ANALYSIS: Semi-annual Police Review Board report shows little concern for people with mental illness, reveals "Darren Wilson" cops' fates (January 2016)

January 19, 2016

From: Portland Copwatch

To: Christopher Paille, Police Review Board Coordinator
      Chief Larry O'Dea, Portland Police Bureau

cc: IPR Director Constantin Severe
      Auditor Mary Hull Caballero
      Mayor/Police Commissioner Charlie Hales
      Members of the media
      US Department of Justice and Compliance Officer/Community Liaison
      Portland Copwatch

January 27, 2015

Mr. Paille and Chief O'Dea:

The January 2016 Police Review Board (PRB) report (which posted sometime about January 12 at http://www.portlandoregon.gov/police/article/559871) is worrisome in its coverage of several force/deadly incidents involving persons in mental health crisis. Despite years of talk, training, lawsuits, and federal oversight, there is no mention of how police interact specifically with people in crisis in any of the reports. We are glad, however, to learn that the three officers who posted PPB badges on their Facebook pages with the message "I Am Darren Wilson" were disciplined, albeit one retired and two merely received "command counseling." While we appreciate the information about the final outcomes of each case now being integrated into the PRB facilitators' memos, the quality and depth of both the facilitators' reports and the additional notes varies wildly, to the point where we can't even tell what the circumstances were in the third and final deadly force case. It's also interesting that the PRB called attention to a case where the initial recommended findings were all "Sustained" (officer out of policy), when they changed two of them, but the Chief's several actions to change findings-- and allegations-- gets no analysis because of how the system is structured. This set of reports covers 14 PRB hearings, including the shootings of Christopher Healy (3/22/15), Michael Harrison (5/17/15), and as far as we can tell, David Ellis (7/5/15). All three involved men in apparent mental health crisis, and all three contain minimal information showing the Board questioned any of the police actions. In fact, the only recommendation to come out of the three cases was to include a diagram of the incident scene in the file. The other 11 cases include six "Bureau-only" incidents, though several of those actually involve community members, and five Community complaints.

As we noted in our July 2015 analysis, we still do not understand the Bureau's reluctance to release names of officers which have appeared in the media. We know the officers in the shootings were Thomas Clark (and Royce Curtiss on Taser), Raelynn McKay (and Sgt. Martin Padilla on less-lethal), and Scott Konczal (with no analysis at all of Officer Jose Jiminez's role in the shooting, possibly because he was stabbed by the suspect). The officers who posted to Facebook were Rich Storm, Rob Blanck and Kris Barber (Willamette Week, 11/24/14); records show it is Blanck who retired before receiving discipline. In total, four of the 13 officers facing discipline resigned or retired. (Although if the same officers were under scrutiny for multiple cases, we would not know.) One officer lucked out when Acting Chief Donna Henderson reversed a recommendation for termination and changed it to a 120 hour suspension without pay (in an overtime case, labelled B1 by Portland Copwatch); another was given 120 hours without pay but 40 hours were put "in abeyance," which we didn't know was possible (case B2 involving informants).

While the silliness of redacting the dates, locations, and genders of most of the parties involved still makes us furious and curious, the writing of the report is better in most places when clarifying who's being investigated for what, or who was subjected to police action. One exception is a case in which an attorney filed a complaint on behalf of a client, who was referred to as "client" and "suspect" interchangeably, but because her complaint included a claim that she was pregnant, at least her gender was clear. It's not clear the gender of the officer who resigned before being terminated for having repeated sexual contact with a "vulnerable citizen" over the course of eight months (case C3), but we can pretty much assume it was a male cop, bringing us back to our long-time request for the Bureau to do better gender parity training.

This time around there were a total of 49 allegations, of which 23 were found "Sustained," though the Chief reversed one of those findings in the case we labelled "B2" involving use of an informant engaged in criminal behavior. As in the past,, we note the seemingly high "Sustain rate," 47% this time (significantly lower than the 68% in July), is partly because the PRB is called in whenever a Commander recommends a Sustained finding. Though there were two civilian complaints involving use of force (C4 and C5), the officers were presumably "exonerated" (found in policy) in both incidents (more on this below). All 15 allegations investigated in the three deadly force cases were found "In Policy."* As we've noted time and time again, the policy for all other cases is that if a civilian is involved, it is investigated as a Community complaint, but deadly force cases are labeled "Bureau only."

We still feel that the reports should indicate how cases came to the Board-- due to proposed "Sustained" findings, due to the nature of the case, or based on the "Independent" Police Review Division (IPR) or the Bureau "controverting" a finding.

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FORCE, DEADLY FORCE, AND PEOPLE WITH MENTAL HEALTH ISSUES

The three deadly force incidents clearly involved persons who needed help, albeit all three were armed with knives. Two other force-related incidents involved a woman who was punched in the face and the eye, causing bleeding and bruising (C4) and a person who was subject to a health care check, not an arrest, but was hit in the head by an officer. **

In the first shooting, Healy was having a dispute of some kind with a man who called the police alleging he was trying to break into his house, even though Healy was out in the street when they found him, apparently looking for a bus. The cops say he pulled out a knife and that once they shot him, he dropped the knife but didn't fall over, prompting Curtiss to fire the Taser even though Healy was, at that point, unarmed. The Board applauded the decision to use something less than lethal force since the threat had lowered; our analysis would be that the man had been shot and needed medical attention, not a painful jolt of 50,000 volts of electricity delivered through unbent fishhooks. This was the case where the PRB asked for a diagram of the scene; we're surprised such drawings are not routine in deadly force cases as officers used to be asked to draw such a diagram as part of the interview process. No mention was made that Clark (who shot Healy) and Curtiss were also both involved in the shooting death of Merle Hatch, another man in mental health crisis, in 2013. If we want our officers to improve their response to those in need in our community, and get the US Department of Justice out of town, such analysis is crucial.

In the second shooting case, Harrison had been wandering around a neighborhood, cutting himself, and entered a home acting bizarrely, causing the residents to hide in the basement. He apparently emerged from the house and moved toward officers with the knife, prompting Sgt. Padilla to fire the "beanbag" (lead-pellet pouch) gun. When Harrison kept moving, rather than retreat or consider other tactics, McKay shot and wounded killed him. The similarities between this incident and the death of Jack Collins in 2010 are alarming. Interestingly, the Board called attention to the fact that Sgt. Padilla, who was the on-scene supervisor, had to set aside his role in order to use the "beanbag" gun. The memo states that he was able to "compartmentalize" the roles and followed policy. Our understanding is that there has been an ongoing issue with supervisors stepping into such situations. This memo includes a stray pronoun, showing that officer #4 was a male, who came back to the neighborhood to "put [the neighbors'] minds at rest." But if there hadn't been a full investigation, shouldn't the officer (presumably a supervisor) have waited to get all the facts before telling the people what happened? And if any of them were witnesses, couldn't his description have muddied their testimony? Curious, then, that the PRB praised officer #4.

It should be noted here that the facilitator's memo in the Harrison case used such generic language (that the officers "reasonably believe[d there was] an imminent threat of death or serious injury"), that it took a while to sort out which incident was being discussed. The third case, which we assume is the shooting of David Ellis, was even more vague, with the only detail given other than the year was that the officer who fired his weapon believed the suspect was going to kill his partner. It's absolutely maddening that the officer's partner, then, wasn't scrutinized for his role in what happened. If this is indeed the Ellis case, it was Officer Jose Jiminez, who tripped and fell over while walking backward from Ellis, then was stabbed through his hand as Ellis got on top of him. PPB rules prohibit officers from putting themselves into a position where they then end up using deadly force. Had the board looked at the case more carefully and recalled the death of Nick Davis in 2014, they would have noticed that Officer Robert Brown tripped and fell in that case before shooting and killing Davis. Perhaps even if Jiminez couldn't be blamed for precipitating Ellis' shooting (he was wounded and survived), at least the Board could make a recommendation about training and/or policy for officers walking backward. Ellis had allegedly been trying to break into a police substation, but the description of the overall incident implies that he was not thinking rationally when he attacked the officer, and he too needed help, not bullets. Though he lived, Ellis is not allowed by policy to address the board about his perspective on the incident.

Case C4 about the woman arrested on drug charges includes a lot more detail than usual, and we are thankful for that. Amazingly, even though the officer admits he told her "you're being recorded, so don't act like an idiot," the Board recommended an "Exonerated with debriefing" finding on a 5-2 vote on a Courtesy violation. Since we don't know whether the two votes to "Sustain" the complaint were the Community members (one from the Citizen Review Committee and one from the Police Review Board pool), officers, or the IPR staff, it's hard to know how to resolve such anomalies in the future. When the evidence includes the officer admitting to a Courtesy violation like this, the finding should be "Sustained." That said, it's good the PRB noted the officer's language escalated, rather than de- escalated the situation. The woman then allegedly bit the officer's finger, and the cop hit her in the mouth and nose-- causing her to bleed, then in the eye. She refused to get on the ground because, she told him, she was pregnant. Though three members of the board wondered whether the second punch was in policy or not, four members voted to "Exonerate" the cop again on this issue, and debrief the action as the officer could have acted differently. Actually, there were three other suggested outcomes-- "Exonerated" with no debriefing, "Not Sustained" (insufficient evidence) and "Not Sustained with a debriefing." The Chief's final decision is unclear as the annotation merely states there was no discipline in this case. This woman's supposed connection to meth (the memo says she smashed a meth pipe when the officer approached) means she should have been engaged by the Behavioral Health Unit Crisis Intervention Officers, who may have de-escalated the situation.

The final force case (which we call C5) grew out of a medical welfare check for a person who apparently kicked an EMT in the head. The officer then punched the person in the head and held their head down forcibly. For some reason, even though seven people are supposed to hear Use of Force cases, only five voted on this one. Four "Exonerated" the cop. One wanted to "Sustain" the complaint, since the person was not under arrest, and the officer escalated the situation by using force. A separate question on whether the force was a reasonable way to "manage the confrontation" (under Directive 315.30, Satisfactory Performance) was found "Not Sustained with a debriefing" on a 5-0 vote. The officer was, however, found out of policy for not reporting the use of force immediately, as is required under the Directives; it sounds as if the report was made when the person got to the hospital, meaning that a Sergeant would not be able to respond to the scene and conduct a "940 Investigation." The officer received command counseling for this error in judgment, which the PRB said was "out of the scope of [the officer's] responsibility." Incredibly confusing in this case, the PRB asked that in the future, the "fact finder" and the officer's RU manager be able to hash out differences before the Board votes. What's not clear is why the RU manager and the fact finder are not one and the same person, as is usually the case in misconduct investigations. It gives us some hope if this is true, as we continue to feel it is inappropriate for a supervisor to be voting on whether or not to agree with his or her original finding. It also is not clear why the Board chose to reverse the fact finder's proposed "Sustained" findings about the Force and Performance allegations.

Note: Two of the three deadly force cases were reported on two-page memos, while the other (Healy) was one of the longer reports at 4 pages. The two force cases were each three pages. Considering the severity of the use of deadly force, the loss of life and the community interest, these reports should reflect more details.

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MOST COMPLAINTS INVOLVE CIVILIANS BUT ARE CONSIDERED "BUREAU ONLY"

In addition to the three community complaints we outline in this section, there were the two force incidents, three shootings and two other cases labelled "B" (Bureau only) which involved civilians, meaning a total of 10 of the 14 cases should have been labelled "C." In other words, the report shows 9 "B" and 5 "C" cases but should show 10 "C"s and 4 "B"s. We will address those two (B2 and B3) along with the other Bureau cases, though we still wonder how the determination is made to remove community members' ability to appeal findings in some of these incidents. We addressed cases C4 and C5 above, here are the other three labelled "C":

C1: The ex-spouse of an officer said the officer transported their children in a police car in an unsafe manner (found "Unproven," the old term for "Not Sustained"), told people the ex-spouse was "discredited" in the eyes of the Bureau ("Exonerated with a debriefing"), and made a false statement on an affidavit. This third allegation was "Sustained," but the Chief changed the allegation from being untruthful (and automatic termination, usually) to a "Conduct" allegation for making a false statement-- even though the Board found the officer "carelessly and recklessly filed a false affidavit." The officer was also accused by the ex-spouse of paying for sex after a massage in Thailand in 2009 (!), thus bringing discredit on the Bureau. The PRB found there wasn't enough information to prove or disprove the claim.

C2: A security guard initially wanted to file an online police report about a former employee confronting staff, but found because there was a weapon involved an officer had to be called to the scene. The officer was found to have been rude (saying something like "if [the person] didn't threaten to kill you, this ain't shit"), failing to act on the apparently criminal situation, and failing to report the incident beyond logging it in the computer. Four Board members wanted 40 hours suspension, with one calling for 80 hours because of a "pattern of behavior." Somehow the final discipline was 30 hours suspension, which we did not know was an option. There is no explanation why the Chief lowered the punishment, especially since the Board recommended a "holistic review" of the officer's history.

C3: This is the case in which the officer went back for eight months after contacting a "vulnerable citizen" on a call and engaged in sex, even giving money to the person. The investigation turned up evidence of both the sex and the money. The officer also was found to have been untruthful when saying he/she was on the way to get a statement but instead stopped at the complainant's hotel. Though many of the circumstances are similar to a single incident reported in the Oregonian (7/22/15) involving Officer Jeromie Palaoro and a woman from Las Vegas who says he forced her to have sex with him at gunpoint, (a) that incident was one time only and happened in July, 2015; (b) the Review Board held on case C3 happened in June 2015; and (c) the officer in case C3 resigned. Thus, it's hard to say if there is any direct connection. Even if it was the same cop and the same or two different women, we still urge the Bureau to train about sexism and power dynamics with the same energy they are putting into race and mental health issues.

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BUREAU CASES: CHILD ABUSE MESSUP, TASER MISFIRE, TWO TIMECARDS, INFORMANTS, AND RACIST FACEBOOK

B4: The officer in this case, responding to a mother's complaint that her boyfriend may have sexually abused her two children, was found out of policy for participating in the interview of a child under the age of 10, and for taking evidentiary photos of the children-- which is against policy. The officer resigned before discipline could be imposed, with the Board recommending either 80 hours suspension without pay (3 votes) or termination (2 votes).
There was also an allegation the officer did not call the Department of Human Services to report the incident, but the facilitator's memo says the call was made. Thus, it's confusing that the board proposed a "Not Sustained" finding, meaning there wasn't enough information to prove or disprove that the officer called. The officer also was accused of searching the mother's iPad without a warrant, and though the Board suggested the officer's supervisor should have been contacted there was no debfriefing proposed attached to the "Exonerated" finding. (This is the more serious of the two cases that involves community members who should have been able to appeal any unsustained findings.)

B5: "Hey, get your fishhooks out of my floor!" A supervisor testing a Taser in another officer's office accidentally sent the weapon's probes flying when checking the stun-gun's operability. This supervisor did not alert the next up in the chain of command about the "negligent discharge," which is against policy, only fessing up when asked about the incident four days later. This was the supervisor's second violation in two years, and the PRB sought two days (16 hours) suspension. The Supervisor retired before that could happen.

B1: This case involved an officer who was released by the District Attorney on a court case, but collected for overtime anyway. The cop had a past history, gave inconsistent explanations for the falsified timecard, showed no remorse and the PRB questioned his/her ability to keep being an officer. However, A/C Henderson rejected their 4-1 vote for Termination and instead applied 120 hours suspension (less than the 180 proposed by the lone dissenter), saying there was no way to prove the gouging of taxpayer money was intentional.

B6: Another officer messing with timecards claimed a full overtime shift working security, but actually had showed up 45 minutes late. The officer admitted this in the investigation. The board proposed "Sustained" allegations about failing to show up for duty and inaccurately reporting hours. The could not prove whether the officer intentionally lied, so only recommended 1 day suspension without pay, to which the Chief agreed.

B2: This is the case with the informant who allegedly committed crimes; the officer was told to stop contacting the informant but continued to do so. The informant allegedly committed an act of domestic violence and used weapons, and had, just prior to being engaged as an informant, been found with narcotics and suspicious cash. There are two case numbers listed here, so it's not clear how much overlap there is. What we can suss out is that the officer didn't report the domestic violence allegation, in violation of three policies: on informants (660.33), on Domestic Violence (825.00) and on Satisfactory Performance (315.30, added by the Chief after the PRB hearing). The officer was also found out of policy for disobeying an order after the criminal conduct was discovered, and continuing to contact the informant (who had the cop's new cell number in his/her phone to prove it), failing to report the seizure of the narcotics and cash for 18 days, and not searching the informant before sending him/her into a drug buy. The Board had another allegation about failing to take action on Domestic Violence but the officer thought it had been resolved between March and July of 2014, so it was found "Not Sustained." Confusingly, the Chief also overturned a Sustained finding about the officer knowingly being willing to send the informant into a drug buy in September after knowing of criminal allegations. Perhaps these were two different informants, but it is so hard to tell. In any case, as noted above, this cop was supposed to get three weeks off without pay but was given one week "in abeyance." Side note: the PRB asked that the Bureau change the Informants Directive (which PCW refused to comment on as the practice is distasteful) saying that questionable activity "shall" be documented, rather than "should be," and to clarify in the Domestic Violence Directive when officers have to report domestic violence.

B3: Former Chief Mike Reese made headlines when he ordered the officers who posted on their Facebook pages re- decorated PPB badges pledging support to the man who shot and killed Missouri teen Michael Brown ("I am Darren Wilson"). The reasons the Board Sustained allegations of violating the Bureau's code of Conduct (Directive 310.00) included that the posts "undermined preparations for a planned protest." This gives a strange (false) impression that the Bureau was working with the community to plan the protests, but likely means that officers staffing those protests were put at risk because of the racist ideology of these three cops who felt supporting their fellow "man in blue" outweighed community concerns that an unarmed African American teen was shot to death in the street. (Nothing is said about the numerous officers who "liked" those Facebook pages, including Officer Betsy Hornstein, who punched and kicked an unarmed African American teen in Portland at about the same time the posts appeared.) As noted above, Officer Blanck retired and the other two officers received command counseling. Apparently the discipline could have been more serious but the Bureau (a) never copyrighted its badge, so it is open for anyone to use, and (b) the officers were apparently "ignorant" of how widely their Facebook pages would be seen. Our response: (a) it should be clear regardless of copyright that officers can't use the badge for their personal disputes, noted in Directive 313.00, and (b) really? Perhaps the facilitator didn't capture the conversation accurately, but the notes reflect that the Board agreed there was no First Amendment right because of the "public concern." It really is about Bureau employees misusing the badge, not a First Amendment issue. Final note on this whole case: it's good to know that Officer Blanck had been recommended for time off, rather than command counseling, because of pervious violations of policy.

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STILL NEED MORE INFORMATION

Once again, the PRB's semi-annual reports could benefit from consistently including:

--the date of the incident in question (included only in a few cases other than the deadly force cases);

--whether a complaint was generated internally, by a community member, or from another City agency
    (and whether it came to the Review Board because of a proposed "Sustained" finding, a "controverted"
    finding, or because the type of case triggers an automatic review);

--the number of voting members and number of votes (it seems some facilitators are better than others
    at using the vote count rather than stating "unanimous");

--which opinions were from officers, civilians, IPR staff, or Bureau management;

--the gender of all persons involved;

--the names of officers, particularly in cases which have already been reported in the media;

--more thorough background summaries for all cases, especially in deadly force cases.

As in the past several reports, all of the dates the Review Boards were held were listed.

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CONCLUSION

We continue to appreciate being given information about what is going on behind closed doors with those sworn to "protect and serve" our community. However, we still feel as though there should be far more information available to the public, perhaps by allowing the media into PRB hearings with instructions on what information is confidential.

We repeat here our concern that the many recommendations from the PRB are noted as being passed on to various parts of the Bureau, but there is no chart in the report showing the status of previous and current suggestions.

There also should be a roster of civilian Police Review Board members attached to the reports since they are supposed to be representing the community at these meetings. Those Board members should also hold annual or semi-annual meetings with the public.

Last time, Portland Copwatch scooped the mainstream media on reviewing the PRB Report because the Public Information Officer does not put out a news release to announce its publication. It looks as if this may happen again, as we have January and July flagged to keep checking the website. We should not have to do so. These are important reports and the public should be informed about their existence.

Thank you,
dan handelman
--Portland Copwatch

PS We noticed that the title of the report was changed (finally) to "Police Review Board." Thank you for your attention to this detail.

FOOTNOTES:

* We still do not understand why there are different findings in deadly force cases than in other misconduct inquiries. After all, it is possible to find insufficient evidence to prove or disprove policy violations, but the Board's only choices are "In Policy" and "Out of Policy." Reviewing these cases separately denies a person who is shot and lives, or a deceased suspect's survivors, the ability to appeal the findings.
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** This sentence was rewritten 1/21/16 to correct conflation of the two force cases.
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Posted January 19, 2016, updated January 20 and 21, 2016