Sent by board members of the Mental Health Association of Portland to Auditor Mary Hale Caballero, IPR Director Constantin Severe, Police Chief Mike Marshman, Portland City Commissioners, allies and colleagues – from the board of directors of the Mental Health Association of Portland.
In response to CITY AUDITOR PROPOSES CHANGES TO PORTLAND’S POLICE ACCOUNTABILITY SYSTEM, released August 18
Thanks for your proposal to amend city code to improve the system of police accountability. It is commendably straightforward and simple. However, we believe there are certain important elements missing or in need of revision, and we hope you will give serious thought to the five points below.
1. “Reasonable person” standard
For years the standard of review by which officers are judged has been how a “reasonable person” would act. Many people, however, have advanced strong arguments for changing the standard to the more easily grasped “preponderance of the evidence.” Portland Copwatch addressed the issue in depth in a 2011 article available at http://www.portlandcopwatch.org/preponderance_analysis_0411.pdf. Five years later, the article is still current, the questions are the same, and a change is overdue.
2. Other enumerations of needs
It would be helpful if you would relate your proposal to the US DOJ v City of Portland Settlement Agreement, or to other observed and prioritized needs from prior police accountability experts the city has hired over the years.
3. Smaller appeals panel
We agree individual appeals should be heard by a smaller number of CRC members, but three is too few; five or seven is fine. With only three, a citizen’s panel would never reflect the diversity needed for a true representation of Portland’s communities. Also, it is important to think through how a smaller appeals committee would be selected from the whole; for example, availability is not a good criterion.
4. Perspective of those directly affected
As you know, the majority of persons who come in contact with police have recurring issues with mental illness, addiction, or both. We believe their perspective is critical to any discussion of police accountability. Looking at the bullet points in your press release from the viewpoint of persons in recovery from mental illness or addiction who have been harmed by police, and who then made a complaint against an officer or officers, we offer the following comments.
To date, from what we know, not one person with mental illness or addiction has resolved a complaint about the Portland police to their advantage outside of civil court: not with police administration or Internal Affairs; not with community groups or individual advocates; not through the Independent Police Review, the Citizen’s Review Commission, the former Chief’s Forum, or any other venue. Out of perhaps thousands of cases, that’s a total of zero. The odds of police misusing force are low, but for the most frequent victims, it seems the gates of justice have been barred. And considering the barriers, including the intangible ones caused by symptoms of our illnesses – which, by the way, we never asked for – it’s likely most complaints were never made in the first place.
Parenthetically, please note that until significant reforms actually happen, our organization will continue to refer persons harmed by police directly to local attorneys for litigation in civil court.
The process of making and resolving claims is not intended to be antagonistic to either party. The purpose is to reduce injury and increase accountability; ideally, experience guides future action. It is the resolution of complaints that increases our shared index of experience and moves us to a collective goal of reducing meritless use of force. Resolution should be a useful and positive process for all.
If the city is sincere about reducing routine harm by police to people with mental illness and addictions, surmounting the barriers to resolution should be a priority. A good first step would be to make staff support available for persons with psychiatric disabilities throughout the complaint process, as a reasonable accommodation under the ADA, and as the only way to ensure complaints are understood and fairly resolved.
What this support entails is worthy of discussion within your office, and worthy of leadership who understand the value of that discussion.
Imagine a community exists in Portland, with more than 160,000 people (a federal estimate of the number of Portlanders with psychiatric disabilities) who speak a language no one outside their community understands. Does anyone on the IPR speak our language? In the police bureau? On the Citizen’s Review Commission? We think no.
At minimum, support for people with mental illness and addictions must include time with a knowledgeable and skilled person who can explain the process to the claimant, and if wanted, their friends, family or a claimant-identified agency employee, either a volunteer or a staff person.
Whether complaints are handled by the police bureau’s Internal Affairs department, the Independent Police Review Division, or the Citizen’s Review Commission, people with psychiatric disabilities should be supported in understanding and navigating a process the DOJ called “Byzantine.” How any of these bodies operate is obscure, interacting with them daunting. Without someone to show the way, the very people most affected by police use of force will be the most hopelessly lost.
5. Public participation
Because trust between the city and the community over police accountability has been severed – and this began before your time – reforms without intentional repairs to that relationship are probably useless. Public observation and recording of the public’s business are essential to rebuilding trust. The public should always be welcome, always be able to see and hear proceedings for themselves, always be able to record proceedings and request public documents, and always be able to present testimony in response to the meeting’s agenda. Repairing the damage does not require the city to tolerate mischief. It does require acknowledging people are angry and will react to trust issues.
Mary, thanks again for your engagement on this issue. We look forward to an expanded proposal and presentation from you tonight.
ANALYSIS: Proposed oversight system changes still shut out public, don’t address problems
From – Portland Copwatch, August 22
Auditor Hull Caballero, Director Severe, and members of City Council:
Portland Copwatch applauds the City’s decision to keep police misconduct appeal hearings public. However, we strenuously object to the proposal to silence community input during the hearings. There are also a number of provisions in the proposed panel configuration of the CRC that will not necessarily help with the goal of speeding up the process, specifically, it lowers the number (and thus diversity) of CRC members and doesn’t guarantee the same people will sit at as many as four hearings on the same case using the current structure. Furthermore, the previous proposal included promises of long-awaited changes to the system which are now absent. All of this proves that we still need more time to hash out the details on how to improve the oversight system, so the City should slow down, create a public work group, and get this done properly.
Over the years, the public’s ability to comment at hearings has been a strength of the CRC system, not a weakness. The implication that somehow community comments will unduly sway CRC to make a decision that prompts the Police Association to file a grievance is pure speculation and insults the ability of the carefully screened CRC members to balance facts from opinions. Moreover, the appellant is not provided a paid advocate, while the officers involved are capable of engaging a union representative and/or a lawyer at no cost to themselves. The volunteer Appeals Process Advisors are warned not to advocate for the appellants, and are not allowed to share the contents of case files with them. When volunteer attorneys manage to connect with appellants, they are not allowed to look at the case files. Thus, the statement made by the Auditor to the Oregonian implying that the community should not comment because they don’t have access to the case file is extremely disingenuous– the person who says they were harmed by the police and who set the process in motion does not have access either. They have the same case summary paperwork as the community.
Community comments on training, policy, and CRC procedures, as well as connecting the appellant’s experiences to other incidents, serves to improve the process. The DOJ did not recommend removing public comment in their findings letter or the Settlement Agreement. Do not continue this effort to shut out the community. If you look at the disruptions to previous CRC meeting and meetings of the Community Oversight Advisory Board, it is completely predictable that shutting people up will lead to more disruptions rather than a better process. If this change is being made due to the water tossing incident, it should be pointed out that the CRC– whose member was the target of that water– stood up for the community continuing to attend their hearings, and the member who was soaked sat on the Focus Group but did not suggest ending public comment based on that incident.
We also should add here that the officer and his/her representative can say anything they want, and if those unsupported statements sway the CRC it’s unlikely anyone will file a grievance or lawsuit. Portland Copwatch has done an analysis of eight times officers have appeared at CRC meetings, and noted that there was only one time they ended up proposing a “Sustained” finding. Thus, one could conclude that officers should not be allowed to testify as they unduly sway the CRC– but we do not advocate that change, we only point this out to encourage a balanced playing field.
We’ve also heard that the City is claiming they want to cut out public comment because some comments have “re-traumatized” the appellants. Considering that they are showing up because they feel an officer has committed harm against them, that is difficult to believe. Of the last 9 cases that came before CRC, two appellants didn’t even show up. At least two of the other 7 (and one witness who testified at two hearings) have informed us they were not bothered by public comments, we’re awaiting feedback from more. This specious claim can easily be refuted, too, since the community is almost always supporting the complainant and asking that the officer be held accountable.
The proposal to lower the quorum of CRC members from 5 to 3 for appeal hearings will eliminate the value of the diversity deliberately achieved when CRC members are chosen. Portland Copwatch recommends instead that the City: (a) increase the CRC to 15 members and (b) use the 20-member Police Review Board civilian pool to add diversity and numbers to the “panels.” We suggest panels of 4 CRC members and 3 PRB members with a minimum of 5 present to proceed with an appeal. (While amending this section, the provision setting the now-11 member CRC’s quorum at 5 means that a minority of the group can make a decision with the majority absent. Even though the City Attorney claimed a few weeks ago that they need 6 people to make administrative decisions, that is not written into any policy nor the ordinance. That should be clarified.) Our calculations show this would mean if there were three hearings a month, each CRC member would hear 11-12 cases and each PRB member would hear 6-8 cases including PRB hearings. That seems to be a manageable workload, particularly for PRB members who only hear 1-2 cases per year and otherwise never get to interact with other members of the pool as only one civilian PRB member sits at PRB hearings. This is an ideal time to add members to the CRC and modify the PRB’s responsibilities since new members of both bodies are about to be inducted by Council.
One reason to have a larger number of people at the “panels”: If the CRC continues to hold Case File Reviews, hear appeals, send back cases for more investigation, and hold “conference hearings” when the Bureau disagrees with their findings, it’s highly likely that the same panel of 3 people won’t be available for all of those supplemental hearings. This means other members will have to read the case file and listen to the tapes of the hearing.
On that note, if the City really wants to speed up the appeal process, you should eliminate the “conference hearings.” The ordinance was created to resolve disputes between the Bureau and the CRC at a City Council hearing. This Thursday, the Bureau is coming back for the fourth time in three years to dispute a recommended finding by CRC. If the Committee’s time is to be freed up to hear more cases, just let those appeals head right to Council as originally envisioned. We reluctantly point out that Council normally allows public input before they vote on anything, so the City’s efforts to squash community voices may be neutralized after CRC passes appeals up the chain. If this observation leads the City to change the ordinance to prohibit public input at Council appeals, you should be ashamed of yourselves.
In 2015-2016, CRC has met 15 times to consider just 8 appeals, in part because of cases that were poorly investigated and needed to be sent back (three cases) and the two previous “conference hearings.” Our full analysis of these two years is attached below.
Then there are the broken promises from the last version of the changes, presented to the community for the first time on August 1 and already changed.
–There is no provision to change the CRC’s standard of review to “preponderance of the evidence.” If anything takes up too much time and causes confusion at appeal hearings, it is CRC’s trying to adhere to the “reasonable person” standard that was stuck in the definitions section of the IPR ordinance in 2001. Since CRC’s votes to change findings are just recommendations, it’s not clear why they need to maintain this deferential standard.
–The CRC was going to be allowed to hear cases of deadly force/deaths in custody in the previous proposal. While we believe the existing ordinance does not prohibit their hearing such appeals, the ability should be added while these changes are being made. It’s previously been stated that the prohibition on CRC, as well as IPR looking at deadly force cases, comes not from the ordinance but from the PPA’s collective bargaining agreement. Thus, the ordinance should be written to explicitly allow IPR and CRC to investigate/consider such cases, and the agreement should be modified to remove that roadblock.
–There was a promise to constitute a civilian majority on the Police Review Board, the internal body that considers out-of-policy and force cases. That proposal is nowhere to be found. Portland Copwatch continues to believe that the CRC and the PRB should be even more closely integrated and that the PRB hearings should be heard by only members of the 20-member civilian pool of PRB (and CRC members at deadly force cases). That said, we do appreciate that the complainant is now going to be afforded the ability to come to PRB hearings. However, rather than just a “representative,” the complainant should be assigned an advocate from the day their complaint is filed who supports them at the PRB and, if they file an appeal, at the appeal hearing. The community member will be in a room with at least 3-4 police officers (and many more including advisory members to the PRB) with no advocate and at best a one-person support network.
There are some parts of the proposal which are promising.
–It is encouraging that some of the rules that allow IPR to dismiss complaints are being deleted, including the “crystal ball” provision put in 6 years ago which indicated the Division could determine whether a case could be proven before an investigation took place.
–There is something to be said for shifting the responsibility for attaching findings to investigations from the officers’ commander to the IPR Director or IA Captain. This will eliminate the time that this step takes and provide consistency, especially since IPR is less likely to have direct ties to the officers being investigated– though that is not so true for IA. Much to their credit, IPR has added to the PRB ordinance that the IPR staff person who investigates and/or makes findings can’t be the same person who votes on the PRB. This means this also eliminates our past objection to the commander voting on his/her own decision (second bite at the apple), and that IPR technically isn’t being asked to take that second bite. Perhaps the IPR should attach all the findings since the IA Captain is part of the Police Bureau and has the appearance of a conflict of interest.
We have no opinion on the removal of the word “Division” from the IPR’s name, but so long as Internal Affairs has to compel officer testimony when IPR investigates misconduct, the word “Independent” is the issue.
In summary, please do not eliminate public input, please expand CRC and utilize the PRB civilian pool to a fuller extent, and please slow this process down until it has been properly thought through. The few good things in this proposal do not offset the bad.
ANALYSIS OF CRC CASES 2015-2016:
8 cases have come before CRC in 2015-2016 to date.
Mr. Klug’s case alleging force including a Taser has come before CRC three times and is coming back a fourth time on Sept. 7. Those four times:
–his Case File Review (CFR) in October, where the case was sent back for more investigation as all witnesses were not interviewed;
–the police no-show for the appeal hearing in April, though security measures had been implemented;
–the appeal hearing in May;
and the Sept 7 will be a supplemental hearing to use the correct Taser Directive.
Regarding the 7 other cases heard just in 2015-2016,
–three had CFRs and Appeal Hearings the same nights (Mr. West’s case of the grabbed camcorder came back to a conference hearing. The others were the case of a protestor allegedly being shoved and the case of alleged force against a woman on a Tri-Met platform),
–one had a CFR and is still pending (young man in a car alleging force),
–one had a CFR, a hearing, a conference hearing (led to more investigation to expand allegations), and a supplemental hearing, plus an aborted hearing where the paperwork was messed up (surrounding detentions/ arrests at a post-Ferguson verdict protest),
–one had a CFR (sent back for witness investigation), an appeal hearing, and is coming back for a conference hearing on Thursday (Ms. Foroshani, who was told she wasn’t a good attorney and possibly manhandled),
–one had a CFR and appeal hearing (Ms. Siri, who said her landlord and police came into her house inappropriately, heard on different dates prior to code changes allowing CFRs and hearings to be heard on the same day).
If you only count Mr Klug’s two hearings to date, there were 15 different gatherings of CRC to hold CFRs and/or appeals in these two calendar years, but there are only 8 cases involved. It will be 18 total gatherings once Mr Klug, Ms Foroshani, and the young man in the car finally have their cases disposed of, 20 if you count the no-show by the PPB and the case where the IPR messed up the protest case paperwork.
Here’s the timeline:
May 6 2015: Siri CFR
June 3 2015: Siri Appeal
October 7: Klug CFR
November 4: Shoving CFR/Appeal
December 2: Protest CFR
January 6: Protest Appeal
January 21: Foroshani CFR
February 3: Car CFR
February 25: Protest Conference
March 2: Trimet CFR/Appeal
March 30: Mr. West CFR/Appeal
April 20: (No hearing) Klug Supplemental
May 4: Klug Supplemental
June 2: West Conference
June 21: Foroshani Appeal
July 6: (No hearing) Protest supplemental
August 3: Protest supplemental