Portland Copwatch Analyzes "Independent" Police Review Division 2013 Annual Report

Table of contents
Introduction
Race, Force, Finding Cops Out of Line
More Flaws in the System in Words and Statistics
What's There and What's Not
Conclusion
Footnotes

Portland Copwatch
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INDEPENDENT POLICE REVIEW DIVISION'S 2013 ANNUAL REPORT: MORE DETAILS EXPOSE SYSTEM FAILURE
by Dan Handelman, Portland Copwatch, October 31, 2014

The Independent Police Review Division (IPR) released its 2013 annual report () on October 22 this year-- the latest any such report has come out (not counting 2005-2006 when no reports were released). The report remains compact despite IPR gaining new abilities (as mentioned several times in the report). This year's report includes over 40 summaries of complaints handled by IPR, representing about 10% of the 409 they received. These summaries are a fantastic addition and are the most telling part of the report-- in fact, they highlight weaknesses in Portland's oversight process that have only been left to speculation in the past. There are still many parts of the process which should be explained more thoroughly, especially the "reviews" of deadly force incidents (which as we noted last year, are not called "investigations," probably for legal reasons) and the Police Review Board (PRB), on which IPR sits as a voting member. However, there are some parts of the report that are improved (including several items Portland Copwatch pointed out in the past). Nonetheless, reading the body of the report or its one-page Executive Summary still does not give as full a picture of accountability as one might expect from a body tasked with independently overseeing police misconduct cases. Portland Copwatch (PCW) has analyzed the new report in detail.

RACE, FORCE, FINDING COPS OUT OF LINE: BIGGEST CONCERNS NOT WELL COVERED

When people are talking about police misconduct, IPR's purview, some of the most prominent topics are racial bias, use of force/deadly force and disciplining cops. IPR's coverage of all these issues is lacking.

--What Does It Take To Prove Racial Profiling In This City?

Last year we noted how there has only been one case of "Disparate Treatment" found out of policy in the entire history of the IPR. That 2007 case remains the outlier, as no "sustained" findings were handed down in 2013 based on 44 allegations, only four of which were fully investigated. The outcomes on those four were findings the officers were in policy ("Exonerated"). Four other cases indicate that the problem isn't just with Internal Affairs (IA), which investigates most community complaints after IPR handles the initial intake.

Three were outlined in the report's "Additional Example Cases" Appendix. The first two were dismissed outright by IPR:

1. When stopped for allegedly not wearing a seatbelt, a man felt the officer was "very racist" but said he was otherwise polite. IPR dismissed the complaint based on police records and the man's interview, apparently without ever contacting the officer or looking for witnesses.

2.When a man said he felt he was given a jaywalking ticket because of his race, IPR used patrol car video to dismiss the complaint, but didn't say why they dismissed it.

3. In a case which garnered international headlines, Latoya Harris' 9 year old daughter was handcuffed by officers for an alleged assault that had happened days before they came to investigate. It's still not clear why this wasn't handled as a racial profiling case, as the question "would a young white girl have been cuffed" was never asked.*-1 That said, IPR indicated when Ms. Harris brought her concerns to the CRC that the complaint had been handled as a "Service Improvement Opportunity" (SIO/Non- Disciplinary Complaint) over the objections of the officers' commander. The report indicates, however, that the case was not registered that way at the Bureau. While IPR maintains it was "in effect, if not name, an SIO," this revelation exposes that IPR was not entirely truthful about the results of its intervention.

The last case worth noting was another in which IPR intervened, featured in the "Findings" section of the report to illustrate how IPR "controverted" the Bureau's decision. Officers had stopped a woman's son for jaywalking and told him to hang up the phone while talking to her. They then visited her apartment due to her concerns that her son had been racially profiled, and told her to "stop playing the race game," or as the officer admitted, "you don't have to play the race card." While it is true IPR stepped in to ask the Bureau to "sustain" the complaint, it was for rudeness, not for racial profiling. PCW has raised the question before: In what other context than calling attention to a person's race would the officer have mentioned the "race card?" In other words, since this treatment was not the same as would have been given a white person, a Disparate Treatment finding should have been sustained.

Another case that went through the IPR's Citizen Review Committee (CRC), also mentioned in the report, involved Mr. McCorvey, an African American man, accused by a cop of being a pimp, smoking crack, and disparaged for living in subsidized housing (none of these three specific concerns appear in the IPR Annual Report, nor Mr. McCorvey's race). He was also cited for jaywalking. These several cases combined should prompt IPR to examine whether jaywalking tickets are disproportionately given to African Americans in Portland.*-2

We've mentioned before the ongoing trends minimizing the concerns of African Americans despite the Bureau's efforts to train officers about institutional racism. While 6% of Portland's population is black, the percentage of African American complainants continues to be 20%. IPR notes, in a welcome but confusing piece of analysis, that the percentage is holding steady-- but that demographic information is "self-reported." (Does that mean they think the number could be higher, or lower?)

It seems as if the claims of racial profiling are not being handed over for full investigation, most likely under the IPR's authority to determine they "cannot prove misconduct" (more below). If merely to improve their status in the community as caring about such issues, IPR should have the allegations investigated even if the result were to be "Unproven" findings.

As with previous years, the Community Outreach coordinator seems to spend a lot of her time doing outreach with the Slavic community, less than 4% of the population which generates an unknown, likely miniscule number of police complaints. We continue to encourage IPR to focus more attention on the communities most who receive the most police contacts and who complain the most. *-3

The Outreach section once again does not include community concerns reported to IPR. It claims that such feedback is printed in Director's reports, even though such comments were not included from March to December 2013 (or for much of 2014 for that matter).

--Deadly Force Investigations Get Little Attention

Even though the Police Review Board is supposed to be putting out more information about Officer Involved Shootings (OIS) and In-Custody Deaths (ICD), IPR's involvement in these cases should merit more than the one-page general summary published in the report. Since, as IPR continues to note, they show up on the scene of the shootings, monitor the investigation from day one, and sit on the PRB reviewing whether the officer violated policy, there should be some detail about the individual incidents and IPR's part in the investigations (er, reviews). The monthly IPR Director's reports include grids featuring the date, case number, victim name, officer names, and status of each deadly force incident.*-4 Yet the annual report, which has an entire blank page in this section, doesn't bother mentioning Merle Hatch and Santiago Cisneros, the names of the "two OIS incidents in 2013 (both fatal)." It's also interesting that the deadly force charts in the Director's Reports didn't mention the "high-speed vehicle ramming that was reviewed as a use of deadly force."

We continue to insist that the oversight system must allow people who have been shot, shot at, or killed by police (or their representative) to have an appeal route when officers are found in policy, just like any other community complainant. Yet IPR continues to print the statement that "policy reviews of officers-involved shootings are not subject to appeal." This leaves the lingering question that if an officer does commit an act of misconduct while shooting or causing the death of a suspect, what happens to a person who files a complaint about that misconduct? (This is a rhetorical question, since we know that IPR has told people they do not have a right to complain about or appeal a police shooting.*-5 )

It's also interesting that the report claims "IPR has the same responsibility in OIS and ICD policy reviews as it does in investigations of community complaints" but also continues to say "IPR does not have the authority to conduct an independent investigation in an OIS or ICD." If Internal Affairs does a poor job investigating a complaint, IPR is allowed, in all other cases, to conduct its own investigation. In other words, there is a cognitive dissonance when it comes to deadly force cases, and both statements can't be true. We've noted many times that the IPR ordinance does not prohibit IPR investigations or CRC appeals on deadly force cases, but feel it is necessary to say it again.

--Force Complaints Still Rarely Found Valid While Internal Bureau Complaints Mostly Are

Bureau-generated complaints, which don't involve community members, are found "Sustained" more often than civilians'. At least one allegation was Sustained in 20 of 45 Bureau complaints, but only 15 of 409 community complaints. Bureau members rarely complain about one anothers' use of force (there have been no Bureau generated force complaints since 2010), and none of the 19 community Force allegations investigated this year were sustained. This brings the 12-year sustain rate on force allegations down to 0.62%. And while IPR seems to be echoing the Bureau by showing a downward trend in force complaints-- from 63 in 2011 to 56 last year and 41 this year, the number of individual allegations is 17% higher than it was in 2010 (73 versus 62).

As a percentage of all complaints, Force dropped back down to 8% from the previous two years' 11%. The total of 41 complaints is below the five year average of 51 per year. However, the number of complaints in general, 409 this year, is on a par with that same five year period.

Civilian complainants, as we've noted in the past, could be given misguided hope by looking briefly at IPR annual reports. Because they show the percentage of cases with one or more Sustained allegations, once again gives a false impression that one might have a 48% chance (15 of 31 investigated cases) to get their concerns validated. But the reality is, only 2% of all allegations are Sustained (19 of 937). Even being generous and looking at investigated cases, the rate is 25% (19 of 75 investigated allegations), or half as frequent as the initial chart implies. But since those findings involved only 15 of 409 cases that came in the door, they should really be reporting that 4% of cases end with one or more sustained findings (the same figure as last year).

With regard to findings, we've long held that since most cases do not turn up enough evidence one way or another (to prove or disprove the allegations), there should be far more "Unproven"*-6 findings than are currently shown. This "he said/she said" finding was used in only 26% of civilian cases this year. Though this is a vast improvement over 2012, which had only 9% "Unproven" findings, officers were "Exonerated" (found in policy) 50% of the time. But narrowing this analysis only to Force complaints, only two (11%) were found "Unproven" while 17 (89%) were "Exonerated." The average use of "Unproven" findings from 2009-2011 was 42%, so it's still not clear why the Bureau is believing officers' stories so much more now than they were in the past.

They may not be getting any true "Independent" analysis from IPR, which in its Dismissals appendix section lists several cases that the civilian intake office threw out based merely on police reports or the civilian's criminal charges (see below).

--Why Officers Disciplined Still a Mystery

A few years ago, IPR began publishing data on how many officers received what kinds of discipline. Thus, we know that two officers were fired in 2013 (up from zero last year), one was demoted (probably Capt. Todd Wyatt-- whose rank was restored by an arbitrator this year), seven were suspended, and 24 had lesser punishments. But what IPR could be doing, which would both better connect their reports to the Police Review Board's and assure both cops and community members that discipline is being doled out fairly and equitably, is to make a chart showing what kinds of misconduct led to what kind of discipline. Now that the "Discipline Guide" has been instituted at the Bureau, such a chart is more important than ever; it could also include the number of times the Chief deviates from the Guide.

Though this may be a result of the time lag between discipline being imposed and the calendar years reviewed by IPR's reports, we noticed that there were only 26 disciplinary actions/resignations in 2013 but 35 cases with Sustained findings (implying that 9 officers were never disciplined). In 2012 there were also 35 findings but 44 outcomes, and in 2011 it was 24 cases and 26 disciplinary actions/resignations. Perhaps there is a way to explain these variances in numbers without compromising confidentiality.

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MORE FLAWS IN THE SYSTEM IN WORDS AND STATISTICS

In addition to the above-mentioned shortcomings, IPR ignores many of the other reasons the community lacks faith in its efforts, including its own structure, how frequently they decide not to investigate complaints, and categorizations/terminology that is not community-friendly.

--IPR Trumpets Changes Despite Falling Short of DOJ Agreement's Promises

IPR uses a full page, and a sixth of its Executive Summary, to address changes made to City Code (in early 2014, not 2013), even though those changes are not everything promised in the City's Settlement Agreement with the US Department of Justice (DOJ). The Agreement came after the DOJ found Portland Police use excessive force against people with, or perceived to have, mental health issues. The Agreement calls for IPR to conduct "meaningful independent investigations," which to interested parties in the community means that they can compel an officer to testify under threat of termination. There is much discussion by DOJ and elsewhere about how compelled statements can't be used to prosecute police, but because there's only been one prosecution of an on-duty cop _ever_ in Portland-- and that officer has been fired-- we want to see power to compel. When Council tried to give IPR that power, backlash in the form of veiled legal threats from the Portland Police Association led them to back down and make it so a PPB employee has to order the officer being investigated to answer IPR's questions.*-7 There's no provision what to do if the Bureau refuses to order the cop to answer, nor what IPR can do if the cop refuses to cooperate.

With that cautionary note, there is an example given in the Appendix of IPR "independently" investigating one case when Internal Affairs refused to do so. The complainant, an attorney, was on the phone with his client and the cops made the client hang up because they only gave him a limited time to contact the lawyer. IPR notes that the criminal case was thrown out because of the officer's actions. However, it's our understanding the IPR did not pick up the investigation on this case until 2014. What we want to emphasize here is that IPR at first seemed to be using its authority only to investigate officer-on-officer complaints (its first "independent" investigation in June 2013 was of a police captain harassing his subordinate), but now appears to be looking at civilian complaints as well.

It's also ironic that IPR touts the Code change directing them to investigate all force complaints (unless there is "clear and convincing evidence" not to), but the Dismissals section reports several being dropped. For instance, a man said officers used excessive force arresting him at his ex- girlfriend's house. While the man pleaded guilty to resisting arrest and assault of an officer, that does not mean the force police used was within policy. (This is the balancing theory comparable to the fact that a person can be charged with resisting arrest even when the underlying arrest is not valid.) We list two more examples in the Dismissing Cases section below.

And while PCW supports the City's expansion of the CRC from 9 to 11 members (mentioned in the report), the City has not implemented the key element in the Agreement to empower CRC-- a provision that they can order IPR or Internal Affairs to conduct more investigation.*-8

Finally, the changes to the Police Review Board are also less than stellar. Even though CRC members are being incorporated onto the PRB, the meetings are still closed to the public, the media, and even the complainant. CRC members who have sat in on two deadly force hearings this year have not reported anything to the Committee publicly about their experiences. PRB reports now contain more information than before including the final decision of the chief, but continue to be hampered by excessive redactions (including, in July 2014, pronouns such as "he" and "she"). Also, the Code orders the Chief/Police Commissioner to explain in writing when they vary from the Discipline Guide, but (a) not if they ignore the PRB's recommendation and (b) not to the public.

--Still Dismissing Overwhelming Majority of Cases, While Underwhelming Minority Investigated

Even though the rate of cases dismissed by IPR/declined for investigation by IA dropped from 82% to 67% (275 of 409) this year, it appears part of the reason is that IPR only processed 82% of cases they received (338). It is likely the rate would have been closer to 80% if they had attended to all the complaints in a more timely manner.*-9 The report says 127 cases were dismissed because of "no misconduct" by the officers, with 43 where they decided they "cannot prove misconduct" by looking into the crystal ball and predicting the outcome of a full investigation.*-10 Nowhere, though, do they add together the 256 IPR dismissals and the 19 IA declines as we have done here. Because IPR has to approve IA declinations, this is a significant statistic.

With the high use of "Service Improvement Opportunities," which make up 11% of all cases (see below), that leaves only 34 of the original 409 complaints, or about 8%, which were investigated. That means a person filing with IPR had a 1 in 12 chance of having their complaint investigated this year (in 2012 it was 1 in 10). The report's only statistic on this matter shows that IA investigated 34% of cases-- but that is of those referred by IPR. This is a consistently misleading statistic which would lead the casual observer to think their chances are four times higher than they really are (8.2% vs 34%).

The dismissal rate becomes increasingly disturbing thanks to the case summaries IPR included this year.

For example:

--A person who recorded a man being tasered in a grocery store was concerned that the police caused the pool of blood he saw under the man when they took him into custody. IPR focused on the fact that the man had been holding two knives to justify all the officers' force, stating about the possible excessive force that "he suffered a bloody nose but was otherwise uninjured." They dismissed the case.

-- A man who was taken away from a bar said police mocked his race and religion and used excessive force. But because IPR determined he was already injured and drunk before officers took him into custody, they ignored that the cops admitted he hit his previous injury while in the police car, causing him to bleed more, and dismissed the case without asking questions regarding the racial remarks.

--A man who complained that officers kept harassing him by pulling his car over, trying to get information and talking about gangs in front of his children had his concerns dismissed. In this case it was because IPR tried to have him meet with a gang officer and he refused. What possessed them to think this was an appropriate response to someone who felt he was getting inappropriate attention from the police?

While we can't be sure, the gang unit's own statistics show them mostly going after African Americans, so certainly the second case, and possibly both cases could also have been included in our section on Racial Profiling.

--Non-Disciplinary Complaints: Are They Making a Difference?

Over the past six years, IA has handled most cases not by investigating misconduct, but instead labelling them as "Service Improvement Opportunities."*-11 This year, 46% of the cases sent to Internal Affairs were handled by supervisors talking to the officers being complained about, rather than seeking discipline for their alleged misconduct. With 46 cases processed this way, SIOs represent 11% of the complaints that came to IPR.

Rudeness allegations continued to top the list of SIOs, at 19 of the 46 or 41% of all non- disciplinary complaints. Even though there is always talk about "improved customer service,"*-12 hundreds of officers have been talked to about their attitude toward civilians, yet this behavior continues.

As with regular complaint allegations (see below), it appears that IPR has begun lumping together various categories, making the tracking over years difficult to impossible. After recently putting "failure to act" and other complaints into a new "Action or Assistance-Inadequate" category (#2 reason for SIOs this year), IPR now has another new category called "Investigation- Inadequate/Improper," which rose immediately to the #3 spot. Officers failing to identify themselves-- which we see as a serious form of misconduct, since it prevents many complaints from moving forward-- was #4, and has been in the top 7 for many of the past 5 years.

Rounding out the top 5 was the clunky "Reports/Receipts/Notes-Failure to Write/File," which again seems it could be serious misconduct in cases where a complaint is filed, as in, an officer covering up his/her misdeeds. Since none of the six examples of SIOs in the report have to do with failing to file reports, it is hard to know whether such malfeasance is skating by with less than a slap on the wrist.

--Portland Copwatch Presents: Top Allegations 2009-2013

As in the past, PCW presents here a chart of the most frequent allegations over the course of five years. We have these data for all 12 years of IPR's existence. This was the first year in which Rudeness was not the #1 complaint, but that may be the result of the aforementioned category crunching being done by IPR. In 2011, "Failure to Act" became "Action or assistance-Inadequate." That category leapt from its former #2 spot to be #1 this year. Force remained at the #3 rank, where it's been for five years, tied with the new "Investigation-Inadequate/Improper" allegation. Another new, and apparently combined, category was #5, "Arrest/Cite-Unjustified/Improper."

It's interesting that Racial Profiling, aka Disparate Treatment, was the subject of 44 separate allegations in 2013, but apparently those made up fewer than 36 cases, so did not make the top list. Ideally IPR would put a larger list showing all the categories in an appendix to give a greater view of why people are complaining.

[Chart of top
allegations 2009-2013 image]

("Inadequate Communication" new in 2011- includes older categories such as "fail to provide info"; "Investigation-Inadequate/Improper" and "Arrest/Cite-Unjustified/Improper" new in 2013)

The Bureau's top five internal allegations this year included the new category of Improper Vehicle Pursuit (#1 with 11 complaints)--oddly categorized as "Bureau complaints" since presumably they were chasing community members; Other Conduct holding at #2; On-Duty Unprofessional Behavior (down from #1 to #3); another "catch-all" new category of "Other Procedure" at #4, and then the cop-out (pun intended) "Next Three Allegations Tied," which could easily have been spelled out in a footnote to help be more transparent about what's going on. Falling off the chart were Off-Duty Unprofessional Behavior (last year's #3), Untruthfulness (which was #2 in 2011 and #4 in 2012), and Use of Position for Personal Gain (tied at #4 last year).

--Who is tracking the "Additional Recommendations"?

Even though there are occasional mentions of recommendations attached to misconduct investigations in Police Review Board reports, it is not clear whether anyone is tracking all of these recommendations. A 2010 Police Oversight Stakeholder Committee recommendation led to a cover sheet used by the Bureau that lists "Training Review, Policy Review, Supervision Review" as options for the persons looking at proposed findings. (We're not sure what happened to the Communication and Equipment categories that were proposed). These are ways to go beyond asking only whether the involved officer violated policy. It seems IPR is in the best position to publish information about these additional recommendations, since IA (and its umbrella, the Professional Standards Division) never publishes public reports. At the very least it would be good to know how often such recommendations are being made, though a chart of the specific recommendations and their outcomes would be best.

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WHAT'S THERE AND WHAT'S NOT

While IPR added a few points of analysis to this year's report and wisely moved some tables back from the appendix into the main text, the report still has shortcomings which PCW has pointed out in the past. Some of these could pose problems as the DOJ Agreement kicks into high gear.

--Timeliness of Investigations Chart: Insufficient Analysis Gives False Impression

One of the key elements of the DOJ Agreement in terms of accountability issues is its strict 180 day timeline for the IPR/IA system to complete investigations of misconduct. Perhaps coincidentally, the median time listed this year for IA to assign, investigate, and receive findings on complaints clocked in at 176.5 days, which would seem to meet the DOJ's requirement. However, a close reading of the chart shows that does not include the lengthy IPR intake investigation, something that took about 18 days in 2009 but now lasts 33 days. Adding these two figures together, the median time for full investigations comes out to 209.5 days, or nearly a full month over the goal.

Because the system is so complex (or "Byzantine" as the DOJ put it), just reading the timeliness chart is a head-scratching chore. An investigated case will be assigned by IA (5 days), investigated (71.5 days), reviewed by a supervisor (12 days), and in some cases heard by the Police Review Board (66 days), a process that lasts either 154.5 days (adding up the median times) or 176.5 days (as stated in the chart). If there are pieces of the system missing, they should be noted in the table, which perhaps could be accompanied by a flowchart to clarify the process for the public. Confusing matters more is that in the middle of the chart, declinations (which take an astonishing 43 days) and "Service Improvement Opportunities" (19 days) muddle up the flow of the full investigations.

IPR still admits that their intake timeline could be improved, but there is no explanation why the addition of three new investigators failed to speed that process up by more than an average of 6 days between 2012-2013. IPR also, perhaps after reading our critique of previous inaccuracy, says in the body of the report that IA Investigations take 10-11 weeks (not 9-10 as previously claimed, though the average over the past 6 years has been 83 days, or 12 weeks).

It also seems given all the pressure from DOJ and the IPR Director for CRC to speed up its appeals process that a proper analysis should be done on how long appeals actually take. The CRC and the community have urged DOJ to relax the proposed 21-day timeline to 60 days. DOJ has said they would be comfortable with 45 days. However, it seems to us that most of the delays in the CRC appeal process happen because they ask IPR/IA to go back and do further investigation, which happened in three of the five appeal cases listed in this year's report. Other delays have been caused by IPR failing to inform the correct parties to appear and failing to provide information to all CRC members in a timely manner, as well as the Chief dragging his heels to attend "Conference Hearings" when he disagrees with CRC's proposed findings.

If all of those factors were laid out in an honest and complete manner in the IPR report, it would become clear that it's not the CRC, but rather the poor investigations, decision-making, and management by City employees that cause the process to drag out.*-13

--Other Information to Foster Transparency: IPR and CRC

One terrific addition to this year's report is the section outlining three cases where IPR "controverted" Bureau findings, which led to Police Review Board hearings. These case summaries include the final outcomes of the complaints in question. (Sadly, one of them was the famous Occupy Portland pepper-spray in the mouth case, which ended with the PRB exonerating Sgt. McDaniel for the act of brutality that sparked national media attention.)

Unfortunately, there is nothing like that level of transparency for other aspects of IPR's functions, including how often they sit in on investigations of officers (and since there were only 34 investigations, it should not be hard to track), their above-mentioned involvement in the Police Review Board and deadly force investigations, and partial dismissals-- that is, where IPR forwards some allegations to IA but dismisses others. In the IPR Screening Decision section, it only mentions that IPR can "revise or add an allegation."

It's also not clear whether IPR actually interviews witnesses on every complaint that comes to them (as indicated in the "IPR Initial Investigation" section). It would be interesting, in part to assist understanding why intake lasts 33 days, to break down how many IPR intake investigations involve gathering what types of evidence.

IPR has made a welcome clarification that CRC "has unrestricted access to IPR's and IA's investigative materials," removing an ambiguity we called attention to last year which implied they could sit in on the investigation. However, it's also true that CRC has to make appointments to view files*-14 and can't actually go into IA or IPR to examine the files without staff intervention, thus the term "unrestricted" isn't quite accurate.

The report also continues to ignore the fact that CRC makes recommendations to City Council, not just the Bureau, the Auditor and IPR.*-15 CRC's Work Groups receive scant attention this year, with the Recurring Audit Work Group's report an exact duplicate of 2012's except for changing the year for its still-anticipated report on IPR dismissals. Since no new Work Group reports were published in 2013, it may not have been necessary, but still we recommend adding a link to the CRC's report page in this annual document.

IPR addresses a serious issue that almost prevented CRC from functioning in 2013. One member who was set to retire stayed on long enough to ensure they had a quorum. When he was replaced and other members added, two of those members resigned within months (as noted by IPR). And though the last line about CRC membership states CRC had its full 11 members as of January 2014, one member resigned in July and has not been replaced.*-16

The report also leaves off the significant fact that the only time CRC met outside of the downtown core in 2013 was when it held its irregularly scheduled retreat in November in St. John's. A good portion of the retreat was spent figuring out ways to encourage the Bureau to share files with CRC over a secure server, something which is still in progress. It also leaves out CRC's request to the IPR Director to change its standard of review from the "reasonable person" standard to something less deferential. The Director's reply in September 2013 was that change would turn CRC into "fact finders," even though in reality they would continue to make recommendations to the Chief about findings.*-17

The report summarizes six CRC appeals, including one held in early 2014. The narratives have improved and, in some cases, include the numerical count of how many CRC members voted which way. Other times it simply says the CRC voted, or voted unanimously. For the record:

--when a woman with disabilities said an officer pushed her unnecessarily, CRC voted 5-2 to change the finding on the force complaint from "Exonerated" to "Unproven" (as noted by IPR);

--when an officer dislocated a bicyclist's elbow when cuffing him, and (eventually) the officer admitted saying he broke his arm but not on purpose, CRC upheld the Bureau's "Unproven" finding on excessive force 7-0;

--when a petite African American woman was mistaken for a taller "Hispanic male," and alleged improper search, force and profanity, CRC voted 6-1 to change a rudeness allegation from Exonerated to Unproven (but would have voted 4-3 to "Sustain" it with a less deferential standard);

--in the above-mentioned case about Mr. McCorvey being racially profiled, where the officer was accused of rudeness, CRC originally voted 4-2 to Sustain that allegation (as the report notes, though they also took a 6-0 symbolic vote under a theoretical less deferential standard). After the Chief argued against that change-- and disparaged Mr. McCorvey by publishing his criminal record-- one member changed her vote, leading to a 3-3 deadlock. Interestingly, the IPR report, rather than noting that Robert's rules says that a vote requires a majority to pass, says that the "CRC Chair exercised his executive power and ruled the [case closed]";

--when the ex-wife of Detective Jason Lobaugh said he made taunting and degrading remarks to her and her new husband on three occasions, CRC voted 5-0 to "Sustain" the unprofessional behavior allegation. While the report reveals a little-known fact that IPR controverted the original finding, leading to a Police Review Board hearing, it does not clearly state what the original finding was nor what the "split vote" of the PRB was that led to the "Unproven" finding CRC voted to overturn. It also leaves off the fact that the Chief agreed to Sustain the finding, only after Lobaugh resigned;*-18

and

--when a man accused a cop of flashing his badge to resolve an off-duty road rage incident near a gym, the officer was so concerned about his personnel record that he urged CRC to change the "Unproven" finding on unprofessional off-duty conduct to "Exonerated," which they did by a vote of 6-0.

This last case, which technically ended by saying the officer did what was alleged but was in policy, led to the Bureau's announced decision to reinstate the "Unfounded" finding, meaning that evidence shows the incident did not happen as alleged. We, however, disagree that it was proven the officer was not at the gym on the day in question, and feel the "Unproven" finding should have remained.

The report significantly leaves out the fact that IPR refused to re-investigate the McCorvey case as Racial Profiling after a 5-2 vote by CRC, based on IPR's belief that CRC is not empowered to ask them to investigate an allegation that was dismissed (or declined). Since the DOJ changes only address whether CRC can ask for more investigation, we hope the City Ordinance will clarify that CRC can, in fact, ask for other allegations to be investigated as well.

--Community Feedback Still Relies on Clueless Portlanders

Even though PCW has repeatedly urged IPR to re-institute its practice of surveying people who actually use their system (which they dropped in 2011), they continue to publish their approval ratings based on the Auditor's city-wide surveys.*-19 Most of the people who respond to the surveys likely have no idea what the IPR is or does. Even if you assume every one of the 3151 complaints from 2008-2013 were from separate individuals, and that they were all residents of Portland (both of which we know not to be true), that still only represents 0.54% of the population which has filed complaints with IPR over a 6 year period. Thus, it is meaningless that IPR receives a 34% "good/very good" rating (a figure which has never been above 50%, by the way). More honest is the 46% "neutral" rating, people who were honest enough to say they had no idea what IPR does. And then there's the "bad/very bad" rating, which at 20% continues to hover where it's been in the last several years.

We continue to note that: (1) IPR's approval rating has not improved at all since they were given more power in 2010, and (2) IPR should do more analysis as to why their approval ratings are so low.

--Mediation Highlighted But Still Rare

As we noted last year, from 2006-2010, between 8 and 25 cases per year were handled with an informal discussion between the complainant and the involved officer in the presence of a professional mediator. But since then, the use of mediation has gone down, with just 7 cases mediated last year (up from 6 in 2012). It's very encouraging that four of the complaints that led to mediation are summarized in the report-- especially since the mediation process itself is confidential, and an officer entering into mediation essentially has the complaint erased from his/her record.

The four cases involved: An officer who became upset and put his hand near his gun because the complainant didn't stop to talk; a person involved in a car crash who felt the officer took the side of the other party when he knew one of the passengers; a woman who said the officer yelled at her and was rude during a seat belt stop;*-20 and an EMT who felt an officer was rude and endangered people's health at a car accident scene.

--When Internal Affairs Declines, What Steps Can IPR Take?

We noted last year that IPR didn't mention they can open up their own investigation when Internal Affairs declines a complaint. This year's report similarly does not list that option, but says the declines are "subject to IPR approval" and lists the above-mentioned case in which IPR picked up a case after IA declined it.

What's unclear, though, is what other forms of recourse IPR has or how often they choose to exercise them. While IPR can "controvert" Bureau findings to send cases to the Police Review Board, what happens when IA refuses to even handle a case as a "Service Improvement Opportunity," as happened in the example given in this year's report? IPR said they found information that was in the Emergency Communications records which wasn't consistent with what the officer wrote in his police report-- generally the substance of the civilian's complaint. But IA said they did not see a policy violation and refused even to process the SIO.

The implication here is that IPR signed off on at least 18 of the 19 declines, including this one, leaving more of that sinking feeling that officers are not being held even slightly accountable for what could be serious misconduct.

--Protesting IPR Dismissals

From 2010 to 2012, 49 people protested the dismissal of their complaints by IPR through an informal process called "request for reconsideration." Last year, we noted that IPR didn't report how many cases actually moved forward after being reconsidered. This year, IPR doesn't even include a number of requests. Even if that number was zero, it should be in the report. Plus, IPR should allow CRC to review this protocol and consider whether it would be better to have a mini- appeal to CRC instead of having a separate IPR staff person take a second look at a complaint rejected by a colleague.

--More Repeat Problems: Tort Claims, Precinct Referrals, Missing Auditor

While we applauded IPR's decision many years ago to examine proposed lawsuits ("Tort Claims") for possible misconduct allegations, we find it hard to believe that only one of 113 such claims led to IPR opening a case file. (Last year it was 4 of 163, before that it was 6 of 140, also low numbers, but still greater than one.) It's little comfort that 16 other cases already had complaints associated with them, as that leaves 96 cases unexamined for misconduct. This is important because even if the officer is found in violation in civil court, (a) the City pays the claim and (b) the finding does not affect the officer's record. We continue to encourage IPR to publish whether that tort claim resulted in findings, and, we'd suggest, what those findings were.

We also reiterate that since IPR continues to pass on a significant number of dismissed complaints for review by supervisors ("Precinct Referrals"), they should be listed as a separate category in the table showing IPR outcomes. They are, after all, listed separately in the appendix including numerous examples. This year they sent 53 cases, or 21% of the 256 dismissals, to the Precincts, up from 9-17% in the past.

Moreover, the primary example given this year says that an officer allegedly made inappropriate statements to a survivor of domestic violence. Rather than investigate the officer, IPR said "the context of the officer's statements was unclear" and dismissed the complaint but sent it to the officer's supervisors. Another example of an astonishing minimization of a community concern.

While the Auditor, whose office houses the IPR, may have visited CRC one time in 2013 to introduce out of town guests, we believe she has yet to appear at a single CRC meeting in 2014. PCW has advocated in the past that the City Charter should be amended to make IPR its own office; until that time, we would hope the elected official in charge of the Division would drop in at least once a year to check in.

--Layout Madness

As noted above, some tables were wisely put back into the body of the report. However, many of the charts are now interspersed far away from the text they mean to illustrate, or in some cases breaking up unrelated text. We suggest that at the very least, references be put into the body of the report ("see table 5," for instance) to help mitigate what could just be a matter of practicality (trying to fit the report on the fewest pages possible).

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CONCLUSION

PCW extends its thanks to IPR for including so many specific examples of misconduct complaints and how they were handled. It clarifies that IPR is making or signing off on decisions which seem contrary to common sense when trying to hold police accountable. We cannot expect that IPR will come up with the same analysis as Portland Copwatch, since they seem to be complicit in allowing officers to get away with bloodying people's noses, racially profiling people, making demeaning comments and failing to accurately fill out reports. In this case, something (the case summaries) is better than nothing, though ideally IPR would be more forthright about police brutality, racism and corruption. While IPR occasionally points out its own shortcomings, its disputes with CRC about the role of these non-professional community members in police oversight are worthy of noting, if only for the readers of the report to weigh in with proposed solutions. We note that a few changes made this year resolved issues raised in the past by our analyses, but hope IPR will go further and include the other kinds of information we're now requesting for the first or umpteenth time.

footnotes

*1-PCW also has concerns that state law should have prevented the fingerprinting and arrest of the child, since she was under 12, regardless of what the then-Directive said.
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*2-A member of Portland Copwatch inquired about this but was told the Bureau doesn't keep demographic data for criminal citations. We believe the information should still be retrievable.
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*3-The Outreach report also includes a list that contains the same organization twice (Partners in Diversity) and mis-spells a number of homeless advocacy groups visited as part of a concerted effort (including Transition Projects and Right 2 Dream Too).
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*4-And despite PCW's complaint that the status reports should be more explicit about what stages are involved in deadly force investigations, no such timeline has ever been printed. Also, as we noted previously, the Annual Report notes the Director's Reports can be found on line but does not provide a link.
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*5-Fred Bryant, the father of Keaton Otis, died in October last year, one year after IPR denied his ability to appeal the "in policy" findings on his son's being tasered simultaneously by three officers, then shot 23 times by police.
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*6-We're glad to report that after 7 years of Portland Copwatch (and others) complaining, the Bureau seems poised to split the "Unproven" finding back into the separate findings of "Unfounded" (evidence shows incident didn't occur as described) and something equivalent to "Insufficient Evidence."
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*7-And as we've noted elsewhere, this system is not very different from the old IPR code, which called for the Bureau to order cops to answer questions one at a time.
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*8-This could change soon now that the Agreement has been formally introduced into the Court and IPR has started examining code changes. However, that does not negate IPR and IA balking at several CRC requests for more investigation since the DOJ made its findings in September 2012. The DOJ Agreement as written also apparently locks in the CRC's "reasonable person" standard of review and prohibits appeals of shootings and deaths cases though PCW and others in the community will continue to urge those limitations be removed.
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*9-We projected the 275 dismissed cases in ratio to the 338 processed to guess how many would be dismissed with 409 processed and came up with 335, or 82%.
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*10-IPR did lower its use of "cannot prove misconduct" back down from 25% to 17%, but we feel this is still too high.
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*11-PCW also continues to object to the use of the term "Service Improvement Opportunity" rather than the clearer, more descriptive, "Non-Disciplinary Complaint." PCW continues to appreciate IPR's using the words non-disciplinary complaint in their definition of this complaint outcome.
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*12-Since most people who complain about police encounters did not call them for assistance, it's a misnomer to talk about them as "customers"; this further supports removing the term "Service" from the name of non-disciplinary complaints.
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*13-While we reject the analogy that the CRC Appeals should be looked at the same as an Appeals Court process, since there was no "lower court" of community members deciding the original finding they're considering, it is worth noting that Appeals Courts can take years to return opinions. Therefore, giving the all-volunteer CRC 60 days is in itself a highly accelerated timeline.
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*14-In late 2014, some of the case materials were made available to CRC members on CDs/DVDs, but there are still apparently parts of the files that they have to review in the IPR or IA offices.
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*15-It's also been played down greatly by IPR that the CRC is supposed to "review and advise IPR and IA on the complaint handling process." With the numerous changes to the IPR ordinance since 2010, there has never been a CRC Work Group formed to review IPR and IA's protocols, only CRC's.
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*16-IPR's use of time framing in the report inconsistently limits some things to calendar year 2013 and in other places includes information from 2014.
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*17-CRC also asked the Judge to adjust the DOJ Agreement to allow for a less deferential standard in February, 2014; we shall see if that request makes it into the 2014 report.
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*18-We fully support IPR reporting on Lobaugh's decision to resign in the report, after the City Attorney interrupted CRC in an apparent effort to be sure they didn't discuss that resignation at their meeting.
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*19-The report once again links to the general area of the Auditor's site, rather than directly to the Survey.
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*20-It's important to note that IPR dismissed several cases in which the person's only complaint was they'd been improperly ticketed; we believe it was the addition of the rudeness allegation that led this case to go to mediation. However, because a judge or jury only makes a finding about a person's alleged criminal behavior, they do not address whether the officer's conduct was in or out of policy, IPR should reconsider their procedure... or at least indicate that they held the cases open until they reviewed court transcripts for more information.
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Posted October 31, 2014