Analysis of OIR Group's September 2020 Report on Portland Police Deadly Force by Portland CopwatchTable of contents
EXPERTS QUESTION COPS SHOOTING BLACK MAN IN THE BACK, IGNORE RACE AGAIN OIR Group 2020 Report Makes Good If Sometimes Seemingly Contradictory Suggestions, PPB Rejects Some
Starting in March, people in Portland and around the world began an uprising demanding an end to discriminatory policing, spurred on by the murder of a Black man by Minneapolis officers. However, the City of Portland's recently released annual Report on deadly force incidents doesn't mention race. The OIR Group, which has been reviewing these serious cases for policy, training and investigatory issues since 2010,*-1 finished the Report in April. For five months, the "Independent" Police Review (IPR) decided not to release the Report, claiming they wanted to hold in-person listening sessions-- which have not been scheduled. The Bureau rejected two of the Report's 28 recommendations.*-2 The 121-page Report can be found at (https://www.portlandoregon.gov/ipr/article/766203). It incorporates important information, including that the officers who shot Patrick Kimmons, an African American man, as he ran away likely should have stopped firing once his back was to them. However, neither that case nor the shooting of Chase Peeples (another Black man) resulted in either investigators or the outside experts questioning whether race played a factor in officers' decision to shoot. Though last year's (2019) Report predated George Floyd's murder, OIR raised questions about race as a factor in Portland Police Bureau (PPB) actions. Overall, new the Report includes meaningful analysis and recommendations, even if both the OIR's suggestions and the PPB's answers seem contradictory at times.
A regular critique that Portland Copwatch (PCW) has made of these Reports still holds true-- that the narratives of the cases rely on the police and others within the system for what are reported as facts. While only three of the seven incidents included this time resulted in death, the perspective of the victims (or their survivors) is not given or considered. That said, OIR does often question whether officers were always acting within policy and training, as indicated by the reviewers in all these cases (Internal Affairs, the officers' supervisors, the Police Review Board and the Chief). The overall theme is that even if there were no violations, the Bureau should be more rigorous in reviewing each incident.
One recurring phenomenon the OIR hints at but fails to fully explore is what we call "the cowboy hero syndrome," where officers appear to quickly use deadly force trying to "save the day" when they should spend more time considering options and/or waiting for backup. Supervising Sergeant Roger Axthelm ordered a cadre of officers to enter the houseless shelter where John Elifritz was cutting himself with a knife, purportedly to rescue the men inside (that they were attending an Alcoholics Anonymous meeting is not mentioned). Many officers somehow claimed they attempted de-escalation in the 35 seconds between entering the room and shooting Elifritz. There is no reflection in the Report about how having over a dozen armed, uniformed officers likely escalated the situation. In all seven cases under review, similar hero complex actions can be seen.
PCW has repeatedly noted that the Medical Examiner tends to make findings most likely to exonerate officers of any wrongdoing, yet for the most part, OIR takes those findings as gospel. They do repeat a question they raised in the 2019 Report about when the ME labels an officer- involved shooting a "suicide." They also as use the locations of the bullets that hit Kimmons to raise concerns about that shooting. However, regarding the in-custody death of Richard Barry, they accept that his death was caused by a mixture of drugs and an underlying medical condition, not questioning the fact that officers threw him to the ground, rubbed his face on the pavement and put their weight on him. In fact, they only mention that one of the two involved PPB officers claims to have pushed down on Barry with his hands, while body camera footage clearly shows he has his knee on Barry's shoulder. Also in that case, the Group raises the issue that one Portland officer washed Barry's blood off his clothes.*-3 They raise this issue only in the context of praising the supervisor for telling the officers not to destroy any _more_ evidence once Barry was hauled off to the hospital. The OIR Group does not mention that the officers expressed concern not about Barry's well-being, but about their hats being under Barry and his blood staining their uniforms.*-4
Interestingly, the PPB rejected OIR's recommendation (#17) that the Bureau discuss the implications of the ME or DA suggesting that a suspect killed by the police was a suicide victim. The Bureau claims they have no authority to influence either official. This, of course, is nonsense. Agreed, they should not try to influence decisions in individual cases, but they can open a dialogue about broad policy issues. To their credit, OIR strongly discourages officers from labeling officer involved shootings as suicides by stating putting the blame on the civilian could be "a way to obviate potential criminal culpability for the officers."
Another important theme the OIR Group raises is that in three of the cases, PPB Training Division officers called before the Grand Jury were asked to give an opinion about whether officers were within policy, and most of the time they gave that opinion even though the internal investigation wasn't yet complete. This led to Recommendation #25, suggesting a prohibition on such testimony. The PPB says they have created a policy to ensure this will not happen any more, but shirked responsibility by saying they cannot control what the District Attorney asks. Obviously, they can direct their officers how to answer that they have no opinion until the investigation is done.
Other alarming facts:
--At the behest of homicide Detectives, the Bureau's Behavioral Health Unit (BHU) used the pretext of a mental health welfare visit with Chase Peeples in the hospital to ask him questions about his being shot by police, even though he had invoked his Fifth Amendment right to silence with the Detectives. This led to Recommendation #11 not to let the BHU investigate criminal activity or shootings, as this is beyond its mission. The Bureau agreed and claims they would make that a policy within 30 days.
--When Sarah Michelle Brown refused to comply with police because she didn't believe they were real law enforcement, one officer pretended to be a dispatcher to talk with her on the phone. Although Brown was armed and allegedly fired her gun while police surrounded her, if she were being abused and needed to report it to 911 this trickery undercut her ability to do so.
--The medical technicians who attended to Richard Barry ignored a subpoena from IPR and were never interviewed for the investigation. This led to Recommendation #24 to ensure there are consequences for ignoring IPR.
--The lawyer representing officers in the John Elifritz shooting showed civilian cell phone footage to all of the involved officers before they were interviewed, prejudicing the evidence. OIR echoed a previous recommendation by suggesting deeper questions about whether the video changed officers' perception (#16) and showing any video to them after their initial interviews to see if that refreshed their memories (#24). However, they did not suggest prohibiting the lawyers from violating Bureau Communication Restriction Orders by sharing such video with their clients.
--The Training Division found that Officer David Staab strayed from training by shooting at Jesse Brockner without a plan or backup, but all other reviewers found Staab to be within policy. Remarkably, Staab was never interviewed for the criminal investigation, which never went to a Grand Jury, but voluntarily talked to federal investigators a month and a half after the incident.
--The Internal Affairs investigation into the case where officers shot at Michael Grubbe did not begin until 25 days after the incident.*-5 This is all the worse because the officers did not speak to homicide detectives and were never called before a Grand Jury because then-District Attorney Rod Underhill made a "no harm, no foul" call-- since Grubbe wasn't wounded, by the DA's logic no crime could have taken place.
On a related note, the other OIR recommendation rejected by the Bureau calls for officers to be interviewed by Internal Affairs before the end of their shift (#27). The PPB claims that they need time to process the scene, review witness statements and uncover evidence. A footnote in the Patrick Kimmons analysis says the officers who were interviewed within 24 hours of that shooting complained they did not have enough time to prepare (p. 76).
While OIR's recent attention to the Grand Jury process continues to be welcome, they still have not addressed the inherent conflict in the DA asking the same panel to consider both the questions of whether a surviving civilian committed a crime and whether officers violated the law by using deadly force. This happened in the Peeples and Brown cases as well as previous incidents reviewed by OIR.
OIR continues to suggest that the reviewers, and in particular the Police Review Board (PRB), continue to ask more questions even when a shooting seems to be within policy, in order to better influence future training and, perhaps, avoid further deadly force incidents.
Raising and unable to answer the question of why the City is still considered in full compliance with the US Department of Justice Agreement to use less force on people in mental health crisis, the OIR Group lists five of the seven people involved as having mental health issues (excluding Brockner and Kimmons). The updated table in the back of the Report, first published in 2019, now shows that 34 of the 57 people subjected to deadly force as reviewed by OIR had mental health issues, or 60%. As noted by PCW in our last analysis, the percentage after the DOJ Agreement was signed in late 2012 (now at 67%, 16 of 24 suspects) is higher than it was before the Bureau supposedly made a concerted effort to avoid force in such situations (55%, 18 of 33 cases in 2012 and earlier).
Below is an in-depth analysis of the Report, including further examples of the "cowboy mentality," various responses by the PPB that do not reflect reality, and the seeming contradictions in some of OIR's work. There are also other issues, some of which we have raised before, which fill out the analysis.
In every one of the seven cases reviewed this time, there are hints that the officers involved jumped into situations and used deadly force when other options were available. In most cases, the OIR Group implicitly raises proposed alternatives, though they overtly approve of the tragic shooting of John Elifritz (more in the "Contradictions" section). PCW will begin there.
As noted above, the officers who arrived at the City Teams Ministries building in April 2018 rushed into the meeting room, under the guise of protecting the 20-30 civilians in the room from Elifritz. However, Elifritz was only harming himself, cutting his own neck with a pocket knife. OIR notes that the surveillance video of the room shows that some people were reacting to him, including talking to him and moving chairs around as barriers, some left the room, but some were ignoring him. He was clearly not an imminent threat to the people there or the police, who hadn't entered the room. However, Officers Richard Bailey and Jason Damerville shouted a warning and fired "less lethal" rounds at Elifritz. This was the beginning of the escalation.
Seeing those had no effect, rather than assign a small cadre of officers to confront Elifritz, Sgt. Axthelm told them all to enter the room. They had no particular plan, but told investigators they "organically" lined up against two walls. Three cops with AR-15 rifles pointed them at Elifritz, while at least two officers held handguns and one a shotgun. Clearly this was no form of de- escalation. The OIR's analysis speaks to the officers' understandable desire to protect the community members, but does not take into account what the scene must have seemed like to Elifritz. In addition to the overwhelming police presence, multiple officers were shouting commands and a K-9 officer brought in his dog, which was barking. The scene was described as "chaotic."
OIR accounts for the officers breaking protocol by not having more than one person give commands, pointing out that the Training Division flagged the conundrum that cops are required to give a warning before shooting live or "less lethal" rounds. They do not make a formal recommendation to fix that problem, only repeating a 2019 suggestion that the Bureau should adopt recommendations from the Training Division.
In the 35 seconds police were in the room, first Bailey and Damerville shot more less lethals, then Elifritz took a few lumbering steps forward and six officers opened fire. The three AR-15 operators (Kameron Fender, Brad Nutting and Chad Phifer) shot a combined total of 7 rounds, the shotgun operator (Alexandru Martinuic) fired three times, Multnomah County Deputy Aaron Sieczkowski fired one handgun round, and Officer Andrew Polas shot six times from his handgun (more on Polas below). Of the 17 shots, nine hit Elifritz, while 20 strikes from bullets and shotgun pellets hit the walls and furniture (according to a footnote on p. 52).
The only concerns expressed in the Bureau's review process had nothing to do with the lack of a plan, the overwhelming presence, the lousy aim, or the use of deadly force, but rather that supervisors didn't appropriately assign tasks or make notifications. The Chief debriefed two supervisors for these shortcomings.
The OIR Group comes close to critiquing this case in discussing de-escalation and alternate options. They note that when IA asked about de-escalation, some officers said they did not have time, some cited the use of less lethal rounds and commands to drop the knife, and some claimed the show of force was de-escalation. Some said they were calm and tried to bond with Elifritz (in 35 seconds???) and offer solutions, while getting the civilians out. OIR points out that PPB's Use of Force policy says officers "shall take proactive steps to eliminate the immediacy of the threat." None of the above-listed concepts, except the clearly bogus claim about staying calm and bonding with Elifritz, are true forms of de-escalation. The officers were credited for waiting outside the double doors for 1.5 minutes before breaching the room.
OIR suggests that they could have tried using ballistic shields or other barriers to try approaching and apprehending Elifritz, or using Tasers rather than firearms. However, they also offered up the suggestion to "aggressively" pull the civilians out of the room, which seems both an unnecessary use of force and another form of escalation.
The review also gives a pass to Sgt. Axthelm for going up to Elifritz' inert, bloody body, rolling it over and kicking the knife away because Axthelm has Emergency Medical Technician training (as noted in a footnote on p. 52). Rolling an injured person and kicking at weapons seem more like movie-hero actions than medical care. Oh, and before Axthelm approached the body, he had Bailey and Damerville fire more less lethal rounds at Elifritz, an abuse of the injured/dead that we've repeatedly raised as a concern (for instance, in the Keaton Otis case).
OIR notes that the Training Division decided to use this incident to inform officers on handling "active shooters with knives." If their goal is to fill a person with fear and then with lead, then that training seems appropriate, otherwise it could just encourage more cowboy shoot-em-ups.
Grubbe was seen walking around the upscale Laurelhurst neighborhood in May 2017 with a replica gun in his hand. The first officer to come across him, Matthew Jacobson, got out of his car with a shotgun and fired at Grubbe, missing, he says, because he misjudged the height of the berm Grubbe stood on. The OIR Report mentions that 26 pellets struck a house and some penetrated to the inside. They do not mention that the City paid out $45,000 to the homeowners. Grubbe walked away and Jacobsen let backup officer Matthew Brown drive the car as Jacobsen and Officer Sara Fox walked alongside. They came upon Grubbe again hiding behind a boat on a trailer in someone's driveway and, although the narrative claims the boat obscured their vision, they fired at him when they claim he pointed his fake gun at them. They were also about 30 yards-- 1/3 of a football field-- away from Grubbe. The Report also fails to note the City paid the owner of the boat about $10,000.
Though the officers said they saw Grubbe "limp" away, none of the 15 shots fired (six by Jacobsen-- three buckshot and three pellets, three by Fox from her pistol, and six from Brown's pistol) hit him. The police set up a perimeter and, the Report also fails to note, brought in an armored vehicle after ordering the neighborhood on lockdown. OIR does call into question whether the PPB analyzed the failed tactic of trying to set up a perimeter, suggesting they make that routine in the future (Recommendation #3).
Meanwhile, supervising Sgt. James Mooney showed up and walked into the middle of an active scene, another cowboy-like move. The Police Review Board suggested he should have been briefed better before taking control.
However, despite the three officers filling up a neighborhood with bullets, the only other takeaway from this for the Bureau was that Jacobsen needed remedial training on aiming his shotgun, which he either voluntarily did (footnote on page 13) or was required to (p. 15). Apparently the remedial training didn't address stress or whether he was adequately assessing the backstop of his bullets. Oh, and the PPB is going to get new shotguns with better sights on them. What's a cowboy without his shotgun?
OIR recommended (#1) that when there's a "misperception of the target" officers should get training, including stress training. The PPB claims they started doing such training in 2019-- two years after the incident, as part of "active shooter" training. They also got a 360 degree virtual reality training simulator, so unfortunately they will have more focus on shooting and less on de- escalating.
Officer Staab had chased Brockner, along with another uniformed officer in a marked car, after an undercover detective investigating a bank robbery had identified him but fell back from the chase. Once the marked cars took over, the chase went up to 50 miles an hour on residential streets. PCW wonders why the OIR doesn't question whether the Detective's decision to fall back escalated the situation. Brockner crashed the car, and Staab was first on the scene. He claimed that because Brockner's vehicle was "jacked up" he had a hard time seeing, so he moved his position, saw Brockner bend down, then fired, wounding the suspect. There were only 45 seconds between the car crash and the fired shots. Brockner received three superficial wounds in his neck, while a nearby door and porch railing also got hit by the same three bullets.
The FBI, which was helping investigate the bank robbery, said they found a gun on the floor of Brockner's vehicle, but that does not reassure those of us who see law enforcement as a blue wall of silence which circles the wagons to protect their own. The Multnomah County District Attorney did not hold a Grand Jury in this case, claiming there was a "clear legal basis" for the shooting. The County's post-shooting plan, formulated in 2008, calls for a Grand Jury on each deadly force incident.
In addition to acting without knowing the exact location of the other uniformed officer (and the Detective), Staab failed to let them know he had used deadly force or that Brockner was wounded. The Training analysis called his behavior inconsistent with training and that it created an unnecessary risk-- the worst of four possible ratings for a review. Staab's supervisor did not want to call the action a violation of policy because they believed he was just trying to get a better view of the suspect.
Staab also used profanity in warning Brockner, but that was not reviewed by the Bureau despite being a possible policy violation.
OIR points out that Staab's claim that he had "no choice but to shoot" is not appropriate, as each decision needs to be analyzed for its appropriateness, alignment with policy, and legality. While nobody in the review process accepted his statement as fact, they also did not counsel him to avoid saying shootings are inevitable. OIR also notes that no questions were asked about the house that was hit-- the officer fired knowing the house was his backstop.
They ended up offering a debriefing to Staab for his choice of tactics (about where he positioned himself and the dangers of a foot pursuit) and failure to communicate, which is better than nothing but doesn't address that he almost killed a civilian by acting like a renegade cowboy.
For some reason, the OIR Group decided not to publish the name of shooting Officer Ryan Reagan's partner, even though Officer James Habkirk's name has been published by the PPB and the media. Habkirk said that when Chase Peeples, a bank robbery suspect who was reported over the radio to be unarmed, reached into his pocket, he would have shot just like Officer Reagan did. In fact, Habkrik said he had no doubt Peeples had a gun, even though it turned out he was holding a wallet.*-6 Reagan fired six shots, hitting Peeples three times, at a distance of 60 feet. Reagan agreed with Habkirk that regardless of the radio information, they should treat Peeples as if he were armed. None of the reviewers, nor the OIR Group, seem to wonder whether part of this assumption went along with a stereotype the officers may have had of an African American suspect.
During one interview, Habkirk's attorney asked him whether he was trained on the "Action/Reaction" principle, which PCW has repeatedly referred to as the "Superman theory" that a suspect can draw and use a gun faster than the officer's bullet can travel. Habkirk then relied on that theory in answering questions from Internal Affairs, and Reagan raised the concept in front of the Grand Jury. OIR's 2019 Report said not to rely on this theory for analysis but the review of Peeples' shooting happened before that Report came out; OIR repeated the admonition in Recommendation #9. The PPB says they are now only considering Action/Reaction as one factor in a shooting.
OIR wisely calls upon the Bureau to examine the risk assessment done by officers (Recommendation #6), noting that it was "problematic" not to account for Peeples having allegedly robbed the bank without a gun, thus most likely being unarmed. PCW is a bit concerned that OIR also notes that "there is always some risk presented during every encounter," since that could lead to many well-meaning grandmothers being thrown to the ground and cuffed. PPB's response says they incorporated risk assessment, including for pursuits and armed suspects, at their 2019-2020 in-service training; it is not directly addressing the issue at hand, which was for reviewers to examine officers' risk assessment during shooting incidents.
Both officers admitted that although they were patrolling the area looking for Peeples, they did not come up with a plan of what to do when they found him. OIR recommends (#10) that the PPB's reviewers examine decisions not to call or wait for backup. The PPB said that because there were two officers in the car, that was not an issue in this case.
Once other officers arrived to take Peeples into custody, Reagan used his patrol car to protect them from any gunfire (from the wallet). OIR wondered why the officer involved in the shooting would take action in the post-shooting tactics when it was not necessary, beyond which, moving the car meant contaminating the crime scene. They recommended (#7) that the Bureau consider whether other options exist that do not move evidence around. This is good foreshadowing for the next Report, which should include the Andre Gladen case, where an officer moved his own knife after claiming he killed Gladen for threatening him with that knife. The Bureau agreed to assess moved evidence in the future.
So, though one officer shot and wounded a man, another said he would have done so based on the firm knowledge of a fact that wasn't true, and one of the officers inserted himself into action inappropriately and disturbed evidence, there was no finding of misconduct of any kind in this case for John Wayne and Randolph Scott (aka Reagan and Habkirk).
-- Sarah Michelle Brown
Two officers, two supervisors, a K-9 officer and their dog found that Sarah Michelle Brown was holed up behind a closed door beneath a stairway at a house that had reported a burglary. Though the officers made a plan, that plan involved Sgt. Grant Smith and Officer Darrell Shaw prying open the door. The plan obviously didn't account for them seeing Brown holding a gun, as they shouted "gun" and jumped away. Shaw, who had holstered his weapon to take hold of the door, pulled it out again and fired 2-3 times. Over the next 20 minutes, Brown's hand came out of the door and went back in multiple times, sometimes pointing her gun at cops, sometimes not. When Shaw thought the gun was pointed at him, he fired 2-3 more times.
Officer Joseph Webber came up next to Shaw with an AR-15 rifle, when Brown's arm came out again, Webber fired at her hand three times. One round hit her hand, and she dropped the gun. (Note: PCW long ago stopped asking "why don't you just shoot the gun out of their hand" because the police said that only happens in the movies. Apparently that depends on the circumstances.) The OIR's narrative appears to have left out a few things, as they report that overall Webber fired his rifle 22 times, and Brown was also hit in the leg. While Brown reportedly shot her gun four times, this still feels like a cowboy situation.
Speaking of which, the Chief ordered a debrief for Sgt. Smith for taking a hands-on role at the scene when he pried open the door. OIR noted that tactic led to a "hasty and disorganized retreat," but not a reconsideration of their efforts to breach the door-- or an examination by the reviewers of that decision. In a very detailed recommendation about entering closed spaces (#13), they suggest reviewers examine such tactics. The Bureau says they started doing so and included emergency entrance training in the 2020 in-service.
-- Patrick Kimmons
Sgt. Gary Britt and Officer Jeffrey Livingston saw a group fighting in a parking lot. Patrick Kimmons apparently pulled out a gun, shooting and wounding two people in the crowd-- people who did not cooperate with the investigation of the police shooting. According to the Report, Kimmons was trying to run away from the scene and coincidentally came upon the two cops. Britt took out a gun and, according to the narrative, saw Kimmons put his own gun into his waistband, raising the question of whether there was an immediate threat at the time. He ordered Kimmons to put his hands up, claims Kimmons reached for his waistband, and fired; Livingston also fired. Kimmons moved past the officers, running away with his back turned, as they continued firing. He fell to the ground and died at the hospital. Britt fired 7 shots, Livingston fired 5, but only 9 of the bullets hit Kimmons. While in this case, the officers allegedly saw Kimmons commit assault with a firearm, it is still worth wondering whether they would have fired so many bullets if the suspect had been white. After all, the police did no harm to Jeremy Christian, who is white, even though he was still holding the knife he used to stab three people on a MAX train about one year earlier.
There is no discussion of where the other three bullets went or whether the other civilians were in danger. The Training Division called the officers' actions "sound and effective," not addressing the bullets that hit Kimmons in the back. OIR notes that the Police Review Board said he was running toward the officers, which is only part of the truth.*-7 Moreover, they note that one Board member said Kimmons received no wounds while on the ground, which is disproven by the Medical Examiner's records.*-8
OIR admonishes the police that a fleeing suspect can be a threat but it is not imminent, noting that the Training Division didn't assess the threat level for the entire incident. They add that the Commander did not conduct a deep analysis, but rather made a "simple, rote conclusion" that the officers and sergeants were all in policy.
And, along those lines, Sgt. Aaron Schmautz arrived on the scene and sort of took command-- but went to detain Kimmons, thus slipping out of his supervisory role. OIR says Schmautz also did not realize that Sgt. Britt had used his gun. The Review Board asked the Bureau to debrief Schmautz, again showing that the idea of not letting Sergeants get involved in deadly force incidents is now being more seriously considered.
Perhaps because he shot someone who at least at one point did not have their gun drawn, Sgt. Britt did not rely on the Action/Reaction principle, though Internal Affairs asked about it. However, a footnote says the DA did try to rely on that concept to justify the shooting (p. 73). In any case, this seems like another incident of "shoot first, don't even bother asking questions," going along with the other cowboy antics of the PPB.
Four Portland State University Public Safety officials had responded to calls about a man running into traffic, and were in the process of trying to handcuff Richard Barry while he was standing upright on the sidewalk when Portland Police arrived. PPB Officer Jared Abby said he saw Barry yelling and noted that the four PSU officers were breathing heavily (a strange observation). He and Officer James DeAnda each added to the two officers already holding each arm. The Report says Abby "decided" to take Barry to the ground, not addressing whether he coordinated or announced this plan. The cops somehow forced Barry to his knees, then onto his stomach.
Abby says he took "control" of Barry's head, but that Barry rubbed his face on the concrete causing abrasions. OIR does zero pushback on this outrageous claim, since the only reason Barry's head was on the pavement was that Abby was forcefully pressing it there. DeAnda said he kept his hands on Barry's back until a medical team arrived, saying he could feel Barry breathing. As noted above, it's clear that one of the PPB officers had his knee on Barry's shoulder. Barry was crying for help for a little while but stopped, likely in medical crisis, but Abby thought he was just "spent." Abby took off to wash the blood off his pants (and hands, the OIR doesn't note).
The medics mopped the blood off Barry's face, then in about five minutes declared he was in cardiac arrest. As noted above, the Medical Examiner said meth, cocaine and a heart disorder caused Barry's death, not abrasions or asphyxia. This completely ignores the stress that came from the struggle with police. Barry died within an hour.
The PSU officers' body camera footage did not capture everything the PPB officers did-- in part, OIR fails to note, because it fell to the ground for several minutes.*-9 Nonetheless, OIR essentially says there was no misconduct by the PPB and they could not be expected to make a plan since they joined a struggle already in progress. They also said they took Barry into custody with "minimal injury"-- uh, he died folks!-- and noted the officers didn't use "weapons or blows." We disagree with this assessment. In particular, it seems Abby was acting as the cowboy here, deciding to drop Barry to the ground, grinding his face into the pavement and then walking away to clean up the evidence. OIR in part relies on a witness who was skeptical of police saying the police were gentle, but it's likely they weren't close enough to see the blood on Barry's face, possibly not the knee on his back, and likely, like Abby, assumed Barry stopped yelling because he was tired, not dying.
Even though this case ended in death, the District Attorney did not hold a Grand Jury to question the officers' actions. OIR notes that the Commander's review of this incident was a "boilerplate" analysis with no comments; however, their Report also seems to let the cops off the hook. Incidentally, not only did the PSU officers fail to cooperate with the PPB investigation, but OIR could not find any evidence of them doing their own internal review.
In addition to a few instances above where the Portland Police didn't exactly respond to the recommendation made by the OIR Group, and the narratives which PCW has already debunked, there are other parts of their response to the Report which do not accurately reflect what is going on. If the Bureau's assertions were true, OIR Group would not have found the flaws in these investigations and made the recommendations.
--With regard to Recommendation #3, that the police should analyze failed tactics like the perimeter set up to find Michael Grubbe, the PPB said they are already doing so in their reviews. The claim is that subject experts review cases at the Training Division to put lessons learned into training. But that wasn't done in the Grubbe case.
--They assert that profanity use, such as Officer Staab used in shouting orders to Jesse Brockner, is reviewed per the Courtesy/Conduct Directive (Recommendation #4). But that wasn't done in the Brockner case.
--The Bureau claims that the "critical decision" model outlined in Standard Operating Procedure 7- 1 leads them to ask whether a plan that is (or is not) made is consistent with training (Recommendation #5). But that was not done in the Peeples case (among others).
--Responding to the fact that only two of the cases were completed in the US Department of Justice-ordered 180 day timeline, and the suggestion that they should examine holdups and then fix any problems (Recommendation #28 in "Common Themes"), the Bureau states such assessments are done per the Agreement. But that doesn't explain why there were bottlenecks at the Training Division, the Police Review Board, and twice in the Chief's Office. Those were problems that existed in 2014 when the DOJ Agreement kicked into effect and were still continuing at least four years later. The two cases completed within 180 days were the Kimmons and Barry cases. Not coincidentally, those were the cases OIR described as having "boiler plate" analysis and "rubber stamp findings."
--Regarding the lack of review of the use of the barking K9 in the Elifritz case and Recommendation #15 to make K9 use a regular part of deadly force analysis (repeating, OIR notes, a suggestion they made in 2015), the PPB claimed they have that review embedded in their protocols. Clearly those protocols weren't followed-- and there were no consequences.
PPB also evaded answering the questions raised in a few instances, possibly because they misunderstood the recommendations, but more likely they did not want to answer for their shortcomings.
--OIR asked them to review whether an officer getting involved in post-shooting actions, as in the Peeples case, did so out of necessity (Recommendation #8). The PPB's answer has to do with supervisors separating witnesses and treating the area as a crime scene.
--Particularly in the Kimmons case, OIR asks them to look at the threat levels throughout the incident, so that for instance if a suspect's back is to officers they recognize there's not a threat. The PPB response has to do with assessing the _risk_, which is not exactly the same as the _threat_. And, clearly as above, if it were being done OIR would not have made the suggestion.
While we're on the topic of the PPB being less than truthful, Sarah Michelle Brown was connected with the officer pretending to be a dispatcher after a Special Emergency Reaction Team robot brought her a cell phone. It's not clear how the phone connected to the on-scene officer rather than 911. One reason PCW finds this outrageous is that before Brad Morgan was shot in 2012, a dispatcher was engaged in a meaningful discussion with him, but when officers arrived that call ended and tragedy ensued. Similarly, a crisis negotiator was talking with Raymond Gwerder in 2005 about Gwerder's dog at the moment a police sniper bullet killed the despondent man.
PCW noticed a few thematic areas where OIR appears to contradict their own past or present advice.
---Sergeants should not get involved in tactics
OIR has stated repeatedly that supervisors should avoid getting directly involved in incidents, including applauding the PPB twice in this Report for taking corrective action when this happened. But at least twice in this Report-- with Sgt. Axthelm rolling over John Elifritz to kick his knife away and with Sgt. Britt shooting at Patrick Kimmons-- they seem to have no problem.
---Officers need to make a plan
Again, a basic tenet the OIR Group hammers home to the Bureau woven through the Report is that officers need to make a plan so they can be on the same page when approaching high-risk situations. In the Elifritz case, officers said they "organically" moved into location when entering the room en masse. Six officers including one from another jurisdiction shot a man to death who clearly needed help, not a hail of bullets. OIR generally praised the officers' actions with the excuse that they had no time to plan because civilians were in the room. It seems to PCW that the cops posed more of a danger to those civilians than Mr. Elifritz.
And as noted above, the PPB officers who showed up in the middle of PSU cops trying to arrest Richard Barry are not reported to have said "where do you need us?" "what can we do to help?" or even "I'm planning to take this guy to the ground." They just jumped in and acted. OIR called out the Commander for not doing a more thorough analysis of this case but they are also guilty of that problem.
--Raise concerns about officers who use deadly force more than once
While the OIR Group does note that Sgt. Britt used deadly force in 2012, and that they questioned his decision making then, they did not question his decision making in the Kimmons case. They also did not note that Officer Polas was one of three officers who killed Keaton Otis in 2010 before being one of six who killed John Elifritz, nor that Darrell Shaw was involved in two shootings before involvement in the wounding of Sarah Michelle Brown. While Shaw's other shootings were before the OIR Group contracted with the City, they should know he helped kill Vernon Allen in 2005 and wound Joaquin Vasquez in 2000.*-10
--Don't treat someone as if they have a gun then say you had to shoot first
OIR repeats their opposition to officers falling back on the "Superman theory," which is particularly important, we think, when the officers already have their guns drawn. The suspect can't "get the drop" on the officer if they have to draw, aim and shoot when the officers are already pointing a gun at them.
So it's interesting that they rightly criticize Officers Reagan and Habkirk for shooting/wanting to shoot Chase Peeples when dispatch said he was not armed, then make a whole recommendation about finding ways to approach known or possibly armed suspects in the Brown case (#14).
Other issues PCW has with OIR have also persisted.
--They repeat references in the body text and the appendix listing all 57 cases which take the Medical Examiner's findings as truth. It's easy enough to say the ME "claims," for instance, that Craig Boehler died of smoke inhalation, not the bullets that hit him, without saying that is what happened.
--As noted above, OIR talked about race in the 2019 Report but not at all in the 2020 Report. Thus there is no analysis that the statistic from last time showing 26% of people subjected to deadly force were African American (13 of 50) has not changed (15 of 57 is also 26%) in a city that is 6% Black.
As noted above, the OIR Group rightly calls out the PPB for allowing its officers to offer opinions about whether officers followed policy or training during Grand Jury proceedings that take place before investigations are completed.
Though they should be aware of it, OIR did not address that the same Grand Jury panels which considered whether Chase Peeples and Sarah Michelle Brown should be indicted for crimes cleared the officers of criminal wrongdoing. It's clearly a conflict of interest for a jury in this society to be told that a "bad guy" was shot at by the police and then to think about criminally charging the cops for attempted homicide (or another crime). Separate panels need to be held. On that note, OIR includes that fact that Peeples was found guilty of robbery and Brown was indicted for attempted murder, neither of which are relevant to whether the officers, at the time they used their weapons, were justified.
PCW identified other concerns OIR did not address, perhaps since they could be considered outside the scope of OIR's purview.
For instance, we continue to be concerned that the Senate Bill 111 plan from 2008 in which the District Attorney agreed to hold Grand Juries for all deadly force incidents is only being applied discretionally. In the Michael Grubbe case, it certainly would have been considered criminal activity if a few civilians fired 15 rounds and bullet holes riddled a neighborhood, even if nobody was hurt. Why not hold police to the same standard?
In the Jesse Brockner case, the DA decided on his own that there was legal justification for the shooting, probably based on the FBI's assertion that there was a gun in Brockner's vehicle. However, that does not mean the officer's shooting was legal or proper. The OIR Report indicates the undercover detective who was following Brockner did not lead the car chase because he was "limited" by being undercover. The PPB does not have any of the background documents on this case posted to the Officer Involved Shootings area of their website. Could it be that they and the DA conspired not to hold a Grand Jury to protect the identity of the undercover cop?
The DA also did not hold a Grand Jury for the various officers in the Richard Barry case, which not only lets the PPB off the hook for possible criminal conduct but means the PSU officers apparently were never interviewed by anyone in that incident.
In another break from reality, the PPB's rejection of the OIR recommendation (#17) on talking to the DA about not using the concept of "suicide by cop," they claim that every case is heard by a Grand Jury. Given that three cases just in this Report did not receive that due process, the PPB needs to do some fact checking and soul searching.
The DA also managed to deter the PPB from gathering evidence in the Peeples case about his injuries and whether he was intoxicated in some way. The DA told the police they did not need that information for the criminal trial (this is revealed in a footnote on p. 36). OIR points out that for the administrative investigation, Internal Affairs could have gotten a medical waiver or warrant. This led to Recommendation #12 to get medical evidence even if the suspect is not killed. The Bureau agreed to add that to their procedures within 30 days.
Side notes about the criminal justice system: While it's great that OIR suggests the City meet with the DA and the County about compassionate solutions for people with mental health issues who are arrested and released (Recommendation #2), and that the Bureau calls for housing as one solution, we have to be clear that the mental health system did not fire 15 bullets at Michael Grubbe. Nor did it kill Richard Barry and John Elifritz, or wound Sarah Michelle Brown or Chase Peeples. The police did all that. We're thankful that OIR raised the question of how the PPB can still be found in compliance with the US DOJ Agreement with all these deadly force incidents against people in mental health crisis.
Another example of possible violations of the US DOJ Agreement is the fact that only two of the seven cases were completed in the mandated 180 days. The Brockner case wasn't closed out until day 342, nearly twice the allotted time. The Brown case wasn't done until 72 days late (10 weeks, not the nine weeks mentioned by OIR on p. 18). The Elifritz case took almost as long-- 250 days compared to 252-- including three months to schedule the Police Review Board. The Grubbe case took 242 days, and the Peeples case took 239 days, including three and a half months lingering at the Training Division.
Also buried in the Report is the fact that Internal Affairs spent 15 hours interviewing the officers in the Elifritz case beginning 37 hours after the incident. In other words, those who were interviewed in the last four hours were outside the 48 hour time limit imposed by the Bureau's Directive. This particular aspect of the investigations was imposed by a rare vote of City Council in 2017, so there should have been consequences for the violation.
In the interest of keeping this analysis relatively short, PCW is leaving out quite a few OIR recommendations and tidbits of information. However, these points rose to the top of the honorable mention list.
--The Old "Suicide" Argument: Though nobody at the PPB referred to Elifritz's death as a "suicide," the District Attorney pressed the Medical Examiner to offer an opinion about the possibility Elifritz wanted to end his own life by provoking police. In an unusual-- but apparently consistent?-- response, the ME said that because there was no suicide note or other indication (unlike in the Michael Johnson case), they did not consider that a factor. OIR strongly
--Mental Health Crises Don't Take Weekends Off: The Report praises the first officers who encountered John Elifritz many hours before the fatal confrontation for referring him to the Behavioral Health Unit. However, since the BHU's service arm (the Behavioral Health Response Team) only works Monday to Friday, and the incident happened on a weekend, there was no way to get him immediate help. PCW continues to encourage the Bureau that if they're staying in the business of attending to mental health crises, they need to make sure support is available 24/7.
--Witnesses Shielded/Architectural Advantages: When the officers were anxious to clear City Team Ministries of civilians, while they may have had concerns about safety, there's also the question of whether they were trying to limit witnesses to the shooting of Elifritz. Also, the room in question has half-walls surrounding a descending staircase; those walls were a natural barrier that the police did not seem to consider when they began their confrontation.
--That's a Real Knife?: It's not clear why it is important to OIR that Elifritz's folding knife had a 2.5 inch blade (p 52). Does that mean it was particularly dangerous or that it was not as dangerous as a longer blade?
--Can't Open a Paint Can: PCW continues to discourage all persons discussing police firearms, Tasers, chemical agents, "less lethals" and batons from referring to them as "tools," since they are all designed and used as weapons. Minimizing their actual and potential lethality by using the word "tools" (as OIR does on pp. 41, 56, 60, and 85 and the PPB does referring to K-9 police dogs) is a disservice to those being subjected to the violence.
--Assault Rifle Dangers: The Group does refer to AR-15 rifles as "weapons" on p. 56, but says they were a good choice in the Elifritz shooting as they are "unlikely to penetrate" beyond hitting the suspect. It is our understanding that AR-15 rounds can travel the length of a football field even after hitting a target.
--Stopping Suspects with Knives: OIR cautions community members that knives aren't easily overpowered like in the movies. However, they note that the PPB is looking into ballistic vests that can stop knives (it's not clear why these aren't already in use), poles used by European police, and US technology designed to wrap around a person. All 6 people shot at by the PPB in 2019 had edged weapons, not guns.
--Video Policy and Quick Investigations: With regard to how video and media can contaminate investigations, OIR suggests conducting all interviews before officers go off duty (Recommendation #27) is a better solution than prohibiting officers from reviewing videos or consuming news. PCW suggests the Bureau should do both. For the record, the PPB agreed to add more questioning about whether viewing video affected an officer's perceptions to their checklist (in response to Recommendation #16). And, surprisingly, the officers in the Kimmons case did not look at the surveillance video before being interviewed; however, OIR noted they should have then been asked to watch it and see if it changed their perceptions (Recommendation #21).*-11
--Meet the Family: We're actually glad in a way that the PPB only partially agreed with the OIR recommendation (#20) to meet with every family and hold community meetings. The PPB recognizes that every case is unique and that it's sometimes not appropriate to meet with families, particularly right away. Neither group notes that maybe the family doesn't want to hear from the cops whose colleague killed their loved one. Furthermore, the OIR recommendation specifically says the PPB should explain the investigation process at these meetings, which usually ends up meaning the police take up all the given time and leave no time to listen or engage in a real dialogue.
--Police are Not Doctors, Still: In the Barry case, the OIR Group notes the Police Review Board requested training about excited delirium-- a recommendation which could not pass due to a lack of quorum. Rather than note that excited delirium is a bogus, non-medical term used by police to justify deaths in custody,*-12 OIR makes an informal recommendation about fixing the PRB's ability to make recommendations.
--Outside Agencies: PCW and OIR have both repeatedly brought up concerns about how the Bureau has problems investigating when other agencies are involved in deadly force incidents. OIR suggests (in a footnote on p. 82) that the PPB can shield those other officers' answers from use in the criminal proceedings, as they do for their own officers. This is an idea worth a formal recommendation.
Portland Copwatch is again deeply concerned that the issue of officer involved deadly force incidents is being treated as a closed-loop discussion among the contractors, the Bureau and City Council. At the time we are completing this analysis, there is no indication that OIR Group will be meeting with the community in a formal way prior to the Council hearing, nor that Council will take contemporaneous testimony. Last year PCW managed to get the Mayor to reluctantly allow Donna Hayes, the grandmother of Quanice Hayes, to testify since the Report directly affected her family. These incidents affect the entire community and there was no reason to hold the Report for six months, particularly with the demands in the streets to stop killing Black people and to end unnecessary police violence in general. Community input prior to the finalization of the Report and its recommendations could also improve the messages being sent to the police, especially given that the contractors do not live in Portland.
As the people gear up to vote on a new oversight system, it's important to repeat our note from 2019 that "if a civilian body tasked with reviewing the deadly force cases at the time they happened used the same expertise and lenses as the OIR Group, there likely would be more examples of officers being found out of policy and perhaps even disciplined."
For lack of the new system, Copwatch again urges the Citizen Review Committee (CRC) to get involved in ensuring the recommendations are appropriate for Portland and are being implemented properly, as required under City Code.*-12 The fact that PCW appears to be the only community group engaging in written analysis of these Reports means more community engagement is needed.
*1- Preceded by the Police Assessment Resource Center (PARC), OIR Group is limited from
reviewing the appropriateness of officer conduct by the City Code creating the "Independent"
Police Review (City Code 3.21. 020[U]).
*2- To be fair, the rejections were made on March 25 by former Chief Jami Resch, but still the PPB
could have updated their response in the interim.
*3- The Police Review Board report of the incident indicates the officer also washed his hands. (
https://www.portlandoregon.gov/police/article/742497 at page 67).
*4- See https://thepacificsentinel.com/richard-barry-chronicle-of-a-death-as-told/
*5- PCW previously published this info about the long delayed interviews in its analysis of the
September 2018 Police Review Board report
*6- OIR mentions Habkirk's "no doubt" statement in a footnote on p. 33.
*7- PCW noted the PRB's missing the shots fired to Kimmons' back in our analysis of the
September 2019 Police Review Board report
*8- We kept his untruth in the Cowboy section, rather than in the PPB divergence from reality
section, because there's no way to know which PRB member made this statement; it could have
been a civilian member or the IPR.
*9- PCW has a neutral stance on the use of body cameras. While the footage in this case is telling,
it is not as useful as a third party-- a "copwatcher"-- recording the officers from nearby.
*10- In fact Shaw is one of only three officers Portland Copwatch has tracked who has been
involved in three deadly force incidents; see http://www.portlandcopwatch.org/deadlyforcepdx.html.
*11- Since this Report was completed before the City's budget was adopted in June, Chief Resch
wrote that the PPB was negotiating with the Police Association on a policy about body cameras,
which were cut by Council. It's not clear why the policy on body cameras should affect policies on
watching any video.
*12- City Code 3.21.070[L].
Shootings and deaths page
Portland Copwatch home page
Peace and Justice Works home page
Posted September 29, 2020