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City Reverses Plans to Institute "Ten Times 48-Hour Rule" Via
Policy,
After first dropping their policy reviews to a trickle (PPR #70) and bringing back the process to include public input periods before and after proposed changes are made (PPR #71), the Portland Police Bureau (PPB) so rapidly increased the pace of reviewing their "Directives," it has become difficult to keep up. In June, they set four separate deadlines for feedback, with four more in July-- including a major overhaul to a 24-page Use of Force policy (1010.00) released on July 4 weekend, giving just 2 weeks to respond. Along with that policy, the Bureau's proposed revisions to the policy on investigations of deadly force (1010.10) included a shocking update. The new version replaced the long-reviled "48-hour rule" (which gave officers two days to respond to Internal Affairs questions) with a policy putting off such interviews until the Grand Jury process ends-- something that often takes at least three weeks, or ten times as long. Luckily, the community pushed back and in August, City Council voted to pull the new Directive in favor of one calling for quicker compelled interviews. Here are some issues around the process and content of policies posted since April.
When the Force and Deadly Force Directives were posted with two weeks' notice, Portland Copwatch (PCW) authored a community letter along with the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC) and other groups asking for more time to comment. Chief Marshman responded that the Bureau had been in discussions for nine months, since October-- when the Portland Police Association (PPA) contract was adopted deleting the 48-hour rule (PPR #70). Talks involved the US Department of Justice (DOJ), the Compliance Officer/Community Liaison (COCL) and Multnomah District Attorney Rod Underhill. An AMAC (/PCW) news release then argued against the institution of the "new 48-hour rule" embedded in Directive 1010.10. This led to the Oregonian's website (July 13) revealing Underhill wrote a memo in March saying compelling officers to testify before the end of a criminal investigation threatens his ability to prosecute. Never mind there has not been a criminal prosecution for an officer killing someone in this County since 1969. The O also revealed "Independent" Police Review (IPR) Director Constantin Severe called for the City to work around the DA's analysis to avoid losing community trust. The National Lawyers Guild opined the court case being cited by the DA does not offer cops "transactional immunity." That is because State v. Soriano is about a person compelled to talk to a Grand Jury. Thus, if Internal Affairs (IA) compels testimony and walls off their deadly force investigation from the DA's office, immunity would not be an issue.* The DOJ flipped on this question, after twice telling Judge Simon officers must file reports before they go off shift after using deadly force, now claim-ing Oregon law requires those reports to be written by someone else (!) or done after the Grand Jury is over (!!). Due to the outcry over the City's backtracking, Mayor Ted Wheeler initially proposed taking an alternate version of the policy, requiring administrative interviews within 48 hours, to a judge to decide on its legality. At a five hour hearing on August 3, it was revealed it took six weeks to interview the officer who shot Terrell Johnson in May (article). Nearly everyone testifying told the Mayor to institute the policy without the judge's ruling. On August 9 and 24, Council voted 5-0 to (a) ditch the "new 48-hour rule" and (b) adopt a stronger policy-- huge vic- tories for the community. The PPA was absent, but accused the Mayor of violating their constitutional rights in a July 21 post to their Facebook page. The Force policy (1010.00) was overhauled to include parts of other Directives on particular weapons, After Action Reports and Crowd Control. Admirably, the first section is now about de- escalation. Unfortunately, the Bureau uses that term to mean two things: using verbal /physical methods to lower the likelihood a confrontation will end with violence and officers using less force on a person already being subjected to force. This should be called "mitigation of force" so officers do not keep thinking moving from a Taser to pepper spray is "de-escalation." Exceptions remain for officers to precipitate force by using actions not approved by the PPB, saying cops may do so with "substantial justification." The Directive also still refers to "excited delirium"-- not a medically accepted term, but a vague syndrome Taser International (now Axon) uses to explain why people die when struck by their allegedly safe electroshock weapons. The cover memo on the "final" version reveals the PPB took "excited delirium" out of the policy but the DOJ made them put it back in. The rush to finish these crucial policies was frustrating because they had not been put up for review since 2015. It was a mild win for PCW to be referred to as "an astute responder" in the PPB memo outlining changes to the Force policies, acknowledging they had mistakenly allowed for the release of a shooting victim's criminal history, but removed that provision based on our comment. In July, PCW commented on its 100th unique policy.
Eleven policies mostly around discipline were posted just before Memorial Day weekend, with a 30 day comment period. The Directive (336.00) guiding the internal Police Review Board (PRB) did not make the process more transparent, still lacking provisions for a complainant to attend the secret hearings. Other sections over-emphasize the confidential nature of the Board, making it less likely the 16-member civilian pool will ever make meaningful presentations to the public about the process. The Bureau continues to give the Chief a say on civilians who sit on the Board (337.00), despite City Code making it the Auditor's responsibility. New prohibitions keep officers from sitting on the PRB if they are under investigation or have been found guilty of misconduct within 1-2 years. The procedure to investigate low-level policy violations was overhauled following changes to the IPR ordinance (PPR #71), turning "Service Improvement Opportunities" into "Super-visory Investigations." Directive 331.00 expands their use to include misconduct that could lead to the two lowest forms of discipline. Fortunately, after an officer has one Supervisory Investigation based on a policy, a second violation triggers a formal investigation. That said, such misconduct should be labelled "non-disciplinary complaints" so complainants and officers know the stakes are lower than in formal complaints. The PPB included some PCW suggestions in the Internal Affairs Directive (330.00) such as checking officers' complaint histories when conducting investigations. Directive 332.00 (Administrative Investigations) implies deadly force investi-gations will be limited to just two outcomes: "In Policy/Not Sustained" or "Out of Policy/Sustained." The nuance of other nationally accepted findings, "Unfounded" (the evidence does not support the allegation) and "Insufficient Evidence" (called "Not Sustained" in Directive 335.00-- also posted in June) should be available in Deadly Force cases where it's sometimes the officer's word against a dead person's. In a new develop-ment, the Directive allows IA to attach proposed findings to their investigations-- previously left only to the officer's supervisor. Council also gave IPR this ability in August (p. 3).
Following a City resolution to limit cooperation with immigration officials, the Bureau rewrote its policy on immigration enforcement (810.10) to prohibit cooperation in many circumstances. Example: "Members shall not honor or comply with federal immigration detainer requests." However, the policy still contains loopholes such as providing traffic control for federal agents and aiding with "controlled substance arrests," which PCW pointed out could include marijuana busts. One positive addition, which we urged the Bureau to also add to the Profiling Directive (below), was to prohibit surveillance "based solely or primarily on... national origin or immigration status."
In its changes to the anti-profiling Directive (344.05) the Bureau failed to re-insert language from a previous iteration prohibiting police action based on personal characteristics (such as race) instead of behavior. They left in place language from the inadequate state law on profiling (p. 11) saying police action is prohibited based "solely" on such characteristics. On July 24, after four years of our asking the Bureau to release "red-line" versions of policies, they posted the Discipline Guide policy (338.00) with most insertions and deletions properly noted. While still requiring line-by-line review to fix mistakes, this is a small victory in the struggle to make this process easier for public participation.
* ideally this would be done by IPR or a similar civilian agency; IPR can't currently compel officers to testify due to the PPA contract. |
September, 2017
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Portland Copwatch Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.
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