People's Police Report
Shootings & deaths
Three Cases Show Varying Responses by Citizen Review
The first four months of 2013 brought three cases before the Citizen Review Committee (CRC) with varying results, due to the circumstances around each case and the CRC's limited power. The CRC also continued its work looking at crowd control and deadly force issues. Meanwhile, even though the Agreement between the City and the Department of Justice (DOJ) has not been formally accepted by the court, the "Independent" Police Review division (IPR) has been gearing up to appoint two extra members to the CRC and to hire three "complaint investigators."
The appeal heard on Jan. 30 stemmed from a complaint by Penelope Welsh, 67, who lives downtown, and who was walking a block away from Shemanski Park when police had cleared it out during an Occupy Portland protest in December 2011 (case #2012-x-0005, PPR #58). Welsh says Officer Stephen Endicott (#26719) ignored her pleas about having disabilities and pushed her along to walk faster. Welsh rested against a wall and told Endicott she would file a complaint, began walking away, and Endicott pushed her again.
The Bureau found that the officer should be "Exonerated," or found within policy for his use of a so-called "escort hold" to "guide" Welsh up the sidewalk. The CRC wisely voted 5-2 to propose changing the finding to "Unproven," since there was not sufficient evidence to make a decision that the officer followed policy. The Bureau agreed with CRC and changed the finding.
An IPR memo shows that the system is flawed. In it, IPR Director Mary-Beth Baptista admits deciding not to controvert the "Exonerated" finding knowing that "Unproven" doesn't change the officer's disciplinary record (both findings fall under the broader category "Not Sustained"). However, having the correct finding attached to an investigated complaint builds trust in the system. Although it is true that resources would have been expended on a Police Review Board to convene if Baptista controverted the finding, the City spent resources on this appeal hearing with the same likely outcome. We've noted many times that the Police Review Board and the CRC should be better integrated as one body to avoid such duplication of effort.
Officer Endicott testified that he felt the situation was not the right time and place to discuss why the police were shutting down the sidewalk.* However, if he had taken time to do so, the complaint probably would never have been lodged. The officer escalated the situation by not answering a simple question and instead repeatedly telling the Appellant to move. Endicott's strategy seemed to be to portray himself as a very low-key, laissez-faire kind of guy who didn't care whether Ms. Welsh had a "99%" pin on or not. But he went out of his way at the hearing and apparently in the police report to assert that she did. Portland Copwatch (PCW) pointed out that during the incident he would have been in a "ninja turtle" uniform with a gun, Taser, pepper spray, etc, and probably not so calm.
CRC member Steve Yarosh, perhaps reacting to an audience member who accused Endicott of impropriety, claimed the officer was so overwhelmed by the "darts" thrown at him that he thought Endicott would tell other officers never to appear before CRC. He added that CRC only talks about what officers do wrong, without paying them compliments. However, since the CRC's role is to hear concerns about the police and review complaints against the police, it is only natural that most of the work will be around what the police are doing wrong.
Similarly, former CRC member TJ Browning, who acted as the Appeals Process Advisor (APA) for Officer Endicott, exaggerated the supposed fearful mindset of the officers in December 2011 by saying something about a May Day melee that had happened. The most recent police clash with May Day protestors was in 2000, over 11.5 years earlier. Ms. Browning also stated that the Officer should have been complimented for how he handled the situation, even though there was evidence that he was pushing Ms. Welsh up a sidewalk directly across from an empty park and a mostly deserted street.
It was indeed unusual for Officer Endicott to be there; no officer accused of misconduct has appeared before the CRC since July, 2010 (PPR #50). It probably helped his case to be there; the CRC often softens their critique of the police when the officer takes the time to defend his/her actions.
As mentioned in the last issue, IPR informed CRC they believed it was not within CRC's authority to order another allegation of "Courtesy" be added to the complaint. CRC member Jeff Bissonnette said he considered the idea of adding a Courtesy allegation, but he decided against doing so to save the resources that would have been involved in investigating the new allegation and holding yet another hearing. While there is a budget crisis, the act of sending one case back could lead to future improvements so that such categorization and investigation will happen appropriately on the front end. This issue came up again in a different form in case 2013-x-0001.
The hearing on this case was held on a special night, January 30, because the officer was sick at the
time of the January 9 meeting.
Eight months after sending back the case of Craig Maynard, tackled by Officer Christopher McDonald over a missing bike light (or reflector), CRC finally heard the appeal in February. As reported in PPR #57, McDonald dislocated Maynard's elbow, resulting in a trip to the hospital, and leading to a downward spiral culminating in Maynard's suicide two months later. The sticking point for CRC had been whether McDonald had, as Maynard alleged in his written notes, said "Yeah, I did" when Maynard accused him of purposefully breaking his arm. Amazingly, Internal Affairs was ordered by Mayor Adams to conduct the investigation (PPR #58), and went beyond the request from CRC (which was to ask officer "B" if he heard that comment) to ask McDonald that question directly. More amazingly, McDonald told investigators he did tell Maynard he broke his arm--but didn't admit he did it on purpose.
According to IA, the witnesses to the scene who had raised concerns about the force used did not add any new information to the investigation. Thus, the original finding, which was "Unproven with a debriefing," was upheld unanimously by CRC in a 7-0 vote. CRC member Dr. Rochelle Silver did note that CRC's "reasonable person" standard, which doesn't allow them to weigh the evidence independently of how a police supervisor may have seen the case, "sucks."
Lt. John Scruggs, who made the findings on the case, made some alarming statements defending his officer's behavior. The most outlandish was justifying McDonald's pursuit, in a patrol car, of Maynard's bicycle, because 1970s serial killer Ted Bundy was caught when police noticed his car's burned out tail light. Scruggs also said there is no such thing as minimum force so he could not conclude that McDonald's force was excessive. Unfortunately, there was no question raised about whether the cop was on steroids or other drugs (even though the issue of Maynard's having consumed alcohol was repeated). And while the perspective of a person's arm being dislocated in the "totality of the circumstances" was discussed, there was (in CRC members' minds) not enough evidence to "Sustain" the complaint.
On the bright side, when asked why Officer McDonald wasn't present, Lt. Scruggs noted that he can't compel the officer to be at a CRC hearing, but offered to relay concerns of Maynard's friends and family (who were present, including his sister from California).
On the other hand, CRC member Yarosh declared afterward that the officer had acted appropriately and expressed his "love" for going on police ride-alongs to "go look for trouble." He did, however, note this was not necessarily the best way for officers to patrol, comparing it to the idea of firefighters driving around looking for fires to put out.
Internal Affairs' Lt. Graham, who has not won us over in any previous hearings, told CRC they chose to interview Officer McDonald because "it was the right thing to do."
In March, CRC held a "Case File Review" regarding an alleged improper stop, search, and use of force against Lisa Haynes, a 4'-10" tall African American woman. Officers had approached Haynes suspecting her of mailbox thefts attributed to a Latino man who was described as being 5'-4" tall. Despite the clear and, perhaps, racist undertones of this error, the Bureau dismissed Haynes' improper stop allegation. Bear in mind that the IPR has to sign off on such dismissals, that those decisions are not appealable to CRC, and that, as above, CRC is convinced they do not have the power to ask for other allegations to be investigated. (In this instance, it's hard to tell what would have happened anyway-- a number of CRC members claimed they understood why the police made the mistake.)
In summary, Ms. Haynes was at a Tri-Met transit stop some distance from the alleged mailbox thefts when Officers Jordan Winkel (#51850) and Gregory Baldwin (#23593) approached her. The officers wanted to search her backpack and, according to Haynes, she refused to allow the search, which led the officers to use what she called excessive force against her. She also claims Baldwin used profanity, reflected as a rudeness complaint. The Bureau findings on the investigated complaints were to "Exonerate" the officers on the force complaint (find them in policy), "Exonerate with a debriefing" both officers on the search (meaning it was in policy but could be handled better), and the rudeness complaint was "Exonerated" (or in policy--though it is likely they meant it was "Unproven").
Interestingly, while an officer who came onto the scene after most of the incident occurred was interviewed, Haynes' son, who was on the phone listening to events unfold, was not. CRC members mentioned that paperwork listing her son's criminal history was inexplicably in the Internal Affairs file. Our guess: it was there to discredit his testimony.
In late March, Ms. Haynes requested the CRC delay her appeal, so it was not heard at the April meeting.
Even though the DOJ Agreement may not be finalized until June (p. 1), IPR has taken several steps toward implementing pieces of the plan. Neither of them are necessarily bad, but it seems a more holistic approach would be to wait until all the changes have been agreed upon before putting them into place. The first was that while recruiting for new members (to replace Andre Pruitt, KA Lalsingh, and the soon-to-be-departed Michael Bigham), the IPR opened up two extra slots as the DOJ calls for their ranks to be swelled to 11 members. PCW has supported this idea for years, since the five City Council members can nominate CRC members, a majority of the now nine members could be political appointees. Two other members' terms end in February 2014, and this recruitment forced Dr. Silver and Yarosh to decide a year in advance whether to renew their terms. Silver declined.
The second item was the Auditor posting a job description for three "complaint investigators" on April 1. The description indicates that these will be investigators who may do more than the "intake investigations" currently performed by IPR staff. In other words, the IPR may be able to stop claiming they cannot conduct full investigations (which they have never done in 11 years of existence) because of limited staff. Again, there's no discussion on where the money is coming from, what their roles will be, and whether IPR will gain the authority to compel officer testimony (tied into the Portland Police Association's contract)... but overall, it could be a good sign.
In general, the CRC and IPR have not discussed the Dept. of Justice Agreement, even though it affects their functioning. While CRC continues to express concern about the Agreement calling on them to complete their appeals process in 21 days, most of the information about the Bureau's progress in implementing the still-not-finalized report has been relayed to the Community/Police Relations Committee (CPRC article).
The CRC's Deadly Force Work Group has slowed down its research. This is unfortunate since the Bureau is currently rewriting its deadly force policy, and CRC should play a prominent role in that rewrite. In the meantime, they have continued to gather information, including a tour they took of the new Community Policing Training Center in NE Portland. Training Capt. Brian Parman was the only person on duty (it was Presidents day) and showed the former trucking facility to two CRC members and two members of the public. Afterward, there was a lengthy and productive discussion about how officers are trained. Parman admitted he'd heard tales of police coaches telling trainees to forget what they learned in the classroom, but assured CRC all coaches are certified by the Training Division.
While that meeting had to take place in a police facility to accommodate the tour, it is not clear why the CRC's Crowd Control Work Group decided to hold their February meeting inside Central Precinct. Guided through security doors, two members of Portland Copwatch, a reporter, and two CRC members ended up in the Roll Call room where Commander Bob Day and Lt. Terry Kruger explained their perspective on how police handle protests. Day expressed frustration with protest organizers who said there was no leader, in the same breath acknowledging such tactics have been used repeatedly over the years--so, has he learned anything? He indicated that protestors not talking to the police made them more likely to suit up in their protective (aka "riot," or "Ninja turtle") gear. It's about a balance between First Amendment rights and people's right to move in traffic (not one of the first 10 Amendments). The cops explicitly stated that using bicycles as weapons against protestors was acceptable because it was the same as using a baton; when PCW pointed out that bicycles have pedals and sharp gears (PPR #58), the police did not change their tune. Their excuse is that bike cops can't wear heavy protective gear or carry the same weapons as the riot squad. (More on the meetingp. 8.) In March, the Work Group met with the "Rapid Response Team" in a closed-door meeting with no notice to the public. That was bad form for a civilian group charged with building public trust.
The Deadly Force Work Group set its April meeting at North Precinct. As with the CPRC, the CRC should be very cautious about holding any meetings on police accountability in police facilities if they truly want to be open to the public.
ALSO: At the January 30 special meeting, Chair Troy unilaterally declared there would be no public comment, even though it was on the published agenda.
*we note here that the official mandate was to close Shemanski park, not the streets, sidewalks, or even the "Lincoln block" next to which Ms. Welsh was walking.
Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.