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COMMENTS: Bias-Based Policing, Satisfactory Performance & Other Directives, September 2017

Below are Portland Copwatch's comments on the Directives posted for review in September < http://www.portlandoregon.gov/police/59757>. We are commenting on the seven policies posted on September 1 even though the Bureau did not sent out appropriate notification on these policies, just to be sure we make it within the deadline (which we note has been extended from Sept. 15 to Sept 21).* Nonetheless, we continue to think all comment periods should be 30 days long to allow for appropriate discussion, especially among organizations and official city advisory bodies which only meet once a month.

We combined the comments on Directives 315.30 on Satisfactory Performance with those about 311.00, 312.00 and 630.31 since it appears those policies are being absorbed by 315.30. It would be helpful, as we've said in the past, for the Bureau to clearly state its intentions when posting such proposed changes so that we don't have to waste time cross-referencing the policies ourselves.

It is helpful, as we've acknowledged before, that the PPB is now providing red-line versions of the proposed revised policies, but the documents are still not perfect. Directive 215.00 shows the wrong numbering for the original policy being modified. And none of the red-line documents explain in their front-page headers that the "clean" versions are followed by the red-lines.

We continue to believe everyone's interests would be served by numbering the Definitions sections and labelling each section with a letter, so that one could refer to "Section A(4)" when citing, for example, to the definition of Profiling in Directive 344.05.
From: Portland Copwatch < copwatch@portlandcopwatch.org>

To: Interim Chief Chris Uehara < Chris.Uehara@portlandoregon.gov>, Captain Jeff Bell < Jeff.Bell@portlandoregon.gov>, Lt. Craig Morgan < craig.morgan@portlandoregon.gov>, Dennis Rosenbaum < rosenbaumandwatsonllp@gmail.com>, Community Oversight Advisory Board-Mandi Hood < mandi.hood@portlandoregon.gov>, Citizen Review Committee < crc@portlandoregon.gov>, PPB Directives < PPBDirectives@PortlandOregon.gov>, Mary Hull Caballero < mary.hullcaballero@portlandoregon.gov>, Mayor Ted Wheeler < MayorWheeler@portlandoregon.gov>, Nicole Grant < Nicole.Grant@portlandoregon.gov>

Cc: Jonas Geissler < Jonas.Geissler@usdoj.gov>, Brian Buehler < brian.buehler@usdoj.gov>, Seth Wayne < seth.wayne@usdoj.gov>, Jaclyn Menditch < jaclyn.menditch@usdoj.gov>, News Media < newsmedia@portlandcopwatch.org>

Date: Thu 14:15

COMMENTS ON BIAS-BASED POLICING, SATISFACTORY PERFORMANCE AND OTHER DIRECTIVES, SEPTEMBER 2017

To Interim Chief Uehara, Capt. Bell, Lieutenant Morgan, PPB Policy Analysts, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board staff, US Dept. of Justice, Citizen Review Committee, Mayor Wheeler, Ms. Grant, Auditor Hull Caballero and the Portland Police Bureau:


As usual, our references to sections of the Directives are about the Procedure section unless otherwise noted.

344.05 BIAS-BASED POLICING/ PROFILING PROHIBITED

Some of the comments we made on the Bias-Based policing Directive this April were incorporated in the new draft. We believe that the Bureau has made some strides toward improving this Directive by removing the word "solely" from the definition of "bias-based policing." However, we continue to remind the Bureau that as a local entity, Portland can define "profiling" more narrowly than the state. Thus we are encouraging that the word "solely" also be removed from or modified in the definition of profiling, perhaps adding a note that says "while the state law defines profiling as targeting an individual based solely on the individual's perceived [characteristics], the Bureau's definition is more restrictive." This would be consistent with the definition of bias-based policing and similar to how the Bureau explains its Force policy is narrower than the Constitutional "Graham" standard. We previously suggested the Bureau use the language that was put into 810.10 on immigration enforcement, which prohibits action based "solely or primarily upon a person or group's actual or perceived national origin or immigration status." In other words, adding the words "or primarily" after "solely" is an acceptable solution.

Also, the language reflecting the state law indicates the encounter has to be due to "suspicion of violating a provision of law." The reality is, sometimes officers see a person and pull them over and then sometimes decide to explain the stop by relying on a traffic or equipment violation-- but sometimes no reason at all is given. Often the person is let go with no citation, warning or other paperwork. Thus the use of the term "any police action" as used in Policy Section 2 should apply to the definition of profiling. (We note here that we support the Bureau's apparent deliberate omission of HB2355's modification that the action has to be self-initiated and not based on a call for service.)

Specifically to cite the strengths here:

--Bias-based policing is now defined as "the differential treatment of any person or any group of persons and/or any discriminatory practices by the Bureau or its members that are motivated by prejudicial judgments of the individual on the basis of their membership in a legally protected or Bureau-proscribed classification."

--The previously-existing Policy Section 4 has been moved up to be part of Policy Section 2, and still reads that officers "are prohibited from taking or refraining to take any police action motivated by bias or prejudice," adding that they "should, when appropriate, strive to engage community members in a positive manner."

--A new Section (2.2) explicitly says that officers "shall only use the listed classification information in combination with other relevant and specific identifying traits or factors (e.g., description of clothing, height, etc.) when searching for a specific individual or group."

But here is one of our main concerns: The Directive seems to both exempt and include what officers would call "mere conversation" from these policies. Section 2.1.1 tells officers they are "permitted to engage in conversations or encounters with community members for the purpose of building relationships, seeking assistant or exchanging information, so long as the encounter is non-coercive and the community member is permitted to cease the conversation and/or depart of their own accord." This is a reasonable description of a "mere conversation" but (a) doesn't prohibit officers from disproportionately stopping to talk to people based on any of the protected characteristics (including race), (b) doesn't require officers to let the person know they are free to go, and (c) doesn't recognize that for many people, an armed uniformed officer asking to talk to them seems like a coercive action. Then section 2.2.2 seems to contradict that open-ended invitation by saying officers "shall not consider any of the protected or Bureau-proscribed status characteristics when deciding to initiate even those consensual encounters that do not amount to legal detentions or to request consent to search." These two paragraphs need to be reconciled, weighing heavily toward the latter.

We see that the Bureau acknowledges the passage of HB 2355, which rewrote the state profiling law, but relying on that law causes a few problems. In the definition of profiling, the list of characteristics which, if used to target an individual, includes "gender," which is appropriate, but that word was removed from the state law. The previous list of protected characteristics (in the old definitions section) included citizenship, immigrant or refugee status, veteran status and marital status, which are all removed here. In Policy Section 2, where there is a list of legally protected classes, it adds back in citizenship, veteran and "marital or familial" status, but omits gender identity and homelessness (which are both listed in the state law). Policy Section 3, seeking to define the "Bureau-proscribed" categories, does mention housing status, and adds back in immigrant or refugee status. As per PCW's recommendations, the term "source of income" was added back in-- but then "economic status" is listed in parentheses. These are two different concepts: How someone makes money (whether it is returning recyclables or being the CEO of a corporation) is not the same as how much money they have or appear to have (rich vs. poor).

Another concern is that a previous requirement (in old Policy Section 5) told officers they had to take "immediate action to stop or prevent [bias based policing]" that they observe. This is somewhat watered down in the new Procedure Section 1.2, which just says "Members who engage in, condone, or fail to report bias-based policing or profiling shall be subject to discipline, up to and including termination." We're all for the sentiment of that sentence-- we just want to see "condone" be expanded to include the previous requirement to take action to stop such behavior. We support the continuation of explicit language saying supervisors who fail to act based on reports of bias shall be subject to discipline as well (new Section 1.2.2, former Policy 7).

We thank the Bureau for taking out the specific minutiae on how to file a complaint in favor of a streamlined description (Section 3.1).

Our final comment repeats the concern we brought up in April about the Section (formerly 4.1, now 6.1) which makes a blanket exemption to disclosing "personal information" including the name of a complainant and employee, citing ORS 192.502. To accurately reflect that statute and the possibility that officers' names may be disclosed, the Directive should say "The statute allows for disclosure when doing so is in the public interest."

DIRECTIVE 315.30 SATISFACTORY PERFORMANCE
(and 630.31 ASSISTING MOTORISTS / 311.00 DUTY REQUIRED / 312.00 REQUEST FOR ASSISTANCE)

As we wrote in 2014, 2015 and June of this year, "we continue to believe that Directive 315.30, taken as a whole, will be used by officers (and their bargaining units) to defend any individual incident of excessive force, saying the officer only has to display less reliance on force throughout his or her career." We continue to urge the Bureau to rewrite the Directive to explicitly say that if an officer uses too much force or makes poor decisions in one serious incident, it could lead to discipline, a concept which has been put into Directive 1010.00's Policy Section 2.

We also still want to see the Bureau remove the language in Section 2.1 that says the Bureau "requires" officers to "apply effective force when necessary," so that officers will not face discipline if they choose not to use force. Section 2.2 says force should be applied "when appropriate," which gives more leeway for those officers not resorting to violence, though better language might be "when reasonable and lawful."

That said, the major revisions to the Satisfactory Performance Directive are delving into specifics of those actions officers might take and be found in violation of policy. Many of the items seem to have grown out of cases that were heard by the Police Review Board in recent years, such as leaving their precincts for personal reasons without permission (Sections 1.2.6 and 1.2.12), failing to show up for shift (1.2.10), and feigning illness (1.2.5). Actually, those sections are being lifted from another policy under review, 311.00 "Duty Required." Other sections on responding to requests for assistance (1.2.1) and responding courteously to community requests for help (1.2.2) came from Directive 312.00 Request for Assistance, also under review. There's another section which is duplicative of Directive 630.31 on assisting motorists. Many people may not know the history of that Directive, which came into effect after a civilian filed a complaint and appealed the outcome to the Police Internal Investigations Auditing Committee (PIIAC), the precursor to the Citizen Review Committee. Based on one case and a recommendation from PIIAC, the Bureau adopted 630.31. This can be a good model for future additions to the Directives.

That said, while we are all for consolidating Directives so they are not too numerous to memorize, lumping too much in one place may end up trivializing the importance of such policies as the stranded motorist policy. Thus we suggest keeping 630.31 and 311.00, but adding references that violations of those policies will be considered performance issues under 315.30. Then 315.30 can cross-reference 630.31 and 311.00 among reasons an officer could be found out of policy.

It is not clear where the remaining Section (1.2.8) came from, but we are not prepared to track it down in all existing Directives at this time. It reads "Members shall take appropriate action on the occasion of a crime, disorder or other condition requiring police action." As with the Directive on Crowd Control, we are concerned about the vague nature of the term "disorder" as an invitation for police to take "appropriate action." We hope this can be better defined.


DIRECTIVE 220.40 LAWSUITS AND CLAIMS (previous comments made October 2014 and June 2017)

We remain concerned that this policy does not prohibit officers from discouraging or retaliating against civilians who file or threaten to file lawsuits. Section 4 on "Public Claims" prohibits officers from informing the person they will get money, discussing the facts of the incident, or admitting fault, but should go further.

We still feel it is good that officers are ordered to tell the complainant to contact the City about filing a claim (Section 4.1), but continue to believe it would be better if they suggest contacting an attorney prior to filing such a claim.

We continue to appreciate the Bureau's policy that officers must accept notice of a lawsuit offered by a server (Section 2.3). However, the Bureau did not re-insert the previous requirement that officers cooperate with the City Attorney, Police Legal Advisor and Risk Management in defense against the lawsuit (Section 1.5.2 from the pre-2014 version). This could mean officers are free to admit fault and work to settle the complaint directly with the plaintiff. We doubt that's what the City has in mind when they removed that provision.

Our final note here is that the option to contact the "Police Legal Advisor" has been struck. We're not even sure if that person was someone other than the City Attorney but it does seem appropriate to keep the City's legal matters in the appropriate areas of focus. As the Auditor gears up to hire a separate attorney (who can advise the Independent Police Review separately from the Bureau), it would be helpful for the public to understand whether the Bureau has its own legal advisor inside or outside the City Attorney's office.


DIRECTIVE 215.00 PERFORMANCE EVALUATIONS (previous comments April 2015 and June 2017)

When Performance Evaluations were introduced, the community was promised the Bureau would be doing these every six months. Now with a stroke of the pen, the new Directive is reducing those to annual reviews. The best we can figure is that this is being done because most other evaluations (per Bureau of Human Resources) are done annually. But no other job has the level of contact with community members as police officers, who often put their hands on, use force against, and sometimes arrest people. Without a clear explanation, PCW must strongly oppose the reduction in reviewing officer behavior. The DOJ Agreement calls for review of an officer's training history semi-annually (paragraph 81) and at least one threshold for examining use of force is based on a six month window (paragraph 118).

In our previous comments we noted that the Evaluations being barred for use as a disciplinary tool (previous Policy Section 2) makes no sense since officers with multiple complaints sustained against them (or one serious complaint) should be demoted or fired. The new version explicitly says the evaluation will "not serve as the basis for discipline, discharge or demotion" (Section 6.1). It still says Evaluations will not affect pay, except now the evaluation might add to merit pay for "non-represented sworn members and non-sworn members" (Section 6.1). It clarifies that Portland Police Association (PPA-not defined in the Directive) members can have their evaluations used for promotion if all other information between two candidates is the same (Section 6.3, old Policy 2). However, Portland Police Commanding Officers Association (PPCOA-also not defined) members can have the evaluations used for promotions or specialty assignments (New Section 6.4).

Section 7 (old Section 2) continues to protect the evaluations from public records requests except as required by law. As we noted before, information that is in the public interest including sustained misconduct allegations needs to be released. We wrote: "The people who repair Portland's street lights do not have the same kinds of interactions with the public as the police do. Thus their misconduct may be shielded from the public eye without the same potential consequences as officers who are found guilty of serious or repeat misconduct." The Directive should alert officers that such information might be released in the public interest.

We appreciate that the Bureau, after our repeated suggestions, now defines a "201 file" as the personnel file (Section 4.1.5.1).


DIRECTIVE 1501.00 FIELD TRAINING PROGRAM (previous comments in June 2017)

We are glad to see the addition of prohibiting officers with findings of excessive force or mistreatment of individuals with mental illness barred from being Field Training Officers for three years or if they have two such findings in five years (Section 1.2.1.1). This is consistent with guidelines for all training officers under the DOJ Agreement, but is probably still too lax. Officers who have other kinds of sustained findings-- especially around Bias-Based Policing, Rudeness or other inappropriate contact with the public should also be barred from mentoring new officers.

In our June comments we noted that there are supposed to be bi-weekly reports. The definition of bi-weekly reports now says "bi-weekly," but references to weekly reports remain (for example in Sections 2.2.4 and 2.2.5).

We also suggested that in addition to reviewing the evaluations done by Field Training Officers, the supervisors (the Director, Sergeant and Coordinator) should need to spend some time directly observing the recruits. That way they can see whether the recruit's performance, comprehension of policies, interactions with the public, or other behaviors have been appropriately (or inappropriately) transmitted by the Field Training Officer. We wrote, "if the FTO is teaching the trainee to 'cut corners,' that will not show up in the evaluation before the Trainee becomes a full-fledged officer. We encourage multiple first-hand evaluations to ensure consistency."


CONCLUSION

We noted in the last set of comments that the body that is going to replace the Community Oversight Advisory Board is being required by City Council to be integrated into the Directives review process. However, since that body is unlikely to begin functioning until early in 2018, we hope the Bureau will recognize that our comments about numbering sections and revising the review timelines to accommodate civilian input will lead to improvements once that system is in place.

Thank you as always for the opportunity to comment
Dan Handelman and other members of
Portland Copwatch

*-On September 13, the Bureau informed us that a change in software caused a glitch which delayed the proper posting of the Directives that went up on September 1. However as of 2 PM today, Sept. 14, proper notification has still not gone out to the email list, though the deadline was extended by 6 days as promised by the PPB.

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