Portland Copwatch Analyzes Compliance Officer Report on US DOJ Agreement November 2023

To: Compliance Officer/Community Liaison
US Department of Justice
cc: Hon. Judge Michael Simon
City of Portland
Portland Committee on Community Engaged Policing
AMA Coalition for Justice and Police Reform and other community organizations
News media

an analysis by Portland Copwatch, November 12, 2023

In mid-October, the Compliance Officer/Community Liaison (COCL) published a draft analysis about the City's progress in Q2 2023 toward implementation of the 2012 Settlement Agreement between the US Department of Justice (DOJ) and the City of Portland.*-1 That Agreement calls for the Portland Police to use less force against people, particularly those in mental health crisis. Two new paragraphs, regarding the full investigation into excessive force allegations and the hiring of a civilian training "dean," were moved into "Substantial Compliance," leaving just 21 paragraphs unfulfilled by the COCL's count.*-2 As is often the case, some specific details provided by the Report are alarming... that is, if you're a concerned community member and not a bureaucrat. Both the new COCL Dr. Tom Christoff and Jonas Geissler of the DOJ shrugged off concerns about a case discussed in the Report in which three officers fired Tasers at a suspect simultaneously, which was a result of their not following training. Apparently, their actions weren't considered violations because they did not intend to use multiple weapons at the same time. Thus, with the same kind of a shrug these oversight bodies express when the community is outraged by a deadly shooting, the world moves on. For all the changes the DOJ has brought, the underlying tension between people who think police should not use violence and those who only want to be sure the violence is "constitutional" remains.

That said, the COCL continues to probe ongoing problems such as inadequate hearings by the Bureau's Police Review Board (PRB, paragraph 131), not having a consistent way to identify and counsel officers who use substantially more force than others (116-117), and, to some extent, the ongoing disparity in how many Black drivers are pulled over by the PPB (148).

Developments in Q3 and Q4 2023 are mostly not included in the Report, but Portland Copwatch (PCW) thinks it's significant that the Behavioral Health Unit Advisory Committee (BHUAC), which received a presentation about deadly force incidents in Q1/Q2, stated on the record in October 2023 that they cannot make recommendations about policies related to those incidents. The problem is, that claim was refuted by DOJ when it was last made in October 2021-- which is what led to the presentations in the first place.

This is only one example of how the City's "Substantial Compliance" with certain elements of the Agreement can't be trusted to be lasting, and a reason that PCW is deeply concerned about the upcoming approval of amendments to dismiss over three dozen paragraphs while at the same time replacing the COCL with an Independent Monitor.

Also in Q2, the Portland Police alongside a Clackamas County deputy shot a suspect to death, meaning the COCL did not have direct access to evidence whether required elements of the investigation were undertaken. Specifically, they had to get verbal assurance from the PPB that Communications Restrictions were put on the officers (125). The analysis of whether walk- throughs were requested from the involved officers (127) only repeats that the Clackamas Sheriff's Office is investigating, trailing off before making any kind of cogent point [p. 96]. No mention is made that the Clackamas officer was named 48 hours after the incident, while the PPB continues its unreasonable policy of withholding names for 15 days, a time period that according to PPB policy is supposed to be 24 hours. As PCW noted in our prior analysis, the Chief did not issue his executive order extending this timeline until the day after the April 24 shooting (in Q2). Shrug.

Another major failing of the COCL report is that the alarming use of vehicle "interventions" is obscured by how many times police use lower levels of force. If one looks at the corrected numbers for the table on p. 29*-3, it is troubling that officers used the "Box-in" tactic 114 times in a one year period and the "Pursuit Intervention Technique" (PIT) 87 times. That's 201 times hitting people's moving cars (not counting the eight times cops used "ramming"), or more than once every two days. The figure for PIT was just 68 times in calendar year 2022, and the COCL did not analyze this increase. This is a particularly important question after (admittedly, in Q3) two women had their car struck in a PIT maneuver when the PPB mistook their car for a suspect's car.*-4

The new COCL team has slightly updated the format of the Report with some spiffy splashes of color and cut the overall length down from over 200 pages to just over 130. While the Reports could still use more clarity in places, they continue to provide important information that isn't otherwise available to the community.

As above, paragraph numbers in the body of our analysis will generally appear in (parentheses) with Report page numbers in [brackets].

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Good: The COCL's analysis of the officers who used more force than others comes complete with a helpful table showing how 18 officers used force between 9 and 18 times apiece, with nine of the officers not getting any kind of counseling from supervisors [pp 87-88]. While the COCL continues to push the Force Inspector to explain why some officers are flagged as "outliers" and others are not, it seems they're calling for there to be more consistency in addressing these cops who use so much violence.

A quick rundown: One officer used force 18 times and one 17 times, each was counseled three times-- all other counseling only happened once. Two used force 15 times but only one was counseled. Two had 14 uses and were counseled. Two used force 12 times and two 11 times, none of these four officers were counseled. The eight remaining officers each used force 9 times and only four were counseled. One officer who had five "force alerts" issued did not get counseling.

The lack of follow up is one reason that the Employee Information System operational paragraphs (116-117) are still not in compliance (and are not being considered for dismissal).

The COCL notes that the force data show that 27% of those subjected to force are Black, and that 33% of the women subjected to force are Black (p. 76) [p. 27]. It's noted that the Training Advisory Council is looking into these statistics.

Bad: As noted above, the COCL did not look at the high uses of deliberate vehicle crashes. They also do not comment on the fact that police reported a high number of people in mental health crisis as being armed, counting "spit and bodily fluids" as one type of weapon (76) [p. 31] The category of "Needle,, spit or other bodily fluid" accounted for 27.8% of the "weapons" in the last year but only 18.5% over the course of five years, indicating that officers are claiming they are facing these "weapons" more frequently. Trouble is, everyone carries spit and bodily fluids on them so by that measure, everyone the police encounter can be considered armed.

PCW also finds it disturbing that the COCL previously identified cases that were required to be investigated under paragraph 129 due to excessive force allegations. Even though the PPB and IPR did not open investigations, the rating for this paragraph was moved up from "Partial" to "Substantial" compliance because no _new_ force allegations were swept under the rug [p. 98].

Apparently all but one case the COCL reviewed led to investigations with findings. In that case, the supervisor claimed it was a "customer service" issue and closed the complaint as "not substantiated." The COCL doesn't say if they thought that was wrong. They also note, in a footnote rather than in the body text, that an After Action Report found misconduct but that incident didn't make it into the proper database (169) [p. 108].

Officers used strikes and kicks 30 times over the course of five years. Ten of those were in the last year, but the COCL does not make note of that fact (pp. 30-31).

Injuries are included as an item that feeds into what the PPB will have in its annual training... but only those suffered by officers is listed, not those of community members (79) [pp. 34-35]. On the other hand, the COCL does say that "the community should play a bigger role in setting police priorities because it is the recipient of police services" [p. 43].

Meh, Whatever: The "shrug" attitude of the COCL (and the other powers that be) is also reflected in other ways. Examining whether officers use certain kind of force more often than others, only Categories II (serious), III (less serious) and IV (least serious) are included (120) [p. 86], but not Category I (deadly force), which was used at least 19 times between 2021 and the end of Q2 2023.

The story about the person who had three officers fire Tasers at them [p. 17] has more nuances: one Taser didn't deploy, and the cops said their failure to alert each other (by saying "Taser, Taser, Taser") is why they other two hit the person twice at the same time. Apparently, the DOJ ok'd the Bureau's policy in the past, saying that the use of more than one Taser at a time is only against policy if it is "intentional." Well, for the person hit with two times 10,000 volts*-5 the intent doesn't matter. The fact that the officers violated training which led to an apparent (but "oopsie!" not intentional) policy violation should still have led to consequences, which aren't indicated in the report.

What the PPB got out of this case: They couldn't line up the time stamps on the Tasers because, they say, the equipment is too old (can't they reset the clocks on them?). The COCL said of the Taser that didn't work that officers need to be reminded to test the weapons before they head out in the field. But then the Compliance Officer did not include that in recommendations for paragraph 68.

There is notably no follow up to the Q1 COCL Report which found that 25% of 20 random cases they reviewed were not "tactically sound." Shrug.

Finally in the "meh, whatever" category: to show how "low level" most uses of force are, the COCL notes that one of the cases they saw with level IV force was when a "resistant subject" did not put their head up for a booking photo and the officer pulled his head up twice (76) [p. 26]. Again, if you are that person you would find that problematic, and moreover, if a community member touched a police officer that way they would be charged with harassment or assault.

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The "Independent" Police Review (IPR, the civilian intake point for complaints) reported that five of 14 cases took over 180 days in the quarter under review. But police Internal Affairs put that number at three [p. 89], because they were given permission by the DOJ to "toll" (that is, not count toward the 180 day deadline in paragraph 121) time taken off by officers that's legally permissible ("protected leave"). But nobody told IPR (or, apparently, the COCL-- see our analysis of the Q1 2023 report*-6).

But that 180 day timeline has been well trampled by the IPR's investigations into supervisors during the 2020 Black Lives Matter protests, required by paragraph 192. Those were to begin by the end of June, 2022, and were not done by the end of Q2 2023-- over a year later. In fact, they were still not completed by the time the COCL held a Town Hall on the draft Report on November 8, well over 16 months later. The COCL said at that Town Hall that they can't explain the delays without breaching some kind of confidentiality; it seems ridiculous that they can't say something simple like "the supervisors are refusing to cooperate," "the evidence is being reconstructed frame by frame at Industrial Light and Magic" or "nobody cares any more, that was three years ago."

With all these overages, one would think that the COCL would find a lack of compliance with paragraph 123, which requires the IPR and IA to come up with plans to keep cases from running long. Despite that requirement and the fact that the DOJ found paragraph 123 out of compliance in their most recent report, the COCL gives a full ok to the City for having a process to identify the problems [p. 92].

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Buried deep in the Report, the COCL, which wrote a whole position paper on Body Worn Cameras, was not given the draft bodycam policy as required by the Agreement paragraph 166 [p. 127]. This seems to be a pretty serious issue (and not surprising given how the City is stingy about sharing information).

The COCL observed two Police Review Board hearings and tells the reader that the DOJ wrote an executive summary of what the issues were that keep paragraph 131 from being in compliance [p. 100]. PCW asks, would it be possible to list those issues in the COCL Report so a person doesn't have to keep every document on hand to understand it? They do give examples: training reviews not being performed for "non-conventional lethal force events." They also say the PRB needs to identify "collateral misconduct," which is a disturbing term for possible misconduct not related directly to the deadly force. If these are the issues raised by DOJ, it's not clear.

The Report mentions that the Training Advisory Council voted on a recommendation about the Enhanced Crisis Intervention Team (ECIT) training, but doesn't say what it was (86) [p. 44]. They only give an embedded general link to the website (notably, prior reports have included the URLS in the text for more transparency).

BHUAC received a spreadsheet about the ECIT course, but not the full content. They were only told it was similar to the previous course. But once the police said the BHUAC would later be allowed to attend dry runs, they approved the training, sight unseen. And yet paragraph 95 on BHUAC's role in making recommendations is found in compliance [p. 55].

The BHUAC made a good suggestion that the police should record the deadly force presentation and post it to the web. PPB said they agreed ... for next year. (96) [p. 57].

Even though the entire section on Mental Health continues to be considered in "substantial compliance," the committee where Portland Police are supposed to talk to medical facilities about transporting patients has not met in three quarters (89) [pp. 47-48].

At their retreat, which is closed to the public, the Portland Committee on Community Engaged Policing discussed the inadequacy of the Mayor's response to their recommendations. In theory this was in violation of public meetings laws. (PCCEP is only voluntarily following those laws because, the City says, they only advise the Mayor not the whole City Council). They brought it up in public at their June 7 meeting (141/142) [p. 116].

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Though they previously pooh-poohed the idea, the COCL seems encouraged that Portland might issue another city-wide survey that will include questions about police behavior (80) [p. 37]. Of course, they still prefer "contact surveys" and say that will better get at people who interact with police "eg crime victims" (146) [p 114]. Those crime victims are not likely the ones being subjected to force, which is the focus of the Settlement Agreement.

The COCL refers to the new civilian training dean as the "Police Education Director" (p. vi), not the "Director of Police Education," which PCW noted previously spells "DOPE." It's not clear whether this is an official change.

In the appendix listing acronyms used in the report [pp. 130-131]: (a) the listings are now properly in alphabetical order, (b) the layout is easier to follow, and (c) a number of acronyms that aren't used in this particular report, and some that have become obsolete, were dropped. This includes the acronyms of the Rapid Response Team being taken out (as they self-disbanded in 2021) and Mobile Field Forces (which sort of took RRT's place in crowd control) being added.

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While there is essentially no break in continuity between previous Reports and this one, since Dr. Christoff was part of previous COCL Dr. Dennis Rosenbaum's team, that's not necessarily a good thing as many of the same deficiencies of previous reports persist. Similarly, the problematic behaviors of the Portland Police persist, and while some more technical aspects are raised in the new Report, issues of deep community concern like deadly force and solutions to PPB racial discrimination are still out there. PCW repeats its earlier hope that the new Independent Court Monitor will improve on both of these fronts.

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*1- Find the Report at https://www.portlandcocl.com/reports/102023/draft-quarterly-report-quarter- updates-analysis

*2- Actually this is by Portland Copwatch's count, because the executive summary doesn't clearly spell out which paragraphs are still lacking compliance and the Report Card narrative on p. 2 doesn't give a count.

*3- PCW pointed out that the table was incorrect and the COCL sent us the corrected copy.

*4- Notably the lawyer suing on behalf of these women mentioned the PPB mistaking Immanueal Clark-Johnson for a suspect and shooting the unarmed Black man in the back in November 2022... facts that were also not revealed until after Q2 2023.

*5- PCW welcomes an electrical engineer to explain how much voltage this adds up to cumulatively if it's not 20,000 volts.

*6- https://www.portlandcopwatch.org/COCLanalysisPCW0823.html

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Posted November 12, 2023