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Police Review: Appeal Supports Cops; City Attorney & Chief
Waffle in Presentations
In March, the CRC heard appeal #2011-X-0002 involving Mr. Jones, who claims Officer Rob Blanck (#22371) put his knee on his stomach and punched him in the chest, then pulled his Taser out and threatened to zap him. During the hearing, other participants indicated it was likely trainee Officer "C" who pulled out a Taser, but hid it behind his back. While Jones did not appear at the hearing, he spoke to CRC at the February Case File Review, where he admitted police were looking for him on suspicion of criminal activity.* He saw a cop car make a U-turn and, knowing he would be arrested, lay on the ground face down to facilitate their handcuffing him. A heavy-set man, he asked the police for help turning over. After he was rolled over, Blanck used force on him.
Because Jones was interviewed in relation to criminal charges, IPR only used statements he made to detectives in that case. While Internal Affairs (IA) did seek clarification, they did not fully interview Jones. They found no witnesses except the other cops on the scene.
Jones told CRC he thought the cops were trying to provoke him, but he did not take their bait or there would be a resisting arrest charge. Lt. Larry Graham, at the March hearing, asserted that Jones kicked at the officers at the arrest scene and later "attacked" an officer taking him to jail. While that officer responded by punching Jones in the head, CRC noted that was not part of the complaint-- nor was Jones charged with assaulting an officer. Jones noted there was no mention of the Taser or the force used in the police report, yet CRC did not ask for allegations to be added accusing the officers of incomplete reporting.
CRC member Rochelle Silver noted that Mr. Jones is African American and that Blanck is white. Lt. Graham quoted Jones as screaming racial "epitaphs" at the cops (including the "N" word, and calling one a "Mexican" though none were), and credited Blanck for backing off when he felt things were getting too heated. However, there was no real evidence that was what happened. While three officers described an altercation between Blanck and Jones, the fourth, Training Officer "D," who was supposedly observing Officer C, said he didn't see anything. This led to CRC member Steve Yarosh accusing "D" of being "Sergeant Schultz," (who always said "I see nothing!!!" on Hogan's Heroes)--prompting Graham to get defensive. In fact, Graham's whole demeanor was not that of a neutral fact-finder, but one determined to exonerate the cops, saying he had read through the files because it was "important to my officers."
Other procedural irregularities included a breakdown in communication leading to Jones not having an Appeals Process Advisor before the Case File Review. Former CRC member TJ Browning eventually was assigned, met with Jones, and-- in a significant new development-- was allowed to present the case when he failed to appear in March. However, Browning stated she felt the officers were probably within policy, and incorrectly stated that the Taser directive does not prohibit stun gun use on handcuffed subjects (it does). Yarosh started off with a case summary that focused too much on what the complainant did, rather than focusing on the reason for the hearing-- to discuss police conduct.
To their credit, both Yarosh and Chair Jamie Troy admonished Lt. Graham that no matter what Mr. Jones did, and even if he lied about his alleged crimes, their duty was to be sure the police acted professionally and within policy.
While one officer said he saw Blanck use his foot against Jones, Officer A and Blanck said he used his arms-- Blanck claimed he used his open palm to force Jones' chest down, then his other hand to keep him down. A military veteran attending the meeting asked why officers thought a 300 lb. handcuffed man on the ground posed a threat to them, and why Officer C would hold a Taser behind his back instead of displaying it to put pressure on Jones. Lt. Graham talked about a phenomenon called "cuff courage," which police say suspects engage in because they think cops won't do anything to them once they're in handcuffs. In one of several put-downs to the CRC, he said, "fortunately, you guys don't have to fight with people a lot so you don't see it much."
Portland Copwatch (PCW) questioned why Officer D, who should have been watching his trainee, did not see anything, speculating that he might have acted as a lookout while the other officers mistreated Jones. It was a cheeky remark--but why didn't investigators ask what Officer D was looking at?
Ultimately, the CRC, with some members cursing their standard (can a "reasonable person" come to the same conclusion, even if you disagree with it), voted unanimously to agree with the Bureau that (1) Officer Blanck should be "Exonerated" (found within policy) for the allegation that he struck Jones in the chest, and (2) Officer Blanck was "Exonerated" for threatening the complainant with a Taser. At least the latter one is an incorrect finding, since the Bureau asserts it was Officer C who drew his Taser, but they say he never threatened Jones with it-- therefore the finding should have been "Unproven."
* Jones was wanted on a Domestic Violence charge, and yes, that is a serious charge, but it doesn't give police the right to abuse their power. We also noted that in years past, police did nothing in DV cases, but now we wonder if the pendulum has swung the other way and they may be trying to inflict justice with their own hands.
At CRC's January meeting, Chief Reese spoke for about 15 minutes on the issue of officers from multiple jurisdictions working in Portland. The CRC intended to get a better idea how to hold the outside officers accountable, including having them wear visible identification as Portland cops do. However, Reese mostly ducked the question, and even mis-spoke by saying the Transit Division's agreements for TriMet police obligates outside officers to cooperate with IA when a Portland officer is being investigated for misconduct. CRC member Hank Miggins appropriately challenged Reese on this point, as the agreements do not compel cooperation. The Chief downplayed the seriousness of officers without nametags, noting that Occupy Portland events are among the "most well documented" ever, so officers can be identified from video or stills.
Interestingly, Reese told CRC that when other cops come to town for protests, "We set the rules of engagement." This raises questions about whether that is true when officers assist in deadly force situations (see article, this issue). However, he noted that even though officers are expected to follow Portland's guidelines, they have different complaint processes and labor agreements that complicate matters. After he left, most CRC members agreed that Reese's presentation was inadequate.
In February, Deputy City Attorney Woboril was invited to go over changes to the IPR ordinance (PPR #55). He also explained more about Portland contracting with other police agencies, and addressed court rulings on Tasers.
Woboril's explanation of the new rules were mostly neutral, and even surprisingly pro- accountability when he explicitly told CRC they can ask IA or IPR to add new allegations to an appealed case. However, he cautioned that they could only do so when sending the case back for more investigation.
When CRC members asked how to determine what constitutes "evidence" they can consider when making a finding (as opposed to "information" that might come forward at a hearing), Woboril told them to "deal with it." He did not address PCW's question why CRC would need to send a case back for more investigation if, say, an officer confessed at a CRC hearing that she did what the civilian alleged. (This actually happened in 2002, when a cop said she didn't call the appellant "ignorant," she called her "stupid" [PPR #26].)
Woboril said he did not remember exactly how investigations into other agencies' conduct works when CRC member Mike Bigham noted that an outside officer (or his bosses) could refuse to submit to an interview. To his credit, Woboril did mention trouble with the James Chasse investigation when an involved Sheriff's Deputy refused to be interviewed (PPR #49).
The issue heated up again in April when CRC and public members pressed IPR Director Mary- Beth Baptista why IPR was not helping investigate the March 13 deadly force incident in which the PPB called in Washington County's SWAT team (read more here). Baptista said she decided not to get involved because the PPB told her their officers were not involved.
With regard to Tasers, Woboril said that an October decision by the 9th Circuit Court of Appeals means that deploying the weapon's fish-hook probes on 21-foot wires is considered an "intermediate level of intrusion" and only to be used to counter an "immediate threat." The court, he said, dodged examining Tasers' drive stun mode, and did not talk about beanbags, pepper spray or batons. Woboril called the lack of clarity "Terrifying for a legal advisor."
On January 26, the CRC held their third Community Forum since 2010, this time at the East Portland Community Center (unfortunately situated across from the Bureau's East Precinct.) Of 25 or so people who testified, nearly all had seen or experienced police misconduct or brutality at Occupy Portland events, particularly during the November camp eviction (PPR #55). It was a marked contrast to their efforts to testify to City Council last fall, when the Mayor repeatedly cut people off who tried to tell their stories. Pepper spray, horses, batons, and even a teen who had been punched in the face by police gave CRC members a more realistic taste of how the PPB really relates to Occupy (see article, this issue). This was particularly important since the IPR included in their fourth quarterly newsletter only compliments to the police about their handling of the eviction, and nothing about the multiple complaints received by IPR.
The CRC's Appeals Work Group re-wrote two protocols to update the procedures to match the new ordinance. The ordinance now provides that CRC has three choices when voting on an appealed finding: (1) accept the Bureau's finding; (2) recommend a proposed changed finding; or (3) send back for further investigation. The revised protocol #5.03 addresses the first two, but not the third.
PCW asked CRC to spell out the next steps, particularly because they have no ability to force IA or IPR to conduct further investigation. Chair Troy described a "work-around" where CRC will vote to find a case is not supported by the evidence if the City refuses to provide more evidence. While reasonable, if that provision is not written into the protocol, future members may not understand the intent. In March, CRC unanimously adopted the new protocol with no changes.
Protocol #5.16 was fairly well updated to clarify CRC and IPR's roles at City Council appeals. Such an appeal has only happened once, in 2003, when IPR undermined the CRC's position and led to a mass resignation (PPR #30). CRC voted 8-0 to accept the protocol. They agreed with PCW's suggestion to send the protocol to Council before the procedures were formally adopted, despite objections from Baptista.
In February, new CRC members were appointed by Council, given an orientation, and sworn in at the beginning of the monthly meeting, all within a few hours. New members David Denecke, KA Lalsingh and Rodney Paris had attended two other orientations, one from the Auditor and IPR staff, the other from Internal Affairs at Central Precinct.
Reappointed to CRC were Chair Troy and member Jeff Bissonnette. The terms of all five will now last three years, due to the ordinance changes. It is not clear how IPR will stagger the terms of CRC members since the remaining four members' terms will all expire in 2013.
The CRC now consists of far more professionals than ordinary community members: Denecke, Paris and Troy (who all went to Lewis & Clark law school) are all lawyers, as is Yarosh. Paris and member André Pruitt both work at Oregon Health Sciences University. Lalsingh has several degrees and is applying for a PhD; Silver currently holds a PhD. Bigham is a retired cop (but is now the only former law enforcement member on the panel). Bissonnette is the only one listed as a community activist.
With Miggins, an African American, and Egyptian-American member Ayoob Ramjan both leaving, CRC is now down from three to two people of color (Lalsingh and Pruitt), but up to two women (Lalsingh and Silver). The average age of CRC members is 53, with ages ranging from 37 to 71. Three members live in SW Portland, three in NE, two live in North Portland, one in SE, and none in NW. CRC should have age, socioeconomic and geographic diversity in addition to gender, race, and sexual orientation.
None of the people chosen had been to a CRC meeting prior to applying. So far as we know, neither has Danette Haynes, who was on the selection panel with Baptista and former CRC member Irma Valdez.
On April 14, CRC held its semi-regular retreat to set goals for 2012-2013. They agreed to start work groups on use of deadly force and crowd control.
--IPR Director Baptista delayed the release of the CRC's Taser/Less Lethal report. This is disturbing since (A) the ordinance changes made in December allow CRC to make recommendations directly to the Bureau, and (B) the CRC's policy protocol says their Work Group will approve a draft report at their meeting, send it to the PPB for comment, then rewrite it with IPR's help if needed. At the March meeting (and in a media interview afterward) Baptista shrugged and said CRC can do what they want. However, the reality is that IPR still holds too much sway in what should be a citizen-driven process.
--Since CRC is supposed to advise IPR and IA, PCW urged them to address the Police Review Board's failure to notify Keaton Otis' family of a right to appeal the proposed findings on Otis' shooting death (see article).
--Rachel Mortimer, an attorney in juvenile law, was hired to replace Assistant Director Pete Sandrock, with the new job title "Assistant Program Manager." Carol Kershner, IPR's main administrative staffer, also left the agency and was replaced in March.
--Input to the IPR's outreach coordinator included that African American community members "insist that IPR have subpoena power to compel officer testimony."
--A new Bureau Directive which requires Sergeants to go on scene immediately after a Use of Force incident was adopted swiftly and without public input. Such feedback could have pointed out the likelihood that supervisors (like the above-mentioned Lt. Graham) will tell witnesses that officers would never do what they are being accused of. One recommendation not added to code by Council was to require the Bureau to run such policies by the CRC before adopting them.
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through citizen action.
Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.