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ONGOING COVERAGE: POLICE CHIEF SEARCH

Police oversight on trial

Recent events resurrect calls for meaningful civilian role in handling complaints of law enforcement misconduct

Response Read Police Chief Jim Nicks' statement. Also today Police oversight on trial Lingering aftershocks of 2004 Tasering Boise a model for civilian police oversight How complaints get to the Citizens' Review Commission

Karen Dorn Steele and Bill Morlin
Staff writers
June 25, 2006

A mentally disabled man buying a burrito ends up dead in March after being repeatedly shocked with police Taser guns and hog-tied on the floor of a Spokane convenience store.

One month earlier, two police detectives order the deletion of sexually explicit digital camera pictures of a city firefighter having on-duty sex with a 16-year-old girl.

And the month before that, in January, a delusional man suffering alcohol withdrawal dies in the Spokane County Jail after fighting with guards and getting a "donkey kick" to the torso by a jailer who is now a city police officer.

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In each of these cases, potential wrongdoing – maybe even criminal conduct – by people with badges was investigated by other police agencies in tight envelopes of secrecy. The public had little chance to weigh in. The review process is controlled almost completely by Spokane's police chief and county sheriff.

Now, in various corners of the community, there is increased debate about the lack of civilian oversight of the Spokane Police Department and other law enforcement agencies in the county. In fact, the issue of public accountability could very well become one of the first major questions facing a new Spokane police chief, expected to be named this summer by Mayor Dennis Hession.

The increased public scrutiny is welcomed by attorney Breean Beggs.

Law enforcement agencies shouldn't have the final authority for policing themselves, argues Beggs, executive director of the Center for Justice, a public-interest law firm representing the family of Otto Zehm, the man who died in March.

"We give law enforcement guns, the power to arrest and even kill," Beggs said. "With that power comes accountability. The police work for the citizens of Spokane."

This isn't the first time Spokane has struggled with the issue. Hundreds of people attended meetings in the 1980s to protest police misconduct. A citizens' oversight board formed in 1992 to monitor police conduct was largely gutted three years later after a hostile challenge by the Spokane Police Guild.

In 1997, the police union intervened again after the citizens' board determined a Spokane Police Department detective used excessive force against a man who later claimed in court he was beaten and illegally detained. It was the first – and only – time the board found that a police officer had used excessive force. The Spokane City Council declined to pursue discipline against the officer, but the man filed a federal lawsuit and received a cash settlement from the city in 2003.

Now, a decade later when many other cities are strengthening their powers to review police conduct, civilian oversight in Spokane is nearly defunct.

According to the City Charter, the Citizens' Review Commission is required to make annual reports to the City Council about citizen complaints and trends in the Police Department. But records show the commission hasn't been filing those reports. It hasn't reviewed a misconduct case in years, not even the controversial death of Zehm. It has no staff or budget.

"At first, we met once a month; now we meet 'as needed,'" said the Rev. Lonnie Mitchell Sr. of Bethel AME Church, a pastor who was appointed to the commission a decade ago and now serves as chairman.

"When Roger Bragdon was chief, he took care of the complaints," Mitchell said. "The complainants were satisfied – they didn't come to us. I think relations here with the police are pretty good."

The commission hasn't met because chairman Mitchell hasn't called any meetings, said retired Judge Richard Richard, appointed to the commission by former Spokane Mayor Jim West.

That's not good enough, say critics, who include the family and friends of Zehm; local women's groups; angry letter-writers to the newspaper; and the Center for Justice, which is studying how local law enforcement agencies use Tasers, dogs and other instruments of force.

At a Riverfront Park vigil on May 8 after Zehm's death, Christopher Hoogstad stepped forward to talk about his late friend. Hoogstad, who cares for developmentally disabled adults, is circulating petitions asking for an independent investigation instead of the so-called "shadow" investigation of the Spokane Police Department being conducted by the Spokane County Sheriff's Office. He says he wants an outside body to review the surveillance video taken of Zehm's encounter with police.

"The citizens' review board should be demanding the tape of Otto; it belongs to the community. Otto can't say anything – he's dead," Hoogstad said. "Police officers have very tough jobs, but they should be accountable. This is something that could happen to any of us."

Spokane County Prosecutor Steve Tucker has the surveillance video of Zehm's encounter with police, but he refuses to release it to the public, saying it's evidence in his ongoing investigation. Tucker is supposed to decide this month whether to press charges against any of the officers in Zehm's death. Zehm's family has not filed a complaint about his treatment with the Spokane Police Department's internal affairs office, said police spokesman Cpl. Tom Lee.The Spokane County Sheriff's Office has a separate process for citizen complaints, said spokesman Sgt. Dave Reagan. A complaint is given to a shift lieutenant to investigate. If there's a policy violation, it goes to the department's office of professional standards. If the complaint is sustained, it goes to the sheriff to determine whether there will be any discipline against an officer. If a citizen doesn't like the sheriff's decision, the only recourse is a civil lawsuit, Reagan said.

After the spate of recent incidents involving the police, sheriff and fire departments, City Councilwoman Mary Verner inquired about the status of Spokane's citizens' review board.

"I was told it was no longer very active," said Verner, a lawyer and a member of the city's Public Safety Committee. "I asked, 'What would it take to get it reactivated?' We should be able to give the public a chance for citizen input."

Citizen review of law enforcement agencies is a controversial topic in many American cities, including Spokane.

Advocates call it a democratic check on police power. Police departments say the powers of civilian review boards must be collectively bargained in closed-door talks between their unions and employers – cutting out the broader public. They also accuse their critics of ulterior motives.

"I've been around this controversy for years. Not a significant portion of the community is concerned. It's largely the criminal defense bar," said Chris Vick, a Seattle attorney who represents the Spokane Police Guild and the Seattle and King County guilds.

Police react strongly to the prospect of oversight because they don't want to be second-guessed, said Jennifer Shaw, legislative director of the American Civil Liberties Union of Washington and member of a blue-ribbon commission studying a first-ever civilian review board for the King County Sheriff's Department. The commission was formed after a series of officer misconduct scandals there last year.

"They do a difficult job, and they feel they can watch their own," Shaw said. "But it's our position that they are paid with tax dollars, given the public's trust and should be accountable to the public." Spokane Mayor Dennis Hession said Friday he believes the city's current oversight system works fine. Police investigate citizen complaints. The police chief decides if any should be forwarded to the Citizens' Review Commission. The City Council's three-member Public Safety Committee provides police and fire oversight, and the police chief ultimately answers to the mayor.

"To me, that's an appropriate, fair and open process where concerns of citizens can be redressed," Hession said. "I don't think I've received one negative comment from any citizen about the conduct of a police officer in the six months I've been mayor."

Hession said he intends to reappoint Mitchell and the other six members of the review commission, which hasn't examined a police misconduct complaint in almost 10 years because none has been forwarded by the chief's office.

Mitchell also serves on the city's Police Advisory Committee. Members, representing the minority, gay and disabled communities, hold low-profile meetings almost monthly with the police chief to discuss such topics as racial profiling.

Acting Spokane Police Chief Jim Nicks wouldn't respond to interview questions but issued a prepared statement saying he believes the city's current system is "responsive and accountable to the public." The department has "extensive policies and procedures in place" to investigate misconduct complaints, he said in the statement. He did not address the public's lack of access to internal investigations, which are secret.

"This process has been so effective that seldom is a case referred to the Citizens' Review Commission," Nicks said.

"Community trust and satisfaction is of utmost importance to the men and women of the Spokane Police Department," he said. "We welcome and also encourage review of the Police Department's policies and practices by individuals as well as officially recognized boards and commissions."

One of the nation's leading experts on civilian oversight is Samuel Walker, an author and professor emeritus of criminology at the University of Nebraska.

In his new book, "The New World of Police Accountability," Walker writes that an essential tool of holding all officers accountable is to maintain "an open and accessible process for citizen complaints about officer conduct."

"Traditionally, police departments regarded citizen complaints as virtually hostile acts, to be fended off if at all possible," Walker writes in his book. But in a world of new accountability, police should regard citizen complaints as "indicators of possible performance problems that need to be corrected."

More than a decade ago, Walker said, he was an advocate of civilian review boards. Today, however, he prefers "citizen oversight," usually in the form of an independent auditor or a monitor who receives complaints, investigates them and makes findings public.

Spokane's review board, which only hears cases referred to it by the chief or appealed by a citizen unhappy with the chief's decision, is more like the old model that has fallen out of favor with Walker.

Walker said although he's now far more optimistic about achieving genuine police accountability, he still remains deeply skeptical about lasting change. "Police departments, like universities, private corporations and all large bureaucracies, are extremely difficult to change," he writes.

The call for oversight in Spokane first arose in 1980.

Mary Ann Tripp, a lifelong Spokane-area resident, formed an oversight group called CIVIL – Citizens Investigating Violence in Law.

The dance instructor and single mother started her campaign after alleging that her 18-year-old son, David, was put in a chokehold and beaten by police officers, including Roger Bragdon, the man who later would become the city's police chief. Bragdon, now retired, did not return a call seeking comment.

"I went down to the police station to try to file a complaint," Tripp said last week. "But the gist of the whole thing is, I was just a distraught mother who believed everything her son said. They said that the police had done nothing wrong, and it seems it's always that way here, in Spokane."

The CIVIL group held a few public meetings, including one that attracted an estimated 250 people and then-City Manager Terry Novak. The group rented a post office box and ran a classified newspaper ad for four years, urging people to call if they were victims of police abuse, excessive force or misconduct.

"There just didn't seem to be any place for these people to turn," Tripp said. "The people would call, and they'd be desperate and be hurting and in need of help. I wanted to help them, but there was just no civilian oversight, no place to go."

The citizens' group eventually faded away, but Tripp still has a notebook full of single-line entries of names and phone numbers of people alleging various types of police abuse or misconduct in the early 1980s.

In the 1990s, Spokane citizens again called for a review panel after the beating of Rodney King in Los Angeles and the acquittal of the police officers involved – a 1992 jury verdict that triggered widespread riots in other cities.

Spokane's black community, some with complaints of repeated police harassment, pressed for a solution. A May 6, 1992, poll of Spokane County residents by Robinson Research Inc. found that more than two-thirds of those surveyed thought reports of police misconduct should be investigated by citizens rather than by police.

With the support of then-Mayor Sheri Barnard, an 11-member Citizens' Review Panel was established, giving residents the right to appeal when former Police Chief Terry Mangan refused to discipline an officer after a complaint.

"Chief Mangan was opposed. He wanted no citizen review over the police," Barnard recalled recently.

Mangan had the power to determine whether a citizen's grievance was classified a "complaint" or an "inquiry." Mangan blocked several investigations of his officers by ruling that citizens' complaints were inquiries not subject to review by the panel.

Mangan appointed four members and Barnard named seven. Because it took a super-majority of eight to refer a complaint to the city's Public Safety Committee, which had subpoena power and the authority to hire an outside attorney, few complaints moved to that level.

Police officials blacked out all identifying information about officers – making it impossible for the group to do any trend monitoring, said Rich Kuhling, a Spokane attorney who served as chairman of the panel. As a compromise, the panel developed a code to look at trends without disclosing names, Kuhling said. That allowed the panel to determine whether certain officers were named in multiple complaints. In 1998, records show, the panel found there were three complaints lodged against one officer, badge number 299, which involved "improper conduct." That officer later was fired, according to the records, but his identity and details of his discharge were withheld from the public.

Mangan's appointees generally voted as a group and were able to veto most reviews, said Judith Gilmore, a community activist who served on the panel.

At the time, Mangan, who called himself an advocate of "community-oriented policing," said he saw little point to the panel's work because the power to discipline officers rested with him and with the city manager. Mangan later retired as chief and took a consulting job with the FBI in Virginia.

Marie Yates, 83, was one of Mangan's original appointees. A police ally and volunteer at the COPS Southeast office who once helped purchase a police dog for the force, Yates said she was embarrassed to be on Barnard's panel "because it had too many members who were critical of the police."

The next chief, Bragdon, reappointed her to the slot representing police captains and lieutenants. Yates still serves on the current commission.

The Barnard-era panel heard several cases, including the complaint of a young black man who said he'd been repeatedly stopped by police. He later went on to have a successful life and won a teaching award, and Gilmore said she felt vindicated.

But the panel was short-lived.

In September 1992, the Spokane Police Guild and the Lieutenants and Captains Association filed an unfair labor practice complaint with the state Public Employment Relations Commission, an Olympia group that oversees labor disputes in public agencies. The city of Spokane should have negotiated with police before forming the oversight commission because it constituted a change in working conditions, said Vick, the attorney who filed the complaint.

The Olympia commission sided with the police, ordering Spokane in a 1995 ruling to disband the group and void all of its findings. The Spokane City Council didn't challenge the administrative ruling in court, and the city's police review commission was dissolved.

"It was the first civilian review board decision in Washington state," Vick said.

After negotiations with police, a new seven-member Citizens' Review Commission was formed in 1995 by former Spokane Mayor Jack Geraghty. That is the commission that exists today.

Members agree not to release any information or names of officers and to indemnify the city if they are sued – putting the legal risk on the volunteer commissioners. The commission can only rule on whether the Police Department's investigation of a citizen complaint is "thorough and objective." Members cannot investigate individual officers and lack any subpoena power.

If the police chief upholds the conduct of an officer over the objections of a citizen, the citizen can file a "request for review" with the commission within 30 days. Meetings are not open to the public.

When the commission agreed to review the case of Christopher "Chrys" Ostrander, an organic farmer active in Spokane's sustainable agriculture movement, tensions with police reignited.

On Jan. 23, 1997, the 39-year old Ostrander was returning to Tolstoy Farm in Davenport with his wife and three of her children. He had a suspended driver's license because he didn't have car insurance at the time. But he said he drove the family's rickety van with a "Question Authority" sticker that night because his wife was tired and didn't see well in the dark.

"I broke the law and drove the car," Ostrander said in a recent interview.

In Airway Heights, he ran a red light before pulling into a grocery store parking lot.

"A scruffy guy in plainclothes approached me. He pulled me out of the car by my hair. He jumped on top of me and ground my face into the pavement. I was beaten up in front of my wife and the kids," Ostrander said in an interview and in written documents he provided to the review commission in 1997.

Spokane police Detective Tim Madsen and sheriff's Deputy Shane McClary said in a report they were following Ostrander because he was visiting a home in Spokane next-door to a suspected drug house. Ostrander said Madsen twisted his right arm and jammed it between his shoulder blades. Ostrander's arrest was later voided after courts ruled it was an illegal "pretext stop."

"I got a severe injury that resulted in surgery. I still have problems with my right arm," he said. The officers denied they used excessive force.

After spending a night in jail, Ostrander wrote a long description of the arrest and took it to the Police Department's internal affairs division – a requirement for lodging a citizen complaint. He also leafleted outside the Police Department, contacted the news media, complained to the city's Human Rights Commission and got a lawyer at the Center for Justice.

"People are either afraid of the police or think it's not worth the hassle, but it's important that people speak out," Ostrander said. "If they don't, the police think they can get away with it."

On Aug. 13, 1997, the Citizens' Review Commission voted to forward Ostrander's case to the city's Public Safety Committee for an inquiry. Madsen refused to appear before the commission, records show. The Public Safety Committee declined further review, sending the case back to the commission. In September 1997, six members of the commission voted 4-1-1 (with one abstention) in Ostrander's favor, finding that Madsen "used excessive force" against Ostrander.

The Spokane Police Guild again responded by filing an unfair labor practice complaint on Sept. 29, 1997, saying the review commission was taking on an illegal disciplinary role. In January 1998, acting on the recommendation of the Public Safety Committee, the city agreed not to proceed with an investigation of Madsen's conduct in exchange for the guild dropping its unfair labor complaint.

"Because the Police Guild is so powerful, the City Council abandoned me. They buckled," Ostrander said.

The citizen's commission exceeded its authority, said Assistant City Attorney Rocky Treppiedi.

"Chief Mangan and the internal affairs officers had to go back at them," Treppiedi said. "They said, 'You are misapplying the law.'"

In 2003, a federal civil rights suit brought on Ostrander's behalf by the Center for Justice ended in a settlement with the city of Spokane. During the litigation, the city countersued Ostrander for defamation and malicious prosecution, but the charges were dismissed and the dismissal was upheld by the 9th U.S. Circuit Court of Appeals.

On Friday, responding to a public records request, the city released the Nov. 19, 2003, settlement agreement. It shows that Ostrander was paid $20,000.

"Lack of citizen oversight is a real problem in Spokane; Chris would not have had to litigate if there had been proper citizens' review," said his attorney, David Blair-Loy, now an ACLU lawyer in San Diego.

"There is plenty of appropriate citizen oversight of the Police Department and citizen complaints," Treppiedi said. "No citizen oversight panel can give a citizen compensation. You can't mix the two."

Police nationwide have developed sophisticated techniques to fight citizens' review boards, including using charges of unfair labor practices and countersuits (sometimes called SLAPP suits, or Strategic Lawsuits Against Public Participation) against citizens.

In 1994, the Seattle Police Officers Guild filed defamation suits against six citizens who filed complaints that were not upheld by the department's internal investigations section.

The guild's lawsuits ultimately were dropped, but citizen complaints in Seattle dropped almost 75 percent in the next six months, according to the Seattle Times.

When another dispute over citizen complaints flared in Seattle this year, the Seattle City Council's Public Safety Committee proposed stronger legal protection for the citizens' board, which oversees the Office of Professional Accountability for Seattle police. The board hasn't released a report on police conduct for two years over fears of being sued by the police union or individual officers.

Three board reports have been held up by the dispute: An overview on the use of Tasers; a report on the cases in which the police chief reversed disciplinary decisions reached by the OPA, and a routine summary of 2004 cases.

On May 30, the Seattle City Council voted unanimously to indemnify the board and give its members access to uncensored internal affairs reports.

"I'm so happy with what the council did. This is transparency and good government," said Peter Holmes, the lawyer who heads the OPA Review Board.

The new agreement doesn't take effect until Jan. 1, to allow the changes to be incorporated into the police union's next labor contract. The Seattle Police Guild has filed an unfair labor practice over the council's vote, Vick said.

"Like in Spokane, we were born out of litigation," Holmes said.

Tension between citizens' review boards and the police is born of a cultural clash, said Nick Licata, president of the Seattle City Council and chairman of the city's Public Safety Committee.

"I've found many police officers feel they aren't given their proper level of respect. They think politicians like me go out of our way to try to placate their critics," Licata said. But cities should be able to respect the police while overseeing their conduct, he added.

"I've attended a couple of conferences on civilian oversight," Licata said. "I've learned no matter what system you set up, there will be some people who feel it's not fair."

In Spokane, 79-year-old Mary Ann Tripp clutches her 25-year-old notebook full of citizen complaints and said she still hasn't given up hope of having civilian oversight of police in her hometown.

"There's a desperate need for it," she said. "My fear, though, is people are afraid to come forward, and I don't blame them. We need really strong people who are not afraid to buck the system. I don't see how it's going to work, but we have got to try."

By the numbers

Complaints by year

Against Spokane Police Department officers. Includes citizen complaints and internal complaints about inadequate response, excessive force and demeanor. (Source: Spokane Police Department Internal Affairs data)

2001 67

2002 54

2003 65

2004 62

2005 43

Against Spokane County Sheriff's Office deputies. Numbers include jail complaints (Source: Spokane County Sheriff's Office of Professional Standards)

2001 53

2002 81

2003 68

2004 60

2005 57