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Auditor Undermines Review Committee Efforts as They Push Back Against Bureau

Mary Hull Caballero, the elected Portland City Auditor, refused to meet with the civilian police oversight body known as the Citizen Review Committee (CRC), which is under her authority, at a meeting in October. In November, she pulled a CRC Work Group report on Use of Deadly Force off the City Council agenda, even though the volunteer group had spent years making the report. Hull Caballero also told CRC she was neutral on the idea of their changing their standard of review (PPR #75), but apparently went to City Council members expressing reservations. Meanwhile, the Committee sent back a use of force appeal related to a protest for more investigation, stood firm on a finding they had asked the Chief to "Sustain," and asked to Sustain a finding that an officer lied. The "Independent" Police Review (IPR), which houses CRC, put out a report on hiring practices in the Bureau with no public or CRC input, but two senior IPR staffers encouraged the group to get back to work auditing the complaint system.

Auditor Stalls Clearer Evaluation of Cases and Council Report, Chair Threatens to Quit

At the November CRC meeting, Chair Kristin Malone reported that the Auditor pulled the Deadly Force Work Group's report from the Council agenda, having previously written to CRC rather than attending a meeting to explain her concerns about changing their standard of review. Malone expressed frustration with trying to do the work the community expects without the support of the elected official overseeing the group, revealing she was considering resigning.

Currently, CRC has to defer to the Bureau's findings if a "reasonable person" could have made the same decision. The Committee is pushing to be able to make their proposed finding based on a preponderance of the evidence, a much clearer and less deferential standard. At the October meeting, the CRC noted Mayor Wheeler's aide Nicole Grant had told them to wait until after the US Department of Justice Agreement has run its course,* though the Mayor himself was enthusiastic about making the change. CRC indicated as many as four of the five Council members might support the move. Hull Caballero's email raised concerns that (a) she thinks the DOJ has to approve a change to the standard (the "reasonable person" standard is in the definitions section of the Agreement), (b) the Portland Police Association opposes it and their contract isn't up until 2020, (c) the change will create "redundancies" in the system and (d) the CRC is supposed to be a review body, not a "fact finder." CRC found themselves caught in an apparent circular problem where Council said they are ok if the Auditor is, while the Auditor originally said they could move ahead if they had the votes.

Judge Michael Simon held a conference hearing on the Agreement the day after CRC's October meeting (p. 1), so Malone was able to testify in federal court about the CRC's efforts and her frustrations. While the Judge made a comment about maybe having to change the Agreement to fix the standard of review, the DOJ has repeatedly said anything which improves the oversight system or makes it stronger is acceptable-- the Agreement is a floor, not a ceiling. The Chair sent the CRC's proposal to the DOJ and to the City Attorney, who also seems to be part of the roadblock, but had not heard back by November 7. IPR Director Constantin Severe indicated at the September meeting that any change has to make the system run faster, implying if CRC sends more cases back for new findings it could slow things down. This is only true if the Bureau refuses to change their minds based on CRC's recommendation.

The long-awaited Use of Deadly Force report was adopted in its final form by CRC in October. David Denecke, a former CRC member who continued chairing the group after his term ended, thought the Council should act to be sure the policy is applied correctly. Apparently, IPR put it on the Council Agenda for November 14 but the Auditor had it pulled about a week beforehand. Hull Caballero argued the Bureau had already made the one change suggested by the report-- to include de-escalation as a key principle in the Use of Force Policy-- so Council did not have to hear the report. Two problems: (a) City Code 3.21.090 [3] explicitly says CRC can present its findings to Council, and (b) the PPB has shot six people and a dog and sent one person to the hospital with mortal injuries so far this year-- so the de-escalation doesn't seem to be working.

Making the Auditor seem hypocritical, she presented her Audit Service Division's audit of PPB training to City Council on September 12 (also see DOJ article, p. 1).

Case 2018-x-0003: CRC Agrees Jaywalking Ticket Was Retaliation Against Woman Watching Cops

At their November meeting, Chief Outlaw came to discuss two of the five findings CRC recommended changing in Case 2018-x-0003 back in August (PPR #75). This case involved a community activist who says when she was video-recording a tank-like vehicle returning to North Precinct in May 2017,** Lt. Leo Besner inappropriately threatened to arrest her for not showing identification so he could cite her for jaywalking. She also said Officer Neil Parker's decision to order the citation was in retaliation for her recording. CRC asked for both of those allegations to be found out of policy. The Chief accepted three other proposed findings regarding Parker failing to give the Appellant a business card (Sustained), and whether Besner used excessive force (Not Sustained, or insufficient evidence) and failed to manage the encounter properly (also Not Sustained).

At first the Chief said she was willing to change the arrest threat from "Exonerated" (in policy) to "Not Sustained," but flip flopped once she was before the committee, saying she thought even if Besner said the Appellant could be "arrested" rather than detained to determine her identity, it would not violate policy. The Chief was fairly cavalier, saying it is easy to switch the language "or whatever," and said she didn't want to argue over "semantics," also noting the interviews took place 10 months after the incident. The CRC made a point about how it matters to civilians if they are told they are being arrested-- which can affect employment-- with Chair Malone adding it is a legal distinction officers should know. Malone pointed to places in the transcript where the witness officers said multiple times Besner used the word "arrest," though she noted they also used the term "detain." Internal Affairs Captain Jeff Bell clarified a person can be detained and checked for mug shots and fingerprints. It probably could have been added that Besner should know better since he has been on the force for 24 years and is a Lieutenant. As the discussion headed to a vote, the Chief promised to ensure officers know the distinction through training efforts. CRC voted 5-4 to reverse their earlier proposal and instead ask for a "Not Sustained with debrief" finding, meaning Besner should at least get talked to about what he (most likely) said. At least one member, Andrea Chiller, voted against the motion because she wanted to Sustain the allegation. The other no votes were Michael Luna and new members Hillary Houck and Jihane Nami.

The original (August) vote at CRC was 5-3 to Sustain the threat allegation.

However, when it came to the question of whether Parker retaliated, CRC pointed out how officers can always find a technical violation of the law to cite someone, and as long as that citation is valid, an officer will never be found out of policy for retaliating. Chiller noted Parker did not write in his initial report about concerns for the Appellant's safety being in the street, with Malone adding many people likely jaywalk on that street next to the police precinct but few are probably cited. The Chief defended Parker, saying he just wanted to talk to the Appellant, and pointed out his report talked about a spike in attacks against police and vandalism against PPB vehicles. But the officer also made notes about the Appellant shaking her head in disgust at the quasi-tank and her recording, so it was not reasonable to ignore that the officer essentially admitted to retaliating. CRC voted 8-1 to forward their Sustained recommendation back to the Bureau, with only Vadim Mozyrsky dissenting. If the Chief still disagrees, the case will go to Council.

The original (August) vote at CRC was 7-1 to Sustain the retaliation allegation; Mozyrsky dissented.

Case 2018-x-0004 Officer Used Excessive Force by Violently Shoving Legal Observer at Protest

At the September meeting, CRC held a Case File Review about whether there was enough information to determine if Officer David Hughes (#50499) used excessive force against National Lawyers Guild (NLG) legal observer Christopher Kuttruff during a protest in 2017. Kuttruff also said Hughes failed to give a warning before using force. Both allegations were "Exonerated," meaning the officer was supposedly within policy. Video of the incident shows Hughes pointing at people to his north, and Kuttruff apparently being bumped westward toward the cop and tripping over a bicycle. Rather than notice Kuttruff's green hat identifying him as a legal observer or the fact he was holding a recording device and not a weapon, Hughes sprang up from the ground and bodily pushed Kuttruff to the pavement.

PCW believes Officer Hughes is the cop who stomped on a soda can and sprayed two of our members at May Day 2017 (PPR #72).

Even though Kuttruff and his attorney Kenneth Kreuscher provided three videos, IPR only used two of them for the investigation. The Appellant says the missing one shows Hughes' facial expressions. Director Severe said he did not want to "deluge" investigators and CRC with too much footage. (Why he couldn't just cut the video down to a few minutes before and after the push is unclear.) The Appellant also sent names of four witnesses to IPR, two of whom were also NLG observers, who were not interviewed. Only three of four other named witnesses were interviewed. Severe said he did not want to use IPR's subpoena powers to compel a civilian to testify.

CRC voted 6-4 to send the case back for more investigation, including adding the missing video and witnesses, and to add a third officer to the investigation. Voting against the motion were Luna, Nami, Mozyrsky and Neil Simon (no relation to the Judge).

TJ Browning acted as Kuttruff's Appeals Process Advisor.

Case 2018-x-0005 Officer Lied to Stop Videographer

The case in which Sergeant Erin Smith improperly threatened a copwatcher with arrest (#2017-x- 0007, PPR #73) was sent back through the system to see whether Smith was untruthful when saying he could arrest the Appellant for recording police. The Police Review Board made a finding of "Not Sustained." A new appeal (#2018-x-0005) was heard at the December meeting. Captain Stephanie Lourenco claimed the "Truthfulness" Directive isn't clear enough to say that Smith's admittedly lying about the Appellant's rights was a violation of policy. However, CRC noted that no reasonable person could think there was a threat that justified lying. The Committee voted 7-0 to change the finding to "Sustained."

Apparently Smith changed his story from his first three Internal Affairs interviews when he was asked whether he was untruthful. It seems better CRC sent this finding back than asking the Chief to start a third investigation into whether Smith lied to investigators.

IPR Cranking Out Reports Without Public Input, But Invites Some CRC Help in Future

IPR has put out a number of policy reviews in the last two years, including one on Crowd Control which never went to CRC for input or review (PPR #75). Their October report on PPB hiring practices was no exception (p. 5). However, at the November meeting, Program Manager Rachel Mortimer suggested CRC could help IPR review the Bureau's policies toward houseless persons. Mortimer also echoed Director Severe's September suggestion for CRC to stop worrying about the Recurring Audit Work Group's unfinished 2012 review of dismissed cases and move on to something else, perhaps closed investigations. It was a rare show of encouragement from IPR staff for CRC to do what they're supposed to.

On the other hand, IPR's Quarterly Reports continue to contain no information whatsoever about CRC. Portland Copwatch (PCW) previously noted the section about CRC in IPR's Annual Reports shrank from an entire chapter to a few paragraphs, yet the ordinance specifically requires IPR to work with CRC on these reports.***

IPR also makes a "Director's Report" to CRC at each monthly meeting, but refuses to explain the nature of cases it is "independently" investigating.**** From September to December, the reports show IPR looking into 15 different incidents, five of which are listed as not involving civilians.

CRC Membership: Diverse but Not Diverse

In November, Michael Luna, who was appointed in 2015, left the group as his term expired. IPR Outreach Coordinator Irene Konev approved Luna sitting on a Police Review Board as a CRC member in late November despite it technically being past the end of his term. This is probably a good thing, as Chair Kristin Malone appears to be the only one of the 11 members who has been regularly attending PRB hearings even though CRC is supposed to rotate through. Most CRC members have to work during hours they are supposed to review files and sit in the hearings.

Luna's replacement, 24 year old Kayla Wade, is a self described queer woman of color. So, while about 30% of Portland residents are over age 50, there are now no CRC members over the age of 45. This also put the CRC back at a total of seven women and four men, welcome but also not reflective of the city's population.

Contact IPR at 503-823-0146

--CRC Vice Chair Candace Avalos polled members about Work Groups, with one major agreement being they want to find a way to deliberate using online services. They say it's just too hard for them to find a meeting time and place they can share with the public. PCW will continue to push for all Work Group meetings and deliberations to include the community. The Crowd Control Work Group, which Avalos chairs, did not meet between April and December despite injuries caused by flashbangs in August (PPR #75) and the City's efforts to curtail protest actions through law (p. 1). CRC agreed to change the Deadly Force Work Group into a Use of Force Work Group; PCW cautioned them not to shy away from talking about force in the Crowd Work Group. The Recurring Audit Group held first meeting in years on December 19.

--Three CRC members met with the new Portland Committee on Community Engaged Policing (also p. 1), and pledged to share information about policy issues and to meet with them monthly.

**-In PPR #75 we said the incident happened in January 2017, we regret the error.
Back to text.

***-City Code 3.21.170 [D].
Back to text.

****-IPR still needs the PPB's Internal Affairs unit to compel officer testimony, so it is still dependent on the police.
Back to text.

January, 2019
Also in PPR #76

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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