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Cops Show Up, Review Committee Hears 2 Appeals While City Plots to Make Hearings Private
Turmoil Mostly Subsides as Ground Rules Set, Work Groups Begin Meeting, New CRC Members Vetted

What most people think of as a "police review board" in Portland, the Citizen Review Committee (CRC), has had a busy year trying to speed up its appeal hearings on misconduct complaints. Despite meeting twice a month, various factors not under their control have led to some appeals not being resolved for about six months each. The City's response has been to propose that CRC meetings be held behind closed doors, something that does not address the timeliness issue and is opposed by Portland Copwatch and many others in the community. Meanwhile, the police did not have to be escorted under subpoena to the May meeting after acceptable ground rules were devised in late April-- rules which eliminated a short-lived effort to push videographers away from the Committee. CRC heard two appeals, both of which are awaiting final outcomes, and rebuked the Bureau's effort to change their minds on the case of a grabbed video camera (PPR #68). Because of the frantic meeting schedule, CRC's Work Groups had been on hold from November to late June, when some resumed. Down to just 9 of its authorized 11-member size (with the May resignation of Bridget Donegan), new members will be named to the Committee on August 31.

For many years, Portland Copwatch (PCW) has suggested the Police Review Board (PRB), an internal Bureau body which privately reviews cases with proposed "Sustained" findings and force/deadly force cases, be more integrated with the CRC process. The goal is to draw the PRB out from the shadows and allow the public, media, and those harmed by police (/their survivors) the ability to attend hearings. Discussions by a five-month "Focus Group" looking at ways to improve the oversight system (PPR #68) led to a proposal by Auditor Mary Hull Caballero to move CRC hearings under the purview of the PRB, thus cutting out the only transparent part of the discipline process. Public hearings have been part of Portland's oversight since it was first voted into place in 1982. PCW pointed out that the goal of reorganizing-- to meet demands of the US Department of Justice (DOJ) Settlement Agreement saying investigations must be complete in 180 days-- will not be met by cutting out the public. On August 1, City Council held a "town hall" at which two dozen people testifying all opposed the move to secret hearings, including current and former CRC members. Two days later, the CRC finalized a scathing letter demanding the Council delay their proposed vote and keep appeal hearings open to the public. The original vote was pushed back a week, but we're still hoping more people will contact Council, cooler heads prevail, and the 3:45 PM Wednesday September 14 Council hearing will be further postponed.

Previous times the oversight system has been overhauled-- in 2000 and 2010-- the City appointed stakeholder groups including a representative from PCW to hold public meetings. What appears to be driving the new proposed changes? The minutes of the Focus Group imply the police "union" will file a grievance if a finding is made "due to the number of negative public comments which in turn, influence the Chief's decision. This particular part of the meeting will need to be changed regardless if CRC and PRB are combined."

Meanwhile, the Community Oversight Advisory Board (COAB) Accountability Subcommittee came up with a contrasting proposal that gives more transparency to the PRB process and integrates their work with CRC's in a more public way. That proposal was expected to go before COAB in August, but due to lack of quorum they may not meet (article).

After the Bureau refused to show up on April 20, the CRC invoked their power to compel the head of Internal Affairs and the officers' commander to come to their hearing (PPR #68). An April 26 meeting hashing out new guidelines led the Bureau to agree to attend voluntarily. On May 4, CRC finally heard the case of Matt Klug, a man with mental health issues who was zapped by a Taser 5 times after he allegedly smacked a car that came too close to his bicycle in September 2014 (#2015- X-0002). CRC had asked Internal Affairs (IA) to conduct thorough interviews with witnesses other than a security guard whose word IA used as gospel (PPR #67).

The concerns of those witnesses who thought the Taser was unnecessary were dismissed again. Then-Assistant Chief Bob Day thanked CRC for leading the Bureau to realize Officer Bradley Nutting (#45920) shocked Mr. Klug with 50,000 volts for an additional second after the unbent fishhook barbs were embedded in his skin, but wrote off the extra zap as "accidental" based on the officer's word. Given the officers' claim they felt they were engaged in a struggle with an aggressive person-- instead of recognizing Klug throwing the contents of his pockets onto the street was probably a sign of mental illness-- it was more likely retaliatory. Three uses of the Taser (in "drive stun" mode) are blamed on Nutting's mishandling the Taser's trigger.

Examining the Bureau's Directive on Tasers (#1051.00), CRC found Nutting in policy. Klug objected that they were using a version of the Directive from before the time of the incident, but CRC refused to listen. Both versions instruct police to come up with a new plan if the Taser doesn't work after the first two uses. Since Nutting used the Taser 5 times (three "drive stuns," a probe launch/zap and the after-struggle zap), and "arced" the device once in Klug's face as a "warning," evidence leans toward finding the officer violated policy. However, CRC voted 7-1 to affirm the original finding of "Exonerated with a debriefing," with Kiosha Ford wanting to sustain the complaint. They also voted 8-0 to affirm Sgt. Tony Passadore (#33482) did not use excessive force against Klug, but asked to add a debrief urging de-escalation. The Bureau accepted that recommendation two weeks later.

After the meeting, PCW sent documentation to the "Independent" Police Review Division (IPR), which houses CRC, showing Klug had the Taser policy from January 2014, not the 2013 version offered by Lt. Mike Frome, the officers' commander-- and wrongly affirmed by the City Attorney. As a result, the finding about Nutting is being reconsidered, with a follow up hearing set for September 7.

After CRC's vote in March asking the Bureau to find Officer Scott Groshong (#27445) out of policy for putting his hand up to (and maybe grabbing) Robert West's video camera, Chief O'Dea rebuffed the recommended finding (case #2016-X-0004). Since O'Dea was under investigation (article), Acting Chief Donna Henderson came to CRC's June 6 "Conference Hearing" to argue that Groshong's behavior didn't rise to the level of a conduct violation, and the finding should be the original "Not Sustained" (insufficient evidence), only with a debriefing.

The CRC members weren't buying it. They said Groshong's behavior was not professional-- whether or not he grabbed West's camera. Although low-level misconduct can be processed as a non-disciplinary complaint ("Service Improvement Opportunity"), because this case was fully investigated that was no longer an option. CRC voted 6-0 to send the case to City Council for final disposition. Such a hearing has not happened since 2003 (PPR #30). Days later, Henderson wrote CRC agreeing to "Sustain" the complaint. A similar reversal happened in 2010 after CRC voted to find Officer Ron Frashour (of killing Aaron Campbell fame) out of policy for using a Taser on... a person with a video camera (PPR #51). Then-Chief Rosie Sizer cited not wanting to drag the incident before City Council as a reason for accepting CRC's finding.

After being rescheduled three times, defense attorney Sara Foroshani's appeal regarding rude and rough cops (#2016-X-0001) was heard on June 21. Foroshani said she saw a woman in a parking lot dragged out of her car by the hair, advised that person of her rights, was told by Officers "A" and "B" she must not be a good lawyer, and was pushed and sworn at by Officer "A" (PPR #68). Foroshani acted out the scene for the Committee. Commander Sara Westbrook explained why she found the force allegations within policy ("Exonerated"), found the other allegations "Not Sustained" and recommended "debriefings" on the officers' rudeness.

Westbrook said regarding the profanity that Officer A couldn't remember, Officer B didn't hear it, and the Appellant wasn't sure, thus the "Not Sustained" finding. However, a non-police witness said he heard the cop use the "F" word. Nonetheless, CRC affirmed the finding 5-0.

The Commander categorized the put-downs of Foroshani's lawyering skills as a form of "de- escalation." Foroshani's Appeals Process Advisor (APA) TJ Browning wondered how that would work. Westbrook said the officer wasn't "trying to be unprofessional." Westbrook added they didn't believe Foroshani really was an attorney. During public input, Foroshani's former boss noted her advice not to allow a search of the car was valid, since it was parked, so the arrest wasn't being made during a traffic stop. Because both cops admitted they told Foroshani she was a bad attorney, CRC voted 5-0 for both discourtesy findings to be changed to "Sustained."

In examining whether Officer "A" pushed the lawyer, the Bureau insists he used a minimal "control hold," cupping her arm lightly at the elbow. Because it was her word against the officer's, CRC voted 4-1 to change the finding to "Not Sustained with a debriefing." Chair Kristin Malone felt the Commander's "Exonerated" decision was reasonable.

CRC had sent this case back for more investigation, asking IPR to talk to the woman in the car. They were unable to interview her. Thus, the allegations about her being pulled out by the hair came down to Foroshani's word against the officers', even though one said they asked her to come out with her hands on her head and the other said she "was removed" from the car. CRC voted 5-0 to affirm the "Exonerated" finding despite the conflicting evidence.

In January, CRC decided a Commander and Sergeant violated policy when ordering protestor Theresa Holloway be arrested by police at a November 2014 post-Ferguson verdict demonstration in Portland (#2015-X-0004). In February, Chief O'Dea argued against the finding, offering to change the allegations and conduct more investigation (PPR #68). Though the officers "kettled" (boxed in) everyone at the protest-- including people on the sidewalk who were presumably not violating any laws-- the supplemental investigation also exonerated the commanders on the question of detaining Holloway.

When the case came back to CRC on July 6 for a supplemental hearing, Holloway expressed concern that the IPR's case file summary had been edited since she received her copy. Director Constantin Severe admitted he changed it that morning, and it was "foolish" to do so. CRC delayed the appeal until August, then voted 6-2 to find the commander out of policy for ordering everyone in the area to be detained (with Malone and Jim Young dissenting).

In June, CRC's Recurring Audit Work Group met for the first time in over a year. Their last effort, to audit complaints dismissed by IPR to be sure the intake agency was acting properly, was never published once Work Group members allowed their terms to expire. The new Group, headed by Mae Wilson Pfeil, plans to take a fresh look at dismissals, then perhaps move on to investigated cases.

In early July, the Outreach Work Group met, networking with a member of the Training Advisory Council (article). Only one CRC member came to the August meeting.

No word on the Policy and Procedure Work Group, which presumably will (1) follow up on a proposal to spread out the duties of the CRC Chair and Vice Chair, originally billed as an "Executive Committee" until Malone realized that meant holding more public meetings and withdrew her proposal in July (after briefly renaming it the "Chair's Advisory"); and (2) explain why CRC dropped its proposal to cut out public input before every vote (#5.07). It was probably because community members and former CRC members wrote in to object.

At their August meeting, CRC agreed to let former CRC member David Denecke work with Young to brush up the Deadly Force Work Group recommendations from May 2015. They also voted to reconstitute the Crowd Control Work Group to look at "kettling."

--The late April meeting on ground rules included a presentation by Flying Focus Video Collective (FFVC) objecting to the restrictions put on the location of video cameras at meetings. Flying Focus made a public records request and received emails indicating former CRC member Angelo Turner and PPA President Daryl Turner (no relation) were complaining about the location of the FFVC camera. CRC agreed to allow taping where the appellant's face can be seen. Along with relaxing other rules, CRC's proposed changes were approved by then-Chief Larry O'Dea.* More details, including the CRC's emails, at flyingfocus.org/crc2016.html.

--In June, City Attorney Tracy Reeve attended the CRC meeting to describe what her office could and could not do for the group, apparently ending discussion about getting independent counsel to make up for their errors (advising CRC they could not exclude people, telling them they could not add debriefings to findings and telling them they had the right Directive though they did not). Reeve said she could give procedural advice on conduct of meetings, but not offer more substantive advice on the fly. This means if CRC has an important legal question, it will add to how long the hearings take.

--The panel interviewing prospective new members included Chair Malone, Vice Chair Ramos, two former CRC members and Ping Khaw of Asian Pacific American Chamber of Commerce, who, as far as we know, has never been to a single CRC meeting.

--On July 12, former Auditor Gary Blackmer wrote an op-ed in the Oregonian in the context of the national focus on police shootings, dragging out his old trope that IPR (which he designed) was responsible for lowering the number of Portland police shootings including "zero in one year." PCW member Dan Handelman refuted that with a July 19 letter pointing out there has never been a year with zero shootings, the shootings rate is at 4.5 incidents a year, and while that is lower than the past it's likely because of the over-use of Tasers.

--Although they were encouraged by former member Eric Terrell and Pfiel to take secondary, "symbolic" votes about the Tasering case to see how they would have voted under a "preponderance of the evidence" standard, acting Chair Julie Ramos declared it was too late in the evening and moved on with the agenda.

*-When the Bureau refused to show up on April 20, O'Dea was in Harney County on his ill-fated hunting trip (article). Acting Chief Henderson likely didn't approve the original ground rules. After all, the rules O'Dea agreed to were in favor of more community transparency.

September, 2016
Also in PPR #69

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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