Portland Copwatch: COMMENTS on Portland Police Crowd Control Directive 2.6.17
Below are comments on the most recent draft of Directive 635.10 on Crowd Management/Crowd Control
http://www.portlandoregon.gov/police/article/623612 based on comments we made in September 2014 when the last draft was posted. In the context of escalating police violence at protests since November 2016, we hope the Bureau begins paying attention to our comments on use of weapons. In preparing this document, we had to compare the current draft to the existing directive (very few changes, except for numbering) and to the 2014 proposal (the proposed changes apparently have been dropped). We also remind the Bureau that the Citizen Review Committee (CRC) made a number of recommendations in January 2015. We've included a section below outlining their recommendations and our comments from that time.
Portland Copwatch Press Release
COMMENTS ON DIRECTIVE 635.10, CROWD MANAGEMENT/CROWD CONTROL
by Portland Copwatch
February 6, 2017
To Chief Marshman, Capt. Bell, Captain Krantz, PPB Policy Analysts, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board (staff), US Dept. of Justice, Citizen Review Committee and the Portland Police Bureau:
Below are comments on the most recent draft of Directive 635.10 on Crowd Management/Crowd Control (< http://www.portlandoregon.gov/police/article/623612>), based on comments we made in September 2014 when the last draft was posted. In the context of escalating police violence at protests since November 2016, we hope the Bureau begins paying attention to our comments on use of weapons. In preparing this document, we had to compare the current draft to the existing directive (very few changes, except for numbering) and to the 2014 proposal (the proposed changes apparently have been dropped). We also remind the Bureau that the Citizen Review Committee (CRC) made a number of recommendations in January 2015. We've included a section below outlining their recommendations and our comments from that time.
As you examine Directive 635.10, we urge you to also review Directive 635.00 covering strikes and job actions, which contains the phrase "neutrality will be the guiding principal [sic]," a good caution to officers reading the Crowd Control Directive. It also contains references to ORS 181.575 which restricts law enforcement from "collecting or maintaining" information about people's social, political or religious affiliations without reasonable suspicion of criminal conduct. Directive 635.10 does not.
In general there are many problems with Directive 635.10 as written. Many of them are policy-related, such as the inclusion of pepper spray, impact munitions, "riot control agents" (presumably tear gas or its equivalent and flash-bangs), and the Mounted Patrol, all of which PCW opposes. Others have to do with language used, such as indicating in the definitions section that crowd control is used when "unlawful conduct... threatens to take place." Not only is conduct unable to make threats, but the idea of crowd control being used "to address public assemblies where unlawful conduct has taken place" opens up for officers to crack down if only one person jaywalks during a protest.
The Directive doesn't include a number of items we'd like to see addressed, such as banning violent arrests of protestors and bicycles as weapons, and how to coordinate the use of outside agencies--including their training, guidelines and identification.
It's also not clear whether the Bureau and the "Independent" Police Review Division consider mass police crackdowns on protests as single incidents of Use of Force or multiple. It seems that if multiple officers attack and/or injure multiple protestors, that should be reflected as multiple uses of force in the statistics. If one person is hit with a baton and another is pepper-sprayed in the mouth, and another is hit by a bicycle, these are three distinct uses of force. When there is a mass shooting by a civilian, we presume that is not counted as just one incident of murder.
We note here that, referring to the definitions section, just because an event is publicized doesn't imply that it is permitted. It seems that in practice, the Bureau treats events differently if there is (a) a permit or open dialogue with organizers versus (b) if there is no permit or there is no such dialogue happening. In other words, the idea that an event is "planned" doesn't seem to affect the sometimes negative behavior and stereotypes the Bureau brings to the demonstration. We think these differentiations should be minimized so that all protests are treated fairly. We urge you to take up on a suggestion sent to the City about 13 years ago by the NW Constitutional Rights Center to differentiate events not as "permitted/unpermitted," but instead as "coordinated with the Bureau/ not coordinated with the Bureau." The latter category should come with a caveat that states: "The Bureau will not take adverse action against a group because it has refused to establish lines of communication with the Bureau." There should be an explicit guideline not to make assumptions about why people may or may not apply for a permit.
We also support NWCRC's idea to change "crowd management" to "crowd facilitation" since that is the focus of the Directive.
We want to clarify here that our purpose in sending these suggestions is to alleviate as best we can a practice which has harmed members of our own group and others in our community. Members of our group have been "kettled" and pepper sprayed, pushed up against the wall by a police horse, hit with police bicycles, and suffered and witnessed other abuses at protests. We have no interest in perpetuating police use of violence against unarmed, peaceful protestors. We oppose the use of the current array of weapons but are not going to advise on ways to harm people, that is not our task as a group promoting police accountability.
COMMENTS ON SECTIONS, IN ORDER
Policy Section 1 states that "The Bureau will [apply] coordination, direction, guidance, and when necessary, control to protect life and property..."*-1 Who decides that "control" is "necessary"? It seems more instructive to say "when under specified appropriate circumstances" and to give guidance on when "control" is proper.
--Procedure Section 1: Planned/Permitted Events
Section 1.1 asks the Bureau to have planned/permitted event organizers identify a primary liaison. The sentence suggesting that should end, "if possible, but not required to provide one." It also should be noted that there have been instances where the police monitor Facebook pages and contact people involved in planning events in a way which does not come off as meaningful assistance, but rather creepy surveillance.
Section 1.2 refers to a "threat assessment," which kind of cuts to the heart of the attitude problem toward free speech events. Why not say an assessment of the event will be conducted including concerns about possible disruption of the event or safety issues concerning the public? The word "threat" should also be removed from section 1.3.
Section 1.4 states that "potential targets of a protest should be advised of the event to minimize surprise and confusion." That sentence should identify whom the Bureau expects to do that notifying. Surely activists who wish to bring a protest to the front door of a corporation may not want to give that corporation a heads up. Knowing that the police are instructed to do this (and admittedly, this was in the old Directive and we never really noticed it), is likely one reason many people do not wish to coordinate their actions with the Bureau.
Section 1.5 refers to officers who will "monitor crowd activity." This seems to be a broad guideline that allows for collection of information in violation of ORS 181.575.
--Procedure Section 2: Unplanned/Spontaneous Events
We note here that in the Sept. 2014 version, Procedure Section 2.1 added two important words after "many spontaneous events can be lawful and facilitated with minimal... police assistance." Those words were "OR NO," as in, "minimal or no police assistance." We suggest putting those words back. This section would benefit from switching the order and moving the warning that unplanned events "may create a risk to public safety" to follow the reminder that "an unplanned/spontaneous event does not automatically mean it is an unlawful assembly." (Also, to re-inforce the idea of not over-policing, the word "serious" should be added before "risk").
Procedure Section 2.3 should (a) replace the word "threat" with the words "based on any serious risk," (b) switch the order of the two clauses, and (c) remove the term "maintaining order" so it reads "The police response will be commensurate with the overall need to protect the constitutional rights of free speech and assembly, and based on any serious risk to public safety, life and property." This will help highlight the Bureau's stated priorities of supporting First Amendment rights above all else. *-2
The same section calls for "decisive and appropriate actions during the initial stages of any disturbance," which seems to encourage the use of intimidation rather than de-escalation.
--Procedure Section 3: Incident Commander
In Section 22.214.171.124 the word "threats [to public safety]" can be changed to "risks" to tone down the rhetoric. (Same for Section 3.3)
Section 126.96.36.199 which says the Incident Commander (IC) should consider "prior behavior of identified participants and crowd leaders" is troublesome and leads to political profiling. Clarity this or remove it.
Section 188.8.131.52 refers to "damage to property" but doesn't differentiate between temporary protest statements such as chalk, stickers or water-based paints versus more serious damage.
Section 184.108.40.206 is the section that would allow Mounted Patrol in crowds, which we think is dangerous both to the horses and the participants and should be stopped. (We continue to believe the PPB should retire the MPU and use the money for anti-racism and other equity programs.) In listing the Rapid Response Team, the MPU, the police aircraft and other agencies, the Directive does not talk about what circumstances would lead to those teams being called into service.
Section 3.2 says the IC should contact "leaders" (though "liaisons" were discussed earlier, a smarter word for crowds that work non-hierarchically) to "establish intent." Does that mean the Bureau's intent or the crowd's? The words "order of " should be removed so it says to "negotiate/facilitate the event." (The word "liaisons" should also be substituted in 3.3.6.)
Despite this section saying the IC should give consistent orders, we have repeatedly seen or heard of contradictory commands such as "get on the sidewalk / stay off the sidewalk." This point should be made more clearly and strongly, perhaps in its own section.
Section 3.3.1 asking to consider the "likelihood of police action improving the outcome" should add "as opposed to police presence escalating the situation."
Section 3.3.2 refers to "legal standing" in a way that doesn't immediately convey what that means.
Section 3.3.3 asks the IC to "weigh effectiveness" of targeted arrests. More guidance such as the level of criminal behavior, likelihood of escalating crowd tensions, and timing should be included. (This also applies to section 4.1.3 on "selective arrests.")
Section 3.3.8 should refer to "weapons" rather than "tools," unless the police are coming armed with screwdrivers and hammers.
Section 3.3.9 should add de-escalation to the consideration of disengagement.
Section 3.4 is a good place to re-enforce the concept of neutrality listed in Directive 635.00. It calls on officers to "maintain a professional demeanor despite unlawful or anti-social behavior." It should be clear this means that officers should not personalize outgoing or incoming comments, or comment on the subject matter of the event. At Copwatch, we tell officers "we're just here to observe."
(continued from previous email)
--Procedure Section 4: Crowd Control Tactics
Section 4.1.1 talks about "pre-emptive removal/confiscation of potential weapons." Again, that needs to be very clearly defined, as officers have claimed people use picket signs as weapons.
Section 4.1.2 talks about how bringing officers into view can "deter criminal activity," but it should be emphasized that such presence should be done with discretion, sparingly, and recognizing it can escalate tensions.
Section 4.1.3 on selective arrests should include, or perhaps a separate section should say, that officers should not target or block people trying to video record police actions.
Section 4.1.4 should refer back to section 3.2 and note that sufficient time should be given for people to comply with a dispersal order before any arrests are made. Also, it should direct that an officer deploy to the rear of a crowd to determine whether a dispersal order is actually audible throughout.
Section 4.1.5 about containing a crowd should explicitly prohibit doing so after a dispersal order is given.
Section 4.1.6 needs to refer to ORS 131.675, which is cited in the Directive, and gives guidance on when crowd dispersal is lawful.
Section 4.2 refers to a "skirmish line of members with batons," which doesn't distinguish between batons used to push a crowd (which is fairly disturbing in its own right) and taking swings at people indiscriminately.
Section 4.4 allows "target application" of pepper spray and allows "broadcast spraying" if "there is a crowd surge that threatens to overcome police lines." For officer and public safety, we believe pepper spray should not be used at all in crowds. (As written, it is also inconsistent in that impact munitions [4.5] and riot control agents [4.6] have to be approved by a supervisor.)
Section 4.5 allows for use of "impact munitions" (such as "bean bag" guns), also an idea we oppose. What would justify such a level of force that is potentially lethal?
Section 4.6 on "riot control agents' says that "violent behavior" includes "throwing items at police." This does not distinguish between a gum wrapper, paper airplane, empty plastic bottle, or cannon balls. Perhaps "items capable of causing injury more serious than a paper cut."
--Procedure Section 5: Prohibited Techniques
We are very supportive of Section 5.1 which prohibits the use of fire hoses and canine units in crowd control. We would like to see batons, pepper spray, impact munitions, Tasers, flash-bangs, tear gas and horses added to this list.*-3 If an armed person is engaged in a struggle with a civilian or police officer, the usual use of force rules should apply only to that person, not to everyone in the crowd or persons who do not pose a serious risk of bodily harm or death.
COMMENTS ON DEFINITIONS
As we've stated in many other comments, the Definitions Section should be numbered for easy reference. That said:
--We appreciate the current definition of passive resistance.
--We suggest adding definitions around "coordinated with the Bureau/ not coordinated with the Bureau" and other language improvements we've indicated above.
Once again, we encourage the Bureau to:
--Assign letters to major sections such as Definitions, Policy and Procedure. and --Provide "red-line" versions of Directives so reviewers know what is being changed.
Policy Section 1 indicates that free speech is a tradition in Portland-- isn't that true for the entire United States of America as well?
CITIZEN REVIEW COMMITTEE RECOMMENDATIONS
As we noted to City Council on January 14, 2014, Portland Copwatch was deeply concerned that CRC's Crowd Control report did not talk about the use of weapons at protests even though they had heard from demonstrators, lawyers, members of the public and from PCW about batons, pepper spray, horses, and bicycles. We raised the issue at the CRC's December 2014 meeting before the Committee adopted its Work Group report. They did not remedy this serious problem, even though the vote came just days after the PPB deployed "flash-bang" devices at a crowd protesting the Ferguson verdict, later "kettling" a bunch of people for arrest, many of whom were released and the ones arrested ending up having charges dropped.
CRC's report can be found at < https://www.portlandoregon.gov/ipr/article/556654>.
Recommendation 2/Name Badges: This recommendation has to do with making sure officers from other jurisdictions assisting the PPB in Crowd Control situations wear name tags. We asked CRC to recommend the Bureau and the City work on a state statute requiring all law enforcement to display name tags on their outermost garments based on PPB's Directive 312.50. We understand the City finalized its Legislative Agenda last week. We hope that this can be added to the City's Legislative Agenda.*-4 Since Portland frequently brings in outside agencies, some of whom refuse to follow PPB rules requiring identification, a state law is crucial.
Recommendation 3/Training: The recommendation asks PPB to "encourage" non-PPB law enforcement to attend PPB crowd control training. We believe the City should require such training for any officers (and supervisors) who will be assisting the PPB. Otherwise response to crowds will not be consistent with PPB training and will put the community at risk of harm, and both the City and the other agencies at risk of legal action.
Recommendation 4/Militaristic Uniforms/Equipment: While we support the recommendation to minimize the presence of militaristic uniforms and weapons, we think the phrase "unless absolutely necessary" is too vague and should be better defined, as it leaves too much discretion for the police to "gear up" in relatively harmless situations.
Also, we asked CRC in describing how "hard gear" officers can be "both [sic] a deterrent or a catalyst for tension," to change the word "both" to "either," so it is clear that it does not serve a dual role in the perception of a community member, but rather will be perceived one way or the other. They did not make that change.
Recommendation 5/Community Relations: We appreciate that CRC, at our suggestion, added the sentence "The PPB should be aware that not all community members and/or groups are open to [police] contact." We noted that there will always be members of the community who do not wish to interact with the police because of their militarism, violence, racially imbalanced enforcement, and other injustices inflicted upon civilians. While there is nothing wrong with recommending more contact, it should not be seen as a means to resolve problems in crowd situations per se.
Furthermore, we've heard of (and experienced) receiving unsolicited contact from the Bureau ahead of protest actions, and rather than feeling community-oriented, it comes off as an invasive means to collect information on political organizations. Organizers who had the PPB post to their Facebook event page were very troubled by that approach.
Recommendation 7/Permitting process:
We agree that the permitting process is cumbersome and should be centralized, but we support (and our parent group frequently engages in) the organizing of protests without permits, as permits are not always required, and some would argue are undue burdens on free speech/assembly/expression. We believe strongly that First Amendment events should not have to be cleared through the Police.
Recommendation 8/Publicizing Bureau expectations: While it may be useful for the Bureau to let people know how they prepare for large gatherings, and what kinds of behavior would lead to what kind of response, the laying out of "expectations" seems paternalistic and similarly tilting toward infringement of Constitutional rights. Reframing this as a frequently asked questions list would improve the recommendation greatly.
--CRC Recommendations We Can Support As Written
Recommendation 1/Sound Trucks: It was important to our group that the announcements made be coordinated by a trained Incident Commander and not the paramilitary Rapid Response Team. CRC's current version of this recommendation reflects that concern.
Recommendation 6/Friendly demeanor for front-line officers: We support this recommendation.
Recommendation 10/Revise preamble of directive to emphasize de-escalation: We support this recommendation.
Recommendation 11/No political profiling: We support this recommendation, which suggests the Bureau not target people based on their clothing or perceived political affiliation.
Recommendation 12/Prompt property release: We support this recommendation.
Thank you for the opportunity to comment. We will be commenting on other Directives shortly.
Dan Handelman and Regina Hannon
and other members of Portland Copwatch
*1-The redraft in 2014 said "to protect constitutional rights." That was a better phrase.
*2-The redraft in 2014 included an appropriate new section, then numbered 220.127.116.11, which listed protection of constitutional rights as the first factor to consider.
*3-The redraft in 2014 had a section (18.104.22.168) allowing Tasers to be used in crowd situations with supervisory permission. We are glad to see it removed.
*4-We'd also like to see the City support legislation limiting police use of deadly force, calling for special prosecutors in deadly/excessive force cases, and removing the word "solely" from the State definition of racial profiling, among other accountability measures.
(a project of Peace and Justice Works)
PO Box 42456
Portland, OR 97242
(503) 236-3065 (office)
(503) 321-5120 (incident report line)
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