ANALYSIS: Police Review Board Report 12/19: More Disturbing Behavior, More Unusual Discipline Choices
Table of contents
From: Portland Copwatch
To: Christopher Paille, Police Review Board Coordinator
cc: IPR Director Ross Caldwell
December 31, 2019
With little fanfare, the Portland Police released their second (and final) required set of Police Review Board (PRB)summaries on or about December 23rd.*-1 Portland Copwatch (PCW) has analyzed the Police Review Board Report ("Report" and once again found troubling behavior by officers, unusual discipline decisions by the former Chief, and extremely lenient oversight by Board members, especially in deadly force incidents. The one good piece of news: This is the first PRB Report, perhaps ever, that did not include an officer involved in a case of Driving Under the Influence. However, there are incidents of racial bias, a Detective demoted (rather than fired) for two cases involving misuse of vehicles, and six cases involving deadly force including one supposedly banned choke hold and a fatal crash during a chase not treated as a death in custody. In a rare turn of events, the Board recommended firing officer Alfonso Valadez in the car crash case, though it was for lying, not deadly force, and he resigned before being terminated. Though the former Chief made several findings lessening the severity of the Board's recommendations, she significantly found an officer used force improperly when he "accidentally" fired a Taser at a fleeing suspect. The Report is posted at https://www.portlandoregon.gov/police/article/749217 . We are sending this analysis to new Chief Resch in part to push for more transparency in explaining the Bureau's choices around discipline.
The time frame for addressing misconduct and releasing these reports is somewhat improved-- these cases date back to sometime in early 2017 with hearings that took place between May 2018 and September 2019. Overall there are 16 disciplinary outcomes mentioned in the cover memo, though there are only 15 separate cases involved, and two appear to involve Detective Norvell Hollins III driving Bureau vehicles for personal use. The summaries continue to redact such important information as the locations, dates, and (still silly after all these years) gender pronouns identifying people involved. Nonetheless, PCW is able to identify officers in nine of the 15 cases.
Another continued troubling trend is labelling cases which clearly involved community members as "B" (Bureau-only) cases. This was done in the cases involving the shootings of Jason Hansen and Ryan Beisley (both of whom were wounded), Samuel Rice and Andre Gladen (both of whom were killed), the death by car crash of Christopher Cannard, the chokehold applied to Jonathan Harris (who lived), another car chase in which the suspect and the officer drove over an uninvolved person's property, and the infamous texting scandal involving Lt. Jeff Niiya and various protestors. PCW uses the same labels for "B" cases and the Bureau's "C" label when a community member's concerns trigger the investigation, but uses "B/C" for cases like these eight (making up more than half the Report this time). Our labels for the cases listed here are B/C 3, 5, 6, 8, 4, 2, 1 and 7 in the order listed.
Once again members of the Board seem to be deferential to officers involved in deadly force cases rather than, as urged by the OIR Group in its February 2019 report, looking at issues aside from the application of force for policy violations. The two exceptions are that Officer Larry Wingfield and four other officers apparently engaged in a fight with Mr. Harris before the choke hold (no violations) and the Taser use upon (no violation) and moving of the knife supposedly handled by Mr. Gladen (a "debrief" recommended) by Officer Consider Vosu. Once again there is no discussion about the PPB's seven-year-long odyssey supposedly learning to handle situations with people in mental health crisis, even though it is pretty clear that at least Mr. Rice and Mr. Gladen had mental health issues. The one time it is obvious that a supervisor became involved in a deadly force incident rather than supervising-- in the Beisley case-- the officer is praised for jumping in, rather than questions being asked. The unquestioning support for shooter cops goes so far that the Board's comment about the injury sustained by Officer Kameron Fender, who shot Mr. Hansen in an apparent exchange of gunfire, obscures the fact that Fender was bitten by a Clackamas County police dog, not hit by a bullet. Unsurprisingly, it is not mentioned that Officer Fender also shot John Elifritz just six months before this other incident.
In the last Report, PCW found that Chief Outlaw had undercut the firing of Sgt. Erin Smith, who had been found guilty of violating the "Truthfulness" Directive (policy), by changing the allegation to lower the discipline. This time, the PRB recommended terminating the employment of Detective Hollins for the two misuse of vehicle cases B3 and B6), including lying in the second case. The former Chief changed the finding on this allegation to "Not Sustained" (not enough evidence) and then demoted Hollins. The Oregonian's report about Hollins (Sept. 17, 2019) says that he had retired from the Bureau and was rehired for a two year stint ending in September anyway. In another case including an allegation of lying (which was not Sustained), the officer was found out of policy for drawing another cop's face and name on a target before firing at it in the practice range (B2). Four members of the Board recommended two days off without pay, but the former Chief lowered that to just one day off (recommended by just one Board member). PCW repeats here that the type of voting members should be included so it is clear whether the officers' supervisors (who are getting a "second bite at the apple" by voting on the Board after making initial findings), peer officers, an Assistant Chief, an Independent Police Review staff person or a community member is being too lenient in single cases or as a general pattern.
Similar to the case of Sgt. Gregg Lewis, who was fired but reinstated with just a three-week suspension (then retired), a supervisor who made remarks about a subordinate of color not receiving as harsh punishment because of their race (B7) was only given two weeks off without pay. That supervisor retired before the punishment was leveled.
Overall there were six cases with no discipline (the five deadly force cases other than Valadez/Cannard-B/C2 and the Niiya text scandal-B/C7), two officers suggested to be fired (Valadez, who resigned, and Hollins, who was demoted), the two week suspension not imposed, a one week suspension for failing to report workplace discrimination regarding a sexually explicit remark (B5- the officer resigned before discipline) a one day suspension for the other officer in that same incident (B4) and another cop who discriminated against a colleague (B2), and two letters of reprimand in the second car chase case (B/C1) and the only case treated as civilian involved, where the officer fired a Taser at a fleeing suspect (C1).
This is the first Report in a while where no officers were actually fired; at least one officer got their pink slip handed to them in the December 2018 and September 2019 Reports.
Sometimes in conjunction with changes to discipline and sometimes not, the former Chief made changes to six findings suggested by the Board this time, lowering five (two "Sustained" to "Not Sustained" and three non-sustained findings to "Unfounded" in the Niiya case), while increasing the one force finding in the Taser case to "Sustained."
The PRB's "Sustain" rate was just 26% this time, lower than the 32% in the last Report, but that is mostly because there were, for example, fourteen officers involved in the Beisley case, with four who fired their guns. In total, there were 20 proposed Sustained findings out of 78 allegations (with a final tally of 19 Sustained because of the two the former Chief mitigated and the one she increased). There were a whopping 51 allegations found "Exonerated" or "In Policy"-- all in B/C cases, and seven "Not Sustained." However, three of those 58 were changed to "Unfounded" by the former Chief. There were only five Debriefings recommended, including the one for Vosu, three for a cop who made inappropriate comments to another officer and possibly about others' sexual orientation (B1) and one in the cop-driving-over-the-lawn case (B/C1); the Not Sustained finding by the former Chief also included a debrief in this case.
Since it's been added to the Reports, information on how cases get to the Board shows they are predominantly referred by a supervisor-- seven cases this time, including the fatal car crash. The Niiya case went to the Board only because an Assistant Chief controverted the original "Not Sustained" findings and said they were "Exonerated." The Board agreed on two, but as noted, the former Chief ultimately changed them all to "Unfounded"-- which is unfortunate as Niiya's guilt is a matter of subjective interpretation. In a rare move, he Chief's office pushed the Taser case to the Board and agreed with their own proposed Sustained finding about the use of force (C1). The last two cases were referred because of probable Human Resources discrimination violations-- the two inappropriate comments cases (B1 and B7).
There appear to be no cases where fewer than the full quorum of Board members voted (unlike in the September Report), though there are five cases where votes are simply listed as "unanimous" without identifying if there were the full five members for "regular" cases (B6) or seven for deadly force cases (B/C3, B/C4, B/C5 and B/C6). We hope the facilitators will be given a template so there is more consistency in the reporting.
As with one case in the previous report, there was an incident where a Board member left "unexpectedly" and thus the Board's recommendations could not be voted on-- this time in the Beisley case (B/C5); last time it was the death in custody of Richard Barry. Overall the Board made fourteen recommendations, three of which were progressive. They twice suggested suspects' criminal histories should not be part of the PRB presentation unless the officers knew it at the time of the incident (B/C4 and B/C6), and said the PPB should report Officer Valadez to the state Department of Public Safety Standards and Training (DPSST) for decertification (B/C2). Others were more technical (four were about better internal communication) or even somewhat regressive-- asking for the ability to give officers less than one day off without pay for violating discrimination rules (B1). For some reason, this year Reports stopped relating what happened with the recommendations.
PCW continues to believe that the Reports should include the officers' names when they have already been made public. That said, the trend of including the date and location of deadly force incidents has continued which at least takes away some of the guesswork from previous Reports. There also need to be more details given, such as the police dog who bit Officer Fender, and fewer redactions, if the Bureau is meaning to live up to its promise to be transparent with the community.
As always, PCW will add the comment that the Bureau and City Council should to open up the process around the PRB in any or all of the following ways:
--allow the community member who was harmed (or their survivors) to testify to the Board.
--allow the media to attend the hearings.
--allow the public to attend the hearings.
--have the pool of PRB volunteers hold public meetings every time a PRB report comes out so they can discuss the process with the community and hear about concerns. They are "representing" the rest of Portland at these meetings but are never seen in public.
We add a new recommendation based on our discussion with former Chief Outlaw on December 12:
--Make the PRB reports quarterly so the information is getting to the public in a more timely way.
It is an often repeated fact that even when officers are held accountable for their use of deadly force, their discipline is almost always overturned in arbitration.*-2 None of the officers in cases considered by the Police Review Board because of deadly force resulted in discipline more harsh than the debriefing to Officer Vosu (detailed below). However, Officer Valadez, whose reckless chase of a suspect down a freeway off- ramp in the wrong direction led to that man's death in a head on collision, was held accountable, but not specifically because it was, technically, a death in police custody. It's likely that the perspective of those who were wounded or died is not reflected in these narratives because those people (or their survivors) are not allowed to attend or address the PRB. With the exception of Mr. Cannard's death (which is barely noted) the Board, as usual, doesn't seem troubled by the deaths or injuries suffered by the community members in these incidents.
(B/C2) On April 19, 2018,*-3 Officer Valadez pursued Mr. Cannard as a suspect in a hit and run. The officer, according to the summary report, was focused on "-- redacted--" rather than the oncoming traffic. The Board found Valadez in violation of three Directives: Vehicle Pursuits (630.05), Satisfactory Performance (315.30) and two counts on Truthfulness (310.50). It's not clear what the difference is in those two allegations, except that one is linked to Reporting (900.00) and Conduct (310.00). The fact that Valadez's actions led to Cannard's death is noted only in a roundabout manner: in recommending discipline the Board notes Valadez's "failure to balance the risk to public safety contributed to the death of a member of the public." Two members of five voting noted any of the allegations should have led to termination, but two others only focused on the Truthfulness violations.
The Pursuit violation was because Valadez unnecessarily placed members of the public in danger of harm or death. The Satisfactory Performance finding came as Valadez did not seem to understand the policies, did not ask for help, and did not appropriately weigh the risks of his actions. It's not mentioned that he had only been back on the force for only two weeks after having been fired for off-duty sex with a person who was unable to consent (November 2017 PRB Report) but reinstated by an arbitrator.*-4 There is also no mention of his discipline for making a "tough guy" video that included a person who'd been brought to detox (July 2015 PRB Report).
The Truthfulness violations both had to do with Valadez being "evasive and deceptive" about whether he even engaged in a car chase at all, initially saying he was pursuing Cannard but then changing his story despite what he said on the scene and in a police report in an effort to avoid responsibility.
(B/C3) In October 2018, just a few days after police killed Sam Rice (see below), Officer Fender and a Clackamas County Sheriff's Deputy pursued Jason Hansen, a suspect, who ran from an allegedly stolen car (though the report only states the officer "believed" he was guilty of "felony elude"). The Board said the officer used force in self defense after Hansen shot at him. The Board praised Fender for being able to act quickly, noting how hard they believed it was to make such a decision. The Report says the Board was "pleased" that Fender attended the hearing and had recovered from his injuries, which again, are nowhere noted being the result of the Clackamas Deputy's dog biting Fender, who is also a K-9 officer for the PPB and had his dog present.
The supervisors in this case made sure to get both Fender and Hansen to the hospital. Though Hansen wasn't released until early November, Fender was out almost immediately. However, he used the minor wounds from the dog bite as an excuse to delay the otherwise-mandatory interview with Internal Affairs which is supposed to take place within 48 hours. This delay is not mentioned in the Report. One interesting side note: one supervisor was found in policy for bringing in "overtime officers" to respond to the scene. Perhaps one reason the PPB is accruing so many overtime hours is the rash of deadly force incidents in the last three years (19 total versus 15 in the previous four years).
(B/C4) The format of the PRB's case summary files is such that some of the details of what led up to Officer Wingfield using a choke hold on Jonathan Harris on August 31, 2018 come long after the description of the choking. Apparently, Wingfield and four other officers were trying to arrest Harris on a warrant, and they got into a fight with him. Wingfield told the other officers he saw that Harris had a gun. Officers #3 and 4 (as they are called) used hand strikes to "gain control" or get Harris to "stop resisting."*-5 Officer #5 used force to put cuffs on Harris. Wingfield knew the public was present and worried about the firearm that Harris was "capable of using," even though this does not mean Harris posed an immediate threat of death or injury as required in order to use Deadly Force. Wingfield then "wrapped his arm around [Harris'] neck to limit [his] breathing and make him uncomfortable." In 1985, an officer used a choke hold on an African American security guard he mistook as a suspect, leading to the death of Lloyd "Tony" Stevenson; the Bureau banned the choke hold after this incident. The Board apparently began a debate about whether Wingfield's hold was the specifically banned "carotid hold" but gave up and agreed his deadly force was justified "regardless" because he had to get Harris into custody. The Board praised Wingfield's "continued analysis" and "over-abundance of caution."
Nowhere is it mentioned that Wingfield was involved in the shooting death of Thomas Higginbotham in 2011 or the shooting of Jonah Potter in 2012. In fact, the Board's only recommendation in this case other than the astute observation about not presenting the suspect's criminal history was to see whether the 911 operators knew and could have informed police that Harris might have been armed.
On the bright side, PCW joins the Board in commending Officer #2 for realizing that the choke hold meant the incident needed to be treated as deadly force, leading to the appropriate separation of witnesses, calling in Detectives and supervisors, and the automatic review by the PRB.
(B/C 5) The narrative around the December 7, 2018 shooting of Ryan Beisley is similarly jumbled. The Bureau's own web page about this incident*-6 states that Beisley was shot at by police both inside and outside the Starbucks coffee shop at 3030 NE Weidler, even though the PRB summary implies all the shots were fired outside the business. The Report lists the perspectives of Officers Lucas Brostean, Dustin Lauitzon, John Sapper, and John Shadron as officers #2, 3, 1 and 4 (though it's not clear who is who or why they're not in sequence). Several of them describe Beisley coming out of the coffee shop "with a purpose" (#2) or "with a mission" (#1). Officer #4 said he tried to de-escalate and ordered Officer #8 to use a Taser on Beisley when that failed; the Taser is not mentioned on the Bureau web page. Officer #1 says he started firing his gun when he saw Beisley point the gun at him and Officer #3; Officer #2 fired because he heard gunshots and thought the suspect (presumably, the narrative is badly written) had shot at #3 and #4; Officer #3 saw the gun pointed at him and "heard a loud pop" so started shooting; Officer #4 said Beisley came toward him with a gun and pointed it at his face. Officer #4 says he stepped back, saw Beisley move "with intent" and fired three times. All in all, there is the great possibility that the officers were engaged in what is called "contagious fire," where hearing one officer's gunshots makes them fire their own weapons.
Miraculously, Beisley survived the shooting, though the mug shot on the PPB web page shows his face full of abrasions and blood. It is not clear how badly the officers injured him.
Also confusing is that Officer #1, who appears to be the first to fire his weapon, is listed as coming in once hearing shots were fired (in the post-shooting analysis), and having asked for a "long gun." It's not clear how having a rifle at a business with customers inside it, which is nestled in a huge grocery store (Fred Meyer Hollywood) is safe for the public. Officer #1 was apparently acting as a supervisor when he became involved in the situation, though all four cops involved are ranked as Officers. He handed off supervision to Officer #6 when they arrived, though Officer #5 also appears to have been in command at some point as well.
Somehow, Officer #9 used a shield to pin Beisley to the ground while other officers tried to cuff him, even though the Report also says Officer #11 used a control hold, Officer #10 put a knee in his back, #12 took his right arm to the small of his back, Officer #14 grabbed his ankles, and Officer #7 had one foot on him to stop him from rolling around and his _other_ foot on his back. It is too bad that despite all the community members around (and at risk) in this incident there is no video to show how all six officers were on top of one man at the same time. For the record, Officer #13 was on scene as "lethal cover" when they took Beisley into custody,*- 7 and Officer #14 was additionally "less lethal cover," witnessed the shooting, and helped put Beisley on a gurney when he was sent to the hospital.
This was the case where the Board wanted to make a recommendation-- about protocols*-8 including checking for public safety-- but they were unable to due to lack of quorum.
(B/C6) The most disturbing fact about the killing of Samuel Rice on October 10, 2018 is that at the time Officer Kelly VanBlokland shot him in the head with an assault rifle, Rice was not posing an immediate threat of death or harm to anyone. The summary report merely says that VanBlokland considered that Rice had made an earlier threat to stab someone at a 7-11, taken his girlfriend into a motel room against her will, had a history of domestic violence against her, threatened to kill the police of they did not leave, and the negotiators were not making progress that he had to take his "last change to rescue the victim [sic] by disarming the suspect." Disarming and assassinating are very different actions. Media reports state that at the time, Rice was in the motel room's bathroom by himself, thus not capable of harming the female (who, it should be pointed out, was considered a "hostage"; PCW would argue that Rice was the victim in this scenario) nor VanBlokland or any of the cops from the Special Emergency Reaction Team (SERT).*-9 The Board supported VanBlokland's clear violation of Bureau policy and state law (since there was no immediate threat) by saying the female had told police Rice had a knife, had barricaded the door and threatened to slit her throat.
The summary quotes Officer #2 as saying that the SERT's "Hasty Team" (whatever that is) supported the sniper shot" to rescue the female. Sergeant #5 (listed as an officer) called in SERT and the Crisis Negotiation Team and handed off control to Officer #2, then #3, then #4 when they arrived, as well as ordering another Sergeant to set up a perimeter. This is the first reference in the Report to the Portland Police Association (PPA), where Officer #4 is reported to have separated VanBlokland and the witness officers to "await the arrival of the PPA representative." Presumably the more important point is to stop them from getting their stories straight and have them await being interviewed by Homicide Detectives and Internal Affairs.
This was the second case where the Board recommended not including a person's criminal history unless it was known; thus it is unclear whether the history of domestic violence was known to VanBlokland when he stated that was one reason he killed Rice. As noted above, there is no discussion at all about this being a case where a person was in some kind of mental health crisis, despite the years of changes brought about by the Settlement Agreement with the US Department of Justice.
(B/C8) Another person who clearly needed help, and not death by police bullets, was Andre Gladen, who was still in a hospital gown after being released from a visit to a SE Portland psychiatric hospital when he came upon a stranger's home and made his way inside. Officer Vosu, rather than call for backup, ended up confronting Gladen, asking the home's resident for help (which, according to the Report, he refused to give, even though other narratives said he did), and backing himself into a bedroom with Gladen blocking his way out. This is very similar to when Officer Wingfield and his partner got themselves trapped in a room with Thomas Higginbotham in 2011 and then fired on him because they failed to leave themselves an escape route. Vosu fired at Gladen, who allegedly had an object in his hand that later turned out to be the knife from Vosu's protective vest. Gladen's relatives say he is legally blind and he would have no way to have seen that knife. The Report dances around the fact that Vosu claims the knife fell from Gladen's hand and embedded itself in the floor, then Vosu removed the knife and _put it back_ once investigators were combing the scene. The Board looked at the post-shooting actions of the shooter officer (very rare), saying Vosu thought he was helping by putting the knife into the floor, having been concerned Gladen would grab it (while dying of a gunshot wound). They wrote it off as Vosu being a "two year officer not trained in how to process a crime scene." Also, Vosu initially used a Taser against Gladen, which was considered but also found in policy.
The Board recommended a debrief about asking for cover officers, but it was not attached to any specific finding, so it is not clear whether this happened. They also recommended training on guidelines for knives intended to be used as weapons (presumably referring to when officers carry such knives), and a policy change around securing weapons used in a deadly force incident (it is not clear if this means officer weapons or suspects').
Several cases had to do with officers making inappropriate comments or taking inappropriate action against their fellow officers. Here is a rundown on four cases involving five officers.
(B1) In this incident, Officer #1 made inappropriate comments to another officer of a nature that is not clear from the context of the Report. The Board found the comments violated rules of Conduct (310.00) and Discrimination (344.00), though one officer didn't think the comments violated Human Resources rules because the two officers had a friendly relationship. The others thought the offending officer "crossed a line and did not know when to stop." These two allegations were Sustained and led to one day off without pay.
Officer #1 was not a supervisor, but told the second officer to work on some kind of project in their off hours (the nature of the work is redacted), and contacted them off duty even though they asked Officer #1 to stop, both possible violations of the "Laws, Rules and Orders" Directive (315.00). Officer #1 also may have made inappropriate comments about people's sexual orientation (Conduct and Discrimination). All three allegations led to "Not Sustained with a Debriefing" finding.
This was the case where, despite these various proven and likely violations, the Board suggested changing the Discipline Matrix to allow less than one day off for violations of the discrimination rules.
(B4/B5) This was actually one case involving two different supervisors who, according to the cover memo, received different discipline, so PCW treated it as two separate cases even though they are reported in one summary file. The supervisors heard Officer #3 make a sexually explicit remark about --redacted-- at a Precinct. Supervisor #1 told Officer #4, who reported it to Internal Affairs, but not until past the required deadline of two work days. Supervisor #2 also reported the incident at some point. The PRB noted that the incident did get reported, which was a mitigating factor, but the Supervisors didn't see the comment as a violation, which was problematic. They recommended one day off without pay for both Supervisors. Former Chief Outlaw agreed, but Supervisor #1 resigned before the forced leave.
(B7) Another Supervisor (of a redacted Division at the Bureau) made inappropriate comments about race, indicating that a ranking officer of color who was under investigation would be fine because they "[don't] look like me." Because this meant the Supervisor believed people are disciplined differently due to race, the Supervisor was found out of policy on the Discrimination Directive (344.00) on a 5-0 vote.
The Supervisor also called two employees "liars" and seemed to want to make Officer #2 want to quit by "making their work life unpleasant." The summary report on this case is very badly written, saying on the one had that the Supervisor had legitimate reasons to deny Officer #2 the ability to undergo a specific training (also redacted) and for making them write an essay about a training video they had missed watching. It is not noted whether making officers write essays is common practice. The Supervisor then left Officer #2's name off of an eligibility list which was seen as an effort to embarrass them, leading the Board to agree there was hostility in the workplace. One Board member thought it was ok to leave the name off the list and to deny the training (this fact does not on its face contradict the other four members, thus the confusion), asking for the allegation of violating the Conduct Directive to be "Not Sustained."
The third allegation, which was also Sustained on a 5-0 vote, found the Supervisor talked about which officers they liked or disliked in front of two officers (Conduct).
The member who wasn't sure about the hostile workplace suggested one week off without pay, while the other four members said the Supervisor should get two weeks off, particularly because the officer had previous discipline in February 2017 and this would be the second violation in two years. (Readers may want to comb through previous PRB Reports to figure out which case this may have been.) The Supervisor retired before the discipline was imposed.
This case also included five other allegations which were not originally Sustained. The Report says that meant they were not under the purview of the PRB. Portland Copwatch strongly feels that even so, the Board as a whole should be given the opportunity to review all of the allegations related to the same case/incident as the totality of the circumstances may help change the recommended findings.
(B2) In this case, actions spoke louder than words, as one officer drew a face on a target, scrawled in the name of an officer standing next to them at the firing range, put the target up and shot at it after laughing. The Board decided that "regardless of intent" (ha, ha, shooting at someone is so funny?) the officer needed to be held accountable. During the investigation, the Report says, several witnesses "hedged their testimony," which may be a diplomatic way to say they threw up the "Blue Wall of Silence" to mitigate what happened to this cop. PCW wonders whether both the officer who made and shot the target and the person whose name was written were both white men. If not, there should have been more allegations investigated.
As it was, the officer was found out of policy for a Conduct allegation, but the Board did not sustain a Truthfulness violation because they say there were "different perceptions" of what happened. This is a police department we're talking about here, not a private gun club-- someone could easily have retrieved the target as evidence of what happened regardless of the "perceptions." This was the officer's second violation in three years but they took steps to "amend the problems." The Report says an aggravating factor was the officer's role ---redacted--- and --redacted-- for a similar issue. Four of five members suggested two days without pay, while one recommended just one day off because the mitigating and aggravating factors balanced each other out. For some reason the former Chief agreed with this lone voice and only gave the officer one day off.
FENCES, BEACHES AND AUTOMOBILES: MISCONDUCT WITH COP CARS
In addition to the death resulting from Officer Valadez's improper car chase, three other cases revolved around misuse of police cars, two of them involving the same officer.
(B/C1) Officer #1 in this case was not originally part of a chase being conducted by Officer #2, who lost sight of the suspect while Officer #1 was laying out spike strips. Officer #1 then saw the suspect and radioed in updates about where the suspect was headed-- but not letting dispatch know that Officer #1 was now engaged in the chase. According to the report, the suspect damaged a fence when crossing over private property, and the cop followed, driving over the broken fence and property. The Board found that Officer #1 did not weigh the risk benefits or adequately updated a sergeant about what was going on when they could have ended the chase, a violation of the Vehicle Pursuits Directive (630.05). Officer #1 furthermore showed unsatisfactory performance, they said, by not assessing the risk of harm by conducting a high speed chase on neighborhood streets, and failing to contact the owner of the fence that was damaged. When reporting on the incident, the officer claimed they did not know the fence had been damaged, but gave "evasive and aloof" answers. Because they could not prove what the officer did or did not know, they gave a finding of "Not Sustained with a Debriefing" to the Reporting allegation (Directive 900.00). It's not clear why this also wasn't examined as a Truthfulness issue.
Three members of the Board suggested a Letter of Reprimand, because it had been a long time since the Officer's last discipline. Two others thought the officer should get a day off without pay because they didn't take responsibility. The former Chief changed the finding about Satisfactory Performance to "Not Sustained with a Debriefing" which is strange, since it was not in dispute that the cop did not follow up with the property owners. She agreed to give a Letter of Reprimand.
Because there were people whose property was damaged in this case, not to mention that the officer was chasing a member of the public, it should have been categorized as a "C" (civilian-involved) case. It's not clear why the Bureau repeatedly removes the community members from the process. The people whose fence was damaged could have appealed the findings had the case been properly categorized.
(B3 and B6) These two cases involving Detective Hollins and his take-home cars are a fascinating look into officer entitlement. PCW has found a photo of Detective Hollins and he appears to be an African American man, meaning that the sense of entitlement likely came not only from his position as a police officer, but also as someone who had retired and was rehired, so in many ways he had nothing to lose.*-10 The first case was heard in December, 2018 and involved Hollins putting 15,635 miles on his take home car in five months (which comes out to 100 miles a day), with a total of 100,000 miles in three years (just over 90 miles a day). The Detective did not dispute that he violated Directive 1245.00 on Vehicle Use, saying he took trips to Seaside with the car, presumably not on police business. A second allegation said Hollins violated the Conduct Directive by using up gas paid for by the Bureau (and taxpayers, we would add), adding wear and tear to the car, and making it so he could not be on call for emergencies (Seaside is 80 miles from Portland). Both were Sustained by all five Board members.
In discussing the discipline, the Board noted the Detective abused his privilege and at some point had been living in the vehicle, though he did not mention that to Internal Affairs. He also did not tell his supervisor he was unable to respond to calls. They recommended three weeks off without pay for this particular conduct.
In April, 2019, Hollins was before the Board again, accused of putting 145 miles on a cop car without being able to say why, while he was supposed to be on a stakeout. In addition to evidence showing he had logged into a Precinct while supposedly on the surveillance detail, Hollins picked up a family member at school and drove out to a business near the airport. He claimed he was doing paperwork in the parking lot.
The Board found Hollins violated the Satisfactory Performance Directive in two ways-- misusing the vehicle and leaving work without permission-- and that he lied by not telling investigators about picking up the family member. The former Chief changed this finding to "Not Sustained" and lowered the Board's proposed firing of Hollins to a demotion, presumably making the three week suspension from the earlier case moot. As noted above, Hollins was set to re-retire from the Bureau in September anyway, so at most the demotion will cost him some retirement benefits. It seems the repeated misuse of cars should have been reported to the DPSST so that Hollins would not take advantage of another police agency after his second retirement.
The Board's recommendations in this second case were to make clear of the expectations of officers on special duty, have the Employee Assistance Program (EAP) be part of the Wellness Program now in development, and to make sure the Chief's office considers other officer safety when contemplating firing cops. In the first case, they noted that the Portland Police Association brought up some kind of issues about the officer's personal life which they suggested the EAP could have helped with. Since he was back before them within four months, it's likely that even if that happened, it did not help.
WHEN IS A USE OF FORCE NOT A USE OF FORCE? (PHANTOM TASER)
(C1) As noted above, this case involved an officer who fired a Taser at a fleeing suspect, who eventually escaped. Thus it was not clear whether the Taser harmed the person. The Board believed the officer's story that the discharge was accidental. However, that explanation could have been because the officer knew that if the suspect did not pose an immediate threat, it was against policy to use the electro-shock weapon. The person was wanted in a robbery, but there was no mention of a weapon. The Board found the officer failed the Satisfactory Performance guidelines by using the Taser during a foot chase, which created a risk of injury. They felt it was not provable whether the discharge was a violation of the Force Directive (1010.00) because accidental weapon use is not covered in that policy (by their reading).
The former Chief found the officer did violate the Force policy, but still only imposed a Letter of Reprimand, which is odd for such a serious violation. The Board recommended adding accidental weapon use to the Force policy.
CHUMMY TEXTS, WARNING ABOUT WARRANTS FOUND TO BE OK
(B/C7) We have saved our discussion of Lt. Niiya's texting with notorious alt-right activist Joey Gibson for last, in part because we have already commented on it elsewhere and in part because the entire record of the investigation was released to the public. Thus, in contrast to our elaboration on most of the other cases in the PRB Report, we are focusing mostly on what is included in the Report in this commentary.
Given the release of the entire file, it is irritating that Niiya and Gibson's names are both redacted here, along with Niiya's assignment (the Rapid Response Team which deals with protests), his role in that assignment (liaison to organizers) and his varying ranks while performing that task (Sergeant, then Lieutenant). The case was sent to the PRB because, as noted above, an Assistant Chief felt the original "Not Sustained" findings-- meaning that maybe Niiya violated policy and maybe he didn't-- should have been "Exonerated," meaning his actions were in policy.
There were three specific allegations, two about Conduct and one about Dissemination of Information (Directive 310.70). The Conduct allegations focused on whether Niiya's communications with Gibson were unprofessional. The Board noted there were 11,647 text massages with "no examples" of unprofessional conduct, relying on the "Independent" Police Review's investigation which found no wrongdoing.*-11 However, the texts included Niiya encouraging Gibson to run for office, warning one of his followers about an arrest warrant (more on this below), and alerting Gibson, a protest organizer, when counter- protestors were nearby, something that is not afforded to protestors with left-leaning sensibilities. The Board noted that the public's negative reaction to the release of some of the texts was because they did not have access to all of the information, but noted that Niiya should have been clear about his intent regardless. Three members of the Board felt the two Conduct allegations should be found Exonerated, with one thinking Niiya should also be debriefed. Two others supported the original "Not Sustained" finding, another example of how knowing whether these were the civilian members of the Board or officers would be enlightening.
The vote flipped, though, when considering whether Niiya telling Gibson that "Tiny" Toese had a warrant out and might want to stay away from a protest was a violation of the Dissemination policy. There seemed to be an agreement that the existence of the warrant was public information (though most people don't have access to that information, it should have been noted). Three members thought it was possible Niiya inappropriately tried to help Toese avoid arrest, while two thought his actions were in policy. However the Report indicates they think Niiya's intent was clear with "overwhelming" evidence, so as worded the incident did not even occur as alleged. This is the definition of an "Unfounded" finding, which the former Chief then assigned to all three allegations, even though it is objectively possible that Niiya was in violation each time. It seems that the former Chief's decision was more to undo the political damage done when Mayor Wheeler, her boss and the Police Commissioner, raised questions about Niiya's behavior publicly before the investigation began. It is just as wrong to change the findings for political reasons as if the Mayor's words were premature.
The Board's recommendation, redacting the word "liaison" again for some reason, is to have the Training Division provide guidance to those who take on that role and to inform the public what that role entails.
PCW repeats that the PRB's Reports could be improved by including:
--the date of the incident in question (dates were given in just five of the 15 cases);
--the number of voting members and number of votes (as noted above, in five cases the votes were just listed as "unanimous");
--which opinions were from officers, civilians, IPR staff, or Bureau management;
--the gender of all persons involved;
--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, 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.)
Portland Copwatch has been reviewing these Reports for over five years. While we value the opening of a window into the Police Bureau, it is a window that is only opened a short way and which is obscured by darkness in the form of redactions. The PRB process itself, we repeat, needs to be open to the public in some way, whether that means open hearings or only letting in the media and/or the community members affected directly by the cases. We note again that the OIR Group suggested the Board ask tougher questions in deadly force cases, and that the Bureau's own commitment to transparency and building community trust requires that these Reports and the process be more open.
As we wrote in September, "we also continue to object to the Bureau's policy of treating deadly force investigations as 'reviews' rather than complaints, which makes the victims/survivors of such incidents ineligible to file appeals as is the right of anyone who's been treated to behaviors ranging from rudeness to force that is less than lethal."
We believe this analysis is the first public response to the PRB Report. While PCW appreciates the opportunity to scoop the media, we also think the Bureau should be promoting the publication of these Reports rather than quietly posting them a day or two before a large holiday.
*1- The PDF for this Report is dated December 13; it is not clear why there was a delay in publishing it.
*2- For details see Portland Copwatch's informational graphic on 208 officers involved in deadly force
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Posted December 31, 2019