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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

March 12, 1998

MARCH 12, 1998
Citizen Advisors Present: Charles Ford, Presiding; Marina Anttila; Gene Bales; Les Frank; Deborah Haring; Leora Mahoney; Emily Simon; Robert Ueland; Randall Weisberg; Robert Wells
Citizen Advisors Absent: Steve Heck; Jim Taylor
City Staff Present: Capt. Bill Bennington, IAD; Lisa Botsko, PIIAC Staff; Adrianne Brockman, City Attorney's Office; Sgt. Randy Killinger, IAD; Sgt. John Smith, IAD
Media Present: Maxine Bernstein, The Oregonian; Dan Handelman, Flying Focus Video

[Anttila and Simon not yet present.]
Ford called the meeting to order and introduced new citizen advisor Gene Bales, replacing David Burney and representing the East Portland area. [Simon arrived.] Advisors accepted January and February meeting minutes, approving one amendment from Emily Simon to the February minutes.
Ford said he was pleased that most advisors were able to attend the special work session. He felt that it was productive and hopes to do that more often. Advisors benefit from discussing what is and is not working well for them. Weisberg said that it is hard to be prepared when meeting materials arrive late. Sometimes it can take a couple hours to read through everything.

PIIAC Appeal #98-02: Mahoney and Botsko reported. The appellant was part of a group drinking in a park. A citizen called in to complain, and when officers arrived, the appellant left on his bicycle. An officer followed him out, met up with him about a block away in a residential front yard. The appellant stated that the officer tackled him to the ground and pepper-sprayed him for no good reason, he was not offering resistance. The officer said he was, that he used one burst of spray. He tried to offer water but the appellant claimed that burned even more. The resident was interviewed; she only observed a portion of the interaction, after the appellant was on the ground and handcuffed. She did not see what led up to that. She described the appellant as seeming and drunk and loud.
The appellant also claimed that the officer was discourteous and called him a name while transporting him to the detox center. He said that the officer deliberately knifed a hole in his bicycle tire.
Hooper detox records reflected that the appellant was judged to be intoxicated, and detained for a period of time.

The Bureau determined that the allegations of excessive force and improper conduct were Unfounded. The finding regarding Communication (Courtesy) was Insufficient Evidence, based partly on the officer's admission that he did not recall whether he made a rude comment to the appellant.
The appellant addressed the committee and reiterated his complaint. He said that the charges on the tickets were a complete lie. Botsko advised that the appellant had never gone to court to contest the tickets, and the appellant said there had been a misunderstanding about the time and he was never contacted about rescheduling.
Capt. Bennington said that the appellant committed a violation by drinking alcohol in the park. According to the officer's testimony, the appellant ditched his bicycle, and was pepper sprayed when the officer was able to get in front of him. There are two different versions of the story.
Wells asked the appellant about his demeanor at Hooper detox. The appellant discussed another aspect of his stay at Hooper. Simon asked him if he still had the bicycle tire; the appellant said he did but was told there was no need to bring it to this meeting. Ueland said that the investigation revealed construction debris at the park; this could also account for damage to the tire.
Botsko said that the investigation was fairly complete, with the exception of the communication allegations. Simon asked for clarification on the officer's recall; Botsko said that a second interview had to be conducted with the officer to go over the communication allegations, and even then, not all allegations were explored. When the officer said he could not remember what he said, the interview was concluded. However, Botsko did not believe that additional investigation at this point would likely produce a different finding.
Ueland made a motion to affirm the PPB investigation and findings; Wells seconded. The motion carried [Y-8;N-Simon]. Simon explained that she voted no because she was unconvinced about the sequence of events involving the pepper spray use.

PIIAC Appeal #98-04: Botsko summarized. The complaint had been declined for investigation by IAD. The appellant and a companion had been holding campaign signs on an I-205 pedestrian bridge. A motorist contacted 9-1-1, complaining that traffic was slowing to read the signs. Officer A arrived and asked the sign carriers to leave. The appellant did not agree that his activities were hazardous; Officer A confiscated the sign. The appellant also stated that Officer A improperly detained him and demanded he produce identification. The appellant did so unwillingly. He was not cited or arrested. He had a tape recording of the encounter, which IAD had not reviewed.
Botsko said that IAD Capt. Bennington had declined the complaint, citing an Oregon State Dept. of Transportation administrative rule prohibiting banners. The appellant had written another letter, disputing the applicability of this administrative rule. Capt. Bennington then contacted the District Attorney to determine what legal support existed for the officer's actions, and wrote another letter to the appellant citing several potential violations.
The appellant addressed the committee, stating that he had never received this second letter. He was provided a copy to read. He told the panel he was on a public sidewalk. The message on his sign was no different than what was on billboards. He and his companion stood a healthy distance away from the railing, so the signs could not fall onto traffic. Other people have held signs on that walkway. He felt he should receive the highest level of political speech protection and that the officer did not know the law.
Simon and Weisberg asked some clarifying questions. Wells asked if the Officer explained his actions; the appellant said he was only told he posed a traffic hazard, but the officer could not cite what the violation was. Simon also asked where the conversation with the officer took place; the appellant said it was more off to the side of the walkway.
Simon made a motion to return the complaint to IAD for full investigation, including a review of the appellant's tape recording, interviews with the officer, appellant and appellant's companion. Weisberg seconded, saying he had a problem with IAD conducting a partial investigation before declining a complaint.
[Anttila arrived.]
Capt. Bennington said IAD had tried to contact the appellant without success. Botsko confirmed that a tape recording in the file reflected two messages left on the appellant's answering machine.
Ueland said he would support the motion. Botsko had a couple of concerns about IAD's handling of the complaint. Trying to learn what legal support exists for an officer's actions after the fact suggests that no clear policy or standard has been established regarding sign-carriers on public property. Relying on a citizen complaint of a traffic hazard may result in arbitrary enforcement. This is not a good position for the Bureau to be in with respect to possible first amendment issues. While consultation with a district attorney may be useful in formulating general policy, it should not be done to dispose of a particular complaint because the focus of the district attorney is different. That person makes a judgment based on an unquestioning acceptance of an officer's report. Botsko had earlier spoken with a deputy city attorney, and suggested PPB work with that person to clarify policy.
The motion passed unanimously [Y-10].

Announcements / New Business:

Ford announced that four citizen advisors would have 1½ hours to describe PIIAC's program at the NUSA spring conference. The focus of the conference is neighborhood-based programs. He proposed that the advisors meet to prepare.
Botsko summarized the previous day's PIIAC activities before City Council. An appeal heard in December, involving an arrest for a marijuana grow operation, was denied by Council. Also, an appeal heard the previous month from an attorney who claimed an officer was rude to him, was also declined based on the appellant's own action toward the officer. The Council also accepted the Fourth Quarter 1997 Monitoring Report.
Simon asked that advisors receive monthly updates on cases returned to IAD; for example, an appellant who had an altercation with an off-duty officer over a fender-bender. Capt. Bennington said that case has been in Central Precinct for adjudication and he will follow it up.

Public Input:
Dan Handelman addressed the panel. He summarized some written comments that had been distributed to Council members the previous day, and to all advisors.
He also commented on an appeal heard before Council the previous day. He had been asked by the appellant to testify on her behalf, because of her inability to communicate well under stress. Council denied that request. He thought she did well presenting her case, but felt the Commissioners did not really listen to her. She was requesting an Insufficient Evidence finding on one of the allegations. He also felt that commissioners were scrutinizing the appellants' behavior overly much; if they are going to do that, they should examine the officers' histories as well.
He commented on the appeals that had just been heard. He felt he did not hear enough about the cases.
Ford addressed the committee and mentioned the Garvey case. He said that the Mayor told him the city was appealing the judge's latest decision that the city should release materials.
Capt. Bennington also announced that Commissioner Kafoury, at the previous day's Council meeting, had given the green light for police-citizen mediations to resume. Ford said that two task forces had been formed to look at the history of the mediation program; the recommendation was for full funding to be implemented.
The meeting adjourned.
Respectfully submitted,
Lisa Botsko
PIIAC Examiner