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Portland Copwatch
a project of Peace and Justice Works
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Portland, OR 97242
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Portland's Police Review Board Still Needs More Power
analysis of consultant's report on the "Independent" Police Review Division
by Dan Handelman, Portland Copwatch
February 12, 2008

A long-awaited assessment report on the "Independent" Police Review Division (IPR)--Portland's "Civilian Police Review Board"-- was released on January 24. It contains a lot of useful information, with some basic concerns about the IPR system community members have been pointing out for years. This includes that the IPR doesn't do independent investigations, its 9- member Citizen Review Committee (CRC) doesn't have enough power, the public doesn't know the system exists, and those who use it are far less satisfied than the officers who do. It reveals that officers are sometimes not disciplined even after they admit to or are found to have violated Bureau policies. And, perhaps most clearly, it shows that the system is nearly impossible to understand and tends toward "behind the scenes" work instead of being open and transparent to the public.

The 137-page report by nationally recognized expert Eileen Luna-Firebaugh contains at least 3 dozen recommendations, many of which can immediately bring improvements if adopted. Most significantly, it suggests that the IPR should be doing independent investigations not only on its own, but when directed to do so by the CRC. The current ordinance allows such investigations, but the IPR has never done one in its entire 6-year existence.

Luna-Firebaugh further instructs the IPR to assign a staff person directly to the CRC and have them hold more appeal hearings, issue more policy recommendations, and do more outreach.

On the other hand, the report doesn't go far enough. The mistrust the report wisely notes that the community has for the system is based on the IPR's dependence on the Police Bureau. Currently, all investigations of civilian complaints go to the Bureau's Internal Affairs Division (IAD). The report's recommendation is for some investigations to be done by civilian investigators, not all.

The report highlights the "easy" relationship between IPR Director Leslie Stevens and the IAD. In fact, the day after the report was released, Stevens announced she was planning to leave her post to head up the Police Bureau's "Office of Professional Standards." (This brings to mind the old Looney Tunes cartoons in which a wolf and a sheepdog both punch in at the same time clock every day.) While the move to increase independent investigations has much to be said for it, the institutional problem of this cozy relationship is the kind of thing that brings at best a 30% satisfaction rate for citizens who use the IPR system. There is no mention at all of the conflict of interest inherent in the City Attorney advising both the Police Bureau when they get sued for misconduct and the IPR/CRC when they investigate misconduct.

There are many golden nuggets, including the same recommendations some in the community have made for years for additional "findings" of Policy Failure, Supervisory Failure, and Training Failure, presenting reports to Council annually, and compelling officer testimony to the CRC as a condition of employment.

It is clear that Auditor Gary Blackmer is reluctant to adopt many of the report's 35-plus recommendations. However, when the IPR was created, Auditor Blackmer resisted including shootings and deaths in its purview. He now prides himself that the IPR's hiring of outside consultants from the Police Assessment Resource Center (PARC) has led to major positive changes in the Bureau's shootings and deaths policies.

The City Council presentation of this report will be held on Thursday, February 28** at 2 PM.

You can download and read the full 194-page report (with appendices) or the executive summary by going to the mayor's website at
Direct links are
for the executive summary
for the full report.

For an 8-minute video companion to this document, see .

Below is an analysis of what we see as the most compelling parts of the assessment.
They address:
Overview/IPR Lacks Community Confidence;
Officers not Disciplined;
Independent Investigations;
Power to Compel Testimony;
Empowering the CRC;
Independence/Conflicts of Interest;
Standard of Proof;
Mediation; and
Jump to theConclusion
Report page numbers appear in parentheses.

Overall: IPR Lacks Community Confidence

The IPR was created in 2001 after a Mayor's Workgroup and Auditor Blackmer each put out reports highlighting problems with the previous system, PIIAC. The problems included community perception that the system was not fair or thorough, that the police were not improving as a result of the work done, and the investigations were not done in a timely manner. The report notes that "many of the weaknesses described by the Auditor in 2001, prior to the development and implementation of the present system, still exist and additional weaknesses now exist as well." (46) Luna-Firebaugh adds that there has been no marked improvement in quality of investigations or community satisfaction. (114)

Luna-Firebaugh noted that some officers not being held accountable for misconduct, the IAD not fully investigating, and the IPR not conducting independent investigations all lead to a lack of community confidence. (53)

Luna-Firebaugh struggled to analyze four sets of statistics she was given regarding the "Sustain rate," or how often officers are found guilty of misconduct. She expressed that Portland's "statistics have been sometimes difficult for this Consultant to understand, and it must be almost impossible for the average Portland citizen to understand as well." (78, echoed on 48) She notes that such confusion also leads to reduced public confidence in the system. (51)

She repeats twice that regardless of the differences between her statistics and the IPR's, the general perception of the IPR is the same across the boards, with no survey showing public confidence over 30% in the IPR. (51, 78 & 94)

Part of the concern is a lack of transparency and communication on the part of the IPR. There has been no annual report presented since 2004 (49) and, Portland Copwatch would add, the three existing reports were never presented to City Council. Luna-Firebaugh found a general lack of awareness of the IPR throughout Portland. Many people surveyed were unaware they were listed as complainants by IPR, as they had not formally filed a complaint. (78)

The inability or unwillingness to do thorough, independent investigations and hold officers accountable is described in the report by David Fidanque, executive director of the ACLU of Oregon, as a "lack of curiosity." He feels the CRC seems to have the attitude that "asking questions is bad, we may have to do something about it." (83) Luna-Firebaugh cites the National Institute of Justice (NIJ-part of the federal Department of Justice), which defines dedication to a successful civilian complaint system as "Intellectual curiosity that seeks to 'get to the bottom' of what has occurred." (83)

This is remarkably similar to a critique of the Portland Police Bureau levelled by consultant John Campbell, who found wildly disproportionate numbers of African American citizens being excluded from Portland's "Drug Free Zones" in a 2007 study. He wrote, "What we find more troubling than the disparity itself is an evident lack of institutional curiosity at the Bureau for determining, early and aggressively, if such a disparity existed."

The IPR assessment report notes that although the Auditor is in charge of the IPR office, City Council "did not divest itself of authority to hold the IPR system accountable." Luna-Firebaugh reminds the four elected Commissioners and the Mayor that they have the authority to change the ordinance if the IPR is not meeting the community's needs--which the report proves, it is not. (111)

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Officers not Disciplined

The consultant evaluated 25 cases investigated by IAD. She found 9 were "seriously inadequate," criticizing Internal Affairs for a failure to fully investigate, and Bureau for failing to hold the officers in four of the cases "culpable." In those cases, officers admitted wrongdoing, but they were "Exonerated," meaning, technically, their actions were within Bureau policy. (11, 64-65 &114)

Chief Sizer explained that in those cases, commanders didn't feel discipline was appropriate, or officers weren't familiar with the directives. (66) Certainly many people in the community have been told that ignorance of the law is no excuse. The report shows that the police have a different system of justice. (Or, perhaps, they are like comedian Steve Martin, who said "I forgot armed robbery was illegal.")

If those officers should have known about the policy and their supervisors failed to inform them, the new finding of "Supervisory Failure" could at least address the situation. (66, and see "Findings" section below)

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Luna-Firebaugh notes that transparency is about "the public's right to know the public's business" (75) However, the IPR staff took pride in doing policy work "behind the scenes." They indicated that IPR goes quietly to the Bureau and says "fix this and if you don't, we will." (56)

Auditor Blackmer echoed this sentiment, quoted in the Portland Tribune (and the report) saying "the Portland model avoids the posturing that comes with a public 'wrestling match'." The consultant notes "While the emphasis on policy and procedural development is laudable, the 'behind the scene' approach subverts the move toward transparency that is a fundamental premise of civilian oversight." (56) Furthermore, she says, citing oversight expert Douglas Perez on the "learning function," that taking policy review "behind the scenes" to avoid public discussion fails to build public confidence. (57)

We would further add that policy issues that are resolved "behind the scenes" could well be contrary to the wishes of the public, to whom both the Auditor and the police are supposed to answer---but we don't know since these negotiations are top secret. (Or, as country singer Charlie Rich would say, "No one knows what goes on behind closed doors.")

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Independent Investigations

Portland currently has what is known as the "Auditor model" of oversight, referring to the review board staff person who reviews Internal Affairs activity--not the elected position filled by Blackmer in Portland. The report notes, "An Auditor model may incorporate aspects of other models, first among them independent investigation of complaints, and an empowered citizen board. This hybrid approach has been followed by many progressive cities, and has proven to be successful in enhancing community involvement and confidence." (10)

The IPR is allowed to conduct a form of independent investigations by the current ordinance. To do so, one of the following circumstances has to exist:
--IAD is not adequately investigating a certain category of complaint (use of force, for example)
--IAD is not appropriately investigating a particular officer
--IAD is not completing investigations in a timely manner

Luna-Firebaugh notes that IPR has never conducted an investigation, even though situations arose that met some of the criteria. (34, 90 & 113)
--IPR's 2004 report indicated there were issues surrounding particular officers. (91) There were six officers with four or more complaints investigated against them at IAD, so they all should have been contacted under the Early Warning/Early Intervention System (EWS/EIS). However, only two of the six were notified of a problem. (IPR 2004 annual report p. 78)
--While timeliness has improved, cases are supposed to be done in 70 days, or 10 weeks. In 2006, 54% took longer than 10 weeks, with one case taking 557 days to close (67 & 114). In 2007, 16 of 65 investigations took over 70 days, as long as 213 days. (114)

Furthermore, Luna-Firebaugh gives good reasons for the IPR to take over some cases from IAD. In 25 cases she reviewed for the study, 9 were "seriously inadequate." (114) In three of the cases, no civilian witnesses were interviewed (65), and the four cases noted above in which officers were not held accountable for violating policy. (114)

As a result, the consultant recommends a few things. Most significantly, she says the IPR should conduct independent investigations in "issues of community concern." (127) We take this to mean high-profile shootings, deaths, use of force with serious bodily harm, racial profiling, illegal searches, and when there is "high emotion in the community," or a conflict of interest--which define the parameters for review systems in Albuquerque, Boise and Eugene, OR. (50, 129, 130 & 134)

Luna-Firebaugh further recommends that the CRC should advise the IPR when the above criteria are met, since the ordinance is vague about when the threshold is met. (12, 114, 117, 120)

She notes that the IPR could be effective and have high satisfaction rate if its independence is actual and not in writing. (114) Perhaps one reason the public doesn't trust the investigation process is that, the consultant found, at intake complainants are told about mediation (ability to talk one-on- one with an officer, but the complaint doesn't get investigated), service complaint (in which a supervisor talks to the officer, but no investigation is done), but not about the possibility of a full investigation being conducted. (83) In 2006, 63% of complaints were dismissed by IPR and only 10% were investigated by IAD. (64) (This brings to mind South Park's Officer Barbrady, telling panicked townspeople "OK, people, move along, nothing to see here.")

Luna-Firebaugh sums up the issue: "To have the specific statutory [sic] power to conduct independent investigations in certain circumstances, and those specific circumstances exist, and to do nothing is demoralizing to the public and can cause a lack of public confidence that the system is working as claimed." (114)

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Power to Compel Testimony

In her discussion of various forms of review systems, Luna-Firebaugh quotes expert Sam Walker. He emphasizes that the way to ensure officer cooperation with a Police Auditor is to order them to answer questions as condition of employment. This can be done under the "Garrity rule" which means officers give up Fifth Amendment rights against self-incrimination in exchange for not being able to be prosecuted for their testimony. (45) The report recommends that, regarding the CRC and appeals, "The CRC should request that the City Council grant subpoena power on an ad hoc basis" and "the City Council should order that the PPB members testify as a condition of employment." (121)

This question is crucial also for the IPR, since the current ordinance requires them to ask questions through an IAD investigator (section 3.21.120 [d]). We recommend that the IPR and CRC be granted the power to recommend discipline, which would then allow them to directly use the power to compel testimony and actually conduct independent investigations.

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Empowering the Citizen Review Committee (CRC)

In its early days, the CRC held two to three meetings a month; they heard 29 appeals in 2002, but a total of 8 in 2005, 2006 and 2007. The consultant concludes that "[The] reduction in CRC activity seems to be a result of an increase in the power of the IPR." A past CRC member said that the resignation of five members in 2003 was the result of a struggle over direction of staff: CRC wanted to direct IPR, and they lost the struggle. (104, more discussion under "Independence," below.) Since that mass resignation, the IPR instituted guidelines on "Working together effectively" which, in essence keep the CRC from questioning the limits of their powers.

Luna-Firebaugh does not address other issues which have led to the low number of appeals: in 2002, the IPR stopped taking appeals from people whose complaints were declined/dismissed; they changed the definition of a "Service Complaint" (which we call the "dirty fork" finding) so that the civilian no longer has the right to refuse that outcome; and IPR refuses to include appeal forms when advising people of the outcome of investigations. We believe declined cases should be eligible for appeal, citizens should have a say in Service Complaints, and that appeal forms should go out with all "disposition letters."

City employees may have said more about the way the IPR handles its Citizen board than the dozens of citizens who called Luna-Firebaugh to express their frustration with the system, and the nine who filed appeals and all said they were not at all satisfied. (47-48) Here are two quotes attributed to City Council staff members:
--"IPR...advance[s] a system that the CRC doesn't know...the IPR now operates very independently from the CRC...[so] very few people know that the CRC exists, or engage with this system." (104)
--"CRC is hand picked by the IPR to be a yes group." (106)
One IPR staffer added: "CRC [is] not instrumental to the work of the IPR; they are taken to meetings and such." (105)

ACLU of Oregon Director Fidanque told the consultant that the CRC seems to have been "set up 'on purpose' to be a passive body with no authority" (60) and that they are "hamstrung" when it comes to policy review. (102)

One way in which the CRC could assert itself and be more independent from IPR would be for the City to approve of the consultant's recommendation for CRC to have its own staff person to facilitate its needs. (12 & 125)

We support the consultant's concept of allowing City Council to appoint five members of the CRC directly (121) but caution that this could lead to a majority of "political appointees" out of nine members. Given the extra workload the enhanced CRC will have with all these recommendations implemented, we suggest expanding CRC to 11 or 13 members, even if they are not all required to be a part of every appeal hearing.

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Independence / Conflicts of Interest of IAD and City Attorney

The assessment report quotes Sam Walker on making an "audit model" effective: "A police auditor's office must be fully independent of the law enforcement agency under its jurisdiction." (45) Certainly the fact that the IPR and CRC are completely dependent on the Portland Police Bureau for information and investigations means the Portland system does not meet this standard.

Luna-Firebaugh indicates that she found no overt bias on the part of IAD investigators. However, she found one third of their investigations to be inadequate. Her survey results show 89% of officers but only 56% of citizens thought the investigators were unbiased. (149 & 160) More than one in five civilians said investigators discouraged them from filing complaints. (97 & 151) The lack of thoroughness and imbalance of citizen and officer satisfaction, combined with how often officers' words are believed over civilians' (see "Findings" section), is indicative of an institutional bias even if it is not overt in the individual case files. When the IPR was being created, the attorney for Minneapolis' police union told Willamette Week "internal affairs sometimes pursues agendas based on internal politics, [while] civilian investigators 'are very thorough and don't seem to have a bias one way or another.'" (March 14, 2001)

But also, a more detailed history of the mass resignation of five CRC members in August, 2003 helps illustrate another way in which IPR and CRC are not independent. The CRC voted in early 2003 to hear an appeal regarding the police beating of Jose Santos Mejia Poot off a Tri-Met bus two days before he was shot and killed by other officers in a psychiatric hospital. The IPR staff, Auditor and City Attorney gave numerous reasons the CRC could not hear the case: They had rejected the appeal over 60 days before the vote (but no policy, law, or court case explicitly would stop them); the appellants did not have "standing" as third parties (but Mr. Mejia was dead and could not appeal on his own); the case involved a shooting (but it involved a beating--and the ordinance does not strictly prohibit the CRC from hearing a shooting case). Failing all these arguments, the staff refused to aid the CRC in any way. Several months and several similar struggles later, the five members quit en masse.

The CRC attempted at that time to find an independent attorney for advice, since the City Attorney clearly had a conflict of interest, trying to protect Portland from a lawsuit while advising the CRC how to best resolve cases of alleged misconduct. This conflict still exists, and we suggest the City look at a charter change to make the IPR fully independent.

We also add that Walker states that "A police auditor may reject any and all demands by the law enforcement agency to see draft copies of public reports." (45) Currently, the IPR shares drafts of all reports with the police before publishing them, to the extent that the CRC's proposal for changes to the Bureau's Tow Policy opened with a letter from Chief Sizer instead of one from the IPR or CRC.

In addition, one major flaw in the PARC assessments of shootings and deaths in custody is that they are limited to reviewing cases two years after the fact, so that the deadline for filing lawsuits has passed. PARC recommendation 5.15 calls for an funded independent civilian oversight body for shootings and deaths cases. The PPB deferred this idea to the IPR, which did nothing. PPB created a "Use of Force Review Board" with 7 police and 2 civilians selected from a pool, but that does not address PARC's recommendation. The city needs to follow PARC's suggestion and fund citizen oversight of shootings and deaths cases.

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Until August, 2007, possible outcomes of investigations by the Bureau, known as "findings," were Sustained (the officer committed misconduct), Unfounded (the incident did not happen as described), Exonerated (it did happen but was within policy), Insufficient Evidence (there is not enough evidence to Sustain or Exonerate). At that point, the IAD and IPR collaborated to merge the "Unfounded" and "Insufficient Evidence" findings into a new category, "Unproven." The consultant's report notes that by their standards and the NIJ's, this puts Portland outside the mainstream of most other systems in the country, making it nearly impossible to create comparisons. (72-73 & 115) (Or to again quote Steve Martin, "Those French have a different word for everything!")

Luna-Firebaugh recommends that Portland return to the standard findings, as a benefit to the community and the police. There will be no ambiguity or confusion about the meaning, as with "unproven." (73 & 116)

She further suggests that City Council direct the Bureau to add the findings of Policy, Supervisory and Training Failure. (13 & 118)

While much is made about the "Sustain" rate in Portland, we believe that it is just as important, if not more so, to look at the "Insufficient Evidence" rate (known as "Not Sustained" in many other cities). Since many cases of alleged police misconduct boil down to "he said/she said," one would expect a good number of "Insufficient Evidence" findings. In many other cities we have information about, the rate of "Exonerated" is about equal to "Not Sustained," at about 33% each. In the years 2002-2004, the averages in Portland were 32.1% exonerated but only 22.6% Insufficient Evidence. IPR has informed us that the rates for 2005 and 2006 were 12% each year for "Insufficient Evidence, " with "Exonerated" averaging roughly 38% and "Unfounded" 40%. With "Sustained" rates (by IPR's calculation) of 4% and 13% in those years, this means that the officer's word is weighted more than the citizen's in roughly three quarters of the cases investigated. This trend should be addressed by IPR and CRC.

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Standard of Proof

In Portland, the CRC is limited to reviewing misconduct cases on appeal by a "reasonable person" standard, restricting them to decide whether a "reasonable person could make the finding in light of the evidence." A lawyer interviewed for the study said "no one seems to know people don't understand what that standard means....everything is stacked against them." (104)

Luna-Firebaugh notes that this standard is too difficult, and the more commonly used "Preponderance of the evidence" is easier. (119) Albuquerque and other cities' hearings use preponderance of the evidence. (104) While she does not offer an explicit recommendation, it is clear Luna-Firebaugh is suggesting that Portland get in line with most other administrative processes which use the easier standard (preponderance).

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The consultant made numerous comments about the fact that she supports mediation in general, but thinks the IPR uses it in too many circumstances. Cases in which officers used profanity, which is excluded by policy, possible legal violations, and use of force complaints can and/or have been sent to mediation in Portland. (83)

It is important for Portland to limit officers' access to mediation: while service complaints and investigation outcomes stay on their records and can lead to performance reviews, mediations do not. One IPR staffer estimated that "maybe 40% of the time... officers do it just because they want to get [the complaint] off their record." (88)

Luna-Firebaugh recommends that mediation should be offered on all discourtesy and procedural complaints, but not for use of force, legal violations, or for officers with a pattern of misconduct. (118)

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Luna-Firebaugh notes that lack of timeliness has an adverse impact on satisfaction level for both officers and citizens, with their approval of timeliness both hovering at about the 50% mark. (67 and 148-163)

In addition to the general guideline that Internal Affairs investigations should take 10 weeks, the Bureau's "Performance Review Board" requires a case to be sent to them within 10 weeks to consider discipline. IAD Captain John Tellis told the consultant "the 10 week deadline is not a 'drop dead' deadline, rather it is a
guideline." (67) (Which brings to mind the movie "Pirates of the Caribbean" when Captain Jack Sparrow asks a crewman why they didn't adhere to the Pirates' code, and he answers "We figured they were more actual guidelines.")

On the other side of the equations, citizens are severely restricted to deadlines. Civilians are out of luck if they do not file complaints within certain deadlines (60 days for most complaints, 6 months for serious complaints), or appeal by a certain time (32 days--which includes time to request and receive an appeal form from IPR, or 60 days if the Director finds the appeal has "merit"). Clearly it will benefit everyone if IPR takes over investigations and speeds up the process; in the meantime, civilians' deadlines should be relaxed so long as officers' are as well.

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Overall, the assessment report encourages Portland City Council to take a more active role in ensuring the IPR and the CRC have community credibility, by giving them the tools they need to hold individual officers and their supervisors accountable, make policy recommendations, and communicate with and involve the public. "In any city that has an involved citizenry and an activist community, a lack of transparency and community involvement in the process can have serious negative repercussions." (10) We continue to suggest a fully empowered system such as recommended by the Mayor's Majority Work Group in 2001, and believe a charter change to give IPR/CRC its own legal counsel will greatly enhance the system's credibility.

While the current system has its strengths, and the police are making strides forward by training all officers with Crisis Intervention Team training and revising traffic stop procedures, it can only make Portland a better place to live to have a fully functional, trustworthy and independent oversight system to keep these improvements in place and continue making more.

**-Feb 28 hearing cancelled, Portland Copawtch and others held a "People's hearing" instead; new dates: "Work Session" Tuesday, March 18, 2008, 12-2 (no public input) and public hearing Wednesday, March 19, 2008, 10:45 AM, Portland City Hall 1221 SW 4th.

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Posted February 12, 2008, updated February 29 and March 12, 2008