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Police Oversight Panel Makes Mixed Recommendations, Gets New Members
Staff Supports Shutting Out Community in Practice, Law

While the City is tied up fixing the mess they've made of improving our oversight system (p. 5), the Citizen Review Committee (CRC) has continued hearing appeals of misconduct cases. They sent two cases back asking for a "Sustained" findings--in one, the Chief agreed, the other may go to City Council. They reversed their recommendation to sustain in a third case. A force-related recommendation four years in the making was approved, one CRC member resigned, and three new members were sworn in. Meanwhile, the staff of the "Independent" Police Review Division continues to be stingy with information, going so far as to shut the community out of previously public trainings for CRC. Prior to hearing a new case on November 2, CRC had only heard eight cases in 20 meetings over of 17 months.

Case 2016-x-0001: Officers Found Out of Policy For Telling Woman She's "Not a Very Good Lawyer"

Public defender Sara Foroshani was told by two officers she "must not be a very good lawyer" and says one of the officers pushed her (PPRs #68&69). CRC recommended Sustained findings for the officers' rudeness, and changing the force allegation from "Exonerated (in policy)" to "Not Sustained (insufficient evidence) with a debriefing." On October 26, Chief Mike Marshman, attending his first CRC hearing as Chief, came initially to argue with all three findings. Apparently, nobody explained to the Chief how CRC works, including that if they disagreed with him, the case would head to City Council.

Shortly into the "Conference Hearing," the Chief announced he agreed to change the force finding. He then affirmed Officer "A" should be found out of policy for rudeness-- not for the comment about Foroshani's skills as a lawyer, but because he additionally waved goodbye in a sarcastic manner when leaving.

CRC voted 6-0 to affirm their original recommendation to sustain the finding of rudeness on Officer "B." The next day, the Chief, probably realizing he was not up to facing the first City Council appeal since 2003 (PPR #30), backed down (Mercury Blog, October 27).

Case 2015-x-0002: Man with Mental Health Issues Tasered Six Times, CRC Proposes Sustained Finding

The case of bicyclist Matt Klug, who was zapped by Officer Bradley Nutting (#45920) six times following Klug's confrontation with a motorist, came back to CRC for the fourth time on September 7. CRC originally sent the case back because not all witnesses were interviewed (PPR #67), then got stood up by the Bureau (PPR #68), recommending findings in May (PPR #69). Klug pointed out the Bureau had used the wrong version of the Taser policy to make their original "Not Sustained with a debriefing" finding on the use of force.

CRC focused on the new Directive explicitly prohibiting the use of a Taser once a person is in custody and under control. The six Taser cycles have been described in different ways, but we think what happened is: #1, 2 and 3 were "drive stuns" lasting 3, 1, and 1 second, #4 was a drive stun to the leg, #5 saw the Taser's fish-hook probes launched into Klug's back for a five second jolt, and #6 was a one-second zap which the officer didn't report. The Bureau claims the new X2 taser has a button that's badly designed and the officer likely hit it by accident. Ultimately, CRC voted 6-0* to find the Taser use out of policy, because even if the first five uses were in policy, the last one was not. The new Directive calls on officers to try another tactic if the Taser isn't successful after two rounds, so essentially this officer used the weapon four times more than he should have. Probably the most salient comment was when Chair Malone said if the officer had accidentally discharged a different weapon, we'd be having a very different conversation.

On December 7, the Chief came to a Conference Hearing trying to convince CRC to reverse its decision, arguing the officer would not be able to be part of the Enhanced Crisis Intervention Team if found guilty of excessive force. CRC voted 4-0 to send the case to Council.**

*-New members Marisea Rivera and Neil Simon abstained as they had not been at the earlier hearings.
**-New member Andrea Chiller abstained.

Case 2016-x-0005: Motorcyclist Told His Riding is "Stupid," Says Traffic Cop Kicked Him While Riding

In the first new case the CRC has taken on since March, the complainant was a motorcyclist who said a motorcycle cop kicked him in the leg to force him off the road, then called him "stupid." At the November 2 hearing, Appeals Process Advisor (and former CRC member) TJ Browning did most of the talking for the Appellant. However, the Appellant directly explained to CRC the only reason he didn't wipe out on his bike was that he has 10 years of experience as a rider.

That didn't stop Capt. Kelli Sheffer of the Traffic Division from arguing (a) officers are not trained to kick other riders, (b) her officers would not do that and (c) if it had happened, both bikes would have gone down. While she repeatedly cited these reasons and called the allegation "Unfounded (facts don't support the allegation)," she said she was willing to change the finding to "Not Sustained." Despite her admission it may have happened as the Appellant claimed, CRC voted 7-2 to affirm her finding that, in essence, he was lying. Michael Luna and Kiosha Ford both felt "Not Sustained" was a better finding. Sheffer also said if the officer had used force he would have had to call a Sergeant to the scene-- not a compelling argument, since that underscores the officer's motivation to not report the kick.

As to the rudeness complaint, the officer said he had attended to a nasty crash earlier in the day, and was trying to alert the Appellant his (alleged) high-speed driving was "stupid." After a long discussion about how the officer should have known a community member would think he was calling them "stupid," not their behavior, CRC voted 9-0 to add a debriefing to the "Not Sustained" finding.

Case #2015-x-0004: CRC Agrees Mass Detentions at Protest Didn't Violate Law

On the same night Ms. Foroshani's case came back, Chief Marshman also came to argue against the CRC's finding that a commander was out of policy for ordering everyone at a post-Ferguson decision demonstration be detained by boxing them in (aka "kettling"-- PPRs #68&69). In previous hearings, Appellant Theresa Holloway complained it was not appropriate for her to have been told she was under arrest along with about 100 other people, many of whom were on the sidewalk and/or were media covering the event. CRC originally found the commander out of policy for ordering the arrests, then Chief O'Dea had the case sent back for more investigation to look at the detentions. The Bureau found the Commanders on scene were "Exonerated" on all charges.

Marshman repeated this was the first time the Portland Police had used the boxing in technique. It was confirmed by former CRC member David Denecke that the CRC's Crowd Control Work Group didn't discuss "kettling" because they were told police never use the tactic.

Marshman said surrounding people with cops in riot gear is a "successful way to end a protest peacefully." Yet having people standing, marching, or lying in the street for 45 minutes would have caused the same traffic tie-ups the police caused by boxing the people in and taking that long to make 10 arrests.

After some off-topic discussions about whether the protestors should have asked for a permit, CRC conceded the decision to use kettling was within Bureau policy and training, but maybe wasn't the best choice. Although members Roberto Rivera and Ms. Ford preferred a "Sustained" finding, CRC voted 4-2 to revert the finding back to "Exonerated." It's not clear why CRC did not ask to add a "debriefing" to the finding.

Important note: At least three people present at the protest spoke during public input, expressing how the Bureau's actions violated their rights, with others echoing their concerns. At the Foroshani hearing the same night, many community members spoke out against the officers' rudeness. CRC was able to decide for themselves whether the findings were "supported by the evidence"-- showing they are not unduly swayed by public comment. (More here.)

Case #2106-x-0002: Man Pulled Over Questionably Says Officers Cursed, Used Force; No Changes to Findings

On October 5, CRC returned to a case about Warren, a young African American man who was pulled over for "failing to signal a turn within 100 feet of an intersection." He said police cursed at him and used excessive force pushing him on the police car and pulling his arms to handcuff him. Because the officer's commander was not present in February, CRC postponed the appeal (PPR #68). Warren did not come to either meeting.

Allegation #1 was that one officer was rude. When Warren complained he was hurting his arm, the officer allegedly said "I don't give a fuck." Because it was he said/he said, the finding was "Not Sustained." Former CRC member Rochelle Silver noted the officer's attitude of not caring if the complainant was in pain should have been the focus of the investigation, not just the profanity. Ultimately, CRC voted 8-0 to affirm the finding but to add a debriefing.

There was not a lot of discussion about allegation #2, whether the officers pushing Warren against the car was unnecessary force, before CRC voted 8-0 to agree that action was in policy ("Exonerated"). There was a healthy discussion about whether the traffic stop was a case of racial profiling. The officers said they saw the car stop at a flashing red light for "an extended period of time." Although that action is not criminal, they ran the plate and realized the car had recently been involved in a DUI/Suspended License stop-- just not with Warren driving. Commander George Burke tried to stop CRC's discussion since Disparate Treatment wasn't investigated, but CRC noted it's their job to see whether the investigation was thorough.

Warren wrote a letter to IPR explaining why he didn't come to the hearing. CRC debated whether to read the letter aloud. The City Attorney advised against it. After the hearing, Chair Malone paraphrased the letter, saying the Appellant felt nobody in the process cared about him, adding that if he were a white woman he wouldn't have been subjected to the use of force and emotional pain.

CRC Asks for De-Escalation Not Deadly Force

The CRC's Deadly Force Work Group began meeting in 2012. On October 26, CRC finally adopted their draft report including a single recommendation: That the Bureau integrate de- escalation into its policies and training on deadly force. PCW applauded the efforts to define de- escalation, noting the Bureau's SERT team told CRC they believe showing up in armored uniforms is a form of de-escalation. The Compliance Officer/Community Liaison also reports the PPB thinks threatening force is de-escalation.

The report, which was a bit of a mess layout-wise, doesn't mention the Work Group's earlier proposal to let CRC hear appeals on deadly force cases, nor does it address PCW's concern that the PPB Directive on Satisfactory Performance allows an officer to be disciplined for failing to use force. Given that in September, a West Virginia officer was fired for applying his military training to decide not to shoot a civilian, CRC should demand there be no discipline for de- escalating.

The Work Group plans to meet with Marshman, in what should be a public meeting. CRC's proposals should also be presented to City Council.

Staff Closes Trainings to Public, Shares Less Information

Despite bragging about their commitment to transparency, the IPR has been closing off the public to information over time. Their most recent quarterly report-- required by City Ordinance-- covered October-December 2015. Annual reports no longer include meaningful data tables (PPR #69). And, in August when they trained new members of CRC and the Police Review Board, they did not send public notice of the sessions, a change from past policy. When asked why this happened, one IPR staffer said it was because PCW member Dan Handelman kept interrupting the trainings. IPR relied on Handelman for historical information at previous trainings, calling him into the conversation by name numerous times. If there was a problem with how information was being shared, IPR could set ground rules and ask for limited public comment, rather than shutting out the entire community for what they're blaming on PCW.

Though CRC has been told repeatedly the caseload of filed appeals would keep the group busy "until June," staffer David Nguyen admitted (at the November 14 Stakeholder meeting) only six appeals were pending.

New Faces at CRC

To fill seats vacated by members who resigned (Angelo Turner and Bridget Donegan), Council appointed new members on August 31. They are Marisea Rivera, who did advocacy for disabled people in Arizona, and Neil Simon, who covered accountability issues as a journalist. Roberto Rivera was also appointed to a second three-year term. At the November 2 meeting, former Chair Mae Wilson Pfiel announced her resignation, leading to Council swearing in a third new member, Andrea Chiller, on November 23. Chiller is a former attorney who worked both as a public defender and assistant DA.

Also at IPR/CRC:

--The Policy and Protocol Work Group met in September and December to discuss the proposed changes to city code. CRC's Outreach Work Group has met sporadically, with little to show for their efforts.

--Michael Luna, the only CRC member on the revived Crowd Control Work Group, met with Captain Mike Krantz to discuss policy issues, including CRC's 2015 recommendations (PPR #65). PCW has encouraged Luna to make such meetings public.

--After observing police actions at the City Hall protest, CRC Chair Malone reached out to the National Lawyers Guild to find advocates to help people with appeals, filing complaints and formulating allegations.

--City Council inducted 13 new members of the Police Review Board's civilian pool on October 26, including recently resigned CRC member Donegan, and former CRC members Jeff Bissonnette and David Denecke (a previous PRB member). Of the 9 females and 4 males appointed to the PRB, six are former attorneys.

Other than Chiller, one other alternate member, Daniel Schwartz, received training, which is wise since CRC loses two members per year on average.

January, 2017
Also in PPR #70

Portland Copwatch
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