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Portland Copwatch Testimony on
US Dept of Justice/City of Portland Settlement (Section 2)


Summary: The Agreement leaves room for improper and excessive use of Tasers; the City's effort to enact the Agreement creates even more loopholes.

The DOJ Agreement calls for the Police Bureau to rewrite its Taser policy as part of the overall effort to minimize force against people experiencing mental health crisis. Tasers are so-called "less lethal" weapons that immobilize a person using 50,000 volts of electricity in 5-second cycles delivered through unbent fish-hooks deployed from a hand-held plastic gun-like device.

The Agreement (in paragraph 68) allows a continuation in loopholes of the Taser directive, including that officers:

--can zap people more than two times but should "avoid" using more than three Taser cycles "unless exigent circumstances warrant use" (paragraph 68-f-- though paragraph 58 defines more than two uses as a "serious use of force");

--can use Tasers on handcuffed subjects (paragraph 68-g);

--should not have multiple officers use Tasers on the same person "except where lethal force would be permitted" (paragraph 68-d);

--can use Tasers on handcuffed or otherwise restrained people "to prevent them from causing serious physical injury... or if lesser attempts of control have been ineffective" (paragraph 68-g)

--do not necessarily have to give verbal warnings (paragraph 68-b); and

--are prohibited from using Tasers on people in mental health crisis "except in exigent circumstances, and the only to avoid the use of a higher level of force" (paragraph 68-a).

There are a myriad of exceptions written into the DOJ Agreement to limiting the use of Tasers. When the Bureau revised its policy, supposedly to meet the new standards, in February 2013 (Exhibit B- PCW), it reflected many of these loopholes. In December 2013, the Bureau released a newly modified version, based on closed door discussions with the Portland Police Association (PPA)-- the City's co-defendants in the lawsuit-- which modified a prohibition on the use of Tasers to threaten or coerce. The new directive allows threats or coercion "to manage a potential or actual physical confrontation" (Exhibit C-PCW).

A prevailing ruling in the Ninth Circuit Court of Appeals noted that Tasers are weapons that can cause substantial pain, so should be restricted for use only when an actual threat to safety exists. Neither the DOJ Agreement nor the Bureau's watered-down version seem to be in line with that ruling. The DOJ letter of findings noted: "The use of an ECW [Electronic Control Weapon] on a person could result in serious injuries when intense pain and loss of muscle control cause a sudden and uncontrolled fall. And, ECW use can result in death" (p. 14). The letter called upon the Bureau to reconcile its policy with the Ninth Circuit findings indicating a subject had to be engaged in "threatening conduct" (p. 16).

And although the Agreement asks that officers allow the subject to comply with commands before re-activating a Taser (paragraph 68-e), even the oversight mechanism built into the Agreement calls for consideration of exceptions to any rules (paragraph 74-b-iv). The person who will be monitoring implementation of the Agreement-- the Compliance Officer/Community Liaison (COCL)-- is asked to ensure officers "do not attempt to use [Tasers] to achieve pain compliance against subjects who are unable to respond rationally unless doing so is reasonably calculated to prevent the use of a higher level of force."

We should add here that PCW, the Citizen Review Committee*-4 and the Community and Police Relations Committee (which includes officers as voting members),*-5 have all recommended that the Bureau collect data on "laser dot only" use of the Tasers, but that has not happened and is not reflected in the Agreement. This information is important as it indicates if a threat was made. A community member, especially one in mental health crisis, might not know whether the red dot of light appearing on their chest is from a gun or a "less lethal" Taser.

The Agreement needs to be clearer and more firm to limit Taser use and be consistent with case law, and the City needs to close the loopholes which seem to be designed to let officers continue their practice of unchecked Taser use.

*-4-Recommendation 2012.4, "Less-Lethal Force Recommendations," September 2012
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*-5-Recommendation IV.C.a, "Use of Force Policy Review and Recommendations," July 2011

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DOJ Letter of Findings (September 12, 2012)

DOJ / City of Portland Settlment Agreement (November 14, 2012)

Next Section: 3. Accountability-- Independent Police Review

Back to Copwatch DOJ information page

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Testimony sections:

1. Appealing Findings
  on Deadly Force Cases

2. Taser Use
  and the DOJ Agreement

3. Accountability--
  Independent Police Review

4. Accountability--
  Citizen Review Committee

5. Accountability--
  Police Review Board

6. Use of Force
  and the DOJ Agreement

7. Mental Health Provisions
8. Training
  and the DOJ Agreement

9. Tracking Police Contacts
  / Demographic Information

10. Implementation and

11. Oversight of the
  Agreement / Conclusion

(Additional Materials

Testimony in pdf format
  (16 pgs)

Portland Copwatch
PO Box 42456
Portland, OR 97242
(503) 236-3065/ Incident Report Line (503) 321-5120
e-mail: copwatch@portlandcopwatch.org

Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.

Posted January 31, 2014

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