Portland Copwatch Analyzes Compliance Officer Report on US DOJ Agreement November 2022

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

REPORT: NOT MUCH PROGRESS IN PORTLAND POLICE COMPLYING WITH SETTLEMENT AGREEMENT
an analysis by Portland Copwatch, November 10, 2022

In October, the consultants reviewing Portland's compliance with the 2012 US Department of Justice (DOJ) Settlement Agreement regarding police use of force released their latest assessment Report. The Compliance Officer/Community Liaison (COCL)'s new Report for Q2 2022*-1 finds most of the same paragraphs out of compliance as their last Report, though they lifted three up from "Partial" to Substantial" compliance (79, 97 and 131) but moved two down (126, 134) and rated paragraph 169 for the first time, finding Partial compliance , meaning there is noncompliance in 24 of the original paragraphs. In addition, seven of the eight new remedies adopted in late April are also in Partial compliance, bringing the total to 31 areas where the Portland Police Bureau (PPB) needs to improve. Portland Copwatch (PCW) appreciates the COCL's sharing information with the community that gives a clear idea of some truly problematic behavior going on behind the scenes, and its stronger arguments in favor of racial justice. That said, there are again many areas where the COCL either seems to be making excuses for the City or agreeing that the PPB only has to check the boxes to be in compliance, rather than living up to the spirit of the Agreement.

One important update since the Q1 Report is that the Behavioral Health Unit Advisory Committee (BHUAC) has made some kind of plan to begin reviewing actual cases of force used on people with mental illness, prompted by comments made by PCW at a quarterly BHUAC outreach meeting.*-2 However, the COCL also reports that the BHUAC voted on a policy that they do not have to discuss comments made at those public meetings, instead insisting that the public connect to them via email or other "resources" [p. 114]. So much for community engagement!

Many of the non-compliance ratings are still due to the violence used by Portland Police against protestors in 2020 during the uprising that followed the murder of George Floyd in Minneapolis. Some of the progress in this area happened outside of the second quarter (April-June) but since the COCL often hints at developments outside the scope of the review we will say this: in the fall, the City put forward a proposed revision to the Crowd Control policy, before the consultants who were hired to examine what went wrong in 2020 talked to the community (much less released their report, expected at the earliest in January). The COCL praises the PPB for making progress in training officers around Crowd Control despite not having done a meaningful analysis or waiting for the experts' report [pp. 87-89].

If the Report is accurate, it appears that an officer involved in a deadly force incident agreed to conduct a walk through of the scene with investigators (paragraph 127)-- if so, it would be the first time since the Agreement took effect in 2014 [p. 158]. Still, the COCL and the DOJ have not expressed any concern in the rise of PPB use of deadly force, which had gone down to an average of 5 incidents per year but was eight in 2021 and eight to date in 2022.

One last key point is that paragraph 121 requires misconduct investigations to be completed in 180 days, but the investigation into the biased and racist Crowd Control training slides was not done by the end of Q2, at least 270 days after it began. Information revealed recently indicates that a Police Review Board hearing was held on one aspect of the investigation in October and the results may or may not be released soon.

Specifically, the COCL gave "Substantial" ratings to paragraph 79 on the Training Plan because elements about crowd control are now addressed in new paragraph 189. They returned the Crisis Intervention Training paragraph (97) to Substantial because the BHUAC's recommendations on the training are included in another paragraph (98), which is still Partial. Paragraph 131 on the Police Review Board improved because issues of confusion around the use of force standard and whether to mitigate the violations rather than the discipline have allegedly been solved.

The paragraphs losing ratings were 126 on interviewing witness officers, because there is no policy to allow what happened last year when an officer claimed the trauma of a deadly force incident meant they could not submit to questioning, and paragraph 134 because the Citizen Review Committee wasn't meeting often enough.

At a Status Conference on November 9, Judge Simon indicated his impatience with the City in following through on a number of items, hinting that the DOJ should file motions to allow him to intervene directly. PCW looks forward to that possibility.

In this analysis, paragraph numbers generally appear in (parentheses) and Report page numbers in [brackets].

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KEY INFO: MISCONDUCT FOUND AND NOT, CONFLICT OF INTEREST IN OVERSIGHT

In addition to the above information about the BHUAC's shutting out the community and the first-time officer walk-through, here are some key pieces of information highlighted by the COCL, though they do not always see the significance of these facts.

--An officer was found out of policy for using force against a medic during a protest action,*-3 with the Police Review Board (PRB) agreeing that the officer being stressed out was not a reason to violate policy (131) [p. 164].

--On the other hand, the COCL points out, in at least one case the Bureau took the word of an officer about a misconduct case without verifying it [pp. 173-174]. This was part of the COCL's first analysis of paragraph 169 requiring the City to hold officers accountable for misconduct.

--The COCL also noted that a Sergeant approved an officer's use of their hands/knees without de-escalating (66/67) [p. 33].

--The "Independent" Police Review (IPR), the current civilian oversight body, was struggling with loss of staff even as it moved out from under the Auditor's office in early July. The Report says the City is providing bonuses to the existing staff to retain them, and 11 of the 16 positions are still filled (128) [p. 159].

--On the other hand, the Report casually mentions that IPR is contemplating staffing the Citizen Review Committee (CRC), which advises IPR, Council and the Bureau, with people from the Community Safety Division (CSD), which reports to the Mayor... who is also the Police Commissioner [p. 167]. The inherent conflict of interest in having the police staff the oversight board should have raised concerns on its own. Moreover, the staff from CSD that has been managing the Portland Committee on Community Engaged Policing (PCCEP) since July has ruffled Committee members' feathers by presenting them with agendas and draft documents that the Committee did not work on. This does not bode well for the independence of the CRC, which needs to keep functioning until 2024 or 2025 when the new oversight board begins functioning.

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OTHER VALID CRITIQUES: FORCE, MENTAL ILLNESS, RACE AND MORE

The Compliance Officer's feedback on a number of other issues are ones PCW supports and wants to highlight, though some info was presented without a critique.

--The Force Inspector, who is supposed to alert supervisors to officers who use force proportionally more than others, is continuing to only send broad packets of information with all officers' use of force (116/117) [p. 9].

--Supervisors are reviewing deficient After Action reports on force cases but, according to the COCL, appear "unwilling" to address the problems they found (74/75/77) [p. 43].

--A supervisor was unconcerned about an officer flagged in the Employee Information System (EIS) for having more uses of force than their peers. The supervisor said this was because the officer works in the downtown core, but the COCL rightly points out that doesn't explain why that officer used more force than others working the same assignment (117) [p. 145].
---> Related issue: 177 alerts, or 55%, generated by the EIS had to do with use of force [p. 146].

--Use of Force against people with mental illness appears to be on the rise:
---> the average percentage of people with mental illness with force used against them is up from 15% to 20% between 2018 and 2022 (76) [p. 48];
---> the average number of uses of force against people with mental illness is up from 2.8 to 3.5 per incident [p. 50]
---> Enhanced Crisis Intervention Team officers, specially trained to de-escalate, used force 28 times in Q2 [p. 124] (105). PCW advises that this means these officers meant to do no harm are using force nine times a month on average against the vulnerable people they're supposed to be helping.
---> the PPB has statistics about people with mental illness making up 16% of force cases, but, the COCL notes, data are meaningless if they are treated as routine and no action is taken (76) [pp. 45-46].
---> Taser use is going up on people with mental illness [p. 55].
---> The COCL also notes that there is a racial disparity of force against people with mental illness: 24% of those subjected to force are Black, vs. 20% of people who do not have mental illness... and vs. 6% of the population [p. 57].

--Over time, 30% of those subjected to Force in Portland are Black [p. 57]. These force data are not appropriately presented to the Training Advisory Council, despite their interest in examining demographic trends (86) [p. 97].

--Racial disparities in traffic stops and searches are also apparent in data, but insufficient steps are being taken to address them (148).
---> The COCL notes the percentage of Black drivers pulled over by police was 19% in Q1 and 18% in Q2 [pp. 187-188]. A footnote talks about how the PPB is dismissive of census data, instead pointing to there being more traffic accidents in the Black community*-4 and more crime, leading officers to work in Black neighborhoods. The PPB claims only Native American people are over- represented. The COCL says the police should examine this trend anyway or they may find the PPB out of compliance; noting there are also disparities in force and arrests [p. 193].
---> Comparing precinct stops to census data, Central Precinct has a Black population of 3% but 12-16% of their stops are of Black drivers; those numbers are 6%/18-21% in East Precinct and 9%/13-24% in North.

--In a related issue, fewer traffic stops are being made for minor violations, but still one-third are for missing plates or equipment issues (148) [p. 191]. While the PPB itself recognizes that some of these stops are "pretext stops" where an officer sees, for instance, a burned out light and pulls someone over to fish for more wrongdoing, the COCL thinks officers still need discretion. Given the disparate outcomes of that discretion, PCW disagrees.

--Also related, police are using consent searches less often, but Black drivers are still asked to agree to a search more often and less likely to assert their right to refuse. Apparently the PPB's report on stop data noted that these searches are "not viewed as voluntary because of the power differential" (148) [pp. 191- 192]. A policy on searches to align with a new state law went into effect on August 1; results will likely be seen in Q3 and Q4.

--The COCL rightly expresses concern that IPR dismissed five force cases in technical violation of the Agreement (129) [pp. 160-161]. However, they let slide one case that involved hands/feet/knees saying there was no force, with no further explanation. Three others were dismissed because the lawyers would not let the victims undergo interviews, which does not constitute "lack of merit" as asserted in the Report. The last one was about a person who said they were forcibly removed from a vehicle, but similarly did not submit to questioning.

--The BHUAC did not yet review any formal policies on Portland Street Response (PSR), the non-police units sent out to mental health calls [p. 7], and spent most of their May meeting arguing about the minutes they were reviewing. They were unable to vote on recommendations for training due to a lack of quorum-- but the PPB made some changes based on their ideas anyway (95) [p. 112].
---> The Report says that the number of calls routed to PSR went up fourfold from Q1 to Q2, when there were a total of 2415 (115) [p. 142]. This coincides with the program expanding citywide.

--The COCL recommends coaching or discipline for officers who miss training, indicating this is not currently happening (81) [p. 17].

--In the new remedies section, the COCL was not able to fully assess whether the outside review of the 2020 protests was progressing because they were not kept informed (189) [p. 203].

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PLACES THE COCL MAY HAVE MISSED THE MARK

In other places, the COCL seems to be giving the PPB too much credit, or is not taking issues seriously enough that are keeping the Bureau from making real change and building community trust.

--In an incident where an officer used a Taser five times, when three times is considered the maximum before it becomes a serious use of force, the COCL found no issues. They did not describe the circumstances that would allow 50,000 volts to be applied to a community member for so long (68) [p. 34].

--One new paragraph (192) requires IPR to investigate whether supervisors gave deficient training, directed improper use of force or did not fix problems in deficient reports at the 2020 protests. The COCL warns that the terms agreed upon by the City and the DOJ might bias the investigations and somehow imagines these administrative misconduct investigations are duplicating the policy study being done by contractors on the protests [p. 209].

--Officers continue to refuse to lock up their guns when they enter the Unity Center, a mental health facility touted as a remedy for the initial findings against the PPB. The Bureau told the COCL this may be because new officers do not know the protocol, and have left a business card with the supervisor's number for Unity to call any time this happens. The COCL should instead insist on an investigation into these officers, how frequently it occurs and whether Unity staff actually makes those calls. Instead, the entire Mental Health section is found in compliance (89) [p. 102].

--The DOJ found that the Bureau violated the paragraph requiring police to halt communications after deadly force incidents (125) when a supervisor emailed information to every officer following the case where a car rammed into an officer who then shot at it. The COCL said that there was a photo enclosed asking for help identifying the suspect with no accompanying text, so had no problem with it [p. 155]. Setting aside whether the picture biased any witness statements, how could the photo go out with no text and also request help ID'ing the suspect?

--In one case a supervisor said there was no mitigation for discipline because what happened was so serious... but didn't look at aggravating circumstances [pp. 169-170]. The COCL still gives a Substantial rating to paragraph 137 on discipline though the DOJ found only Partial compliance.

--The Settlement Agreement requires a review of each officer's training twice a year. As noted in our last analysis, that is only happening once per year; the DOJ found noncompliance for this issue. The COCL says the effort still gets the PPB a passing grade (81) [p. 70].
---> Similarly, the DOJ found the Bureau out of compliance for not having conducted an audit of Training since 2018. The COCL excuses this by noting there is no time period specified in the Agreement. To be fair, they are also saying if a new one is not done by the end of the year, they will also assign Partial compliance (85) [p. 94].

--The COCL talks about how Training officers who are selected were not subjects of civil judgments, discipline or mistreatment of people with mental illness, though inappropriate use of force is also one of the disqualifying criteria (83) [p. 72].
---> In a related issue, PCW has noted repeatedly that the Agreement mentions Use of Force and mistreatment of people with mental illness as two distinct issues that might also disqualify people from serving on the Behavioral Health Response Team (BHRT), but the COCL continues to combine them as one consideration (108) [p. 126].

--The Report once again reveals the arbitrary nature of why people are disqualified from getting services: 38% of those who did not get help from the BHRT had "infrequent contact" with police (110) [p. 132]; 30% of the people turned away by the Service Coordination Team was due to lack of recent crimes and another 30% for lack of criminal history (112) [p. 137].
---> Related issue: a housing plan for people in these programs only used 66% of its beds, leading to the question why weren't those beds used to treat people who, perhaps had no police contact and no criminal history? (112) [p. 138].

--New members of the Portland Committee on Community Engaged Policing are only receiving the minimal training required around state laws. Even though members complained about not all receiving the same information, the COCL found this to be in Substantial compliance (151) [p. 199].

--The COCL asserts that "trainings such as PPB-led Community Active Shooter Preparedness were mentioned as examples of ways to increase community engagement" (84) [p. 76]. Is that really the kind of engagement envisioned by the Community Engagement Plan-- heightening the fear of crime that the PPB says it is supposed to be mitigating?

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SOME NEEDED CLARIFICATION INCLUDING CONFUSING CONTRADICTION

--While the COCL finds that the City is in compliance with paragraph 122 by conducting parallel criminal and investigative investigations of the same incidents [p. 152], they say that interviews by Internal Affairs do not take place until after the criminal investigations end (84) [p. 78]. This is a crucial issue for deadly force cases, and a clear explanation is needed.

--The COCL states that "communications can provide community engagement through IPR referrals" (84) [p. 76]. It is not clear at all what this means.

--The Report speculates that a drop in use of force against people who are unarmed (see next section) may be due in part to "de-policing" [p. 51]. It is not clear if this means officers are not wanting to do their jobs, do not have enough staff to respond to calls, or if officers are being told to not take action.

--The COCL finds one of the new paragraphs (190) in Substantial compliance because the City budgeted overtime specifically to ensure officers can get trained. They say the rating will fall to Partial if the budget is cut [p. 205], but wouldn't that result in a "Non-compliance" rating?

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OTHER INFO OF NOTE / CONCERN

--The COCL makes several well-deserved disparaging remarks about the City's new website, which looks streamlined but is very difficult to navigate [pp. 10, 25-- calling for one page for all advisory boards, 172-- noting how hard it is to find the tracking page if you have a case filed with IPR, and 183-- regarding the lack of advisory body minutes or presence of only those from 2016-2019].

--The Report reveals that the City has chosen Axon, formerly known as Taser International, for its body cameras. The COCL encourages the City to look into Axon's ability to tie the body cameras to a community survey (194) [pp. 30 and 215]. Since the cameras are de facto surveillance tools, it seems even more big-brothery to tie the ubiquitous recording to a survey asking what you thought about the interaction.
---> Related issue: The negotiations on body camera policies are still going on since February, with the COCL warning that if the Portland Police Association and City do not agree, arbitration could delay implementation by six more months.

--The COCL notes there has been an overall drop of use of force against unarmed people from 2018 to 2021-- dropping from 648 to 476, a 36% decrease [p. 53]. However they went up from 425 in 2020 to 476 in 2021, so that was a 12% increase. Armed people have been involved in about the same amount of incidents over that time, with the number at 285 in 2018 and 277 in 2021.

--Despite pledges to support the PCCEP, the Mayor has not responded to recommendations they made about releasing force reports, adding the group into City Code or recommendations on crowd control since Q3 2021... a full year (142) [p. 177]. PCCEP's guidelines require a response in 60 days.

--The PPB has revived its Community Police Academy, holding its second session in May. They go over policy, tactical decision making and firearms in 10 hours including scenarios (145) [p. 185]. It's not clear whether input the COCL says will come from advisory groups will consider whether this is a training or an indoctrination.

--The COCL uses the term "suicide by cop" in describing Special Emergency Reaction Team training scenarios, even though it is a homicide when officers kill civilians (84) [p. 76].

--The Report notes that Sergeants are given training about the Portland Police Association bargaining agreement... which seems unnecessary since Sergeants and officers are all members of the PPA (84) [p. 81].

--The functioning of the CRC (paragraph 34) is now listed as being in partial compliance because they only held one of eight scheduled meetings in Q2, and engaged in what the COCL called "public infighting" [p. 167]. To be fair, though, the CRC is only required to meet once per quarter.

--The DOJ approved the new discipline guide adopted by the City and the PPA in Q1, but it wasn't yet implemented in Q2 (137) [p. 170].

--The COCL commends the Bureau for sharing its draft Annual Report with the PCCEP and putting it on the website before the June meeting (150) [p. 196]. However, the PCCEP never let the community know the Report was posted, and that meeting wasn't publicly promoted until the day before it occurred.

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CONCLUSION

Once again, PCW is thankful to the Compliance Officer for sharing so much information, but believes the same information can be relayed in reports that are not 200 pages long. The COCL recently announced their intention to retire at the end of June 2023. PCW is one of the only entities in the city that reads and responds to these Reports, and will miss the experience brought by the COCL over the last seven-plus years. That said, we are hoping that the City continues to have outside eyes reviewing the Bureau's actions, whether in the short term that is a new COCL or a Court appointed monitor, or in the long term is some kind of auditor not housed within the Bureau and not beholden to the City Attorney.

We remind everyone involved that the point of a Settlement Agreement is that the City said they would voluntarily make changes to improve policing and build community trust. The ongoing reluctance to implement common sense reforms that meet those goals but aren't explicitly outlined in the Agreement just shows that perhaps the City was never really interested in making improvements.

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Footnotes:

*1- Find the Report at https://tinyurl.com/COCLq22022 .
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*2- Though at the Status Conference in court on November 9, it sounded as if the BHUAC will be receiving data rather than case summaries.
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*3- Putting the pieces together, PCW believes this was Officer Brian Wheeler, who pushed Evelyn Cushing to the ground in September 2020. On October 26, City Council awarded Cushing $47,500.
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*4- PCW has conceded this point on traffic stops, but still, the percentage of Black drivers involved in accidents is about 11%, above the 6% population demographic, but below the 18% of traffic stops.
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Posted November 10, 2022