Portland Copwatch Analyzes "Independent" Police Review Division 2011 Annual Report

INDEPENDENT POLICE REVIEW DIVISION'S 2011 ANNUAL REPORT SHARES LITTLE ANALYSIS, USES NEW STATISTICS BUT OLD EXAMPLES
by Dan Handelman, Portland Copwatch, July 30, 2011

The Independent Police Review Division (IPR) released its 2011 annual report on June 29. (It can be found at http://www.portlandonline.com/auditor/index.cfm?c=27727&a=402840.) The report, one of the most important documents on police accountability in the city of Portland, continues to get smaller each year (now 29 pages, down from 36); this year, there is almost no analysis of some troubling trends, and most of the report is just cut and pasted from 2010 with new statistics inserted. The community depends on the IPR as a "window into the Police Bureau," but when most of the examples of complaints they include are exactly the same as in the previous year's report, it's hard to get a sense of new trends. To be fair, IPR does have a short section on Occupy Portland, though it emphasizes receiving 53 commendations and only 14 complaints (plus 14 the IPR apparently opened based on City Council testimony from Occupiers). The lack of analysis is particularly disturbing because use of force complaints were up by 50% (from 41 to 63), with individual allegations of force up 87% (from 62 to 116). It's amazing the report came out a month late (the Director promised after the 2009 report was published to have it out in May of each year), since the bulk of it is almost verbatim the same as 2010's report.

NOW MISSING, AND STILL MISSING IMPORTANT ANALYSIS AND INFORMATION

In addition to the scant analysis, several pieces of information that appeared in the past have gone missing, while others that disappeared last year did not return despite our feedback to IPR.

--Use of Force

The increase in Use of Force complaints, for instance, could be a result of the complaints from Occupy Portland. Not only does IPR not ask what might be the cause of the uptick, there is no sense of why the Occupiers complained, just a note that they testified about "police conduct they experienced or witnessed." A related fact, that not a single allegation of use of force was sustained in 2011 (despite 26 allegations being investigated), is not addressed in the report.

--Shootings Investigation Status

In addition, even though IPR is now deeply involved in observing Internal Affairs investigations into police shootings, the table showing the status of those investigations is not included in this year's report. There is merely**** a mention that such information can be found in the IPR Director's monthly reports to the Citizen Review Committee (CRC).

--Racial Profiling

Once again, IPR does not raise a concern that African Americans make up 20% of complainants in a city that is 6% black. And, for four years in a row (and 9 of IPR's 10 years of existence), zero Disparate Treatment (racial profiling) allegations were sustained. Portland Copwatch (PCW) continues to keep cumulative data on such information, even though IPR has stopped publishing it. As noted last year, the only Disparate Treatment allegation ever Sustained was in 2007; it is no wonder with these numbers and this "lack of institutional curiosity" (to quote John Campbell's 2007 study on Drug Free Zones) that many people in the African American community do not trust IPR.

--Community Feedback

Last year IPR stopped printing information on the survey they sent out to people who actually use the IPR system, as opposed to the City-wide survey from the Auditor which is now its sole benchmark. In fact, IPR has stopped conducting its own survey to save staff time. This year, the IPR's City-wide approval rating sank one point to 33%,. It's interesting that their highest approval was 47% in 2009, prior to the major changes made in City Code in March 2010. PCW continues to encourage IPR to survey people who actually use and understand the IPR system for more accurate feedback.

--Appeals of Investigated Cases

There is no mention of how many people filed appeals after receiving findings on their complaints. While it is mentioned that CRC held one "Case File Review" (but no details, such as the case number or the fact that it had to do with a man who says an officer used excessive force when Tasering him), it is our understanding that at least one other appeal was filed in 2011, heard in March 2012, also involving alleged excessive force.

The report does note that CRC held an informal review of the Lindsay Hunt case, a former recruit who blew the whistle on her supervising officers. In typically vague fashion, though, the report states that "CRC expressed concerns about the need for continued improvement [on] workplace issues raised and the manner in which they were investigated." The community can relate to information about officers who used excessive force, hid evidence, and took free food at convenience stores-- but these vague statements make IPR and CRC sound even more toothless than they already are.

--Low Chances of Investigation

The report continues IPR's frustrating lack of analysis on how many people who file complaints actually end up having their case fully investigated. 33 of 373 complaints were investigated, or a total of 8.9% of processed cases, a 1 in 11 chance up from last year's 1 in 13; IPR's report only shows investigations as a proportion of cases they decide to send to Internal Affairs-- which is 28%, misleading public expectations by a factor of three.

--Non-Disciplinary Complaints

The Bureau's use of non-disciplinary complaints (appropriately described this way again by IPR, but formally still known as "Service Improvement Opportunities," or "SIOs") continues to make up the majority of case handling decisions once IPR sends a complaint to the Bureau-- 57%. Need we note again that if IPR had the power to directly compel officer testimony, currently limited by the Portland Police Association's contract, IPR could be making these decisions themselves? While "Coercion/Intimidation/Threats" popped up as the fourth most prevalent use of SIOs, IPR does not examine why (a) so many such complaints are being filed or (b) why something so serious is being repeatedly handled as a low-level complaint. ("Threat to arrest" was the #2 SIO in 2009; this category is now part of "Coercion/Intimidation/Threats.")

--Non-Sustained Findings

Because it is unlikely that the majority of complaints investigated will result in a finding of "Exonerated," meaning the office was within policy, we've hoped to see that number trend downward. However, 50% of findings in 2011 were "Exonerated," while only 33% were "Unproven" (meaning either not enough evidence to prove/disprove or the incident did not happen as described). "Unproven" findings were at 51% in 2009 and 42% in 2010; analysis of this trend is needed to ensure that police aren't being wrongly let off the hook. The Taser case reviewed by CRC, for example, ended up with the finding on excessive force being changed from "Exonerated" to "Unproven."

--New Ratings (Which Are Not Findings)

There is also still no mention of how the Bureau and IPR are using their ratings about Communication issues, Management issues, Training issues, Equipment issues and Other policy- related issues -- or whatever variant of those recommendations from the Stakeholder Committee they adopted last year.

--Outreach

One item dropped from the 2010 report was the list of organizations that the Outreach Coordinator / IPR "worked with to build community trust." The narrative of the Outreach section gives a fairly good picture of that work; if anything, this is one omission PCW can live with. On the other hand, the Outreach coordinator is listed as "gathering concerns from community contacts [which] the IPR director publicly reports at CRC meetings," with no examples of the kinds of feedback given. A quick glance at the November 2011 Director's Report shows, for example, that "North Portlanders request a return to 'community policing model' where officers live in the area they patrol." We continue to have concerns that the Outreach coordinator's efforts include side-by-side appearances with police, confusing community members who wish to see a fully independent oversight system. Perhaps we should not complain, since IPR is, in reality, fully dependent on the Bureau, so these appearances are more reflective of reality.

--Timeliness

One notable exception to the lack of analysis is the report noting, albeit in its appendix, that with regard to timeliness, the two parts of the process that have slowed down since 2008 are IPR's initial investigations (up to 33 days, from a low of 18 in 2009) and the scheduling of Police Review Board hearings (now at a staggering 110 days--nearly four months-- more than doubled from 53 days in 2008). Note: The report's analysis states "the two exceptions are the median days for IPR investigations and Board scheduling"; the other analysis above is Portland Copwatch's. Considering that IPR did a detailed study on this issue in 2011 (also mentioned in the appendix), it's unfortunate that this issue, of concern both to community members and officers, is not addressed in the body of the report. The one mention is in the "Administrative Investigation" section, which claims that IA takes approximately ten weeks to complete their work, which the table confirms as a median of 65 days, down from 81. There is no benchmark to tell if that timeline meets expectations. By continuing to omit the aspirational goals, the IPR fails to hold itself or the Bureau accountable.

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SAME OLD SAME OLD

Sure, IPR copied and pasted examples of dismissals, "Service Improvement Opportunities" and precinct referrals, and used an almost identical example of a dismissal made because "it is more likely than not that no misconduct occurred and additional investigation would not reach a different conclusion."* But they changed that example from an out of state driver who complained about being stopped for speeding to an out of state driver complaining for being stopped in the High Occupancy Vehicle lane. Other lazy repeats have greater consequences.

--Sustain Rate

For instance, IPR continues to note only the percentage of cases with "one or more Sustained findings" --down to 26% from 37%, instead of showing that just 17% of all _allegations_ were sustained (15 of 90 findings). But as we've said before, the 2008 Luna Firebaugh report suggests looking at "sustain rates" based on all complaints coming in the door. That number, adjusted to only cases with sustained findings compared to all cases actually handled by IPR in 2011, would be 9 of 373 or 2.4%, while the sustain rate on allegations is just 1.5% (15 of 1023). These numbers are comparable to 2010, but very low for a police oversight agency.

--Dismissal Rate

In addition, IPR and Internal Affairs (IA) dismissed or declined an even larger portion of complaints than ever before. The report notes that their 267 rejections mean "IPR dismissed 72% of the complaints reviewed," but fails to add in the 17 IA declinations, bringing the total dismissed cases to 284 of 373 or 76%. Except for 2007, that number has been climbing up steadily from the 44.6% dismissed in 2002. Again, one wonders how much this affects community perception of IPR.

--Sustain Rate for Officer-Initiated Complaints

IA still seems to do better at sustaining complaints made by officers than those of civilians; 25 of 44 allegations made by cops against cops were sustained, for a 57% sustain rate, only slightly different than 2010's 58%.

--IPR's Abilities

IPR once again listed its ability to conduct independent investigations in its introduction (and added that claim to the section on IA declines), but no such investigation has been done in its ten year history. Oddly, the introduction no longer indicates that IPR is involved in investigations of shootings incidents, only referring to their ability to respond to the scene and participating in "policy reviews." The new report does mention the new sections of the ordinance relating to the CRC that passed in December 2011.

It is fairly deep into the report (p. 10) before IPR mentions it can contravene a Bureau finding, triggering a Police Review Board hearing (but doesn't say how often it has done so). A few pages later, IPR mentions that they participate with IA and the Training Division "on all aspects of OIS (Officer Involved Shooting) and ICD (In-Custody Death) reviews"; IPR doesn't say how often it sits in on other "high interest" cases; it would do well to advertise which cases it is working on. Perhaps the mention that they participated in the investigations of six cops charged with DUII in 12 months (Oct 2010-Sep 2011) is supposed to suffice; while that is important, those are not cases of officers mistreating community members.

--Limitations Listed

While carried over from the previous report, it is worth seeing the IPR referring to "employment law and applicable labor agreements" which govern the Bureau's standard of review ("preponderance of the evidence") and officers' ability to appeal discipline through the arbitration process. Because these external factors influence the IPR's abilities, the public needs to be reminded of them.

--Citizen Review Committee

The Citizen Review Committee is unfortunately again described as an "Advisory Body" despite its ability to recommend changes to Bureau findings without IPR input, as well as its newly granted ability to make policy recommendations directly to the Bureau. CRC's voluminous and detailed policy reports, such as one on Service Improvement Opportunities, are summarized as existing, but no examples of their recommendations are given. Even where the report says information can be found on line, the IPR's website is organized in such a confusing fashion, a specific page name (such as "CRC Reports") should be included for ease in retrieving documents. For example, the report suggests that notes from the CRC's June 22, 2011 forum where community members "addressed CRC regarding police conduct" can be found on line. It took us about five minutes poking around to find the notes. (Also, last year CRC listed how many people attended their public forums, this year they did not.)

In the section describing how City Council changed CRC-- by "clarifying" the appeals process, extending their terms from two to three years, and the above-mentioned policy recommendation power-- there is no mention that CRC was wildly disappointed by Council's refusal to change their standard of review from "reasonable person" to "preponderance of the evidence." CRC members have publicly complained of being limited (and confused) by the "reasonable person" standard imposed on them. Despite community support, Council did not change that part of the ordinance, in part at the behest of the IPR Director and her boss, the City Auditor. Perhaps coincidentally, after disrespecting the Committee's wishes so blatantly, the Auditor has not attended a single CRC meeting.

One mildly useful addition to the IPR report was a list of various presenters who came to CRC meetings; two listed are from the Bureau (K-9 unit and Gang Resistance Education And Training), one from the consultants working on deadly force reviews (OIR Group) and one from the community (Native American Rehabilitation Association). We continue to encourage CRC to hear from more community groups to get a better sense of what is going on "on the ground."

--Mediation

Mediation, a process for officers and complainants to talk with a professional mediator present, once again has no meaningful representation, such as numbers of successful and failed mediations, or whether the officer of civilian failed to show, for instance. Total number of mediations, and number as a percentage of all cases, is shamefully low at 5 cases/1% of cases handled. IPR needs to seriously examine why this important process to reconcile complaints is so under-used.

--Lengthy IPR Investigations

One unintended consequence of the IPR's cut-and-paste is at least one instance of misleading information; in the table showing IPR Screening Decisions, a footnote carried over from the previous report states that IPR's preliminary investigations "take a few weeks," whereas the reality is it takes a median of 33 days (nearly 5 weeks), up from 18 in 2009 and 27 in 2010.

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OTHER INFORMATION

All of this is not to say the report lacks information, just that the information could be more detailed and better explained.

--Requests for Reconsideration

One tidbit of interest, 15 people asked IPR to reconsider their cases after they were dismissed, and as a result, at least one outcome changed; last year it was one of 13. We still feel the "request for reconsideration" should be expanded to more of an appeal of IPR dismissals and IA declinations, and the process should be formalized in protocols and the ordinance.

--Tort Claims

Perhaps responding to our criticism last year when lawsuits ("tort claims") were rolled in with all community complaints, IPR added two items. The first is a footnote on the "Administrative Investigations" table letting the public know that one of the 34 cases reviewed by IA was from a 2009 Tort Claim. The other is a "Tort Notice" category on their "Sources of Community Complaints" table. Unfortunately, this table is buried in the appendix, but it does show that 7 of this year's complainants prompted cases drawn from legal paperwork, rather than complaints filed directly with IPR. Meanwhile, the body of the report shows that IPR opened files on six cases (involving the seven people mentioned) of 140 claims filed, almost exactly the same as in 2010, with 26 other Tort Claims already the subject of complaints made by the Plaintiffs (slightly up from 22 last year).

--Top Allegations 2007-2011

Since IPR has stopped printing comparative charts for the top allegations of misconduct, we have created a chart for the public good. Number one complaint Rudeness ruled the pack again, with Failure to Act second and Force third in each of the last three years, while Force was #2 in 2006- 2008.

  ("Inadequate Communication" is new in 2011-
    includes older categories such as "fail to provide info")

--Police Review Board

While the IPR Report mentions that the Police Review Board (which they confusingly call "the Board" instead of "the PRB" or "the Review Board") publishes reports twice a year, it does not summarize how many cases were considered, how often the PRB recommended discipline, how often the Chief accepted their recommendations, or whether any of their policy proposals are being implemented. Since IPR is a voting member of the PRB, it seems there should be more than a cursory mention of this associated oversight body.

--Discipline Table

IPR still does not connect the information about discipline imposed with the kinds of misconduct that led to the discipline. Since the Auditor's report released in May 2012 suggests a "discipline matrix," we again suggest that such information would help both the community and the rank-and- file officers understand the connections. Two officers were fired in 2011** (down from 3 in 2010), and 10 received suspensions (down from 14). Three officers resigned or retired while under investigation; IPR notes that not all such voluntary terminations are related to the complaints, but it still would be good to know what business is left unfinished. After all, once the officer is no longer an employee, doesn't that mean their employment record is no longer confidential?

We also noted last year that there should be an explanation as to why, for example, there are 23 instances of discipline listed while at least 40 allegations (25 community, 15 Bureau) were sustained. Were some disciplinary actions still pending at the end of the year? Were multiple allegations sustained against the same officers? IPR should let us know.

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CLARIFICATION ON "CANNOT PROVE MISCONDUCT"

In our analysis of IPR's 2010 report, we wrote regarding concerns about IPR's 18% of dismissals under "cannot prove misconduct" that "the ordinance outlines several reasons IPR may dismiss a complaint but 'cannot prove misconduct' is not one of them." In reality, the revisions to the ordinance, which took effect in late April 2010, did give the IPR director the ability to dismiss a complaint if "it is more likely than not that additional investigation would not lead to a conclusion that the officer engaged in misconduct." We still feel that this is a subjective reason to dismiss and that most civilians would rather get a final finding of "Unproven"*** at the end of an investigation where officers are interviewed than a letter of dismissal basically shrugging off their case as not worth the time. CRC members are already (rightfully) challenging IPR on the use of the summary phrase "cannot prove misconduct" to describe the use of this part of the ordinance. This year, the "cannot prove" category applied to 16% or one in six cases dismissed, down only slightly.

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CONCLUSION

We'd like to report that IPR changed course and began expanding its annual report into a more meaningful document, but alas, PCW has once again had to do much of the analysis that one would expect the oversight agency to provide on its own. IPR's report continues to provide the community with crucial information, it is just not thorough enough, and certainly does not go far enough in honestly evaluating either police conduct or IPR's functions to build the community trust that has now eluded this system for 10 full years.

* IPR could easily have used an example of a case featured in one of their quarterly reports, but they once again barely even mentions the fact that they publish quarterly reports in the annual report.
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**One was Sgt. Scott Westerman, who was fired after two road rage incidents and misrepresenting himself to get license plates for his car.
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*** Citing this example does not mean PCW endorses the use of "Unproven" to combine the previous categories of "Unfounded" and "Insufficient Evidence"; we continue to support the Luna Firebaugh and Stakeholder reports' recommendations to return to those former possible findings.
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**** The original posting of this analysis stated "There isn't even a mention that such information can be found in the IPR Director's monthly reports to the Citizen Review Committee," but there is a mention on p. 14. PCW regrets the error, but still encourages the IPR to print the chart and to include details on how to find the Director's reports on the IPR website.
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Posted July 30, 2012, updated July 31, 2012