COMMENTS ON CHANGES AND PROPOSED CHANGES TO PPB POLICIES
from Portland Copwatch
October 22, 2012

To Chief Reese and the Portland Police Bureau:

Before getting to the specific comments about the recent policy changes you announced and drafted, we want to thank you for asking for public input, but urge you to wait before finalizing any new policies until the terms of the US Department of Justice (DOJ) agreement are in place. We do not want the federal court receiving the agreement between the City and the US government to be given the impression that because these changes are being made or proposed, there is no need for oversight, intervention, or further community involvement. We have seen the Bureau act this way repeatedly in the past when under scrutiny, making minor changes to policies and then asking the investigating body to hold off on judgment until there is time to see how the new changes work. Now that the PPB has been found to engage in a pattern and practice of excessive force, such shenanigans are no longer to be tolerated (not that they ever were acceptable to begin with).

In addition, there are many other Directives which need attention, such as the Medical Aid directive, which have been brought to your attention by the Citizen Review Committee, the OIR Group, the AMA Coalition for Justice and Police Reform, our group, and others over time which we hope will be addressed as part of the DOJ agreement.

One other general comment: For years, we and others in the community have begged the Bureau to number each subsection of the Directives separately to make it easier to refer to different areas under examination. (For example, all 14 sections of the Application of Force policy are labelled "1010.00.") This would be an excellent time to begin making such a change.

CRISIS INTERVENTION TEAM

We support the idea of a hybrid CIT model that includes all officers being trained but also specific skilled members being an "on call" CIT Team, with the caveat that the existence of such Teams should not relieve members of their responsibility to de-escalate and use their own training to resolve situations without violence. Jose Mejia Poot was shot when the second set of officers came to the mental hospital he was in, after the first set which included a CIT-trained officer had gone off duty. Nobody wants to see a repeat of that scenario.

We called for such a hybrid approach after the Portland Tribune began urging the Bureau to discontinue training all officers in favor of the "Memphis model" of CIT Teams only: http://www.portlandcopwatch.org/PPR53/CIT53.html

FORCE POLICY

In the proposed Directive on "Application of Force," we have numerous concerns. Overall, the discussion of the "Graham v. Connor" constitutional standard continues to imply that the officers will be allowed to use the maximum force recognized by the courts, rather than more strongly emphasizing the de-escalation of situations or use of less force than is legally allowed. While such language is incorporated into the proposed directive, it is undercut by these other assertions.

Similarly, the reference to the "Levels of control" that the PPB previously used to teach force to officers has been removed, so while vague "totality of the circumstances" language guides the Directive, there is no guidance on the upper level of force acceptable to the Bureau. Such limits should be re-inserted into any new or revised Directive.

One specific example of what could be changed is the sentence in the preamble that says "These Bureau standards require officers to think well during confrontations and to work diligently toward applying, when practical, less force than the maximum allowed by the constitutional standard and minimizing or avoiding force altogether when possible." If that sentence were to start with the concept of minimizing or avoiding force, rather than make it an afterthought of "work diligently toward," the Directive would be more clear and strong.

We also note that while the Taser Directive calls for a Sergeant to come on scene, the Force Directive does not. We believe it is more important for a neutral civilian investigator to come to the scene to avoid personal relationships contaminating the investigation, but if the Bureau is claiming this policy as a remedy to the DOJ, it is curious that it is missing here.

"Policy" Section

We have always been troubled by the language in the Directive, retained here, that says "Duty may require members to use force to accomplish a lawful objective." If the point is to have officers take responsibility for their actions, the language should not blame "duty" for decisions the officers make. "When no alternatives appear to be effective, officers may choose to lawfully use force to accomplish a lawful objective" would be more clear and accurate.

While it is clear that a phrase added here about people in mental health crisis, it should be noted that by stating incidents involving such persons need to be "resolved with as little reliance on force as practical" implies that all other persons are fair game for maximum force. Thus, this section should be clarified.

"Constitutional Standard" Section

It is not clear why the various factors of the "Graham" standard have been re-arranged; we hope that it is not to imply which are most important, as "impact of the person's behavior on the public" has been pushed down from second to second-to-last position. Having attended a few briefings by the City Attorney, we assume this was done to replicate the mnemonic "START-IT" acronym being used to teach these standards.

We also hope that lawyers (who are more schooled on this information than we are) will weigh in on the use of the words "immediate threat" as opposed to "imminent threat." As discussed in the Taser directive, below, we have grave concerns that officers use force when there is no actual danger to themselves or others and want to be sure the language is accurate and clear.

"Bureau Standards" Section

This section asks officers to "consider" de-escalation and force options, but not to decide which are more desirable and appropriate. It is commendable, though, that the Bureau demands that the officer describe his/her decision making process when reporting on the use of force.

"Procedure" Section

We hope that directions given in Directive 940.00 (After Action Reports) include the now-deleted details about supervisors filing After Action Reports when people are admitted to the hospital, forwarding those reports to Internal Affairs and Training, and the inclusion of information about the totality of the circumstances in such reports.

DEADLY FORCE POLICY

"Policy" Section

This section includes similar language to the Force Directive that "officers may be required to use deadly force" rather than making it clear the officers are making a choice to use deadly force.

It is interesting to read the existing section on "Release of Information," only a little of which has been changed; it has seemed to us that even though the Bureau has promised more transparency and responsiveness to these most serious of incidents, less information (such as, number of shots fired, how many hit the suspect, whether the bullets injured the suspect) is being released now than was done in the past. We urge the Bureau to include these examples in the list of basic releasable information, as we do not see how they could compromise the criminal or administrative investigation to do so. It is also unclear why civilian suspects in shootings are identified immediately but the Bureau has a 24 hour minimum waiting period to identify officers involved.

"Procedures" Section

In the new "on scene interview" section (both under "definitions" and "duties"), it states that "an involved member will provide" a statement to Detectives, with similar language in the "walk through" section. However, later on in the Detective Division sections, each subsection provides that Detectives "may conduct and On Scene Interview and/or Walk through as needed." Why compel officers to do something in one place, but make it optional in another?

"Duties" Section

In the "Involved member responsibilities" subsection, it states that "the involved member may participate in a voluntary interview conducted by detectives," and states that "the involved member will waive his/her Garrity rights prior to the interview." Our understanding of the Garrity v. New Jersey court decision is that it applies to compelled testimony. If the officers are voluntarily being interviewed, Garrity does not apply. It is doubtful that any voluntary interviews will happen if those rights are waived.* It might be more appropriate to direct that Internal Affairs participate in any interview of officers and witnesses on the scene (as opposed to the current proposed "IA may be present at the interview"--repeated in the new Internal Affairs section later on), but not compel any answers if it is clear that the officer may have engaged in criminal conduct. The interest in interviewing officers more quickly, rather than waiting 48 hours as has been the practice, is to get the information while it is still fresh and before officers have a chance to change their story. Community members and officers alike should enjoy the constitutional right against self-incrimination-- but community members do not get a 48 hour reprieve before being questioned, so why should the police?

Similarly, civilians are not likely to be shown evidence of their alleged criminal activity prior to being interviewed, so it's not clear why officers are being afforded the right to watch any video captured on a car-mounted camera before making a statement.

To be clear, it is always possible that an officer has committed a crime when a shooting occurs, and should always be treated that way once there is a truly independent system set up to investigate and prosecute such crimes (that is, not depending on the same police force involved in the incident to investigate, and the same prosecutor who will judge the civilian criminal suspect's behavior using police information to prosecute the police). Under our current system, in which only one officer has ever been indicted for on duty use of force, it seems that without clear evidence at the outset of criminal activity, Internal Affairs should take over most of the investigation almost immediately.

In the "Witness member responsibilities" it also does not make sense to deny officers their constitutional rights, but rather to weigh the consequences of compelling their testimony (which will preclude later use in criminal proceedings) versus asking for voluntary statements. We appreciate that the section tells the witness members they "shall submit to an interview prior to going off shift"; this should just be consistent with the overall decision whether the case will be pursued criminally or administratively.

In the "Supervisor responsibilities," we support all the proposed changes that have each superior officer responding to the scene, taking control, and radioing in their assumption of control. This appears to be a remedy to what happened at the Aaron Campbell shooting, though it's not clear in the revised Directive that supervisors should allow sergeants or other officers who already have control of the scene to continue engaging in their actions rather than walking off the scene for a debriefing.

In the same section, it is not clear why the Independent Police Review Division is not on the list of people to be notified of a deadly force incident, since this is now standard practice.

We will leave it up to the Portland Police Association to comment on the removal of notifications to the collective bargaining units about the shootings/deaths incidents.

TASER POLICY

Again, the Citizen Review Committee, the City Auditor, the OIR Group, and many in the community including our group have given feedback on the Taser policy in the past. Additionally, the 9th Circuit has ruled the Taser to be an intermediate level weapon that requires an active threat to justify its use. Overall the proposed changes to this section seem to be an effort to give the same -- or more -- latitude to use the electroshock devices rather than putting clearer restrictions on them as has been demanded.

"Policy" Section

The existing and proposed introduction speaks about the use of Tasers "to take a combative person into custody with a minimum risk of injury to all of the parties." Breaking down two parts of that sentence, the Tasers are to be used on "combative persons," which is much more instructive than the proposed guidelines discussed below; yet being shocked with 50,000 volts of electricity is not considered an "injury" even though 1010.00 defines an injury as "substantial pain."

In the "considerations for less lethal force applications" section:

--A note about people's mental health condition is added, presumably to address the concerns of the DOJ; however, looking at the circumstances that involve deaths following Taser use, it seems that drug use and other factors should also be considered before applying a Taser.

--The Bureau suggests that officers "evaluate force options" if the Taser isn't effective after two cycles, whereas numerous reports have suggested the PPB adopt other agencies' standard of not allowing more than 3 cycles to be used. We are very troubled by the Bureau's intransigence on this point.

--When advising officers to use a warning, the new Directive removes previous specific suggested warnings, and states that "display, laser pointing, arcing, or a combination of these tactics may suffice" in place of a verbal warning. This is extremely troubling in light of the prohibition in 1010.10 of firearm warning shots being used to "gain compliance by a suspect through shock or fear."

--In allowing the officers discretion to decide whether "active resistance...may result in physical injury to the member or another," a new loophole is opened that appears to be in defiance of the 9th Circuit decision. Similarly, the guideline allowing use "when the subject makes or is a credible threat to engage in physical resistance that is likely to create a risk of injury" is far below the 9th Circuit threshhold.

In the "prohibited use" section:

--A new exception to the prohibitions allows use if the person "is capable of imminent harm to themselves or others." This also is a broad loophole in apparent defiance of the 9th Circuit. A similar exception is being proposed for handcuffed suspects who are "actively engaged in behavior that is a substantial risk."

--The odd insertion of the word "intentionally" otherwise dulls a good prohibition on officers pointing weapons at people's heads, faces, or genitals.

--It is unclear why a new section allowing a "drive stun" to "protect a member, create a safe distance between a member and a subject, or to avoid the use of a higher level of force" has been added, since this also does not indicate the presence of any active threat.

"Procedures" Section:

The definition of "active aggression" includes a threat, including verbal threats, to assault someone; again, too much leeway. Similarly, the definition of "active resistance" includes "bracing, tensing, pushing or verbally signaling an intention to avoid" being taken in to custody.

In the medical section, no changes have been made to accommodate the CRC's recommendation that any time a person is subjected to shocks from a Taser, they be attended to by medical personnel.

In the "actions following the use of the Taser" section, there is no requirement to report on "Taser light only," despite this being recommended by officers and community members on the Community and Police Relations Committee (as well as Portland Copwatch and the Auditor). Considering the Bureau's approval of "arcing" (that is, making a jolt of electricity crackle between the electrodes on the Taser, creating a noise and a light), that should also be indicated as a use of force.

"Responsibility, Accountability and Control" Section:

It is not clear why the Branch Chief's responsibility, and references to the Training Division offering an opinion of whether the Taser use was within policy, have been deleted. If these are not covered in other Directives, they should be restored here.

CONCLUSION

Thank you again for the opportunity to comment, though we will re-emphasize that we hope you do not "finalize" any of these plans until the community and the DOJ have decided that the plans will do something to eliminate the pattern and practice of excessive force that was found.

--dan handelman
portland copwatch

* If, however, the intent of this section is to suggest that an officer is being asked to sign a statement that the testimony is voluntary, rather than compelled, the section should be rewritten to say that explicitly rather than to involve a waiving of rights.
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Posted October 31, 2012