Watching the Watchers, A Portland Alliance article

Police accountability in the City of Roses continues to be an unrealized goal. After two failed initiatives, a rejected blue ribbon recommendation and a jury-rigged review board, Portland police continue to escape real oversight by the citizenry they are meant to protect and serve. Can Portlanders expect the Independent Police Review Division to grow into the large shoes needed to do this job?
By Diane Lane

Prior to the resignation of five Citizen Review Committee (CRC) members in August, the policy workgroup of the CRC, the volunteer panel of the Independent Police Review (IPR), drafted its first two police policy recommendations. The IPR ordinance allows the Committee to regularly identify problematic or vague Police Bureau policies while reviewing police misconduct complaints that have been appealed to the citizen body.

The CRC formulated these recommendations under the scrutiny of IPR founder, City Auditor Gary Blackmer, and with the assistance of IPR staff members, including Management Analyst Joseph De Angelis. The Auditor attended all of the workgroup’s meetings and tried to encourage the group to use a complex audit-style research process.

One of the policy issues addressed by the CRC involved the use of profanity by officers. Because the CRC became aware of several citizen complaints regarding profanity by officers, the Committee sought to improve the policy by researching other police departments and available data on the subject. Before the Chief’s recent acceptance of the Committee’s recommendations on this issue, the Bureau’s policy forbade the use of profanity by the police “except where necessary to establish control or to quote another person in reports or in testimony.” Despite that limitation, conversations with Portland police training officials revealed that the Bureau also allowed officers to use profanity to “establish rapport” with citizens whom the police believed might normally engage in such language. Furthermore, the Committee’s review of citizen complaints showed that some officers might have deployed cuss words when they felt frustrated, angry, or annoyed at certain citizens.

The CRC made three suggestions to improve the policy — all of which have been accepted by both former Chief Kroeker and current Chief Foxworth. In September, the Bureau added language to its Courtesy Directive 310.40 that profanity could be used to establish control in “exceptional circumstances where its use may help avoid the deployment of physical or deadly force.”

While examining this issue, the CRC recognized community disdain for officers’ use of profanity and did not advocate its use, but believed it would be practical to channel the use of profanity as a tool in the Bureau’s use of force continuum, which indicates the level of control or force an officer can use to address certain behavior by subjects. For instance, the continuum indicates that impact weapons can be used against aggressive physical resistance whereas verbal control should be used for verbal noncompliance. Nationally, several police departments forbid the use of profanity by officers.

The acceptance of the Committee’s recommendation by the Bureau now requires officers to document their use of profanity in police reports. Former CRC Vice Chair Denise Stone admitted that research did not support police profanity as an effective control tool but stated that she hoped the report requirement might hold officers accountable for their use of profanity rather than allowing them to make excuses for swearing at people. Stone hoped that using profanity as a tool could help officers avoid using physical force.

The CRC also noted that new officers did not receive consistent training in the use of profanity. Noting that profanity complaints are often found to be valid by the Bureau’s Internal Affairs Division, which could adversely impact an officer’s career, the CRC suggested that a training bulletin be issued for all Field Training Officers in order to provide consistent parameters for the appropriate use of profanity. In response, Chief Foxworth will be issuing a memo and establishing training sessions for officers about the updated policy on profanity use.

Portland Mayor Katz wrote a memorandum indicating that she concurred with Chief Foxworth’s acceptance of the CRC recommendations, but added: “Profanity is not an acceptable form of expression in the normal conduct of business by police professionals.”

Auditor Blackmer announced at a recent public meeting that IPR’s Joseph De Angelis performed the majority of the work involved in formulating the recommendations. This statement contradicts an earlier public comment where he stated that not only was the CRC primarily responsible for the policy recommendations, but that if the IPR had been more involved, the work would not have taken so long. The Auditor’s comments are at least consistent with his continual disregard of the role of the citizen component of his citizen police review system. Fortunately, the Chief saluted the CRC in his written response for its help in improving the policy on profanity.

The workgroup’s second focus for issuing policy recommendations refers to the use of civil holds by officers on intoxicated individuals. The Police Bureau’s current policy indicates that officers may either take publicly intoxicated citizens home or take them to a treatment facility such as Hooper Detox. Although such holds are not considered arrests, officers can use force in these situations, including the use of restraints.

Officers must ensure transportation to a treatment center for persons who are either incapacitated or present a danger to themselves or others.
The subject of civil holds arose from a series of complaints in which citizens alleged that officers took them to Hooper Detox in retaliation after the individuals had challenged police actions. In one police misconduct case that was appealed to the CRC, officers took a mother away from the front sidewalk of her home after she began arguing with them about an arrest situation. In another case, the complainant had been observing a police incident a few houses down the street from his own residence. Apparently, Sergeant Harry Jackson decided to take the citizen to Hooper immediately after he asked for Jackson’s identification. In both incidents, the complainants admitted they’d had a few nips, but claimed they were capable of taking care of themselves.

Because of those complaints, it appears that the possibility of police retaliation should have become the heart of the issue, but instead the CRC policy workgroup focused solely on recommending additional funding for CHIERS (Central City Concern-Hooper Inebriate Emergency Response Service), a county-funded service that it is limited to providing transportation to Hooper Detox for incapacitated individuals who cannot stand or walk without help and are a danger to themselves due to an inebriated condition. While a bigger budget would increase the hours that CHIERS vans are available, the implementation of such a policy would not prohibit the police from taking people into Hooper Detox, especially since CHIERS cannot take combative citizens or merely intoxicated individuals.

During a meeting in July at which the entire Committee voted to recommend increased funding for the CHIERS program, former member TJ Browning raised concerns that this recommendation would not address the nature of the complaints regarding the issue. Browning also pointed out that Hooper’s intoxication evaluation was not always reliable since one woman admitted to the center walked with a cane and yet her unsteady gait was cited as a symptom of intoxication.

As a result, the Committee decided to make a second suggestion that the City Attorney and the Police Bureau consider drawing up a custody release form in order to encourage officers to take merely intoxicated persons home. Ideally, another resident would sign the form, thereby relieving the officer of liability if something adverse happened to the inebriated person later on. The Committee made this decision under the mistaken impression that officers could only take an intoxicated person home if there was a caretaker present, even though the policy only indicates that “Members may act in such situations by taking or sending the subject home or to a detoxification center such as the Hooper Memorial Center (Detox).”

It will be interesting to see how Chief Foxworth responds to these two suggestions for changing the Bureau’s policy on civil holds. Although the Chief’s written response was supposed to be issued in early January, as of press time for this publication, it had not been made available to the public.

The Independent Police Review (IPR) released its first and second quarter 2003 report a few months ago describing few accomplishments and improvements to the police oversight system created in 2001. The report indicates that dismissals of citizen complaints alleging police misconduct continue to rise. For instance, IPR declined a total of 115 cases in the first half of 2003 as compared to 48 cases for the first six months of 2002. Looking at those same two time periods, the number of new complaints increased by 48percent, but the amount of cases dismissed by the IPR increased by 140 percent.

One item emphasized in the report involves a lack of timeliness by the Police Bureau’s Internal Affairs Division (IAD) to complete investigations for police misconduct cases referred to it by the IPR. Lengthy investigations pose a continual problem in IAD blamed this time on a decreased amount of police investigators.

IPR Director, Richard Rosenthal, claims that IAD had as few as four and a half investigators in the second quarter with seven in the first quarter of 2003. Rosenthal reports that the smaller number comes from budgetary restraints even though the current PPB budget calls for eight investigators after it was briefly increased in 2000 to allow for ten investigators.

A pertinent point, though, is missing here: Understandably, police officers do not like investigating complaints about other officers. This fact has been supported repeatedly by police review research documents, including reports by the U.S. Civil Rights Commission. In fact, the City Auditor, Gary Blackmer, who created the IPR and strongly believes in leaving misconduct investigations in the hands of the police, wrote in a 1993 audit report that Internal Affairs is “not a desirable assignment in the Bureau. Investigators do not enjoy investigating their peers because it isolates them from their co-workers in a profession already somewhat apart from the general community.”

It seems much more likely that the failure to complete investigations about alleged police misconduct in a timely manner springs from a lack of enthusiasm for the assignment rather than a lack of investigators. To illustrate this point further, let’s compare investigator caseloads of Portland’s IAD to those of San Diego County’s Citizens’ Law Enforcement Review Board (CLERB), an independent review board that has two civilian investigators.

During 2002, IAD had an average of nine investigators with a total of 295 complaints referred to it by IPR. Out of those, IAD decided 92 would receive a full investigation but completed only 34 of those cases that year. That means that nine IAD investigators completed 34 cases at a rate of almost four cases each.

According to CLERB’s 2002 report, its two civilian investigators received a total of 229 complaints and closed 207 of those, including 100 full investigations. That means two investigators completed 50 cases each. Even if you consider the time investigators need in order to dispose of cases by other means such as preliminary investigations before the cases are declined or handled as service complaints, the two civilian investigators in CLERB handled a total of 207 cases in comparison to Portland’s 284 examined by nine investigators.

The IPR, even in its limited capacity, could do something to help this situation by performing its own investigations for at least some of the cases instead of constantly making excuses to not do so. Of course, the perfect solution would be for Portland to gain a truly independent board with impartial civilian investigators empowered with the ability to compel officer testimony - an ability the IPR does not have. Not only would that take the burden off of police investigators, but it would also make the process neutral and fair for all involved parties. In a fair process, when officers are cleared of wrongdoing, those decisions appear much more credible to the public.

The IPR report indicates that all 27 of the citizen complaints alleging police misconduct during the Iraq peace marches this past spring have been declined for investigation because the review system believed that the officers did not violate any of the Bureau’s directives. Interestingly, those complaints were forwarded to the chief’s office for policy review even though one of the IPR’s most important functions, according to IPR founder City Auditor Gary Blackmer, includes assessing police policies.

The Citizen Review Committee (CRC), the volunteer panel of the Independent Police Review (IPR), resumed activity on Dec. 16 when six new members debuted at a public meeting during which they received orientation about the police review system provided primarily by IPR founder, City Auditor Gary Blackmer and IPR Director Richard Rosenthal. The IPR receives complaints about police misconduct and either declines them or otherwise disposes of them, or turns them over to the police Bureau’s

Internal Affairs Division for investigation.

The six new members replaced one member who quit for personal reasons and five others who resigned en masse during a public meeting last August, citing numerous difficulties trying to work with the IPR such as the withdrawal of staff support by Director Rosenthal and Auditor Blackmer whenever the two disagreed with a Committee decision. Since the resignations left the CRC with only three members at the end of the summer and the selection process for spite four months of CRC inactivity, there were only four pending appeals cases.

The new members include: Loren Eriksson, Sid Lezak, Donna Oden-Orr, Lewellyn Robison, Tracy Smith, Irma Valdez, and one alternate member, Joseph Matarazzo. Many of the new memspite four months of CRC inactivity, there were only four pending appeals cases.

The new members include: Loren Eriksson, Sid Lezak, Donna Oden-Orr, Lewellyn Robison, Tracy Smith, Irma Valdez, and one alternate member, Joseph Matarazzo. Many of the new members stressed their community involvement, perhaps in an attempt to alleviate citizen concerns about their government background. For example, Valdez and Lezak are former U.S. attorneys and Oden-Orr is a former Multnomah County Deputy District Attorney.

Throughout the meeting, it appeared that Blackmer and Rosenthal were trying to eliminate the Committee’s already limited powers by repeatedly emphasizing an advisory role for the CRC. Not once did they recommend that the Committee get to know the IPR ordinance, which indicates CRC abilities beyond giving advice. At the end of the meeting, members of the public recommended that the CRC become familiar with its powers immediately and ask for a “civil rights” training such as one given to the original Committee by public defenders and the ACLU to balance the other trainings by the police and IPR staff.

Prior to this meeting, Director Rosenthal consulted with the three original committee members to change the pre-hearing process for appeals cases. CRC pre-hearings primarily determine whether a full hearing will be held or if the appeal will be denied. The former protocol indicated that policy issues or quality of investigation issues identified during pre-hearings could be addressed at a later time by an assigned CRC workgroup, whereas the new procedure indicates that those issues will be handled by IPR. The new process only allows involved parties in the complaint to make a statement at the beginning of a CRC meeting rather than during the pre-hearing process unless directly questioned by the CRC at that time. The new process eliminates the ability of the appellant to address the Committee if it has recommended that the Bureau’s findings be affirmed.

Some of the new members displayed spunkiness and so may not be the rubber-stampers Auditor Blackmer most likely sought when he convinced City Council a few months ago to change the CRC selection process, giving himself final say over the applicants. Indeed, new member, Sid Lezak, stated that during his prosecutor days, he requested and received an investigation on four Portland officers by the Civil Rights Division of the U.S. Justice Department, which revealed significant problems with police procedures.

The orientation included a presentation by Lt. George Babnick of the Bureau’s Internal Affairs Division. Babnick described the IAD process of handling complaints, or at least tried to in between lengthy interruptions by Director Rosenthal. The lieutenant claimed that part of the IAD process includes identifying problematic police policies. According to Babnick, IAD discovered that PPB did not have a policy indicating when an officer should take a report about a stolen vehicle. As a result, the Bureau established a new policy (Directive 630.61) covering that issue.

Rosenthal presented several updates on pending IPR/CRC business, making it crystal clear that he will no longer permit appeals for police misconduct cases declined for investigation, because the IPR does not have the power to order the IAD to do an investigation. While it’s true that the IPR ordinance does not grant the review division the power to compel the police to investigate, it allows the IPR to recommend IAD investigation and does not explicitly forbid the CRC from doing the same during appeals hearings. Established protocols already allow the CRC to recommend further investigation for cases with disputed findings and so it seems appropriate that the Committee could do the same for declined cases, all of which supposedly receive preliminary investigations. Furthermore, since the IPR has a limited ability to do its own investigations, the CRC should be able to recommend a review division investigation for declined cases.

On the bright side, the director claimed that the Bureau is now committed to handling misconduct cases where the complainant has also filed a lawsuit against the City. According to IPR staff member Lauri Stewart, the City Attorney’s office strongly opposed the handling of such cases, illustrating why it is inappropriate for a deputy city attorney to give legal advice to this allegedly independent police oversight body.

During the December meeting, Rosenthal once again promised several overdue reports, including a future aggregate review of discipline and final outcomes for police misconduct cases. A comment made by Lt. Babnick points out the importance of such a report: Despite sustained findings for misconduct cases (which are the most infrequent findings), officers can request hearings before the chief and/or arbitration that can reverse those findings, although, according to Babnick, the vast majority are won by the City. Even if Rosenthal does produce this report, an aggregate examination may not provide sufficient information because some officers claim that Bureau commanders mete out discipline unfairly. In order to determine the veracity of this claim, the report should list each case with a sustained finding separately. The independent police review board in San Francisco lists its sustained cases in this manner, including the nature of the complaint and the final disposition without the names of involved parties.

According to Rosenthal, an IPR report on the Bureau’s Early Warning System (EWS) is now scheduled to come out early this year — years after PIIAC, Portland’s former police review board, asked for such a report. The EWS compiles complaints, tort claims, accidents, commendations, etc., attributed to each officer in an attempt to identify “problem” officers. This system could possibly prevent officer misconduct but only if it’s used appropriately. Ideally, a supervisor review of an officer would be triggered after a certain number of complaints, during which the officer’s performance would be discussed in a non-punitive manner. Consequences for problematic behavior could include counseling, additional training, and/or a transfer.

However, conversations with officers reveal valid concerns about the system including whether or not an officer would have to face a review for complaints with no basis. Certainly, since most police/citizen incidents happen in isolation without unbiased witnesses, all complaints should be treated seriously in order to encourage citizens to come forward with feedback on officer performance. But is it fair to tabulate all complaints against an officer or will that result in an effect opposite to the desired outcome by discouraging officers who already enforce the law in a humane manner? A 2001 study of Early Warning Systems in other cities by police review experts such as Professor Sam Walker mentions a system where only investigated complaints trigger such a review.

Rosenthal’s report should disclose details about Portland’s EWS. It needs to indicate whether or not Bureau commanders use the system and, if so, how it is used, including what happens during a review and what consequences officers face. For instance, if excessive stress and/or burnout cause an officer’s poor performance, does the Bureau provide appropriate stress abatement treatment? In other jurisdictions, police supervisors monitor officers whose performances have been found lacking — does that happen in Portland? Furthermore, the report should indicate how the EWS will be independently monitored. The latter is important because many years ago PIIAC Examiner Lisa Botsko reported that when she first started poking around the Bureau’s Early Warning System, no officer reviews were scheduled until after her initial queries.

The CRC, as a citizen body that somewhat represents Portland’s diverse community, would be the most appropriate entity to monitor the EWS. But with so many indications that IPR leadership intends to continue trying to curtail the Committee’s abilities, it remains to be seen if the CRC will flex what weak muscles it already has much less ask for an additional responsibility.
Subsequent CRC public hearings will be held at least once a month on the third Tuesday of each month at 5:30 p.m. in the Lovejoy Room at City Hall. Check the City’s website for CRC calendar updates: www.portlandonline.com/auditor/IPR.

Diane Lane is a writer, police accountability and civil rights activist, and member of Portland Rights Watch.

Front Page > Issues > 2004 > February

Watching the Watchers