ANALYSIS: Police Review Board Report 9/19: Bait & Switch Discipline, Deadly Force Immu nity , and Coercion
Table of contents
From: Portland Copwatch
To: Christopher Paille, Police Review Board Coordinator
cc: IPR Director Ross Caldwell
October 11, 2019
Mr. Paille and Chief Outlaw:
Portland Copwatch has reviewed the September 2019 Police Review Board (PRB) Report which
was published sometime around September 23, and found more questionable police behavior,
officers being let off for use of deadly force, and some troubling behind-the-scenes maneuvering of
discipline. As with the December 2018 report, there are several officers who are (or were) in
supervisory positions who "should have known better." And as with just about every PRB report
created since 2014, there's a DUII case. We testified to City Council twice in September noting the
first PRB report of the two required by Code had not come out yet; the PDF is time stamped five
days after our testimony on September 18.*-1 The report can be found
The new Report covers 17 cases heard between December 2016 and April 2019.*-2 The Portland Police Bureau (PPB) should explain why it takes so long, including a span of almost three years, to release these reports. If the discipline is subject to a grievance, that should be part of the report as well as the outcome of the grievance. The reports continue to be ridiculously redacted-- in addition to officer names, the dates, locations, and genders of people involved are generally blacked out. Revealing the facts around discipline proceedings beyond the PRB's recommendations and the Chief's decisions is not breaching confidentiality, but rather promoting the transparency the Bureau claims to support.
One unusually long summary report details the back and forth among Board members and seems to corroborate previous descriptions of PRB meetings including coercive input from Bureau members trying to dissuade dissent. Several questions are sidelined with the explanation that "officers do that all the time," not allowing the discussion to focus on (a) whether the behavior in question follows policy or training or (b) whether the behavior should be prohibited in the future.
Of the 17 cases, Portland Copwatch (PCW) counts five-and-a-half "B" cases-- "Bureau only," six "C" cases-- involving a civilian complainant, and five-and-a-half cases we label "B/C" because they clearly involved community members but the PPB did not treat them as "C" cases. This has always been true for deadly force incidents, which make up four of the cases: The shooting of Sarah Michelle Brown in March 2018 (B/C 2), the shooting deaths of John Elifritz in April 2018 (B/C 3) and Patrick Kimmons in September 2018 (B/C 4), and the death in custody of Richard Barry in November 2018 (B/C 5). While all of the summaries have a distant and clinical feel to them, the facts surrounding Mr. Elifritz's case in which multiple officers shot a man in clear mental distress and Mr. Barry's case, where cops joked while he lay dying, raise concerns about how the PRB reviews ignore the humanity of the "suspects." One other B/C case we labeled B/C1 involves an officer who seriously messed up on a few incidents involving domestic violence and restraining orders; it is bizarre the Bureau labeled this a "B" case. The last half-case is one allegation in a broader review of what appears to be a serial sexual harasser officer (case B2) who tested a Taser on themselves in front of community members (which we label B/C 1a though it's in the same summary).
As usual, the Bureau found no wrongdoing for any officer involved in the deadly force incidents, offering only "debriefings" regarding one major issue-- whether supervising Sergeants should get involved in tactical operations-- and a few minor issues.
The DUII case is that of Commander Steve Jones, who broke a telephone pole in June 2018 in a crash, destroying his police cruiser and luckily, as noted, not hurting anyone (B5). Jones resigned before being terminated per the Board's recommendation.
One of the most troubling cases involves what appears to be some administrative sleight-of-hand by the Chief. While Sgt. Erin Smith was found to have violated three separate policies when threatening to arrest activist Benjamin Kerensa in November 2016, only one of those allegations was considered by the Board (C5). The Citizen Review Committee (CRC) recommended changing the PRB's "Not Sustained" (insufficient evidence) recommendation to "Sustain" that Smith had lied when telling Kerensa he could not video-record police activity-- something which is protected by state law. Rather than find Smith violated the Truthfulness Directive in question, which would have led to an automatic firing, the Chief changed the finding to a "Performance Issue" and gave Smith one day off. The other two findings-- one of which came from former PPB Captain Mike Crebs, the other of which the Chief also Sustained at the request of CRC-- had to do with Smith giving out false information and making a threat.
At least two other cases date back to 2016:*-3 An officer who falsely claimed to have had his police car hit by a civilian's car and was fired (B1) and the serial harasser, whose off-duty actions pursuing colleagues were "Exonerated" but an on-duty kiss of another cop (B2) and the Taser spark (B/C 1a) led to two weeks off without pay (though the Board recommended three weeks off).
Receiving a week off without pay were a supervisor who sang an inappropriate song with officers from other jurisdictions nearby (B3), the officer who fouled up the Domestic Violence investigations (B/C 1), and an officer who ignored a former colleague's inability to pass a firearm test to get the other officer re-hired (B6). This last officer retired before facing punishment.
Two cops received two days off without pay: one who ignored a suspect's request to talk to a lawyer while the officer delivered "Miranda rights"-- though the Board had only recommended one day off (C3), the other a supervisor who had a relationship with a subordinate for two years and failed to report it (B4).
Three officers were given one day off as punishment: (1) one who contacted juveniles late at night over social media and failed to document a sexual assault (C4), (2) Sgt. Smith as noted above (C5), and (3) an officer who used pepper spray inappropriately during a protest (C2), but only because the Chief agreed with the minority of three members of the PRB rather than the majority four who asked for a "Not Sustained" finding.
Officer Jimmy Harrison, Jr. was given the minor discipline of "Command Counseling" despite facing multiple allegations including taking car keys from a person he suspected had been driving drunk but not giving them a receipt or documenting the seizure (C6).
Other than the four deadly force cases, the only incident which led to no disciplinary findings was an allegation of excessive force using less lethal weapons during a protest on February 20, 2017-- where a different demonstrator's nose was famously broken (C1).
PCW's numbers refer to each kind of case in chronological order throughout the Report.
In the December 2018 report, one out of 15 officers were fired; this time it was one (B1) out of 24.*-4 As noted above, one officer resigned (B5) and one retired (B6).
Chief Outlaw did step in to increase accountability in several cases: her finding in the pepper spray case (C2), where even those Board members who found misconduct only recommended low-level discipline but the Chief gave the officer one day off; the Miranda warnings case, which she bumped up from one day to two days because the officer had previous Sustained findings (C3); and adding debriefings for officers involved in the Brown (B/C 2) and Kimmons (B/C 4) shootings. The Chief lowered the proposed discipline for the sexual harasser from three weeks off to two weeks after changing a "Sustained" finding about violating the chain of command to "Not Sustained" (B2). The PRB report indicates the Chief changed the discipline from level "B" with aggravating circumstances to level "C" with no aggravating circumstances for the supervisor who failed to report dating their underling (B4); the technical change didn't result in a change to the outcome.
Overall the Board considered 76 allegations and found 24 Sustained (one of which the Chief changed to Not Sustained), 33 Exonerated/In Policy, and 19 Not Sustained (one of which was changed to Exonerated after further investigation of case C1 about the less lethal weapon, another which was sustained by CRC and then the Chief in cases C2 about pepper spray and C5 about lying). This may be the lowest "Sustain" rate yet for a PRB report: 32%, which is still much higher than most misconduct investigations simply because most incidents are reported to PRB when a supervisor thinks the officers violated policy to begin with. That was true for eight of the 17 cases. The four deadly force incidents were automatically sent to the PRB. The other five were due to someone "controverting" the findings: the "Independent" Police Review (IPR) in case C1, an Assistant Chief in case B4, Internal Affairs in case C6, and all three entities in cases C2 and C5.
The PRB reports continue to be woefully inadequate to inform the community about what is going on in the behind-closed-doors hearings, reflected in two-to-eight page documents. As noted in our December 2018 analysis, the summaries do not always list how many members of the Board were seated, and in several cases, fewer than the total number present voted with no explanation. Five people sit on "normal" PRBs to consider discipline and findings in lower-level cases, while seven sit for deadly force and other serious incidents. Notably, there are three PPB members on regular PRBs and four on full ones, giving police the majority vote in all cases. Too many votes are reported as "unanimous" with no number given, though split votes in the same cases hint at how many voting members were present. In three of the four deadly force cases, there are votes without totals and a number of votes totalling less than the requisite seven members. In the Brown shooting (B/C 2), the first two votes show 7-0 unanimous votes but the remaining five only have six votes total. In the Elifritz case (B/C 3), the votes are 7-0 until the Board discusses supervision and post- shooting actions, when again only six people vote. In the in-custody death of Mr. Barry (B/C 5), seven of eight votes are simply listed as "unanimous" and one about a supervisor's performance shows a 5-1 split. All nine votes in the Domestic Violence case (B/C 1) and the one in the song- singing case (B3) only show four people voting. We repeat here our December 2018 recommendation: "PCW continues to urge the Bureau to be clear how many voting members take part and why there is a deviation from the requisite five or seven votes."
Also along the lines of the inadequacy of the PRB reports, we return now to our game of "Police Review Board Report Mad Libs." This time we're filling in serious guesses to the blank spots. The song-singing case (B3) says that "Employee sang the song '---blank---' during the ---blank blank blank blank--- at --blank blank---." Here's our guess: [The Lieutenant] sang the song [Camptown Races] during the [regional crowd control training] at [North Precinct]. We welcome any offer to tell us how many blanks we got correct.
Once again, facilitator Bridger Wineman's eight summaries have the lowest number of redactions because he uses the fewest pronouns and finds ways to avoid putting non-public information in the narratives. While PCW still urges there to be less secrecy-- especially in deadly force cases and incidents like Commander Jones' car crash (B5-- which is detailed on the PPB's own news release site*-5)-- the reports would all read better with fewer blackouts. That said, someone at PPB blacked out the date and time, location of the collision, and the _vehicle type_ in the Jones case. We previously suggested the Bureau consider using the pronoun "they" which is now broadly acceptable to apply to one person, rather than blacking out what is usually a "he, him or his" in the PRB reports (since only about 16% of sworn personnel are female). While the Bureau now regularly prints the dates of deadly force incidents (which is helpful), other information--sometimes including what day the hearings were held-- is not always included in the summaries (though the cover memo provides that information).
The report would also benefit from having the cover memo summaries attached as the last page of each report. Those summaries reveal the final outcome of the discipline in each case. They also previously included information about what happened to the many, many recommendations made by the PRB. Considering the OIR Group made a formal comment in its 2019 deadly force report about the lack of tracking PRB's suggestions,*-6 it is alarming that the minimally provided previous information about what branch of the Bureau was looking into the recommendations is no longer present. The cover memo could also benefit from listing the proposed and final discipline in the narratives; the Sgt. Smith case says Chief Outlaw found the conduct was Category C but the meaning of that-- the one day suspension-- is in another column.
Finally, PCW sadly must continue urging the Bureau and City Council to open up the process
around the PRB in any or all of the following ways:
In addition to the emotionally disconnected way the Board discusses people being shot or killed by the police, or perhaps as a corollary to it, the summary reports on deadly force incidents show officers' narratives are treated as gospel with no deep analysis. The fact that the shooting cases all appear with the suspects' names, and in two cases, the officers' names, on the Bureau's Deadly Force web page ( https://www.portlandoregon.gov/police/52175 ), and that such information will eventually be published by the City once the OIR Group reviews these incidents, makes it even more ridiculous that the PRB reports don't identify the victims or officers. Part of the dryness comes from referring to the victims here as the "subjects" rather than by their name.
(B/C 2) In the case of Sarah Brown, information beyond the PRB report is limited because this was the only one of the four incidents in which the suspect did not die. Therefore the Bureau's web page narrative does not include grand jury transcripts or PPB investigative files.
Brown allegedly shot at Officers Darrell Shaw and Joseph Webber on March 8, 2018, prompting them to return fire. The Board found the shooting "reasonable and appropriate given circumstances, including the short amount in which events unfolded [sic]"*-7 The summary claims the Board "said [Officer 1] appropriately issued commands and provided verbal warning before using deadly force." But only three people can say that for sure: the two officers and the woman who was shot. Was Brown given the chance to testify about whether commands and warnings were given? The Board similarly excused Officer 2 because he "tried to take cover and provide time for [Brown] to respond to commands... appropriate as other de-escalation tactics were used." But there is no description of those de-escalation tactics. If it is Officer 1's commands and warnings, we would note the Compliance Officer/Community Liaison's analysis considers such "command and control" orders are not de-escalation. The Board further suggests "a round from [Officer 2]'s firearm is likely what was successful at disarming the subject." We were dissuaded of asking cops to shoot the gun out of a suspect's hand very early in Portland Copwatch's now 27-year existence. Regardless of these points, it is curious that both officers were found in policy even though two members suggested a debrief for one of the supervisors suggesting the "response might have been improved slightly to ensure all officers were available prior to firing on the subject."
One Board member also said that another supervisor "did a fantastic job changing from a supervisor's role to a negotiator," praising their communication skills to resolve the situation, which raises the questions (a) whether that negotiation could have been done prior to the gunplay, and (b) whether this means the supervisor was engaged in tactical operations, something the OIR Group and the Board itself (see case B/C 4) have noted goes against best practices.
The Oregonian article on this incident pointed out Shaw was also involved in a non-fatal shooting in 2000, fatally shot an African American man who was houseless in 2005, was cited by another paper in 2006 for having the most use-of-force cases resulting in community member hospitalization, and cost the city $110,000 in 2014 for helping other officers beat a college student. Too bad the Board can consider previous discipline when recommending outcomes for Sustained cases, but not histories like this to see if officers are prone to violence.
(B/C 3) While we have copious amounts of information on the April 8, 2018 killing of John Elifritz, it is not immediately clear which officers (identified in the report as number 6, 7, 8, 9 and 10) are which; the cops were Brad Nutting, Kameron Fender, Chad Phifer, Alexander Martiniuc and Andrew Polas. Polas was one of the officers who collectively fired 32 rounds at Keaton Otis in 2010.
Elifritz had encountered officers previously in the day, but it's not clear from the PRB report whether any of the on-scene officers knew this; there's a reference to the supervisor (presumably Sgt. Roger Axthelm) having "reasonable cause to have officers enter the building based on [Elifritz]'s earlier suspected actions and the current threat posed." Three Board members also say the Sergeant worked to "minimize the use of force." Three _other_ members think the Sergeant should have received a debriefing to have been "more assertive as a scene supervisor and detailed the tasks assigned to officers," though they doubted it would have changed what happened. The Board also noted that Axthelm himself approached Elifritz to provide medical aid, recommending a debriefing in a 5-1 vote to point out that action took him away from his supervisory duties. The Oregonian, incidentally, cites Axthelm telling the phalanx of cops to "push in, push in" to the relatively small religious-based houseless shelter where an Alcoholics Anonymous meeting was taking place. Video shows that Elifritz was on the other side of the room from most of the other people, and the mass police entry seems to have escalated the situation unnecessarily-- but none of the Board members seemed to think so.
Rather, they praised the officers for "attempt[ing] to de-escalate" even though Elifritz was shot and killed 37 seconds after police entered the space. There is no discussion of whether the fusillade of at least 15 bullets in a small space posed a risk of injury to the many civilians still in the room, or the officers themselves.
Two other supervisors, called "Employee #2 & #3" here, are called out for a debriefing to improve "communications about the provision of required notifications," which is cop-speak for making sure officers contacted their supervisors, IPR, homicide, the DA and the Police Association following the shooting. The Board unanimously (well, the six people who voted out of the seven originally present) asked for a debriefing for #3, while only two of six asked to debrief #2. It's not clear who wasn't notified in this case.
It's also not clear whether Axthelm received a debriefing-- the report cover memo says Chief Outlaw "agreed" with the board but the recommended debrief had a 3-3 split vote. While the Brown and Kimmons cases specifically mention debriefs, this case does not.
PCW's summary here gets back to the lack of humanity we found in the PRB's analysis: By focusing on _the Board's_ words, we haven't yet noted that Elifritz was clearly in mental health crisis, had cut himself in the neck with a knife, and likely could have been contained by a few officers entering to evacuate the other civilians while other cops continued to push chairs into the half of the room where Elifritz was located. The AA members had started doing this.
This was an unusual incident in that at least one witness made and released a video on his cell phone. The Bureau edited together three surveillance videos and released the result in what PCW thinks was an attempt to show Elifritz posed a danger. Instead, the videos show that too many cops rushed in too quickly, then ushered the witnesses out after Elifritz had been shot dead, perhaps to keep them from witnessing any further questionable police actions. It's incredibly difficult to watch a human being lose their life on video-- especially at the hands of people whose salaries the public pays. The Board recommended reviewing the timeframe for releasing such video-- but it's not clear whether their intent is to get it out sooner or later (this video wasn't published until about seven weeks after the shooting).
The Board also recommended seeing how "active shooter" protocols apply to someone with a weapon other than a gun (not noting that in this case Elifritz was more of a threat to himself than others), and to develop a checklist to be sure the notifications listed above are made, with a duplicate list at the 911 call center.
(B/C 4) The summary report in the death of Patrick Kimmons on September 30, 2018 has a slightly longer narrative than usual, perhaps because it was the first report for new facilitator Adrienne DeDona of JLA Public Involvement. Regardless, it suffers from the same issues as other PRB reports, taking the officers' narrative as factual and not thinking about the person who died as a human being-- here Kimmons is called "Suspect 1."
The timeline of exactly what happened is muddied in the report; previous narratives have said that Kimmons had shot two people and then the officers came upon him carrying a weapon, Kimmons ran toward them but then away, and that's when the officers fired. It's been said that Kimmons was shot in the back, furthering this version of events. However, the PRB report says one Board member stated Kimmons "was running toward and not away from the officers," with someone else saying since no bullets hit him after he fell to the ground, the officers followed their training to "halt shooting once the threat has ceased." Or, the bullets missed him? In an example of the coercive dialogue we noted above, one Board member responded to a question about whether officers may have accidentally put bystanders in harm's way (not looking at their "backstop")*-8 by saying "officers are trained to be very aware of their surroundings as soon as they exit their vehicle." This doesn't answer whether officers Gary Britt and Jeffrey Livingston took time to think about where their bullets might land on this particular occasion.
A follow up question about civilians who were hiding behind cars led to a Board member saying "there were no individuals downrange of [Britt and Livingston] when they began firing." There is also video of this incident and it's not clear how officers could have been sure of that from their vantage point on that night.
The Board also examined Officer #1's actions regarding planning and supervision, which included calling for backup and turning on the patrol car's lights "in an effort to de-escalate and disperse the group in the parking lot." When a Board member asked about whether Officer 1 should have had someone with him, another officer responded that Officer 1 acted appropriately and that cops don't necessarily travel in pairs or teams. Ultimately two of the seven Board members suggested Officer 1 should have radioed in that he was taking the role of supervisor. Chief Outlaw agreed to debrief on that issue.
A sergeant (Officer #4) who arrived on-scene after the shooting told other officers to talk to people in a nearby car while he (or she) helped get medical aid to Kimmons. One Board member suggested a debriefing since Officer 4 got directly involved rather than continuing to supervise, a recurring theme here. Even though there was no recommendation about another sergeant (Officer #3), the cover memo says Chief Outlaw asked that they both be given debriefings.
The theme of sergeants getting directly involved led to a unanimous recommendation from the seven board members for the Training Division to "reinforce" that supervisors should be hands-off "except in circumstance where non-engagement would be detrimental to the safe management of the incident." This hearing was held on February 27, 2019, a few weeks after the OIR Group's report repeated a similar recommendation.
In this case, the Board also discussed the release of video evidence, but it is fairly clear they meant for it to be released sooner to "resolve any misconceived notions of misconduct or unjustified police action and strengthen transparency." This presumes the video proves there was no misconduct in this case, though Kimmons' mother Letha Winston continues to seek justice for her son's death.
As with the other cases, the Board should also have looked at Officer Britt's background, since he was involved in the September 2012 shooting of Joshua Baker and, coincidentally, contacted John Elifritz the day he was killed.
(B/C 5) There is no mention in the summary report on the November 22, 2018 death of Richard Barry that at least one of the Portland State University (PCU) officers involved was wearing a body camera. The footage, which was released by PSU's magazine the Sentinel,*- 9 shows either Portland Police Officer James DeAnda or Jared Abby with his knee on Barry's shoulder, followed shortly by Barry ceasing to move at all. The cops do not seem to check him for breathing, noting only that Barry is lying on their hats and may have gotten blood on them. The report states that Officer #2 claims he could see (or feel?) "the movement of [Barry's] chest," proving he was still breathing, even though Barry was lying face down.
The PRB's discussion doesn't seem to acknowledge the PPB officers contributing to Barry's death, instead the report says Officer #1 "used a reasonable and the least amount of force necessary to place Suspect 1 in handcuffs." This cop decided not to give Barry first aid because they had already called in medics and he "did not think it needed to be rendered sooner," though he knew Barry was bleeding, but he left the scene to wash the blood of his hands and uniform. This highly questionable destruction of evidence is addressed only in the discussion of the supervisor (Officer #3) when _a single Board member_ asked for a debriefing about preserving a crime scene. The cover memo does not address any debriefings either for Officer #1 or Officer #3.
Officer #3, by the way, went with Barry to the hospital, which was according to policy. One Board member noted it was "impressive how the sergeants were able to control [the crime scene]." Officer #5, who was not a sergeant, took the role of scene supervisor, something one Board member called "commendable."
The only discussion of anything having to do with Mr. Barry, in a way, was a suggestion to look into handling "cases of excited delirium," a condition the Medical Examiner claims led to Barry's death. That term is not universally accepted as a medical term, and certainly we should not ask officers to make medical diagnoses. Rather, there should be responses trained to certain behaviors, not syndromes. That said, the recommendation was not voted on because two "advisory board" members left "unexpectedly." Only one vote shows the number of people who had been present (6) so assuming the two members were voting, not advisory members, there was in fact no quorum any more.
There is no discussion of the officers' concerns about their hats and Barry's blood seeming to outweigh their concern for his well being.
Three officers left the force due to discipline or to avoid it. It is probably of some significance that all three grew out of "B" (Bureau-only) cases and not civilian complaints or shootings. Here are the expanded circumstances we found in the Police Review Board report.
(B1) The officer who falsely claimed he'd been the victim of a hit-and-run was fired based on three Sustained findings: violating the Truthfulness Directive by lying, the Laws, Rules and Orders Directive by filing a false police report, and the Satisfactory Performance Directive for the false report. It would be interesting to learn whether the officer was also charged with a crime for falsely reporting the accident. They wasted a lot of public dollars, calling out the K-9 unit and Clackamas County's accident reconstruction investigators. Those investigators found the "physical evidence [does] not support the statements made by [Officer 1]." The report says that three of the five PRB members found the officer needed to face aggravated discipline due to previous cases; however, Category F's presumptive discipline is termination and there is nothing more serious than that. This case took so long to process-- the incident occurred in early 2016-- that Chief Marshman agreed with the initial findings (made in December 2016) and Chief Outlaw applied the discipline (Outlaw started work in October 2017).
(B5) Commander Jones' drunk driving crash led to four Sustained findings and a split vote by the Board: three wanted to fire him and two just wanted to strip him of his rank. As noted above, he resigned before the discipline of termination could be applied. The four findings were all linked to four Directives around Conduct, Laws, Satisfactory Performance and Vehicle Use. The first was tied to the DUII, the second to crashing while intoxicated, the third for unsafe driving, and the fourth for operating the vehicle while off duty but on call.
After Jones called for police to come to the scene, they administered a field sobriety test and arrested him for DUII. He was also given a breath test, and civilians who witnessed the crash contributed to the investigation-- including that Jones was traveling about 70 miles per hour in a 35 zone. Jones pleaded no contest to the charge. Two PRB members felt the outrageous conduct was mitigated by Jones' "years of good service" and the "hard assignment" he was given. At the time, Jones was in charge of the Professional Standards Division-- which oversees Internal Affairs and the PRB.
The Board made two recommendations: one to hire a person to fill a vacancy in the Employee Assistance Program, which helps officers with substance abuse and other problems, the other to include a crash expert when investigating officer accidents for possible criminal charges.
(B6) This is the case where an officer (#1) helped get another officer (#2) hired back onto the force even though #2's "police powers were suspended as a result of [their] inability to qualify with a handgun." The Board found that #1 had claimed they did not know about the suspension even though other people testified otherwise. One member thought #1 telling the Chief to rehire #2 was "deceitful." The Board voted 5-0 to Sustain a complain of Unsatisfactory Performance. Facing a week off without pay for "misuse of authority," officer #1 retired.
One side effect of this case was the suspension of the Retire/Rehire program, which is just as well since one of the officers who was rehired under that program was Sergeant Gregg Lewis who made a racist comment and was fired, rehired a second time with back pay, then resigned.
(C5) As noted above, Sgt. Smith should have been facing discipline for three Sustained findings: giving false information (Sustained by Smith's supervisor), making threats (Sustained by the Citizen Review Committee and affirmed by Chief Outlaw), and lying (also Sustained by CRC and affirmed by Outlaw). However, the original complaint, numbered 2016-C-0407, has not appeared in any PRB report since the incident on November 30, 2016. The Chief sent the case back for an additional look into whether Smith violated the Truthfulness Directive, with the PPB assigning the case number 2018-C-0061 to the re-investigation. That case led to the PRB's vote finding insufficient evidence of Smith lying ("Not Sustained") even though they suggested a debriefing about when it is ok to "deceive." Notably, that proposal was by four PRB members, with the fifth thinking the finding should have been "Exonerated" (in policy) with a debriefing.
In the only mention of the original two findings, the Board said they felt the threat to arrest finding should have been "Not Sustained" because they didn't feel the Sustained finding matched the evidence. CRC members noted that Smith saying "I could arrest you for filming the police" is similar to a Mafioso telling a store owner "it would be a shame if something happened to your establishment." It's not clear if that was a formal reversal of a CRC finding by the Review Board, which would be a serious aberration in how the accountability system works.
PCW is very familiar with this case having attended all the relevant CRC hearings, but still had to look at the report carefully to figure out the timeline that the PRB's hearing on the Truthfulness allegation came before CRC's.
The Board recommended the Bureau clarify whether suspects who are in custody are allowed to video-record police and to train on the "ethical use of the exception to the truthfulness directive and potential impacts to community trust from use of deception." Or better yet, not allow police to lie.
PCW remains troubled both by the reduction of Smith's discipline from a presumptive termination (there are no mitigating circumstances allowed by the Discipline Guide for lying) and the disappearance of the other findings. The public knew about this case because it came before the CRC at public meetings. The expectation is that when misconduct is found it will be followed up. That the Chief may have ignored two violations and then changed the allegation on a third undermines trust in the process.
(B2 & B/C 1a) Wow, would it be great to know who this officer is since they are apparently still out on the streets somewhere. Due to the described behavior, we are assuming it was a man. In addition to the Sustained allegation that the officer gave an unwanted hug and kiss to another cop on duty in March 2016, two other (presumably female) officers made allegations of unwanted passes. One said he tried to kiss her, the other that he made sexual advances toward her. The first was "Exonerated" because the two were in a consensual relationship and it happened off duty; maybe the Bureau didn't get the "Me Too" memo that unwanted physical advances are wrong regardless of an existing relationship. Similarly, the second accuser said the officer made sexual advances, but it was also off duty so was "Exonerated." Both votes were 5-0, meaning the one community member found nothing wrong with this behavior. It would seem the Directive guiding officers' off-duty conduct would prohibit any action that could bring reproach to the Bureau, such as, let's say, macking on women who don't want you.
The officer was also going to face discipline for texting the two women he kissed/tried to kiss while under a communication restriction order (presumably due to the investigation). The Board felt if the officer didn't understand that "no means no" he should have checked with the chain of command rather than contacting the alleged victims. Chief Outlaw changed this finding to "Not Sustained" saying the officer's breach of the restriction order was "not intentional."
The officer also emailed the second victim but they could not prove whether the email had come from a fake email account-- which doesn't speak well to the Bureaus' ability to investigate cybercrime. The could have looked at the IP address associated with the email, and, maybe, the offending officer's sent-mail folder. Due to the lack of sufficient evidence the Board found the allegation that the officer lied about sending this email "Not Sustained."
With all these shenanigans, it's amazing that what led to the whole investigation was the odd incident where the officer tested a Taser on himself, which he admitted to doing in a public place with civilians present. The finding on that allegation was 5-0 to Sustain. Since there were civilians involved in this part of the complaint, it's not clear why the allegation didn't turn it into a "C" case, meaning those civilians who witnessed the Taser test could have appealed had the finding not been Sustained. Moreover, if the argument is that the two women who complained about off-duty behavior were in their roles as civilians, their complaints should also have been "C" complaints and they should have been able to appeal as well.
Overall, the Board made three Sustained findings-- the hug/kiss, the Taser Test and the texting-- and four of them recommended three weeks without pay. One brave soul suggested Termination, but the summary report clarifies they just thought it should be more than three weeks for previous discipline, but perhaps would have been ok with a lesser action. As noted above, the Chief lowered the discipline to two weeks off.
The Board noted the officer had problems in his personal life and asked the Bureau to conduct a "fitness for duty" review for the officer. They also suggested he do a one-on-one training with Human Resources around harassment and what it means. The Board member who asked for termination also acknowledged the officer who got hugged and kissed felt "uncomfortable" while at work "which is unacceptable." So while there's some acknowledgment of the problem, it feels as if this officer got mostly a free pass. The cover memo doesn't say whether the recommendations were followed.
(C2) Starting with the protest complaint which resulted in discipline, the officer's use of pepper spray at a 2017 protest led to the split vote noted above-- four members said there was not sufficient evidence to prove a violation, with one recommending a debriefing around tactical use of the spray. They pointed to the "chaotic" nature of the protest and said the officer was trying to create a "defensive perimeter" to stop a civilian from taking a police bicycle (a dubious claim). The report says a video shows two bystanders being hit by the spray-- which if that's never happened to you, let's just say you don't want it to. It's like rubbing a hot jalapeno pepper right in your eyes.
The three Board members who voted to Sustain the complaint noted there was no resistance from the bystanders, no precaution was taken to protect them, and implied the officer used a stream of spray rather than short bursts.
The 4-3 split shows the implicit unfairness in the makeup of the Police Review Board: more likely than not it was the four police personnel who didn't see this as a problem. This despite the fact that the case came to the Board because the IPR, Internal Affairs and an Assistant Chief all over-rode the officer's supervisor to recommend a Sustained finding. Oh, and did we mention that said supervisor is one of the voting members? So if that seat were swapped out for another civilian, the vote likely would have been 4-3 the other way. It's good that ultimately the officer received a day off without pay. One last note about bias: the facilitator referred to the action where this took place as a "violent protest"; our experience says that most of the violence one sees comes from the police.
(C1) Following up on the bias question, this incident is reported as having happened at an "unpermitted" protest, as if not having a permit justifies police violence. This is a rare case which gives the date (Feb. 20, 2017) and the location (the federal building at SW 3rd and Madison). Though there was police violence at that site, the launching of the less-lethal weapons (FN-303 "projectiles") happened a few blocks away at SW 6th and Main. The officer is described as being assigned as a "grenadier"-- yes, someone whose job is to lob grenades at "the enemy." The officer fired Pava Rounds*-10-- projectiles containing Pelargonylvanillylamide, hotter than typical Oleoresin Capsicum "pepper spray"-- at two community members. The rounds also apparently hit another officer in the hand.
Interestingly, the Bureau's Force After Action Report found the officer out of policy for using the less-lethal device. IPR contacted the civilian through an attorney leading to the complaint moving forward-- a "C" case which was initiated by the Bureau. However, the board split on a 4-3 vote, again raising the question of whether the police dominance swayed the outcome. The four who voted the finding should be "Not Sustained" said the officer used "sound judgment" and the actions led to the arrest of the so-called "aggressive" complainant "without further incident." The three who wanted to Sustain the finding felt it violated the existing policy and the officer did not "continue to assess the evolving circumstances" as required.
There was a second allegation that the officer did not use "as little force as practical" which is required under the Satisfactory Performance Directive (it's never been clear to PCW why this isn't in the Force Directive). The four "non-sustainers" this time said the complainant was making "repeated threatening contact with officers" and that the cop chose the best "tool"*-11 to resolve the situation. The three who found the officer violated policy noted the complainant "was alone before the line of officers and did not present a level of risk that would have precipitate the use of force." This sounds as if the cop just got tired of someone yelling at them and shot pepperballs at the person. The three mostly level-headed members of the Board asked only that the officer receive "Command Counseling" because of the "chaotic circumstances, the aggressiveness of [the complainant], who had made contact with officers earlier in the day, and [the officer's] complimentary work history."
The Board recommended improving communication in the Rapid Response Team and reviewing the use of the FN-303 weapon in this particular case. One member referred to the officer's action as "brandishing" the weapon, implying that it reflected badly on the Bureau (but the report isn't clear about that).
(C3) The officer who continued to talk to a suspect after the suspect asked for an attorney only had one of four allegations "Sustained," for failing to deliver "Satisfactory Performance" but not respecting the person's Miranda rights. The person was being arrested on a warrant and for attempting to elude the police on foot after running from a car. The officer didn't document the request for an attorney or tell other officers, which led to two of the other three allegations, with the fourth being around Truthfulness when the cop said he didn't hear what the suspect said. Other officers on the scene heard the person ask for an attorney. (Which reminds us to tell readers, say it loud and say it proud: "I want to talk to an attorney.")
The Board seemed to believe that the officer didn't hear what the suspect said, voting 5-0 to Sustain the first allegation because it is important to get the Miranda rights correct. The second two allegations led to 4-1 votes, with the majority thinking a "Not Sustained" finding should come with a debriefing about listening to the suspect and conveying information to a primary officer. They were unanimous in "Not Sustain"-ing the Truthfulness finding, saying there was "no willful disregard" of the person's rights. If so, it raises questions why the finding wasn't "Exonerated" (in policy) or "Unfounded" meaning that the facts don't support that the alleged behavior happened.
The recommended discipline was one day suspension without pay (though one member didn't count prior violations as "aggravating" and only called for a Letter of Reprimand). As noted above, the Chief found the past problems even more aggravating than the Board did and raised the discipline to two days off.
Though the District Attorney said the failure to respect Constitutional Rights did not affect this case, the Board noted there could have been serious consequences.
(C6) The other case, where Officer Harrison messed up basic police work, led to the longest, most detailed case summary since PRB reports have been published. While it is troubling the officer took a person's car keys to stop them from driving drunk without providing a property receipt, it would be great if all cases-- especially the Deadly Force cases-- got this much attention in the public reports.
Overall there were six allegations. To be clear, there was a car in which the driver whose keys were taken was involved in two allegations, with the passenger in that car raising concerns about four more.
(1) The passenger said officers took their cell phone but didn't give a receipt. This was found "Not Sustained" on a 5-0 vote, though the report claims the Board found "no evidence" the phone was taken. This finding is for when there is some evidence but not enough to prove misconduct; the PPB and the facilitators need better training on the meaning of the findings.
(2) No report was made about the phone; this was also found Not Sustained, tied to the first allegation.
(3) Excessive force: the passenger sat in the doorway of the police car but did not put his legs in the car; Officer Harrison reached across the back seat and yanked the person by their arm to get them into the car. The Board said the person came close to kicking a second officer-- but it's noted that could have been the result of the person's legs being forced upward when they were dragged into the car. This allegation was Not Sustained.
(4) There was no documentation of the Use of Force. This finding led to a split-- one Board member felt it should be Sustained, the other four "Not Sustained" with three of those feeling a debriefing was needed. The one holdout on the debriefing felt there was no need to document the Use of Force, because moving the handcuffed suspect was not force because there was no resistance. (The Report includes a dialogue asking whether gravity is a form of resistance.)
Oddly, the two pages documenting this discussion refers to a board member who controverted the commander's finding noting that resistance isn't necessary to determine if force was used. The report doesn't note, but PCW will, that if a person is passively resisting-- by, say, refusing to put their legs into a police car-- there are limitations on what force officers can use. Regardless, the cover memo reveals the person who controverted the original finding on Use of Force was from Internal Affairs; Internal Affairs does not have a vote on the PRB, so it's not clear why the IA representative was referred to as a "Board member."
(5) Officer Harrison failed to give the driver a receipt for the car keys, instead taking them back to the precinct and telling the driver to pick them up once they were sober. This allegation was Sustained on a 5-0 vote. The Board noted Harrison could have had the car towed or arrested the driver for DUII. The officer didn't put the keys in an evidence locker to avoid writing a police report. This violated the directive on Property and Evidence Procedure.
(6) Officer Harrison did not document seizing the keys. This was also Sustained 5-0.
As noted above, the Board recommended Command Counseling, though three members thought it was a "Category B" minor deviation from policy and two thought it was "Category A," all had the same outcome. Deputy Chief Day accepted this recommendation.
Our final two thoughts on this incident: First, all reports should go into this much detail about the discussion among the board. While some of the details are repetitive, it really gives a feeling about how the Board deliberates. Particularly, it shows how police repeatedly "explain" officer behavior as normative rather than asking questions about actions which could lead to policy or training changes in the future. Second, it's not clear why the documentation of seizing the keys was examined and found out of policy, while the actual seizure wasn't addressed. Was there probable cause? There certainly wasn't a warrant. And it doesn't seem it was done with the driver's consent. We hope the Bureau will look at all aspects in cases like this, not just paperwork technicalities, as important as they are.
(B3) It's intriguing that the supervisor who "recited the lyrics" to an offensive song was cited for violating Directive 344.00, which broadly prohibits Workplace Harassment, Discrimination and Retaliation. Because the supervisor was facilitating a training [?-- it's blacked out] with cops from other agencies they said the song "demonstrated poor judgment." One of the four people who voted (again, not clear why there weren't five members) said the behavior was unprofessional but wasn't discrimination or "harassment of a protected class." Best guess: this dissenter is not a member of a "protected class."
The Board divided on proposing discipline; two suggested one week off, one suggested two days off, and the "unwoke" member asked only for a Letter of Reprimand. The three serious members asked for remedial training, while the lone voter believed the supervisor's "statements and intent." The Chief agreed to give the supervisor a week off without pay.
The split vote in this case raises questions about whether there is any attention paid to the diversity of PRB voting members when Boards are put together, and whether this process fits in the Bureau's equity plan.
(B/C 1) In this case, an officer responded to at least two different calls which led to a single investigation, labeled as a "B" case even though there are several community members involved in and impacted by the officer's actions. The incidents occurred over a few weeks' time.
The first call had to do with a man who was subject to a restraining order and had an arrest warrant for third degree burglary, but the officer chose to take the man to the hospital rather than arresting him. The man took off after being dropped there. The officer told IA they knew the Directive on Domestic Violence Arrests made an arrest mandatory in this situation, so the Board voted 4-0 to Sustain violations both of the DV Directive and the Arrest with Warrant Directive.
In the second incident, the same officer came to help a person who was suicidal, found that person was in violation of a restraining order and potentially involved in a bias crime, then failed to make an arrest and left because they were being video-recorded. The officer's supervisor apparently then told him to arrest the person and the officer went to their Commander rather than someone lower in the hierarchy to complain about it. The Board again voted 4-0 to find the officer in violation of the Satisfactory Performance Directive, noting the officer could have called for backup rather than leaving in the middle of the contact. The four Board members decided the finding on violating the Laws, Rules and Order Directive could not be proven but the cop should be told at a debriefing not to skip through the chain of command in the future, even if the Commander had an "open door" policy. However, they voted to Sustain the allegation the officer disobeyed the supervisor by not making an arrest.
It's not clear from the narrative whether there was a _third_ incident, in which there was a possible Domestic Violence assault involving a houseless person and two children living in a vehicle. The officer apparently thought the civilian-on-civilian violence didn't meet the legal standard of "assault," but merely "harassment" so didn't make an arrest. The Board found this possible violation of the Domestic Violence Directive to be Not Sustained, recommending a debriefing about the meaning of "assault." On the other hand, they voted to Sustain a finding that the cop did not take action to protect the people in the car, finding it violated policies about Child Abuse Investigations and Satisfactory Performance. The officer did not investigate or contact the Department of Human Services as required.
There were two other allegations which were "Not Sustained" around the failure to arrest a woman on a minor warrant, rather suggesting she turn herself in. Since that was a discretionary decision, the Board asked for a debriefing to make sure the officer told their sergeant about the decision. The other was whether the officer lied about the abovementioned crime being harassment and not assault, but the Board felt it was an honest mistake and poor reporting, so asked for a debriefing for the officer to do better next time.
Three members asked for the officer to receive one week off without pay, identifying the refusal to obey an order as the worst allegation. They also noted the failure to arrest posed a danger to the public, bringing back the question of why this is not a "C" case. The Board wondered why a seasoned officer would be "confused about how to handle serious matters like potential child abuse." One member only thought the multiple findings required two days off. They all said the officer needed remedial training and referral to the Employee Assistance Program. The Chief agreed with the stronger discipline of one week off.
(B4) The supervisor who failed to report their relationship with someone under their command for two years was initially being scrutinized for not investigating misconduct between two officers. The Board found there was not enough evidence to show whether the misconduct occurred so voted 5-0 to call this allegation "Not Sustained."
However, with regard to being involved in a relationship with an underling and not reporting it to a supervisor, the Board found violations of the Conduct and Laws, Rules, Orders Directives in separate 5-0 votes. The recommended discipline was merely two days off without pay, which is an aggravated "category B" finding due to this being the supervisor's second violation of the Conduct policy in two years. The Chief applied that discipline to the supervisor.
(C4) The officer in this case contacted a teenager (per the text written on top of a redaction), apparently using the officer's personal social media account, late at night. The summary reports that the "tone and content of the messages raise the perception of misconduct." The finding on this Conduct allegation was Sustained 5-0.
The Board also found the same officer failed to document a potential sexual assault on a 5-0 vote, recognizing that the survivor wasn't fully cooperative with the investigation.
Two other allegations were "Not Sustained." One was around failing to follow proper steps in the investigation, due to the survivor's lack of cooperation the Board felt the officer did not necessarily fail in this duty. The other is that the officer used their city smart phone and hooked it up to his personal social media account. As with the email issue in case B2, there wasn't evidence when the phone was synchronized, which again raises questions about the PPB's investigative capabilities. If this employee even remotely could be a pedophile of some kind, a deeper dive into the officer's contacts seems reasonable based on what was already discovered.
The Board recommended one day off without pay combining the two Sustained findings, noting the "conduct was especially troubling because it involved minors" and worrying about impacting relationships with --redacted--.
Three unanimous recommendations are listed: To adopt a policy about use of social media, to look into policies on interacting with "youth and other vulnerable populations," and to provide training on what is and isn't appropriate use of social media.
In addition to the PPB needing to restore references to the progress of PRB recommendations, PCW repeats that the PRB's Reports could be improved by including:
--the date of the incident in question
--the number of voting members and number of votes
--which opinions were from officers, civilians,
--the gender of all persons involved (or, as suggested above, at least
--the names of officers, particularly in cases which have already
--more thorough background summaries for all 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
--a list of the names of the civilian members of the Board, which
Once again, Portland Copwatch asks that the Bureau open PRB hearings to the public, or at least allow media and those directly involved to attend so there will be more transparency and trust-- values stated in the Community Engagement plan and the Bureau's draft five year plan. As was noted by OIR Group in their 2019 report on deadly force incidents, PRB members should be asking tougher questions, especially around possible policy violations related to shootings which don't necessarily involve the actual use of force.
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.
PCW learned about the publication of this report via a community member and an Oregonian article, even though we have consistently shown interest in the reports including in testimony to City Council. As part of community engagement, the PPB needs to set up an alert system about the PRB reports and, as noted before, hold public meetings following their release so that PRB community members can reflect on the process and get actual feedback from the people they represent.
We wonder why some cases have been lingering since 2016 without publication. Are officers taking leaves of absence, delaying the final disposition? Have the collective bargaining units filed grievances that were winding their way through resolution? PCW does not believe such information is protected by state law, especially when anonymized as happens in these reports.
Finally, this is the second year in a row when what used to be a January release date for the first report was pushed back to September. We hope to see the first report published before the end of June in 2020.
*1- In years past Portland Copwatch has read these reports before the media, but here we
acknowledge that the Oregonian reported on many of the PRB report's cases in an October 2 online
*4- Two officers fired their weapons at Sarah Brown, five at John Elifritz, two at Patrick Kimmons, and two were involved in "restraining" Richard Barry, explaining why more officers are under scrutiny than the number of incidents.
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Posted October 11, 2018