Jan 2024: Police Review Board December 2023 Report- Cop Disciplined for Role in Shooting

Table of contents
Deadly Force: Getting Away with Homicide/Attempted Homicide
Community Members Mistreated but Punishment is Minimal
Three Officers Resign Before Being Fired
Nothing Against Recreational Marijuana, But Cops Aren't Allowed
A Note About Stipulated Discipline
Same PCW Suggestions for Better Reports

To: Elizabeth Vogan, Police Review Board Coordinator
    Chief Bob Day, 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

Sergeant Lightly Disciplined for Taking Role in Shooting and Other Police Review Board News 2024
New Details Emerge on Former Police Association President's Double-Duty Violations
an analysis by Portland Copwatch January 9, 2024

As the clock ran down in 2023, the Portland Police Bureau quietly published its second Police Review Board (PRB) for the year on December 27. It contains one of the only instances of discipline against an officer for their involvement in a deadly force incident-- but Sgt. Norman Staples was given the low-level Letter of Reprimand for stepping out of his supervisory role to shoot Joshua Degerness in December 2021, not for shooting and wounding the man. The Report contains ten cases, five of which are about officer misconduct not directly involving the community ("B" cases), two are deadly force cases ("B/C" cases in this analysis) and three involved community members. Overall, there were six sets of discipline handed out, three officers resigned before being fired, and one case resulted in no misconduct findings for the involved cop. As is becoming a pattern, Portland Copwatch (PCW) appears to have found this report before the mainstream media; it can be found at ( https://www.portland.gov/police/divisions/prb-reports).

As with the first 2023 Report published in May (and updated in August), there are a number of blacked-out items that were not redacted in previous years which seem contrary to the Bureau's professed value of transparency. The dates the hearings were held, the dates the memos on those hearings were published, and even things like the name of the Multnomah County Detention Center and the Clark County Sheriff's Office (CCSO) are redacted. With more time (and if these weren't such serious matters), PCW would fill in the blanks like our previously-imagined game of Police Review Board Mad Libs.

The dates of the two shooting incidents are included, so in addition to Mr. Degerness, it's easy to discern that Case #6 (B/C 2) is that of Brandon Keck, who was shot in a car on I-5 by Officer John Hughes on December 6, 2021.*-1 Case #9 (B5) is also clearly the investigation into former Portland Police Association President Brian Hunzeker, who got his job back despite having incorrectly identified former Commissioner Jo Ann Hardesty as a suspect in a hit-and run, then faced termination for being a full-time employee of the CCSO when he took his job again the with the PPB.

The officer in one of four cases involving officers facing termination for incidents involving drugs or alcohol use is also easy to find: Criminalist Bradley McIntyre arrived and began collecting evidence at a shooting crime scene in February 2021, then drove away when a supervisor suspected something was off about his behavior (Case #7/B3)*-2. He was soon apprehended and charged with DUI for driving his police car with a blood alcohol level of .26. The legal limit in Oregon is .08. McIntyre resigned before being terminated.

The cops in Cases #1 and #3 (B1 and B2) both committed the same offense-- initially trying to avoid a random drug test because they knew they would fail after indulging in marijuana use. Each received a day off without pay and a promise to go to rehabilitation. The officer in Case #1 said they used weed (which is legal in Oregon but not federally, so technically they could be prohibited from carrying a gun) because of PTSD caused by the 2020 "riots."

The officer in Case #8 (B4) was involved in a "one car accident" (ie, crashed their car) while drunk, got out of the car and tried to hide from deputies. This time blood alcohol level was .19. Their proposed firing was mostly for being untruthful, but the cop resigned first.

Rounding out the ten are:

--the Board recommended that an officer who initiated a chase without notifying their supervisor be given a Letter of Reprimand (Case #2/C1; a second officer was not found out of policy in the same case);

--an officer who inappropriately used a "less lethal" weapon against a protestor and received a Letter of Reprimand (Case #4/ C2)

--an officer arresting a woman on a burglary charge at first failed to investigate her allegations of having been raped, and when called back to take her to the hospital said she would be taken to Washington County Jail because the Justice Center was full (it wasn't). He (was assume this was a male cop) received two days off without pay (Case #10/C3).

While the lack of dates is frustrating, as noted above the dates of some incidents can be discerned: the protest was likely from 2020, the two shootings were from 2021, and the Hunzeker case was from early 2023. The dates of the Review Board hearings are harder to pin down, except that three are signed by Elizabeth Vogan, who was not allowed to facilitate meetings until after Council changed the rules to allow that in July 2023. They are also all sent to Chief Bob Day, who took over on October 11, so Cases #7,8 and 9 likely all happened after that. Although they are usually presented in chronological order, the last case, #10 was sent to Chief Lovell by the previous facilitator, Adrienne DeDona. Cases #1 and 6 were sent to Christopher Paille, who stopped being Review Board Coordinator in early 2023.

Most of the cases (six) were referred to the Board, it appears, because the officers' supervisors proposed "sustained" (out of policy) findings and discipline that included time off without pay. Deadly force cases are automatically sent. Case #1 (one of the marijuana cases) was "controverted" by Internal Affairs (meaning they disagreed with something the supervisor proposed), and Case #2 about the chase was controverted by both IA and the "Independent" Police Review (IPR).

While the inclusion of two deadly force cases shows some progress is being made on the 17 incidents in 2021- 2022, only six of those cases have been heard by the Board (according to these Reports and the IPR Director's Report of January 2024). PPB was involved in four five deadly shootings in 2023, so they better hurry up and start reviewing those officers' behavior.

To remind those not familiar with the PRB, it holds hearings to review findings and proposed discipline in hearings held behind closed doors. Regular Boards consist of five people-- three PPB members, an IPR staffer and one community volunteer. Force, deadly force and other serious cases have seven members-- an extra PPB officer and one community member from the Citizen Review Committee are added. City code does not allow any member of the media nor the people harmed by police (or their survivors) to attend hearings.*-3 When they find wrongdoing, the PRB makes recommendations to the Chief about discipline.

This time there was only one deviation from the PRB's majority recommendation. In Case #2, the officer involved in the chase was given Command Counseling, the lowest form of corrective action, rather than a Letter of Reprimand.

It is completely baffling that the same Bureau which posts the names of the involved officers both in its news releases*-4 and its open data on deadly force cases*-5 won't publish the names of officers whose names appear in the media, despite the PRB Code allowing for such disclosure. PCW appreciates that the locations and dates of the deadly force incidents are not redacted, and that the location of the protest case (Justice Center) and gender of the person alleging rape charges were included.

The Board also made six recommendations for policy changes, of which the Bureau accepted four and rejected two.

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Despite the uprising in 2020 across the nation calling attention to how frequently police use deadly force against community members, the number of such cases has not gone down since then, but rather remain steady with force resulting in death about 1000 times per year nationally. The scrutiny and eventual criminal charges against the Minneapolis officers who killed George Floyd are still just imaginary someday expectations in Portland. Meanwhile, officers get away with homicide and attempted homicide in ways civilians never would, made worse by the fact that the administrative investigations considered by the PRB have a much lower standard to determine if the officers violated policy, rather than committed a crime... yet discipline is rare.

Case #5 (B/C1): If the Sergeant Should Have Remained Supervising, How Can the Shooting Be OK?

Joshua Degerness crashed a car after fleeing a traffic stop on December 11, 2021. Officers fired so many times that the car was described by a witness as "bullet-riddled." The PRB found both Sgt. Staples and Officer Kenneth Jackson in policy (on 7-0 votes) because, they were told, Degerness pointed a firearm at police. However, they also found Staples _out of policy_ on a 7-0 vote because he left his position as Incident Commander to take part in the response using his gun, despite many other officers being on scene and capable of providing "cover." Logic would dictate that if the person wasn't supposed to be using their gun or taking part in the action, they should never have fired their weapon, but apparently a->b->c is not part of the calculus for the Board.

Three other officers also used force: one sprayed pepper spray into the car, one used CS gas, and one a 40mm impact weapon. The Board used the same language excusing the first two, referring to resistance and Degerness having "eluded" and failing to comply with officers. The impact weapon was justified, they said, because Degerness' actions were "beyond passive resistance" and it was fired at the rear windshield. (No word if it shattered the glass or injured Degerness.)

When considering punishment for Staples, the Board strangely mentioned his willingness to take an active role... exactly the action he was being held accountable for. This was Staples' first sustained misconduct in three years, leading to the Letter of Reprimand recommendation, which Chief Lovell and Mayor/Police Commissioner Ted Wheeler approved.

The recommendations in this case were to (a) train supervisors to remain in their roles and (b) create training to get people out of vehicles that have been disabled using the Pursuit Intervention Technique. Notably, Officer 2 used this technique, which is force and can be deadly force, without communicating about it-- but wasn't investigated for it. The Bureau agreed to both recommendations.

Case #6 (B/C2): Judge, Jury, Executioner on the Freeway

Brandon Keck had allegedly committed several crimes prior to being confronted by police on I-5 near Lombard, including a home invasion, carjackings and threats. A person who had an injury at first was reported to have been shot by Keck, but it turned out they were injured in some other way. It's strange, then, that the PRB report says he fired his weapon at someone... was that verified by the investigation?

The Board felt that Officer Hughes was reasonable to shoot and kill Keck after (in some unnamed manner) trying to de-escalate, because Keck would not "stand down." Is that a capital offense?

Hughes was found in policy on a 7-0 vote. As has happened many times in the past without explanation, the remaining reviews of officer actions (supervision, medical aid) only list _six_ votes in favor and no abstentions or "no" votes.

The Board recommended two things: (a) that training for supervisors should discuss when Incident Commanders should change roles (similar to Case #5), and (b) that the policy around shootings should permit rather than require involved officers to give a "public safety statement." None was taken on this scene because, the PRB figured, plenty of witnesses gave their testimony about what happened. However, the DOJ Agreement requires the involved officers to give public safety statements (and to be asked if they will do an interview, which has never happened on scene). The PPB rejected the second recommendation, a wise choice.

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Case #2 (C1): Officer #1 decided to chase the suspect in this case. Four members of the Board proposed a finding of "Not Sustained with a Debriefing" (meaning, maybe it was out of policy but there's just not enough evidence either way, and the officer will get talked to) because the Directive allows for chasing a suspected felon who supposedly drove toward the cop in question. One Board member wanted to sustain the allegation because the actual quote from the cop was that the suspect "almost tried to ram me" (not DID try) and that video evidence did not show the car going toward Officer #1. Officer #2 also received the same finding even though they basically were following the lead of #1, with the same findings on a 4-1 split vote.

This case is very unusual because it only involved the review of two out of 10 total allegations, four of which had already been sustained. So in other words, the Board had no choice about whether those decisions were correct, they only could recommend discipline.

PCW thanks the Review Board Coordinator for publishing the substance of the four sustained allegations, which were that Officer #1 (a) failed to manage the incident in a safe manner, (b) did not document their use of profanity, (c) did not process marijuana seized from the suspect, and (d) did not document an interview with the suspect. This led to the outcome listed above. So to be clear, even though the officer did not follow procedure on car chases, they were given Command Counseling for these four acts of misconduct rather than the Letter of Reprimand the Board suggested.

The one person who wanted to find Officer #2 out of policy for the chase also recommended Command Counseling for that officer, but Chief Lovell agreed with the other PRB members and attached the "Not Sustained with a Debriefing" finding instead.

Case #4 (C2): The PRB made the decision to find the officer in this case out of policy despite being spoonfed the biased terminology that their use of force came during a "riot." The narrative isn't clear, but one of the final comments was that the officer in this case should have been acting as a supervisor but felt compelled to step in. This leads us to believe they are the Sergeant referenced elsewhere in the narrative, and to point out the hypocrisy that the Sergeant who stepped into a tactical role in a _shooting_ was held accountable but not this one. Apparently, the community member in this case filed a federal lawsuit, which then led to the Internal Affairs investigation and, surprisingly, the Sergeant's supervisor proposing the sustained finding (from what we can tell). The narrative in this case reveals that the protest was near the "Justice Center" downtown, and the many references to a fence in the summary are probably about the fence the PPB put up around that facility during the 2020 protests. Four members of the PRB noted there was no preponderance of the evidence showing that the use of a "less lethal" impact munition was justified under the terms of the Bureau's policy, which requires the weapons only to be used against active aggression, to prevent escape, or to avoid a "higher level of force," which arguably might mean deadly force in this case.

The person supposedly was walking alongside the fence at the same time as the Sergeant. It's not clear why the Report says these four found the force "objectively reasonable" if they also thought it was out of policy. The Sergeant (probably not the supervisor who made the finding) accused the protestor of "colluding" with others, which only one of the four Board members thought was true.

Two others found the force "objectively reasonable" also and came to a finding of "Not Sustained," which PCW continues to believe that most cops (and PRB members) mistake for "Exonerated/in policy." "Not Sustained" means insufficient evidence. These two said it was a "stressful and chaotic scene," claimed the community member was actively aggressive, and that the person who was shot had charged at the fence earlier (so, not an imminent threat, we add here).

The last Board member wanted to exonerate the Sergeant, saying the force was "to prevent harm to the public" and the officers that night, and to prevent use of more force (again, can you be more specific?). The cops were outnumbered by the crowd, and the fence had been pushed down.

The four who found misconduct suggested a Letter of Reprimand, calling the possibly deadly weapon use a "minor deviation" of the force policy and saying this was the Sergeant's first misconduct in three years. Not reassuring. They cited the event as an "impossible situation." Mayor Wheeler and Chief Lovell agreed and wrote the Letter.

Case #10 (C3): As noted briefly above, the officer in this case arrested a woman for burglary, but did nothing to follow up on her saying that her ex-boyfriend had raped her the previous day. That's well within the 120 hour time frame that Bureau Policy gives to conduct an immediate investigation. The jail staff called the officer's supervisor to have the cop come back, which is when he inexplicably made the comment that he was taking her to the Washington County jail because the MCDC was full. The jail staff supported the complainant on this point. The cop did not remember saying that to the complainant, though he did bring her to the hospital for an exam as part of a sexual assault investigation. The jail staff called the hospital to confirm that the officer actually went there.

Not only did the officer fail to ask the woman follow up questions when she brought up the assault, but he claimed he thought she was on drugs or had mental illness. Another officer heard her say she had evidence of the assault.

For some reason, only four people voted on this PRB, but they unanimously found the officer violated both the Courtesy Directive and the one on Sexual Assault investigations. They proposed two days suspension without pay for the first allegation, noting the officer took no responsibility for his actions, and the same for the second allegation, noting the negative impact on the community. It's not clear whether they meant there to be separate punishments that would add up to four days off, but Mayor Wheeler and Chief Lovell issued a two day suspension. This case was referred to the PRB by the officer's supervisor.

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Case #7 (B3): There's not a lot more to say about Criminalist McIntyre's showing up drunk at a crime scene. The supervisor who noticed something was wrong thought he might be having a medical issue and asked him to sit in the passenger seat of a police car. Instead, McIntyre got into his police car and drove off, only to be stopped by the arresting officers. Doing a little math here, the legal limit for DUI is .08 and McIntyre was tested at .26, which is over three times that limit. The two Directives for which he was found very, very out of policy were 315.00 Laws, Rules and Orders and 316.00 Alcohol Use. However, only four of the five Police Review Board members recommended termination, citing a number of aggravating factors-- the other proposed a three week suspension without pay, saying it was "only" McIntyre's second violation in seven years. Maybe it's all relative? We will never know what the Chief would have done because McIntyre resigned before being fired. He also pleaded guilty to DUI in court.

Case #8 (B4): It's surprising that we could not find this incident in any media reports. As noted above, the officer in this case crashed their car while off duty and drunk, and walked away when Deputies showed up, trying to hide from them.

The very guilty findings were for (a) truthfulness: they did not report the accident or criminal investigation to their supervisor as required and, says the Report, made false and misleading statements; (b) Laws, Rules and Orders: the officer violated several laws including fleeing from an accident scene, and (c) Criminal Investigations, where they had to notify the supervisor of the criminal charges. All findings were 5-0 to sustain the allegations, and the proposal to fire the officer was 5-0 because untruthfulness leads to immediate firing (insert "it's amazing there are any cops left on the force" joke here). Again, this didn't go to the Chief because the officer resigned.

Case #9 (B5): Ah, Officer Hunzeker. You were cast aside by your fellow cops who had you step down as PPA president once the allegations about falsely accusing Commissioner Hardesty came out. One high-up brass was heard saying they were not sad to see you go when you were fired. And then you had the audacity to find another police job while your appeal was pending, but not to leave that job or even tell the Portland Police about it when you got your job back.

It's not clear why the Report blacks out the name of the Clark County Sheriff's Office (or indeed, anything about this case which was covered extensively in the media). Hunzeker was fired from the PPB in February 2022, hired by Clark County in August that year, and then rehired by the PPB in February 2023. According to the media,*-6 he resigned on April 13, 2023. His supervisor sent the case to the PRB, where he was found incredibly out of policy for violating the policies on Extra Employment, Truthfulness, Satisfactory Performance and Ethical Conduct.

The PRB Report notes that the first policy requires officers to fill out a form for up to 20 hours a week of extra work and to get approval. It says Hunzeker used such a form in 2003 so certainly knew about it... and then failed to file that form annually as required despite continuing with his moonlighting. By not answering a question about Clark County and telling another officer not to drive by his house, the PRB found Hunzeker was being untruthful, which as noted above is an automatic terminable offense. He also told the PPB he had some kind of injury but still got paid for 200 hours (a month?) despite working less than 10 hours a week. Hunzeker apparently told the CCSO he asked for medical leave from the PPB but that wouldn't interfere with his duties there (we're guessing it was medical leave, but there's a huge blackout over those words). The Ethical Conduct charge explanation reveals that the 40 hour assignments at PPB and CCSO actually overlapped. When Hunzeker paid PPB the money back, that proved to the PRB that he was unethical (they should have just asked Commissioner Hardesty about that one).

All allegations received 5-0 votes as did the termination suggestion, which used the words "corruption for monetary gain" in the PRB's explanation. Would he have been the first cop we can think of to be fired TWICE by the PPB? Who knows, as his resignation made that question moot.

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Case #1 (B1): It's a little hard to suss out the exact order of things in the narrative for this case, but it sounds like the officer was asked to come in for a random drug test, after which they contacted the Portland Police Association. Someone (the PPA?) notified a supervisor and the Bureau of Human Resources that the cop admitted to using marijuana. They went in and tested positive. As noted above, they said they had PTSD due to the 2020 protests ("riots").

Also confusing is the punishment phase for this case, where the violation of the "Drug Free Workplace" Directive was found on a 5-0 vote. While the corrective action guide says something about substance use, the Directive itself has some guidelines about putting the officer on administrative leave for a first offense and having a rehabilitation agreement while the officer is on desk duty. Three members suggested one day suspension without pay, two wanted two days. Mayor Wheeler and Chief Lovell agreed to the one day suspension and rehabilitation plan.

Recommendations in this case: (a) there should be education, training and peer support about this policy, including by the Portland Police Association, and (b) the Employee Assistance Program should be notified about the substance use policy. The PPB accepted the first (but did the PPA?) but rejected the second, saying it was the officer's responsibility to contact the EAP. Go figure.

Case #3 (B2): The timeline is again fuzzy here, but the Report indicates that the PPA said the officer discussed using marijuana as they were facing a random drug test, and that the PPA Secretary (currently James Habkirk, not sure when this happened though) brought the officer to the test. The five member unanimous finding of a violation of the Drug Free Workplace Directive noted that the officer admitted to using marijuana and tested positive. This summary said that the policy precludes discipline for a first offense, which makes no sense for either this case or Case #1 unless both officers had violated the policy before.

There was another split vote of three PRB members asking for one day's suspension and two asking for two days. The majority cited this being a newer officer in a stressful job and would have to pay out-of-pocket to go to rehab. The minority said the officer knew they had made a bad decision, but said that their PTSD medication had run out, leading to the cannabis use. It also indicates that federal guidelines say neither officer can carry a gun for a full year. Again, Chief Lovell and Mayor Wheeler agreed with the one day off plus rehab plan. There were no recommendations on this case.

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It appears that the effort by the City and the US Department of Justice to allow officers to admit to the wrongdoing and accept a proposed discipline without Police Review Board consideration is not being used much at all. There have been no reported cases of "Stipulated Discipline" since the September 2021 Police Review Board Report. this is one of the few items the Police Accountability Commission carried forward into their proposal to City Council for the new oversight board which the City attorney did not drop from the draft Code.

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PCW once again asks the Bureau to include the following data points to improve the readability, clarity and transparency of the Reports:

--the date of the incident in question,
the PRB hearing, and the supporting memorandum;

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

--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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Following a lawsuit that led to the PPB redacting case numbers from PRB Reports in order to make it harder to put two-and-two together to figure out who's who, they have gone much farther to keep public information from the community. Not only is "transparency" a supposed value of the Bureau, it's also one of the City's core values. These pieces of information are being withheld as the new Chief continues to repeat the not-so-accurate information asserted by the previous Chief that the US Department of Justice had signed off on withholding officer names in deadly force cases for 15 days instead of 24 hours.*-7 It was the FBI, not the Civil Rights Division which agreed to that change.*-8

Once again we urge the Bureau to include more information and to hold public meetings every time a PRB report is released to discuss the process, policies and discipline. Community members sitting in on these hearings are supposed to represent the full community, but they never communicate with anyone else before heading in to make these important decisions.

Thank you
--dan handelman
--Portland Copwatch


*1- Notably this was exactly two years before they shot and killed Isaac Seavey in 2023.
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*2- https://www.kxl.com/portland-police-criminalist-charged-with-dui-while-on-duty/
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*3- Portland City Code 3.20.140
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*4- https://www.portlandoregon.gov/police/news/
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*5- https://www.portland.gov/police/open-data/ois
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*6- https://www.wweek.com/news/city/2023/04/14/recently-reinstated-police-officer-brian-hunzeker-resigns-after-city-learns-he-was-moonlighting/
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*7- Notably, they released the names of the officers who killed Tyrone Johnson II on December 27 just today, January 10, just 14 days after the incident.
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*8- watch the US DOJ Civil Rights Division address this issue at a February 2023 meeting of the Portland Committee on Community Engaged Policing meeting here:
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Posted January 10, 2024, last updated January 14, 2024