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August 21, 2007

 Minutes
Citizen Review Committee
August 21, 2007
Approved September 18, 2007
 
CRC Members Present:  Hank Miggins (Chair), Michael Bigham, Josephine Cooper, Loren Eriksson, Sherrelle Owens, Marcella Red Thunder, Lewellyn Robison, Robert Ueland
 
CRC Member Absent:  Robert Milesnick
 
City Staff Present:  Gary Blackmer (City Auditor), Leslie Stevens (IPR Director), Michael Hess (IPR), Lauri Stewart (IPR), Derek Reinke (IPR), Shane Abma (City Attorney’s Office)
 
Portland Police Bureau Members Present:  Lieutenant David Famous (IAD), Lieutenant Robert Heimbach (Southeast Precinct); Commander Michael Reese (Central Precinct), Detective Rachel Andrew (IAD)
 
Chair Miggins called the meeting to order at 5:34 p.m.
 
I.     Introductions of CRC members and meeting attendees  
 
II.    Approval of Minutes of 6/19/07CRC Meeting:  Mr. Eriksson moved to approve the minutes.  Mr. Ueland seconded the motion.  The motion passed unanimously. 
 
III.   Director’s Report
 
A.    To date IPR has closed 35 cases that were eligible for appeal.  The appeal period has not yet run on five of those. 
 
B.    There was one new PPB directive on new training requirements regarding firearms.
 
C.   The IPR Tort Protocol was provided to the Protocol Workgroup to review.  They made some comments, which have been included in the draft protocol.  The draft protocol will be posted on the IPR/CRC website this week and CRC members and the public will be given thirty days from next Monday to provide comments.  Comments may be called in or emailed to IPR.
 
D.    Chief Sizer said she will provide her comments on the draft Tow Policy Report prior to the September CRC meeting.
 
E.     An updated table of contents for the protocol notebook is in the CRC packets.
 
F.     Tonight is Lauri Stewart’s last CRC meeting.  Director Stevens does not anticipate having a new outreach coordinator on board by the next CRC meeting.  
 
G.     Chief’s Forum  and Community Outreach (Lauri Stewart)
 
•  Recent Chief’s Forums included a presentation on National Night Out activities and a presentation by the Transit Division similar to the presentation they made to CRC.
 
•  Three cities have called IPR to inquire about IPR and CRC matters.
 
IV.    Mr. Ueland entered into the record a statement from Shauna Curphey, attorney for the appellant for case number 2006-C-0465, confirming her conversation earlier today regarding her client’s decision to withdraw her appeal in case 2007-X-0006. 
 
V.     Appeal Hearing: CRC No. 2007-X-0003 (IPR/IAD No. 2005-C-0400).  Appellant alleged that Detective A illegally searched his house, his garage, and one of his cars and that Detective A told the appellant’s wife that the appellant was a drug dealer.  
 
Neither the appellant nor his attorney was present for the hearing.  Detective A was present and presented testimony on his own behalf.  Lieutenant Heimbach was available to answer questions about the Bureau’s findings.  Following Detective A’s statements, there were follow-up questions and discussion by CRC; rebuttal statements from Detective A; and public testimony from Alejandro Queral (NorthwestConstitutionalRightsCenter), Dan Handelman (Portland Copwatch), and  Victoria Leary (League of Women Voters).
 
Chair Miggins called for a motion regarding the first allegation being considered, that Detective A entered and searched the appellant’s house and garage illegally.  Mr. Bigham made a motion to affirm the Police Bureau’s finding of Conduct: Exonerated.   Ms. Owens seconded the motion. The motion passed by a vote of 6-2.   
 
Yes:  Bigham, Cooper, Miggins, Owens, Robison, Ueland
No:   Eriksson, Red Thunder
 
Chair Miggins called for a motion regarding the second allegation, that Detective A told the appellant’s wife that the appellant was a drug dealer.  Mr. Eriksson made a motion to affirm the Police Bureau’s finding of Conduct: Insufficient Evidence.  Mr. Ueland seconded the motion. The motion passed by a vote of 7-1.
 
Yes:  Bigham, Cooper, Eriksson, Miggins, Owens, Robison, Ueland 
No:   Red Thunder 
 
Chair Miggins called for a motion regarding the third allegation, that Detective A searched the appellant’s car illegally at his residence.  Mr. Ueland made a motion to affirm the Police Bureau’s finding of Conduct: Insufficient Evidence.  Mr. Eriksson  seconded the motion.  The motion passed by a vote of 7-1.
 
Yes:  Bigham, Cooper, Eriksson, Miggins, Owens, Robison, Ueland 
No:   Red Thunder 
 
VI.    Policy and Training Issues 
 
•  Mr. Ueland raised the issue of community caretaking and whose responsibility it is to secure the home or property of a person who is placed in custody.  In this case, Detective A took it upon himself to secure the appellant’s home when the appellant was arrested, but there is no policy on this.  Chair Miggins asked Mr. Ueland to capture his concern in writing and pass it on to Mr. Milesnick to add to his list of issues.  Mr. Ueland said he will try to retrieve a previous email message that he sent to the CRC about this some time ago and make sure that Mr. Milesnick receives a copy. 
 
•  Ms. Owens spoke to credibility issues and how the credibility of the parties to an appeal is weighed.  She expressed a desire to come up with a way that the CRC may objectively measure a person’s credibility. 
 
[At this point the gavel was turned over to Vice-chair Bigham.]
 
VII.   Discussion of Issues Surrounding Appeal No. 2007-X-0006  (withdrawn by appellant)
 
•  Mr. Eriksson noted that there were no photographs in the file of the appellant’s injuries.  He said he wished that photos had been taken of her injuries at the time of the incident. 
 
•  Ms. Robison asked for an explanation regarding the rules of detention in cases where an officer has no reason to arrest the person and regarding the obligation of the citizen to stay (such as in this case, where the officer wanted the appellant to stay put pending their investigation, but the appellant did not want to stay and tried to leave.)  Commander Reese responded that in most cases when officers are called to a scene, people who are involved in a possible crime would like to leave, but officers have a legal right to detain these persons pending an investigation.  He also stated that officers are allowed to detain persons in specified instances of community caretaking.  Director Stevens added that the statute on detentions allows an officer who has reasonable suspicion that a crime may have occurred and that a specific person may have been involved to stop and detain the person for as long as is reasonably necessary to investigate. 
 
•  Mr. Miggins said that he has seen several cases where encounters between the police officer and the complainant have escalated.  He thought that this incident appears to have been a case of escalation by the officers rather than de-escalation.  Commander Reese explained that in this incident, the person tried to leave the scene, so at that point the officer needed to place hands on the person to keep her at the scene and to tell her that she was not free to leave.   He said that by using control measures the officers may have actually prevented an escalation to a possible foot pursuit or a chase, thus limiting the risk of injury to the person and to the police officers. He added that de-escalation skills training and recognition of various medical and mental health issues are part of the CIT training that all officers will be receiving. 
 
•  Mr. Eriksson had a problem with portion of the IAD letter of disposition that stated that one of the involved officers had spoken with a medical person at the hospital, and it appeared that the commander’s reasoning in making a finding was based on that conversation.  Commander Reese said he reviewed the file today with Lieutenant Famous in Internal Affairs, and there was new information in the file that he did not have when he made his finding, because the complainant did not grant them permission to look at that when he made his finding. Commander Reese said that he looks at the sum of information that he has available and tries to draw conclusions from that.  Mr. Eriksson clarified that his specific concern was that the medical person was not qualified to make an expert opinion, but it was portrayed that way.
 
[At this point the gavel was returned to Chair Miggins.]
 
VIII.  Workgroup Reports
 
A.     Tow Policy Workgroup (Mr. Bigham):  As reported by Director Stevens, the draft Tow Policy Report is currently on the Chief’s desk.
 
B.     Protocol Workgroup (Ms. Robison):  The Protocol Workgroup met on August 13 and discussed revisions to the Mediation Protocol, the Tort Claim Protocol, and the Appeal Process Protocol.  Comments received concerning the draft CRC Members Responsibilities Protocol will be discussed at the next workgroup meeting, which will be on September 24 at 9:00 a.m. at IPR. 
 
C.     Bias Based Policing Workgroup (S. Owens):  The workgroup will be meeting tomorrow August 22) at noon.  The workgroup will be looking at the methodology for file selection and finalizing the file review workplan.  
 
IX.    Mr. Miggins asked Alejandro Queral and Dan Handelman to update the CRC regarding the Mayor’s Racial Profiling Committee. 
 
•  Mr. Queral stated that the Mayor’s Racial Profiling Committee has been meeting since January and has recently been divided into three subcommittees: a data analysis subcommittee, a policy and practices subcommittee, and a subcommittee dealing with ways the police and the community can work together to build relationships and increase the trust between the community and the police.   The Racial Profiling Committee is composed of members of community organizations and police officers.  Chief Sizer and JoAnn Bowman are co-chairs of the committee. 
 
•  Mr. Handelman added that he and Mr. Queral are both on the data collection subcommittee.  The last thing this subcommittee did was to ask the Police Bureau and the IPR Director to help them to obtain racial statistics from the Use of Force reports.  Mr. Bigham noted that he and Mr. Eriksson were members of the Use of Force Committee, and they asked for similar data.  He said that the race, sex, and age of officers were published, but the race, sex, and age of citizens were not.  They were told that it was very difficult to obtain that information, but it would be available for the next review. 
 
X.   Old Business 
 
Chair Miggins introduced a discussion of the Police Bureau’s acceptance of CRC’s recommendations on CRC Appeals 2007-X-0004 and 2007-X-0005.   Mr. Eriksson said that he asked for this to be on the agenda because there was a previous appeal that was sent back to the Police Bureau with recommended changes, which and the Bureau altered.  Ms. Stevens said that she set that case for a Conference Hearing to make it clear to CRC that the Bureau’s response was not exactly what they had asked for.  Mr. Eriksson said that he felt that it went through too quickly, and this is why he wanted time set aside on tonight’s agenda so that if anyone had anything to say, they would have a chance to do so.  There was no further discussion.   
 
XI.   New Business
 
Chair Miggins proposed appointing a new workgroup to review PARC reports and said that Mr. Bigham and Mr. Eriksson have agreed to serve in this capacity. Director Stevens stated that there have been two follow-ups to the original PARC report, and the additional recommendations that were made in the follow-ups have not yet been looked at by PARC for compliance.  The PARC Report Review Workgroup will be asked to look at the first and second follow-ups.  Ms. Cooper and Ms. Red Thunder also volunteered to serve on this workgroup.  The first meeting date has not yet been decided.
 
Ms. Owens stated that the appeal hearing process has been confusing for her.  Director Stevens mentioned that there is a goldenrod-colored handout that should have been in tonight’s packets that clearly outlines the various stages of the appeal hearing.  Ms. Owens asked the Chair to clearly define each stage of the hearing process during future hearings, and Chair Miggins agreed to do so.
 
Ms. Red Thunder stated that it is disrespectful in her culture to not offer to make a meal available to everyone, but for some to just eat in front of others.  She said that it is her understanding that the CRC applications have to be submitted by the end of this month.   She felt that this deadline should have been “hammered in” at tonight’s meeting   She said she would like to see changes in the way CRC members are chosen in order to better represent the community. 
 
Ms. Cooper agreed with Ms. Red Thunder on the food issue.  She also highly recommended an interactive “Theater of the Oppressed” in which she recently participated.  She thought it would be beneficial for the CRC to consider holding a special session to share in this experience.
 
XII.  Public Comment and Wrap-up
 
Mr. Miggins raised the issue of executive sessions.  He said that for one of tonight’s hearings there was a request for an executive session to be held.  It was unclear to him whether the request was to hold the entire hearing in executive session or to call an executive session only for certain specific matters.   Mr. Miggins asked the City Attorney if it would be permissible to hold an entire hearing in executive session.  Mr. Abma responded that there is a specific executive session process for discussing medical issues, but there is also a very broad executive hearing rule that provides that hearings be held in executive session any time that a public official is facing disciplinary hearings, which the CRC hearings could be characterized as.  Mr. Abma believes, however, that this would break the spirit of what Portland is trying to accomplish with the process we have in place.  He said if CRC would like more research on this issue, he would be happy to provide that.  Mr. Miggins said he would like something more concrete on this, because he does not want entire hearings to be held in executive session.  He said he does not have a problem with holding executive sessions for specified matters, but he believes CRC hearings should be public. 
 
Mr. Ueland asked that IPR be more aggressive in attempting to obtain release of medical information during investigations.  Director Stevens said she believes “a pretty good balance” is struck, but welcomed CRC to send cases back for more investigation if they disagree.  She noted that if a complainant does not return the release for medical information, no medical provider may provide the information, which ties the hands of IPR and IAD in terms of asking questions about it.
 
Ms. Owens asked what recourse an appellant would have if a CRC member violates the person’s confidentiality.  She asked if an individual member would be responsible for his or her breach of confidentiality, or if the CRC as a whole would be held responsible.  Mr. Abma responded that he would need to do further research before he could give a firm answer to this question.  However, his “gut reaction” was that it would probably depend on whether the breach of confidentiality was negligent or intentional.  He said there might be some type of immunity for persons who are on a public board, but he was not sure about this without doing more research.  As for what an appellant could do if their confidentiality is breached, he said that anyone can file a lawsuit.  Mr. Abma said he was willing to do more research on this, and Ms. Owens said she would be interested in that.   Mr. Abma reminded CRC members that it is important for each and every one of them, and especially the Chair, to act as guardians of confidentiality at the meetings. 
 
Ms. Cooper requested information on whether information regarding involuntary commitment proceedings is private or public information.  Chair Miggins asked Ms. Cooper to put her concerns about this in writing.
 
Mr. Ueland said it has always been his understanding that the City will defend him on anything he says or does in good faith in a public hearing.  Director Stevens said that a CRC member could personally be sued, but as long as they are acting in the course and scope of their duties as a CRC member, the City would have an obligation to defend and indemnify them.  Ms. Owens proposed that the CRC be provided training regarding confidentiality.  Director Stevens said she would be happy to work with the City Attorney’s Office to come up with confidentiality training.  Chair Miggins suggested the possibility of setting aside time at one or more future meetings to have refresher training to deal with the how to handle hearings generally, from the review of files through the entire hearings process.
 
Lauri Stewart reported that the persons running the Enhanced Safety Properties pilot project have accepted an invitation to present to the CRC at their September meeting.  Ms. Stewart said that the concept of the Enhanced Safety Properties came from an officer who transferred to Portland from Arizona, where there was a similar program, and it was an idea that had already been talked about in the Office of Neighborhood Involvement’s Crime Prevention Program. 
 
Debbie Aiona (League of Women Voters):  Ms. Aiona asked CRC for the benefit of the public to give a short description of what the case is about when discussing a specific case or discussing the Police Bureau’s response to CRC’s recommendations on a particular case.  Ms. Aiona suggested that a CRC member be designated as a process monitor or parliamentarian so that everything does not fall to the Chair to keep the process in order. 
 
Dan Handelman (Portland Copwatch):  Mr. Handelman expressed concern about the Police Bureau’s decision to combine Insufficient Evidence and Unfounded into one finding.  He commented on Commander Reese’s statement that there was new information in the case file that was not in the file when he made his decision.  Mr. Handelman said this proves his point that the standard of review should not be whether a reasonable person could make the finding based on the evidence that was in the file, but that the finding should be based on all the evidence, including any evidence that exists in the file after the finding was made.  Mr. Handelman said if tonight’s second hearing had taken place, the CRC would have considered not only whether the police officers were allowed to use force, but whether that force was excessive.  Mr. Handelman suggested  that when a response to a CRC recommendation comes back from the Police Bureau, the entire letter should be read into the record.  Mr. Handleman thought the CRC should receive more constitutional rights training.  Mr. Handelman supported Ms. Cooper’s suggestion that the CRC involve itself in the interactive theater.  He suggested that when an appellant does not show up for a hearing that their statement be read into the record as has been done in the past.  Mr. Handelman thanked the Chair for reading each allegation before voting took place.
 
Mr. Ueland stated that the issue came up tonight as to why the first case took so long.  He proposed that in the future IAD be asked to prepare an explanation for the time taken to complete an investigation in case they cannot be at the meeting to discuss it.  Chair Miggins said that he would send an email about this.  
 
Mr. Bigham expressed appreciation to Lauri Stewart and stated that she will be missed.  
 
XIII. Items to be added to the Tracking List
 
•  Ms. Cooper’s suggestion about interactive theater
 
•  Ms. Owens’ suggestion about confidentiality training
 
Chair Miggins adjourned the meeting at 8:33 p.m.