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Review Board Hearings Slow, Oversight System Creates Strategic
Plan From May to August, the Citizen Review Committee (CRC-- what most Portlanders think of as our "police review board") held just four hearings on misconduct, canceling their July meeting when no appeal was scheduled. One appeal involved an officer who, in a rare occurrence at CRC, walked away with a "Sustained" (out of policy) finding against him. They also deferred to the Chief and reversed such a finding in a civilian's case at a "Conference Hearing." The change from the previous pace, in which CRC was sometimes meeting twice in a month, allowed them time to start meeting in Work Groups again for the first time in almost a year (beginning with an Outreach meeting in April--PPR #71). In late April, CRC held a planning retreat, at which the Director of the "Independent" Police Review (IPR), which houses CRC, failed to ask CRC for input into a 5-year plan. Meanwhile, City Council authorized IPR to provide proposed findings when they conduct investigations. In July, CRC members Vanessa Yaros and Jim Young resigned, marking five resignations in a year and a half, far above CRC's two per year average. Below are some details.
Perhaps the oddest appeal in CRC's history, Officer Florin Pirv came to CRC at their June meeting. He asked them to reverse a "Sustained" finding that his job performance was inadequate when he sat in his police car, watching a man take a lawnmower from someone else's property. Officer Pirv met a civilian at a gas station, where the civilian described some belongings he said were in a shed next to a residence where he was being kicked out by the other people living there. The officer went with the man to the house, knocked on the door, and getting no answer, watched from his patrol car as the man disappeared onto the property and took away items (a lawnmower and possibly a bicycle, a leaf blower and tools) he said were his. The investigative summary suggests the man used a crowbar to pry open the shed, but the Officer said he could not see that from where he was parked. A resident of the home filed a complaint that the officer conducted an improper civil standby. IPR did the investigation and the commander found the officer out of policy. During his testimony, Officer Pirv admitted the most he did to object to the man's apparent trespassing, and perhaps burglary, was to say "hey, what are you doing?" As such, CRC was not impressed by his claim that the call was over once he got back in the car, and upheld the Bureau's finding on a 7-0 vote. PCW believes this is the first time an officer has appealed a case and ended up with CRC recommending a Sustained finding. The only other time CRC sent an officer who appeared before them away with a Sustained finding? They wanted to find an officer had inappropriately threatened a civilian ("The next time I see your ex-boyfriend, I'm just gonna shoot the motherfucker") but Chief Foxworth essentially said "you're right, he shouldn't have used the F word" (PPR #37).
In August, CRC heard a case involving a bank robbery suspect who was chased by police and subjected to what he called excessive force. The man jumped over a fence and landed in some kind of container of water, ultimately falling to the ground on top of his own arm. The first officer on scene got on top of him and punched him in the face to try to get him to pull the arm out. Two other officers joined in and hit or kicked him in the torso as well. The Appellant said he could not take his arm out because there was so much weight on his back. Lt. Craig Morgan had no issue with the officers' use of violence, only that Officer "A" referred to his face punches as "distraction blows," since that term was discontinued years ago (PPR #10). Luckily Morgan misunderstood the definitions of findings, saying he could not "Exonerate" the officer because that would mean, in his estimation, that there was excessive force but it was in policy. So he attached a "Not Sustained" (insufficient evidence) finding. CRC was concerned about the way the officer handled the situation and voted 5-3 that the Lieutenant should keep the finding but add a debriefing.
In June, CRC met with Assistant Chief Chris Davis to reconsider their proposal to "Sustain" the allegation that Sgt. Leo Besner's conduct was unprofessional when he told videographer Kif Davis he could not video the police performing a houseless camp sweep ("clean-up'") and grabbed his arm to move him (PPR #71). Five members of CRC had voted to change the finding from "Exonerated" (in policy) to "Sustained," but three of the five said they felt there wasn't enough evidence to say the officer was in policy. This indicated they should have proposed a finding of "Not Sustained." Even though Besner is known as the "million dollar man" because of the amount of money he has cost the city in lawsuits (PPR #52), and Davis described other run-ins with Besner, the facts specific to this incident led CRC to reverse their decision and vote 5-3 to change the finding to "Exonerated with a debriefing." PCW expressed concern to CRC in an email that the Bureau dropped an allegation of retaliation because they believed Besner wouldn't have known whether Davis had filed a complaint against him. That question missed the issue of whether Besner was retaliating on the scene for Davis asserting his rights.
At the May meeting, CRC heard a separate appeal of Kif Davis (#2016-x-0006), which the Committee sent back to the Bureau for more investigation in January (PPR #71). This stemmed from November 2015 when Davis was taping Barry Joe Stull being arrested in City Council chambers when he (Davis) was confronted by a security guard and "escorted" out of the building. He complained the three involved officers used inappropriate pain compliance tactics. Even though Davis' video of the incident was posted online and was part of the case file, CRC refused to let him show it at the hearing. The IPR's follow-up investigation turned up two new witnesses who were on scene but said they didn't witness the specific interactions in question. The Lieutenant who made the findings re- asserted the officers should be "Exonerated" (found in policy), claiming if there had been force applied while Davis was in cuffs there would have been redness and swelling on his wrists, which he claimed was not the case. He further stated if a person is on the ground, cuffed and tries to stand up, an officer can use a wrist lock to control their behavior. However, he claims the officers only grabbed Davis' upper arms. This entire discussion re-ignites the debate about whether officers' use of "control holds" should be considered Use of Force regardless of their intent, and the same way a community member touching an officer is usually charged with assault. The Bureau contends control holds are not force unless there is resistance. The vote was 8-1 to affirm the Bureau's findings on both Allegations #1 and 2, that Officer A and B's uses of force were "Exonerated," with Kiosha Ford voting no each time. Allegations #3 and 4 that Officer A and B applied the handcuffs too tight were both affirmed as "Exonerated" by 10-0 votes. CRC then took a symbolic votes on Allegations #1&2, which led to 6-3-1 votes** saying if CRC's standard of review were to judge by preponderance of the evidence (rather than deferring to the Bureau using a "reasonable person" standard), they would have changed the finding to "Not Sustained" (insufficient evidence).
On June 7, CRC member Michael Luna convened the first meeting of the CRC's Crowd Control Work Group in over two years. The group had made policy recommendations to the Bureau's Crowd Control policy in January 2015 at City Council (PPR #65), but the policy had not been finalized. In the meantime, the Bureau has come under fire for its tactics, including the use of violence and "kettling" (article), neither of which were incorporated into the previous recommendations. While the first meeting acknowledged the importance of gathering information and suggesting changes to policy and training, the second meeting scheduled for July was cancelled. All the more unfortunate because it would have come while the Bureau was asking for input into its Force Directive at the time (article). Also, CRC's Policy and Protocol Work Group is looking to get City Council to change CRC's deferential standard of review, the "reasonable person" standard discussed above, which does not let them judge the evidence on its own merits. Revived by discussion at the May retreat, the Work Group postponed two planned meetings in June, but met twice in July to go over information they collected from other jurisdictions and discuss strategy. CRC's hopes to change City Code now face an interesting obstacle: Director Severe told them at their June meeting that because of the change to the City Charter in May affirming the Auditor's independence (PPR #71), they would likely not be able to ask City Council to do anything unless the Auditor agrees with them.
Despite an agreement that the City will strive to put out meeting notifications 2-3 weeks in advance, the notification of the retreat was put out about 43 hours before it happened. CRC Retreat: Past Members Give Advice, IPR Director Nixes Child Care and Shrugs Off Mayor CRC held its April 22 retreat at the McMenanmin's Kennedy School in NE Portland, shutting out the community for a "get-to-know-you" early session (which have previously always been held in public), then welcoming in everyone including former CRC members May Wilson Pfiel, Jamie Troy, Jeff Bissonnette and Rochelle Silver, who were invited to give them advice. This was followed by a lengthy discussion on CRC's standard of review and other concerns, with no public input taken (also a divergence from previous retreats). Two moments which stood out: IPR Director Severe told CRC that despite their request for child care, which would make it likely more members could attend meetings, the Auditor's office refuses to make such care available based on liability concerns. (Other City advisory bodies including the now-defunct Community Oversight Advisory Board do provide child care, so...) Perhaps more disturbingly, when Jim Young was reappointed to CRC, Mayor Wheeler made it clear it was with the caveat Young would attend meetings by remote, since PCW pointed out he had missed 10 of the previous 15 meetings. Severe said he "didn't care" what the Mayor said because he works for the independently elected Auditor, not the Mayor. But Council has the ability to reject the Auditor's nominees for CRC and the Mayor was trying to ensure Young would participate, not trying to interfere with the Auditor's independence. Young attended in May but missed the June meeting before resigning just three months into the new term.
On Friday, April 14, IPR posted information to its website about upcoming community forums to discuss its five-year strategic plan. The problem? The first forum was scheduled for April 15, the next day. Information had run two days earlier in the Skanner, which is how PCW was tipped off it was happening. When asked why IPR was doing such poor outreach if they were looking for community input, they stated they had shared the information with CRC (which, again, didn't discuss the plan at its retreat), and were "reaching out in stages, with an eye toward encouraging voices that might not otherwise reach us." In other words, PCW and other people who regularly attend CRC meetings and might have meaningful comments were not invited. IPR could also have mentioned the forums at CRC's monthly meeting (April 5), or at the City Council meeting at which the IPR ordinance was changed (April 13)-- particularly since future changes to IPR were part of the discussion at that hearing. IPR held three other forums on April 19 and 28, and May 8. A PCW member reported only four community folks were at the third forum-- including her. In our comments to IPR, PCW noted its support for some stated goals as well as issues of concern in the substance of the plan, including: --IPR wants to become more independent, including gaining the power to compel officer testimony (PCW shared goal); --there is no effort being made to investigate deadly force cases or revise the Police Review Board which recommends findings on such cases (PCW strongly disagrees); --IPR lists providing CRC with its own staff person as a "future goal," presumably after the five- year period ends in 2021 (problematic for PCW); --there is no proposal to provide an advocate for persons filing complaints (another longstanding PCW issue). IPR noted that in order to compel officer testimony, they need to revise the Police Association contract, which could have been done last October had the City not thrown all their money at getting rid of the 48-hour rule (artcle). The strategic plan lists changing the bargaining agreement as one goal, but doesn't mention possible changes to state law that the Director referenced (without a detailed explanation) at the April 13 Council meeting.
--IPR released a long-awaited report critiquing the Bureau's failure to identify officers who had credibility problems for court cases (see article), and announced it would look into policy issues around the police crackdown on protestors on June 4 (article), claiming complaints that came in weren't specific enough to prompt misconduct investigations. --IPR hired new Analyst KC Jones in January. The hiring wasn't mentioned in any of the Director's reports to CRC, but it enabled IPR to put out its annual report and revive its quarterly reports after more than a year's absence (article). --In addition, Portland Mercury food reporter Andrea Damewood now works for IPR as an investigator. --A video documenting the Matt Klug case (in which he was struck 6 times by a Taser) which went before City Council in February (PPR #71) is now streaming on the Flying Focus Video Collective website at: flyingfocus.org/CRC2017stream ingpage.html. PCW sponsored the online presence of the hour-long show "Tased and Confused: Civilian Oversight in Portland 2017." Contact IPR at 503-823-0146 *This case was inappropriately re-numbered as 2017-x-0001 by IPR after the scheduled December hearing was cancelled for snow. They claim the appeal number should match the year the hearing is held, but that has never been how the numbering system has worked. ** Note: During the meeting, Jim Young said he would have voted for an "Unfounded" finding (facts do not support the allegation) in the symbolic vote, but confirmed in a later email he meant he would have chosen "Not Sustained."
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September, 2017
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People's Police Report
#72 Table of Contents
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