COMMENTS ON GANG LIST, TRAINING, PURSUITS AND OTHER DIRECTIVES AUGUST 2015
To Chief O'Dea, Capt. Rodrigues, Captain Marshman, Ms. Prybyl, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board, US Dept. of Justice, Citizen Review Committee and the Portland Police Bureau:
We are submitting feedback on the some of the Directives posted for comment in the month of August. < http://www.portlandoregon.gov/police/59757> While we have seen a few documents from the Bureau outlining changes made when finalizing Directives, we're still frustrated by needing to do line-by-line comparisons to see what was changed. We noted that none of the Directives had substantive changes, including a few which still have undefined abbreviations (CCH in 660.32), typographical and/or grammatical errors.
COMMENTS ON GANG LIST, TRAINING, PURSUITS AND OTHER DIRECTIVES AUGUST 2015
We would still like to see "red-line" versions or at least explanations of what has been changed, and why.
We're not going to make any detailed comments on the Directives around Bureau use of informants (660.32 & 660.33), as we find the practice unsavory. Reading these Directives was a lot like watching sausage get made. One issue, however, that is of great concern is section 184.108.40.206 in Directive 660.33, which implies that a unit using informants can destroy all the information about that informant's role if they are deemed a "problem."
As we've been saying for over a year, the Bureau should number (or assign a letter to) each major section (Definitions/ Policy/ Procedure) to avoid the confusion of having multiple Sections marked "1." Our comments below address Procedure sections unless otherwise noted.
We repeat here that it is fundamentally unfair that the US Department of Justice and the Compliance Officer/Community Liaison are given 45 days to respond to the draft Directives, while the community at large, including organizations which need to share information collectively, only have 30 days. If the Bureau wants meaningful input, you must extend the deadline.
640.05 GANG AFFILIATION DESIGNATION
We note here that the Portland Mercury called out the Bureau for using the term "gang related" to describe many firearm discharges in Portland, even though that term is not defined in the Bureau's Directives. The "gang affiliated" definition, which includes if a person has their name in a "criminalist gang document," whatever that is, allows a person to get off the list in three years. However, the "Purging Process" (Section 1.8) allows a person's file to expire after four years. The definition of a "gang" includes people who "interact mostly" with each other, which could describe any number of circles of friends, political groups, religious associations, or law enforcement agencies.
While the designation policy clearly states that it is not a crime to be affiliated with a gang, that provision begs the question of why the Bureau would create such a list if it is scooping up names of people who aren't themselves suspected of criminal activity (which could be a violation of ORS 181.575).
We believe this process, including the ability to appeal being listed, was put in place in 1996 after a lawsuit against the City. We hope that the parties to that suit are being kept updated about any changes to the process.
We're curious if the method outlined in section 1.4.1 which allows for an appeal hearing to get off the "gang affiliate list" by bringing in a panel of diverse cultural groups, youth service agencies and neighborhood programs still exists.
Our final comment here is that the labeling of people or certain criminal acts as "gang-related" has come to have a racial overtone, even though we are aware there are white supremacist gangs, white motorcycle gangs, and associations of people of color who are not African American. The over-representation of African Americans in the Gang Enforcement Team's stop and search data point to an underlying institutional racism that should be addressed in the policy.
We also support the comments from the National Lawyers Guild, particularly the update of the phrase "sexual preference" which should read "sexual orientation."
We found this Directive to be overly repetitive and mostly uninformative for public consumption. The most basic problem is that the concept of making sure training matches policy is not in the "Policy" section and doesn't even appear until Procedure section 10.2, and at that it only addresses that Training can only cover policies approved by the Chief. There needs to be a more serious emphasis on the training and policy matching one another.
--We're encouraged that Training wants to take input from the community (Section 2.1f, language lifted directly from the DOJ Agreement), but we hope that is not limited to the Training Advisory Council (TAC, Section 3).
--It's not clear why the date of creation of the TAC is needed in a Directive (section 3.1); also, the TAC recently voted to meet every two months, so perhaps section 3.2 should read TAC will meet "at least" quarterly.
We also support the comment from the National Lawyers Guild that "all officers should be required to attend regular training on cultural competency, community policing, and nonviolent communication," but would add "de-escalation and institutional racism." We also have stated repeatedly that officers should undergo a "homeless immersion" and live on the street for 24 or more hours to get more empathy. PCW's policy is that we will not have our members go on ridealongs with police until such an immersion is given to all Portland Police.
630.05 VEHICLE PURSUITS
--In the Definitions, it's alarming that "ramming" includes contacting the vehicle to incapacitate the suspect, which is a causal invitation for officers to cause injury or death. Only later on is it noted that ramming is considered Deadly Force (sections 4.4 and 5.1.5).
--Similarly, the tactics of barricading (blocking off the street), the "Pursuit Intervention Technique" (spinning a car by hitting its bumper) at over 45 MPH, and (obviously) shooting at cars are all considered Deadly Force (sections 220.127.116.11, 5.1.4 and 5.1.6).
--It's curious, then, that there is yet another body that meets to review police chases called the "Pursuit Review Board" (section 13). Why would these incidents not be turned over to the Police Review Board to determine in/out of policy, whether or not they were considered Deadly Force? Are there really so many pursuits in Portland that we need another review body? Especially because there also seems to be a "Collision Review Board" as well (section 15).
--It's helpful that the idea of multiple jurisdictions involved in chases is addressed (in sections 16-18), however, it's not completely clear that a chain of command is easily established as a pursuit moves from jurisdiction to jurisdiction. We've noted many times the question of who authorizes the use of deadly force when multiple jurisdictions are involved; the same question applies here. Since the supervisor from any agency can call off the chase (section 18.5.3), how do the various agencies coordinate such decisions?
We also support the comments from the National Lawyers Guild on this Directive.
630.10 DRIVING RESPONSE
This Directive seems to be aimed at establishing special rights for officers to violate all sorts of driving regulations, except for the seatbelt law (Section 1.2). While there are definitions of what level of emergency must be present (code 1, 2, or 3 calls or a code 0 officer life in danger) for certain levels of lights, sirens and speed, we've observed officers turning on overhead lights, making unlawful turns or going through lights, then turning them back off again. (Including a direct observation while we were Copwatching on Thursday August 27 of a u-turn to warn two people not to sleep on the sidewalk). This makes one wonder whether officers using these special rights are always following this Directive, or if they simply don't want to have to wait in traffic like the rest of us.
It's also of interest that officers are prohibited from going to Code 0 calls if they are not needed, as most officer involved shootings seem to attract the entire Bureau to the crime scene.
640.40 INVESTIGATIONS ON PUBLIC SCHOOL PROPERTY
--Our largest concern in this Directive is the lack of focus on rights. Section 3.1 talks about interviewing the student with the Principal present, and informing the Principal or guardian of the student before a custodial arrest is made. However, there is no discussion of informing the student, whether adult or juvenile, of his/her right to refuse to answer questions. (Thus, we also support the comments made by the National Lawyers Guild on this topic.)
--In the definitions and the text, the use of the term "student occupied school" to describe a school that is in use, but not necessarily full of students, is confusing. "Functional school" or some other term might work better.
Thank you again for the opportunity to comment. The Citizen Review Committee revealed that the Bureau told them it would "never happen" to let the public know how many comments came in on the Directives. We would really appreciate it if the Bureau would do so, and also state whether comments are rejected for philosophical/legal reasons or if the Bureau rejects ideas based on the source.
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