People's Police Report
Shootings & deaths
REVIEW BOARD OVERHAULED
The "Independent Police Review Division" (IPR), Auditor Gary Blackmer's ill-equipped replacement for Portland's police review board, was adopted unanimously by City Council on June 6. Although the IPR does include some potentially useful new elements, its so-called "independent" civilian investigators will not have the power to compel officers to testify during inquiries. That power is left to the Police Bureau's Internal Affairs Division (IAD), who, accord-ing to the ordinance creating the IPR, will be sitting in on any interview conducted by the civilians, and who "may repeat the question or order the officer to answer it."
The key word here is "may." Even though Commissioner Dan Saltzman struck a last-minute bargain allowing the IPR investigators to ask questions directly to the officers without relaying them through IAD, the officer is under no obligation to answer. Thus, the IPR is like a car with no engine--it looks like an independent review board, but it cannot act like one.
We are not alone in our concerns. The April Portland Alliance declared "Auditor police proposal giant step backwards"; the Mercury reported "Concern Mounts That Police Oversight Committee Has No Balls" on May 31; the June 7 Oregonian stated that "Council OKs police review system amid concerns"; and the Portland Tribune's May 29 cartoon showed citizens, waiting with questions in hand outside a door labelled "Division of 'Independent' Police Review," peering through a mail slot labelled "Citizens: Ask question here" and a sign over the keyhole reading "Look thru here".
Blackmer took the time to write a rebuttal to the cartoonist, defending the citizens' involvement in the IPR. He listed six powers he says he's adding to the Citizen body, all but two of which were powers already allowed to the old review board, PIIAC. The two new powers are for the citizens to appoint their own replacements (not a model democratic process), and to deny complainants the ability to appeal cases to City Council (which is also distressing).
Much to their credit--and under the heat of the spotlight created by the death of José Santos Mejía Poot (see article)--City Council directed Blackmer to add the review of cases of police shootings and deaths in custody to his somewhat "emasculated" board. Blackmer reluctantly agreed, though he has put off drafting the revised City Code until December 31st (see "Blackbeard", below).
Blackmer also reduced the number of citizens on the board from 13 to 9, despite the fact that neither the police-friendly "Minority Report" of the Mayor's work group on PIIAC nor the independent- review-board-promoting "Majority Report" recommended any changes to the structure of the citizen group (see PPRs #21-23). It was clear from Blackmer's rambling testimony before Council that there were no solid, articulable, or researched reasons to reduce the number of Citizens.
Compounding this problem is that the PIIAC selection process allowed Portland's seven neighborhood coalitions and five City Council Members to appoint one representative each (the Mayor, as Commissioner of Police, had two). The Council, sensing a loss of input into the process, requested that they still be able to nominate members to the board. The resulting ordinance allows that Council's picks "may be given preference" over other applicants. Blackmer told the Citizen Advisors on June 18 that they should feel free to reject Council's nominees. Whether the geographic, ethnic, and economic diversity of the current board will continue remains to be seen.
Another concern with the IPR is that the Citizens have been stripped of the ability to return to detectives (IAD or IPR) the cases that they feel have not been fully investigated.
Last, even though City Council was most concerned about changing the PIIAC system because its vote on whether misconduct had occurred was only advisory, it is not clear that the Chief must now accept their finding as final. Section 3.21.160 A.2 states that the City Council will "decide what the finding is" and "inform the Chief of the Council's decision," but does not explicitly say that the Chief cannot overturn the Council. City Attorney Jeff Rogers declared at the June 6 hearing, "that language is sufficient," and disappeared before anyone could challenge him.
There are many, many reasons to be concerned about this new system.
A good way to explain the system is to walk a citizen through a hypothetical case, using the City Code as a guide. First, the civilian calls the IPR office or overcomes the intimidating, column-lined grandeur of City Hall to file a complaint in person. Then, if they don't want to be interviewed over the phone or at City Hall, they must set up an intake appointment.
If the IPR staff decides the case is worthy, the person has to sign a sworn statement about the complaint. Then the complainant will be interviewed, in most cases by Internal Affairs. But sometimes, the IPR will have a staff person sit in. In rare cases, an IPR investigator will do the interview themselves.
Next, the IAD will interview the police officer and the witnesses. In some cases, the IPR will sit in. In the rare cases, the IPR will ask the questions to the officer, who is not bound to answer them unless the IAD detective orders them to do so.
The Police Bureau and the IPR staff will decide on a finding based on the investigation. The citizen can appeal the finding to the Citizen Review Committee (CRC) at a public hearing. If the CRC agrees to change the finding, City Council makes the final determination after another hearing. If not, the case is over.
Sad to say, the old system, in which IAD conducted all the investigations, was easier to understand and had fewer variables.
We hope that one day, Council will actually read the Majority Report, which calls for the Review Board to have the powers to recommend discipline and to compel officers to testify as a condition of employment. Then, officers cannot plead the 5th Amendment to avoid self-incrimination; instead, the "Garrity Rule" will allow them to testify without fear of their statements being used in criminal prosecution.
Portland Police Association President--er, Attorney--Will Aitchison (see letters article) gravely warned City Council that granting such immunity in Oregon would mean that police could never be prosecuted for any crime discovered, even if information was gathered outside the IPR process. Why the attorney for the police "union" would worry that we can't prosecute police is still a mystery--unless it was just a ruse to keep Council from voting for a fully independent board.
Clearly, since officers were compelled to testify in the old system and on occasion officers have been prosecuted or investigated for possible crimes, there is already a process in place to halt a citizen complaint investigation and begin a criminal one.
Meanwhile, the Police Accountability Campaign (PAC-2002) has gathered over 15,000 signatures for an intiative to create an independent board. They need to get 29,000 valid signatures by January to put the initiative on the ballot. Since Council agreed to review the IPR's progress in "about a year," it would not be surprising if the public runs to the polls in May, 2002 to vote for a truly independent board.
For info check our website at www.portlandcopwatch.org or call 503-236-3065. For info on the PAC-2002 initiative, call 503-287-2255 or visit www.pac-2002.org. The IPR number is 503-823- 0146, and the Auditor's office is at 503-823-4078.
We call the new board the "DPR"--Dependent Review Board, or "Diaper" for short. Thus we will be calling for Auditor Blackmer to change the Diaper, since it is all wet and stinky.
At PPR deadline, the Auditor had announced that he plans to transfer the intake staff from IAD to the IPR--two retired Police Bureau Sergeants!
The City Code creating the IPR was written by Auditor Gary Blackmer along with City Attorney Jeff Rogers. Rogers apparently slid in two special clauses helping bar certain items from the Citizen board and the general public.
First, any materials considered to be "attorney-client privileged" information will be withheld from the IPR at the discretion of the City Attorney. Historically, PIIAC once released information on a case which ended up costing the City in a lawsuit. Subsequently, the City withheld the files on Captain Mike Garvey, who was investigated for allegedly using male prostitutes, and has not released them to PIIAC to this day. Ironically, the City Attorney would also represent the IPR in any lawsuit to get hold of such information, since the IPR is an official arm of the City of Portland.
Second, the IPR is required by law to check with the Police Bureau before releasing any information which is already considered public under Oregon's Public Records Law. The City claims that the reason for this is that any documents regarding police are still owned by the police, undermining the claim that the IPR is independent.
Hopes for an improved Police Bureau dwindled when Chief Kroeker refused to accept Auditor Gary Blackmer's direction about police record-keeping. Blackmer requested that the police obey Oregon law, retaining records of sustained Internal Affairs complaints for the standard 75-year period, rather than expunging such records after five years, as is current practice. Kroeker refused, claimng that "a clean record...is a powerful inducement to good conduct" (Oregonian, July 2).
For those who have followed Kroeker's tenure as Portland's Police Chief, this decision was not a surprise. But his latest act of insubordination is especially disheartening, as it came less than 24 hours after the legislation establishing the IPR became effective.
Though the IPR is still not operational, it seems likely that this incident foreshadows the relationship between the review board and the police.
Auditor Gary Blackmer is proud to let you know that his office is independently elected, so he does not have to answer to City Council. Think of the benefits: As Auditor, he not only gets to snoop through city agencies' records but he also gets to run the newly revised citizen police review board. He also gets to do nifty things like include really big inaccuracies in his reports! For instance, Blackmer claimed in his March "study" of review boards, that San Francisco's civilian board, which investigates over 1000 complaints against police annually and has effected several changes to police policy, hasn't resolved its scope and authority after 20 years!
Ol' "Blackbeard" also went to three major cities. In San Francisco and Minneapolis, he talked to three people famous for their dislike of the independent review boards who, surprisingly, said the boards suck. Blackbeard used these opinions to state that all citizens think independent review boards stink. So why bother creating a truly independent one that would piss off the police?
As for objectivity, Blackbeard headed to these cities with his mind already made up about what kind of review board he wanted. And his dream review board did not include even the tiniest peek at deadly force cases. He proved this when he told City Council he would need time to study how other cities handle shootings and deaths in custody cases--even though San Jose (the third city he visited) reviews those cases and San Francisco conducts independent investigations into them!
The Auditor also gets to evaluate his own agency! That's right, the Auditor has proposed that he take charge of conducting an evaluation of the IPR to see whether it's working. So, the City Auditor gets to audit the audit board the Auditor created!
Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.