DOJ: Portland police slipping further from compliance with settlement

A report said the city is out of compliance with sections governing UOF, training, accountability, community engagement, crisis intervention and more


By Maxine Bernstein
Oregonlive.com

PORTLAND, Ore. — The Portland Police Bureau slid further over the past year in failing to meet reforms required under the city’s 2014 settlement agreement with the U.S. Department of Justice, according to a new report by federal lawyers.

The city is out of compliance with sections governing police use of force, training, officer accountability, community engagement, crisis intervention and how it tracks officers’ performance to identify potential problems early.

Justice Department lawyers also wrote in their latest annual review that Portland’s audit of police use of force during 2020 protests lacked credibility.

The Police Bureau’s internal audit concluded officers’ use of force during the city’s mass racial justice protests in 2020 complied with bureau policy 96% of the time.

Yet the U.S. Department of Justice lawyers wrote that audit, which was completed in mid-December, “lacked critical self-assessment,” and police internal investigations excused the bureau’s improper crowd control tactics.

For example, the bureau did not report each deployment of its flash-bang grenades as uses of force, unless an injury or complaint of an injury resulted, in violation of bureau policy requiring each use of force to be documented, the Justice Department found.

The report, filed in federal court, will be discussed when all parties to the settlement return to court Wednesday for an annual status hearing before U.S. District Judge Michael H. Simon.

[RELATED: Feds failed to document less-lethal force used at Portland demonstrations, report says]

The settlement, approved by Simon eight years ago, followed a federal investigation that found Portland officers used excessive force against people with mental illness. It called for widespread changes to use-of-force and Taser policies, training, supervision and oversight, a restructuring of police crisis intervention services and quicker investigations into alleged police misconduct.

A year ago, the Justice Department issued a formal notice to the city that it had failed to meet key changes under the settlement, citing inappropriate police use and management of force during 2020′s racial justice protests in Portland, inadequate training and subpar supervision by higher-ups.

In its latest review, the Justice Department also found:

— The bureau improperly concluded that members of its specialized crowd control unit, the Rapid Response Team, didn’t have to follow the bureau’s main directive on use of force because they were authorized to use greater force under a different crowd management directive. Federal lawyers said that was incorrect.

The bureau’s directive on use of force governs all uses of force and is overarching, the federal report said, adding that the team improperly trained its members. The team members resigned en masse in June 2021.

Further, team members who fired 40 mm or FN303 less-lethal launchers would qualify to use the weapons by firing two rounds in repeated sets, the report said. Yet officers were instructed in March 2021 they needed to comply with a federal judge’s order from June 26, 2020, that required officers to pause between each round fired, rather than firing a volley of shots, the report said.

The 40mm launcher fires foam-tipped projectiles that may contain paint or powder marking rounds or pepper spray rounds. The FN303 fires projectiles filled with a non-toxic brittle metal bismuth powder in the nose and a payload in the rear that can carry paint, powder markings or pepper spray.

— Police didn’t hold officers involved in shootings accountable for policy violations.

For example, on Christmas Eve 2020, an officer fired at the driver of a stolen pickup truck who rammed the officer’s patrol car that was stopped in front of the truck at a 76 gas station in Southeast Portland. Officers had tried to box in the stolen truck. But the truck driver rammed into Officer Jennifer Pierce, who was standing outside of her car, according to witnesses at the scene. Pierce was pinned between the truck and her patrol car, police said. The pickup then backed up and drove forward, striking her again. Pierce fired her gun at the truck after she was struck a second time, according to the pickup owner who had arrived on scene. No one was reported injured by the gunfire.

The report said the Police Bureau compromised the investigation by emailing all bureau members a video of the encounter while the scene was still active and before detectives could interview the officers involved. It’s unclear if the video was shared to try to catch the suspect, who drove off.

Pierce was hospitalized with a fractured pelvis. The pickup driver was arrested days later on Jan. 2, 2021, after a brief foot chase in Southeast Portland. But he escaped later that day from the Police Bureau’s detective division in the downtown Multnomah County Justice Center. He has since been caught and sentenced.

[RELATED: Body cams for Portland police part of tentative pact with feds on reforms]

The federal review also found that police internal affairs and police supervisors reviewing the shooting failed to identify one of the central problems in the encounter: the officer positioned her car directly in front of a large, occupied stolen truck, with her door open in front of the heavy truck’s bumper, the report said.

That violated bureau policy, which says: “Members are prohibited from intentionally positioning themselves in the path of a moving vehicle or in a location that is clearly vulnerable to vehicular attack.’’ Bureau policy also says officers “shall not use poor tactics or positioning as justification for shooting at or from a moving vehicle.”

The officer suffered significant injuries and was hospitalized and not interviewed until Feb. 10, the report said. The reason for the delayed interview was not documented by police, the report said.

“While the subject officer’s horrific injuries may serve as mitigation when considering a consequence of violating policy, the injuries do not suspend the Agreement’s requirement to apply policies uniformly and hold officers accountable,” the report said.

— The Police Review Board, which reviews alleged police misconduct and police shootings, and police internal affairs investigations made faulty conclusions about police actions that violated bureau policy. Among the problems: Police command staff improperly justified police force based on the actions of a crowd, rather than the actions of an individual. The bureau has not adequately enforced the requirement that police must try to de-escalate encounters before using force.

— Police union representatives who accompany officers to internal affairs interviews continue to interfere with those interviews, in some cases “substantially changing the outcomes” of those interviews, though the contract prohibits their interference, the report said.

While the contract doesn’t allow a union representative to interfere with police internal affairs interviews, it has become “commonplace,” in many of the “most consequential force events,” the report found. They coach responses, answer questions for officers under investigation or change the direction of questioning, the report found.

Further, a senior supervisor received a significant promotion after the Justice Department had identified to the city that the person had conducted “deficient investigations.

— In some cases, the city “voluntarily expunged” the discipline records of officers, in response to union grievances. There was no further explanation or response from the city.

— The frequency of police violent encounters with people in mental health crises increased from November 2021 to January. Since the end of 2018, when police used force against 8% of people perceived to be in a mental health crisis, police used force against 24% of the people perceived to be in a mental crisis in the second quarter of 2021, according to bureau figures.

The federal report said the bureau’s Behavioral Health Unit Advisory Committee, made up community members who provide input on police policies, should evaluate police shootings and other violent encounters involving people in crisis and issue recommendations to reduce the violence and inform police policy and training.

City attorneys responded that the committee hasn’t been required under the settlement to review police shootings until now.

Rachel Townsend, whose brother 40-year-old Michael Ray Townsend was shot and killed by police in June 2021 after calling 911 for help, and Tina Delgado, whose brother 46-year-old Robert Delgado was fatally shot by police in Lents Park in April last year, are expected to address the judge on Wednesday.

[RELATED: Ore. House passes package of police accountability measures]

— Justice officials cited concerns about police use of canines to “find and bite” suspects.

In one case, a police supervisor “substantially changed the facts’' to justify an officer’s actions, though it conflicted with what the canine officer’s own report said.

The officer sent a dog over a fence after a suspect on a “search and bite,” where the dog landed on a suspect and immediately bit him. The police handler wrote that he couldn’t see the suspect, who was hiding under a tarp and yelling that the dog was biting him. The supervisor reported that the dog bit the suspect “when the suspect refused to surrender,” a fact that the canine officer never indicated, the report said. The suspect said he had raised his hands in surrender when he heard the handler warn of the dog, but the officer reported not hearing a response from the suspect, according to the report.

In a second case, police attempted to arrest a burglary suspect barricaded in a utility room. After breaking the door, the dog was commanded to bite. Even after two officers grabbed the suspect to pull him out of the room, the police dog was still biting the suspect’s lower legs, the report said.

“The dog and the officers were in a tug of war with the subject’s body,” the report said, resulting in serious injury and hospitalization for the suspect.

The continued use of a “canine bite after seizure” is greater force than necessary, the federal lawyers wrote. Yet, the Police Bureau found the use of force was within policy.

COURT-APPOINTED MONITOR

Taking a cue from Judge Simon, Justice Department lawyers and the Albina Ministerial Coalition for Justice and Police Reform say the timing may be right to appoint a court monitor to oversee the settlement going forward.

The Justice Department and city continue to discuss the possibility of adding a court-appointed monitor “to protect the progress that has been made and prevent further slippage” in the reforms required, federal Justice Department lawyers Jared D. Hager and R. Jonas Geissler wrote to the court.

While there’s ongoing discussions about a possible independent monitor, Portland City Attorney Robert Taylor said the city believes a “facilitator” would be helpful for the city and Justice Department to try to resolve issues outside the parameters of the formal settlement.

The city is still negotiating with the police union for a policy governing use of body-worn cameras. It has contracted with AXON, an Arizona-based company that also makes and sells the Taser, for a pilot body camera program. If the city does not complete its negotiations with the union by Aug. 29, the court may hold hearings every two months for updates on the status of body camera bargaining, according to Hager and Geissler.

City Attorney Robert Taylor wrote to the court that the city is committed to complying with the settlement, “and restoring oversight and direction of our Police Bureau to our local community and its elected leaders.”

Sgt. Aaron Schmautz, president of the Portland Police Association, on Monday posted a statement on the union’s Facebook page in response to a weekend of violence that included a man shot and killed by police after he fired at officers attempting to take him into custody. He wrote that the city needs a “culture of accountability” for “criminals.” He called for leadership to stand by those “who step forward” and support and fund “Portland’s brave heroes” so they can keep the city safe.

“It is not through endless audits, reviews, and haranguing of split-second decisions,” Schmautz wrote.

The Mental Health Alliance, a coalition of advocacy groups for people with mental illness, criticized the city’s selection process for a new civilian dean of police training, which resulted in a job offer to a retiring Los Angeles police sergeant that was withdrawn shortly afterward during a background check, raising concerns about his policing podcasts. It also criticized what it sees as the city’s “glacial progress” in trying to form a voter-approved independent police oversight board. The alliance identified a need for increased funding in the city for sobering services, crisis response and peer support and mental health drop-off centers

The Albina Ministerial Alliance’s coalition said the city’s response to the latest Justice Department review reflected a “defensiveness” that’s worrisome.

“To be credible as a learning agency, it must take seriously the task of recognizing and acknowledging that it can and should do better,” attorney J. Ashlee Albies wrote on behalf of the coalition. “Without doing so, the City and PPB will not make progress towards resolution of this case, nor will it become a viable public safety organization.”.

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