Portland Copwatch Analyzes "Independent" Police Review Division 2010 Annual Report

INDEPENDENT POLICE REVIEW DIVISION'S 2010 ANNUAL REPORT: NO USER FEEDBACK, SOME IMPROVEMENT, BUT LEAVES MUCH TO BE DESIRED
an analysis by Dan Handelman, Portland Copwatch, June 7, 2011

The 2010 annual report from the Independent Police Review Division (IPR) is slightly slimmer this year by a few pages-- likely a result of their completely removing information about survey feedback from civilians who filed complaints with them about the Portland Police. In general, the report continues the more neutral tone adopted in 2009, organizes itself in a slightly more logical way, continues to include useful anecdotal examples, but leaves up to the reader much of the work comparing the past to the present and finding further information. In a year that included a huge upswing in police shootings (six last year versus one or two in 2007-2009), changes in the Chief's Office and the Police union, and massive settlements going to people abused at the hands of police, the report is quite muted in its observations of being the City's oversight body.

It should also be noted that IPR opens the report touting the changes made to its ordinance in March, 2010, briefly mentioning the "Stakeholder Report" which made 41 recommendations for further change, yet it does not note that said report was heard by City Council in December and has yet to be brought forward for consideration. Perhaps the IPR feels that the Citizen Review Committee (CRC), the 9-member volunteer group that reviews IPR's work and hears appeals on misconduct cases, has all the power it needs. Portland Copwatch (PCW) joins many in the community in hoping IPR and CRC will continue to be strengthened, as the annual report shows their response to the community is still lacking.

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WHAT CAN BE FOUND CAN BE TROUBLING, EVEN MORE SO BY STUDYING PAST REPORTS
No Racial Profiling Complaints, Three Force Complaints Sustained; 75% Dismissal Rate, Minor Complaints Overused

The IPR's 2010 report shows a few trends that raise concerns, and others that become clear if one reads its past reports from 2002-2009.

--Racial Disparities and Racial Profiling Constant

For example, the percentage of African Americans who file complaints about misconduct continues to far outweigh their representation in the population, with 20% of "known" complainants this year compared to 6% in the census (p. 31, in the appendix). However, last year was the third in a row, and the 8th of nine years IPR has existed, that no Disparate Treatment/Racial Profiling complaints were found out of policy (p. 14). Only one such allegation has ever been "Sustained," in 2007. But you would not know this reading the report, which has no comparative timeline of Sustained allegations over time.

--Use of Force Findings Up, A Little

A good trend of note is that there were three allegations of improper use of force that were "Sustained" in 2010, up from two in 2009, one in 2008 and just one total in all the years from 2002-2007. However, it is not clear from the report whether these new results are due to officers violating some technical part of the force policy or whether they are all being held accountable for using excessive force. By putting together the pieces, it is possible that all three have been publicly reported. We do know, for instance, that Officer Ron Frashour had a complaint Sustained against him for using his Taser inappropriately on a man with a camcorder, a finding made in response to the Citizen Review Committee's recommendation to the Chief. Another, according to IPR's fourth quarter 2010 report, involved an officer who "kicked [a young person] in the stomach, used excessive force in subduing the youth, and [failed to] file a police report detailing his use of force." In another, officers chased a man who tapped his fingers on their patrol car and used excessive force to take him into custody inside a nightclub (IPR first quarter 2010 report). Since the IPR barely references the quarterly reports in the annual report, again it is up to the public to get the details. And while it is an improvement, with 62 allegations of force coming in, having three Sustained (4.8%) is not a great outcome (more on the Sustain rate below).

--Declinations/Dismissals Up; Investigations Down

IPR also fully admits to outright dismissing 66% of cases, up from 60% last year (p. 7). However, once again it is up to the reader to add together IPR's dismissing 234 of 356 processed complaints and the 33 cases declined by Internal Affairs (IA) out of 128 sent to them (p. 10). In all that makes 276 complaints dismissed, or 75%, which is more than the 71% tossed out last year.

The report shows that IA only investigated 28 community complaints last year, up one from 2009 but down from 47-65 in 2006-2008 (p. 10). IA also reviewed 21 of 24 Bureau-initiated complaints (p. 5), down from 48 in 2009. Another number not included in the report is that the 28 community cases represent just 7.9% of all complaints; in other words, a person who files with IPR now has a one in 13 chance of having his/her case investigated, up only slightly from the 1/14 chance last year.

As a side note here, if the six investigators at IA conducted 28 community, 21 internal and 6 shooting investigations, that is 55 total in a 52 week period, or about 9 cases per investigator. Therefore, each case took each investigator an average of five and a half full weeks to investigate. Similarly, IPR has three and a half intake staff and reviewed 385 cases, or two and a half intake cases per person per week. It would be interesting to find out how those break down into the 40 hours per week that most people work.

IPR also has more explicitly taken on the role of clairvoyant by dismissing cases when they believe that an investigation will not lead to proof that misconduct occurred. Of the cases dismissed by IPR, 45% had no misconduct alleged by the complaint, and 18% --or roughly one in 5-- fit their new "cannot prove misconduct" category (p. 8). We continue to urge IPR and IA to put the effort into an investigation. Even if the outcome is an "Unproven" finding, the community member will feel their concerns were taken seriously. In addition, the ordinance outlines several reasons IPR may dismiss a complaint but "cannot prove misconduct" is not one of them.

The example given of this kind of dismissal shows a person cited who felt the officer knew he would not be able to challenge the ticket in court because he was from out of state (p. 9). How did IPR know on its face they could not prove this? Looking into patterns by that officer--and perhaps by traffic officers in general-- could show that was a possibility.

Similarly, the IPR referred one case to a Precinct for action in which an officer was not wearing her seat belt and insisted it was not necessary. Even though Directives to require officers to wear seat belts (meaning she was out of policy), no investigation was done and that particular officer was not held accountable. On the bright side, the referral led to reminders to all officers to wear their seat belts (p. 9).

And finally, the IPR's example for a complaint that contained "no misconduct" was about a police car speeding about without lights and sirens. IPR noted that no sirens are needed if they may interfere with apprehending suspect, so they dismissed the complaint (p. 8). It is not clear whether they found out whether the particular officer in question was legitimately invoking this exemption to using their emergency warning equipment. (IPR staff has confirmed to PCW that they did seek that information, but should have noted it in the report.)

--Non Disciplinary Complaints

While the use of non-disciplinary complaints ("Service Improvement Opportunities," or "SIOs")* went down from 58% of IA-assigned cases to 52% (p. 11), their use still outweighs the number of times full investigations are initiated, and has remained at a raised rate from 34-54% in 2002-2006 to 51-60% in 2007-2010.

The report mentions an important fact: That SIOs are kept on officers' records for three years (p. 12). This gives them a little more meaning than just a talking-to by a supervisor.

While there were 40 complaints of Disparate Treatment (DT) this year, use of SIOs for Racial Profiling complaints did not make the top 5 list as it did last year when 10 of 50 DT complaints were handled this way. Failure for officers to provide their names, which should have stopped after Directives were changed to require handing out business cards in late 2008, made it to the #5 SIO slot the second year in a row, with 6 instances this year approximating the 7 from 2009.

*-While we are still hoping the IPR will agree to change the name of these complaints as recommended by the Stakeholder Group, we thank them for including the term "non-disciplinary complaint" in the text of this report (p. 12).

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STICKING TO ITS HABITS: IPR CONTINUES TO MISLEAD
What IPR Does, The Rate of Sustained Findings, and Community Satisfaction Leave Wrong Impressions

As noted in previous reports, the IPR has a habit of misleading the public in its report by lack of clarity, limited statistical analysis, and omission.

--What IPR Does

IPR continues to list its ability to conduct independent investigations in its introduction (p. 1) though it still has never done so in over nine years. With the addition of new powers that went into effect in late April 2010, IPR, to its credit, has taken on a more active role in shootings investigations. However, the report states that "IPR participates in the interview of the involved officers and witnesses..." but later clarifies that IPR sat in on just five investigations identified as high community interest (p. 10).

--Sustain Rate

Also as in years past, IPR seemingly inflates its "Sustain Rate" by only noting the percentage of _cases_ with "one or more Sustained findings" (37%) and the percentage of total findings that are Sustained (as opposed to "Unproven" or "Exonerated"), is 14% of all _investigated allegations_ (p. 14). The 2008 Luna Firebaugh report suggested they look at percentages compared to overall complaints-- which then shows 7 of 356, or 2.0% of cases had a Sustained finding, though more accurately, 11 of 910 allegations provides just a 1.2% Sustain rate.

Once again, officers' complaints seemed to fare much better, with 16 of 27 complaints, or 59% having a Sustained finding, or 28 of 48 allegations giving a 58% rate (pp. 14-15). The rates do not change substantially when based on the total number of cases (24) or allegations (51) levied in 2010 (p. 35).

We also continue to join the Stakeholder Group in urging IPR and the Bureau to return to the four categories of findings they used until 2007: Sustained, Unfounded, Insufficient Evidence, and Exonerated. "Unfounded" means the facts don't support the allegation, as opposed to "Insufficient Evidence" which means there is not 50%+1 of evidence to prove if the incident happened as alleged or not. As such, the "Unproven" numbers are not as meaningful in analyzing how often the system finds the civilian and the officer equally credible. However, we do note that "Unproven" findings were down from 51% in 2009 to 42% this year, in part because the "Sustained" findings were up from 6% to 14% of all findings made (p. 14).

IPR and the Bureau also prematurely acted on recommendations from the Stakeholder group regarding adding new ratings about Communication issues, Management issues, Training issues, Equipment issues and Other policy-related issues, to explain why the officer may be within policy but something else at the Bureau may be to blame. They stated they have added similar notations to cover letters about each completed case, but there is no mention of these new ratings or how often they have been used in the report.

--Community Satisfaction

This year in the omissions category, IPR outdid itself in casting aside the opinions of people who have used their complaint system. In the past, they published data from surveys sent to complainants, which consistently showed an approval rating of under 50%, dismissing the statistics as unimportant due to low survey response. This year, they repeated that their own survey was "not meaningful for drawing accurate conclusions" and left out the whole survey, stating that from now on they will only publish the results of the Auditor's city-wide survey on various services. Though this survey also does not show IPR in a good light-- only 34% of respondents had a positive view of IPR, down from 38-47% in past years (p. 22)-- one can more easily declare it invalid since it asks nearly a million people to talk about a service that only about 400 people a year actually use. Again to its credit, IPR admits they "need to continue to work to improve services" but prefers to think people just don't understand what they do, also wanting "to educate the public about the role and authority of IPR."

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CITIZEN REVIEW COMMITTEE: WORK DETAILED, BUT NOTABLY DISRESPECTED

The Citizen Review Committee's work is represented in great detail in this year's report, with some specific information provided on nearly all of the five appeals they heard on misconduct cases-- including the five allegations they challenged successfully, the three reports they presented to City Council, and the eight Work Groups which were functional in 2010. Yet for all its attention to the countless volunteer hours put in by the CRC, IPR virtually cut them out of the two-page executive summary, instead filling 1/3 of a column with a list of organizations contacted by the Outreach coordinator.

In addition, CRC is still described in the report as an "Advisory body" to the IPR (p. 25)-- even though they directly report to the Bureau their opinions about the appealed cases, and more often than not provide policy recommendations directly to the Bureau. (A restriction in the ordinance that IPR technically has to make the recommendations is likely to be changed whenever the ordinance is next revised.)

--CRC Appeal Hearings

The startling fact that emerges from the report is that no civilians filed appeals of non-Sustained findings to CRC in all of 2010, a first in IPR history. Two police officers, exercising their power under the ordinance, filed appeals about Sustained findings-- but withdrew before CRC had a chance to hear them. No details on these cases are given.

The report does describe CRC's five appeal hearings by giving a little bit of information about each case (pp. 15-17):
--A young man was allegedly hit by a police flashlight; the CRC affirmed the Bureau's findings, which the report only says the Bureau "didn't sustain," but isn't clear whether they were Exonerated or Unproven. (At the hearing, CRC affirmed the flashlight finding as "Unproven.")
--A case involving 13 allegations lists many of the specific complaints but doesn't mention that the complainant, Frank Waterhouse, was originally followed for jaywalking. This was the case involving Officer Frashour-- but IPR continues not to publish names of complainants or officers even when they've been in the press. To its credit, IPR details not only the specifics of the three allegations challenged by CRC, including Sustaining the complaint about Frashour's use of a Taser, but gives the vote tallies for each one. (They use of force finding is confusing, as the originally listed allegation has to do with the injury to Waterhouse's elbow from a rough take-down.) It's also significant that the IPR reports the Chief decided to accept the findings after CRC voted unanimously to proceed to a City Council hearing... such a hearing has not been held except for once in 2003.
--Allegations about excessive force and a "unapproved control technique" enumerated in another case do not describe the full allegations of a knee-drop to Jason Crohn's neck ("Exonerated") and slamming of Crohn's legs in a police car door ("Unproven").
--A case in which a woman said she was harassed by police and pinned into a phone booth is just reported as being about officers' "conduct during a contact." CRC asked Internal Affairs to do more investigation and they refused to do some of it, which the report delicately states as "IA agreed to investigate a portion of the request."
--An incident of alleged road rage by an officer is described without the use of that term. In the details about the two findings challenged by CRC, IPR does note that the officer allegedly "pounded with a key on the car window," but in the allegation about the officer's misuse of his authority it fails to mention he allegedly slammed his badge on the appellant's windshield to emphasize that he did not need to call police to the scene. (At CRC's recommendation, the Chief changed both from "Exonerated" to "Unfounded.")

--CRC Work Group Reports

The report also talks about the reports generated by the CRC's Bias-Based Policing, police shootings policies (PARC) and IPR Structure Review Work Groups, but does not summarize the findings nor point the reader to IPR's website for more information. The exception is the Outreach Work Group, which says the summaries of CRC's two public forums are on line. (The Recurring Audit Work Group's report on "Service Improvement Opportunities" is also on line, but was completed in 2011.)

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NEW ADDITIONS: WELCOME INFORMATION NEEDS EXPANSION

The 2010 report also includes a few new pieces of information which are welcome, yet could still use more clarification and detail to have more meaning.

--Bureau-initiated Investigations

A new section on IPR oversight of Bureau-initiated investigations (pp. 12-13) addresses IPR's new authority from the 2010 ordinance changes, which allow them to sit in on investigations of such cases done by IA, recommend findings and discipline, challenge findings and send cases to the Police Review Board (PRB), as they have been able to do with civilian-initiated investigations. Because these complaints do not involve police-civilian interaction, appeals to CRC are not allowed.

--Status of Shooting Investigations

Another new feature is a table showing the status of officer involved shooting investigations (p .19). Again, IPR does not include the names of the victims/survivors, even though they are public knowledge. From this table, we can deduce, however, that the non-fatal 2009 shooting of Osmar Lovaina-Bermudez was found justified; four officers were found out of policy in the Aaron Campbell shooting (already public knowledge); the investigations into the deaths of Jackie Collins and Keaton Otis are both finished but PRB hearings are pending; and the shootings of Craig Boehler, Darryel Ferguson, and Marcus Lagozzino are still being investigated. Here, IPR notes that they can participate in these investigations, but in reality that has only been possible under the ordinance (rather than previous courtesy gestures by the Bureau) since April 2010; and their ability to challenge findings is new since then.

As we noted in our analysis of the 2009 report, IPR has wisely chosen not to trumpet the decline in shootings/deaths from 2006 to 2009 (from 7 down to 1) as the cycles are unpredictable until more is done to give officers more training on alternatives to and restrictions on deadly force. The jump to six shootings in 2010 is mentioned casually on p. 19.

The report briefly touches on the 2010 analysis done by the OIR group about the James Chasse investigation, with no summary of the 26 recommendations they made. It also mentions that OIR has been hired to review 16-24 other incidents (p. 20).

--Declinations/Dismissals Information

The IPR also added a section about Internal Affairs declinations, which states that when IA refuses to investigate a case sent to them by IPR they must explain why (p. 12). There are no examples given of why a case would make it past the initial IPR screening and then not receive a full investigation. In the early days of IPR, such declinations were subject to appeal; now that CRC has had zero appeals in a year (and no hearings since July), perhaps that ability should be restored.

One suggestion that came from the Structural Review report that IPR co-opted was to allow a civilian to challenge IPR dismissals. Though CRC had suggested the complaint be routed through them, the IPR created a "request for reconsideration" process, in which Director/Assistant Director who did not review the initial decision looks over it upon protest from the complainant. The report shows that in 13 cases, civilians used this process and in one case the complaint moved forward as a result (p. 9).

--Acknowledging the Elephant in the Room

Also welcome are mentions, however casual and brief, about the limitations on the system due to outside constraints. On page 13, IPR notes that the standard used to determine whether policy has been violated is a preponderance of the evidence, "in accordance with employment law and applicable labor agreements." They also note that not all discipline is final, since arbitration is allowed as part of the labor agreement (p. 18).

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MORE CONSOLIDATION, MORE CONFUSION
Lawsuit Information, Timeliness Goals Removed

While IPR has done a fairly good job of reorganizing the report in a more logical flow, they have removed a few pieces of information that helped make the report more meaningful to those focusing on police accountability.

--Tort Claim (Lawsuit) Information

For example, they have decided that investigations they begin by reading about incidents that were filed as lawsuits ("Tort claims"), as opposed to IPR complaints, will now be considered "community complaints" along with ones phoned, emailed, or otherwise brought to them directly by civilians (p. 6). The reason Portland Copwatch supported IPR taking on Tort claims in its purview is that even if a jury finds an officer violated a person's civil rights, that officer does not necessarily get held accountable by the Bureau. Though IPR does report that they opened files on 6 of 139 Tort claims (4%), there is no indication how many were being actively investigated by IA, or what the outcomes were. There is also no breakdown of why they failed to look into the remaining cases, though they do report that 22 of the 139 Plaintiffs had filed complaints with IPR on their own.

--Timeliness

The length of time the complaint process takes has been an issue since before the IPR was created in 2001. Last year, the IPR consolidated myriad charts showing the various stages of complaints, the lengths of time those were expected to take, and what percentage of the time they met their goals into a single table, which was useful, but still lacked details on how long the investigations were taking. This year the IPR has removed the percentage information and replaced it with the median number of days each stage of the investigation takes-- but they removed the stated goals, so it's difficult to see if the system is meeting benchmarks (p. 33). It appears that 2009 was the worst of the last five years in timeliness, which improved in 2010; IA closed cases in 67 days, down from 83, and the overall process took 247 days (eight months!) as opposed to 344 (11+ months) the previous year. One of the biggest hold-ups seems to be the "review level," which we think includes the Police Review Board, that went up from a 44 day (1.5 month) median in 2006 to almost 109 days (3.5 months) in 2010. IPR would do well to highlight such information as a first step toward getting the timeline back on track. All the report says is that "IPR and the Police Bureau consistently missed most of the benchmarks, sometimes by wide margins."

Using the goals listed in the 2009 report and statistics from 2010, we were able to analyze this data. In short, IPR appears to be over its goals on intake: 27 days instead of 14-21; IA is assigning its cases in less than its suggested 14-30 days (13 days); IA investigations are coming in 16% over its 70 day goal (81 days); Commanders reviewing the investigation take less than their 30 day goal, at 21 days; and the findings being issued should take 45-90 days but as noted above are taking 109 (or 21% too long). The overall goal for a full investigation, adding up these goals, should be 173- 241 days, but the 2009 report puts the goal at 120-150 days; the actual median is 247 days or double that minimum target.

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OVERSTATING OUTREACH?

When the IPR commissioned a 2008 proposal on how to best conduct its community outreach, the consultants failed to emphasize community concerns that outreach be a two-way street; that is, IPR should be as willing to hear what the community has to say about how police treat them as they are explaining the complaint system to civilians. (As noted in our analysis "Consultant's Proposal Puts the PR in IPR," December 11, 2008.)

The Outreach Coordinator apparently isn't sensitive to one of the fundamental concerns of the community about the IPR system: That it is a system where police investigate other police. The 2010 annual report notes that IPR appeared with the police at an elementary school, Morrison Family Services, and in an East Precinct presentation to Slavic leaders (p. 21). One of the organizations listed as being "networked" with is the "Police Awards Ceremonies." While there can be benefits from building community/police relations, having the agency which is responsible for holding police accountable for misconduct appear to be working in conjunction with police further takes the "Independent" out of the IPR.

The annual report combines information reported in quarterly reports and the Director's monthly reports to CRC** about the Outreach Coordinator's efforts. Tellingly, the list of groups visited listed in the appendix (p. 36) are split into "Developing Relationships" and "Networking," with the latter being the longer list.

While the report shows that IPR did listen to the community regarding some barriers to accessing the complaint system-- they are now putting complaint forms in more locations and have gone out of City Hall to do intake on some complaints (p. 22)-- there is no indication of what sorts of concerns about police conduct the various communities have that are unique or shared.

Finally, in touting the support work done by the Outreach Coordinator for the Citizen Review Committee, the report lists the work done supporting the CRC's May 2010 Community Forum (p. 23). While there was staff time spent on the forum, the Coordinator tried (unsuccessfully) to get CRC to have armed security and/or police in the room for fear of disruptions by people with mental illness talking about the 2006 James Chasse beating death, or later angry community members upset about the shooting of Aaron Campbell, an unarmed African American man. None of the IPR staff attended the forum, conceding later that their concerns were unfounded.

**Like the quarterly reports, these monthly reports are not mentioned in the annual report but are available on the IPR's website.

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STILL MISSING: MOST COMMON ALLEGATIONS OVER TIME, MEDIATION AND DISCIPLINE DETAILS

We've asked IPR in the past to include some information that would be helpful for following trends, knowing how often alternative conflict resolution works, and understanding how the system holds officers accountable. They are still failing in these areas.

--Common allegations

As a public service, we have combined here the top allegations of misconduct listed from 2006- 2010 with their raw numbers and rankings. IPR only listed the top 5 allegations (p. 6), where in earlier reports they had the top 8 and even as many as 31. IPR is charged with looking for trends, and we believe their publishing this chart would help focus attention on perceived misconduct in the community. Rudeness has been the #1 complaint every year, with Failure to Act second in 2009-10 and Force third, while Force was #2 in 2006-2008.

--Mediation Short-Changed

Though it was estimated early on that mediation-- where officers and complainants sit face to face with a professional mediator allowing them to express their own sides of the story-- could resolve a substantial proportion of complaints, it has only been used for 2-4% of complaints from 2006-2010 (p. 7). Previous reports showed how many of the mediations were successfully completed and indicated why they did not happen (officer declined, civilian failed to appear, etc); the new report only says there were 14 mediations completed or pending in 2010.

--Discipline Table Still Lacks Clarity

While we continue to applaud the IPR's inclusion of discipline tables in their annual report, there are still details that could make the information more meaningful to the community. While we learn that three officers were terminated, and 14 received time off in 2010 (up from one and 7 in 2009) there is no indication of what the officers did to earn this remediation (p. 6). We know that four of the 17 were the officers in the Aaron Campbell case, but for the most part discipline is not reported in the press.

In addition, we continue to believe that connecting the discipline imposed (totalling 34 this year) to the number of Sustained findings (totalling 39 including 11 civilian and 28 Bureau allegations) would make the system more transparent and let the public know how our officers are being held accountable.

Though there was some information on the Performance and Use of Force Review Boards in the 2008 report, there was nothing in either the 2009 or 2010 reports. While the two boards were merged into the Police Review Board and no hearings were held between September and December, some kind of report on these internal boards' activities would be welcome. In fact, the April 2010 ordinance changes require reporting twice a year on the PRB, and no such report has yet materialized.

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CONCLUSION

As in past years, the IPR's annual report is a mixed bag of useful information, statistics and information that gives a skewed perspective on how effective the oversight system is, and omissions that make analysis--which is of great importance to the community--extremely difficult. While we enjoy being able to present a more full picture to the community each year, we hope that our analysis becomes less necessary as the IPR continues to improve its reporting.

Posted June 7, 2011