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COMMUNITY GETS SEAT AT TABLE AS DOJ AGREEMENT MOVES THROUGH COURT
Police Association Gets Greater Role in Remedy to Constitutional Violations; Chief Proposes Policy Changes

History was made on February 19 when Judge Michael Simon ruled on motions to intervene in the federal lawsuit against the City of Portland regarding excessive force by the police (PPR #58). Simon ruled, in terms that were much better than expected but less than hoped, that the Albina Ministerial Alliance (AMA) Coalition for Justice and Police Reform does not have a right to intervene, but that he would grant the Coalition "enhanced amicus status." This ruling, apparently unprecedented nationally, means that the City and the Department of Justice (DOJ) must invite the Coalition to the table whenever they are negotiating terms of the Agreement. While it doesn't give the community power to force changes, it does give a voice at the table. This means that the back and forth that happened behind fully closed doors between the letter of findings being released in September and the draft Agreement being released in October will now have to happen with a door slightly open. Simon ruled, unsurprisingly but disappointingly, that the Portland Police Association (PPA) does have a right to intervene based on their interests in parts of the Agreement which may affect their Collective Bargaining Agreement. This means all four parties have the ability to speak before the judge as the process moves forward.

In many ways, the PPA's presence could be a hindrance to true reform, especially since some of the provisions called for in the DOJ's original findings letter were dropped, likely anticipating claims they needed to go to collective bargaining. (The primary example is the so-called "48 hour rule" that in practice allows cops at least two days before they are interviewed after a shooting.) Late in 2012, both PPA President Daryl Turner and Chief Reese connected a series of officer injuries to the restrictions being proposed in the DOJ Agreement (which hadn't even been signed yet). It turns out one of those injured cops, Officer John Billard (#44160), broke two ribs and hurt his head when he accidentally crashed to the ground while trying to take down a suspect he was chasing. The October 30 incident was outlined in an Oregonian article (January 17) reporting that the suspect, a teenager, was sentenced to 30 days in jail for "unlawful use of a weapon" (flashing a knife at two officers).

The Chief prompted an angry response from the "union" (see "Rapping Back") when he published what he called the "final" versions of the Taser and Use of Force policies which were drafted last fall (also PPR #58). While the PPA seems to feel that the new policies will get more officers disciplined for failing to think about de-escalation, Portland Copwatch analyzed the policies and found that not much had improved since the previous versions. The policy on Deadly Force is now part of the Use of Force directive, while the post-shooting procedures, which have not been revised yet, will stand alone in a Deadly Force directive. (The Bureau also finally decided to number the various sections of the Directives after years of frustration by anyone trying to identify a certain paragraph in the sometimes pages-long policies.)

The Force policy also:

--creates a new loophole for providing medical care ("when tactically feasible");

--cuts previously-existing specific warnings about why officers should not shoot at moving vehicles;

--improves its language on considering whether a person has mental illness, making it clear that consideration should be part of the "totality of the circumstances" leading to decisions to use force; and

--requires that officers develop skills regarding force, a stronger term than the last draft's statement that the Bureau "expects" such skills to be developed.

The new Taser policy has been renamed "Electronic Control Weapons," which thankfully acknowledges that the stun guns are weapons, not tools, but implies they should be used to "control" suspects, rather than as defense against an active threat. "Conductive Energy Weapon" is a better generic name. The policy also uses the expression "Excited Delirium," which is not a medically accepted term but is used by Taser International to explain why so many people die after being electrocuted. The new draft calls for officers to give a warning "if feasible"; prohibits use for interrogation or torture; and allows use on a fleeing suspect in limited, but loosely defined, circumstances.

The Taser policy also waters down restrictions on using multiple Tasers, and fails to renew previous bans on "horseplay," harassment or "unduly influencing" a person, though it does ban Tasers for threatening or coercion.

The Bureau indicated it will start training on these Directives, which is confusing since the DOJ still has to sign off on them under the terms of the Agreement. Maybe the City is feeling emboldened that the court process is being drawn out, or it wanted to get a jump on things while the four parties to the lawsuit were in mediation prior to the Judge moving the case forward. Judge Simon has promised the community a "Fairness Hearing," which will include live, taped, and written testimony about the proposed settlement. Simon will only sign off on an Agreement after the mediation and Fairness Hearing are complete.

While the oversight mechanisms built into the Agreement do not yet exist-- including a Compliance Officer/Community Liaison to oversee the implementation and a Community Oversight Advisory Board-- the Bureau has been busy making changes. As noted last issue, Captain Pat Walsh is their Compliance Coordinator. Walsh has hired Clay Neal, the former aide to Mayor Adams who helped draft the Agreement, as "DOJ Compliance Analyst." On April 1, the Auditor began searching for "complaint investigators" for the Independent Police Review division (article). And on March 27, City Council voted to expand the mental health "ridealong" unit from one police car carrying a Project Respond worker to three.

It is possible that the community will have a hand in forging the future of the Bureau in a way that reduces violence, protects vulnerable populations (including people with mental illnesses, people of color, dissidents, and poor people). It will require that the City be willing to continually make changes rather than relying on the old trope that "we've already done so much, wait and see how things work before we do anything else."

May, 2013
Also in PPR #59

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.

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