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Police Review Board Finally Under Scrutiny
More Hearings Held; Booted Member Reinstated;
CRC Still Lacks Community Connection

The biggest news about the Independent Police Review Division (IPR) is that the audit promised since its inception in 2001 is finally underway. At the same time, the IPR's Citizen Review Committee (CRC) has now heard more appeals on misconduct cases in 2007 than they did between September 2003 and December 2006. They began to collectively challenge Bureau findings in June. Meanwhile, the IPR released both a Use of Force Report with help from CRC members, which lacked important information (see article, right), and a CRC-driven policy recommendation about towing cars (still stuck on the Chief's desk as of August 21).

In July, long-absent CRC member Remi Ogouma was replaced by Marcella Red Thunder, who last year was not afforded the opportunity to reapply when Auditor Gary Blackmer "figured" she didn't want to continue on the board (PPR #41). Blackmer made the request for City Council to replace Ogouma three weeks after the CRC sent him a letter asking she be removed for lack of participation.

Review To Focus on Structure, Practice and Grassroots

[Eileen Luna-Firebaugh] In late June, the City hired Eileen Luna-Firebaugh to head up the audit of the IPR. She is an associate professor at the University of Arizona/Tucson in American Indian law, who works on tribal policing issues. She also was employed by three California police review boards. Council promised in 2001 to review the system "in about a year" (PPR #24), and set money aside in June, 2005 (PPR #36) but waited two years to take action.

Luna-Firebaugh visited Portland twice in July, conducting interviews with City employees, elected officials, police officers, and grassroots activists. Her focus seems to be on making sure that the review board is utilized and respected by the community, and that its performance is fair and consistent. The final report should be released in January, 2008.

We encourage readers who have had experience with the IPR to contact Ms. Luna-Firebaugh-- whether you filed a complaint or appeal, or decided not to use the system. Call us at 503-236-3065 or email copwatch@portlandcopwatch.org for more info.

Case #s 2007-x-0004 and 0005: "You are from Mexico, the Constitution does not include you"/Arrested for calling 911 on the Police

Hector Rivera was the appellant in both June appeals. Rivera said that in the first incident, officers told him that "you are from Mexico, and the Constitution does not include you." In 2004, Rivera told the CRC an officer said "if you don't like the laws you can go back to Mexico" (PPR #32). (Rivera noted both times that his family is from Puerto Rico, not Mexico.) In another 2004 case, an African immigrant said officers told him "This is not Africa, and you don't have a right to the Constitution" (also PPR #32).

In the first new case, Rivera was walking near the "day laborers' corner" in SE Portland. When he refused to open his car for Officers Phillip Blanchard (#26848) and West Helfrich (#29194), he claims they made the "Mexico" quip. He told the officers to "go back to Germany" and to arrest him or let him go. They let him go. Over an hour later, they saw him a few blocks away and arrested him for jaywalking at the original corner. He says that when they uncuffed him, they told him to bend over more and show some "ass."

The Citizen Review Committee stated an intent to use more "Insufficient Evidence" findings for allegations where not enough evidence exists to prove or disprove what happened. And they did--on the allegations regarding the "Mexico" comments, that the cops threatened to arrest Rivera for not having ID, and that they said they "could shoot" Rivera if they wanted, all of which were originally "Unfounded" (meaning there was no evidence to show they happened). CRC member Robert Milesnick dissented on all three votes (7-1, 5-3, 5-3). On the last allegation, Chair Hank Miggins voted no, claiming that the CRC's standard of review, that they consider whether a "reasonable person, given the evidence, could come to the same conclusion," meant he should not challenge Commander Derrick Foxworth's decision, since he thinks Foxworth is "reasonable." Since the "person" in question is supposed to be an imaginary average person, it is clear that the CRC needs more training.

On the issue of the handcuff removal, the CRC asked that the allegation be divided in two parts: that the cops asked Rivera to bend over to remove the cuffs ("Exonerated"--within policy) and that they used profanity inappropriately (Insufficient Evidence). Only Milesnick and Josey Cooper voted no. The CRC upheld eight other allegations as "Exonerated" and one "Unfounded."

[Image: IPR Director Leslie Stevens and City Attorney Linly Rees changed their 
minds about allowing CRC to ask Internal Affairs to identify more allegations] In case 2007-X-0005, Rivera alleges that on a different day, Officers Nick Frankus (#37943) and Chris Devlin (#39644) harassed him because he is Hispanic, falsely arrested him for Misuse of 911, and threatened to shoot him. Rivera says he was walking near SE 80th and Washington one morning when the officers drove up next to him. They exchanged some words and he asked if he was free to go. They said yes, but continued to follow him as he walked at least two more blocks. He says he asked if they were going to shoot him and they said they could or they could Taser him. Fearing for his safety, he walked to a nearby gas station and called 911 to get a supervisor.

Frankus and Devlin responded by confiscating his phone--which Rivera claims he had used to record what they said. They charged him with Misuse of 911. If Rivera is right, what happened here was a serious act of police misconduct: Officers intimidated him by following him, threatened him, confiscated the evidence of what happened, and charged him with a crime.

The officers should have radioed for a supervisor or given Rivera the non-emergency number--but they seemed vengeful, not helpful. Directive 310.20, Retaliation Prohibited, states that officers should not retaliate against citizens for: "Demonstrating one's constitutional rights, Reporting misconduct, Questioning the legality of a member's actions, or Asking for a member's name and/or ID number."

On the allegations that the officers answered Mr. Rivera's question whether they were harassing him because he was Hispanic by saying "and dumb," and that they threatened him, the CRC voted to change the Bureau's "Unfounded" findings to "Insufficient Evidence."

On other allegations, that the officer unnecessarily detained Rivera, harassed him, and falsely arrested him, the CRC voted to uphold the Bureau's "Unfounded" findings by votes of 7-1, with member Sherrelle Owens dissenting in all 3 instances.

[Image: CRC member Robert Milesnick assumed an officer would have been 
disciplined if Rivera were telling the truth] Interestingly, the Bureau attached an "Insufficient Evidence" finding to the allegation that Helfrich told the appellant the community court and the judge were a "joke," admitting in just one of 19 total allegations that perhaps Rivera's testimony was credible.

One final note on this case: IAD never interviewed the female clerk from the gas station, who testified in court (Rivera was found not guilty).

In both cases, the IPR should have attached allegations of Retaliation; they need to ensure Portland's police do not take people into custody for "failing the attitude test."

In July, it was reported that the Bureau agreed to all the changes proposed by the CRC.

In court, one officer accused Rivera of being a felon, which he denied, since he knew he only had a Class A misdemeanor (from Texas) on his record. The officers, Internal Affairs (IAD), and the IPR all labelled Rivera as not credible. Though IAD Captain John Tellis admitted Rivera's conviction was for a misdemeanor, not a felony, Tellis did not apologize. IPR Director Leslie Stevens said that the issues of credibility went far beyond that one discrepancy, yet it was the only example in a letter by Deputy Director Pete Sandrock which informed the man that they would restrict his ability to file future complaints. Stevens insisted that the letter would not be retracted.

Case 2007-X-0001: It is inappropriate to use the location of a person's property as "a bargaining chip for behavior."

[Image: Officer Jason Francis dragged Nena Williams on a gravel driveway in 
1999--PPR #19] A man says that Officer Jason Francis (#29355) brought him to Detox without cause, went into his home and hid his gun, and then stopped for a cup of coffee on the way to Detox. Despite the articulate presentation by the appellant--and the Officer admitting to all the charges--the CRC voted to uphold all three Bureau findings of "Exonerated."

Police said neighbors placed a "disturbance call" because they heard "a possible altercation," including a woman screaming. When the officers arrived, they heard loud music playing and found the man standing outside with a beer in his hand. The CRC never asked whether the officers even looked for the alleged screaming woman.

Officer Francis said that the appellant's first words were, "I know why you're here and there's nothing you can do." Francis decided there would be no reasoning with the man and took him into custody. He never articulated that the man was intoxicated or had committed any crime. Officers have the discretion to leave intoxicated persons home and might have been more inclined to do so if Chief Foxworth hadn't rejected the CRC's proposed policy change on this issue in 2004 (PPR #32). But this man also "flunked the attitude test"--Francis told the CRC he would have let the man go home and sleep it off if he had been cooperative.

Francis claims he told the man where he hid the gun but the man said he spent two days looking for it. Francis said he would have needed the man's approval to take the gun into custody and put it in the property room. The officer hid the gun behind a nightstand and admits he told the appellant he would tell him where it was if he cooperated. Francis said the man was being "a jerk" in the back of the car.

CRC member Owens alone voted not to uphold the "Exonerated with debriefing" finding. Other members expressed concerns about not telling the man where the weapon was, with Llewellyn Robison suggesting it was inappropriate to use the location of a person's property as "a bargaining chip for behavior." SE Precinct Commander Mike Crebs said he could debrief the officer on their concerns. The CRC accepted Commander Crebs' word without voting, making their recommendation even less binding than usual.

As for the coffee, PPB Directive #870.20, Custody and Transportation of Subjects, specifically says officers will: "Not engage in personal activities (lunch, coffee, etc.)" when transporting a person in custody. Officer Francis needed to use the bathroom. He had the second officer follow him to a store and stay with the appellant. After Francis used the restroom, he stopped for a coffee because it "helps me get through" night shift. He claimed it was not "leisurely or enjoyable."

Though CRC members Robison and Loren Ericksson said getting the coffee was "stupid", they voted to uphold the finding; Cooper said it was a "biochemical brain habit" and sympathized; Milesnick noted that Officer Francis only violated the Directive in a "strict constructionist view." Chair Miggins wondered why Francis didn't ask Officer B to take the man to Detox but voted in favor. Only Owens and Vice Chair Mike Bigham voted against the motion, noting that Francis violated the Directive.

After the hearing, Owens questioned whether the CRC was acting as an objective body if they made exceptions when a policy as written has clearly been violated. The question remains unanswered.

Case #2007-X-0002--Sustained for Officer's Offer to Help, Not Failure to Keep Promise

A woman who received a speeding ticket says an officer offered to clear her record if she pleaded guilty and took a class, but withdrew the offer in the courtroom. One complaint was that he did not adequately explain the court process. Her other complaint was that the officer offered to pay half of her ticket, but never followed through.

For traffic violations, where citizens are not given the right to an attorney, state law hands the prosecutor's role to police. Thus, the officers who are witnesses for the prosecution are also able to cut deals with suspects. The Bureau says officers are not required to explain the court process, so the first allegation was "Exonerated." At the May hearing, the CRC voted 8-0 to uphold that finding.

Regarding paying for half the ticket: The Bureau changed the allegation, asserting that the officer violated directive 310.00, Professional Conduct, by offering to pay for the ticket in the first place and "Sustained" that part of the complaint. The Performance Review Board changed the finding to a "Service Complaint." Vice Chair Bigham expressed his concern that the CRC was thus unable to address the allegation. The original complaint, that the officer made a promise to a civilian and failed to keep it (Truthfulness­Directive 310.50), was therefore never addressed by IAD, IPR or the CRC.

Case #2007-X-0003: What is a Search?

In August, the CRC heard case 2007-X-0003 regarding a man who said Det. Daniel Andrew (#28919) illegally entered and searched his house, garage and car and told his wife he was an ex- drug dealer, even though he'd been clean 8 years. The Bureau "Exonerated" Andrew on entering and searching the house because the wife, who had been granted a restraining order, needed to gather personal items. However, the wife saw the Detective "opening and looking through dresser drawers" and inside closets. Though this would qualify as a search, the CRC upheld the Bureau's finding. There was a dispute about whether the Detective looked at a bag of door locks outside the man's car (Andrew's story) or inside it (the wife's story). Despite a plea from Andrew to throw out the whole complaint, the CRC also affirmed the Bureau's findings of "Insufficient Evidence" for both the "drug dealer" comment and searching the car.

Citizen Committee Still Lacks Connection to Community

The CRC showed its continuing lack of connection to the community by holding its June hearings at the Multnomah County Courthouse. Despite numerous contacts from the public expressing concern, Chair Miggins and members Milesnick and Bob Ueland said they did not understand what the issue was. Members Robison and Owens, however, recognized that many of the people who file complaints see the courthouse as a place that can be "intimidating" and which is "supposed to be fair" but isn't always. The IPR claims they do not have the budget--which at six "outreach" meetings a year amounts to a mere $900--to rent space outside City Hall.

In their tradition of repeatedly scheduling presentations by police and agencies connected to police, the Bureau's Transit Division presented at the May CRC meeting. They stated that officers from other jurisdictions who work with them on Tri-Met duty have complaints against them handled by the Portland Police Internal Affairs Division. This is interesting news, since the IPR normally rejects complaints about officers from outside Portland. In addition, Transit Division Commander Donna Henderson recognized that their Division uses force at a greater rate than most precincts. Rather than look for less violent ways to handle citizens, they proposed using more officers when tackling citizens.

The special July 31 meeting featured a presentation by John Canda of the City's Youth Violence Prevention Office--another police-driven program which does nothing to address the issue of police accountability.

Contact the IPR at 503-823-0146.

On July 31, Internal Affairs collapsed into one category--"Unproven"--allegations they find no evidence to support ("Unfounded") and ones with equal amounts of evidence supporting the civilian and the officer ("Insufficient Evidence"); there was no public discussion of this troubling move.

The CRC voted to repeal their "pre-hearing" protocol on July 31, thankfully removing one hurdle for complainants. However, they often still conduct hearings without crucial information such as missing medical information, court transcripts or witnesses. They still have not instituted a process to ensure all such elements are available.

Standard of Review Not So Standard
In May and June, Deputy City Attorney Linly Rees diverged from the language of the ordinance, saying the committee's job is to consider whether a reasonable person "given the evidence in front of them" could make the same decision. The standard says "in light of the evidence," not "the evidence in the file" or "the evidence in front of them." The CRC is allowed to send cases back for further investigation or to accept new evidence at its hearings because it is not "reasonable" to make decisions based on insufficient evidence.


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