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The City of Portland, Oregon

Independent Police Review

Independent Police Review is a police oversight agency, and is independent and autonomous from the Portland Police Bureau.

phone: 503-823-0146

fax: 503-823-4571

1221 SW 4th Avenue, Room 140, Portland, OR 97204

December 11, 1997

DECEMBER 11, 1997
Citizen Advisors Present: Charles Ford, Presiding; Marina Anttila; David Burney; Les Frank; Deborah Haring; Leora Mahoney; Emily Simon; Jim Taylor; Robert Ueland; Randy Weisberg; Robert Wells
Citizen Advisors Absent: Stephen Heck
City Staff Present: Sgt. George Babnick, Internal Affairs Division (IAD); Assistant Chief Lynnae Berg, PPB; Lisa Botsko, PIIAC Staff; Adrianne Brockman, City Attorney's Office; Lt. Ed Herbert, PPB; Sgt. Randy Killinger, IAD; Officer Leo Painton, Portland Police Association; Sgt. John Smith, IAD
Media Present: David Anderson, The Oregonian; Dan Handelman, Flying Focus Video; Erica Troseth, KBOO Radio

Ford called the meeting to order. Advisors approved the November minutes.
Botsko provided updates on the following PIIAC appeals:
#97-13: This was a use-of-force case that had come before advisors before. It involved a traffic stop where the subject could not, or would not, produce his license, claiming he was sitting on his wallet. It escalated to "distraction blows" when the officer attempted to physically remove him from the vehicle.
Advisors had previously requested that the PPB Review Level Commitee reconvene to examine the finding regarding overall officer performance, with PIIAC participation. As reported at the previous month's advisory meeting, the Review Level members voted to retain the original findings supporting the officer's actions. Since then, Chief Moose had reviewed the case and decided the finding regarding overall performance should be changed to Sustained, meaning the officer's performance did not meet Bureau standards.
As advisors had previously suggested reviewing this case at the January meeting, Botsko asked them if they wanted to proceed in light of the changed finding. Simon made a motion to close the case; Anttila seconded. The motion carried unanimously [Y-11].
#97-15: Advisors had returned this case for additional investigation several months earlier. Botsko said that in the meantime, the officer had left the Bureau and PPB has closed the case.
Discussion: City Attorney Opinion: Advisors had previously requested an opinion from the city attorney's office on questions of contested findings. Specifically, they asked whether PIIAC City Code language makes Council recommendations binding on the Chief, and if not, what legal barriers exist to implementing such a requirement.

The opinion had been completed and distributed to advisors. It stated that if City Council, acting as PIIAC, believes a finding should be changed, the Chief still has the ability to accept or reject that recommendation. In addition, the opinion stated that it would be impossible to separate the issue of findings and disciplinary action, without risking problems with fairness and equity. Any changes in policy that could affect disciplinary matters would be subject to collective bargaining.
Simon said that she had a conversation with City Attorney Jeff Rogers about the advisors' main concerns, and suggested that advisors work with the city to suggest what kind of communication should happen in those instances when the Chief does not accept a PIIAC recommendation. Presently he responds to Council in writing, but this method does not allow PIIAC to completely understand what information and method used to arrive at his decision. A City Council informal is tentatively planned for February 3 in order to discuss this, and other PIIAC issues. Simon suggested having a subcommittee meeting December 18 at noon in order to discuss options. It was decided to have the meeting in the Mayor's office. Advisors were agreeable.
#97-22: Ford asked the appellant to address the committee. She stated that Officer A reached for her arm and pulled her out of her house while awaiting a drug search warrant, which she believed constituted excessive force. She did not agree with PPB's exonerating Officer A. Part of her complaint was that other officers failed to take appropriate action when an officer from another agency leaned against a backyard shed (while standing atop a fence separating her yard from an adjoining property). This officer punched a hole in the shed wall. She believed the appropriate finding should be "Insufficient Evidence" since the IAD investigation failed to establish what other officers did or did not see. She objected that not all of her witnesses had been interviewed. She also stated that the case took far too long to resolve, and that IAD Sgt. Killinger made improper remarks and threatened her during one of their conversation. He told her that if he were the District Attorney he would not have had the charges dropped, and he could still have the DA reopen the charges against her. He then said if she was planning to use that conversation against him in a PIIAC hearing, he would not talk with her. She said that tapes of this conversation were apparently missing.
Wells and Botsko summarized. PPB officers conducted a "knock and talk" at the appellant's home. That is, they had received information that the appellant and her husband may be growing marijuana, and so officers attempted to learn what they could by speaking with the appellant, and perhaps gain consent to search. Officers reported seeing marijuana plant material in the front-yard flower beds, which provided additional probable cause to obtain a warrant.
Both appellant and officers agreed that she would not consent to a search, and insisted officers obtain a warrant. Officers did so, and in the meantime, some officers went onto adjoining properties with the owners' consent to see what they could learn about a shed in the appellant's back yard. The appellant claimed that officers trespassed onto her property, and that one officer (from a different law enforcement agency) stood on a fence at the rear of her property, leaned against the shed, and actually made a hole in the wall. Part of the complaint was that PPB officers pulled the appellant out of her home and improperly detained her.
After the service of the warrant, marijuana plants were confiscated according to officer reports and photographs. IAD provided these photographs for advisors' review. The appellant wanted to know when the photographs were taken. Sgt. Killinger said that some were taken at the time the day the search warrant was served, and depicted the marijuana plants and growing equipment that were confiscated. Others, depicting a view of the shed, were taken approximately one year later. The appellant objected to these photographs being made available to advisors; Sgt. Killinger said that this was not a court of law and advisors had access to materials in IAD's files.
Botsko and Wells both described the IAD investigation as thorough and sufficient. Nothing the appellant described constituted a violation of General Orders or search and seizure policy. Officers were allowed to be on her property to contact her. They were procedurally allowed to detain her once they had probable cause to obtain a warrant, particularly with the potential for the appellant to destroy evidence. In officer interviews, none indicated they had observed the officer from the other agency leaning against the shed. Interviews and photographs confirm that the shed is somewhat obscured by arbor vitae.
The officer from another agency was in error, as corroborated by eyewitness testimony from a neighbor. The appellant had filed a complaint with his agency, which resulted in a sustained finding against that officer. Simon asked whether Sgt. Killinger had been able to obtain a copy of this investigation. He replied that he had reviewed the file, but later returned it to the agency and it was destroyed.
Wells said he had reviewed 12 tapes and asked Sgt. Killinger if any were missing. Sgt. Killinger said that all of the actual interview tapes were available in the file, but that he had several conversations with the appellant after the investigation was finished. He did not recall which of these conversations, if any, he taped, but he had not been able to locate other tapes.
Simon asked A/C Berg if she had been present at the "knock and talk," as indicated in police reports. Berg said that she showed up after the the appellant was outside with officers, stayed briefly and then left.
Weisberg asked why the charges had been dropped. Sgt. Killinger said it was because of the officer from another agency who had leaned against the shed.
Anttila asked why not all witnesses were interviewed. Sgt. Killinger said that there was no need to interview everyone named, as there was no factual dispute about what officers were or what they had done. He had been unsuccessful in his attempts to contact the appellant's aunt. The appellant said that she was given only a week to have this aunt contact IAD.
Wells made a motion to affirm PPB's findings; Taylor seconded. The motion carried [Y-8; N-Anttila, Simon; Abstain-Haring].

Public Input:
Nena Williams asked to be kept apprised of the issue regarding the Chief's response to PIIAC recommendations.
Dan Handelman asked why the appellant in tonight's appeal was asked to address the committee before the summary was given. He thought this was awkward and made it difficult to follow. The appellant then did not have enough time to respond. Anttila agreed. He also asked about the monitoring issues in this case.
Regarding the Chief's response issue, he said he wanted the advisors to pursue changing the Code and if need be, the police union contract. He did not think the Chief should have the final say on contested cases because then all of the advisors' hard work comes to nothing.
He mentioned that he had recently taken a trip to Iraq and had his video equipment confiscated upon returning through Customs. He said he would be happy to talk about his experiences with anyone who was interested.
Botsko asked to respond to Handelman. She said that she resented his comments implying that advisors' and her work was meaningless if the Chief did not accept recommendations on a contested case. The cases that have gone to the Chief comprise a small percentage of the work that advisors do; their work has a great deal of meaning, particularly through the ongoing monitoring and appeals.
With respect to "monitoring issues" that the appellant brought up, Botsko said that she does not expect IAD to tape record every conversation they have with complainants who may call
frequently. In addition, she has audited a number of tapes of Sgt. Killinger's interviews and he has always been very professional and objective with complainants. Botsko listened to several taped conversations of Sgt. Killinger and the appellant. The appellant seemed more interested in talking than in listening and appeared to misinterpret some of what was said to her. Botsko had this same experience in conversations with the appellant.
Simon said that she had not wanted to address that issue because it would have dragged out the discussion further. She has seen Sgt. Killinger keep his cool in confrontational situations. She did object to A/C Berg dual involvement in the case, as decision-maker and having been in attendance at the incident for part of the time, which is why she [Simon] had voted against affirming the findings. Wells said that in his audits of IAD cases interview he has observed Sgt. Killinger always treat complainants courteously.
Ueland said that the for him, the only monitoring issue was the lack of timeliness, which has been an ongoing problem with other cases.
The meeting adjourned.
Respectfully submitted,
Lisa Botsko
PIIAC Examiner