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Portland Copwatch Testimony on
US Dept of Justice/City of Portland Settlement (Section 4)

Summary: Make the CRC's standard for evaluating misconduct findings less deferential, give the volunteer members time to hold appeal hearings, and set their quorum at 6 of 11 members, not 5.

The Citizen Review Committee hears appeals of complaints about police misconduct which have been investigated by Internal Affairs. They are able to recommend that the Bureau change a finding if they feel it is "not supported by the evidence."*-12 Unfortunately, the IPR ordinance and the DOJ Agreement (paragraph 61) define "supported by the evidence" using the "reasonable person" standard.*-13 Numerous times since their inception, the CRC has been frustrated by the deferential standard of review which requires them to decide whether a reasonable police commander could have decided what finding should be attached to an allegation, rather than weighing the evidence on its own merits. Review board expert Eileen Luna Firebaugh, in her 2008 report on the IPR, noted that the "reasonable person" standard is too complicated and that CRC should be able to make their recommendations to the Bureau based on a preponderance of the evidence.*-14

The City argues that changing the standard will turn the CRC from an "appeals body" into a "fact finding body." However, we have pointed out repeatedly that this is faulty logic. (A) The "lower court" in this case is either the IA investigation being read by an officer's supervisor or a Police Review Board made up of a majority of police employees, in neither case does the complainant get to speak directly to the fact finder; and (B) Even when CRC makes its recommendation to change a finding, first the Bureau can use a "conference committee" to try persuading them to change their minds,*-15 and if that is unsuccessful, the case goes to City Council for final disposition.*-16 Thus, Council is the fact finder in this analogy, not CRC.

We urge that the definition of the standard of review is either changed to a preponderance of evidence standard or at the very least, that paragraph 61 defining "supported by the evidence" in the Agreement be deleted.

The Agreement also creates an unrealistic timeline for the all-volunteer group to hold hearings--21 days (paragraph 121). Even though City Code only requires CRC to hold quarterly meetings,*-17 they have held monthly meetings since their inception. If, for example, a complainant were to file an appeal the day after a meeting, the CRC would have to assign its members to prepare a presentation, assign an Appeals Process Advisor to aid the appellant, read the case file, and hold the hearing all before the next regular meeting. Currently, the ordinance calls for a Case File Review (CFR) for the CRC to determine whether they have enough information in order to hold the appeal hearing,*-18 a valuable step that was just added in 2011. The CRC has been able to ask clarifying questions to make their appeal hearings much more streamlined and focused than before the CFR was created. With monthly meetings, CRC's timeline for holding most hearings after the appeal is filed is at or under 63 days. On December 18, Commissioner Steve Novick stated at City Council that the Council agrees the 21 day timeline is too short, but it was the DOJ which is refusing to budge on this point.*-19

Additionally, the Agreement states that the CRC's 21 day timeline must be part of the overall 180 day timeline to resolve complaints. Since the intake and investigation are all done by paid City employees, it seems unreasonable to include the volunteer community members in this accelerated timeline. We question whether anyone in the general community or the mental health community has called for CRC hearings to happen within three weeks. In fact, most appellants leave CRC nowadays feeling like the process was fair even if the outcome is not what they wanted. Therefore, we believe the CRC's timeline should be extended from 21 to 63 days, and that the appeal process no longer be included in the aspirational 180 day timeline.

Finally, the Agreement calls for the CRC to be expanded to 11 members (paragraph 134), which is something we have supported for years. And while Council has already made this change, they also adopted a controversial part of the Agreement, which sets the quorum for CRC to just 5 members. This could allow for a smaller faction of the Committee to meet and make decisions without the knowledge or consent of the majority of the group, creating unnecessary tension and confusion. In testimony to Council, we suggested that the City make the quorum 6 members, standard for a body of 11, and if their intention was to allow for CRC to break into smaller panels to help speed things up, allow CRC to delegate their authority by a 2/3 vote to such smaller panels (Exhibit D-PCW). The fact that this was incorporated into City Code before the court could determine if it was "fair, adequate and reasonable" is indicative of the City's practice of making changes without considering the consequences. We urge the court to direct changes be made to paragraph 134 and to the City Code to fix this problem before the predictable problems emerge.

Footnotes:
*-12- City Code 3.21.160 [A][1]
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*-13- City Code 3.21.020 [S]
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*-14- Performance Review of the Independent Police Review Division, Eileen Luna Firebaugh, January 2008, page 119.
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*-15- City Code 3.21.160 [A][1][c][2]
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*-16- City City Code 3.21.160 [A][2]
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*-17- City Code 3.21.090 [A][1]
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*-18- City Code 3.21.150
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*-19- Portland Mercury Blog, December 18, 2013
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DOJ / City of Portland Settlment Agreement (November 14, 2012)

Next Section: 5. Accountability-- Police Review Board

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Portland Copwatch
PO Box 42456
Portland, OR 97242
(503) 236-3065/ Incident Report Line (503) 321-5120
e-mail: copwatch@portlandcopwatch.org

Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.

Posted January 31, 2014

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