One of the most critical questions involved in independent investigations of police, whether compelled statements for administrative review will invoke immunity for officers in the criminal investigations, is raised by several of PARC's recommendations. Chief Foxworth wrote in his response that he is considering the idea of creating a "Force Investigation Team" to handle serious use of force incidents. Though the idea isn't fully explained, it may entail some kind of hybrid criminal/administrative investigation.

The new PARC report includes information on the shooting of Jose Victor Santos Mejia Poot, who was mistakenly taken to a psychiatric hospital after a police beating and shot two days later (p. 58). Despite the broad implications of this case, which began with a dispute over 20 cents of bus fare and ended after a Crisis Intervention Team officer who came to the hospital on one call, but wasn't available when Mejia was shot, the report only makes one formal and one informal recommendation. The formal recommendation: That the police not respond to "routine patient management situations in mental health facilities" not involving criminal activity (recommendation #2005.6, p. 59), which Chief Foxworth says is essentially the current policy. The informal one: that "officers dispatched to mental health facilities be appropriately equipped with less-lethal weaponry." We wonder why PARC did not recommend a prohibition on taking firearms into hospitals; perhaps next year the IPR can pay Portland Copwatch some of PARC's $55,000 annual fee for a more thorough list of suggestions.

PARC mentions nothing easily identifiable about two situations in which police took shots at African American men when they should not have--the case of Bruce Browne, who had disarmed an armed potential criminal at a gas station and was shot, and the case of Tyrone Waters, who had threatened police but was being negotiated with (and shot by "beanbags") by other officers including now-Chief Foxworth when an officer shot at him and missed.

In the last report, PARC included charts with information about the suspects who were shot at or who died in police custody, including that 35.5% of those suspects were people of color in a city that is 77% white. Portland Copwatch made note of this in our analysis of the 2003 report, wondering why the only other mention of race was that there was "no indication of racial or ethnic bias." In the new report, they deal with the issue by not dealing with it: Not only is an analysis of race absent, but there are no statistical tables. Portland Copwatch statistics show at least 4 of the 15 people shot or shot at in the time frame were people of color (26.7%).

Another statistic missing is the question of whether the suspects were armed. PARC showed that eight of the 31 cases studied in 2003 (25.8%) involved unarmed citizens; this time we believe at least 5 of the 15 (33%) had no weapon (other than the debatable use of their vehicle as a weapon), while Jose Mejia pulled an aluminum rod from a door-locking mechanism during his (previously unarmed) confrontation with police.

The report does note that at least 5 of the 15 cases involved people who were in emotional crisis, reaffirming two of their recommendations from 2003 about putting more emphasis on the Crisis Intervention Team (CIT). The section on emotional crisis does not mention names but covers the cases (we believe) of Mejia, Waters, Daniel Brink (who had been threatening his grandmother with a knife, and PARC wondered why the police didn't debrief her before confronting Brink [if we correctly infer this is the same case]), Lawrence Ramirez (who was allegedly threatening suicide, but was not holding a gun when he was killed), and George Waldum (who had threatened a cable installer with a shotgun and was shot by an officer who killed another person in emotional crisis a few years earlier). Although it does not list the recommendation separately, PARC does include the idea we have put forward for years, "universal CIT certification should lessen the overall number of officer-involved shootings, [so] the cost of certifying all ...officers would be at least somewhat offset by the money saved from not having to deal with the consequences of those avoided officer- involved shootings" (pp. 57-58). They note that of 1300 CIT-involved incidents in 2000-2001, none ended with shootings.

2005.1: Set a deadline for implementing the "Early Intervention System" (EIS) to flag trouble officers (p. 22). During the debate over the creation of the IPR in 2000, Portland Police said their "Early Warning System" (same concept as the EIS) was working just fine. Now it is five years later and PARC says a fully working system could be "up to two years" away. For his part, Foxworth agreed with the idea and says he thinks the system can be up and running by spring 2006. Foxworth also wants to create yet another layer of oversight, further complicating an already confusing system: an Office of Professional Standards.

2005.2: Create procedures for Internal Affairs (IAD) and Training Division personnel to conduct their reviews of shootings and deaths in custody (p. 30). Chief Foxworth agrees and implies these guidelines are in place, though no hard copies are included in the report.

2005.3: Make reviews of cases in which suspects are hospitalized mandatory (p. 30). The Chief says the Bureau is making the change to include reviews of in-custody deaths and "hospitalizations resulting in the patient being admitted." We are concerned that this means people who are treated and immediately released to police custody (say, after receiving stitches) will not have their cases reviewed.

2005.5: Officers should wait for a supervisor and backup before extracting unarmed people from cars, and all tactics used for extraction should protect the officers and suspects (p. 55). Chief Foxworth has mixed reactions, stating that the Bureau will not require a supervisor to be on scene, but notes that training does currently "discourage" officers from extracting suspects from vehicles by themselves. The Chief mentions tactics, but not safety in his response.

2005.7&8: The Bureau should be clear that officers who use deadly force need to get medical aid to the wounded, and that Internal Affairs and the Use of Force Review Board should be sure officers follow this policy (p. 63). PARC bases this recommendation on three (of the 14) cases where medical attention was withheld for up to 90 minutes. (The longest was the case of Michael Jaquith, who an officer said was driving at him with a van, yet who was shot in the side. After the shooting, the officer could not see Jaquith's hand and thus did not try extracting him for an hour and a half-p. 60).

The report encourages compliance with medical aid policies to "demonstrate to members of the community that the Bureau adheres to the value" of a reverence for human life. "The failure to assist a seriously wounded suspect when it was safe to do so will upset the community." (This is one of the four places that PARC mentions that the police can gain community credibility by following their recommended procedures--up from two times in 2003.) PARC notes that the PPB initiated some changes to their medical aid policies even though the issue wasn't raised in the 2003 report. They were, however, raised by the Albina Ministerial Alliance and Joe Bean Keller, father of Deontae who police shot and let bleed to death in 1996, as one of the major issues in the Kendra James shooting. Chief Foxworth says he agrees with PARC and has incorporated the ideas into policies, though what he cites directs officers to call for medical assistance "if any significant changes are observed," rather than immediately calling for aid to an injured suspect when the situation is safe.

2005.9: Supervisors should review the work done by detectives for appropriateness and proper documentation (p. 66). This recommendation comes on the heels of a number of deficiencies PARC found both in 2003 and this year's report, including:
--Witnesses who were not interviewed, and some who were interviewed but not taped
--Leading questions such as "Did you have some concerns about the person who got out of the driver's seat regarding your safety, other officers' safety, or community safety?" (p. 69)
--Incomplete files, in some cases due to officers putting information in "personal files"
--Forensics tests which were not performed
--Attempts to influence witnesses' perceptions. Two witnesses said the officer who shot at Michael Jaquith was trying to stop him from fleeing, not in fear for his life; despite detectives' efforts, the witnesses stuck to their stories. In another case, a female witness originally said she felt an officer was not justified in shooting, but modified her statements after being "pointedly" questioned by detectives (p. 68).
--Important information not raised in interviews: The reserve officer who fired 4 of 19 shots at robbery suspect Daniel Cromb did not mention discharging his weapon to detectives.
--Inconsistencies were not resolved, such as, if Cromb was pointing a pellet gun at the officers, why was he only shot in the back and the back of the arm? (We are impressed that PARC raised this provocative question.)
Chief Foxworth says he considers this recommendation completed with the revised Detective "Standard Operating Procedure" (SOP); we won't know whether it is working until at least 2008, the first year PARC can possibly have a report out regarding incidents investigated in 2005.

2005.10: Deadly force investigations, and individual interviews, should be led by officers of equal or greater rank than involved officers (p. 67). PARC notes an instance where a Commander and Lieutenant were on the scene, and were interviewed by lower ranking Sergeants. While the interviews of involved officers are now directed to be done this way, the overall investigation and witness officer interviews are not. The Chief says this is done, even though he has not incorporated the specific changes PARC has requested.

The report also makes a number of recommendations about incident management which are not enumerated like #2005.1-10.

Incident management: PARC suggests supervisors on critical incident scenes take charge and share information; take account of risk factors; assemble sufficient resources before acting; alert officers to danger; communicate tactical instructions and decisions; and over-rule inappropriate strategies (pp. 47-53). They note: "A police department that consistently [responds to critical incidents in a sound manner] will have gone a long way towards eliminating avoidable uses of deadly force and frayed community relations." (This the second of the references to community reaction.)

PARC also includes strong recommendations regarding follow through after shootings, noting a "lack of commitment to the review process" shown by the Bureau's "after action" practices.
--After action reports were not drafted--or lost--in 6 of the 14 cases; a seventh was only created after PARC called attention to the Bureau that it should be done; a 50% rate of follow-up (p. 71).
--One report was written by a Lieutenant involved in the incident.
--Numerous tactical deficiencies were not highlighted, including a Sergeant who didn't back up his officer in a solo confrontation, and an officer who engaged in a solo foot pursuit (p. 72).

Related to that, they point out that 4 of the 14 cases did not go to the "Review Level Committee" to determine whether they were in or out of policy; two of the 10 reviews only happened after PARC brought the issue to the PPB (four and half years after the incidents!-p. 73).

PARC praised the Bureau's work on adding a restriction prohibiting using faulty tactics to justify the use of deadly force (#3.4, p. 16), calling the PPB a national leader on the issue. Interestingly, they suggested that the Bureau could go farther by ensuring the principles of this policy are taught in training and used as a guide in investigating incidents.

Similarly, they gave high marks to the Bureau's new investigative checklist for shootings and deaths in custody, but suggested that a question be added regarding whether an officer could have effected a "tactical retreat" (#4.16, p. 43).

Two other issues the Bureau has addressed to PARC's satisfaction are ones Portland Copwatch embraces with reservations: the requirements for detectives to cover all areas on that checklist in (1) shootings and (2) deaths in custody cases (#s 4.17&4.18, p. 43). The Bureau's policy says to use "all applicable areas" of the lists, meaning the Detectives could use their discretion to avoid asking important questions.

Most significantly, while the Bureau has included a statement about the "integrity and value of human life," their statement does not go as far as other cities (#3.1, pp. 13-16). PARC notes that police in Alaska state, New York City, and Los Angeles all make statements that deadly force should only be used as a last resort, or when "the officer has no other reasonable and practical alternative." Even though such a statement is still open to interpretation, it would likely help reduce the number of shootings in Portland. PARC tells the PPB, "we fail to understand" why they have adopted a similarly strict rule regarding shooting at vehicles but not for shootings in general. They dismiss the police argument that the added language will cause "too complicated a thought process."

PARC also notes that their recommendation that officers not use deadly force when an officer knows the suspect can be apprehended later without causing danger to the community (#3.3, p. 17) was not implemented. Another part of the same recommendation, to note whether the suspect poses an "immediate" danger, was added. PARC suggests that the PPB still needs to add a phrase about deadly force not being used "where other means of apprehension are reasonably available." Certainly, this standard may have saved the life of Kendra James, who police claim was trying to drive away from a traffic stop when she was shot and killed in 2003. (PARC cites a case where officers used a radio tracking device to follow the car of a robbery suspect as an example of an alternative tactic they can support on p. 48. In the James case, the police knew who she was and had all relevant information on the car she was driving.)

The Bureau made a step forward, the report notes, when they required officers to report each time they draw and point a firearm at a suspect, but they have not, as recommended, required reporting each time a weapon is drawn without being pointed or clarified in what circumstances it is OK for officers to draw their guns (#3.5, p. 19). While such requirements in Los Angeles, DC, or Cincinnati have not hindered police, PARC argues, the Portland Police Association seems to feel this requirement is just too much. In addition, when multiple officers draw and point weapons, the PPB now only requires one officer to fill out a report, while PARC believes every officer should file a report; we agree.

PARC notes that the PPB's implementation of a Use of Force Report separate from regular police reports is just what they were asking for (#3.6, pp. 21-22), but part of their recommendation was integrating that information into an "Early Intervention System," which isn't functional yet (see above).

The PPB has agreed to require that the Detective Division investigate "negligent discharges" of weapons, but not incidents in which officers shoot animals, as requested by PARC (#4.2, p. 30). We understand that society places different values on human and non-human life; however, by failing to investigate these incidents, the Bureau leaves itself open to police using deadly force in inappropriate situations.

A recommendation that officers be interviewed "immediately" after an incident has been implemented by a verbal agreement with the PPA, but not formally incorporated into any written agreements (#4.4, pp. 37-39). As noted above, the PPA has made it clear that they will not direct their members to participate, and state law makes it possible that by ordering the officer to be interviewed, they can never be prosecuted if they committed a crime during the incident (because they will have given up their Fifth Amendment rights). PARC notes that all but one of the PPB's recent interviews have happened within 24 hours, but encourages the police to work toward holding the interview before the officer goes off duty. They write, "Members of the community are more inclined to presume good faith on the part of a police department investigating its own members if the appearance and reality of the integrity of the investigation are present." (This is the third place where PARC's report refers to community perception. It also mentions that the PPA's voluntary cooperation is in "a product of public pressure.")

While the PPB has changed its policy to "sequester" officers by ordering them not to communicate prior to being interviewed, PARC notes that the revised Directive allows officers leeway by merely "recommending" they not obtain information through the news media or other sources (#4.7, pp. 32-33). It also only covers the officers for the criminal proceedings, meaning officers may compare notes prior to the conclusion of an IAD investigation.

PARC suggested that officers and witnesses be separated at the scene to prevent their talking amongst themselves; the PPB implemented this idea but made an exception for large numbers of people (#4.9, p. 34). As part of the review of this recommendation, PARC noted in a new recommendation that officers should be transported from the scene by a supervisor rather than just any uninvolved officer, an idea rejected by Chief Foxworth (#2005.4, as above).

While the PPB has agreed to limit the discussions between TIC members and involved officers, the Chief's response to the recommendation to keep TIC officers and others out of the investigation scene does not mention the TIC (#4.10, pp. 43-44). Apparently the vagueness of the new policy is clarified in the "Employee Assistance Program" procedures (now in draft form); we think it should be spelled out in the Directives.

PARC appropriately applauds the Bureau for eliminating "pre-interviews" in which detectives gathered some information before recording officer and witness statements (#4.15, pp. 39-40); they also warn that procedural discussions, which are continuing to occur prior to recording devices being turned on, should be taped as well.

The final cautionary acclaim from PARC is about a recommendation the Bureau previously claimed was "Done" in 2004 but is now "in progress" on their chart. It suggests restricting the Critical Incident Stress Debriefing (CISD) given to officers involved in shootings or deaths in custody cases to occur only after an involved officer has been interviewed (#4.19, pp. 35-36). The Bureau disallows the CISD until after a "Communiation Restriction Order" is lifted; PARC thinks this should cover the time until IAD has finished its investigation, though the Chief has only extended the restriction that long in one instance in the last two years.

Other 2003 PARC recommendations not fully implemented are: #3.2, 4.1, 5.2, 5.4, 5.8, 5.10-12, 5.14, 6.1-3, 6.8-10, 6.13, 6.15, 6.16, 7.1-7, 7.10, 7.16, 7.19, and 8.5 (29).

The first 2003 recommendation rejected by Chief Foxworth is the idea of allowing a civilian witness who refuses to be audio taped to review a written summary of their statement for accuracy (#4.13, pp. 39-41). Though the Bureau rejected the idea for fear that the witness might change their statement, PARC notes that such changes may occur anyway, but it would be best to adopt this policy because they found instances where witness statement summaries did not match their recorded statements. They put forward this radical notion: "If a detective distorts a summary of an untaped statement, that distortion is unlikely to be discovered in the administrative review performed by Internal Affairs."

The second rejected idea is seemingly simple; to video or audiotape an officer's "walk-through" of the incident scene (#4.14, pp. 41-42). The Chief says this will "jeopardize the participation of the involved member," and rejects the idea "due to the legal and contractual context." PARC rightly points out the hypocrisy that the police are afraid of witnesses using a written summary as a means to change their original statements, while officers may say one thing at the walk-through and change their story later. (For some reason, the PPB has changed the name of the "walk-through" to an "on- scene briefing." Often such renaming is a subtle way of eluding earlier criticisms.)

The draft Directive on foot pursuits (appendix pp. 8-10) allows pursuits for _any_ crime, violation, or traffic violation. It seems silly for an officer to go running after a jaywalker. The Directive further expresses kinds of behavior which might mean a suspect is dangerous, which include "looking back over his/her shoulder," slowing down to "draw the member in close for an attack," and "hand and shoulder movement [as] an indicator the suspect may be reaching into the waistband or other threat areas." All of these could also be completely innocent gestures.

For example, they cite three cases in which unarmed drivers "tried to escape" in 2000-2001 (p. 53). They noted that two times, officers inappropriately reached into the car, and two times officers tried to extract suspects by themselves. To our surprise, PARC notes that training to avoid these tactics could have prevented "two highly controversial shooting incidents in 2003 and 2004" (p. 53, referring to the Kendra James and James Jahar Perez cases). Apparently, extraction from vehicles is presently part of the Bureau's "in-service" training.

One worrisome aspect is that Foxworth reports that the civilians who are going to participate in reviewing police shootings on the UFRB--a mechanism meant to increase accountability and public confidence--will likely not be publicly identified. PARC 2003 recommendation #6.11, one of the four listed as "rejected," requested that full documentation of deliberations be provided to the Chief (interestingly, this was one of the items rejected by Chief Kroeker in 2003). Foxworth states that one of the three Assistant Chiefs debriefs him fully on these cases. He goes on to state that "we reject the recommendation about the voting logs [of the UFRB being part of the file, because] the citizen members were concerned that their names would be made public." Setting aside that the PARC recommendation didn't actually specify the voting log in its request, we must ask, how can a system which is trying to be open, transparent and accountable by including citizens be willing to suppress the names of those citizens who participate in it?

Also troubling is that although PARC recommended that the investigators who review deadly force cases be the ones to present them to the UFRB (#6.13), the Directive clearly shows that the "RU manager" (the involved member's supervisor) will make that presentation. Even worse, Foxworth's matrix says the Bureau agreed with PARC and that "investigators are taking the lead in presenting cases to the Review Level Committee" (which has been replaced for these cases by the UFRB)--in complete contradiction to what is written in the Directive.

Here are a few good items we found:

--The Bureau has apparently adopted the term "immediate cover" to replace their previous term "lethal cover," to lessen the implication that back-up officers are there to use deadly force, as requested by PARC (#7.18).

--The Bureau apparently is no longer going to destroy files on police shootings and deaths; they even appear to be willing to go beyond PARC's recommended 25 years (#8.3) and the state law requiring records retention for 75 years and say they will maintain the files "permanently."

--Use of Physical Force (Directive 1010.20) is now defined to include "pointing a firearm, Taser or impact munitions weapon, directly at a person or directed at a person in the low ready position" (appendix p. 22).

Here are some items we had concerns about:

--In his response to recommendation 7.10, that officers involved in pursuits of suspects "maintain sufficient distance," Chief Foxworth writes that this information is part of Directive 630.05. However, our review of that Directive turns up no mention of maintaining a distance from a chased vehicle, it only requires unmarked police cars, and a third vehicle (if there is one, as that is the maximum number of cars allowed) to follow marked cars at a safe distance.

--The new Directive on officer involved shootings states that the Chief is responsible for what information will be released to the public (appendix p. 13); we should keep this in mind for when victims/survivors are smeared in the press for their criminal past in cases of questionable police shootings. Officers' identities are not released mandatorily for 24 hours after a shooting (appendix p. 14).

--For some reason, when case files are sent to the IPR for purposes of review (in compliance with PARC recommendation #8.5), autopsy photos and medical reports are not included in the files (appendix p. 46).

--In the guidelines for the Use of Force Report form, a training bulletin states that "Failure to Comply" (one reason for possibly using force) may include "intent to engage in physical resistance" such as "clenching fists, tensing muscles, etc." (appendix p. 28). It does not define "passive resistance," elsewhere defined by examples as "yelling, cursing, refusal to stand up, walk or sit down." Passive resistance is used in the Pepper Spray Directive (1040.00) as a restriction on using that particular Use of Force unless authorized by a supervisor, and expressly prohibited as a justification to use a Taser (Directive 1051.00).

--One of the training courses mentioned as a possible background for officers involved in shootings is a "Street Survival training" (appendix p. 43). What the heck is that? Most likely, not putting officers out on the street with nothing but the clothes on their backs and asking them to survive for several days as a homeless person.

A few items from other cities to note:

Portland could learn a lot from the samples of Deadly Force policies included in the report. Denver's includes an excellent preamble that cautions police to remember that "there are many reasons a suspect may be resisting arrest or ... unresponsive. The person in question may not be capable of understanding the gravity of the situation. The person's reasoning ability may be dramatically affected by a number of factors including medical condition, mental impairment, developmental disability, physical limitation, language, drug interaction, or emotional crisis" (appendix p. 58). Los Angeles' policy #556.35 calls for officers to "minimize the risk of death to any person" which acknowledges that an officer may not always be able to, but implies they should try to "direct his shot to a nonfatal area" (appendix p. 64). New York's preamble reminding officers that deadly force is "the most serious act in which a police officer can engage" directs officers to give a verbal warning, and notes that "deadly force is never justified in the defense of property" (appendix p. 65).

Denver also has a policy regarding their equivalent of the Crisis Intervention Team to "use distance, time and verbal tactics to de-escalate" situations with people in emotional crisis (p. 57)

The ironic piece is that former IPR Director Richard Rosenthal, who left Portland to head Denver's new review system after suffering much criticism for refusing to oversee serious cases involving deadly force such as the Mejia case, will have oversight over shootings and deaths in Denver (p. 44).

Portland Copwatch believes the following these PARC recommendations have been completed reasonably: #3.4, 4.6, 4.11, 4.16, 5.1, 5.6, 5.7, 5.9, 6.12, 6.14, 7.15, 7.18; and these with some reservations: #4.17, 4.18, 5.3, 5.5, 5.13, 6.18, and 8.3. (19)
These are the ones in progress: #4.19, 6.19, 6.20, 7.11, 7.20, 8.1, 8.4 (7).
These are really in review: #6.4, 6.5, 6.6, 8.2 (4).
These are, by the Bureau's own admission, ongoing issues: #7.8, 7.9, 7.12, 7.13, 7.14, 7.24, 7.22, 7.23, 7.24 (9).
These were rejected: #4.13, 4.14, 6.7, 6.11, 7.17, 7.21 (6).
All others are not implemented as recommended (43).