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COMMENTS ON PROFILING, ACCOUNTABILITY, AND OTHER DIRECTIVES SEPTEMBER 2018
To Chief Outlaw, Capt. Bell, Lieutenant Morgan, PPB Policy Analysts, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board staff, US Dept. of Justice, Independent Police Review, Citizen Review Committee and the Portland Police Bureau:
Below are Portland Copwatch's comments on the Directives posted for review in September <http://www.portlandoregon.gov/police/59757 >. We are very concerned that the PPB released SEVENTEEN Directives for review on the Saturday of Labor Day weekend, expecting meaningful feedback by September 16. Because we have made comments on all of these Directives in the past, this task was somewhat easier for us but still requires checking to see what changes were made in between comment periods. We continue to encourage the Bureau to post comments as they arrive so commenters might be able to build off others' ideas (de-identified is fine with us, though we are fine being identified). We point out that until recently, comments on Body Cameras were posted on the Bureau's website for everyone to read.
We make a few comments about the possible findings on misconduct allegations, below. We are glad that the Bureau moved away from trying to cut down the four possible findings to two, but continue to believe that the same findings should apply to deadly force cases. They should not just be "In Policy/Out of Policy," as there could be room for an "Insufficient Evidence" (aka "Not Sustained") finding in those cases. We did not see any reference to applying this concept to deadly force cases in the Bureau's published Directives memos, rather, Directive 336.00 still only includes the two findings previously being used.
In publishing the finalized 330 series in February, the Bureau claimed they clarified that the "Discipline Coordinator" is the same person as the "Review Board Coordinator." The Discipline Coordinator's role and position at the Professional Standards Division (PSD) is not made clear in Directive 335.00, though there is a brief mention in Section 184.108.40.206 that the person is in PSD. The term "Review Board Coordinator" is still used in Directive 336.00. So it seems no clarification actually happened.
Similarly, in previous comments we noted: "A general point of confusion is that many Directives refer to the Professional Standards Division and/or Captain, while others refer to the Internal Affairs Captain. Our understanding of the structure is that IA is part of PSD and there is a ranking member over all of PSD, not just IA. We hope the Bureau can clarify this point." The two terms are still used interchangeably among the Directives.
We also continue to believe that the review periods should be at least 30 days on both ends of the rewriting process so there is time for organizations who only meet monthly to weigh in. As we noted, this might include the BHU Advisory Committee, though they seem to have special dispensation to make comments and receive feedback above and beyond all other groups, as well as the Training Advisory Council, Citizen Review Committee, and if it ever begins meeting, the Portland Committee on Community Engaged Policing.
Although the Bureau has been putting out "redline" versions of the Directives when they are up for their second round of public comments, the final versions-- which frequently are significantly different from what was posted in round two-- do not indicate where changes were made, making comments on the policies extremely difficult when they come back up again as all of these have.
The Bureau did make some changes-- some of which are substantive-- based on PCW's comments, as noted below, although in once case the change reversed a policy PCW supported.
We continue to believe the Bureau should add letters to section headings (Definitions, Policy, Procedure) so that there are not multiple sections with the same numbers, and to enumerate the Definitions. Our comments below refer to the Procedure Section unless otherwise noted.
344.05 BIAS-BASED POLICING/ PROFILING PROHIBITED (previous comments made September 2017)
A number of changes were made to this Directive following the Second Universal Review in September 2017, not the least of which was a very poor rewriting of the definition of profiling. The last version the community had for comment talked about profiling as "a form of bias-based policing wherein a law enforcement officer targets an individual for suspicion of violation of a provision of law based solely [on their race or other characteristics]." The current definition ignores that a Bureau member's stop is _based_ on the person's visible protected class status characteristics. If the existing definition is to remain, it should include the following new phrases (as we have inserted *in between asterisks.*
Profiling: Where a Bureau member targets an individual belonging
To break down how that works:
"Black man, stopped him" with no reasonable suspicion is profiling.
We noted in September 2017 that the Bureau made strides toward improving the Directive by removing the word "solely" from the definition of "bias-based policing." We also reminded the Bureau that as a local entity, Portland can define "profiling" more narrowly than the state. We note that Section 2.2.1 says not to use protected traits as the "sole factor cited/identified" when looking for a suspect. We continue to suggest the Bureau use the language that was put into 810.10 on immigration enforcement, which prohibits action based "solely or primarily upon a person or group's actual or perceived national origin or immigration status." In other words, adding the words "or primary" after "sole" is an acceptable solution. Similarly we encourage that the word "solely" also be removed from (or further clarified in) Section 2.4 which guides consensual stops.
We made extensive comments about the previous section on the topic of such stops. This is what officers would call "mere conversation," though we know in Portland it might include asking for voluntary pat-downs. The language guiding "voluntary and non-coercive conversations with community members for the purpose of building relationships, providing assistance or exchanging information" (Section 2.4.1) does not prohibit officers from disparately stopping people based on their protected characteristics under the guise of "relationship building." Rather, Section 2.4.2 says that the policy is not meant to "impede legitimate community engagement based on a community's protected status." This language is upside-down from what needs to be in the Bias-Based Policing Directive. Like the language floated in 2017, this (a) doesn't prohibit officers from disproportionately stopping people to talk based on any of the protected characteristics (including race), (b) doesn't require officers to let the person know they are free to go, and (c) doesn't recognize that for many people, an armed uniformed officer asking to talk to them seems like a coercive action.
The language reflecting state law indicates the encounter has to be due to "suspected violation of a provision of law" (Section 2.2). The reality is, sometimes officers see a person and pull them over and later decide to explain the stop by relying on a traffic or equipment violation-- but sometimes no reason at all is given. Often the person is let go with no citation, warning or other paperwork. Thus the use of the term "any police action" as used in Policy Section 2 should apply to the definition of profiling, which only talks about "stops or detentions."
Furthermore, after our last set of comments identifying issues with groups protected from profiling, the Bureau re-wrote the list in Policy Sections 2 and 3. The term "gender identity" was appropriately added back in as protected by law, but housing status (which is part of state law) is still listed in the "other classes" under Section 3. The Bureau acted on PCW's recommendation separating "source of income" from "economic status" since, as we noted, "How someone makes money (whether it is returning recyclables or being the CEO of a corporation) is not the same as how much money they have or appear to have (rich vs. poor)." However, the Bureau added the word "lawful" before the words "source of income," which opens up a lot of problems, for example for sex workers and in the federal vs. state debate on the legality of marijuana. Officers should not discriminate against people for engaging in acts that are considered "unlawful," they should fairly and equitably enforce the law using discretion and compassion.
A previous requirement (in pre-2017 Policy Section 5) told officers they had to take "immediate action to stop or prevent [bias based policing]" that they observe. This is somewhat watered down in the current Procedure Section 1.2, which just says "Members who engage in, condone, or fail to report bias-based policing or profiling shall be subject to discipline, up to and including termination." We're all for the sentiment of that sentence-- we just want to see "condone" be expanded to include the previous requirement to take action to stop such behavior. We support the continuation of explicit language saying supervisors who fail to act based on reports of bias shall be subject to discipline as well (Section 1.2.2).
The Bureau has removed old Section 6.1, which made a blanket exemption to disclosing "personal information" including the name of a complainant and employee, citing ORS 192.502. Instead the only mention of such information is in Section 4.3.1, wherein the entity taking complaints on a state level is "required to keep personally identifying information confidential."
DIRECTIVE 315.30 SATISFACTORY PERFORMANCE (previous comments made Septemb er 2017)
As we wrote in 2014, 2015 and twice in 2017, "we continue to believe that Directive 315.30, taken as a whole, will be used by officers (and their bargaining units) to defend any individual incident of excessive force, saying the officer only has to display less reliance on force throughout his or her career." We continue to urge the Bureau to rewrite the Directive to explicitly say that if an officer uses too much force or makes poor decisions in one serious incident, it could lead to discipline, a concept which has been put into Directive 1010.00's Policy Section 2. We recognize that the PPB tried to address this concern in its publication of the finalized Directive in January by saying 315.30 does not over-ride 1010.00; we still believe this Directive should be clear on the matter.
Also in the published Directive, the PPB noted that they agreed to remove the language in Section 2.1 that said the Bureau "requires" officers to "apply effective force when necessary." PCW expressed concern that officers would face discipline if they chose not to use force. The PPB stated they did not want to have a policy that seemed to encourage the use of force. PCW applauds this change and the analysis.
However, Section 2.2 still says force should be applied "when appropriate," which we suggested might be better phrased as "when reasonable and lawful," and would add "and no alternatives are immediately available."
When the Directive was last overhauled, we expressed dismay that the effort to consolidate policies (this Directive absorbed previous policies 630.31, 311.00 and 312.00) may end up trivializing the importance of each individual policy. The Bureau claims these issues all have a common thread. Perhaps a compromise would be to make a section heading for each broad topic ("Assisting Motorists,." "Duty Required," and "Request for Assistance") so that a casual reader can tell there are various concepts covered in the same policy.
Finally we noted that Section 1.2.8 includes the term "disorder" as a reason for officers to take "appropriate action." As with the Directive on Crowd Control, the vague nature of the term "disorder" seems like an invitation for police to act violently against persons exerting their First Amendment Rights.
DIRECTIVE 335.00 DISCIPLINE PROCESS (previous comments made July 2017)
This Directive underwent significant revisions, including consolidating various parties' actions under two subheadings. We noted before that there are references to the proposed findings, but there is no part of the Directive calling on Managers to make such findings. This has become more prominent by calling the new Section 2 "Development of proposed findings and recommended discipline."
We continue to believe, as stated repeatedly, that having a finding called "Not Sustained" and collectively referring to that finding, "Unfounded" and "Exonerated" as "not sustained" findings is too confusing (220.127.116.11). We think "Insufficient Evidence" (the old name) or "Insufficiently Proven" would be clearer names for this finding, which means "the evidence was insufficient to prove a violation of policy or procedure." We appreciate that the definitions of the findings now clearly delineate where a preponderance of evidence is needed and for what purpose. However, we continue to believe the definition of "Unfounded" should be that "available facts do not support the allegation" rather than the accusatory one the Bureau's adopted ("false or devoid of fact"). We noted at the end of the Unfounded definition, stating "there was not a credible basis for a possible violation of policy or procedure," will get this finding mixed up with both Exonerated and Insufficient Evidence, so at the very least that part of the definition needs to go away.
The Bureau appropriately expanded its policy that the Chief should not debrief officers prior to the CRC hearing appeals by noting such appeals might also head to City Council (Sections 18.104.22.168 and 22.214.171.124).
The revised version clarifies that the officer's supervisor cannot impose discipline before Internal Affairs declares the process is completed (Section 2.1.5), per our suggestion. Clarifying that the IA Captain can only take until the end of the next business day to forward a completed file to the IPR and an Assistant Chief rather than saying "as soon as practicable" also fixes an issue we raised (Section 2.2.1). And, a reference to the Chief consulting with the Commissioner in Charge on discipline decisions which had been struck was reinserted at our request (Section 3.2.4).
We are still interested in knowing whether the issues about training, policy and supervision raised in the "Findings Cover Sheets" are publicly available (Definition). Section 2.1.3 continues to require only that a supervisor make a discipline recommendation on that sheet, not a finding or identification of such issues.
Also, it is not clear what happened to pre-2017 instructions on sending non-sustained findings to the complainant and officer, and the requirement for IA to keep original copies of case files.
DIRECTIVE 336.00 POLICE REVIEW BOARD (previous comments made July 2017)
As we noted in 2017, the Bureau's stated commitment to transparency and thoroughness are undercut by closing Police Review Board (PRB) hearings entirely to the public and the press. The Directive does not allow for the person who was harmed by an action of a police officer (or his/her representative) to sit in and talk to the PRB about their experience and concerns. We noted earlier that the Ordinance guiding the PRB does not prohibit a civilian from attending, so the Bureau could add that provision in policy, but in their memo releasing the current Directive, they stated the officer's privacy is protected by state law and the civilian's point of view is conveyed through the investigation. It is fairly clear from reading the summary reports that the officer's presence sways the PRB, including times when they have expressed concerns or wishes for the officers' well being after a shooting. Seeing a survivor or family member as a flesh and blood human being instead of a report on a piece of paper could also have a similar effect. We would add that once the Bureau decides to allow complainants/survivors into the hearings, they should be allowed to have an advocate with them.
We testified to City Council upon their modifying the City Code around the PRB on September 5. We asked that cases accepted through "stipulated discipline" be included in the twice-a-year PRB reports (Section 6.1.10). Council approved that change and the Directive should reflect it; however, we also noted that an officer agreeing to accept responsibility and punishment cuts out the ability of the PRB to consider policy issues for any given case. PCW recommends that after a stipulated discipline case is finalized, the PRB should be given at 10-15 minutes or more to discuss the case for such observations. (We also note here that the formerly semi-annual PRB reports from January and July were released in February and November 2017, and the first 2018 report came out on September 11.)
We remain concerned about the over-emphasis on confidentiality at these hearings, which are very meaningful to the community. A previous version of the Directive said participants could discuss the case "as otherwise authorized in accordance with their position with the City," the Bureau cut that clause out. As we noted last year, if the Bureau wants to win over the public's trust and confidence in the post-Ferguson era, one way to do that would be to crack open these hearings, at least by calling for semi-annual meetings where the civilian pool members of the PRB could meet with the public to go over the reports and discuss generalities about how the system works. The civilian members are supposedly representing the entire community, but they never meet with the public to get a sense of what people are worrying about.
We continue to be concerned that the involved officer has 14 days to review the Case File (Section 9.1), but community and peer officer members only have 5 days (Section 6.1.5). The Bureau's memo indicates that the Review Board Coordinator (Discipline Coordinator?)* usually sends them out more than five days in advance and checks to be sure people have time to review the files. If that is so, it should be reflected in the Directive.
The current ordinance allows names to be released in officer-involved shootings and deaths in custody cases where the names have already been made public, but the Directive still does not discuss that issue, only saying the names shall not be used (Section 6.1.9). As we noted many times, the semi-annual reports have been redacting the gender of the persons involved in all misconduct investigations even though that is not required by ordinance or the Directive. The Bureau did re-insert the requirement that the reports include a case summary (Section 126.96.36.199) at PCW's suggestion.
The Bureau also states in their memo that the RU Manager's voice is important at the hearing because of their knowledge of the officer. Even if that is true, that does not mean they need to be a voting member (Section 2.1.5), only an advisory member (Section 2.3).
In our previous comments we noted that the Policy sections do not mention community trust or transparency, values stated by the Bureau elsewhere.
As we noted previously and above, we believe that it is prejudicial to only have two findings (In Policy or Out of Policy) for deadly force cases (Section 10). Since there are many cases where the evidence may not be sufficient to prove or disprove an officer violated policy, an "Insufficient Evidence" finding should apply in these cases as it does in all others.
It is not clear why the Bureau reworded the guidelines for debriefings in Section 10, which used to be clear about debriefing on tactics, organizational review and performance analysis. Now the Directive more generally says the debrief can be for the involved officer or "chain of command" (perhaps this should also include any other officers on scene who were not directly involved in the use of deadly force), and "organizational assessments to include policy, training, and/or tactics." The addition of the word "training" is good, but the guidelines for using debriefings should be clearer.
Last time we asked why non-sworn members were cut from the Directive; at City Council it was stated they are never subject to PRB hearings.
There is a new Section (4.3) which explicitly states the findings will be determined by a preponderance of the evidence. PCW supports this being included in the Directive.
There is a new restriction on the Review Board Facilitator, who runs the meeting, who now must recuse themselves if they have a "potentially strong bias" around a case (Section 188.8.131.52).
Despite Section 7.1 saying the Facilitator has to "balance participation, pay attention to group dynamics, and strictly adhere to established processes and rules," some Citizen Review Committee members who have participated in PRBs say they are treated as uninformed parties whose perspective does not matter.
We continue to be concerned that voting members have to ask questions through the PRB Coordinator to Internal Affairs prior to the hearing, with no guarantee they will receive answers (Section 4.1.1).
In our last comments we noted that the Citizen Review Committee indicated that when no CRC members make themselves available to sit on PRBs on officer-involved shootings, they believed a second member of the PRB pool would be seated instead of a CRC member. The ordinance and Directive do not seem to allow for that possibility. PCW continues to ask the Bureau for clarification on this issue.
Two other notes about City Council:
--They changed the ordinance so that any Use of Force case with proposed sustained findings go to the PRB, not just "less lethal" cases (Section 184.108.40.206);
--At Council we repeated our concern that the US DOJ required ability for the PRB to send cases back for further investigation (Section 4.7) is not reflected in the ordinance. They took no action. This creates the impression that because this power is in policy but not law, it can be dropped once the DOJ leaves town.
*-The Directive now uses the term "PRB Coordinator" rather than "Review Board Coordinator" consistently, but still isn't clear to whom they report or that they also coordinate discipline.
DIRECTIVE 337.00 POLICE REVIEW BOARD PERSONNEL (previous comments made Ju ly 2017)
In our previous comments on Directive 337.00, we noted Section 1.1.1 allows the Chief to identify PRB candidates-- a provision that is not in City Code, which gives sole authority to the Auditor (3.20.140 [C][a]). The Directive now turns over the nomination responsibility to IPR, which would make more sense if IPR were truly independent. It's not clear how this jibes with the ordinance, which perhaps needs to be amended to say "the Auditor or designee." This change from "Auditor" to "IPR" is also reflected in Directive Sections 1.3.1 and 1.4.1.
We continue to be concerned that bargaining units may review applications by "peer officers" who rotate onto the board (Section 2.1.1). The Directive still does not say whether the bargaining unit can object to the officers serving, so we continue to hope this is just a courtesy and not an opportunity for a veto.
The Bureau has still not re-inserted the prohibition on officers serving on the PRB if they are from the same Responsibility Unit as the involved officer (as we have asked). However, in addition to restrictions that were added in 2017, there is a list of reasons that peer officers can be removed from the PRB pool. The list is the same as reasons community members might be removed, including:
--bias for or against police (220.127.116.11/18.104.22.168)
--bias against people based on race, housing status, and a number of other criteria from Directive 344.05 (22.214.171.124/126.96.36.199), a new criterion which is eminently reasonable and came from the National Lawyers Guild.
PCW still has concerns that community members can be removed for "disrespectful or unprofessional conduct" (188.8.131.52). We asked who would be the arbiter of this issue, and whether it could include questioning the Bureau's training and policies, or a specific officer's egregious conduct. Similarly, we asked that there be a specific number of refusals before removing a member, rather than using the term "excessive" unavailability to serve on the Board (184.108.40.206).
DIRECTIVE 310.50 TRUTHFULNESS ("Truthiness.") (previous comments June 2017)
PCW continues to support changes made to this Directive in 2017.
However, we repeat these comments we made in 2015 and twice in 2017:
--We are disturbed that Section 4 says there are limited exceptions for officers lying, such as when "deception is necessary due to the nature of the assignment, when necessary to acquire information for a criminal investigation or to protect the safety of the member or others." While the Directive limits such deceit to temporary, specific circumstances, it seems to give a lot of latitude for cops to lie to the community. As opponents of the death penalty ask "why do we kill people to teach that killing people is wrong?", one can also ask, "why do we let those who enforce the laws teach dishonest people to be honest by being dishonest?"
DIRECTIVE 220.40 LAWSUITS AND CLAIMS (previous comments made September 2017)
This Directive was entirely rewritten without the draft being put forward to the community for review. The Bureau's memo on its release states that the previous version did not reflect current practices.
The memo also describes our organization as "one community member" who raised concerns about the policy failing to prohibit officers from discouraging or retaliating against civilians who file or threaten to file lawsuits. The Bureau says those actions are covered in Directive 310.20 on retaliation; there is no reason not to cross-reference those guidelines here.
We suggested that a now-deleted section which ordered officers to tell the complainant to contact the City about filing a claim (previous Section 4.1) should suggest contacting an attorney prior to filing such a claim. Instead, the requirement has now been cut.
The revised Directive no longer requires officers to accept notice of a lawsuit if the lawsuit is (a) directed at the City / PPB and not the officer individually (Section 1), or (b) if it is not related to police business (Section 2.4).
We previously wondered why the Bureau did not re-insert a previous requirement that officers cooperate with the City Attorney, Police Legal Advisor and Risk Management in defense against the lawsuit (Section 1.5.2 from the pre-2014 version). This could mean officers are free to admit fault and work to settle the complaint directly with the plaintiff. We doubt that's what the City has in mind when they removed that provision.
The new version says officers have to inform their Supervisors within 24 hours if the suit is directed against the City / PPB (Section 1.1) but only "as soon as practicable" if it is against them individually (Section 2.2). This seems odd since it's possible the City will have received the broader suit themselves but not necessarily one targeting the individual officer.
DIRECTIVE 215.00 PERFORMANCE EVALUATIONS (previous comments September 2017)
In September 2017, Performance Evaluations were downgraded from semi-annual to annual reviews. The Bureau's memo with the final release version says the change doesn't affect the Bureau's ability to review its members. While other City employees are only evaluated annually, PCW noted that "no other job has the level of contact with community members as police officers, who often put their hands on, use force against, and sometimes arrest people." That said, the Bureau did insert a new Section (4.1.5) based on PCW's comment that the DOJ Agreement calls for review of an officer's training history semi-annually (paragraph 81). As for our comment that at least one DOJ threshold for examining use of force is based on a six month window (paragraph 118), the Bureau says that regular reviews of the Employee Information System should catch such irregularities. However, anyone who reads the Compliance Officer/Community Liaison's reports knows that the EIS is not being used as envisioned, so that is not much of a reassurance.
In several previous comments we noted that the Evaluations being barred for use as a disciplinary tool (previous Policy Section 2) makes no sense since officers with multiple complaints sustained against them (or one serious complaint) should be demoted or fired. The Directive explicitly says the evaluation will "not serve as the basis for discipline, discharge or demotion" (Section 6.1). The Bureau's memo says this is in line with the restrictions in the Portland Police Association contract-- yet another way in which the City sold out the public for $9 million and gave nothing back except for a rocky end to the "48-hour rule."
The Bureau also in its memo reaffirms its right to protect the evaluations from public record requests except as required by law (Section 7). We note again here: "information that is in the public interest including sustained misconduct allegations needs to be released. The people who repair Portland's street lights do not have the same kinds of interactions with the public as the police do. Thus their misconduct may be shielded from the public eye without the same potential consequences as officers who are found guilty of serious or repeat misconduct." The Directive should alert officers that such information might be released in the public interest.
310.20 DISCRIMINATION, HARASSMENT AND RETALIATION PROHIBITED (previou s comments June 2017)
We continue to support the sections added to this Directive prohibiting retaliation against officers who file complaints or participate in misconduct investigations and protecting civilians who participate in misconduct investigations in line with DOJ Settlement Agreement paragraph 130.
As noted in our previous comments, the word "immediately" was taken out of officers' responsibilities to report on such misconduct (Section 6.1), instead saying it has to be reported "as soon as practicable." Conversely, officers including witness officers subjected to retaliation have to report the offending officer's behavior "no later than 24 hours after the contact." This seems like an unfair burden on people who are being victimized and could result in them being disciplined for reporting it outside that time frame. The accused officer has to report contacting civilian or Bureau complainants or witnesses within 24 hours, which seems burdensome but is in that officer's best interest.
--We repeat our suggestion that Section 5.1 prohibiting officers from contacting or taking action against anyone involved in filing complaints might require that officers who recognize complainants or witnesses against them to call in a supervisor or other on-duty officer (not involved in the alleged misconduct) to relieve them from contacting such persons.
--As we noted before, Section 2.2 about discrimination says that Directive 344.05 on Bias-Based Policing prohibits police action "solely or primarily" based on someone's status (race, gender, ability, etc.). This language is appropriate but, as we noted last year and above, the word "primarily" is not currently in 344.05, but should be.
--It may be worth adding a prohibition on retaliation against the filing of tort claims and/or lawsuits, since those processes are technically different from filing complaints (see our comments on 220.40).
DIRECTIVE 338.00 DISCIPLINE GUIDE (previous comments August 2017)
Interestingly, a discussion about the Discipline Guide came up at the City Council hearing on September 5 during the consideration of the Police Review Board ordinance. Commissioner Fritz raised questions about one aspect of the guide and Commissioner Fish admonished her for questioning the guide in a public forum. This seems odd since the Bureau asks for public input, prides itself on community engagement, and has a very unique position in society with regards to its powers and protections. That said, between the last draft and now, four changes were made to this Directive-- one of which was to state "See Appendix A" in reference to the Guide. The online Directives Manual, the version up for public review, and the published final "330 series" all do not contain a link to, or physical copy of the Guide. Due to the overwhelming nature of this set of Directives, PCW is not offering comments on the Guide itself at this time, but noting that it should be easily included on the site and put out for comment with the Second Review of this policy. Through a web search, we found a version of the guide at https://www.portlandoregon.gov/police/article/482707 .
The other three additions outline how different parties are to report if they propose discipline which is outside of the Discipline Guide: Bureau members in writing, PRB members verbally (recorded by the Facilitator), and the Chief/Commissioner along with the letter imposing discipline. PCW is not opposed to these changes.
We continue to be concerned that discipline can "be modified based on mitigating and/or aggravating factors" (Policy Section 1), when the Guide is supposed to ensure that wildly different punishment isn't being doled out for different officers engaging in the same behavior. However, we still appreciate that those two terms are defined in the Directive, even if vaguely. We suggested that items which should not be considered for mitigating and aggravating factors be listed, using as an example information supervisors know about a person's personal life that have no bearing on their performance as an officer and did not come up in the investigation or review.
DIRECTIVE 333.00 CRIMINAL INVESTIGATIONS OF PPB EMPLOYEES(previous comments August 2017)
We have written repeatedly in the past questioning why Policy Section 3 states that criminal investigation procedures on deadly force situations or in-custody deaths are covered by Directive 1010.10. The Bureau's memo outlining the current final version states that Directive 333.00 is a more general guideline while 1010.10 is more specific. Examining the language carefully, PCW is comfortable with this explanation.
We raised the point that it would be easier to keep the "firewall" between Internal Affairs (IA) and Detectives "if someone other than the Portland Police investigated criminal behavior, such as an independent prosecutor's office, and/or if the administrative investigations were handed over to the 'Independent' Police Review to conduct without any PPB supervisory involvement." Perhaps as an acknowledgment of this concern, the current version has a new Section (4.1) that allows the Portland Police to call in an outside agency to investigate criminal behavior by an officer within City limits. PCW supports this addition.
We continue to urge the Bureau to allow officers to report possible criminal behavior to IPR or the Police Commissioner if they fear retaliation, where Section 1.1 only allows them to report to their supervisor, Internal Affairs or an Assistant Chief.
PCW also would like to see a re-insertion of previous Section 15 which called on supervisors to remind officers of the "ramifications" of criminal behavior and to encourage reporting by education on the Bureau's goals.
Although some clarity has been added around our confusion on how the chain of command is informed about criminal investigations, problems remain. The Directive still says an officer's supervisor is supposed to notify the A/C of investigations about criminal investigations (1.4), the Detective Division is supposed to brief the A/C within 24 hours of being assigned a case (2.1) and IA (2.2). However, the A/C is supposed to notify the IA Captain and Detective Division if a member is arrested or charged (3.2). The PPB's memo explains that criminal investigation could come from a variety of sources, implying they are just covering their bases. Thus it is odd that rather than duplicate the phrase "if IA is not already aware" from previous Section 2.2 in other places for clarity, that phrase was struck in the final version. We noted that duplication is better than lack of clarity to avoid what happened with Chief O'Dea's arrest in 2016. We asked that the Chief be required to report his/her arrest to the Police Commissioner since there is no supervisor for the Chief; that change was not made.
We also continue to ask the Bureau not to use the term "privatized" to mean "redacted" (Section 220.127.116.11.2), since the word "privatized" means taking a public entity and putting it in the hands of a private corporation. We assume this is not what the PPB intends.
DIRECTIVE 330.00 INTERNAL AFFAIRS COMPLAINTS (previous comments July 2017)
The Bureau rewrote this Directive significantly following the last draft that was sent out for public comment. To their credit, they included language requiring that as required by the DOJ Agreement, Use of Force complaints will not be subject to "Administrative Closure" (now in Section 8.1). This was suggested by PCW in July. Similarly, there is now a list of what kinds of cases cannot go to mediation, including Use of Force cases (Section 7.1.1), also a PCW suggestion. The Bureau also reinserted the terms "impartially and professionally" into the Policy Section on IA per our comments.
We are concerned, though, that IA's terminology for ending investigations is now the same as IPR's. IPR ceasing work on complaints used to be called "dismissals" and IA's were called "declinations." This made it easier to sort out which entity was responsible for shutting down the investigation. Now both are using the term "Administrative Closure," which will make these data harder to track. Combining them erases the difference between the entities and further suggests that IPR is not as "Independent" as its name suggests.
PCW continues its call for all Disparate Treatment allegations to be investigated.
Section 2.1 contains several troubling provisions. Most striking is Section 2.1.3 which allows a supervisor to contact a community member to clarify why they felt an officer's actions were inappropriate. This was probably written by someone who does not appreciate that a person who feels they have been harmed by the police in most cases does not want to be contacted by the police. This is one reason the community keeps pushing for IPR to be a truly independent review body. Such follow up should be done from the IPR office by default unless the community member asks for the Supervisor to call. PCW apologizes for not noticing this provision (old Section 2.1.2) previously.
Section 2.1.2 suggests that officers intercept a person's complaint before sending it to IA to be sure the complaint includes allegations of misconduct. This determination should be made by IPR, not anyone associated with the Bureau. The desire to streamline the process should not result in people being discouraged from filing complaints-- or complaints being misinterpreted as less than meaningful.
New Section 18.104.22.168 is written in an illogical way, stating that if a community member wants to file a complaint in writing, the PPB will make a form available. Instead it should say PPB shall have forms available so that people can file complaints in writing.
While it apparently reflects work related to the DOJ Agreement, the various intake points for complaints seem to increase the likelihood that IPR will be bypassed, now that they are no longer listed as the single point for intake. Section 1.1 used to say IPR was responsible for receiving and numbering complaints, now they "have a role" in those actions.
PCW is also concerned that a new Section (5.3.3) allows IPR to ask for help from Internal Affairs during an "Independent" investigation. Though that sentence should clarify the reason for our concern, we will spell it out: If IPR is independent of the Bureau, they should not be relying on them during investigations the community expects to be done by an outside agency.
Another alarming new section states that changes to a complaint's outcome as a result of collective bargaining-related actions may or may not be relayed back to the complainant (Section 12.2).
We still do not understand why Supervisory Investigations include complaints that could result in discipline, where discipline is Command Counseling (Section 6.1 and 331.00, below).** The point of these less-than-full investigations was to handle low level complaints with no discipline attached.
It's also not clear why the current version still did not reinsert the provision that actions prior to investigation attempting to resolve the complaint be documented (previous Section 5.1.5).
We appreciate that the Bureau responded to our concerns about dismissals based on failure to identify officers. Rather than saying "a reasonable investigative effort would not" be able to identify a cop, Section 8.1.5 now requires a documented effort to do so.
The Bureau also cut former Section 9.1.8 saying IA could decline a case because they have to focus resources on "more provable complaints," another suggestion by PCW.
We are still concerned about:
PCW also appreciates these new sections and edits, which again were added without being posted for comment ahead of time:
--New Section 3.5 talks about formulating allegations, including that they must reflect the
complainant's concerns, and might change as the investigation goes on.
** In our previous comments we mentioned Letters of Reprimand, which are actually one step up the discipline ladder from Command Counseling, thus are not involved in cases assigned as Supervisory Investigations. PCW regrets the error.
DIRECTIVE 331.00 SUPERVISORY INVESTIGATIONS (previous comments July 2017)
PCW continues to suggest that minor rule violations not rising to the level of discipline should be called "Non-Disciplinary Complaints" (NDCs). In fact, Captain Jeff Bell used this term at the City Council hearing on September 5 to describe "Supervisory Investigations." We also are confused by the Bureau's assertion in its release memo that Command Counseling, which can be the result of misconduct investigation if an NDC is not handled as a Supervisory Investigation (SI), is not considered discipline (see Definitions and new Section 2.1). It is listed as such in IPR's annual reports and is usually referred to as the lowest level of discipline. The Bureau refers to it as "corrective action."
In our last comments, we noted there were no definitions for the findings in SIs. The current Directive includes two findings which do not match either deadly force (In Policy/Out of Policy) or other administrative investigations (Exonerated/Not Sustained/Unfounded/Sustained). The findings are "substantiated" which is the same as Out of Policy/Sustained, and "unsubstantiated" which is the same as the other three possible findings in a full investigation. This seems terribly confusing and unnecessary; moreover it is probably good practice for line Supervisors to use the same findings as RU Managers if they are going to be proposing findings on more serious cases.
On that note, the current Directive still says the RU Manager should review the Supervisor's findings before they are "disclosed" (Section 3.2) but cuts the old version's requirement for the line Supervisor to share the findings with their Manager (Section 4.7). As we noted before, the Directive does not give guidance on what happens if the RU Manager does not approve of the Supervisor's proposed findings.
In our previous comments, we hoped that Internal Affairs would keeps records of the NDCs and their outcomes for 7-10 years as required by Directive 332.00, even if they are not placed in officers' personnel files (Section 22.214.171.124). The Bureau's memo says findings are entered into the Employee Information System, but the Directive's new Section 4.10 only requires the Supervisor's discussion with the officer to be put into the EIS. PCW continues to be concerned that NDCs are designed to silence complainants who wished to see full investigations, as there is no requirement that the civilian involved approve the case handling or the outcome, only that the Supervisor make a "good faith effort" to contact the complainant during the investigation (Section 4.3) and explain the resolution of the complaint (Section 4.8). Supervisors are required to document their efforts to talk to the complainant (Section 4.3.1), though that seems to apply only to the investigation and not the outcome.
We continue to support Policy Section 1 and Procedure Section 2.4.2 which mention the IPR being involved in needing to approve of NDCs. The Directive says IPR will "review" the case memo before the investigations are closed, again not indicating what happens if they disagree with the findings (Section 2.4.2). The public should be informed of who reviews these cases, since "Supervisory Investigation" makes it sound as if nobody else looks at the complaints.
The Directive still doesn't seem to take into account if the complainant is a fellow officer, though perhaps the same procedures apply. It also is unclear what happens if a minor rule violation is reported to a precinct or the Police Commissioner as outlined in 330.00.
One final note, which applies elsewhere but seems worthy of mention here. The Bureau added the phrase "to the extent permitted by law" to the Section (4.8) in which the complainant finds out the resolution of their own complaint. An open and transparent government has no right to keep the person who feels harmed from learning what happened to their complaint. The PPB and City Council should work to change any state law restricting such information being shared.
DIRECTIVE 332.00 ADMINISTRATIVE INVESTIGATIONS (previous comments July 2017)
Some changes were made to this Directive after the last time it was sent out for review. These include:
--adding that an "In Policy" deadly force finding can also include a debriefing (Definitions).
PCW supports these changes, though it's unclear why the IPR/Chief section doesn't address their ability to controvert the proposed findings. It also likely would help to define "vulnerable populations." To us this includes people of color, houseless persons, LGBTQ persons, immigrants, refugees, people with disabilities and political protestors.
Other changes include:
We are not sure why these changes were made and hope the Bureau will explain.
The last draft of this Directive listed only two possible findings, "Sustained" and "Not Sustained." As noted in our comments on 335.00, PCW appreciates that the Bureau reinstated the four possible findings, with the caveat about the name of "Not Sustained" and definition of "Unfounded."
The Directive still includes language about an "investigator" including recommended findings in their packet to the officer's Supervisor (Sections 2.1.9, 2.1.10). However, Section 2 seems to focus on Internal Affairs investigators. It should be explicit in the Directive that IPR investigators can also send forward such recommended findings.
It's still not clear whether the Commander controverting the IA recommendation triggers a Police Review Board hearing, as would happen if IA controverted the Commander (126.96.36.199). We noted before that if the case has to go back to IA again, it will just result in more unnecessary delays.
Also, as we mentioned in our 2017 comments:
DIRECTIVE 334.00 PERFORMANCE DEFICIENCIES (previous comments August 2017)
In our previous comments on this Directive, we wondered why the Independent Police Review (IPR) or Internal Affairs (IA) would not have a larger role in looking at patterns of performance problems. The current version seems to cut out IPR from the ability to review completed investigations (old Section 2.6.8) even though they still have to be informed the investigation is happening (Section 3.1.4) and sign off on the recommended findings and discipline (Section 5.2.2). We strongly believe IPR should also review the investigation before it moves on for findings (likely in Section 4.3).
Several changes were made to this Directive before it was finalized, including:
PCW has no problem with these changes.
There is a slight problem with the renumbering of what was Section 5.3, saying that the RU Manager and Assistant Chief cannot take action until IA has signed off on the findings. Similar language was struck from the RU Manager's responsibilities in 5.1, and this language is now included under the IA's responsibilities in 188.8.131.52. For clarity, it should be moved back out to its own section.
We noted earlier that the package to be submitted by the RU Manager previously specified its contents (investigative report, interview recordings, transcripts and exhibits-- old Section 2.6.7) but now only asks for "development of proposed findings" (Section 5.1.1). The fuller description is much more useful.
Also see our comments on Directive 330.00 for our concerns about the definitions of possible findings.
DIRECTIVE 310.00 PROFESSIONAL CONDUCT AND COURTESY (previous comments June 2017)
This Directive has not changed since the last version was published in June 2017. Therefore we repeat our earlier comments here, with some edits.
--As we noted before, the policy (in "Procedure" Section 1.1) that officers should "not commit any
act tending to bring reproach or discredit on the Police Bureau" should give some examples. We
suggested these items:
We noted that many officers are never held accountable under the previous and current Force Directives might, with this added language, still face discipline when their violent behavior causes community outcry. We added that discipline in such cases is not a replacement for firing or jailing officers, but since neither seems to happen (or stick) in force cases, the Bureau would do well to apply this Directive appropriately.
--Section 1.3 still contains the prohibition on officers disparaging Bureau policies. We asked in previous comments whether the Training Division officers who provided Taser training were held accountable for making such disparaging remarks in 2016 (as noted in the Compliance Officer /Community Liaison Q3/Q4 2016 Compliance Report).
--The Policy Section emphasizing respect for various persons of protected status should include political beliefs. This is all the more important since the PPB has repeatedly, since June 2017, over- policed anti-fascist protestors and under-policed or ignored alt-right protestors.
---Section 2.2 on use of profanity says use of profanity will be judged on "the totality of the circumstances in which it was used." It is curious, then, that the PPB's memo explaining their reluctance to outright ban profanity refers to language from an earlier version in which it says officers can swear to "establish control." The use of profanity generally tends to escalate, rather than de-escalate situations. As we have written before, those who seek a professional police force do not want to leave wiggle room for exceptions to the Directive's statement that "the use of profanity is generally prohibited." We continue urge the Bureau to either outright ban profanity or at least re- insert language making clear its use should be extremely rare.
---Section 2.3 prohibiting use of epithets against persons of protected status should, as we suggest for the Policy Section, expressly include "political beliefs."
315.00 LAWS, RULES AND ORDERS (previous comments July 2017)
There were only a few minor changes to this Directive after the last posting.
The most significant one is that a "knowledge check" about the content of Directives will be done when the PPB finds it appropriate-- clarifying the old version's "when appropriate" for presumably wise-acre cops who wanted to decide for themselves (Section 3.1.1).
PCW earlier thanked the PPB for the part of Policy Section 1 which clarifies Bureau members have to follow the same rules as everyone else, even though we could point to numerous examples of laws and Bureau rules that give officers "special rights." We asked the Bureau to re-insert the admonishment to follow these laws both on and off duty, which has not been done.
We also acknowledged that Section 5.1 says officers only have to obey "lawful" orders from their superiors. This is particularly significant in the response to protests of late, where PCW has pointed out that the Nuremberg Principles should allow officers to refuse to impose collective punishment on a civilian population (as outlined in international law).
We continue to have concerns that the Bureau's / City's position is that the Portland Police Association's Collective Bargaining Agreement can over-ride Human Resources rules (Section 4.2). The Bureau's cover memo upon release of the finalized Directive says this does not allow officers to violate any laws; we disagree. When officers are able to get away with killing people-- including unarmed people-- over and over again, and be reinstated to the job even after being fired, there is a problem.
Once again we thank the Bureau for seeking for community input, and to the extent that some of our comments have been addressed, for taking our advice seriously. We repeat here our deep concern about publishing so many important policies at one time, during a holiday season. We continue our struggle to see a Bureau free from corruption, brutality and racism, which is the basis for our participating in this process. As noted before, while we don't always agree with the Bureau's reasons for rejecting certain recommendations, it is helpful to be receiving them.
Thank you for your time
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Posted September 14, 2018