Portland Copwatch Testimony on
US Dept of Justice/City of Portland Settlement (Section 6)
6. USE OF FORCE AND THE DOJ AGREEMENT
Summary: Policies should clearly limit the amount of force the PPB is allowed to use;
violations should have serious consequences; officers should not have special rights when being
investigated; and cops should not be left alone to investigate other cops.
Because the DOJ investigation found a pattern or practice of excessive force by the Bureau, looking
at how the City has chosen to begin implementing the Agreement on this issue is illustrative of their
overall efforts. It seems as if they are taking the court's question of whether remedies are "adequate"
to mean "do they minimally conform to what the Agreement requires?"
In fact, the Agreement requires the force policy to include language about using "only the force
reasonably necessary" and to "develop... the skills... to regularly resolve confrontations without
resorting to force or [using] the least amount of force" (paragraphs 66 a&b). Yet when the Bureau
released its revised Force policy on December 13, those words are no longer found in it *-23 even though they were in the existing Directive when the DOJ
investigation began,*-24 and in the "final draft" released in February
2013 (Exhibit F-PCW). The new Directive talks about a commitment to train officers to "effectively
resolve confrontations through the application of de-escalation tools and lower levels of force"*-25 as opposed to no force or "the least amount of force."
In revising the policy, the Bureau discusses the legal standard (Graham v. Connor, reasonable in the
totality of the circumstances), but they removed the reference saying that by its administrative
policies PPB Use of Force has to both meet the Graham standard and meet the City's higher
standard. It now simply prohibits force that is "not objectively reasonable."*-26 It is discouraging that in the Force policy the City focused on the
Constitutional standard, which may absolve officers of wrongdoing in a court case examining the
legality of their behavior, but moved policy issues about their administrative expectations elsewhere.
The City removed and reworded the "develop skills over time" language, moving that phrase to its
"Satisfactory Performance" directive*-27 while adding a sentence
stating the Bureau "requires that members... apply effective force when necessary."*-28 This is different from other language which says officers should be
capable of using force "when appropriate"*-29 and could mean that
officers will be disciplined for failing to use force, a contrary notion to the principle of reducing
PPB violence.
So even though the Agreement calls for police to de-escalate their use of violence as the resistance
from the subject(s) decreases (paragraph 67-c) and encourages officers to "use disengagement and
de-escalation techniques when possible," it seems that the Bureau is leaving loopholes for force to
be used as it always has been-- with impunity.
We have called repeatedly for the City to reinstitute some variation on the "continuum of force" that
once was part of the Force Directive, at least to make clear the maximum force that can be used
against certain kinds of threats.*-30 We feel that the community and
the police would both benefit from the clarity that such a set of guidelines would provide.
Another example where the Agreement itself is not adequate to address the problems found by DOJ
is in describing a discipline guide (paragraph 137), which reasonably calls for discipline to be
"predictable and consistent" but doesn't call for terminating officers for egregious rights violations.
Another huge disappointment in how the City has so far been setting up to implement the
Agreement is the many provisions they chose to leave in place in the Portland Police Association
contract. While the Agreement defers to the "just cause" provisions of the contract (paragraph
131c), acknowledges that some changes may take time because of bargaining issues (paragraph
180), and asks the City to keep DOJ apprised of negotiations (paragraph 189), it does not include
direction for removing contract provisions that are really public policy issues as opposed to
workplace issues of fair wages, safety, or benefits. As such, the City left in a number of provisions
that the DOJ (and the community) identified as problematic, such as the 48-hour rule allowing
officers two days before being compelled to testify about alleged misconduct (PPA Contract*-31 and DOJ Findings Letter p. 31: "It is difficult to conceive of PPB
officers permitting [a] civilian 48 hours before asking him or her questions").
The Agreement also does not call for strong changes to the policy on medical attention to people
injured by police. It only vaguely touches on following protocols in the Taser section (paragraph
68-c), and for supervisors to ensure medical attention once they are on scene (paragraph 70-c),
which may be too late. The DOJ Findings Letter suggested: "There should be a bright line rule that
whenever an injury occurs or whenever a subject complains of an injury, EMS is summoned" (p.
37).
Furthermore, while the Agreement calls for all Use of Force complaints to be investigated, it allows
dismissal if the IPR finds "clear and convincing evidence" to drop the case (paragraph 129). There
is no provision for an appeal by the complainant to challenge this evidence. Under the Agreement,
the investigation into Use of Force begins on the scene, when a supervisor is supposed to show up
and conduct an investigation (paragraph 70 and PPB Directive 940.00). There is no analysis that
the immediate supervisor is usually a Sergeant, who is in the same collective bargaining unit as the
officer. We suggest that the City be directed to send a civilian investigator from IPR to the scene of
Use of Force as well as, or instead of, the Sergeants.
Footnotes:
*-23- Directive 1010.00 December
2013, Exhibit E-PCW
Back to text
*-24- Directive
1010.20 2009 Manual of Policy and Procedures
Back to text
*-25- Directive 1010.00 Sec. 4.9
December 2013, Exhibit E-PCW
Back to text
*-26- Directive 1010.00 Sec. 4.1
December 2013, Exhibit E-PCW
Back to text
*-27- Directive 315.30, December
2013
Back to text
*-28- Directive 315.30 Sec. 2.3,
December 2013
Back to text
*-29- previous
Directive 1010.20 and
December 2013 Directive 315.30 Sec.
2.3.2
Back to text
*-30- for example, in our "Comments
on Revised Drafts of PPB Force and Taser Policies," March 18, 2013, Exhibit G-PCW
Back to text
*-31- Portland Police Association Labor Agreement,
Section 61.2.1.3 (2010 language unchanged in 2013 renewal)
Back to text
DOJ Letter
of Findings (September 12, 2012)
DOJ / City of
Portland Settlment Agreement (November 14, 2012)
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