Feb. 2022 Police Review Board Report: Three Officers Disciplined (Plus One Not ID'd) for Protest Actions

Table of contents
Four Protest Cases, Three Sustained Findings
Speeding Cop Crashes Car, Gets Suspended
Sexist Supervisor Eludes Discipline
PCW Ongoing Suggestions for Better Reports

To: Christopher Paille, Police Review Board Coordinator
    Chief Chuck Lovell, Portland Police Bureau
cc: IPR Director Ross Caldwell
    Auditor Mary Hull Caballero
    Mayor/Police Commissioner Ted Wheeler
    Citizen Review Committee
    US Department of Justice and Compliance Officer/Community Liaison
    Members of the media
    Portland Copwatch

Feb. 2022 Police Review Board Report: Three Officers Disciplined (Plus One Not ID'd) for Protest Actions
an analysis by Portland Copwatch
March 6, 2022

Mr. Paille and Chief Lovell:

Once again, Portland Copwatch did not notice the latest Police Review Board (PRB) Report for a while after it was published, this time just under two weeks later. The Report, whose metadata indicate it was ready on February 16, includes a scant six cases and is located at https://portlandoregon.gov/police/55365 . In the last PRB Report, two cases of misconduct at protests were not originally found out of policy, but the Chief changed the findings; this time, there are three out-of-policy protest incidents, one where it appears the Chief intervened again. In the other two, the Board itself proposed "Sustained" findings and the Bureau agreed.

For the uninitiated, the PRB meets behind closed doors, in most cases only includes one community member in a five-person review board (but two of seven members when there is a shooting or other serious case). The Board then can recommend disciplinary action to the Chief.

The first protest case (which we call case C1) is likely the case of Dmitri Stoyanoff, who was attacked by officers while holding a sign about registering people to vote. The officer in this case resigned, apparently in the face of being disciplined; the Report shows a 4-3 vote against Sustaining the allegation, but the cover sheet lists category "D" discipline, which includes days off without pay. The second (C2) is an incident where two separate officers drove police cars through a barricade erected by protestors without using lights or sirens. One officer was given Command Counseling while another was never identified but was also found guilty. The third (C3) was a Letter of Reprimand for an officer who pepper sprayed someone standing near a car without justification. A recurring theme is the Board asking for lenience based on the "chaotic" nature of the 2020 racial justice protests, including a request to bend the rules for cops who are found to have used excessive force but are engaged in certain special roles.

There was one other case resulting in discipline-- an officer drove 90 miles an hour in a 30 MPH zone without lights or sirens, leading to a collision (B/C 1). That officer was given two weeks off without pay.

The dates of the hearings are all between April and December of 2021, though four of the incidents occurred in 2020. PCW continues to urge the Bureau to put out the Reports on a quarterly basis-- and to publicize their release so the community knows the few bits of information we're being fed in the name of "transparency" are ready to consume.

Of the six cases, apparently only one landed before the Board because their supervisor found misconduct, though it's hard to say because the Report says it was assigned because of City Code 3.20.140(B)(1)(b). All five other cases were controverted (non-sustained findings recommended to be Sustained) by the "Independent" Police Review (IPR), an Assistant Chief and/or Internal Affairs. There were eight officer involved shootings in 2021; it is concerning that none of them are included in this Report.

In at least one case, Board members used the term "Not Sustained" when they claimed the officer's actions were within policy; this means they thought the finding should be "Exonerated." Yet nobody within the system corrected the error; PCW called attention to this issue in previous analyses. "Not Sustained" means "Insufficient Evidence," the previous title for the finding. Returning to using that term would make it clearer to Board members.

Also, the speeding officer's case was labelled as a "B" case by the Bureau, thus ignoring the person whose car was crashed into as a potential complainant who might have wanted to appeal the outcome. Portland Copwatch (PCW) labels such cases as "B/C," while Bureau only cases are "B" and Community member cases are "C" (which the Bureau has appropriately used in four cases this time).

The two cases not addressed above are one where an officer fired "less lethal" rounds at someone standing near a hotel during a protest, but the finding was "Not Sustained" (C4), and what appears to be a female officer complaining that a supervisor tends to assign women to clerical duties more often than men (B1); the supervisor was "Exonerated," old boy.

As far as the case where it appears Deputy Chief Chris Davis over-rode a 4-3 majority in the protest sign incident, the Report does not explain why the Chief's office deviated from the PRB recommendation. This is a too-strict reading of the ordinance, which only requires that they explain when they deviate from the discipline guide.

There were also a total of nine recommendations made by the Board across five of the cases, and the cover memo gives some details of the Bureau's response, though one is ignored and another is just labeled as "accepted." Several were rejected with flimsy explanations.

This Report also brings back the unfortunate practice of redacting information about people's ranks, genders, assignments, and locations. Some information slipped by the censors-- the protestor with the sign in C1 is referred to as "him" and the redacted location is, one sentence later, identified as a hotel in C4.*-1

The lack of transparency also extends to the voting, where it's not clear who voted which way. Publishing such information could lend more credibility to the Board, as the public would know when some of the police members, who make up the majority, voted to find officers violated policy. In the car crash case, the vote is described as "unanimous" so it's unclear even how many people voted.

The Board reviewed just seven allegations. They found four Sustained, one Exonerated and two "Not Sustained" (again, perhaps that was changed by management). This makes for a 57% Sustain rate, higher than the 36 or 38% in the last Report, but perhaps less statistically significant because of the small sampling.

The PRB is also severely restricted in their work. Twenty-two allegations in four of the cases were not presented to the Board for review. This does not make sense since all of the investigations depend on learning the "totality of the circumstances." Thus it is possible one of the reviewing bodies did not consider all factors when deciding not to Sustain those allegations being kept away from the Board.

While the rules were changed a while back to allow officers to admit wrongdoing and agree to punishment through "stipulated discipline," no cases fit that category this time.

It appears that Portland Copwatch is once again scooping the media in reporting on this document. Our interest was piqued with disclosures about the PRB's decision in the Officer Hunzeker case, where they only recommended a short suspension, the Chief extended that suggestion, and the Mayor acted to fire the former Portland Police Association President for his inappropriate leak of information (we will address this in a future analysis). In any case, being more transparent about the release of the Reports would build more community trust.

With regard to the redaction of information, this goes one step too far in the pepper spray case (C3) where the ranks of those who made and controverted findings are replaced with "Employee 2" and "Employee 3." Give us a break!!!

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As noted in our last analysis, the City reported over 125 complaints related to the 2020 protests. Yet combined with the previous Report, only seven (that we know of) have been heard by the Police Review Board. IPR's online dashboard, which previously only showed one Sustained Force allegation in 2020, now shows four*-2-- presumably the two the Chief overrode previously and the pepper spray case here were added. This again leads to the question about whether the sign incident led to a Sustained finding or not.

Here are the details on the four cases.

(C1) During a protest, the police were ordered to confiscate weapons from people in a park. For some reason they approached the man holding a sign on a pole, confiscated the sign and pepper sprayed him, struck him in the knees and took him to the ground. IPR initiated the investigation. Four Board members found this force against someone who wasn't threatening anyone to be "reasonable," claiming the complainant was "still resisting" after being taken to the ground. Three felt things were reasonable until the one officer (probably Matthew Bigoni #50904) struck the man in the knees, feeling he should have been given a chance to "surrender" (um, maybe, "comply"?). They felt the man was essentially under control the whole time so the strikes were unnecessary.

The officer's supervisor exonerated the officer, but IPR and an Assistant Chief controverted the finding. The PRB's 4-3 vote then, as noted above, _may_ have been overturned by Deputy Chief Davis. The three members of the Board had suggested a Category "C" discipline with one day off; the cover memo lists a higher category but not the presumptive discipline. This is important as there is a new footnote on the cover memo about the Bureau continuing investigations even after officers resign, then sending that information to the state Department of Public Safety, Standards and Training (DPSST) so if officers try to get a job elsewhere, the record will show their bad behavior. If this was Officer Bigoni, he resigned from the PPB on March 28 to join the Clackamas County Sheriff's Office, but the PRB hearing was not until June 23.

The fact that this was heard by seven people and not five means this was considered a serious force incident.

The recommendation in this case was to revise the City Code (20.12.050) which defines what a "weapon" is, since the picket sign pole would not necessarily qualify. It's not clear whether the PRB means to imply that anyone with a picket sign is de facto holding a weapon; we hope not. The Deputy Chief said they would look into how the code is applied about objects people have in parks.

If this is the Stoyanoff case, it's notable that the City agreed to pay a $100,000 settlement for the violations of his rights, but without admitting any wrongdoing.

(C2) The two officers who drove through the protestors' barricade were followed by three other vehicles which did use their lights and sirens. The three member majority on the Board pointed out that Directive 630.10 gives some exceptions to driving through red lights but none were present at the time. The two dissenters said that the area was well lit, so the protestors could see the cars approaching. They called the use of a siren "redundant," which raises a question about whether they considered any blind people who may have been in the area.

While the majority did find the officer violated policy and endangered community members, they did not think the driving was "reckless" in part because the officer had asked their Sergeant before crashing through the barricade. This was also cited by the minority. We wonder whether the Sergeant was investigated.

As noted above, the one officer who was identified was given Command Counseling, the lowest form of discipline, and the other officer was never identified.

There were four recommendations attached to the findings. The first, asking that all cop cars be outfitted with GPS, lights, sirens and computers, was called "impractical" and rejected by Deputy Chief Mike Frome (who took over for Davis in July). The second asked for officers to be trained to deal with protests in a way to minimize risk. Frome said the Bureau already is training officers what to do if they are blocked during a demonstration. The third was to require reports to be written when actions like the barricade breach occur; Frome's response is that no report was required in the case under review. Uh, that was their point, right? Finally they asked that there be leniency for policy violations during protests, a rather concerning idea that Frome said is underway...

The case got to the Board because IPR and Internal Affairs controverted the findings.

(C3) It appears that the complainant in this case was standing 5-10 feet away from a vehicle which had an open driver's door and a running engine when police approached them. Even though the person wasn't actively resisting, nor could the police know for sure they were the driver of the car, the cops approached them and pepper sprayed them to prevent them from getting into the car and using it as a weapon. This case was also considered by seven Board members, with a four person majority finding that the officer focused too much on the car and not enough on the person's actions. The officer and the three dissenting Board members thought the fact that the person was wearing goggles on their head indicated they were willing to engage in physical resistance. Commentary: given the over-use of chemical weapons by the Portland Police and federal law enforcement, it could also be seen as self-defense to wear goggles. OK, back to the story: The dissenters on the Board also pointed out that there was "unending civil unrest," that officers weren't getting time off, a dumpster had been set on fire and the person did not disperse when ordered. None of which justifies use of force. It's unclear whether there was evidence the person moved toward the car-- the majority said there was not, the minority said it was indicated in the supervisor's After Action Report. Oh, and the officer did not give a warning before using the pepper spray because they thought it would lead to needing a higher use of force.

The four more rational members suggested either a Letter of Reprimand (two people) or one day off without pay (two people). In their logic they noted the officer is of a "higher rank." Chief Chuck Lovell agreed with the lesser course of action and gave the ranking officer a Letter of Reprimand. There were no recommendations in this case.

This case was the one where it's not clear who controverted the findings because of over-redaction in the Report.

(C4) This is the incident that took place outside of a hotel, where the officers told "guests" to go back inside, then fired a less lethal "sponge round" at the civilian and headed back to their vehicle. There was surveillance video but it only showed the officer. Strangely, the witness who was interviewed did not have matching testimony to either the officer or the civilian, thus five of seven PRB members appropriately applied the "Not Sustained" finding-- there wasn't enough evidence to prove or disprove excessive force. It was noted that downtown was supposedly "closed" due to the protest going on that day. The minority of two Board members (was this the two civilians? who knows?) felt there was no evidence the protestor had engaged in active aggression; the officer said they fired the weapon because the person reached into their pocket. The two people felt the police were painting everyone with the same brush instead of focusing on this one person's actions. However their suggestion was to see whether the Directive on Force should be rewritten to be different in crowd situations.

Deputy Chief Frome agreed with the majority and applied the Not Sustained finding.

The Board made a recommendation to ask the US Department of Justice (DOJ) to allow an officer who deviates from the Use of Force policy in a "minor" way to not be disqualified for certain roles. This indicates that the officer in this case was either involved in the Training Division or the Enhanced Crisis Intervention Team. The DOJ Agreement with the City says that someone found out of policy for use of force cannot be assigned to those roles. Two things about that: one is that if this officer fired on someone who wasn't engaged in active aggression, that's not a "minor deviation," that's a serious violation of rights. The other is that there are reasons for these DOJ rules, which is to keep the wrong people from being in these assignments. Nonetheless, Chief Frome agreed to talk to the DOJ.

This case came to the Board because IPR controverted the finding.

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(B/C 1) As noted above, an officer drove his car 90 miles an hour in a 30 mile an hour zone, wasn't using lights or a siren, and crashed into another vehicle (the condition of that driver is not noted in the PRB Report). The officer claimed they were trying to chase after a suspect who sped away-- but did not radio in that they were initiating a chase. The cop also was not aware how fast they were going. They apparently had three similar incidents in the past three years as well.

Thus in addition to the two weeks off without pay, which Chief Lovell agreed to, the PRB suggested the officer be moved to a position where they don't have to drive. Deputy Chief Davis "declined" this to allow the officer to improve (again?). The PRB also said to ask whether the Risk division at PPB could still insure this officer, a reasonable question. If Davis responded to this idea, it is not noted in the Report.

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(B1) Because there is so much blacked out here-- genders, assignments, ranks-- it is hard to say for sure, but given the society we live in it's most likely, as noted above, this is about a female employee who did not want to take reassignment to a clerical job and accused her supervisor of unequal treatment. One Board member wanted the finding to be "Not Sustained" with a debriefing on equity; one wanted to Sustain the finding and give the supervisor Command Counseling. But the majority of the Board, three people, said the Supervisor was "Exonerated" because the Bureau worked with "business partners" and offered the complaining officer another job that she rejected.

This case came to the Board because IPR controverted the finding, meaning they were likely the sole vote to Sustain.

A recommendation was made to identify equity issues related to assignments, the Bureau's response was that it was "accepted."

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PCW continues to ask the Portland Police Bureau (PPB) to include the following data points to improve the readability, clarity and transparency of the Reports:

--the date of the incident in question
  (the date was not given in any of the six cases);

--the number of voting members and number of votes
  (as noted, in one case the vote was listed as "unanimous");

--which opinions were from officers, civilians,
  IPR staff, or Bureau management;

--the gender of all persons involved (both for clarity in
  narratives when using pronouns and to reveal power dynamics);

--the names of officers, particularly in cases which have already
  been reported in the media and the PPB's website;

--more thorough background summaries for all cases, especially
  in deadly force cases;

--an explanation of the delay in publishing a case;

--a general summary of the purpose of the PRB with a citation of the
  City Code that created it;

--reports on the progress of PRB recommendations,
  (which should go beyond saying if they were "accepted"
  and add whether/how they were implemented); and

--a list of the names of the civilian members of the Board, which
  is public information and would enhance the Report. (This is not
  a request to say which civilian sat on which Board, just a list.)

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Portland Copwatch continues to appreciate that there is at least some information being shared with the public. We hope that the Bureau, as a self-proclaimed learning organization that is always trying to improve, will engage the community by publicizing the release of Reports, hold public meetings with the community PRB members when the Reports are released, and include the information we've been suggesting for years in all future Reports.

While there was not as much anti-protestor language in the case summaries, the fact that the Board requested a few times-- and the Bureau agreed-- to loosen the rules around use of force for officers who are assigned to protests is quite disturbing. Bad policing is bad policing.

We hope to hear back from the PPB someday on these comments.

--dan handelman
--Portland Copwatch


*1- There are also a few typos, one of which refers to a person who "alluded" police in a car (B/C 1).

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*2- retrieved March 2, 2022 at https://www.portland.gov/ipr/charts/police-misconduct-allegations-3 *2- City Code 3.20.120 (H) (4).

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Posted March 6, 2022