POLICE REVIEW DIVISION'S TORT CLAIM REPORT HIGHLIGHTS
CRUCIAL LOOPHOLE
But Proposes A Solution Which Creates Other Problems
Analysis by Portland Copwatch, September 20, 2004
Report located at
http://www.portlandonline.com/auditor/index.cfm?&a=54122
The Independent Police Review Division (IPR)'s report on the City of Portland's handling of tort
claims highlights a crucial loophole in holding police accountable: When a civilian sues the City for
police misconduct, the officers do not necessarily face discipline, even if the claim is upheld in
court. The 31-page report, released earlier this month, heavily suggests that such cases should be
reviewed for possible violation of Police Bureau policies, which could lead to officer discipline.
However, its recommendations will likely limit such reviews, rather than expand them.
Currently, "City Ordinance does not allow the IPR to investigate allegations of misconduct raised in
tort claims unless the complainant also files a citizen complaint" (p. 3).
The report's two recommendations are to revise that Ordinance, which created the IPR.
1) The first recommendation puts the power of deciding how to handle tort claims into the hands of
the IPR Director (p. 23). It may be that Richard Rosenthal, the current Director, thinks that because
he is licensed to practice law in Oregon he is qualified to make decisions regarding possible legal
liabilities for the City which may be contrary to what the City sees as its best interests. However,
Rosenthal's history at the IPR, including his efforts to minimize many complaints by making them
"service complaints" instead of investigating them, sidelining the Citizen Review Committee (CRC),
and refusing to allow important cases to be heard (such as the Jose Mejia Poot beating case), does
not bode well for this unilateral solution. (It also ignores what might happen if a future IPR
Director is not also a lawyer.)
Instead of this open-ended change, the new code should explicitly allow the IPR, in conjunction
with the CRC, to hire an outside attorney for any matter which may put the City Attorney's office in
a conflict of interest. This would allow both for these cases of tort claim/lawsuits to be
independently evaluated and for any other conflict between the IPR and the City, or the Citizens and
the IPR, to have an outside counsel. It should also explicitly require IPR/IAD investigation of
incidents alleged in tort claims and lawsuits.
The specific proposed change to the "Intake" section would replace "The Director _shall not
investigate_ complaints and appeals involving matters currently in litigation [or] where a tort claim
has been filed" with "The Director _shall develop procedures for handling_ complaints and appeals
involving matters currently in litigation or where a notice of tort claim has been filed." Developing
procedures for handling such complaints does not guarantee their review. Furthermore, since the
original language prohibits the _Director_ from investigating such complaints, it does not prohibit
the IAD's review of these cases or citizen appeals. Depending on who the Director is, new protocols
could wipe out all of these possibilities at the stroke of a pen with no review from Council or the
public.
2) The second recommendation prohibits the Director from investigating, or even initiating an
investigation, of cases in litigation or where a tort claim has been filed (pp. 24-25).
The introduction to this recommendation claims that "as long as the IPR has the authority to review,
consult, and report on IAD assignment decisions, there appears to be no need for the IPR to have
the authority to conduct an independent investigation of a complaint while litigation is pending."
This runs contrary to one underlying premise of the report, which Portland Copwatch has noted for
years: That officer discipline becomes less likely as litigation takes years to complete without any
internal review, and discipline rarely happens even after the City pays out thousands of dollars for
the incident. The report's summary claims that it "recommends that City Code be changed to require
all tort claims alleging officer misconduct be referred to the IPR/IAD complaint process" (p. 3).
These recommendations do not support this important idea.
It is rare for Portland Copwatch to agree so much with the IPR on anything. Their analysis that
"Investigations conducted by Risk Management, the Police Liability Management Section, and the
City Attorney's office are focused on the City's potential liability" (p. 15) is absolutely crucial in
reviewing this issue. They also rightly note that although conducting internal review of cases in
litigation may cost the City more in the short term, it has the potential to save more money and
reduce misconduct in the long term (p. 9).
It is surprising that Mayor Katz and Chief Foxworth both reacted to the report by warning Auditor
Gary Blackmer (who oversees the IPR) and the Director that their proposal would put the City at
risk. A more careful reading of the actual proposal shows that the code changes could have the
effect of prohibiting review of potentially serious cases if implemented as written--the opposite of
the report's stated intent.
For more information contact Portland Copwatch at 503-236-3065.