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Review Committee: Bully Cop Out of Policy;
Chief Prompts Finding Change in Rudeness Case
Other Cases Raise Questions;
Two Board Members Resign as Future Changes Discussed

Although the Citizen Review Committee (CRC) voted to "Sustain" a finding of officer misconduct in a racial profiling complaint that was treated as rudeness (PPR #60), a questionable visit from Police Chief Mike Reese led to a reversal of that recommendation in early October. In December, CRC found an off-duty cop violated policy by intimidating his ex-wife. CRC also made one minor suggestion for change in a second profiling case heard in late October, while another case involving an off-duty cop raised questions about the "Independent" Police Review Division (IPR). In the meantime, two more CRC members resigned, leaving the Committee to be understaffed for a majority of 2013. And, while Director Constantin Severe was busy trying to make changes to strengthen IPR but not CRC (article), the Committee used its retreat to ponder what changes might be imposed on them when the Department of Justice (DOJ) Agreement is fully implemented.

At their October 3 meeting, CRC held a "conference committee" with the Bureau on case #2013-x- 0002, involving Floyd McCorvey, a man who was accused by Officer Todd Tackett of being a pimp and having a pipe to smoke crack (it was a medical marijuana pipe); Tackett aso made an offhand remark about McCorvey living in public housing. IPR refused to investigate the case as racial profiling, categorizing it as rudeness. CRC had voted to ask the Bureau to change the finding to "Sustained" (out of policy) on that allegation (PPR #60). The Chief disagreed with their suggestion, triggering the special hearing, at which Reese appeared, in uniform, to explain his reasons for keeping the finding as "Unproven" (not enough evidence to prove or disprove), with a debriefing (meaning the cop's supervisor says how he could have done better).

The Chief's four-page letter explaining his refusal was mostly spent recounting McCorvey's criminal record, focusing on events that had happened 10, 13, and 16 years before he was stopped for "jaywalking" and questioned about being a pimp. That the officers had no way to know of this record when they approached McCorvey, and that all the details of this history were not presented to the Lieutenant who made the original finding, did not seem to deter the Chief. Since CRC is forbidden to make decisions based on information that is not part of the official investigation, someone should have told the Chief his letter violated the IPR and CRC ordinance. The people best suited to do that, Deputy City Attorneys David Woboril and Linly Rees, were present at the hearing but sat silently while the Chief blamed the victim of police misconduct.

The Chief's letter also lavished praise on Tackett, who was promoted to Sergeant the day after CRC's original hearing on the case. He mentioned that Tackett had no history of misconduct but was given many commendations -- also information likely not in the file as it is not relevant to whether he committed misconduct in this instance. Pamela Dunham, a new member of CRC who had wavered but tipped the vote to be 4-2 in August, expressed that Tackett appears to be of good character and stalemated CRC in a 3-3 revote at the new hearing. Even though the ordinance requires CRC to come to a majority vote at such hearings, Chair Jamie Troy declared the impasse meant that the Unproven finding would stand. Past conference committees resulted in more unanimity among CRC members, when even those who had originally spoken out against a changed finding voted to stick to the original recommendation to honor the majority. That did not happen in this case.

After the meeting, Portland Copwatch (PCW) pointed out that far from being an angel, Tackett was involved in the 2006 high-profile case of Sir Millage, a 15-year-old African American with autism, who was Tasered multiple times and hit repeatedly with a baton (PPR #40).

To his credit, the Chief included an apology in his letter for the Bureau conducting the "debriefing" attached to the "Unproven" finding before the CRC process had run its course. Unfortunately, CRC did not ask the Chief about everything that was said at the debriefing the officer received, and thus was unable to recommend any further topics which may have been missed.

At CRC's November retreat, the IPR Director stated he felt the substance of the Chief's letter in the McCorvey case was mostly irrelevant since the Commander didn't address any "credibility issues" in his letter of findings. (An understatement, but still welcome.) Perhaps he was emboldened after the CRC Chair was quoted in the October 5 Oregonian lambasting the chief.

CRC then held a special meeting on October 28 to complete the hearing on case 2013-x-0001, about Lisa Haynes, a female 4'-10" African American Appellant who was mistaken for a 5'-4" Latino man accused of rifling through mailboxes (PPR #60). IPR and Internal Affairs had taken the case back voluntarily to conduct more investigation when they learned Haynes' son had overheard the altercation between her and the police over her cell phone. Unlike in the McCorvey case, they added allegations that the officers had racially profiled Haynes. However, it is unclear what questions were asked. The Bureau's Disparate Treatment directives talk about the inappropriate use of race as a factor unless it is part of a suspect description. In this incident, the only thing that matched was the clothing, while Haynes' race, gender and height were not at all what was relayed to police. It feels as though officers came upon her and thought, "she does not have white skin, this could be our suspect." Unfortunately, CRC affirmed the Bureau's finding of "Exonerated" (actions within policy) in a 4-3 vote.

Another issue in this case was whether the police conducted an improper search on Haynes. She had refused to show them identification and refused a voluntary search of her backpack. After hearing advice from her son that she did not have to talk to the police, she made a move to pick up her bag and that's when the cops grabbed her, arrested her for "interfering with a police officer" (aka "failing the attitude test"), doing a search incident to an arrest, and then un-arresting her. In doing so, the police made an end-run around the Constitution.

Haynes indicated the officer said something along the lines of "you don't have any fucking rights," leading to a rudeness allegation. CRC voted 6-1 to propose changing the finding about rudeness from "Exonerated" to "Unproven," since the officer admitted that he said something "off the wall." CRC also, as in the McCorvey case, took symbolic votes to show how the outcome of the hearing would have differed if they had a less deferential standard of review. A symbolic vote to "Sustain" the rudeness allegation passed 4-3. The question about the search being inappropriate passed 5-2 in a symbolic vote to change it from "Exonerated" (which their formal 4-3 vote upheld) to "Unproven." These votes build up the historical record of how the current "reasonable person" standard hampers CRC's ability to hold officers accountable.

Although Lt. Elmore said his debrief of the officers would include their not having waited a few minutes for the female officer involved to search Haynes, everyone at the hearing seemed to ignore her description of being groped by the male officers who did perform the search. Lt. Elmore also relied several times on speculation to defend his decision making, as Lt. Mike Fort and the Chief did in the previous case.

The Case File Review is held to ensure CRC has all the information needed to review a complaint. CRC had asked why Lobaugh's prior history was not included, since his ex-wife's complaint mentioned he'd been investigated repeatedly. Internal Affairs Captain Dave Famous said he does not include in the case file information not directly relevant to the case being reviewed. CRC members, most notably Chair Troy, expressed concern that it was IPR-- the body created to be sure the police don't do biased investigations-- who put Haynes' son's criminal history in her file for CRC to look at (for which IPR Director Severe previously apologized) and McCorvey's criminal history in his case file. Troy noted that CRC is supposed to be considering whether a police commander's decision is reasonable based on the evidence they reviewed-- but IPR is providing a different set of evidence to CRC, with information tending to disparage the complainants.

At their regular November meeting, CRC held a Case File Review on an incident involving a familiar name to the PPR: Detective Jason Lobaugh. One of Lobaugh's ex-wives filed a complaint (appeal #2103-x-0003) about his behavior during three incidents in which he threatened both her and her new husband over child custody issues. Lobaugh admitted to the behavior in question, but the Bureau could not decide whether it violated the directives about professional conduct when off duty. The November 6 Willamette Week reported that "Lobaugh has been investigated multiple times for alleged threats and acts of physical violence against members of his own family." (See sidebar for more on Lobaugh.) The Bureau's finding on the allegation of unprofessional behavior was "Unproven with a debriefing." At CRC's December meeting, a full appeal hearing resulted in a 5-0 vote asking the Bureau to change that finding to "Sustained."

The basis of the vote included that Lobaugh had admitted to (1) yelling into the Appellant's house to try to get the new husband to come out at the first altercation, when he arrived on an off-week to see his son, and calling her a "head case"; (2) calling the husband a "little bitch" when he returned five days later, also not on an agreed custody date; and (3) saying "look who came out to play" to the husband--in front of two police officers in a public setting--in the third incident when they'd agreed to meet away from her home to swap parenting for the son. Interestingly, IPR supported CRC's vote to change the finding, something that rarely happens. This was because IPR Assistant Program Manager Rachel Mortimer had tried changing the finding by "controverting" it, but the Police Review Board outvoted her and recommended "Unproven with a debriefing."

The Willamette Week (WW) reported that Det. Jason Lobaugh, the subject of appeal #2013-x- 0003, attempted to influence jurors in a case he had investigated by telling them out in the hallway how great the detective was who handled the case being considered (September 18). Although the jurors expressed feeling coerced, the judge did not declare a mistrial. Portland Police Association President Daryl Turner is quoted saying "He just made a joke... people want us to engage with the community." The article also indicates that Lobaugh was known to have used steroids back in 2000.

The investigation into the jury tampering led Lobaugh, still on probation as a Detective, to be assigned at officer rank to the Telephone Reporting Unit (WW, November 6). WW reports Lobaugh allegedly threw boiling water in his ex-wife's face and was investigated by law enforcement after kicking his stepson. Also that Internal Affairs is investigating Lobaugh for attempting to pick up his daughter from a different ex-wife, then telling the cop who showed up "Fuck you very much." According to the article, Turner commented that Lobaugh "doesn't have an anger problem, he has a problem with picking wives." Turner posted a denial of the quote on the PPA's website, claiming disdain for all domestic violence.

As a reminder, we previously wrote about Lobaugh when: he kicked and tasered a man; he told a balding attorney "I got two words for you-- Ro-Gaine" (both PPR #40); he wrote anti- civilian comments in the PPA's newsletter (PPRs #31, 33, and 41) and, most recently, his car accident with a motorcyclist led the city to pay out over $61,000 (PPR #59).

At the CRC's specially scheduled November 21 meeting, they conducted a Case File Review for appeal #2013-x-0004, involving the first officer to ever appeal a non-sustained finding. The civilian complainant says that an officer flashed his badge and gun and swore at him during a dispute over a "low speed chase" in a gym parking lot. The investigation apparently showed that "Sergeant A," identified later by the civilian, was not at the gym harassing the complainant on the day in question-- even though the complainant wasn't sure of what day it was. The Sergeant appealed because the finding was "Unproven," indicating that it's possible he did what was alleged. His concern that any finding other than "Exonerated" would look bad on his record led to the important discussion lingering for over six years since then-IPR Director Leslie Stevens decided to collapse "Insufficient Evidence" (not enough evidence to prove or disprove the claim) with "Unfounded" (the evidence shows the incident did not occur as alleged) into the "Unproven" finding (PPR #42). Captain Famous and Lt Bell of Internal Affairs seemed interested in the idea of splitting the definitions back apart even though the Bureau has resisted it when Eileen Luna Firebaugh (2008-- PPR #44) and the Stakeholder Committee (2010--PPR #52) among others have proposed it.

This case shows the police care about what the finding is. CRC debated whether to even hold the appeal and asked IPR to offer mediation to the Sergeant and the complainant -- even though paperwork shows the Sergeant waived mediation previously. The fact that the officer says he was not involved in this incident but wants to go to mediation (to tell the complainant that officers shouldn't behave the way he says a cop did) raises the concern that the officer is lying. IA checked the Sergeant's gym attendance for the month of October, but it might have been November (and he may have chosen not to go in the day in question); he says he never drove the kind of car described, but maybe he had rented or borrowed such a car. If he were to go to mediation and confess, that information would be confidential and the officer will have skirted accountability.

An important side note to this case: for at least the third time, IPR and IA did not investigate an officer's display of a badge and/or gun as improper use of position in a personal dispute.

After the Director's rebuff to CRC regarding their request to change their standard of review in September (article), he also argued in November that the City would not renegotiate the DOJ Settlement Agreement which calls for CRC to finish its appeals within 21 days, down from their current 60-90 days. The ordinance being contemplated by City Council says the entire investigative process including CRC appeals has to be completed in 180 days, so even if the 21 day timeline is never formally adopted, an investigation that lasts more than 159 days would severely limit CRC's ability to give an appellant a fair and thorough appeal process.

So CRC devoted quite a bit of their November 10 retreat to the question of speeding up appeals. They repeated previous suggestions, including an insistence that the Bureau put investigative files on a secure server so the all-volunteer panel can review them remotely, without having to make their way downtown during business hours. (In December Captain Famous said that was not likely to happen). The members who attended, as well as former member Eric Terrell, seemed to feel there is no good way to conduct hearings in such a short time frame. Terrell, who has acted multiple times as an Appeals Process Advisor to support complainants, usually meets with "clients" multiple times to prepare them. He noted they might also have a Legal Advocate, who would also need more time to prepare. The reduced timeline would also eliminate the Case File Review, a step that has improved the hearing process. Terrell repeated the point that community members who have been through the process are less concerned about the length of time than whether the process was thorough and fair.

To remove the timeline crunch, CRC will have to convince the Auditor, IPR and Council to change their proposed code language and the Judge to modify the DOJ Agreement too so CRC appeals are not considered part of the investigative timeline.

Also at the retreat, CRC encouraged the Director to invite Auditor Lavonne Griffin-Valade to come back to CRC meetings, or at least to show more interest in their work. Griffin Valade has not sat through an entire CRC meeting for nearly two years.

At CRC's September meeting, Director Severe indicated that changing the standard of review might require CRC to shut out the public (for reasons that were unclear), drastically changing how it functions. However, CRC has always been allowed to, and frequently used to, go into "executive session" at which the public were excluded but media were allowed to remain.

Although they were just appointed in June (PPR #60), Dunham and Keeble Giscombe resigned in mid-October and early November, respectively. CRC, authorized for 9 positions, operated below full strength from January to mid-June, with just 7 members, and will close out the year with the same low numbers. IPR had selected enough new members to fill two seats to be added once the DOJ Agreement changes go into effect, and a replacement for Rochelle Silver, who decided not to re-commit when her term ends in February. When Steve Yarosh resigned in August, one of the three extra people, Roberto Rivera, was called up. So to fill Dunham, Giscombe and Silver's seats IPR contacted at least one person who "didn't make the cut" in June.

PCW has tracked CRC membership and warned IPR years ago that an average of two people per year resign early, which has held true even though five just resigned within one 365-day period. Since 2001, 45 people have been on CRC. 24 resigned (63%), 13 had their terms expire, and 2 were not renewed (one was reappointed, then resigned).

--At the September meeting, CRC heard a follow-up presentation by Sgt. Jim Quackenbush and Detective Stacy Dunn about race dialogues being held among officers (PPR #57).

--At the October meeting of the Deadly Force work group, PPA President Daryl Turner claimed (incorrectly) that CRC is anti-police and that's why he won't send officers to appeal hearings.

--The Crowd Control work group circulated a list of possible recommendations in September but hadn't started writing their report by mid-December.

January, 2014
Also in PPR #61

Portland Copwatch
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Portland, OR 97242
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Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.

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