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Portland Copwatch: SUMMARY COMMENTS: Police oversight ordinance

To Mayor Wheeler, Commissioners Eudaly, Fish, Fritz, and Saltzman, and Auditor Hull Caballero:

This is a follow up to our March 20 email in which we urged you to modify or postpone a vote on the proposed changes to the Independent Police Review Division, currently scheduled for Thursday 12/13 at 2 PM.
<  https://www.portlandoregon.gov/auditor/article/635119>

We continue to believe you need to incorporate the stakeholder report written by John Campbell at the behest of the City into the proceedings.
Date: Tue, 11 Apr 2017 14:17:44
From: Portland Copwatch < copwatch@portlandcopwatch.org>
To: Portland City Council -- Commissioner Amanda Fritz
< amanda@portlandoregon.gov>,
Commissioner Chloe Eudaly < chloe@portlandoregon.gov>,
Commissioner Dan Saltzman < dan@portlandoregon.gov>,
Commissioner Nick Fish < Nick@portlandoregon.gov>,
Mayor Ted Wheeler < MayorWheeler@portlandoregon.gov>,
Mary Hull Caballero < mary.hullcaballero@portlandoregon.gov>
Cc: Constantin Severe < Constantin.Severe@portlandoregon.gov>,
Citizen Review Committee < crc@portlandoregon.gov>,
News Media < newsmedia@portlandcopwatch.org>
Subject: SUMMARY COMMENTS: Police oversight ordinance

To Mayor Wheeler, Commissioners Eudaly, Fish, Fritz, and Saltzman, and Auditor Hull Caballero:

This is a follow up to our March 20 email in which we urged you to modify or postpone a vote on the proposed changes to the Independent Police Review Division, currently scheduled for Thursday at 2 PM.
<  https://www.portlandoregon.gov/auditor/article/635119>

We continue to believe you need to incorporate the stakeholder report written by John Campbell at the behest of the City into the proceedings.
< link to www.cdri.com
While we understand Mr. Campbell will be out of town, we are hoping someone can refer to the report and Mr. Campbell's remarks.

Even after we called attention to the IPR not mentioning the Stakeholder group in its paperwork for the agenda, they did not modify their cover sheet to include it.

We still believe further public process involving Stakeholder input is needed to review the parts of the ordinance not subject to the November
Stakeholders' purview. That said, we wanted to summarize our main concerns with the draft ordinance.

1) Public Testimony Should Be Taken Before CRC Votes at Hearings

Though the City Attorney continues to insist on being overly cautious, it is far-fetched to say an officer's discipline could be overturned based on public input at a hearing. (Something they admit has never happened.)

On April 5, the Citizen Review Committee voted 9-0 to keep public input where it is, before the votes at the Case File Review and Appeal hearings. This is a strong statement in their confidence that public input is helpful, but that it will not cause them to veer from the ordinance's directive to consider evidence in the official record (3.21.160 [B])

As we noted before, someone could read that section of City Code before public testimony as a reminder; perhaps a "process monitor" chosen from among CRC members/alternates and/or a staff person. The "process monitor" needs to be neutral and not try to influence CRC's decision, just keep them on track regarding this and other procedural matters.

Removing public comment to "the end of the meeting" (as contemplated for Appeals in 3.21.160 [A] and for stand-alone Case File Reviews in 3.21.150[B]) or "after the committee has made its recommendation to the Bureau" (when the Appeal Hearing happens on the same day as the CFR, also 3.21.150[B]) makes it more or less meaningless. If CRC members decided to call for reconsideration after hearing input, it would only delay the process, and if they truly wait until the end of the meeting (rather than the end of the hearing), most of the parties will have already left. Not to mention that persons who wish to make comments may come solely for the hearing but would have to sit through an hour or more of other CRC business before weighing in.

The goal of changing this ordinance has been to help speed up the time that cases take to get through the complaint system. That goal is looking at days, weeks and months, not the 15-20 minutes it takes to hear public input at CRC meetings. Do not vote for the ordinance as written as it will bar CRC from hearing input, even if they one day decide to change their protocols to restrict it.

2) Relieve the Burden on CRC Members By Broadening the Available Number of Volunteers

While we would not object to Council expanding CRC from 11 to 13 or 15 members (as suggested by the Stakeholder group), we still feel the best solution would be to create legislation allowing civilian members of the Police Review Board pool to rotate in on an as-needed basis to assist CRC. Their training is mostly the same, and as Council learned when hearing the Taser case in February, it is possible to learn the differences between the "reasonable person" and "preponderance of the evidence" standards of review. CRC members currently have to do so when they sit on PRB panels. Of course, another solution would be to change CRC's standard of review so it is not so deferential or confusing, since Council has the final say and CRC's votes are only recommendations.

Related to CRC's concern that there aren't enough members to attend 5-person panels reviewing appeals, it's crucial that CRC volunteers at least show up to as many meetings as possible. On Wednesday morning at 9:45 AM you will be considering the reappointment of Mr. Jim Young to the CRC. Mr. Young has made some valuable contributions to the CRC, including his advocacy for a less deferential standard of review and asking that CRC should hear deadly force appeals. He's also made statements we've disagreed with. We want to make clear that these concerns are not personal. We have checked CRC minutes and our records and found that of 15 CRC meetings held from May 2016 to April 2017, Mr. Young only attended 5 of those meetings.

CRC protocol 5.23 states:
"It is the responsibility of each CRC member to attend all scheduled meetings. Excusals may be granted for occasional schedule conflicts, illnesses, etc."

We would suggest that missing 10 of 15 meetings falls outside the "occasional conflicts" contemplated by the protocol, and that Mr. Young should not be renewed for another term, rather, Council should ask the Auditor to present one of the alternates for appointment.

3) Other Problems with the Proposed Ordinance:

--"Supervisory Investigations" should be called "Non-Disciplinary Complaints," because that is a more accurate name and won't make civilians feel that only the officer's supervisor is looking into their concerns. IPR will be doing intake and approving a Supervisor's finding. Because there are now findings, civilians should be able to appeal if there is no wrongdoing found; the draft ordinance prohibits appeals.

--Section 3.21.110 [A][4] allows IPR to ask the Bureau to open a deadly force investigation if they think the force used was potentially lethal. The ordinance should require the Bureau to open such an investigation upon IPR's referral, and/or allow IPR to conduct its own deadly force investigations.

--Section 3.21.120 [C][4][d] allowing IPR to dismiss a complaint if it is "trivial, frivolous, or not made in good faith" should be removed, as it is too subjective.

--Section 3.21.120 [C][4][e] allowing dismissals when there is "clear and convincing evidence the officer did not engage in misconduct" should also be removed, as the only way to obtain that evidence is to include an interview with the officer. If the complainant identifies the wrong officer, that doesn't mean misconduct did not take place.

--Complainants should be allowed to address the Police Review Board.

--To truly speed up the process, Council should drop Section 3.21.160 [A][1][c][2] which provides for a "Conference Hearing" if CRC and the Bureau do not agree on a finding. Let the Bureau and CRC make their arguments before City Council.

--Provide for true advocates to assist complainants from the time they file a complaint, or at least in preparing for and during the Appeal Hearing.

--Allow CRC to send cases back to add or refine allegations. The ordinance is currently silent on whether they can do this, so IPR and the Bureau do not have to respond when CRC makes such a request.

--Allow IPR to compel officer testimony and make other changes suggested by the 2010 Stakeholder group.

4) A Few Welcome Provisions

We are always reluctant to shower praise on IPR or the Bureau as they tend to latch onto such praise and ignore our many concerns. However we do want to add that the changes we support in this draft include:

--Requiring IPR to be notified when an officer is under criminal investigation (3.21.110[A][3]).

--Protecting those making complaints from retaliation (3.21.110[D])-- something the DOJ asked to be clarified in Bureau Policies but which still hasn't been done adequately.

Thank you for your time. We look forward to testifying on Wednesday and Thursday this week.

dan handelman
--Portland Copwatch
(a project of Peace and Justice Works)
PO Box 42456
Portland, OR 97242
(503) 236-3065 (office)
(503) 321-5120 (incident report line)
 copwatch@portlandcopwatch.org
 http://www.portlandcopwatch.org

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