Table of contents
Introduction
Officer Fired for Lying
PPB Only Focuses on Officers in 2 Community Cases
Biased Comments by Training Officer Can't Be Proven
Three Negligent Discharges Lead to Time Off
Data We Keep Asking For
Conclusion
Footnotes

From: Portland Copwatch

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

First Police Review Board Report of 2021: One Officer Fired for Lying Among Five 2019 Investigations; Two of Three Cases for Negligent Firearm Discharges Involve "Stipulated Discipline"
an analysis by Portland Copwatch
March 19, 2021

Mr. Paille and Chief Lovell:

A reporter alerted Portland Copwatch that the Portland Police Bureau released the first Police Review Board (PRB) Report of 2021 in early March (posted at https://portlandoregon.gov/police/55365). As usual, this includes misconduct cases reviewed by the PRB based on proposed Sustained (out of policy) findings and cases where a reviewer controverted a proposed finding. Unfortunately, the PRB only includes one community voting member in most cases, two if it is a serious use of force case. The August 2020 Report included deadly force incidents dating until July 2019, but none are included this time-- even though the Koben Henriksen case was closed out before February 3.*-1 The new Report includes a scant seven cases, including one in which an officer was fired for violating the Truthfulness Directive and three involving negligent firearms discharges. Significantly, two of those cases are the first reported "Stipulated Discipline" outcomes of misconduct allegations, meaning officers agreed to take responsibility and whatever discipline was proposed, thereby bypassing the PRB.

While there is a lot to be said for officers willing to agree to be held accountable, this system bypasses two important aspects of the oversight process. First, any questions raised about the officer's conduct that is not addressed in the Stipulated Discipline will escape scrutiny. The negligent discharge case heard by the PRB (B1) included three allegations; the Stipulated cases involved just one (B4) or two (B3). Second, without sending the case to PRB at least for procedural reasons, nobody is making recommendations to avoid future incidents. This is particularly important since these three cases all seemed to happen in late 2019 and early 2020. One more issue with Stipulated Discipline is that these cases are only summarized in the cover sheets to the Report, with far less detail then even the redacted and confusing case summaries of PRB hearings.

Regarding the Report publication timelines, Portland Copwatch had suggested to Chief Outlaw that the PRB reports be put out once every three months instead of only the required twice a year. The most recent Review Board hearing included in this packet happened on May 20, 2020, and all five PRB cases involved incidents from 2019. The public deserves more timely reporting.

Interestingly, the officer in the Truthfulness case also failed to engage in a low-stakes foot pursuit, though it's not exactly clear what the alleged crime was in the underlying incident where the suspect walked away at a "brisk pace" (B/C 2).

The remaining three cases were about failure to report Use of Force, a typical finding where the Bureau is harsher about paperwork than use of violence (B/C 1), giving out information outside proper channels (B/C 3), and a Field Training Officer who allegedly made biased remarks about community members to their trainee on several occasions (B2).

Of the seven officers facing potential discipline, one had their findings overturned (the biased remarks case- B2), one received a Letter of Reprimand (the force reporting case- B/C1), four received one day suspension without pay (the three negligent discharge cases- B1, B3 and B4, and the information leak-B/C 3), and one was fired (for lying- B/C 2). While it is our understanding that the Chief is supposed to explain why they deviate from Board recommendations, there's no explanation why Chief Lovell lowered recommended discipline in the first discharge case or why Deputy Chief Davis overturned the biased remarks case. It's worth mentioning, though, that the cover memo (for the first time in a long time) vaguely describes what happened to the three recommendations made by the Board.

As usual, Portland Copwatch is objecting to cases which involved community members but were labeled, incorrectly, as "B" cases ("Bureau only"). This is true for the force reporting case (B/C 1), the lying case (B/C 2) and the information leak (B/C 3). It's unlikely the community members involved would have appealed the outcomes of these cases for different reasons. However, per City code establishing the Independent Police Review (IPR), any case involving a community member is supposed to be labeled a "C" case.*-2 This is particularly of concern in the Truthfulness case, because the officer allegedly lied to a community member about whether President Obama created policies restricting officers from capturing suspects. There are no community member ("C") cases in this Report. Our case numbers follow the order they appear in the PRB Report, which is generally chronological.*-3

As a reminder to people outside the Bureau reading this analysis, PRB hearings are closed to the public-- including complainants and families of those shot by police. The majority of Board members are police officers (an Assistant Chief, the officer's commander, and one or two cops of the same rank as the accused), an IPR staff member, and one to two community members. While some of the Review Board facilitators are good about indicating whether the Board was made up of five or seven people, sometimes the vote is given as "unanimous" and it is only by chance the public can tell how many members were involved. In this Report, case B/C 1 was listed as a "unanimous" vote, but because four members requested a Letter of Reprimand and one recommended Command Counseling, it can be deduced it was a five-member Board, as were the other four PRB cases.

The Board reviewed 12 allegations, leading to eleven proposed Sustained findings and one of "Not Sustained" (insufficient evidence) with a debriefing. As noted above, one Sustained finding was changed by the Chief, with the final decision being Not Sustained with a debriefing. The two Stipulated Discipline cases involved three additional Sustained findings. Due to the lack of deadly force cases, this means the PRB Sustain rate was 92%, an all time high. Factoring in the Stipulated Discipline, the Report contains 15 allegations and 14 Sustained proposed findings for a 93% rate. The changed finding brings those totals down to 83% and 87%, respectively.

As for who sent the cases to the Board, this time officers' supervisors (RU Managers) sent three cases to the Board (B/C 2, B1 and B/C 3), while an Assistant Chief referred cases B/C 1 and B2 for review.

We noted in our opening that this Report was first found by a reporter who contacted PCW. In the last several releases, we were the first to find and report on them. We continue to wonder why the Bureau does not send out notification via email and news release that the Reports have been published, particularly when so much is made of the transparency and community engagement aspects of the Bureau.

There also continue to be redactions, the majority of which occur in the summary of the Force reporting case (B/C 1), where other agencies and the PPB Precinct involved were blacked out. The thin narratives also cause confusion, as we will explain further in our analysis of the lying/foot pursuit case below (B/C 2).

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OFFICER FIRED FOR LYING AFTER FAILING TO BRISKLY WALK AFTER SUSPECT

(B/C 2) Sometime in 2019, two officers were called to a welfare check, with Officer 1 telling Officer 2 not to respond right away, pulling their patrol car over before attending to the call. When they ultimately arrived, Officer 1 did nothing as a person described as a "suspect" walked away at a brisk pace. Here we note that a welfare check usually has to do with seeing whether an individual needs assistance, so the narrative became confusing when the person was described as a suspect. Later context indicates there was some kind of dispute within a family that involved alleged criminal behavior.

Officer 1 told Officer 2 not to go after the person because "we don't chase known suspects." #1 also told witnesses that such a rule was put in place under President Obama. As the Report gently puts it, that statement is "not factually based in law or policy."

Ultimately, Officer 1 faced five allegations. First, unsatisfactory performance for failing to respond to a priority call (again, it's unclear how a "welfare check" is also a "priority call," but let's roll with what's reported). Second, a conduct violation for failing to chase after the suspect. Third, a combined performance and conduct violation for telling Officer #2 to wait and not to chase the suspect. Fourth, separately from the second allegation, a violation of the Foot Pursuit policy and "Laws, Rules and Orders" for telling the witnesses the incorrect information about Obama. And finally, the Truthfulness violation addressed five areas of false or withheld information: (a) why they delayed their response, (b) why they pulled over, (c) what they said to "victims and witnesses," (d) not contacting the suspect, and (e) what they said to Officer 2. On that last point, PCW notes that is a they said/they said scenario, but given the broader context it's more likely than not Officer 2 had no reason to make that up. The specific lie pointed out in the Report is the Obama quote, which Officer 1 didn't admit until they were asked about it.

All allegations and the recommendation to fire this officer were unanimous 5-0 votes; Chief Lovell agreed and terminated their employment. Since the case was heard on October 30, 2019, it's not clear why it took until at least June 2020 (when Lovell was promoted) to finalize the discipline.

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BIASED COMMENTS BY TRAINING OFFICER CAN'T BE PROVEN

(B2) For what it's worth, most community member complaints about police do not end in Sustained findings because there is not enough (or any) independent information to verify either the officer's story or the complainant's. In this case, the recruit who turned in an evaluation of their Field Training Officer (FTO) mentioned the FTO made racially biased comments. The first allegation in this case is actually about profanity, which the FTO didn't deny but also didn't recall. The recruit says the FTO was upset they didn't get to a burglary scene quickly because the recruit wasn't sure how to find the described location, and that the FTO swore and physically hit the onboard computer in the squad car. The Board voted to Sustain this complaint on a 5-0 vote, which would never have happened for a community complaint. So while Portland Copwatch tends to believe the stories of complainants, we also can understand why Deputy Chief Davis changed this finding to "Not Sustained with a debriefing," as it's mostly a they said/they said scenario.

The other allegation was about discrimination based on biased comments made about a "protected class." They responded to "a young man of color" who appeared to be having a mental health crisis. Two white firefighters were on the scene. The FTO thought the young man was talking about "demons" because so many white people were on scene. At a different time, the FTO said in front of the recruit that "all white people are racist." The offense taken by the recruit appears to be based on their understanding of the word "racist" to mean "evil" rather than based on people who hold power engaging in and/or acting on biases toward others. The narrative states the recruit was a white trainee and three Board members thought it was good to learn about discomfort people of color might have with white officers, voting to find the allegation Not Sustained, but recommending a debriefing. The other two Board members recommended a Sustained finding, finding that was a derogatory comment. Chief Davis agreed with the Not Sustained finding.

Interestingly, that second allegation was originally found "Sustained" but an Assistant Chief controverted the finding.*-4

The Board recommended that the Bureau's Equity and Inclusion manager and the Training Division review the case to improve training around open dialogues about race and class, in the context of the "current state of race relations in the United States." The recommendation was adopted.

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PPB ONLY FOCUSES ON OFFICERS IN TWO CASES INVOLVING THE COMMUNITY

As noted above, the cases PCW labels "B/C" involve interactions with community members. Beyond the foot pursuit case, here are the two others from this Report.

(B/C 1) The investigation into Use of Force should have directly involved the community member, and may have because the allegation listed about failure to file a report is called "Allegation 2." A deputy called for cover to arrest a suspect, and the involved PPB officer handcuffed the person against alleged resistance. The narrative implies that an officer from yet another police agency was upset that the Portland officer was not willing to use more force to subdue the suspect. However, the PPB officer claims they used force but their Sergeant said not to bother filing a report. The PRB seemed more concerned about the relationship with the other police agencies than the suspect in question.

The officer apparently had another misconduct complaint sustained for a different reason. The Board felt the officer was instructed incorrectly by the Sergeant. Four members suggested a Letter of Reprimand, while one felt the fact that the officer, who was new, was working with other jurisdictions, mitigating the issue, and should receive Command Counseling, a lower level of discipline. Chief Resch agreed with the majority and issued the Letter of Reprimand.

For some reason, the supervisor, IPR and Internal Affairs all agreed there was no misconduct, so it took an Assistant Chief to bring the case to the Board.

The Board made a recommendation to poll officers about "their attitudes regarding use of force" as part of an annual "Climate of the Bureau" survey; this recommendation was adopted.

(B/C 3) In this case, a reporter received a Police Report, including medical information about the person involved, before the Records Division processed their formal request. The officer under investigation had given a copy to the reporter in violation of the Dissemination of Information and Press/Media Relations Directives. Because the wait time for getting information is so long, the officer was "frustrated" and gave out the report. Four members of the Board noted that showing empathy for the reporter was a mitigating factor. One member felt the officer knew they were going against a Sergeant's orders not to release the information. They all agreed to suggest one day off without pay, to which Chief Resch agreed.

PCW notes here that the reporter would not have likely filed the complaint; however, the community member whose medical information was revealed should have been contacted and interviewed about the incident, and asked whether they agreed with the disciplinary decisions.

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THREE NEGLIGENT DISCHARGES LEAD TO TIME OFF

Here are the details on the three negligent discharge cases, so far as can be determined from the Report.

(B1) An officer was preparing for their shift, checking an AR-15 rifle out of the armory, when they accidentally set it off. Toward the end of the summary, it is revealed that the bullet did not put anyone in danger, though it seems that's irrelevant when an officer of the law is handling a firearm. The Board found the negligent discharge violated multiple policies, leading to an unsatisfactory performance finding. They also said the officer not putting in a yellow "safety block" after the gun was unloaded was a violation of the Weapons Administration policy, and that the officer didn't clean the gun as required (also a Satisfactory Performance issue).

While they found the multiple violations to be an aggravating factor in recommending discipline, they took into account that the officer lost their certification on the AR-15 (so, there is some justice going on at the PPB!) and four PRB members recommended the presumptive discipline of two days off without pay. One member, citing the "angle of the round fired," felt the danger was not serious and recommended just one day off. Despite this 4-1 vote, Chief Lovell went with the lower punishment without explanation.

The Board recommended to make sure the walls of the Bureau's armories are "in conformance with standards," which we assume means "impenetrable by high velocity rounds fired from a military- style rifle." The recommendation was adopted.

(B3) In this case, an officer was at the armory before their shift and negligently discharged a shotgun, leading to a Satisfactory Performance violation. Strangely, they also received a Weapons Administration violation for failing to empty the gun at the _end_ of their shift. The officer was offered and received one day off without pay, an agreement which had to be signed off on by Mayor Wheeler and Chief Lovell.

(B4) Presumably, a different officer also discharged a shotgun accidentally. We assume this happened prior to case B3 because the Internal Affairs number for this case is 2020-B-0014 while the other one is case 2020-B-0024. Again, Wheeler and Lovell agreed to the Stipulated Discipline.

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========

...PORTLAND COPWATCH HAS ASKED AND KEEPS ASKING TO IMPROVE REPORTS

As noted in many prior analyses, PCW has asked the 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 one of these 7 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 (noting no such cases are included here);

--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 is slightly improved by reporting they were "accepted"
but should also say if 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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CONCLUSION

Portland Copwatch appreciates the Bureau's commitment to publishing these Police Review Board Reports, but continues to wonder why their publication is kept quiet, like a family member the City doesn't want to invite to dinner. The cases are so heavily devoid of specifics that it is nearly impossible to tell who the officer(s) and, when applicable, the civilian(s) are. In cases where officers were fired, such as in the Truthfulness case in this Report, the names of the officers should be made public. City Code also allows for names of officers to be printed if they already appeared in the media, which the Bureau has yet to do.

There are other improvements that could be made to the PRB pipeline, including publishing a chart of the various stages of review that any case goes through. The IPR Director's reports list various stages for deadly force incidents including "Investigation," "Review Level," "Debriefing," and "IAD Closure." This organization has been around for 29 years now and studied employee investigations, but we have no idea outside of "Investigation" what any of these mean.

It does not seem reasonable to think that printing information such as in our Improvements section and this new suggestion would in any way compromise the integrity of the Bureau's operations. Rather, it is the behavior of the officers and the occasional lax attitude toward their misconduct which compromises the Bureau in the eyes of community members.

Thank you for your time,
dan handelman
--Portland Copwatch

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Footnotes

*1- Per the Independent Police Review Director's Report to the Citizen Review Committee, February 2, 2021. Notably, the March Director's Report indicates the two shootings from 2020 are still under review.

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*2- City Code 3.21.120 (B)(1) Complaint type I "involve[s] alleged misconduct of a member during an encounter involving a community member."

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*3- The cover sheet of the new Report switches the order of the third and fourth cases (B1 and B/C 3) though they appear in the correct order in the summary packet.

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*4- The cover sheet does not indicate how this case went to the Police Review Board. The summary says the Assistant Chief's act of controverting a Sustained finding led to the hearing under City Code 3.20.140(B)(1)(a). However, since there was already a proposed Sustained finding it's not clear if that was the only reason.

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Posted March 19, 2021, last updated July 6, 2021