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1st Quarter 1997 Monitoring Report

CITIZEN ADVISORS

FIRST QUARTER 1997 MONITORING REPORT

TO THE POLICE INTERNAL INVESTIGATIONS

AUDITING COMMITTEE

(PIIAC)

 
Monitoring Subcommittee Members & Staff
Robert Ueland, Chair
Marina Anttila
Robert Wells
Marge Wagner
Lisa Botsko, PIIAC Staff
 
Approved by PIIAC Citizen Advisors
April 10, 1997
 
Submitted to City Council
April 23, 1997
 
CITIZEN ADVISORS
1997 FIRST 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."
 
FOLLOW UP TO PREVIOUS QUARTERLY REPORT
The Chief’s Response to our Third Quarter 1996 Monitoring Report is appended to this report as Attachment A. We would like to clarify our recommendation #2 as it seems to have been misunderstood.
We have no disagreement about managers conducting inquiries. What we are recommending is that complainants be routinely informed of the second-tier review process, which is not the same as having IAD actually do the work.
We have reviewed precinct-level investigations that were done well; we have seen many instances when supervisors make responsible, informed decisions. But complainants may not possess the same level of confidence, and our recommendation is designed to accommodate their point of view. We will clarify our previous recommendation, and hope the Chief will view it in the "win-win" spirit it is intended.
Citizens who file complaints feel aggrieved when they contact PPB. Many who follow through with a complaint do so precisely because IAD exists as a separate unit, presumably staffed by people who know how to investigate complaints and who are not closely involved with the subject officer. So far, so good. But, several months later, the complainant receives a letter of disposition directly from the subject officer’s supervisor. If the results are disappointing, complainants sometimes wonder whether IAD had any role in this at all.
On several occasions these complainants subsequently contacted PIIAC staff concerned about how their complaint was handled. They were suspicious of the supervisors’ impartiality and thought such an investigation was too "cozy." They assumed that the
finding was arbitrarily and capriciously made in a vacuum, with no accountability to anyone else in the Bureau.
These letters, as currently written, can contribute to these assumptions and may undermine confidence in the Bureau’s accountability. A simple modification to the wording of these letters -- in acknowledgment of the citizen’s point of view -- can go a long way to prevent these impressions.
Our second concern is this: on at least one occasion that we know of, a division captain sent a disposition letter to the complainant before the final IAD review. During second- and third-tier review, procedural deficiences were identified as a result of the complaint. The division captain sent a revised letter to the complainant. The complainant did not appreciate the significance of this outcome as much as he may have (he contacted PIIAC and voiced his opinion) had he not received the first letter.
We appreciate the Chief’s commitment to correcting errors and ensuring proper training for those involved in complaint investigation. But we do not believe the Bureau gains by sending out a disposition letter before all review is complete if that letter later proves to be in error. We prefer to see PPB correct its own errors whenever possible, and send out a final product that everyone can support.
Therefore, our revised recommendation is twofold:
1. Letters of disposition are mailed to complainants after all review is complete and the findings approved, or at the very least, inform complainants that the findings are subject to whatever additional review remains;
2. All letters of disposition authored by non-IAD staff contain the following sentence or something similar: "The investigation and finding have been thoroughly reviewed by [name of IAD commander] of the Internal Affairs Division."
The Chief’s response to our Fourth Quarter 1996 Monitoring Report is not due until May 5, 1997.
 
IAD / PIIAC ACTIVITY
I. Cases Appealed / Monitored
During the first quarter 1997, PIIAC advisors processed five new appeals. The appeals and actions taken are as follow:
 
#97-01: Advisors voted to return this case to IAD for additional investigation, which is pending. It involved the complainant having been taken into temporary custody during a traffic stop until officers could establish his identity. He also objected to the officers’ communication with him and a friend who happened by at the time. Advisors determined that PPB did not sufficiently explore the communication allegations.
 
#97-02: The complaint was initially declined by IAD; the declination was affirmed by the citizen advisors. Following an appeal to PIIAC (City Council), commissioners voted unanimously to reject the appeal.
 
The complaint involved actions taken by officers during a welfare check on the appellant’s wife. Advisors concluded that IAD sufficiently established that officers conformed to policy and procedure. Advisors did make a procedural recommendation: that in situations involving possible adversaries, officers provide business cards or other identification to both parties -- not just one -- to avoid the appearance of taking sides. (Part of the complaint was that as officers were leaving, one handed his business card to the wife instead of the appellant.)
 
#97-03: Advisors affirmed IAD’s declination of this complaint. The appellant did not appeal to PIIAC (City Council). The complaint was that an officer pointed his gun at him during a traffic stop and took him into temporary custody until his identity could be established. IAD sufficiently established that the traffic stop was elevated to a high-risk stop when the appellant seemed to be trying to elude the officer.
 
#97-04: Advisors affirmed IAD’s declination of this complaint. The appellant, currently serving a jail sentence, believed a Drug and Vice officer deliberately misrepresented the amount of marijuana seized from his home. The appellant, who pled guilty to several drug-related charges, believed the officer’s actions led to a more severe sentence. IAD provided advisors with an internal memorandum indicating that the officer had indeed erred by writing "lbs" instead of "ozs," but that the error was made known to the court and had not affected the sentence. Advisors were satisfied that the discrepancy was resolved and do not believe the IAD/PIIAC process should become a forum for post-conviction relief. An appeal to PIIAC (City Council) is pending.
 
#97-05: IAD initially declined the complaint, but voluntarily withdrew this case for investigation after receiving a preliminary audit report that identified some deficiencies. The basic allegation was that an officer failed to take a report of an assault against the complainant. Advisors did not vote on this case; additional review is pending.
 
 
We monitored an additional 35 IAD investigations closed out during the first quarter. 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 2
Use of Force 22
Conduct 11
Disparate Treatment 5
Communication 13
Performance 6
Procedure 17
 
 
The findings reflected the following:
 
 
Unfounded 10
Exonerated 13
Insufficient Evidence 18
Sustained 20
Suspended 0
Declined 4
 
 
Use of Force Cases Audited:
The 22 Use of Force cases reflected the following findings:
Unfounded 3
Exonerated 11
Insufficient Evidence 6
Sustained 2
Declined 4
 
Use of Force cases that were sustained involved the following actions by officers:
· Use of carotid hold. A combative suspect gained possession of an officer’s pepper spray; a carotid (choke) hold was used to subdue him which caused a brief loss of consciousness. Although a carotid hold is considered deadly force, this case alerted PPB that it was not described as such in a revised Use of Force General Order (G.O.). Normally, deadly force cases are handled by the District Attorney’s office and evidence presented to a Grand Jury but because of the G.O.’s wording, it was investigated in Internal Affairs. PPB immediately corrected their G.O. to characterize the carotid hold as deadly force.
 
· Another complaint was sustained for procedure and use of force after an officer effected an unconstitutional arrest. The use of force finding was made because the officer grabbed ahold of the subject even though he had no legal reason to detain him, and subsequently took him into custody for "disobeying a peace officer."
 
 
Sustained complaints audited:
Precinct/division breakdown is as follows:
Southeast (Heisler) 6
Central (May) 5
Northeast (Orr) 2
East (Paresi) 3
North (Rictor) 2
 
Tactical Division (Foxworth) 1
Reserves (Jones) 1
 
In addition to the sustained use of force complaints described in the previous section, complaints were sustained against officers for the following reasons:
 
· Improper/unauthorized used of the Law Enforcement Data System (LEDS) - 2 complaints;
 
· Failure to follow proper procedure (documentation of handcuffing - 2 complaints;
vehicle inventory pursuant to tow; issuance of property receipt; taking robbery report; handling of evidence; providing identification);
 
· Failure to report sick leave;
 
· Unconstitutional detention/arrest - 2 complaints;
 
· Improper driving (as observed and reported by a citizen);
 
· Personal conduct unrelated to a specific police action (2 complaints);
 
· Courtesy issues (2 complaints);
 
We would like to comment on some of these issues.
 
· Improper/Unauthorized Use of LEDS:
 
Perhaps coincidentally, we reviewed three sustained complaints this past quarter that involved improper/unauthorized use of LEDS. We understand that additional complaints with similar issues are currently under investigation. This does not necessarily constitute a "trend" or "pattern" and we have no recommendation at this time, but we have identified this as an issue for future monitoring.
LEDS is a statewide database that provides criminal history and motor vehicle information on individuals. The information is available only to law enforcement agencies for legitimate criminal justice purposes. All agencies using this database enter into a formal agreement that quite specifically describes the conditions for use and defines "criminal justice purposes." Misuse of the database can result in the loss of user privileges. Officers also sign non-disclosure agreements.
One case involved a reserve officer running law enforcement checks before receiving the appropriate training. The investigation revealed that a training backlog existed; we understand this is being corrected. The second complaint that was sustained involved an officer obtaining someone’s home address which he then provided to a personal friend. Because the friend had indicated the need to conduct legal business with the other party, the officer told IAD that he considered this usage to fall under the "criminal justice" parameters. In a third case we examined, the LEDS usage was secondary to the main complaint involving off-duty conduct. The complaint was sustained, but because the category of "Procedure" was not applied, we do not know if the sustained finding included the LEDS usage issue. The subject officer also testified that his LEDS usage was for legitimate criminal justice purposes; however, the person he checked was responsible for the initiation of this complaint regarding the officer’s off-duty conduct. The investigative file contained a memorandum from the PPB Records supervisor in which she said she thought a LEDS violation had occurred.
The common denominator in the latter two cases was that the officers very broadly interpreted "criminal justice purposes."
 
· Officer Identification:
We recommend PPB further clarify the Identification General Order or assist PPB command staff reach agreement in its interpretation and enforcement. Failure to provide identification was a secondary allegation in three complaints audited this past quarter, as well as in an appealed case that was reviewed but not included in this report’s other statistics. We identified this as an issue in our 2nd/3rd Quarter 1995 Monitoring Report; we have continued to see this issue come up in complaints. We believe that a number of these complaints are preventable.
PPB General Order 312.50, Identification, states that ". . . All members will identify themselves by name and BPST number upon request. Upon demand, identification will be presented in writing or through the presentation of a Bureau-issued business card."
As straightforward as this instruction seems, it is apparently open to interpretation. Some officers, upon being asked for their name, have allegedly told citizens "it will be on the report." The citizen must then order and pay for a report from PPB’s Records Division; these reports sometimes take weeks to become available. Other officers may tell a citizen "my name is on the ticket." Directing a citizen’s attention to a legibly-written name is one thing; expecting a citizen to decipher a scrawl is quite another. In other instances, officers allegedly pointed to their name tag which reflects only a last name, or they provide a last name only. Even though these officers may consider themselves in compliance with the G.O., a citizen is often left feeling even more aggrieved.
We have also seen a fair number of complaints the past few years, alleging that officers refused to provide a badge number. Portland police officers do not have badge numbers, but they do have numbers issued by the Bureau of Police Standards and Training (BPST). Does the G.O.’s wording require a citizen to specify they want a BPST number before it is forthcoming? Apparently some officers would rather provide tedious explanations -- to already irate citizens -- about how they don’t have badge numbers.
In one case we audited this past quarter, a precinct commander sustained a complaint against an officer for not providing his BPST number when asked for a badge number. In a memo explaining the finding, the commander writes: "Officer [ ] admits that he did not identify himself as required, apparently playing a word game by stating that his badge did not have a number. Every officer knows that the civilian parlance for ‘badge number’ refers to their BPST number, and knows that they are required to give their name and BPST number upon request." This was a secondary issue in a different case sent to PIIAC on appeal. That officer, in his interview, said that he attempted to explain to an already irate citizen that he has no badge number. He did not provide his BPST number. That precinct commander rendered a finding of "unfounded," which means that the allegation has no merit.
Such widely varying interpretations of a General Order create an unfair disparity. One officer is found in violation and subsequently disciplined; another officer does the identical thing and is excused.
II Timeliness
Time taken from receipt of complaint to when the case was closed out ranged from one month to nineteen months, with an average of nearly eight months. The average has increased over previous quarters, although it may be artificially high this quarter given that approximately 57% of cases audited were sustained, an unusually high percentage.
Complaints that are sustained typically take longer because they often require more intensive investigations, and must go through a chain of command during the review process which certainly adds to the timelines. We should also point out that this average is probably higher than the average length of time taken for all complaint investigations, as we routinely audit only the more serious cases.
Twenty of the cases we monitored were opened in or after June 1996, when the current IAD commander was appointed. (Those cases do include the declinations.) The average length of time those complaints were processed was nearly five months. We commend Capt. Jensen and IAD for continuing to improve overall timeliness, as well as timeliness for re-investigation of cases returned by PIIAC. We also note that IAD tracks cases much better than they did several years ago.
In our previous quarterly monitoring report, we described an investigation that was unreasonably delayed. This quarter, we audited several more cases that suffered from the same problems; these delays could not be justified. In only one file did we see any kind of memo requesting that a delayed investigation be concluded. Unjustifiable delays are not fair to either complainant or officer. In several cases, the complainant and/or potential witnesses ultimately moved and could not be located (including one case in which the complaint was sustained). Of course, some complainants and witnesses live transient lifestyles anyway. Some have weak complaints to begin with and do not follow up. But others might simply lose faith in the process, possibly choosing to pursue a civil action instead. PPB may lose out on valuable evidence and testimony; the Bureau and the officer may have to "settle" for findings of "Insufficient Evidence." We note that nearly 50% of cases monitored contained an "Insufficient Evidence" finding. If the complaint is legitimate, the Bureau and complainant never find out for certain. If the officer was correct, he or she must live with a questionable finding on the record. Officers do not appreciate that.
The case that took nineteen months to resolve involved excessive force allegations. "Insufficient Evidence" was one of the findings. The complaint was received in June 1995. After the investigator conducted his interviews, he left IAD and the case sat dormant for six months. In summer 1996, the replacement investigator had to familiarize himself with the case enough to complete the final, general summary. He also determined that the previous investigator had not obtained medical records. He unsuccessfully tried to obtain medical records at this late date. (Had this step been taken at the outset, the complainant might have been more cooperative. We do note that IAD has implemented procedures to secure medical releases when the complaint is taken.) No further work was done on the case, yet it still remained open until January 1997. No explanatory notes were in the file as required.
Three other investigations took fourteen months apiece to complete; one took thirteen months, two took twelve months apiece, two took eleven months apiece, and the distribution is fairly even from then on. Several of these lengthier cases were unnecessarily delayed when a departing investigator left simple loose ends.
We are requesting an accounting from IAD of cases that are formally suspended or over 6 months old.
On a more positive note, we have seen improvement in precinct / division commanders’ turnaround time. When they receive completed investigations, they are generally returning cases with recommended findings (or at least a request for more investigation) before the prescribed deadlines. We noted only one exception -- a case that took five months from the date the completed investigation was received to the date findings were recommended. That commander provided no explanation or request for extension. Review levels are scheduled in a timely fashion.
 
III. Quality
Nearly all investigations audited met our standards of quality. We continue to see examples of both superior and deficient investigative quality. We have listened to interviews conducted in both IAD and precincts/divisions which are exemplary and reflect a conscientious amount of preparation and case familiarity.
We are also seeing some precinct/division level investigations that do not conform to IAD’s investigative standards. IAD has written guidelines available to all investigators but we saw a couple of cases that were missing basic items such as interview summaries. Also, investigators must be diligent about reporting observations separately from the body of testimony -- such as in an "Investigator’s Note."
In January 1997, Capt. Jensen distributed a memo to all precincts and divisions offering additional investigative training. He reports he has had little response. Although we are aware of the PPB’s limited staff time and resources, we strongly encourage precinct/division commanders to accept additional complaints investigation training. Investment in additional training time could ultimately pay for itself by improving efficiency and reducing timeliness problems when cases must be reworked. Of the cases audited this past quarter, PPB supervisors returned eight so that investigative defiencies could be corrected. Only one of these cases was easily repaired (by obtaining the officer’s duty notebook entry); the remaining cases required re-interviews of officers or even multiple witnesses. We saw two common reasons why re-interviews were requested:
 
· The initial interview with a subject officer failed to address all complaint allegations. Officer interviews can be burdensome to arrange: schedules have to be coordinated between the investigator, the officer and any representative that officer chooses to have. To have to do re-interviews because the investigator had not adequately prepared the first time only wastes time.
· Initial interviews lacked thoroughness; the investigator failed to develop details, did not closely question the interviewee(s), and in some cases, allowed too many discrepancies to stand.
 
We are encouraged that supervisors insist on thoroughness and accuracy. Unfortunately, lengthy delays compromise the value of additional work.
 
IV. Declination of Use of Force Complaints
In our last monitoring report, we discussed concerns about declinations of use-of-force complaints. Because some of the complaints tend more toward "procedural" issues, we agreed to have Capt. Jensen review proposed declinations of such complaints through the end of March 1997, after which time we would work together to develop mutually acceptable criteria.
Capt. Jensen discussed five cases with us; we did not completely agree about one or two of them. Our next step will be to schedule a meeting and begin drafting criteria.
 
 
MEDIATION
 
The ten pilot cases have been completed. The Neighborhood Mediation Center is preparing an evaluation. The draft will be distributed to citizen advisors for feedback, and a final version will be presented to advisors at the May meeting.
 
IAD STATISTICS
 
IAD’s 1996 statistics are appended to this report as Attachment C.

ATTACHMENT A
Chief’s Response to 1996 Third Quarter Monitoring Report
 
January 29, 1997
 
To: Mayor Vera Katz
 
Subject: Response to 1996 Third Quarter Monitoring Report (PIIAC)
 
The 3rd Quarter report offered two recommendations and I will respond to those.
 
RECOMMENDATION ONE referred to timeliness. "We recommend that PPB address this topic with commanders, and that IAD develop a reminder system for tracking when adjudication deadlines have come and gone."
 
I will continue to stress the need for improved timeliness and there is a reminder system in place. At this point I am concered that Measure 47 budge reductions may impact these efforts as IAD staff and overall Bureau command/supervisory staff may be reduced. But, regardless, we will seek to improve our timeliness.
 
RECOMMENDATION TWO referred to the authorship and review of disposition letters. "We recommend that all investigations or inquiries handled by non-IAD staff be reviewed by IAD before a final disposition letter be mailed to a complainant. The letter should inform the complainant that IAD has reviewed the case and concurs with the finding."
 
Upon review of this recommendation and a clearer understanding of the request, I am unable to support this recommendation. The managers and commanders who conduct these inquiries and prepare the letters have my authorization and trust to do so. If there is something improper about their work then we will train them as to how to do the job correctly. To simply have IAD do their work is not acceptable. Hopefully the advisors will clarify the errors, let us correct the errors and keep the same process. By having managers and commanders do the inquiry process, we give immediate feedback to the officers and actually avoid repeat behavior.
 
This report was due on January 13, 1997 and is late. Timeliness is a never ending challenge.
 
Charles A. Moose, Ph.D.
Chief of Police
 
CAM/cht
 
 

ATTACHMENT B
 
IAD COMPLAINT CATEGORIES
 
 
1. Property: Allegation that money, property, evidence and other valued items have been taken and not properly accounted for, receipted, or placed in the Property Room.
 
2. Use of Force: Allegation of excessive or inappropriate physical or deadly physical force (Refer to G.O. 314.00).
 
3. Conduct: Allegations of misconduct other than those more specifically defined by another category, which tend to bring reproach or discredit upon the Bureau or City of Portland.
 
4. Disparate Treatment: Allegations of treatment to an individual that is different from the treatment of another because of
 
(a) Race.
 
(b) Other: sex, age, national origin, sexual orientation, economic status, political or religious beliefs, appearance, handicap, etc. . .
 
5. Communication: Allegations relating to attitude, rude conduct, or verbally abusive conduct other than those addressed in the disparate treatment category.
 
6. Performance: Allegations of work performance which fails to meet or conform with Bureau standards or requirements of an administrative nature such as lateness, misuse of sick time, etc.
 
7. Procedure: Allegations of conduct which violates a General Order, Special Order, or order of a superior officer and which are not more specifically addressed in sections (1) - (6).
FINDING CATEGORIES
 
 
1. Unfounded: Claim is false. Based on the facts of the investigation, there is no basis to the allegation.
 
2. Exonerated: Actions of the officer were within the guidelines of Bureau policy and procedure.
 
3. Insufficient Evidence: There was not enough evidence to prove or disprove the allegation(s).
 
4. Sustained: Officer found to be in violation of Bureau policy or procedure.
 
5. Declined: Police Bureau declines to conduct full investigation.
 
6. Suspended: Investigation is suspended, usually because complainant fails to provide key information.
 
 

ATTACHMENT C
 
INTERNAL AFFAIRS DIVISION STATISTICS
January 1, through December 31, 1996
 
TOTAL COMPLAINTS
As of 12/31/95
As of 12/31/96
Closed
497
78.39%
339
67.00%
Open
137
21.61%
167
33.00%
TOTAL:
634
506
COMPLAINANTS
Black
107
16.67%
108
20.81%
White
460
71.65%
350
67.44%
Asian
6
.93%
7
1.35%
Hispanic
17
2.65%
19
3.66%
Indian
8
1.25%
4
.77%
Unknown
23
3.58%
17
3.27%
PPB
21
3.27%
14
2.70%
TOTAL:
642
519
BUREAU MEMBERS
Black
6
1.60%
10
4.20%
White
349
93.07%
211
88.66%
Asian
14
3.73%
5
2.10%
Hispanic
5
1.33%
10
4.20%
Indian
1
.27%
2
.84%
TOTAL:
375
238
BUREAU ASSIGNMENT
Central Precinct
121
17.90%
109
21.42%
East Precinct
97
14.35%
71
13.95%
Southeast Precinct
119
17.60%
74
14.54%
North Precinct
59
8.73%
47
9.23%
Northeast Precinct
115
17.01%
115
22.59%
Other
165
24.41%
93
18.27%
TOTAL:
676
509
 
 
1995
1996
TYPES OF ALLEGATIONS (PENDING)
Missing Property
15
1.84%
18
2.48%
Use of Force
113
13.90%
99
13.62%
Conduct
118
14.51%
92
12.65%
Disparate Treatment
9
1.11%
6
.83%
Communication
120
14.76%
143
19.67%
Performance
39
4.80%
7
.96 %
Procedure
399
49.08%
362
49.79%
TOTALS:
813
727
DISPOSITIONS OF CLOSED COMPLAINTS (As of 12/31/96 there are 167 cases open and pending a disposition)
Unfounded
68
10.26%
46
9.31%
Exonerated
99
14.93%
68
13.77%
Insufficient Evidence
49
7.39%
54
10.93%
Sustained
39
5.88%
27
5.47%
Declined
100
15.08%
116
23.48%
Information
237
35.75%
132
26.72%
Miscellaneous
27
4.07%
1
.20%
Mediation
0
19
3.85%
Suspended
44
6.64%
31
6.27%
TOTALS:
663
494
 
 
TOTALS: Category totals may include multiple complainants, allegations and/or dispositions.
BUREAU MEMBERS: Totals based only on completed investigations where the disposition may be entered on a member's complaint history and not the total number of Bureau Members involved.