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First Misconduct Case at Council in 14 Years as Review Group Hears Last 2 Appeals
Cop with Neo-Nazi Past Has Oversight Director Investigated;
Crowd Control and Deadly Force Policies Examined

Though the Citizen Review Committee (CRC) was holding two meetings per month through most of 2016 to catch up on hearing appeals of police misconduct cases, they only held five meetings in the first four months of 2017 as their backlog cleared out. In addition, CRC brought its first appeal to City Council since 2003-- the case of Matt Klug, who had a Taser fired at him six times (PPRs #67, 68, 69 and 70). Council didn't agree with CRC-- but also didn't agree with the Bureau. Meanwhile, Director Constantin Severe of the "Independent" Police Review (IPR) was investigated based on a complaint by former Neo-Nazi and current PPB Captain Mark Kruger. Portland Copwatch agrees with Auditor Mary Hull Caballero that Severe doesn't deserve to be disciplined in that case. Both Severe and CRC indicated they planned to weigh in on the Bureau's Crowd Control Directive (article). And, CRC's Deadly Force Work Group report was, at last, finalized and approved in March.

Case 2015-x-0002: Man Tasered Six Times; Council Splits Difference Between CRC and Bureau's Findings

CRC voted 4-0 to press forward with their recommendation to find Officer Brad Nutting violated policy in using his Taser six times against Matt Klug (PPR #70). City Code provides the next step is a hearing at City Council. On February 22, in the first such hearing in 14 years, Council made two "split" decisions. The first was a 3-2 vote that a reasonable person, given the evidence, could not agree with the Bureau's finding of "Exonerated (in policy) with a debriefing." The second was that the finding should be "Not Sustained (insufficient evidence)," which came after Commissioner Amanda Fritz asked to revisit a 2-2-1 vote (she had been the only Council member wanting to support CRC's proposal to "Sustain" the allegation) and joined Commissioners Fish and Eudaly. Unfortunately, because of the ongoing incompetence of the City Attorney's office, the Council failed to add a "debriefing" to the finding, meaning that even though several of them talked about the need to de-escalate, the officer won't receive such counseling formally.* This would have been particularly important because the officer came upon the situation and decided to use the Taser based solely on his perception that Klug, who was apparently in a mental health crisis, was about to strike "Sergeant A," and Nutting is, apparently, part of the Enhanced Crisis Intervention Team (ECIT), specially trained to help people in mental health crises. Chief Marshman told CRC in December (but didn't mention to Council) that he didn't want to Sustain the allegation because Nutting would no longer be eligible for the ECIT.

It's probably not a coincidence that the outcome of this case closely follows what happened with the case of Merrick Bonneau in 2003, where CRC also wanted to Sustain the complaint over the Bureau's "Exonerated" finding and Council voted to find "Insufficient Evidence." The main difference is that back then, the IPR Director offered his opinion to Council, swaying their vote, and five CRC members quit in frustration (PPR #30).

One striking thing about the hearing was that Chief Marshman stated several times there is "no residual harm" caused by Tasers, even expressing how he'd felt pain when he volunteered to get hit with the electroshock weapon in training. CRC Chair Kristin Malone and Commissioner Fritz both called him out on this point, but neither mentioned how Amnesty International has documented over 700 cases in which people have died after being tased. We'd call that residual harm.

A few other points of interest about the Council hearing:

--Chair Malone did a great job summarizing both the reasons CRC felt the officer was out of policy (the Directive only allows Taser use for "active aggression" or if a restrained person is endangering someone), and the lengthy process which brought CRC to the table. However, although this was technically CRC's appeal to Council, she was given far less time to speak than the Bureau.

--Chief Marshman and Internal Affairs Captain Jeffrey Bell repeatedly showed the 30-second video of the incident, but without the audio in which Klug is screaming in pain. (It's possible they didn't want to play him saying "you're a f*ing idiot" in Council Chambers and over cable TV.)

--Though Klug was accompanied at the table by former CRC member Eric Terrell acting as his Appeals Process Advisor, Council did not solicit input from Terrell. Klug spent much of his time talking about his criminal and civil cases rather than the original incident.

This last point is of interest since the protocols Council used to guide the hearing strictly limited Klug to a 10 minute presentation. Even though IPR wrote protocols adopted by Council for use at the hearings years ago, a new set of protocols was developed for this hearing... but Chair Malone revealed the City Attorney refused to show them to her until the day of the meeting, citing "confidentiality." When Malone revealed this information at CRC's March 1 meeting, Director Severe agreed the City's behavior was not respectful.

*Commissioner Fritz told PCW in a follow up email two days after the hearing that the officer had already received a debriefing, but Bureau protocols state that can't happen until the administrative process is completed... which didn't happen until the Council voted.

Because the Mayor put City Hall on lockdown after Council was interrupted by protests on the morning of Feb. 22, only a few community members made it into Council Chambers for the hearing (others had to watch by remote in the Portland Building next door). The City Attorney reported the officer did not want his case deliberated on in a public forum, so Council moved into "executive session," failing to report back the nature of their discussion as required by state law when they returned. Furthermore, the City was overly cautious and declared not only would there be no public comment before Council's vote, but they shut the hearing down right after the vote and didn't ask for input, even though the allegedly private part regarding the officer's employment was completed.

Case 2017-x-0002: Activist Monitoring Police at Houseless Camp Sweep Escorted Away from Scene

In April, CRC heard both the Case File Review and Appeal of videographer Kif Davis (#2017-x- 0002) based on officers ordering and then escorting Davis away from a "clean-up" at a houseless camp. Though CRC agreed Sgt. Leo Besner was within policy to ask Davis to move, they split on whether he was retaliating against Davis by physically grabbing his arm to take him further away from the inmate clean-up crew. Ultimately they voted 5-4 to ask the Bureau to "Sustain" the finding of inappropriate conduct, even though three members explicitly said there was not enough evidence to support or deny that allegation (which a "Not Sustained" finding would cover).

Case 2016-x-0006: Activist Videoing Arrest of Person Asking for Ambulance at City Hall Violently Arrested

On November 25, 2015, community member Barry Joe Stull was arrested after refusing to leave City Council chambers until someone got him an ambulance. Kif Davis, also the appellant in 2017- x-0002, was videoing Stull's violent arrest when a security guard interrupted his efforts and got police to arrest Davis as well. Davis said three officers applied inappropriate pain compliance tactics against him. At a special January 26 meeting, CRC held a Case File Review on Davis' appeal (2016- x-0006) of the Bureau's findings of "Exonerated" and noted IPR and Internal Affairs had only interviewed police, security guards, and a person from Cable Access who videos City Council meetings.

There were a number of other people visible on the existing videos, including Charles Johnson. The Bureau claimed they couldn't find him because his name is so common. However, Johnson is the person who threw water on CRC member Jim Young in March 2016 (PPR #68). The IPR Director testified at the criminal harassment trial against Johnson. Johnson also appears more or less weekly at City Council to testify on a variety of issues, and attended most meetings of the Community Oversight Advisory Board, so it's not as if he would have been difficult to find. (Note: As a result of Johnson's conviction, he is not allowed to attend CRC meetings for one year, but that doesn't prevent IPR or IA from interviewing him.) CRC voted 8-0 to send the case back for more investigation.

Captain Kruger Has Director Investigated for Violating Confidentiality

We've written many times about Captain Kruger in this newsletter-- how he used to ride around in a car with his friend doing Nazi salutes and yelling racist slurs (PPR #31), grabbed a protestor by the face and displayed a picture of it dubbing himself "the Claw" (PPR #32), nailed up a plaque to honor Nazi soldiers in a city park and was disciplined for it (PPR #52), and escaped discipline for harassment against a female subordinate but was disciplined for pinning up the memo clearing him and revealing her name on the semi-confidential document (PPR #59). Kruger then got Mayor Hales to wipe out the record of both sets of discipline by suing the city (PPR #63).

According to the January 11 Portland Mercury, he also got an investigator to say Severe violated state law by revealing that Kruger obstructed the Police Review Board proceedings in the case of an officer who grabbed at another videographer's camera. Kruger called the complaint "pettifogging" and apparently acted "hostile and combative" at the PRB. The case was later heard at CRC, and after the vote, Johnson threw the water on Young. Though the hearings officer looking at the case agreed with Kruger, Auditor Caballero told the Mercury, "'[The Director] used his best judgment in a difficult situation,' arguing there's leeway in City Code to allow Severe license in sharing information about the PRB." The Mercury says Kruger also filed a complaint because nobody stopped the CRC meeting after people shouted epithets at him and the water-tossing happened, even though he (Kruger) wasn't hit by the water. That investigation cleared Severe.

Apart from Kruger's ongoing narcissistic behavior, this is also disturbing because what Severe reported had nothing to do with the proposed administrative findings against the officer under scrutiny-- only Kruger's disdain for the process. It's not clear whether Kruger called out Severe or former IA Captain Derek Rodrigues for pointing out to CRC that Kruger used an enhanced video which wasn't part of the investigation to make his finding; a complaint about Rodrigues wasn't available to the Mercury.

At the February meeting, Director Severe acknowledged 2017-x-0002 was the last appeal pending before CRC, even though they were trying to ram through changes to City Code governing IPR last year because there were so many appeals, it would take CRC until May 2017 to hear them all. (More on Code and Charter changes here)

Crowd Control Considered; Deadly Force Work Group Report Finalized

In mid-January, the Bureau announced it was asking for public input on its Crowd Control policy. At their February meeting, a number of CRC members volunteered to join the Crowd Control Work Group and encouraged member Michael Luna to schedule a public meeting of the group, but that never happened. Apparently, to meet the 30 day comment deadline, some CRC members sent in individual comments. Since the Bureau released a second draft in mid-March with a 15 day deadline (article), CRC didn't even have a chance to weigh in. The members' renewed interest was also in part because Director Severe announced IPR is looking at crowd control policies as part of its investigations into misconduct complaints about recent protests (article). It seems IPR and CRC should be working together on this issue, since CRC began examining the policy six years ago, and City Code specifically says they should advise IPR on such recommendations (3.21.170[C]).

At its March meeting, CRC finally had a presentable version of the Deadly Force Work Group report recommending de-escalation as an overarching training concept (PPR #70). Interestingly, Mayor Wheeler mentioned this idea of emphasizing de-escalation during his State of the City address on March 24. (Side note: While he also talked about reducing racial disparities, Wheeler didn't mention the name of Quanice Hayes, the African American teen killed by police on Feb. 9.) Portland Copwatch continues to encourage CRC to present the recommendation to City Council since the Chief doesn't hold public meetings.

Other Goings-On at IPR and CRC:

--None of CRC's Work Groups held public meetings until the Outreach Work Group re-convened in April.

--CRC planned a retreat for April 22 (2 days after PPR deadline).

--The IPR Director's monthly report to CRC continues to avoid stating:

• how many appeals are pending

• why IPR decided to investigate certain cases instead of turning them over to Internal Affairs

 • the nature of comments made to IPR about police activity (only broad outlines)

• when items related to IPR/CRC are scheduled to come before City Council

• when the next CRC meeting is scheduled.

--In April, member Jim Young was reappointed to a second term despite PCW pointing out he had missed 10 of the previous 15 CRC meetings. Young's term technically ended on February 19 but, as Chair Malone reminded PCW, City Code provides "a committee member shall serve until re- appointed or replaced" (3.21.080[B][2]).

--Also at the April meeting, Malone and Vice Chair Julie Ramos were re-elected, with Kiosha Ford voted in as "Recorder" so she can chair meetings in their absence (as she did in January).

May, 2017
Also in PPR #71

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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