Dec. 2022 Police Review Board Report: Five Officers OK'd in Shootings, Two Used Excessive Force at Protests
Table of contents
To: Christopher Paille, Police Review Board Coordinator
Second 2022 Police Review Board Report OK's Five Shootings The second Police Review Board (PRB) Report of 2022 was released quietly on December 20.*-1 It covers five shootings which were all found in policy by the majority- cop Board, two cases where officers were found out of policy for force against protestors, and the incident where former Police Association President Brian Hunzeker spread false information about Commissioner Jo Ann Hardesty. A third protest case sent to the Chief saw him override a "Not Sustained" finding around performance, but then agreeing not to fault the same officer for use of force. The Board did express concern about how long it took for the police to get medical aid to Robert Delgado, who was shot in April 2021, but found no wrongdoing. The PRB blamed the delay on the fact the officers used a "less lethal tool" (weapon) to shoot the dying man because they had no ballistic shield on site. No mention was made of Delgado's being in mental health crisis or how that relates to the US Dept. of Justice Agreement; this was also true in three other cases where mental health was clearly an issue. A tenth incident in which a person took their own life while boxed-in by police also led to no discipline. Overall out of 33 possible violations, the board found only six violations against five out of 37 officers under review. Even though City Code allows the Bureau to publish the names of those involved in cases where those names appeared in the media, the PRB Reports continue to lack such details. In fact, the only person whose name appears in any of the 10 incident summaries is that of Commissioner Hardesty. Portland Copwatch (PCW) has in the past created its own numbering system based on the Bureau's labels of "Bureau-only" and "Community" cases. Following a court decision earlier this year,*-2 the City decided to go back and redact the case numbers, and now all cases are labeled sequentially; we use the Bureau's numbers here. All of the cases involved harm done to community members, whether physical or political. The PRB is made up of five members in cases mostly focusing on recommending discipline (Assistant Chief, Officer's Supervisor, peer officer, staff from Independent Police Review (IPR), and a community member), with two more added for serious cases such as deadly force (a second peer officer and a member of the Citizen Review Committee). The Board made seventeen recommendations, of which the Bureau accepted 14 and "declined" three. DEADLY FORCE: SOME CASES GET MORE SCRUTINY THAN OTHERS Notably of the six deadly force cases (the box-in case was considered a death in custody), beyond the involved officers, there was a wide variety of how many supervisors showed up to manage the crime scenes. Three had either four or five such officers under review-- the death of Michael Townsend (#5) and the woundings of Darren Carr (#7) and Joshua Merritt (#10). Only one supervisor was investigated for following up when Zachary Delong killed Delgado (#8). Two were reviewed in the boxing-in case, where Tai Anh Tran took his own life (#9), and three in the shooting where Officer Jennifer Pierce took a potshot at David Dahlen as he drove away after hitting her with his vehicle (#6). #5: Michael Townsend Calls Police for Help, Gets Killed Townsend had called the police because he was feeling suicidal in June, 2021. Officers and other first responders arrived and talked to him for a short while. He apparently moved at them with a tool similar to a screwdriver. The Report only focuses on the police point of view. The Review Board said the subject displayed "active aggression" with a "sharp tool" saying he wanted to harm the responders. They described having multiple officers on-scene as "de-escalation," which is highly debatable since a person feeling threatened by one officer likely feels multiply at risk with many cops present. Officer Curtis Brown backed up ("backpedaled" in the Board's description) but then they said there was no other way to protect himself other than to shoot Townsend. PCW has visited the site, which is a motel parking lot that is open on two sides; the officer could easily have gotten out of harm's way without killing a person in mental health crisis. Notably, community members showed up on the scene shortly after the shooting and began to protest. The "challenging" nature of the protest is mentioned in the reviews of the five officers who were managing the scene. We should note here that the PPB reviews of post-shooting procedures use Directive 640.10 Crime Scene Procedures, and that homicide detectives investigate officers who shoot. However, as has been noted many times, the only officer to be indicted for a shooting in the last 50 years took his own life before being prosecuted. The recommendations that came from the Board addressed when there were "riotous members of the public" at a crime scene; first to examine how they can organize their staffing to address "resource-intensive events," and second to do better training around managing protests. They say that "members are uncertain what force options, tools and tactics are available, lawful and within policy" to address protests. The Bureau accepted both recommendations. #8 Robert Delgado Shot by Less Lethal and Lethal Rounds Someone in Lents Park called police because Delgado was "playing cowboy" with a toy gun that had an orange tip on it. Officer Delong and Officer Samantha Wutruch took cover behind a tree, so far away they could not see it was a toy. Wutruch had a 40mm "Less Lethal" weapon and fired pretty much simultaneously with Delong, who had an AR-15 rifle. The Board found both officers within policy because Delgado was showing "active aggression" and took a "shooter's stance." They "believed" Delong and Wutruch used de-escalation by giving warnings (which seems more like a threat), and talking from a distance "in order to convince the suspect to surrender." Citing the fact that there were pedestrians and cyclists in the park, the Board said Delong had "no other option" than to shoot. They also said Wutruch had to use the Less Lethal weapon because moving closer to use a Taser (which has a 21 foot reach, mind you) was not "reasonable." A third officer used another Less Lethal weapon to shoot at Delgado's wounded body ("downed suspect") to be sure he was not a threat before medical aid was called in. They found this a reasonable alternative in absence of a ballistic shield. They note here with a shrug that it does "not look good when the public witnesses an officer shoot a at a downed suspect." Despite both the magnitude of having killed someone and the fact that protestors allegedly began throwing objects at officers, as noted above only one supervisor ("Employee 4") was reviewed for their supervision and post-shooting actions. They noted that the ambulance took longer than expected to arrive on scene, with one member saying it was a "tragedy" that it took so long for medical aid to be rendered because there was no shield, but that was not the fault of the supervisor. The PRB made three recommendations, once again having nothing to do with avoiding killing people in mental health crisis. They were: to know whether a shield is in an on-scene vehicle, to fix the post-deadly force policy so if a supervisor does not obtain certain information they won't be found in violation, and to make sure more shields are available. It's also worth mentioning here that the votes finding the two involved officers in policy were 7-0, but only six people voted on the officer who shot the wounded Delgado and the two areas of review for the supervisor. Were those people voting members of the PRB? We hope not as that would pose a serious conflict of interest. #6 David Dahlen Drives Into Officer, Then Flees Portland Police Bureau policy is pretty clear when it comes to shooting at moving vehicles. Directive 1010.00 Section 9.4.3.1 states that "Members shall not shoot at or from a moving vehicle unless they reasonably believe an immediate threat of death or serious physical injury exists." News reports had stated that Officer Pierce shot at Dahlen's vehicle in December 2020 as he was driving away, _after_ he injured her, and, in other words, after the threat was over. The PRB describes Pierce as being pinned between her car and Dahlen's, but there is not enough information to say whether she fired while he was still posing a threat. It seems more as if the Board did not want to criticize the officer because of her injuries. One reason not to shoot at a moving car: it can become a danger to others if the driver becomes incapacitated. This happened in 2012 when police shot Billy Wayne Simms as he drove from a gas station lot and the shooting caused his car to crash into a nearby residence. Three officers reviewed as supervisors all received praise from the Board, which referred to it as a "chaotic scene." There is no explanation why there would be "chaos" once the suspect had driven away. Interestingly, yet another officer was investigated for pulling in behind Dahlen when Pierce's vehicle was in front of it. The box-in technique is considered a use of force. However, the narrative makes it clear that Pierce was not attempting a box-in (which may explain how she came to be between her vehicle and Dahlen's) and there was no communication that was her intent. Yet, both officers were found in policy unanimously. The Board also commented that boxing in a person's car can be seen as a form of de-escalation; PCW continues to believe the Bureau needs to make clear what "de- escalation" means. The Board made one recommendation about making sure there is a checklist for acting Sergeants (one of the supervisors on-scene was a regular officer acting in this capacity) so they know what resources are available at "chaotic" scenes. As with the Delgado case, the votes were 7-0 for the officers who used force but there were only six votes about the supervisors. #7 Darren Carr Shot in Vehicle, Drives Away The police were looking for a stolen pickup truck in May 2021 when they came across Carr in a _different_ truck; in other words, he was not even the suspect they were seeking. The PRB Report states that Carr "rammed" a patrol car and drove at Officer Colby Marrs. They say Marrs had been verbally engaging with Carr and giving him time to reply. They also claimed that having multiple officers try to box Carr in was de-escalation (see comment above). The Board said that once Carr drove at Marrs, the officer had "no other option" but to shoot. Perhaps they acknowledge the part of the directive where the vehicle has to be an active threat by pointing out that Marrs stopped firing when the vehicle drove past him, raising the question of whether there was ever a threat. There were four supervisors reviewed for their actions in this case, including two who took control of the scene some distance from the shooting where Carr crashed the car. One item which sounds like actual community policing: supervisors checked in with houseless people living near the shooting site to be sure no stray bullets had struck them or their shelters. In a great example of the PRB's over-cautious effort to redact key information, the Board is also quoted as commending officer #5 because they held the "rank of [rank]." The Board made three recommendations, none about shooting at moving cars. One was to use the incident as a training case study for when there are two crime scenes, one was to clarify whether it's ok to box someone in against a parked car, and one has to do with notifications made on an "Officer Involved Shooting pager group." In this case there were eight findings, with seven listed as 7-0 unanimous votes but the one around a supervisor (officer 2) only having six votes listed. #10 Joshua Merritt, Clearly in Crisis, Wounded in Convenience Store Merritt had allegedly taken food at a convenience store, then lay on the floor refusing to pay or to leave in July 2021. After officers arrived, he broke a wine bottle and allegedly came into "close range" with Officer Craig Lehman, who then shot him. Apparently, Lehman hit Merritt in the hip, it's not clear if he was aiming there as officers are supposed to fire at "center mass" (ie, middle of the chest). The Board praised Lehman for de-escalating by issuing a verbal warning and not entering the store right away. One wonders whether they could have waited longer for Merritt to become tired or to surrender on his own. A second officer apparently used a Taser on Merritt as well, firing without warning because of a "sudden realization that (Officer 2) needed to defend (Officer 1)." The scene was again described as "chaotic" (even though the officers had shot Merritt and there are no bystanders described), with one Board member commenting that it was "amazing how quickly the involved members brought in the medical team." In this case, the two officers who used force and two supervisors were exonerated on 7-0 votes, while two other supervisors only had six votes total in their favor with none opposed. Both of the Board's recommendations on this case were rejected: One was to use the radio system to alert officers if there was a potential "suicide by cop" scenario and the other was to increase the number of Sergeants per shift. It's good that the PPB did not accept a recommendation using the term "suicide by cop" since officers shooting people is a homicide and that term is misleading; unfortunately it was rejected because it is the 911 operators' decision what to broadcast. The staffing issue was rejected because of the Dept. of Justice Settlement Agreement's section on how many Sergeants the Bureau needs to have. However, that is a minimum number. Moreover, the Agreement says to use less force on people in mental health crisis, and nobody mentioned that context. #9 Tai Anh Tran Takes His Own Life The narrative in the case of Tai Anh Tran says that he had shot someone prior to the police confrontation. The Portland Tribune reported (July 21, 2021) that Tran was a suspect in a non-fatal injury shooting at about 10 PM on March 30. The police chased his car about half an hour later and surrounded him having seen a handgun. Over five hours later, police said they heard a gun shot and pumped aerosol restraints into the car, later to realize he had taken his own life. The PRB was tasked to review the case because boxing in Tran's car meant that he was technically in police custody, described here as "constructive custody" as opposed to when a person is physically in custody of officers. Family members had previously alerted police that Tran had mental health issues, again, this is from the Tribune report and not the Review Board. In a rare instance that PCW has ever seen, the police got family members on the phone to try to talk to Tran. The police also consulted with an onsite mental health expert-- the first mention of mental health in just about any PRB Report. However, they then described the police assessment of the situation to be a "suicide by cop," which as noted above is a disingenuous term, intended to take responsibility off the police if they kill someone. Or in this case, did they put so much pressure on Tran that he killed himself? It's described in the Report that two officers each put "aerosol restraints" (which usually means pepper spray, but was described in the Tribune as "tear gas") into the car. A third officer bumped into Tran's car with a "G3 armored vehicle" to try bumping the gun out of Tran's hands. The Board was not sure it was a box-in and noted the officers could have used more force. One supervisor (the Incident Commander) was given praise for ensuring officers were trying to get Tran to surrender, noting they decided not to disengage because he was "unpredictable" and had claimed he had a hostage. The Board recommended that the PPB not define a death in "constructive custody" as a death in custody, probably to avoid their having to review such cases. However, since Tran is not here to tell his side of the story, it's important to question the officers' tactics and even, if the evidence is available, whether it was true that he took his own life. The votes on the three officers who used force and one supervisor were all 7-0, with only six votes on the Incident Commander. Again, we wonder whether that means this person was abstaining from a vote on their own performance, but still voting on people under their command. #3: RETALIATORY LEAK OF INFORMATION LEADS TO THREE DIFFERENT DISCIPLINE ACTIONS Hunzeker, as reported both in the news and the PRB report, admitted to releasing information on a preliminary investigation into a car crash that indicated Commissioner Hardesty was a suspect. That information hit the news just hours before others in the PPB cleared Hardesty on March 5, 2021 (the date was given in the Report). But the damage had been done. The basic charge for the release of information was "Dissemination of Information" (Directive 310.70), but the more serious allegation was that Hunzeker retaliated against Hardesty, who had made a statement during the 2020 protest suggesting the police were setting fires to create justification for brutalizing protestors. She later walked that back. Nonetheless, Hunzeker admitted he knew it would "negatively impact Hardesty's leadership role." The policy is 310.20 Discrimination, Harassment and Retaliation prohibited. There is no discussion of whether there was also discrimination involved, even though Hunzeker is white and Hardesty is Black. Nonetheless, both allegations were Sustained on 5-0 votes, with three Board members recommending two weeks off without pay, one suggesting three weeks off, and another giving a range between three weeks off and firing him. A mitigating factor, one person said, was the bad emotional state of the police after the protests and all the "anti-police negativity." Mayor Ted Wheeler announced that he made the decision to terminate Hunzeker's employment. Two other officers also improperly disseminated the information. Officer Kerri Ottoman also admitted to releasing the info, sending it to a friend with connections to the media. The Board pondered one day off without pay (four members) or two days off (one member), based in part on redacted information about the officer's prior history and "personal, private information." The third officer, Ken Le, only received a unanimously recommended Letter of Reprimand in part because they were a new officer and only shared it with a dispatcher, assuming they would have had access to the information themselves (which wasn't true). Chief Lovell agreed with the majority in these two cases, but it is not clear whether Le will get the suggested "additional corrective action" explaining the risks of revealing information from police databases. The Board also made two other recommendations, one that there be a process timeline to show why the investigation took so long to complete (the Board hearing was in October, seven months after the incident), and the other not to release the names of either Ottoman or Le (though that did happen) nor who voted on the Police Review Board. Their reasoning: "It could have an adverse impact on their willingness to volunteer in the future." So much for transparency! As noted above, while this case was widely publicly reported, the only name in the Report of anyone involved in any of the 10 incidents is Commissioner Hardesty's. Since she was the victim of the misconduct, it would be interesting to learn the PRB's logic in how that decision was made. THREE PROTEST CASES, TWO WITH SUSTAINED FORCE FINDINGS Two people at 2020 protests, one on September 23 and one listed as a reporter on an unidentified date, complained of excessive force and had their complaints sustained. A third person, also listed as a reporter, also complained of excessive force, but the PRB hearing led to "Not Sustained" (insufficient evidence) findings, while the Chief found one of those about Satisfactory Performance to be in violation of policy. #1 Person Injured While Trying to Disperse The first case was sent to the Board because three entities-- the IPR, police Internal Affairs, and an Assistant Chief, all disagreed with the officer's supervisor who had proposed a"Not Sustained" finding. The community member in this case was hit with a baton and fell to the ground, resulting in "jaw, shoulder, hip, head and neck" injuries. The Board felt that video showed the person was complying with dispersal orders, maybe even running to get out of the way. One member felt the officer targeted the person because they were wearing all black. Perhaps as a response, in discussing the potential discipline one member pointed out the person arrived with a helmet, goggles and a protective mask. Another said the person appeared to be following guidelines in an "Antifa publication on the roles of a crowd." Though it is not listed in the Report,*-3 the Board's vote was 4-3 to Sustain the allegation of excessive force, with three votes for the "Not Sustained" finding. Explanations for sustaining the allegation included that the officer tried to justify their use of force by blaming it on the actions of the entire crowd and that the person posed no active threat. By the way, PRB and Portland Police, it should not count against a person to show up at a protest where you are pretty sure officers will try to harm the crowd with weapons and chemicals wearing protective gear. Why do PPB officers arrive in riot gear? Opponents of the finding said that the officers were hit with projectiles, and that the video did not show the officer's point of view, where they claimed the community member was acting as a "human shield." The recommended discipline was one day off without pay; the Chief and Mayor agreed. An additional recommendation for the Training Division to use the video of the incident to prevent future such incidents was accepted. #2 Member of Press Pepper Sprayed The second protest case was also sent to the Board because of "controverted" findings from "Not Sustained" to "Sustained." However, the Report does not identify what ranking officer challenged the finding on the use of force; it does say the IPR also disagreed with the officer's supervisor on that issue. IPR additionally said the officer using force against a person identified as a journalist was in violation of a court's temporary restraining order. The Board viewed a video showing the person was between (presumably parked) cars, but not in the street; they indicate that the officer pushed the person and used the pepper spray fearing the person "might" go into the street. One Board member stated the video didn't show whether the person might have had their eyebrows furrowed, which they apparently think is aggressive enough behavior to justify force being used. The force allegation was proposed to be Sustained on a 4-3 vote, with others agreeing with the original "Not Sustained" finding. The allegation about violating the restraining order was confirmed as "Not Sustained" because it wasn't clear the officer knew the person was with the media. Police, they reasoned, are not liable for unintentional violations of the order. One complaint about the investigation is that in order to determine whether the person's actions were "active aggression" or "physical resistance" an officer would have to be a robot. Another was that the officer made a split second decision responding to "active aggression" and demanded to know details of the video such as its buffering rate (seriously). Three of the four who sustained the finding recommended a Letter of Reprimand, a fourth asked for one day off without pay, which is what the Chief and Mayor ended up imposing because it was the officer's second violation. One member of the Board recommended that environmental factors be considered into whether an officer violated policy, a suggestion that was rejected because the US Dept. of Justice would have to approve such a change to the force policy. #4 Another Member of the Press Hit with Baton, Mixed Outcome The third protest case also involved a person identified as media who, the Report says, had a baton "swung" at them as well as pepper spray deployed. However, the swinging baton's contact with the person was referred to as a "touch" that is no different than pushing a person with your hand. (Unlikely you could break a person's skull with your hand, though.) The Report emphasizes this was an unpermitted protest event, and implied the person tried to hit the officer while the cop was trying to take them into custody. Their logic: there was no need to de-escalate if the intent was to arrest the person. Five of the seven members recommended a "Not Sustained" finding, which is what the officer's supervisor suggested before IPR controverted it to"Sustained." They made the same finding about whether the officer's actions constituted "Satisfactory Performance." The two who voted to sustain called the baton strike a "poke" indicating the officer was trying to "win." The two wanted to sustain the performance issue because the officer deployed the pepper spray after the person walked away. Those two suggested a Letter of Reprimand, assuming both allegations would be sustained. The Chief over-ruled the Board and only found the performance issue in violation, then ordered the lower discipline of Command Counseling. The Board also recommended that the Rapid Response Team be taught skills to defuse situations, which the Bureau approved. However, this recommendation was made in December 2021, six months after the RRT dissolved when all its members quit participating in the unit. As noted above, this Report was released on December 10. However, the cover sheet lists the publication date as August, 2022-- four months earlier. It's curious why it was delayed. Perhaps the police were waiting to see whether Commissioner Hardesty would win re-election (she did not). The most recent hearing date was June 15, meaning there are nearly six months of information which has yet to be revealed. PCW believes that will include a case which recently went to City Council in which Officer Brian Wheeler was found out of policy on two counts for harm done to a community medic at a 2020 protest. The document is also labeled "Case outcomes and stipulated discipline," but there are no reported incidents in which officers stepped up, admitted to misconduct and took whatever discipline was coming to them. Even though the DOJ and the Police Association made this alternative plan possible, it is strange that was apparently not used at all, at least not since the one stipulated discipline case listed in the September 2021 PRB Report. ======== ...PORTLAND COPWATCH ONGOING SUGGESTIONS FOR BETTER REPORTS PCW continues to ask the Portland Police Bureau (PPB) to include the following data points to improve the readability, clarity and transparency of the Reports:
--the date of the incident in question
--the number of voting members and number of votes
--which opinions were from officers, civilians,
--the gender of all persons involved (both for clarity in
--the names of officers, particularly in cases which have already
--more thorough background summaries for all cases, especially --an explanation of the delay in publishing a case;
--a general summary of the purpose of the PRB with a citation of the
--reports on the progress of PRB recommendations,
--a list of the names of the civilian members of the Board, which As in the past, Portland Copwatch prefers some information to none, but strongly encourages the Bureau to recognize that all of these cases are of great public interest and deserve a more thorough set of summaries. The fact that every one of the shooting cases, as well as the retaliation case, all appeared in the press with officers' names should make it easy to include those names in the narratives. PCW also appreciates that the Review Board's staff tipped us off, in response to an email, that the Report was published, once again allowing us to get our analysis out before the media noticed. However, the PPB should publicize these Reports as they do with so many other publications. It also would increase community trust if the civilians who volunteer to be on the PRB would hold public meetings twice a year to present the Reports and respond to community questions.
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