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ANALYSIS: Semi-annual Police Review Board Report: Cops who beat teenager not disciplined

Mr. Paille and Chief Marshman:
Thank you for posting the February 2017 Police Review Board (PRB) Report on February 16 (at < http://www.portlandoregon.gov/police/article/628689>) after our inquiry about its whereabouts on Feb. 14. As we've noted many times in the past, we have deep concerns about this system which takes cases of great concern and only allows for discussion behind closed doors, with no media, public, or even the aggrieved parties present. This Report covers just 11 cases heard over six months-- four Bureau-initiated ("B"), five community related ("C"), one we marked as Bureau/Community (B/C) because it involved a community member even though it was handled as a "B" case, and one shooting. Despite the fact that the PRB reviewed the case of Thai Gurule, a 16 year old African American young man tasered, kicked and punched in what many think was a case of Racial Profiling in 2014, there was no review by the Board of the officers' Use of Force (C2).
ANALYSIS: Semi-annual Police Review Board Report shows cops who beat teenager not disciplined

From: Portland Copwatch

To: Christopher Paille, Police Review Board Coordinator
Chief Michael Marshman, Portland Police Bureau

cc: IPR Director Constantin Severe
Auditor Mary Hull Caballero
Mayor/Police Commissioner Ted Wheeler
Citizen Review Committee
US Department of Justice and Compliance Officer/Community Liaison
Members of the media
Portland Copwatch

February 24, 2017

Mr. Paille and Chief Marshman:

Thank you for posting the February 2017 Police Review Board (PRB) Report on February 16 (at < http://www.portlandoregon.gov/police/article/628689>) after our inquiry about its whereabouts on Feb. 14. As we've noted many times in the past, we have deep concerns about this system which takes cases of great concern and only allows for discussion behind closed doors, with no media, public, or even the aggrieved parties present. This Report covers just 11 cases heard over six months-- four Bureau-initiated ("B"), five community related ("C"), one we marked as Bureau/Community (B/C) because it involved a community member even though it was handled as a "B" case, and one shooting. Despite the fact that the PRB reviewed the case of Thai Gurule, a 16 year old African American young man tasered, kicked and punched in what many think was a case of Racial Profiling in 2014, there was no review by the Board of the officers' Use of Force (C2). The only case in which the PRB looked at Force was the no-hit shooting involving Timothy Bucher in May 2016 (B/C2)-- and, as usual, they found no wrongdoing by police. It is somewhat of a relief that four officers involved in outrageous conduct were set to be fired, though three of them resigned or retired before the City had the chance (a fourth resigned facing 40 hours' time off). However, this brings to light the question of the screening process being used to bring in new officers. Ridding the agency of four officers who had poor judgment is especially concerning given all the hype around short staffing at the Bureau. The narratives and consistency of the Reports have improved somewhat, though there are still too many redactions on items such as gender, precinct and certain other information. For example, it would help to know the nature of the confidential information revealed by the officer who was given 40 hours suspension without pay (SWOP). It's interesting, too, that this set of cases involves four findings that were moved from "Not Sustained" (insufficient evidence) to "Sustained" by the Chief making the change-- in one case, after the Citizen Review Committee (CRC) heard an appeal.

We strongly recommend that the Chief make it a policy to use his discretion under the ordinance and send to the PRB all Use of Force cases involving juveniles (such as Mr. Gurule) and people in mental health crisis (such as Matt Klug, whose case was just finally resolved at City Council after two years).

We continue to question why the Bureau refuses to print the names of officers which have already been in the media, including the officers who fired at Bucher (Sgt. James Darby and Officer Chad Gradwahl) and the ones who beat Gurule (Officers Betsy Hornstein and David Hughes, Sgt. Jason Lile). Officer Scott Groshong was disciplined for putting his hand on civilian Bob West's camcorder after CRC voted to "Sustain" his Conduct complaint. The Oregonian has noted (< link to www.oregonlive.com) that the officer who faced termination for inappropriate physical contact with a Domestic Violence survivor was Jeromie Palaoro (C3). Only seven of the officers under scrutiny were disciplined, and it's not clear who the other three were who faced termination: One came back to a friend's house out-of-control after an off-duty poker game (C1), one blew a .08 on a Breathalyzer test while on duty (B1), and one falsified timecards, adding 1-2 hours a day for two months (B3).The others were the aforementioned 40 hours SWOP and two officers who received Command Counseling (details below in cases B/C1 and C4).

There is a new issue that came up in this Report which we haven't seen before-- in cases where someone "controverts" (proposes a different finding than) the officer's supervisor, only the controverted allegations are considered. This new practice prevents the Board from examining the allegations in "the totality of the circumstances" and should be stopped.

In all, the Report covers a total of 34 allegations, of which 22 ultimately were "Sustained" (only 18 because of the PRB's recommendations), 9 were "Exonerated/In Policy," and 3 were "Not Sustained." 12 of the 22 "Sustained" findings were in "B" cases. One was the finding the CRC overturned (B/C1), and nine were in "C" cases (one of which involved Chief O'Dea unilaterally over-riding a 5-0 vote of the Board in case C1). As we've noted before, the appearance of the sustain rate being high (65%) is mostly because any case with "Sustained" findings that could lead to discipline gets sent to the PRB automatically (as happened in five cases this time-- C1, B1, C3, B3, and B4). Others came because the Independent Police Review Division (IPR) Director (C2), Professional Standards Division (PSD) Captain (C5), both (B2), or an Assistant Chief (C4) controverted the original finding. We appreciate that, with one exception*, the Report indicates how each case as sent to the PRB.

The deadly force incident, as we've noted before, automatically triggers a Police Review Board hearing, but continues to be labeled a "B" case even though officer involved shootings tend to involve civilians. We believe this is done to prevent community members from filing appeals when the Bureau finds no wrongdoing in the shootings.**

UNSUITED TO SERVE AND PROTECT: FOUR OFFICERS TERMINATED

As noted above, four officers faced termination based on PRB findings. These are details of and comments about those cases.

(C1) An officer was off-duty at a friend's house playing poker, became upset, was driven home, but then came back in a rage, including making a threat to shoot someone in the head with a firearm. The PRB didn't find the officer out of policy for the use of the weapon because there wasn't enough evidence to prove he/she broke the law. Fortunately Chief O'Dea noted that the Board only needs a preponderance of evidence, not "beyond a reasonable doubt" as in court, and moved their "Not Sustained" finding to "Sustained." The officer was also found to be in violation for breaking a window and flower pot, and kicking in the door (Directive 315.00 Laws, Rules and Orders), as well as driving back to the home while intoxicated and forcing his way in (310.00 Professional Conduct). The Board recommended Termination; Chief Marshman agreed with O'Dea and the officer was fired.

(B1) Another officer who drove while drunk did so while on duty, admitting to drinking alcohol before the start of a shift after initially denying it (violating both the Directives on Alcohol Use [316.00] and Truthfulness [310.50]). They were also found to have violated the Conduct policy (310.00) as unfit to serve in the rank they have-- indicating this was a Sergeant or above. This officer resigned before being terminated by Chief O'Dea.

(B3) This was the case in which an officer repeatedly arrived late and left early to their shift, but signed in for full days' work in April and May 2015. The Bureau used camera footage from the Precinct lobby as well as records of the officer's entry key being used to prove that the time cards were falsified. What sealed this officer's fate was that the PRB applied Directive 310.50-Truthfulness to the officer's dishonesty in reporting which led to a termination recommendation. The officer retired before being fired. The Report also reveals this officer had a prior disciplinary history with unpaid leave in 2013 and 2014. While we support disciplining officers, we wonder whether follow-up is done to ensure officers do not act out after discipline has been imposed.

(C3) This was the widely reported case in which officer Jeromie Palaoro was called to a Domestic Violence incident, called the survivor, then came back to her hotel room and placed his gun in plain view while having her engage in a massage and "other physical contact." To its credit, the Bureau and PRB found Palaoro's conduct "egregious behavior towards a potential Domestic Violence victim" and found five allegations "Sustained," recommending termination. The Board also recognized that Palaoro's use of his gun "created a power differential" in which the woman felt she was being forced to engage in contact with him. The PRB called Palaoro's actions a "willful disregard of the values" of the PPB. Palaoro pleaded guilty in court and resigned before being fired. It's worth noting here that Palaoro's misconduct began with the initial contact-- he failed to file a report on the DV incident, another violation of policy.

USE OF FORCE KEPT FROM REVIEW BOARD DISCUSSION: THAI GURULE CASE

(C2) On September 14, 2014, Thai Gurule was walking with friends in the St. John's area. A disturbance call indicating that black men and women were involved led police to the area, where they tried stopping Gurule, his brother, and their other African American friends. After Gurule was charged with assaulting a police officer and resisting arrest, the Judge in the case found him not guilty, but further called out the officers for inflicting harm on the teen and stated that Hornstein's testimony, which asserted Gurule had put her in a choke hold, was "not credible." For this reason alone it's astounding that Chief O'Dea would not have asked the Police Review Board to review all seven allegations in the case-- in fact, the only reason the Board heard it (in April 2016) was that IPR Director Constantin Severe-- whose agency conducted the investigation-- controverted the finding whether the stop itself was lawful. It is disappointing that the Board voted 4-1 (we can guess who the one vote was) against the IPR's proposed "Sustained" finding. Portland Copwatch continues to be concerned about legal analyses which say Use of Force can be justifiable even if the initial stop was not valid. It is mildly refreshing that the finding on the stop was "Not Sustained with a Debrief" meaning that officer #1 (it's not clear if this is Hornstein or Hughes) will get talked to about "the tactics of de-escalation." That said, we are hoping the Bureau will revisit the case based on the video evidence and the broader context that the stop might have been Racial Profiling. (Note: it is not clear whether Gurule's family, when they accepted a $90,000 settlement from the City last November, made any agreement not to appeal the findings regarding officer conduct. Regardless, a broader examination of the case, including an appeal to CRC, would do a lot to build community trust.)

It's particularly disturbing that this case wasn't turned over to a full 7-member board (which would have included one civilian from the PRB pool, one CRC member and the IPR Director) since Hornstein, a trained Crisis Intervention Team officer, kicked and hit Gurule, and Sgt. Lile tripped him, pulled his hair, and used a Taser on him.

We note here that the report on this incident includes far more detail than most other cases reviewed by the PRB, with the narrative told entirely in a way that justifies the police action. This apparent bias is just a reminder that the victims should be allowed to testify to the PRB to give a balanced view. Overall, the fact that this high profile case took over 18 months to get to the Review Board and its results weren't revealed until 29 months after it took place shows that the Bureau's commitment to transparency leaves a lot to be desired.

IF CIVILIANS ARE INVOLVED, WHY ARE CASES LABELED "BUREAU ONLY"?

We've raised the concern repeatedly that the Bureau labels some incidents as "B" cases in order to take them out of the public eye. If the Bureau were to have properly categorized Mr. West's complaint and the shooting as "C" cases (which are listed as complaint types I and III in the IPR ordinance at 3.21.120[B]), then 7 of the 11 cases would properly be seen as ones involving civilians. Instead, the Report lists 6 "B" and 5 "C" cases.

(B/C2) When police were called out to interact with Mr. Bucher on May 24, 2016, it is alleged that Bucher was firing his own weapon randomly out of his home. The PRB report says that officers #1 and #2 (Darby and Gradwahl) were authorized to use deadly force by officer #3, while #12 approved the use of chemical agents. The officers shot at the door jamb (not "jam [sic]"). We've previously noted that use of "cover fire" is controversial; this incident illustrates why: If the bullets aimed at an inanimate object strike, wound and/or kill a person, the police will have to explain why that shooting was justified. That said, the PRB echoed our comment from March 2013 that the revised Use of Force policy [1010.00] dropped a paragraph (numbered 8.1 in the old version) which gave parameters for the use of the tactic. Since "cover fire" was used both here and in the shootout with Ralph Turner in 2011, we would suggest that the Bureau put in a definition with serious restrictions so that officers don't engage in unrestrained "cover fire."

The PRB examined nine aspects of the shooting regarding 12 officers, assigning a finding of "In Policy"*** to the gunfire (allegations 1 & 2). It's troubling that a Board member described Bucher's reportedly random fire as "attempted homicide" to justify officer gunfire. Legal counsel should be present to clarify such terms when they are raised. An officer who set a K-9 dog to bite Bucher (allegation 3) was also found in policy since Bucher wasn't responding to commands to crawl toward police. A PRB member called this putting a dog in harm's way "superlative" police work. The officers who fired chemical agents were found in policy as they "avoided higher levels of force" (allegation 4, officers #4, 5, 8 and 9). Another officer used a Taser because Bucher was allegedly fighting with the K-9 dog-- it's not clear whether the dog was affected by the Taser use (allegation 5, officer #7). Officers #10, 11 and 12 were found in policy for their post-shooting actions securing the crime scene, though there is no mention of whether and who might have given orders to the officers not to communicate with one another about the incident, an important post-shooting protocol put in place after the Kendra James incident in 2003.

The only questions that were raised were with regard to officers #10, 11 and 12 because the first two took extra time to hand over control of the incident site to #12 (allegations 6 & 7). The Board recommended a debriefing and to discuss ways to transition better with all critical incident commanders. Again, this is useful since such breakdowns happened in the shooting of Aaron Campbell in 2010.

A few odd items about this case: Even though the PRB in deadly force cases has 7 members, only six voted on allegation 9, and somehow there were 10 votes in favor of the two policy recommendations. We hope the Review Board facilitators and coordinator can explain such discrepancies in the future.

(B/C1) The incident in which Officer Groshong saw Mr. West videoing outside Central Precinct, stopped, got out of his vehicle, put his hand up to the lens, said "oh, it's you" and drove off has been widely publicized. The fact that West's October 20, 2015 video shows the officer's actions played a large role in the investigation. Since the PRB report only addresses the Review Board hearing, we'll comment on the rest of the process momentarily. Even though the information came out elsewhere, it's not clear from the Report that this case was referred for investigation by then-Assistant Chief Mike Crebs, or that the IPR Director and PSD both controverted Captain Mark Kruger's finding of "Not Sustained." In fact, this is the only report in the batch which doesn't indicate how the case came to the Board. In any case, the board voted 4-1 (again, looks as if the IPR was all alone here) to uphold the "Not Sustained" finding. The majority claimed "anyone" would put their hand up to a camera-- ignoring that police should have special training and put thought into how they interact with community members. This is particularly important with regard to touching a person (or their belongings) since doing so can constitute a police action-- and if a civilian did it to an officer, it could be considered an assault.

The Report accurately if briefly reports that the Citizen Review Committee voted 5-2 to "challenge the finding of Not Sustained." After initially balking, Acting Chief Donna Henderson agreed to Sustain the complaint. What's missing is that Capt. Kruger, at least for the CRC hearing, said he had the video broken down frame by frame-- something which wasn't part of the case file presented to him by Professional Standards. The PSD Captain and IPR Director were clearly signalling that Kruger's role as a supervisor in this case did not meet community expectations. And yet, the Portland Mercury recently reported that Kruger filed a complaint against the IPR Director. Given Kruger's own personal history of hiding his shrine to Nazi soldiers and exposing a subordinate's name after he was cleared of harassing her-- and having those findings flushed from his record-- the Bureau should take a look at whether Kruger is fit to continue serving.

OTHER CIVILIAN CASES: ANOTHER DOMESTIC VIOLENCE SNAFU, SCHOOL INTERROGATION

The two other cases marked "C" ended up with Command Counseling for one officer and a Debriefing for another.

(C4) An officer who left the scene of a domestic disturbance call apparently didn't take into account the involved husband and wife's history of Domestic Violence, didn't use proper investigatory tactics (which we assume means, didn't separate the two parties, but it could be something else) and there was an assault after the officer left. The Board voted 4-1 to Sustain an improper Domestic Violence investigation allegation (825.00), and Chief Marshman agreed to impose Command Counseling.

(C5) A juvenile was interviewed by the officer in question after a fight at a school, and the tactics used by the officer upset both the mother and the administrator enough that they complained to IPR. IPR conducted an investigation and, presumably, the original finding from the Bureau on the Conduct allegation was "Not Sustained." The Professional Standards Captain controverted the finding, leading to the Board hearing. One member said the tactics were "within a tolerable range." We're not sure what that means but it sounds a lot like making excuses for bad behavior. Four of five members agreed with the "Not Sustained" finding but two asked to add a "Debriefing." The one dissenter noted that the criteria on the Conduct Directive (310.00) include whether the action brings discredit to the Bureau-- and since the school administrator was shocked by the behavior (after calling the cops to the school in the first place), it fit the definition. Chief Marshman went with the majority vote but also added the Debrief. The Board asked the Bureau to explain the situation to the administrator (which, again, sounds like making excuses instead of improving behavior), and to train officers how to interact with youth.

As in the Gurule case, the Board only heard the one controverted allegation rather than looking at all four allegations in the case in a holistic fashion.

BUREAU CASES: DEMEANING SUPERVISOR, INSUBORDINATE COP ON MEDICATION

The final two cases only involving Bureau members ended up with the Chief over-riding the Board's majority in one case and imposing Command Counseling, and 40 hours SWOP in the other.

(B2) In this case an officer complained that a supervisor didn't give appropriate information, ridiculed the officer as a single parent, took away responsibilities in retaliation for speaking out, and created a toxic atmosphere. Two findings were not reviewed by the PRB as they were "Not Sustained with a Debriefing," the other three were controverted by both PSD and IPR. Those had to do with unprofessional behavior (310.00), Courtesy (310.40) by the supervisor, and unsatisfactory performance (315.30) by that supervisor's superior-- creating the hostile environment. Three board members voted 3 for "Not Sustained" findings, and two voted for "Sustained" in the behavior and courtesy violations, even though the supervisor referred to another officer as a "baby," for example. The majority seemed to blame the victim-- who only mentioned what was going on in the context of a separate Internal Affairs investigation-- saying they should have come forward earlier. Chief O'Dea found both the allegations against the middle manager "Sustained" and imposed Command Counseling. For the upper manager, the votes were varied-- two for "Not Sustained," one for "Sustained" and one for "Unfounded"-- meaning that the facts did not support the allegation. The person who wanted to "Sustain" the finding said the unit in question was so small the supervisor should have been aware of what was going on. O'Dea agreed to a "Not Sustained with a Debriefing" finding. The Board made four recommendations regarding the work environment.

(B4) A female officer (identified by a pronoun that made it past the PPB censors) failed to tell her supervisor she was taking a prescription medication, didn't show up for work without calling in two days, and flaked out on a community event on another day (she didn't call the Bureau, though she did call the community organizer). She also left a voicemail telling her Captain, sarcastically, "great job yelling at [confidential information]." Thus revealing confidential information. Added together these seem very serious, the four unanimous Sustained findings-- for failing to notify about drug use (316.10), timekeeping for the work-days and community event (210.30), and the unprofessional behavior to her supervisor (310.00). Chief Marshman agreed to impose 40 hours suspension without pay-- but the officer retired before it was imposed. The Board recommended ongoing training for supervisors, specifying that officers have to report sick leave before their shift, and clarifying who has to put in writing when an officer uses prescription drugs.

STILL NEED MORE INFORMATION

As we've written in the past, the PRB's semi-annual Reports could benefit from consistently including:

--the date of the incident in question (though we do note dates were given in 6 of the 11 cases this time);

--more consistent reporting how the complaint was generated
(internally, by a community member, or from another City agency)
and how the case came to the board (which we appreciate was
done in 10 of 11 cases);

--the number of voting members and number of votes
(which was done in all cases but B1 where votes were
recorded as "unanimous"), and why some votes are larger
or smaller than the members present (recommendations in
case B2, which had 5 voting members, are shown to have
6 concurring votes);

--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,
especially in deadly force cases (though this time
was definitely an improvement over some previous cases).

As in the past few years, all of the dates the Review Boards were held were listed in the Report.

CONCLUSION

Once again we believe there should be far more transparency in this process, which has to do with life-and-death matters in an agency that is given extraordinary powers over the community. Allowing the complainants, the media, and/or the public to attend, even with some confidential information and limited public input, would help build the trust the Bureau keeps seeking to gain.

We're particularly concerned that the new trend of looking at isolated allegations related to the same incidents is defeating the purpose of letting the Board deliberate more thoroughly about findings made by just one person (the officer's supervisor).

This particular Report is the second in a row that doesn't include a cover sheet explaining the Report and the Ordinance guiding its contents. It also has gone back to the previous name for the PRB from before 2010 on the cover page, saying "Performance Review Board" instead of "Police."

We're writing this analysis on the same week that three members were affirmed for new terms on the PRB and continue to believe there should be a roster of civilian Police Review Board members attached to the Reports since they are supposed to be representing the community at these meetings. We continue to believe the civilian pool members should hold annual or semi-annual meetings with the public, and be asked to help the Citizen Review Committee hearing appeals when the CRC's workload becomes too great.

We note that this is the first time (so far as we can tell) that the Public Information Officer sent out a news release announcing the Reports were available. It would have been a kind courtesy for the Bureau to respond directly to our February 14 email as we are not on the FlashAlert list.

Thank you,
dan handelman
--Portland Copwatch

FOOTNOTES:

*-- The Report doesn't say so, but case B/C1 involving Officer Groshong was sent to the PRB because both the IPR Director and PSD controverted Capt. Mark Kruger's original finding of "Not Sustained."

**--Even when the Bureau finds wrongdoing, such as in the Aaron Campbell case, an arbitrator usually overturns the finding.

***-- We still do not understand why there are different findings in deadly force cases than in other misconduct inquiries. After all, it is possible to find insufficient evidence to prove or disprove policy violations, but the Board's only choices are "In Policy" and "Out of Policy." Reviewing these cases separately denies a person who is shot and lives, or a deceased suspect's survivors, the ability to appeal the findings.

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