This points to one of the overall concerning issues with the process of asking the community for input into Bureau policies-- even when changes are made that we can support, there needs to be evidence that they are being enforced and officers are being held accountable for violating them.

That said, we have taken out the comments we made about changes we supported and, to some extent, prioritized our comments for the new review in effect until March 17th.
[link to 2018 directive post, taken down]. Most of these comments are word for word lifted from the September analysis, with some tweaks, edits and updates.

___High Priority Concerns:

Section 8.2.2 explicitly calls for officers using the loudspeaker system to "communicate targeted information to specific individuals to provide direction." We noted this is an intimidating tactic coming from the military grade Long Range Acoustic Device (LRAD) now in use, and asked
the Bureau to stop it. Instead, the policy formalized the ability. This
deserves much more discussion as police will call out the names of
people they know, but say "you in the red sweatshirt" to others,
creating, shall we say, unequal protection of the law (see: Fourteenth
Amendment).


PCW recommended a policy against targeting those observing police at
demonstrations. Section 12.4 prohibits arresting "media or legal
observers... solely for their role in observing, capturing, and/or
reporting on demonstrations or events." The Bureau put in two caveats,
though: One is that those observing must do so "in a safe manner and in
compliance with police orders," the other says that if observers do not
comply with "all police orders" they may be arrested. We're not sure
this is contemplated by the First Amendment.

PCW asked that video not be taken for "situational awareness" and turned
over to the City Attorney because ORS 181A.250 prohibits collecting OR
maintaining information on people's social, political or religious
affiliations without reasonable suspicion of criminal activity. Section
4.3 now allows live video feeds which are not permitted to be recorded
without such suspicion to be authorized by the Incident Commander. The
policy explicitly says the authorization cannot be based on monitoring
the associations/views of the people. However, the fact that a live
video is being transmitted still seems to fall under the idea of
"collecting information" whether or not it is retained.

The Bureau did not act to prohibit the use of violent arrests as we
asked, leaving in place a requirement to "consider" the "method of the
arrest" (Section 12.2). Moreover, the PPB did not make changes such as
adding the level of criminal behavior and likelihood of escalating
tensions to the existing consideration of "timing, location and method
of arrest."

There was no response to our concern that multiple uses of force against
crowds are not being reflected in quarterly Force reports. We learned
that crowd force incidents are being consolidated in a separate section
at the end of annual Use of Force data reports, but not integrated with
the other data. (Officer involved shootings are also not included with
the general totals.) We have asked before and ask again: why is force
against a protestor not counted as force?

Section 8 on Announcements does not require officers ensure that
conflicting commands (such as "get off the street onto the sidewalk"
/"get off the sidewalk into the street") are not given. The closest the
Directive comes is saying the Incident Commander has to ensure
announcements are "consistent" (Section 6.1.5), which could just mean
they are ongoing.

Section 9.2.1 says that weapons cannot be used unless there is an escape
route available to the crowd. Such an escape route, however, is not
required when officers order a dispersal (Section 9.1), and there is no
requirement that those giving orders to the crowd be aware of such an
escape route (Section 8).

The Bureau took out the words "contain" and "control" as goals of police
tactics, highlighting the idea of de-escalation instead (Policy Section
6). However, the Directive adds the terms "protect public safety and
restore peace and order" at the beginning and end of that Section,
bringing the same problem of vagueness which could lead to over-policing
based on a subjective interpretation. Moreover, the entire Directive's
tone is still set by Procedure Section 1 talking about how Directive
1010.00 on Use of Force governs officer use of force. Directive 1010.00
itself begins with a section on de-escalation. That should be noted
before the words "use of force" are used in this Directive.

The use of deadly force has not been prohibited in Section 10 despite
suggestions from PCW, the ACLU, the National Lawyers Guild (NLG) and
Oregon Lawyers for Good Government (OLGG). Nor has the Bureau prohibited
use of "batons, pepper spray, impact munitions, flash-bangs, tear gas,
and bicycles" as we asked.

___Second Most Pressing Issues:

There is nothing in the Directive, including in Section 9 on "Crowd
Dispersal," about the Bureau's ongoing tactic of "kettling" (boxing in)
protestors, despite our request. Perhaps Section 11.1 on detaining
"individuals engaged in civil disturbance" is supposed to cover that
tactic.

The Bureau modified Section 11.1 on detentions to say officers may
detain "individuals engaged in civil disturbance" rather than "a crowd
engaged in unlawful assembly," which is an improvement. However, the PPB
did not address our concern that the City says officers "may" do so,
since there's no requirement that the people had to have committed any
particular criminal act (other than failing to disperse). Especially in
light of the ACLU lawsuit over this tactic, we urge the Bureau to limit
or eliminate the use of this tactic.

The Bureau has been actively rounding up items they claim are potential
weapons, even those that are not listed under state law as dangerous,
despite the fact that an old part of the Directive allowing them to
"pre-emptively confiscate potential weapons" was cut from a previous
iteration.

Also, even though they have become ubiquitous in crowd control, the
specific guidelines for use of so-called "aerial distraction devices"
(aka flash-bangs) and "rubber ball distraction devices" (aka less-lethal
grenades) are not addressed directly in any Bureau policy.


PCW asked for clarity whether pepper spray is among items the Bureau
considers to be "riot control agents." Some clarity comes now in Section
10.2 which says officers can't "deploy specialty impact munitions or
aerosol restraints indiscriminately into a crowd," but otherwise pepper
spray isn't addressed.

We noted the PPB said crowd control should be used if an event becomes
"unlawful or violent" without any specific definitions. They now say
control tactics can be used if there is a "civil disturbance" (Policy
Section 6). This is defined as "an unlawful assembly that constitutes a
clear and present danger of riot, disorder, interference with traffic
upon the public streets or when another immediate threat to public
safety, peace or order appears." It's not clear exactly how
"interference with traffic upon the public streets" constitutes a threat
to public safety. It's also not useful to characterize an assembly of
persons (guaranteed as a right in the First Amendment) as "unlawful." In
other words, the PPB is trying to say what makes the assembly "unlawful"
by giving examples, but using the word up front implies the assembly
itself is an unlawful act. While the definition of "civil disturbance"
is slightly improved (because they dropped the terms "threat of
collective violence, destruction of property or other criminal acts"),
the new language is also vague and over-broad.

Where we asked the Bureau to change its delineation of event types from
"Planned demonstrations" vs. "Spontaneous demonstrations" to
"Coordinated with the Bureau" vs. "Not coordinated with the Bureau," the
Directive merely adds two clarifying points to the "Spontaneous
demonstrations" Section (4.2). It now defines such demonstrations as
"events that the Bureau learns of with less than 24 hours notice"
(4.2.1) and note that such events "can be lawful and be facilitated with
appropriate police response" (4.2.2). We asked the Bureau to reinsert
the words "or no police response/assistance." We also asked the PPB to
specifically state "The Bureau will not take adverse action against a
group because it has refused to establish lines of communication with
the Bureau." Neither of these happened.

We were concerned the list of crimes that are not protected by the First
Amendment was too broad (listing trespassing, destruction of property
and saying "but not limited to"). The new list is even more chilling,
bringing in the items from the "Civil disturbance" definition: riot,
disorder, interference with traffic, etc. For an organization that
allows officers to point weapons at people when it's not likely they
would be justified in using those weapons, drive recklessly by ignoring
traffic signals and speed limits, engage with their electronic devices
while driving, harass people of color by patting them down during "mere
conversations" and countless other affronts to social norms, it is not
reasonable to use a blanket term like "disorder" without being more
specific.

The Section (13.4) requiring officers who use force to file a report
still does not set a deadline of the end of their shift (as was in a
previous version).

The Section (6.1, formerly 5.1) on the Incident Commander says they
should "consider what tactics are objectively reasonable under the
totality of the circumstances," which is better than the older version
that didn't use the word "objectively" and asked whether the tactics
were "warranted." However, PCW asked the PPB to re-insert criteria from
an older version including whether police action will improve the
outcome, which was not put back in. "Objectively reasonable" also
replaced the term "necessary" in Section 6.2 describing the Incident
Commander's decision making around use of weapons.

There is still nothing prohibiting officers from targeting individuals
based on their clothing or perceived political affiliations as both we
and the Citizen Review Committee suggested. The closest guideline is the
one stating officers have to articulate probable cause for an arrest
(Section 12.3).

Similarly, there is nothing requiring the prompt release of property
confiscated at protests, also a CRC recommendation that PCW supported.

____Third Tier, but Still Important Concerns:

The PPB removed the word "empower" in describing their encouragement for
people to come up with their own security plans (Policy Section 5), but
still says they will "encourage and support participants' efforts to
monitor themselves in an attempt to limit member involvement." We
suggested the Bureau be "supportive of participants' organizing to set
guidelines on behavior" to not seem so paternalistic. That did not
happen.

While the Bureau added that in addition to contacting organizers, they
will "engage in dialogue" (Section 3.1.1.1), that doesn't address PCW's
concern that a phone call from police can be off-putting, and their
laying out "expectations" is paternalistic. We suggested instead that
police and the City post frequently asked questions about guidelines for
demonstrations. Apparently this was not a well-received idea. Instead,
we have had the Mayor going on TV giving condescending speeches about
his expectations. The point is that people should be able to examine
such guidelines and create a plan based on what they know the City has
said.

In addition to "organizers" the Directive adds "Person(s)-in-charge" as
potential contacts for police, per our recommendation (Section 3.1.1.2).
However, the PPB did not change the term "person-in-charge" to "liaison"
which we pointed out allows organizers to assign someone not necessarily
in charge to exchange information with police.

The Incident Commander now is asked to determine the appropriate level
of response "if any," indicating they now will call in the Rapid
Response Team based on what is "warranted" rather than if a civil
disturbance is "anticipated" (old Section 4.1.3.2, new 4.1.2).

The Section guiding behavior (6.6) clarifies that individual officers
can only act outside a Sergeant's direction when protecting the officer
or others "from physical harm," new words that are more clear than "in
exigent circumstances." However, we still think the level of harm
(something more serious than a paper cut) should be indicated. Despite
this Procedure Section, there was no addition of language in the Policy
section directing police to physically protect demonstrators from
external threats or aiding events by directing traffic.

PCW asked that the Bureau incorporate and cross-reference parts of the
separate Directive 635.00 on strikes and job actions.
< https://www.portlandoregon.gov/police/article/526160 >
There is no mention made of this other Directive.

The guidelines on working with other agencies (Section 7) does not
ensure they will be trained or identifiable in the same way as PPB
officers. Section 7.1.3 requires officers from other jurisdictions to
follow PPB orders... but they are allowed to rely on their own policies
and procedures, rather than the PPB's. This means we will continue to
have inconsistent policing until outside officers are required to train
in and follow PPB's practices. No effort has been made at the state
level by the City to require all officers to wear identification on
their outermost garment. Nothing specific has been added to Section
7.1.1 about the nature of the PPB commander briefing officers from other
agencies.

While the Bureau talks about "facilitating" some events, they still use
the words "Crowd Control" and "Crowd Management" rather than "Crowd
Facilitation" as we suggested.

PCW asked (in our Feb. 2017 comments on the Special Weapons Directive
1090.00) that the guidelines given to officers in 2012 explicitly saying
what kinds of weapons and tactics were to be used in what situation be
integrated into both that Directive and the Crowd Directive. That did
not happen.
(See )

The stated goal to minimize "potential disorderly or violent outbursts"
has been changed to be about minimizing "violence, injury or damage to
property." While minimizing violence and injury is a good goal, PCW has
repeatedly asked the Bureau to be clear what is meant by "damage to
property." Some believe that writing slogans on a sidewalk in chalk is a
form of "property damage," which is silly (Policy Section 5).

The new version does not remove the suggestion that officers' presence
is partly to "encourage crowd self-monitoring" which we compared to
having your boss stand over your work area all day while armed (also
Policy Section 5).

The Bureau also did not replace the phrase "when police response is
necessary" to "when police choose to respond" as we suggested (3.1.1).

The new Directive does not address specific ways other than social media
to get information to a crowd, even though we pointed out not everyone
who goes to demonstrations carries a smart phone (Section 3.1.1.3).
While it continues to refer to "other conventional outlets" it is not
clear what that means.

A confusing chain of command involving the Incident Commander, the Rapid
Response Team and the on-duty precinct supervisor has not been fixed in
Section 4.2.

Section 6.3 still refers to the "Operations Section Chief" instead of
the "Assistant Chief of Operations" which is the proper title we
suggested.

The policy does not clarify what is meant by "ensure the audio
confirmation received by identified staff on other end" when talking
about documenting warnings (Section 8.3.3).

Even though we frequently see fixed-wing aircraft over protests which
are likely PPB's Air Unit, there is still no discussion of their role at
demonstrations in this Directive as we suggested.

The call for officers to maintain a "non-confrontational" presence has
been changed to a "diplomatic" presence (Policy Section 5). Perhaps both
words would be better. It also changed the goal of such presence to
dissuade "disorderly behavior" to dissuade "civil disturbance," which
could be an improvement if that term were better defined.


We thank the Bureau again for the opportunity to comment, but hope that
more of our concerns will lead to positive change.

--Dan Handelman, Regina Hannon and other members of
Portland Copwatch

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