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Oversight Committee Hears Two New Cases, Chief Agrees to Discipline Officer in a Third

More Membership Changes, Investigative Bias Trends, Failures of Transparency, and Structural Issues Abound

So far in 2018, the Citizen Review Committee (CRC), Portland's public police oversight board, has heard two new cases, sending one back for more investigation and agreeing with the Bureau's finding in another.

The new Chief agreed an officer was out of policy in the older case of a civilian video-recording police heard in October (PPR #73). Three new members were inducted to replace three members who left CRC, with a new resignation in March still leaving the 11-member body one shy of full capacity. CRC identified a trend of leading questions by investigators. As part of a different pattern showing a decline in transparency, the "Independent" Police Review (IPR), which houses CRC, shut Portland Copwatch out of a public ceremony with the support of the elected Auditor. The Auditor, whose office in turn oversees IPR, made changes to the City Ordinance based on a Charter Change she pushed in 2017 (PPR #72) but left the CRC's structure lacking in authority.

Case #2018-x-0001: Officers Denigrate, Beat Man Who Drove Into Precinct Accidentally, Feds Find Video

At their February meeting, CRC heard appeal #2018-x-0001,* filed by "Gary from Beaverton," who says one officer called him a "f-g-t" and another threw him up against a van and kicked his legs after he mistakenly drove down the exit ramp at Central Precinct in late 2016. The police accused Gary of being drunk and filed 12 charges against him including DUII, but all charges were dropped. The ramp area is used to transport prisoners into the jail at the Precinct, which is run by the Multnomah County Sheriff's Office (MCSO). Even though Gary was accused of committing multiple crimes, the MCSO said they did not preserve video of the incident. A separate video in the booking area apparently did not capture the first officer calling Gary the offensive name.

At the hearing, Gary's Appeal Process Advisor, former CRC member TJ Browning, coached Gary into revealing the FBI had obtained video of his car entering the ramp‹which the police and Sheriffs said did not exist. IPR Director Constantin Severe told CRC that although the City Ordinance governing IPR allows him to subpoena evidence and witnesses, he cannot subpoena another government agency. Portland Copwatch (PCW) believes that is not true. Portland City Code 3.21.210 allows IPR to compel witnesses or evidence, except for sworn Portland Police officers.

The finding on the derogatory name was "Not Sustained" meaning there was insufficient evidence to prove or disprove it. The finding on use of force by Officer B was "Unfounded," which in essence means it did not happen. At the least that finding should also have been "Not Sustained." Regardless, CRC voted 6-1 (with new member Vadim Mozyrsky voting no) to send the case back for more investigation.

*-The IPR also numbered a withdrawn case discussed below as 2018-x-0001. It is not clear why they continue to ignore their long-standing numbering system (PPR #72).

Case #2018-x-0002: Man with Abrasions, Cracked Ribs Says Cops Used Excessive Force

At the March meeting, CRC heard a case appealed by a man who was in a bar in 2014 and was beaten by a police officer who stopped him from leaving- even though the officer's goal was to get him to exit the bar. The Appellant was unable to attend the hearing as he was incarcerated (it was not clear whether the charges stemmed from this incident). Someone working at the bar called the police because the man was allegedly intoxicated and refused to leave. Officer A asked him for identification, and when the Appellant refused and turned to go, the officer grabbed his arm and took him to the ground with an "arm bar hold." Somehow, despite the officer having a hold of his arm, the man was able to get both arms under his body (a move the cops call "turtling up"). After a backup officer arrived, Officer A kneeled on the man's back, then delivered blows to his side. CRC members revealed the man had abrasions on his head (which Internal Affairs chalked up to his hitting his head on the floor when he fell) and three broken ribs (which IA implied might have been the result of a tussle with police which occurred previously on the same day).

The Bureau found the officer was in policy but needed to be talked to about how to handle the situation better ("Exonerated with a debriefing"). Lt. Anthony Passadore told CRC the officer had already been debriefed by his Sergeant three years ago‹ even though such a debriefing is not supposed to happen until after an investigation is completed including CRC appeals. Passadore defended the officer's actions by affirming the officer's claim the man took a "fighting stance," and could have been reaching for a weapon when he was on the ground. A long discussion included Passadore explaining that under new training prompted by the US Department of Justice Agreement, it's likely the officer would have just opted to let the man walk away, and/or pried the man's arms out rather than kicking him. CRC asked for the new training to be part of the debriefing. The man was apparently booked for trespassing and disorderly conduct.

Passadore may be familiar to PPR readers as the man who shot and wounded Scott Suran in 2006 (PPR #40), was hostile to community input when he sat on the Community/Police Relations Committee (PPRs #48 & 54, for instance), and yelled at a person on rollerblades before ticketing her for going through a stop sign (Portland Mercury , January 22, 2014). He explained the officer holding the man's arm to get him to the ground but then kicking him to get his arms out from under him by saying the armbar is "rarely perfect." He also stated when officers "have to" use force, it does not look pretty and "injury does happen."

Unfortunately, it sounds as if the initial investigation into what happened did not elicit witness testimony from other patrons at the bar (likely because the police were running the investigation rather than a true civilian oversight agency). As such, it is not clear why CRC voted 7-0 to uphold the Bureau's finding rather than change it to "Not Sustained."

To his credit, new CRC member Albert Lee raised a lot of questions about the investigation and expressed concern the Appellant was not present for the hearing. Member Daniel Schwartz noted the officer escalated the situation by grabbing the man's arm. Member Julie Falk revealed the audio recordings of the investigation were not provided to CRC members until the day before the hearing, which is odd because in previous years those recordings were always part of the case file.

Three Other Cases: Chief Responds to Two Proposed Sustained Findings, Appellant Withdraws January Case

As noted above, Chief Outlaw agreed to find Sergeant Erin Smith out of policy ("Sustained") for telling a videographer "I could arrest you" for taping the police at a protest (#2017-x-0007). The news was first reported by the Mercury on January 16 and confirmed at CRC's February meeting. On the other hand, in the case where CRC voted to find an officer out of policy for inappropriate behavior during a domestic violence investigation (#2017-x-0006, PPR #73), the Chief sent the case back for more investigation. Professional Standards Captain Jeff Bell promised in January that new findings were forthcoming.

In January, a person who filed an appeal regarding an officer who fired less lethal projectiles at someone during a protest at the airport (#2018-x-0001-A) withdrew the appeal days before CRC met. Chair Kristin Malone indicated the withdrawal was partly because the person was a witness to the incident and not the subject of the (probably excessive) force.

CRC Spots Trend of Leading Questions‹ One Case at a Time

One of CRC's mandates in City Code is to make recommendations based on trends in police behavior. At three separate meetings, they identified leading questions being posed by investigators, but seem satisfied with IPR and IA claiming they have or will speak to those responsible. In January, Chair Malone said she spotted investigators finishing sentences for officers, using an example of one saying "...and you do that as a normal part of your job." In February, Ms. Browning spoke about how one investigator told a witness command staff had already found the force used in policy, thus swaying the outcome. Malone pressed Captain Bell about the leading questions and he apologized, saying once the investigation is tainted you can't go back, but he spoke to that investigator. He also pointed to the joint training for IPR and IA (see article) as a way to get officers to buy into the accountability system‹ ignoring that civilians are highly mistrustful. In March, Mr. Lee complained about investigators reading statements from officers' reports to them as a way to lead them on. Capt. Bell said such refreshers are an exception to the rule on leading questions. PCW wonders why the investigators aren't ordered to say "it says in your report that..." so it is clear the purpose is to "refresh memory." PCW hopes CRC will make a formal recommendation regarding this disturbing trend.

Turnover at CRC Highest Since 2003; PCW Shut Out at City Hall

With the resignation of Roberto Rivera (on CRC since August 2013), the membership turnover at CRC has reached its highest point since 2003 when five members quit en masse and another resigned for separate reasons the next month (PPR #31). Over the 9 month period from July to March, six CRC members left the group, five of whom resigned. The prior resignation was Marisea Rivera (no relation), who was on CRC for just over a year.

Two African American women‹ former Vice Chair Julie Ramos, who resigned and Recorder Kiosha Ford, who decided not to re-apply‹ were replaced by City Council in January. Their replacements are Mr. Lee, a Korean/African American man who is a Business and Computing Dean at Portland Community College, and Mr. Mozyrsky, a Social Security judge who has ties to the Asian/Pacific Islander community and sits on the Commission on Disabilities. Ms. Rivera was replaced in March by Hillary Houck, one of the first members with direct ties to the houseless community since former Street Roots editor Bryan Pollard left CRC in 2002. Ms. Houck works for Human Solutions but did not describe ever being houseless herself in her application.

By PCW's count, there are currently five men and five women on CRC, with only two identifiable persons of color; previously there were seven women and five people of color. IPR has gone back and forth on including CRC applications in City Council documents for the public (most recently opting to leave them in), but has begun excluding the racial and age data page from the public. However, from other parts of the documents PCW determined only one of CRC's current 10 members, Michael Luna, is over the age of 50. Even so, he, like the other members, is working a full time job and thus important work on policy issues is not getting done.

When PCW raised concerns about the over-representation of professionals and lack of retirees, Mayor Wheeler said he did not want to "micromanage" the Auditor's choices. City Code requires Council to affirm the nominees and includes a process in case they reject one or more (3.21.080[A][5]), and requires the composition of CRC to reflect the demographics of Portland (3.21.080[A][6]).

PCW members Dan Handelman and Regina Hannon attended the January City Council session. When Mr. Handelman attempted to follow IPR and CRC into the Auditor's office for what has traditionally been a public swearing-in ceremony, IPR staffer David Nguyen shut the door in his face. Ms. Hannon demanded an apology from Director Severe and Nguyen at the February CRC meeting. Not receiving one in March, PCW filed a formal complaint with the Ombudsman. Unfortunately, the Ombudsman (who also works for the Auditor) turned the complaint over to Auditor Mary Hull Caballero, who defended Nguyen's actions by claiming the door is not a public entrance (even though almost a dozen people had just walked through it) and referencing security issues. Even though IPR Outreach Coordinator Irene Konev told PCW the swearing-in was supposed to be public, PCW has still not received an apology, nor a response to our objection to the outcome of our complaint.

Structural Changes

On February 21, the Auditor brought forward changes to the IPR ordinance intended to guarantee their continued access to confidential City documents. This is partly because the Charter change passed last May solidified her independence from the other five elected officials (City Council) including that she can hire her own legal counsel. Although she has, the Auditor's lawyer has not attended any CRC meetings. Moreover, the City Attorney, who usually helps arbitrate CRC's adherence to Code, stopped coming to meetings in January. The Auditor told Council this is in order to allow CRC to ask its questions about an appeal ahead of time so the attorney is not ruling on the spot. Obviously, nobody knows what legal issues might come up during a hearing, and it feels more as if this is a passive-aggressive move by both the City Attorney and the Auditor to leave CRC dangling.

It is of note that in the first nine years IPR/CRC existed, the City was extremely reluctant to change the IPR ordinance, but it has now been changed nearly annually since 2010.

CRC Leadership and Work Group Updates

Because the former Vice Chair resigned in October and the Recorder (responsible for meetings to be audio-recorded, track to-do items, and to chair meetings as third-in-command) termed out, a special election was held in January at which Candace Avalos was named Vice Chair and Mr. Schwartz became Recorder. The positions were reaffirmed in April.

Avalos also replaced Mr. Luna as chair of the Crowd Control Work Group. Avalos jumped right in, holding meetings in February, March and April with talks of holding a public forum for feedback on police and protests. The only other Work Group to hold publicly announced meetings has been the Policy and Protocol Work Group, which met in January with Mr. Schwartz now at the helm. That Work Group continues to seek Council approval to change CRC's deferential standard of review (see: every PPR since 2002). Chair Malone reported meeting with the Mayor and Chief and feeling they are not opposed to the idea; draft code changes are supposed to go before CRC in June before heading to Council.

Also at CRC:

With no appeal hearing, the January meeting became a free-rolling conversation about member retention and other longstanding issues. While member Neil Simon expressed he felt heard at a Police Review Board hearing in November/December, Chair Malone doubled down on earlier statements she's made about the secretive body. In considering serious use of force cases, she said she feels the process is "very difficult," saying command staff are resistant to discussion, the moderator shut off the meeting before policy recommendations were made, and that she feels as if they are voting on opinions which were foregone conclusions. At the April meeting CRC talked about their standard of review and a retreat planned for April 29.

Contact IPR at 503-823-0146

May, 2018
Also in PPR #74

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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