To Chief O'Dea, Capt. Famous/Capt. Rodrigues, Captain Marshman, Ms. Prybyl and the Portland Police Bureau:

We are submitting feedback on the fifteen Directives posted earlier in April. Once again, far too much of our time that should have been spent analyzing the substance of the policies went to line- by-line comparisons to see what was changed. The Bureau has been asked by the Citizen Review Committee (CRC) to provide red-line versions of the draft Directives. We would accept at minimum an explanatory cover sheet that outlines what changes were made and why.

For example, it's fairly clear that a number of provisions reaffirming the collective bargaining rights of employees were added, which probably came at the request of the Portland Police Association (PPA). Major revisions to the Mental Health directives, including what seems to be a mini-training course about mental health crises, are being proposed, but it's not clear whether that came from the Behavioral Health Unit's Advisory Committee (since their meetings are not public). It's also clear that some housekeeping was done on all of the Directives to change the words "Responsible Unit" to "Responsibility Unit," "Branch Chief" to "Assistant Chief" (which for some reason isn't capitalized by the Bureau), and "Corrective Action" to "Discipline" (or "Corrective Action/Discipline").

Since all of these Directives appeared in one form or another in previous months (September 2014 and January 2015), we're including many of the comments we made that the Bureau has for whatever reason chosen not to incorporate. New information is highlighted with asterisks ***.

We continue to question the Bureau's decision to number multiple sections of the Directives as section "1" and failing to number the definitions section, and have suggested previously calling the major subheads letter A, B, C, etc. so that particular line items can be easily referenced.

Finally, regarding the unreasonableness of giving 30 day deadlines to respond to such a huge volume of information (over 40 pages), it's great that the Bureau said they would accept input from the Community Oversight Advisory Board past the early May deadlines, but that seems unfair to others in the community trying to keep up with the Bureau's rigid schedule. Perhaps the deadlines could be 45 days long with new items being posted every 30 days.


We still believe that the Bureau's stated commitment to transparency and thoroughness are undercut by closing Police Review Board (PRB) hearings entirely to the public and the press. As we noted previously, the Directives do not allow for the person who was harmed by an action of a police officer (or his/her representative) to sit in and talk to the PRB about their experience. The officer under investigation can address the board and review the entire case file. City Code does not bar civilian complainants from participating.

Our previous concerns included the confidentiality of PRB hearings. We reiterate that while Section 12.2 indicates that there may be discussions of the case "as otherwise authorized in accordance with their position with the City," there should be more deliberate directions regarding public interaction with the Board. We suggested the PRB's community member pool could meet twice a year when the semi-annual reports are released. They could describe what the process is like, whether they felt they had enough information to deliberate, and whether they felt under any pressure in a room filled with a majority of police officers. ***At the Citizen Review Committee's March 2015 retreat, members who'd sat in on PRB hearings expressed feeling intimidated by such surroundings.

We also noted that the current ordinance allows names to be released in officer-involved shooting and deaths in custody cases where the names have already been made public, but the Directive does not discuss that issue. ***In fact, the January 2015 report not only lacked names for its two deadly force cases, but continued the Bureau's odd practice of redacting the gender of the persons involved in all misconduct investigations. With sexual misconduct a recurring theme, it is unconscionable that the Bureau considers gender to be confidential information.

The Directive's Section 7.5 still does not make it clear that the Bureau or the Independent Police Review Division (IPR) must complete investigation requested by the PRB, even if it takes more than the 10 days listed in the Directive and the Department of Justice (DOJ) Agreement.

It also still isn't made clear that the Review Board Coordinator and the Discipline Coordinator (formerly Corrective Action Coordinator, see Directive 335.00 below) work for the Professional Standards Division (PSD).

***The new changes to this Directive are relatively minor. The section on "Scope of Review Authority" is now changed to "Powers of the Police Review Board"; and in what seems to be one of only seven of our recommendations actually adopted by the Bureau, "Citizen Review Committee" is now capitalized in Section

And, also, as noted previously:

--We continue to object to the officer's supervisor continuing to have a vote on the board when he/she was the one who made the original finding that is being reviewed (Section; and
--Most parties have 14 days to review the Case File, but some only have 5 days (Section 8.5).


We wish the Bureau would consider our proposal to use the term "Insufficiently Proven" or equivalent instead of the term "Not Sustained," since two other possible findings, "Exonerated" and "Unfounded," also mean that the allegation was not sustained. Though the term "Not Sustained" is used by many review systems, we think it will cause confusion. We also asked that "Unfounded" be reverted to its previous definition ("available facts do not support the allegation") rather than the accusatory one the Bureau's adopted ("false or devoid of fact"). We also continue to believe that training around how to assign and support the "Unfounded" finding will go further than setting a higher levels of proof for "Unfounded" than all the other findings (which use preponderance of the evidence).

We continue to think the definition of "finding" should be whether the allegation is supported by the facts, not a definition that includes the possible findings.

We never received a response from the Bureau whether a list of issues about training, policy and supervision raised in the "Findings Cover Sheets" is publicly available.

It also seems the problem that the Chief might debrief an officer prior to the CRC hearing an appeal has not been remedied (Section 8.5.2). Also, the officer under scrutiny continues to have the ability to review the case file, while the complainant does not (Section 8.3.1).

Nothing was done to clarify how officers with repeat violations might be treated ("Guidance" Section 2, Policy Section 3, "Appropriate Corrective Action or Discipline Factors" Section 4). We noted before that the old Directive specifically said "All recent discipline is relevant, not just discipline for a specific kind of conduct."

***The only substantive change we noticed was an odd one, specifying that an officer has the right to "a bargaining unit attorney" rather than just "an attorney." It's not for us to judge, but if an officer doesn't want the bargaining unit's attorney, or the bargaining unit decides not to support him/her because of the nature of the investigation, it seems strange that other attorneys would not be welcome in the process.

We also continue to wonder why:

--The Bureau no longer includes the possibility of written warnings in Policy Section 2;
--The process for a complainant to learn the outcome of "minor" violations treated as debriefings is not clear (Procedure Section 2.1.7); and
--There's no definition of the "Discipline Coordinator."


We do not see any substantive changes in this section, which is particularly troubling since Section 6 still does not comply with the spirit of paragraph 129 of the DOJ Agreement calling for all Use of Force complaints to be investigated. (We also think all Disparate Treatment complaints should be investigated.) The Directive still does not prohibit mediation for Force complaints, though a previous version did.

We continue to encourage the Bureau to re-insert the words "accountability, impartiality and professionalism" in the Internal Affairs Directive.

We see nothing requiring precinct-level resolutions of complaints to be documented (Section 2.1 and elsewhere).

***The one change we did notice was the new title for Directive 314.00, Prohibited Discrimination, which is now called "Compliance with Human Resources Administrative Rules." Whatever other kinds of activities Human Resources forbids, we think the word "Discrimination" should appear in the title of that Directive.

Also, as previously noted:
--There's nothing instructing Internal Affairs to check an officer's complaint history;
--There is no provision in City Code to dismiss complaints that are "too vague" (Section 10.1.2); and
--There is still no requirement that dismissals for "unidentifiable" officers be based on lack of information, rather than speculation (Section 10.1.5).


The Definition of Administrative Investigation still does not mention IPR.

Because language from a previous iteration about the confidentiality of the files has been omitted, we wonder whether complainants now can have access to the file (Section 4.1). Another previous requirement, that Internal Affairs contact the complainant and officer every 6 weeks, still has not been re-inserted.

***The only major change in this Directive is the addition of another apparent PPA-driven clause. New Section 5.5 gives officers the ability to have their Exonerated, Insufficiently Proven ("Not Sustained"), and Unfounded cases withheld from employment related information requests.

Also, as noted before, the timeline to finish investigations begins when the investigator is assigned, rather than when IA receives the case from IPR.


We still do not understand why Directive 333.00 explicitly states that it does not relate to deadly force or in custody deaths (Policy section). Portland Police Detectives should not investigate their colleagues. We don't think the Directive's intent is to invite independent investigation and prosecution, though we do urge the Bureau to adopt such a policy.

We continue to encourage the Bureau to allow officers to go outside their chain of command if they witness another officer engaging in possible criminal conduct, at which point the Directive requires them to notify someone (Section 2).

***The only substantive changes in the Directive are apparently just re-wordings of policies from the last draft. Previous section 11.1.3 on ensuring Constitutional Rights has been expanded to include collective bargaining rights (no doubt another PPA comment) and moved into the Policy section. Procedure Section 3 requiring officers to report any arrest removes the previous restriction that such court action had to be based on their scope of employment-- this is a good change that we can support.

We also continue to believe that highlighting the goal of accountability should return to this Directive from its previous iterations.


We continue to insist that the Bureau refer to so called "Service Improvement Opportunities" as Non-Disciplinary Complaints (NDCs).

Nothing has been done to require reporting of complaints received and dismissed by precinct supervisors to IPR. Nor has anything been done to reconcile Policy Section 3, which says NDCs will not be placed in officers' personnel files, with Directive 332's requirement to retain Internal Affairs files for 7-10 years. The older NDC Directive ensured the "satisfaction of the complainant" but the current one says these mini-investigations are done merely to "satisfy the complainant," as in, the Bureau is just going through the motions.

We also continue to believe that supervisors should not be able to (a) dismiss complaints stemming from traffic stops if misconduct other than improper stop is alleged (Section 5.4.2); nor (b) decide a complaint is "grossly illogical or improbable on its face," (Section 5.4.3).

**There were no substantive changes made to this Directive.


This Directive allows an investigation not involving IPR or Internal Affairs of an officer who files "incomplete reports" or makes "inaccurate statements." ***This is now called a "Performance Deficiency Investigation" rather than a "Performance Investigation," which seems clearer. The only other potentially substantive change is that patterns of performance deficiencies now may rise to "the level of misconduct" rather than "a conduct violation" (Section 1.1). While this clarifies how serious performance problems can lead to suspension or even termination (Policy Section 4), it is not clear why IPR and IA would not be assigned more involvement than reviewing the finished investigation (Sections 2.4 , 2.6 and 4.4) and signing off on discipline (Sections 2.5 & 2.6.12).

We continue to think that filing incomplete reports and making inaccurate statements have serious impacts on the community and that IPR should have more involvement in these investigations.


***This blissfully short Directive had only one word change for clarity.

We continue to be concerned that discipline can "be modified based on mitigating and/or aggravating factors" (Policy Section 4), when the Guide is supposed to ensure that wildly different punishment isn't being doled out for the same behavior.


***We begin our feedback here by thanking the Bureau for removing the clause we flagged last time which allowed the Chief 30 days to respond to the Auditor's nominees for the Police Review Board (cut from Section 2.3). However, nothing has been done about the Section (2.2) allowing the Chief to identify PRB candidates, which, like the 30-day provision, is not in City Code.

***We also thank the Bureau for replacing the word "citizen" with the words "community member" as per our past comments.

***Another apparent PPA recommendation, that bargaining units can review applications by "peer officers" who rotate onto the board, is of some concern. The Directive does not say whether the Bargaining Unit can object to the officers serving, so for now we assume this is just a courtesy.

We continue to believe it was a good idea to prohibit peer officers serving in the same Responsibility Unit (Reporting Unit?) from sitting on the PRB, and we hoped that previous provision would be re-inserted.


As we noted in our previous comments (before this Directive had a number assigned to it), it's not clear how a twice-yearly evaluation is explicitly called a "non disciplinary tool" which will have no impact on the officer's pay, when an officer who has had multiple complaints sustained against them-- or one serious complaint-- could (and should) be demoted or fired.

***The Directive has been rewritten so it only applies to sworn members who are represented by bargaining units, while non-sworn and non-represented officers will be evaluated by other means. So long as the evaluations are equivalent, we do not have a concern with this change.

***The Directive also has a new clause, Procedure Section 2, which protects the evaluations from public records requests except as required by law. We assume this also came from the PPA. As with misconduct information about police officers, we feel information that is in the public interest needs to be released. The people who repair Portland's street lights do not have the same kinds of interactions with the public as the police do.

Finally, we repeat our earlier comment that there is no definition for a "201" file as referenced in Procedure section 1.5


***This Directive was reorganized, revised, and updated. One notable addition related to the DOJ Agreement (paragraph 116[c]) is section 6.1.7 which requires analysis of patterns of activities by unit and supervisor, which might help pinpoint particularly aggressive groups of officers (as was noted about the Transit Division in the Bureau's 2007 Use of Force report).

***Section 4 was changed from "Performance Evaluations" to "Performance Discussion Tracker (PDT)," with a new Section 5 on "PDT and After Actions." This is related to the Use of Force investigations required by the DOJ Agreement. We've noted elsewhere that we believe civilian investigators from IPR should be sent to the scene of Use of Force incidents to conduct such investigations (or, at minimum, to observe the procedures as at Deadly Force incidents). The Directive indicates that a Supervisor can record "training deficiencies, policy deficiencies or poor tactical decisions" and non-disciplinary corrective action taken. It seems this entire process bypasses IPR and could lead to an officer claiming double jeopardy if a community member files a complaint later.

***Section 6 on the Professional Standards Division also calls for annual reports on the use of the Employee Information System (EIS). Though the report is not specified in the DOJ Agreement, the public has no confidence that the EIS has been operating properly in its previous or current form. DOJ Agreement paragraph 158 calls for Bureau audits and reports to be public, so the Directive should indicate that the EIS annual report is public. Such a cumulative report on the use of EIS is not a violation of the new section (8.1) saying the content of the EIS itself is exempt from public records requests (likely another PPA addition, as in Directive 215.00).

***It's not clear in the new section 1.1 why the Supervisor of an officer transferring into his/her unit would be given 30 days to look at that officer's Performance history in the EIS. It seems that Supervisor should know that information before the transfer takes place.

***The new Policy Section 1 highlights the "positive career development" of an officer, and speaks of how the Bureau wishes to "develop and encourage personnel." Both this sentence and Section 3, which despite repeated calls from the community, still says the EIS is not being used for disciplinary proceedings, refer to the EIS, while Section 2 about "offering appropriate support" when "behavior and/or performance problems exist," does not.

Also, as noted before:
--There is still no definition for "traumatic incidents" (itself in the definition of "Threshold");
--It is still not clear what rank the EIS manager holds, which is important given the extraordinary authority he/she is given in Section 6; and
--Serious issues such as DUIIs, sustained complaints and use of deadly force will misguidedly be purged along with all other data automatically after 5 years.


As we noted in January, our comments are from the perspective of a police accountability group, and we continue to encourage the Bureau to receive feedback from consumers and advocates in the mental health community. ***The substantial rewrites of this Directive, particularly the descriptors of persons in mental health crisis, have both positive and negative aspects. Positive because the police finally have some direction in dealing with persons who are in fact experiencing a mental health crisis. Negative because the definition is so broad as to include almost anyone. This means it will be almost impossible to hold the police responsible for any misconduct.

***For example, the Directive lists a number of feelings and actions that might indicate a mental health crisis, which include "neglect of personal hygiene" and "unusual behavior." These commonplace traits (of low-income people, homeless people, and hippies alike) might be used to initiate a police action where no reasonable suspicion of criminal activity exists. For this reason, we suggest there be more guidance on the phrase "consideration of the government interests at stake" (Section 3.1) This is somewhat mitigated by the sentence opening with the phrase "In determining non-criminal resolution for a person in mental health crisis," but could be better defined.

***On that note, the Section that outlined why police might need to be called to the scene of mental health crises, which raised the issue of whether the person is armed, has been completely removed.

***The Definition of the Enhanced Crisis Intervention Team (ECIT) relies on circular logic, basically saying ECIT members are volunteer officers who take ECIT training. It should explain what the training is and what differentiates the ECIT from regular officers who get basic CIT training. In the new Section (4) on ECIT, the Directive indicates ECIT officers generally will not be dispatched outside of their districts (4.1), though confusingly they can notify supervisors if they leave their precinct (4.3). Language in the previous draft saying ECIT members "will be used for incidents involving persons in crisis" has become "ECIT members may assist in incidents." This seems to downplay the importance of ECIT training. (We do appreciate that the Bureau took our advice and made ECIT responsibilities a separate section.)

Overall, the Directive continues the concepts incorporated in the last draft of de-escalation, disengagement, delaying custody, and non-engagement, which are all likely to avoid more James Chasses, Merle Hatches, and Aaron Campbells. But because there continues to be no emphasis on avoiding Use of Force, the amount of discretion given to officers could make it difficult to hold them accountable. Also, as we noted in our previous comments, the four non-violent alternatives above can also be considered even when a subject is not perceived to be in a mental health crisis.

The Directive still does not call attention to the fact that the mere presence of a uniformed officer can cause trauma/stress for persons with mental health issues (and other members of the general public who are fearful of police due to past experience or witnessing of police violence).

The Definition of "de-escalate" still talks about the "necessity" of the Use of Force rather than "likelihood." Since Force is always a choice, we continue to urge this word change.

***We appreciate that the word "normal" has been removed from the Definitions section, and that the indication that mental health crisis calls might involve violence was removed from Policy Section 3, perhaps as a result of our suggestions.

***It is good that Policy Section 1 notes that Mental Health Providers, not law enforcement, should evaluate, diagnose and treat people's ailments. It is too bad this is now the third time we have to object to the language in Section 2 about "limited services" supposedly leading to officers being "increasingly required to respond" to persons with mental illness, which should not be part of a Bureau policy. Even if services were fully funded and available to all who needed them, the policies in the Directive should be applicable. It is good, however, that the Directive no longer implies that the Bureau's efforts to "emphasize community-based services instead of arrest and incarceration" are only a result of underfunded health systems, but rather indicates the Bureau wants to be part of a holistic system.

***One final new item we're concerned about: Section 6.2 adds that a supervisor may "acknowledge" a call when officers are dispatched to a mental health facility, removing the requirement that they respond to such a call. Given the outcome of the incident with Jose Mejia Poot being shot in a psychiatric facility in 2001, it seems unwise to remove the on-site requirement. This is especially odd given the requirement for supervisors to show up when facilities call for help in Directive 850.25.

We are still concerned that:
--The Bureau refers to the "most effective options" (section 2.1.6) rather than something like "least intrusive options" as we suggested before. Even though the goal is to "safely resolve the incident," it doesn't indicate that safety applies to the subject as well as the officer;
--Section 3.1.2 does not require officers to stand by when a person checks into a mental health facility;


***This new Directive includes many sections from the old 850.20, but was rearranged and rewritten. One significant cut is that officers are no longer encouraged to make an arrest for some (arbitrary) offense if the hold is merely for concern of the person's danger to themselves or others. It retains the ability for officers to return a person to the original point of custody if they do not voluntarily enter a mental health facility (Section 1.3.3) but oddly allows an officer to leave the person at the "nearest safe best alternative" if that original location is not safe. In this context, it is not clear what that would be.

***The Directive now mentions that when juveniles are taken in for mental health custody, the legal guardian (or Department of Human Services) at least needs to be notified. We raised a question about why parental consent was eliminated from the 2009 version; this is a step toward answering that concern. We support the language in Policy Section 1 about the Bureau's support of civil rights and "the ability for individual's [sic] to have control over their person."

***Section 2.2 refers to custody under Direction of a Program Director; perhaps this section belongs in Directive 850.22.


***This is another new Directive derived from 850.20, with mental health holds broken out into various types of requests and outcomes. Policy Section 1 re-emphasizes that police are not expected to diagnose or treat mental health issues (as in the new 850.20). Procedure Section 1.3.1 notes that a person who leaves a mental health facility but was not being held on a commitment status is "free to go." This is an important legal point that needs to be reaffirmed to officers in many situations including this one.

***In new language, the Directive discourages officers from getting involved in "controlling" persons inside facilities, but notes that criminal activities like assault can require police intervention and investigation.

***Minor points: While other Directives refer generally to community health workers aiding the Bureau, this Directive specifically mentions Project Respond (Section On the bright side, the Bureau removed reference to "teletype," another recommendation from PCW.


This Directive still does not discuss the issue of officers bringing firearms and other weapons into hospitals and other facilities, as the introduction of such weapons could escalate the situation.

***As with Directive 850.20, the use of ECIT is downplayed, to where a supervisor now "may" call ECIT (Section 1.2) whereas the old version said low priority calls at secure facilities "will include an ECIT officer, if available."

***Perhaps in response to the Jose Mejia Poot case, Sections 1.1 and 1.3 now require officers to notify supervisors and come up with a plan before entering secure or nonsecure mental health facilities (unless "exigent circumstances" exist). For some reason, a separate section describing coming up with and sharing a tactical plan was removed from the previous version.

We're still not sure why the policy doesn't limit responses to these facilities to crimes in progress, armed individuals and serious assaults as in the 2009 Directive.

***It is not clear why the suggestion for officers to use the phone to determine the "severity of the threat" was removed from section 1.4.1 on tactical options.

***Section 1.4.4 directs officers to decide whether to contact the person in crisis by phone or in person, and to get cover if they decide to confront them in person. This part of the Directive might apply to crisis response outside of hospitals as well, as evidenced by the shooting death of Brad Morgan in 2012 where officers could have spoken to Morgan on the phone and/or called for cover, but did not. This section also still contains the "most effective" language we addressed in 850.20.

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Posted August 13, 2015