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Review Committee Requires More Investigation; Permanent Power in DOJ Report?
Force Upheld In Unawful Arrest Case; Community Policing, Crowd Control Forums Held; Taser Report Released

After a months-long standoff trying to get more investigation into an excessive force case, the Citizen Review Committee (CRC) finally had a breakthrough in October, when the Mayor stepped in to order Internal Affairs (IA) to do the work. Depending on the interpretation of the US Department of Justice (DOJ) Agreement with the City (see p. 1), it is possible the CRC will have the legal abililty to direct IA to conduct such investigations in the future. However, since the DOJ report continues to tie CRC's hands with the "reasonable person" standard when they evaluate whether officers commit misconduct, it is likely that they will continue to find officers within policy in cases such as the one heard in November regarding a woman dragged from her house as part of an unlawful arrest. Meanwhile, the CRC co-sponsored public forums on crowd control and "Community Policing" that had gratifying results, and finally released their report on Tasers and other "less lethal" weapons.

As reported in PPR #57, the CRC asked twice for IA or the Independent Police Review Division (IPR) to conduct more investigation in the case of Craig Maynard, a man whose elbow was dislocated by an officer who chased him for lack of a bicycle reflector (case #2012-x-0003), and was refused both times. In early October, the IPR's quarterly report revealed that Mayor Adams (the Police Commissioner) had "directed Internal Affairs to conduct further investigation." While a victory for CRC and civilian oversight in general, getting the Police Commissioner to intervene is not a long-term, sustainable solution to such standoffs. The DOJ's September Letter of Findings called for "a mandate to address investigative inadequacies identified by CRC." This turned into what may be a true solution in the DOJ Agreement: a directive that IPR or IA "must" investigate when the CRC asks for more information, or write a letter explaining why they could not complete the investigation in 10 days. Unfortunately, the Agreement also says CRC can only make one such request (meaning, if they request it at the initial "Case File Review," they won't also be able to ask for more investigation at the actual hearing) and doesn't clearly say whether IPR/IA must finish the investigation or just end the process by writing their letter.

Furthermore, in the Maynard case, the CRC's request to ask a supervisor on scene about his conversation with two witnesses regarding the force used may be the only follow-up being done. The question of whether Maynard said "you broke my arm on purpose" and Officer "A" told Maynard "yeah, I did" may remain unprovable because it is unclear whether IA asked Officer "B" if he heard that comment.

After holding two Case File Reviews in September and October while unsuccessfully seeking more witnesses, CRC heard appeal #2012-x-0004 in November, about Ms. Slade a woman who alleged excessive force was used on her when officers entered her house without a warrant. Significantly, the Bureau sustained Slade's allegation that Officer Davis Kile (#40572) violated policy when he reached through the threshold of the doorway to grab Slade, since he at best had probable cause via a Hillsboro cop, but no warrant for her. Slade was supposedly suspected of violating a restraining order by making contact-- but not physical contact-- with her own mother, in custody of a guardian. According to Slade's testimony and her lawyer, Ben Haile, the order had been revised to allow contact at the time the incident occurred, but neither the Hillsboro nor Portland Police looked deep enough to obtain that information.

Slade says that after Officer Kile grabbed her arm through the doorway (an act which could itself be called excessive force since the officer had no right to enter), Kile took her from the home forcefully and arrested her in her nightgown. Slade described being dragged out of the house by Kile, who scared her so much she defecated on herself. The cops then refused to let her clean herself up. IPR Director Mary-Beth Baptista, whose background is in Domestic Violence prosecution, said it was common for such things to happen and stated that the male cops could not let the woman go into the bathroom with dangerous razors and such. (The question of calling in a female cop wasn't raised.) Deputy City Attorney David Woboril spent a long time saying that just because the entry into the home was illegal/against policy, doesn't mean that the use of force to conduct the arrest while in the home was wrong. Even if that illogical statement is true, Woboril noted a provision in the Use of Force policy prohibiting officers precipitating the use of force (ie, stepping in front of a car and saying they "had to shoot at it because it was coming at them"). Also, since IPR prompted the Bureau to do a roll call video about entries into homes without warrants after a rash of such activity in 2006, the officers in this case should have known their entry was illegal, and thus should not have used force once they entered the home.

There was a lot of deliberation on how much injury Slade sustained as a result of the incident, which led to her being incarcerated for 18 days. Because it was not clearly documented whether the mobility issues she claims to have in her arm are the result of the officers' roughness, CRC members seemed to be having trouble deciding if the force was excessive. Internal Affairs Lt. Larry Graham, who previously butted heads with the CRC in his role as a supervisor (PPR #56), asked "Do you want to put this on the same level as, say, Rodney King?" Portland Copwatch pointed out that if none is appropriate, any force used can be excessive force. To his credit, Graham's supervisor Captain Dave Famous approached CRC to apologize for Graham's comment, saying it didn't represent the Bureau or the Professional Standards Division. (He didn't, however, apologize for Graham telling the CRC not to be "nitpicky" about officers' actions.)

The IPR Director's participation in the hearing cemented long-standing concerns that the institutional structure of IPR leaves them too close to the Bureau. Because she is fully dependent on IA to conduct officer interviews, a relationship has developed leading Baptista, as one of the people in the chain of review who can affirm or controvert a proposed finding, to be frequently supportive of the Bureau's point of view. She certainly was in this case, which would shock the conscience of most Portlanders. Baptista stated that Slade pulled the officer into the house, that the injuries she is claiming are not out of the ordinary "when you resist arrest," and that the force probably wasn't excessive because there were no blows to head, and no less lethal weapons used.

As the CRC discussed whether to uphold or challenge the Bureau's findings, they were repeatedly reminded that their standard of review demands they decide whether the Commander who found the use of force "Exonerated with a debriefing" (within policy, but needing some discussion with the officer) was reasonable when coming to that conclusion, even if they disagree with the decision. At first, two members voted to "Sustain" the force complaint (Rochelle Silver and David Denecke), while 5 others dissented. CRC member Steve Yarosh loudly exclaimed that if the use of force were out of policy, then every time officers handcuffed someone after entry into a home without a warrant that could be considered excessive force as well. (We actually don't see the problem with that idea.)

Director Baptista spoke out while CRC was in the middle of voting to repeat that probable cause made the arrest lawful, even though the entry was a violation. This analysis blurs the line between legal issues, which are a court's concern, and violations of policy, which are the CRC's concern.

Again relying on the restrictive standard of review, the CRC then voted 5-2 to uphold the "Exonerated with debriefing" finding. Member Jeff Bissonnette noted that the policy calls on police to judge whether the force was appropriate in the totality of the circumstances, and thus called separating the unlawful entry from the force "ridiculous." However, he voted with the majority because of CRC's limited standard. If only the police had roughed up Slade outside her home instead of following her in, the CRC's decision would have been easier.

Luckily, and unusually, the Appellant said she felt satisfied that she had been heard through the process, even though she didn't agree with the outcome. It's likely that a good part of that satisfaction was because she had former CRC member Sherrelle Owens as an Appeals Process Advisor (APA), and under recently revised rules (PPR #56) Owens was able to read Slade's statement on her behalf.

At the December meeting, CRC held a Case File Review on a complaint stemming from the clearing out of Shemanski Park during the Occupy Portland protests in December 2011 (PPR #55). Penelope Welsh, 67, who lives downtown, was walking near the park when she says Officer Stephen Endicott (#26710) told her to move along, pushing her and ignoring her pleas that due to her disabilities she was walking as fast as she could. While leaning against a wall to avoid being pushed over, Welsh told Endicott she was planning to file a complaint. When she began walking away, he pushed her again.

Internal Affairs explained at length the difference between a "control hold" (where a person's fingers might be bent backward to gain compliance) and an "escort hold" which is what they claim Endicott used to "guide" Welsh from the scene.

There was also considerable discussion about why the force complaint, which was "Exonerated" (found in policy), was not accompanied by a courtesy complaint, since it was clear the officer had not acted professionally. Lt. Graham said "We probably should have added that allegation." However, IPR staff made it clear they believe CRC does not have the authority to ask for allegations to be added, despite the ordinance being silent on the matter. In fact, though former IPR Director Leslie Stevens prohibited CRC from requesting such an allegation change in May 2007, she allowed one the next month (PPR #42). Welsh's appeal hearing was set for January 9.

As part of the CRC work group on crowd control issues, members held a public forum at the Miracles Club in NE Portland on August 28. About 20 people testified, mostly folks from Occupy Portland who had seen or experienced police misconduct at various events. One person who lives in the building spoke eloquently about the problems between the police and the African American community, noting that if Occupy Portland had been a group of black protestors, they wouldn't have lasted a day downtown, much less six weeks.

On November 13, the CRC's outreach work group teamed up with the monthly "Race Talks" program at the Kennedy School for a forum on "Community Policing." While we had hoped for a forum focusing on the CRC's area of interest, police accountability, the outcome was still reflective of what Portland Copwatch (PCW) has been saying for years. Just about every small group report- back (including tables that had current and former police officers at them) reflected that we don't have true community policing, in part because most officers don't live in Portland, in part because they don't get out of their patrol cars to find out what the concerns of the community are, and most of all the Bureau needs a culture change beyond just diversifying its membership.

On November 8, just prior to the second of three City Council hearings on the DOJ Agreement, CRC vice chair Michael Bigham was finally able to present the Committee's Taser/Less Lethal Force report, delayed since February (PPR #57). While PCW supports most of their recommendations, the Chief's proposed revised policy on Tasers and the DOJ Agreement both fall short, particularly around the issue of medical care (article), and the Council's acceptance of the CRC's report was mostly ceremonial.

Bigham and member Rochelle Silver pleaded with Council to change the part of the DOJ Agreement requiring the entire CRC appeals process to be completed within 21 days. They pointed out that they are all volunteers, that an APA needs ample time to meet with the complainant to prepare for the hearing, that the current process needs at least 60 days to incorporate a Case File Review and a hearing, and that it is unlikely an attorney or a law student volunteering to help could prepare a case in such a short time.

The Mayor told CRC members just before the Council hearing that maybe they would have to recruit different kinds of people if current members don't have the time to meet the new deadline. This is unconscionable for a Mayor that supports equity and diversity. At the hearing, he pointed out that the intention of the Agreement's adding two more civilians to the CRC, giving them 11 members, but keeping the quorum at 5, was to make things move faster. Had the Mayor, his staff, or any representative of the DOJ bothered to attend a single CRC meeting/hearing in the 15 months the investigation was going on, they would know that time frame was unreasonable. (The DOJ's Adrian Brown finally attended in December.) Chair Jamie Troy--nominated to the Committee by Mayor Adams-- announced at the November CRC meeting that if the 21 day rule is enforced, he will resign. In December, after having met with members of the DOJ, Troy seemed to feel that if documents are put on line for CRC review, the timeline is more realistic. Unfortunately, that vision doesn't take into account concerns of the Appellants in such an accelerated timeline.

--CRC member Andre Pruitt resigned in October, and Vice Chair Bigham will be resigning in February 2013, leaving CRC with just 7 people as the DOJ Agreement orders them to expand to 11. IPR is not recruiting new members until the terms of the Agreement are formally adopted.

--IPR "Assistant Program Manager" Rachel Mortimer went on a ride-along with the police Gang Enforcement Team-- riding with officers DeFrain and Burley, who were involved in the shooting death of Keaton Otis.

--The October IPR Director's report notes "African American community members of North Portland report fatigue in trying to influence Bureau policies and procedures that reflect community policing."

--Director Baptista failed to alert the CRC that she, Auditor Griffin-Valade and Assistant Director Severe were going to the National Association for Civilian Oversight of Law Enforcement conference in San Diego, so no CRC members attended the October conference, even at their own expense. In past years, the City has paid for at least one CRC member to attend.

January, 2013
Also in PPR #58

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.

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