Portland Copwatch Analyzes Compliance Officer Report on US DOJ Agreement August 2020

To: Compliance Officer/Community Liaison
US Department of Justice
cc: Hon. Judge Michael Simon
City of Portland
AMA Coalition for Justice and Police Reform and other community organizations
News media

ANALYSIS: COMPLIANCE OFFICER QUESTIONS COP VIOLENCE, URGES HEARING PROTESTORS
While Not Revolutionary, the 2nd Quarter 2020 Report on Portland and the USDOJ is a Turning Point

August 5, 2020

The US Department of Justice (DOJ) might have a lot of reckoning to do in October, when the first official reports come out regarding whether Portland Police used excessive force during the ongoing protests that began in late May. The Settlement Agreement they signed with the City in 2012 required that the City change its policies, training, and tracking to ensure constitutionally based policing without inappropriate use of force. For the first time since being hired in 2014, the Compliance Officer/Community Liaison (COCL) Dennis Rosenbaum wrote a quarterly report in early July ( https://www.portlandoregon.gov/pccep/article/763644 ) which raised questions whether the police are following that mandate, repeatedly referring to the death of George Floyd and urging the Bureau to listen to the voices of the community around racial justice. While this is very late in the game for the COCL to be waking up, it is a welcome change. Because the allegations of excessive force by officers engaged in "crowd control" is still being investigated, though, the COCL reserves judgment on whether the Portland Police Bureau (PPB) is following the Agreement's mandate to de-escalate. The DOJ and COCL asserted in January 2020 that the City was in full compliance with the Agreement, meaning Portland is now in a one year "maintenance period" to prove there is no backsliding.

Portland Copwatch (PCW) continues to believe the City had not met the spirit of the Agreement even before. Lakayana Drury, co-chair of the Portland Committee on Community Engaged Policing (PCCEP), which is assigned to do independent analysis of the City's compliance, pushed back on the rosy picture painted in Rosenbaum's Q1 2020 report, saying it did not represent the Portland that he and other young black men live in. To their credit, the COCL acknowledged that pushback in the new report (on p. 50).

The COCL's Q2 report is by no means radical, focusing for many of its 50 pages on such thrilling questions as how often officers forgot to fill out all the questions on their use of force forms (less than 1%). There still seems to be a disconnect that filling the form out completely doesn't mean officers filled it out accurately or truthfully. Nonetheless, compared to the broad put-downs of community voices included in the COCL's first report, the repeated use of phrases such as "especially in light of the ongoing protests after the death of George Floyd" make Rosenbaum 2014 seem like Fox News compared to the more enlightened 2020 MSNBC version. It is likely Drury's commentary, comments by other PCCEP members, and hundreds of community members who attended PCCEP meetings in the wake of the national uprising that led Rosenbaum to recommend that the City listen to the voices of the protestors and think about changing how police do their business.

Since the only remaining disputed part of the Agreement has to do with whether Judge Michael Simon agrees the PCCEP's structure is "fair, adequate and reasonable" to remedy the pattern of excessive force the DOJ described in 2012, the Committee's recent actions are highlighted in extraordinary detail in the last chapter of the Report. This includes the extra listening sessions they held near the beginning of the protests, a number of strong recommendations made-- including one urging the City to actively dismantle white supremacy in the wake of Floyd's murder, and an op-ed by several PCCEP members asking to defund the police and redirect money to communities harmed by police.

Some of the reason this development is surprising goes back to the original investigation and findings, where the DOJ ignored clear data showing Portland's Black population being over-policed and chose only to focus on police violence against people who are, or are perceived to be, in mental health crisis. Violence against such persons, including almost every police deadly force incident in 2019, continues to this day despite all the changes made at the Bureau. The COCL quickly mentions the incident in which a houseless man, who is also mute, was shot at but not hit by Portland Officers in late June, noting they will examine the investigation in the next report. However, neither the DOJ nor the COCL has raised any concerns about police deadly force in the seven and a half years since the Agreement was signed, despite there being 34 deadly force incidents resulting in 19 deaths, since that time... and most of the victims having been in mental health crisis.

As with the last report, there are various tables and charts but nothing effectively showing how much force is being used or how people who've used the complaint process feel about the procedural justice aspects of their experiences.

Portland Copwatch continues to believe that the City should hire analysts in the next few months to support the PCCEP ensuring the police do not move further away from the (now transparently tepid) goals of the Agreement, should the Court sign off on ending federal oversight in February 2021.

Portland Copwatch's analysis of the Report below looks at the attention to racial justice, other good points made by the COCL, interesting information, ongoing concerns, data problems, and a few questions left unanswered. Page numbers appear in [brackets]. Occasional references to paragraphs of the settlement agreement are in (parentheses).

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___Unprecedented Attention to Racial Justice by Compliance Officer

In the past, the Compliance Officer has both avoided discussion of race because they feel it is too controversial and made mis-steps such as applauding the Bureau's faulty analysis of stop data based on crime victimization. They also rarely, if ever, recognize the individuals harmed by police. The new Report mentions George Floyd no less than seven times. Though a footnote on page 3 recognizes the legal case that concluded officers committed a homicide, Floyd's murder is referred to as a "death" in all seven references in the body text [pp. 3, 5/16, 9, 37, 48 and 49]. However it is notable that the COCL cites the moment of silence observed at a PCCEP meeting for Floyd and quotes their statement expressing outrage about disregard for life, in which PCCEP called for elected officials to "stand against white supremacy and police violence." These are not words that come easy to the COCL.

In their comments on training, they recommend the Bureau "train officers to intervene with peers to prevent or stop harmful actions," clearly a reference to the officers who did nothing to stop Floyd's murder [p. 6].

In addition, there are no fewer than 17 additional references to the ongoing demonstrations, including specific mentions of racial injustice [pp. 3, 6, 18, 22 &53] and racial bias in policing [pp. 5 , 16 & 54]. Some of these references have to do with training that was already given to police-- including recruits who apparently learned "how to maintain public order" and were allowed to do "site security at some of Portland's least vulnerable buildings to release more seasoned officers to cover the main protest areas" [p. 18].

But the COCL encourages the City to listen to community voices, particularly in identifying training needs for next year [pp. 5, 16 &22], going so far as to say that "including community organizations, community leaders, and community councils and committees... has never been more important" [p. 17]. This is particularly significant as PCW has raised many times the question of whether the Agreement's call to ask for community input was limited only to the Training Advisory Council (79f). The COCL also suggests that policies on crowd control and use of force reflect the experiences of the demonstrations [p. 22] and that changes to stop data collection take the protests into account [p. 54]. They applaud PCCEP's call to speed up the timeline on a proposed Truth and Reconciliation plan "given the recent demonstrations on racial injustice" [p. 53].

The COCL even comes up with specific recommendations about limiting the use of tear gas, noting the chemical agent can be bad for people who are "vulnerable to COVID-19." They urge training to use gas only if communication fails, warnings are given where the crowd is able to disperse, it is aimed at the ground in unenclosed areas, and that officers care for injured people [p. 23]. On this note, they make a rare acknowledgment of the "impact of these protests on community members who are affected by police use of force [or] are fearful of injury during protests" [p. 6].

Some of the mentions, though, are because the PPB's plans to deliver training and to fix a problem logging debriefs for supervisors who were lax in reporting were delayed due to the demonstrations [pp. 5, 16& 37].

As already noted, the COCL isn't calling for banning police violence or weapons. They say officers should receive training on "batons, pepper spray, flash bangs, rubber pellets, tear gas, and 40- millimeter Less-Lethal Launchers" around "these weapons and the proper manner of deployment to minimize injury" [p. 23]. They wisely express concern about research showing that officers who are under stress from working long hours are likely to "make mistakes" [also p. 23], academic- speak for the unrested lizard brain resorting to violence. This is contextualized by the officers being exposed to what the Report calls "painful" messages.

They acknowledge there has been criminal activity by some community members, but seem to recognize the difference between violence and property damage [pp. 3 & 23].

Finally,*-1 we note the COCL calls for strengthening accountability systems in response to the demonstrations [pp. 46 & 54], and promise to examine how well the Bureau and the Independent Police Review respond to complaints related to the protests [pp. 4 & 10].

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______Other (Mostly) Good Points Made

The COCL makes other good points, though in some cases we urge them to go farther.

The Report notes that in one incident, police broke the window of a vehicle and did not report it because the "less lethal" round was not aimed at the person. The COCL encourages the PPB to consider this a reportable use of force, but there doesn't seem to have been an agreement made [p. 15].

COCL urges the Bureau not to drop negotiation and de-escalation skill trainings as they can build trust, noting such training might be considered as outside the police's "core" knowledge base [p. 19].

No force trends were found for groups of officers. The COCL notes again that the Bureau should remove "Category IV" force (mostly low-level, except for pointing firearms) to compare these data, which would give a clearer picture if some units use more serious force more often [p. 37]. We called that idea "obvious" last quarter and don't understand why the Bureau would avoid that analysis unless they do not want to see the results.

The Citizen Review Committee (CRC) acting chair informed the COCL that they are working on ways to enhance their authority and re-open communication with the Auditor, who stopped coming to their meetings a few years ago despite being the elected official in charge of the whole system. COCL says they agree with the CRC's notion that "with the national push for police reform, citizen police review is as important as ever" [p. 45].

Continuing their awareness of the uprisings, the COCL relates that the 320+ people who attended the PCCEP's first listening session after the George Floyd protests started described "personal experiences with systemic racism and police violence" [p. 48]. This is an amazing use of words from analysts who usually deny these two ongoing problems exist.

The COCL lists a number of the PCCEP's recommendations, including asking the City to press Congress to end qualified immunity for officers, strengthening the Bureau's current requirement for officers to intervene when witnessing officer misconduct and supporting state legislation limiting when arbitrators can lower the amount of discipline a City imposes on an officer [pp. 48-49]. The Report does not mention, though, that PCCEP urged the legislature to fix the loophole in that law which requires the Arbitrator to agree that misconduct occurred to trigger the provision. They specifically recommended that a further bill be passed to limit arbitrators' decisions in use of force cases by requiring them to defer to the original finding if a reasonable person could come to the same conclusion as the City.*-2

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_______Interesting Information

The Report includes some tidbits we think are of interest to the community.

--Related to the lockdown around coronavirus:

(1) About 500 officers did not receive in service training due to the lockdown. Some training has been done on line but scenarios are on hold [p. 17]. Online training stopped once the protests became a daily reality [p. 18].

(2) The State may waive some training requirements for new officers [also p. 18]. It's not clear how this jibes with the Settlement Agreement.

--Even though it's not listed on the Bureau's website (and was not part of a PCCEP discussion of advisory groups at their July 28 meeting), the COCL reports that there is a new Latinx Advisory Council [p. 52]. PCW has reminded the PPB repeatedly that the "Hispanic Advisory Committee" that existed until 2002 dissolved when the officers involved in the shooting death of Jose Mejia Poot were given awards.*-3 Although it appears to not have been a public meeting, Chief Resch held a gathering of the chairs of all the advisory committees. It's not noted, however, that the PCCEP, Training Advisory Council and Citizen Review Committee co- authored a letter to the City demanding that they be involved in discussions about changes to Portland's oversight systems. This kind of cooperation is something PCW has long advocated for, to avoid the "atomization" of various work being done.

--Though it was not run by any community members for review (that we know of), the City apparently is implementing a new series of questions officers have to answer when they make pedestrian or traffic stops, including the reason for the stop. It is unfortunate that "training is being developed" on the new questions before the community can weigh in [p. 53].

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________Ongoing Concerns

There are a number of concerns we've raised in the past that resurfaced in the Q2 2020 Report:

After years of merely sidestepping community questions about whether the Mental Health section of the Agreement is actually in compliance with the Agreement, the COCL admits "we lack... the particular expertise in public health care system to assess whether all of the goals listed in Paragraph 90 have been met" [p. 24]. That is a rather astonishing admission after five years of these analyses. They say the Bureau and City have done all they can within the confines of who is in charge of what. Leaving out the assessment whether goals are met, though, is the basic problem we've been complaining about all along-- checking the boxes versus seeking improved outcomes. As if to prove their point, they again claim that the Unity Center represents the walk-in/drop-off center envisioned by the Agreement, even though many in the mental health peer and support community do not agree that is accurate (as we have noted many times).

It is not clear how the IPR being trained alongside Internal Affairs proves that the system is now conducting "meaningful independent investigations" (128) as asserted by the COCL [p. 44]. As we wrote in the Q1 analysis: "The Report indicates that because IPR and Internal Affairs have synchronized their trainings, IPR has been able to conduct "meaningful independent investigations. It is not mentioned they have to compel officer testimony through the PPB, nor that they are prohibited by the police contract from investigating deadly force cases. "

As always, the COCL notes that paragraph 126's requirement for officers involved in deadly force to conduct a walk-through on the scene is considered in "substantial compliance" even though 100% of officers have declined to do so since the Agreement kicked in [p. 45].

The COCL expresses their belief that the current oversight system is a floor, not a ceiling, claiming that any proposed changes must "support evidence-based improvements in Portland's accountability system" [p. 46]. We hope that evidence includes how the complainants feel about the system and its outcomes, something that hasn't been measured since 2011. This is ironic, since the COCL is a big advocate for doing community surveys to find out how people feel about their interactions with police, yet they seem to have no interest in seeking evidence that people trust the oversight system.

While the COCL did acknowledge that PCCEP disagreed with their assessment of "full compliance" at the town hall on the Q1 Report, they fail to note that the Committee's presentation to Judge Simon in February [p. 50] contained a similar caveat. While it's true they said they felt there was substantial compliance with the Agreement, they told the Judge it was with the letter, not the spirit, of the document.

The personnel roster [p. 58] notes that the Chief changed from Jami Resch to Chuck Lovell during Q2 2020. It would be fascinating to line up the rosters from 2015 through today to see how many people have held various positions in just the five years the COCL has been reviewing the PPB's work. In the last analysis we wrote: "of the 16 city employees included in the 'list of personnel,' only four of them (including the elected Auditor) are the same people or in the same positions listed in the Q1 2019 Report. Four others are the same people, but they hold new roles."

It is worth noting that when PCCEP co-Chair Andrew Kalloch left Portland for a job in early July, that left Lakayana Drury as the only remaining original member of PCCEP, which held its first meeting in November 2018, just under two years ago. There is still not a lot being done to address the massive amount of turnover in the group; original alternate member Steve Trujillo also resigned in June.

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____Missing/Misleading Data

As usual there is a lot of data included in the report which is either questionable or inaccurate.

For the second time, the COCL notes that the Bureau's quarterly Use of Force data reports include information on force used during crowd events, but those data are not on the Bureau's online dashboard [p. 12]. This is true, but the crowd data are separated from other uses of force, because if they didn't do that it would throw off the force to custody ratio that the police rely on to point to their supposedly infrequent use of force. Adding the crowd data did not begin until the second quarter of 2018, months after some of the worst police violence at antifascist counterprotests to alt- right presence in Portland. The data, which have never been highlighted by the COCL, show that there were 6 uses of force in Q2 2018 (June 30), 189 in Q3 2018 (July 25, August 4 and September 13, including 83 launched projectiles and 31 "distraction devices"), 10 in Q4 2018 (October 13 and November 17, all launched or hand tossed projectiles), 5 in Q2 2019 (June 29, 3 pepper spray uses) and 49 in Q3 2019 (August 17 and September 20, 2 pepper spray uses). There were none reported in the two quarters before the George Floyd uprising. Still, that's 205 more uses of force than the 3072 reported in 2018 (a 7% increase in included) and 54 more than the 3030 reported in 2019 (meaning 2% of force applications were left out). Since the crowd data don't indicate how many demonstrators were arrested/cited, there is no force-to-custody ratio for these incidents.

The COCL admits their analysis of use of force against people in mental health crisis is flawed-- since many incidents don't result in police custody of the community member. Yet the Report proceeds to say that in Q1 2020, only 3.2% of 314 Enhanced Crisis Intervention Team responses (10) resulted in use of force [p. 14. Even though ECIT members receive extra training in de- escalation and are supposed to be sent to the most high-risk calls, two of these uses of force involved Tasers (Conductive Energy Weapons, or CEWs). The Compliance Officer did not break out how many of the overall 4814 mental health calls ended in Use of Force. The Bureau's Q1 2020 Force data show that 23 of 170 people subjected to force (14%) were in crisis. People in crisis also account for about 14% of 632 applications of force (90).

The section about the Employee Information System once again discusses traumatic events which are entered into officers' records, but doesn't explain what those are [p. 34]. Three or more such events in 30 days sets off an alert for a supervisor to intervene.

The COCL cavalierly refers to data that may trigger supervisory alerts as "statistical noise" [p. 35]. They speculate that one reason more cases were being sent through for review which did not end up with an intervention is because the "noise" was being "reintroduced into the system." Could it also be that officers were setting off the alerts due to their conduct? Shouldn't the people hired to review these data know that?

Responding to PCW's comments (as we were the only group making public comment on the last report) the COCL notes our concern that more alerts being sent would allow for more scrutiny. The COCL "doesn't necessarily disagree" but worries that too many alerts will lead to officer distrust of the system [also p. 35].

In another effort to address PCW's concerns, the Compliance Officer team tries to show that removing allegations of force from the overall pool does not fully explain why fewer cases are being dismissed by IPR-- since the Agreement requires all such complaints to be investigated. They speculate (though it's obvious on its face) that the lower number of declines, now at a "low" of 38%, is due to more cases being sent as Supervisory Investigations and Precinct Referrals. They say that "in the past, these cases would not have been investigated" [pp. 40-41]. However, a Precinct Referral is just that-- a memo to a supervisor that a complaint was made with no requirement for a follow up of any kind. As noted in our analysis of the IPR Annual Report, *-4 Supervisory Investigations have been used at about a consistent rate combined with full investigations as their predecessors, Service Improvement Opportunities-- 44% in 2017 (pre- Supervisory Investigations) to 41% in 2019. The entire difference is that Precinct Referrals, which were used very rarely in the past, went from 11 to 76 from 2018-2019. If one includes Referrals with dismissed cases, the cases that are not investigated was 57% in 2019, similar to the 54-60% rates in the previous three years. The COCL's own chart reflects this by showing precinct referrals going from 0% of cases to 20%.

Now that the City Council has referred a stronger oversight system to the ballot, perhaps IPR will step up with more honest data, and the COCL will follow-- though we're not holding our breath.

COCL calls the redacted Police Review Board reports a sign of transparency. They refer to IPR's reports as supplemented by the division's online data [p. 42]. PCW has tried to use those online data to do our own analysis and finds IPR's interface to be limited, confusing and inconsistent. The COCL should join PCW in asking the IPR to publish comprehensive reports rather than encouraging unpaid community members to spend their time slogging through the data ourselves.

The COCL audited 20 cases which were variously dismissed, sent to precincts, or investigated by either IPR or IA. They claim all the findings were supported by a preponderance of the evidence [p. 44]. PCW has suggested that IPR give those same 20 cases to the Citizen Review Committee's Recurring Audit Committee for review so that people who actually live in Portland can do the same assessment.

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_______Unanswered Questions

There are a few issues that raised questions for Portland Copwatch for which it would be helpful to find answers.

The COCL claims that Training Advisory Council reviewed the 2020 needs assessment for in- service officer training [p. 16]. PCW generally attends TAC meetings and this review was not prominent if it did happen. Certainly there are no recommendations labelled as being from the TAC in regards to in-service needs posted on their website.*-5

The Report says people can file complaints directly at IPR's offices [p. 40], though that is likely not true since City Hall has been closed for months.

The COCL says they agreed when IPR closed three force complaints because they had "no basis in fact." To build trust in the community, the Report should describe the allegations as examples of when such serious charges are dismissed out of hand [also p. 40].

In one case the COCL reviewed, a supervisor failed to address mitigating or aggravating factors and/or how the discipline was derived from the Bureau's Discipline Matrix [p. 44]. They do not say what happened to the officer or supervisor in the outlying case.

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___Conclusion

While Portland Copwatch continues to be disturbed by the quantitative (things got done) versus qualitative (they made a difference) angle that has led the COCL (and DOJ) to proclaim Portland in "Substantial Compliance" with the Settlement Agreement, this is the first Report in which the team appears to have actually heard community concerns in the broad sense. As the City prepares to enshrine the PCCEP into Code (it is currently only existing due to the Agreement and an establishing document), they should also divert funds from the Police Bureau to fund ongoing analysis of the key aspects of the Agreement so the community can tell whether the little progress that has been made is continuing or even improving. Hiring one or more analysts who actually live in Portland would also go a long way to making these reviews more immediate and meaningful to the people who have to be subjected to or witness the daily inappropriate behavior by local law enforcement. It is refreshing that the murder of George Floyd and the subsequent uprising led to a more community-focused report, and we look forward to even stronger statements and more intense scrutiny of Portland Police in what might be the final two reports in October and January.

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___Footnotes:

*1- Other mentions of the demonstrations show up on pp. 12 and 40.

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*2-This same "reasonable person" standard is what the police used to limit the Citizen Review Committee's ability to change proposed finding at appeal hearings.

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*3- the one who shot bullets, Jeff Bell, is now the head of the Detectives division; the one who fired his Taser, Chris Davis, is now Assistant Chief.

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*4- link to IPR annual report analysis

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*5- https://www.portlandoregon.gov/police/71096

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Posted August 5, 2020