ANALYSIS: Police Review Board Report 3/20:
More Discipline for Protocol Failures than Harming Community Members

Table of contents
The Death of Jeb Brock: Hitting the Hostage (and more)
Civilian Complaints Sidelined Again
Domestic Violence Case with No Civilian Involved? Unlikely
Cop Disobeys Supervisor, Chief Lowers Discipline + Car Crash Cop
Observations of PRB Recommendations
More Information Still Needed

From: Portland Copwatch

To: Christopher Paille, Police Review Board Coordinator
    Chief Jami Resch, Portland Police Bureau

cc: IPR Director Ross Caldwell
    Auditor Mary Hull Caballero
    Mayor/Police Commissioner Ted Wheeler
    Citizen Review Committee
    US Department of Justice and Compliance Officer/Community Liaison
    Members of the media
    Portland Copwatch

April 6, 2020

Mr. Paille and Chief Resch:

While it is understandable with the pandemic front and center in everyone's lives, the Bureau's March, 2020 Police Review Board (PRB) Report was, like nearly all other PRB Reports since 2014, released without any announcement to the public.*-1 The new document (found at only summarizes eight cases, which lowers the amount of anxiety provoked by reading about large quantities of officer misdeeds. One incident was the shooting death of Jeb Brock in April, 2019; two others were officers failing to make arrests in Domestic Violence (DV) restraining order violation cases. One cop defied an order about sharing confidential information, one officer was not found to have racially profiled, and two cases involved use of force against community members-- though the force wasn't examined by the PRB in one. In all of these seven cases, the officers who were given any discipline at all received harsher punishment for failing to follow certain protocols than the officers who profiled or physically harmed civilians. The eighth case was an officer who crashed their police car three times in quick succession; the narrative is unclear whether they hit anything other than a "short pole."

In one case, Chief Outlaw reduced the proposed discipline without explanation. In another, she changed a "Sustained" finding to "Not Sustained" (not enough evidence to prove or disprove) also without a clear reason, though the officer was still disciplined for other violations.

Overall there were three cases where there was no discipline at all-- the shooting and two civilian complaints; two uses of the most minimal "Command Counseling" (another civilian complaint and the car crashes), one Letter of Reprimand, and two officers given time off without pay (two days and one week-- in one of the Domestic Violence cases and the insubordination incident).

Notably, this is the second Report in a row without any officers accused of Driving Under the Influence.

The PRB meets behind closed doors, made up of a majority of police (an Assistant Chief, the officer's commander, and one or two cops of the same rank as the accused), a staff member of the civilian Independent Police Review (IPR)-- Portland's quasi-civilian review body, and one to two community members. When a case involving the use of force makes it to the Board, there are supposed to be seven members. However, in the civilian case where force occurred, because the Board was only reviewing the officer's foot pursuit, only five members heard the case. Furthermore, those who have participated in PRB hearings indicate that the police point of view tends to prevail. This concern comes into focus with the profiling allegation, where one Board member clearly showed the officers' action was a violation of policy, but not a single person voted to Sustain the complaint.

Overall the Board considered 19 allegations, finding ten to be "Exonerated" or "In Policy," and nine Sustained-- though as noted above, the Chief changed one of those.

Portland Copwatch (PCW) has noted repeatedly that cases in which officers interact with community members are supposed to be classified as "C" cases, but the Bureau keeps labeling many of them "B" cases, meaning only officers were involved. In one of the Domestic Violence cases, where an officer failed to arrest someone who'd been deemed by courts as a danger to the person who obtained a restraining order, this leaves the DV survivor no way to appeal if the officer had not been found out of policy. PCW also continues to disagree that people subjected to deadly force (or their survivors) are not allowed to appeal PPB findings, and we believe it is unconscionable to label shootings as "Bureau only." Thus we have, as usual, numbered those cases as "B/C" below.

The incidents reviewed for this Report appear to have all occurred in 2018 and 2019, so the Bureau is finally starting to catch up on addressing and reporting on misconduct before too much time has elapsed. However, the memos generated by PRB facilitators continue to redact such important information as the locations, dates, and (mostly) gender pronouns identifying people involved. PCW was able to identify officers in just one of the eight cases-- the shooting incident, where such information is reported elsewhere on the Bureau's website and in the media, making the redactions seem silly. A few stray pronouns identified the genders of civilians.

Below are comments on the various complaints-- deadly force, "B/C" (Bureau's action affected civilians), "C" (civilian complaints) and "B" (Bureau members only). Each case is numbered in the order it shows up in the Report.

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THE DEATH OF JEB BROCK-- Hitting the Hostage, Late De-Escalation, and Sergeant as Witness

(B/C 2) The Report relates that when Officers Michael Gonzalez and Aaron Rizzo entered the house where Jeb Brock had already wounded several people, Rizzo fired his less-lethal weapon at Brock without warning. Rizzo said this was to "provide time" though it's not clear how. While he hit Brock, at least one of the rounds hit the woman whom Brock was holding at knifepoint, underscoring how lucky it is that Rizzo's less lethal round didn't kill her (which does happen) and that he did not use a regular firearm. Many in Portland still remember when officers shot both 12-year-old Nathan Thomas and the man holding him hostage in 1992.

Making matters worse, Gonzalez then told investigators he used his training to try de-escalating the situation _after_ Rizzo's less lethal rounds were fired. That's a little like breaking into someone's house and stealing a TV, then offering to pay for it afterward. By that point, the situation was already escalated by the police violence. Gonzalez then shot and killed Brock. The Board found no wrongdoing by either officer.

In reviewing the actions of Supervisors, they revealed that a Sergeant (Officer #3 in the Report) went inside the house where the two officers were handling the situation, and ended up being a witness to the gunfire. This meant he was unable to continue acting as a supervisor in the post-shooting actions outlined in Bureau policy. The OIR Group has cautioned against supervisors getting involved in tactical situations numerous times, but the PRB found no problem. Another supervisor (Officer #4) was able to become incident commander and process the crime scene.

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(C4) For non-shooting cases, PCW is starting with the profiling complaint because of the Board's blatant disregard of the facts. The case only made it to the PRB because the Independent Police Review controverted (disagreed with) the commander's "Exonerated" finding, but only proposed a "Not Sustained" finding. The memos do not ascribe summarized comments to any particular Board member. It would seem that the one person who voted for a Not Sustained finding (versus the four who voted to Exonerate the two officers involved) was the one who cited the Directive about Bias Based Policing, noting that officers cannot base reasonable suspicion solely on the race of a person given in a suspect description. According to the Report, the only trait the complainant had in common with the suspect was their race. The police excused this by saying they were searching around a light rail station for a suspect who was reportedly armed and the complainant was the only person there. That does not eliminate the requirements for multiple descriptors, which comes from the state law on profiling.

The officers made the person spread their arms and legs and be subjected to a search because they were "looking for a black person with a gun." Four PRB members said the search wasn't improper because police don't need reasonable suspicion to do a pat down. However, if the only reason officers approached this person in the first place was their race, there is no question this should have been a Sustained finding. According to IPR's website, only three Disparate Treatment allegations out of 91 have been Sustained since 2011.

Interestingly, the supervisor who agreed with the PRB's recommended finding in this case was then- Deputy Chief Resch. It is not clear why Chief Outlaw was unavailable. The memo was generated on December 3, four weeks before Outlaw left Portland.

(C3) Two officers also used force on a man after one of them chased him from a traffic stop. They punched the man in the face repeatedly, but the force wasn't reviewed by the PRB because the only allegation challenged had to do with a violation of the foot pursuit policy. All three entities reviewing the commander's original finding-- an Assistant Chief, Internal Affairs and IPR-- all suggested Sustaining the allegation rather than the original Not Sustained finding. The Bureau had found the (invisible to the PRB) Force allegation to be Exonerated with a debriefing, so at least (if the Chief agreed) the officer received a talking-to about the repeated punches. The Board narrowly agreed with the proposal to find the cop out of policy. On a 3-2 vote they found the foot pursuit violated policy by posing a risk to the passenger left behind in the car with another suspect. Chief Outlaw agreed to give the officer who gave chase Command Counseling, the lowest level discipline available. It seems that if the officer had not given chase, the force would not have been "necessary," thus the Board should have declared the Force out of policy as well.

This is not the first time the Board has been asked to only look at one allegation, making a mockery of the idea that an officer's actions are to be judged in the "totality of the circumstances." Not only was a similar review applied to the beating of teenager Thai Gurule several years ago, there was also only one allegation reviewed in the next incident we analyze.

(C2) In this incident, a person who was arrested and a witness both complained that an officer used excessive force taking the arrestee into custody. The Board reviewed a video and admitted that watching the officer repeatedly punch the complainant looked bad, but people needed to know a broader context in which it is alleged the suspect was not complying with officers' commands. Perhaps because this was just one of at least five original allegations (four of which did not make it to the PRB), the officer using a Taser to no effect wasn't highlighted in the review. Though one Board member wanted to Sustain the Force allegation and one suggested "Not Sustained," the other five voted to "Exonerate" the cop. Deputy Chief Chris Davis added a debriefing to the Exonerated finding at the recommendation of three of those members. The Board suggested the officer should watch the video of themselves punching the suspect to see how it looks to bystanders. The person who wanted to Sustain the complaint felt the officer did not decrease the use of force once the suspect was under control, but only recommended Command Counseling should the Chief's office have chosen to find the officer guilty.

The issues not before the PRB included that the one of the complainants said the officers did not address their concerns.

(C1) A man who had obtained a restraining order against another civilian for Domestic Violence felt officers were rude to him and failed to document or make an arrest based on the violation of that order. The officer apparently made the man feel as if making the complaint was improper. The second officer on the scene noted that they felt Officer #1 had the wrong "tone" and was being "short" with the complainant as well, so the Board agreed to Sustain a Courtesy violation. Officer #1 mentioned that the complainant calls the police a lot, as if that invalidates the seriousness of the potential threat. The second officer also knew enough to write a report on the incident, but apparently did not because #1 was the primary officer and should have done so. Officer #2, more of a rookie, also questioned why Officer #1 did not follow up with the subject of the restraining order as required. This led to a Sustained finding of violating the Domestic Violence and Laws, Rules and Orders Directives.

One reason Officer #1 did not follow up was one of the restrictions in the restraining order was for the other civilian to stay 10 feet away from the complainant. Because the cop was so focused on that one area, they did not take time do to do more investigation, a violation of the Satisfactory Performance policy.

The PRB unanimously agreed on all three of these findings as well as a fourth finding that the officer violated the DV Directive by failing to make an arrest. Despite that unanimous vote, Chief Outlaw changed the finding to "Not Sustained." It seems odd to do so, since either the officer made the mandatory arrest or they did not. It's not as if there is insufficient evidence one way or the other. Regardless, the PRB only recommended a Letter of Reprimand, the second lowest form of discipline, and the Chief agreed with that to cover the three remaining Sustained findings.

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(B/C 1) The other case involving failure to arrest involved a man subject to a restraining order who was known to have a gun, even though the order restricted him from possessing or purchasing one. The officer seized the man's gun but did not arrest him, claiming that because the person who'd filed the order wasn't there it was not a violation, and that taking the gun away resolved the issue. Since the restraining order violation should have led to a mandatory arrest, the officer was found in violation of the DV and Laws, Rules and Orders policies. The officer also waited two days to write a report, even though the Reporting Directive requires it to be done by the end of the shift, so they were also found out of policy for that. The Board recommended two days off without pay, and Chief Outlaw agreed. As noted above, this discipline is much harsher than anything doled out to officers who used force or racially profiled a person, calling the Board's judgment and the application of the Discipline Matrix into question.

It is not clear why, since the survivor of Domestic Violence was put at risk by the officer's actions, this was categorized as a "B" case rather than a "C" case.

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(B1) A mid-level supervisor disobeyed their supervisor's order by releasing confidential personnel information about an Internal Affairs file to another officer. The Board was particularly incensed that the officer showed no remorse for what they did. (One was upset that there was "no crisis of conscious" [sic], by which we assume they meant "conscience.") They talked about the "sanctity" of the leaked document and how having it released could dissuade other people from coming forward to make complaints. Four Board members recommended a demotion for the insubordination, and one suggested two weeks off. The cover memo says Chief Outlaw "agreed," yet inexplicably only imposed one week off without pay. The PRB ordinance requires the Chief to explain such a change.*- 2

(B2) The officer who had three accidents was found out of policy for Satisfactory Performance violations on a 5-0 vote, but the Board only suggested Command Counseling. This was in part because the officer wasn't talked to about the first two accidents until after they had been involved in the third. As noted above, the summary report only gives a little detail on one accident-- having to do with a "short pole" the officer hit. If the other two accidents involved community members and not inanimate objects, this case should have been labelled a "C" case so the civilians could appeal if the finding had not been Sustained. Sometime after December 18, Deputy Chief Resch agreed with the Board's findings and the recommendation to impose Command Counseling.

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In two cases, the Board made recommendations about giving officers other options than being disciplined. For the Domestic Violence case with the gun, they suggested remedial training, but one member was concerned that the veteran officer would have to be in class with new recruits and that would be uncomfortable. In the other DV case, they asked for "resiliency training" (which PCW has never heard of in this context before) and wellness training rather than being punitive.

In three other cases, they made policy recommendations. While PRB Reports used to at least give minimal information about what happened to such recommendations, that practice stopped over a year ago. In the second DV case they suggested (a) the Discipline Guide should allow training rather than punishment, (b) the Bureau set up a formal resiliency program, and (c) to include other kinds of protective orders in the Domestic Violence Directive.

In the foot pursuit case, they were told that the training on foot pursuits does not match the policy, which itself flies in the face of what the Training Directive (and the US DOJ Agreement) says. They said (a) the reason for engaging in foot pursuits is not as narrowly defined in training so should be fixed, and (b) the policy should be more clear on what constitutes a violation.

In the car crash case, the Board suggested (a) to offer training to officers after they have just one accident and (b) to find a way to improve the working relationship among the PRB, Internal Affairs and the Crash Review Board.

There is no indication what the Bureau did with any of these suggestions.

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PCW repeats that the PRB's Reports could be improved by including:

--the date of the incident in question
(the dates was given in just one of the eight cases);

--the number of voting members and number of votes
(in three cases the votes were just listed as "unanimous");

--which opinions were from officers, civilians,
IPR staff, or Bureau management;

--the gender of all persons involved;

--the names of officers, particularly in cases which have already
been reported in the media and the PPB's website;

--more thorough background summaries for all cases,
especially in deadly force cases;

--an explanation of the delay in publishing a case;

--a general summary of the purpose of the PRB with a citation of the
City Code that created it;

--reports on the progress of PRB recommendations, and

--a list of the names of the civilian members of the Board, which
is public information and would enhance the Report. (This is not
a request to say which civilian sat on which Board, just a list.)

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Portland Copwatch continues to be concerned about the kinds of behavior being revealed in these Reports, and the extent to which the Police Review Board is complicit in minimizing the significance of harms to members of the community. We still urge the Bureau to open up the process to the media, those who were harmed (or their survivors) and perhaps the broader community. The OIR Group's recommendation to look at actions other than the actual use of deadly force and consider possible violations does not seem to have been heeded, even though the Brock review occurred after the February 2019 OIR Report was issued. We would like to know whether the PRB even receives the OIR Reports. Again, having at least the civilian pool members of PRB hold public meetings when the PRB Reports are released could allow for a discussion of such topics.

PCW also repeats here that reviewing deadly force cases should not prohibit the people involved from filing appeals to the findings that officers did nothing wrong. The Citizen Review Committee must be empowered to hear appeals in these most serious cases.

In our last meeting with Chief Outlaw in December, we suggested the Bureau could increase transparency by releasing PRB Reports on a quarterly basis rather than just twice a year. In 2018 and 2019, the Reports were issued in September and December; having this one come out in March could be a sign that the Bureau has adopted our suggestion. We hope so.

Finally, in reference to the quiet way in which these Reports are released, PCW once again seems to have seen this set of memos before the mainstream media and is first to report on it. However, these are cases of serious importance and they should be just as prominently featured as the Bureau's efforts to keep patrolling the streets during the coronavirus crisis.

Thank you,
dan handelman
--Portland Copwatch

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*1- The metadata indicates the file was generated on March 16, but it is not clear when it was posted online.

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*2-City Code 3.20.140 (H) (4)

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Posted April 6, 2019