shall comply with applicable law and comport
with best practices.”). Thus, Second Settlement Agreement ¶¶ 15 and 41, at 15, 17, are not relevant
to the Officers Association’s Objection.
Nonetheless, the Second Amended Settlement Agreement notes that use-of-force
investigations must comply with law and best practices, see Second Amended Settlement
Agreement ¶ 46, at 17, and thus the Court uses the Officers Association’s arguments to determine
whether this provision conflicts with the use-of-force SOP. The Officers Association argues that
the would-have-known standard is incompatible with best practices, because the standard is
impossible to teach to law enforcement officers and because there are “no lesson plans available.”
Objections at 3. The Court’s research indicates that there are systems in which the objective
reasonableness test is taught using threat assessment and response training. See, e.g., John Klein
& Ken Wallentine, A Rational Foundation for Use of Force Policy, Training and Assessment at
10, AELE (2014). Moreover, the type of training aligned with the Officers Association’s argument

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is known as “use-of-force continuum training,” which uses as its model a continuum that “includes
a diagram depicting a scale of force options to be used in response to a subject’s actions.” Michael
L. Ciminelli, Legal Implication of Use-of-Force Continuums in Police Training, Rochester Police
Dep’t (2014)(“Use-of-Force Continuums Review”). In his review, Michael L. Ciminelli, the Chief
of Police of Rochester, New York, acknowledges criticisms that “continuums fail to accurately
reflect the correct legal standard regarding police use of force: objective reasonableness under the
Fourth Amendment to the Constitution.” Use-of-Force Continuums Review at 2. Although
Ciminelli does not advocate abandoning continuums categorically, he cautions that use-of-force
continuums “may not accurately reflect the ‘totality of circumstances’ that should be examined to
apply the objective reasonableness standard.” Use-of-Force Continuums Review at 2. The Court
notes that it is not advocating one type of training over another training, but it is merely noting
that, not only is the use-of-force policy permissible, it can be and has been taught to law
enforcement officers, and thus the Officers Association has not demonstrated how the policy is
inconsistent with best practices.
Further, the Court concludes that the Officers Association has not shown that this standard
is more difficult to implement evenly across different offices than the Officers Association’s
suggestion of a subjective test. The Officers Association protests that implementing this standard
across offices will be difficult for its investigating officers, who have “differing needs in correcting
deficiencies.” Objections at 6. A trained and competent investigating officer should be able to
make an excessive-force determination based on the facts of the situation, without knowing the
officer or facts about the officer that deviates from the prototypical reasonable officer, such as his
or her intelligence, temperament, or motivations behind the use-of-force.

Determining

deficiencies in investigatory reports is possible with this model -- because the investigating officer

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should make his or her determination from a factual, objective standpoint officers from different
branches should be able to make a similar determination with the same set of facts.

An

investigating officer’s deficient performance should be obvious if he or she consistently made a
determination different from the determination of his or her peers for in similar situations. In
contrast, the Officers Association’s proposal of a different test for each office would lead to
disparities in investigatory outcomes. Thus, the Officers Association has not shown how an
objective standard applied in all offices contravenes best practices. Therefore, the Court would
overrule this Objection.
IT IS ORDERED that the Objections in the Intervenor’s Notice of Objection to Use of
Force Policy (§ 2-57-2, Standing Operating Procedure), filed May 28, 2019 (Doc. 447), are
overruled.

________________________________
UNITED STATES DISTRICT JUDGE

Counsel:
John C. Anderson
United States Attorney
Elizabeth M. Martinez
Michael H. Hoses
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
--and--

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Luis E. Saucedo
Paul Killebrew
Corey M. Sanders
United States Department of Justice
Attorneys for the United States
Jerry A. Walz
Walz and Associates
Albuquerque, New Mexico
--and-Lindsay Fay Van Meter
Robyn Lee Rose
Samantha M. Hults
Esteban Angel Aguilar, Jr.
City of Albuquerque
Albuquerque, New Mexico
Attorneys for the City of Albuquerque
Frederick M. Mowrer
John James D’Amato, Jr.
Albuquerque, New Mexico
Attorneys for Albuquerque Police Officers Association
Maria Martinez Sanchez
Steven Robert Allen
American Civil Liberties Union of New Mexico
Albuquerque, New Mexico
Attorneys for Amicus Curiae American Civil Liberties Union
Peter Cubra
Law Office of Peter Cubra
Albuquerque, New Mexico
Attorney for Amicus Curiae McClendon Subclass
Andres Valdez
Albuquerque, New Mexico
Pro se Amicus Curiae

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Thomas Dent
Albuquerque, New Mexico
Pro se Amicus Curiae

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