May 2023 Police Review Board Report: Only Three Cases Reviewed, No Shootings

Table of contents
Two Protest Cases Lead to Extemely Mild Discipline
Commander's Tirade Against DA Also Gets Minimal Correction
Honorable Mention
Repeating PCW Suggestions for Better Reports

To: Elizabeth Vogan, Police Review Board Coordinator
    Chief Chuck Lovell, Portland Police Bureau
cc: IPR Director Ross Caldwell
    Auditor Simone Rede
    Mayor/Police Commissioner Ted Wheeler
    Citizen Review Committee
    US Department of Justice and Compliance Officer/Community Liaison
    Members of the media
    Portland Copwatch

First 2023 Police Review Board Report Contains Three Cases, No Shootings
Identity of Two Officers Clear from Context, but Dates of Hearings Strangely Scrubbed
an analysis by Portland Copwatch May 31, 2023

The Portland Police Bureau is required by City Code to publish Reports about its Police Review Board (PRB) hearings twice a year.*-1 On May 25, they published the first Report for 2023.*-2 Whereas most Reports cover half a dozen or more cases and run into the dozens of pages, the new Report only includes three cases. It's impossible to tell when the hearings occurred because for some reason, the Bureau has begun redacting those dates from the public documents-- including the years. However, it is clear from context that two of the cases were about protest actions in 2020, one of which involved Officer Brent Taylor. The third was one in which Commander Erica Hurley expressed her opposition to public officials at two neighborhood meetings sometime around early 2021. So while it may have taken a year or so for the cases to get to the PRB, it's not clear why the results are only being published in 2023.

Also unusual is that all three of these cases were referred to the Board solely or bilaterally by the Independent Police Review (IPR). Usually there is a mixture of incidents where (a) a commanding officer recommends time off without pay, (b) deadly force cases, and (c) cases "controverted" by IPR or others. Notably, there were seventeen shootings in 2021 and 2022, and only four have gone through the PRB process (as reported in the Portland Copwatch analysis of the December 2022 PRB Report).*-3

As a reminder, the PRB is internal to the police, includes a majority of police officers, and does not allow any member of the media nor the people harmed by police (or their survivors) to attend hearings.

When they find wrongdoing, the PRB makes recommendations to the Chief about discipline. In one case, the Chief accepted a minority vote (two of seven PRB members) to impose a Letter of Reprimand where the majority saw no misconduct. In another, he lowered a proposed day off without pay to be "Command Counseling," the lowest form of corrective action possible; the majority found misconduct in this case. The third case was proposed for Command Counseling and Deputy Chief Frome accepted that proposal. All votes in this case found misconduct.

As Portland Copwatch has noted in the past, City Code allows the Bureau to publish the names of those involved in cases where those names appeared in the media.*-4 The PPB has never done so, even in deadly force cases or the two cases detailed below where the names are known. Notably, the Bureau did include the locations of the first two incidents.

The PRB is made up of five members in cases mostly focusing on recommending discipline (Assistant Chief, Officer's Supervisor, peer officer, staff from Independent Police Review [IPR], and a community member), with two more people added for serious cases such as deadly force (a second peer officer and a member of the Citizen Review Committee).

The Board also made two recommendations for policy changes, of which the Bureau accepted one as-is and apparently amended the other.

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Case #1: The first case listed in the Report involved an officer using their "less-lethal" weapon to push a protestor down on North Mississippi. The officer's supervisor found no wrongdoing but both Internal Affairs and IPR disagreed. The push knocked the person off their feet, leading to a knee injury. The case was heard by a seven-member board, and a majority (four people) agreed there was no misconduct. Due to ridiculous rules, the supervisor gets to vote whether they agreed with their own finding.*-5 This probably all-cop majority made comments such as the protestor "chose not to leave" after a dispersal order and had been "actively aggressive" in the time leading up to the incident. They quite amazingly said the officer de-escalated the situation by threatening to use pepper spray. They called the injury "unfortunate."

While the Report indicates that members of the Rapid Response Team had concerns about the particular protestor, the two Board members who voted to "sustain" the complaint (find it out of policy) said that video showed the person was not posing a threat at the time the force was used. At most the person's failure to disperse, they said, was passive resistance. They also disagreed that the force was the least amount possible, since it knocked the person to the ground. However, they stated they understand officers have a hard time making such judgments during a protest action.

The seventh member proposed a "Not Sustained" finding, meaning there is insufficient evidence to prove or disprove the allegation.

The two people finding the officer out of policy recommended a Letter of Reprimand. In a welcome surprise, the Chief went with this 29% vote, finding a violation of policy and issuing the Letter.

The Board recommended there be clarity about what constitutes an "immediate threat" which could justify use of force, particularly in protest situations. The Report does not explain in what way the Bureau amended this proposal to adopt it.

Case #2: This incident was written about in the media, as it was the subject of a contempt of court finding due to Officer Taylor firing a "less-lethal" weapon 15 times after a judge's order not to do so. That order was given on June 26, 2020. The incident at North Lombard and Denver took place on June 30, four days later. Some Board members pointed to this short turnaround time to excuse why Taylor may have violated the order.

Again, this was heard by a seven member Board. Four members voted to sustain each of four findings: that the officer used excessive force firing first five, then ten rounds, and that each of those deployments violated the judge's order (against Directive 315.00 Laws, Rules and Orders). The four person majority found there was no active aggression at the time Taylor fired the first time. In fact, he escalated the situation by grabbing the protestors' banner and getting into a tug of war with them, making the scene "chaotic." The same four said there was no active aggression either, shown on a video, when people tried to help up a person on roller skates. There was a debate about whether they were trying to "unarrest" that person; the majority concluded that was not the intent. One of the four, though, thought Taylor's actions were justified but because the judge ruled the weapon use in contempt, they agreed with the vote.

The three others wanted to "exonerate" Taylor (find him in policy) on both of the weapons use charges. They said he acted within training and policy, and that information on the judge's order came by a memo and over the radio, not a formal training. In both cases, one of these three wanted the finding on the violation of 315.00 to be "Not Sustained."

Of the four finding Taylor violated policy, two wanted him to get one day off without pay, mitigated because of his training. One person wanted two days off because of the multiple violations. A third wanted a Letter of Reprimand because Taylor supposedly followed training. It's strange, given these recommendations, that Chief Lovell imposed Command Counseling, a far lower level of discipline than the two days off and even lower than the Letter of Reprimand.

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Commander Hurley's appearance at the Lents Neighborhood Livability Association (LNLA) meetings was also documented in the media. It's not clear why only her comments about District Attorney Mike Schmidt were under scrutiny, as she also encouraged the attendees to blame Commissioner Jo Ann Hardesty for her policy-making. Maybe it's just more white supremacy as Hardesty is Black and Schmidt is white. In any case, the public previously heard about this case that (a) IPR Director Ross Caldwell did not think it was worth investigating because police make such comments routinely,*-6 and (b) that the State had fined Hurley $225 for violating elections laws by advocating about a candidate as a public official.*-7 A report about PPB bias conducted by the OIR Group stated that Hurley was going to appeal that finding.*-8

According to the PRB Report, Hurley decided not to file that appeal. The Board considered that a member of LNLA asked "how do we recall [Schmidt]?" and the Commander replied "sure, sure, recall him." She added that when it comes time to vote, "vote no." The vote by the PRB was 4-0, which is strange because five people are listed recommending discipline: four who wanted Command Counseling and one the slightly more meaningful Letter of Reprimand. Their logic was that a judge had ruled she violated the statute, and she paid the fine, so she had violated the policy. Nothing was made of the fact that Hurley was _in uniform_ delivering these remarks, which should also have led to a violation of 313.20 which says officers can't conduct political advocacy in an official capacity.*-9

The Board made one two-part recommendation, first to have the City Attorney train officers at election time about the rules, and the other is to send a memo over their computerized learning system at that time as well. The Bureau adopted the recommendation(s).

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The case that led to a settlement where Officer Brian Wheeler reportedly was found out of policy for two violations did not get published this time, even though that information was made public in October and November 2022.

As with the last report, no officer agreed that they committed misconduct and accepted their corrective action using the procedure known as "stipulated discipline." The last such case reported was in the September 2021 PRB Report.

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PCW continues to ask the Portland Police Bureau (PPB) to include the following data points to improve the readability, clarity and transparency of the Reports, and adds that the dates of the hearings and reports should be added back in:

--the date of the incident in question;

--the number of voting members and number of votes
(as noted, one case did not account for a fifth member's vote);

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

--the gender of all persons involved (both for clarity in
narratives when using pronouns and to reveal power dynamics);

--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,
(which should go beyond saying if they were "accepted"
and add whether/how they were implemented); 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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The community has led a decades-long struggle to demand transparency from the Bureau, which it lists as one of its goals.*-10 For a long time, the PRB reports had large chunks of information redacted, leading PCW to play the game of "Police Review Board Mad Libs," filling in the gaps with nonsense words. After the Bureau lost a lawsuit by former Sgt. Liani Reyna, they decided to redact the case numbers to make it harder to connect PRB outcomes to Internal Affairs/IPR investigations. However it's not clear why the dates of the PRB meetings or the individual reports are being redacted. It seems that this unnecessary withholding of information goes hand in hand with the Bureau's recent decision not to reveal the names of officers involved in deadly force cases for fifteen days, which was based on dubious claims that would somehow provide safety for the officers.

PCW calls upon the Bureau to build trust by erring on the side of including more information, not less. It should not be up to us to put two and two together for high-profile cases like shootings and those included in this Report.

Finally, the community members who rotate onto PRBs are supposed to represent the public's interests, but never hold meetings or debriefings to hear feedback and input. PCW once again calls for those members to hold a meeting every time a PRB Report comes out to answer questions about the process.

--dan handelman
--Portland Copwatch

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*2- The Report can be found at 2023/download
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*4- Portland City Code 3.20.140 (I)(2)
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*5- Portland City Code 3.20.140 (C) (1) (a) (5)
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*6- Willamette Week, March 23, 2021
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*7- Willamette Week, December 11, 2021
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*9- activity
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Posted May 31, 2023