CITIZEN REVIEW COMMITTEE COMES INTO ITS OWN
The first challenge came in May, when the CRC voted to send a case regarding a protestor who was roughed up in early 2003 back to the Internal Affairs Division (IAD) for more investigation (see PPR #32). The second time was in June, when they challenged an "Exonerated" finding on the use of a Taser, which the Bureau agreed to change to "Insufficient Evidence."
Meanwhile, Richard Rosenthal, the Director of the Independent Police Review Division (IPR), acted to undermine another decision the CRC made in April to change a finding in an officer's appeal. Rosenthal and City Auditor Gary Blackmer, who oversee the CRC, continued to try limiting both the activities of the CRC and public involvement in the process.
Case #2004-x-003: "I was very surprised that some of my colleagues weren't shocked by the excessive force"
As reported last issue, Bill Ellis, who was arrested in March, 2003 at an anti-war protest on a city sidewalk, claims police used excessive force when they (allegation #1) threw him to the ground and hit him in the head with a pepper spray can, and (#2) held him by the hair and pepper sprayed him in the face while he was handcuffed. Both of those allegations were declared "Unfounded" by the Bureau (meaning they did not happen as alleged). Ellis also said the police (#3) used excessive force when they threw him into the street and held his face against the asphalt, and (#4) arrested him for no reason.
His case (#2004-x-003) came to the CRC for a full hearing in May. Ellis' lawyer Steve Sherlag showed video of the incident, in which a witness (another lawyer, who testified at the hearing) shouts "Oh, my god, they hit him on the head with that pepper spray canister!"
IAD Captain Schenck admitted that the officer may have hit the appellant in the head accidentally while shaking the can--in which case "Unfounded" is the wrong finding on allegation #1.
Schenck also stated that officers grabbed Ellis by the hair to "stabilize" his head while pepper spray was used, claiming this is an approved hold (allegation #2). He said pepper spray is supposed to be used from four feet away but that it is "permissible" to spray at one inch distance to avoid back splatter. All of the officers appeared to be wearing tight-fitting goggles, which would diminish the fear of their being hit by the spray.
IAD investigator Sgt. Mary Donner explained that Ellis was on his knees throughout efforts to handcuff him--not the "preferred" position to cuff. When he was taken to the ground to get him in the prone (preferred) position, his "butt" was still in the air, justifying the use of pepper spray, she said.
Schenck said the takedown, in which an officer swung Ellis around by the arm and tossed him toward a crowd of other officers, was consistent with policy. Attorney Sherlag replayed a moment on the video when an officer appeared to come down with his full body weight on Ellis' neck and head area. Captain Schenck said putting a knee on a shoulder or the neck is taught, adding "it's not always delicate." The CRC questioned the force with which Ellis was thrown to the ground, and asked for further review of this allegation (#3).
Schenck claimed buses were backed up because Ellis was "leaning out in the street." He explained that "probable cause" means it's more likely than not that a violation occurred, in this case a person causing "inconvenience, annoyance or alarm," could be guilty of disorderly conduct. The Bureau declined to investigate Allegation #4, that the arrest was not reasonable. Attorney Sherlag pointed out that no buses were visible in the videos and Ellis was holding his sign while standing on the sidewalk.
At least four of the CRC members questioned one officer's initial aggressive contact with the appellant. Also, according to Sherlag, police can be heard saying "he's the leader" just before Ellis is singled out for arrest.
CRC member Irma Valdez stated "When I saw this video, I was very surprised that some of my colleagues weren't shocked by the excessive force in it," adding"this has to stop in Portland." She believes police should be held to a higher standard. Valdez qualified her statements, clarifying that she speaks as a former US Attorney from Washington, DC who prosecuted many protestors.
CRC voted 6-1 to send this case back to IAD for more investigation, including the previously declined allegations regarding the take down and the arrest (#3 and 4). At the July meeting, the Director reported that IAD had agreed to conduct the investigation.
Case 2004-x-004: "Robbed of safety in our own home"
In case 2004-x-004, Andria Jones, complained that Officer Paul Ware (#37137) entered her house without announcing himself, inappropriately used a Taser on her young son, and told the son it was his own fault he was "Tased."
The 5-foot-8-inch African American youth was in his living room locking up after his older brother had been assaulted by a 6-foot-4-inch 400 pound Caucasian male several blocks away. Officer Ware had been called to the scene of the assault. A witness told the officer where both the suspect and victim had gone, and Ware chose to go to the victim's house. The officer entered when he heard shouting. The younger son was holding a three-foot bar that he was going to use to lock a sliding door shut. Rather than ask the young man if he was the person who had been assaulted, or ask whether he was OK, Ware ordered the young man to halt and put down the metal bar. He pointed the laser sight of his Taser on the young man's bare chest (he was not wearing a shirt).
The young man, who feared the Taser was a real gun, put the bar down. The officer claims the young man advanced toward him and so he fired the Taser, hitting him in the chest and belly with its two barbs.
The mother, who was on the phone to 911 for medical assistance, and the older son say the officer used the Taser for more than one five-second cycle after the young son had dropped to his knees, and they begged him to stop. The Bureau did not check to see how many times the Taser was used. The Taser was then operated daily for over a year. Since the Taser holds only about 580 lines of information, the data was written over long before the CRC appeal took place.
Members of the CRC noted that the Officer never attempted to contact the white suspect. The Bureau says that is due to the family declining to pursue the original assault incident. However, police did not take into account that the officer had fired a weapon at one of them. As the young man's grandmother said, describing how the police prohibited her daughter from using the phone to call her: they had been "Robbed of safety in our own home."
CRC members indicated that the officer later asked his supervisor what to charge the young man with, and settled on "menacing." The charge was later dropped.
Overall, the CRC voted unanimously to uphold three of the Bureau's four findings. The CRC voted 8-0 to recommend the Bureau change the finding on the Taser allegation to "Insufficient Evidence with a debriefing." Director Rosenthal told the CRC that the Bureau agreed to this change.
IPR Director Continues to Disregard CRC and Public
In case #2004-x-002, regarding Officer Bridget Sickon using profanity, the CRC had voted to overturn the Police Bureau's finding of "Sustained," in favor of "Exonerated with a Debriefing" (see PPR #32). That finding meant the CRC believed the officer was within policy, but needed counseling regarding her actions.
At the May CRC meeting, IPR Director Rosenthal announced that he worked out a deal with the Bureau to change the finding to a "Service Complaint"--a complaint alleging minor rule violations that does not result in discipline. Director Rosenthal said the service complaint "fits sort of within" what the CRC requested.
Only sustained findings go in an officer's personnel file. Exonerated findings stay on file in the Bureau for three years. Any three Internal Affairs investigations in six months can trigger an Early Warning System (EWS) review for an officer (see sidebar). The EWS is supposed to identify possible problem officers. Three Service Complaints in six months can also trigger EWS review, but stay on file only for two years.
While we disagree with the CRC's proposed finding, we find the Director's actions in this case disturbing. He substituted his own judgment for that of the CRC. If the Bureau rejects a proposed finding from the CRC, the Ordinance requires the case to go to a hearing at City Council.
(For information on a case the CRC declined to change findings, see sidebar)
Policy Reviews: Public Cut Out, CRC Sidelined
Over the course of a few months, Auditor Blackmer laid out a plan for how the Citizen Review Committee can be involved in the review of Police Bureau policies. At the June 15 meeting, he stressed two seemingly contradictory things: That policy review is the most important function of the CRC--more important than the cases they review on appeal--and that the CRC should leave the policy review to the IPR staff.
Blackmer suggested a good role for the CRC members, who he said are appointed to represent the community values and views of the citizens of Portland, would be to act as a "sounding board" for the IPR. His continued attempt to rein in the CRC and emphasize their "advisory role" goes against the common expectations of what a citizen review board should do.
At the July meeting, Blackmer presented an outline which almost entirely cuts out the public. In this model, after the IPR staff does extensive research and comes up with a proposed solution to a perceived problem, the Police Bureau will be given a draft for comment. However, the CRC's only role is to prepare their own report if they wish to suggest revisions to that version.
Meanwhile, Director Rosenthal told the CRC he is negotiating rewriting the Bureau's car-towing policy, without having done any of the lengthy research being insisted upon by the Auditor. There was no explanation why some policies are treated differently from others.
CRC member Ric Alexander reminded Blackmer that the Bureau accepted several common-sense recommendations made by PIIAC, the previous review board. After hearing two cases in which citizens whose cars were towed were stranded in potentially dangerous situations, PIIAC recommended the Bureau adopt a policy to give citizens rides. The Bureau adopted the policy, with a caveat for officer safety, almost immediately. (Other such recommendations by PIIAC include:  police should describe specific behaviors rather than calling suspects "mental"; and  officers must provide their DPSST number when asked for a "badge number.")
The IPR presented a long list of policy items to be reviewed, which came from IPR staff and minutes of CRC meetings. Absent were the long lists of public input from the CRC's three public forums, despite the fact that most of that input is documented in the IPR's 2002 annual report.
Overall, the Auditor's biggest stated fear, that making a recommendation might lead to making a problem worse, is not a reason to avoid making recommendations.
Finally, the Auditor implied that having public meetings of the Policy Work Group led to bad publicity because the issues being reviewed became public before they were in writing. However, that is the nature of open government. It is likely that the CRC benefitted more by having open meetings than any negativity generated by the press.
Other Items of Interest Involving the IPR/CRC:
For more information call the IPR at 503-823-0146.
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