ANALYSIS: Semi-annual Police Review Board report reveals little has changed (January 2014)

Table of contents
Deadly Force Incidents Still Hardly Reviewed
Internal Over External, As Ever
Fewer Redactions... Because There is Less to Black Out
Repeated Behavior Noted and Not
Good Policies and Recommendations
proposed template for PRB reports

January 16, 2014

From: Portland Copwatch

To: Christopher Paille, Police Review Board Coordinator
      Chief Mike Reese, Portland Police Bureau

cc: IPR Director Constantin Severe
Auditor Lavonne Griffin-Valade
Mayor/Police Commissioner Charlie Hales
Members of the media
Portland Copwatch

Mr. Paille and Chief Reese:

Looking at the Police Review Board (PRB) report released in January 2014, we once again have concerns and comments similar to ones we raised about the previous two reports. The new report covers 17 cases, including six shooting incidents, and continues the trend of not having enough information. Even when the next PRB report is slated to be released in July, with new parameters outlined in the ordinance passed by City Council on January 8, we feel the reports will not contain sufficient information. (We've included our proposed list from last July and indicated which of the items are now required under the ordinance.)

In total, the 17 cases include 45 allegations, only 18 of which were recommended to be sustained (found out of policy). This 40% Sustain rate seems impressive, but when one considers that the 11 non-shooting incidents were probably sent to the Board because the Commander had already recommended that finding (coupled with discipline of time off or termination), the report underscores how the disjointed oversight system does not build community trust. Only 2.9% of community allegations investigated by Internal Affairs were sustained in 2012.


The six shooting incidents covered in the report are: Billy Wayne Simms (7/28/12) on pp. 12-14, Joshua Baker (9/29/12) on pp. 15-16, Michael Tate (8/21/12) on p. 17, a teen who was wounded (7/18/12) on pp. 20-21, Santiago Cisneros (3/4/13) on p. 33, and Merle Hatch (2/17/13) on pp. 34-35. But you wouldn't know the names or dates by reading the report, nor in most cases would the circumstances reveal anything to the public about what happened, nor what decisions officers made leading up to, at the time of, or after the shooting that led nearly all of the PRB votes to declare all the actions "in policy."

Interestingly, one officer was found out of policy in the Simms shooting, which occurred at a gas station near a stack of propane tanks, with his car driving away from the officer onto a busy street-- which it ultimately crossed and then crashed into a house. The PRB, according to the report, commended the officer for his great aim (all six of his gunshots hit the car) and for taking into account the backstop (which it does not mention was a busy street and a residential home). Amazingly, the vote was split only on whether to debrief the officer-- three members wanted to do so, and four did not. Since deadly force cases are heard by four Bureau members (an Assistant Chief, the officer's commander, and two peer officers) and three non-police members (the director of the Independent Police Review Division [IPR] and two civilians from a pool of about 20), it would be interesting to know which votes were which without making assumptions.

The operational planning was also found in policy but was requested to be debriefed due to lack of communication and planning; furthermore, the senior officer on the scene was found out of policy for failing to foster these key ingredients of the incident, which led to "on the spot" decision making. It's good to recognize the supervisor's role in how Simms' death unfolded, but it was not the supervisor who pulled the trigger amidst various flammable tanks and in a heavily populated area, taking the young man's life. This case is definitely one where the final discipline imposed would be of great interest. (The supervisor was recommended to receive "command counseling.")

It's discouraging that the two shootings from 2013, both of which ended in the deaths of people in mental health crisis (Hatch and Cisneros), reflect very little discussion by the PRB. In fact, someone told the Board that "nothing could have been done" before Cisneros retrieved a shotgun from the trunk of his car. This seems to counter the concept of decision-point analysis of officers' actions to see whether they could have made other choices. No questions seem to have been raised about how Cisneros, a military veteran, missed hitting either officer with his shotgun blasts at extremely close range. The Board was allowed to hear the officers' emotional broadcasts over the police radio system, but Cisneros' call to his mother was not recorded so could not be used. And, of course, no civilian witnesses are allowed at the hearings so the mother could not tell the Board what she heard.

In the Hatch incident, there is absolutely no discussion on any of the actions analyzed by the Board, which is outrageous in a case where the "weapon" turned out to be a broken telephone receiver. The only analysis is a recommendation that AR-15 rifles used in low light situations be given better "optics" including a red laser dot (presumably to "light up" the suspect). Thus endeth another life of a man in crisis.

The Baker incident includes a comment from one PRB member about the fact that police fired 17 shots and did not hit the suspect. (The Oregonian reported on October 10, 2012, that Baker texted his girlfriend he'd been shot in the head, but perhaps the Board did not have this information.) Board members excused the fusillade by saying the officers "considered" the backdrop and changed over to "less lethal" weapons after using their firearms. This incident occurred just weeks after two New York officers hit nine bystanders near the Empire State Building. Topping off the skimpy report is a note that one officer was found in policy for use of SERT and the Crisis Negotiating Team, but there is no explanation for the finding.

In the incident with Tate, he jumped out of a second-story window while Detective Travis Fields shot at him. Fields was doing support work for Washington County Deputies and federal marshals. In this case, the Board called for debriefing of the officer and for the operational planning and post-shooting actions. They noted there was not enough communication ahead of time, no plan of action if Tate were found in the apartment (where he was), and no action by the lead officer (not under the PPB's jurisdiction) to control Tate's hands. This is one of many cases that raises questions about the PPB working with other agencies in situations where deadly force is used, but again the PRB has no suggestions on this recurring issue.

The teen was shot after he allegedly was known to have a weapon on him, which he did not at the time he was shot in the back while he was running away. This is not a very different scenario from Aaron Campbell, except that the teen lived. However, the PRB found all the officers' actions within policy, even though they had questions about the officer firing from a "low ready position." Confusingly, there's a comment about how officers "slowed things down" and called in the K-9 unit; the story as related to the media was that the teen ran from the car and the officer shot at him while he was running, so it appears they are referring to "slowing things down" after the teen was shot.

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Among the 11 new cases not involving shootings (which trigger automatic reviews), there are 28 allegations, only 6 of which arguably have to do directly with an on-duty officer's interaction with a community member. A possible seventh allegation in an incident in which an officer escalated a confrontation with a person in mental health crisis by hurling insults and fighting with the man was removed from consideration for reasons not explained in the report. What's comforting, in this case, is that the officer was found out of policy for not following procedures around use of force and the inappropriate behavior, though the one alleging excessive force was "unproven."

The other three community-related cases similarly did not result in recommendations to discipline officers for the kinds of behavior that breeds bad feelings. One of the cases alleged improper use of pepper spray, probably during a protest action. The PRB referred to the use of pepper spray as a way to "de-escalate" the situation because an officer had previously used a baton. Since pepper spray is both extremely painful and potentially deadly, this is an indication of the pro-police bias of the Board. The allegation resulted in a proposed "Exonerated" finding. One member thought the officer was out of policy because of the impact on the public. Oddly, the vote was 4-1; when Use of Force is considered by the PRB, seven members are supposed to be seated.

The other two community member cases have sustained allegations around property procedures (pp. 26-27) and failure to write a report (pp. 30-31), which while serious, are also mostly administrative. In one of these two cases, the officer was also found out of policy for being untruthful, so he/she was recommended for termination (although an allegation of this officer interfering with officers from another jurisdiction was found "Unproven.")

As we wrote in July: "This continues the trend that indicates the Independent Police Review, Internal Affairs and Police Review Board system take internal complaints more seriously than those presented by the community. The IPR's annual reports bear this out in showing multiply more Bureau-initiated complaints sustained than Community-initiated ones, beginning with a far larger percentage of the Bureau cases being investigated in the first place."

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While we previously raised a concern about how much information was being blacked out (or "redacted") in the PRB reports, such redactions are less prevalent in the new report. Unfortunately, that is in large part due to the fact that many of these reports do not include background information, discussion summaries, or other details that led to the previous censorship.

As with the last report, the dates of the incidents were only listed in two of the cases. However, the dates of the review board meetings are all included, an improvement over last time's 9 of 13 ratio.

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In a few cases, officers were recommended for discipline for behavior they had previously exhibited. One officer was recommended for termination for the way his reckless behavior endangered other officers, despite repeated attempts to retrain, discipline, and rein him in (pp. 10-11). It is notable that the policies violated-- foot pursuit, unsatisfactory performance, and inadequate investigation-- all have to do with internal concerns of the Bureau, and were not apparently raised by the civilian involved in the incident. The above-mentioned incident about property procedure, the officer apparently destroyed evidence before a Measure 11 crime had been heard in court. The officer apologized, knowing he had done wrong, but despite his having a previous record for a similar "mistake" was only recommended for 10 hours' suspension.

In other cases, officers were found out of policy for issues that could be considered patterns at the PPB. One officer was found out of policy for on-duty unprofessional conduct and leaving his district without permission (pp. 1-2)-- similar to a case reported in the last PRB documents. There is no recommendation to remind officers of the importance of being where their commanders have instructed them to be. Another was found out of policy for Driving Under the Influence of Intoxicants (alcohol), an issue we identified in our July analysis as too prevalent.

And while not exactly the same behavior, the officer found out of policy for making inappropriate remarks about another officer's perceived sexual orientation and other crude remarks (p. 32) reminds us that the officer training on gender equity we've been urging the Bureau to conduct for years should address LGBTQ issues as well. (The officer in this case was recommended to receive a Letter of Reprimand.)

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We often are accused of being too critical about police behavior and decisions. We want to recognize that in the case of Officer Joseph Hanousek, the PRB did the right thing by continuing to examine his conduct despite the fact that he had resigned from the Bureau. As is noted in the report, the officer could seek future employment elsewhere and it is useful for his file in Portland to paint a complete and accurate picture. Hanousek was recommended for termination after he dropped his gun "carelessly" while off duty, then lied to investigators about the noise being a backfire, as well as using the Police Data System to run his neighbor five times in a personal dispute.

Unfortunately, the allegation about misuse of police computers wasn't combined with an allegation about using one's position as an officer in a personal dispute, though that allegation was applied to the DUII officer. That officer was found within policy because he claimed he had just told the citing officer he was law enforcement as "a matter of course," not to expect special treatment. (Several cases that have come up before the Citizen Review Committee in which officers seem to be using their job to influence personal confrontations have, like in Officer Hanousek's case, not been investigated as such.) The Board wisely recommended that some training be done about reasons and ways to identify oneself as an officer without it being done as a threat (against a civilian) or an excuse (when facing possible police action).

It is also good to read that several officers, including Captain Mark Kruger, appeared before the Board. It has been widely publicized that Kruger's commander, then-Assistant Chief Greg Hendricks, told Kruger not to attend. We still believe that to make a fair process, civilians or their survivors/representatives should have a role in the PRB proceedings, but it seems to make sense that the officer should attend given the opportunity.

There is also a wise recommendation that when officers get promoted, they should be fully trained to step into the roles they are adopting, as well as a request that PRB members have access to photos and audio recordings before the hearings (p. 14).

One recommendation is quite confusing, about the "changes" to be made to property/evidence handling a nd proposed changes to Directive 660.10 (p. 27). This is another example of how the reports could be much clearer.

And, just to keep up our reputation, we have to express a concern about the PRB asking for an officer's hi story of commendations to go along with their history of discipline. The history of discipline could reveal a pattern, and obviously should influence whatever discipline is recommended if the officer is a repeat offender. However, if an officer has been commended previously that does not take away from any misconduct he or she might commit.

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Below is a list of what we suggested to you last July should be in all PRB reports. Indicated beside some items are the letters IPR, indicating that IPR's new City Code, adopted by Council on January 8, requires these be added to the reports. We hope the PRB will consider adding all of the other items on this list even without a mandate to do so.

We would suggest, at minimum:

--/Date of incident/
--/Type of Review Board/ (e.g. deadly force, hospitalization, contravened
      finding, or discipline review of "sustained" finding)
--/Type of case/ (Bureau or Community)
--/Number of board members present and voting/, and the make-up of
      those numbers (especially when the numbers diverge from the 5-person
      panels considering discipline or 7-person ones on force cases)
--/Indication of who is writing the opinions/... Assistant Chief,
      Peer Officer, IPR staff, or community member? (since no names
      are attached, it seems unusual this information is not included)
--/Date of review board hearing/
--/Summary of alleged misconduct/             (IPR: Brief factual summary)
--/Summary of training and IA analysis/
--/Final discipline administered by Chief/Commissioner/
      with explanation if it differs from PRB's recommendation             (IPR)

These would be in addition to what is generally already included in the
reports, which are:

--/List of individual allegations/             (IPR)
--/Directives possibly violated/
--/Vote tallies and explanations for proposed findings/
      (including minority opinion)             (IPR)
--/Vote tallies and explanations for proposed discipline/
      (including minority opinion)             (IPR)

            (IPR also added, and PCW supports:)

--Summary of discussion             (IPR)
--Training and policy recommendations             (IPR)

As we have said before, these reports provide invaluable insight into our accountability system. We continue to seek a system that is clearer, more transparent, and more responsive to the community it serves. We encourage the Bureau to publicize when the reports have been uploaded. It seems with the Department of Justice watching the Bureau's outreach to the community, such communication should be offered without prompting.

Thank you again,
dan handelman
--Portland Copwatch

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Posted April 21, 2014