Portland Copwatch Analyzes Compliance Officer Report on US DOJ Agreement October 2020Table of contents
Protests Take Center Stage in Failed Compliance
Issues of Race Still at the Back of the Bus
Other Areas of Interest
More Budget References
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To: Compliance Officer/Community Liaison
ANALYSIS: COMPLIANCE OFFICER FINDS PPB FAILED TO MANAGE FORCE,
October 27, 2020
When Portland Copwatch (PCW) analyzed the second quarter 2020 Report about the Portland Police compliance with the US Department of Justice (DOJ) Settlement Agreement, we noted that the apparent misuse of force at protests would likely cause the City to be found out of compliance. That prediction partially came true in the Compliance Officer/Community Liaison (COCL) third quarter Report, where indeed Dr. Dennis Rosenbaum found the City was not living up to its agreed upon standards for Use of Force or Training. However, the force issue mostly has to do with the lack of finalized reports about what has been occurring at the ongoing Black Lives Matter demonstrations. It is not about findings of excessive force-- which haven't been made yet, because the oversight system gets six months to investigate... and the protests began four months before the Report was written. While it is encouraging that the COCL again expresses support for the broad idea of examining racial justice, their solution to some of the problems is to suggest throwing more money at the Police Bureau. This is in deep contrast to the messages of protest leaders, who have fairly universally called for defunding police and reinvesting that money in human needs.
Regardless, it is not clear whether the DOJ will agree with the COCL when they report to federal Judge Michael Simon in early 2021. The DOJ is the final arbiter of compliance. While it is crucial that the City not be allowed to backslide on its commitments, the City's mantra of "we have to wait until the Settlement Agreement ends to make other changes" needs to be addressed to ensure that both the federally mandated reforms and community demands can be met at the same time. On that note, the COCL strangely offers their technical assistance to implement the new review board that will be developed if Ballot Measure 26-217 passes on November 3. Since they have paid very little attention to the current oversight board (the Citizen Review Committee) over the last five years, PCW would not advise spending City resources on such advice.
One of the key findings of the Report is about a video showing an officer hitting a protestor in the head and walking away in a huff. The COCL remarks that the Bureau thought the head strike was unintentional, and the "Independent" Police Review (IPR) thought it was just a "push." The Compliance Officer rightly says that a hit to the head with a hard object is deadly force and should be investigated as such.
However, while highlighting the fact that the Agreement does not differentiate between force used at protests and other more "routine" uses of force (p. 12), the COCL seems to feel it is reasonable not to include protest force in their baseline finding. They use the "force to custody ratio," which they say has gone up from 3.5 to 4.1% because there are similar applications of force but fewer overall police-community interactions. Given that thousands of uses of force have been doled out on demonstrators with an unknown ratio of those related to the hundreds of arrests made, it would seem that number would be much higher.
It's not clear whether the COCL was being intentionally ironic when writing that they are not optimistic due to the tensions between the community and the police coming from "both sides of the fence" (pp. 10 and 55). It may be this out-of-towner (originally from Chicago, Rosenbaum was last reportedly living in LA) did not realize that literal fences set up around the "Justice" Center and Federal Buildings were flashpoints of demonstrations against police brutality.
Aside from blaming the lack of compliance generally on the protests, COVID and the "poorly timed" reduction in the PPB's budget (p. 27), the particulars of the COCL's problematic analysis of the PPB budget include:
1- focusing on an online article that says Portland has the 49th lowest police budget of 50 big cities by percentage-- 4.4% (pp. 4, 7 and 27), rather than looking at the raw numbers which show Portland has the 31st highest budget in terms of raw dollars, at $245 million.*-1
2- Noting that Sergeants are now overseeing 4.84 officers each, down from 5.21 officers, the COCL concludes the Bureau needs to hire more officers-- rather than reduce the number of Sergeants (p. 12). Paragraph 71 of the DOJ Agreement requires the PPB to maintain "adequate patrol supervision staffing" including 15 Sergeants who were hired in 2012. However, the basis of this paragraph is the concept of "span of control." In other words, if the City decides to have fewer officers, this paragraph would not likely be enforced to the letter.
3- They call for more personnel to be hired to staff the Training Division, noting that most of the trainers were called out to the "front lines" of protests (p. 27). They do leave open the possibility that the PPB made the wrong choice to send those officers out rather than staffing the Division to run "in service training" as required by the Agreement. PCW would unequivocally say if the Bureau was making proper management decisions and not sending out so many cops to repress the public, some of these shortages would not be an issue.
There is no mention, however, of the reported $117,000 spent on crowd control munitions between the end of May and the middle of July (Oregonlive, September 6).
Meanwhile, the Portland Committee on Community Engaged Policing (PCCEP) has continued to crank out more recommendations and stand up for community concerns. Their one big failing-- not flagged as problematic by the COCL-- was voting not to vote on whether they support metrics suggested by the Albina Ministerial Alliance Coalition for Justice and Police Reform*-2 and the Mental Health Alliance, known as the "amici" (friends of the court) to the Agreement (p. 48). These metrics were requested by Judge Michael Simon in the February 2020 hearing. At that hearing, he delayed for a second time a decision about whether the PCCEP's structure is "fair, adequate and reasonable" to remedy the Bureau's pattern of excessive force.
For the third time in a row, the Report's tables and charts do not truly show how much force is being used. The COCL hasn't ever asked people who've used the complaint process how they feel about the experience.
The Report, which can be found at https://www.portlandoregon.gov/pccep/article/766974 , generally continues to ignore ongoing issues around race (despite the COCL's great awakening after George Floyd's murder), other significant lapses in compliance (such as the Bureau's annual report for 2019 not being ready as of October 2020), and the use of deadly force against people in mental health crisis-- the focus of the DOJ Agreement. Below we look at these issues and others in an analysis of the Report. Page numbers appear in (parentheses). References to paragraphs of the settlement agreement are in [brackets].
As noted above, the Compliance Officer's assessment that the City is not meeting its obligations to the DOJ is related to the lack of reporting, rather than the amount of force used in recent protests. However, it's important to note that an After Action Report (AAR) about one protest covered 550 Force Data Collection Reports (p. 12).*-2a The reason the PPB says no AARs were completed by early August-- and only a handful were ready by mid-September-- is that multiple actions involved over 100 uses of force (p. 14). The COCL admires the Bureau's plan to split up the work so that one Sergeant does not have to review 100 Force Reports. Perhaps it would also be good to suggest that **if the cops used less force there would be less paperwork to do.***
Echoing some of the unprecedented language we noted from the Q2 Report, the COCL does express general support for the efforts to battle "injustice that has occurred over the past 400 years" and how the "long-standing racial injustice in our country's criminal justice system is being exposed" (p. 3). They name check John Lewis and his famous quote about getting into "good trouble," admitting civil disobedience is meant to make the status quo uncomfortable. Subsequently, the COCL's language about support of nonviolent protests seems to follow the trend of that same "status quo" who are uncomfortable with the property damage that's been part of the uprising. To be clear, many nonviolent protests have included property damage, including peace activists who hammered on the nose cone of a nuclear missile. The Compliance Officer does note that there have been "questionable actions" by both community members and the police. Since it is the jurisdiction of the COCL to scrutinize police behavior here, the tactics of the protestors is not relevant to the Report. To put it more plainly, the PPB has exposed themselves as being willing to be outrageously brutal while under investigation for using too much force. No irony is noted that the protests are being subjected to the very police violence to which the demonstrators are objecting.
One question that arises is that if the Agreement requires Sergeants to go to the scene when force is used to investigate possible misconduct [paragraph 70], why is that not being done at protests? Even if the excuse is either that there is too much activity to be able to interview officers and witnesses, or that Sergeants are involved in the crowd control operations, this leaves a loophole bigger than a truck can drive through. Regardless, PCW has repeatedly suggested that on scene investigations should be done by civilian investigators, and continues to make that suggestion as a new oversight board (and/or revisions to the current one) will likely materialize in the coming months.
One side effect of the missing After Action Reports*-3 is that the Bureau was not able to conduct the Force Audit required in the Agreement (p. 15). To be clear, Paragraph 74 requires the Force Inspector to work with the Compliance Officer on such audits. The Bureau deliberately skipped doing such an audit in June. At the COCL Town Hall on October 14, it was noted that the Bureau contacted the DOJ to say they were skipping this audit, but that the DOJ did not approve-- or disapprove-- of this clear violation of the Agreement.
In terms of holding officers accountable, the COCL is unable to say whether the City has followed the Agreement because under its terms they have 180 days to complete misconduct investigations [paragraph 121]. They say that the IPR, which does the initial intake of complaints and generally is supposed to investigate crowd-related complaints, turned over about 1/4 of these cases to Internal Affairs, or IA (p. 44). The Report also claims that the process is being hampered by civilians who are not willing to cooperate with the City, but fail to mention how a broad policy allowing officers to wear untraceable identification numbers rather than name tags has made accountability difficult if not impossible. Furthermore, even though the COCL repeatedly expresses the opinion that the Bureau is underfunded, they do not make any suggestion to boost funding to IPR-- which has just six investigators, compared to IA's eight (p. 41).
The COCL says they pointed out four online videos of possible misconduct at protests to IA, who had not found those videos (p. 17). While we have mixed feelings about the police trolling the internet to look at protest videos, it is interesting that the mostly cop-friendly COCL took this step. They report that the Bureau is trying to meet with the "grenadiers" (yes, those who launch less lethal weapons into civilian crowds have the same title as people who launch grenades in war) so officers can self-identify as those involved in complaints. Best of luck with that, really!!!
Some good news about accountability comes with the COCL's acknowledgment of officers who were removed from policing protests while being investigated for excessive force, which they say both meets community expectations and is a "best practice" (p. 18). However, they predict that officers will likely be flagged by the Employee Information System-- not for passing the threshold of using force three times in a 30 day period, but rather for being "assaulted" multiple times (p .36).
As noted above, the Agreement does not differentiate between force at protests and when used elsewhere, yet the data on force at protests is separated out in the Bureau's quarterly Force Reports. In our analysis of the Q2 COCL Report, we noted that these reports about protests show "6 uses of force in Q2 2018, 189 in Q3 2018 (including 83 launched projectiles and 31 "distraction devices"), 10 in Q4 2018 (all launched or hand tossed projectiles), 5 in Q2 2019 (3 pepper spray) and 49 in Q3 2019 (2 pepper spray)." It will be interesting to see how different the data are for Q2-Q3 2020.
The Agreement requires the Professional Standards Division to notify the Behavioral Health Unit (BHU) if any officer acting as part of the Enhanced Crisis Intervention Team (ECIT) receives complaints about use of force, as it could disqualify them from the Team. If "all hands on deck" means every available cop has been at these protests, doesn't it stand to reason that many of the ECIT officers could soon be prohibited from engaging in de-escalation encounters with people in mental health crisis?
Because the DOJ jettisoned clear and convincing evidence that Portland Police use force against, enforce laws against, arrest, shoot and kill African Americans at a disproportionate rate, the question of race is barely referenced in the Settlement Agreement. And as much as they repeat calls for racial justice, the COCL team does little to help bring the issue into focus. They refer to a report created by the Training Advisory Council (TAC) which, using the PPB's own statistics, points out the "force to custody" ratio and use of deadly force for African Americans show disparities compared to other Portlanders.*-4 The COCL is paid hundreds of thousands of dollars a year and the TAC produced this report as volunteers.*-5
In our 2nd Quarter Report analysis, PCW noted the City was getting ready to implement changes to the form police are required to fill out when conducting traffic and pedestrian stops, though there was no public discussion of these changes. The new Report indicates that these changes are now on hold due to the Mayor's suggestion that consent searches only be done if a person signs a form agreeing to waive their right to refuse the search (p. 54). It would be great to take this extra time to ask PCCEP, TAC and the larger community whether the stop data collection being proposed are thorough enough.
The COCL does not seem too concerned that the annual stop data report for 2019 has still not been published by October 2020, claiming the holdup has to do with data they asked PPB to include. However, those data were included in the 2018 report, which came out in November 2019. In other words, adding that information is nothing new and should not have delayed publication. The Compliance team does note that "Black drivers continue to be over-represented in PPB traffic stops" and that the percentage of stops for those drivers went from 16.8% to 18.4% between the first and second quarters of 2020. The COCL states for comparison that Portland's African American population is just 5.8%-- a data point the PPB have been reluctant to put into their quarterly and annual Use of Force reports. The COCL does not mention that the promised analysis of the Gang Enforcement Team/Gun Violence Reduction Team (GVRT) stops from 2018 was never produced. But, the COCL's Report points out that the stop data for 2020 may show a drop in disparities following the dissolution of the GVRT in June. Previous data show that Black drivers made up roughly 60% of GET (predecessor to the GVRT) stops.
In the last Report, the COCL revealed that the Bureau had reconstituted a Latinx Advisory Council. PCW wondered whether that was done over the objections of those who disbanded the old Hispanic Police Advisory Council in 2002 as a protest after officers who shot Jose Mejia Poot the previous year were given awards. The Q3 Report indicates that the new Advisory Council has been meeting since May, "addressed past problems" and "are now moving ahead" (p. 51).
The Bureau also now has an umbrella "Inclusive Advisory Council," which according to the Report has not yet had anyone present to them about the Black Lives movement (p. 52).
The Report goes into details on the various parts of the Settlement Agreement. PCW found noteworthy and/or alarming information among the areas of deadly force, training, oversight, crisis intervention and community engagement.
Some issues that rise to the top of that list:
--485 officers did not receive the minimum state mandated training that was scheduled for this year (pp. 7 & 20). While it is tempting to assume this means these officers can no longer be a part of the force, the Bureau stated at the October 14 Town Hall that the requirements have to be met within a three year period, not annually. The COCL should examine whether any of the 485 were already in year three when COVID shut down the training.
--Three officers who were unable to finish watching training videos were not allowed to patrol the streets (p. 24).
--The COCL gives a pass to the PPB on the required audit of training, saying that the review of the annual training needs assessment and evaluation reports are an "informal" audit (p. 25). This is particularly self-serving as paragraph 85 of the Agreement requires the COCL to help with these audits.
--The PPB's annual report, which has ostensibly only been presented as required under the Agreement [paragraph 150] one time since 2014, is not ready for publication yet (p. 54). Last year's report was run by the PCCEP in June 2019 for August and October public presentations.*-6 In other words, it is now at least four months behind schedule, yet the COCL finds the City in compliance with the entire Community Engagement section. They blame the report's delay on the protests and issues with telecommuting (p. 55).
--The PPB received special "CIU NTR Alarm Response Training" about the "Reed [College] Research Nuclear Reactor" (p . 25). It's easy to forget that although the (much larger scale) Trojan Nuclear Power plant was shut down many years ago, we still have a nuclear reactor within the City limits.
Here are other issues by category.
__________Deadly Force and Mental Health
--The COCL barely mentions that a Portland Police shooting occurred on June 28, just before the end of Q2, only to say that the proper protocols seem to have been followed during the investigation (p. 46). They don't note that Grey Tristan Stockton had disabilities and likely mental health issues when the police shot at but missed him. Since force against people who may be in crisis is the main focus of the Agreement, this is a remarkably cursory summary.
--They allude to the case of Koben Henriksen (but spell his name wrong), who was killed by the PPB while in crisis in December 2019, in order to talk about three incidents from April and May in which officers did not use deadly force against people who were carrying knives (p. 32).*-7 Just because billions of people eat at McDonald's with no problem doesn't mean we should ignore it if a few die of food poisoning.
--The section requiring the City to take action around mental health is once again found in full compliance, even though the COCL repeats their confession from the Q2 Report that they are not qualified to determine whether the Unity Center is properly functioning as the drop-off/walk-in center called for in the Agreement (p. 29).
--New recruits were unable to participate in live action role playing scenarios from March until September, but the Bureau says they will be able to finish that in-person training by the end of the year (p. 21).
--Meanwhile, the majority of existing officers did not complete the 40 hour annual required "in service" training, and instead have to make up for it somehow in 2021. Only about half of that training content was put online, while the rest mostly needs to be done in person. The "needs assessment" for new training in 2021 was supposedly presented for public feedback in July but it's not clear where that was done or who gave input (pp. 20-21).
--PPB is conducting anti-racism training in the last quarter of 2020 and an eight hour "active bystander training" to encourage officers to intervene and prevent situations like the death of George Floyd (p. 23). The COCL called for such training in the Q2 Report.
--Most of the evaluations that were interactive during pre-COVID in person training are not able to be done using online training (p. 23).
--The COCL says that they audited 20 cases of "non-protest force" including "corrective action." Since it is extremely rare for there to be a finding of misconduct in a use of force case, they should have explained why discipline was considered (p. 12).
--While acknowledging that the behind-closed-doors Police Review Board (PRB) hearings on officer conduct and discipline are redacted in reports, they continue to call those inadequate documents proof of transparency (p. 44). This may be in part because as consultants, unlike the public they were allowed to observe a PRB hearing via the internet in September and comment on the proceedings (p. 46). The COCL adds that the "Independent" Police Review has posted data online, then calls the entire oversight system "largely" transparent.
--Ignoring a comment we made about the Q1 2020 Report, the COCL continues to consider "expediency" one aspect of a valid oversight system (pp 9 & 40). We agree that "timeliness" is important but "expediency" implies speed over accuracy.
--PCW has repeatedly noted the lack of detailed attention to the IPR's Citizen Review Committee (CRC) in COCL Reports. This one is no exception, relying on observing past hearings and reading the minutes of the group, the social scientists conclude that CRC is "fair and impartial" (p. 45). This despite the fact that CRC hearings are now held online. The Report does not note that CRC held their first two appeal hearings since January in August and September.
--Though this Report covers Q3 2020, they note that no cases went to City Council in Q2. This is in part because the only case CRC heard before that in January was sent back for more investigation, an observation that could have been included in the Report.
--The COCL attempts to call out CRC members for not adhering to their "standard of review" which requires them to defer to the Bureau's finding if a "reasonable person" given the evidence could agree with it. They take issue with members saying that "both sides have merit" (p. 45). However, in order to assess whether a reasonable person can make a certain decision, that line of thinking is not in and of itself inappropriate.
--The Employee Information System (EIS) still has not excluded lower levels of use of force to assess whether certain units/divisions are using more force than others; this is now the third time the COCL has made a reasonable request to do so (p. 38).
--After years of Portland Copwatch wondering what constitutes "traumatic events" (which can trigger warnings in the EIS), the COCL finally defines them on page 36 of this Report as incidents related to child abuse, deadly force, homicide, officer assault, suicide or traffic-related deaths. As noted in our comments on the Bureau's policy on leaves of absence due to such incidents, the list should also include sexual assaults.
--The Report says that if 911 dispatchers send a caller to the County crisis line rather than to police, but the call comes back for police attention, the dispatch center checks to see whether they initially made the wrong decision (p. 31). But there's no indication of where the data are to answer that question.
--Portland State University has long promised to evaluate the ongoing over-rated Service Coordination Team, but that study still is not completed (p. 33). Also, the number of referrals to the SCT-- which only gets treatment to people if they are arrested repeatedly-- dropped precipitously under the pandemic.
--PCCEP staff seems to be behind on processing a number of documents. For example, Committee meeting minutes are supposed to be posted within 10 days, but the COCL only found June minutes posted by the end of September (p. 49). Also, staff had promised for months to create a chart of all PCCEP's recommendations, which also wasn't done before the Report was posted.
--The COCL notes that the City did not respond to several of PCCEP's recommendations made in June (p. 48), despite the City's promise to respond within 60 days. After the draft Compliance Report was published, the Mayor signed off on a flurry of PCCEP recommendations on or around October 14, with several caveats.
--The COCL goes into unusually specific details about whether the PPB has met the goals of its Community Engagement plan, in the context of saying that the Bureau was supposed to do their own assessment by October (pp. 50-53). Perhaps the COCL sees this as part of its assessment of the Bureau's fulfillment of the Settlement Agreement, but instead it seems they did the Bureau's work for them. It would be better for the COCL to see what the PPB claims to have done and then review that for accuracy. The Agreement only requires the PPB to come up with a plan.
--Part of the assessment of Community Engagement is that the Bureau held community listening sessions, which the Report implies were attended by mostly white audiences. The COCL writes that "Given different histories, as well as cultural or language differences, groups brought their own experience with racial injustice, but sought to better understand and be mindful of the historical and current patterns of discrimination against Blacks in the United States" (p. 51).
--A confusing section describes that the public can sign up for a "Trackit system for complaints and commendations," which the Bureau then forwards to "appropriate units" (p. 52). It is not clear what this means.
In addition to the COCL's focus on expanding the PPB budget as noted in the introduction to this analysis, there are other such suggestions sprinkled through the Report, including:
--on p. 18, they suggest that adjustments to the Training Division will "require resources."
--on p. 28 they say that "the proper funding of PPB's Training Division should be one of the City's highest priorities and it should not depend on the status of PPB's overtime budget," and that the transition to online learning "will not succeed without the proper funding for IT staff, instructors, software, and equipment."
--The COCL team makes reference to the fact that their budget advice flies in the face of community de-funding demands. On p. 4 they write "We have no interest in challenging those who are asking Portland to rethink the role of police and police services, but at this moment in time, the COCL's job is to determine whether the City and PPB have delivered the services that were required in 2020 under the Settlement Agreement." They then cite Paragraph 7 which says "The City shall be responsible for providing necessary support and resources to enable PPB to fulfill its obligations under this Agreement. The improvements outlined in this Agreement will require the dedication of additional funds and personnel." But again, interpreting the current situation as a violation of that requirement comes from a narrow view that the PPB has been appropriately assigning police officers to attend to true public safety issues. Proper decision-making about when and where to deploy police goes hand in hand with budgetary decisions.
--In their Q2 2020 Report, the COCL called upon the Bureau to limit the use of tear gas. There is no mention that the Mayor banned its use in Q3.
--The COCL refers to the Training Advisory Council's working group on the Bureau's Public Safety Support Specialists, but uses the demeaning (and undefined here) term "PS3" (p. 26).
--On that same page, they refer to "(citizens)-initiated calls," which should probably say "community member-initiated."
The timing of the Compliance Officer's decision to find the Bureau out of policy raises many questions about what will happen over the next few months and years. The Agreement requires one full year of compliance before the City is released from its terms. Many times, the Agreement has been used to squash efforts at change, including the CRC's deferential standard of review, even though the DOJ has said that making things stronger is not a violation of the Agreement. This is particularly important to keep in mind as a new oversight system is expected to be voted into existence on November 3. Should the Agreement be extended until the City can be in compliance for a full year, that might delay the hiring of an analyst which PCW suggests be hired by the PCCEP to replace the Compliance Officer in the future.
Who gets to be President could also affect the next steps, as the Trump administration's DOJ has not taken a strong interest in reforming police. Regardless, the community keeps pushing for and expecting changes including more officers being held accountable for misconduct, the end of racially (and politically) biased policing, and redirecting funds for human needs.
It is interesting that the COCL paints a picture of the officers being demoralized and exhausted by the protests (pp. 10 & 55). We hear on the one hand that they are willing to be partners in reform, but on the other hand that they think they are fighting with one hand tied behind their backs. The COCL also insightfully notes that Portland has gone through six police chiefs in six years. Locally, the election could also bring about a change in who is the Police Commissioner, which then could affect yet another turnover in the Chief's seat.
Whoever takes charge on whatever level, management of how officers are deployed, how city dollars are spent, and whether this city will head toward totalitarianism or mutual aid rests in the hand of those who decide Portland's future. We hope it will be a future where everyone can thrive, and everyone can go home safe at night.
*2a-Because the COCL's report was ambiguous, PCW interpreted the sentence: "Only a single AAR was included in the production and, while approximately 550 FDCRs were included, the materials provided did not include information for each day of protests nor a sufficient representation of all days of protests" (p. 12) to mean the 550 reports were related to the AAR. The COCL later explained they were not. PCW apologizes for the confusion. However it does not take away from the fact that police used force at least 550 times at protests in 2020.
*4- TAC's report is at: https://www.portlandoregon.gov/police/article/763834 . They also provided an overview of forc e use https://www.portlandoregon.gov/police/article/765707 .
*5-TAC also did something Portland Copwatch has been suggesting for years since the PPB redefined what uses of force have to be considered in data collection reports: they took out the new categories to see whether the old categories of force have shown reductions (they have). https://www.portlandoregon.gov/police/article/765706 This is another analysis the COCL could have done themselves using their hefty payday instead of leaving it to volunteers.
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Posted October 27, 2020, updated November 11, 2020