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Portland Copwatch: FOLLOW-UP: The City/PPB still don't understand the text scandal

Portland Copwatch wishes to express concern with the conclusions being
drawn from the follow up on the Lt. Niiya texting scandal. The
investigation has cleared Niiya of violating Bureau policy. The Mayor
and Chief are claiming that new training for officers to act as liaisons
in crowd situations led to the "success" of the August 17 proto-fascist
/ anti-fascist demonstrations.
Mayor Wheeler and Chief Outlaw (and members of City Council)

[...]

This view lacks the power analysis that PCW encouraged the City to take
when the scandal broke, that is, the aligned political goals of the far
right make them natural allies of the police, while leftists and
anti-fascists bear the brunt of brutality. On August 17, the police
escorted the right-wing crowd over an otherwise closed Hawthorne Bridge,
while those who received the brunt of police violence and arrests were
anti-fascists. Among those are a woman who allegedly spit toward
officers being taken down roughly to the ground.

The lesson the City and Police still have to learn is that the First
Amendment doesn't contemplate negative repercussions from the state for
those who refuse to communicate when they exercise their rights, nor
does it grant privileges to those who do talk with the authorities.

Please consider how your actions and analysis can be seen as a
furthering of the very concerns that were raised by the friendly
demeanor Lt. Niiya took toward Patriot Prayer.

Below are the comments we sent you when the scandal broke, which led
us to the following additional analysis.

One of our key concerns has to do with the collection and maintenance of
people's political affiliations with no reasonable suspicion of criminal
activity. The Bureau's collecting such information is a violation of
ORS 181A.250, the same statute that is cited in the City's policy
limiting interactions with the FBI's Joint Terrorism Task Force. While
the Bureau seems to have heeded our caution about releasing community
members' phone numbers and email addresses, we still have serious
concerns about people's names being listed in PPB documents. There are
actually several texts from Lt. Niiya aiding in identifying individuals
who may be affiliated with certain political movements, in apparent
violation of this law. In fact, one email exchange still includes a
community member's email address and lists of people that community
member asserts are with the Patriot Prayer or anti-fascist movements. It
was inappropriate to publish this information back in February, and
highly questionable that it would be maintained without redactions
throughout this investigation and released again publicly.

We look forward to an explanation of why violations of ORS 181A.250 were
not part of the investigation and why these documents continue to be
maintained. Moreover, the message seems to be that talking about people
and what their politics are appears to be commonplace and accepted in
the Bureau, perhaps even encouraged as "good policing" which raises a
lot of "red flags" to coin a phrase.

One final thought: The Chief's changing the "Not Sustained" findings to
"Unfounded" leads back to problems with the Bureau's definitions of the
findings. Lt. Niiya did in fact have a chummy relationship with
hard-right protestors, did in fact warn them about an outstanding
warrant (and the location of counterprotestors and protests the far
right may want to confront, which don't seem to have been part of the
investigation for some reason), and did in fact fail to maintain
objectivity (encouraging Gibson to protest Hillary Clinton and run for
office, for instance). The Bureau found that these actions were within
policy, which means they thing he should be "Exonerated" (the officer's
action was lawful and within policy). "Unfounded" means that the actions
did not occur at all-- in other words, Niiya would have to have not
texted, made remarks or released information for this to be the correct
finding. Given that one could interpret the facts in two different ways,
"Not Sustained" (the evidence was insufficient to prove a violation) was
the appropriate finding, in our opinion.

--dan handelman and other members of
portland copwatch

-----------------forwarded message-------------------

Date: Thu, 21 Feb 2019 13:02:43 -0800
From: Portland Copwatch < copwatch@portlandcopwatch.org>
To: Portland City Council Commissioner Jo Ann Hardesty
< joann@portlandoregon.gov>, Commissioner Amanda Fritz
< amanda@portlandoregon.gov>, Commissioner Nick Fish
< nick@portlandoregon.gov>, Commissioner Chloe Eudaly
< chloe@portlandoregon.gov>, Mayor Ted Wheeler
< mayorwheeler@portlandoregon.gov>, Chief Danielle Outlaw
< danielle.outlaw@portlandoregon.gov>
Cc: News Media < newsmedia@portlandcopwatch.org>

Members of City Council and Chief Outlaw

Portland Copwatch joins the chorus of community members expressing deep
concerns about the relationship between the Portland Police and the
"alt-right" protestors who have repeatedly come into Portland to provoke
angry responses. We also note that the information about this apparent
coddling of those protestors comes in the context of community
conversations on the Joint Terrorism Task Force, the apparent biased way
officers physically respond to neo-fascist / anti-fascist protests, and
the re-introduction of the body camera debate.

Several news outlets have reported that the Lieutenants' "union" and
several "experts" believe the Lt. Niiya's texts are par-for-the-course
means to engage people who are planning demonstrations. However it is
clear that Lt. Niiya went beyond engagement, encouraging Joey Gibson to
run for office, warning one of his followers about an arrest warrant,
and alerting Mr. Gibson, the protest organizer, when counter-protestors
were nearby.

Portland Copwatch also seems to be the only organization which is deeply
concerned that Lt. Niiya and Sgt. Pete Simpson are on some kind of email
list run by a person with a RiseUp account (RiseUP is a secure email
service run by and for progressive activists) which names "key players"
in the Patriot Prayer and Antifa organizations/ movements, with no
specific allegation that those individual are involved in criminal
conduct.

This goes back to state statute ORS 181A.250, which is one of the bases
for the community demanding the end of the PPB's involvement in the
JTTF. The statute prohibits collecting or maintaining such information.
If PPB officers were well trained on that statute, which was claimed by
the Mayor and the City Attorney, they would have removed those names
from the email before circulating it, and/or warned one another that it
was inappropriate. Neither happened.*

We raise the issue of body cameras because one of our main concerns has
always been the use of those devices at political events, at which the
police will be collecting / maintaining information about people's
social, political or religious affiliations with no suspicion of
criminal conduct. We repeatedly pushed back on the Bureau's Forensics
division (and others) recording at protests, only to be told the PPB is
not "maintaining" the information because they use it for training
purposes or send it to the City Attorney. (This same City Attorney's
office hid the Nazi-honoring plaques posted by now-Captain Mark Kruger
to avoid them coming up during a lawsuit around protests in the early
2000s.)

Moreover, one of our members attended the first public forum on body
cameras last week and raised the question of why the PPB hasn't seated a
stakeholder group as required by the ordinance passed when the Portland
Police Association contract was signed in 2016. He was told both that
the police did not know anything about the stakeholder group and that
they had it "taken care of."

We wrote to the Chief on February 1, quoting the ordinance. For context,
Mayor Wheeler had already won the office of Mayor in May 2016. The PPA
contract was set to expire in June, 2017. Yet, Mayor-elect Wheeler sat
on the sidelines and supported Mayor Hales negotiating that contract
while community groups including Portland Copwatch complained there were
not enough changes being made. Hales and Council, mistaking the
community's outrage as being solely focused on the ability of the PPA to
decide how body camera footage was going to be used, amended the
ordinance that approved the revised contract.

From ordinance 188037, October 12, 2016
(which can be found at
 https://efiles.portlandoregon.gov/Record/10018390/ )

NOW, THEREFORE, the Council directs section:

e. Council directs the Police Bureau to convene a
stakeholder committee to review the draft Body Worn
Camera Policy Version 2.2 and national best practices
as they continue to evolve. Additionally, the public will be
given the opportunity for universal review and to provide
public comments through Bureau's established directives process.
A report will be presented to Council by the stakeholder committee
and will be subject to further public input, potential
amendments and Council approval at that time.

PCW has expressed interest in serving on that stakeholder committee
multiple times, both with Mayor Wheeler and his aides and with the
Chief. Yet we are not being given any information about the formation of
the committee. The project manager has stated that the draft Directive
published in 2016 has undergone major changes, yet it has not been put
out for public review or approval by Council. A pilot project is about
to begin with none of the ordinance's requirements in place.

In terms of reaching out to people who organize protests, there is a way
to do that professionally without grooming people as "friends" and, as
has been explicitly stated as a goal, using them to gather intelligence.
PCW's parent group Peace and Justice Works has occasionally worked on
protests which assigns police liaisons. There has not been a reason to
engage in chummy dialogue about developments in activists' personal
lives. It is all about "we want to march here and here" and, frankly,
the police frequently saying "you can't march where you want, you have
to march where we tell you." The case of the progressive activist who
fell into Lt. Niiya's friendly banter is as much about our community
needing to reinforce the reasons for the Miranda warnings as it is about
police over-reach. There is a reason "you have a right to remain
silent." The lawyers who help us deliver "Your Rights and the Police"
seminar nearly universally give the same advice: never talk to the
police.

PCW does talk to the Chief, and sometimes others at the Bureau, to offer
critiques of policies, training, tactics and particular incidents in
order to promote a Bureau free of corruption, brutality and racism.
These discussions are an example of cordial, professional exchanges
between the police and community members which are not about false
friendships or digging for personal or incriminating information.

Finally, and perhaps needless to say, PCW also raised the concern
repeatedly that officers show up at confrontations between people who
promote unity and diversity vs. people who demean human rights ready to
attack the anti-fascist side. They wear body armor, regularly end up
deploying "less lethal" weapons (which have led to serious injuries)
and, most tellingly, turn their backs on the side which is known to be
armed and willing to use violence while facing the overwhelmingly
peaceful counterprotestors.

To sum up the problem you are having with the fallout from the texting
scandal, we will repeat what we wrote to Chief Outlaw on August 23:

It is understandable that you as an African American woman express
alarm that people accuse you of siding with the neo-fascists over the
antifascists. However, Danielle Outlaw the person is not the same as
Chief Outlaw, the head of an institution that is built on racism and
oppression. The actions of the PPB speak for themselves: whether
intentional or not, the PPB mostly leaves the radical right to their
own devices and attacks the protestors of the left.

Thank you
Dan Handelman, Peter Parks, Regina Hannon, Peggy Zebroski, Philip
Chachka
and other members of Portland Copwatch

* Beyond the PPB's collecting and maintaining this information
internally, that such a list was released publicly without redaction can
have serious consequences for the people whose names are listed, one of
the exact reasons law enforcement should not keep such lists.

homepage: homepage: http://www.portlandcopwatch.org