Someone to watch over them

Tom Kane’s plan for civilian review of the police reaches its final stages. It just might work.

By Sam Pfeifle

For Portland City Councilor Tom Kane, the end is in sight: January 1 marks the end of his career as city councilor, and possibly the end of his political career in total. And many in Portland will be sad to see him go. But there is another end in sight, the end of Councilor Kane’s three-year campaign for civilian review of police activities.

An ordinance that would create a six-member civilian review board with the power to review the Portland Police Department’s internal affairs investigations had its first reading at Monday, October 1’s city council meeting. After going before the Public Safety Committee October 2, and meeting with a considerable amount of opposition from police unions, it was decided a workshop was needed October 22. Unless further complications arise, the ordinance will come before the council for vote November 5, and councilor Kane’s three-year mission may finally come to fruition. Questions abound, however, as to whether that would be a good thing for the city of Portland.

It would seem initially to be a no-brainer. It makes perfect sense to establish a board that reviews police activities. The cops are a powerful entity that basically polices itself through

its internal affairs department. If internal affairs are not themselves watched over, the possibility exists for cronyism, conflict of interest, and plain-old corruption. No one is accusing the Portland Police Department of such things (at least not openly, vocally, or coherently), but it’s easy to see that the possibility exists.

As Kane succinctly summarizes, “What I want to know, and I think what the public wants to know, is: Are these cases being reviewed and investigated properly?” Maybe they are, maybe they’re not, but, as the internal affairs process is almost completely confidential, it’s difficult to say for sure.

One of the major road blocks in councilor Kane’s drive toward civilian review was the Maine Labor Relations Board, as they said that civilian review would have to be a point of negotiations between the city and the police unions. However, it was the Maine Labor Relations Board that put councilor Kane on track for his current proposal.

Civilian review, they said, would have to be a point of negotiations if the newly created board had the power to investigate and make recommendations on specific cases, as that could possibly affect discipline doled out to individual officers. However, were the board to merely review the internal affairs process in general — noting trends of fairness, timeliness, race sensitivity, etc. — then that would be something the city could implement outside of the negotiations process.

And so that’s what’s being proposed: a board that would report, at least annually, to the chief of police, city manager, and city council with a “determination of whether [internal affairs investigations] were thorough, objective, fair, and timely,” says Kane. “They’d give a statistical analysis of all the cases reviewed, including an analysis of trends and patterns of complaints or results of investigations. They would then make any recommendations and proposals for improvements and modifications of the internal affairs process, policies, and training.”

The first report would come in January, 2003, with a public hearing during which citizens could propose comments and complaints about the police review process.

As Kane says, “The whole goal here is to enhance public confidence in this process.”

Bob Martin, President of the Police Benevolence Society, the union that represents the rank and file police officers, isn’t so sure.

“My response is that I want it to work,” says Martin. “I don’t want to have to modify it two years from now. There’s a lot of confusion as to what it does.” Specifically, Martin thinks the public will be dissatisfied with the auditing process Kane is proposing.

“Their role is to look at timeliness, objectivity, and fairness,” says Martin. “I don’t think the average civilian is going to be happy with that. I think they’re coming to [the board] to disagree with something in a specific case. When a person goes to that committee they’re going to be disappointed.”

Martin is also concerned with the fact that there is no budget for the board’s operation. He notes that virtually every other civilian review board across the country has some sort of budget, with professional staff people supporting the issuance of reports. If this board is run like any other city board with appointed members (the Town Planning Board, Public Art Committee, and Zoning Board of Appeals), Martin says, there won’t be any money for training. Further, there’ll be no resources for generating the report, or incentive for the board to put in the long hours that will be necessary for analyzing the large amount of data involved in internal affairs investigations: witness statements, affidavits from officers and complainants, crime-scene data.

Councilor Kane dismisses these arguments as disingenuous, coming from a union that “said their concerns before would be that individual officers would be affected. None of that occurs now. Now they’re objecting because they think it’s not what citizens want? They didn’t want to give them what the citizens wanted.”

As for the budget issue, Kane notes that Portland isn’t exactly swimming in cash right now, and that “most of our boards function quite well with in-house expertise, bringing in support as it’s needed. I think between our in-house human resources department, corporation council for legal issues, and resources within the police department there is plenty of support. There are different national associations within the state, the attorney general’s office. There’s a lot of support out there, but I don’t yet know specifically what’s needed. It’s like our planning board. I see the volume of work that they handle. All sorts of technical issues come up and we always seem to find support for [the planning board].”

Kane feels that the police have been successful in shooting down plans for a more stringent civilian review, now they’re calling for more stringent civilian review in order to shoot down the lesser version. They can’t have it both ways, he says.

Despite the motivations for objections coming from Martin and the police unions, they may have some valid points. For instance, a perusal of national civilian review board models and information provided by the National Association for Civilian Oversight of Law Enforcement (NACOR), shows that the civilian review board proposed by councilor Kane is virtually the weakest possible model, and would probably be the weakest of the 61 civilian boards currently operating around the country (you’d think that would engender Martin and the unions to the plan, but we may have to actually allow that the police have the public’s interest at heart).

And Martin is right, almost all of the other boards have budgets, many to support the training NACOR advocates: at least 35 hours for every board member. And almost all of them provide for the review of individual cases.

San Francisco has gone so far as to eliminate the internal affairs department at their police department and supplant it with a civilian review board with ultimate power of police officer discipline, even the power to subpoena witnesses during the course of their investigations.

Portland’s board would only be charged with identifying disturbing trends. Their conclusions would only lead to recommendations, and the police department would be under no obligation to change anything they do on the basis of what the board has to say.

Could Martin be right that a public won’t accept a board without any teeth? Well, it depends on how the Portland public approaches the idea of civilian review, and what they hope to get out of it.

When the civilian review board movement got started in the mid-’50s, it was largely a product of the civil rights movement. The City of Philadelphia acted first, in 1958, with a board of five to eight lawyers, African-American ministers, sociologists, and criminologists who decide if an adversarial hearing is warranted when a complaint is made. New York City, Kansas City, and New Orleans followed with their own takes on civilian review by 1972. Noticing a trend? These are big cities, with large police forces, and a large number of complaints registered against those forces. They were created in atmospheres of great distrust, in the wake of police shootings, combustible race relations, and documented police error.

Then there is the case of Berkeley, California, whose board came next in 1973. Hey, you might say, they’re only about twice the size of our little burb here. Yes, but their board was federally mandated after there were a few run-ins between their police department and a group you might have heard of: the Black Panthers. There was an obvious necessity for a group to make sure the police didn’t go overboard in their crackdowns on Panther activities.

It’s possible that Portland, with a low crime rate (zero murders in 2000) and a generally amicable relationship with the police department (other than the immigrant community and folks under, say, 30, who like having a good time) might not have a need for the more strenuous, yet more expensive, review process favored by these larger cities.

Barbara Attard, the Director of the Berkeley Police Review Commission, having previously worked with San Francisco’s police review board, isn’t particularly impressed with the Portland plan.

“That’s kind of the weakest system that you can have,” she says. “I really think it’s important to have independent investigations. In this city, we have Internal Affairs (IA) and the Police Review Commission (PRC). The complainants can actually get letters from IA, so I know that the investigation from IA can end up looking very different from ours. Very often, witnesses won’t talk to the police where they will come forward to us. They’re less intimidated by civilian investigators. So, if there’s any chance for pushing for more power they should.

“But, it depends what the community is asking for, if they’re asking for a strong civilian oversight, they’re not getting it.”

That’s a good question. What is the community asking for?

“There seems to be a disturbing trend of complaints in dealing with the minority and immigrant population that we find kind of disturbing,” says Winston McGill, vice-President of the Maine chapter of the NAACP. “[Civilian Review] might point out some inadequacies in the training the police receive in dealing with members of the immigrant community. I’m not so sure [the police] have the tools to effectively communicate.”

However, he’s happy to let Kane lead the charge for civilian review’s establishment, and he even agrees with the form it may take. “I have a lot of faith in the internal affairs process itself,” says McGill. “And I think they are pretty objective, so I don’t feel that a civilian review board would necessarily be needed to usurp what internal affairs already does.

“There’s definitely the impression with the public, not just the minority community, of a separation between the police and the public. And the bottom line is that the police department are the servants of the public. And if there’s this under-siege mentality, or a them-and-us mentality, then maybe this is what’s needed to break this down to the benefit of everybody. Not just the public but the police also, because they’re getting hit with lawsuits left and right. And that’s definitely not a positive thing.”

Sally Sutton, Executive Director of the MCLU, isn’t quite so sure about the form the review board looks to be taking. “We certainly think it’s probably a good first step for Portland to take this on,” she says. “But I think we should pay attention to what actually will this group be delivering.”

Getting civilian review of the police has been a main goal of the ACLU for quite some time, but the MCLU hasn’t been particularly active in Kane’s push. In general, the ACLU supports individual case review, even subpoena power. However, Sutton wouldn’t go so far as to call for this in Portland.

“[The proposed board] certainly goes toward establishing a vehicle for holding the police more accountable,” she says. “If there’s going to be these periodic reports, that will keep the issue before the council. It certainly should help with the public’s perception of accountability. But I think all of that, the whole process, should probably be looked at after a year or so. The question is: Will it accomplish what they hope?”

That remains to be seen, of course. For the last three years it’s been Councilor Kane asking, working, campaigning for this, and he feels his model fits Portland nicely.

“This process will meet the need of what I’m trying to accomplish,” he says, “which is to assure the citizens of Portland that someone other than the police is looking at these cases. Even though it’s after the fact, I think there’s as much reason to do this as to look at individual cases. If they look at these 35 cases, say, and if they say that 15 of these cases were incomplete, some showed a bias, some weren’t timely, then the board can make recommendations to fix the problems. That’s my goal, and I think it would meet citizens needs. It will change the process. If you’re doing each case you might get bogged down in the individual complaints and not solve the larger problems. I think the audit process serves the goal even better.”

That may be creative rationalization by Kane, but his point is generally agreed upon. His plan, as it stands, is at least better than nothing. And it may be that even the cops can be brought around to see that.

Sam Pfeifle can be reached at spfeifle@phx.com.