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DEPARTMENT OF JUSTICE FINDS PATTERN AND PRACTICE OF EXCESSIVE FORCE BY PORTLAND POLICE
Study Focuses on Those with Mental Illness, Leaving Racial Bias Concerns Lingering;
Agreement with City Full of Loopholes and Accountability Issues

In mid-September, the US Department of Justice (DOJ) released its Letter of Findings regarding the Portland Police Bureau (PPB), concluding they engage in a pattern and practice of excessive force-- but only with regard to people in mental health crisis. While the Findings Letter contains two pages urging the City to improve relations between the police and communities of color, particularly the African American community, the initial Agreement penned between Portland and the DOJ released six weeks later barely mentioned race at all. Even worse, it initially required the dismantling of the Community/Police Relations Committee (CPRC), the only official body charged with addressing racial profiling concerns. A few minor changes retained the CPRC and require ongoing data collection (article), but not much more. Since the Albina Ministerial Alliance (AMA) Coalition for Justice and Police Reform initially called for a pattern and practice investigation of the PPB after the death of African American Aaron Campbell (PPR #50), the process was a disappointment to many. The sections of the Agreement intended to limit the use of force by the PPB and to improve accountability are similarly inadequate, though there are certainly steps in the right direction.

Of course, the City and the Bureau disagreed that there is any pattern or practice, or excessive force going on. Instead they seized on the DOJ's comments that we have an inadequate mental health system, forcing officers to be first responders to mental health crises. While that may be true, that does not explain why so much force is used against people in crisis.

The major focus of the investigation, excessive force, is supposed to be addressed by added scrutiny of how officers report about incidents, rather than explicitly requiring cops to use the least amount of force necessary. This leaves a continued opening for officers to be trained on what to say in a report (as they have for years in deadly force cases, being told to say "I feared for my life") rather than having them make quick, critical decisions to use less force on site.

The pushback on dismantling the CPRC was probably the main motivator for Mayor Sam Adams to allow two hearings on the Agreement, while the community was fearing there would be just one session to ram the document through Council "as-is." Because the DOJ instructed the City that negotiations about the Agreement were confidential, the community had no initial input. The 74- page document, released on October 26, had a first hearing six days later on November 1. Members of the Human Rights Commission, which oversees the CPRC, and the Portland Commission on Disabilities (PCoD), called out Council for shutting down work on police-race relations in favor of improving how police handle people with mental health issues. Though Adams said the intention was not to end CPRC's racial profiling work, Council held off voting and a revised version, considered November 8, kept CPRC in place and made provisions for the PCoD to participate in oversight of the Agreement. On December 17, the DOJ formally filed a lawsuit in federal court, asking the Judge not to act on the suit while the settlement (the Agreement) is being enacted, but in theory making the proposed changes court-enforcable. On December 18, the Portland Police Association (PPA) asked to become a co-defendant with the City, claiming most of the proposed changes would violate their rights to collectively bargain (Portland Mercury blog, December 17).

While other cities under scrutiny by the DOJ ended up with court-enforced Consent Decrees overseen by court-appointed Monitors, Portland's Agreement will be administered by a "Compliance Officer/Community Liaison" (COCL). The COCL will head up a "Community Oversight Advisory Board" (COAB) with 15 members, five chosen by Council, five by the HRC and PCoD, and five by a bizarre public elections process. The COCL will not, however, have unfettered access to Bureau documents; they will receive information from a PPB Compliance Coordinator (former North Precinct Captain Pat Walsh).

The COAB will also have five non-voting Police Bureau members.

Meanwhile, to improve the timeliness of investigations into possible misconduct, the DOJ is requiring that all such investigations be completed in 180 days. This seems reasonable, except they include that appeals to misconduct findings must be completed in a 21-day window. The Citizen Review Committee (CRC) tried unsuccessfully to get Adams to change that part of the Agreement due to multiple concerns (article). Also, while several reports to City Council have asked for the CRC's restrictive "reasonable person" standard to be changed to something less deferential, the Agreement includes explicit language locking the current standard in place. Since the Agreement could be enforced for five years, this is a setback to community efforts. CRC is also going to be expanded to eleven members from the current nine, be given some authority to order more investigation when information is inadequate, and have its members rotate one at a time onto the Police Review Board (PRB) that hears use of force cases. A more integrated accountability system would be welcome, but while CRC members can bring their expertise to the PRB, they will still be required to keep the deliberations confidential, meaning there is little gained for the CRC as a whole or for the community by this change.

The PRB is being kept intact, meaning it will continue to meet out of the public eye, disallowing even the person wronged (or survivors of a shooting/death in custody victim) from participating. On the other hand, the PRB will, like the CRC, have the ability to require more investigation when there aren't enough facts to determine if an officer's force was out of policy. To add insult to injury, after Independent Police Review Division (IPR) rejected the appeal by Keaton Otis' father of the PRB's findings (article), the DOJ included a paragraph stating that the right to such appeals was not established by the Agreement. This is particularly disturbing since the DOJ's Letter found no prohibition on a shooting victim filing an appeal, and called it "curious" that civilians involved in the incident were not allowed into the PRB hearings.

Portland Copwatch (PCW), the AMA Coalition and the League of Women Voters pushed on many of these points in discussions with the DOJ. US Attorney Amanda Marshall and other DOJ representatives insisted that because Internal Affairs (IA) is required to conduct investigations, there is no right to appeal (even though such a right was cited by IPR Director Mary-Beth Baptista when City code was changed in 2010 to allow appeals by civilians who did not file a complaint), claiming that families could use the courts to get justice. This discussion is a perfect indicator for the out-of- touch nature of the Agreement: most families who lose loved ones do not have the resources to file lawsuits, such suits only address the lawfulness of actions rather than whether policy was violated, and even if found guilty in court, officers are not necessarily disciplined. To be fair, one provision of the Agreement says that IA now has to open a complaint if such a verdict is rendered in civil court, with the assumption the officer was out of policy unless facts prove otherwise.

The DOJ seemed to take the attitude that despite the specific cases they cited (including PPB officers using a Taser multiple times on a naked man suffering a diabetic reaction), because this isn't New Orleans or Los Angeles, we are not in need of deep police reforms. But here, the police will taser a civilian in the back, then politicians will smile and shake your hand... a more insidious kind of corruption that needs more than minor fixes.

And while the Findings Letter called the accountability system both "self-defeating" and "byzantine", the Agreement does nothing to improve those situations, instead adding several new layers of accountability with the COCL, the COAB, and a new Bureau division complete with its own advisory board, the Addictions and Behavioral Health Unit (ABHU).

At the November 1 hearing, PCW noted a few positive changes, such as calling for officers to de- escalate their use of violence as the resistance from the suspect decreases, and making public all reports related to the Agreement. But the Agreement doesn't take on directly one of the biggest obstacles to accountability and change: the PPA. The Letter called for the City to end the so-called "48-hour rule," which allows officers two days before being subjected to an interview regarding whether they followed training and policy, but the Agreement only creates voluntary exceptions. The Agreement calls for the City to come up with guidelines so IPR can conduct "meaningful" independent investigations, since they currently can't compel officer testimony (due to the PPA contract), but doesn't say what that means, nor does it require IPR to conduct any such investigation. The fact is, this oversight body has never done an investigation in its 11 year history.

Also, there is no provision to allow Portland to fire officers who have used excessive force, including deadly force. The PPA contract has allowed the overturning of every discipline against officers in such high profile cases, including the Campbell case (article). Folks from Disability Rights Oregon who sit on the current Crisis Intervention Team (CIT) advisory board have been asking to see the training curricula and materials for years; it appears that the new ABHU advisory board will have such access.

On that note, one of the efforts to reduce the force used against people in mental health crisis is the revival of CIT specialty officers, who can be called in when officers arriving on the scene are unable to resolve a situation. All 900 Portland officers will continue to receive CIT training, but officers with extra skills and training will be on call. PCW advocated for this kind of hybrid system previously (PPR #53) but continuously cautions the Bureau to be sure the front line officers use their CIT skills rather than resorting to force. We hope the consequence of the new teams will not be some officers using force and then calling CIT. José Mejía Poot was shot when a second set of officers came to the mental hospital he was in, after the first set, which included a CIT-trained officer, had gone off duty (PPR #24).

Other significant factors around the DOJ's findings include:

--In anticipation of the Agreement's release, Chief Reese drafted revised policies around Use of Force, Deadly Force, and Taser use, all of which contain loopholes for officers to continue using unreasonable amounts of force (article).

--The Employee Information System (EIS) is praised for its thoroughness, even though there is no independent oversight to verify that EIS is being used to trigger command review of "at-risk employees."

--There is support for the new policy in which supervisors head to the scene of uses of force to conduct investigations, but there is no acknowledgment that police supervisors may act to excuse, rather than condemn, their officers' behavior, especially since Sergeants are in the same collective bargaining unit as the officers.

--Perhaps in deference to the PPA, there is only a vague reference to the Letter's instruction that "direct supervisors should evaluate their subordinates at least annually."

--The DOJ's recommendation in the Letter that "all allegations which, if true, would amount to a violation of policy should be investigated" did not make its way into the Agreement, meaning IPR can continue to dismiss cases in which it predicts investigations will not determine whether misconduct occurred.

--Rather than calling for an independent prosecutor, as demanded by the community to avoid the inherent conflicts of interest, the District Attorney will be the one deciding whether to interview officers for criminal investigation.

--After multiple recommendations, including in the DOJ Letter, to once again split the ambiguous "Unproven" finding to the clearer "Insufficient Evidence" and "Unfounded" findings, that suggestion disappeared in the Agreement.

--Despite the fact that Chief Reese has been obstinate about making many changes, including a lack of diversity in his command staff, crackdowns on protestors, and ongoing racial disparity in traffic stops and other police actions, the DOJ hints that they would like to see the next Mayor keep him on for "continuity of management."

Finally, while the federal court has jurisdiction over the Agreement for as long as it takes to make changes (plus one year), and possibly until October 2017, the only two parties to the Agreement are the City and the DOJ. This means that the community as a whole and the COAB have no standing to tell the court if the terms are not being met. Even the COCL, the City employee who will oversee implementation and be responsive to all five members of City Council, will not have standing. While that implies that the PPA also will not have standing, it remains to be seen whether the half- measures recommended by DOJ actually change Portland's police for the better.

January, 2013
Also in PPR #58

Portland Copwatch
PO Box 42456
Portland, OR 97242
(503) 236-3065/ Incident Report Line (503) 321-5120
e-mail: copwatch@portlandcopwatch.org

Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.

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