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Citizen Review Committee Holds 3 Hearings,
Finds Excessive Force Against Shooter Cop
Conducts Community Forum Despite "Pushback,"
Advocates for Stronger Independent Review

Case 2009-x-0005: "I didn't believe that Mr. Waterhouse's failure to put down the video camera was an indication of aggressive physical resistance"

At a special meeting on February 17, CRC heard the case of Frank Waterhouse, who says police improperly arrested him and used excessive force including a "beanbag" gun, Taser, and a rough takedown, among other allegations (PPR #49). Waterhouse won a civil jury award of $55,000 in September. In November, the CRC sent this case back for further investigation, including the transcripts of the civil trial.

The full hearing lasted 4.5 hours and drew considerable media attention: The officer who fired the Taser was Ronald Frashour, who killed Aaron Campbell in January (see Aaron Campbell article in this issue). The hearing was also remarkable because Waterhouse had an advocate, law student Logan Perkins of the National Lawyers Guild (NLG), who presented most of the case. She contacted Waterhouse through his attorney Ben Haile, who also spoke at the hearing.

The CRC faced challenges parsing the 13 allegations, since some involved multiple officers. For example, on the claim that officers falsely arrested Waterhouse, CRC voted 5-1 to recommend the Bureau change its "Exonerated with a debriefing" finding to "Unproven with a debriefing" only for Officer Jennifer Musser (#40710). Musser's declaring Waterhouse was the suspected jaywalker police had chased into an auto yard led to the arrest. Waterhouse was acquitted of wrongdoing in criminal court.

The second allegation, regarding excessive force, was also confusing. At the internal police "Performance Review Board," it was broken out to examine the use of the "beanbag" by Officer Joshua Bocchino (#41047) and the failure to warn Waterhouse before using the Taser and beanbag--all found out of policy by Chief Sizer. The unnecessarily rough arrest was found "Unproven with a debriefing" for all four officers. The CRC upheld that finding in a 6-0 vote.

Officers can use force if a suspect shows "physical resistance" (Taser) or "aggressive physical resistance" (beanbag)--not simply if they fail to obey a command. The beanbag and Taser were fired simultaneously, indicating Frashour failed to communicate with fellow officers, as in the Campbell shooting. Waterhouse fell to the ground, barely missing a pile of car parts that lay below the embankment he was on. The officers roughed up Waterhouse to get him into handcuffs, and Perkins noted Waterhouse could not comply with officers' commands to take his hands out from under his body because his face was being forced into the dirt.

The CRC decided in a 6-0 vote that Officer Frashour's use of the Taser was excessive ("Sustained"). They may have agreed with Perkins' points that: (a) one explicit reason not to use a Taser is when a person could be injured in a fall and (b) the Taser directive asks officers to consider severity of the crime (jaywalking), threat posed (eight officers against one suspect), and suspect's history (which they didn't know).

In addition, Chief Sizer testified in civil court that Waterhouse was not going to use his camcorder as a weapon, as alleged by the officers. She stated: "I didn't believe that Mr. Waterhouse's failure to put down the video camera was an indication of aggressive physical resistance." She also said she believed the situation could have been resolved if Frashour had given the verbal warning--in other words, the use of the Taser was not necessary.

On allegation #3, that the officers failed to give proper medical attention by telling the EMTs Waterhouse was "fine," CRC affirmed the finding of"Exonerated with a debriefing" 5-1, with member Jeff Bissonnette dissenting. On allegation #11, that the officer who shot the "beanbag" also told Waterhouse to "shut up--don't talk s**t to the observer [an off-duty cop]," the Bureau proposed an "Unfounded" finding. Bissonnette proposed and CRC voted 6-0 to add a debriefing to that finding.

On allegation #6, that Officer Musser played loud rap music in the back of the patrol car, the finding was "Unproven with a debriefing." Assistant Chief (A/C) Martinek reported that playing loud music is a common tactic used by officers who do not want to listen to "belligerent" arrestees. In the past, the Bureau has denied this happened in two cases that have come before the CRC: Freedom Child, who was taken into custody over a missing bicycle light (PPR #37) and Iacuzzi, who apparently "failed the attitude test" (PPR #48). A/C Martinek claimed Waterhouse was lying because Musser said she would not listen to rap music. CRC affirmed the "Unproven" finding 6-0.

Allegation #7, that the officers violated Waterhouse's Fifth Amendment rights by questioning him after he asked for a lawyer, was dismissed by the IPR Director as "Other judicial remedy." When the CRC asked to send this allegation back for a finding, the Director stated her position was final. CRC should be able to overturn the Director's decision, especially on an issue that can easily be investigated.

On allegation #10, that the officers did not loosen Waterhouse's cuffs after repeated requests, including leaving him in a holding cell for five hours in cuffs, the Bureau's finding was "Unproven with a debriefing." In another astounding revelation, A/C Martinek said that officers use the tightness of handcuffs as a negotiation tactic with suspects. The CRC voted to affirm the finding 6- 0.

The CRC mentioned once again that "Unproven" could mean (1) "Unfounded"--the facts do not support the officers did what was alleged, or (2) "Insufficient Evidence"--there was not enough evidence to prove or disprove the allegation. They urged the Bureau to restore the findings to these pre-2007 terms.

After the hearing, Sgt. Scott Westerman of the Portland Police Association (PPA) stated that a sign in the jail asserts a policy for suspects to remain in cuffs while in the cell. Westerman could have sat at the table to represent the officers, but chose not to do so.

Perkins conceded that there was not enough evidence to change the "Unproven" findings on five other allegations; the CRC voted 4-2 to affirm those findings. Members Hank Miggins and Rochelle Silver felt at least #8, regarding rudeness and bragging by Officers Musser, Frashour, Bocchino, and "Officer D," needed more discussion.

The Chief declined to accept the recommended finding on the Taser, forcing a "conference meeting" between A/C Martinek and the CRC on April 13. CRC, voting unanimously (5-0), refused to back down on the proposed finding. Unless the Bureau voluntarily agrees to sustain the finding, the case will be heard before City Council, something that has only happened once since the IPR was created (PPR #30).

Perkins' participation vastly improved the quality of the hearing, where an Appeals Process Advisor (APA) was assigned but not allowed to speak. After the hearing, CRC approved (8-0) giving the NLG contact information to appellants for six months as an experiment.

We support Perkins' suggestion that a policy allowing use of loud music to create discomfort for suspects needs to change; it can only escalate already tense situations, and could prevent officers from being alerted to a medical emergency.

Case 2009-x-0006: "Remember who was drunk and belligerent."

In case 2009-x-0006, Jason Krohn, the son of former Portland Sgt. Kelly Krohn, say police injured him while taking him into custody, failed to file accurate police reports, and Officer Michael Close (#38094) slammed his legs in a car door to gain compliance. Jason had been drinking downtown one night in 2006, and police were called to the scene because of an argument among Jason, his friends, and others in the "entertainment district." At some point, Jason mentioned his father was with the police, and ultimately the officers released him to Sgt. Krohn's custody rather than take him to Detox or book him.

Sgt. Krohn, who retired in 2007, acted as Jason's advocate. There was an uncomfortable personal animosity back and forth among Officer Ralph Elwood (#26797); Sgt. Roger Axthelm (#30020); Sgt. Westerman, who agreed to speak on behalf of Officer Close (who also broke Randall Cooley's arm in 2006 [PPR #48]); and Sgt. Krohn.

Sgt. Krohn alleged the police reports were inaccurate because a witness who identified himself as a police officer from Florida turned out to not to be an officer at all. However, CRC voted to uphold the "Exonerated" finding 6-1. CRC member Rochelle Silver felt that the reports should have mentioned the bleeding abrasions on Jason's face and the bruises on his legs.

Regarding the rough take-down, Westerman and the other officers acted out the scene with one officer's knee on "Jason's" back, explaining that any abrasion on his face was from being on pavement and unavoidable. The IAD investigator discounted the witness who saw Jason bleeding, because he said it was his forehead, not his cheek. Although Sgt. Krohn indicated the most egregious force was used after Close arrived, only Elwood and Axthelm were listed in the allegation. The CRC upheld the "Exonerated" finding 7-0.

During a long discussion it was revealed that in 2003, the Bureau trained officers to close car doors on suspects' legs to get them to comply with being transported in a police cruiser. Police argued that Jason could have gotten the bruises on his shins by kicking at the door after he was in the car. Nearly four hours into the meeting, CRC voted 5-2 to uphold the Bureau's finding of "Unproven," in this case meaning "Insufficient Evidence," whether Close slammed the car door on Jason's legs.

Earlier, in the Police Association's January Rap Sheet, current State Representative/former PPA President Jeff Barker wrote about the case, denouncing retired officers who "have jumped in to kick the morale of those left working right in the teeth." Barker refers to Sgt. Krohn's "endless whine" in the December 5 Oregonian, and makes fun of Jason's complaint about his facial injury: "the cement was not smooth and comfortable." Probably to warn them off of injuring him, Jason told the officers he was an athlete, to which Barker replies: "Oh, my god! An athlete! Since when does an athlete have to follow the law or listen to the police?" Barker advises Jason to thank the officer who let him go, not make the police look bad. "Remember who was drunk and belligerent."

Case 2009-x-0004: No wrongdoing for alleged flashlight strike

In January, the CRC held a supplemental hearing in Case 2009-x-0004, in which Michael Grundmeyer says Officer Robert Jackson hit his son in the face with a flashlight and failed to file a use of force report (PPR #49). The allegations surround a contact in September, 2007 between Jackson and 38-year-old Shane Grundmeyer, shot and killed by Washington County Deputies five months after the incident.

The CRC sent the case back to IAD in October to determine whether the officer was in uniform in a marked patrol car and where the flashlight was located at the time Shane says he was hit (PPR #49).

According to the police records, Officer Jackson was in a marked patrol car and in uniform. Apparently, he would not have had a Cadet riding in an unmarked car. Commander Crebs showed the CRC a small six-inch-long metal flashlight, claiming it was the size of flashlight Jackson had with him. CRC members, the appellant, and the APA all acceded to a claim that the dome light was on in Shane's car. The only people who could testify otherwise are Grundmeyer's witnesses, who appearently backed down, and Shane, who is dead.

IPR staff made calls to get the witnesses' testimony, since they were not willing to talk to police. However, the only information IPR reportedly received was a voice message of "I didn't see nothing."

Due to lack of new evidence, CRC upheld 7-0 the initial finding of "Unproven" as to whether the officer struck Shane. CRC then voted 6-1 to affirm the "Exonerated" finding about the use of force form. Bissonnette dissented because if the force possibly did happen, that finding should have been "Unproven" as well.

A/C Martinek scribbled a note on the Bureau's response that CRC found insulting: "I concur with Commander Crebs' finding and would have expected IAD follow-up to be enough. That would have closed this in November" (Oregonian, March 22).

After Back and Forth Internally and Externally, CRC Holds Accountability/Chasse Forum

As reported in PPR #49, CRC planned a public forum about the 2006 death of James Chasse in police custody (see Shootings article in this issue) and the Bureau's investigation into officer conduct. CRC voted twice to proceed: 7-1 on December 15, and 7-1 on February 17. Dissenting were Rochelle Silver (December) and Hank Miggins (February).

CRC had arranged for the Portland State University Veterans group to host them, but the City Attorney had CRC hold off publishing a news release while they checked for compliance with public meetings laws. We suspect the City Attorney was motivated by an interest in preventing public discussion of the Chasse case, another clear example of why CRC and IPR need to be advised by an attorney who does not also represent the Police Bureau. Other concerns thrown at CRC were fears about security (thinly veiled bias against people with mental illness) and the possibility that the volunteer facilitators might want to get paid (they didn't).

At least 50 people showed up to the March 14 event, talking about the Aaron Campbell shooting as well as Chasse and other concerns. There was considerable media attention, none reflecting negatively on CRC, and yet no IPR staff, nor the Auditor came. While this was a step forward from the showdown in 2003 in which the Auditor and IPR Director prevented CRC from hearing an appeal about the José Mejía Poot case (PPR #29), CRC was still told that they they would receive little or no staff support. CRC took a bold stand to hold the forum despite this adversity.

Reports Out, Drafted; More Personnel Changes

--With the only change being the addition of a few paragraphs describing meetings with Chief Sizer, the CRC's final Bias Based Policing report was released in March. The interim report had been released on the same day as Sizer's Racial Profiling Plan in February, 2009 (PPR #47). Three of the group's core members left CRC when their terms ended, leaving Miggins the only remaining member of the Work Group to speak to its recommendations; CRC conducted a voice vote to accept the report and did not discuss its content on March 10.

--The Structure Review Work Group released its draft report in March, listing dozens of recommendations to improve IPR and CRC. Some ideas, such as changing CRC's standard of review to "preponderance of the evidence" from the "reasonable person" standard, require changes in City Code. Others can be done in policies and protocols. CRC used the 2008 Luna Firebaugh report (PPR #44) as a basis, but was unable to approve the report before changes to IPR were enacted on March 31 (see IPR Reforms article in this issue).

--The PARC Work Group completed a draft report analyzing the 2005 and 2006 recommendations on shootings and deaths in custody cases. Some of the proposals touch on changes made by Council-- such as how to run the Use of Force/Performance Review Boards and IPR looking at shooting cases contemporaneously instead of farming them out years after the fact. A vote on the report is expected in May.

--Myra Simon, appointed to the CRC in November, moved out of state in December, replaced by attorney Lindsey Detweiler on March 31. We've noted repeatedly that CRC needs to have two more members, as an average of three members per year have left or resigned since 2002.

May, 2010
Also in PPR #50

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