ANALYSIS: Semi-annual Police Review Board report minimizes death, limits information (January 2015)

Table of contents
Minimal Analysis of Shootings
Still More Focus on the Bureau than the Community
True Bureau-Only Cases
Still Much Information Missing
Recommendations Noted/Report Relase/Conclusion

January 27, 2015

From: Portland Copwatch

To: Christopher Paille, Police Review Board Coordinator
      Chief Larry O'Dea, Portland Police Bureau

cc: IPR Director Constantin Severe
      Auditor Mary Hull Caballero
      Mayor/Police Commissioner Charlie Hales
      Members of the media
      US Department of Justice and Compliance Officer/Community Liaison
      Portland Copwatch

January 27, 2015

Mr. Paille and Chief O'Dea:

We have reviewed the January 2015 the Police Review Board (PRB) report. As with the last report, we appreciate the new details including the final disciplinary decisions, but are still very troubled by the absence of information that would serve the community better. This time there are two deadly force cases among the 14 Review Board hearings, and it's heart-breaking to note that these cases, that each ended up in the death of a community member, are among the shortest reports of the new batch.

Once again, the Bureau's redacting certain information is both inappropriate and frustrating. Some of the high- profile cases (the two shootings, one case where an officer was investigated criminally regarding his car, and one who faced DUII charges) could not violate anyone's privacy since the officers' names are already known. As we noted in our last analysis, using officers' names serves at least three purposes: (1) it helps make the report read better, rather than running into redacted material referring to "Employee A"; (2) it removes speculation from those trying to figure out who the officers are, and most importantly (3) it lets the community know what the histories are of the people they encounter who are sworn to "protect and serve" them.

To illustrate the ridiculous extent to which these reports were blacked out, here is one example sentence:

"On multiple occasions, Employee #1 [--location/identifier--] at the [--division name/identifier--] while [-- inappropriate behavior/conduct--]." This has inspired us to play a new game, "Police Review Board Mad Libs." We will thus fill in the above sentence as an example. "On multiple occasions, --Officer John Doe-- --snorted cocaine-- at the --beach in Costa Rica-- while --making lewd remarks about Kim Kardashian--."

The blacking-out includes the non-inclusion, or in one case the redaction of, the date the incident in question occurred. As we called out in the last report, this report also obscures pronouns, which prevents the reader from knowing the gender of the officer or community members. It's really not clear what could possibly be construed as sensitive about this information.

The 14 cases encompass 37 allegations, leading the PRB to make 26 "Sustained" (out of policy) recommendations. However, only two of the "Sustained" findings had to do with use of force-- and that was for two officers who engaged in a confrontation while off-duty. As in previous reports, we note here that the seemingly high "Sustain rate" of 70% needs to be tempered by the understanding that the PRB is called in whenever a Commander recommends a Sustained finding.*

Of the 14 cases, only four were categorized as "C" (community member involved) complaints. Significantly, the shootings cases are categorized as "B" (Bureau-only) cases, which makes no sense since clearly a community member was harmed. This is part of the Bureau's ongoing policy to deny those who are shot or their survivors the ability to question police officers' conduct in deadly force cases, and is a practice that should end. The distinction between "B' and "C" cases is also muddied by, for instance, two scenarios where officers mis-used the Bureau's criminal data tracking system for personal reasons, which violates community members' privacy but apparently still remain as "Bureau-only" cases. One of those cases involved an officer who was accused by the spouse of his or her girlfriend (gender not redacted!) of misconduct, yet that was still a "B" case.

Of the 19 officers under investigation, four resigned before they could be disciplined (presumably fired). We continue to encourage the Bureau to note these incidents in case these officers seek to be re-hired by the Bureau (or any law enforcement agency).

Once again, many of the decisions of the 5-member Board, which includes an Assistant Chief, the officer's commander, a peer officer, an IPR director, and a community member, were unanimous, but some of the split decisions underscore the desirability for the Bureau to report which vote was made by whom. In the deadly force cases and one use of force case in which a man's arm was apparently broken, the Board was expanded to its full 7- member strength, adding one peer officer and one member of the Citizen Review Committee.**

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The Review Board appears to have failed to question why Officer John Romero didn't wait for the multiple other officers in the area to assist him before he confronted, then shot and killed Kelly Swoboda on March 12, 2014. Because Swoboda allegedly shot Romero in the hand, it appears that any questioning of his actions was off limits-- further proven by the PRB's taking the extra step of complimenting Romero on his actions. It's our understanding that at least one of the bullets that hit Swoboda struck after he'd fallen to the ground. Since there's no representation for the shooting victim in the grand jury or in the PRB hearings, we need to rely on the PRB to stay neutral and ask tough questions. The brief and mostly un-detailed report does not indicate any such thoroughness. With regard to calling for backup-- the report states that Romero "created a plan" and communicated with other officers, but he still ended up advancing on the suspect alone, getting wounded, and taking that person's life. Past deadly force investigations-- oh, we're sorry, "reviews"-- have examined the making and execution of plans, while this hearing only looked at the use of deadly force and the post-shooting actions.

Though Officer Robert Brown tripped and fell, then used his clumsiness as an excuse to kill 23- year-old Nick Davis, a homeless man, the Board found no wrongdoing in the June 5, 2014 shooting incident. They excused the extreme violence by stating Davis had exhibited "paranoia" before taking a crowbar out and swinging it toward Brown "without warning." The Board supported Brown's claim that he feared for his life, even though his partner, Officer Matthew Nilsen, did not apparently feel the urge to use deadly force. The report minimizes the snuffing out of the young man's life by stating that "the suspect retreated and the threat ended."

The post-shooting analysis in this case is a bit confusing, since it appears to be referring to Officer Nilsen telling two officers to take cover, even though he and Brown were the only two on the scene. When a third officer "took control" on his way to the site, he made sure EMTs were on the way and that officers 1 & 2 (presumably Brown and Nilsen) were no longer involved in the investigation. So it's not clear if Nilsen is always listed as officer #2, or if the "two officers" in the post-shooting narrative means Nilsen and Brown.

All 7 members of the Board found all of the actions around this shooting in policy. As per the insistence of the IPR and the DOJ Agreement, Davis' family now has no right to challenge this finding, which in our minds is a travesty of justice.

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As mentioned above, several cases listed as "B" investigations actually involved community members. While it's understandable to separate out, say, drunk driving allegations (which affect the community but there's no person directly harmed by the police action), it's not clear in other cases why the Community members are not given more of a say in the process. In looking at the eight non-deadly-force incidents involving civilians, we will start with three of the four which were properly categorized as "C" cases.

C1: Two off-duty officers got into an altercation outside of a business (presumably a bar, redaction makes it unknown) and ended up chasing, tackling and punching a civilian, then waiting for on-duty cops to arrive. This was the case where the use of force was found out of policy, in part because they failed to use de- escalation and in part because "even if the takedown and shove [were] appropriate, two of the punches took place after Employee 1 had control." The officers were also found out of policy for getting involved in an off-duty matter when they could have called 911, though one officer made the excuse the person was committing a crime against them by gesturing as though he were pointing an imaginary gun at them, and the other believed that officer #1 was being assaulted. All four allegations, with the exception of officer #2's use of force, had one board member voting for something other than "Sustained" findings. One member also recommended less than the 20 hours' suspension that the Chief ultimately agreed to impose on both cops. (Important note: the backstory about the person pointing the imaginary gun was in the Review Board Coordinator's summary, but not in the facilitator's report of this incident.) This case was properly categorized as a "C" case, and will likely show up as the eleventh use of force complaint sustained since the institution of the "Independent" Police Review Division in 2001. Let's say that again-- in thirteen years, only 11 force complaints out of over 1600 have ever been Sustained.***

C2. As if to prove the point, here is a citizen-driven ("C") complaint in which a man's arm was apparently broken, but the officer was found in policy ("Exonerated"). The narrative is very sketchy, describing that the officer and witnesses heard a "popping sound" when the officer was twisting the suspect's arm, indicating the man (gender unredacted) eventually needed medical attention but that the officer didn't believe there was an injury. (The narrative indicates the man was intoxicated.) The only variance is that one of the 7 PRB members thought the allegation was "Unproven" because the three witnesses' testimony should have been given equal weight to the officer. Two members (again-- were these the two civilians facing off against the 4 cops and the IPR staffer? The two peer officers? We may never know) thought the officer did not follow through properly on getting medical attention to the man and failed to report the injury. However, their recommendation for discipline was the lowest level-- Command Counseling. As the majority found the officer "Exonerated" for all three allegations, no discipline was imposed. It's disturbing how many times there have been incidents where civilians' arms have been broken by what the Bureau calls the "lowest level of force beyond verbal."

Side note: As a result of this case, the PRB recommended that the Sheriffs put audio back on the jail cameras. We've now heard two explanations why the audio was removed-- the first that it was too expensive (which is silly since everyone knows video takes up much more data space than audio), the second, here, that it was not very good quality. But it's pretty obvious that the audio was shut off after the movie "Alien Boy" exposed PPB officer Chris Humphreys bragging about tackling James Chasse, and revealed Chasse's screams as the officers carried his battered body through the facility like a sack of potatoes. The PRB also made a recommendation to get body cameras for the PPB, but it's not clear whether they examined any research such as the fact that the only study most people cite when talking about the benefits of the cameras is the same single study from Rialto, CA.

C3. This community member complaint about an officer being rude and not providing help led to two unanimous**** "Sustained" findings (on Courtesy and failing to assist [312.00]). Apparently there was a six minute long video of the precinct lobby where the officer gave the person the run-around. In part because the officer had received previous discipline, the Board recommended 20 hours' suspension-- with one member suggesting the prior incidents should lead to 40 hours' punishment. In a rare turnabout, the Chief agreed with this lone voice (was it the Commander? Or someone else?) and suspended the cop for 40 hours.

Next we examine three cases that involved civilians involved but were categorized as "B" cases. As noted above, the significance of this administrative decision is that it precludes the civilian involved from being able to file an appeal.

B(C)1. Other officers complained that one cop went out to a burglary call and stayed on the call for 90 minutes while a priority call came in and that cop didn't show up to it. The cop's car was tracked as being a considerable distance away from the site of the burglary for the entire time of the alleged investigation. The PRB considered this "mistreatment of the public," Sustained the finding of "Unsatisfactory Performance" unanimously**** and called for 80 hours' suspension. The Chief agreed. This case was also handled as a "B" case even though both the emergency call and the burglary call involved civilians who, by the PRB's own determination, were harmed by the officer's actions.

B(C)2. An officer lied to get another officer to run a background check on someone for personal reasons in violation of Directives guiding the use of police computers (1226.00). The Board recommended to Sustain the lying allegation and to fire the officer, but because termination requires a higher standard than "preponderance of the evidence" the Board noted they would find the allegation "Unproven" by the "clear and convincing" standard. The Chief took their lesser recommendation and suspended the officer for 80 hours. Although there was also a recommendation for a "strongly worded" letter debriefing the officer about the seriousness of untruthfulness, there is no indication whether the Chief wrote such a letter. This case was also categorized as a "B" case even though the community member's privacy was apparently violated.

B(C)3. This is the case where the spouse of an officer's girlfriend accused the officer of criminal behavior and misconduct, yet the Bureau handled it as an internal "B" case. While the officer was on duty, he/she was visiting the (married) girlfriend, and a fourth party punctured the tires on the cop car. The officer chased and arrested this person for vandalism. But the complaint had nothing to do with the officer conducting (ahem) personal business on the clock, arresting the "vandal" or whatever the spouse raised as concerns. Rather, the officer was investigated for running the names of all three of the other folks (the girlfriend, the spouse and the suspect) multiple times on the police database. The Board unanimously**** Sustained a finding of violating the Computer Technology Directive and called for a letter of reprimand, which the Chief wrote.

Finally, in this category, are two cases heard by the PRB which combined cases involving Civilians and Bureau- only cases. Hearing 1 had both incidents categorized by the Bureau only as "B" cases, while Case 2 included one "C" and one "B" case number.

B/C1. An officer failed to call Child Abuse Team detectives to the hospital, which apparently led to the inability to prosecute a crime, combined with a separate incident where the same officer inappropriately touched another Bureau employee in violation of both the "Discrimination" Directive (344.00) and Human Resources rules. Of six allegations levelled against the officer, all were Sustained unanimously except the question of whether the officer treated the doctors and staff rudely. The report oddly wonders whether the complaints from the hospital staff showed "bias toward law enforcement." (Perhaps they meant bias _against_ law enforcement.) This is another incident where civilians were obviously involved yet it was categorized as a "B" case. This is the officer whose actions are included in our "Mad Libs," above, so it's not clear what action he/she performed on "multiple occasions" that prompted the internal portion of this case. The PRB noted this officer's "lack of moral character and poor decision making." The officer resigned before the Chief could consider the Board's recommendation for 80 hours' suspension for the hospital incident and termination for lying to Internal Affairs about the touching incident.

B/C5. This hearing combined a Bureau and Community complaint against Officer James Escobar, including allegations tied to a criminal investigation of his driving a personal vehicle with no license plates (KOIN 4/14/14). The Community complaint had to do with a person who witnessed Escobar being rude when trying to take a man off of a bus who'd boarded with a bunch of boxes. The allegations included that Escobar did not listen to the concerns of passengers, then told the complainant to "contact Central Precinct" to get his business card. The PRB noted that Escobar had time to get the card of a Multnomah Sheriff's Deputy who'd come on scene and give it to the complainant, but not his own card. While allegations of Courtesy and Identification (312.50) were Sustained in 5-0 votes, the recommended discipline for this incident was command counseling, for a "learning opportunity."

Taken in context, though, it seems Escobar's attitude that the Board called "arrogance and entitlement" were behind his covering up his Vehicle Identification Number, removing his license plates, probably falsifying a trip permit, and repeatedly racking up parking violations. When he could not explain his various violations of the law (except to claim he thought parking was free on weekends in Portland, very not true), the Board voted to sustain three allegations against him and recommend termination. However, because it wasn't clear whether he used his job as a cop to ask the meter reader and tow truck driver if he could pay the fines and not tow his car, the allegation of Misuse of Position (313.00) was found "Unproven." Officer Escobar resigned before Chief Reese could fire him.

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The above list leaves only four cases from the PRB report which actually are internal cases. The first two re- enforce our ongoing call for the Bureau to conduct gender parity training similar to the institutional racism training they're offering all officers. There have been so many incidents of sexual misconduct over the years it seems the time has long passed for such a training to begin.

B1. A supervising officer admitted to making "sexual and derogatory comments regarding women" over the course of months, though he (we assume) couldn't remember four of the eight occasions recalled by witnesses. In one instance he was relating some kind of inappropriate personal anecdote in a room with children present, and defended himself by claiming he was using the story as a "teaching moment." While one board member suggested a demotion (and one suggested only 20 hours because of the supervisor's "good performance in the community"), the majority suggested 40 hours suspension, which the Chief upheld.

B2. Another officer apparently made inappropriate gestures and remarks and touched another officer. However, the report makes it unclear by reporting the officer "admitted to performing the gesture known as a --- - --." Another employee supposedly asked to see "the joke" 2-3 times, leading one member to vote against Sustaining the complaint while another felt there was not enough evidence against the cop. The Sustained finding passed with three votes-- this is one instance where knowing if the two outliers were civilians or officers would shed a lot of light on the process. More significantly, like the officer in Case B/C1, this officer was found to have lied to Internal Affairs, leading to a suggestion to fire him (again, we assume the gender). The officer, who also received an "Unproven" finding on an accusation of retaliation against an cop who complained another officer used profanity, resigned before discipline could be implemented.

B3. An officer tested positive for steroids during a random drug test, leading to a unanimous**** "Sustained" finding of violating the "Drug/Controlled Substance Use" Directive (316.10). The officer resigned before the Chief could follow the recommendation to fire him/her. The Board recommended updating the Directive to include the words "pro-hormone" and "incumbent on an officer to know what is inside the bottle." We continue to join the chorus of voices who think drug tests should also be administered after a deadly force incident, in the same way a truck driver or fork lift operator would be tested after causing a death on the job.

B4. Officer Kent Scott was found out of policy for his off-duty arrest after speeding/reckless driving and driving under the influence on February 18, 2014 (Oregonian, February 19). Officer Scott tested positive-- the PRB report says his level was ".015" but that would be way below the .08 level required to convict. Given that Scott admitted to drinking 6-8 shots of whisky and three beers, it's more likely that was a .15. The PRB unanimously**** voted to sustain violations of the Conduct and "Laws, Rules and Orders" Directives (310.00 and 315.30). Because the officer expressed remorse, four of the five recommended only a 40 hour suspension, which the Chief administered. The other member recommended 80 hours, though the report refers to the two recommendations as one work week and two work weeks-- which are not consistent with other discipline timelines of the past or present.

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We continue to recommend the PRB's reports should include:

--the date of the incident in question (included only in one case here other than the deadly force cases)

--whether a complaint was generated internally, by a community member, or from another City agency

--the number of voting members and number of votes (though this report shows some improvement on this matter)

--whose opinions are whose; that is, were the majority all officers and the minority all civilians?

--the gender of all persons involved

--the names of officers, particularly in cases which have already been reported in the media

--background summaries for all cases (this is being done in some cases, but not all, yet many of the included summaries are threadbare).

We appreciate once again that all dates the Review Boards were held were listed.

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We are looking forward to seeing the Bureau's tracking list of all the recommendations it receives, including those from the PRB. We hope that list includes the status and follow-up to be sure any changes are instituted and continued. In our last analysis, we recommended that the PRB keep its own list of recommendations and the progress. We also hope that the PRB's recommendations will come forward in a public forum so there can be discussion before the Bureau adopts non-fully-formed recommendations.

In terms of the Report itself being released and discussed publicly, it's not clear why these reports have, since they were instituted years ago, been posted quietly to the Bureau's website without a news release, public notification to interested parties, and/or a presentation to City Council. Because the PRB's work is done behind closed doors, these reports are the only insight the community has into the discipline process (other than the occasional Citizen Review Committee appeal hearing, about 6 per year versus the 25-30 PRB hearings).

Once again, we are thankful to receive this information, but continue to urge the Bureau, the PRB itself, and the City to change the process so that it is more transparent and open-- buzzwords we're hearing a lot from the new Chief.

Thank you,
dan handelman
--Portland Copwatch

* The PRB also meets if a finding is "controverted" by the Bureau's Professional Standards Division or the Independent Police Review Division.
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** And for some reason, the question of post-shooting performance in the Kelly Swoboda shooting lists only 6 members voting for a finding of "In Policy."
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*** Although six other Force cases listed as "Bureau" cases also were sustained in 2008-2010.
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**** Since the PRB is able to function with less than its full membership of 5 or 7 members, the PRB reports should list how many members were present and voted rather than writing "unanimous" for the vote counts.
back to text-1st [C3] 2nd [B(C)1] 3rd [B(C)3] 4th [B3] 5th [B4]

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Posted January 27, 2015