ANALYSIS: 2018's First Police Review Board Report: Crimes, Misdemeanors and Outrageous Behavior
Table of contents
From: Portland Copwatch
To: Christopher Paille, Police Review Board Coordinator
cc: IPR Director Constantin Severe
September 21, 2018
Mr. Paille and Chief Outlaw:
Portland Copwatch has analyzed the September 2018 Police Review Board (PRB) Report which was released on September 11. In general we find the Report is full of crimes, misdemeanors and outrageous behavior-- on the part of some officers, the PRB and the Bureau. This is supposed to be a semi-annual report; the last one was released in November 2017. We asked about the new Report's existence on May 11 and were told it was with the City Attorney's office as of June 11. It is not clear why it took three months to publish this report, which can be found at https://www.portlandoregon.gov/police/article/697578> .
We found that it covers 24 cases which were heard between October 2016 and January 2018, though the incidents go back as far as 2010. Four officer-involved shootings were all found in policy (as usual), with scant attention paid to the "totality of the circumstances," the measuring stick used to determine whether officers followed their Directives and training. None of the scant shooting reports consider the ramifications to the community, which is all the more painful in the two-page summary of the death of Terrell Johnson, a mixed-race young man who allegedly had a knife (B/C 4), and the four-page whitewash of the death of Quanice Hayes, a young black man who was apparently not armed at the time he was shot in the head and chest by a police assault-style rifle (B/C 2). There doesn't seem to be concern about where stray bullets may have gone in the shooting death of Steven Liffel (B/C 1), or the incident where officers shot at Michael Grubbe multiple times in a residential neighborhood and damaged two homes and a boat (B/C 5). The main recommendation from that case was for officers to get better sights put on their shotguns.
There are also three cases involving officers who were arrested for DUIIs; while two were fired (C1 and B1), one was given two weeks off without pay (B2). We wonder how Mothers Against Drunk Driving feels about police officers, who are entrusted with the safety of the community, continuing to work after committing this offense. (DUII is a repeated theme in the PRB Reports.)
The Report also gives insight into the five high-ranking officers investigated in covering up former Chief O'Dea's off-duty shooting (B3), two of those officers-- Assistant Chief Kevin Modica and Captain Derek Rodrigues-- who failed to report possible discriminatory remarks by a Bureau employee (B4), the Lieutenant who signed former Chief Marshman's name on an attendance sheet for a training the Chief was not at (B6), officers using pepper spray and a Taser in highly questionable circumstances (C5, C10 and C7), a supervisor who grabbed a subordinate by the neck (B8), and a recruiting officer who gave away answers to the Bureau's employment tests in hopes of getting sexual favors from an applicant (C8).
As with our past analyses, we have broken down the Report into nine Bureau-initiated cases ("B") which do not involve misconduct against civilians, ten community-related ("C"), and five which we call "B/C" for Bureau/Community since they did involve civilians (the four shootings plus an officer who inserted himself into a case involving a family member, B/C 3). The numbers we use here refer to each kind of case in chronological order throughout the Report.
Aside from the two DUII cases, three other officers were fired-- the recruiting officer (C8), an officer who apparently was fired for retaliating by reporting another officer's alleged misconduct (B5), and a supervisor who said something so "shocking" that other officers turned him in (B7). That case is one of the only out-of-policy incidents of bias based policing in the last 20 years, and it doesn't even involve a civilian. A media report at the time suggests that Sgt. Gregg Lewis made a comment at roll call shortly after Quanice Hayes' death about using force against a black man (referred to as a "protected class" in the Report). Outrageous.
This is not to mention the case where an officer who had a civilian on a ride-along conducted a search of a car with no probable cause and bragged about it being a "dirty search" (C9). This case led the Board to recommend two weeks off without pay, but the officer resigned before being disciplined. Portland Copwatch (PCW) wonders how the officer was not fired for flagrantly violating the person's Fourth Amendment rights.
There is only one case in which words are sketched on top of blacked-out text: the off-duty officer who put on part of his uniform to insert himself into the case of a missing family member (B/C 3). The over-written words say "extended family member" and "business establishment." Though the first term stays vague, the rest of the case summary indicates the officer was at a strip club trying to find the missing person. The officer's taste for exotic dancers is reflected in a separate case (B9) in which an officer allowed a "scantily clad stripper" to pose on top of a police cruiser for a photo. The officer realized the action was wrong and asked the photographer not to post the picture, but that person did so anyway. Once it was published, the officer told his (presuming the gender here, since most genders are blacked out) supervisor. The PRB only recommended command counseling for that officer, but Chief Outlaw raised the discipline to a Letter of Reprimand, which still seems light considering the circumstances. (Though there were civilians involved in this case, we still labeled it a "B" case since the officer's misconduct had to do with misuse of the police vehicle and failing to notify the supervisor, not violating community members' rights.)
In another case, an officer used the criminal database to look up community members' records without cause, one time using another officer's log-in (C2). Most findings were sustained except one alleging the officer was not truthful talking to Internal Affairs. Chief Marshman changed that from "Not Sustained" (insufficient evidence) to "Sustained" but the Report says it was reversed again "at the conclusion of the disciplinary process." Does this mean arbitration occurred? Or that the Police Commissioner overturned the Chief? This is typical of the kinds of questions that arise from the Bureau being stingy with information.
More details on many of the cases (including six more we haven't summarized yet) are below. Other comments echo what we have said in the past: There are far too few details, far too many redactions, and not enough of an indication that there were detailed discussions about the most egregious cases. The Report is slightly improved in that the officer-involved shootings summaries now list the date and location of the incidents, so there can be no mistake what is being talked about. However, the PPB must realize that shootings in general (and particularly of persons of color) and deaths cause great concerns in the community that erode public trust in law enforcement. PCW has long advocated that the survivor of a shooting and/or survivors of those who have died should be allowed to address the PRB directly, since the officers involved are afforded that opportunity. Please change the rules or have the Supervisors in charge use their discretion to invite these civilians into the hearings.
The Bureau also shows a mixed record of raising and lowering the amount of discipline recommended by the PRB. In six cases, the final discipline was higher than what was recommended, five of those coming from Chief Marshman and one from Chief Outlaw. In five other cases, the discipline was lower than suggested, interestingly mostly done by Assistant Chiefs in their roles as Acting Chief.
In all, the Board considered 91 allegations and found 48 Sustained, 31 Exonerated/In Policy, 11 "Not Sustained," and one "Unfounded." As PCW has noted before, the high 53% Sustain rate is because most incidents are referred to the Board only when someone recommends that finding in the first place.
Two last general comments:
--The Bureau has been more consistent in explaining how cases have come before the board, whether recommended by the officer's supervisor (RU Manager) or because Internal Affairs (IA), the "Independent" Police Review (IPR) or an Assistant Chief "controverted" the RU Manager's proposed finding. PCW thanks the Bureau for this clarity.
--In a few cases, there are fewer votes registered than the number of PRB members who are-- or are supposed to be-- at the hearings. The Reports should indicate why only six of seven members voted on the Johnson and Grubbe shootings (the other two only list the votes as "unanimous"), and why only four of five members voted on most findings in the Modica/Rodrigues case. In the database- lookup case, one member was allowed to abstain because they "realized" they had a conflict of interest-- how could that not have come up before the hearing?
As noted above, four officers were fired following PRB hearings. Here are some details and comments on those cases.
(C1) Officer Daniel Chastain drove his unmarked police car at high speed, crashing his car into civilian's, causing injury, flipping over the police car, and getting arrested with a .256 blood alcohol content (BAC). (Except for his name, all these details are actually in the PRB report, which is appreciated). The PRB members were alarmed at the "graphic" nature of the crash site and recommended termination despite Chastain's previous "exemplary" service. One odd detail, not that it matters since the community is spared Officer Chastain's future drunken escapades, but the Board voted 4-1 to say it was "Unfounded" (facts do not support the allegation) that there was an open container found on the scene. The container in question could not positively be connected to Chastain, and the one dissenter was correct in saying the finding should have been "Not Sustained."
(B1) An unnamed officer (it's not clear why, since most officers arrested for DUIIs have led to PPB news releases in recent years) crashed his take-home car while carrying weapons and DNA which were evidence in an investigation. The officer was called to assist at an incident on the same day, but the other officer did not notice the investigated cop was intoxicated, leading to a "Not Sustained" finding of showing up drunk to work. The PRB only recommended two-day (two members) and one week (three members) suspensions, but Chief Marshman fired the officer, which seems appropriate given the multiple ways in which this story shocks the conscience. Oddly, this case happened on April 24, 2016-- the day before Chastain's crash.
(C8) It is not clear why the actions the recruiting officer took in 2010-2011 were only investigated in 2016 and processed in 2017. He (again, presuming the gender here) gave the answers to the entry exam, apparently in an email which the complainant was able to submit as evidence. He also left evidence of suggesting they stay in a hotel room together in Los Angeles. The Board found there was not enough evidence to show he did the same thing in Phoenix, only because there seemed to be confusion about the exact city where the second request took place. One PRB member correctly said that just because the detail was wrong doesn't mean the officer was in policy, and led Chief Uehara to agree and Sustain that allegation. To their credit, the PRB called for a debriefing on the implied request for sexual favors-- this was one thing that wasn't explicit in the emails-- pointing out the "power imbalance" between him and the potential recruit. Needless to say this whole case (and others addressed in this analysis) make PCW repeat our request that the PPB engage in gender parity training alongside the training on implicit bias.
(B5) If not for a few facts, PCW would have considered this an example of the Bureau going after a whistle-blower. We're going to refer to the officer who got fired as Officer A and the one "A" accused of wrongdoing as Officer B. Officer A said that, two years before filing the complaint, Officer B had inappropriately helped get another officer, who was on leave of absence, recertified to use the criminal database. The PPB apparently investigated that allegation and discovered it was "Unfounded." Thus they were able to convince the Police Review Board that Officer A had filed the complaint in retaliation against Officer B. This fact, the incident being Officer A's second violation within seven years, and that the cop did not take responsibility for filing the false complaint, makes it seem we are better off without Officer A.
(B7) There are several phrases redacted in the Report about Sgt. Lewis disparaging a "protected class." Lewis was fired, and the behavior was called out as inappropriate. There were two findings of violations of the Bias-Based Policing Directive-- one for being a supervisor not upholding Bureau values and one for suggesting enforcement against a protected class. There was also a Conduct violation for bringing reproach on the PPB. As the PRB noted, Lewis' own officers reported the behavior, so it seems the exact nature of the offense should be shared with the public. The media report says Lewis made the remarks on February 12, 2017-- just three days after Hayes was killed. It can be a lesson to other cops to let them know what kinds of statements are unacceptable, and to the community to know what is not tolerated. Side note 1: it is unclear why the cover memo says that both Acting Chief Chris Davis and Chief Outlaw approved the PRB's recommendations. Side note 2: Sgt. Lewis was a "double dipper" who retired from the Bureau in October 2016, then was rehired under a program negotiation by the Police Association- just a few months before this incident.
(C9) In addition to Officer "C" who conducted and bragged about the "dirty search" (and admitted it to investigators), Officer "D" who was on the scene did not report on the search. Because policy says Officer D is not required to document Officer C's search, the finding given was "Not Sustained with a debrief," with four of five PRB members saying that officer should know to write up such an important action regardless of whether it is required. The fifth thought the officer should have been found out of policy-- this is likely the representative from the Independent Police Review, which "controverted" the original finding, bringing Officer D before the Board. Inexplicably, Chief Uehara agreed with the Not Sustained finding but not to debrief Officer D. As for Officer C, in addition to being dumb enough to violate a person's rights with a ride-along present, he/she also failed to write a report about it or even write it down in their notebook. The PRB's light recommendation for two weeks off was because the officer had no previous discipline. PCW is glad the officer voluntarily resigned.
The Bureau releases full investigative and Grand Jury reports on shootings ending in death (and, in one case in 2017, when the suspect lived). Newspapers, the IPR, consulting agency the OIR Group and other sources regularly report on the names of the suspects and officers involved. The PRB ordinance allows names to be used when the names have already been released publicly. Yet the PRB reports on these most serious cases remain heavily redacted. Here are a few more details on the four officer involved shootings noted above.
(B/C 1) Steven Liffel was shot and killed on December 6, 2016. The PRB summary states that he came out of his house with a rifle in "port arms position," a militaristic term which clearly relies on police testimony rather than a neutral tone. For those not trained in military terminology, it means the barrel was pointed upward by Liffel's shoulder, not pointing at the officers. The supposedly neutral report then states that Liffel ignored commands and walked toward police, which are called "aggressive and agitated" actions. Then one officer (identified elsewhere as Lawrence Keller) took it upon himself to shoot, believing there was "an immediate threat of death." After firing one round, the Report states that Keller "immediately de-escalated use of force." PCW has repeatedly criticized the Bureau for using the term "de-escalate" to mean lowering the amount of force used. Had Keller de-escalated the situation, perhaps Mr. Liffel would still be alive. Other officers decided not to approach Liffel because the gun was still nearby, waiting for the SERT team to arrive before realizing Liffel was dead. The PRB recommended that when shots are fired, medical assistance should be called earlier, which could help save lives.
(B/C 2) Without knowing the full context of Quanice Hayes' tragic death on February 9, 2017, a person reading the Report would be confused. The narrative begins by saying that Officer Andrew Hearst (not named here) had received information on the police radio and being on the scene making it reasonable for him to believe that Hayes reached into his waistband for a weapon. The fact that the officers ordered Hayes to crawl toward them on his knees, which likely meant he was pulling down his own pants with every move and perhaps was trying to pull them back up, is not considered. The PRB affirms Hearst's perception that the young African American man posed an "immediate threat of death," which was good enough to support his state-sanctioned murder. Reviewing the supervisors' role, the Report says the plan was to resolve the incident with "as little force and disruption as possible." It is not clear what "disruption" was avoided, but lethal force is certainly not "as little force as possible." Even though former acts of officers play into decisions about other examined behaviors, there is no mention that the PRB considered Hearst's previous questionable shooting of Merle Hatch in early 2013. This is just another way in which the system is set up to push shootings through with no critical review. The only slight critique came in the incident commander's review, saying since he was in charge he should not have taken part in the custody team (transcripts imply this is Sgt. Kyle Nice, who was involved in the death of James Chasse in 2006). The Board asked Chief Marshman to debrief the officer.
In the recommendations section, the cover letter apparently switches the PPB's response to two suggestions from the Board. The PRB asked that the investigation materials be made available to the public as soon as possible, which the Report says was sent to the Training Division for review. Likely, that was the outcome of the other suggestion, which was to use this case for a training scenario. Unfortunately, the Auditor's report on training indicates that the Bureau doesn't want to use their own incidents for training purposes for fear of "embarrassing" the officers involved.
(B/C 4) The review of Terrell Johnson's death on May 10, 2017 is the only one that doesn't cover an extensive number of officers tasked with post-shooting duties. It is not clear if that is because Officer Samson Ajir (again identified elsewhere), who shot Johnson, was part of the Transit Police team. Even though a PPB Captain is in charge of the Transit police, the officers come from all over the Metro area. If supervisors from other agencies handled the post-shooting tasks, the Report should make that clear. The very brief narrative only says that Ajir had a "lawful reason" to pursue Johnson-- ignoring training and expert recommendations that say foot pursuits often lead to violent confrontations-- and that Ajir thought his own life was "in peril." They reference how multiple bullet wounds indicated Johnson was still upright and advancing when he was killed. However, there was not the opposite consideration given in the death of Kelly Swoboda in 2014, where the officer shot the suspect through his feet after he fell to the ground. The Board also did not seem to consider whether it was odd that Ajir was assigned to patrol TriMet with his brother, who is an officer with another agency. They made no recommendations and their most salient comment was that medical help arrived within three minutes of the shots being fired.
(B/C 5) When officers fired their weapons at Michael Grubbe on May 28, 2017, they were responding to a call about a suspicious man with a gun. After Grubbe allegedly pointed his gun at the officers, officer #3 (it is not clear if this is Matt Jacobsen, Matt Brown or Sara Fox) shot 3-4 rounds at Grubbe and missed. In a second confrontation, the same officer fired two more rounds. Lawsuits filed against the City for property damage that reached City Council in 2018 indicate that the boat hit by the bullets was deemed a loss by the insurance company, and the two homes had to undergo extensive repairs. Each buckshot round carries at least 9 pellets. The other two officers also fired their weapons, with #2 saying Grubbe came out from behind the boat, and #3 firing at Grubbe's "exposed arm beneath the boat," which seems to be contradictory. #3 also said they were responding to the sound of shots fired; it is not clear that Grubbe ever fired his weapon, thus this may have been a case of "contagious fire" where officers start using deadly force because other officers' guns go off. But the Board did not raise this question, instead unanimously supporting the actions of all officer involved. The exception is that officer #6, a supervisor, was critiqued by two PRB members for not getting close enough to the scene to receive a briefing, echoing concerns from the Training Division. Four other members are shown not wanting a debrief. Unanimous votes are recorded as 6-0 votes, though there are supposed to be seven members of PRBs in shooting cases.
As noted above, case B/C 3 involved an officer who put on a partial uniform and arrived at a call involving his own missing family member. While many fictional portrayals of law enforcement show cops taking on cases that touch them personally, it is bad investigative practice and, as noted by the PRB, against PPB's policy 311.30 governing off-duty conduct. PCW has urged the Bureau to look at this Directive in previous incidents and appreciates its application here. The action was also found to violate Directive 310.00 on Conduct because it was "improper" to contact the strip club (seen as ***blank*** business in this part of the summary) to find an employee. Such actions revolving around a personal issue can lead to a "distrust to the lawful exercise of police powers." In all, the officer had five "Sustained" findings-- a second one around 311.30 for not notifying the supervisor they were attending to police business while off duty, regarding 315.20 for responding while off duty, and for 1110.00 for the partial uniform. The officer was given one week off without pay.
PCW wonders why the Bureau did not classify this as a "C" case, since the officer's interaction with civilians is what led to several of the violations.
In addition to three "C" cases that resulted in officers being fired, these seven other cases involving civilians went to the PRB; only one ended with no Sustained findings.
(C2) This is the incident in which the officer used the Bureau's computerized database to check people's criminal records without cause. The dates are very specific to these four violations, beginning on April 13, 2014, another on September 7, 2014, and two civilians being compromised on December 25, 2015. The summary notes that the database is only to be used for criminal justice purposes. A new policy went into place between 2014 and 2015, but that did not stop the officer from taking the action again. The officer told the Board they did not intentionally use their partner's log-in to check the database in the 2015 incident. Two members of the board recommended firing the officer due to their complaint history. Two others suggested three weeks off without pay. Chief Marshman, after Sustaining the allegation of untruthfulness to IA but having that overturned, gave the officer three weeks off with a last chance notice. Incidentally, Internal Affairs, which conducted the interview in which the officer was accused of being untruthful, thought that allegation should have been Sustained. Unlike the officer's supervisor, the Assistant Chief, and IPR, all of whom also get a chance to weigh in before the PRB votes, IA does not have a say on the Board, where three votes were for "Not Sustained" and only one was to "Sustain."
(C3) In this incident, a community member came into a precinct to dispose of medications and the desk clerk suggested that since the PPB doesn't accept medications they should throw them out. When the civilian objected, the officer told the community member that _they_ were being rude and could be removed from the building. Since the person was physically in the building, it is not clear what the summary report means when it says the officer hung up their headset while the civilian was still talking, but that helped lead to the Sustained finding on a Courtesy violation. This was a 4-1 vote because one member thought the officer gave the person other options of what to do. The threat to remove the person from the building was apparently coupled with a specific threat to arrest them for trespassing if they did not leave, leading to another 4-1 vote for a Conduct violation since there was no valid reason to arrest the person. The final allegation, that the officer violated the Satisfactory Performance Directive, was "Not Sustained" by a vote of 4-1. It is likely that the lone vote to Sustain came from the IPR, which had controverted that finding before it got to the Board. This was the officer's second violation in two years, with similar behavior that led to Non- Disciplinary Complaints in the past. The board suggested two days off without pay; Chief Marshman Sustained the Satisfactory Performance allegation and gave the officer a full week off instead.
(C4) An officer showed up to a domestic dispute situation where a father slapped his adult daughter and fled. The daughter and her boyfriend (identified by gender through these descriptions but with gender pronouns redacted anyway) were both injured but did not want to prosecute. The officer made "inappropriate political comments," failed to provide the proper forms to the reported victims, did not photograph the injuries, and in general showed a "lack of empathy." Thus the PRB voted 5- 0 to find the officer violated both the Directive on Domestic Violence investigations (825.00) and Satisfactory Performance. They recommended one day off without pay based on witness accounts and something else that was redacted heavily. Chief Marshman (who himself was accused of harming a family member at one point) actually increased the discipline to two days off, no explanation was given in the Report.
(C5) This is the case in which an officer was found out of policy for using a Taser. They had responded to a call about shoplifting at a department store, and spotted the male (not redacted!) suspect contacting a female on SW 11th and Morrison. The suspect supposedly had used a knife to cut the tags off the stolen items. When the officer got out of their car, the suspect ran and the officer fired the Taser, causing the suspect to fall forward. They then ran away. The officer was found out of policy for precipitating the use of force by not making a plan or waiting for cover, escalating the confrontation, and using the Taser on a fleeing suspect on a minor criminal case. The officer also inaccurately reported what happened and did not file a full report, leading to a fourth Sustained finding for violating Directive 910.00 on officer handbooks. Confusingly, the Board also found that the officer did not violate the Truthfulness Directive even though the notebook entry "significantly" differed from video evidence. They recommended two days off without pay because the officer did not have a history of discipline, Acting Chief Davis agreed.
The Board also suggested doing a study of how often officers come before the PRB, but since it was not a formal recommendation, the Bureau did not do anything with the very reasonable idea.
(C6) While working an overtime shift as security for an un-named store, an officer engaged in an inappropriate relationship with another employee. A second officer turned them in. The Board found "clear evidence" of the relationship and talked about how this violates the trust in the officer's role in the community, but suggesting only one day off without pay (though one PRB member thought it only required a Letter of Reprimand).
(C7) This is the case in which an officer's questionable use of Pepper Spray led to the complaint. During a protest about police brutality on September 23, 2016 (with the date and name of the event spelled out in the Report), a male protestor (according to media reports) complained about inappropriate use of pepper spray, as well as Courtesy and other violations. The PRB only reviewed the use of pepper spray, coming up with a very split decision. Two members wanted to sustain the finding because the person was not engaging in physical resistance; two wanted to exonerate the officer because they believed the person showed the "intent" to do so; one wanted to find "Not Sustained" because of conflicting testimony. The two seeking a Sustained finding suggested one day off without pay. Assistant Chief Wagenknecht agreed to Sustain the allegation, then lowered the discipline to Command Counseling through a process of mitigation (where the officer throws themselves on the mercy of the Chief).
An Assistant Chief (it is not clear if it was also Wagenknecht) had controverted the original proposed finding on the use of force (the spray), triggering the Review Board hearing. For some reason the Board was not given the other four allegations that had been found Not Sustained, Exonerated and Unfounded to review. It seems if the PRB is supposed to be a backstop to ensure findings appropriately match the evidence, they should always be given the entire case to review. PCW made this same comment when none of the violence doled out on teenager Thai Gurule went before the Board a few years ago.
(C10) This was the only case in which the PRB did not find any Sustained allegations, and it also involved the use of Pepper Spray. A suspect who was in a car was not complying with police orders, which arguably could be called "passive resistance." Officer E ordered Officer F to spray the man (identified in the Report by gender) as a "distraction" to get him out of the car. The summary says that Officer E had reason to believe the man was actively resisting because he was moving around in the car and "could be armed." Officer F assumed he _was_ armed and used the spray, according to the Report, to "de-escalate." On its face, this is another outrageous statement-- in what way does putting concentrated hot pepper oil into someone's eyes in an enclosed space de- escalate a situation? Further, the suggestion that the force was used as a "distraction" goes against what PCW understands PPB training to be-- years ago the Bureau said they do not teach "distraction techniques" any more. So, even though the Assistant Chief had sent this case to the Board believing it was a violation, the vote was 5-0 to find the officers in policy ("Exonerated"), but they suggested a debriefing so both would better document the reason for their use of force in the future. Chief Outlaw agreed.
In all, nine Bureau-only cases led to nineteen Sustained findings, four Exonerated findings, and three "Not Sustained" findings. Aside from the three cases that led to terminations, here is what happened.
(B2) This is the case of a DUII where the officer-- a supervisor-- only got two weeks off without pay. The officer had a police car from his/her assigned division so as to be ready to take calls when needed, and was arrested with a 0.11 BAC level. Alcohol is not allowed in city vehicles, so in addition to a violation for the DUII (315.00 Laws, Rules and Orders) the officer was dinged for violating the alcohol policy (316.00). There were also two violations of the vehicle use policy (1245.00) for impaired driving and personal use of the take-home vehicle. Three PRB members recommended only one week off because he/she took responsibility and had a good record, but Chief Marshman agreed with the two members who suggested two weeks off since this was a supervisor.
The Board made a recommendation to clarify whether officers might carry alcohol if they need to run personal errands using the police vehicle while on call. One PRB member said the Bureau should just trust police, which in the context of this DUII is rather disturbing.
(B3) This is the case involving the four Assistant Chiefs (Modica, Mike Crebs, Donna Henderson and Bob Day) and the Captain of Internal Affairs (Rodrigues) alleging they covered up Chief O'Dea's off-duty shooting by not initiating an Internal Affairs investigation or notifying IPR. The findings of this investigation were made public by IPR and the case was very high profile as it resulted in the complete turnover of upper management at the Bureau, yet no names were used in the PRB Report. The case summary does mention the Harney County Sheriff's Office criminal investigation (in some other summaries, agency names are redacted), While the findings for three of the Assistant Chiefs are pretty much identical, saying that they believed someone else was reporting the potential misconduct, one A/C who was in charge of a redacted branch was singled out-- by being Exonerated. Presumably this was Henderson, who was in charge of the Investigations unit. Since the duty to investigate technically was in her purview, there were four votes finding her in policy, where the other three A/Cs each had two votes to Exonerate and two for Unfounded. It is not clear why there are only four recorded votes for these four allegations, while the allegation that Rodrigues failed to open an investigation was Sustained on a 5-0 vote. Chief Marshman, who took over after Henderson temporarily filled in for O'Dea, found three A/Cs did not do what was alleged (Unfounded) and one was Exonerated; the cover letter may be mixing up which cop was which. Though the board recommended just one day off for Rodrigues, Marshman imposed two days.
Side note 1: IPR thought the findings against the A/Cs should have been "Not Sustained" since there wasn't enough evidence to prove or disprove them, but did not formally controvert the proposed findings. Side note 2: For some reason, the allegations reviewed in this case are numbered 7, 11 and 12; it is not clear whether the other (at minimum) nine allegations were about Chief O'Dea, were not proposed to be Sustained, or were handled in a different process.
(B4) This is the case in which a female Asian American non-sworn employee complained about diversity manager Elle Weatheroy, and A/C Modica and Captain Rodrigues were accused of not following up properly. It should be noted that Weatheroy and Modica are African American and Rodrigues is Latino, and the media reports covering this issue included national organizations of officers of color complaining about how many of Portland's leadership of color were on paid leave. The Report indicates that Rodrigues was informed about the employee's complaint over a casual lunch, but he was found out of policy 5-0 for not following up. Modica was accused of not reporting the complaint after a face to face meeting (3 votes to Sustain, one for Not Sustained) and retaliating against/intimidating the non-sworn employee by talking to her about the complaint despite a gag order (Sustained, 4-0). It again is not clear why the number of people voting varies from four to five in this case.
There were four different recommendations for Modica's discipline, one of which was demotion (though he had already been demoted to Captain ten months before PRB hearing in B3 took place) one for two weeks off, one for two days off, and one for a Letter of Reprimand. Ultimately Chief Marshman agreed to give Modica three days off without pay... but (the media reported) he cut a deal to retire with his rank of Assistant Chief before the discipline was imposed. For Rodrigues, four members recommended one week suspension, and one a Letter of Reprimand. Marshman imposed two days without pay.
The Board made a recommendation in this case to consider how the Bureau's efforts to have "courageous conversations" about race might lead to hurt feelings which could be resolved without complaints being filed; the idea was sent to Professional Standards.
(B6) This is the case that was widely reported on in the news where Lieutenant Mike Leasure was accused of signing Chief Marshman in to a training on the Employee Information System when Marshman was not there. (The media gave the dates of March 8 and 9, 2017 for the training.) Leasure, who is African American, was also mentioned by the national groups for being singled out for investigation. Though one person thought Leasure gave ambiguous answers to Internal Affairs, the finding on whether he was untruthful was "Not Sustained" on a 5-0 vote. However, his conduct for signing the roster was found out of policy on a 5-0 vote, with a recommended day off without pay. One aggravating factor mentioned was how it looked to the public when the story came out, which is an important part of all of these cases (even though not all of them were publicly reported). Assistant Chief Davis, who was acting Chief during the time when this was being investigated because Marshman was also on leave, said there was no intent to deceive and gave Leasure Command Counseling.
(B8) The Supervisor grabbed the subordinate by the neck because they wanted them to change their uniform. Because other officers witnessed the attack and the Supervisor admitted pressing on the officer's neck and jaw, there was a 5-0 finding that this violated the Conduct Directive; it's not clear why it wasn't considered inappropriate Use of Force. The Supervisor also admitted to using "colorful language" to try to get the officer to comply, which was found to be intimidating (also a Conduct violation) by a 4-1 vote. (The "no" vote felt it wasn't necessarily intimidating and thought the finding should be "Not Sustained.") The Supervisor had a good work history and admitted the "mistake," so four PRB members recommended a Letter of Reprimand. The fifth suggested one day off without pay. This officer was also able to use mitigation to get A/C Wagenknecht to lower the discipline to Command Counseling.
(B9) The officer who allowed a stripper to pose on his car and then tried to halt the photo's publication was found out of policy for Conduct (letting the photo happen) and Satisfactory Performance (for failing to tell their supervisor until after the photo was published). The votes were both 4-1, with each vote having one member think the finding should have been "Not Sustained." That person said that the officer tried to mitigate "exposure" by informing the photographer not to share it; perhaps when talking about scantily clad persons this is not the best word to use. Since the officer clearly was worried about the impact at the time the photo was taken, the improper conduct led the Board to recommend Command Counseling, which all five members supported. This indicates that the "Not Sustained" votes were made by different people, or else they would not have voted on discipline; the lack of clarity on who voted how is an ongoing problem with the Reports. Chief Outlaw bumped the discipline up to a Letter of Reprimand even though the officer expressed regrets to the PRB.
As noted above, out of 24 cases, various Chiefs imposed different discipline than what was recommended eleven times. The five cases where Chief Marshman imposed higher discipline were: Termination over 2-7 days off (B1), adding a last chance to a three week suspension (C2, though technically this was a lower discipline than the recommended termination), two days off becoming a week off (C3), and one day off becoming two days off (C4 and B3). Chief Outlaw's one bump up was Command Counseling becoming a Letter of Reprimand in case B9.
The lower discipline looked like this: Chief Marshman dropped higher recommendations (including one to two weeks off ) down to three and two days off in case B4, A/C Davis dropped a day off to Command Counseling (B6), A/C Wagenknecht lowered two cases to Command Counseling through mitigation (C7 and B8) from one day off and a Letter of Reprimand, respectively, and Interim Chief Uehara declined to debrief the officer who didn't report the search in case C9.
Uehara was Chief in between Marshman and Outlaw; it is not clear at what point Assistant Chief Wagenknecht was in the position to consider discipline.
As we've written in the past, the PRB's Reports could benefit from consistently including:
--the date of the incident in question
--as noted above, the number of voting members and number of votes
--which opinions were from officers, civilians,
--the gender of all persons involved;
--the names of officers, particularly in cases which have already
--more thorough background summaries for all cases,
As in the past few years, all of the dates the Review Boards were held were listed in the Report, though one was not included in the summary (C9), the date was given in the PPB's cover memo.
For a City and Bureau which pride themselves on "transparency," these reports leave a lot to be desired. We have noted before that officers are making life and death decisions which traumatize, harm or kill community members. PCW continues to believe that holding hearings in public, or at the very least allowing the involved civilians and the media to attend, would go a long way to building the also much-talked-about community trust.
It still appears that there are not enough questions being asked by the Police Review Board, particularly in shootings cases but also in cases where the lack of inquiry is due to some of the allegations not being presented for review. We also continue to suggest that a list of the names of the civilian pool members, which are already public when City Council appoints them, should be attached to the reports, and that those civilians should hold annual or semi-annual meetings with the public, and be asked to help the Citizen Review Committee hearing appeals and conducting policy reviews.
We have suggested in the past that the cover sheet should explain the function of the PRB and refer to the Ordinance that guides the publication of the Report. More of concern is that the ordinance requires these to be put out twice a year and the first 2018 report is being released mid-way through the ninth month.
back to top
Posted September 21, 2018