SECOND/THIRD QUARTER 1998 MONITORING REPORT

Monitoring Subcommittee Members & Staff
Robert Ueland, Chair
Robert Wells
Lisa Botsko, PIIAC Staff

Approved by PIIAC Citizen Advisors
November 12, 1998

Submitted to City Council
December 9, 1998

CITIZEN ADVISORS
1998 SECOND/THIRD QUARTER MONITORING REPORT TO THE
POLICE INTERNAL INVESTIGATIONS
AUDITING COMMITTEE
(PIIAC)

The PIIAC Citizen Advisors Monitoring Subcommittee is responsible for surveying cases handled by the Portland Police Bureau's Internal Affairs Division (PPB/IAD) involving citizens and Police employees' complaints about alleged police misconduct. The Subcommittee analyzes complaints, IAD's investigations and Risk Management data to "highlight trends of police performance, suggesting necessary Police Bureau policy and procedural changes. Patterns of behavior, unclear procedures, policy issues and training needs may be identified for review."

 

The Chief=s responses to our Fourth Quarter 1997 and First Quarter 1998 reports are attached to this report. Most notably, the Bureau has translated the Internal Affairs Division complaint form and explanatory brochure into several languages, including Spanish, Russian, Chinese, Laotian, Vietnamese and Cambodian. They are in the printing process and will be distributed through normal channels. We predict that the one-time cost is worth the Bureau=s making the complaint system more accessible to non-English speaking complainants.

We requested that the Bureau research the legal and policy questions surrounding a complaint in which a suspect=s pager, cellular phone and bulletproof vest were seized as evidence of suspected drug activity, even though no weapons, drugs or paraphernalia were found on his person. (He was searched incident to a jaywalk arrest.) PPB received a response from the District Attorney=s office but have not yet received a response from the City Attorney=s Office. (The U.S. Supreme Court is currently reviewing a case involving issues of search and seizure incident to minor violations, and we will monitor the outcome.)

The communications training, based on the Crisis Intervention Training (CIT) program, was to have been incorporated into this year=s in-service training, but was removed along with other training segments when Operation 80, the Bureau=s recruiting program, was implemented.

 

PPB implemented six General Orders revising the Complaint Investigation and Disciplinary process. We have reviewed similar written policies in other U.S. law enforcement agencies and note that PPB=s are among the strongest and most comprehensive. Some notable changes include a broader criteria by which officers are identified for Command Review (now called Behavior Review) under the Early Warning System. Previously, Command Review was triggered only by an officer=s complaint history. Experts in the field of police conduct and complaint investigation issues agree that an Early Warning System (EWS) is a key component in fostering a high level of police accountability.

With the new EWS General Order, supervisory review will also be triggered by such factors as motor vehicle accidents, failure to appear in court, and tort claims. This latter component is especially important, since citizens who file tort claim notices alleging police misconduct do not always pursue a complaint through the Internal Affairs process. Previously the Bureau had not incorporated review of tort claim or lawsuit information into their police accountability practices. This is a welcome change, one that can be considered progressive, since research shows that almost all other large police forces do not adequately track or use tort information.

Bifurcation is now in place, which allows PPB to better address peripheral issues developed as a result of a complaint investigation. Typically these issues do not directly affect the finding on the main allegations. For example, a Use of Force complaint investigation may reveal that an officer=s use of force was appropriate, but that the officer did not properly document the action. Bifurcation allows the peripheral issue to be handled without the entire complaint reflecting a ASustained@ finding.

A new finding category has also been added. Not Sustained with Debriefing addresses those situations in which an officer has not violated a Bureau policy -- and therefore the complaint is not sustained -- but the incident may represent an opportunity for a supervisor to discuss alternatives in a non-punitive manner. In the past, no such mechanism existed and a supervisor might or might not discuss a particular incident with an officer. This finding represents a more formalized method of providing for an incident debriefing.

 

Human Rights Watch, based in Washington, D.C. and New York City, released a lengthy report, AShielded From Justice: Police Brutality and Accountability in the United States of America.@ This report, available on the internet and in book form, was a culmination of a two-year study in which Portland was one of fourteen cities reviewed. The good news is that the report states that Portland=s civilian oversight agency Afunctions better than most reviewed by Human Rights Watch@ and the Adepartment@ (PPB) has made some progress in the past few years. However, the report goes on to claim that human rights abuses continue in Portland and accountability is sometimes lacking, but refers only to specific incidents, all more than five years old, to support this particular thesis.

III. Research Brief: AAchieving Police Accountability

 

Dr. Samuel Walker, a national expert on civilian review who testified before City Council in 1996, named Portland as one of three cities that has Aproactive citizen review@ in his recently published research paper. He cites the importance of ongoing policy review as a component of citizen oversight, and the existence of an Early Warning System as progressive, but necessary, police practice.

During the second and third quarters 1998, PIIAC advisors accepted 4 new appeals. For the first time in years, advisors have not met monthly due to a decline in appeals. We do not believe we have enough information to analyze this trend.

We monitored an additional 27 closed IAD investigations. We monitor all closed cases that fall into the following categories: use of force, disparate treatment, complaints with sustained findings, and cases that went to PPB=s Review Level Committee. Cases with less significant allegations are not routinely audited unless they are appealed.

Cases reviewed for monitoring reflected the following types of allegations:

Property 3

Use of Force 19

Conduct 10

Disparate Treatment 1

Communication 10

Performance 0

Procedure 12

 

The findings reflected the following:

Unfounded 6

Exonerated 14

Insufficient Evidence 8

Sustained 6

Suspended 2

Declined 2

Sustained complaints had been initiated both internally (Bureau members) and externally (from citizens). Allegations that were Sustained included improper handling of property (theft/loss), officer inappropriately drawing and pointing firearm, failure to document handcuffing, conducting personal business while on duty without supervisory permission, violation of state law (off-duty), untruthfulness in an IAD investigation.

 

IAD statistics covering January 1 through September 30, 1998 reflect that 257 new complaints were received in IAD. Of those, 106 (41%) have been closed out, 58 (approximately 43%) declined. 151 of the 1998 complaints remain open. In 1997, 275 complaints were received, 150 of which remain open.

Time lags continue to be problematical in all phases of the investigative process. Of the cases we audited, we noted time spans of 1 2 week - 25 months, with an average of approximately 11.5 months. [We note that this statistic reflects our monitoring of mostly IAD cases which are more complex than those assigned to precinct-level investigators. Our statistics do not reflect overall Bureau averages.]

Of the cases that were closed most quickly, most were declined or suspended. IAD estimates that the average length of time for IAD investigations is closer to 12 - 14 months. Because IAD works more complex cases, and those with more significant allegations than precinct-level investigations, the importance of reducing lengthy investigative time frames is especially critical. The effectiveness and credibility of the Bureau=s complaint investigation process is significantly at risk if it does not do more to identify the causes of the timeliness problems and implement solutions.

Officers report not being informed about complaints lodged against them for months, then frequently more months go by after their interview before they are informed of the findings. Complainants have contacted the Mayor=s office to report significant delays in return phone calls from IAD or with case investigation, and they are understandably frustrated. In our monitoring of closed cases we observe as much as ten months= delay between initial complaint intake and the beginning of officer interviews. No matter how skilled investigators are, excessive delays are a handicap that adversely affect investigative quality. Officer performance or conduct problems may very well go undetected in a timely fashion. The Bureau exposes itself to potential liability from Apattern and practice@ claims.

Because PIIAC audits focus on closed IAD cases, assessing the reasons for current timeliness problems can be difficult. We can easily observe where delays have occurred, but not necessarily why. IAD investigators do not routinely include explanations for case delays in the investigative files, despite the Chief=s assurance that such a PIIAC recommendation would be implemented.

Although the Monitoring Subcommittee has traditionally reviewed closed IAD investigations, PIIAC City Code language does not preclude monitoring the progress of open investigations. PIIAC may wish to incorporate open cases in their audit routine, similar to external auditing practice in San Jose and Los Angeles. Comprehensive investigator work product reviews are labor-intensive and we doubt whether the Bureau currently has the supervisory resources to undertake these. PIIAC does not.

The following components must be in place if investigations are to be timely:

1. Accountability must consistently be emphasized from the top on down.

2. PPB/IAD must improve IAD recruitment and staffing.

3. IAD should continue to examine ways to improve timeliness, and secure any needed resources for optimal case management.

4. IAD investigators must be fully trained in how to conduct investigations and manage cases.

In the audits conducted the past two quarters, we observed an increasing inconsistency in investigative quality. Investigative quality and thoroughness tends to be strongest in cases involving officer integrity issues, and we have audited some excellent casework and interviews. In one case, the investigator very skillfully developed information not only about the incident in question, but also about an officer=s untruthfulness in an IAD interview.

However, quality has weakened with respect to citizen complaint investigations.

In listening to interview tapes, we have noted the following weaknesses:

These weaknesses in an interview can lead to an impression that the investigator may have drawn premature conclusions about the complaint. The investigator may appear to be overly amenable to whatever an officer says, or is even subconsciously assisting an officer frame testimony.

We also monitored some cases in which evidence was not obtained that would have enhanced the investigation. For example, we have previously requested that booking photographs and Multnomah County Health Dept. Corrections Entry Progress Form 111 routinely be obtained in cases where excessive force is alleged, but we noted several case files with these missing. One appeal also lacked crucial photographs or sketches of the location in question -- a significant aspect of the complaint.

We note at least two cases in which the investigator expanded the AInvestigator Observations@ portion of a report to compare and contrast testimony, or highlight weaknesses in complainant testimony. We renew our strong caution against this practice, because a well investigated and reported case should be clear to a reader without this type of investigator assistance. Appearing to judge the merits of a complaint should be strictly avoided by investigators.

We have made recommendations in previous monitoring reports about all of the concerns mentioned in this section. IAD made significant improvements after their 1995 restructuring, especially in the area of investigative quality -- they cannot afford to let quality decline, even in the face of timeliness or caseload constraints.

 

IAD Capt. Bennington prepares disposition letters in a timely fashion, and in an empathetic and friendly tone. However, the complainant is essentially told the complaint finding and the definition of that finding. We recommend that the letters provide more of the rationale for the finding. Complainants who believe they were in the right deserve an explanation for the finding.

 

Several cases audited, particularly involving excessive force allegations, reflected exonerations of officer actions that did not appear to be sufficiently supported by evidence. One case was appealed to PIIAC, then voluntarily withdrawn by IAD after an audit report identified investigative deficiencies. Other cases reviewed had similar deficiencies and would most likely have been returned for additional investigation or deliberation had they been appealed to PIIAC.

Excessive force complaints are not always simple to evaluate, because investigations frequently develop contradictory testimony with no corroborating evidence or witnesses. But we have observed that some PPB commanders are more apt than others to select a finding of AInsufficient Evidence@ in these circumstances, which we believe is a more appropriate finding when no compelling reason exists to weigh one version of testimony over another. It is our position that a complainant=s allegations cannot be dismissed solely because that person was arrested or cited, or because of factors like mental illness, alcohol/drug influence, odd behavior, affiliations or the existence of criminal history.

In one case, the complainant alleged that he had been deliberately injured in a punitive manner. The injury was, in fact, substantiated -- both by officer testimony and through medical records. The officer=s version of events differed from the complainant=s. The commanding officer, in his written rationale for exoneration, said it was Ahis opinion@ that the officer=s version of events was accurate. We note, however, the absence of significant corroborating testimony. The commander further opined that the nature and location of the complainant=s injuries Awere consistent@ with the officer=s account. What the commander did not explain is upon what medical expertise he based his conclusion, or what precluded the injuries from being medically consistent with the complainant=s allegations. This written rationale would appear very weak should it ever be subjected to cross-examination in a court of law. We also wonder whether the IAD investigator or commander was even aware that the subject officer had been alleged to have caused the exact same injury to a previous complainant in a similar manner. In that second case, numerous citizen witnesses corroborated the complaint; however, their testimony seems to have been discounted in favor of officer testimony, as the finding was also AExonerated.@ While we do not expect investigators to inquire into other complaints or allegations in an interview, or for adjudicators to decide the merits of a complaint based upon the existence of a similar complaint, any possible background information should be reviewed before an interview. The investigator must maintain an open mind regarding the merits of a complaint.

 

The Bureau can improve how it handles citizen complaints that do not fall under IAD=s purview. These complaints may be described as Aservice complaints.@

According to the new General Order pertaining to complaint handling, AComplaints received from the citizens regarding the quality of service they received from Bureau members may be resolved by a supervisor or manager of the member=s RU as long as the complaint does not allege misconduct and the complaint can be resolved to the satisfaction of the complainant. Complaints so resolved must be documented on a precinct/division Complaint Log . . . The documentation must include the action taken to resolve the complaint. RU managers will review the Complaint Log on a regular basis. Complaint logs should be reviewed for complaints, trends, supervisor resolutions, etc. Complaint logs will be retained at the RU according to the records schedule.@

The new General Order does not address how unresolved complaints should be handled, nor does it specify how complaint-log review and analysis should occur.

Service complaints can be difficult to categorize, since on some occasions they may in fact constitute Afailure to act@ under misconduct guidelines. However, they more frequently involve differences of opinion as to what extent the Bureau should respond to a particular incident or concern. In one instance that we know of, the complainant spoke to an aide in the Chief=s Office, who referred him to Internal Affairs to file a complaint. Unfortunately the service complaint was not an Internal Affairs (misconduct) matter, and the complainant ultimately received a declination letter from IAD. This does not make sense, and is bound to frustrate citizens.

We recommend that the Bureau examine ways that it can better resolve service complaints, respond to constituent contacts, and track the effectiveness of the new, related General Order. A police ombudsman may be one avenue. Such an ombudsman might be housed in the Bureau, but would have to maintain a professional and neutral distance. The ombudsman=s function would be to respond to citizen concerns, liaison as necessary to resolve service complaints, or if resolution is impossible -- obtain sufficient information to relay to the citizen. We also recommend that citizens with service complaints be provided written responses in a timely fashion. We are aware of several such complaints in which a citizen has been dealt with only by telephone, and sometimes by several different people. It can be difficult to coordinate responses when no written account exists of how the matter was handled.

III. Policy Concern: Individuals whose cars are towed

 

In a PIIAC appeal that was reviewed this past quarter, a mother was upset because her teenage daughter was left on her own after her vehicle was towed for failure to provide proof of insurance. The mother=s concerns involved the lateness of the hour (it had grown dark), the busy highway where the traffic stop occurred (I-5 Terwilliger curves), and of course the girl=s age. Citizen advisors were also concerned about the fact that the girl was out-of-state, in possibly unfamiliar territory. Although the officer interviewed said that the route she had to take to get to a public place was safe from traffic, well-lighted, etc., advisors note the absence of any PPB policy addressing officer responsibility to people whose vehicles are towed. (The General Order on towing does address the officer=s responsibility with respect to the vehicle and inventory.) We have heard anecdotal accounts from people with similar concerns. While we would hope that officers would exercise sound judgment in ensuring the safety of anyone left without transportation, there is no internal mechanism to address situations where lapses of judgment may occur and someone is left in a very vulnerable situation. We do not expect officers to transport people home, although we would hope that in appropriate situations officers may consider driving the motorist to the nearest telephone, or assisting in arranging other transportation. By Aappropriate situations,@ we mean motorists who are young, elderly, disabled, with young children, or any situation where their safety may be especially at risk. Therefore we recommend that PPB modify the Towing General Order to address officer responsibilities in such situations, with reasonable and manageable criteria.

 

In the Fourth Quarter 1994 Monitoring Report, PIIAC advisors reported on a conduct complaint that revealed a divisional failure to adhere to the Bureau=s timekeeping policy with respect to overtime or comp time. We recommended the Bureau and Bureau managers review their timekeeping practices to ensure compliance with the General Order. The Chief, in his written response, assured us this would be done and added that Aunit managers and supervisors are expected to monitor the accuracy and thoroughness of daily assignment/time records.@

In a citizen complaint monitored this past quarter, it was determined that the officers had in fact been conducting personal business while on duty, albeit a Aslow time.@ In this case, the complaint was appropriately sustained. One officer commented in his interview that officers in his unit generally operate with such flexibility because of the amount of overtime worked. The investigator did not obtain additional information about this practice.