Portland Copwatch Analyzes Compliance Officer Report on US DOJ Agreement February 2022

To: Compliance Officer/Community Liaison
US Department of Justice
cc: Hon. Judge Michael Simon
City of Portland
AMA Coalition for Justice and Police Reform and other community organizations
News media

COMPLIANCE REPORT: LITTLE PROGRESS IN FIXING 2020 PORTLAND POLICE OVER-USE OF FORCE
an analysis by Portland Copwatch, February 16, 2022

The basic takeaway from the Quarter 3 Compliance Officer/Community Liaison (COCL) Report on the City's progress in returning to the requirements of the US Department of Justice (DOJ) Settlement Agreement:*-1 Not a lot of progress was made from July-September 2021. In fact, only one of 19 paragraphs found out of compliance was given the green light by COCL, and Portland Copwatch (PCW) argues they are being too generous by saying the Portland Police Bureau (PPB) did a good job presenting their Annual Report to the public. The bulk majority of the other issues revolve around the lack of reporting, investigation, and the shocking 6000+ uses of force during the racial justice protests of 2020. Since so much of the report is a retread of some of the same old problems, PCW's analysis this time is shorter and less in-depth than usual.

One of the most significant pieces of information about the Bureau's seeming indifference to harms done during the protests arose in September, during the period of review-- a slide deck showing negative attitudes against people involved in protests, presumably used in a 2018 training. At a town hall in January, the COCL said they would later address this training powerpoint presentation. It was not included in the original report because the City opted not to share it with the DOJ or Compliance Officer, nor, for that matter, with Judge Michael Simon, who oversees the lawsuit and held a status hearing in December about progress on the Agreement. The fact that the City withheld information about such a clear deviation from their supposed work toward de-escalation, equity and building community trust nine years into the process is disappointing enough. The fact that the COCL and DOJ have given the community assurances that they have been reviewing training materials all this time and signing off on them, but never saw the crowd control slides, is a whole other sense of betrayal.

Here are some of the items that stood out in the new report:

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FORCE: Uptick in Deadly Force, Taser Use on Unarmed People In Crisis

--Overall, use of force went up between 2020 and 2021, but that's in part because there was a large drop in 2020 due to the pandemic and protests (where force is counted separately), so force is returning to earlier levels. That said, it does seem that "normal" levels should still be scrutinized.

--After years of separating out the force used at protests from other uses of force, the COCL has started reviewing sample protest incidents among its cases (p. 14). This is long overdue to integrate all types of force together.

--One data point of interest is there was an average of 1.66 uses of force per officer per subject in Q3 (p. 19), which seems high, though it is slightly lower than the 1.75 applications per cop in Q2.

--In what seems to be a recurring process, the COCL found a force report that included photos of abrasions on the community member's arm which did not prompt investigation as the case made its way up the chain of command (p. 15). Though an investigation ensued, this leads again to the question of whether the PPB will ever be capable of investigating themselves once the DOJ and COCL process ends. It's not clear if this is the same case mentioned on p. 56, where the COCL notes that supervisors had a refresher training in 2018 about the need to look into cases where injuries are reported, for example. Given the musical chairs situation among higher ranks in the Bureau, could it be that not a lot of people reviewing reports had that training?

--The COCL notes but does not explain why Category II force, second most serious besides deadly force, is used in 16% of cases against people in mental health crisis but only 11% in cases overall (p. 21). In Q2 this number went from 10% to 15% for people in mental health crisis, a main focus of the Settlement Agreement.

--In the Q2 Report, the COCL said that "only" eight of 41 people with mental illness zapped by Tasers were unarmed (20%); in Q3 that was 14 of 64 people (23%), still described as "only" (p. 23). This means nearly 1/4 of people subjected to 10,000 volts of electricity did not have weapons and needed clinical help, not electroshock torture. Side note: The Q3 Bureau Use of Force report shows CEWs (Tasers) were used a total of 18 times (far less than 64) on 13 people, nine of whom were listed as "transient" and two as in mental health crisis (there could be overlap, but the reports aren't clear about that).*-2

--Charts showing the relative rates of use of Category II, III (next lower) and IV (lowest) Force (p. 22) do not include Category 1. While years where there are 2-4 uses of deadly force may not register on the charts, the fact that PPB used deadly force eight times in 2021 should be significant enough to add to these data. This is particularly important because cumulatively, 55% of deadly force recipients are people in mental health crisis.

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TRAINING: Cops with Free Rein to Brutalize Feel Disrespected

--In the context of training, the PPB doesn't plan to audit the trends found during the protests (p. 6). At the Town Hall, the COCL said a Request for Proposal (RFP) was sent out to hire a consultant to conduct the assessment; there was no mention of whether any community members, including the Portland Committee on Community Engaged Policing (PCCEP), were asked to review the RFP before it was posted.

--Without a full assessment of what happened, the Bureau conducted training for crowd control anyway without making any revisions to policy. However, they did focus more on the difference between "active aggression" which can, by police rules, be responded to with force, and "passive resistance" such as walking away slowly when told to disperse.

---There were discussions that restrictions on use of weapons in crowd situations are confusing. This was in part prompted by an Oregon statute passed in 2021 (HB 2928) limiting the use of such weapons. The City attorney and Chief said to avoid criminal charges, officers should not use these weapons at all (p. 33). Side note: as PCW is writing this analysis, the City is going to the legislature to try gutting the law, which was a hard-won victory for people improperly subjected to force at the 2020 protests.

---Officers reported that they felt their "hands were tied" due to these and other restrictions (p. 30). Given the free ways they used their hands to launch weapons, smack people with batons and more, this is clearly not the case. They also felt they were being "delegitimized" and had no support (p. 31). Considering how few have been held accountable in any way for the many uses of force, while the City has paid out over $150,000 so far just for the 2020 protests, the cops should feel lucky that someone else foots the bill for their behavior.

---Chief Lovell made a video for the crowd control training apologizing for how people were treated during the protests... no, not community members, but the police (p. 29).

--Perhaps this reference appeared in previous COCL Reports, but on p. 24 Homeland Security is listed as one agency informing the PPB's training, which seems strange.

--Since late 2020, the Bureau has been promising to hand out cards about the right to refuse a consent search during a traffic stop. The new Report says that the language was finalized in Q3 and that training was then being developed (p. 70). In the meantime, how many people have consented to searches because this project took so long to roll out?

--Only 10-20% of officers are filling out surveys about training, but the Bureau is still getting a passing grade for the feedback loop (p. 36).

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MENTAL HEALTH: Minimize, Don't Lock In, Input from Cops on Non-Police Responders

--The Behavioral Health Unit Advisory Committee (BHUAC) got around to reviewing policies for the relatively new Portland Street Response (PSR) program, which teams firefighters with mental health experts to avoid police interactions with people who may be in crisis. In Q2, the BHUAC delayed the discussion as they did not make quorum for the meeting. The new Report says they were going to meet again in early 2022 to discuss PSR. At the Town Hall, the COCL suggested that the BHUAC, which is advisory to the Police Bureau, should become a community advisory body for PSR. This is a terrible idea from a structural view, since the whole point is to create a program that's not under the umbrella of the police. Maybe some of the same people can be involved, but police input should be minimal.

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CRISIS INTERVENTION AND EMPLOYEE INFORMATION SYSTEM: Mixed Bag of Advice

--The Compliance Officer has in the past encouraged the PPB to add more thresholds to their Employee Information System (EIS) to determine if officers need intervention for certain behavioral patterns. Now they are encouraging the Bureau to ignore some patterns established by the Agreement, excusing officers who use a lot of force against "disorderly conduct" in the entertainment district (p. 49). Just because they are faced with unruly crowds doesn't mean their potential over-use of force should go unexamined.

--In a related issue, the COCL says the Bureau can get back into compliance for the EIS section of the Agreement if they enter full and accurate data from the 2020 protests. We hope that won't be rendered moot by thresholds that have to do with multiple uses of force over a 30 day to six month period, since the data will be getting entered two years or more after the fact.

--There were plans to re-evaluate the use of the EIS in early 2022, but there is no mention of community input into that process (p. 49).

--The Force Inspector did not find it noteworthy that one officer (of about 800 on active duty) was responsible for 2.3% of 475 uses of force in one quarter, saying it was not a trend. The COCL wisely disagreed with that assessment (p. 50).

--The COCL continues to marvel at the percentages of people put into housing through the PPB's Service Coordination Team, expressing excitement that the rate went up to 81% from 79%. (p. 46). However that slight rise is definitely not statistically significant when talking about only 16 people total.

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OVERSIGHT: COCL Insight Only Goes So Far

A) Police Review Board

--While the City remains out of compliance for failing to complete misconduct investigations in under 180 days (paragraph 121), the COCL highlights issues with the Police Review Board (PRB) process:

---The PRB, made up of 5-7 people who review deadly force cases and cases which might lead to discipline of time off without pay or more, hasn't been used to scrutinize supervisors who investigated force yet signed off on subpar reporting by officers (pp. 9-10).

---The Board has also used incorrect standards, such as saying the actions of a crowd justified the use of force against an individual. Essentially this means the PRB was not deciding whether officers violated policies but whether there were "mitigating circumstances" for their doing so (p. 58). While mitigation is allowed to lower the proposed level of discipline, the COCL points out, it is not there to excuse the violation itself.

--When the PRB considers certain serious cases, one member of the Citizen Review Committee (CRC) is included on the Board. The COCL indicates they believe CRC members do not understand the "Graham Standard," the court ruling that guides officer use of force (p. 59). For some reason, the COCL's proposed remedy is to send CRC members out on "walk-alongs" with officers, since the requirement to do ridealongs was suspended in Q2 2021 (see our analysis of the Q2 report*-3). This does not seem an appropriate place to learn the details of legal nuances. Note: the reference to the CRC's need for more training on p. 10 of the Report makes it sound as if this issue is tied to the PRB's not using appropriate standards.

B) Force investigations

--During one of the investigations into an officer involved shooting, a witness cop was relieved of the requirement to give an on scene statement because they were experiencing severe emotional trauma (p. 10). The COCL points out there is no provision for this in the Directives, but suggests the Bureau create such a policy. PCW strongly suggests a metric to measure whether the trauma is real or is being used to delay the important immediate interview required by policy.

C) Civilian oversight

--The discussion of the work of the Citizen Review Committee once again does not reference the case of former PPB Sgt Liana Reyna, which CRC sent back for more investigation in October 2020. The "Independent" Police Review (IPR) returned the case in August 2021 after 10 months, far longer than the 10 days required by the Agreement. Perhaps this case will show up in the Q4 COCL Report, though it was only mentioned in a brief discussion in October, a year after the first hearing, with the IPR Director saying the new investigation turned up no new evidence. CRC did not, as required by their protocols, hold a supplemental hearing to discuss the finding in question.

--After years of PCW reminding the COCL that in addition to IPR, police Internal Affairs (IA) and the Assistant Chief supervising the involved officer can also "controvert" a proposed finding, that is finally spelled out clearly in the new Report. In fact, p. 59 includes a longer explanation which also notes that IPR or IA can also return a case for more investigation, which, COCL says, the Assistant Chief can also do after the finding is proposed.

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COMMUNITY ENGAGEMENT: Poor Presentations Praised, Pedestrian Stops Ignored

--The one area where COCL removed their "partial compliance" rating was on the delivery of the Police Bureau's Annual Report (paragraph 150). While it is true that the PPB presented in all three precincts this year (unlike in 2020), and that the Chief was part of the presentation both in the Precincts and at City Council, the publicity for the public meetings was mediocre at best. Moreover, the Council hearing was held after the first Precinct meeting, meaning that the PPB was not able to relay to Council the concerns from all the community members attending the smaller meetings. To their credit, the COCL asks that the City EITHER wait until after the Precinct meetings to hold the Council meeting, OR allow public input at Council, noting that neither is required by the Agreement (p. 75). PCW thinks BOTH the timeline and public input should be instituted. In fact, PCW helped get Council to change its policy so now public input is welcome on all reports. Thus, the 2021 Report, due out later this year, should include at least public input at Council.

---The Report says the forums were promoted in a "variety of outlets" but gives no examples; PCW only learned about them by reading the City Council Agenda five days before the Chief's presentation, then discovering they had been sent deeply buried in an email the PCCEP staff sent out 13 days before the first Forum.

--The dwindling membership of the Portland Committee on Community Engaged Policing is addressed briefly, with a note that two PCCEP members resigned in Q3 citing "personal obligations and time constraints" (p. 66). At the last meeting, only seven current members attended and it seems the Committee is far short of the full contingent of 13 people.

--The COCL has again found the City out of compliance for poor management of PCCEP public records such as minutes and recordings of meetings. Because the other bodies advising the Bureau are not held to the same standards, there is no negative rating but a repeat chastising of the PPB for not making minutes and agendas of most of those meetings available online. This includes the Coalition of Advisory Groups, which is a round table of the various bodies. The COCL describes the information that IS available as being "hidden" on the website (p. 68). PCW would argue that the people on these boards are ostensibly representing the public and all of the materials should be posted.

--PCW continues to appreciate the COCL's recent focus on the disparities of who gets stopped by police. The COCL noted, for instance, that in East Precinct, 21% of stops are of Black drivers where the Black population of that precinct is just 6% (p. 70). They choose not to focus on pedestrian stops, which account for only 1% of all stops, which ignores that the PPB is reporting that they only make 10 stops of people on foot or on bicycle in a three month period (as they claimed in Q3)-- a highly dubious assertion.

---Another interesting highlight by COCL: East Precinct makes 59% of all stops but only has 37% of Portland's population in it.

--It's not clear why Body Cameras are brought up in the community engagement section, since their primary focus is supposed to be on accountability issues, but here the COCL suggests the PPB acquire software to scan body cam video for "problematic patterns" in the audio and video (p. 74). It's not clear what that means but it sounds like it's something that can be seriously misused if not focused solely on police behavior.

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CHIEF'S MEMO: Like the Human Appendix, Relatively Useless

--An attachment at the end is a memo from Chief Lovell, who simply signed the document "Chuck" as if he were seeking a social engagement with officers rather than ordering them to follow Bureau policies. The memo asks officers to read both crowd and use of force directives. It reminds witness officers they have to give a verbal account of a force incident, which underscores perhaps that they do not necessarily have to put their observations down in writing.

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CONCLUSION

Like many previous Compliance Reports, this one reveals information normally not available to the community, makes some good observations about needed changes to policies and procedures, but falls short of the full critique the PPB deserves.

NOTE: PCW also sent some clarifying points and noted typographical errors to the COCL.

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___Footnotes:

*1- Find the Report at https://www.portlandoregon.gov/pccep/article/796645

*2- https://www.portlandoregon.gov/police/article/797191

*3- https://www.portlandcopwatch.org/COCLanalysisPCW1121.html

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Posted February 16, 2022, last updated February 17, 2022