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Portland's Review Board Finds Misconduct
in Threats, Adds Advocate for Appeals
New Director Makes Efforts for Improvement,
but Shows Signs of Bias in First Test Case

The struggle to improve Portland's "civilian police review board" continues as common-sense, inexpensive and non-biased ideas slowly get adopted. In early September, the "Independent" Police Review Division (IPR) released a new shootings and deaths in custody report ("PARC 2005"--see p. 6). Since then, the 8-member Citizen Review Committee (CRC) held one hearing and two pre- hearings, sending one case back to the Bureau for changed findings and adding an advocate position to help citizens through the process.

In one sign of progress, the IPR has finally begun producing quarterly reports as required by the ordinance, albeit in the form of a newsletter. However, when new IPR Director Leslie Stevens had a chance to prove herself by supporting the CRC's changed findings, she chose instead to champion the Bureau's inadequate compromise position. In addition, the IPR continues to exert its influence over the civilian body by urging them to maintain illogical processes put in place by former Director Richard Rosenthal (such as time-wasting "pre-hearings" and refusing to send out appeal forms to all complainants).

Case 2005-x-0003: "The next time I see your ex-boyfriend, I'm just gonna shoot the motherfucker"

[Malanaphy and 

Case 2005-x-0003, heard at the Sept. 20 CRC meeting, involved Marsha Anderson and two officers in two separate incidents. Anderson says the primary officer, Detective Mike Malanaphy (#19361), used profanity, threats and excessive force, with a total of 13 allegations. In the first incident, the complaint alleged Malanaphy improperly entered Anderson's home without a warrant (this allegation was "Sustained" by Internal Affairs), tore her apartment apart looking for her ex- boyfriend (Insufficient Evidence[IE]), was belligerent and swore (IE), made a comment about her niece having killed a boyfriend (Unfounded, meaning it did not happen), and used excessive force against her resulting in bruising (IE-withdrawn by Anderson because the officer apologized).

The second incident, just over two months later, found Malanaphy confronting the ex-boyfriend in a storage facility and Anderson witnessing the confrontation. Allegations included: he beat her ex- boyfriend (IE), grabbed him by the pony-tail (Exonerated), threatened to shoot him (IE), and told her "The next time I see your ex-boyfriend, I'm just gonna shoot the motherfucker" (IE).

On September 20, the CRC voted 5-3 to recommend "Sustaining" the finding that Det. Malanaphy threatened to kill Ms. Anderson's ex-boyfriend. Malanaphy admitted he said this, both in the interviews and at the hearing, although he clarified the threat was specifically to shoot him if he were to stick his hands in his pockets. Bureau representatives at the hearing claimed his statement was the same thing as saying "if I see you speeding again, I'm going to have to give you a ticket." Unimpressed, CRC members let the police know that this kind of behavior is not acceptable "Community Policing."

The CRC also recommended changing the finding on whether Malanaphy made inappropriate comments about Anderson's niece to fellow officers from "Unfounded" to "Insufficient Evidence."

Det. Malanaphy, his partner Sgt. Doug Justus (#14080) and Det. Robert King, President of the Portland Police Association, tried repeatedly to introduce photos from Anderson's domestic violence case in the first incident, saying their behavior was justified because of how badly she'd been hurt by her ex-boyfriend. Vice Chair Jerry Spegman pointed out that the photos had nothing to do with the question of whether the officers committed misconduct. The CRC voted 7-1 against looking at the photos.

At the December CRC meeting, Director Stevens called for a "conference hearing." It turns out the Chief agreed to sustain a complaint against Malanaphy­improper use of profanity­but refused to sustain the conduct allegation regarding his threats, only adding a debriefing. Malanaphy apparently said explicitly he did not mean the "warnings" as a form of vigilante justice. However, Malanaphy was making the threats to third parties, so his words were not the same as warning a suspect "don't move or I'll shoot." Also, he entered and searched Anderson's home without a warrant, based on his emotional reaction to her situation. Given these circumstances, the CRC's "sustained" finding was appropriate. Asked if she would defend the CRC's decision if they sent the case to Council, Director Stevens said yes, but she would give her dissenting opinion if asked. The board then voted 4-3 to accept the new findings. This decision is disappointing, and in particular, Stevens' repeated support for the police point of view does not bode well for the future.

CRC Makes Changes to Hearings--But Ignores Advice to Drop "Pre-Hearings"

At Anderson's hearing, the CRC introduced a concept previously proposed by the Mayor's Work Group in 2000: An advocate to help the complainant through the process. Appellant Anderson, the CRC, and the audience benefitted greatly from former CRC member Eric Terrell acting as an "Appeals Process Advisor" who explained the protocols of the Committee prior to and during the hearing. Even though the CRC only proposed changing two of the 11 findings, Anderson declared she was "satisfied"--perhaps a first in CRC's four year history. In the past, even those who have "won" their cases often felt the process was messed up, or did not understand the outcome.

The CRC has also begun setting the room up in a way that makes clear who the members of the CRC are, who the staff is, and who the police are, something we have encouraged for years.

Meanwhile, the CRC continues to block civilians who file complaints from getting the full hearing they are entitled to by the ordinance. They hold "pre-hearings" at which the complainant is limited to a three minute presentation (versus 10 at a full hearing) and the officers rarely attend. Using pre- hearings, the CRC rejected one case in October and sent another one on to a full hearing in November (see p. 3). In September, 2002, former IPR Director Rosenthal pushed the CRC to adopt these "pre-hearings" outside of the City Ordinance's clearly delineated process. The pre-hearings were eliminated by the CRC in June, 2003, after only nine months, when members stated they were unnecessary. Following the resignation of five CRC members, pre-hearings were later re-instituted at the urging of Rosenthal in December, 2003. Six of the nine CRC members who voted to put them back in place had just been sworn in, and thus had never heard a single case.

[IPR Quarterly] A professional mediator, who attended a pre-hearing and a hearing, wrote recommendations on how to ensure that citizens are more satisfied with the appeals process. She suggested the CRC do away with pre-hearings, as they "seem to be an administrative hoop to jump through rather than having real significance to the appellant." She said they should only be continued if they "can be shown to have some substantive purpose." The IPR argues that they have a lot more work to do for full hearings, including bringing members of the Police Bureau to the meeting and preparing a more detailed summary file. But, to paraphrase the mediator, none of this has any bearing on the person who has already been mistreated by police, interviewed, received an unacceptable finding, and filed an appeal.

The CRC is continuing to struggle with a way to present a brief summary of the case at the beginning of each hearing. IPR staff ordinarily reads a one-sentence summary and each of the allegations in the complaint. For those who are unfamiliar with the case, this can be very confusing. For instance, in Anderson's case, the IPR's summary describes the appellants' alleged actions on the scene, but not the police actions which led to the complaint.

For the first two years of the IPR's existence, two members of the CRC were assigned at random to present each case to the rest of the group, as a means to help focus the hearing on the disputed facts. Director Rosenthal and the "new" CRC members eliminated this process, which led to more confusion and reliance on the staff to suggest what motion to make regarding the allegations against the police. In August, the CRC voted 4-3 to re-establish this process, but because the vote was so tight, they did not institute it. A presentation by CRC Vice Chair Jerry Spegman reading the case summary file was well received by the audience, who could finally understand what was going on. Unfortunately, a majority of the Committee later rejected this format as a permanent solution.

Another administrative barrier thrown up by Rosenthal and continued by Stevens is the delay in getting paperwork to citizens. Despite a suggestion by the mediator to get a survey to appellants as soon as possible after a hearing, Stevens insists on mailing out such surveys on a quarterly basis. This is despite the fact that the CRC has held a total of just two hearings and three pre-hearings (regarding a total of only four different cases) in 2005. The IPR still refuses to send out appeal forms with the disposition letter to inform citizens on the outome of their complaint. In both circumstances, they believe civilians need a "cooling off period." This is inconsistent with the IPR's inaccurate yet ongoing comparison of the CRC process to an appeals court. As far as we know there is nothing that prevents lawyers from filing appeals on the same day a court makes its decision.

The CRC also narrowed its "top three" policy issues for review: Towing policy, Policing protests and Training issues. The question of officers driving under the influence (six of 23 sustained findings listed in the 2004 annual report were for officer DUIs--see PPR #36) did not even make the top 20 list.

Internal Affairs: Four Leaders in 10 Months

At the November CRC meeting, the group was introduced to Captain John Tellis, the new head of the Internal Affairs Division (IAD) beginning in October. This marks the fourth person to head the division in 10 months, perhaps one reason IAD is taking so long to respond to the CRC's request to change the findings on case #2005-x-0003, and also why IAD investigations are taking longer than they have in the recent past.

After Capt. Darrell Shenck retired in December 2004, Capt. Ron Beard was in office for less than a year, replaced temporarily with Lt. Jay Drum. Since we began attending review board meetings in 1992, these men all headed the IAD: Lt. Ron Elfving, Lt. Ron Webber, Capt. Bill Bennington (twice), Capt. CW Jensen, and Capt. Bret Smith. That makes Tellis the 10th IAD supervisor in just over 13 years. This is a remarkable amount of turnover in the leadership of a crucial branch of the Police Bureau. The IPR's first Director was in place for three and a half years, with many of the other members of the staff having been on from the beginning or close to it. This is a good argument for letting the IPR investigate police misconduct. The apparent stability and continuity of an independent office over the promotion/transfer/retirement issues within the Police Bureau will improve timeliness.

[IPR Quarterly]

IPR and CRC Try Improving Public Outreach

The CRC recently decided to increase the number of meetings they hold outside City Hall from four to six per year. They held their November meeting at a community school in North Portland, and despite some publicity (including posters by both Portland Copwatch and the IPR), the turnout was minimal. They attempted to draw more of a crowd by inviting community activist (and president of the African American Chamber of Commerce) Roy Jay to speak. He talked about his efforts to give community members a fresh start by doing community service or otherwise removing minor criminal offenses from their records with "Project Clean Slate." While the concept fits a community justice model we'd like to see more of, the only specific tie-in to the mission of the CRC was that the police agreed not to arrest anyone who was coming to be part of the project. Other than this "no-arrest zone," there was nothing about police accountability in his presentation.

The CRC is also continuing to build a contact list for a "Community Advisory Council" which will advise them on community concerns about police accountability as well as receive communication from both the IPR and the CRC.

Contact the IPR at 503-823-0146.
More information on "Clean Slate" is available at www.projectcleanslate.com.

Also see sidebar on other Citizen Review Committee hearings.

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