Portland City Manager Jon Jennings says in a letter to the city’s police citizen oversight board that the city is working on a partnership with academic institutions to study racial disparities in arrests and the use of force, and to conduct regular bias reviews.

Portland City Manager Jon Jennings Brianna Soukup/Staff Photographer

But Jennings rejected a proposal by the Police Citizen Review Subcommittee to expand its oversight to police complaints that originate within the department, and rejected the idea of using a “reasonable citizen” standard to discuss use of force by officers during after-action evaluations.

Jennings said the department is seeking to partner with the Institute on Race and Justice at Northeastern University, as well as the Cutler Institute at the University of Southern Maine, to analyze historical arrest and police contact data, and to develop a system to regularly evaluate bias in Portland’s policing going forward.

The department also is revising its policy on internal affairs investigations, and said it was nearly done rewriting and reformatting the complaint form and submission process, Jennings said.

“While I am extremely proud of our Portland Police Department, I firmly believe that there is always room for improvement, and I appreciate the role that the PCRS is playing in helping us do exactly that,” Jennings wrote. “I have addressed each of the PCRS’s recommendations separately below, but I do want you to know that work on these items, and others, are ongoing and we are committed to continuing to improve the Police Department.”

The changes the department will adopt in some form include a recommendation to collect and distribute better data on who comes into contact with police and a new records management system that is expected to make data-crunching much easier when it goes live in January, Jennings wrote. The department also plans to include more information and analysis in the summary report released each year on internal affairs cases. The department also will purchase additional business cards for police to hand out to the public.

But Jennings punted on whether two citizen members should be added to an internal panel of top police officials who evaluate every incident involving the use of force, saying that doing so could have labor implications.

The city’s contracts with its two police labor unions expired in December 2019 and are up for renegotiation.

Jennings also wrote that using a “reasonable citizen” standard to evaluate whether police were justified in the use of force was unworkable because the current standard of what a “reasonable officer” would have done in a similar situation is the foundational test established by the U.S. Supreme Court and written into decades of supporting case law.

“For many reasons, it would be inadvisable for us to alter that standard, even within our internal review,” Jennings wrote. “Although this could further stifle police staff from their ability to be self-critical, I can also see some value in having a perspective on use-of-force incidents from outside of the Police Department. Because this is a complicated issue that could also have labor implications, Chief Clark and I will continue exploring our options for bringing additional perspective to the use-of-force review process.”

Committee member the Rev. Kenneth I. Lewis Jr. pushed back against the dependence on case law as a sole guiding principal.

“Although it is a landmark legal standard, we know that landmark legal standards are not always appropriate,” Lewis said. “I could name a few but I won’t right now, Plessy versus Ferguson, things of that sort,” referring to the 1898 U.S. Supreme Court case that upheld racial segregation under the “separate but equal” doctrine.

Lewis was also critical of the suggestion that having a citizen on the internal use-of-force review panel would hinder the process.

“I don’t know how me in the room (with police) or someone from this board or any other citizen in this room could stifle self-criticality,” Lewis said. “I don’t understand that particular phrase. You’re not going to be open and honest because a citizen is in the room?”

Associate Corporation Counsel Anne Torregrossa said that despite the phrasing in the response letter, Jennings and Clark are interested in exploring bringing in an outside set of eyes.

“Neither one of them said, ‘Hell no,'” Torregrossa said, leaving the door open for more discussion.

“I don’t necessarily read what you just said in this document,” Lewis responded.

A potential conflict with the two police unions also was cited as a reason to not allow the volunteer committee to review officer-on-officer complaints.

“In addition to potential labor implications, the Police Department has worked long and hard to foster an atmosphere where officers and supervisors understand the expectation that they report concerns about their colleagues and are comfortable doing so,” Jennings said. “The very last thing the city wants to do is stifle that willingness to report potential wrongdoing by other members of the Police Department.”

Jennings added: “While an outside review makes sense when investigating complaints from citizens who have no power to ensure the integrity of the process, I don’t think that the same concerns apply to internal complaints.”

Committee members also were skeptical of the reasoning in Jennings’ response. The process for internal and external complaints is exactly the same, so why should an after-the-fact review have any different effect?

“(An internal complaint) follows the existing IA process and protocol,” Lewis said. “I don’t see where the harm is, because it’s another set of eyes around the process. We talk about potential labor implications. That continues to come up with items, and I know that is an important piece, but I don’t know how this inhibits the atmosphere of the engagement of colleagues and being comfortable. I think change and progress is inherently uncomfortable. If we always lean on what’s comfortable, everything will stay exactly the way it is.”

Torregrossa said Jennings and Clark did not understand what problem the committee was looking to fix by adding internal complaints.

Lewis, again, pushed back, and said the issue was philosophical to him.

“I don’t think I’m trying to fix a problem,” he said.” I’m trying to improve a process which is focused on complaints.”

Currently, the seven-member subcommittee examines only the internal affairs cases brought by the public against police, and may only make a yes-or-no determination if the internal affairs investigation was “thorough, fair, objective and timely.”

But there are no written definitions for those four key standards, and the group is not permitted to recommend disciplinary measures or pass judgment on officer conduct. It’s review of internal affairs files occurs behind closed doors – personnel investigations are confidential by law – and the review only occurs after a complaint case is over and decided.

Since the committee was created by ordinance in 2002, the group has never found an internal affairs investigation to be deficient, leading some members to believe the subcommittee offers only the appearance of rigorous oversight without any of the substantive checks on a process in which police officers are trusted to investigate their colleagues.

The potential for opposition to reforms by police labor unions harks back to the founding of the police citizen review group, which was spurred by a high-profile case of excessive force, in which a police sergeant allegedly used a racial slur against two Sudanese teenagers.

The original vision for the police review subcommittee would have granted the group more power, but that vision was nixed after the Maine Labor Relations Board determined that imposing such a system constituted changes in working conditions and must be the bargained over.

But the MLRB left a narrow middle ground that did not require bargaining: Permit a citizens review panel to evaluate the internal affairs investigation process – not the alleged misconduct itself. Portland’s ordinance conforms to those restrictions, and is the only such citizen-oversight group in the state.

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