ANALYSIS: Semi-annual Police Review Board Report Continues to Minimize Serious Force
Table of contents
From: Portland Copwatch
To: Christopher Paille, Police Review Board Coordinator
cc: IPR Director Constantin Severe
December 5, 2017
While the publication of the November 2017 Police Review Board (PRB) Report ( https://www.portlandoregon.gov/police/article/664673) on November 29 technically means the Bureau has met City Code's required two reports per year, these reports previously were published in January and July each year. In other words, this report was nearly five months late, with no explanation. Our overarching concern is that once again the PRB seems-- except in the case of domestic violence-- to minimize the seriousness of the use of force and deadly force on members of our community. After hearing reports back from Citizen Review Committee (CRC) members who have sat in on the secretive PRB meetings, at which they said being almost alone in a sea of police officers and being talked to as if they did not understand what was going on, we once again strongly urge increasing the transparency of these proceedings. At the very least, reporters should be allowed to sit in and report on non-confidential parts of the hearings. At best, the hearings would be open to the public since they are urgent public importance. We also note that in three of the 10 cases included in this report, the officers resigned, retired or were terminated, making eight miscreant officers gone in the last two reports.* This leads us to the conclusion that the Portland Police Association's ongoing campaign to demand more officers could be mitigated if they could get control of their officers and get them to stop ending their own careers by engaging in egregious misconduct.
As in the past, we do not agree with the categorization of deadly force incidents as "B" cases, meaning Bureau-only. Obviously these cases involved civilians. In the case involving a person who was knocked off his bicycle and injured by an officer using a patrol car (which we are calling B/C1), members of the Board questioned why it was categorized as deadly force. Had it been treated as a regular case, the civilian would have had the right to appeal the findings (which were that the officer was "In Policy") to the CRC. This is, of course, also true for Don Perkins, the man subjected to police bullets when he was suicidal in February 2017 (B/C2). We've noted elsewhere that Quanice Hayes, the other suspect shot that same day, who police claim was armed, was a young African American man who died from police bullets. The PRB, as it usually does with shooting incidents, essentially took the story of Officers Bradley Clark and Roger Walsh at face value and commended their actions rather than questioning whether Perkins actually reached for a gun. (The Report's author says that the Board felt that when Perkins reached for the gun, the officers were justified-- making it sound as if the PRB was physically witness to the scene.)
In this report, six cases were community-related (C1-C6), two were internal Bureau cases (B1-B2), and two were deadly force cases (B/C1-2). Five cases total involved use of force. One community case (C3) dates back to 2011, and took until late 2016 to reach the Board because the Bureau didn't send it back to Internal Affairs after a civil jury found officers used excessive force against Jason Cox. It is not clear why the "Not Sustained" (insufficient evidence) findings against Officers Jeffrey Elias and Sarah Kelwin were not presented to the PRB-- certainly if they found the force used by those two excessive (including Kelwin's use of a Taser), they might have changed the findings. As it happens, the only officer facing scrutiny, Robert Bruders, was found out of policy for an unreasonable number of punches to Mr. Cox-- but he left the Bureau before the finding was rendered.
The other non-lethal use of force cases had to do with a suspect who was kicked after they fell down while wearing handcuffs (C5), and another person who was hit with a Taser even though they were not exhibiting "active aggression" (C6). The officer in the former case resigned before facing termination, while the second was only subjected to "Command Counseling" because the Board felt the case had "minimal impact" on the Bureau's standing with the public. This is a prime example of how the Board minimizes the force used. (To be fair, three of the seven Board members categorized their suggestion for Command Counseling in a higher impact category, but still let the officer off for having a "positive history.")
We welcome that the Bureau returned to its earlier practice of adding a cover sheet to describe the ultimate outcome of each case. While not consistent, the cover sheet generally shows what led each case to be heard by the Board. The two deadly force cases and the presumed out-of-policy Taser case were required by ordinance to be heard. Six cases went to the Board because the officers' supervisors proposed "Sustained" findings-- though a few allegations were also "controverted" by the "Independent" Police Review (IPR). The last case (C4), which involved an officer arresting a person for trespassing on public property (which the cop mistook for private property), came to the Board because the supervisor found no wrongdoing but IPR, Professional Standards AND an Assistant Chief all controverted the finding. The officer received Command Counseling.
The Bureau-only cases: B1 involved a cop who loaded a weapon on the firing range, and the trainer who accidentally set it off when he was trying to take the gun apart. They received a day off without pay and a Letter of Reprimand, respectively. B2 was yet another officer involved in a DUII. The officer may have been in the hospital when their supervisor visited-- it is not clear because the location is redacted (in yet another ridiculous example of why PCW invented Police Review Board Mad Libs a while back). The DUII was the officer's second violation in seven years, leading some Board members to want to go easy because the officer had won awards and not had a violation for so long. As it happens, we know a lot of people who have zero DUIIs and they are not given guns and the power of law. The officer was only given three weeks off without pay.
In the remaining C cases, one involved three use of force-- but because they were was against someone in the officer's household, they were treated as three counts of "conduct" rule violations (C2). They were: the officer assaulted the other person, the officer grabbed the other person's throat, and the officer slapped the other person's face. We assume this was a male officer and a female victim, but the redactions, again, make it impossible to confirm. The officer admitted to the force used, refused to take responsibility, and even said the complainant "provoked" the violence. Although the PRB recommended termination, the officer retired. The other case also had to do with gender parity issues (which PCW continues to urge the Bureau to train on) in which an off duty officer engaged in sexual acts with someone who had come to a party at the officer's house even though the person had consumed alcohol. That person complained they were not able to consent, went to the hospital and had a rape kit done, but initially faced a 5-0 "Not Sustained" vote from the Board whether the sex was misconduct, while a 4-1 vote found it was unprofessional. Chief Marshman apparently Sustained the first allegation and terminated the officer.
The report covers a total of 21 allegations, 13 of which were proposed
to be Sustained (with Marshman's action making a 14th), three were "Not
Sustained" (ultimately 2), and five were found "In Policy," which is the
Bureau's outlandish finding meaning the officer was "Exonerated" in a
deadly force case. PCW continues to urge all cases to be treated equally
before the Board, with the same range of four findings (including
"Unfounded" which means the facts do not support the allegation) and
ability of civilians to appeal. In a rare occurrence, the majority of
the Sustained findings (10) came from community cases. Quoting our last
analysis: "as we've noted before, the appearance of the sustain rate
being high is mostly because any case with 'Sustained' findings that
could lead to discipline gets sent to the PRB automatically."
Here are a few more details on the three cases where it was recommended or ultimately officers were terminated.
(C1) Four of the five Review Board members said the officer should ask someone before having sex with them, or else they are not fit to be an officer. They particularly noted that the officer could not be trusted to handle domestic violence and rape calls. The fifth member said both parties had credibility issues and having sex with someone who was drunk was not a violation of Bureau policy. The four members recommended 40 hours suspension without pay, based on previous disciplinary incidents with the same officer and a history of poor decision making. One of the most interesting aspects of this case is that when Chief Marshman sustained the first allegation and terminated the officer, the staff of the civilian oversight body-- IPR-- had previously controverted the idea of even finding the officer out of policy for the professionalism allegation. Perhaps IPR staff were the ones recommending a "Not Sustained with a Debriefing" finding.
(C2) There is no indication that the officer accused of Domestic Violence ever faced charges, even though the Washington County Sheriff's Office brought the information about the three assaults to the PPB. The Board also questioned whether this officer should ever respond to DV calls, saying the officer was unfit for duty. Interestingly, a different woman who said her husband assaulted her and the responding officers asked her what she did to provoke him, laughed with the husband during the investigation, described it as "just some drama," and were called "unprofessional" by a witness went before the CRC in October. The Committee proposed a "Sustained" finding for the main officer who acted unprofessionally. Are we seeing a pattern yet?
(C5) The officer who kicked the suspect in handcuffs had captured the
person following a foot pursuit. The officer yanked the person up after
kicking them. The other officers on scene saw what happened, presumably
leading to the three Sustained findings: 1) that the officer used
excessive force (and performed unsatisfactorily), 2) that the officer
did not file a Use of Force report, and 3) the report that was written
was inaccurate. One of the good things to come to light from this case:
As required by the US Department of Justice (DOJ) Agreement, a Sergeant
investigated on the scene. The Chief's office read the Sergeant's report
and turned the case over to the Professional Standards Division (PSD).
The recent report from the DOJ Compliance Officer indicated that much
of the time higher-ups do not send cases to PSD since they feel nothing
will be sustained based on the Sergeants' reports. Because the officer
had no previous discipline, two of the five PRB members only recommended
three weeks off without pay, while the other three recommended
(B/C1) The man who was riding his bicycle had been cited as a "threat" by neighbors of a City park, when he said he would return to their house and shoot them. The person who called 911 followed the suspect, which helped lead the officer to find the cyclist and chase them with the police car. Using the PA system to tell the suspect to stop did not work, so the officer bumped the back tire of the bike-- allegedly at "low speed." Needless to say cars can go much faster than bicycles, they are much larger, and much harder to stop. A detail revealed in the US DOJ's report to Judge Simon in 2016 was not present in the PRB report: That there were "photos of [the] rear of [the] bike under [the] PPB cruiser" (DOJ 2016 status report, page 106). East Precinct Commander Dave Hendrie suggested it was not deadly force and even told Professional Standards to stop investigating, over the objections of IPR. It seems being publicly shamed by DOJ got the case completed-- but the Board voted 7-0 to find the force "In Policy." The logic was that in the totality of the situation, the officer had a "lack of options," and pushing the person off the bike with a car minimized the risks to the public, the officer and the subject (!). There was no apparent consideration that the officer might have called for backup, whether the suspect was actually armed or posing an immediate threat, or acknowledgment that the "minor" injuries could have been much, much worse. Interestingly, the PRB report says the suspect was treated at Adventist Hospital, in contrast to the redacted location in case B2.
The Board made three recommendations, none of which were to stop officers from pushing people off bicycles with their cars. Rather they suggested (A) clarify that Directive 630.05 on pursuits applies only to motor vehicles, (B) to remove the term "ramming" from that policy and add it to the Deadly Force policy, and (C) to define when use of a police car constitutes deadly force-- the PRB did not think this case qualified.
(B/C2) The report explains that Perkins called 911, saying he was suicidal. They also say that while he had a gun, he threw it out of his van when police arrived. The officers claim he was sitting in the van's doorway close enough to retrieve the gun. Officer 1 was trained in both Enhanced Crisis Intervention and how to use an AR-15 assault rifle, which seems contradictory. The officers say they tried to de-escalate the situation but Perkins reached for the gun. The report states that the officers "de-escalated" the use of force after the shooting, which is indicative of the ongoing problem with police using that term to both mean lowering the amount of force used and trying to avoid force in the first place using verbal and physical calming. Officer #2 also said they negotiated and de-escalated. There is no evidence that Mr. Perkins was asked to describe the officers' behavior, which, considering he was shot and wounded, might not jibe with the officers' recollections.
PCW continues to wonder why the Bureau will not print the names of people who've already been identified in the media. IPR lists the names of officers and suspects in cases making their way up to the PRB in its public reports. The information is of great public interest.
(C3) Jason Cox was awarded $635,000 by the jury, one of the largest settlements in the City's history. The officers were trying to arrest him for a DUII. The Board found that Officer Bruders' strikes to Cox's head were unreasonable, and outside training on what to do when someone's hands are pinned under them. It came out at the trial that Cox could not take his hands out because the officers were piled on top of him. The Board voted 4-1 to find the officer used excessive force, with the "no" vote urging a "Not Sustained" finding because the City had told the court the officer was in policy. (!) There was no recommended discipline because Bruders had left the PPB; however, three PRB members said how they would have voted: two would have given 1 day without pay and one a letter of reprimand. It seems Bruders realized his actions were far more serious than the Board.
(C6) The officer who hit the suspect with a Taser three times with no warning was found out of policy, not based on the federal court Graham v. Connor standard, but based on the guidelines in the Bureau's policy. This is a refreshing outcome as the Bureau often promises that Portland's standards are more restrictive than Graham, but we usually see the legal arguments outweigh the administrative (and community) standards. Moreover, the vote was 7-0, meaning all four Bureau members, IPR, a CRC member and a community PRB member all agreed the person only posed a hypothetical threat. Despite the fact that the officer subjected someone to 50,000 volts of electricity unnecessarily, the discipline proposed and imposed was Command Counseling, with only three members of the Board thinking the category should be higher than the lowest possible because there was more than a minimal impact. The failure to issue a warning was found "Not Sustained" because there was a witness who thought they heard a warning given even though the officer and suspect gave differing accounts.
(C4) It is not surprising that the person wrongly cited for trespassing on a sidewalk was a houseless person who was camping near a loading dock. When video showed the person was across the street from where they were alleged to have been, their case was thrown out of court. The suspect complained not only about the arrest but that paperwork and raingear were missing, but those issues were not addressed by the PRB. Because the officer made an error in listing whether the person was on public or private property, the Board felt it was an "honest mistake" and only recommended Command Counseling, asking that the Bureau create a category of "Debrief" that is less harsh than that minor form of discipline. What seems to have been lost on them is that the suspect was made to deal with a court case and have a criminal trespass arrest on his/her record. In other words, there was a serious impact on a community member that should, perhaps, have led to even stronger discipline.
(B1) The officers on the firing range were found out of policy in part because there are rules posted on the firing range that say "always treat a gun as if it is loaded." Incidentally, the bullet hit the floor, and not a person or the community would have heard more about this sooner. Officer 2, who handed the loaded firearm to training Officer 1, was supposed to know not to load the weapon due to "long adhered to workplace standards, sufficient competency and work standards." The training officer had one day suspension without pay recommended because they had no prior discipline and were an "important person" to the Bureau. The other officer had on day suspension proposed (with one PRB member suggesting two days) because they were inattentive and had years of experience and should have known better. Apparently the training officer's status as an "important person" dropped the day-off to a Letter of Reprimand, which the PRB report shows as Acting Chief Donna Henderson "agreeing" with the Board, even though she lowered the discipline level.
(B2) Having spent so much time analyzing these cases, PCW is not going to bother looking back at previous PRB reports to see how many other officers have driven under the influence, but it feels as if there is at least one case in every six-month packet. The officer in this case crashed a car in 2015, leading a State Trooper to find the officer with the smell of alcohol, bloodshot eyes and speaking with a slurred voice. The officer admitted to drinking, and was found to have a .21 blood alcohol level-- which the report notes is "over the legal limit" but not that it is nearly THREE TIMES the limit of .08 (and means that 1/5 of the officer's blood was alcohol). Though the officer was found out of policy for unprofessional conduct, it's not clear what legal ramifications there were (or why Directive 315.00 Laws, Rules and Orders did not apply). A second allegation of failing to report the arrest was found "Not Sustained"-- both because of "extenuating circumstances" (probably because the officer was in the hospital) and because the officer assumed when the supervisor visited that counted as notification. Because the officer has awards, is a "hard worker," showed remorse and agreed to seek treatment, three Board members recommended just two weeks' suspension, while the other three asked for three weeks due to this being the second violation in seven years.
Once again, PCW asks the PRB's semi-annual Reports to consistently include:
--the date of the incident in question (dates were given in just 2 of the 10 cases this time-C3 and B/C2);
--more consistent reporting how the complaint was generated (internally, by a community member, or from another City agency);
--the number of voting members and number of votes (which was done in all cases but C6 and B/C1 where votes were recorded as "unanimous");
--which opinions were from officers, civilians, IPR staff, or Bureau management;
--the gender of all persons involved;
--the names of officers, particularly in cases which have already been reported in the media; and
--more thorough background summaries for all cases, especially in deadly force cases.
As in the past few years, all of the dates the Review Boards were held were listed in the Report.
PCW continues to request that the City and the Bureau recognize the extraordinary power that police hold over the lives and well being of community members, and find a way to allow the complainants, the media, and/or the public to attend Police Review Board hearings. Even if the hearings had to go into "executive session" to discuss confidential matters such as medical records, and if public comment were limited to the end of meetings as a first step, opening the hearings would help build the trust the Bureau keeps seeking to gain.
Our group also objects to the decision that was made, apparently by IPR, to exclude the public from training sessions for PRB and CRC members. Especially since there is frequently a quorum of CRC members present at such trainings, the Bureau should open these up to the public. Who knows, maybe feedback might help improve the trainings.
PCW also asks once more that the civilian pool members hold annual or semi-annual meetings with the public, and be asked to help the Citizen Review Committee hearing appeals when the CRC's workload becomes too great.
Finally, we note here that this analysis, so far as we know, is the first to be published-- because the Bureau once again quietly posted the Report on their website without alerting the media.
Thank you for your time,
*-in the February report, five officers left the Bureau: One was fired,
three resigned or retired before being fired, and one resigned facing 40
hours' time off.
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Posted December 5, 2017