Legacy of Minimizing Citizen Involvement May Persist;
Only One Hearing Held in Three Months

[Rosenthal heads for 
the hills]
Richard Rosenthal, whose exploits this newsletter has covered since he moved to Portland to be the first Director of the "Independent" Police Review Division (IPR), has taken a job in Denver, CO and will be leaving in June. Meanwhile, the Citizen Review Committee (CRC) continues to spend most of its time revising its protocols, having heard only one case in 2005. Rosenthal rejected an appeal on a previous case, returned incomplete by the Police Internal Affairs Division (IAD). Also, he and his boss, Auditor Gary Blackmer, rammed through a change to the IPR ordinance ostensibly allowing them to review legal claims about police as complaints.

While the original ordinance creating the IPR in 2001 carved out many responsibilities for the CRC, Director Rosenthal and Auditor Blackmer have used administrative and legislative changes to minimize citizen involvement. Despite current plans to create a "Community Advisory Council" (CAC) the CRC may be hopelessly disconnected from the community.

For instance, previous work groups of the CRC (1) reviewed police policies and proposed changes, and (2) discussed outreach efforts for the IPR/CRC program, providing broad, ongoing and meaningful activity. The current work groups are set up as short-term to (1) revise the procedures for appeal hearings on cases of alleged police misconduct and (2) create the CAC.

The CAC is envisioned to include "leaders" of community groups who are stakeholders in the issue of police accountability. This reflects the kind of citizen involvement Portland Copwatch proposed for the appointment of review board members orginally in 1993 and later in 2002, when the Director and Auditor took away the CRC's powers to choose their new members. However, the CAC as proposed will meet only twice a year, once to review the IPR's annual report. It appears that this group could become a rubber stamp and a fig leaf for the IPR to hide behind when their connection to the community is challenged. Even though CRC members are and have included members of Neighborhood Associations, the editor of a homeless community newspaper, and members of other community groups, Director Rosenthal has indicated that he wants to have the CAC reflect those kinds of organizations but keep the CRC free of what he calls "agendas."

What will likely happen, as the IPR continues to whittle away at the CRC's powers and duties, is that Portland will be left with the 9-member IPR staff and the CAC, but no civilian review board. The creation of a work group seeking to revise appeal hearings is based on the premise that hearings do not satisfy anyone's needs and should be overhauled. This could mean the end of the appeal hearings and, since policy reviews are now being done by the IPR staff, the CRC will be left with no purpose. Three important reasons for the CRC to hold hearings are: 1) To give the complainant a "day in court" and the chance to change the outcome of their case; 2) to reveal both to the CRC and the public policy and training issues which may need attention, and 3) to make the process of police accountability transparent.

Given the opportunity to work with a new Director, we hope the City Council, now led by a new Mayor, and the public will step up to create improvements to the review board. No public review of the system has been done in the four years since the IPR was created.

Tort Claim Proposal: Vague Code Change Passes Quickly Through Council

The IPR's report on "Tort Claims" suggesting that they treat lawsuits as complaints was touted as a way to close the loophole allowing officers found guilty of misconduct in civil court to escape administrative review and discipline for the same incidents (PPR #34). On March 30, the Director and the Auditor presented their proposed changes to Council, who passed them unanimously despite Portland Copwatch's concerns.

We noted, for instance, that the code change merely allows the Director to create a procedure for handling tort claims (notices of intent to sue), and furthermore prohibits the Director, who otherwise has the power to investigate allegations of misconduct if the police refuse to do so, from investigating those claims. We also pointed out that this marked the third piecemeal change to the ordinance since 2001, while the community has proposed dozens of changes which have fallen on deaf ears. In addition, the proposal doesn't address the complexities that will arise if a complainant's attorney advises a client not to participate in an administrative review.

The police themselves weren't at the hearing, so the Auditor assured Council that both they and the City Attorney's office had dropped their previous objections. CRC Chair Hank Miggins, a friend of Blackmer's, was the only person to testify in favor of the amendments.

Pepper-Spray Protestor Case Squelched as Police, Director, Auditor, City Attorney Sidestep Request of CRC

The Director, with help from the Auditor and City Attorney, decided to put an end to the appeal process in case #2004-x-003 regarding Bill Ellis, a protestor who was pepper-sprayed in the face and arrested after standing on a sidewalk (see PPR #33). They claimed his participation in the lawsuit resulting in a $300,000 settlement (PPR #34) precluded his ability to appeal. However, IAD did not perform the actions requested of it when the CRC returned the case to them in May, 2004. Specifically, they did not re-investigate three excessive force complaints (#1-3) along with a false arrest complaint (#4).

The IAD "completed" their second investigation without speaking to the appellant in late 2004. Their investigation on question #4, whether the arrest itself was inappropriate (since the appellant was not blocking traffic), came back with an "Unfounded" finding.

The Bureau then also investigated a new allegation, finding "Insufficient Evidence" that the officer, Leo Besner (#27981) filed a false report on the incident--meaning Besner may have done so. However, this allegation was not part of the CRC's recommendation to the IAD.

The Director, in consultation with the Auditor and City Attorney, decided that the complainant had waived his right to appeal as part of the settlement with the City. This curious interpretation appears to have happened without consulting the appellant or his attorney, not to mention the CRC. The dismissal of this case contradicts the Director's proposal to treat tort claims as complaints.

When Ellis' Attorney, Steve Sherlag, wrote to the IPR requesting an appeal, Director Rosenthal did not share the letter with the CRC. He presented the case in the "Director's report" instead of using other established protocols for the CRC to decide whether to accept an appeal.

The Director cited the settlement's provision that Ellis will not make any further "claim" based on the incident. Rosenthal said he considers the complaint a "claim" because if Besner were suspended without pay, it would cause him economic hardship. But suspension would not benefit Ellis or his attorney­it would be a disciplinary matter to prevent such misconduct in the future.

As with the case of José Santos Victor Mejía Poot, who was beaten and two days later shot and killed by police (see PPRs #24&28), the Director has prohibited the CRC from hearing a case important to the community.

One minor benefit of this case is that the CRC decided to move up its review of crowd control tactics (by a narrow 4-3 vote). That review may improve policy and training, but will do nothing to hold accountable the officers or supervisors who were responsible for the misconduct at the protests involved in the lawsuit.

[Officer Lile at Jan. 05 
CRC hearing]

Case 2004-x-007: Police Rough Up Attorney and Friend for Flunking Attitude Test

In January, the CRC held its first full hearing in 7 months, featuring case #2004-x-007, in which attorney Heather Bissel and her friend were roughed up by police while observing a traffic stop. Bissel and three friends ("the appellants") witnessed police stopping a black man driving in a car with a white woman. The officers yelled at the appellants to move, and apparently two of them did not move fast enough for the officers. City Code allows for officers to restrict access to any area in cases involving significant risk. They cannot, however, order civilians to stop observing them from a safe distance.

Officer Jason Lile (#38941), who testified at the CRC hearing, showed his bias by accusing Bissel of being on an "anti-police crusade" and trying to bring up her previous activities in other cities. (He was cautioned on those comments by most of the CRC and IPR.) He also referred to the driver in the traffic stop as a "gang member" rather than simply a suspect­a person accused of Driving While Suspended, not a gang crime.

The appellants were arrested and charged with Interfering with a Police Officer, charges which were later dropped. This particular statute has been challenged in court and a similar statute, regarding "following a lawful order" of an officer, was recently struck down by the Oregon Supreme Court (see article).

Thus, the allegation that the officer may have conducted a false arrest, which was deemed "irrelevant" by the IPR, is relevant and should be investigated. This sounds like another case of "flunking the attitude test," where an officer unhappy with a civilian's behavior makes up a reason to take them into custody.

Allegations of excessive force include that the officer smashed the face of Bissel's companion into the sidewalk while he was handcuffed, tackled Bissel and jammed her face into the cement, resulting in scratches and bleeding. The appellant's friend, who apparently was asserting his right to observe by asking exactly where the officer wanted him to stand, ended up receiving 4-6 stitches; Officer Lile said there was no excessive force because he didn't use "pepper spray, a Taser or baton," and the appellants weren't " hit, kicked, or kneed." This seems to be a recurring defense by the Bureau: rather than asking whether the amount of force used was a reasonable amount to accomplish an official purpose, they simply list the violent actions they did not use.

Much of the CRC's discussion had to do with two items which had no direct bearing on whether the officer used excessive force. The first was whether the original stop was a "high risk" stop (implying the presence of weapons) or an "unknown risk" stop.

The second focus was on the fact that the two people who were thrown to the ground by a police officer had been out having drinks prior to the incident. Because they were not brought to Detox (for being "unable to care for themselves" or " a danger to themselves or others"), it seems this was just a means to discredit them in order to justify upholding the Bureau's actions.

The IPR had recommended that the excessive force findings be changed from "Exonerated" to "Insufficient Evidence," but the Bureau refused. The CRC ultimately voted 4-3 to uphold the Bureau's original findings, in part because the Director actively discouraged them from sending the case back for more investigation. More than one CRC member mentioned that they thought the officer's actions were "reasonable." However, the CRC is supposed to be judging whether a reasonable person, given the evidence, could come to the same conclusion as the Bureau. While we still find this standard too restrictive, it is not about judging whether the officer's actions were reasonable, but whether they were within Bureau policy and whether the finding reflects that.

As a side note, the CRC refused to review medical documents they had requested at the December pre-hearing, explaining they had wanted the documents to be produced earlier. The ordinance (section 3.21.160[B]) specifically allows the CRC to consider new information as part of a hearing. When this was pointed out to the CRC members, they still refused to re-open the case.

Case 2004-x-009: Domestic Violence is Bad, So Is Police Violence

The other case heard as a "pre-hearing" in December involved officers who came to the apartment of a man who may have shoved his wife during an argument in their home. We support prosecuting people who engage in domestic violence. However, the CRC did not focus on the man's allegations that an officer punched him in the chest (found "Exonerated with a debriefing"), that officers pulled a gun on him despite his being unarmed ("Insufficient Evidence"), and that they broke his wrist and did not offer medical attention ("Unfounded"--meaning it did not happen as alleged). Instead, the CRC members repeatedly questioned the appellant about whether he had hit his wife, who was apparently in a different room the entire time the officers were present in the apartment.

The CRC voted 6-1 against holding a hearing. In contrast to Bissel's case, the allegation that officers falsely arrested the appellant was considered relevant, but the officers were "exonerated" for the arrest.

New Members Inducted; CRC Retreat Reveals IPR Agenda

In February, City Council inducted three new members of the CRC. Marcella Red Thunder, an auto mechanic, nominated by Commissioner Sam Adams, Mike Bigham, a former Port of Portland police officer, and Jerry Spegman, a former attorney who works on anti-smoking campaigns. Ric Alexander, who had been on the review board since 1999, and who on rare occasions spoke out about problems with the IPR system, was not granted a new term.

[Blackmer and 
Rosenthal at Council 2/23/05]
During the CRC's February 26 retreat, the Director and Auditor made disparaging statements about Portland Copwatch and member Dan Handelman. Invited to give input, Handelman pointed out that one reason the IPR may not have credibility is that civilians might not trust a system in which police investigate other police. Blackmer blurted out: "I don't know that anyone in this room has done more to undermine the credibility of police accountability than Dan Handelman," changing his claim to target Portland Copwatch when called on the personal attack. Director Rosenthal, who had made comments about the IPR not wanting to "waste time" replying to emails from PCW, chimed in that "Dan just wants to change the ordinance because he didn't like it...he's argued against it from the very beginning."

While Handelman and PCW have issues with the IPR structure, most of our suggestions are to make the IPR more open, transparent, accountable, and citizen-based using the ordinance as written. Meanwhile, the Director and the Auditor have now changed the IPR ordinance three times with limited public input. Just who has been unhappy with the IPR from the beginning?

The outcome of these misleading and possibly slanderous statements is that Handelman has asked for mediation with Rosenthal and Blackmer. They agreed. One CRC member and one other member of PCW will attend the mediation.

Similar to the power imbalance between the police and the community, those in charge of the IPR have unlimited time to explain their perspective on the review board, while people who have studied these systems for years have only three minutes a month to offer a view that comes from community experience.

In addition, since January the IPR and CRC:

--Created rules to increase public participation. The public will now be allowed to speak prior to all CRC votes, whereas previously public comment was restricted to the end of meetings and hearings. The IPR will now be required to forward all emails addressed to the CRC to all CRC members. Previously, the Director and the CRC Chairperson rejected "unsolicited correspondence."
--Adopted new protocols for processing complaints at the IPR and Internal Affairs. Many concerns raised by members of the public were included in the final adopted document, created by Deputy Director Pete Sandrock.
--Released a CRC report analyzing 45 cases, fifteen declined by IAD, fifteen "service complaints," and fifteen which were investigated. The CRC supported the choices made in all the cases, though they found one case in which "the booking photo showing the complainant's bruises" was not present, two in which investigations were not thorough, and three findings which they found inappropriate. Perhaps most disturbing was Sandrock's comment that the IPR "defers to the Bureau's interpretation of its own policies."


Sidebar information:

Outgoing CRC member Ric Alexander, and one of the three remaining original CRC members, in his final comments, spoke to many of the issues we have raised about the IPR and CRC:
--There are far fewer appeal hearings now than there once were
--There is less citizen involvement than there once was and IPR staff does work that volunteers used to do
--A long list of policy issues has been generated but not addressed
--The majority of the CRC is made up of appointees of the City Council.


Another item of note from the retreat: The review board's packets included only one short section of the overall ordinance, and one member of the CRC admitted that she had never read the whole ordinance.


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