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Subject: ANALYSIS: Police Review Board Report 9/19: Bait & Switch Discipline, Deadly Force

Portland Copwatch has reviewed the September 2019 Police Review Board
(PRB) Report which was published sometime around September 23, and found
more questionable police behavior, [...]


The new Report covers 17 cases heard between December 2016 and April
2019.*-2 The Portland Police Bureau (PPB) should explain why it takes so
long, including a span of almost three years, to release these reports.
If the discipline is subject to a grievance, that should be part of the
report as well as the outcome of the grievance. The reports continue to
be ridiculously redacted-- in addition to officer names, the dates,
locations, and genders of people involved are generally blacked out. [...]
Date: Fri, 11 Oct 2019 15:33:30 -0700
From: Portland Copwatch < copwatch@portlandcopwatch.org>
To: Christopher Paille < Christopher.Paille@portlandoregon.gov>
Cc: Chief Danielle Outlaw < danielle.outlaw@portlandoregon.gov>, Mayor Ted
Wheeler < MayorWheeler@portlandoregon.gov>, Auditor Mary Hull Caballero
< mary.hullcaballero@portlandoregon.gov>, Ross Caldwell
< Ross.Caldwell@portlandoregon.gov>, Citizen Review Committee
< crc@portlandoregon.gov>, "Rosenbaum-COCL, Dennis"
< dennisrosenbaum3@gmail.com>, Jonas Geissler
< Jonas.Geissler@usdoj.gov>, Seth Wayne < seth.wayne@usdoj.gov>, Jared
Hager < Jared.Hager@usdoj.gov>, Laura Cowall < Laura.Cowall@usdoj.gov>,
Janice Adeloye < Janice.Adeloye@usdoj.gov>, News Media
< newsmedia@portlandcopwatch.org>

ANALYSIS: Police Review Board Report 9/19: Bait & Switch Discipline,
Deadly Force Immunity , and Coercion
From: Portland Copwatch

To: Christopher Paille, Police Review Board Coordinator
Chief Danielle Outlaw, Portland Police Bureau

cc: IPR Director Ross Caldwell
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

October 11, 2019

Mr. Paille and Chief Outlaw:

Portland Copwatch has reviewed the September 2019 Police Review Board
(PRB) Report which was published sometime around September 23, and found
more questionable police behavior, officers being let off for use of
deadly force, and some troubling behind-the-scenes maneuvering of
discipline. As with the December 2018 report, there are several officers
who are (or were) in supervisory positions who "should have known
better." And as with just about every PRB report created since 2014,
there's a DUII case. We testified to City Council twice in September
noting the first PRB report of the two required by Code had not come out
yet; the PDF is time stamped five days after our testimony on September
18.*-1 The report can be found at
 https://www.portlandoregon.gov/police/article/742497 .

The new Report covers 17 cases heard between December 2016 and April
2019.*-2 The Portland Police Bureau (PPB) should explain why it takes so
long, including a span of almost three years, to release these reports.
If the discipline is subject to a grievance, that should be part of the
report as well as the outcome of the grievance. The reports continue to
be ridiculously redacted-- in addition to officer names, the dates,
locations, and genders of people involved are generally blacked out.
Revealing the facts around discipline proceedings beyond the PRB's
recommendations and the Chief's decisions is not breaching
confidentiality, but rather promoting the transparency the Bureau claims
to support.

One unusually long summary report details the back and forth among Board
members and seems to corroborate previous descriptions of PRB meetings
including coercive input from Bureau members trying to dissuade dissent.
Several questions are sidelined with the explanation that "officers do
that all the time," not allowing the discussion to focus on (a) whether
the behavior in question follows policy or training or (b) whether the
behavior should be prohibited in the future.

Of the 17 cases, Portland Copwatch (PCW) counts five-and-a-half "B"
cases-- "Bureau only," six "C" cases-- involving a civilian complainant,
and five-and-a-half cases we label "B/C" because they clearly involved
community members but the PPB did not treat them as "C" cases. This has
always been true for deadly force incidents, which make up four of the
cases: The shooting of Sarah Michelle Brown in March 2018 (B/C 2), the
shooting deaths of John Elifritz in April 2018 (B/C 3) and Patrick
Kimmons in September 2018 (B/C 4), and the death in custody of Richard
Barry in November 2018 (B/C 5). While all of the summaries have a
distant and clinical feel to them, the facts surrounding Mr. Elifritz's
case in which multiple officers shot a man in clear mental distress and
Mr. Barry's case, where cops joked while he lay dying, raise concerns
about how the PRB reviews ignore the humanity of the "suspects." One
other B/C case we labeled B/C1 involves an officer who seriously messed
up on a few incidents involving domestic violence and restraining
orders; it is bizarre the Bureau labeled this a "B" case. The last
half-case is one allegation in a broader review of what appears to be a
serial sexual harasser officer (case B2) who tested a Taser on
themselves in front of community members (which we label B/C 1a though
it's in the same summary).

As usual, the Bureau found no wrongdoing for any officer involved in the
deadly force incidents, offering only "debriefings" regarding one major
issue-- whether supervising Sergeants should get involved in tactical
operations-- and a few minor issues.

The DUII case is that of Commander Steve Jones, who broke a telephone
pole in June 2018 in a crash, destroying his police cruiser and luckily,
as noted, not hurting anyone (B5). Jones resigned before being
terminated per the Board's recommendation.

One of the most troubling cases involves what appears to be some
administrative sleight-of-hand by the Chief. While Sgt. Erin Smith was
found to have violated three separate policies when threatening to
arrest activist Benjamin Kerensa in November 2016, only one of those
allegations was considered by the Board (C5). The Citizen Review
Committee (CRC) recommended changing the PRB's "Not Sustained"
(insufficient evidence) recommendation to "Sustain" that Smith had lied
when telling Kerensa he could not video-record police activity--
something which is protected by state law. Rather than find Smith
violated the Truthfulness Directive in question, which would have led to
an automatic firing, the Chief changed the finding to a "Performance
Issue" and gave Smith one day off. The other two findings-- one of which
came from former PPB Captain Mike Crebs, the other of which the Chief
also Sustained at the request of CRC-- had to do with Smith giving out
false information and making a threat.

At least two other cases date back to 2016:*-3 An officer who falsely
claimed to have had his police car hit by a civilian's car and was fired
(B1) and the serial harasser, whose off-duty actions pursuing colleagues
were "Exonerated" but an on-duty kiss of another cop (B2) and the Taser
spark (B/C 1a) led to two weeks off without pay (though the Board
recommended three weeks off).

Receiving a week off without pay were a supervisor who sang an
inappropriate song with officers from other jurisdictions nearby (B3),
the officer who fouled up the Domestic Violence investigations (B/C 1),
and an officer who ignored a former colleague's inability to pass a
firearm test to get the other officer re-hired (B6). This last officer
retired before facing punishment.

Two cops received two days off without pay: one who ignored a suspect's
request to talk to a lawyer while the officer delivered "Miranda
rights"-- though the Board had only recommended one day off (C3), the
other a supervisor who had a relationship with a subordinate for two
years and failed to report it (B4).

Three officers were given one day off as punishment: (1) one who
contacted juveniles late at night over social media and failed to
document a sexual assault (C4), (2) Sgt. Smith as noted above (C5), and
(3) an officer who used pepper spray inappropriately during a protest
(C2), but only because the Chief agreed with the minority of three
members of the PRB rather than the majority four who asked for a "Not
Sustained" finding.

Officer Jimmy Harrison, Jr. was given the minor discipline of "Command
Counseling" despite facing multiple allegations including taking car
keys from a person he suspected had been driving drunk but not giving
them a receipt or documenting the seizure (C6).

Other than the four deadly force cases, the only incident which led to
no disciplinary findings was an allegation of excessive force using less
lethal weapons during a protest on February 20, 2017-- where a different
demonstrator's nose was famously broken (C1).

PCW's numbers refer to each kind of case in chronological order
throughout the Report.

In the December 2018 report, one out of 15 officers were fired; this
time it was one (B1) out of 24.*-4 As noted above, one officer resigned
(B5) and one retired (B6).

Chief Outlaw did step in to increase accountability in several cases:
her finding in the pepper spray case (C2), where even those Board
members who found misconduct only recommended low-level discipline but
the Chief gave the officer one day off; the Miranda warnings case, which
she bumped up from one day to two days because the officer had previous
Sustained findings (C3); and adding debriefings for officers involved in
the Brown (B/C 2) and Kimmons (B/C 4) shootings. The Chief lowered the
proposed discipline for the sexual harasser from three weeks off to two
weeks after changing a "Sustained" finding about violating the chain of
command to "Not Sustained" (B2). The PRB report indicates the Chief
changed the discipline from level "B" with aggravating circumstances to
level "C" with no aggravating circumstances for the supervisor who
failed to report dating their underling (B4); the technical change
didn't result in a change to the outcome.

Overall the Board considered 76 allegations and found 24 Sustained (one
of which the Chief changed to Not Sustained), 33 Exonerated/In Policy,
and 19 Not Sustained (one of which was changed to Exonerated after
further investigation of case C1 about the less lethal weapon, another
which was sustained by CRC and then the Chief in cases C2 about pepper
spray and C5 about lying). This may be the lowest "Sustain" rate yet for
a PRB report: 32%, which is still much higher than most misconduct
investigations simply because most incidents are reported to PRB when a
supervisor thinks the officers violated policy to begin with. That was
true for eight of the 17 cases. The four deadly force incidents were
automatically sent to the PRB. The other five were due to someone
"controverting" the findings: the "Independent" Police Review (IPR) in
case C1, an Assistant Chief in case B4, Internal Affairs in case C6, and
all three entities in cases C2 and C5.

The PRB reports continue to be woefully inadequate to inform the
community about what is going on in the behind-closed-doors hearings,
reflected in two-to-eight page documents. As noted in our December 2018
analysis, the summaries do not always list how many members of the Board
were seated, and in several cases, fewer than the total number present
voted with no explanation. Five people sit on "normal" PRBs to consider
discipline and findings in lower-level cases, while seven sit for deadly
force and other serious incidents. Notably, there are three PPB members
on regular PRBs and four on full ones, giving police the majority vote
in all cases. Too many votes are reported as "unanimous" with no number
given, though split votes in the same cases hint at how many voting
members were present. In three of the four deadly force cases, there are
votes without totals and a number of votes totalling less than the
requisite seven members. In the Brown shooting (B/C 2), the first two
votes show 7-0 unanimous votes but the remaining five only have six
votes total. In the Elifritz case (B/C 3), the votes are 7-0 until the
Board discusses supervision and post-shooting actions, when again only
six people vote. In the in-custody death of Mr. Barry (B/C 5), seven of
eight votes are simply listed as "unanimous" and one about a
supervisor's performance shows a 5-1 split. All nine votes in the
Domestic Violence case (B/C 1) and the one in the song-singing case (B3)
only show four people voting. We repeat here our December 2018
recommendation: "PCW continues to urge the Bureau to be clear how many
voting members take part and why there is a deviation from the requisite
five or seven votes."

Also along the lines of the inadequacy of the PRB reports, we return now
to our game of "Police Review Board Report Mad Libs." This time we're
filling in serious guesses to the blank spots. The song-singing case
(B3) says that "Employee sang the song '---blank---' during the ---blank
blank blank blank--- at --blank blank---." Here's our guess: [The
Lieutenant] sang the song [Camptown Races] during the [regional crowd
control training] at [North Precinct]. We welcome any offer to tell us
how many blanks we got correct.

Once again, facilitator Bridger Wineman's eight summaries have the
lowest number of redactions because he uses the fewest pronouns and
finds ways to avoid putting non-public information in the narratives.
While PCW still urges there to be less secrecy-- especially in deadly
force cases and incidents like Commander Jones' car crash (B5-- which is
detailed on the PPB's own news release site*-5)-- the reports would all
read better with fewer blackouts. That said, someone at PPB blacked out
the date and time, location of the collision, and the _vehicle type_ in
the Jones case. We previously suggested the Bureau consider using the
pronoun "they" which is now broadly acceptable to apply to one person,
rather than blacking out what is usually a "he, him or his" in the PRB
reports (since only about 16% of sworn personnel are female). While the
Bureau now regularly prints the dates of deadly force incidents (which
is helpful), other information--sometimes including what day the
hearings were held-- is not always included in the summaries (though the
cover memo provides that information).

The report would also benefit from having the cover memo summaries
attached as the last page of each report. Those summaries reveal the
final outcome of the discipline in each case. They also previously
included information about what happened to the many, many
recommendations made by the PRB. Considering the OIR Group made a formal
comment in its 2019 deadly force report about the lack of tracking PRB's
suggestions,*-6 it is alarming that the minimally provided previous
information about what branch of the Bureau was looking into the
recommendations is no longer present. The cover memo could also benefit
from listing the proposed and final discipline in the narratives; the
Sgt. Smith case says Chief Outlaw found the conduct was Category C but
the meaning of that-- the one day suspension-- is in another column.

Finally, PCW sadly must continue urging the Bureau and City Council to
open up the process around the PRB in any or all of the following ways:
--allow the community member who was harmed (or their survivors) to
testify to the Board.
--allow the media to attend the hearings.
--allow the public to attend the hearings.
--have the pool of PRB volunteers hold public meetings every time a PRB
report comes out so they can discuss the process with the community and
hear about concerns. They are "representing" the rest of Portland at
these meetings but are never seen in public.

(Note: The analysis continues on line at
 http://www.portlandcopwatch.org/PRBanalysis0919.html#continued

The subsequent sections are:

Four Deadly Force Incidents: Officers' Narratives Carry the Day

One Officer Fired, One Resigns, One Retires

Mysterious Missing Charges for Officer Who Threatened and Lied

Sexual Harasser, Taser Self-Tested Gets Two Weeks Without Pay

Violence at Protests: Once Cop Disciplined, One Not

Messing Up Basic Police Work

Sensitivity Training Doesn't Overcome Lack of Common Sense

The Community Still Needs More Information

and a Conclusion )

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