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But Proposes A Solution Which Creates Other Problems

Analysis by Portland Copwatch, September 20, 2004
Report located at

The Independent Police Review Division (IPR)'s report on the City of Portland's handling of tort claims highlights a crucial loophole in holding police accountable: When a civilian sues the City for police misconduct, the officers do not necessarily face discipline, even if the claim is upheld in court. The 31-page report, released earlier this month, heavily suggests that such cases should be reviewed for possible violation of Police Bureau policies, which could lead to officer discipline. However, its recommendations will likely limit such reviews, rather than expand them.

Currently, "City Ordinance does not allow the IPR to investigate allegations of misconduct raised in tort claims unless the complainant also files a citizen complaint" (p. 3).

The report's two recommendations are to revise that Ordinance, which created the IPR.

1) The first recommendation puts the power of deciding how to handle tort claims into the hands of the IPR Director (p. 23). It may be that Richard Rosenthal, the current Director, thinks that because he is licensed to practice law in Oregon he is qualified to make decisions regarding possible legal liabilities for the City which may be contrary to what the City sees as its best interests. However, Rosenthal's history at the IPR, including his efforts to minimize many complaints by making them "service complaints" instead of investigating them, sidelining the Citizen Review Committee (CRC), and refusing to allow important cases to be heard (such as the Jose Mejia Poot beating case), does not bode well for this unilateral solution. (It also ignores what might happen if a future IPR Director is not also a lawyer.)

Instead of this open-ended change, the new code should explicitly allow the IPR, in conjunction with the CRC, to hire an outside attorney for any matter which may put the City Attorney's office in a conflict of interest. This would allow both for these cases of tort claim/lawsuits to be independently evaluated and for any other conflict between the IPR and the City, or the Citizens and the IPR, to have an outside counsel. It should also explicitly require IPR/IAD investigation of incidents alleged in tort claims and lawsuits.

The specific proposed change to the "Intake" section would replace "The Director _shall not investigate_ complaints and appeals involving matters currently in litigation [or] where a tort claim has been filed" with "The Director _shall develop procedures for handling_ complaints and appeals involving matters currently in litigation or where a notice of tort claim has been filed." Developing procedures for handling such complaints does not guarantee their review. Furthermore, since the original language prohibits the _Director_ from investigating such complaints, it does not prohibit the IAD's review of these cases or citizen appeals. Depending on who the Director is, new protocols could wipe out all of these possibilities at the stroke of a pen with no review from Council or the public.

2) The second recommendation prohibits the Director from investigating, or even initiating an investigation, of cases in litigation or where a tort claim has been filed (pp. 24-25).

The introduction to this recommendation claims that "as long as the IPR has the authority to review, consult, and report on IAD assignment decisions, there appears to be no need for the IPR to have the authority to conduct an independent investigation of a complaint while litigation is pending."

This runs contrary to one underlying premise of the report, which Portland Copwatch has noted for years: That officer discipline becomes less likely as litigation takes years to complete without any internal review, and discipline rarely happens even after the City pays out thousands of dollars for the incident. The report's summary claims that it "recommends that City Code be changed to require all tort claims alleging officer misconduct be referred to the IPR/IAD complaint process" (p. 3). These recommendations do not support this important idea.

It is rare for Portland Copwatch to agree so much with the IPR on anything. Their analysis that "Investigations conducted by Risk Management, the Police Liability Management Section, and the City Attorney's office are focused on the City's potential liability" (p. 15) is absolutely crucial in reviewing this issue. They also rightly note that although conducting internal review of cases in litigation may cost the City more in the short term, it has the potential to save more money and reduce misconduct in the long term (p. 9).

It is surprising that Mayor Katz and Chief Foxworth both reacted to the report by warning Auditor Gary Blackmer (who oversees the IPR) and the Director that their proposal would put the City at risk. A more careful reading of the actual proposal shows that the code changes could have the effect of prohibiting review of potentially serious cases if implemented as written--the opposite of the report's stated intent.

For more information contact Portland Copwatch at 503-236-3065.

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Page posted March 26, 2005