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Monday, October 29, 2012

Deal Over Cops' Use of Force Already Stirring Advocates' Concerns

Posted by Denis C. Theriault on Mon, Oct 29, 2012 at 12:14 PM

This Thursday, Portland City Council is scheduled to vote on a sweeping package of police and mental health reforms agreed to as part of a settlement with the federal Department of Justice over findings last month that the Portland Police Bureau violated the constitutional rights of Portlanders experiencing mental illness by using excessive force.

But this weekend, two groups who have spent decades working on this same issue—Portland Copwatch and the Mental Health Association of Portland (MHAP)—sent out stern critiques of the settlement to city commissioners and federal officials lamenting a lost opportunity for imposing even greater citizen accountability, stricter limits on force, and a clear mechanism for firing cops guilty of misconduct.

"It is discouraging that despite efforts to include the community in this process, the agreement explicitly excludes anyone but the DOJ or the City from having standing to challenge the enforcement in court," writes Copwatch, noting that "many of the provisions do not go far enough."

For instance, in what it's calling an initial analysis, Copwatch wondered why Police Review Board hearings—which the chief relies on for discipline findings—remain closed to the public (including the person making the misconduct complaint). The group also complains that the feds didn't insist on more changes to our accountability system, despite calling it "byzantine" when releasing their findings last month

In one case, the feds endorsed a troubling gray area involving cases of deadly force: The city, currently, does not allow surviving victims or the survivors of dead victims to appeal review board findings to the city panel, the Citizen Review Committee, charged with handling appeals of all non-deadly-force case.

MHAP was a bit more stinging with its comments—telling the feds "because our past communications with you have been ignored, we are sending copies of this email to members of the Portland City Council and to the media."

MHAP pressed the idea that something more must be done to oust cops found out of policy in force cases.

"The city continues to employ officers who have mercilessly and thoughtlessly killed our friends without consequence. The settlement introduces no mechanism to separate those individuals from the police bureau, in order to prevent future threat to us or hold them duly accountable. No amount of policy, training, or wringing of hands can amend these crimes, and nothing has been done to protect us from the officers involved. Ignoring this situation evidences an unexplainable disregard for justice; as such, it undermines the entire agreement."

The group then made a point about the treatment component laid out in the settlement, acknowledging that it lies at the center of the deal, but accusing the feds and city of drawing up answers "mainly responsive to the convenience of police, not the expressed needs of our community." Along those lines, MHAP also says the process-heavy nomination rules for a new 15-member oversight committee aren't exactly welcoming for those with direct experience of battling through a crisis and interacting with cops.

"Its elaborate structure makes it wholly ill-considered if you want participation by persons at the center of the settlement," says MHAP. "It is equivalent to giving a non-Braille text of Blackwell’s Dictionary of Law to a blind student: well-meaning, thoughtless, and cruel. You should have engaged capable persons with mental illness in your planning; they are plentiful.

The Copwatch statement:

Our organization, which worked diligently with other organizations in the community to give feedback on the DOJ's September report, has many concerns about the agreement being put forward for adoption by Council on Thursday, and then for submission to the court.

We want to convey these initial concerns while we formulate a deeper analysis of the proposed agreement.

First, it is of great concern that all previous communications are not to be considered when interpreting this document (paragraph 3). There are many recommendations made by the Dept. of Justice that are not reflected in the final document. In fact, we would like to see any and all correspondence from the City Attorney's office and the Portland Police Association to the DOJ, since their fingerprints appear to be all over the weakest parts of the agreement.

Second, it is discouraging that despite efforts to include the community in this process, the agreement explicitly excludes anyone but the DOJ or the City from having standing to challenge the enforcement in court (paragraph 5).

Third, and we will go into more detail on this in our later analysis, is that many of the provisions do not go far enough, and the agreement is slated to last for five years (paragraph 175). We hope this does not mean that the DOJ expects the people of Portland to suffer through inadequate use of force training and policies, and our "byzantine" accountability system that is de facto endorsed in this agreement, for that long.

Fourth, we want to immediately call attention to provisions around the accountability system that are not acceptable, are actually harmful to the development of trust, and appear to be results of compromises made behind closed doors despite community outcry:

a) The Police Review Board will remain closed not just to the public, but also to the person against whom the force was used; the only changes proposed (paragraphs 130-131) do not remedy this issue that DOJ noted in its report (on page 33).

b) Rather than create a solution for when Citizen Review Committee (CRC)
asks for more investigation and the Bureau and the Independent Police Review Division refuse (DOJ report recommendation #10), the report restricts CRC to making one request for more investigation (and is ambiguous whether than means only one aspect of the complaint can be reinvestigated or not— paragraph 135).

c) Hidden in the definitions section, the DOJ is explicitly endorsing the current standard of review used by the CRC, the "reasonable person" standard (paragraph 61) , when outside experts (the Luna-Firebaugh report), repeated community input (Police Oversight Stakeholder report, AMA Coalition, etc) and the CRC itself has asked for that standard to be changed.

d) The agreement explicitly prohibits appeals to the CRC by people who survive police shootings or the survivors of a death in custody about the findings regarding whether an officer committed misconduct (paragraph 43— also in the definitions section, a poor place to be setting policy).

At the very least, the report should be stripped of these last three specifics and address the first two before locking in the current system or its successor (paragraph 4) for five years.

The MHAP statement:

The settlement offer distributed on October 27 may resolve differences between the city of Portland and the federal government, but from our point of view — that of persons with mental illness, those actually subject to the “pattern and practice” identified in your original report, those most likely to be harmed by police officers — there is little in the document which provides immediate reassurance.

Foremost, the city continues to employ officers who have mercilessly and thoughtlessly killed our friends without consequence. The settlement introduces no mechanism to separate those individuals from the police bureau, in order to prevent future threat to us or hold them duly accountable. No amount of policy, training, or wringing of hands can amend these crimes, and nothing has been done to protect us from the officers involved. Ignoring this situation evidences an unexplainable disregard for justice; as such, it undermines the entire agreement.

Second, as you noted in your findings, persons with acute mental illness, including psychosis, mania and even depression, often do not respond as expected to authoritative commands. Without worthwhile treatment resources, acute illness is a predictable, routinely experienced complication of many illnesses. For us, inability to respond to police immediately or typically can provoke an escalation in tactics that too often results in injury or death. While the settlement agreement does address treatment deficiencies, it is mainly responsive to the convenience of police, not the expressed needs of our community.

Third, just as persons with acute mental illness may be unable to respond to police commands, many of us have an equal inability to participate in normal political or bureaucratic processes. The settlement agreement introduces the Community Oversight Advisory Board, but its elaborate structure makes it wholly ill-considered if you want participation by persons at the center of the settlement. It is equivalent to giving a non-Braille text of Blackwell’s Dictionary of Law to a blind student: well-meaning, thoughtless, and cruel. You should have engaged capable persons with mental illness in your planning; they are plentiful.

In addition to the three points included in this email, the Mental Health Association of Portland supports the initial comments about the settlement made by Portland Copwatch.

We hope you will continue to investigate police brutality against persons with mental illness, because it does not just happen here, it is everywhere — and without real change, it will continue to deprive us of our lives, our rights, and our pursuit of happiness, unabated into the future.

Please note: Because our past communications with you have been ignored, we are sending copies of this email to members of the Portland City Council and to the media.

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