ANALYSIS: 2018's Second Police Review Board Report Continues to Shock the Conscience
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From: Portland Copwatch
To: Christopher Paille, Police Review Board Coordinator
cc: IPR Director Constantin Severe
ANALYSIS: 2018's Second Police Review Board Report Continues to Shock the Conscience
From: Portland Copwatch
To: Christopher Paille, Police Review Board Coordinator
December 27, 2018
Mr. Paille and Chief Outlaw:
Below is Portland Copwatch's analysis of the December 2018 Police Review Board (PRB) Report which was published sometime around December 14. As with previous Reports, there are incidents of shocking behavior which add to the perception that the officers committing acts of misconduct are nurtured through institutional norms, so they should not be looked at as "bad apples." In this Report in particular, there are quite a few ranking officers whose behavior the PRB itself describes as inappropriate for someone who should know better. These Reports are required to come out twice a year and the Portland Police Bureau (PPB) just managed to get this one in before the end of 2018, after the first Report came out in mid-September. The December Report can be found at https://www.portlandoregon.gov/police/article/706721 .
The new Report covers 16 cases heard between July 2017 and June 2018, meaning there is a lot of overlap with the timeframe of the last one. The incidents that provoked at least three cases date back to 2016; only one case summary explains the lag time in the review. While some cases are labeled "B" as "Bureau only," Portland Copwatch (PCW) finds a total of five which involved civilians, including two officer-involved shootings, so we have marked them "B/C." The shootings were (unsurprisingly) found in policy, and both resulted in the suspects being wounded and not dead, for what that's worth. The narrative about the August 2017 shooting of Jesse Brockner (B/C 3) shows bias by the Board, saying for example that the suspect reaching around in his car posed a "deadly threat." To their credit, the PRB requested a debriefing for Officer David Staab, who shot Brockner after a car chase. A similar bias can be seen in the summary of when Officer Ryan Reagan shot Chase Peeples in October 2017 (B/C 4), claiming that Peeples holding out his wallet in a "shooting stance" was likely to cause death or injury to police or bystanders.
No PRB Report would be complete without at least one officer arrested for DUII, in this case the officer also failed to tell his supervisor he was arrested, but only received two weeks off without pay (B2).
Two cases stand out as ones that can make a person feel like wanting to use hand sanitizer just for touching the Report. In one, an officer took home a duplicate hard drive containing evidence of child pornography, keeping it for two years-- but only receiving one week off without pay (B/C 2). In the other, Officer Christian Berge used his position to engage in a sexual relationship with a woman, who provided proof of the officer's inappropriate on-duty texts including photos of his genitals and evidence of him masturbating; they also showed that he loaned his gun to her unlawfully (C5). This case led to an unprecedented 10 Sustained findings, and Berge resigned before being fired.
One officer was involved in two of the cases, apparently threatening a civilian in emails (C2), then intimidating that same person for filing a complaint (C4). The first incident only merited a day off without pay, but the retaliation led to the officer being fired.
Supervisors are revealed to have been found out of policy: one for bullying other officers (B1), another for using profane language in derogatory comments about another cop (B3), and a third made demeaning comments (B4). Another cop was found out of policy for two remarks that were so upsetting, they were completely blacked out in the Report (B5). That officer resigned before facing a week off without pay. Also, an officer of some special status (either a trainer or a supervisor) was given a week off without pay for "working on" a personal firearm for hours while on duty, negligently discharging it but not hurting anyone (B6).
The PRB found two officers had policy violations around pursuits. One started a chase again after it had been terminated, punched the suspect in the face and failed to report it at the time (C1). Chief Outlaw reversed the Pursuit violation and the cop received a Letter of Reprimand. Another officer failed to assess the risk of a pursuit, and failed to follow an order to report about it, eventually using another officer's computer log-in to do so was given two days off without pay (B/C 1).
One officer was given a day off without pay after failing to let civilians know their stolen car had been recovered after the officer got into some kind of dispute with the tow yard (C3).
The final case is hard to follow, but it appears to be about Captain Larry Graham, who sent a list of officers with histories of lying to the District Attorney's office. Whoever the supervisor was used Bureau letterhead and mistakenly asserted that someone else had resigned while under scrutiny (B/C 5). The unnamed supervisor retired before being punished for being unprofessional by writing the letter. PCW labeled this B/C since the officer's contact with someone outside the Bureau led to the investigation.
In addition to the five "B/C" cases, there were six Bureau-initiated cases ("B") which do not involve misconduct against civilians and five community-related ones ("C"). The numbers refer to each kind of case in chronological order throughout the Report.
In the previous Report, five of 24 officers were fired; in the new document it was just one out of 15 (since one cop was the subject of two cases-C4), with two officers resigning (B5 and C5) and another retiring (B/C 5). The most common discipline was one day off without pay (B1, B4, C2 and C3), with other suspensions of two days (B/C 1), one week (B/C2 and B6), two weeks (B2), and one who was recommended for demotion instead received three weeks off with probation (B3). The Letter of Reprimand mentioned above was the only such minor discipline (C1). The two officers involved in shootings had no disciplinary consequences (B/C 3 and 4). Aside from Chief Outlaw over-ruling the board in the demotion case, there were no instances of PRB recommendations being lowered; in fact, in two cases (B4 and B6) the Chief took strong recommendations from just one member of the Board to impose the highest recommended discipline.
In all, the Board considered 53 allegations and found 34 Sustained, 11 Exonerated/In Policy, and 8 "Not Sustained." Discussed below is one incident in which Chief Outlaw inappropriately moved a "Sustained" finding to "Unfounded." As usual, the high Sustain rate (64% this time) is because most incidents are referred to the Board only when someone recommends that finding in the first place. Interestingly, there is no evidence of any case being sent to the Board this time by "Independent" Police Review (IPR), an Assistant Chief, or the Professional Standards Division (PSD) "controverting" (challenging) a proposed finding. Two cases were considered as Bureau of Human Resources (BHR) violations (B4 and B5).
Some of the summaries still do not clearly list how many members of the Board were seated. Five people are supposed to sit on "normal" PRBs while seven sit for deadly force and other serious incidents. A few votes are reported as "unanimous" with no number given anywhere for context. In one case (B6), only four votes are recorded, and in one of two votes about a deadly force case (B/C 4) only six of seven votes are accounted for. PCW continues to urge the Bureau to be clear how many voting members take part and why there is a deviation from the requisite five or seven votes.
In an early analysis of a PRB Report, PCW invented the game "Police Review Board Report Mad Libs," since so much information was redacted we had to make up our own story about what happened. While there are a number of heavily redacted summaries (detailed below), a new facilitator has managed to create what may be the first PRB summaries with no redactions at all. Bridger Wineman wrote summaries for cases C5, B/C 4 and B/C 5 and avoided the use of pronouns along with other allegedly identifying or sensitive information. Except for the last one about the DA's office, those summaries are clear and helpful. The Bureau might also consider using the pronoun "they" which is now broadly acceptable to apply to one person, rather than blacking out what is usually a "he, him or his" in reports about cops gone wild.
PCW continues to encourage the Bureau to change its rules so that at the very least, the civilians who are harmed by the incidents can attend Board meetings, if not the media and the general public. While the recent trend of identifying the dates of shootings has continued, other data are not consistently presented, including the dates of the PRB hearings being absent in all of Mark Fulop's 2018 summaries (although they were included in the Bureau's cover memo).
TWO OFFICER INVOLVED SHOOTINGS: BIAS IN THE BOARD
As noted above, the narratives of both officer-involved shootings reviewed by the PRB showed bias. The published summary reports, added to comments made by civilian members of the Board who have attended, bring into question the supposedly objective nature of the process. Citizen Review Committee (CRC) members who rotate in on serious cases indicate that in general, deadly force cases seem to have predetermined outcomes and that whenever a civilian asks a question they are made to feel as if their input is not valued because they are not officers. (It is to be noted that no CRC member has divulged specifics about individual cases, though they have from time to time talked about the process.)
(B/C 3) In the August 2017 shooting, the Report doesn't say so but Brockner was a suspect in a bank robbery. The summary makes it clear that Brockner was reported to be armed. The summary states that the officer exited his vehicle at the end of a chase "to obtain tactical advantage." This is clearly the officer's interpretation of what happened. There is no mention, as there was in the media, that Brockner crashed the car he was driving. Also, since Brockner had previously "accelerated" his vehicle to "evade" Officer Staab, it is not clear why backup officers were not summoned prior to the crash.
But most disturbing are the descriptions of what led to the shooting. First, that Staab gave commands supposedly to "de-escalate" the situation. It is imperative that the Bureau be clear what "de-escalation" means. While engaging in a dialogue can be de-escalation, ordering someone around does not qualify. Second, that Brockner reaching under his seat, since he was known to be armed, posed a "deadly threat" which met the Graham standard. It may be that a reasonable person could believe that Brockner was reaching for a gun, but it is not hard evidence of an actual threat if the officer states their subjective belief. The Reports should be clear.
With regard to the vehicle pursuit itself, the Board found that Staab balanced the risk of a chase with public safety, again ignoring that Brockner crashed his car at the end of the chase, and again not raising the question of bringing in backup.
The Board suggested the Bureau should always conduct a debriefing, even when officers are found "In Policy" as Staab was. (The PPB continues to use different findings for deadly force cases than every other kind of possible misconduct; the usual term would be "Exonerated.") The cover sheet indicates the idea was sent to the Training Division, presumably not long after the Board met in April. There is no follow up.
(B/C 4) In discussing the October 2017 shooting of Peeples, who was also (it is not mentioned) a suspected bank robber, the Report claims Officer Reagan "prevent[ed] the subject from taking action that could result in death or serious injury." It quotes the Board as saying "Suspect posed a threat of death or injury when Suspect took a shooting stance when Employee #1 said to show Suspect's hands." But there was no threat since Peeples was unarmed and had taken out his wallet. The next sentence said it was reasonable to feel threatened by "what appeared [to be] a weapon," which slightly improves on the previous declaratory sentences.
Oddly, while most other deadly force incident investigations,* including Brockner's, involve at least three or four officers because a number of supervisors usually take control of the scene, only one other officer is assessed for the post-deadly force actions.
One Board member suggested that officers should always make clear they are police officers as a means to reduce shootings. Because Reagan was a uniformed cop in a marked car, the other members did not support the recommendation, but it is "pending assignment" at the PPB anyway.
(C5) The Portland Tribune wrote extensively about Officer Berge in January 2018 after he pleaded guilty to official misconduct. Some of these facts are relayed in the PRB Report. Berge had started a relationship with a woman after responding to a noise complaint about her home in August 2015. He later texted her and started a sexual relationship that lasted nearly two years. When the woman found out he had another girlfriend, she tried to anonymously file a complaint about Berge, but the Bureau eventually found out who she was. As it happens, she applied to be a police officer and one Sustained allegation was that Berge told her to lie on her application.
But the lurid details of his "sextapades," which proved their sexual relationship and included the above-mentioned graphic photos, led to multiple findings that the officer was sending inappropriate texts during work hours. Most of the ten findings were about unprofessional conduct and dereliction of duty (Directives 310.00 and 311.00), though using a police car to facilitate the affair was a misuse of Bureau Resources (Directive 317.40). Lending his firearm to the woman was listed under "Laws, Rules and Orders" (Directive 315.00) and the summary notes that being in a relationship "does not qualify for an exception to a criminal background check requirement for spouses and domestic partners, and was not through a gun dealer." This was one of the items, the PRB Report notes, that led to Berge's official misconduct plea. While he resigned, it is not clear whether his state certification was pulled, which is why it is important that the PRB made note of his outrageous behavior four months after the criminal proceedings; this could prevent him from getting a job with another agency.
(C2 and C4) The officer involved in the threatening emails and subsequent retaliation case made a remark that they were "a cop with a grudge," which is presumably why the incident rose above an off-duty personal dispute in the first place. It is hard to say what triggered the officer as the Report said the civilian "did not allow [the officer] to -------blank----," which is explained in more detail as sending an inappropriate email regarding "---blank--- in the ---blank blank---." Let's say the officer was mad that the civilian didn't allow them to play a video game, and the email was about taking away game tokens in a video arcade. (This is the nature of Mad Libs police reports, if you want us not to speculate, give us more information.)
The officer encountered the same civilian "at a retail store" and mentioned the previous complaint in comments that were deemed "unprofessional and intimidating." The officer was found out of policy for Conduct in the first case, and for Conduct and Retaliation in the second, with a recommendation to "terminate." Chief Outlaw fired this officer.
(B5) In another example of PRB Mad Libs, the officer in this case was reported to have "walked through the ---blank---- while a --blank-- was in progress" in 2016. From context, it is likely this was a precinct meeting room where a roll call was going on. The officer "stopped and -----blanked-- ---, got up and made a comment before leaving the room." The first conduct allegation says the officer said something like "-----blankety-blank blank blank-----," and the second said they "remarked something similar to -----blaaaaaaank----- after ----blaaaaaaaank------." Not even venturing a guess here, but the violations were sent to BHR under Rule 2.02 which prohibits harassment, discrimination and retaliation. The officer admitted to both allegations and, as noted above, resigned. It was their second violation for similar behavior in five years.
This was the one case in which the PRB noted why it took so long to resolve: BHR had the case before it came to the Board. They recommended that BHR meet timelines recommended by the US Department of Justice, which the document doesn't clarify means investigations should be done in 180 days. The Report says this recommendation is "completed."
(B/C 5) Portland Copwatch has had a troubled relationship with Captain Graham, particularly his behaviors at Citizen Review Committee hearings and overseeing protest actions. However, PCW granted Graham a "Spike Lee Do The Right Thing" award for sending names of eight officers who had been found to violate the "Truthfulness" Directive to the District Attorney, as such findings would need to be disclosed under the so-called "Brady rule." Unfortunately, if the person in this case is Graham, while the officers were found out of policy they ultimately did not get disciplined for it (meaning the Chief rejected proposed findings), and the "employee" he said resigned while under scrutiny did not. The Board recommended demotion, but the ranking officer retired rather than face the pay cut (Graham left the Bureau sometime before February 2018). While it is understandable that the Board should be concerned that the ranking officer used Bureau letterhead and sent a subjective letter to the DA, they should have discussed the underlying problems of officers who lie and how to protect whistleblower cops. After an IPR report came out revealing the Bureau has no policy around the "Brady rule," a policy was supposed to be created but none has surfaced.
To be clear, the Board found Graham (or whoever this ranking officer was) out of policy for Conduct in writing the letter, but could not "Sustain" the allegation that his comments about "Employee 2" were willful lies. One Board member disagreed, saying that "Not Sustained" finding was "irresponsible" and asking to Sustain it.
(B/C 2) The officer in this case supposedly took the duplicate hard drive home to help get it to a Detective for use in court. One Board member found insufficient evidence to Sustain a violation of improper evidence handling (Directive 660.10) because the hard drive copy was akin to making a photocopy of a piece of paper. Even if that were true, the officer stored this evidence at home for TWO YEARS. One board member (likely the same one) also said there was no clear violation of the Child Abuse Investigation Directive (640.30) since the officer didn't have the correct software to view the evidence, the other four members Sustained that finding for potentially compromising the investigations. (Also, c'mon, someone who had that hard drive at home for two years probably found a way to look at what was on it.) The Board found the officer knew the actions were not in policy and had a potential harmful effect on the people involved in the multiple cases, and three members asked that the cop be given one week off without pay, which Chief Outlaw did. A fourth member felt there was no willful intent to violate the policy and only asked for two days off. It seems that given the nature of these cases, the officer should have had a much more severe punishment, like going to jail.
The board recommended updating the directive about digital evidence was sent to Professional Standards, it is not clear of the outcome.
ABSOLUTE POWER CORRUPTS ABSOLUTELY, UNLESS YOU GET CAUGHT
Below are details on the three supervisors and one officer who should have known better (who may be a supervisor, but the Report isn't clear).
(B1) The supervisor who bullied an officer used text messages to threaten the officer's reputation. This appears to be related to their off-duty relationship (unspecified), but was found to be "systematic and ongoing" and "blurred the lines between personal and professional," per the Report. Interestingly, the bullying allegation was sustained on a 5-0 vote but three other findings were "Exonerated" (in policy): (1) calling some agency about personal information, which was found to have happened from a personal cell phone and involving publicly available data, (2) requesting a civilian friend drive by the officer's house, which was not done while on duty, so was kosher, and (3) getting employees' birthdays in the Bureau computer, which was determined to be "not confidential." This is troubling since a person's birthday is one piece of information needed to commit identity theft/fraud. A fifth allegation, that the officer shared disparaging information about officers, was unable to be proven by a preponderance of evidence ("Not Sustained") but the Board recommended a debriefing in view of the supervisor's rank. Assistant Chief Wagenknecht agreed to give one day off without pay, recommended by three of the five board members. The other two suggested a Letter of Reprimand based on what they called mitigating factors: that this was mostly personal (uh, it still shouldn't affect the workplace) and the fact of -----blankety-blank-blank-blank-- ---. *Sigh.*
(B3) Witnesses heard both "sexually profane language" and profanity against a higher ranking officer's decisions made by the supervisor in this case. The Board sustained two Conduct findings on 5-0 votes, noting the comments had an "adverse impact" on the Bureau, and that this was the Supervisor's second violation in seven years. They suggested the officer be demoted, which at first was agreed upon by Chief Uehara but then Chief Outlaw changed it to the three weeks off with a year of probation. Incidentally, the Board members were "taken aback" by the profanity which criticized "command decision related to -----blankety-blank----," adding that "supervisors are expected to respectfully ----blank----."
(B4) Although there were six allegations that this supervisor violated the Conduct policy at various times, only one "Sustained" finding came out of the PRB hearing: that the supervisor made a remark along the lines of "--------blank-----" but did not mean to be unprofessional. The Board found it violated rules about harassment, discrimination and retaliation and suggested three possible outcomes. Two members suggested Letter of Reprimand, and two suggested two days off without pay; Chief Outlaw agreed with the one member who suggested one day off. Part of the reason for the variation is that two members also wanted to Sustain the allegation that the supervisor made comments which another officer thought was gender stereotyping, but were outvoted. Chief Outlaw overruled the Board and Sustained that allegation. She also apparently sustained an allegation that the Board voted 5-0 should be "Not Sustained with a debrief," in which the supervisor said "---- blank----" but it was excused by witnesses as being said in frustration, and to be seen figuratively. (We are curious what the statement was. Shouldn't we know what our officers are doing so we can communicate what community expectations are?) There was no question the officer said whatever it was, but the Board felt it wasn't "seriously threatening or acting in a demeaning way."
An allegation which was "Exonerated" indicates the (probably male) supervisor told the (probably female) officer they were physically incapable of doing some task. The Board said that was within training. Taken as a whole, though, it seems as if a male supervisor was making a repeat number of demeaning comments to a female subordinate, and the one day off was a figurative slap on the wrist.
(B6) The officer who spent time working on a personal firearm while on duty and set it off without checking if it was empty apparently took responsibility for their actions. The Board said the time the officer spent with the weapon was "inordinate" and, seeing as the discharge was the second negligent discharge violation in three years suggested three possible outcomes. Two recommended one day off, one recommended two days off, and one recommended a week off. (This was the case where only four votes are shown for a Board that should have had five members.) The Chief opted for the one week off. Apparently nothing was done about the one PRB member's concern about this being the second violation of the same action; PCW suggests not letting this officer handle a gun any more.
The remaining four cases just add to the overall flavor that humanity is sinking fast, and the police are a reflection of that loss.
(B2) Seriously, there were officer DUIIs in the July 2013, January 2014, January 2015, July 2015, January/February 2017, November 2017, and September 2018 PRB Reports, and those are just the ones that popped up from a search of our online analyses. For people who are supposed to enforce the law and set an example, this is very alarming.
Evidence against the officer in this half-year's incident including their admitting to drinking, as well as his failing two breath tests and receiving a citation. The officer also admitted never reporting the arrest to their supervisor, saying they thought the "union" contacting the Bureau (actually, whomever was contacted is blacked out) would suffice. Two Board members recommended a week off, while two others who noted there were two Sustained findings asked for two weeks off. One lone PRB member said that based on the officer's "past performance as a ---blank---- coupled with the totality of the facts" the discipline should be three weeks off. Chief Uehara agreed with the middle ground.
The Board also suggested a change to the Directive on criminal investigations of officers (330.00) which was adopted, making it clear the officer has to inform a supervisor as soon as possible about an arrest.
(B/C 1) The officer who was given two days off for their violations of the Pursuit Directive (630.05) for a chase that started when they confronted a truck driver about dumping and the driver fled. The officer had four Sustained findings against them: For failing to assess the risk of the chase/not updating the progress; for failing to write a report after the Sergeant ordered it done (the officer claimed it wasn't a clear order, leading one of the five Board members to suggest a "Not Sustained" finding); for not filing a report by end of shift as required by the Directive; and for logging in under Officer #2's name to file the report. There was also a "Not Sustained" finding that the officer was untruthful in giving testimony about the pursuit which contradicted witness statement. The Board found (in a 5-0 vote) that the discrepancies were due to "different contexts" so there wasn't enough evidence to Sustain.
Four members recommended two days off without pay, with one asking for only one day. Chief Uehara went with the higher discipline.
(C1) The case of the officer who chased a suspect and punched them in the face resulted in two recommended "Sustained" findings on 5-0 votes at the PRB. However, Chief Outlaw said that the officer did not start chasing the suspect a second time after the chase was terminated, and changed the violation of the Pursuit Directive to a finding of "Unfounded." This is a very curious finding, since the officer somehow caught up to the suspect while driving a police car. Therefore the officer did drive after the suspect, even if it was somehow unintentional, so even if the Chief disagreed the finding might have been "Exonerated"; however, it seems from the few facts presented in the Report (and the 5-0 vote) that the officer violated policy. There were two non-Sustained findings: (1) the officer's failure to report the use of a PIT maneuver (deliberately hitting a car to make it spin out and stop) was "Not Sustained" because the officer's radio wasn't working properly, and (2) the officer punched the civilian in the head while struggling to remove them from a car on a freeway overpass, and said the punch worked to get the suspect into custody. That's nice. It probably would also have worked to lasso him with a rope, but that doesn't make it good police work or something that should be "Exonerated" on a 5-0 vote. The only standing Sustained finding, then, was for the officer's failure to report the Use of Force to a Sergeant, which meant there was no ability to do a contemporaneous investigation. On that basis alone, the other allegations should have been weighed heavily against the officer, since the failure to report was probably a sign they were trying to cover up. The delay caused by failure to report produced the same end result. The Report says the officer "took responsibility" for what happened (the failure to report, not the chase, the PIT maneuver or the punch, presumably) which is why the low-level Letter of Reprimand was recommended unanimously.
(C3) The summary report on the officer who failed to let civilians know about their recovered vehicle is a bit confusing due to redactions. The overall narrative reads "Employee called -----blank- --- Towing to clear a stolen car -----blank blank----- refused to take the report when the towing dispatcher refused to give -----blank blank----- DOB." DOB stands for date of birth, though that is not spelled out in the report nor is it clear why a dispatcher would need to provide that information to police. The narrative then indicates the officer did not go to the scene or help the owners get their car back. The PRB found that the Stolen Vehicles Directive (630.31) clearly says the officer has to follow up even if there is difficulty in communication. The five members also unanimously found the officer violated the Directive on requested assistance (312.00) by failing to go to the tow yard or fill out a report. Because the civilians ended up having to pay a hefty fee, the Board noted this officer had a negative impact on the public and asked Chief Outlaw to give the cop a day off without pay, which she did.
STILL NEED MORE INFORMATION
As we've written repeatedly the PRB's Reports could benefit from consistently including:
--the date of the incident in question
Portland Copwatch continues to urge the Bureau to hold PRB hearings in public, or at least allow enough members of the public in to open the process in a way that will build trust and transparency. The PRB itself should be asking tougher questions, particularly around Use of Force and officers who fail to file reports.
It is interesting how many recommendations coming from the Review Board have led to changes in Bureau policies, especially when one considers the Citizen Review Committee is asked to spend months or years researching recommendations and to get feedback from the Bureau before publishing its findings. PCW commends the Review Board for making the recommendations but repeats that having some kind of public meetings with the civilian members of the PRB might add more useful ideas into the mix.
The Auditor revealed that the PPB does not use its officers' behavior in training to avoid embarrassing them. The officers who are fired, resigned or retired should be used as examples of what not to do so that we stop getting cops who think the rules do not apply to them.
We applaud the Bureau for fulfilling its obligation to publish two PRB Reports in 2018, but hope they will not be spaced so close together or cut it so close to the wire next year.
*- The Bureau refers to deadly force investigations as "reviews" to bolster their argument that civilians can't file complaints or appeals about shooting cases.
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Posted December 28, 2018