ANALYSIS of Bureau's New Crowd Control Policy
To the Powers-That-Be, police advisory groups and the media:
ANALYSIS: Crowd Control Directive still gives broad authority for use of violence
We sent this analysis to our constituents a short time ago. As the Bureau discourages comments on Directives when there is not an open review cycle, we copy you in hopes you will reconsider the recently issued Crowd Control Directive.
Portland Copwatch sent in extensive comments on this Directive. This analysis mostly focuses on whether and where the Bureau adopted, ignored, or made some effort to address PCW's concerns. The general findings: The PPB has legitimized their practice of targeting specific individuals using a loudspeaker system, made a few improvements by fixing language and other technical issues, made some effort toward progressive change but fallen short in quite a few areas (such as caveats about targeting legal observers and media), and made no change at all in many others, including the ongoing problem of using outside agencies to police Portland protests. Furthermore, there are specific weapons (which the Bureau insists on calling "distraction devices" even though they are in the form of shotgun shells, grenades, and other explosives) and tactics (such as confiscating what the Bureau thinks are "weapons") that are not addressed in the policy. [...]
From Portland Copwatch < firstname.lastname@example.org>
To Interim Chief Chris Uehara <Chris.Uehara@portlandoregon. Captain Jeff Bell < Jeff.Bell@portlandoregon.gov> Lt. Craig Morgan < email@example.com> Dennis Rosenbaum < firstname.lastname@example.org> Community Oversight Advisory Board-Mandi Hood < email@example.com> Citizen Review Committee < firstname.lastname@example.org> PPB Directives < PPBDirectives@PortlandOregon.gov> Mary Hull Caballero < email@example.com>MayorTed Wheeler < MayorWheeler@portlandoregon.gov>Nicole Grant < Nicole.Grant@portlandoregon.gov>
Cc Jonas Geissler < Jonas.Geissler@usdoj.gov> Brian Buehler < firstname.lastname@example.org> Seth Wayne < email@example.com>, Jaclyn Menditch < firstname.lastname@example.org> News Media < email@example.com>
ANALYSIS: Crowd Control Directive still gives broad authority for use of violence
At the end of August, the Portland Police Bureau (PPB)'s Directive 635.10 on Crowd Management/Crowd Control went into effect.
Portland Copwatch sent in extensive comments on this Directive. This analysis mostly focuses on whether and where the Bureau adopted, ignored, or made some effort to address PCW's concerns. The general findings: The PPB has legitimized their practice of targeting specific individuals using a loudspeaker system, made a few improvements by fixing language and other technical issues, made some effort toward progressive change but fallen short in quite a few areas (such as caveats about targeting legal observers and media), and made no change at all in many others, including the ongoing problem of using outside agencies to police Portland protests. Furthermore, there are specific weapons (which the Bureau insists on calling "distraction devices" even though they are in the form of shotgun shells, grenades, and other explosives) and tactics (such as confiscating what the Bureau thinks are "weapons") that are not addressed in the policy.
Due to the immensity of the task, we are not analyzing this for input which was made by American Civil Liberties Union of Oregon (ACLU)/Portland National Lawyers Guild (NLG)/Oregon Lawyers for Good Government (OLGG) and others prior to the new changes being enacted.
We've grouped our analysis in these sections:
1) Badly Made New Addition
3) Some Effort
4) Not Addressed
5) Minor Fixes
6) Other Changes
7) Moot Point; and
8) Unlisted Tactic.
1) Badly Made New Addition:
Section 8.2.2 explicitly calls for officers using the loudspeaker system to "communicate targeted information to specific individuals to provide direction." We noted this is an intimidating tactic coming from the military grade Long Range Acoustic Device (LRAD) now in use, and asked the Bureau to stop it. Instead, they formalized the ability. This deserves much more discussion as police will call out the names of people they know, but say "you in the red sweatshirt" to others, creating shall we say unequal protection of the law (see: Fourteenth Amendment).
There is now a citation of ORS 131.675 which explains when dispersal of crowds is lawful, per our suggestion ("Refer" Section and Section 9.1).
The Bureau re-instated a definition for "passive resistance" that had been removed.
The Bureau removed the Policy language that talked about "containing and controlling" a crowd (draft Policy 6).
Rather than only saying officers should "strive to" be positive and non-confrontational "when feasible," the Directive now says to act that way "when appropriate" (Section 3.2)... though arguably, it's always appropriate.
We asked that the Bureau consider how police presence may escalate a situation. New section 126.96.36.199 says the Incident Commander should consider how much equipment officers should wear based on "the potential impact or perceived effect that appearing in protective gear may have on the crowd."
The two places where the PPB used the term "civil disobedience" when they meant "civil disturbance" (Sections 6.2 and 7.1.2) have been fixed. In 7.1.2 they removed the word "necessary" in describing the decision to use weapons against a crowd.
Section 9 on Crowd Dispersal was expanded to require the Incident Commander to "consider whether dispersal unduly endangers the public" (Section 9.1.1) and to give time for the crowd to comply with orders (Section 9.1.2), which vastly improves the earlier version allowing them to just disperse the crowd.
3) Some Effort:
PCW recommended a policy against targeting those observing police at demonstrations. Section 12.4 prohibits arresting "media or legal observers... solely for their role in observing, capturing, and/or reporting on demonstrations or events." They put in two caveats, though: One is that those observing must do so "in a safe manner and in compliance with police orders," the other says that if observers do not comply with "all police orders" they may be arrested. We're not sure this is contemplated by the First Amendment.
PCW asked that video not be taken for "situational awareness" and turned over to the City Attorney because ORS 181A.250 prohibits collecting OR maintaining information on people's social, political or religious affiliations without reasonable suspicion of criminal activity. Section 4.3 now allows live video feeds which are not permitted to be recorded without such suspicion being authorized by the Incident Commander. The policy explicitly says the authorization cannot be based on monitoring the associations/views of the people. However, the fact that a live video is being transmitted still seems to fall under the idea of "collecting information" whether or not it is retained.
PCW asked for clarity whether pepper spray is among items the Bureau considers to be "riot control agents." Some clarity comes now in Section 10.2 which says officers can't "deploy specialty impact munitions or aerosol restraints indiscriminately into a crowd," but otherwise pepper spray isn't addressed.*
We noted the PPB said crowd control should be used if an event becomes "unlawful or violent" without any specific definitions. They now say control tactics can be used if there is a "civil disturbance" (Policy Section 6). This is defined as "an unlawful assembly that constitutes a clear and present danger of riot, disorder, interference with traffic upon the public streets or when another immediate threat to public safety, peace or order appears." It's not clear exactly how "interference with traffic upon the public streets" constitutes a threat to public safety. It's also not useful to characterize an assembly of persons (guaranteed as a right in the First Amendment) as "unlawful." In other words, they are trying to say what makes the assembly "unlawful" by giving examples, but using the word up front implies the assembly itself is an unlawful act. While the definition of "civil disturbance" is slightly improved (because they dropped the terms "threat of collective violence, destruction of property or other criminal acts"), the new language is also vague and over-broad.
Where we asked the Bureau to change its delineation of event types from "Planned demonstrations" vs. "Spontaneous demonstrations" to "Coordinated with the Bureau" vs. "Not coordinated with the Bureau," they merely added two clarifying points to the "Spontaneous demonstrations" Section (4.2). They now define such demonstrations as "events that the Bureau learns of with less than 24 hours notice" (4.2.1) and note that such events "can be lawful and be facilitated with appropriate police response" (4.2.2). We asked that they reinsert the words "or no police response/assistance." We also asked that they specifically state "The Bureau will not take adverse action against a group because it has refused to establish lines of communication with the Bureau." They did not.
We were concerned the list of crimes that are not protected by the First Amendment was too broad (listing trespassing, destruction of property and saying "but not limited to"). The new list is even more chilling, bringing in the items from the "Civil disturbance" definition: riot, disorder, interference with traffic, etc. For an organization that allows officers to point weapons at people when it's not likely they would be justified in using those weapons, drive recklessly by ignoring traffic signals and speed limits, engage with their electronic devices while driving, harass people of color by patting them down during "mere conversations" and countless other affronts to social norms, it is not reasonable to use a blanket term like "disorder" without being more specific.
The Bureau took out the words "contain" and "control" as goals of police tactics (as noted above), highlighting the idea of de-escalation instead (Policy Section 6). However, the Directive adds the terms "protect public safety and restore peace and order" at the beginning and end of that Section, bringing the same problem of vagueness which could lead to over-policing based on a subjective interpretation. Moreover, the entire Directive's tone is still set by Procedure Section 1 talking about how Directive 1010.00 on Use of Force governs officer use of force. Directive 1010.00 itself begins with a section on de-escalation. That should be noted before the words "use of force" are used in this Directive.
The PPB removed the word "empower" in describing their encouragement for people to come up with their own security plans (Policy Section 5), but still says they will "encourage and support participants' efforts to monitor themselves in an attempt to limit member involvement." We suggested they be "supportive of participants' organizing to set guidelines on behavior" to not seem so paternalistic. That did not happen.
While the Bureau added that in addition to contacting organizers, they will "engage in dialogue" (Section 188.8.131.52), that doesn't address PCW's concern that a phone call from police can be off-putting, and their laying out "expectations" is paternalistic. We suggested instead that police and the City post frequently asked questions about guidelines for demonstrations. Apparently this was not a well-received idea. Instead, we have had the Mayor going on TV giving condescending speeches about his expectations. The point is that people should be able to examine such guidelines and create a plan based on what they know the City has said.
In addition to "organizers" they added "Person(s)-in-charge" as potential contacts for police, per our recommendation (Section 184.108.40.206). However, they did not change the term "person-in-charge" to "liaison" which we pointed out allows organizers to assign someone not necessarily in charge to exchange information with police.
The Incident Commander now is asked to determine the appropriate level of response "if any," indicating they now will call in the Rapid Response Team based on what is "warranted" rather than if a civil disturbance is "anticipated" (old Section 220.127.116.11, new 4.1.2).
The Section guiding behavior (6.6) clarifies that individual officers can only act outside a Sergeant's direction when protecting the officer or others "from physical harm," new words that are more clear than "in exigent circumstances." However, we still think the level of harm (something more serious than a paper cut) should be indicated.
Section 9.2.1 says that weapons cannot be used unless there is an escape route available to the crowd. Such an escape route, however, is not required when officers order a dispersal (Section 9.1), and there is no requirement that those giving orders to the crowd be aware of such an escape route (Section 8).
(continued from previous email)
4) Not Addressed:
PCW asked that the Bureau incorporate and cross-reference parts of the separate Directive 635.00 on strikes and job actions. https://www.portlandoregon.gov/police/article/526160 There is no mention made of this other Directive.
The Bureau did not act to prohibit the use of violent arrests as we asked, leaving in place a requirement to "consider" the "method of the arrest" (Section 12.2). Moreover, they did not make changes such as adding the level of criminal behavior and likelihood of escalating tensions to the existing consideration of "timing, location and method of arrest."
The guidelines on working with other agencies (Section 7) does not ensure they will be trained or identifiable in the same way as PPB officers. Section 7.1.3 requires officers from other jurisdictions to follow PPB orders... but they are allowed to rely on their own policies and procedures, rather than the PPB's. This means we will continue to have inconsistent policing until outside officers are required to train in and follow PPB's practices. No effort has been made at the state level by the City to require all officers to wear identification on their outermost garment. Nothing specific has been added to Section 7.1.1 about the nature of the PPB commander briefing officers from other agencies.
There was no response to our concern that multiple uses of force against crowds are not being reflected in Force reports. We have since discovered that crowd force incidents are being consolidated in a separate section at the end of annual Use of Force data reports, but not integrated with the other data. (Officer involved shootings are also not included with the general totals.) We have asked before and ask again: why is force against a protestor not counted as force?
While the Bureau talks about "facilitating" some events, they still use the words "Crowd Control" and "Crowd Management" rather than "Crowd Facilitation" as we suggested.
PCW asked that the guidelines given to officers in 2012 explicitly saying what kinds of weapons and tactics were to be used in what situation be integrated into the Directive. That did not happen.
There was no addition of language in the Policy section directing police to physically protect demonstrators from external threats or aiding events by directing traffic.
The stated goal to minimize "potential disorderly or violent outbursts" has been changed to be about minimizing "violence, injury or damage to property." While minimizing violence and injury is a good goal, PCW has repeatedly asked the Bureau to be clear what is meant by "damage to property." Some believe that writing slogans on a sidewalk in chalk is a form of "property damage," which is silly (Policy Section 5).
The new version does not remove the suggestion that officers' presence is partly to "encourage crowd self-monitoring" which we compared to having your boss stand over your work area all day while armed (also Policy Section 5).
They also did not replace the phrase "when police response is necessary" to "when police choose to respond" as we suggested (3.1.1).
The new Directive does not address specific ways other than social media to get information to a crowd, even though we pointed out not everyone who goes to demonstrations carries a smart phone (Section 18.104.22.168). While it continues to refer to "other conventional outlets" it is not clear what that means.
A confusing chain of command involving the Incident Commander, the Rapid Response Team and the on-duty precinct supervisor has not been fixed in Section 4.2.
The Section (6.1, formerly 5.1) on the Incident Commander says they should "consider what tactics are objectively reasonable under the totality of the circumstances," which is better than the older version that didn't use the word "objectively" and asked whether the tactics were "warranted." However, PCW asked the PPB to re-insert criteria from an older version including whether police action will improve the outcome, which was not put back in. "Objectively reasonable" also replaced the term "necessary" in Section 6.2 describing the Incident Commander's decision making around use of weapons.
Section 6.3 still refers to the "Operations Section Chief" instead of the "Assistant Chief of Operations" which is the proper title we suggested.
Section 8 on Announcements does not require that officer ensure that conflicting commands (such as get off the street onto the sidewalk/get off the sidewalk into the street) are not given. The closest the Directive comes is saying the Incident Commander has to ensure announcements are "consistent" (Section 6.1.5).
The policy does not clarify what is meant by "ensure the audio confirmation received by identified staff on other end" when talking about documenting warnings (Section 8.3.3).
There is nothing in the Directive, including in Section 9 on "Crowd Dispersal," about the Bureau's ongoing tactic of "kettling" (boxing in) protestors, despite our request. Perhaps Section 11.1 on detaining "individuals engaged in civil disturbance" is supposed to cover that tactic.
The use of deadly force has not been prohibited in Section 10 despite suggestions from PCW, the ACLU, NLG and OLGG. Nor have they prohibited use of "batons, pepper spray, impact munitions, flash-bangs, tear gas, and bicycles" as we asked.
The Bureau modified Section 11.1 on detentions to say officers may detain "individuals engaged in civil disturbance" rather than "a crowd engaged in unlawful assembly," which is an improvement. However, they did not address our concern that the City says officers "may" do so, since there's no requirement that the people had to have committed any particular criminal act (other than failing to disperse).
The Section (13.4) requiring officers who use force to file a report still does not set a deadline of the end of their shift (as was in a previous version).
There is still nothing prohibiting officers from targeting individuals based on their clothing or perceived political affiliations as both we and the Citizen Review Committee suggested. The closest guideline is the one stating officers have to articulate probable cause for an arrest (Section 12.3).
Similarly, there is nothing requiring the prompt release of property confiscated at protests, also a CRC recommendation that PCW supported.
Even though we frequently see fixed-wing aircraft over protests which are likely PPB's Air Unit, there is still no discussion of their role at demonstrations in this Directive as we suggested.
5) Minor Fixes:
ORS 181.575 was re-numbered, as we suggested, as ORS 181A.250 to reflect renumbering of the state law against police spying (Section 4.3).
The citation of the "Event General Planning Reference Guide" in old Section 4.1.2 was cut. (Perhaps because PCW asked if that was a public document?)
There is no longer a heading titled "Unlawful Assembly" (old Section 7.4), the policies from there have been moved under Section 8.3 on Civil Disturbance.
6) Other Changes:
Policy Section 2 no longer describes restrictions on time, place and manner of expression as "lawful" but now requires those restrictions be "reasonable." Policy Section 3 changed the term describing when police can impede free speech from "compelling government interest" to "narrowly tailored to serve a significant government interest." These are positive changes.
The call for officers to maintain a "non-confrontational" presence has been changed to a "diplomatic" presence (Policy Section 5). Perhaps both words would be better. It also changed the goal of such presence to dissuade "disorderly behavior" to dissuade "civil disturbance," which could be an improvement if that term were better defined (see above).
7) Moot Point:
PCW asked that the PPB prohibit the use of the Mounted Patrol Unit at demonstrations; they instead left in the prohibition against using horses on "passively resisting demonstrators who are sitting or lying down" (Section 10.3). This is a moot point since the MPU was disbanded on July 1--something we called for in our previous comments. However, since visiting agencies supposedly have to follow PPB policies, it would be best to broaden the prohibition to any agency and any use of horses in crowds.
8) Unlisted Tactic/Weapons:
The Bureau has been actively rounding up items they claim are potential weapons, even those that are not listed under state law as dangerous, despite the fact that an old part of the Directive allowing them to "pre-emptively confiscate potential weapons" was cut from a previous iteration.
Also, even though they have become ubiquitous in crowd control, the specific guidelines for use of so-called "aerial distraction devices" (aka flash-bangs) and "rubber ball distraction devices" (aka less-lethal grenades) are not addressed directly in any Bureau policy.
For more information contact Portland Copwatch at 503-236-3065.
*-We note here that impact weapons and pepper spray appeared to be used indiscriminately on September 10, after this Directive went into effect.
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