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With New Oversight System on Horizon, Current Board Continues Work
Auditor's Actions Could Undermine Smooth Transition

Similar to the questions as to how (and whether) the transfer of power of the US President will happen in January, people in Portland are questioning how the civilian-run "Independent" Police Review (IPR) and its Citizen Review Committee (CRC) will transfer their police oversight duties to a new system authorized by voters on Nov. 3. The passage of Measure 26-217 puts into the City Charter a framework for a review system which, unlike IPR, will have community members hiring its Director, along with other powers which may or may not be subject to legal challenges. Auditor Mary Hull Caballero, whose office houses IPR, opposed the measure, and took some actions that could lead both the current and new systems to fail. Meanwhile, the CRC has continued to hold appeal hearings on misconduct cases and hold Work Group meetings on Crowd Control issues. One problem they currently face is the Auditor's delay in appointing new members, which should have happened immediately after three people quit (two out of frustration) in September.

New Oversight System Likely Not in Place Until Early 2022

Commissioner Jo Ann Hardesty, author of the measure (PPR #81), has said many times that the new system will take between 18 months and two years to implement. The measure passed with approximately 82% of the vote. Next, City Council will create a commission to propose guidelines for the new Board, after which Council must approve an ordinance and select Board members. After that, the Board will hire the Director, who will in turn hire investigative and administrative staff. Only then can the new system begin work.

The Portland Police Association (PPA, the police officers' "union"), filed a grievance days after the measure passed, claiming the City should have negotiated the terms of the disciplinary system before sending it to voters. Since the Charter amendment calls for the system to follow collective bargaining agreements and existing laws, it's more likely the PPA's contract negotiations (slated to start in January--see article this issue) and state and federal laws could hinder the new Board. For example, the current contract prohibits civilian investigation into deadly force cases, and there are laws which limit the authority of people not in the police officer "chain of command" from imposing discipline, two powers assigned to the system in the ballot measure.

Hull Caballero's intransigence is not helping, either. While she agreed to move forward with appointing new CRC members once the election was over, she also delayed or declined to act on:

--extending the contract for annual reviews of deadly force cases, outlined in the current City Code (see article in this issue),

--hiring new staff to replace people leaving IPR (some of whom are leaving due to the uncertainty of the transition), or

--allowing current staff to help plan for the new system, under the thin pretext that her office will have to audit the new Board, so helping set it up is a conflict of interest.

This last item was revealed at CRC's November meeting, where Hardesty policy staffer Derek Bradley talked about the new Board. He told CRC this isn't about blaming people involved in the current setup, but to create a system that's not fundamentally based on police investigating police. At the December meeting, IPR Director Ross Caldwell said the staff can answer questions if people ask them, they just will not directly participate in the design of the institution replacing them.

Case 2020-x-0002: Did Internal Affairs Discriminate Against Whistleblower Cop Who Filed Complaints?

It's been rare for officers to file appeals of misconduct complaints to be heard by the Citizen Review Committee. At the October meeting, for the first time an officer appealed a finding in a case filed against other officers. Normally, this would not have been allowed by policy, but Sgt. Liana Reyna had retired at the time she filed the complaint, so was technically a community member. She says the Commander and Captain of Internal Affairs mishandled previous complaints of hers.

In the early 2000s, Reyna blew the whistle on sexualized hazing by the PPB's Special Emergency Reaction Team (PPR #25). She was the Sergeant who proposed walking away from the confrontation with Aaron Campbell which led to his death, but got called off the front lines to brief commanders who showed up (PPR #52). Reyna is also a Latina and an LGBTQ person whose former spouse, also a female officer, is part of the underlying complaints involved.

The whole case is confusing, but in short, Reyna accused both Commander Jeff Bell and Captain Cliff Bacigalupi of not following procedures properly (allegations 1 & 3) and of discrimination and retaliation (allegations 2&4). The initial findings were "Exonerated" (in policy) for allegations 1& 3 and "Unfounded" (the facts show the incident did not occur as alleged) on 2&4.

There was a lot of tension in the meeting as Caldwell, Deputy City Attorney Fallon Niedrist, Assistant Chief Jami Resch and Lt. Chris Gjovik tried to keep a tight lid on Reyna's testimony so they would not have to discuss the content of her other complaints.

Key points include that PPA President Daryl Turner allegedly told Reyna not to pursue untruthfulness complaints against her former spouse, Officer Sara Fox, or she (Reyna) would face retaliation. The City claims that since Officer Turner was acting as a private citizen, not a cop, they could not compel him to testify in this case. It seems they could have charged him with coercion for telling Reyna to back off. Reyna said she was investigated for off-duty conduct while Fox, who at one point began dating a male officer, was not.

People involved in the hearing revealed questions asked by IPR and Internal Affairs. Interviewers asked the Commander and Captain whether they discriminated against Reyna, and when the answer was no, dropped that line of inquiry. Also, other officers were asked whether they thought Reyna would have behaved differently if her ex-spouse was dating another woman rather than a man, which does not seem like the kind of question that would have been asked about a straight person's behavior.

The City Attorney did acknowledge that Reyna fit the category of "protected class" in four ways: her gender, her race, her sexual orientation and her whistleblower status. CRC member Andrea Chiller wondered why the investigators didn't ask the IA supervisors whether they knew about Reyna's whistleblowing.

A/C Resch said Reyna's allegation about perjury would be handled as a criminal offense, but Appeals Process Advisor TJ Browning pointed to a Bureau policy on truthfulness which has a lower threshold than the law and should have been looked into.

This discussion led CRC to recommend more investigation as to why Commander Bell dismissed that allegation. That proposal passed on a 4-1 vote, with Chiller wanting to change the finding instead. Both allegations about discrimination were proposed to be changed from Unfounded to "Not Sustained" (insufficient evidence) with a Debrief, also on 4-1 votes with Chiller dissenting. The only finding that went unchallenged was whether Bacigalupi failed to notify Reyna of the outcome of her previous complaint; CRC agreed to Exonerate the Captain because policy at the time required notification for civilians' complaints, not officers' (that has since been changed). That decision also passed by a 4-1 vote, with Julie Falk dissenting due to confusing language in the allegation. The hearing lasted roughly three and a half hours.

Case 2020-x-0001: No Changes in Complaint by Man Claiming Injury from Handcuffing

At the September meeting, case 2020-x-0001 came back to the CRC after they had sent it to Internal Affairs for more investigation in January (PPR #80). Capt. Bacigalupi revealed the Appellant's name to be Mr. Davis. Davis said injuries to his hands were the result of a violent arrest made by seventeen officers in 2016. At the new hearing, it came out that the underlying incident involved Davis being accused of carjacking and home invasion, where he "barricaded' himself in a shed with a handgun. Regardless, CRC previously sent the case back in part because the Bureau was unable to identify which officer had effected the arrest, and to get more medical records.

The Appellant, who appeared from jail by phone in January, was only invited to send a written statement for this hearing; IPR staff said he did not send anything. The officers say Davis claimed no injury at the time he was arrested, and that he only got X-rayed nine months afterward. CRC noted that the X-rays were not included in the case file. It was stated the non-medical volunteers would not understand the X-rays. It also came up that the police thought Davis was "very high"-- but he has diabetes, and his behavior may have been related to a medical issue.

Commander Art Nakamura claimed Davis was taken into custody without incident or use of force, but based that assessment on the assumption that officers followed proper procedures. Because so much information was missing, CRC members did not want to keep the original Unfounded finding and voted to change it to Not Sustained on a 4-2 vote, with members Jihan Nami and Vadim Mozyrsky saying that a reasonable person could have agreed with the original finding.

At the October meeting, IPR said the Chief accepted the changed finding. It's not clear how this case is being documented since nobody knows to which officer the allegation applies.

Membership on CRC Declines

In early 2017, the City dissolved the Community Oversight Advisory Board, which was set up to oversee the US Dept. of Justice Settlement Agreement, after deliberately failing to fill empty seats vacated by resignations and term limits (PPR #71). It is possible that the Auditor and/or City Council could similarly terminate the CRC's activities unless IPR follows through on nominating people who applied/reapplied for memberships back in the summer. Chair Avalos read resignation letters from members Hillary Houck and Adam Green at the September meeting. Houck expressed dismay at the Mayor's attitude when he voted against the CRC's recommendation on a case that went to Council-- in May 2019 (PPR #78). Green was frustrated that nothing CRC does can lead to real change as demanded by protestors on the streets. Separately, Carol Johnson resigned because she moved to Seattle. These resignations follow those of former Chair Kristin Malone and member Daniel Schwartz about a year ago (PPR #80).

The Auditor has made no secret of her indifference about whether or not CRC continues to function. She refused several invitations to attend meetings, did not support their efforts to stop requiring the Committee to defer to police findings, and, several years ago, tried to push their hearings behind closed doors (PPR #69). Hull Caballero should stand up for IPR and CRC continuing to function right up until the new board is ready to go, which is what happened when the previous system (the Police Internal Investigations Auditing Committee) made way for IPR/CRC in 2001 (PPR #24).

CRC Crowd Control Work Group Receives Feedback About Protests

The CRC's Crowd Control Work Group put out a survey in September asking for input from people who had been attending racial justice/police accountability protests since May. They initially received a few hundred responses mostly from people who'd been "on the ground." Apparently a right wing blogger then promoted the survey and CRC got over 800 more responses, many of which were from people outside Portland and/or who had not been at the protests, saying things like "the protestors should be shot" and more generally that the PPB was not using enough force. As of December, the Work Group was still sorting through the data, and working with other advisory groups on coordinating recommendations about the Bureau's response to protests.

Also at IPR/CRC:

--At the November meeting, CRC discussed the difficulty of preparing for and attending Police Review Board hearings on whether officers violated policy in deadly force cases. These longstanding concerns haven't been resolved, even with most Bureau members working remotely under the pandemic. Mozyrsky, the most conservative member of CRC, has been attending most PRB hearings, one of the most important places for CRC's diverse voices.

--Data on protest cases is now posted and updated regularly on http://portlandoregon.gov/ipr. In early October, IPR announced they were opening an investigation into the several incidents of brutality by "Officer 67" (see article in this issue).

--The Outreach/Policy and Recurring Audit Work Groups have not met for months.

For more information contact IPR at 503-823-0146.

January, 2021
Also in PPR #82

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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