People's Police Report
Shootings & deaths
Chief Proposes New Taser and Force Guidelines to Satisfy DOJ
In mid-September, anticipating the release of the US Department of Justice (DOJ) report on Portland Police Bureau (PPB) use of force, Chief Mike Reese released data showing an overall decrease in police uses of force since the policy was revised in 2008. When pressed for more data, the PPB revealed that while most uses of force were down 35%, both shootings and pepper spray use were up (from one to six, and increased by 21%, respectively). A month later, now awaiting the DOJ's Agreement with the City, Reese released for public comment draft Directives (policies) on Tasers, "Application of Force," and Deadly Force. Though Reese had already seen the Citizen Review Committee (CRC)'s Taser/Less Lethal report, most of their recommendations were not included in his drafts. Many of the suggestions raised by the community, in the DOJ report, by previous reports from PARC, OIR and even the City Auditor, were also not present. Several portions of the DOJ's Findings Letter and a recent incident have revealed the Bureau's ongoing misuse of a weapon that is potentially deadly.
One of the few gratifying elements of the DOJ report has been its bringing these past efforts back into the public eye. The Oregonian's September 20 front page declared "Police ignored calls for Taser reform," and an editorial cartoon showed the DOJ pondering using a stun gun on an out-of- control police spokesperson. The article says Reese's excuse for not having the policies changed to comply with the Ninth Circuit ruling limiting Taser use only to people who pose an "immediate threat" (PPR #56) was that he wanted to wait for the DOJ report to come out.
The Police Executive Research Forum (PERF), cited heavily by both the CRC and the Auditor, calls for using a Taser once, reassessing, and never using it more than three times, which the CRC would permit in "exigent circumstances." The Chief's proposed Directive calls for officers to evaluate the use of a Taser if it is not effective after two cycles. The DOJ proposed the PERF guideline of evaluating after each use, and calls on the Bureau to consider more than two Taser zaps a "serious use of force." Ideally, the exigency escape valve should be removed instead of leaving a loophole for officers. Other such loopholes are opened by the DOJ report and the draft Directive for, among other things, shocking people already in handcuffs.
However, the "one cycle, then re-evaluate" provision may actually give suspects the chance to comply before they are subjected to more 50,000 volt, five-second long torture sessions.
Where the CRC asked the Chief to remove the old Directive's provision allowing officers to zap people "displaying the intent" to resist officers, the Chief turned this suggestion on its head by finding new language to say the same thing. The new language would let officers use Tasers if people make verbal threats or are "credible threats."
Significantly, the CRC's request that the PPB call for medical response whenever a Taser is used was also ignored, and is not part of the DOJ report. Following three possible Taser-related deaths in southern Oregon in 2012 (article), the PPB reported that on November 9, after they chased and tasered 22 year old Sydell Porter Guerrero, he stopped breathing. In the early morning incident, the officers were able to give Guerrero CPR, and medical help was summoned, saving his life. However, the fact that he nearly died after being zapped only once with the Taser underscores the danger of the weapons.
--Neither the Chief's Directive nor the DOJ Agreement mentions the idea of tracking "Laser Light Only" use of the Taser, something suggested by CRC, the Auditor/PERF, and the Community Police Relations Committee-- a body which has PPB members voting on it (PPR #54).
--The new Directive allows officers to give warnings by non-verbal means, including the laser light and "arcing," or making electricity crackle between the device's probes without touching anything.
--The DOJ Agreement says to limit Taser use to one officer at a time, but the Directive is silent on the matter.
The DOJ's report included the story of the unarmed, naked Anthony Caviness, suffering a diabetic emergency in 2010, being tasered once, falling down, then having Officer Joshua Sparks (#48052) taser him three more times. In a 2011 incident, Officer Kevin Wolf (#40799) zapped unarmed 42 year old Joseph Dowless, who was in mental health crisis, after Officer Gedemyas Jakubauskas (#46056) had already fired a "beanbag" at him. Those stories, along with the DOJ's observation that PPB trainers seemed confused as to what behaviors justified Taser use, give more credibility to those trying to restrain the weapons' use.
The Chief said he agrees with CRC's call to have less lethal shotguns that cannot also load lethal ammunition. PCW's suggestion is to get rid of lethal shotguns, as we can't find a single police shooting in the last 20 years where one was used.
CRC also called to add restrictions to the Pepper Spray directive to disallow use against those with "intent to engage in active physical resistance." PCW had been wondering how to get more young people involved in the issue of police accountability, so the Mayor and the Bureau did a favor by brutally and indiscriminately pepper spraying the high school students demonstrating for their rights on November 3 (article).
As for broader use of force questions, the DOJ wrote: "Our review of [Force Reports] revealed numerous examples in which officers used [Tasers], beanbag guns, and multiple fists strikes beyond what was necessary to effectuate the arrest and a failure to consider less intrusive alternatives." Unfortunately, their proposed remedies begin by telling the Bureau to keep its current policy in place, and emphasizes an officer's later explanation for decision-making.
Furthermore, the vague "Graham" standard allowing officers to use a reasonable amount of force in the totality of the circumstances will not help officers gauge the maximum force in a given scenario. Previous training and policy included a "continuum of force" describing what behavior authorized what kinds of force. In discussion with the DOJ, PCW was told that giving officers an upper limit will drive them toward using that upper limit; we contend they can't use "less force than the maximum allowed" if they don't know what that is. PCW believes the Directive does not require officers to use the least amount of force necessary, because using "only the force reasonably necessary" to complete their lawful task can fall anywhere between the least force necessary to the most force allowed by law.
In light of the DOJ's findings, the proposed Force Directive says to resolve incidents with people in mental health crisis "with as little reliance on force as practical," implying that all other persons are fair game for maximum force.
The new Deadly Force Directive encourages officers to participate in a "voluntary interview" conducted by detectives, trying to balance the officers' Fifth Amendment rights against self- incrimination with the City's (and the public's) need to know what happened. While the Chief is making efforts to afford officers the same rights as others on one hand, on the other, the Directive would allow officers to review video made of an incident before talking to Detectives. Imagine this being done for a civilian suspect in a homicide.
It remains to be seen whether the Chief makes any changes based on community input or the DOJ report. However, it is a step forward that the Chief has asked for public input, a routine that will be required of many policies under the DOJ Agreement.
Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.