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Portland Copwatch Testimony on
US Dept of Justice/City of Portland Settlement (Section 6)


Summary: Policies should clearly limit the amount of force the PPB is allowed to use; violations should have serious consequences; officers should not have special rights when being investigated; and cops should not be left alone to investigate other cops.

Because the DOJ investigation found a pattern or practice of excessive force by the Bureau, looking at how the City has chosen to begin implementing the Agreement on this issue is illustrative of their overall efforts. It seems as if they are taking the court's question of whether remedies are "adequate" to mean "do they minimally conform to what the Agreement requires?"

In fact, the Agreement requires the force policy to include language about using "only the force reasonably necessary" and to "develop... the skills... to regularly resolve confrontations without resorting to force or [using] the least amount of force" (paragraphs 66 a&b). Yet when the Bureau released its revised Force policy on December 13, those words are no longer found in it *-23 even though they were in the existing Directive when the DOJ investigation began,*-24 and in the "final draft" released in February 2013 (Exhibit F-PCW). The new Directive talks about a commitment to train officers to "effectively resolve confrontations through the application of de-escalation tools and lower levels of force"*-25 as opposed to no force or "the least amount of force."

In revising the policy, the Bureau discusses the legal standard (Graham v. Connor, reasonable in the totality of the circumstances), but they removed the reference saying that by its administrative policies PPB Use of Force has to both meet the Graham standard and meet the City's higher standard. It now simply prohibits force that is "not objectively reasonable."*-26 It is discouraging that in the Force policy the City focused on the Constitutional standard, which may absolve officers of wrongdoing in a court case examining the legality of their behavior, but moved policy issues about their administrative expectations elsewhere.

The City removed and reworded the "develop skills over time" language, moving that phrase to its "Satisfactory Performance" directive*-27 while adding a sentence stating the Bureau "requires that members... apply effective force when necessary."*-28 This is different from other language which says officers should be capable of using force "when appropriate"*-29 and could mean that officers will be disciplined for failing to use force, a contrary notion to the principle of reducing PPB violence.

So even though the Agreement calls for police to de-escalate their use of violence as the resistance from the subject(s) decreases (paragraph 67-c) and encourages officers to "use disengagement and de-escalation techniques when possible," it seems that the Bureau is leaving loopholes for force to be used as it always has been-- with impunity.

We have called repeatedly for the City to reinstitute some variation on the "continuum of force" that once was part of the Force Directive, at least to make clear the maximum force that can be used against certain kinds of threats.*-30 We feel that the community and the police would both benefit from the clarity that such a set of guidelines would provide.

Another example where the Agreement itself is not adequate to address the problems found by DOJ is in describing a discipline guide (paragraph 137), which reasonably calls for discipline to be "predictable and consistent" but doesn't call for terminating officers for egregious rights violations.

Another huge disappointment in how the City has so far been setting up to implement the Agreement is the many provisions they chose to leave in place in the Portland Police Association contract. While the Agreement defers to the "just cause" provisions of the contract (paragraph 131c), acknowledges that some changes may take time because of bargaining issues (paragraph 180), and asks the City to keep DOJ apprised of negotiations (paragraph 189), it does not include direction for removing contract provisions that are really public policy issues as opposed to workplace issues of fair wages, safety, or benefits. As such, the City left in a number of provisions that the DOJ (and the community) identified as problematic, such as the 48-hour rule allowing officers two days before being compelled to testify about alleged misconduct (PPA Contract*-31 and DOJ Findings Letter p. 31: "It is difficult to conceive of PPB officers permitting [a] civilian 48 hours before asking him or her questions").

The Agreement also does not call for strong changes to the policy on medical attention to people injured by police. It only vaguely touches on following protocols in the Taser section (paragraph 68-c), and for supervisors to ensure medical attention once they are on scene (paragraph 70-c), which may be too late. The DOJ Findings Letter suggested: "There should be a bright line rule that whenever an injury occurs or whenever a subject complains of an injury, EMS is summoned" (p. 37).

Furthermore, while the Agreement calls for all Use of Force complaints to be investigated, it allows dismissal if the IPR finds "clear and convincing evidence" to drop the case (paragraph 129). There is no provision for an appeal by the complainant to challenge this evidence. Under the Agreement, the investigation into Use of Force begins on the scene, when a supervisor is supposed to show up and conduct an investigation (paragraph 70 and PPB Directive 940.00). There is no analysis that the immediate supervisor is usually a Sergeant, who is in the same collective bargaining unit as the officer. We suggest that the City be directed to send a civilian investigator from IPR to the scene of Use of Force as well as, or instead of, the Sergeants.

*-23- Directive 1010.00 December 2013, Exhibit E-PCW
Back to text
*-24- Directive 1010.20 2009 Manual of Policy and Procedures
Back to text
*-25- Directive 1010.00 Sec. 4.9 December 2013, Exhibit E-PCW
Back to text
*-26- Directive 1010.00 Sec. 4.1 December 2013, Exhibit E-PCW
Back to text
*-27- Directive 315.30, December 2013
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*-28- Directive 315.30 Sec. 2.3, December 2013
Back to text
*-29- previous Directive 1010.20 and December 2013 Directive 315.30 Sec. 2.3.2
Back to text
*-30- for example, in our "Comments on Revised Drafts of PPB Force and Taser Policies," March 18, 2013, Exhibit G-PCW
Back to text
*-31- Portland Police Association Labor Agreement, Section (2010 language unchanged in 2013 renewal)
Back to text

DOJ Letter of Findings (September 12, 2012)

DOJ / City of Portland Settlment Agreement (November 14, 2012)

Next Section: 7. Mental Health Provisions

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Testimony sections:

1. Appealing Findings
  on Deadly Force Cases

2. Taser Use
  and the DOJ Agreement

3. Accountability--
  Independent Police Review

4. Accountability--
  Citizen Review Committee

5. Accountability--
  Police Review Board

6. Use of Force
  and the DOJ Agreement

7. Mental Health Provisions
8. Training
  and the DOJ Agreement

9. Tracking Police Contacts
  / Demographic Information

10. Implementation and

11. Oversight of the
  Agreement / Conclusion

(Additional Materials

Testimony in pdf format
  (16 pgs)

Portland Copwatch
PO Box 42456
Portland, OR 97242
(503) 236-3065/ Incident Report Line (503) 321-5120
e-mail: copwatch@portlandcopwatch.org

Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.

Posted January 31, 2014

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