ANALYSIS: Semi-annual Police Review Board report still favors cop complaints over community (July 2014)

Table of contents
Internal Over External, Again, and Oddities in the Report
Still Much Information Missing
Recommendations Noted / Conclusion

July 22, 2014

From: Portland Copwatch

To: Christopher Paille, Police Review Board Coordinator
      Chief Mike Reese, Portland Police Bureau

cc: IPR Director Constantin Severe
Auditor Lavonne Griffin-Valade
Mayor/Police Commissioner Charlie Hales
Members of the media
Portland Copwatch

Mr. Paille and Chief Reese:

We have examined the Police Review Board (PRB) report released for July 2014, which, while slightly improved thanks to the cover sheets containing the newly required details, still falls short of the transparent information-sharing that we've asked for in three previous analyses. This report is unusual in that there are no deadly force cases included among the 15 Review Board hearings, only because there were no officer-involved shootings in the second half of 2013.

While some of the cases are high-profile, and thus the officers' names are known to the public, we want to emphasize that using officers' names serves at least three purposes: (1) it helps make the report read better, rather than running into redacted material referring to "Employee A" and-- inexplicably-- pronouns which prevent the reader to know even the gender of the officer; (2) it removes speculation from those trying to figure out who the officers are, and most importantly (3) it lets the community know what the histories are of the people they encounter who are sworn to "protect and serve" them. While we know the City did not take this position, we were astounded that the arbitrator in the Captain Wyatt case cited "public humiliation" caused by his demotion as a reason to change his discipline to unpaid leave; this is a high-ranking supervisor who was found out of policy regarding road rage and inappropriate touching of subordinate female employees. His behavior is what humiliated him, not his demotion.

Included in the 15 cases are 31 allegations, of which 17 were recommended as "Sustained" (out of policy). In addition, in one case the Citizen Review Committee (CRC) challenged the PRB's "Unproven" finding and the Chief sustained that as well; from what is discernible by the reports, it seems the Chief over-rode the PRB on two other allegations, finding them "Unproven" rather than "Sustained." As we noted in January, though the "Sustain rate" seems high-- 16 or 17 of 31 allegations, or over 50%-- the PRB is only invoked when there's a proposed "Sustained" finding, or if someone along the way "controverts" a proposed finding. This can be done by the Bureau's Professional Standards Division or the Independent Police Review Division (IPR) at the Auditor's office.

It's also important to note that although 8 of the 15 incidents involved civilians, it is likely that at least two of those were not community-generated complaints; another was about a car crash-- which came to the PRB from a Crash Review Board, not the complaint system; and two of the others were the same person (an officer's ex-wife) complaining about the same behavior from the same officer. Moreover, the most serious complaint-- in which an officer inappropriately used her Taser-- may have been internally generated, since her action injured not only the suspect but also a fellow officer.

We also noted that the 15 cases involved just 11 suspect officers, and of those 11, five resigned before discipline could be applied. This is not necessarily a bad thing for the people of Portland, especially as in at least a few cases it is noted that their files contain warnings to re-train or not to re-hire the people should they try to re-join the force.

While many of the decisions of the 5-member board, which includes an Assistant Chief, the officer's commander, a peer officer, an IPR director, and a community member, were unanimous, some of the split decisions re-open the question of reporting which vote was whose.

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As we examine the eight cases involving officer interaction with the community, first we will address the five that were not necessarily generated by subjects approached by on-duty officers.

In the two cases we are fairly sure were not generated by community members, officers were found out of policy for (1) failing to search a subject who was transported to Detox, thus not noticing or seizing that person's knife and alcohol; and (2) confronting a suspect without waiting for backup, leading to that suspect injuring the officer. In the former case, there is a mention that the officer had a "personal connection" to the person who was transported, but it's not clear if that means it was a friend or relative, or if it was just someone the officer had taken into custody in the past. In the latter, the same female officer who inappropriately used a Taser in the other incident was found out of policy, but the Chief rejected a recommendation of termination because he disagreed that it could be proven she lied about when she submitted her police reports. With her putting herself into a dangerous situation in this case, and adding it to the Taser case where two officers had already taken control of the suspect, it seems as if 80 hours suspension with a "last chance" notice was a very generous decision by the Chief. The female officer's case is peppered with information about a medical condition she may or may not actually be suffering from, and a note about memory loss; it's understandable that medical information is confidential, but there was probably a clearer way to write the report than how this was presented. (The new summary is much clearer about this than the original PRB memo, for example: "One member noted that --------- could be used by -- "Employee A"-- to say that ---- --- --------- at that time and that ---- didn't intend to refer to a particular medical diagnosis.")

The car crash incident involved an officer who, while blocking an intersection, waved one car around and then ran into the next car forward. The officer was to receive 20 hours suspension without pay but resigned instead. As it was noted this was the fourth avoidable accident by this officer, the Bureau's likely better off without them.

The two cases involving the officer's ex-wife were among three involving the high-profile Detective Jason Lobaugh. Because the report is not put together in chronological order by incident date, it's a bit confusing, but by parsing out what's written and what's been revealed in public, this is what we think happened:
--in November 2012, Lobaugh confronted his ex-wife and her current husband on three occasions, twice outside her home and once in a more public location, making "crude comments" and acting unprofessionally;
--that case led to Lobaugh's supervisor, Commander Donna Henderson (now an Assistant Chief) writing a memorandum telling him to watch his behavior;
--within a few months, sometime in 2013, Lobaugh nonetheless re-contacted the new husband and called him a "coward," trying to provoke a fistfight.
--Meanwhile, or maybe later in 2013 (the case number is 121 numbers higher), in a third incident Lobaugh reportedly told jurors in a case he was going to testify about, "The detective in this case is outstanding." Because of how the report is written, it's not clear if this was an internally generated complaint or if one of the jurors or another civilian reported Lobaugh.

In the second confrontation with the new husband and the jury case Lobaugh was found out of policy for unprofessional conduct, with an added "Sustained" finding for disobeying Henderson's orders. Lobaugh's ex-wife appealed the original case to the CRC, which resulted in another "Sustained" finding but nothing publicly from the Chief addressing discipline, since Lobaugh resigned just before that decision was made, and before he could be fired for the other two incidents. Interestingly, a minority of the PRB who originally heard the case wanted to "Sustain" the finding and recommended 40 hours' suspension. We will address this again below.

The three other complaints involving community members were: the Taser case (again, not sure if the civilian or the cop filed this complaint), the Lobaugh jury case, and a case involving what appears to be racial bias-- but was handled as mere rudeness. That last case was reported briefly in the IPR's fourth quarter 2013 report, noting that the IPR Director controverted a finding to send the case to the PRB. What's odd about the case, though, is that the complainant, an African American woman, complained that officers had racially profiled her son, and they responded by saying something like "you don't have to play the race card." The officer was found out of policy for escalating the situation using this language in a 3-2 vote, while two members (we're guessing these were police) felt the language was unfortunate but not a violation of policy. We wonder, in what circumstance other than when talking to a person of color would the officer have said something about "playing the race card"? In other words, in what way could this possibly not have been investigated as an instance of discrimination? We're glad the issue was addressed, but it seems with all the attention to institutional racism training, such an overt action should be called what it is.

On to the seven internal cases, involving just 6 officers, one of whom is the notorious Captain Mark Kruger. In a highly publicized case that made a large splash in the news for the second time, Kruger was previously investigated for harassment of a female Lieutenant in his charge, Kristi Galvan. Kruger was exonerated, but posted his exoneration letter on his office door and wrote Galvan's name on the letter. For that action, he was found guilty of retaliation (in a unanimous vote) but only recommended to receive a letter of reprimand (by 3 members-- a fourth wanted 80 hours' suspension).* While the process of the PRB stops at the recommendation of discipline, it is deeply troubling to people in the community (and apparently to some members of City Council) that Kruger was able to erase both this incident and the incident in which he nailed up a shrine bearing the names of Nazi soldiers in a Portland Park. Especially, as has been noted elsewhere, after the diversity training that has been going on at the level of the Commissioner and Command staff of the Bureau.

Here are the other six:
--an officer apparently asked for a leave of absence to seek other employment, was denied, then asked for a separate leave for educational purposes but took other employment; this officer was found to have both violated the unpaid leave and truthfulness directives, and resigned before the Chief could terminate him/her.
--in two incidents involving another officer, they allegedly made inappropriate remarks about "homosexuals" getting benefits (in one case) and some kind of racist remark (which, inexplicably, is not even broadly hinted at in the report) in the second. Both cases were found not to have violated policy, but the officer was "debriefed."
--Captain Ed Hamann, who was about to take the helm of the family services division, was investigated for unwanted sexual contact with another officer in 1997, found out of policy, and resigned. The case led to an interesting discussion about how the officer would have been disciplined 17 years ago versus the present; the recommendation was for demotion, suspension, or, following modern standards, termination.
--an officer who repeatedly used the Bureau's computer for personal business admitted to the behavior and was given a letter of reprimand; their possible untruthfulness, failure of duty, and retaliation against the person who reported the behavior were all not able to be proven, while their not showing up to work on time was somehow found within policy.
--another officer used the Bureau's criminal records database to look into a confidential case and was given a letter of reprimand. It appears that the officer was under investigation for something, but it's not clear because of how the report is written whether the use of the computer had to do with that investigation. A similar allegation about a different database ("R-view") was unproven.

*-it is possible that for some reason this Police Review Board only had four members on it.

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As we noted with the January report, there is less information being redacted now than in the past, but partly because the report is so thin in the details. We'd recommended that, for instance, the date of the incident in question be included in the reports, but such a date is only included in one case. Several cases seem to have taken from 2011 to 2013/2014 to be adjudicated, plus, of course, the 1997 case was highly unusual in its longevity.

While the case numbers now indicate what kind of complaint is being considered ("B" for Bureau, "C" for cases involving community members, "P" for performance review and "CRB" for Crash Review Board, though this legend is not included in the report), as noted above it is not clear whether a complaint was generated internally, by a community member, or from another City agency (IPR, for example).

The number of voting members and votes is not always clear in cases where the vote is listed as "unanimous." As noted above, one case only lists four recommendations for discipline rather than the PRB's five member make-up.

We still believe a discussion of whose opinions are whose would be useful; frequently, including in the Lobaugh 2012 case, there are 3-2 splits excusing officer behavior which implies that the IPR and community member may be splitting from the police members, but that is mere speculation on our part. At other times, one member will say the officer did not engage in the alleged conduct: for example, the officer who may have retaliated against his accuser (by saying he was "less than a man" for turning him in) was not necessarily using intimidation. In these situations, we worry that this is the officer's commander making excuses for his/her underlings. If that is true, it supports our ongoing concern that the commanders continue to have a vote on the boards.

While many of the reports do include at least the basic scenarios of what happened, others contain so little information that it leads to confusion. It's perplexing why the gender of the officers is now being redacted, that does not seem to rise to the level of confidential information. As noted above, the incident where an officer was accused of making a racist remark leaves questions about whether it was the "N" word or something more mild that was found to be within policy.

We do appreciate that all the dates the Review Boards were held were listed this time.

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We want to acknowledge that the PRB made a number of recommendations based on the cases they reviewed, including the idea of re-defining retaliation so that an objective third party can decide whether the suspect officer retaliated rather than leaving it to the recipient of the behavior. Most of the recommendations say that they were agreed to and/or assigned to various divisions within the Bureau. We hope that the PRB will include in future reports any adoption and implementation of such recommendations, perhaps in a separate table attached to the report.

In terms of improvements, we do want to thank whomever referred to the Taser as a "weapon" rather than a "tool."

In conclusion, we continue to encourage the Review Board to keep publishing these reports, but hope that a more transparent and less Bureau-heavy process will ultimately be designed. We continue to urge the Bureau to allow, minimally, the community member involved in the incident and members of the press to attend these hearings. We also continue to be troubled by the fact that the Bureau doesn't notify interested parties (like Portland Copwatch) by email, or send out a news release when the reports are published.

Thank you,
dan handelman
--Portland Copwatch

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Posted July 22, 2014