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"Independent" Police Review Seems to Shun Its Citizen Review Committee
Community Board Hears Two Appeals, Pushes Forward Effort to Strengthen Authority

Since late April, the "Independent" Police Review (IPR), which processes complaints of police misconduct, has seemed to distance itself from the Citizen Review Committee (CRC), a civilian body which by City Code is required to advise IPR on operations. IPR put out an analysis of the Portland Police Bureau (PPB)'s Crowd Control tactics with no input from CRC's Crowd Control Work Group, did not send staff to CRC's April 29 retreat, and gave a deadline to comment on its protocols which initially would have precluded CRC from participating. In the meantime, CRC held two appeal hearings on misconduct cases, in June and August, having canceled its May and July meetings. At their June meeting, they voted to formally adopt a proposal which would change the way they review cases, from one requiring them to defer to police decisions to one where they decide a case on its merits.

In August, CRC heard appeal 2018-x-0003 filed by a community activist who says when she was video-recording a tank-like vehicle returning to North Precinct in May 2017, ^-1 she was forcefully grabbed on the arm by Lt. Leo Besner (#27981), threatened with arrest, cited for jaywalking in retaliation for her efforts, and treated discourteously and without appropriate de-escalation. In addition, the Appellant says Besner and Officer Neil Parker (#49837) gave false testimony in court. Parker claims that because he was not in a regular uniform (he was in camouflage), he called in Besner when he feared the Appellant's photography was related to an ambush on police. Officer Parker also failed to give the Appellant a business card, which he excused by saying that his name was on the bottom of her citation (a common tactic). PPR readers may recognize Besner's name-- we cited his history last issue when noting he had been assigned to the Training Division.* He was the subject of a similar complaint by cop watcher Kif Davis last year, in which Davis also said Besner roughly moved him using too much force; CRC ultimately changed the finding to "Exonerated with a debriefing" (PPR #72).

Two findings were not presented to CRC, listed instead as "Internal reporting allegation -not applicable." If a cop retaliated against someone for copwatching, manhandled them unnecessarily, and cited them for a petty infraction, one way to cover up their malfeasance would be to avoid reporting what happened. Therefore, taking those findings out of CRC's purview, when all police conduct is supposed to be judged based on "the totality of the circumstances," is unconscionable.

CRC voted 7-1 to Sustain the allegation that Parker issued the citation in retaliation for the Appellant's actions, since his interviews focused on her photography and a negative face she made at the armored vehicle, rather than the alleged jaywalking. They also voted 5-3 that Besner violated policy by threatening to arrest the Appellant for failing to produce ID, which was supported by over 50% of testimony (only Besner said he told her he would "detain" her, which would have been OK). Though Parker admitted not giving a card to the Appellant, that finding was orignally "Not Sustained" with a suggested debriefing so he remembers his cards next time he dons camouflage. Since Directive 312.50 requires officers to carry business cards, CRC voted 8-0 to Sustain this allegation.

CRC also voted to move two findings from "Exonerated" to "Not Sustained": whether Besner used inappropriate force (8-0), and whether he failed to adequately manage the confrontation (5-3). CRC supported the Bureau's "Not Sustained" findings on five of the allegations, meaning they agreed there was not enough evidence to prove Besner was confrontational, that either officer was untruthful in court, that Parker's report was inadequate, or that Besner violated an eyewitness' right to observe the interaction by ordering him to move nearly a block away. Though the officers claimed they did this for the witness' safety, they never alleged the Appellant had a weapon; perhaps the fact that her witness was an African American man made them nervous. On this question, CRC's vote was a close 5-3, while most of the other four were unanimous.** They also unanimously voted to affirm that Besner's failure to de-escalate did not violate policy ("Exonerated") because de- escalation was not required until August 2017.

For some reason, Lt. Tina Jones was allowed to review the actions of another person with her rank (Besner). At the hearing, she was dismissive of minor contradictions in the civilians' stories, but seemed to take the officers' word most of the time. CRC pointed this out, thanking Jones for her thorough presentation even though they disagreed.

In June, CRC reluctantly moved forward with a supplemental hearing on case 2018-x-0001, in which "Gary from Beaverton" said the police threw him up against a van and kicked him, and called him a homophobic slur after he accidentally drove down the exit ramp at Central Precinct (PPR #74). The Multnomah County Sheriff's Office, which manages the jail at the Precinct, originally told IPR there was no footage of the man's arrest, but after Gary told CRC the FBI had access to such footage, it magically appeared for the new hearing. IPR Director Constantin Severe said there was no reason given why the footage was originally not provided. The footage did not capture the confrontation between the officers and the Appellant. However, Officer B admitted to taking Gary into a "control hold" and "escorting" him to the hood of the police van. This means he did use force, but perhaps not excessive force, so the Bureau changed the original "Unfounded" (did not happen as alleged) finding to "Exonerated." A Sheriff's Deputy said he took Gary to the ground, and Officer B told investigators he saw Gary "scraped up [with a] bit of blood on his face." CRC ultimately voted 7-1 to affirm the Exonerated finding, in part because the officer involved was on desk duty due to an injury so it was "unlikely" he used the force described. Only new CRC member Hillary Houck voted no, correctly stating there was not enough evidence to reach a conclusion. It is not known what the outcome was of the Sheriff's internal investigation into the Deputy's conduct. Due to lack of evidence, CRC also unanimously (8-0) affirmed the "Not Sustained" finding about whether a homophobic slur was used.

CRC was reluctant to hold the hearing when Gary failed to appear even though his Appeals Process Advisor TJ Browning was present. Deciding to make a policy for such circumstances later, they voted 7-1 to proceed, with member Andrea Chiller concerned about the Appellant's absence.

IPR's Crowd Control report, released May 31, ostensibly focuses on the police response to protests in June 2017, where police cracked down violently on antifascist protestors but treated right-wing "Patriot Prayer" types with kid gloves (PPR #72). IPR describes the police tactics in trying to keep the groups apart, then the "kettling" in which over 300 people were detained for over an hour while officers photographed them and their identification. IPR did not focus on the middle part of the protest, when police used batons, chemical and physical "less lethal" weapons to push the antifascists out of Chapman Square. Portland Copwatch (PCW) complained about how CRC's Crowd Control Work Group also avoided addressing violence used at protests in their 2014 recommendations to the Bureau (PPR #64). The Work Group started up again before the 2017 protest, but IPR did not seek input from CRC members about the nature or substance of the new report.

To their credit, IPR did state that the detention of so many people without individualized suspicion of criminal activity appeared to be an abuse of governmental power. They recommended the PPB retain communications among officers, not detain legal observers or media, and stop taking pictures of people who are not charged with crimes. Technically, collection or retention of such information violates ORS 181A.250. IPR noted the City still had the photos a year after the event, partly because they needed to keep evidence for the lawsuit filed against them by the ACLU for their actions that day (PPR #73).

The Crowd Control Work Group continues to plan a community forum on police actions at protests, but in late April Work Group Chair Candace Avalos decided to look for a date in the fall. The Work Group has not met since.

CRC held its retreat at McMenamin's Kennedy School, its go-to location for the last several years. The first large section of the meeting, which was facilitated by consultant Brad Taylor,*** was not open to the public. This was supposedly so the group could get to know each other on a personal level. There was no mechanism described to ensure CRC business was not discussed outside an open meeting, which would violate Oregon State statutes. Participating in the retreat were CRC's two newest members: Houck, who was sworn in mid-March (PPR #74), and Jihane Nami, who works at Portland State University, but was not sworn in until May 2-- three days after the retreat. Ms. Nami is about 39 years old, continuing the trend of non-retired professionals making up the majority if not the entirety of CRC. All 11 members are now 57 years old or younger. The eldest, Michael Luna, did not go to the retreat. But perhaps more significantly, IPR did not have a staff person present, in contrast to statements they occasionally make about how important CRC is to the oversight system. IPR is usually present at least to observe and to answer questions which might come up.

A lot of the discussion at the retreat's two hour public portion was focused on concepts of how CRC might function, leading one member to express how their requirement to be transparent can hinder their effectiveness. While the comment is understandable, the solution would be to hold more public meetings, not to complain that the law says the public has to observe CRC's deliberations. Nearly a half an hour was lost when Taylor realized he had not printed some of CRC's comments, and nobody could find a printer at the Kennedy School.

On June 1, a few days before CRC's monthly meeting, IPR released drafts on six of its Protocols, official guidelines laying out procedures and generally based on City Code. Several of the existing and proposed policies directly reference CRC, but IPR did not mention its efforts to update these protocols until the June 6 meeting, giving a deadline of June 30 to comment. Since CRC's own protocols require that the entire group approve anything going out in their name, this effectively cut the Committee out of the process. PCW's comments to IPR led off with this observation, perhaps leading to IPR then extending the deadline until August 2-- the day after CRC's next meeting (the July 4th meeting was cancelled for the holiday). The original CRC, appointed in late 2001, helped develop all the original protocols, and helped craft amendments over the years as well.

The policies on complaint processing (in which notice to complainants of their right to appeal to CRC is mentioned, and IPR adds new abilities for itself to dismiss complaints), administrative investigations, supervisory investigations (which, as "Service Complaints," required CRC audits from time to time) and monitoring PPB investigations all had their share of problems. The one on Mediation previously required CRC to audit this function occasionally, but a proposed change just says they "may" do so. The Appeal Request policy-- which directly impacts CRC-- incorporated a few reasons IPR says it can dismiss appeals which are not written in the ordinance.

When IPR was first created in 2001, PCW and others in the community failed to notice that when CRC was charged with deciding if a Bureau finding is "supported by the evidence," that was defined as whether a reasonable person could come to the same conclusion, even if they disagreed. This has led to many Appellants leaving CRC hearings in frustration as members vote to affirm Bureau findings, stating (and sometimes taking "symbolic" votes showing) they would have voted otherwise if not for the deferential standard of review. CRC has been recommending changing that standard informally, including in a Structure Review report from 2010, at Stakeholder Groups about CRC in 2010 and 2016, and in a list of CRC priorities in 2011. At the June meeting, CRC celebrated a unanimous vote adopting their Policy Work Group's proposal asking Council to change the ordinance so they can use the simpler "preponderance of the evidence" standard. They reported that the Mayor and several other members of City Council seem open to making such a change.

To create the proposal, CRC asked for community input during May. Former CRC members, individuals, PCW and other organizations wrote in favor. The one negative memo came from the Portland Police Association, which complained they were not given the opportunity to discuss CRC's proposal. (But of course their memo proves otherwise.) They claim the change of standard adds an extra layer of review to officers charged with misconduct. This argument is nonsense since (a) CRC is already part of the "layers" of review, and (b) CRC's recommendation will remain a recommendation. The Chief can still refuse to accept CRC's proposed finding, which could then lead to a final hearing before City Council. Council members experienced CRC's frustration first hand last February when they heard their first appeal in 14 years (PPR #71).

CRC member Neil Simon wrote an op-ed in the July 25 Oregonian touting the proposed change, then had IPR staff send out an email bearing his name (not Chair Kristin Malone or Vice Chair Avalos) urging the community to push for Council to take a vote. Chair Malone felt those actions were within Simon's purview as chair of the Outreach Work Group. The question of whether the Auditor will support such a change remains unanswered.

*-After the hearing, Lt. Tina Jones told CRC Besner was no longer in the Training Division. It is true; he is now assigned to East Precinct.
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**-The vote was 7-1 to attach a "Not Sustained" finding to whether Officer Parker was dishonest in court.
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***- Taylor is also one of the consultants working on forming the new Portland Committee on Community Engaged Policing (see article).
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September, 2018
Also in PPR #75

Portland Copwatch
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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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