Smoke and Tentacles
Examining the EPD’s internal quandary
by Gary Woodcock
The controversy over the police auditor and the Civilian Review Board (CRB) has come to involve so many persons of authority and consequence, including the voters of Eugene, in viewpoints both positive and negative, that I feel compelled to weigh in. I submit that the most important issue on the November ballot for the well-being of Eugene was the passage of Measure 20-146.
Every police department, everywhere in the world, has its own unique departmental personality, developed gradually from its inception through to the present. This personality does not evolve from the pious platitudes of founding ordinances or mission statements but rather from the real-life personalities of the men who were there originally, and later from the men and women of the rank and file who followed. The common thread through all is a department’s informal leadership — those who absorb the attitudes of their predecessors, modify them with their own attitudes and experiences, and then are strong enough to pass them on to the succeeding generation of officers.
Chiefs and captains, lieutenants and sergeants promoted from the ranks will usually conform to the mission statement and can have an influence. But unless they are stronger than the informal leadership, all they can do is legislate the actions of the rank and file when the rank and file is in their direct sight. Regardless of all the sensitivity training a troubled department can provide, the rank and file will not change the way they think and feel unless the informal leadership buys into it. From all indications, it appears that neither the formal nor informal leaderships of the Eugene Police Department bought into the establishment of a Police auditor and a CRB.
Police departments very basically fall into three categories. One is the highly motivated, service-oriented agency, where the needs of the community are first and foremost. The second is the occupation-type force with an “us against them” attitude toward the community and which does as little as possible while making every excuse as to why it canít provide better service. The third is a combination of the first two, where adequate service is provided albeit reluctantly, and there is a wary but accepted accommodation between the community and their police. Unfortunately, I see the Eugene Police Department (EPD) as falling into the second category. And under Chief Lehner it went deeper so by the day.
Lehner is gone now and, in my opinion, not a moment too soon. He came here at the tail end of the Magaña/Lara mess. He was saddled with an auditor and a Civilian Review Board, which he had previously opposed in Tucson. It is understandable that he may have felt this was an intrusion on his managerial prerogatives or even his integrity. However, it was the will of the people and the law.
Lehner’s response was passive resistance and spite. He resisted all pleas for more patrol downtown with the usual “lack of manpower” excuse. Betty Snowden and other downtown merchants made a widely publicized demand at a City Council meeting for help to control the downtown mischief-makers. Just a few days later Lehner sent an eight-man traffic squad to the downtown area on the pretext of increased traffic violations. Sixty-seven people carrying on their legitimate downtown business were ticketed by the squad with mostly petty but expensive traffic violations. Not one of those 67 had Kool Aid hair or facial piercings or Goth clothing or the accoutrements of the wandering homeless. That the squad was so zealous reflects the agreement of the informal leadership with Lehner’s thinking. Then, as recent events have shown, the passive resistance turned into outright aggression and meanness, first by Lehner and then by the police union.
The prime argument against civilian review is that police are unique and cannot be understood by those who are without police training and experience. Therefore, according to this thinking, law enforcement should police itself, as do doctors and lawyers who also have unique training and experiences. Sounds good in theory but we all know how that sometimes doesn’t work in those professions either. Doctors and lawyers have a hard time abusing the ethics of their profession without leaving a trail of some kind that can usually be followed to an actionable result. Seldom so in law enforcement.
The “police power” is a function of the state. It derives in antiquity from the very essence of the human social contract. In its utmost simplicity it has been defined as the maintenance of order. Anything that is out of order usually gets a look-see by a “police officer.”
Under our form of government, the governor is the chief police officer of the state. Since he can’t be everywhere, his police power is delegated to counties and municipalities, through their charters, for the efficiency of its control. Police officers are hired by these chartered subdivisions and sworn to their duties there, but they are really officers of the state.
No one, including the governor, can legally order a police officer not to make an arrest for a crime he or she has witnessed or for a serious crime he or she has probable cause to believe a person(s) has committed. Thus, once an arrest has been made, only the arresting officer can legally “unarrest” the person if he or she finds his or her observation or probable cause was faulty. Additionally, as long as the arrest was made in good faith, the officer is protected. Otherwise it is up to other state officials, e.g. prosecutors and judges, to determine whether the police officer was right or wrong — provided the officer has told the truth. In reality, their actual power is virtually unbridled. And what an awesome power it is, considering that the result of the police officer’s actions could be fine, incarceration or even death for the arrestee!
Why would someone so sworn abuse such power? Because of all the human frailties: ego, anger, frustration, recognition, greed, revenge, lust, power, fear, and any others that can come to mind.
But what would someone with all that power have to fear? Fear of doing something wrong and being found out, resulting in discipline, lawsuit, loss of job, or even their own incarceration.
The opportunity for the abuse of police power by a law enforcement officer succumbing to human frailty is almost unlimited, because for most of his or her time on duty an officer works alone and unsupervised. Additionally, the job can often be boring, which brings into play temptations for the rogue, as in “An idle mind is the devil’s workshop,” etc.
This opportunity for abuse is further enhanced because there is a presumption that a police officer always officially tells the truth, whether under oath or not. Since all police officers know their actions could be called into scrutiny at any time on the flimsiest of complaints, the “Blue Curtain” usually falls when one of their own becomes the subject of a complaint. This happened in the Magaña/Lara mess with disastrous results for the department.
The women involved in Magaña/Lara made complaints to other officers who were told by Magaña/Lara that the women were disgruntled informants. Thus the complaints were ignored. However, when increasingly more complaints surfaced , those who ignored had to know there was validity somewhere and that they themselves could now be in trouble. Quite obviously, the Blue Curtain thickened and deepened. Ignore the problem and it might go away. But in so doing, for six years, the entire department gradually became tainted.
In a department as small as Eugene’s there is no way that everyone did not know at least some small part of the tale that finally emerged, if not all of it. A bad police officer is shunned by others who don’t want to be involved but who know that he or she is bad. The shunning gets noticed and soon questions are asked. The shunning grows. Rookie officers are subtlety guided or overtly told to stay away.
Magaña and Lara broke their oaths to the state. They violated the trust and good faith of their fellow officers, who in the cause of these rogue officers broke their own oaths and are now reaping the consequences with the passage of Measure 20-146. There was guilty knowledge and it was ignored until it could not be ignored anymore.
So, where do we go from here?
The attempt to keep the police auditor and the CRB out of the internal investigation procedure has even less basis now than before Measure 20-146 passed. The stated duties of each are now a constitutional mandate, the City Charter being Eugene’s constitution, borne forth by a large majority and as such cannot be abrogated by any previous nebulous agreements with the police union.
Other attempts to stifle the auditor and the review board by the EPD in not carrying out a prompt internal investigation in cases where criminal charges are awaiting adjudication even though a citizen’s complaint has been made have no groundings in any legal theory. The actions of the police officer making a justified arrest, even though he or she uses vulgar discourtesy or excessive force, have no bearing on the guilt or innocence of the arrestee. That guilt or innocence is for the courts to decide. The only bearing on the court’s finding that the outcome of an internal investigation might have is that defense counsel, through discovery, might have the ammunition to ask some embarrassing but irrelevant questions, or — heaven forbid — might find evidence to prove his client innocent. If the latter were the case, justice would be doubly served.
This stubbornly resistant policy by the EPD, however, seems to have come very close on the heels of the highly publicized, emotionally charged arrest and Tasering incident at Willamette and Broadway on May 30. What arrest? What Tasering? Yes, it seems to be conveniently fading from a once outraged community’s memory.
If any incident warrants a thorough, honest and honorable internal investigation this one does. Now there is a constitutional authority for the police auditor and the CRB to see that it is done.
So many unusual things happened in this case that a multitude of questions that won’t be covered in any court trial beg to be answered. For example:
• Was there prior collusion between federal authorities and the EPD to disrupt this demonstration because it was thought to have been sponsored by the Pitchfork Rebellion?
• Have there been other similar incidents of possible collusion?
• Why were so many Eugene police readily available nearby?
• Did they know the federal officer was going to make the call?
• Is there any formal or informal or even secret agreement that the EPD will provide federal authorities with non-criminal information on persons of interest with anti-government opinions? (The Maryland State Police were recently taken to task for infiltrating an anti-war group and an anti-death penalty group from 2002 to 2006 for illegal domestic spying purposes, using federal funds. Even though nothing was found to be illegal or threatening within either group the names of individual members were placed on a shared regional law enforcement web site listing them as drug dealers or suspected terrorists. The Register-Guard on Aug. 16, 2008, ran an article on proposed changes to Justice Department regulations that would make it easier for local police to engage in domestic spying and report to federal authority.)
• What influence, power or information did Lehner have that convinced the district attorney, with a reduced budget and reportedly heavy case-load, to assume this case over the Municipal Court and to bring ridiculous felony charges in such a routine and insignificant case? And why?
• Why did City Manager Jon Ruiz go along with Lehner’s obstructionist policy in this case and the “super secret sex case,” that now seems to be nothing more than a further example of Lehner’s spite and meanness , and then completely reverse himself as soon as Lehner was gone?
Taser first and ask questions later? A few months ago at a City Council work session, while the Police Commission was giving an annual report , the issue of the use of Tasers arose and whether there seemed to be a conflict between what the commission had recommended and what was actually occurring. Lehner was asked to explain the EPD’s policy. In effect, he said that the Taser had become the first line of defense when an officer was confronted with resistance, instead of next to last in the use of force hierarchy. He said that most injuries to police officers are impact injuries caused to knees and elbows when falling to the ground wrestling an unruly suspect. Using the Taser first would avoid these injuries and save the city money. A couple of council members were surprised by his answer as they thought the Taser, with its lethal possibilities, was to be used only before the gun. When Councilor Bonny Bettman asked the reporting commission member if that was the right interpretation, Lehner jumped in front of the seated member and put his hand over his microphone and ordered him not to answer as the case above was still under investigation. The question was never answered as Bettman and Lehner exchanged words and things moved on.
So is this what all the confusion about? Did Lehner give orders contrary to Police Commission recommendations, and the arresting officers at Broadway and Willamette acted on them? Did Lehner willfully cause sufficient confusion to cover his “six” until he could get out of here?
So much smoke screening of these issues; so many tentacles to be untangled.
City Manager Ruiz has given direction to Interim Chief Pete Kerns to resume internal investigations and cooperate with the interim police auditor and the CRB. Unquestionably, this is a step in the right direction and admittedly came before the Nov. 4 mandate.
However, the status of two of the three key players, the auditor and the police chief, in this ongoing drama is in flux. Both are holding interim positions. The third player, the city manager, will have a significant influence on what happens to the other two and who might replace them if it should come to that. Considering the recent histories of all three persons currently holding these positions, something should be put into place to insure continued cooperation, no matter who has any of these jobs.
On Nov. 10, Councilor Bettman proposed a measure that would lead to a truly effective and independent Police auditor and CRB. She has been the council’s conscience and has seen through potential machinations far too often to be disregarded now. A strong police auditor and a strong CRB can be the best friends of a good police department and the worst enemies of a bad one.
Gary W. Woodcock of Eugene is a retired lieutenant from the Baltimore Police Department.