Front Page > Issues > 2003 > June

Civilian Review Committee rebuffs Director Rosenthal

The Civilian Review Committee (CRC) of the Independent Police Review Division is determined to hear an appeal regarding the police beating (they are prohibited from reviewing the shooting) of Jose Santos Victor Mejia Poot, and City Hall is trying to stop them. In April, the Civilian Review Committee accepted a community request on behalf of a third party, Marta Guembes, to reconsider their decline to hear an appeal of the original police investigation in which all officers were exonerated. Now, the Director of the office of Independent Police Review (IPR), Richard Rosenthal, is advising them to retract their vote.
On May 6 Rosenthal announced that he will deny them information he usually provides. In addition, Portland Police Bureau Internal Affairs Captain Darrell Schenck is refusing the CRC access to the internal affairs investigation file that provided the basis for the initial CRC decision to decline the appeal.

This stonewalling is based on an interpretation of CRC protocol, not on law explicated in the city ordinance establishing the IPR. The City Attorney has been using protocol to its advantage and beyond the purview of the ordinance--discouraging the CRC from hearing cases and appeals and interpreting their powers as more limited than they are. The CRC is currently reviewing all protocol and reconsidering how to make them more in accordance with the ordinance. Protocol can be changed by CRC vote wherease City Ordinance can be altered only by City Council vote.

In April, Deputy City Attorney Linly Rees, stated her opinion that, “I think looking at the appeal is beyond CRC jurisdiction,” citing that there is no language providing that a third party may appeal a CRC decision. CRC protocol (internal processes and procedure, not law) is not specific about who may file an appeal. That protocol, written by Director Rosenthal, only defines that an appeal by a third party may be declined if parties involved declined to file a complaint or refuse to participate in the investigation. However, that language seems to be in conflict with the ordinance. City ordinance makes no limits on who may file a complaint.

Director Rosenthal and City Auditor Gary Blackmer have also instructed the CRC that the appeal may not be heard for matters of timeliness. The CRC has objected that this does no reflect the intent of the ordinance and fails to take into consideration that they “are not dealing with professional complainants,” as CRC Member TJ Browning elucidated.

“In my opinion, rejecting the appeal would be a mistake,” commented Diane Lane, who has been following police review issues for 3 years and is a member of pdxCOPWATCH. “Because this third party protocol seems to be in conflict with the ordinance that established the IPR, it should not be honored and any decision made on the basis of it should be reconsidered. Protocol doesn’t have the same weight as an ordinance. The CRC can vote any time to change their protocols and make them in accordance with the ordinance, but they can’t vote any changes to the ordinance,” Lane added

Blackmer warned the CRC “you could incur liability over [hearing this appeal].” Reportedly, Blackmer reiterated these sentiments in a memo to CRC members which was carbon-copied to City Council and to Chief Kroeker on April 18. Blackmer seems to imply that the Portland Police Association could sue CRC members individually. He added verbally, “You are agents of the city, sworn in. As such, you are expected to uphold city legislation and statutes.” Since the CRC is overstepping only protocol and not law, it is unclear whether this statement is a threat or an exaggeration.

Later this month the CRC will review all of their protocols and the ordinance at a public forum. So far, the committee has expressed strong reservations about three aspects of their protocols: discretion to hear appeals, procedure if the bureau rejects their decisions, and process to appoint new CRC members. They also question Rosenthal and Blackmers’ tendency to influence their processes and deliberations. For example, in April, Blackmer tried to deflect public demand that the CRC review the Poot case by proposing another community meeting and await the shooting expert’s professional review. CRC member Denise Stone appropriately conveyed community sentiment, responding, “If we’re going to really come up with solutions, we need to be able to review this case and identify what went wrong.”

Regarding discretion to hear an appeal, CRC protocol currently requires that it be done within 30 days and gives the Director sole power to determine whether to hear the appeal. In the interest of a more open process, CRC member Mia Butzbaugh proposed language allowing two CRC members assigned to the case to participate in determining whether an appeal has merit. Rosenthal expressed great discomfort at the possibility of his judgment being overruled and opposed a motion that decisions be made by majority or consensus. CRC Chair Hector Lopez responded to Rosenthal, “I see your actions as an isolation of authority. I’d really like to see us be more considerate and attentive to the community. This ordinance has a lot about reaching out to the community and yet I have the sense that as we outline our procedures, we are isolating ourselves from the community.”

Issues of CRC independence arose sharply in Merrick Bonneau’s case (mestaken identity and false arrest) when Chief Kroeker rejected CRC recommendations after they sustained two of Bonneau’s complaints. Citing protocol 02.03, Rosenthal required the CRC to participate in a conference committee with Internal Affairs about the CRC’s findings. Butzbaugh objected that this protocol conflicts with ordinance language which allows for an immediate hearing before City Council. Nonetheless, the CRC was obliged to meet with IAD, at which time IAD tried to persuade the CRC to change their vote on Bonneau’s case. The CRC refused, and the case will now go before City Council for a hearing sometime in June. This will be the first City Council hearing since CRC was formed a year and a half ago. The CRC will consider voting to change this protocol at their retreat in June.

Members have objected that the protocol for appointing CRC members is inconsistent with the ordinance specification that the CRC have sole power to nominate members. Members raised the question of whether they have to work with the Director. Members object to the fact that Director Rosenthal sat in on interviews of prospective CRC members during the last appointment cycle despite the fact that CRC members were not allowed to. This fall five CRC members terms will become vacant. Stone is drafting revised protocol to change this process; it would take effect for this coming selection process.

Regarding the Mejia Poot case, though they may have to circumvent the city attorney, the director of the IPR and the internal affairs department of the Portland Police Bureau, the CRC is proceeding with their decision to hear the appeal and has assigned members Stone and Butzbaugh to review the case. Furthermore, the CRC is considering retaining an independent attorney in order to convince or compel the IPR and IAD to share information. In the meantime, Stone and Butzbaugh will gather available public record information in order to conduct the review and as part of their plan to do outreach to the Latino community the CRC will do a presentation about their work at the PSU Mecha Police Accountability FOrum June 2, 2-4 PM, at Portland State University.