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Who Watches the Watchmen?

Advocates want Boise's Office of the Community Ombudsman position filled sooner rather than later, but Mayor Dave Bieter is in no hurry

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In the early morning hours of Feb. 16, Boise police responded to a report of a man using a crowbar to break out the windows of a duplex in the Depot Bench neighborhood at the corner of Malad and Gourley streets. Officer Jason Green was the first on the scene and tried to make contact with the man as more officers arrived. According to initial reports, the man, later identified as Michael Casper, 26, of Boise, fired gunshots inside the residence, then reached outside the window and pointed a pistol at another officer. Green fired his weapon at Casper, who died from a gunshot wound to the chest (for more on the shooting, see News, Page 6).

An investigation by the county-wide Critical Incident Task Force (CITF) continues, but upon its completion, a separate investigation will be conducted by the Boise Office of the Community Ombudsman led by Dennis Dunne, who has held the position on a part-time basis since July 2013, when Pierce Murphy, who was the full-time ombudsman for 14 years, left Boise to perform similar duties in Seattle.

Along with police oversight, it's the ombudsman's job to review internal police investigations and look into "critical incidents," in which police use force that results in injury or death. The ombudsman also regularly reports to the Boise City Council on incidents of concern and law enforcement trends that may be of interest to the Council and the public.

The "interim" in Dunne's job title worries some, including Dunne. Many remember the spate of police-involved shootings that spurred the creation of the office in 1999, and they fear independent police oversight will go by the wayside if a permanent replacement for Murphy isn't found soon. At City Hall, a nationwide search for a new ombudsman has stalled, and Mayor Dave Bieter is considering asking the City Council to downsize the position from full-time to part-time, suggesting there's little rush to fill the vacancy by citing the low number of complaints the ombudsman has received in recent years. Ultimately, the ombudsman's role may shrink, and that's a move that some say would undermine one of the institutions that helped rebuild community trust in the BPD for more than 15 years.

"I think the ombudsman's office is in a great space right now," Murphy told Boise Weekly from his new office in Seattle. "But you can't say you no longer have need for the systems that got us here."

'The Runaround'

As a community relations specialist, Melissa Baker knew that one of her principal jobs would be to educate Boiseans on the systems Murphy was referring to. Baker, who lives in Charlotte, S.C., applied for the top job at Boise's Office of the Community Ombudsman in the fall of 2014 and consulted regularly with Murphy. Out of those talks, she came to understand that should she land the position, she'd need to show the community what an ombudsman is, what the office does and why it's important.

"One thing [Murphy] said that was really important to me, he felt like cases or reports were down because he felt like the position had been vacant for so long that people didn't think it was there," Baker said. "That indicated to me that right out of the gate, I'd be doing a lot of education and outreach to the community."

The number of complaints lodged with the ombudsman against BPD officers and the number of critical incidents have declined in recent years. In 2012, Murphy investigated 92 cases, including four critical incidents and 13 complaints. The next year, the office investigated 64 cases including two critical incidents and eight complaints. In the 2014 mid-year report, the office investigated 21 cases, with one complaint.

Baker has experience with the mentally ill, child abuse and fair housing investigations, police disciplinary review, and strategic community relations, and she is a member of the National Association of Human Rights Workers. She relished the thought of putting those skills to use in Boise. Baker said the city offered her the ombudsman position, but negotiations snagged on the cost of moving her family to Boise and on what Baker described as an "invasive" series of background checks. When rumors began circulating about Bieter looking into reducing the ombudsman's position to part-time, Baker began considering a lawsuit against the city for rescinding its original employment offer.

"[The city] hasn't given me a legitimate business reason," she said. "Honestly, I feel like I've been getting the runaround because I'm getting so many answers."

Baker learned about the ombudsman's position in Boise from a brochure and letter mailed to her by a California recruiter. After two phone interviews, the city flew her from Charlotte to Boise. During her stay Oct. 19-22, 2014, she had an in-person interview with a panel of executive staff, including Chief Deputy City Attorney Steve Rutherford; then-BPD Officer (now Chief) Bill Bones; City Human Resources Director Shawn Miller; Stephanie DeMars from Human Resources; and Mayoral Administrative Assistant Jade Riley. Baker had a separate interview with Mayor Bieter, during which Baker said he assured her that the job would be a full-time position. City staff told Baker that they would have an answer for her by the first week of November 2014.

November came and went. On Jan. 5, 2015, Baker received a phone call from Bieter, who said the position had initially been offered to another candidate who had declined. Now, he was offering it to her. She told him she was honored and, the next day, she received a conditional offer of employment in the mail. Once Human Resources had completed a background check, she'd be given a start date and her annual salary would be $95,000. She was elated by the offer, but parts of the agreement worried her: The letter stated she would be reimbursed $6,400 for moving costs—it was going to cost her more than twice that to ship her possessions to Boise. She made a counter offer of $23,000 for moving expenses and requested her first paycheck be remitted to her upon her arrival in Boise. Baker told BW that If she took the job, she would be a single mother moving across the country who hadn't had a paycheck in six weeks. When she heard that the mayor balked at her moving expenses, she was furious.

"I don't know many Americans who could go six weeks without a paycheck and move," Baker said. "I don't know how the mayor lives, but my sense is that he's not living like the rest of America, let alone the fact that I never brought up that I'm a single parent. Does that mean he wants a wealthy person?"

A private investigator arrived in Charlotte on Jan.19 to conduct a background check on Baker. She described the probe as exhaustive and invasive, with the investigator speaking to her friends and co-workers about her personal and professional life. He examined an incident in which Baker and her family were victims of a crime. She wouldn't go into detail about the crime itself, describing it as "very personal," but she said it resulted in a grand jury investigation and stressed that the case reflected no criminal wrongdoing on her part. Baker believed she passed with flying colors.

"[Shawn Miller] got back to me and he told me, 'You have a lot of fans.' He said, 'You are very highly respected both personally and professionally,'" she told BW.

While Baker was in regular contact with the city's Human Resources Department, she was getting mixed or no signals from Bieter's office. Then she received word that the mayor had rejected her counter proposal for moving costs—and she hadn't been given a start date.

"Did I pass the fingerprints? Did I pass the background check? He said yes. Why don't I have a start date? I got a lot of different answers: The mayor was going in a different direction with the position; 'he had problems with relocation," Baker said.

Baker said that the process made her feel as though the city's right hand didn't know what its left hand was doing. Though she told BW she was still interested in the job, adding that Miller was helpful and supportive, her experience with the mayor left her feeling as though other areas of city government may have been unaware of the conflict happening in her pursuit of the position.

"It appeared to me that [the Boise City Council] didn't seem to know what my side of the story was, what I had been told and what I was going through. I'm not sure if they were part of the decision," Baker said.

The mayor's office doesn't comment on personnel issues, but Communications Director Mike Journee said Bieter is considering asking City Council to reduce the position from full- to part-time because of a drop in the number of complaints made to the ombudsman's office as well as the unsuccessful attempts to fill a full-time position. Currently, Journee said, there's no particular urgency to take Dunne out of the role of interim ombudsman, and shrinking the job could be seen as a move toward greater fiscal responsibility at City Hall and a less adversarial relationship with BPD.

"This position will continue; it's just a matter of being a proper steward of public resources and making sure that the workload and the position match," Journee said. "The importance of having a position like this is so people can understand police operations, what happens and why."

'Losing that Independent Voice'

The city is considering reducing the ombudsman's position at a time when communities elsewhere are strengthening civilian oversight of the police. The role played by community ombudsmen—and the larger conversation about law enforcement oversight—has been center stage during the past year, after high-profile incidents like the police-involved deaths of 43-year-old Eric Garner in Staten Island, NY, and 19-year-old Michael Brown in Ferguson, Mo. According to the National Association for Civilian Oversight of Law Enforcement, there are more than 200 such entities, including ombuds and citizen review boards, in the United States. Between two and five are established every year, many of them in small and medium-size cities like Boise, while larger cities have longer histories with these organizations. New York City has the largest, with more than 100 staff members investigating civilian complaints, commendations and incidents involving officer-related use of force. Los Angeles has an ombudsman's staff of about 30. Some cities get their oversight from offices like Boise's, others use panels, working groups or commissions.

There is no one-size-fits-all approach to civilian oversight, as every community has different needs and resources. Ferguson, Mo., is in the process of establishing a citizen review board in the wake of race demonstrations following the shooting death of Michael Brown, a black suspect shot and killed by a white police officer in August 2014. Some communities have prosecutorial oversight, in which district attorneys or other non-civilian individuals or agencies watchdog the police. But according to NACOLE President Brian Buchner, civilians are uniquely positioned to bridge the gap between the police and the communities they serve.

"I think there's something special about civilian oversight, but we recognize that's not the only way a police department might become more accountable. Any effort that doesn't include civilian oversight is missing out on a critical link to the community," Buchner said.

There are few ways to measure the effectiveness of civilian oversight. In part, because the public's faith in law enforcement is difficult to quantify. Another hurdle is the many ways in which hard data can be read. Commonly used metrics like the number of civilian complaints against a police department may reflect the public's faith that its concerns will be addressed, rather than lack of faith in law enforcement itself. Buckner said that policy recommendations and community outreach improve police outcomes and higher public trust, but the ultimate value of consistent oversight of police is the way they spur law enforcement to respond to community problems proactively, identifying and addressing systemic issues before them become chronic and difficult to correct. Reducing public oversight, even at a time when there are few complaints made against police, is more complicated than shrinking a job due to a smaller workload: It's relaxing pressure on police departments to address community concerns.

"Oversight plays a general role in providing independent perspective. To limit or downsize an office—there's the serious risk of losing that independent voice," Buchner said.

For Reno News & Review Editor Brian Burghart, who collects nationwide reports of police-involved shootings on his website, fatalencounters.org, the effects of shrinking civilian oversight are tangible. Reducing the capacity of an ombudsman "decreases the ability to do the job when there's a crisis."

"That's exactly the opposite of what you want," Burghart said. "That's why you have downtime sometimes, so you're staffed for crisis,"

Watching the Watchers

There are a number of reasons why city and police leadership in Boise may have a hot-and-cold relationship with civilian oversight, but a historical source of tension has been the multi-agency Critical Incident Task Force, which was most recently activated after the Feb. 16 shooting of Michael Casper.

The problem, according to Burghart, is that task forces like CITF aren't oversight so much as cops overseeing other cops. According to Burghart, police departments sometimes push back against ombudsman offices because they don't like "somebody who's not their boss looking over their shoulder."

"Their friends investigate them, and the case goes to the district attorney, who's really just the top cop," he said.

While police investigations into officer-involved shootings are kept local, so are reports of such shootings in the media. Since events in Ferguson, Mo. increased media attention has been given to instances of police-involved violence, but Burghart said such incidents are so common that they nearly always remain unreported at the national level. Based on his research, he estimates that if the Associated Press ran a story about every officer-involved homicide, there would be three of them every day, and that "probably 600 people have been killed since Mike Brown."

"Our nation has had its consciousness raised on this topic, and it's still not news. It is so common that it's not a national story," he said.

Burghart's crusade began in May 2012, when, on his way home from work, he saw a group of police cars near the Truckee River in Reno, Nev. When he got home, he flipped open his laptop and started investigating. The police had pulled over a stolen car and shot and killed the driver, Jace Herndon, 41. After looking at news reports of the incident, he realized that none of them had information about how many police killings had taken place over a year in Nevada's Washoe County.

After more digging, Burghart learned there was no single database of all police-related shootings nationwide, let alone one with the data broken down by state, county or city. The news and reports are out there—"I'm no conspiracy theorist," he said—but nobody's collecting that information, which is why he started the Fatal Encounters database, which now has more than 4,500 recorded entries of citizens who have been killed or wounded by police nationwide. Burghart said that's a fraction of the real number of police-involved shootings.

In part, he said, there's little market for stories about police-involved shootings in the United States. In Boise, however, it was increased public attention given to police-involved homicides that paved the way for civilian oversight.

'A Different Style of Policing'

Boise's ombudsman position was the product of a growing desire for community oversight of what was increasingly being seen as a police force spinning out of control. In the mid-1990s, several longtime Boise police officers retired and were replaced by officers with law enforcement experience in major metropolitan areas along the West Coast, including Seattle; Portland, Ore.; San Francisco; and Los Angeles. According to Murphy, they brought a "different style of policing to Boise," one that was more aggressive and force oriented, resulting in a culture shift within the BPD.

Tactics used by this new batch of police officers gave the department a reputation among the public and the media for being trigger happy: In the 23-months leading up to the 1999 creation of the Office of the Community Ombudsman, Boise police were involved in seven shootings, including the Sept. 1997 shooting that led to Boise Police Officer Mark Stall being killed in the line of duty. During that 23-month period, several people who were shot by police were unarmed at the time.

"Boise had gone from having one [shooting] once every five years or so and not a history of fatalities, to this cluster in that time period," Murphy said. "There was significant community conversation and angst."

At first, the ombudsman's office consisted of Murphy and a secretary. Another full-time investigator was added in 2000. In 2003, the staff grew to include a deputy ombudsman and a part-time investigator. Murphy said in his 14 years as ombudsman, he saw a downward trend in the number of police-involved shootings and complaints lodged against the BPD through his office. In 1999, the ombudsman's annual report to Boise City Council showed that Murphy's office handled 45 allegations and inquiries regarding the BPD, including 10 alleged instances of use of force. In 2005, he logged 210 commendations, complaints and inquiries, as well as eight critical incidents in which officers or suspects were injured or force was used in a police interaction (those included three shootings and one incident involving a Taser stun gun). In 2010, there were 29 use-of-force allegations made against the BPD—only one was sustained.

In 2012, when Murphy presented his last annual report to the Boise City Council, his office handled 13 complaints and four critical incidents. He credited two new police chiefs—Don Pierce (2000-04) and Mike Masterson (2004-15)—with transforming the BPD by recruiting people without prior background in law enforcement and expanding the department's diversity.

"Masterson made a lot of changes to both the training of new officers to be more in line with the concept of police as a public service, and to reflect the values of the needs of the community," Murphy said.

Personnel changes and a shift in philosophy didn't immunize BPD against controversy or conflict with the ombudsman, however. In December 2004, a Boise police officer shot and killed 16-year-old Matthew Jones when Jones advanced on the officer with a bayonet-equipped Japanese WWII-era rifle. The shooting was widely reported in the media, raising questions about how the incident had been handled. In a 60-page report issued in July 2006, Murphy took issue with how evidence was collected and handled in the post-incident investigation, implying that some evidence had been collected "in order to defend the officer's actions either in the public eye or in the event of a third-party investigation." Then-BPD Chief Masterson fired back against the implication that members of his department and CITF investigators may have behaved unethically or unprofessionally.

"This is unwarranted speculation on the part of the ombudsman. There is simply no evidence to support his personal conjecture and I question his reasons for resorting to such speculation," Masterson wrote in a response issued to the Boise City Council.

The Jones Report is an anomaly in the mostly collegial relationship between the ombudsman's office and the BPD. Of the hundreds of reports investigated by Murphy over the years, comparatively few of the allegations were sustained against BPD officers. Between 1999 when the ombudsman's office was created and the release of its 2010 annual report, there were 905 allegations leveled against Boise law enforcement officers ranging from abuse of authority to unnecessary use of force to rudeness. Murphy reported that 741 of those allegations were unfounded or not sustained, while 130 of them yielded evidence of fault on the part of the officer.

The Jones Report further serves as an example of the many hats an ombudsman must wear to perform the job effectively. It contains detailed analyses of crime scene evidence, radio logs, witness statements, forensic data and legal arguments. Murphy and his team logged hundreds of hours compiling, collating and examining piles of information. As significant as critical incidents are, Murphy said the ombudsman is most effective when the staff can conduct investigations, like those into Jones' death, while being able to perform the other duties of the office.

"I think they need to find a replacement for me. Dunne is just a placeholder. The urgency I have is that as good a job as Dennis has done, he doesn't have the time to focus on building up the capability of the office or engage in ongoing education or training for himself, working on prospective policy work, community relations. All that is laying fallow, going on 20 months," Murphy said.

Baker told BW she felt that urgency among some executive-level City Hall employees, too, and hoped that Bieter shared their commitment to civilian oversight of the police.

"I think there are people on the executive staff who are very committed to this position. For other people, it's not a priority whatsoever," she said. "I looked the mayor in the eye and I asked him, and he assured me it was an important position."