The hidden cost of cops: 20 years of legal claims against the PPB

By Denis C. Theriault, The Portland Mercury, October 20, 2011

They are questions, for any curious citizen, that ought to come with simple answers.

How much does the use of excessive force and other inappropriate actions by Portland police officers—the stuff of tort claims and jury trials, but not always newspaper headlines—wind up costing taxpayers? And then, which police officers are mostly to blame?

In this case, “simple answers” are incredibly difficult to find.

20 years of legal claims (Image: The Portland Mercury)

(Image: The Portland Mercury)

A Mercury review of 20 years’ worth of legal complaints filed against the Portland Police Bureau—including settlement costs, jury awards, officers’ badge numbers, and lawyers’ fees—turns up only incomplete answers to those questions, at best, and possibly incorrect answers, at worst.

In fact, city officials question some of their own data’s reliability—data that makes it difficult to fully track, for example, which legal costs are related to use of force. And the data does not specifically identify which officers have been directly accused of misconduct.

The review raises significant concerns about the public’s ability to employ what should be an important baro-meter—legal liability—when attempting to measure its police bureau’s performance and accountability.

“That doesn’t surprise me,” says Dan Handelman of Portland Copwatch. “We’ve been trying to track this for 20 years. Every time we get some data, we get different numbers. Because it matters how you ask the questions.”

Says David Woboril, a deputy city attorney who handles police issues: “There’s a wealth of information, a wealth of data. As far as distilling conclusions, it’s difficult.”

“Difficult” may be an understatement.

For example: The city’s risk management office—which provided data from 4,674 claims filed for incidents reported in January 1991 through June 1, 2011—tracks every single officer named in court papers connected to the individual claims. It doesn’t matter whether they were tangentially involved or merely showed up on the scene right after an act of alleged misconduct happened.

Police officials say they track that information internally when reviewing officers—and also that a tort review board checks every claim as it’s filed, to glean any training lessons—but their accounting is not public.

“Commanders will use any and all information in reviewing an officer’s performance and conduct before making a recommendation,” said Lieutenant Robert King, police bureau spokesman. “It all will come in one way or the other.”

The review did turn up some eye-popping dollar amounts, at least. Portland has paid out more than $10 million to some 1,000 claimants in the time frame examined (1991 through summer 2011), plus $9.9 million more in legal fees. That’s far beyond what the Oregonian reported in a 2009 article that looked only at payouts since 2004.

Also of interest, the Mercury found that even though the overall number of claims each year has dropped, the average amount paid to claimants has actually increased, even when adjusted for inflation.

But how many of those cases are related to use of force? Once again, the city’s problematic recordkeeping makes that answer difficult to easily and fully track.

Nearly half the city’s payouts, $4.9 million, went to just 131 claimants whose cases were clearly tagged as force related. Several other cases may also involve force, according to partial summaries provided by the city, but they have been tagged more generally—making a precise accounting more difficult. That problem—vague categorization—appears especially among older cases.

Even those statistics might be inaccurate.

The Mercury asked Joanna Schwartz, a law professor at the University of California, Los Angeles, to review the city’s numbers, and she was eager to get a look at such a breadth of data. But after speaking to Woboril on her own, she wrote back and explained she had too many questions about its reliability to actually crunch any numbers.

“I spoke to David Woboril in the city attorney’s office about the data,” wrote Schwartz, who has written about the lessons police agencies should and could learn from legal cases. “He thought that the data was quite inaccurate, particularly regarding the allegations in the cases, but also regarding the payout amounts. He is working with the department to improve the quality of the data moving forward, but is concerned that this data is so faulty that little can be learned from it.”

Woboril echoed those concerns about the data when speaking to the Mercury. He said the city’s risk management office presides over it, and their aim is to help mind the city’s finances—not to promote police accountability. That’s the police bureau’s job.

Subjectivity also comes into play, Woboril said. Cases, especially those involving force, are “complex.” And so staffers make their best guess on how to classify a case when entering it into the city’s database. The city is looking to expand what its database can hold, he says.

“The first risk person who looks at it will have all the information in front of them and make their best choice,” he said. “Sometimes in the past, those weren’t the best choices.”

Woboril, as he also told the Oregonian in 2009, also cautioned that even if the data were impeccable, legal payouts are still only one way to measure a police bureau’s—or even an officer’s—performance. Sometimes it’s cheaper to settle a case than fend it off in court. On the other hand, some misconduct never makes it onto a tort claim in the first place.

“It’s a tricky thing,” says Mary-Beth Baptista, the city’s independent police review director. “Just because there’s no civil suit doesn’t mean there wasn’t misconduct.”

Raymond Gwerder, 30, was shot to death by Officer Leo Besner in 2005.

Raymond Gwerder, 30, was shot to death by Officer Leo Besner in 2005.

Still, the police bureau has taken the parade of lawsuits seriously enough to set up a formal review board for combing through the claims—most of which result in no action—and, presumably, making improvements and holding problem cops accountable when needed.

“We are doing that constantly, to learn from any tort or lawsuit claims,” says Mike Hefley, the retired detective who runs the effort for the bureau. “If upstairs wants to know who’s involved in a claim or lawsuit. I can get that to them.”

But without the public also able to look in, is the bureau doing enough on its own?

Advocates erupted last year when Leo Besner—who cost the city nearly $1 million for incidents including the shooting of Raymond Gwerder in 2005 —was made a sergeant. Chief Mike Reese defended the promotion, telling the Mercury that “people are going to have bumps in the road.”

But Besner’s example, because of all the media scrutiny, isn’t the norm.

“I wish I could say things are being handled better and there’s a better culture there,” says attorney Len Berman. “But I can only say from the field, from the trenches, that there are still egregious violations of people’s civil rights.”

Right now, to sift through which officers are directly involved in misconduct cases, citizens would need to spend weeks and big bucks poring over court records and working with attorneys. It could be the city doesn’t have much incentive to make that information easier for the public to find.

“They’re not tracking which officers cost the city the most money,” says Copwatch’s Handelman. “And when an officer is found liable, it costs the city’s insurance policy money—not the officers. So they continue what they’re doing. It doesn’t really set the officer on a different path, and it doesn’t set the bureau on a different path.”