COMMENTS ON USE OF FORCE AND WEAPONS-RELATED DIRECTIVES, NOVEMBER 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:
Below are our comments on the Directives posted for review in November < http://www.portlandoregon.gov/police/59757>. It is infuriating that despite repeated requests for either a "red-line" version or at the very least cover sheets explaining changes made that we once again had to spend countless hours going through each Directive line by line. In doing so, we found that
COMMENTS ON USE OF FORCE AND WEAPONS-RELATED DIRECTIVES, NOVEMBER 2015
Below are our comments on the Directives posted for review in November < http://www.portlandoregon.gov/police/59757>. It is infuriating that despite repeated requests for either a "red-line" version or at the very least cover sheets explaining changes made that we once again had to spend countless hours going through each Directive line by line. In doing so, we found that no changes at all are currently being proposed to Directives 1010.00-Use of Force, 1051.00-"Electronic Control Weapon Systems," 315.30-"Satisfactory Performance, " and 940.00 After Action Reports. Aren't there also members of the Bureau who have to review these documents, both in draft form and once they are adopted, that have the same complaint?
We point you once again to comments we made on 1010.00 and 1051.00 in October, 2012:
and what we said to Judge Simon in the Fairness Hearing about 315.30:
so as not to repeat ourselves unnecessarily here, though we do have comments on all four Directives this month.
We generally support the suggestions being made by the National Lawyers Guild on this month's Directives.
Broadly speaking, the separate Directives addressing individual weapons (Firearms, "Less-lethals," Tasers, Batons and Pepper Spray) spend a lot of time on administrative detail, and very little on guidance for or prohibitions on deploying the weapons, with the "Use" section often relegated to section number 4, 5 or later rather than being first.
We continue to urge the Bureau to:
(a) number all of the sections of the Directives, such as the Definitions, Policy and Procedure sections (our comments here refer to the Procedure section unless otherwise noted)
(b) give more time to the public to comment on Directives, particularly when they are as complex and important as the ones being presented this month.
In addition, we echo the call of the Community Oversight Advisory Board asking the Bureau to explain why it rejected (or ignored) recommendations made by the COAB, and extend that courtesy as well to other members of the public, if not one-on-one than at least generally. For example, a statement released with a revised Directive might say "The Bureau considered recommendations made by members of the public asking that we only shoot to wound, not to kill, but have decided that we want to keep our policy to shoot to 'stop the threat.'" While it may lead to anger and disappointment, it at least acknowledges that you have listened to the community's concerns.
DIRECTIVE 1010.00-USE OF FORCE
In our comments on this Directive in July, 2014, we asked the Bureau:
--to add back the words "physical or mechanical intervention" to the definition of Use of Force. These words were added back in December 2014 to apply only when such intervention is used against physical resistance during "control holds and un-resisted handcuffing." As a result, Captain Kelli Sheffer of the Traffic Division issued a finding of "unfounded," around a complaint in which an officer admitted to moving a protestor's hand (the civilian was holding a flashlight), claiming that there was no use of force it was a "natural defensive reaction." The Directive should be clear that any unsolicited touching of a civilian by a police officer is a use of force, just as any unwanted touching of an officer by a community member is considered assault on an officer.
--to stop saying that "duty may require" the use of force (Policy section 4), or "members may be required to used deadly force" (Section 3.1), but rather underscore that force is always a choice. Those words were not changed in the update. (We suggest something like: "When no alternatives appear to be effective, officers may choose to lawfully use a reasonable amount of force to accomplish a lawful objective.")
--to reinstate the sections on analysis of force confrontations to this Directive, rather than leaving them removed to Directive 315.30 (see below).
In addition, we would add that:
--The language in the Directive about using "only the force reasonably necessary" and to "develop... the skills... to regularly resolve confrontations without resorting to force or [using] the least amount of force" (Settlement Agreement paragraphs 66 a&b) must be reinstated.
--Section 2.2.2 about members precipitating the use of force by using actions not approved by the Bureau should be more specific about exceptions than saying officers can act outside of policy only with "substantial justification."
--We would still like to see a list of firm situations in which certain levels of force are not acceptable, laid out in a chart form which shows what the Bureau considers to be the least amount of force to the most serious use of force. This used to be called the "Force Continuum" but it need not be labelled that way to be an effective guide for officers to understand. By explicitly stating the maximum acceptable force in certain circumstances, the Bureau can enhance accountability when officers violate the directive.
--More emphasis should be put on de-escalation than the mentions in Policy section 9 (which talks about the Bureau providing training and management around de-escalation) and Section 2.1.2 (which talks about assessing the amount of force "required" rather than asking officers to de-escalate generally).
--Priorities of the various "Graham standard" elements should be emphasized, as noted in our 2012 comments that the "impact of the person's behavior on the public" should be one of the first things officers consider, even though it is presented in the second-to-last slot (184.108.40.206).
--The Carotid Hold should not be mentioned in the Definitions section as an example of Deadly Force without further explaining that the hold was barred from use in the 1980s.
Finally, we generally support the recommendations prepared for the Community Oversight Advisory Board by their Data Systems, Use of Force and Compliance Subcommittee.
DIRECTIVE 1051.00-"ELECTRONIC CONTROL WEAPON" SYSTEM
We repeat once again that electroshock weapons should not referred to as "control" weapons, and suggest that "Conductive Energy Weapon" is a more neutral and widely used term more generic than "Taser."
We also repeat our concern that the Bureau added an exception for using Tasers to threaten or coerce ("to manage conflict"-Section 2.3), and continue to object to the use of the term "Excited Delirium" (Section 4.1), which is not a medically recognized condition. We also still do not understand why Training and Professional Standards are only required to notify the Chief about changes to Taser training or procedures rather than the Chief being included in that discussion (Section 3.2).
The Directive adopted in 2014 added a paragraph about not using Tasers against people in mental health crisis (Section 2.2) but (a) implied pain compliance is a legitimate use on other people, and (b) gave exceptions "to avoid a higher level of force." This language, while directly lifted from the Settlement Agreement (Paragraph 68-a), is undefined without a "Levels of Force" chart.
Also, we previously asked the Bureau to:
--Reinstate into the Directive the prohibition on using a Taser against someone engaged in passive resistance;
--Make it mandatory for officers to report whether persons subjected to shocks fall under categories protected by the Directive (over 60, under 12, etc.).
--Add protection for persons with epilepsy.
--Listen to the Community and Police Relations Committee and Citizen Review Committee's recommendations, made years ago, to add "Laser Light Only" back onto Force Data Collection Reports, so the Bureau can track how often Tasers are used in confrontations similarly to "point weapon only" for firearms.
--Ensure that the warning given is supposed to be verbal (Section 1.6), and not done by pointing the laser light or "arcing" the Taser.
--Define the term "significant danger" when outlining the reason officers can fire stun guns at fleeing suspects, to ensure it meets the Ninth Circuit Court ruling requiring an "active threat" before Tasers can be used.
We refer you also to our March 2013 comments on Tasers for more concerns, .
DIRECTIVE 315.30 SATISFACTORY PERFORMANCE
As we wrote last July, "we continue to believe that this Directive, taken as a whole, will be used by officers (and their bargaining units) to defend any individual incident of excessive force, saying the officer only has to display less reliance on force throughout his or her career." We urge the Bureau to rewrite the Directive to explicitly say that if an officer uses too much force or makes poor decisions in one serious incident, it could lead to discipline, or better yet to put that provision into Directive 1010.00.
We also want to see the Bureau remove the language in Section 2.1 that says the Bureau "requires" officers to "apply effective force when necessary," so that officers will not face discipline if they choose not to use force. Section 2.2 says force should be applied "when appropriate," which gives more leeway for those officers not resorting to violence, though better language might be "when reasonable and lawful."
DIRECTIVE 940.00 AFTER ACTION REPORTS
We made comments on this Directive last August when it was in draft form. There were substantial changes made before the Directive was adopted in December. However, many of our concerns from the previous draft remain. We will note up front that the US Department of Justice (DOJ) is correct in pointing out there is no exception to After Action Reports being filed in incidents involving deadly force.
We had some optimism that the Directive (now Section 4.2) required a Supervisor to call the Professional Standards Division in case of a "serious use of force," but didn't realize that provision doesn't require PSD to come to the scene unless "further investigation is deemed necessary" (and it's not clear who does the "deeming"). We still believe, especially with the DOJ Agreement requiring investigations into all complaints about Use of Force, that civilian investigators from the "Independent" Police Review Division or stronger non-police agency should come to the scene of all Use of Force events. This is particularly important as the civilian subject may be questioned regarding some sort of criminal activity on his/her own part rather than the actions of the officer(s).
In the August 2014 comments we wondered why Supervisors would call the PSD "Inspector" and not the Captain; a requirement that remains intact in Section 5.2.
The use of a choke hold (carotid hold) is still listed as a reason to write an After Action Report, albeit moved from the Definitions section to a part requiring reporting to Professional Standards (Section 4.1 sub ).
We are glad that "Operation Orders" were removed from the Directive.
It is interesting to see that After Action Reports are now required for all "crowd events" regardless of whether police used force or not (Section 1.6).
Entire new-- and commendable-- sections were inserted in the December version based on the DOJ Agreement, especially around responsibilities of Supervisors to analyze the incident for: legal justification (220.127.116.11), whether de-escalation would have been used (18.104.22.168), and applying corrective action if an officer writes an incomplete/inaccurate report or fails to report force (22.214.171.124). It also adds more reasons to send cases to Professional Standards including if the subject is under 15 or pregnant (Section 4.1), which build on the old section requiring reporting if the person has or appears to have mental illness (Section 4.2).
DIRECTIVE 1020.00 FIREARMS ADMINISTRATION
This Directive has been substantially rewritten, and removes nearly all Definitions given in the previously posted version.
One of our chief concerns about how officers use guns is their ongoing violation of rule #1 of gun safety: Never point a weapon at anyone unless you're prepared to shoot them. Thus, Policy Section 4 is a bit disingenuous when it states that "safety is paramount and members will be held to the strictest of standards."
We also would hope that officers attending community meetings would not be required to carry firearms at all times, since the ability of a supervisor to waive the requirement is supposed to be used "rarely" (Section 5.1.1.).
Another item of concern is that after the Training Division distributes a "Not Qualified Report" (Section 4.4.3), there is no longer a specific statement that officers on that list "can neither work in an armed capacity, nor have contact with the public." Though this is implied by saying such officers should be assigned to administrative duty (126.96.36.199), the more specific language is more reassuring to community members.
There also is no longer a requirement for officers to qualify for shooting capability using their secondary (non-Bureau issued) firearm (former section 1.5.1). Furthermore, there are no details on how the Bureau keeps track of such secondary weapons-- do the officers report the serial numbers? Do they turn in an older weapon if they decide to carry a newer secondary sidearm? And, is there a requirement that the weapon be legally registered in the officer's name?
In the day and age of so many people being shot holding toy guns, it is odd that the requirement that all Glocks be black in color has been removed (former section 1.6.5).
One strange omission is to allow "non-lead bullets" to be used for health reasons-- specifically, they used to be allowed for pregnant officers (former Section 1.9), but given the environmental hazards of lead, one wonders why such ammunition isn't more widely used in training.
The Bureau also cut out a prohibition on officers lending out or selling Bureau-issued equipment (former Section 2.9.1). Considering all the detail in this 7-page long Directive, it seems this is a pretty important point to have left out.
As noted above, how weapons are supposed to actually be used is de-prioritized, in this case moved down to Section 8, which then only refers officers to Directive 1010.00. However, Section 9 has specific requirements about summoning medical aid-- and at that, directs such action "as soon as practicable," rather than "as soon as possible.
It is also very important to note that officers who discharge weapons have write a report by the end of their shift (Section 10.1), which again supports the DOJ's caution against treating deadly force differently than other kinds of police conduct.
Other changes are too many to mention, but one last standout is the removal of officers' ability to by their own gun upon retirement, at the same price it cost the Bureau to buy (former Section 2.10.3).
DIRECTIVE 1050.00 LESS LETHAL WEAPONS
We noticed quite a few changes in this Directive as well, starting with swapping out the word "shotgun" and inserting the word "launcher" to describe a "less-lethal" weapon. We hope this means the Bureau is considering making it more difficult to confuse "less lethal" guns and ammunition with standard shotguns, as happened when Officer Dane Reister permanently injured William Monroe. A number of sections point to lessons learned from that 2011 tragedy, some of which were in the previous iteration of the Directive: Policy Section 5 prohibits officers from carrying lethal rounds if they have a less-lethal weapon. Officers are required to inspect each round as they load the weapon, and are encouraged to have a second officer double-check (Section 6.1). Because the previous posted version has no date on it, it is difficult to determine when these measures were added, but Portland Copwatch strongly supports them. However, it is of great concern that the SERT and Rapid Response Teams are not bound to these restrictions (Section 6.1.3).
We also support the new requirement for officers to document giving a warning about using a "less lethal" weapon or explain why they did not, but wonder why the suggested warning is "stop or I'll shoot" without being clear the gun is not carrying lethal rounds (Section 7.2). That said, it is commendable that the Definitions still include the statement that munitions are designed to be less than lethal, "yet they are still capable of causing serious injury or death." We wonder, though, why pointing out that "less lethal" is not considered "non lethal" was removed.
It is also unfortunate that sections detailing what should go into a report, requiring a supervisor to check on a wounded civilian who is hospitalized, photographing injuries, and explaining why the weapon is used were all cut from the Directive, and should probably be re-inserted.
In general, much of this Directive is duplicative of the Firearms Directive and defeats what we thought was one intended purpose of the Directives Project, to make the overall contents more compact and readable.
DIRECTIVE 1030.00 BATON USE
It is curious that in rewriting this Directive, the Bureau has cut out the Policy section governing use of Batons. They also cut out a number of definitions. There is nothing in the Directive that cautions certain uses of the Baton (such as striking a person on the head) can be considered deadly force.
A major concern here is carried over from the old Directive, and allows officers to use several other objects (described in the Directive as "tools), including flashlights, as impact weapons; it is only slightly improved by changing the standard of such use from a "reasonable belief" of the officer to the use being "objectively reasonable" (Section 5.2).
It's not clear why the requirement for a supervisor to document injuries to suspects was removed, perhaps because Section 6.1 requires the officer who used the baton to contact medical help and document if the person refuses. Regardless, because of the seriousness of the use of force, and because a supervisor is supposed to be on scene investigating, the old requirement should probably stand.
DIRECTIVE 1040 AEROSOL RESTRAINTS
Again, this Directive was majorly reworked and had its Policy section yanked. The old policy said that officers not assigned to patrol duties would only be issued pepper spray on a discretionary basis; oddly, the new one says only officers assigned to respond to calls are required to carry the weapon (Section 4.1). Neither the old nor new Directive talks about the fact that pepper spray is potentially lethal, a fact underscored when Armor Holdings paid the family of Dickie Dow $10,000 after his death in 1998 at the hands of the PPB.
Having members of our group who've been in crowds that have been indiscriminately pepper sprayed, we are horrified to read Section 5.2 which allows Incident Commanders to authorize its use on people who are passively resisting. (It's not clear, since "Incident Commanders" are only assigned to specific actions such as crowd assignments, whether such broad use is advocated in any other situation.)
We also object to the Bureau cutting out the requirement to report the circumstances of pepper spray use and its effects (Section 7.1), and the restriction to only use the spray from four feet away or more (even though that restriction was "to reduce the potential for splash back" and had a loophole for protection of the officer or another person from physical injury).
Reference to Directive 1090.00 Special Weapons was also cut, which raises the question why those were not included with all the other weapons Directives under review this month, while Ballistic Shields, which are defensive and not offensive, were included.
DIRECTIVE 1035.00 BALLISTIC SHIELDS
This was another Directive that underwent a major rewrite, and though it does include a Policy section, the old Policy's discussions of the value of human life and the "safety of members, involved subjects and the community" as overriding concerns are missing.
The new Directive makes one significant improvement, which is in describing resources a "Shield Element" might have, it uses the term "members to cover threats" (Section 5.1.3) rather than "lethal cover," as suggested by the OIR Group (and our group) in the past. On the downside, the Directive's larger focus on the subject being a "threat" (Section 5.1.1) rather than, say, assessing possible danger despite the fact that the person may be mortally wounded (the most common reason officers would use the Shields) perpetuates the "fear the community and consider your own safety first" attitude that has led to so much pain, suffering and death of community members in the past.
It's not clear why the exception to using Shields to clear or search structures went from being only in rescue operations to the more murky "in exigent circumstances," a term that needs to be defined clearly (Section 5.4).
It's also not clear why requirements were cut for Supervisors to check reports and turn in damaged Shields, several considerations to use before deploying a Shield (the number of people, type of weapon, subject's condition, "less lethal" options), and, most importantly, the requirement for officers to communicate information about using the Shield with others.
We thank you once more for the opportunity to comment. By our count we have now made comments on 68 unique Directives, some of them more than one time, and we have hardly received so much as a "thank you" from the Bureau. We look forward to that and a more detailed response.
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