Semi-annual PDX Police Review Board report shows amazing misconduct
ANALYSIS: Semi-annual Police Review Board report shows amazing misconduct, mixed discipline, little about shootings (July 2015)
After reading the January 2015 Police Review Board (PRB) report posted sometime about July 16, Portland Copwatch finds that the range of misconduct identified is astounding. We also are left with the impression that while some of the application of discipline was appropriate, others seemed to minimize very serious matters.
ANALYSIS: Semi-annual Police Review Board report shows amazing misconduct, mixed discipline, little about shootings (July 2015)
This article is posted at http://www.portlandcopwatch.org/PRBanalysis0715.html
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From: Portland Copwatch
To: Christopher Paille, Police Review Board Coordinator
Chief Larry O'Dea, Portland Police Bureau
cc: IPR Director Constantin Severe
Auditor Mary Hull Caballero
Mayor/Police Commissioner Charlie Hales
Members of the media
US Department of Justice and Compliance Officer/Community Liaison
January 27, 2015
Mr. Paille and Chief O'Dea:
After reading the January 2015 Police Review Board (PRB) report (posted sometime about July 16 at ), we find that the range of misconduct identified is astounding. We also are left with the impression that while some of the application of discipline was appropriate, others seemed to minimize very serious matters. For example, the officer who apparently created a "tough guy cop" YouTube video using footage from an investigation into whether he committed misconduct by pushing a person in the Detox center got a slap on the wrist (we labelled this case B3). As with the previous two reports, there is useful information following the change to the PRB ordinance in 2014, including disciplinary decisions and explanations about why the Chief varied from the "discipline matrix." However, there are still many details-- including the gender of the officers involved-- which are not being included in the reports, making them difficult to follow and obscuring the goal of transparency. This report includes 17 new case reports- - several of which encompass multiple incidents-- and one case file that was previously published.* Two of the 17 are the shootings of Paul Ropp (April 16, 2014) and DeNorris McClendon (September 1, 2014); one other deals with the use of a Pursuit Intervention Technique (PIT) stop as a use of deadly force (December 18, 2013/case B1). While more details are given on these cases than in the past, the reports still do not indicate that there was any serious questioning of whether the shootings were justified and in policy.
We continue to be confused with the Bureau's policy of not releasing names of officers involved after those names have appeared in the media. We believed this was the intent of one of the changes made to the ordinance in 2014. The abovementioned officer who made the YouTube video, which was labelled as being from "Ghetto Entertainment" in the PRB report, was listed in the Oregonian as Alfonso Valadez, Jr. The officers in the Ropp and McClendon shootings were Jason Worthington and Michael Honl, respectively. An officer who vandalized his neighbor's car, didn't notify his supervisor of his arrest, failed to report for duty and consumed alcohol while on probation was Homero Reynaga. In addition to those incidents, which were reported as a community complaint (which we will label C3) and occurred on December 31/January 1 2013/2014, Reynaga was investigated by the Bureau for unprofessional behavior (passed out drunk in the back of a taxi) and for violating the same probation a month earlier on December 1 (case B4). The recommendation that he be terminated was made moot when Reynaga resigned.
But because of all the redactions (which we hoped would end after we introduced the game of "Police Review Board Report Mad Libs" last time), it's not clear whether one officer who was found out of policy and given 10 hours suspension without pay (case B9) might be Edgar Mitchell. We suspect it was Mitchell because the circumstances of the misconduct are similar to what Mitchell did when he approached suspect Kelly Swoboda's van: he noted one license plate from his car and let the suspect go, only noticing the front license plate didn't match after Swoboda walked away. It's not clear why this action is considered serious misconduct but not the part of the same incident in which Officer John Romero confronted Swoboda alone when backup was mere blocks away, even though Romero's actions led to his decision to shoot and kill Swoboda (and Romero's getting shot in the hand). If our speculation is correct, it seems that Mitchell was punished for triggering the shooting, which even for our group's exacting analysis, seems like a stretch.
We counted 50 allegations in the 17 new cases, of which 34 were found "Sustained" or "Out of Policy."** Interestingly, one of those findings was attached to the PIT stop deadly force case, but had to do with a supervisor who failed to adequately communicate during the pursuit. All other allegations in deadly force incidents were found "In Policy." We continue to believe that the findings on deadly force cases should be "Sustained," "Unproven/Not Sustained," "Unfounded" or "Exonerated" like all other cases, and that the Bureau's shell game of "automatic review" for these serious cases should not be used to prevent civilians from filing complaints or appeals in deadly force cases. (As we've noted before, the policy for _all other cases_ is that if a civilian is involved, it is investigated as a "C" / community complaint, but deadly force cases are labeled "B" or "Bureau only.)
There is one case where use of force was found out of policy-- a mixed Bureau/Community complaint (one of two new ones, labelled B/C 1 here) in which an officer punched a suspect in the face even though another officer had the person in custody.*** The person's tooth was knocked loose by the officer. The connected Bureau case involved the same officer continuing a chase after the Sergeant in charge called it off, not using lights or sirens, and ending up having a head-on collision with another cop car. And yet, the Review Board only suggested the officer receive a "Letter of Expectation" for these two egregious incidents. Fortunately, the Chief went for 10 hours suspension without pay.
While the Police Review Board automatically reviews some cases, they also meet if a finding is "controverted" by the Bureau's Professional Standards Division or the Independent Police Review Division (IPR); that is, if one of those entities disagrees with the Commander's proposal. These reports should indicate how cases came to the Board so it's clear when that part of the system is invoked. Such information will let people know how well these safeguards are (or are not) working.
Only four of the cases were solely "C" (community member involved) complaints. Those and the two B/C cases accounted for 14 of the 34 Sustained Findings. However, in the case of the "Bureau- only" investigation of Valadez's "Ghetto Entertainment" video, the PRB noted that the person in Detox had his/her privacy and medical information compromised, so that should probably have also been categorized as a "C" case.
The only two officers recommended for termination (of 30 being investigated) resigned before that discipline could be imposed. Apart from Reynaga, an officer was found to have failed to show up in court under subpoena and filled out timesheets inappropriately. One time the officer put the name of a "ride along" on the time sheet; the other time an overtime slip was filled out for writing a report that wasn't finished until the next day. It was this 11-line report that supposedly took 1/2 hour to write which led to the finding of "untruthfulness" and the proposed firing (case B6).
As has often been the case, many of the decisions of the 5-member Board-- which includes an Assistant Chief, the officer's commander, a peer officer, an IPR director, and a community member- - were unanimous. We still feel the cases in which there were split decisions should indicate whether it was a civilian, peer officer, or someone else who voiced the minority opinion. Seeing a pattern in such votes may mean that pool of PRB members either needs more support from the facilitators, that they need more training, or that they are showing bias. (The board expands to 7 members in deadly force cases, adding one peer officer and one member of the Citizen Review Committee.)
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STILL NEED MORE INFORMATION ON SHOOTINGS
The two shootings incidents covered are each summarized in three-page reports, which still seems inadequate for the complexity of the events and investigations. This minimalism is made worse by the practice of literally cutting and pasting paragraphs, for the two key officers in the Ropp case and for each responding officer/supervisor in the McClendon case. The narrative does not describe what these officers did, it only describes what officers are expected to do and states that the Board found their actions in policy. The individual narratives in both cases, though, are an improvement over the even more terse previous reports.
On the Ropp case, in which Officer Jeff Dorn and his canine were shot trying to apprehend suspects in a robbery, there is information about Dorn ("Employee 1") having tourniquets applied to his wounds, but no mention of how he was injured. There does not seem to be any discussion of whether actions aimed at Ropp were for self defense or out of retaliation for his allegedly shooting Dorn and Mick the dog. There is analysis of the physical force used by the K-9, which is referred to as a "tool"; probably anyone who owns a dog (including the officers in the K-9 unit) don't think of their animals as "tools." The slightly less objectifying term "preventive measure" is also used and is probably preferable.
The McClendon case, which ended with the young African American man who was in mental health crisis being shot in the legs with a shotgun, had no analysis regarding whether the officer deliberately shot at the man's legs. Since this incident happened just weeks after Michael Brown was killed in Ferguson, we hope that the officer made the choice not to shoot at "center mass" knowing that killing a person in mental health crisis, and particularly a young black male, was not a desired outcome on behalf of the community at large. Lethal shotguns have rarely been used by the PPB for shootings in the 23 years we've been observing. The issue of choice of weapon is touched on briefly by the Board's recommendations in a suggestion to evaluate the Directive about "supervisory requirements for slugs and shotgun carry load." The vagueness of the recommendation is unhelpful to outsiders who were not at the meeting. Another recommendation, that the PRB analyze the actions of Commanders in Charge of critical incidents in the future, is a good idea. We are surprised it was not already part of the investigations (er, reviews).
The suspects in both cases survived their injuries, yet the system does not allow them to testify about their perspective before the Board, whose 7 members found all aspects of both incidents "In Policy."
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BUREAU CASES STILL OUTWEIGH COMMUNITY COMPLAINTS
In addition to the two previously mentioned Bureau/Community complaints that were combined, nine of the 17 new cases were classified as "B" (Bureau only). Below are some observations on the four Community cases, the two combined B/C cases, and the nine Bureau cases.
C1: An officer at a High School football game inserted him/herself into a fight, restrained one of the participants, and identified as an officer. The findings were that the officer acted inappropriately off- duty (with mention of the use of force, but that wasn't one of the allegations investigated) and failed to report the incident, resulting in 10 hours' suspension without pay. The one board member who instead recommended command counseling was probably the same person who felt the force used was reasonable. This is the kind of vote where it would be helpful to know whether that was the Officer's supervisor or someone else. The officer also was accused of using profanity but there was not enough evidence, so that allegation was "Unproven."
C2: An officer cleared a call after a woman (gender unredacted) ran in and out of a house that wasn't hers. The officer cleared the call, went back, and cleared the call again. After a second officer was called, the woman was located and taken into custody. The PRB report on this incident is very confusing because both allegations are identical, saying that "/redacted/ failed to investigate and write a report about an attempted robbery that was reported to /redacted/ on 12//redacted//13," apparently, in reference to the officer's two visits to the same residence. This report somewhat helpfully notes that the same officer had a history of discipline over the previous two years, which led to the punishment of 40 hours suspension without pay.
C3: This is the case where Officer Reynaga was accused of "vandalizing a vehicle at the /redacted/ at /redacted/," clarified in the PRB summary as "a car belonging to a community member." In addition to the violation of law for that act, Reynaga's failure to report to duty the next day (presumably because he was in jail) and alcohol consumption were found out of policy (though two members thought the failure to report was "Unproven" since it was New Year's Day and the usual staff was not on duty). The allegation that he failed to report his arrest was found "Unproven" in a 5-0 vote because the Directive (315.00) was not clear about how long an officer can take to do so. When the Directive was revised in 2014, the word "immediately" was added.
C4: An officer responding to allegations that a 17 year old was molested by a 16 year old minimized the probable crime by referring to the teens' "raging hormones," and failed to conduct an investigation, which jeopardized the criminal proceedings. The officer was specifically found out of policy for poor communication with the teen's adult guardians (genders redacted), failure to respond to a sexual assault, stating there was "no report required" despite mandates on such cases, and failing to report a crime. The notes state that this officer continued to misinterpret the state law even after others explained it. As a result, the officer was given 40 hours suspension without pay.
B/C 1: As noted above, the officer involved in these two incidents hit a suspect in the face even though another officer had the person in custody, and two months later crashed into a police car even though the chase had been terminated. The Review Board cited the officer's lack of "impulse control." Two of the five PRB members thought the Force complaint should be "Exonerated with a debriefing." According to the truncated summary of the case, the Chief explained his upping the recommended discipline by noting how severe it is to strike a suspect under control.
B/C 2: The officer in this case received multiple sustained findings for poor performance, failing to arrest a person who was in violation of a restraining order, and in another instance cancelling a domestic disturbance call when the wrong address was initially given by dispatch. The officer also asked a homeless person ("transient") to leave from outside a coffee shop but never went in to check with the caller, who had reported the person was threatening people with a knife. Those were all classified as "B" cases-- even though they all involved Community members. The "C" case was a second incident in which the officer did not make a mandatory arrest for violation of a restraining order. (Two allegations about inappropriate use of sick time and untruthfulness-- because the officer was seen at a party after claiming to be sick-- were both found "Exonerated" or "in policy." Go figure.) The result of these serious violations of state law and duty as an officer? A Letter of Reprimand, even though two of the five PRB members recommended 10 hours suspension. The report notes that the officer had "stress" in his/her personal life and had no past discipline. It seems to us that this person has a huge problem with following through on domestic violence situations and needs retraining, at the least.
B1: This is the case involving the "PIT" stop listed above, which involved kidnaping suspect Michael Allen who led cops on a chase from Vancouver to Portland (while this incident was reported in the news, we could not find the names of the officers). Interestingly, the officer who rammed the suspect's vehicle was found in policy but given a "debriefing" because he said he was going to "take him out" (the suspect-- gender unredacted) and broke the window of the car out in violation of training. This is a good example of why deadly force cases need to be treated like regular complaints-- the smashing of the window should have been considered as its own action and probably would have been found out of policy. The Sergeant who _was_ found out of policy for not properly taking charge of the situation was given Command Counseling as corrective action. Two other Sergeants received a debriefing for not saying anything while in the tactical planning room; the fourth Sergeant was spared because he/she did take command. One reason the first Sergeant didn't take charge is that apparently it was unclear whose district the chase was located in, so the PRB recommended a policy be developed to clarify future events. Again, it's not clear why this is a "B" case since a civilian was clearly involved.
B2: In July, 2014, an officer learned of potential harassment, but took until late August to report it to a supervisor. It appears that this incident happened in the Transit Division (as the report refers to a unit involving 13 agencies). We've written many times before about the pitfalls of having officers under the supervision of the Portland Police but whose disciplinary actions are controlled by other Police Departments, in particular the complexity of a community member filing a complaint. The Bureau of Human Resources decided not to pursue the incident, because the Portland officer was not the victim or a witness. The finding on the accusation of failing to act on discrimination was "Unproven with a Debriefing." Since only "Sustained" findings usually go to the Board, we wonder how this case came to the PRB.
B3. This is the case of Officer Valadez and his YouTube video. The specific "Sustained" findings against him were two counts of wrongful dissemination of information-- from administrative and criminal investigations****-- and unprofessional behavior. The officer admitted what he did, apologized, and the Board wrote off the potentially criminal video as "youthful poor judgment," noting that Valadez had five commendations and no prior offenses. Two Board members recommended 20 hours suspension, two recommended 10, and one suggested a Letter of Reprimand. The Chief imposed the 10 hour discipline. The potential damage from the violation of the person's privacy (in Detox) does not seem to have been a factor, much like the case in the last report in which an officer used the police data systems to look up people who were engaged in a personal dispute with him/her.
B4. Officer Reynaga was arrested after being transported by ambulance to the hospital when he passed out in the Taxi cab in December 2013. His unprofessional behavior and violation of his probation led to two Sustained findings and as mentioned above, a recommendation for termination which he avoided by resigning. Incidentally, Reynaga was less than 7 months away from the end of his probation.
B5. In July 2014, an officer violated the communication order barring officers involved in an incident under investigation from speaking to one another about the case. The officer admitted to doing so, saying he was "trying to avoid a drawn out process." Because he turned himself in, the PRB was split between recommending 80 hours suspension without pay (3 members) and 40 hours (2 members). Chief O'Dea, however, decided to suspend the officer for 120 hours because he felt the PRB was too lenient, citing the Bureau's need to conduct internal investigations with integrity. The Chief initially proposed firing the officer but changed his mind after a "mitigation" hearing where the officer (who had many years of experience and a high rank) apologized. The details on the discipline process in this case are just the kind of thing the community needs to know, and we want to highlight this particular report for its thoroughness on that aspect.
B6. The officer found guilty of filing inappropriate time sheets using a ride-along's name / falsifying overtime for an 11-line report and failing to appear at a court hearing under subpoena committed all of these offenses in a four month period. The same officer may also have filed a late report and inappropriately tried to trade hours on a holiday with another cop, meaning the offending officer would get holiday pay but the replacement cop would not. Both of those findings were "Unproven." Regardless, the seriousness of the untruthfulness and the fact that the officer refused counseling led to a termination recommendation, which the officer avoided by resigning. The PRB stated that "you can't teach integrity... the badge and the uniform represent truthfulness."
B7. In another case involving sick time, an officer (with some kind of physical ailment) was found out of policy for using 100 hours of said medical leave to expand on "weekends," claiming that filing for disability claims with the FPD&R board was too complicated. This same officer missed court on 19 separate cases, causing them all to be dismissed. The officer has a work improvement plan and was only given 10 hours suspension without pay despite perhaps letting 19 offenders go free. (Not that we generally are upset about that given our society's prison system, but it does seem to fly in the face of the duty of an officer, and the suspects had to spend time preparing for and showing up in court unnecessarily.) Once again, it's not clear why the civilians whose court cases were affected (whether the accused perpetrator or victim, if there were any) does not make this a "C" case.
B8. We think this DUII case was the August 7, 2014 incident when Sgt. James McMurray crashed his car in Gresham and was cited for DUII, reckless driving and Criminal Mischief-- but it's not clear. The report blacks out the name of the city where the accident occurred, but notes the time was 10:11 AM, which coincides with the time given in a KGW news story on the case. None of the online stories, though, mentioned that the officer also urinated in public after the crash, which led to one of the two "Sustained" findings by the Review Board; the other was for the DUII. Recommendations for discipline were split between 80 or 120 hours time off, with the lower number in part because the officer had many commendations. The Chief opted for the 80 hour time, perhaps because the officer also helps others working to deal with alcohol issues.
B9. As noted above, this appears to be singling out Officer Edgar Mitchell for making contact with Kelly Swoboda while still in his patrol car, noting the van's back license place, and only noting the mismatched front plate after Swoboda had walked away. According to the PRB report, this is against training and caused risk to safety. While we do appreciate noting how officers' early actions may later lead to more serious use of force, we're not 100% convinced in this case that punishing Mitchell while praising Romero is a fair outcome.
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MORE INFORMATION WE'D STILL LIKE TO SEE
We've noted before and will note again, the PRB's semi-annual reports could benefit from consistently including:
--the date of the incident in question (included only in a few cases other than the deadly force cases);
--whether a complaint was generated internally, by a community member, or from another City agency (and whether it came to the Review Board because of a proposed "Sustained" finding, a "controverted" finding, or because the type of case triggers an automatic review);
--the number of voting members and number of votes (this report is much better, but still falls short a few times);
--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;
--more thorough background summaries for all cases (this area is also showing improvement).
As in the past few reports, all of the dates the Review Boards were held were listed.
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In our last analysis, we asked to see the Bureau's tracking list of all the recommendations it receives, including those from the PRB. We recognize that such a list is crucial to the institution of the US Department of Justice Settlement Agreement and for continuous institutional improvement. We understand the Chief was very happy with receiving feedback on the proposed policies on body worn cameras; we hope that public input will be sought on these other policy issues as well.
We asked the Public Information Officer and the PRB Coordinator both to send out a news release when the PRB report was posted on the web, which once again did not happen. As we've said before, because the PRB's work is done behind closed doors, these reports are the main insight the community has into the discipline process. The 20 or so community members who act as the "pool" to sit on the PRB never hold public meetings or are called to report to City Council. We hope to see all of these ideas instituted to create a more community-oriented process.
PS We continue to be confused as to why these reports are labelled "Performance Review Board" when that body was absorbed into the current Police Review Board structure in 2010.
* The Report contains one entire case file that was printed in the January 2015 report, about Officer James Escobar not registering his vehicle and other shenanigans.
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** Once again, we note that the seemingly high "Sustain rate," 68% this time, is partly because the PRB is called in whenever a Commander recommends a Sustained finding.
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*** Not having the IPR's annual report for 2014 yet, our statistics show this would be the 12th force allegation out of well over 1600 which has been sustained since 2002, a less than 1% sustain rate for Use of Force.
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**** The PRB report summary incorrectly lists both as information from criminal investigations.
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