Portland Copwatch Analyzes Compliance Officer Report on Accountabliity & Outreach February 2019

Compliance Officer Report Supports PPB Denial of Racial Profiling, Over-Rates New Civilian Board
an analysis by Portland Copwatch, February 14, 2019

In January, the Compliance Officer/Community Liaison (COCL)*-1 put out its draft Report examining the city of Portland's accountability system for officers, and its community engagement efforts including the new board designed to oversee the US Department of Justice (DOJ) Settlement Agreement. Portland Copwatch (PCW) believes the draft Report ( https://www.portlandcocl.com/reports/2019/01/15/compliance-and-outcome-assessment- accountability-pccep )*-1a once again undermines its occasionally useful observations and recommendations by rushing to praise the Portland Police Bureau (PPB) and city for work which isn't yet done, and in this particular Report, ignoring the Bureau's unreasonable analysis of traffic stop data which serves to deny racial profiling is happening. Since October 2017, the COCL has been rushing to declare the City is in compliance with the terms of the Agreement, made more unsavory this time in the Report's praise for the newly formed Portland Committee on Community Engaged Policing (PCCEP), which had only met twice before the analysis was done.

The COCL's review of the city's oversight system spends far too much time analyzing the length of time investigations take, with barely a mention of the outcomes of community complaints or efforts of the one public window into the system, the Citizen Review Committee (CRC).

Overall, there are 32 paragraphs under review*-2 and the COCL moved ratings on nine from "Partial" to "Substantial" compliance, another four to "Substantial- Conditional,"*-3 and three which were not previously reviewed to one of those two latter ratings. Another eleven paragraphs remained "Substantial" and five, mostly reasonably, remained as "Partial." In other words, they are saying 27 of the 32 items, or 84%, are essentially in Compliance, even though community experience and some of the COCL's own analysis says otherwise.

In our analysis of the October 2018 Report, PCW began a new practice of creating an enhanced scorecard, which adds two columns to the ones in the COCL Report: one shows a short summary of the content of the paragraph, and the other shows the previous rating. In this case the COCL's last ratings were given in October 2017. One other key distinction is that PCW's chart uses a muted green color to indicate "Substantial-conditional," in part because the COCL's green coloring gives the Bureau the idea they are finished, even when the "Conditional" term means they have work to do.*-4 Copwatch has posted its scorecard for the new Report at ( http://www.portlandcopwatch.org/DOJscorecard0119.pdf ).

In the below analysis, PCW uses page numbers in [brackets] and Settlement Agreement paragraph numbers in (parentheses).

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THE WORST OF THE WORST: BACKING UP PPB'S BOGUS RACIAL PROFILING ANALYSIS

The worst part of the COCL's Report is their praise of the PPB's analysis of pedestrian and traffic stop data. Paragraph 148 requires such data collection and analysis, and previously required input from the PCCEP's predecessor, the Community Oversight Advisory Board (COAB), until the Agreement was changed in early 2018. The Report talks about how the Bureau has done "excellent" work conducting a "thorough, sophisticated and transparent analysis" of the stop data [pp. 10&85]. There is no critical questioning of the fact that the Bureau's 2016 annual report (included as Appendix O) declares, as the COCL repeats, that there are "no significant racial disparities" in how Portlanders are stopped. However, the overall rate at which African American Portlanders are stopped is 13% in a City which is 6% black. The COCL and PPB say it makes sense to use traffic accident data to approximate what ratio of all drivers are African American, but that number is 9%, meaning there is still a disparity.

The COCL then claims that the only racial disparity is in the Gang Enforcement Team (GET), which by the PPB's measure stops African Americans _less_ than they would expect, even though an astonishing 61% of their stops are of black drivers. Why? Because they say 71% of victims of "gang violence" are African American. Therefore, according to this twisted logic, the GET is over- policing white and Latinx drivers. It does not make any sense that people who are the presumed victims of crimes are more likely to be stopped by police. That the PPB put such an analysis forward with a straight face is one thing, but that the Compliance Officer not only supports the ridiculous assertion but praises it as groundbreaking work is outrageous. Moreover, if crime victimization is the appropriate benchmark, then the statistic that 19% of crime victims are African American (per the FBI in PPB's report) means the overall stop number should be higher than 13% by their logic.

When reporting pedestrian stops are down by 87% in five years, the COCL ignores the fact that the PPB is claiming they only stop people on foot or on bicycles 20-25 times per month. This is clearly a fabrication based on the PPB's too-lenient definition of "mere conversation."

The Report also says traffic stops are down 51%, speculating it could be due to better driving (obviously, the COCL is not from Portland), the (alleged) scarcity of officers, or the national pressure to "reduce aggressive policing." However, they believe it is of "concern" if officers are "depolicing." The core COCL team is all white, if we did not mention this before.

There is a little bit of good news, both in numbers and the COCL's analysis. They note searches are down but that African Americans are searched at three times the rate as expected (something PCW has pointed out for years), and Native Americans are searched four times too much. The rate at which officers actually found contraband went up from 34% to 42%, meaning there was a slight decrease in searches done for no actual law enforcement purpose. The COCL does note that the contraband rates for the people of color who are over-searched isn't higher than that of whites, but doesn't suggest a course of action to reduce the disparity other than saying the Bureau should give the issue more "attention." They also note the PPB's analysis shows for African Americans, the GET relies too heavily on consent searches, rather than ones based on probable cause. The Report excuses officers' inappropriate institutionalized conduct by saying "officers serve critically important roles in law and traffic enforcement... to keep the public safe from dangerous vehicular accidents and costly/traumatic criminal victimization." The COCL almost makes up for this support of unregulated state power by noting it is of concern that six out of ten people searched did not have contraband.

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COCL LOOKS AT PORTLAND'S (LACK OF) ACCOUNTABILITY SYSTEM

Bathed in numbers and generalities, the COCL's Report ignores some of the substantial problems which have plagued Portland's oversight system. They heap praise on the civilian-run "Independent" Police Review (IPR) for holding joint trainings with the Bureau's Internal Affairs (IA) and for conducting "meaningful" misconduct investigations (per paragraph 128, but to be fair that is given a "Partial" rating). The Report again never mentions that IPR is not allowed to compel officers to testify. Due to constraints by the Portland Police Association (PPA) contract, IA investigators have to order officers to answer IPR's questions. As with the 10/17 Report, the new analysis doesn't seem to understand that civilians who feel they have been harmed by the police do not want a system in which police are investigating other police. This is underscored when the COCL suggests IPR could speed up its investigations by turning some cases over to Internal Affairs [p. 67], and when they call out IPR for not having as much experience as the "decades" IA has [p. 76]. IPR is shown to have completed four cases in the course of nine months, with two others still open, during which time IA completed 49 cases with 27 still open [pp. 61-63]. In that time, IPR did not finish any within the DOJ-prescribed 180 days (121) while IA finished 35, or 71%, on time. Several tables also include cases from the following six months, none of which were 180 days old at the time of the Report and thus just take up space which could be used for more meaningful information. Oddly, the COCL explains the 15 cases which went over the time limit in the first Quarter of 2018 "likely" had a reasonable justification for the delays [p. 58]-- shouldn't they be assessing whether that is the case rather than guessing?

The COCL shows that only 20% of cases had "Sustained" (out of policy) findings, while 21% were "Exonerated" (in policy), 48% had insufficient evidence to prove or disprove ("Not Sustained"), and 11% were "Unfounded" (meaning the facts did not support the allegation) [p. 57]. There is no analysis of what this means, how it compares to previous years, what findings were attached to what kinds of allegations, how many cases involved civilians, or whether the process which began in 2018 allowing IPR and IA to attach proposed findings to the investigations made a difference in the outcomes. That change was made in response to paragraph 128.

The CRC, which generally meets monthly and hears appeals of misconduct findings, has sent back a relatively large number of findings asking they be changed to "Sustained," but COCL doesn't report on any of that activity. They briefly mention that CRC's appeal process was moved outside of the 180 day timeline under changes made to the Settlement Agreement in April 2018, and note that CRC has sent back a few cases for more investigation per paragraph 136. However, even though the Bureau has never met that paragraph's requirement to complete the follow up investigation in 10 days, the COCL finds the City in "Substantial" compliance. The Report claims that because new investigation requires the cases to go back for new findings from the officer's supervisor, the delay is reasonable [p. 23]. The COCL's job as a scientific analyst once again falls flat here, and there is nothing saying how long the new investigations take before heading to the supervisors.

Although the COCL ignores the frustration caused to both complainants and CRC members by CRC's restrictive standard of review, which requires them to defer to the Bureau supervisor if a "reasonable person" could come to the same finding, the Report contains an important observation. The COCL acknowledges CRC wants to change their standard to "preponderance of the evidence." They opine that change will not put the City out of compliance with paragraph 135, which states a finding is unreasonable if it is not supported by the evidence [also p. 23].

Significantly, after Sergeant Gregg Lewis made a violent, racist comment ("joke"), the City just paid $100,000 to get him to resign because the Bureau's Discipline Guide technically did not allow for him to be fired. The COCL praises the PPB for putting out their policy ("Directive") about the Guide for community comment, mentioning that they updated the Guide itself in early 2018 [p. 24]. However, the community was never given a chance to weigh in on the Guide, a step which may have caught the loopholes allowing Lewis to negotiate his reinstatement and resignation.

The closest the COCL comes to making an argument for IPR to have more true independence is in revealing that the civilian office has a hard time getting certain documents from the Bureau, and some information comes to them redacted [p. 14]. The excuse is that IPR personnel are not members of law enforcement, even though that is the exact reason to have civilian oversight.*-5

In terms of whether IPR and IA's investigations are acceptable for community standards, the COCL reveals they were at "multiple iterations" of sessions reviewing the joint policies, but there is no mention that the public was not present for those discussions [p. 19].

The COCL speculates more complaints are coming in because IPR is doing a better job tracking contacts, ignoring the real possibility that police are committing more acts of misconduct.

Perhaps the most important observation in the Report about the oversight system is that IPR seems to be more interested in prioritizing community concerns, while IA thinks everything is about the officer. The PPB is insinuating IPR is coaching people to make allegations [p. 79], even though in reality most people are not familiar with PPB policies and IPR is likely just guiding them to be specific about what they think went wrong. There is also a comment from two IA investigators that officers are not as forthcoming now that IA and IPR can recommend findings along with submitting their investigative reports.

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INVESTIGATIONS INTO USE OF FORCE

After officer involved shootings and other deadly force incidents, IPR is not allowed to investigate. PPB Detectives look into possible criminal conduct and IA compels officer testimony for administrative purposes. Now that the "48 hour rule" has been done away with in the PPA contract, and then fixed more permanently after community action in summer 2017, the COCL finds paragraph 124 on compelling officer statements to be in "Substantial Compliance." It appears to be true that nearly every officer since late 2017 was interviewed within 48 hours as the new policy dictates, except for one cop who was bitten by another agency's police dog. On the other hand, the COCL continues to find "Substantial Compliance" for the Bureau asking officers to go on a walk through after they are involved in a shooting (127) even though no officer has ever done so [p. 18].

Although the Agreement requires investigations into any allegation of use of force, the COCL lets slide the Bureau's explanation for not trying to figure out who the cops were in one case by repeating the PPB gripe that they "spent resources" doing so [p. 19].

One important aspect of excessive and deadly force cases is that they are sent to the Police Review Board (PRB), a closed-door, Bureau-run body which recommends findings and discipline to the Chief. The PRB has been including one member of the CRC when deadly force cases are heard, as required, but as the COCL noted in this Report and in October 2017, apparently not for other cases outlined in paragraph 131. This is partly because those kinds of cases are not listed in City Code [p. 31]. On that note, the COCL has finally echoed PCW's longstanding complaint that the Agreement's provision for the PRB to send cases back for more investigation (132) is also not included in City Code.

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NON-DISCIPLINARY COMPLAINTS AND ANOTHER COMMUNITY RECOMMENDATION IGNORED

In their analysis of the new handling of non-disciplinary complaints, now known as Supervisory Investigations (SIs), the COCL laments that officers are put in an unfair position when a complaint is really about a structural issue and not the officer's particular behavior. In 2010, a City-organized Stakeholder Group facilitated by John Campbell put together a number of recommendations, one of which was to create categories of "Communication Issues, Training Issues, Equipment Issues, and Other Policy-Related Issues" as findings separate from whether an allegation was being leveled at the officer themselves.*-6

That said, the COCL actually gets it right when noting the Bureau is allowed to "administratively close" a Courtesy SI [p. 71], despite some supervisors' belief otherwise. PCW suggests the seriousness of such a complaint should be noted before doing so. The Report notes that the two possible findings on SIs ("substantiated" and "unsubstantiated") does not give enough nuance, which is not surprising as the four findings for regular complaints are fairly standard. That is, except for SIs and in deadly force cases, where the PPB only uses "In Policy" and "Out of Policy." Sergeants processing SIs complain that the minor complaints "fall like snowflakes" even though none had to handle more than two over the course of 45 days [pp. 72-73]. The COCL doesn't mention whether there will be an analysis to see whether a specific Sergeant is receiving more SIs on his/her watch than others, though that seems like it would be a good idea.

One conclusion by the police is that rather than do a formal investigation, the supervisor could just address some of these issues with a phone call. The problem there, again, is that a police officer would be calling someone to explain the behavior of another police officer, which doesn't really create the conditions for true accountability.

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COMMUNITY OUTREACH BY PPB INCLUDES ENFORCEMENT ACTIONS

Before getting to the PCCEP, we first turn to paragraphs mostly focused on the Police Bureau's responsibilities listed in the community outreach and engagement section of the Agreement. One key issue PCW has noted repeatedly is that the Bureau is supposed to put out annual reports and hold four community meetings-- one in each of the city's three precincts, and one at City Council. Only once since the Agreement was in full force in 2014 has such a report been published; the precinct meetings happened but were not well publicized; and no Council meeting was ever held. Yet the COCL continues to claim paragraph 150, which sets guidelines for the reports, is in "Partial" compliance. Even with the 2017 annual report being presented to the PCCEP in draft form in very late 2018, we would still say this is a Non-Compliance item. The COCL even admits the previous annual report only "covered a few statistics in 9 pages (comprised mostly of pictures)" [p. 49].

Praising the Bureau's outreach efforts as required by paragraph 145, the COCL points to a Community Policing Spotlight newsletter, and the PPB posting "takeaway points" from meetings [p. 38]. The Report lists various advisory groups and notes the Bureau created a "Community Engagement Unit" in 2017, not noting the irony that happened shortly after the COAB had been dismantled. Strangely, one of the only advisory groups not mentioned is the Behavioral Health Unit Advisory Council, likely because that group's meetings (as PCW has repeatedly noted) are not open to the public.

The worst bit of analysis is an assertion that POLICE CONDUCTING TRAFFIC STOPS IS A FORM OF COMMUNITY OUTREACH [p. 41]. PCW does not regularly engage in all-caps writing, but, c'mon, this is law enforcement and not community outreach and engagement. The COCL further shows themselves to be out of touch by saying the Bureau is responsive to the community through stronger accountability (without presenting evidence of its strength), and talks about how officers respond to "delinquent youth" without arresting them (despite this term not being in wide use since the 1970s)*-7 [p. 42].

They specifically state that for outreach, the PPB supposedly touched base with 37,196 people in September, 2018 at nine advisory boards, 15 community events, six festivals, one faith meeting, one media event, 13 neighborhood meetings, three sports events and nine workshops [p. 81]. This involved 200 police officers... out of a force of over 900.

The COCL has, for some time, pushed the idea of a survey for people who have interactions with police. It is not clear whether they have fully taken into consideration not having the Police Bureau be the initiator or collator of this survey, which apparently will be done as part of a national test project.

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PORTLAND COMMITTEE ON COMMUNITY ENGAGED POLICING (PCCEP): INSUFFICIENT DATA

The cumbersomely named new oversight committee received very high ranks from the COCL considering how little they have actually achieved. Out of 12 paragraphs involving the PCCEP in some way or another, only three are listed in "Partial" compliance: paragraph 146, which requires PCCEP to help conduct a general community survey and work on the Bureau's outreach plan; paragraph 147, which requires the PPB to share precinct-related demographic data with the Committee; and paragraph 149, which requires the DOJ, COCL and PPB to create metrics to measure the Bureau's engagement progress, allowing PCCEP to review the data and make suggestions.

Six paragraphs are labeled as "Substantial-Conditional." One example is paragraph 142, which outlines PCCEP's scope of work. The COCL says they foresee Substantial Compliance based on progress they "anticipate" the group will make [p. 35]. The Committee was unable to make recommendations to DHM, the consultants working on the community survey required by paragraph 146, due to an artificially accelerated timeline. Apparently individual members sent in feedback after a Steering Committee meeting [p. 43], but it is not clear if this feedback was discussed collectively or made available to the public.*-8

The COCL makes no mention of the fact that PCCEP only really has one significant power, which is to direct the Bureau to look at changing a Directive even if it is not up for its annual review. Though the Police Commissioner (Mayor) has to sign off on such a request, the Report ignoring this authority is similar to how the Committee should be receiving stop data but is not required to give input into how it is collected or on fixing the Bureau's skewed analysis [p. 46].

The creation of PCCEP (141) receives a "Substantial" rating even though at the time the Report was drafted they had only held two meetings, had not set up subcommittees (those were only voted on, not begun, in late January), and at least two people had already quit (a third quit sometime in January, perhaps after the Report was drafted).

Though PCCEP's membership (143) is given a "Substantial" rating, the COCL does note PCCEP's original lineup included nine men and four women, which represented an imbalance. The Compliance Officer doesn't seem upset members were not asked about a potential conflict of interest [p. 35]. One of the group's co-chairs, Lakayana Drury, heads up an organization called "Word is Bond" which has, among other things, cosponsored basketball games with the Portland Police Bureau.*-9

PCCEP is praised for putting out meeting notices 10 days in advance, which is more than required by public meetings law (151) [p. 50]. However, the City is supposed to send out notice 2-3 weeks in advance per a side agreement made with the Albina Ministerial Alliance Coalition for Justice and Police Reform. In February, PCCEP's first two subcommittee meetings were announced with one and two days' notice.

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ERRORS AND WRONG WORDS

As is usual, there are a number of typographical errors in the Report, some of which PCW has sent to the COCL in a separate document. There are also a few wrong words here and there, other than ones we have referenced above.

One example: On p. 30 there is a reference to a "straw man proposal" by PCCEP about its steering committee and subcommittees. Since a "straw man" is something an exaggerated idea which is easily refuted, we believe the COCL meant "straw poll."

Also, the COCL seems comfortable that most police supervisors define "preponderance of the evidence" as "50.1%", but the actual measure is anything more than 50% [p. 76].

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CONCLUSION

Once again, while there are some interesting insights in the COCL's Report, there is too much praise for the little bit of movement the Bureau has made over the several years since DOJ came to town. It feels as if everyone is sick and tired of the Settlement Agreement except maybe for Portland Copwatch and a handful of other people in the community. We are sick and tired of the intransigence, soft evaluations, doublespeak, officer involved shootings and racial profiling.

There is too much deference to the police, as strikingly illustrated by the lack of pushback on the Bureau's statistical gymnastics around profiling data. In our review of the COCL's previous Report, we noted declaring the City to be in compliance will allow Portlanders to regain local control of police. While that is an important goal, it is also crucial for the community, including the nascent PCCEP, to hold the police accountable for implementing the changes they agreed to in 2012.

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Footnotes:

*1- As noted previously, since the COCL's role no longer involves managing the community board set up to oversee implementation of the agreement, they should be called the Compliance Officer/CO not the COCL.

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*1a- After the COCL finalized the report, the draft was taken off the website, so this link now leads to a copy of the final report: https://www.portlandcocl.com/reports/2019/3/4/complianceandoutcomereportfinal . The reports are not substantially different.

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*2- The COCL also assigns a rating to an introductory paragraph, which is not necessarily a bad thing, but breaks from previous practice of reviewing numbered paragraphs.

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*3- The COCL made this term up after only having ratings of "Non-Compliance," "Non- Compliance with Steps Taken," "Partial Compliance" and "Substantial Compliance" for many years.

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*4- To be fair, the COCL changed their typeface in the "Conditional" blocks from black to yellow, but the green background still looks like a "good to go" message.

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*5- IPR recently hired retired PPB Captain Vince Elmore as an investigator, despite community expectations that no former PPB personnel would work for the "Independent" agency.

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*6- http://www.cdri.com/library/PoliceOversightStakeholderReport2010_V2.pdf at p. 12.

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*7- https://www.npr.org/sections/ed/2015/04/28/399949478/delinquent-dropout-at-risk-whats-in-a- name

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*8- The meager minutes from the meeting indicate that information would be collected by staff in the future, and the PCCEP will ask for more time to give input in the future.
https://www.portlandoregon.gov/pccep/article/707166

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*9- The Multnomah County Sheriff's Office and the Portland Police Association are also listed as sponsors.
https://www.facebook.com/WordisBondPDX/photos/a.361344700955272/535404716882602

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Posted March 25, 2019