Sept 2023: Police Review Board "March 2023" Report Part 2: Four Cases, Still No Shootings Included
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To: Elizabeth Vogan, Police Review Board Coordinator
Police Review Board "March 2023" Report Part 2: Four Cases, Still No Shootings
On August 15, the Portland Police Bureau quietly updated the year's first Police Review Board (PRB) Report by adding four cases.*-1 This brings the total number to seven in the Report marked "March 2023." Portland Copwatch (PCW) released an analysis of the first part back in May, shortly after it was first published, and below is an analysis of "Part 2," which notably like its predecessor contains no deadly force cases despite the PPB being involved in 17 shootings in 2022 and 2023.*-2 Once again, the Bureau has redacted the dates of the PRB hearings and the dates the individual case reports were filed, although most of them include the year this time-- 2022. There are two protest cases, one of which is likely that of medic Evelyn Cushing being pushed by Officer Brian Wheeler's baton in 2020,*-3 one case of an officer misusing a police car and official parking space, and the discipline decision in the notorious training slide case involving Sgt. Jeff McDaniel.
As a reminder, the Police Review Board is generally made up of three members of the Police Bureau, a staff person from the "Independent" Police Review (IPR), and a community member picked from a pool of about 15 people. In more serious cases an extra officer of matching rank to the one involved and a member of the Citizen Review Committee are added.
Two of the cases apparently came to the PRB because the officers' supervisors were proposing "Sustained" (out of policy) findings. The others were referred by all three bodies allowed to review the original proposals: the IPR, the Bureau's Internal Affairs division, and an Assistant Chief. Both protest cases were investigated after the affected community members filed lawsuits.
When they find wrongdoing, the PRB makes recommendations to the Chief about discipline, although in what PCW thinks is a first for a case that didn't go to City Council, the PRB was only allowed to contemplate the discipline in the training slides case. The Board recommended either one day, two days, or three weeks (120 hours) suspension without pay. The media has reported that the Chief wanted to fire McDaniel, *-4 but instead landed on a 100 hour suspension, as noted on the cover sheet for Part 2. In one of the two protest cases, the Chief agreed to discipline one officer even though only two out of six PRB members suggested misconduct had occurred (it's not clear why this number is not five or seven). In the other, he applied a day off without pay even though only two of seven proposed that high of a disciplinary action.
The Board also made three policy recommendations, of which the Chief's office accepted two and rejected the third.
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.*-5 The PPB has never done so, even in deadly force cases or the two cases detailed below where the names are known.
As with the last two reports, no officers 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.
Case #1B: The first case, which involves a person hit in the leg with a "less lethal" munition at a protest in 2020, led to split decisions by the Board. Three people thought the complainant was engaged in active aggression after an officer took their guitar away, but proposed a "Not Sustained with Debriefing" finding. That means there wasn't enough evidence to prove or disprove the claim but the officer should get talked to. These three agreed that the complainant was moving away from the officer at the time force was used, but couched that as a split-second decision that was made based on the officer's perception two seconds earlier. One felt the officer was justified in the "totality of the circumstances" and proposed "Not Sustained" without a debrief, though that logic sounds more like an "Exonerated" finding (in policy).
The other two Board members wanted to "Sustain" the allegation because they say the complainant may have engaged in active aggression earlier, but was not at the time, so using that earlier behavior is not allowed under the Bureau's Force Directive. The Chief apparently agreed, and along with Mayor/Police Commissioner Ted Wheeler, imposed the day off without pay discipline.
The Board suggested that Incident Commanders at protest actions be trained about the impact of the orders they give subordinates regarding when to use force. Deputy Chief Mike Frome agreed with this. However, he rejected the idea of holding debrief sessions with officers and community members after protests because the City was working on the contract for outside review of the PPB's crowd control. Now that the crowd report is out, it seems the PPB should revisit this idea.
Case #2B: Putting together the narrative from the Report and mentions in documents from the US Department of Justice Settlement Agreement, PCW is 90% sure this is the case of Evelyn Cushing, who was pushed to the ground at a protest on September 23, 2020 despite being clearly marked as a medic. (Cushing was also awarded a $47,500 settlement in October 2022.) The PRB report narrative affirms that Cushing was marked as a medic, complying with a dispersal order, and not engaging in active aggression when Officer Wheeler pushed her down with a baton, causing injuries. It says she was "passively walking" by the line of police when the officer, who could not specify a threat, used force. This led to unanimous 7-0 votes to find the cop violated the Force Directive AND the Directive on "Satisfactory Performance." The discussion on the latter included how unwarranted force can become a "flashpoint" and increase the crowd's anger at police.
Strangely, one Board member said the force was within training and the law, but in violation of policy.
When it came to proposing discipline, one Board member (maybe the same one?) expressed concern that an out of policy Force finding could hinder the officer's ability to get a promotion. Yes, and? That's not a reason to erase history. One suggested a Letter of Reprimand, and four wanted an even lower level of action known as Command Counseling. They all referred to this being the officer's first misconduct finding in three years, which isn't much of a mitigating factor in the big scheme of things. As noted above, two members called for a day off without pay, which was what was imposed by the Chief and Mayor.
Case #2B: This case involved a Sergeant who, while in the role of "Acting Lieutenant," was allowed to take home a police car and park in a special Bureau parking space. Other officers complained when the Sergeant, no longer in their temporary promotional capacity, continued taking both of these privileges for themselves. The Sergeant admitted to both allegations, leading to two 5-0 votes to "Sustain" allegations of unauthorized use of Bureau resources. There was also a unanimous vote to suggest a day off without pay, which the Chief and Mayor accepted. The interesting thing about this case is that it had no direct impact on the community, was filed by other officers, and admitted to by the suspect cop.
Case #4B: The training slide case. Setting aside that the training slide deck in question also included recommendations to violate people's rights and rather overt suggestions that white people are peaceful while Black people are violent, it's interesting that the Board was only allowed to deliberate on what the discipline should be. Notably, the Report doesn't say what the original proposal was, so it's unclear whether the termination letter for Sgt. McDaniel came between the PRB hearing and the 100 hours disciplinary decision or before. Also of note is that there were two sustained Conduct allegations about sharing the PowerPoint presentation with officers and adding the one slide considered, which was an "alt-right" prayer about beating up "hippie" protestors. A third allegation that McDaniel failed to give the lesson plan to the PPB was found "not sustained" even though the Training Directive requires such scrutiny. Hmm.
In any case, there were only four votes counted for this hearing, two who wanted one day off without pay, one who wanted two days off, and one who wanted three weeks off due to the bad press the Bureau received for the slide deck. This person mentions that this was McDaniel's first discipline in seven years, though others say it was the first in three years. The deck was created in 2018, and McDaniel was famously seen spraying pepper spray directly into the mouth of an Occupy Portland protestor in 2011. It's not clear that connection was made anywhere, in terms of his actions or how the attitude that allowed such brutality matched the "humor" of the alt-right slide.
As noted above, the Chief and Mayor ended up giving McDaniel 100 hours off without pay, which confusingly is equivalent to 10 days because most officers work four 10-hour days each week.
The Board recommended there be training on neuroscience and the emotional impact of crowd control actions, and the Bureau agreed.
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:
--the date of the incident in question;
--the dates of the PRB hearings and when the reports
--the number of voting members and number of votes
--which opinions were from officers, civilians,
--the gender of all persons involved (both for clarity in
--the names of officers, particularly in cases which have already
--more thorough background summaries for all cases, especially
--an explanation of the delay in publishing a case;
--a general summary of the purpose of the PRB with a citation of the
--reports on the progress of PRB recommendations,
--a list of the names of the civilian members of the Board, which
Even though the identity of two officers and one community member are easily discernible from the Report, the Bureau continues to withhold important information from the public while it boasts that the PRB Reports prove they are a transparent agency. The Bureau exacerbates the mistrust in the community by further removing data like the dates of PRB hearings from these Reports while elsewhere enacting a delay in identifying officers involved in deadly force incidents from 24 hours to 15 days.
PCW continues to urge the Bureau to be more open and truthful, and to include the community more in the PRB process by holding public meetings to discuss the Reports when they are published. This might slightly make up for the fact that the media and the community-- including those harmed by the police-- are not allowed to be part of PRB hearings.
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Posted September 12, 2023