Analysis of OIR Group's January 2019 Report on Portland Police Shootings by Portland Copwatch

Table of contents

March 12, 2019

SIXTEEN YEARS LATER, PPB SHOOTINGS STILL QUESTIONABLE
OIR Group's 2019 Report Addresses Tactical, Policy Issues and Touches on Race

In 2003, the same year Kendra James, an unarmed 21-year-old African American woman was shot and killed by a Portland Police Bureau (PPB) officer, the city received its first report looking at officer involved shootings and deaths in custody. That report by the Police Assessment Resource Center (PARC) included a recommendation for officers involved in deadly force incidents to be interviewed immediately after a shooting. The most recent Report, issued in late January 2019 by the OIR Group, continues to hammer away at this point nearly sixteen years later. Portland Copwatch (PCW) issued a brief analysis of the 2019 Report in early February, this is a more detailed look.

The OIR Report includes a lot of information that the community had not previously known. The narratives still report the actions of suspects as fact, even though they are derived from the testimony of involved officers and, sometimes, eyewitnesses-- but rarely the suspects themselves. Obviously in cases where people died-- six of the nine incidents reviewed in the Report-- that is not possible. Even so, OIR presents several of the cases in a way that implies officers violated policy and/or training, most significantly in the deaths of Quanice Hayes and Terrell Johnson. While OIR is still unwilling to explicitly look at PPB actions as products of Racial Profiling (such as when they ignored the implications of the Gang Enforcement Team pulling over Keaton Otis for driving the wrong kind of car in 2010), they do take some time in the foreword of the Report to note the distrust of police by the African American community. They encourage the Bureau to engage in "honest dialogue, receptivity to feedback, transparency and a demonstrable willingness to evolve and improve." This should have been broken out as a formal recommendation. PCW supports these ideas, but urges the Bureau to state clearly that until they figure out a way to police non-violently, there could be another shooting. This would keep a clear delineation between the (indeed) public relations of the Chief "skipping rope with youngsters" (as cited by OIR) and what it really means to be a part of the community. Our friends don't kill each other, and even if they did they would likely be held accountable in a court of law, a kind of accountability which the police in Portland never face.

The fact is, if a civilian body tasked with reviewing the deadly force cases at the time they happened used the same expertise and lenses as the OIR Group, there likely would be more examples of officers being found out of policy and perhaps even disciplined.*-1

In the last Report, OIR took aim at an important aspect of deadly force cases not directly in the City's control: the biased way in which the District Attorney presents cases to Grand Juries. This time, they look at yet another institutional apologist for police shootings: the State Medical Examiner's office. Echoing community concerns, they urge the Bureau to convince the ME not to label officer-involved shooting deaths as "suicides" (Recommendation #15).

OIR also has suggestions around the secretive, internal Police Review Board (PRB), focusing on making sure they do thorough analysis, follow up on their recommendations and receive training... but not the issue that the police treat the civilian members as uninformed because they are not officers.

One tremendously helpful part of the new Report is a table listing all 50 cases the OIR Group has reviewed since taking over for PARC in 2010. They note that 13 of the 50 people subjected to deadly force were African American, but do not go further to note this means 26% of people shot or shot at in Portland are black in a city with a 6% African American population. Much like the PPB's poor excuse for analysis of stop data, there is no explanation why the disparity is so high.

Similarly, they note that 29 of the 50 people "had a history of mental health issues or were experiencing some type of mental health crisis." That is 58% of all the subjects who were subjected to police deadly force. While some may argue that number should be higher to reflect reality, the salient point here is that beginning in late 2012, the US Department of Justice has been ushering in reforms to reduce PPB use of force on people with mental illness. The data here show what PCW and others have been saying for years: the reforms are not making enough of a difference. In the 33 cases they reviewed dating 2004-2012, 55% (18) involved mental health issues. In the 17 cases since 2013-- post DOJ-- that number is 65% (11).

Significantly, three of the nine incidents in the report happened in 2017 (with one in 2014, three in 2015 and two in 2016), marking among the shortest turnaround times for the policy-related reviews of these most serious cases. In past years the recommendations were coming three or more years afterward. Nonetheless, as OIR itself points out, a major change in PPB investigations-- requiring officers to be interviewed within 48 hours (rather than more than 48 hours later)-- did not happen until mid-2017. Without a contemporaneous analysis of deadly force events and investigations, these outside analyses are still coming later than they should to improve the situation in Portland.

Nonetheless, PCW supports most of the OIR's 40 recommendations. Copwatch urges the Citizen Review Committee (CRC) to get involved in ensuring the recommendations are appropriate for Portland and are being implemented properly, as required under City Code 3.21.070 L. The OIR report can be found at https://www.portlandoregon.gov/ipr/article/711306.

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TRENDS AND LONGSTANDING CONCERNS

In addition to the items listed above, there are other trends that the OIR Group either did not notice or finally got around to addressing.

For example, tied to the issue of Portland's racist history, PCW notes that after a break of nearly 7 years after the controversial deaths of Aaron Campbell and Keaton Otis, no African Americans were killed by the PPB until early 2017. Perhaps related to the election of Donald Trump, there have been four such deaths in just two years: Hayes and Johnson in early 2017 (five and eight months before Wheeler hired Danielle Outlaw, an African American woman, as Chief) and Patrick Kimmons and Andre Gladen in September 2018 and January 2019. Another African American man, Chase Peeples, was shot and wounded in October 2017. Thus, just looking at Feb 2017 to Jan 2019, five out of 15 incidents, or 33%, involved African American suspects.

OIR reported formally on the three cases in which officers walked backward and tripped, which precipitated their (or their partners') decision to use deadly force: Terrell Johnson, David Ellis and Nicholas Davis may all be alive if the officers had followed what the PPB says is their training, which is to go sideways instead of backward. PCW raised this issue following OIR's 2016 report. OIR recommends emphasizing "lateral movement techniques" in the Bureau's training (#37). Interestingly, the Report states that Officer Jose Jiminez, who fell over and was supposedly stabbed by Ellis, only received "minor injuries," contradicting the Bureau's narrative. On the other hand, OIR describes Ellis' knife as having a four inch blade, while the photo released by the PPB shows the actual blade, not the handle, is only about 2.5 inches long. In the Terrell Johnson case, Officer Ajir claims he fell over after Johnson slashed at him with a knife, but it is not clear whether any video of or witnesses to the incident confirmed this claim. Ajir said he fired his gun while he was falling and again after he had gotten back up, though OIR says video shows he fired while he was on the ground. They think this is an example of faulty memory, though it is more likely Ajir was trying to save face.

The Report recommends (#3) that the PPB put mug shots and criminal histories of those shot by police in the back of investigative report files rather than the fronts. Ideally, unless the criminal history was known to the officers at the time, that information should not be in the files at all, but the fact that the PPB agreed to move the information back is a good start.

In 2016, OIR recommended that the Bureau define "cover fire" in the force Directive to be clear when the controversial practice can be used, repeating that recommendation here (#16) based on the case where they shot at (but did not hit) Timothy Bucher in May 2016. PCW made this recommendation to the Bureau in March 2013.

PCW has also repeatedly pointed out over the years when officers involved in reviewed shootings had previously been involved in other incidents, sometimes with similar characteristics. OIR has now been taking note of this trend and specifically recommends for a second time (after their 2016 report) "consider[ing] any prior uses of deadly force," looking for "parallels between the officer's tactical decision making" (#39), and debriefing, re-training and/or imposing "corrective action" on the officer (#40). Just in this report, they note, Officer Russ Corno, who was involved in two shootings they reviewed three years ago, was involved in the death of Michael Johnson, and Officer Andrew Hearst, who killed Quanice Hayes, was involved in the shooting of Merle Hatch in 2013.

OIR returns to the problem of officers not rendering medical aid soon enough to people who have been shot. Recommendation #2 asks that reviewers make sure other strategies could be used to get aid to subjects quicker; PCW notes that the PPB also should be sure officers followed the policy.

One other ongoing issue, which PCW has noted for years, and which was brought up to City Council by CRC after an officer from another agency refused to be interviewed in a misconduct case, is the problem when multiple jurisdictions are involved in shootings. This was highlighted by the Terrell Johnson case, where Officer Samson Ajir was assigned to the Transit Division along with his brother, a Clackamas County Deputy. OIR recommended not only that tactical decisions of any officer, even non-PPB officers, be considered (#30), but also not to assign officers to work with close family members (#31). They also suggest training and debriefing officers from all agencies in the Transit Division to ensure they all are prepared for and learn from critical incidents (#27 and #29).

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OFFICERS MAY HAVE VIOLATED POLICY / TRAINING: OVERSIGHT ISSUES

The OIR's contract with the city through the Independent Police Review (IPR) limits them to looking at policies, training, hiring, equipment and management (City Code 3.21. 020[U]). IPR itself is allowed to conduct "independent" investigations, but for deadly force incidents all they can do is show up on the scene, then observe the Bureau's actions and interviews (Directive 1010, Section 2.1.8.2). For its part, the Citizen Review Committee, which can hear appeals about any kind of misconduct case where the complainant feels a non-sustained finding should be sustained (found out of policy) against an officer is not supposed to hear appeals of deadly force cases (DOJ Agreement, Paragraph 43). In part this is because the Bureau refers to investigations of deadly force as "reviews" rather than "administrative investigations" and limits the findings to "In Policy / Out of Policy" rather than the four findings available in all other misconduct cases.

With all that as a backdrop, the new OIR Report hints very strongly that Officer Hearst may have violated policy and/or training when he shot Quanice Hayes and that Officer Ajir likely committed multiple violations in the shooting of Terrell Johnson.

In Hayes' case, the officers gave 17-year-old Hayes conflicting commands about crawling on his hands and knees and also having his hands in the air, with one officer reporting Hayes complained he could not do both. Issues also included failing to take cover and not deciding which officer would be the one to give commands. PCW's reading of the report is that the confusion caused by this lack of a plan led directly to the Officer Hearst's decision that Hayes was defying police orders and killing him.

In Johnson's case, Officer Ajir appears to have violated several facets of the foot pursuit policy, but that was never considered in the so-called "review" of the young man's death. OIR has pointed out previously that foot pursuits often end with officer violence and thus should follow strict limitations. Though those limitations are in PPB policy, Ajir went after Johnson alone, did not radio in his location, and lost sight of the suspect. When he caught up with Johnson, he found he was in close quarters, which led to his backing up, tripping, and then shooting and killing the 24-year old. OIR points out that the review did not include the question of possible violations of the foot pursuit policy, recommending that specifically be part of deadly force investigations (#28).

The most important observations that OIR makes about the oversight system is that the Police Review Board does not act as the independent check on officer involved shootings that it is supposed to be. In multiple cases, they note issues that were either not discussed or not addressed thoroughly by the PRB, an internal body composed of four PPB personnel, an IPR staff member, and two civilians.*-2 In addition to adding foot pursuits (#28) and prior shootings (#39) to PRB's review, OIR asks that they consider tactical decisions made leading up to shootings (#32), any training issues the Training Division finds were not "sound and effective" (#33), and recommendations from Training and the officer's Commander (#34). They further ask the Chief to formally respond to all PRB recommendations and act on them (#35).

The one area PCW takes issue with OIR's recommendations on the Review Board is their suggestion for all members of the Board to take training (#36). The Chief indicated she already assigned the Bureau's Professional Standards Division to find a facilitator to train the civilian (and police) members of the PRB. However, the experiences expressed by Citizen Review Committee members who have been seated on PRBs indicate that the problem isn't so much a lack of training as it is a prejudice by the police, who run and dominate the PRB process, against civilians' input. The implication is that people who are not police cannot offer valid criticisms of officer conduct. This is nonsense, of course-- not only do juries offer such critiques on a daily basis, but for example one does not have to be a doctor to know you don't leave a surgical implement in someone's abdomen after surgery. In other words, the facilitators themselves need to be better trained to ensure such bias is not allowed at the hearings.

The OIR asks whether Sergeants who put themselves into tactical scenarios they were supervising should have been disciplined, repeating a recommendation to incorporate such discipline into policy (#18) and making a new one asking the reviewers of deadly force cases to look at possible policy violations by the supervisors (#19). In the case where officers were in a standoff with Timothy Bucher, Sergeant Jim Darby*-3 moved himself close to Bucher, leaving a place where he was protected by an armored vehicle, went close to Bucher's home which was filled with tear gas and became overwhelmed by the gas, and fired his gun five times without being able to see what he was hitting. Bucher was not wounded by police gunfire. Sgt. Kyle Nice *-4 grabbed his AR-15 assault rifle during the time officers were trying to get Quanice Hayes to surrender, leaving his supervisory role.

In the Michael Johnson case, an officer who was involved in the incident as part of the SERT team was also part of the investigating team, which should never happen. OIR asks the Bureau to make that a policy-- it seems odd that it is not already (#13).

When Officer Lawrence Keller*-5 ended up shooting and killing Steven Liffel, Sgt. John Holbrook*-6 failed to call for a negotiating team early on, even though there was no immediate threat when he and Keller first arrived, but that failure was not discussed by reviewers (other than OIR).

In a footnote, OIR reveals that investigators stopped looking into the Healy case 50 days before the 180 day timeline to finish investigations even though not all witnesses had been interviewed. This should have been in the main body of the Report as it is quite disturbing. One witness never responded to police contacts about the shooting, it is likely they would have responded better to a civilian investigating agency than to the police. OIR comes close to this idea by suggesting IPR should use it subpoena power to get people to talk to Internal Affairs (#8). The better plan would be to let IPR or another civilian group run the investigation or conduct at least the civilian interviews. Side note: The Chief's response indicates the Bureau is already having IPR subpoena civilian witnesses.

Another important item highlighted by both the Training Division and OIR is that the officer in charge of the Michael Johnson incident was Robin Dunbar, who was there in the capacity of an acting Sergeant, but she had not yet been to Sergeant's academy to learn about critical incident command.

The OIR Group reveals various other issues that were not reviewed by the PRB and others. PCW thinks the reviewers should have asked:

--whether it was appropriate to fire 19 tear gas canisters into Bucher's mobile home; and

--why officers didn't think about using a bullhorn to try talking to Michael Johnson (even though one was used, albeit unsuccessfully, trying to talk to Merle Hatch about four years earlier).

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WORDS MATTER

In their 2016 Report, OIR told the Bureau to stop using the term "suicide by cop" as it implies that there was a pre-determined outcome driven by the suspect.*-7 PCW commends the OIR Group for the new Report, which cautions the Bureau against using the phrase "the officer had no other option," which similarly implies the officers were unable to make a choice about using deadly force (#25).

As noted above, the Report calls out the Medical Examiner for ruling Michael Johnson's death a suicide despite the fact that he was killed by Portland Police bullets. OIR raises the excellent question of why a District Attorney would even have to hold a Grand Jury if the community member killed themselves. PCW has long been concerned about the ME's role in downplaying officer responsibility in deadly force incidents and hope the City follows through on this issue.

OIR also calls into question two officer memes which have been debunked, yet surface from time to time to justify deadly force. One is the "21 foot rule" where cops, thinking a person holding a sharp object can rush and injure them if they are less than 21 feet away, fire their weapons even if there is no imminent threat. OIR addressed this already in 2016, but raises the issue again (#6) since Officer Thomas Clark used the concept to justify his shooting at Christopher Healy, a houseless man who allegedly confronted officers with a knife.

The other is the "action / reaction principle" which is related to what PCW has referred to in the past as the "Superman theory," that says a suspect can draw a weapon, point and fire it before an officer can draw their own gun in self-defense. Officer Hearst claimed that he shot Quanice Hayes because he feared Hayes could draw and fire a weapon before the police had a chance to respond. The OIR does a great job of debunking this claim (#24), but misses the key salient point: Officer Hearst had his AR-15 pointed at Hayes at the time, meaning he already had the tactical advantage which the "action / reaction" theory uses as its premise.

Regarding the Don Perkins non-fatal shooting the same day Hayes was killed, the OIR Group describes officers fetching less lethal weapons as a form of "de-escalation." As we have written many times, de-escalation should only be used to describe using words and body language to lower the tension in a confrontation. Doing something to use less force once force is applied (or less force than the maximum possible) should be called "mitigation of force." As a side note, the Report reveals that when officers first approached Perkins, his hands were empty-- even though officers ultimately shot him because he supposedly reached for a replica gun.

In describing the foot pursuit after Terrell Johnson, OIR notes that disengaging from a pursuit does not mean the police are letting the "bad guy" go. Although they also use scare quotes here, PCW continues to discourage the use of the term "bad guy" to describe what is at best a criminal suspect and at worst a criminal. Just as officers cannot shoot guns out of people's hands in the movies, the concept of "good guys" and "bad guys" is not based in reality.

As a point of clarification, OIR's discussion of video improperly shown to officers at roll call in the Bucher case implies that PPB air support is a helicopter. Unless something has changed, the Bureau has two fixed-wing airplanes that they use for surveillance. Regardless, OIR is quite right to reaffirm that videos should not be shown before all Bureau witnesses have been interviewed (#20).

One final note on language: PCW has stated before and still believes that Portland's version of a SWAT team should be referred to as the Special Emergency Response Team, rather than the Special Emergency Reaction Team. It's much better to respond than to be reactionary.

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POLICE ASSOCIATION CONTRACT RULES ALL

The OIR Group's suggestion that officer interviews be video recorded (#10) led the Chief to say such a change would require collective bargaining. While PCW is not sure why video versus audio makes for a mandatory bargaining issue, it is telling that the Bureau was willing to open up negotiations right away for this issue while the City continues to drag their heels on changing the Citizen Review Committee's standard of review, partly based on the assertion that the PPA has to negotiate over that item as well. If the various issues surrounding the contract-- including that IPR and CRC should be able to investigate and hear appeals on deadly force cases-- were consolidated, such piecemeal bargaining would not keep happening.

As noted above, OIR states over and over that all of these cases happened before the City fixed the "48 hour rule" to require officers to be interviewed _within_ 48 hours of a shooting rather than _after_ those two days.*-8 The District Attorney's understandable concern about not tainting a criminal investigation with compelled administrative testimony, however, seems to have led to a few side effects, one of which is in the Report: several officers refused to be interviewed by homicide detectives, and instead spoke for the first time to the Grand Jury on the criminal question. In the Quanice Hayes case, the Grand Jury took place over a month after the incident.*-9 The other is that the community has been getting a lot less information from the Bureau immediately after shootings, which leads to unrest and speculation. The City needs to meet immediately with the DA after deadly force incidents to formulate a presentation which doesn't jeopardize the process, but which lets people know what is going on. (Not that the DA has successfully prosecuted an officer for an on duty shooting in the last 50 years anyway.)

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INVOLVE COMMUNITY VOICES, AND SOONER

The OIR's report was finished early enough that the Chief issued a response dated January 17. There is no reason the community shouldn't have been given copies right away after that rather than 15 days later.

Moreover, the City is always talking about Community Engagement and Community Policing, but the community had no direct voice in the recommendations made by OIR. Most of the recommendations are useful and are concepts Portland Copwatch can support-- in fact, several of them are ideas PCW has made for years. However, recommendations such as the one asking for more training for Police Review Board members would be best served by a community discussion before implementation.

The lack of community input is only compounded by Mayor Wheeler's policy not to allow public input on Reports. Fortunately, because Donna Hayes, grandmother of Quanice Hayes, was present to testify on February 6, the Mayor also allowed the AMA Coalition for Justice and Police Reform and Portland Copwatch to say a few words. Despite the Mayor stating this should not be a precedent, it should be clear that the discussion at Council was richer because of the public input that day.

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CONCLUSION

Portland Copwatch continues to urge the PPB will slow down implementation until there has been a reasonable period of time for community and advisory groups to look at the recommendations, similar to the 45 days total people are given to review proposed Directives. As PCW noted in the discussion about OIR's contract, the Report was released right after a four month period (September to January) in which the PPB was involved in more deadly force incidents than any entire year since 2006, when James Chasse was killed. As OIR points out in their

Thank you
dan handelman
portland copwatch

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Footnotes:

*1- The only officer fired for use of deadly force whose firing was not overturned was Dane Reister, who loaded live rounds into a "beanbag" shotgun and permanently injured William Monroe in 2011. Reister was facing possible criminal charges when he killed himself.
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*2- The PRBs for deadly force and other high profile cases involve one civilian from a pool of about 15 and one member of the CRC. On lower-level cases, there are only five members-- three from the PPB, one from IPR and one from the civilian pool.
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*3- Darby was one of the officers who piled on Richard "Dickie" Dow in 1998, which led to the man, who had schizophrenia, dying the next day.
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*4- Nice was one of the officers involved in the beating of James Chasse, Jr., leading to his death in 2006.
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*5- Keller was also involved in the October 2000 shooting of 19-year-old Justyn Gallegos and fired a Taser at the wounded body of Dennis Lamar Young after Lt. Jeffrey Kaer shot him.
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*6- Holbrook was one of the two officers who shot and killed Brad Lee Morgan in January 2012.
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*7- Unfortunately, OIR uses that term in a section heading of the Michael Johnson case, albeit in scare quotes.
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*8- OIR credits IPR with pushing the City to fix the 48 hour rule after the DA tried to get Internal Affairs to wait until after the Grand Jury, while it was the community taking action that helped make this change.
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*9- OIR lists this as being 47 days later, but since their timeline on the case shows the Grand Jury ended 40 days after the incident, it was probably 37 days.
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Posted March 12, 2019