Case 3:12-cv-02265-SI Document 1 Filed 12/17/12 Page 1 of 8 Page ID#: 1
S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian.brown@usdoj.gov BILLY J. WILLIAMS, OSB # 90136 Bill.Williams@usdoj.gov Assistant United States Attorneys United States Attorney’s Office District of Oregon 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
THOMAS E. PEREZ Assistant Attorney General ROY L. AUSTIN, JR. Deputy Assistant Attorney General JONATHAN M. SMITH Chief LAURA COON Special Counsel R. JONAS GEISSLER jonas.geissler@usdoj.gov MICHELLE JONES michelle.jones2@usdoj.gov Senior Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 50 Pennsylvania Ave., NW Washington, D.C. 20530 Telephone: (202) 514-6255 Facsimile: (202) 514-4883
Attorneys for Plaintiff, United States
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UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. THE CITY OF PORTLAND,
Defendant.

Case No. _______________ COMPLAINT

Plaintiff, the United States of America, brings this civil action pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, for injunctive relief, and alleges as follows:
1. This action seeks to remedy a pattern or practice of unconstitutional uses of force by officers of the Portland Police Bureau. Too frequently, persons who have or are perceived to have mental illness and are in crisis are subjected to unnecessary or excessive force by police officers. The Portland Police Bureau lacks adequate policies to guide officers in these circumstances, or training, supervision and accountability measures necessary to ensure that officers comply with the constitutional rights of people in mental health crisis.
I. JURISDICTION AND VENUE 2. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). Under

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§ 14141, the United States is authorized to bring suit against a state or local government in order to eliminate a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges or immunities secured or protected by the Constitution or federal law.
4. Injunctive relief is sought as authorized by 42 U.S.C. § 14141(b) and 42 U.S.C. § 3789d(c)(3).
5. Venue is proper in the District of Oregon pursuant to 28 U.S.C. § 1391. Defendant is located or resides in Oregon, and a substantial part of the events or omissions giving rise to this claim occurred in Oregon.
II. PARTIES 6. Plaintiff is the United States of America. 7. The Defendant is the City of Portland (“City”), which is chartered within the State of Oregon, and is liable for the acts or omissions of the Portland Police Bureau (“PPB”), a law enforcement agency operated by the City.
III. FACTUAL ALLEGATIONS A. Introduction
8. Pursuant to an extensive investigation of the Portland Police Bureau conducted by the United States Department of Justice (“DOJ”), the United States has determined that PPB engages in a pattern or practice of using unlawful force against individuals with actual or perceived mental illness, in violation of their constitutional rights.
9. Specifically, PPB officers engage in a pattern or practice of subjecting individuals with actual or perceived mental illness to excessive force in violation of the Fourth Amendment to the Constitution and other laws of the United States. This pattern or practice includes, but is
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not limited to, the following: (1) police encounters with such individuals too frequently result in a higher level of force than necessary; (2) officers use electronic control weapons (“ECWs”), commonly referred to as “Tasers,” in circumstances when such force is not justified, or deploy ECWs more times than necessary on an individual; and (3) officers use a higher degree of force than justified for low level offenses.
10. PPB officers engage in this pattern or practice of constitutional violations while performing law enforcement activities within the scope of their employment. The violations arise from the City’s failure to provide adequate policies, training and supervision to PPB officers on the proper use, reporting, and investigation of force.
11. The United States seeks injunctive relief to eliminate the Defendant’s violations of the law and to ensure that PPB implements sustainable reforms that establish constitutional policing practices. Constitutional policing is an essential element of effective law enforcement. Implementation of constitutional policing practices will enhance public safety for the people of Portland, enable the police to better ensure public safety, and restore public confidence in PPB. B. Background
12. On June 6, 2011, DOJ publicly announced its investigation, pursuant to Section 14141, to determine whether PPB was engaged in a pattern or practice of using excessive force, particularly against people with mental illness. As part of this investigation, DOJ reviewed hundreds of thousands of pages of documents, including PPB policies and procedures, training materials, internal use of force reports from a period of 18 months, public reports, internal affairs files, and various other documents related to use of force. The investigation also included hundreds of interviews and meetings with PPB officers, supervisors and command staff, as well as Portland City officials and community members. In August of 2011 and February of 2012,
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DOJ conducted on-site inspections of and ride-alongs with PPB and hosted dozens of individual interviews with community members, as well as hosted a widely-attended town hall meeting.
13. The City and PPB were fully cooperative throughout the investigation. They provided free access to documents and PPB personnel.
14. On September 13, 2012, DOJ released its report (“DOJ Findings Letter”) announcing that it had found reasonable cause to believe that PPB is engaging in a pattern or practice of using excessive force in encounters involving people with actual or perceived mental illness. DOJ’s investigation also identified serious deficiencies in policies, training, and officer accountability measures that substantially contributed to the pattern or practice of excessive force.
15. Also, on September 13, 2012, DOJ and the City jointly released a signed statement declaring the parties’ mutual intent to reach a negotiated settlement agreement to resolve the United States’ findings of unconstitutional conduct. C. PPB Engages in a Pattern or Practice of Conduct that Violates the Fourth
Amendment to the Constitution. 16. The Defendant, through its acts or omissions, has engaged in a pattern or practice of conduct by PPB officers of using excessive force against individuals with actual or perceived mental illness through the following actions:
a. Encounters between PPB officers and individuals with actual or perceived mental illness result in a use of force when force is unnecessary, or in the use of a higher level of force than necessary or appropriate, up to and including deadly force. PPB officers have used excessive force against individuals who posed little or no threat and who could not, as a result of their mental illness, comply with officers’ commands. PPB officers employ practices that
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escalate the use of force where there were clear earlier junctures when the force could have been avoided or minimized.
b. PPB officers use ECWs in circumstances when ECW use is not justified or use ECWs multiple times when only a single use is justified in encounters with individuals with actual or perceived mental illness. PPB officers use multiple cycles of shock without waiting between cycles to allow the suspect to comply, and fail to utilize control tactics during ECW cycles to properly handcuff subjects without having to resort to repeated ECW shocks.
c. PPB officers use more force than necessary in effectuating arrests for low level offenses involving individuals who are or appear to be in mental health crisis.
17. PPB’s pattern or practice of using excessive force against people who have or are perceived to have mental illness, as described in paragraph 16 above, derives from systemic deficiencies in Defendant’s policies, training, supervisory oversight, and officer accountability measures.
IV. CAUSE OF ACTION 18. The United States re-alleges and incorporates by reference the allegations set forth above. 19. Defendant engages in law enforcement practices that result in excessive force against individuals with actual or perceived mental illness in Portland. 20. Defendant’s actions constitute a pattern or practice of conduct by law enforcement officers that deprives individuals of their rights, privileges, or immunities secured or protected by the Constitution (including the Fourth and Fourteenth Amendments) or the laws of the United States, in violation of 42 U.S.C. § 14141.
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21. Unless Defendant is restrained by this Court, PPB will continue to engage in the illegal conduct averred herein, or other similar illegal conduct, against the people of Portland.
V. PRAYER FOR RELIEF WHEREFORE, the United States prays that the Court: 22. Declare that Defendant has engaged in a pattern or practice of conduct that deprives individuals with actual or perceived mental illness of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States in violation of 42 U.S.C. § 14141; 23. Order the Defendant, its officers, agents, and employees to refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of conduct described herein; 24. Order the Defendant, its officers, agents, and employees to adopt and implement policies and procedures to remedy the pattern or practice of conduct described herein and to prevent PPB officers from depriving individuals who have or are perceived to have mental illness of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States; and
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25. Order such other appropriate relief as the interests of justice may require.

DATED this __17th__ day of ____December________, 2012

S. AMANDA MARSHALL United States Attorney District of Oregon
s/ Adrian L. Brown ADRIAN L. BROWN BILLY J. WILLIAMS Assistant U.S. Attorneys

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division JONATHAN M. SMITH Chief, Special Litigation Section
s/ Laura L. Coon LAURA L. COON Special Counsel s/ R. Jonas Geissler R. JONAS GEISSLER s/ Michelle A. Jones MICHELLE A. JONES Senior Trial Attorneys

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Case 3:12-cv-02265-SI Document 1-1 Filed 12/17/12 Page 1 of 2 Page ID#: 9

JS 44 (Rev. 09/11)

CIVIL COVER SHEET

The JS 44 civil coversheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States inSeptember 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

UNITED STATES OF AMERICA
(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

THE CITY OF PORTLAND

County of Residence of First Listed Defendant Multnomah

(IN U.S. PLAINTIFF CASES ONLY)

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Adrian L. Brown, US Attorney's Office, 1000 SW Third Avenue, Suite

James H. Van Dyke, City Attorney

600, Portland, OR 97204 (503) 727-1003

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

(For Diversity Cases Only)

PTF

Citizen of This State

’1

DEF ’1

and One Box for Defendant)

PTF DEF

Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

FORFEITURE/PENALTY

BANKRUPTCY

’ 110 Insurance

PERSONAL INJURY

’ 120 Marine

’ 310 Airplane

’ 130 Miller Act

’ 315 Airplane Product

’ 140 Negotiable Instrument

Liability

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

’ 151 Medicare Act

’ 330 Federal Employers’

’ 152 Recovery of Defaulted

Liability

Student Loans

’ 340 Marine

(Excl. Veterans)

’ 345 Marine Product

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 190 Other Contract

Product Liability

’ 195 Contract Product Liability ’ 360 Other Personal

’ 196 Franchise

Injury

’ 362 Personal Injury -

Med. Malpractice

REAL PROPERTY

CIVIL RIGHTS

’ 210 Land Condemnation

’ 440 Other Civil Rights

’ 220 Foreclosure

’ 441 Voting

’ 230 Rent Lease & Ejectment ’ 442 Employment

’ 240 Torts to Land

’ 443 Housing/

’ 245 Tort Product Liability

Accommodations

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities -

Employment

’ 446 Amer. w/Disabilities -

Other

’ 448 Education

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 365 Personal Injury -

of Property 21 USC 881 ’ 423 Withdrawal

Product Liability ’ 690 Other

28 USC 157

’ 367 Health Care/

Pharmaceutical

PROPERTY RIGHTS

Personal Injury

’ 820 Copyrights

Product Liability

’ 830 Patent

’ 368 Asbestos Personal

’ 840 Trademark

Injury Product

Liability

LABOR

SOCIAL SECURITY

PERSONAL PROPERTY ’ 710 Fair Labor Standards

’ 861 HIA (1395ff)

’ 370 Other Fraud

Act

’ 862 Black Lung (923)

’ 371 Truth in Lending ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g))

’ 380 Other Personal

’ 740 Railway Labor Act

’ 864 SSID Title XVI

Property Damage ’ 751 Family and Medical

’ 865 RSI (405(g))

’ 385 Property Damage

Leave Act

Product Liability

’ 790 Other Labor Litigation

’ 791 Empl. Ret. Inc.

PRISONER PETITIONS

Security Act

FEDERAL TAX SUITS

’ 510 Motions to Vacate

’ 870 Taxes (U.S. Plaintiff

Sentence

or Defendant)

Habeas Corpus:

’ 871 IRS—Third Party

’ 530 General

26 USC 7609

’ 535 Death Penalty

IMMIGRATION

’ 540 Mandamus & Other ’ 462 Naturalization Application

’ 550 Civil Rights

’ 463 Habeas Corpus -

’ 555 Prison Condition

Alien Detainee

’ 560 Civil Detainee -

(Prisoner Petition)

Conditions of

’ 465 Other Immigration

Confinement

Actions

’ 6 ’6
OTHER STATUTES
’ 375 False Claims Act ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act ’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes

V. ORIGIN
’ 1 Original Proceeding

(Place an “X” in One Box Only)

’ 2 Removed from

’ 3 Remanded from

State Court

Appellate Court

’ 4 Reinstated or Reopened

’

5

Transferred from another district

(specify)

’ 6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. Section 14141 VI. CAUSE OF ACTION Brief description of cause:
Violent Crime Control and Law Enforcement Act of 1994

VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE

DOCKET NUMBER

DATE
12/17/2012
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Adrian L. Brown

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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Save As...

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Case 3:12-cv-02265-SI Document 1-1 Filed 12/17/12 Page 2 of 2 Page ID#: 10

JS 44 Reverse (Rev. 09/11)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet andthe information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or dfeendant is an official within agovernment agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.CP. ., which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdicti on arises under the Constitution of the Unite d States, an amendment to the Constitution, an act of Congress or a treatyof the United States. In cases where the U.S. is aparty, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diveirtsy of citizenship was indicated above.Mark this section for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of s uit cannot be determined, be sure the cause of action, in S ection VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28U.S.C., Section 1441. When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.

VI. Cause of Action. Report the civil statute directlyrelated to the cause of action and give a brief description of the causeD. o not cite jurisdictionalstatutes

unless diversity.

Example:

U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

 
 Case 3:12-cv-02265-SI Document 32 Filed 02/19/13 Page 1 of 21 Page ID#: 638

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI OPINION AND ORDER

S. Amanda Marshall, United States Attorney; Adrian L. Brown and Billy J. Williams, Assistant United States Attorneys, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204-2902. Attorneys for Plaintiff.
Thomas E. Perez, Assistant Attorney General; Jonathan M. Smith, Chief; Laura Coon, Special Counsel; R. Jonas Geissler and Michelle Jones, Senior Trial Attorneys, Special Litigation Section; Civil Rights Division, United States Department of Justice, 50 Pennsylvania Avenue, NW, Washington, D.C. 20530. Attorneys for Plaintiff.
James Van Dyke, City Attorney; Ellen Osoinach, Deputy City Attorney, Office of City Attorney, 1221 S.W. Fourth Avenue, Room 430, Portland, OR 97204. Attorneys for Defendant.
Anil S. Karia, Tedesco Law Group, 3021 N.E. Broadway, Portland, OR 97232. Attorneys for Proposed Intervenor Portland Police Association.
J. Ashlee Albies, Creighton & Rose, PC, 500 Yamhill Plaza Building, 815 S.W. Second Avenue, Portland, OR 97204. Attorneys for Proposed Intervenor Albina Ministerial Alliance Coalition for Justice and Police Reform.
Page 1 – Opinion and Order

Case 3:12-cv-02265-SI Document 32 Filed 02/19/13 Page 2 of 21 Page ID#: 639
SIMON, District Judge. BACKGROUND
The United States of America has filed a complaint against the City of Portland, Oregon (the “City”), under the provisions of the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141 (“Section 14141”) in order to remedy an alleged pattern or practice of conduct by the Portland Police Bureau (“Police Bureau”) that subjects individuals with actual or perceived mental illness to excessive force, in violation of the Fourth and Fourteenth Amendments and other laws of the United States. At the same time the complaint was filed, the parties filed a Joint Motion to Enter Settlement Agreement and Conditional Dismissal of Action, requesting that the Court enter the Settlement Agreement negotiated between the parties and conditionally dismiss the action pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, subject to the Court retaining jurisdiction to enforce the Agreement.
The proposed Settlement Agreement contains detailed provisions concerning changes to Police Bureau’s policies and practices relating to: (1) use of force; (2) dealing with persons perceived as or actually suffering from mental illness or mental health crises; (3) dealing with persons suffering from addictions and behavioral health challenges; (4) crises intervention; (5) identifying at-risk employees; (6) officer accountability; (7) training; (8) supervision; (9) misconduct complaint intake, investigation, and adjudication; (10) transparency and oversight; and (11) community engagement. In addition, the proposed Settlement Agreement includes detailed provisions regarding the implementation and enforcement of the proposed Settlement Agreement.
On December 18, 2012, one day after the complaint was filed, the Portland Police Association (“PPA”) filed its motion to intervene. The PPA is a labor union that represents a
Page 2 – Opinion and Order

Case 3:12-cv-02265-SI Document 32 Filed 02/19/13 Page 3 of 21 Page ID#: 640
bargaining unit of police officers, sergeants, criminalists, and detectives employed by the City. The PPA and the City are parties to a collective bargaining agreement, effective July 1, 2010 through June 30, 2013, that governs the terms and conditions of employment for police officers in the bargaining unit (“Labor Agreement”). Under Oregon’s Public Employee Collective Bargaining Act, ORS 243.650-782 (“PECBA”), the City and the PPA must collectively bargain in good faith over the terms and conditions of employment for the members of the PPA.
On December 21, 2012, the Court held a status hearing and entered an order requiring any person wishing to intervene in this action under Rule 24 of the Federal Rules of Civil Procedure to file a motion to intervene not later than January 8, 2013, and any party opposing any such motion to file its opposition not later than January 22, 2013. On January 8, 2013, the Albina Ministerial Alliance Coalition for Justice and Police Reform (“AMA Coalition”) filed its motion to intervene. On January 22, 2013, the City and the United States filed their responses to the PPA and the AMA Coalition’s motions. The City supported limited intervention of both the AMA Coalition and the PPA for remedy purposes only, and the United States opposed any intervention by either the PPA or the AMA Coalition.
For the reasons set forth below, the Court grants the PPA’s motion to intervene as of right for remedy purposes, defers ruling on the PPA’s motion to intervene for liability purposes, denies the AMA Coalition’s motion to intervene for remedy purposes, defers ruling on the AMA Coalition’s motion to intervene for liability purposes, and grants the AMA Coalition enhanced amicus status for remedy purposes that allows the AMA Coalition “a seat at the table” for purposes of both the required Fairness Hearing and any negotiations among the parties with regard to modifying the proposed Settlement Agreement either before or after the Fairness Hearing.
Page 3 – Opinion and Order

Case 3:12-cv-02265-SI Document 32 Filed 02/19/13 Page 4 of 21 Page ID#: 641
INTERVENTION STANDARDS A. Intervention of Right
To intervene as of right under Rule 24(a)(2), an applicant must meet four requirements: (1) it has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant’s interest.
United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002) (quoting Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)) (quotations omitted). Alternatively, Rule 24(a)(1) provides that a court must permit intervention of right to anyone who “is given an unconditional right to intervene by a federal statute,” but no one claims any such a right in this action.
If a party seeking to intervene fails to meet any of these requirements, it cannot intervene as a matter of right. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). In evaluating whether these requirements have been, courts “are guided primarily by practical and equitable considerations” and generally construe the intervention rule “broadly in favor of proposed intervenors.” City of Los Angeles, 288 F.3d at 397 (quotations and citations omitted). “An applicant has a significant protectable interest in an action if (1) it asserts an interest that is protected under some law, and (2) there is a relationship between its legally protected interest and the plaintiff’s claims.” Id. at 398 (quoting Donnelly, 159 F.3d at 409). The “relationship” requirement is met if the resolution of the plaintiff’s claims will affect the applicant. Id. The “interest” requirement directs courts “to make a practical, threshold inquiry.” Id.
The considerations as to whether an applicant’s interests are adequately represented by the existing parties include:
(1) whether the interest of a present party is such that it will undoubtedly make all the intervenor’s arguments; (2) whether the Page 4 – Opinion and Order

Case 3:12-cv-02265-SI Document 32 Filed 02/19/13 Page 5 of 21 Page ID#: 642
present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect. The prospective intervenor bears the burden of demonstrating that existing parties do not adequately represent its interests. Id. (quotations and citation omitted). The burden on proposed intervenors in showing inadequate representation is minimal and is satisfied if the applicant shows that the representation of his interest “may be” inadequate. Arakaki, 324 F.3d at 1086 (quotations and citation omitted). When an applicant and an existing party “have the same ultimate objective, a presumption of adequacy of representation arises.” Id. When the government is acting on behalf of a constituency that it represents, in “the absence of a very compelling showing to the contrary, it will be presumed that [the government] adequately represents its citizens when the applicant shares the same interest.” Id. Differences in legal strategy do not normally justify intervention when the parties share the same ultimate objective. Id. “When a plaintiff’s action is narrowed by court order, the court may consider the case as restructured in ruling on a motion to intervene.” Arakaki, 324 F.3d at 1083. B. Permissive Intervention Applicants for permissive intervention under Rule 24(b) must meet three threshold requirements: “(1) an independent ground for jurisdiction; (2) a timely motion; (3) a common question of law and fact between the movant’s claim or defense and the main action.” Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011). The requirement of an independent jurisdictional ground, however, “does not apply to proposed intervenors in federalquestion cases when the proposed intervenor is not raising new claims.” Id. at 844. Even if an applicant satisfies the threshold requirements, a court still has discretion to deny permissive intervention. Donnelly, 159 F.3d at 412. In exercising this discretion, a court “must consider whether intervention will unduly delay the main action or will unfairly prejudice the existing parties.” Id. Page 5 – Opinion and Order

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ANALYSIS The Court established a deadline for timely motions to intervene. The PPA and the AMA Coalition filed their motions on or before that deadline. Thus, timeliness is not at issue. Further, no order has been entered by the Court narrowing the action, so the case has not been restructured, and intervention therefore must be evaluated based on the allegations of the complaint. Arakaki, 324 F.3d at 1083. The remaining factors required for intervention are discussed below. A. Portland Police Association’s Motion to Intervene 1. Intervention of Right The PPA argues that it is entitled to intervene as of right in the remedy phase. The PPA asserts that: (1) it has a significant protectable interest because the terms of the proposed Settlement Agreement conflict with provisions of the Labor Agreement between the City and the PPA and infringe on the PPA’s state-law bargaining rights; (2) the disposition of the action may impair or impede the PPA’s continuing ability to protect and enforce its contractual rights with the City; and (3) the City does not and cannot adequately represent the PPA’s interest because the City and the PPA are antagonists in the collective bargaining process. PPA Br. at 7, 25-30. The City concedes that under Rule 24’s broad policy in favor of intervention and the Ninth Circuit’s City of Los Angeles opinion, the PPA is entitled to intervention as of right in the remedy phase of this litigation. City Br. at 2. The United States admits that the PPA has a protectable interest in the remedy phase of the litigation, but argues that the PPA’s interest is implicated in only “a small number of the Agreement’s provisions” and that the proposed Settlement Agreement does not impair that interest because it preserves the PPA’s ability to collectively bargain, grieve, and arbitrate pursuant to the Labor Agreement. United States Br. at 10-11. Page 6 – Opinion and Order

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a. Significant Protectable Interest A significant protectable interest requires an interest that is protected under some law and a relationship between that legally protected interest and the plaintiff’s claims. City of Los Angeles, 288 F.3d at 398. The PPA has state-law rights to negotiate about the terms and conditions of its members’ employment with the Police Bureau and to rely on the Labor Agreement that resulted from those negotiations. See ORS 243.650-782. As the Ninth Circuit has unambiguously held: “Except as part of court-ordered relief after a judicial determination of liability, an employer cannot unilaterally change a collective bargaining agreement as a means of settling a dispute over whether the employer has engaged in constitutional violations.” City of Los Angeles, 288 F.3d at 400 (citing Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-30 (1986), and W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 771 (1983)). Thus, if the proposed Settlement Agreement contains – or even might contain – provisions that contradict the terms of the Labor Agreement, then the PPA has a protectable interest. Id. Even if it is disputed whether the proposed Settlement Agreement conflicts with the Labor Agreement, the PPA would still have a protectable interest. Id. (noting that to the extent it is disputed whether the decree at issue conflicted with the collective bargaining agreement, the union still had a protectable interest and the “right to present its views on the subject to the district court and have them fully considered in conjunction with the district court’s decision to approve the consent decree”). The PPA identifies numerous clauses of the proposed Settlement Agreement that it contends conflict with the Labor Agreement. PPA Br. at 10-23. Both the City and the United States concede that the PPA has a protectable interest, although the United States asserts that only a few provisions of the proposed Settlement Agreement conflict with the Labor Agreement.
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United States Br. at 10-11. The fact that the United States concedes that “a small number” of the provisions in the proposed Settlement Agreement conflict with the Labor Agreement, even though it disputes that others conflict, supports a finding that the PPA has a protectable interest. As long as the proposed Settlement Agreement reasonably might contain provisions that conflict with the Labor Agreement or if it is reasonably disputed whether certain provisions will or may conflict with the Labor Agreement, that is enough to establish a protectable interest. City of Los Angeles, 288 F.3d at 400. Thus, for purposes of intervention, the PPA has shown that it has a protectable interest in the remedy phase of this litigation.
b. Impediment or Impairment of Protectable Interest The United States argues that although the proposed Settlement Agreement contains some provisions that impact the conditions of employment of PPA members, those provisions were crafted in a manner that permits the City to engage in collective bargaining and thereby protects the collective bargaining rights of PPA members. Thus, argues the United States, the protectable interest of the PPA is not impeded or impaired by the proposed Settlement Agreement. United States Br. at 11. The United States acknowledges in the proposed Settlement Agreement that certain provisions may require changes to the Labor Agreement. Dkt. 4, Ex. 1, ¶ 180. The Police Bureau and the City agree in the proposed Settlement Agreement to notify the United States if any term of the agreement becomes subject to collective bargaining. Id. ¶189. The proposed Settlement Agreement does not specifically address how the United States and the City will resolve any issues that arise if the changes mandated by the Settlement Agreement are subject to collective bargaining and cannot be collectively bargained or resolved between the City and the PPA. The proposed Settlement Agreement does, however, broadly grant the United States “the right to seek
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enforcement of the provisions of this Agreement if [the United States] determines that [the Police Bureau] or the City have failed to fully comply with any provision of this Agreement.” Id. ¶ 179. The procedure established in the Settlement Agreement for enforcing such concerns is to first engage in mediation and then file a motion with this Court. Id. ¶¶ 185-186. Thus, under the proposed Settlement Agreement, if certain terms of the Settlement Agreement are subject to collective bargaining and if the City cannot successfully bargain those terms with the PPA and if the City cannot then fully implement the Settlement Agreement, the United States could pursue enforcement of those terms ultimately by seeking injunctive relief from this Court.
This is similar to the City of Los Angeles case, where certain terms of the consent decree at issue expressly protected the collective bargaining rights of the police union under California law and the collective bargaining agreement between the City of Los Angeles and the union representing Los Angeles police officers, but the implementation process in the consent decree included provisions allowing for relief by the district court if the collective bargaining process impaired the City’s ability to implement the provisions of the consent decree. City of Los Angeles, 288 F.3d at 400-401. The Ninth Circuit found that the consent decree gave the district court power to override the union’s bargaining rights. Id. at 401. The United States argued in that case that the union’s rights were not impaired, for purposes of analyzing intervention, because it was speculative whether the parties would be unable to agree on what provisions were subject to collective bargaining or whether there would be disputes over provisions that would require resolution by the court. The Ninth Circuit rejected that argument, holding that the issue on intervention is whether the proposed decree “may” impair rights, not that it necessarily would impair them. Id.
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Here, unlike in City of Los Angeles, the proposed Settlement Agreement does not explain precisely how the City or the United States will handle any unresolved collective bargaining issues affecting implementation of the proposed Settlement Agreement. But the broad enforcement provisions in the proposed Settlement Agreement still allow the United States to seek judicial enforcement in this Court of any provision of the proposed Settlement Agreement (after mediation), without providing any exception for those provisions that implicate the PPA’s collective bargaining rights. Thus, although it is not as evident as in the City of Los Angeles consent decree, the result here is still be the same—if there are terms that require collective bargaining, implementation of those terms may end up before this Court in a motion by the United States for injunctive relief. Accordingly, the proposed Settlement Agreement may impair or impede the PPA’s protectable interest. City of Los Angeles, 288 F.3d at 401.
c. Adequacy of Representation by Existing Parties There is a general presumption of adequate representation when the government is acting on behalf of a constituency that it represents. Arakaki, 324 F.3d at 1086. Such a presumption does not apply, however, when the governmental body acts as an employer, such as the City is to the members of the PPA, or when the parties “are antagonists in the collective bargaining process.” City of Los Angeles, 288 F.3d at 401-2. Here, the City and the members of the PPA are in an employment relationship. In addition, the City and the PPA are antagonists in the collective bargaining process. Further, based on the legal memoranda already submitted in connection with the PPA’s motion to intervene, there may be a “marked divergence of positions concerning key elements” of the proposed Settlement Agreement. Id. at 402. Thus, the presumption of adequate representation does not apply here, and the PPA has sufficiently made the “minimal” showing that representation by the City “may not” adequately represent the PPA’s interests. Arakaki, 324 F.3d at 1086. Page 10 – Opinion and Order

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2. Permissive Intervention Because the Court concludes that the PPA is entitled to intervention of right, the PPA’s alternative request for permissive intervention need not be addressed. B. The AMA Coalition’s Motion to Intervene 1. Intervention of Right
a. Significant Protectable Interest The AMA Coalition was founded in 2003 and is a coalition of faith-based and community organizations “dedicated to bringing justice to the citizens of Portland and reforming the Portland Police Bureau.” AMA Coalition Br. at 1-2. The AMA Coalition’s member organizations include the Albina Ministerial Alliance, Portland Copwatch, Disability Rights Oregon, the Mental Health Association of Portland, Oregon Action, and the Portland Chapter of the National Lawyers Guild. The AMA Coalition’s police reform work has addressed issues of mental health as well as issues of race. The AMA Coalition argues that it has a significant protectable interest as an organization with a long history of advocating for police reform in Portland. AMA Coalition Br. at 10-11. The Ninth Circuit has noted, without deciding, that community organizations in a similar situation may have a protectable interest analogous to the interest organizations have that seek to challenge measures that the organization helped to create. City of Los Angeles, 288 F.3d at 402 n.5. The Ninth Circuit has also found, however, that organizations that have an “undifferentiated, generalized interest” in the outcome of an ongoing action or organizations that have an interest comparable to a substantial portion of the population do not have a legally protectable interest for purposes of intervention. Southern California Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (citing Public Serv. Co. of N.H. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) and Westlands Water Dist. v. U.S., 700 F.2d 561, 563 (9th Cir. 1983)). Page 11 – Opinion and Order

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This Court need not reach the issue of whether the AMA Coalition’s interest falls into the former category or the latter because, even assuming the AMA Coalition does have a protectable interest in this litigation, that interest is not impaired and is adequately represented by the United States. Because all of the elements for intervention must be satisfied to support a right to intervene, the AMA Coalition is not entitled to intervention as of right. Arakaki, 324 F.3d at 1083.
b. Impediment or Impairment of Protectable Interest The AMA Coalition argues that its interest in “proposed changes to [Police Bureau] practices related to use of force and race relations in Portland have not come to fruition,” that while it could pursue litigation to address its concerns, such litigation is not practical, and that its interest is, therefore, impaired. AMA Coalition Br. at 12. The Court recognizes, appreciates, and respects the work the AMA Coalition has done and acknowledges that the AMA Coalition is interested in the resolution of this case and in remedying the alleged excessive use of force by the Police Bureau toward persons with actual or perceived mental illness and persons of color. To the extent that the AMA Coalition has a protectable interest in this lawsuit, however, that interest is limited to one that is related to the claim brought by the United States in the complaint. See e.g., Arakaki, 324 F.3d at 1083 (a party seeking to intervene must have a significantly protectable interest relating to the property or transaction that is the subject of the action). Intervention is not “intended to allow the creation of whole new lawsuits by the intervenors.” Donnelly, 159 F.3d at 412. The complaint in this case addresses only alleged unconstitutional practices relating to perceived or actual mental illness and does not contain any allegations or claim of such practices based on race. Thus, the AMA Coalition’s interest in this case is limited to remedying unconstitutional practices relating to mental health.
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The AMA Coalition’s desire to intervene to address the issue of unconstitutional practices based on race in a case that involves only alleged unconstitutional practices based on mental health is analogous to the case of male workers seeking to intervene to bring genderbased discrimination claims in a case involving female workers’ claims of a hostile work environment, which was rejected by the Ninth Circuit. See Donnelly, 159 F.3d at 409. In Donnelly, the Ninth Circuit held that although both sets of claims were covered by Title VII and both were alleging discrimination against the same defendant, that was insufficient for intervention purposes because claims of discrimination by male employees are unrelated to the hostile work environment claim asserted by female employees. Id. Similarly, here, the AMA Coalition’s claim of unconstitutional practices based on race are not related to the United States’ claim of unconstitutional practices based on mental health and thus cannot serve as a basis for intervention. The issue for intervention is whether this lawsuit impairs the AMA Coalition’s interest in remedying the alleged use of excessive force toward persons perceived as suffering, or actually suffering, from mental illness or mental health crises. The AMA Coalition has not demonstrated that this lawsuit impairs that interest.
Instead, the AMA Coalition argues that race is already included in the current lawsuit because the United States raised claims involving race in the U.S. Department of Justice’s Letter of Findings. AMA Coalition Reply Br. at 3. The Letter of Findings, however, does not constitute or establish the claims in this lawsuit. The complaint is the operative document that establishes the scope and specific claims of this action, and the complaint here does not contain any allegations relating to excessive force based on race.
The AMA Coalition also argues that because the proposed Settlement Agreement contains a requirement that the Police Bureau document demographic data regarding the subjects
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of police encounters and because that demographic data will include racial identification, the proposed Settlement Agreement seeks to address concerns of excessive force based on race. AMA Coalition Reply Br. at 4-5. The fact that the proposed Settlement Agreement tasks the Police Bureau with documenting general demographic data on police subjects, however, is insufficient to expand the scope of this lawsuit to include claims of excessive force based on race. No such claims are alleged in the complaint filed by the United States.
Moreover, even if the AMA Coalition had a protectable interest in more broadly preventing alleged unconstitutional practices by the Police Bureau, the proposed Settlement Agreement does not prevent or impair the AMA Coalition, or any other community organization or person, from initiating a suit against the City, the Police Bureau, or any officer for engaging in such conduct. See City of Los Angeles, 288 F.3d at 402. Thus, even if the AMA Coalition’s broad interest in all alleged unconstitutional practices by the Police Bureau were a protectable interest for purposes of intervention in this case, that interest is not impaired by this lawsuit. Id.
c. Adequacy of Representation by Existing Parties When the government is acting on behalf of a constituency it represents that shares the same interest, there is a strong presumption that the government adequately represents its constituents for intervention purposes. Arakaki, 324 F.3d at 1086. This presumption can only be overcome by a very compelling showing to the contrary. Id. The United States and the AMA Coalition share the same interest in remedying the alleged pattern and practice by the Police Bureau of using excessive force in interactions with persons perceived as or actually suffering from mental illness or mental health crises. For those purposes, the AMA Coalition and its members are the constituency that the United States is seeking to protect. See, e.g., City of Los Angeles, 288 F.3d at 402. Where the AMA Coalition’s
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interest appears to diverge from the interest of the United States is that the AMA Coalition also seeks to remedy what it perceives as a pattern and practice by the Police Bureau of using excessive force in interactions with persons of color. But there is no such allegation or claim contained in the complaint and, thus, that issue is not before the Court.
Concerning the issues in the complaint relevant to intervention in this lawsuit, the United States has spent significant resources and efforts investigating the problem, evaluating and negotiating a remedy, drafting a detailed proposed Settlement Agreement, pursuing legal action, and defending its remedy in court. The AMA Coalition may not agree with the limited scope of the complaint or with the terms of the proposed Settlement Agreement, but differences in legal strategy do not normally justify intervention. Arakaki, 324 F.3d at 1086. Thus, the AMA Coalition has not met its burden of a making a “very compelling” showing that the United States will not adequately represent the interests of the AMA Coaltion in remedying the specific allegations actually contained in the complaint.
2. Permissive Intervention To qualify for permissive intervention, the AMA Coalition must prove that its claim shares a common question of law or fact with the main action and that the Court has an independent basis for jurisdiction over the AMA Coalition’s claim to the extent that the AMA Coalition raises any new claims. Donnelly, 159 F.3d at 412; Freedom Religion Found., 644 F.3d at 844. The only claim asserted by the AMA Coalition in its intervenor-plaintiff complaint is the same claim asserted by the United States, a claim for violations of Section 14141. That statute, however, does not provide for a private cause of action. The only party that may bring a claim under Section 14141 is the Attorney General, bringing claims on or behalf of the United States. 42 U.S.C. §14141(b). Thus, the AMA Coalition has not asserted a cognizable claim on which
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this Court can base permissive intervention. The AMA Coalition anticipates this deficiency and asks the Court to allow the AMA Coalition to amend its proposed complaint in intervention to assert a claim under 42 U.S.C. § 1983. AMA Coalition’s Reply Br. at 12 n.3.
Even if the AMA Coalition had asserted a cognizable claim, including one under Section 1983, the Court would nevertheless exercise its discretion to deny the AMA Coalition’s application for permissive intervention under the facts currently before the Court. Donnelly, 159 F.3d at 412. If an applicant meets the requirements for permissive intervention, the Court “may also consider other factors in the exercise of its discretion, including the nature and extent of intervenors’ interest and whether the intervenors’ interests are adequately represented by other parties.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009) (quotations and citation omitted). As discussed in the analysis of intervention of right, to the extent that the AMA Coalition’s interest in the claim pleaded in this case relates to mental health, the AMA Coalition has the same interest as the United States, and the United States adequately represents that interest. Moreover, the AMA Coalition’s participation as an enhanced amicus curiae, see discussion below, will allow the AMA Coalition to apprise the Court of the AMA Coalition’s positions, arguments, concerns, and perspective on whether the proposed Settlement Agreement is fair, adequate, and reasonable.
The Court must also, in exercising its discretion, consider whether intervention would unduly delay the main action or prejudice the existing parties. Donnelly, 159 F.3d at 412. The AMA Coalition’s primary purpose in intervening appears to be to add into the case the issue of alleged unconstitutional practices by the Police Bureau relating to race. This would impermissibly expand the scope of the case as the United States, as Plaintiff, has chosen to frame it. As stated, if the AMA Coalition, or its members or anyone else, wants to bring a lawsuit
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challenging the Police Bureau’s practices with regard to race, including a lawsuit under Section 1983, any such group or person may do so.
3. Enhanced Amicus Curiae Status for the AMA Coalition The Court recognizes that the AMA Coalition has dedicated significant time and resources over many years to identifying possible issues and solutions concerning the Police Bureau and its alleged practice of using excessive force. The AMA Coalition has extensive community outreach, a deep understanding of the issues, including those raised in this lawsuit, and an important perspective to bring to the remedy phase of this action. The Court believes that the AMA Coalition can provide a valuable voice at the table during these proceedings. Accordingly, the AMA Coalition is granted enhanced amicus curiae status, as follows: (1) the AMA Coalition shall have the opportunity to present any briefing requested by the Court in the same manner as the parties; (2) the AMA Coalition shall have the opportunity to participate in any oral arguments to the same extent as the parties; (3) the AMA Coalition may present its arguments from counsel table along with the parties; (4) the AMA Coalition may participate in the Fairness Hearing to the same extent as the parties; and (5) to the extent that the United States, the City, and the PPA may participate in mediated settlement discussions under the authority of the Court and a court-appointed special master for settlement purposes, see discussion below, the AMA Coalition shall be invited and allowed to participate in those negotiations. In other words, in terms of having its issues and concerns noted and considered during the remedy phase of this lawsuit, the AMA Coalition shall have the same opportunity to provide insights and recommendations as the parties. Indeed, from this point forward and until further Court Order, the United States, the City, the PPA, and the AMA Coalition shall be collectively referred to in this lawsuit as the “Parties,” and the Court will refer to each individually as a “Party” (even though the AMA Coalition, to be precise, is only an enhanced amicus). Page 17 – Opinion and Order

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DIRECTIONS FOR GOING FORWARD The PPA argues that the proposed Settlement Agreement prejudices the PPA’s legal rights under the Labor Agreement and the collective bargaining laws of Oregon. If the PPA is correct, that might have significant implications for whether the Court could approve the Settlement Agreement as currently proposed. As discussed above, the Ninth Circuit has stated:
Except as part of court-ordered relief after a judicial determination of liability, an employer cannot unilaterally change a collective bargaining agreement as a means of settling a dispute over whether the employer has engaged in constitutional violations. City of Los Angeles, 288 F.3d at 400 (citing Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-30 (1986), and W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 771 (1983)). Thus, if the proposed Settlement Agreement between the United States and the City would constitute a material change in the Labor Agreement between the City and the PPA, it would appear that the Court might not have the legal authority to approve such an agreement over the objection of the PPA. That is not to say, however, that the PPA may block such a consent decree merely by withholding its consent, especially if either the Court or the Parties have resolved the issues presented in the preceding paragraph. In fact, the PPA may not do that. See Local No. 93, 478 U.S. at 529-30 (“While an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.”); see also So. Cal. Edison Co. v. Lynch, 307 F.3d 794, 806-07 (9th Cir. 2002) (holding that an intervenor’s consent “was not a necessary precursor to the district court’s accepting the Stipulated Judgment”). Thus, before moving forward with a Fairness Hearing to determine, after receiving public comment and participation, whether the proposed Settlement Agreement, as currently proposed,
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is “fundamentally fair, adequate, and reasonable,” there are at least two preliminary questions that need to be resolved: (1) the Court must determine whether the proposed Settlement Agreement, in fact, prejudices the legal rights of the PPA under the Labor Agreement; and (2) if the proposed Settlement Agreement does prejudice the legal rights of the PPA under the Labor Agreement, the Court must then determine whether that conclusion necessarily precludes the authority of the Court to approve the proposed Settlement Agreement without a prior judicial determination of liability (either by trial or by summary judgment). In addition to the Supreme Court’s decision in Local No. 93, the following cases may shed light on this second question: Johnson v. Lodge No. 93 of the Fraternal Order of Police, 393 F.3d 1096 (10th Cir. 2004); United States v. City of Hialeah, 140 F.3d 968 (11th Cir. 1998); EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1506 (9th Cir. 1990); Kirkland v. The New York State Dept. of Corr. Servs., 711 F.2d 1117 (2nd Cir. 1983); and United States v. City of Miami, 664 F.2d 435 (former 5th Cir. 1981) (en banc). Briefing on both of these issues from the United States, the City, the PPA, and the AMA Coalition could be quite helpful to the Court.
It might not be necessary, however, for the Court to reach these issues. If the parties were to modify the proposed Settlement Agreement in such a way that all would agree that an amended proposed Settlement Agreement would not prejudice the legal rights of the PPA under the Labor Agreement, then there would be no need for the Court to resolve such counter-factual questions, and the Court could proceed promptly to the Fairness Hearing. Whether that can or should be done is for the parties to determine, at least in the first instance.
To assist the Parties in determining whether they may wish to amend the proposed Settlement Agreement before the Court convenes a Fairness Hearing, the Court requests that the Parties (i.e. the United States, the City, the PPA, and the AMA Coalition) agree upon a court-
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authorized mediator (or a “Special Master for Settlement Purposes”) and that this be done and reported to the Court not later than February 28, 2013. If the Parties cannot agree on a specific mediator, then each Party must submit to the Court three names of proposed mediators who would be acceptable to that Party, also not later than February 28, 2013. In addition to mediation to determine whether the parties wish to submit an amended proposed Settlement Agreement addressing the issues raised by the PPA before a Fairness Hearing is held, the Parties should also consider including in such a mediation any issues raised by the AMA Coalition that are within the scope of the complaint filed by the United States in this action.
On Tuesday, March 5, 2013, at 12:15 p.m., the Court will hold a brief status conference to address any remaining issues concerning mediation, including confirming the appointment of the mediator, if applicable.
If there is going to be a mediation, the Court directs that it be completed within 45 days, or not later than April 5, 2013, and that the Parties file a Joint Status Report with the Court not later than April 8, 2013. If there is not going to be a mediation or if there is a mediation but it is unsuccessful, then any Party wanting to be heard on either of the two questions identified above in this section must submit its brief not later than April 19, 2013 (i.e. simultaneous briefing). Any Party that submits an opening brief by April 19, 2013, may then have until May 3, 2013, in which to respond to the arguments submitted in any other Party’s opening brief (i.e. simultaneous responses). The Court will hold oral argument on this issue, if necessary, on Thursday, May 23, 2013, at 9:00 a.m.
CONCLUSION Portland Police Association’s Motion to Intervene (Dkt. 7) is GRANTED IN PART AND DEFERRED IN PART. The PPA is permitted to intervene at this time only in the “remedy
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phase” of this litigation, with leave to renew its Motion to Intervene in a “liability phase” if such a phase becomes necessary. The AMA Coalition’s Motion to Intervene (Dkt. 19) is DENIED IN PART AND DEFERRED IN PART, with leave to renew its Motion to Intervene (and file an amended complaint in intervention) in a “liability phase” if such a phase becomes necessary. Although the AMA Coalition may not formally “intervene” in the remedy phase,” the Court GRANTS the AMA Coalition enhanced amicus curiae status as set forth in this Opinion and Order. The Court further Orders that the United States, the City, the PPA, and the AMA Coalition provide the several reports and briefing, if necessary, as directed in this Opinion and Order. The next status conference will be held on Tuesday, March 5, 2013, at 12:15.
IT IS SO ORDERED. DATED this 19th day of February, 2013.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:12-cv-02265-SI Document 4-1 Filed 12/17/12 Page 1 of 77 Page ID#: 34
S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian. brown@usdo j. gov BILLY J. WILLIAMS, OSB # 90136 Bill. Williams({J)usdoj.gov Assistant United States Attorneys United States Attorney's Office District of Oregon I000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
THOMAS E. PEREZ Assistant Attorney General JONATHAN M. SMITH Chief LAURA COON Special Counsel R. JONAS GEISSLER jonas.geissler@usdoj .gov MICHELLE JONES michelle.jones2@usdoj.gov Senior Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 50 Pennsylvania Ave., NW Washington, D.C. 20530 Telephone: (202) 514-6255 Facsimile: (202) 514-4883
Attorneys for Plaintiff, United States
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TABLE OF CONTENTS INTRODUCTION......................................................................................................................... 3 I. GENERAL PROVISIONS ............................................................................................... 5 II. DEFINITIONS .................................................................................................................. 7 III. USE OF FORCE ............................................................................................................. 16
A. Use of Force Policy............................................................................................... 17 B. Compliance Audits Related to Use of Force......................................................... 22 IV. TRAINING ...................................................................................................................... 28 V. COMMUNITY-BASED MENTAL HEALTH SERVICES........................................ 32 VI. CRISIS INTERVENTION ............................................................................................. 35 A. Addictions and Behavioral Health Unit and Advisory Committee ...................... 36 B. Continuation of C-I Program ................................................................................ 37 C. Establishing “Memphis Model” Crisis Intervention Team................................... 38 D. Mobile Crisis Prevention Team ............................................................................ 40 E. Service Coordination Team .................................................................................. 41 F. BOEC .................................................................................................................... 41 VII. EMPLOYEE INFORMATION SYSTEM ................................................................... 41 VIII. OFFICER ACCOUNTABILITY .................................................................................. 43 A. Investigation Timeframe ....................................................................................... 43 B. On Scene Public Safety Statements and Interviews ............................................. 44 C. Conduct of IA Investigations ................................................................................ 45 D. CRC Appeals ........................................................................................................ 49 E. Discipline .............................................................................................................. 49 F. Communication with Complainant and Transparency ......................................... 50 IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD ............................................................................ 50 X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT ............................... 59
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UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI
SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2)

INTRODUCTION The United States and the City of Portland (“City”) (collectively “the Parties”) recognize that the vast majority of the City’s police officers are honorable law enforcement professionals who risk their physical safety and well-being for the public good. The Parties enter into this Agreement with the goal of ensuring that the Portland Police Bureau (“PPB”) delivers police services to the people of Portland in a manner that effectively supports officer and public safety, and complies with the Constitution and laws of the United States. Specifically, this Agreement is targeted to strengthen initiatives already begun by PPB to ensure that encounters between police and persons with perceived or actual mental illness, or experiencing a mental health crisis, do not result in unnecessary or excessive force. The Parties recognize there has been an accelerating movement toward a model of police management that relies on both existing and still-developing management and Page 3 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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monitoring tools and systems. This model requires both vision and fiscal commitment, and is necessary to legitimate policing. The United States recognizes that PPB has endeavored to adopt components of modern management despite being a lean organization, and greatly appreciates the City’s commitment, in this agreement, to provide PPB the fiscal support necessary to rapidly and fully implement a complete stateof-the-art management and accountability system. The Parties further recognize that the ability of police officers to protect themselves and the community they serve is largely dependent on the quality of the relationship they have with that community. Public and officer safety, constitutional policing, and the community’s trust in its police force are, thus, interdependent. The full and sustained implementation of this Agreement is intended to protect the constitutional rights of all members of the community, continuously improve the safety and security of the people of Portland, keep PPB employees safe, and increase public confidence in PPB, all in a cost-effective, timely, and collaborative manner. The United States commends the City for the steps it already has taken to implement measures to effectuate these goals.
To fully achieve these goals, this Agreement requires the City and PPB to further revise or, where needed, adopt new policies, training, supervision, and practices in the following areas: the use of force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement.
This Agreement further requires that the City and PPB put in place more effective systems of oversight and self-correction that will identify and correct problems before
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they develop into patterns or practices of unconstitutional conduct and/or erode

community trust.

This Agreement further identifies measures, to be met within fixed periods of

time, that will assist the Parties and the community in determining whether: (1) the City

has changed its procedures and taken the actions listed in this agreement; (2) community

trust in PPB has increased; and (3) the improvements will be sustainable.

For these reasons, and noting the general principle that settlements are to be

encouraged, particularly settlements between government entities, the Parties agree to

implement this Agreement under the following terms and conditions.

I.

GENERAL PROVISIONS

1.

The United States has filed a complaint in the Federal District Court for

the District of Oregon in Portland, Oregon asserting that the City has engaged in a pattern

and practice of constitutional violations pursuant to the authority granted to United States

Department of Justice (“DOJ”) under 42 U.S.C. § 14141 to seek declaratory or equitable

relief to remedy a pattern or practice of conduct by law enforcement officers that deprives

individuals of rights, privileges, or immunities secured by the Constitution or federal law.

The City expressly denies that the allegations of the complaint are true.

2.

The Parties agree that nothing in this Agreement shall be construed as an

admission of wrongdoing by the City or evidence of liability under any federal, state, or

municipal law. Upon execution of this Agreement by both Parties, the United States

agrees to conditionally dismiss the complaint it filed with prejudice, subject to the Court

retaining jurisdiction to enforce the Agreement, followed by final dismissal with

prejudice upon performance of this Agreement.

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3.

This Agreement shall constitute the entire integrated agreement of the

Parties. No prior drafts or prior or contemporaneous communications, oral or written,

shall be relevant or admissible for purposes of determining the meaning of any provisions

herein in any litigation or any other proceeding. If, in the course of interpreting this

Agreement, there is an ambiguity that cannot be resolved by the Parties or in mediation,

evidence including the Parties’ course of dealing and parol evidence may be used.

4.

This Agreement is binding upon all Parties hereto, by and through their

officials, agents, employees, and successors. If the City establishes or reorganizes a

government agency or entity whose function includes overseeing, regulating, accrediting,

investigating, or otherwise reviewing the operations of PPB or any aspect thereof, the

City agrees to ensure these functions and entities are consistent with the terms of this

Agreement and shall incorporate the terms of this Agreement into the oversight,

regulatory, accreditation, investigation, or review functions of the government agency or

entity as necessary to ensure consistency.

5.

This Agreement is enforceable only by the Parties. No person or entity is,

or is intended to be, a third-party beneficiary of the provisions of this Agreement for

purposes of any civil, criminal, or administrative action, and accordingly, no person or

entity may assert any claim or right as a beneficiary or protected class under this

Agreement. The Parties agree to defend the terms of this Agreement should they be

challenged in this or any other forum.

6.

This Agreement is not intended to impair or expand the right of any

person or organization seeking relief against the City, PPB, or any officer or employee

thereof, for their conduct or the conduct of PPB officers; accordingly, it does not alter

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legal standards governing any such claims by third parties, including those arising from

city, state, or federal law. This Agreement does not expand, nor will it be construed to

expand access to any City, PPB, or DOJ document, except as expressly provided by this

Agreement, by persons or entities other than DOJ, the City, and PPB. All federal and

state laws governing the confidentiality or public access to such documents are

unaffected by the terms of this Agreement.

7.

The City shall be responsible for providing necessary support and

resources to enable PPB to fulfill its obligations under this Agreement. The

improvements outlined in this Agreement will require the dedication of additional funds

and personnel.

8.

The purpose of this Agreement is to ensure that the City and PPB, by and

through their officials, agents, employees, and successors, undertake the actions required

by the Agreement, which in turn will resolve the concerns expressed by the United States

in its complaint. The United States greatly appreciates the effort and expertise the current

PPB leadership team has contributed to the investigation, agreement, and ongoing reform

processes. The United States feels that continuity of management and effort is essential

for timely compliance with the terms of this Agreement.

II.

DEFINITIONS

Unless otherwise noted, the following terms and definitions shall apply to this

Agreement:

9.

“Chief” means the Chief of Police of the Portland Police Bureau or his or

her authorized designee.

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10. “City” means the City of Portland, including its agents, officers, and

employees in their official capacity.

11.

“C-I-Team” stands for Crisis Intervention Team.

12. “C-I-Training” stands for Crisis Intervention Training, which is training

on how to respond to persons in behavioral or mental health crisis, including persons

under the influence of drugs or alcohol. Officers who receive such training are “C-I-

Trained.”

13. “City Auditor” is the City Auditor, whose duties regarding independent

police oversight are governed by Portland City Code Chapter 3.21.

14. “COCL” refers to the Compliance Officer Community Liaison, discussed

in detail in Section X.

15. “Complainant” means any person, including a PPB officer or employee,

who makes a complaint against PPB or a sworn officer.

16. “Complaint” means any complaint made to the City by a member of the

public, a PPB officer, or a civilian PPB employee of alleged misconduct by a sworn PPB

employee.

17. Computer-Assisted Dispatch (“CAD”) is a computerized method of

dispatching police officers on a service call. It can also be used to send messages to the

dispatcher and store and retrieve data (i.e., radio logs, field interviews, schedules, etc.).

PPB Manual 612.00.

18. “CRC” is the Citizen Review Committee, whose duties are governed by

Portland City Code Section 3.21.080.

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19. “Critical firearm discharge” means each discharge of a firearm by a PPB officer. This term includes discharges at persons where no one is struck. This term is not intended to include discharges at the range or in training or negligent discharges not intended as an application of force, which are still subject to administrative investigation.
20. “Day” means a calendar day. 21. “Demographic category” means to the extent such information is currently collected by PPB, age, race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, source of income, or gender identity. 22. “Discipline” means a personnel action for violation of an established law, regulation, rule, or PPB policy, including written reprimand, suspension, demotion, or dismissal. 23. “DOJ” refers jointly to the Civil Rights Division of the United States Department of Justice and the United States Attorney’s Office for the District of Oregon. 24. “ECW” means Electronic Control Weapon, a weapon, including Tasers, designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and overrides the subject’s voluntary motor responses. 25. “ECW application” means the contact and delivery of electrical impulse to a subject with an ECW. 26. “Effective Date” means the date this Agreement is entered by the Court. 27. “EIS” means the Employee Information System as provided in PPB Manual 345.00. 28. “Ensure” means that the City and PPB are using objectively good faith efforts to achieve the outcome desired. Page 9 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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29. “Exigent circumstances” means circumstances in which a reasonable

person would believe that imminent and serious bodily harm to a person or persons is

about to occur.

30. “Firearm” is any instrument capable of discharging ammunition as defined

in PPB Manual 1020.00.

31. “Force” means any physical coercion used to effect, influence or persuade

an individual to comply with an order from an officer. The term shall not include the

ordinary handcuffing of an individual who does not resist.

32. “IA” means the Internal Affairs unit of PPB’s Professional Standards

Division (“PSD”).

33.

“Implement” or “implementation” means the development or putting into

place of a policy or procedure, including the appropriate training of all relevant

personnel, and the consistent and verified performance of that policy or procedure in

actual practice through the regular use of audit tools.

34. “Including” means “including, but not limited to.”

35. “Inspector” is a command position in the PSD responsible for reviewing

all uses of force and making recommendations regarding improvements to systems of

accountability in relation to force management.

36. “IPR” means the Independent Police Review Division, an independent,

impartial office, readily available to the public, responsible to the City Auditor,

empowered to act on complaints against sworn PPB members for alleged misconduct,

and recommend appropriate changes of PPB policies and procedures toward the goals of

safeguarding the rights of persons and of promoting higher standards of competency,

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efficiency, and justice in the provision of community policing services, governed by Portland City Code Chapter 3.21.
37. “Less-lethal” force means a force application that is not intended or expected to cause death or serious injury and that is commonly understood to have less potential for causing death or serious injury than conventional, more lethal police tactics. Nonetheless, use of less-lethal force can result in death or serious injury.
38. “Lethal force” means any use of force likely to cause death or serious physical injury, including the use of a firearm, carotid neck hold, or strike to the head, neck, or throat with a hard object.
39. “Line Investigation” or “Directive 940.00 Investigation” means the use of force investigation conducted pursuant to PPB Directive 940.00.
40. “Mental Health Crisis” means an incident in which someone with an actual or perceived mental illness is experiencing intense feelings of personal distress (e.g., anxiety, depression, anger, fear, panic, hopelessness), obvious changes in functioning (e.g., neglect of personal hygiene, unusual behavior) and/or catastrophic life events (e.g., disruptions in personal relationships, support systems or living arrangements; loss of autonomy or parental rights; victimization or natural disasters), which may, but not necessarily, result in an upward trajectory of intensity culminating in thoughts or acts that are dangerous to self and/or others.
41. “Mental Illness” is a medical condition that disrupts an individual’s thinking, perception, mood, and/or ability to relate to others such that daily functioning and coping with the ordinary demands of life are diminished. Mental illness includes, but is not limited to, serious mental illnesses such as major depression, schizophrenia, bipolar Page 11 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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disorder, obsessive compulsive disorder (“OCD”), panic disorder, posttraumatic stress

disorder (“PTSD”), and borderline personality disorder. Mental illness includes

individuals with dual diagnosis of mental illness and another condition, such as drug

and/or alcohol addiction.

42. “Misconduct” means conduct by a sworn officer that violates PPB

regulations or orders, or other standards of conduct required of City employees.

43. “Misconduct complaint” means any allegation of improper conduct by a

sworn officer, whether the complaint alleges corruption or other criminal misconduct; a

violation of law; or a violation of PPB policy, procedure, regulations, orders, or other

standards of conduct required of City employees including, but not limited to, the

improper use of force. This definition is not intended to create a right of appeal to the

CRC for lethal force or in-custody death cases.

44. “Mobile Crisis Prevention Team” (formerly Mobile Crisis Unit) means the

team of a PPB patrol officer and mental health case worker who are specifically detailed

to conduct outreach and response to persons with known mental illness or experiencing

an actual or perceived mental health crisis, with the goal of intervening with individuals

before a crisis exists and to link the individual with community mental health services.

45.

“Non-disciplinary corrective action” refers to action other than discipline

taken by a PPB supervisor to enable or encourage an officer to improve his or her

performance.

46. “Passive resistance” means non-compliance with officer commands that is

non-violent and does not pose an immediate threat to the officer or the public.

47. “Personnel” means PPB officers and employees.

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48. “Police officer” or “officer” means any law enforcement agent employed

by or volunteering for PPB, including supervisors, reserve officers, and cadets.

49. Police Review Board (“PRB”) is an advisory body to the Chief governed

by Portland City Code § 3.20.140. The PRB makes recommendations as to findings and

proposed officer discipline to the Chief.

50. “Policies and procedures” means regulations or directives, regardless of

the name, describing the duties, functions, and obligations of PPB officers and/or

employees, and providing specific direction in how to fulfill those duties, functions, or

obligations.

51. “PPB Manual” refers to PPB’s Policy and Procedure Manual, revised

January 2009, and includes the most current edition and supplements thereto.

52. “PPB unit” or “unit” means any designated organization of officers within

PPB, including precincts and specialized units.

53. Portland Police Data System (“PPDS”) is PPB’s records management

system that integrates officers’ access to other agency systems such as LEDS, NCIC/III,

DMV, DA-Crimes, ESWIS and OJIN. See, e.g., PPB Manual 1226.00.

54.

“Precinct” refers to one of the service areas of PPB, which together cover

the entire geographic area of the City of Portland. Each precinct is led by a precinct

commander.

55. “Probable cause” means that there is a substantial objective basis for

believing that, more likely than not, an offense has been committed and a person to be

arrested has committed it.

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56. “PSD” means the Professional Standards Division, the PPB unit charged with, among other tasks, conducting or overseeing all internal and administrative investigations of PPB officers, agents, and employees arising from complaints, whose current duties are governed by PPB Manual 330.00.
57. “Qualified Mental Health Professional” means an individual who has, at a minimum, a masters-level education and training in psychiatry, psychology, counseling, social work, or psychiatric nursing, and is currently licensed by the State of Oregon to deliver those mental health services he or she has undertaken to provide.
58. “Serious Use of Force” means: (1) all uses of force by a PPB officer that reasonably appear to create or do create a substantial risk of death, serious disfigurement, disability, or impairment of the functioning of any body part or organ; (2) all critical firearm discharges by a PPB officer; (3) all uses of force by a PPB officer resulting in a significant injury, including a broken bone, an injury requiring hospitalization, or an injury deemed to be serious by an officer’s supervisor; (4) all head, neck, and throat strikes with an object or carotid neck holds; (5) force used upon juveniles known or reasonably assumed to be under 15 and females known or reasonably assumed to be pregnant; (6) all uses of force by a PPB officer resulting in a loss of consciousness; (7) more than two applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, regardless of whether the applications are by the same or different officers, and regardless of whether the ECW application is longer than 15 seconds, whether continuous or consecutive; (8) any strike, blow, kick, ECW application, or similar use of force against a handcuffed, otherwise
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restrained, under control, or in custody subject with or without injury; and (9) any use of

force referred by an officer’s supervisor to IA that IA deems serious.

59. “Shall” means a mandatory duty.

60.

“Supervisor” means a sworn PPB employee at the rank of sergeant or

above (or anyone acting in those capacities) and non-sworn personnel with oversight

responsibility for other officers.

61. “Supported by evidence” means the standard of proof applied in CRC

appeals pursuant to Portland City Code Section 3.21.160. A finding regarding a

complaint is “supported by the evidence” when a reasonable person could make the

finding regarding a complaint in light of the evidence, whether or not the reviewing body

agrees with the finding. The CRC decides whether the recommended finding is

supported by the evidence using a reasonable person standard, that is, the CRC decides

whether City decision makers could have reached the conclusion they reached based on

the evidence developed by the investigation.

62. “Training” means any adult-learning methods that incorporate role-

playing scenarios and interactive exercises that instruct officers about how to exercise

their discretion at an administrative level, as well as traditional lecture formats. Training

also includes testing and/or writings that indicate that the officer comprehends the

material taught.

63. “Use of Force” means any physical coercion used to effect, influence, or

persuade an individual to comply with an order from an officer, above unresisted

handcuffing, including actively pointing a firearm at a person.

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64. “Use of force that could result in criminal charges” means that use of force

that a reasonable and trained supervisor could conclude would result in criminal charges

due to the apparent circumstances, such as: (a) the level of force used as compared to the

offense committed or resistance encountered; (b) material discrepancies between the

force actually used and the use of force as described by the officer; or (c) the nature of the

injuries.

65. “Welfare Check” means a response by PPB to a call for service that is

unrelated to an allegation of criminal conduct, but is instead to determine whether a

person requires assistance for a medical or mental health crisis.

III.

USE OF FORCE

PPB shall revise its existing use of force policy and force reporting requirements

to ensure that all force, particularly force involving persons with actual or perceived

mental illness: (a) is used only in accordance with the Constitution and laws of the

United States; (b) is no greater than necessary to accomplish a lawful objective; (c) is

properly documented, reported, and accounted for; and (d) is properly investigated,

reviewed, evaluated, and, if necessary, remedied. PPB shall attempt to avoid or minimize

the use of force against individuals in perceived behavioral or mental health crisis, or

those with mental illness and direct such individuals to the appropriate services where

possible. In addition, PPB shall ensure that officers use non-force and verbal techniques

to effect compliance with police orders whenever feasible, especially in the course of

conducting welfare checks or effecting arrests for minor offenses or for persons whom

officers have reason to believe are experiencing a mental health crisis; de-escalate the use

of force at the earliest possible moment; only resort to those use of force weapons,

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including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function. To achieve these outcomes, PPB shall implement the requirements set out below. A. Use of Force Policy
66. PPB shall maintain the following principles in its existing use of force policies:
a. PPB shall use only the force reasonably necessary under the totality of circumstances to lawfully perform its duties and to resolve confrontations effectively and safely; and
b. PPB expects officers to develop and display, over the course of their practice of law enforcement, the skills and abilities that allow them to regularly resolve confrontations without resorting to force or the least amount of appropriate force.
67. PPB shall add to its use of force policy and procedures the following use of force principles:
a. Officers shall use disengagement and de-escalation techniques, when possible, and/or call in specialized units when practical, in order to reduce the need for force and increase officer and civilian safety;
b. In determining whether to use force, officers will take into account all information, when feasible, including behavior, reports, and
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known history as conveyed to or learned by the officer by any means, indicating that a person has, or is perceived to have, mental illness; c. The use of force shall be de-escalated as resistance decreases and the amount of force used, including the number of officers who use force, shall de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force; and d. Objectively unreasonable uses of force shall result in corrective action and/or discipline, up to and including termination. 1. Electronic Control Weapons 68. PPB shall revise PPB Directive 1051.00 regarding Taser, Less-Lethal Weapon System to include the following principles: a. Prohibition against the use of ECWs for pain compliance against those suffering from mental illness or emotional crisis except in exigent circumstances, and then only to avoid the use of a higher level of force; b. Unless it would present a danger to the officer or others, that officers shall issue a verbal warning, or attempt to utilize hand signals where there is a language barrier or the subject is hearing impaired, prior to deploying their ECW; c. Officers shall follow protocols developed by PPB in conjunction with medical professionals on their responsibilities following ECW use; Page 18 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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d. Only one ECW at a time may be used on a subject, intentionally,

except where lethal force would be permitted;

e. After one standard ECW cycle (5 seconds), the officer shall

reevaluate the situation to determine if subsequent cycles are

necessary, including waiting for a reasonable amount of time to

allow the subject to comply with the warning. Officers shall

describe and explain the reasonableness of each ECW cycle in

their use of force reports;

f. Officers shall make every reasonable effort to attempt handcuffing

during and between each ECW cycle. Officers should avoid

deployments of more than three ECW cycles unless exigent

circumstances warrant use;

g. ECWs shall not be used on handcuffed or otherwise restrained

persons, unless doing so is necessary to prevent them from causing

serious physical injury to themselves or others, or if lesser attempts

of control have been ineffective and/or to avoid greater application

of use of force; and

h. Officers receive annual ECW in service training including

proficiency and policy changes, if any.

2. Use of Force Reporting Policy and Use of Force Report

69.

PPB shall revise its policies related to use of force reporting, as necessary,

to require that:

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a. All PPB officers that use force, including supervisory officers, draft timely use of force reports that include sufficient information to facilitate a thorough review of the incident in question by supervisory officers; and
b. All officers involved or witnesses to a use of force provide a full and candid account to supervisors.
3. Use of Force Supervisory Investigations and Reports 70. PPB shall continue enforcement of Directive 940.00, which requires supervisors who receive notification of a force event to respond to the scene, conduct an administrative review and investigation of the use of force, document their findings in an After Action Report and forward their report through the chain of command. PPB shall revise Directive 940.00 to further require that supervisory officers:
a. Complete After Action Reports within 72 hours of the force event; b. Immediately notify his or her shift supervisor and PSD regarding
all officer’s Serious Use of Force, any Use of Force against persons who have actual or perceived mental illness, or any suspected misconduct. Where the supervisor suspects possible criminal conduct, the supervisor shall notify the PPB Detective Division. Where there is no misconduct, supervisors also shall determine whether additional training or counseling is warranted. PPB shall then provide such counseling or training consistent with this Agreement;
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c. Where necessary, ensure that the subject receives medical attention from an appropriate medical provider; and
d. Interview officers individually and not in groups. 71. PPB shall maintain adequate patrol supervision staffing, which at a minimum, means that PPB and the City shall maintain its current sergeant staffing level, including the September 2012 addition of 15 sergeants. 72. PPB shall develop a supervisor investigation checklist to ensure that supervisors carry out these force investigation responsibilities. PPB shall review and revise the adequacy of this checklist regularly, at least annually. 73. PPB shall revise its policies concerning chain of command reviews of After Action Reports, as necessary, to require that:
a. EIS tracks all Directive 940.00 comments, findings and corrections;
b. All supervisors in the chain of command are subject to and receive corrective action or discipline for the accuracy and completeness of After Action Reports completed by supervisors under their command;
c. All supervisors in the chain of command are accountable for inadequate reports and analysis;
d. A supervisor receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position when he or she repeatedly conducts deficient investigations. Where a shift commander, or precinct commander, repeatedly
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permits deficient investigations, the shift commander, or precinct commander, receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position; e. When, after investigation, a use of force is found to be out of policy, PPB shall take appropriate corrective action consistent with the Accountability provisions of this Agreement; f. Where the use of force indicates policy, training, tactical, or equipment concerns, the immediate supervisor shall notify the Inspector and the Chief, who shall ensure that PPB timely conducts necessary training and that PPB timely resolves policy, tactical, or equipment concerns; and g. The Chief or designee, as well as PSD, has discretion to re-assign a use of force investigation to the Detective Division or any PPB supervisor. B. Compliance Audits Related to Use of Force 74. In consultation with the COCL, the Inspector, as part of PPB’s quarterly review of force, will audit force reports and Directive 940.00 Investigation Reports to ensure that: a. With respect to use of force generally: i. reports describe the mental health information available to officers and the role of that information in their decision making; ii. officers do not use force against people who engage in passive resistance that does not impede a lawful objective; Page 22 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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iii. when resistance decreases, officers de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force;
iv. officers call in specialty units in accordance with procedure; v. officers routinely procure medical care at the earliest available
opportunity when a subject is injured during a force event; and vi. officers consistently choose options reasonably calculated to
establish or maintain control with the least amount of appropriate force. b. With respect to ECW usages: i. ECW deployment data and Directive 940.00 reports are consistent, as determined by random and directed audits. Discrepancies within the audit should be appropriately investigated and addressed; ii. officers evaluate the reasonableness and need for each ECW cycle and justify each cycle; when this standard is not met, this agreement requires supervisor correction; iii. officers are universally diligent in attempting to use hands-on control when practical during ECW cycles rather than waiting for compliance; and iv. officers do not attempt to use ECW to achieve pain compliance against subjects who are unable to respond rationally unless doing
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so is reasonably calculated to prevent the use of a higher level of force. c. With respect to use of force reporting, the reports: i. are completed as soon as possible after the force incident occurs, but no later than the timeframes required in policy; ii. include a detailed description of the unique characteristics of the event, using common everyday language, sufficient to allow supervisors to accurately evaluate the quality of the officer’s decision making and performance; iii. include a decision point description of the force decision making; iv. include a detailed description of the force used, to include descriptive information regarding the use of any weapon; v. include a description of any apparent injury to the suspect, any complaint of injury, or the absence of injury (including information regarding any medical aid or on-scene medical evaluation provided); vi. include the reason for the initial police presence; vii. include a description of the level of resistance encountered by each officer that led to each separate use of force and, if applicable, injury; viii. include a description of why de-escalation techniques were not used or whether they were effective;
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ix. include whether the individual was known by the officer to be mentally ill or in mental health crisis;
x. include a general description of force an officer observes another officer apply; and
xi. demonstrate that officers consistently make diligent efforts to document witness observations and explain when circumstances prevent them from identifying witnesses or obtaining contact information. Reports will include all available identifying information for anyone who refuses to provide a statement.
75. In consultation with the COCL, the Inspector shall audit force reports and Directive 940.00 investigations to determine whether supervisors consistently:
a. Complete a Supervisor’s After Action Report within 72 hour s of notification;
b. Review all use of force reports to ensure they include the information required by this Agreement and PPB policy;
c. Evaluate the weight of the evidence; d. Use a “decision-point” approach to analyze each use of force; e. Determine whether the officer’s actions appear consistent with
PPB policy, this Agreement, and best practices; f. Determine whether there was legal justification for the original
stop and/or detention;
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g. Assess the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options;
h. Determine whether additional training or counseling is warranted; i. Implement corrective action whenever there are material omissions
or inaccuracies in the officers’ use of force report, and for failing to report a use of force, whether applied or observed; j. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, or poor tactical decisions in EIS; k. Notify PSD and the shift supervisor of every incident involving an officer’s Serious Use of Force, and any Use of Force that could appear to a reasonable supervisor to constitute misconduct; and l. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear to a supervisor that an officer engaged in criminal conduct. 76. In consultation with the COCL, the Inspector shall conduct a quarterly analysis of force data and supervisors’ Directive 940.00 reports designed to: a. Determine if significant trends exist; b. Determine if there is variation in force practice away from PPB policy in any unit; c. Determine if any officer, PPB unit, or group of officers is using force differently or at a different rate than others, determine the Page 26 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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reason for any difference and correct or duplicate elsewhere, as appropriate; d. Identify and correct deficiencies revealed by the analysis; and e. Document the Inspector’s findings in an annual public report. 77. In consultation with the COCL, the Inspector shall audit the adequacy of chain of command reviews of After Action Reports using the following performance standards to ensure that all supervisors in the chain of command: a. Review Directive 940.00 findings using a preponderance of the evidence standard; b. Review Directive 940.00 reports to ensure completeness and order additional investigation, when necessary; c. Modify findings as appropriate and document modifications; d. Order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings and counsel the investigator; e. Document any training deficiencies, policy deficiencies, or poor tactical decisions, ensure a supervisor discusses poor tactical decisions with the officer and ensure the discussion is documented in EIS; f. Suspend an investigation immediately and notify the branch Assistant Chief, the Director of PSD, and the Detectives Division whenever the investigating supervisor, shift commander or Division Page 27 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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commander finds evidence of apparent criminal conduct by a PPB

officer; and

g. Reports a matter to PSD for review and investigation whenever an

investigating supervisor, shift commander or precinct commander

finds evidence of apparent misconduct by a PPB officer or

employee.

IV.

TRAINING

78. All aspects of PPB training shall reflect and instill agency expectations

that officers are committed to the constitutional rights of the individuals who have or are

perceived to have mental illness whom they encounter, and employ strategies to build

community partnerships to effectively increase public trust and safety. To achieve these

outcomes, PPB shall implement the requirements below.

79. The Training Division shall review and update PPB’s training plan

annually. To inform these revisions, the Training Division shall conduct a needs

assessment and modify this assessment annually, taking into consideration: (a) trends in

hazards officers are encountering in performing their duties; (b) analysis of officer safety

issues; (c) misconduct complaints; (d) problematic uses of force; (e) input from members

at all levels of PPB; (f) input from the community; (g) concerns reflected in court

decisions; (h) research reflecting best practices; (i) the latest in law enforcement trends;

(j) individual precinct needs; and (k) any changes to Oregon or federal law or PPB

policy.

80. Within 180 days of the Effective Date, PPB shall develop and implement a

process that provides for the collection, analysis, and review of data regarding the

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effectiveness of training for the purpose of improving future instruction, course quality, and curriculum. These evaluations shall measure and document student satisfaction with the training received; student learning as a result of training; and the extent to which program graduates are applying the knowledge and skills acquired in training to their jobs. This audit shall be reported to the Training Division Manager and shall include student evaluations of the program and the instructor.
81. PPB shall ensure that the Training Division is electronically tracking, maintaining, and reporting complete and accurate records of current curricula, lesson plans, training delivered, attendance records, and other training materials in a central, commonly-accessible, and organized file system. Each officer’s immediate supervisor shall review the database for the officers under his/her command at least semi-annually.
82. PPB shall report training delivered and received semi-annually to the Assistant Chief of Operations and, during the pendency of this Agreement, to DOJ.
83. PPB shall institute guidelines to govern its selection of officers that serve as trainers and shall ensure that those officers do not have a history of using excessive force. The trainer selection guidelines shall prohibit the selection of officers who have been subject to disciplinary action based upon the use of force or mistreatment of people with mental illness within the three (3) preceding years, or twice in the preceding five (5) years, and will take into account if a civil judgment has been rendered against the City in the last five (5) years based on the officer’s use of force.
84. All training that PPB provides shall conform to PPB’s current policies at the time of training. PPB shall train all officers on the Agreement’s requirements during the next in-service training scheduled. Page 29 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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a. With respect to patrol officers, PPB shall: i. increase the use of role-playing scenarios and interactive exercises that illustrate proper use of force decision making, specifically including interactions with people who have or are perceived to have mental illness, including training officers on the importance and impact of ethical decision making and peer intervention; ii. emphasize the use of integrated de-escalation techniques, when appropriate, that encourage officers to make arrests without using force;
iii. continue to provide training regarding an officer’s duty to procure medical care whenever a subject is injured during a force event, and enhance and revise training as necessary to ensure that PPB’s training in this regard is proactive and responsive to deficiencies identified by the Inspector, if any;
iv. continue to train on proactive problem solving and to utilize, when appropriate, disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, requesting specialized units, including CIT officers and mental health professionals, or delaying arrest;
v. describe situations in which a force event could lead to potential civil or criminal liability; and
vi. continue to train officers to avoid using profanity, prohibit using derogatory/demeaning labels, and also avoiding terms not currently
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appropriate for person-center communication, such as the term “mentals,” in all work-related settings and communications, as well as when interacting with the public. b. With respect to supervisors, provide additional training on how to: i. conduct use of force investigations, including the supervisory investigatory responsibilities identified in Section III.A.3; ii. evaluate officer performance as part of PPB’s annual performance evaluation system; and iii. foster positive career development and impose appropriate disciplinary sanctions and non-disciplinary corrective action. 85. In consultation with the COCL, the Inspector shall audit the training program using the following performance standards to ensure that PPB does the following: a. Conducts a comprehensive needs assessment annually; b. Creates a Training Strategic Plan annually; c. Within 180 days of the Effective Date, develops and implements a process for evaluation of the effectiveness of training; d. Maintains accurate records of Training delivered, including substance and attendance; e. Makes Training Records accessible to the Director of Services, Assistant Chief of Operations, and DOJ; f. Trains Officers, Supervisors, and Commanders on areas specific to their responsibilities; and Page 31 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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g. Ensures that sworn PPB members are provided a copy of all PPB

directives and policies issued pursuant to this Agreement, and sign

a statement acknowledging that they have received, read, and had

an opportunity to ask questions about the directives and/or policies,

within 30 days of the release of the policy.

86.

In consultation with the COCL, the Inspector shall gather and present data

and analysis on a quarterly basis regarding patterns and trends in officers’ uses of force to

the Chief, the PPB Training Division, and to the Training Advisory Council. The

Training Division and Training Advisory Council shall make written recommendations to

the Chief regarding proposed changes in policy, training, and/or evaluations based on the

data presented. The Inspector shall also, in coordination with the COCL and PSD,

identify problematic use of force patterns and training deficiencies. The Chief’s Office

shall assess all use of force patterns identified by the Training Division and/or Training

Advisory Council and timely implement necessary remedial training to address

deficiencies so identified.

87. Training Advisory Council meetings will be open to the public unless the

matter under discussion is confidential or raises public safety concerns, as determined by

the Chief.

V.

COMMUNITY-BASED MENTAL HEALTH SERVICES

88. The absence of a comprehensive community mental health infrastructure

often shifts to law enforcement agencies throughout Oregon the burden of being first

responders to individuals in mental health crisis. Under a separate agreement, the United

States is working with State of Oregon officials in a constructive, collaborative manner to

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address the gaps in state mental health infrastructure. The state-wide implementation of an improved, effective community-based mental health infrastructure should benefit law enforcement agencies across the State, as well as people with mental illness. The United States acknowledges that this Agreement only legally binds the City to take action. Nonetheless, in addition to the City, the United States expects the City’s partners to help remedy the lack of community-based addiction and mental health services to Medicaid clients and uninsured area residents. The City’s partners in the provision of communitybased addiction and mental health services include: the State of Oregon Health Authority, area Community Care Organizations (“CCOs”), Multnomah County, local hospitals, health insurance providers, commercial health providers, and existing NonGovernmental Organizations (“NGOs”) such as community-based mental health providers, and other stakeholders.
89. The United States expects that the local CCOs will establish, by mid-2013, one or more drop-off center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. All such drop off/walk in centers should focus care plans on appropriate discharge and communitybased treatment options, including assertive community treatment teams, rather than unnecessary hospitalization.
90. The CCOs will immediately create addictions and mental health-focused subcommittee(s), which will include representatives from PPB’s Addictions and Behavioral Health Unit (“ABHU”), the ABHU Advisory Board, Portland Fire and Rescue, Bureau of Emergency Communications (“BOEC”) and other City staff. These
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committees will pursue immediate and long-term improvements to the behavioral health care system. Initial improvements include:
a. Increased sharing of information, subject to lawful disclosure, between agencies and organizations including BOEC, Multnomah County, and health care providers to create an information exchange among first responders and providers to better serve those suffering from mental illness;
b. Creation of rapid-access clinics so those in crisis have access to timely medication management appointments;
c. Enhancing access to primary care providers to shift low-tomoderate acuity patients to primary care programs creating more capacity for acute patients in existing outpatient crisis mental health systems;
d. Expanding the options and available capacity for BOEC Operators to appropriately divert calls to qualified civilian mental health providers as first responders;
e. Addressing issues of unmet needs identified by Safer PDX and its community partners;
f. Expanding and strengthening networks of Peer-Mediated services to:
i. develop a referral guide delineating these services and locations and assist with accessing information;
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ii. better educate the community of the viability of these services as

alternative first engagement sites/programs for those having

difficulty engaging with “professional driven” services;

iii. expand peer services connected to peer supports in the community

for inpatient psychiatric units (including Emergency Departments)

and in the community;

iv. add peer guides to work alongside Emergency Department guides

for those patients with behavioral health issues entering the

Emergency Department; and

v. evaluate opportunities to expand use of peers to coordinate with

PPB ABHU (as described herein) and function as a link with

impacted individuals; and

g. pursue tele-psychiatry (a provision of mental health care by video

conferencing) as a way for first responders to take advantage of

existing IT infrastructure to provide direct care or provider-

evaluation supporting the provision of appropriate services to an

individual in crisis.

VI.

CRISIS INTERVENTION

The City acknowledges that the community of consumers of mental health

services, and their families and advocates, have an interest in interactions between PPB

and people experiencing mental health symptoms or crises. The PPB will add new

capacity and expertise to deal with persons perceived or actually suffering from mental

illness, or experiencing a mental health crisis as required by this Agreement. Despite the

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critical gaps in the state and local mental health system, the City and PPB must be equipped to interact with people in mental health crisis without resorting to unnecessary or excessive force. A. Addictions and Behavioral Health Unit and Advisory Committee
91. In order to facilitate PPB’s successful interactions with mental health consumers and improve public safety, within 60 days of the Effective Date, PPB shall develop an Addictions and Behavioral Health Unit (“ABHU”) within the PPB. PPB shall assign command-level personnel of at least the rank of Lieutenant to manage the ABHU. ABHU shall oversee and coordinate PPB’s Crisis Intervention Team (“C-I Team”), Mobile Crisis Prevention Team (“MCPT”), and Service Coordination Team (“SCT”), as set forth in this Agreement.
92. ABHU will manage the sharing and utilization of data that is subject to lawful disclosure between PPB and Multnomah County, or its successor. PPB will use such data to decrease law enforcement interactions or mitigate the potential uses of force in law enforcement interactions with consumers of mental health services.
93. ABHU shall track outcome data generated through the C-I Team, MCPT, and SCT, to: (a) develop new response strategies for repeat calls for service; (b) identify training needs; identify and propose solutions to systemic issues that impede PPB’s ability to provide an appropriate response to a behavioral crisis event; and (c) identify officers’ performance warranting commendation or correction.
94. Within 90 days of the Effective Date, PPB shall also establish an ABHU Advisory Committee. The ABHU Advisory Committee shall include representation from: PPB command leadership, CIT, MCPT, and SCT; BOEC; civilian leadership of Page 36 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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the City government; and shall seek to include representation from: the Multnomah County’s Sheriff’s Office; Oregon State Department of Health and Human Services; advocacy groups for consumers of mental health services; mental health service providers; coordinated care organizations; and persons with lived experience with mental health services.
95. The ABHU Advisory Committee shall provide guidance to assist the City and PPB in the development and expansion of C-I Team, MCPT, SCT, BOEC Crisis Triage, and utilization of community-based mental health services. The ABHU Advisory Committee shall analyze and recommend appropriate changes to policies, procedures, and training methods regarding police contact with persons who may be mentally ill or experiencing a mental health crisis, with the goal of de-escalating the potential for violent encounters. The ABHU Advisory Committee shall report its recommendations to the ABHU Lieutenant, PPB Compliance Coordinator, COCL (as described herein), and the BOEC User Board.
96. Within 240 days of the Effective Date of this Agreement, the ABHU Advisory Committee will provide status reports on the implementation of the ABHU and BOEC Crisis Triage, and identify recommendations for improvement, if necessary. PPB will utilize the ABHU Advisory Committee’s recommendations in determining appropriate changes to systems, policies, and staffing. B. Continuation of C-I Program
97. PPB provides C-I Training to all its officers. C-I is a core competency skill for all sworn police officers in the City. PPB shall continue to train all officers on C-I. Page 37 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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98. PPB agrees to continue to require a minimum of 40 hours of C-I training to all officers before officers are permitted to assume any independent patrol or callresponse duties. Additionally, PPB shall include C-I refresher training for all officers as an integral part of PPB’s on-going annual officer training. PPB’s Training Division, in consultation with ABHU Advisory Committee, shall determine the subjects and scope of initial and refresher C-I training for all officers. C. Establishing “Memphis Model” Crisis Intervention Team
99. Within 120 days of the Effective Date, PPB shall establish a Memphis Model Crisis Intervention team (“C-I Team”).
100. PPB’s C-I Team shall be comprised of officers who volunteer for assignment to the C-I Team. The number of C-I Team members will be driven by the demand for C-I Team services, with an initial goal of 60-80 volunteer, qualified officers.
101. No officers may participate in C-I Team if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of C-I Team service, or during C-I Team service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the C-I Team.
102. PPB shall specially train each C-I Team member before such member may be utilized for C-I Team operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for C-I Team members consistent with the Memphis Model.
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103. C-I Team members will retain their normal duties until dispatched for use as a C-I Team. BOEC or PPB may dispatch C-I Team members to the scene of a crisis event.
104. PPB will highlight the work of the C-I Team to increase awareness of the effectiveness of its work.
105. For each crisis event to which a C-I Team is dispatched, the C-I Team member shall gather data that ABHU shall utilize to track and report data on public safety system interactions with individuals with perceived or actual mental illness or who are in crisis. These data shall include:
a. Date, time, and location of the incident; b. Subject’s name, age, gender, and address; c. Whether the subject was armed, and the type of weapon; d. Whether the subject is a U.S. military veteran; e. Complainant’s name and address; f. Name and DPSST number of the officer on the scene; g. Whether a supervisor responded to the scene; h. Techniques or equipment used; i. Any injuries to officers, subject, or others; j. Disposition; k. Whether a mental health professional responded to the scene; l. Whether a mental health professional contacted the subject as a
result of the call; and
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m. A brief narrative of the event (if not included in any other document).
D. Mobile Crisis Prevention Team 106. PPB currently has an MCPT comprised of a two-person team, one sworn
officer and one contractor who is a qualified mental health professional. Within 120 days of the Effective Date, City shall expand MCPT to provide one MCPT car per PPB precinct.
107. Each MCPT car shall be staffed by one sworn PPB officer and one qualified mental health professional. MCPT shall be the fulltime assignment of each such officer.
108. No officers may participate in MCPT if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of MCPT service, or during MCPT service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the MCPT.
109. PPB shall specially train each MCPT member before such member may be utilized for MCPT operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for MCPT members.
110. MCPT shall utilize C-I Team data to proactively address mental health service, in part, by connecting service recipients with service providers.
111. Within 180 days of the Effective Date, PPB, with the advice of the ABHU Advisory Committee, shall develop policies and procedures for the transfer of custody or voluntary referral of individuals between PPB, receiving facilities, and local mental Page 40 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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health and social service agencies. These policies and procedures shall clearly describe

the roles and responsibilities of these entities and of MCPT officers in the process.

E. Service Coordination Team

112. The Service Coordination Team (“SCT”), or its successor, shall serve to

facilitate the provision of services to individuals who interact with PPB that also have a

criminal record, addictions, and highly acute mental or physical health service needs.

F. BOEC

113. Within 120 days of the Effective Date, BOEC and PPB, with the advice of

the ABHU Advisory Committee, shall complete policies and procedures to triage calls

related to mental health issues, including changes to protocols for assigning calls to

Multnomah County Crisis Call Center, and adding new or revised policies and protocols

to assign calls to the PPB ABHU or directly to NGOs or community-based mental health

professionals.

114. Within 180 days of the Effective Date, the City will complete training of

all BOEC Dispatchers in Crisis Triage. The City, with the advice of the ABHU Advisory

Committee, shall develop ongoing training for BOEC Dispatchers.

115. Within 180 days of the Effective Date, the City shall ensure Crisis Triage

is fully operational to include the implementation of the policies and procedures

developed pursuant to the above paragraph and operation by trained staff.

VII.

EMPLOYEE INFORMATION SYSTEM

116. PPB has an existing Employee Information System (“EIS”) to identify

employees and design assistance strategies to address specific issues affecting the

employee. See PPB Manual 345.00. PPB agrees to enhance its EIS to more effectively

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identify at-risk employees, supervisors and teams to address potentially problematic trends in a timely fashion. Accordingly, within 90 days of the Effective Date, PPB shall:
a. Require that commanders and supervisors conduct prompt reviews of EIS records of employees under their supervision and document the review has occurred in the EIS performance tracker;
b. Require that commanders and supervisors promptly conduct reviews of EIS for officers new to their command and document the review has occurred in the EIS performance tracker; and
c. Require that EIS staff regularly conduct data analysis of units and supervisors to identify and compare patterns of activity.
117. PPB agrees to collect data necessary to conduct these analyses at supervisor- and team-levels.
118. PPB shall continue to use existing thresholds, and specifically continue to include the following thresholds to trigger case management reviews:
a. Any officer who has used force in 20% of his or her arrests in the past six months; and
b. Any officer who has used force three times more than the average number of uses of force compared with other officers on the same shift.
119. Within 90 days of the Effective Date, PPB shall add one additional threshold to trigger case management review any officer who has three uses of force in a one-month period.
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120. Within 90 days of the Effective Date, PPB shall PPB identify and train a second EIS administrator. This individual may be assigned to other tasks within the Professional Standards Division or as otherwise needed.
VIII. OFFICER ACCOUNTABILITY PPB and the City shall ensure that all complaints regarding officer conduct are fairly addressed; that all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. The City and PPB seek to retain and strengthen the citizen and civilian employee input mechanisms that already exist in the PPB’s misconduct investigations by retaining and enhancing IPR and CRC as provided in this Agreement. A. Investigation Timeframe 121. PPB and the City shall complete all administrative investigations of officer misconduct within one-hundred eighty (180) days of receipt of a complaint of misconduct, or discovery of misconduct by other means. For the purposes of this provision, completion of administrative investigations includes all steps from intake of allegations through approval of recommended findings by the Chief, including appeals, if any, to CRC. Appeals to CRC shall be resolved within 21 days. 122. PPB shall conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a
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concurrent criminal investigation, or as otherwise provided by law, or as necessary to meet the CRC or PRB recommendation to further investigate.
123. If PPB is unable to meet these timeframe targets, it shall undertake and provide to DOJ a written review of the IA process, to identify the source of the delays and implement an action plan for reducing them. B. On Scene Public Safety Statements and Interviews
124. Within 90 days of the Effective Date, the City and PPB shall review its protocols for compelled statements to PSD and revise as appropriate so that it complies with applicable law and current professional standards, pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). The City will submit the revised protocol to DOJ for review and approval. Within 45 days of obtaining DOJ’s approval, PPB shall ensure that all officers are advised on the revised protocol.
125. Separation of all witness and involved officers to lethal force events is necessary in order to safeguard the integrity of the investigation of that event. Immediately following any lethal force event, PPB shall continue to issue a communication restriction order (“CRO”) to all witness and involved officers, prohibiting direct or indirect communications between those officers regarding the facts of the event. The CRO will continue, unless extended further, until the conclusion of the Grand Jury or, if no Grand Jury is convened, until a disposition is determined by the District Attorney.
126. PPB shall continue to require witness officers to lethal force events to give an on-scene briefing to any supervisor and/or a member of the Detective Division to ensure that victims, suspects, and witnesses are identified, evidence is located, and Page 44 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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provide any information that may be required for the safe resolution of the incident, or any other information as may be required.
127. In agreement and collaboration with the Multnomah County District Attorney, PPB shall request that involved officers in lethal force and in-custody death events provide a voluntary, on-scene walk-through and interview, unless the officer is incapacitated. C. Conduct of IA Investigations
128. Currently, both IPR and PPB’s PSD have authority to conduct administrative investigations, provided that IPR interview of PPB Officers must only be conducted jointly with IA. Within 120 days of the Effective Date, the City will develop and implement a plan to reduce time and effort consumed in the redundant interview of witnesses by both IPR and IA, and enable meaningful independent investigation by IPR, when IPR determines such independent investigation is necessary.
129. The City and PPB shall ensure that all allegations of use of excessive force are subject to full and completed IA investigations resulting in findings, unless there is clear and convincing evidence to IPR that the allegation has no basis in fact.
130. The City and PPB shall continue to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.
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a. Currently, seven voting members of the PRB review use of force

incidents, including two citizen members. When PRB reviews

uses of force case, one of the two citizen member slots shall be

drawn from the Citizen Review Committee members.

b. The CRC slot on the PRB in use of force cases will rotate among

the CRC membership so that different CRC members participate

on the PRB. Within 60 days of the Effective Date, the Auditor

shall develop a membership rotation protocol.

c. All members participating in the PRB must maintain

confidentiality and be able to make thoughtful, unbiased, objective

recommendations to the Chief of Police and Police Commissioner

that are based on facts, consistent with PRB city code provisions

and “just cause” requirements set forth in Portland City Charter,

City rules, and labor agreements.

d. All community members and CRC members must meet the

following qualifications to participate on the PRB:

i.

Pass a background check performed by the Bureau.

ii.

Participate in Bureau training to become familiar with

police training and policies, including the PRB process.

iii.

Sign a confidentiality agreement.

iv.

Participate in ride-alongs to maintain sufficient knowledge

of police patrol procedures.

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e. Current city code provides that the City Auditor and the Chief have authority to recommend to City Council the removal of citizen members from the PRB pool. Likewise, the City Auditor or Chief shall have authority to recommend to City Council removal of a CRC member from serving on the PRB. The Chief or the City Auditor may recommend that City Council remove a community member or member of the CRC from the pool for the following reasons: i. Failure to attend training; ii. Failure to read Case Files; iii. Objective demonstration of disrespectful or unprofessional conduct; iv. Repeated unavailability for service when requested; v. Breach of confidentiality; vi. Objective demonstration of bias for or against the police; or vii. Objective demonstration of conflict of interest.
f. Removal from participation in the PRB shall not affect CRC membership.
g. Like current PRB citizen members, CRC members serving on the PRB may serve in that capacity for no more than three (3) years.
h. A CRC member who participates in a PRB review shall recuse himself/herself during any later appeal of the same allegation(s) to the CRC.
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132. By majority vote, the PRB may request that investigations of misconduct be returned to its investigating entity, i.e. PSD or IPR, to complete the investigation as to factual matters necessary to reach a finding regarding the alleged misconduct. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the PRB explaining why additional time is needed.
133. If an officer’s use of force gives rise to a finding of liability in a civil trial, PPB shall: (1) enter that civil liability finding in the EIS; (2) reevaluate the officer’s fitness to participate in all current and prospective specialized units ; (3) if no IA investigation has previously been conducted based upon the same allegation of misconduct and reached an administrative finding, conduct a full IA investigation with the civil trial finding creating a rebuttable presumption that the force used also violated PPB policy, which presumption can only be overcome by specific, credible evidence by a preponderance of evidence; (4) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, identify whether any new evidence exists in the record of the civil trial to justify the reopening of the IA investigation, and if so, reinitiate an IA investigation; and (5) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, and no new evidence from the civil trial justifies reopening the IA investigation, work with IPR to identify the reason why the administrative finding was contrary to the civil trial finding and publish a summary of the results of the inquiry.
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D. CRC Appeals 134. The City shall expand the membership of the CRC to 11 members,
representative of the many and diverse communities in Portland, who are neutral, unbiased, and capable of making objective decisions. The quorum of CRC members necessary to act may remain at its existing level.
135. The City and PPB agree that the CRC may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.
136. In its review process for purposes of the appeal, the CRC may make one request for additional investigation or information to the investigating entity, i.e. PSD or IPR at any point during its review. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the CRC explaining why additional time is needed. The request for additional investigation or information may contain multiple points of inquiry, but no follow-up requests will be permitted. The additional request be voted on by a quorum, the members voting must have read the Case File in order to vote, and any request with multiple points of inquiry must be prioritized. E. Discipline
137. Within 60 days of the Effective Date, PPB and the City shall develop and implement a discipline guide to ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors and to provide discipline that is reasonably predictable and consistent. Page 49 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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F. Communication with Complainant and Transparency 138. Within 180 days of the Effective Date, the City shall enhance its existing
website to ensure that a complainant can file and track his or her own complaint of officer misconduct.
139. Within 120 days of the Effective Date, the City shall review its protocols to ensure that the City shares with complainants requested documentation about his or her own complaint to the extent permitted by law.
140. The City shall ensure that IPR provides each complainant a tracking number upon receipt of the complaint, informs each complainant of the complaint classification, assignment (precinct or IA) and outcome of the complaint (sustained, unproven, etc.) in writing (whether mail, email/text, or fax), including information regarding whether the City took any corrective action. The City Attorney’s Office shall determine whether disclosures regarding corrective action are required on a case-by-case basis consistent with Oregon’s Public Records Law.
IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD
There is significant community and City interest in improving PPB’s community relationships. The community is a critical resource. Redefining and restructuring existing community input mechanisms to provide for independent oversight of the Agreement, while also enhancing PPB’s current community outreach efforts will promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety. To achieve this outcome, at a minimum, PPB shall implement the requirements below.
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141. To leverage the ideas, talent, experience, and expertise of the community,

the City, in consultation with DOJ, shall establish a Community Oversight Advisory

Board (“COAB”), within 90 days of the Effective Date of this Agreement. The COAB

shall be authorized to: (a) independently assess the implementation of this Agreement;

(b) make recommendations to the Parties and the COCL on additional actions; (c) advise

the Chief and the Police Commissioner on strategies to improve community relations; (d)

provide the community with information on the Agreement and its implementation; (e)

contribute to the development and implementation of a PPB Community Engagement and

Outreach Plan (“CEO Plan”); and (f) receive public comments and concerns.

142. Membership of the COAB shall be comprised of fifteen (15) voting

members, five (5) advisory members, and the COCL.

a. The 15 voting members and the five advisory members shall be

selected as follows:

i.

Each member of City Council will select one representative

to serve on the COAB, for a total of five voting

representatives;

ii.

The chair of the Human Rights Commission shall designate

one Human Rights Commissioner to serve on the COAB;

iii.

The chair of the Portland Commission on Disability shall

designate one Commissioner on Disability to serve on the

COAB;

iv.

The chair of the Human Rights Commission and the chair

of the Portland Commission on Disability shall jointly

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select three community members to serve as representatives

of the mental health community on the COAB, after

soliciting and reviewing applications from the public.

These three COAB members will possess demonstrated

expertise in the field of mental health in the form of either:

(a) certification as a Qualified Mental Health Professional;

or (b) no less than ten (10) years of demonstrated service to

persons with mental illness. These three selections shall be

completed within 60 days of the COCL selection.

v.

The community-at-large will select five voting

representatives directly from the community. The process

used for this selection is discussed in paragraph 145 herein;

and,

vi.

The Chief will select a diverse group of five sworn officers

within various ranks to serve as advisors and non-voting

members of the COAB, and may consider whether the

officer resides in Portland (“Advisory Members”).

b. The COAB’s membership will come from a reasonably broad

spectrum of the community, such as: areas of expertise, advocacy

experience, community involvement, profession, education, race,

ethnicity, gender, gender identity, sexual orientation, national

origin, age, religion, mental or physical disability and geographic

identification. COAB members, including Advisory Members,

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must live, work, worship, or attend school in the City of Portland. COAB members shall not have an actual or perceived conflict of interest with the City of Portland. 143. The 15 voting members of COAB are independent of the City and PPB and shall not be currently employed by the City. Members must agree to serve for a minimum of a two-year term, and may be reappointed for one additional year. The COAB may create an executive committee or other subcommittees, as appropriate, to accomplish the tasks designated to it under this Agreement. The City shall provide administrative support so that the COAB can perform the duties and responsibilities identified in this Agreement. 144. The COAB shall report to the COCL. The COCL will chair the COAB, preside over COAB meetings, take and count votes, and perform such other activities as are necessary for the efficient operation of the COAB. If the COCL determines that a COAB member is no longer fit to serve on account of misconduct, the COCL shall consult with DOJ prior to removing such member. Following the removal of a COAB member, an alternative shall be selected from the same pool of applicants as the removed COAB member. 145. Selection of the five (5) community voting members shall be made as follows: a. Each neighborhood coalition in Portland may propose a candidate for membership on the Committee. Any other non-profit organization within the City may also propose a candidate for membership. Any other person who lives, works, or is enrolled in Page 53 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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school in Portland and is over the age of 15 may be considered

provided they provide the City with the names of 50 verified

residents over the age of 15 of the City of Portland who support his

or her nomination;

b. The City shall widely advertise and hold a public meeting where

previously nominated candidates will be selected. Any Portland

resident is welcome to attend and participate in the selection

process. The City will publicize the meeting throughout all the

various communities of Portland;

c. At the public meeting, candidates will be given an opportunity to

speak and ask for support. In their statements, candidates must

indicate whether they live, work, worship, and/or attend school

within the City of Portland;

d. Attendees at the public meeting and will be asked to select their

choice of candidates;

i.

If there are ten or fewer candidates, then the attendees

present will select the top five candidates receiving the

most votes;

ii.

If there are more than ten candidates, a preliminary vote

will be taken and the top ten candidates receiving the most

votes will be selected and a second vote will be taken to

reduce the number to the five persons that will serve on the

COAB;

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iii.

The next two candidates who receive the most votes shall

be identified as potential alternates, should a COAB

member be removed or incapacitated; and,

iv.

Because the number of persons who may be interested in

participating in this process is unknown, the City may

adopt other procedures necessary to conduct the meeting

and to carry out the intent of these provisions.

e. This process of selecting the five community members shall be

completed within 60 days of the COCL selection.

146. To ensure constitutional policing, to closely interact with the community

to resolve neighborhood problems, and to increase community confidence, PPB shall

work with City resources knowledgeable about public outreach processes to develop and

finalize a CEO Plan:

a. Within 90 days of the COAB selection, the City, in consultation

with COAB, will conduct a reliable, comprehensive, and

representative survey of members of the Portland community,

including civilians and PPB officers, regarding their experiences

with and perceptions of PPB’s prior community outreach efforts

and accountability efforts and where those efforts could be

improved, to inform the development and implementation of the

CEO Plan;

b. COAB, in conjunction with PPB, shall consult with community

members (not only through PPB Advisory Councils and

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Roundtables) and hold at least two (2) public hearings, completed within 90 days of the COAB selection, in addition to the representative survey described above, to gather public input on PPB’s outreach efforts; the hearings shall be held in locations to ensure that PPB receives input from all parts of the Portland community; c. COAB shall review PPB’s prior community outreach efforts to contribute to the development of a new CEO Plan; d. COAB shall solicit and consider input from the Human Rights Commission’s Community Police Relations Committee (“CPRC”), including its work to implement the 2009 PPB “Plan to Address Racial Profiling”; e. Within 60 days of the anticipated due date for survey results, the COAB and PPB, in consultation with the appropriate City resources knowledgeable about public outreach and survey analysis, shall review and analyze the results of the survey and other public comments discussed above; f. The CEO Plan shall include strategies to ensure greater public outreach and engagement, including opportunities for outreach to a broad cross-section of community members. The Plan shall also identify gaps in available resources to achieve its goals.
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g. The COAB may also provide information to the PPB on other

areas related to community engagement and outreach to contribute

to the development of the CEO Plan, including:

i.

integration of community and problem-oriented policing

principles into PPB’s management, policies and

procedures;

ii.

recruitment, selection, training, promotion, and personnel

evaluations;

iii.

tactics and deployment of resources; and

iv.

systems of accountability.

g. COAB shall submit its recommended CEO Plan to the Chief, in

writing, within 90 days of the COAB’s completion of survey

analysis.

h. The Chief’s Office, in consultation with the five PPB advisory

members of the COAB shall utilize the COAB’s recommendations

in developing and implementing the CEO Plan. The Chief’s

Office shall present the final proposed CEO (with implementation

timeline) to the COAB for a vote of approval within 240 days of

the effective date of this Agreement.

147. PPB shall continue to collect appropriate demographic data for each

precinct so that the Precinct Commander, together with the COAB, may develop outreach

and policing programs specifically tailored to the residents of the precincts.

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148. PPB shall continue to require that officers document appropriate demographic data regarding the subjects of police encounters, including the race, age, sex and perceived mental health status of the subject, and provide such information to the CPRC to contribute to their analysis of community concerns regarding discriminatory policing. In consultation with the COAB and CPRC, PPB shall consider enhancements to its data collection efforts, and report on its efforts to enhance data collection to the DOJ by no later than December 31, 2013, and quarterly thereafter.
149. The COAB, COCL, PPB, and DOJ will jointly develop metrics to evaluate community engagement and outreach.
150. Annually, PPB shall issue a publicly available PPB Annual Report, which shall include a summary of its problem-solving and community policing activities. A draft of the Annual Report shall be reviewed by the COAB before the report is finalized and released to the public. Once released, PPB shall hold at least one meeting in each precinct area and at a City Council meeting, annually, to present its Annual Report and to educate the community about its efforts in community policing in regard to the use of force, and about PPB’s policies and laws governing pedestrian stops, stops and detentions, and biased-free policing, including a civilian’s responsibilities and freedoms in such encounters.
151. The COAB may make recommendations approved by a majority of its membership regarding implementation of the terms of this Agreement.
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and solicit comment on PPB’s activities in regards to community outreach, engagement, and problem-solving policing. The COAB shall also provide the opportunity for public comment at each of its meetings to keep open lines of communication with the public-atlarge.
153. A representative of the Oregon U.S. Attorney’s Office shall be invited to attend all COAB meetings.
154. COAB shall meet as needed to accomplish their objectives as set forth in this Agreement. All COAB meetings shall be open to the public. In addition, COAB shall attend quarterly meetings with the COCL as provided in Par 163. To the extent that COAB meetings are subject to the Oregon Public Meetings Law, or similar regulatory or statutory requirements, the City shall be responsible to give advice necessary to the COCL to ensure compliance with those laws and agrees to represent COCL in any challenges regarding compliance with those laws.
155. The City shall provide COAB members with appropriate training necessary to comply with requirements of City and State law.
X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT 156. PPB shall implement immediately all provisions of this Agreement which involve the continuation of current policies, procedures, and practices specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement. Except where otherwise specifically indicated, PPB shall implement all other provisions of this Agreement no later than within 180 days of the Effective Date.
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157. With regard to any provision that provides for DOJ’s review and approval, including review of all policies that must be revised, approval will be granted in a timely fashion provided that the PPB’s action reasonably satisfies the requirements and standards set forth in the relevant provision(s).
158. All PPB audits and reports related to the implementation of this Agreement shall be made publicly available via website and at PPB, IPR, City Hall, and other public locations. Audits and reports shall be posted on PPB’s website.
159. PPB shall collect and maintain all data and records necessary to facilitate and ensure transparency and wide public access to information related to PPB decision making and activities, and compliance with this Agreement, in accordance with the Oregon Public Records Law. A. Compliance Officer/Community Liaison
160. Within 60 days from the Effective Date, the City shall publicly identify three potential candidates with expertise in police practices, community engagement, and crisis intervention methods, to serve as a Compliance Officer and Community Liaison (“COCL”). Following a 30-day public comment period, the City Council shall select a COCL, who shall be responsible for synthesizing data related to PPB’s use of force, reporting to the City Council, DOJ, and the public and gathering input from the public related to PPB’s compliance with this Agreement. The COCL shall not be attached to any one City office, shall be wholly independent of PPB, and shall be responsive to the entire City Council, the public, and DOJ. The City shall provide administrative support so that the COCL can perform the duties and responsibilities identified in this Agreement.
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161. In order to collect data and report on PPB’s implementation of each substantive provision of this Agreement, the COCL shall conduct the reviews specified in paragraph 173 of this Agreement and such additional reviews regarding the implementation of this Agreement as the COCL, the City, or DOJ deems appropriate. Based on the COCL’s reviews and community input, the COCL shall make recommendations to the City regarding measures necessary to ensure full and timely implementation of this Agreement.
162. The COCL shall prepare quarterly, written, public reports detailing PPB’s compliance with, and implementation of, each substantive provision of this Agreement. The reports shall specify: (a) the methodology and monitoring activities employed; (b) the COCL’s assessment of compliance for each paragraph; and (c) the COCL’s recommendations regarding necessary steps to achieve compliance, as warranted. The COCL shall substantiate his or her compliance assessments and recommendations. The COCL’s reports shall be written with due regard for the privacy interests of individual officers and the subjects involved in the use of force interactions, and the interest of PPB in protecting against disclosure of non-public information.
163. The COCL shall provide a copy of all reports to the Parties and the COAB in draft form and allow the Parties and the COAB 30 days to informally comment on the reports. The COCL shall also hold open town hall meetings on a quarterly basis where he/she will present his/her draft compliance report to the COAB, and receive public comment on his/her assessments of compliance and recommendations. The COAB will be responsible for drafting comments to the COCL’s report, and shall incorporate any comments or concerns from the public-at-large related to PPB’s compliance with the Page 61 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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Agreement into its comments. The public shall have the opportunity to raise comments or concerns at the open town hall meeting or via online and/or electronic mail submissions. The COCL and COAB shall jointly ensure that the time and location of these quarterly town hall meetings are well publicized with sufficient advance notice and that significant efforts are made to procure attendance of a community body broadly representative of the many and diverse communities in Portland, including persons with mental illness, mental health providers, faith communities, minority, ethnic, and other community organizations, and student or youth organizations. These quarterly meetings shall facilitate the sharing of information on the Agreement and its implementation with the broad community body and permit the COCL and the COAB to receive comments and concerns.
164. The COCL shall consider the Parties’ responses and COAB’s response to its draft report and make appropriate changes, if any, before issuing a final version of the report. The COCL shall issue the final report to the Parties and make all final reports publicly available through posting on the City’s website. The Parties’ responses and COAB’s response to the COCL’s draft report shall also be published on the City’s website. The Parties may submit any COCL reports to the Court if questions arise concerning compliance with this Agreement. The Parties agree that COCL reports may be used to evidence compliance or non-compliance with this Agreement, subject to the weight afforded to such reports by the Court. B. PPB Compliance Coordinator
165. PPB will hire or retain an employee familiar with the operations of PPB for the duration of this Agreement, to serve as a PPB Compliance Coordinator. The Page 62 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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Compliance Coordinator will serve as a liaison between PPB and both the COCL and DOJ and will assist with PPB’s compliance with this Agreement. At a minimum, the Compliance Coordinator will:
a. Coordinate PPB’s compliance and implementation activities; b. Facilitate the provision of data, documents, materials, and access to
PPB personnel to the COCL and DOJ, as needed; c. Ensure that all documents and records are maintained as provided
in this Agreement; d. Assist in assigning compliance tasks to PPB personnel, as directed
by the Chief of Police or the Chief’s designee; and e. Take primary responsibility for collecting the information the
COCL requires to carry out his/her assigned duties. C. Access to People and Documents
166. The COCL shall have full and direct access to all PPB and City staff, employees, facilities, and documents that the COCL reasonably deems necessary to carry out his/her duties. If a document requested by the COCL is a privileged attorney-client communication, the COCL shall not disclose the document in a manner that destroys that privilege without the approval of the City Attorney. The COCL shall cooperate with PPB and the City to access people, facilities, and documents in a reasonable manner that minimizes, to the extent possible, interference with daily operations. In order to report on PPB’s implementation of this Agreement, the COCL shall regularly conduct reviews to ensure that PPB implements and continues to implement all measures required by this
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Agreement. The COCL may conduct on-site reviews without prior notice to PPB or the City.
167. For the purpose of monitoring this Agreement, DOJ and its consultative experts and agents shall have full and direct access to all PPB and City staff, employees, facilities, and documents, that DOJ reasonably deems necessary to carry out the enforcement and monitoring provisions of this Agreement to the extent permitted by law. DOJ and its consultative experts and agents shall cooperate with PPB and the City to access involved personnel, facilities, and documents in a reasonable manner that minimizes interference with daily operations; however, DOJ may conduct on-site reviews without prior notice to PPB or the City. DOJ shall provide PPB or the City with reasonable notice of a request for copies of documents. Upon such request, PPB or the City shall provide DOJ with copies (electronic, where readily available) of any documents that DOJ is entitled to access under this Agreement, except any documents protected by the attorney-client privilege. Should PPB decline to provide DOJ with access to a document based on attorney-client privilege, PPB promptly shall provide DOJ with a log describing the document, including its author, recipients, date of production, and general topic.
168. All non-public information provided to the COCL or DOJ by PPB or the City shall be maintained in a confidential manner. Nothing in this Agreement requires the City to disclose documents protected from disclosure by the Oregon Public Records Law to third parties.
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D. Review of Policies and Investigations 169. Within 180 days of the Effective Date, PPB shall revise and/or develop its
policies, procedures, protocols, training curricula, and practices to ensure that they are consistent with, incorporate, address, and implement all provisions of this Agreement specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement. PPB shall revise and/or develop as necessary other written documents such as handbooks, manuals, and forms, to effectuate the provisions of this Agreement. PPB shall send new or revised policies, procedures, protocols, and training curricula regarding use of force, interactions with persons in mental health crisis and systems of accountability to DOJ as they are promulgated, with a copy to the COCL. DOJ and the COCL will provide comments within 45 days and will not unreasonably withhold recommendations about policies, procedures, protocols, and training curricula. The COCL shall seek the timely input of the relevant members of the Training Division and patrol officers, as well members of the community. If the City disagrees with DOJ’s comments, the City shall, within 14 days of being informed of the DOJ’s comments, inform the Parties in writing of the disagreement. Within 14 days thereafter, the Parties shall meet and confer on the disagreement at a mutually agreeable time. Upon approval by the Parties, policies, procedures, training curricula, and manuals shall be implemented within 30 days of agreement or the Court’s decision. PPB shall provide initial and in-service training to all officers and supervisors with respect to newly implemented or revised policies and procedures. PPB shall document employee review of and training in new or revised policies and procedures. Page 65 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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170. The Chief shall post on PPB’s website final drafts of all new or revised policies that are proposed specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement, to allow the public an opportunity for notice and comment, prior to finalizing such policies.
171. The Chief’s Office shall coordinate a review of each policy or procedure required by this Agreement 180 days after such policy or procedure is implemented, and annually thereafter (on a regularly published schedule), to ensure that such policy or procedure provides effective direction to PPB personnel and remains consistent with the purpose and requirements of this Agreement.
172. PPB shall apply policies uniformly and hold officers accountable for complying with PPB policy and procedure.
173. In addition to compliance reviews, the COCL shall lead semi-annual qualitative and quantitative outcome assessments to measure whether the City and PPB’s implementation of this Agreement has created: (1) capable systems and resources for responding to persons in mental health crisis; (2) competent accountability and oversight systems; (3) effective training for police officers that increases the knowledge, skills and abilities necessary for effective and successful delivery of service to persons in mental health crisis; (4) proper management of the use of force to meet constitutional standards; and (5) robust systems of community engagement. These outcome assessments shall be informed by the following:
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a. Use of Force Data: i. the number of police interactions where force was used on individuals with actual or perceived mental illness, including the type of force used; the reason for the interaction, i.e., suspected criminal conduct or a well-being check; the threat to public safety, including whether the person was armed and if so, with what; a description of the type of resistance offered, if any; and a description of any attempts at strategic disengagement; ii. the rate of force used per arrest by PPB; force implement used; geographic area (i.e., street address, neighborhood, or police precinct or district); type of arrest; and demographic category; iii. the rate of force complaints that are sustained, overall and by force type; source of complaint (internal or external); type of arrest; type of force complained of; demographic category; iv. uses of force that were found to violate policy overall and by force type; type of arrest; demographic category; force implement used; and number of officers involved; v. the number and rate of use of force administrative investigations/reviews in which each finding is supported by a preponderance of the evidence;
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vi. the number of officers who frequently or repeatedly use force, or have more than one instance of force found to violate policy;
vii. the rate at which ECW usage decreases or increases compared to the use of force overall and by weapon; and
viii. the rate at which officer and subject injuries decrease or increase overall and by severity of injury.
b. Mental health interaction data on: i. MCPT dispositions; ii. the flow of people in mental health crisis through PPB, the County jail, emergency receiving facilities, and community agencies; iii. officer and agency staff satisfaction with the transfer process; iv. the rate of repeat calls for service involving individuals in mental health crisis; v. the use of the mental health commitment law; and vi. the availability of appropriate treatment options;
c. Training data, including: i. officer evaluation of adequacy of training; and ii. the Training Division’s assessment of incidents involving officer or civilian injury.
d. Performance data, including: Page 68 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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i. uses of force found to be unreasonable, complaints sustained and not sustained, and other performance related indicators for supervisors/commanders promoted pursuant to the requirements of this Agreement, and for the units these supervisors/commanders command; and
ii. initial identification of officer violations and performance problems by supervisors, and effectiveness of supervisory response.
e. Accountability data, including: i. the number of complaints (broken out by type of complaint), with a qualitative assessment of whether any increase or decrease appears related to access to the complaint process; ii. rate of sustained, not sustained, exonerated complaints; iii. the number and rate of complaints in which the finding for each allegation is supported by a preponderance of the evidence; iv. the number of officers who are subjects of repeated complaints, or have repeated instances of sustained complaints; and v. the number, nature, and settlement amount of civil suits against PPB officers regardless of whether the City is a defendant in the litigation.
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174. In conducting these outcome assessments, the COCL may use any relevant data collected and maintained by PPB, provided that it has determined, and the Parties agree, that this data is reasonably reliable and complete. Additionally, the COCL shall solicit input from community groups or initiatives that have relevant experience conducting statistical analyses. The COCL will contribute to and review the Annual Community Survey.
175. Two years after the Effective Date, DOJ shall conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by the Agreement have been achieved. DOJ will further examine whether any modifications to the Agreement are necessary in light of changed circumstances or unanticipated impact (or lack of impact) of the Agreement’s requirements. This assessment also shall address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating full and effective compliance. Based upon this comprehensive assessment, DOJ may recommend modifications to the Agreement that are necessary to achieve and sustain intended outcomes. Where the City agrees with DOJ’s recommendations, the Parties shall stipulate to modify the Agreement accordingly. Nothing in this assessment shall empower DOJ to unilaterally modify the terms of this Agreement. E. City Reports and Records
176. Beginning with the COCL’s first quarterly report, as set forth in paragraph 166 of this Agreement, PPB shall prepare a status report no later than 45 days before the COCL’s quarterly report is due. The PPB Compliance Coordinator shall lead the effort in preparing this status report and shall provide copies to the COCL, DOJ, and the public. Page 70 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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PPB’s report shall delineate the steps taken by PPB during the reporting period to comply with each provision of this Agreement.
177. PPB shall maintain all records, as applicable, necessary to document their compliance with the terms of this Agreement and all documents expressly required by this Agreement. F. Enforcement
178. The Parties agree jointly to file this Agreement with the United States District Court for the District of Oregon, in a matter to be captioned United States v. City of Portland, Civil Action No. --CV--. The joint motion shall request that the Court enter the Agreement pursuant to Federal Rule of Civil Procedure 41(a)(2), and conditionally dismiss the complaint in this action with prejudice, while retaining jurisdiction to enforce the Agreement. If the Court does not retain jurisdiction to enforce the Agreement, the Agreement shall be void.
a. The Parties anticipate that the City will have substantially complied with all provisions of the Agreement by October 12, 2017. Substantial compliance is achieved if any violations of the Agreement are minor or occasional and are not systemic.
b. The Court shall retain jurisdiction of this action for all purposes until the City has substantially complied with all provisions of this Agreement and maintain substantial compliance with all provisions for one year.
c. The Parties may agree to jointly ask the Court to terminate the Agreement before the end of the five year term, provided the City
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has substantially complied with all provisions of the Agreement and maintained substantial compliance with all provisions for one year. If the case has not yet been dismissed, the Parties agree to ask the Court for a non-evidentiary hearing on the status of compliance on or near October 12, 2017. If the Parties agree that there is non-compliance, or if there is a dispute about compliance, the Parties will so inform the Court, and the Court may set additional hearing dates as appropriate. The Parties may agree jointly at any time to allow for additional time to resolve compliance issues. 179. The United States acknowledges the good faith of PPB and the City in trying to address the remedial measures that are needed to promote police integrity and ensure constitutional policing in the City. The United States, however, reserves its right to seek enforcement of the provisions of this Agreement if it determines that PPB or the City have failed to fully comply with any provision of this Agreement. 180. The United States understands that many portions of this Agreement will take time to implement and that implementation may require changes to, among other things, collective bargaining agreements, the city code, and current city policies and will likely require additional revenue resources that have not yet been identified at the time this Agreement is executed. 181. If the United States reasonably believes the City has failed to implement the terms of the Agreement, it shall promptly notify the City in writing and identify with specificity the portion or portions of the Agreement about which it has concerns. Page 72 – SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2);
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Similarly, if the City believes that DOJ has misinterpreted a provision of this Agreement

it may promptly notify DOJ of its concerns, noting the specific portions of the Agreement

that it believes has been misinterpreted.

182. Notices provided by the United States or by the City shall be in writing

and provided by mail to the following persons:

Chief of Police 1111 SW Second Portland, Oregon 97204

City Attorney 1221 SW 4th Avenue, Suite #430 Portland, Oregon 97204

Section Chief Special Litigation Section 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

U.S. Attorney District of Oregon 1000 S.W. Third Ave., Suite 600 Portland, OR 97204

183. Following receipt by mail of any written Notice, the City or DOJ shall

respond in writing within 30 days to the concerns raised by the other Party. Depending

on the nature and number of the concerns the City or DOJ may request additional time to

respond, and such a request shall not be unreasonably denied. The Notice and the Party’s

Response thereto shall be considered to be in the nature of settlement discussions

between the Parties and subject to Federal Rule of Procedure 408.

184. If the Response fails to resolve the other Party’s concerns, the Parties

agree to meet as soon thereafter as is mutually convenient to discuss the City’s

compliance with the portion(s) of the Agreement identified in the Notice or the

interpretation of the Agreement by DOJ. Persons attending the meeting shall have

authority to resolve the concerns, unless resolution of the concern requires adoption of an

ordinance or resolution by City Council or by the Assistant Attorney General in Charge

of the DOJ Civil Rights Division.

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185. If a meeting between the Parties fails to resolve the concerns, the Parties agree to participate in mediation conducted by a neutral third party mutually agreeable to the Parties. If the Parties cannot agree upon the selection of a mediator, the Parties shall submit three names of potential mediators to each other. Each Party may then strike two of the three names provided by the other Party. The remaining two names shall be given to the Chief Judge of the U.S. District Court for the District of Oregon and the Chief Judge shall appoint the mediator from one of the names provided.
186. If mediation fails to resolve the concerns, the United States or the City may file a Motion in the Federal District Court for the District of Oregon, located in Portland, Oregon, to enforce compliance with the terms of this Agreement or to seek a Declaration of the meaning of this agreement. The Motion or request for Declaration shall only allege concerns raised by the Parties which were the subject of mediation. The Parties shall then meet with the court to schedule a date on which the Motion or Declaration shall be heard or will otherwise comply with the court’s preferred procedure. The Parties agree the Judge hearing the Motion shall determine whether or not the Agreement has been breached and may interpret the meaning of the Agreement and has the power to issue an appropriate remedy, if any. If, for any reason, the Judge finds the City is not in compliance with the Agreement, but that noncompliance was beyond the reasonable control of the City, the City shall not be in breach of this Agreement. However, in the event of noncompliance beyond the reasonable control of the City, the Parties agree that the Court may exercise its equitable powers to devise an appropriate remedy or modification of this Agreement to accomplish the same result as that intended
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by the portion of the Agreement with which noncompliance was found, provided the Parties cannot reach agreement on the remedy or modification.
187. Nothing prohibits the Parties from engaging in any informal or formal discussions regarding this Agreement or the City’s compliance with this Agreement. The Parties may jointly stipulate to make changes, modifications, and amendments to this Agreement, which shall be effective, absent further action from the Court, 45 days after a joint motion has been filed with the Court. Any modification of this Agreement by the City of Portland must be approved by the City Council of the City by written ordinance.
188. The Parties agree to defend the provisions of this Agreement. The Parties shall notify each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any City, county, or state court, removal to a federal court shall be sought by the Parties.
189. The PPB and the City agree to promptly notify DOJ if any term of this Agreement becomes subject to collective bargaining. The City agrees to keep DOJ apprised of the status of the resulting negotiations.
190. All PPB officers and persons related to the implementation of this Agreement shall sign a statement indicating that they have read and understand this Agreement within 90 days of the effective date of this Agreement. Such statement shall be retained by PPB. PPB shall require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors.
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RESPECTFULLY SUBMITTED this _17th__ day of __December_________ 2012. FOR THE UNITED STATES: ERIC HOLDER Attorney General

/s/ S. Amanda Marshall____________ S. AMANDA MARSHALL United States Attorney District of Oregon
ADRIAN L. BROWN BILLY J. WILLIAMS Assistant United States Attorneys

/s/ Thomas E. Perez_________________ THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section LAURA COON Special Counsel R. JONAS GEISSLER MICHELLE JONES Senior Trial Attorneys

FOR THE CITY OF PORTLAND
/s/ Sam Adams SAM ADAMS Mayor Police Commissioner

APPROVED AS TO FORM:
/s/ James H. Van Dyke JIM VAN DYKE City Attorney

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 Case 3:12-cv-02265-SI Document 86 Filed 08/29/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF PORTLAND, Defendant.

Case No. 3:12-cv-02265-SI
ORDER ENTERING SETTLEMENT AGREEMENT, CONDITIONALLY DISMISSING LITIGATION, AND SETTING FIRST ANNUAL SETTLEMENT-COMPLIANCE HEARING

S. Amanda Marshall, United States Attorney; Adrian L. Brown and Billy J. Williams, Assistant United States Attorneys, David W. Knight, Special Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Jocelyn Samuels, Acting Assistant Attorney General; Jonathan M. Smith, Chief; Laura Coon, Special Counsel; R. Jonas Geissler and Michelle Jones, Senior Trial Attorneys, Special Litigation Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, 50 Pennsylvania Avenue, NW, Washington, D.C. 20530. Of Attorneys for Plaintiff.
Tracey Pool Reeve, City Attorney; David Woboril, Senior Deputy City Attorney; Ellen Osoinach, Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 S.W. Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant.
Anil S. Karia, TEDESCO LAW GROUP, 3021 N.E. Broadway, Portland, OR 97232. Of Attorneys for Intervenor-Defendant Portland Police Association.
J. Ashlee Albies, CREIGHTON & ROSE, P.C., 500 Yamhill Plaza Building, 815 S.W. Second Avenue, Portland, OR 97204; Shauna M. Curphey, CURPHEY & BADGER, P.A., 520 S.W. Sixth Avenue, Suite 1040, Portland, OR 97204. Of Attorneys for Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform.
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Michael H. Simon, District Judge. The United States of America (“Plaintiff” or “United States”) brought this lawsuit
against the City of Portland (“Defendant” or “City of Portland”) under 42 U.S.C. § 14141. The United States and the City of Portland have entered into a proposed Settlement Agreement (“Settlement Agreement”) and have jointly moved the Court to accept the Settlement Agreement and enter the Settlement Agreement as an Order of the Court. Both the United States and the City of Portland agree that entering into the Settlement Agreement, rather than engaging in contested litigation, is the best way to resolve the claims brought by the United States in this matter, which concern policing practices in the City of Portland primarily with respect to persons with actual or perceived mental illness. Both the United States and the City of Portland further agree that it will likely take several years, possibly as many as five years, for the City of Portland substantially to comply with all of the provisions of the Settlement Agreement. In addition, both the United States and the City of Portland jointly ask the Court to retain jurisdiction over this action for all purposes until the City of Portland substantially has complied with all provisions of the Settlement Agreement and maintained substantial compliance with all provisions for one year.
At the Court’s request, the United States, the City of Portland, IntervenorDefendant Portland Police Association (“PPA”), and Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform (“AMA Coalition”) engaged in mediation. The mediation produced two separate agreements: a Memorandum of Agreement (“MOA”) between the United States, the City of Portland, and the PPA; and a
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Collaborative Agreement (“CA”) between the United States, the City of Portland, and the
AMA Coalition.
The question before the Court is whether the Settlement Agreement, as a whole, is
fair, adequate, and reasonable as a means of resolving the claims raised in the Complaint.
To assist the Court in answering that question, the Court held a Fairness Hearing on
February 18 and 19, 2014, and received written submissions and oral testimony from the
United States, the City of Portland, Intervenor-Defendant PPA, Enhanced Amicus Curiae
AMA Coalition (collectively the “Parties”), and numerous members of the public,
pre-hearing, during the hearing, and post-hearing.
Following the Fairness Hearing, the Court directed several questions to the
Parties. One question asked by the Court was:
Question 12: A number of police departments provide officers with “on-officer recording systems” (also known as “body cameras,” “body cams,” or “cop cams”), which are small, pagersized cameras that clip onto an officer’s uniform or glasses or are worn as a headset. These devices record audio and video of the officer’s interactions with the public. Please explain whether requiring these devices would promote the objectives of the Agreement and, if so, why such a requirement was not included.
ECF No. 61, pp. 7-8. In response to this question, the United States stated:
The United States has not required that all PPB officers wear body cameras, but the Agreement does not prohibit the City from using body cameras. Currently, the City records many of its interactions through mobile video recorders, handheld radio transmissions, and GPS locations. It is our understanding that the City is willing to engage in use of body cameras to the extent that the technology is dependable and that its use is affordable. If the City utilizes body cameras, the City must carefully govern their use to protect the rights of subjects and bystanders, e.g., providing Miranda warnings when appropriate and respecting reasonable expectations of privacy.
The determination to include or exclude body cameras from the Agreement is driven by a number of factors. While technology Page 3 – ORDER ENTERING SETTLEMENT AGREEMENT

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limitations, concerns about privacy rights, and appropriateness of remedy may weigh on such considerations, the ultimate compromise reached in this case is the product of negotiation and subject to settlement privilege. ECF No. 63, pp. 20-21 (emphasis added). The Court notes that as the technology in this area continues to improve and become more dependable and affordable, more city police departments in the United States are choosing to employ this technology in ways that protect both law enforcement officers and the public they serve. Notwithstanding these positive developments, the fact that the Settlement Agreement does not contain such a requirement does not justify the rejection of the Settlement Agreement. After reviewing the Settlement Agreement and considering the views of the Parties and all public comments received, the Court finds that the Settlement Agreement, as a whole, is fair, adequate, and reasonable to address the claims raised in the Complaint and, accordingly, hereby: ORDERS that the Settlement Agreement shall be and is entered as an Order of the Court; ORDERS that the Complaint is conditionally dismissed without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, subject to the terms set forth in this Order, which the Court considers proper, just, and necessary; ORDERS that the Court retain jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1345, to enforce any provision of the Settlement Agreement, the MOA, or the CA; ORDERS that the City of Portland direct the Compliance Officer/Community Liaison (“COCL”), a position created under the Settlement Agreement, to provide copies to the Court in a timely fashion, or that the City of Portland do so itself, of all final quarterly reports, which are referenced in the Settlement Agreement;
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ORDERS the Parties and the COCL (by ordering the City of Portland to so direct the COCL) to appear before the Court at periodic hearings, to be held approximately annually, unless otherwise ordered by the Court, to describe to the Court the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end, to respond to the Court’s questions on these issues, and to present evidence on these issues as so directed by the Court;
ORDERS that the first post-approval periodic hearing be held on Monday, September 14, 2015, at 9:00 a.m. in Courtroom 13B of the Mark O. Hatfield United States Courthouse, in Portland, Oregon; and
ORDERS that this civil action be placed on the Court’s inactive docket, other than for the periodic hearings referenced in this Order or otherwise as may be directed by the Court, and subject to recall to the active docket should the United States move to enforce the Settlement Agreement.
The Parties’ Joint Motion to Enter Settlement Agreement (ECF No. 3) and alternative Joint Motion to Enter Settlement Agreement (ECF No. 77) are GRANTED IN PART AND DENIED IN PART, as set forth in this Order.
IT IS SO ORDERED. DATED this 29th day of August, 2014.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:12-cv-02265-SI Document 4 Filed 12/17/12 Page 2 of 11 Page ID#: 24

UNITED STATES DISTRICT COURT
 DISTRICT OF OREGON
 PORTLAND DIVISION


UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI
MEMORANDUM IN SUPPORT OF JOINT MOTION TO ENTER SETTLEMENT AGREEMENT AND CONDITIONALLY DISMISS ACTION

INTRODUCTION The parties seek to resolve the Complaint filed by the United States pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (1994) (“Section 14141”) through entry of the attached proposed Settlement Agreement (“Agreement”). See Attachment 1. The United States’ Complaint alleges that the Portland Police Bureau (“PPB”) engages in a pattern or practice of using excessive force on individuals with actual or perceived mental illness in violation of the Fourth Amendment to the Constitution and other laws of the United States. Specifically, the United States alleges that in encounters with persons with mental illness or perceived mental illness, PPB officers: (1) too frequently use a higher level of force than necessary; (2) use electronic control weapons (“ECWs”), commonly referred to as “Tasers,” in circumstances when such force is not justified, or deploy ECWs more times than necessary on an individual; and (3) use a higher degree of force than justified for low level offenses.
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The City of Portland (“City”) disagrees with the conclusions of United States regarding PPB’s alleged use of excessive force, but nonetheless has agreed to enter into the Agreement out of a mutual desire to protect the constitutional rights of all members of the Portland community, to continuously improve the safety and security of the people of Portland, to keep PPB employees safe, and to increase public confidence in PPB, all in a cost-effective, timely, and collaborative manner.
As further discussed below, entry of the proposed Settlement Agreement is appropriate in this case because: it is fair, adequate, and reasonable; resulted from arm’s-length negotiations by sophisticated parties; is consistent with the purpose of Section 14141; and is the most effective way to implement the systemic reforms needed to address the allegations in the Complaint.
ARGUMENT Entry of the proposed Settlement Agreement is appropriate because it is fair, adequate, and reasonable, resulted from arm’s-length negotiations by sophisticated parties, is consistent with the purpose of Section 14141, and is the most effective way to implement the systemic reforms needed to address the allegations in the Complaint.1 Officers for Justice v. Civil Service Comm’n, et al., 688 F.2d 615, 625 (9th Cir. 1982), cert. denied, 459 U.S. 1217 (1983); United States v. Oregon, 913 F.2d 576, 586 (9th Cir. 1990); Cemex Inc. v. L.A. County, 166 Fed. Appx. 306, 307 (9th Cir. 2006) (finding that consent decree was negotiated in good faith and at “arm’s length”). This analysis does not require “the achievement of the optimal outcome for all

1

This Agreement is not a consent decree, but is a settlement agreement that the parties

agree should be subject to judicial oversight. In other contexts, the courts have used consent

decree analysis to approve and retain judicial enforcement of court-enforceable agreements that

were not consent decrees. See Oregon, 913 F.2d at 580 (discussing approval and retained

jurisdiction over the “Salmon Plan”).

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parties,” but rather, “[t]he court need only be satisfied that the decree represents a reasonable factual and legal determination.” Id. at 580-81.
Further, public policy favors settlement, particularly in complex litigation such as the pattern or practice claim brought by the United States. Officers for Justice, 688 F.2d at 625 (“[I]t must not be overlooked that voluntary conciliation and settlement are the preferred means of dispute resolution.”); United States v. McInnes, 556 F.2d 436, 441 (9th Cir.1977) (“We are committed to the rule that the law favors and encourages compromise settlements.”). In this case, the Agreement demonstrably reaches and surpasses the legal standard for court approval. I. The Agreement Conforms to Section 14141 and is Fair, Adequate, and Reasonable
Before approving a court-enforceable agreement, a district court must be satisfied that the Settlement Agreement is at least “fundamentally fair, adequate and reasonable.” Oregon, 913 F.2d at 580. In making this determination, the courts balance several factors, including but not limited to: “strength of the plaintiffs' case; risk, expense, complexity and possible duration of continued litigation; relief offered in settlement; extent of discovery already completed; stage of proceedings; experience and views of counsel; governmental participation; and reaction of the class members.” See, e.g., Davis v. City and County of San Francisco, 890 F.2d 1438, 1445 (9th Cir. 1989) (citing Officers for Justice, 688 F.2d at 625).). In addition, because court enforceable agreements are a form of judgment, they must conform to applicable laws. Oregon, 913 F.2d at 580 -581.
The parties’ proposed Agreement in this case corresponds to the United States’ authority to ensure constitutional policing practices through injunctive relief under Section 14141. Congress enacted Section 14141 to forbid law enforcement officers from engaging in a pattern or practice “that deprives persons of rights, privileges, or immunities secured or protected by the
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Constitution or laws of the United States.” 42 U.S.C. § 14141(a). The statute contains no limitation on the nature of the constitutional or federal rights that it protects. Where a pattern or practice of constitutional or statutory violations exists, Congress granted the Justice Department the authority to sue police departments to correct the underlying policies that lead to the misconduct. H.R. Rep. No. 102-242, at 137-138 (1991). Section 14141 authorizes the United States to seek injunctive relief to remedy violations, but does not establish an individual right to damages or provide for any other relief.
On September 13, 2012, following a 14-month investigation, the United States released a Findings Letter, which concluded that systemic deficiencies in PPB’s policy, training, and supervisory oversight mechanisms resulted in a pattern or practice of PPB officers using excessive force against persons who have or are perceived to have mental illness (“the Findings”). See Declaration of Billy J. Williams (hereinafter “Williams Decl.”) ¶ 8. Today, the United States filed a Complaint alleging that PPB is engaged in a pattern or practice of violating the Fourth Amendment and Section 14141 on account of PPB officers’ use of excessive force against persons who have or are perceived to have mental illness. Complaint, ECF #1.
While the City disagrees with these allegations, the parties have nevertheless entered into an Agreement that requires the City and PPB to implement numerous reforms in the following areas to address the alleged systemic deficiencies: use of force policy, training, communitybased mental health services, crisis intervention, employee information system, officer accountability, and community engagement and oversight. Among other things, Defendant has agreed to revise PPB’s use of force policies, restructure crisis intervention efforts, implement new training standards, refine officer accountability systems, and shorten the timeframe for resolving misconduct investigations and citizen complaints, while maintaining the quality of
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investigations, as well as solicit public input in the reform process. The extensive record, described below, demonstrates that the Agreement is tailored to the alleged deficiencies identified by the United States, while also being fair to the concerns of the community and incorporating significant community engagement and oversight. Community input received by the parties also guided the structure of the Community Oversight Advisory Board, which is described in the Agreement. See Williams Decl. ¶¶ 15, 18 and Declaration of Clay Roberts Neal (hereinafter “Neal Decl.) ¶¶ 11, 13, 16. Accordingly, the Agreement is consistent with and furthers the objectives of Section 14141 because it embodies the agreement of the City and its police bureau to ensure that no pattern or practice of police misconduct exists.
The nexus between these agreed-upon reforms and the alleged pattern or practice of constitutional violations in the United States’ Complaint provides strong evidence that the Agreement furthers the purpose of Section 14141 and is therefore fair, adequate, and reasonable. II. The Agreement Is a Result of Arm’s-Length Negotiations, Supported by the
Investigation, and Is Inclusive of Community Input. The process of crafting the Agreement underscores its reasonableness and demonstrates that it is not the product of fraud, collusion, or overreaching. Officers for Justice, 688 F.2d at 625; State of Oregon, 913 F.2d at 580; Cemex Inc., 166 Fed. Appx. at 307 (finding that in a different legal context, that of a consent decree, the decree was negotiated in good faith and at “arm’s length”). All of the Agreement’s provisions derive from intense negotiations between sophisticated parties, which included extensive consideration of community input through written comments, public hearings, and personal and group meetings. See generally Williams Decl.; Neal Decl. The Agreement is not only tailored to the constitutional allegations of excessive force, but also includes the critical element of community engagement and oversight of the Agreement’s implementation, which is necessary for the Agreement’s success. Page 6 - Memorandum in Support of Joint Motion To Enter The Parties’ Settlement Agreement; U.S.
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The parties engaged in intensive negotiations beginning shortly after the United States announced, on September 13, 2012, that its 14-month investigation into PPB’s policies and practices regarding use of force revealed reasonable cause, under Section 14141, to believe that PPB engages in a pattern or practice of excessive force against persons with actual or perceived mental illness. See Williams Decl. ¶8. The United States also identified serious concerns about the lack of trust between PPB and certain minority communities within Portland. Just after the announcement of the Findings, the parties jointly released a Statement of Intent describing the broad concepts that would be included in a court-enforceable settlement agreement. Id. During the negotiations, the parties hosted public conference calls on October 2-3 for two hours each night allowing the public to provide comments and input on the parties’ Statement of Intent. Williams Decl. ¶10. The parties also received written comments via email and hard copy from both individuals and organizations concerning their interests in remedial relief. Id. at ¶13; Neal Decl. ¶5.
The parties carefully considered the public comments in reaching the proposed Agreement that was submitted to City Council for public comment and consideration by Council on November 1, 2012. Id. During that hearing, Council heard from dozens of citizens who testified and received several written submissions of comments from individuals and organizations concerning the proposed Agreement. At the conclusion of the hearing, Mayor Sam Adams invited proposals for amendments to the Agreement and set a further hearing on proposed amendments for November 8, 2012. See Neal Decl ¶¶ 10-11. In between these hearings, City Commissioners and the Justice Department received additional written comments from both individuals and organizations and held individual and group meetings to discuss and address the suggestions and concerns raised within those comments. See Williams Decl. ¶13; Neal Decl.
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¶11. The parties again engaged in additional negotiations regarding amendments arising from public comments and submitted a revised proposal to City Council on November 8, 2012. At that time, City Council heard additional public testimony and received additional written comments. At the conclusion of that hearing, Council unanimously voted to adopt the proposed amendments, and Mayor Adams scheduled a final vote for the Agreement on November 14, 2012. See Neal Decl. ¶12. On November 14, 2012, City Council voted unanimously to approve the Agreement. Id. at ¶14.
The public input that the parties received throughout the process of negotiation was not entirely consistent; nor did the parties incorporate all of the public’s suggestions into the final proposed Agreement. Id. at ¶13. Nevertheless, the parties solicited, considered, and responded to public comment on multiple occasions prior to submitting the original proposed Agreement to City Council, as well as up to and including City Council’s vote to approve the final proposed Agreement on November 14, 2012.
The Agreement reflects the parties’ considered efforts to ensure that the causes of the alleged violations are remedied and do not recur. The parties are well versed in PPB’s practices and have invested significant time considering public comment and negotiating the terms of the Agreement. During this process, both the United States and the City consulted with subject matter experts to ensure that each remedial measure in the Agreement is tailored to address the failures alleged and each measure may be reasonably implemented. This adversarial posture, combined with the respective duties of these government agencies towards those they represent, provides further assurance that the Agreement is fair, adequate, reasonable, and not the product of collusion. Accordingly, the Court may rely upon this posture and these duties in so finding.
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Moreover, the United States’ Findings, following a 14-month investigation, support the fairness, reasonableness, and adequacy of the Agreement. The United States’ investigative team consisted of lawyers and other staff from the Civil Rights Division and the United States’ Attorneys Office for the District of Oregon (collectively, “DOJ”), working closely with police and mental health professionals with expertise in the areas on which the investigation focused. See Williams Decl. ¶2. The City and PPB fully cooperated with the investigation. See Williams Decl. ¶5.
During its comprehensive inquiry, DOJ and its experts gathered information through interviews and meetings with PPB officers, supervisors and command staff, as well as members of the public, City and State officials, and community stakeholders. The investigation included on- and off-site review of a wide array of documents, and two on-site tours in which DOJ personnel and experts accompanied PPB officers on ride-alongs and met with mental health partners and stakeholders. Id. In sum, DOJ reviewed hundreds of thousands of pages of documents, including PPB policies and procedures, training materials, internal use of force reports, public reports, the Independent Police Review (“IPR”) procedures and processes, and investigative files and data generated from PPB databases. Id. The investigation also included hundreds of interviews and meetings with PPB officers, supervisors and command staff, as well as City officials, local community advocates and attorneys, and members of the Portland community at large. See generally Williams Decl. DOJ hosted more than 50 individual interviews with community members as well as a town hall meeting with approximately 75 persons providing public comment. Id. The United States summarized the results of its investigation in its Findings. See Williams Decl. ¶8 While litigation of the City’s liability may create an even more extensive factual record, litigation may not result in such a comprehensive
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Case 3:12-cv-02265-SI Document 4 Filed 12/17/12 Page 10 of 11 Page ID#: 32 Agreement and would no doubt delay the implementation of necessary reforms. The results of DOJ’s investigation establish a more than adequate factual record supporting the legitimacy of the Agreement.
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CONCLUSION
 The proposed Agreement is fair, adequate, reasonable, and not the product of collusion. For the reasons described herein, the parties request that this Court enter the Agreement as an Order of the Court.

DATED this __17th___ day of ___December_______________, 2012.


S. AMANDA MARSHALL United States Attorney District of Oregon

Respectfully submitted,

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division JONATHAN M. SMITH Chief, Special Litigation Section

/s/ Adrian L. Brown ADRIAN L. BROWN BILLY J. WILLIAMS Assistant U.S. Attorneys

/s/ Laura L. Coon LAURA L. COON Special Counsel /s/ R. Jonas Geissler R. JONAS GEISSLER /s/ Michelle A. Jones MICHELLE A. JONES Senior Trial Attorneys

For the City of Portland:

/s/ James H. Van Dyke_____ JAMES H. VAN DYKE City Attorney

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 JCP:LLC:RJG:BDB:ALB DJ 207-61-1
Via email and Hand Delivery Ellen Osoinach, Deputy City Attorney Office of the City Attorney 1221 SW 4th Avenue, Ste 430 Portland, OR 97204

U.S. Department of Justice Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530
September 10, 2015

Re: Periodic Compliance Status Assessment Report for the Settlement Agreement in United States v. City of Portland, No. 3:12-cv-02265-SI
Dear Ms. Osoinach:
The United States has prepared the enclosed periodic compliance status assessment report (hereinafter, ‘Report’) in preparation for our September 14, 2015 meeting with the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC) regarding the City of Portland’s (the City) progress in implementing the parties’ Settlement Agreement, see Collaborative Agreement ¶ 15, Dec. 30, 2013, ECF No. 55-1. This Report also serves as a platform to respond to the Court’s order to “describe to the Court the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end.” Order, July 30, 2015, ECF No. 99. We will provide a copy of this Report to the Court, the AMAC, and the Compliance Officer/Community Liaison (COCL), and we anticipate presenting a copy to the Community Oversight Advisory Board (COAB) at its October meeting. We also plan to post it on our public DOJ website.1 In addition to the comprehensive assessment required pursuant to paragraph 175 of the Settlement Agreement, see ECF No. 4-1 ¶ 175, the United States may provide additional periodic compliance status assessment reports and technical assistance as we monitor the City’s compliance with the Settlement Agreement, pursuant to paragraph 167.
For the attached Report, we reviewed extensive documentation, particularly PPB’s quarterly self-assessment reports from the First Quarter of 2014 through the present. Each quarterly self-report referred to documentation that PPB believes supports its own assessment of compliance. References to “folders” herein are to the City’s individually-numbered electronic folders corresponding to the paragraph(s) of the Settlement Agreement that the documentation reportedly supports. This Report considers the information provided by the City as of August 28, 2015, up to and including the Quarterly Report for the Second Quarter of 2015 and supporting documentation. In addition to document review, we also consulted with our two expert consultants, conducted interviews of City employees, and made personal observations at
1 http://www.justice.gov/crt/special-litigation-section-cases-and-matters0#police
1

City-sponsored meetings (such as the Community and Police Relations Council, Citizens Review Committee, Community Oversight and Advisory Board, Behavioral Health Unit Advisory Committee, and the Training Advisory Council).
As the City is aware, the Effective Date of the Settlement Agreement is August 29, 2014. During this past year, however, the DOJ and City have engaged in additional settlement negotiations regarding the City’s appeal of the Court’s order entering the Settlement Agreement, which was finally resolved on July 30, 2015, when the Court entered an amended Order. To the extent that we have not yet been able to engage in a full assessment of implementation of any particular area of the Settlement Agreement, we have so noted in our analysis.
This Report uses the following color-coded compliance status levels to indicate our current assessment of PPB’s progress in complying with each provision of the Settlement Agreement:
 Blue: compliance rating pending or not measured. This level indicates that either the specific provision does not have a specific measurement to assess, or that the DOJ has not yet been able to fully assess compliance, either due to insufficient documentation provided for assessment, or because DOJ must complete additional analysis/observation of how the specific provision is being implemented.
 Green: substantial compliance with an ongoing obligation. This level indicates that the City has implemented the specific provision as required by the Settlement Agreement, and that the City has an ongoing obligation to continue such action to remain in compliance.
 Yellow: partial compliance with an ongoing obligation. This level indicates that while there has been progress made with implementation, specific areas need further attention in order to reach substantial compliance.
 Red: non-compliance. This level indicates that we have recognized barriers to achieving implementation of the provision that must be addressed to achieve compliance.
The Parties have acknowledged that the systemic reforms required by the Settlement Agreement will take time to implement. See, e.g., Settlement Agreement ¶ 178(a) (anticipating substantial compliance with all provisions by October 12, 2017). Our analysis and technical assistance provided with this Report is intended to both acknowledge the City’s accomplishments achieved thus far in the implementation of the Settlement Agreement and to advise the City on certain course corrections that will help achieve compliance.
As always, we appreciate the various City bureaus’ efforts and progress in implementing the terms of our Settlement Agreement and look forward to a continued cooperative relationship in achieving our mutual goal of sustained constitutional and effective policing in the City of Portland.
2

Sincerely,
BILLY J. WILLIAMS Acting United States Attorney District of Oregon
/s/ Adrian Brown ADRIAN L. BROWN Assistant U.S. Attorney

JUDY C. PRESTON Acting Chief
s/ Laura L. Coon LAURA L. COON Special Counsel
/s/ R. Jonas Geissler R. JONAS GEISSLER Senior Trial Attorney
/s/ Brian Buehler BRIAN BUEHLER Trial Attorney Civil Rights Division Special Litigation Section

Enclosure (as noted)
cc: Ashlee Albies, Esq. (via email and hand delivery) Shauna Curphey, Esq. (via email and hand delivery) Kathleen Sadaat (via email and hand delivery) Dennis Rosenbaum, Ph.D. (via email) Amy Watson, Ph.D. (via email) Tom Christoff (via email)

3

United States v. City of Portland Settlement Agreement Compliance Status Assessment Report –September 10, 2015

Settlement Agreement Heading

Status of Compliance

III. USE OF FORCE

Partial Compliance

A. Use of Force Policy B. Compliance Audits Related to Use of Force IV. TRAINING V. COMMUNITY-BASED MENTAL HEALTH SERVICES VI. CRISIS INTERVENTION A. Addictions and Behavioral Health Unit and Advisory Committee B. Continuation of C-I Program C. Establishing “Memphis Model” Crisis Intervention Team D. Mobile Crisis Prevention Team

Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance

E. Service Coordination Team

Partial Compliance

F. BOEC VII. EMPLOYEE INFORMATION SYSTEM VIII. OFFICER ACCOUNTABILITY
A. Investigation Timeframe B. On Scene Public Safety Statements and Interviews C. Conduct of IA Investigations D. CRC Appeals E. Discipline F. Communication with Complainant and Transparency

Partial Compliance Rating Pending
Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance

IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD

Rating Pending

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X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT A. Compliance Officer/Community Liaison B. PPB Compliance Coordinator C. Access to People and Documents D. Review of Policies and Investigations E. City Reports and Records F. Enforcement

Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance Partial Compliance

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III. USE OF FORCE
PPB shall revise its existing use of force policy and force reporting requirements to ensure that all force, particularly force involving persons with actual or perceived mental illness: (a) is used only in accordance with the Constitution and laws of the United States; (b) is no greater than necessary to accomplish a lawful objective; (c) is properly documented, reported, and accounted for; and (d) is properly investigated, reviewed, evaluated, and, if necessary, remedied. PPB shall attempt to avoid or minimize the use of force against individuals in perceived behavioral or mental health crisis, or those with mental illness and direct such individuals to the appropriate services where possible. In addition, PPB shall ensure that officers use non-force and verbal techniques to effect compliance with police orders whenever feasible, especially in the course of conducting welfare checks or effecting arrests for minor offenses or for persons whom officers have reason to believe are experiencing a mental health crisis; de-escalate the use of force at the earliest possible moment; only resort to those use of force weapons, including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function. To achieve these outcomes, PPB shall implement the requirements set out below.
A. Use of Force Policy
66. PPB shall maintain the following principles in its existing use of force policies:
a. PPB shall use only the force reasonably necessary under the totality of circumstances to lawfully perform its duties and to resolve confrontations effectively and safely; and

Status

Partial compliance – ongoing obligation

Analysis

On October 30, 2013, before finalizing the Settlement Agreement, we approved a version of PPB Directive 1010.00 that was subject to our District Court mediation to resolve the objections to the Agreement by the Portland Police Association (“PPA”) and Albina Ministerial Alliance Coalition (“AMAC”). COCL cited in its initial quarterly report an alleged lack of clarity in Directive 1010.00. We have initiated a review of the current 1010.00 with COCL, and while COCL has offered comments on the policy, COCL has also solicited comments from COAB. COCL wants the benefit of COAB’s comments before finalizing COCL’s own comments. We anticipate COCL’s comments on these policies by the end of October.
Current PPB Directive 1010.00 – Use of Force is available at https://www.portlandoregon.gov/police/article/526353. (PPB’s 2014 Q4 folder for Paragraph 66 and 67 contains an internet shortcut that appears intended to link to PPB Directive 1010.00, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1222945547. PPB’s 2015 Q1 and Q2 data sets each have empty folders for Paragraph 66.) As currently written, Directive 1010.00 meets the fundamental requirements of Paragraph 66(a). In order to demonstrate that PPB has brought to fruition in practice Paragraph 66(a), PPB must be able to fully report on uses of force and audit force reports and investigations. Short of such reporting and auditing, PPB cannot demonstrate implementation of the force policy. Moreover PPB’s accountability system must

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function in a substantially compliant manner to enforce the force policy.
Technical We anticipate offering specific comment on 1010.00 in part based on COCL’s Assistance review and recommendation as approved by a majority vote of the COAB.

b. PPB expects officers to develop and display, over the course of their practice of law enforcement, the skills and abilities that allow them to regularly resolve confrontations without resorting to force or the least amount of appropriate force.

Status

Partial compliance – ongoing obligation

Analysis

On October 30, 2013, before finalizing the Settlement Agreement, we approved a version of Directive 315.30 that was subject to our District Court mediation to resolve the objections to the Agreement by the PPA and AMAC. We anticipate further review of this policy following COCL and COAB review of 1010.00, from which policy PPB split the performance standard into the 315.30 stand-alone policy.
Current PPB Directive 315.30 – Satisfactory Performance is available at https://www.portlandoregon.gov/police/article/525571. (PPB’s 2014 Q4 folder for Paragraph 66 and 67 contained only the internet shortcut related to Directive 1010.00, noted in our Analysis of paragraph 66(a), above. PPB’s 2015 Q1 and Q2 folders were empty.) As currently written, Directive 315.30 meets the requirements of Paragraph 66(b). The concept of a career-long assessment of de-escalation and situation management is laudable. In order to demonstrate that PPB has brought to fruition in practice Paragraph 66(b), PPB must be able to fully report on uses of force and audit force reports and investigations. Short of such reporting and auditing, PPB will hinder its ability to implement and enforce the performance standard. Moreover PPB’s accountability system must function in a substantially compliant manner to enforce the performance standard.

Technical We anticipate offering specific comment on 315.30 in part based on COCL’s Assistance review and recommendation approved by a majority vote of the COAB.

67. PPB shall add to its use of force policy and procedures the following use of force principles:
a. Officers shall use disengagement and de-escalation techniques, when possible, and/or call in specialized units when practical, in order to reduce the need for force and increase officer and civilian safety;
b. In determining whether to use force, officers will take into account all information, when feasible, including behavior, reports, and known history as conveyed to or learned by the officer by any means, indicating that a person has, or is perceived to have, mental illness;

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c. The use of force shall be de-escalated as resistance decreases and the amount of force used, including the number of officers who use force, shall de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force; and
d. Objectively unreasonable uses of force shall result in corrective action and/or discipline, up to and including termination.

Status

Partial compliance – ongoing obligation

Analysis

On October 30, 2013, before finalizing the Settlement Agreement, we approved a version of PPB Directive 1010.00 that was subject to our District Court mediation to resolve the objections to the Settlement Agreement by the PPA and AMAC. However, at that time neither the COCL nor the COAB were in place. Furthermore the Settlement Agreement had not been approved by the Court, and PPB’s implementation of the new policy had just begun. For these reasons, DOJ anticipates further review of this policy following COCL and COAB review of Directive 1010.00, from which policy PPB split the performance standard into this stand-alone policy.
Current Directive 1010.00 – Use of Force is available at https://www.portlandoregon.gov/police/article/526353. (PPB’s 2014 Q4 folder for Paragraphs 66 and 67 contained only the internet shortcut related to Directive 1010.00, noted in our Analysis of paragraph 66(a), above. PPB’s 2015 Q1 and Q2 folders were empty.)
We will provide PPB with a fulsome critique of 1010.00 once COAB and COCL recommendations become available and we provide the below technical assistance at this time.
In order to demonstrate that PPB has implemented in practice Paragraph 67, PPB must be able to fully report on uses of force and audit force reports and investigations. Short of such reporting and auditing, PPB will hinder its ability to implement and enforce the force policy. Moreover, in order to demonstrate that PPB has brought to fruition in practice Paragraph 67(d), PPB’s accountability system must function in a substantially compliant manner. We anticipate offering specific comment on 1010.00 in part based on COCL’s review and recommendation approved by a majority vote of the COAB.

Technical Assistance

The Directive should specifically address disengagement as required by Paragraph 67(a). The Directive should more broadly discuss “specialized units,” per Paragraph 67(a)’s requirements, rather than address only persons in mental health crisis.

We anticipate offering additional specific comment on 1010.00 in part based on COCL’s review and recommendation approved by a majority vote of the COAB.

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1. Electronic Control Weapons
68. PPB shall revise PPB Directive 1051.00 regarding Taser, Less-Lethal Weapon System to include the following principles:
a. Prohibition against the use of ECWs for pain compliance against those suffering from mental illness or emotional crisis except in exigent circumstances, and then only to avoid the use of a higher level of force;
b. Unless it would present a danger to the officer or others, that officers shall issue a verbal warning, or attempt to utilize hand signals where there is a language barrier or the subject is hearing impaired, prior to deploying their ECW;
c. Officers shall follow protocols developed by PPB in conjunction with medical professionals on their responsibilities following ECW use;
d. Only one ECW at a time may be used on a subject, intentionally, except where lethal force would be permitted;
e. After one standard ECW cycle (5 seconds), the officer shall reevaluate the situation to determine if subsequent cycles are necessary, including waiting for a reasonable amount of time to allow the subject to comply with the warning. Officers shall describe and explain the reasonableness of each ECW cycle in their use of force reports;
f. Officers shall make every reasonable effort to attempt handcuffing during and between each ECW cycle. Officers should avoid deployments of more than three ECW cycles unless exigent circumstances warrant use;
g. ECWs shall not be used on handcuffed or otherwise restrained persons, unless doing so is necessary to prevent them from causing serious physical injury to themselves or others, or if lesser attempts of control have been ineffective and/or to avoid greater application of use of force; and
h. Officers receive annual ECW in service training including proficiency and policy changes, if any.

Status

Partial compliance – ongoing obligation

Analysis

On October 30, 2013, before entry of the Settlement Agreement, we approved a version of 1051.00 that was subject to our District Court mediation to resolve the objections to the Agreement by the PPA and AMAC. We anticipate further review of this policy following COCL and COAB review of 1010.00.
Current PPB Directive 1051.00 Electronic Control Weapon System is available at https://www.portlandoregon.gov/police/article/526392. (PPB’s 2014 Q4 folder for Paragraph 68 contains an internet shortcut that appears intended to link to Directive 1051.00, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1222945615. PPB’s 2015 Q1 and Q2 data sets each have empty folders for Paragraph 68.)
We will provide PPB will a fulsome critique of 1051.00 once COAB recommendations become available but provide the below technical assistance at this time.

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In order to demonstrate that PPB has brought to fruition in practice Paragraph 68, PPB must be able to fully report on uses of force and audit force reports and investigations. As discussed below, the PPB Inspector did not conduct the required specialized audit of ECW use. See Paragraph 74 discussion, below. Short of such reporting and auditing, PPB will hinder its ability to implement and enforce the ECW policy.
We have not yet substantively assessed ECW training. Paragraph 68(h) requires training for proficiency and policy changes. In coming months we will assess curriculum, scenario-based training, and training attendance records.

Technical Assistance

The Directive does not require PPB members to utilize hand signals where there is a language barrier or the subject is hearing impaired as required by Paragraph 68(b). Paragraph 68(d) only permits the intentional use of more than one ECW at the same time in situations when “lethal force” would be permitted. Directive 1051.00, Section 2.11 lessens this standard for simultaneous use to avoid the need for a “higher level of force.” This provision serves as its own justification, i.e., an officer may deem two, intentional, simultaneous uses necessary whether or not lethal force would have been within policy. Directive 1051.00 omits Paragraph 68(f)’s prohibition of more than three ECW cycles absent exigency. Cf. Directive 1051.00, Section 1.9. Commendably, PPB’s prohibition on ECW use against restrained subjects is slightly more restrictive than Paragraph 68(g) describes. See Directive 1051.00, Section 2.5.

We anticipate offering additional specific comment on 1051.00 in part based on COCL’s review and recommendation approved by a majority vote of the COAB.

2. Use of Force Reporting Policy and Use of Force Report
69. PPB shall revise its policies related to use of force reporting, as necessary, to require that:
a. All PPB officers that use force, including supervisory officers, draft timely use of force reports that include sufficient information to facilitate a thorough review of the incident in question by supervisory officers; and
b. All officers involved or witnesses to a use of force provide a full and candid account to supervisors.

Status

Partial compliance – ongoing obligation

Analysis

On October 30, 2013, before finalizing the Settlement Agreement, we approved a version of PPB Directive 1010.00 that was subject to our District Court mediation to resolve the objections to the Settlement Agreement by the PPA and AMAC. We anticipate further review of this policy following COCL and COAB review of Directive 1010.00, and we provide the below technical assistance at this time.
Section 9.4 of Directive 1010.00 requires members to report other officers’ uses of force that violate the constitutional standard. A recently reported juvenile court trial has called into question whether this occurred. Going forward, we will more

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comprehensively assess whether PPB has met this standard.
As discussed herein, PPB failed to timely collect complete Force Data Collection Reports in both officer involved shootings from 2015 for which we requested data. See Paragraph 74 discussion, below. Subsequent interviews with detectives and representatives from Internal Affairs cannot substitute for the narrative portion of Force Data Collection Reports.
Policies 1010.10 Post Deadly Force Procedures and 416.00 Post Officer Involved Deadly Force are currently under review.

Technical Assistance

Current PPB Directive 1010.00 includes force reporting provisions in Sections 8.1.3 and 9. See Directive 1010.00, available at https://www.portlandoregon.gov/police/article/526353. (Note that PPB’s 2014 Q4 folder for Paragraph 69 contains an internet shortcut that appears intended to link to Directive 940.00 After Action Reports, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1222945300. PPB’s 2015 Q1 and Q2 data sets each have an empty folder for Paragraph 69.)

These reporting provisions are deficient in that PPB does not, but must, include a timeliness requirement, e.g., before the end of the officer’s shift, unless incapacitated. See ibid at Section 9.2 (not including the required timeliness for Force Data Collection Reports).

PPB must ensure timely, complete, and accurate Force Data Collection Reports.

We anticipate offering specific comment on 1010.10 and 416.00 in part based on COCL’s review and recommendation approved by a majority vote of the COAB.

3. Use of Force Supervisory Investigations and Reports
70. PPB shall continue enforcement of Directive 940.00, which requires supervisors who receive notification of a force event to respond to the scene, conduct an administrative review and investigation of the use of force, document their findings in an After Action Report and forward their report through the chain of command. PPB shall revise Directive 940.00 to further require that supervisory officers:
a. Complete After Action Reports within 72 hours of the force event;
b. Immediately notify his or her shift supervisor and PSD regarding all officer’s[‘] Serious Use of Force, any Use of Force against persons who have actual or perceived mental illness, or any suspected misconduct. Where the supervisor suspects possible criminal conduct, the supervisor shall notify the PPB Detective Division. Where there is no misconduct, supervisors also shall determine whether additional training or counseling is warranted. PPB shall then provide such counseling or training consistent with this Agreement;
c. Where necessary, ensure that the subject receives medical attention from an appropriate medical provider; and
d. Interview officers individually and not in groups.
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Status

Partial compliance – ongoing obligation

Analysis

This provision requires continued adherence to Directive 940.00. Based on our review of data PPB produced related to two separate officer involved shootings, as described herein, supervisors failed to use the checklist and conduct the required after action review in both instances. See Directive 940.00, Paragraph 1.5 (requiring an after action report for all non-training, non-negligent firearm discharges), available at https://www.portlandoregon.gov/police/article/534096. Compare Paragraph 74 discussion, below. To the extent that PPB views the Detective Division’s investigation of these incidents as a substitute for the supervisor’s After Action Report, the Settlement Agreement does not provide an exception to the 940 review.
Separately, we brought a recording of the following incident to the City’s attention: PPB detained a person in mental health crisis at a mental health treatment facility, and the individual complained of pain and injury. See https://www.youtube.com/watch?v=NaL196SvFpY. PPB informs us that the supervisor did not undertake a 940 review, even though a Sergeant was on the scene.
We will continue to review documentation of PPB’s implementation of Directive 940.00 pursuant to our ongoing monitoring..
Note: PPB’s 2014 Q4 data set does not have a folder for Paragraph 70, and PPB’s 2015 Q1 data set has an empty folder for Paragraph 70.

Technical PPB must ensure that supervisors complete after action reports with fidelity to the Assistance requirements of the Settlement Agreement.
Going forward, we expect COCL to develop a statistically valid methodology for auditing after action reports with the Force Inspector. The United States will separately assess compliance through a sampling of after action reports.

71. PPB shall maintain adequate patrol supervision staffing, which at a minimum, means that PPB and the City shall maintain its current sergeant staffing level, including the September 2012 addition of 15 sergeants.

Status

Compliance rating pending – insufficient documentation

Analysis

PPB asserts in the compliance report that the Bureau continues to maintain the supervisory staffing levels necessary to meet this requirement. PPB’s 2014 Q4 compliance report for Paragraph 71 refers to a staffing chart, but PPB’s 2014 Q4 data set does not have a folder for Paragraph 71; PPB’s 2015 Q1 and Q2 data sets each have an empty folder for Paragraph 71. Accordingly, we do not yet have sufficient documentation to assess compliance with this provision.
We note that on June 16, 2015, the PPA filed a grievance regarding PPB’s staffing level and seeking more patrol officers. We take no position on the grievance or

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grievability of the PPA’s claim. We mention this action, however, to stress that if any resolution of the PPA’s grievance requires additional patrol officers, PPB must have a concomitant increase in supervisors sufficient to maintain the staffing ratio established in November 2012.
Technical PPB should provide data on current patrol supervision staffing by precinct and Assistance shift.

72. PPB shall develop a supervisor investigation checklist to ensure that supervisors carry out these force investigation responsibilities. PPB shall review and revise the adequacy of this checklist regularly, at least annually.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set for Paragraph 72 contains the checklist as an MS Word file. This checklist complies with this provision and the requirement set forth for after action reviews in Paragraph 70, above.
Commendably, the checklist requires the supervisor to meet at another location if the supervisor cannot make the scene of the use of force reasonably safe to conduct the force investigation. This anticipates an obstacle to compliance with Paragraph 70 that the Parties did not anticipate in drafting the Settlement Agreement.
The checklist includes provisions about “collecting” recordings of the force used or being “unable” to collect them. It is our understanding that videos from PPB cruisers and PPB’s body camera pilot project are recorded digitally and in PPB’s possession. PPB after action reports should: (1) ensure that such devices were operable and used by the officers; and (2) ensure that officers code the captured recording properly to associate correctly with the force event for late review.
The checklist includes a provision that the supervisor applied all standards listed in Directive 940.00. Section 3.4.2.3 of that policy requires supervisors apply a “best practices” review. As discussed herein, however, the Force Inspector wrote in the Audit that the Inspector would not hold supervisors responsible for a “best practices” review. See Paragraph 74 discussion, below. To reconcile the paradox between the checklist and the Audit, the Inspector must review for “best practices” as required by the Settlement Agreement. See Settlement Agreement, ¶ 75(e). To the extent that this standard requires further clarification, we look forward to discussing it with the City.
Based on the review of data PPB produced related to two separate officer involved shootings, as described herein, supervisors failed to use the checklist and conduct the required after action review in both instances. See Directive 940.00, Paragraph 1.5 (requiring an after action report for all non-training, non-negligent firearm discharges), available at https://www.portlandoregon.gov/police/article/534096. Compare Paragraph 74 discussion, below. Though PPB developed an appropriate checklist, PPB failed to properly utilize the checklist in both instances.

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PPB’s 2015 Q1 and Q2 data sets each have empty folders for Paragraph 72.
Technical PPB must ensure supervisors comply with checklist use even in critical incidents. Assistance PPB should consider updating its checklist to reflect use and coding of digital
recording devices. PPB must apply best practices to its after action reviews and audit that standard.

73. PPB shall revise its policies concerning chain of command reviews of After Action Reports, as necessary, to require that:
a. EIS tracks all Directive 940.00 comments, findings and corrections;
b. All supervisors in the chain of command are subject to and receive corrective action or discipline for the accuracy and completeness of After Action Reports completed by supervisors under their command;
c. All supervisors in the chain of command are accountable for inadequate reports and analysis;
d. A supervisor receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position when he or she repeatedly conducts deficient investigations. Where a shift commander, or precinct commander, repeatedly permits deficient investigations, the shift commander, or precinct commander, receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position;
e. When, after investigation, a use of force is found to be out of policy, PPB shall take appropriate corrective action consistent with the Accountability provisions of this Agreement;
f. Where the use of force indicates policy, training, tactical, or equipment concerns, the immediate supervisor shall notify the Inspector and the Chief, who shall ensure that PPB timely conducts necessary training and that PPB timely resolves policy, tactical, or equipment concerns; and
g. The Chief or designee, as well as PSD, has discretion to re-assign a use of force investigation to the Detective Division or any PPB supervisor.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set has a folder for Paragraph 73 containing two documents. (1) An email simply stating that PPB member conducted an “EIS review” of North Precinct. This email does not provide any further data. (2) An outline for Inspector discussion of EIS Training of Supervisors. This document does not speak to the policy required by Paragraph 73, but may inform discussion of implementation of policy. Commendably, the Inspector’s outline points out to supervisors that “Officers deserve a thorough investigation.” PPB’s 2015 Q1 and Q2 data sets each have an empty folder for Paragraph 73.

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The current Directive 940.00 is available at https://www.portlandoregon.gov/police/article/534096. In significant part Directive 940.00 addresses the requirements of Paragraph 73(b)-(g) with respect to supervisory accountability. See Directive 940.00, Section 5. PPB Directive 940.00 states some of these provisions regarding corrective action in passive voice, however. PPB should place the responsibility for corrective action squarely on the chain of command, as contemplated in Paragraph 73.
Section 5 of Directive 940.00 does not address supervisors’ obligations with respect to submitting into the Employee Information System comments, findings, and corrections from after action reviews. This is a necessary step to meet the tracking requirements of Paragraph 73(a). The mere cross reference to the Employee Information System Directive 345.00 in the header to 940.00 is insufficient. PPB personnel are left to guess what PPB intends by that reference. Directive 345.00, Section 4.2 requires supervisors to make entry into the EIS in some instances based on corrective action stemming from after action reviews (i.e., 940s). Directive 345.00 does not, on its own, meet the broader recordation requirements of Paragraph 73(a).
As discussed herein, the officer involved shooting data requests demonstrated PPB’s failure to complete after action reviews. See Paragraph 74 discussion, below. PPB is obliged by Paragraph 73(b) to take corrective action. Paragraph 73(g) does not obviate the Settlement Agreement’s requirement of an after action review in those instances. The data requests demonstrated that there were no after action supervisor checklists and, even if there had been, the detectives’ partially untimely investigations in those instances did not meet the completeness requirements of Directive 940.00 or the chain of command review requirements of Paragraph 73.
Technical PPB should restate Directive 940.00, Section 5 to place responsibility for corrective Assistance action on the chain of command.
PPB must include Paragraph 73(a)’s requirements to track all Directive 940.00 comments, findings and corrections in both the supervisors’ responsibilities for after action reports and in the EIS operation.
PPB must, as an organization, ensure compliance with the after action reporting and supervisory review, even in serious use of force events.
B. Compliance Audits Related to Use of Force
74. In consultation with the COCL, the Inspector, as part of PPB’s quarterly review of force, will audit force reports and Directive 940.00 Investigation Reports to ensure that:
a. With respect to use of force generally:
i. reports describe the mental health information available to officers and the role of that information in their decision making;
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ii. officers do not use force against people who engage in passive resistance that does not impede a lawful objective;
iii. when resistance decreases, officers de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force;
iv. officers call in specialty units in accordance with procedure;
v. officers routinely procure medical care at the earliest available opportunity when a subject is injured during a force event; and
vi. officers consistently choose options reasonably calculated to establish or maintain control with the least amount of appropriate force.
b. With respect to ECW usages:
i. ECW deployment data and Directive 940.00 reports are consistent, as determined by random and directed audits. Discrepancies within the audit should be appropriately investigated and addressed;
ii. officers evaluate the reasonableness and need for each ECW cycle and justify each cycle; when this standard is not met, this agreement requires supervisor correction;
iii. officers are universally diligent in attempting to use hands-on control when practical during ECW cycles rather than waiting for compliance; and
iv. officers do not attempt to use ECW to achieve pain compliance against subjects who are unable to respond rationally unless doing so is reasonably calculated to prevent the use of a higher level of force.
c. With respect to use of force reporting, the reports:
i. are completed as soon as possible after the force incident occurs, but no later than the timeframes required in policy;
ii. include a detailed description of the unique characteristics of the event, using common everyday language, sufficient to allow supervisors to accurately evaluate the quality of the officer’s decision making and performance;
iii. include a decision point description of the force decision making;
iv. include a detailed description of the force used, to include descriptive information regarding the use of any weapon;
v. include a description of any apparent injury to the suspect, any complaint of injury, or the absence of injury (including information regarding any medical aid or on-scene medical evaluation provided);
vi. include the reason for the initial police presence;
vii. include a description of the level of resistance encountered by each officer that led to each separate use of force and, if applicable, injury;
viii. include a description of why de-escalation techniques were not used or whether they were effective;
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Status Analysis

ix. include whether the individual was known by the officer to be mentally ill or in mental health crisis;
x. include a general description of force an officer observes another officer apply; and
xi. demonstrate that officers consistently make diligent efforts to document witness observations and explain when circumstances prevent them from identifying witnesses or obtaining contact information. Reports will include all available identifying information for anyone who refuses to provide a statement.
Partial compliance – ongoing obligation
These audits require consultation between the Inspector and COCL. PPB was hindered in its ability to fully comply with this provision by the length of time it has taken the City to retain COCL and the time for COCL to establish its operations, given the COCL’s dual purpose to serve as both a compliance officer and working with the COAB as a community liaison.
On July 30, 2015, PPB advised DOJ that PPB is encountering a data problem in the recording of its force and interaction data that inhibits PPB’s ability to analyze these data. PPB switched to the “RegJIN” data recording system from a former customized, but antiquated database. The switch has resulted in a data gap from May 2015 to present, wherein PPB officers reportedly have completed FDCRs, but PPB analysts have to manually enter the data into RegJIN. RegJIN also has a geocoding error even for newly created FDCRs in which RegJIN fails to accurately recognize abbreviations for streets and locations. PPB does not have a defined timeline by which to enter the data backlog or fix the geocoding issue. PPB has been forthright, however, in advising on the limitation PPB has discovered in RegJIN and is working on finding solutions to both problems. It currently appears that PPB is unable to perform its required audits and use data to manage its interactions and allocation of resources until PPB resolves the RegJIN data problems.
In its July 9, 2015 first quarterly report on compliance, COCL recommended that PPB’s Force Inspector change PPB’s force audits for Paragraphs 74-77. See COCL report, at 32. (COCL offered a similar recommendation in its May 4, 2015 draft report, to which we responded with formal comment pursuant to Paragraph 163.) In our June 12, 2015 letter to COCL, we reminded COCL of its responsibility for “an active role going forward in shaping audits and analyses with the inspector,” pursuant to Paragraphs 74-77. See DOJ Comments, at 2. The Settlement Agreement requires that COCL and the Inspector work “in consultation” on the required audits of FDCRs and 940s. Thus, PPB and the COCL should actively engage with one another in developing the sample size and methodology for the audits and discuss the qualitative assessments of the sample with COCL’s police practices expert. If PPB has concerns about such consultation, we recommend that PPB consult with DOJ at the time the concern arises.
PPB’s 2014 Q4 data set has a folder with five items for Paragraph 74:

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1. A January 2015 memo from the Force Inspector explaining that COCL has not yet collaborated on a methodology for audits but a meeting is set and an explanation of staffing level and logistical challenges with paper-based records.
2. A January 2015 job listing for a crime analyst.
3. A July 1, 2014 to September 30, 2014 force data summary. The Inspector identified an increase in PPB officers’ use of takedowns in the summary. Disappointingly, however, the Inspector largely presented generalized speculation about possible causes of the increase. The Inspector provided one solid data point: 57 Force Data Collection Reports for the takedowns of 28 individuals. Although multiple reports may increase PPB’s count for the number of takedowns, each PPB officer should already have been completing force reports for force actions in which they took part. The Inspector’s speculation leads the reader to believe that the Inspector has identified a cause. In fact, there may simply have been an actual increase in takedowns, not just reporting. The Inspector did not audit to find out which was the case. Significantly, in this form, the Inspector also notes that four force cases “were referred”—we do not know by whom based on the Inspector’s writing—to Internal Affairs (“IA”). The Inspector notes that while IA is conducting investigation of two of those force instances, IA declined one force incident and IA is conducting additional intake to determine whether or not to open an investigation. The Inspector should be well aware of the Settlement Agreement’s accountability requirements. IA does not have the authority to decline any force investigation. See Paragraph 129.
4. July 1 through September 30, 2014 demographic data providing an overview of the ethnicity and gender of people against whom PPB has employed force in each of PPB’s categories of uses of force. This is not required by paragraph 74(a)-(c). Nonetheless these are useful data.
5. Force Data Summary Graphs. These graphs cover only three months. A longer term graphing using the already available data may assist the Inspector in identifying trends.
PPB’s 2015 Q1 data set has a folder with four items for Paragraph 74:
1. January 1 through March 31, 2015 demographic data provides an overview of the ethnicity and gender of people against whom PPB has employed force in each of PPB’s categories of uses of force. This is not required by paragraph 74(a)-(c). Nonetheless these are useful data.
2. The Force Inspector audit of force reports and force investigations from January 1 to March 31, 2015. PPB has posted this same report online. See https://www.portlandoregon.gov/police/article/533601
- The Inspector employed a sampling methodology, namely selecting at random only two of each type of force for auditing. See Audit at 3-4. As COCL has already expressed to DOJ, this small sample is
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statistically invalid. As noted above, the COCL must take an active role in shaping this and other aspects of the audit going forward.
- The audit specifically excluded the two officer-involved shootings, stating that such uses of force are already subjected to internal affairs review and, therefore, not subject to after action reports, i.e., 940’s. Audit at 5. This is wrong. Settlement Agreement Paragraph 70(b) requires that supervisors make notifications under their 940 investigations for all “Serious Uses of Force.” The Settlement Agreement defines Serious Uses of Force to include all force with a substantial risk of causing death and those causing significant injury. Paragraph 58. The Inspector should include in the audit whether After Action Reports occur as required by PPB’s own policy and the Settlement Agreement.
Additionally, in excluding lethal uses of force from the audit, among other things, the audit reached the faulty finding that PPB officers, “consistently completed their force reports immediately upon the completion of the incident.” Audit at 6. That statement may prove true in a statistically valid sample of force reports generally, but in the case of officer-involved shootings, PPB officers routinely refuse to complete force data collection reports as required by PPB’s own policy and the Settlement Agreement. This has been a perennial failing that the Inspector should readily identify in the following quarter’s audit.
June 28, 2015 Officer-Involved Shooting Investigation
For example, on June 30, 2015 we requested documents regarding a June 28, 2015 officer-involved shooting. PPB provided us the compiled data through July 7, 2015. Both involved officers’ force data collection reports are dated July 2, 2015. The FDCRs were, therefore, not timely as required by Settlement Agreement Paragraph 69. The FDCRs also states “LEGAL MANDATE The United States Department of Justice mandates the collection of data on the use of force.” In those late reports, the officer failed to provide the required narrative; instead they refer to later interviews with IA. This, too, contravenes the requirements of Settlement Agreement Paragraph 69.
PPB’s data file included a transcript of the interviews for the two officers. Each of the transcribed interviews PPB provided to us, conducted with the officers’ legal counsel, was divided into voluntary statements and Garrity-compelled1 statements (PPB did not provide the Garrity-protected portion of the interview, if IA completed one). Thus, by deferring any narrative in a timely and complete FDCR, PPB forewent any meaningful non-Garrity-protected, ministerial force reports as required by PPB’s own policy and the Settlement Agreement.
1 See Garrity v. New Jersey, 385 U.S. 493 (1967); Paragraph 124 discussion, below.
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Instead, PPB obtained late, incomplete FDCRs with inadequate reference to an allegedly Garrity-protected interview and no data of any utility. In addition, there was no chain-of-command review of the FDRCs and after action report (i.e., 940s). The Force Inspector should identify this major deficiency in the upcoming audit.
Moreover, even if the officers had properly filled in the FDCRs, the forms themselves do not even have the appropriate data field for discharge of a firearm; the form lists “pointing of firearm,” but not discharge as a force data point. The Inspector should advise PPB to take the steps necessary to capture this data as well.
May 17, 2015 Officer-Involved Shooting Investigation
On June 30, we also repeated an earlier request regarding a May 17, 2015 officer-involved shooting. Like the other incident described above, PPB’s data production included an FDCR by the involved officer submitted on May 20, three days after the incident, not timely as required by Settlement Agreement paragraph 69. The FDCR merely referred to an interview that was to occur but provided no description of the event, also not in conformance with Settlement Agreement paragraph 69. The FDCR form contained the same admonition characterizing force reporting as a legal mandate from Department of Justice rather than PPB’s own policy. The form likewise did not contain an adequate data field to capture discharge of a firearm. Importantly, even though the May 17 officer-involved shooting concerned a person cutting himself, the involved officer responded “NO” to all five mental health indicator questions on the FDCR. The Inspector should scrutinize the FDCRs concerning serious uses of force to ensure the accuracy of reporting and assist PPB’s management in effectively governing uses of force, as required by Settlement Agreement Paragraph 74(a)(i). In the end, the involved officer’s interview appears to have been voluntary and not Garrity-compelled.
An involved Sergeant also filled in an FDCR on May 19 for the May 17 incident. Like the others, that FDCR simply refers to a later interview and provides no substantive narrative. Also similar to the involved officer, the Sergeant’s FDCR marks unknown for the subject’s mental health and “NO” to the other four mental health indicators.
The data file for the May 17 incident included communication restriction orders for the involved PPB members and, apparently, the witness officers. Curiously, however, the file contained a series of memos dated June 9, 2015 from internal affairs lifting the communication restriction orders retroactively to June 1. PPB explains that the subject officers were informed orally on June 1 of the lifting of the CROs, even though the memoranda were not printed until June 9. The involved PPB members gave their recorded interviews on May 19 and 20, before the lifted restriction.
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The data file for the May 17 incident also includes a supervisor’s checklist. This is a useful tool, but did not ensure that PPB took all required actions in this case. The checklist should prompt the supervisor to include pictures of the subject’s injuries in the data file. The checklist reminds the supervisor to request on-scene interviews with the involved officers and document the response. Importantly, the checklist does not include a public safety statement. Unsurprisingly, then, the data file also does not contain public safety statements by the involved officers as required by PPB’s own policy and Settlement Agreement Paragraph 126.
The Inspector should not disregard lethal force investigations. To the contrary, the Inspector should identify all of the problems that we outline to fulfill the Inspector’s Settlement Agreement-defined role and help bring PPB into compliance. These incidents are among PPB’s most high profile uses of force. If they are justifiable, then PPB’s failure to abide by its own policies for timely FDCR’s, public safety statements, and the like cast an unjustified pallor over the officers’ actions.
- The Inspector states that it is unrealistic to expect supervisors to apply best practices in their 940 reviews. Audit at 7. The Inspector, therefore, gives a pass to supervisors for this Settlement Agreement requirement. Paragraph 75(e). The Inspector does not have the authority to do so and must revise its methodology.
- Commendably, the Inspector has identified some issues and suggested resolutions even in the early quarterly audit.
- The Inspector did not identify trends as required by Settlement Agreement Paragraph 76, although this audit was so early in the process that trends would be difficult to recognize. Given that COCL has already opined that the Inspector’s sample size was too small, however, this audit failed to establish a statistically valid baseline from which to identify trends going forward.
- The Inspector offered brief mention of unidentifiable samples from the inspector’s qualitative assessments of FDCRs and 940s, but provided no underlying data of the qualitative assessments in the audit. Paragraphs 74 and 75 require such qualitative assessments.
- The Inspector’s samples included ECW (i.e., Taser) use, but the audit does not mention summary findings for any of the ECW-specific qualitative assessments required by Settlement Agreement Paragraph 74(b). Given that there is no underlying data for the qualitative assessments, the audit does not support that PPB actually performed any of the requirements of Paragraph 74(b), as opposed to the general force assessments under 74(a).
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3. Q1 Force Data Summary for January 1 to March 31, 2015.
- These are quantitative data that could help the Inspector identify issues for qualitative analysis. For example, the report lists three instances of ECW use over three cycles. The Inspector could analyze this data set for its audit pursuant to Paragraph 74(b). The report also identifies 51 incidents of “force” without custody, which would include the active targeting with a firearm. From this set, the Inspector could identify whether any instances of force without custody occurred beyond active targeting and if so, why.
4. Force Data Summary Graphs
- These graphics illustrate the significantly higher uses of force in East Precinct. The Inspector could use these data to identify the issue and seek out root causes of the disparity in force use in its next audit.
The 2015 Q2 data set does not contain any documents in the folder corresponding to Paragraph 74.

Technical Assistance

The Force Inspector and COCL should consult to develop statistically valid sample sizes for force audits. A valid sample size is necessary to establish a baseline for trends going forward. Any concerns regarding such consultation should be brought to our attention.

The Inspector should make sure that 940s occur as required by PPB’s own policy and the Settlement Agreement.

The Inspector should not speculate as to root causes, but should endeavor to develop evidence to establish the root causes of identifiable deleterious trends and systemic problems.

The Inspector should identify failures to comply with accountability requirements identified in the course of the Inspector’s audits.

The Force Inspector must review uses of deadly force, including reporting requirements.

The Force Inspector must identify deficiencies in PPB’s force reporting system that undermine the public confidence in PPB.

PPB’s failure to abide by its own policy requiring Force Data Collection Reports in uses of deadly force serves to undermine the public confidence in PPB.

The Inspector must specifically audit ECW use as required by the Settlement Agreement.

The Inspector should provide at least a sample of the qualitative analysis done for the audits, including corrective action when the Inspector identified deficient FDCRs, supervisory reviews, and 940s. The Inspector should use the Settlement Agreement provisions to create a checklist for qualitative analysis and use completed checklists to provide a data sample.

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PPB should bring to fruition the Inspector’s suggestions, contained in the audit, regarding establishing processes for corrective action.

75. In consultation with the COCL, the Inspector shall audit force reports and Directive 940.00 investigations to determine whether supervisors consistently:
a. Complete a Supervisor’s After Action Report within 72 hours of notification;
b. Review all use of force reports to ensure they include the information required by this Agreement and PPB policy;
c. Evaluate the weight of the evidence;
d. Use a “decision-point” approach to analyze each use of force;
e. Determine whether the officer’s actions appear consistent with PPB policy, this Agreement, and best practices;
f. Determine whether there was legal justification for the original stop and/or detention;
g. Assess the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options;
h. Determine whether additional training or counseling is warranted;
i. Implement corrective action whenever there are material omissions or inaccuracies in the officers’ use of force report, and for failing to report a use of force, whether applied or observed;
j. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, or poor tactical decisions in EIS;
k. Notify PSD and the shift supervisor of every incident involving an officer’s Serious Use of Force, and any Use of Force that could appear to a reasonable supervisor to constitute misconduct; and
l. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear to a supervisor that an officer engaged in criminal conduct.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set has a folder for Paragraph 75 that contains the same memo from the Inspector provided for Paragraph 74. The same analysis provided above for Paragraph 74 also applies here.
PPB’s 2015 Q1 data set has a folder for Paragraph 75 that contains the same Inspector audit provided for Paragraph 74. The same analysis provided above for Paragraph 74 also applies here.
PPB’s 2015 Q2 data set has an empty folder for Paragraph 75.

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Technical The same technical assistance provided for Paragraph 74 applies here. Assistance

76. In consultation with the COCL, the Inspector shall conduct a quarterly analysis of force data and supervisors’ Directive 940.00 reports designed to:
a. Determine if significant trends exist;
b. Determine if there is variation in force practice away from PPB policy in any unit;
c. Determine if any officer, PPB unit, or group of officers is using force differently or at a different rate than others, determine the reason for any difference and correct or duplicate elsewhere, as appropriate;
d. Identify and correct deficiencies revealed by the analysis; and
e. Document the Inspector’s findings in an annual public report.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set does not have a folder for Paragraph 76.
PPB’s 2015 Q1 data set has a folder for Paragraph 76 that contains the same Inspector audit provided for Paragraph 74. The same analysis provided above for Paragraph 74 also applies here.
PPB’s 2015 Q2 data set has an empty folder for Paragraph 76.

Technical The same technical assistance provided for Paragraph 74 applies here. Assistance

77. In consultation with the COCL, the Inspector shall audit the adequacy of chain of command reviews of After Action Reports using the following performance standards to ensure that all supervisors in the chain of command:
a. Review Directive 940.00 findings using a preponderance of the evidence standard;
b. Review Directive 940.00 reports to ensure completeness and order additional investigation, when necessary;
c. Modify findings as appropriate and document modifications;
d. Order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings and counsel the investigator;
e. Document any training deficiencies, policy deficiencies, or poor tactical decisions, ensure a supervisor discusses poor tactical decisions with the officer and ensure the discussion is documented in EIS;

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f. Suspend an investigation immediately and notify the branch Assistant Chief, the Director of PSD, and the Detectives Division whenever the investigating supervisor, shift commander or Division commander finds evidence of apparent criminal conduct by a PPB officer; and
g. Reports a matter to PSD for review and investigation whenever an investigating supervisor, shift commander or precinct commander finds evidence of apparent misconduct by a PPB officer or employee.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set does not have a folder for Paragraph 77.
PPB’s 2015 Q1 data set has a folder for Paragraph 77 that contains the same Inspector audit provided for Paragraph 74. The same analysis provided above for Paragraph 74 also applies here.
PPB’s 2015 Q2 data set has an empty folder for Paragraph 77.

Technical The same technical assistance provided for Paragraph 74 applies here Assistance

IV. TRAINING
78. All aspects of PPB training shall reflect and instill agency expectations that officers are committed to the constitutional rights of the individuals who have or are perceived to have mental illness whom they encounter, and employ strategies to build community partnerships to effectively increase public trust and safety. To achieve these outcomes, PPB shall implement the requirements below.

Status

Partial compliance – ongoing obligation

Analysis PPB did not include a folder for Paragraph 78 in either its 2014 Q4 data set, its 2015 Q1 data set, or its 2015 Q2 data set.

Technical In order to comply with Paragraph 78, PPB must comply with all of Section IV. Assistance To further public trust, we recommend that training protocols be made publically
available, to the extent possible.

79. The Training Division shall review and update PPB’s training plan annually. To inform these revisions, the Training Division shall conduct a needs assessment and modify this assessment annually, taking into consideration: (a) trends in hazards officers are encountering in performing their duties; (b) analysis of officer safety issues; (c) misconduct complaints; (d) problematic uses of force; (e) input from members at all levels of PPB; (f) input from the community; (g) concerns reflected in court decisions; (h) research reflecting best practices; (i) the latest in law enforcement trends; (j) individual precinct needs; and (k) any changes to Oregon or federal law or PPB policy.
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Status Analysis

Partial compliance – ongoing obligation
In PPB’s 2014 Q4 data set, PPB provided a 2014 draft training assessment dated January 13, 2015. In PPB’s 2015 Q1 data set, PPA provided the final version of this training assessment published on February 18, 2015. This assessment is partially compliant, but some areas require renewed attention from PPB.
Even though Portland just settled this use-of-force litigation with the United States, and even though there have been recent reported findings of uses of excessive force in a civil case and a juvenile case, the training assessment found that there were “no identified training needs at this time as these processes were implemented in late 2014,”with respect to “problematic uses of force.” See report at 22. To be certain, PPB’s assessment identified perennial training needs on usual perishable force skills, but PPB’s assessment affirmatively declares that its methodology identified no problems. Given the facts known about problematic uses of force under existing training, this conclusion cannot be correct.
The training assessment states that its authors2 reviewed Independent Police Review (“IPR”) reports on complaints and did not reach any conclusion on training needs, but said the division would consult with internal affairs. See report at 21. This is an incomplete assessment as it: (1) did not reach any conclusions; and (2) looked to consult with IA, but not IPR.
The training assessment describes what the Training Advisory Council (“TAC”) is, see report at 26, but gives the TAC no role in the training assessment. Rather TAC’s only definite role is coordinating live actors. Ibid. Paragraph 79 specifically requires that PPB take community input into consideration in constructing its training assessment. PPB’s 2014 Q4 data set included a training status update for October to December 2014. Similarly PPB’s 2015 Q1 data set included a training status update for January to March 2015. Both reports provide some insight into the efforts PPB is making to comply with Section IV of the Settlement Agreement. Neither provides much information on any substantive work TAC has contributed to compliance. PPB separately reports that the TAC did not provide any “formal recommendations”; we have not had the opportunity to verify this report.
PPB’s 2015 Q1 data set included PPB’s 2015 Annual In-Service Annual Training Plan dated May 14, 2015. Commendably, the plan listed several scenarios in its patrol tactics portion which included provision of medical care, communication and attempted disengagement for a drug-affected individual, communication with a suicidal subject, and a disturbance with an armed, intoxicated, possibly suicidal person.

2 The assessments authors are all sworn PPB officers, except PPB’s non-sworn Training Development Officer, a psychologist; what PPB reports is a research analyst; and two PPB training and development analysts. There were no listed civilian authors or contributors.
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The training plan also sets aside three hours for discussion of the Settlement Agreement. DOJ requests that we review this area of instruction to better understand how this message is being delivered. We encourage all Departments to own their policy and institutional changes for the greater good. PPB’s 2015 Q1 data set and compliance did not include the City Auditor’s March 2015 report: “POLICE TRAINING DIVISION: Progress made, but evaluating impacts on officer performance must be improved,” available at https://www.portlandoregon.gov/auditor/article/520697. In that report, the Auditor offers a critical assessment of training. Among other things, the Auditor provides a ready source of information for the PPB to further comply with Paragraph 79. For example, the Auditor identifies a misplaced assumption by a training instructor that PPB members do not need further in-service training on the policy standards for the use of force: “In the 2014 In-Service Defensive Tactics training class we observed, none of the twelve participants could correctly articulate the Bureau policy on when to use force when they were asked by the instructor.” See Auditor’s Report at 13.
PPB’s 2015 Q2 data set had one document in the folder related to Paragraph 79: a status update on the training needs assessment (although no update to the assessment itself, as that is an annual requirement). The status update describes the resources consulted for each area of assessment – consultation with PPB’s Compliance Coordinator concerning training needs related to the Settlement Agreement, for example. PPB notes some useful steps; for example, the Training Division obtained data from the City’s bureau on officer disability concerning officer safety. This status update did not provide the necessary level of detail, however. For example, the status update states that PPB’s Training Division worked with the TAC’s Executive Committee to obtain community input; no further detail about the sources of community input or the nature of the feedback is provided. Past updates have included more information.
Technical PPB must have a more candid training assessment, inclusive of community and IPR Assistance input, and unafraid to specifically identify problems that indicate a need for
training.
PPB necessarily will have to revise its training assessment and training plan as PPB further implements the Settlement Agreement.
PPB must own its training and policy changes, and take care not to rely on DOJ requirements as prompting the need for the changes.
PPB’s training assessment is hindered by inadequate Audits by the Inspector. See Paragraph 74, above.
Utilizing the City Auditor’s training report may offer PPB opportunities to improve future training assessments.
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The United States has not yet engaged in a substantive review of compliance by assessing training at the academy since the entry of the Settlement Agreement. Going forward, we will observe training, review more records, and interview trainers, students, and TAC members.
Directive 1500 – Training is currently under public comment and review.

80. Within 180 days of the Effective Date, PPB shall develop and implement a process that provides for the collection, analysis, and review of data regarding the effectiveness of training for the purpose of improving future instruction, course quality, and curriculum. These evaluations shall measure and document student satisfaction with the training received; student learning as a result of training; and the extent to which program graduates are applying the knowledge and skills acquired in training to their jobs. This audit shall be reported to the Training Division Manager and shall include student evaluations of the program and the instructor.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set has a folder for Paragraph 80 that contains one file: Training Division Status Update for October through December 2014, dated January 14, 2015. This four-page document describes surveys planned for ECIT and supervisor course evaluations. Also included is the supervisor in-service course evaluation form.
PPB’s 2015 Q1 data set has a folder for Paragraph 80 that contains one file: Training Division Status Update for January 1 – March 31, 2015, dated April 15, 2015. This two-page document describes surveys planned for ECIT, in-service, and advanced academy training.
PPB’s 2015 Q2 data set has a folder for Paragraph 80 that contains two documents: Training Division Status Update for April—June, 2015, dated July 15, 2015; and a final version of the 2014 Enhanced Crisis Intervention Training assessment.
PPB and the City Auditor report that the Training Division is in process of developing a more scientific assessment of training efficacy based on the Kirkpatrick Model (i.e., a four-step analysis of reaction, learning, behavior, and results). Establishing this system is a work in progress.

Technical Assistance

Surveys are one means by which to evaluate effectiveness of training. PPB must broadly assess all areas of training required by the Settlement Agreement. PPB should also assess efficacy of training through: competency-based testing at the completion of each course; utilizing the Inspector’s Audits of FDCRs and 940s; utilizing community surveys; and outcomes assessment such as training needs identified in crisis situation reports, internal affairs reviews, or force review boards.

PPB should implement its scientific assessment of training efficacy. We will monitor PPB’s training assessment going forward.

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PPB apparently has not yet produced a training audit report to the Training Division Manager but must do so pursuant to Paragraph 80.

81. PPB shall ensure that the Training Division is electronically tracking, maintaining, and reporting complete and accurate records of current curricula, lesson plans, training delivered, attendance records, and other training materials in a central, commonly-accessible, and organized file system. Each officer’s immediate supervisor shall review the database for the officers under his/her command at least semi-annually.

Status

Partial compliance – ongoing obligation

Analysis

PPB reports that it conducted an assessment of in-house Bureau technology, and concluded that the Bureau’s own resources could not meet the demands of this Paragraph. PPB also reports that it has finalized a request for proposals and is seeking authorization to engage an outside vendor. These are helpful steps towards realizing the requirements of Paragraph 81, but it appears an electronic database dedicated to training has not yet been brought online. PPB continues to maintain at least some training records by member name accessible from its prior data management system, Skills Manager, as evident by the training records attached to the investigations of officer-involved shootings. See Paragraph 74, above.
PPB’s 2014 Q4 data set includes request-for-proposal documents for PPB’s planned training software and an internet shortcut that appears intended to link to Directive 120.00 – Inspections, Responsibility, and Authority, but which instead directs the user to http://www.police.city/open.cfm?id=1222944248.
2015 Q1 data set has a folder for Paragraph 81(a) that contains one file: a quarterly learning management system update. This is simply a one-page statement that the training division is awaiting demonstration of a potential software program to serve as the training management tool.
The 2015 Q2 data set has a folder for Paragraph 81(a) that contains another quarterly learning management system update. This memorandum lists a series of meetings dedicated to PPB’s evaluation of a new learning management system and development of a request for proposals.
PPB’s 2015 Q1 and Q2 data sets did not produce documents in their respective folders for Paragraph 81(b).
The current Directive 120.00 – Inspections, Responsibility, and Authority, is available at https://www.portlandoregon.gov/police/article/525400. In pertinent part, PPB revised Directive 120.00 to require that supervisors inspect their subordinates’ training records for timeliness and completeness of training. See Directive 120.00, Section 5.1.2.1.
Notwithstanding that policy, the City Auditor found in March 2015 that PPB needs to improve its tracking of outside classes not sponsored by the Training Division. See Auditor’s Report at 15.

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Technical PPB must bring its data management system to fruition, but should be careful to Assistance ensure that the system addresses all aspects required by this provision of the
Settlement Agreement.
PPB would benefit from considering the City Auditor’s recommendation to track training for officers to ensure they are trained in all PPB weapons to which they have access. See Auditor’s Report at 18, 22-25.

82. PPB shall report training delivered and received semi-annually to the Assistant Chief of Operations and, during the pendency of this Agreement, to DOJ.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set contained a course attendance summary listing trainings PPB provided for July to December 2014 and a memo explaining that PPB offered no in-service during this same period. PPB’s 2015 Q1 data set has a folder that contains the same documents. Although PPB’s 2015 Q2 quarterly report mentions the semiannual report, the corresponding data set did not produce documents in the folder for Paragraph 82.

Technical To make this report more meaningful, PPB will have to bring to fruition its training Assistance management systems consistent with Paragraph 81, which should provide PPB
executives with more useful data on training utilization.

83. PPB shall institute guidelines to govern its selection of officers that serve as trainers and shall ensure that those officers do not have a history of using excessive force. The trainer selection guidelines shall prohibit the selection of officers who have been subject to disciplinary action based upon the use of force or mistreatment of people with mental illness within the three (3) preceding years, or twice in the preceding five (5) years, and will take into account if a civil judgment has been rendered against the City in the last five (5) years based on the officer’s use of force.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s quarterly compliance report states that PPB issued Training Division Standard Operating Procedure 1-19, effective January 1, 2014, including the prohibition on trainer selection found in Paragraph 83.
The current SOP 1-19 – Training Division Instructor Selection Standards, is available at http://media.oregonlive.com/portland_impact/other/trainingsops.pdf. The SOP contains the prohibitions as described in Paragraph 83, albeit that PPB has minimized the civil-judgment requirement to a mere asterisk to the SOP, i.e., offsetting the clause as not having the same weight as other considerations.

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PPB’s 2014 Q4 data set does not contain a file for Paragraph 83. Neither PPB’s 2015 Q1 nor Q2 data sets produced documents in their respective folders for Paragraph 83.
Technical Going forward, we will assess for each current trainer whether he or she meets the Assistance requirements of Paragraph 83.
84. All training that PPB provides shall conform to PPB’s current policies at the time of training. PPB shall train all officers on the Agreement’s requirements during the next in-service training scheduled.
a. With respect to patrol officers, PPB shall:
i. increase the use of role-playing scenarios and interactive exercises that illustrate proper use of force decision making, specifically including interactions with people who have or are perceived to have mental illness, including training officers on the importance and impact of ethical decision making and peer intervention;
ii. emphasize the use of integrated de-escalation techniques, when appropriate, that encourage officers to make arrests without using force;
iii. continue to provide training regarding an officer’s duty to procure medical care whenever a subject is injured during a force event, and enhance and revise training as necessary to ensure that PPB’s training in this regard is proactive and responsive to deficiencies identified by the Inspector, if any;
iv. continue to train on proactive problem solving and to utilize, when appropriate, disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, requesting specialized units, including CIT officers and mental health professionals, or delaying arrest;
v. describe situations in which a force event could lead to potential civil or criminal liability; and
vi. continue to train officers to avoid using profanity, prohibit using derogatory/demeaning labels, and also avoiding terms not currently appropriate for person-center communication, such as the term “mentals,” in all work-related settings and communications, as well as when interacting with the public.
b. With respect to supervisors, provide additional training on how to:
i. conduct use of force investigations, including the supervisory investigatory responsibilities identified in Section III.A.3;
ii. evaluate officer performance as part of PPB’s annual performance evaluation system; and
iii. foster positive career development and impose appropriate disciplinary sanctions and non-disciplinary corrective action.
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Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set does not have a file for Paragraph 84. PPB’s 2015 Q1 data set has a folder for Paragraph 84 that contains an empty file.
The folder for Paragraph 84 in PPB’s 2015 Q2 data set contained a preview of the content of the in-service training, apparently drafted prior to initiation of the training in March 2015.
In its quarterly compliance report, PPB reported that there was effectively no regular in-service training for three consecutive quarters from July 2014 to March 2015. PPB reports, however, having conducted supervisor training in the fourth quarter of 2014 on Employee Information System, Directive 940.00 After Action Reviews, and Performance Evaluations. PPB did not provide these training materials in its usual data request, but we will assess these going forward. Based on the Inspector’s statement in the Audit that supervisors should not apply the best practices standard to After Action Reports as required by the Settlement Agreement, we have concern that the curriculum that the Inspector reportedly developed may be lacking on that point.
PPB’s content overview indicates that the in-service training contains many of the elements on which PPB must train patrol officers, including use of force scenarios, tactical disengagement, and PPB’s Use of Force policy. The training reportedly sets aside three hours for discussion of the Settlement Agreement. As we stated with respect to Paragraph 79, we would like to review how this instruction is being delivered as PPB should own its institutional change for the greater good. We have not yet observed and substantively assessed PPB’s revised training since the entry of the Settlement Agreement. We note, however, that the City Auditor generally praised the use of scenarios in PPB’s 2013 in-service training and ECIT training. See Auditor’s Report at 20. The Auditor noted backsliding to fewer and more poorly constructed scenarios in PPB’s 2014 in-service training. Ibid at 21. We also note the Auditor’s concern for lack of training on the provision of medical care. Ibid at 23. Going forward our assessments of PPB’s training will include our assessment of the Auditor’s critiques of PPB’s training.

Technical PPB must ensure that its training on After Action Reviews is consistent with the Assistance standard set forth in the Settlement Agreement.
We will conduct further independent monitoring of PPB’s training as implementation progresses. PPB need not wait, however, to work toward compliance with this provision. PPB should give careful consideration to the Auditor’s critiques and determine whether those may serve as a roadmap toward further compliance.

85. In consultation with the COCL, the Inspector shall audit the training program using the following performance standards to ensure that PPB does the following:
a. Conducts a comprehensive needs assessment annually;
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b. Creates a Training Strategic Plan annually;
c. Within 180 days of the Effective Date, develops and implements a process for evaluation of the effectiveness of training;
d. Maintains accurate records of Training delivered, including substance and attendance;
e. Makes Training Records accessible to the Director of Services, Assistant Chief of Operations, and DOJ;
f. Trains Officers, Supervisors, and Commanders on areas specific to their responsibilities; and
g. Ensures that sworn PPB members are provided a copy of all PPB directives and policies issued pursuant to this Agreement, and sign a statement acknowledging that they have received, read, and had an opportunity to ask questions about the directives and/or policies, within 30 days of the release of the policy.

Status

Partial compliance – ongoing obligation

Analysis

Like audits of Force Data Collection Reports and After Action Reports, this training audit required collaboration between the Inspector and COCL. PPB was hindered in its ability to fully comply with this provision by the length of time it has taken the City to retain COCL and the time for COCL to establish its operations. While waiting, PPB produced an independent training audit in the first quarter of 2015.
PPB’s 2015 Q1 data set includes several files for Paragraph 85, some of which repeat previous files’ documents. Significantly, PPB’s data include training status updates that describe further involvement of the TAC in obtaining public input to training, e.g., community outreach by TAC. Also significantly, PPB’s data show survey results for participants in advanced academy training. Participants overwhelming found ECIT, use of force, and force reporting training useful.
Among the documents provided is a two-page memo that purports to be the training audit itself. Though laudable that the Inspector would conduct a training audit while awaiting COCL participation, it does not yet meet the requirements of Paragraph 85(a) and (b). Similarly, even though the Training Division is awaiting a new record management system and the Auditor has faulted the Training Division for not tracking outside training (Auditor’s Report at 15), the Inspector credited the antiquated recording system as compliant with Paragraph 85(d)—and by extension Paragraph 85(e). For Paragraph 85(g), the Inspector declared that the Training Division provides “high quality instruction to all members.” While that may be true, the conclusion is premature given that PPB acknowledges in its 2015 Q1 compliance report that its implementation of a training evaluation system based on the Kirkpatrick model is still in progress. See 2015 Q1 Compliance Report, Item 80. Future training audits could be made more useful by engaging in a sufficiently critical and candid assessment.
PPB’s 2015 Q2 data set contained only one document in the folder related to Paragraph 85: minutes from the TAC meeting in May 2015. The minutes report that TAC discussed the Inspector’s audit. It appears that TAC largely reported out
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conclusions about the members’ concerns about the trainings themselves, not the audit.
Current Directive 010.00 is available at https://www.portlandoregon.gov/police/article/503833. Directive 010.00. Section 7.1 includes the requirements of Paragraph 85(g), second clause. PPB reports a high rate of officers acknowledging receipt of new policies, and provides supporting data in its Paragraph 85(g) folder in its 2015 Q2 data set.
(PPB’s 2014 Q4 folder for Paragraph 85(g) contains an internet shortcut that appears intended to link to PPB Directive 010.00, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1204100047. PPB’s 2015 Q1 data set includes in its Paragraph 85(g) folder an internet shortcut that also appears intended to link to PPB Directive 010.00, but instead directs the user to http://www.police.city/ack/dojreport.cfm.)

Technical Assistance

COCL must work with the Auditor as expeditiously as possible to develop a reliable training audit. As a starting point, COCL should assess the Training Division’s planned methodology for training assessments. If COCL has a basis to assert a change in those methods, PPB should have fair warning of such change before fully implementing its training assessments.

PPB’s Inspector must be willing to be more critical and candid.

86. In consultation with the COCL, the Inspector shall gather and present data and analysis on a quarterly basis regarding patterns and trends in officers’ uses of force to the Chief, the PPB Training Division, and to the Training Advisory Council. The Training Division and Training Advisory Council shall make written recommendations to the Chief regarding proposed changes in policy, training, and/or evaluations based on the data presented. The Inspector shall also, in coordination with the COCL and PSD, identify problematic use of force patterns and training deficiencies. The Chief’s Office shall assess all use of force patterns identified by the Training Division and/or Training Advisory Council and timely implement necessary remedial training to address deficiencies so identified.

Status

Partial compliance – ongoing obligation

Analysis

Unsurprisingly, the absence of a COCL with whom to coordinate on force and training audits hindered PPB’s ability to fully comply with this provision. Laudably, the Inspector attempted to achieve some compliance with Paragraph 86 by some problematic uses of force for training review. See PPB 2014 Q3 and Q4 compliance reports, Item 86.
PPB’s 2015 Q1 and Q2 data sets each have empty folders for Paragraph 86.
PPB’s 2014 Q4 data set include only a Power Point slide presentation on force investigations. PPB’s Inspector presented this to TAC.
PPB did not produce any written recommendations from the Training Division or

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TAC as required by Paragraph 86, second sentence. Notably, based upon a review of the minutes from the July meeting, and observation at the September meeting, the Inspector did not present a quarterly force report to the TAC.
PPB did not produce data indicating that the Chief’s office had directed remediation for problematic patterns of uses of force.
PPB reports that the data gap from May 2015 to present, which has correlated with its switch to the RegJIN data recording system, has inhibited its ability to comply with this provision.
Technical Consistent with the technical assistance described in Paragraph 85, above, COCL Assistance must work with the Inspector as expeditiously as possible to develop a reliable
training audit to produce the required data for the quarterly presentation to TAC.
The Training Division and TAC must memorialize their recommendations.
The Training Division and Inspector should complete their assessments of problematic patterns of uses of force and record their transmission to the Chief of any such patterns and their recommended remedies. The Chief’s office should memorialize timely remedial measures.
Substantial compliance with this provision must include the Inspector’s quarterly force report presentations, to include presentation to the TAC, and their written recommendations to the Chief regarding proposed changes in policy, training, and/or evaluations based on the data presented.

87. Training Advisory Council meetings will be open to the public unless the matter under discussion is confidential or raises public safety concerns, as determined by the Chief.

Status

Partial compliance – ongoing obligation

Analysis

The United States has observed a recent TAC meeting where members of the public attended and provided comment at the end of the meeting. Nevertheless, it raised concerns to find the following in minutes from a TAC meeting in May 2015: “Reiteration of the confidentiality of any material discussed within the TAC meetings.” If the minutes are accurate, this admonishment has been issued more than once, and imposes confidentiality on all material discussed at all TAC meetings. This is antithetical to Paragraph 87. PPB’s quarterly report for 2015 Q2 does not address this concern. (In fact, the quarterly report does not acknowledge that a TAC meeting was held in Q2.)
PPB’s 2014 Q4 folder included TAC’s agenda and minutes for TAC’s November 6, 2014 meeting. PPB’s 2015 Q1 folder included TAC’s agenda and minutes for TAC’s February 5, 2015 meeting. PPB’s 2015 Q2 folder included TAC meeting minutes for the May 7, 2015 meeting.

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Also of note: there was no quorum at the meeting to approve minutes in two of the meeting minutes reviewed. Insufficient attendance hinders the intended purpose of the TAC.

Technical Assistance

Like many other volunteers in this process, TAC members are deserving of thanks.
We are pleased that the TAC meetings are now open to the public and will include time for public comment; however there are several steps PPB can take to provide information to the public about the TAC’s work. First while the TAC website has posted agendas for its meetings from 2013 and 2014, no minutes of those meetings were posted. Second, agendas were not posted in advance for either the July or September meetings. And, if there was a meeting in 2015 prior to July, no minutes or agenda were posted for that meeting. See https://www.portlandoregon.gov/police/61449.

Agendas should be posted in advance of each meeting to assist the public in determining whether they have an interest in attending. Also, minutes should be posted shortly after they are approved by the Council. In addition to the minutes, any written recommendations to the Chief as required by the settlement agreement, or as otherwise submitted to the Chief should also be posted.

Finally, TAC should maintain an email list of members of the public who are interested and want to be notified of future TAC meetings. While posting of the meeting dates and agendas on the TAC website in advance is helpful, if meeting dates change (as they recently did from quarterly to bi-monthly), or due to a holiday (such as the upcoming November meeting), members of the public would not be on notice unless they are consistently checking the website. And, an email list is an efficient way to disseminate such information to alert interested persons to check the website when meeting dates change, agendas have been posted, etc. PPB needs to secure sufficient participation to make TAC representative of the community and useful to fulfill the public input requirements of the Settlement Agreement. A more robust TAC is not only a better use of the Training Division’s valuable time, but should serve to buttress public confidence in PPB.

V. COMMUNITY-BASED MENTAL HEALTH SERVICES
88. The absence of a comprehensive community mental health infrastructure often shifts to law enforcement agencies throughout Oregon the burden of being first responders to individuals in mental health crisis. Under a separate agreement, the United States is working with State of Oregon officials in a constructive, collaborative manner to address the gaps in state mental health infrastructure. The state-wide implementation of an improved, effective community-based mental health infrastructure should benefit law enforcement agencies across the State, as well as people with mental illness. The United States acknowledges that this Agreement only legally binds the City to take action. Nonetheless, in addition to the City, the United States expects the City’s partners to help remedy the lack of community-based addiction and mental health services to Medicaid clients and uninsured area residents. The City’s partners in the provision of community-based addiction and mental health services include: the State of Oregon Health Authority, area Community Care Organizations (“CCOs”), Multnomah County, local hospitals,
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health insurance providers, commercial health providers, and existing Non-Governmental Organizations (“NGOs”) such as community-based mental health providers, and other stakeholders.

Status

Not measured

Analysis

PPB operates within the context of serious gaps in community-based mental health services throughout the state. Such gaps impacting PPB include the lack of an adequate number of Assertive Community Treatment (ACT) Teams and other wrap around services, respite support, and supported housing. While DOJ continues to work separately with the state to address these gaps, PPB must continue to work with its community partners to educate them on the issues facing PPB due to the gaps in services, and collaboration on solutions.
Additionally, appropriate resources directed at transporting and treating subjects suffering from addiction or mental illness will help alleviate the strain placed on current responders. PPB identifies indicators of progress in this area, including:
• Meetings among partners at least every few months to discuss the issues confronting Portland;
• The creation of a Transportation Task Force designed to shift responsibility from PPB to EMS to transport those with a civil hold; and
• Plans to establish the Unity Center for Behavioral Health. See response to Paragraph 89.
While these steps may be positive, it remains to be seen whether they will substantially help remedy the lack of community-based addiction and mental health services.

Technical Assistance

We are encouraged by the meetings the BHU regularly participates in to coordinate resources with community partners, and we recommend that BHU begin to share BHU Electronic Referral System (BERS) data on trends of issues being addressed in addition to discussion regarding individual cases referred to the BHU.

89. The United States expects that the local CCOs will establish, by mid-2013, one or more dropoff center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. All such drop off/walk in centers should focus care plans on appropriate discharge and community-based treatment options, including assertive community treatment teams, rather than unnecessary hospitalization.

Status

Partial compliance – ongoing obligation

Analysis

While a compliant drop off/walk in center has not been established, we appreciate the City’s efforts to engage stakeholders in the development of such a service. PPB has participated in a workgroup addressing this concern. The Legacy Health hospital system, Oregon Health & Science University, and for- and non-profit health care organizations (Adventist Health and Kaiser Permanente) signed a letter
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of intent in February 2015 to develop the Unity Center for Behavioral Health. On August 13, 2015, the Unity Center announced that all four providers have signed a Joint Operating Agreement to proceed with the formation of the Center. The Unity Center is expected to provide emergency psychiatric services, a co-located centralized inpatient facility, and enhanced partnerships with community organizations providing behavioral health and substance use disorder services. The Unity Center is anticipated to open in November 2016. See http://www.legacyhealth.org/for-health-professionals/tools-and-resources-forproviders/edoctalk/2015-04-edition/apr-2015-unity-update.aspx .

Technical Assistance

While the provision of state and Medicaid funded behavioral health services is charged to the counties and CCOs, the City acknowledges the importance of delivering such services to persons who are in mental health crisis. The City devoted $500,000 in the 2015-16 budget towards capital costs of the Unity Center’s emergency care department. We recommend that the City continue involvement in the workgroup discussions, not just concerning transportation of individuals to the Center, but also to provide input on coordination with community partners regarding the importance of the inclusion of community-based services at the intended Unity Center.

90. The CCOs will immediately create addictions and mental health-focused subcommittee(s), which will include representatives from PPB’s Addictions and Behavioral Health Unit (“ABHU”), the ABHU Advisory Board, Portland Fire and Rescue, Bureau of Emergency Communications (“BOEC”) and other City staff. These committees will pursue immediate and long-term improvements to the behavioral health care system. Initial improvements include:
a. Increased sharing of information, subject to lawful disclosure, between agencies and organizations including BOEC, Multnomah County, and health care providers to create an information exchange among first responders and providers to better serve those suffering from mental illness;
b. Creation of rapid-access clinics so those in crisis have access to timely medication management appointments;
c. Enhancing access to primary care providers to shift low-to moderate acuity patients to primary care programs creating more capacity for acute patients in existing outpatient crisis mental health systems;
d. Expanding the options and available capacity for BOEC Operators to appropriately divert calls to qualified civilian mental health providers as first responders;
e. Addressing issues of unmet needs identified by Safer PDX and its community partners;
f. Expanding and strengthening networks of Peer-Mediated services to:
i. develop a referral guide delineating these services and locations and assist with accessing information;

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ii. better educate the community of the viability of these services as alternative first engagement sites/programs for those having difficulty engaging with “professional driven” services;
iii. expand peer services connected to peer supports in the community for inpatient psychiatric units (including Emergency Departments) and in the community;
iv. add peer guides to work alongside Emergency Department guides for those patients with behavioral health issues entering the Emergency Department; and
v. evaluate opportunities to expand use of peers to coordinate with PPB ABHU (as described herein) and function as a link with impacted individuals; and
g. pursue tele-psychiatry (a provision of mental health care by video conferencing) as a way for first responders to take advantage of existing IT infrastructure to provide direct care or provider evaluation supporting the provision of appropriate services to an individual in crisis.

Status

Partial compliance – ongoing obligation

Analysis

PPB initially reported that the CCOs had created such subcommittees, and that the BHU command participated in both the Health Share Oregon and Family Care CCO subcommittees. See https://www.portlandoregon.gov/police/article/452158, and quarterly reports 2014 Q1-2015 Q1. PPB now reports that the CCOs disbanded these subcommittees – for unknown reasons. We agree that the City cannot force the CCOs to create or maintain such subcommittees. Notwithstanding, the sharing of information between partners concerning the improvements for behavioral health services indicated in subparagraphs (a)-(g) above is critical to linking individuals to services and, by extension, helping to avoid unnecessary contact with law enforcement. For example, the BHU does not currently have access to or provide information to the Emergency Department Information Exchange (EDIE) system. Including PPB in the access to this exchange (to the extent allowed by law) is key for ensuring information is shared, and that such high risk individuals who repeatedly visit the ER are linked to appropriate services. See http://www.orhealthleadershipcouncil.org/our-current-initiatives/emergencydepartment-information-exchange-edie.

Technical PPB should inquire with the local hospitals and with the anticipated Unity Center as Assistance to whether PPB can provide information and/or access the EDIE system.
While PPB cannot force the CCOs to initiate or participate in such addiction and mental health subcommittees, PPB must find other ways to coordinate with health care partners to address both immediate and long-term solutions, consistent with the goals outlined in Paragraph 90. For example, CCO behavioral health representatives could be invited to the BHU follow-up meeting along with the other community partners where such goals and solutions could be addressed.
Also, PPB reports in its 2015 Q2 update that the Service Coordination Team (SCT) program continues its connections with various Emergency Department Diversion

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Programs, as well as attending the Legacy ED Community Outreach meetings. We applaud these efforts to gather information which may be useful for officers to connect individuals with services. While the meeting minutes indicate that various presenters share information about the resources they have available, it is unclear if such connections and presentations are addressing long-term solutions identified above in subparagraphs a-g.

VI. CRISIS INTERVENTION
The City acknowledges that the community of consumers of mental health services, and their families and advocates, have an interest in interactions between PPB and people experiencing mental health symptoms or crises. The PPB will add new capacity and expertise to deal with persons perceived or actually suffering from mental illness, or experiencing a mental health crisis as required by this Agreement. Despite the critical gaps in the state and local mental health system, the City and PPB must be equipped to interact with people in mental health crisis without resorting to unnecessary or excessive force.
A. Addictions and Behavioral Health Unit and Advisory Committee
91. In order to facilitate PPB’s successful interactions with mental health consumers and improve public safety, within 60 days of the Effective Date, PPB shall develop an Addictions and Behavioral Health Unit (“ABHU”) within the PPB. PPB shall assign command-level personnel of at least the rank of Lieutenant to manage the ABHU. ABHU shall oversee and coordinate PPB’s Crisis Intervention Team (“C-I Team”), Mobile Crisis Prevention Team (“MCPT”), and Service Coordination Team (“SCT”), as set forth in this Agreement.

Status

Partial compliance – ongoing obligation

Analysis

As set forth in response to Paragraph 99, PPB does not currently deploy a true Memphis Model crisis intervention team. PPB has taken some steps in this direction, and we anticipate continuing to work with PPB to ensure that specially trained officers with experience responding to mental health crises respond when needed.
Establishing ABHU: PPB has established the Behavioral Health Unit (BHU). As noted in our August 17, 2015 technical assistance letter, we commend PPB on the development and dedication of the BHU and its coordination with the BHU Advisory Committee and other community partners.
Addictions and Behavioral Health Unit oversight of Crisis-Intervention Team, Mobile Crisis Prevention Team, and Service Coordination Team:
The BHU includes a mobile crisis prevention team, called the Behavioral Health Response Team (BHRT); a Service Coordination Team (SCT); and a Coordinator for Enhanced Crisis-Intervention Team (ECIT) officers. The BHU assists in the development of Academy-level Crisis-Intervention Training and Enhanced CrisisIntervention Training.
The PPB chain of command provides for the Behavioral Health Unit’s coordination with, but not necessarily oversight of, ECIT-trained officers. ECIT
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officers report via their chain of command to their precinct commander and, ultimately, the Assistant Chief of Operations; PPB reports that the ABHU does not directly supervise ECIT officers. Supervisors within an ECIT officer’s precinct determine training and discipline, although the early-intervention system will notify the BHU if an ECIT officer engages in misconduct, and the Lieutenant overseeing the BHRT can take (an unspecified) role in the disciplinary process. PPB’s 2014 Q4, 2015 Q1, and 2015 Q2 folders contained an organizational structure chart. None of the org charts demonstrated that the ABHU conducts meaningful oversight of the dozens of ECIT officers assigned to precincts. To the contrary, the only link between the ABHU and the ECIT patrol officers was a dotted line between the ECIT officers and the ABHU’s “ECIT Coordinator” – a position not currently occupied by a supervisor. Such structure leaves some lack of clarity as to the level of oversight of the BHU commander as required by Paragraph 91.
(Note that the 2015 Q1 data set also contained an announcement for a job opening as a BHU Seargent.)
Command-level Supervision: The Central Precinct Commander oversees the BHU, including both the BHRT and SCT. A Lieutenant oversees the day-to-day operations of the BHRT; the SCT Program Manager oversees the SCT.

Technical Assistance

BHU will have to better define its oversight of the ECIT officers. Currently, ECIT officers report to the chain of command of their assigned precinct. However, the BHU lieutenant (assigned to the Central Precinct) and ultimately the Central Precinct commander must oversee and coordinate the ECIT officers. See Settlement Agreement Paragraph 91. To ensure such oversight, the CIT Coordinator, her sergeant, Lt. Hager, and, as necessary, the Central Precinct Commander must regularly involve themselves in supervision of ECIT officers, including, but not limited to: reviewing ECIT reports, identifying and addressing concerns as needed, and taking part in training or discipline related issues. If BHU is engaged in such oversight, it is not currently memorialized in writing. We recommend that BHU memorialize its role in review and oversight of ECIT officers to ensure all involved clearly understand the set expectations. We will continue to monitor compliance with the relevant provisions of the Settlement Agreement, and will reassess the adequacy of BHU’s oversight upon memorialization of its role in overseeing the ECIT team. Further, PPB should evaluate whether the CIT Coordinator position requires a member of a supervisory rank in order to ensure adequate review and oversight.

92. ABHU will manage the sharing and utilization of data that is subject to lawful disclosure between PPB and Multnomah County, or its successor. PPB will use such data to decrease law enforcement interactions or mitigate the potential uses of force in law enforcement interactions with consumers of mental health services.

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Status

Partial compliance – ongoing obligation

Analysis

PPB reports that it holds bi-monthly meetings with system partners, including Multnomah County system partners such as the mental health diversion court program (to include probation and parole), and the Sheriff’s office, in which attendees problem-solve challenging cases or individuals with whom they have repeat encounters. Other community-based partners, such as Project Respond and Veterans Affairs, also attend these meetings.
PPB has not reported what role data plays in the meetings, and whether and how coordination with the system partners decreases law enforcement interactions with consumers of mental health services. In June 2015, PPB reported that the BHU’s Crime Analyst can retrieve data from the BHU Electronic Referral System (BERS). PPB reported that it was willing to share data from the BERS system with Multnomah County, but said PPB still needed to ask the County what data the County needs. Likewise, interviewees during our visit to PPB in June reported that regular meetings between health providers and PPB focused on problem solving tough cases, rather than sharing data.

Technical Assistance

As noted in Paragraph 88, we are encouraged by the meetings the BHU regularly participates in to coordinate resources with community partners, and we recommend that BHU began to share BERS-related data on trends of issues being addressed, in addition to discussion regarding individual cases referred to the BHU.

93. ABHU shall track outcome data generated through the C-I Team, MCPT, and SCT, to: (a) develop new response strategies for repeat calls for service; (b) identify training needs; identify and propose solutions to systemic issues that impede PPB’s ability to provide an appropriate response to a behavioral crisis event; and (c) identify officers’ performance warranting commendation or correction.

Status

Partial compliance – ongoing obligation

Analysis

Tracking Outcome Data:
The BHU is tracking deployments of ECIT officers. ECIT officers generate the data by completing a separate, mandatory report after using their ECIT training in the field. During our June meetings, the BHU provided a statistical report on the data it collected from 267 ECIT reports regarding mental-health-related calls between February 15 and May 23, 2015. In the 2015 Q2 report, PPB states that there were 207 calls for which an ECIT officer applied his/her training (an average of 2.3 calls per day). Of note, PPB reports that the use of force was reported in 2% of these calls (4 of the 207 calls). However, without collecting data on all mental-health-related calls as provided by the Memphis Model, PPB is not in compliance with the data tracking that the Memphis Model CIT would generate.

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The BHU is likewise tracking BHRT referrals and follow-up through its BERS system. PPB reports that any PPB member can make a referral to the BHU through BERS, and such referral is assigned to a BHRT if it meets certain criteria. In 2015 Q2, PPB reports there were 291 referrals to BHU (including individuals with multiple referrals), 197 of which were new referrals. Of those new referrals, 87 (43%) were assigned to a BHRT for follow-up. Further in 2015 Q2, PPB reported there were 123 cases (117 individuals) that had reached an outcome and thereby were transferred to inactive status. The most frequent outcome was “coordinated services” (44 cases), whereas jail/criminal justice system only accounted for 7 cases. Other categories are as follows: concern mitigated (35 cases); unable to locate (14 cases); systems coordination (10 cases); refused assistance (7 cases); civil commitment (5 cases); other (1 case, handled by Neighborhood Response Team). Tracking such data trends and the reasons for such outcomes could be helpful in the bi-monthly meetings with partners.
PPB also produced aggregate data of the number of entrants to SCT’s program; the number of graduates; those that were able to find housing and/or a job after the program; and the aggregate number of arrests for program participants before the program as opposed to after. The statistics provided a broad overview of the scope of the program, but also have limitations, discussed in further detail in our response to Paragraph 112.
Developing New Strategies for Repeat Calls: PPB has not reported any such strategies or described how the data tracked will lead to strategy development.
In their 2015 Q2 update, PPB notes that the BHU developed and began tracking performance measures which will eventually provide outcome data. Such data will be used to identify new response strategies for repeat calls, training needs, and possible solutions for system issues that impede its work. DOJ looks forward to reviewing such data and strategies.

Technical Assistance

While the “ECIT” code is used by BOEC to track dispatch to the current protocol of limited calls involving a mental health component for which ECIT may be dispatched, all other calls that may involve a mental health component are only given one code for the situation (e.g., welfare check, disturbance, etc.). For these other calls, a regular patrol officer is dispatched regardless of whether there is a mental health component to the situation. There is currently no reliable way to determine how many of these other coded situations involve a mental health component.

Data on the number and type of all mental-health-related calls is critically needed to inform this discussion. In the interim (until such data is collected and assessed) at the very least, PPB and BOEC should include all suicide calls to the ECIT protocol, as those are known mental health related calls.

Further guidance on this issue is addressed in our technical assistance letter dated 8/17/15.

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94. Within 90 days of the Effective Date, PPB shall also establish an ABHU Advisory Committee. The ABHU Advisory Committee shall include representation from: PPB command leadership, CIT, MCPT, and SCT; BOEC; civilian leadership of the City government; and shall seek to include representation from: the Multnomah County’s Sheriff’s Office; Oregon State Department of Health and Human Services; advocacy groups for consumers of mental health services; mental health service providers; coordinated care organizations; and persons with lived experience with mental health services.

Status

Substantial compliance – ongoing obligation

Analysis

A roster of ABHU Advisory Committee members provided by PPB includes all of the organizations and personnel listed in Paragraph 94, (noting that the Oregon State Department of Health and Human Services has been since been restructured and the relevant state component is the Oregon Health Authority (OHA)).
The United States has observed ABHU Advisory Committee meetings. The attendees have included the BHU Lieutenant; two ECIT-trained officers; BOEC representatives; a representative of the Multnomah County Sheriff’s Office; members of advocacy groups; representatives of mental health service providers and coordinated care organizations; persons with lived experience with mental health services; a representative of the metropolitan public defender’s office; a representative of the Oregon Health Authority; and a graduate from PPB’s SCT program. The attendees did not include PPB commanders more senior than Lieutenant. The moderators of the discussion we observed invited broad participation, and all attendees offered thoughts on the issue discussed.
Minutes from BHUAC meetings in the fourth quarter of 2014 and the first quarter of 2015 suggest that the BHUAC has encountered some difficulty ensuring the presence of the PPB commander overseeing the BHU; representatives from civilian City government; and Oregon States Department of Health and Human Services representatives (now OHA).

Technical In order for us to fully assess the formation of the Advisory Committee and Assistance ongoing participation of its members, PPB should be providing information about
how members are recruited, and should continue to provide minutes of meetings.
PPB also should engage in concerted and documented efforts to ensure that all required ABHU Advisory Committee members consistently participate in meetings.

95. The ABHU Advisory Committee shall provide guidance to assist the City and PPB in the development and expansion of C-I Team, MCPT, SCT, BOEC Crisis Triage, and utilization of community-based mental health services. The ABHU Advisory Committee shall analyze and recommend appropriate changes to policies, procedures, and training methods regarding police contact with persons who may be mentally ill or experiencing a mental health crisis, with the goal of de-escalating the potential for violent encounters. The ABHU Advisory Committee shall report its recommendations to the ABHU Lieutenant, PPB Compliance Coordinator, COCL (as described herein), and the BOEC User Board.
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Status Analysis

Partial compliance – ongoing obligation
Minutes from ABHU Advisory Committee meetings and the Committee’s reports show that the Committee reviews many of the issues contemplated by Paragraph 95. The Committee reports that it assisted in the development of the ECIT training, including recommending that the training dedicate time for two panel discussions. Many Committee members attended training sessions and some participated in the panels. The Committee offered feedback on the training sessions. The Committee also hosted guest speakers on policies and training, and engaged the guests in question-and-answer.
The written training recommendations the Committee delivered to PPB on June 2, 2014 included recommendations for additional classes on mental illness; peer perspectives on police interactions; time allotment for consumer and family panels; classroom layout; and interactive exercises. The Committee also wrote in 2014 that PPB incorporated many of the Committee’s 2013 suggestions. However, some Committee members expressed concern during the March 2015 meeting that prior suggestions for scenario-based trainings were not accepted by PPB.
In its 2015 Q2 supporting documents for Paragraph 96, PPB provides a response to the Committee’s recommendations for changes to the 2014 ECIT training, which are largely accepted.
The Committee has offered substantive written recommendations on other subjects too, such as SOPs, a directive, and expansion of the SCT. The status report that the Committee produced in April 2015, which was provided in the 2015 Q2 supporting documents within the folder for Paragraph 96, includes formal recommendations to Directive 850.20 and 850.25 (although no changes were recommended to 850.20), but also notes the following: “At our April 2015 meeting, the BHUAC reviewed Directives 850.20 and 850.25 in response to the Second Universal Review: 4/13/15 – 5/2/15. We did not have time to review Directives 850.21 and 850.22 at this meeting.” No further formal recommendations to these remaining directives appear to have been provided. The meeting minutes PPB produced did not state any formal Committee recommendations (although individual Committee members often made recommendations during discussions).
The Committee is reserving written comment on BOEC protocols so that it can gather more information. During the observation of the June meeting, the Committee began working on recommendations for the upcoming in-service refresher training on crisis intervention and mental health related issues.
In its 2015 Q2 report, the BHUAC minutes provide a robust discussion on the SCT expansion proposal (to include six dedicated beds for stabilization of mental health issues). A DOJ representative observed this meeting. While Committee members were supportive of the concept of the bed expansion, the Committee did not make formal recommendations to SCT, other than the general support for the concept. A formal motion was also made and passed to include a recommendation
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that a preference be provided for peer involvement in direct services, planning, and management.
By way of summary, the ABHU Advisory Committee appears to provide a forum for discussion of critical mental health-related policies and practices. The Committee has delivered thoughtful recommendations on training, a majority of which PPB reports that it has implemented. The ABHUAC has also commented on other documents. Recommendations on other matters within the Committee’s ambit may be forthcoming. Paragraph 95 anticipates an even more expansive role for the ABHU Advisory Committee in guiding PPB’s mental health related work; nothing about the Committee’s work to date suggests that that cannot be achieved.

Technical Assistance

As the City implements the changes we suggest for ECIT use, BOEC protocols, and other matters as described herein, PPB should necessarily utilize the ABHU Advisory Committee. The City’s ongoing implementation obligations for the Committee, therefore, go hand-in-hand with bringing all of the crisis intervention sections of the Settlement Agreement to fruition.

96. Within 240 days of the Effective Date of this Agreement, the ABHU Advisory Committee will provide status reports on the implementation of the ABHU and BOEC Crisis Triage, and identify recommendations for improvement, if necessary. PPB will utilize the ABHU Advisory Committee’s recommendations in determining appropriate changes to systems, policies, and staffing.

Status

Partial compliance – ongoing obligation

Analysis

The ABHU Advisory Committee reviewed changes to BOEC’s Dispatch Criteria for calls with a mental health component in 2013, and in December 2014, some Committee members attended a presentation at BOEC regarding the Crisis Triage system. In its Q2 2015 quarterly report, PPB provides the Committee’s report on the status of implementation of the BHU and the BOEC Crisis Triage System. However, the Committee notes that it did not have a quorum at the meeting regarding BOEC crisis triage policies, and therefore no formal recommendations were made concerning this issue. Also, the Committee did not make recommendations for improvement to the BHU generally.
PPB reports that, in 2014, the ABHU Advisory Committee offered comments on PPB policies related to police response to persons in mental health crisis and police response to mental health facilities. As noted above and herein PPB provided the United States with the details of the ABHU Advisory Committee’s review in 2015 regarding PPB policy 850.20 and a recommendation concerning the expansion of the SCT, however, comments on BOEC’s crisis triage policies have not been received, and the Committee’s report provided with the 2015 Q2 update provides that the Committee hopes to address this issue in the year ahead. Furthermore, while we received a copy of BOEC’s Mental Health reference guide during our June meetings, we have not received the related Suicide or Project Respond
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Reference Guides.
In it 2015 Q2 compliance chart, PPB lists recommendations from the Committee. See 2015 Q2 compliance report, Item 96.
• Expansion of the Service Coordination Team's available resources to include six mental health beds and an increase in the array of outpatient services offered by the program.
• Recommends a preference to involve peers (people with lived mental health experience) in direct services, planning and management with an emphasis on training peers for management levels.
• Made recommendations on proposed mental health directives.

Technical Assistance

PPB needs to provide the missing BOEC policies referred above to the United States (and have the BHUAC review them), so we can begin the process of review and comment, and PPB and BOEC can go on to train staff on the new/revised policies.

B. Continuation of C-I Program
97. PPB provides C-I Training to all its officers. C-I is a core competency skill for all sworn police officers in the City. PPB shall continue to train all officers on C-I.

Status

Substantial compliance (pending review of training records) – ongoing obligation

Analysis

PPB reports compliance.
The United States will review training records from PPB; upon review of such records, PPB’s substantial compliance with this provision may be confirmed.

Technical PPB should provide auditable training records. Assistance

98. PPB agrees to continue to require a minimum of 40 hours of C-I training to all officers before officers are permitted to assume any independent patrol or call response duties. Additionally, PPB shall include C-I refresher training for all officers as an integral part of PPB’s on-going annual officer training. PPB’s Training Division, in consultation with ABHU Advisory Committee, shall determine the subjects and scope of initial and refresher C-I training for all officers.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s proposed policy language requires some revision to comply with this Paragraph. Proposed PPB policy language would require C-I training for new sworn members, although the proposed policy did not require that the training take
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place before the officers assumed independent duties, and did not specify the number of hours. The proposed policy did require annual refresher C-I training. PPB reports that officers are receiving the appropriate training.
PPB has not produced any comments from the ABHU Advisory Committee on Academy or refresher training. The United States understands that such discussion for the 2016 in-service refresher training occurred at the June and July Committee meetings. We look forward to receiving any formal comments forthcoming from the Committee, and to the response from PPB as to whether such recommendations will be implemented.

Technical Assistance

While PPB has provided lesson plans for the 40 hours of basic crisis intervention training taught at the basic and advanced academies, we do not have the lesson plans or agenda for the upcoming in-service refresher training, and we will need additional time to review such training before providing further comment on compliance with this paragraph. In its 2015 Q2 report, PPB provided the content overview for the 2015 In-Service training. It appears that the scenario training will include some elements concerning an individual in a behavioral health crisis. Full analysis of this scenario will require observation.

Note that full compliance will require considering and addressing ABHU Advisory Committee recommendations regarding the Advanced Academy and In-service trainings.

C. Establishing “Memphis Model” Crisis Intervention Team
99. Within 120 days of the Effective Date, PPB shall establish a Memphis Model Crisis Intervention team (“C-I Team”).

Status

Partial compliance – ongoing obligation

Analysis

While PPB has created a volunteer cadre of officers under its Enhanced Crisis Intervention Team (ECIT) program, PPB’s model does not currently comport with some of the core elements of a Memphis Model Crisis Intervention Team.
The “Memphis Model” includes, among other core elements:
• Training dispatchers to identify calls that may involve mental illness;
• Having officers with extensive crisis-intervention training and experience (most comparable to PPB’s “ECIT” officers) respond to all such calls; and
• Having officers with extensive crisis-intervention training and experience assess the situation and when appropriate take control of the scene.
Some aspects of PPB’s approach to crisis intervention are consistent with the Memphis Model. All PPB officers receive 40 hours of training in crisis intervention at the Academy; Patrol Officers can volunteer to take an additional 40 hours of in-service training focused on crisis intervention; PPB calls these officers “ECIT officers.” Dispatchers call exclusively ECIT-trained officers for a set of

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calls that may involve mental illness (such as a subject threatening to commit suicide by jumping). Broadly speaking, none of these aspects conflicts with the Memphis Model.
Portland’s model differs from the Memphis Model because it does not reserve all or even nearly all mental health-related calls for the most highly-trained crisisintervention officers. BOEC does not currently assess whether mental illness is involved in a call for service, instead dispatching ECIT officers to calls that fit a list of clearly-defined categories that could not possibly capture all calls involving mental health. Accordingly, BOEC dispatches a considerable number of calls involving mental illness as it would any call for service. Likewise, PPB does not require that ECIT officers respond to all or even most calls suspected to involve mental illness. Even where an ECIT officer responds to a call where the police recognize that mental illness is in play, PPB places no obligation on the ECIT officer to take control of the scene. Because there is no evidence that ECIT officers respond to a higher volume of mental illness-related calls than CIT officers do, whether the ECIT officers accrue specialized experience with mental illness as quickly as Memphis Model officers do is highly questionable.
The City pointed out in commenting on this Report that ECIT officers serve as patrol officers, thereby responding to all variety of calls, some of which may involve persons with mental illness. However, neither PPB nor BOEC currently employs a means of identifying all mental health related calls, meaning neither PPB nor the United States have a means of identifying how many mental-health related calls ECIT officers respond to.
Despite the Settlement Agreement’s unequivocal requirement that PPB implement a Memphis Model crisis-intervention team, PPB is concerned that expanding the coverage of mental health related calls directly dispatched to ECIT officers will impede ECIT officers from responding to higher risk calls.
The problem with PPB’s stated concerns is that there is no data to support them. Data on the number of calls based on mental illness is critically needed to inform this discussion.
The United States will continue to enforce the terms of the Settlement Agreement as written, including Paragraph 99. PPB does not currently have a Memphis Model crisis intervention team.
We encourage PPB to gather the data necessary to renew its proposal for an alternative approach, and we are open to continuing the discussion. In the meantime, the United States recommend the following interim changes to its protocols::
• To add “all suicide threats” to the list of types of calls that BOEC dispatches to ECIT officers;
• In addition to abiding by the BOEC dispatch protocol, as modified, PPB will require the responding patrol officer to assess the need for requesting an ECIT when the responding officer finds any one of the following:
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o Mental Health Disorders
o Traumatic incidents
o Sudden deaths
o Attempted suicides
o Medical assists/Well-being checks (with a mental health related component)
o Breach of Peace/disorderly conduct (with a mental health related component)
o Trespassing/refusing to leave property (with a mental health related component)
Furthermore, policies concerning this assessment should reflect that the responding patrol officer accountable for assessing this “secondary dispatch” function, and the responding officer’s performance reviews will consider whether the officer executed this function where appropriate.
• As discussed in greater detail herein, PPB policy should also require officers to consult with mental health professionals before disengaging from a scene where the subject presents a risk of harm to self or others.
Technical Extensive technical assistance on PPB’s ECIT program is provided in a separate Assistance letter dated 8/17/15.

100. PPB’s C-I Team shall be comprised of officers who volunteer for assignment to the C-I Team. The number of C-I Team members will be driven by the demand for C-I Team services, with an initial goal of 60-80 volunteer, qualified officers.

Status

Partial – ongoing obligation

Analysis

As set forth above, PPB has implemented some aspects of a Memphis Model C-I Team. PPB’s policies governing encounters with persons in crisis and Portland’s dispatch protocols do not allow for ECIT officers to gain the accelerated experience with mental illness-related calls that a Memphis Model C-I Team would.
Also, as mentioned above, PPB lacks the data concerning calls involving mental illness to gauge the demand for ECIT officers. During our visit to PPB in June, representatives of the Bureau reported 62 ECIT officers currently available to receive calls. PPB has held three ECIT courses to date: two in May 2013 and another in April 2014. PPB has reported that and additional class is scheduled for November 2015, which will likely add 25 additional ECIT officers.
The proposed language of PPB’s policy on police response to mental health crises defines ECIT officers as volunteer. See Directive 850.20-Police Response to Mental Health Crisis, Second Universal Review: 4/3/15-5/2/15.

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Technical We recommend that PPB plan to conduct two ECIT trainings per year, starting in Assistance 2016. Class sizes will be determined by PPB’s data on of calls involving mental
illness.

101. No officers may participate in C-I Team if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of C-I Team service, or during C-I Team service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the C-I Team.

Status

Compliance rating pending – insufficient documentation

Analysis

PPB has reported that it has a vetting process for ECIT applicants that conforms to this provision. PPB has not yet provided us with the policies or documentation to demonstrate compliance with this requirement, however.
PPB has not reported consultation with the ABHU Advisory Committee on these matters. During our observation of the August meeting, the Committee was provided an opportunity to comment on the qualification criteria for the upcoming training.
PPB reports that it screened participants in the 2014 ECIT training for compliance with Paragraph 101 of the Agreement, but has not yet provided the criteria used or any documentation of the actual screening. In its quarterly compliance report, PPB reports that it will apply this selection criteria for the Fall 2015 training, but that it has not yet completed a standard operating procedure for analysis of PSD materials. See PPB 2015 Q2 compliance report, Item 101.
PPB did not produce documents in folders related to this Paragraph in support of its self assessment for 2014 Q4 or 2015 Q1 or Q2.

Technical Assistance

PPB should provide its selection criteria and PSD SOP to the ABHU Advisory Committee before applying such criteria, and report on any advice provided by the Committee. PPB should ensure that both comply with the requirements of Paragraph 101 and provide both to the United States for review.

102. PPB shall specially train each C-I Team member before such member may be utilized for C-I Team operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for C-I Team members consistent with the Memphis Model.

Status

Partial compliance – ongoing obligation

Analysis

As noted above, PPB’s ECIT model includes aspects the Memphis Model, including certain elements of training as provided below and in our technical assistance letter date 8/17/15.

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As discussed in response to Paragraph 95, the Committee has provided recommendations on ECIT training.
We commend PPB for reaching out to the Global Health Center at OHSU and a peer support specialist from the Urban League of Portland regarding integrating ECIT and BHU programs into diverse populations as well as to seek opportunities to incorporate more diversity into future crisis intervention training. See 2015 Q2 Quarterly Update Report, Paragraph 102.

Technical Assistance

The United States has not observed an ECIT training yet; to date, we have only reviewed elements of the curricula and course agenda. Thus, while reserving our right to modify these comments after reviewing training sessions in person, we provide further technical assistance by letter dated August 17, 2015.

While the academy trainings should be considered as a foundation on which to build ECIT training, it should not be assumed that officers in an ECIT class remember all of the content from the academy trainings or would not benefit from some review of critical basic material. Even with the annual in-service refresher training, it may have been many years since the academy training occurred for some of the ECIT volunteer officers. For example, a brief overview (mental health 101 type of review) of the common mental disorders and how persons with such disorders may present themselves to first responders would be helpful as a foundation for field engagement with consumers, family members, providers, and the general public.

We are encouraged by the inclusion of presentations of consumers and family, peer recovery, and early assessment of psychosis (EASA). However, we currently do not have enough information to assess these presentations and we look forward to observation of the training to provide further guidance.

We recommend the following areas for improvement to conform PPB’s ECIT training to best practices:

• ECIT Training should reflect a community partnership throughout the agenda.

o While a consumer-and-family panel is an important component of the training, there appears to be little exposure to the mental health community during the classroom component. During our June meetings with PPB and community partners, we were informed that the ECIT class was taught by a variety of community stakeholders in the professional community, as well as consumers and family members. From the training plan provided by PPB the sessions taught by mental health professionals outside of PPB primarily appear only on the first day of training: the peer and family panels, forensic diversion programs available within Multnomah County, the EASA program, a presentation from NAMI, as well as suicide intervention and mental status indicators (presented on day two by a psychiatric nurse from Project Respond). The ECIT

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training report also indicates that Dr. Liesbeth Gerritsen was the lead or co-lead on much of the training.
o While it is commendable that PPB employs a full-time mental health professional with the experience and knowledge that Dr. Gerritsen possesses, the inclusion of multiple mental health professionals (psychiatrists, psychologists, social workers, nurses) presenting throughout the week-long training course encourages the development of community and intergovernmental partnerships. Certainly, many topics currently included in the training can be co-presented (either formally or informally) by a community-based mental health professional or government agency provider, and a PPB instructor, such as:
 history of mental health treatment
 ECIT community resources
 mental health risk assessment
 BOEC dispatch protocols for mental health calls
 crisis response (all sessions on day 3 of training)
 all of the scenario based role playing.
• Provide a full-day for site visits and ride-along with a community treatment provider.
o Currently the ECIT training plan provides 1.5 hours for a site visit – which appears to allow only time for one site visit by each officer. Many CIT courses include two half days or a full day for site visits, and we recommend expanding this effort. We also suggest a ride-along with an Intensive Case Manager (ICM) or an Assertive Community Treatment (ACT) team member. Such outreach during training instills a key component of the specialized knowledge that ECIT officers can bring to bear in their work – relationships with mental health providers and consumers.
• Crisis Response Resource (Day 3 of ECIT Training) should focus on engagement and de-escalation.
o A review of the lesson plan for day three and discussion with Sgt. King indicates that the teaching philosophy on engagement and communication for ECIT offices is based on practices of a crisis negotiation team (CNT). While CNT tactics may incorporate parallel issues also seen in behavioral crisis response or response to persons with mental illness, the focus of CIT training should be on engagement and de-escalation, while acknowledging that officer and community safety always comes first. Incorporating an outside mental health professional (e.g., someone from Project Respond) throughout the lessons for this
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day will provide a mental health perspective on de-escalation as the sessions are taught.
o As further discussed below in regards to coverage of mental health calls, to conform with CIT core elements, ECIT officers should be trained as first responders and generally serve as the primary officer on the scene, rather than that of a supporting officer as is typical for CNT officers, or K-9 officers (as noted in the BHU overview in the CIT training lesson plans).
• Continue to keep role playing scenarios updated, include community mental health providers, and include several rounds of officers in the exercise.
o While the six ECIT scenarios reviewed in 2014 ECIT training report appear well considered for the type of encounters and issues officers may face in the field, we recommend continually updating these scenarios based on recent experiences of ECIT officers in the field. And, as provided above, incorporating community mental health providers into these role playing scenarios will further the partnerships necessary for successful outcomes.
The report notes that each scenario is handled by a single pair of officers and the reviews of the scenarios indicate that some were not handled as the instructors hoped. To increase officer involvement in the training, we recommend each scenario build upon itself by a successive pair of officers, such that after an initial intervention by the first pair, the scenario is stopped and “freeze framed” and then a second pair pick up where the first left off. This can continue for three or four pair of officers, until the situation resolves safely. Safe resolution almost always means the individual agreeing to leave the scene and be transported to a treatment facility. Trainer can coach role players so the situation doesn’t resolve until several groups have rotated through managing the situation.
• Include additional topics in the ECIT Training
o Include a “mental health 101” overview as described above o Review CIT core elements and the “Memphis Model.”3 See
http://www.cit.memphis.edu/information_files/CoreElements.pd f
o Incorporate how to communicate with individuals in the midst of psychosis, using hearing distressing voices training. While the 40 hours of basic crisis training for all officers incorporates a lesson plan created by Dr. Pat Deegan as provided by the
3 To assist in further development of a Memphis Model CIT program, BHU, training staff, and ECIT officers should be encouraged to attend the CIT International Conference, to the extent possible, April 25-27, 2016 in Chicago http://citconferences.org/.
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National Empowerment Center, Inc., for hearing voices that are distressing, this lesson does not appear in the ECIT lesson plan. ECIT training should include a review of this curriculum or incorporating this type of issue in scenario based role playing to help sensitize officers to what it is like to hear voices while in an encounter with law enforcement, and how to communicate with individuals in the midst of psychosis.
o Enhanced focus on verbal de-escalation.

103. C-I Team members will retain their normal duties until dispatched for use as a C-I Team. BOEC or PPB may dispatch C-I Team members to the scene of a crisis event.

Status

Partial compliance – ongoing obligation

Analysis

While ECIT officers do retain their normal duties until dispatched, they are currently only directly dispatched for the narrow classes of calls outlined in BOEC’s protocol.
The current BOEC dispatch protocol requires dispatching of an ECIT officer if one or more of the following is present:
o The subject is violent
o The subject has a weapon
o The subject is threatening to jump from a bridge or structure or to impede/obstruct any vehicular traffic
o The call is at a known mental health facility
o Upon request of the responding officer
o Upon request of a citizen (any caller)
While ECIT officers are being dispatched to these types of calls, a Memphis model C-I team would respond to all related mental health calls.
As provided in the 2015 Q2 update, PPB has agreed to expand the dispatch criteria to include all suicide calls. This limited expansion is helpful as an interim measure.

Technical BOEC and PPB must collect data on the response by patrol officers to all calls with Assistance a mental health related component.

104. PPB will highlight the work of the C-I Team to increase awareness of the effectiveness of its work.

Status

Partial compliance – ongoing obligation

Analysis PPB has produced a BHU pamphlet, BHU newsletters, a BHU webpage, a

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newsfeed, and a calendar that lists trainings, conferences, and outreach events. We commend the BHU for the numerous outreach events in the community (including the commendation to two officers who have established regular outreach to NorthStar) and its upcoming participation in the Northwest Regional CIT conference this September in Vancouver, Washington, as reported in its 2015 Q2 update. Steps to highlight CIT’s work can be increased, and public awareness about the ECIT program in particular will increase accordingly. For example, based on our conversations with the chair of the BHUAC and Project Respond staff, many residents of Portland are likely unaware that they can request an ECIT officer to respond when they place a call for service. This quotient can increase.
Technical PPB should continue to pursue documented community outreach to help inform the Assistance community about the existence, roles, and availability of the C-I Team.

105. For each crisis event to which a C-I Team is dispatched, the C-I Team member shall gather data that ABHU shall utilize to track and report data on public safety system interactions with individuals with perceived or actual mental illness or who are in crisis. These data shall include:
a. Date, time, and location of the incident; b. Subject’s name, age, gender, and address; c. Whether the subject was armed, and the type of weapon; d. Whether the subject is a U.S. military veteran; e. Complainant’s name and address; f. Name and DPSST number of the officer on the scene; g. Whether a supervisor responded to the scene; h. Techniques or equipment used; i. Any injuries to officers, subject, or others; j. Disposition; k. Whether a mental health professional responded to the scene; l. Whether a mental health professional contacted the subject as a result of the call; and m. A brief narrative of the event (if not included in any other document).

Status

Partial compliance – ongoing obligation

Analysis

In February 2015, PPB addressed its unacceptable low recording of ECIT interaction by introduction of a template for recording interactions. See PPB compliance report 2015 Q1, Item 105.
PPB has begun collecting the above data, and as of April 2015, PPB reports that an automated ECIT template is now available. The report as provided in the 2015 Q2 update appears to collect the data anticipated by this provision. However, the proposed policy governing this reporting requirement only required the report of
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Technical Assistance

“ECIT members who participate in a mental health crisis call by using their crisis intervention skills.” See Directive 850.20-Police Response to Mental Health Crisis, Second Universal Review: 4/3/15-5/2/15 (emphasis added). And, the ECIT report for 2015 Q2 provides that the data for were collected “to which an ECIT officer applied his/her advanced training.” See PPB 2015 Q2 compliance report, Item 105. As provided by this section PPB needs to capture data for all crisis events (regardless of whether advanced training skills were used) to which ECIT are dispatched. Certainly such a form can include a breakdown of the types of skills used for assessment of the overall data.
PPB has begun reporting data, although it can report the data in a more meaningful way. PPB needs to develop metrics to assess whether it is achieving desired outcomes from encounters with persons in crisis.
PPB must complete its revision of crisis intervention directives and BOEC dispatch policies. Only when there is consistency and broad use of ECIT interactions will PPB be able to develop more reliable data.

D. Mobile Crisis Prevention Team
106. PPB currently has an MCPT comprised of a two-person team, one sworn officer and one contractor who is a qualified mental health professional. Within 120 days of the Effective Date, City shall expand MCPT to provide one MCPT car per PPB precinct.

Status

Substantial compliance – ongoing obligation

Analysis

PPB reports that each precinct has an MCPT (now called Behavioral Health Response Team or BHRT) unit, which is comprised of a PPB BHU officer and a Cascadia Project Respond staff member. We observed, and our consultant conducted a ride-along with, one such unit in the Central Precinct.

Technical As noted in our technical assistance letter dated 8/17/15, we commend PPB for its Assistance established BHRT unit.

107. Each MCPT car shall be staffed by one sworn PPB officer and one qualified mental health professional. MCPT shall be the fulltime assignment of each such officer.

Status

Substantial compliance – ongoing obligation

Analysis

PPB reports that each precinct’s BHRT car is staffed by a PPB officer and a mental health professional from Project Respond. The United States’ observations confirmed this was the case at Central Precinct. During our June meetings, PPB informed us that it currently funds these three full-time Project Respond staff members.

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Technical Assistance

108. No officers may participate in MCPT if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of MCPT service, or during MCPT service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the MCPT.

Status

Compliance rating pending – insufficient documentation

Analysis

PPB has not reported that the ABHU Advisory Committee has assisted in defining the relevant criteria. Furthermore, PPB states that there was a selection process for MCPT, but PPB does not set forth any formal selection process, let alone a procedure for assessing disciplinary records through PSD. See PPB compliance report 2014 Q4. The 2015 Q2 update provides that BHU continues to monitor BHRT member to ensure they meet the qualifications, but no SOP for this process is identified, and PPB did not produce any documents in its folder corresponding this Paragraph.
This contrasts with PPB reporting on the mirror provision in above in Paragraph 101. Therein, PPB acknowledges it must have a formal selection process and SOP for interactions with PSD to screen ECIT candidates.
The United States’ assessment of this provision is not meant to imply that any MCPT (now BHRT) member does not meet the criteria defined by this provision. PPB reports that it reviews all applicants for compliance with this criteria.
PPB did not produce documents in folders related to this paragraph in support of its self assessment for 2014 Q4 or 2015 Q1 or Q2.

Technical Assistance

PPB must formalize a process with the ABHU Advisory Committee. PPB should consider having a simplified process and SOP that applies to both Paragraph 101 and this Paragraph.

109. PPB shall specially train each MCPT member before such member may be utilized for MCPT operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for MCPT members.

Status

Partial compliance – ongoing obligation

Analysis

PPB lists a number of trainings outside PPB in which BHRT members participated. See PPB 2015 Q2 compliance report, Item 109. PPB reports that the additional training for BHRT units is outlined in SOP 3-2, which was reviewed by the BHU Advisory Committee in August 2014. The Committee’s status report, provided in Item 96 for the 2015 Q2 Quarterly update, provides a listing of the SOPs reviewed
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relating to the BHU, including SOP 3-2.
Technical PPB must continue to seek the advice of the ABHU Advisory Committee’s Assistance contribution to BHRT training every two years as required by the SOP.

110. MCPT shall utilize C-I Team data to proactively address mental health service, in part, by connecting service recipients with service providers.

Status

Partial Compliance – ongoing obligation

Analysis

During our June meetings, the BHU provided specific examples of how the BHRT proactively connects individuals referred to the BHU with service providers, and continues follow-up with such individuals to determine the success of such contacts.
PPB lists a number of collaborative meetings. See PPB 2015 Q2 compliance report, Item 110. This includes discussion of jail diversion and “Justice Triage Beds” at CATC. Ibid. But there are no examples of utilization.

Technical PPB needs to provide additional examples of how it is using data to implement this Assistance Paragraph.
Consistent with Paragraph 105, above, PPB must develop consistent, reliable data. Use of such data is necessary to implement Paragraph 110.

111. Within 180 days of the Effective Date, PPB, with the advice of the ABHU Advisory Committee, shall develop policies and procedures for the transfer of custody or voluntary referral of individuals between PPB, receiving facilities, and local mental health and social service agencies. These policies and procedures shall clearly describe the roles and responsibilities of these entities and of MCPT officers in the process.

Status

Noncompliance – ongoing obligation

Analysis

PPB reports that it previously initiated some discussions with system partners to define moment of transfer, and that PPB would initiate discussions with the United States for clarification of what Paragraph 111 requires. See PPB compliance report 2014 Q2 - 2015 Q2. PPB continues to assert they need clarification from the United States on this provision. While the United States is certainly willing to engage is such discussions, we confirmed that we previously did not receive a request from PPB for such a meeting. Furthermore, no supporting documentation was provided to confirm that any discussion with the BHU Advisory Committee has taken place concerning this provision, nor what the discussion with system partners included.
This assessment of non-compliance is not a claim that PPB is unwilling to work on developing such policies and procedures. Indeed, other work PPB is undertaking

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demonstrates that PPB is interested in implementing this type of provision. For example, in its reporting for Paragraph 89, PPB asserts it has been part of a transportation task force to use EMS for transports to the new Unity Center when appropriate in place of a patrol car. See PPB 2015 Q2 compliance report, Item 89. This effort and policies surrounding it should be part of the policy discussion occurring between PPB and the BHU Advisory Committee.

Technical Assistance

PPB must work with the BHU Advisory Committee to draft policies and procedures for the transfer of custody or voluntary referral of individuals between PPB, receiving facilities, and local mental health and social service agencies. The United States looks forward to PPB initiating a meeting with us to further discuss.

E. Service Coordination Team
112. The Service Coordination Team (“SCT”), or its successor, shall serve to facilitate the provision of services to individuals who interact with PPB that also have a criminal record, addictions, and highly acute mental or physical health service needs.

Status

Partial compliance – ongoing obligation

Analysis

PPB reports that SCT continues to serve the target population, and that it proposed and received approval from City Council on June 25, 2015 to add six (6) “behavioral stabilization beds” to its transitional care facility, as well as increasing the capacity of the program generally. Such expansion did not require additional funding, but reallocated the budget through a contract with Central City Concern. See PPB 2015 Q2 compliance report, Item 112. We commend PPB for using such transitional facilities to assist BHRT to connect individuals to community services, and that the SCT program will include peer support.
In its proposal to add the behavioral stabilization beds, PPB identifies measures for whether the program is working. We look forward to reviewing PPB’s analysis of such data for whether these or other outcomes are being met (e.g. housing stability and reduction of arrests). For example, the data collected for Q1 of FY2014-15 included a comparison of the number of arrests for all program participants before and after participation; presumably much more time elapsed before each participant entered the program than since, however, and PPB provides no measure of how the number of arrests relates to time.

Technical We will continue to assess SCT’s expanded services in the coming year. Assistance PPB should track program outcomes to evaluate the efficacy of SCT.

F. BOEC
113. Within 120 days of the Effective Date, BOEC and PPB, with the advice of the ABHU Advisory Committee, shall complete policies and procedures to triage calls related to mental health issues, including changes to protocols for assigning calls to Multnomah County Crisis Call
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Center, and adding new or revised policies and protocols to assign calls to the PPB ABHU or directly to NGOs or community-based mental health professionals.

Status

Noncompliance – ongoing obligation

Analysis

BOEC has established protocols for direct dispatch of ECIT officers, as well as diverting calls to the Multnomah County Crisis Line (MCCL). While the United States received copies of these two protocols during our visit in June 2015 (showing the last revision date as May 14, 2014), we have not received supporting documentation that such protocols were revised with the advice of the BHU Advisory Committee. In addition, BOEC and the City disclosed that the agency does not make a determination whether incoming calls involve a mental health component.
PPB states that BOEC protocols for triaging mental health calls date prior to the signing of the Agreement, and prior to the inception of the BHUAC. Such protocols include diverting calls to the MCCL and ECIT dispatch. While BOEC asserts that such protocols were initially reviewed by the BHU Advisory Committee, PPB’s quarterly updates do not reflect that such advice was sought, nor are any supporting documents provided demonstrating that either BOEC or PPB have revised these protocols with the advice of BHUAC.
Furthermore, while the reference guide for diverting calls to the MCCL refers to both a Suicide Reference Guide and a Project Respond Reference Guide, the United States has not been provided with a copy of these guides, nor is there any indication or supporting documentation that either PPB or BOEC has sought the advice of the BHUAC on these related protocols.
Moreover, because BOEC and PPB track only those subsets of mental health calls dispatched to ECIT or assigned to the County Crisis Call Center, and not those calls dispatched to Non-ECIT officers, Portland has no data to demonstrate that the status quo in any way adequately triages the mental health calls received.
Portland has agreed to collect such data. In the meantime, PPB has asserted that it has revised the BOEC ECIT dispatch protocols and implemented the same, to include all suicide calls as discussed herein. This is a positive step. The Memphis Model also calls for intake to make an initial assessment of whether each call involves a crisis event, and to dispatch all such calls to crisis-intervention specialists; even BOEC’s modified protocol would not, as yet, encompass this core element of the Memphis Model. We look forward to reviewing all future revisions to the dispatch protocols.
PPB includes the following documents in its folders related to paragraph 113 for 2014 Q4-2015 Q2: graphical breakdowns of the number of calls BOEC transferred to the Multnomah County Crisis Line (MCCL) each month, and for 2014 Q4, statistical descriptions of ECIT calls. PPB reports BOEC having diverted 339 calls in the past three quarters to MCCL (124 calls in 2014 Q4; 123 calls in 2015 Q1; and 92 calls in 2015 Q2). See PPB 2014 Q4 -2015 Q2 compliance reports, Item 113. We commend BOEC for such results, and look forward to receiving reports on any further efforts to divert calls directly to the BHU/BHRT, and/or NGOs or other
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community based mental health professionals as provided in this provision.

Technical Assistance

As discussed herein, the City has agreed to update its BOEC protocols for the direct dispatch of ECIT officers to include all suicide calls. Additional steps are required for compliance with the Memphis Model. We look forward to receiving further information on efforts to triage and divert calls to other other services.

Even with the commendable use of the MCCL, we must receive supporting documentation that PPB has sought the with the advice of the BHU Advisory Committee for any revisions or additional protocols relating to this provision going forward.

114. Within 180 days of the Effective Date, the City will complete training of all BOEC Dispatchers in Crisis Triage. The City, with the advice of the ABHU Advisory Committee, shall develop ongoing training for BOEC Dispatchers.

Status

Partial compliance – ongoing obligation

Analysis

We appreciate PPB engaging BOEC to take a role in BOEC training. The slide presentation PPB produced appears to be thoughtfully prepared and represents a net benefit. PPB has reported in their 2014 Q4 update and 2015 Q1 update that the BHU Sergeant, CIT Coordinator, and Crime Analyst presented at BOEC InServices training on October 20-21, and Nov 7-8, 2014; as well as January 15-16, 2015.
Nevertheless, this Paragraph contemplates a more expansive training, and PPB needs to obtain the guidance of the BHUAC in developing a compliant training. A core element to a crisis intervention program is training dispatchers to not only recognize a call involving a behavioral crisis event, but the appropriate questions to ask the caller that will help the responding officer.

Technical Assistance

Technical assistance on this issue is provided by separate letter.
Once BOEC and PPB develop the policies and procedures required by Paragraph 113, the City will have to develop training consistent with those policies and procedures.

115. Within 180 days of the Effective Date, the City shall ensure Crisis Triage is fully operational to include the implementation of the policies and procedures developed pursuant to the above paragraph and operation by trained staff.

Status

Noncompliance – ongoing obligation

Analysis

PPB and BOEC have established protocols for direct dispatch of ECIT officers and diversion of calls to the MCCL, and it appears from the data received on dispatch of ECIT officers and calls diverted to MCCL that BOEC is following those

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protocols. As set forth above, the United States remains concerned as to whether the policies and practices in place ensure that mental health-related calls are adequately covered. BOEC and PPB candidly admit that many calls with a mental health component are not coded as such nor dispatched to ECIT officers. This does not comply with the Memphis Model.
BOEC asserts that it will dispatch officers as prescribed by PPB. As stated above, PPB has agreed to expand BOEC’s protocol to include all suicide calls to the set of calls it diverts to ECIT officers, and the United States has recommended as an interim measure that PPB officers be required to assess whether a secondary dispatch for an ECIT officer is appropriate where mental health issues arise at the scene. PPB continues to gather data in an effort to demonstrate that its current triage processes suffice.
Technical Technical assistance on this issue is provided by separate letter dated 8/17/15. Assistance

VII. EMPLOYEE INFORMATION SYSTEM
116. PPB has an existing Employee Information System (“EIS”) to identify employees and design assistance strategies to address specific issues affecting the employee. See PPB Manual 345.00. PPB agrees to enhance its EIS to more effectively identify at-risk employees, supervisors and teams to address potentially problematic trends in a timely fashion. Accordingly, within 90 days of the Effective Date, PPB shall:
a. Require that commanders and supervisors conduct prompt reviews of EIS records of employees under their supervision and document the review has occurred in the EIS performance tracker;
b. Require that commanders and supervisors promptly conduct reviews of EIS for officers new to their command and document the review has occurred in the EIS performance tracker; and
c. Require that EIS staff regularly conduct data analysis of units and supervisors to identify and compare patterns of activity.
117. PPB agrees to collect data necessary to conduct these analyses at supervisor- and teamlevels.

Status

Partial compliance – ongoing obligation

Analysis

Current Directive 345.00, Employee Information System, is available at https://www.portlandoregon.gov/police/article/525764. (PPB’s 2014 Q4 folder for Paragraphs 116 and 117 contains an internet shortcut that appears intended to link to Directive 345.00, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1219908401.) On May 8, 2015, we provided PPB with written comments on this policy. On May 14, 2015, we met with City officials and provided comments to this policy.
PPB’s 2015 Q1 and Q2 data sets include memos from the EIS administrator
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regarding compliance with Paragraph 116(b) regarding a supervisor’s responsibility to perform an EIS review for officers newly under their command. The EIS administrator provides concrete data and identifies a lack of timely EIS reviews. The administrator also suggests strategies to increase compliance, namely a tracking of tardy supervisors and a method for following up with them. This is solid work in identifying and addressing a compliance issue. The Q2 memo addresses compliance with Paragraph 116(b).
In PPB’s quarterly compliance report, PPB explains its tracking of supervisor training on EIS use. This is helpful to understand the steps necessary for full EIS utilization.
PPB’s quarterly report also states that PPB has a new methodology for sampling units for EIS assessment. Going forward, we will assess this methodology and its efficacy.
As discussed in Paragraph 74, above, on July 30, 2015, PPB advised us that it is encountering a data problem in the recording of its force and interaction data that inhibits PPB’s ability to analyze these data. PPB switched to the RegJIN data recording system from a former customized, but antiquated database. The switch has resulted in a data gap from May 2015 to present, wherein PPB officers reportedly have completed FDCRs, but PPB analysts have to manually enter the data into RegJIN. RegJIN also has a geocoding error even for newly created FDCRs in which RegJIN fails to accurately recognize abbreviations for streets and locations. PPB has been forthright in advising on the limitation it discovered in RegJIN and is working on finding solutions to both problems. In response to our specific questions, PPB was candid that RegJIN’s data issues inhibit PPB’s ability to use its EIS. Accordingly, until RegJIN is fully functional, PPB has at least a time lag in the entry of data available for the EIS system. This undercuts the earlyintervention aspect of the EIS.
Technical PPB should revise Directive 345.00 consistent with our provided comments. Assistance PPB must take the next step to ensure trained supervisors are utilizing EIS for all of
their subordinates, not merely for new officers.
PPB’s failure to collect Force Data Collection Reports and After Action Reviews for officer involved shootings, as described in Paragraph 74, above, prevents PPB from coming into compliance with the Paragraph 117. PPB must collect accurate force data from all members in order to conduct supervisor- and team-level analyses.
PPB’s EIS will not provide effective early intervention until PPB and its vendor can resolve RegJIN’s data gaps.
118. PPB shall continue to use existing thresholds, and specifically continue to include the following thresholds to trigger case management reviews:
a. Any officer who has used force in 20% of his or her arrests in the past six months; and
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b. Any officer who has used force three times more than the average number of uses of force compared with other officers on the same shift.
119. Within 90 days of the Effective Date, PPB shall add one additional threshold to trigger case management review any officer who has three uses of force in a one-month period.

Status

Compliance rating pending

Analysis

Commendably, PPB contracted with an outside vendor to adapt its existing EIS system to include the “three uses of force in a one-month period” as required by Paragraph 119. PPB completed this revision and operationalized the new trigger in 2014 Q4.
PPB reports that, in the following quarter, EIS triggered 129 force-related alerts, but PPB’s EIS administrator determined that only two of those should be sent to the officers’ supervisors. See PPB 2015 Q1 compliance report, Items 118-119. This appears to be quite a low level of referral, and we will follow up with PPB to more closely examine this issue in our ongoing monitoring.
For 122 of those force-related alerts, the EIS administrator justified declining referrals stating that the force events were “within policy and there were no patterns of activity to address.” We plan to follow up with the EIS administrator on-site to review and assess these declinations.
PPB’s compliance report and data sets do not indicate that the EIS administrator referred the 127 declined EIS triggers to PPB’s Professional Standards Division. Directive 345.00 requires such a Professional Standards review. See Directive 345.00, Section 2.1.2. We will conduct further research into this issue in our ongoing monitoring.
PPB’s 2015 Q2 data set did not contain documents in the folders dedicated to Paragraphs 118-119.

Technical Assistance

The EIS Administrator must be willing to critically assess triggered events and utilize supervisors for reviews. Supervisors are more familiar with officers in their chain of command and deserve the opportunity to utilize the EIS for career-saving and career-enhancing interventions.

PPB must ensure that it follows its own policy for Professional Standards reviews of EIS triggers for which there is no Supervisory Review.

120. Within 90 days of the Effective Date, PPB shall identify and train a second EIS administrator. This individual may be assigned to other tasks within the Professional Standards Division or as otherwise needed.

Status

Compliance rating pending

Analysis PPB’s 2015 Q1 and Q2 data sets each have an empty folder for Paragraph 120. PPB’s 2014 Q4 data set has no folder for Paragraph 120.

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PPB’s quarterly compliance report indicates that PPB selected and trained a second EIS administrator in 2014, but that a different person has served in that role since March 2015. PPB 2015 Q2 compliance report, Item 120. We will verify that the current second administrator is trained on EIS administration during our ongoing monitoring.
Technical PPB should ensure its second EIS administrator is trained as such. Assistance

VIII. OFFICER ACCOUNTABILITY
PPB and the City shall ensure that all complaints regarding officer conduct are fairly addressed; that all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. The City and PPB seek to retain and strengthen the citizen and civilian employee input mechanisms that already exist in the PPB’s misconduct investigations by retaining and enhancing IPR and CRC as provided in this Agreement.
A. Investigation Timeframe
121. PPB and the City shall complete all administrative investigations of officer misconduct within one-hundred eighty (180) days of receipt of a complaint of misconduct, or discovery of misconduct by other means. For the purposes of this provision, completion of administrative investigations includes all steps from intake of allegations through approval of recommended findings by the Chief, including appeals, if any, to CRC. Appeals to CRC shall be resolved within 21 days.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s 2014 Q4 data set folder for Paragraph 121 includes a memo from the commander of the Professional Standard Division (“PSD”) describing investigations that exceeded 180 days. IA has allocated its portions of the 180-day timeline for each step in its process. For these investigations, the PSD identified each step that exceeded its allocated portion of the timeline. Some justifications for exceeding the timeline were reasonable, e.g., disabled status of the involved officer (Case #2013-B-0035); some were not, e.g., loss of a file by a responsible unit manger (Case #2013-B-0046) or a 21-day delay for an officer interview due to inclement weather (Case #2014-B-0001). With some consistency, PSD’s memos identified four sources of delays within PPB: (1) delays in officers providing interviews, (2) delays in responsible unit managers timely returning files, (3) delays for additional administrative investigation, and (4) delays for consideration of associated criminal allegations. The memos also identified delays outside PPB, namely delays in IPR’s intake or IPR’s review of findings.
PPB provides some solid data on PSD’s tracking of its portion of the 180-day deadline. See PPB 2015 Q1 compliance report, Item 121; Memorandum RE “2014 Year End Report/Response to US-DOJ Action Item #123, Administrative
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Investigation Timeframe Targets,” Aug. 21, 2015 (produced in PPB 2015 Q2, Folder 123). PPB reports that only 26% of 2013 internal affairs investigations met the 180-day deadline. In 2014, 32% of investigations met the deadline. PSD reports that 50% of the cases completed in each of the first two quarters of 2015 met the 180-day deadline. This is laudable progress.
PPB has taken some steps to address the missed deadlines. PPB provided copies of memoranda requiring that investigative files be logged in and out, implementing interim deadlines for review, and requiring that Responsible Unit commanders explain in writing the cause for any investigations that extend beyond the 180-day deadlines. See PPB 2015 Q2 Quarterly Report, Paragraph 121; PPB 2015 Q2, Folder 123.
The City has reportedly passed an ordinance change to collapse the time for CRC appeals from 60 to 21 days. See PPB 2015 Q1, Folder 123, DOJ Updates Notes. However, it does not appear that any appeal has been filed pursuant to this new ordinance. See Auditor’s Office-IPR/CRC Procedures and Guidelines available at http://www.portlandonline.com/auditor/index.cfm?c=27455. DOJ will continue to monitor this issue.
Note: PPB’s 2015 Q1 and Q2 folders for Paragraph 121 did not contain documents.
On February 10, 2015, we conducted an interview of IPR staff to discuss compliance with the accountability provisions of the Settlement Agreement. With respect to Paragraph 121, IPR noted that its four additional investigators should shorten the timelines for its investigations. IPR also explained various timelines for different types of cases and that IPR freely provided extensions of time for its portion of investigations. Understandably, as an independent agency IPR’s extensions and timeliness do not depend on PSD’s approval or disapproval. IPR and PSD still must come together to address in a more global fashion the timeline, division of labor, and reducing redundancies as discussed in our May 14, 2015 meeting with the City.
On June 24, 2015, the PPA President sent a letter to the City Auditor claiming that Settlement Agreement Sec. VIII and Paragraph 121 (incorrectly cited as 120 in the letter) create a due process right for subject officers accused of wrongdoing. Further, the author stated that IPR investigation 2014-C-0265 of three PPB members stemming from a juvenile court case must be dismissed based on this alleged due process violation. The underlying premise that Section VII or Paragraph 121 creates a due process right is incorrect. Settlement Agreement Paragraph 5 plainly states that no person or entity is intended to be a third party beneficiary of any provision for any administrative action and no person may assert a right as a beneficiary under the Settlement Agreement. IPR informed us that it would continue its investigation notwithstanding PPA’s letter. This is an appropriate way to proceed. Though the City must complete investigations in a timely fashion, there is no basis to dismiss this investigation for the City’s failure to have resolved the investigation within the 180-day timeframe. On August 10, 2015, we provided PPA with clarification on this point by letter. We understand that IPR has refused PPA’s request, as well.
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Technical Assistance

Within PPB, there are at least two sources of delays that PPB management should definitively address: late officer interviews and responsible unit manager reviews. Even setting aside the 48-hour issue addressed below, delays of officer interviews have routinely exceeded 48 hours. PPB management should make the expectation clear that officers and complainants are entitled to expeditious resolution of IA complaints. Officers must timely provide interviews. Likewise, PPB management should make clear the expectation that responsible unit managers meet their deadlines or PPB will hold them accountable.

As discussed in our May 14, 2015 meeting with the City must address in a more global fashion IPR’s and PSD’s timelines, division of labor, and redundancies.

The City should make clear that there is no statute of limitations on reaching resolution to internal affairs complaints.

122. PPB shall conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a concurrent criminal investigation, or as otherwise provided by law, or as necessary to meet the CRC or PRB recommendation to further investigate.

Status

Compliance rating pending

Analysis

PPB represents that its current practice is to conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. With our continued monitoring, we will review a sample of investigations to verify this claim. We will also be looking for documentation of the tolling periods and overall time periods for resolving administrative investigations. PPB did not produce documentation in its folder related to self-assessment of this Paragraph between 2014 Q4 and 2015 Q2.

Technical The City should consider interaction with between the District Attorney and the Assistance Chief of Police to accelerate those prosecutors’ consideration and resolution of
potentially criminal allegations that involve PPB members.

123. If PPB is unable to meet these timeframe targets, it shall undertake and provide to DOJ a written review of the IA process, to identify the source of the delays and implement an action plan for reducing them.

Status

Partial compliance – ongoing obligation

Analysis

On February 10, 2015, we met with representative of IPR and PSD. We inquired with both offices regarding their progress in meeting the Settlement Agreement’s requirement for timely administrative investigations and any efforts to identify and remedy cause of delays. Both offices had worked on timeliness, but neither had a

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remediation plan.
On February 27, 2015, PPB’s Chief provided us a memo in response to Paragraph 123. Therein, the Chief outlined PPB’s 13 separate administrative tracks for investigation, candidly assessed timeliness, and described direction PPB gave to responsible unit supervisors regarding the timeliness of their reviews. The memo contained a frank assessment, but not the final word on the source of delays or plans of remediation. The Chief’s memo made clear that PPB has more work to do.
Both the PPB’s 2014 Q4 and PPB’s 2015 Q1 data sets have folders for Paragraph 122 that contain the same sort of memoranda discussed above in Paragraph 121. Namely, these are memos for each internal affairs investigation that spanned more than 180 days. This is a significant undertaking.
PPB provided a more comprehensive written review of delays, including identifying steps in the process where these delays manifest. The memorandum stated that changes designed to bring PPB practices into compliance with the Settlement Agreement have addressed previous sources of delay; the memorandum did not focus on additional steps that could be taken to resolve current delays.
A December 31 memo from the PSD Lieutenant to the PSD commander did propose one solution. The Lieutenant recommends a solution to the timeline for officer involved shooting cases:
As we have previously discussed, my proposal to fix this issue is to eliminate the RU manager’s findings and many of the other redundant review stages. This is in line with OIR recommendations, and it would allow us to drastically reduce the time for this case track. According to the proposed timeline developed by Christina Snider, we would save 58 days and have a case track that was only 126 days. If this case track is implemented, I would recommend putting four weeks of the saved time back into the investigation (administrative/criminal) and training analysis stages. This would give us a case track that would be completed in 154 days, with a total of ten weeks dedicated to the critical investigative portion of the process.
PPB could use these observations and suggestions in ultimately developing a plan as required by Paragraph 123 and as part of the larger effort to address IPR’s and PSD’s timelines, division of labor, and redundancies discussed in our May 14, 2015 meeting with the City.
Technical PPB’s multi-track system adds to the byzantine structure of administrative Assistance investigations. As part of a global assessment of administrative investigations, PPB
would benefit from simplification of its system.
PPB along with IPR should engage in a root-cause analysis of the timeliness of administrative investigations and, based on that analysis, produce the written action plan required by Paragraph 123.
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B. On Scene Public Safety Statements and Interviews
124. Within 90 days of the Effective Date, the City and PPB shall review its protocols for compelled statements to PSD and revise as appropriate so that it complies with applicable law and current professional standards, pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). The City will submit the revised protocol to DOJ for review and approval. Within 45 days of obtaining DOJ’s approval, PPB shall ensure that all officers are advised on the revised protocol.

Status

Noncompliance – ongoing obligation

Analysis

PPB’s compliance report states that PPB has determined that its protocols are consistent with Garrity. PPB 2015 Q2 compliance report, Item 124. In practice, that is not the case. As discussed in Paragraph 74, above, in some of the most high profile uses of force, officer-involved shootings, PPB failed to collect non-Garrity Force Data Collection Reports, as required by professional standards and PPB’s own policy. Officers must complete routine force reports and may not assert a Garrity protection unless the authoring officer has an objectively reasonable belief that he or she will subject him or herself to criminal self incrimination. See Department of Justice Letter to Mayor Michael McGinn, November 23, 2011 (containing our prior guidance on this issue), available at http://www.justice.gov/crt/about/spl/documents/seattlepd_TA_11-23-11.pdf.
PPB’s compliance report also states that PPB is working on a standard operating procedure with the district attorney and union for eventual submission to the Department of Justice. PPB 2015 Q2 compliance report, Item 124.
PPB’s did not produce documents related to Paragraph 124 in support of its quarterly compliance self-assessments reports for 2014 Q4, 2015 Q1, or 2015 Q2.

Technical PPB must complete its protocol based on a candid assessment of its current Assistance practice.
PPB must not give any indication that a non-Garrity Force Data Collection Report is anything but that. PPB must remove its Department of Justice mandate language from the top of its reporting forms.
As noted in Paragraph 180 of the Settlement Agreement, the DOJ recognizes that many portions of the Agreement will not only take time to implement, but may require changes to collective bargaining agreements, city code, and/or current city policies.

125. Separation of all witness and involved officers to lethal force events is necessary in order to safeguard the integrity of the investigation of that event. Immediately following any lethal force event, PPB shall continue to issue a communication restriction order (“CRO”) to all witness and involved officers, prohibiting direct or indirect communications between those officers regarding the facts of the event. The CRO will continue, unless extended further, until the conclusion of the Grand Jury or, if no Grand Jury is convened, until a disposition is determined by the District Attorney.
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Status

Partial compliance – ongoing obligation

Analysis

We requested and PPB provided the investigative files for the May 17, 2015 and June 28, 2015 officer involved shootings. These files included communication restriction orders for the involved PPB members and, apparently, certain witness officers.
With respect to the June shooting incident, a Sergeant issued one involved Officer a communication restriction order on 6-29-15 at 0303, 3 hours 15 minutes after the shooting. See casebook 15-216504, PDF page 518, Bates page 512. The Sergeant issued the other involved Officer a communication restriction order on 6-29-15 at 0235, 2 hours 45 minutes after the shooting. See casebook 15-216504, PDF page 520, Bates page 514. In the time between the shooting and before the notification or arrival of IPR staff, however, PPB permitted the involved officers to view a video taken from a Taco Bell restaurant at the scene shooting. See July 20, 2015 IPR memo. The entire 604-page casebook for 15-216504 does not make any mention of the Taco Bell video. Settlement Agreement Paragraph 125 requires “immediate” communication restriction orders. The 2:45-3:15 delay in this case, and the intervening review of a Taco Bell video not even mentioned in the casebook, present a serious impediment to compliance with Paragraph 125.
On July 20, 2015, IPR sent PPB a memo informing them that neither IA nor IPR was notified for more than 2.5 hours after the shooting. Nevertheless, the documentary record PPB supplied surrounding the shooting contained no mention of this delay, of the delay in imposing the CROs, nor of the viewing of the video in the interim.
PPB reports no officer involved shootings in the last quarter of 2014, and one in the first quarter of 2015. PPB produced no documents in its 2014 Q4 and 2015 Q1 folders. The 2015 Q2 folder included communication restriction orders for the two aforementioned officer involved shootings in 2015 Q2, and the related rescission orders.

Technical PPB should clarify in the relevant directive which entity is responsible for the Assistance administration of communication restriction orders and how the date should be
recorded when a communication restriction order is lifted.
PSD and the Inspector also should continue to ensure that CROs are in place in a timely fashion and not removed until the threshold under Paragraph 125 passes.

126. PPB shall continue to require witness officers to lethal force events to give an on-scene briefing to any supervisor and/or a member of the Detective Division to ensure that victims, suspects, and witnesses are identified, evidence is located, and provide any information that may be required for the safe resolution of the incident, or any other information as may be required.

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Status

Compliance Pending– ongoing obligation

Analysis

PPB represents that there were no witness officers to provide an on-scene briefing for the officer involved shootings on June 28 this year. For the May shooting, PPB treated the officer who used a less lethal round as an involved officer, not a witness officer. PPB’s quarterly 2014 Q4 folder does not exist for Paragraph 126. PPB’s quarterly Q1 folder for paragraph 126 is empty. The 2015 Q2 folder for Paragraphs 125 and 126 contained only the communication restriction orders, mentioned above.

Technical PPB should clearly delineate that officers who do not use lethal force during a Assistance lethal force incident are witness officers rather than involved officers, even if they
are involved in non-lethal force occurring during the incident.

127. In agreement and collaboration with the Multnomah County District Attorney, PPB shall request that involved officers in lethal force and in-custody death events provide a voluntary, onscene walk-through and interview, unless the officer is incapacitated.

Status

Partial compliance – ongoing obligation

Analysis

In PPB’s quarterly compliance report, PPB indicates that voluntary interviews occurred for officer involved shootings in 2013 and 2014, and that the officers involved in all three 2015 shootings declined to submit to voluntary interviews. See PPB 2015 Q2 compliance report, Item 127. Narratives from the investigating detectives reported that the officers involved in the 2015 shootings were asked to provide walk-throughs and interviews, and declined on the advice of their counsel.
PPB represents that it does not take public safety statements from involved officers. PPB did not provide evidence of any consultation with the Multnomah County District Attorney. (PPB’s quarterly 2014 Q4 folder does not exist for Paragraph 127. PPB’s quarterly Q1 folder for Paragraph 127 is empty.)

Technical PPB must continue to collaborate with the Multnomah County District Attorney on Assistance this issue and provide us evidence of these collaborations.
PPB departs from national policing best practices by not requiring public safety statements from involved officers.

C. Conduct of IA Investigations 128. Currently, both IPR and PPB’s PSD have authority to conduct administrative investigations, provided that IPR interview of PPB Officers must only be conducted jointly with IA. Within 120 days of the Effective Date, the City will develop and implement a plan to reduce time and effort consumed in the redundant interview of witnesses by both IPR and IA, and enable
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meaningful independent investigation by IPR, when IPR determines such independent investigation is necessary.

Status

Noncompliance – ongoing obligation

Analysis

Both IPR in the February 10, 2015 interviews and PPB in its compliance report cited the addition of new IPR investigators and IPR’s ability to conduct independent investigations under revised City ordinances as improvements. These are laudable achievements.
PPB’s quarterly compliance report states that IA and IPR are working well together but provides no plan. See PPB 2015 Q1 compliance report, Item 128. Paradoxically, the report states “[t]his plan is in effect,” but gives no such plan. Ibid. For Paragraph 128, PPB’s quarterly 2014 Q4 folder does not exist and PPB’s quarterly 2015 Q1 and Q2 folders for paragraph 128 are empty.
As addressed above in Section A (Paragraphs 121-123), in our May 14, 2015 meeting, we asked the City to establish a work group to fundamentally address this requirement of the Settlement Agreement. In connection with that meeting and suggested work group, we offered comments on:
Directive 330.00 – Internal Affairs, Complaint Intake and Processing
Directive 331.00 – Service Improvement Opportunities
Directive 332.00 – Administrative Investigations
Directive 330.00 – Criminal Investigations of Police Bureau Employees
Directive 334.00 – Performance Deficiencies
Directive 335.00 – Discipline Process
Directive 336.00 – Police Review Board
Directive 337.00 – Police Review Board Selection
Though we offered comments to PPB’s exiting Directive proposals, PPB should not feel wedded to the existing structure. Rather, PPB’s work group can consider what shape a more global reform of officer accountability should take. We can provide comment to new policies, if the work group develops new ones.

Technical Assistance

As discussed in our May 14, 2015 meeting with the City, the City must address in a more global fashion IPR’s and PSD’s timelines, division of labor, and redundancies. Then it must develop, submit, and ultimately implement a formal plan.

129. The City and PPB shall ensure that all allegations of use of excessive force are subject to full and completed IA investigations resulting in findings, unless there is clear and convincing evidence to IPR that the allegation has no basis in fact.

Status

Partial compliance – ongoing obligation

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Analysis

As discussed in Paragraph 74, above, in the Inspector’s July 1, 2014 to September 30, 2014 force data summary, the Inspector noted that four force cases “were referred”—we do not know by whom based on the Inspector’s writing—to IA. PPB 2014 Q4 data set Folder 74. The Inspector notes that while IA is conducting investigation of two of those force instances, IA declined one force incident and IA is conducting additional intake to determine whether or not to open an investigation. Ibid. IA does not have the authority to decline any force investigation. The Inspector should be well aware of the Settlement Agreement’s accountability requirements.
On October 28, 2014, we wrote the City in response to excessive force complaints described in IPR’s 2013 annual report, posted October 23, 2014. Though the Court did not approve the Settlement Agreement until August 29, 2014, the City publicly asserted that it has been implementing the Settlement Agreement at least since its submission to the court on December 17, 2012, i.e., the time period covered by IPR’s 2013 report. As described in that letter, IPR dismissed outright three force complaints (2013-C-0365; 2013-C-0279; 2013-C-0372); IPR dismissed one but referred it back to the subject officer’s command (2013-C-0243); IPR referred one as a service improvement opportunity (2013-C-0266); and internal affairs declined one (2013-C-0264). None of the summaries offered clear and convincing evidence that the allegation of excessive force had no basis in fact. These all failed to comply with Paragraph 129.
Both the Inspector’s Audit and our own monitoring confirm that at least until February 2015, PSD continued to decline excessive force investigations. On February 10, 2015, we met with representatives from PSD and the City Attorney’s Office and discussed IA’s declination of force cases. PPB reports that, since that meeting, IA has not declined any force cases. We will continue to monitor this issue.
On March 10, 2015, we met with the City Auditor. In part, we discussed the clearand-convincing standard in Paragraph 129. On March 20, the City Auditor provided us a memo stating that IPR has instructed its staff on the standard as memorialized in revised IPR operation manual dated March 16, 2015, referencing City Code 3.21.070. Accordingly, IPR has promulgated the appropriate clear-andconvincing evidentiary standard for Paragraph 129.
PPB’s quarterly 2014 Q4 folder does not exist for paragraph 129. PPB’s quarterly 2015 Q1 and Q2 folders for paragraph 129 are empty.

Technical PPB should continue to track all complaints that include allegations related to force Assistance to ensure that PSD has not sought to decline or effectively declined any force
complaints since February 10, 2015.
Going forward, we will sample administrative investigation to ensure all force claims IPR forwards to PSD receive complete investigation.

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130. The City and PPB shall continue to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.

Status

Noncompliance – ongoing obligation

Analysis

Current PPB Directive 310.00 – Conduct, Professionalism is available at https://www.portlandoregon.gov/police/article/525489. This directive does not explicitly prohibit retaliation against persons who report misconduct or cooperate in misconduct investigations, but could have been read to generally include intimidation within the rubric of unprofessional conduct. (PPB’s 2014 Q4 folder for Paragraph 130 contains an internet shortcut that appears intended to link to PPB Directive 310.00, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1210059393. PPB’s 2015 Q1 and Q2 data sets have empty folders for Paragraph 130.)
In its quarterly compliance report, PPB states that it enacted a separate Directive, number 310.20, on November 19, 2014. See PPB 2015 Q2 compliance report, Item 130. Current Directive 310.20 Retaliation Prohibited is available at https://www.portlandoregon.gov/police/article/539607. This directive generally meets the prohibition requirements contained in Paragraph 130, but the City has nevertheless failed to substantively address allegations of intimidation.
Allegations of intimidation and harassment have undermined the credibility of the accountability system in both the eyes of IPR and PPA. We specifically do not take sides or opine on the veracity of allegations from either side of this issue, but describe a breakdown that has obstructed the City’s compliance with Paragraph 130.
On June 14, 2014, before the effective date but after the City represents that it was already implementing the Settlement Agreement, the City Auditor provided the PPB and the City a memo describing allegations of perceived intimidation following an IPR interview. Specifically, the Auditor claimed that a soliloquy between the PPA president and the IPR investigator left the investigator feeling intimidated. In response, IPR instituted a two-person rule, requiring two IPR investigators at interviews of officers—a significant dedication of time and expense to the City. The Auditor’s memo also cites a June 9, exchange between IPR and the City’s Human Resources Director, allegedly resulting in the Director’s determination that the PPA president had a “special relationship” with the City and, therefore, no investigation occurred for potential violation of Directive 310.00 (before Directive 310.20’s enactment). Accordingly, the City did not investigate the allegation or reach any findings. IPR was left without an answer to its allegation and the subject officer, i.e., PPA’s president, was left under the cloud of an unresolved accusation.
In response to IPR’s two-person rule, on October 6, 2014, PPA filed a grievance (2014-11). PPA accused IPR of intimidating its members by the mere presence of two IPR investigators during administrative investigation interviews of PPA members.

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Subsequently, in our February 10, 2015 interview with IPR staff, IPR detailed a situation in which they again alleged intimidation. Specifically, IPR staff alleged that the then PPB Chief had reportedly released confidential background information about one of IPR’s investigators and that PPA’s president obtained that information and had confronted others in a manner that IPR perceived as intimidating.
On March 12, 2015, the City Auditor provided City Commissioners a memo describing the same allegation IPR raised in our February 10, 2015 interview. The Auditor opined that the alleged incident undermined the accountability system and threatened to interfere with the City’s compliance with the Settlement Agreement. The Auditor specifically requested inquiry into whether other PPB members were involved in the alleged disclosure of the confidential background investigation. The Auditor also made reference to the prior Auditor’s June 14, 2014 memo. Thus, the City was aware of allegations of intimidation and had received a specific request to remedy the allegation.
On March 13, 2015, the Mayor responded to the Auditor. The Mayor agreed to conduct background investigations by an outside entity. This was a practical and positive remedy to address future occurrences, but did not address the past allegation. The Mayor indicated that there is “little” the City can do about allegations against a non-employee, i.e., the former PPB Chief. And the Mayor agreed with the Human Resource Director’s June 2014 assessment that there would be no action taken against the subject officer, i.e., due to the assertion of “a special relationship” with the PPA president. Thus, the City received an allegation on intimation by a sworn officer after the effective date of the Settlement Agreement and no investigation occurred for the potential violation of Directive 310.20. The Auditor was left without an answer to its allegation and the subject officer, i.e., PPA’s president, was left under the cloud of an unresolved accusation.

Technical Assistance

The City must not leave unanswered allegations of intimidation against individuals who report misconduct, make a misconduct complaint, or cooperate with an investigation of misconduct. Rather than assume that a “special relationship” merits the lack of an investigation, the City should develop a robust factual record to determine whether allegations occurred and, if they did, whether those allegations violated policy or were “otherwise authorized by law or policy” within the context of union representation. Directive 310.20. Likewise, the City should determine whether former officers took part in any alleged intimidation. The City’s refusal to conduct a full investigation of allegations of intimidation undermines the public confidence in the PPB and thereby unfairly clouds public perceptions of all officers.

131. The City and PPB shall retain Police Review Board procedures currently utilized for purposes of investigation and making recommended findings on administrative complaints, except as outlined below:

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a. Currently, seven voting members of the PRB review use of force incidents, including two citizen members. When PRB reviews uses of force case, one of the two citizen member slots shall be drawn from the Citizen Review Committee members.
b. The CRC slot on the PRB in use of force cases will rotate among the CRC membership so that different CRC members participate on the PRB. Within 60 days of the Effective Date, the Auditor shall develop a membership rotation protocol.
c. All members participating in the PRB must maintain confidentiality and be able to make thoughtful, unbiased, objective recommendations to the Chief of Police and Police Commissioner that are based on facts, consistent with PRB city code provisions and “just cause” requirements set forth in Portland City Charter, City rules, and labor agreements.
d. All community members and CRC members must meet the following qualifications to participate on the PRB:
i. Pass a background check performed by the Bureau.
ii. Participate in Bureau training to become familiar with police training and policies, including the PRB process.
iii. Sign a confidentiality agreement.
iv. Participate in ride-alongs to maintain sufficient knowledge of police patrol procedures.
e. Current city code provides that the City Auditor and the Chief have authority to recommend to City Council the removal of citizen members from the PRB pool. Likewise, the City Auditor or Chief shall have authority to recommend to City Council removal of a CRC member from serving on the PRB. The Chief or the City Auditor may recommend that City Council remove a community member or member of the CRC from the pool for the following reasons:
i. Failure to attend training;
ii. Failure to read Case Files;
iii. Objective demonstration of disrespectful or unprofessional conduct;
iv. Repeated unavailability for service when requested;
v. Breach of confidentiality;
vi. Objective demonstration of bias for or against the police; or
vii. Objective demonstration of conflict of interest.
f. Removal from participation in the PRB shall not affect CRC membership.
g. Like current PRB citizen members, CRC members serving on the PRB may serve in that capacity for no more than three (3) years.
h. A CRC member who participates in a PRB review shall recuse himself/herself during any later appeal of the same allegation(s) to the CRC.
132. By majority vote, the PRB may request that investigations of misconduct be returned to its investigating entity, i.e. PSD or IPR, to complete the investigation as to factual matters necessary to reach a finding regarding the alleged misconduct. The investigating entity must make
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reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the PRB explaining why additional time is needed.

Status

Partial compliance – ongoing obligation

Analysis

The City partially complies with the city code requirements for Paragraphs 131 and 132, and must demonstrate ongoing implementation.
Current Directive 336.00 is available at https://www.portlandoregon.gov/police/article/525753. The revised PRB directive became effective October 30, 2014. See PPB 2015 Q1 compliance report, Items 131, 132. (PPB’s 2014 Q4 folder for Paragraphs 131 and 132 contains an internet shortcut that appears intended to link to PPB Directive 336.00 –Police Review Board, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1219923552. PPB’s 2015 Q1 data set has an empty folder for Paragraphs 131 and 132; the corresponding folder for 2015 Q2 contains a list of policies.)
Directive 336.00, Section 3.1.1.6, provides for a CRC member to the PRB in force cases as required by Paragraph 131(a). The Directive does not describe rotation of CRC members as required by Paragraph 131(b). Section 3.1.1.6 refers to City Code 3.21.080 – Citizen Review Committee; however, that code provision does not address rotation, either.
Directive 336.00, Section 12, provides for the confidentiality requirement of PRB information as required by Paragraph 131(c). However, Directive 336.00 does not address Paragraph 131(c)’s other provisions concerning bias and objectivity.
Paragraph 131(d) sets forth required qualifications for CRC and community PRB members. Directive 336.00 does not address these. However, City Code separately answers qualifications criteria for each group. City Code 3.21.080(A)(3) requires CRC members to pass criminal background checks and not have a conflict of interest. Likewise, City Code 3.21.080(B) requires CRC members to take training, participate in ride-alongs, and sign a confidentiality statement. Similarly, City Code 3.20.140(C)(1)(b) requires community volunteers to pass a background check, participate in training, sign a confidentiality statement, and participate in ride-alongs.
Paragraph 131(e) sets forth removal criteria for CRC and community PRB members. Directive 336.00 does not address these. However, City Code 3.20.140(C)(1)(c) provides removal criteria for community members identical to Paragraph 131(e). City Code 3.20.140(C)(3) makes CRC participants in the PRB subject to the same qualification and removal criteria.
City Code 3.20.140(C)(5) provides that a CRC member’s removal for the PRB process shall not affect CRC membership as required by Paragraph 131(f).
Through City Code 3.20.140(C)(3)’s application of selection and removal criteria to CRC members, City Code 3.20.140(C)(1)(a) limits CRC members to a three-year term, as required by Paragraph 131(g).
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City Code 3.20.140(C)(4) provides that a CRC member who participates in a PRB review of an incident cannot participate in a later appeal to the CRC of the same allegation(s). This provision prohibits by ordinance what would give rise to requirement for recusal of CRC members as required by Paragraph 131(h).
Directive 336.00, Section 7.5 mirrors the additional factual investigation requirements of Paragraph 132.
Technical Note that in order to address the timeliness of administrative investigations, PPB Assistance may need to include in its potential substantive reform the 14 days permitted for
subject review before a PRB hearing. See Directive 336.00, Sections 8.3, 10.1.
PPB has developed a compliant policy and City Code, on its face. Going forward, in order to determine whether the City is in substantial compliance with Paragraphs 131 and 132, we will assess the PRB practice to ensure conformance with the revised PRB Directive and City Code.
Additional consideration should be given to include the text of Directive 336.00 in the City Code. Also, PPB should consider staggering the terms of the CRC members serving on the PRB to maintain experience given the limited number of cases that come up for review in any given year.

133. If an officer’s use of force gives rise to a finding of liability in a civil trial, PPB shall: (1) enter that civil liability finding in the EIS; (2) reevaluate the officer’s fitness to participate in all current and prospective specialized units ; (3) if no IA investigation has previously been conducted based upon the same allegation of misconduct and reached an administrative finding, conduct a full IA investigation with the civil trial finding creating a rebuttable presumption that the force used also violated PPB policy, which presumption can only be overcome by specific, credible evidence by a preponderance of evidence; (4) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, identify whether any new evidence exists in the record of the civil trial to justify the reopening of the IA investigation, and if so, reinitiate an IA investigation; and (5) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, and no new evidence from the civil trial justifies reopening the IA investigation, work with IPR to identify the reason why the administrative finding was contrary to the civil trial finding and publish a summary of the results of the inquiry.

Status

Partial compliance – ongoing obligation

Analysis

PPB’s quarterly 2015 Q1 folder for paragraph 133 contains new Standard Operating Procedure 42. PPB implemented this SOP on February 24, 2015. (PPB’s quarterly 2014 Q4 folder does not exist for paragraph 133; PPB did not produce documents in its 2015 Q2 folder.)
SOP 42 concerns evaluating officers’ fitness to participate in specialized units after those officers’ use of force results in a finding of liability in a civil trial. The purpose of SOP 42 is consistent with Paragraph 133(2). Commendably, SOP 42 provides for a broad data set to evaluate officer fitness for participation in
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specialized units. However, except for the summary entry of the civil finding in EIS, the listed data in SOP 42 do not include an examination of the civil finding of liability, itself. Nor does SOP 42 refer to the trainer selection criteria discussed above in Paragraph 83.
In September 2014, i.e., after the Effective Date of the Settlement Agreement, a civil jury reached a verdict in favor of a plaintiff on an excessive force claim stemming from a June 18, 2011 incident (PPB Case No. 11-050814). Shortly after the verdict, in response to our inquiry, the City reported having entered the civil finding in PPB’s EIS as required by Paragraph 133.
The Multnomah County Prosecuting Attorney referred the same allegation to the PPB for investigation in June or July 2011. PBB initiated an administrative investigation on July 22, 2011 (2011-C-0237). We requested and the City provided what purports to be the entire administrative investigation file. This was PPB’s original investigative file, not the trial record.
In ongoing discussions with the City, the City ultimately has asked the Department of Justice to opine whether the documents provided demonstrate PPB has, in fact, previously conducted an administrative investigation of 2011-C-0237. When the City has conducted an administrative investigation and there has been a subsequent civil verdict on the same incident, PPB must apply Paragraph 133(4) or (5). When there has been no administrative investigation and there has been a subsequent civil verdict on the same incident, PPB must apply Paragraph 133(3).
Though the Department of Justice did not seek specific enforcement of the Settlement Agreement during the pendency of the City’s appeal, with the July 30, 2015 resolution of the appeal, we now request that the City specifically perform its obligations as required by Paragraph 133.
To that end, based on our review of the entire investigative file that the City provided to us, the City may appropriately address PPB Case No. 11-050814 within Paragraph 133(4) or (5). PSD did conduct an administrative investigation in 2011 marking administrative findings of “exonerated” for all three officers, thus removing the allegation from 133(3). However, if PPB determines that this allegation fits 133(5), i.e., no evidence from trial justifies reopening, it must reconcile the paradox between the jury’s finding excessive force by a preponderance of evidence and PSD’s summary declination and exoneration shown in the investigative file.
Our review of the PPB investigative file indicates some issues PPB should address in conducting its Paragraph 133 analysis. The investigative file included three apparently credible non-officer witness interviews, including the PPB’s longtime volunteer chaplain, but did not include an interview from the complainant or Garrity notices and interviews of the three subject officers. The investigative file included the ECW data download from Taser International showing five separate five-second uses of the ECW. Notably, in the force debrief section, one of the involved officers stated that she was unaware that she could attempt to handcuff a subject during an ECW use. The investigative file did not include pictures of the ECW application sites. The Force Data Collection Report did not mark “other”
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under subject injuries for ECW marks described on the ECW report. This incident occurred before PPB implemented Directive 940 – After Action Review; accordingly, there is not a separate force investigation on which to rely.
PPB reports that it has applied SOP 42 to the three involved officers and PSD has submitted its report for review by an assistant chief. See PPB 2015 Q1 compliance report, Item 133.
Technical PPB should revise SOP 42 to include specific consideration of the liability finding Assistance itself. Further, PPB should ensure that SOP 42 is consistent with Paragraph 83 and
with PPB’s revised accountability directives.
PPB should furnish us records demonstrating that PPB has applied its SOP 42 to the three officers involved in PPB Case No. 11-050814.
PPB must candidly and thoroughly engage in the required Paragraph 133(4) or (5) analysis. This should include PPB’s indicia and reasoning for selecting between subsections (4) and (5). We will audit the resulting information.

D. CRC Appeals
134. The City shall expand the membership of the CRC to 11 members, representative of the many and diverse communities in Portland, who are neutral, unbiased, and capable of making objective decisions. The quorum of CRC members necessary to act may remain at its existing level.

Status

Substantial compliance – ongoing obligation

Analysis

City Code 3.21.080 Citizen Review Committee, as amended effective February 7, 2014, expands CRC membership to eleven while leaving CRC’s quorum unchanged as required by Paragraph 134. City Code 3.21.080(A). The code includes the required “neutral, unbiased, and capable of making objective decisions” criteria. City Code 3.21.080(A)(3).

Technical We thank CRC volunteers for their continued involvement. Going forward, we will Assistance continue to assess the efficacy of the CRC system.

135. The City and PPB agree that the CRC may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.
136. In its review process for purposes of the appeal, the CRC may make one request for additional investigation or information to the investigating entity, i.e. PSD or IPR at any point during its review. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the CRC explaining why additional time is needed. The request for additional investigation or information may contain multiple points of inquiry, but no follow-up requests will be permitted. The additional request be voted on by a quorum, the members voting
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must have read the Case File in order to vote, and any request with multiple points of inquiry must be prioritized.

Status

Partial compliance – ongoing obligation

Analysis

The City Auditor’s office has posted a series of policies and rules for operation of IPR and CRC. See http://www.portlandonline.com/auditor/index.cfm?c=27455. Generally, the City needs to update these to ensure that they comply with the Settlement Agreement. CRC’s appeals process, for example, is set forth in PSF5.03 – Citizen Review Committee - Independent Police Review Division - Appeals Procedures, available at http://www.portlandonline.com/auditor/index.cfm?c=27455&a=9030, allows a majority to vote to challenge PPB’s findings in any undefined way. That rule does not tell CRC that to reach such a decision it “may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.” Paragraph 135. Currently posted CRC rules address disagreement with PPB findings; the rules do not contemplate CRC appeals of IPR’s newly wholly independent administrative investigations.

Technical In considering updates to IPR and CRC rules, the City should consider consulting Assistance with these groups when globally reviewing the accountability systems as discussed
in our May 14, 2015 meeting.
In revising CRC’s rules, the City should ensure their conformance with these and other provisions of the Settlement Agreement, particularly timeliness.

E. Discipline
137. Within 60 days of the Effective Date, PPB and the City shall develop and implement a discipline guide to ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors and to provide discipline that is reasonably predictable and consistent.

Status

Partial compliance – ongoing obligation

Analysis

Current Directive 338.00 is available at https://www.portlandoregon.gov/police/article/525761. (PPB’s 2014 Q4 folder for paragraph 137 contains an internet shortcut that appears intended to link to PPB Directive 338.00 – Discipline Guide, but does not lead to this policy; the shortcut instead directs the user to http://www.police.city/open.cfm?id=1219923647. PPB’s 2015 Q1 and Q2 data sets each contain an empty folder for paragraph 137.) On May 8, 2015, we provided PPB with written comments on Directive 338. On May 14, 2015, we and COCL met with PPB and IPR officials to discuss these policies and the requirements of the Settlement Agreement. Our expert policing consultant and COCL’s expert attended by telephone. We asked PPB and IPR to convene a work group to undertake the tasks required by the Settlement Agreement in order to revise the policies in a compliant fashion. PPB still has this and other directives

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under consideration.
A discipline guide is designed to give fair notice to all accused and their accusers of guidance for the potential scope of disciplinary actions that may result from sustained findings. Officers should know that they are treated fairly, not subject to arbitrary discipline or excuse based upon their relationships with superiors.
Even if the other aspects of the accountability system were fully functioning as intended, PPB recently took an action which undercuts the purposes of the discipline guide: PPB revoked imposed discipline for a sustained finding without any new evidence affecting the validity of that finding. In June 2014, i.e., before the Effective Date but after the City publicly asserted it was already implementing the Settlement Agreement, the City settled a notice of tort claim filed by a PPB member. The settlement included erasing two disciplinary actions based on 2010 findings. By erasing these findings, PPB leadership validated the officer’s conduct that PPB had previously declared outside of policy.
After non-career-ending discipline, officers have room to reconcile, earn advancement, and win commendation. However, nowhere in Directive 338.00 or the disciplinary matrix developed in connection with that directive is there a means to erase past sustained findings from an officer’s record. Nor should there be.
The effectiveness of PPB’s implementation of the discipline guide necessarily depends on an accountability system that functions as required by the Settlement Agreement. Accordingly, to come into compliance with Paragraph 137, PPB must substantially comply with the accountability provisions of the Settlement Agreement as well.
Technical PPB should finalize it directive and matrix as part of its global consideration of Assistance officer accountability.
PPB should memorialize that, absent new evidence, it will not expunge past accountability findings and discipline.
We cannot fairly say the PPB has implemented a discipline guide, in the absence of an accountability system that functions as required by the Settlement Agreement. Accordingly, to come into compliance with Paragraph 137, PPB must substantially comply with the accountability provisions of the Settlement Agreement.
F. Communication with Complainant and Transparency
138. Within 180 days of the Effective Date, the City shall enhance its existing website to ensure that a complainant can file and track his or her own complaint of officer misconduct.
139. Within 120 days of the Effective Date, the City shall review its protocols to ensure that the City shares with complainants requested documentation about his or her own complaint to the extent permitted by law.
140. The City shall ensure that IPR provides each complainant a tracking number upon receipt of the complaint, informs each complainant of the complaint classification, assignment (precinct or IA) and outcome of the complaint (sustained, unproven, etc.) in writing (whether mail,
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email/text, or fax), including information regarding whether the City took any corrective action. The City Attorney’s Office shall determine whether disclosures regarding corrective action are required on a case-by-case basis consistent with Oregon’s Public Records Law.

Status

Partial compliance – ongoing obligation

Analysis IPR has added to its internet page a form requesting status of a complaint. See http://www.portlandonline.com/auditor/index.cfm?c=64452.

Technical Assistance

Whether or not the City has complied with these obligations will require an audit of administrative investigation files, including notice letters, resolution letters, and records that show case-by-case consideration if disclosure of corrective actions. In the coming year we will assess a sample of such records.

IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD
141-145. COAB duties and selection

Status

Not measured

Analysis

The City Council selected the COCL on November 12, 2014.
The Collaborative Agreement with the AMAC modified the selection process for the at-large community members of the COAB. The selection committee announced COAB members and at-large alternates on January 22, 2015. Since that time there have been several resignations and alternates appointed.
Furthermore, Paragraph 144 provides that “[f]ollowing the removal of a COAB member, an alternative shall be selected from the same pool of applicants as the removed COAB member.” Counsel for United States and the City in consultation with the COCL and Counsel for the AMAC have conferred and determined that while this provision is sufficiently clear for alternates to be selected for the PCOD/HRC, HRC, City Commissioner, and PPB Advisory appointments, the process needs to be further clarified for the selection and appointment from the pool of applicants for alternates for the five community at-large positions. We have requested that counsel for the City meet to confer with us on such a proposal. Such a meeting has not yet occurred, but should occur before the October COAB meeting.

146. To ensure constitutional policing, to closely interact with the community to resolve neighborhood problems, and to increase community confidence, PPB shall work with City resources knowledgeable about public outreach processes to develop and finalize a CEO Plan:
a. Within 90 days of the COAB selection, the City, in consultation with COAB, will conduct a reliable, comprehensive, and representative survey of members of the Portland community, including civilians and PPB officers, regarding their experiences with and
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perceptions of PPB’s prior community outreach efforts and accountability efforts and where those efforts could be improved, to inform the development and implementation of the CEO Plan;
b. COAB, in conjunction with PPB, shall consult with community members (not only through PPB Advisory Councils and Roundtables) and hold at least two (2) public hearings, completed within 90 days of the COAB selection, in addition to the representative survey described above, to gather public input on PPB’s outreach efforts; the hearings shall be held in locations to ensure that PPB receives input from all parts of the Portland community;
c. COAB shall review PPB’s prior community outreach efforts to contribute to the development of a new CEO Plan;
d. COAB shall solicit and consider input from the Human Rights Commission’s Community Police Relations Committee (“CPRC”), including its work to implement the 2009 PPB “Plan to Address Racial Profiling”;
e. Within 60 days of the anticipated due date for survey results, the COAB and PPB, in consultation with the appropriate City resources knowledgeable about public outreach and survey analysis, shall review and analyze the results of the survey and other public comments discussed above;
f. The CEO Plan shall include strategies to ensure greater public outreach and engagement, including opportunities for outreach to a broad cross-section of community members. The Plan shall also identify gaps in available resources to achieve its goals.
g. The COAB may also provide information to the PPB on other areas related to community engagement and outreach to contribute to the development of the CEO Plan, including:
i. integration of community and problem-oriented policing principles into PPB’s management, policies and procedures;
ii. recruitment, selection, training, promotion, and personnel evaluations;
iii. tactics and deployment of resources; and
iv. systems of accountability.
g(2). COAB shall submit its recommended CEO Plan to the Chief, in writing, within 90 days of the COAB’s completion of survey analysis.
h. The Chief’s Office, in consultation with the five PPB advisory members of the COAB shall utilize the COAB’s recommendations in developing and implementing the CEO Plan. The Chief’s Office shall present the final proposed CEO (with implementation timeline) to the COAB for a vote of approval within 240 days of the effective date of this Agreement.
147. PPB shall continue to collect appropriate demographic data for each precinct so that the Precinct Commander, together with the COAB, may develop outreach and policing programs specifically tailored to the residents of the precincts.
148. PPB shall continue to require that officers document appropriate demographic data regarding the subjects of police encounters, including the race, age, sex and perceived mental
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health status of the subject, and provide such information to the CPRC to contribute to their analysis of community concerns regarding discriminatory policing. In consultation with the COAB and CPRC, PPB shall consider enhancements to its data collection efforts, and report on its efforts to enhance data collection to the DOJ by no later than December 31, 2013, and quarterly thereafter.
149. The COAB, COCL, PPB, and DOJ will jointly develop metrics to evaluate community engagement and outreach.

Status

Compliance rating pending–further documentation needed

Analysis

PPB, along with other City components, share obligations under the provisions in paragraphs 146-149 with COCL and/or COAB. Unsurprisingly, then, while PPB began to implement many portions of the Settlement Agreement before the effective date, PPB could not independently bring these to fruition while awaiting the appointment of COCL and selection of the COAB.
While waiting, PPB took some steps on its own. PPB established its own CEO Plan steering committee and compiled lists of existing community engagement opportunities. See 2014 Q4 PPB data set, folder 146. On May 15, 2015, PPB issued to the Department of Justice a memo as PPB’s Data Collection Enhancement Report. See PPB 2015 Q1 data set, folder 48. This included discussion of PPB’s new record management system, EIS, and ECIT template, all discussed above. Ibid. PPB also has a racial profiling policy that prohibits bias and profiling based on a number of personal characteristics. See Directive 344.05-Bias-Based Policing/Racial Profiling Prohibited, available at https://www.portlandoregon.gov/police/article/525763.
PPB posted stop data on the PPB website. See Stop Data Collection, First Quarter 2015, available at https://www.portlandoregon.gov/police/article/529596.
Notwithstanding these independent efforts by PPB, these provisions of the Settlement Agreement relate to long-running community concerns. The importance of these issues requires collaborative work from PPB and COCL/COAB to build a bilateral relationship between PPB and the community.
Since the appointment of the COCL and COAB members, the COAB, the City and PPB have attempted to meet some of the requirements of these paragraphs. Subparagraph (b) requires that “COAB, in conjunction with PPB, … hold at least two (2) public hearings,… held in locations to ensure that PPB receives input from all parts of the Portland community” in order “to gather public input on PPB’s outreach efforts.” The COAB and PPB held a hearing regarding PPB’s outreach efforts on April 2 at the Charles Jordan Community Center. PPB reports that the meeting did not achieve its goals, and that a different strategy and format is in order for the next public hearing. This appears to be a useful review to undertake, as the COAB and PPB received considerable feedback on the sequence of events and allocation of time to each event at the hearing.
Steps have also been taken towards conducting the survey called for in subparagraph (a).

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As of September 10, 2015, PPB had not yet reported having engaged in the discussions surrounding demographic data. PPB tracks demographic data under its current rubric, namely perceived ethnicity, gender, age, and mental health status. See https://www.portlandoregon.gov/police/article/529596, Appendix A. However, COAB members’ comments in response to the COCL’s quarterly reports indicate their desire to modify the classification of individuals with whom PPB interacts.
COCL has now developed a Community Engagement & Outreach Plan Development Timeline. There are many tasks and a lengthy timeline designed to result in the CEO Plan. Going forward, we will monitor this process, and participate where required by Paragraph 149.
Furthermore, the City must ensure that other City-supported bodies, such as the CPRC, receive adequate support and guidance to fulfill their requirements under this Agreement. As you may recall, this body was specifically reinserted back into the draft Settlement Agreement after the initial presentation to City Council and public comment. However, based on our observation and comment at the CPRC’s July meeting, we are concerned that CPRC does not currently receive adequate guidance and support to fulfill its obligations under the Settlement Agreement.
Technical COAB and PPB should include the need for language access services in the Assistance tracking of data to tailor outreach and community policing.
PPB should actively participate with COCL and COAB as they proceed through the CEO Plan Development Timeline.
We recommend that PPB and the COAB assess the feedback it did receive concerning community outreach at the public hearing.
The City should engage the CPRC to ensure that they have the support and guidance necessary to perform its functions, including implementing the plan to address racial profiling.

150. Annually, PPB shall issue a publicly available PPB Annual Report, which shall include a summary of its problem-solving and community policing activities. A draft of the Annual Report shall be reviewed by the COAB before the report is finalized and released to the public. Once released, PPB shall hold at least one meeting in each precinct area and at a City Council meeting, annually, to present its Annual Report and to educate the community about its efforts in community policing in regard to the use of force, and about PPB’s policies and laws governing pedestrian stops, stops and detentions, and biased-free policing, including a civilian’s responsibilities and freedoms in such encounters.

Status

Partial compliance – ongoing obligation

Analysis

PPB has not produced an up-to-date, compliant report for Paragraph 150. PPB’s most recent report covers 2013. See 2013 Statistical Report, available at https://www.portlandoregon.gov/police/29863. PPB maintains an internet page for DOJ-related documents, including quarterly and annual reports. See https://www.portlandoregon.gov/police/62642. PPB does not present any more
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current annual report on this page. Ibid.
PPB originally anticipated its annual report in June 2015, see PPB 2015 Q1 compliance report, Item 150, but appears to have modified the anticipated date to January 2016, see PPB 2015 Q2 compliance report, Item 150. PPB did not provide an explanation for the change.
PPB’s compliance officers presented COAB a report on PPB’s implementation of the Settlement Agreement; however, this does not take the place of a comprehensive PPB annual report.
Technical PPB must complete the report required by Paragraph 150, submit the report to Assistance COAB, and publically present the finalized report.
Note that compliance with this requirement will require coordination with the COAB.

151. The COAB may make recommendations approved by a majority of its membership regarding implementation of the terms of this Agreement.

Status

Not measured

152. The COAB shall meet at least twice per year with the Chief, the Police Commissioner, PPB Precinct Commanders, PPB Neighborhood Response Teams, and a representative of the Office of Neighborhood Involvement Crime Prevention to assess and solicit comment on PPB’s activities in regards to community outreach, engagement, and problem-solving policing. The COAB shall also provide the opportunity for public comment at each of its meetings to keep open lines of communication with the public-at large.

Status

Partial compliance – ongoing obligation

Analysis

The Mayor and Chief and numerous other PPB members have attended COAB meetings. However, COAB has not yet hosted the meeting required in Paragraph 152. COAB began meeting on February 9, 2015. More than six months have passed. A Paragraph 152 meeting has not occurred. PPB states that it is planning its first such meeting for this fall. PPB 2015 Q2 compliance report, Item 152.
See Paragraphs 146-49 discussion, above (addressing PPB’s efforts toward establishment of a CEO Plan).

Technical The Police Commissioner and PPB should include plans for twice yearly Assistance productive exchanges with the COAB, as required by Paragraph 152, as part of
PPB’s engagement on the CEO Plan Development Timeline.

153. A representative of the Oregon U.S. Attorney’s Office shall be invited to attend all COAB meetings.
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Status

Substantial compliance – ongoing obligation

154. COAB shall meet as needed to accomplish their objectives as set forth in this Agreement. All COAB meetings shall be open to the public. In addition, COAB shall attend quarterly meetings with the COCL as provided in Par 163. To the extent that COAB meetings are subject to the Oregon Public Meetings Law, or similar regulatory or statutory requirements, the City shall be responsible to give advice necessary to the COCL to ensure compliance with those laws and agrees to represent COCL in any challenges regarding compliance with those laws.
155. The City shall provide COAB members with appropriate training necessary to comply with requirements of City and State law.

Status

Partial compliance – ongoing obligation

Analysis

COAB has met regularly since its establishment.
COAB’s formation and establishment was challenging. COAB is a new type of entity assessing implementation of a Settlement Agreement. As such, COAB had no pattern to follow. COAB needed to develop its bylaws, subcommittees, and processes.
The City provided COAB advice on compliance with laws governing open public records and open public meetings. The City provided COAB legal advice concerning ethics for public officials and questions of prayer in public meetings. The City offered civilian police academy and ride-alongs to COAB members. IPR provided training on the accountability systems.
Separately, the United States provided COAB a “Settlement Agreement 101” training and memoranda on the roles and limitations of the COAB.
COCL maintains a COAB/COCL website providing abilities to store training material and memoranda, post documents, host online fora, and publicize COAB meeting schedules and agenda. See http://www.cocl-coab.org/.

Technical As new members join COAB, the City will need to ensure those members receive Assistance timely training.
COAB could continue to benefit from ongoing training as it addresses specialized subject matter, e.g., crisis intervention and training.

X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT
156. PPB shall implement immediately all provisions of this Agreement which involve the continuation of current policies, procedures, and practices specific to force, training, communitybased mental health services, crisis intervention, employee information system, officer accountability, and community engagement. Except where otherwise specifically indicated, PPB shall implement all other provisions of this Agreement no later than within 180 days of the Effective Date.
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Status

Partial compliance – ongoing obligation

Analysis

The Settlement Agreement’s Effective Date is August 29, 2014. Accordingly, the 180-day deadline passed on February 25, 2015. The City began to implement some portions of the Settlement Agreement even before the Effective Date. As described in this Report, some efforts have had laudable results, but not all efforts have been fully compliant. For the majority of Settlement Agreement provisions, PPB will need to finalize and obtain U.S. approval on a pertinent PPB policy, train staff on the policy, and then demonstrate through its audits that staff consistently follow the policy.

Technical Assistance

As described in the United States’ August 10, 2015 policy review letter, with the resolution of the appeal on July 30, 2015, we look forward to the parties’ rededication of resources to continue to develop compliance monitoring, and a more efficient review of policies that includes COCL and COAB input.

157. With regard to any provision that provides for DOJ’s review and approval, including review of all policies that must be revised, approval will be granted in a timely fashion provided that the PPB’s action reasonably satisfies the requirements and standards set forth in the relevant provision(s).

Status

Not measured

158. All PPB audits and reports related to the implementation of this Agreement shall be made publicly available via website and at PPB, IPR, City Hall, and other public locations. Audits and reports shall be posted on PPB’s website.
159. PPB shall collect and maintain all data and records necessary to facilitate and ensure transparency and wide public access to information related to PPB decision making and activities, and compliance with this Agreement, in accordance with the Oregon Public Records Law.

Status

Partial compliance – ongoing obligation

Analysis

See Paragraph 150 discussion, above. PPB has posted its quarterly self-audits on its website. See https://www.portlandoregon.gov/police/62642.
COCL/COAB have posted their reports on their shared website. See http://www.cocl-coab.org/.
IPR’s latest available report covers the fourth quarter of 2014. See http://www.portlandonline.com/auditor/index.cfm?c=40870&a=525357.

Technical The City’s reports are out of date. The City is, in part, hindered by the difficulties Assistance with the RegJIN software system described above. Even so, PPB and IPR should

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bring their public reporting up to date to the extent that data are available to do so.

A. Compliance Officer/Community Liaison 160-164. COCL Selection and Duties

Status

Not measured

Analysis The City Council selected COCL November 12, 2014. COCL has now published a quarterly report schedule to which the parties agreed.

B. PPB Compliance Coordinator
165. PPB will hire or retain an employee familiar with the operations of PPB for the duration of this Agreement, to serve as a PPB Compliance Coordinator. The Compliance Coordinator will serve as a liaison between PPB and both the COCL and DOJ and will assist with PPB’s compliance with this Agreement. At a minimum, the Compliance Coordinator will:
a. Coordinate PPB’s compliance and implementation activities;
b. Facilitate the provision of data, documents, materials, and access to PPB personnel to the COCL and DOJ, as needed;
c. Ensure that all documents and records are maintained as provided in this Agreement;
d. Assist in assigning compliance tasks to PPB personnel, as directed by the Chief of Police or the Chief’s designee; and
e. Take primary responsibility for collecting the information the COCL requires to carry out his/her assigned duties.

Status

Partial compliance – ongoing obligation

Analysis

PPB appointed a Captain as compliance coordinator who, along with a civilian experienced in mental health services, has ably coordinated compliance reporting to the United States. These individuals and their staff have also provided data and communicated openly when called upon. We thank all of these staff for their efforts.

Technical This compliance report is intended to serve as a roadmap to assist PPB in furthering Assistance compliance.
In the coming year, with the resolution of the appeal, we will seek to finalize policies with the input of COCL and COAB. We will request samples of Force Data Collection Reports and After Action Reviews on an ongoing production basis. We will audit administrative investigations. These efforts will place demands on PPB’s compliance officers.

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C. Access to People and Documents
166. The COCL shall have full and direct access to all PPB and City staff, employees, facilities, and documents that the COCL reasonably deems necessary to carry out his/her duties. If a document requested by the COCL is a privileged attorney-client communication, the COCL shall not disclose the document in a manner that destroys that privilege without the approval of the City Attorney. The COCL shall cooperate with PPB and the City to access people, facilities, and documents in a reasonable manner that minimizes, to the extent possible, interference with daily operations. In order to report on PPB’s implementation of this Agreement, the COCL shall regularly conduct reviews to ensure that PPB implements and continues to implement all measures required by this Agreement. The COCL may conduct on-site reviews without prior notice to PPB or the City.
167. For the purpose of monitoring this Agreement, DOJ and its consultative experts and agents shall have full and direct access to all PPB and City staff, employees, facilities, and documents, that DOJ reasonably deems necessary to carry out the enforcement and monitoring provisions of this Agreement to the extent permitted by law. DOJ and its consultative experts and agents shall cooperate with PPB and the City to access involved personnel, facilities, and documents in a reasonable manner that minimizes interference with daily operations; however, DOJ may conduct on-site reviews without prior notice to PPB or the City. DOJ shall provide PPB or the City with reasonable notice of a request for copies of documents. Upon such request, PPB or the City shall provide DOJ with copies (electronic, where readily available) of any documents that DOJ is entitled to access under this Agreement, except any documents protected by the attorneyclient privilege. Should PPB decline to provide DOJ with access to a document based on attorney-client privilege, PPB promptly shall provide DOJ with a log describing the document, including its author, recipients, date of production, and general topic.
168. All non-public information provided to the COCL or DOJ by PPB or the City shall be maintained in a confidential manner. Nothing in this Agreement requires the City to disclose documents protected from disclosure by the Oregon Public Records Law to third parties.

Status

Not measured

D. Review of Policies and Investigations
169. Within 180 days of the Effective Date, PPB shall revise and/or develop its policies, procedures, protocols, training curricula, and practices to ensure that they are consistent with, incorporate, address, and implement all provisions of this Agreement specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement. PPB shall revise and/or develop as necessary other written documents such as handbooks, manuals, and forms, to effectuate the provisions of this Agreement. PPB shall send new or revised policies, procedures, protocols, and training curricula regarding use of force, interactions with persons in mental health crisis and systems of accountability to DOJ as they are promulgated, with a copy to the COCL. DOJ and the COCL will provide comments within 45 days and will not unreasonably withhold recommendations about policies, procedures, protocols, and training curricula. The COCL shall seek the timely input of the relevant members of the Training Division and patrol officers, as well members of the community. If the City disagrees with DOJ’s comments, the City shall, within 14 days of
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being informed of the DOJ’s comments, inform the Parties in writing of the disagreement. Within 14 days thereafter, the Parties shall meet and confer on the disagreement at a mutually agreeable time. Upon approval by the Parties, policies, procedures, training curricula, and manuals shall be implemented within 30 days of agreement or the Court’s decision. PPB shall provide initial and in-service training to all officers and supervisors with respect to newly implemented or revised policies and procedures. PPB shall document employee review of and training in new or revised policies and procedures.
170. The Chief shall post on PPB’s website final drafts of all new or revised policies that are proposed specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement, to allow the public an opportunity for notice and comment, prior to finalizing such policies.
171. The Chief’s Office shall coordinate a review of each policy or procedure required by this Agreement 180 days after such policy or procedure is implemented, and annually thereafter (on a regularly published schedule), to ensure that such policy or procedure provides effective direction to PPB personnel and remains consistent with the purpose and requirements of this Agreement.

Status

Partial compliance – ongoing obligation

Comment Please refer to our August 10, 2015 policy review letter.

172. PPB shall apply policies uniformly and hold officers accountable for complying with PPB policy and procedure.

Status

Partial compliance – ongoing obligation

Analysis See Accountability section, above.

173. In addition to compliance reviews, the COCL shall lead semi-annual qualitative and quantitative outcome assessments to measure whether the City and PPB’s implementation of this Agreement has created: (1) capable systems and resources for responding to persons in mental health crisis; (2) competent accountability and oversight systems; (3) effective training for police officers that increases the knowledge, skills and abilities necessary for effective and successful delivery of service to persons in mental health crisis; (4) proper management of the use of force to meet constitutional standards; and (5) robust systems of community engagement. These outcome assessments shall be informed by the following:
a. Use of Force Data:
i. the number of police interactions where force was used on individuals with actual or perceived mental illness, including the type of force used; the reason for the interaction, i.e., suspected criminal conduct or a well-being check; the threat to public safety, including whether the person was armed and if so, with what; a description of the type of resistance offered, if any; and a description of any attempts at strategic disengagement;
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ii. the rate of force used per arrest by PPB; force implement used; geographic area (i.e., street address, neighborhood, or police precinct or district); type of arrest; and demographic category;
iii. the rate of force complaints that are sustained, overall and by force type; source of complaint (internal or external); type of arrest; type of force complained of; demographic category;
iv. uses of force that were found to violate policy overall and by force type; type of arrest; demographic category; force implement used; and number of officers involved;
v. the number and rate of use of force administrative investigations/reviews in which each finding is supported by a preponderance of the evidence;
vi. the number of officers who frequently or repeatedly use force, or have more than one instance of force found to violate policy;
vii. the rate at which ECW usage decreases or increases compared to the use of force overall and by weapon; and
viii. the rate at which officer and subject injuries decrease or increase overall and by severity of injury.
b. Mental health interaction data on:
i. MCPT dispositions;
ii. the flow of people in mental health crisis through PPB, the County jail, emergency receiving facilities, and community agencies;
iii. officer and agency staff satisfaction with the transfer process;
iv. the rate of repeat calls for service involving individuals in mental health crisis;
v. the use of the mental health commitment law; and
vi. the availability of appropriate treatment options;
c. Training data, including:
i. officer evaluation of adequacy of training; and
ii. the Training Division’s assessment of incidents involving officer or civilian injury.
d. Performance data, including:
i. uses of force found to be unreasonable, complaints sustained and not sustained, and other performance related indicators for supervisors/commanders promoted pursuant to the requirements of this Agreement, and for the units these supervisors/commanders command; and
ii. initial identification of officer violations and performance problems by supervisors, and effectiveness of supervisory response.
e. Accountability data, including:
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i. the number of complaints (broken out by type of complaint), with a qualitative assessment of whether any increase or decrease appears related to access to the complaint process;
ii. rate of sustained, not sustained, exonerated complaints;
iii. the number and rate of complaints in which the finding for each allegation is supported by a preponderance of the evidence;
iv. the number of officers who are subjects of repeated complaints, or have repeated instances of sustained complaints; and
v. the number, nature, and settlement amount of civil suits against PPB officers regardless of whether the City is a defendant in the litigation.
174. In conducting these outcome assessments, the COCL may use any relevant data collected and maintained by PPB, provided that it has determined, and the Parties agree, that this data is reasonably reliable and complete. Additionally, the COCL shall solicit input from community groups or initiatives that have relevant experience conducting statistical analyses. The COCL will contribute to and review the Annual Community Survey.

Status

Compliance rating pending– more information needed

Comment COCL has not completed such a specific outcomes assessment, yet. COCL must do so.

175. Two years after the Effective Date, DOJ shall conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by the Agreement have been achieved. DOJ will further examine whether any modifications to the Agreement are necessary in light of changed circumstances or unanticipated impact (or lack of impact) of the Agreement’s requirements. This assessment also shall address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating full and effective compliance. Based upon this comprehensive assessment, DOJ may recommend modifications to the Agreement that are necessary to achieve and sustain intended outcomes. Where the City agrees with DOJ’s recommendations, the Parties shall stipulate to modify the Agreement accordingly. Nothing in this assessment shall empower DOJ to unilaterally modify the terms of this Agreement.

Status

Not measured

Comment

Our two-year comprehensive asssement will be due by August 29, 2016, since the effective date was August 29, 2014. As noted in our cover letter, this compliance assessment report provides the available compliance status through August 28, 2015.

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E. City Reports and Records
176. Beginning with the COCL’s first quarterly report, as set forth in paragraph [162]166 of this Agreement, PPB shall prepare a status report no later than 45 days before the COCL’s quarterly report is due. The PPB Compliance Coordinator shall lead the effort in preparing this status report and shall provide copies to the COCL, DOJ, and the public. PPB’s report shall delineate the steps taken by PPB during the reporting period to comply with each provision of this Agreement.
177. PPB shall maintain all records, as applicable, necessary to document their compliance with the terms of this Agreement and all documents expressly required by this Agreement.

Status

Partial compliance – ongoing obligation

Analysis

PPB has produced very helpful quarterly reports and data sets. However, as outlined above, we have questioned the reliability of some of the conclusions reached in the reports. See, e.g., Paragraphs 74, 125 discussion, above.

F. Enforcement 178-90. Court entry, good faith, notice, mediation, motion, defense

Status

Not measured

The parties moved jointly to enter the Settlement Agreement. The United States has not instituted an enforcement action.

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 Case 3:12-cv-02265-SI Document 99 Filed 07/30/15 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF PORTLAND, Defendant.

Case No. 3: 12-cv-02265-SI
AMENDED ORDER ENTERING SETTLE1\1ENT AGREE1\1ENT, CONDITIONALLY DISMISSING LITIGATION, AND SETTING FIRST ANNUAL STATUS CONFERENCE

Billy J. Williams, Acting United States Attorney; Adrian L. Brown, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Vanita Gupta, Principal Deputy Assistant Attorney General; Judy Preston, Acting Chief; Laura Coon, Special Counsel; R. Jonas Geissler, Senior Trial Attorney, Brian Buehler, Trial Attorney, Special Litigation Section; David W. Knight, Trial Attorney, Disability Rights Section, Civil Rights Division, UNITED STATES DEPARTivffiNT OF JUSTICE, 500 Pennsylvania Avenue, NW, Washington, D.C. 20530. Of Attorneys for Plaintiff.
Tracy Reeve, City Attorney; David Woboril, Senior Deputy City Attorney; Ellen Osoinach, Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 S.W. Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant.
Anil S. Karia, TEDESCO LAW GROUP, 3021 N.E. Broadway, Portland, OR 97232. Of Attorneys for Intervenor-Defendant Portland Police Association.
J. Ashlee Albies, CREIGHTON & ROSE, P.C., 500 Yamhill Plaza Building, 815 S.W. Second Avenue, Portland, OR 97204; Shauna M. Curphey, CURPHEY & BADGER, P.A., 520 S.W. Sixth Avenue, Suite 1040, Portland, OR 97204. OfAttorneys for Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform.

Page 1 - ORDER ENTERING SETTLEMENT AGREEMENT

Case 3:12-cv-02265-SI Document 99 Filed 07/30/15 Page 2 of 6
Michael H. Simon, District Judge. The United States of America ("Plaintiff" or ''United States") brought this lawsuit
against the City of Portland ("Defendant" or "City of Portland") under 42 U.S.C. § 14141. The United States and the City of Portland have entered into a proposed Settlement Agreement ("Settlement Agreement") and have jointly moved the Court to accept the Settlement Agreement and enter the Settlement Agreement as an Order of the Court. Both the United States and the City of Portland agree that entering into the Settlement Agreement, rather than engaging in contested litigation, is the best way to resolve the claims brought by the United States in this matter, which concern policing practices in the City of Portland primarily with respect to persons with actual or perceived mental illness. Both the United States and the City of Portland further agree that it will likely take several years, possibly as many as five years, for the City of Portland substantially to comply with all of the provisions of the Settlement Agreement. In addition, both the United States and the City of Portland jointly ask the Court to retain jurisdiction over this action for all purposes until the City of Portland substantially has complied with all provisions of the Settlement Agreement and maintained substantial compliance with all provisions for one year.
At the Court's request, the United States, the City of Portland, IntervenorDefendant Portland Police Association ("PPA"), and Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform ("AMA Coalition") engaged in mediation. The mediation produced two separate agreements: a Memorandum of Agreement ("MOA'') between the United States, the City of Portland, and the PPA; and a
Page 2 - ORDER ENTERING SETTLEMENT AGREEMENT

Case 3:12-cv-02265-SI Document 99 Filed 07/30/15 Page 3 of 6
Collaborative Agreement ("CA") between the United States, the City of Portland, and the
AMA Coalition.
The question before the Court is whether the Settlement Agreement, as a whole, is
fair, adequate, and reasonable as a means of resolving the claims raised in the Complaint.
To assist the Court in answering that question, the Court held a Fairness Hearing on
February 18 and 19, 20i4, and received written submissions and oral testimony from the
United States, the City of Portland, Intervenor-Defendant PPA, Enhanced Arnicus Curiae
AMA Coalition (collectively the "Parties"), and numerous members of the public,
pre-hearing, during the hearing, and post-hearing.
Following the Fairness Hearing, the Court directed several questions to the
Parties. One question asked by the Court was:
Question 12: A number of police departments provide officers with "on-officer recording systems" (also known as "body cameras," "body cams," or "cop cams"), which are small, pagersized cameras that clip onto an officer's uniform or glasses or are worn as a headset. These devices record audio and video of the officer's interactions with the public. Please explain whether requiring these devices would promote the objectives of the Agreement and, if so, why such a requirement was not included.
ECF No. 61, pp. 7-8. In response to this question, the United States stated:
The United States has not required that all PPB officers wear body cameras, but the Agreement does not prohibit the City from using body cameras. Currently, the City records many of its interactions through mobile video recorders, handheld radio transmissions, and GPS locations. It is our understanding that the City is willing to engage in use ofbody cameras to the extent that the technology is dependable and that its use is affordable. Ifthe City utilizes body cameras, the City must carefully govern their use to protect the rights of subjects and bystanders, e.g., providing Miranda warnings when appropriate and respecting reasonable expectations of privacy.
The determination to include or exclude body cameras from the Agreement is driven by a number of factors. While technology Page 3 - ORDER ENTERING SETTLEMENT AGREEMENT

Case 3:12-cv-02265-SI Document 99 Filed 07/30/15 Page 4 of 6
limitations, concerns about privacy rights, and appropriateness of remedy may weigh on such considerations, the ultimate compromise reached in this case is the product of negotiation and subject to settlement privilege. ECF No. 63, pp. 20-21 (emphasis added). The Court notes that as the technology in this area continues to improve and become more dependable and affordable, more city police departments in the United States are choosing to employ this technology in ways that protect both law enforcement officers and the public they serve. Notwithstanding these positive developments, the fact that the Settlement Agreement does not contain such a requirement does not justify the rejection of the Settlement Agreement. After reviewing the Settlement Agreement and considering the views of the Parties and all public comments received, the Court finds that the Settlement Agreement, as a whole, is fair, adequate, and reasonable to address the claims raised in the Complaint and, accordingly, hereby: ORDERS that the Settlement Agreement shall be and is entered as an Order of the Court; ORDERS that the Complaint is conditionally dismissed without prejudice pursuant to Rule 41 (a)(2) of the Federal Rules of Civil Procedure; ORDERS that the Court retain jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1345, to enforce any provision of the Settlement Agreement or the MOA upon request ofthe parties thereto; ORDERS that the City of Portland direct the Compliance Officer/Community Liaison ("COCL"), a position created under the Settlement Agreement, to provide copies to the Court in a timely fashion, or that the City of Portland do so itself, of all final quarterly reports, which are referenced in the Settlement Agreement;
I -q
Page ORDER ENTERING SETTLEMENT AGREEMENT

Case 3:12-cv-02265-SI Document 99 Filed 07/30/15 Page 5 of 6
ORDERS the United States, the City, a voting member ofthe Community Oversight Advisory Board (COAB) chosen by the COAB, a group created under the settlement agreement, and the COCL (by ordering the City of Portland to so direct the COCL and the COAB) to appear before the Court at annual status conferences to describe to the Court the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end and to respond to the Court's questions on these issues;
ORDERS the United States, the City, and the PPA to also appear before the Court at the annual status conferences to describe to the Court the status of the MOA;
ORDERS the United States, the City, and the AMA to also appear before the Court at the annual status conferences to describe to the Court the status of the CA and to respond to any questions by the Court;
ORDERS that the first post-approval status conference be held on Monday, September 14, 2015, at 9:00 a.m. in Courtroom 13B of the Mark 0. Hatfield United States Courthouse, in Portland, Oregon; and
ORDERS thatthis civil action be placed on the Court's inactive docket, other than for the annual status conferences referenced in this Order or otherwise as may be directed by the Court, and subject to recall to the active docket should the United States move to enforce the Settlement Agreement.
Ill Ill Ill Ill Ill Page 5 - ORDER ENTERING SETTLEMENT AGREEMENT

Case 3:12-cv-02265-SI Document 99 Filed 07/30/15 Page 6 of 6
The Parties' Joint Motion to Enter Settlement Agreement (ECF No. 3) and alternative Joint Motion to Enter Settlement Agreement (ECF No. 77) are GRANTED ill PART AND DENIED ill PART, as set forth in this Order.
IT IS SO ORDERED.
DATED this J-,V .J-:". day of \__, ,;I'1
\ Michael H. Simon United States District Judge
Submitted By: All Counsel of Record
J- ./:;I
Page ORDER ENTERmG SETTLEMENT AGREEMENT

 
 Case 3:12-cv-02265-SI Document 124 Filed 10/18/16 Page 1 of 6

BILLY J. WILLIAMS, OSB # 90136 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian.brown@usdoj.gov Assistant United States Attorney United States Attorney’s Office District of Oregon 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
STEVEN H. ROSENBAUM, Chief LAURA L. COON, Special Counsel R. JONAS GEISSLER jonas.geissler@usdoj.gov Senior Trial Attorney BRIAN D. BUEHLER brian.buehler@usdoj.gov SETH WAYNE seth.wayne@usdoj.gov Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 50 Pennsylvania Ave., NW Washington, D.C. 20530 Telephone: (202) 514-6255 Facsimile: (202) 514-4883
Attorneys for Plaintiff, United States

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. THE CITY OF PORTLAND,

Case No. 3:12-cv-02265-SI
PLAINTIFF’S NOTICE OF SECOND PERIODIC COMPLIANCE ASSESSMENT REPORT

Defendant.

Page 1 – Plaintiff’s Notice of Second Periodic Compliance Assessment Report United States v. City of Portland; Case No. 3:12-cv-02265-SI

Case 3:12-cv-02265-SI Document 124 Filed 10/18/16 Page 2 of 6

Plaintiff, the United States of America, provides notice to the Court of Attachment 1, our

Second Compliance Assessment Report (“Report”), for the period of August 29, 2015 - August

29, 2016. Additionally, the United States provides the following executive summary of our

Report:

• Use of Force:

o Policies and training on use of force require modifications to incorporate all aspects of the Settlement Agreement, including provisions on de-escalation, appropriate disengagement, and consideration of signs and symptoms of mental illness. Portland Police Bureau (“PPB”) needs to prioritize these revisions so that Officers and Supervisors clearly understand their roles and responsibilities in the field.

o As a result of policy deficiencies, PPB is not requiring that Members complete a Force Data Collection Report for every use of force. This deprives PPB of adequate oversight of these uses of force, and renders its statistics on use of force unreliable.

o A general assessment of Officers’ actual use of force would be premature, as reports have suffered from incomplete narratives, missing data, or both.

o The electronic control weapon (“ECW”) program requires urgent improvement. We found too many ECW deployments that violated policy; supervisors too often defended these policy violations; and Members candidly shared that ECWs often malfunction, preventing appropriate deployment and reliable accountability.

o The reports that PPB Officers and their supervisors do complete after a use of force are more rigorous than the Bureau has seen before, but PPB needs to resolve problematic reporting protocols.

o PPB and the Compliance Officer/Community Liaison (“COCL”) consulted on a methodology to audit uses of force, force investigations, and supervisors’ reviews of those investigations, as we requested in our 2015 Settlement Agreement Compliance Status Assessment Report. PPB’s auditing process will dramatically improve the Bureau’s capacity to manage force. The audit is in its infancy, however, and will require considerable refinement and renewed commitment.

• Training: The City places a high value on Officer training.

o PPB has made substantial progress in a training needs assessment, now informed by COCL’s technical assistance.

o Based on our observations, training should better integrate policy and competency-based evaluations.

o The City’s delay in procuring a training tracking software has hindered PPB.

o COCL and PPB must agree upon a training audit.

o Training will benefit from implementing recommendations from the Training Advisory Council.

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Case 3:12-cv-02265-SI Document 124 Filed 10/18/16 Page 3 of 6

• Community-Based Mental Health Services: The City has supported the local establishment of a Psychiatric Emergency Services facility, the Unity Center. Indeed, PPB deserves credit for the leadership it took to initiate conversations with the county, the state, and local hospitals to address this gap in services. Once operational, the Unity Center is intended to provide acute psychiatric services for persons in crisis, as well as link individuals to community based services prior to discharge. Unity will not, however, be a panacea; the State and County must still deliver adequate community-based services in an effort reduce contacts that persons with mental illness have with the police.
• Crisis Intervention: PPB’s dedication to its Behavioral Health Unit has borne fruit and praise from the Attorney General of the United States. Furthermore, PPB reports that jurisdictions throughout the country have inquired about how PPB has established this successful model, which includes the Behavior Health Unit’s Advisory Committee.
o PPB has created a successful model with the BHU’s Behavioral Health Response teams, in which a Project Respond Service provider is paired with a specially trained Patrol Officer to follow-up with individuals with mental illness who have had repeated contacts with law enforcement.
o The City’s Bureau of Emergency Communication (“BOEC,” or “911”) is in its nascent stage of compliance with revising protocols and training dispatchers to implement a fully operational crisis triage system. BOEC has just recently developed a robust training curriculum for its dispatchers and call takers, and training will begin this Fall.
o Portland’s CIT model differs from the Memphis Model because it does not reserve all or even nearly all mental health-related calls for the most highly trained Crisis Intervention Officers, those who have received Enhanced Crisis Intervention Training. To understand whether the Portland Hybrid Model successfully handles mental health calls for service, PPB has agreed to collect extensive data on how these calls are cleared. To obtain accurate data, PPB must train Patrol Officers on the significance of this effort, and how the information will serve PPB in staffing these calls.
• Employee Information System (“EIS”): PPB’s EIS is a complex instrument that PPB could put to better use for risk mitigation.
o PPB cannot adequately use the EIS to make finer-level comparisons between units because the system only permits comparisons between the division-level and precinctlevel groups, not between discrete shifts and specialized units.
o PPB has implemented Settlement Agreement-defined thresholds for review of Officers whose force exceeds a very high level; however, these thresholds have proven too high. We agree with COCL that PPB should consider more sophisticated thresholds to find outliers who engage in higher risk behavior.
o Once triggered, PPB should use the threshold to offer a meaningful opportunity to retrain or counsel the Officer. Optimally, the triggered Officers should return to the normative behavior of their peers and, thus, the EIS should reduce risk of potentially career-ending behaviors or potential rights violations. PPB should not merely treat EIS as a data warehouse.

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Case 3:12-cv-02265-SI Document 124 Filed 10/18/16 Page 4 of 6

• Accountability: PPB’s new leadership must rebuild trust from the community and PPB Officers after the prior Chief undercut the Independent Police Review (“IPR”) and PPB accountability systems.
o PPB’s successes include: • tracking timeliness of investigations (Par. 121); • performing concurrent criminal and administrative investigations (Par. 123); • working on—though not resolving—the 48-hour rule (Par. 124); • issuing many Communication Restriction Orders (“CROs”) when required (Par. 125); • beginning a process for a witness Officer’s walk-through of critical incidents (Par. 126); • Seeking contemporaneous interviews of Officers involved in critical incidents (Par. 127); • adding IPR investigators (Par. 128); and • providing greater direction to Police Review Boards (Par. 132).
o Challenges to ensure Officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent include:

• the former Chief’s covering up alleged misconduct (Sec. VIII); • the former Chief’s boycotting of CRC (Sec. VIII); • failing to hold Officers accountable in certain circumstances (Sec. VIII, Par. 129); • subverting CROs by sharing videos with PPB Officers at roll calls (Par. 125); • permitting a Captain to discourage the filing of a complaint (Par. 130); and

• begrudgingly addressing a liability finding, albeit absent assistance from the very plaintiff’s attorney who sought that remedy (Par. 133).

o Ultimately, the City plans to engage in comprehensive accountability reform through legislative action. If successful, this should provide a route to substantial compliance with the Settlement Agreement’s accountability provisions.
• Community Engagement: The Community Oversight Advisory Board (“COAB”) was an experiment in direct community participation in monitoring a police reform agreement.

o Unfortunately, the board’s ability to accomplish its work was significantly impaired by foundational problems such as: the lack of an informed vetting process for the selection

of members; a failure to adequately provide a comprehensive orientation and training of

the volunteers prior to beginning their substantive work; not accurately predicting the

amount of work required for policy recommendations; failure by City Commissioners to

appoint replacement members as their appointees resigned, as well as failure by the City

to finalize a process to select alternate at-large board members; infighting among

members and with COCL as to each other’s respective roles and the priorities of the

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workload; a change in COCL leadership and involvement; and civil unrest at meetings. o As a result of these foundational problems, the effort to keep the COAB functioning has
taken a disproportionate amount of time, with only mixed results in actually leveraging the ideas, talent, and expertise of the community as envisioned by paragraph 141 of the Settlement Agreement. o Furthermore, a key failure was lack of coordination between the board and the City to implement a Community Engagement and Outreach Plan and work on the long-existent plan to address racial profiling. We look forward to addressing the issues that have plagued the COAB as we consider modifications to the Settlement Agreement pursuant to our Paragraph 175 two-year comprehensive assessment. Like last year, our Report uses the following color-coded compliance status levels to
indicate our current assessment of PPB’s progress in complying with each provision of the
Settlement Agreement. This year, however, we have added some notations to provide increased
nuance to compliance status levels that did not change. The color coding is as follows:
• Blue: compliance rating pending or not measured. This level indicates that either the
provision does not have a specific measurement to assess, or that the United States has not yet
been able to fully assess compliance, either due to insufficient documentation provided for
assessment, or because the United States must complete additional analysis/observation of how
the specific provision is being implemented.
• Green: substantial compliance with an ongoing obligation. This level indicates that the
City has implemented the specific provision as required by the Settlement Agreement, and that
the City has an ongoing obligation to continue such action to remain in compliance.
• Yellow: partial compliance with an ongoing obligation. This level indicates that while
there has been progress made with implementation, specific areas need further attention in order
to reach substantial compliance.
• Red: non-compliance. This level indicates that we have recognized barriers to achieving
implementation of the provision that must be addressed to achieve compliance.

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Plaintiff’s Notice of Periodic Compliance Assessment Report; United States v. City of Portland; Case No. 3:12-cv-02265

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The Parties have acknowledged that the systemic reforms required by the Settlement Agreement will take time to implement. See, e.g., Settlement Agreement Par. 178(a) (anticipating substantial compliance with all provisions by October 12, 2017, which was the estimated date as of the date of the initial filing of the proposed Settlement Agreement on December 17, 2012).
Our analysis and technical assistance provided with this Report is intended to both acknowledge the City’s accomplishments achieved thus far and to advise the City on certain course corrections that will help achieve compliance.
At the status conference, we anticipate presenting the Court with an overview of our Report and answering any questions that the Court may have concerning this matter. DATED this 18th day of October, 2016.

Respectfully submitted,

BILLY J. WILLIAMS United States Attorney District of Oregon
JANICE E. HéBERT Chief, Civil Division
/s/ Adrian L. Brown ADRIAN L. BROWN Assistant U.S. Attorney

STEVEN H. ROSENBAUM
Chief, Special Litigation Section
/s/ Laura L. Coon LAURA L. COON Special Counsel /s/ R. Jonas Geissler R. JONAS GEISSLER Senior Trial Attorney /s/ Brian D. Buehler BRIAN D. BUEHLER Trial Attorney /s/ Seth Wayne SETH WAYNE Trial Attorney

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Plaintiff’s Notice of Periodic Compliance Assessment Report; United States v. City of Portland; Case No. 3:12-cv-02265

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United States v. City of Portland 2016 Settlement Agreement Compliance Assessment

Settlement Agreement Heading

III. USE OF FORCE

Partial Compliance – improvement noted

A. Use of Force Policy

Partial Compliance – improvement noted

B. Compliance Audits Related to Use of Force

Partial Compliance – improvement noted

IV. TRAINING

Partial Compliance – improvement noted

V. COMMUNITY-BASED MENTAL HEALTH SERVICES

Substantial Compliance

VI. CRISIS INTERVENTION

Provisional Substantial Compliance

A. Addictions and Behavioral Health Unit and Advisory Committee

Partial to Substantial Compliance

B. Continuation of Crisis Intervention (“C-I”) Program

Partial Compliance – improvement noted

C. Establishing “Memphis Model” Crisis Intervention Team

Provisional Substantial Compliance

D. Mobile Crisis Prevention Team

Substantial Compliance

E. Service Coordination Team

Substantial Compliance

F. Bureau of Emergency Communications (“BOEC”)

Partial Compliance

VII. EMPLOYEE INFORMATION SYSTEM (“EIS”)

Partial Compliance – improvement noted

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VIII. OFFICER ACCOUNTABILITY A. Investigation Timeframe B. On Scene Public Safety Statements and Interviews C. Conduct of IA Investigations D. Citizen Review Committee (“CRC”) Appeals E. Discipline F. Communication with Complainant and Transparency
IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD (“COAB”) X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT

Partial Compliance – improvement noted
Partial Compliance – improvement noted
Partial Compliance – improvement noted
Partial Compliance
Substantial Compliance
Partial Compliance – improvement noted
Substantial Compliance
Non-compliance – significant barriers
noted
Partial to Substantial Compliance

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III. USE OF FORCE
PPB shall revise its existing use of force policy and force reporting requirements to ensure that all force, particularly force involving persons with actual or perceived mental illness: (a) is used only in accordance with the Constitution and laws of the United States; (b) is no greater than necessary to accomplish a lawful objective; (c) is properly documented, reported, and accounted for; and (d) is properly investigated, reviewed, evaluated, and, if necessary, remedied. PPB shall attempt to avoid or minimize the use of force against individuals in perceived behavioral or mental health crisis, or those with mental illness and direct such individuals to the appropriate services where possible. In addition, PPB shall ensure that officers use non-force and verbal techniques to effect compliance with police orders whenever feasible, especially in the course of conducting welfare checks or effecting arrests for minor offenses or for persons whom officers have reason to believe are experiencing a mental health crisis; de-escalate the use of force at the earliest possible moment; only resort to those use of force weapons, including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function. To achieve these outcomes, PPB shall implement the requirements set out below.

Status

Partial Compliance—Ongoing obligation

Analysis

Compliance with this Paragraph requires that PPB draft policies that incorporate the Agreement’s requirements, and that PPB achieve the designated outcomes by training to the policies, applying them, and verifying that the policy requirements are being met in practice. This Paragraph also requires implementation of the subsequent Paragraphs in this Section.
Policies
As of this report, PPB has not revised its existing use of force policy. PPB published a draft of its use of force policy, Directive 1010.00, in November 2015. Compliance Officer Community Liaison (“COCL”) and COAB commented on the policy in April 2016. During the past year, the Parties have engaged in negotiations surrounding implementation of the Settlement Agreement’s force reporting requirements. Though these negotiations have not resolved the issues, Department of Justice (“DOJ”) and the City will endeavor to agree upon force policies compliant with the Settlement Agreement. DOJ and PPB are scheduled to discuss necessary changes to the policy in October 2016.
The current PPB Directive 1010.00 includes some of the requirements of the Agreement, but PPB must revise the policy to comport with all Settlement Agreement requirements. Directive 1010.00 emphasizes that force must be objectively reasonable under the totality of the circumstances. But Directive 1010.00 does not require that Members use force no greater than necessary to accomplish a lawful objective. The current 1010.00 does not address the use of non-force and verbal techniques to effect compliance (although PPB has revised Directive 850.20, “Police Response to Mental Health Crisis,” to address this requirement for the subset of calls involving actual or perceived mental illness and
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crisis). Directive 1010.00 does not call for minimizing the use of force against individuals in crisis or with mental illness; it calls only for Members, when deciding whether to use force, to “take into account all information, when feasible, including [indications] that a person has, or is perceived to have, mental illness.” Directive 1010.00 does not prohibit Officers from using force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function.
Directive 1010.00 provides poor direction to Members on documentation and reporting of force. See comments to Paragraph 69.
As to proper investigation, review, evaluation, and remedies of force, Directive 940.00 requires After Action Reports for many types of force, but the policy requires further revision. See comments to Paragraph 70.
Training
Portland Police Bureau provided training lesson plans from its 2014 and 2015 Advanced Academy classes (i.e., recent cadet graduates of state law enforcement training), and for in-service training that DOJ and COCL observed in December 2015. These lesson plans largely reinforced the point that Members may only use force that is objectively reasonable under the totality of the circumstances, and that weighing the factors recited in Graham v. Connor must support such a determination. These points were featured in classroom trainings and scenariobased trainings alike. However, the lesson plans do not instruct Officers to use force that is no greater than necessary to accomplish a lawful objective, and in fact, sometimes expressed a contrary view: several lesson plans opined that “Graham does not allow for a ‘least force’ or ‘best option’ analysis.” See, e.g., Lesson Plan – 2014-1 Advanced Academy – Use of Force, at 2 (on file). Use of force lesson plans encouraged Officers to consider known or suspected mental illness, but did not highlight minimizing use of force against individuals in crisis or with mental illness. Use of force trainings did not appear to focus on verbal de-escalation and non-force techniques, although DOJ observed such a lesson for Members seeking the specialized Enhanced Crisis Intervention Training (“ECIT”) certification, and some of the content therein could be adapted to train the entire police force.
Adhering to the requirements of the Settlement Agreement will require PPB to train Members on documenting, reporting, and accounting for use of force. Among other documents we reviewed was a 2015 PPB lesson plan entitled, “Use of Force and Conflict Reporting.” The lesson plan had many positive features, including instruction on reporting the circumstances justifying the use of force; however, instruction on reporting the actual force used, strangely, received only passing mention. Force must also be properly investigated, reviewed, evaluated, and, if necessary, remedied. On this point, PPB’s 2016 Q1 Force Audit Report called for additional “coaching from command and clear direction on reporting requirements.” Force Audit Rep. at 14. Supervisors we met with during a visit to PPB facilities reluctantly admitted that, although the Bureau has held discreet
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meetings in an attempt to message what is required, more formal training in this area is in order.
Performance
We did not find very many incidents that even arguably constituted unreasonable use of force in the sample of force reports and After Action reports that we reviewed. Notwithstanding, PPB’s 2016 Q1 audit presented serious concerns that did not arise in the cases in our sample. See, e.g., Force Audit Rep. at 5 (one baton, six hand/foot strikes, one canine bite, one pepper spray deployment, eleven Taser deployments, and nine firearms pointed against subjects who were “tensing up, thrashing around, wiggling”). These concerns will require renewed analysis by PPB.
However, a lack of necessary documentation prevents drawing any broad conclusions, and even on the evidence available, discreet issues persist. For example, supervisors are not consistently recording findings as to whether officers used the least amount of appropriate force. See Force Audit Rep. at 6 (Sergeants did not include such a finding in 8% of cases, Lieutenants in 14% of cases, and Captains or Commanders in 21% of cases).1 2 Documents and information missing from reports also make it premature to reach broad conclusions about whether Members de-escalate at the earliest possible moment, as discussed in our response to Paragraph 66(a).
PPB Members must also attempt to avoid or minimize the use of force against individuals in perceived behavioral or mental health crisis, or those with mental illness. PPB use of force reports included a number of instances in which PPB Members made good decisions in encounters with individuals with actual or perceived mental illness, particularly in those instances where ECIT Officers were deployed. We noted instances where Officers wisely developed a plan for taking the person into custody with less force than allowed by law. Any time Officers encounter individuals exhibiting signs of mental illness, allowing time to pass and developing a plan can be good practice.
Members do not appear to be consistently adhering to Bureau Electronic Control Weapon “ECW” policy, see comments to Par. 74(b), but we cannot say that they are resorting to use of force weapons, including less-lethal weapons, more than necessary.
Due at least in part to the confusing force reporting process established in Directive 1010.00, Members are not properly reporting, documenting, or accounting for all use of force in the Bureau. See Force Audit Rep. at 10 (Officers did not completely and accurately account for their force decision making in more than 22% of the
1 Strangely, even absent this information, the Force Audit Report found that “officers consistently chose force options reasonably calculated to establish or maintain control with the least amount of appropriate force.” Force Audit Rep. at 4. 2 In fairness to the supervisors themselves, PPB has not incorporated this requirement into policy, and guidance on After Action Report drafting has been limited.
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cases reviewed by supervisors).
Although we found many After Action Reports that reflected thorough investigation, review, and evaluation of force, After Action Reports were missing important information in as many as 50 cases, of 113 uses of force overall in 2016 Q1. See comments to Par. 75(b). This suggests room for improvement.
Portland Police Bureau’s success at directing individuals in perceived behavioral or mental health crisis, or those with mental illness, to the appropriate services is discussed in Section VI, Crisis Intervention.
The Force Audit Report does not capture whether officers use non-force and verbal techniques to effect compliance whenever feasible.
Members used force – sometimes considerable – against individuals who PPB describes as “wiggling, thrashing around, or tensing up.” See Force Audit Rep. at 5. Portland Police Bureau needs to assess whether such individuals “pose[d] a threat to officers or others, or impede[d] a valid law enforcement function.”

Technical Assistance

As described in DOJ’s comments throughout this Section, and as confirmed in the Force Audit Report, policies and trainings on use of force, reporting, investigating, and supervisory review all require attention. Portland Police Bureau must urgently improve the guidance that it is delivering to Members, particularly where Members are adapting to unfamiliar processes, such as the audit.

The Parties have held a monthly videoconference dedicated to addressing comments on one or more policies. Critical policies nevertheless remain outstanding. We recommend an extended summit between the Parties to resolve critical concerns with current policies.

We also recommend that PPB urgently begin developing training for supervisors on After Action investigation and chain-of-command review, to correct the documentation deficiencies discussed above.

A. Use of Force Policy
66. PPB shall maintain the following principles in its existing use of force policies:
a. PPB shall use only the force reasonably necessary under the totality of circumstances to lawfully perform its duties and to resolve confrontations effectively and safely; and

Status

Partial compliance – ongoing obligation

Analysis

Policy
Portland Police Bureau Directive 1010.00 “prohibits force that is not objectively reasonable.” This Directive requires that members “[s]atisfy the constitutional standard by using only force that is objectively reasonable under the totality of circumstances” and, “[w]hen applying force, continually assess the amount of force

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required, including the number of Officers required to control a subject and deescalate as reasonable.”
The above-quoted language of Directive 1010.00 presents an alternative formulation of the standard in Paragraph 66(a) of the Settlement Agreement. While 1010.00 largely captures Paragraph 66(a)’s mandate that PPB policy permit only the force that is reasonably necessary, it presents problems for compliance with other Settlement Agreement Paragraphs. See, e.g., comments to Par. 67 (highlighting that the current 1010.00 does not ask Members to de-escalate “the amount of force used, including the number of officers who use force, … to a level reasonably calculated to maintain control with the least amount of appropriate force”). Thus, PPB’s alternative formulation fails to achieve compliance.
Training
The Settlement Agreement requires that the City implement Paragraph 66, meaning PPB must train for adherence to Paragraph 66(a). As discussed above, an initial review of PPB lesson plans show that they use the standard of objective reasonableness under the totality of the circumstances; however, the lesson plans teach that Graham does not allow for a “least force” review. See Lesson Plan – 2014-1 Advanced Academy –Use of Force, at 2 (on file). See also PPB Lesson Plan – Defensive Tactics – Course Overview, at 3 (“encouraging” PPB members – but not requiring them—to “seek outcomes that involve less force than the upper maximum allowed by law”). This is an inaccurate restatement of Graham and contradicts the terms of the Settlement Agreement that City has agreed to defend. Nothing in the Constitution prohibits PPB from incorporating the terms of the Settlement Agreement into training, including Paragraph 66.
Performance
In DOJ’s 2015 Settlement Agreement Compliance Status Assessment Report, we noted, “In order to demonstrate that PPB has brought to fruition in practice Paragraph 66(a), PPB must be able to fully report on uses of force and audit force reports and investigations. Short of such reporting and auditing, PPB cannot demonstrate implementation of the force policy.” See also Settlement Agreement, introductory Par. on Use of Force (requiring that PPB implement its use of force policy); id. Par. 172 (requiring that PPB apply policies uniformly and hold Officers accountable).
Members are reporting force and supervisors are conducting investigations. Portland Police Bureau has been able to show its Members’ work in these areas through its new audit process and its first Force Audit Report. Portland Police Bureau has serious deficiencies in policy and training, see, e.g., comments to Pars. 69 and 70, and adherence even to current policy has been inconsistent. But force reporting and the advent of the audit have dramatically expanded PPB’s capacity to manage force.
The Force Audit Report found that “officers consistently chose force options reasonably calculated to establish or maintain control with the least amount of
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appropriate force when compared to the subject's resistance.” In light of the data that was missing or incomplete in far too many files, see comments to Par. 75(b), and concerns PPB raised about incomplete Officer narratives, see comments to Par.74(c)(ii), we think such a broad conclusion is premature. However, based on the case files that DOJ reviewed, there were a number of instances where Members made and described very good decisions leading up to the use of force. Here are two examples:
1. Members cornered a bank robbery suspect. A Member displayed his firearm, and ordered subject to the ground. The subject fled. Members caught him, and engaged in a brief struggle involving strikes to the subject. At one point, a Member threatened to use his Taser, but decided not to. The subject was subdued without resort to a weapon.
2. Members were dispatched to check on the welfare of a suicidal man; upon arrival, they found him in traffic, confronting vehicles and damaging cars. The Officers could not get the subject to respond. They made a plan to take him into custody for medical care. They decided against pepper spray due to wind. After multiple warnings, a Member deployed an ECW, but missed. The subject fled, running through private property. Officers decided to let subject run rather than tackle him, and the subject finally collapsed. Officers then took the subject into custody.
Documents PPB produced pursuant to this Paragraph: PPB did not produce documents related to Paragraph 66 in connection with its 2015 Q4, 2016 Q1, or 2016 Q2 reports.3

Technical Assistance

Portland Police Bureau will need to revise training consistent with the Agreement.
Portland Police Bureau is clearly focused on achieving compliance with Paragraph 66, but Members will need to report on all of the requirements in the Agreement with more consistency in order to create the record necessary to demonstrate compliance with this Paragraph.

b. PPB expects officers to develop and display, over the course of their practice of law enforcement, the skills and abilities that allow them to regularly resolve confrontations without resorting to force or the least amount of appropriate force.

Status

Partial compliance – ongoing obligation

Analysis Policy Portland Police Bureau Directive 315.30 includes clauses that touch upon the

3 Portland Police Bureau produces quarterly self-reports on the Bureau’s progress towards compliance. Documents supporting these reports’ findings accompany each report. We make reference to which documents, if any, PPB produces with these reports.
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principle embodied in Settlement Agreement Paragraph 66(b). Among other mandates, Directive 315.30 “requires that members use sound tactics and good decision-making during a confrontation” and, when managing a confrontation, requires that members “make confrontation management decisions based on available options reasonably calculated to resolve the confrontation safely and effectively, with as little reliance on force as practical.” See also id. (“The relevant inquiry for this confrontation management standard is whether the member pursued the Bureau’s goal of resolving a confrontation safely and effectively with as little reliance on force as practical and whether there is a valid reasoning in the member’s confrontation management decision-making.”). This, along with discussion of Members’ skill development, adequately captures the requirement of Paragraph 66(b).
Training
Portland Police Bureau must instruct Members on their obligations under Paragraph 66(b). The in-service use of force training we observed included a section that adequately emphasizes the need for skill development over Members’ careers.4 Ideally, the lesson plan should add a clause encouraging Members to resolve confrontations with no force when possible (in addition to the current instruction to use as little force as possible).
Portland Police Bureau will also need to train Officers to ensure the actual skills development. Thus, PPB will need to address the other gaps in training identified herein, and ensure that skill development is prioritized, in order to support
4 “Directive 315.30 Satisfactory Performance • In an event that involves both confrontation management and an application of force, member’s force use is governed by this Directive, Directive 1010.00, Use of Force, and member’s confrontation management is governed by the Bureau’s Directive 315.30, Satisfactory Performance. Members must meet the requirements of both policies. Compliance with one policy is not determinative of compliance with the other policy. • When managing a confrontation, members must make confrontation management decisions based on available options reasonably calculated to resolve the confrontation safely and effectively, with as little reliance on force as practical. • In applying this standard to a member’s performance, the Bureau shall evaluate the member’s decision-making from the perspective of the member at the moment the decisions were made. • This confrontation management standard is separate from and does not modify the useof-force standard in Directive 1010.00. • The relevant inquiry for this confrontation management standard is whether the member pursued the Bureau’s goal of resolving a confrontation safely and effectively with as little reliance on force as practical and whether there is a valid reasoning in the member’s confrontation management decision-making. • Over the course of their practice of law enforcement, members must develop and display the skills and abilities that allow them to regularly resolve confrontations without resorting to the higher levels of force allowed by the constitutional standard.” 9

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Members’ professional development and help them regularly resolve confrontations with little or no force.
Performance
Implementation also requires auditing to verify adherence to this standard. Portland Police Bureau has not shared any efforts to assess Members’ skill development in this area over the course of their practice of law enforcement. The Force Audit Report does not track Members’ use of force over their career (and, in fact, does not even track whether Members use force differently than others or contrary to policy). Routine administrative review of use of force is a relatively recent institution at PPB, so the Bureau will no doubt require time to build a record of Members’ skill development. Notwithstanding, documenting such development needs to be prioritized and rigorously conducted.
Portland Police Bureau did not produce any documents in support of compliance with Paragraph 66 related to its 2015 Q4, 2016 Q1, or 2016 Q2 reports.
Technical Portland Police Bureau is laying a foundation for eventual compliance with Assistance Paragraph 66(b).
Portland Police Bureau still needs to develop measures of how Members resolve conflicts, and whether they regularly use as little force as appropriate. This should take account of both Members’ successful resolution of confrontations and any problems that arise, so that the latter can be addressed.

67. PPB shall add to its use of force policy and procedures the following use of force principles:
a. Officers shall use disengagement and de-escalation techniques, when possible, and/or call in specialized units when practical, in order to reduce the need for force and increase officer and civilian safety;
b. In determining whether to use force, officers will take into account all information, when feasible, including behavior, reports, and known history as conveyed to or learned by the officer by any means, indicating that a person has, or is perceived to have, mental illness;
c. The use of force shall be de-escalated as resistance decreases and the amount of force used, including the number of officers who use force, shall de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force; and
d. Objectively unreasonable uses of force shall result in corrective action and/or discipline, up to and including termination.

Status

Partial compliance – ongoing obligation

Analysis Policy Portland Police Bureau has incorporated Paragraph 67(b) into policy. This is not

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the case for other elements of Paragraph 67. Portland Police Bureau must modify its policies consistent with the below:
• Although the current Directive 1010.00 discusses de-escalation after Members are already applying force, it does not discuss de-escalation prior to an application of force. Directive 1010.00 needs to direct Members to attempt de-escalation throughout an encounter.
• Paragraph 67(a) is clear: Members must use de-escalation techniques “when possible;” PPB must adopt this standard. Currently, Directive 1010.00 only requires de-escalation “as reasonable.”
• Similarly, 1010.00 must direct Members to de-escalate any use of force as resistance decreases and to reduce the amount of force used, including the number of Officers who use force, to a level reasonably calculated to maintain control with the least amount of appropriate force. Currently, 1010.00 only requires de-escalation and reducing the number of Officers “as reasonable.”
• Directive 1010.00 does not currently discuss disengagement; the policy must direct Members to use disengagement when possible.
• Portland Police Bureau should review Directive 1010.00 to ensure that it sufficiently directs Officers to take advantage of “specialized units” whenever they would reduce the need for force; currently, the Directive only mentions specialized units in response to persons in known or perceived mental health crisis.
• Portland Police Bureau use of force policies must clearly require corrective action and/or discipline, up to and including termination, for objectively unreasonable uses of force.
• Directive 1010.00 incorporates some of the language of Settlement Agreement Paragraph 67(c) – except that it only requires Members to deescalate “as reasonable,” rather than “de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force,” as required by the Agreement.
Training
While lesson plans that teach use of force policy emphasized the objective reasonableness standard, not all of the other elements required by the Settlement Agreement are appropriately addressed. One Advanced Academy lesson plan discouraged applying “a ‘least force’ or ‘best option’ analysis,” and stated that, where less force would be safe and effective, Members still need only “consider” reducing the force used (emphasis added). See Lesson Plan – 2014-1 Advanced Academy –Use of Force, at 2 (on file).
The Advanced Academy lesson plans discussed de-escalation, disengagement, and mental illness, but took an uncoordinated approach to these topics. De-escalation
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was discussed in greatest detail in the lesson plan on “Critical Incident Resolution,” but hardly at all in “Use of Force.” While PPB trainings on crisis response teach Members to utilize learned skills in negotiation and problem solving rather than defaulting to force, PPB’s lesson plan on “Use of Force and Conflict Reporting” inappropriately mentions mental illness exclusively in the context of justifying increased force. See, e.g., “Defensive Tactics—Use of Force and Conflict Reporting,” at 7 (2015) (“We often are confronted with suspects that are … so mentally altered … that they are stronger and more insensitive to pain than other citizens. Take the time to share in the report how the technique was expected to achieve a result, but the suspect was able to overcome it. The lack of success helps provide justification for switching to other methods of control.”). Performance Once PPB revises its policy to comply with Paragraph 67, it must implement the policy and hold Officers accountable for complying with these principles. De-escalation to maintain control with the least amount of appropriate force: As discussed in our response to Paragraph 66(a), it would be premature to make broad conclusions about Members’ de-escalation and adherence to the “least force” standard, given the missing documents and information discovered in the audit process. Disengagement when possible: The Force Audit Report did not assess Members’ use of disengagement. DOJ remains concerned that PPB’s policy on disengagement is not always well calibrated to the circumstances, in particular the risks subjects present to themselves or others. See comments to Paragraph 99. Corrective Action for Unreasonable Force: Because supervisors are not consistently documenting training, policy, or tactical deficiencies, see comments to Paragraph 77(e), we are unable to assess PPB’s performance here. Documents PPB produced pursuant to this Paragraph: PPB did not produce documents related to Paragraph 67 in connection with its 2015 Q4, 2016 Q1, or 2016 Q2 reports.
Technical Modify policies to include the requirements of the Agreement. Assistance Coordinate trainings such that they consistently instruct Members to adhere to
policy and observe the principles in the Agreement. Ensure that involved Members always submit reports, and that the reports capture all of the requisite elements.
1. Electronic Control Weapons 68. PPB shall revise PPB Directive 1051.00 regarding Taser, Less-Lethal Weapon System to include the following principles:
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a. Prohibition against the use of ECWs for pain compliance against those suffering from mental illness or emotional crisis except in exigent circumstances, and then only to avoid the use of a higher level of force;
b. Unless it would present a danger to the officer or others, that officers shall issue a verbal warning, or attempt to utilize hand signals where there is a language barrier or the subject is hearing impaired, prior to deploying their ECW;
c. Officers shall follow protocols developed by PPB in conjunction with medical professionals on their responsibilities following ECW use;
d. Only one ECW at a time may be used on a subject, intentionally, except where lethal force would be permitted;
e. After one standard ECW cycle (5 seconds), the officer shall reevaluate the situation to determine if subsequent cycles are necessary, including waiting for a reasonable amount of time to allow the subject to comply with the warning. Officers shall describe and explain the reasonableness of each ECW cycle in their use of force reports;
f. Officers shall make every reasonable effort to attempt handcuffing during and between each ECW cycle. Officers should avoid deployments of more than three ECW cycles unless exigent circumstances warrant use;
g. ECWs shall not be used on handcuffed or otherwise restrained persons, unless doing so is necessary to prevent them from causing serious physical injury to themselves or others, or if lesser attempts of control have been ineffective and/or to avoid greater application of use of force; and
h. Officers receive annual ECW in service training including proficiency and policy changes, if any.

Status

Partial compliance – ongoing obligation

Analysis

Policy
Portland Police Bureau has not modified its use of force policy, Directive 1010.00, to conform to the Settlement Agreement. In DOJ’s view, Directive 1010.00 should be finalized before Directive 1051.00 (ECW) undergoes review. Thus, pursuant to a working agreement between the Parties that has functioned effectively in other contexts, PPB has withheld revision of 1051.00. Our concerns about Directive 1051.00, as shared previously, include the following:
• The Directive does not require Members to utilize hand signals where there is a language barrier or the subject is hearing impaired as required by Paragraph 68(b).
• Paragraph 68(d) only permits the intentional use of more than one ECW at the same time in situations when “lethal force” would be permitted. Directive 1051.00, Section 2.11 lessens this standard for simultaneous use to avoid the need for a “higher level of force.”
• Directive 1051.00 omits Paragraph 68(f)’s prohibition of more than three 13

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ECW cycles absent exigency. Cf. Directive 1051.00, Section 1.9. • Commendably, PPB’s prohibition on ECW use against restrained subjects is
slightly more restrictive than Paragraph 68(g) requires. See Directive 1051.00, Section 2.5.
Training
Implementation requires annual training on electronic control weapons including proficiency and policy changes, if any. DOJ observed annual in-service training on electronic control weapons in December 2015. Based on our direct observation of PPB’s in-service training, we stated in our technical assistance letter:
PPB emphasized technical proficiency of ECW applications, but poorly integrated policy and critical decision making. Classroom training on ECW policy was rushed and referred to a prior legal training presentation, which, itself, was incomplete. Instruction needed clearer discussion of issuing warnings prior to deploying an ECW, including the fact that people in mental health crisis may need to be given more time to respond to commands. PPB did not present the full list of exclusions when Officers should not use an ECW. Instruction completely omitted mention of the risk of a subject falling after ECW application. There was also no discussion of probe removal or policy requirements for rendering aid for probe removal. COCL observed trainers emphasizing the need to go from “call-to-call” over the need to spend time speaking to subjects in crisis. Training should discuss the applicability of the crisis intervention policy and the Settlement Agreement mandate to call upon specialized units, such as ECIT Officers, when the situation permits.
United States v. City of Portland - Technical Assistance Letter Regarding InService Training (Feb. 26, 2016), available at https://www.justice.gov/crt/file/847051/download.
Performance
Implementation of the policy also requires performing pursuant to the standards in the Agreement and verification of that performance. Our review of PPB uses of force revealed concerns about ECW (Taser) deployments, as discussed in our analysis of Paragraph 74(b).
Some Members reported that two ECW models are in circulation in the Bureau. Pulling the trigger on one model automatically activates a five-second cycle. That is not the case with the other model: it remains activated during a continuous trigger pull.
Documents PPB produced pursuant to this Paragraph: PPB did not produce documents related to Paragraph 68 in connection with its 2015 Q4, 2016 Q1, or 2016 Q2 reports.
Technical As described further in response to Paragraph 74(b), PPB continues to see extensive
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Assistance

problems with ECW deployments. Too many ECW deployments violated policy; supervisors too often defended these policy violations; and Members candidly shared with DOJ that ECWs often malfunction, preventing appropriate use and reliable accountability. See also Force Audit Rep. at 5 (of the 26 cases in which Members deployed ECWs, 11 were used against individuals who were “tensing up, thrashing around, wiggling”).

Thus, PPB needs to revisit its ECW program at all levels. The Bureau will be revising all use of force policies, including its ECW policy. It has the necessary ECW trainers, but PPB could better execute ECW training, to include an emphasis on limiting ECW deployments to five seconds. It must also hold Officers accountable for ECW policy violations.

Further, PPB may want to explore the purchase of devices limiting the length of ECW deployments to five seconds. This way, Members would not need to guess how long they have deployed the weapon. (If PPB does provide new equipment, it will of course need to ensure Members receive training on it.)

2. Use of Force Reporting Policy and Use of Force Report
69. PPB shall revise its policies related to use of force reporting, as necessary, to require that:
a. All PPB officers that use force, including supervisory officers, draft timely use of force reports that include sufficient information to facilitate a thorough review of the incident in question by supervisory officers; and
b. All officers involved or witnesses to a use of force provide a full and candid account to supervisors.

Status Analysis

Partial compliance – ongoing obligation
Policy
According to the Agreement, “All PPB officers that use force . . . [must] draft . . . use of force reports that include sufficient information . . ..” The current PPB Directive 1010.00 requires that, “Members who use force must include a description of that exercise of police authority in the report required by Directive 910.00.” See Directive 1010.00, section 9.1. Directive 910.00 covers General Offense Reports, often used to convey information about criminal investigations. See, e.g., Directive 910.00, subsection 2.2.2 (“Reports [include] the results of the member’s investigation[,] the disposition of any property or evidence taken into custody, the results of records searches, . . . etc.”). Use of force reports serve an entire different function from these general offense or incident reports: force management and accountability for Officers’ conduct, principally. It is not generally accepted practice to use incident reports to serve these force management and accountability functions. If PPB intends to do so, it needs to be clear about Members’ obligations.

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Directive 1010.00 is not sufficiently clear. As to some types of use of force— control holds where no injury occurs—Directive 1010.00 only requires the General Offense Report. As to other types of force, 1010.00 also requires Members to “submit the Force Data Collection Report (“FDCR”) section of the General Offense Report.” See Directive 1010.00, section 9.2 (requiring the FDCR only for “the force options listed on that report”). And for uses of force that qualify as “force events,” but not other uses of force, Directive 1010.00 advises Members that they must “initiate the 940.00 process.” In sum, the policy is confusing, and does not conform to generally accepted practices for reporting force.
Directive 1010.00 also does not sufficiently instruct Members on what their force reports must contain. Few of the requirements of Settlement Agreement Paragraphs 74(a)(i) and 74(c) appear in Directive 1010.00. Thus, PPB fails to instruct Members to include information on which supervisors will later judge their reports. Compounding the risk of confusion, Members in some cases will be reporting force via a form normally dedicated to reporting crimes, without the Force Data Collection Report to guide them.
In the grand scheme, PPB’s revisions to 1010.00 several years ago clearly improved force management by requiring the reporting of use of force. However, maintaining different processes for different types of force makes the force management process unnecessarily complicated for PPB’s Members, supervisors, and Chief.
PPB’s policies must also include a timeliness requirement, e.g., before the end of the Officer’s shift, unless incapacitated. Directive 1010.00 includes no such requirement. Directive 910.00 permits the involved Member to submit the field report the day after the use of force, with supervisor approval. (Additionally, Directive 910.00 does not require sufficient information in the report, as discussed above.)
Portland Police Bureau must also require Members to timely and accurately report shootings in which they are involved, i.e., it will need to undertake revisions to Directive 1010.10.
Directive 1010.00 does not require Members to provide a full and candid account of uses of force that they witness.
Training
Portland Police Bureau produced lesson plans related to reporting use of force. Many aspects of these trainings are sound. The Advanced Academy lesson plan on “Use of Force and Conflict Reporting” instructs Members to “address all of the elements defined under ‘totality of the circumstances’” in their report, using PPB’s Use of Force directive as a template. The lesson plan distinguishes between the authority to make an arrest, on the one hand, and whether the severity of that crime justifies a given use of force, on the other. The lesson plan encourages Members to cite specific facts in addition to conclusions such as “subject resisted.”
However, trainings in this area will need to be improved. For example, the
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Advanced Academy lesson plan counsels Members to “positively report the totality of the circumstances” (emphasis added). Reminding Officers to report neutrally all relevant facts, including those circumstances that support a decision to use force, is appropriate. Repeatedly admonishing Officers to emphasize the positive is disconcerting. Further, these admonitions come at the expense of instructions to include in reports other elements required by the Settlement Agreement, such as discussing the actual force applied.
The training contains other concerning messages. To cite two examples: • The Advanced Academy lesson plan counsels Officers, “After having survived and been victorious in a force encounter, don’t later become victim to legal or administrative review unnecessarily.” This choice of words presents several problems. An Officer’s “survival” may be at stake in some encounters, but certainly not all cases where force is used. It does not advance the goals of the training to portray all uses of force as a competition or test of survival. Moreover, the City of Portland agreed that the Police Bureau should implement routine administrative review of use of force, and training should not suggest otherwise. Portland Police Bureau’s characterization of Officers adhering to such a review as “victims” is also at odds with the terms of the Settlement Agreement and generally accepted practices. • The Advanced Academy lesson plan tells Officers, “Who gets to define the ‘totality of circumstances?’ You do.” Seemingly, PPB intended this turn of phrase to underscore the importance of Officers reporting the factors they considered in using force. However, the quoted passage also sends the erroneous message that the Officer is the ultimate arbiter of what facts render use of force reasonable or not. A supervisor or judicial Officer may view the totality of the circumstances differently than the Officer does in her or his report; PPB should not promise otherwise.
PPB trainings will also need to instruct Members to include all of the requirements in Agreement Paragraphs 74(a)(i) and 74(c) in their force reports.
Performance
Timeliness of Involved Officers’ Use of Force Report. Par. 69(a).
As discussed below in response to Paragraph 74(c)(i), PPB’s audit of the timeliness of submission of force reports requires further refinement to ensure (1) that it uses reliable data, and (2) that it measures adherence to proper Bureau policy, rather than some other standard. The Force Inspector will also want to explain going forward why no FDCRs were submitted after some uses of force, and why others were days or weeks late, as the audit found.
Sufficiency of Information in Involved Officers’ Use of Force Reports and Witness Officers’ Accounts. Par. 69(a).
Portland Police Bureau is almost certainly underreporting force. Directive 1010.00
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does not require Members to complete FDCRs for control holds when they do not result in injury, so at a minimum, PPB has limited data about such incidents. Portland Police Bureau also chose to exclude from its audit some instances in which firearms were pointed at subjects. See, e.g., Force Audit Rep. at 2 (“Pointing of a Firearm … was audited only when used with another AAR generating force option (takedown, for example). … This number [of pointing firearms cited in the Report] is not representative of the total number of PFA applications.”). Without a comprehensive and precise picture of all PPB uses of force, it is difficult to gauge how effectively Members are reporting force. As PPB’s audit and our review of the existing data both found, Members’ reports are too frequently incomplete (and supervisors are too often failing to identify problems). See comments to Paragraph 74(c). Witness Officer Accounts. Par. 69(b). We reviewed many cases in which investigating supervisors interviewed numerous witnesses, both Officer and civilian, including some that bordered on exhaustive. Likewise, the Force Audit Report found, “The investigating Sergeant personally spoke to the involved witness member to make an inquiry sufficient to describe the nature of the force and the member's justification in 85 (94%) of the 90 AARs audited that included a witness officer.” Force Audit Rep. at 13. The five outlier cases noted in the audit need to be addressed appropriately. Documents PPB produced pursuant to this Paragraph: PPB did not produce documents related to Paragraph 69 in connection with its 2015 Q4, 2016 Q1, or 2016 Q2 reports.
Technical The Bureau should revise 1010.00 to direct Members who use force (or supervise Assistance the use of force) to complete a single use of force report with the necessary data and
narrative description for all types of force. Portland Police Bureau should also require Members to report all uses of force that they witness in writing. Properly done, this would satisfy Paragraph 69(b) and enable PPB supervisors to review some uses of force in a more streamlined manner. Portland Police Bureau supervisors can still interview witness Officers as needed. Policy and training on force reporting needs to advise Members of all of the elements that their force reports must contain. See comments to the other Paragraphs referenced in the above analysis for technical assistance.
3. Use of Force Supervisory Investigations and Reports 70. PPB shall continue enforcement of Directive 940.00, which requires supervisors who receive notification of a force event to respond to the scene, conduct an administrative review and investigation of the use of force, document their findings in an After Action Report and forward
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their report through the chain of command. PPB shall revise Directive 940.00 to further require that supervisory officers:
a. Complete After Action Reports within 72 hours of the force event;
b. Immediately notify his or her shift supervisor and PSD regarding all officers[’] Serious Use of Force, any Use of Force against persons who have actual or perceived mental illness, or any suspected misconduct. Where the supervisor suspects possible criminal conduct, the supervisor shall notify the PPB Detective Division. Where there is no misconduct, supervisors also shall determine whether additional training or counseling is warranted. PPB shall then provide such counseling or training consistent with this Agreement;
c. Where necessary, ensure that the subject receives medical attention from an appropriate medical provider; and
d. Interview officers individually and not in groups.

Status

Partial compliance – ongoing obligation

Analysis

Policy
The Settlement Agreement defines “Force” as “any physical coercion used to effect, influence or persuade an individual to comply with an order,” beyond “ordinary handcuffing of an individual who does not resist.” Settlement Agreement Par. 31. Portland Police Bureau must ensure that “all force . . . is properly investigated, reviewed, evaluated, and, if necessary, remedied.” Id., Introduction Paragraph, Use of Force section. What constitutes proper investigation, review, evaluation and remedies may vary depending on the type of force applied and other considerations: the use of a control hold against minimal resistance may require less post hoc review than an officer-involved shooting, for example. Nevertheless, according to the Agreement, PPB must appropriately investigate, review, evaluate and remedy deficiencies in both of these examples.
Against this backdrop, Paragraph 70 requires that PPB enforce Directive 940.00, that is, require supervisors to investigate and review all “force events,” document investigative findings, and submit the findings for chain-of-command review. The definition of “force” appears above; the Settlement Agreement does not separately define “force event.” Thus, while PPB may be at some liberty to define “force event,” it must operate to ensure that force is properly reviewed, evaluated, and if need be, investigated and remedied. Moreover, the policy should meet generally accepted practices for review of force. See Settlement Agreement, Introduction Paragraph, Use of Force section.
The Directive does not currently meet these requirements. Currently, Directive 940.00 defines “force event” by reference to those types of force that PPB chooses to list in the Force Data Collection Report section of the General Offense Report. This creates several problems. First, the policy definition will fluctuate as the FDCR form changes, which is far too fluid a means for defining what use of force

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require what level of review. Defining those “force events” that must be investigated by reference to those types of force listed in the use-of-force report also creates the counterproductive incentive for PPB to minimize the categories of force listed on its force reporting form, so as to eliminate the need to investigate them. In fact, PPB has done just this by omitting ‘control hold without injury’ from the FDCR. It is unclear what supervisory review, if any, these control holds receive. Finally, Directive 940.00 itself currently excludes an important type of use of force—pointing a firearm—from any type of 940.00 review requirement. PPB policy must ensure a proper investigation, review, and evaluation of every use of force by a PPB Member. What constitutes proper investigation, review, and evaluation may vary. But PPB must clearly define the parameters for all investigations, reviews, and evaluations, even where more abbreviated in scope.
Our other policy concerns include the fact that Directive 940.00 requires completion of the After Action Report within 72 hours, but provides for an extension that is not in the Agreement. Moreover, the grounds for the extension are not set forth in policy.
Finally, PPB policies contain language that is similar to, but materially different than, the requirements of 70(b) and (c). Neither Directive 940.00 nor Directive 1010.00 contains the language in Paragraph 70(d).
Training
Command staff shared that force reporting has given Members the opportunity to hone report-writing skills, but PPB members consistently suggested PPB provide them additional, formal training on the force reporting and After Action Review process. The most recent such in-service training may pre-date the effective date of the Settlement Agreement.
Performance
Portland Police Bureau’s Force Audit Report says that certain types of force did not trigger an After Action Review. See, e.g., Force Audit Rep. at 2 (“Cases involving [pointing a firearm] only do not generate an AAR.”). But PPB does not describe what review, investigation, or evaluation supervisors undertook in response to use of force that did not receive AAR treatment. This presents a challenge to assessing compliance with the Settlement Agreement’s requirements regarding use of force investigations.
The Force Audit Report found that almost all After Action Reports were completed within 72 hours. See comments to Par. 75(a).
The Force Audit Report did not adequately assess and describe performance under subparagraph 70(b). See comments to Pars. 75(k)-(l).
Documents PPB produced pursuant to this paragraph: PPB did not produce documents related to Paragraph 70 in connection with its 2015 Q4, 2016 Q1, or 2016 Q2 reports.
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Technical Assistance

As stated above, PPB policy must set forth a clear process that requires review and evaluation of force, and where necessary, investigation and corrective action. This applies to all control holds and pointing of firearms, just as with other types of force. PPB should use the definition of “force” from the Settlement Agreement to ensure that this takes place.

The rigorous investigation and review process that is beginning to take hold at PPB is reasonable for most types of force.

A more limited review process for control holds that do not result in injury, for example, could conform to the Agreement if it were properly implemented. Under the right circumstances, Sergeants could be permitted to assess Members’ use of control holds (without injury or complaint thereof) based on written statements from involved and witness Officers and other available evidence. Sergeants could interview Officers as necessary. PPB would also need to ensure thorough and accurate written reports by involved and witness Officers, and hold Sergeants strictly accountable for making thorough and accurate findings. Chain of command supervisors would review the Sergeant’s findings and conclusions. This would free up supervisors to better oversee field operations and ensure accountability for more problematic uses of force.

71. PPB shall maintain adequate patrol supervision staffing, which at a minimum, means that PPB and the City shall maintain its current sergeant staffing level, including the September 2012 addition of 15 sergeants.

Status

Substantial compliance – ongoing obligation

Analysis

Portland Police Bureau reported 134 Sergeants and 651 Police Officers in fiscal year 2012-13, see Michael Reese and Charlie Hales, Memorandum Re: Police Bureau FY 2013-14 Budget Request, Attachment at 34 (Feb. 4, 2013), available at https://www.portlandoregon.gov/cbo/article/433623, a staffing level of just less than one Sergeant to every five Officers. (1:5.1)
Portland Police Bureau reported 135 Sergeants and 684 Police Officers in fiscal year 2015-16, see Lawrence P. O’Dea III and Charlie Hales, Memorandum Re: Police Bureau FY 2016-17 Budget Request, Attachment at 44-45 (Feb. 1, 2016), available at https://www.portlandoregon.gov/cbo/article/561732 (“FY 2016-17 Requested Budget”), a staffing level of just better than one Sergeant to every five Officers. (1:4.8)
Note: PPB anticipates that a “staffing level crisis” will leave it with 120 fewer sworn Officers at the end of fiscal year 2015-16 than at the beginning of fiscal year 2013-14. FY 2016-17 Requested Budget, at 2. Reduced staffing levels have resulted from budget cuts in fiscal year 2013-14 and the subsequent departure of more than 80 Officers. Id. Hiring has not kept pace with this attrition. Id. Portland Police Bureau does not report that reduced staffing will reduce the ratio of
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sergeants to officers. FY 2016-17 Requested Budget, Attachment at 44-45 (requesting funding for 592 Officers and 125 Sergeants).
Documents PPB produced pursuant to this paragraph: in 2016 Q1 and Q2, PPB produced one-page memoranda showing the distribution of Sergeants by precinct and shift for each quarter.
Technical N/A Assistance

72. PPB shall develop a supervisor investigation checklist to ensure that supervisors carry out these force investigation responsibilities. PPB shall review and revise the adequacy of this checklist regularly, at least annually.

Status

Partial compliance – ongoing obligation

Analysis

Portland Police Bureau included in its documentation in support of its 2016 Q1 and Q2 quarterly reports a copy of the supervisor’s checklist form.
The supervisors with whom DOJ spoke stated that they frequently do not use PPB’s checklist at all, and in some cases, individual supervisors or precincts have developed alternative checklists or methodologies to guard against leaving mandatory information out of an After Action Report.
DOJ and PPB’s own Force Inspector appear to agree that mandating the use of a single checklist would benefit the force review and audit processes. Members and supervisors would benefit from a set of shared expectations about what each report must contain.
DOJ discussed with PPB the possibility of creating a data entry portal or form that obligates the user to enter (or find ‘not applicable’) every piece of information required by the Settlement Agreement, while also prompting the user to enter narrative information as appropriate. Such a portal, if properly designed and implemented, could define expectations for supervisors, while helping PPB to satisfy the requirements of paragraph 72. PPB took the helpful step of starting to design a portal that could form the basis for progress on this front.
PPB reports delaying the mandatory annual revisions to the checklist until Directive 940.00 is revised.

Technical In order to provide clear guidance, set clear expectations, and ensure that the Assistance responsibilities in the checklist are carried out, PPB policy needs to mandate the
elements of the investigation included in the checklist.

73. PPB shall revise its policies concerning chain of command reviews of After Action Reports, as necessary, to require that:
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a. EIS tracks all Directive 940.00 comments, findings and corrections;
b. All supervisors in the chain of command are subject to and receive corrective action or discipline for the accuracy and completeness of After Action Reports completed by supervisors under their command;
c. All supervisors in the chain of command are accountable for inadequate reports and analysis;
d. A supervisor receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position when he or she repeatedly conducts deficient investigations. Where a shift commander, or precinct commander, repeatedly permits deficient investigations, the shift commander, or precinct commander, receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position;
e. When, after investigation, a use of force is found to be out of policy, PPB shall take appropriate corrective action consistent with the Accountability provisions of this Agreement;
f. Where the use of force indicates policy, training, tactical, or equipment concerns, the immediate supervisor shall notify the Inspector and the Chief, who shall ensure that PPB timely conducts necessary training and that PPB timely resolves policy, tactical, or equipment concerns; and
g. The Chief or designee, as well as PSD, has discretion to re-assign a use of force investigation to the Detective Division or any PPB supervisor.

Status

Partial compliance – ongoing obligation

Analysis

Policy
Section 5 of Directive 940.00 does not address supervisors’ obligations with respect to submitting into the Employee Information System (“EIS”) comments, findings, and corrections from after action reviews. This is a necessary step to meet the tracking requirements of Paragraph 73(a). The mere cross reference to the “Employee Information System Directive 345.00” in the header to 940.00 is insufficient. Directive 345.00 does not, on its own, meet the broader recordation requirements of Paragraph 73(a).
Current PPB policy does not specify that Members, and those who review their reports may receive discipline for inaccurate or incomplete reports (although the disciplinary matrix does say that failure to submit a report may result in discipline). Directive 940.00 requires that conducting or permitting subordinates to conduct repeated deficient investigations will be “addressed,” but does not specify that supervisors may be demoted and/or removed from a supervisory position as a consequence.
Training
Portland Police Bureau will need to advise Members of these provisions during
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training on force reporting and investigations. The trainings DOJ reviewed did not include discussion related to Paragraph 73.
Performance
The Force Audit Report found that supervisors rarely use EIS to document their discussion of policy or training deficiencies or poor tactical decisions. See Force Audit Rep. at 21; compare Par. 73(a). This instills little confidence that EIS is effectively tracking any other Directive 940.00 comments, findings or corrections, as required by Paragraph 73.
The Force Audit Report provided some indication of the actual completeness, accuracy, and adequacy of reports, sharing that additional investigation was often needed, but not ordered. See comments to Par. 77(b); comments to Par. 74(c). Cf. comments to Par. 75(b). But, the Report never says whether supervisors’ failure to resolve these incomplete investigations resulted in “corrective action or discipline.” Compare Par. 73(b). We cannot say whether supervisors in the chain of command are held accountable for inadequate reports and analysis. Compare Par. 73(c).
The Force Audit Report did not mention whether the Force Inspector and or Chief was notified of policy, training, tactical, or equipment concerns, notwithstanding that more than 30% of supervisor reviews identified some tactical or training issue. See Force Audit Rep. at 7. The Force Audit Report also did not discuss whether PPB conducted any necessary training or resolved the tactical issues found. This is of particular concern given that PPB has well-known equipment problems that require redress. See Technical Assistance in response to Paragraph 68.
The Force Audit Report did not directly address whether a supervisor repeatedly conducted deficient investigations or more senior supervisors repeatedly permitted them. However, 22% of supervisory reviews should have identified an incomplete report and did not. See comments to Par. 76(c).
Documents PPB produced pursuant to this paragraph: PPB did not produce documents related to Paragraph 73 in connection with its 2015 Q4, 2016 Q1, or 2016 Q2 reports.

Technical Assistance

Note that ensuring that supervisors include in After Action Reports the items on Paragraph 72’s checklist or other Settlement Agreement required contents does not equate to requiring that such information occupy a specific line on a specific form. If supervisors include the requisite information in a report, they should not be penalized for placing the information in an unpreferred location on that form. PPB must empower its supervisors to investigate Members’ compliance with the policy elements corresponding to the standard in this Paragraph, and empower more senior supervisors to join or dissent from the Sergeants’ findings, as appropriate. Unnecessarily penalizing supervisors demoralizes, rather than empowers.

At the same time, we are eager to find solutions that work for PPB’s Force Inspector and auditing staff to make the process work for them, too.

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B. Compliance Audits Related to Use of Force 74. In consultation with the COCL, the Inspector, as part of PPB’s quarterly review of force, will audit force reports and Directive 940.00 Investigation Reports to ensure that:
a. With respect to use of force generally: i. reports describe the mental health information available to officers and the role of that information in their decision making; ii. officers do not use force against people who engage in passive resistance that does not impede a lawful objective; iii. when resistance decreases, officers de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force; iv. officers call in specialty units in accordance with procedure; v. officers routinely procure medical care at the earliest available opportunity when a subject is injured during a force event; and vi. officers consistently choose options reasonably calculated to establish or maintain control with the least amount of appropriate force.
b. With respect to ECW usages: i. ECW deployment data and Directive 940.00 reports are consistent, as determined by random and directed audits. Discrepancies within the audit should be appropriately investigated and addressed; ii. officers evaluate the reasonableness and need for each ECW cycle and justify each cycle; when this standard is not met, this agreement requires supervisor correction; iii. officers are universally diligent in attempting to use hands-on control when practical during ECW cycles rather than waiting for compliance; and iv. officers do not attempt to use ECW to achieve pain compliance against subjects who are unable to respond rationally unless doing so is reasonably calculated to prevent the use of a higher level of force.
c. With respect to use of force reporting, the reports: i. are completed as soon as possible after the force incident occurs, but no later than the timeframes required in policy; ii. include a detailed description of the unique characteristics of the event, using common everyday language, sufficient to allow supervisors to accurately evaluate the quality of the officer’s decision making and performance; iii. include a decision point description of the force decision making; iv. include a detailed description of the force used, to include descriptive information regarding the use of any weapon;
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Status Analysis

v. include a description of any apparent injury to the suspect, any complaint of injury, or the absence of injury (including information regarding any medical aid or on-scene medical evaluation provided);
vi. include the reason for the initial police presence;
vii. include a description of the level of resistance encountered by each officer that led to each separate use of force and, if applicable, injury;
viii. include a description of why de-escalation techniques were not used or whether they were effective;
ix. include whether the individual was known by the officer to be mentally ill or in mental health crisis;
x. include a general description of force an officer observes another officer apply; and
xi. demonstrate that officers consistently make diligent efforts to document witness observations and explain when circumstances prevent them from identifying witnesses or obtaining contact information. Reports will include all available identifying information for anyone who refuses to provide a statement.
Partial compliance – ongoing obligation
In 2015, we asked that “PPB and the COCL . . . actively engage with one another in developing the sample size and methodology for the audits and discuss the qualitative assessments of the sample with COCL’s police practices expert.” Settlement Agreement Compliance Status Assessment Rep., at 14 (Sept. 10, 2015). Portland Police Bureau did consult with COCL to develop a methodology for the audit, and audited force reports and After Action Reviews in 2016 Q1. As noted above, this is an important first step. We appreciate the hard work of those PPB Members who have accurately memorialized the instances in which they have been compelled to use force; Sergeants (and other frontline supervisors) who have rigorously investigated force incidents and memorialized their findings; supervisors in the chain of command who have reviewed findings; and criminal analysts who reviewed, compiled, and distilled the information in the force reports.
Significant work remains. Improvements in policies and training noted herein will provide Members with clarity on their respective obligations to report, review, investigate, and ensure accountability for use of force. The audit also requires improvements, including:
• Developing better measurements (for example, the component data for its decision-point analysis);
• Reporting how it reached some conclusions;
• Ensuring that far-reaching conclusions are based upon complete and accurate data in reports; and,

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• Eliminating typographical errors from the data and statistics reported.5
These concerns are discussed in greater detail herein.
Documents PPB produced pursuant to this Paragraph included: • Force Audit Report 2016 Q1; • Force Audit Report Cover Memo; • Force Data Summary Reports for 2015 Q4 and 2016 Q1 and Q2; • Audit details for several dozen individual force cases.
(Paragraphs 74-77 almost universally referenced the same sets of documents from one report to the next.)
Use of Force
The audit must ensure that force reports describe the mental health information available to Members and its role in their decisions. See Par. 74(a)(1). To ensure this outcome, the audit must first identify in which cases Members had information about a subject’s mental health and in which they did not. The Force Audit Report does not describe whether the Force Inspector made this assessment. The Report says that in 52 cases, Members did say that mental health information was available; as to the other 159 cases, the Report does not say whether mental health information was available or not. (Concerns about the accuracy of the data are underscored by the fact that many Members described the mental health information available to them, but did not check a box to that effect.) If Members are not reporting whether mental health information is available or not, it may be that PPB policy does not direct them to.
The Force Audit Report does reveal that those Members who state that they had mental health information available could articulate some role that the information played in their force decision-making. This is promising.
Portland Police Bureau’s distinction between “passive” and “active” resistance does not comport with the Settlement Agreement, making it impossible to gauge to what extent its Members “use force against people who engage in passive resistance that does not impede a lawful objective.” Par. 74(a)(ii). The Settlement Agreement defines “passive resistance” as “non-compliance with officer commands that is non-violent and does not pose an immediate threat to the officer or the public.”
5 Two examples may be representative: • The Report says that a subset totaling 17 ECW applications equates to 40% of the total Bureau-wide ECW applications for the quarter, and a second subset of 13 applications equates to 60% of the total. See Force Audit Rep. at 9. It appears that PPB mixed up the percentage attributable to each of the two subsets. • The Report says in one paragraph that nine serious use of force cases occurred during the first quarter, then in the next paragraph says that five such cases occurred. See Force Audit Rep. at 20. 27

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Par. 46. The Settlement Agreement’s definition would include “wiggling” and “tensing up,” and in many cases might include “thrashing around”—all behaviors that PPB excludes from its own definition of “passive resistance.”
Portland Police Bureau Members pointed firearms and used batons, hand and/or foot strikes, K9 bites, pepper spray, Tasers, and takedowns against individuals who were tensing up, thrashing around, and/or wiggling. Future audits will need to review these incidents with the scrutiny mandated by the Settlement Agreement to determine whether they meet the Settlement Agreement’s definition of passive resistance, and whether the force used was appropriate.
Supervisors are not consistently recording findings as to whether officers used the least amount of appropriate force. See Par. 74(a)(vi); Force Audit Rep. at 6 (Sergeants did not include a finding in 8% of cases, Lieutenants in 14% of cases, and Captains or Commanders in 21% of cases). Investigations lacked important data and testimony, including missing FDCRs and Taser download reports. See comments to Par. 76. Finally, PPB’s understanding of what force is appropriate also appears to conflict with the language of the Settlement Agreement. See infra (pointing out disparity between PPB definition of “passive resistance” and that in the Settlement Agreement). Absent this information and analysis, and given PPB’s misapplication of the Settlement Agreement, it is hard to concur with the Force Audit Report’s broader conclusion that “officers consistently chose force options reasonably calculated to establish or maintain control with the least amount of appropriate force.” Id. at 4.
The Force Audit Report’s review of whether officers called in specialty units in accordance with procedure was helpful. The Report cites the three most common specialized units called. The Report cited one supervisor’s finding that a specialized unit should have been called but was not. At the same time, the Report acknowledges that PPB is still developing an independent, reliable measure for whether or not officers are calling specialized units in accordance with policy.
Audit reports to ensure that officers routinely procure medical care at the earliest available opportunity when a subject is injured during a force event. Par. 74(a)(v).
The Force Audit Report states that officers consistently documented the medical care subjects received. Force Audit Rep. at 12. But the Report does not state whether subjects received care at the earliest available opportunity. This will be a focus of our review going forward.
ECW (Taser) Usage
The Inspector conducted many of the requisite reviews. The Force Audit Report, in conjunction with other data and our independent review of PPB ECW (Taser) deployments, raised concerns.
For example: • ECW deployment data was missing from 5 of the 22 ECW deployment cases in 2016 Q1. See Force Audit Rep. at 8. This prevents the Inspector
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from assessing deployment data for consistency with officer testimony or identifying discrepancies. See Par. 74(b)(1).
• We also found inconsistencies between the actual deployments of ECWs and the Members’ intended and/or perceived deployments: for example, a single ten-second cycle when a Member reportedly perceived two fivesecond cycles; a seven-second cycle following by an eight-second cycle that the member “intended . . . to be one continuous cycle”; etc. These unintended discharges were rarely explained sufficiently or appropriately scrutinized by superiors.
• Current PPB Directive 1051.00 requires, “After an ECW cycle the member shall reevaluate the situation to determine if subsequent cycles are necessary, including waiting for a reasonable amount of time to allow the subject to comply with the warning.. . . When the operator of the ECW overrides the automatic five (5) second shut down by continually commanding energy delivery, each additional five (5) seconds or fraction thereof, is a unique cycle and requires justification by the operator.” Directive 1051.00. Portland Police Bureau Members did not consistently adhere to this policy, and supervisors did not consistently enforce it. Some PPB Taser deployments extended beyond the standard five-second cycle. In some cases, supervisors failed to note the policy violation—and even defended their conclusions, despite access to the policy demonstrating otherwise and the opportunity to reflect upon the case. This is problematic and inconsistent with the Settlement Agreement, policy and generally accepted practice.
• The Force Audit Report provided voluminous information associated with officers’ attempts to use hands-on control during ECW cycles (Par. 74(b)(iii)), but never arrived at the critical issue: whether Members diligently attempted to use control holds in lieu of continued ECW cycles. The Report did indicate involved Members’ opinions about whether handson control was practical; whether the involved Member’s narrative contained sufficient information; and considerations weighed by the Members in deciding between further ECW deployments and hands-on control. We encourage including this information in future reports, although it needs to be synthesized to describe whether Members are making appropriate judgments about whether hands-on control can be achieved. This section of the Report was difficult to parse, in part because the Report switched between discussing ECW ‘cases’ and ECW ‘cycles’ when citing figures.
• The Report does not discuss whether ECW’s were used for pain compliance. Compare Par. 74(b)(iv).
• In one case, the officer reported that he deployed his ECW because the subject was holding a screwdriver while in “a ready stance or aggressive posture”—the meaning of which was unclear. To make matters worse, the
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Captain in the chain of command reported that the officer deployed his ECW, “to stop [the subject from] eluding on foot . . ..” Somehow, the Captain also found that the subject “still . . . presented an immediate threat to the officer.” Ambiguities in the reporting and review process like this call into question the versions of events reported and set unclear standards for Members.
• The actual ECWs in circulation at PPB may be subject to malfunction. One supervisor acknowledged that PPB is not providing Members with equipment designed to capture accurate data: “some of the older Tasers show inaccurate deployments.”
• At least one supervisor misunderstands how ECW technology works. The supervisor commented that a hand/foot strike was appropriate because an alternative force option—the Taser—could have delivered an electrical charge to the officer applying a control hold. In actuality, the ECW will only affect the subject onto whom the ECW barbs attach. This is a training issue PPB must address.
Finally, PPB-wide statistics raise serious concerns. Portland Police Bureau’s gross ECW use has remained fairly constant, even as PPB makes 25% fewer arrests over the past two years. See 2016 Q2 Force Data Summary Rep., at 18 (demonstrating that, while the number of custodies each quarter has dropped to 6,600 from a peak of 9,000 in the past two years, quarterly ECW deployments have fluctuated between 14 and 25). Thus, Members are using ECWs more frequently as a function of custodies. In addition, of the 26 cases in which Members deployed ECWs, 11 were used against individuals who were “tensing up, thrashing around, wiggling” (what PPB defines as “active resistance”). See Force Audit Rep. at 5.
Force Reporting
Whether reports are completed as soon as possible after the force incident occurs, but no later than the timeframes required in policy. Par. 74(c)(1).
Because the Force Audit Report assumed that “an FDCR . . . submitted one day after the event [could] still [fall] within the officer’s shift,” it erroneously applied the premise that all “FDCRs . . . submitted within one day of the force event [should be] coded as submitted on time.” Members are generally required to submit 910.00 reports, i.e., General Offense Reports, by the end of their shift. See PPB Directive 910.00, section 1.1; cf. Force Audit Rep. at 14-15. There is no reason to assume that submitting a report within one day of the event is timely.
The policy needs to be modified to more clearly require timely submission of reports, including the FDCR. Submission of all relevant information by the end of shift would be consistent with generally accepted practices. However, current policy imposes one deadline for submission of the General Offense Report, and no deadline for submission of the FDCR. Further, even the deadline for submission of the report is qualified. This is confusing.
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within one day of the use of force. Force Audit at 14. However, the reliability of the data appears questionable. The Force Audit Report assessed timeliness by relying on the dates that the respective officers manually entered on their FDCRs. We appreciate the effort that Members have put forth to implement this honor system, and the Force Audit Report’s assessment of report timeliness has some value, even if based upon the dates that officers are entering themselves. However, the unreliability of the current system is demonstrated by six reports dated prior to the use of force they were describing, and other reports dated so close in time to the call for service or use of force as to question the accuracy. The Force Audit Report acknowledges that an automatically generated time stamp is necessary to truly verify the time at which an FDCR is submitted. We agree. This solution would help simplify the lives of officers and auditors alike.
Five Officers audited failed to complete FDCRs after using force, two reports were submitted 2-10 days after the use of force, and two FDCRs were submitted 30 or more days after the use of force. The Force Audit Report does not discuss these incidents further. Portland Police Bureau needs to examine the causes for the late or non-submissions, and take steps to address them.
Whether reports use common everyday language to sufficiently describe the unique characteristics of the event. Par. 74(c)(ii).
Portland Police Bureau has clearly mobilized in an effort to more consistently, and in greater detail, report their use of force.
There is still significant room for improvement in this area, however. The audit found that the officer’s narrative was not a complete and accurate account of the force decision making in more than 22% of the cases reviewed by supervisors. See Force Audit Rep. at 10 (102 of 452 supervisor reviews should have identified these errors, but did not). Although PPB attributes this statistic to a coding issue related to descriptions of alternative force options, the problem actually seems more extensive: “the most common information missing from an officer’s narrative report was (1) documentation of witness statements, (2) description of other force options considered, and (3) description of the subject’s injuries or lack thereof.” Force Audit Report at 14. DOJ’s review confirmed that many reports included insufficient detail. For example, Members often substitute conclusions for key facts:
• A report said that the subject was “verbally hostile and non-cooperative” immediately before force was used. The report does not tell what the subject actually said.
• Another report attributed an “aggressive and agitated manner” to the subject, but offered no facts to support this conclusion.
• An officer said he “deescalated the situation,” but did not explain how.
This prevents supervisors from conducting an adequate review. The Advanced Academy training explained how to avoid doing exactly this. See comments to Par.
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69. Perhaps in-service training could include a refresher on this point.
Whether use of force reports include a decision point description. Par. 74(c)(iii).
The Force Inspector appears to have made a sincere attempt at auditing reports for whether they include a decision point description of events surrounding the use of force. However, the data points audited are insufficient to measure whether the officers included a decision-point description.
‘Decision-point analysis’ refers to analyzing each use of force from the inception of the police-citizen encounter rather than focusing narrowly on the ultimate use of force. See Police Assessment Resource Center, National Guidelines for Police Monitors (2009), available at http://www.parc.info/national-guidelines-for-policemonitors/. “An officer-involved shooting, for example, is best analyzed from the moment police officers are dispatched. Each key strategic or tactical decision by the officers thereafter should be subject to thorough review in which alternatives are considered.” Id. As but one paradigm, police-citizen encounters can be broken down into four phases:
Violent police-citizen confrontations are usually initiated by a direct observation or a summoning by radio by another police officer or by a citizen. In response to this initial information, the officer makes preliminary decisions, then confronts the citizen or citizens of concern in the transaction, and finally engages in a direct exchange of information, usually verbal, that leads more or less directly to the violence. For purposes of analysis, it is convenient to think of the transaction in four phases: anticipation, entry, information exchange, and the final decision that leads to an act of violence.
Arnold Binder & Peter Scharf, The Violent Police-Citizen Encounter, 452 Annals Am. Acad. Pol. & Soc. Sci. 111, 116 (Nov. 1980). Each phase is subject to separate analysis.
By contrast, “The [Force Inspector’s] audit methodology collects two data points at the officer level designed to measure a decision point description of the force decision making[:] (1) documentation of the subject’s resistance prior to the application of force and (2) documentation of alternative force options considered.” These two data points relate to the final decision to use force. By the Force Inspector limiting his assessment to these two data points, he excludes what Binder and Scharf call the anticipation, entry, and information exchange phases of the encounter.
Whether reports describe suspect injuries, complaint of injury, or lack of injury. Par. 74(c)(v).
The Force Audit Report does a very good job of breaking out the number of force reports that document injuries, complaint of injury, lack of injury, and, importantly, the number of reports that were silent as to injuries. Portland Police Bureau’s thorough review brought to light a specific outcome: even where officers noted the
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subject’s injury or lack thereof in the FDCR, they often did not include this information in the narrative portion of the report (as would seem to be necessary to comply with Subparagraph 74(c)(v)). This outcome demonstrates for PPB the pitfalls of requiring Members to submit different kinds of reports for different uses of force, each on different deadlines. Portland Police Bureau can simplify this process for Members and improve the data it receives.
The Reason for Initial Police Presence. Par. 74(c)(vi).
The Force Audit Report found that only four of the 113 involved Members’ reports audited neglected to include the reason for the initial police presence. The Report found that all Sergeants audited included this information.
Whether reports included a description of the level of resistance encountered. Par. 74(c)(vii).
Portland Police Bureau’s audit found that, universally, Officers adequately reported the level of resistance encountered, and that supervisors almost always did the same. See Force Audit Rep. at 11.
Description of why de-escalation techniques were not used or whether they were effective. Par. 74(c)(viii).
The Force Audit Report noted that in 23% of cases, Officers did not claim to use de-escalation techniques, Force Audit Rep. at 3, but the Report does not discuss why de-escalation techniques were not used in those cases. The Report also does not analyze whether de-escalation was effective when used.
Whether the individual was known to be mentally ill or in mental health crisis. Par. 74(c)(ix).
The Force Audit Report shares that some Members “indicated knowledge” of a subject’s mental illness prior to use of force, Force Audit Rep. at 19, but the audit does not appear to have analyzed whether the Members who did not so indicate actually knew of the subject’s mental illness.
Whether the reports include a description of force an officer observes another officer apply. Par. 74(c)(x).
The Force Audit Report’s presentation of this issue was confusing. The Report says that PPB audited “209 officer-subject interactions, with 224 force options applied.” Even were we to accept these figures as accurate,6 it is not clear from the statistics presented that PPB analyzed every report to check for observations. Twenty-six of the 209 officer-subject interactions involved officers working alone. See Force Audit Rep. at 13. That leaves 183 Officer-subject interactions involving multiple Officers. If we understand Officer-subject interaction to refer to a use of force, it is unclear why PPB should not expect 183 reports from the Officers
6 As noted elsewhere, it appears that this number does not accurately reflect PPB’s actual use of force during the quarter.
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involved. Instead, PPB only cites 134 remaining reports at issue: 126 where Officers included observations, and 8 where they did not. See id.
Even were we to accept PPB’s representation that eight Members neglected to report a use of force by another Member, that raises the question of what corrective action PPB took. The Report needs to speak to this.
Whether reports demonstrate officers’ diligent efforts to document witness observations and explain when circumstances prevent them from identifying witnesses, and include identifying information for anyone who refuses. Par. 74(c)(xi).
In 27 of 113 cases, the investigating Sergeant included no contact information for a witness who declined to provide a statement. See Force Audit Rep. at 13. This leaves room for improvement.

Technical Assistance

PPB should view the audit and Force Audit Report as serving two functions. First, they can provide PPB command staff with information critical to PPB’s force management, including information about Members’ use of force and the reporting and review systems. Second, the Force Audit Report can also demonstrate progress towards compliance. The Report should be designed with these two purposes in mind, and messaged accordingly. If information in the Report is not helping command staff manage force, and is not relevant to PPB’s compliance status, PPB may be well served to question the value of including such information.

Portland Police Bureau should be asking involved Members to report (a) whether mental health information was available; (b) if so, what information; (c) whether the information played a role in force decision making; and (c) if so, what role it played.

Portland Police Bureau’s review of the force used against individuals who were “tensing up, thrashing around, or wiggling” seems to have been based upon the false assumption that this constitutes “active,” rather than “passive,” resistance. PPB needs to renew its review of these cases from Q1.

For Technical Assistance related to ECW (Taser) usage, please see our comments associated with Paragraph 68.

We agree with the Force Audit Report’s conclusion that PPB would benefit from an automatically generated time stamp to verify the time at which an FDCR is submitted.

In addition, each level of the chain of command should be closely reviewing reports, including the time at which reports are submitted. When discrepancies are discovered, corrective action should be taken. Supervisors should not wait for the audit to identify untimely reports.

Portland Police Bureau should ensure that its training adequately teaches all of the information that officers and supervisors must include in their reports. When the information included in a report is inadequate or missing, PPB should take

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corrective action and document it.
Portland Police Bureau’s decision-point analysis needs to capture all of the phases of the police-citizen encounter. (And, as previously mentioned, PPB should instruct its Members via policy and training to include the necessary information in reports.)
As discussed above, PPB should modify the use of force policy to require a single report with all of the requisite data for every type of use of force.

75. In consultation with the COCL, the Inspector shall audit force reports and Directive 940.00 investigations to determine whether supervisors consistently:
a. Complete a Supervisor’s After Action Report within 72 hours of notification;
b. Review all use of force reports to ensure they include the information required by this Agreement and PPB policy;
c. Evaluate the weight of the evidence;
d. Use a “decision-point” approach to analyze each use of force;
e. Determine whether the officer’s actions appear consistent with PPB policy, this Agreement, and best practices;
f. Determine whether there was legal justification for the original stop and/or detention;
g. Assess the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options;
h. Determine whether additional training or counseling is warranted;
i. Implement corrective action whenever there are material omissions or inaccuracies in the officers’ use of force report, and for failing to report a use of force, whether applied or observed;
j. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, or poor tactical decisions in EIS;
k. Notify PSD and the shift supervisor of every incident involving an officer’s Serious Use of Force, and any Use of Force that could appear to a reasonable supervisor to constitute misconduct; and
l. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear to a supervisor that an officer engaged in criminal conduct.

Status

Partial Compliance—Ongoing Obligation

Analysis

Whether After Action Reports are being completed within 72 hours. Par. 75(a).
According to the Force Audit Report, “Three of 113 AARs were not completed within the required 72-hour period. The audit found that 2 of the 3 overdue AARs included an explanation and that the delay was approved.” This is a helpful starting
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point. However, the Settlement Agreement imposes a strict requirement that AARs be completed within 72 hours, and does not provide for “approved” delays beyond this window. Obviously, more explanation of what PPB means is necessary.
Whether use of force reports include the requisite information. Par. 75(b).
The audit revealed grave concerns about the completeness of officers’ reports. Members did not completely and accurately account for the force decision making in more than 22% of the cases reviewed by supervisors. See Force Audit Rep. at 10. Five of 209 involved officers failed to complete an FDCR, and supervisors did not take note. See Force Audit Rep. at 16. The investigating supervisor failed to upload supporting photographs and/or videos to the database in twelve of 113 cases audited, and these failures were rarely caught. See id. The investigating sergeant did not request a statement from the subject in 13 of 113 force cases audited. Id. The force audit identified “20 . . . cases [in which] witness observations were not documented, and supervisors failed to explain the circumstances that prevented them from identifying witnesses.” Id. at 13. That is, almost one in five investigations did not disclose whether witnesses to a use of force existed or not. The Force Audit Report does not share how many cases suffered from more than one such infirmity. Thus, the Report leaves open the possibility that as many as 50 of the 113 force cases audited lacked information fundamental to the investigation.
Weight of the Evidence. Par. 75(c).
Although the Force Audit Report cites the number of cases in which supervisors at each level considered the weight of the evidence in reaching their decision, it does not describe its criteria for reaching this determination. More detail is necessary about how PPB made this assessment.
Per the Force Audit Report, “[T]he Sergeant did not consider the weight of the evidence in 8 of 113 cases reviewed, the Lieutenant in 13 of 113 cases reviewed, the RU Manager in 11 of 113 cases reviewed, and the CHO in 10 of the 113 cases reviewed.” Taken literally, this means that at least one in every 15 force incidents did not receive proper review. In conjunction with the Force Audit Report’s findings concerning omitted evidence, this delivers a clear message that additional steps are necessary to ensure the integrity of PPB’s supervisory force reviews.
Use of a “decision-point” approach to analyze each use of force. Par. 75(d).
“The [Force Inspector’s] audit methodology collects two data points at the officer level designed to measure a decision point description of the force decision making[:] (1) documentation of the subject’s resistance prior to the application of force and (2) documentation of alternative force options considered.” These two limited data points fail to capture most of the phases of any given police-citizen encounter, as discussed above in relation to subparagraph 74(c)(iii). PPB will need to reassess its methodology for assessing subparagraph 75(d).
The auditors are not the only PPB Members confused about decision-point analysis. Supervisors make the statement that a “decision point analysis” was conducted, but, in our visit to PPB in August, several supervisors struggled to describe what the
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term means or how such an analysis is conducted.
Consistency with PPB policy, the Settlement Agreement, and best practices. Par. 75(e).
Given the number of reports that lacked necessary documentation, witness accounts, or other critical information, we cannot agree with the finding that all but a handful of officers’ conduct comported with policy, the Settlement Agreement, and best practices. See Force Audit Rep. at 15. If, as the audit says, supervisors made this finding notwithstanding the absence of information critical to such a determination, this raises questions about the integrity of the review process.
Whether there was legal justification for the original stop and/or detention. Par. 75(f).
The Force Audit Report states that supervisors found justification for the stop or detention that preceded use of force in 92% of cases – but does not say what happened in the other 8% of cases. See Force Audit Rep. at 13. The reader could reasonably interpret the Report as stating that eight percent of the stops or detentions in which force was used had no legal basis. The Report simply cannot be silent on these issues.
The Force Audit Report anticipates changes to “guidance” in order to address this last problem. It would be helpful to know if the Report is referring to changes to policy, training, or both.
Assess the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options. Par. 75(g).
It is not clear from the Force Audit Report that supervisors consistently assessed incidents for tactical and training implications. The Force Audit Report said that a supervisor had a tactical and/or training concern in 30% of cases, see Force Audit Rep. at 7, but does not share what assessment supervisors made in the other 70% of cases.
There is reason for close scrutiny. DOJ review found that supervisors did not identify all of the actual policy, training, or tactical issues that arose from officers’ conduct. For example, several supervisors read into the ECW policy a non-existent exception to the 5-second deployment rule. See comments to paragraph 68.
Further, officers may not be supplying all of the information supervisors need to make this determination. In addition to other deficiencies, the audit found that only 30% of officer narratives documented force options considered besides the one used. See Force Audit Rep. at 11 (62 of the 209 officer narratives audited contained such analysis).
The Force Audit Report states that no supervisors found that force may have been avoided through de-escalation. See Force Audit Rep. at 3. This conveys relevant information to PPB command staff. PPB should also share whether any supervisors
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neglected to review the need for de-escalation.
Determine whether additional training or counseling is warranted. Par. 75(h).
Although supervisors raised tactical and training concerns in response to some cases, the Force Audit Report does not share whether this translated into additional training or counseling.
Whether corrective action was implemented for reporting omissions or inaccuracies, or failing to report a use of force. Par. 75(i).
The Force Inspector undertook this review, and found as follows: “On average, supervisors failed to take corrective action when there were material omissions or inaccuracies with officers’ reports 86% of the time.” See Force Audit Rep. at 21. The Force Inspector recommends revising the reporting directive and training for supervisors, in order to better explain this point.
Five officers failed to complete FDCRs for their use of force, but PPB’s audit found that no supervisor reported taking corrective action.
Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, or poor tactical decisions in EIS. Par. 75(j).
Rarely did supervisors use EIS to document their discussion of policy or training deficiencies or poor tactical decisions with officers. See, e.g., Force Audit Rep. at 21 (finding that, when a training deficiency, policy deficiency, or poor tactical decision was identified for supervisors, the EIS entry contained the information in 8 of the 330 EIS entries audited).
Whether supervisors notify designated personnel of every serious use of force, and any use of force that could appear to constitute misconduct. Par. 75(k).
The Force Audit Report states that all nine serious uses of force were referred to the Professional Standards Division. See Force Audit Rep. at 20.
Evidence of misconduct triggers a requirement that supervisors report the matter to Professional Standards Division (“PSD”) and other designated entities, under subparagraphs 75(k) and 77(g). Auditing to ensure compliance with these subparagraphs must begin by determining in which cases evidence of misconduct surfaced, and then looking at what happened in those cases.
It is difficult to decipher whether PPB took the first step. The Force Audit Report cites a total number of cases that required PSD notification, but does not say how many of those cases included misconduct. See Force Audit Rep. at 20. It is not clear that the Force Inspector independently reviewed each case for evidence of misconduct. PPB will need to clarify these points in future reports.
Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear that an officer engaged in criminal conduct. Par. 75(l).
Although they employ slightly different wording, subparagraphs 75(l) and 77(f) require that PPB supervisors in the chain-of-command notify certain entities within PPB whenever the investigation evidences criminal conduct. (Subparagraph 77(e)
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also requires that PPB suspend the use of force investigation when such evidence surfaces.) Auditing to ensure compliance with this subparagraph must begin by determining in which cases evidence of criminal conduct surfaced, and then looking at what happened in those cases. The Force Audit Report skips the first step. The Force Inspector does not independently review each case for evidence of criminal conduct. Instead, it looks only at the set of cases in which supervisors notified other entities, and asks whether criminal conduct was at issue. See Force Audit Rep. at 20. This is insufficient.

Technical Assistance

We agree with the Force Audit Report’s repeated recommendation that PPB must revise its reporting directive and provide training. See, e.g., Force Audit Rep. at 16, 21. PPB must urgently revise its policies to capture the requirements of the Settlement Agreement and best practices, as Members should be looking to a single, sufficiently directive source (i.e., policy) for guidance on their actions. As discussed elsewhere herein, PPB has not accomplished this yet. The paragraph 72 checklist should be amended to capture all requirements that investigating supervisors must meet, and appended to the policy so that supervisors know that it is mandatory.

Subjects of PPB Members’ force often refused to give a statement or they responded with negligible factual details. PPB will inevitably receive some such responses. Notwithstanding, it may help for the investigating supervisor to explain to subjects that her/his role is to investigate the officers’ conduct, and that the subject can assist in that effort.

PPB policy and training must provide supervisors with sufficient guidance so that they will weigh the evidence according to the terms of the Settlement Agreement and document their determination.

PPB should take care not to limit “misconduct” to violations of the Graham standard, as it does in writing subparagraph 75(k) into policy. Members can engage in misconduct during a given encounter, independent of the reasonableness of the use of force.

Auditing supervisors’ performance may require the Force Inspector to independently review the cases in order to verify that the supervisor did not miss anything.

76. In consultation with the COCL, the Inspector shall conduct a quarterly analysis of force data and supervisors’ Directive 940.00 reports designed to:
a. Determine if significant trends exist;
b. Determine if there is variation in force practice away from PPB policy in any unit;
c. Determine if any officer, PPB unit, or group of officers is using force differently or at a different rate than others, determine the reason for any difference and correct or duplicate elsewhere, as appropriate;
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d. Identify and correct deficiencies revealed by the analysis; and e. Document the Inspector’s findings in an annual public report.

Status Analysis

Partial Compliance—Ongoing Obligation
Portland Police Bureau encloses with its supporting documents in response to paragraph 76 each quarter a copy of its “Force Data Summary Report.” With its 2016 Q2 quarterly report, PPB also enclosed a copy of its Force Audit Report, Q1 2016.
Force Data Summary Report
The Force Data Summary Report includes:
• Breakdowns of use of force and arrests by demographic of the subject, precinct, shift, type of force used, and nature of the call for service, among others;
• Comparisons between the incidence of each type of force and the number of custodies PPB executed; and the total number of “FDCR-level” uses of force;
• Comparisons between the incidence of each type of force and the total number of “FDCR-level” uses of force;
• A chart of the gross number of uses of each type of force, chronologically quarter by quarter; and
• A separate section on “heat mapping” that shows the number of uses of force during each shift at each of the three precincts.
Portland Police Bureau shared with DOJ and the COCL during a meeting in August 2016 the reasons it produces the Force Data Summary Report: members of the public have expressed appreciation to PPB for regularly sharing these data, and it informs Members of statistics in other precincts and Bureau wide. Meanwhile, compiling the data and producing the report impose a relatively modest burden on PPB’s Crime Analysts. We appreciate the value to the public and PPB in producing the Force Data Summary Report, and encourage PPB to continue to do so. Recommendations for improving the utility of the Force Data Summary Report are included herein.
However, as PPB acknowledged during our meetings, the contents of the Force Data Summary Report do not map neatly onto the requirements of paragraph 76. Paragraph 76 requires, inter alia, that PPB identify trends; units that use force away from policy; units or groups of officers that use force differently or at different rates than others; and deficiencies revealed by the analysis. The Force Data Summary Report largely focuses on Bureau-wide findings, plus “heat mapping” that breaks force down by shift and precinct. It does not identify units or groups of officers using force differently or away from policy, and does not share deficiencies in Members’ use of force. As described in the below technical assistance, the

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analyses in the report could conform more closely to generally accepted practices, yield the trends required by the Agreement, and at the same time increase the value for PPB command staff seeking to manage the Bureau’s use of force.
The Force Data Summary Report produces a few statistics relevant to Settlement Agreement compliance. First, the gross number of Taser uses by PPB Members has remained largely constant over several years, notwithstanding a 25% drop in the number of custodies. Second, five individuals were subjected to 3 or more Taser applications during a single encounter in Q2. Third, individuals in mental health crisis constituted eleven of the twenty subjects to whom Tasers were applied in Q2. Each of these findings is worthy of closer analysis.
Force Audit Report
The Force Audit Report, produced for the first time with PPB’s 2016 Q2 report, begins to address some of the requirements of paragraph 76. As stated above, we appreciate the work at all levels that formed the basis for the Force Audit Report. The Report includes a number of statistics from the quarter. Further analysis of these statistics may lead to reliable trends or variations in the use of force.
The Force Audit Report brought to light some patterns that will help PPB manage force going forward. To cite a few examples:
• Everyone in the force reporting system, from involved Members to the Chief, would benefit from a system to time-stamp reports with the actual time they are submitted.
• Fifty-two of 209 Members involved in uses of force in Q1 reported mental health information available to them at the time. See Force Audit Rep. at 17. But only 27 FDCRs had a check mark in the box for “Officer had Prior Knowledge of Subject's Mental Health History.” Id. Clearly, the box on the FDCR is not serving the purpose that PPB hopes. The Report recommends modifying the language on the FDCR and additional training.
• Supervisors are not taking corrective action even where they identify deficiencies. See Force Audit Rep. at 21 (“On average, supervisors failed to take corrective action when there were material omissions or inaccuracies with officers’ reports 86% of the time.”).
• Even if supervisors are discussing policy or training deficiencies or poor tactical decisions with Members, EIS does not reflect that. See comments to subparagraph 75(g).
As to some of the Report’s other findings, more analysis is required to determine what, if anything, the statistics means for force management. For example, the Force Audit Report says, “East Precinct used the takedown force option less than the other precincts and used the hands/feet (strikes/kicks) force option more than any other precinct/division – almost 3 times more frequently than any other precinct/division.” See Force Audit Rep., Q1 2016 (January - March), at 3. As PPB notes, the Bureau must undertake further study of the uses of force that give
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rise to statistics like this. See Force Audit Rep. at 3. Portland Police Bureau will want to know if some East Precinct Members or units use strikes more often than others. Portland Police Bureau will want to know more about the resistance East Precinct officers faced in this class of cases. Portland Police Bureau will also want the facts known by the Members at the time they used strikes on a subject. Portland Police Bureau must undertake these second order analyses in order to determine whether the trend is significant, whether East Precinct Members are using force differently (or, instead, are just faced with different situations); whether the Members use of force deviates from policy; and whether any deficiencies exist.
Many of the Report’s farthest-reaching conclusions are subject to question, however. For example, the Force Audit Report found that “officers consistently chose force options reasonably calculated to establish or maintain control with the least amount of appropriate force” and “[t]he force options chosen by the officers were consistent with training and policy.” See Force Audit Rep. at 4. However, PPB does not cite data that would support these conclusions, and other evidence in the Report tends to call it into question. For example:
• In 24 cases, at least one chain-of-command reviewer neglected to render an opinion on whether the involved Member chose the appropriate force option. Id. at 6. It seems counterintuitive that the Force Inspector found that Members were choosing the appropriate option “consistently,” even without the benefit of chain-of-command opinions in nearly one-quarter of uses of force.
• The Force Audit Report cites twelve cases in which Members pointed firearms at subjects who were either passive or were “tensing up, thrashing, or wiggling.” See Force Audit Rep. at 5. This is a use of force that could have deadly consequences, used against individuals who reportedly exhibited little resistance. Portland Police Bureau justifies these uses of force because (a) they were “high risk traffic stops,” Id. at 4-5, and/or (b) the subject passively resisting was “impeding a lawful objective,” Id. at 4. Portland Police Bureau presents no facts to substantiate either claim or clarify its usage of these terms. Moreover, the Settlement Agreement does not give PPB per se authorization to point firearms at individuals just because their passive resistance “impedes a lawful objective.” It does, however, require that use of force be objectively reasonable.
The Force Audit Report claims that officers’ FDCRs and narrative reports were “comprehensive,” see Force Audit Rep. at 4, but many case files lacked critical pieces of information that could corroborate or refute the officers’ accounts. For example, 10 FDCRs and 73 narrative reports failed to discuss injury to the subject or lack thereof. Id. at 5. (The Force Audit Report also mentions two subjects who sustained broken bones during encounters with PPB Members, but does not discuss these cases in any detail.) Also Taser download reports were missing from 5 of the 22 Taser cases in Q1. See id. at 8. Review of specific cases also raises doubts about PPB’s broad conclusions above. For example, in one case, an officer
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deployed his ECW for “a continuous seven seconds.” The officer conceded he “held the trigger down as the Taser did not have the immediate effect . . . [that] he simply held down the trigger until the subject was not a threat.” (The subject was reportedly large and quite violent.) PPB policy requires re-evaluation after each five-second ECW cycle or fraction thereof. The officer’s conduct clearly violated policy; his supervisors approved his actions. We identified other, similar cases.

Technical Assistance

Force Data Summary Report
• As described elsewhere herein, PPB should focus on assessing members’ “use of force” – rather than “FDCR-level force,” “FDCR Force,” “Force Event,” “Applications of Force,” or other terms used in the Force Data Summary that are not defined in the Settlement Agreement (and do not necessarily promote better force management). Using so many different terms to refer in different ways to uses of force by PPB Members risks obscuring, rather than clarifying, the information in the Force Data Summary Report’s tables, graphs, and narrative sections. To the extent that the terms listed above reflect current PPB policy, PPB will need to modify its policies in this area.

• As a general principle, if PPB is excluding one or more categories of “force” as the Settlement Agreement defines that term when producing these data, many critical statistics may be rendered unreliable. For example, it appears that PPB excludes control holds that do not result in injury from the entire Force Data Summary Report, notwithstanding that such holds may constitute “force.”

• In comparing the incidence of use of force to PPB activities more generally, the best denominator that PPB has used thus far is “custodies,” as the 2016 Q2 Force Data Summary Report defines that term. Use of force as a function of total “calls for service” is not a helpful statistic, as many calls for service have or should have a very low probability of ever escalating to a situation where force is required.

• It was not immediately clear to DOJ what value PPB derives from comparing each type of force (control holds, takedowns, etc.) to total applications of force in a graph. The parties may benefit from discussing these graphs before PPB includes them in the next report.

• The graph displaying number of uses of force by day and shift for each precinct (the “heat maps,” as the COCL has described them) has value. PPB must drill deeper, however, to units and groups of officers who are using force differently (including use of force inconsistent with policy).

• In several cases, the Force Data Summary Report includes facts that seem to require more context to understand. For example, the heat map shows increased use of force on weekend nights in Central Precinct compared to other shifts at that precinct. It would be helpful to know whether the

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number of visitors to the Precinct peaks at these times, whether Members are more likely to be faced with an armed subject at these times, and whether the nature of the crimes reported and committed bears distinctive characteristics at these times, among other contextual factors. • The Report generally shares little about the resistance Members faced in using force. The Force Audit Report could make additional inquiries that would address this requirement. For example, pages four and five of the Report recite which types of force were used most prevalently against which levels of resistance. This provides little guidance about whether the force was appropriate. Moreover, the Report provides almost no context by which to judge whether the type of force was necessary to accomplish some objective: whether facts justified the use of a higher level of force than ordinarily associated with the subject’s actions,7 or conversely whether some consideration suggested less force should be used. • The ‘Perspectives’ subsection under each section devoted to a type of force seems to repeat much of the data found in each corresponding ‘Force Charts’ section.
Force Audit Report (as it relates to paragraph 76)
In the Force Audit Report, PPB draws a number of comparisons between different numerical figures. The value of some of these was not immediately clear. For example, we did not understand the value of presenting:
• The overall number of force applications per force case, see Force Audit Rep. 2016 Q1, at 2;
• The overall number of force options utilized per officer, id.; • The ratio of the number of force applications to the number of force cases
audited, for each of the three patrol precincts, id. at 3; • The frequency with which subjects exhibited each of PPB’s categories of
resistance, id. at 4; • The frequency with which subjects exhibited a category of resistance when
multiple force applications were used, id.; • The most frequent type of resistance encountered when each type of force
was used – that is, the narrative portion on pages five and six that repeats the information in the table, id. at 5. (The table on page five is valuable, however.)
It may help to discuss these further.
7 Although the Force Audit Report refers to three incidents in which officers pointed firearms at subjects who only passively resisted as “high risk traffic stops” this generalization does not provide much detail that would help understand the facts known to the officers at the time.
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In addition: • As in the Force Data Summary Report, PPB acknowledges at various points of the Force Audit Report that its figures do not capture all force used by PPB Members. See, e.g., Force Audit Rep. at 2 (a Member pointing a firearm at a suspect “was audited only when used with another AAR generating force option (takedown, for example)”). Clearly, PPB is underreporting its use of force as a result. • The use of jargon such as “high risk traffic stop” may hold specific meaning for PPB. However, the lawfulness of use of force is, at its core, a factdependent question, and thus the mere invocation of jargon does little to address either the lawfulness or consistency with policy of a specific use of force. We discourage the practice of using such terms where, instead, close analysis of the facts is called for. • As discussed above, identifying the items called for by paragraph 76 will require additional analysis of the types of data PPB collected and presented in the Q1 Report.
77. In consultation with the COCL, the Inspector shall audit the adequacy of chain of command reviews of After Action Reports using the following performance standards to ensure that all supervisors in the chain of command:
a. Review Directive 940.00 findings using a preponderance of the evidence standard; b. Review Directive 940.00 reports to ensure completeness and order additional investigation, when necessary; c. Modify findings as appropriate and document modifications; d. Order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings and counsel the investigator; e. Document any training deficiencies, policy deficiencies, or poor tactical decisions, ensure a supervisor discusses poor tactical decisions with the officer and ensure the discussion is documented in EIS; f. Suspend an investigation immediately and notify the branch Assistant Chief, the Director of PSD, and the Detectives Division whenever the investigating supervisor, shift commander or Division commander finds evidence of apparent criminal conduct by a PPB officer; and g. Reports a matter to PSD for review and investigation whenever an investigating supervisor, shift commander or precinct commander finds evidence of apparent misconduct by a PPB officer or employee.
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Status Analysis

Partial Compliance-Ongoing Obligation
Application of the preponderance standard. Par. 77(a).
The Force Audit Report provides the percentage of cases where supervisors “measured … to determine whether the evidence supporting the officer’s account was greater than any alternative account.” See Force Audit Rep. at 14. The Report does not make clear how it determined that supervisors undertook this measurement, nor whether their method of measuring was sound. More detail is necessary about how PPB purports to make this assessment.
Even were we to accept the Report’s outcomes as accurate, the Report found that in only 88% of cases did command staff measure whether the evidence supporting the officer’s account was greater than any alternative account. Literally, this means that in one of every nine cases, PPB cannot say whether an alternative finding should have been reached, based upon the evidence. Clearly, additional policy guidance and training are necessary, as recommended by the Force Audit Report (and as discussed elsewhere herein). A single, clearly-structured force report template may also help bring this number up.
Completeness of 940.00 reports and ordering additional investigation and whether additional investigations were ordered when it would assist. Par. 77(b).
Subparagraph 77(b) requires PPB audits to ensure that supervisors review Sergeants’ 940.00 reports, ensure completeness, and order additional investigation when necessary. Likewise, subparagraph 77(d) requires that PPB audit to ensure that supervisors “[o]rder additional investigation when it appears that there is additional relevant evidence that may assist[,] . . . and counsel the investigator.” Of the 452 supervisory reviews (presumably, the sum of 113 reviews each by Sergeants, Lieutenants, Captains, and the Chief’s Office), the Force Audit Report found that 105 should have requested additional investigation, and did not. More than one in four force investigations was incomplete, and thus at least one in four investigating Sergeants is not receiving the necessary counseling. This appears to be an extraordinarily high number, and may reflect Bureau policy and training deficiencies the Report mentions.
A chart on page 22 of the Force Audit Report breaks down the 105 flagged supervisor reviews, it appears, by the rank of the supervisor and the unit. Supervisors neglecting to request additional information when they should “was a common deficiency across all levels of command and units, but seemed slightly elevated at North precinct[,]” according to the Report. The Report lists the types of necessary information that supervisors at North Precinct failed to request; these included failure to photograph the subject (2 cases), failure to get a statement from the subject or witnesses (3), and failure to require witness officer statements (2). This information is helpful: it gives the reader some sense of PPB’s criteria for measuring completeness of reports, and highlights areas that may require
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improvement.
PPB needs to describe its findings in greater detail. PPB should list the criteria by which completeness is assessed. In addition, the deficiency was common across all levels of command and units, but the Report only provides details about North Precinct.
More analysis is also necessary here. The Report should make clear how the additional information is necessary or could assist in resolving inconsistencies or improve the reliability or credibility of the findings. Perhaps a discussion of representative cases would be helpful; PPB discussed individual cases in a different context on page four, for example. In addition, the Report should recommend more specific solutions and provide a basis for these proposals; although we share PPB’s confidence that its supervisory personnel are capable of improving, the Bureau will only achieve the “clearer process” that the Report calls for if the Force Inspector explains how the process can be clarified.
One discreet point requires clarification: in some instances, it appears supervisors pointed out the need for additional investigation, while their superiors in the chain of command either disagreed or overlooked the issue. For example, the Chief’s Office missed the need for additional evidence in ten cases from North Precinct, but the Lieutenants and Captains in North Precinct only missed nine and seven, respectively. This suggests that reports exist where a Lieutenant and/or Captain requested additional investigation, but the Chief’s Office (erroneously) did not share this view. Portland Police Bureau should describe why this might be.
Whether findings modified as appropriate, and modifications documented. Par. 77(c).
Subparagraph 77(c) asks that PPB audit to ensure that supervisors in the chain-ofcommand modify AAR findings “as appropriate” and document those modifications. The Force Audit Report counts the number of modifications that supervisors documented. See Force Audit Rep. at 22. The Report does not assess whether the modifications were appropriate, and it does not present a tally of necessary modifications that never took place. In the absence of such assessments, and in light of the Report’s findings that 12% of reviews did not assess the evidence according to a preponderance standard and 25% of supervisor reviews should have prompted additional information but did not, we are skeptical that findings are being modified as appropriate.
Whether additional investigations were ordered when it would assist. Par. 77(d).
See above.
Documentation of training deficiencies, policy deficiencies, and poor tactical decisions; Supervisory discussion of poor tactical decisions, and documentation in EIS. Par. 77(e).
The Force Audit Report gives some indication of what training, policy, or tactical issues are being identified. See, e.g., Force Audit Rep. at 7 (“Aside from the
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tactical or training issues categorized as ‘Other’, the most common tactical or training issue identified was failure to wait for/request cover (21 findings), followed by handcuffing (12 findings).”). We invite more discussion of these points, as they represent opportunities for the Chief to manage force and Members to refine their practices.
As noted above, those issues that were identified were rarely documented in EIS. See comments to subparagraph 75(g).
Whether supervisors suspended the investigation and notified the appropriate entities when evidence of apparent criminal conduct surfaced. Par. 77(f).
Portland Police Bureau did not make this assessment. See comments to subparagraph 75(l).
Report to PSD when evidence of misconduct surfaces. Par. 77(g).
It is not clear that PPB made this assessment. See comments to subparagraph 75(k).
Technical Each more senior supervisor in the chain of command should review Assistance documentation of a given use of force, and independently assess the reasonableness
of and necessity for the force used.
However, senior supervisors need not always restate all of the Sergeant’s findings or analyses. To the extent that the Lieutenant, Captain, or Assistant Chief’s findings and analyses are already captured by the Sergeant’s written assessment, the more senior supervisor can concisely describe his decision making process and concur with the findings and analysis below. Of course, where adequate review calls for a command-level supervisor to make alternative or additional findings, s/he should document such findings.

IV. TRAINING
78. All aspects of PPB training shall reflect and instill agency expectations that officers are committed to the constitutional rights of the individuals who have or are perceived to have mental illness whom they encounter, and employ strategies to build community partnerships to effectively increase public trust and safety. To achieve these outcomes, PPB shall implement the requirements below.

Status

Partial Compliance – improvement, ongoing obligation

Analysis

Portland Police Bureau does not include entries for paragraph 78 in its quarterly report. Portland Police Bureau did not produce documents in support of paragraph 78 compliance in its associated data production for its quarterly report. Given that the second sentence of this paragraph refers to the paragraphs that follow, the absence of PPB’s statement for paragraph 78 is understandable.
We note, however, that the first sentence does contain a substantive requirement—
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one with which PPB has made progress in the past year, as described in our assessment of paragraphs 79-87, below.
We agree with COCL that:
We interpret “All aspects of PPB training” to include ECIT, Advanced Academy, In-Service, and Supervisor In-Service. The available evidence suggests that PPB is making a genuine effort to improve these major training programs. We cannot provide a summative judgment on Par. 78 until we have documents indicating that “all aspects of PPB training” conform to the “requirements below.”
We will evaluate training progress in terms of both the implementation conditions described below and the achievement of outcomes listed in paragraph 78, namely, the constitutional treatment of individuals who have or are perceived to have mental illness, the building of community partnerships, the increase of public trust, and the increase of public safety.
See COCL Compliance Report, January through June 2016, at Par. 79.
As laid out in further detail below, we have informed our assessment of this and all other training provisions based on document review and direct observation of the training academy.
Technical In order to comply with paragraph 78, PPB must comply with all of Section IV. Assistance

79. The Training Division shall review and update PPB’s training plan annually. To inform these revisions, the Training Division shall conduct a needs assessment and modify this assessment annually, taking into consideration: (a) trends in hazards officers are encountering in performing their duties; (b) analysis of officer safety issues; (c) misconduct complaints; (d) problematic uses of force; (e) input from members at all levels of PPB; (f) input from the community; (g) concerns reflected in court decisions; (h) research reflecting best practices; (i) the latest in law enforcement trends; (j) individual precinct needs; and (k) any changes to Oregon or federal law or PPB policy.

Status

Substantial Compliance – significant improvement, ongoing obligation

Analysis

Portland Police Bureau has made significant progress in informing its training plan and collecting input from various sources, though additional work will be required as this process matures.
Portland Police Bureau completed a training needs assessment in September 2015, an evaluation of in-service training in July 2016, and a revised in-service training plan in September 2016. We agree with COCL’s most recent compliance report that: “PPB has made a serious effort to conduct the 2015 Training Needs Assessment in a manner consistent with accepted practices in the field of program
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evaluation. Available data were used to identify training needs and the report covers the major requirements of the Settlement Agreement as well as additional topics of training.” See COCL Compliance Report, January through June 2016, at Par. 79.
COCL recently produced a technical assistance statement to assist the City in coming into compliance with this provision. See TECHNICAL ASSISTANCE STATEMENT, Subject: Training Needs Assessment, Prepared by ROSENBAUM & WATSON, LLP, Compliance Officer and Community Liaisons (COCL), July 1, 2016, available at http://www.coclcoab.org/sites/default/files/COCL%20Training%20Needs%20Assessment%20TA %20Statement %20submitted%207.5.2016.pdf.
COCL acknowledges that prior to this technical assistance, it had not engaged in a “detailed discussion of the Training Needs Assessment.” Ibid. at 2. Thus, only recently has PPB had the benefit of COCL’s additional guidance on this provision.
Although COCL recommended in its technical assistance statement that PPB conduct citywide surveys for trends in “performance hazards” for Par. 79(a) (ibid. at 5), the Settlement Agreement does not require that effort. Rather, PPB’s after action reviews provide the agency data on current performance hazards and the Training Division solicited performance hazard information from interviews of precinct commanders. See DOJ: Training Division Status Update In-Service Training Needs Assessment, April - June 2016, dated July 28, 2016. In lieu of a separate survey, PPB could inform its training plan by outcomes of the Community Engagement and Outreach Plan (“CEO Plan”), once the City and COAB have brought that plan to fruition. See Settlement Pars. 141, 146.
Commendably, PPB met with its Training Advisory Council (“TAC”) to inform the Bureau’s training plan. See Par. 87 assessment, below. TAC serves as the community voice in PPB’s training plan. In June 2016, TAC provided specific recommendations on training. See “2016 TRAINING AND USE OF FORCE REPORT RECOMMENDATIONS,” Portland Police Bureau Training Advisory Council, June 14, 2016, available at https://www.portlandoregon.gov/police/article/581581. We agree with COCL’s assessment in its most recent quarterly report that PPB specifically should address the TAC recommendations in its Training Needs Assessment.
Also, commendably, PPB solicited assessment of training needs from reviews of allegations of misconduct by both Independent Police review (“IPR”) and PSD. See DOJ: Training Division Status Update In-Service Training Needs Assessment, April - June 2016, dated July 28, 2016. Portland Police Bureau’s solicitation of IPR’s and TAC’s input to its training is responsive to DOJ’s 2015 report card critique and technical assistance.
Portland Police Bureau’s Behavioral Health Unit (“BHU”) Advisory Committee also informed the training plan. See Par. 95 assessment, below.
Portland Police Bureau provided categorical data responsive to each subsection of
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Par. 79(a)-(k). See DOJ: Training Division Status Update In-Service Training Needs Assessment, April - June 2016, dated July 28, 2016. In addition to PPB’s written statements regarding actions taken to comply with Par. 79, other sources during our monitoring support PPB’s compliance:
• We directly observed in-service training with our expert consultant and COCL’s police practices consultant. We found many positive aspects and others in which to offer technical assistance. See United States v. City of Portland - Technical Assistance Letter Regarding In-Service Training, dated Feb. 26, 2016, available at https://www.justice.gov/crt/file/847051/download. While we observed PPB’s significant dedication to training, one area of serious concern was the training offered by an Assistant City Attorney. That session emphasized the City’s asserted defenses to problematic uses of force, rather than demonstrating compliance with Par. 79(d)’s direction to use problematic uses of force to inform training needs.
• One of PPB’s recently re-investigated force incidents reveals an effective feedback loop to inform training needs based on problematic uses of force, as envisioned in Par. 79(d). In our 2015 report card for Par. 121, we discussed at length allegation 2014-C-0265. Portland Police Bureau recently completed a re-investigation of that allegation, for which the investigation identified a failure to train in the particularized, individualized suspicion requirement for Terry stops. As an outgrowth of this more fulsome investigation, the reviewing supervisor provided a memo to the training division on the lack of a record of training on this basic constitutional requirement. See 2014-C-0265. While we critique the adequacy of the investigation and finding in that case (see Section VIII, below), we laud PPB’s use of an administrative investigation to identify a training need.
• Par. 79(h) requires that PPB research best practices for training. Following our provision of technical assistance in a February 26, 2016 letter, we engaged in follow-up discussions with PPB. We recommended that PPB employ a deescalation training scheme approved by the Court monitor in our Seattle Police matter. See United States v. City of Seattle, 2:12-cv-01282-JLR, D.E. 198-1, Filed 04/01/15. PPB’s Training Captain reported that PPB had already sought out and planned to use those very same materials. This is emblematic of PPB’s willingness to adopt best practices.
Lastly, after lengthy and detailed negotiations, DOJ recently approved a revised Policy 1500, which includes provisions that govern PPB’s training plan. DOJ and the City specifically considered and incorporated, where appropriate, COAB’s recommendations to Policy 1500.
Technical We will assess whether and how PPB responds to the TAC recommendations as we Assistance continue to monitor compliance with this provision.
The PPB’s Employee Information System (“EIS”), though not yet fully matured, also should inform future training plans.
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As before, as PPB further implements other provisions of the Settlement Agreement, PPB necessarily will have to revise its training assessment and training plan. Specifically, PPB and COCL have not yet brought the training audit to fruition. This audit will inform future iterations of the training plan.

80. Within 180 days of the Effective Date, PPB shall develop and implement a process that provides for the collection, analysis, and review of data regarding the effectiveness of training for the purpose of improving future instruction, course quality, and curriculum. These evaluations shall measure and document student satisfaction with the training received; student learning as a result of training; and the extent to which program graduates are applying the knowledge and skills acquired in training to their jobs. This audit shall be reported to the Training Division Manager and shall include student evaluations of the program and the instructor.

Status

Partial Compliance – significant improvement

Analysis

PPB has come far in its collection of data to assess training efficacy based on the Kirkpatrick Model (i.e., a four step analysis of reaction, learning, behavior, and results) though PPB still has more work to do.
Whereas we noted in last year’s report card that PPB had only presented plans for some survey tools, this year, PPB provided analysis of completed survey data for a number of its in-service training weeks. Thus, PPB has taken demonstrable steps toward data collection and analysis. However, we agree with COCL that “PPB’s current effort contains the necessary elements of an evaluation, though it lacks the methodological rigor we believe would make results and conclusions reliable.” See COCL Compliance Report, January through June 2016, at Par. 80.
We diverge from one significant COCL recommendation. COCL recommended that PPB incorporate pre-test measures to ensure officers are mastering course content. Id. While pre-tests may yield useful data, the Settlement Agreement does not require them. Moreover, pretests are not a standard practice for police academies nationally and would consume valuable, but limited, training time.
Based on our direct observation of PPB’s in-service training, we stated in our technical assistance letter:
Settlement Agreement paragraph 80 requires that PPB implement data collection and analysis regarding the effectiveness of training. Specifically, these data must include student satisfaction, learning, and application. PPB previously has asserted that it is applying the Kirkpatrick model for data collection, analysis, and improvement of training. However, we did not witness the necessary data collection to

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feed into this model.
For the observed in-service training, PPB did not use written, individually identifiable, competency-based quizzes of policy or tactics.8 For one class, PPB instructors gave an eight-question use-of-force policy quiz. However, the quizzes were anonymous. Theoretically, PPB could use the results to evaluate instructors, but not students. Similarly, PPB distributed an anonymous survey of the entire training. Strangely, though, this anonymous survey points out that it could be subject to a public records request. That admonition seems intended to discourage criticism. Such comments are not typical or appropriate for this type of survey research. [COCL similarly found that the public-records admonition is highly unusual in police research, but problematic for ensuring quality data. See COCL Compliance Report, January through June 2016, at Par. 79]. For some practicum instruction, PPB required that all class members successfully complete certain exercises, e.g., firearm qualification. For other exercises, however, PPB did not include any mechanisms or measures to assure or measure students’ understanding or competence. For example, PPB did not check whether most students properly applied tourniquets and therefore did not determine whether students learned the material. In previous reports, the COCL has recommended a more rigorous evaluation plan for training. We reiterate the importance of data collection and analysis of training.
See United States v. City of Portland - Technical Assistance Letter Regarding InService Training, dated Feb. 26, 2016, available at https://www.justice.gov/crt/file/847051/download.
Technical Portland Police Bureau should implement competency-based evaluations to Assistance determine student learning.
Once PPB develops more rigorous data, PPB must review those data and should apply its data analysis to a quality improvement loop.
Portland Police Bureau should consider data from the community in assessing “the extent to which program graduates are applying the knowledge and skills acquired in training to their jobs.” See Par. 80. In part, PPB could use the CEO Plan for this
8 In PPB’s documents produced in support of its quarterly reports, PPB asserted that this observation from our February 26, 2016 letter was its first notice that PPB should use competency-based evaluations. See Action Item 80 Learning Assessments 2nd Quarter: April June 2016. Actually, in our 2015 report card, we told PPB: “PPB should also assess efficacy of training through: competency-based testing at the completion of each course; utilizing the Inspector’s Audits FDCRs and 940s; utilizing community surveys; and outcomes assessment such as training needs identified in crisis situation reports, internal affairs reviews, or force review boards.” See Settlement Agreement Compliance Status Assessment Report –September 10, 2015, (emphasis added) available at https://www.justice.gov/crt/casedocument/file/771296/download.
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purpose. See Settlement Pars. 141, 146

81. PPB shall ensure that the Training Division is electronically tracking, maintaining, and reporting complete and accurate records of current curricula, lesson plans, training delivered, attendance records, and other training materials in a central, commonly accessible, and organized file system. Each officer’s immediate supervisor shall review the database for the officers under his/her command at least semi-annually.

Status

Partial Compliance – improvement

Analysis

The City has delayed PPB’s long-intended use of Learning Management System (“LMS”) software in place of PPB’s in-house Skills Manager program. LMS will electronically monitor training-related activities within PPB.
Portland Police Bureau reported that it has been attempting to procure LMS since the first quarter of 2015. More recently, PPB reported delays caused by the City’s unwillingness to procure the software, and then the City’s need to coordinate the software with a larger cloud services contract. See PPB Quarterly Report, Par. 81(a), August 15, 2016. LMS implementation was not set to begin until August 17, 2016. See Q2 Learning Management System Update Memo, August 8, 2016.
While PPB contended that its use of Skills Manager since 2005 met the obligations of paragraph 81, we disagreed in our 2015 assessment. Skills Manager did not track all trainings, particularly those provided outside of the academy at the unit level. Thus, the City’s delay in LMS has hindered its agency’s ability to comply with this provision.
Absent a fully functional LMS, PPB supervisors must rely on an incomplete training record to review their subordinates’ training records.
Commendably, PPB has attempted work-around fixes to track officers’ training. PPB readily admits that has encountered several problems in doing so. See PPB Quarterly Report, Par. 81(b), August 15, 2016. The PPB’s Snapshot program reports training by the year whereas the State’s DPSST reports compliance with 84hour requirement for a three-year period. Id. Portland Police Bureau also receives DPSST’s compliance reports until after the reporting period. Id. Accordingly, PPB’s Training Division is running reports on certification requirements for officers. Id. This effort has yielded reports listing officers whom have not met their annual in-service training requirements and PPB has acted to provide the necessary trainings. See email from LT Kraig McGlathery PPB Training Division, undated.
This work-around process, while productive, is not the same as the supervisory review of training records that the Settlement Agreement envisions. First, the Settlement Agreement does not limit the training review to only in-service training. Supervisors should review records for not only in-service training, but also any assignment-specific training officers should have, e.g., Special Emergency
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Reaction Team (“SERT”) or K-9. Second, this work-around removes the goal of having the supervisor who is responsible for his or her subordinates familiar with their training and training needs. This Settlement Agreement goal dovetails with the Settlement Agreement requirement that supervisors check their subordinates’ EIS entries. See Section VII, herein.
Technical PPB must bring its data management system to fruition, but should be careful to Assistance ensure that the system addresses all aspects required by this provision of the
Settlement Agreement.
As with COCL, “Upon complete implementation of the LMS, we will ask PPB for a technical demonstration to ensure that it adheres to the requirements of Par. 81.” See COCL Compliance Report, January through June 2016, at Par. 80.
Portland Police Bureau supervisors must assume the role of checking their subordinates’ training records. Supervisors’ role would not obviate the utility of Training Division’s review of in-service training for state certification criteria.

82. PPB shall report training delivered and received semi-annually to the Assistant Chief of Operations and, during the pendency of this Agreement, to DOJ.

Status

Substantial Compliance – ongoing obligation

Analysis

Commendably, PPB delivered nearly 17,000 hours of internal training and nearly 5,000 hours of external training to its officers in just the first half of 2016. See Course Attendance Summary Report, 2016 Course Attendance – Internal Courses January – June, July 11, 2016; Course Attendance Summary Report, 2016 Course Attendance - External Courses January – June, July 11, 2016. We agree with COCL that while PPB has achieved substantial compliance with this paragraph, the content of PPB’s training reports should adhere to the criteria we have laid out for paragraph 80 and the elements of evaluative training. See COCL Compliance Report, January through June 2016, at Par. 82

Technical To make this report more meaningful, PPB will have to bring to fruition its training Assistance management systems consistent with Paragraph 81, which should provide PPB
executives with more useful data on training utilization.

83. PPB shall institute guidelines to govern its selection of officers that serve as trainers and shall ensure that those officers do not have a history of using excessive force. The trainer selection guidelines shall prohibit the selection of officers who have been subject to disciplinary action based upon the use of force or mistreatment of people with mental illness within the three (3) preceding years, or twice in the preceding five (5) years, and will take into account if a civil judgment has been rendered against the City in the last five (5) years based on the officer’s use of force.
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Status

Substantial Compliance – ongoing obligation

Analysis

Commendably, PPB directly responded to our critique in our 2015 report card. Portland Police Bureau revised Standard Operating Procedure 1-19 - Training Division Instructor Selection Standards, moving the civil-judgment requirement from paragraph 83 of the Settlement Agreement to the standard list of criteria for consideration of instructor applicants. Portland Police Bureau also described in its 2016 Q1 report the application of the criteria from paragraph 83 to a candidate for a position at the Academy’s Armory.
We note, as did COCL, that PPB also demonstrated compliance with the prohibition on selecting as instructors any officer who has been subject to discipline for mistreatment of persons with mental illness, following the same process as ECIT and BHRT reviews (see Pars. 101 and 108). See COCL Compliance Report, January through June 2016, at Par. 83.

Technical Assistance

We agree with COCL that if PPB decides to hire a trainer involved in a relevant civil judgment, the training director should provide a justification and explanation as to why the officer is fit for service as a trainer and the civil judgment is not a disqualifying factor. See COCL Compliance Report, January through June 2016, at Par. 83.

84. All training that PPB provides shall conform to PPB’s current policies at the time of training. PPB shall train all officers on the Agreement’s requirements during the next in-service training scheduled.
a. With respect to patrol officers, PPB shall:
i. increase the use of role-playing scenarios and interactive exercises that illustrate proper use of force decision making, specifically including interactions with people who have or are perceived to have mental illness, including training officers on the importance and impact of ethical decision making and peer intervention;
ii. emphasize the use of integrated de-escalation techniques, when appropriate, that encourage officers to make arrests without using force;
iii. continue to provide training regarding an officer’s duty to procure medical care whenever a subject is injured during a force event, and enhance and revise training as necessary to ensure that PPB’s training in this regard is proactive and responsive to deficiencies identified by the Inspector, if any;
iv. continue to train on proactive problem solving and to utilize, when appropriate, disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, requesting specialized units, including CIT officers and mental health professionals, or delaying arrest;
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v. describe situations in which a force event could lead to potential civil or criminal liability; and
vi. continue to train officers to avoid using profanity, prohibit using derogatory/demeaning labels, and also avoiding terms not currently appropriate for person-center communication, such as the term “mentals,” in all work-related settings and communications, as well as when interacting with the public.
b. With respect to supervisors, provide additional training on how to:
i. conduct use of force investigations, including the supervisory investigatory responsibilities identified in Section III.A.3;
ii. evaluate officer performance as part of PPB’s annual performance evaluation system; and
iii. foster positive career development and impose appropriate disciplinary sanctions and non-disciplinary corrective action.

Status

Substantial Compliance – ongoing obligation

Analysis

PPB provided documentation evidencing that it provided training on the Settlement Agreement to new officers attending the Advanced Academy in April 2016. Likewise, we observed PPB’s in-service training in December 2015, which also included a teaching session concerning the Settlement Agreement.
COCL stated that it will assess the 2016 in-service training, now occurring, and later supervisor training to evaluate materials for topics related to the Settlement Agreement. See COCL Compliance Report, January through June 2016, at Par. 84.

Technical Assistance

We note that in speaking with officers about the ECIT program, some noted that they understood they only needed to take certain action because the Department of Justice made PPB do so. As the current Chief has stated correctly, PPB owns its own reform. We encourage PPB to emphasize that it is undertaking reform at the direction of its Chief, not the Department of Justice.

85. In consultation with the COCL, the Inspector shall audit the training program using the following performance standards to ensure that PPB does the following:
a. Conducts a comprehensive needs assessment annually; b. Creates a Training Strategic Plan annually; c. Within 180 days of the Effective Date, develops and implements a process for evaluation of the effectiveness of training; d. Maintains accurate records of Training delivered, including substance and attendance; e. Makes Training Records accessible to the Director of Services, Assistant Chief of Operations, and DOJ;
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f. Trains Officers, Supervisors, and Commanders on areas specific to their responsibilities; and
g. Ensures that sworn PPB members are provided a copy of all PPB directives and policies issued pursuant to this Agreement, and sign a statement acknowledging that they have received, read, and had an opportunity to ask questions about the directives and/or policies, within 30 days of the release of the policy.

Status

Partial Compliance – ongoing obligation

Analysis

Portland Police Bureau’s ability to comply with these audit provisions has been linked to COCL’s collaboration to construct an effective audit. COCL and PPB report that COCL agreed to provide PPB technical assistance concerning training evaluation as a prerequisite to the audit. See COCL Compliance Report, January through June 2016, at Par. 85; PPB 2016 Q1 and Q2 compliance report, at Par. 85. Accordingly, COCL issued technical assistance statements related to Training Needs Assessment (see Par. 79) and Training Evaluation (see Par. 80). COCL has not yet produced technical assistance in connection with paragraph 85(b), (e), and (g). See COCL Compliance Report, January through June 2016, at Par. 85.

Technical COCL and PPB must complete consultation regarding the audit and implement a Assistance usable tool.

86. In consultation with the COCL, the Inspector shall gather and present data and analysis on a quarterly basis regarding patterns and trends in officers’ uses of force to the Chief, the PPB Training Division, and to the Training Advisory Council. The Training Division and Training Advisory Council shall make written recommendations to the Chief regarding proposed changes in policy, training, and/or evaluations based on the data presented. The Inspector shall also, in coordination with the COCL and PSD, identify problematic use of force patterns and training deficiencies. The Chief’s Office shall assess all use of force patterns identified by the Training Division and/or Training Advisory Council and timely implement necessary remedial training to address deficiencies so identified.

Status

Partial Compliance – ongoing obligation

Analysis

As with the prior provision, PPB’s ability to comply has been linked to COCL’s collaboration to construct a model for effective data gathering and analysis. Portland Police Bureau’s Inspector reported waiting on the COCL for collaboration, which then delayed PPB’s compilation of longitudinal data. See PPB 2015 Q3 and Q4 compliance report, at Par. 86. This year, COCL consulted with PPB’s Inspector on the force report and PPB has implemented its force reporting to PPB’s training manager, Assistant Chief, and TAC. See PPB 2016 Q1 and Q2 compliance report, at Par. 86; see also Training Advisory Council Meeting Minutes, May 11th, 2016 (describing the Inspector’s presentation to TAC). COCL acknowledged that it must further consult with the Inspector, but also advised that the Inspector should present
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more force data to subsequent TAC meetings. See COCL Compliance Report, January through June 2016, at Par. 86.
Commendably, in June 2016, the community volunteers who comprise the TAC provided specific recommendations on training. See “2016 TRAINING AND USE OF FORCE REPORT RECOMMENDATIONS,” Portland Police Bureau Training Advisory Council, June 14, 2016, available at https://www.portlandoregon.gov/police/article/581581. See also Par. 79, above. We agree with COCL that TAC’s report was thoughtful and informative. TAC’s report provided recommendations concerning coaching of PPB instructors, evaluation of training, and force reporting. Id. We do not reach conclusions, however, on the TAC’s recommendations.
We have not, as yet, received from PPB an established process for the Chief’s office to assess force patterns and implement remedies. COCL and PPB must complete their consultation on data analysis to bring this later step to fruition.
Technical COCL must complete its collaboration with PPB’s Inspector to assist PPB with Assistance coming into compliance.
PPB should respond to each item in TAC’s recommendations.
Once PPB completes its COCL consultation, we expect PPB to provide demonstrable evidence of data analysis for patterns of uses of force, followed by remedial training to address deficiencies, if any.

87. Training Advisory Council meetings will be open to the public unless the matter under discussion is confidential or raises public safety concerns, as determined by the Chief.

Status

Substantial Compliance – ongoing obligation

Analysis

TAC has been conducting public meetings. TAC even received extensive public comment from Portland Copwatch. See Training Advisory Council Meeting Minutes, May 11th, 2016. Portland Police Bureau has listed TAC agendas and minutes, as well as TAC’s report. See https://www.portlandoregon.gov/police/61449.

Technical As we stated last year, like many other volunteers in this process, TAC members Assistance deserve thanks.
We will assess TAC’s planned review of its report.

V. COMMUNITY-BASED MENTAL HEALTH SERVICES
88. The absence of a comprehensive community mental health infrastructure often shifts to law enforcement agencies throughout Oregon the burden of being first responders to individuals in mental health crisis. Under a separate agreement, the United States is working with State of
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Oregon officials in a constructive, collaborative manner to address the gaps in state mental health infrastructure. The state-wide implementation of an improved, effective community-based mental health infrastructure should benefit law enforcement agencies across the State, as well as people with mental illness. The United States acknowledges that this Agreement only legally binds the City to take action. Nonetheless, in addition to the City, the United States expects the City’s partners to help remedy the lack of community-based addiction and mental health services to Medicaid clients and uninsured area residents. The City’s partners in the provision of community-based addiction and mental health services include: the State of Oregon Health Authority, area Community Care Organizations (“CCOs”), Multnomah County, local hospitals, health insurance providers, commercial health providers, and existing Non-Governmental Organizations (“NGOs”) such as community-based mental health providers, and other stakeholders.

Status

Not measured

Analysis

The State now has a plan for improved, community-based mental health services.
We recognize that PPB continues to operate within the context of serious gaps in community-based mental health services throughout the State, and PPB deserves praise for initiating engagement with community partners in the effort to bridge the service gaps.
Portland Police Bureau has done so by working with the Unity Center, further discussed below, and with for-profit area hospitals, and by initiating conversations with the Oregon Health Authority regarding the issues Officers face due to the system gaps. In July 2016, the State finalized a Mental Health Performance Plan for Adults with Serious and Persistent Mental Illness (the “Plan”). Input from law enforcement was a key factor in the negotiation of the State’s Plan. As a result, the State has committed to increasing the array of community-based mental health care services, including services to assist in decreasing the number of contacts with law enforcement.
The reforms in the State’s Plan include:
• Improving transitions from institutionalized levels of care (Oregon State Hospital, Acute Psychiatric Care Facilities, Secured Residential Treatment Facilities, and Emergency Departments (“EDs”)) to integrated communitybased treatment;
• Increasing access to crisis services (e.g., mobile crisis), and communitybased supports (e.g., Assertive Community Treatment (“ACT”)) to avoid incarceration or unnecessary hospitalization for adults with SPMI;
• Expanding supported housing and peer support services (There is also a reporting requirement on supported employment); and
• Reducing the contacts between persons with SPMI and law enforcement due to mental health reasons, through better criminal justice diversion

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strategies.
The Plan also adds accountability to the State’s efforts with a requirement for an Independent Consultant to publicly report on the State’s progress and to provide the State technical assistance.
The Department of Justice wrote to the State concerning its Plan and DOJ’s expectations regarding implementation. The Plan, as well as DOJ’s letter to the State, are both publicly available at the following link: http://www.oregon.gov/oha/bhp/Pages/Oregon-Performance-Plan.aspx
In 2016 Q2, PPB reports it applied to serve on the Behavioral Health Collaborative, established by the Oregon Health Authority to assist in the effort of the State’s implementation of the Plan. We look forward to continued feedback from PPB and other law enforcement partners on the impact of the State’s Plan as the State implements the Plan over the next three years.

Technical Assistance

We applaud BHU’s regular participation with community partners, and we are pleased to learn that the BHU is looking at ways to share BHU Electronic Referral System (BERS) data on trends of issues being addressed, as we previously advised in our 2015 compliance report.

89. The United States expects that the local CCOs will establish, by mid-2013, one or more dropoff center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. All such drop off/walk in centers should focus care plans on appropriate discharge and community-based treatment options, including assertive community treatment teams, rather than unnecessary hospitalization.

Status

Partial compliance, significant improvement – ongoing obligation

Analysis

The City and PPB have actively participated in establishing the Unity Center.
DOJ recognizes that the City is not responsible for the delivery of mental health services. However, to the extent that the City interacts with persons having mental health service needs, the City has a vested interest in engaging its partners to address the concerns. Commendably, PPB has continued to actively participate in addressing these concerns.
As reported in our 2015 assessment, the Legacy Health Hospital System, Oregon Health & Science University, and for- and non-profit health care organizations (Adventist Health and Kaiser Permanente) will open the Unity Center for Behavioral Health. We expect the Unity Center to provide emergency psychiatric services, a co-located centralized inpatient facility, and enhanced partnerships with community organizations providing behavioral health and substance use disorder services.
The Unity Center now has a dedicated website, http://unityhealthcenter.org/, and

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reports a projected opening in early 2017.
Portland Police Bureau has been steadfast in its efforts with the Transportation subcommittee concerning utilization of ambulance services rather than police vehicles for transporting individuals who are placed on a director’s hold to the center. We commend the City and PPB for engaging the legislature to support a change in administrative rules to allow for such transportation, and for working with Unity on the beta testing of the transport protocol.

Technical Assistance

As noted in our 2015 report, we encourage the City to continue its involvement in the workgroup discussions, not just concerning transportation of individuals to the Center, but also to provide input on coordination with community partners regarding the importance of the inclusion of community-based services at the Unity Center. We look forward to PPB’s report on its role on the Unity Advisory Committee, which the City reported will begin later in 2016.

90. The CCOs will immediately create addictions and mental health-focused subcommittee(s), which will include representatives from PPB’s Addictions and Behavioral Health Unit (“ABHU”), the ABHU Advisory Board, Portland Fire and Rescue, Bureau of Emergency Communications (“BOEC”) and other City staff. These committees will pursue immediate and long-term improvements to the behavioral health care system. Initial improvements include:
a. Increased sharing of information, subject to lawful disclosure, between agencies and organizations including BOEC, Multnomah County, and health care providers to create an information exchange among first responders and providers to better serve those suffering from mental illness;
b. Creation of rapid-access clinics so those in crisis have access to timely medication management appointments;
c. Enhancing access to primary care providers to shift low-to moderate acuity patients to primary care programs creating more capacity for acute patients in existing outpatient crisis mental health systems;
d. Expanding the options and available capacity for BOEC Operators to appropriately divert calls to qualified civilian mental health providers as first responders;
e. Addressing issues of unmet needs identified by Safer PDX and its community partners;
f. Expanding and strengthening networks of Peer-Mediated services to:
i. develop a referral guide delineating these services and locations and assist with accessing information;
ii. better educate the community of the viability of these services as alternative first engagement sites/programs for those having difficulty engaging with “professional driven” services;

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iii. expand peer services connected to peer supports in the community for inpatient psychiatric units (including Emergency Departments) and in the community;
iv. add peer guides to work alongside Emergency Department guides for those patients with behavioral health issues entering the Emergency Department; and
v. evaluate opportunities to expand use of peers to coordinate with PPB ABHU (as described herein) and function as a link with impacted individuals; and
g. pursue tele-psychiatry (a provision of mental health care by video conferencing) as a way for first responders to take advantage of existing IT infrastructure to provide direct care or provider evaluation supporting the provision of appropriate services to an individual in crisis.

Status

Substantial Compliance

Analysis

Portland Police Bureau has sought collaboration even after CCOs disbanded mental health subcommittees.
Portland Police Bureau initially reported that the CCOs had created mental health subcommittees, and that the BHU command participated in both the Health Share Oregon and Family Care CCO subcommittees. See https://www.portlandoregon.gov/police/article/452158, and quarterly reports 2014 Q1-2015 Q1. Portland Police Bureau previously then reported that the CCOs disbanded these subcommittees – for unknown reasons.
We continue to acknowledge that the City cannot force the CCOs to create or maintain such subcommittees. Notwithstanding this jurisdictional barrier, the sharing of information between partners concerning the improvements for behavioral health services indicated in subparagraphs (a)-(g) above is critical to linking individuals to services and, by extension, helping to avoid unnecessary contact with law enforcement.
As noted in our analysis in Paragraph 88, above, we applaud PPB on their initiative to serve on the Behavioral Health Collaborative, established by the Oregon Health Authority to assist in the effort of the State’s implementation of its Mental Health Performance Plan. We look forward to continued feedback from PPB and other law enforcement partners as the State implements the Plan over the next three years.
We further applaud PPB’s other creative efforts to engage its partners to meet the spirit of this provision. For example, PPB reports that the SCT Program Manager continues to attend the Legacy Emergency Department Outreach monthly meetings, and manages referrals from ED diversion programs.

Technical We encourage PPB to champion the efforts by the BHU, including the SCT, to seek Assistance out opportunities to engage system partners.

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VI. CRISIS INTERVENTION
The City acknowledges that the community of consumers of mental health services, and their families and advocates, have an interest in interactions between PPB and people experiencing mental health symptoms or crises. The PPB will add new capacity and expertise to deal with persons perceived or actually suffering from mental illness, or experiencing a mental health crisis as required by this Agreement. Despite the critical gaps in the state and local mental health system, the City and PPB must be equipped to interact with people in mental health crisis without resorting to unnecessary or excessive force.
A. Addictions and Behavioral Health Unit and Advisory Committee
91. In order to facilitate PPB’s successful interactions with mental health consumers and improve public safety, within 60 days of the Effective Date, PPB shall develop an Addictions and Behavioral Health Unit (“ABHU”) within the PPB. PPB shall assign command-level personnel of at least the rank of Lieutenant to manage the ABHU. ABHU shall oversee and coordinate PPB’s Crisis Intervention Team (“C-I Team”), Mobile Crisis Prevention Team (“MCPT”), and Service Coordination Team (“SCT”), as set forth in this Agreement.

Status

Substantial Compliance

Analysis

Portland Police Bureau has fully established behavioral health response teams, pairing Project Respond clinicians with specially trained Officers
Despite the lack of a Memphis Model crisis intervention team as discussed in more detail in our analysis of Paragraph 99, PPB has established a Behavioral Health Unit (“BHU”) (the equivalent of the “ABHU” required by this Paragraph), and the BHU substantially functions in an oversight and coordination role as required by this Paragraph.
Establishing ABHU: PPB has established the Behavioral Health Unit (BHU). As noted in our 2015 report, we commend PPB on the development and dedication of the BHU and its coordination with the BHU Advisory Committee and other community partners (“BHUAC”).
Addictions and Behavioral Health Unit oversight of Crisis-Intervention Team, Mobile Crisis Prevention Team, and Service Coordination Team: The BHU includes a mobile crisis prevention team, called the Behavioral Health Response Team (“BHRT”); the SCT; a Coordinator for ECIT Officer s, and a Crime Analyst. The BHU assists in the development of Academy-level Crisis-Intervention Training and Enhanced Crisis-Intervention Training.
The PPB chain of command provides for the Behavioral Health Unit’s coordination with ECIT-trained Officers, as well as certain oversight responsibilities. ECIT Officers report via their chain of command to their precinct commander and, ultimately, the Assistant Chief of Operations. This structure is consistent with the Memphis Model.
While the BHU does not directly supervise ECIT Officers, we commend PPB for developing a new SOP to clarify BHU’s oversight role of these Officers.
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Specifically, the SOP clarifies that BHU is “tasked with assisting in the oversight of ECIT Officers to ensure they continue to meet . . . qualifications.” This task requires the BHU Lieutenant to coordinate with ECIT Officers’ command staff and the Professional Standards Division, to ensure that there is an updated list of ECIT Officers, monitor EIS alerts regarding ECIT Officers, communicate alerts to ECIT Officers’ commanders, review sustained IA investigations involving force or misconduct against a person with mental illness, and notify the Central Precinct Commander of actions that may impact Officers continuing on the ECIT. See, Standard Operating Procedure #1-2. We expect the City to continue to monitor the performance and supervision of ECIT Officers, and to expand the oversight functions of BHU as necessary. While the current unit structure of the BHU conforms to the Memphis Model, how ECIT is deployed does not.
Command-level Supervision: The Central Precinct Commander oversees the BHU, including both the BHRT and SCT. A Lieutenant oversees the day-to-day operations of the BHRT; the SCT Program Manager oversees the SCT.

Technical Assistance

Portland Police Bureau should continue to update COCL and DOJ on changes to personnel where applicable, and consider evaluating and expanding BHU’s oversight functions to include evaluation and review of ECIT reports and an increased role in discipline-related issues. To ensure adequate review and oversight, PPB should staff the Crisis Intervention Coordinator position with a Member of supervisory rank.

92. ABHU will manage the sharing and utilization of data that is subject to lawful disclosure between PPB and Multnomah County, or its successor. PPB will use such data to decrease law enforcement interactions or mitigate the potential uses of force in law enforcement interactions with consumers of mental health services.

Status

Partial compliance, improvement – ongoing obligation

Analysis

Portland Police Bureau conducts coordinating meetings with law enforcement and mental health partners and is now developing data to help mitigate future law enforcement interactions.
Portland Police Bureau reports that it holds Behavioral Health Coordination Team (“BHCT”) meetings every other week with system partners, including Multnomah County system partners such as the Mental Health Diversion Court program (including Probation and Parole), and the Sheriff’s office. BHCT attendees problem-solve challenging cases or individuals with whom their agencies have repeat encounters. Other community-based partners also attend these meetings.
While such meetings are commendable, we are concerned about team members’ absence rates. In a review of attendance records from 2015 Q4 – 2016 Q2, absenteeism ranged from a high of 74% to a low of 39%, with a typical absentee rate of at least 50%. This is concerning given the purpose of the meeting is to share
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information between partners. DOJ will further address this concern as we gather additional information from the BHCT.
This year, PPB reportedly began sharing BHU Electronic Referral System (“BERS”) data with partners at the BHCT in the form of “snapshots” that contain a summary of an individual’s status with BHU, contacts with police, and referral information. It is unclear, however, how BHU or system partners use those snapshots in order to decrease law enforcement interactions or mitigate potential uses of force. The snapshots represent a limited selection of the data that may be shared between the County and PPB, and focus on individuals, rather than looking at data that might help address broader trends in interactions with mental health service consumers and use of force. Portland Police Bureau also reported that in April 2016, it presented to the BHCT PPB’s analysis of BERS trends of law enforcement contacts pre and post and BHCT referrals.
Portland Police Bureau’s own collection of data pursuant to the Mental Health Mask is still in initial stages. Once available, these data may assist PPB and its partners in evaluating program effectiveness. These data may also have other potential uses to advance the goals of this Paragraph.
Portland Police Bureau reports that the SCT continues to meet and manage referrals through coordination with several partners.

Technical Assistance

We continue to commend BHU for regularly participating in meetings to coordinate resources with community partners. We are pleased to learn that PPB is considering how to present trends in data compiled by BERS. We recommend that BHU pursues additional avenues or methods for sharing BERS-related data on trends of issues being addressed, in addition to discussion regarding individual cases referred to the BHU. BHU should explore avenues for using the data contained in the “snapshots” to advance the objectives in Paragraph 92. BHU should additionally monitor data that is obtained through the Mental Health Mask to find information that may be shared with the County to advance mutual goals.

In 2016 Q1 and Q2, PPB reported that the BHU produces a “BERS trend report,” and that BHU was compiling a list of partners with whom to share the report. We are pleased that PPB is planning to share this information. However, the report provided does not address trends. Rather the report is a snapshot in time as to the status of referrals. We encourage BHU to assess trends by comparing data over a period of time.

93. ABHU shall track outcome data generated through the C-I Team, MCPT, and SCT, to: (a) develop new response strategies for repeat calls for service; (b) identify training needs; identify and propose solutions to systemic issues that impede PPB’s ability to provide an appropriate response to a behavioral crisis event; and (c) identify officers’ performance warranting commendation or correction.
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Status Analysis

Compliance Rating Pending – Insufficient Documentation
Portland Police Bureau is implementing a data collection system to assess staffing of mental health related calls that requires Officer participation to generate useful data.
Tracking Outcome Data:
The BHU’s compliance with the requirement to track outcome data depends upon successful implementation of PPB’s Mental Health Mask, first implemented by PPB’s Strategic Services Division (SSD) during 2016 Q1. The Mask, developed with DOJ input, requires all Officers to fill out an electronic form for each citizen interaction to track a number of measures, including whether there was a mental health component to the interaction, use of ECIT resources, and outcomes. It replaces the previously used “ECIT Template” that was only used by ECIT Officers and only after utilizing crisis intervention skills during an interaction. As noted by the COCL’s analysis, fluctuations in the number of ECIT Templates indicated that it was not being used consistently.
During our compliance visit in August 2016, we spoke to a number of Officers regarding the Mental Health Mask. At its initial implementation, the Mask had a number of IT issues that made its use difficult. Additionally, some Officers stated that some of the questions on the Mask were vague and difficult to answer. Officers also reported that some Officers would fill out the Mask to indicate no mental health component, even where there existed indications of a mental health component, to avoid having to fill out the remainder of the form. Accordingly, several Officers indicated that they did not believe the initial data produced by the Mental Health Mask would be accurate.
Portland Police Bureau has taken steps to improve the Mental Health Mask in response to problems, including addressing many of the IT concerns and altering problematic questions. It is too early to assess the success of the Mental Health Mask in tracking ECIT and other data now that initial problems have been addressed. We will conduct further assessment once PPB has collected adequate data.
The BHU continues to track BHRT referrals and follow-up through its BERS system. Portland Police Bureau reports that any PPB Member can make a referral to the BHU through BERS, and such referral is assigned to a BHRT if it meets certain criteria. In 2016 Q2, PPB reports that there were 246 referrals to BHU (including individuals with multiple referrals), 162 of which were new referrals. Of those new referrals, 88 (54%) were assigned to a BHRT for follow-up. Further, in 2016 Q2, PPB reported that there were 135 cases (131 individuals) that had reached an outcome and thereby were transferred to inactive status. The most frequent outcome was “coordinated services” (43 cases), whereas jail/criminal justice system accounted for 15 cases, representing an increase of 8 from 2015 Q2. Other categories are as follows: concern mitigated (25 cases); unable to locate (20 cases); refused assistance (15 cases); civil commitment (6 cases); and
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other (5 cases). We are concerned about the increase, albeit small, in individuals who ended in the criminal justice system, were not located, refused assistance, or were civilly committed. We urge BHU to track such data trends and the reasons for such outcomes, and address trends in the semi-weekly meetings with partners.
Portland Police Bureau also produced aggregate data of the number of entrants to SCT’s program; the number of graduates; those who were able to find housing and/or a job after the program; and the aggregate number of arrests for program participants before the program as opposed to after. The statistics provided a broad overview of the scope of the program, but continue to have limitations, discussed in detail in our response to Paragraph 112.
Developing New Strategies for Repeat Calls: Although PPB indicated in 2015 Q2 that data will be used to develop strategies, it still has not reported any such strategies or described how the data tracked will lead to strategy development.

Technical Assistance

BOEC uses the “ECIT” code to track dispatch for the current limited category of calls involving a mental health component for which ECIT may be dispatched. BOEC codes all other calls that may involve a mental health component with only one code for the situation (e.g., welfare check, disturbance, etc.). For these other calls, a regular Patrol Officer is dispatched regardless of whether there is a mental health component to the situation. Until PPB fully and successfully implements the Mask, it will not be possible to know how many calls not coded as ECIT involve a mental health component. We urge PPB to continue to refine and update the Mask in response to input from Officers, the COCL, and DOJ, in order to improve accuracy in the collected data. As part of this effort, it will be crucial to inform Officers about why PPB is collecting these data, rather than simply conveying that it is a DOJ requirement, as has been done in the past. Accurate input into the Mental Health Mask requires buy-in from Patrol Officers, which is more likely when they understand the reasons PPB collects and uses these data.

Data on the number and type of all mental health-related calls remains critically needed to inform this discussion. In order to measure the success of PPB’s nonMemphis Model ECIT program, it will be critical to have accurate information from the Mask in order to assess outcomes across cases involving a mental health component.

94. Within 90 days of the Effective Date, PPB shall also establish an ABHU Advisory Committee. The ABHU Advisory Committee shall include representation from: PPB command leadership, CIT, MCPT, and SCT; BOEC; civilian leadership of the City government; and shall seek to include representation from: the Multnomah County’s Sheriff’s Office; Oregon State Department of Health and Human Services; advocacy groups for consumers of mental health services; mental health service providers; coordinated care organizations; and persons with lived experience with mental health services.

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Status

Substantial compliance – ongoing obligation

Analysis

ABHU Advisory Committee members successfully engage in constructive feedback to PPB on policy and training.
A 2016 Q2 roster of ABHU Advisory Committee members provided by PPB includes all of the organizations and personnel listed in Paragraph 94 (noting that the Oregon State Department of Health and Human Services has been since been restructured and the relevant state component is the Oregon Health Authority (“OHA”). A member representing the Metropolitan Public Defenders Office resigned due to leaving the office. While this position is not required by the Agreement, we acknowledge PPB’s interest in hearing from a critical piece of the system and we encourage a replacement be made quickly.
DOJ has observed ABHU Advisory Committee meetings throughout this past year. While members’ attendance at the meetings varies, the present committee members all engage in insightful and useful dialog in ensuring PPB looks at all the angles of a concern.

Technical Assistance

DOJ commends the BHU and its Advisory Committee for its ongoing work on the implementation of this agreement, and for maintaining strong membership in the Advisory Committee. In order for us to continue to assess the formation of the Advisory Committee and ongoing participation of its members, PPB should be providing information about how PPB recruits committee members, and should continue to provide minutes of meetings.

Portland Police Bureau also should continue to engage in concerted and documented efforts to ensure that all required BHU Advisory Committee members consistently participate in meetings.

95. The ABHU Advisory Committee shall provide guidance to assist the City and PPB in the development and expansion of C-I Team, MCPT, SCT, BOEC Crisis Triage, and utilization of community-based mental health services. The ABHU Advisory Committee shall analyze and recommend appropriate changes to policies, procedures, and training methods regarding police contact with persons who may be mentally ill or experiencing a mental health crisis, with the goal of de-escalating the potential for violent encounters. The ABHU Advisory Committee shall report its recommendations to the ABHU Lieutenant, PPB Compliance Coordinator, COCL (as described herein), and the BOEC User Board.

Status

Substantial compliance – ongoing obligation

Analysis

Minutes from BHU Advisory Committee meetings and the Committee’s reports show that the Committee reviews many of the issues contemplated by Paragraph 95, and issues well thought-out and informed advice and comments on a number of documents and items relevant to the requirements of Paragraph 95. In 2016, BHUAC has reviewed and offered insight into BOEC protocols and ECIT and
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BHU Crime Analyst SOPs, as well as having conducted ongoing review of ECIT training content and instructors. The City has adopted many of the changes and comments recommended by BHUAC.

Technical Assistance

Portland Police Bureau should continue to utilize the BHU Advisory Committee’s comments to improve its policies, procedures, and training methods. The City’s ongoing implementation obligations for the Committee go hand-in-hand with bringing all of the crisis intervention sections of the Settlement Agreement to fruition.
We recommend that the City continue to look for ways to utilize the amount of experience on the board. One member conveyed to us that she wanted to move on from “checking the boxes” and get into the more substantive issues. For example, PPB reported in its 2016 Q2 update that the BHUAC recommended that the BHU develop a special opportunity at the training center for members of the community. This request has come from community members as well, and PPB could utilize the expertise on the BHUAC to assist in developing and planning such an event.

96. Within 240 days of the Effective Date of this Agreement, the ABHU Advisory Committee will provide status reports on the implementation of the ABHU and BOEC Crisis Triage, and identify recommendations for improvement, if necessary. PPB will utilize the ABHU Advisory Committee’s recommendations in determining appropriate changes to systems, policies, and staffing.

Status

Partial compliance – ongoing obligation

Analysis

BHUAC has met and provided useful recommendations, and must report on BOEC’s implementation of crisis triage.
In 2016, PPB reports that the BHUAC made formal recommendations, including voting to accept BOEC’s procedure on processing calls involving suicidal threats, attempted suicide, and suspected or actual deaths, as well as voting to accept recommended changes to BOEC ECIT dispatch protocols. BHUAC also commented on ECIT SOPs. Portland Police Bureau has accepted most of the recommendations made by BHUAC. The updated BOEC protocols, however, do not reflect true Crisis Triage as envisioned by this Agreement, and the protocols themselves have yet to be implemented fully, with staff trainings planned for 2016 Q4 and 2017 Q1. The BOEC protocols were developed without concurrent comment and approval from DOJ. Successful compliance with Paragraph 96 will require BHUAC to provide status reports on the implementation of BOEC Crisis Triage as it is currently conceived, and identification of recommendations for improvement in order to reach capacity so that dispatch is able to conduct Crisis Triage that more fully reflects the requirements of this Agreement.

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Technical Assistance

As new BOEC protocols were recently put into place, BHUAC is tasked with providing status reports on their implementation. BHUAC should seek to identify improvements that may be made to dispatch protocols to achieve a more fully developed Crisis Triage, including direct dispatch of community service providers where appropriate.

B. Continuation of C-I Program
97. PPB provides C-I Training to all its officers. C-I is a core competency skill for all sworn police officers in the City. PPB shall continue to train all officers on C-I.

Status

Partial compliance – ongoing obligation, documentation required

Analysis

Portland Police Bureau reports compliance, but documentation provided must be auditable. Portland Police Bureau reports that 781 Officers in operations are certified with 40 hours of training. As part of its documentation supporting this position, PPB has provided lesson plans for its “Advanced Academy,” the training that is provided to all Officers. However, despite specific requests, the City has not provided a course agenda for either the basic or the advanced academy which would show the number of hours each course provides. Furthermore, PPB’s certification records do not contain information to ascertain whether or not the 781 Officers are all whom must be trained.

Technical As noted in our 2015 report, PPB still must provide auditable training records in Assistance order to comply with this provision.
Portland Police Bureau reports that it is awaiting learning management system software. Once installed, this program should provide an efficient method for auditing records.

98. PPB agrees to continue to require a minimum of 40 hours of C-I training to all officers before officers are permitted to assume any independent patrol or call response duties. Additionally, PPB shall include C-I refresher training for all officers as an integral part of PPB’s on-going annual officer training. PPB’s Training Division, in consultation with ABHU Advisory Committee, shall determine the subjects and scope of initial and refresher C-I training for all officers.

Status

Partial compliance – ongoing obligation, documentation required

Analysis

As part of its 2016 Q2 documentation for this Paragraph, PPB included a PowerPoint overview of the BHU. This is not responsive documentation. This is a similar issue that was addressed in last year’s assessment. The purpose of this paragraph is to ensure that all Officers in patrol or response duties receive a minimum of 40 hours of training, and ongoing refresher training, in crisis
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intervention skills.
While PPB provided advance academy lesson plans, which included C-I materials in response to a separate request, no course curriculum was provided. Therefore, we are not able to discern whether or not Officers have satisfied the required number of hours, nor can we compare what is provided at the basic academy vs. the advanced academy – which together make up the 40-hour requirement. Upon specific request, PPB did provide a roster showing crisis intervention certification for 781 Officers, but the records are not detailed enough for a substantial compliance rating.
Portland Police Bureau reports that it is including a crisis intervention refresher training in its 2016 in-service training, which started in September. We look forward to observing this training for our next assessment.
We are pleased to note that PPB consulted the BHUAC regarding the subject areas to be covered during this refresher training. We look forward to reviewing the materials PPB indicates it will release for the next quarterly report.
Technical As noted in our 2015 report, PPB still must provide auditable training records in Assistance order to comply with this provision.
Portland Police Bureau reports that it is awaiting a software learning management system update, which once installed, should provide an efficient method for auditing records.

C. Establishing “Memphis Model” Crisis Intervention Team
99. Within 120 days of the Effective Date, PPB shall establish a Memphis Model Crisis Intervention team (“C-I Team”).

Status

Compliance rating pending– insufficient documentation

Analysis

The Parties agreed to a plan to gather data to assess whether PPB’s modified Memphis Model meets the requirements of this provision.
While PPB has created a volunteer cadre of Officers under its ECIT program, PPB’s model does not comport with some of the core elements of a Memphis Model Crisis Intervention Team.
The “Memphis Model” includes, among other core elements:
• Training dispatchers to identify calls that may involve mental illness;
• Having Officers with extensive crisis-intervention training and experience (most comparable to PPB’s “ECIT” Officers) respond to all such calls; and
• Having Officers with extensive crisis-intervention training and experience assess the situation and, when appropriate, take control of the scene.

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Some aspects of PPB’s approach to crisis intervention are consistent with the Memphis Model. All PPB Officers receive 40 hours of training in crisis intervention at the Academy; Patrol Officers can volunteer to take an additional 40 hours of in-service training focused on crisis intervention; PPB calls these Officers “ECIT Officers.” Dispatchers call exclusively ECIT-trained Officers for a subset of calls that may involve mental illness. Broadly speaking, none of these aspects conflicts with the Memphis Model.
Portland’s model differs from the Memphis Model because it does not reserve all or even nearly all mental-health-related calls for the most highly-trained crisisintervention Officers, those who have received ECIT training. BOEC has resisted making assessments of whether mental illness is involved in a call for service, instead dispatching ECIT Officers to calls that fit a list of clearly-defined categories that could not possibly capture all calls involving mental health. BOEC call takers and dispatchers have yet to receive training on the updated protocols that are intended to introduce some crisis triage elements.
Accordingly, BOEC dispatches a considerable number of calls involving mental illness as it would any call for service. Likewise, PPB does not require that ECIT Officers respond to all or even most calls suspected to involve mental illness. Even where an ECIT Officer responds to a call where the police recognize that mental illness is in play, PPB places no obligation on the ECIT Officer to take control of the scene unless the incident meets one of the pre-selected criteria for ECIT response. Because there is no reliable evidence (pending successful implementation of the Mental Health Mask) that ECIT Officers respond to a higher volume of mental illness-related calls than do Crisis Intervention Officers, whether the ECIT Officers accrue specialized experience with mental illness as quickly as do Memphis Model Officers, is highly questionable.
Neither PPB nor BOEC currently employs a means of identifying all mental-healthrelated calls, meaning neither PPB nor DOJ have a means of identifying the number of mental-health-related calls to which ECIT Officers respond. The development of the Mental Health Mask and the data it collects, once successfully implemented, will aid in making this determination.
Despite the Settlement Agreement’s unequivocal requirement that PPB implement a Memphis Model crisis-intervention team, PPB is concerned that expanding the coverage of mental-health-related calls directly dispatched to ECIT Officers will impede ECIT Officers from responding to higher risk calls. Overall, ECIT Officers report that the program is generally working effectively as currently conceived. However, there were a number of reports of issues with several aspects of the ECIT program. ECIT Officers have expressed to us that they are already overwhelmed with the number of calls that require ECIT attendance. Due to the limited number of available ECIT Officers on any given shift, they are sometimes called to attend to calls for service outside of their patrol area, resulting in delays due to long transit times. At times, the calls will be resolved before the ECIT Officers arrive.
There exist other challenges to the full implementation of a Memphis Model Crisis
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Intervention Team. Deficiencies in the Multnomah County mental health system create pressure on PPB and Project Respond. Lack of a “police friendly” drop-off facility results in delays that occur when police take people in crisis to hospital emergency rooms. Finally, Oregon law restricts criteria for civil commitment.
Nonetheless, PPB is pursuing its alternative approach, which it considers an “improved version” of the Memphis Model. PPB’s new crisis response policy, 850.20, was developed and implemented in 2016 Q2. The policy, incorporating input from DOJ, the BHU, and the COAB, contains provisions that provide for increased usage of ECIT Officers, while still not requiring an ECIT Officer to attend to all mental-health-related calls. The policy was drafted to reflect PPB’s view that this alternative model will be better adapted to Portland’s unique crisis response needs. DOJ has granted provisional approval to the policy, conditioned upon the City’s agreement to collect and analyze agreed-upon data on the dispatch of all Officers to mental-health-related calls.
We commend PPB’s effort to train its Members on this new crisis response policy. PPB reports that the new 850.20 policy is the first directive rolled out with a knowledge check or test included.
Accordingly, determination of compliance with this Paragraph requires forthcoming data and analysis.

Technical Assistance

The City and PPB must successfully implement the Mental Health Mask with refinements that allow for data collection on the response to and outcome of all calls with a mental health component. Once the Mental Health Mask has been implemented to gather accurate data, PPB must present an analysis that allows us to assess whether its alternative approach represents an acceptable alternative to the Memphis Model.

DOJ continues to evaluate how PPB deploys its method of disengagement in crisis settings. While the new crisis policy only requires Officers to notify a mental health provider before disengaging, we encourage PPB to work towards protocols allowing for an Officer to consult with a mental health provider in forming a disengagement strategy. Such protocol will encourage and facilitate the responsiveness PPB and the community seek from mental health professionals.

100. PPB’s C-I Team shall be comprised of officers who volunteer for assignment to the C-I Team. The number of C-I Team members will be driven by the demand for C-I Team services, with an initial goal of 60-80 volunteer, qualified officers.

Status

Substantial compliance – ongoing obligation

Analysis

ECIT Officers volunteer for their assignment. PPB should ensure sufficient ECIT Officers for each shift and area. As set forth above, PPB has implemented some aspects of a Memphis Model C-I
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Team. PPB’s policies governing encounters with persons in crisis and Portland’s dispatch protocols may not allow for ECIT Officers to gain the accelerated experience with mental illness-related calls that a Memphis Model C-I Team would. In order to make this determination, data from a successful Mental Health Mask implementation is required.
Nonetheless, PPB’s alternative approach to crisis response consists of ECIT Officers who volunteer for assignment, and the current roster of 94 operational ECIT Members exceeds the initial goal of 60-80 volunteer, qualified Officers. As noted above, some ECIT Members mentioned to us that there are insufficient ECIT Officers in some patrol areas during some shifts, requiring ECIT Officers to travel long distances to respond to calls. Thus, in order to ensure the number of team Members is “driven by demand” for ECIT services, PPB should conduct an ongoing assessment of staffing requirements in conjunction with Mental Health Mask data to determine whether additional ECIT Members are warranted.

Technical Assistance

We recommend that PPB continue to train sufficient volunteer Members to maintain adequate staffing, and conduct ongoing assessment of staffing levels to determine if additional ECIT Members are required based on data recovered from the Mental Health Mask and other available sources.

101. No officers may participate in C-I Team if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of C-I Team service, or during C-I Team service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the C-I Team.

Status

Compliance rating pending provision of auditable records

Analysis

Portland Police Bureau has reported that it has a vetting process for ECIT applicants who conform to this provision. Portland Police Bureau has recently implemented a new SOP that contains the requirements for participation in ECIT required by this Paragraph. Portland Police Bureau has reported consultation with the BHU Advisory Committee on development of the SOP. Additionally, as noted by COCL, SOP 3.3 (ECIT) does not provide for automatic removal of an ECIT Officer from service in the event of a sustained allegation of force or misconduct against a person with mental illness.
No new ECIT Officers were trained during the first or second quarter of 2016.

Technical Assistance

Portland Police Bureau should fully implement SOP 3.3 (ECIT), and continue to enforce requirements for qualification, selection, and ongoing participation with ECIT. Portland Police Bureau should additionally modify SOP 3.3 (ECIT) to ensure that an ECIT Member who is subject to a sustained allegation of force or misconduct against a person with mental illness is removed from the team.

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Portland Police Bureau reports in its 2015 Q4 update that it used the screening process for each officer selected. And PPB provides extensive email documentation showing that such reviews were conducted. Portland Police Bureau should provide an auditable record, such as a spreadsheet, showing the complete list and categories for review of the ECIT candidates and showing screening for prior disciplinary history involving force or mistreatment of people with mental illness.

102. PPB shall specially train each C-I Team member before such member may be utilized for C-I Team operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for C-I Team members consistent with the Memphis Model.

Status

Substantial compliance – ongoing obligation

Analysis

Subject to the caveat of our assessments to Paragraphs 97 and 98, PPB trains its ECIT officers on its modified Memphis Model.
As noted above, PPB’s ECIT Model includes aspects of the Memphis Model, including certain elements of training. A member of the DOJ team observed the ECIT training in November 2015, and it was an overall success. We conferred with COCL on their assessment of the training and concur with COCL’s technical assistance. Our consultant plans to observe the upcoming training.
In May and July of 2016, PPB also provided refresher course trainings to ECIT Officers who had previously received ECIT training before PPB updated its training material. We applaud PPB for their efforts in implementing this refresher training in accordance with our prior technical assistance. COCL observed the July 2016 training and provided positive feedback. COCL noted two issues:
First, PPB explains the requirement of the Mental Health Mask as merely a DOJ requirement. Portland Police Bureau failed to provide Officers the meaningful basis for the Mental Health Mask, namely that it creates benefits to PPB and PPB’s ability to effectively provide services to the people of Portland. This failure to explain the reasoning behind the Mental Health Mask has negative implications for the accurate recording of data, as discussed above. COCL’s commentary accords with DOJ’s discussions with ECIT and patrol Officers during its August 2016 visits. Through direct conversation with officers, we observed the negative perception Officers had of the Mental Health Mask and other initiatives that are presented as DOJ requirements. Indeed, an Officer we interviewed conveyed his negative perception of the mask as just a DOJ mandate. Once we discussed the purpose and potential benefits of the data gathering, the Officer changed his perspective. Multiple Officers stated they would be more willing to use the Mask as intended once informed of the policy considerations behind its implementation.
Second, COCL indicated that one of the classes did not provide adequate instruction due to mismanagement of time during the lesson. This appears to be a

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criticism that was limited to one training and a particular instructor and does not necessarily reflect the training as a whole or impact PPB’s compliance with the requirements of this section. Generally, as COCL noted after conducting a thorough review of ECIT lesson plans and observing multiple days of training, PPB’s ECIT training is consistent with other crisis intervention trainings across the country.

Technical Assistance

Portland Police Bureau must own the messaging to its Officers—changes in policy or training are beneficial to Officers’ ability to do their jobs effectively, and not merely something DOJ or the Settlement Agreement requires. Without providing Officers an understanding for the tasks PPB asks them to do, filling out the Mental Health Mask represents little more than an additional, mindless task. And, Officers are likely to continue to find ways to avoid diligently completing it, rendering the resulting data less valuable. Officers have indicated that they would like to know this information, but PPB has not provided it.

103. C-I Team members will retain their normal duties until dispatched for use as a C-I Team. BOEC or PPB may dispatch C-I Team members to the scene of a crisis event.

Status

Substantial compliance – ongoing obligation

Analysis

Portland Police Bureau has currently reached substantial compliance with this requirement, subject to the caveat that ECIT Members are only dispatched to the scene of crisis events that meet the criteria provisionally approved by DOJ, pending the collection of data in the Mental Health Mask. BOEC protocols now reflect the expanded criteria in the provisionally approved policy. This status may change if the data does not support PPB’s continued deviation from the Memphis Model of crisis response.

Technical BOEC must complete training on updated dispatch protocols slated to be completed Assistance by 2017 Q1.

104. PPB will highlight the work of the C-I Team to increase awareness of the effectiveness of its work.

Status

Substantial Compliance

Analysis

Portland Police Bureau consistently highlights the work of its ECIT and BHRT Members. Portland Police Bureau reports solid efforts to highlight work by its ECIT Officers over the past year. For example, in the first half of 2016, BHU Members participated in over 65 outreach events, including presenting PPB’s crisis response model and BHU program at the 2016 CIT International Conference in Chicago. Portland Police Bureau has engaged in a number of activities designed
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to highlight the work of BHU and its components, resulting in positive publicity. Additionally, BHU presented during the visit of the Attorney General as part of a national Community Policing Tour. BHU regularly publishes a newsletter regarding its activities, and maintains a web site that includes information on BHU components and activities and a reference guide to mental health resources.

Technical Assistance

We encourage PPB to continue to pursue documented community outreach to help inform the community about the existence, roles, and availability of the C-I Team, and to continue to reach out to the community for input on how to best highlight the work in a way that it will be consumed by the public.

105. For each crisis event to which a C-I Team is dispatched, the C-I Team member shall gather data that ABHU shall utilize to track and report data on public safety system interactions with individuals with perceived or actual mental illness or who are in crisis. These data shall include:
a. Date, time, and location of the incident; b. Subject’s name, age, gender, and address; c. Whether the subject was armed, and the type of weapon; d. Whether the subject is a U.S. military veteran; e. Complainant’s name and address; f. Name and DPSST number of the officer on the scene; g. Whether a supervisor responded to the scene; h. Techniques or equipment used; i. Any injuries to officers, subject, or others; j. Disposition; k. Whether a mental health professional responded to the scene; l. Whether a mental health professional contacted the subject as a result of the call; and m. A brief narrative of the event (if not included in any other document).

Status

Pending – Data not yet available

Analysis

Compliance with this Paragraph depends upon successful implementation of the Mental Health Mask. The Mask contains questions intended to capture the enumerated criteria. However, as that data has only recently begun to be gathered, it is too early to assess whether it has been accurately collected. As we noted above, there are reasons to believe that the initial implementation of the Mask has not provided usable data. First, IT issues made the Mask difficult to use. Second, some of the questions as initially conceived were vague or did not accurately reflect Officers’ experiences responding to calls. Third, Officers reported that some Officers would mark “no mental health component” in the
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case of any ambiguity to avoid having to respond to the follow-up questions. Finally, Officers indicated that they would at times wait until long after the actual incident to fill out the Mask. Portland Police Bureau has already made improvements to the Mask since its initial rollout, including resolving many of the IT issues. Until PPB collects sufficient data to track and analyze trends over time, we cannot assess the success of the Mask.

Technical Assistance

Portland Police Bureau must actively work together with Officers, BHU, COCL, and DOJ in order to continue refining the Mask and explaining its purpose to Officers in order to ensure that accurate data are being collected.

D. Mobile Crisis Prevention Team
106. PPB currently has an MCPT comprised of a two-person team, one sworn officer and one contractor who is a qualified mental health professional. Within 120 days of the Effective Date, City shall expand MCPT to provide one MCPT car per PPB precinct.

Status

Substantial compliance – ongoing obligation

Analysis

Portland Police Bureau reports that each precinct has an MCPT (now called Behavioral Health Response Team or “BHRT”), which is comprised of a PPB BHU Officer and a Project Respond staff member. No substantial changes have been made to the BHRT unit since we found substantial compliance in our 2015 assessment.

Technical We commend PPB for its established BHRT model. Assistance

107. Each MCPT car shall be staffed by one sworn PPB officer and one qualified mental health professional. MCPT shall be the fulltime assignment of each such officer.

Status

Substantial compliance – ongoing obligation

Analysis

Portland Police Bureau continues to report that each precinct’s BHRT car is staffed by a PPB Officer and a mental health professional from Project Respond. Portland Police Bureau and Project Respond are commended for their efforts in creating a model that seeks to pull individuals out of the gaps of the crisis system and connect them with community partners.

Technical We encourage PPB to assess the need for increasing capacity of BHRT on a Assistance periodic basis.

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108. No officers may participate in MCPT if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of MCPT service, or during MCPT service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the MCPT.

Status

Compliance rating pending – insufficient documentation

Analysis

Portland Police Bureau has reported that it has developed criteria that were subject to review by BHUAC. Those criteria are laid out in SOP 3.2 BHRT, but we have not yet received the implemented, executed SOP. The SOP includes a limitation on participation for those with sustained complaints involving force or mistreatment of a person with mental illness. As with SOP 3.3 (ECIT), SOP 3.2 (BHRT) does not call for immediate removal of an Officer who has a sustained IA investigation involving use of force or misconduct against a person with mental illness. It merely requires that the BHU Lieutenant will work with the Professional Standards Division to “review” the investigation, notify the Central Precinct Commander if the action impacts their continued participation in BHRT, and coordinate a decision to remove a BHRT Officer.
DOJ’s assessment of this provision is not meant to imply that any BHRT Member does not meet the criteria defined by this provision. Portland Police Bureau reports that it reviews all applicants for compliance with this criterion.

Technical Assistance

Now that PPB has finalized the SOP, PPB should provide us and COCL a version of the finalized SOP that has been signed and implemented. Portland Police Bureau should additionally provide documentation to indicate that current BHRT members meet the criteria as defined by Paragraph 108. Portland Police Bureau should modify the SOP to set forth removal criteria.

109. PPB shall specially train each MCPT member before such member may be utilized for MCPT operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for MCPT members.

Status

Substantial Compliance – ongoing obligation

Analysis

Portland Police Bureau indicates that all BHRT personnel have been trained in ECIT, as well as Applied Suicide Intervention Skills Training (“ASIST”), Trauma Informed Care, and Civil Commitment Proceedings. Portland Police Bureau also lists a number of outside trainings that BHRT Officers have attended during the course of their employment. PPB’s documentation for the 2016 Q2 Compliance Report includes a certificate of attendance for one Officer at the FBI’s Basic Crisis Negotiator Course. Additionally, SOP 3.2 (BHRT) includes recommendations for training, and was developed with the advice of BHUAC.

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Technical See Paragraphs 97 and 98 regarding training records. Assistance

110. MCPT shall utilize C-I Team data to proactively address mental health service, in part, by connecting service recipients with service providers.

Status

Partial Compliance – ongoing obligation

Analysis

As discussed in multiple sections above, the data collected by ECIT Officers has been in flux. Some data were available based on the ECIT Template that PPB has now phased out. As discussed herein, however, due to fluctuations in reporting, it is unclear how accurate those data were. Nonetheless, those data provided some information that, in combination with other information (such as BHRT and SCT enrollment information), could be used to proactively address mental health service. Once PPB successfully implements the Mental Health Mask and the Mask is generating consistent and reliable data, there should be further data available to assist PPB in developing systems to connect service recipients with service providers. This will work in conjunction with Oregon’s statewide mental health plan for improvement of community resources. In order to achieve substantial compliance, PPB should provide documentation and explanation of how its units are utilizing the increasing amount of data available from ECIT Officer interactions to proactively address mental health service.

Technical Portland Police Bureau needs to provide additional examples of how it is using data Assistance to implement this Paragraph.
Consistent with Paragraph 105, above, PPB must develop consistent, reliable data. Use of such data is necessary to implement Paragraph 110.

111. Within 180 days of the Effective Date, PPB, with the advice of the ABHU Advisory Committee, shall develop policies and procedures for the transfer of custody or voluntary referral of individuals between PPB, receiving facilities, and local mental health and social service agencies. These policies and procedures shall clearly describe the roles and responsibilities of these entities and of MCPT officers in the process.

Status

Partial compliance – ongoing obligation

Analysis

Portland Police Bureau is working on an agreement with an emergency medical transportation provider and received provisional approval for emergency transport policies.
The Parties discussed the issues represented in this Paragraph in 2015 Q4 and agreed that successful compliance will depend upon adjusting to the anticipated opening of the Unity Center’s Psychiatric Emergency Services. Additionally, since
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DOJ provisionally approved PPB’s main “trunk” mental health crisis intervention policy (850.20), PPB has developed “branch” policies intended to cover the transport of people with mental illness for treatment, psychiatric holds, and responding to calls at mental health facilities. Portland Police Bureau solicited input from the BHUAC, DOJ, and COCL and received DOJ’s provisional approval. (While COAB provided comments on the trunk crisis response policy, 850.20, it did not comment on the branch policies, 850.21, 850.22, and 850.25). We encourage additional review of these policies with the BHUAC once the Unity Center transportation protocols on finalized.
Additionally, we recognize that PPB has been in discussions with AMR, the local emergency transport company, to provide for EMS transport of individuals for psychiatric treatment. Although these discussions have yet to produce an agreement, we urge PPB to continue to work to secure EMS transport, and to revise and update its “branch” policies to accommodate the opening of the Unity Center’s facility.
It should be noted that the “branch” policies do not include a description of the roles and responsibilities of BHRT Officers during the process.

Technical Assistance

Portland Police Bureau should continue to work to develop the necessary agreements, policies, and procedures to provide for transport of persons under a police or director’s hold by EMS, and to revise policies and procedures as necessary, with input from the BHUAC, in order to establish a smooth process for interaction with the Unity Center facility as it becomes operational.

E. Service Coordination Team
112. The Service Coordination Team (“SCT”), or its successor, shall serve to facilitate the provision of services to individuals who interact with PPB that also have a criminal record, addictions, and highly acute mental or physical health service needs.

Status Analysis

Substantial Compliance – ongoing obligation
We concur with COCL’s assessment of the SCT as provided in COCL’s April 2016 Outcome Assessment Report. While many SCT clients do not complete the program, for those who do, data provided shows a remarkable increase in employment. We commend PPB for its efforts in this program, with both the clients they serve, and the community partners they engage to create successful outcomes.

Technical SCT should continue to look for ways to analyze data regarding the program, any Assistance trends, and outcomes for clients.

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F. BOEC
113. Within 120 days of the Effective Date, BOEC and PPB, with the advice of the ABHU Advisory Committee, shall complete policies and procedures to triage calls related to mental health issues, including changes to protocols for assigning calls to Multnomah County Crisis Call Center, and adding new or revised policies and protocols to assign calls to the PPB ABHU or directly to NGOs or community-based mental health professionals.

Status

Partial compliance – ongoing obligation

Analysis

BOEC successfully diverts calls to a warm transfer to the Multnomah County Crisis line
Pursuant to this paragraph, BOEC created an updated Suicide Reference Guide and Mental Health and ECIT Dispatch Protocol, which BHUAC reviewed. The updated protocols are intended to reflect PPB’s alternative ECIT response criteria, rather than a true Memphis Model crisis response system. The protocol essentially captures PPB’s criteria for ECIT dispatch, with an additional caveat. The BOEC protocol includes “threatening or attempting suicide” as stated in PPB’s Police Response to Mental Health Crisis policy and requires that the individual has the means to follow through with the threat to fit into this category.
The system for transferring calls to the Multnomah County Crisis Call Center appears to be functioning as intended, with BOEC transferring approximately 90100 calls per month, serving over 2,000 unduplicated individuals on a yearly basis, with only a small percentage being returned to BOEC for a police response. The Crisis Center also fields calls from PPB Officers requesting information. Most calls come from ECIT Officers.
BOEC still lacks, however, a system for assigning calls directly to PPB BHU or to NGOs or community-based mental health professionals. BHU’s response team, or Project Respond, only become involved in a call once patrol Officers (including ECIT Officers) respond to a call and then refer the call for later follow-up or assistance, or if BHU hears a call over the air and self dispatches. Personnel at BOEC conveyed to us the challenges and costs associated with developing a system for direct assignment of responders other than the police, emergency medical services, or the fire department. It should be noted that BOEC evidently possesses a dedicated and well trained staff, with very challenging jobs. BOEC staff demonstrated their commitment to providing for the safety of first responders and to citizens in need of help. Nonetheless, BOEC is currently experiencing a drastic staffing shortage, and its employees are already stretched thin. Accordingly, it does not appear that the City has made serious efforts to explore possibilities for developing the capacity to assign calls directly to BHU, NGOs, service providers or other non-police responders. It is our understanding that BOEC has attempted to receive funding for a nurse triage line, without success. While we sympathize with BOEC’s shortages, the City must attempt to reach compliance with this Paragraph before it is determined that doing so is not feasible.

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Technical Assistance

The City and BOEC should evaluate the possibility of assigning calls directly to NGOs or community service providers as required by this paragraph, or to directly dispatch BHU to calls involving known participants in BHU programs. The City and BOEC should document these efforts, and coordinate with BHUAC to identify the obstacles to achieving direct service dispatch, and look into possible solutions.

114. Within 180 days of the Effective Date, the City will complete training of all BOEC Dispatchers in Crisis Triage. The City, with the advice of the ABHU Advisory Committee, shall develop ongoing training for BOEC Dispatchers.

Status

Partial compliance – ongoing obligation

Analysis

BOEC has developed, but not implemented, required training.
In coordination with PPB, BOEC has now completed training to reflect updates to the BOEC protocols. BHUAC approved the training. COCL and DOJ experts also reviewed the training. The training appears to be well developed, but due to limitations in BOEC’s labor contract, it is unable to complete the 16 hours of training until 2017 Q1. The training will be divided into two, 8-hour sessions to accommodate the labor requirements. Although the original 180-day deadline has long passed, we appreciate BOEC’s work in preparing the trainings to address the changes in protocol, and the difficulties in scheduling training during a time of staffing shortfalls.

Technical Proceed with training dispatchers as currently scheduled. Assistance

115. Within 180 days of the Effective Date, the City shall ensure Crisis Triage is fully operational to include the implementation of the policies and procedures developed pursuant to the above paragraph and operation by trained staff.

Status

Partial compliance, improvement – ongoing obligation

Analysis

Though BOEC successfully diverts many calls to alternative services, Crisis Triage is not fully operational.
The core components of this Paragraph are progressing, as BOEC has developed additional protocols to track PPB’s alternative crisis intervention model, and has developed training in coordination with BHUAC that is scheduled to be delivered in two sessions over the ensuing months. BOEC is successfully transferring appropriate calls to MCCL. Some aspects of fully operational Crisis Triage are lacking, as stated above in the analysis of Paragraph 113.
BOEC’s successful implementation of fully operational Crisis Triage will require

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an evaluation once training is complete, and a comparison of BOEC data with data captured through PPB’s usage of the Mental Health Mask.
The success of PPB’s crisis response model relies on capturing data. BOEC’s coding system could be improved to assist in better capturing data regarding the number of calls that have a mental health component. BOEC’s previous code for “mental” calls was eliminated after it was determined that the term was offensive, and it was requested by providers that calls not be specifically noted as calls involving mental illness. Now, the only code for calls with a mental health component is the “ECIT” code for calls that meet the criteria for dispatch of an ECIT officer. BOEC may recode as a call progresses due to changing information. A welfare check may be recoded to an ECIT call, if it is determined that ECIT involvement is called for. It appears that BOEC may only track ECIT calls that were initially dispatched as ECIT calls, as compared to calls that originated as a different call type. Capturing the information regarding frequency of conversion to ECIT by original call type could provide insight into the type of calls that frequently require ECIT involvement.
BOEC purposefully does not attempt to capture other calls that might involve a mental health component but do not call for an ECIT Officer. This is an apparent effort to avoid stigmatization of a group of people through assignment of a label, which may be unwarranted. While we appreciate the desire to avoid stigmatizing people, best practices in the C-I Team model seek to reduce stigmatization about mental illness by acknowledging how common such conditions are and by encouraging Crisis Intervention Officers to have contact with people with mental health disabilities both during a crisis and when the person is not in crisis. It is critically important to know how many mental-illness-related calls PPB Officers are asked to respond to. A fully operational Crisis Triage will include better mechanisms for capturing data regarding these calls.

Technical Assistance

BOEC may consider options such as a code modifier on all calls that the call taker, dispatcher, or officer at the scene believes may contain a mental health component. For example, a “welfare check” call (“WELCK”) could be modified to “WELCKE” call, if it is suspected that an ECIT Officer may be necessary. This is similar to the code modifiers BOEC currently employs by adding “W” for “weapon” if it is known that the call involves a weapon. It should be clear to call takers, dispatchers, and PPB Officers, however, that they are in no way expected to distinguish aberrant behavior secondary to substance use from crisis unrelated to substance use.

VII. EMPLOYEE INFORMATION SYSTEM
116. PPB has an existing Employee Information System (“EIS”) to identify employees and design assistance strategies to address specific issues affecting the employee. See PPB Manual 345.00. PPB agrees to enhance its EIS to more effectively identify at-risk employees, supervisors and teams to address potentially problematic trends in a timely fashion. Accordingly, within 90 days of the Effective Date, PPB shall:
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a. Require that commanders and supervisors conduct prompt reviews of EIS records of employees under their supervision and document the review has occurred in the EIS performance tracker;
b. Require that commanders and supervisors promptly conduct reviews of EIS for officers new to their command and document the review has occurred in the EIS performance tracker; and
c. Require that EIS staff regularly conduct data analysis of units and supervisors to identify and compare patterns of activity.
117. PPB agrees to collect data necessary to conduct these analyses at supervisor- and teamlevels.

Status

Partial Compliance – significant improvement, ongoing obligation

Analysis

Portland Police Bureau has made significant progress in its implementation and utilization of its EIS in the past year. Now that PPB is using EIS for reviews more regularly, PPB must take the next steps in data analysis to effectively identify and address at-risk employees, supervisors, and teams.
Portland Police Bureau has made concerted efforts to increase EIS utilization. PPB’s EIS Administrator and Professional Standards Division have actively sought out training for supervisors charged with using the EIS system for their subordinates. Likewise, the EIS Administrator and PSD have issued reminders to PPB personnel concerning their obligations to use EIS.
116(a): performance reviews:
This past year, the EIS Administrator’s data show supervisors’ high rates of review of officers under their command during six-month performance evaluations: 2015 Q3: 77.6%; 2015 Q4: 85.1%; 2016 Q1: 81.7%; and 2016 Q2: 80.5%. See PPB 2015 Q3 2016 Q2 Compliance Reports, at Par. 116-117. Portland Police Bureau employed a sampling methodology and excluded from its sample Officers on extended leave, Officers reviewed by the Training Division (see disagreement noted below), and Officers who worked directly for the Portland Police Association. The City must address any proposed exclusions in connection with the Parties’ Paragraph 175 discussions of potential modifications of the Settlement Agreement.
Prior to the second quarter of 2016, PPB did not review its Sergeants’ EIS entries in connection with performance evaluations. See PPB 2016 Q2 Compliance Report, at Par. 116-117. At the time of its first measurement, PPB supervisors had completed EIS reviews of only 53.1% of PPB’s Sergeants. Based on PPB’s frequent reminders to supervisors and the pattern for successfully increasing Officer-level reviews, we anticipate this Sergeant-level review increasing over time.
116(b): new assignees reviews:
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evidencing supervisors had reviewed 49% of Officers’ EIS entries as required by Paragraph 116(b). This past year, the EIS Administrator’s data show supervisors’ high rates of review of Officers newly under their command: 2015 Q3: 94%; 2015 Q4: 94%; 2016 Q1: 99%; and 2016 Q2: 84%. See PPB 2015 Q3-2016 Q2 Compliance Reports, at Par. 116-117. These are commendable compliance rates.
116(c), 117: unit and supervisor analysis:
Based on on-site reviews of the system and an assessment of PPB’s data, we conclude that the EIS system is not set up to provide a clear analysis of unit and supervisor levels. EIS does not give a straight-forward comparison by group and shift, as the Settlement Agreement intends. As explained to us, in order for an EIS Administrator to compare teams or groups, the Administrator must identify a single Officer from one group, look up his or her statistics relative to his or her assigned group; then the Administrator must do the same for an individual Officer from the comparative group. In other words, the EIS Administrator reverse-engineers a group-level comparison. While the ingenuity is laudable, it is hardly practical. Nor is it complete. The EIS allows comparison only at higher levels of command by this reverse engineering methodology. It does not permit even an ad hoc comparison of specialized teams. For example, the comparison looks at the whole of the Tactical Operations Division (“TOD”), but not the units within TOD, such as the Gang Enforcement Team that uses force with greater frequency. Nor does the reversed-engineered comparison capture a supervisor’s effect on his or her subordinates, as the Settlement Agreement intends.
116: Effectively identifying and addressing at-risk employees, supervisors, and teams:
We agree with COCL that although PPB could have used its available data to identify patterns, PPB did not do so in its supporting documentation or Quarterly Summary Report. See COCL Compliance Report, January through June 2016, at Par. 116. We observed several EIS discussion tracker entries for Officers whose actions had resulted in civil liability or career-ending behavior. Discussion tracker is the narrative portion of EIS in which the EIS Administrator lists a threshold action or actions that require the supervisor to consult with the subject Officer. The supervisor then records the results of the conversation in the discussion tracker. This creates a record over time on interactions to praise or critique Members. Most discussion tracker entries we saw were benign, i.e., merely stating matter-of-factly a force incident that gave rise to an EIS entry. In reviewing one Officer’s discussion tracker, however, even after the Officer’s use of an ECW gave rise to both a finding of civil liability and an internal debriefing on proper cuffing during use of an ECW, the supervisor entered praise in the discussion tracker: “The review (of the civil liability finding) did not find any areas for concern. [The Officer] did not have any questions and was receptive to the review.” Rather than address poor behaviors, the supervisor used EIS to validate them. Similarly troubling was the case of one PPB Sergeant whose career ended. Prior to his termination, his EIS discussion tracker showed notations for “no concerns” on three occasions. The Sergeant had a record of use of alcohol and drug use that ultimately
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ended his career. As PPB’s EIS matures, PPB should utilize the EIS to mitigate risk as the Settlement Agreement intends —both for Officers and for the public.
PPB’s EIS should also draw data from its training database and its traffic incident database. PPB does not currently use these data sources for EIS, though PPB uses them independently.
After numerous face-to-face meetings, we recently approved Policy 345.00 governing EIS. We would be eager to revisit the EIS policy; however, to address the suggested thresholds we discuss in our assessment of Paragraphs 118 and 119, below.

Technical Assistance

As COCL suggests, the Parties should come together to discuss the purpose behind EIS, i.e., its use for risk mitigation. EIS is an expensive and time-consuming task. Portland Police Bureau’s significant investment of resources and organizational dedication to the collection of data is worthy of a deeper dedication to data analysis. Portland Police Bureau should be able to achieve a better return on its investment.

As we stated in 2015, PPB must collect timely Force Data Collection Reports and After Action Reviews for officer involved shootings, as described in Paragraph 74, above, to come into substantial compliance with the Paragraph 117, and PPB must collect accurate force data from all Members in order to conduct supervisor- and team-level analyses.

118. PPB shall continue to use existing thresholds, and specifically continue to include the following thresholds to trigger case management reviews:
a. Any officer who has used force in 20% of his or her arrests in the past six months; and
b. Any officer who has used force three times more than the average number of uses of force compared with other officers on the same shift.
119. Within 90 days of the Effective Date, PPB shall add one additional threshold to trigger case management review any officer who has three uses of force in a one-month period.

Status

Partial Compliance – significant improvement, ongoing obligation

Analysis

We agree with COCL that the parties should revisit the thresholds for EIS review to make the system more effective. Portland Police Bureau has improved its EIS compliance in implementing the required thresholds for paragraphs 118 and 119, though these triggers did not always result in management reviews by members’ supervisors as required.
In our 2015 Report Card, we noted the low level of referral of EIS triggers to supervisory reviews (two referrals for 129 triggers). See PPB 2015 Q1 Compliance Chart, Items 118-119. In response, PPB provided a more in-depth, written explanation of its referral process for referral of EIS triggers for supervisory
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review. See “EIS Alert Process Explanation,” PPB 2015 Q3 production. Portland Police Bureau also met with COCL and DOJ on several occasions to discuss the EIS. Based on these documents and discussions, we found that PPB currently triggers a review when a Member crosses the Settlement-Agreement-defined thresholds. However, PPB’s review may be truncated within the administration of the EIS, and approved by PSD, without reaching a “management review” by the Member’s supervisor. Often this is perfectly explainable. For example, a single PPB Member will trigger the same threshold each morning when the EIS system is reset, even though the trigger is based on the same data as the previous day. Other times, PPB has created criteria to exclude Officers from further review that the Settlement Agreement does not permit. These included excluding from supervisory review Officers whose force ratio is greater than his or her peers (Par. 119(b)) only because the Officer transferred to a unit that uses lower levels of uses of force. Portland Police Bureau also excludes Officers who serve within their probationary period and are still subject to Training Division reviews. These exclusions violate the Settlement Agreement. The exclusions also skew the data for the teams to which the excluded Members belong. Accordingly, PPB must stop these exclusions and use the EIS for “any officer.”
Portland Police Bureau has set up a redundant review system to try to ensure that if a responsible unit manager or supervisor declines to intervene with a Member after an EIS trigger, then the PSD reviews that declination. Overall, PPB declines supervisory review for 91% of the triggers EIS produces. While PPB views its corollary 9% rate of supervisory review as high (PPB 2016 Q2 Quarterly Summary Report), we agree with COCL that “supervisors are more familiar with the officer and are in a better position to assess the officer than are the EIS Administrators.” See COCL 2015 Q3/Q4 Compliance Assessment. See also DOJ 2015 Report Card at Par. 118-119, technical assistance. See also TECHNICAL ASSISTANCE STATEMENT: Employee Information System, Prepared by ROSENBAUM & WATSON, LLP, Compliance Officer and Community Liaisons, January 4, 2016, at pp. 4-5.
Moreover, the time between the trigger and an intervention is too long to be effectively “early.” Portland Police Bureau’s flow chart provides for 60 days between reaching a threshold and providing an intervention. DOJ, COCL, PPB Discussion, Feb. 8, 2016.
Portland Police Bureau’s complex system could be made less time and resource consuming if there were more effective triggers. In our meetings with PPB, we commented that the triggers the City had negotiated during the Settlement Agreement process were so high as to be ineffective. An EIS, we recommended, should seek to find the behavioral outliers among a Member’s peers. This, too, is consistent with COCL’s assessment. See COCL Compliance Report, January through June 2016, at Par. 118-119.
Commendably, PPB engaged in its own study seeking to evaluate the efficacy of the current PPB EIS system. Portland Police Bureau presented its study asserting that PPB’s EIS is five times more predictive than the general population of
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Officers, but generates nine false positives for every true positive. See May 24, 2016 meeting. Portland Police Bureau set as a threshold for its study an adverse event, which PPB defined as: (a) an event that caused the City to pay more than $5,000, or (b) an event that resulted in the member receiving a day or more suspension. Id. Portland Police Bureau found that only 5% of Officers flagged by EIS went on to experience an adverse event compared with 2% who were not flagged by EIS. Id. As PPB presented its study to us, PPB questioned the ability of EIS to accurately predict poor outcomes. Id. Like COCL, we appreciate PPB’s willingness to be introspective about its EIS. We suggest, however, that PPB’s study could lead to a better refinement of PPB’s EIS. Rather than discount the utility of any EIS, the parties should seek thresholds that could best predict poor outcomes.
In consultation with COCL, we recommended that PPB adopt more useful thresholds than those negotiated by the City’s attorneys in Paragraph 119. Specifically, COCL recommended, and DOJ and its consultant supported, adding the following thresholds to Policy 345.00:
• Officer Detail Force Ratio: A sworn Member has a force ratio that is in the top 15% of their detail in the preceding three (3) months.
• Officer Precinct Force Ratio: A sworn Member has a force ratio that is in the top 15% of their Precinct in the preceding three (3) months.
• Detail Force Ratio: A detail has a force ratio that is greater than 5% above the average detail force ratio in the preceding three (3) months.
• Precinct Force Ratio: A Precinct has a force ratio that is greater than 5% above the Bureau-wide average in the preceding three (3) months.
• Force Ratio: A sworn Member’s force ratio is greater than or equal to 5% of his or her arrests in the preceding three (3) months.
• Complaint in Same Category: A Member receives two (2) or more complaints for events in the preceding three months.
• Traumatic Incidents: A Member experiences two (2) or traumatic incidents in the preceding thirty (30) days
Unfortunately, PPB demurred from our request. While the Settlement Agreement does not require these more nuanced thresholds, the few thresholds contained in the Settlement Agreement may not serve to meet the intended purpose of effectively identifying at-risk employees, supervisors, and teams. Par 116.
Technical As we stated in 2015, supervisors are more familiar with Officers in their chain of Assistance command and deserve the opportunity to utilize the EIS for career-saving and
career-enhancing interventions.
We agree with COCL that PPB must improve its messaging around its EIS system to its own members. See COCL Compliance Report, January through June 2016, at Par. 118-119. COCL’s surveys of Officers found that Officers do not have
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confidence in the system. Id. Discussions with Officers indicate that they feel EIS is designed to punish them. Id.
Portland Police Bureau must not exclude from its EIS Administrator review or supervisory review officers who have moved between assignments and meet a threshold due to the change in force ratios relative to their new units. Portland Police Bureau also must not exclude from EIS tracking and review probationary Officers who are also subject to supervision of the Training Division.

120. Within 90 days of the Effective Date, PPB shall identify and train a second EIS administrator. This individual may be assigned to other tasks within the Professional Standards Division or as otherwise needed.

Status

Substantial Compliance

Analysis

Portland Police Bureau’s principal EIS Administrator is tremendously dedicated and knowledgeable about PPB’s EIS system. A Lieutenant from PPB’s PSD serves as both the supervisor for the EIS Administrator and the secondary EIS Administrator.

Technical Assistance

We agree with COCL that the EIS Administrator should memorialize his vast knowledge and experience in a training document for the benefit of any future EIS Administrators. The EIS Administrator has already produced documents to us that may serve as a basis for such a training document. See “EIS Alert Process Explanation,” PPB 2015 Q3 production.

VIII. OFFICER ACCOUNTABILITY
PPB and the City shall ensure that all complaints regarding officer conduct are fairly addressed; that all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. The City and PPB seek to retain and strengthen the citizen and civilian employee input mechanisms that already exist in the PPB’s misconduct investigations by retaining and enhancing IPR and CRC as provided in this Agreement.

Status

Partial Compliance – substantial compliance issues

Analysis

PPB and the City have made certain advancements in the processing of complaints under the existing system. However, the City has not brought to fruition necessary comprehensive accountability reform as we suggested—and the City agreed to undertake—in May 2015.
Going forward with a new chief, PPB must right the ship to earn both community and officer faith in the system. The City’s current effort to engage
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stakeholders and the community in direct dialogue about comprehensive accountability reform is a significant step in the right direction.
PPB’s Prior Non- and Partial-Compliance:
In our 2015 report card, we reported that the City and PPB failed to achieve compliance with most accountability provisions. See Settlement Agreement Compliance Status Assessment Report pp. 63-81, 90 ECF No. 105-1 (Sept. 10, 2015). In that Report, we found the City and PPB non-compliant with Paragraphs 124, 128, and 130. Id. And, we found PPB was only partially complaint with Paragraphs 121, 123, 125, 127, 129, 132, 133, and 135-140. Id. We lay out in our compliance review for the following paragraphs, PPB’s and IPR’s progress and hurdles in implementing a system for full and fair investigations of misconduct complaints. PPB and IPR have been addressing many challenges:
• tracking timeliness of investigations (Par. 121); • performing concurrent criminal and administrative investigations (Par. 123); • working on—though not resolving—the 48-hour rule (Par. 124); • issuing many Communication Restriction Orders (“CROs”) when required
(Par. 125); • beginning a process for a witness officer’s walk through of critical incidents
(Par. 126); • Seeking contemporaneous interviews of officer involved in critical incidents
(Par. 127); • adding IPR investigators (Par. 128); and • providing greater direction to Police Review Boards (Par. 132).
Still, PPB and IPR have not overcome all challenges to ensure officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent:
• the former Chief’s covering up alleged misconduct (Sec. VIII); • the former Chief’s boycotting of CRC (Sec. VIII); • failing to hold officers accountable in certain circumstances (Sec. VIII, Par.
129); • subverting CROs by sharing videos (Par. 125); • permitting a perennially obstreperous Captain to discourage the filing of a
complaint (Par. 130); and • begrudgingly addressing a liability finding, albeit absent assistance from the
very plaintiff’s attorney who sought that remedy (Par. 133).
Ultimately, comprehensive accountability reform should address current structural redundancies and inefficiencies, as well as a lack of faith in and efficacy of the
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accountability systems.
Former Chief’s Alleged Off-Duty Shooting and Aftermath:
Tragically, conduct by the former PPB Chief illustrated PPB’s accountability failures. The current Chief and current command staff were not a party to the former Chief’s conduct.
In May 2016, we sent representatives to meet with the then Chief about accountability compliance, globally. However, on the day we arrived, he was suspended and has not returned. Around that time, we learned of an off-duty incident and an on-duty cover up.
On Thursday, April 21, 2016, the then Chief, while on vacation, discharged a rifle injuring his friend. That same day, the then Chief made statements to a Harney County Sheriff’s Deputy investigating the incident, asserting that it appeared that the shooting victim’s injury was self-inflicted.9 The then Chief did not immediately report the incident as required.10 The then Chief subsequently called the shooting victim and apologized for causing the injury.
Four days after the incident, on Monday, April 25, 2016, the then Chief reported the shooting to Police Commissioner—who is also subject to the Settlement Agreement. That same day, the then Chief told the then PPB Assistant Chiefs about the discharge and injury. This group included the then Assistant Chief, who was in command of investigations into events such as the reported discharge. Later that day, the then Chief also informed the former Captain who supervised PPB’s Professional Standards Division, i.e., the internal affairs unit, of the discharge and injury. None of these individuals—not the Police Commissioner, nor the then Assistant Chief in charge of investigations, nor the then internal affairs Captain— initiated an administrative investigation as required by the Settlement Agreement. See Sec. VIII. The then Chief told his subordinates that his weapons discharge would be handled as a private, personal matter. He undercut the usual accountability systems and placed his subordinates in an untenable situation.
It is undisputed that neither PPB nor City personnel whom the then Chief informed of the shooting reported anything about the matter to IPR. Indeed, the IPR director launched an independent investigation on his own accord, only after learning of the
9 The existence of a criminal investigation does not obviate PPB’s and the City’s obligation to concurrently conduct an administrative investigation. See Par. 122. Failure to conduct the administrative investigation concurrently, absent evidence of a specifically enumerated exception, is also a violation to Paragraph 122. 10 PPB Directive 315.00, Procedure (8), requires that members “immediately notify an on duty supervisor . . . if they become aware they are a suspect in a law enforcement investigation.” PPB has previously suspended, investigated, and disciplined officers for off-duty shootings. See, e.g., Dirk VanderHart, “Did Larry O'Dea's Shooting Mistake Get Special Treatment,” The Portland Mercury, June 1, 2016, available at http://www.portlandmercury.com/news/2016/06/01/18155701/did-larry-odeas-shooting-mistakeget-special-treatment.
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allegations of the then Chief’s firearm discharge through The Willamette Week’s twitter feed on May 20, 2016. This public press account was the first notice of the incident that IPR received.11 Up to that point, the City and PPB failed to issue communication restriction orders and failed to collect evidence. The delay prejudiced the IPR investigation of the incident and its aftermath.
The Police Commissioner’s and former Chief’s failure to act obstructed a “fair and expeditious resolution” of the alleged misconduct and failed to hold officers “accountable pursuant to a disciplinary system that is fair and consistent.” See Section VIII. Rather than timely fulfilling this obligation for the Defendant, a city official texted: “Don’t worry chief we got your back.” Failure to disclose the shooting to IPR prevented IPR from initiating a “meaningful independent investigation.” See Paragraph 128. The former Chief’s conduct discouraged of PPB personnel from reporting misconduct, making a misconduct complaint, or cooperating with an investigation of misconduct. See Paragraph 130. Under the former Chief, PPB failed to consistently apply its own policies on the reporting and investigation of off-duty firearm discharges.12 See Paragraph 172 (PPB must
11 Under City Code 3.21.070, IPR is authorized to initiate, monitor, and conduct administrative investigations. According to IPR policy, when there is an allegation of possible misconduct by a Police Bureau member of the rank of Captain or higher, IPR will conduct an independent investigation. 12 While we do not reach a conclusion on what the outcome of the administrative investigation should be, the undisputed facts give rise to the need to determine compliance with the following non-exclusive list of PPB Directives: Directive 310.00, Conduct, Professional.
• “Police Bureau members, whether on duty or off duty, shall be governed by the reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach or discredit upon the Police Bureau or the City of Portland.” • “Members shall not … make any written or oral statements which would impair or diminish the orderly and effective operations, supervision, or discipline of the Police Bureau.” 310.50, Truthfulness • “No member shall knowingly or willfully be dishonest or untruthful in giving testimony, in rendering a report, in any official oral or written communication, or in giving any statement about actions taken that relate to the member's own or another member's employment or position.” • “Members will not make any false statements to justify a criminal or traffic charge, or seek to unlawfully influence the outcome of any investigation.” 315.00, Laws, Rules, and Orders • “Members shall immediately notify an on duty supervisor when cited for a violation, other than a traffic infraction, when arrested for a criminal offense, if their driver’s license is suspended, if they become subject of or violate a restraining order, or when they become aware they are a suspect in a law enforcement investigation.” 316.00, Alcohol Use
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“apply policies uniformly and hold officers accountable for complying with policy and procedure”).
Boycotting CRC:
On March 30, 2016, a private civilian attending a CRC meeting threw water at a CRC member following a heated discussion. In response to the water throwing, the former Chief wrote a letter to IPR stating that he did not support having PPB personnel attend future CRC meetings. See Memo from Chief Larry O’Dea to IPR Director Constantin Severe, “Citizen Review Committee Workplace Environment,” Mar. 31, 2016; see also Maxine Bernstein, “Police chief, police union urge officers not to attend citizen review panel hearings,” Oregonian, April 4, 2016, available at http://www.oregonlive.com/portland/index.ssf/2016/04/police_chief _police_union_urge.html. This position—equating to PPB’s temporary institutional boycott of CRC—not only undercut public confidence in the accountability systems, but violated the City and PPB’s pledge of “retaining and enhancing” CRC in Settlement Agreement Section VIII.
Case Study, IA 2014-C-0265:
In our 2015 report card, we mentioned IA case 2014-C-0265 as an example of a lengthy investigation under paragraph 121. Enhanced Amicus expressed to the Court particular interest in that case 2014-C-0265. The case concluded in December 2015. Now that the case is concluded, we address it as a case study on compliance with Section VIII’s requirements that PPB and the City ensure that, “all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable . . ..” Section VIII.
In short, the key to the entire allegation was whether the first officer to initiate the stop had a constitutional basis to stop a juvenile subject. IPR conducted the investigation of the incident. PPB wrote the findings. PPB was critical of the quality of IPR’s investigation. For example, the IPR investigator did not ask the sole, uncharged juvenile witness his/her location, thus permitting PPB to discount the witness’ statement. Finding Memo, IA #2014-C-0265, p. 19.
Two separate judges presided over separate criminal trials stemming for the stop in
• “Members consuming alcoholic beverages off duty shall limit the quantity consumed so as not to be impaired to any degree, or have the odor of alcoholic beverages on their breath, or about their person, upon reporting for duty.” 330.00, Internal Affairs, Complaint Intake and Processing • “Bureau members who become aware of possible misconduct will report such allegations to any of the following personnel: Any supervisor within or outside the chain of command, Office of the Chief of Police, Personnel Division, Internal Affairs, Bureau of Human Resources, City Auditor’s Independent Police Review Division, and/or City Attorney’s Office.”
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question: one for the juvenile subject and another for his brother. Both judges definitively ruled that the first officer did not have a constitutional basis to stop the juvenile. IPR and PPB had the benefit of the judges’ rulings when conducting the investigation and drafting the administrative findings: “In order to sustain the allegation I must take the additional step of showing that [the first officer] was on notice that stopping someone without sufficiently particularized reasonable suspicion is a violation of law and therefore also of the Police Bureau’s rules.” Finding Memo, IA #2014-C-0265, p. 7, February 8, 2016. PPB focused on the word “particularized” from the judges’ ruling—equating that term with suspicion of the particular individual stopped. Id. at 8. PPB asserted that the first officer was not trained on the “particularized” requirement for a reasonable suspicion. In so doing, PPB excluded from its consideration the officer’s lack of constitutionally required subjective or objectively reasonable basis to initially stop the juvenile. Moreover, a careful examination of the training records on which PPB relied do not support PPB’s conclusion that the officer did not have knowledge of the individualized suspicion requirement. The training material actually repeatedly stated that the officer must have a legal basis to stop “that person.” “Thus, statutorily, an officer may stop and detain a person for a non-traffic infraction when they have reasonable grounds that an infraction was committed by that person.” Advanced Academy 2011-2, Person Encounters (emphasis added) at p. 6. That same training incorporated PPB’s then-existent stop and detention policy 153.039, which likewise required that officers have a reasonable suspicion that “that person” committed an offense. Id. at p. 6. “The officer must subjectively believe that the person stopped has committed a crime, and that belief must be objectively reasonable under the circumstances.” Id. at p. 7 (emphasis added). Accordingly, PPB’s rationale to justify a non-sustained finding—that the initial officer was not aware of the legal requirement for a stop—is incorrect. PPB acknowledged as much: “I can see that [the officer’s] record shows she attended the AA 2011-2 law session, which you sent to us, and which does covered to topic of reasonable suspicion.” Email from IPR Investigator Casey Biederich to CAPT Bryan Parman, January 7, 2016 (emphasis added).
PPB’s interaction with the juvenile led to a force incident, one in which the juvenile actively fought with two officers. The juvenile’s actions were dangerous. A Sergeant who had no part in the unconstitutional stop, came upon the scene of the active fight, and proceeded to aid the officers. The juvenile fell on the Sergeant’s leg tearing the Sergeant’s Anterior Cruciate Ligament (“ACL”) and incapacitating him for an extended period of time. According, what began with an unconstitutional stop led to both the arrest (and later acquittal) of the juvenile and a serious, career-threatening injury to the Sergeant. PPB did not hold the officer who made the initial stop accountable.
Technical As discussed later, herein, PPB is now undertaking a comprehensive accountability Assistance reform. PPB must bring reform to fruition in a meaningful fashion with the support
of community and City stakeholders.
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A. Investigation Timeframe
121. PPB and the City shall complete all administrative investigations of officer misconduct within one-hundred eighty (180) days of receipt of a complaint of misconduct, or discovery of misconduct by other means. For the purposes of this provision, completion of administrative investigations includes all steps from intake of allegations through approval of recommended findings by the Chief, including appeals, if any, to CRC. Appeals to CRC shall be resolved within 21 days.
123. If PPB is unable to meet these timeframe targets, it shall undertake and provide to DOJ a written review of the IA process, to identify the source of the delays and implement an action plan for reducing them.

Status

Partial compliance – ongoing obligation

Analysis

The City’s plan to address Portland’s police accountability system in a more holistic fashion, including the length of time to complete investigations, is in flux right now. The City has proposed various ordinance changes, but many have met some level of opposition. The issues remain unresolved.
Comprehensive Accountability Reform:
In May 2015, we issued the City an initial assessment of PPB’s accountability systems and timelines. We stated that “the City must address in a more global fashion IPR’s and PSD’s timelines, division of labor, and redundancies.” The City was responsive, albeit through a lengthy process. The City convened its own work group from June to December 2015 to address the task of revising the accountability systems. See PPB 2015 Q4 Compliance Report, at Par. 121. On January 7, 2016, the City first convened a focus group comprised of both City stakeholders and community members. See Officer Accountability Focus Group Meeting Notes January 7, 2016.
As COCL describes in its assessment, the focus group ultimately produced a memorandum reporting on 10 key areas of discussion, including a simplified flowchart for the accountability process, a revised system to ensure all citizen complaints are investigated, clarification of disposition terms, the responsible entity for findings, and reconsidering the role of the Citizens Review Committee. See COCL Compliance Report, January through June 2016, at Par. 121. See also Memo from Mark Amberg, Chief Deputy City Attorney, to Mayor Charlie Hales, June 22, 2016.
The focus group’s work resulted in a proposed ordinance change, which, among other things, would have merged CRC hearings into the Police Review Board (“PRB”) process with more limited public involvement. On August 1, 2016, the City presented the changes through a town hall. Many stakeholders expressed opposition and, the next day, the Mayor withdrew the proposed ordinance from consideration. The City Auditor then proposed a separate ordinance dropping the

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merger of the CRC and PRB but retaining a savings of labor by dividing CRC into three-person review panels akin to a Federal Court of Appeals. See Proposed Ordinance 3.20.140 Police Review Board. Additionally, the Auditor proposed to make the PRB process open, in part, to the complainant. Id. The Auditor’s proposal would also require that the case investigator propose findings and recommend discipline based on the discipline matrix. Id. The Auditor’s proposed ordinance revisions are still pending with the City Council.
We agree with COCL that the Auditor’s proposed model would significantly improve the timeline for investigations by moving the proposed findings from the Responsible Unit manager to the case investigator. Under the current system, the investigator who is most familiar with the case and credibility determinations of the witnesses does not reach a conclusion. Rather, the case file goes to the Responsible Unit manager for the subject officers. The Responsible Unit manager must learn anew the entire case file without the benefit of any personal interactions with the interviewees. This is both time consuming and counterproductive. Under the proposal, the Responsible Unit manager would still have the options to controvert—that is, to write why he or she disagrees with the investigator’s proposed findings—or concur with the proposed findings.
Timeliness:
Like last year, PPB presented data and memoranda identifying case deadlines and explaining, in part, some of those that exceeded the 180-day deadline. PPB reports that 41% of closed cases exceeded the 180-day deadline, attributable to both PPB and IPR. See PPB 2016 Q1, Q2 Compliance Report, at Par. 121. Like before, some extensions beyond 180 days were perfectly reasonable. A few were unreasonably lengthy or without sound basis. To PPB’s credit, PPB has worked well to track sources of delays and addressed them. See 180 Day Memos 2016 Q2. However not all explanations are sound. As COCL point out, PPB does not always articulate the reason for some delays, stating instead: “this won’t happen again,” or “Moving forward, such delays will not occur absent exceptional circumstances of which would be rare at best.” See COCL Compliance Report, January through June 2016, at Par. 123.
CRC Timelines:
As COCL reports, appeals to CRC are currently taking an average of 149 days, with new cases scheduled for hearing 6 months out, not accounting for subsequent delays. While there is criticism of the Settlement Agreement’s 180-day deadline (including CRC appeals), in 2015 only 5 cases went to CRC appeals. See Interview with Auditor’s Office, August 17, 2016. Accordingly, aside from a small handful of cases, CRC appeals do not impede compliance with the 180-day deadline. The Parties should address a means of cordoning off these relatively few cases from the 180-day deadline, while still ensuring prompt resolution, even for appeals.
Technical We identified late officer interviews as a source of delays in our 2015 report card. Assistance This continues to require management direction to set the expectations for timely
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interviews.
The City’s proposed change to consolidate findings with the investigator should address, in large part, the other source of delay we noted in our 2015 report card: lengthy Responsible Unit manager reviews.
As discussed in our May 14, 2015 meeting and herein, the City should bring to fruition its comprehensive accountability reform. As we stated in our 2015 report card, PPB’s multi-track system adds to the byzantine structure of administrative investigations and the ensuing delays. As part of a global assessment of administrative investigations, PPB would benefit from simplification of its system.

122. PPB shall conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a concurrent criminal investigation, or as otherwise provided by law, or as necessary to meet the CRC or PRB recommendation to further investigate.

Status

Substantial compliance – ongoing obligation

Analysis

Aside from the former Chief’s and City’s subversion of the timely administrative investigation of the former Chief’s actions, PPB has been timely in conducting concurrent administrative and criminal investigations.
With respect to the former Chief, once IPR learned of the incident, IPR timely initiated an investigation. The criminal investigation, by outside agencies, began before that time. Now, IA case 2016-B-0014, involving the former Chief, is not proceeding concurrently with the criminal investigation. However, this is understandable given that outside criminal investigative agencies possess much of the evidence required to complete the administrative investigation. IPR email, August 8, 2016.
PPB treats investigations of officer involved shootings as both criminal and administrative investigations. PPB has concurrently investigated both officer involved shootings in the past year. See IA 2015-B-0031, IA 2016-B-0015.
Likewise, we concur with COCL’s assessment that PPB has presented data showing concurrent start dates for most criminal and administrative investigations in 2016. See COCL Compliance Report, January through June 2016, at Par. 122. Additionally, IPR provided data indicating that PPB timely processed administrative investigations concerning allegations of improper sexual conduct by officers. Improper Sexual Conduct, Feb. 17, 2015 to Aug. 17, 2016, report dated Aug. 30, 2016. Moreover, PPB has appropriately reported when an outside criminal investigation agency has specifically requested that PPB not commence its administrative interviews, thus triggering PPB’s tolling of the administrative investigation. See PPB 2015 Q4 Report, Par. 122.

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Technical Assistance

We concur with COCL that PPB should provide an explanation for the anomalous case in which PPB did not begin an administrative investigation for a month after starting a criminal investigation, and provide such explanations in future data productions.

B. On Scene Public Safety Statements and Interviews
124. Within 90 days of the Effective Date, the City and PPB shall review its protocols for compelled statements to PSD and revise as appropriate so that it complies with applicable law and current professional standards, pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). The City will submit the revised protocol to DOJ for review and approval. Within 45 days of obtaining DOJ’s approval, PPB shall ensure that all officers are advised on the revised protocol.

Status

Partial compliance – ongoing obligation

Analysis

The City, PPA, Multnomah County District Attorney, and DOJ continue to discuss issues surrounding the 48-hour rule, required reporting, and when to compel statements from involved officers. The City is considering a new collective bargaining agreement with the PPA that addresses, in part, the 48hour rule, but does not address all aspects of the pending accountability issues.
As we stated in last year’s report card, officers must complete routine force reports and may not assert a Garrity protection unless the authoring officer has an objectively reasonable belief that he or she will subject him or herself to criminal self incrimination. See Department of Justice Letter to Mayor Michael McGinn, Nov. 23, 2011 (containing our prior guidance on this issue), available at http://www.justice.gov/crt/about/spl/documents/seattlepd_TA_11-23-11.pdf.
“[C]urrent professional standards,” require that, absent incapacitation, involved officers provide on-scene public safety statements limited to pre-defined questions tailored to exigent safety needs, and that this is distinct from a full administrative interview.
If a compelled interview is necessary, the administrative interviews should be separate from criminal investigators; however, administrative investigators may be present for non-compelled criminal interviews. Compulsion, and its concomitant Garrity protection, should not have to apply to witness officers. Witness officers have no objectively reasonable fear of self incrimination.
After the May 24, 2016 non-fatal officer involved shooting, investigators conducted an on-scene walk through with a witness officer and his attorney from the PPA. See IA 2016-B-0015; Par. 125 analysis, herein. This did not equate to a public safety statement as the walk through occurred three hours after the event and the officers who discharged their firearms did not provide an attributed public safety statement.

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Technical Assistance

As we noted in last year’s report card, we recognize that many portions of the Agreement will not only take time to implement, but may require changes to collective bargaining agreements, city code, and/or current city policies. We remain committed to working with the City, PPA, and Multnomah County District Attorney to timely resolve these issues.

125. Separation of all witness and involved officers to lethal force events is necessary in order to safeguard the integrity of the investigation of that event. Immediately following any lethal force event, PPB shall continue to issue a communication restriction order (“CRO”) to all witness and involved officers, prohibiting direct or indirect communications between those officers regarding the facts of the event. The CRO will continue, unless extended further, until the conclusion of the Grand Jury or, if no Grand Jury is convened, until a disposition is determined by the District Attorney.

Status

Partial compliance – significant improvement, ongoing obligation

Analysis

Portland Police Bureau has had dramatically fewer lethal force events in the past year than when our investigation began. For the two major, on-duty lethal force events (one of which resulted in a fatality), PPB successfully managed the investigation and issued most required CROs. The former Chief and City subverted the process that would have produced timely CROs for the former Chief’s use of lethal force; this prevents a substantial compliance rating.
Fatal OIS:
On November 6, 2015, PPB was involved in a shooting outside of the Good Samaritan Hospital. See IA 2015-B-0031. PPB engaged the subject in discussion in attempts to resolve the situation. During the incident, PPB called to the scene ECIT, Crisis Negotiation Team (“CNT”), and SERT teams. The subject was armed with a pistol, which he fired twice into the ground and then raised the gun toward officers who discharged. The Officers’ discharge occurred at 7:15 a.m., and PPB timely began medical care as soon as the subject was cleared from the weapon at 7:22 a.m. PPB’s incident file contained 17 CROs, but did not include a CRO for one witness officer and did not include a CRO for the on-scene ECIT officer. The file PPB provided to us did not contain any FDCRs or 940s for this incident. The file did not contain contemporaneous notes for any on-scene public safety statement or officer walk throughs by involved or witness officers. In this instance, however, there were numerous supervisors on scene who saw the action as it occurred. Interviews of the two officers who used deadly force occurred November 10. The file contained a detailed timeline and several witness statements, including from individuals outside of PPB.
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separate findings based on this incident. Portland Police Bureau formulated two recommendations from these analyses that it should implement: (1) long term acting Sergeants should attend PPB’s Sergeants’ Academy, and (2) involved officers in a justified lethal force incident should not be listed in RegJIN as “homicide suspects.”
Non-fatal OIS:
On May 24, 2016, at 7:26 p.m., BOEC dispatched PPB to a call of an armed subject. See IA 2016-B-0015. Portland Police Bureau diverted a school bus from the scene to protect the public. Id. Portland Police Bureau called to the scene SERT and CNT. Id. The subject fired rounds both inside his home and in the direction of officers. Id. One officer whom the subject fired upon returned fire. Id. Another officer used cover fire while SERT officers used gas canisters to cause the subject to exit, whereupon PPB deployed a police canine. Id. The subject fought with the dog. Id. An officer deployed an ECW, ending the fight with the dog, and officers cuffed the subject. Id. Officer on scene provided the subject care and confirmed he was not shot. Id.
On May 24, 2016 at 11:36 p.m., PPB investigators conducted an on-scene walk through with one witness officer and his attorney from the PPA. See Narrative Text Hardcopy, Scene Walk Through, June 17, 2016. Following the walk though, the witness officer left the scene and provided a recorded interview to detectives. Id. Investigators specifically asked the other two involved officers if they were willing to provide on-scene walk throughs and interviews. See Id. at 185, 215. Both declined. Id.
On May 28, 2016, PPB completed a 940 report. However, the Sergeant who completed the 940 was also involved in the incident. Id. And, though a Lieutenant reviewed the 940 on June 9, 2016, there was no approval beyond that level and no record on the 940 correcting the Sergeant for completing a 940 of an incident in which he was involved. Id.
On May 24, 2016, a witness officer completed a force report for pointing of a firearm. Id. On May 25, 2016, a PPB SERT officer completed a force report for the use of gas canisters. Id. On June 1, 2016, PPB’s involved canine officer completed a force report for the canine deployment. Id. However, the involved officers who actually used lethal force did not complete timely force reports. Id. As has been the standard practice—and one with which we disagreed in last year’s report card—two involved officers filled in force reports days later, referring to the investigation without furnishing a narrative. Id. at p. 000179, 000209.
In our 2015 report card, we admonished the former Assistant Chief for permitting officers to view surveillance videos before providing their statements. We found that permitting the officers to view the video served as an “indirect communication between the officers regarding the facts of the event,” in violation of Paragraph
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125.
Even after that admonishment, PPB showed the FLIR13 video from the May 2016 incident at roll call within days of the incident and before PPB rescinded CROs. Auditor interview August 17, 2016. Though this may have been innocuous in this case, generally the sharing of videos between officers may serve to subvert the effectiveness of the CROs.
On June 7, 2016, the Multnomah County Grand Jury returned a no true bill. See Email from George Burke to Mark Slater, June 9, 2016. This would be the point after which PPB could have rescinded CROs and used the FLIR video. Portland Police Bureau appropriately rescinded the CROs on July 5, 2016. See Memo from CAPT John Brooks, July 5, 2016

Technical Assistance

Videos and distortion of subjective belief/collusion:
We have previously advised that PPB should not permit officers to view video footage before completing use of force reports and providing statements because of the risk of collusive reporting. Moreover, viewing videos before submitting one’s initial report distorts an officer’s subjective belief of what occurred. Accordingly, we have recommended that both involved and witness officers not view any video of the force incident prior to providing a full statement and force report. After providing these, officers should be permitted to view video, if they choose, and submit a supplemental report.

126. PPB shall continue to require witness officers to lethal force events to give an on-scene briefing to any supervisor and/or a member of the Detective Division to ensure that victims, suspects, and witnesses are identified, evidence is located, and provide any information that may be required for the safe resolution of the incident, or any other information as may be required.

Status

Substantial compliance – ongoing obligation

Analysis

In both on-duty lethal force events, a witness officer provided an on-scene walk through. Though these efforts did not cover all “witness officers,” PPB supervisors were at the scene of both uses of lethal force and directed the actions of officers. Their presence may have obviated the need for PPB to require each witness officers to provide a statement.
We agree, however, with COCL that PPB needs to make clear why only one witness officer participated in the walk throughs. Portland Police Bureau’s directive indicates that all the officers at the scene were witness officers. As COCL points out, Directive 1010.10 defines a “witness officer” as a “member who observes or has firsthand knowledge of the events surrounding an in-custody death or the use of deadly physical force by another member, and other than observing

13 Forward Looking Infrared, a thermographic camera typically attached to a helicopter.

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the incident, did not use deadly physical force.”
Technical Portland Police Bureau should clearly delineate that officers who do not use lethal Assistance force are witness officers.
Where there are multiple witness officers, PPB should determine when additional witness officers’ perspectives would be constructive and, if so, then require those witness officers’ walk throughs and statements.

127. In agreement and collaboration with the Multnomah County District Attorney, PPB shall request that involved officers in lethal force and in-custody death events provide a voluntary, onscene walk-through and interview, unless the officer is incapacitated.

Status

Substantial compliance – ongoing obligation

Analysis In both on-duty lethal force events, PPB requested that the involved officers provide walk throughs and interviews. All involved officers declined.

Technical Involved officers’ unwillingness to provide voluntary statements accentuates the Assistance need to resolve protocols for compelled statements vs. public safety statement and
timely force reports pursuant to Paragraph 124.

C. Conduct of IA Investigations
128. Currently, both IPR and PPB’s PSD have authority to conduct administrative investigations, provided that IPR interview of PPB Officers must only be conducted jointly with IA. Within 120 days of the Effective Date, the City will develop and implement a plan to reduce time and effort consumed in the redundant interview of witnesses by both IPR and IA, and enable meaningful independent investigation by IPR, when IPR determines such independent investigation is necessary.

Status

Partial compliance – ongoing obligation

Analysis

Ultimate compliance with this provision hinges on comprehensive accountability reform.
IPR now has more personnel, but does not have full access to LEDS or RegJIN, which contains LEDS information. Auditor Interview August 17, 2016. This is a structural barrier to IPR’s independent authority to conduct investigations. Also, PPB’s PSD continues to cite the quality of IPR investigations as a source of concern, which causes PSD to seek additional information from IPR. See, e.g., IA #2014-C-0265.
The timeliness memos that the City produced in response to Paragraph 123, in part, evidence an effort to reduce time consumed by redundant efforts between PPB and IPR. But these identify symptoms, e.g., an investigator’s leave or reassignment of a
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case, not a systemic cure, i.e, structural redundancies between IPR and PSD, or inefficiencies such as findings by unit managers who did not conduct the investigation rather than by investigators. We agree with COCL that the City’s planning process for comprehensive accountability reform, Paragraph 121 herein, will affect compliance with this provision.

Technical Assistance

In last year’s report card, we recommended that the City develop, submit, and ultimately implement a plan to address redundancies and inefficiencies, as we discussed in our May 14, 2015 meeting with the City. This recommendation stands. Portland Police Bureau must bring its comprehensive accountability reform to fruition.

IPR would benefit from training its investigators in methods that would assure PSD’s faith in the investigative reports and interviews that IPR produces. For example, IPR investigators could cross train with PPB officers for an understanding of PPB directives and IPR investigators could all take a common course on investigative methods to assure fidelity from investigator to investigator.

129. The City and PPB shall ensure that all allegations of use of excessive force are subject to full and completed IA investigations resulting in findings, unless there is clear and convincing evidence to IPR that the allegation has no basis in fact.

Status

Partial compliance – significant improvement, ongoing obligation

Analysis

Though we noted in our prior report card that PPB previously had declined to fully investigate allegations of excessive force, PPB has nearly eliminated that practice.
COCL recently observed that PPB SOP #19 (“Case Intake and Assignment”) includes the language of this Settlement Agreement provision. See COCL Compliance Report, January through June 2016, at Par. 129. However, COCL also noted that it did not review any case files for its assessment of compliance. Id.
Explicitly Declined Force Allegation:
Our sample of 23 accountability files we reviewed revealed that PPB wrongfully declined only one force investigation. See 2015-C-0273. The investigation included three allegations. Id. Portland Police Bureau properly resolved a discourtesy allegation by way of a service improvement opportunity. Id. However, PPB specifically coded the force allegation “E – Declined.” Id. “I have determined that there is no basis for a full administrative investigation.” Memo from CAPT Derek Rodrigues to CMDR Chris Uehara, Sept. 25, 2015. As a commander noted, the Complainant did not respond to requests for follow up interviews. See 2015-C0273. Also, PPB had documentation from the involved officers and the detective’s notes in which the complainant changed her story. Id. PPB used these facts as justification to decline the investigation, rather than facts to reach a finding.

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Though this section of the Settlement Agreement created a remedy that largely benefits complainants whose allegations did not receive a full investigation, the provision also benefits officers. Portland Police Bureau had the evidence needed to reach a finding. Instead, the officer was left under the pallor of an unresolved allegation. Portland Police Bureau should re-open the investigation and reach a finding.
De facto Declination of a Force Allegation:
Portland Police Bureau recently declined to complete an internal affairs force investigation in derogation of the Settlement Agreement’s prohibition on doing so. An IPR Assistant Program Manager sought to have PPB review the use of a car as a lethal force review. See Email from Rachel Mortimer to John Brooks, Aug. 3, 2016; Auditor Interview, August 17, 2016. The PPB investigative file, 2016-B0025, reveals a troubling memo. A PPB supervisor wrote that the officer “used the police vehicle to intentionally hit the back tire of the [subject’s] bicycle causing the subject to fall off of the bike.” Memo from CMDR Dave Hendrie to AC Matthew Wagenknecht, July 29, 2016. See also PPB Assets G7R86779, G7R86774 (photos of rear of bike under PPB cruiser). The supervisor then opined that the use of force was not a deadly use of force and successfully convinced PSD to suspend the administrative investigation. See Hendrie Memo. Thus, even though IPR pushed for a full administrative investigation on the use of force—i.e., IPR did not find clear and convincing evidence that the allegation had no basis in fact—PPB effectively declined the investigation. Moreover, PPB’s case file contained two separate civilian witness statements opining that the force use was not justified. See 16-240814 Witness Summaries. Portland Police Bureau must lift the suspension and complete the force investigation.

Technical Assistance

Portland Police Bureau is using its AIM database to track all complaints that include allegations related to force, as we commended in our 2015 report card. PPB should ensure its command staff and PSD act with fidelity to SOP# 19 to ensure that no allegations of excessive force go unresolved.

Portland Police Bureau should re-open and resolve the two above-described allegations.

130. The City and PPB shall continue to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.

Status

Noncompliance – ongoing obligation

Analysis

An accountability system that treats both complainants and officers fairly builds trust. An accountability system perceived as unfair—because of discouragement, intimidation, coercion, or adverse action—erodes legitimacy of the police and give rise to a concomitant increase in the likelihood that

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officers must rely upon force rather than trust and persuasion. Thus, a high ranking officer who evades accountability endangers all fellow officers and the public.
Above, Section VIII, we described how the former Chief, with the assistance of the police commissioner, subverted the accountability system and placed his subordinates in an untenable situation by discouraging them from reporting his firearm discharge to IPR or IA.
Separately, another PPB supervisor has played a particularly poignant role in discouraging the filing of complaints. In our 2015 report card, we described this PPB Captain who entered into a June 2014 settlement with the City which erased two disciplinary actions based on 2010 findings. See 2015 report card at Par. 137. By erasing these findings, then PPB leadership validated that Captain’s conduct, which PPB had previously declared outside of policy. This year, that same Captain continued to undercut accountability systems.
In 2015, we notified the City that we received a complaint about an officer’s use of force in allegedly seizing a camera phone. The complainant recorded the interaction. Commendably, PPB’s former Assistant Chief was immediately responsive and swiftly initiated an investigation. See PPB Complaint No. 2015-C325; see also Doug Brown, “A Portland Cop Deserves Discipline for Taunting A Local Activist, A Citizen Committee Says,” Portland Mercury, March 31, 2016, available at http://www.portland mercury.com/blogtown/2016/03 /31/17803174/aportland-cop-deserves-discipline-for-taunting-a-local-activist-a-citizen-committeesays. However, the Captain who later reviewed the incident—the same Captain discussed in last year’s report for securing unjustified expungement—not only reached a finding contradicted by the plain evidence, but also explicitly discouraged the filing of the complaint in his findings: “Even more disturbing was [the Captain’s] description of the Internal Affairs investigation as ‘pettifogging’14 and not worthy of an administrative investigation. [The Captain’s] behavior at the Police Review Board was hostile and combative. [The Captain] was disrespectful to Internal Affairs and openly disdainful towards to IPR.” Memo from IPR Director Constantin Severe to PSD CAPT Derek Rodrigues, Feb. 1, 2016. These actions violate Section III, preamble, Section VIII, and Paragraphs 129, 130, 137, and 172. Arguably, the Captain’s undermining of the complaint also was insubordinate to the Assistant Chief who properly accepted the complaint. Portland Police Bureau merely made an entry into the Captain’s EIS discussion tracker, but brought no administrative charges. Portland Police Bureau, therefore, did not hold the Captain accountable. Thus, the Captain, again, undercut the accountability system.
That was not the end. At the CRC hearing of IA 2015-C-325, a private activist threw a cup of water at a CRC member. The same PPB Captain who had provided
14 Pettifogging: 1. insignificant; petty: pettifogging details. 2. dishonest or unethical in insignificant matters; meanly petty.
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the supervisory review of IA 2015-C-325 was in attendance at the CRC. Following the CRC, that Captain filed a hostile-work-environment complaint against the IPR Director based on the water-throwing incident. The IPR Director did not throw the water. The water was not thrown at the Captain. Yet, the Captain continues to attack the very accountability systems deigned to build confidence in legitimate policing. Thus, the Captain continues to undermine public confidence in PPB and makes every officer’s job less safe.
Also in our 2015 report card, we detailed two separate allegations by the City’s Auditor involving the President of the Portland Police Association (“PPA”). The City refused to investigate either allegation. IPR was left without an answer to its allegation and the PPA president was left under the cloud of an unresolved accusation. Despite our clear statement in the 2015 report card that: “The City must not leave unanswered allegations of intimidation against individuals who report misconduct, make a misconduct complaint, or cooperate with an investigation of misconduct,” the City has done precisely that. The City has continued to refuse to complete an investigation of these allegations. Auditor interview, August 17, 2016.
To the City’s credit, PPB and IPR did investigate five other allegations of retaliation. Retaliation Complaints, February 17, 2015 to August 17, 2016, report dated August 30, 2016. Depending on how one would categorize the allegations of retaliations, the allegations described herein would amount to up to an additional nine allegations that have not been subject to full administrative investigation.

Technical Assistance

We agree with COCL that Directive 310.20 (available at https://www.portlandoregon.gov/police/article/528859) would benefit from revision to include a more explicit prohibition on “all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.” Portland Police Bureau must give effect to Directive 310.20 by demonstrating enforcement of it. We will assess whether PPB has done so in next year’s report card.

Our admonitions from 2015 still stand:

The City must not leave unanswered allegations of intimidation against individuals who report misconduct, make a misconduct complaint, or cooperate with an investigation of misconduct.

The City’s refusal to conduct a full investigation of allegations of intimidation undermines the public confidence in PPB and thereby unfairly clouds public perceptions of all officers.

131. The City and PPB shall retain Police Review Board procedures currently utilized for purposes of investigation and making recommended findings on administrative complaints, except as outlined below:
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a. Currently, seven voting members of the PRB review use of force incidents, including two citizen members. When PRB reviews uses of force case, one of the two citizen member slots shall be drawn from the Citizen Review Committee members. b. The CRC slot on the PRB in use of force cases will rotate among the CRC membership so that different CRC members participate on the PRB. Within 60 days of the Effective Date, the Auditor shall develop a membership rotation protocol. c. All members participating in the PRB must maintain confidentiality and be able to make thoughtful, unbiased, objective recommendations to the Chief of Police and Police Commissioner that are based on facts, consistent with PRB city code provisions and “just cause” requirements set forth in Portland City Charter, City rules, and labor agreements. d. All community members and CRC members must meet the following qualifications to participate on the PRB:
i. Pass a background check performed by the Bureau. ii. Participate in Bureau training to become familiar with police training and policies, including the PRB process. iii. Sign a confidentiality agreement. iv. Participate in ride-alongs to maintain sufficient knowledge of police patrol procedures. e. Current city code provides that the City Auditor and the Chief have authority to recommend to City Council the removal of citizen members from the PRB pool. Likewise, the City Auditor or Chief shall have authority to recommend to City Council removal of a CRC member from serving on the PRB. The Chief or the City Auditor may recommend that City Council remove a community member or member of the CRC from the pool for the following reasons: i. Failure to attend training; ii. Failure to read Case Files; iii. Objective demonstration of disrespectful or unprofessional conduct; iv. Repeated unavailability for service when requested; v. Breach of confidentiality; vi. Objective demonstration of bias for or against the police; or vii. Objective demonstration of conflict of interest. f. Removal from participation in the PRB shall not affect CRC membership. g. Like current PRB citizen members, CRC members serving on the PRB may serve in that capacity for no more than three (3) years. h. A CRC member who participates in a PRB review shall recuse himself/herself during any later appeal of the same allegation(s) to the CRC.
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132. By majority vote, the PRB may request that investigations of misconduct be returned to its investigating entity, i.e. PSD or IPR, to complete the investigation as to factual matters necessary to reach a finding regarding the alleged misconduct. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the PRB explaining why additional time is needed.

Status

Substantial compliance – ongoing obligation

Analysis

As we stated in last year’s report card, the City memorialized the requirements of Paragraph 131 in PPB Directive 336.00 (available at https://www.portlandoregon.gov/police/article/525753) and/or City Code 3.20.140 (available at https://www.portlandoregon.gov/citycode/article/479642). We stated last year that these changes to policy and code were compliant on their face. They have been operational over the past year. There have been no exclusions of CRC members from the PRB process. Auditor Interview, August 17, 2016.
In the third quarter of 2015, PPB implemented an instruction to PRB, read by the facilitator, to ensure that the PRB members are aware of the option to return the investigation for more information. PPB reports that in the past year, the PRB has not returned any cases for more investigation.

Technical We agree with COCL that the Parties may have to revisit these provisions as a Assistance portion of the City’s planned comprehensive accountability reform.

133. If an officer’s use of force gives rise to a finding of liability in a civil trial, PPB shall: (1) enter that civil liability finding in the EIS; (2) reevaluate the officer’s fitness to participate in all current and prospective specialized units ; (3) if no IA investigation has previously been conducted based upon the same allegation of misconduct and reached an administrative finding, conduct a full IA investigation with the civil trial finding creating a rebuttable presumption that the force used also violated PPB policy, which presumption can only be overcome by specific, credible evidence by a preponderance of evidence; (4) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, identify whether any new evidence exists in the record of the civil trial to justify the reopening of the IA investigation, and if so, reinitiate an IA investigation; and (5) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, and no new evidence from the civil trial justifies reopening the IA investigation, work with IPR to identify the reason why the administrative finding was contrary to the civil trial finding and publish a summary of the results of the inquiry.

Status

Partial compliance – ongoing obligation

Analysis

COCL correctly states that there were no new no liability findings giving rise to this provision. However, the same case we detailed in our 2015 report card remains outstanding and unresolved.
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We notified the City of its failure to adequately investigate a use of force that gave rise to a civil judgment. See IA 11-050814; see also Aimee Green, “Man beaten, shocked with Taser by Portland police awarded $562,000 by jury,” Oregonian, Sept. 29, 2014, available at http://www.oregonlive.com/portland/index.ssf/2014/09/portland_jury_ awards_to_man_be.html; compare Settlement Agreement Compliance Status Assessment Report, pp. 76-78, ECF No. 105-1 (Sept. 10, 2015). In repeated conversations and follow-up meetings, including directly with the former Chief, we made clear that PPB’s failure to investigate this incident violates the Settlement Agreement. See Section VIII, and Paragraphs 121, 128, 129, 130, 133, 137, and 172. Finally, PPB conducted an extensive investigation, but has not yet reached findings for want of an interview with the complainant.
The complainant in the case was represented by counsel in the civil proceeding. That counsel is the very same attorney who requested the inclusion of this Paragraph’s remedy during the process of vetting the original Settlement Agreement with stake holders. Ironically and tragically, that attorney also refused to participate in securing the interview of his client. See IA 11-050814. Even after we directly contacted the attorney, he referred PPB to prior testimony, thereby demurring from our request that he furnish the complainant to complete to administrative investigation. We were disappointed.
IPR has opined that PPB may seek out the complainant for interview. Thus, PPB now is attempting to bring closure to the matter.
Technical Once PPB completes the investigation and reaches findings, we will then assess Assistance whether those findings meet the requirement of Paragraph 133.

D. CRC Appeals
134. The City shall expand the membership of the CRC to 11 members, representative of the many and diverse communities in Portland, who are neutral, unbiased, and capable of making objective decisions. The quorum of CRC members necessary to act may remain at its existing level.

Status

Substantial compliance – ongoing obligation

Analysis

As we stated in last year’s report card, the City memorialized CRC membership expansion as required by Paragraph 134 in City Code 3.21.080 (available at https://www.portlandoregon.gov/citycode/article/479665). The code has been operational over the past year.

Technical We thank CRC volunteers for their continued involvement. The Parties may have Assistance to revisit the quorum provision of this Paragraph as a portion of the City’s planned
comprehensive accountability reform.

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135. The City and PPB agree that the CRC may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.
136. In its review process for purposes of the appeal, the CRC may make one request for additional investigation or information to the investigating entity, i.e. PSD or IPR at any point during its review. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the CRC explaining why additional time is needed. The request for additional investigation or information may contain multiple points of inquiry, but no follow-up requests will be permitted. The additional request be voted on by a quorum, the members voting must have read the Case File in order to vote, and any request with multiple points of inquiry must be prioritized.

Status

Substantial compliance – ongoing obligation

Analysis

CRC’s governing regulations now reflect the requirements of Paragraphs 135 and 136. The City Auditor, pursuant to its rule-making authority has adopted revised regulations that govern the CRC’s operations. See PSFD 5.03, revised Nov. 20, 2015, available at https://www.portlandoregon.gov/citycode/?c=27455&a=9030. The auditor has incorporated in the regulations directions to inform CRC that it “may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.” Paragraph 135.
COCL points out that one CRC request for more information resulted in greater than ten days’ work. Portland Police Bureau reported this to CRC without a writing. Like COCL, we find the necessary delay for more fulsome information reasonable, even without a writing.

Technical COCL has asked for a single point of contact for Settlement Agreement compliance Assistance to address both PPB and IPR issues. We agree, in part, with COCL; IPR should
report its compliance quarterly just as PPB does.

E. Discipline
137. Within 60 days of the Effective Date, PPB and the City shall develop and implement a discipline guide to ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors and to provide discipline that is reasonably predictable and consistent.

Status

Partial compliance – substantial improvement, ongoing obligation

Analysis

PPB has given effect to current Directive 338.00, which implements the discipline guide (available at http://www.portlandoregon.gov/police/article/488981?), but only for cases that
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PPB has appropriately investigated.
Where PPB has not adequately investigated allegations of misconduct, such as some of the individual cases cites above, PPB is not able to reach the issue of applying its Discipline Guide to those cases that would be sustained. For cases PPB has sustained, however, PPB is ensuring that supervisors apply the Discipline Guide. Portland Police Bureau requires supervisors to complete Corrective Action Recommendation Memo Forms indicating routing to: PRB, letter or reprimand, or command counseling. Commendably, PPB has added a check box to that form for supervisors to indicate that they have referred to the Discipline Guide in making a recommendation. Portland Police Bureau also has memorialized SOP #34 directing the use of this step on this form. Portland Police Bureau reports that, since implementing the check box, supervisors failed to use the check box on only two occasions, but nonetheless had consulted the Discipline Guide as required. See PPB 2015 Q4 Compliance Report, at Par. 137.
Portland Police Bureau’s Auditor also reports that PPB uses the discipline matrix with fidelity, as intended. Auditor Interview, August 17, 2016. See COCL Compliance Report, January through June 2016, at Par. 79.
We note, however, that the current Discipline Guide does not appear to impose discipline for inadequate reports, as required by the Force Section of the Settlement Agreement. The Force Audit Report did not describe any corrective action or discipline, if any, for inadequate reporting (despite extensive deficiencies).

Technical Assistance

As we stated last year: After non-career-ending discipline, officers have room to reconcile, earn advancement, and win commendation. However, PPB should memorialize that, absent new evidence, it will not expunge past accountability findings and discipline.

As we also stated in last year’s report card, we cannot fairly say PPB has implemented a discipline guide in the absence of an accountability system that functions as required by the Settlement Agreement. Accordingly, to come into compliance with Paragraph 137, PPB must substantially comply with the accountability provisions of the Settlement Agreement.

Failure to accurately report force should be subject to consistent corrective action.

F. Communication with Complainant and Transparency
138. Within 180 days of the Effective Date, the City shall enhance its existing website to ensure that a complainant can file and track his or her own complaint of officer misconduct.
139. Within 120 days of the Effective Date, the City shall review its protocols to ensure that the City shares with complainants requested documentation about his or her own complaint to the extent permitted by law.
140. The City shall ensure that IPR provides each complainant a tracking number upon receipt of the complaint, informs each complainant of the complaint classification, assignment (precinct or
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IA) and outcome of the complaint (sustained, unproven, etc.) in writing (whether mail, email/text, or fax), including information regarding whether the City took any corrective action. The City Attorney’s Office shall determine whether disclosures regarding corrective action are required on a case-by-case basis consistent with Oregon’s Public Records Law.

Status Substantial compliance – improvement still necessary, ongoing obligation

Analysis

The City makes certain information available to complainants, but needs protocols to ensure it does so to the extent permitted by law.
As we reported last year, IPR’s website includes a page at which complainants may request the status of their complaints. See http://www.portlandonline.com/auditor/index.cfm?c=64452. A complainant may enter his or her complaint number into the IPR website. The next business day, an IPR staff member will send the complainant an email with the status update. See Auditor Interview, August 17, 2016. However, the information IPR provides is relatively limited. As COCL points out and IPR confirmed, IPR grants community members access to “any items that the complainant has provided to [IPR]” and the “[t]ranscription of complainant interview, if one exists.” See COCL Compliance Report, January through June 2016, at Par. 139; Auditor Interview, August 17, 2016.
As COCL points out, the City reports that Oregon Law prohibits the disclosure of corrective actions in most circumstances, but the City has not produced documentation that “disclosures of corrective action are provided if they meet such exceptions.” See COCL Compliance Report, January through June 2016, at Par. 139. The City should provide protocols, as required by Paragraph 139, for the provision of all information requested by the complainant “to the extent permitted by law.” Par. 139.
As COCL found and we verified in our sampling of administrative investigations, IPR routinely provides the complainant a written document including the tracking number (case number), allegations, investigating agency and investigation process, and the outcome of the complaint. See COCL Compliance Report, January through June 2016, at Par. 140.

IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD
There is significant community and City interest in improving PPB’s community relationships. The community is a critical resource. Redefining and restructuring existing community input mechanisms to provide for independent oversight of the Agreement, while also enhancing PPB’s current community outreach efforts will promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety. To achieve this outcome, at a minimum, PPB shall implement the requirements below.

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141. To leverage the ideas, talent, experience, and expertise of the community, the City, in consultation with DOJ, shall establish a Community Oversight Advisory Board (“COAB”), within 90 days of the Effective Date of this Agreement. The COAB shall be authorized to:
(a) independently assess the implementation of this Agreement;
(b) make recommendations to the Parties and the COCL on additional actions;
(c) advise the Chief and the Police Commissioner on strategies to improve community relations;
(d) provide the community with information on the Agreement and its implementation;
(e) contribute to the development and implementation of a PPB Community Engagement and Outreach Plan (“CEO Plan”); and
(f) receive public comments and concerns.
142. Membership of the COAB shall be comprised of fifteen (15) voting members, five (5) advisory members, and the COCL.
a. The 15 voting members and the five advisory members shall be selected as follows:
i. Each member of City Council will select one representative to serve on the COAB, for a total of five voting representatives;
ii. The chair of the Human Rights Commission shall designate one Human Rights Commissioner to serve on the COAB;
iii. The chair of the Portland Commission on Disability shall designate one Commissioner on Disability to serve on the COAB;
iv. The chair of the Human Rights Commission and the chair of the Portland Commission on Disability shall jointly select three community members to serve as representatives of the mental health community on the COAB, after soliciting and reviewing applications from the public. These three COAB members will possess demonstrated expertise in the field of mental health in the form of either: (a) certification as a Qualified Mental Health Professional; or (b) no less than ten (10) years of demonstrated service to persons with mental illness. These three selections shall be completed within 60 days of the COCL selection.
v. The community-at-large will select five voting representatives directly from the community. The process used for this selection is discussed in paragraph 145 herein; and,
vi. The Chief will select a diverse group of five sworn officers within various ranks to serve as advisors and non-voting members of the COAB, and may consider whether the officer resides in Portland (“Advisory Members”).
b. The COAB’s membership will come from a reasonably broad spectrum of the community, such as: areas of expertise, advocacy experience, community involvement, profession, education, race, ethnicity, gender, gender identity, sexual orientation, national origin, age, religion, mental or physical disability and geographic identification. COAB members, including Advisory Members, must live, work, worship, or attend school in the
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City of Portland. COAB members shall not have an actual or perceived conflict of interest with the City of Portland.
143. The 15 voting members of COAB are independent of the City and PPB and shall not be currently employed by the City. Members must agree to serve for a minimum of a two-year term, and may be reappointed for one additional year. The COAB may create an executive committee or other subcommittees, as appropriate, to accomplish the tasks designated to it under this Agreement. The City shall provide administrative support so that the COAB can perform the duties and responsibilities identified in this Agreement.
144. The COAB shall report to the COCL. The COCL will chair the COAB, preside over COAB meetings, take and count votes, and perform such other activities as are necessary for the efficient operation of the COAB. If the COCL determines that a COAB member is no longer fit to serve on account of misconduct, the COCL shall consult with DOJ prior to removing such member. Following the removal of a COAB member, an alternative shall be selected from the same pool of applicants as the removed COAB member.
145. Selection of the five (5) community voting members shall be made as follows:
a. Each neighborhood coalition in Portland may propose a candidate for membership on the Committee. Any other non-profit organization within the City may also propose a candidate for membership. Any other person who lives, works, or is enrolled in school in Portland and is over the age of 15 may be considered provided they provide the City with the names of 50 verified residents over the age of 15 of the City of Portland who support his or her nomination;
b. The City shall widely advertise and hold a public meeting where previously nominated candidates will be selected. Any Portland resident is welcome to attend and participate in the selection process. The City will publicize the meeting throughout all the various communities of Portland;
c. At the public meeting, candidates will be given an opportunity to speak and ask for support. In their statements, candidates must indicate whether they live, work, worship, and/or attend school within the City of Portland;
d. Attendees at the public meeting and will be asked to select their choice of candidates;
i. If there are ten or fewer candidates, then the attendees present will select the top five candidates receiving the most votes;
ii. If there are more than ten candidates, a preliminary vote will be taken and the top ten candidates receiving the most votes will be selected and a second vote will be taken to reduce the number to the five persons that will serve on the COAB;
iii. The next two candidates who receive the most votes shall be identified as potential alternates, should a COAB member be removed or incapacitated; and,
iv. Because the number of persons who may be interested in participating in this process is unknown, the City may adopt other procedures necessary to conduct the meeting and to carry out the intent of these provisions.
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e. This process of selecting the five community members shall be completed within 60 days of the COCL selection.

Status

Non-Compliance, Significant Barriers

Analysis

While the City diligently worked with the Parties and the community to establish a COAB, the City has been unable to create a sustainable platform for the COAB to carry out the functions required by Paragraphs 141-145. Given significant barriers further addressed herein, the City placed the COAB on a 60-day hiatus of all public meetings to allow it time to prepare an alternative proposal for the structure and mission of the board. The 60-day window closes on October 21, 2016. At the time of this filing, the City has not submitted its alternative proposal to DOJ.
At the Court’s 2015 status conference, the COAB representative noted that an initial barrier concerned the board’s roles and function, which were not specified in detail in the Settlement Agreement, not well understood by the board members, and/or not agreed upon by the members. Furthermore, stakeholders collectively have agreed that the selection process, as well as the lack of orientation and training on the front end, created a weak foundation upon which the COAB would work to fulfill its duties. Finally, all Parties did not fully appreciate the amount of work placed upon the COAB’s valuable volunteers.
While COAB members demonstrated their commitment to their appointment through service on the board - typically involving five hours of meetings a month in addition to monthly subcommittee meetings, and volumes of reading materials required to prepare for the meetings, individual COAB members, COCL, and community members alike all conveyed concern that the board members were voting on recommendations in subject areas for which they had not been trained.
We concur with COCL’s Third and Fourth Quarter 2015 Compliance Report, that the City provided “support for meeting space, refreshments, accommodations, audio-video needs, and IT support for the COAB. COAB meetings occurred in convenient locations for members of the Portland community, near light rail, streetcar, and bus stops.” And the independent office space the City negotiated met the spirit of this Agreement. Moreover, the City devoted resources such as a Program Support Specialist, to assist in the administrative functioning of the board. However, the volunteer members and local COCL expressed consistent frustration by the bureaucratic delay in obtaining City resources to accomplish the board’s tasks.
In her June 26, 2016 exit report, Ms. Kathleen Saadat stated that institutional barriers made her role as COAB Chair a challenging one. Because the COAB had to depend on slower moving, bureaucratic institutions for funding and operation, the result was an “inability for the COAB to be agile, timely and creative in response to the challenges of doing the work of public engagement.” As an example, Ms. Saadat cited the City’s procurement procedures, which make it difficult for the COAB to “readily select meeting sites congruent with the need to

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engage community.”
Ms. Saadat identified leadership issues as another serious challenge facing the COAB’s success. In her exit report, Saadat writes, “There is no apparent leadership group/person in charge of the overall work of driving the initiatives into the institution(s) being reformed.” PPB Community Engagement Outreach Plan (“CEOP”) Committee reflected similar sentiment during a June 9, 2016 meeting with a DOJ Outreach Specialist and DOJ Counsel. Attendees expressed frustration that no single group or person was there to take charge and make final decisions. At a PPB general staff meeting, members also expressed concern that while PPB is being held accountable for their implementation of the Settlement Agreement, City leadership is not being held accountable provisions outside of PPB’s scope.
Unfortunately, in addition to these foundational issues, beginning in late April and early May 2016, civil unrest from a small group of community members occurred at various COAB meetings, eventually resulting in several COAB members expressing fear for their safety, COCL requesting security for COAB members at the meetings, and the COAB general meetings being adjourned early due to multiple disruptions. Despite the Parties conferring with each other, COCL and the COAB in an attempt to address these concerns, the situation became untenable. The City requested and DOJ consented to providing a temporary (60 day) suspension of official COAB meetings to allow the City to prepare a proposal to correct these issues.
Additionally, despite our request in our 2015 report, the City has yet to provide DOJ with a plan to fill the vacancies of the at-large committee members.
On November 30, 2015, DOJ Counsel and the City, in consultation with COCL and Counsel for the AMAC, conferred and determined that while the process was clearly established for alternates to be selected for the PCOD/HRC, HRC, City Commissioner, and PPB Advisory appointments, the process needed to be further clarified for the selection and appointment of alternates for the five community atlarge positions. On April 29, 2016, the same parties met again to clarify the process, and the City Attorney's office outlined a work plan to replace COAB members. The City did not move forward on this plan, and empty COAB positions remain unfilled.
Furthermore, several members of the COAB who were appointed by City Council members resigned over the last year. City Council failed to appoint new members.
Finally, while the Agreement is clear that COCL shall chair the COAB, this arrangement has proven to be untenable. On July 11, 2016, COCL sent a petition to DOJ and the City requesting a separation from COAB “as the result of nearly two years of ambiguity, disrespect, and willful undermining of the COCL’s authority to run the COAB,” see July 11, 2016 COCL Petition for Amendments to Settlement Agreement. And on July 14, 2016, a quorum of COAB members voted in favor of separation from COCL, as well and the ability to choose their own chair.
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Technical Assistance

DOJ agrees that the Settlement Agreement’s structure to support the COAB must be reconsidered. The City must provide a robust proposal that is developed with stakeholder input to reformulate the structure and deliverables of a community oversight board. DOJ expects to provide additional technical assistance upon receipt of the City’s proposal.

146. To ensure constitutional policing, to closely interact with the community to resolve neighborhood problems, and to increase community confidence, PPB shall work with City resources knowledgeable about public outreach processes to develop and finalize a CEO Plan:
a. Within 90 days of the COAB selection, the City, in consultation with COAB, will conduct a reliable, comprehensive, and representative survey of members of the Portland community, including civilians and PPB officers, regarding their experiences with and perceptions of PPB’s prior community outreach efforts and accountability efforts and where those efforts could be improved, to inform the development and implementation of the CEO Plan;
b. COAB, in conjunction with PPB, shall consult with community members (not only through PPB Advisory Councils and Roundtables) and hold at least two (2) public hearings, completed within 90 days of the COAB selection, in addition to the representative survey described above, to gather public input on PPB’s outreach efforts; the hearings shall be held in locations to ensure that PPB receives input from all parts of the Portland community;
c. COAB shall review PPB’s prior community outreach efforts to contribute to the development of a new CEO Plan;
d. COAB shall solicit and consider input from the Human Rights Commission’s Community Police Relations Committee (“CPRC”), including its work to implement the 2009 PPB “Plan to Address Racial Profiling”;
e. Within 60 days of the anticipated due date for survey results, the COAB and PPB, in consultation with the appropriate City resources knowledgeable about public outreach and survey analysis, shall review and analyze the results of the survey and other public comments discussed above;
f. The CEO Plan shall include strategies to ensure greater public outreach and engagement, including opportunities for outreach to a broad cross-section of community members. The Plan shall also identify gaps in available resources to achieve its goals.
g. The COAB may also provide information to the PPB on other areas related to community engagement and outreach to contribute to the development of the CEO Plan, including:
i. integration of community and problem-oriented policing principles into PPB’s management, policies and procedures;
ii. recruitment, selection, training, promotion, and personnel evaluations;
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iii. tactics and deployment of resources; and
iv. systems of accountability.
g(2). COAB shall submit its recommended CEO Plan to the Chief, in writing, within 90 days of the COAB’s completion of survey analysis.
h. The Chief’s Office, in consultation with the five PPB advisory members of the COAB shall utilize the COAB’s recommendations in developing and implementing the CEO Plan. The Chief’s Office shall present the final proposed CEO (with implementation timeline) to the COAB for a vote of approval within 240 days of the effective date of this Agreement.

Status

Partial Compliance

Analysis

While PPB has the responsibility to develop and finalize the CEO Plan required by Paragraph 147, PPB is only able to accomplish this task with coordination from the COAB and offices within the City who work on neighborhood involvement issues.
Portland Police Bureau reported internal efforts to establish a framework for the CEO Plan before the COAB was formed, and reported successfully working with the Community Engagement subcommittee of the COAB upon initiation. Furthermore, COCL worked with CEOPS in developing a task oriented monthly work plan to complete the CEO Plan. Unfortunately, the deadlines in this work plan have all passed, and PPB has been unable to finalize a plan, in large part due to the ineffective functioning of the board as discussed above in Paragraphs 141-145, prohibiting further consultation with the COAB.
However, the required community survey was accomplished prior to the COAB’s breakdown. In consultation with the COAB, the City contracted with the firm Davis, Hibbitts, and Midghall (DHM) to perform the required community survey. In 2015 Q4, DHM presented their findings, as required by section (e), to the COAB and members of the public. (Video of this meeting can be found at https://www.youtube.com/watch?v=2ebTy9VK-z8). COCL provided a review of the survey results in their April 2016 Outcome Assessment. See http://www.coclcoab.org/library/reports-memos/april-2016-cocl-semi-annual-outcome-assessmentreport.
Through the beginning of 2016, PPB worked collaboratively with COCL, CEOPS, the City, and DHM to find ways to reach community groups that were overlooked or not reached during the mailed community survey. In the third quarter of 2016, Professional facilitators from DMH ran six focus groups, to gather more qualitative information and feedback from youth, LGBT, and homeless populations with mental illness.
While the initial meeting required under Paragraph 146(b) was unsuccessful in its plan to gather input from the public, the second public outreach event made great strides. COAB, in coordination with PPB, planned and scheduled a Community Engagement Workshop on April 14, 2016, at the Ambridge Event Center. All

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reported that the meeting successfully facilitated dialogue between the Police Officer, COAB members, and community members in attendance. See 2016 Q2 PPB data set, folder 146. On May 5, 2016, members of the CEOP subcommittee and PPB led a similar workshop with the Tongan, Samoan, and Pacific Islander communities at a church in East Portland. The PPB described this event as “lively and inclusive” and said a crowd of around forty “youth and elders” attended. DOJ Tasks/Quarterly Update Report, 146.
Compliance with Paragraph 146(d) is further discussed in the analysis in Paragraph 148.

Technical Assistance

We commend PPB and the COAB CEOPS subcommittee on their efforts to move forward with the community survey, and to coordinate the successful Community Engagement Workshop. The City must find a way forward to finalize and present the CEO Plan.

While not required by the Settlement Agreement, we concur with COCL’s recommendation that PPB conduct contact surveys as a way to gather additional information for the CEO Plan. As COCL has noted on several occasions, such surveys can also be utilized to better understand the effectiveness of training. See COCL Compliance Assessment Report, 2016 Q1-Q2 draft report (referencing previous recommendations for such surveys), http://www.coclcoab.org/sites/default/files/Draft%20COCL%202016%20Q1Q2%20Compliance%20Assessment%20w%20Appendices.pdf.

147. PPB shall continue to collect appropriate demographic data for each precinct so that the Precinct Commander, together with the COAB, may develop outreach and policing programs specifically tailored to the residents of the precincts.
148. PPB shall continue to require that officers document appropriate demographic data regarding the subjects of police encounters, including the race, age, sex and perceived mental health status of the subject, and provide such information to the CPRC to contribute to their analysis of community concerns regarding discriminatory policing. In consultation with the COAB and CPRC, PPB shall consider enhancements to its data collection efforts, and report on its efforts to enhance data collection to the DOJ by no later than December 31, 2013, and quarterly thereafter.
149. The COAB, COCL, PPB, and DOJ will jointly develop metrics to evaluate community engagement and outreach.

Status

Partial Compliance

Analysis

In order to fulfill requirements in Paragraphs 146(d) and 148, the City must ensure that City-supported bodies referenced in the Agreement, such as the Community Police Relations Committee (CPRC), receive adequate support and guidance. The COAB’s CEOP subcommittee invited the CPRC to present its update of the 2009

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Racial Profiling Plan to the full COAB in June 2016. See DOJ Tasks/Quarterly Update Report 146(a-g). However, on May 10, 2016, a news release stated that the Human Rights Commission (CPRC’s umbrella organization) unanimously voted to take a “two- to three-month pause” to “reorganize.” See May 10, 2016 HRC News Release. CPRC is the volunteer board with which City must consult regarding community engagement. As of the date of this filing, the work of the CPRC has not been reinstated by the City.
On May 23, 2016, DOJ inquired with the City’s counsel regarding how the City intends to fulfill its obligations under this provision given the decision to suspend the CPRC’s work. As of the date of this filing, DOJ has not received a substantive response.
Pursuant to part one of Paragraph 147, PPB continues to “collect appropriate demographic data for each precinct,” including information related to race/ethnicity, gender, age, economic status, disability, education, and housing. See 2016 Q1 PPB data set, folder 147. However, PPB has not reported on meetings between the COAB and Precinct Commanders to “develop outreach and policing programs specifically tailored to the residents of the precincts.” Furthermore, it is unclear whether and how PPB considered comments received from the CPRC.
Finally, metrics cannot be established until the formulation of the CEO Plan.
Technical The City must engage with DOJ on how it intends to address the significant barriers Assistance it faces to accomplish the requirements of this provision. These issues are at the
forefront of the national consciousness, and Oregon is not immune.

150. Annually, PPB shall issue a publicly available PPB Annual Report, which shall include a summary of its problem-solving and community policing activities. A draft of the Annual Report shall be reviewed by the COAB before the report is finalized and released to the public. Once released, PPB shall hold at least one meeting in each precinct area and at a City Council meeting, annually, to present its Annual Report and to educate the community about its efforts in community policing in regard to the use of force, and about PPB’s policies and laws governing pedestrian stops, stops and detentions, and biased-free policing, including a civilian’s responsibilities and freedoms in such encounters.

Status

Partial compliance – ongoing obligation

Analysis

Portland Police Bureau produced a draft of its 2015 Annual Report to the COAB on March 10, 2016, available at http://www.coclcoab.org/sites/default/files/2015%20ANNUAL%20REPORT%20-WORD-TP.pdf. The Report was subsequently raised for discussion and review pursuant to Paragraph 150 at the March 24, 2016 general COAB meeting, which can be viewed at https://www.youtube.com/watch?v=5hZPuff1XjE. It is unclear whether and how PPB considered COAB’s comments in the final version of the Report.

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Another requirement pursuant to Paragraph 150 is that the Annual Report be made publicly available. Portland Police Bureau maintains an internet page for DOJrelated documents, including quarterly and annual reports. PPB made this Report public on October 5, 2016, after inquiry of the posting by DOJ. See https://www.portlandoregon.gov/police/62642
Lastly, PPB reported that the precinct commanders had successfully hosted their meetings required by this Paragraph. Portland Police Bureau reports that the meetings at both the North and East Precincts had full community rooms of participants, and that participants expressed appreciation for the opportunity to engage in dialogue. Unfortunately, as of the date of this filing, City Council had not hosted a meeting for PPB to present its Annual Report to educate the community about its efforts, pursuant to Paragraph 150.

Technical Assistance

We applaud the North and East precincts’ efforts to provide an opportunity for open dialogue. We encourage PPB to continue to offer such events outside the mandate of our Agreement. Furthermore, PPB should consider utilizing its Annual Report to provide information about its community policing activities both internally and publicly.

151. The COAB may make recommendations approved by a majority of its membership regarding implementation of the terms of this Agreement.

Status

Substantial Compliance – ongoing obligation

The COAB has shown the ability to make recommendations approved by a majority of its membership for both administrative issues and policy recommendations. For example, on April 28, 2016, the COAB voted to recommend the City end the “48-hour rule” for officers who are involved in a deadly use of force incident. And the COAB drafted a well-reasoned paper supporting this recommendation.
The COAB has also put forward recommendations on several PPB directives such as 344.05, bias-based policing/racial profiling prohibited, Directive 1051.00 Electronic Control Weapon System, Directive 1090.00 Special Weapon Use, and Recommendation 100815-9 consent searches, among others, see http://www.coclcoab.org/library/coab-recommendations/approved-coab-recommendations.
The COAB approved over two dozen recommendations in the first two quarters of 2016 alone.

152. The COAB shall meet at least twice per year with the Chief, the Police Commissioner, PPB Precinct Commanders, PPB Neighborhood Response Teams, and a representative of the Office of Neighborhood Involvement Crime Prevention to assess and solicit comment on PPB’s activities in regards to community outreach, engagement, and problem-solving policing. The
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COAB shall also provide the opportunity for public comment at each of its meetings to keep open lines of communication with the public-at large.

Status

Non Compliance

Analysis

A meeting that would have satisfied Paragraph 152 was scheduled for May 26, 2016, but the meeting did not happen for a number of reasons. While numerous PPB officials have attended COAB meetings, the COAB has yet to “meet at least twice per year” with the officials listed in Paragraph 152 “in regards to community outreach, engagement, and problem-solving policing.”
On May 24, 2016, the former PPB chief was placed on paid administrative leave and the acting chief declined to reschedule the meeting. The previous chief then retired on June 26, 2016. Upon the appointment of Chief Marshman, the COAB was in its throws of civil unrest.

Technical The Police Commissioner and PPB should include plans for twice yearly Assistance productive exchanges with the COAB, as required by Paragraph 152, as part of
PPB’s engagement on the CEO Plan Development Timeline.

153. A representative of the Oregon U.S. Attorney’s Office shall be invited to attend all COAB meetings.

Status

Substantial compliance – ongoing obligation

154. COAB shall meet as needed to accomplish their objectives as set forth in this Agreement. All COAB meetings shall be open to the public. In addition, COAB shall attend quarterly meetings with the COCL as provided in Par 163. To the extent that COAB meetings are subject to the Oregon Public Meetings Law, or similar regulatory or statutory requirements, the City shall be responsible to give advice necessary to the COCL to ensure compliance with those laws and agrees to represent COCL in any challenges regarding compliance with those laws.

Status

Non-Compliance – substantial barriers

Analysis

Our 2015 compliance report noted that the COAB’s formation and establishment was challenging, and that the COAB is a new type of entity created for assessing implementation of a Settlement Agreement. As such, COAB had no pattern to follow and it had to develop bylaws, subcommittees, and processes. Unfortunately those hurdles were not overcome through the following year, and as a result the City placed the COAB meetings in hiatus in August 2016 as discussed above. Since that time the COAB has not been able to officially meet to accomplish the tasks required of the board under the Agreement.
Despite the hurdles addressed above, COCL maintains a robust COAB/COCL website providing an extensive library of materials from COAB meetings and
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COCL’s reports, as well as other resources for the public. See http://www.coclcoab.org/. Such a resource should continue to be updated and utilized as way for COCL to provide additional information to the public, until such time that a revised structure is approved and implemented.

Technical Assistance

As noted, the City requested 60 days to propose an alternative to the current structure and objectives of the COAB. The City’s deadline is Thursday, October 21, 2016. Given the status at the time of this filing, the City should provide an interim plan for consideration by DOJ while it finalizes the proposal.

155. The City shall provide COAB members with appropriate training necessary to comply with requirements of City and State law.

Status

Substantial compliance – ongoing obligation

Analysis

We noted in our 2015 report that the City provided COAB advice on compliance with laws governing open public records and open public meetings. The City also provided legal advice concerning ethics for public officials, and questions of prayer in public meetings. The City also offered civilian police academy and ride-alongs to COAB members. And, IPR provided training on their authority to investigate complaints and the City’s accountability systems for police officers.

Technical Assistance

Despite the City diligently fulfilling this role through the City Attorney’s Office, there was a desire from some members of the COAB to have independent legal counsel. As we provided in guidance to the COAB, the City Attorney does not have an actual conflict of interest in providing counsel to the board on the requirements of City and State law regarding public meetings. However, we commend the City Attorney’s Office for staffing a Deputy City Attorney for this task who is not involved in advising PPB leadership.

X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT
156. PPB shall implement immediately all provisions of this Agreement which involve the continuation of current policies, procedures, and practices specific to force, training, communitybased mental health services, crisis intervention, employee information system, officer accountability, and community engagement. Except where otherwise specifically indicated, PPB shall implement all other provisions of this Agreement no later than within 180 days of the Effective Date.
157. With regard to any provision that provides for DOJ’s review and approval, including review of all policies that must be revised, approval will be granted in a timely fashion provided that the PPB’s action reasonably satisfies the requirements and standards set forth in the relevant provision(s).
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158. All PPB audits and reports related to the implementation of this Agreement shall be made publicly available via website and at PPB, IPR, City Hall, and other public locations. Audits and reports shall be posted on PPB’s website.
159. PPB shall collect and maintain all data and records necessary to facilitate and ensure transparency and wide public access to information related to PPB decision making and activities, and compliance with this Agreement, in accordance with the Oregon Public Records Law.

Status

Partial compliance – ongoing obligation

Analysis

The Parties are working together to implement the substantive provisions of the Settlement Agreement, though the 180-day deadline has passed.
The Settlement Agreement’s effective date is August 29, 2014. The 180-day deadline, therefore, passed on February 25, 2015. However, the Parties did not resolve the City’s appeal until July 30, 2015. As we reported last year, the City began to implement some portions of the Settlement Agreement even before the effective date.
The City has already met with some success, as described in this compliance report, achieving substantial compliance with several provisions. For other provisions, described herein, the City and PPB must still work though issues on their own or with the Department of Justice to come into compliance.
Portland Police Bureau provides public access to information through its and others’ online websites, frequent press releases, and public meetings. As described in the Paragraph 150 analysis, above, PPB has posted its quarterly self audits and its annual report on its website. See https://www.portlandoregon.gov/police/62642. Additionally, IPR produces very useful monthly, quarterly, and annual reports. See https://www.portlandoregon.gov/ipr/27068. COCL reports and COAB recommendations are publicly available on their shared website. See http://www.cocl-coab.org/library. As described in the analysis of Section IX, herein, the City’s transparency has been hindered, at least in part, by the dysfunctional nature of the COAB meetings and the failure of the former Chief and Mayor to meet with the COAB.

Technical The City and DOJ intend to conduct more expeditious policy reviews going Assistance forward. This should expedite some areas of compliance.
Implementation of the technical assistance set forth in Section IX, herein, would contribute to a more transparent, public process for Settlement Agreement implementation.

A. Compliance Officer/Community Liaison 160-164. COCL Selection and Duties
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Status

Not measured

Comment The City Council selected COCL November 12, 2014. COCL has now published its reports on a schedule to which the Parties agreed.

B. PPB Compliance Coordinator
165. PPB will hire or retain an employee familiar with the operations of PPB for the duration of this Agreement, to serve as a PPB Compliance Coordinator. The Compliance Coordinator will serve as a liaison between PPB and both the COCL and DOJ and will assist with PPB’s compliance with this Agreement. At a minimum, the Compliance Coordinator will:
a. Coordinate PPB’s compliance and implementation activities;
b. Facilitate the provision of data, documents, materials, and access to PPB personnel to the COCL and DOJ, as needed;
c. Ensure that all documents and records are maintained as provided in this Agreement;
d. Assist in assigning compliance tasks to PPB personnel, as directed by the Chief of Police or the Chief’s designee; and
e. Take primary responsibility for collecting the information the COCL requires to carry out his/her assigned duties.

Status

Substantial Compliance – ongoing obligation

Analysis

Portland Police Bureau appointed a Captain as compliance coordinator who, along with a dedicated civilian experienced in mental health services, has ably coordinated compliance reporting to DOJ. These individuals and their staff have also provided data and communicated openly when called upon. We thank all of these individuals for their efforts.

Technical This compliance report is intended to serve as a roadmap to assist PPB in furthering Assistance compliance.

C. Access to People and Documents
166. The COCL shall have full and direct access to all PPB and City staff, employees, facilities, and documents that the COCL reasonably deems necessary to carry out his/her duties. If a document requested by the COCL is a privileged attorney-client communication, the COCL shall not disclose the document in a manner that destroys that privilege without the approval of the City Attorney. The COCL shall cooperate with PPB and the City to access people, facilities, and documents in a reasonable manner that minimizes, to the extent possible, interference with daily operations. In order to report on PPB’s implementation of this Agreement, the COCL shall regularly conduct reviews to ensure that PPB implements and continues to implement all
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measures required by this Agreement. The COCL may conduct on-site reviews without prior notice to PPB or the City.
167. For the purpose of monitoring this Agreement, DOJ and its consultative experts and agents shall have full and direct access to all PPB and City staff, employees, facilities, and documents, that DOJ reasonably deems necessary to carry out the enforcement and monitoring provisions of this Agreement to the extent permitted by law. DOJ and its consultative experts and agents shall cooperate with PPB and the City to access involved personnel, facilities, and documents in a reasonable manner that minimizes interference with daily operations; however, DOJ may conduct on-site reviews without prior notice to PPB or the City. DOJ shall provide PPB or the City with reasonable notice of a request for copies of documents. Upon such request, PPB or the City shall provide DOJ with copies (electronic, where readily available) of any documents that DOJ is entitled to access under this Agreement, except any documents protected by the attorneyclient privilege. Should PPB decline to provide DOJ with access to a document based on attorney-client privilege, PPB promptly shall provide DOJ with a log describing the document, including its author, recipients, date of production, and general topic.
168. All non-public information provided to the COCL or DOJ by PPB or the City shall be maintained in a confidential manner. Nothing in this Agreement requires the City to disclose documents protected from disclosure by the Oregon Public Records Law to third parties.

Status

Substantial Compliance – ongoing obligation

Analysis

The City and PPB have provided us with access to employees and information upon our request. The individuals with whom we spoke provided data and communicated openly. We thank all of these individuals and the Assistant City Attorneys for facilitating access.

Technical As described in the analysis for Paragraph 97, the City should fulfill the Assistance outstanding data request for C-I training.

D. Review of Policies and Investigations
169. Within 180 days of the Effective Date, PPB shall revise and/or develop its policies, procedures, protocols, training curricula, and practices to ensure that they are consistent with, incorporate, address, and implement all provisions of this Agreement specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement. PPB shall revise and/or develop as necessary other written documents such as handbooks, manuals, and forms, to effectuate the provisions of this Agreement. PPB shall send new or revised policies, procedures, protocols, and training curricula regarding use of force, interactions with persons in mental health crisis and systems of accountability to DOJ as they are promulgated, with a copy to the COCL. DOJ and the COCL will provide comments within 45 days and will not unreasonably withhold recommendations about policies, procedures, protocols, and training curricula. The COCL shall seek the timely input of the relevant members of the Training Division and patrol officers, as well members of the community. If the City disagrees with DOJ’s comments, the City shall, within 14 days of
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being informed of the DOJ’s comments, inform the Parties in writing of the disagreement. Within 14 days thereafter, the Parties shall meet and confer on the disagreement at a mutually agreeable time. Upon approval by the Parties, policies, procedures, training curricula, and manuals shall be implemented within 30 days of agreement or the Court’s decision. PPB shall provide initial and in-service training to all officers and supervisors with respect to newly implemented or revised policies and procedures. PPB shall document employee review of and training in new or revised policies and procedures.
170. The Chief shall post on PPB’s website final drafts of all new or revised policies that are proposed specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement, to allow the public an opportunity for notice and comment, prior to finalizing such policies.
171. The Chief’s Office shall coordinate a review of each policy or procedure required by this Agreement 180 days after such policy or procedure is implemented, and annually thereafter (on a regularly published schedule), to ensure that such policy or procedure provides effective direction to PPB personnel and remains consistent with the purpose and requirements of this Agreement.

Status

Not measured

Comment Please refer to our August 10, 2015 policy review letter.
The City and DOJ intend to conduct more expeditious policy reviews going forward. This should expedite some areas of compliance.

172. PPB shall apply policies uniformly and hold officers accountable for complying with PPB policy and procedure.

Status

Partial compliance – ongoing obligation

Analysis See Accountability section, above.

173. In addition to compliance reviews, the COCL shall lead semi-annual qualitative and quantitative outcome assessments to measure whether the City and PPB’s implementation of this Agreement has created: (1) capable systems and resources for responding to persons in mental health crisis; (2) competent accountability and oversight systems; (3) effective training for police officers that increases the knowledge, skills and abilities necessary for effective and successful delivery of service to persons in mental health crisis; (4) proper management of the use of force to meet constitutional standards; and (5) robust systems of community engagement. These outcome assessments shall be informed by the following:
a. Use of Force Data:
i. the number of police interactions where force was used on individuals with actual or perceived mental illness, including the type of force used; the reason for
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the interaction, i.e., suspected criminal conduct or a well-being check; the threat to public safety, including whether the person was armed and if so, with what; a description of the type of resistance offered, if any; and a description of any attempts at strategic disengagement; ii. the rate of force used per arrest by PPB; force implement used; geographic area (i.e., street address, neighborhood, or police precinct or district); type of arrest; and demographic category; iii. the rate of force complaints that are sustained, overall and by force type; source of complaint (internal or external); type of arrest; type of force complained of; demographic category; iv. uses of force that were found to violate policy overall and by force type; type of arrest; demographic category; force implement used; and number of officers involved; v. the number and rate of use of force administrative investigations/reviews in which each finding is supported by a preponderance of the evidence; vi. the number of officers who frequently or repeatedly use force, or have more than one instance of force found to violate policy; vii. the rate at which ECW usage decreases or increases compared to the use of force overall and by weapon; and viii. the rate at which officer and subject injuries decrease or increase overall and by severity of injury. b. Mental health interaction data on: i. MCPT dispositions; ii. the flow of people in mental health crisis through PPB, the County jail, emergency receiving facilities, and community agencies; iii. officer and agency staff satisfaction with the transfer process; iv. the rate of repeat calls for service involving individuals in mental health crisis; v. the use of the mental health commitment law; and vi. the availability of appropriate treatment options; c. Training data, including: i. officer evaluation of adequacy of training; and ii. the Training Division’s assessment of incidents involving officer or civilian injury. d. Performance data, including: i. uses of force found to be unreasonable, complaints sustained and not sustained, and other performance related indicators for supervisors/commanders promoted
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pursuant to the requirements of this Agreement, and for the units these supervisors/commanders command; and
ii. initial identification of officer violations and performance problems by supervisors, and effectiveness of supervisory response.
e. Accountability data, including:
i. the number of complaints (broken out by type of complaint), with a qualitative assessment of whether any increase or decrease appears related to access to the complaint process;
ii. rate of sustained, not sustained, exonerated complaints;
iii. the number and rate of complaints in which the finding for each allegation is supported by a preponderance of the evidence;
iv. the number of officers who are subjects of repeated complaints, or have repeated instances of sustained complaints; and
v. the number, nature, and settlement amount of civil suits against PPB officers regardless of whether the City is a defendant in the litigation.
174. In conducting these outcome assessments, the COCL may use any relevant data collected and maintained by PPB, provided that it has determined, and the Parties agree, that this data is reasonably reliable and complete. Additionally, the COCL shall solicit input from community groups or initiatives that have relevant experience conducting statistical analyses. The COCL will contribute to and review the Annual Community Survey.
175. Two years after the Effective Date, DOJ shall conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by the Agreement have been achieved. DOJ will further examine whether any modifications to the Agreement are necessary in light of changed circumstances or unanticipated impact (or lack of impact) of the Agreement’s requirements. This assessment also shall address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating full and effective compliance. Based upon this comprehensive assessment, DOJ may recommend modifications to the Agreement that are necessary to achieve and sustain intended outcomes. Where the City agrees with DOJ’s recommendations, the Parties shall stipulate to modify the Agreement accordingly. Nothing in this assessment shall empower DOJ to unilaterally modify the terms of this Agreement.

Status

Not measured

Comment Following the filing of this two-year report card and the October 26, 2016 hearing, DOJ will meet with the Parties to discuss potential enhancements to the Settlement Agreement. In part, these discussions will rely on COCL’s outcomes assessments.

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176. Beginning with the COCL’s first quarterly report, as set forth in paragraph [162]166 of this Agreement, PPB shall prepare a status report no later than 45 days before the COCL’s quarterly report is due. The PPB Compliance Coordinator shall lead the effort in preparing this status report and shall provide copies to the COCL, DOJ, and the public. PPB’s report shall delineate the steps taken by PPB during the reporting period to comply with each provision of this Agreement.
177. PPB shall maintain all records, as applicable, necessary to document their compliance with the terms of this Agreement and all documents expressly required by this Agreement.

Status

Substantial Compliance – ongoing obligation

Analysis

Portland Police Bureau has provided very useful quarterly compliance reports from 2014 Q1 through 2016 Q2. We thank all of the individuals involved for their efforts.

Technical Assistance

As PPB points out its quarterly reports, some provisions of the Settlement Agreement are not PPB’s responsibility. Whereas PPB’s regular reporting has fostered deliberate compliance efforts, BOEC has not had such a catalyst for change. BOEC would benefit from deliberately and consistently focusing on compliance. See Paragraphs 113-115, above.

F. Enforcement 178.-190.

Status

Not measured

Comment The Parties moved jointly to enter the Settlement Agreement. DOJ has not instituted an enforcement action.

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BILLY J. WILLIAMS, OSB #90136 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian.brown@usdoj.gov Assistant United States Attorney United States Attorney’s Office District of Oregon 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
STEVEN H. ROSENBAUM, Chief LAURA L. COON, Special Counsel R. JONAS GEISSLER jonas.geissler@usdoj.gov Senior Trial Attorney BRIAN D. BUEHLER brian.buehler@usdoj.gov SETH WAYNE seth.wayne@usdoj.gov Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530 Telephone: (202) 514-6255 Facsimile: (202) 514-4883
Attorneys for Plaintiff, United States
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UNITED STATES DISTRICT COURT DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. THE CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI
PLAINTIFF’S POST STATUS CONFERENCE STATUS REPORT

The United States, through undersigned counsel, submits the following status report pursuant to the Court’s direction at the conclusion of the Court’s Second Annual Status Conference on October 25, 2016. (ECF No. 130).

At the Status Conference, the United States requested that the Court hold a status conference after 30 days for the City of Portland to report on its progress in developing a revised plan for the Community Oversight Advisory Board, which is the subject of Section IX of the Settlement Agreement; and to hold a status conference after 90 days to hear from the parties regarding any proposed modifications to the Settlement Agreement pursuant to Paragraph 175. The United States requested one week to further confer with the other Parties to obtain consensus as to the scheduling of the status conferences. The Court granted this request and directed that if the Parties were unable to agree on a proposed schedule, then the United States was to file a report providing each of the four parties’ positions on such scheduling. Unfortunately, the United States and the City have

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been unable to agree on further scheduling of status conferences, despite good faith
efforts by both parties to confer on this issue.
The United States has further conferred with counsel for Amicus and Defendant-
Intervenor. The four parties’ positions are as follows.
Plaintiff – United States: The Court has jurisdiction to order status conferences as provided by its Amended Order Entering Settlement Agreement. (ECF No. 99)1. Upon
conferral with all parties, the United States requests that the Court either hold a status
conference, or in lieu of a conference, requests that the City submit to the Court a written
Supplemental Compliance Report by Friday, December 2, 2016, specifically regarding
the steps taken to achieve compliance with Section IX of the Settlement Agreement. The
United States further requests the Court hold a status conference on or about Tuesday,
January 31, 2017 for the Parties to report on the obligations of Paragraph 175 of the Settlement Agreement and any stipulated modifications.2
1 In relevant part, the Court “. . . ORDER[ED] that this civil action be placed on the Court’s inactive docket, other than for the annual status conferences referenced in this Order or otherwise as may be directed by the Court, and subject to recall to the active docket should the United States move to enforce the Settlement Agreement.” (ECF No. 99) (emphasis added). 2 Paragraph 175 of the Settlement Agreement provides the following: “Two years after the Effective Date, DOJ shall conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by the Agreement have been achieved. DOJ will further examine whether any modifications to the Agreement are necessary in light of changed circumstances or unanticipated impact (or lack of impact) of the Agreement’s requirements. This assessment also shall address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating full and effective compliance. Based upon this comprehensive assessment, DOJ may recommend modifications to the Agreement that are necessary to achieve and sustain intended outcomes. Where the City agrees with DOJ’s recommendations, the Parties shall stipulate to
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The United States requests the following agenda for the third annual status conference set for Wednesday, October 5, 2017, at 10:00 am, which is similar to that previously set by the Court for the initial status conference. See ECF No. 107.
10:00 a.m. Court’s introductory remarks (10 minutes)
10:10 a.m. United States of America (“USA”) (35 minutes) (presentation and responses to Court’s questions)
10:45 a.m. City of Portland (“City”) (35 minutes) (presentation and responses to Court’s questions)
11:20 a.m. Break (ten minutes) 11:30 a.m. Albina Ministerial Alliance Coalition for Justice and Police Reform
(“AMAC”) (20 minutes) (presentation and responses to Court’s questions) 11:50 a.m. Portland Police Association (“PPA”) (20 minutes) (presentation and responses to Court’s questions) 12:10 p.m. Compliance Officer/Community Liaison (“COCL”) (20 minutes) (presentation and responses to Court’s questions) 12:30 p.m. Community Oversight Advisory Board (“COAB”) (20 minutes) (presentation and responses to Court’s questions) 12:50 p.m. Court’s closing remarks (10 minutes)
Defendant – City of Portland: The City asserts that interim conferences are outside of the framework of the Settlement Agreement and the annual status conferences set out in the Court’s Order Entering the Settlement Agreement. (ECF No. 99). The City will continue to work in good faith with the United States to bring the City into compliance
modify the Agreement accordingly. Nothing in this assessment shall empower DOJ to unilaterally modify the terms of this Agreement.” (ECF No. 4-1).
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before the third annual status conference. The City has no objection to the United States providing further status reports to the Court regarding the City’s compliance efforts, but does not agree that interim conferences should be held by the Court.
Defendant Intervenor – Portland Police Association: The PPA has no objection to either a status conference in 30 days or for the City to file a supplemental status report to apprise the Court of discussions surrounding the COAB. The PPA also has no objection to a status conference in 90 days to apprise the Court of progress toward modifications of the Settlement Agreement under Paragraph 175, with the understanding that the PPA will be part of those discussions given the impact on its Memorandum of Agreement with the United States and the City. The PPA has indicated that it will assess any future requests for interim status conference(s) by the United States or other parties on a per-request basis.
Amicus Curiae – Albina Ministerial Alliance Coalition of Justice and Police Reform (AMAC): While the AMAC prefers that the parties have an in-person status conference in 30 days, the AMAC agrees, in the spirit of compromise, that the City may submit a written status update in 30 days instead of an in-person conference, and the parties should have a conference in 90 days regarding the status of proposed changes to the Settlement Agreement.
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Respectfully submitted this 2nd day of November, 2016. Attorneys for Plaintiff, United States:

BILLY J. WILLIAMS United States Attorney District of Oregon

STEVEN H. ROSENBAUM, Chief, Civil Rights Division Special Litigation Section

/s/ Adrian L. Brown ADRIAN L. BROWN Assistant U.S. Attorney

/s/ R. Jonas Geissler LAURA COON, Special Counsel R. JONAS GEISSLER Senior Trial Attorney

Page 6 - PLAINTIFF’S POST STATUS CONFERENCE STATUS REPORT United States v. City of Portland; Case No. 3:13-cv-02265-SI

 
 Case 3:12-cv-02265-SI Document 154 Filed 07/19/17 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. THE CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI
UNITED STATES, CITY OF PORTLAND & PORTLAND POLICE ASSOCIATION’S JOINT STATUS REPORT

INTRODUCTION On July 5, 2017, the Court issued an order cancelling the Third Annual Status Conference set in this case for October 5, 2017, and directing the parties to file a status report, either jointly or separately, stating the following: “(1) what steps have been taken since the Second Annual Status Conference to bring the City of Portland into Compliance with the Settlement Agreement; and (2) the parties’ best estimate of when they expect the Ninth Circuit will rule on the City of Portland’s pending petition for a Writ of Mandamus.” (Docket No. 152). Plaintiff United States, intervener-defendant Portland Police Association (“PPA”), and defendant City of Portland (collectively “the parties”) have conferred and submit this joint status report.
1. Steps taken since Second Annual Status Conference & request to set Third Annual Status Conference The parties are currently engaged in an ongoing mediation of the City’s pending petition
for a writ of mandamus through the Ninth Circuit mediation program. During the course of that mediation, the parties have addressed a number of substantive Settlement Agreement compliance issues. The confidentiality requirements of the mediation program prevent the parties from describing their interactions in detail. As outlined below, however, the parties have taken
Page 1 – UNITED STATES, CITY OF PORTLAND & PORTLAND POLICE ASSOCIATION’S JOINT STATUS REPORT
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 TELEPHONE: (503) 823-4047 FAX: (503) 823-3089

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concrete steps toward identifying areas of the Settlement Agreement in which the City’s progress toward substantial compliance had stalled, formulating specific plans and benchmarks for the City to meet to achieve substantial compliance, and setting a schedule for action by the City and evaluation by the United States. Specifically, since the Second Annual Status Conference, the City has taken the following steps to come into compliance:
• The City has revised its policies governing use of force; • The City has coordinated with the Multnomah County District Attorney’s Office, the
PPA and the United States to revise protocols for reporting and investigating incidents involving the use of deadly force by police officers and in-custody deaths in light of applicable state and federal law, which the Multnomah County District Attorney’s Office has determined is necessary to preserve its ability to conduct a full and thorough criminal inquiry into a use of deadly force; • In the area of community-based mental-health services, the City has worked with partners to facilitate the development and opening of the Unity Center, a community walk-in mental-health treatment option, which is now operating; • The City has convened and utilized the Training Advisory Council to make recommendations on officer training programs; • The City has proposed revisions to the Police Bureau’s accountability systems, including revising Police Bureau Directives to clarify administrative procedures, and revisions to City Code to help streamline the investigation process and ensure that all complaints are investigated either through a formal administrative investigation by Internal Affairs or the Independent Police Review or, for lower level complaints, through a supervisory investigation process;
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 TELEPHONE: (503) 823-4047 FAX: (503) 823-3089

Case 3:12-cv-02265-SI Document 154 Filed 07/19/17 Page 3 of 5
• In the area of crisis intervention, the City is gathering data under Paragraph 105 of the Settlement Agreement to assess the efficacy of the crisis intervention program (CIT/ECIT);
• In the area of community engagement, the City has consulted with amicus curiae Albina Ministerial Alliance Coalition for Justice and Police Reform (“AMAC”), the community, the PPA, and the United States to design a more effective and durable plan for a community engagement advisory board. Based on that process, the City is preparing to establish a new commission to interface between the public and the PPB, to provide public input and recommendations regarding police performance in key focus areas, to facilitate better community engagement and outreach, and to ensure community-engaged policing both during and beyond the pendency of the Settlement Agreement.
In addition, the parties have shared substantive mediation documents with amicus curiae AMAC in advance of bringing AMAC into mediation with Ninth Circuit mediator Claudia Bernard and Senior Judge Edward Leavy on July 14, 2017.
Before the end of this year, the parties expect to be able to offer this Court a full substantive report detailing the schedule, specific steps taken, and steps that remain to be taken for substantial compliance with the Settlement Agreement, and accordingly ask this court to reset the Third Annual Status Conference to November 16, 2017, or any other time thereafter that is convenient to this court.1 Counsel for plaintiff United States has conferred with Ms. Kristen Chambers, counsel for amicus curiae AMAC, about this request to so reset the Third Annual Status Conference, and has represented that the AMAC supports that request.
1 Although the Ninth Circuit writ is still pending at this time, the City did not request a stay of district-court proceedings pending a decision on the writ, and a writ does not automatically result in a stay. The parties are also hopeful that the issues presented by the writ will be resolved through the mediation program without the need for action by the Ninth Circuit. Page 3 – UNITED STATES, CITY OF PORTLAND & PORTLAND
POLICE ASSOCIATION’S JOINT STATUS REPORT
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 TELEPHONE: (503) 823-4047 FAX: (503) 823-3089

Case 3:12-cv-02265-SI Document 154 Filed 07/19/17 Page 4 of 5

2. Parties’ best estimate of when they expect the Ninth Circuit will rule on pending petition for a Writ of Mandamus After the City filed its petition for writ of mandamus in this case, the United States
requested that the Ninth Circuit refer the writ to the Circuit Court’s mediation program. The Ninth Circuit granted that request, and action on the City’s petition has been effectively stayed pending the final outcome of mediation. As a result, the parties are unable to state when or whether the Ninth Circuit will rule on the City’s petition.
CONCLUSION For the reasons stated above, the parties respectfully ask this court to set the Third Annual Status Conference to November 16, 2017, or any other time thereafter that is convenient to the court. DATED: July 19, 2017.

Respectfully submitted,

Attorneys for the United States:
/s/ Billy J. Williams BILLY J. WILLIAMS United States Attorney District of Oregon
/s/ Janice E. Hebert JANICE E. HEBERT Assistant U.S. Attorney
/s/ Jared Hager JARED HAGER Assistant U.S. Attorney

T.E. WHEELER, II
Acting Assistant Attorney General Civil Rights Division
ROBERT MOOSSY Deputy Assistant Attorney General
STEVEN H. ROSENBAUM, Chief, Special Litigation Section
/s/ Laura L. Cowall LAURA L. COWALL Special Counsel

/s/ R. Jonas Geissler R. JONAS GEISSLER Senior Trial Attorney

Page 4 – UNITED STATES, CITY OF PORTLAND & PORTLAND POLICE ASSOCIATION’S JOINT STATUS REPORT
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 TELEPHONE: (503) 823-4047 FAX: (503) 823-3089

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Attorneys for the City of Portland:
/s/ Tracy Pool Reeve TRACY POOL REEVE City Attorney
/s/ David Landrum__ DAVID LANDRUM Senior Deputy City Attorney
/s/ Denis M. Vannier_ DENIS M. VANNIER Deputy City Attorney
MARK AMBERG Chief Deputy City Attorney

/s/ Brian D. Buehler BRIAN D. BUEHLER SETH WAYNE Trial Attorneys

Attorney for the Portland Police Association:
/s/ Anil S. Karia___ ANIL S. KARIA

Page 5 – UNITED STATES, CITY OF PORTLAND & PORTLAND POLICE ASSOCIATION’S JOINT STATUS REPORT
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 TELEPHONE: (503) 823-4047 FAX: (503) 823-3089

 
 Case 3:12-cv-02265-SI Document 158 Filed 12/26/17 Page 1 of 8

BILLY J. WILLIAMS, OSB #901366 United States Attorney JARED D. HAGER, WSB #38961 Assistant United States Attorney U.S. Attorney’s Office for the District of Oregon 1000 SW Third Ave., Suite 600 Portland, Oregon 97204-2902 Phone: 503.727.1120 Email: jared.hager@usdoj.gov
JOHN M. GORE
Acting Assistant Attorney General Civil Rights Division STEVEN H. ROSENBAUM Chief Special Litigation Section LAURA L. COON Special Counsel R. JONAS GEISSLER BRIAN D. BUEHLER KERRY K. DEAN Trial Attorneys U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530 Phone: 202.514.6255 Fax: 202.514.4883
Attorneys for Plaintiff, United States

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. THE CITY OF PORTLAND,

Case No. 3:12-cv-02265-SI
PLAINTIFF’S NOTICE OF THIRD PERIODIC COMPLIANCE ASSESSMENT REPORT

Defendant.

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Plaintiff, the United States of America, provides notice to the Court of Attachment 1, our Third Periodic Compliance Assessment Report (“Report”), for the period of August 29, 2016 to August 29, 2017. During this reporting period, the City of Portland made significant progress in implementing the Settlement Agreement, ECF 4-1, as set forth in detail in our Report. The Portland Police Bureau (“PPB”) and the City’s Independent Police Review (“IPR”) have undertaken critical policy revisions that address police use of force and the City’s administrative investigations of alleged officer misconduct. PPB has significantly improved its training practices: the Bureau’s Training Division uses the training needs assessment and competencybased evaluations to shape lessons; acts on advice from the Training Advisory Council; and has trained numerous officers on revised use of force policies. PPB also realized advancements in implementing the Settlement Agreement’s feedback mechanisms, such as the re-launch of the Inspector’s Force Audit Report in a more accessible format that better presents the Inspector’s analyses. And PPB and the City have taken substantial steps regarding crisis triage and response, including training call takers on crisis triage and implementing data collection mechanisms for calls involving a mental health component. As spelled out in the Report, the City’s progress is commendable, but further work remains.
Importantly, the parties collaborated throughout the reporting period to address barriers to compliance. This includes working together to refine and submit to the Court a number of stipulated amendments to the Agreement. The amendments modify certain language that proved unworkable during the implementation phase of the Agreement, while preserving the intent and goals of the Agreement. The United States looks forward to continuing to work with the City, the Portland Police Association (“PPA”), and the AMA Coalition for Justice and Police Reform on Agreement implementation.
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Our executive summary of the Report is as follows:
• Use of Force: PPB established a strong foundation for force management with improvements to policies, training, and the quarterly Force Audit Reports. o Successes include:  Revising use of force policies to include, with limited exceptions, the terms of Section III of the Settlement Agreement;  Launching renewed in-service use of force training of officers, using improved scenarios and lesson plans that reflect the revised policies; and  Reformatting the quarterly Force Audit Reports to better present patterns in use of force and deficiencies in reporting and administrative reviews. o Challenges include:  Resolving discrepancies between the Settlement Agreement and PPB’s policy on reporting and investigating use of deadly force;  Ensuring that supervisors reviewing use of force consistently identify and document any problems concerning policies, training, tactics, and/or equipment, and that the Inspector and Chief address these issues; and  Enforcing the Bureau’s policy on electronic control weapon (“ECW”) deployments, including finding misconduct where officers violate the policy.
• Training: The City has significantly advanced training, implemented technical assistance, and adapted in-service training on recently enacted policies. o Successes include: • Implementing equity training in the spring 2017 in-service training and ethical policing in the fall 2017 in-service training (Pars. 78, 84(a)); • Utilizing a training needs assessment to shape current in-service training (Par. 79); • Implementing ECW training that includes individualized testing and incorporating policy into instruction and practicum (Par. 80); • Providing practical instruction on life saving techniques and a duty to render aid (Par. 80); • Assessing efficacy of training through competency-based evaluations and scenarios (Par. 80); • Incorporating trainer selection criteria into revised PPB Directives (Par. 83); and • Utilizing advice from the Training Advisory Council (Par. 86). o Challenges include: • Informing the training needs assessment and training plan with accurate data from the force and training audits and the post-training performance of officers (Par. 79);
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• Using data developed through student surveys of supervisory and specialized training (Par. 80);
• Bringing PPB’s new Learning Management System online (Par. 81);
• Implementing a comprehensive supervisory in-service training that incorporates changes to PPB Directives (Par. 84); and
• Implementing a training audit (Par. 85).
• Community-Based Mental Health Services: The City has supported the establishment of the Unity Center, a psychiatric emergency services facility, which provides acute psychiatric services for persons in crisis and links individuals to community-based treatment and supports prior to discharge. The City continues to work with service system partners as the State implements its plan to increase the availability of community-based treatment and supports (Pars. 88-90).
• Crisis Intervention: PPB’s Behavioral Health United (“BHU”) continues to operate mobile crisis prevention teams (now called Behavioral Health Response Teams, or BHRTs) and a service coordination team (“SCT”), and oversee the work of the patrol-based Enhanced Crisis Intervention Team (“ECIT”) officers. With the guidance and support of its Advisory Committee, the efforts of BHU have successfully elevated the services that PPB provides to individuals with mental illness or in crisis. Further work remains to collect and analyze data to demonstrate and enhance the effectiveness of the unit.
o PPB’s successful BHRT model, in which a Project Respond Service provider is paired with a specially trained patrol officer to follow-up with individuals with mental illness who have had repeated contacts with law enforcement, continues to function as contemplated by the Agreement (Pars. 106-09).
o The City’s Bureau of Emergency Communication (“BOEC,” or 911) has revised its protocols and trained its call takers and dispatchers on crisis triage, tracking PPB’s hybrid model of crisis intervention. BOEC is now implementing a fully operational crisis triage system, and the success of its new protocols and training will be evaluated going forward (Pars. 113-15).
o Portland’s hybrid crisis response model differs from the Memphis Model because the specialized crisis response team, comprised of officers who have received Enhanced Crisis Intervention Training, is dispatched only to a specific subset of calls for service with a mental health component. PPB is successfully collecting data about its crisis intervention model through a Mental Health Template. Data from the Template and BOEC are being used to inform outcome measures that are intended to demonstrate the effectiveness of Portland’s model, as required by the provisional approval granted by the Department of Justice (Par. 99).
• Employee Information System (“EIS”): PPB’s EIS has improved but still not proven capable of “effectively identify[ing] at-risk employees, supervisors and teams to address potentially problematic trends in a timely fashion.” (Par. 116).
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o Successes include: • Implementing a standard operating procedure to provide the EIS administrator consistent guidance on the processing of EIS alerts (Par. 116).
o Challenges include: • Ensuring that supervisors timely complete performance reviews, utilizing the EIS (Par. 116); and • Gathering data about the effective use of alerts for officers within the units (Par. 116).
• Accountability: PPB and IPR are in the midst of formalizing a change in the way the City conducts administrative investigations of alleged officer misconduct. In the period covered by this compliance assessment report, PPB and IPR have made significant progress in tracking and handling allegations of misconduct. o Successes include: • Implementing weekly meetings regarding investigative deadlines to ensure more timely investigations (Pars. 121, 123); • Helpful analysis from IPR about public statements made during concurrent criminal and administrative investigations (Par. 122); • Issuing Communication Restriction Orders (“CROs”) when required (Par. 125); • Utilizing witness officers’ walk-throughs of critical incidents (Par. 126); • Seeking voluntary, contemporaneous interviews of officers involved in critical incidents (Par. 127); and • Completing a fulsome internal investigation after a civil liability finding (Par. 133). o Challenges include:
• Achieving consistency in the policies, training, and investigator skill sets for IPR and IA investigations (Par. 128);
• Ensuring appropriate administrative investigations for all after-action reviews that identify uses of force that may be beyond existing policy (Par. 129); and
• Completing a revised retaliation policy and implementing it to fully address allegations of retaliation or discouragement of complaints (Par. 130).
• Community Engagement: During 2016, it became apparent that the Community Oversight Advisory Board (“COAB”) framework was not achieving the goals of the Agreement. Accordingly, the City ceased efforts to maintain COAB and instead proposed a new framework for community engagement: the Portland Committee on Community-Engaged Policing (“PCCEP”). DOJ, PPA, and the AMAC have approved the City’s proposal to substitute PCCEP for COAB, and it is now pending with the Court. Key provisions of PCCEP include:
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• PCCEP will be comprised of a smaller group of volunteers than COAB. The members will be appointed by the Mayor and chosen through a more centralized vetting and selection process. New PCCEP members will also receive more extensive and formalized training.

• Beyond administrative support and training, the PCCEP plan lays out other duties and responsibilities of the City, such as seeking the services of an organizational development consultant to structure board orientation, and providing resources for member training as needed.

• The City designed PCCEP to endure beyond the life of the Settlement Agreement.

• PCCEP will have the responsibility to hold public meetings, but the power to conduct some work in private.

• PCCEP will have authority to “independently assess the Settlement Agreement.” See City of Portland Plan for Portland Committee on Community-Engaged Policing, Section II.

Our Report uses the following color-coded compliance status levels to indicate our

current assessment of PPB’s progress in complying with each provision of the Settlement

Agreement. Like last year, we added some notations to provide additional information to compliance status levels that did not change.1 The color coding is as follows:

•

Blue: compliance rating pending or not measured. This level indicates that either the

provision does not have a specific measurement to assess, or that the United States has not yet

fully assessed compliance, either due to insufficient documentation provided for assessment, or

because the United States must complete additional analysis/observation of how the specific

provision is being implemented.

•

Green: substantial compliance with an ongoing obligation. This level indicates that the

City has implemented the specific provision as required by the Settlement Agreement, and that

1 For simplicity, we removed from our compliance ratings the phrase “ongoing obligation.” All provisions of the Settlement Agreement are ongoing obligations until final dismissal.
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the City has an ongoing obligation to continue such action to remain in compliance.

•

Yellow: partial compliance with an ongoing obligation. This level indicates that while

there has been progress made with implementation, specific areas need further attention in order

to reach substantial compliance.

•

Red: non-compliance. This level indicates that we have recognized barriers to achieving

implementation of the provision that must be addressed to achieve compliance.

Our analysis and technical assistance provided with this Report are intended both to

acknowledge the City’s accomplishments thus far and to advise the City on certain actions that

will help achieve compliance.

At the annual status conference, we anticipate presenting the Court with an overview of

our Report and answering questions that the Court may have concerning this matter.

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DATED this __ day of December, 2017.
Respectfully submitted,
BILLY J. WILLIAMS United States Attorney District of Oregon
JANICE E. HÉBERT Chief, Civil Division
/s/ Jared D. Hager JARED D. HAGER Assistant U.S. Attorney

JOHN M. GORE Acting Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief, Special Litigation Section
/s/ Laura L. Coon LAURA L. COON Special Counsel /s/ R. Jonas Geissler R. JONAS GEISSLER Trial Attorney /s/ Brian D. Buehler BRIAN D. BUEHLER Trial Attorney /s/ Kerry K. Dean KERRY K. DEAN Trial Attorney

Page 8 Plaintiff’s Notice of Third Periodic Compliance Assessment Report United States v. City of Portland, Case No. 3:12-cv-02265-SI

 
 Case 3:12-cv-02265-SI Document 171 Filed 05/15/18 Page 1 of 75

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-2265-SI ORDER

Billy J. Williams, United States Attorney; Renata A. Gowie, Chief, Civil Division; and Jared D. Hager, Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE, DISTRICT OF OREGON, 1000 SW Third Avenue, Suite 600, Portland, OR 97204; Laura Cowall, Special Counsel, R. Jonas Geissler, Trial Attorney, Special Litigation Section; Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, 950 Pennsylvania Avenue, NW, Washington, D.C. 20530. Of Attorneys for Plaintiff.
Tracy Pool Reeve, City Attorney; Mark P. Amberg, Chief Deputy City Attorney, Denis M. Vannier, Senior Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant.
Anil S. Karia, PUBLIC SAFETY LABOR GROUP, 3021 NE Broadway, Portland, OR 97232. Of Attorneys for Intervenor-Defendant Portland Police Association.
Jessica Ashlee Albies, ALBIES & STARK, 210 SW Morrison Street, Suite 400, Portland, OR 97204; Kristen A. Chambers, WYSE KADISH LLP, 900 SW Fifth Avenue, Suite 2000, Portland, OR 97204. Of Attorneys for Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform.

Page 1 – ORDER

Case 3:12-cv-02265-SI Document 171 Filed 05/15/18 Page 2 of 75
Michael H. Simon, District Judge. On December 26, 2017, Plaintiff United States, Defendant City of Portland, Intervenor-
Defendant Portland Police Association, and Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform (collectively, the “Stipulators”) filed a Joint Stipulated Motion to Enter Amended Settlement Agreement. ECF 157. On January 22, 2018, the Court ordered a Fairness Hearing on the Motion, declaring that the proposed Amended Settlement Agreement shall not take effect absent express approval by the Court. ECF 163. On April 19, 2018, the Court held the Fairness Hearing and received written and oral submissions from the Stipulators and numerous members of the public, before and during the hearing.
After reviewing the proposed amendments, related pleadings, oral argument, and public comment, the Motion is hereby GRANTED IN PART AND DENIED IN PART as follows:
The Court ORDERS that the following amendments to the Settlement Agreement previously entered in this matter (ECF 4-1) are APPROVED:
1. Addition of subparagraph 69(c) regarding use-of-force reporting; 2. Changes to subparagraph 73(a) and paragraph 117 regarding the employee
information system; 3. Changes to paragraph 121 regarding Citizen Review Committee appeals; 4. Addition of subparagraph 131(d) regarding a stipulated discipline process; and 5. Changes to paragraph 159 regarding COCL reporting. The Court ORDERS that the following amendments are CONDITIONALLY APPROVED, pending the Court’s further evaluation at a Status Conference set for October 4, 2018, at 9:00 am, and final approval: 1. Changes to Sections IX and X regarding community engagement and oversight.
Page 2 – ORDER

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The Court ORDERS that, except for the conditionally approved amendments, the Amended Settlement Agreement attached hereto shall be and is entered as an Order of the Court, superseding the Settlement Agreement previously entered in this matter (ECF 4-1). For the sake of clarity, the conditionally approved amendments are shown in redline, and are subject to the Court’s further evaluation before being entered as an Order of the Court; however, the Stipulators may perform under those conditionally approved amendments pending the Court’s further evaluation.
The Court DENIES the request to provide the Stipulators with a standing order of reference to the Ninth Circuit Mediation Program, without prejudice to any Stipulator moving the Court for an order of reference to the Ninth Circuit Mediation Program if a future dispute arises.
The Court ORDERS that, except for entering the Amended Settlement Agreement attached hereto, the provisions of this Court’s July 30, 2015 Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference (ECF 99) otherwise remain in force.
IT IS SO ORDERED. DATED this 15th day of May, 2018.
/s/ Michael H. Simon Michael H. Simon United States District Judge
Page 3 – ORDER

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TABLE OF CONTENTS

INTRODUCTION ....................................................................................................................................... 1

I.

GENERAL PROVISIONS .............................................................................................................. 3

II. DEFINITIONS................................................................................................................................ 5

III. USE OF FORCE ............................................................................................................................ 12

A. Use of Force Policy ......................................................................................................................... 13

1. Electronic Control Weapons .................................................................................................... 14

2. Use of Force Reporting Policy and Use of Force Report .......................................................... 15

3. Use of Force Supervisory Investigations and Reports ............................................................... 15

B. Compliance Audits Related to Use of Force .................................................................................... 17

IV. TRAINING.................................................................................................................................... 22

V. COMMUNITY-BASED MENTAL HEALTH SERVICES ........................................................... 26

VI. CRISIS INTERVENTION............................................................................................................. 28

A. Addictions and Behavioral Health Unit and Advisory Committee.................................................... 29

B. Continuation of C-I Program .......................................................................................................... 30

C. Establishing “Memphis Model” Crisis Intervention Team ............................................................... 30

D. Mobile Crisis Prevention Team ....................................................................................................... 32

E. Service Coordination Team ............................................................................................................. 33

F. BOEC............................................................................................................................................. 33

VII. EMPLOYEE INFORMATION SYSTEM ..................................................................................... 33

VIII. OFFICER ACCOUNTABILITY ................................................................................................... 35

A. Investigation Timeframe.................................................................................................................. 35

B. On Scene Public Safety Statements and Interviews .......................................................................... 36

C. Conduct of IA Investigations .......................................................................................................... 36

D. CRC Appeals................................................................................................................................... 40

E. Discipline........................................................................................................................................ 41

F. Communication with Complainant and Transparency...................................................................... 41

IX. COMMUNITY ENGAGEMENT AND CREATION OF PORTLAND COMMITTEE ON COMMUNITY ENGAGED-POLICING .................................................................................................. 41

X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT ................................................. 50

A. Compliance Officer/Community Liaison......................................................................................... 51

B. PPB Compliance Coordinator ......................................................................................................... 53

C. Access to People and Documents.................................................................................................... 53

D. Review of Policies and Investigations .............................................................................................. 54

E. City Reports and Records................................................................................................................ 59

F. Enforcement................................................................................................................................... 59

Case 3:12-cv-02265-SI Document 171 Filed 05/15/18 Page 5 of 75

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI
AMENDED SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2)

INTRODUCTION The United States and the City of Portland (“City”) (collectively “the Parties”) recognize that the vast majority of the City’s police officers are honorable law enforcement professionals who risk their physical safety and well-being for the public good. The Parties enter into this Agreement with the goal of ensuring that the Portland Police Bureau (“PPB”) delivers police services to the people of Portland in a manner that effectively supports officer and public safety, and complies with the Constitution and laws of the United States. Specifically, this Agreement is targeted to strengthen initiatives already begun by PPB to ensure that encounters between police and persons with perceived or actual mental illness, or experiencing a mental health crisis, do not result in unnecessary or excessive force. The Parties recognize there has been an accelerating movement toward a model of police management that relies on both existing and still-developing management and monitoring tools and systems. This model requires both vision and fiscal commitment, and is necessary to legitimate policing. The United States recognizes that PPB has endeavored to adopt components of modern management despite being a lean organization, and greatly appreciates the City’s commitment, in this agreement, to provide PPB the fiscal support necessary to rapidly and fully implement a

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complete state- of-the-art management and accountability system. The Parties further recognize that the ability of police officers to protect themselves and the community they serve is largely dependent on the quality of the relationship they have with that community.
Public and officer safety, constitutional policing, and the community’s trust in its police force are, thus, interdependent. The full and sustained implementation of this Agreement is intended to protect the constitutional rights of all members of the community, continuously improve the safety and security of the people of Portland, keep PPB employees safe, and increase public confidence in PPB, all in a cost- effective, timely, and collaborative manner. The United States commends the City for the steps it already has taken to implement measures to effectuate these goals.
To fully achieve these goals, this Agreement requires the City and PPB to further revise or, where needed, adopt new policies, training, supervision, and practices in the following areas: the use of force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement.
This Agreement further requires that the City and PPB put in place more effective systems of oversight and self-correction that will identify and correct problems before they develop into patterns or practices of unconstitutional conduct and/or erode community trust.
This Agreement further identifies measures, to be met within fixed periods of time, that will assist the Parties and the community in determining whether: (1) the City has changed its procedures and taken the actions listed in this agreement; (2) community trust in PPB has increased; and (3) the improvements will be sustainable.
For these reasons, and noting the general principle that settlements are to be encouraged, particularly settlements between government entities, the Parties agree to implement this Agreement under the following terms and conditions.

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I. GENERAL PROVISIONS 1. The United States has filed a complaint in the Federal District Court for the District of Oregon in Portland, Oregon asserting that the City has engaged in a pattern and practice of constitutional violations pursuant to the authority granted to United States Department of Justice (“DOJ”) under 42 U.S.C. § 14141 to seek declaratory or equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution or federal law. The City expressly denies that the allegations of the complaint are true. 2. The Parties agree that nothing in this Agreement shall be construed as an admission of wrongdoing by the City or evidence of liability under any federal, state, or municipal law. Upon execution of this Agreement by both Parties, the United States agrees to conditionally dismiss the complaint it filed with prejudice, subject to the Court retaining jurisdiction to enforce the Agreement, followed by final dismissal with prejudice upon performance of this Agreement. 3. This Agreement shall constitute the entire integrated agreement of the Parties. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding. If, in the course of interpreting this Agreement, there is an ambiguity that cannot be resolved by the Parties or in mediation, evidence including the Parties’ course of dealing and parol evidence may be used. 4. This Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, and successors. If the City establishes or reorganizes a government agency or entity whose function includes overseeing, regulating, accrediting, investigating, or otherwise reviewing the operations of PPB or any aspect thereof, the City agrees to ensure these functions and entities are consistent with the terms of this Agreement and shall incorporate the terms of this

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Agreement into the oversight, regulatory, accreditation, investigation, or review functions of the government agency or entity as necessary to ensure consistency.
5. This Agreement is enforceable only by the Parties. No person or entity is, or is intended to be, a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement. The Parties agree to defend the terms of this Agreement should they be challenged in this or any other forum.
6. This Agreement is not intended to impair or expand the right of any person or organization seeking relief against the City, PPB, or any officer or employee thereof, for their conduct or the conduct of PPB officers; accordingly, it does not alter legal standards governing any such claims by third parties, including those arising from city, state, or federal law. This Agreement does not expand, nor will it be construed to expand access to any City, PPB, or DOJ document, except as expressly provided by this Agreement, by persons or entities other than DOJ, the City, and PPB. All federal and state laws governing the confidentiality or public access to such documents are unaffected by the terms of this Agreement.
7. The City shall be responsible for providing necessary support and resources to enable PPB to fulfill its obligations under this Agreement. The improvements outlined in this Agreement will require the dedication of additional funds and personnel.
8. The purpose of this Agreement is to ensure that the City and PPB, by and through their officials, agents, employees, and successors, undertake the actions required by the Agreement, which in turn will resolve the concerns expressed by the United States in its complaint. The United States greatly appreciates the effort and expertise the current PPB leadership team has contributed to the investigation, agreement, and ongoing reform processes. The United States feels that continuity of management and effort is essential for timely compliance with the terms of this Agreement.

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II. DEFINITIONS Unless otherwise noted, the following terms and definitions shall apply to this Agreement: 9. “Chief” means the Chief of Police of the Portland Police Bureau or his or her authorized designee. 10. “City” means the City of Portland, including its agents, officers, and employees in their official capacity. 11. “C-I-Team” stands for Crisis Intervention Team. 12. “C-I-Training” stands for Crisis Intervention Training, which is training on how to respond to persons in behavioral or mental health crisis, including persons under the influence of drugs or alcohol. Officers who receive such training are “C-I- Trained.” 13. “City Auditor” is the City Auditor, whose duties regarding independent police oversight are governed by Portland City Code Chapter 3.21. 14. “COCL” refers to the Compliance Officer Community Liaison, discussed in detail in Section X. 15. “Complainant” means any person, including a PPB officer or employee, who makes a complaint against PPB or a sworn officer. 16. “Complaint” means any complaint made to the City by a member of the public, a PPB officer, or a civilian PPB employee of alleged misconduct by a sworn PPB employee. 17. Computer-Assisted Dispatch (“CAD”) is a computerized method of dispatching police officers on a service call. It can also be used to send messages to the dispatcher and store and retrieve data (i.e., radio logs, field interviews, schedules, etc.). PPB Manual 612.00. 18. “CRC” is the Citizen Review Committee, whose duties are governed by Portland City Code Section 3.21.080. 19. “Critical firearm discharge” means each discharge of a firearm by a PPB officer. This

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term includes discharges at persons where no one is struck. This term is not intended to include discharges at the range or in training or negligent discharges not intended as an application of force, which are still subject to administrative investigation.
20. “Day” means a calendar day. 21. “Demographic category” means to the extent such information is currently collected by PPB, age, race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, source of income, or gender identity. 22. “Discipline” means a personnel action for violation of an established law, regulation, rule, or PPB policy, including written reprimand, suspension, demotion, or dismissal. 23. “DOJ” refers jointly to the Civil Rights Division of the United States Department of Justice and the United States Attorney’s Office for the District of Oregon. 24. “ECW” means Electronic Control Weapon, a weapon, including Tasers, designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and overrides the subject’s voluntary motor responses. 25. “ECW application” means the contact and delivery of electrical impulse to a subject with an ECW. 26. “Effective Date” means the date this Agreement is entered by the Court. 27. “EIS” means the Employee Information System as provided in PPB Manual 345.00. 28. “Ensure” means that the City and PPB are using objectively good faith efforts to achieve the outcome desired. 29. “Exigent circumstances” means circumstances in which a reasonable person would believe that imminent and serious bodily harm to a person or persons is about to occur. 30. “Firearm” is any instrument capable of discharging ammunition as defined in PPB Manual 1020.00.

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31. “Force” means any physical coercion used to effect, influence or persuade an individual to comply with an order from an officer. The term shall not include the ordinary handcuffing of an individual who does not resist.
32. “IA” means the Internal Affairs unit of PPB’s Professional Standards Division (“PSD”).
33. “Implement” or “implementation” means the development or putting into place of a policy or procedure, including the appropriate training of all relevant personnel, and the consistent and verified performance of that policy or procedure in actual practice through the regular use of audit tools.
34. “Including” means “including, but not limited to.” 35. “Inspector” is a command position in the PSD responsible for reviewing all uses of force and making recommendations regarding improvements to systems of accountability in relation to force management. 36. “IPR” means the Independent Police Review Division, an independent, impartial office, readily available to the public, responsible to the City Auditor, empowered to act on complaints against sworn PPB members for alleged misconduct, and recommend appropriate changes of PPB policies and procedures toward the goals of safeguarding the rights of persons and of promoting higher standards of competency, efficiency, and justice in the provision of community policing services, governed by Portland City Code Chapter 3.21. 37. “Less-lethal” force means a force application that is not intended or expected to cause death or serious injury and that is commonly understood to have less potential for causing death or serious injury than conventional, more lethal police tactics. Nonetheless, use of less-lethal force can result in death or serious injury. 38. “Lethal force” means any use of force likely to cause death or serious physical injury,

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including the use of a firearm, carotid neck hold, or strike to the head, neck, or throat with a hard object.
39. “Line Investigation” or “Directive 940.00 Investigation” means the use of force investigation conducted pursuant to PPB Directive 940.00.
40. “Mental Health Crisis” means an incident in which someone with an actual or perceived mental illness is experiencing intense feelings of personal distress (e.g., anxiety, depression, anger, fear, panic, hopelessness), obvious changes in functioning (e.g., neglect of personal hygiene, unusual behavior) and/or catastrophic life events (e.g., disruptions in personal relationships, support systems or living arrangements; loss of autonomy or parental rights; victimization or natural disasters), which may, but not necessarily, result in an upward trajectory of intensity culminating in thoughts or acts that are dangerous to self and/or others.
41. “Mental Illness” is a medical condition that disrupts an individual’s thinking, perception, mood, and/or ability to relate to others such that daily functioning and coping with the ordinary demands of life are diminished. Mental illness includes, but is not limited to, serious mental illnesses such as major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder (“OCD”), panic disorder, posttraumatic stress disorder (“PTSD”), and borderline personality disorder. Mental illness includes individuals with dual diagnosis of mental illness and another condition, such as drug and/or alcohol addiction.
42. “Misconduct” means conduct by a sworn officer that violates PPB regulations or orders, or other standards of conduct required of City employees.
43. “Misconduct complaint” means any allegation of improper conduct by a sworn officer, whether the complaint alleges corruption or other criminal misconduct; a violation of law; or a violation of PPB policy, procedure, regulations, orders, or other standards of conduct required of City employees including, but not limited to, the improper use of force. This definition is not

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intended to create a right of appeal to the CRC for lethal force or in-custody death cases. 44. “Mobile Crisis Prevention Team” (formerly Mobile Crisis Unit) means the team of a
PPB patrol officer and mental health case worker who are specifically detailed to conduct outreach and response to persons with known mental illness or experiencing an actual or perceived mental health crisis, with the goal of intervening with individuals before a crisis exists and to link the individual with community mental health services.
45. “Non-disciplinary corrective action” refers to action other than discipline taken by a PPB supervisor to enable or encourage an officer to improve his or her performance.
46. “Passive resistance” means non-compliance with officer commands that is nonviolent and does not pose an immediate threat to the officer or the public.
47. “Personnel” means PPB officers and employees. 48. “Police officer” or “officer” means any law enforcement agent employed by or volunteering for PPB, including supervisors, reserve officers, and cadets. 49. Police Review Board (“PRB”) is an advisory body to the Chief governed by Portland City Code § 3.20.140. The PRB makes recommendations as to findings and proposed officer discipline to the Chief. 50. “Policies and procedures” means regulations or directives, regardless of the name, describing the duties, functions, and obligations of PPB officers and/or employees, and providing specific direction in how to fulfill those duties, functions, or obligations. 51. “PPB Manual” refers to PPB’s Policy and Procedure Manual, revised January 2009, and includes the most current edition and supplements thereto. 52. “PPB unit” or “unit” means any designated organization of officers within PPB, including precincts and specialized units. 53. Portland Police Data System (“PPDS”) is PPB’s records management system that

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integrates officers’ access to other agency systems such as LEDS, NCIC/III, DMV, DA-Crimes, ESWIS and OJIN. See, e.g., PPB Manual 1226.00.
54. “Precinct” refers to one of the service areas of PPB, which together cover the entire geographic area of the City of Portland. Each precinct is led by a precinct commander.
55. “Probable cause” means that there is a substantial objective basis for believing that, more likely than not, an offense has been committed and a person to be arrested has committed it.
56. “PSD” means the Professional Standards Division, the PPB unit charged with, among other tasks, conducting or overseeing all internal and administrative investigations of PPB officers, agents, and employees arising from complaints, whose current duties are governed by PPB Manual 330.00.
57. “Qualified Mental Health Professional” means an individual who has, at a minimum, a masters-level education and training in psychiatry, psychology, counseling, social work, or psychiatric nursing, and is currently licensed by the State of Oregon to deliver those mental health services he or she has undertaken to provide.
58. “Serious Use of Force” means: (1) all uses of force by a PPB officer that reasonably appear to create or do create a substantial risk of death, serious disfigurement, disability, or impairment of the functioning of any body part or organ; (2) all critical firearm discharges by a PPB officer; (3) all uses of force by a PPB officer resulting in a significant injury, including a broken bone, an injury requiring hospitalization, or an injury deemed to be serious by an officer’s supervisor; (4) all head, neck, and throat strikes with an object or carotid neck holds; (5) force used upon juveniles known or reasonably assumed to be under 15 and females known or reasonably assumed to be pregnant; (6) all uses of force by a PPB officer resulting in a loss of consciousness; (7) more than two applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, regardless of whether the applications are by the same or

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different officers, and regardless of whether the ECW application is longer than 15 seconds, whether continuous or consecutive; (8) any strike, blow, kick, ECW application, or similar use of force against a handcuffed, otherwise restrained, under control, or in custody subject with or without injury; and (9) any use of force referred by an officer’s supervisor to IA that IA deems serious.
59. “Shall” means a mandatory duty. 60. “Supervisor” means a sworn PPB employee at the rank of sergeant or above (or anyone acting in those capacities) and non-sworn personnel with oversight responsibility for other officers. 61. “Supported by evidence” means the standard of proof applied in CRC appeals pursuant to Portland City Code Section 3.21.160. A finding regarding a complaint is “supported by the evidence” when a reasonable person could make the finding regarding a complaint in light of the evidence, whether or not the reviewing body agrees with the finding. The CRC decides whether the recommended finding is supported by the evidence using a reasonable person standard, that is, the CRC decides whether City decision makers could have reached the conclusion they reached based on the evidence developed by the investigation. 62. “Training” means any adult-learning methods that incorporate role- playing scenarios and interactive exercises that instruct officers about how to exercise their discretion at an administrative level, as well as traditional lecture formats. Training also includes testing and/or writings that indicate that the officer comprehends the material taught. 63. “Use of Force” means any physical coercion used to effect, influence, or persuade an individual to comply with an order from an officer, above unresisted handcuffing, including actively pointing a firearm at a person. 64. “Use of force that could result in criminal charges” means that use of force that a reasonable and trained supervisor could conclude would result in criminal charges due to the

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apparent circumstances, such as: (a) the level of force used as compared to the offense committed or resistance encountered; (b) material discrepancies between the force actually used and the use of force as described by the officer; or (c) the nature of the injuries.
65. “Welfare Check” means a response by PPB to a call for service that is unrelated to an allegation of criminal conduct, but is instead to determine whether a person requires assistance for a medical or mental health crisis.
III. USE OF FORCE PPB shall revise its existing use of force policy and force reporting requirements to ensure that all force, particularly force involving persons with actual or perceived mental illness: (a) is used only in accordance with the Constitution and laws of the United States; (b) is no greater than necessary to accomplish a lawful objective; (c) is properly documented, reported, and accounted for; and (d) is properly investigated, reviewed, evaluated, and, if necessary, remedied. PPB shall attempt to avoid or minimize the use of force against individuals in perceived behavioral or mental health crisis, or those with mental illness and direct such individuals to the appropriate services where possible. In addition, PPB shall ensure that officers use non-force and verbal techniques to effect compliance with police orders whenever feasible, especially in the course of conducting welfare checks or effecting arrests for minor offenses or for persons whom officers have reason to believe are experiencing a mental health crisis; de-escalate the use of force at the earliest possible moment; only resort to those use of force weapons, including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function. To achieve these outcomes, PPB shall implement the requirements set out below.

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A. Use of Force Policy 66. PPB shall maintain the following principles in its existing use of force policies: a. PPB shall use only the force reasonably necessary under the totality of circumstances to lawfully perform its duties and to resolve confrontations effectively and safely; and b. PPB expects officers to develop and display, over the course of their practice of law enforcement, the skills and abilities that allow them to regularly resolve confrontations without resorting to force or the least amount of appropriate force. 67. PPB shall add to its use of force policy and procedures the following use of force
principles: a. Officers shall use disengagement and de-escalation techniques, when possible, and/or call in specialized units when practical, in order to reduce the need for force and increase officer and civilian safety; b. In determining whether to use force, officers will take into account all information, when feasible, including behavior, reports, and known history as conveyed to or learned by the officer by any means, indicating that a person has, or is perceived to have, mental illness; c. The use of force shall be de-escalated as resistance decreases and the amount of force used, including the number of officers who use force, shall deescalate to a level reasonably calculated to maintain control with the least amount of appropriate force; and d. Objectively unreasonable uses of force shall result in corrective action and/or discipline, up to and including termination.

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1. Electronic Control Weapons 68. PPB shall revise PPB Directive 1051.00 regarding Taser, Less- Lethal Weapon System to include the following principles:
a. Prohibition against the use of ECWs for pain compliance against those suffering from mental illness or emotional crisis except in exigent circumstances, and then only to avoid the use of a higher level of force;
b. Unless it would present a danger to the officer or others, that officers shall issue a verbal warning, or attempt to utilize hand signals where there is a language barrier or the subject is hearing impaired, prior to deploying their ECW;
c. Officers shall follow protocols developed by PPB in conjunction with medical professionals on their responsibilities following ECW use;
d. Only one ECW at a time may be used on a subject, intentionally, except where lethal force would be permitted;
e. After one standard ECW cycle (5 seconds), the officer shall reevaluate the situation to determine if subsequent cycles are necessary, including waiting for a reasonable amount of time to allow the subject to comply with the warning. Officers shall describe and explain the reasonableness of each ECW cycle in their use of force reports;
f. Officers shall make every reasonable effort to attempt handcuffing during and between each ECW cycle. Officers should avoid deployments of more than three ECW cycles unless exigent circumstances warrant use;
g. ECWs shall not be used on handcuffed or otherwise restrained persons, unless doing so is necessary to prevent them from causing serious physical

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injury to themselves or others, or if lesser attempts of control have been ineffective and/or to avoid greater application of use of force; and h. Officers receive annual ECW in service training including proficiency and policy changes, if any. 2. Use of Force Reporting Policy and Use of Force Report 69. PPB shall revise its policies related to use of force reporting, as necessary, to require that: a. All PPB officers that use force, including supervisory officers, draft timely use of force reports that include sufficient information to facilitate a thorough review of the incident in question by supervisory officers; and b. All officers involved or witnesses to a use of force provide a full and candid account to supervisors. c. In case of an officer involved shooting resulting in death, use of lethal force, or an in-custody death, PPB will fulfill its reporting and review requirements as specified in directive 1010.10, as revised. This will take place of Directive 940.00 reports for purposes of paragraphs 70, and 72-77 of this Agreement. 3. Use of Force Supervisory Investigations and Reports 70. PPB shall continue enforcement of Directive 940.00, which requires supervisors who receive notification of a force event to respond to the scene, conduct an administrative review and investigation of the use of force, document their findings in an After Action Report and forward their report through the chain of command. PPB shall revise Directive 940.00 to further require that supervisory officers: a. Complete After Action Reports within 72 hours of the force event; b. Immediately notify his or her shift supervisor and PSD regarding all officer’s

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Serious Use of Force, any Use of Force against persons who have actual or perceived mental illness, or any suspected misconduct. Where the supervisor suspects possible criminal conduct, the supervisor shall notify the PPB Detective Division. Where there is no misconduct, supervisors also shall determine whether additional training or counseling is warranted. PPB shall then provide such counseling or training consistent with this Agreement; c. Where necessary, ensure that the subject receives medical attention from an appropriate medical provider; and d. Interview officers individually and not in groups. 71. PPB shall maintain adequate patrol supervision staffing, which at a minimum, means that PPB and the City shall maintain its current sergeant staffing level, including the September 2012 addition of 15 sergeants. 72. PPB shall develop a supervisor investigation checklist to ensure that supervisors carry out these force investigation responsibilities. PPB shall review and revise the adequacy of this checklist regularly, at least annually. 73. PPB shall revise its policies concerning chain of command reviews of After Action Reports, as necessary, to require that: a. EIS tracks all Directive 940.00 material findings and corrections; b. All supervisors in the chain of command are subject to and receive corrective action or discipline for the accuracy and completeness of After Action Reports completed by supervisors under their command; c. All supervisors in the chain of command are accountable for inadequate reports and analysis; d. A supervisor receives the appropriate corrective action, including training,

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demotion, and/or removal from a supervisory position when he or she repeatedly conducts deficient investigations. Where a shift commander, or precinct commander, repeatedly permits deficient investigations, the shift commander, or precinct commander, receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position; e. When, after investigation, a use of force is found to be out of policy, PPB shall take appropriate corrective action consistent with the Accountability provisions of this Agreement; f. Where the use of force indicates policy, training, tactical, or equipment concerns, the immediate supervisor shall notify the Inspector and the Chief, who shall ensure that PPB timely conducts necessary training and that PPB timely resolves policy, tactical, or equipment concerns; and g. The Chief or designee, as well as PSD, has discretion to re- assign a use of force investigation to the Detective Division or any PPB supervisor. B. Compliance Audits Related to Use of Force 74. In consultation with the COCL, the Inspector, as part of PPB’s quarterly review of force, will audit force reports and Directive 940.00 Investigation Reports to ensure that: a. With respect to use of force generally: i. reports describe the mental health information available to officers and the
role of that information in their decision making; ii. officers do not use force against people who engage in passive resistance
that does not impede a lawful objective; iii. when resistance decreases, officers de-escalate to a level reasonably

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calculated to maintain control with the least amount of appropriate force; iv. officers call in specialty units in accordance with procedure; v. officers routinely procure medical care at the earliest available opportunity
when a subject is injured during a force event; and vi. officers consistently choose options reasonably calculated to establish or
maintain control with the least amount of appropriate force. b. With respect to ECW usages:
i. ECW deployment data and Directive 940.00 reports are consistent, as determined by random and directed audits. Discrepancies within the audit should be appropriately investigated and addressed;
ii. officers evaluate the reasonableness and need for each ECW cycle and justify each cycle; when this standard is not met, this agreement requires supervisor correction;
iii. officers are universally diligent in attempting to use hands-on control when practical during ECW cycles rather than waiting for compliance; and
iv. officers do not attempt to use ECW to achieve pain compliance against subjects who are unable to respond rationally unless doing so is reasonably calculated to prevent the use of a higher level of force.
c. With respect to use of force reporting, the reports: i. are completed as soon as possible after the force incident occurs, but no later than the timeframes required in policy; ii. include a detailed description of the unique characteristics of the event, using common everyday language, sufficient to allow supervisors to accurately evaluate the quality of the officer’s decision making and
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performance;

iii. include a decision point description of the force decision making;

iv. include a detailed description of the force used, to include descriptive

information regarding the use of any weapon;

v. include a description of any apparent injury to the suspect, any complaint

of injury, or the absence of injury (including information regarding any

medical aid or on-scene medical evaluation provided);

vi. include the reason for the initial police presence;

vii. include a description of the level of resistance encountered by each officer

that led to each separate use of force and, if applicable, injury;

viii. include a description of why de-escalation techniques were not used or

whether they were effective;

ix. include whether the individual was known by the officer to be mentally ill

or in mental health crisis;

x. include a general description of force an officer observes another officer

apply; and

xi. demonstrate that officers consistently make diligent efforts to document

witness observations and explain when circumstances prevent them from

identifying witnesses or obtaining contact information. Reports will include

all available identifying information for anyone who refuses to provide a

statement.

75. In consultation with the COCL, the Inspector shall audit force reports and Directive

940.00 investigations to determine whether supervisors consistently:

a. Complete a Supervisor’s After Action Report within 72 hours of notification;

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76. Page 20

b. Review all use of force reports to ensure they include the information required by this Agreement and PPB policy;
c. Evaluate the weight of the evidence; d. Use a “decision-point” approach to analyze each use of force; e. Determine whether the officer’s actions appear consistent with PPB policy,
this Agreement, and best practices; f. Determine whether there was legal justification for the original stop and/or
detention; g. Assess the incident for tactical and training implications, including whether
the use of force may have been avoided through the use of de-escalation techniques or lesser force options; h. Determine whether additional training or counseling is warranted; i. Implement corrective action whenever there are material omissions or inaccuracies in the officers’ use of force report, and for failing to report a use of force, whether applied or observed; j. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, or poor tactical decisions in EIS; k. Notify PSD and the shift supervisor of every incident involving an officer’s Serious Use of Force, and any Use of Force that could appear to a reasonable supervisor to constitute misconduct; and l. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear to a supervisor that an officer engaged in criminal conduct. In consultation with the COCL, the Inspector shall conduct a quarterly analysis of Amended Settlement Agreement Pursuant to Fed. R. Civ. P. 41(a)(2) United States v. City of Portland, Case No. 3:12-cv-02265-SI

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force data and supervisors’ Directive 940.00 reports designed to:

a. Determine if significant trends exist;

b. Determine if there is variation in force practice away from PPB policy in any

unit;

c. Determine if any officer, PPB unit, or group of officers is using force

differently or at a different rate than others, determine the reason for any

difference and correct or duplicate elsewhere, as appropriate;

d. Identify and correct deficiencies revealed by the analysis; and

e. Document the Inspector’s findings in an annual public report.

77. In consultation with the COCL, the Inspector shall audit the adequacy of chain of

command reviews of After Action Reports using the following performance standards to ensure that

all supervisors in the chain of command:

a. Review Directive 940.00 findings using a preponderance of the evidence

standard;

b. Review Directive 940.00 reports to ensure completeness and order additional

investigation, when necessary;

c. Modify findings as appropriate and document modifications;

d. Order additional investigation when it appears that there is additional

relevant evidence that may assist in resolving inconsistencies or improve the

reliability or credibility of the findings and counsel the investigator;

e. Document any training deficiencies, policy deficiencies, or poor tactical

decisions, ensure a supervisor discusses poor tactical decisions with the

officer and ensure the discussion is documented in EIS;

f. Suspend an investigation immediately and notify the branch Assistant Chief,

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the Director of PSD, and the Detectives Division whenever the investigating supervisor, shift commander or Division commander finds evidence of apparent criminal conduct by a PPB officer; and g. Reports a matter to PSD for review and investigation whenever an investigating supervisor, shift commander or precinct commander finds evidence of apparent misconduct by a PPB officer or employee.
IV. TRAINING 78. All aspects of PPB training shall reflect and instill agency expectations that officers are committed to the constitutional rights of the individuals who have or are perceived to have mental illness whom they encounter, and employ strategies to build community partnerships to effectively increase public trust and safety. To achieve these outcomes, PPB shall implement the requirements below. 79. The Training Division shall review and update PPB’s training plan annually. To inform these revisions, the Training Division shall conduct a needs assessment and modify this assessment annually, taking into consideration: (a) trends in hazards officers are encountering in performing their duties; (b) analysis of officer safety issues; (c) misconduct complaints; (d) problematic uses of force; (e) input from members at all levels of PPB; (f) input from the community; (g) concerns reflected in court decisions; (h) research reflecting best practices; (i) the latest in law enforcement trends; (j) individual precinct needs; and (k) any changes to Oregon or federal law or PPB policy. 80. Within 180 days of the Effective Date, PPB shall develop and implement a process that provides for the collection, analysis, and review of data regarding the effectiveness of training for the purpose of improving future instruction, course quality, and curriculum. These evaluations shall measure and document student satisfaction with the training received; student learning as a

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result of training; and the extent to which program graduates are applying the knowledge and skills acquired in training to their jobs. This audit shall be reported to the Training Division Manager and shall include student evaluations of the program and the instructor.
81. PPB shall ensure that the Training Division is electronically tracking, maintaining, and reporting complete and accurate records of current curricula, lesson plans, training delivered, attendance records, and other training materials in a central, commonly-accessible, and organized file system. Each officer’s immediate supervisor shall review the database for the officers under his/her command at least semi-annually.
82. PPB shall report training delivered and received semi-annually to the Assistant Chief of Operations and, during the pendency of this Agreement, to DOJ.
83. PPB shall institute guidelines to govern its selection of officers that serve as trainers and shall ensure that those officers do not have a history of using excessive force. The trainer selection guidelines shall prohibit the selection of officers who have been subject to disciplinary action based upon the use of force or mistreatment of people with mental illness within the three (3) preceding years, or twice in the preceding five (5) years, and will take into account if a civil judgment has been rendered against the City in the last five (5) years based on the officer’s use of force.
84. All training that PPB provides shall conform to PPB’s current policies at the time of training. PPB shall train all officers on the Agreement’s requirements during the next in-service training scheduled.
a. With respect to patrol officers, PPB shall: i. increase the use of role-playing scenarios and interactive exercises that illustrate proper use of force decision making, specifically including interactions with people who have or are perceived to have mental illness, including training officers on the importance and impact of ethical decision

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making and peer intervention; ii. emphasize the use of integrated de-escalation techniques, when
appropriate, that encourage officers to make arrests without using force; iii. continue to provide training regarding an officer’s duty to procure medical
care whenever a subject is injured during a force event, and enhance and revise training as necessary to ensure that PPB’s training in this regard is proactive and responsive to deficiencies identified by the Inspector, if any; iv. continue to train on proactive problem solving and to utilize, when appropriate, disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, requesting specialized units, including CIT officers and mental health professionals, or delaying arrest; v. describe situations in which a force event could lead to potential civil or criminal liability; and vi. continue to train officers to avoid using profanity, prohibit using derogatory/demeaning labels, and also avoiding terms not currently appropriate for person-center communication, such as the term “mentals,” in all work-related settings and communications, as well as when interacting with the public. b. With respect to supervisors, provide additional training on how to: i. conduct use of force investigations, including the supervisory investigatory responsibilities identified in Section III.A.3; ii. evaluate officer performance as part of PPB’s annual performance evaluation system; and iii. foster positive career development and impose appropriate disciplinary Amended Settlement Agreement Pursuant to Fed. R. Civ. P. 41(a)(2) United States v. City of Portland, Case No. 3:12-cv-02265-SI

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sanctions and non-disciplinary corrective action. 85. In consultation with the COCL, the Inspector shall audit the training program using the following performance standards to ensure that PPB does the following:
a. Conducts a comprehensive needs assessment annually; b. Creates a Training Strategic Plan annually; c. Within 180 days of the Effective Date, develops and implements a process
for evaluation of the effectiveness of training; d. Maintains accurate records of Training delivered, including substance and
attendance; e. Makes Training Records accessible to the Director of Services, Assistant
Chief of Operations, and DOJ; f. Trains Officers, Supervisors, and Commanders on areas specific to their
responsibilities; and g. Ensures that sworn PPB members are provided a copy of all PPB directives
and policies issued pursuant to this Agreement, and sign a statement acknowledging that they have received, read, and had an opportunity to ask questions about the directives and/or policies, within 30 days of the release of the policy. 86. In consultation with the COCL, the Inspector shall gather and present data and analysis on a quarterly basis regarding patterns and trends in officers’ uses of force to the Chief, the PPB Training Division, and to the Training Advisory Council. The Training Division and Training Advisory Council shall make written recommendations to the Chief regarding proposed changes in policy, training, and/or evaluations based on the data presented. The Inspector shall also, in coordination with the COCL and PSD, identify problematic use of force patterns and training

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deficiencies. The Chief’s Office shall assess all use of force patterns identified by the Training Division and/or Training Advisory Council and timely implement necessary remedial training to address deficiencies so identified.
87. Training Advisory Council meetings will be open to the public unless the matter under discussion is confidential or raises public safety concerns, as determined by the Chief.
V. COMMUNITY-BASED MENTAL HEALTH SERVICES 88. The absence of a comprehensive community mental health infrastructure often shifts to law enforcement agencies throughout Oregon the burden of being first responders to individuals in mental health crisis. Under a separate agreement, the United States is working with State of Oregon officials in a constructive, collaborative manner to address the gaps in state mental health infrastructure. The state-wide implementation of an improved, effective community- based mental health infrastructure should benefit law enforcement agencies across the State, as well as people with mental illness. The United States acknowledges that this Agreement only legally binds the City to take action. Nonetheless, in addition to the City, the United States expects the City’s partners to help remedy the lack of community-based addiction and mental health services to Medicaid clients and uninsured area residents. The City’s partners in the provision of community- based addiction and mental health services include: the State of Oregon Health Authority, area Community Care Organizations (“CCOs”), Multnomah County, local hospitals, health insurance providers, commercial health providers, and existing Non-Governmental Organizations (“NGOs”) such as community-based mental health providers, and other stakeholders. 89. The United States expects that the local CCOs will establish, by mid- 2013, one or more drop-off center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. All such drop off/walk in centers should focus care plans on appropriate discharge and community- based treatment options, including assertive

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community treatment teams, rather than unnecessary hospitalization. 90. The CCOs will immediately create addictions and mental health- focused
subcommittee(s), which will include representatives from PPB’s Addictions and Behavioral Health Unit (“ABHU”), the ABHU Advisory Board, Portland Fire and Rescue, Bureau of Emergency Communications (“BOEC”) and other City staff. These committees will pursue immediate and long-term improvements to the behavioral health care system. Initial improvements include:

a. Increased sharing of information, subject to lawful disclosure, between agencies and organizations including BOEC, Multnomah County, and health care providers to create an information exchange among first responders and providers to better serve those suffering from mental illness;

b. Creation of rapid-access clinics so those in crisis have access to timely medication management appointments;
c. Enhancing access to primary care providers to shift low-to- moderate acuity patients to primary care programs creating more capacity for acute patients in existing outpatient crisis mental health systems;

d. Expanding the options and available capacity for BOEC Operators to appropriately divert calls to qualified civilian mental health providers as first responders;
e. Addressing issues of unmet needs identified by Safer PDX and its community partners;

f. Expanding and strengthening networks of Peer-Mediated services to:

i. develop a referral guide delineating these services and locations and assist with accessing information;

ii. better educate the community of the viability of these services as alternative

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first engagement sites/programs for those having difficulty engaging with “professional driven” services; iii. expand peer services connected to peer supports in the community for inpatient psychiatric units (including Emergency Departments) and in the community; iv. add peer guides to work alongside Emergency Department guides for those patients with behavioral health issues entering the Emergency Department; and v. evaluate opportunities to expand use of peers to coordinate with PPB ABHU (as described herein) and function as a link with impacted individuals; and g. pursue tele-psychiatry (a provision of mental health care by video conferencing) as a way for first responders to take advantage of existing IT infrastructure to provide direct care or provider- evaluation supporting the provision of appropriate services to an individual in crisis.
VI. CRISIS INTERVENTION The City acknowledges that the community of consumers of mental health services, and their families and advocates, have an interest in interactions between PPB and people experiencing mental health symptoms or crises. The PPB will add new capacity and expertise to deal with persons perceived or actually suffering from mental illness, or experiencing a mental health crisis as required by this Agreement. Despite the critical gaps in the state and local mental health system, the City and PPB must be equipped to interact with people in mental health crisis without resorting to unnecessary or excessive force.

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A. Addictions and Behavioral Health Unit and Advisory Committee 91. In order to facilitate PPB’s successful interactions with mental health consumers and
improve public safety, within 60 days of the Effective Date, PPB shall develop an Addictions and Behavioral Health Unit (“ABHU”) within the PPB. PPB shall assign command-level personnel of at least the rank of Lieutenant to manage the ABHU. ABHU shall oversee and coordinate PPB’s Crisis Intervention Team (“C-I Team”), Mobile Crisis Prevention Team (“MCPT”), and Service Coordination Team (“SCT”), as set forth in this Agreement.
92. ABHU will manage the sharing and utilization of data that is subject to lawful disclosure between PPB and Multnomah County, or its successor. PPB will use such data to decrease law enforcement interactions or mitigate the potential uses of force in law enforcement interactions with consumers of mental health services.
93. ABHU shall track outcome data generated through the C-I Team, MCPT, and SCT, to: (a) develop new response strategies for repeat calls for service; (b) identify training needs; identify and propose solutions to systemic issues that impede PPB’s ability to provide an appropriate response to a behavioral crisis event; and (c) identify officers’ performance warranting commendation or correction.
94. Within 90 days of the Effective Date, PPB shall also establish an ABHU Advisory Committee. The ABHU Advisory Committee shall include representation from: PPB command leadership, CIT, MCPT, and SCT; BOEC; civilian leadership of the City government; and shall seek to include representation from: the Multnomah County’s Sheriff’s Office; Oregon State Department of Health and Human Services; advocacy groups for consumers of mental health services; mental health service providers; coordinated care organizations; and persons with lived experience with mental health services.
95. The ABHU Advisory Committee shall provide guidance to assist the City and PPB

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in the development and expansion of C-I Team, MCPT, SCT, BOEC Crisis Triage, and utilization of community-based mental health services. The ABHU Advisory Committee shall analyze and recommend appropriate changes to policies, procedures, and training methods regarding police contact with persons who may be mentally ill or experiencing a mental health crisis, with the goal of de-escalating the potential for violent encounters. The ABHU Advisory Committee shall report its recommendations to the ABHU Lieutenant, PPB Compliance Coordinator, COCL (as described herein), and the BOEC User Board.
96. Within 240 days of the Effective Date of this Agreement, the ABHU Advisory Committee will provide status reports on the implementation of the ABHU and BOEC Crisis Triage, and identify recommendations for improvement, if necessary. PPB will utilize the ABHU Advisory Committee’s recommendations in determining appropriate changes to systems, policies, and staffing. B. Continuation of C-I Program
97. PPB provides C-I Training to all its officers. C-I is a core competency skill for all sworn police officers in the City. PPB shall continue to train all officers on C-I.
98. PPB agrees to continue to require a minimum of 40 hours of C-I training to all officers before officers are permitted to assume any independent patrol or call- response duties. Additionally, PPB shall include C-I refresher training for all officers as an integral part of PPB’s ongoing annual officer training. PPB’s Training Division, in consultation with ABHU Advisory Committee, shall determine the subjects and scope of initial and refresher C-I training for all officers. C. Establishing “Memphis Model” Crisis Intervention Team
99. Within 120 days of the Effective Date, PPB shall establish a Memphis Model Crisis Intervention team (“C-I Team”).

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100. PPB’s C-I Team shall be comprised of officers who volunteer for assignment to the C-I Team. The number of C-I Team members will be driven by the demand for C-I Team services, with an initial goal of 60-80 volunteer, qualified officers.
101. No officers may participate in C-I Team if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of C-I Team service, or during C-I Team service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the C-I Team.
102. PPB shall specially train each C-I Team member before such member may be utilized for C-I Team operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for C-I Team members consistent with the Memphis Model.
103. C-I Team members will retain their normal duties until dispatched for use as a C-I Team. BOEC or PPB may dispatch C-I Team members to the scene of a crisis event.
104. PPB will highlight the work of the C-I Team to increase awareness of the effectiveness of its work.
105. For each crisis event to which a C-I Team is dispatched, the C-I Team member shall gather data that ABHU shall utilize to track and report data on public safety system interactions with individuals with perceived or actual mental illness or who are in crisis. These data shall include:
a. Date, time, and location of the incident; b. Subject’s name, age, gender, and address; c. Whether the subject was armed, and the type of weapon; d. Whether the subject is a U.S. military veteran; e. Complainant’s name and address; f. Name and DPSST number of the officer on the scene;

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g. Whether a supervisor responded to the scene; h. Techniques or equipment used; i. Any injuries to officers, subject, or others; j. Disposition; k. Whether a mental health professional responded to the scene; l. Whether a mental health professional contacted the subject as a result of the
call; and m. A brief narrative of the event (if not included in any other document). D. Mobile Crisis Prevention Team 106. PPB currently has an MCPT comprised of a two-person team, one sworn officer and one contractor who is a qualified mental health professional. Within 120 days of the Effective Date, City shall expand MCPT to provide one MCPT car per PPB precinct. 107. Each MCPT car shall be staffed by one sworn PPB officer and one qualified mental health professional. MCPT shall be the fulltime assignment of each such officer. 108. No officers may participate in MCPT if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of MCPT service, or during MCPT service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the MCPT. 109. PPB shall specially train each MCPT member before such member may be utilized for MCPT operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for MCPT members. 110. MCPT shall utilize C-I Team data to proactively address mental health service, in part, by connecting service recipients with service providers.

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111. Within 180 days of the Effective Date, PPB, with the advice of the ABHU Advisory Committee, shall develop policies and procedures for the transfer of custody or voluntary referral of individuals between PPB, receiving facilities, and local mental health and social service agencies. These policies and procedures shall clearly describe the roles and responsibilities of these entities and of MCPT officers in the process. E. Service Coordination Team
112. The Service Coordination Team (“SCT”), or its successor, shall serve to facilitate the provision of services to individuals who interact with PPB that also have a criminal record, addictions, and highly acute mental or physical health service needs. F. BOEC
113. Within 120 days of the Effective Date, BOEC and PPB, with the advice of the ABHU Advisory Committee, shall complete policies and procedures to triage calls related to mental health issues, including changes to protocols for assigning calls to Multnomah County Crisis Call Center, and adding new or revised policies and protocols to assign calls to the PPB ABHU or directly to NGOs or community-based mental health professionals.
114. Within 180 days of the Effective Date, the City will complete training of all BOEC Dispatchers in Crisis Triage. The City, with the advice of the ABHU Advisory Committee, shall develop ongoing training for BOEC Dispatchers.
115. Within 180 days of the Effective Date, the City shall ensure Crisis Triage is fully operational to include the implementation of the policies and procedures developed pursuant to the above paragraph and operation by trained staff.
VII. EMPLOYEE INFORMATION SYSTEM 116. PPB has an existing Employee Information System (“EIS”) to identify employees and design assistance strategies to address specific issues affecting the employee. See PPB Manual

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345.00. PPB agrees to enhance its EIS to more effectively identify at-risk employees, supervisors and teams to address potentially problematic trends in a timely fashion. Accordingly, within 90 days of the Effective Date, PPB shall:
a. Require that commanders and supervisors conduct prompt reviews of EIS records of employees under their supervision and document the review has occurred in the EIS performance tracker;
b. Require that commanders and supervisors promptly conduct reviews of EIS for officers new to their command and document the review has occurred in the EIS performance tracker; and
c. Require that EIS staff regularly conduct data analysis of units and supervisors to identify and compare patterns of activity.
117. PPB agrees to use force audit data to conduct similar analyses at supervisor- and team-levels.
118. PPB shall continue to use existing thresholds, and specifically continue to include the following thresholds to trigger case management reviews:
a. Any officer who has used force in 20% of his or her arrests in the past six months; and
b. Any officer who has used force three times more than the average number of uses of force compared with other officers on the same shift.
119. Within 90 days of the Effective Date, PPB shall add one additional threshold to trigger case management review any officer who has three uses of force in a one-month period.
120. Within 90 days of the Effective Date, PPB shall PPB identify and train a second EIS administrator. This individual may be assigned to other tasks within the Professional Standards Division or as otherwise needed.

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VIII. OFFICER ACCOUNTABILITY PPB and the City shall ensure that all complaints regarding officer conduct are fairly addressed; that all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. The City and PPB seek to retain and strengthen the citizen and civilian employee input mechanisms that already exist in the PPB’s misconduct investigations by retaining and enhancing IPR and CRC as provided in this Agreement. A. Investigation Timeframe 121. PPB and the City shall complete all administrative investigations of officer misconduct within one-hundred eighty (180) days of receipt of a complaint of misconduct, or discovery of misconduct by other means. For the purposes of this provision, completion of administrative investigations includes all steps from intake of allegations through approval of recommended findings by the Chief, excluding appeals, if any, to CRC. Appeals to CRC should be resolved within 90 days. 122. PPB shall conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a concurrent criminal investigation, or as otherwise provided by law, or as necessary to meet the CRC or PRB recommendation to further investigate. 123. If PPB is unable to meet these timeframe targets, it shall undertake and provide to DOJ a written review of the IA process, to identify the source of the delays and implement an action plan for reducing them.

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B. On Scene Public Safety Statements and Interviews 124. Within 90 days of the Effective Date, the City and PPB shall review its protocols for
compelled statements to PSD and revise as appropriate so that it complies with applicable law and current professional standards, pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). The City will submit the revised protocol to DOJ for review and approval. Within 45 days of obtaining DOJ’s approval, PPB shall ensure that all officers are advised on the revised protocol.
125. Separation of all witness and involved officers to lethal force events is necessary in order to safeguard the integrity of the investigation of that event. Immediately following any lethal force event, PPB shall continue to issue a communication restriction order (“CRO”) to all witness and involved officers, prohibiting direct or indirect communications between those officers regarding the facts of the event. The CRO will continue, unless extended further, until the conclusion of the Grand Jury or, if no Grand Jury is convened, until a disposition is determined by the District Attorney.
126. PPB shall continue to require witness officers to lethal force events to give an onscene briefing to any supervisor and/or a member of the Detective Division to ensure that victims, suspects, and witnesses are identified, evidence is located, and provide any information that may be required for the safe resolution of the incident, or any other information as may be required.
127. In agreement and collaboration with the Multnomah County District Attorney, PPB shall request that involved officers in lethal force and in-custody death events provide a voluntary, on-scene walk-through and interview, unless the officer is incapacitated. C. Conduct of IA Investigations
128. Currently, both IPR and PPB’s PSD have authority to conduct administrative investigations, provided that IPR interview of PPB Officers must only be conducted jointly with IA. Within 120 days of the Effective Date, the City will develop and implement a plan to reduce time

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and effort consumed in the redundant interview of witnesses by both IPR and IA, and enable meaningful independent investigation by IPR, when IPR determines such independent investigation is necessary.
129. The City and PPB shall ensure that all allegations of use of excessive force are subject to full and completed IA investigations resulting in findings, unless there is clear and convincing evidence to IPR that the allegation has no basis in fact.
130. The City and PPB shall continue to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.
131. The City and PPB shall retain Police Review Board procedures currently utilized for purposes of investigation and making recommended findings on administrative complaints, except as outlined below:
a. Currently, seven voting members of the PRB review use of force incidents, including two citizen members. When PRB reviews uses of force case, one of the two citizen member slots shall be drawn from the Citizen Review Committee members.
b. The CRC slot on the PRB in use of force cases will rotate among the CRC membership so that different CRC members participate on the PRB. Within 60 days of the Effective Date, the Auditor shall develop a membership rotation protocol.
c. All members participating in the PRB must maintain confidentiality and be able to make thoughtful, unbiased, objective recommendations to the Chief of Police and Police Commissioner that are based on facts, consistent with PRB city code provisions and “just cause” requirements set forth in Portland

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City Charter, City rules, and labor agreements. d. Cases in which the member elects, with the concurrence of the Chief and the
Police Commissioner, to accept the investigative findings and recommended discipline. This option will only be available to a member following implementation of code language which shall require at a minimum a full investigation of the alleged misconduct, issuance of the investigative findings, and concurrence with the findings by the Independent Police Review, the Professional Standards Division and the member’s Branch Chief. The scope of cases eligible for stipulated discipline shall be identified in the authorizing code, and cases involving alleged used of excessive force, cases involving alleged discrimination, disparate treatment or retaliation, reviews of officer involved shootings and in-custody deaths, and cases in which the Chief or the Police Commissioner does not agree to accept the member’s proposed stipulation to findings and recommended discipline shall not be eligible for stipulated findings and recommended discipline. e. All community members and CRC members must meet the following qualifications to participate on the PRB: i. Pass a background check performed by the Bureau. ii. Participate in Bureau training to become familiar with police training and
policies, including the PRB process. iii. Sign a confidentiality agreement. iv. Participate in ride-alongs to maintain sufficient knowledge of police patrol
procedures. f. Current city code provides that the City Auditor and the Chief have authority Amended Settlement Agreement Pursuant to Fed. R. Civ. P. 41(a)(2) United States v. City of Portland, Case No. 3:12-cv-02265-SI

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to recommend to City Council the removal of citizen members from the

PRB pool. Likewise, the City Auditor or Chief shall have authority to

recommend to City Council removal of a CRC member from serving on the

PRB. The Chief or the City Auditor may recommend that City Council

remove a community member or member of the CRC from the pool for the

following reasons:

i. Failure to attend training;

ii. Failure to read Case Files;

iii. Objective demonstration of disrespectful or unprofessional conduct;

iv. Repeated unavailability for service when requested;

v. Breach of confidentiality;

vi. Objective demonstration of bias for or against the police; or

vii. Objective demonstration of conflict of interest.

g. Removal from participation in the PRB shall not affect CRC membership.

h. Like current PRB citizen members, CRC members serving on the PRB may

serve in that capacity for no more than three (3) years.

i. A CRC member who participates in a PRB review shall recuse

himself/herself during any later appeal of the same allegation(s) to the CRC.

132. By majority vote, the PRB may request that investigations of misconduct be returned

to its investigating entity, i.e. PSD or IPR, to complete the investigation as to factual matters

necessary to reach a finding regarding the alleged misconduct. The investigating entity must make

reasonable attempts to conduct the additional investigation or obtain the additional information

within 10 business days or provide a written statement to the PRB explaining why additional time is

needed.

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133. If an officer’s use of force gives rise to a finding of liability in a civil trial, PPB shall: (1) enter that civil liability finding in the EIS; (2) reevaluate the officer’s fitness to participate in all current and prospective specialized units ; (3) if no IA investigation has previously been conducted based upon the same allegation of misconduct and reached an administrative finding, conduct a full IA investigation with the civil trial finding creating a rebuttable presumption that the force used also violated PPB policy, which presumption can only be overcome by specific, credible evidence by a preponderance of evidence; (4) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, identify whether any new evidence exists in the record of the civil trial to justify the reopening of the IA investigation, and if so, reinitiate an IA investigation; and (5) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, and no new evidence from the civil trial justifies reopening the IA investigation, work with IPR to identify the reason why the administrative finding was contrary to the civil trial finding and publish a summary of the results of the inquiry. D. CRC Appeals
134. The City shall expand the membership of the CRC to 11 members, representative of the many and diverse communities in Portland, who are neutral, unbiased, and capable of making objective decisions. The quorum of CRC members necessary to act may remain at its existing level.
135. The City and PPB agree that the CRC may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.
136. In its review process for purposes of the appeal, the CRC may make one request for additional investigation or information to the investigating entity, i.e. PSD or IPR at any point during its review. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written

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statement to the CRC explaining why additional time is needed. The request for additional investigation or information may contain multiple points of inquiry, but no follow-up requests will be permitted. The additional request be voted on by a quorum, the members voting must have read the Case File in order to vote, and any request with multiple points of inquiry must be prioritized. E. Discipline
137. Within 60 days of the Effective Date, PPB and the City shall develop and implement a discipline guide to ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors and to provide discipline that is reasonably predictable and consistent. F. Communication with Complainant and Transparency
138. Within 180 days of the Effective Date, the City shall enhance its existing website to ensure that a complainant can file and track his or her own complaint of officer misconduct.
139. Within 120 days of the Effective Date, the City shall review its protocols to ensure that the City shares with complainants requested documentation about his or her own complaint to the extent permitted by law.
140. The City shall ensure that IPR provides each complainant a tracking number upon receipt of the complaint, informs each complainant of the complaint classification, assignment (precinct or IA) and outcome of the complaint (sustained, unproven, etc.) in writing (whether mail, email/text, or fax), including information regarding whether the City took any corrective action. The City Attorney’s Office shall determine whether disclosures regarding corrective action are required on a case- by-case basis consistent with Oregon’s Public Records Law.
IX. COMMUNITY ENGAGEMENT AND CREATION OF PORTLAND COMMITTEE ON COMMUNITY ENGAGED-POLICINGCOMMUNITY
OVERSIGHT ADVISORY BOARD There is significant community and City interest in improving PPB’s community

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relationships. The community is a critical resource. Soliciting community input regarding PPB’s performance Redefining and restructuring existing community input mechanisms to provide for independent oversight of the Agreement, while also enhancing PPB’s current community outreach efforts, will promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety. To achieve this outcome, at a minimum, PPB shall implement the requirements below.
141. To leverage the ideas, talent, experience, and expertise of the community, the City, in consultation with DOJ, shall establish a Community Oversight Advisory Board (“COAB”) Portland Committee on Community Engaged-Policing (“PCCEP”), within 90 days of the Effective Date of the relevant amendments to this Agreement.
142. The COAB PCCEP shall be authorized to: (a) solicit information from the community and the PPB about PPB’s performance, particularly with regard to constitutional policingindependently assess the implementation of this Agreement; (b) make recommendations to the Parties Chief, Police Commissioner, the Director of the Office of Equity and Human Rights, and community and, during the effective period of this Agreement, to the DOJand the COCL on additional actions; (c) advise the Chief and the Police Commissioner on strategies to improve community relations; (d) provide the community with information on the Agreement and its implementation; (e) contribute to the development and implementation of a PPB Community Engagement and Outreach Plan (“CEO Plan”); and (fe) receive public comments and concerns. The composition, selection/replacement process and specific duties of the PCCEP shall be set forth in a separate Plan for Portland Committee on Community-Engaged Policing (“the PCCEP Plan”) which shall be substantially similar to Exhibit 1 to this Agreement. Amicus AMAC and Intervenor PPA shall be consulted regarding and DOJ shall review and approve any amendments to the PCCEP Plan proposed to occur during the effective period of this Agreement.

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142. Membership of the COAB shall be comprised of fifteen (15) voting members, five (5) advisory members, and the COCL.
a. The 15 voting members and the five advisory members shall be selected as follows: i. Each member of City Council will select one representative to serve on the COAB, for a total of five voting representatives; ii. The chair of the Human Rights Commission shall designate one Human Rights Commissioner to serve on the COAB; iii. The chair of the Portland Commission on Disability shall designate one Commissioner on Disability to serve on the COAB; iv. The chair of the Human Rights Commission and the chair of the Portland Commission on Disability shall jointly select three community members to serve as representatives of the mental health community on the COAB, after soliciting and reviewing applications from the public. These three COAB members will possess demonstrated expertise in the field of mental health in the form of either: (a) certification as a Qualified Mental Health Professional; or (b) no less than ten (10) years of demonstrated service to persons with mental illness. These three selections shall be completed within 60 days of the COCL selection. v. The community-at-large will select five voting representatives directly from the community. The process used for this selection is discussed in paragraph 145 herein; and, vi. The Chief will select a diverse group of five sworn officers within

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various ranks to serve as advisors and non-voting members of the COAB, and may consider whether the officer resides in Portland (“Advisory Members”). b. The COAB’s membership will come from a reasonably broad spectrum of the community, such as: areas of expertise, advocacy experience, community involvement, profession, education, race, ethnicity, gender, gender identity, sexual orientation, national origin, age, religion, mental or physical disability and geographic identification. COAB members, including Advisory Members, must live, work, worship, or attend school in the City of Portland. COAB members shall not have an actual or perceived conflict of interest with the City of Portland. 143. PCCEP’s membership will come from a reasonably broad spectrum of the community. PCCEP members shall not have an actual or perceived conflict of interest with the City of Portland. 144. The 15 voting members of COAB are independent of the City and PPB and shall not be currently employed by the City. Members must agree to serve for a minimum of a two-year term, and may be reappointed for one additional year. The COAB may create an executive committee or other subcommittees, as appropriate, to accomplish the tasks designated to it under this Agreement. The City shall provide administrative support so that the COAB PCCEP can perform the duties and responsibilities identified in this Agreement and in the PCCEP Plan. 144. The COAB shall report to the COCL. The COCL will chair the COAB, preside over COAB meetings, take and count votes, and perform such other activities as are necessary for the efficient operation of the COAB. If the COCL determines that a COAB member is no longer fit to serve on account of misconduct, the COCL shall consult with DOJ prior to removing such member.

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Following the removal of a COAB member, an alternative shall be selected from the same pool of applicants as the removed COAB member.
145. Selection of the five (5) community voting members shall be made as follows: a. Each neighborhood coalition in Portland may propose a candidate for membership on the Committee. Any other non-profit organization within the City may also propose a candidate for membership. Any other person who lives, works, or is enrolled in school in Portland and is over the age of 15 may be considered provided they provide the City with the names of 50 verified residents over the age of 15 of the City of Portland who support his or her nomination; b. The City shall widely advertise and hold a public meeting where previously nominated candidates will be selected. Any Portland resident is welcome to attend and participate in the selection process. The City will publicize the meeting throughout all the various communities of Portland; c. At the public meeting, candidates will be given an opportunity to speak and ask for support. In their statements, candidates must indicate whether they live, work, worship, and/or attend school within the City of Portland; d. Attendees at the public meeting and will be asked to select their choice of candidates; i. If there are ten or fewer candidates, then the attendees present will select the top five candidates receiving the most votes; ii. If there are more than ten candidates, a preliminary vote will be taken and the top ten candidates receiving the most votes will be selected and a second vote will be taken to reduce the number to the five

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persons that will serve on the COAB; iii. The next two candidates who receive the most votes shall be
identified as potential alternates, should a COAB member be removed or incapacitated; and, iv. Because the number of persons who may be interested in participating in this process is unknown, the City may adopt other procedures necessary to conduct the meeting and to carry out the intent of these provisions. e. This process of selecting the five community members shall be completed within 60 days of the COCL selection. 146. 145. To ensure constitutional policing, to closely interact with the community to resolve neighborhood problems, and to increase community confidence, PPB shall work with City resources knowledgeable about public outreach processes and the PCCEP to improve its engagement with the community. to develop and finalize a CEO Plan: a. Within 90 days of the COAB selection, the City, in consultation with COAB, will conduct a reliable, comprehensive, and representative survey of members of the Portland community, including civilians and PPB officers, regarding their experiences with and perceptions of PPB’s prior community outreach efforts and accountability efforts and where those efforts could be improved, to inform the development and implementation of the CEO Plan; b. COAB, in conjunction with PPB, shall consult with community members (not only through PPB Advisory Councils and Roundtables) and hold at least two (2) public hearings, completed within 90 days of the COAB selection, in

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addition to the representative survey described above, to gather public input on PPB’s outreach efforts; the hearings shall be held in locations to ensure that PPB receives input from all parts of the Portland community; c. COAB shall review PPB’s prior community outreach efforts to contribute to the development of a new CEO Plan; d. COAB shall solicit and consider input from the Human Rights Commission’s Community Police Relations Committee (“CPRC”), including its work to implement the 2009 PPB “Plan to Address Racial Profiling”; e. Within 60 days of the anticipated due date for survey results, the COAB and PPB, in consultation with the appropriate City resources knowledgeable about public outreach and survey analysis, shall review and analyze the results of the survey and other public comments discussed above; f. The CEO Plan shall include strategies to ensure greater public outreach and engagement, including opportunities for outreach to a broad cross-section of community members. The Plan shall also identify gaps in available resources to achieve its goals. g. The COAB may also provide information to the PPB on other areas related to community engagement and outreach to contribute to the development of the CEO Plan, including: i. integration of community and problem-oriented policing principles
into PPB’s management, policies and procedures; ii. recruitment, selection, training, promotion, and personnel
evaluations; iii. tactics and deployment of resources; and
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iv. systems of accountability. g. COAB shall submit its recommended CEO Plan to the Chief, in writing,
within 90 days of the COAB’s completion of survey analysis. h. The Chief’s Office, in consultation with the five PPB advisory members of
the COAB shall utilize the COAB’s recommendations in developing and implementing the CEO Plan. The Chief’s Office shall present the final proposed CEO (with implementation timeline) to the COAB for a vote of approval within 240 days of the effective date of this Agreement. 146. Within 120 days of the effective date of the relevant Amendments to this Agreement, the City, in consultation with the PCCEP, will conduct another reliable, comprehensive and representative survey of members of the Portland community regarding their experiences with and perceptions of PPB’s community outreach efforts and accountability efforts and where those efforts could be improved, to inform the work of the PCCEP and the development and implementation of the Community Engagement Plan. 147. PPB shall continue to collect appropriate demographic data for each precinct so that the Precinct Commander, together with the COAB, considering any input from the PCCEP, may develop outreach and policing programs specifically tailored to the residents of the precincts. The data shall also be provided to PCCEP to inform its work. 148. PPB shall continue to require that officers document appropriate demographic data regarding the subjects of police encounters, including the race, age, sex and perceived mental health status of the subject, and provide such information to the CPRC to contribute to their analysis of community concerns regarding discriminatory policingshall provide such information to the PCCEP and make such information publicly available to contribute to the analysis of community concerns regarding discriminatory policing. In consultation with the COAB and CPRC, PPB shall consider

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enhancements to its data collection efforts, and report on its efforts to enhance data collection to the DOJ by no later than December 31, 2013, and quarterly thereafter.
149. The COAB, COCL, PPB, and DOJ will jointly develop metrics to evaluate community engagement and outreach. PCCEP may review these metrics and may suggest additional metrics to DOJ and PPB.
150. Annually, PPB shall issue a publicly available PPB Annual Report, which shall include a summary of its problem-solving and community policing activities. A draft of the Annual Report shall be reviewed by the COAB provided to the PCCEP for review and comment before the report is finalized and released to the public. Once released, PPB shall hold at least one meeting in each precinct area and at a City Council meeting, annually, to present its Annual Report and to educate the community about its efforts in community policing in regard to the use of force, and about PPB’s policies and laws governing pedestrian stops, stops and detentions, and biased-free policing, including a civilian’s responsibilities and freedoms in such encounters.
151. The COAB may make recommendations approved by a majority of its membership regarding implementation of the terms of this Agreement.
152. The COAB, shall meet at least twice per year with the Chief, the Police Commissioner, PPB Precinct Commanders, PPB Neighborhood Response Teams, and a representative of the Office of Neighborhood Involvement Crime Prevention to assess and solicit comment on PPB’s activities in regards to community outreach, engagement, and problem-solving policing. The COAB shall also provide the opportunity for public comment at each of its meetings to keep open lines of communication with the public-at-large.
153. A representative of the Oregon U.S. Attorney’s Office shall be invited to attend all COAB meetings.
151. COAB PCCEP shall meet as needed to accomplish their objectives as set forth in

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this Agreement the PCCEP Plan. All COAB meetings shall be open to the public. In addition, COAB shall attend quarterly meetings with the COCL as provided in Par 163. PCCEP shall hold regular Town Hall meetings which shall be open to the public. To the extent that COAB PCCEP meetings are subject to the Oregon Public Meetings Law, or similar regulatory or statutory requirements, the City shall be responsible to give advice necessary to the COAB PCCEP to ensure compliance with those laws and agrees to represent COAB PCCEP in any challenges regarding compliance with those laws.
152. The City shall provide COAB PCCEP members with appropriate training necessary to comply with requirements of City and State law.
X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT 153. PPB shall implement immediately all provisions of this Agreement which involve the continuation of current policies, procedures, and practices specific to force, training, communitybased mental health services, crisis intervention, employee information system, officer accountability, and community engagement. Except where otherwise specifically indicated, PPB shall implement all other provisions of this Agreement no later than within 180 days of the Effective Date. 154. With regard to any provision that provides for DOJ’s review and approval, including review of all policies that must be revised, approval will be granted in a timely fashion provided that the PPB’s action reasonably satisfies the requirements and standards set forth in the relevant provision(s). 155. All PPB audits and reports related to the implementation of this Agreement shall be made publicly available via website and at PPB, IPR, City Hall, and other public locations. Audits and reports shall be posted on PPB’s website. 156. PPB shall collect and maintain all data and records necessary to facilitate and ensure

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transparency and wide public access to information related to PPB decision making and activities, and compliance with this Agreement, in accordance with the Oregon Public Records Law. A. Compliance Officer/Community Liaison
157. Within 60 days from the Effective Date, the City shall publicly identify three potential candidates with expertise in police practices, community engagement, and crisis intervention methods, to serve as a Compliance Officer and Community Liaison (“COCL”). Following a 30-day public comment period, the City Council shall select a COCL, who shall be responsible for synthesizing data related to PPB’s use of force, reporting to the City Council, DOJ, and the public and gathering input from the public related to PPB’s compliance with this Agreement. The COCL shall not be attached to any one City office, shall be wholly independent of PPB, and shall be responsive to the entire City Council, the public, and DOJ. The City shall provide administrative support so that the COCL can perform the duties and responsibilities identified in this Agreement.
158. In order to collect data and report on PPB’s implementation of each substantive provision of this Agreement, the COCL shall conduct the reviews specified in paragraph 173 of this Agreement and such additional reviews regarding the implementation of this Agreement as the COCL, the City, or DOJ deems appropriate. Based on the COCL’s reviews and community input, the COCL shall make recommendations to the City regarding measures necessary to ensure full and timely implementation of this Agreement.
159. The COCL shall prepare quarterly, written, public reports detailing PPB’s compliance with, and implementation of, this Agreement. The reports shall specify: (a) the methodology and monitoring activities employed; (b) the COCL’s assessment of compliance for each paragraph; and (c) the COCL’s recommendations regarding necessary steps to achieve compliance, as warranted. The COCL shall substantiate his or her compliance assessments and

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recommendations. The COCL’s reports shall be written with due regard for the privacy interests of individual officers and the subjects involved in the use of force interactions, and the interest of PPB in protecting against disclosure of non-public information.
160. The COCL shall provide a copy of all reports to the Parties and the COAB in draft form and allow the Parties and the COAB 30 days to informally comment on the reports. The COCL shall also hold open town hall meetings on a quarterly basis where he/she will present his/her draft compliance report to the COAB public, and receive public comment on his/her assessments of compliance and recommendations. The COAB will be responsible for drafting comments to the COCL’s report, and shall incorporate any comments or concerns from the publicat-large related to PPB’s compliance with the Agreement into its comments. The public shall have the opportunity to raise comments or concerns at the open town hall meeting or via online and/or electronic mail submissions. The COCL and COAB and the City, in consultation with the PCCEP, shall jointly ensure that the time and location of these quarterly town hall meetings are well publicized with sufficient advance notice and that significant efforts are made to procure attendance of a community body broadly representative of the many and diverse communities in Portland, including persons with mental illness, mental health providers, faith communities, minority, ethnic, and other community organizations, and student or youth organizations. These quarterly meetings shall facilitate the sharing of information on the Agreement and its implementation with the broad community body and permit the COCL and the COAB to receive comments and concerns.
161. The COCL shall consider the Parties’ responses and COAB’s responses to its draft report and make appropriate changes, if any, before issuing a final version of the report. The COCL shall issue the final report to the Parties and make all final reports publicly available through posting on the City’s website. The Parties’ responses and COAB’s responses to the COCL’s draft report shall also be published on the City’s website. The Parties may submit any COCL reports to the

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Court if questions arise concerning compliance with this Agreement. The Parties agree that COCL reports may be used to evidence compliance or non-compliance with this Agreement, subject to the weight afforded to such reports by the Court. B. PPB Compliance Coordinator
162. PPB will hire or retain an employee familiar with the operations of PPB for the duration of this Agreement, to serve as a PPB Compliance Coordinator. The Compliance Coordinator will serve as a liaison between PPB and both the COCL and DOJ and will assist with PPB’s compliance with this Agreement. At a minimum, the Compliance Coordinator will:
a. Coordinate PPB’s compliance and implementation activities; b. Facilitate the provision of data, documents, materials, and access to PPB
personnel to the COCL and DOJ, as needed; c. Ensure that all documents and records are maintained as provided in this
Agreement; d. Assist in assigning compliance tasks to PPB personnel, as directed by the
Chief of Police or the Chief’s designee; and e. Take primary responsibility for collecting the information the COCL requires
to carry out his/her assigned duties. C. Access to People and Documents
163. The COCL shall have full and direct access to all PPB and City staff, employees, facilities, and documents that the COCL reasonably deems necessary to carry out his/her duties. If a document requested by the COCL is a privileged attorney- client communication, the COCL shall not disclose the document in a manner that destroys that privilege without the approval of the City Attorney. The COCL shall cooperate with PPB and the City to access people, facilities, and documents in a reasonable manner that minimizes, to the extent possible, interference with daily

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operations. In order to report on PPB’s implementation of this Agreement, the COCL shall regularly conduct reviews to ensure that PPB implements and continues to implement all measures required by this Agreement. The COCL may conduct on-site reviews without prior notice to PPB or the City.
164. For the purpose of monitoring this Agreement, DOJ and its consultative experts and agents shall have full and direct access to all PPB and City staff, employees, facilities, and documents, that DOJ reasonably deems necessary to carry out the enforcement and monitoring provisions of this Agreement to the extent permitted by law. DOJ and its consultative experts and agents shall cooperate with PPB and the City to access involved personnel, facilities, and documents in a reasonable manner that minimizes interference with daily operations; however, DOJ may conduct on-site reviews without prior notice to PPB or the City. DOJ shall provide PPB or the City with reasonable notice of a request for copies of documents. Upon such request, PPB or the City shall provide DOJ with copies (electronic, where readily available) of any documents that DOJ is entitled to access under this Agreement, except any documents protected by the attorney-client privilege. Should PPB decline to provide DOJ with access to a document based on attorney-client privilege, PPB promptly shall provide DOJ with a log describing the document, including its author, recipients, date of production, and general topic.
165. All non-public information provided to the COCL or DOJ by PPB or the City shall be maintained in a confidential manner. Nothing in this Agreement requires the City to disclose documents protected from disclosure by the Oregon Public Records Law to third parties. D. Review of Policies and Investigations
166. Within 180 days of the Effective Date, PPB shall revise and/or develop its policies, procedures, protocols, training curricula, and practices to ensure that they are consistent with, incorporate, address, and implement all provisions of this Agreement specific to force, training, community-based mental health services, crisis intervention, employee information system, officer

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accountability, and community engagement. PPB shall revise and/or develop as necessary other written documents such as handbooks, manuals, and forms, to effectuate the provisions of this Agreement. PPB shall send new or revised policies, procedures, protocols, and training curricula regarding use of force, interactions with persons in mental health crisis and systems of accountability to DOJ as they are promulgated, with a copy to the COCL. DOJ and the COCL will provide comments within 45 days and will not unreasonably withhold recommendations about policies, procedures, protocols, and training curricula. The COCL shall seek the timely input of the relevant members of the Training Division and patrol officers, as well members of the community. If the City disagrees with DOJ’s comments, the City shall, within 14 days of being informed of the DOJ’s comments, inform the Parties in writing of the disagreement. Within 14 days thereafter, the Parties shall meet and confer on the disagreement at a mutually agreeable time. Upon approval by the Parties, policies, procedures, training curricula, and manuals shall be implemented within 30 days of agreement or the Court’s decision. PPB shall provide initial and in-service training to all officers and supervisors with respect to newly implemented or revised policies and procedures. PPB shall document employee review of and training in new or revised policies and procedures.
167. The Chief shall post on PPB’s website final drafts of all new or revised policies that are proposed specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement, to allow the public an opportunity for notice and comment, prior to finalizing such policies.
168. The Chief’s Office shall coordinate a review of each policy or procedure required by this Agreement 180 days after such policy or procedure is implemented, and annually thereafter (on a regularly published schedule), to ensure that such policy or procedure provides effective direction to PPB personnel and remains consistent with the purpose and requirements of this Agreement.
169. PPB shall apply policies uniformly and hold officers accountable for complying with

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PPB policy and procedure. 170. In addition to compliance reviews, the COCL shall lead semi-annual qualitative and
quantitative outcome assessments to measure whether the City and PPB’s implementation of this Agreement has created: (1) capable systems and resources for responding to persons in mental health crisis; (2) competent accountability and oversight systems; (3) effective training for police officers that increases the knowledge, skills and abilities necessary for effective and successful delivery of service to persons in mental health crisis; (4) proper management of the use of force to meet constitutional standards; and (5) robust systems of community engagement. These outcome assessments shall be informed by the following:
a. Use of Force Data: i. the number of police interactions where force was used on individuals with actual or perceived mental illness, including the type of force used; the reason for the interaction, i.e., suspected criminal conduct or a well- being check; the threat to public safety, including whether the person was armed and if so, with what; a description of the type of resistance offered, if any; and a description of any attempts at strategic disengagement; ii. the rate of force used per arrest by PPB; force implement used; geographic area (i.e., street address, neighborhood, or police precinct or district); type of arrest; and demographic category; iii. the rate of force complaints that are sustained, overall and by force type; source of complaint (internal or external); type of arrest; type of force complained of; demographic category; iv. uses of force that were found to violate policy overall and by force type; type of arrest; demographic category; force implement used; and number

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of officers involved; v. the number and rate of use of force administrative investigations/reviews
in which each finding is supported by a preponderance of the evidence; vi. the number of officers who frequently or repeatedly use force, or have
more than one instance of force found to violate policy; vii. the rate at which ECW usage decreases or increases compared to the use of
force overall and by weapon; and viii. the rate at which officer and subject injuries decrease or increase overall
and by severity of injury. b. Mental health interaction data on:
i. MCPT dispositions; ii. the flow of people in mental health crisis through PPB, the County jail,
emergency receiving facilities, and community agencies; iii. officer and agency staff satisfaction with the transfer process; iv. the rate of repeat calls for service involving individuals in mental health
crisis; v. the use of the mental health commitment law; and vi. the availability of appropriate treatment options; c. Training data, including: i. officer evaluation of adequacy of training; and ii. the Training Division’s assessment of incidents involving officer or civilian
injury. d. Performance data, including:

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i. uses of force found to be unreasonable, complaints sustained and not sustained, and other performance related indicators for supervisors/commanders promoted pursuant to the requirements of this Agreement, and for the units these supervisors/commanders command; and

ii. initial identification of officer violations and performance problems by

supervisors, and effectiveness of supervisory response.

e. Accountability data, including:

i. the number of complaints (broken out by type of complaint), with a qualitative assessment of whether any increase or decrease appears related to access to the complaint process;

ii. rate of sustained, not sustained, exonerated complaints;

iii. the number and rate of complaints in which the finding for each allegation is supported by a preponderance of the evidence;

iv. the number of officers who are subjects of repeated complaints, or have repeated instances of sustained complaints; and

v. the number, nature, and settlement amount of civil suits against PPB officers regardless of whether the City is a defendant in the litigation.
171. In conducting these outcome assessments, the COCL may use any relevant data collected and maintained by PPB, provided that it has determined, and the Parties agree, that this data is reasonably reliable and complete. Additionally, the COCL shall solicit input from community groups or initiatives that have relevant experience conducting statistical analyses. The COCL will contribute to and review the Annual Community Survey.
172. Two years after the Effective Date, DOJ shall conduct a comprehensive assessment

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to determine whether and to what extent the outcomes intended by the Agreement have been achieved. DOJ will further examine whether any modifications to the Agreement are necessary in light of changed circumstances or unanticipated impact (or lack of impact) of the Agreement’s requirements. This assessment also shall address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating full and effective compliance. Based upon this comprehensive assessment, DOJ may recommend modifications to the Agreement that are necessary to achieve and sustain intended outcomes. Where the City agrees with DOJ’s recommendations, the Parties shall stipulate to modify the Agreement accordingly. Nothing in this assessment shall empower DOJ to unilaterally modify the terms of this Agreement. E. City Reports and Records
173. Beginning with the COCL’s first quarterly report, as set forth in paragraph 166 of this Agreement, PPB shall prepare a status report no later than 45 days before the COCL’s quarterly report is due. The PPB Compliance Coordinator shall lead the effort in preparing this status report and shall provide copies to the COCL, DOJ, and the public. PPB’s report shall delineate the steps taken by PPB during the reporting period to comply with each provision of this Agreement.
174. PPB shall maintain all records, as applicable, necessary to document their compliance with the terms of this Agreement and all documents expressly required by this Agreement. F. Enforcement
175. The Parties agree jointly to file this Agreement with the United States District Court for the District of Oregon, in a matter to be captioned United States v. City of Portland, Civil Action No. --CV--. The joint motion shall request that the Court enter the Agreement pursuant to Federal Rule of Civil Procedure 41(a)(2), and conditionally dismiss the complaint in this action with prejudice, while retaining jurisdiction to enforce the Agreement. If the Court does not retain

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jurisdiction to enforce the Agreement, the Agreement shall be void. a. The Parties anticipate that the City will have substantially complied with all provisions of the Agreement by October 12, 2017. Substantial compliance is achieved if any violations of the Agreement are minor or occasional and are not systemic. b. The Court shall retain jurisdiction of this action for all purposes until the City has substantially complied with all provisions of this Agreement and maintain substantial compliance with all provisions for one year. c. The Parties may agree to jointly ask the Court to terminate the Agreement before the end of the five year term, provided the City has substantially complied with all provisions of the Agreement and maintained substantial compliance with all provisions for one year. If the case has not yet been dismissed, the Parties agree to ask the Court for a non-evidentiary hearing on the status of compliance on or near October 12, 2017. If the Parties agree that there is non-compliance, or if there is a dispute about compliance, the Parties will so inform the Court, and the Court may set additional hearing dates as appropriate. The Parties may agree jointly at any time to allow for additional time to resolve compliance issues.
176. The United States acknowledges the good faith of PPB and the City in trying to address the remedial measures that are needed to promote police integrity and ensure constitutional policing in the City. The United States, however, reserves its right to seek enforcement of the provisions of this Agreement if it determines that PPB or the City have failed to fully comply with any provision of this Agreement.
177. The United States understands that many portions of this Agreement will take time

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to implement and that implementation may require changes to, among other things, collective

bargaining agreements, the city code, and current city policies and will likely require additional

revenue resources that have not yet been identified at the time this Agreement is executed.

178. If the United States reasonably believes the City has failed to implement the terms of

the Agreement, it shall promptly notify the City in writing and identify with specificity the portion or

portions of the Agreement about which it has concerns. Similarly, if the City believes that DOJ has

misinterpreted a provision of this Agreement it may promptly notify DOJ of its concerns, noting the

specific portions of the Agreement that it believes has been misinterpreted.

179. Notices provided by the United States or by the City shall be in writing and provided

by mail to the following persons:

Chief of Police 1111 SW Second Portland, Oregon 97204

City Attorney 1221 SW 4th Avenue, Suite #430 Portland, Oregon 97204

Section Chief Special Litigation Section 950 Pennsylvania Ave., N.W. 20530

U.S. Attorney District of Oregon 1000 S.W. Third Ave., Suite 600 Washington, D.C. Portland, OR 97204

180. Following receipt by mail of any written Notice, the City or DOJ shall respond in

writing within 30 days to the concerns raised by the other Party. Depending on the nature and

number of the concerns the City or DOJ may request additional time to respond, and such a request

shall not be unreasonably denied. The Notice and the Party’s Response thereto shall be considered

to be in the nature of settlement discussions between the Parties and subject to Federal Rule of

Procedure 408.

181. If the Response fails to resolve the other Party’s concerns, the Parties agree to meet

as soon thereafter as is mutually convenient to discuss the City’s compliance with the portion(s) of

the Agreement identified in the Notice or the interpretation of the Agreement by DOJ. Persons

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attending the meeting shall have authority to resolve the concerns, unless resolution of the concern requires adoption of an ordinance or resolution by City Council or by the Assistant Attorney General in Charge of the DOJ Civil Rights Division.
182. If a meeting between the Parties fails to resolve the concerns, the Parties agree to participate in mediation conducted by a neutral third party mutually agreeable to the Parties. If the Parties cannot agree upon the selection of a mediator, the Parties shall submit three names of potential mediators to each other. Each Party may then strike two of the three names provided by the other Party. The remaining two names shall be given to the Chief Judge of the U.S. District Court for the District of Oregon and the Chief Judge shall appoint the mediator from one of the names provided.
183. If mediation fails to resolve the concerns, the United States or the City may file a Motion in the Federal District Court for the District of Oregon, located in Portland, Oregon, to enforce compliance with the terms of this Agreement or to seek a Declaration of the meaning of this agreement. The Motion or request for Declaration shall only allege concerns raised by the Parties which were the subject of mediation. The Parties shall then meet with the court to schedule a date on which the Motion or Declaration shall be heard or will otherwise comply with the court’s preferred procedure. The Parties agree the Judge hearing the Motion shall determine whether or not the Agreement has been breached and may interpret the meaning of the Agreement and has the power to issue an appropriate remedy, if any. If, for any reason, the Judge finds the City is not in compliance with the Agreement, but that noncompliance was beyond the reasonable control of the City, the City shall not be in breach of this Agreement. However, in the event of noncompliance beyond the reasonable control of the City, the Parties agree that the Court may exercise its equitable powers to devise an appropriate remedy or modification of this Agreement to accomplish the same result as that intended by the portion of the Agreement with which noncompliance was found,

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provided the Parties cannot reach agreement on the remedy or modification. 184. Nothing prohibits the Parties from engaging in any informal or formal discussions
regarding this Agreement or the City’s compliance with this Agreement. The Parties may jointly stipulate to make changes, modifications, and amendments to this Agreement, which shall be effective, absent further action from the Court, 45 days after a joint motion has been filed with the Court. Any modification of this Agreement by the City of Portland must be approved by the City Council of the City by written ordinance.
185. The Parties agree to defend the provisions of this Agreement. The Parties shall notify each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any City, county, or state court, removal to a federal court shall be sought by the Parties.
186. The PPB and the City agree to promptly notify DOJ if any term of this Agreement becomes subject to collective bargaining. The City agrees to keep DOJ apprised of the status of the resulting negotiations.
187. All PPB officers and persons related to the implementation of this Agreement shall sign a statement indicating that they have read and understand this Agreement within 90 days of the effective date of this Agreement. Such statement shall be retained by PPB. PPB shall require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors.

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RESPECTFULLY SUBMITTED this ___ day of April

2018.

FOR THE UNITED STATES:
BILLY J. WILLIAMS United States Attorney District of Oregon
RENATA A. GOWIE Chief, Civil Division
/s/ Jared D. Hager JARED D. HAGER Assistant U.S. Attorney

JOHN M. GORE Acting Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief, Special Litigation Section
/s/ Laura L. Cowall LAURA L. COWALL Special Counsel
/s/ R. Jonas Geissler R. JONAS GEISSLER Trial Attorney
/s/ Brian D. Buehler BRIAN D. BUEHLER Trial Attorney
/s/ Kerry K. Dean KERRY K. DEAN Trial Attorney

FOR THE CITY OF PORTLAND:
/s/ Tracy Reeve TRACY REEVE City Attorney

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City of Portland Plan for Portland Committee on Community-Engaged Policing (PCCEP)
I. MISSION To work with the Mayor/Police Commissioner, Portland Police Bureau, and Portland’s diverse constituencies to solicit and exchange information between the community and Portland Police Bureau (PPB) to achieve the desired outcomes of equitable policing which exceeds constitutional requirements, and meaningful community engagement with and trust in PPB.

II. GOALS
PCCEP members will independently assess the Settlement Agreement using the tools outlined in this Plan. PCCEP will work to facilitate positive police/community relationships and promote public safety by assessing PPB’s current community engagement processes, and developing recommendations and strategies for systems to increase public outreach and engagement with a broad cross-section of the community, to build confidence and improve outcomes. Additionally, PCCEP members will review and make recommendations on PPB policies touching the DOJ Settlement Agreement and/or key areas of concern, including constitutional policing, use of force, interactions with people experiencing mental illnesses, complaint investigations, and racial justice.
In order for PPB to effectively build trust with Portland’s diverse communities, the communities’ concerns must be heard and meaningful action by PPB must be taken. To facilitate this outcome, PCCEP members will also make recommendations in the key areas of concern for Portland’s diverse communities based on the communities’ articulated experiences and grievances.
PCCEP’s mission and goals will guide the following:
1. Scope of work 2. Membership 3. City’s responsibilities 4. Available tools and resources 5. Members’ responsibilities 6. Deliverable products

SCOPE OF WORK
PCCEP will engage with Portland’s diverse communities in key areas of concern, including constitutional policing, use of force, interactions with people experiencing mental illnesses, complaint investigations, and racial justice. PCCEP will contribute to the development of the PPB Community Engagement Plan, as directed by the Settlement Agreement between the City of Portland and the United States.

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Specifically, PCCEP will be authorized to:
• Develop recommendations for PPB systems to engage meaningfully, both short-term and long-term, Portland’s diverse communities and improve community relations. Gather and synthesize information from Portland’s diverse communities, and make recommendations based on that information in key areas of concern to communicate to the Mayor, PPB,the Office of Equity and Human Rights, the DOJ, and the public at large.
• Review and make recommendations on PPB directives touching the DOJ Settlement Agreement and/or key areas of concern. Provide information to the community on these directives, and solicit feedback and recommendations from the community to share with thePPB.
• With the Mayor’s written approval, and after consultation with the other City Commissioners, PCCEP is authorized to identify for off-schedule review directives not related to the DOJ Settlement Agreement or key areas of concern.1 PCCEP must provide a written explanation for the request, which will be considered by the Mayor and City Commissioners.
• Provide information to and solicit feedback from Portland’s diverse communities through focused and targeted round tables and town halls, to be held at least quarterly and be open to the public. PPB presence is required at quarterly town halls.
• Continue to collaborate with the City on surveys regarding Portland residents’ experiences with and perception of PPB’s community outreach and accountability efforts. PCCEP will consider survey results in developing recommended strategies.
• Provide ongoing feedback to PPB regarding community engagement initiatives already in progress and those added/needed in thefuture.
• During the effective period of the Settlement Agreement, appear before the Court at the annual status conference to describe to the Court its assessment of the City’s progress toward achieving the goals of the Settlement Agreement.

III. MEMBERSHIP and REPORTING
PCCEP will be comprised of a diverse group of between nine and eleven mayoral- appointed volunteers, who are committed to improving systems-based police/community relationships and ensuring and exceeding constitutional policing standards. The PCCEP will report directly to the Mayor (Police Commissioner) and consult, separately and at least quarterly with the

1 PPB directives are generally scheduled for Bureau review every two years. The City recognizes that the community has an interest in a number of directives, and particularly those that are relevant to current events (e.g., Directive 635.10. Crowd Management, with respect to demonstrations; Directive 810.10, Arrest of Foreign Nationals with respect to Portland’s status as a Sanctuary City). This authority is intended to allow PCCEP to be responsive to community concerns when there is a compelling interest to review and revise a Bureau practice.

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Director of the Office of Equity and Human Rights.

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IV. SELECTION
The Mayor, in consultation with the other Council offices, shall work with the community selection panel described below to develop selection criteria and public outreach strategies for the PCCEP selection process. This process may begin before the Fairness Hearing and approval of the revised Settlement Agreement by the Court. Following the development of the selection criteria, a written, downloadable application will be posted and available on the City’s website. Posted alongside the application will be the deadline for submission, selection criteria, selection process and a description of PCCEP member responsibilities. The City will engage the community in a variety of ways to communicate the application and selection process, criteria and timelines. Extra effort will be made to invite people who have experienced mental illnesses to apply.
The selection process will adhere to the following framework: (1) Application submission; (2) Initial screening of applicants by mayoral staff and a representative from any Council office who wishes to participate; (3) Review and further screening by panel consisting of five diverse community members (each chosen by the Mayor and other Commissioners); (4) Candidate interviews with Mayor after soliciting feedback about final candidates from each Council office; (5) Mayoral appointment and (6) Council confirmation.
The Mayor will consider the selection criteria and views of the community in appointing volunteers. City employees may not be appointed to sit on the PCCEP.

V. TERM
Volunteers will serve two year maximum terms. There will be no term limits. During the first year of PCCEP’s life, volunteers will be appointed on a staggered basis where the majority of the board will serve two-year terms, and the remainder will serve one-year terms. Applicants will be able to indicate on their application form whether they wish to serve one or two-year terms. Any volunteers who serve one-year terms will have the option of re-applying for the opportunity to serve a full term.

VI. REMOVAL
The Mayor, after consultation with the Council, the PCCEP Program Manager and PCCEP chair (absent a conflict of interest) will have sole discretion to determine when PCCEP members are no longer fit to serve on the committee due to misconduct. If a member is removed or resigns, the selection process identified above will be used to recruit, appoint and confirm the new member.

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VII. CITY’S RESPONSIBILITIES2
To establish the PCCEP and facilitate its work, the City will seek the services of an organizational development consultant to structure board orientation for PCCEP members. This orientation shall include training on the United States v. City of Portland Settlement Agreement. Specifically, as part of this training, the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC) and mental health advocates will be invited to provide information on the history of the Settlement Agreement. After PCCEP’s board orientation, the City shall continue to provide resources for member training as needed so that members continue to fulfill their obligations.
The City shall make appropriate information available regarding PPB’s current community engagement initiatives, directives, and directive review and implementation process.
The PPB, in particular, and in accordance with its directive review schedule, shall meet with PCCEP during a universal review period to brief members on directives related to the DOJ Settlement Agreement and/or key areas of concern, provide information as needed/requested, and solicit PCCEP member feedback. The PPB shall make the adjustments necessary to its current directive review system in order to integrate PCCEP into the PPB’s work.
The City shall provide thorough and timely responses to PCCEP recommendations and requests for information, and shall endeavor to do so within 60 days.
The City shall provide staffing for the PCCEP including a program manager and administrative support. The City will also provide staff support and funding for community organizing/outreach.
The City shall provide meeting locations, and work with PCCEP to identify neutral locations that are accessible to and appropriate for the community for public meetings.
To ensure constitutional policing, to closely interact with the community to resolve neighborhood problems, and to increase community confidence, PPB shall work with City resources knowledgeable about public outreach processes, the PCCEP and the PPB’s Equity & Diversity Manager to develop a Community Engagement Plan, which shall be adopted by Council following a public hearing.
The Mayor’s Office shall publish on the City website an annual report, commencing from the

2 With the amendments to Section IX of the Settlement Agreement and the development of the PCCEP, the City understands there is concern about the role of the Portland community in monitoring the Settlement Agreement, and updating the wider community on the status of terms of the Settlement Agreement. The City will provide updates to the community on the status of the City’s compliance with its obligations under the Settlement Agreement in the following ways: 1) at the annual status conference before the federal district court; 2) through quarterly community meetings with the COCL either separate from or jointly with the PCCEP, and staffed by the City; 3) through reports on the COCL website; and 4) through other means as appropriate. The United States Department of Justice and the COCL will continue to have responsibility for monitoring the City’s compliance with its obligations under the Settlement Agreement during the effective period of the Agreement. After the City is found to be in compliance with the Settlement Agreement and the Court, DOJ and COCL are no longer involved, PCCEP will provide recommendations to the Mayor/Police Commissioner regarding continued assessments of the City’s progress, generally, and community engagement.

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date PCCEP begins meeting through the duration of its existence, that will include updates on progress made by the City in key areas of concern and community engagement recommendations.
The Mayor or the Mayor’s delegate, and the PPB Chief or the Chief’s delegate, shall endeavor to attend all public meetings of PCCEP, unless PCCEP requests otherwise. Other Commissioners or their delegates are encouraged to attend, unless PCCEP requests otherwise. The purpose of such attendance is to listen to understand, provide information either at the meeting or as follow-up, and learn from PCCEP members and public testimony.

VIII. MEMBERS’ RESPONSIBILITIES
PCCEP members must engage all participants in a respectful and collegial manner, and be responsible for the following:
• Prior to members' first PCCEP meeting:
o Learn about the history of the United States v. City of Portland Settlement Agreement. o Attend PPB community academy. o Participate in a ride-along with PPB (1 per PCCEP member). o Review lessons learned from the COAB. o Participate in subject matter and board trainings. o Learn about:
 PPB organizational structure;  Policy development and implementation process;  PPB Racial Equity Plan;  PPB Training Division Plan;  PPB’s Office of Community Engagement and current community engagement
initiatives, generally; and  PPB advisory bodies. • Gather input from Portlanders regarding experiences with and perceptions of PPB’s community outreach. Such input will be solicited through: o Round tables o Quarterly town halls o General consultation with Office of Neighborhood Involvement (ONI) and/or District Coalitions, Coalition of Communities of Color, and ONI’s Diverse Civic Leadership partners o AMAC, The Portland Commission on Disabilities, the Human Rights Commission, and the New Portlander Policy Commission • Evaluate national best practices regarding police and communityengagement leading to bias-free policing and community trust.

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• Analyze prior community surveys and consult with the City to conduct additional community surveys.
• Receive public comment from Portlanders at large. • Review PPB directives and make recommendations to PPB based on public feedback in key
areas of concern. • Provide ongoing feedback to PPB’s Office of Community Engagement on its community
engagement practices and initiatives, and provide feedback on PPB’s Community Engagement Plan.
• Hold twice monthly meetings. PCCEP meetings may be open to the public, with advance notice, if and when PCCEP determines a public meeting will further its mission. At least one of the monthly meetings must be open to the public, with public comment to PCCEP members permitted.
• PCCEP shall coordinate with the COCL to host open town hall meetings (which may coincide with PCCEP’s quarterly town hall meetings) at which theCOCL provides quarterly reports and the COCL and PCCEP receives public comment on compliance assessments and recommendations to facilitate Portlanders’ ability to review compliance and make recommendations.3
• Agendas and minutes from all PCCEP meetings will be published on theCity website within 30 days after the meeting date.

IX. DELIVERABLE PRODUCT
PCCEP shall be responsible for producing the following:
• Summary reports issued (to the Mayor, PPB, DOJ, and the public at large) contemporaneously with quarterly town halls, providing an overview of community concerns around and any recommendations regarding useof force, interactions with people experiencing mental illness, complaint investigations, and racial justice. Strategies and recommendations developed to ensure greater public outreach and engagement, including opportunities for outreach to a broad cross-section of community members, to inform PPB’s Community Engagement Plan, utilizing the following procedure:
1. PCCEP shall consult with community members and hold at least two (2) public hearings, to be completed within 180 days of PCCEP members being seated (PCCEP’s town halls may be utilized for this purpose). To gather public input on PPB’s outreach efforts and progress towards eliminating unconstitutional disparate treatment, the hearings shall be held in locations to ensure that PPB receives input from all parts of the Portland community. PCCEP shall review PPB’s prior community outreach efforts to contribute strategies to the development of a new Community Engagement Plan.
2. PCCEP shall meet at least quarterly with the Director of the City’s Office of Equity and

3 Should COCL decline to combine its quarterly town halls with PCCEP’s town halls, the COCL may hold separate town halls for community feedback, with staff support from the City.

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Human Rights and PPB’s Manager of Equity & Diversity, including a review of PPB’s current Racial Equity Plan, and evaluate PPB’s ongoing efforts to implement that plan.
3. PCCEP shall suggest for inclusion in the Community Engagement Plan strategies to ensure greater public outreach and engagement, including opportunities for outreach to a broad cross-section of community members. The parties recognize that meaningful public engagement involves the ability of community members to affect policies, practices, and PPB culture, thereby improving outcomes and eliminating unconstitutional actions.
4. PCCEP may also provide information to the PPB on other areas related to meaningful community engagement and outreach to contribute to the development of the Community Engagement Plan. The Plan will specify how to integrate community values and problem-oriented policing principles into PPB’s management, policies and procedures.
5. PCCEP will spend the first year gathering information from the public and compiling recommendations for PPB’s Community Engagement Plan. Recommendations shall be submitted to PPB within one year of PCCEP members being seated.
6. The Chief’s Office shall consult with the PCCEP and shall consider and utilize to the extent practicable PCCEP’s recommendations in developing and implementing the Community Engagement Plan. The Chief’s Office shall present the final proposed Community Engagement Plan (with implementation timeline) to the PCCEP for its final review and comment within 45 days of receiving PCCEP’s recommendations. The recommended Community Engagement Plan shall be considered by the City Council in a public hearing, leading the Council’s adoption of the Plan after review and amendments if indicated.
7. The PCCEP shall meet at least twice per year with the Chief, the Police Commissioner, PPB Precinct Commanders, PPB Neighborhood Response Teams, and a representative of the Office of Neighborhood Involvement Crime Prevention to assess and solicit comment on PPB’s activities in regards to community outreach, engagement, and problem-solving policing. The PCCEP shall also provide the opportunity for public comment at each of its town hall and roundtable meetings to keep open lines of communication with the public at- large. The PCCEP may also invite testimony from other City bodies, including but not limited to PCoD, BHUAC, TAC, HRC, CRC and the citizen members of the PRB.

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TRACY REEVE, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov MARK AMBERG, OSB# 922133 Chief Deputy City Attorney Email: mark.amberg@portlandoregon.gov DENIS M. VANNIER, OSB#044406 Deputy City Attorney Email: denis.vannier@portlandoregon.gov Office of City Attorney 1221 SW 4th Avenue, Suite 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089
Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, PLAINTIFF,
v. CITY OF PORTLAND,
DEFENDANT.

Case No. 3:12-cv-02265-SI
CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND COMMITTEE ON COMMUNITYENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS

I. INTRODUCTION
Despite the very dedicated service of the members and chair of the original Community
Oversight Advisory Board (COAB), the City has not to this point been able to achieve
substantial compliance with Section IX of the Settlement Agreement, relating to Community
Engagement. With the benefit of hindsight, the City acknowledges that the desire to get the
COAB up and running quickly resulted in seating the body without laying sufficient ground
work, and without providing sufficient training and support. These were major contributors to
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 PHONE: (503) 823-4047 FAX: (503) 823-3089

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the fact that the body was not ultimately as successful as all parties and the community had hoped. The City has taken to heart the lessons learned from the COAB and the recommendations of its members, and has approached the formation of the Portland Committee on Community-Engaged Policing (PCCEP) very differently. The City is pleased to report that, with the support of the community, the parties, the amicus and the facilitators, and as the result of a robust process, the PCCEP has now been successfully established, and 13 outstanding members have been appointed and confirmed. The City has taken the necessary steps to be on the path to substantial compliance with the community engagement and oversight requirements of the Agreement (as amended and conditionally approved by the Court).
The Court should now grant final approval to those amendments. The newly seated PCCEP deserves an established and approved framework that sets forth both its authority and its responsibilities as it undertakes its challenging and important work. The PCCEP and the parties also need the clarity of knowing that the terms they must meet to achieve compliance are settled, and that the goal posts will not be moving.
II. RELEVANT PROCEDURAL HISTORY Section IX of the original Settlement Agreement provided that the COAB would be a community board of 15 voting members (and 5 advisory PPB members) "from a reasonably broad spectrum of the community" which would "leverage the ideas, talent, experience, and expertise of the community." The COAB was authorized to: "(a) independently assess the implementation of the Agreement; (b) make recommendations to the Parties and the COCL on additional actions; (c) advise the Chief and Police Commissioner on strategies to improve community relations; (d) provide the community with information on the Agreement and its implementation; (e) contribute to the development and implementation of a PPB Community Engagement and Outreach Plan; and (f) receive public comments and concerns.” ECF 4-1, ¶¶ 141-142.
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The COAB was to report to and be chaired by the COCL. All of its meetings were to be open to the public. It was to consult with community members; hold public hearings; conduct surveys; consider input from the Human Rights Commission on its prior work to implement the PPB 2009 Plan to Address Racial Profiling; and contribute to the development of a PPB Community Engagement Plan, which would include strategies for outreach to a broad cross section of the community. The COAB would then be required to present its recommended CEO Plan in writing to the Chief within 90 days of its completion of survey analysis. The COAB was also authorized to provide information to PPB on other areas related to community engagement and outreach to contribute to the development of the CEO Plan including: i) integration of community and problem-oriented policing principles into PPB's management, policies and procedures; ii) recruitment, selection, training, promotion, and personnel evaluations; iii) tactics and deployment of resources; and iv) systems of accountability. It was also authorized to "make recommendations approved by a majority of its membership regarding the implementation of the terms of the Agreement." Id., ¶¶ 144, 146, 151.
For a variety of reasons, including tight deadlines and a lack of experience with the new and unique structure of the COAB (which, unlike other City boards, did not report directly to the City but rather to the COCL), it is clear with the benefit of hindsight that the City did not provide a sufficiently informative vetting process and did not provide sufficient training to the COAB members prior to them being seated or beginning their work. ECF 169-4, p. 7.
In addition to these challenges, it is also clear that the broad charge to the COAB; the disparate views of its members as to what the most important focus of work should be; the lack of trust experienced by many community members with PPB resulting from their own perceptions and experiences; and the lack of a cohesive and agreed-upon framework for its work created very significant (albeit unintended) obstacles to the COAB's success. Id.
As a result, by mid-2016, many COAB members (including two COAB chairs) had resigned leading to difficulties obtaining and sustaining a quorum. Online communities existed Page 3 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
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with the sole purpose of "disrupting and disbanding COAB." It was unclear how and whether to responsibly replace members given the difficulties. Public unrest and criminal behavior became regular features of meetings, resulting in arrests and many participants (board members, members of the public and City staff) expressing safety concerns.
In addition, amidst mounting tension between the COCL and COAB for various reasons, the COAB requested to be separated from the COCL and the COCL requested to be relieved of its responsibility to chair the COAB.
As a result of the above-described circumstances, several COAB members called for a temporary halt to COAB activity to cope with the increasing difficulties that frustrated the ability to hold functional meetings.
The parties therefore agreed to a COAB hiatus and began a lengthy process of working toward changes to the community engagement structure to achieve a more successful public engagement body. That process eventually encompassed many, many discussions with the community and between the parties, the enhanced amicus AMAC, several Ninth Circuit mediation sessions and three City Council hearings.
As a result of that lengthy process, on August 24, 2018, the Portland City Council unanimously passed Ordinance 188570 As Amended (ECF 169-4) to approve amendments to the Settlement Agreement, including amendments to Section IX. The amended Section IX contemplates a new community engagement body, the PCCEP, governed by a Plan which was appended to (but not included within) the Settlement Agreement. ECF 169-8, pp. 54-69; ECF 169-9. Following Council’s passage of Ordinance 188570, the amendments approved by the City Council were formally reviewed and approved by the DOJ. The parties and enhanced amicus AMAC then filed a Joint Stipulated Motion to Enter Amended Settlement Agreement on December 26, 2017. ECF 157.
This Court held a fairness hearing on the proposed amendments on April 19, 2018. Following the Fairness Hearing, the Court issued an order approving all of the amendments Page 4 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
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stipulated to by the parties with the exception of the changes to Sections IX and X which were conditionally approved, “pending the Court’s further evaluation at a Status Conference set for October 4, 2018, at 9:00 a.m., and final approval….” ECF 171, p. 2.
Since that time, and as set forth below in detail, the City has undertaken all necessary steps to form the PCCEP, Council has formally established the PCCEP, the Mayor has appointed the members of the PCCEP, Council has approved those appointments and PCCEP training is underway. PCCEP will hold its first public meeting in November 2018.
At this time, the City respectfully requests that the Court grant final approval of the amendments to Sections IX and X regarding community engagement/oversight. This will enable the PCCEP to begin its work with certainty as to the scope of its authority, duties and responsibilities. Final approval of the amendments is also necessary so that the parties have clarity on the terms which must be met for substantial compliance. This will allow the City to take the necessary remaining steps for substantial compliance and will provide certainty as to the standards to be used to guide the work of the COCL and the DOJ in assessing the City’s compliance with the terms of the Agreement.
III. DISCUSSION OF PCCEP FORMATION PROCESS
A. The City Has Established the PCCEP in Accordance with the Terms of the Settlement Agreement and the PCCEP Plan (as Amended)
As previously noted, City Council approved the amendments to the Settlement Agreement, including the amendments to Sections IX and X and the PCCEP Plan on August 24, 2017. ECF 169-4. Immediately after that Council action, the City began laying the foundation needed to successfully create the PCCEP.
Specifically, upon Council approval of the amendments, the City, staffed by PCCEP Project Manager Mandi Hood and supported by Mayoral and Council staff, began seeking an organizational development consultant in accordance with the terms of the PCCEP Plan to assist in the formation of the PCCEP. In November of 2017, the City posted a Request for Proposals
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(RFP) for such a consultant and created an evaluation committee of community stakeholders to evaluate the responsive proposals. The RFP did not generate a robust response, so the evaluation committee recommended that the RFP be canceled, revised and reissued. The committee made recommendations to the PCCEP Project Manager on how to revise the RFP and a new RFP was issued in February 2018. See Declaration of Mandi Hood (Hood Decl.), ¶¶ 1, 3.
The new RFP created by the City incorporated the recommendations of the evaluation committee and sought facilitators for the PCCEP with demonstrated experience in: group development and facilitation; transformational conflict resolution; assisting community groups in developing the skills needed to navigate challenging and controversial subject matter; and working actively with the mental health community. Id. at ¶ 4. Specifically, the RFP sought facilitators who would:
• Assist the City in identifying areas of risk in the current PCCEP Plan and strategize around those risks;
• Support the committee in creating group cohesion and utilizing members’ strengths and skills by establishing group norms and structure, with the goal of setting clear expectations, capacity building of new members and overall relationship building;
• Help set direction and vision for the work; • Help the group establish ground rules with one another and with the public; • Create a robust onboarding and training process for PCCEP members, including a
retreat; • Facilitate the development of the PCCEP work plan for the first year (with the
possibility of continuing that work for an additional 6 months to a year) with a focus on community outreach, equity and inclusion; • Facilitate town halls/large public meetings as needed; and • Transfer knowledge and skills to the City and PCCEP to increase their capacity to meaningfully engage with each other and the communities of Portland around Page 6 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND COMMITTEE ON COMMUNITY-ENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS
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policing and the Settlement Agreement. Id. at ¶ 7.
The evaluation committee then reviewed the proposals received. The final evaluation committee was largely (but not entirely) the same as the initial evaluation committee, and was comprised of the following members: Freda Ceaser, Director of Equity and Inclusion at Central City Concern; Dana Coffee, Portland Commission on Disability; Jan Friedman, Attorney, Disability Rights Oregon; Janie Gullickson, Executive Director of the Mental Health Association of Oregon; Kalei Luyben, member of the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC); and Daniel Portis-Cathers, member of the NAACP. Id. at ¶ 6.
Though the City initially sought one facilitator, the evaluation committee felt strongly that the top two candidates working together would best serve the PCCEP and the communities of Portland, and both facilitators were therefore selected. Id. at ¶ 7.
One of the two facilitators chosen was Training 4 Transformation, led by Hun Taing and Brandon Lee. Training 4 Transformation is an Oregon State-certified Minority Business Enterprise that specializes in equity-focused community building between law enforcement and the diverse residents they serve. Hun is a peace builder whose background includes art, reconciliation, public involvement and conflict transformation. Brandon brings lived experience as a survivor of racial profiling, served as Legal Redress Committee Chairman for NAACP and worked to fund the Community Police Review Board in Oakland, California. Id. at ¶ 8.
The other facilitator selected was the Brad Taylor Group, an Oregon State Certified Emerging Small Business specializing in developing communication strategies through training seminars, conflict resolution and facilitation services. Brad Taylor has worked as a direct line social worker, empowering residents living in supportive housing; as a homeless outreach worker, advocating for some of Portland’s most vulnerable residents; and as a mobile mental health crisis response worker within Multnomah County. Id. at ¶ 9.
The PCCEP facilitators officially began work on May 10, 2018. They hit the ground Page 7 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
COMMITTEE ON COMMUNITY-ENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS
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running, with an outreach strategy focused on removing barriers to participation for historically marginalized communities and empowering Portlanders with lived experience to take the lead in City processes. An emphasis was placed on obtaining quality applications for the PCCEP over merely amassing a large number of applications. To date, the facilitators have already put in approximately 500 hours of work. Id. at ¶10.
As the facilitators undertook this work and engaged with the community, they recommended that certain limited changes be made to the PCCEP Plan which had been approved by City Council, the DOJ, the AMAC and the PPA, and attached as exhibit to the Amended Settlement Agreement approved/conditionally approved by the Court. See ECF 171, pp. 69-75; Hood Decl. at ¶ 11. They, and local community experts, stressed the importance of youth participation on the committee, and of the need to incorporate best-practices for youth-adult interactions. See Declaration of Tracy Reeve (Reeve Decl.), Ex. 1 at p. 3. A process for the selection of youth members was developed. Id. In order to allow for youth members, without decreasing the size of the PCCEP, and in response to earlier concerns by the AMAC and others that the PCCEP should have a broader membership, it was proposed that the size of the PCCEP be increased from 11 to 13 members. Id. at pp. 2-3; Hood Decl., ¶ 11.
The facilitators, with community input, also proposed a community-focused and traumainformed approach to the organization and work of the PCCEP. Reeve Dec, Ex. 1 at p. 3. As part of this approach, it was determined to be appropriate to provide alternatives for PCCEP members who might require an accommodation to participate in PPB training exercises, while still ensuring that PCCEP members received an adequate understanding of the work and role of law enforcement. Id.
It was also deemed important that the workload of the PCCEP did not unreasonably discourage PCCEP membership, and this was to be addressed by reducing the required number of meetings from two monthly to one monthly while adding subcommittees to work on specific issues or matters. Id. Page 8 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
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Another change proposed was to allow for more meaningful community engagement that would build on the foundational PCCEP Plan but place on emphasis community gatherings and other less traditional forms of engagement, while still allowing the PCCEP to determine its own focus and methodology for community engagement. Id. Accordingly, it was proposed to eliminate the requirement that the PCCEP’s community engagement occur specifically in the form of town halls and round tables, instead leaving those as an option but not the only option for the PCCEP to engage the community. Id.
Finally, the facilitators felt it was important that the structure of PCCEP’s work and meetings provide for public observation and input while also preserving some flexibility for PCCEP to determine its meeting structure, and how to best protect the safety of PCCEP members. Accordingly, amendments were proposed to ensure that these two needs were balanced. Id.
The amendments to Section IX stipulated to by all parties and conditionally approved by the Court had provided the mechanism for changes to the PCCEP Plan, at paragraph 142 of the Amended Settlement Agreement. ECF 171, p. 46. The Amended Settlement Agreement provides: “Amicus AMAC and Intervenor PPA shall be consulted regarding and DOJ shall review and approve any amendments to the PCCEP Plan proposed to occur during the effective period of this Agreement.” Id. Enhanced amicus AMAC and Intervenor PPA were both consulted regarding the proposed amendments to the PCCEP Plan. Both provided significant input, and changes were made to the proposed amendments as a result of those consultations. Reeve Decl., ¶ 4.
Following this consultation process, a draft of the proposed PCCEP Plan amendments, which reflected the changes made in response to AMAC’s and PPA’s feedback, was provided to the DOJ for its review and approval. Id. at ¶ 5. DOJ subsequently notified the City that it had approved and reviewed the proposed changes. Id. Thereafter, on September 5, 2018, the Portland City Council passed Resolution 37384, which amended the PCCEP Plan and Page 9 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
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established the PCCEP. Id., Ex. 1 at p. 4. Both prior to and after the selection of the facilitators, and the work described above to
amend the PCCEP Plan and formally establish the PCCEP, the work to select the PCCEP members continued. A Selection Advisory Committee (SAC) comprised of one representative selected by each Council office was established to develop the written application and selection criteria for the PCCEP. The SAC members were: Dr. Cynthia Fowler, psychiatrist and Chair of the Health Committee of the NAACP, appointed by Commissioner Saltzman; Julie Ramos, mental health advocate and recent Vice Chair of the Citizen Review Committee, appointed by Commissioner Fritz; Musse Olol, Chairman of the Somali American Council of Oregon, appointed by Commissioner Eudaly; Bobbin Singh, Executive Director of the Oregon Justice Resource Center, appointed by Commissioner Fish; and Derald Walker, psychologist and Executive Director of Cascadia Behavioral Health, appointed by Mayor Wheeler. Hood Decl., ¶ 12.
A Planning Committee comprised of the SAC members and a representative from the Mayor’s office and each Council office, supported and staffed by the PCCEP Project Manager, and joined by the facilitators after they came on board in mid-May, engaged in a broad outreach strategy to reach as many Portlanders as possible. This included presenting at community meetings, hosting informational sessions, and having targeted and informal conversations within their respective networks. Id. at ¶ 13.
The following steps were undertaken to establish the PCCEP selection process: • On March 5, 2018, the SAC met for an overview of the PCCEP Selection Process and
received initial training from the City Attorney’s Office; • On March 19, 2018, the Planning Committee met to work on developing a one-page
job description, application and general criteria; • On March 29, 2018, the Planning Committee met and continued to develop the job
description, application and selection criteria; Page 10 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
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• On April 9, 2018, the Planning Committee met to review the final draft of the PCCEP job description, application, to develop an outreach plan (including lists of groups/community partners/organizations for informational forums and visits) and to identify specific individuals for one-one-one outreach efforts; and
• On April 16, 2018, the Planning Committee met to finalize the outreach plan and community presentation materials; finalize the FAQ, prepare SAC members for information sessions and begin scheduling community presentations.
Id. at ¶ 14. Six information sessions were then held in geographically diverse locations around the City: • Thursday, May 10, 2018, 6:30-7:30pm, Matt Dishman Community Center, 77 NE Knott Street, Portland, OR 97212; • Saturday, May 12, 2018, 2:00-3:00pm, Midland Library, 805 SE 122nd Avenue, Portland, OR 97223; • Wednesday, May 16, 2018, 6:30-7:30pm, Belmont Library, 1038 SE Cesar Chavez Blvd, Portland, OR 97214; • Sunday, May 20, 2018, 1:00-2:00pm, Capitol Hill Library, 10723 SW Capitol Highway, Portland, OR 97219; • Tuesday, May 22, 2018, 6:30-7:30pm, Kenton Library, 8226 N. Denver Ave., Portland, OR 97217; and • Thursday, May 24, 2018, 6:30-7:30pm, Friendly House, 1737 NW 26th Ave, Portland, OR 97210.
Id. at ¶ 15. In addition, the facilitators did substantial outreach at community events and with a
variety of community organizations and did targeted outreach to particular individuals and communities. Because of all the outreach efforts conducted by the facilitators and the Planning Committee, over 100 applications were received from a broad spectrum of Portlanders to serve Page 11 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
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on the PCCEP. Id. at ¶ 16. Outside of the development of the written application, neither the Mayor’s Office nor
Council offices were involved in any part of the SAC’s selection process. Discussion around who to interview and final recommendations to the Mayor were the sole responsibility of the SAC. The process was intentionally structured in this way in order to ensure fairness and preserve the integrity of the process. Id. at ¶ 17.
When reviewing written applications and interviewing candidates, the SAC focused on the following areas when assessing applicants: lived experience as a member of a marginalized community; lived experience with mental or physical health issues; interpersonal skills; experience working within/advocating for marginalized communities; and experience utilizing social services and engaging in government processes. Id. at ¶ 18.
The SAC met on July 3 and 23, 2018, to receive and review the applications, refine evaluation criteria and to select candidates for interviews. SAC interviews of candidates were conducted on August 16, 17, 18 and 19, 2018. These interviews were attended by the SAC, a representative of the DOJ or COCL (in a monitoring role) and the PCCEP Project Manager. Id. at ¶¶ 19-20.
The SAC then provided its recommendations to the Mayor listing the candidates they believed should be on the PCCEP, along with alternates. Mayoral interviews with adult PCCEP candidates were conducted on August 23, 24 and 28, 2018, and were attended by the Mayor, Senior Policy Advisor Nicole Grant, Jared Hager from the United States Attorney’s Office for the District of Oregon (as an observer) and by a SAC member. Interviews with youth were conducted on August 29 and 30, 2018. Id. at ¶¶ 21-22.
B. Thirteen Talented and Diverse PCCEP Members Have Been Appointed by the Mayor and Confirmed by the Portland City Council
The Mayor publicly announced his selection of PCCEP members and alternates on September 11, 2018. The Mayor submitted a letter on September 18, 2018, to the City Council
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requesting confirmation of the appointment of the PCCEP members, which included their names, term limits and biographies. The appointment request was placed on the City Council Agenda for September 26, 2018. Id. at ¶ 23; Id., Exhibit 1. City Council confirmed all 13 PCCEP members on September 26, 2018. Id., ¶ 24.
The 13 members of the PCCEP are: Sebastian Chevalier (youth member) Sebastian Chevalier was born in Portland and has lived here all his life. His father is from Haiti and he takes a lot of pride in being Haitian and considers it a big part of who he is. He currently attends Lincoln High School and is co-president of the Brothers Club. He's also had the amazing opportunity to explore the world with his family, traveling to Chile, Argentina, Haiti, the United Kingdom, Germany, Spain, and the Czech Republic. Sebastian temporarily lived in the Netherlands during his freshman year of high school. Because of this global lifestyle, he's developed the ability to step into an objective point of view in everyday situations and be as open-minded as possible. His goal for the future is to attend Morehouse College and pursue his passion in either music or film. Yolanda Clay Yolanda Clay has lived in Portland since 1991. She graduated from Portland State University with a Bachelor of Science in Social Science. Yolanda became empowered to vocalize and advocate for individuals with mental health issues by completing the Peer Support Specialist training. Her interests lie in learning and cultivating modes for obtaining states of personal and communal well-being. Yolanda has proven herself to be a lifelong learner with a commitment to continuously improving her personal processes. She has gained knowledge about the social effects of poverty and generational poverty on individuals and families by participating in the Communication Across Barriers' Poverty Institute conference. She has also developed skills to refocus and reframe her visions and goals to ensure her present and future success by
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completing STARTS, a leadership development program through REACH CDC. A selfdescribed introvert, Yolanda believes in the power of empathy for easing societal ills.
Lakayana Drury Lakayana Drury is the executive director of Word is Bond, a new nonprofit in Portland whose mission is to build positive relationships between young Black men and law enforcement. Lakayana helped found the organization in 2017. Lakayana facilitated nine community listening sessions to an estimated 400 police officers as part of the Portland Police Bureau's implicit bias training this past May. In addition to running the nonprofit, Lakayana teaches social studies at Rosemary Anderson High School. He is the staff lead for the boys to men group, robotics club and the Historically Black College Tour. Prior to moving to Portland, Lakayana taught in Philadelphia and Beijing, China and did community organizing in New Haven, Connecticut and Washington, D.C. Lakayana is passionate about reading, traveling, yoga and mixed martial arts. He received a Bachelor of Science in Applied Social Science concentration in History and Politics from the University of Wisconsin Stout. LaKeesha Dumas LaKeesha Dumas is an Office of Consumer Engagement Coordinator for Multnomah County. She comes with a wealth of knowledge and lived life experience; she is in recovery from a substance disorder and mental health issues. LaKeesha is certified by the State as a Community Health Worker, Peer Wellness Specialist, Adult Addictions Peer Support Specialist, Adult Mental Health Peer Support Specialist and a Youth and Young Adult Peer Support Specialist through the Oregon Health Authority. She started off working with systems when she was a part of the WOW Project through Healthshare, Kaiser Permanente, ORCHW and 5 Community Based Organizations, working on well-child checks and mental health. Through her advocacy for culturally-specific mental health services for those on the OHP, she was the recipient of the Oregon Public Health Association 2014 Emerging Leader Award. After that, she worked with CareOregon for multiple years, providing peer support services to their members Page 14 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND COMMITTEE ON COMMUNITY-ENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS
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Case 3:12-cv-02265-SI Document 183 Filed 09/27/18 Page 15 of 23
with complex health and social needs contracted through the Urban League of Portland and the African American Health Coalition. Born and raised in Portland, she has seen the gentrification, gang violence, drug epidemic and trauma faced by her community. Since being in recovery she has worked tirelessly reaching back to her community to give them hope and get them the appropriate resources to become healthier, overcome barriers and recover. LaKeesha is the Chair of The Traditional Health Workers Commission, on the board for Oregon Public Health Institute, the Behavioral Health Advisory Board, Regional Behavioral Health Collaborative, the Board for Portland's Black LGBTQ Community (Newly named Sankofa Collective Northwest), Healthshare's CAC, Vice President for MAAPPS (Metro-Plus Association of Addiction Peer Professionals), Peer Delivered Services Core Team through the Oregon Health Authority, Alternatives Planning Committee, Peerpocalypse Planning Committee, and the National Advisory Council for Complex Care and Social Needs. She also volunteers with other organizations such as Unify Portland, Straightway Services, Enough is Enough, and also recovery and healing groups ranging from anti-human trafficking, gang violence & domestic violence to addiction and mental health. Her role helps elevate the way the county provides services to its consumers, bridging the gap between county and community. Helping with technical assistance around the departments and paving the way for more peers with lived experience to be a part of the County's delivery system and at the tables where decisions are being made about consumers' health and needs.
Bob Dye Bob Dye is Senior General Manager of Lloyd Center in Portland, Oregon. A native Hawaiian, a certified Shopping Center Manager, and licensed Oregon Principal Broker, Dye took Lloyd Center's helm on July 1, 2015, and has over thirty-seven years of experience in the management, marketing, leasing and development of shopping centers and mixed-use properties. Over the course of his career Bob has worked with numerous municipalities and interacted with law enforcement agencies at multiple levels. Early in his career, working for a local savings Page 15 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND COMMITTEE ON COMMUNITY-ENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 PHONE: (503) 823-4047 FAX: (503) 823-3089

Case 3:12-cv-02265-SI Document 183 Filed 09/27/18 Page 16 of 23
bank and in conjunction with the Honolulu Police Department, Bob introduced the red dye money packs to combat robberies of banks and other financial institutions. Bob has been a student mentor for the Grossmont Union School District (San Diego) as well as the Newberg, Oregon School District. Prior to sustaining a severe and irreversible injury to his foot and ankle, Bob was an avid road cyclist participating in century rides in multiple states across the U.S. In 2001, Bob helped create and co-chaired the Alpine Challenge Bike Ride benefitting the Kiwanis Club of Alpine, California and providing mentoring and scholarships to at-risk high school students. Since 2001 the Alpine Challenge has raised over $200,000 in scholarships for 33 students.
Sharon Gary-Smith Sharon Gary-Smith is a native-born Oregonian, the first of the four daughters of a civil rights, educational equity and social justice mother (the late Bobbi L. Gary), and a labor and education justice father (the late Frederick Douglas Gary, Jr., a Tuskegee man). For five decades, Sharon has been a grassroots activist, agitator and organizer for educational equity, community economic development, and racial and social justice; as a second-generation African American Oregonian, it's in her DNA. She has held positions in corporate America, communitybased organizations and national and local philanthropy, most recently she served as the (retired) executive director of the MRG Foundation, Oregon's leading racial, social, environmental and economic justice funder. Sharon served on numerous local and national boards of directors including board emerita Western States Center, Portland; board emerita Social Justice Fund NW, Seattle; national Planned Parenthood board of directors, national NARAL board of directors, board member, Grantmakers of Oregon & SW Washington. She has been a consultant to Multnomah County, City of Portland, University of Oregon, Portland Public Schools, and a number of grassroots, community-based organizations. Sharon co-chairs Metro's Committee on Racial Equity (CORE) that is responsible for review, assessment, monitoring and
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Case 3:12-cv-02265-SI Document 183 Filed 09/27/18 Page 17 of 23
recommendations to METRO's Strategic Equity Plan, and to guide the METRO council in ensuring the organization embeds equitable operational practices throughout the organization.
Aden Hassan Aden Hassan currently serves as a board member of Cool Islam, a youth program for disadvantaged Muslim youth in Southwest Portland. He served on a board for pre-medical students while in university. He was also a board member of the Black Student Union and participated in Peer Mediation while a student at Lincoln High School. He considers one of his greatest strengths to be his willingness to listen and understand the perspectives of each and every voice. Aden believes the PCCEP should be focused on developing stronger strategies in conflict resolution regarding individuals with mental health conditions. Moreover, the PCCEP should work to enlist mental health experts and develop comprehensive training to heal the relationship between law enforcement and people with mental health conditions. Andrew Kalloch Andrew Kalloch is a former Staff Attorney at the New York Civil Liberties Union and led the criminal justice policy efforts for the Manhattan Borough President and the New York City Comptroller. He graduated from Harvard College and Harvard Law School, where he was a member of the Prison Legal Assistance Project and the Harvard Legal Aid Bureau. Mr. Kalloch is now the Americas Policy Manager for Airbnb, and lives in Johns Landing with his wife, Jenna Adams-Kalloch, and their one-year old daughter, Selma Abigail Adams-Kalloch. Michelle Lang Michelle Lang is Director of Campus Ministries at Warner Pacific University and serves at Imago Dei Community Church. She has a long career in urban development & advocacy, specifically in areas related to youth and the African American community. In 2015, after being shaken by the Michael Brown case in Ferguson, MO, Michelle set out to combine her extensive background in theater and community engagement to create an interactive workshop
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entitled "the Art of Tough Talks", a multi-media project that utilizes the arts to foster conversation, education and action on matters of social change and justice. She is a speaker, workshop facilitator and artist who believes in Art as Activism. She relocated to Portland in 2013.
Patrick Nolen Patrick was born in 1970. Due to untreated heath issues including depression and anxiety he was homeless in Portland off and on from 1990 to 2011. Patrick has been both a board member and community organizer at Sisters of the Road Cafe, a board member at Empowerment Initiatives, and an advisory council member for the Mental Health Association of Portland. His ongoing interests include public health care, the housing crisis, homelessness, local politics, reading nonfiction books - especially history, and meeting new people. He's recently moved in with his girlfriend and her 9-year old son. Sam Sachs Sam Sachs is a Portland Native. He graduated from Portland State University with a degree in Black Studies. He has worked in public safety for over 20 years, most recently as a Portland Park Ranger. He served as the chair of The Community and Police Relations Committee while serving as a Human Rights Commissioner for the City of Portland. Sam founded a non-profit called The No Hate Zone, focused on ending hate and racism in Portland through education, community engagement and advocacy. Sam enjoys spending time with family and friends and an occasional cigar. Zachary Thornhill Zachary Thornhill is a thirty-something biracial queer man born and raised in SE Portland. He is currently an adjunct instructor at Portland State University and a social worker with Multnomah County's Mental Health & Addiction Services Division. Professionally, Zachary has worked with individuals across the lifespan in areas of public health and social services, and he has a special interest in social work practice at the intersection of public safety, Page 18 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND COMMITTEE ON COMMUNITY-ENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS
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Case 3:12-cv-02265-SI Document 183 Filed 09/27/18 Page 19 of 23
aging, and behavioral health. He has previously worked at a variety of community-based mental health agencies and served on the ambassador council at Our House of Portland. While Zachary is a proud resident of the Pacific Northwest, he maintains an interest in traveling, having lived, worked, and studied across Africa, Asia, and Europe. He received a BA from Seattle University and a MSW from Washington University in St. Louis.
Kalonji Williams (youth member) Kalonji Williams is a sixteen-year old junior attending Rosemary Anderson High School. He is a member of student council and an avid reader. He is a member of Word is Bond. Kalonji is originally from Atlanta, Georgia and moved to Portland at an early age. He's traveled to Jamaica and is a humble young man looking to make a difference in his community with aspirations to attend college.
C. PCCEP Training is Underway and the PCCEP Meetings Will Begin in November
As part of the training process for PCCEP members, a retreat is being held in four sessions: Friday, September 28, 2018, from 6:00pm-9:00pm; Saturday, September 29, 2018, from 9:00am-5:00pm; Friday, October 12, 2018, from 6:00-9:00pm; and Saturday, October 13, 2018, from 6:00-9:00pm. The retreat will provide PCCEP members with the time and space to get to know one another, begin to coalesce as a group, get clarity on their work and mission and develop an organizational structure. Id at ¶¶ 25-26.
Between these weekend retreat dates, the PCCEP members will participate in training regarding the work of PPB, including attending PPB’s Community Academy and participating in a ride-along with a PPB officer. Id. at ¶ 26. A letter from PPB’s Training Division to the PCCEP Members regarding this training is attached as Exhibit 2 to Hood Decl.
Training will continue beyond these initial retreat dates and PPB training processes. In addition to the training topics outlined in the PCCEP Plan, topics will include training on institutional racism, understanding mental health from the perspective of those with lived
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experience and lessons learned from the COAB process. Id. at ¶ 27. Given the importance of the work of this committee and the need to thoughtfully build relationships with community members, the PCCEP will spend October 2018 continuing their training and will hold their first monthly meeting in November 2018. Id. at ¶ 28.
D. Community Engagement Has Been Occurring Through Community Forums Until the PCCEP Begins Public Meetings in November
Since February of 2018, and while the work to establish the PCCEP has been underway, the Mayor’s Office has hosted monthly community forums on public safety in order to provide a venue for community engagement on these important issues until the PCCEP is in a position to fulfil that role. To date, topics have included a status update on the Settlement Agreement (February 2018); a discussion on mental health and public safety (March 2018); a COCL Town Hall on the Settlement Agreement and community discussion (April 2018); a community listening session attended by Mayor Wheeler and PPB representatives (May 2018); a discussion of law enforcement’s interaction with vulnerable populations (June 2018); a forum on the of amendments to the PCCEP Plan and a status update on PCCEP formation (August 2018); and a discussion of addiction and the criminal justice system (September 2018). Id at ¶ 29.
IV. THE COURT SHOULD GIVE FINAL APPROVAL TO THE STIPULATED AMENDMENTS TO SECTIONS IX AND X OF THE SETTLEMENT AGREEMENT
At the April 19, 2018 hearing, pursuant to the parties’ and amicus’ stipulated motion, the Court granted final approval to all amendments except those pertaining to community engagement and oversight. After conferring, the parties agreed that they would have no objection to the Court granting only conditional approval as to the amendments related to community engagement and oversight, with the condition being that the parties report back in six months so the Court would be in a better position to give full unconditional approval. Based on all parties’ representations that they had no objection to this approach, the Court entered an order on May 15, 2018:
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“. . . .that the following amendments are CONDITIONALLY APPROVED, pending the Court’s further evaluation at a Status Conference set for October 4, 2018, at 9:00 am, and final approval:
1. Changes to Sections IX and X regarding community engagement and oversight. ECF 171, p. 2.
The City is pleased to now report that it has engaged in an extremely robust process to create the PCCEP, with the significant community support and involvement of the Evaluation Committee, the Planning Committee and the Selection Advisory Committee, the tireless work of the facilitators, the support of the Mayor and the Council, and the continuing advocacy of the AMAC and other community members. This has resulted in the appointment and confirmation of 13 outstanding community members to serve on the PCCEP. An extensive training process is underway, and the body’s first public meeting will be held in November.
The steps taken to get to this point have demonstrated that the PCCEP framework established under the Settlement Agreement (as amended) works. When the facilitators engaged with the community, they determined that some amendments to the PCCEP Plan were desirable to broaden the participation on the committee to include youth and to allow more folks the possibility of participating by ensuring that the time commitment wasn’t unduly onerous and that accommodations were available. The PCCEP Plan was purposely created by the parties outside of the Settlement Agreement itself to provide for this type of flexibility. This existence linked to but also independent of the Settlement Agreement is particularly important as the PCCEP is intended to endure beyond the term of the Settlement Agreement. Nonetheless, safeguards were placed in the Settlement Agreement itself, requiring the City to consult with the AMAC and PPA prior to making any changes to the PCCEP Plan, and, during the term of the Agreement, to secure DOJ approval for any such changes. That occurred in this case and the proposed changes were improved through the collaborative process of consulting with the AMAC and the PPA. Should the need to make changes arise again in the future, that process, which is set forth in the Page 21 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND
COMMITTEE ON COMMUNITY-ENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 PHONE: (503) 823-4047 FAX: (503) 823-3089

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framework of the Settlement Agreement itself, can be used to ensure that the PCCEP can achieve its objectives of meaningful community engagement with and oversight of the Settlement Agreement and the City’s provision of police services.
Following a successful agreement among the parties and the amicus on a path forward for community engagement, embodied in the Settlement Agreement amendments, the City has embraced the work of establishing a new community engagement body and the community has responded -- meeting with the facilitators, serving on the evaluation and selection committees, participating in forums and information sessions and submitting over 100 applications to serve on the PCCEP. An incredibly talented and diverse group of applicants, drawn from across a broad spectrum of the community, has been nominated by the Selection Advisory Committee, appointed by the Mayor and confirmed by the City Council. That group is now constituted as the Portland Committee on Community-Engaged Policing and is undergoing extensive training prior to holding its first public meeting in November.
The PCCEP, the City, the DOJ, the COCL, the members of the PPA, enhanced amicus AMAC and the public now need the certainty of an approved framework to guide – and to judge – the work being done under the Settlement Agreement. The PCCEP should not be asked to undertake its difficult work without clear and settled legal authority, duties and responsibilities. The City is also entitled to certainty as to what its legal obligations are as it strives to come into full compliance with Sections IX and X of the Settlement Agreement. The DOJ and COCL need legal certainty to perform their monitoring role, and the AMAC and the public likewise deserve to know to what standards the City is bound by so that its performance can be judged accordingly.
V. CONCLUSION The City is asking a lot from the dedicated community members who have stepped up to serve on the PCCEP to do the difficult work of helping the City and PPB to improve their engagement with the community and their provision of police services. The City is making a Page 22 – CITY OF PORTLAND’S MEMORANDUM UPDATING STATUS OF PORTLAND COMMITTEE ON COMMUNITY-ENGAGED POLICING IN SUPPORT OF FINAL APPROVAL OF SETTLEMENT AGREEMENT AMENDMENTS
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 PHONE: (503) 823-4047 FAX: (503) 823-3089

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commitment to fully support the PCCEP and to meet all of its other obligations under the Settlement Agreement. The DOJ and the COCL continue to perform the complex and important work of evaluating the City’s compliance with the terms of the Settlement Agreement. All of

these parties need the certainty of final approval by the Court of the terms of the Settlement

Agreement that govern and guide their efforts. The City respectfully requests that this Court

grant final approval of the amendments to Sections IX and X of the Settlement Agreement.

Dated: September 27, 2018.

Respectfully submitted,

/s/ Tracy Reeve
TRACY REEVE, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov Of Attorneys for Defendant

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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 PHONE: (503) 823-4047 FAX: (503) 823-3089

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 14­35903 Nature of Suit: 1440 Other Civil Rights USA v. City of Portland, et al Appeal From: U.S. District Court for Oregon, Portland Fee Status: Paid

Case Type Information: 1) civil 2) united states 3) null

Originating Court Information:

District: 0979­3 : 3:12­cv­02265­SI

Court Reporter: D. W. Apodaca, Court Reporter

Court Reporter: Jill Erwin, Court Reporter

Trial Judge: Michael H. Simon, District Judge

Date Filed: 12/17/2012

Date Order/Judgment:

Date Order/Judgment EOD:

08/29/2014

08/29/2014

Date NOA Filed: 10/27/2014

Prior Cases: None

Current Cases: None

Docketed: 10/27/2014 Termed: 09/21/2015
Date Rec'd COA: 10/27/2014

UNITED STATES OF AMERICA Plaintiff ­ Appellee,

Adrian Lee Brown, Assistant U.S. Attorney [COR LD NTC Assist US Attorney] DOJ­USAO Firm: 503/727­1000 1000 S.W. Third Avenue Portland, OR 97204
Billy J. Williams, U.S. Attorney Direct: 503­727­1108 [COR LD NTC Assist US Attorney] DOJ­USAO Suite 600 Firm: 503/727­1000 1000 S.W. Third Avenue Portland, OR 97204
Mark Lenard Gross, Esquire, Deputy Chief Counsel Direct: 202­514­2195 [COR NTC Government] DOJ ­ U.S. DEPARTMENT OF JUSTICE Civil Rights Division/Appellate Section P.O. Box 14403, Ben Franklin Station Washington, DC 20044­4403
David Knight, Trial Attorney Direct: 503­727­1003 [COR NTC Assist US Attorney] DOJ­USAO Suite 600 Firm: 503/727­1000 1000 S.W. Third Avenue Portland, OR 97204
Christopher Chen­Hsin Wang, Attorney Direct: 202­514­9115 [COR NTC Government] DOJ ­ U.S. DEPARTMENT OF JUSTICE Civil Rights Division/Appellate Section 3728

v. CITY OF PORTLAND
Defendant ­ Appellant,
PORTLAND POLICE ASSOCIATION Intervenor­Defendant,

P.O. Box 14403, Ben Franklin Station Washington, DC 20044­4403
Kelly A. Zusman, Assistant U.S. Attorney [COR NTC Assist US Attorney] DOJ­USAO Firm: 503/727­1000 1000 S.W. Third Avenue Portland, OR 97204
Ellen Osoinach, Deputy City Attorney Direct: 503­823­4047 [COR LD NTC Deputy City Attorney] OFFICE OF THE CITY ATTORNEY Suite 430 1221 SW Fourth Avenue Portland, OR 97204
Denis M. Vannier, Esquire, Deputy City Attorney Direct: 503­823­4047 [COR LD NTC Deputy City Attorney] OFFICE OF THE CITY ATTORNEY 430 1221 SW Fourth Avenue Portland, OR 97204
Anil S. Karia Direct: 866­486­5556 [COR NTC Retained] Public Safety Labor Group 3021 NE Broadway Portland, OR 97232

UNITED STATES OF AMERICA, Plaintiff ­ Appellee,
v. CITY OF PORTLAND,
Defendant ­ Appellant, and PORTLAND POLICE ASSOCIATION,
Intervenor­Defendant.

10/27/2014

1

16 pg, 368.4 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 11/03/2014. Transcript ordered by 11/26/2014. Transcript due 12/26/2014. Appellant City of Portland opening brief due 02/04/2015. Appellee United States of America answering brief due 03/06/2015. Appellant's optional reply brief is due 14 days after service of the answering brief. [9291763] (RT) [Entered: 10/27/2014 04:10 PM]

11/03/2014

2

Filed (ECF) Appellant City of Portland Mediation Questionnaire. Date of service: 11/03/2014. [9300077]

7 pg, 935.52 KB [14­35903] (Osoinach, Ellen) [Entered: 11/03/2014 04:16 PM]

11/10/2014

3

Filed (ECF) notice of appearance of Anil S. Karia for ­ Portland Police Association. Date of service:

3 pg, 94.44 KB 11/10/2014. [9308374] [14­35903] (Karia, Anil) [Entered: 11/10/2014 08:20 PM]

11/12/2014

4

Added attorney Anil S. Karia for Portland Police Association, in case 14­35903. [9309030] (EL) [Entered: 11/12/2014 09:44 AM]

11/13/2014

5

Filed (ECF) notice of appearance of David W. Knight for Appellee USA. Date of service: 11/13/2014.

3 pg, 59.35 KB [9311929] [14­35903] (Knight, David) [Entered: 11/13/2014 01:28 PM]

11/13/2014

6

Filed (ECF) notice of appearance of Kelly A. Zusman for Appellee USA. Date of service: 11/13/2014.

3 pg, 57.83 KB [9311942] [14­35903] (Zusman, Kelly) [Entered: 11/13/2014 01:35 PM]

11/13/2014

7

Added attorney David Knight, Kelly A. Zusman for USA, in case 14­35903. [9312012] (KB) [Entered: 11/13/2014 01:56 PM]

11/17/2014

8

5 pg, 315.2 KB

MEDIATION CONFERENCE SCHEDULED ­ The court has scheduled a telephone Assessment Conference, 01/07/2015, 11:00 a.m. PACIFIC Time. The Circuit Mediator will initiate the conference call by contacting each person on the attached list. Please be available for the call at least five minutes before the scheduled time. Counsel should review the attached list and inform the Mediation Assistant by email at least 72 hours in advance of the scheduled call of any corrections to the list....The briefing schedule previously set by the court remains in effect. [9316034] (CL) [Entered: 11/17/2014 03:33 PM]

11/26/2014

9

Filed (ECF) notice of appearance of Christopher C. Wang for Appellee USA. Date of service: 11/26/2014.

2 pg, 23.48 KB [9327443] [14­35903] (Wang, Christopher) [Entered: 11/26/2014 07:30 AM]

11/26/2014

10

Added attorney Christopher Chen­Hsin Wang for USA, in case 14­35903. [9327664] (KB) [Entered: 11/26/2014 09:11 AM]

12/10/2014

11

Filed (ECF) notice of appearance of Mark Leonard Gross for Appellee USA. Date of service: 12/10/2014.

2 pg, 23.46 KB [9344022] [14­35903] (Gross, Mark) [Entered: 12/10/2014 01:19 PM]

12/10/2014

12

Added attorney Mark Lenard Gross for USA, in case 14­35903. [9344065] (EL) [Entered: 12/10/2014 01:29 PM]

12/23/2014

13

1 pg, 43.22 KB

Filed order MEDIATION (CL): A dial­in telephonic conference will be held on January 7, 2015, at 11:00 a.m. Pacific Time. Dial­in information is available to counsel of record as a separate document attached to the electronic filing notification of this order. If any counsel of record is not able to access the dial­in information, please notify the Mediation Program immediately at Catherine_Lirio@ca9.uscourts.gov. [9360006] (SML) [Entered: 12/23/2014 11:33 AM]

01/12/2015

14

3 pg, 46.49 KB

Filed order MEDIATION (LJ): The briefing schedule previously set by the court is vacated. The telephonic conference previously scheduled for January 7, 2015, is canceled. An in­person mediation conference will be held on February 23, 2015, beginning at 10:00 a.m. Pacific Time, at the Pioneer Courthouse, 700 S.W. Sixth Avenue, ADR Suite, Portland, Oregon. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of appellant: City of Portland representatives Gail Shibley and Dora Perry, attorneys Ellen Osoinach and Denis Vannier. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of appellee: United States representative Jonas Geisler, attorneys David Knight and Bill Williams, in person and Adrian Brown, Chris Wang and Mark Gross by telephone standby. Participants shall have full authority to negotiate and settle the case on any terms at the conference. Mediation statements of no more than 10 pages shall be submitted to the Circuit Mediator [fax no. (415) 355­8566] on or before February 12, 2015... Mediation statements shall not be filed with the court... Participants should plan to spend the entire day engaged in meaningful settlement discussions and come prepared with thoughtful solutions to this dispute. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant further discussions prior to the next scheduled conference. (Please see document for full text) [9378168] (SML) [Entered: 01/12/2015 10:38 AM]

01/14/2015

15

3 pg, 52.38 KB

Filed amended order MEDIATION (LJ): The court’s order of January 12, 2015 is amended as follows: The briefing schedule previously set by the court is vacated. The telephonic conference previously scheduled for January 7, 2015, is canceled. An in­person mediation conference will be held on February 23, 2015, beginning at 10:00 a.m. Pacific Time, at the Pioneer Courthouse, 700 S.W. Sixth Avenue, ADR Suite, Portland, Oregon. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of appellant: City of Portland representatives Gail Shibley and Dora Perry, attorneys Ellen Osoinach and Denis Vannier. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of appellee: United States

representative Jonas Geisler, attorneys David Knight and Bill Williams, in person and Adrian Brown, Chris Wang and Mark Gross by telephone standby. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of intervenor: Portland Police Association representatives Daryl Turner, Tom Perkins, and attorney Anil Karia. Participants shall have full authority to negotiate and settle the case on any terms at the conference. Mediation statements of no more than 10 pages shall be submitted to the Circuit Mediator [fax no. (415) 355­8566] on or before February 12, 2015...Mediation statements shall not be filed with the court. Mediation statements shall contain the addresses and telephone and fax numbers of all participants. Participants should plan to spend the entire day engaged in meaningful settlement discussions and come prepared with thoughtful solutions to this dispute. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant further discussions prior to the next scheduled conference. (SEE ORDER FOR FULL TEXT) [9381905] (OC) [Entered: 01/14/2015 10:46 AM]

02/25/2015

16

2 pg, 34.69 KB

Filed order MEDIATION (LJ): The in­person mediation will continue on March 10, 2015, beginning at 10:00 a.m. Pacific Time, at the Pioneer Courthouse, 700 S.W. Sixth Avenue, ADR Suite, Portland, Oregon. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of appellant: City of Portland representatives Gail Shibley and Dora Perry, attorneys Ellen Osoinach and Denis Vannier. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of appellee: United States representative Jonas Geisler, attorneys David Knight and Bill Williams, in person and Adrian Brown, Chris Wang and Mark Gross by telephone standby. Unless excused by the Circuit Mediator prior to the scheduled conference, the following participants shall attend on behalf of intervenor: Portland Police Association representatives Daryl Turner, Tom Perkins, and attorney Anil Karia. Participants shall have full authority to negotiate and settle the case on any terms at the conference. Participants should plan to spend the entire day engaged in meaningful settlement discussions and come prepared with thoughtful solutions to this dispute. [9434564] (AF) [Entered: 02/25/2015 01:25 PM]

03/13/2015

17

1 pg, 41.12 KB

Filed order MEDIATION (LJ): The court will initiate a further dial­in telephonic conference on April 1, 2015, at 11:00 a.m. Pacific Time. Dial­in information is available to counsel of record as a separate document attached to the electronic filing notification of this order. If any counsel of record is not able to access the dial­in information, please notify the Mediation Program immediately at Catherine_Lirio@ca9.uscourts.gov. [9456201] (SML) [Entered: 03/13/2015 10:25 AM]

07/17/2015

18

Filed (ECF) Appellant City of Portland Joint Motion to remand case. Date of service: 07/17/2015. [9613462]

10 pg, 705.25 KB [14­35903] (Vannier, Denis) [Entered: 07/17/2015 09:49 AM]

07/29/2015

19

1 pg, 38.34 KB

Filed order (MARY M. SCHROEDER, WILLIAM C. CANBY and ALEX KOZINSKI): The parties’ joint motion for remand is granted. This appeal is remanded to the district court for the limited purpose of adopting and entering the parties’ proposed Amended Order Entering Settlement Agreement. REMANDED. [9627359] (AF) [Entered: 07/29/2015 03:02 PM]

08/06/2015

20

Filed (ECF) Appellant City of Portland Joint Motion to dismiss case voluntarily pursuant to FRAP 42(b).

3 pg, 636.74 KB Date of service: 08/06/2015. [9637033] [14­35903] (Vannier, Denis) [Entered: 08/06/2015 11:06 AM]

09/21/2015

21

1 pg, 38.07 KB

Filed order (Deputy Clerk: SVG): The parties’ joint motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. See Fed. R. App. P. 42(b). This order served on the district court shall act as and for the mandate of this court. [9690293] (AF) [Entered: 09/21/2015 01:43 PM]

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 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 16­73878 In re: City of Portland v. USDC­ORP Appeal From: U.S. District Court for Oregon, Portland Fee Status: Paid

Docketed: 12/09/2016 Termed: 12/27/2017

Case Type Information: 1) original proceeding 2) paid mandamus/prohibition 3) null

Originating Court Information: District: 0979­3 : 3:12­cv­02265­SI Trial Judge: Michael H. Simon, District Judge Date Rec'd COA: 12/09/2016

Prior Cases: 14­35903 Date Filed: 10/27/2014 Date Disposed: 07/29/2015 Disposition: Remanded ­ Judge Order 14­35903 Date Filed: 09/21/2015 Date Disposed: 09/21/2015 Disposition: FRAP 42b Dismissal ­ Clerk Order

Current Cases: None

In re: CITY OF PORTLAND ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ CITY OF PORTLAND
Petitioner,
v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, PORTLAND
Respondent, UNITED STATES OF AMERICA
Real Party in Interest,

Tracy Pool Reeve Direct: 503­823­4047 [COR LD NTC City Attorney] OFFICE OF THE CITY ATTORNEY Room 430 1221 SW Fourth Avenue Portland, OR 97204
Denis M. Vannier, Esquire, Deputy City Attorney Direct: 503­823­4047 [COR NTC City Attorney] OFFICE OF THE CITY ATTORNEY 430 1221 SW Fourth Avenue Portland, OR 97204
Billy J. Williams, U.S. Attorney Direct: 503­727­1108 [COR LD NTC Assist US Attorney] DOJ­USAO Suite 600 Firm: 503/727­1000 1000 S.W. Third Avenue Portland, OR 97204
Tovah Calderon Direct: 202­514­4142 [COR NTC Government] DOJ ­ U.S. DEPARTMENT OF JUSTICE Civil Rights Division/Appellate Section P.O. Box 14403, Ben Franklin Station Washington, DC 20044­4403

PORTLAND POLICE ASSOCIATION Real Party in Interest,
ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM
Real Party in Interest,
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

Jared Hager, Assistant U.S. Attorney Direct: 503­727­1120 [COR NTC Assist US Attorney] DOJ­USAO Suite 600 Firm: 503/727­1000 1000 S.W. Third Avenue Portland, OR 97204
Teresa Kwong, Attorney Direct: 202­514­2195 [COR NTC Government] DOJ ­ U.S. DEPARTMENT OF JUSTICE Civil Rights Division/Appellate Section P.O. Box 14403, Ben Franklin Station Washington, DC 20044­4403
Anil S. Karia Direct: 866­486­5556 [COR LD NTC Retained] Public Safety Labor Group 3021 NE Broadway Portland, OR 97232
Jessica Ashlee Albies, Attorney Direct: 503­308­4770 [COR LD NTC Retained] Albies & Stark 210 SW Morrison Street Suite 400 Portland, OR 97204
Kristen Chambers, Attorney Direct: 503­222­1640 [COR LD NTC Retained] KIRKLIN THOMPSON & POPE LLP 1000 SW Broadway Suite 1616 Portland, OR 97205
Shauna M. Curphey Direct: 503­241­2848 [COR LD NTC Retained] Curphey & Badger, P.A. 3519 NE 15th Avenue #155 Portland, OR 97212

ALBINA MINISTERIAL ALLIANCE FOR JUSTICE AND POLICE REFORM
Amicus Curiae,

Shauna M. Curphey Direct: 503­241­2848 [COR LD NTC Retained] (see above)

In re: CITY OF PORTLAND, ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ CITY OF PORTLAND,
Petitioner, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, PORTLAND,
Respondent, UNITED STATES OF AMERICA; PORTLAND POLICE ASSOCIATION; ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM,
Real Parties in Interest.

12/09/2016

1

FILED PETITION FOR WRIT OF MANDAMUS. DOCKETED CAUSE AND ENTERED APPEARANCES

385 pg, 8.83 MB OF COUNSEL. NOTIFIED REAL PARTIES IN INTEREST OF FILING. [10227894] (BY) [Entered:

12/09/2016 04:47 PM]

12/19/2016

2

1 pg, 19.49 KB

Filed Petitioner City of Portland letter dated 12/15/2016 re: unnecessary for the Court to address the portion of the City's petition requesting a stay of that proceeding, see Petition for Writ of Mandamus at 18.. Paper filing deficiency: None. [10240677] (JFF) [Entered: 12/20/2016 03:36 PM]

12/21/2016

3

Filed (ECF) notice of appearance of Teresa Kwong for Real Party in Interest USA. Date of service:

2 pg, 78.07 KB 12/21/2016. [10242055] [16­73878] (Kwong, Teresa) [Entered: 12/21/2016 01:07 PM]

12/21/2016

4

Filed (ECF) notice of appearance of Tovah R. Calderon for Real Party in Interest USA. Date of service:

2 pg, 77.46 KB 12/21/2016. [10242083] [16­73878] (Calderon, Tovah) [Entered: 12/21/2016 01:18 PM]

12/21/2016

5

Added attorneys Teresa Kwong and Tovah Calderon for USA. [10242175] (RL) [Entered: 12/21/2016 01:44 PM]

02/28/2017

6

2 pg, 191.92 KB

Filed order (WILLIAM C. CANBY, RICHARD R. CLIFTON and MICHELLE T. FRIEDLAND) This petition for a writ of mandamus raises issues that warrant an answer. See Fed. R. App. P. 21(b). Accordingly, within 14 days after the date of this order, the real parties in interest shall file an answer. The district court, within 14 days after the date of this order, may address the petition if it so desires. The district court may elect to file an answer with this court or to issue an order and serve a copy on this court. Petitioner may file a reply within 5 days after service of the answer(s). The petition, answer(s), and any reply shall be referred to the next available motions panel. The Clerk shall serve this order on the district court and District Judge Michael H. Simon. [10337183] (HC) [Entered: 02/28/2017 04:30 PM]

03/07/2017

7

7 pg, 17.34 KB

Filed (ECF) Real Party in Interest USA Unopposed Motion to extend time to file a response until 04/13/2017. Date of service: 03/07/2017. [10346722] [16­73878] (Kwong, Teresa) [Entered: 03/07/2017 01:56 PM]

03/07/2017

8

Filed (ECF) Streamlined request for extension of time to file Answering Brief by Real Party in Interest Portland Police Association. New requested due date is 04/13/2017. [10347579] [16­73878] (Karia, Anil) [Entered: 03/07/2017 09:49 PM]

03/08/2017

9

Streamlined request [8] by Real Party in Interest Portland Police Association to extend time to file the brief is not approved because the briefing schedule has not been set in this appeal. To extend time to file a response to the 02/28/2017 order you will have to file a motion. [10347839] (JN) [Entered: 03/08/2017 09:36 AM]

03/08/2017

10

7 pg, 81.73 KB

Filed (ECF) Real Party in Interest Portland Police Association Unopposed Motion to extend time to file a response until 04/13/2017. Date of service: 03/08/2017. [10348266] [16­73878] (Karia, Anil) [Entered: 03/08/2017 11:43 AM]

03/08/2017

11

2 pg, 194.85 KB

Filed clerk order (Deputy Clerk: AT): The motion of real party in interest United States for an extension of time to file its answer to the petition for writ of mandamus is granted (Docket Entry No. [8]). The answer of real party in interest United States is due April 13, 2017. Petitioner’s optional reply is due within 5 days after service of the answer. [10348764] (Trierweiler, Nicole) [Entered: 03/08/2017 02:35 PM]

03/13/2017

12

2 pg, 195.14 KB

Filed clerk order (Deputy Clerk: AT): The motion of real party in interest Portland Police Association for an extension of time to file its answer to the petition for writ of mandamus is granted (Docket Entry No. [10]). The answer of real party in interest Portland Police Association is due April 13, 2017. Petitioner’s optional reply remains due within 5 days after service of the answer(s). [10353917] (ME) [Entered: 03/13/2017 01:55 PM]

03/15/2017

13

Filed United States District Court response to court order dated 2/28/2017. Served on 03/15/2017.

9 pg, 106.86 KB [10358300] (RL) [Entered: 03/15/2017 04:13 PM]

03/22/2017

14
25 pg, 347.05 KB

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Albina Ministerial Alliance for Justice and Police Reform. Date of service: 03/22/2017. [10366446] [16­ 73878]­­[COURT UPDATE: Removed excerpts of record (filed correctly in entry [17]). 03/23/2017 by SLM] (Curphey, Shauna) [Entered: 03/22/2017 05:22 AM]

03/22/2017

15

Filed (ECF) Real Party in Interest USA Unopposed Motion to refer case to mediation. Date of service:

5 pg, 18.33 KB 03/22/2017. [10367539] [16­73878] (Kwong, Teresa) [Entered: 03/22/2017 02:25 PM]

03/22/2017

17

23 pg, 1.58 MB

Submitted (ECF) supplemental excerpts of record. Submitted by Amicus Curiae Albina Ministerial Alliance for Justice and Police Reform. Date of service: 03/22/2017. [10369189]­­[COURT ENTERED FILING to correct entry [14].] (SLM) [Entered: 03/23/2017 02:53 PM]

03/23/2017

16

Entered appearance of Amicus Curiae Albina Ministerial Alliance for Justice and Police Reform. [10369040] (GV) [Entered: 03/23/2017 02:18 PM]

03/23/2017

18

Filed clerk order: The amicus brief [14] submitted by Albina Ministerial Alliance for Justice and Police

2 pg, 188.22 KB Reform is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper

format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical

to the version submitted electronically. Cover color: green. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate CM/ECF. The Court has reviewed the supplemental excerpts of record [17] submitted by Albina Ministerial Alliance for Justice and Police Reform. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30­ 1.6. [10369447] (GV) [Entered: 03/23/2017 03:49 PM]

03/27/2017

19

7 pg, 89.27 KB

Filed order MEDIATION (CLB): Date: April 14, 2017 Time: 11:00 a.m. Pacific Time (DIAL­IN CONFERENCE) The unopposed motion of the United States (docket entry #[15]) to refer this matter to mediation is granted. The due dates for real parties in interest to file answers to the petition are vacated. The court will hold a dial­in telephonic conference, with counsel only, on the date and time indicated above. Each participant will receive an email with dial­in information. Please notify the Mediation Office at mediation@ca9.uscourts.gov if counsel does not receive an email or if additional participants should be added. Counsel should review the attached list and inform the Mediation Assistant by email (Beatriz_Smith@ca9.uscourts.gov) of any corrections to the list. Please notify Chief Circuit Mediator Claudia L. Bernard immediately by email (Claudia_Bernard@ca9.uscourts.gov) if counsel has an unavoidable scheduling conflict. Please copy all counsel on any such communications. All discussions that take place in the context of the conference are strictly confidential. See Circuit Rule 33­1. For more detailed information about the conference, confidentiality, the Mediation Program and its procedures generally, please see the attachment to this order and the Mediation Program web page: www.ca9.uscourts.gov/mediation. [10372031] (Trierweiler, Nicole) [Entered: 03/27/2017 10:15 AM]

03/29/2017

20

Received 7 paper copies of Amicus Brief [14] filed by Albina Ministerial Alliance for Justice and Police Reform. [10375708] (RG) [Entered: 03/29/2017 10:35 AM]

03/29/2017

21

Filed four paper copies of supplemental excerpts of record [17] in 1 volume(s) filed by Amicus Curiae Albina Ministerial Alliance for Justice and Police Reform. [10377531] (GV) [Entered: 03/30/2017 12:50 PM]

04/11/2017

22

MEDIATION CONFERENCE RESCHEDULED ­ DIAL­IN Mediation, 05/01/2017, 11:00 a.m. Pacific Time.

1 pg, 194.33 KB (originally scheduled on 04/14/2017 ). [10392077] (BS) [Entered: 04/11/2017 01:37 PM]

05/04/2017

23

Filed (ECF) notice of appearance of Denis M. Vannier for Petitioner City of Portland and ­ City of Portland.

2 pg, 192.66 KB Date of service: 05/04/2017. [10421969] [16­73878] (Vannier, Denis) [Entered: 05/04/2017 11:25 AM]

05/04/2017

24

Added attorney Denis M. Vannier for City of Portland. [10422010] (RL) [Entered: 05/04/2017 11:35 AM]

05/11/2017

25

2 pg, 32.86 KB

Filed order MEDIATION (CLB): The undersigned will hold a meeting with the Department of Justice only, on May 12, 2017, at 9:30 a.m., in Washington, D.C. The undersigned will hold a meeting with the City of Portland only, at the Portland City Attorneys Office, on May 18, 2017, at 11:00 a.m. Pacific Time. The undersigned will hold a meeting with the City of Portland and Portland Police Association, at the Portland City Attorneys Office, on May 18, 2017, at 12:00 p.m. Pacific Time. The court will hold an in­person mediation on June 2, 2017, at 10:00 a.m., at the Pioneer Courthouse, 700 S.W. 6th Avenue, Portland, Oregon 97204 [telephone 503­833­5305]. [10430588] (JMR) [Entered: 05/11/2017 09:59 AM]

06/16/2017

26

2 pg, 45.16 KB

Filed order MEDIATION (CLB): A dial­in telephonic conference will be held on June 23, 2017, at 10:00 a.m. Pacific Time with the City of Portland, the Portland Police Association, and the Department of Justice. Each participant will receive an email with dial­in information. The court will hold an in­person mediation with the City of Portland, the Portland Police Association, the Department of Justice, and amicus Albina Ministerial Alliance Coalition for Justice and Police Reform on July 14, 2017, at 10:00 a.m., at the Pioneer Courthouse, 700 S.W. 6th Avenue, Portland, Oregon 97204 [telephone: 503­833­5305]. The participants should gather in the ADR Suite ­ 1st floor. [10477369] (OC) [Entered: 06/16/2017 03:23 PM]

06/28/2017

27

Filed (ECF) notice of appearance of Jared D. Hager for Real Party in Interest USA. Date of service:

2 pg, 108.62 KB 06/28/2017. [10491563] [16­73878] (Hager, Jared) [Entered: 06/28/2017 03:27 PM]

06/28/2017

28

Attorney Adrian Lee Brown substituted by Attorney Jared Hager. [10491651] (RL) [Entered: 06/28/2017 03:58 PM]

09/20/2017

29

1 pg, 32.11 KB

Filed order MEDIATION (CLB): The court will hold an in­person mediation with the City of Portland, the Portland Police Association, the Department of Justice, and amicus Albina Ministerial Alliance Coalition for Justice and Police Reform on October 6, 2017, at 10:00 a.m., at the Pioneer Courthouse, 700 S.W. 6th Avenue, Portland, Oregon 97204 [telephone: 503­833­5305]. [10588378] (JMR) [Entered: 09/20/2017 04:32 PM]

12/26/2017

30

Filed (ECF) Petitioner City of Portland Motion to dismiss the case. Date of service: 12/26/2017. [10703737]

3 pg, 181.26 KB [16­73878] (Vannier, Denis) [Entered: 12/26/2017 04:26 PM]

12/27/2017

31

1 pg, 31.91 KB

Filed order (Deputy Clerk: CLB) Petitioner’s motion to voluntarily dismiss this petition for writ of mandamus (Docket Entry No. [30]) is granted. Fed. R. App. P. 42(b). The parties shall bear their own costs and attorneys’ fees on appeal. A copy of this order shall serve as and for the mandate of this court. [10704456] (GWL) [Entered: 12/27/2017 10:57 AM]

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 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 1 of 26
Case No. ________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
IN RE CITY OF PORTLAND, Petitioner, v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON,
Respondent and UNITED STATES OF AMERICA, PORTLAND POLICE ASSOCIATION, and ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM, Respondents-Real Parties in Interest.
From the United States District Court For the District of Oregon, Portland Division,
The Hon. Michael H. Simon Case No. 3:12-cv-02265-SI
PETITION FOR WRIT OF MANDAMUS, FOR A STAY OF PROCEEDINGS AND FOR REASSIGNMENT ON REMAND
TRACY REEVE City Attorney Office of City Attorney 1221 SW Fourth Ave., Rm. 430 Portland, OR 97204 Telephone No.: (503) 823-4047 Facscimile No.: (503) 823-3089 Email: tracy.reeve@portlandoregon.gov
Attorney for Petitioner

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 2 of 26
PRAYER FOR RELIEF The City of Portland invokes the supervisory authority of this Court under 28 U.S.C. § 1651(a), FRAP 21, and Ninth Circuit Rule 21-2, and prays for a writ of mandamus directing the United States District Court for the District of Oregon: (a) to withdraw its Order setting a further Status Conference in United
States of America v. City of Portland, United States District Court (Oregon) No. 3:12-cv-02265-SI (ER-300); (b) to schedule or hold no more than one Status Conference in any calendar year, unless either the United States of America or the City of Portland invokes the breach provisions of their Settlement Agreement, and then only to the extent provided in the Settlement Agreement, and without testimony or comment on the record from members of the public; or, in the alternative (c) to vacate its Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, And Setting First Annual Status Conference, and to enter an Order Entering the Settlement Agreement and Conditionally Dismissing Litigation, without providing for or scheduling any further status conferences; and
1

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 3 of 26
(d) to take such other measures as, in the judgment of this Court, will secure to the City of Portland the benefit of its bargain in the Settlement Agreement and in settlement of the prior appeal in this matter, in United States of America v. City of Portland, Ninth Circuit No. 14-35903.
In order to allow this Court to consider the City’s petition, the City further moves for an Order staying the District Court’s Order setting an interim status conference for Tuesday, January 31, 2017 (ER-300).
Finally, the City moves the Court, in its supervisory capacity, to direct the reassignment of this matter to a different District Judge on remand.
1. ISSUES PRESENTED This case involves a Settlement Agreement entered into between the United States of America and the City of Portland, Oregon, to resolve a claim made by the United States under 42 USC § 14141, and denied by the City of Portland, that the City, through its Portland Police Bureau, has a policy or practice of depriving persons suffering from mental illness, or perceived to be suffering from mental illness, of their federally protected Constitutional rights by subjecting such persons to excessive force. The issue is whether the District Court has abused its authority or committed legal error by exceeding the limited scope of its jurisdiction to
2

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 4 of 26
enforce the Settlement Agreement at the request of one or the other of the parties, has entangled itself inappropriately in the operation of a municipal police department, and has deprived the City of Portland of the benefit of its bargain with the United States.
2. STATEMENT OF THE FACTS In 2010, Aaron Campbell, an unarmed black man experiencing a mental health crisis, was shot and killed by a Portland Police Bureau (PPB) officer.1 In the aftermath of that tragedy, Portland’s then-Mayor Sam Adams and thenPolice Commissioner Dan Saltzman invited the United States Department of Justice (DOJ) to investigate the PPB and make recommendations for improvement of its policies and procedures. DOJ conducted a lengthy review of police use of force in Portland, and issued a report asserting that PPB had a policy or practice of unconstitutionally using excessive force on people who either were or were perceived to be mentally ill. The City of Portland denied, and continues to deny, that any such policy or practice existed or exists. But the
1 The City subsequently settled a civil rights action brought on behalf of Mr. Campbell’s estate, Estate of Aaron Campbell v. Ronald Frashour, et al., United States District Court (Oregon) No. 3:10-cv-01358-MO. The City also attempted, unsuccessfully, to fire the officer who shot Mr. Campbell. The City was held to have committed an unfair labor practice when it refused to implement an arbitrator’s award directing the officer’s reinstatement. Portland Police Association v. City of Portland, 275 Or. App. 700, 365 P.3d 1123 (2015).
3

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 5 of 26
City also was and is committed to improving both the performance and the perceived legitimacy of its Police Bureau. Desiring an outcome beneficial to all, and most importantly to the community PPB serves, the City embarked on extended negotiations with DOJ to agree on improvements that the City could implement to improve the interactions between the police and people with mental illness, to enhance transparency, and to build trust and legitimacy with the community.
The United States and the City of Portland reached a Settlement Agreement, after protracted negotiations, without the need for the United States to commence an action in court. The City agreed to make improvements in its police policies and practices, and to enhance public oversight, transparency and accountability for incidents involving use of force by Portland police. The quid pro quo for the City’s agreement was the agreement of the United States that the agreement would be effectuated and implemented by the parties, without the active involvement of the District Court. To that end, the parties agreed that the agreement would take the form of a Settlement Agreement, rather than a consent decree, that there would be no court-appointed monitor, and that the District Court would be involved only to the extent that either of the parties invoked the provisions of the Settlement Agreement dealing with breach (Settlement Agreement, ¶¶ 181-186).
4

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 6 of 26
The City’s insistence that these results be achieved through a Settlement Agreement between the City and the United States, rather than by a consent decree entered by the Court, was intentional. An essential feature of the Settlement Agreement, from the City’s point of view, was that the parties themselves would be responsible for its progress and enforcement. The DOJ agreed to this structure, so long as it could file, and then conditionally dismiss, a federal court action in order to ensure that the District Court would retain jurisdiction to enforce the Agreement under the specific circumstances set forth at paragraphs 181 through 186 of the Settlement Agreement. Short of invocation of that process by DOJ, however, the Settlement Agreement never was intended to involve the active, independent participation by the Court in its monitoring or implementation. As agreed by the parties, DOJ filed the action and moved to enter the Settlement Agreement and to dismiss the case.
Since the action was filed, the District Court has taken an escalating series of steps to enlarge the proceedings, to insinuate itself into and take control of the implementation of the Settlement Agreement, and, thus, fundamentally to alter the bargain struck by the parties. Before entering the Settlement Agreement, the District Court conducted a fairness hearing, allowed the Portland Police Association (the union representing the sworn, nonsupervisory, officers of the Portland Police Bureau) to intervene as a party, and
5

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 7 of 26
granted “enhanced amicus” status to the Albina Ministerial Alliance Coalition for Justice and Police Reform.
Following the fairness hearing, the District Court initially proposed to stay, rather than dismiss the action, to retain jurisdiction to enforce “any provision” of the Settlement Agreement, and to require periodic evidentiary hearings to assess the City’s compliance and to address the District Court’s concerns. The United States, the City and PPA conferred and proposed an alternative Order, which would have dismissed the action, while allowing the parties access to the District Court to enforce the Settlement Agreement and the Memorandum of Understanding between the City and PPA, would have clarified the termination and enforcement provisions of the Agreements, and would have created a mechanism for the person charged with assessing compliance with the Settlement Agreement (known as the “COCL,” an acronym for Compliance Officer and Community Liaison) to have provided information to the District Court.
The District Court rejected the parties’ proposed order, and entered its own Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Settlement-Compliance Hearing. (ER-78). That Order was the subject of the City’s appeal in United States of America v. City of Portland, Ninth Circuit No. 14-35903. On appeal, in mediation with
6

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 8 of 26
the assistance of Circuit Mediator Lisa Jaye and the Honorable Edward Leavy, Senior Circuit Judge, the parties negotiated an alternative Order, which provided only for annual status conferences to receive reports from the parties (including the intervenor and the “enhanced amicus”) and the COCL and the Community Oversight Advisory Board (another entity created pursuant to the Settlement Agreement). The City then dismissed its appeal, and, on remand, the District Court ultimately entered an Amended Order substantially similar to the one the parties had negotiated. (ER-83).
The first annual status conference, held on September 14, 2015, largely stayed within the bounds negotiated by the parties. However, the second annual status conference, held on October 25, 2016, and the District Court’s post-conference Order (ER-300), were a departure. The parties expected that the second status conference would be conducted in accordance with the Amended Order, as the First Annual Status Conference had been. Specifically, the parties expected that the Court would hear from the United States, the City, a member of the COAB and the COCL on “the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end and to respond to the Court’s questions on these issues;” would hear from “the United States, the City and the PPA. . . to describe to the Court the status of the MOA;” and
7

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would hear from “the United States, the City and the AMA . . . to describe to the Court the status of the CA and to respond to any questions by the Court….” Amended Order, ER-83.
To the City’s surprise, in addition to the anticipated reports from the parties, amicus, the COAB member and the COCL, the District Court invited all members of the public in attendance to speak, including an invitation by name to a party adverse to the City in another case recently before the District Court. The result was a series of commentaries from a collection of individuals (many of whom routinely disrupt City Council and COAB meetings) which included ad hominem attacks on the City’s elected officials and volunteers and racist and sexist comments directed toward the City’s lawyers. Rather than insist that members of the public be respectful and courteous, see Canon 3.A(3) of the Code of Conduct for United States Judges, the District Court simply thanked the persons who made the disparaging comments. See, e.g., Transcript at ER-249-252:2
2 In its post-conference Order, ER-300, the District Court did acknowledge that “the Court understands and appreciates the concerns expressed by the City regarding the content and tenor or tone of several of the comments voiced during the Second Annual Status Conference by some of the amici curiae. The Court will appropriately address these issues in open Court.”
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MR. DAVIS: * * * * * There is this Orwellian language change, like Judith Prosper,3 who used to work for former Haitian Dictator Aristide. * * * * * I think you should go back to Haiti and go join the dictatorship again or some other dictator because your dictatorship in Hales administration isn’t working out. * * * * * THE COURT: Mr. Davis. Thank you, sir. I appreciate that.
During the status conference, the District Court made numerous
suggestions, essentially inviting the United States to invoke the Settlement
Agreement’s breach provisions. See ER-116-17, 142, 152, 192-93, 217, 226.
In particular, the District Court appeared to be inviting the United States to
give it a “hammer,” ER-192-193:
THE COURT: * * * * * Under the settlement agreement, I don’t have a hammer yet. Under the settlement agreement, I do not have a hammer until the U. S. Department of Justice files a motion to enforce the settlement agreement, after going through the notice provision and the mediation provision.
* * * * * That filing a motion with me is the legal equivalent of handing me the hammer. I will exercise my authority with that hammer, in my opinion, judiciously, fairly, appropriately, and consistent with the Rule of Law. But I don’t have a hammer until it is handed to me, consistent with the settlement agreement.
3 Judith Prosper is a lawyer in the City Attorney’s Office, a native of New York, and of Afro-Haitian descent. At one point in her career, Ms. Prosper was employed by the Government of Haiti.
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Although the District Court called these “status conferences,” they are really nothing of the sort: they are public proceedings, held on the record in open court, at which the District Court has invited any person who wishes to do so to provide “comments” to the court as an “amicus curiae.”4 The latest such conference, held on October 25, 2016, lasted over six hours, went well into the evening —and featured presentations from 27 different people. (See ER-95, 106, 119, 130, 156, 170, 175, 180, 191, 196, 213, 216, 226, 230, 235, 238, 240, 243, 247, 248, 252, 254, 258, 260, 266, 269, 270).
Half of those 27 people were the District Court’s “amici curiae”—many of whom were the same people who routinely disrupt City meetings and engaged in the same sort of ad hominem attacks against the parties at the “status conference.” Typical of the type of “input” these people provide is the statement of Joe Walsh, ER-236:
MR. WALSH: Now, I draw a difference between “activist” and “advocates.” I think activists throw rocks. I am an activist. There are advocates. And you’ve heard from them today. They advocate for something special—police accountability.
4 As is explained below, the first reference to individual members of the public as amici curiae was after the October 25, 2016 proceeding, in the Order setting the “interim status conference” for January 31, 2017. ER-300
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Us activists are involved in everything. We just see the injustice, and we go after it.5
Following the October 25, 2016, status conference, the District Court
issued an Order, ER-300, which set an additional “interim status conference to
be held on Tuesday, January 31, 2017.” In response to the City’s objection to
participation in the hearings by members of the public (i.e., testimony or
comment from other than the United States, the City, COAB, COCL, PPA and
AMAC), the District Court, in its Order, said, “the Court has the inherent
authority to hear comments at a status conference from any amicus curiae that
the Court considers appropriate.”
5 Mr. Walsh was the adverse party in another action against the City decided by the Court, whom the Court invited to speak. ER-174, 215, 235-238. In that other action, Walsh v. Enge, Hales and City of Portland, United States District Court (Oregon), Case No. 3:15-cv-01666-SI, Mr. Walsh challenged a 60-day exclusion from Portland City Council meetings, issued because he had disrupted a July 8, 2015 City Council meeting as well as at least 4 prior City Council meetings in the preceding 16 months. Opinion and Order, Case 3:15cv-01666-SI, Document 29, filed 12/31/2015, at p. 2. The Opinion and Order is included as an Addendum (Add-1), along with the Excerpts of Record served and filed with this Petition. The District Court held there that “no matter how many meetings of a city council a person disrupts, he or she does not forfeit or lose the future ability to exercise constitutional rights and may not be prospectively barred from attending future meetings.” Id. The Court entered a permanent injunction to that effect, id. p. 28. Since that time, Mr. Walsh and others continue to routinely disrupt Portland City Council meetings.
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3. REASONS THE WRIT SHOULD ISSUE The Court should issue the writ because the District Court has exceeded its jurisdiction to enforce the settlement agreement, has excessively inserted itself into the management of a municipal police department, has fundamentally and unilaterally altered the Settlement Agreement entered into by the parties, and has deprived the City of the benefit of its bargain with the United States. In Bauman v. United States District Court, 557 F.2d 650 (9th Cir.1977), this Court established five guidelines to determine whether mandamus is appropriate in a given case: 1) whether the petitioner has no other means such as an appeal, to obtain the desired relief; 2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; 3) whether the district court order is clearly erroneous as a matter of law; 4) whether the district court’s order is an oft repeated error or manifests a persistent disregard of the federal rules; 5) whether the district court’s order raises new and important problems or issues of first impression.
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Satisfaction of all five factors is not required. See Valley Broadcasting Co. v. United States District Court, 798 F.2d 1289, 1292 n. 3 (9th Cir.1986). The factors serve as guidelines, a point of departure for the Court’s analysis of the propriety of mandamus relief. See In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th Cir.1982).
Here, the City invokes the supervisory authority of this Court, and the third Bauman factor requires only the showing of an ordinary error, and not clear error. Calderon v. United States Dist. Court, 134 F.3d 981, 984 (9th Cir. 1998), abrogated on other grounds as recognized by Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005). The question of the appropriate involvement of the District Court in effectuating the terms of a settlement agreement presents a “question[] of law of major importance to the administration of district courts.” Arizona v. United States Dist. Court (In re Cement Antitrust Litig.), 688 F.2d 1297, 1307 (9th Cir. 1982).
The District Court has only limited, ancillary jurisdiction to enforce the Settlement Agreement, because the underlying action has been dismissed. Enforcement of a settlement agreement “is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378 (1994). Where, as here, “the terms of the settlement [have] been made part of
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the order of dismissal, . . . a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would exist.” Id. at 381.
A “party seeking enforcement of the settlement agreement must allege a violation of the settlement agreement in order to establish ancillary jurisdiction.” Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1017 (9th Cir. 2007). Here, notwithstanding apparent invitations from the District Court to do so, the United States has not asserted that the City is in breach of the Settlement Agreement, nor has the United States invoked the remedies provisions of the Settlement Agreement. The District Court is without jurisdiction to conduct ongoing proceedings regarding the parties’ progress in effectuating their settlement.
The United States Supreme Court has cautioned that “recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the states’ criminal laws in the absence of irreparable injury which is both great and immediate.” City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983). Further, “federal courts must recognize ‘[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’” Id. quoting Stefanelli v. Minard, 342 U.S. 117,
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120 (1951). Principles of federalism sharply limit the District Court’s authority to supervise the functioning of the City of Portland’s police department. Rizzo v. Goode, 423 U.S. 362, 380 (1976). The District Court’s unilateral enlargement of its role in effectuating the settlement between the United States and the City of Portland, beyond the limits established in the parties’ Settlement Agreement, contravenes this firmly established law.
The District Court did not have jurisdiction to schedule additional status conferences under the “catchall” provision in the Amended Order (Docket Entry 99), that directs that “this civil action be placed on the Court’s inactive docket, other than for the annual status conferences referenced in this Order or otherwise as may be directed by the Court, and subject to recall to the active docket should the United States move to enforce the Settlement Agreement.” In agreeing to that provision, the parties did not intend to give the District Court the authority to schedule more than one Annual Status Conference per year. Certainly, it cannot be read as authorizing the District Court to further enlarge the number of participants in the process. Rather, that language was intended to give some flexibility, in the event a conference needed to be scheduled, or there was some reason, other than to hold a status conference, that the District Court would have to take some action while the case remained closed.
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To interpret that provision as broadly as the District Court is applying it would make a nullity of the entire agreement of the parties in resolving the prior appeal in this case.
Moreover, the parties could not, by agreement, confer jurisdiction on the District Court that it did not already have. In the absence of a claim of breach and a motion to enforce the Settlement Agreement, the District Court simply lacks jurisdiction to hold conferences or hearings in a dismissed case. Alvarado v. Table Mountain Rancheria, 509 F.3d at 1017.
“The court’s power to approve or reject a settlement does not permit it to modify the terms of a negotiated settlement” or to “rewrite agreements reached by the parties.” Jeff D. v. Andrus, 899 F.2d 753, 758 (9th Cir. 1989). Yet that is precisely what the District Court has done here, by enlarging the parties, by scheduling hearings and conferences other than as agreed by the parties, and by unilaterally, retroactively and without prior notice, recognizing as amici curiae all of the individuals the District Court improperly permitted to provide comment at the second annual status conference.
For these reasons, the District Court has committed error, and the third Bauman factor is present.
As to the first and second Bauman factors, the City of Portland has suffered harm, in that it has been deprived of the benefit of its bargain with the
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United States, and in the overreaching by the District Court into the management of the City’s Police Bureau. No appeal is available under 28 U.S.C. § 1291, because the Order setting the additional status conference is not a “final decision,” nor under 28 U.S.C. § 1292, because the Order is not an interlocutory order relating to an injunction, relating to a receiver, or relating to admiralty. Moreover, the City’s concern is not only with the particular Order entered by the District Court, but with the District Court’s pattern of escalating and enlarging the proceeding to involve itself excessively in the effectuation of the Settlement Agreement. Even if an appeal from the discrete Order were available, it could not correct the damage or harm the City already has suffered and that, absent action by this Court, it will suffer in the future.
The fourth and fifth Bauman factors also are present, because the District Court has manifested a persistent disregard of the limitations of its own role under the Settlement Agreement, and under the principles of federalism— including the limited jurisdiction of the federal courts and the reticence with which they should inject themselves into the management of local police departments—and because the appropriate scope of the authority of District Courts in the implementation of settlement agreements is an important question of law. See Portillo v. United States Dist. Court, 15 F.3d 819, 822 (9th Cir.
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1994) (observing that presentence urine testing raised an issue of first impression and that routine testing “will constitute an oft-repeated error”).
4. THIS COURT SHOULD STAY THE JANUARY 31, 2017 HEARING
Because of the seriousness of the issue presented, in order to allow this Court to consider fully the City’s petition, this Court should stay further proceedings in the District Court, including the District Court’s Order setting an interim status conference for Tuesday, January 31, 2017 (Docket Entry 140). Portillo v. U.S. District Court, 15 F.3d 819, 821 (“we stayed the district court’s order pending resolution of the petition for a writ of mandamus”); Mortgages, Inc. v. United States District Court, 934 F.2d 209, 211 (9th Cir. 1991) (“We granted the stay and ordered a response to the petition” for writ of mandamus); Armster v. U.S. District Court, 792 F.2d 1423, 1431 (9th Cir. 1986) (This Court issued a stay pending disposition of the petition for writ of mandamus); Campbell v. United States District Court, 501 F.2d 196, 200 (9th Cir. 1974) (Panel granted stay included in petition for writ of mandamus).
5. THE CASE SHOULD BE REASSIGNED This Court will order a case reassigned to a different district judge, under its supervisory powers, in unusual circumstances, “‘such as when the district court has exhibited personal bias or when reassignment is advisable to maintain
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the appearance of justice.’” U.S. v. Estate of Hage, 810 F.3d 712, 722 (9th Cir. 2016). In determining whether to order reassignment, this Court looks “to three factors: (1) whether the original judge could ‘reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected,’ (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would ‘entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.’” Nozzi v. Housing Authority of City of Los Angeles, 806 F.3d 1178 (9th Cir. 2015), quoting Krechman v. County of Riverside, 723 F.3d 1104, 1111-12 (9th Cir. 2013).
This case demonstrates the presence of the two factors militating for reassignment, and the absence of the one militating against it. The District Court’s course of proceedings indicates that the judge currently assigned the matter would have “substantial difficulty” in limiting his involvement in the effectuation of the parties’ settlement agreement. Reassignment is necessary to preserve the appearance of fairness, because a reasonable person in the City’s position might legitimately question whether the City is getting fair treatment in this matter. Reassignment will not involve waste or duplication, because, in the absence of invocation of the breach provisions of the Settlement
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Agreement, there is nothing that the District Court will be required to do on remand.
Given the history of this case, the interests of justice would be served best by reassignment to a different district judge on remand.
6. CONCLUSION The District Court has committed error, which has damaged the City of Portland in a manner that cannot be repaired in the course of an appeal. The District Court has exceeded its jurisdiction, has excessively inserted itself into the management of a municipal police department, has fundamentally and unilaterally altered the Settlement Agreement entered into by the parties, and has deprived the City of the benefit of its bargain with the United States. This Court should correct course by issuing a writ of mandamus to require the District Court to restore the parties to the position for which they bargained, namely to enter the settlement agreement without further involvement by the District Court absent the invocation of the breach provisions of the Settlement Agreement. Although the City questions the jurisdiction of the District Court to hold them, in order to resolve its prior appeal of that issue, the City agreed to participate in one annual status conference and remains willing to do so, so long as it is limited to reports from
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the United States, the City, the COCL, the COAB, the PPA and the AMAC, and does not involve public testimony or public comment.
Respectfully submitted, /s/ Tracy Reeve
Tracy Reeve, OSB #891123 City Attorney Of Attorneys for Petitioner City of Portland
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1 STATEMENT OF RELATED CASES The City of Portland is aware of no other related cases in this Court. DATED: December 9, 2016.
Respectfully submitted, /s/ Tracy Reeve Tracy Reeve, OSB #891123 City Attorney Of Attorneys for Petitioner City of Portland
1

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CERTIFICATE OF FILING AND SERVICE
I certify that on December 9, 2016, I filed the original PETITION FOR
WRIT OF MANDAMUS with the Clerk of the United States Court of Appeals
at this address:
OFFICE OF THE CLERK JAMES R. BROWNING COURTHOUSE UNITED STATES COURT OF APPEALS P.O. BOX 193939 SAN FRANCISCO, CA 94119
by electronically filing in the Appellate CaseManagement/Electronic Case Files
(CM/ECF) system on said day.
I further certify that on December 9, 2016, I served a true and correct
copy of the foregoing PETITION FOR WRIT OF MANDAMUS on:
HONORABLE MICHAEL H. SIMON UNITED STATES DISTRICT COURT JUDGE MARK O. HATFIELD UNITED STATES COURTHOUSE COURTROOM 13B 1000 SW THIRD AVENUE PORTLAND, OR 97204
BILLY J. WILLIAMS, OSB# 90136 UNITED STATES ATTORNEY ADRIAN BROWN L. BROWN, OSB# 05020 ASSISTANT UNITED STATES ATTORNEY UNITED STATES ATTORNEY’S OFFICE DISTRICT OF OREGON 1000 SW THIRD AVENUE, SUITE 600 PORTLAND, OR 97204

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STEVEN H. ROSENBAUM, CHIEF LAURA L. COON, SPECIAL COUNSEL R. JONAS GEISSLER, SR. TRIAL ATTORNEY BRIAN D. BUEHLER, TRIAL ATTORNEY SETH WAYNE, TRIAL ATTORNEY UNITED STATES DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION SPECIAL LITIGATION SECTION 950 PENNSYLVANIA AVENUE, NW WASHINGTON, DC 20530
Attorneys for Respondent
ANIL S. KARIA, OSB# 90136 PUBLIC SAFETY LABOR GROUP 3021 NE BROADWAY PORTLAND, OR 97232
Attorney for Respondents-Real Parties in Interest Portland Police Association
KRISTEN A. CHAMBERS KIRKLIN THOMPSON & POPE, LLP 1000 SW BROADWAY, SUITE 1616 PORTLAND, OR 97205
SHAUNA M. CURPHEY CURPHEY & BADGER, PA 520 SW SIXTH AVENUE, SUITE 1040 PORTLAND, OR 97204
JESSICA ASHLEE ALBIES CREIGHTON & ROSE, PC POWERS BUILDING 65 SW YAMHILL STREET, SUITE 300 PORTLAND, OR 97204
Attorneys for Respondents-Real Parties in Interest Albina Ministerial Alliance Coalition for Justice and Police Reform

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by mailing in a sealed envelope, with postage paid and deposited with the U.S. Postal Service in Portland, Oregon to the last known address of said judge and attorneys on said day.
/s/ Tracy Reeve Tracy Reeve, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov Attorney for Petitioner

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Case No. ________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
IN RE CITY OF PORTLAND,
Petitioner, v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON,
Respondent, and
UNITED STATES OF AMERICA, PORTLAND POLICE ASSOCIATION, and ALBINA MINISTERIAL ALLIANCE COALITION
FOR JUSTICE AND POLICE REFORM,
Respondents-Real Parties in Interest.
From the United States District Court For the District of Oregon, Portland Division,
The Hon. Michael H. Simon Case No. 3:12-cv-02265-SI
PETITIONER CITY OF PORTLAND’S EXCERPTS OF RECORD AND ADDENDUM
VOLUME I
Tracy Reeve, OSB# 891123 City Attorney Office of City Attorney 1221 SW Fourth Avenue, Suite 430 Portland, OR 97204 Telephone No.: (503) 823-4047 Facsimile No.: (503) 823-3089 E-Mail: tracy.reeve@portlandoregon.gov
Attorney for Petitioner

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INDEX OF EXCERPTS OF RECORD
Settlement Agreement Pursuant to F.R.C.P. 41(a)(2) (Oregon USDC Docket No. 4.1, December 17, 2012) ................................. ER-1
Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Settlement-Compliance Hearing (Oregon USDC Docket No. 86, August 28, 2014) ..................................... ER-78
Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Hearing (Oregon USDC Docket No. 99, July 30, 2015).......................................... ER-83
Transcript of Proceedings October 25, 2016 Status Conference Dennis W. Apodaca, Official Court Reporter (Certified on November 5, 2016)................................................................ ER-89
Defendant City of Portland’s Post Status Conference Memorandum (Oregon USDC Docket No. 138, November 3, 2016).............................. ER-287
Declaration of Tracy Reeve (Oregon USDC Docket No. 139, November 3, 2016).............................. ER-296
Exhibit A to Declaration of Tracy Reeve Mayor, City Council and City Auditor Letter to Judge Simon November 3, 2016 (Oregon USDC Docket No. 139.1, November 3, 2016) .......................... ER-298

Case 3:12-cv-02265-SI Document 4-1 Filed 12/17/12 Page 1 of 77 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-2, Page 3 of 301
S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian. brown@usdo j. gov BILLY J. WILLIAMS, OSB # 90136 Bill. Williams({J)usdoj.gov Assistant United States Attorneys United States Attorney's Office District of Oregon I000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
THOMAS E. PEREZ Assistant Attorney General JONATHAN M. SMITH Chief LAURA COON Special Counsel R. JONAS GEISSLER jonas.geissler@usdoj .gov MICHELLE JONES michelle.jones2@usdoj.gov Senior Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 50 Pennsylvania Ave., NW Washington, D.C. 20530 Telephone: (202) 514-6255 Facsimile: (202) 514-4883
Attorneys for Plaintiff, United States

ER-1

Page 1 -Attachment 1

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ER-2

TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 3 I. GENERAL PROVISIONS ............................................................................................... 5 II. DEFINITIONS .................................................................................................................. 7 III. USE OF FORCE ............................................................................................................. 16
A. Use of Force Policy............................................................................................... 17 B. Compliance Audits Related to Use of Force......................................................... 22 IV. TRAINING ...................................................................................................................... 28 V. COMMUNITY-BASED MENTAL HEALTH SERVICES........................................ 32 VI. CRISIS INTERVENTION ............................................................................................. 35 A. Addictions and Behavioral Health Unit and Advisory Committee ...................... 36 B. Continuation of C-I Program ................................................................................ 37 C. Establishing “Memphis Model” Crisis Intervention Team................................... 38 D. Mobile Crisis Prevention Team ............................................................................ 40 E. Service Coordination Team .................................................................................. 41 F. BOEC .................................................................................................................... 41 VII. EMPLOYEE INFORMATION SYSTEM ................................................................... 41 VIII. OFFICER ACCOUNTABILITY .................................................................................. 43 A. Investigation Timeframe ....................................................................................... 43 B. On Scene Public Safety Statements and Interviews ............................................. 44 C. Conduct of IA Investigations ................................................................................ 45 D. CRC Appeals ........................................................................................................ 49 E. Discipline .............................................................................................................. 49 F. Communication with Complainant and Transparency ......................................... 50 IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD ............................................................................ 50 X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT ............................... 59

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UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI
SETTLEMENT AGREEMENT PURSUANT TO FED. R. CIV. P. 41(a)(2)

INTRODUCTION The United States and the City of Portland (“City”) (collectively “the Parties”) recognize that the vast majority of the City’s police officers are honorable law enforcement professionals who risk their physical safety and well-being for the public good. The Parties enter into this Agreement with the goal of ensuring that the Portland Police Bureau (“PPB”) delivers police services to the people of Portland in a manner that effectively supports officer and public safety, and complies with the Constitution and laws of the United States. Specifically, this Agreement is targeted to strengthen initiatives already begun by PPB to ensure that encounters between police and persons with perceived or actual mental illness, or experiencing a mental health crisis, do not result in unnecessary or excessive force. The Parties recognize there has been an accelerating movement toward a model of police management that relies on both existing and still-developing management and

ER-3

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monitoring tools and systems. This model requires both vision and fiscal commitment, and is necessary to legitimate policing. The United States recognizes that PPB has endeavored to adopt components of modern management despite being a lean organization, and greatly appreciates the City’s commitment, in this agreement, to provide PPB the fiscal support necessary to rapidly and fully implement a complete stateof-the-art management and accountability system. The Parties further recognize that the ability of police officers to protect themselves and the community they serve is largely dependent on the quality of the relationship they have with that community. Public and officer safety, constitutional policing, and the community’s trust in its police force are, thus, interdependent. The full and sustained implementation of this Agreement is intended to protect the constitutional rights of all members of the community, continuously improve the safety and security of the people of Portland, keep PPB employees safe, and increase public confidence in PPB, all in a cost-effective, timely, and collaborative manner. The United States commends the City for the steps it already has taken to implement measures to effectuate these goals.
To fully achieve these goals, this Agreement requires the City and PPB to further revise or, where needed, adopt new policies, training, supervision, and practices in the following areas: the use of force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement.
This Agreement further requires that the City and PPB put in place more effective systems of oversight and self-correction that will identify and correct problems before

ER-4

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they develop into patterns or practices of unconstitutional conduct and/or erode

community trust.

This Agreement further identifies measures, to be met within fixed periods of

time, that will assist the Parties and the community in determining whether: (1) the City

has changed its procedures and taken the actions listed in this agreement; (2) community

trust in PPB has increased; and (3) the improvements will be sustainable.

For these reasons, and noting the general principle that settlements are to be

encouraged, particularly settlements between government entities, the Parties agree to

implement this Agreement under the following terms and conditions.

I.

GENERAL PROVISIONS

1.

The United States has filed a complaint in the Federal District Court for

the District of Oregon in Portland, Oregon asserting that the City has engaged in a pattern

and practice of constitutional violations pursuant to the authority granted to United States

Department of Justice (“DOJ”) under 42 U.S.C. § 14141 to seek declaratory or equitable

relief to remedy a pattern or practice of conduct by law enforcement officers that deprives

individuals of rights, privileges, or immunities secured by the Constitution or federal law.

The City expressly denies that the allegations of the complaint are true.

2.

The Parties agree that nothing in this Agreement shall be construed as an

admission of wrongdoing by the City or evidence of liability under any federal, state, or

municipal law. Upon execution of this Agreement by both Parties, the United States

agrees to conditionally dismiss the complaint it filed with prejudice, subject to the Court

retaining jurisdiction to enforce the Agreement, followed by final dismissal with

prejudice upon performance of this Agreement.

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3.

This Agreement shall constitute the entire integrated agreement of the

Parties. No prior drafts or prior or contemporaneous communications, oral or written,

shall be relevant or admissible for purposes of determining the meaning of any provisions

herein in any litigation or any other proceeding. If, in the course of interpreting this

Agreement, there is an ambiguity that cannot be resolved by the Parties or in mediation,

evidence including the Parties’ course of dealing and parol evidence may be used.

4.

This Agreement is binding upon all Parties hereto, by and through their

officials, agents, employees, and successors. If the City establishes or reorganizes a

government agency or entity whose function includes overseeing, regulating, accrediting,

investigating, or otherwise reviewing the operations of PPB or any aspect thereof, the

City agrees to ensure these functions and entities are consistent with the terms of this

Agreement and shall incorporate the terms of this Agreement into the oversight,

regulatory, accreditation, investigation, or review functions of the government agency or

entity as necessary to ensure consistency.

5.

This Agreement is enforceable only by the Parties. No person or entity is,

or is intended to be, a third-party beneficiary of the provisions of this Agreement for

purposes of any civil, criminal, or administrative action, and accordingly, no person or

entity may assert any claim or right as a beneficiary or protected class under this

Agreement. The Parties agree to defend the terms of this Agreement should they be

challenged in this or any other forum.

6.

This Agreement is not intended to impair or expand the right of any

person or organization seeking relief against the City, PPB, or any officer or employee

thereof, for their conduct or the conduct of PPB officers; accordingly, it does not alter

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legal standards governing any such claims by third parties, including those arising from

city, state, or federal law. This Agreement does not expand, nor will it be construed to

expand access to any City, PPB, or DOJ document, except as expressly provided by this

Agreement, by persons or entities other than DOJ, the City, and PPB. All federal and

state laws governing the confidentiality or public access to such documents are

unaffected by the terms of this Agreement.

7.

The City shall be responsible for providing necessary support and

resources to enable PPB to fulfill its obligations under this Agreement. The

improvements outlined in this Agreement will require the dedication of additional funds

and personnel.

8.

The purpose of this Agreement is to ensure that the City and PPB, by and

through their officials, agents, employees, and successors, undertake the actions required

by the Agreement, which in turn will resolve the concerns expressed by the United States

in its complaint. The United States greatly appreciates the effort and expertise the current

PPB leadership team has contributed to the investigation, agreement, and ongoing reform

processes. The United States feels that continuity of management and effort is essential

for timely compliance with the terms of this Agreement.

II.

DEFINITIONS

Unless otherwise noted, the following terms and definitions shall apply to this

Agreement:

9.

“Chief” means the Chief of Police of the Portland Police Bureau or his or

her authorized designee.

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10. “City” means the City of Portland, including its agents, officers, and

employees in their official capacity.

11.

“C-I-Team” stands for Crisis Intervention Team.

12. “C-I-Training” stands for Crisis Intervention Training, which is training

on how to respond to persons in behavioral or mental health crisis, including persons

under the influence of drugs or alcohol. Officers who receive such training are “C-I-

Trained.”

13. “City Auditor” is the City Auditor, whose duties regarding independent

police oversight are governed by Portland City Code Chapter 3.21.

14. “COCL” refers to the Compliance Officer Community Liaison, discussed

in detail in Section X.

15. “Complainant” means any person, including a PPB officer or employee,

who makes a complaint against PPB or a sworn officer.

16. “Complaint” means any complaint made to the City by a member of the

public, a PPB officer, or a civilian PPB employee of alleged misconduct by a sworn PPB

employee.

17. Computer-Assisted Dispatch (“CAD”) is a computerized method of

dispatching police officers on a service call. It can also be used to send messages to the

dispatcher and store and retrieve data (i.e., radio logs, field interviews, schedules, etc.).

PPB Manual 612.00.

18. “CRC” is the Citizen Review Committee, whose duties are governed by

Portland City Code Section 3.21.080.

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19. “Critical firearm discharge” means each discharge of a firearm by a PPB officer. This term includes discharges at persons where no one is struck. This term is not intended to include discharges at the range or in training or negligent discharges not intended as an application of force, which are still subject to administrative investigation.
20. “Day” means a calendar day. 21. “Demographic category” means to the extent such information is currently collected by PPB, age, race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, source of income, or gender identity. 22. “Discipline” means a personnel action for violation of an established law, regulation, rule, or PPB policy, including written reprimand, suspension, demotion, or dismissal. 23. “DOJ” refers jointly to the Civil Rights Division of the United States Department of Justice and the United States Attorney’s Office for the District of Oregon. 24. “ECW” means Electronic Control Weapon, a weapon, including Tasers, designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and overrides the subject’s voluntary motor responses. 25. “ECW application” means the contact and delivery of electrical impulse to a subject with an ECW. 26. “Effective Date” means the date this Agreement is entered by the Court. 27. “EIS” means the Employee Information System as provided in PPB Manual 345.00. 28. “Ensure” means that the City and PPB are using objectively good faith efforts to achieve the outcome desired.

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29. “Exigent circumstances” means circumstances in which a reasonable

person would believe that imminent and serious bodily harm to a person or persons is

about to occur.

30. “Firearm” is any instrument capable of discharging ammunition as defined

in PPB Manual 1020.00.

31. “Force” means any physical coercion used to effect, influence or persuade

an individual to comply with an order from an officer. The term shall not include the

ordinary handcuffing of an individual who does not resist.

32. “IA” means the Internal Affairs unit of PPB’s Professional Standards

Division (“PSD”).

33.

“Implement” or “implementation” means the development or putting into

place of a policy or procedure, including the appropriate training of all relevant

personnel, and the consistent and verified performance of that policy or procedure in

actual practice through the regular use of audit tools.

34. “Including” means “including, but not limited to.”

35. “Inspector” is a command position in the PSD responsible for reviewing

all uses of force and making recommendations regarding improvements to systems of

accountability in relation to force management.

36. “IPR” means the Independent Police Review Division, an independent,

impartial office, readily available to the public, responsible to the City Auditor,

empowered to act on complaints against sworn PPB members for alleged misconduct,

and recommend appropriate changes of PPB policies and procedures toward the goals of

safeguarding the rights of persons and of promoting higher standards of competency,

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efficiency, and justice in the provision of community policing services, governed by Portland City Code Chapter 3.21.
37. “Less-lethal” force means a force application that is not intended or expected to cause death or serious injury and that is commonly understood to have less potential for causing death or serious injury than conventional, more lethal police tactics. Nonetheless, use of less-lethal force can result in death or serious injury.
38. “Lethal force” means any use of force likely to cause death or serious physical injury, including the use of a firearm, carotid neck hold, or strike to the head, neck, or throat with a hard object.
39. “Line Investigation” or “Directive 940.00 Investigation” means the use of force investigation conducted pursuant to PPB Directive 940.00.
40. “Mental Health Crisis” means an incident in which someone with an actual or perceived mental illness is experiencing intense feelings of personal distress (e.g., anxiety, depression, anger, fear, panic, hopelessness), obvious changes in functioning (e.g., neglect of personal hygiene, unusual behavior) and/or catastrophic life events (e.g., disruptions in personal relationships, support systems or living arrangements; loss of autonomy or parental rights; victimization or natural disasters), which may, but not necessarily, result in an upward trajectory of intensity culminating in thoughts or acts that are dangerous to self and/or others.
41. “Mental Illness” is a medical condition that disrupts an individual’s thinking, perception, mood, and/or ability to relate to others such that daily functioning and coping with the ordinary demands of life are diminished. Mental illness includes, but is not limited to, serious mental illnesses such as major depression, schizophrenia, bipolar

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disorder, obsessive compulsive disorder (“OCD”), panic disorder, posttraumatic stress

disorder (“PTSD”), and borderline personality disorder. Mental illness includes

individuals with dual diagnosis of mental illness and another condition, such as drug

and/or alcohol addiction.

42. “Misconduct” means conduct by a sworn officer that violates PPB

regulations or orders, or other standards of conduct required of City employees.

43. “Misconduct complaint” means any allegation of improper conduct by a

sworn officer, whether the complaint alleges corruption or other criminal misconduct; a

violation of law; or a violation of PPB policy, procedure, regulations, orders, or other

standards of conduct required of City employees including, but not limited to, the

improper use of force. This definition is not intended to create a right of appeal to the

CRC for lethal force or in-custody death cases.

44. “Mobile Crisis Prevention Team” (formerly Mobile Crisis Unit) means the

team of a PPB patrol officer and mental health case worker who are specifically detailed

to conduct outreach and response to persons with known mental illness or experiencing

an actual or perceived mental health crisis, with the goal of intervening with individuals

before a crisis exists and to link the individual with community mental health services.

45.

“Non-disciplinary corrective action” refers to action other than discipline

taken by a PPB supervisor to enable or encourage an officer to improve his or her

performance.

46. “Passive resistance” means non-compliance with officer commands that is

non-violent and does not pose an immediate threat to the officer or the public.

47. “Personnel” means PPB officers and employees.

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48. “Police officer” or “officer” means any law enforcement agent employed

by or volunteering for PPB, including supervisors, reserve officers, and cadets.

49. Police Review Board (“PRB”) is an advisory body to the Chief governed

by Portland City Code § 3.20.140. The PRB makes recommendations as to findings and

proposed officer discipline to the Chief.

50. “Policies and procedures” means regulations or directives, regardless of

the name, describing the duties, functions, and obligations of PPB officers and/or

employees, and providing specific direction in how to fulfill those duties, functions, or

obligations.

51. “PPB Manual” refers to PPB’s Policy and Procedure Manual, revised

January 2009, and includes the most current edition and supplements thereto.

52. “PPB unit” or “unit” means any designated organization of officers within

PPB, including precincts and specialized units.

53. Portland Police Data System (“PPDS”) is PPB’s records management

system that integrates officers’ access to other agency systems such as LEDS, NCIC/III,

DMV, DA-Crimes, ESWIS and OJIN. See, e.g., PPB Manual 1226.00.

54.

“Precinct” refers to one of the service areas of PPB, which together cover

the entire geographic area of the City of Portland. Each precinct is led by a precinct

commander.

55. “Probable cause” means that there is a substantial objective basis for

believing that, more likely than not, an offense has been committed and a person to be

arrested has committed it.

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56. “PSD” means the Professional Standards Division, the PPB unit charged with, among other tasks, conducting or overseeing all internal and administrative investigations of PPB officers, agents, and employees arising from complaints, whose current duties are governed by PPB Manual 330.00.
57. “Qualified Mental Health Professional” means an individual who has, at a minimum, a masters-level education and training in psychiatry, psychology, counseling, social work, or psychiatric nursing, and is currently licensed by the State of Oregon to deliver those mental health services he or she has undertaken to provide.
58. “Serious Use of Force” means: (1) all uses of force by a PPB officer that reasonably appear to create or do create a substantial risk of death, serious disfigurement, disability, or impairment of the functioning of any body part or organ; (2) all critical firearm discharges by a PPB officer; (3) all uses of force by a PPB officer resulting in a significant injury, including a broken bone, an injury requiring hospitalization, or an injury deemed to be serious by an officer’s supervisor; (4) all head, neck, and throat strikes with an object or carotid neck holds; (5) force used upon juveniles known or reasonably assumed to be under 15 and females known or reasonably assumed to be pregnant; (6) all uses of force by a PPB officer resulting in a loss of consciousness; (7) more than two applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, regardless of whether the applications are by the same or different officers, and regardless of whether the ECW application is longer than 15 seconds, whether continuous or consecutive; (8) any strike, blow, kick, ECW application, or similar use of force against a handcuffed, otherwise

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restrained, under control, or in custody subject with or without injury; and (9) any use of

force referred by an officer’s supervisor to IA that IA deems serious.

59. “Shall” means a mandatory duty.

60.

“Supervisor” means a sworn PPB employee at the rank of sergeant or

above (or anyone acting in those capacities) and non-sworn personnel with oversight

responsibility for other officers.

61. “Supported by evidence” means the standard of proof applied in CRC

appeals pursuant to Portland City Code Section 3.21.160. A finding regarding a

complaint is “supported by the evidence” when a reasonable person could make the

finding regarding a complaint in light of the evidence, whether or not the reviewing body

agrees with the finding. The CRC decides whether the recommended finding is

supported by the evidence using a reasonable person standard, that is, the CRC decides

whether City decision makers could have reached the conclusion they reached based on

the evidence developed by the investigation.

62. “Training” means any adult-learning methods that incorporate role-

playing scenarios and interactive exercises that instruct officers about how to exercise

their discretion at an administrative level, as well as traditional lecture formats. Training

also includes testing and/or writings that indicate that the officer comprehends the

material taught.

63. “Use of Force” means any physical coercion used to effect, influence, or

persuade an individual to comply with an order from an officer, above unresisted

handcuffing, including actively pointing a firearm at a person.

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64. “Use of force that could result in criminal charges” means that use of force

that a reasonable and trained supervisor could conclude would result in criminal charges

due to the apparent circumstances, such as: (a) the level of force used as compared to the

offense committed or resistance encountered; (b) material discrepancies between the

force actually used and the use of force as described by the officer; or (c) the nature of the

injuries.

65. “Welfare Check” means a response by PPB to a call for service that is

unrelated to an allegation of criminal conduct, but is instead to determine whether a

person requires assistance for a medical or mental health crisis.

III.

USE OF FORCE

PPB shall revise its existing use of force policy and force reporting requirements

to ensure that all force, particularly force involving persons with actual or perceived

mental illness: (a) is used only in accordance with the Constitution and laws of the

United States; (b) is no greater than necessary to accomplish a lawful objective; (c) is

properly documented, reported, and accounted for; and (d) is properly investigated,

reviewed, evaluated, and, if necessary, remedied. PPB shall attempt to avoid or minimize

the use of force against individuals in perceived behavioral or mental health crisis, or

those with mental illness and direct such individuals to the appropriate services where

possible. In addition, PPB shall ensure that officers use non-force and verbal techniques

to effect compliance with police orders whenever feasible, especially in the course of

conducting welfare checks or effecting arrests for minor offenses or for persons whom

officers have reason to believe are experiencing a mental health crisis; de-escalate the use

of force at the earliest possible moment; only resort to those use of force weapons,

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including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function. To achieve these outcomes, PPB shall implement the requirements set out below. A. Use of Force Policy
66. PPB shall maintain the following principles in its existing use of force policies:
a. PPB shall use only the force reasonably necessary under the totality of circumstances to lawfully perform its duties and to resolve confrontations effectively and safely; and
b. PPB expects officers to develop and display, over the course of their practice of law enforcement, the skills and abilities that allow them to regularly resolve confrontations without resorting to force or the least amount of appropriate force.
67. PPB shall add to its use of force policy and procedures the following use of force principles:
a. Officers shall use disengagement and de-escalation techniques, when possible, and/or call in specialized units when practical, in order to reduce the need for force and increase officer and civilian safety;
b. In determining whether to use force, officers will take into account all information, when feasible, including behavior, reports, and

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known history as conveyed to or learned by the officer by any means, indicating that a person has, or is perceived to have, mental illness; c. The use of force shall be de-escalated as resistance decreases and the amount of force used, including the number of officers who use force, shall de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force; and d. Objectively unreasonable uses of force shall result in corrective action and/or discipline, up to and including termination. 1. Electronic Control Weapons 68. PPB shall revise PPB Directive 1051.00 regarding Taser, Less-Lethal Weapon System to include the following principles: a. Prohibition against the use of ECWs for pain compliance against those suffering from mental illness or emotional crisis except in exigent circumstances, and then only to avoid the use of a higher level of force; b. Unless it would present a danger to the officer or others, that officers shall issue a verbal warning, or attempt to utilize hand signals where there is a language barrier or the subject is hearing impaired, prior to deploying their ECW; c. Officers shall follow protocols developed by PPB in conjunction with medical professionals on their responsibilities following ECW use;

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d. Only one ECW at a time may be used on a subject, intentionally,

except where lethal force would be permitted;

e. After one standard ECW cycle (5 seconds), the officer shall

reevaluate the situation to determine if subsequent cycles are

necessary, including waiting for a reasonable amount of time to

allow the subject to comply with the warning. Officers shall

describe and explain the reasonableness of each ECW cycle in

their use of force reports;

f. Officers shall make every reasonable effort to attempt handcuffing

during and between each ECW cycle. Officers should avoid

deployments of more than three ECW cycles unless exigent

circumstances warrant use;

g. ECWs shall not be used on handcuffed or otherwise restrained

persons, unless doing so is necessary to prevent them from causing

serious physical injury to themselves or others, or if lesser attempts

of control have been ineffective and/or to avoid greater application

of use of force; and

h. Officers receive annual ECW in service training including

proficiency and policy changes, if any.

2. Use of Force Reporting Policy and Use of Force Report

69.

PPB shall revise its policies related to use of force reporting, as necessary,

to require that:

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a. All PPB officers that use force, including supervisory officers, draft timely use of force reports that include sufficient information to facilitate a thorough review of the incident in question by supervisory officers; and
b. All officers involved or witnesses to a use of force provide a full and candid account to supervisors.
3. Use of Force Supervisory Investigations and Reports 70. PPB shall continue enforcement of Directive 940.00, which requires supervisors who receive notification of a force event to respond to the scene, conduct an administrative review and investigation of the use of force, document their findings in an After Action Report and forward their report through the chain of command. PPB shall revise Directive 940.00 to further require that supervisory officers:
a. Complete After Action Reports within 72 hours of the force event; b. Immediately notify his or her shift supervisor and PSD regarding
all officer’s Serious Use of Force, any Use of Force against persons who have actual or perceived mental illness, or any suspected misconduct. Where the supervisor suspects possible criminal conduct, the supervisor shall notify the PPB Detective Division. Where there is no misconduct, supervisors also shall determine whether additional training or counseling is warranted. PPB shall then provide such counseling or training consistent with this Agreement;

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c. Where necessary, ensure that the subject receives medical attention from an appropriate medical provider; and
d. Interview officers individually and not in groups. 71. PPB shall maintain adequate patrol supervision staffing, which at a minimum, means that PPB and the City shall maintain its current sergeant staffing level, including the September 2012 addition of 15 sergeants. 72. PPB shall develop a supervisor investigation checklist to ensure that supervisors carry out these force investigation responsibilities. PPB shall review and revise the adequacy of this checklist regularly, at least annually. 73. PPB shall revise its policies concerning chain of command reviews of After Action Reports, as necessary, to require that:
a. EIS tracks all Directive 940.00 comments, findings and corrections;
b. All supervisors in the chain of command are subject to and receive corrective action or discipline for the accuracy and completeness of After Action Reports completed by supervisors under their command;
c. All supervisors in the chain of command are accountable for inadequate reports and analysis;
d. A supervisor receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position when he or she repeatedly conducts deficient investigations. Where a shift commander, or precinct commander, repeatedly

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permits deficient investigations, the shift commander, or precinct commander, receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position; e. When, after investigation, a use of force is found to be out of policy, PPB shall take appropriate corrective action consistent with the Accountability provisions of this Agreement; f. Where the use of force indicates policy, training, tactical, or equipment concerns, the immediate supervisor shall notify the Inspector and the Chief, who shall ensure that PPB timely conducts necessary training and that PPB timely resolves policy, tactical, or equipment concerns; and g. The Chief or designee, as well as PSD, has discretion to re-assign a use of force investigation to the Detective Division or any PPB supervisor. B. Compliance Audits Related to Use of Force 74. In consultation with the COCL, the Inspector, as part of PPB’s quarterly review of force, will audit force reports and Directive 940.00 Investigation Reports to ensure that: a. With respect to use of force generally: i. reports describe the mental health information available to officers and the role of that information in their decision making; ii. officers do not use force against people who engage in passive resistance that does not impede a lawful objective;

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iii. when resistance decreases, officers de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force;
iv. officers call in specialty units in accordance with procedure; v. officers routinely procure medical care at the earliest available
opportunity when a subject is injured during a force event; and vi. officers consistently choose options reasonably calculated to
establish or maintain control with the least amount of appropriate force. b. With respect to ECW usages: i. ECW deployment data and Directive 940.00 reports are consistent, as determined by random and directed audits. Discrepancies within the audit should be appropriately investigated and addressed; ii. officers evaluate the reasonableness and need for each ECW cycle and justify each cycle; when this standard is not met, this agreement requires supervisor correction; iii. officers are universally diligent in attempting to use hands-on control when practical during ECW cycles rather than waiting for compliance; and iv. officers do not attempt to use ECW to achieve pain compliance against subjects who are unable to respond rationally unless doing

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so is reasonably calculated to prevent the use of a higher level of force. c. With respect to use of force reporting, the reports: i. are completed as soon as possible after the force incident occurs, but no later than the timeframes required in policy; ii. include a detailed description of the unique characteristics of the event, using common everyday language, sufficient to allow supervisors to accurately evaluate the quality of the officer’s decision making and performance; iii. include a decision point description of the force decision making; iv. include a detailed description of the force used, to include descriptive information regarding the use of any weapon; v. include a description of any apparent injury to the suspect, any complaint of injury, or the absence of injury (including information regarding any medical aid or on-scene medical evaluation provided); vi. include the reason for the initial police presence; vii. include a description of the level of resistance encountered by each officer that led to each separate use of force and, if applicable, injury; viii. include a description of why de-escalation techniques were not used or whether they were effective;

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ix. include whether the individual was known by the officer to be mentally ill or in mental health crisis;
x. include a general description of force an officer observes another officer apply; and
xi. demonstrate that officers consistently make diligent efforts to document witness observations and explain when circumstances prevent them from identifying witnesses or obtaining contact information. Reports will include all available identifying information for anyone who refuses to provide a statement.
75. In consultation with the COCL, the Inspector shall audit force reports and Directive 940.00 investigations to determine whether supervisors consistently:
a. Complete a Supervisor’s After Action Report within 72 hours of notification;
b. Review all use of force reports to ensure they include the information required by this Agreement and PPB policy;
c. Evaluate the weight of the evidence; d. Use a “decision-point” approach to analyze each use of force; e. Determine whether the officer’s actions appear consistent with
PPB policy, this Agreement, and best practices; f. Determine whether there was legal justification for the original
stop and/or detention;

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g. Assess the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options;
h. Determine whether additional training or counseling is warranted; i. Implement corrective action whenever there are material omissions
or inaccuracies in the officers’ use of force report, and for failing to report a use of force, whether applied or observed; j. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, or poor tactical decisions in EIS; k. Notify PSD and the shift supervisor of every incident involving an officer’s Serious Use of Force, and any Use of Force that could appear to a reasonable supervisor to constitute misconduct; and l. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear to a supervisor that an officer engaged in criminal conduct. 76. In consultation with the COCL, the Inspector shall conduct a quarterly analysis of force data and supervisors’ Directive 940.00 reports designed to: a. Determine if significant trends exist; b. Determine if there is variation in force practice away from PPB policy in any unit; c. Determine if any officer, PPB unit, or group of officers is using force differently or at a different rate than others, determine the

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reason for any difference and correct or duplicate elsewhere, as appropriate; d. Identify and correct deficiencies revealed by the analysis; and e. Document the Inspector’s findings in an annual public report. 77. In consultation with the COCL, the Inspector shall audit the adequacy of chain of command reviews of After Action Reports using the following performance standards to ensure that all supervisors in the chain of command: a. Review Directive 940.00 findings using a preponderance of the evidence standard; b. Review Directive 940.00 reports to ensure completeness and order additional investigation, when necessary; c. Modify findings as appropriate and document modifications; d. Order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings and counsel the investigator; e. Document any training deficiencies, policy deficiencies, or poor tactical decisions, ensure a supervisor discusses poor tactical decisions with the officer and ensure the discussion is documented in EIS; f. Suspend an investigation immediately and notify the branch Assistant Chief, the Director of PSD, and the Detectives Division whenever the investigating supervisor, shift commander or Division

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commander finds evidence of apparent criminal conduct by a PPB

officer; and

g. Reports a matter to PSD for review and investigation whenever an

investigating supervisor, shift commander or precinct commander

finds evidence of apparent misconduct by a PPB officer or

employee.

IV.

TRAINING

78. All aspects of PPB training shall reflect and instill agency expectations

that officers are committed to the constitutional rights of the individuals who have or are

perceived to have mental illness whom they encounter, and employ strategies to build

community partnerships to effectively increase public trust and safety. To achieve these

outcomes, PPB shall implement the requirements below.

79. The Training Division shall review and update PPB’s training plan

annually. To inform these revisions, the Training Division shall conduct a needs

assessment and modify this assessment annually, taking into consideration: (a) trends in

hazards officers are encountering in performing their duties; (b) analysis of officer safety

issues; (c) misconduct complaints; (d) problematic uses of force; (e) input from members

at all levels of PPB; (f) input from the community; (g) concerns reflected in court

decisions; (h) research reflecting best practices; (i) the latest in law enforcement trends;

(j) individual precinct needs; and (k) any changes to Oregon or federal law or PPB

policy.

80. Within 180 days of the Effective Date, PPB shall develop and implement a

process that provides for the collection, analysis, and review of data regarding the

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effectiveness of training for the purpose of improving future instruction, course quality, and curriculum. These evaluations shall measure and document student satisfaction with the training received; student learning as a result of training; and the extent to which program graduates are applying the knowledge and skills acquired in training to their jobs. This audit shall be reported to the Training Division Manager and shall include student evaluations of the program and the instructor.
81. PPB shall ensure that the Training Division is electronically tracking, maintaining, and reporting complete and accurate records of current curricula, lesson plans, training delivered, attendance records, and other training materials in a central, commonly-accessible, and organized file system. Each officer’s immediate supervisor shall review the database for the officers under his/her command at least semi-annually.
82. PPB shall report training delivered and received semi-annually to the Assistant Chief of Operations and, during the pendency of this Agreement, to DOJ.
83. PPB shall institute guidelines to govern its selection of officers that serve as trainers and shall ensure that those officers do not have a history of using excessive force. The trainer selection guidelines shall prohibit the selection of officers who have been subject to disciplinary action based upon the use of force or mistreatment of people with mental illness within the three (3) preceding years, or twice in the preceding five (5) years, and will take into account if a civil judgment has been rendered against the City in the last five (5) years based on the officer’s use of force.
84. All training that PPB provides shall conform to PPB’s current policies at the time of training. PPB shall train all officers on the Agreement’s requirements during the next in-service training scheduled.

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a. With respect to patrol officers, PPB shall: i. increase the use of role-playing scenarios and interactive exercises that illustrate proper use of force decision making, specifically including interactions with people who have or are perceived to have mental illness, including training officers on the importance and impact of ethical decision making and peer intervention; ii. emphasize the use of integrated de-escalation techniques, when appropriate, that encourage officers to make arrests without using force;
iii. continue to provide training regarding an officer’s duty to procure medical care whenever a subject is injured during a force event, and enhance and revise training as necessary to ensure that PPB’s training in this regard is proactive and responsive to deficiencies identified by the Inspector, if any;
iv. continue to train on proactive problem solving and to utilize, when appropriate, disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, requesting specialized units, including CIT officers and mental health professionals, or delaying arrest;
v. describe situations in which a force event could lead to potential civil or criminal liability; and
vi. continue to train officers to avoid using profanity, prohibit using derogatory/demeaning labels, and also avoiding terms not currently

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appropriate for person-center communication, such as the term “mentals,” in all work-related settings and communications, as well as when interacting with the public. b. With respect to supervisors, provide additional training on how to: i. conduct use of force investigations, including the supervisory investigatory responsibilities identified in Section III.A.3; ii. evaluate officer performance as part of PPB’s annual performance evaluation system; and iii. foster positive career development and impose appropriate disciplinary sanctions and non-disciplinary corrective action. 85. In consultation with the COCL, the Inspector shall audit the training program using the following performance standards to ensure that PPB does the following: a. Conducts a comprehensive needs assessment annually; b. Creates a Training Strategic Plan annually; c. Within 180 days of the Effective Date, develops and implements a process for evaluation of the effectiveness of training; d. Maintains accurate records of Training delivered, including substance and attendance; e. Makes Training Records accessible to the Director of Services, Assistant Chief of Operations, and DOJ; f. Trains Officers, Supervisors, and Commanders on areas specific to their responsibilities; and

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g. Ensures that sworn PPB members are provided a copy of all PPB

directives and policies issued pursuant to this Agreement, and sign

a statement acknowledging that they have received, read, and had

an opportunity to ask questions about the directives and/or policies,

within 30 days of the release of the policy.

86.

In consultation with the COCL, the Inspector shall gather and present data

and analysis on a quarterly basis regarding patterns and trends in officers’ uses of force to

the Chief, the PPB Training Division, and to the Training Advisory Council. The

Training Division and Training Advisory Council shall make written recommendations to

the Chief regarding proposed changes in policy, training, and/or evaluations based on the

data presented. The Inspector shall also, in coordination with the COCL and PSD,

identify problematic use of force patterns and training deficiencies. The Chief’s Office

shall assess all use of force patterns identified by the Training Division and/or Training

Advisory Council and timely implement necessary remedial training to address

deficiencies so identified.

87. Training Advisory Council meetings will be open to the public unless the

matter under discussion is confidential or raises public safety concerns, as determined by

the Chief.

V.

COMMUNITY-BASED MENTAL HEALTH SERVICES

88. The absence of a comprehensive community mental health infrastructure

often shifts to law enforcement agencies throughout Oregon the burden of being first

responders to individuals in mental health crisis. Under a separate agreement, the United

States is working with State of Oregon officials in a constructive, collaborative manner to

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address the gaps in state mental health infrastructure. The state-wide implementation of an improved, effective community-based mental health infrastructure should benefit law enforcement agencies across the State, as well as people with mental illness. The United States acknowledges that this Agreement only legally binds the City to take action. Nonetheless, in addition to the City, the United States expects the City’s partners to help remedy the lack of community-based addiction and mental health services to Medicaid clients and uninsured area residents. The City’s partners in the provision of communitybased addiction and mental health services include: the State of Oregon Health Authority, area Community Care Organizations (“CCOs”), Multnomah County, local hospitals, health insurance providers, commercial health providers, and existing NonGovernmental Organizations (“NGOs”) such as community-based mental health providers, and other stakeholders.
89. The United States expects that the local CCOs will establish, by mid-2013, one or more drop-off center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. All such drop off/walk in centers should focus care plans on appropriate discharge and communitybased treatment options, including assertive community treatment teams, rather than unnecessary hospitalization.
90. The CCOs will immediately create addictions and mental health-focused subcommittee(s), which will include representatives from PPB’s Addictions and Behavioral Health Unit (“ABHU”), the ABHU Advisory Board, Portland Fire and Rescue, Bureau of Emergency Communications (“BOEC”) and other City staff. These

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committees will pursue immediate and long-term improvements to the behavioral health care system. Initial improvements include:
a. Increased sharing of information, subject to lawful disclosure, between agencies and organizations including BOEC, Multnomah County, and health care providers to create an information exchange among first responders and providers to better serve those suffering from mental illness;
b. Creation of rapid-access clinics so those in crisis have access to timely medication management appointments;
c. Enhancing access to primary care providers to shift low-tomoderate acuity patients to primary care programs creating more capacity for acute patients in existing outpatient crisis mental health systems;
d. Expanding the options and available capacity for BOEC Operators to appropriately divert calls to qualified civilian mental health providers as first responders;
e. Addressing issues of unmet needs identified by Safer PDX and its community partners;
f. Expanding and strengthening networks of Peer-Mediated services to:
i. develop a referral guide delineating these services and locations and assist with accessing information;

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ii. better educate the community of the viability of these services as

alternative first engagement sites/programs for those having

difficulty engaging with “professional driven” services;

iii. expand peer services connected to peer supports in the community

for inpatient psychiatric units (including Emergency Departments)

and in the community;

iv. add peer guides to work alongside Emergency Department guides

for those patients with behavioral health issues entering the

Emergency Department; and

v. evaluate opportunities to expand use of peers to coordinate with

PPB ABHU (as described herein) and function as a link with

impacted individuals; and

g. pursue tele-psychiatry (a provision of mental health care by video

conferencing) as a way for first responders to take advantage of

existing IT infrastructure to provide direct care or provider-

evaluation supporting the provision of appropriate services to an

individual in crisis.

VI.

CRISIS INTERVENTION

The City acknowledges that the community of consumers of mental health

services, and their families and advocates, have an interest in interactions between PPB

and people experiencing mental health symptoms or crises. The PPB will add new

capacity and expertise to deal with persons perceived or actually suffering from mental

illness, or experiencing a mental health crisis as required by this Agreement. Despite the

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critical gaps in the state and local mental health system, the City and PPB must be equipped to interact with people in mental health crisis without resorting to unnecessary or excessive force. A. Addictions and Behavioral Health Unit and Advisory Committee
91. In order to facilitate PPB’s successful interactions with mental health consumers and improve public safety, within 60 days of the Effective Date, PPB shall develop an Addictions and Behavioral Health Unit (“ABHU”) within the PPB. PPB shall assign command-level personnel of at least the rank of Lieutenant to manage the ABHU. ABHU shall oversee and coordinate PPB’s Crisis Intervention Team (“C-I Team”), Mobile Crisis Prevention Team (“MCPT”), and Service Coordination Team (“SCT”), as set forth in this Agreement.
92. ABHU will manage the sharing and utilization of data that is subject to lawful disclosure between PPB and Multnomah County, or its successor. PPB will use such data to decrease law enforcement interactions or mitigate the potential uses of force in law enforcement interactions with consumers of mental health services.
93. ABHU shall track outcome data generated through the C-I Team, MCPT, and SCT, to: (a) develop new response strategies for repeat calls for service; (b) identify training needs; identify and propose solutions to systemic issues that impede PPB’s ability to provide an appropriate response to a behavioral crisis event; and (c) identify officers’ performance warranting commendation or correction.
94. Within 90 days of the Effective Date, PPB shall also establish an ABHU Advisory Committee. The ABHU Advisory Committee shall include representation from: PPB command leadership, CIT, MCPT, and SCT; BOEC; civilian leadership of

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the City government; and shall seek to include representation from: the Multnomah County’s Sheriff’s Office; Oregon State Department of Health and Human Services; advocacy groups for consumers of mental health services; mental health service providers; coordinated care organizations; and persons with lived experience with mental health services.
95. The ABHU Advisory Committee shall provide guidance to assist the City and PPB in the development and expansion of C-I Team, MCPT, SCT, BOEC Crisis Triage, and utilization of community-based mental health services. The ABHU Advisory Committee shall analyze and recommend appropriate changes to policies, procedures, and training methods regarding police contact with persons who may be mentally ill or experiencing a mental health crisis, with the goal of de-escalating the potential for violent encounters. The ABHU Advisory Committee shall report its recommendations to the ABHU Lieutenant, PPB Compliance Coordinator, COCL (as described herein), and the BOEC User Board.
96. Within 240 days of the Effective Date of this Agreement, the ABHU Advisory Committee will provide status reports on the implementation of the ABHU and BOEC Crisis Triage, and identify recommendations for improvement, if necessary. PPB will utilize the ABHU Advisory Committee’s recommendations in determining appropriate changes to systems, policies, and staffing. B. Continuation of C-I Program
97. PPB provides C-I Training to all its officers. C-I is a core competency skill for all sworn police officers in the City. PPB shall continue to train all officers on C-I.

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98. PPB agrees to continue to require a minimum of 40 hours of C-I training to all officers before officers are permitted to assume any independent patrol or callresponse duties. Additionally, PPB shall include C-I refresher training for all officers as an integral part of PPB’s on-going annual officer training. PPB’s Training Division, in consultation with ABHU Advisory Committee, shall determine the subjects and scope of initial and refresher C-I training for all officers. C. Establishing “Memphis Model” Crisis Intervention Team
99. Within 120 days of the Effective Date, PPB shall establish a Memphis Model Crisis Intervention team (“C-I Team”).
100. PPB’s C-I Team shall be comprised of officers who volunteer for assignment to the C-I Team. The number of C-I Team members will be driven by the demand for C-I Team services, with an initial goal of 60-80 volunteer, qualified officers.
101. No officers may participate in C-I Team if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of C-I Team service, or during C-I Team service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the C-I Team.
102. PPB shall specially train each C-I Team member before such member may be utilized for C-I Team operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for C-I Team members consistent with the Memphis Model.

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103. C-I Team members will retain their normal duties until dispatched for use as a C-I Team. BOEC or PPB may dispatch C-I Team members to the scene of a crisis event.
104. PPB will highlight the work of the C-I Team to increase awareness of the effectiveness of its work.
105. For each crisis event to which a C-I Team is dispatched, the C-I Team member shall gather data that ABHU shall utilize to track and report data on public safety system interactions with individuals with perceived or actual mental illness or who are in crisis. These data shall include:
a. Date, time, and location of the incident; b. Subject’s name, age, gender, and address; c. Whether the subject was armed, and the type of weapon; d. Whether the subject is a U.S. military veteran; e. Complainant’s name and address; f. Name and DPSST number of the officer on the scene; g. Whether a supervisor responded to the scene; h. Techniques or equipment used; i. Any injuries to officers, subject, or others; j. Disposition; k. Whether a mental health professional responded to the scene; l. Whether a mental health professional contacted the subject as a
result of the call; and

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m. A brief narrative of the event (if not included in any other document).
D. Mobile Crisis Prevention Team 106. PPB currently has an MCPT comprised of a two-person team, one sworn
officer and one contractor who is a qualified mental health professional. Within 120 days of the Effective Date, City shall expand MCPT to provide one MCPT car per PPB precinct.
107. Each MCPT car shall be staffed by one sworn PPB officer and one qualified mental health professional. MCPT shall be the fulltime assignment of each such officer.
108. No officers may participate in MCPT if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of MCPT service, or during MCPT service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the MCPT.
109. PPB shall specially train each MCPT member before such member may be utilized for MCPT operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for MCPT members.
110. MCPT shall utilize C-I Team data to proactively address mental health service, in part, by connecting service recipients with service providers.
111. Within 180 days of the Effective Date, PPB, with the advice of the ABHU Advisory Committee, shall develop policies and procedures for the transfer of custody or voluntary referral of individuals between PPB, receiving facilities, and local mental

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health and social service agencies. These policies and procedures shall clearly describe

the roles and responsibilities of these entities and of MCPT officers in the process.

E. Service Coordination Team

112. The Service Coordination Team (“SCT”), or its successor, shall serve to

facilitate the provision of services to individuals who interact with PPB that also have a

criminal record, addictions, and highly acute mental or physical health service needs.

F. BOEC

113. Within 120 days of the Effective Date, BOEC and PPB, with the advice of

the ABHU Advisory Committee, shall complete policies and procedures to triage calls

related to mental health issues, including changes to protocols for assigning calls to

Multnomah County Crisis Call Center, and adding new or revised policies and protocols

to assign calls to the PPB ABHU or directly to NGOs or community-based mental health

professionals.

114. Within 180 days of the Effective Date, the City will complete training of

all BOEC Dispatchers in Crisis Triage. The City, with the advice of the ABHU Advisory

Committee, shall develop ongoing training for BOEC Dispatchers.

115. Within 180 days of the Effective Date, the City shall ensure Crisis Triage

is fully operational to include the implementation of the policies and procedures

developed pursuant to the above paragraph and operation by trained staff.

VII.

EMPLOYEE INFORMATION SYSTEM

116. PPB has an existing Employee Information System (“EIS”) to identify

employees and design assistance strategies to address specific issues affecting the

employee. See PPB Manual 345.00. PPB agrees to enhance its EIS to more effectively

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identify at-risk employees, supervisors and teams to address potentially problematic trends in a timely fashion. Accordingly, within 90 days of the Effective Date, PPB shall:
a. Require that commanders and supervisors conduct prompt reviews of EIS records of employees under their supervision and document the review has occurred in the EIS performance tracker;
b. Require that commanders and supervisors promptly conduct reviews of EIS for officers new to their command and document the review has occurred in the EIS performance tracker; and
c. Require that EIS staff regularly conduct data analysis of units and supervisors to identify and compare patterns of activity.
117. PPB agrees to collect data necessary to conduct these analyses at supervisor- and team-levels.
118. PPB shall continue to use existing thresholds, and specifically continue to include the following thresholds to trigger case management reviews:
a. Any officer who has used force in 20% of his or her arrests in the past six months; and
b. Any officer who has used force three times more than the average number of uses of force compared with other officers on the same shift.
119. Within 90 days of the Effective Date, PPB shall add one additional threshold to trigger case management review any officer who has three uses of force in a one-month period.

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120. Within 90 days of the Effective Date, PPB shall PPB identify and train a second EIS administrator. This individual may be assigned to other tasks within the Professional Standards Division or as otherwise needed.
VIII. OFFICER ACCOUNTABILITY PPB and the City shall ensure that all complaints regarding officer conduct are fairly addressed; that all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. The City and PPB seek to retain and strengthen the citizen and civilian employee input mechanisms that already exist in the PPB’s misconduct investigations by retaining and enhancing IPR and CRC as provided in this Agreement. A. Investigation Timeframe 121. PPB and the City shall complete all administrative investigations of officer misconduct within one-hundred eighty (180) days of receipt of a complaint of misconduct, or discovery of misconduct by other means. For the purposes of this provision, completion of administrative investigations includes all steps from intake of allegations through approval of recommended findings by the Chief, including appeals, if any, to CRC. Appeals to CRC shall be resolved within 21 days. 122. PPB shall conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a

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concurrent criminal investigation, or as otherwise provided by law, or as necessary to meet the CRC or PRB recommendation to further investigate.
123. If PPB is unable to meet these timeframe targets, it shall undertake and provide to DOJ a written review of the IA process, to identify the source of the delays and implement an action plan for reducing them. B. On Scene Public Safety Statements and Interviews
124. Within 90 days of the Effective Date, the City and PPB shall review its protocols for compelled statements to PSD and revise as appropriate so that it complies with applicable law and current professional standards, pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). The City will submit the revised protocol to DOJ for review and approval. Within 45 days of obtaining DOJ’s approval, PPB shall ensure that all officers are advised on the revised protocol.
125. Separation of all witness and involved officers to lethal force events is necessary in order to safeguard the integrity of the investigation of that event. Immediately following any lethal force event, PPB shall continue to issue a communication restriction order (“CRO”) to all witness and involved officers, prohibiting direct or indirect communications between those officers regarding the facts of the event. The CRO will continue, unless extended further, until the conclusion of the Grand Jury or, if no Grand Jury is convened, until a disposition is determined by the District Attorney.
126. PPB shall continue to require witness officers to lethal force events to give an on-scene briefing to any supervisor and/or a member of the Detective Division to ensure that victims, suspects, and witnesses are identified, evidence is located, and

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provide any information that may be required for the safe resolution of the incident, or any other information as may be required.
127. In agreement and collaboration with the Multnomah County District Attorney, PPB shall request that involved officers in lethal force and in-custody death events provide a voluntary, on-scene walk-through and interview, unless the officer is incapacitated. C. Conduct of IA Investigations
128. Currently, both IPR and PPB’s PSD have authority to conduct administrative investigations, provided that IPR interview of PPB Officers must only be conducted jointly with IA. Within 120 days of the Effective Date, the City will develop and implement a plan to reduce time and effort consumed in the redundant interview of witnesses by both IPR and IA, and enable meaningful independent investigation by IPR, when IPR determines such independent investigation is necessary.
129. The City and PPB shall ensure that all allegations of use of excessive force are subject to full and completed IA investigations resulting in findings, unless there is clear and convincing evidence to IPR that the allegation has no basis in fact.
130. The City and PPB shall continue to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.
131. The City and PPB shall retain Police Review Board procedures currently utilized for purposes of investigation and making recommended findings on administrative complaints, except as outlined below:

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a. Currently, seven voting members of the PRB review use of force

incidents, including two citizen members. When PRB reviews

uses of force case, one of the two citizen member slots shall be

drawn from the Citizen Review Committee members.

b. The CRC slot on the PRB in use of force cases will rotate among

the CRC membership so that different CRC members participate

on the PRB. Within 60 days of the Effective Date, the Auditor

shall develop a membership rotation protocol.

c. All members participating in the PRB must maintain

confidentiality and be able to make thoughtful, unbiased, objective

recommendations to the Chief of Police and Police Commissioner

that are based on facts, consistent with PRB city code provisions

and “just cause” requirements set forth in Portland City Charter,

City rules, and labor agreements.

d. All community members and CRC members must meet the

following qualifications to participate on the PRB:

i.

Pass a background check performed by the Bureau.

ii.

Participate in Bureau training to become familiar with

police training and policies, including the PRB process.

iii.

Sign a confidentiality agreement.

iv.

Participate in ride-alongs to maintain sufficient knowledge

of police patrol procedures.

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e. Current city code provides that the City Auditor and the Chief have authority to recommend to City Council the removal of citizen members from the PRB pool. Likewise, the City Auditor or Chief shall have authority to recommend to City Council removal of a CRC member from serving on the PRB. The Chief or the City Auditor may recommend that City Council remove a community member or member of the CRC from the pool for the following reasons: i. Failure to attend training; ii. Failure to read Case Files; iii. Objective demonstration of disrespectful or unprofessional conduct; iv. Repeated unavailability for service when requested; v. Breach of confidentiality; vi. Objective demonstration of bias for or against the police; or vii. Objective demonstration of conflict of interest.
f. Removal from participation in the PRB shall not affect CRC membership.
g. Like current PRB citizen members, CRC members serving on the PRB may serve in that capacity for no more than three (3) years.
h. A CRC member who participates in a PRB review shall recuse himself/herself during any later appeal of the same allegation(s) to the CRC.

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132. By majority vote, the PRB may request that investigations of misconduct be returned to its investigating entity, i.e. PSD or IPR, to complete the investigation as to factual matters necessary to reach a finding regarding the alleged misconduct. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the PRB explaining why additional time is needed.
133. If an officer’s use of force gives rise to a finding of liability in a civil trial, PPB shall: (1) enter that civil liability finding in the EIS; (2) reevaluate the officer’s fitness to participate in all current and prospective specialized units ; (3) if no IA investigation has previously been conducted based upon the same allegation of misconduct and reached an administrative finding, conduct a full IA investigation with the civil trial finding creating a rebuttable presumption that the force used also violated PPB policy, which presumption can only be overcome by specific, credible evidence by a preponderance of evidence; (4) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, identify whether any new evidence exists in the record of the civil trial to justify the reopening of the IA investigation, and if so, reinitiate an IA investigation; and (5) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, and no new evidence from the civil trial justifies reopening the IA investigation, work with IPR to identify the reason why the administrative finding was contrary to the civil trial finding and publish a summary of the results of the inquiry.

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D. CRC Appeals 134. The City shall expand the membership of the CRC to 11 members,
representative of the many and diverse communities in Portland, who are neutral, unbiased, and capable of making objective decisions. The quorum of CRC members necessary to act may remain at its existing level.
135. The City and PPB agree that the CRC may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.
136. In its review process for purposes of the appeal, the CRC may make one request for additional investigation or information to the investigating entity, i.e. PSD or IPR at any point during its review. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the CRC explaining why additional time is needed. The request for additional investigation or information may contain multiple points of inquiry, but no follow-up requests will be permitted. The additional request be voted on by a quorum, the members voting must have read the Case File in order to vote, and any request with multiple points of inquiry must be prioritized. E. Discipline
137. Within 60 days of the Effective Date, PPB and the City shall develop and implement a discipline guide to ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors and to provide discipline that is reasonably predictable and consistent.

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F. Communication with Complainant and Transparency 138. Within 180 days of the Effective Date, the City shall enhance its existing
website to ensure that a complainant can file and track his or her own complaint of officer misconduct.
139. Within 120 days of the Effective Date, the City shall review its protocols to ensure that the City shares with complainants requested documentation about his or her own complaint to the extent permitted by law.
140. The City shall ensure that IPR provides each complainant a tracking number upon receipt of the complaint, informs each complainant of the complaint classification, assignment (precinct or IA) and outcome of the complaint (sustained, unproven, etc.) in writing (whether mail, email/text, or fax), including information regarding whether the City took any corrective action. The City Attorney’s Office shall determine whether disclosures regarding corrective action are required on a case-by-case basis consistent with Oregon’s Public Records Law.
IX. COMMUNITY ENGAGEMENT AND CREATION OF COMMUNITY OVERSIGHT ADVISORY BOARD
There is significant community and City interest in improving PPB’s community relationships. The community is a critical resource. Redefining and restructuring existing community input mechanisms to provide for independent oversight of the Agreement, while also enhancing PPB’s current community outreach efforts will promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety. To achieve this outcome, at a minimum, PPB shall implement the requirements below.

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141. To leverage the ideas, talent, experience, and expertise of the community,

the City, in consultation with DOJ, shall establish a Community Oversight Advisory

Board (“COAB”), within 90 days of the Effective Date of this Agreement. The COAB

shall be authorized to: (a) independently assess the implementation of this Agreement;

(b) make recommendations to the Parties and the COCL on additional actions; (c) advise

the Chief and the Police Commissioner on strategies to improve community relations; (d)

provide the community with information on the Agreement and its implementation; (e)

contribute to the development and implementation of a PPB Community Engagement and

Outreach Plan (“CEO Plan”); and (f) receive public comments and concerns.

142. Membership of the COAB shall be comprised of fifteen (15) voting

members, five (5) advisory members, and the COCL.

a. The 15 voting members and the five advisory members shall be

selected as follows:

i.

Each member of City Council will select one representative

to serve on the COAB, for a total of five voting

representatives;

ii.

The chair of the Human Rights Commission shall designate

one Human Rights Commissioner to serve on the COAB;

iii.

The chair of the Portland Commission on Disability shall

designate one Commissioner on Disability to serve on the

COAB;

iv.

The chair of the Human Rights Commission and the chair

of the Portland Commission on Disability shall jointly

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select three community members to serve as representatives

of the mental health community on the COAB, after

soliciting and reviewing applications from the public.

These three COAB members will possess demonstrated

expertise in the field of mental health in the form of either:

(a) certification as a Qualified Mental Health Professional;

or (b) no less than ten (10) years of demonstrated service to

persons with mental illness. These three selections shall be

completed within 60 days of the COCL selection.

v.

The community-at-large will select five voting

representatives directly from the community. The process

used for this selection is discussed in paragraph 145 herein;

and,

vi.

The Chief will select a diverse group of five sworn officers

within various ranks to serve as advisors and non-voting

members of the COAB, and may consider whether the

officer resides in Portland (“Advisory Members”).

b. The COAB’s membership will come from a reasonably broad

spectrum of the community, such as: areas of expertise, advocacy

experience, community involvement, profession, education, race,

ethnicity, gender, gender identity, sexual orientation, national

origin, age, religion, mental or physical disability and geographic

identification. COAB members, including Advisory Members,

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must live, work, worship, or attend school in the City of Portland. COAB members shall not have an actual or perceived conflict of interest with the City of Portland. 143. The 15 voting members of COAB are independent of the City and PPB and shall not be currently employed by the City. Members must agree to serve for a minimum of a two-year term, and may be reappointed for one additional year. The COAB may create an executive committee or other subcommittees, as appropriate, to accomplish the tasks designated to it under this Agreement. The City shall provide administrative support so that the COAB can perform the duties and responsibilities identified in this Agreement. 144. The COAB shall report to the COCL. The COCL will chair the COAB, preside over COAB meetings, take and count votes, and perform such other activities as are necessary for the efficient operation of the COAB. If the COCL determines that a COAB member is no longer fit to serve on account of misconduct, the COCL shall consult with DOJ prior to removing such member. Following the removal of a COAB member, an alternative shall be selected from the same pool of applicants as the removed COAB member. 145. Selection of the five (5) community voting members shall be made as follows: a. Each neighborhood coalition in Portland may propose a candidate for membership on the Committee. Any other non-profit organization within the City may also propose a candidate for membership. Any other person who lives, works, or is enrolled in

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school in Portland and is over the age of 15 may be considered

provided they provide the City with the names of 50 verified

residents over the age of 15 of the City of Portland who support his

or her nomination;

b. The City shall widely advertise and hold a public meeting where

previously nominated candidates will be selected. Any Portland

resident is welcome to attend and participate in the selection

process. The City will publicize the meeting throughout all the

various communities of Portland;

c. At the public meeting, candidates will be given an opportunity to

speak and ask for support. In their statements, candidates must

indicate whether they live, work, worship, and/or attend school

within the City of Portland;

d. Attendees at the public meeting and will be asked to select their

choice of candidates;

i.

If there are ten or fewer candidates, then the attendees

present will select the top five candidates receiving the

most votes;

ii.

If there are more than ten candidates, a preliminary vote

will be taken and the top ten candidates receiving the most

votes will be selected and a second vote will be taken to

reduce the number to the five persons that will serve on the

COAB;

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iii.

The next two candidates who receive the most votes shall

be identified as potential alternates, should a COAB

member be removed or incapacitated; and,

iv.

Because the number of persons who may be interested in

participating in this process is unknown, the City may

adopt other procedures necessary to conduct the meeting

and to carry out the intent of these provisions.

e. This process of selecting the five community members shall be

completed within 60 days of the COCL selection.

146. To ensure constitutional policing, to closely interact with the community

to resolve neighborhood problems, and to increase community confidence, PPB shall

work with City resources knowledgeable about public outreach processes to develop and

finalize a CEO Plan:

a. Within 90 days of the COAB selection, the City, in consultation

with COAB, will conduct a reliable, comprehensive, and

representative survey of members of the Portland community,

including civilians and PPB officers, regarding their experiences

with and perceptions of PPB’s prior community outreach efforts

and accountability efforts and where those efforts could be

improved, to inform the development and implementation of the

CEO Plan;

b. COAB, in conjunction with PPB, shall consult with community

members (not only through PPB Advisory Councils and

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Roundtables) and hold at least two (2) public hearings, completed within 90 days of the COAB selection, in addition to the representative survey described above, to gather public input on PPB’s outreach efforts; the hearings shall be held in locations to ensure that PPB receives input from all parts of the Portland community; c. COAB shall review PPB’s prior community outreach efforts to contribute to the development of a new CEO Plan; d. COAB shall solicit and consider input from the Human Rights Commission’s Community Police Relations Committee (“CPRC”), including its work to implement the 2009 PPB “Plan to Address Racial Profiling”; e. Within 60 days of the anticipated due date for survey results, the COAB and PPB, in consultation with the appropriate City resources knowledgeable about public outreach and survey analysis, shall review and analyze the results of the survey and other public comments discussed above; f. The CEO Plan shall include strategies to ensure greater public outreach and engagement, including opportunities for outreach to a broad cross-section of community members. The Plan shall also identify gaps in available resources to achieve its goals.

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g. The COAB may also provide information to the PPB on other

areas related to community engagement and outreach to contribute

to the development of the CEO Plan, including:

i.

integration of community and problem-oriented policing

principles into PPB’s management, policies and

procedures;

ii.

recruitment, selection, training, promotion, and personnel

evaluations;

iii.

tactics and deployment of resources; and

iv.

systems of accountability.

g. COAB shall submit its recommended CEO Plan to the Chief, in

writing, within 90 days of the COAB’s completion of survey

analysis.

h. The Chief’s Office, in consultation with the five PPB advisory

members of the COAB shall utilize the COAB’s recommendations

in developing and implementing the CEO Plan. The Chief’s

Office shall present the final proposed CEO (with implementation

timeline) to the COAB for a vote of approval within 240 days of

the effective date of this Agreement.

147. PPB shall continue to collect appropriate demographic data for each

precinct so that the Precinct Commander, together with the COAB, may develop outreach

and policing programs specifically tailored to the residents of the precincts.

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148. PPB shall continue to require that officers document appropriate demographic data regarding the subjects of police encounters, including the race, age, sex and perceived mental health status of the subject, and provide such information to the CPRC to contribute to their analysis of community concerns regarding discriminatory policing. In consultation with the COAB and CPRC, PPB shall consider enhancements to its data collection efforts, and report on its efforts to enhance data collection to the DOJ by no later than December 31, 2013, and quarterly thereafter.
149. The COAB, COCL, PPB, and DOJ will jointly develop metrics to evaluate community engagement and outreach.
150. Annually, PPB shall issue a publicly available PPB Annual Report, which shall include a summary of its problem-solving and community policing activities. A draft of the Annual Report shall be reviewed by the COAB before the report is finalized and released to the public. Once released, PPB shall hold at least one meeting in each precinct area and at a City Council meeting, annually, to present its Annual Report and to educate the community about its efforts in community policing in regard to the use of force, and about PPB’s policies and laws governing pedestrian stops, stops and detentions, and biased-free policing, including a civilian’s responsibilities and freedoms in such encounters.
151. The COAB may make recommendations approved by a majority of its membership regarding implementation of the terms of this Agreement.
152. The COAB, shall meet at least twice per year with the Chief, the Police Commissioner, PPB Precinct Commanders, PPB Neighborhood Response Teams, and a representative of the Office of Neighborhood Involvement Crime Prevention to assess

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and solicit comment on PPB’s activities in regards to community outreach, engagement, and problem-solving policing. The COAB shall also provide the opportunity for public comment at each of its meetings to keep open lines of communication with the public-atlarge.
153. A representative of the Oregon U.S. Attorney’s Office shall be invited to attend all COAB meetings.
154. COAB shall meet as needed to accomplish their objectives as set forth in this Agreement. All COAB meetings shall be open to the public. In addition, COAB shall attend quarterly meetings with the COCL as provided in Par 163. To the extent that COAB meetings are subject to the Oregon Public Meetings Law, or similar regulatory or statutory requirements, the City shall be responsible to give advice necessary to the COCL to ensure compliance with those laws and agrees to represent COCL in any challenges regarding compliance with those laws.
155. The City shall provide COAB members with appropriate training necessary to comply with requirements of City and State law.
X. AGREEMENT IMPLEMENTATION AND ENFORCEMENT 156. PPB shall implement immediately all provisions of this Agreement which involve the continuation of current policies, procedures, and practices specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement. Except where otherwise specifically indicated, PPB shall implement all other provisions of this Agreement no later than within 180 days of the Effective Date.

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157. With regard to any provision that provides for DOJ’s review and approval, including review of all policies that must be revised, approval will be granted in a timely fashion provided that the PPB’s action reasonably satisfies the requirements and standards set forth in the relevant provision(s).
158. All PPB audits and reports related to the implementation of this Agreement shall be made publicly available via website and at PPB, IPR, City Hall, and other public locations. Audits and reports shall be posted on PPB’s website.
159. PPB shall collect and maintain all data and records necessary to facilitate and ensure transparency and wide public access to information related to PPB decision making and activities, and compliance with this Agreement, in accordance with the Oregon Public Records Law. A. Compliance Officer/Community Liaison
160. Within 60 days from the Effective Date, the City shall publicly identify three potential candidates with expertise in police practices, community engagement, and crisis intervention methods, to serve as a Compliance Officer and Community Liaison (“COCL”). Following a 30-day public comment period, the City Council shall select a COCL, who shall be responsible for synthesizing data related to PPB’s use of force, reporting to the City Council, DOJ, and the public and gathering input from the public related to PPB’s compliance with this Agreement. The COCL shall not be attached to any one City office, shall be wholly independent of PPB, and shall be responsive to the entire City Council, the public, and DOJ. The City shall provide administrative support so that the COCL can perform the duties and responsibilities identified in this Agreement.

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161. In order to collect data and report on PPB’s implementation of each substantive provision of this Agreement, the COCL shall conduct the reviews specified in paragraph 173 of this Agreement and such additional reviews regarding the implementation of this Agreement as the COCL, the City, or DOJ deems appropriate. Based on the COCL’s reviews and community input, the COCL shall make recommendations to the City regarding measures necessary to ensure full and timely implementation of this Agreement.
162. The COCL shall prepare quarterly, written, public reports detailing PPB’s compliance with, and implementation of, each substantive provision of this Agreement. The reports shall specify: (a) the methodology and monitoring activities employed; (b) the COCL’s assessment of compliance for each paragraph; and (c) the COCL’s recommendations regarding necessary steps to achieve compliance, as warranted. The COCL shall substantiate his or her compliance assessments and recommendations. The COCL’s reports shall be written with due regard for the privacy interests of individual officers and the subjects involved in the use of force interactions, and the interest of PPB in protecting against disclosure of non-public information.
163. The COCL shall provide a copy of all reports to the Parties and the COAB in draft form and allow the Parties and the COAB 30 days to informally comment on the reports. The COCL shall also hold open town hall meetings on a quarterly basis where he/she will present his/her draft compliance report to the COAB, and receive public comment on his/her assessments of compliance and recommendations. The COAB will be responsible for drafting comments to the COCL’s report, and shall incorporate any comments or concerns from the public-at-large related to PPB’s compliance with the

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Agreement into its comments. The public shall have the opportunity to raise comments or concerns at the open town hall meeting or via online and/or electronic mail submissions. The COCL and COAB shall jointly ensure that the time and location of these quarterly town hall meetings are well publicized with sufficient advance notice and that significant efforts are made to procure attendance of a community body broadly representative of the many and diverse communities in Portland, including persons with mental illness, mental health providers, faith communities, minority, ethnic, and other community organizations, and student or youth organizations. These quarterly meetings shall facilitate the sharing of information on the Agreement and its implementation with the broad community body and permit the COCL and the COAB to receive comments and concerns.
164. The COCL shall consider the Parties’ responses and COAB’s response to its draft report and make appropriate changes, if any, before issuing a final version of the report. The COCL shall issue the final report to the Parties and make all final reports publicly available through posting on the City’s website. The Parties’ responses and COAB’s response to the COCL’s draft report shall also be published on the City’s website. The Parties may submit any COCL reports to the Court if questions arise concerning compliance with this Agreement. The Parties agree that COCL reports may be used to evidence compliance or non-compliance with this Agreement, subject to the weight afforded to such reports by the Court. B. PPB Compliance Coordinator
165. PPB will hire or retain an employee familiar with the operations of PPB for the duration of this Agreement, to serve as a PPB Compliance Coordinator. The

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Compliance Coordinator will serve as a liaison between PPB and both the COCL and DOJ and will assist with PPB’s compliance with this Agreement. At a minimum, the Compliance Coordinator will:
a. Coordinate PPB’s compliance and implementation activities; b. Facilitate the provision of data, documents, materials, and access to
PPB personnel to the COCL and DOJ, as needed; c. Ensure that all documents and records are maintained as provided
in this Agreement; d. Assist in assigning compliance tasks to PPB personnel, as directed
by the Chief of Police or the Chief’s designee; and e. Take primary responsibility for collecting the information the
COCL requires to carry out his/her assigned duties. C. Access to People and Documents
166. The COCL shall have full and direct access to all PPB and City staff, employees, facilities, and documents that the COCL reasonably deems necessary to carry out his/her duties. If a document requested by the COCL is a privileged attorney-client communication, the COCL shall not disclose the document in a manner that destroys that privilege without the approval of the City Attorney. The COCL shall cooperate with PPB and the City to access people, facilities, and documents in a reasonable manner that minimizes, to the extent possible, interference with daily operations. In order to report on PPB’s implementation of this Agreement, the COCL shall regularly conduct reviews to ensure that PPB implements and continues to implement all measures required by this

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Agreement. The COCL may conduct on-site reviews without prior notice to PPB or the City.
167. For the purpose of monitoring this Agreement, DOJ and its consultative experts and agents shall have full and direct access to all PPB and City staff, employees, facilities, and documents, that DOJ reasonably deems necessary to carry out the enforcement and monitoring provisions of this Agreement to the extent permitted by law. DOJ and its consultative experts and agents shall cooperate with PPB and the City to access involved personnel, facilities, and documents in a reasonable manner that minimizes interference with daily operations; however, DOJ may conduct on-site reviews without prior notice to PPB or the City. DOJ shall provide PPB or the City with reasonable notice of a request for copies of documents. Upon such request, PPB or the City shall provide DOJ with copies (electronic, where readily available) of any documents that DOJ is entitled to access under this Agreement, except any documents protected by the attorney-client privilege. Should PPB decline to provide DOJ with access to a document based on attorney-client privilege, PPB promptly shall provide DOJ with a log describing the document, including its author, recipients, date of production, and general topic.
168. All non-public information provided to the COCL or DOJ by PPB or the City shall be maintained in a confidential manner. Nothing in this Agreement requires the City to disclose documents protected from disclosure by the Oregon Public Records Law to third parties.

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D. Review of Policies and Investigations 169. Within 180 days of the Effective Date, PPB shall revise and/or develop its
policies, procedures, protocols, training curricula, and practices to ensure that they are consistent with, incorporate, address, and implement all provisions of this Agreement specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement. PPB shall revise and/or develop as necessary other written documents such as handbooks, manuals, and forms, to effectuate the provisions of this Agreement. PPB shall send new or revised policies, procedures, protocols, and training curricula regarding use of force, interactions with persons in mental health crisis and systems of accountability to DOJ as they are promulgated, with a copy to the COCL. DOJ and the COCL will provide comments within 45 days and will not unreasonably withhold recommendations about policies, procedures, protocols, and training curricula. The COCL shall seek the timely input of the relevant members of the Training Division and patrol officers, as well members of the community. If the City disagrees with DOJ’s comments, the City shall, within 14 days of being informed of the DOJ’s comments, inform the Parties in writing of the disagreement. Within 14 days thereafter, the Parties shall meet and confer on the disagreement at a mutually agreeable time. Upon approval by the Parties, policies, procedures, training curricula, and manuals shall be implemented within 30 days of agreement or the Court’s decision. PPB shall provide initial and in-service training to all officers and supervisors with respect to newly implemented or revised policies and procedures. PPB shall document employee review of and training in new or revised policies and procedures.

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170. The Chief shall post on PPB’s website final drafts of all new or revised policies that are proposed specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement, to allow the public an opportunity for notice and comment, prior to finalizing such policies.
171. The Chief’s Office shall coordinate a review of each policy or procedure required by this Agreement 180 days after such policy or procedure is implemented, and annually thereafter (on a regularly published schedule), to ensure that such policy or procedure provides effective direction to PPB personnel and remains consistent with the purpose and requirements of this Agreement.
172. PPB shall apply policies uniformly and hold officers accountable for complying with PPB policy and procedure.
173. In addition to compliance reviews, the COCL shall lead semi-annual qualitative and quantitative outcome assessments to measure whether the City and PPB’s implementation of this Agreement has created: (1) capable systems and resources for responding to persons in mental health crisis; (2) competent accountability and oversight systems; (3) effective training for police officers that increases the knowledge, skills and abilities necessary for effective and successful delivery of service to persons in mental health crisis; (4) proper management of the use of force to meet constitutional standards; and (5) robust systems of community engagement. These outcome assessments shall be informed by the following:

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a. Use of Force Data: i. the number of police interactions where force was used on individuals with actual or perceived mental illness, including the type of force used; the reason for the interaction, i.e., suspected criminal conduct or a well-being check; the threat to public safety, including whether the person was armed and if so, with what; a description of the type of resistance offered, if any; and a description of any attempts at strategic disengagement; ii. the rate of force used per arrest by PPB; force implement used; geographic area (i.e., street address, neighborhood, or police precinct or district); type of arrest; and demographic category; iii. the rate of force complaints that are sustained, overall and by force type; source of complaint (internal or external); type of arrest; type of force complained of; demographic category; iv. uses of force that were found to violate policy overall and by force type; type of arrest; demographic category; force implement used; and number of officers involved; v. the number and rate of use of force administrative investigations/reviews in which each finding is supported by a preponderance of the evidence;

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vi. the number of officers who frequently or repeatedly use force, or have more than one instance of force found to violate policy;
vii. the rate at which ECW usage decreases or increases compared to the use of force overall and by weapon; and
viii. the rate at which officer and subject injuries decrease or increase overall and by severity of injury.
b. Mental health interaction data on: i. MCPT dispositions; ii. the flow of people in mental health crisis through PPB, the County jail, emergency receiving facilities, and community agencies; iii. officer and agency staff satisfaction with the transfer process; iv. the rate of repeat calls for service involving individuals in mental health crisis; v. the use of the mental health commitment law; and vi. the availability of appropriate treatment options;
c. Training data, including: i. officer evaluation of adequacy of training; and ii. the Training Division’s assessment of incidents involving officer or civilian injury.
d. Performance data, including:

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i. uses of force found to be unreasonable, complaints sustained and not sustained, and other performance related indicators for supervisors/commanders promoted pursuant to the requirements of this Agreement, and for the units these supervisors/commanders command; and
ii. initial identification of officer violations and performance problems by supervisors, and effectiveness of supervisory response.
e. Accountability data, including: i. the number of complaints (broken out by type of complaint), with a qualitative assessment of whether any increase or decrease appears related to access to the complaint process; ii. rate of sustained, not sustained, exonerated complaints; iii. the number and rate of complaints in which the finding for each allegation is supported by a preponderance of the evidence; iv. the number of officers who are subjects of repeated complaints, or have repeated instances of sustained complaints; and v. the number, nature, and settlement amount of civil suits against PPB officers regardless of whether the City is a defendant in the litigation.

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174. In conducting these outcome assessments, the COCL may use any relevant data collected and maintained by PPB, provided that it has determined, and the Parties agree, that this data is reasonably reliable and complete. Additionally, the COCL shall solicit input from community groups or initiatives that have relevant experience conducting statistical analyses. The COCL will contribute to and review the Annual Community Survey.
175. Two years after the Effective Date, DOJ shall conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by the Agreement have been achieved. DOJ will further examine whether any modifications to the Agreement are necessary in light of changed circumstances or unanticipated impact (or lack of impact) of the Agreement’s requirements. This assessment also shall address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating full and effective compliance. Based upon this comprehensive assessment, DOJ may recommend modifications to the Agreement that are necessary to achieve and sustain intended outcomes. Where the City agrees with DOJ’s recommendations, the Parties shall stipulate to modify the Agreement accordingly. Nothing in this assessment shall empower DOJ to unilaterally modify the terms of this Agreement. E. City Reports and Records
176. Beginning with the COCL’s first quarterly report, as set forth in paragraph 166 of this Agreement, PPB shall prepare a status report no later than 45 days before the COCL’s quarterly report is due. The PPB Compliance Coordinator shall lead the effort in preparing this status report and shall provide copies to the COCL, DOJ, and the public.

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PPB’s report shall delineate the steps taken by PPB during the reporting period to comply with each provision of this Agreement.
177. PPB shall maintain all records, as applicable, necessary to document their compliance with the terms of this Agreement and all documents expressly required by this Agreement. F. Enforcement
178. The Parties agree jointly to file this Agreement with the United States District Court for the District of Oregon, in a matter to be captioned United States v. City of Portland, Civil Action No. --CV--. The joint motion shall request that the Court enter the Agreement pursuant to Federal Rule of Civil Procedure 41(a)(2), and conditionally dismiss the complaint in this action with prejudice, while retaining jurisdiction to enforce the Agreement. If the Court does not retain jurisdiction to enforce the Agreement, the Agreement shall be void.
a. The Parties anticipate that the City will have substantially complied with all provisions of the Agreement by October 12, 2017. Substantial compliance is achieved if any violations of the Agreement are minor or occasional and are not systemic.
b. The Court shall retain jurisdiction of this action for all purposes until the City has substantially complied with all provisions of this Agreement and maintain substantial compliance with all provisions for one year.
c. The Parties may agree to jointly ask the Court to terminate the Agreement before the end of the five year term, provided the City

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has substantially complied with all provisions of the Agreement and maintained substantial compliance with all provisions for one year. If the case has not yet been dismissed, the Parties agree to ask the Court for a non-evidentiary hearing on the status of compliance on or near October 12, 2017. If the Parties agree that there is non-compliance, or if there is a dispute about compliance, the Parties will so inform the Court, and the Court may set additional hearing dates as appropriate. The Parties may agree jointly at any time to allow for additional time to resolve compliance issues. 179. The United States acknowledges the good faith of PPB and the City in trying to address the remedial measures that are needed to promote police integrity and ensure constitutional policing in the City. The United States, however, reserves its right to seek enforcement of the provisions of this Agreement if it determines that PPB or the City have failed to fully comply with any provision of this Agreement. 180. The United States understands that many portions of this Agreement will take time to implement and that implementation may require changes to, among other things, collective bargaining agreements, the city code, and current city policies and will likely require additional revenue resources that have not yet been identified at the time this Agreement is executed. 181. If the United States reasonably believes the City has failed to implement the terms of the Agreement, it shall promptly notify the City in writing and identify with specificity the portion or portions of the Agreement about which it has concerns.

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Similarly, if the City believes that DOJ has misinterpreted a provision of this Agreement

it may promptly notify DOJ of its concerns, noting the specific portions of the Agreement

that it believes has been misinterpreted.

182. Notices provided by the United States or by the City shall be in writing

and provided by mail to the following persons:

Chief of Police 1111 SW Second Portland, Oregon 97204

City Attorney 1221 SW 4th Avenue, Suite #430
Portland, Oregon 97204

Section Chief Special Litigation Section 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

U.S. Attorney District of Oregon 1000 S.W. Third Ave., Suite 600 Portland, OR 97204

183. Following receipt by mail of any written Notice, the City or DOJ shall

respond in writing within 30 days to the concerns raised by the other Party. Depending

on the nature and number of the concerns the City or DOJ may request additional time to

respond, and such a request shall not be unreasonably denied. The Notice and the Party’s

Response thereto shall be considered to be in the nature of settlement discussions

between the Parties and subject to Federal Rule of Procedure 408.

184. If the Response fails to resolve the other Party’s concerns, the Parties

agree to meet as soon thereafter as is mutually convenient to discuss the City’s

compliance with the portion(s) of the Agreement identified in the Notice or the

interpretation of the Agreement by DOJ. Persons attending the meeting shall have

authority to resolve the concerns, unless resolution of the concern requires adoption of an

ordinance or resolution by City Council or by the Assistant Attorney General in Charge

of the DOJ Civil Rights Division.

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185. If a meeting between the Parties fails to resolve the concerns, the Parties agree to participate in mediation conducted by a neutral third party mutually agreeable to the Parties. If the Parties cannot agree upon the selection of a mediator, the Parties shall submit three names of potential mediators to each other. Each Party may then strike two of the three names provided by the other Party. The remaining two names shall be given to the Chief Judge of the U.S. District Court for the District of Oregon and the Chief Judge shall appoint the mediator from one of the names provided.
186. If mediation fails to resolve the concerns, the United States or the City may file a Motion in the Federal District Court for the District of Oregon, located in Portland, Oregon, to enforce compliance with the terms of this Agreement or to seek a Declaration of the meaning of this agreement. The Motion or request for Declaration shall only allege concerns raised by the Parties which were the subject of mediation. The Parties shall then meet with the court to schedule a date on which the Motion or Declaration shall be heard or will otherwise comply with the court’s preferred procedure. The Parties agree the Judge hearing the Motion shall determine whether or not the Agreement has been breached and may interpret the meaning of the Agreement and has the power to issue an appropriate remedy, if any. If, for any reason, the Judge finds the City is not in compliance with the Agreement, but that noncompliance was beyond the reasonable control of the City, the City shall not be in breach of this Agreement. However, in the event of noncompliance beyond the reasonable control of the City, the Parties agree that the Court may exercise its equitable powers to devise an appropriate remedy or modification of this Agreement to accomplish the same result as that intended

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by the portion of the Agreement with which noncompliance was found, provided the Parties cannot reach agreement on the remedy or modification.
187. Nothing prohibits the Parties from engaging in any informal or formal discussions regarding this Agreement or the City’s compliance with this Agreement. The Parties may jointly stipulate to make changes, modifications, and amendments to this Agreement, which shall be effective, absent further action from the Court, 45 days after a joint motion has been filed with the Court. Any modification of this Agreement by the City of Portland must be approved by the City Council of the City by written ordinance.
188. The Parties agree to defend the provisions of this Agreement. The Parties shall notify each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any City, county, or state court, removal to a federal court shall be sought by the Parties.
189. The PPB and the City agree to promptly notify DOJ if any term of this Agreement becomes subject to collective bargaining. The City agrees to keep DOJ apprised of the status of the resulting negotiations.
190. All PPB officers and persons related to the implementation of this Agreement shall sign a statement indicating that they have read and understand this Agreement within 90 days of the effective date of this Agreement. Such statement shall be retained by PPB. PPB shall require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors.

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RESPECTFULLY SUBMITTED this _17th__ day of __December_________ 2012. FOR THE UNITED STATES: ERIC HOLDER Attorney General

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/s/ S. Amanda Marshall____________ S. AMANDA MARSHALL United States Attorney District of Oregon
ADRIAN L. BROWN BILLY J. WILLIAMS Assistant United States Attorneys

/s/ Thomas E. Perez_________________ THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section LAURA COON Special Counsel R. JONAS GEISSLER MICHELLE JONES Senior Trial Attorneys

FOR THE CITY OF PORTLAND
/s/ Sam Adams SAM ADAMS Mayor Police Commissioner

APPROVED AS TO FORM:
/s/ James H. Van Dyke JIM VAN DYKE City Attorney

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APPROVED and ORDERED this ______ day of _____________________, 2012.
________________________________ HONORABLE United States District Judge District of Oregon

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF PORTLAND, Defendant.

Case No. 3:12-cv-02265-SI
ORDER ENTERING SETTLEMENT AGREEMENT, CONDITIONALLY DISMISSING LITIGATION, AND SETTING FIRST ANNUAL SETTLEMENT-COMPLIANCE HEARING

S. Amanda Marshall, United States Attorney; Adrian L. Brown and Billy J. Williams, Assistant United States Attorneys, David W. Knight, Special Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Jocelyn Samuels, Acting Assistant Attorney General; Jonathan M. Smith, Chief; Laura Coon, Special Counsel; R. Jonas Geissler and Michelle Jones, Senior Trial Attorneys, Special Litigation Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, 50 Pennsylvania Avenue, NW, Washington, D.C. 20530. Of Attorneys for Plaintiff.
Tracey Pool Reeve, City Attorney; David Woboril, Senior Deputy City Attorney; Ellen Osoinach, Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 S.W. Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant.
Anil S. Karia, TEDESCO LAW GROUP, 3021 N.E. Broadway, Portland, OR 97232. Of Attorneys for Intervenor-Defendant Portland Police Association.
J. Ashlee Albies, CREIGHTON & ROSE, P.C., 500 Yamhill Plaza Building, 815 S.W. Second Avenue, Portland, OR 97204; Shauna M. Curphey, CURPHEY & BADGER, P.A., 520 S.W. Sixth Avenue, Suite 1040, Portland, OR 97204. Of Attorneys for Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform.
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Michael H. Simon, District Judge. The United States of America (“Plaintiff” or “United States”) brought this lawsuit
against the City of Portland (“Defendant” or “City of Portland”) under 42 U.S.C. § 14141. The United States and the City of Portland have entered into a proposed Settlement Agreement (“Settlement Agreement”) and have jointly moved the Court to accept the Settlement Agreement and enter the Settlement Agreement as an Order of the Court. Both the United States and the City of Portland agree that entering into the Settlement Agreement, rather than engaging in contested litigation, is the best way to resolve the claims brought by the United States in this matter, which concern policing practices in the City of Portland primarily with respect to persons with actual or perceived mental illness. Both the United States and the City of Portland further agree that it will likely take several years, possibly as many as five years, for the City of Portland substantially to comply with all of the provisions of the Settlement Agreement. In addition, both the United States and the City of Portland jointly ask the Court to retain jurisdiction over this action for all purposes until the City of Portland substantially has complied with all provisions of the Settlement Agreement and maintained substantial compliance with all provisions for one year.
At the Court’s request, the United States, the City of Portland, IntervenorDefendant Portland Police Association (“PPA”), and Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform (“AMA Coalition”) engaged in mediation. The mediation produced two separate agreements: a Memorandum of Agreement (“MOA”) between the United States, the City of Portland, and the PPA; and a

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Collaborative Agreement (“CA”) between the United States, the City of Portland, and the
AMA Coalition.
The question before the Court is whether the Settlement Agreement, as a whole, is
fair, adequate, and reasonable as a means of resolving the claims raised in the Complaint.
To assist the Court in answering that question, the Court held a Fairness Hearing on
February 18 and 19, 2014, and received written submissions and oral testimony from the
United States, the City of Portland, Intervenor-Defendant PPA, Enhanced Amicus Curiae
AMA Coalition (collectively the “Parties”), and numerous members of the public,
pre-hearing, during the hearing, and post-hearing.
Following the Fairness Hearing, the Court directed several questions to the
Parties. One question asked by the Court was:
Question 12: A number of police departments provide officers with “on-officer recording systems” (also known as “body cameras,” “body cams,” or “cop cams”), which are small, pagersized cameras that clip onto an officer’s uniform or glasses or are worn as a headset. These devices record audio and video of the officer’s interactions with the public. Please explain whether requiring these devices would promote the objectives of the Agreement and, if so, why such a requirement was not included.
ECF No. 61, pp. 7-8. In response to this question, the United States stated:
The United States has not required that all PPB officers wear body cameras, but the Agreement does not prohibit the City from using body cameras. Currently, the City records many of its interactions through mobile video recorders, handheld radio transmissions, and GPS locations. It is our understanding that the City is willing to engage in use of body cameras to the extent that the technology is dependable and that its use is affordable. If the City utilizes body cameras, the City must carefully govern their use to protect the rights of subjects and bystanders, e.g., providing Miranda warnings when appropriate and respecting reasonable expectations of privacy.
The determination to include or exclude body cameras from the Agreement is driven by a number of factors. While technology Page 3 – ORDER ENTERING SETTLEMENT AGREEMENT

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limitations, concerns about privacy rights, and appropriateness of remedy may weigh on such considerations, the ultimate compromise reached in this case is the product of negotiation and subject to settlement privilege. ECF No. 63, pp. 20-21 (emphasis added). The Court notes that as the technology in this area continues to improve and become more dependable and affordable, more city police departments in the United States are choosing to employ this technology in ways that protect both law enforcement officers and the public they serve. Notwithstanding these positive developments, the fact that the Settlement Agreement does not contain such a requirement does not justify the rejection of the Settlement Agreement. After reviewing the Settlement Agreement and considering the views of the Parties and all public comments received, the Court finds that the Settlement Agreement, as a whole, is fair, adequate, and reasonable to address the claims raised in the Complaint and, accordingly, hereby: ORDERS that the Settlement Agreement shall be and is entered as an Order of the Court; ORDERS that the Complaint is conditionally dismissed without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, subject to the terms set forth in this Order, which the Court considers proper, just, and necessary; ORDERS that the Court retain jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1345, to enforce any provision of the Settlement Agreement, the MOA, or the CA; ORDERS that the City of Portland direct the Compliance Officer/Community Liaison (“COCL”), a position created under the Settlement Agreement, to provide copies to the Court in a timely fashion, or that the City of Portland do so itself, of all final quarterly reports, which are referenced in the Settlement Agreement;
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ORDERS the Parties and the COCL (by ordering the City of Portland to so direct the COCL) to appear before the Court at periodic hearings, to be held approximately annually, unless otherwise ordered by the Court, to describe to the Court the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end, to respond to the Court’s questions on these issues, and to present evidence on these issues as so directed by the Court;
ORDERS that the first post-approval periodic hearing be held on Monday, September 14, 2015, at 9:00 a.m. in Courtroom 13B of the Mark O. Hatfield United States Courthouse, in Portland, Oregon; and
ORDERS that this civil action be placed on the Court’s inactive docket, other than for the periodic hearings referenced in this Order or otherwise as may be directed by the Court, and subject to recall to the active docket should the United States move to enforce the Settlement Agreement.
The Parties’ Joint Motion to Enter Settlement Agreement (ECF No. 3) and alternative Joint Motion to Enter Settlement Agreement (ECF No. 77) are GRANTED IN PART AND DENIED IN PART, as set forth in this Order.
IT IS SO ORDERED. DATED this 29th day of August, 2014.
/s/ Michael H. Simon Michael H. Simon United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF PORTLAND, Defendant.

Case No. 3: 12-cv-02265-SI
AMENDED ORDER ENTERING SETTLE1\1ENT AGREE1\1ENT, CONDITIONALLY DISMISSING LITIGATION, AND SETTING FIRST ANNUAL STATUS CONFERENCE

Billy J. Williams, Acting United States Attorney; Adrian L. Brown, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Vanita Gupta, Principal Deputy Assistant Attorney General; Judy Preston, Acting Chief; Laura Coon, Special Counsel; R. Jonas Geissler, Senior Trial Attorney, Brian Buehler, Trial Attorney, Special Litigation Section; David W. Knight, Trial Attorney, Disability Rights Section, Civil Rights Division, UNITED STATES DEPARTivffiNT OF JUSTICE, 500 Pennsylvania Avenue, NW, Washington, D.C. 20530. Of Attorneys for Plaintiff.
Tracy Reeve, City Attorney; David Woboril, Senior Deputy City Attorney; Ellen Osoinach, Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 S.W. Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant.
Anil S. Karia, TEDESCO LAW GROUP, 3021 N.E. Broadway, Portland, OR 97232. Of Attorneys for Intervenor-Defendant Portland Police Association.
J. Ashlee Albies, CREIGHTON & ROSE, P.C., 500 Yamhill Plaza Building, 815 S.W. Second Avenue, Portland, OR 97204; Shauna M. Curphey, CURPHEY & BADGER, P.A., 520 S.W. Sixth Avenue, Suite 1040, Portland, OR 97204. OfAttorneys for Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform.

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Michael H. Simon, District Judge. The United States of America ("Plaintiff" or ''United States") brought this lawsuit
against the City of Portland ("Defendant" or "City of Portland") under 42 U.S.C. § 14141. The United States and the City of Portland have entered into a proposed Settlement Agreement ("Settlement Agreement") and have jointly moved the Court to accept the Settlement Agreement and enter the Settlement Agreement as an Order of the Court. Both the United States and the City of Portland agree that entering into the Settlement Agreement, rather than engaging in contested litigation, is the best way to resolve the claims brought by the United States in this matter, which concern policing practices in the City of Portland primarily with respect to persons with actual or perceived mental illness. Both the United States and the City of Portland further agree that it will likely take several years, possibly as many as five years, for the City of Portland substantially to comply with all of the provisions of the Settlement Agreement. In addition, both the United States and the City of Portland jointly ask the Court to retain jurisdiction over this action for all purposes until the City of Portland substantially has complied with all provisions of the Settlement Agreement and maintained substantial compliance with all provisions for one year.
At the Court's request, the United States, the City of Portland, IntervenorDefendant Portland Police Association ("PPA"), and Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform ("AMA Coalition") engaged in mediation. The mediation produced two separate agreements: a Memorandum of Agreement ("MOA'') between the United States, the City of Portland, and the PPA; and a
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Collaborative Agreement ("CA") between the United States, the City of Portland, and the
AMA Coalition.
The question before the Court is whether the Settlement Agreement, as a whole, is
fair, adequate, and reasonable as a means of resolving the claims raised in the Complaint.
To assist the Court in answering that question, the Court held a Fairness Hearing on
February 18 and 19, 20i4, and received written submissions and oral testimony from the
United States, the City of Portland, Intervenor-Defendant PPA, Enhanced Arnicus Curiae
AMA Coalition (collectively the "Parties"), and numerous members of the public,
pre-hearing, during the hearing, and post-hearing.
Following the Fairness Hearing, the Court directed several questions to the
Parties. One question asked by the Court was:
Question 12: A number of police departments provide officers with "on-officer recording systems" (also known as "body cameras," "body cams," or "cop cams"), which are small, pagersized cameras that clip onto an officer's uniform or glasses or are worn as a headset. These devices record audio and video of the officer's interactions with the public. Please explain whether requiring these devices would promote the objectives of the Agreement and, if so, why such a requirement was not included.
ECF No. 61, pp. 7-8. In response to this question, the United States stated:
The United States has not required that all PPB officers wear body cameras, but the Agreement does not prohibit the City from using body cameras. Currently, the City records many of its interactions through mobile video recorders, handheld radio transmissions, and GPS locations. It is our understanding that the City is willing to engage in use ofbody cameras to the extent that the technology is dependable and that its use is affordable. Ifthe City utilizes body cameras, the City must carefully govern their use to protect the rights of subjects and bystanders, e.g., providing Miranda warnings when appropriate and respecting reasonable expectations of privacy.
The determination to include or exclude body cameras from the Agreement is driven by a number of factors. While technology
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limitations, concerns about privacy rights, and appropriateness of remedy may weigh on such considerations, the ultimate compromise reached in this case is the product of negotiation and subject to settlement privilege. ECF No. 63, pp. 20-21 (emphasis added). The Court notes that as the technology in this area continues to improve and become more dependable and affordable, more city police departments in the United States are choosing to employ this technology in ways that protect both law enforcement officers and the public they serve. Notwithstanding these positive developments, the fact that the Settlement Agreement does not contain such a requirement does not justify the rejection of the Settlement Agreement. After reviewing the Settlement Agreement and considering the views of the Parties and all public comments received, the Court finds that the Settlement Agreement, as a whole, is fair, adequate, and reasonable to address the claims raised in the Complaint and, accordingly, hereby: ORDERS that the Settlement Agreement shall be and is entered as an Order of the Court; ORDERS that the Complaint is conditionally dismissed without prejudice pursuant to Rule 41 (a)(2) of the Federal Rules of Civil Procedure; ORDERS that the Court retain jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1345, to enforce any provision of the Settlement Agreement or the MOA upon request ofthe parties thereto; ORDERS that the City of Portland direct the Compliance Officer/Community Liaison ("COCL"), a position created under the Settlement Agreement, to provide copies to the Court in a timely fashion, or that the City of Portland do so itself, of all final quarterly reports, which are referenced in the Settlement Agreement;
I -q
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ORDERS the United States, the City, a voting member ofthe Community Oversight Advisory Board (COAB) chosen by the COAB, a group created under the settlement agreement, and the COCL (by ordering the City of Portland to so direct the COCL and the COAB) to appear before the Court at annual status conferences to describe to the Court the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end and to respond to the Court's questions on these issues;
ORDERS the United States, the City, and the PPA to also appear before the Court at the annual status conferences to describe to the Court the status of the MOA;
ORDERS the United States, the City, and the AMA to also appear before the Court at the annual status conferences to describe to the Court the status of the CA and to respond to any questions by the Court;
ORDERS that the first post-approval status conference be held on Monday, September 14, 2015, at 9:00 a.m. in Courtroom 13B of the Mark 0. Hatfield United States Courthouse, in Portland, Oregon; and
ORDERS thatthis civil action be placed on the Court's inactive docket, other than for the annual status conferences referenced in this Order or otherwise as may be directed by the Court, and subject to recall to the active docket should the United States move to enforce the Settlement Agreement.
Ill Ill Ill Ill Ill Page 5 - ORDER ENTERING SETTLEMENT AGREEMENT

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The Parties' Joint Motion to Enter Settlement Agreement (ECF No. 3) and alternative Joint Motion to Enter Settlement Agreement (ECF No. 77) are GRANTED ill PART AND DENIED ill PART, as set forth in this Order.
IT IS SO ORDERED.
DATED this J-,V .J-:". day of \__, ,;I'1
\
Michael H. Simon United States District Judge

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Submitted By: All Counsel of Record

J- ./:;I
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1 ER-89

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF OREGON

3 UNITED STATES OF AMERICA,
4 Plaintiff,
5 vs.
6 THE CITY OF PORTLAND,
7 Defendant.
8

) 3:12-cv-02265-SI ) ) ) ) October 25, 2016 ) ) ) ) Portland, Oregon

9

10

11

12

13

TRANSCRIPT OF PROCEEDINGS

14

(Status Conference)

15

BEFORE THE HONORABLE MICHAEL H. SIMON

16

UNITED STATES DISTRICT COURT JUDGE

17

18

19

20

21

22

23

24

25

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1

APPEARANCES

2 FOR THE UNITED STATES:

Bill Williams

3

Adrian Brown

United States Attorney's Office

4

1000 SW Third Avenue, Suite 600

Portland, Oregon 97204

5

6

R. Jonas Geissler

Laura Coon

7

U.S. Department of Justice

950 Pennsylvania Avenue, NW

8

Washington, DC 20530

9

10 FOR THE CITY OF PORTLAND:

11

Ellen C. Osoinach

Judy S. Prosper

12

Mark P. Amberg

Office of the City Attorney

13

1221 SW Fourth Avenue, Suite 430

Portland, Oregon 97204

14

15

16 FOR THE PORTLAND POLICE ASSOCIATION:

17

Anil Karia

Public Safety Law Group

18

3021 NE Broadway

Portland, Oregon 97232

19

20

21

22

23

24

25

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3 ER-91

1

APPEARANCES (Continued)

2

3 FOR ENHANCED AMICUS CURIAE:

4

Jessica Ashlee Albies

Creighton & Rose, PC

5

65 SW Yamill Street, Suite 300

Portland, Oregon 97204

6

Kristen Chambers

7

Kirklin Thompson & Pope LLP

1000 SW Broadway, Suite 1616

8

Portland, Oregon 97205

9

10

11

12

13

14

15

16

17

18

19

20

21

22 COURT REPORTER: 23 24

Dennis W. Apodaca, RDR, RMR, FCRR, CRR United States District Courthouse 1000 SW Third Avenue, Room 301 Portland, OR 97204 (503) 326-8182

25

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4 ER-92

1

(October 25, 2016)

2

P R O C E E D I N G S

3

(American Sign Language Interpreters Richard Hall

4 and Andrea Medlock were sworn by the clerk.)

5

(Open court:)

6

THE COURT: Mary, would you please call the case.

7

THE CLERK: Your Honor, this is the time set for a

8 status conference in civil case 12-2265-SI, USA versus City of

9 Portland.

10

Can I have plaintiff's counsel begin by stating your

11 appearances for the record. Then we will go on down the side

12 of the table.

13

Thank you.

14

MR. WILLIAMS: Good afternoon, Your Honor.

15 Bill Williams on behalf of the United States Attorney's Office.

16

THE COURT: Welcome.

17

MS. COON: Good afternoon, Your Honor. My name is

18 Laura Coon. I am special counsel with the Civil Rights

19 Division of the Department of Justice here on behalf of the

20 United States.

21

MS. BROWN: Good afternoon, Your Honor. Adrian Brown

22 for the United States.

23

MR. GEISSLER: Good afternoon, Your Honor.

24 Jonas Geissler from the Civil Rights Division for the United

25 States.

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5 ER-93

1

MS. ALBIES: Good afternoon, Your Honor.

2 Ashlee Albies for the enhanced amicus, Albina Ministerial

3 Coalition for Justice and Police Reform, and with me is

4 Dr. LeRoy Haines.

5

THE COURT: Welcome.

6

MR. KARIA: Anil Karia for the Portland Police

7 Association.

8

MS. OSOINACH: Ellen Osoinach on behalf of the City

9 of Portland.

10

MS. PROSPER: Good afternoon, Your Honor.

11 Judy Prosper, City of Portland.

12

MR. AMBERG: Mark Amberg on behalf of the City of

13 Portland.

14

THE COURT: Welcome.

15

I would also like to welcome to the courtroom the

16 distinguished mayor, Mr. Charlie Hales. Chief of Police

17 Marshman, welcome. Commissioner Amanda Fritz and City Auditor

18 Mary Caballero, welcome. To everyone else who is taking time

19 out of their day to attend this hearing, I thank you.

20

What we will do, unless someone has a --

21

Yes.

22

MS. OSOINACH: Your Honor, I want to state that

23 IPR Director Constantin Severe is here as well, and you might

24 want to recognize him.

25

THE COURT: Yes. My apologies. Thank you.

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6 ER-94

1

Mr. Severe, thank you very much. I apologize.

2 Welcome to the IPR director. Thank you.

3

Unless anyone has any alternative suggestions, I

4 think it might be useful to go in the following order: First,

5 hearing from the plaintiff, United States; followed by

6 Defendant City of Portland through their counsel; followed by

7 intervenor, the Portland Police Association, through their

8 counsel; followed by amicus Albina Ministerial Coalition. Then

9 after that, hearing comments from COCL, the Compliance Officer

10 and Community Liaison.

11

At some point, probably about an hour and a half from

12 now, give or take, at an appropriate time I am going to have

13 probably about a ten-minute recess or so. Then if there are

14 members of the public who wish to be heard on any of these

15 matters, just make yourself known to my courtroom deputy,

16 Mary Austad, during that break, and she will keep a list of

17 your names.

18

Is there anyone else that I have left out that we

19 should be hearing from soon or any suggestions for an

20 alternative order?

21

Ms. Prosper.

22

MS. PROSPER: The COAB representative is also here.

23

THE COURT: Yes, of course. Who will be speaking for

24 the COAB?

25

MS. PROSPER: Mr. Tom Steenson.

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7 ER-95

1

THE COURT: Excellent. Very good.

2

Maybe we will do after the Albina Ministerial

3 Coalition, we will go to either the Compliance Officer and

4 Community Liaison and then the COAB, or if someone thinks we

5 should reverse that, let me know, and that will be fine. Then

6 after that, we will move to members of the public who wish to

7 be heard.

8

Any alternative suggestions or objections to that

9 procedure?

10

All right. Seeing no hands or hearing no voices, the

11 United States may proceed.

12

MR. GEISSLER: Thank you, Your Honor. Shall I take

13 the podium or would Your Honor prefer here?

14

THE COURT: Whichever you prefer.

15

MR. GEISSLER: For the sake of my eyes, I think I

16 will take the podium.

17

THE COURT: Wherever you prefer.

18

MR. GEISSLER: Your Honor, again I'm Jonas Geissler

19 for the United States. My colleague, Adrian Brown, and I have

20 a division of labor by topic area to report compliance with the

21 settlement agreement. However, Your Honor, I would like to

22 start today with an overview.

23

The purpose of this case was to remedy violations of

24 the Fourth Amendment rights of individuals to be free from

25 unreasonable uses of force; namely, by way of law enforcement

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8 ER-96

1 officers' use of force against predominantly individuals with

2 mental health issues or perceived mental health issues.

3

Because of that focus on people with perceived mental

4 illness or actual mental illness, the remedies in this case

5 touch not just upon the Portland Police Bureau, but also other

6 aspects of the City. Though this case names the City as the

7 defendant and the case focuses on those individuals, the

8 remedies are more expansive.

9

We negotiated, and this Court found fair, reasonable,

10 and adequate an agreement that placed many responsibilities

11 squarely where they belonged, on the shoulders of the Portland

12 Police Bureau, but also shared some of those responsibilities

13 with other city agencies; namely BOEC.

14

There has been progress since this case began. When

15 we started, PPB had ten officer-involved shootings or critical

16 incidents per year. In 2015, there was one. In 2016, there

17 was one. There are more people alive today because of the

18 remedies already imposed in this case.

19

When this case started, PPB had given its officers

20 crisis intervention training -- 40 hours for all officers --

21 but there were still unreasonable force events for people with

22 mental health crises. Today, the Behavioral Health Unit

23 programs have expanded, and as my colleague Adrian Brown will

24 describe, we have given provisional approval to PPB's Enhanced

25 Crisis Intervention program.

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9 ER-97

1

While there is still work to do in this area,

2 including BOEC training and community-based mental health

3 services, the PPB response so far has been much more swift in

4 this particular area of remedies for this case.

5

There is still a need for improvements. In our

6 findings, we called confusing -- the accountability system --

7 "Byzantine." Today, the accountability system is more

8 expeditious, but is no less confounding and frustrating to both

9 the complainants and the officers involved.

10

The COAB -- the experiment in community oversight for

11 a settlement agreement that we began with in this settlement

12 agreement before others began poorly and quickly became worse.

13 The lack of training, volunteer fatigue, infighting have

14 plagued the COAB and called for an examination for how to best

15 fix the COAB going forward.

16

For the topic areas going forward, Your Honor, I will

17 speak about force, training, Employee Information System, and

18 accountability. My colleague will speak to mental health,

19 crisis intervention, and community engagement.

20

Before we go over compliance, a note about

21 methodology, this most recent compliance report covers the

22 period of August 30th, 2015 through August 29th, 2016. The

23 report is based upon our direct observations. We went and saw

24 the training. We went to meetings, to roll calls, on

25 ride-alongs.

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1

This is also based upon interviews directly with the

2 community and with memberships of PPB and the City,

3 contributions from the COAB, contributions from members of the

4 COAB individually, assessments by the COCL contained in its

5 reports, and documents produced by the City in response to our

6 requests as well as our direct examination of documents as we

7 visited sites.

8

For use of force, Your Honor, what does the

9 settlement agreement ask PPB to do? Principally it asks PPB to

10 use force only in an objectively reasonable manner, to provide

11 full and accurate reporting by those who use force, and

12 on-scene investigations by first-line supervisors. It then

13 asks that those on-scene investigations be sent up the chain of

14 command for quality control and then an audit of those on-scene

15 investigations to better improve the system.

16

Results of these goals have been varied; varying

17 levels of success. PPB members have made a devoted effort to

18 force reporting and investigations. The governing policy for

19 force, 1010.00, which we preliminarily approved before the

20 effective date of this agreement on October 30th, 2013, now

21 stands for revision. Why? Officers need clear guidance on

22 what actions to take and what actions to avoid, when force is

23 authorized, and what the reporting requirements are. Sergeants

24 need guidance on how to accomplish the on-scene investigations,

25 to not accomplish them ad hoc, but to have a consistent system

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1 across the entire bureau.

2

PPB currently has a reporting standard for uses of

3 force that omits very low levels of use of force. PPB does not

4 require reporting of all levels of the use of force, as

5 required by the settlement agreement's expansive definition.

6

PPB's current force data collection report, its force

7 report, also excludes firearm discharges. Though, the PPB

8 thoroughly investigates and reports on firearm discharges, the

9 exclusion from the form of firearm discharges became a

10 principal point of discussion between the City and the

11 United States going forward that has affected the timeline for

12 review of that policy.

13

Applying PPB standard to capture a wide range of

14 force -- that is most everything in between the very low levels

15 and the firearm discharges -- force has decreased significantly

16 over time since this investigation began. Though ECW --

17 meaning Electronic Control Weapon -- the use of Tasers has

18 increased in the past, supervisors have justified the use of

19 ECW in their investigative reviews rather than limit its use.

20

Officers have also not appreciated the five-second

21 rules on ECWs. That is, five seconds is one discharge, and if

22 one continues to hold down the trigger, and it goes longer than

23 five seconds, that counts as a second discharge. There is a

24 software fix that can be used for the ECWs to limit it to a

25 five-second discharge. But whether or not that's all for

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1 limitations put in place, the current ECWs that PPB uses

2 officers frequently report have operational issues. There are

3 equipment failures.

4

There is a pendulum on use of force reporting

5 investigation on scene. When we first began the investigation,

6 the pendulum was swung all to way to barely any on-scene

7 investigations for most uses of force. Now it swung the other

8 direction into extreme on-scene reporting and investigation of

9 uses of force.

10

Sergeants show up to the scene and fill out what we

11 call 940 reports or after-action reports, dubbed for the policy

12 that PPB uses. Those 940s go through an audit process. What

13 has ended up happening is that lieutenants and captains now

14 spend time regurgitating the entire investigation that the

15 sergeant does. This burns valuable time, and it also delays

16 the final outcome of the 940, thus making it less effective.

17

Going forward, we need to work with the COCL and the

18 PPB to resolve an easier way, if you will, but just as

19 effective a way for lieutenants and captains to review those

20 reports without repeating everything, capturing those things

21 which need to be corrected and sending them back, but without

22 redoing the investigation.

23

Over the next two days the City and the COCL and the

24 United States intend to meet with the United States police

25 practices consultant to go over a new draft 1010.00, the force

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1 reporting policy/the force governing policy with the City to

2 try to arrive at a solution to many questions about the

3 currently existing 1010.00.

4

For training, Your Honor, the Portland Police Bureau

5 and the City has placed a high priority on training. Portland

6 has a highly skilled, intelligent cadre of officers. It has a

7 beautiful training facility. It has devoted time in officers'

8 schedules each year to go to in-service training. But that

9 training has not been well informed by the community whom the

10 police serve. The academy needs to take some next steps. The

11 academy has asked for and does not yet have up and operational

12 a training management software, and the police bureau suffers

13 for the City's lack of having gotten it.

14

We have approved the training policy, 1500, and the

15 850 series of policies concerning crisis intervention. With

16 our plan to address 1010 and other force policies in short

17 order, our goal is to have the policies up in time for the

18 January 2017 start of in-service training.

19

The PPB has recently reconvened the Training Advisory

20 Committee, the TAC. The TAC produced a written report with

21 recommendations. TAC has asked for and should receive now

22 responses to those recommendations. It is the means by which

23 the public has direct input into the training material and the

24 effective training on PPB officers.

25

Your Honor, the EIS, or Employee Information System,

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1 sometimes called an early warning system, sometimes called a

2 risk management system. The EIS should act to effectively

3 mitigate risk, to mitigate the risk against civil rights

4 violations among those civilians that the police serve, and to

5 mitigate risk of career-ending behavior by police officers.

6

How does the EIS work? It should work when one tries

7 to find the normal behavior among officers in a peer group,

8 particularly with respect to force and then identify the

9 outliers among those peers and then bring them back to the

10 normative levels.

11

PPB, as EIS, is very sophisticated in many ways. It

12 collects a lot of data. It is essentially a data warehouse.

13 But based upon the samples which we reviewed going into actual

14 EIS entries for officers, they do not necessarily mitigate

15 risk. As an example, an officer who we will not name was

16 recently terminated with respect to an alcohol issue. The

17 issue was known to the PPB. The PPB had definitely addressed

18 it in some respects in the past, but PPB had not used the EIS

19 as a tool to track and mitigate that risk between supervisory

20 positions between assignments.

21

Ultimately, the EIS in review did not have any

22 mentions of that issue for that officer, but that officer was

23 terminated for that issue. This is the sort of the

24 career-ending behavior that a risk mitigation tool should

25 capture.

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1

The PPB's EIS system right now cannot compare between

2 finer levels of groups and assignments among PPB. For example,

3 among the specialized unit, there is a gang unit. The gang

4 unit has the highest uses of force generally. The PPB's EIS

5 can compare between the overall command -- all of East, all of

6 Central and all of the command over the gang unit, but cannot

7 compare between distinct shifts and distinct groups like the

8 gang unit. This then doesn't mean the settlement agreement's

9 mandate, but also doesn't allow the risk mitigation to

10 determine whether or not units, as a whole, are outside the

11 normative level of their peer units.

12

Once triggered, that is crossing a threshold that

13 causes an EIS review. The response is a narrative. PPB's EIS

14 system has a discussion tracker. It is a database which allows

15 the supervisor to input a review of his or her subordinates.

16 The discussion tracker right now does not record -- based on

17 our sample -- corrective action. We found supervisors did not

18 always address problematic behavior or uses of force that were

19 problematic among their subordinates.

20

Typical EIS responses should be and sometimes are

21 closer management supervision; counseling -- externally or

22 internally; retraining. Because the PPB's academy does not

23 have the training software up-to-date, that retraining tool

24 that could be used in EIS is hindered, not altogether, but

25 hindered.

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1

Accountability, Your Honor. Colloquially we would

2 say that an accounting system should be designed to give a fair

3 shake to all involved here. A complainant should be heard,

4 their complaint investigated to a resolution, and officers

5 should be accorded some due measure of due process and be able

6 to come out from under the power of an allegation, which they

7 feel may be fair or unfair.

8

Organizationally an accounting system should engender

9 trust and faith in the police. In this reporting period IPA

10 and IR have significantly increased the speed with which they

11 process investigative complaints. PPB investigates criminal

12 allegations largely concurrently with administrative

13 investigations.

14

For the sake of all those watching today, the

15 distinction being, criminal investigations are those which the

16 detectives investigate for criminal prosecution, administrative

17 investigations are those which could be policy violations that

18 an employer like PPB may seek to discipline an officer for.

19

There is at least one officer walk-through for each

20 officer-involved shooting in this assessment period that is a

21 single designated witness officer along with PPB counsel

22 performed a walk-through that is significant and is a step

23 forward and part of what we asked for in the settlement

24 agreement. However, it is not a contemporaneous walk-through

25 by law officers. It is not a contemporaneous public safety

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1 statement.

2

PPB has asked involved officers to give voluntary

3 statements shortly after officer-involved shootings. That is

4 precisely what the settlement agreement mandated -- was the

5 asking. Each time, however, the officers decline. We believe

6 a public safety statement is the professional standard, absent

7 an objectively reasonable belief of self-incrimination by the

8 officer providing the on-scene public statement.

9

There are challenges going forward. The system has

10 to be credible to the community and to the police members

11 themselves. It is a basic principle, as I pointed out in

12 teaching the COAB at one point, Robert Peel's base principles

13 of policing.

14

The greater the officer's ability to persuade and the

15 greater the community trust, the less force police will have to

16 use. Conversely, when there is no trust, when police are left

17 with fewer options, there is more force, more risk of injury to

18 the civilians and to the officers, lower community

19 participation in investigations, and a lower clearance rate. A

20 trustworthy accountability system requires accountability at

21 all levels.

22

There is an accountability resolution that we need to

23 reach. We gave notice to the City in May of 2015 that it ought

24 to engage in a comprehensive accountability reform. We are not

25 there yet. We need to reach a timely resolution on

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1 accountability reform from soup to nuts, from beginning to end.

2

With that, Your Honor, I would like to turn it over

3 to my colleague, Adrian Brown, unless you have questions with

4 respect to these sections.

5

THE COURT: Well, I do have some general questions

6 for the United States, but I will wait until after I hear from

7 Ms. Brown.

8

MR. GEISSLER: Thank you, Your Honor.

9

MS. BROWN: Thank you, Your Honor.

10

THE COURT: Welcome.

11

MS. BROWN: Thank you. Counsel, distinguished

12 guests.

13

I want to start with an overview of community mental

14 health and proceed to crisis intervention and then discussing

15 community engagement.

16

Community mental health, as noted in paragraph 88 of

17 our settlement agreement, really deserves unqualified credit to

18 the Portland Police Bureau for its leadership in initiating

19 discussions with system partners. The United States noted in

20 this aspect of the settlement agreement that this is an area

21 that is not mainly the City's responsibility. It has engaged

22 with system partners in efforts to bridge these gaps in

23 community mental health services, and such services are the key

24 focus of the State's long-awaited performance plan to improve

25 mental health services with adults, particularly those with

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1 serious mental illness.

2

This is a different agreement that the DOJ has been

3 working on with the State, and the State presented its plan to

4 the Department of Justice this past summer, and we approved its

5 plan in July. The State has committed an aggressive three-year

6 implementation plan, and PPB did not miss a beat in stepping up

7 to the plate. The State has formed a behavioral health

8 collaborative of system partners, which will involve a series

9 of meetings that will start in July and go through December.

10 PPB stepped up to not only apply to be on that collaborative,

11 but is now devoting resources to continue to hold the State

12 accountable, and we have continued to assert that all system

13 partners hold the State accountable for what it has committed

14 to in this plan.

15

As noted in paragraph 89 of our report, the PPB's

16 leadership in this area has stood out immensely in its push for

17 the opening of the Unity Center for Behavioral Health. While

18 we all know that this will not be a fix to the problems, the

19 plethora of problems created by a weak infrastructure of

20 community-based services, it is intended to provide an

21 emergency psychiatric service, which is a unique particular

22 setting that is not currently available in the City of

23 Portland, along with linkages to co-located system partners.

24

In this regard PPB deserves praise for extensively

25 working with Unity and other systems partners in creating

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1 particular transportation protocols. These protocols will

2 provide transportation of certain persons on mental health

3 holds by ambulance rather than by patrol car. To support this

4 protocol, PPB didn't just stop at initiating discussions with

5 Unity. They also engaged the state legislature to support the

6 necessary rule changes. That dedication deserves notice.

7

In regards to crisis intervention, as my colleague

8 Mr. Geissler pointed out, we have granted the City provisional

9 substantial compliance with this section, Section 6. PPB does

10 indeed deserve praise for the work in its creation of the

11 Behavioral Health Unit.

12

This is a team of officers that includes both the

13 behavioral health response teams, which involved the pairing of

14 a clinician with Project Respond along with a specially trained

15 officer to follow up on referrals made, not only by officers in

16 the field, but by clinicians, by members of the community, as

17 the BHU has provided to us basically anyone can provide a

18 referral to them.

19

But the BHU also involves coordination of the

20 Bureau's ECIT officers as well as its advisory committee. The

21 advisory committee is made up of system partners from nonprofit

22 service providers, advocacy organizations, as well as state and

23 local mental health officials and peer advisers.

24

The BHU should be commended for its dedication of

25 working as well with training personnel in developing a robust

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1 40-hour enhanced crisis training program.

2

As Mr. Geissler mentioned, part of our monitoring

3 duties has been to observe trainings. We participated in

4 observing the entire 40 hours of this training program, along

5 with other partners -- the COCL, a member of the COAB, a member

6 of the BHU advisory committee observed this training.

7

In addition to the 40 hours that PPB reports that all

8 officers receive through the basic and advance academies, this

9 40-hour enhanced crisis intervention training is something that

10 really makes the Behavioral Health Unit stand out in its

11 efforts in working to include the most up-to-date resources and

12 information for officers that are responding to mental health

13 calls.

14

However, despite this commendable work, Portland

15 continues to establish its crisis intervention team program.

16 It needs to meet all the core competencies of the Memphis

17 model. We are not there yet. Right now, PPB specifically

18 sends specially trained officers to a specific subset of mental

19 health calls. The Memphis model, for example, sends specialty

20 officers to all mental health calls.

21

We are currently as a provisional status, as PPB

22 continues to determine whether or not its hybrid model does

23 meet those Memphis base core competencies. To their credit,

24 they have engaged in an extensive effort to determine whether

25 or not the types of calls that all officers go on that relate

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1 to mental health calls that are not reserved for the specially

2 trained are handled as adequately as those by the specially

3 trained officers.

4

We are in consultation with a renowned expert in this

5 field, Dr. Mark Munetz. He is the founder of the Memphis base

6 model. We are very privileged to have him. He spent time

7 again this year, as he did last year, in Portland and working

8 with their assessment of their system. In particular, as

9 Mr. Geissler pointed out, he assessed the BOEC, the Bureau of

10 Emergency Communications' 911 call center and how their

11 dispatchers and call takers are being trained in the future for

12 the crisis triage that they engage in.

13

So those two things: The BOEC crisis triage as well

14 as assessing whether or not PPB is adequately responding to all

15 mental health calls are the two big areas that the DOJ will

16 continue to assess in our provisional approval.

17

Of note, Mr. Geissler pointed out that we conduct

18 interviews as part of our assessment for compliance. I think

19 it is in particular of note to the Court that in this area,

20 regarding community mental health and crisis intervention, we

21 reach out to all partners. Not only do we realize that it is

22 not just the City of Portland that is responsible for making

23 sure persons with mental health are being engaged in a way that

24 protects their civil rights, but we also understand that the

25 state and local officials, all the way from police officers to

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1 the sheriff's office to the disability rights organization and

2 NAMI advocacy organizations, that everyone all works together.

3

We know that this is a big area that still needs

4 improvement, and part of our effort in the

5 U.S. Attorney's Office, generally speaking, is to engage the

6 community and make sure that we know where those gaps can be

7 bridged. That is part of our effort, not in this case, but

8 just in a larger effort with the U.S. Attorney's Office. So I

9 think it is important that everyone understand that we are

10 always looking for stakeholder input on how things can be

11 improved.

12

Then finally, Your Honor, I'll turn to community

13 engagement. As noted throughout Section 9 of our compliance

14 report, the City faces significant barriers in its effort to

15 build a sustainable platform for civilian oversight and for the

16 efforts to monitor the implementation of this agreement.

17

While our assessment for this status conference runs

18 from August to August, as Mr. Geissler mentioned, it would be

19 imprudent for the United States to not note the status of the

20 City's efforts at this stage, particularly given the

21 non-compliance rating that we've provided to the Court.

22

THE COURT: And you know I was going to ask you about

23 that.

24

MS. BROWN: Yes, sir.

25

Based on a variety of factors, as we reported in our

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1 assessment, there was dysfunction within the COAB, to the

2 extent that the City asked for a 60-day recess of COAB

3 meetings. The landscape was constantly changing at that time,

4 whether it be from members resigning, civil unrest at the

5 meetings, concerns regarding where meetings should take place,

6 how meetings should occur, to ensure the safety of everybody.

7 At that point in time it was the United States' understanding

8 that if you gave the City 60 days, that we would have a

9 proposal about how to restructure the COAB.

10

THE COURT: And the 60 days expired a few days ago,

11 right?

12

MS. BROWN: The 60 days has expired, yes, Your Honor,

13 as of Friday.

14

Now, while the City acknowledged that it has provided

15 us a framework for a proposal as of October 12th, we do not

16 have a fully baked proposal from the City, and to some degree

17 the City's effort on that part was intentional in order to have

18 the United States, the Portland Police Association, and the

19 AMAC involved in how to fill in that frame. However, we were

20 expecting to be much farther along than we are now at the

21 60-day point. I think everyone was expecting to be further

22 along. I think the City would acknowledge that they expected

23 to be further along. It just didn't happen.

24

In a meeting last Friday, the City has committed to

25 hiring a facilitator to further the discussion amongst the

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1 parties at the counsel table here, including the PPA and the

2 AMAC, and the United States certainly looks forward to

3 participating in those meetings.

4

However, we urge the City, the PPA, and the AMAC to

5 find common ground together to make a sustainable platform for

6 community engagement. That platform must last well beyond the

7 United States' investment in this case and the expiration of

8 the settlement agreement.

9

To that end, however, we are still before the Court,

10 and we are at the stage where we are wanting to know what is

11 going to happen, how it is going to happen, when it is going to

12 happen. Because we do not have additional answers at this

13 point at the 60-day mark, we do ask the Court to schedule a

14 couple of different status conferences.

15

To all fairness and candor to the Court, this was a

16 suggestion that we just recently made known to the other

17 parties an hour or so before the hearing, but we saw it as a

18 way forward, given the rating of non-compliance. In 30 days,

19 we would ask Your Honor to hold an additional status conference

20 to which the City and the parties involved here can provide the

21 Court how things are moving forward with the restructuring of

22 the COAB.

23

In addition to checking in on that area, we would

24 also request that the Court schedule an additional status

25 conference in 90 days. That would be in the effort to assess

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-2, Page 116 of 301 26 ER-114

1 where the parties are at under paragraph 175 of the

2 settlement agreement, and I would like to make note really

3 quick in regards to paragraph 175, just for everyone's

4 edification, this paragraph allows time for reflection,

5 negotiation, and possible amendments to the settlement

6 agreement.

7

It is largely in order to determine whether or not

8 the settlement agreement is achieving its desired outcomes. In

9 essence, it is an effort to have a court correction, where

10 necessary.

11

So this second status conference that the

12 United States is requesting to be had in 90 days would be the

13 effort on our part to provide the Court with a status update on

14 where we are at with any further conversations with the City in

15 regards to additional amendments, if any are necessary, and

16 where we are at in furthering that process along.

17

In the meantime, as I mentioned previously, we are

18 interested in stakeholder input in this regard. We have

19 dedicated an e-mail link or an e-mail address, which community

20 members, stakeholders from all avenues, whether it be advocacy

21 organizations, individuals, law enforcement, and that e-mail is

22 community.portland@usdoj.gov.

23

THE COURT: Say that one more time.

24

MS. BROWN: It's community.portland@usdoj.gov. This

25 is not a new e-mail address. This is an e-mail address that we

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1 have had open to the public since the beginning of our case,

2 but we wanted to highlight it again here, because, in

3 particular, we're looking for input on paragraph 175 and the

4 outcomes that the agreement intended to achieve and whether or

5 not those have been met.

6

Thank you.

7

THE COURT: Thank you.

8

All right. Let me follow up with you, Ms. Brown and

9 Mr. Geissler. I want to make sure we're all on the same page,

10 because I think what I'm about to ask is consistent with what

11 you've just been describing in the last few minutes.

12

It's my understanding under the settlement agreement,

13 and so I'm going to ask you if you agree or disagree, and

14 obviously any of the parties will be able to weigh in on this

15 when it is their turn to speak.

16

It is my understanding under the settlement

17 agreement, beginning with the enforcement section, Section 178,

18 that this Court retains jurisdiction over this action until the

19 City has substantially complied with all provisions of the

20 agreement and has maintained substantial compliance with all

21 provisions for one year.

22

In addition, the United States has the right to seek

23 enforcement of the provisions of this agreement if it

24 determines that the City or the Portland Police Bureau have

25 failed fully to comply with any provision of this agreement.

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1

Now, if the United States does believe that the City

2 has failed to implement the terms of the agreement, there are a

3 number of steps that needs to take place. One is that the

4 United States promptly notifies the City in writing, identifies

5 and specifies the portion or portions of the agreement about

6 which the United States has concerns. Then there is

7 discussion. There's an opportunity even for mediation. But if

8 the mediation fails to resolve the concerns, then the

9 United States or the City may file a motion with this court to

10 enforce compliance with the terms of the agreement or to seek a

11 declaration regarding the meaning of any particular provision

12 of this agreement.

13

The Court will then determine, after appropriate

14 hearing, whether or not the agreement has been breached or what

15 the meaning of any particular provision in the agreement

16 requires. And if the Court determines that a provision of the

17 agreement has been breached, this Court has the power to issue

18 an appropriate remedy.

19

I want to stop there. Well, I will add one more

20 thing. It is also my understanding that, unless and until

21 there is a motion presented to the Court, either to interpret a

22 provision of the agreement or to determine if the agreement has

23 been breached, until that happens, really the only thing that

24 this court is able to do is hear periodic status conferences

25 and hear from the parties how things are going. Then if I

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1 don't receive a motion, then all I can do is receive

2 information and receive input, really from a wide variety of

3 sources. But if a motion were to be filed, then after

4 appropriate due process with respect for everyone's rights, the

5 Court will decide whether or not the agreement has been

6 breached. If not, then I suppose that's the end of that

7 motion. And if so, then the Court has the power to decide on

8 an appropriate remedy.

9

Let me first ask the Government now, do I understand

10 the agreement correctly?

11

MR. GEISSLER: Yes, Your Honor. That's an accurate

12 reading of the agreement.

13

THE COURT: Obviously if any other parties disagree,

14 when it is your turn to speak, you certainly may. I may have

15 some more specific questions for the Government a little bit

16 later, but I would like to hear from the other parties for now.

17

For right now, I appreciate all the effort that the

18 United States has spent on this. By the way, I did thoroughly

19 read the submission by the Government, the second periodic

20 compliance report. I recognize all the hard work that has gone

21 into it. It is very well organized. It is very clear.

22

I think that there are many areas in it that are

23 showing tremendous positive movement forward. As you have

24 identified in your comments, and as I saw consistent with your

25 comments in the written record, there are a few areas of very

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1 serious concern. But we all recognize that this is a

2 multi-year agreement. No one expected all problems to be

3 solved in the first year and, frankly, even the second year.

4 That's why you have in paragraph 175 the opportunity for a

5 comprehensive review after the second year.

6

So I commend the United States for all of its efforts

7 here. I suppose I will ask this question of you, and it is a

8 bit asking you to predict the future. But I'll say this: We

9 know that come January 20th of 2017, we are going to have a new

10 administration. We know that it is one of the hallmarks of

11 this country that we have a peaceful transfer of civilian

12 power.

13

We don't know exactly who will be filling the various

14 positions within the new administration from the top to the

15 other political appointments. But let me ask you, if you can

16 tell me, what does the United States Department of Justice

17 expect with respect to your continuing involvement in this case

18 after we have a new administration?

19

MR. GEISSLER: Your Honor, based on the past record,

20 I suspect that our involvement will continue as it is now. I

21 have been privileged and blessed to have the opportunity to do

22 police cases for almost 13 years now, and I anticipate that our

23 office will continue to do the enforcement on this case just as

24 it does now.

25

THE COURT: Excellent. Very good. Thank you.

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1

All right. Before turning to the City of Portland, I

2 do want to acknowledge our American Sign Language interpreters

3 and also thank the City of Portland. I think this was your

4 idea.

5

Am I right on that?

6

MS. OSOINACH: Yes, Your Honor.

7

THE COURT: Very good. I commend you for that. It

8 is a good idea. We have as American Sign Language interpreters

9 Mr. Richard Hall and Ms. Andrea Medlock. Before I took the

10 bench, the clerk of the court did administer an oath of

11 translation to them. I, again, express my appreciation and

12 commendation to the City of Portland for having that excellent

13 idea. I appreciate it.

14

All right. I look forward to any comments from the

15 City of Portland.

16

MS. OSOINACH: Thank you, Your Honor. Ellen Osoinach

17 appearing on behalf of the City of Portland.

18

I do want to say in response to your gracious

19 comments about the City suggesting American Sign Language

20 interpreters, the City -- specifically those of us sitting at

21 the table -- have come to that conclusion through the hard work

22 of many people, including Philip Wolfe, who is here today, who

23 has certainly provided an education to the City and to those of

24 us at this table about the importance of including multiple and

25 varied forms of communication. So I specifically want to thank

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1 him for his continued efforts to assist the City in being a

2 better partner.

3

THE COURT: You have the Court's appreciation as

4 well.

5

MS. OSOINACH: So I would like to give you a roadmap

6 of what the City would like to present to you today and, of

7 course, to all the members that have attended here today. We

8 have got members from the Albina Ministerial Alliance. I can

9 see members from the mental health association. The League of

10 Women Voters. Kathleen Saadat, who chaired the COAB for so

11 long. Kalei Luyben. We have members from the Portland Police

12 Bureau and from the Bureau of Emergency Communications, and

13 they are all here because they are deeply invested and deeply

14 care about the work that is being conducted under the

15 settlement agreement and about policing in the city of Portland

16 in general.

17

Personally I would like to say that I have benefited

18 tremendously, both as an attorney and certainly as someone who

19 is working on the settlement agreement, from all of the

20 good-hearted and good-faith efforts of everyone in working on

21 this project.

22

So the roadmap today that we would like to talk about

23 is, first of all, the City's response to mental health and

24 crisis intervention and to rightly claim our seat at the table

25 as an emerging national leader on these issues.

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1

Second, I would like to talk about use of force and

2 force investigations and particularly recognize, because this

3 is such a data-driven assessment of our work, I wanted to

4 recognize specifically the work of the analysts who are here in

5 the courtroom today.

6

If you will wave your hands.

7

These are civilians with a tremendous amount of

8 expertise, and they are dedicating that expertise to making

9 policing in Portland better and to supporting the work of the

10 settlement agreement by putting in tremendously long hours in

11 analyzing data so that decision makers and police officers and

12 the Department of Justice and all of the stakeholders here

13 today can better understand on a granular level in a

14 data-driven way what's happening at the City.

15

So after I talk a little bit about force, I know this

16 Court in particular has expressed an interest in body cameras

17 and how they might be deployed, how they might be useful, what

18 are some of the concerns. So Mark Amberg is here to talk about

19 body cameras and the process the City is engaging in to ensure

20 that the body camera adoption and use is meeting the needs of

21 the community as well as officers.

22

The next area I would like to cover is something

23 where I'm hoping to engage in a discussion with

24 you, Judge Simon, about the First Amendment and the robust free

25 speech that we both enjoy in this country and in particular in

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1 the city of Portland and how the desire of people to make their

2 voices known and to participate in the public process has too

3 often, over the course of the last several months, veered into

4 criminal activity and has impaired the rights of those who were

5 denied the opportunity to speak.

6

I would very much like to engage in a discussion with

7 you about your thoughts on that, given your background, of

8 course, but also your work over the course of your career. So

9 that would be very helpful to the City, and I think to all

10 present to have that sort of a discussion.

11

Then we want to address the area of non-compliance,

12 which is the Community Oversight and Advisory Board.

13 Judy Prosper will be addressing the work that the City has

14 done, that we intend to do, and how the challenges that we have

15 experienced we think that we can turn into opportunities,

16 because the challenges that we have experienced have been the

17 result of passionate people wanting to make a difference and

18 sometimes disagreeing about the way forward.

19

But here in Portland, that's the way we do things.

20 We engage all of the stakeholders. Sometimes those discussions

21 are volatile. But we believe that's a strength for the City of

22 Portland and Portlanders, and we want to talk about how we can

23 harness those strengths in moving forward to cure that area of

24 non-compliance.

25

Then finally, I thought that it would be helpful for

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1 this Court in particular to have some demonstrative evidence,

2 not that you don't love talking to attorneys every day, but at

3 my request I asked several people who bravely volunteered to

4 appear on video for me, describing their interactions. So I

5 chose three particular incidents that I think illustrate the

6 very thoughtful and challenging and difficult experiences that

7 people have and how they have overcome what are understandable

8 fears -- both police officers being able to stand in a moment

9 of being fearful and vulnerable and yet still reaching out to

10 connect and, similarly, community members, who in their moment

11 of vulnerability and fear, reached out to police officers.

12

It is not designed to say that everything is just

13 fine, but I thought to provide some context for this Court

14 about what is occurring on our streets today, it would be

15 helpful for you to see that.

16

THE COURT: That's fine. Although let me ask you a

17 procedural question. It is difficult for a court reporter to

18 take down what is said sometimes in a video or an audio

19 recording. So would it be acceptable to the City -- I'll watch

20 that now. We will play that in court. But I would like to

21 relieve the court reporter from any obligation to take that

22 down from the audio and just ask the City at its convenience to

23 submit for the record an appropriate electronic copy of that so

24 we can have that for any record, if need be, but it will not be

25 part of the official court transcript.

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1

Any objection?

2

MS. OSOINACH: No objection.

3

THE COURT: Any objection from any other party?

4

MS. ALBIES: No, Your Honor.

5

MS. BROWN: No, Your Honor.

6

THE COURT: Very good.

7

MS. OSOINACH: So in the area of crisis intervention,

8 we have continued to make significant progress, as I detailed

9 in the memo that I wrote to you. What I particularly wanted to

10 call out is the fact that the work and the progress that the

11 City was able to make in this particular area of the settlement

12 agreement could not have happened but for the coming together

13 of numerous stakeholders.

14

This was not a project that the City ever intended or

15 could have undertaken alone. So the Behavioral Health Unit

16 Advisory Committee -- BHUAC for short -- is made up of an

17 amazing group of individuals who have served for several years.

18 There are peers and consumers and providers and police

19 officers, and they sit together on this committee and come up

20 with training recommendations.

21

They directly interact with police officers on both

22 individual cases, larger cases, systemic issues. That work has

23 resulted in, as I pointed out in the memo, an enhanced crisis

24 intervention training program that is the best in this nation.

25 You can see the results of that from the surveys of individual

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1 officers who are telling the City and telling others that they

2 believe in this work. It is so important to them. They

3 understand that it is important to the administration, and it

4 is important to the elected officials. And they are behind it

5 100 percent.

6

We were very pleased to see that The New York Times,

7 in their continuing love affair with the City of Portland,

8 rightly pointed out that we are writing the playbook for

9 conflicts involving mental illness.

10

What was important about The New York Times article

11 was that they did not say, "Successful outcomes every time in

12 the City of Portland." What they said was, "Here was an

13 innovative approach to a situation that appeared very

14 dangerous." And after the officers engaged in that situation,

15 they allowed the reporter to sit in and listen to their

16 thinking about it. Did they make the right decision? Should

17 they have done something differently? Should they have

18 engaged? Should they have disengaged?

19

That, I think, is what I think the citizens of

20 Portland and the Portland Police Bureau should be proudest of;

21 that officers are deeply engaged in the work of attempting to

22 figure these situations out, and they are being very

23 transparent about their thinking and the way that they are

24 managing these situations, because they've come to the

25 conclusion that they don't have all the answers, and the most

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1 important thing is to learn from specific incidents. That was

2 very heartening to see that The New York Times both reported on

3 that thoughtfulness, but also the difficulties that citizens

4 and police experience in resolving these situations.

5

THE COURT: The New York Times also had an

6 interesting cover story last Sunday on body cameras.

7

MS. OSOINACH: Yes, they did. I wondered if you had

8 read that, Your Honor. It was very interesting to hear about

9 Seattle's experience and we, of course, are looking to them for

10 both guidance and what the pitfalls are.

11

Similarly, this is challenging work. It is a

12 challenging time to be working on policing issues, both as

13 advocates, as people within the Government working on them,

14 and, as you know and everyone knows, we are in the midst of a

15 national conversation that has at times been toxic and painful.

16

So in that context it was very gratifying to have the

17 Portland Police Bureau and the Behavior Health Unit and be

18 asked to present at the International Crisis Intervention

19 Training Conference where we got to describe our multi-layered

20 approach and particularly emphasize how important it was to us

21 to engage in multiple stakeholders.

22

So we had both police officers, but also Lisa Otis,

23 who has graciously agreed to serve and has been just a warrior

24 for justice. She also presented, along with

25 Officer Christopher Burley, at the CIT conference. It is those

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1 sorts of experiences, where community members have expressed a

2 willingness and a vulnerability, to come together with law

3 enforcement. I think you will see that is also what the video

4 is also designed to express -- that there were lots of

5 divisions, but there are so many ways in which the community

6 and the police have come together. It is in fact changing the

7 bureau culture, and I think it is changing the culture of the

8 City of Portland for the better.

9

Do you have any comments or questions about that,

10 Your Honor?

11

THE COURT: Not yet. Although you've probably

12 noticed that I'm not shy about interrupting.

13

MS. OSOINACH: "Shy" is not a word that I associate

14 with you, Your Honor.

15

THE COURT: No. I appreciate what you are saying,

16 and I am tracking you.

17

MS. OSOINACH: So I would like to move on to use of

18 force and force investigations. This year was the first year

19 that the City of Portland undertook what we are calling a force

20 audit. The analysts that I just referred to seated in the back

21 of the room were asked to do a herculean task, and that was to

22 gather information in an overbroad way about 133 data points.

23

What we discovered is that much of the information

24 that was gathered and crunched was not actionable. In fact, it

25 created a situation where there was a lot of work that was

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1 being done by officers, sergeants, and people in the chain of

2 command that was not useful and was in fact redundant, but was

3 required by the settlement agreement.

4

In consultation with the Department of Justice and

5 their police practices expert, and, frankly, in direct

6 communication with our sergeants, what we learned is that there

7 was actionable information that would be helpful in the force

8 audit. So we intend over the course of next several days to

9 discuss with the Department of Justice how it is that we can

10 have an operationally sound force audit, because that's

11 everyone's goal, is to be sure that we're adequately

12 supervising force, but in a way that's operationally sound.

13

So I think we will see significant progress and

14 relief for the members of the Portland Police Bureau who are

15 doing the work and just want it to be done in a way that helps

16 them and that helps the community to understand the work that

17 is being done.

18

We were very gratified to see that the reports of

19 force, the individual reports of force that we provided to the

20 Department of Justice, in their review of those, that they did

21 not find constitutional violations.

22

We were also pleased to see that in our first ever

23 force audit, which I should point out is something that very

24 few other jurisdictions in the United States are even

25 attempting, that in our very first use of force audit that the

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1 sergeants with minimal training and an unclear policy were able

2 to hit all 133 data points 92 percent of the time. That's an

3 A minus. I think, while the United States pointed out that

4 8 percent of the time we didn't get it right, they are a

5 taskmaster, I think, that this Court and the community should

6 be proud of because they want to hold us to an A plus standard.

7 For our first ever force audit 92 is something that I think we

8 are very proud of, and I think should be.

9

Similarly, the work that is being done and will be

10 done over the next year to refine the force audit will provide

11 information to elected officials, to policymakers. But most

12 importantly for the Portland Police Bureau, it will provide

13 information to the community. This year the force inspector

14 went to all of the precincts and presented information and to

15 the training advisory council to present information about the

16 force audit.

17

That information was so well received in terms of

18 people being hungry for it. So that validated the City's sense

19 that the more information that we can generate and provide in a

20 reasonable, actionable way for the community and will

21 facilitate the kind of informed engagement that we've already

22 seen occurring, and the more that we've refined it, the better

23 able we will be to engage with community members who are

24 rightly concerned about what type of force officers are using

25 and under what circumstances, and, of course, officers are also

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1 very interested in understanding when other officers are using

2 force and what those outcomes are.

3

So we are continuing to work towards that, and we

4 feel very good about our progress under the settlement

5 agreement in that regard and continue to look forward to

6 producing even better and clearer information.

7

So now I would like to turn it over to Mr. --

8 actually, Your Honor -- I know you are not shy -- but do you

9 have any questions or comments about that?

10

I will turn it over to Mark Amberg to talk about body

11 cameras.

12

THE COURT: Thank you, Ms. Osoinach.

13

Mr. Amberg, welcome.

14

MR. AMBERG: Thank you, Your Honor, Counsel, and

15 members of the audience.

16

I am going to touch briefly hopefully on the subject

17 of body cameras, which has been in the forefront for the last

18 couple of years, particularly Portland has come to the

19 forefront in the context of the City's negotiation of a new

20 contract with the Portland Police Association.

21

While I recognize that body cameras are not directly

22 a part of the settlement agreement, they most certainly are an

23 important part of a system of police accountability. There is

24 lots of issues and limitations that come with the use of body

25 cameras, a lot of misconceptions and misperceptions about what

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1 body cameras can do and what body cameras can't do.

2

But one thing that I think is fairly clear at this

3 point is studies have shown that the use of body cameras only

4 captures a view of an event in question, certainly not the view

5 or a comprehensive view of the event in question. Use of body

6 cameras significantly reduces use of force overall. Frankly,

7 it improves the behavior of all involved, whether we are

8 talking about community members involved in an interaction with

9 the police or the police officers themselves.

10

The City's efforts to implement use of body cameras

11 began a couple of years ago. The first step was working on

12 legislation here in the state of Oregon, House Bill 2571, which

13 the legislation was implemented to help define in the statute

14 some of the primary issues regarding the use of body cameras

15 policies and procedures for the use, retention, and storage of

16 body cameras recordings, creating an exception in the law,

17 which restricts the recording of conversations, use of body

18 camera video in criminal proceedings, public records issues,

19 and very importantly privacy concerns primarily for the

20 citizens involved.

21

Body cameras, as I think as is fairly obvious to

22 everybody, it doesn't record very well the actions of the

23 officer. It records the actions of what the officer is seeing.

24 So there are significant privacy concerns for the citizens who

25 are involved when body cameras are deployed.

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1

The legislation includes prohibition on the use of

2 facial recognition, biometric recognition technology,

3 prohibition on the use of body cameras recordings for anything

4 other than legitimate law enforcement purposes. The City was

5 very involved in working on that legislation.

6

So following passage of the legislation, the City

7 turned its attention to gathering information on body cameras

8 and body cameras systems and receiving general public input on

9 body cameras. There were a number of public forums that were

10 held -- six public forums.

11

There was quite a volume of information that was

12 taken in. The intent at that point was that very thing -- to

13 gather general information about body cameras, body camera

14 systems without having necessarily a specific policy in place,

15 but to gather that general information to help inform a policy

16 on body cameras.

17

The City fully recognized at that point that it was,

18 again, not gathering public input about a specific body camera

19 policy, but to gather information to help inform the policy.

20 While gathering general public input about body cameras, the

21 City, along with the Portland Police Association, the police

22 union, worked on the specifics of a draft body camera policy,

23 recognizing and intending that the draft policy would be

24 publicly circulated for further public comment and input.

25

We think the draft policy -- while certainly not

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1 perfect, and there are issues that we are well aware of, the

2 public has some very serious and very significant concerns

3 about that are in the draft policy, that will be resolved as we

4 go forward. Overall the policy, we believe, is a comprehensive

5 draft policy that addresses most aspects of the use of body

6 cameras, including member and supervisor responsibilities, when

7 cameras are and aren't activated, preservation for evidence,

8 review of audio/video footage, retention and access to video,

9 training, public records requests, and public release of body

10 camera footage.

11

This draft body camera policy, as I believe

12 Your Honor is aware of, has ended up being part of the

13 tentative agreement that was entered into with the police

14 union. It was approved by City Council on October 12th. It

15 will take effect on November 11th of this year. But again, a

16 major reason for including that body camera policy with that

17 tentative agreement was to memorialize the significant work

18 that had been done by the parties in coming up with this draft

19 policy, with the full understanding, the full intent that it

20 was going back out -- now that we have a specific policy -- it

21 was going back out for public review, comment, and input before

22 there was a final policy that was agreed on.

23

THE COURT: Explain to me how that will work. We

24 have a draft policy now. You envision public input before

25 there is a final policy. How does all of that relate to what

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1 is going into the police association contract or collective

2 bargaining agreement? How do the pieces fit together?

3

MR. AMBERG: The body camera policy is not a part of

4 the police contract. It was part of the tentative agreement.

5 The best way I can describe it, it was part of the quid pro quo

6 in the bargaining process. There was, again, a recognition by

7 the parties. There had been significant work on the policy.

8 We hadn't come to agreement on it, and they wanted to

9 memorialize that as part of this tentative agreement going

10 forward.

11

THE COURT: So if I'm following you, you are saying

12 that the collective bargaining agreement will not have a body

13 camera policy; is that right?

14

MR. AMBERG: That's correct.

15

THE COURT: Then to what extent does the City have

16 the ability to put together and implement a final body camera

17 policy in light of the collective bargaining agreement? Or is

18 the answer, because it is not covered in the collective

19 bargaining agreement, the City has full authority to do what is

20 appropriate in a body camera policy?

21

MR. AMBERG: And that's true, Your Honor, with the

22 understanding, as was recognized in the tentative agreement,

23 that the police union has their legal collective bargaining

24 rights to make a demand to bargain over the body camera policy,

25 or at least impacts of the body camera policy to file

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-2, Page 137 of 301 47 ER-135

1 grievances.

2

If we were standing here today, and there was no

3 tentative agreement reached with the police union over the

4 police contract, and we were putting forward a body camera

5 policy/standalone body camera policy, we would be in exactly

6 the same boat that we're in right now, frankly, with the police

7 contract.

8

Now, there is no question there are issues out there

9 in terms of what's perhaps mandatory for bargaining, what's not

10 mandatory for bargaining. Frankly, another issue that we

11 haven't thought far enough down the road to fully resolve,

12 because we hope we don't have to, is how some of the aspects of

13 the body camera policy -- for example, I would say primarily

14 review of audio/video recordings, how that fits in with the

15 settlement agreement and to the extent that might fall under

16 the jurisdiction of the settlement agreement as opposed to

17 state collective bargaining laws.

18

THE COURT: I was going to ask you about that.

19 Frankly, let me do it right now. Although I certainly don't

20 have an intention to jump to any conclusions or to dictate any

21 solutions -- that's not my role -- but can you give me an

22 understanding of both sides of the argument, and if there is

23 more than two sides, all three sides, or more.

24

What is the debate about in terms of review of body

25 camera film footage or pictures before or after an officer gets

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1 interviewed or is required to submit a report? What are both

2 sides of the debate? If there are more than two sides, what

3 are the third and fourth sides of that debate?

4

MR. AMBERG: Well, in fairness, I think there are a

5 number of sides to that debate, Your Honor. I think the

6 primary issues are whether -- on the one side of the issue, I

7 would say the critics of that practice would say, well, that

8 gives the officer an opportunity to basically line up their

9 recollection before they write a report, before they are

10 interviewed as part of some formal investigation rather than

11 just giving their spontaneous -- I'll call it untainted

12 recollection of the event that has not been influenced by

13 reviewing the body camera video -- that somehow it gives the

14 officer an opportunity to kind of line things up so they are

15 telling a good story. That's one viewpoint.

16

The other viewpoint is that when officers prepare a

17 report, they don't see everything. They don't hear everything.

18 They don't notice everything. It gives the officer, in

19 writing, a good report about an event that happened. Whether

20 it was a use of force event or some other event, the officers

21 are trying diligently to report accurately what happened during

22 the course of that event.

23

If you look at it from that aspect, before they write

24 their report, they want to have everything available they can

25 possibly have to help them determine or recollect what happened

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1 during the event. I think those are really the two main

2 thoughts on it.

3

THE COURT: If you could do the same -- what are the

4 different dimensions -- pros and cons if you will -- of the

5 options on when to activate the camera and when an officer may

6 deactivate or fail to activate? What are the issues there?

7

MR. AMBERG: Well, again, one school of thought would

8 be, as soon as the officer comes on duty, he or he should

9 activate the body camera. I will note that in the draft policy

10 that's been prepared, at least under the draft policy, Portland

11 police officers who'd use body cameras, the body camera would

12 be on the moment they come on the shift, but there is a button

13 where they can actually activate it.

14

I wanted to clarify that, because what that means is

15 that the body camera is actually working. It is actually

16 recording. When there is an activation -- let's say an officer

17 is going to take some kind of law enforcement action, and they

18 activate the camera, depending on the system you are talking

19 about, it will actually capture -- go back about 30 seconds or

20 so, or maybe a minute before the actual activation, so it picks

21 up the recording before the actual event. I wanted to clarify

22 that point.

23

But one school of thought is they should be on all

24 the time. Of course, there were significant concerns that were

25 raised. It came up during the course of our conversation about

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1 the legislation, in particular with the ACLU -- I don't want to

2 speak for the ACLU, and I am sure they wouldn't want me

3 speaking for them either -- but there was a concern that they

4 were in favor of body cameras, but they were also very

5 concerned about privacy, particularly of the citizens who are

6 involved.

7

Then there is also the privacy -- I'll call them the

8 privacy concerns of the officers involved. So if it is on

9 24/7, so to speak, there are a number of issues with regard to

10 that. Do you really want to record their private activities

11 while they are taking a break or something like that?

12

One example that is always used is if they are going

13 to record, they have to go tell a mom that their teenager was

14 just killed in a car accident. Do you really want to have that

15 recorded on a body camera? We think the legislation addresses

16 that and the policy addresses that too. We don't think that's

17 a good policy for anybody.

18

Or somebody who is experiencing some kind of serious

19 emotional or mental health crisis. Do you really want to have

20 that on body cam video, so to speak, for the world potentially

21 to see? We don't think so.

22

So the other school of thought, where we think under

23 the draft policy we struck a balance, which is when the officer

24 is going to take some kind of law enforcement action, that's

25 when they are obligated to -- assuming there is not a safety

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1 issue or some other exigent circumstances -- that's when they

2 activate the body camera video, and under the draft policy they

3 could not turn that off until that event is -- is --

4

THE COURT: That's helpful. Thank you.

5

I know you touched on it before, but now if you could

6 take me through what is the process from which we get from this

7 draft body camera policy to a final policy.

8

MR. AMBERG: Sure. We are on the 30-yard line, and

9 we're moving towards getting over the goal line here. Again,

10 there was a recognition. There was further public comment and

11 input. When this matter came before City Council on the

12 ordinance to approve the tentative agreement with the Portland

13 police union, there was mention of the body camera policy going

14 out for further public comment and input, but it really wasn't

15 fleshed out very well. Council made -- there was an amendment

16 to the ultimate ordinance that was adopted that requires --

17

First of all, it directed the Police Bureau to

18 convene a stakeholder committee to review the draft body camera

19 policy and -- I'll use air quotes here -- "best national

20 practices," to the extent there are national best practices

21 with regard to the use of body cameras.

22

The City is in the process right now of putting

23 together that stakeholder committee. Council confirmed in the

24 ordinance there will be further public input through the

25 bodies, established a universal review process for new or

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1 revised policies or directives, and the Council directed that

2 this stakeholder committee, once it's convened, once it comes

3 up with whatever conclusions it comes up with, is to present a

4 report to Council regarding the body camera policy.

5

Under the ordinance that report will be subject to

6 further public input to potential amendments and Council

7 approval. So at that point we hopefully will have a body

8 camera policy.

9

Again, we've left aside a little bit the collective

10 bargaining issues on this. The union has asserted their right

11 to assert their collective bargaining rights. In the tentative

12 agreement we did agree that at least the review of audio/video

13 was a mandatory subject of bargaining. There has been a lot of

14 discussion about that. We have had our own internal thoughts

15 about whether that is mandatory or not mandatory.

16

In essence what was done in the tentative agreement

17 with the union, we agreed with the union -- we agreed not to

18 fight that fight with the union. Our intent in that was to

19 focus on actually working on the substance of a body camera

20 policy, which I think all concerned, certainly including the

21 union and the police officers, want to have to --

22

THE COURT: And what are the implications of that

23 decision of agreeing that it is going to be the subject of

24 mandatory bargaining and the implications of that?

25

MR. AMBERG: Well, it means that we agreed that we

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1 have to sit down and bargain with the union and talk to the

2 union about that provision. It doesn't mean it is resolved one

3 way or the other. We're saying we've given up our right to go

4 in and say, "Sorry. That's a permissive subject. We don't

5 have to talk to you about that."

6

THE COURT: So what happens if you then sit down and

7 bargain with the union, and you can't reach agreement? What

8 happen next?

9

MR. AMBERG: Well, again, we're sincerely hopeful,

10 and we sincerely think we will never ever get to that point.

11

THE COURT: I'm sorry? Did someone say something?

12

UNIDENTIFIED SPEAKER: Arbitrator --

13

THE COURT: As I said, if any members of the public

14 want to speak, just identify yourself to my courtroom deputy

15 during our break. I will hear from you at that time.

16

You may continue, Mr. Amberg.

17

MR. AMBERG: And that's a good question.

18

It is a little bit unclear, because under normal

19 process if we were leaving aside the settlement agreement that

20 we're here to -- the reason why we are here today -- normally

21 that would go to a labor arbitrator if we can't reach

22 agreement. The parties would submit their different proposals

23 on that, and the labor arbitrator would make a decision which

24 way to go, which policy to adopt. That's a very simplified

25 overview of what would happen.

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1

The one issue that we're, frankly, not clear on at

2 this point is whether ultimately, because of the settlement

3 agreement, and we'd have to look at the overall effect of the

4 settlement agreement, of whether that dispute would actually

5 come before this Court or would go in front of a labor

6 arbitrator. We have not fully analyzed that.

7

THE COURT: Two years ago, and you probably know, I

8 did announce my view -- and no party is bound by it. Anyone,

9 if they wish, can challenge it in the appropriate appellate

10 fashion. I did announce my view that if I do find that there

11 is a violation of the settlement agreement, and it is up to me

12 to decide an appropriate remedy, then I'm not bound by anything

13 in the collective bargaining agreement in fashioning an

14 appropriate remedy. You don't need to respond to that right

15 now, but I did say that two years ago, and I still hold that

16 opinion.

17

MR. AMBERG: Thank you.

18

THE COURT: By the way, do you have an expectation of

19 a time frame for reaching a final body camera policy?

20

MR. AMBERG: One thing I've learned here in Portland

21 is that things take much longer than you expect to get through

22 the process. And I'm not saying that as a bad thing. I think

23 in many ways that slow-cooking process in the end maybe it's

24 more difficult and less expedient than immediately in the long

25 term. I think in the long-term that slow-cooking process is

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1 beneficial. You end up with a better policy, a better program.

2

So I would expect, in terms of convening the

3 stakeholder group, bringing this back to Council, going through

4 all the discussions that we have to have, I would be hopeful

5 that by July 1st of next year we might have a body camera

6 policy. Again, I will say this: The work that we have done

7 upfront and significant work we've done upfront, in sitting

8 down particularly with the union and gathering a lot of public

9 input already and trying to come up with what we think is a

10 fairly solid body camera policy, albeit there are some clearly

11 disputed provisions in there, we've already hammered through a

12 lot of the details. We are hopeful that will be at least a

13 good starting point. It won't take us forever to get to a

14 policy.

15

THE COURT: Thank you.

16

MR. AMBERG: I think I've answered the Court's

17 questions.

18

THE COURT: You have.

19

MR. AMBERG: So I have covered basically the process.

20

Just one other final note, on the practical side, the

21 City has also been moving forward with looking at different

22 body camera systems. They are looking at storage retention

23 issues. So even though that work is not out in the forefront

24 right now, that work is going on. So the City, once we get

25 this policy issue worked out, there are obviously some

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1 financing issues and those types of things. But our hope is

2 that this is all going to coincide. So once the policy issues

3 are worked out, the practical issues will also be worked out,

4 and the City will at least be good to go and ready to go with a

5 body camera system.

6

THE COURT: I think the only thing we know with

7 certainty is that, as time progresses, it gets less expensive

8 and easier to store more and more data it if wants to.

9

MR. AMBERG: Right. The other advantage of taking

10 more time is hopefully we will be able to learn by other

11 people's mistakes.

12

In any event, there is much more to be done

13 policy-wise on the practical side, but the goal is, again, not

14 necessarily a fast process. But in the end, we hope it is a

15 good process that results in having the best possible body

16 camera policy and program for the City of Portland.

17

THE COURT: Thank you, Mr. Amberg.

18

MR. AMBERG: Thank you.

19

MS. OSOINACH: So I would like to transition now into

20 talking about the First Amendment public meetings and criminal

21 activity.

22

THE COURT: Oh, no. Now you're going to ask me

23 questions, right?

24

MS. OSOINACH: I might. If you are willing.

25

THE COURT: Go ahead.

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1

MS. OSOINACH: So as you know, Your Honor, the City

2 over the course of probably the last year has been grappling

3 with the control of its public meetings. By "public meetings,"

4 I refer to City Council meetings and meetings of volunteer

5 boards. The Oregon Public Meetings Manual is very clear that a

6 presiding officer at any meeting is responsible and has the

7 authority to control the public meeting.

8

What we've experienced is that that role of the

9 presiding officer is particularly challenging right now. In

10 fact, over the course of the last year there have been a number

11 of arrests at public meetings. Over the course of the last

12 several months those arrests have resulted in criminal

13 convictions here in Multnomah County.

14

The United States Department of Justice in their

15 compliance report euphemistically referred to one of these

16 criminal incidents as "throwing water" and in a rather

17 dismissive tone failed to indicate that the activity that

18 occurred at this public meeting of volunteers was criminal

19 harassment.

20

The individual was convicted of that crime. In his

21 own allocution he acknowledged that his desire to make his

22 views -- his important views about police accountability

23 known -- had veered into inappropriate criminal activity for

24 which he took full responsibility. The case is being appealed,

25 but certainly during his allocution --

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1

Importantly, the judge in that case expressed,

2 I think, what many in the city have felt, which is that the

3 desire to engage in police reform and make one's views known

4 about it should not take away from the right and the

5 responsibilities that other people have also to engage in the

6 system.

7

The judge in the particular case, the criminal

8 harassment, was very concerned about the larger impacts to the

9 system that this kind of criminal activity has. It discourages

10 other people from participating. It creates fear and anxiety.

11

I think that there are many members even here today

12 in this audience who I can see who have been subject to

13 arrest -- not many but some -- here in the audience. Yes, they

14 are raising their hands.

15

So I thought it would be helpful to engage in a

16 discussion with the Court, because certainly the folks that

17 have raised their hands here today, I have personally engaged

18 in discussions. I know that they strongly believe that their

19 First Amendment rights include the need to disrupt public

20 meetings. That is something that the City has experienced an

21 enormous challenge because the presiding officers, some of whom

22 are seated here today at City Council, strongly value public

23 input.

24

I think exactly this Court has experienced each party

25 needs to have its time to be able to express their views to

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1 decision makers, and that's part of the challenge. The

2 criminal activity that is occurring has led to an inability of

3 the City to conduct its business and has resulted in the City

4 having to take increasingly drastic measures in order to ensure

5 that the public's business can get done in a transparent way.

6

So I would be interested in your thoughts about the

7 relationship between civil disobedience and the need and the

8 strong history in Portland of people taking to the streets to

9 express those views.

10

THE COURT: Well, one thing I will do, and in a

11 moment I will get back to you with a question. But it occurs

12 to me that people who disrupt a meeting may do so for different

13 reasons. They have different purposes, different motives,

14 different objectives. Sometimes they are understandable or

15 legitimate objectives or motives that can be re-channeled into

16 a more productive way.

17

My question really is, has the City or any other

18 organization that you know, because I can't think of any, ever

19 held a type of public discussion, hearing views from everyone,

20 on the best way to hear from everyone? In other words, taking

21 it out of the context of any particular agenda item. If we're

22 talking about agenda item X, and someone has very, very strong

23 feelings about agenda item X, well, those strong feelings will

24 come out, and they may come out in an inappropriate fashion.

25 They may come out in a disruptive or inappropriate fashion.

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1

But what if we were to proceed to talk what's the

2 best way in our community -- we all live together in the same

3 community -- what if we all were to all talk about, and I don't

4 know whether this is maybe a City-convened discussion. Maybe

5 the amicus convenes this type of discussion. Maybe you already

6 have. Maybe it is a group of people that convene this.

7

But it sounds like we might want to have a discussion

8 of the best way to have public input and have public

9 decision-makers receive information in a way that is respectful

10 to everyone, to make sure that everyone is heard. And what's

11 the best way to do that? Totally separated from any specific

12 agenda item so that way we don't have one's feelings about a

13 particular agenda item coloring that discussion, and maybe that

14 will result in a set, if you will, Portland protocols. This is

15 the way we have public dialogue in Portland. Maybe we will

16 have an agreement; maybe we won't have an agreement.

17

By the way, I want to tell you, because I'm going to

18 bring it over to some specifics in a moment, and I'll outline a

19 little bit later all the items that I have read. I have

20 received a lot of information, and I appreciate, Ms. Saadat,

21 the information you've given me about what has been happening

22 at COAB. I wasn't there. I have not had an evidentiary

23 hearing, so it is not my place, and no one is calling upon me

24 to judge who did what at the COAB meetings and who may be right

25 and who may be wrong and things like that.

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1

But I do note that this is a very serious problem,

2 and it is not just at Portland City Council meetings. It is

3 not just at COAB meetings. I will say that I'm very

4 appreciative and very lucky that it is not in this courtroom.

5 For that, I appreciate and thank everyone who participates.

6

But I think we need to have a public dialogue about

7 different ways of doing a public dialogue and hear from

8 everybody on that and maybe come up with a set of protocols or

9 best practices. Maybe it is different in different

10 circumstances. Maybe the way one conducts oneself in a

11 City Council meeting may be different than a courtroom. I

12 don't know. Maybe it is the same; maybe it is different at a

13 COAB meeting. Maybe it should be different; maybe it should be

14 the same.

15

I really don't know the answer, but I do believe that

16 there are many people in our community that are both very wise

17 in this view and who probably have differing opinions. And

18 before we come up with a protocol or roadmap or blueprint for

19 how we are going to have these public discussions in the way

20 that will accomplish the objective that you've articulated, and

21 I really think are the correct objectives to make sure that

22 everyone's voice gets heard, I think it would be very useful to

23 have that, if you will, meta discussion about the best way to

24 do that.

25

Maybe the Department of Justice has already convened

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1 those types of meetings. I haven't read anything about that in

2 the media, but I do think it might be time in the next few

3 months, if that hasn't already been done, for us to come

4 together as a community to talk about: What types of problems

5 take place when we have meetings that are disruptive? Why do

6 people feel a need or desire to disrupt? Is there a better way

7 to allow those people to express their feelings and to express

8 their views and to be heard and not to block off and intimidate

9 the views of others?

10

I don't know if we can reach a consensus on that, but

11 we will never find out until we have a discussion or dialogue

12 about what are the various motivations and can we reach a

13 consensus or agreement.

14

MS. OSOINACH: Those comments and thoughts are so

15 helpful and exactly what I had hoped to hear. I think that

16 is -- I'm one person. But I can look around. I think that is

17 exactly what's needed.

18

We respectfully disagree with the United States'

19 position that what needs to happen are deadlines. "In 30 days

20 we will come back to you; in 90 days we will come back to you."

21 That's not the Portland way. We need to have an opportunity

22 for the community to tell us and for the City to be able to

23 engage in a way that gets to what you are saying, which is,

24 apart from a discrete issue, we need to talk about the way

25 we're talking.

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1

THE COURT: You know, I was agreeing with you so

2 much -- everything you said -- until that last point -- because

3 look at it. I think that these types of annual status

4 conferences and discussions are incredibly helpful.

5

MS. OSOINACH: I agree, Your Honor. The annual

6 status conferences are helpful.

7

THE COURT: Without pointing any fingers, at least

8 one party at this table resisted that when I first proposed

9 that.

10

MS. OSOINACH: That is correct, Your Honor. When we

11 have the hearing, we did in fact object to that. But the

12 status conferences are very helpful. To the extent there was

13 ever any indication that our resistance was based on the fact

14 that they would not be helpful, then I would extend a sincere

15 apology.

16

THE COURT: No apology needed. We are all struggling

17 to find the best way to move forward.

18

What Mr. Geissler proposed earlier, he didn't suggest

19 an evidentiary hearing in 30 days or the 90 days, but a status

20 conference. I, frankly, think that that's not a bad idea.

21 Whether the right time period is 30 or 90, less or more

22 frequently, or a little bit longer and less frequently, we will

23 talk about.

24

But I do think it is a good idea to put down markers,

25 as you have in your settlement agreement, of coming together

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1 and reviewing it. Frankly, right now, as we are approaching

2 the two-year anniversary that is discussed in paragraph 175,

3 this is a perfect time to do that. I think it probably does

4 make sense to come back in approximately 30 days and come back

5 in approximately 90 days. I assure you I'm not planning on

6 ordering an evidentiary hearing, but if any party, and that

7 includes the amicus, wants a court hearing, just ask for one,

8 and you will get one.

9

Here is what we don't want to have happen, at least I

10 don't think this is what we want to have happen: We know,

11 under the agreement, if the United States files a motion that

12 the settlement agreement is not in compliance, then I hold a

13 hearing. If I find that is correct, I make a remedy. And then

14 I have way more responsibility than I really want in this

15 process. I will not be shy about exercising it if I have to,

16 but that's not the right way.

17

MS. OSOINACH: So, Your Honor, what would be helpful,

18 I think, is to talk about the purpose of a status conference.

19

THE COURT: Okay.

20

MS. OSOINACH: The purpose of a status conference

21 from the advocates' point of view is to inform the Court about

22 the progress or lack of progress being made. From the Court's

23 point of view, I assume that what is also quite helpful for the

24 Court, as you've described, you have responsibilities for

25 enforcement. So in order to manage your own docket and your

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1 own work flow, it is helpful for the Court to know whether or

2 not work may be coming your way.

3

THE COURT: Precisely.

4

MS. OSOINACH: So in that regard the coming before

5 this court in 30 days or 90 days to continue to inform you

6 about whether or not you may be called upon in the future to

7 address an area of non-compliance or conduct enforcement action

8 is premature.

9

You will hear in a moment from Judy Prosper, who has

10 done an enormous amount of work on the COAB. I would like to

11 give you one example of how setting deadlines, while the intent

12 may be to hold folks' feet to the fire, it may have detrimental

13 effect.

14

When the COAB was first being formed, the City

15 undertook a leadership role in partnership with the AMAC and in

16 partnership with others in the community. The selection of the

17 five at-large members occurred entirely from members of the

18 community, vetting applicants, and choosing applicants. We got

19 five wonderful people to serve on the COAB. That process took

20 a long time, because it was so important to everyone to have

21 people who were committed to police reform, who were informed,

22 and who understood what they were getting into.

23

The City's work plan for after the selection of the

24 COAB was that we would take some time to orient, train, so that

25 people wouldn't be thrown right in. The United States at that

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1 time pointed out that that would be not in compliance with the

2 settlement agreement because the COAB needed to be established

3 by a certain date. So rather than taking time prior to the

4 establishment of the COAB and to avoid a finding of

5 noncompliance, the City convened the COAB, and I believe in the

6 words of Kathleen Saadat, which I'm very glad to see you have

7 read her submission --

8

THE COURT: Two submissions.

9

MS. OSOINACH: Yes, two submissions. We were

10 building a plane while we were flying it. And that was not an

11 ideal situation either for the City, but, more importantly, for

12 the volunteers that served on the COAB.

13

So that is an example of where imposing these

14 deadlines actually hinders progress. So that is why when an

15 hour ago the Department of Justice suggested that we continue

16 to periodically come before the Court, that the City -- our

17 initial response is that we would like some time to continue to

18 work with the stakeholders involved to figure out exactly on a

19 higher level what you suggested, which is how we, as a

20 community wanting and able to be engaged in this work, and then

21 what are some of the concrete plans that we have.

22

So it is not coming from a place of being obstinate.

23 It is coming from a place of wanting to move forward, and there

24 is plenty of fire on these feet. I do not think the Court's

25 involvement, particularly because you have that potential

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1 enforcement role, is warranted at this time.

2

I will turn it over to Ms. Prosper at this time.

3

THE COURT: You make some very good points. But also

4 tying it back to the points that you made a little bit earlier

5 in your presentation, I do think one of the reasons why we may

6 be seeing disruptions at various public meetings, whether they

7 be City Hall, whether they be COAB, and other contexts maybe --

8 and I don't know this, because we haven't had that full of a

9 discussion on this -- maybe is in part driven because of public

10 frustrations with the perception of how slowly things are

11 moving. I'm not saying things are moving slowly, but nor am I

12 saying they are not. But that may be a source of some public

13 frustration.

14

One of the ways to address that may be with more

15 transparency, more public hearings. It doesn't have to be in

16 this vehicle. But if that's what one of the parties is

17 suggesting, I am going to make this Court's time and this

18 Court's courtroom available to assist -- if that's what one of

19 the parties think.

20

But I'd like to leave it alone for right now. We

21 will be taking a break a little bit later. I will hear from

22 Ms. Prosper in a few moments. But let me encourage you and

23 Mr. Geissler to discuss these issues during our break. I will

24 hear from both sides after the break. If you have reached an

25 agreement, I will most likely adopt whatever you all have

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1 agreed upon. And if you don't have an agreement, I will do

2 what courts do when parties have a disagreement, and that is

3 make a ruling. I encourage you to speak with each other during

4 our break.

5

Now I am looking forward to hearing from Ms. Prosper.

6

Dennis, if you are all right, let's keep going a bit

7 little further.

8

MS. PROSPER: Thank you. I am going to go over to

9 the podium.

10

THE COURT: Wherever you wish.

11

MS. PROSPER: Good afternoon again, Your Honor. I am

12 actually thrilled today. It is a great privilege for me to

13 appear before you because this is my very first court

14 appearance in the state of Oregon.

15

While I have been an attorney for almost two decades,

16 I moved to Portland and joined the City Attorney's Office two

17 years ago, a little more, in the fall of 2014, and I absolutely

18 love Portland. The City has warmly welcomed my family, and I

19 am delighted to have made this move.

20

Shortly after my arrival to the office, I was asked

21 to "help out" with implementation of the settlement agreement.

22 And here I stand, right? Two years later, I'm proud to be a

23 full-fledged member of the team. I have submerged myself in

24 the history that gave rise to the need for the settlement

25 agreement, and I continue to seek to understand the nuanced

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1 perspectives of the various stakeholders.

2

As mentioned, I will address the Court regarding the

3 City's community engagement obligations under the settlement

4 agreement, mostly found in Section 9, but also in other places.

5

These areas have been deemed to be in non-compliance

6 with significant barriers, as the DOJ mentioned. So I want to

7 start by saying that meaningful community engagement on police

8 reform is very, very challenging, but also very, very

9 necessary.

10

The City is committed to considering informed input

11 in recommendations from all voices -- be they small,

12 individual, collective, or very powerful. The City is

13 immensely grateful for the volunteer community oversight and

14 advisory board members, both past and present, who dedicated

15 countless hours, well beyond that which was expected to work on

16 this very important experiment in direct community

17 participation in police reform.

18

It is, however, painfully clear to the City that

19 there have been several obstacles in the way of COAB's ability

20 to be successful at its stated goals and tasks. All parties --

21 amicus and intervenor included -- agree that the settlement

22 agreement structure to support the COAB must be reconsidered.

23 All have agreed to continue working to develop a clearer path

24 forward.

25

Going back to the beginning, as my colleague pointed

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1 out, in late 2014, in early 2015, it is clear that the vetting

2 process for the selection of COAB members could have been more

3 streamlined. It could have been more informative to both those

4 who were tasked with collecting as well as those ultimately

5 chosen to serve from the community at large.

6

Aggressive and, in hindsight, unreasonable deadlines

7 resulted in the COAB being seated before receiving a

8 comprehensive orientation and training for its members prior to

9 beginning their work. Looking back, it's also clear that the

10 agreement failed to adequately delineate and focus the scope of

11 the work expected of COAB members.

12

As the COAB's own report points out, the amount of

13 work expected was completely underestimated and impossible to

14 accomplish in the "ten hours per month" that they were told it

15 would take.

16

Because of these foundational deficits, the Board's

17 priorities shifted often. This, unfortunately, delayed the

18 invitation of the mayor and police chief until November of

19 2015. That invitation was postponed by the COAB executive

20 committee to accommodate another training they needed.

21

Many could not interpret the City's legally required

22 processes, procurement rules, and state law requirements for

23 the City's use of funds. That's because we never had a chance

24 to really clearly articulate them. But that's on us. And even

25 seasoned city employees are not fully versed with the many

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1 restrictions on the use of city funds.

2

Obligations and requirements of public service as

3 "public officials" were only described to the members as issues

4 arose, causing great confusion and mistrust. Again, that's on

5 us.

6

The COAB seemed to begin to coalesce after a private

7 facilitated retreat last spring, and I want to piggyback on

8 what Your Honor said and say that common rules for common

9 ground were created and voted on by the full COAB, and there

10 was an expectation that those who attended the meetings as well

11 as the COAB members with each other would respect a certain

12 level of decorum.

13

Soon afterward the meetings started to become very

14 difficult. The civil unrest at COAB meetings referred to by

15 the DOJ resulted in COAB members, the chair, city employees,

16 and members of the public expressing concern for their physical

17 safety at COAB meetings and facing reputational harm due to

18 both verbal attacks, attacks in person, and electronically

19 online.

20

There were online communities with the sole purpose

21 of disrupting and disbanding COAB. These individuals were

22 organized in their goal and would grind public COAB meetings to

23 an abrupt halt without stating their intended purpose for doing

24 so.

25

Memberships of the public have had to be excluded for

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1 disrupting the meetings and arrests for criminal behavior, as

2 mentioned earlier, have unfortunately been necessary. It is

3 not a good optic when police officers come in to arrest

4 citizens at a meeting for police accountability and reform.

5

Several COAB members called for a temporary halt to

6 activities to cope with the increasing difficulties to the

7 proper functioning of COAB. Again and unfortunately, the April

8 meeting where the mayor and the chief were again invited had to

9 be canceled by the COCL because the meeting preceding it ended

10 abruptly due to extreme circumstances.

11

Several COAB members resigned, bringing the

12 membership from 15 voting members to a mere eight. As the DOJ

13 points out, the effort to keep the COAB functioning began to

14 require a disproportionate amount of time and resources from

15 all sides, with mixed results, at best, in actually achieving

16 what was envisioned.

17

At its July 14th meeting of this year, the COAB made

18 a recommendation to the parties requesting to be independent of

19 the COCL. On July 19th, the COCL delivered a petition to the

20 parties requesting relief from its contractual obligations to

21 chair and manage the COAB. This has colloquially been referred

22 to as "the divorce."

23

Both requests would require structural amendment to

24 the agreement. The summer was upon us, and it seemed like

25 folks just needed a little break to reset, restore, maybe take

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1 a vacation, and spend a little more time with their families.

2

In late August, after consultation, the City and the

3 United States agreed that a 60-day hiatus of COAB activities

4 would give everyone this breathing room.

5

I just want to say a little bit about the 60 days.

6 We all know lawyers are not very good with math. We sort of, I

7 think in the beginning, requested an open-ended time frame, but

8 we knew that wouldn't fly, so someone -- probably me -- came up

9 with 60 days. It was a number. And again, as my colleague

10 points out, a lot of times things don't get done. Quite

11 frankly, I could use a lot more time to check in with

12 stakeholders.

13

During the break the understanding of the parties was

14 that the City would engage the amicus party, Albina Ministerial

15 Alliance, the intervenor, the Portland Police Association, PPB

16 community groups, constituencies, our commissioners to seek a

17 different and less challenging path to incorporate community

18 input into the City's work.

19

I want to make a note here. You have heard that the

20 City could "fix" the COAB simply by reappointing new members to

21 fill the vacancies created by the slate of resignations. It is

22 true, that despite the peril of lack of forum, the mayor and

23 three city commissioners have not appointed replacement members

24 as the appointees resigned. This was not a lighthearted or

25 casual decision on their parts.

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1

Four council appointees resigned almost

2 simultaneously. All appointees gave varying personal reasons

3 for their resignations. But the difficulties faced by COAB's

4 lack of cohesion and functionality were among them. Each, like

5 all the other dedicated members of COAB, gave generously of

6 their time and talent to the process, but were met with

7 daunting obstacles to their success.

8

Counsel members want the current issues addressed

9 before appointing new members, recognizing that such

10 appointments could prove to be an exercise in futility and

11 discourage interested and dedicated volunteers from accepting

12 such appointments in the future.

13

The City staffs over 100 boards and commissioners.

14 We realize that more needs to be done to ensure their success.

15 A project for on-boarding on all city volunteers is actually in

16 the works toward that end.

17

At the beginning of the 60-day period of reflection

18 the City drafted a survey and circulated it at a public forum

19 generously hosted by Maranatha Church on September 12th and

20 then beyond to anyone who wished to give their input, be it

21 anonymously or citing who they were.

22

I personally spoke with several mental health peer

23 support specialists, many advocates and providers for those

24 experiencing mental health challenges. Council staffers and I

25 spent many hours with the steering committee of the AMAC to

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1 engage our city commissioners and their staffs on their

2 thoughts.

3

I spoke to other police accountability bodies and

4 sought advice from community leaders such as the faith

5 community and police forum. We interviewed almost every former

6 and current COAB member, with Commissioner Fritz sitting in on

7 the former and current COAB members so she could report back to

8 her colleagues. The COCL and former COAB chair were also

9 consulted. We continued to meet with stakeholders to gather

10 their diverse perspectives to include this input in our new

11 proposal.

12

Despite the recess, the City provided resources to

13 the remaining members of COAB to have two work sessions to help

14 them craft their report for the Court today. Toward the end of

15 the 60-day recess the City drafted an outline for a proposal to

16 move forward based on the comments and recommendations

17 received.

18

I just want to say something about being fully baked.

19 Since I have arrived to the City, we have been criticized over

20 and over for fully baking the cake and presenting it for people

21 to slice up. We didn't do that this time. We didn't fully

22 bake the cake. We put out a couple of eggs, some flour, some

23 sugar, and some butter, and we asked for continued input from

24 the parties to get the thing together.

25

It should be noted that one of the most pervasive

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1 comments was that the settlement agreement gave the COAB too

2 much work, and the Board needed to be focused with fewer

3 tangible deliverables. The City proposed this loose

4 framework -- cake not quite baked -- as a starting point for

5 party discussion in a way forward.

6

COAB's recess has ended. It ended last Friday, as

7 you pointed out, Your Honor. There is a COAB meeting scheduled

8 for this Thursday, October 28th, that will be -- per the

9 settlement agreement -- chaired by the COCL.

10

The framework for conceptual amendments were shared

11 with the parties, including the intervenor and amicus prior to

12 an October 14th meeting. The parties met again a week later to

13 set some parameters for further discussion on what the future

14 COAB structure should be, including a selection process.

15

Again, I want to point to what Your Honor said

16 earlier: We're lawyers. We're used to fighting, or not being

17 on the same side. Thus, the parties agreed to facilitate

18 future conversations in moving the way forward. This was

19 pointed out, I believe by Ms. Brown earlier.

20

Another thing on timing and something I make very,

21 very clear when we agreed to do this. We need to follow the

22 procurement processes of the City and State of Oregon. Those

23 things take time.

24

So hopefully within the next week or so we will agree

25 on somebody who we think can facilitate us. Then we will

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1 engage the procurement process. So that's going to take time.

2 And I hate to say it, but 30 days from now maybe we will have a

3 contract. So there might not be too much to report back on in

4 30 days.

5

All the parties agree that the settlement agreement

6 structure needs to be reconsidered. All the parties have

7 agreed to continue working to develop that structure.

8

Were do we go from here? What's next? Giving up on

9 informed community input is not an option. The City is

10 dedicated to moving forward with the benefit of hindsight,

11 acknowledging the areas where we are lacking.

12

We have a renewed dedication to improving intentional

13 and well-informed community engagement on police reform. We

14 wish to continue to improve upon what we have done well and

15 attempt not to repeat what we have not. The City looks forward

16 to addressing the issues that have overwhelmed COAB as we

17 consider modifications to the settlement agreement.

18

Thank you for this opportunity to stand before the

19 Court, on behalf of Portland, and for this Court's unyielding

20 dedication to this case.

21

THE COURT: Thank you, Ms. Prosper.

22

Let me share with you one reaction you said about

23 deadlines, lawyers, numbers, and timing. You know from your

24 practice -- maybe not that much in this district, but it is

25 pretty constant around the country -- that judges set

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1 deadlines. For some responses our deadlines are 14 days;

2 others it's 21 days. Other types of things, you have deadlines

3 of 30 days. The specific number isn't that critically

4 important, as you know, because more often than not, if someone

5 asks for a reasonable extension, they get it.

6

But I've noticed, and my guess is you probably have

7 too as a practicing lawyer for some time, that deadlines are

8 good to actually get the attention of the lawyers and others to

9 actually do something. I do think that deadlines are valuable

10 for that purpose because they tend to focus attention that

11 enough time has gone on. We now have to do something about a

12 particular problem before a deadline comes up.

13

Without that, we run into too great of a risk of

14 other priorities, other matters that we have to attend to,

15 maybe that do have other deadlines taking precedent because we

16 don't have a deadline for something else.

17

So I do believe that deadlines play a good and

18 valuable role in getting things accomplished and done. That

19 said, and I'll say a few more comments in a few moments, that I

20 also recognize that we don't always necessarily get things

21 right the first time. It is constantly an iterative process of

22 learning and improving.

23

But I am quite sympathetic to and supportive of a

24 suggestion that we have some deadlines, as Mr. Geissler

25 proposes, and I'll leave to the parties to discuss exactly what

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1 those right parameters and quantities should look like during

2 our recess, but I'm quite supportive of that.

3

By the way, I will say right now a comment I was

4 going to say a little bit later, but I will say it right now.

5 I recognize this country has a tremendous history of making

6 efforts and realizing that sometimes we don't get it right.

7 Then we go back to the drawing board. We're constantly

8 improving, but we don't necessarily always get it right. We

9 recognize the flaws, and then we build on them and improve.

10

You know, the cleanest example that I can think of

11 right now was when our country started, after we won the

12 Revolutionary War, we came up with the Articles of

13 Confederation. It looked like a good idea at the time to the

14 Continental Congress, and it proved it wasn't working. It had

15 too many serious flaws.

16

Then we had our Constitution. We had our

17 Constitutional Convention in 1787, and that was a dramatic

18 change from the Articles of Confederation. They still didn't

19 quite get it right. That's why the First Congress in 1791

20 proposed the Bills of Rights that were ratified, and that was a

21 nice step forward, an improvement, but it still wasn't far

22 enough. It didn't accomplish enough.

23

Ultimately, we had the Civil War. One of the good

24 things that brought us was the Reconstruction Amendments, the

25 Thirteenth, Fourteenth, and Fifteenth Amendments going in the

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1 right direction -- and I'm just talking Constitutional changes.

2 I'm not even getting into statutory issues. But that didn't go

3 far enough.

4

Ultimately, we needed the Nineteenth Amendment, and

5 my guess is that we haven't gone far enough and that someday

6 historians or others will look back and say in this time period

7 we hadn't gone far enough, and we need it even more. So we are

8 getting there.

9

So I'm not being overly critical of what has taken

10 place in the last two years. I do acknowledge the parties have

11 agreed we're not in compliance with settlement agreement.

12 However, we're not done. Nobody expected that this would be

13 fully complied with in just two years. We need to keep moving

14 forward. We can't lose sight of it. I do recognize the

15 contributions of everyone here toward that objective.

16

So moving forward, we will get it done. It may come

17 with three steps forward and two steps back, but we are making

18 progress. We are moving forward.

19

Ms. Osoinach, I know you wanted to show a video.

20 Approximately how long is that?

21

MS. OSOINACH: It is approximately ten minutes.

22

THE COURT: Maybe we should do this: I would like to

23 relieve our court reporter at this time -- although when I stop

24 talking, of course. Then we will listen to and watch the

25 video. Then we will take a ten-minute recess right after the

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1 video ends. It sounds like the City is done with its opening

2 comments, am I correct, after the video?

3

MS. OSOINACH: Yes. I would like to make a few

4 comments to set the video in context.

5

THE COURT: We will do that. After the video ends,

6 it sounds like the City will be done with the presentation.

7

MS. OSOINACH: We will have no further comments.

8

THE COURT: Then we will take a ten-minute recess.

9

After that, I would like to hear, Mr. Karia, if you

10 have any comments on behalf of Portland Police Association.

11

Ms. Albies and Dr. Haines, if you have any comments

12 on behalf of the Albina Ministerial Coalition.

13

I also look forward to hearing from our COCL,

14 Dr. Rosenbaum, Dr. Watson, and Dr. Christoff. You can tell me

15 what you all want to do.

16

I do want to hear from the COAB representative,

17 Mr. Steenson.

18

Ms. Saadat, that is you. If you would like to share

19 comments after Mr. Steenson, I would like to hear your

20 perspective.

21

Ms. Hardesty, I received a letter from Mr. Hardesty.

22 I would be interested in hearing your comments, Ms. Hardesty.

23

Frankly, anyone else who wants to speak.

24

I have got Dr. Bethel.

25

Frankly, the invitation is open. Just see Mary

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1 afterwards.

2

What I would like to do is after the COCL and COAB,

3 Mr. Steenson, then hear from Ms. Saadat, Ms. Hardesty,

4 Dr. Bethel, if you wish.

5

Mr. Walsh, if you are willing to share some of your

6 views.

7

MR. WALSH: Oh, yes.

8

THE COURT: I would be very interested in hearing

9 your views a little bit later, including the point about what

10 can and should be done to make COAB meetings more productive

11 and less disruptive. I would like to hear from you on that,

12 sir.

13

Anybody else, just let Mary know, and we will hear

14 from you after our break.

15

So the floor is now yours, Ms. Osoinach, to set the

16 stage.

17

Yes, Ms. Albies.

18

MS. ALBIES: Your Honor, for the AMA Coalition,

19 Dr. Haines was going to give a presentation, but also I was

20 going to direct the Court to Dr. Bethel for a brief

21 presentation.

22

THE COURT: Of course. I leave it in your hands to

23 decide how AMA best decides to present whatever you wish.

24

So it is in your hands, Ms. Osoinach, to set the

25 stage for the video. Whenever you tell us you are ready, we

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1 will then start the video. I will relieve the court reporter.

2 When the video ends, we will take a ten-minute recess.

3

MS. OSOINACH: Thank you.

4

So I mentioned this first, but I just wanted to make

5 clear, this is a video that was prepared specifically for this

6 court proceeding as demonstrative evidence for you at my

7 request.

8

I spoke to the individuals who agreed to appear on

9 this video, and I cannot thank them enough. Some of them were

10 going to try to be here today and weren't able to be. These

11 are officers and citizens who had interactions that transformed

12 them, and they agreed to make themselves vulnerable in

13 describing the challenges that they faced in coming together,

14 but how it made a difference in both of their lives.

15

I thought it would be very helpful, not only for the

16 Court, but all of us, after the discussion we've had, about how

17 challenging it was to have public discourse at the COAB and

18 other meetings and to have micro examples of the fact that

19 those challenges have not overwhelmed, nor will they, the

20 good-hearted efforts of people to come together to work on

21 police reform in Portland.

22

UNIDENTIFIED SPEAKER: I am going to object to this.

23

THE COURT: Pardon me?

24

I don't know what you are saying, but I look forward

25 to what you are saying later.

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1

UNIDENTIFIED SPEAKER: Should I come on video with

2 the people I have recorded?

3

THE COURT: You are welcome to say anything you want.

4 Just talk to Mary, and we will get you on the list.

5

(Technical difficulties with the presentation.)

6

THE COURT: Let's take a ten-minute recess. We will

7 watch it when we come back.

8

(Recess.)

9

(Open court; proceedings resumed:)

10

THE COURT: All right.

11

Mary, did we get that taken care of?

12

Dennis, you don't need to take this.

13

You may proceed.

14

MS. OSOINACH: Your Honor, we are still working on

15 the video, so if we could have just a few moments.

16

After the last status conference, after conferring

17 with our clients, there were some things that we felt it was

18 important to put in the record and so Mr. Amberg would like to

19 put a few things on the record. Then we will play the video.

20

THE COURT: Very good.

21

MR. AMBERG: Thank you, Your Honor.

22

Referring back to the body cameras -- and I apologize

23 if I misstated some things. I wanted to make sure that they

24 were clarified for the record before the Court.

25

The body camera, we have the tentative agreement that

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1 was agreed to with the Portland Police Association. Then we

2 have the labor contract itself.

3

I wanted to clarify, first of all, there is no body

4 cameras policy that is part of the contract. It is not part of

5 the contract. There is not a body camera policy that was

6 agreed to as part of the tentative agreement. It was a draft

7 body camera policy. It was referred to as part of the

8 tentative agreement. There has been no agreement on a body

9 camera policy. I wanted to make sure to clarify that.

10

I also stated per the -- the ordinance was adopted by

11 Council. Under the ordinance that was adopted by Council, I

12 may have implied that there was a report from stakeholder

13 groups that was going to come back to Council for approval. I

14 didn't want to imply that it was a report that was going to be

15 approved by Council. I want to make clear it is the body

16 camera policy will come back to Council for further public

17 input and ultimately approval by Council on the body camera

18 policy.

19

The bargaining over the mandatory subject, we believe

20 that there are a number of aspects that are mandatory for

21 bargaining. That was acknowledged in the tentative agreement.

22 As I tried to say, we didn't want to fight that fight with the

23 union. We acknowledge that. It wasn't that we were giving up

24 something that we thought we had in the first place. We didn't

25 come to the conclusion that we felt it was mandatory for

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1 bargaining.

2

There is no decisions made by Council ultimately on

3 body cameras, and also there has been tremendous money spent

4 already by the City, close to about $850,000, looking into

5 implementing the body camera program.

6

So I wanted to make sure to clarify those things for

7 the record.

8

THE COURT: Very good. Thank you, Mr. Amberg.

9

MS. PROSPER: Your Honor, one more thing -- I won't

10 go to the podium -- about timing.

11

THE COURT: Yes.

12

MS. PROSPER: We respect deadlines. One of the

13 reasons we may seem reluctant to have such a short deadline is

14 we have a new administration starting in January, and we would

15 really like to have the opportunity to check in with the new

16 mayor in January before we finalize a lot of these things. So

17 we are not opposed to deadlines; we are just opposed to

18 unrealistic ones.

19

THE COURT: I understand that. And I look forward to

20 hearing the results of the discussion between the City and the

21 United States.

22

MS. OSOINACH: Thank you very much, Mary, and my

23 legal assistant, Katherine Kehoe, for the video.

24

THE COURT: Watch out for the volume on that.

25

(The video was played in open court.)

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1

(Proceedings resumed:)

2

THE COURT: That is the end of the video, I assume.

3

All right. Thank you very much.

4

Let me invite Mr. Karia on behalf of Portland Police

5 Association.

6

MR. KARIA: Thank you, Your Honor.

7

While our attention has been focused particularly

8 laser-like on the details of the City's technical compliance

9 with the terms of the settlement agreement, we believe it is

10 important for this Court and everybody in attendance to

11 consider an important aspect of our reality in the Police

12 Bureau, which is we are in the midst of an unprecedented

13 staffing crisis. We are facing 10 percent shortage in officers

14 compared to our desired strength of the Police Bureau. We are

15 also anticipating 385 officers will retire within the next four

16 to five years.

17

We have been working diligently with the Police

18 Bureau to ensure that we have focused, constructive solutions

19 to our recruiting and retention problems. We want the best and

20 brightest officers, officers with diverse backgrounds and life

21 experiences.

22

But fixing the staffing crisis will take time, and

23 the Police Bureau has found itself in the position of having to

24 make incredibly difficult cuts to units which serve the public,

25 whether they be the transit division, the traffic division, or

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1 gang enforcement.

2

The staffing crisis has strained the Police Bureau's

3 ability to do the very things we just saw in this video -- to

4 proactively engage with the community, to take time in these

5 incredibly sensitive and important calls.

6

Notwithstanding that shortage, Portland's officers,

7 our members have diligently showed the desire to focus their

8 attention on serving the community in the various ways we've

9 seen, not just in this video, but daily.

10

Time and again we have seen Portland police officers

11 engage with our communities. We have seen them attempt to

12 humanize the badge -- whether it is in simple community

13 relation events like Shop-with-a-Cop or more complex public

14 policy discussions such as Race Talks.

15

Our officers are dedicated, they are diligent, and

16 they are to be commended for their commitment, not just to the

17 community, but to the mental health component of the settlement

18 agreement, which we are here to provide you an update with.

19

For example, as has been mentioned already by the

20 United States and the City, Portland's Behavioral Health Unit

21 has received national attention for its creative and effective

22 approach to handling our community's mental health service

23 needs. We have seen Portland officers volunteer to take on the

24 responsibility, to take on the duties, both to their chief of

25 police and to their community to serve on the Enhanced Crisis

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1 Intervention Team. They want to be part of the solution.

2

As Ms. Brown mentioned, we also have to be cognizant

3 that the solution to our mental health services needs in this

4 city and our community cannot start and stop solely with police

5 officers in the Portland Police Bureau. We cannot forget that,

6 although we demand that our officers are the frontline

7 responders to individuals in mental health crisis, that we need

8 to ensure that there are robust federal, state, and

9 county-funded mental health infrastructures so that we can

10 address mental health issues in a holistic manner.

11

On a daily basis Portland officers handle incredibly

12 important and at times potentially volatile situations with

13 professionalism, skill, and patience. It is what the

14 settlement agreement demands of them. It is what their chief

15 and police commissioner demand of them. It is what they demand

16 of themselves.

17

In our discussions about the City's compliance with

18 the settlement agreement, we must not forget all of these

19 positive steps that our officers have taken, whether they are

20 small steps -- the steps we don't see every day -- or the big

21 steps on larger policy initiatives.

22

To borrow the sentiments from Dr. Rosenbaum, one of

23 the esteemed COCL members in his written sentiments to this

24 Court, for this process to be successful, the process that

25 we're sitting here today discussing with you, Your Honor, we

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1 have to ensure that our officers have confidence in the

2 Police Bureau's leadership; that the system is fair and just

3 for both the community's members and for the officers who serve

4 the community; and that the officers have a voice, as our

5 Police Bureau evolves, under this settlement agreement.

6

To that end and with regard to, for example, the

7 COAB, the Portland Police Association's President Daryl Turner

8 has actively participated in the stakeholder discussions in how

9 to reformulate the COAB so that it is successful. He fully

10 intends and the Portland Police Association fully intends to

11 continue in that endeavor to be part of the solution.

12

With respect to body-worn cameras, while the

13 body-worn camera policy is not in the collective bargaining

14 agreement, we all acknowledge that both under our collective

15 bargaining agreement and under state law both the City and the

16 PPA have an obligation to collective bargain, to negotiate, to

17 come to an agreement through good-faith processes on a

18 body-worn camera policy. We respect that obligation, and we

19 take it seriously. We will continue to negotiate with the

20 City. We will continue to push for our final body-worn camera

21 policy. Even after all the public input, we will continue to

22 talk with the City.

23

We will ensure that it is a cost-effective program;

24 that it respects the rights of our citizens -- their privacy

25 rights, among others -- and it respects the due process rights

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1 of the officers who will be utilizing those cameras.

2

We believe, as the City has said, this is an ongoing

3 discussion. As this Court has mentioned, this is an evolution,

4 and we fully intend to be part of the evolution.

5

Thank you.

6

THE COURT: Thank you, Mr. Karia.

7

MR. KARIA: Thank you.

8

THE COURT: Ms. Albies. By the way, I did receive,

9 and I did read the status report from Albina Ministerial

10 Alliance for Justice and Police Reform. I thank you for that.

11 The Court has also read the report from the United States and

12 the City and from the COCL.

13

MS. ALBIES: Thank you, Your Honor. Briefly, before

14 I introduce Dr. Haines, I want to introduce Kristen Chambers.

15 She is co-counsel. She filed a notice of appearance just a few

16 weeks ago in this case.

17

THE COURT: Welcome, Ms. Chambers.

18

MS. ALBIES: She will be with me for the next couple

19 of status hearings and beyond. The AMA Coalition appreciates

20 the Court's attention to issues in this case and welcomes the

21 Court's invitation to the community to give their perspective

22 as well.

23

To give the AMA's position beyond what's in the

24 status report, I am going to present Reverend Dr. LeRoy Haines

25 who was recently awarded the first annual award of

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1 Advocate for Community Policing by the U.S. Attorney General,

2 which is a great honor. He is a long-time community oversight

3 police reform activist.

4

THE COURT: Welcome, Dr. Haines. Congratulations on

5 that award.

6

DR. HAINES: Thank you. To the Honorable Judge

7 Michael H. Simon and to the other distinguished members of the

8 party, I am the Reverend Dr. LeRoy Haines, Junior, Chairperson

9 of the Albina Ministerial Alliance for Justice and Police

10 Reform.

11

The process of implementation of the court-issued

12 settlement agreement has been a long and hard road, but a road

13 that is necessary for us to get it right and to come into that

14 perfect union in our community. We have seen significant

15 progress in a few areas like the community-based mental health

16 services and the mobile crisis prevention team, yet there are

17 other major areas of the settlement agreement that I want to

18 highlight that significant progress has not been made.

19

The AMA Coalition agrees to advocate for the

20 implementation of the settlement agreement reform. The AMA

21 further agrees to oppose any attempt that is part our aspect of

22 the settlement agreement -- of our enhanced amicus. So we have

23 been diligently engaged. In fact, we set up a couple of the

24 forums in order to continue the process of engagement.

25

In reference to the Community Oversight Advisory

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1 Board and the Compliance Oversight Community Liaison, the AMA

2 Coalition is greatly concerned about the implementation of the

3 community oversight of the settlement agreement. The COAB got

4 a rocky start. Thirteen members have resigned due to lack of

5 support from sometime the City and sometime also from the

6 Bureau as well as other personal issues.

7

The City and the COAB itself has made over 50

8 recommendations and unclear expectations regarding the Board's

9 role and its purpose became also a hindrance. This is an

10 alarming number considering that the Board has had only 15

11 members. Many of those who resigned were Council appointees

12 rather than those that were at large. In addition,

13 Kathleen Saadat was appointed to replace Judge De Muniz after

14 he stepped down on April 20, 2015 as chair of COAB and COCL.

15

Despite pleas from the AMA Coalition in numerous

16 meetings of the selection of new members, we have a

17 disagreement respectfully with the City, but it has not taken

18 action to fill the vacancies. The AMA Coalition participated

19 in discussions with the City on plans to fill vacancies thereby

20 committed to at-large members of the COAB, but the City did not

21 implement those plans.

22

There are currently four vacancies on the COAB that

23 the commission can fill by appointment. They have not done so.

24 As a result of the City's failure to appoint replacement

25 members, the COAB lacks a quorum to carry out its most

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1 important work.

2

On July 11, 2016, the COCL team requested that the

3 settlement agreement be amended to separate COCL and COAB

4 because of its contractual obligation relating to community

5 oversight.

6

On August 19, 2016, the DOJ agreed with the City to

7 place COAB on a 60-day recess while the City worked out changes

8 to the constructure, which it would present to DOJ as a

9 conceptual amendment to the settlement agreement. As a result,

10 the work of COAB was put on hold, as it could not meet and hold

11 votes.

12

The AMA Coalition opposed this period of time and

13 felt that it could have about done parallel; that we could have

14 had parallel structures moving at the same time in trying to

15 come up with structure changes as well as keeping the COAB

16 moving. So we strongly opposed this recess and raised concerns

17 in advance that this would be seen as abandonment in the eyes

18 of the community of the settlement agreement. The AMA

19 Coalition instead asks that they would provide for a settlement

20 agreement and that the city commissioners appoint members of

21 the COAB so that the work would continue.

22

The AMA Coalition has serious concerns that the City

23 will request more and more time from the DOJ to develop a new

24 COAB and select new members. Any further delay will harm

25 public perception and engagement of community involvement, and

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1 police accountability will also prolong the non-compliance in

2 the settlement agreement.

3

It reminds me, as a young civil rights worker, when

4 we were marching to break down the laws of Jim Crow, that we

5 had a theme "Freedom now," but folks kept saying, "Wait, wait."

6 We waited a hundred years, but never got nothing done.

7

The AMA Coalition met with members of the COAB and

8 representatives from the City regarding moving forward with

9 improvement to the COAB structure. Based upon these meetings,

10 the AMA Coalition made several recommendations to the City

11 regarding the COAB structure, and these include:

12

1. The COAB would have adequate funding.

13

2. The COAB would have no bars in hiring its own

14 staff.

15

3. The COAB staff would be able to fill roles of

16 management, administrative support, and community organizing.

17

4. The COAB members would receive stipends,

18

5. The COAB chair would be selected from its

19 membership and serve the role of a traditional board chair with

20 a facilitator available, if needed. ***he skips 6

21

7. The number of city appointees to be limited to

22 two to three members.

23

8. A criteria be established for the selection of

24 Portland Police Bureau members of the COAB, including having

25 expertise in the areas addressed by the settlement agreement.

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1

Moreover, the AMA Coalition has advocated the funds

2 allocated to COCL to be redirected towards the COAB in light of

3 the COCL request to seize operation of oversight of the COAB.

4 The AMA Coalition understands that the COAB members themselves

5 have proposed a court monitor. The Coalition is concerned with

6 that proposal that it may eliminate community engagement and

7 meaningful involvement in the oversight process.

8

The City provided the AMA Coalition with a

9 confidential proposal regarding the new COAB on October 12,

10 2016. The AMA Coalition met representatives from the City,

11 DOJ, and PPA to discuss that proposal on October 14th, 2016.

12

At the meeting the AMA Coalition provided its

13 criticism of the proposal, and the City proposed that the COAB

14 hold public meetings to seek input directly from the public on

15 the COAB structure. The City indicated, as several former COAB

16 members had recently resigned, were willing to reconvene for

17 that purpose.

18

The COAB serves an extremely important function as to

19 the community laws and oversight of the implementation of the

20 settlement agreement. The process and decision making of COAB

21 should be transparent and accessible to the public and

22 community.

23

In light of that, the AMA Coalition does not oppose a

24 plan to seek proposals for former COAB members, so long as the

25 current COAB members continue to do the work of COAB as well as

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1 discuss how to move forward.

2

The COAB is gravely concerned that the original

3 60-day hiatus, which ended on October 21st with no plan in

4 place to implement the settlement agreement reform related to

5 community oversight implementation of the settlement agreement.

6

The AMA Coalition also notes that in the year and a

7 half in implementation of this agreement there has been little

8 development of community outreach engagement plan pursuant to

9 the settlement agreement.

10

In the area of the 48-hour rule, as the Court is

11 aware, the AMA Coalition has long advocated 12 years ago,

12 beginning with the Kendra James case, that the provision of the

13 PPA collective bargaining agreement, that officers involved in

14 serious use of force have 48 hours providing a statement on the

15 incident. The Coalition has repeatedly criticized that

16 provision. It runs counter to national standards and policies

17 of best practices. The settlement agreement in paragraph 124

18 required that the PPA review its protocols for compelling

19 statements and revised them as appropriate according to the

20 applicable law and current professional standards.

21

The City recently approved changes in its agreement

22 with the PPA removing the concrete language of the 48-hour rule

23 embedded in the contract. We are thankful for that. The AMA

24 Coalition welcomes it and appreciates this long overdue chain.

25

The elimination of 48-hour rule, however, did not

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1 fully address the problem with officers' statements. The

2 City's tentative agreement, which clarifies the contract, would

3 become city policy and provides that the officer be afforded a

4 reasonable opportunity to review the officer police report and

5 body cam audio/video before submitting to an investigative

6 interview in not deadly force cases.

7

As a result, this could potentially circumvent the

8 purpose of eliminating the 48-hour rule when it comes to Taser

9 less than deadly force cases, as officers would have the

10 opportunity to review footage without clear time limitation.

11 Furthermore, officers might have decided not to cooperate with

12 the on-scene investigation of the less than lethal force by

13 sergeants that would implement it as part of the agreement if

14 they feel they need to review the video.

15

I want to say, Judge Michael, this is one of the most

16 volatile issues, not only in the city of Portland, but in our

17 nation today. The communities throughout this nation and in

18 the city of Portland feel that this is an undermining of

19 community policing; that it is undermining the settlement

20 agreement; and that it is undermining the relationship that has

21 been built so far with the Portland Police Bureau. That

22 particular provision has created such outage in our

23 community -- not only in Portland but throughout this nation.

24

So the AMA Coalition has serious concern about the

25 manner in which the City has negotiated the agreement with PPA.

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1 The outgoing mayor and the PPA negotiated the agreement without

2 public participation. This was a departure from a prior

3 practice, which allowed the public to observe at least some of

4 the bargaining session.

5

The AMA Coalition and other community groups have

6 strongly advocated the City to consider proposed changes to the

7 CBA's several areas of accountability, not just limited to the

8 48 hours. But the City does not appear to advocate or propose

9 these changes in the bargaining agreement.

10

In addition, the AMA Coalition is outraged regarding

11 the manner in which the City passed the ordinance adopting the

12 agreement and the time was moved up for consideration. There

13 could have been more community input. The way that it was

14 handled, it was not handled in what we call "the Portland way."

15

The City's use of police to get the civil

16 disobedience protestors out of City Hall was an overuse of

17 police force.

18

Also, we believe in terms of the independent police

19 review and the citizen review committee, in the settlement

20 agreement, paragraph 123, the AMA Coalition has advocated for a

21 less complicated system for police oversight and for increased

22 power for the IPR, including the authority to compel officer

23 testimony and the ability to investigate serious use of force

24 in cases involving the death of community members.

25

The proposals would reduce the complexity of the

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1 current system, which has two different entities -- IPR and

2 Internal Affairs, IA -- conducting administrative

3 investigations of the use of force incident.

4

In addition, under the current IPR system, the IPR

5 cannot interview an officer unless a bureau member is present

6 in order to comply with the restriction on IPR authority

7 embedded in the agreement with the union.

8

The new agreement, however, maintains that the

9 provision that prohibits IPR from conducting investigations in

10 deadly force cases and from compelling officer testimony. The

11 City failed to bargain or address the issue, and the agreement

12 prohibited effective oversight of the Portland Police Bureau by

13 IPR and hinder accountability and effective oversight. The

14 City auditor and director of IPR weighed in regarding their

15 frustration with this, and we wonder whether that was a

16 consultation process to get their opinion during the

17 negotiation.

18

Auditor Caballero wrote that a significant

19 overarching concern is that the proposed collective bargaining

20 agreement was negotiated with no notice to community

21 stakeholders and a break from previous contract negotiation.

22 IPR was not notified that the City was engaged in the

23 collective bargaining with the Portland Police Association, and

24 the City did not request IPR input.

25

We are concerned, Judge Michael, that the veil of

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1 secrecy has been invoked in the proposed contract, and its

2 creation stands to do long-term harm to the City's effort to

3 build a strong police-accountability system.

4

Also, the AMA Coalition agrees with Auditor Caballero

5 that the IPR's current practice of interviewing through the IA,

6 necessarily be left intact by the City's failure to address the

7 IPR, does not address the City's obligation under the

8 Department of Justice's settlement agreement, which requires

9 that the IPR be provided with the means to conduct independent

10 investigations of police officer misconduct. As such, the AMA

11 Coalition believes that the City failed to address these

12 issues.

13

The City auditor proposed changes to our IPR and CRC,

14 which include limited public input in CRC hearing and creating

15 an appeal panel with a smaller number of CRC members to hear

16 the appeal. The AMA Coalition strongly opposes any limit on

17 public involvement; any decrease in diversity of the appeal

18 panel.

19

We find that the proposed agreement of an attempt at

20 least to convene another stakeholder group to deal with

21 proposed changes of IPR and CRC, and the AMA Coalition intend

22 to participate, but we also want to understand that there are

23 other topics that need to be addressed.

24

Finally, I want to talk about the body camera. In

25 approving the settlement agreement, the Court acknowledged the

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1 role that the body-worn cameras could play in the role of

2 police oversight.

3

To that end, the AMA Coalition expects the City to

4 engage with the community, not as a footnote or an afterthought

5 after designing a proposal, but to be engaged from the

6 beginning, engage in drafting a proposal related to policies of

7 body-worn cams.

8

The City solicited input from the public in a forum

9 that we believe, as we count, our count is three forums with

10 little notice and a small public participation. However, when

11 the proposal was introduced in the agreement, with negotiation

12 with the PPA, that draft created a struggle within our city.

13

The AMA Coalition was one of many community groups

14 who opposed the proposed policy, as written, because it affords

15 the officer to review body camera footage before writing their

16 reports. Because the City concedes the issue when the officer

17 could review body camera footage is subject to mandatory

18 bargaining under state law, the AMA Coalition notes that the

19 City did not even appear to seek a legal opinion from the city

20 attorney on the issue of whether there was an issue subject to

21 permissive mandatory bargaining until the day before the City

22 adopted the new contract. It appears the City did not get the

23 legal opinion prior to bargaining and submitting this proposal.

24

The AMA Coalition has been clear in its opposition to

25 officer reviewing footage of excessive force and other serious

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1 incidents. I just want to say that we feel that this will be a

2 backstep to eliminating the 48-hour rule for officers in

3 writing up their report to be able to review the body cam

4 footage.

5

We thank you, Mayor. We have been at this over 12

6 years on the battlefield -- for 12 years. We are at this

7 point, and we still believe that we can come out with a

8 community policing program that will be a model for this

9 nation.

10

Thank you very much.

11

THE COURT: Thank you very much, Dr. Haines.

12

Anyone else from the AMA Coalition?

13

MS. ALBIES: Yes. We have Dr. T. Allen Bethel, who

14 is co-chair of Justice for Police Reform.

15

THE COURT: Good afternoon, Dr. Bethel.

16

DR. BETHEL: Good afternoon, Judge Simon, and all of

17 the esteemed counselors who are here, and my friends who are

18 part of this community. I will take a couple of minutes to

19 just reiterate a few things and make a statement.

20

In regards to the proposal by the Department of

21 Justice to have a status conference in a 30-day period, plus 90

22 days, and whatever else to come, we are not opposed

23 conceptually to the idea. Our concern is the delay that may

24 occur, if and when this is extended. What we would like to see

25 is exactly what it seems the City doesn't want, which is a

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1 deadline.

2

Judge Simon, if you might remember, I stood on that

3 side of the courtroom during the fairness hearing. One of the

4 things that I said that you needed to retain was the hammer. I

5 walked in this room today to say that the City is out of

6 compliance. They snuck the COAB back in so they wouldn't have

7 to face that. But for 60 days they were out of compliance,

8 even though I know they got the agreement with the DOJ to do

9 that.

10

Since the 21st of October, there has still been

11 nothing that has happened. So I still think I want to ask you

12 to drop the hammer on this non-compliance.

13

THE COURT: If I can interrupt you for one second to

14 make sure we are on the same page. Under the settlement

15 agreement, I don't have a hammer yet. Under the settlement

16 agreement, I do not have a hammer until the U.S. Department of

17 Justice files a motion to enforce the settlement agreement,

18 after going through the notice provision and the mediation

19 provision.

20

But under the settlement agreement they have to give

21 notice to the City that they are out of compliance. They have

22 to go through the other steps outlined in the settlement

23 agreement. Then they file a motion with me. That filing a

24 motion with me is the legal equivalent of handing me the

25 hammer. I will exercise my authority with that hammer, in my

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1 opinion, judiciously, fairly, appropriately, and consistent

2 with the Rule of Law. But I don't have a hammer until it is

3 handed to me, consistent with the settlement agreement. I want

4 to make sure we are on the same page.

5

I am sorry for interrupting, but now I look forward

6 to the rest of your comments.

7

DR. BETHEL: That's no problem at all, Judge. You

8 have the right interrupt any time you want. You are the judge.

9 This is your courtroom.

10

THE COURT: I wasn't going to say that. (Laughter.)

11

DR. BETHEL: But I understand your position and you

12 made that very clear at the fairness hearing as well. We still

13 have that understanding, and we are still on the same page.

14

That hammer is not so much perhaps in the legal sense

15 now, but to help encourage us to set deadlines. We set

16 deadlines with some stipulations in there that the AMC and all

17 the parties will be able to receive information in a timely

18 manner. You cannot be expected to be called to a meeting two,

19 three days out and try to reach something. I feel that the

20 last two weeks, even though we met in good faith to talk about

21 getting this COAB process restarted, was a push to have

22 something to be said by the time we got here to this status

23 hearing.

24

If the judge would be so kind to re-read the City's

25 submission -- I don't have it before me. In one place they do

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1 reference they have had a meeting, and the implication seems to

2 be that they've had another meeting to continue to discuss the

3 restructuring of the COAB. I find it very amazing that the

4 report can be submitted several days ahead of the second

5 meeting and yet already be included in there as having

6 happened.

7

So my support, my statement, as we talk about these

8 deadlines, let's impose the deadlines, and let's work on them.

9 We have come enough times downtown. We've gathered together at

10 the last minute to try to put a forum together to be able to

11 have an opportunity to talk about some changes. We are tired

12 of doing that. We are tired of being disappointed with the

13 delays. We want to see some action as we move forward.

14

This process of selection and getting alternates and

15 all, the first COAB meeting at the library with Judge De Muniz,

16 during a break I mentioned to him, "We don't have a process in

17 which to replace anybody." He said, "Okay, we are going to

18 work on that." We are two years in, and we still don't have

19 that process. When will we get the process? When will the

20 City finally say we are going to give the City something to

21 deal with? And when will the City listen to us? Listen to

22 us -- not with your ears -- but with your understanding.

23

Bear in mind that you have to make decisions, as the

24 mayor and as the council. I do want to remind you that you are

25 serving at the pleasure of these, who are your constituents.

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1 We know that as we put you in that seat, we know how to take

2 you out of that seat. You all are going to want to respond to

3 the community and what we feel needs to happen for us, and I

4 think we are going to mount some campaigns to take you out of

5 your seats and find somebody who is willing to say they are

6 going to do it during campaign time, but they will do it during

7 that time.

8

Public meetings and discussions of the Portland

9 Police Association contract. Our current mayor said during the

10 campaign, "I know how to make that happen. I'll take several

11 other council members with me, and then it will become a public

12 meeting, and the public can be there and hear." He didn't get

13 it.

14

During this time of the injury, we want the COAB

15 fully functioning during this time being able to carry out its

16 work, being able to give recommendations so that we can reach a

17 conclusion of reinstating a full COAB that's functioning with

18 its powers and its duties. Whatever becomes the intended plans

19 of the City, don't keep them until you hand us a document a

20 couple of days before and say, "Read this and let's discuss."

21 Come to us on the front page.

22

I am reminded, as I am moved to my seat, when I was

23 about eight years old I used to go up to New York. You see, I

24 grew up in the country. We couldn't afford to ride the

25 expensive train. We had to ride what was known as "the local."

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1 The local would come. Sometimes the local would be late,

2 because it would break down. It could never get to where it

3 was supposed to be on time.

4

We set there impatiently and waited, and it took time

5 to hear the train horn blow. The old riders would say, "Oh,

6 that's not it." And I was all excited, because the train was

7 finally coming. But it didn't come. Finally the horn blew and

8 they said, "There she blows," and all we got up and got ready

9 to make that trip.

10

City of Portland, the horn has blown. There she

11 blows. Let's make this trip.

12

THE COURT: Thank you, Dr. Bethel.

13

Ms. Albies, anything further from AMAC at this time?

14

MS. ALBIES: Nothing further. That you very much.

15

THE COURT: Thank you very much.

16

I would like to hear from the compliance officer and

17 the community liaison, whether it be Dr. Rosenbaum, Dr. Watson,

18 Dr. Christoff, or some combination.

19

Dr. Rosenbaum, welcome.

20

DR. ROSENBAUM: Thank you. I am Dennis Rosenbaum,

21 Compliance Officer and Community Liaison, or COCL. I am going

22 to present for a few minutes and then leave the time for

23 Dr. Watson to discuss the mental health components of the

24 agreement.

25

I will start by saying that I am a proud native of

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1 Portland, Oregon. It is a great city, and it can even be

2 greater.

3

Our compliance assessment and our rating system is

4 evidence-based in the sense that we've spent months of field

5 observations and one-on-one interviews and focus groups and

6 surveys of all the police personnel and reviews of documents

7 and analysis of incident data, et cetera. We are not only

8 looking here for compliance with specific terms of the

9 agreement, but we also examine the capacity of data systems to

10 capture the right information about the process of reform and

11 about the impact of reform.

12

Finally, I want to say that through technical

13 assistance and consultation, we've advised the Portland Police

14 Bureau about best practices and evidence-based policing so that

15 Portland can actually reach beyond the requirements of the

16 settlement agreement to a higher level of professional

17 practice.

18

At this point, you know, I know that there is

19 frustration in many ways, but our general conclusion is that we

20 see the City independently, quite frankly, I want to say that,

21 because I don't live here now. We see the City and the

22 Portland Police Bureau working quite hard in most areas towards

23 substantial compliance with the terms of the settlement

24 agreement. But at present, they've obtained only partial

25 compliance with most of the areas. It is definitely, as you

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1 said, Judge, an iterative process. It is going to take time.

2 But there has been progress, and I think we have to acknowledge

3 that.

4

First, I'm going to talk about Section 3, use of

5 force. I will comment on that. The Bureau's policies on use

6 of force and supervisory review of force incidents are being

7 revised based on feedback from DOJ, from the COAB, and from the

8 COCL's team of force experts. Most of the problems with that,

9 with the language, the definitions, the procedures have been

10 corrected, in our opinion. Unfortunately, that policy review

11 process -- and there are many policies -- has been extremely

12 slow. I think to help expedite that, recently the City and the

13 Police Bureau have committed more resources to that, and we

14 have offered, as the COCL, to help the Department of Justice

15 with its review process to help speed that up.

16

Regarding the management of use of force within the

17 police bureau, the most noticeable improvement, I think since

18 last year, has been the successful implementation of the force

19 audit. DOJ has already talked about that as well as the City,

20 so I won't belabor that much.

21

We helped develop that system with the Bureau. Since

22 it was implemented in January of this year, the audit system

23 has been quite successful at identifying errors in the way that

24 force reports and force reviews are done. Now the inspector is

25 sending these audit reports back through the chain of command

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1 to the appropriate assistant chief for corrective action.

2 Hopefully that feedback loop will prevent future mistakes in

3 report writing.

4

But the next big step, frankly, is a more challenging

5 one, which is to take data and use this force audit to identify

6 force patterns and force that's inside of policy, force that's

7 outside the policy, force that is questionably justified, and

8 those results will have important implications for training and

9 for the Employee Information System and intervening, frankly,

10 with employees who need assistance. So overall I think the

11 audit program is progressing quite well, but there is a lot yet

12 to be done now to put it to work

13

Last year we reported the Bureau's new record

14 management system, this RegJIN. It was a huge obstacle, the

15 compliance with the force reporting requirements, and it caused

16 a backlog of 17,000 cases within the police bureau. Just

17 briefly I want to say that we worked with them. They

18 identified 14 areas of problems in the system; eight of those

19 have been addressed pretty seriously. They have resolved this

20 to the point where 94 percent of the backlog cases of those

21 17,000 have been eliminated, and 2016 is up-to-date. So within

22 the next month or so they should be caught up on that.

23

THE COURT: I thought I read it was November 1st.

24

DR. ROSENBAUM: November 1st, it should be.

25

THE COURT: That's next week.

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1

DR. ROSENBAUM: Yeah. They are very close. There is

2 only 1,000 out of 17,000 left. So the RegJIN system, though, I

3 want to say, continues to have problems such as development of

4 the software to properly analyze the data once you get it in

5 there on force.

6

Also, we have concerns, frankly, from interviewing a

7 number of officers on the street. They feel the system is a

8 major burden. There are hours of time spent every day entering

9 data and extracting data because of the cumbersomeness of the

10 system. So it reduces their time they feel to do other

11 proactive kind of policing. So we are going to investigate

12 that more in the months ahead to see if that is really a flaw

13 in the system and to what extent that can be alleviated with

14 better training, et cetera.

15

Moving on to training, Section 4, I don't need to say

16 this, but I'm going to because I'm a big fan of training. It

17 is an essential component of police reform that can be used to

18 educate officers about new policies, communicate new values and

19 priorities of the Bureau and strengthen their skills and

20 tactics that reduce the probability of using force. They were

21 required in the settlement agreement to do a number of

22 things -- identify training needs.

23

To do that, they've utilized a wide number of

24 sources, but we also feel they also need to get more community

25 input on that and also more rank-and-file officers and not just

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1 command-level folks

2

To evaluate training, we have spoken with them

3 extensively, and they've chosen to adopt what is called the

4 Kirkpatrick model of evaluation, which is basically four

5 questions:

6

How well was the training developed and delivered?

7

Did the officers learn anything in terms of knowledge

8 and attitude change?

9

Did the training affect their actual behavior on the

10 job?

11

Finally, did it change the organization? Did it

12 change the way they're doing business? Did it change the

13 police culture, et cetera?

14

We believe that's a sound model, quite frankly, but

15 it must be implemented rigorously so that both the Bureau and

16 the community has confidence that, in fact, this training is

17 being delivered in the most effective way. So we have given a

18 lot of recommendations there, frankly, to help them improve

19 that through technical assistance reports.

20

In terms of training coverage, we are very impressed

21 with the quality and quantity of crisis intervention in

22 Portland. Dr. Watson will talk more about that, but we still

23 encourage the Bureau to explore different options to strengthen

24 an officer's communication skills -- that's such a big deal

25 today in policing -- and the tactics for all situations that

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1 involve intense emotions and non-compliance by community

2 members with officers' instructions

3

For example, right now there is very innovative

4 training being developed in de-escalation and procedural

5 justice in other parts of the country, and we encourage the

6 City to participate in that.

7

Section 7, Employee Information Systems. That's part

8 of the settlement agreement. The Bureau has agreed to enhance

9 its Employee Information System to learn -- to more effectively

10 identify at-risk employees, supervisors, and teams to address

11 potentially problematic trends.

12

Now, over the past year the Bureau has made some

13 headway with its EIS system, but we continue to maintain that

14 much more can be done using EIS to intervene early with at-risk

15 employees, to prevent force problems, to save officers'

16 careers -- to put it in a positive way -- and even identify

17 those few officers that should be removed from the Bureau.

18

First, we believe that there is thresholds that

19 they've created in the settlement agreement. We disagree with

20 those thresholds. We think they are too low and too lenient.

21 For example, an officer has to have used force three times more

22 than the average officer on the same shift in order to be

23 identified as one of the thresholds. You're just not going to

24 get too many people that way.

25

Secondly, we recommend the Bureau work with experts

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1 to use advance statistical modeling to identify the best

2 predictors of adverse events. This is being done. This is the

3 kind of creative thinking that I think the Bureau is capable of

4 doing -- going upstream to identify risk factors that

5 contribute to force. In other cities, for example, in

6 analyzing a thousand algorithms have discovered things you

7 wouldn't predict, like the number of calls an officer has

8 handled that involve suicide increases that officer's

9 probability of using force. Is that stress? We don't know

10 what's going on.

11

Other factors: Days off -- sick leave. Excuse me.

12 But again, the best predictor -- I am a psychologist by

13 training. The best predictor of future adverse events is past

14 adverse events. There are patterns in behavior and in data.

15 But this EIS should not be a substitute for good supervision; I

16 will say that a hundred times. It is a tool to help the

17 Bureau.

18

Third, when an officer is flagged in the EIS system,

19 we have requested that the Bureau document the decision-making

20 process and rationale for those decisions. That has not

21 happened today. We hope that that does happen. Otherwise, it

22 is kind of a black box. Specifically, for those of you who are

23 not familiar with this, these EIS administrators go through

24 these force reports, and they flag and determine whether there

25 is a problem with an individual case.

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1

We don't know why is a particular case flagged? Why

2 are more than 90 percent of the flags not forwarded for

3 supervisory review, but disposed of that EIS administrator?

4 When cases are forwarded to supervisors, what decisions are

5 being made to address the problem by those supervisors? What

6 type of intervention was recommended, if any? Training,

7 restraining, coaching, counseling, or discipline. We don't

8 know.

9

Finally, down the road, we'd love to know what the

10 effects of those interventions are on future officer behavior.

11 So there is a lot of missing pieces yet that need to be put

12 together. I am confident that they will be over time. Again,

13 we all have to be vigilant and stay with this.

14

Finally, I want to say that this process is somewhat

15 new, but the measurement systems, again, need to be created now

16 to document both current process decisions and future outcomes.

17

Again, EIS is a tool to help officers avoid

18 potentially career-ending events, and we feel it needs to be

19 utilized more comprehensively as a tool for supervisors and

20 managers.

21

Section 8, officer accountability. That has been

22 talked about today. The events surrounding -- I should say --

23 I do want to make a comment. The events surrounding the chief

24 of police -- the previous police chief kind of tainted, I

25 think, the public's view of accountability and policing.

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1 However, I do want to say that the restructuring of the Bureau

2 that resulted from that gives me confidence that there is a

3 silver lining here.

4

Chief Marshman has done a number of changes that have

5 dramatically restructured things so that both the status and

6 the resources that are devoted to accountability and to

7 oversight functions through this new strategic development and

8 oversight group are significantly better than what was in place

9 before.

10

So by upgrading and integrating these functions,

11 including training under this one group, there is a higher

12 probability, frankly, even though it has yet to be seen, that

13 the reforms will be infused into the Bureau's overall mission

14 and the daily operations of the Bureau rather than something

15 imposed by DOJ, the COCL, or someone else.

16

There has been talk already -- while we are talking

17 about accountability -- of the Independent Police Review. We

18 have seen some steady increase in the number and quality of the

19 investigations of community complaints, but certainly there is

20 still lots of room for improvement, and the civilian oversight

21 continues to be a source of contention. I don't need to tell

22 you guys that. You know that better than I do.

23

Public debate. The accountability process, including

24 the 180-day timeline for complaint resolution, has hit

25 roadblocks. Consequently, at this time there is no approved

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1 plan for a revised accountability process yet.

2

In terms of on-scene statements, I can't say -- we

3 have been working on this 12 years, but certainly in our very

4 first statement here more than a year ago we recommend the

5 elimination/abandonment of the 48-hour rule. That was based on

6 research and findings in other cities as well as the loss of

7 public trust in the system. We are very pleased that that

8 clause has been removed from the latest police contract.

9

I do want to recognize and have us be cognizant of

10 the accountability process from the police officer's view. The

11 only person here who probably mentioned that was you. Our

12 survey data shows that nine out of ten of the survey

13 respondents of officers in Portland do not feel that officers

14 who consistently do a poor job are held accountable. Eight out

15 of ten feel that officers who do a good job are not praised.

16

Again, this idea that the administration -- the

17 ability to recognize and respond appropriately to positive and

18 negative performance by individual police officers was

19 identified by the officers themselves as one of the more

20 serious accountability problems that needs to be addressed.

21

THE COURT: Although in that area, in addition to

22 Mr. Karia's comments, the video shown by the City of Portland

23 showed some superb behavior by police, and I praise them for

24 that. I know they have already been praised, and I will add my

25 praise to them for that.

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1

DR. ROSENBAUM: Yes, absolutely. I think there could

2 be positive trends there with a new administration and a new

3 police chief, who I see who is here today, Chief Marshman.

4

Section 9, community engagement and the creation of

5 the community oversight work. Well, that's a big one. There

6 has been plenty said about that. That's the COAB, one of the

7 primary mechanisms that was created for community engagement.

8 We, frankly, have done our best to support and facilitate the

9 work of this body. We have employed some of Oregon's most

10 respected individuals to chair and be the presiding officer of

11 the COAB, including former Oregon Chief Justice Paul De Muniz

12 and community leader Kathleen Saadat, who is here today in red.

13

They did a fantastic job, in my opinion, under the

14 circumstances. But with input from the City and DOJ, and given

15 the level of disruption that you've all heard about already

16 that was faced, we were forced, frankly, we felt to change the

17 venue at one meeting, to schedule meetings differently, to keep

18 members of the COAB and the community safe, and to keep the

19 business of the COAB moving forward, which was part of our job.

20

It wasn't perfect. Some people objected to it, but

21 we felt it was the best we could do under the circumstances.

22 Apparently nobody -- the City, DOJ, the COCL, ourselves, or

23 members of the COAB -- had any idea how difficult and

24 challenging it would be to create and support this advisory

25 body and keep control of these meetings and keep them moving,

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1 frankly, in this current environment.

2

So despite some early successes, and there really

3 were some, so let's not forget them. In the final analysis the

4 COAB, as currently conceived, did not work. We do not feel it

5 is our position to opine on the reasons for this outcome,

6 although I could spend an hour doing that --

7

THE COURT: No, you can't.

8

DR. ROSENBAUM: I could, but I can't here exactly.

9 We tried to keep the parties, though, all of us, on the hot

10 seat to deal with this, and it has been a challenge. However,

11 we did officially request that the COAB and the COCL be

12 separated so that the investigation of compliance with the

13 settlement agreement could be independent of the process of

14 community engagement. We will, however, continue to uphold our

15 responsibility to chair the COAB until such time as the

16 settlement agreement has been officially modified.

17

I want say, though, for those people -- there are

18 various perspectives on this, but I personally have devoted

19 much of my professional career over the last 35 years to deeply

20 understanding and trying to improve police-community relations.

21 I have written books about stuff. I've talked about this. I

22 deeply value the importance of community engagement in public

23 safety and in policing and truly hope the City can arrive at a

24 workable model that gives voice to the many different

25 stakeholders that make up Portland.

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1

I just wanted to make a couple of closing comments.

2 Obviously this is a very difficult time in the history of

3 policing nationwide and certainly here in Portland. I think

4 community members rightfully are angry about police injustices

5 over the years and are demanding change and accountability.

6

We encourage everyone, however, to think about the

7 best ways to achieve reform in policing. Just a couple of

8 quick thoughts: My biggest hope is that everyone approaches

9 this reform with sincere intentions to help improve the

10 Portland Police Bureau through constructive criticism and

11 collaborative reform.

12

I am saddened by -- I think we have to be vigilant

13 all the time of government. There is no question. But I am

14 saddened by the distrust of motives and the lack of cooperation

15 in many ways about this. I feel strongly that greater

16 transparency, trust, listening, and empathy in all directions

17 could go a long way toward finding common ground and achieving

18 the goals of the settlement agreement.

19

Secondly, as someone who has spent a lot of time

20 studying police behavior and organizational behavior in 100

21 American cities, I caution Portland that reforms can backfire

22 if they are viewed simply as systems of punishment for all

23 employees within this organization, when the actual number of

24 bad cops, I have learned over the years, is relatively small.

25 Yes, there is rudeness. There are other various things that go

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1 on, I know that. But really bad cops are rare.

2

But my point here is our research and other research

3 by other scholars suggests that organizational change and

4 reform is more likely to occur when officers have confidence in

5 the leadership of the organization, when they feel the reasons

6 for change have been clearly explained to them, when they

7 believe the system that they are working in is fair and just,

8 and they believe they have a voice in the process. Just as the

9 community here has expressed its desire for a voice, so do

10 officers. It is about them. It is about their lives, their

11 careers, their families. Unfortunately, I usually don't hear

12 much about that.

13

Our surveys, for example, recently in Portland

14 document the serious downward decline in those things I've just

15 mentioned over the past year, where it has resulted in the 36

16 percentage point drop in job satisfaction in 2016 versus 2015

17 among PPB officers. The last survey I should say was finished

18 prior to the appointment of the new chief.

19

One potential adverse effect -- I'm pointing this out

20 for a reason. I'm not some cop chaser who believes in let's

21 support the police all the time. I've just spent a lot of time

22 thinking what they are going through. There is a need for

23 reform.

24

One potential adverse effect is what we call

25 de-policing. You have heard about that, the post-Ferguson

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1 effect, whatever you want to call it, where officers reduce

2 their effort on the streets to avoid punishment.

3

In fact, even the vast majority of officers in our

4 survey told us that they are much less willing now to stop

5 anybody who is suspicious, to use force, et cetera. Some of

6 this you could argue is good news. We want them to maybe use

7 less force.

8

But the alternative of this kind of proactive

9 policing is what we call reactive policing, where the police

10 just lay low, do the minimum amount, respond to the calls they

11 have to do -- this is just not Portland. I have been in many

12 cities where I hear this.

13

One of the consequences of that -- we have studies in

14 many cities that show that proactive policing actually reduces

15 crime and violence and disorder, whereas officers who just lay

16 back, don't do much, doesn't help. I am not saying they are

17 all going out and doing this. Good cops will go out and do

18 their job every day. But there is right now a mood of not

19 wanting to do as much.

20

I want -- my last point, use of force, for example,

21 is an absolute necessity in some situations, and we must expect

22 that police -- we gave the police the authority to do that. We

23 must expect them to exercise that authority, when there is no

24 alternative at all. We don't ever talk about that. I hope

25 that's part of the dialogue, because most -- force is a complex

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1 issue that we don't talk even about.

2

Anyway, in light of all these organizational dynamics

3 and realities, my advice to the City is this: Not only does

4 the Bureau need strong leadership that values positive

5 community engagement and transparency, it also needs leadership

6 that can create a system of accountability and supervision that

7 rewards positive action and decisions by officers and holds

8 officers accountable for poor decisions that put lives at risk

9 and threaten the legitimacy of the Portland Police Bureau.

10

Our first impression is that the recent

11 reorganization of the Bureau appears to be a major shift in the

12 right direction.

13

Thank you, Your Honor. Dr. Watson is --

14

THE COURT: I do want to say this. I have read the

15 entirety of your report and Dr. Watson's. It is 18 pages. I

16 have read the entirety of it. It is available on the public

17 record. It is Docket 129, filed yesterday in the public

18 record. I have read the entirety of it.

19

I do want to turn to some of the other people that

20 would like to speak. I would like to see if we can conclude

21 this by 5:30.

22

So let me ask, Dr. Watson, is there one or two points

23 you would like to make very briefly, but speaking slowly. If

24 it is one or two minutes, if you possibly can. I have read the

25 entirety of your report, and it is public record.

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1

DR. WATSON: I will try not to cover something that

2 has already been covered by other people's testimony. I think

3 one of the important things is just looking at the City's

4 crisis intervention model. We know that it varies somewhat

5 from the Memphis model, where the Memphis model has a CIT

6 officer/specialist officer dispatched to any

7 mental-health-related call.

8

The Portland model has an CIT officer dispatched to

9 calls meeting the criteria that is a little bit narrower than

10 that. So it is just a subset of the calls. There are some

11 reasons for that. Part of that, it is hard for the City to do

12 the Memphis model when they already have everybody with 40

13 hours of crisis intervention training.

14

The other thing is the Memphis came out in 1988,

15 where most rank-and-file officers had at best about three

16 hours' training responding to what was then called aberrant

17 behavior. So your floor competency for most officers was very

18 low. I think the expectation of policing generally in Portland

19 is higher than that now. So that could be part of, I guess, an

20 argument for the particular Portland model.

21

What we don't have right now is the data to assess

22 the extent to which the current criteria that the ECIT capacity

23 can meet the need for calls that meet their current criteria or

24 the data to look at if there is reason to expand that criteria.

25

So I think as the City moves forward with the

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1 implementation of their mental health mask, which is a data

2 template for actually collecting data on mental health calls so

3 they can look at that -- will be better able to opine on -- is

4 the current criteria adequate to really meet the needs of the

5 community for a specialist that responds to certain

6 mental-health-related calls? So I think that's something that

7 there is a lot of progress that has been made. It is something

8 that we need to continue to watch and work with the City on.

9

Also, I think I would encourage the City to take a

10 look at the data from the Bureau of Emergency Communications.

11 We didn't get that for our current outcomes report. We are

12 hoping to look at that soon. But look at the calls that they

13 identify as meeting criteria for an ECIT response: Is there

14 somebody available? And are they having to have an ECIT

15 officer from one precinct travel to another precinct, so they

16 can get a better handle on what the capacity is, are they

17 meeting demand, and do they need to expand that capacity?

18 Again, as we talked about last year, if the need for capacity

19 would change if they released that criteria to all

20 mental-health-related calls.

21

The other thing that hasn't been talked about too

22 much there is that has been progress on the BHUAC side. They

23 have updated their policies. They got feedback from the

24 Behavior Health Advisory Committee. They took that feedback to

25 heart. They are in the process of implementing training for

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1 all of their RegJIN communicators so that they are better able

2 to identify the calls that should get an ECIT response.

3

So I think there is certainly progress there that we

4 hope to report on in our next compliance report, as we will

5 actually be able to observe that training. But in the interest

6 of time and the fact that this is all available, I will end.

7

THE COURT: Thank you very much, Dr. Watson. I

8 appreciate it.

9

Let me tell you I would like to go next briefly to

10 Mr. Steenson, if you want to talk on behalf of the COAB,

11 Ms. Saadat, Ms. Hardesty then, and Mr. Walsh.

12

MR. WOLFE: (Interpreted by ASL)

13

Your Honor, may I request that we delay the meeting

14 potentially until 6:00. I think Dennis Rosenbaum went on for

15 several minutes, and there are several members of the community

16 that want to speak briefly. I think in all fairness, I think

17 it would be reasonable to ask that we delay it until 6:00.

18

THE COURT: Here is what we are going to do: I am

19 not going to impose an artificial deadline, like 5:30 or 6:00.

20 I will be here as late as we need to to hear from everybody.

21

But, Mr. Walsh, I encourage everyone, including you,

22 to be relatively brief. No one needs to repeat what has

23 already been said. If everyone can speak for a minute or two

24 and make your point, I am very interested in hearing it. I

25 won't impose an artificial deadline. Let's respect everyone's

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1 time.

2

All right. Mr. Steenson, welcome.

3

MR. STEENSON: It is actually good evening now,

4 Your Honor, since it is past five o'clock.

5

THE COURT: But I don't want to say "good morning" to

6 you though.

7

MR. STEENSON: I am one of the eight remaining COAB

8 members. Because we were placed on hiatus, this year we don't

9 have an officially approved COAB report. We had to work this

10 out through a couple of work sessions in the last month and a

11 half. I assure you, though, that the report has been carefully

12 prepared. It has taken into account community input, and it is

13 endorsed by all eight of the remaining COAB members.

14

THE COURT: I will tell you, I have received a

15 report. It is dated October 24th, 2016. It is 22 pages. I

16 have read it in its entirety. And I found it very, very

17 interesting. So thank you for that.

18

MR. STEENSON: Briefly, we want to talk about the

19 expansive nature of the activities we have been engaged in. We

20 want to talk about what has befallen us. We want to talk about

21 the twelve recommendations we have to try to save the COAB.

22

Two of the recommendations involve complete

23 independence from the City and the COCL, except for necessary

24 funding and a provision of resources. The second one is, we

25 believe, given the three years or so that has passed and the

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1 obvious concerns about the adequacy of the settlement

2 agreement, that the Court should conduct another fairness

3 hearing to allow the community to be heard.

4

THE COURT: Let me respond to that. A fairness

5 hearing is to decide whether a particular agreement or change

6 to the agreement is or is not fair. If someone presents me

7 with a proposed amendment to the agreement, I will hold a

8 comprehensive fairness hearing on deciding whether or not to

9 approve it. If nobody presents me with that, but someone does

10 present me with a motion to enforce, I will deal with that.

11 But in the absence of a motion to enforce or a motion to amend

12 the agreement, I don't think I can hold a fairness hearing

13 per se.

14

MR. STEENSON: I know I don't have authority, but I

15 would move to divorce ourselves from the COCL right now. I

16 don't know why the parties couldn't join in that today and get

17 it done.

18

Our duties have been extensive. There are duties

19 requiring us to make recommendations, to advise the police

20 chief, to reach out to the community and listen to them, to

21 work on a community engagement plan, and receive public

22 comments and concerns. The areas in the settlement agreement

23 are expansive. Virtually nothing that the police bureau does

24 or shouldn't be doing isn't covered by the areas in the

25 settlement agreement. Given that, the task that we have had to

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1 try to address those areas has been daunting to say the least.

2

We have four subcommittees and an executive

3 committee. Most of the work is done in what I would consider

4 the "think tanks" of the subcommittee level. Sometimes we also

5 use workgroups comprised of either subcommittee members or

6 members of the community at large. What they do is carefully

7 examine Portland Police Bureau policies, look at information

8 that may be needed and requested from the bureau, look at best

9 practices throughout the country in cities such as Seattle and

10 New Orleans where the Department of Justice has sued and

11 reforms have been implemented. We also look back at the

12 repeated consults that the City has received over the years on

13 police reform and look at what they haven't implemented and

14 taken those also as best practices.

15

Finally, we receive from Portland public input. Then

16 we develop recommendations. We move them on to the COAB, and I

17 can say with very, very few minor exceptions the full COAB over

18 the last year and a half have approved almost all of those

19 recommendations.

20

In total, we've approved 48 recommendations for

21 reform of the Portland Police Bureau. There have been some

22 other recommendations that are related to procedural matters.

23 Many of them are complex with multiple subparts and almost all

24 are based on existing best practices in cities such as Seattle

25 and New Orleans or based upon what the City's consultants have

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1 told them over the years they should be doing, but they failed

2 to do it.

3

Of those recommendations, four address how to respond

4 to mental health crisis situations, six address training, seven

5 address police accountability issues, including the elimination

6 of the 48-hour rule, officer-compelled testimony, and allowing

7 the IPR to investigate all misconduct and getting the Internal

8 Affairs Division out of that business. 17 address use of

9 force, including an important comprehensive de-escalation

10 policy required by the settlement agreement, and in many, many

11 ways serious restrictions on the current level of force that's

12 allowed, either non-deadly force or deadly force.

13

Lastly, we've approved nine bias-free policing

14 recommendations that address the fact that the Bureau

15 continues, after data they've kept for 16 or 17 years, to

16 racially profile. Mayors, chiefs of police, stakeholder groups

17 have all called the City out on it, and nothing has happened.

18 So we've passed nine recommendations to try to address that

19 serious problem.

20

Unfortunately, we have to report that our

21 recommendations seemingly have been ignored. We have heard

22 nothing directly from the DOJ or the City about our

23 recommendations other than to say "we've got them." We have

24 heard indirectly in a couple of minor respects the DOJ has

25 approved either provisionally or otherwise changes in policy

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1 that they say they took into account our recommendations, but

2 it is unclear what they took into account, what they rejected.

3 There is no interactive process. We don't hear anything.

4

Also, it is not acceptable to us to hear from the DOJ

5 or the City that they are busy and that they live with a

6 bureaucracy, and that's the excuse for the justification they

7 offer for this inordinate delay in trying to move police reform

8 through the police bureau.

9

Another problem we've had, we haven't been able to

10 consider some recommendations because, as you've heard, the

11 City has been responsible for allowing our membership lapse to

12 the point where we are almost dead, and they put us in recess

13 over our objection for two months, which has further prevented

14 us on working on some recommendations. Ironically the most

15 important ones that are outstanding and ready for COAB review

16 are 46 recommendations that are comprehensive and detailed

17 regarding police accountability in the City. It is the most

18 comprehensive list of recommendations that have been put

19 together for any stakeholder that I can find.

20

Although I presented it personally at a public

21 meeting to I think four or five of the commissioners and

22 otherwise I believe they are aware of the recommendations that

23 are going to be passed, we've heard nothing from the City about

24 those.

25

One of the primary objections the community had to

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1 the new collective bargaining agreement was it did not address

2 any of the necessary police accountability changes, some of

3 which are restricted by the language of the collective

4 bargaining agreement.

5

What we fear is now that the agreement has been

6 passed -- rushed through -- for the next three-and-a-half

7 years, unless the union wants to agree to reopen the contract,

8 we are stuck with provisions that will prohibit better and more

9 comprehensive accountability because of the collective

10 bargaining agreement. Two of those are the IPR cannot

11 investigate some matters, and the other one is

12 officer-compelled testimony by the IPR

13

We also have run into a brick wall in trying to

14 recommend or get through recommendations with the COCL. When

15 they put out a compliance report, for example, in 2015, we

16 recommended that 14 of their recommendations were too lenient.

17 They were talking about partial compliance, and it should have

18 been much less than that. The response was, "We're right, and

19 you are wrong." I'm not sure that is true. But again, our

20 recommendations went unheeded.

21

We've also spent time working our processes. The

22 processes were not good, and there have been some difficulties.

23

Because a number of people today have spoken about

24 the issue of -- some people call it civil unrest; some people

25 call it civil disobedience. I prefer the words

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1 "civil disobedience." This country has a long history of civil

2 disobedience by people trying to get the attention of the

3 government. It is not always nice. Sometimes it is criminal

4 in nature, but it is an attempt for people to express

5 themselves.

6

This is what I want to say about the COAB meetings.

7 I can't speak to the City Council meetings that may have been

8 disrupted. The second chair we had from the COCL -- I am going

9 to make this my personal observation, because I have not

10 discussed this with all of the existing COAB members -- ran

11 meetings very, very tightly, was on occasion rude, and I think

12 in part also because of the history of the COCL and the fact

13 that the community did not want Rosenbaum and Watson hired, it

14 created a lot of tension.

15

The meetings erupted, so to speak, or there were

16 problems. They all involved meetings chaired by the COCL. I

17 personally facilitated or chaired countless subcommittee

18 meetings with some of the same people there, some of the same

19 people who raised their hands and said, "I was arrested." They

20 may not be easy meetings to get through, but with some respect

21 and some patience you can get through the meetings. Nobody

22 gets arrested, and you go home.

23

We also at various times have been allowed to

24 facilitate full COAB meetings. By that, I mean us, the COAB,

25 and work sessions. Again, those have gone off without a hitch.

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1 No one has been arrested, and we've all gone home. It doesn't

2 answer the problem or answer the question raised about the

3 process to address it.

4

I think respect for people and patience goes a long

5 way. Much of the problems that are being described could have

6 been avoided with a more careful approach how to interact with

7 the community at large.

8

THE COURT: Mr. Steenson, would you please convey to

9 the current and former members of the COAB the recognition and

10 appreciation of the Court for their hard work, their patience,

11 their tolerance.

12

Thank you, Mr. Steenson.

13

MR. STEENSON: I will. Thank you.

14

THE COURT: All right.

15

MR. STEENSON: The City is responsible for actually

16 all 15 of the appointments to the COAB; five, one each from the

17 city commissioners; five from two other public bodies run by

18 the City; five from a selection committee at large. Two-thirds

19 of the 21 appointed have resigned; one was actually removed.

20

I did not know as clearly until I heard it today that

21 apparently the four commissioners, including Mayor Hales, who

22 have not appointed people to fill the vacancies have done so

23 and apparently intend to keep us in that situation.

24

THE COURT: We have heard that before earlier today.

25 May we make time for other people who wish to speak this

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1 evening?

2

MR. STEENSON: I want to make the point that the

3 violation of the settlement --

4

THE COURT: That point has been made.

5

MR. STEENSON: I think under the settlement

6 agreement, the way I read it, just because the parties want to

7 ignore something serious like that, I think with your

8 continuing jurisdiction, sua sponte I believe, you have the

9 authority to step in and try to intervene and save the COAB.

10

We have recommended 12 specific things that should

11 happen to make the COAB work. I want to list those because

12 nobody is talking about anything --

13

THE COURT: What I would rather you do than list,

14 because I want to hear from everyone else, you are certainly

15 welcome to file whatever you wish to file. We will make it

16 part of the public record, and I will read it.

17

By the way, I will also encourage you to re-read

18 paragraph 178 of the settlement agreement, but we will talk

19 about that at another time.

20

MR. STEENSON: And I would encourage Your Honor to

21 read 187.

22

THE COURT: I know. Fairer arguments can be made,

23 but I'm not being called upon to rule on anything now. We will

24 see what I decide to do if I do anything sua sponte.

25

Thank you. Mr. Steenson, may we please make room for

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1 someone else.

2

MR. STEENSON: One more point. I want to say for the

3 record, once again, it feels much like the COAB is being sent

4 to the back of the bus and not being allowed to fully present

5 as others have, including Dr. Rosenbaum, who spoke for 20 or 25

6 minutes. So I would be remiss if I didn't express our

7 disappointment in not being fully heard.

8

THE COURT: Well, I did read the entirety of the

9 22-page submission from the members of the COAB that was sent

10 in yesterday. I did read the entirety of that.

11

MR. STEENSON: One other point. In every other

12 jurisdiction where the DOJ has got in, if I did my homework

13 correctly, there has been a court-appointed monitor.

14

THE COURT: That's correct.

15

MR. STEENSON: Court-appointed monitors have teeth.

16 They have relationships with police bureaus and cities, and

17 they get things done. Substantial reforms get done. They get

18 done relatively quickly, usually with the consent of the

19 parties once the monitor has stepped in.

20

We believe one of the serious problems in the delay

21 in this case in addressing our reforms or reforms that

22 otherwise may be out there and need to be put in place is the

23 lack of the court-appointed monitor. We highly recommend the

24 parties consider doing that.

25

THE COURT: As you know, there was no court-appointed

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1 monitor put in as part of the agreement here that the parties

2 reached. To the extent that the parties reach an agreement now

3 and propose to amend the settlement agreement to make a

4 court-appointed monitor a part of the amended settlement,

5 obviously I will consider that. Maybe even if there is not an

6 agreement, to the extent the Government moves to show that the

7 City is not in compliance, then obviously if I make that

8 finding, and I'm not going to prejudge that, but if I were to

9 make such a finding, I would ask all parties to provide input

10 as to what an appropriate relief should be. If there is a

11 proposal as part of that appropriate relief to have a

12 court-appointed monitor, then I believe it would be within my

13 authority to do that. Again, I'll keep an open mind and would

14 allow all parties to be heard on that issue before making a

15 final decision.

16

Thank you, Mr. Steenson.

17

Ms. Saadat.

18

And I thank you for your past work as chair of the

19 COAB.

20

MS. SAADAT: Thank you very much. Thank you for

21 thanking me and thank you for giving me the time to speak.

22

First of all, I want to say that I took the job after

23 Mayor Hales asked me about it. I took it because I thought it

24 was important. The important part for me was that there would

25 be a voice from the community that would help shape policy with

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1 things like democratic principles to me.

2

I last time I was involved with any kind of

3 police-community relationship was when Kendra James was killed,

4 12 years before that. So this was a serious

5 coming-out-of-retirement decision for me, and I see it as very

6 big, very complicated. My report that I wrote and a number of

7 people have read talks about institutions and structures that

8 are barriers to the efficient operation of the COAB. I wanted

9 to talk first about the COAB.

10

In my report Chapter 1 is "The Dead Horse," so I am

11 going to beat it one more time.

12

THE COURT: By the way, I did read your

13 September 13th letter and also your June 26th memorandum,

14 "The Dead Horse" memorandum, and I thank you for those.

15

MS. SAADAT: We are starting to is discuss the

16 revision of the COAB in the wrong place. We need to discuss

17 the processes that create the COAB in order to get an efficient

18 body. To start back here is to ignore all the things that went

19 on before or didn't go on before, which is more important.

20 That led to a lot of the confusion, anger, frustration, both on

21 the part of the COAB members and the public.

22

I haven't heard anybody talk about that first part,

23 where people were not told what the tasks were in a clear way,

24 where they were not told about their status as public

25 officials, or they were not told about, you know, just training

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1 and in general how to be on the board. Those are essential if

2 you are going to have a really, really good board.

3

A couple of other points I want to address. I firmly

4 believe -- it is my strong opinion -- that revision of the COAB

5 has no place in the City Attorney's Office. It should not be

6 there. The City Attorney defends the City, it defends the

7 police, and it is also responsible for defending the COAB.

8 There is a place for that -- to me -- where it gets pretty

9 messy. If I teased that, I could probably tease that out.

10 Right now, that's not a very good picture.

11

I also think that there needs to be included within

12 whatever revision there is -- not just the parties -- but

13 trainers, human resource people, people who do the dynamic

14 human stuff, because the plan was good. It is a good idea

15 poorly executed. The execution fell down around issues of

16 human dynamics, around how we were going to get people to do

17 what they want to do, which started with not training the

18 people to do what we wanted them to do.

19

My third thing is the role of the unions in all of

20 this has to be addressed some kind of way. When you have an

21 entity that is not accountable to the same people that sets

22 policy, it de facto sets policy, and we don't have anything to

23 say about that -- we, the community. So there has to be some

24 talk about how to resolve that.

25

I think the thing that people heard me scream loudest

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1 the most was: Who is in charge? Who is in charge? Who is

2 ultimately making the decisions? It is hard to find those

3 people a lot of times. There were people who simply

4 disappeared. They weren't there. There were people who didn't

5 know who was in charge. They weren't there.

6

I think until it is clear that the City knows who is

7 in leadership and responsible for the outcome of the settlement

8 agreement and that there is some identifiable point at which we

9 can look and say that's where we need to go, it is still going

10 to be a mess.

11

So I am going to say you can rewrite the settlement

12 agreement all you want to. It is not going to fix the problem.

13 It is not going to fix the COAB problem. And it is not going

14 to fix the accountability problem for who is in charge of

15 overseeing the COAB and the dynamics between the COAB and the

16 people in the city of Portland and the other structures,

17 because there are other structures that need to change also.

18 You can't just change the police bureau and think that that's

19 going to stand alone.

20

I'm going to end by thanking some folks:

21 Mike Marshman, Diana, Joyce Harris, Dante James, Richard Brown,

22 Commissioner Fritz, Joanne Hardesty. There are lots more

23 people, including the COCL staff. But those are people that

24 tried to help me get answers over and over again. Judy and

25 Ellen were part of the people that I talked with almost daily

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1 to help me get some kind of direction as a COAB chair. I agree

2 that there needs to be some restructure with the COAB, but not

3 a whole bunch. Let the COAB elect its chair executive/hire an

4 executive director.

5

Thank you.

6

THE COURT: Thank you very much, Ms. Saadat.

7

Ms. Hardesty.

8

MS. HARDESTY: Thank you, Judge Simon. It is a

9 pleasure to be here today, and I will be very brief.

10

There are a couple of points that I wanted to make

11 sure were on your record. I have been an activist my entire

12 life, but never have I showed up to provide my input at a

13 City Council meeting with the doors of City Hall locked and

14 armed police standing outside.

15

But because I'm someone that doesn't take no for an

16 answer, when they tell me that I can't come in because there is

17 a secret list of six people, and nobody knows how you get on

18 the list, but we know those are the only six people that will

19 be allowed in City Hall that day. But then I hear somebody

20 say, "But if you are escorted by a city employee, you can get

21 in the building." So guess what? I got a city employee to

22 escort me into the building.

23

Then I get to the City Council chambers. Once again,

24 we have armed guards from Homeland Security, Portland Police,

25 TriMet, Gresham Police, all standing there preventing the

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1 public from having entry into their City Council chambers.

2 Imagine my shock when, once again, I'm told there's a list.

3 They can't tell me how to get on the list, but all they can

4 tell me is that if your name is not on the list, you cannot

5 provide your voice.

6

Now, I was inside City Hall the day that community

7 members went out of their mind and started screaming and

8 yelling and cursing, and I sat in that chambers because I came

9 to provide public testimony. So I sit in that chambers, and I

10 waited for the City Council to come back, because they went

11 running from the room. So I sat there, and I wait. And I

12 wait. And I wait. I waited until 1:15, when it occurred to me

13 they weren't coming back, and so I left.

14

Thursday was the day I came back, and City Hall was

15 locked up. Nobody was allowed in except the people on the

16 secret list of six people. And so once I got inside City Hall,

17 once again, there were armed police officers from Homeland

18 Security, Portland Police, TriMet, preventing the public from

19 going inside the chambers.

20

But then I heard a police officer say to the media,

21 "But don't worry; when the doors open, we will let the media

22 in." So I put my KBOO hat on and said, "Hi, I am here

23 representing KBOO," and I went into the City Hall chambers.

24

So inside the City Council chambers it became clear

25 who the six people were who were on the secret list. Then I

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1 found out they were people who didn't get to testify before.

2 So that was where the secret list came from.

3

Because I knew my friend and colleague

4 Dr. Reverend LeRoy Haines was in the air, his name was called.

5 So, of course, I stood up in the City Council chambers and

6 said, "I am here representing the AMA Coalition. I would like

7 to speak on behalf of Dr. Reverend LeRoy Haines," and the mayor

8 gave me the opportunity to do that.

9

I've got to tell you, I've never had such subterfuge

10 to actually be able to get my voice heard by my elected

11 officials. I have been an advocate my entire life. I have

12 never, ever encountered a City Hall where the doors were locked

13 and where Homeland Security had facial recognition cameras

14 taking pictures of all the people who came in to actually

15 provide their input to their elected leaders.

16

I want to tell you I hope I never have that

17 experience again in the city of Portland when I go to let my

18 elected officials know what I think, and they didn't want to

19 hear it, and so they get armed police.

20

Now, it is kind of ironic, because they were trying

21 to convince us that we had this shortage of police officers.

22 If you had been at City Hall, you would have known there was no

23 shortage of police officers, because they were clearly standing

24 around making sure that the public did not get access to their

25 elected leaders.

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1

So I want you to know, Judge Simon, I am thrilled

2 that you are a judge that wants to hear from the public,

3 because you didn't have to let us talk -- the public -- today.

4 I appreciate you. I appreciate the fact that I have this

5 ability to talk to you.

6

I want to let you know that I believe that when you

7 shut the public out of a severe public deliberation that is

8 about policy, it's about community safety, when you shut the

9 public out and you tell them that you don't want to hear them,

10 you, Judge, ruled that you can exclude someone from a public

11 meeting at the meeting that you are being disruptive at.

12 Ironically the mayor called all four disrupters by name when

13 they disrupted the City Council meeting, but yet the entire

14 public was shut out. How is that a democracy? How does that

15 work?

16

So I am here today to say that I appreciate that we

17 at least have a federal judge that is willing to hear from the

18 public. I am absolutely frustrated that I have a City Council

19 that decides because they get an e-mail, that they are going to

20 shut the entire public out of the building. I think that's

21 appalling. I think that somebody has to do something about

22 that.

23

We are looking to find out, legally, what is the

24 community's right when our voices have been shut down, when the

25 City is about to spend millions more dollars on things we

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1 should have input into? Where is our ability to actually have

2 our voices heard when City Hall is locked and armed guards are

3 preventing us from being inside?

4

The last thing I will say is the biggest barrier to

5 the COAB is that most of us volunteer police accountability

6 people, we don't get paid. We spend our own money to drive

7 downtown. We spend our own money to actually pay those parking

8 tickets, because the meetings always run longer than they are

9 supposed to.

10

THE COURT: Like court hearings.

11

MS. HARDESTY: Well, I am in the garage today,

12 because I knew this was going to take a while.

13

So the fact that COAB members have never been given

14 one dime for their participation, but I hear today that we have

15 spent $840,000 on body cams, and we don't even have a policy,

16 right. But the policy that has been given away by the City of

17 Portland is the only two things that the public has an interest

18 in, right.

19

The City has given away the police get to review the

20 video before they provide a written report, and they have a

21 reasonable amount of time. When I asked the mayor and City

22 Council, so is that two days? Two months? Two weeks? Two

23 years? What? It is unwritten.

24

The second thing is if you're under investigation,

25 you get to review any video before you are interviewed. Again,

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1 why would the public agree to spend millions of dollars for

2 body cam footage that they have no access to, only the police

3 get to see, and the police get to write their reports based on

4 what they see on the camera. It's absolutely a waste of public

5 resources. Absolutely we don't want body cams, especially

6 under this condition. We don't want them. We should not be

7 spending the money. We are hiring analysts to actually

8 evaluate body cam footage that we don't even have yet, because

9 we don't have body cams. It is absolutely stupid.

10

Thank you.

11

THE COURT: Thank you, Ms. Hardesty.

12

Let's go to Mr. Walsh. Then my not-so-secret list

13 shows we have Philip Wolfe, a person whose name only appears as

14 "Lightning," if that makes sense. You are welcome to come up

15 after Mr. Wolfe, Robert West, and Ann Brayfield.

16

Mr. Walsh. Welcome, sir.

17

MR. WALSH: Again, Your Honor, I have trouble with my

18 voice. So if I get too loud, just tell me.

19

THE COURT: Mary, would you take Mr. Walsh a cup of

20 water too.

21

THE CLERK: Yes.

22

MR. WALSH: Your inquiring with the city attorney

23 completely changed my presentation to you because two years ago

24 we suggested exactly what you suggested. We needed a group to

25 get together to figure out why does such hostilities between

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1 the City Council and the activists. Now, I draw a difference

2 between "activist" and "advocates." I think activists throw

3 rocks. I am an activist. There are advocates. And you've

4 heard from them today. They advocate for something special --

5 police accountability.

6

Us activists are involved in everything. We just see

7 the injustice, and we go after it. So we are always in trouble

8 with City Council, with the COAB, with Human Rights Commission,

9 with people that are on the opposite side of us, like the

10 police union. We are always in trouble with them, and that's

11 okay, because there is nothing they have that we want. We

12 don't want grants. We don't want special interests. We don't

13 want to be known. What we want is for them to do their job --

14 that's all -- just do your job and convince us that you are

15 trying.

16

THE COURT: Can I make a suggestion there? I think

17 that if you throw "verbal rocks," you are more likely to

18 achieve that result than if you throw real rocks. Obviously I

19 know you don't throw real rocks, but maybe the metaphor needs

20 to be changed to try to accomplish more of the legitimate goal

21 that you are trying to accomplish.

22

MR. WALSH: It was a metaphor. I really believe in

23 what Gandhi talked about, but Gandhi also talked about

24 confrontation. There must be confrontation with the

25 authorities if you need to change something, because they are

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1 not going to do it. It is going to come out from the bottom.

2 They are only going to do it when it is to their advantage, and

3 so the activists have to figure out how to make it to their

4 advantage. And we do that sometimes.

5

I am very complimentary sometimes to the City

6 Council -- not all the time -- but sometimes. I think that

7 there are really good people in this room and very bright. You

8 are all very bright, and your heart is in the right place. Why

9 do we fail? Why do we fail so badly? Why did COAB

10 disintegrate?

11

The reason is we do not have a capacity to look in

12 the mirror and say, "Joe, what's your responsibility on this

13 failure?" Not "You did something wrong. You didn't do it

14 right. You violated some rules."

15

All of us, and I beg you, look in the mirror and say,

16 "Could I have done something more?" Could I have been easier?

17 You are right. Could I have thrown verbal instead of real

18 rocks that hurt people's feelings?

19

THE COURT: Or that frighten them.

20

MR. WALSH: Or that frighten them, you are right. I

21 have people who said to me, "You frighten me." I say, "Wait.

22 I am 74. I'm on oxygen. I walk with a cane. How can I

23 frighten you?" They say, "Your words are so angry sometimes."

24

I spend a lot of my time crying, because we are in a

25 mess, and it is down here. It is right here. We are one

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1 incident away from Ferguson -- one incident. If we have one

2 major killing of an innocent person, this city will explode.

3 That's what makes me cry. That's what makes me so angry,

4 Commissioner Fritz.

5

When you see me angry, that's what makes me angry.

6 We have good people here. I don't want us to point fingers

7 anymore. I want you to go home, Judge, and say, "Can I do

8 more? Can I go out on a limb?" I want Joe Walsh to go home

9 and say, "You promised you would be easier at 74. Will you

10 please do it. You are running out of time."

11

Thank you.

12

THE COURT: Thank you, Mr. Walsh. It was a pleasure

13 to hear from you, sir.

14

Mr. Philip Wolfe.

15

MR. WOLFE: (Interpreted through ASL)

16

Hello, Your Honor. My name is Philip Wolfe. Thank

17 you for allowing me a moment to speak.

18

I am the chair of the executive committee. I have

19 been the chair for about six months. I was appointed after

20 someone resigned. It has really been a great experience. It

21 has been challenging. There has been a diversity of energy, so

22 I am in the middle of trying to figure out what the exact

23 issues are.

24

I've re-read and re-read the settlement agreement,

25 and I'm seeing that the problem is that COAB and COCL are

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1 united. I think that we need to be truly independent from each

2 other to accomplish our work without interruption from COCL.

3

Looking back, COCL has caused the disruption. They

4 are not experts at community engagement. They have failed at

5 community, and that is a proven fact. I, as the executive

6 committee chair, have tried to engage with them, educate with

7 them, set up meetings, create less of an "us versus them"

8 feeling, and to no avail.

9

We've finally figured out how to run meetings, but

10 without their involvement. At the same time the City, the

11 chief of police, the mayor, the city commissioners, they have a

12 dark history. There has been media. There has been articles

13 documenting this.

14

Where is the transparency? That is what is key --

15 transparency is important -- and trust. And right now, there

16 is none. For COAB to be successful, that trust must be

17 present, and trust needs to happen by disassociation from COCL

18 and COAB.

19

Any couple who asks for a divorce, either party who

20 requests that, is granted. They haven't asked us for a

21 divorce. They went straight to the Department of Justice. We

22 were not informed of that. We are here, and we were not

23 informed.

24

I'm hoping to make a request. I did file a complaint

25 with the Department of Justice. I found many issues where the

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1 City is not in compliance. You have already heard this from

2 other people. They have already accounted how they are not

3 within compliance. I filed that report two weeks ago. I've

4 heard nothing. I've sent follow-up e-mails.

5

The Department of Justice, they have the authority.

6 I'm hoping they will read my complaint, forward it to you, if

7 you have that authority, but nothing has happened. I have

8 tried everything I can.

9

The settlement agreement needs to be modified. We

10 have made recommendations for that to the DOJ and the City. We

11 have been trying to get all four parties involved in that

12 agreement, but nothing has happened.

13

In order for COAB to survive, we need redirection.

14 We need to be disassociated from COCL, and that's what needs to

15 happen in order for to us continue. Communities all over the

16 U.S. are depending on us. For other cities, we need to become

17 a model. It is a challenge because in bigger cities they have

18 a lot of issues, but here in Portland we are unique. For us to

19 have the chance for a police reform to happen, we can truly

20 have an impact on the rest of the nation. So please, I hope

21 you honor my request.

22

Thank you

23

THE COURT: Thank you very much, Mr. Wolfe. I

24 appreciate those comments. Thank you.

25

Lightning.

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1

I would ask Lightning to be brief, but I don't think

2 I need to. I think it happens by definition. I am being

3 facetious. Take your time.

4

LIGHTNING: Now, Judge, I might say a few things that

5 you may not like to hear from me.

6

THE COURT: As long as it is brief, I will listen to

7 anything.

8

LIGHTNING: It will be brief, sir.

9

The gentleman that got removed by the U.S. Marshal, I

10 think that was completely inappropriate. I think he did have a

11 right to sign up for public communication. When the individual

12 went up to him and asked what he was doing, he responded, "You

13 don't have any right to tell me or ask me what I'm doing at

14 this point." I don't think he should have been dropped to the

15 ground and removed. That's just my statement to you, sir.

16

THE COURT: I appreciate that. I will tell you, I

17 was not in the courtroom at the time. I did not observe that.

18 One of the things I've learned in this job is not to draw

19 conclusions until I hear all of the evidence. But I understand

20 what you are saying, but I'm not drawing any conclusions.

21

LIGHTNING: Thank you, sir.

22

My next issue is that I want you to know that I truly

23 enjoyed The Odd Couple show, and it is something to always be

24 remembered. I watched that when I was a young kid, so I want

25 you to know that. I think you know what I'm saying right now.

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1

Now moving to public communication issues. One of

2 the things that I want to have very clear for the Mayor and the

3 commissioners is, do you think public communication is

4 necessary? I would like to have an understanding and your

5 opinions on that. Do you think it is necessary? Do you think

6 it is necessary for the public to have the right to talk about

7 the issues? Do you think it is necessary to have the public

8 have additional time, if needed, to talk about the issues? Do

9 you think it is important for the public to have communication

10 for you to be able to do your job, because a lot of the public

11 right now doesn't think you believe that.

12

A lot of the public thinks that you want to make

13 these decisions. You want to push these contracts through.

14 And you really don't care what the public has to say. We are

15 seeing a lot of resistance from the public. We saw what

16 happened at City Hall.

17

There has to be that element of reasonableness, due

18 to the public communication, the points they want to stress to

19 you and understand that public communication is a necessity in

20 a limited public forum, and it is First Amendment rights of the

21 public to speak to you in a reasonable manner, give their

22 opinions, and also be respected at the same time.

23

If you don't have respect for the public, please step

24 down from your jobs. We will get people in there that do and

25 understand that as part of the process it is necessary.

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1

I went to an EPA meeting where they had public

2 communication all day long, every other day, to the point I

3 walked out of there, and I said, "I love this, because I like

4 public communication," and I respected them for the way they

5 did their jobs. They even told me to go over to their office

6 if I wanted to talk to them and would be glad to talk and

7 communicate, and they did. And I have a lot of respect for the

8 way they did their job.

9

Thank you.

10

THE COURT: Lightning, let me tell you, I think part

11 of the genius of the original Odd Couple -- don't get me

12 started on the current stuff. Part of the genius of the

13 original Odd Couple is that it shows that people with very

14 different perspectives, attitudes, values, and habits can live

15 together, learn to respect each other, and see what's good

16 about each other, even though they come at it from different

17 perspectives, and that's a very good lesson for our community.

18

LIGHTNING: Laughter is so very important, and I do

19 agree.

20

THE COURT: Thank you.

21

Mr. Robert West.

22

MR. WEST: How are you doing today, Your Honor? My

23 name is Robert West. I am from Police 911. I videotape the

24 police. I have been videotaping City Hall and stuff like that.

25

Let me go through my experiences. When I first went

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1 to COAB, I would get on a subject, and if there is something

2 that the leader, Ms. Saadat, didn't like, I was interrupted.

3 She would explain something, and it would go to the next

4 person. She had like three minutes per person.

5

To me, I felt disrespected that way. I felt

6 belittled and stuff like that. There was a big outcry about

7 what she was doing.

8

Okay. Later on, one of the individuals called a guy

9 that films the police -- not me but another guy -- "a Nazi that

10 goes after blacks," and the guy is Jewish, which is a major

11 problem, you know, you don't -- it is really bad when you

12 disrespect people like that.

13

I have observed -- I have had several confrontations

14 with police because they will say, "We want you to be beyond

15 that pole," which is over a hundred yards away, or "we want you

16 past this sign," which is a block away, or "we want you across

17 the street on 122nd," or some like that, right.

18

I have had issues with police as far as -- "Well, we

19 need you to go across the street right now. Well, I'm in the

20 middle of the block. Can I go around the corner? No, you go

21 across the street." Then they want to come over and have a

22 confrontation with me because I jaywalked, you know.

23

They've had -- there is just continuous stuff like

24 that. It has gotten to the point where there has been

25 disrespect. They have had their license plates videotaped, and

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1 they are all upset about that.

2

But not to go off the subject, I went to City Hall

3 several times, right. The mayor tries to control everything.

4 I think he is too forceful in his controlling. If you use the

5 "F" word, he warns you that you can't use the "F" word. If you

6 use it again, he excludes you, which has caused a lot of

7 problems. People say, "Well, I'm not going to go because I use

8 the 'F' word. It is freedom of speech."

9

And so people wind up getting arrested and stuff like

10 that. I was arrested at City Hall just sitting there

11 videotaping. I couldn't believe it. I was sitting there

12 videotaping. They closed the chambers. Joe Walsh just got

13 injured by G4S. I was standing there to make sure he wasn't

14 injured or reinjured and stuff like that.

15

When I stepped down, I asked Mike Cohen, which is

16 security for G4S, "Am I being trespassed?" He goes, "No, you

17 are not trespassing. We just don't want you in there." When I

18 stepped out, they arrested me for interrupting the City Council

19 meeting, and all I did was film, and trespass, which Mike Cohen

20 told me I was not trespassing. So that's kind of the stuff

21 we're facing.

22

There is the incident where they gave us little

23 tickets to testify on different subjects and stuff like that.

24 Well, if you are an activist, your name was never called.

25 People got upset. They put tents up in there, but people were

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1 still hostile. They were decent to the police. They were

2 decent to everybody else. If someone from the City wanted to

3 leave, they let them leave. There was an incident at the

4 elevator where I got shoved in the back and got a criminal

5 charge for that.

6

So then what happened was they weren't happy, and so

7 they brought in their little riot squads and proceeded in

8 shoving people and literally picked one dude up and slammed him

9 into a pillar at City Hall. I was appalled at that. That was

10 the first act of violence by anyone there, was when an activist

11 was picked up and slammed into the pillar.

12

The second act of violence was when he turn around

13 and swung at one of them. Excuse me. If somebody picked me up

14 and threw me into a pillar, I think I would swing too. You

15 have a right to defend yourself in this country, although the

16 Portland Police don't agree with that.

17

Then it escalated. As they were having people leave,

18 they were literally pushing people. When they got near the

19 doors, you are trying to squeeze 100 people out of a door where

20 there are two small doors. Then you've got stairs. We had the

21 elderly, we had disabled, and stuff like that.

22

THE COURT: Mr. West, there are a few more people on

23 the list. I would like to make sure to get to them this

24 evening. If I could ask you to wrap up.

25

MR. WEST: That's what I'm doing, Your Honor.

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1

THE COURT: Thank you.

2

MR. WEST: So when they got outside, right, the riot

3 squad showed up. They decided that it was necessary to pepper

4 spray four ladies that were sitting down there asking what was

5 happening. The Portland Police have been out of control for a

6 while. They have basically been waging war, arresting

7 Cop Watchers for little minor stuff that they don't arrest

8 anyone else for.

9

If there is a march, and I'm standing there filming

10 it, they don't arrest the marchers. They arrest Cop Watchers.

11 That day they arrested six Cop Watchers, and that's what I

12 wanted to bring up.

13

THE COURT: Thank you, Mr. West. I appreciate you

14 being here.

15

Let me hear from Ann Brayfield, David Davis,

16 Mary Eng, and I believe Laurel Vanderlyn.

17

So Ms. Ann Brayfield.

18

MS. BRAYFIELD: Thank you, Your Honor. I appreciate

19 the opportunity to speak this afternoon. One of my hopes out

20 of this that's happened here today is that others around the

21 room in whatever position they happen to be in will see the

22 value of public speaking.

23

You've shown right now, right here today, that it is

24 a good thing. You have shown it is not something to be afraid

25 of. It is something you have been willing to interact with --

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1 the community -- following everyone else. And I would hope,

2 whether it is the chief, whether it is commissioners, the DOJ,

3 the union, the city attorneys, whomever, I would hope that you

4 could listen to the public and find a way to do that.

5

Personally I often send e-mails. What I find -- I

6 have a question; I have a thought. I don't go on. I don't get

7 a response. It is very, very rare. I think that if people can

8 interact with each other, we will have less of the kind of

9 thing that is happening where people take the streets, people

10 perhaps are disruptive. I think that respect and listening to

11 one another is one of the ways that we're going to move forward

12 here. I would just ask that we all step back and take a moment

13 to do that when someone reaches out, or to reach out yourself.

14

Thank you.

15

THE COURT: Thank you, Ms. Brayfield. I appreciate

16 those comments.

17

David Davis, followed by Mary Eng.

18

MR. DAVIS: My name is David Davis. I am with

19 Multnomah County Cop Which, is a separate entity than Portland

20 Cop Watch. Thank you for this opportunity for public comment,

21 because I know you didn't need to allow the public to speak.

22 You have respect for the First Amendment and the public, where

23 a lot of the people, like Mayor Hales/police commissioner and

24 Mike Marshman --

25

THE COURT: Let's keep it more to the policy issues,

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1 if we may.

2

MR. DAVIS: I pretty much view policing these days as

3 "death by a thousand cuts" policing basically, you know.

4 Anyone familiar with that concept -- I'm sure there are a lot

5 of people in this room. But there are serious problems when

6 the police can't even sign their union contract without

7 launching a DOJ report on itself by its treatment of mentally

8 ill, handicap people, women, and children.

9

I even saw the police mace G4S guys. Speaking for

10 G4S, G4S Security is frequently as an extra-legal mechanism to

11 prosecute and intimidate people, especially Cop Watchers.

12

Then you have Ellen Osoinach over here. She accused

13 me of up-skirting her at a COAB meeting in front of

14 Mike Marshman who was then just the COAB liaison. He wasn't

15 the chief of police. That was before the O'Dea shooting

16 unraveled.

17

They are saying that people who disrupt a meeting,

18 you know, the real disruption is coming from the mayor himself

19 who can't handle any dissenting voices at City Hall. There is

20 this Orwellian language change, like Judith Prosper, who used

21 to work for former Haitian Dictator Aristide.

22

They are trying to frame freedom of speech and the

23 First Amendment as being disruptive civil unrest. Give me a

24 break. You don't know what civil unrest is. Civil unrest is

25 what happens when our voices are frequently trampled on,

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1 stomped on, and beaten out of us by a bunch of fascist goons

2 that think they represent the community.

3

You know, the use of force at City Hall, you know,

4 that was ridiculous. I saw people with prosthetic legs being

5 pushed down the stairs. People that had brain surgery three

6 weeks previous to that weren't allowed to exit out the front

7 door. They had to go out and be herded out and pushed down the

8 stairs. Sarah Hobbs, who comes to City Hall, which Amanda

9 Fritz and Charlie Hales know about her brain injury.

10

All this stuff -- I view COCL actually as a weapon

11 against the mentally ill. It has been used as a weapon against

12 the mentally ill. I have PTSD. I was invited to a COAB

13 meeting by Vianni Rivera over there to do a presentation about

14 the treatment of mentally ill and homeless people and my

15 experiences of people at Cop Watcher.

16

You know what? I am one of the people that has been

17 arrested at City Hall and at these COAB meetings. The reality

18 of the situation is, I have been arrested four times since

19 June. All four cases are dropped. So your narrative totally

20 fails in a court of law. Half the time these charges were

21 dropped even before I made it home.

22

So these toxic advocates of the City who portray

23 themselves as lawyers that serve the best interests of the

24 community, they are far from it. They think sprinkling a

25 little mace and trampling on the First Amendment rights of

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1 citizens and all that is a great thing.

2

One of the main reasons for COAB and COCL unraveling

3 is because I was called a white supremacist. I am a Jewish

4 person. My family fled Kiev. We fled for a reason -- to

5 escape this same type situation that's going on and --

6

THE COURT: Mr. Davis, were you called a white

7 supremacist by a member of COAB or COCL?

8

MR. DAVIS: Yes, by Bud Fueless. Kathleen Saadat is

9 a very good friend with him. She drove him in her car and

10 dropped him off at his front doorstep. She also lied and said

11 she was intimidated by some people that were filming her.

12 Judith Mallory, a city employee, even sent out an e-mail

13 talking about how Kathleen Saadat felt intimidated.

14

Well, you can go look at the video. It is on

15 Mike BlueHair from the Film Portland Police Channel. You can

16 see just how intimidated she was when she is chuckling about me

17 getting arrested and Bud Fueless is talking about, "Yeah, I

18 called him a skinhead; ha, ha, ha, ha, ha."

19

So that's one of the main reasons this whole thing

20 unwrapped, because when you have this thing that's just based

21 on public perception, and then members of the public actually

22 come in and engage and ruin your narrative because it is

23 totally false, fabricated.

24

I think you should go back to Haiti and go join the

25 dictatorship again or some other dictator because your

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1 dictatorship in Hales administration isn't working out.

2

Building a plane wall. We are flying it. It doesn't

3 ever work out and it will always lead to plane crashes and

4 fatalities.

5

THE COURT: Mr. Davis. Thank you, sir. I appreciate

6 that.

7

MR. DAVIS: That's all I have got to got to say. I

8 could go on for ten minutes, but I am going to allow others to

9 speak.

10

THE COURT: Thank you. I appreciate it, sir.

11

All right. Mary Eng, Laura Vanderlyn, Linda Senn,

12 followed by Dan Handleman, Trudy Cooper, and Mike Schumann, and

13 that's the end of my list.

14

MS. ENG: Can you hear me all right?

15

THE COURT: Yes, I can.

16

MS. ENG: My birth name is Mary Rose Lenore Eng. I

17 have been going as "Mr. Eng," because I've really had to

18 "man up" for this whole situation. So is a little joke between

19 me and Charlie Hibbs.

20

I would like to apologize to you for those comments.

21 I found them disgraceful, insulting, and I also don't

22 understand the context from which they arise. They don't know

23 much about the history of that country. So I just want to

24 apologize from my personal point of view.

25

I also wanted to bring up -- I wanted to give you

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1 this book. So don't let me get out of here -- it is not a

2 bribe at this point, unlike the COAB house deal with the PDC.

3

THE COURT: I will consider it as a submission to the

4 Court much like any other court filing.

5

MS. ENG: Read page 47. There is a wonderful poem.

6 It is from my father, which I spare -- it is called

7 Golden Eagle. It is about what it was like to be 23 when

8 Kennedy was killed.

9

So there is a new loophole the Walsh/Eng decision.

10 Have you heard of it?

11

THE COURT: No, but please be brief. We have a lot

12 more people to hear from.

13

MS. ENG: Great. Great. It is called "the corkscrew

14 exemption." What you do is you take a perfectly innocent

15 lovely Catholic school girl like me and then you say: Gee, we

16 really don't like her. She is always so polite. She uses

17 proper manners. We just really want to get rid of her. She

18 hasn't quite committed a crime. Why don't we have her arrested

19 and brutalized on false charges of a weapon planted on my bag.

20

It turns out that G4S does want metal detectors. And

21 I am on the bandwagon, if we need more security at City Hall

22 that is reputable, fair, and honest. The dirty dealings with

23 "the corkscrew exemption" -- Charlie Hales got -- one week

24 after asked to resigned on the O'Dea shooting, in a very

25 cordial and polite manner, regarding the squirrel shooting

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1 episode. I did so in his job. I felt more comfortable

2 speaking to him that way. But he had me arrested and

3 brutalized and bruised. Constantin Severe has all the

4 pictures.

5

But what's so interesting is for the three years I

6 worked on the Benjamin Pickering case, he is now dispositioned

7 in the Oregon State Hospital after an unfortunate June 2nd,

8 where I nearly lost my life as my head was being crushed, as he

9 accused me of being a secret agent.

10

So I got into a choke hold with that, and he is not

11 fit to stand trial for anything. It was never my goal that

12 someone who was a Portland Police brutality victim in 2013

13 would be failed by Providence, failed by Cascadia, failed by

14 the City of Portland, by everyone in four counties.

15

THE COURT: Thank you, Ms. Eng.

16

Ms. Eng, you are welcome to deliver the book to my

17 courtroom deputy. I will take a look at it. Thank you for

18 being here.

19

MS. ENG: I met your lovely wife down in Astoria.

20

THE COURT: I do not discuss her in this building.

21 It is separation of powers, but thank you.

22

All right. Laurel Vanderlyn.

23

MS. VANDERLYN: Thank you very much for allowing the

24 public to speak today.

25

I am Laura Vanderlyn. I am an artist. I am a mother

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1 of five. I was one of the persons that was arrested also. I

2 was arrested on June 9th for speaking robustly. Maybe the

3 attorneys are really not understanding what the word "robust"

4 means, it is true that in fact I was speaking "robustly." We

5 do speak robustly in meetings when we are feeling it

6 necessary -- when we find it necessary to speak up.

7

I went to a meeting on June 9th, and I found that the

8 procedure and the protocols were so offensive that we had to

9 get up and speak up. And we were given instructions that we,

10 as a public body, could speak robustly. That's exactly what we

11 did. And for that, I was arrested. As I was leaving the

12 building, I was arrested. Four or five or six police officers

13 who was running after me.

14

I have never been arrested in my life. I left the

15 building. They came from behind me, and they escorted me out.

16 They took me out from the left side of the door. I didn't

17 choose to walk out that door. They escorted me out. I tried

18 to give my belongings to a friend, and they refused. They

19 refused.

20

I did not leave the jail. They had my phone. They

21 had my keys. They had everything. I did not leave the jail

22 until after midnight -- after midnight. I have never been

23 arrested. I felt like I was a domestic abuse -- I have a good

24 husband. I have never been abused, but I understand that

25 feeling of having like a domestic abuse violence happening to

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1 you. I had no choice.

2

THE COURT: Thank you, Ms. Vanderlyn.

3

MS. VANDERLYN: I just want to say that we are not an

4 audience. We are civically engaged citizens that may have had

5 an experience with police or a system, and then we are there to

6 engage. We have a mind. We are not an audience. I've heard

7 this over and over: The audience -- dot, dot, dot. We are

8 civically engaged citizens. We care.

9

THE COURT: The whole purpose, including the COAB, is

10 to get the community's advice and the community's input. It is

11 a critically important part of this process.

12

MS. VANDERLYN: I tried. I suggested that they do a

13 settlement agreement in audio form. They have ignored me over

14 and over. They have this way of talking to you where they

15 spinning and spinning and spinning. You're just talking in

16 circles.

17

You ask a question and no question can be answered

18 because we get this like talking and talking and talking in

19 circles. We then go to these meetings and we speak robustly.

20 I was also arrested on October -- on the 5th, when we did --

21 there was like a demonstration. I was leaving. I wasn't even

22 part of the demonstration. My name wasn't called down to be

23 excluded. As I was leaving the building, again, I was

24 arrested.

25

My phone was taken away that day for video evidence.

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1 No charges are against me on either one of those arrests. My

2 phone is still -- the City of Portland still has my phone.

3 Refusing to give it to back to me, and I don't know why.

4

THE COURT: Thank you, Ms. Vanderlyn. May I move on

5 to any other people or do you have any final comments?

6

MS. VANDERLYN: I just want to make one more comment.

7 Childcare has been provided. It is a very elitist way. They

8 make the procedure and protocol so difficult. What they do,

9 the City says that you have ten days -- call us ten days ahead

10 of time. Nobody needs a babysitter when you can plan ten days

11 ahead of time. You need a childcare provider -- people are

12 coming to the meeting that are broken and hurt and poor and

13 impoverished.

14

THE COURT: Have you tried Court Care at Multnomah

15 County Courthouse?

16

MS. VANDERLYN: COAB has childcare provided, but they

17 don't provide it unless you call ten days ahead. I think the

18 whole system is so flawed. It is just like it is a joke. They

19 have never provided childcare the entire two years, but yet

20 they have childcare available. That's all I wanted to say.

21

THE COURT: I understand.

22

All right. Thank you, Ms. Vanderlyn.

23

I am going to Linda Senn, Dan Handleman,

24 Trudy Cooper, and then close with Mike Schumann.

25

But then I am going to Mr. Geissler and ask you if

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1 you've had any further discussions regarding any items and what

2 we should do on our agenda/calendar.

3

MS. OSOINACH: Your Honor, there was a name left off

4 the list, Commissioner Fritz, who was the last person to sign

5 up on the list.

6

THE COURT: I didn't see that. Of course. Then we

7 will end with Commissioner Fritz.

8

All right.

9

Linda Senn.

10

MS. SENN: My name is Linda Senn. I am extremely

11 nervous right now. My heart is beating really fast.

12

First and foremost, thank you, Your Honor, for having

13 us speak out today. I am a member of the subcommittee for the

14 COAB. I get it mixed up with the abbreviations. I also

15 applied for the chair position, because I feel like police

16 accountability, above and beyond, needs be ratified. It needs

17 to be re-purposed. That's a word I used in one of our

18 meetings. Retooling.

19

I don't think that police should be abolished. I

20 think we are all humans. We all err. And forgiveness is

21 necessary.

22

Like I forgive Officer Nicholas -- I will use his

23 first initial of the last name, which is B -- for the

24 incredible injustice that he did to me by macing me right in my

25 eye. I don't know if you were able to see that on media

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1 coverage across the our nation. That was me pouring milk into

2 my eye.

3

I was brought to the COAB and the COCL through

4 Cop Watch because I reached out through another friend because

5 my son was brutalized by Gladstone Police Department -- yet to

6 receive their abuse report, the report they are supposed to do

7 when they beat up somebody.

8

He was 15 -- he was 14 then. He is 15 now. What

9 they have done to my son and other people's sons and daughters

10 and mothers, there is no excuse for that treatment of life.

11

We were brought into this world by our parents.

12 Discipline by our parents is what we expect as we grow up.

13 Harsh discipline by community representatives that are there to

14 protect us is not something that we grow up expecting. We grow

15 up understanding that there is a line to toe. We grow up

16 understanding that there is a line not to cross.

17

But we don't grow up with an understanding that if

18 you do that, that you may lose your life. This loss of life is

19 a tragedy beyond all tragedies, especially when it can be

20 stopped by the adult behind the weapon. When it is loss of

21 life due to inconsideration of your position, it's disgusting.

22 It is a tragedy that no one -- none of us should have to

23 reflect on when we take that time out to look in the mirror and

24 go, "What did I do to help?" I joined the committee. I tried

25 to get the job as the chair.

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1

I'm still reaching out through other agencies. I

2 have just become a board member of a distinguished board. I am

3 expecting to be a board member at Sisters of the Road Cafe

4 where I have extended several times to everyone here to come

5 and have a cup of joe, talk to some of us. Sometimes it is

6 just that we are tired; we are not mentally ill. But you need

7 to know the difference. Training our officers in that is

8 imperative.

9

Thank you for your time.

10

THE COURT: Thank you, Ms. Senn.

11

Mr. Dan Handleman.

12

MR. HANDLEMAN: Good evening, Judge Simon. Thank you

13 very much for letting the community speak too. I am a member

14 of the steering committee of the AMA Coalition. I am speaking

15 on behalf of Portland Cop Watch. In any case, our counsel is

16 here, so they are informed of my contact with you.

17

I wanted to ask before we run out of time if it is

18 okay -- I heard you took ex parte contact from other people,

19 including Ms. Hardesty, into the court record. Is it okay if

20 we send our analyses to you as well?

21

THE COURT: Absolutely.

22

MR. HANDLEMAN: All right. We will do that in the

23 future. In fact, I would like to offer our analysis to the

24 COCL report before I leave tonight.

25

THE COURT: Give it to my courtroom deputy, and we

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1 will enter it into the public record probably tomorrow.

2

MR. HANDLEMAN: Thank you.

3

One of the things we've observed is that the more

4 secret a committee is, the more the Bureau and the City listens

5 to them. The Behavioral Health Unit Advisory Committee does

6 not have open, public meetings, but the reports from the DOJ

7 and the COCL reveal that their recommendations have been

8 adopted by the Bureau. They have gotten feedback on all of

9 their recommendations and that they are allowed to participate

10 in training. That is not true for the COAB or for any

11 community committees.

12

The Training Advisory Council has open meetings.

13 They only recently opened it up to open comment because the DOJ

14 thankfully asked them to do that. They have put in their

15 recommendations, and we have heard now that they have gotten

16 feedback on their recommendations. COAB still hasn't.

17

The focus group that they put together to talk about

18 the accountability system met behind closed doors, and the

19 people who were on it understood, even if it wasn't accurate,

20 but they understood that they weren't to communicate with their

21 organizations about what was going on. So a member of the CRC

22 and a member of the steering committee of the AMA were on that

23 group, but we had no idea what was going on. Then when the

24 City came out with a proposal that was terrible, they were

25 surprised that people didn't like it. But that's because there

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1 was no public input.

2

THE COURT: Mr. Handleman, if I can interrupt for a

3 moment. At the risk of making you go a little bit longer, let

4 me ask you speak a little more slowly. I have been working our

5 court reporter hard all afternoon, so a little bit slower.

6

MR. HANDLEMAN: I have been told that many times,

7 believe me.

8

ALS INTERPRETER: The interpreters as well.

9

MR. HANDLEMAN: Sorry about that.

10

The Police Review Board meets behind closed doors.

11 They make recommendations to the chief, and they get responses

12 about their recommendations. The Citizen Review Committee

13 makes recommendations. They have public meetings. They hardly

14 hear back. They make recommendations on crowd control, in

15 fact, but they never heard back from the chief or the City

16 about those.

17

COAB, of course, we have talked. The Committee

18 Police Relations Committee not only didn't get as much feedback

19 on the recommendations as they could, but they have fallen

20 apart due to lack of support, which happened to a lot of

21 groups.

22

One of the comments that was made was that there was

23 no excessive force found in the last year, but there was an

24 incident in one of the reports about an a bicyclist who was hit

25 by a police car. They refused to investigate it because they

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1 said it wasn't deadly force.

2

The Graham standard, as I understand it, says you

3 can't use 20/20 hindsight as the perspective of the officer at

4 the time of the incident. So allowing them to review footage

5 to write their reports and interviews completely throws that

6 out the window, because then they will know it becomes their

7 20/20 hindsight because they can look at video. So that has

8 got to be avoided.

9

You've heard already the contract doesn't have the

10 body cameras in it, but the agreement that they signed gave

11 away the story. It says, "Mandatory bargaining," even though

12 the lawyers put together a memo saying, "We argue that it is

13 permissive," so they gave away the story on that one. There is

14 nothing we can do about that when we make our recommendation

15 about the body camera policies.

16

Somebody used the term "suicide by cop" here today.

17 That's not a good term. Our group that reviews shootings for

18 the City of Portland discussed how it is a homicide. And when

19 we use that term, it takes the responsibility off the police

20 for taking away life.

21

On that note, the last person who was killed by the

22 Portland Police last year in November was a mental health

23 crisis outside a hospital, and the officers who shot him

24 received awards for it. 15 years ago when Jose Mejia was shot

25 and they gave awards, the City realized that was not a good

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1 idea because the community became outraged. But now that

2 policy has gotten back into place.

3

We have made numerous recommendations about how to

4 fix the accountability system, and we never get listened to.

5 Hopefully there is a stakeholder group where there is some

6 limited discussion about it, but again, because the focus group

7 that talked about it was done in secret, we want to open up the

8 whole process again from beginning. Our proposal is to take

9 the Citizens Review Committee that meets in public, the Police

10 Review Board that meets in private and try to merge them so it

11 is all in public. The original proposal from the City was to

12 merge them all and put them in private. That was not

13 acceptable to anybody.

14

Incidentally, the testimony that you heard that the

15 new recommendation is to limit public input at appeals

16 hearings, it is actually to eliminate public input at appeals

17 hearings. Other people call that "the Cop Watch clause,"

18 because they don't like hearing us talk.

19

I know you have been listening. I also know that

20 Dr. Rosenbaum is supposed to be holding a town hall meeting at

21 six o'clock. I know he is not starting it because I know he is

22 behind me right now. I would like to get to that myself

23 because I have some comments on that.

24

THE COURT: Hand those comments to my courtroom

25 deputy.

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1

MR. HANDLEMAN: Yeah. We will type up some more

2 comments.

3

The video that was shown, nobody is going to dispute

4 that those were moving stories. You heard moving stories here

5 from people who were at City Hall. I left City Hall early that

6 day because City Council had shut us out, voted on a contract

7 without taking public input. I watched the video of the people

8 being pushed down the stairs. That's even more emotional for

9 me to watch. But we weren't allowed to bring that in the

10 courtroom. We didn't know they were preparing something like

11 that. I would have brought that video.

12

I think that's the way the City plays it: Look at

13 these great things. But they never admit things aren't going

14 well. That's what we need to hear. I think the way to fix all

15 the problems we have talked about today is to engage in active

16 listening. Even if they disagree with it, they can say thanks

17 for that idea you had about whatever it is to show that they

18 heard what you said. That's a good step forward to do some

19 active listening, City. I am really encouraging that.

20

I just want to let you know also there are seven

21 members of the Portland Cop Watch here today to observe these

22 hearings. A lot of people think I do this work alone. I

23 don't. I appreciate my group and all the support they have

24 given to make these analyses possible and our work possible. I

25 will send in more stuff in writing because I know you want to

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1 get on.

2

THE COURT: Thank you very much, Mr. Handleman. I

3 look forward reading to whatever you submit.

4

All right. We will have Trudy Cooper, Mike Schumann,

5 and then Commissioner Fritz.

6

MS. COOPER: Thank you, Judge Simon, for the

7 opportunity to speak.

8

I would like to speak to two things that you raised

9 that I thought were challenges to all of us -- one of them

10 being the 30, 60, 90, whatever -- it is being called the status

11 conference. Then the second being how to have a dialogue about

12 how to have a dialogue. I think those two are very related

13 because I think they have the same source, the resistance to

14 them has the same source.

15

The way I was hearing what you were proposing was

16 like a pause and assess, an opportunity to say where the

17 progress was at this point, to take stock of where you are.

18 The way I think it is heard instead is an opportunity to pause

19 and be judged or pause and be condemned or pause and be graded.

20

I think that the City sees itself in a adversarial

21 role in relation to the community and also in relation to your

22 role, and I will always recall in the Council meeting when the

23 Council was considering making a decision -- was making a

24 decision that they wanted to challenge your role and to have it

25 be this role that we have here today. The "pre-hammer role" is

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1 what we have anyway. But one of the commissioners said, "It is

2 as if we're on probation." It's as if we are all on probation.

3 We all, as Joe Walsh said, have had a contribution to the

4 adversarial atmosphere that exists. We can all reflect and

5 have that dialogue about how to have a dialogue.

6

THE COURT: Let me respond to that briefly, because

7 on this probation point, remember how we all started here

8 two-something years ago. The United States Department of

9 Justice filed a lawsuit. It was against the City. The City

10 had every right to defend itself and to go to trial. Instead,

11 they chose not to, and they chose to enter into a settlement

12 agreement. That is not at all uncommon. But it is their

13 decision.

14

They entered into a settlement agreement, and now

15 we're talking about implementing the settlement agreement.

16 Part of that settlement agreement included continuing court

17 oversight to ensure that all of the terms of settlement

18 agreement were being complied with, because everyone recognized

19 they couldn't comply with it instantly, and we're just

20 implementing the settlement agreement.

21

So no one is really on probation. Frankly, what

22 we're doing is implementing the parties' agreement. The

23 United States Department of Justice and the City of Portland

24 both acted very responsibly in entering into an agreement.

25 Part of that calls for the Court to keep jurisdiction over the

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1 case, and that's all we are doing.

2

So I hope nobody really does view it as probation,

3 because it really is the parties have entered into an

4 agreement, and they have brought the Court into that. And I'm

5 just following my role under the agreement.

6

MS. COOPER: Right. What I'm saying is I think that

7 should be the frame of reference; that it is an iterative

8 process; that the settlement agreement is an iterative process.

9 We can all think about it together.

10

But if we want to have dialogue, we have to have

11 processes that use the arts of dialogue. We don't have that.

12 As Tom was saying and as Philip was saying, in pockets we have

13 that. Left on their own, they can have a meeting. Sometimes

14 it is rough. But it happens.

15

But in the City overall we don't have that kind of

16 sponsorship or trust. It is an adversarial atmosphere. But we

17 could have that. The tools for genuine dialogue are known.

18 They exist. They are well tested. We could do that.

19

I'm hoping that that is what we are going to do. You

20 challenged us to figure out how to engage people so that they

21 don't feel their only option is to clam up or blow up. I know

22 we can do that. Thank you.

23

THE COURT: Thank you. I agree with you.

24

All right. Mike Schumann, please, and then

25 Commissioner Fritz.

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1

MR. SCHUMANN: Your Honor, my name is Mike Schumann.

2 I am a former attorney, now retired, and I have been

3 volunteering with an organization called Portland Cop Watch.

4

I will try to be brief. I want to talk about

5 Dr. Rosenbaum's testimony. He has a great system for finding

6 police officers that are using excessive force repeatedly.

7 Then what happens, after they are identified and disciplined,

8 is they then file a union grievance and then they go to

9 arbitration. Arbitration, under the Portland Police contract,

10 based upon the things that they've done in the past, in the

11 past they've never found officers in any kind of problems where

12 they give them serious discipline or terminate them. They

13 don't terminate them.

14

So the result of that is, even though Dr. Rosenbaum

15 has this great system, the result of that is going to be that

16 nobody gets disciplined. If you have an organization and the

17 people at the top -- there was an officer that got fired by the

18 mayor and the former police chief, for good reason, because he

19 shot somebody he shouldn't have shot and killed him. He went

20 to union arbitration, he filed a grievance, and they put him

21 back on the force, and that's where he is today.

22

This problem with the City isn't going to get solved

23 until somebody deals with that. For the City to go and do what

24 they did, which is in rapid-fire succession they suspended the

25 COAB and then they secretly negotiated the union contract, put

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1 in that same system of arbitration that has been the problem

2 year after year, and then they decided they were going to

3 reform the IPR.

4

In fact, I don't see good faith over here. I don't

5 see good faith on how they could have signed that union

6 contract and put that same arbitration clause back in that

7 contract. They did it secretly, and that's why everybody got

8 mad.

9

Thank you.

10

THE COURT: Thank you, Mr. Schumann. I appreciate

11 your comments and being here.

12

Commissioner Fritz, welcome.

13

COMMISSIONER FRITZ: Good evening, Your Honor. Thank

14 you so much for hearing us and thank you for setting up this

15 process for having this annual check-in. I was nervous about

16 it. What I've seen this afternoon and tonight means you were

17 absolutely right. So I'm glad we are having this conversation.

18

I want to, first of all, just put some information

19 into the record. The body cam money was just set aside. It

20 has not been spent. Council would have to have a public

21 hearing on whether to have body cameras. Then we would need to

22 have another public hearing on which kind of body cameras.

23 Then we will have a third one -- maybe we will be combining

24 them -- on which what should the rules be. So it has been in

25 some ways helpful that we have had so much controversy over the

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1 past month because all of those things have come to light, and

2 we now know what needs to be fixed, at least some of them. So

3 thank you for that.

4

Second, one of the things that people don't know

5 about the contract we just got is that the union agreed to a

6 standard discipline guide. So what was mentioned by the person

7 who testified before, that's how it used to be. The mayor has

8 fired 12 members of the Police Bureau since he has been in

9 office. Chief Marshman has fired four just since he has been

10 the chief. Those will stay fired because the union in the

11 contract, through their grievances, has agreed to the

12 discipline guide. So the standard is no longer what did we do

13 previously. It is if you did this, then the discipline guide

14 says you get this. The union has agreed to that.

15

So that, coupled with the 48-hour rule going away, I

16 think those are two of the main things that we really needed to

17 fix in this contract. That's why I am enthusiastically

18 espousing on it.

19

You very kindly said that you would listen to all

20 sides. The Council is not on trial for what happened with the

21 contract, nor is City Hall. There have been many complaints

22 filed with the Independent Police Review, and the mayor has

23 promised a full report on that. I'm sure everyone will have

24 the opportunity to do that.

25

I wanted to tell you that every Wednesday Council

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1 convenes at 9:30 in Council chambers. Everybody is allowed in.

2 You said very clearly in another case that even people who were

3 disruptive -- causing a disruption yesterday could not be kept

4 out the next day.

5

THE COURT: What I said was that anyone who was

6 disruptive in a meeting may be removed by the chair or the

7 presiding officer for that meeting. You are not allowed to

8 disrupt a meeting. However, you may not be punished so as to

9 be precluded from attending future meetings. But if you were

10 to attend a future meeting and be disruptive, the presiding

11 officer has every right and every legal authority to remove

12 someone who is being disruptive from that meeting.

13

COMMISSIONER FRITZ: Thank you, sir.

14

So we did take hours of testimony on the police

15 contract, and we had to stop because various members of the

16 Council had other things they committed to. So everybody who

17 was still supposed to speak but had signed up was allowed to

18 speak at the next one.

19

I've lost track of which particular meetings got

20 disrupted. I do remember one, though, where people signed

21 up -- five people can sign up for citizen communications on any

22 Council calendar. The fourth person was a Franklin High School

23 Russian teacher who wanted to introduce to the Council and

24 community a visiting dignity from Russian.

25

Thank you. I am very nervous.

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1

THE COURT: By the way, one of the things that we all

2 do when we are nervous is we speak too quickly, and I am really

3 sympathetic to our court reporter.

4

COMMISSIONER FRITZ: And I should breathe

5 occasionally.

6

The protestors disrupted that testimony. So we did

7 exclude that person who was disruptive.

8

Then the next one was the proclamation cerebrating

9 Filipino-American month, and the assembled dignitaries of the

10 Filipino-American community were not able to speak because so

11 many people were disrupting the meeting and saying, "Get to the

12 police contract. Get to the police contract." So over and

13 over again they have been disrupted.

14

Then also there is staff at City Hall that are not

15 assigned to be in Council chambers who are supposed to be doing

16 work in their various offices, including the auditor's staff

17 and the IPR staff. We've had situations where we have had

18 hundreds of people in City Hall with doors locked just banging

19 on our doors and not letting staff do their work, and it is

20 really frightening.

21

So we appreciate your suggestion to have a

22 conversation without a particular topic, but just a

23 conversation about how to have a conversation.

24

With respect, Your Honor, I don't think we are

25 supposed to do that if we are supposed to come back in 30 days

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1 for how we are going to move forward with the COAB. I helped

2 set up the rules for the COAB when Mayor Sam Adams was

3 negotiating with Amanda Marshall, and so I take full

4 responsibility for the fact that this hasn't worked, despite

5 all of our best efforts.

6

I don't know what to do to make it work. You said

7 that we are not probation, but in a way we are because it is

8 our police force that has to change. It is our community that

9 has to begin to trust our police.

10

So I was asked to not be very much involved with the

11 COAB in its first stages so they could figure out amongst

12 themselves what they wanted to do. Yet there is that: Do they

13 report to the COCL? Do they report to you? They certainly

14 don't report to me, but then they expect the City to respond to

15 their requests.

16

Mr. Steenson said they've developed dozens and dozens

17 of recommendations. It is not clear to me at least whether

18 that's in the settlement agreement. I do know that we don't

19 have a formal community engagement oversight plan, which is in

20 the settlement, and so it would be really helpful -- if we do

21 come back in 30 days -- for you to tell us what should the COAB

22 be focusing on. How should we appoint the members? Even in

23 the AMAC's summary to you they said "to be determined," in

24 terms of how do these people get selected.

25

Four members of the Council have had their members

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1 resign. Each of them have said they can't in good conscience

2 ask somebody else to come in when they don't know what they are

3 doing, they are subject to verbal abuse at every meeting, and

4 the scope of work is at least 20 hours every month, not ten,

5 and so I would appreciate your direction.

6

THE COURT: Although let me just respond to it this

7 way, and, then, of course, we will let counsel think about this

8 as the days proceed. We have a lawsuit here between primarily

9 the United States and the City of Portland. It settled with a

10 settlement agreement where the parties have agreed to continued

11 court jurisdiction. I will do whatever the parties ask me to

12 do; footnote, provided that it is constitutional and otherwise

13 legally appropriate.

14

If the parties come together and give the Court a

15 question, an assignment, and ask me to provide direction, I

16 will do whatever the parties jointly ask me to do. But until

17 then, and unless that happens, this is the parties' settlement.

18 The parties are to work together. If the parties working

19 together want to go ask a third party to do something, they can

20 do that. If they want to ask the Court to do something, they

21 can do that.

22

But if they don't agree, then the only real vehicle

23 that is left under the law is for the United States to file a

24 motion before me. If they file a motion, I'll go through

25 appropriate due process and give everybody an opportunity to be

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1 heard. I will give the best decision that I can, consistent

2 with the law and the facts. Whoever doesn't like my decision

3 will have an opportunity, to the extent the law permits, to

4 appeal that, and that's how we proceed.

5

So you can ask me to do something, and that's fine.

6 But my suggestion back to you is: Ask the City -- through

7 their counsel -- to discuss this with the plaintiff, the United

8 States -- through their counsel -- and if the parties jointly

9 ask me to do something, I will do it. Footnote: Assuming it

10 is legal.

11

COMMISSIONER FRITZ: Thank you, sir. And I feel the

12 same way. I am sorry that we haven't gotten further than we

13 have. I'm sorry that at the beginning of this meeting, this

14 hearing, we heard a lot about partial compliance and

15 substantial compliance, and the big part that's not compliance

16 is the part that I feel responsible for, which is the community

17 engagement.

18

I need to know either from the four parties or you or

19 both what you want me to do and what authority do I have then

20 to do it. And do I stay away? Do I guide them? And the

21 Council needs to know what are we going to be asking our

22 appointees to do when we appoint them.

23

The other piece I would like everybody to consider,

24 in terms of a timeline, we do have a new mayor coming in on

25 January 1st. He will be the police commissioner, and he has to

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1 buy into whatever it is we decide. So I would really like to

2 have him involved in setting the course for the next year of

3 the COAB.

4

THE COURT: Not to set an inappropriate tone on that,

5 whether he buys in or not, he is legally bound to the

6 settlement.

7

MS. OSOINACH: Your Honor, I would like to step in

8 here because Commissioner Fritz has been a warrior for the

9 COAB. So I think what I am hearing and what I might ask is

10 that the City wants to take ownership of this. While I

11 appreciate the Court's willingness to set deadlines and have

12 this come before you, there are a number of complicated

13 factors, and so what we would like is to be able to talk to the

14 Department of Justice, the AMAC, the PPA, the COAB, the COCL,

15 and if we need to come back before this Court for a status

16 conference, we would like to be able to at least to confer

17 other than the five minutes that we have been given to come and

18 ask you and to do that.

19

THE COURT: I will turn to Mr. Geissler in a moment.

20

Let me respond to one aspect you just said. The

21 reason why we don't have a court monitor in this settlement

22 agreement is because the parties, when they negotiated the

23 settlement agreement, didn't want a court monitor. If I recall

24 the arguments that were being made to me two years ago in the

25 fairness hearing, the City said that they want to take

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1 ownership of this, and that's why they were the ones who would

2 be contracting with the COCL and ultimately forming the COAB.

3

I approved the settlement as fair, reasonable, and

4 adequate. It may not have been perfect. It may have had some

5 mistakes, in hindsight, but on balance I concluded that it was

6 a fair, reasonable, and adequate resolution of the problems

7 identified in the complaint.

8

We are all now bound to the settlement agreement and

9 follow its procedures. But I do react when you say that the

10 City wants to take ownership, because that's what I heard two

11 years ago for the reason why we don't have a court monitor,

12 which I approved, and it is too late to go back in that river.

13

MS. OSOINACH: Your Honor, to be clear, the City has

14 taken ownership, and I appreciate very much your comments today

15 recognizing. We are talking about one area, an important area

16 of the settlement agreement. It is not fair to say, as

17 Ms. Saadat pointed out, that there hasn't been progress made

18 with the COAB; that the City hasn't taken ownership. There

19 have been enormous challenges, and we are continuing to work on

20 them.

21

THE COURT: I agree. As we've heard today, including

22 the United States in its opening remarks commented, there has

23 been some tremendous achievements already accomplished under

24 the settlement agreement. All parties should be commended for

25 moving us forward in the positive way that we have already

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1 moved forward to achieve.

2

However, we all recognize there is more work to be

3 done, as the United States in both their written in oral

4 comments, have identified. There are some aspects, including

5 an important one, where there is non-compliance with the

6 settlement agreement.

7

Now, in addition to the parties figuring out how we

8 continue to move forward and accomplish that which the

9 settlement agreement was designed to achieve, we also need to

10 be mindful, or at least we start with the parties, be mindful

11 of what we should do about the non-compliance and when should

12 we do it.

13

With that, I will hear another comment from

14 Ms. Osoinach and then turn to Mr. Geissler.

15

MS. OSOINACH: The City is standing before you today

16 with the recognition that is an area in which we are

17 non-compliant, and I applaud Commissioner Fritz, my client, for

18 her willingness to stand before you today and discuss the

19 challenges that we face, and I will allow her to finish her

20 comments.

21

THE COURT: That's between client and lawyer. I'm

22 staying out of that one.

23

COMMISSIONER FRITZ: I just wanted to repeat the

24 City's commitment, my commitment, and you make a good point.

25 The new mayor doesn't have a choice about this, and I have been

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1 telling him that ever since he started running. So if we had

2 some time to do it properly, because what I heard especially

3 from Ms. Saadat, if we are pushed into deadlines, then

4 community members -- and that's the other thing to remember.

5 These are volunteers.

6

I'm told often we are not appointing new council

7 members. I can't make a volunteer show up to ten meetings. So

8 that's where we have got to be very clear, so it is something

9 that my colleagues can actually go to somebody and say, "I bet

10 you would want to do this, this is what you are going to do,

11 and this is what the product is."

12

At this point I don't think we are quite there.

13 Thank you so much.

14

THE COURT: Thank you, Commissioner. I appreciate

15 it.

16

Mr. Geissler.

17

MR. GEISSLER: Thank you, Your Honor.

18

I was remiss in not giving my thanks to all of the

19 members of the community with whom we have worked and are

20 parties and their counsel who we have worked with over the past

21 two years. It has been a pleasure to work with them. I will

22 offer one slight correction.

23

My learned colleague, Mr. Karia, said that he

24 believed that we all are in agreement that body-worn cameras

25 were a mandatory subject of bargaining. The United States does

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1 not believe that. It is a permissive category of bargaining,

2 just as it has not been mandatory subject of bargaining, mobile

3 video cameras or other surveillance cameras that have been used

4 heretofore.

5

THE COURT: So the record is clear on this, I am not

6 expressing an opinion on that. That issue is not before me.

7 If it ever does come before me, I will be glad to review

8 briefing, hear oral argument, make whatever ruling is

9 appropriate at the time, but I've expressed no opinion on that

10 question.

11

MR. GEISSLER: Thank you, Your Honor.

12

With respect to the issue of status conferences, I

13 believe the time we had to speak was abbreviated. There is

14 room still to come to reach an agreement, both on the

15 scheduling and the mere logistics of the holidays that we face

16 now. I believe the parties would benefit with the ability to

17 speak with one another before providing Your Honor the

18 proposition of setting dates on Your Honor's own.

19

THE COURT: I wouldn't think it would be appropriate

20 for me to set a deadline of when counsel will respond to me on

21 additional scheduling issues. Does that sound reasonable, and

22 if so what, what would you propose?

23

MR. GEISSLER: It does. I am in town this week,

24 Your Honor. I imagine we can speak this week. Perhaps one

25 week from day we can have the agreements from both the Civil

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1 Rights Division, the U.S. Attorney's Office, as well as the

2 other parties.

3

THE COURT: All right. I don't think I need to right

4 now today, although I will if you want, set another annual

5 status conference for next year. But perhaps what the parties

6 can do is think about what they would like to see in the next

7 twelve months. If it turns out a status conference in X number

8 days or every month or every other month or quarterly, you talk

9 about it and let me know what you want.

10

I could set a conference now, a public hearing, or

11 our third annual hearing for the fall of 2017, or I could wait

12 and let the parties discuss and see how it fits into the big

13 picture. I will tell you this, though, that there will be no

14 fewer than one meeting per year. It does sound like there will

15 also be several interim meetings between now and next fall.

16

Should I set next fall's meeting now or should I wait

17 and see what you all want to talk about?

18

MR. GEISSLER: Without providing too daunting a task

19 for our one-week assignment -- I don't want to withdraw my

20 offer of that one-week deadline -- I think perhaps we could

21 spend some of our time talking about the proposed schedule

22 going forward so that the City and the other parties can come

23 to an agreement when best to have a hearing and set the

24 briefing schedule.

25

THE COURT: Very good.

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1

MS. OSOINACH: Your Honor, from the City's point of

2 view, we request that you set the annual status conference

3 today, mainly because when you did that last year, it provided

4 advance notice to everyone, including members of the public who

5 were here, and I found that to be very helpful.

6

THE COURT: Very good. Does Thursday, October 5th,

7 2017, work for counsel? 2017. Feel free to check.

8

MR. GEISSLER: Yes, Your Honor.

9

MS. OSOINACH: Yes for the City, Your Honor.

10

MR. KARIA: Yes, sir.

11

MS. ALBIES: Yes, sir.

12

THE COURT: All right.

13

Then let's set our next conference.

14

Our next annual conference -- I forgot to ask Mary.

15

Mary, do you agree that will work?

16

THE CLERK: Yes.

17

THE COURT: October 5, 2017 at 10:00 a.m. in this

18 courtroom. I look forward to receiving -- probably the best

19 thing to do is file it as a formal publicly filed document,

20 either as a status report or a request for the next conference.

21 File something after you have conferred. If you would like to

22 know about the Court's availability before you put anything on

23 paper on that, just call or e-mail my courtroom deputy. She

24 has our calendar, and I will do my very best to accommodate

25 whatever you all have agreed upon.

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1

If for whatever reason you can't agree, then let me

2 direct the United States to take the lead in preparing a joint

3 status report stating what is the United States' position.

4 Confer with the City and put in that same document what is the

5 City's position. Confer with Intervenor Police Association,

6 and let me he know what their position is. Then confer with

7 Amicus AMA Coalition. If you agree, I will give you darn near

8 anything you ask for. If you disagree, I will make a prompt

9 ruling.

10

MS. OSOINACH: Thank you.

11

MR. GEISSLER: Thank you.

12

THE COURT: All right. As I think I said earlier

13 today, I thank everyone for their hard work and their

14 tremendous accomplishments so far. There is more to do, as you

15 all know and as you all recognize, but we have come a long way.

16 There is more work to do, but I think we all live in this

17 community together. I am sort of including the COCL in that,

18 even though I understand what you said geographically.

19

We all live in this community together. We are

20 trying to solve an important problem to make things better for

21 everyone. We have different perspectives, different

22 experiences, different views on how to make things better. But

23 I do believe that everyone in this room is trying to make

24 things better for everyone, and I appreciate everyone's hard

25 work in this.

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1

Thank you. We will be in recess.

2

(Recess.)

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1

--oOo--

2

3

I certify, by signing below, that the foregoing is a

4 correct transcript of the record of proceedings in the

5 above-entitled cause. A transcript without an original

6 signature, conformed signature, or digitally signed signature

7 is not certified.

8 /s/ Dennis W. Apodaca
9 DENNIS W. APODACA, RDR, RMR, FCRR, CRR Official Court Reporter
10

November 5, 2016 DATE

11

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TRACY REEVE, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov ELLEN OSOINACH, OSB# 024985 Senior Deputy City Attorney Email: ellen.osoinach@portlandoregon.gov JUDY PROSPER, OSB# 152214 Deputy City Attorney Email: judy.prosper@portlandoregon.gov MARK AMBERG, OSB# 922133 Chief Deputy City Attorney Email: mark.amberg@portlandoregon.gov Office of City Attorney 1221 SW 4th Avenue, Suite 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089
Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, PLAINTIFF,
v. CITY OF PORTLAND,
DEFENDANT.

Case No. 3:12-cv-02265-SI
DEFENDANT CITY OF PORTLAND’S POST STATUS CONFERENCE MEMORANDUM

Preliminary Statement The City of Portland submits this Memorandum to address two issues which arose at the annual Status Conference held in this matter on October 25, 2016. The City reaffirms its strong commitment to working collaboratively and constructively with the United States, the intervenor and the enhanced amicus to resolve outstanding issues respecting implementation of the Settlement Agreement. The City nonetheless has two primary objections to place in the record regarding the conduct of the October 25, 2016 status conference and any proposal to require additional status conferences on any greater than an annual basis.

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First, the City believes that there was no legal basis to allow courtroom observers to participate in the status conference. The Court invited any members of the public who were present in the courtroom to offer non-sworn commentary on any subject of their choosing. The City finds it objectionable that the Court specifically invited a party adverse to the City in another case handled by the Court to speak. It also was objectionable that the Court allowed ad hominem attacks directed at Kathleen Saadat, the recently retired Chair of the Community Oversight and Advisory Board (COAB), Portland Mayor Charlie Hales and Portland City Commissioner Amanda Fritz.
The City is most disturbed about and objects in the strongest possible terms to the Court’s allowance of heated attacks against two female attorneys representing the City. These attacks included a reference to “upskirting”1 one attorney, and an exhortation to the other, a Black Haitian-American woman, that she should “go back to Haiti.” This latter direct attack on an attorney appearing in a federal courtroom based on her national origin and race was allowed to go unchallenged and unadmonished by the Court. Filed herewith as Exhibit A to the Declaration of Portland City Attorney Tracy Reeve is a letter to the Court from the City’s six elected officials expressing their condemnation that this was permitted to occur.
Second, the Court offered at the status conference to schedule future status conferences upon the request of any of the parties or the amicus. The City objects to the scheduling of any additional status conferences in this matter beyond the annual status conferences negotiated by the parties as part of the settlement of the City’s appeal of the Court’s original Order approving the Settlement Agreement. See Amended Ordering Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference (“Amended Order”), Docket Order 96.2 The City is willing to provide the United States, intervenor and
1 “Upskirting” is the practice of surreptitiously photographing underneath a female's dress or skirt. http://definitions.uslegal.com/u/upskirting/ 2 In its post-conference filing, the United States refers to the portion of the Amended Order that provides for “annual status conferences referenced in this Order or otherwise as may be directed by the Court,” (Docket No. 96, referred to in error by the United States as Docket No. 99). Nothing in the Amended Order, which the parties heavily negotiated, was intended to allow for

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enhanced amicus with a written progress report within thirty (30) days, and periodically thereafter, but believes that further in-court status conferences prior to the next annual Status hearing to be held on October 5, 2017, would be counterproductive.
Procedural and Legal Framework In 2010, Aaron Campbell, an unarmed black man experiencing a mental health crisis, was shot and killed by a Portland Police Bureau (PPB) officer. In the aftermath of that tragedy, Portland’s then-Mayor Sam Adams and then-Police Commissioner Dan Saltzman invited the United States Department of Justice (“DOJ”) to investigate the PPB and make recommendations for improvement of its policies and procedures. The DOJ conducted a lengthy review of police use of force in Portland, and issued a report asserting that PPB had a policy or practice of unconstitutionally using excessive force on people who either were or were perceived to be mentally ill. The City of Portland denied, and continues to deny, that any such policy or practice existed. But the City also was and is committed to improving both the performance and the perceived legitimacy of its Police Bureau. Desiring an outcome beneficial to all, and most importantly to the community PPB serves, the City embarked on extended negotiations with DOJ to agree on improvements that the City could implement to improve the interactions between the police and people with mental illness, to enhance transparency, and to build trust and legitimacy with the community. The City’s insistence that these results be achieved through a Settlement Agreement between the City and the United States, rather than by a consent decree entered by the Court, was intentional. An essential feature of the Settlement Agreement, from the City’s point of view, was that the parties themselves would be responsible for its progress and enforcement. The DOJ agreed to this structure, so long as it could file, and then conditionally dismiss, this federal court action in order to ensure that the Court would retain jurisdiction to enforce the Agreement under
in-court conferences or hearings more frequently than on an annual basis, in the absence of the invocation by one party or the other of the Court’s authority to enforce the Settlement Agreement in accordance with its terms.

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specific circumstances. Those circumstances are set forth at paragraphs 181 through 186 of the Settlement Agreement. Short of invocation of that process by the DOJ, however, the Settlement Agreement was never intended to involve the active, independent participation by the Court in its monitoring or implementation. As agreed by the parties, DOJ filed this action and moved to enter the Settlement Agreement and to dismiss the case.
The Court proposed to hold a “fairness hearing” before determining whether to approve the Settlement Agreement. The parties consented to that process. The Portland Police Association (PPA) was allowed to intervene in the case, and the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC) was granted “enhanced amicus” status. After the fairness hearing, the Court entered an “Order Entering Settlement Agreement, Conditionally Dismissing Litigation, And Setting First Annual Settlement-Compliance Hearing,” Docket No. 86. As part of its Order, the Court directed “periodic hearings, to be held approximately annually, unless otherwise ordered by the Court, to describe to the Court the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end, to respond to the Court’s questions on these issues, and to present evidence on these issues as so directed by the Court.” Id. The City objected to the breadth of this provision. Specifically, the City objected to being required to attend status hearings more than once per year, and to evidence-taking by the Court other than to receive reports from the United States, the City (to include the Compliance Officer and Community Liaison (COCL) and COAB), the Portland Police Association and the AMAC on the progress of implementation of the Settlement Agreement. 3 The City appealed the Order, and, on appeal, reached a mediated agreement with the other parties that resulted in the Court’s entry of its Amended Order, Docket No. 96. The Amended Order calls for “annual status conferences
3 The Order and the Amended Order contemplate annual status conferences to report on three agreements: the Settlement Agreement between the United States and the City; the Memorandum of Agreement between the City and the Portland Police Association; and the Collaborative Agreement between the City and the AMAC. For ease of reference they are collectively referred to as the “Settlement Agreement.”

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to describe to the Court the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end and to respond to the Court’s questions on those issues.” Importantly, the Amended Order calls only for “annual” status conferences, and does not contemplate participation by anybody other than the parties, the amicus, the COAB and the COCL at those annual status conferences.
The October 25, 2016 Status Conference The Second Annual Status Conference held on October 25, 2016, demonstrated starkly the foreseeable and counter-productive consequences of the Court’s inserting non-parties into the implementation process. The parties expected that this status conference would be conducted in accordance with the Amended Order, as the First Annual Status Conference (held on September 14, 2015) had been. Specifically, the parties expected that the Court would hear from the United States, the City, a member of the COAB and the COCL on “the progress being made toward achieving substantial compliance with all provisions of the Settlement Agreement and any obstacles or impediments toward that end and to respond to the Court’s questions on these issues;” would hear from “the United States, the City and the PPA. . . to describe to the Court the status of the MOA;” and would hear from “the United States, the City and the AMA . . . to describe to the Court the status of the CA and to respond to any questions by the Court….” Amended Order, Docket No. 96. To the City’s surprise, in addition to the anticipated reports from the parties, amicus, the COAB member and the COCL, the Court invited all members of the public in attendance to speak including an invitation by name to a party adverse to the City in another case recently before the Court. The result was a series of commentaries from a collection of individuals (many of whom routinely disrupt City Council and COAB meetings) which included ad hominem attacks on the City’s elected officials and volunteers and racist and sexist comments directed toward the City’s lawyers.4 These unwarranted diatribes were extremely disturbing to the people
4 After the conclusion of the status conference, the city attorneys who appeared in Court, along with two representatives of the Police Bureau, were followed, filmed and verbally insulted and

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at whom they were directed, and were inappropriate for any setting, much less a United States District Court. The Court did not prevent, admonish or limit this behavior. The Court’s tolerance of ad hominem attacks and explicit disparaging references to one attorney’s national origin was not in keeping with its obligations under Canon 3.A(3) of the Code of Conduct for United States Judges: “A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.”
All six of the City of Portland’s elected officials are offended that the Court allowed such conduct to occur. See Exhibit A to Reeve Declaration filed herewith. It is not reasonable, as the Court appeared to suggest at the status conference, to expect the City and its representatives “to have a conversation about having conversations” with people who behave in this manner. City staff and volunteers should not be expected to have a conversation about how to listen to verbal abuse or how to tolerate the threat of physical violence. The City of Portland has an obligation to those who work for it or on its behalf not to acquiesce in their exposure to the kind of behavior that this Court permitted at the October 25, 2016, hearing.
The Community Engagement Area of Noncompliance In determining how to restructure the community engagement process to optimize the goals shared by the City, the DOJ, amicus and the community, the City is committed to considering informed input and recommendations from all voices – small, individual, collective and powerful, and to dedicating the resources necessary to achieve the goals of the Settlement Agreement in this area. The City is immensely grateful to the volunteer Community Oversight and Advisory Board members, both past and present who have dedicated countless hours – well beyond that which was expected when they agreed to serve – to work on a very important
harassed all the way back to City Hall by a group of individuals who attended the status conference, including the individual who made the sexist and discriminatory insults to the two city attorneys at the status conference. See Declaration of Tracy Reeve at ¶¶ 4-5.

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experiment in direct community participation in police reform. It is painfully clear that there have been several obstacles in the way of COAB's ability
to be successful at its stated tasks and goals, and that amendments to the Settlement Agreement will be necessary to achieve the objectives of meaningful community engagement. All parties – amicus and intervenor included – agree that the Settlement Agreement’s structure to support the COAB must be reconsidered. Despite substantial efforts by many parties, and the dedication of significant resources by the City, COAB meetings devolved to the point where the COAB Chair, COAB members and City staff faced the type of behavior that was on display at the Status Conference on October 25, 2016, and worse, from some of the same individuals. The “civil unrest” at COAB meetings referred to by DOJ in its compliance assessment resulted in COAB members, the Chair, City employees and members of the public expressing concern for their physical safety at meetings and facing reputational harm due to verbal attacks both in person and electronically.
The COAB has requested independence from the COCL and the COCL has requested to be relieved of its obligation to chair the COAB. Given all of this, and as DOJ pointed out in its compliance assessment, the effort to keep the COAB functioning began to require a disproportionate amount of time and resources, with mixed results at best in actually achieving the outcomes envisioned by the Settlement Agreement.
In sum, all parties agree that the Settlement Agreement’s structure to support the COAB must be reconsidered. All have agreed to continue working to develop an updated proposal and necessary amendments. The City is dedicated to moving forward and acknowledges that there are areas where it needs to do better, including providing more training and support for community members who agree to serve and a better delineation of the work to be accomplished. The City renews its commitment and dedication to improving and ensuring intentional and wellinformed community engagement with the police bureau. The City looks forward to continuing to work with DOJ, amicus and others to address the issues that have prevented success to date in

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achieving community engagement as contemplated under the Settlement Agreement. The City is willing to be fully accountable to the DOJ and the public as the parties collectively consider modifications to the Settlement Agreement to ensure meaningful community engagement. And DOJ, of course, retains the ability to invoke this Court’s jurisdiction under the Settlement Agreement should it determine that the City is in breach and that the breach cannot be resolved through the mechanisms set forth in the Settlement Agreement.
Short of that, however, the City is neither willing nor obligated to participate in court status conferences beyond the annual status conferences set forth in the Amended Order entered by this Court. This issue has already been the subject of an appeal in this case. When this Court entered the parties’ Settlement Agreement, it also issued an order mandating “periodic hearings” to “present evidence … as so directed by the court” to be held whenever “ordered by the court.” The City objected to the breadth of that order and to this Court’s assumption of the power to unilaterally call hearings and direct the taking of evidence independently of the parties. On appeal, the parties (including the AMAC and the PPA) reached a mediated agreement providing only for annual, non-evidentiary status conferences at which specified entities (the City, the United States, the PPA, the AMAC, the COCL and the COAB) would participate. There was no provision for participation at the annual status conference by members of the public. This Court signed the parties’ proposed amended order to that effect. It is the City’s position that unless and until the United States invokes the process set forth in paragraphs 181 through 185 of the Settlement Agreement to secure compliance without success, and files a motion to enforce compliance under paragraph 186 of the Agreement, the Court has no legal basis to schedule any proceedings until the next annual status conference which is scheduled for October 5, 2017.
Conclusion The City of Portland remains committed to working collaboratively and constructively with the United States, the intervenor and the enhanced amicus to resolve outstanding issues respecting implementation of the Settlement Agreement. To that end, the City is agreeable to

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providing a written report to the United States, the intervenor and the enhanced amicus in thirty

(30) days, regarding efforts to address the community engagement aspects of the Settlement

Agreement, and periodically thereafter.

Dated: November 3, 2016.

Respectfully submitted,

/s/ Tracy Reeve
TRACY REEVE, OSB # 891123 City Attorney Email: tracy.reeve@portlandoregon.gov Of Attorneys for Defendant

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TRACY REEVE, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov ELLEN OSOINACH, OSB# 024985 Senior Deputy City Attorney Email: ellen.osoinach@portlandoregon.gov JUDY PROSPER, OSB# 152214 Deputy City Attorney Email: judy.prosper@portlandoregon.gov MARK AMBERG, OSB# 922133 Chief Deputy City Attorney Email: mark.amberg@portlandoregon.gov Office of City Attorney 1221 SW 4th Avenue, Suite 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089
Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, PLAINTIFF,
v. CITY OF PORTLAND,
DEFENDANT.

Case No. 3:12-cv-02265-SI DECLARATION OF TRACY REEVE

I, TRACY REEVE, being first duly sworn, do depose and say: 1. I am the City Attorney for the defendant City of Portland, Oregon in the aboveentitled matter and I make this declaration in support of Defendant City of Portland’s Post Status Conference Memorandum. 2. I was present for the entirety of the October 25, 2016, Status Conference. 3. David Kif Davis and Robert West both spoke at the status conference and Mr. Davis made racist and sexist comments during the hearing about two of the city attorneys who represented the City at the hearing.

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4. Shortly after conclusion of the status conference, I walked back to City Hall with the city attorneys who appeared in Court, along with two Police Bureau representatives. We were verbally accosted immediately outside the courthouse by several individuals, two of whom, David Kif Davis and Robert West, were known to me.
5. Both Mr. Davis and Mr. West followed, filmed and verbally harassed us all the way back to City Hall, and had to be prevented from entering City Hall with us after hours.
6. I am aware that Mr. Davis has also posted disturbing video about one of these attorneys online resulting in extreme online harassment and misogyny directed toward that attorney.
7. Attached hereto as Exhibit A is a true and correct copy of a letter signed by Portland’s six elected officials: Mayor Charlie Hales, Commissioner Nick Fish, Commissioner Amanda Fritz, Commissioner Steve Novick, Commissioner Dan Saltzman and Auditor May Hull Caballero.
I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury pursuant to 28 U.S.C. § 1746.
Dated: November 3, 2016. Respectfully submitted,
/s/ Tracy Reeve TRACY REEVE, OSB # 891123 City Attorney Email: tracy.reeve@portlandoregon.gov Of Attorneys for Defendant

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CITY OF Charlie Hales, Mayor
Amanda Fritz, Commissioner Nick Fish, Commissioner
^ V^rVJLO-V^l^l Dan Saltzman, Commissioner Steve Novick, Commissioner
Mary Hull Caballero, Auditor

November 3, 2016
Honorable District Judge Michael H. Simon Mark 0. Hatfield United States Courthouse Courtroom 13B 1000 Southwest Third Avenue Portland, OR 97204-2944
Re: United States u. City of Portland, 3:12-cv-02265-SI
Dear Judge Simon:
We, the Mayor, Council, and Auditor elected by the people of the City of Portland write to express our unanimous condemnation of the behavior permitted to occur at the status conference held on October 25, 2016. Your Honor invited and permitted members of the public to subject the City's former COAB Chair, lawyers and officials to racist, sexist, and other ad hominem attacks during a court proceeding. That abuse included references to "up-skirting" a female attorney and telling another attorney, a Black Haitian-American woman, to "go back to Haiti/51 Your Honor also affirmatively invited a party adverse to the City in another case before this court to speak, despite the fact that he had no connection to the subject matter of the status conference. All of these circumstances raise concerns of partiality and the City's ability to receive fair treatment from this court.
Some of the abuse directed at Deputy City Attorney Judy Prosper was accompanied by shouts of "that's enough" from the audience, but your Honor allowed the slurs against her based on national origin to proceed without interruption or admonishment. This represented a failure to maintain order and decorum in a courtroom and we believe contravened expected standards of judicial conduct. See Canon 3.A(3) of the Code of Conduct for United States Judges.
The City has always been and remains committed to the Settlement Agreement with the United States and to improving the performance of and trust in its Police Bureau. Its progress toward doing so, however, is delayed and frustrated when City employees and officials have to subject themselves to the sort of ad hominem diatribes that are unacceptable in any setting, let alone a United States
1 We do not yet have access to a transcript or recording of the proceedmgs and are accordingly relying on the collective memory of those m attendance as to what was said.

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District Court. We commend our attorneys and employees who sat stoically through that verbal abuse. As elected officials, it is our duty to stand up for them when they are exposed to such unacceptable behavior.
Respectfully yours,

^c ^7
larHe Hales Mayor

Amanda Fritz Commissioner

^

Nick Fish
Commissioner

Dan Saltzman Commissioner

. .'- / -
Steve Novick Commissioner

ec: Bill J. Williams, United States Attorney's Office Janice E. Hebert, United States Attorney's Office
Adrian L. Brown, United States Attorney's Office Jared Hager, United States Attorney's Office
Laura L. Coon, United States Department of Justice R. Jonas Geissler, United States Department of Justice Brian Buehler, United States Department of Justice Anil Karia, Portland Police Association Kristen A. Chambers, AMAC Shauna M. Curphey, AMAC Jessica Ashlee Albies, AMAC

Mary Hull Caballero Auditor

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
IN RE CITY OF PORTLAND,
Petitioner, v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON,
Respondent, and
UNITED STATES OF AMERICA, PORTLAND POLICE ASSOCIATION, and ALBINA MINISTERIAL ALLIANCE COALITION
FOR JUSTICE AND POLICE REFORM,
Respondents-Real Parties in Interest.
From the United States District Court For the District of Oregon, Portland Division,
The Hon. Michael H. Simon Case No. 3:12-cv-02265-SI
PETITIONER CITY OF PORTLAND’S EXCERPTS OF RECORD AND ADDENDUM
VOLUME II
Tracy Reeve, OSB# 891123 City Attorney Office of City Attorney 1221 SW Fourth Avenue, Suite 430 Portland, OR 97204 Telephone No.: (503) 823-4047 Facsimile No.: (503) 823-3089 E-Mail: tracy.reeve@portlandoregon.gov
Attorney for Petitioner

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i INDEX OF EXCERPTS OF RECORD
Order (Oregon USDC Docket No. 140, November 11, 2016) ........................... ER-300
Defendant City of Portland’s Supplemental Memorandum (Oregon USDC Docket No. 141, December 2, 2016) .............................. ER-305
Civil Docket Sheet for Case No. 3:12-cv-02265-SI (Printed December 9, 2016)...................................................................... ER-308
INDEX OF ADDENDUM
Opinion and Order Joseph Walsh v. Bryant Eng, Charles Hales, and City of Portland D.C. Case No. 3:15-cv-01666-SI (Oregon USDC Docket No. 29, December 31, 2015) ...............................ADD-1

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-2265-SI ORDER

Billy J. Williams, United States Attorney; Adrian L. Brown, Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE, DISTRICT OF OREGON, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Steven H. Rosenbaum, Chief; Laura L. Coon, Special Counsel; R. Jonas Geissler, Senior Trial Attorney; Brian Buehler and Seth Wayne, Trial Attorneys, Special Litigation Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, 950 Pennsylvania Avenue, NW, Washington, D.C. 20530. Of Attorneys for Plaintiff.
Tracey Pool Reeve, City Attorney; Ellen C. Osoinach, Senior Deputy City Attorney; Judy S. Prosper, Deputy City Attorney; Mark P. Amberg, Chief Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 S.W. Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant.
Anil S. Karia, PUBLIC SAFETY LABOR GROUP, 3021 N.E. Broadway, Portland, OR 97232. Of Attorneys for Intervenor-Defendant Portland Police Association.
Jessica Ashlee Albies, CREIGHTON & ROSE, P.C., Powers Building, 65 S.W. Yamhill Street, Suite 300, Portland, OR 97204; Shauna M. Curphey, CURPHEY & BADGER, P.A., 520 S.W. Sixth Avenue, Suite 1040, Portland, OR 97204; Kristen A. Chambers, KIRKLIN THOMPSON & POPE, LLP, 1000 S.W. Broadway, Suite 1616, Portland, OR 97205. Of Attorneys for Enhanced Amicus Curiae Albina Ministerial Alliance Coalition for Justice and Police Reform.
Page 1 – ORDER

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Michael H. Simon, District Judge. In the Amended Order Entering Settlement Agreement, Conditionally Dismissing
Litigation, and Setting First Annual Status Conference (ECF 99), entered on July 30, 2015, the Court Ordered that there shall be “annual status conferences referenced in this Order or otherwise as may be directed by the Court.” ECF 99 at 5 (emphasis added). No party objected to that text or timely appealed from that Amended Order.
On October 18, 2016, one week before the Court held its Second Annual Status Conference in this case, the United States filed Plaintiff’s Notice of Second Periodic Compliance Assessment Report. ECF 124. As an exhibit to that Notice, the United States attached its 2016 Settlement Agreement Compliance Assessment. ECF 124-1. The United States noted in that Compliance Assessment that, in addition to substantial or partial compliance with many aspects of the Settlement Agreement, which the Court commends, the City was in “non-compliance” with regard to its obligations relating to the Community Oversight Advisory Board (“COAB”). ECF 124-1 at p. 2 and pp. 114-125.
The Court held its Second Annual Status Conference on October 25, 2016. At that conference, the United States initially requested that the Court hold an interim status conference after 30 days for the City of Portland to report on its progress in developing a revised plan for the COAB and to hold another interim status conference after 90 days to hear from the Parties regarding any proposed modifications to the Settlement Agreement pursuant to Paragraph 175. After the United States and the City conferred, both parties requested one week to confer further. The Court allowed that and directed the filing of a post-conference status report.

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On November 2, 2016, the United States filed Plaintiff’s Post Status Conference Status Report. ECF 136. The following day, the City filed its Post Status Conference Memorandum (ECF 138) and a declaration from the City Attorney (ECF 139). The Court has reviewed all of these documents.
The United States reiterates its request for interim status conferences in 30 and 90 days, but offers in lieu of the first conference that the City be required to file a written Supplemental Compliance Report by December 2, 2016, describing the “steps taken to achieve compliance with Section IX of the Settlement Agreement.” ECF 136 at 3. The United States further requests that the Court hold an interim status conference on or about January 31, 2017, “for the Parties to report on the obligation of Paragraph 175 of the Settlement Agreement and any stipulated modification.” Id.
The City objects to the Court holding status conferences on a basis more frequent than annually. ECF 138. Based on the Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference (ECF 99), as well the Court’s inherent authority, the Court has the authority to hold status conferences whenever appropriate and will do so.
The Court hereby adopts the Plaintiff’s alternative proposal and ORDERS the City to file not later than December 2, 2016, a written Supplemental Compliance Report, describing the steps taken to achieve compliance with Section IX of the Settlement Agreement. The Court further ORDERS that an interim status conference be held on Tuesday, January 31, 2017, at 2:00 p.m. in Courtroom 13B for the Parties to report on the status of any proposed changes to the Settlement Agreement and the appropriate steps to

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be taken by the Court when considering any such proposed changes, including the requirements of Paragraph 175 of the Settlement Agreement.
In Plaintiff’s Post Status Conference Status Report, the United States further proposes a specific agenda for the Third Annual Status Conference, which is set for Wednesday, October 5, 2017, at 10:00 a.m. The Court will defer providing an agenda for the Third Annual Status Conference until approximately 30 to 60 days before that conference.
Finally, in Defendant City of Portland’s Post Status Conference Memorandum and the related Declaration of Tracy Reeve, the City comments on the non-sworn commentary offered by members of the public during the Second Annual Status Conference. First, the Court observes that it was the City that originally objected to the Court holding an evidentiary hearing as part of its continuing jurisdiction and oversight over this matter. The Parties then requested, and the Court agreed, that the Court will hold status conferences, rather than evidentiary hearings. Second, the Court has the inherent authority to hear comments at a status conference from any amicus curiae that the Court considers appropriate. Third, the Court understands and appreciates the concerns expressed by the City regarding the content and tenor or tone of several of the comments voiced during the Second Annual Status Conference by some of the amici curiae. The Court will appropriately address these issues in open Court.
CONCLUSION The Court ORDERS the City to file not later than December 2, 2016, a written Supplemental Compliance Report, describing the steps taken to achieve compliance with Section IX of the Settlement Agreement. The Court further ORDERS that an interim
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status conference be held on Tuesday, January 31, 2017, at 2:00 p.m. in Courtroom 13B for the Parties to report on the status of any proposed changes to the Settlement Agreement and the appropriate steps to be taken by the Court when considering any such proposed changes.
IT IS SO ORDERED. DATED this 10th day of November, 2016.
/s/ Michael H. Simon Michael H. Simon United States District Judge

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TRACY REEVE, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov MARK AMBERG, OSB# 922133 Chief Deputy City Attorney Email: mark.amberg@portlandoregon.gov ELLEN OSOINACH, OSB# 024985 Senior Deputy City Attorney Email: ellen.osoinach@portlandoregon.gov JUDY PROSPER, OSB# 152214 Deputy City Attorney Email: judy.prosper@portlandoregon.gov Office of City Attorney 1221 SW 4th Avenue, Suite 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089
Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, PLAINTIFF,
v. CITY OF PORTLAND,
DEFENDANT.

Case No. 3:12-cv-02265-SI
DEFENDANT CITY OF PORTLAND’S SUPPLEMENTAL MEMORANDUM

The City of Portland (City) submits this Supplemental Memorandum in compliance with the Court’s Order of November 11, 2016.1 ECF 140. This Supplemental Memorandum outlines the steps the City has taken since the Second Annual Status Conference on October 25, 2016, to develop proposed amendments to Section IX of the Settlement Agreement, as well as the steps the City proposes to take. The City and the United States have both indicated that amendments are necessary for the City to achieve compliance with this section.

1 The City maintains its objections (Docket No. 138) to the Court’s Order (Docket No. 140), entered following the October 25, 2016 Annual Status Conference, and notwithstanding submission of this Supplemental Memorandum, reserves its right to seek appellate review of that Order.

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As it reported at the October 25, 2016 Second Annual Status Conference, the City engaged multiple constituencies during the Community Oversight Advisory Board’s (COAB) 60-day hiatus.2 The City interviewed almost all current and former COAB members, as well as mental health peer support advocates, mental health providers and members of other police accountability boards. In addition, the City circulated a survey and collated the feedback.
Also during the hiatus, representatives from the Mayor’s Office and City Attorney’s Office met on three separate occasions with representatives of amicus Albina Ministerial Alliance Coalition for Justice and Police Reform to solicit their advice about options for successful community engagement as contemplated by the Settlement Agreement. On October 14 and October 21, 2016, the City hosted meetings of intervenor Portland Police Association, amicus, and the United States. The group offered differing opinions about a draft conceptual framework that the City proposed.
During these discussions, the City, amicus and intervenor agreed it would be most productive to conduct further discussions with the assistance of a professional facilitator. It was agreed that the participants would propose a facilitator by October 27, 2016. On November 2, 2016, intervenor suggested a candidate. Because the City had not received a candidate from amicus by November 14, 2016, despite several requests that one be provided, the City suggested a candidate. On November 23, 2016, amicus rejected the City’s candidate and suggested two others. Amicus represented to the City that these two candidates emerged as a result of private meetings between amicus and intervenor. On November 28, 2016, the City notified amicus it would agree to use one or the other of these two facilitators.
The City has contacted both candidates and each has agreed to provide a proposed work plan by December 9, 2016, for the City’s consideration. The City will select and engage one of these facilitators by the end of December 2016, if one of these facilitators agrees to contract with the City. The City will pay for the facilitation services. The City’s goal is for the facilitated discussions to be conducted and completed during January 2017.
2 The City and the United States agreed to a 60-day hiatus to the operation of the COAB commencing on August 19, 2016, and ending on October 20, 2016.

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Through the facilitated discussions, the City seeks input on the following topics:

selection process for members of the reconstituted body, function/scope of work, deliverables

and timelines. The City believes it would be beneficial for the United States to participate in the

facilitated discussions. The City’s proposed framework for discussion is a body that:

a. is significantly smaller than the 20 seats that made up the COAB;

b. is not a public body for purposes of Oregon public meetings law but holds periodic

public town hall meetings;

c. receives independent professional administrative and facilitation services paid for by

the City;

d. has a chair selected by the body from among its members;

e. is independent of the Compliance Officer and Community Liaison (COCL);

f. receives necessary training; and

g. is tasked with recommending systems for successful engagement between police and

the community with a particular emphasis on racial equity and mental health.

After the facilitated discussions in January 2017, the City intends to immediately engage

with the United States in the collaborative process required by paragraph 175 of the Settlement

Agreement to develop the necessary amendments to Section IX. The terms of all remaining

COAB members expire at the end of January 2017. The City’s goal is to reconstitute a body as

soon thereafter as possible.

Since the Second Annual Status Conference on October 25, 2016, the City has kept the

United States informed of the City’s progress via phone calls, written correspondence, and in-

person meetings with United States representatives.

Dated: December 2, 2016.

Respectfully submitted,

/s/ Tracy Reeve
TRACY REEVE, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov Of Attorneys for Defendant

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 11-o3f,1P6age 11 of 57

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U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE # 3:12−cv−02265−SI

TERMINATED

United States of America v. City of Portland Assigned to: Judge Michael H. Simon Case in other court: 9th Circuit Court of Appeals, 14−35903 Cause: 42:14141 Violent Crime Control and Law Enforcement Act of 1994
Plaintiff

Date Filed: 12/17/2012 Date Terminated: 09/29/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Adrian L. Brown US Attorney's Office District of Oregon 1000 S.W. Third Avenue Suite 600 Portland, OR 97204 503−727−1003 Fax: 503−727−1117 Email: adrian.brown@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Billy J. Williams United States Attorney's Office 1000 SW Third Avenue Suite 600 Portland, OR 97204 503−727−1108 Fax: 503−727−1117 Email: bill.williams@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Buehler United States Department of Justice Civil Rights Division 950 Pennsylvania Ave, NW−PHB Washington, DC 20530 202−353−1100 Fax: 202−514−0212 Email: brian.buehler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Knight U.S. Department of Justice Disability Rights Section 950 Pennsylvania Ave, NW − NYA Washington, DC 20530 202−616−2110 Fax: 202−307−1197 Email: david.knight@usdoj.gov TERMINATED: 10/15/2015

Janice E. Hebert U.S. Attorney's Office 1000 SW Third Avenue Suite 600 Portland, OR 97204−2902 503−727−1011 Fax: 503−727−1117

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 21-o3f,1P6age 12 of 57

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Email: Janice.Hebert@usdoj.gov ATTORNEY TO BE NOTICED

Jared Hager U.S. Attorney's Office District of Oregon, Civil Division 1000 SW 3rd Ave Suite 600 Portland, OR 97204 503−727−1120 Fax: 503−727−1117 Email: jared.hager@usdoj.gov ATTORNEY TO BE NOTICED

Laura L. Coon USDOJ Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−514−1089 Fax: 202−514−0212 Email: laura.coon@usdoj.gov ATTORNEY TO BE NOTICED

Michelle A. Jones Department of Justice 605 D St. NW Washington, DC 20004 202−305−3642 Fax: 202−514−0212 Email: michelle.jones2@usdoj.gov TERMINATED: 10/26/2015

R. Jonas Alexander Geissler U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, DC 20530 202−353−8866 Fax: 202−514−6903 Email: jonas.geissler@usdoj.gov ATTORNEY TO BE NOTICED

Thomas J. Morse U.S. Deptartment of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−305−4039 Fax: 202−514−6903 Email: jack.morse@usdoj.gov TERMINATED: 07/30/2015

V. Defendant City of Portland

represented by Ellen C. Osoinach City of Portland Office of the City Attorney 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503−823−4047 Fax: (503) 823−3089

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 31-o3f,1P6age 13 of 57

ER-310

Email: ellen.osoinach@portlandoregon.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L. Woboril City Attorney's Office 1221 S.W. Fourth Avenue Room 430 Portland, OR 97204 (503) 823−4047 Fax: (503) 823−3089 Email: david.woboril@portlandoregon.gov TERMINATED: 10/14/2015

James H. Van Dyke City Attorney's Office 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503−823−4047 Fax: (503)823−3089 Email: jim.vandyke@portlandoregon.gov TERMINATED: 08/29/2014

Judy S. Prosper Office of City Attorney 1221 SW 4th Avenue, Rm 430 Portland, OR 97204 503−823−4047 Fax: 503−823−3089 Email: judy.prosper@portlandoregon.gov ATTORNEY TO BE NOTICED

Mark P. Amberg City of Portland Office of City Attorney 1221 SW Fourth Avenue Room 430 Portland, OR 97204 503−823−4047 Fax: 503−823−3089 Email: mark.amberg@portlandoregon.gov ATTORNEY TO BE NOTICED

Tracy Pool Reeve City of Portland City Attorney's Office 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503−823−4055 Fax: 503−823−3089 Email: Tracy.Reeve@portlandoregon.gov ATTORNEY TO BE NOTICED

V. Intervenor Defendant Portland Police Association

represented by Anil Karia Public Safety Labor Group 3021 NE Broadway Portland, OR 97232 (866) 486−5556, Ex. 701 Fax: (866) 401−2201

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 41-o3f,1P6age 14 of 57

Email: anil@pslglawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Albina Ministerial Alliance Coalition for Justice and Police Reform

represented by Kristen A. Chambers Kirklin Thompson &Pope LLP 1000 SW Broadway Suite 1616 Portland, OR 97205 503−222−1640 Fax: 503−227−5251 Email: kristen@ktp−law.com ATTORNEY TO BE NOTICED

Shauna M. Curphey Curphey &Badger. P.A. 520 SW 6th Ave., Suite 1040 Portland, OR 97204 5035412848 Email: scurphey@curpheylaw.com ATTORNEY TO BE NOTICED

Jessica Ashlee Albies Creighton & Rose, PC Powers Building 65 SW Yamhill Street, Suite 300 Portland, OR 97204 503−221−1792 Fax: 503−223−1516 Email: ashlee@civilrightspdx.com ATTORNEY TO BE NOTICED

ER-311

Date Filed 12/17/2012 12/17/2012
12/17/2012 12/17/2012 12/17/2012 12/17/2012 12/18/2012

# Docket Text
1 Complaint. (fee exempt status selected (AUSA)) Jury Trial Requested: No. Filed by United States of America against The City of Portland (Attachments: # 1 Civil Cover Sheet). (Brown, Adrian) (Entered: 12/17/2012)
2 Notice of Case Assignment to Judge Michael H. Simon and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 4/16/2013. Joint Alternate Dispute Resolution Report is due by 5/16/2013. Pretrial Order is due by 5/16/2013. Ordered by Judge Michael H. Simon. (cib) (Entered: 12/17/2012)
3 Joint Motion for Settlement Agreement and Conditional Dismissal of Action. Filed by United States of America. (Attachments: # 1 Proposed Order) (Brown, Adrian) (Entered: 12/17/2012)
4 Memorandum in Support of Joint Motion to Enter Settlement Agreement and Conditionally Dismiss Action. Filed by United States of America. (Related document(s): Motion for Settlement 3 .) (Attachments: # 1 Attachment 1) (Brown, Adrian) (Entered: 12/17/2012)
5 Declaration of Billy J. Williams . Filed by United States of America. (Related document(s): Motion for Settlement 3 .) (Brown, Adrian) (Entered: 12/17/2012)
6 Declaration of Clay Roberts Neal . Filed by United States of America. (Related document(s): Motion for Settlement 3 .) (Attachments: # 1 Attachment 1) (Brown, Adrian) (Entered: 12/17/2012)
7 Motion to Intervene . Oral Argument requested. Filed by Portland Police Association. (Karia, Anil) (Entered: 12/18/2012)

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 51-o3f,1P6age 15 of 57

ER-312

12/18/2012

8 Memorandum in Support of Motion to Intervene. Filed by Portland Police Association. (Related document(s): Motion to intervene 7 .) (Karia, Anil) (Entered: 12/18/2012)

12/18/2012

9 Declaration of Anil S. Karia in Support of Motion to Intervene. Filed by Portland Police Association. (Related document(s): Motion to intervene 7 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Karia, Anil) (Entered: 12/18/2012)

12/18/2012

10 Order − Setting a Status Conference for 12/21/2012 at 09:30AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/18/2012)

12/18/2012

11 Notice of Appearance of Ellen C. Osoinach appearing on behalf of City of Portland titled as "Defendant City of Portland's Notice of Appearance" Filed by on behalf of City of Portland (Osoinach, Ellen) (Entered: 12/18/2012)

12/19/2012

12 Unopposed Motion for Extension of Time to File a Response/Reply to PPA's Motion to Intervene (ECF #7) to Motion to Intervene 7 . Filed by United States of America. (Brown, Adrian) (Entered: 12/19/2012)

12/19/2012

13 Declaration of Adrian Brown in Support of Unopposed Motion for Extension of Time to Respond to PPA's Motion to Intervene. Filed by United States of America. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 12 .) (Brown, Adrian) (Entered: 12/19/2012)

12/19/2012

14 ORDER − Granting Plaintiff's Unopposed Motion for Extension of Time to File a Response to PPA's Motion to Intervene 12 . Response is due by 1/22/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/19/2012)

12/20/2012

15 Unopposed Motion for Extension of Time to Respond to Portland Police Association's Motion to Intervene. Filed by City of Portland. (Osoinach, Ellen) (Entered: 12/20/2012)

12/20/2012

16 Affidavit in Support of Motion for Extension of Time. Filed by City of Portland. (Related document(s): Motion for Extension of Time 15 .) (Osoinach, Ellen) (Entered: 12/20/2012)

12/20/2012

17 ORDER − Granting Defendant's Motion for Extension of Time to Respond to Portland Police Association's Motion to Intervene 15 . Response is due by 1/22/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/20/2012)

12/21/2012

18 MINUTES of Status Conference: Order − The Court adopts the following schedule: (1) January 8, 2013: Any motions to intervene will be deemed timely if filed by this date; (2) January 22, 2013: (a) All responses due to motions to intervene; and (b) All parties and any other interested persons may file written comments and suggestions regarding the notice, timing, conduct, and other processes of the anticipated Fairness Hearing; (3) February 5, 2013: All replies due in support of motions to intervene; and (4) February 19, 2013: HEARING scheduled at 9:00 a.m. in Courtroom 13B to address all pending motions to intervene and to discuss all procedures relating to the anticipated Fairness Hearing. Adrian L. Brown, Amanda Marshal, Michelle A. Jones and Laura Coon present as counsel for plaintiff(s). Ellen Osoinach, James VanDyke and Anil Karia present as counsel for defendant(s). Court Reporter: Jill Erwin. Judge Michael H. Simon presiding. (mja) (Entered: 12/21/2012)

01/08/2013

19 Motion to Intervene . Oral Argument requested. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Attachments: # 1 Attachment 1) (Albies, Jessica) (Entered: 01/08/2013)

01/08/2013

20 Memorandum in Support of AMA Coalition's Motion to Intervene. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Related document(s): Motion to intervene 19 .) (Albies, Jessica) (Entered: 01/08/2013)

01/08/2013

21 Declaration of Doctor LeRoy Haynes, Jr. in Support of The AMA Coalition's Motion to Intervene. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Related document(s): Motion to intervene 19 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11) (Albies,

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 61-o3f,1P6age 16 of 57

ER-313

01/22/2013 01/22/2013 01/22/2013 01/22/2013 01/22/2013 01/22/2013 02/05/2013 02/05/2013 02/05/2013 02/14/2013 02/19/2013
02/19/2013
02/26/2013

Jessica) (Entered: 01/08/2013)
22 Memorandum in Support Regarding Fairness Hearing. Filed by Portland Police Association. (Karia, Anil) (Entered: 01/22/2013)
23 Memorandum Suggesting Processes for Anticipated Fairness Hearing. Filed by City of Portland. (Osoinach, Ellen) (Entered: 01/22/2013)
24 Unopposed Motion for Order To Set Procedures for Fairness Hearing. Filed by United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit Public Comment Form) (Brown, Adrian) (Entered: 01/22/2013)
25 Response in Opposition to Motion to Intervene 7 , Motion to Intervene 19 Oral Argument requested. Filed by United States of America. (Attachments: # 1 Attachment Notice Letter, # 2 Attachment Findings Letter, # 3 Attachment Statement of Intent) (Brown, Adrian) (Entered: 01/22/2013)
26 Response in Support of Conditional Grant to Motion to Intervene 7 . Filed by City of Portland. (Osoinach, Ellen) (Entered: 01/22/2013)
27 Response in Support of Conditional Grant to Motion to Intervene 19 . Filed by City of Portland. (Osoinach, Ellen) (Entered: 01/22/2013)
28 Reply to Defendant's and Plaintiff's Opposition to Motion to Intervene 19 . Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 02/05/2013)
29 Reply In Support to Motion to Intervene 7 . Filed by Portland Police Association. (Karia, Anil) (Entered: 02/05/2013)
30 Supplemental Declaration of Anil S. Karia In Support of Motion to Intervene. Filed by Portland Police Association. (Related document(s): Reply to Motion 29 .) (Attachments: # 1 Exhibit A) (Karia, Anil) (Entered: 02/05/2013)
31 Notice of Appearance of R. Jonas Alexander Geissler appearing on behalf of United States of America Filed by on behalf of United States of America (Geissler, R. Jonas) (Entered: 02/14/2013)
32 Opinion and Order − Portland Police Associations Motion to Intervene 7 is GRANTED in PART and DEFERRED IN PART. The PPA is permitted to intervene at this time only in the remedy phase of this litigation, with leave to renew its Motion to Intervene in a liability phase if such a phase becomes necessary. The AMA Coalitions Motion to Intervene 19 is DENIED in PART and DEFERRED in PART, with leave to renew its Motion to Intervene (and file an amended complaint in intervention) in a liability phase if such a phase becomes necessary. Although the AMA Coalition may not formally intervene in the "remedy phase, the Court GRANTS the AMA Coalition enhanced amicus curiae status as set forth in the Opinion and Order. The Court further Orders that the United States, the City, the PPA, and the AMA Coalition provide the several reports and briefing, if necessary, as directed by this Opinion and Order. The next status conference will be held on Tuesday, March 5, 2013 at 12:15. Signed on 2/19/13 by Judge Michael H. Simon. (mja) (Entered: 02/19/2013)
33 MINUTES of Status Conference: Status of case discussed as stated on the record. See Opinion and Order 32 . Adrian Brown, R. Jonas Alexander Geissler and Billy Williams present as counsel for Plaintiff United States. Anil Karia present as counsel for Defendant−Intervenor Portland Police Association. James Van Dyke and Ellen Osoinach present as counsel for Defendant City of Portland. Jessica Ashlee Albies and Shauna M. Curphey present as counsel for amicus AMA Coalition. Court Reporter: Jill Erwin. Judge Michael H. Simon presiding. (mja) Modified on 2/21/2013 to correct party type(mja). (Entered: 02/20/2013)
34 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on February 19, 2013, before Judge Michael H. Simon, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 71-o3f,1P6age 17 of 57

ER-314

03/05/2013
04/08/2013 04/09/2013 04/10/2013 04/22/2013 04/23/2013 06/07/2013 06/10/2013
06/21/2013 07/18/2013
08/20/2013

Intent to Redact Transcript is due by 3/8/2013. Redaction Request due 3/22/2013. Redacted Transcript Deadline set for 4/1/2013. Release of Transcript Restriction set for 5/31/2013. (Erwin, Jill) (Entered: 02/26/2013)
35 MINUTES of Status Conference: Status Conference held. The parties reported that they have agreed on the selection of the Hon. Paul J. De Muniz, former Chief Justice of the Oregon Supreme Court, to serve as their mediator. The Court approves the parties' proposed mediation agreement and directs the parties to file a Joint Status Report not later than April 8, 2013. Adrian Brown, R. Jonas Alexander Geissler, Michelle Jones, Laura Coon and Billy Williams present as counsel for Plaintiff United States. Anil Karia present as counsel for Defendant−Intervenor Portland Police Association. Ellen Osoinach present as counsel for Defendant City of Portland. Jessica Ashlee Albies and Shauna M. Curphey present as counsel for amicus AMA Coalition. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 03/05/2013)
36 Joint Status Report . Filed by All Parties. (Brown, Adrian) (Entered: 04/08/2013)
37 Order − As requested by the parties in the Joint Status Report 36 , the filing of another Joint Status Report is due by 4/22/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/09/2013)
38 Notice of Appearance Filed by United States of America (Morse, Thomas) (Entered: 04/10/2013)
39 Joint Status Report . Filed by All Parties. (Brown, Adrian) (Entered: 04/22/2013)
40 Order − As requested by the parties in the Joint Status Report 39 , the Court is extending the deadline for the completion of mediation to 6/7/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/23/2013)
41 Joint Status Report . Filed by All Parties. (Brown, Adrian) (Entered: 06/07/2013)
42 ORDER − As requested by the parties in their Joint Status Report dated June 7, 2013 41 , the Court shall hold a status conference on Thursday, July 18, 2013 at 10:00 a.m. in Courtroom 13B to set a briefing schedule for the matters discussed in the Court's Order of February 19, 2013 32 ; in addition, the parties' request to file a supplemental report not later than June 21, 2013, regarding the resolution of the issues raised by the AMA is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/10/2013)
43 Joint Status Report . Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform, City of Portland, United States of America. (Brown, Adrian) (Entered: 06/21/2013)
44 MINUTES of Proceedings: Status Conference held. Counsel advised the Court that an agreement has been reached between USA, City of Portland and AMA Coalition. The Court addressed with the parties factors and issues involved in determining the procedural course of action to follow in resolving this action. All parties agree that trial shall be bifurcated as to the issues of liability and remedies. The Court identified specific issues the parties are to address in additional briefs, which shall be filed as follows: Opening briefs are due by October 21, 2013 (not to exceed 35 pages). Response briefs are due November 4, 2013 (not to exceed 35 pages). Reply briefs are due November 18, 2013 (not to exceed 10 pages). Oral argument is set for December 3, 2013 at 10:00 a.m., in Courtroom #13B. If not otherwise waived, the parties may postpone Rule 26(a) disclosures. Adrian Brown; Bill Williams; R. Jonas Geissler (by phone); Jack Morse (by phone), and Laura Coon (by phone) present as counsel for plaintiff(s). Ellen Osoinach and David Woboril present as counsel for defendant(s). Anil Karia present as counsel for Intervenor Portland Police Association. Counsel Shauna M. Curphey and J. Ashley Albies present as counsel for Amicus Albina Ministeral All. Court Reporter: Jill Erwin. Judge Michael H. Simon presiding. (kb) (Entered: 07/18/2013)
45 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on July 18, 2013, before Judge Michael H. Simon, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 81-o3f,1P6age 18 of 57

ER-315

10/17/2013 10/18/2013
11/08/2013 11/12/2013 12/02/2013 12/18/2013 12/19/2013
12/19/2013 12/23/2013 12/30/2013 02/05/2014 02/10/2014

for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/30/2013. Redaction Request due 9/13/2013. Redacted Transcript Deadline set for 9/23/2013. Release of Transcript Restriction set for 11/21/2013. (Erwin, Jill) (Entered: 08/20/2013)
46 Joint Motion for Extension of Time − Continuance of Briefing Schedule. Filed by United States of America. (Brown, Adrian) (Entered: 10/17/2013)
47 ORDER − Granting the Parties' Joint Motion for Extension of Time − Continuance of Briefing Schedule 46 as follows: Opening Briefs are due by 11/12/2013. Responses are due by 11/25/2013. Replies are due by 12/2/2013. Resetting the Oral Argument Hearing from 12/3/2013 to 12/17/2013 at 10:00AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 10/18/2013)
48 Joint Status Report and Request for Stay of Deadlines. Filed by United States of America. (Brown, Adrian) (Entered: 11/08/2013)
49 Order − Pursuant to the joint request of all the parties, all current case deadlines are stayed. The parties shall confer on future deadlines in advance of the 12/17/2013 status conference. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/12/2013)
50 Scheduling Order by Judge Michael H. Simon. Order − At the City of Portland's request, the Court is resetting the Status Conference from 12/17/2013 to 12/19/2013 at 01:30PM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/02/2013)
51 Unopposed Motion for Order to Set Procedures for Fairness Hearing (Amended). Filed by United States of America. (Attachments: # 1 Attachment Proposed Order and Exhibit A) (Brown, Adrian) (Entered: 12/18/2013)
52 MINUTES of Status Conference: Order − Status Conference held. The Court and the Parties discussed the procedures for a fairness hearing regarding the parties' jointly proposed Settlement Agreement. Order − A Fairness Hearing is set for 2/18/2014 at 09:00AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, Billy J. Williams and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Harry Auerbach and Mark Amburg present as counsel for the City of Portland. Anil Karia present as counsel for Portland Police Association. Shauna M. Curphey present as counsel for amicus party Albina Ministerial Alliance Coalition for Justice and Police Reform . Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 12/19/2013)
53 Order Setting Fairness Hearing and Procedures. Signed on 12/19/13 by Judge Michael H. Simon. (Attachments: # 1 Testimony Form, # 2 Notice of Fairness Hearing) (mja) (Entered: 12/19/2013)
54 Notice of Withdrawal of Objections to Proposed Settlement Agreement Filed by Portland Police Association (Attachments: # 1 Exhibit A) (Karia, Anil) (Entered: 12/23/2013)
55 Amicus Notice of Collaborative Agreement Regarding the Proposed Settlement Agreement Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Attachments: # 1 Exhibit A) (Albies, Jessica) (Entered: 12/30/2013)
56 Scheduling Order by Judge Michael H. Simon. Order − Setting a Telephone Status Conference for 2/10/2014 at 09:00AM. The Court will provide the parties with a call−in number prior to the conference by separate email. Ordered by Judge Michael H. Simon. (mja) (Entered: 02/05/2014)
57 MINUTES of Telephone Conference: Order − Modifying deadline set in 53 for United States to provide pre−hearing submission from February 11 to February 13 at 9:00AM; Granting a continuing objection by all four parties to any evidence presented at the Fairness Hearing not in conformance with Federal Rules of Evidence (including, but not limited to, relevance, cumulative testimony, inadmissible hearsay, lack of personal knowledge or other foundation,

Case 3:12-cvC-a0s2e2:6156-S-7I38A78s,o1f21/029/0/290/21061,6ID0:11:10222P7M89P4S, TDktEPnatgrye: 91-o3f,1P6age 19 of 57

ER-316

02/13/2014 02/18/2014
02/19/2014
02/28/2014 03/05/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014

argumentativeness, and inadmissibility of compromise offers and negotiations); Discussing other Fairness Hearing logistics and procedures as stated on the record. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, Anil Karria, Shauna M. Curpney and Jessica Ashlee Albies present as counsel for defendant(s). Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 02/10/2014)
58 Notice of Summaries of Written Submissions for Fairness Hearing in Compliance with Court's Order (ECF #53) Filed by All Plaintiffs (Attachments: # 1 Exhibit A) (Brown, Adrian) (Entered: 02/13/2014)
59 MINUTES of Fairness Hearing before Judge Michael H. Simon. Testimony from the public and parties given. Court is in recess until 2/19/2014 at 08:30AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Anil Karia, Shauna M. Curphey and Jessica Ashlee Albies present as counsel for defendant, intervenor defendant and amicus party. Court Reporter: Jill Erwin and Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 02/18/2014)
60 MINUTES of Fairness Hearing before Judge Michael H. Simon : Testimony from the public and parties given and the record was closed for public oral testimony. The record shall be held open one week, until Wednesday, February 26, 2014, for additional written public testimony. Any person or organization wishing to provide written testimony may submit it by delivering or mailing the testimony to the Clerk of the Court, Civil Intake, Fairness Hearing Comments, United States District Court, District of Oregon, 1000 SW Third Avenue, Suite 700, Portland, OR 97204, or emailing to mary_austad@ord.uscourts.gov. The Court anticipates asking the Parties written questions by February 28, 2014, and will file them in the Court record. The Parties shall have until March 11, 2014, to submit post−hearing memoranda. A final hearing is scheduled for March 24, 2014, at 9:00 a.m. in Courtroom 13B. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Anil Karia, Shauna M. Curphey and Jessica Ashlee Albies present as counsel for defendant, intervenor defendant and amicus party. Court Reporter: Jill Erwin and Dennis Apodaca. Judge Michael H. Simon presiding. (mja) Modified on 2/20/2014 to correct email (mja). (Entered: 02/19/2014)
61 Post−Hearing Questions. The Court presents the attached questions to the four parties and requests that any responses be filed not later than 3/11/2014. Signed on 2/28/2014 by Judge Michael H. Simon. (sm) (Entered: 02/28/2014)
62 Notice of Appearance of David W. Knight appearing on behalf of United States of America Filed by on behalf of United States of America (Knight, David) (Entered: 03/05/2014)
63 Memorandum in Support of Acceptance of Settlement Agreement and Response to Questions from the Court. Filed by United States of America. (Related document(s): Order 61 .) (Brown, Adrian) (Entered: 03/11/2014)
64 Memorandum in Support OF ENTRY OF PROPOSED SETTLEMENT AGREEMENT. Filed by Portland Police Association. (Karia, Anil) (Entered: 03/11/2014)
65 Declaration of Anil S. Karia IN SUPPORT OF ENTRY OF PROPOSED SETTLEMENT AGREEMENT. Filed by Portland Police Association. (Attachments: # 1 Exhibit A) (Karia, Anil) (Entered: 03/11/2014)
66 Brief in Response to Questions from the Court. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Related document(s): Order 61 .) (Albies, Jessica) (Entered: 03/11/2014)
67 Brief "City of Portland's Post Hearing Brief". Filed by City of Portland. (Related document(s): Order 61 .) (Osoinach, Ellen) (Entered: 03/11/2014)

Case 3:12-cvC-0a2s2e6: 51-6S-I738A7s8,o1f 21/20/90/92/021061,6ID01: :11022P2M78P94S,TDktPEangtrey:110-3o,f P16age 20 of 57

ER-317

03/24/2014

68 MINUTES of Proceedings before Judge Michael H. Simon. Order − The parties have until 4/14/2014 to submit additional briefing. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Anil Karia, Shauna M. Curpney and Jessica Ashlee Albies present as counsel for defendant(s). Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 03/24/2014)

04/14/2014

69 Order − At the Parties' request, the Court is extending the deadline for the filing of additional briefing from 4/14/2014 to 4/21/2014. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/14/2014)

04/21/2014

70 Scheduling Order by Judge Michael H. Simon. Order − At the Parties' request, the Court is extending the deadline for the filing of additional briefing from 4/21/2014 to 4/28/2014. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/21/2014)

04/25/2014

71 Scheduling Order by Judge Michael H. Simon. Order − At the parties' request, the Court is setting a Telephone Status Conference for 4/28/2014 at 01:30PM. The Court will provide the parties with a call−in number by separate email. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/25/2014)

04/28/2014

72 Scheduling Order by Judge Michael H. Simon. Order − Due to a conflict in the court reporter's schedule, the Court is resetting the TIME set for the Telephone Conference from 4/28/2014 at 1:30PM to 4/28/2014 at 02:00PM. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/28/2014)

04/28/2014

73 MINUTES of Telephone Status Conference: Order − At the request of the parties, a further Telephone Status Conference is set for 5/8/2014 at 01:30PM. The Court will provide the parties with a call−in number prior to the conference. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, David Knight, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen Osoinach, David Worbil present as counsel for Defendant City of Portland. Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Albies and Shauna Curphey present as counsel for Amicus party Albina Ministerial Alliance Coalition for Justice and Police Reform. Court Reporter: Bridget Montero. Judge Michael H. Simon presiding. (mja) (Entered: 04/28/2014)

05/08/2014

74 Scheduling Order by Judge Michael H. Simon. Order − At the parties' request, the Court is resetting the Telephone Status Conference from 5/8/2014 to 5/30/2014 at 01:30PM. The Court will provide the parties with a call−in number prior to the conference. Ordered by Judge Michael H. Simon. (mja) (Entered: 05/08/2014)

05/20/2014

75 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephone Conference held on April 18, 2014 before Judge Michael H. Simon, Court Reporter Bridget Montero, telephone number 714−873−7248. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/30/2014. Redaction Request due 6/13/2014. Redacted Transcript Deadline set for 6/23/2014. Release of Transcript Restriction set for 8/21/2014. (sm) (Entered: 05/20/2014)

05/30/2014

76 MINUTES of Telephone Conference: Order − The parties have until 6/24/2014 to submit additional briefing. Responses are due by 7/2/2014. Amanda Marshall, Michelle A. Jones, R. Jonas Alexander Geissler and David W. Knight present as counsel for plaintiff(s). Ellen C. Osoinach and David L. Woberil present as counsel for defendant(s). Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Albies and Shauna Curphey present as counsel for Amicus party Albina Ministerial Alliance Coalition for Justice and Police Reform. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 05/30/2014)

06/20/2014

77 Joint Motion to Enter Settlement Agreement and Conditional Dismissal of Action. Filed by City of Portland. (Attachments: # 1 Exhibit A) (Osoinach, Ellen) (Entered: 06/20/2014)

06/20/2014

78 ORDER − On May 30, 2014, the Court granted the parties' request to have until June 24, 2014, to submit additional briefing on the issue of whether the Court should grant the original Joint Motion for Settlement 3 , with responses due by July

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06/20/2014 06/24/2014 06/24/2014 06/24/2014 07/02/2014 07/02/2014 07/02/2014 08/29/2014 10/27/2014 10/28/2014 11/26/2014 12/01/2014

2, 2014. 76 . On June 20, 2014, Plaintiff United States, Defendant City of Portland, and Intervenor−Defendant Portland Police Association filed a Joint Motion to Enter Settlement Agreement, which contains a modified condition of dismissal. 77 The original briefing schedule remains. Any Party, including Plaintiff United States, Defendant City of Portland, Intervenor−Defendant Portland Police Association, or Enhanced Amicus Albina Ministerial Alliance Coalition for Justice and Police Reform, may submit additional briefing by June 24, 2014, on whether the Court should grant or deny the original Joint Motion for Settlement 3 or the modified Joint Motion 77 , with responses due by July 2, 2014. There shall be no further extensions of the briefing schedule. The Court will take the matter under advisement on July 3, 2014. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/20/2014)
79 Brief in Support of the Court's Proposed Periodic Hearings. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 06/20/2014)
80 Memorandum in Support of Agreed Order Entering Settlement Agreement Or, Alternatively, For Entry of Settlement Agreement and Separate Order Requiring Status Conferences. Filed by United States of America. (Knight, David) (Entered: 06/24/2014)
81 Memorandum in Support OF JOINT MOTION TO ENTER SETTLEMENT AGREEMENT AND CONDITIONAL DISMISSAL OF ACTION. Filed by Portland Police Association. (Related document(s): Motion − Miscellaneous 77 .) (Karia, Anil) (Entered: 06/24/2014)
82 Memorandum in Support OF JOINT MOTION TO ENTER SETTLEMENT AGREEMENT AND CONDITIONALLY DISMISS ACTION. Filed by City of Portland. (Related document(s): Motion − Miscellaneous 77 .) (Attachments: # 1 Exhibit 1) (Osoinach, Ellen) (Entered: 06/24/2014)
83 Response to the City of Portland's Memorandum in Support of Joint Motion to Enter Settlement Agreement and Conditionally Dismiss Action. Filed by United States of America. (Related document(s): Memorandum in Support of Motion 82 .) (Knight, David) (Entered: 07/02/2014)
84 Brief in Support of Entry of Settlement Agreement and Separate Order Requiring Periodic Changes. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 07/02/2014)
85 Response to Joint Motion to Enter Settlement Agreement and Conditional Dismissal of Action 77 . Filed by City of Portland. (Attachments: # 1 Exhibit 1−10) (Osoinach, Ellen) (Entered: 07/02/2014)
86 ORDER − The Parties' Joint Motion to Enter Settlement Agreement (ECF No. 3 ) and alternative Joint Motion to Enter Settlement Agreement (ECF No. 77 ) are GRANTED IN PART AND DENIED IN PART, as set forth in this Order. Signed on 8/29/2014 by Judge Michael H. Simon. (mja) (Entered: 08/29/2014)
87 Notice of Appeal to the 9th Circuit from Order on Motion for Settlement, Order on Motion − Miscellaneous,, 86 Filing fee $505 collected; Agency Tracking ID 0979−3880756: . Filed by City of Portland. (Attachments: # 1 Attachment Representation Statement) (Osoinach, Ellen) (Entered: 10/27/2014)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 87 . Case Appealed to 9th Circuit Court of Appeals Case Number 14−35903 assigned. (dsg) (Entered: 10/28/2014)
88 Transcript Designation and Order Form before Judge Simon. Court Reporter: Dennis Apodaca. regarding Notice of Appeal, 87 . Filed by City of Portland. Transcript is due by 1/2/2015. (Attachments: # 1 Attachment Transcripts Requested) (Osoinach, Ellen) (Entered: 11/26/2014)
89 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Continued Fairness Hearing held on March 24, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court

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12/30/2014 12/30/2014 12/30/2014 12/30/2014 12/30/2014 12/30/2014

Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/11/2014. Redaction Request due 12/29/2014. Redacted Transcript Deadline set for 1/5/2015. Release of Transcript Restriction set for 3/5/2015. (Apodaca, Dennis) (Entered: 12/01/2014)
90 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on March 5, 2013 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
91 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on December 19, 2013 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
92 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on February 10, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
93 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on March 24, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
94 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on May 30, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
95 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on December 21, 2012 before Judge Michael H. Simon, Court Reporter Jill Erwin, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)

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07/10/2015

96 (VACATED See Dkt # 97 ) Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference. Signed on 7/10/2015 by Judge Michael H. Simon.

07/20/2015
07/30/2015 07/30/2015 07/30/2015 07/30/2015 08/20/2015
08/20/2015 09/21/2015 09/29/2015 10/07/2015 10/13/2015 10/13/2015

ORDER − By letter dated June 16, 2015, the United States, the City of Portland, the Portland Police Association, and the Albina Ministerial Alliance Coalition for Justice and Police Reform (collectively, the "Parties") requested the District Court to indicate its approval of the Parties' jointly proposed Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference. After reviewing the Parties' joint proposal, the Court indicates its approval. Further, because the Court has retained jurisdiction over this matter, the Court has signed the proposed Amended Order and directs that it be entered as part of the record in this case. Judge Michael H. Simon (mja) Modified on 7/20/2015 pursuant to Order Dkt # 97 (mja). (Entered: 07/10/2015)
97 ORDER − At the request of the Circuit Mediator and the Parties, the Court hereby VACATES its Amended Order Entering Settlement Agreement 96 , entered on July 10, 2015. If and when this case is remanded to the Court by the Ninth Circuit without further directions, the Court intends to re−sign and re−enter this Order at that time at the request of the Parties. See Fed. R. App. P. 12.1. Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/20/2015)
98 Order from USCA for the 9th Circuit, re Notice of Appeal 87 . The parties joint motion for remand is granted. This appeal is remanded to the district court for the limited purpose of adopting and entering the parties proposed Amended Order Entering Settlement Agreement. REMANDED. (dsg) (Entered: 07/30/2015)
99 Amended Order Entering Settlement Agreement Conditionally Dismissing Litigation, and Setting First Annual Status Conference. Signed on 7/30/2015 by Judge Michael H. Simon. (mja) (Entered: 07/30/2015)
100 Motion to Substitute Attorney Brian Buehler for Thomas J. Morse. Filed by United States of America. (Buehler, Brian) (Entered: 07/30/2015)
101 ORDER − Granting Motion to Substitute Attorney 100 Brian Buehler in place of Thomas J. Morse for United States of America added as counsel of record. Signed on 7/30/2015 by Judge Michael H. Simon. (mja) (Entered: 07/30/2015)
102 Scheduling Order by Michael H. Simon. The Court has just realized that it inadvertently set the first annual status conference concerning the settlement implementation in this matter on the Jewish high holiday of Rosh Hashanah. Thus, the status conference is RESET from Monday, September 14, 2015, to Wednesday, September 16, 2015, still at 9:00 A.M. in Courtroom 13B. The Court apologizes for any inconvenience that the Court's error or this corrective change may cause. (bb) (Entered: 08/20/2015)
103 Scheduling Order by Judge Michael H. Simon. At the request of the parties, the Status Conference RESET for 09/16/2015 is VACATED and is RESET for 10/21/2015 at 02:00 PM in Portland Courtroom 13B before Judge Michael H. Simon. (bb) (Entered: 08/20/2015)
104 MANDATE of USCA for the 9th Circuit, USCA # 14−35903, re Notice of Appeal 87 . The parties joint motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. See Fed. R. App. P. 42(b). This order served on the district court shall act as and for the mandate of this court. (dsg) (Entered: 09/21/2015)
105 Notice of Periodic Compliance Assessment Report Filed by All Plaintiffs (Attachments: # 1 Attachment 1, # 2 Attachment 2) (Brown, Adrian) (Entered: 09/29/2015)
106 Letter from Sharon Maxwell. (mja) (Entered: 10/07/2015)
107 Order Setting Agenda for First Post−Approval Annual Status Conference. Signed on 10/13/2015 by Judge Michael H. Simon. (mja) (Entered: 10/13/2015)
108 Report "First Quarterly Report of the Compliance Office and Community Liaison". Filed by City of Portland. (Osoinach, Ellen) (Entered: 10/13/2015)

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10/14/2015

109 Status Report by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 10/14/2015)

10/14/2015

110 Notice of Attorney Withdrawal: Filed by City of Portland (Osoinach, Ellen) (Entered: 10/14/2015)

10/15/2015

111 Notice of Attorney Substitution:Attorney Jared D. Hager is substituted as counsel of record in place of Attorney David W. Knight Filed by United States of America (Hager, Jared) (Entered: 10/15/2015)

10/21/2015

112 Notice Defendant City of Portland's Notice of Compliance Reporting Filed by City of Portland (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Osoinach, Ellen) (Entered: 10/21/2015)

10/21/2015

113 MINUTES of First Annual Status Conference: Order − Setting the Second Annual Status Conference for 10/25/2016 at 01:00PM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, R. Jonas Alexander Geissler and Janice Hebert present as counsel for Plaintiff. Ellen C. Osoinach, Tracey Pool Reeve and Mark Amberg present as counsel for Defendant City of Portland. Anil S. Karia present as counsel for Intervenor−Defendant Portland Police Association. J. Ashlee Albies and Shauna M. Curphey present as counsel for Albina Ministerial Alliance Coalition for Justice and Police Reform. Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 10/21/2015)

10/26/2015

114 Notice of Attorney Withdrawal: of Michelle Jones. Filed by United States of America (Buehler, Brian) (Entered: 10/26/2015)

11/12/2015

115 Notice of Appearance of Janice E. Hebert appearing on behalf of United States of America Filed by on behalf of United States of America (Hebert, Janice) (Entered: 11/12/2015)

12/02/2015

116 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Hearing held on October 21, 2015 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/14/2015. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/4/2016. (Apodaca, Dennis) (Entered: 12/02/2015)

02/01/2016

117 Notice of Change of Address. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Albies, Jessica) (Entered: 02/01/2016)

03/01/2016

118 Notice of Change of Address. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Curphey, Shauna) (Entered: 03/01/2016)

04/02/2016

119 Notice of Change of Address. Filed by Portland Police Association (Karia, Anil) (Entered: 04/02/2016)

06/27/2016

120 Report COCL Semi−Annual Compliance Report Third and Fourth Quarters. Filed by City of Portland. (Osoinach, Ellen) (Main Document 120 replaced on 7/7/2016) (cw). (Entered: 06/27/2016)

07/07/2016

121 Clerk's Notice of Docket Correction regarding 120 Report. The PDF attached to this entry at filing was incorrect. The document was missing a case caption cover page. A corrected PDF has been uploaded and has replaced the incorrect attachment. The Notice of Electronic Filing will be regenerated to all parties. (cw) (Entered: 07/07/2016)

09/23/2016

122 Order − At the request of the Defendant, the Court is authorizing the services of two ASL Interpreters for the Status Conference set for 10/25/2016 at 1:00PM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 09/23/2016)

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10/18/2016

123 Notice of Appearance of Kristen A. Chambers appearing on behalf of Albina Ministerial Alliance Coalition for Justice and Police Reform Filed by on behalf of Albina Ministerial Alliance Coalition for Justice and Police Reform (Chambers, Kristen) (Entered: 10/18/2016)

10/18/2016

124 Notice of Second Periodic Compliance Assessment Report Filed by United States of America (Attachments: # 1 Attachment) (Brown, Adrian) (Entered: 10/18/2016)

10/19/2016

125 Notice of Appearance of Laura L. Coon appearing on behalf of United States of America Filed by on behalf of United States of America (Coon, Laura) (Entered: 10/19/2016)

10/19/2016

126 Status Report by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Attachments: # 1 Attachment 1) (Albies, Jessica) (Entered: 10/19/2016)

10/19/2016

127 Notice of Periodic Compliance Report. Filed by City of Portland (mja) (Entered: 10/19/2016)

10/19/2016

128 Memorandum for Second Status Conference. Filed by City of Portland. (mja) (Entered: 10/19/2016)

10/24/2016

129 Notice of Periodic Compliance Report Filed by City of Portland (Attachments: # 1 Exhibit Exhibit A − Cover Letter COCL Testimony for Status Conference, # 2 Exhibit Exhibit B − COCL Testimony for Status Conference) (Osoinach, Ellen) (Entered: 10/24/2016)

10/25/2016

130 MINUTES of Second Annual Status Conference: Order − Setting the Third Annual Status Conference for 10/5/2017 at 10:00AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, Billy J. Williams, Laura L. Coon and J. Jonas Alexander Geissler present as counsel for Plaintiff. Ellen C. Osoinach, Judy Prosper and Mark Amberg present as counsel for Defendant City of Portland. Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Ashlee Albies present as counsel for Amicus Party Albina Ministerial Alliance Coalition for Justice and Police Reform. Judge Michael H. Simon presiding. ASL Interpreters Andrea Medlock and Richard Hall. Oath administered in Court. (mja) (Entered: 10/26/2016)

10/26/2016 131 Submission by Dan Handelman. (mja) (Entered: 10/26/2016)

10/27/2016 132 Submission by Kathleen D. Saadat (mja) (Entered: 10/27/2016)

10/27/2016

133 Order − At the Second Annual Status Conference held on October 25, 2016, the Court received the City of Portland's Exhibit 101, entitled "De−Escalation, Compassion &Respect, A Trilogy". Exhibit 101 is a video on DVD. Ordered by Judge Michael H. Simon. (mja) (Entered: 10/27/2016)

11/02/2016

134 Notice of Appearance of Judy S. Prosper appearing on behalf of City of Portland Filed by on behalf of City of Portland (Prosper, Judy) (Entered: 11/02/2016)

11/02/2016

135 Notice of Appearance of Mark P. Amberg appearing on behalf of City of Portland Filed by on behalf of City of Portland (Amberg, Mark) (Entered: 11/02/2016)

11/02/2016

136 Status Report by United States of America. Filed by United States of America. (Brown, Adrian) (Entered: 11/02/2016)

11/03/2016

137 Notice of Appearance of Tracy Pool Reeve appearing on behalf of City of Portland Filed by on behalf of City of Portland (Reeve, Tracy) (Entered: 11/03/2016)

11/03/2016

138 Memorandum Titled as "Defendant City of Portland's Post Status Conference Memorandum". Filed by City of Portland. (Reeve, Tracy) (Entered: 11/03/2016)

11/03/2016

139 Declaration of Tracy Reeve. Filed by City of Portland. (Related document(s): Memorandum 138 .) (Attachments: # 1 Exhibit A) (Reeve, Tracy) (Entered: 11/03/2016)

11/10/2016

140 Order − The Court ORDERS the City to file not later than December 2, 2016, a written Supplemental Compliance Report, describing the steps taken to achieve compliance with Section IX of the Settlement Agreement. The Court further ORDERS that an interim status conference be held on Tuesday, January 31, 2017,

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12/02/2016

at 2:00 p.m. in Courtroom 13B for the Parties to report on the status of any proposed changes to the Settlement Agreement and the appropriate steps to be taken by the Court when considering any such proposed changes. Signed 11/10/2017 by Judge Michael H. Simon. (mja) (Entered: 11/10/2016)
141 Supplemental Memorandum . Filed by City of Portland. (Osoinach, Ellen) (Entered: 12/02/2016)

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CERTIFICATE OF FILING AND SERVICE
I certify that on December 9, 2016, I filed the original PETITIONER
CITY OF PORTLAND'S EXCERPTS OF RECORD AND ADDENDUM
VOLUME I & VOLUME II with the Clerk of the United States Court of
Appeals at this address:
OFFICE OF THE CLERK JAMES R. BROWNING COURTHOUSE UNITED STATES COURT OF APPEALS P.O. BOX 193939 SAN FRANCISCO, CA 94119
by electronically filing in the Appellate CaseManagement/Electronic Case Files
(CM/ECF) system on said day.
I further certify that on December 9, 2016, I served a true and correct
copy of the foregoing PETITIONER CITY OF PORTLAND'S EXCERPTS OF
RECORD AND ADDENDUM VOLUME I & VOLUME II on:
HONORABLE MICHAEL H. SIMON UNITED STATES DISTRICT COURT JUDGE MARK O. HATFIELD UNITED STATES COURTHOUSE COURTROOM 13B 1000 SW THIRD AVENUE PORTLAND, OR 97204
BILLY J. WILLIAMS, OSB# 90136 UNITED STATES ATTORNEY ADRIAN BROWN L. BROWN, OSB# 05020 ASSISTANT UNITED STATES ATTORNEY UNITED STATES ATTORNEY’S OFFICE DISTRICT OF OREGON 1000 SW THIRD AVENUE, SUITE 600 PORTLAND, OR 97204

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-3, Page 56 of 57
STEVEN H. ROSENBAUM, CHIEF LAURA L. COON, SPECIAL COUNSEL R. JONAS GEISSLER, SR. TRIAL ATTORNEY BRIAN D. BUEHLER, TRIAL ATTORNEY SETH WAYNE, TRIAL ATTORNEY UNITED STATES DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION SPECIAL LITIGATION SECTION 950 PENNSYLVANIA AVENUE, NW WASHINGTON, DC 20530
Attorneys for Respondent
ANIL S. KARIA, OSB# 90136 PUBLIC SAFETY LABOR GROUP 3021 NE BROADWAY PORTLAND, OR 97232
Attorney for Respondents-Real Parties in Interest Portland Police Association
KRISTEN A. CHAMBERS KIRKLIN THOMPSON & POPE, LLP 1000 SW BROADWAY, SUITE 1616 PORTLAND, OR 97205
SHAUNA M. CURPHEY CURPHEY & BADGER, PA 520 SW SIXTH AVENUE, SUITE 1040 PORTLAND, OR 97204
JESSICA ASHLEE ALBIES CREIGHTON & ROSE, PC POWERS BUILDING 65 SW YAMHILL STREET, SUITE 300 PORTLAND, OR 97204
Attorneys for Respondents-Real Parties in Interest Albina Ministerial Alliance Coalition for Justice and Police Reform

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-3, Page 57 of 57
by mailing in a sealed envelope, with postage paid and deposited with the U.S. Postal Service in Portland, Oregon to the last known address of said judge and attorneys on said day.
/s/ Tracy Reeve Tracy Reeve, OSB# 891123 City Attorney Email: tracy.reeve@portlandoregon.gov Attorney for Petitioner

Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-4, Page 1 of 1

Molly C. Dwyer Clerk of Court

Office of the Clerk United States Court of Appeals for the Ninth Circuit
Post Office Box 193939 San Francisco, California 94119-3939
415-355-8000
December 09, 2016

No.:

16-73878

D.C. No.: 3:12-cv-02265-SI

Short Title: City of Portland v. USDC-ORP

Dear Petitioner/Counsel
A petition for writ of mandamus and/or prohibition has been received in the Clerk's Office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court of Appeals docket number shown above has been assigned to this case. Always indicate this docket number when corresponding with this office about your case.
If the U.S. Court of Appeals docket fee has not yet been paid, please make immediate arrangements to do so. If you wish to apply for in forma pauperis status, you must file a motion for permission to proceed in forma pauperis with this court.
Pursuant to FRAP Rule 21(b), no answer to a petition for writ of mandamus and/or prohibition may be filed unless ordered by the Court. If such an order is issued, the answer shall be filed by the respondents within the time fixed by the Court.
Pursuant to Circuit Rule 21-2, an application for writ of mandamus and/or prohibition shall not bear the name of the district court judge concerned. Rather, the appropriate district court shall be named as respondent.

 
 BILLY J. WILLIAMS, OSB #901366 United States Attorney RENATA GOWIE, OSB #175273 Civil Division Chief JARED D. HAGER, WSB #38961 Assistant United States Attorney U.S. Attorney’s Office for the District of Oregon 1000 SW Third Ave., Suite 600 Portland, Oregon 97204-2902 Phone: 503.727.1120 Email: jared.hager@usdoj.gov
ERIC S. DREIBAND Assistant Attorney General Civil Rights Division STEVEN H. ROSENBAUM Special Litigation Section Chief LAURA L. COWALL Special Counsel R. JONAS GEISSLER KERRY K. DEAN Trial Attorneys U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530 Phone: 202.514.6255 Fax: 202.514.4883 Attorneys for Plaintiff, United States

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
v. THE CITY OF PORTLAND,
Defendant.

Case No. 3:12-cv-02265-SI
PLAINTIFF’S NOTICE OF FOURTH PERIODIC COMPLIANCE ASSESSMENT REPORT

Page 1 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

Plaintiff, the United States of America, provides notice to the Court of Attachment 1, our Fourth Periodic Compliance Assessment Report (Report), for the period of August 30, 2017, to April 11, 2019. As detailed in the Report, the City has made significant progress in implementing the Amended Settlement Agreement, ECF 171. Indeed, the City has achieved substantial compliance with all components of five of the Agreement’s seven substantive sections:
• Use of Force (Section III); • Training (Section IV); • Community-Based Mental Health Services (Section V); • Crisis Intervention (Section VI); and • Employee Information System (EIS) (Section VII). The City is nearing substantial compliance with the two remaining substantive sections: • Accountability (Section VIII); and • Community Engagement and Creation of Portland Committee on Community
Engaged Policing (PCCEP) (Section IX). While working to reach substantial compliance with these sections, the City must maintain substantial compliance with the other sections. The Agreement requires one year of sustained substantial compliance with all provisions before termination. ECF 171, Amended Settlement Agreement, at 59-60, Par. 175.
Our executive summary of the Report, by topic, is as follows: • Use of Force (Section III):
The Portland Police Bureau (PPB) effectively governed its uses of force through implementation of the approved use-of-force policies and force-review mechanisms. PPB
Page 2 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

trained all officers on the use-of-force policy both in classroom settings and through demonstration in scenarios. PPB also trained all supervisors on the requirements for critically reviewing uses of force.
PPB’s accomplishments with policy and training have yielded positive results. PPB force reports show frequent use of disengagement and utilization of specialized units, like the Enhanced Crisis Intervention Team (ECIT). (Par. 67). As a result, PPB has reduced its use of force. For example, PPB used force in 226 cases in the fourth quarter of 2017 compared to 177 cases in the fourth quarter of 2018, a decrease of 22%. (Pars. 66, 70, 72, 73, 76). Our review of a sample of force events showed that PPB is acting substantially in accordance with approved force policies.
PPB’s use of electronic control weapons (ECW) (sometimes called Tasers or conductive energy devices) also has dropped significantly since our investigation began. Even with a slight increase in the reported number of ECW uses (corresponding to more rigorous reporting requirements), PPB has maintained a significantly lower level of ECW use in the past five years than in the four years preceding that period. (Par. 68).
PPB has internalized the value of providing aid to subjects against whom PPB has used force. PPB has practiced this value many times, including providing immediate aid in a nonlethal officer involved shooting. (Pars. 69, 74).
Finally, PPB’s Force Inspector and analysts have engaged in rigorous audits of uses of force. Based on these audits, the Force Inspector provided useful data to PPB responsible units and to the Training Advisory Council. In part, these audit data identified trends in the types of force PPB used and who used force. (Pars. 74, 75, 76, 77).
Page 3 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

• Training (Section IV): PPB continued to place a high value on training. PPB implemented a new training needs
assessment and a more fulsome training plan addressing multiple areas of training, not just officers’ in-service requirements. PPB also responded to the need for separate supervisory training, requiring a separate in-service training for supervisors, in addition to the in-service training for all sworn officers. (Pars. 78, 79, 84). During in-service training, PPB employed competency-based evaluations of all sworn officers and supervisors. In tests, group discussions, individual ECW and firearm qualifications, physical skills demonstrations, and scenarios, officers had to demonstrate proficiency in the required skills they learned. (Par. 80).
PPB’s Field Training Evaluation Program also reinforced the approved policies through field training of new officers. Coaches assessed trainees’ performance consistent with those policies. (Pars. 78, 84). And PPB implemented its Learning Management System (LMS), which tracks each officer’s assigned training and permits supervisors to check their subordinates’ training status. (Par. 81). • Community-Based Mental Health Services (Section V):
PPB continues to engage with local partners to improve PPB’s role in the community response to those with mental illness. PPB’s Behavioral Health Unit (BHU) worked closely with service providers in multiple ways, including through its Advisory Committee (BHUAC), the Service Coordination Team (SCT), and the Behavioral Health Response Team (BHRT), which pairs a specialist officer with a mental health professional to connect people with mental illness to services. BHRT successes and community demand led to City funding for two additional teams, for a total of five teams. (Pars. 88-90).
Page 4 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

• Crisis Intervention (Section VI): The City, through the Bureau of Emergency Communications (BOEC) and PPB, has
implemented a crisis intervention approach that folds in community partners, provides enhanced training for a team of volunteer patrol officers, dispatches those officers directly to 911 calls that involve a mental health crisis and pose substantial risk of harm to self or others, collects reliable data to refine and improve the approach, and proactively seeks to connect people with mental illness and repeat police contacts to services in lieu of incarceration. (Pars. 91, 99, 105, 106, 112, 113-115). As a result, in this reporting period, PPB’s Directive 850.20 – Police Response to Mental Health Crisis received final approval. The policy emphasizes de-escalation and disengagement, when appropriate, as well as connecting people with services such as transport by ambulance to a hospital as opposed to transport by police cruiser to jail. (Par. 99).
PPB’s Behavioral Health Unit (BHU) continues to collaborate regularly with an advisory committee comprised of community members, service providers, and advocacy groups. (Pars. 91-96). The BHU also continues to oversee the work of the patrol-based ECIT officers, and proactive teams that follow up with people having frequent law enforcement contacts who need mental health and/or addiction services (SCT and BHRT). (Pars. 99, 101, 106-112). BHU officers have demonstrably improved the service PPB provides to individuals in crisis or with an apparent mental illness. (Par. 104). Significantly, the overall rate of force being used against these individuals remains down. Over the six-month period from April 1 to September 30, 2018, PPB reports 28 use-of-force cases among 13,559 service encounters involving a mental health component. (Par. 99). Likewise, BHUAC reports describe many lives saved by the effective response of ECIT officers.
Page 5 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

• Employee Information System (EIS) (Section VII): The City effectively trained supervisors on the required and beneficial use of EIS.
Supervisors now routinely perform required reviews of their subordinates’ EIS records. (Par. 116). PPB now effectively uses force audit data to identify groups or supervisors that are outliers in the use of force as compared with their peers. (Par. 117). • Accountability (Section VIII):
PPB and the Independent Police Review (IPR) implemented long-planned changes to the accountability systems and made progress addressing the timeliness of administrative investigations. The City completed extensive joint training of IPR and Internal Affairs investigators to support consistent investigative standards, even when IPR conducts independent investigations. (Par. 128). The City sought on-scene public safety statements when necessary and had witness officers provide on-scene walk-throughs. (Pars. 124, 126, 127). PPB has issued Communication Restriction Orders when required. (Par. 125). Our review of a sample of investigative files showed that a preponderance of the evidence supports PPB’s and IPR’s sustained, exonerated, or unfounded findings. (Sec. VIII, Pars. 128, 169).
The City improved the timeliness of many of its administrative investigations, but struggled with the timeliness of some. PPB and IPR are taking steps to address this longstanding issue. In order to reach substantial compliance, the City should develop capacity to address new complaints more expeditiously. (Pars, 121, 123). Also, the City should produce completed investigative reports showing implementation of recent changes to investigations in which the Bureau of Human Resources participates. (Pars. 121, 123, 130).
Page 6 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

• Community Engagement (Section IX):

The City's new proposed framework for community engagement—PCCEP—has operated

for six months. (Pars. 141, 151). The City has invested substantial resources to support the

PCCEP’s mission. (Pars. 144, 146, 151, 152). The PCCEP has established a positive,

productive relationship with the Mayor’s Office, PPB, and other relevant City actors. (Pars. 142,

145). PCCEP members have demonstrated their ability to engage with the community and do

the work contemplated by the PCCEP Plan and the Settlement Agreement. (Pars. 142, 146).

However, more work remains.

The PCCEP must continue to engage Portland’s communities, guide the PPB’s

Community Engagement Outreach Plan, and independently assess implementation of the

Settlement Agreement. (Pars. 142, 146). In particular, the City must ensure the PCCEP has a

functional replacement process and adequate pool of alternate candidates so that the PCCEP

remains viable going forward. (Par. 143). More broadly, the City must continue to support the

PCCEP’s efforts to improve PPB-community relations. (Pars. 141, 142, 144, 145, 151).

* * * Our Report uses the following color-coded compliance status levels to indicate our

current assessment of PPB’s progress in complying with each provision of the Settlement

Agreement. Like last year, we added some notations to provide additional information to

compliance status levels that did not change. The color coding is as follows:

•

Green: substantial compliance with an ongoing obligation. This level indicates that the

City has implemented the specific provision as required by the Settlement Agreement, and that

the City has an ongoing obligation to continue such action to achieve sustained substantial

compliance.

•

Yellow: partial compliance with an ongoing obligation. This level indicates that while

Page 7 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

there has been progress made with implementation, specific areas need further attention in order

to reach substantial compliance.

•

Red: non-compliance. This level indicates that we have recognized barriers to achieving

implementation of the provision that must be addressed to achieve substantial compliance.

At the interim status conference scheduled for June 6, 2019, we anticipate presenting the

Court with an overview of our Report and answering any questions the Court may have.

DATED this 3rd day of May, 2019.
Respectfully submitted,
BILLY J. WILLIAMS United States Attorney District of Oregon
RENATA GOWIE Civil Division Chief
/s/ Jared D. Hager JARED D. HAGER Assistant U.S. Attorney

ERIC S. DREIBAND Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Special Litigation Section Chief
/s/ Laura L. Cowall LAURA L. COWALL Special Counsel
/s/ R. Jonas Geissler R. JONAS GEISSLER Trial Attorney
/s/ Kerry K. Dean KERRY K. DEAN Trial Attorney

Page 8 Plaintiff’s Notice of Fourth Periodic Compliance Assessment Report

United States v. City of Portland 2019 Settlement Agreement Compliance Assessment

III. USE OF FORCE A. Use of Force Policy B. Compliance Audits Related to Use of Force
IV. TRAINING V. COMMUNITY-BASED MENTAL HEALTH SERVICES VI. CRISIS INTERVENTION
A. Addictions and Behavioral Health Unit and Advisory Committee B. Continuation of Crisis Intervention (C-I) Program C. Establishing “Memphis Model” Crisis Intervention Team D. Mobile Crisis Prevention Team E. Service Coordination Team F. Bureau of Emergency Communications (BOEC) VII. EMPLOYEE INFORMATION SYSTEM (EIS)

Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance

1

VIII. OFFICER ACCOUNTABILITY
A. Investigation Timeframe B. On Scene Public Safety Statements and Interviews
C. Conduct of IA Investigations
D. Citizen Review Committee (CRC) Appeals
E. Discipline
F. Communication with Complainant and Transparency IX. COMMUNITY ENGAGEMENT AND CREATION OF PORTLAND COMMITTEE ON COMMUNITY ENGAGED POLICING

Partial Compliance – Substantial Improvement
Partial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Substantial Compliance
Partial Compliance

2

III. USE OF FORCE
PPB shall revise its existing use of force policy and force reporting requirements to ensure that all force, particularly force involving persons with actual or perceived mental illness: (a) is used only in accordance with the Constitution and laws of the United States; (b) is no greater than necessary to accomplish a lawful objective; (c) is properly documented, reported, and accounted for; and (d) is properly investigated, reviewed, evaluated, and, if necessary, remedied. PPB shall attempt to avoid or minimize the use of force against individuals in perceived behavioral or mental health crisis, or those with mental illness and direct such individuals to the appropriate services where possible. In addition, PPB shall ensure that officers use non-force and verbal techniques to effect compliance with police orders whenever feasible, especially in the course of conducting welfare checks or effecting arrests for minor offenses or for persons whom officers have reason to believe are experiencing a mental health crisis; de-escalate the use of force at the earliest possible moment; only resort to those use of force weapons, including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function. To achieve these outcomes, PPB shall implement the requirements set out below.

Status Substantial Compliance

Analysis

We agree with the Compliance Officer1 that the City has now come into substantial compliance with Section III. See Compliance and Outcome Assessment Report, Quarterly Report: All Sections with Remaining Compliance Issues, Draft Report, April 2, 2019 (Remaining Issues Report), p. 14, available at https://www.portlandcocl.com/reports/2019/04/02/compliance-and-outcomeassessment-remaining-sections.
We previously reported that PPB had made significant progress towards compliance with Section III through wholesale revision of its force policies that: set clear guidelines for when and how officers may use force; establish how immediate supervisors investigate force; and direct how chain-of-command supervisors review the work of officers under their command. ECF 158-1. PPB also had begun training to those new policies. Id. At the time of our last report, however, that progress was so recent that implementation had not yet demonstrated substantial compliance. Id. This has changed. As described in our analysis for each paragraph below, PPB has demonstrated implementation of the force provisions in a substantially compliant manner.

1 The Settlement Agreement refers to this person as the Compliance Officer Community Liaison (COCL). However, in the amendments to the Settlement Agreement, the parties proposed—and the Court agreed—to divorce the role of assessing compliance from the role of leading the former Community Oversight Advisory Board (COAB). Accordingly, consistent with this more specific role, we refer to this person as the Compliance Officer in this report.
3

A. Use of Force Policy
66. PPB shall maintain the following principles in its existing use of force policies:
a. PPB shall use only the force reasonably necessary under the totality of circumstances to lawfully perform its duties and to resolve confrontations effectively and safely; and

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer’s recent assessment that PPB has completed the steps needed to demonstrate substantial compliance with this provision. See Remaining Issues Report, p. 15.
Since August 19, 2017, PPB’s revised force policy, Directive 1010.00 – Use of Force, has governed officers’ obligations in de-escalation, deciding when force is permissible, reporting uses of force, and investigating force use. See Dir. 1010.00 – Use of Force, available at https://www.portlandoregon.gov/police/article/647779. In our prior report, we explained that the Settlement Agreement’s definition of “implementation” requires, among other things, that PPB appropriately train sworn members. ECF 158-1 (citing Settlement Agreement Par. 156 (requiring that PPB implement all provisions of the Settlement Agreement), Par. 33 (“implement” means, inter alia, the appropriate training of all relevant personnel)). As we describe below in the discussion of the Settlement Agreement’s training provisions, during this monitoring period PPB has completed that training for all sworn members. In addition, PPB also has trained supervisors on their responsibilities to investigate force events; critically assess force events in after actions reports; report excessive force allegations; and enter and respond to Employee Information System (EIS) alerts for force events. We directly observed the 2018 in-service and supervisory training. The training effectively disseminated consistent directions to all supervisors regarding the use of PPB’s automated checklists to assess each criteria and to critique uses of force in after-action reviews; the required response to EIS notifications; and the use of the EIS system for reviews of subordinates.
We also previously stated that “implementation” requires verification that PPB is acting in accordance with the force policy and—consequently—in accordance with the Settlement Agreement and constitutional standards. ECF 158-1. In its July 2018 report, the Compliance Officer noted that some supervisors reviewed the moment of force use while others reviewed the entire force interaction. See Quarterly Report: Section III Use of Force, October 2017 to July 2018 (Section III Report), pp. 10-11, available at https://static1.squarespace.com/static/5a319f76a9db0901e16c6433/t/5ba9a439f4e1 fc2155f249cd/1537844298679/Compliance+and+Outcome+Assessment+Report++Use+of+Force+FINAL+with+appendices.pdf.
Since that time, the Compliance Officer reassessed the conditions it placed on PPB to achieve a substantial compliance rating. Remaining Issues Report, p. 15. The Compliance Officer reviewed 20 randomly selected reported uses of force. Id. The Compliance Officer found all but one of the uses of force reasonable and,

4

with respect to that case, the Force Inspector had already sent the case to Training Division for further analysis. Id. The Compliance Officer also found that PPB largely evaluates the totality of circumstances in its force reviews and PPB has for the most part resolved conflation of command and control techniques with required attempts at de-escalation. Id. In other words, both in use of force events and supervisors’ review of those events, PPB demonstrated not merely justified uses of force in nearly all cases—as the Settlement Agreement requires—but attempts to avoid force altogether through de-escalation, when appropriate.
Separate from the Compliance Officer’s analysis, we independently reviewed 20% of all reported instances of serious force, as defined in the Settlement Agreement, that did not rise to the level of officer involved shootings or crowd control force events (we reviewed samples of those separately). We found that PPB supervisors routinely applied the decision-point analysis to each step of the interaction. The reports also included reasonable bases for each separate application of force. Where there were issues with evidence collection or a need to record a critical incident, supervisors made EIS entries and responded with corrective action.
Accordingly, both the Compliance Officer’s and DOJ’s analyses now support that PPB is in substantial compliance with the Settlement Agreement’s central requirement to use force only when reasonably necessary under the totality of circumstances to lawfully perform police duties.

b. PPB expects officers to develop and display, over the course of their practice of law enforcement, the skills and abilities that allow them to regularly resolve confrontations without resorting to force or the least amount of appropriate force.

Status Substantial Compliance

Analysis

The Compliance Officer finds that PPB has complied substantially with the totality of Paragraph 66. See Remaining Issues Report, p. 16. We agree.
We stated in our prior report that PPB had only partially complied with this provision, in part, because its Directive 315.30 did not incorporate Paragraph 66(b) and, in part, because PPB needed to demonstrate performance with 66(b). ECF 158-1. With input from the Compliance Officer and DOJ, PPB revised Directive 315.30. See Dir. 315.30 – Satisfactory Performance, revised Jan. 30, 2018, available at https://www.portlandoregon.gov/police/article/674035. The Directive now incorporates the substantive requirements of Paragraph 66(b). See Dir. 315.30, Par. 2.7.
PPB also has demonstrated implementation in three important respects. First, as described above, PPB supervisors routinely apply decision-point analysis to an entire transaction to assess officers’ actions. In other words, more than just focusing on the instant force was used, supervisors look for the attempts to resolve confrontations without resorting to use of force. Second, as described in the EIS section, below, EIS now effectively tracks and requires supervisory response to complaints of misconduct that may include alleged violations of Directive 315.30.

5

Third, as described in the Accountability section below, Independent Police Review (IPR) does not hesitate to frame allegations of misconduct in terms of a violation of Directive 315.30. In sum, the City’s accountability mechanisms enforce the required performance standard.

67. PPB shall add to its use of force policy and procedures the following use of force principles:
a. Officers shall use disengagement and de-escalation techniques, when possible, and/or call in specialized units when practical, in order to reduce the need for force and increase officer and civilian safety;
b. In determining whether to use force, officers will take into account all information, when feasible, including behavior, reports, and known history as conveyed to or learned by the officer by any means, indicating that a person has, or is perceived to have, mental illness;
c. The use of force shall be de-escalated as resistance decreases and the amount of force used, including the number of officers who use force, shall de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force; and
d. Objectively unreasonable uses of force shall result in corrective action and/or discipline, up to and including termination.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer’s most recent assessment of Paragraph 67(a) and (d) that the City is now in Substantial Compliance. See Remaining Issues Report, p. 16. The Compliance Officer had already found that PPB reached substantial compliance with the other provisions of Paragraph 67. See Section III Report, pp. 6, 13. We agree.
We previously found that PPB’s Directive 1010.00 incorporates all of Paragraph 67(a)’s mandates. ECF 158-1 (citing Dir. 1010.00 – Use of Force, Procedure section Par. 1.1 (“Members shall use disengagement and de-escalation techniques, when time and circumstances reasonably permit”); id. Par. 1.1.2 (“When practical and appropriate, members shall consult with and/or call specialized units to respond”)). PPB remains in substantial compliance with this policy requirement.
De-escalation:
The Settlement Agreement does not define de-escalation. Directive 1010.00, which we approved, defines de-escalation specific to force interactions as “a deliberate attempt to reduce the necessity or intensity of force to resolve confrontation.”2 See Dir. 1010.00, definitions, available at https://www.portlandoregon.gov/police/article/647779.

2 This definition conforms to the term’s ordinary use: “Reduction of the intensity of a conflict or potentially violent situation.” See, e.g., “De-escalation,” Oxford Living Dictionary, available at https://en.oxforddictionaries.com/definition/de-escalation.
6

We previously found that PPB’s Fall 2017 in-service training was excellent overall, but that de-escalation training would benefit from even further clarity and consistent training. ECF 158-1. Since that time, the Compliance Officer has worked closely with PPB to emphasize the need to require further de-escalation training. We reviewed and approved PPB’s in-service lesson plans in advance of training. We observed 2018 in-service training that addressed de-escalation through instruction on the obligations to de-escalate contained in Directive 1010.00, but also through a separate class on decision-making. In debriefs following training scenarios, trainers also solicited questions about the need to deescalate and critiqued participants’ use of de-escalation in the scenarios.
Also, we observed in our above-referenced sample of serious force incidents that officers routinely set forth either attempts to de-escalate a situation, or the critical reasons why time did not permit such efforts, e.g., an officer immediately engaged when civilians were already fighting with a subject upon arrival (18-368026). The Compliance Officer likewise found that PPB now reports in a clearer fashion its efforts at de-escalation. See Remaining Issues Report, p. 16.
Disengagement, Specialized Units, and Actual or Perceived Mental Illness:
We previously reported that PPB trained on these topics, specifically teaching, “Disengagement with a Plan,” in the Fall of 2017. ECF 158-1. See also Compliance and Outcome Assessment Report, Dec. 7, 2017 (2017 Compliance Officer Report), at p. 60. In this monitoring period, a separate sample of force events show PPB used a mental health template that both the Compliance Officer and DOJ approved to record information about their interactions, in addition to using force reports. As we describe below in the Crisis Intervention section, the City implemented an approved dispatch criteria for Enhanced Crisis Intervention Team (ECIT) calls. These achievements, coupled with force reviews that show attempts at disengagement and utilization of specialized units, demonstrate that PPB has substantially complied with Paragraph 67.
1. Electronic Control Weapons
68. PPB shall revise PPB Directive 1051.00 regarding Taser, Less-Lethal Weapon System to include the following principles:
a. Prohibition against the use of ECWs for pain compliance against those suffering from mental illness or emotional crisis except in exigent circumstances, and then only to avoid the use of a higher level of force;
b. Unless it would present a danger to the officer or others, that officers shall issue a verbal warning, or attempt to utilize hand signals where there is a language barrier or the subject is hearing impaired, prior to deploying their ECW;
c. Officers shall follow protocols developed by PPB in conjunction with medical professionals on their responsibilities following ECW use;
d. Only one ECW at a time may be used on a subject, intentionally, except where lethal force would be permitted;
7

e. After one standard ECW cycle (5 seconds), the officer shall reevaluate the situation to determine if subsequent cycles are necessary, including waiting for a reasonable amount of time to allow the subject to comply with the warning. Officers shall describe and explain the reasonableness of each ECW cycle in their use of force reports;
f. Officers shall make every reasonable effort to attempt handcuffing during and between each ECW cycle. Officers should avoid deployments of more than three ECW cycles unless exigent circumstances warrant use;
g. ECWs shall not be used on handcuffed or otherwise restrained persons, unless doing so is necessary to prevent them from causing serious physical injury to themselves or others, or if lesser attempts of control have been ineffective and/or to avoid greater application of use of force; and
h. Officers receive annual ECW in service training including proficiency and policy changes, if any.

Status

Substantial Compliance

Analysis

In its July 2018 report, the Compliance Officer found substantial compliance with Paragraph 68. See Section III Report, pp. 10-11. We agree.
We previously reported that PPB’s revised Directive 1010.00 incorporates all of Paragraph 68’s mandates. ECF 158-1 (citing Dir. 1010.00 – Use of Force, Par. 6.4.4.2). We also reported that PPB had trained on the new policy, but needed to clarify what constitutes one ECW cycle; what should happen after each cycle; and that officers should avoid deployments of more than three ECW cycles unless exigent circumstances warrant it. ECF 158-1. PPB has done so. We reviewed and approved PPB’s ECW training materials before PPB’s 2018 in-service training. PPB’s in-service provided annual recertification addressing the policy requirements on the use of ECWs and requiring that each sworn member demonstrate the skills in applying ECW in a manner consistent with policy.
Specifically with respect to Paragraph 68(f)’s direction to avoid more than three ECW cycles absent exigent circumstances, PPB has demonstrated compliance. PPB reports zero cases of four or more ECW cycles in 2018 and four cases of three ECW cycles.
As shown by the graph below, PPB’s ECW usage has significantly decreased from the time period of our investigation to the present:

8

2. Use of Force Reporting Policy and Use of Force Report
69. PPB shall revise its policies related to use of force reporting, as necessary, to require that:
a. All PPB officers that use force, including supervisory officers, draft timely use of force reports that include sufficient information to facilitate a thorough review of the incident in question by supervisory officers; and
b. All officers involved or witnesses to a use of force provide a full and candid account to supervisors.
c. In case of an officer involved shooting resulting in death, use of lethal force, or an incustody death, PPB will fulfill its reporting and review requirements as specified in directive 1010.10, as revised. This will take place of Directive 940.00 reports for purposes of paragraphs 70, and 72-77 of this Agreement. (Subparagraph c added by ECF 171.)

Status

Substantial Compliance

Analysis

The Compliance Officer found PPB in compliance with Paragraph 69 in its July 2018 review. See Section III Report, p. 19. We agree. Specifically, the Compliance Officer found that officers routinely submit reports prior to the end of their shift and, for lethal uses of force, the administrative investigation serves as a

9

way to collect the information normally required in a Force Data Collection Report (FDCR) to facilitate a thorough review of the incident.
We stated in our last report that PPB’s revised Directives 1010.00 and 1010.10 meet the Settlement Agreement requirements for reporting uses of force, but that we needed verification that PPB was acting in accordance with these policies in order to show implementation and reach substantial compliance. ECF 158-1. PPB has done so.
PPB’s Directive 1010.00 categorizes all types of force, and sets out reporting requirements for each category for both involved and witness officers. Officers who use deadly force do not complete a use of force report or interview with a supervisor; instead, Professional Standards Division (PSD) interviews any officer involved in a deadly use of force “as soon as practicable, but no later than within 48 hours of the event.” See generally Dir. 1010.10 – Deadly Force and InCustody Death Reporting and Investigation, Par. 2.2.5.3, available at https://www.portlandoregon.gov/police/article/656780. PPB also obtains information necessary to ensure public safety at the scene. Dir. 1010.10, Par. 2.1.3.1.3. We found that the revised Directive 1010.10 is consistent with the Settlement Agreement, as amended, and that the City has developed standard operating procedures to implement the revised Directive, in consultation with the DOJ, Portland Police Association (PPA), and Multnomah County District Attorney’s Office. ECF 158-1.
We verified performance is now in substantial compliance with the revised directives. Above, we referenced a sample of serious force cases that we reviewed. These reports comported with the requirements of Paragraph 69.
Officer Involved Shootings (OIS):
In addition to our serious force case sample, we reviewed a sample of closed OIS cases available since the last DOJ monitoring report. As we did in our prior report, we randomly selected a sample of two OIS reports to assess for this report. This sample included one fatal and one non-fatal OIS.
2018-B-0023. On the day of the OIS, PPB’s first contact with the subject occurred in response to a 911 call. An ECIT officer and another officer responded. The officers’ presence agitated the subject who, at that time, was not violent toward himself or others. Without need to arrest at that time, officers disengaged and referred the subject for further services. The subject then committed a series of crimes ultimately leading to the force interaction. The OIS occurred at an addiction recovery meeting. The subject held a knife to his throat. Shortly after officers confronted the person, he came toward the officers with the knife in hand. Officers sequentially fired ECWs and less-lethal foam baton rounds, which were ineffective, and then fired lethal weapons to stop his advance. The subject died.
Following the OIS, PPB separated witness and involved officers. Narrative descriptions of the scene describe sequestration of involved and witness officers before formal communication restriction orders (CROs) issued. (PPB provided both the written CROs and corresponding rescinding orders following the
10

investigation.) Though PPB did not have the authority to issue a CRO to an involved Multnomah County Sheriff’s Office (MCSO) deputy, PPB notes that MCSO issued its own CRO to the involved deputy. Documentation PPB provided shows MCSO issued a similar CRO and rescinded the CRO after the grand jury returned a no true bill.
PPB asked all the involved members if they would be willing to provide a voluntary statement to detectives; all declined. A supervisor at the scene provided an on-scene briefing; the supervisor also submitted to a detective’s interview the night of the incident. PPB meticulously photographed officers, their weapons, and the unexpended rounds. Within the timeframes permitted, PPB interviewed the involved officers, witness officers, and numerous civilian witnesses from the OIS and from the related incidents that preceded the OIS. PPB also coordinated with other law enforcement agencies in the area, where appropriate, to contribute to the investigation of the OIS and to ensure the safety of individuals reported to be in danger. Accordingly, PPB complied with Directive 1010.10, and the Settlement Agreement’s provisions to protect the integrity of an OIS investigation.
We also observed the Police Review Board (PRB) presentation of this OIS. We had notified PPB ahead of time that our expert consultant asked what PPB’s plan was before entering the populated room and during the force encounter. The PRB failed to give a sufficiently clear answer to that question during the PRB, and the Training Division did not speak to the efficacy of the less lethal rounds deployed in the interaction. We found the PRB review otherwise thorough. The Commander presented a complete narrative of the OIS event. PPB members of the PRB willingly accepted and answered questions from non-PPB members, i.e., IPR and civilian representatives.
Though the PRB failed fully to address immediate planning before the OIS, PPB addressed the issue through the administrative investigation, i.e., IA’s investigation for the after-action review of the OIS. Ultimately, PPB found the OIS within policy. Even so, PPB recommended de-briefing the immediate supervisor of that incident, to instruct him on his role to coordinate members’ responses when time permits.
The Training Division’s written assessment of the OIS, like its presentation at the PRB, did not address efficacy of the less-lethal round used. The less-lethal operator officers in their interviews noted that the rounds did not have effect, and training noted that the rounds did not change the subject’s behavior. Yet the Training Division did not address whether the PPB’s newly chosen less-lethal system works as intended. We recommend that Training Division conduct such an analysis in future reviews.
Overall, IA’s self-critical analysis meets the requirements of the Settlement Agreement’s after-action investigation requirements.
We also reviewed 2018-B-0014. In this incident, a person stood behind a door and pointed a gun at officers, revealing the person’s hand and gun, but concealing the person’s body behind a structure. The IA investigation of the incident shows a deliberate effort to determine whether or not each shot fired was within policy.
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Even while the incident was still unfolding, after the first officer fired at the subject, the supervisor removed and sequestered that officer, i.e., beginning the CRO process before the incident was even complete. PPB called in specialized units, namely Special Emergency Reaction Team (SERT) and Crisis Negotiation Team (CNT). Before their arrival, the subject fired the gun at police; police returned fire and struck the subject’s hand and leg. Importantly, PPB staged individual first aid kits—referred to as IFAKs, readied a field stretcher, employed the use of a tool open a gate open for paramedics, and deployed a medic with SERT. Each of these steps—before the subject was even in custody—demonstrate an internalized value in rendering immediate aid to subjects against whom PPB uses force.
In this incident, PPB’s use of lethal force, i.e., firearms, did not result in fatality. Rather, after the subject was injured, SERT relieved the patrol officers. PPB successfully resolved the incident by arrest without further force and provided medical aid on the scene with paramedics. This incident also demonstrated the effective use of specialized units—SERT and CNT—to resolve safely the situation without using further force.
Crowd control:
We reviewed several crowd-control incidents involving uses of force. Our review included not only PPB records, but also online video posted from non-PPB sources. A review of the documents showed appropriate reporting of force, supervisory review of force, and justification for the use of force.
In three crowd-control incidents we reviewed during this rating period, PPB officers who used force appropriately documented the force used. Supervisors critiqued the force reports and justifications. Where there was room for improvement in reporting, even though compliant with policy, the supervisors pointed out these opportunities. The records provided also showed that PPB located and arrested or cited suspects both during and after the crowd control incidents. Where officers had failed adequately to document warnings or de-escalation, supervisors identified those deficiencies as well. PPB recorded those failures to adequately document as oversights and corrected them.
In a fourth crowd control event we reviewed this monitoring period, PPB attempted to talk with protestors to calm them after protestors unsuccessfully tried to pull an arrestee back from PPB custody. Ultimately, after protestors threw items at PPB officers, PPB employed the use of oleoresin capsicum (OC) spray— rather than batons, ECWs, or other less-lethal weapons—on four protestors. In that incident, the officers were able to articulate policy-compliant bases for the uses of force, excepting one strike and one mistaken use of OC spray based on the misimpression that that subject had struck another officer. We found the force used in the chaotic situation measured in this instance.
The City is in substantial compliance with Paragraph 69.
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Technical We recommend PPB apply its training review template to assess efficacy of the Assistance tools PPB uses with the objective of improving PPB’s responses in future
situations.

3. Use of Force Supervisory Investigations and Reports
70. PPB shall continue enforcement of Directive 940.00, which requires supervisors who receive notification of a force event to respond to the scene, conduct an administrative review and investigation of the use of force, document their findings in an After Action Report and forward their report through the chain of command. PPB shall revise Directive 940.00 to further require that supervisory officers:
a. Complete After Action Reports within 72 hours of the force event;
b. Immediately notify his or her shift supervisor and PSD regarding all officers[’] Serious Use of Force, any Use of Force against persons who have actual or perceived mental illness, or any suspected misconduct. Where the supervisor suspects possible criminal conduct, the supervisor shall notify the PPB Detective Division. Where there is no misconduct, supervisors also shall determine whether additional training or counseling is warranted. PPB shall then provide such counseling or training consistent with this Agreement;
c. Where necessary, ensure that the subject receives medical attention from an appropriate medical provider; and
d. Interview officers individually and not in groups.

Status

Substantial Compliance

Analysis

The Compliance Officer found PPB in compliance with Paragraph 70 in its July 2018 review. See Section III Report, pp. 20-21. We agree.
We previously found that PPB’s revised Directive 1010.00 includes the required immediate supervisory notification about any use of force. ECF 158-1 (citing Dir. 1010.00 – Use of Force, Par. 11.1.1, available at https://www.portlandoregon.gov/police/article/647779). In addition, consistent with amended Paragraph 69(c) of the Settlement Agreement, for all uses of force except deadly force the supervisor must conduct an administrative review and investigation, document the findings in an After Action Report within 72 hours and forward the report through the chain of command. Id., Pars. 12.3, 13.1, 13.3. As we also previously reported, Directive 1010.10 governs the administrative review of deadly force events, including interviewing any officer who uses deadly force, conducted by PSD. Id., Par 6.3.
Our review of the above-described OIS events indicates that these administrative reviews occur concurrently with a criminal investigation, including interviewing the involved officer(s) within 48 hours, as required by the approved Directive. Id. Par. 3.1 and 6.1.

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In this monitoring period, PPB trained its supervisors on the requirements of after action reviews and reporting to PSD for OIS cases. In the samples we reviewed, supervisors completed these tasks as intended.
In the fourth quarter of 2018, PPB had recorded 55 serious uses of force. Fiftythree of those, or 96.36%, had notifications to PSD.
PPB has demonstrated substantial compliance with Paragraph 70.

71. PPB shall maintain adequate patrol supervision staffing, which at a minimum, means that PPB and the City shall maintain its current sergeant staffing level, including the September 2012 addition of 15 sergeants.

Status Substantial Compliance

Analysis

The Compliance Officer found PPB in compliance with Paragraph 71 in its July 2018 review. See Section III Report, p. 21. We agree and had previously found substantial compliance, too.
PPB continues to maintain substantial compliance with Paragraph 71. For patrol level staffing, PPB’s current ratios are 4.8 in Central Precinct (including Behavioral Health Unit (BHU)), 4.7 in East Precinct, and 4.2 in North Precinct.

72. PPB shall develop a supervisor investigation checklist to ensure that supervisors carry out these force investigation responsibilities. PPB shall review and revise the adequacy of this checklist regularly, at least annually.

Status

Substantial Compliance

Analysis

The Compliance Officer found PPB in compliance with Paragraph 72 in its July 2018 review. See Section III Report, p. 21. We agree.
As we previously reported, PPB’s revised Directive 1010.00 designates the After Action Report form as the checklist to ensure supervisors carry out force investigation responsibilities. ECF 158-1 (citing Dir. 1010.00 – Use of Force, Par. 13.2, available at https://www.portlandoregon.gov/police/article/647779).
In the force incidents we reviewed, described above, PPB electronically employed these force reporting forms, including the checklists incorporated into the forms.

73. PPB shall revise its policies concerning chain of command reviews of After Action Reports, as necessary, to require that:
a. EIS tracks all Directive 940.00 comments, findings and corrections (amended by ECF 171);

14

b. All supervisors in the chain of command are subject to and receive corrective action or discipline for the accuracy and completeness of After Action Reports completed by supervisors under their command;
c. All supervisors in the chain of command are accountable for inadequate reports and analysis;
d. A supervisor receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position when he or she repeatedly conducts deficient investigations. Where a shift commander, or precinct commander, repeatedly permits deficient investigations, the shift commander, or precinct commander, receives the appropriate corrective action, including training, demotion, and/or removal from a supervisory position;
e. When, after investigation, a use of force is found to be out of policy, PPB shall take appropriate corrective action consistent with the Accountability provisions of this Agreement;
f. Where the use of force indicates policy, training, tactical, or equipment concerns, the immediate supervisor shall notify the Inspector and the Chief, who shall ensure that PPB timely conducts necessary training and that PPB timely resolves policy, tactical, or equipment concerns; and
g. The Chief or designee, as well as PSD, has discretion to re-assign a use of force investigation to the Detective Division or any PPB supervisor.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer’s most recent assessment that the City has completed the necessary steps to come into substantial compliance. See Remaining Issues Report, p. 19.
As we previously reported, PPB’s revised Directive 1010.00 incorporated the required elements of Paragraph 73. ECF 158-1 (citing Dir. 1010.00, Par. 13).
During this monitoring period, PPB revised Directive 345.00, though PPB has not yet enacted that revised version. Nonetheless, the currently enacted version and SOP 49 require that supervisors use EIS to track findings and corrections from after action reviews. Our review of force incidents in this monitoring period indicated this occurred. For example, there was a record of an EIS entry for a firearm discharge not resulting in use of force against a person. The Compliance Officer’s recent report supports that PPB is holding officers and supervisors accountable for uses of force and after action reviews. Likewise, we found corrections and interventions by way of training and counseling. In this reporting period, we also met directly with the Force Inspector and Compliance Commander to discuss a means of tracking needed corrections for policy, tactical, or equipment concerns pursuant to Paragraph 73(f). This resulted in the development of the feedback loop that the Compliance Officer discussed in his July 2018 report. See Section III Report, p. 23, appendix 3. PPB has continued to use this tool for

15

systemic issues, as well as Performance Data Tracker (PDT) entries in the EIS system to follow up on issues with individual officers and supervisors.
B. Compliance Audits Related to Use of Force 74. In consultation with the COCL, the Inspector, as part of PPB’s quarterly review of force, will audit force reports and Directive 940.00 Investigation Reports to ensure that:
a. With respect to use of force generally: i. reports describe the mental health information available to officers and the role of that information in their decision making; ii. officers do not use force against people who engage in passive resistance that does not impede a lawful objective; iii. when resistance decreases, officers de-escalate to a level reasonably calculated to maintain control with the least amount of appropriate force; iv. officers call in specialty units in accordance with procedure; v. officers routinely procure medical care at the earliest available opportunity when a subject is injured during a force event; and vi. officers consistently choose options reasonably calculated to establish or maintain control with the least amount of appropriate force.
b. With respect to ECW usages: i. ECW deployment data and Directive 940.00 reports are consistent, as determined by random and directed audits. Discrepancies within the audit should be appropriately investigated and addressed; ii. officers evaluate the reasonableness and need for each ECW cycle and justify each cycle; when this standard is not met, this agreement requires supervisor correction; iii. officers are universally diligent in attempting to use hands-on control when practical during ECW cycles rather than waiting for compliance; and iv. officers do not attempt to use ECW to achieve pain compliance against subjects who are unable to respond rationally unless doing so is reasonably calculated to prevent the use of a higher level of force.
c. With respect to use of force reporting, the reports: i. are completed as soon as possible after the force incident occurs, but no later than the timeframes required in policy; ii. include a detailed description of the unique characteristics of the event, using common everyday language, sufficient to allow supervisors to accurately evaluate the quality of the officer’s decision making and performance; iii. include a decision point description of the force decision making;
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iv. include a detailed description of the force used, to include descriptive information regarding the use of any weapon;
v. include a description of any apparent injury to the suspect, any complaint of injury, or the absence of injury (including information regarding any medical aid or on-scene medical evaluation provided);
vi. include the reason for the initial police presence;
vii. include a description of the level of resistance encountered by each officer that led to each separate use of force and, if applicable, injury;
viii. include a description of why de-escalation techniques were not used or whether they were effective;
ix. include whether the individual was known by the officer to be mentally ill or in mental health crisis;
x. include a general description of force an officer observes another officer apply; and
xi. demonstrate that officers consistently make diligent efforts to document witness observations and explain when circumstances prevent them from identifying witnesses or obtaining contact information. Reports will include all available identifying information for anyone who refuses to provide a statement.
75. In consultation with the COCL, the Inspector shall audit force reports and Directive 940.00 investigations to determine whether supervisors consistently:
a. Complete a Supervisor’s After Action Report within 72 hours of notification;
b. Review all use of force reports to ensure they include the information required by this Agreement and PPB policy;
c. Evaluate the weight of the evidence;
d. Use a “decision-point” approach to analyze each use of force;
e. Determine whether the officer’s actions appear consistent with PPB policy, this Agreement, and best practices;
f. Determine whether there was legal justification for the original stop and/or detention;
g. Assess the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options;
h. Determine whether additional training or counseling is warranted;
i. Implement corrective action whenever there are material omissions or inaccuracies in the officers’ use of force report, and for failing to report a use of force, whether applied or observed;
j. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, or poor tactical decisions in EIS;
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k. Notify PSD and the shift supervisor of every incident involving an officer’s Serious Use of Force, and any Use of Force that could appear to a reasonable supervisor to constitute misconduct; and
l. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear to a supervisor that an officer engaged in criminal conduct.
77. In consultation with the COCL, the Inspector shall audit the adequacy of chain of command reviews of After Action Reports using the following performance standards to ensure that all supervisors in the chain of command:
a. Review Directive 940.00 findings using a preponderance of the evidence standard;
b. Review Directive 940.00 reports to ensure completeness and order additional investigation, when necessary;
c. Modify findings as appropriate and document modifications;
d. Order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings and counsel the investigator;
e. Document any training deficiencies, policy deficiencies, or poor tactical decisions, ensure a supervisor discusses poor tactical decisions with the officer and ensure the discussion is documented in EIS;
f. Suspend an investigation immediately and notify the branch Assistant Chief, the Director of PSD, and the Detectives Division whenever the investigating supervisor, shift commander or Division commander finds evidence of apparent criminal conduct by a PPB officer; and
g. Reports a matter to PSD for review and investigation whenever an investigating supervisor, shift commander or precinct commander finds evidence of apparent misconduct by a PPB officer or employee.

Status

Substantial Compliance

Analysis

Like the Compliance Officer’s most recent report, we group together the assessment of Paragraphs 74, 75, and 77. See Remaining Issues Report, p. 21. Substantial compliance with each of these paragraphs turns on whether PPB properly conducts audits of force use and after action reports, including the tracking of corrective actions, i.e., the feedback loop to which we referred in the analysis of Paragraph 73. We find PPB has reached substantial compliance with this significant analytical undertaking.
PPB’s revised Directive 1010.00 requires the Inspector to conduct routine audits of force reports and force-related after action reports, and incorporates the lineitem requirements of Paragraphs 74, 75, and 77. ECF 158-1 (citing Dir. 1010.00, Pars. 13.00, 4.1, 13.4.10.1, 13.4.10.2). PPB’s Force Inspector has created a reliable method for examining force reports for required data. ECF 158-1.
We previously expressed concern that PPB had not provided officers with one coherent model for decision-point analysis. ECF 158-1. Accord 2017

18

Compliance Officer Report at 17 (“PPB currently evaluates the ‘moment of force’ but does not adequately review all circumstances which may contribute to the presence of force in a situation.”). In this monitoring period, PPB addressed that specific issue with a separate in-service class instructing on a consistent decision-making model. The Compliance Officer and DOJ reviewed and approved the lesson plan in advance of that training. The Compliance Officer and DOJ then observed the training and provided PPB feedback based on these observations. PPB has met prior DOJ concern with having a consistent model for decision-making analysis.
Since our last report to the Court, PPB has posted a complete force audit report covering 2017. See Memorandum from Force Inspector to Chief of Police, Jan. 1, 2018, available at https://www.portlandoregon.gov/police/article/682976. Importantly, PPB has continued to mature the force tracking and auditing to cover the definitions of force in the revised 1010.00. PPB has posted force data summaries for all four quarters of 2018. See Force Data Summary Reports, available at https://www.portlandoregon.gov/police/76976.
In its most recent draft report, the Compliance Officer found that PPB could not provide a complete record of responses to audit action items. Remaining Issues Report, p. 21. This difficulty was not a function of PPB failing to complete the work, but rather verifying the work during the planned absence of the regular Force Inspector. Id. We interviewed the Force Inspector during this absence. PPB records the corrective actions in EIS or through the Force Inspector’s master tracking sheet, i.e., the “Audit Action Item Report.” In addition, PPB now has adopted a common form for tracking corrective action, not dependent on whether or not the Force Inspector is absent.
Technical PPB should include its new corrective action tracking form in its SOPs. Assistance
76. In consultation with the COCL, the Inspector shall conduct a quarterly analysis of force data and supervisors’ Directive 940.00 reports designed to:
a. Determine if significant trends exist;
b. Determine if there is variation in force practice away from PPB policy in any unit;
c. Determine if any officer, PPB unit, or group of officers is using force differently or at a different rate than others, determine the reason for any difference and correct or duplicate elsewhere, as appropriate;
d. Identify and correct deficiencies revealed by the analysis; and
e. Document the Inspector’s findings in an annual public report.
Status Substantial Compliance
Analysis The Compliance Officer grouped together its assessment of Paragraph 76 with Paragraphs 73(b) and (d). See Remaining Issues Report, p. 19. We agree with
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COCL’s most recent assessment that the City has completed the necessary steps to come into substantial compliance with Paragraph 76. Id.
We previously reported that PPB’s much-improved Force Audit Reports describe patterns in individual officers’ use of force in much more revealing ways than in the past, and identify deficiencies in reporting by rank and unit. ECF 158-1.
PPB has posted force data summaries for all four quarters of 2018, utilizing the definitions of force in the revised 1010.00. See Force Data Summary Reports, available at https://www.portlandoregon.gov/police/76976. The quarterly reports discuss trends as the Settlement Agreement intends. PPB’s most recent force data analysis reports that PPB employed force in 3.3% of custodies.3 See PPB Force Analysis Summary Report, Q4 2018, October 01 - December 31, 2018, available at https://www.portlandoregon.gov/police/article/712692. PPB has reduced its use of force. For example, PPB used force in 226 cases in the fourth quarter of 2017 compared to 177 cases in the fourth quarter of 2018, a decrease of 22%. Id.

IV. TRAINING
78. All aspects of PPB training shall reflect and instill agency expectations that officers are committed to the constitutional rights of the individuals who have or are perceived to have mental illness whom they encounter, and employ strategies to build community partnerships to effectively increase public trust and safety. To achieve these outcomes, PPB shall implement the requirements below.

Status

Substantial Compliance

Analysis

The Compliance Officer found PPB in compliance with Paragraph 78 in its October 2018 review. Quarterly Report: Section IV Training and Section VII Employee Information System, October 2017 to October 2018 (Sections IV and VII Report), p. 10, available at https://static1.squarespace.com/static/5a319f76a9db0901e16c6433/t/5bef2ee24fa5 1ab54d7bd6a7/ 1542401771089/Compliance+and+Outcome+Assessment+Report++Training+and+EIS+ FINAL+ with+appendices.pdf. The Compliance Officer has lauded much of PPB’s training and the Compliance Officer has constructively worked with PPB, IPR, and BOEC to improve training.
We previously found that though PPB had advanced training consistent with agency expectations for constitutional policing and community relationships. PPB now has achieved substantial compliance with all of Section IV.

3 PPB defines “custodies” to include: arrests (felony, misdemeanor, citation in lieu of arrests, and juvenile); transportations to detoxification facilities; transportations to hospitals; transportations to mental health facilities; and protective custodies (e.g., removing children from an unsafe environment).
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Throughout this monitoring period, PPB provided the Compliance Officer and DOJ with requested lesson plans and training materials for in-service training and supervisory training. We reviewed and commented on those materials. Though we did not always reach complete agreement, PPB’s lesson plans nonetheless substantially complied with the requirements of Section IV. The Compliance Officer and DOJ also observed in-service training for all officers in both the Spring and Fall of 2018, and supervisory in-service training in Fall 2018. We provided constructive feedback where appropriate. Largely, though, we confirmed that both the substance and the delivery of training comported with approved policies and the Settlement Agreement. As described in the Accountability section below, the Compliance Officer and DOJ also reviewed and observed the joint PPB IA and IPR training concerning administrative investigations and the revised accountability policies. We also assessed the Learning Management System (LMS), Training Advisory Council (TAC) minutes, and the training audit to assure that PPB has reached substantial compliance with those provisions of Section IV, as we describe below.
In addition to the classroom-based training, range exercises, and scenario-based training, we also observed a sample of field training. The Field Training Evaluation Program (FTEP) is PPB’s version of a field-training program. Recruits advance through phases while completing PPB’s advanced academy. PPB has revised its FTEP manual consistent with approved policies and the Settlement Agreement. See PPB FTEP Recruit Officer Field Training Manual, revised August 2018. Importantly, PPB’s FTEP program requires assessment of skills performance, including performance within approved policies. Id. We observed recruits at different phases of the program and various precincts. Trainers, or “coaches,” instilled programmatic knowledge and conferred more responsibility on trainees as they advanced through the phases. Trainees’ interactions that we observed included participating in two separate ECIT calls that successfully resolved with voluntary compliance. One particularly successful trainer debriefed and quizzed the recruit at the end of each interaction. The FTEP program supports PPB’s compliance with its training obligations under the Settlement Agreement.
Overall, we find that PPB’s complement of training substantially complies with Paragraph 78.
79. The Training Division shall review and update PPB’s training plan annually. To inform these revisions, the Training Division shall conduct a needs assessment and modify this assessment annually, taking into consideration: (a) trends in hazards officers are encountering in performing their duties; (b) analysis of officer safety issues; (c) misconduct complaints; (d) problematic uses of force; (e) input from members at all levels of PPB; (f) input from the community; (g) concerns reflected in court decisions; (h) research reflecting best practices; (i) the latest in law enforcement trends; (j) individual precinct needs; and (k) any changes to Oregon or federal law or PPB policy.
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Status

Substantial Compliance

Analysis

PPB continues to maintain substantial compliance with Paragraph 79. ECF 158-1. The Compliance Officer also found substantial compliance in its October 2018 review. See Sections IV and VII Report, p. 12.
This provision has two aspects: a training needs assessment and a training plan.
PPB’s Training Division finalized its most recent comprehensive training needs assessment in August 2018. See Training Division, 2018 Annual Training Needs Assessment, Aug. 2018, available at https://www.portlandoregon.gov/police/article/725855. Like prior needs assessments, the current one included a series of recommendations for potential future training. TAC recommendations, PPB training audit (designed with input from the Compliance Officer), class surveys, force and other audits, and changes in law all feed into the training needs assessment.
PPB finalized its 2019 Annual Training Plan December 2018. See Training Division, 2019 Annual Training Plan, December 2018. PPB responded to our prior recommendation and its new comprehensive training plan covers all major trainings, not just in-service training. We reviewed the plan together with the TAC recommendations and the training needs assessment. TAC’s formal training recommendations predominantly centered on self-paced instruction. See 2017 Training and Use of Force Report Recommendations, June 24, 2017, p. 3-4. PPB’s 2019 Training Plan addresses this need with direction to deliver through online training videos and training bulletins as TAC recommended. See Training Division, 2019 Annual Training Plan, December 2018, p. 3. Specifically this will include legal updates and bloodborne pathogen training, as well as unanticipated supplements that cannot be delivered through in-service training. Id. We agree with the Compliance Officer’s assessment of the training plan from the Compliance Officer’s recent reassessment of Paragraph 84(a)(i). See Remaining Issues, p. 6. The 2019 Training Plan is responsive to the 2018 Needs Assessment, specifically in its incorporation of equity, procedural justice, use-of-force decision making, and de-escalation.

Technical As we recommended previously, PPB could inform its training plan by outcomes Assistance of the Community Engagement and Outreach Plan (CEO Plan), once it is
completed. See Comments to Paragraphs 141, 146.

80. Within 180 days of the Effective Date, PPB shall develop and implement a process that provides for the collection, analysis, and review of data regarding the effectiveness of training for the purpose of improving future instruction, course quality, and curriculum. These evaluations shall measure and document student satisfaction with the training received; student learning as a result of training; and the extent to which program graduates are applying the knowledge and skills acquired in training to their jobs. This audit shall be reported to the Training Division Manager and shall include student evaluations of the program and the instructor.
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Status Substantial Compliance

Analysis

The Compliance Officer found that PPB is in substantial compliance with Paragraph 80. See Sections IV and VII Report, p. 17. COCL carefully outlines the steps PPB has taken—and we, too, have observed—to do so. Id. We agree with the Compliance Officer’s assessment.
In 2018, the Training Division provided an extensive, separate analysis of data concerning ECIT training. See Evaluation Report: 2018 Enhanced Crisis Intervention Training, Training usefulness, on-the-job applications, and reinforcing training objectives, February 2019. The Training Division assessed survey data showing broad officer support for the 2018 ECIT training.
The survey data also showed a dramatic increase in the proportion of officers who strongly agree that their supervisors are very supportive of the ECIT program, reaching 64.3% in 2018, compared to only 14.3% in 2015:

The Training Division analyzed the survey results of the police vehicle operator training and supervisory in-service training, as well. These analyses were helpful in understanding attendees’ impressions of training and its application to their jobs, though the analyses did not reach as far as the ECIT’s analysis of post-training onthe-job assessment. In all three training analyses, Training Division applied a feedback model to shape future training. This feedback loop was the intended purpose of Paragraph 80. PPB’s utilization of feedback shows PPB’s internalization of the remedy.
We reviewed surveys of Advanced Academy attendees, as well. Attendees were overwhelmingly positive in response to the content of most classes. Though most respondents agreed on the positive aspects of keeping the selected course in the curriculum, a handful of attendees chose options like “redundant” and “slightly disagree,” indicating that the survey tools could be used for critical assessment and not merely PPB self-validation.
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We directly observed PPB training and evaluations since our last report. PPB provided training materials to the Compliance Officer and DOJ in advance of training. Where either identified issues, PPB worked through those issues and honed its materials. As Paragraph 80 requires, PPB’s training included competency-based evaluations, namely: knowledge checks (i.e., quizzes on directives), in-class responsive quizzes (using clickers to respond to questions presented to the group); knowledge tests (examinations via links PPB sent to each student’s Bureau-issued iPhone); demonstrated skills and oral examination (officers had to show proficiency in first aid skills, weapons use, and defensive tactics); and scenario evaluations (officers had to explain their reasoning for choices after acting through scenarios). These were the same sort of competency-based evaluations we commended in our last report. In this monitoring period, PPB applied the same type of evaluations to supervisory-level training as well as in-service training for all sworn members.
PPB successfully has used the surveys, testing, and the training audit.

81. PPB shall ensure that the Training Division is electronically tracking, maintaining, and reporting complete and accurate records of current curricula, lesson plans, training delivered, attendance records, and other training materials in a central, commonly-accessible, and organized file system. Each officer’s immediate supervisor shall review the database for the officers under his/her command at least semi-annually.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer’s most recent assessment that the City has completed the necessary steps to come into substantial compliance with Paragraph 81. See Remaining Issues Report, p. 6.
We previously reported that PPB had acquired LMS and filled the LMS administrator position, but was working to develop full training records of all members. ECF 158-1. During this monitoring period, we interviewed the administrator and reviewed the LMS data provided. PPB had added training records and was, at that time, working on providing direct access for supervisors to their subordinates’ training records for review. Since that interview, PPB provided for supervisors’ direct access to LMS. Supervisory personnel reviews, as we discuss with respect to EIS in our evaluation of Paragraph 116, have now reached substantial compliance.
Separately, the Compliance Officer audited current LMS data. In its most recent review, the Compliance Officer found PPB had resolved a data migration issue and was able to use LMS to record all trainings. See Remaining Issues Report, p. 22. PPB members have to report training provided outside of the organization to the Training Division to ensure its recordation in LMS. This is an acceptable means of gathering these data given that the individual members, rather than the LMS administrator, are aware of the outside trainings that they attend.

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As the Compliance Officer noted, LMS does not contain exam results and class evaluations. We have reviewed class-evaluation data PPB provided in connection with Paragraph 80. PPB has kept these data in an organized and usable fashion as Paragraph 81 requires.
Accordingly, our direct observations and the Compliance Officer’s independent audits support that PPB substantially complies with Paragraph 81.

Technical Assistance

In order to make sure all sworn members receive credit in their personnel evaluations for outside training, PPB should give explicit, bureau-wide direction that members must report their records of all trainings outside of those tracked at the Training Division.
PPB’s second quarter data showed a small group of officers had not yet completed state-mandated maintenance training. PPB should use the LMS data to assure that officers who return from leave promptly complete mandatory training.

82. PPB shall report training delivered and received semi-annually to the Assistant Chief of Operations and, during the pendency of this Agreement, to DOJ.

Status

Substantial Compliance

Analysis

DOJ agrees with the Compliance Officer that PPB has maintained substantial compliance with this provision. See Sections IV and VII Report, p. 20.
PPB reported delivery of 3342.75 hours of external training and an additional 15,403 hours of internal training in the second half of 2018. See Course Attendance Summary Report, 2018 Course Attendance – External Courses July – December 2018; Course Attendance Summary Report, 2018 Course Attendance – Internal Courses July – December 2018. These records include a list of course titles, hours per course, and number of attendees.

83. PPB shall institute guidelines to govern its selection of officers that serve as trainers and shall ensure that those officers do not have a history of using excessive force. The trainer selection guidelines shall prohibit the selection of officers who have been subject to disciplinary action based upon the use of force or mistreatment of people with mental illness within the three (3) preceding years, or twice in the preceding five (5) years, and will take into account if a civil judgment has been rendered against the City in the last five (5) years based on the officer’s use of force.

Status

Substantial Compliance

Analysis

DOJ agrees with the Compliance Officer that PPB has maintained substantial compliance with this provision. See Sections IV and VII Report, p. 20.

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As described in our last two compliance assessment reports, PPB added necessary trainer selection criteria to its SOP 1-19. ECF 124-1; ECF 158-1. We also previously reported that PPB incorporated Paragraph 83’s restrictions on the selection of trainers into revised Directive 1500.00. See Dir. 1500.00, Par. 12, revised Nov. 29, 2016, available at https://www.portlandoregon.gov/police/article/526474. We reviewed Training Division Work History Review Sheets and found that none of the reviewed new instructors, including field training officers (or “coaches”), had adverse administrative findings for use of force or civil judgments based on uses of force.
84. All training that PPB provides shall conform to PPB’s current policies at the time of training. PPB shall train all officers on the Agreement’s requirements during the next in-service training scheduled.
a. With respect to patrol officers, PPB shall:
i. increase the use of role-playing scenarios and interactive exercises that illustrate proper use of force decision making, specifically including interactions with people who have or are perceived to have mental illness, including training officers on the importance and impact of ethical decision making and peer intervention;
ii. emphasize the use of integrated de-escalation techniques, when appropriate, that encourage officers to make arrests without using force;
iii. continue to provide training regarding an officer’s duty to procure medical care whenever a subject is injured during a force event, and enhance and revise training as necessary to ensure that PPB’s training in this regard is proactive and responsive to deficiencies identified by the Inspector, if any;
iv. continue to train on proactive problem solving and to utilize, when appropriate, disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, requesting specialized units, including CIT officers and mental health professionals, or delaying arrest;
v. describe situations in which a force event could lead to potential civil or criminal liability; and
vi. continue to train officers to avoid using profanity, prohibit using derogatory/demeaning labels, and also avoiding terms not currently appropriate for person-center communication, such as the term “mentals,” in all work-related settings and communications, as well as when interacting with the public.
b. With respect to supervisors, provide additional training on how to:
i. conduct use of force investigations, including the supervisory investigatory responsibilities identified in Section III.A.3;
ii. evaluate officer performance as part of PPB’s annual performance evaluation system; and
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iii. foster positive career development and impose appropriate disciplinary sanctions and non-disciplinary corrective action.

Status Substantial Compliance

Analysis

We previously found that PPB substantially complied with Paragraph 84(a), but only partially complied with subparagraph (b). ECF 158-1. With respect to subparagraph (b), we stated that PPB needed to conduct supervisory training once PPB enacted revised directives for force investigations, employee evaluations, and accountability systems. PPB enacted the revised directives in 2017-2018. See Dir. 1010.00 – Use of Force, effective Aug. 19, 2017; Dir. 1010.10 – Deadly Force and In-Custody Death Reporting and Investigation Procedures, effective September 27, 2017; Dir. 215.00 – Member Performance Evaluations, effective Feb. 28, 2018; Dir. 331.00 – Supervisory Investigations; Internal Affairs, Complaint Intake and Processing , effective Mar. 3, 2018. PPB developed lesson plans and teaching materials on the revised directives, which the Compliance Officer and DOJ reviewed and approved. The Force Inspector delivered training concerning supervisors’ force reporting and investigation obligations. The EIS administrator instructed on the use of EIS, including for employee evaluations. We observed both the 2018 and 2019 supervisory trainings, and both the substance and delivery of the trainings substantially complied with Paragraph 84.
PPB’s in-service training for all patrol officers continues to comport with the requirements of Paragraph 84(a). Nearly all lessons included scenarios of some sort, sometimes acted out in PPB’s scenario village and sometimes conducted in the classroom either by participants or through students analyzing and commenting on video-recorded scenarios. In-service training included classes covering: Tactical Emergency Casualty Care; Critical Decision Making; Control Tactics; Procedural Justice and Implicit Bias; and Electronic Control Weapons.

85. In consultation with the COCL, the Inspector shall audit the training program using the following performance standards to ensure that PPB does the following:
a. Conducts a comprehensive needs assessment annually; b. Creates a Training Strategic Plan annually; c. Within 180 days of the Effective Date, develops and implements a process for evaluation of the effectiveness of training; d. Maintains accurate records of Training delivered, including substance and attendance; e. Makes Training Records accessible to the Director of Services, Assistant Chief of Operations, and DOJ; f. Trains Officers, Supervisors, and Commanders on areas specific to their responsibilities; and g. Ensures that sworn PPB members are provided a copy of all PPB directives and policies issued pursuant to this Agreement, and sign a statement acknowledging that they
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have received, read, and had an opportunity to ask questions about the directives and/or policies, within 30 days of the release of the policy.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer’s recent assessment that PPB has demonstrated substantial compliance with this provision. See Remaining Issues Report, pp. 27-28.
We previously reported that PPB has worked with the Compliance Officer to develop an appropriate training audit to satisfy Paragraph 85, but PPB had not yet implemented the tool by the time of our last report. ECF 158-1. In this monitoring period, PPB completed the initial training audit, then, with feedback from the Compliance Officer, completed a follow-up report to that audit in November 2018. See Follow-Up Audit Report, PPB Training Division, Nov. 2018. A review of that report shows that the audit assessed and reported on each provision of Paragraph 85. The Compliance Officer found that this follow-up audit report addressed its previous concerns with LMS implementation (discussed above); with adequacy of the 2018 Needs Assessment (which we found substantially compliant, above); and with curriculum development using surveys.
Consistent with our prior technical assistance for Paragraph 85(g), PPB also implemented a directives tracking tool. The tool shows when PPB assigns newly revised directives for sworn members’ review and when the reviews are due. PPB recently enacted a revised series of directives concerning interactions with people in mental health crisis. The tracking data show over 99% of sworn members responded by the deadline acknowledging the new directives.

Technical Assistance

PPB’s next training audit should address the status of the three recommendations that the November 2018 Follow-Up Audit Report states are in progress: reallocating analysts; quality assurance of training records; and tracking expiring certifications.

86. In consultation with the COCL, the Inspector shall gather and present data and analysis on a quarterly basis regarding patterns and trends in officers’ uses of force to the Chief, the PPB Training Division, and to the Training Advisory Council. The Training Division and Training Advisory Council shall make written recommendations to the Chief regarding proposed changes in policy, training, and/or evaluations based on the data presented. The Inspector shall also, in coordination with the COCL and PSD, identify problematic use of force patterns and training deficiencies. The Chief’s Office shall assess all use of force patterns identified by the Training Division and/or Training Advisory Council and timely implement necessary remedial training to address deficiencies so identified.

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Status Analysis

Substantial Compliance
We continue to find PPB has substantially complied with Paragraph 86. The Compliance Officer found substantial compliance too. See Sections IV and VII Report, pp. 38-39.
In this monitoring period, PPB has presented TAC with force analysis reports. See, e.g., Use of Force Overview for Quarter 4 2018, available at https://www.portlandoregon.gov/police/article/712692 (presented at the March 13, 2019 TAC meeting). PPB has also distilled such data into useful presentations. See, e.g., Force Audit Team Nov. 14, 2018 presentation. This included analysis of force trends:

In May 2018, TAC issued a new list of recommendations regarding implicit bias training. See TAC Coursework Comments and Suggestions Introduction to Implicit Bias Training, May 12, 2018, available at https://www.portlandoregon.gov/police/article/699311. Similarly, in December 2018, TAC issued recommendations specific to Procedural Justice Training. See TAC Coursework Comments and Suggestions Procedural Justice Training, December 11, 2018, available at https://www.portlandoregon.gov/police/article/709399. TAC revised its self-governing bylaws in 2018. See TAC Bylaws, adopted Sept. 12, 2018, available at https://www.portlandoregon.gov/police/article/698835. TAC has not yet addressed PPB’s updated training audit. See 2019 Agendas, available at https://www.portlandoregon.gov/police/78362. Though meeting minutes show frequent interaction between TAC members and PPB, the records provided do not show a formal response to the newest TAC
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recommendations. A written response would assist in showing the Chief’s assessment of TAC recommendations and changes, if any, made in response.
Technical TAC should review PPB’s updated audit report and recommendations. Assistance We suggest that PPB respond in writing to TAC’s recommendations.

87. Training Advisory Council meetings will be open to the public unless the matter under discussion is confidential or raises public safety concerns, as determined by the Chief.

Status Substantial Compliance

Analysis

As we previously found, PPB’s Training Division and Strategic Services Division have supported TAC’s mission. ECF 158-1. Officers from each division continued to attend TAC meetings too. See TAC Meeting Minutes 2018-2019. Meeting minutes reveal a cadre of community members who have availed themselves of the public access to TAC meetings. PPB remains in substantial compliance with this provision. Id. The Compliance Officer, likewise, found substantial compliance with this provision. See Sections IV and VII Report, p. 39.

V. COMMUNITY-BASED MENTAL HEALTH SERVICES
88. The absence of a comprehensive community mental health infrastructure often shifts to law enforcement agencies throughout Oregon the burden of being first responders to individuals in mental health crisis. Under a separate agreement, the United States is working with State of Oregon officials in a constructive, collaborative manner to address the gaps in state mental health infrastructure. The state-wide implementation of an improved, effective community-based mental health infrastructure should benefit law enforcement agencies across the State, as well as people with mental illness. The United States acknowledges that this Agreement only legally binds the City to take action. Nonetheless, in addition to the City, the United States expects the City’s partners to help remedy the lack of community-based addiction and mental health services to Medicaid clients and uninsured area residents. The City’s partners in the provision of community-based addiction and mental health services include: the State of Oregon Health Authority, area Community Care Organizations (“CCOs”), Multnomah County, local hospitals, health insurance providers, commercial health providers, and existing Non-Governmental Organizations (“NGOs”) such as community-based mental health providers, and other stakeholders.

Status

Substantial Compliance

Analysis

PPB is in substantial compliance with Paragraph 88. It continues to engage community partners in the effort to bridge gaps in community-based mental health services. Through its BHU, PPB works closely in collaboration with State and County partner entities, CCOs, and community-based mental health service providers. See BHU, available at https://www.portlandoregon.gov/police/62135. The Behavioral Health Unit Advisory Committee (BHUAC), the Service

30

Coordination Team (SCT), and the Behavioral Health Response Team (BHRT) have developed and maintained positive relationships with partner organizations. The BHU regularly publicizes its efforts in quarterly newsletters. See BHU Past Newsletters, available at https://www.portlandoregon.gov/police/68896.

89. The United States expects that the local CCOs will establish, by mid-2013, one or more dropoff center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. All such drop off/walk in centers should focus care plans on appropriate discharge and community-based treatment options, including assertive community treatment teams, rather than unnecessary hospitalization.

Status

Substantial Compliance

Analysis

PPB is in substantial compliance with Paragraph 89. It has continued to work closely with the Unity Center (Unity) and its Transportation Subcommittee to facilitate transfer of individuals by ambulance to Unity and local hospital emergency rooms. PPB directives provide for such transfer and transport. See Dir. 630.45, available at https://www.portlandoregon.gov/police/article/526144; Dir. 850.20, available at https://www.portlandoregon.gov/police/article/701129.
The United States has considered Unity to meet the expectation laid out in Paragraph 89 that local CCOs establish a walk-in/drop-off center for individuals with addiction and/or behavioral health service needs. See, e.g., ECF 158 at 37. The Compliance Officer similarly considers Unity to fulfill this expectation. ECF 182-2 at 8.
Unity was not accepting new drop-off patients for part of 2018. During that time, the BHU ensured officers continued to transfer people in mental health crisis to ambulances for transport to other local hospitals. Unity confronted other serious, well-publicized challenges with respect to safe operations for clients and employees that jeopardized its funding. See Unity Center, Updates, Statements of Deficiency Reports, and Plan of Correction, available at https://www.unityfacts.org/.
In response to community member concerns and the Court’s questions, on October 2, 2018, the United States filed a status report addressing the number of people arrested at the Unity Center. ECF 191. Between January 31, 2017, and April 30, 2018, there were 30 arrests, of which 10 were current Unity patients, 5 were not patients, and 15 were discharged patients. Over that period, Unity served 8,821 individuals across 14,970 encounters, yielding an arrest rate of 0.0034. Id. at 3-4. We asked for, and PPB provided, updated arrest statistics. Between May 1, 2018, and February 28, 2019, there were 16 arrests, of which 2 were not patients and 14 were discharged patients. Over that period, Unity served 6,149 individuals across 9,844 encounters, yielding an arrest rate of 0.0026.

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Unity voluntarily provided the information the United States needed to respond to the Court’s inquiry. However, Unity is not a party to this litigation and DOJ has not evaluated the quality of service or level of care provided.
90. The CCOs will immediately create addictions and mental health-focused subcommittee(s), which will include representatives from PPB’s Addictions and Behavioral Health Unit (“ABHU”), the ABHU Advisory Board, Portland Fire and Rescue, Bureau of Emergency Communications (“BOEC”) and other City staff. These committees will pursue immediate and long-term improvements to the behavioral health care system. Initial improvements include:
a. Increased sharing of information, subject to lawful disclosure, between agencies and organizations including BOEC, Multnomah County, and health care providers to create an information exchange among first responders and providers to better serve those suffering from mental illness;
b. Creation of rapid-access clinics so those in crisis have access to timely medication management appointments;
c. Enhancing access to primary care providers to shift low-to moderate acuity patients to primary care programs creating more capacity for acute patients in existing outpatient crisis mental health systems;
d. Expanding the options and available capacity for BOEC Operators to appropriately divert calls to qualified civilian mental health providers as first responders;
e. Addressing issues of unmet needs identified by Safer PDX and its community partners;
f. Expanding and strengthening networks of Peer-Mediated services to:
i. develop a referral guide delineating these services and locations and assist with accessing information;
ii. better educate the community of the viability of these services as alternative first engagement sites/programs for those having difficulty engaging with “professional driven” services;
iii. expand peer services connected to peer supports in the community for inpatient psychiatric units (including Emergency Departments) and in the community;
iv. add peer guides to work alongside Emergency Department guides for those patients with behavioral health issues entering the Emergency Department; and
v. evaluate opportunities to expand use of peers to coordinate with PPB ABHU (as described herein) and function as a link with impacted individuals; and
g. pursue tele-psychiatry (a provision of mental health care by video conferencing) as a way for first responders to take advantage of existing IT infrastructure to provide direct care or provider evaluation supporting the provision of appropriate services to an individual in crisis.
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Status Substantial Compliance

Analysis

PPB is in substantial compliance with Paragraph 90. The BHU continues to participate in local, regional, and statewide efforts, including data-sharing initiatives and a variety of ad hoc efforts with service system partners. As discussed in Section VI, BOEC has implemented a quality assurance program that has enhanced the capacity of BOEC operators to triage calls appropriately. In 2018, BOEC participated in a pilot program that assigned a PPB Sergeant to provide real-time support and guidance to BOEC Operators. These efforts expand BOEC capacity to divert 911 calls away from police response as appropriate.

VI. CRISIS INTERVENTION
The City acknowledges that the community of consumers of mental health services, and their families and advocates, have an interest in interactions between PPB and people experiencing mental health symptoms or crises. The PPB will add new capacity and expertise to deal with persons perceived or actually suffering from mental illness, or experiencing a mental health crisis as required by this Agreement. Despite the critical gaps in the state and local mental health system, the City and PPB must be equipped to interact with people in mental health crisis without resorting to unnecessary or excessive force.
A. Addictions and Behavioral Health Unit and Advisory Committee
91. In order to facilitate PPB’s successful interactions with mental health consumers and improve public safety, within 60 days of the Effective Date, PPB shall develop an Addictions and Behavioral Health Unit (“ABHU”) within the PPB. PPB shall assign command-level personnel of at least the rank of Lieutenant to manage the ABHU. ABHU shall oversee and coordinate PPB’s Crisis Intervention Team (“C-I Team”), Mobile Crisis Prevention Team (“MCPT”), and Service Coordination Team (“SCT”), as set forth in this Agreement.

Status

Substantial Compliance

Analysis

PPB has established and maintained a Behavioral Health Unit (the BHU is the equivalent of the “ABHU” referenced in the Settlement Agreement). The BHU oversees and coordinates Enhanced Crisis Intervention Trained officers (ECIT officers are the equivalent of the “C-I Team” referenced in the Settlement Agreement), the Behavioral Health Response Teams (BHRT, the equivalent of the “MCPT” referenced in the Settlement Agreement), and the SCT, which coordinates treatment and other wrap-around services to reduce recidivism among frequent drug and property crime offenders. More information about the BHU’s operation is available on the City’s website: https://www.portlandoregon.gov/police/62135.
The BHU continues to include mobile crisis prevention teams, BHRTs, which consist of a sworn officer and a licensed mental health professional from Cascadia’s Project Respond. See Project Respond, available at https://www.cascadiabhc.org/services/crisis-intervention/#_ProjectRespond.

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BHRT successes resulted in community calls to expand the program, which the City did in 2018, funding PPB to add two new teams for a total of five teams. The BHU also includes a Coordinator for PPB’s 100-plus ECIT officers, a crime analyst, and the SCT program. In addition to managing these programs, the BHU has assisted PPB’s Training Division in providing high-quality Crisis-Intervention Training and Enhanced-Crisis-Intervention Training.
To manage the BHU, PPB continues to assign a Lieutenant responsible for coordinating the BHU’s teams, participating in the BHUAC, ensuring ECIT and BHRT officers maintain qualifications, and screening applicants to confirm they meet ECIT criteria.

92. ABHU will manage the sharing and utilization of data that is subject to lawful disclosure between PPB and Multnomah County, or its successor. PPB will use such data to decrease law enforcement interactions or mitigate the potential uses of force in law enforcement interactions with consumers of mental health services.

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to the demonstrated reliability over time of PPB’s data collection.
The BHU uses and shares data, to the extent allowable by law, to minimize law enforcement interactions and potential use of force against mental health service consumers. The BHU shares data in many ways, including: (1) by weekly reports to the Multnomah County Crisis Line from the BHU Electronic Referral System (BERS), which monitors individuals referred to BHRTs; (2) Behavioral Health Coordination Team meetings to help individuals who have frequent police contact; and (3) regular meetings between SCT and service system partners to coordinate services. As the Compliance Officer’s analysis demonstrates, these efforts have successfully minimized the frequency and improved the outcome of police contacts to the benefit of community members. ECF 182-2 at 13-15, 27, 31-32, 41-50. BHU has recently begun auditing referrals and collaborating with Portland Fire and Rescue’s CHAT (Community Healthcare Assessment Team) to develop mutual strategies for responding to citizens with frequent contacts with fire and police personnel.
PPB’s Mental Health Template for collecting data on officer encounters with community members perceived to have mental illness or experiencing mental health crisis has proven reliable over time in light of additional training and experience, and quality assurance mechanisms. We address these efforts below in Paragraph 105 and Paragraph 115.

93. ABHU shall track outcome data generated through the C-I Team, MCPT, and SCT, to: (a) develop new response strategies for repeat calls for service; (b) identify training needs; identify and propose solutions to systemic issues that impede PPB’s ability to provide an
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appropriate response to a behavioral crisis event; and (c) identify officers’ performance warranting commendation or correction.

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to PPB demonstrating reliability of its data collection efforts over time.
PPB has successfully institutionalized the Mental Health Template, which aims to collect reliable data from each qualifying mental health encounter to analyze over time. PPB’s data analysts and patrol officers report that the Template is consistently being completed and generating reliable data. PPB’s Training Division dedicated several in-service training sessions to resolving questions about the Template, with instructors providing clearer, simplified guidance. PPB continues to measure outcomes as required by this Paragraph.
The BHU continues to inform its work via multiple methods of internal data review, as discussed in the Compliance Officer’s quarterly report on Mental Health Response. ECF 182-2 at 15-16. One notable effort is a “Frequent Contact Referral” process aimed at proactively linking with mental health services an individual who is the subject of three or more ECIT-designated calls. The BHU has also created a feedback loop between itself, Training Division, and Professional Standards Division, auditing cases involving use of force against a subject with mental illness. This process should increasingly allow PPB’s internal subject matter experts to identify relevant training and policy improvements from evaluating its own officers’ experiences.
As discussed in Paragraph 104, PPB has engaged its social media platforms, flash alert list serve groups, and press release outlets to commend officers for successfully resolving calls involving a mental health component. BHU newsletters also highlight BHU operations and individual officer performance. See BHU Newsletters, available at https://www.portlandoregon.gov/police/63093. The BHUAC routinely begins meetings with success stories involving ECIT officers responding to subjects experiencing a mental health crisis, which it reports publicly in meeting minutes. See BHUAC Meeting Minutes, available at https://www.portlandoregon.gov/police/68755.

94. Within 90 days of the Effective Date, PPB shall also establish an ABHU Advisory Committee. The ABHU Advisory Committee shall include representation from: PPB command leadership, CIT, MCPT, and SCT; BOEC; civilian leadership of the City government; and shall seek to include representation from: the Multnomah County’s Sheriff’s Office; Oregon State Department of Health and Human Services; advocacy groups for consumers of mental health services; mental health service providers; coordinated care organizations; and persons with lived experience with mental health services.

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Status Analysis

Substantial Compliance
A BHUAC roster list shows that its membership includes the organizations listed in Paragraph 94, as well as additional partners. See BHU Advisory Committee Members, available at https://www.portlandoregon.gov/police/article/545177. The Compliance Officer and DOJ have observed BHUAC meetings throughout the year. BHUAC committee members continue to offer diverse perspectives and thoughtful guidance to advance the BHU’s mission.
Some members of the community have asked the BHUAC to open its meetings, or some part of its meetings, to the public. At the April 19, 2018 Status Conference, the Court echoed the inquiry. See ECF 175, Hearing Transcript, at 157:4 – 158:6. The City Attorney’s Office has advised the BHUAC that the Committee has discretion to decide the issue for itself because Oregon public meetings laws do not dictate a particular outcome for entities like the BHUAC. The BHUAC previously voted to close its meetings to the public and release public reports and minutes, but is revisiting the issue. BHUAC members have also indicated a willingness to meet with interested members of the public on a regular basis to share information and hear concerns outside of BHUAC meetings. At the BHUAC’s March 2019, the MHA made a pitch for open meetings, and the Committee will vote on the issue at its next meeting.

95. The ABHU Advisory Committee shall provide guidance to assist the City and PPB in the development and expansion of C-I Team, MCPT, SCT, BOEC Crisis Triage, and utilization of community-based mental health services. The ABHU Advisory Committee shall analyze and recommend appropriate changes to policies, procedures, and training methods regarding police contact with persons who may be mentally ill or experiencing a mental health crisis, with the goal of de-escalating the potential for violent encounters. The ABHU Advisory Committee shall report its recommendations to the ABHU Lieutenant, PPB Compliance Coordinator, COCL (as described herein), and the BOEC User Board.

Status

Substantial Compliance

Analysis

The BHUAC continues to provide informed advice to PPB. The BHUAC meeting minutes and BHUAC reports reflect the Committee’s work on issues contemplated by Paragraph 95. See BHU Minutes, available at https://www.portlandoregon.gov/police/68755; BHU Reports, available at https://www.portlandoregon.gov/police/68666. The Committee issued a summary status report in April 2018 that details recent efforts. See Portland Police Bureau Behavioral Health Unit Advisory Committee Status Report April 2018, available at https://www.portlandoregon.gov/police/article/687529.
Of note, in 2018, the BHUAC discussed systemic issues in providing mental health services and particular aspects of PPB’s mental health response model. The BHUAC addressed BOEC’s crisis triage operations, assisting in its quality assurance efforts related to ECIT dispatch. The BHUAC also monitored the

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circumstances surrounding safety concerns at the Unity Center and Unity’s inability to take new patients arriving by ambulance in July 2018. During that time, the BHUAC helped PPB ensure that ECIT and other officers continued to transfer individuals in mental health crisis to a different area hospital for services.

96. Within 240 days of the Effective Date of this Agreement, the ABHU Advisory Committee will provide status reports on the implementation of the ABHU and BOEC Crisis Triage, and identify recommendations for improvement, if necessary. PPB will utilize the ABHU Advisory Committee’s recommendations in determining appropriate changes to systems, policies, and staffing.

Status

Substantial Compliance

Analysis

The BHUAC continues to review policies, procedures, and training methods, and make recommendations for improvements to PPB and BOEC. In 2018, BHUAC made crisis triage recommendations, assisted in quality assurance measures for BOEC’s ECIT dispatch protocol, received a presentation on BHU data collection efforts, and reviewed the BHU’s standard operating procedures.

B. Continuation of C-I Program
97. PPB provides C-I Training to all its officers. C-I is a core competency skill for all sworn police officers in the City. PPB shall continue to train all officers on C-I.

Status

Substantial Compliance

Analysis

PPB has maintained auditable records of providing its crisis intervention training to all officers. This training underpins Portland’s variation on the Memphis Model, discussed in Paragraph 99.
DOJ and its expert have joined the Compliance Officer in observing PPB’s annual Advanced Academy and In-Service Crisis Intervention Training. PPB relied on community members and mental health professionals to present learning scenarios with positive effect in conveying how to recognize the signs and symptoms of a mental health crisis, and the importance of doing so.

98. PPB agrees to continue to require a minimum of 40 hours of C-I training to all officers before officers are permitted to assume any independent patrol or call response duties. Additionally, PPB shall include C-I refresher training for all officers as an integral part of PPB’s on-going annual officer training. PPB’s Training Division, in consultation with ABHU Advisory Committee, shall determine the subjects and scope of initial and refresher C-I training for all officers.

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Status Analysis

Substantial Compliance
PPB developed its crisis intervention training in consultation with the BHUAC. The Compliance Officer and DOJ observed the Fall 2018 in-service refresher training, which included procedural justice and implicit bias modules, and a scenario involving de-escalation techniques. We found the training to be high quality.

C. Establishing “Memphis Model” Crisis Intervention Team
99. Within 120 days of the Effective Date, PPB shall establish a Memphis Model Crisis Intervention team (“C-I Team”).

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to the City demonstrating the overall effectiveness of its variation on the Memphis Model.
As the Compliance Officer notes, the Memphis Model is characterized by several core competencies. Among the core features are law enforcement partnerships with advocacy groups and mental health service providers; local ownership; a volunteer group of specially trained officers comprising around 25% of the patrol division; and protocols and training for 911 call dispatchers to ensure specially trained officers respond to all pre-identified calls involving a mental health crisis. ECF 182-2 at 18; Compliance Officer 2019 First Quarter Report at 24; see also University of Memphis, Crisis Intervention Team Core Elements, available at http://www.cit.memphis.edu/information_files/CoreElements.pdf.
PPB has established an ECIT team, which consists of a volunteer group of specially trained officers comprising about 35% of PPB’s patrol force. The ECIT team operates as part of the BHU. The BHU maintains a web of interrelated partnerships with advocacy groups and mental health service providers. These characteristics are consistent with the Memphis Model’s core competencies. For a broad overview of PPB’s ECIT Program, see https://www.portlandoregon.gov/police/article/557965.
PPB’s BHU varies from the classic Memphis Model by adopting a dispatch protocol that triages mental health crisis calls, and sends ECIT officers to calls that pose a relatively greater risk of harm to the subject or others. BOEC trains its 911 call takers to recognize the signs and symptoms of a mental health crisis, and BOEC protocol requires dispatching ECIT officers when a call involves both a mental health crisis and one of seven plus-factors:
(1) The subject is violent toward others (physically combative, threatening violence, assaulting);
(2) The subject has a weapon;
(3) The subject is threatening or attempting suicide;

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(4) The call is at a mental health facility;
(5) Upon request of the caller;
(6) Upon request of a responding officer; or
(7) The subject’s behavior indicates an escalating risk of harm of self or others.
For calls that do not meet these criteria, BOEC dispatches a standard patrol officer, of which about 35% are ECIT. As noted in Paragraph 97, non-ECIT officers receive 40 hours of basic crisis intervention training. The City reports that it adopted this approach for important local historical reasons, in particular the 1992 officer involved shooting death of Nathan Thomas and the 2006 incustody death of James Chasse. In this regard, to the extent Portland’s variation on the Memphis Model arises from local ownership and PPB’s partnership with advocacy groups and mental health service providers, the BHU’s approach to mental health crisis response is substantially compliant with this Paragraph’s requirement to establish a Memphis Model crisis intervention team. We expect categories (5) and (6) to increase dispatch frequency over time. Similarly, we expect Portland’s other variation on the Memphis Model—the requirement that all officers receive 40 hours of basic crisis intervention training—to minimize adverse outcomes over time, as all PPB officers gain experience resolving calls with a mental health component. The City has laid out legitimate historical reasons for training all PPB officers to handle calls involving a mental health crisis. Among other things, these officers gain experience resolving such calls, including by direct dispatch to lower level mental health calls. The ECIT program incorporates the informed view of the BHUAC and builds off a foundation of community support. In sum, the City has justified the BHU’s triage approach based on local needs and with input from community partners.
In response to guidance from DOJ (see Technical Assistance Letter and Provisional Approval of Directive 850.20 Letter, available at https://www.justice.gov/crt/file/847046/download; ECF 182-2 at 59-62) and the Compliance Officer (ECF 182-2 at 18-20), and in an attempt to increase the number of mental health-related calls to which ECIT officers directly dispatch, PPB and BOEC revised BOEC’s dispatch protocol a second time in April 2018, adding category (7). At that time, the Compliance Officer and DOJ shared the view that ECIT officers would gain additional valuable expertise by handling a higher volume of calls involving a mental health crisis. In a March 2018 report, the City responded to DOJ’s provisional approval of Directive 850.20, analyzing Mental Health Template data to show the effectiveness of Portland’s crisis response model. The report covered a five-month period and showed positive outcomes, particularly as to reduced use-of-force incidents. The data also showed BOEC received 1,159 calls that met ECIT-dispatch criteria (1) through (6). The Compliance Officer and DOJ shared the view that the City should broaden its triage criteria to capture more calls involving a mental health crisis, which it did by adding ECIT-dispatch category (7) in collaboration with PPB and BOEC, and
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input from BHUAC. See BHUAC Report, Mar. 28, 2018, available at https://www.portlandoregon.gov/police/article/684347.
In April 2018, BOEC trained its personnel on the meaning and purpose of the new dispatch category. Over the ensuing months, PPB collected and analyzed data. PPB and BOEC also implemented effective quality assurance measures to audit the ECIT program.
In December 2018, the City supplemented the March 2018 report, with six months of new ECIT program data under the expanded dispatch criteria. The City reported an increase in ECIT dispatches, with BOEC receiving 1,877 calls that met ECIT-dispatch criteria (1) through (7). The City also reported generally positive outcomes in terms of reduced use-of-force incidents, without regard to whether the responding officer was ECIT trained. PPB also compared ECIT and non-ECIT patrol officer mental health call outcomes to measure the sufficiency of its triage approach to ECIT dispatch. It specifically examined outcomes in calls for service with a mental health component that do not meet ECIT criteria, evaluating whether ECIT officers obtained better results than did non-ECIT officers. The data showed no statistically significant difference in terms of transport to jail. Notably the use of force numbers were so low as to preclude meaningful statistical analysis. Over the six-month period from April 1 to September 30, 2018, PPB reports 13,559 service encounters involving a mental health component and 28 uses of force among them, or about one-fifth of one percent of the cases. For comparison, over the five-month period from April 25 to September 30, 2017, PPB reported 22 uses of force over 8,939 calls for service involving a mental health component. A descriptive analysis of the force cases has shown overall appropriate interactions and no material difference in outcome. Finally, PPB and BOEC quality assurance mechanisms have demonstrated the availability of feedback mechanisms to identify issues, enhance training, and further develop the Portland Model of law enforcement response to mental health crises.
In response to the City’s 2018 report, and in consultation with expert consultants, DOJ approved Directive 850.10 – Police Response to Mental Health Crisis. See Dir. 850.20, available at https://www.portlandoregon.gov/police/article/701129. The policy emphasizes de-escalation and disengagement, when appropriate, and connecting people with services such as transport by ambulance to hospital as opposed to by police cruiser to jail.
Technical The City, through BOEC and PPB, should continue to implement quality Assistance assurance mechanisms based on periodic analyses of the efficacy of the dispatch
criteria and relevant training, including with respect to outcomes such as force.
100. PPB’s C-I Team shall be comprised of officers who volunteer for assignment to the C-I Team. The number of C-I Team members will be driven by the demand for C-I Team services, with an initial goal of 60-80 volunteer, qualified officers.
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Status

Substantial Compliance

Analysis

PPB’s ECIT team of volunteer officers exceeds the initial goal of 60-80 volunteer members. As of December 2018, PPB had 146 officers with active ECIT certification, of which 130 are uniformed officers. ECIT patrol officers cover the range of shifts and precincts.
Data from the Mental Health Template show ECIT officers are arriving at 73 percent of calls to which BOEC directly dispatches them. Most calls in which an ECIT officer was not on scene are explained by the officer being called off or cleared before they could arrive on scene (68%), e.g., because the situation resolved due to medical transport.
PPB has implemented ongoing quality assurance mechanisms to ensure the demand for ECIT services aligns with the number of trained ECIT officers. In August 2018, PPB trained and certified 16 new officers as volunteer members of the ECIT team. The consistent interest of new recruits in the ECIT program is a testament to PPB highlighting its effective work.

101. No officers may participate in C-I Team if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of C-I Team service, or during C-I Team service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the C-I Team.

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to revisions PPB made to its standard operating procedures that define ECIT officer qualifications.
PPB continues to assign a Lieutenant to manage the BHU, including the team of ECIT volunteers. The BHU Lieutenant sits on the BHUAC, which has advised PPB on ECIT team qualifications. See BHUAC Meeting Minutes, Jan. 24, 2018, available at https://www.portlandoregon.gov/police/article/677674. The BHU Lieutenant solicits feedback from supervisors on all applicants for the ECIT program, and receives notice of EIS flags or internal investigations for all ECIT officers.
The BHU has now fully implemented Standard Operating Procedure #3-2 to enforce qualification, selection, and ongoing participation requirements for the ECIT team, as required by this Paragraph. SOP #3-2 makes clear that an officer may not participate in the ECIT program if the officer has been subject to disciplinary action based on a sustained allegation of force or misconduct against a person with mental illness in the previous three years. To date, no ECIT officer has become ineligible to participate in the program for this reason.

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102. PPB shall specially train each C-I Team member before such member may be utilized for C-I Team operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for C-I Team members consistent with the Memphis Model.

Status

Substantial Compliance

Analysis

PPB continues to provide special training for new ECIT team members. See Covelli, Emma, et al., “2014 Enhanced Crisis Intervention Training, Training Usefulness, Implementation and Monitoring of Training Objectives, and Future Training Needs,” available at https://www.portlandoregon.gov/police/article/557965. All ECIT officers continue to receive annual refresher training. PPB’s Training Division continues to publish reports evaluating its enhanced crisis intervention training. See Training Division Evaluation Reports, available at https://www.portlandoregon.gov/police/73428. The 2018 evaluation report is online (see Enhanced Crisis Intervention Team Evaluation Report, Mental Health Partnership Effectiveness, February 2018, available at https://www.portlandoregon.gov/police/article/686016); the 2018 Evaluation Report has been published and provided to DOJ, but was not online as of March 31, 2019. These Reports lay out the ECIT training curriculum, which emphasizes de-escalation and communication and incorporates input from mental health professionals and consumers of mental health services. PPB’s ECIT training is consistent with the Memphis Model and substantially complies with this Paragraph.
The BHU continues to demonstrate its commitment to effective, engaging training. In February 2018, DOJ joined the Compliance Officer in observing a one-day refresher training for ECIT officers. Of note, this training addressed various concerns about the Mental Health Template and included an effective presentation on individuals living with autism. In August 2018, DOJ observed part of the BHU’s weeklong ECIT certification training for 16 new officers. The training was interactive and effective. It included local psychiatric professionals, mental health providers, family advocates, mental health consumers, and BHU staff. Officers engaged in scenarios and tabletop group work, as well as lectures.

103. C-I Team members will retain their normal duties until dispatched for use as a C-I Team. BOEC or PPB may dispatch C-I Team members to the scene of a crisis event.

Status

Substantial Compliance

Analysis

ECIT officers continue to retain their normal duties until BOEC sends them to a call that meets ECIT-dispatch criteria. As described in Paragraph 99, BOEC’s dispatch protocol sends ECIT officers to the scene of a call that involves a mental health crisis and one of seven “plus-factors,” criteria the City has determined is a rough proxy for relative risk of harm.

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BOEC’s dispatch criteria include whenever the caller or another PPB officer requests an ECIT officer at the scene, satisfying this Paragraph’s requirement that both BOEC and PPB be able to dispatch ECIT members to the scene of a crisis event. PPB trains all of its officers on the ECIT program’s existence and purpose, as well as the ability to call on an ECIT officer to assist in resolving a call involving a mental health component.

104. PPB will highlight the work of the C-I Team to increase awareness of the effectiveness of its work.

Status

Substantial Compliance

Analysis

PPB has reported various efforts to highlight the work of ECIT officers. BHU members participate in numerous outreach events and programs, which it publicizes in a regular BHU newsletter. See BHU Newsletter, available at https://www.portlandoregon.gov/police/63093. BHUAC meeting minutes reflect PPB’s deliberate effort to promote BHU success stories with community advocates and service providers that sit on the Committee. See BHU Minutes, available at https://www.portlandoregon.gov/police/68755. The BHU website also publicizes BHU activities, including information on BHU components and links to mental health resources. See BHU, available at https://www.portlandoregon.gov/police/62135.
As reported in BHUAC Minutes and BHU Newsletters, BHU officers have intervened to save multiple lives this year, and dozens since being formed, from depressed and suicidal citizens to armed citizens experiencing a mental health crisis. See, e.g., BHU Newsletter, at 1-3 (Mar. 2019), available at https://www.portlandoregon.gov/police/article/727781. BHU officers deserve commendation for their successful outcomes.

105. For each crisis event to which a C-I Team is dispatched, the C-I Team member shall gather data that ABHU shall utilize to track and report data on public safety system interactions with individuals with perceived or actual mental illness or who are in crisis. These data shall include:
a. Date, time, and location of the incident; b. Subject’s name, age, gender, and address; c. Whether the subject was armed, and the type of weapon; d. Whether the subject is a U.S. military veteran; e. Complainant’s name and address; f. Name and DPSST number of the officer on the scene; g. Whether a supervisor responded to the scene; h. Techniques or equipment used;

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i. Any injuries to officers, subject, or others; j. Disposition; k. Whether a mental health professional responded to the scene; l. Whether a mental health professional contacted the subject as a result of the call; and m. A brief narrative of the event (if not included in any other document).

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to the demonstrated reliability over time of PPB’s data collection efforts.
PPB’s Mental Health Template captures the enumerated criteria. Officers have used the Template to collect data for 23 months, since April 2017. PPB analysts can use this data to identify BHU trends and adapt to changing community needs and circumstances. The data has proven reliable, and quality assurance mechanisms have verified reliability over time. We share the Compliance Officer’s assessment that PPB has substantially complied with this Paragraph. ECF 182-2 at 23-24; Compliance Officer 2019 First Quarter Report at 25-26.
The rollout of the Mental Health Template faced technical difficulties and user interface issues. Supervisor in-service training and ECIT refresher training resolved many concerns, illustrating the type of positive feedback loop between training and operations that can increasingly improve the BHU. Template issues also confirmed the benefit of having systematic quality assurance mechanisms in place to identify and address issues that arise in the field.
PPB leadership have repeatedly emphasized the importance of data collection efforts to broader organizational goals, including during training, at roll-call presentations, and in discussions with supervisory chains of command. As a result, Mental Health Template responses have been more consistently producing reliable data. From August 2017 (23.6%) to January 2018 (12.8%) the error rate for Template responses halved. For the 12-month period between March 2018 and February 2019, the error rate noticeably shrunk (average ~3.7%), reflecting the efforts of PPB’s leadership. See Compliance Officer 2019 First Quarter Report at 26.

D. Mobile Crisis Prevention Team
106. PPB currently has an MCPT comprised of a two-person team, one sworn officer and one contractor who is a qualified mental health professional. Within 120 days of the Effective Date, City shall expand MCPT to provide one MCPT car per PPB precinct.

Status

Substantial Compliance

Analysis Each PPB precinct continues to have a MCPT, now BHRT. A BHRT is comprised of a sworn ECIT officer and a Cascadia Project Respond staff member.

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See Project Respond, available at https://www.cascadiabhc.org/services/crisisintervention/#_ProjectRespond.
BHRT successes resulted in increased community demand, and City Council agreed to increase the budget to expand from three to five BHRTs. PPB filled the two new positions in the latter half of 2018. Additional information about the BHRT program is available on the City’s website: https://www.portlandoregon.gov/police/article/458966.

107. Each MCPT car shall be staffed by one sworn PPB officer and one qualified mental health professional. MCPT shall be the fulltime assignment of each such officer.

Status

Substantial Compliance

Analysis

PPB staffs every BHRT with one sworn PPB officer and one mental health professional, a clinician from Cascadia’s Project Respond. See Project Respond, available at https://www.cascadiabhc.org/services/crisisintervention/#_ProjectRespond. The PPB-Cascadia collaboration merits the national recognition it has received. It has filled some gaps in the mental health system by connecting individuals with community partners and necessary services.

108. No officers may participate in MCPT if they have been subject to disciplinary action based upon use of force or mistreatment of people with mental illness within the three years preceding the start of MCPT service, or during MCPT service. PPB, with the advice of the ABHU Advisory Committee, shall define criteria for qualification, selection, and ongoing participation of officers in the MCPT.

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to revisions PPB made to its standard operating procedures that define ECIT officer qualifications.
The BHU has fully implemented Standard Operating Procedure #3-2. The BHU Lieutenant and Sergeants enforce the qualification, selection, and ongoing participation requirements for BHRT officers, as required by this Paragraph. SOP #3-2 makes clear that an officer may not participate in the BHRT program if the officer has been subject to disciplinary action based on a sustained allegation of force or misconduct against a person with mental illness in the previous three years. To date, no BHRT officer has become ineligible to participate in the program for this reason.

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109. PPB shall specially train each MCPT member before such member may be utilized for MCPT operations. PPB, with the advice of the ABHU Advisory Committee, shall develop such training for MCPT members.

Status

Substantial Compliance

Analysis

PPB reports that BHRT officers attended ECIT training, as well as external training in the local area and greater region. BHRT members attended Applied Suicide Intervention Skills Training (“ASIST”), threat assessment training, the CIT International Conference, and Mental Health Investigation and Examiner Training. New BHRT officers have completed training previously recommended by the BHUAC.

110. MCPT shall utilize C-I Team data to proactively address mental health service, in part, by connecting service recipients with service providers.

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to the demonstrated reliability over time of PPB’s data collection efforts.
PPB can now draw on 23 months of data from the Mental Health Template, covering tens of thousands of police encounters with a call for service involving a mental health component. PPB reports that the BHU is running queries on Mental Health Template data to identify repeat contacts, audit BERS referrals, connect repeat homeless contacts with services, and follow up with past referrals. BHU also continues to monitor trends in calls for service at mental health treatment facilities in order to identify needs.
As the Compliance Officer reports, a qualitative and quantitative assessment of BHRT operations shows it has reduced the number of arrests among community members accepted for BHRT intervention. Moreover, the BHRT is using Mental Health Template data to connect frequent police contacts to service providers. ECF 182-2 at 26, 41-45 (concluding that the “BHRT is operating as intended under Par. 110 and positively contributes to the City’s system of mental health response”).

111. Within 180 days of the Effective Date, PPB, with the advice of the ABHU Advisory Committee, shall develop policies and procedures for the transfer of custody or voluntary referral of individuals between PPB, receiving facilities, and local mental health and social service agencies. These policies and procedures shall clearly describe the roles and responsibilities of these entities and of MCPT officers in the process.

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Status

Substantial Compliance

Analysis

PPB has maintained the relevant policies, originally enacted in 2017, including Directives 850.21 – Peace Officer Custody (Civil) (available at https://www.portlandoregon.gov/police/article/701141); 850.22 – Police Response to Mental Health Director Holds and Elopement (available at https://www.portlandoregon.gov/police/article/701145); and 850.25 – Police Response to Mental Health Facilities (available at https://www.portlandoregon.gov/police/article/701147). Additionally, DOJ approved Directive 850.20 – Police Response to Mental Health Crisis, which provides for officers to use AMR ambulances to transport individuals to hospitals where appropriate in response to mental health needs. See Dir. 850.20, available at https://www.portlandoregon.gov/police/article/701129.

E. Service Coordination Team
112. The Service Coordination Team (“SCT”), or its successor, shall serve to facilitate the provision of services to individuals who interact with PPB that also have a criminal record, addictions, and highly acute mental or physical health service needs.

Status

Substantial Compliance

Analysis

PPB reports that the SCT program continues to serve its designated population, providing access to supportive housing, intensive case management, medical care, addiction and mental health treatment. The SCT has collaborated with Central City Concern, the Law Enforcement Assisted Diversion (LEAD) program, the Community Peace Collaborative, the Downtown Public Safety Action Committee, the JOINT Officer of Homeless Services, PPB’s Neighborhood Response Teams, and Cascadia. The SCT has received national recognition for its successes, including at the 2018 Police Executive Research Forum. The SCT also presented at the 2018 CIT International Conference.
As the Compliance Officer reports, a qualitative and quantitative assessment shows the SCT has reduced the number of arrests among community members accepted for SCT participation, as well as increased levels of employment and housing. ECF 182-2 at 26, 45-50 (concluding that the “SCT is a valuable component of the City’s overall response to mental health” that “reduced arrests/custodies, improved employment, and improved housing,” such that “SCT is operating in accordance with the letter and the intent of the Settlement Agreement).

F. BOEC 113. Within 120 days of the Effective Date, BOEC and PPB, with the advice of the ABHU Advisory Committee, shall complete policies and procedures to triage calls related to mental health issues, including changes to protocols for assigning calls to Multnomah County Crisis Call
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Center, and adding new or revised policies and protocols to assign calls to the PPB ABHU or directly to NGOs or community-based mental health professionals.

Status

Substantial Compliance

Analysis

BOEC is the City’s 911 emergency call dispatch entity. See 911 Bureau of Emergency Communications, available at https://www.portlandoregon.gov/911/. The BHUAC has advised BOEC on triaging calls involving mental health issues, and has reviewed BOEC protocols for assigning calls to BHU officers and the Multnomah County Crisis Line (MCCL). See Mental Health Crisis Intervention, available at https://multco.us/mhas/mental-health-crisis-intervention. MCCL also fields calls from PPB officers, and has the ability to call Cascadia’s Project Respond to the scene of a crisis event. See Project Respond, available at https://www.cascadiabhc.org/services/crisis-intervention/#_ProjectRespond.
BOEC enacted relevant protocols in early 2014, and has revised them slightly over time, particularly with respect to ECIT dispatch. BOEC reports that the system for transferring calls to the MCCL continues to function as intended.
The BHUAC has also advised PPB on its Directive 850 series of policies. See Dirs. 800 – Arrest/Detentions/Court, available at https://www.portlandoregon.gov/police/67859.

114. Within 180 days of the Effective Date, the City will complete training of all BOEC Dispatchers in Crisis Triage. The City, with the advice of the ABHU Advisory Committee, shall develop ongoing training for BOEC Dispatchers.

Status

Substantial Compliance

Analysis

In coordination with PPB and BHUAC, BOEC has designed training to refresh basic content and reflect updates to BOEC protocols. BOEC regularly trains its call takers and dispatchers on policies and procedures, including crisis triage. BOEC developed a 16-hour crisis intervention training specifically for call takers and dispatchers, and presented its curriculum at the 2018 CIT International Conference in Kansas City, Missouri. See “It All Begins at 9-1-1,” available at http://www.citinternational.org/resources/Documents/It%20all%20begins%20at %209-1-1;%20Developing%20DispatcherFocused%20CIT%20Training%20in%20Portland,%20OR.pptx. BOEC delivered its in-service training in April 2018 and again in April 2019. The Compliance Officer and DOJ reviewed training lesson plans and materials, and provided feedback, which BOEC has incorporated. The Compliance Officer and DOJ also observed the most recent BOEC in-service training on April 10, 2019. Among other things, topics included application of the updated ECIT dispatch protocol, defining mental health crisis, and risks of escalating harm. We found the training effective, emphasizing the importance of dispatching ECIT officers to mental health crisis calls that involve a serious risk of harm to self or others. Overall,

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BOEC training has been of good quality. Students and instructors have shown motivation to learn and commitment to improve.
BOEC’s efforts merit commendation. BOEC personnel have adapted to protocol changes, trained and retrained on new and changing concepts, and discharged their mission-critical role effectively.

115. Within 180 days of the Effective Date, the City shall ensure Crisis Triage is fully operational to include the implementation of the policies and procedures developed pursuant to the above paragraph and operation by trained staff.

Status

Substantial Compliance

Analysis

This assessment has improved since DOJ’s last compliance report due to the demonstrated reliability over time of PPB’s data collection efforts.
BOEC continues to successfully transfer appropriate calls to the MCCL, and send ECIT officers to calls meeting the dispatch criteria. BOEC has implemented quality assurance procedures to learn from the experience of its call takers and dispatchers. BOEC’s quality assurance efforts have drawn on the expertise of PPB analysts and the BHUAC in auditing calls involving a mental health crisis. BOEC also continues to provide its personnel with regular, comprehensive training, in coordination with the BHUAC.
We agree with the Compliance Officer’s assessment that PPB’s data collection efforts substantially comply with the Settlement Agreement given PPB’s “continued use of the Mental Health Template, their implementation of Supervisor In-service training related to the [Template], PPB and BOEC’s use of a unified dataset, and PPB’s implemented system for evaluating unanswered mental health indicators.” See Compliance Officer 2019 First Quarter Report at 27. The Mental Health Template continues to collect increasingly useful data.
PPB’s BHU continues to implement the City’s approach to crisis triage through ECIT officers, BHRTs that pair an ECIT officer with a mental health clinician to connect people with frequent law enforcement contacts to services, and the SCT, which addresses the intersection of addiction, unemployment, homelessness, and law enforcement contacts.
Together, BOEC and PPB have worked diligently, with City and community partners, to increase the level of service provided to people experiencing a mental health crisis. PPB has reduced the number of force cases and increased the number of people it has connected with services.

VII. EMPLOYEE INFORMATION SYSTEM 116. PPB has an existing Employee Information System (“EIS”) to identify employees and design assistance strategies to address specific issues affecting the employee. See PPB Manual 345.00. PPB agrees to enhance its EIS to more effectively identify at-risk employees,
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supervisors and teams to address potentially problematic trends in a timely fashion. Accordingly, within 90 days of the Effective Date, PPB shall:
a. Require that commanders and supervisors conduct prompt reviews of EIS records of employees under their supervision and document the review has occurred in the EIS performance tracker;
b. Require that commanders and supervisors promptly conduct reviews of EIS for officers new to their command and document the review has occurred in the EIS performance tracker; and
c. Require that EIS staff regularly conduct data analysis of units and supervisors to identify and compare patterns of activity.

Status

Substantial Compliance

Analysis

PPB achieved substantial compliance with Paragraph 116 during this monitoring period. The requirements had been enshrined in policy, but that had not ensured compliance. See Dir. 345.00 – Employee Information System, Par. 2.2; Dir. 215.00 – Member Performance Evaluation, Par. 2.1; cf. ECF 158-1. With clear direction in the 2018 supervisory in-service training, however, PPB directed supervisors to conduct EIS reviews of their subordinates. PPB now reports nearly 100% compliance with timely reviews of EIS records of subordinates, supervisors, and units as required by Paragraphs 116(a)-(c):

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As the Compliance Officer points out, though, credit also goes to the EIS administrator who now distributes monthly reminders to supervisors whose subordinates require an EIS review. See Sections IV and VII Report, p. 47.
Paragraph 166(a) and (b) speak to the individual reviews. PPB now has conducted these individual reviews at close to 100% of the opportunities to perform appropriate and timely reviews. Paragraph 116(c) speaks to supervisory and unitlevel reviews. While PPB completed these with the same these level of success— nearly 100% of the opportunities to appropriately and timely perform—how they did those reviews is the topic of our analysis of Paragraph 117, below.
As the Compliance Officer points out, and we agree, Paragraph 116 requires not only that PPB review the triggers but that PPB use EIS to “more effectively identify at-risk employees.” PPB’s threshold closure rate dropped from 94% in 2015, fourth quarter to 37% in 2018, second quarter. See Remaining Issues Report, p. 40. The threshold closure rate refers to how often the EIS system reaches a threshold—such as an officer who has used force in 20% of his or her arrests in the past six months—but PPB determines not to send an alert to the officer’s supervisor. This could be for legitimate reasons, like a redundant alert for the exact same threshold throughout a six-month period. However, the reasons were sometimes not so clear, like PPB’s prior decision to close alerts based on complaints. PPB has now overruled this prior decision, leading in part to this lower closure rate. This 94%-to-37% decrease is significant. PPB has maintained since the second quarter of 2018 a consistent use of the threshold triggers to advance the information to the Responsible Units for their use.
The Compliance Officer conducted a very helpful analysis to assess whether the supervisory in-service training affected the rate at which supervisors processed rather than declined EIS alerts. See Remaining Issues Report, p. 41. The Compliance Officer’s analysis found a greater than 50% increase in coded intervention rates—the rate of supervisors using the EIS alerts to speak with officers—following the training (19.6% (for the time period 2017 Q3 to 2018 Q2) to 33.7% (for 2018 Q3 and Q4)). Id. We agree with the Compliance Officer that the training encouraging use of and de-stigmatizing EIS likely contributed to the increase. Id. This change also makes the EIS system “more effective” as Paragraph 116 intends.
Based on the significant and consistent improvement, we agree with the Compliance Officer’s most recent assessment that PPB has reached substantial compliance with Paragraph 116. See Remaining Issues Report, p. 43.

117. PPB agrees to use force audit data collect data necessary to conduct similar these analyses at supervisor- and team-levels.” (Amended by ECF 171.)

Status

Substantial Compliance

Analysis At the time of our last report, the parties had only recently agreed to a change in the Settlement Agreement, which the Court later approved. ECF 171. Because

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this change substantively affected what the Settlement Agreement required that we monitor, we rated Paragraph 117 “pending” in anticipation of PPB producing new data for the revised provision. ECF 158-1.
Since our last report, for supervisory and unit-level reviews, PPB implemented an approved SOP that provides for the use of the Force Inspector’s data to identify outliers as compared with peer supervisors and groups. See SOP 47. PPB worked closely with the Compliance Officer and DOJ to develop the revised SOP. In this reporting period, PPB has shown implementation of the SOP. The above-described supervisory in-service training instructed on the use of EIS as a whole. PPB began the supervisor and unit-level reviews in Fall 2018. PPB produced a series of memoranda from the EIS administrator memorializing direct meetings between the Force Inspector and patrol commanders. Among other things, the Inspector identified the shifts with the highest levels of force in the precincts, and the Sergeants and Lieutenants with the largest number of deficiencies identified in their reviews of uses of force. The Force Inspector went further than analysis of force reports; he identified deficiencies in compliance with PPB’s pursuit policy, where those existed. For each issue the Force Inspector identified, he also recommended corrective actions. Accordingly, PPB has reached agreement on how to implement Paragraph 116’s requirements for supervisor and unit-level reviews, promulgated SOP 47 to do so, and executed on that plan with self-critical analysis. We agree with the Compliance Officer that PPB has achieved substantial compliance with Paragraph 117. See Remaining Issues Report, p. 45.

118. PPB shall continue to use existing thresholds, and specifically continue to include the following thresholds to trigger case management reviews:
a. Any officer who has used force in 20% of his or her arrests in the past six months; and
b. Any officer who has used force three times more than the average number of uses of force compared with other officers on the same shift.
119. Within 90 days of the Effective Date, PPB shall add one additional threshold to trigger case management review any officer who has three uses of force in a one-month period.

Status Substantial Compliance

Analysis

PPB remains in substantial compliance with Paragraphs 118 and 119. ECF 158-1. The Compliance Officer likewise found that PPB continues substantial compliance with these paragraphs. See Sections IV and VII Report, p. 51.
Early during the Settlement Agreement implementation, PPB implemented the thresholds required by these paragraphs. Now, PPB uses the EIS more effectively. PPB has trained supervisors on EIS use and PPB has increased the frequency with which the EIS administrator sends alerts to supervisors and with which supervisors record substantive responses to those alerts. With the increased use of EIS, the

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thresholds added pursuant to the Settlement Agreement should be more meaningful over time to identify at-risk officers.
PPB also produced graphs that distill EIS threshold alert and processing data, one of which we show below. These data show two things with respect to Paragraphs 118 and 119. First, the data show that PPB’s EIS administrator, in fact, has generated alerts based on the added force thresholds that are built into the system. Second, the data show reduction in “white noise” since adopting a modified threshold for level IV uses of force. There was a discernable spike in force threshold alerts as PPB implemented Directive 1010.00 with a definition of force level IV—the lowest level, resisted handcuffing in many cases—consistent with the Settlement Agreement. We heard the concern that this threshold change caused “white noise” in the system, i.e., EIS generated so many alerts based on low-level events that those alerts drowned out the more significant alerts coming through the system. Accordingly, we reached agreement that PPB continue counting all those level IV uses of force in EIS, but count level IV uses as .5 compared with other uses of force. This made the system more effective—consistent with Paragraph 116’s mandate—by focusing on significant threshold breaks, but still tracking the frequency of level IV uses of force.

Technic al Assistan ce

Consistent with our past monitoring reports, PPB should continue to identify triggers that are more effective as it hones its analytical abilities and determines which data become the best predictors of behavior that places officers or civilians at risk of adverse actions.

120. Within 90 days of the Effective Date, PPB shall identify and train a second EIS administrator. This individual may be assigned to other tasks within the Professional Standards Division or as otherwise needed.
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Status

Substantial Compliance

Analysis

We agree with the Compliance Officer that PPB has reached substantial compliance with Paragraph 120. See Sections IV and VII Report, pp. 51-52. We previously expressed concern that PPB’s EIS staff needed the ability to conduct analysis to be effective. ECF 158-1. PPB now has met this need, as the Compliance Officer reported, by utilizing analysts from the Professional Standards Division. Id. The work product now produced by the EIS staff—supplemented by the Force Inspector with respect to supervisor and unit-level reviews— demonstrates PPB has embraced a self-critical analysis to identify risky behavior as an early intervention system should be able to do to avert, where possible, poor outcomes. PPB has also finalized an extensive handbook detailing how an administrator should use EIS and describing the system’s functional capabilities. See PPB, Employee Information System, EIS Administrator Handbook, undated. This, too, is significant because it preserves the institutional memory instructing future EIS administrators how to operate the system.

VIII. OFFICER ACCOUNTABILITY
PPB and the City shall ensure that all complaints regarding officer conduct are fairly addressed; that all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. The City and PPB seek to retain and strengthen the citizen and civilian employee input mechanisms that already exist in the PPB’s misconduct investigations by retaining and enhancing IPR and CRC as provided in this Agreement.
169 (formerly 172). PPB shall apply policies uniformly and hold officers accountable for complying with PPB policy and procedure. (Amended by ECF 171.)

Status

Partial Compliance

Analysis

Section VIII requires that the City’s accountability system meet four criteria: (1) all investigative findings are supported by a preponderance of the evidence; (2) all findings are documented in writing; (3) officers and complainants receive a fair and expeditious resolution of complaints; and (4) all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. ECF 158-1. Paragraph 169 (formerly 172) addresses the fourth criterion. Id. Similar to the Compliance Officer’s findings over 2018 and into 2019, we now find that timeliness still hinders the City’s ability to reach substantial compliance with Section VIII.
In its March 2019 report, the Compliance Officer found that: “our review of case files indicates that, barring rare exceptions, findings are consistently supported by a preponderance of the evidence. Furthermore, data from the Administrative Investigation Management (AIM) database show that the majority of complaints are “fairly addressed” . . . [and] both IPR and PPB take allegations of

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misconduct seriously and are willing to engage in a fuller investigation.” See Compliance and Outcome Assessment Report: Section VIII Officer Accountability and Section IX Community Engagement and Creation of Portland Committee on Community Engaged Policing, p. 13-14 (Sections VIII and Section IX Report), available at https://static1.squarespace.com/static/5a319f76a9db0901e16c6433/t/5c7e1ebd24 a694d3df701e32/1551769321244/Compliance+and+Outcome+Assessment+Rep ort++Accountability+and+Community+Engagement+FINAL+with+appendices.pdf.
The Compliance Officer also found: “Based on our review of [Supervisors Investigations (SIs)] and full administrative investigations, we believe that officers are most often held ‘accountable for complying with PPB policy and procedure’ (Par. 169).” Id. at 14. We independently assessed a sample of full administrative investigations and SIs. Based on or review, we agree with both of the Compliance Officer’s conclusions.
However, the Compliance Officer also found that the City’s and PPB’s ability to substantially comply with the broad accountability requirements set forth in Section VIII “is diminished primarily by the non-expeditious resolution of community- and Bureau-initiated complaints.” Id. at 15. We agree.
As described with respect to Paragraph 123, below, the City has implemented action plans to address failures to meet the 180-day deadline for completion of administrative investigation findings. Nonetheless, the City has not yet come into compliance with Paragraph 121’s 180-day deadline requirement. As of the fourth quarter of 2018, PPB completed 77% of its IA investigations within 180 days. Some of its investigations, however, were substantially overdue—two of them by more than 100 days. Some of the City’s changes to meet the deadline— specifically pertaining to Bureau of Human Resources (BHR)—are so recent that there is not sufficient data to assess the adequacy of the City’s effort. We find that City has neared substantial compliance with the timeliness requirement, but cannot demonstrate substantial compliance, yet.
That is not to say that the City failed to make substantial progress complying with Section VIII in this monitoring period. As outlined below, the City has implemented approved accountability policies. These address both: (a) administrative investigation of allegations of wrongdoing, and (b) administrative assessments of serious uses of force. The City has embraced a self-critical analysis to improve the accountability system. For example, during this monitoring period, there was an administrative investigation in which a PPB member retired before IPR interviewed the member. IA 2018-B-0022. The member’s absence from the interview undercut IPR’s ability to investigate an underlying complaint. However, IPR and PPB could not find sufficient evidence to support that the member had received affirmative notice of the interview. Id. This led to a not sustained finding. Id. In a helpful and self-critical fashion, though, the PPB finding in that case included a recommendation that, in the future, IPR and IA provide personal, i.e., face-to-face, notifications to PPB
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members to secure their interviews before separating from PPB. Id. We recommend that PPB and IPR implement that recommendation.
Technical We recommend that PPB and IPR implement the recommendation that IPR and Assistance IA provide personal, i.e., face-to-face, notifications, if subjects or witnesses for
an administrative investigation may become unavailable.

A. Investigation Timeframe
121. PPB and the City shall complete all administrative investigations of officer misconduct within one-hundred eighty (180) days of receipt of a complaint of misconduct, or discovery of misconduct by other means. For the purposes of this provision, completion of administrative investigations includes all steps from intake of allegations through approval of recommended findings by the Chief, including excluding appeals, if any, to CRC. Appeals to CRC shall be resolved within 2190 days. (Amended by ECF 171.)
123. If PPB is unable to meet these timeframe targets, it shall undertake and provide to DOJ a written review of the IA process, to identify the source of the delays and implement an action plan for reducing them.

Status

Partial Compliance

Analysis

Like the Compliance Officer, we continue to find the City in partial compliance with administrative-investigation-timeframe requirements. See Sections VIII and Section IX Report, p. 15-16.
We also agree with the Compliance Officer that PPB has substantially complied with providing action plans to reduce the timeframes for administrative investigations as required by Paragraph 123. See Sections VIII and Section IX Report, p. 16. As the Compliance Officer points out, Paragraph 123 applies only to PPB, not IPR or BHR. Id. However, if IPR or BHR do not meet their investigative deadlines, they then delay the PPB’s ability to timely complete administrative investigations as required. Accordingly, we have directly monitored IPR and BHR timeliness during this monitoring period. We attended in person or telephonically several weekly meetings IPR conducted with its investigative staff. In these meetings, among other things, IPR addressed the need for timely completion of IPR’s steps in the investigative process, including review by intermediate supervisors. We also monitored the lack of timeliness of BHR complaints. The City recently provided the United States information concerning BHR’s outstanding investigations and action plans intended to expedite future BHR investigations. Previously, BHR would issue a report and findings on the alleged violation of Human Resources Administrative Rule (HRAR) 2.02, while IA or PPB’s RU Manager would issue a separate report and findings on any alleged violation of Bureau directives. Given past delays with the BHR portion of those investigations, going forward IA will write the findings report in consultation with BHR. This will eliminate the need for two separate reports. The City intends this to shorten administrative investigation timeframes for the handful

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of cases each year that concern HRAR 2.02. It is too soon to determine if this plan will be effective.
Even though IA and IPR have improved the timeliness of the early administrative steps of investigations opened in 2018, See Remaining Issues Report, pp. 47-48, investigative timeframes have suffered from a backlog of a handful of older cases that continue to consume administrative resources. Among the administrative investigations that we assessed, we found that IA, IPR, and BHR have continued to work on cases for a year or more. For example, BHR had a case open for over 800 days before recently reaching a finding that there was no basis to support a potential violation of HRAR 2.02. In another case, PPB reached findings in August 2017 stemming from a 2016 complaint, and then did not impose discipline until January 2018. The City’s ability to comply with Paragraph 121’s 180-day deadline is improving, but the need to catch up on these old cases has hindered the City’s ability to comply. As the City clears these older cases, the decreased backlog should help the City come closer to substantial compliance.
PSD has reported to PPB’s Chief that some of the late administrative investigation in 2018 were due to: concurrent criminal investigations; access to emails necessary for investigations; and scheduling of or attendance at Police Review Boards. See Memo from CMDR Jeff Bell to Chief Daniel Outlaw, Jan. 22, 2019. These types of issues will reoccur and require planning to comply the Settlement Agreement’s 180-day deadline.
Technical The City must address specific, surmountable problems PSD has identified, e.g., Assistance coordination with concurrent criminal investigations, access to information
technology records, and scheduling of members for Police Review Boards, which are hindering compliance with the 180-day deadline. We look forward to continuing to work with the City and the Compliance Officer to develop strategies for investigative timeliness.

122. PPB shall conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a concurrent criminal investigation, or as otherwise provided by law, or as necessary to meet the CRC or PRB recommendation to further investigate.

Status

Substantial Compliance

Analysis

Like the Compliance Officer, we agree that PPB has substantially complied with the requirement to bring concurrent criminal and administrative investigations, subject to tolling. See Sections VIII and Section IX Report, p. 16.
As with prior monitoring periods, PPB reports on the specific internal affairs investigations it initiates and the corresponding dates of any parallel criminal investigation. See PPB Quarterly Update Report, Par. 122, Jan. 6, 2019. The City consistently initiated administrative investigations concurrently with criminal

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investigations. Id. Even when conducting an administrative investigation involving a senior PPB member, PPB simultaneously investigated a criminal allegation of missing property. 2018-B-0017.
We note, though, that PPB identified the tolling necessary for some criminal investigations as the cause of those investigations exceeding the 180-day deadline. See Memo from CMDR Jeff Bell to Chief Daniel Outlaw, Jan. 22, 2019. In order to permit Paragraph 122’s tolling provision to be effective, we have determined that PPB may exclude from the calculation of its timeliness those small number of administrative investigations for which PPB has appropriately documented a legitimate law enforcement need to toll the administrative investigation.

B. On Scene Public Safety Statements and Interviews
124. Within 90 days of the Effective Date, the City and PPB shall review its protocols for compelled statements to PSD and revise as appropriate so that it complies with applicable law and current professional standards, pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). The City will submit the revised protocol to DOJ for review and approval. Within 45 days of obtaining DOJ’s approval, PPB shall ensure that all officers are advised on the revised protocol.

Status

Substantial Compliance

Analysis

Like the Compliance Officer, we find that PPB has substantially complied with Paragraph 124. Sections VIII and Section IX Report, p. 17. Directive 1010.10 and SOP 7 – Deadly Force and In-Custody Death Investigations and SOP 30 – Concurrent Administrative/Criminal Investigations, as now implemented, substantially comply with Paragraph 124.
At the time of our last monitoring report, PPB had only recently enacted Directive 1010.10, and the City had only recently reached agreement on the SOPs for investigating OISs with the District Attorney. See ECF 158-1. As we described in the training section, above, during this monitoring period, PPB implemented Directive 1010.10 through supervisory-specific in-service training. And, as described in the force section, above, in our review of a sample of closed officer-involved-shooting files from this monitoring period (2018-B-0023, 2018B-0014), we have found that PPB implemented Directive 1010.10 with fidelity to the approved policy and Paragraph 124.

125. Separation of all witness and involved officers to lethal force events is necessary in order to safeguard the integrity of the investigation of that event. Immediately following any lethal force event, PPB shall continue to issue a communication restriction order (“CRO”) to all witnesses and involved officers, prohibiting direct or indirect communications between those officers regarding the facts of the event. The CRO will continue, unless extended further, until the conclusion of the Grand Jury or, if no Grand Jury is convened, until a disposition is determined by the District Attorney.

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Status Substantial Compliance

Analysis

We agree with the Compliance Officer’s assessment that the one incident of failing to timely identify a witness officer does not remove PPB from substantial compliance with Paragraph 125, particularly since PPB caught and remedied the mistake. Sections VIII and Section IX Report, pp. 17-18 (noting that PPB issued CRO to that previously unidentified witness officer 20 days after the OIS event when the administrative investigation identified the officer as a witness).
As we described in the force section, above, in our review of a sample of officer-involved-shooting cases from this monitoring period, we found that PPB complied with the requirement to issue CROs. In incident 2018-B-0023, narrative descriptions of the scene describe sequestration of involved and witness officers before formal CROs issued. Among the documents PPB provided are both the written CROs and corresponding rescinding orders following the investigation. Though PPB did not have the authority to issue a CRO to an involved MCSO deputy, PPB notes that MCSO issued its own CRO to the involved deputy. Documentation PPB provided shows MCSO issued a similar CRO and rescinded the CRO only after the grand jury returned a no true bill. Accordingly, PPB complied with the Settlement Agreement obligations to abide by Directive 1010.10 and the Settlement Agreement’s provisions to protect the integrity of an officer-involved-shooting investigation. In incident 2018-B-0014, while the incident was still unfolding, after the first officer fired at the subject, the supervisor removed and sequestered that officer, i.e., beginning the CRO process. Subsequent written CROs, in that incident, likewise complied with Paragraph 125.

126. PPB shall continue to require witness officers to lethal force events to give an on-scene briefing to any supervisor and/or a member of the Detective Division to ensure that victims, suspects, and witnesses are identified, evidence is located, and provide any information that may be required for the safe resolution of the incident, or any other information as may be required.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer that PPB has continued the required practice of directing witness officers to provide on-scene briefings. See Sections VIII and Section IX Report, p. 17. The anomalous failure to identify a lone witness officer in one event, referenced in our analysis of Paragraph 125, also does not remove PPB from substantial compliance with Paragraph 126. Id. at 16-17. PPB caught the mistake and self-corrected by issuing a CRO when PPB identified the witness. Id.
Similar to the officer-involved-shooting incidents we reviewed in our last monitoring report, in both officer-involved-shooting events we reviewed during this monitoring period, a witness officer provided an on-scene briefing sufficient to ensure the safe resolution of the events. See 2018-B-0014, 2018-B-0023. Cf.

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ECF 148-1. And like the last monitoring period, PPB’s voluminous files for these incidents, identify victims, suspects, and witnesses, and catalogue relevant evidence. Id.

127. In agreement and collaboration with the Multnomah County District Attorney, PPB shall request that involved officers in lethal force and in-custody death events provide a voluntary, onscene walk-through and interview, unless the officer is incapacitated.

Status

Substantial Compliance

Analysis

Like the Compliance Officer, we find PPB has continued to seek walk-throughs and interviews from involved officers at lethal force events. See Sections VIII and Section IX Report, p. 18. In the two, officer-involved-shooting events that we reviewed, PPB asked the involved officers to provide voluntary on-scene walk-throughs and interviews, and the officers declined. See 2018-B-0014, 2018-B-0023.

C. Conduct of IA Investigations
128. Currently, both IPR and PPB’s PSD have authority to conduct administrative investigations, provided that IPR interview of PPB Officers must only be conducted jointly with IA. Within 120 days of the Effective Date, the City will develop and implement a plan to reduce time and effort consumed in the redundant interview of witnesses by both IPR and IA, and enable meaningful independent investigation by IPR, when IPR determines such independent investigation is necessary.

Status

Substantial Compliance

Analysis

Based on the effective implementation of independent investigations, the City has reached substantial compliance with Paragraph 128. Since our last monitoring report, IPR and PPB have implemented directives that largely mirror one another. DOJ, along with the Compliance Officer, reviewed and provided substantive feedback to curriculum for joint IPR/IA training to implement these directives. DOJ, like the Compliance Officer, attended the joint training sessions and provided timely feedback to both IPR and PPB to encourage interactions between investigators from both agencies during the training. PPB also ensured that investigators with each agency who began their employment following the joint training session received the same training by video. Thus, there is continuity of training among all investigators from both agencies on the proper implementation of approved policies and procedures. Whether a PPB member is subject to investigation by IPR or IA, the accused members and the complainant should have confidence that either independent investigations by IPR or internal investigations by IA should result in the same credible findings. Both agencies should employ similar investigative skill and

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process, and any findings should result from application of the same standards of proof, i.e., a finding supported by a preponderance of evidence.
During this monitoring period, we reviewed a sample of completed IPR investigations reports, including investigations of senior PPB staff. Our review showed that IPR implemented its protocols that now enable IPR to conduct fulsome independent investigations and reach recommended findings.
In its April 2, 2019 draft report, the Compliance Officer noted improvements in IPR’s and PPB’s formation of allegations and the resources consumed by supervisory investigations, but still assigned a conditional substantial compliance rating to this provision. See Remaining Issues Report, pp. 50-52. The Compliance Officer criticized what it called systemic complaints masquerading as individual complaints. See Sections VIII and Section IX Report, p. 19. By “systematic,” the Compliance Officer was referring to complaints about how PPB does its law enforcement work, generally, and for which individual officers do not exercise discretion. Complainants may better address systemic complaints to PPB administration or other City agencies. IPR and PPB could increase their efficiencies, reduce the time spent investigating such systemic issues, and increase public confidence in the accountability systems, if—as the Compliance Officer suggests—IPR and IA could better funnel such systemic issues to the City agencies capable of providing a remedy to systemic issues. Notwithstanding this opportunity for further improvement, our above-described assessment shows IPR and IA have effectively implemented independent investigations.

Technical Assistance

In order to make investigations more meaningful and reduce unnecessary time spent on complaints for which the administrative investigation process cannot offer an adequate remedy, the City should consider diverting system complaints to the City agencies capable of addressing such issues, e.g., to City Council for complaints about resources or to PPB’s executives for consideration of law enforcement priorities.

129. The City and PPB shall ensure that all allegations of use of excessive force are subject to full and completed IA investigations resulting in findings, unless there is clear and convincing evidence to IPR that the allegation has no basis in fact.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer that the City is in substantial compliance with this provision. See Sections VIII and Section IX Report, pp. 19-20. We also agree with the Compliance Officer that PPB adequately addressed through training that supervisors’ after action reviews do not take the place of full administrative investigations if there is an allegation of excessive force. Id. at 20.

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We separately reviewed a sample of completed administrative investigations involving allegations of use of excessive force. In the cases we sampled, a preponderance of the evidence contained in the complete administrative record supported the administrative finding for the force allegations where IA or IPR reached a sustained, exonerated, or unfounded finding. Where the record did not indicate a preponderance of evidence, IA or IPR appropriately reached a not sustained finding. None of our sample revealed that PPB had encouraged IPR to reduce or eliminate force allegations.

130. The City and PPB shall continue to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.

Status

Partial Compliance

Analysis

We do not yet have sufficient data to show that the City has substantially complied with the requirements of Paragraph 130. Although PPB and IPR have revised the relevant directive, 310.20, and trained personnel on its enforcement, the City has not yet demonstrated that it conducts timely and effective investigations of alleged retaliation. As we discussed with respect to Paragraphs 121 and 123, BHR has failed to complete timely investigations, including those involving retaliation. The City closed older investigations and, for new investigations, now requires IA to write the findings report in consultation with BHR. The City has not produced completed BHR investigations under its newly enacted protocol for joint IA/BHR investigations. Given the recent changes to BHR and the recently closed investigations that involved BHR, we do not yet have data to demonstrate implementation of Directive 310.20 and thus cannot yet support substantial compliance with Paragraph 130.

Technical The City should produce complete records of closed BHR investigations and of Assistance new IA/BHR investigations completed under the City’s revised scheme of IA
drafting investigative reports with BHR’s participation.

131. The City and PPB shall retain Police Review Board procedures currently utilized for purposes of investigation and making recommended findings on administrative complaints, except as outlined below:
a. Currently, seven voting members of the PRB review use of force incidents, including two citizen members. When PRB reviews uses of force case, one of the two citizen member slots shall be drawn from the Citizen Review Committee members.
b. The CRC slot on the PRB in use of force cases will rotate among the CRC membership so that different CRC members participate on the PRB. Within 60 days of the Effective Date, the Auditor shall develop a membership rotation protocol.

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c. All members participating in the PRB must maintain confidentiality and be able to make thoughtful, unbiased, objective recommendations to the Chief of Police and Police Commissioner that are based on facts, consistent with PRB city code provisions and “just cause” requirements set forth in Portland City Charter, City rules, and labor agreements.
d. Cases in which the member elects, with the concurrence of the Chief and the Police Commissioner, to accept the investigative findings and recommended discipline. This option will only be available to a member following implementation of code language which shall require at a minimum a full investigation of the alleged misconduct, issuance of the investigative findings, and concurrence with the findings by the Independent Police Review, the Professional Standards Division and the member’s Branch Chief. The scope of cases eligible for stipulated discipline shall be identified in the authorizing code, and cases involving alleged used of excessive force, cases involving alleged discrimination, disparate treatment or retaliation, reviews of officer involved shootings and in-custody deaths, and cases in which the Chief or the Police Commissioner does not agree to accept the member’s proposed stipulation to findings and recommended discipline shall not be eligible for stipulated findings and recommended discipline. (Added by ECF 171.)
e. All community members and CRC members must meet the following qualifications to participate on the PRB:
i. Pass a background check performed by the Bureau.
ii. Participate in Bureau training to become familiar with police training and policies, including the PRB process.
iii. Sign a confidentiality agreement.
iv. Participate in ride-alongs to maintain sufficient knowledge of police patrol procedures.
f. Current city code provides that the City Auditor and the Chief have authority to recommend to City Council the removal of citizen members from the PRB pool. Likewise, the City Auditor or Chief shall have authority to recommend to City Council removal of a CRC member from serving on the PRB. The Chief or the City Auditor may recommend that City Council remove a community member or member of the CRC from the pool for the following reasons:
i. Failure to attend training;
ii. Failure to read Case Files;
iii. Objective demonstration of disrespectful or unprofessional conduct;
iv. Repeated unavailability for service when requested;
v. Breach of confidentiality;
vi. Objective demonstration of bias for or against the police; or
vii. Objective demonstration of conflict of interest.
g. Removal from participation in the PRB shall not affect CRC membership.
h. Like current PRB citizen members, CRC members serving on the PRB may serve in that capacity for no more than three (3) years.
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i. A CRC member who participates in a PRB review shall recuse himself/herself during any later appeal of the same allegation(s) to the CRC.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer that the City has moved from partial to substantial compliance with Paragraph 131. See Sections VIII and Section IX Report, p. 21. Both the Compliance Officer and DOJ previously reported that the City memorialized the substantial requirements of Paragraph 131 in PPB Directive 336.00 – Police Review Board, which PPB has since revised. See Dir. 336.00, available at https://www.portlandoregon.gov/police/article/674632 (currently under periodic review); City Code 3.20.140, available at https://www.portlandoregon.gov/citycode/article/707196.
As the Compliance Officer points out, however, Portland’s City Code 3.20.140 still does not contain the explicit requirement of Paragraph 131(a): “When PRB reviews uses of force case[s], one of the two citizen member slots shall be drawn from the Citizen Review Committee members.” Id. Instead, the revised City Code only places a CRC member on a PRB in these force cases: officer involved shootings, physical injury caused by an officer that requires hospitalization, in custody deaths, and any use of force where the recommended finding is “out of policy.” See 3.20.140 Police Review Board, Sec. (C)(2), available at https://www.portlandoregon.gov/citycode/article/707196. Yet a PRB may be convened based on (a) “controverted” findings or discipline, or (b) Chief, Branch Chief, or IPR Director discretion. See 3.20.140, Sec. (B)(1). The City should close this loophole. Because a PRB is unlikely to convene under these circumstances, however, we do not remove the City from substantial compliance.
Like the Compliance Officer, we observed PRBs over the course of the implementation of the Settlement Agreement. This past year, as before, in our observation, the composition of PRB included two community members, one of whom was also a CRC member.

Technical We agree with the Compliance Officer that, even with a substantial compliance Assistance rating based on compliant practice, the City should conform City Code 3.20.140
to Paragraph 131(a) without limitation to type of force.

132. By majority vote, the PRB may request that investigations of misconduct be returned to its investigating entity, i.e. PSD or IPR, to complete the investigation as to factual matters necessary to reach a finding regarding the alleged misconduct. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the PRB explaining why additional time is needed.

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Status Analysis

Substantial Compliance
We agree with the Compliance Officer that the City is in substantial compliance with this provision. See Sections VIII and Section IX Report, p. 21. We also agree with the Compliance Officer that PPB has incorporated Paragraph 132’s requirement in PPB Directive 336.00 – Police Review Board, section 4.7, and PPB has put this requirement into practice.

133. If an officer’s use of force gives rise to a finding of liability in a civil trial, PPB shall: (1) enter that civil liability finding in the EIS; (2) reevaluate the officer’s fitness to participate in all current and prospective specialized units ; (3) if no IA investigation has previously been conducted based upon the same allegation of misconduct and reached an administrative finding, conduct a full IA investigation with the civil trial finding creating a rebuttable presumption that the force used also violated PPB policy, which presumption can only be overcome by specific, credible evidence by a preponderance of evidence; (4) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, identify whether any new evidence exists in the record of the civil trial to justify the reopening of the IA investigation, and if so, reinitiate an IA investigation; and (5) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, and no new evidence from the civil trial justifies reopening the IA investigation, work with IPR to identify the reason why the administrative finding was contrary to the civil trial finding and publish a summary of the results of the inquiry.

Status

Substantial Compliance

Analysis

PPB had no civil liability findings during the past year that would have triggered the application of this provision. We agree with the Compliance Officer that the City is in substantial compliance with this provision through implementation of SOPs 32 and 42, which incorporate the requirements of Paragraph 133. See Sections VIII and Section IX Report, p. 22.

D. CRC Appeals
134. The City shall expand the membership of the CRC to 11 members, representative of the many and diverse communities in Portland, who are neutral, unbiased, and capable of making objective decisions. The quorum of CRC members necessary to act may remain at its existing level.

Status

Substantial Compliance

Analysis

The City memorialized CRC membership expansion as required by Paragraph 134 in City Code 3.21.080, available at https://www.portlandoregon.gov/citycode/article/479665. We agree with the Compliance Officer that the City still is in substantial compliance with this provision. See Sections VIII and Section IX Report, p. 22.

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135. The City and PPB agree that the CRC may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.
136. In its review process for purposes of the appeal, the CRC may make one request for additional investigation or information to the investigating entity, i.e. PSD or IPR at any point during its review. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the CRC explaining why additional time is needed. The request for additional investigation or information may contain multiple points of inquiry, but no follow-up requests will be permitted. The additional request be voted on by a quorum, the members voting must have read the Case File in order to vote, and any request with multiple points of inquiry must be prioritized.

Status

Substantial Compliance

Analysis

CRC’s governing regulations reflect the requirements of Paragraphs 135 and 136. See ECF 158-1.
We agree with the Compliance Officer that the City is in substantial compliance with these provisions. See Sections VIII and Section IX Report, p. 23.
The revised CRC regulations, which we previously cited for compliance with these paragraphs, have not changed since November 20, 2015. See PSFD 5.03, revised Nov. 20, 2015, available at https://www.portlandoregon.gov/citycode/?c=27455&a=9030. The regulations provide that CRC “may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.” The City has long established substantial compliance with these provisions. In this monitoring period, CRC returned an administrative investigation for further investigation. PPB completed that further investigation, albeit pushing the timeframe beyond the 180-day deadline.

E. Discipline
137. Within 60 days of the Effective Date, PPB and the City shall develop and implement a discipline guide to ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors and to provide discipline that is reasonably predictable and consistent.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer that the City is in substantial compliance with this provision. See Sections VIII and Section IX Report, pp. 23-24.
In prior reports, we pointed out that PPB has given effect to current Directive 338.00, which implements PPB’s Discipline Guide (available at http://www.portlandoregon.gov/police/article/488981?). ECF 158-1. As the

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Compliance Officer reported, PPB revised the Discipline Guide in February 2018. And, like the Compliance Officer, we observed PPB’s July 2018 supervisory inservice training in which PPB instructed on the use of the Discipline Guide.
Our independent review of PPB’s disciplinary recommendation memos shows consistent consultation with the Discipline Guide. Supervisors’ recommended actions in those memos also are consistent with the levels of discipline outlined in the Discipline Guide.

F. Communication with Complainant and Transparency
138. Within 180 days of the Effective Date, the City shall enhance its existing website to ensure that a complainant can file and track his or her own complaint of officer misconduct.
139. Within 120 days of the Effective Date, the City shall review its protocols to ensure that the City shares with complainants requested documentation about his or her own complaint to the extent permitted by law.
140. The City shall ensure that IPR provides each complainant a tracking number upon receipt of the complaint, informs each complainant of the complaint classification, assignment (precinct or IA) and outcome of the complaint (sustained, unproven, etc.) in writing (whether mail, email/text, or fax), including information regarding whether the City took any corrective action. The City Attorney’s Office shall determine whether disclosures regarding corrective action are required on a case-by-case basis consistent with Oregon’s Public Records Law.

Status

Substantial Compliance

Analysis

We agree with the Compliance Officer that IPR continues to substantially comply with the communication requirements of Paragraphs 138-140. See ECF 158-1; Sections VIII and Section IX Report, pp. 24-25.
In our review of administrative investigations that closed over the past year, each investigative file in our sample included letters to the complainant explaining the results of the investigation and the appeal process. The same IPR website on which we previously reported continues to allow complainants to check the status of their complaints by entering their complaint number or the complainant’s identifying information. See IPR Complaint Status Request Form, available at http://www.portlandonline.com/auditor/index.cfm?c=64452.

IX. COMMUNITY ENGAGEMENT AND CREATION OF PORTLAND COMMITTEE ON COMMUNITY ENGAGED-POLICING
There is significant community and City interest in improving PPB’s community relationships. The community is a critical resource. Soliciting community input regarding PPB’s performance, while also enhancing PPB’s current community outreach efforts, will promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety.

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141. To leverage the ideas, talent, experience, and expertise of the community, the City, in consultation with DOJ, shall establish a Portland Committee on Community Engaged-Policing (PCCEP), within 90 days of the Effective Date of the relevant amendments to this Agreement.

Status

Substantial Compliance4

Analysis

After it became apparent that the Community Oversight Advisory Board (COAB) framework was not achieving the goals of the Settlement Agreement, the City developed and implemented a new framework for community engagement: the Portland Committee on Community-Engaged Policing (PCCEP).
The PCCEP improves on COAB’s structure while maintaining its defining characteristics. It has authority to “independently assess the Settlement Agreement,” and created a subcommittee for that express purpose. See PCCEP Plan, Sec. II, available at https://www.portlandoregon.gov/wheeler/article/698091. PCCEP has organized into five committees: (1) a steering committee; (2) a settlement agreement and policy subcommittee; (3) a subcommittee for people with mental illness; (4) a youth subcommittee; and (5) a subcommittee addressing race, ethnicity, and other groups. See PCCEP Subcommittees, available at https://www.portlandoregon.gov/pccep/78723. PCCEP formed these subcommittees after input from the public, including members of the amici groups, the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC) and the Mental Health Alliance (MHA).
PCCEP’s members have demonstrated ideas, talent, experience, and expertise in community-police relations. PCCEP meetings have included listening sessions, learning sessions, and committee business. The PCCEP has generally met quorum requirements, consistently performed work required by the PCCEP Plan and the Settlement Agreement, and accomplished tasks it has set out for itself.
To date, the PCCEP has drafted, discussed, and adopted four recommendations, to which the City has timely responded in writing. PCCEP recommendations have a designated tab on its website, as do PCCEP meeting agendas and minutes, and a PCCEP library with other relevant documents, including presentations received by the PCCEP. See PCCEP Reports and Recommendations, available at https://www.portlandoregon.gov/pccep/78991; PCCEP Meeting Minutes/Agendas, available at https://www.portlandoregon.gov/pccep/78093; PCCEP Library, available at https://www.portlandoregon.gov/pccep/78095.
The PCCEP’s experience has not been without challenges, as noted in its first quarterly report. See PCCEP Quarterly Report, Number 001, Approved March 26, 2019, available at https://www.portlandoregon.gov/pccep/article/727535. However, PCCEP members, in collaboration with City staff, have willingly and

4 At the October 4, 2018 Status Conference, the Court suggested that the United States and the Compliance Officer should evaluate the City’s compliance with Section IX as if the Court had given final approval of the stipulated proposed Section IX amendments, see ECF 157. ECF 176, Hearing Transcript, at 128:19 - 129:11.
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capably resolved difficult issues to date and we are confident that they will continue to do so.

142. The PCCEP shall be authorized to: (a) solicit information from the community and the PPB about PPB’s performance, particularly with regard to constitutional policing; (b) make recommendations to the Chief, Police Commissioner, the Director of the Office of Equity and Human Rights, and community and, during the effective period of this Agreement, to the DOJ; (c) advise the Chief and the Police Commissioner on strategies to improve community relations; (d) contribute to the development and implementation of a PPB Community Engagement Plan; and (e) receive public comments and concerns. The composition, selection/replacement process and specific duties of the PCCEP shall be set forth in a separate Plan for Portland Committee on Community-Engaged Policing (“the PCCEP Plan”) which shall be substantially similar to Exhibit 1 to this Agreement. Amicus AMAC and Intervenor PPA shall be consulted regarding and DOJ shall review and approve any amendments to the PCCEP Plan proposed to occur during the effective period of this Agreement.

Status

Substantial Compliance

Analysis

The PCCEP Plan provides the PCCEP with authority to perform each of the enumerated tasks. See PCCEP Plan, available at https://www.portlandoregon.gov/wheeler/article/698091.
In September 2018, the City amended the Plan, consulting with Amicus AMAC and Intervenor Portland Police Association (PPA) as required. The particular changes to the Plan responded to concerns voiced by these entities and the broader community. DOJ approved the amendments as required. Of note, the changes reserved seats for two high school-aged youth and allowed for Subcommittees that hold public meetings.
The PCCEP has begun to discharge these tasks, soliciting information from the community and PPB about PPB’s performance at monthly PCCEP meetings, recommending concrete actions to City leaders, and receiving public comment and concern during several open Committee and Subcommittee meetings. The PCCEP has met with PPB’s Chief, Office of Equity and Human Rights’ Director, and PPB’s Office of Equity and Diversity.
Through its subcommittees, the PCCEP is beginning to contribute to the development and implementation of PPB’s Community Engagement Plan. See PCCEP Subcommittees, available at https://www.portlandoregon.gov/pccep/78723. PPB’s leadership is engaging the PCCEP in this task.
The PCCEP’s replacement process has worked to date, with three members (two adult and one youth) being replaced promptly after they resigned from the PCCEP for various personal reasons.

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143. PCCEP’s membership will come from a reasonably broad spectrum of the community. PCCEP members shall not have an actual or perceived conflict of interest with the City of Portland.

Status

Substantial Compliance

Analysis

As the Compliance Officer recounts in detail at pp. 27-30 of its Fourth Quarter Report on Section IX of the Settlement Agreement, the PCCEP selection process incorporated deliberate and effective measures to ensure a diverse, experienced, and committed group applied, interviewed, and were selected to be PCCEP members. This process was fair and produced a diverse slate of qualified members and alternates. The PCCEP website catalogs member biographies. See PCCEP Member Bios, available at https://www.portlandoregon.gov/pccep/article/705718.
Since the October onboarding process, the PCCEP has had two adult members and one youth member resign for personal reasons. The City timely appointed replacement members from the initial alternate pool as required by the Plan. The Mayor’s Office appointed alternates in line with PCCEP’s recommendations. See, e.g., PCCEP Recommendation Number 001, Dec. 17, 2018, available at https://www.portlandoregon.gov/pccep/article/727014.

144. The City shall provide administrative support so that the PCCEP can perform the duties and responsibilities identified in this Agreement and in the PCCEP Plan.

Status

Substantial Compliance

Analysis

The City has invested substantial resources to support the PCCEP, including a devoted staff assistant, contract facilitation services, and meeting locations. The City has provided operational and logistical support, office space, multimedia and technical services, and secretarial support. The PCCEP website reflects the effort of PCCEP members and administrative support staff. See Portland Committee on Community-Engaged Policing, available at https://www.portlandoregon.gov/pccep/. The relationship between City staff and the PCCEP has been professional and productive.

145. To ensure constitutional policing, to closely interact with the community to resolve neighborhood problems, and to increase community confidence, PPB shall work with City resources knowledgeable about public outreach processes and the PCCEP to improve its engagement with the community.

Status

Substantial Compliance

Analysis

PPB has engaged the community independently and through relevant City resources knowledgeable about public outreach. As catalogued by the Compliance Officer at pp. 37-42 of its Fourth Quarter Report on Section IX of

70

the Settlement Agreement, PPB is involved in an impressive array of engagement and outreach activities. PPB’s recently created Office of Community Engagement has outlined current efforts in a presentation to PCCEP. See Portland Police Bureau, “Community Engagement and Inclusion Available,” available at https://www.portlandoregon.gov/pccep/article/726822 PPB has laid out its goals and justifications for community engagement in a dedicated section its 5-year Strategic Plan. Id.
PPB’s work with the PCCEP has just begun. To date, the relationship has been collaborative and productive. PPB leadership has attended each PCCEP meeting, presenting and answering questions at many. As the PCCEP develops recommendations for PPB’s Community Engagement Plan, engages PPB’s universal review process for directives, see Overview: Directives Review and Development Process, available at https://www.portlandoregon.gov/police/59757, and otherwise discharges its responsibilities under the Plan, PPB must continue to work with the PCCEP to improve its engagement with the community. S

146. Within 120 days of the effective date of the relevant Amendments to this Agreement, the City, in consultation with the PCCEP, will conduct another reliable, comprehensive and representative survey of members of the Portland community regarding their experiences with and perceptions of PPB’s community outreach efforts and accountability efforts and where those efforts could be improved, to inform the work of the PCCEP and the development and implementation of the Community Engagement Plan.

Status

Partial Compliance

Analysis

The City engaged the same professional survey research group that conducted the 2015 and 2016 surveys, DHM, to conduct a representative survey in 2019, with input from PCCEP.
The survey was finalized in January 2019. Data collection is complete. Survey data analysis and the final report are expected to be available in May.

147. PPB shall continue to collect appropriate demographic data for each precinct so that the Precinct Commander, considering any input from the PCCEP, may develop outreach and policing programs specifically tailored to the residents of the precincts. The data shall also be provided to PCCEP to inform its work.

Status

Substantial Compliance

Analysis

PPB has collected the demographic data required by this Paragraph. As detailed by the Compliance Officer at pp. 43-45 of its Fourth Quarter Report on Section IX of the Settlement Agreement, PPB’s Precinct Commanders use this demographic data to tailor outreach efforts. PPB provided this information to the PCCEP on March 20, 2019.

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148. PPB shall continue to require that officers document appropriate demographic data regarding the subjects of police encounters, including the race, age, sex and perceived mental health status of the subject, and shall provide such information to the PCCEP and make such information publicly available to contribute to the analysis of community concerns regarding discriminatory policing. PPB shall consider enhancements to its data collection efforts, and report on its efforts to enhance data collection to the DOJ by no later than December 31, 2013, and quarterly thereafter.

Status

Substantial Compliance

Analysis

PPB has collected and made publicly available on its website the demographic data required by this Paragraph. See Stops Data Collection, available at https://www.portlandoregon.gov/police/65520. PPB has provided this information to the PCCEP. PPB continues to report quarterly to DOJ on its data collection enhancement efforts.

149. The COCL, PPB, and DOJ will jointly develop metrics to evaluate community engagement and outreach. PCCEP may review these metrics and may suggest additional metrics to DOJ and PPB.

Status

Partial Compliance

Analysis

Over the course of meetings in January and February 2019, the Compliance Officer, PPB, and DOJ jointly developed a preliminary list of metrics to evaluate community engagement and outreach. That list was provided to the PCCEP Steering Committee in early April. The PCCEP is considering how to develop recommendations for additional metrics.

Technical PPB will need to consider PCCEP’s feedback in collaboration with the Assistance Compliance Officer and DOJ, and finalize metrics to evaluate community
engagement and outreach.

150. Annually, PPB shall issue a publicly available PPB Annual Report, which shall include a summary of its problem-solving and community policing activities. A draft of the Annual Report shall be provided to the PCCEP for review and comment before the report is finalized and released to the public. Once released, PPB shall hold at least one meeting in each precinct area and at a City Council meeting, annually, to present its Annual Report and to educate the community about its efforts in community policing, in regard to the use of force, and about PPB’s policies and laws governing pedestrian stops, stops and detentions, and biased-free policing, including a civilian’s responsibilities and freedoms in such encounters.

Status

Partial Compliance

Analysis

PPB released its 2017 Annual Report in December 2018, after providing a draft to the PCCEP for review and comment. See PPB 2017 Annual Report Summary of Accomplishments, available at

72

https://www.portlandoregon.gov/police/article/711973. The PCCEP provided comments and made formal recommendations for PPB’s 2018 Annual Report, including to release it in a more timely fashion and to hold the requisite meetings for 2017 and 2018 together. See PCCEP Recommendation Number 004, Feb. 26, 2019, available at https://www.portlandoregon.gov/pccep/article/727017. PPB has accepted the PCCEP’s recommendation and will release its 2018 Annual Report before PCCEP’s recommended date of June 2019. PPB reports it will schedule precinct meetings as soon as it released the Report, and then seek time on City Council’s agenda.

151. PCCEP shall meet as needed to accomplish their objectives as set forth in the PCCEP Plan. PCCEP shall hold regular Town Hall meetings which shall be open to the public. To the extent that PCCEP meetings are subject to the Oregon Public Meetings Law, or similar regulatory or statutory requirements, the City shall be responsible to give advice necessary to the PCCEP to ensure compliance with those laws and agrees to represent PCCEP in any challenges regarding compliance with those laws.

Status

Substantial Compliance

Analysis

Beginning in November 2018, the PCCEP has held monthly three-hour open public meetings during which the Committee has resolved governance issues, received presentations on various educational topics, and deliberated and voted on recommendations. The Steering Committee has held monthly 90-minute open public meetings since December 2018, and other subcommittees have met regularly following their formation in January.
PCCEP held town hall-style meetings in concert with the Compliance Officer’s presentation of its Quarterly Reports in January and April 2019.

Technical The PCCEP must continue to meet regularly to accomplish the objectives set Assistance forth in the PCCEP Plan.

152. The City shall provide PCCEP members with appropriate training necessary to comply with requirements of City and State law.

Status

Substantial Compliance

Analysis

The City Attorney’s Office provided in-person training and background written materials during an on-boarding orientation session held on October 12, 2018. City representatives, including from the City Attorney’s Office and Mayor’s Office, have attended PCCEP meetings and provided real time guidance on city and state law, when needed.

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 Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 1 of 29
FIL£D24 ,JAN '20 11 :12usnc-1JRp
BILLY J. WILLIAMS, OSB #901366 United States Attorney RENATA GOWIE, OSB #175273 Civil Division Chief JARED D. HAGER, WSB #38961 Assistant United States Attorney U.S. Attorney's Office for the District of Oregon 1000 SW Third Ave., Suite 600 Portland, Oregon 97204-2902 Phone: 503.727.1120 Email: jared.hager@usdoj.gov
ERIC S. DREIBAND Assistant Attorney General Civil Rights Division STEVEN H. ROSENBAUM Special Litigation Section Chief LAURAL. COWALL Deputy Chief R. JONAS GEISSLER KERRY K. DEAN Trial Attorneys U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530 Phone: 202.514.6255 Fax: 202.514.4883 Attorneys for Plaintiff, United States

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,
V.
THE CITY OF PORTLAND, Defendant.

Case No. 3: 12-cv-02265-SI
PLAINTIFF' S NOTICE OF INTERIM COMPLIANCE ASSESSMENT REPORT

Page 1 Plaintiffs Notice oflnterim Compliance Assessment Report

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 2 of 29
Plaintiff United States of America submits this Interim Compliance Assessment Report in advance of the Interim Status Conference the Court scheduled for February 25, 2020, at 9:00 a.m. in Portland, Oregon. This Report covers the period of April 12, 2019, through January 10, 2020, 1 and addresses only two of the Agreement's seven substantive sections-Accountability (Section VIII) and Community Engagement and Creation of Portland Committee on Community Engaged Policing (PCCEP) (Section IX). These are the only two sections of the Agreement with components the United States had not yet found in substantial compliance as of our last Periodic Compliance Assessment Report, ECF 195. As detailed in this Report, the United States now finds that the City has achieved substantial compliance with all components of these two sections as of January 10, 2020.
Moreover, as detailed in our last Periodic Compliance Assessment Report, ECF 195, the United States previously found that the City has achieved substantial compliance with the other five substantive sections of the Agreement-Use of Force (Section III); Training (Section IV); Community-Based Mental Health Services (Section V); Crisis Intervention (Section VI); and Employee Information System (EIS) (Section VII). We have no cause to disagree with the Compliance Officer's subsequent assessment that the City remains in substantial compliance with these sections. See ECF 211, Periodic Compliance Assessment Report. The United States anticipates filing its next complete periodic compliance assessment report in advance of the next periodic status conference.
1 Our most recent compliance assessment report evaluated compliance between August 30, 2017 and April 11, 2019. See ECF 195-1. The date of the last item we considered in finding substantial compliance with Section VIII is January 10, 2020. See Assessment of Paragraph 128 (citing IPR SOP, revised Jan. 10, 2020). Page2 Plaintiff's Notice oflnterim Compliance Assessment Report

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 3 of 29
Pursuant to the Agreement, the City must maintain substantial compliance with all components of all seven sections for one year before the Agreement may be terminated. See ECF 171, Am. Settlement Agreement, Par. 175. If the City successfully remains in substantial compliance with the Agreement's terms through January 10, 2021, the United States anticipates the parties would jointly ask the Court to terminate the Agreement thereafter.
Our executive summary of this Report, by topic, is as follows: Accountability {Section VIII):
The City now has achieved substantial compliance with the Accountability Section of the Agreement, Section VIII. The City is complying substantially with the 180-day deadline for completion of accountability investigations conducted by PPB and the Office of Independent Police Review (IPR). (Pars. 121 , 123). The City also has completed previously delayed investigations involving the Bureau of Human Resources, enabling it to achieve substantial compliance with anti-retaliation requirements of Paragraph 130. These were the final Settlement Agreement provisions that the City needed to meet to bring the accountability system into substantial compliance.
In addition to assessing the timeliness of accountability investigations, we also assessed their quality. (Sec. VIII, Pars. 128, 169). PPB and IPR continue to complete investigations and reach conclusions that are supported by the evidence. The City continues to seek on-scene public safety statements when necessary and have witness officers provide on-scene walk-throughs. (Pars. 124, 126, 127). As before, PPB issued Communication Restriction Orders when required. (Par. 125). The City revised its City Code to assure a Citizen Review Committee member participates in all force cases that are subject to Police Review Board consideration. (Par. 131 ).
Page3 Plaintiff's Notice oflnterim Compliance Assessment Report

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 4 of 29
Community Engagement (Section IX): The City's framework for community engagement-PCCEP-has operated successfully
for 14 months. (Pars . 141, 151 ). The City continues to provide substantial support for the PCCEP' s mission. (Pars. 144, 146, 151 , 152). The PCCEP has maintained positive, productive relationships with the Mayor' s Office, PPB, and other relevant City entities, including the Auditor's Office, the City Attorney's Office, and the Office of Equity and Human Rights. (Pars. 142, 145). The PCCEP has also established good working relationships with non-City entities, including DOJ, the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC), the Mental Health Alliance (MHA), and the Portland Police Association (PPA).
During this reporting period, the PCCEP continued to engage Portland's communities on issues of police reform. (Pars. 142, 151 ). The PCCEP also provided meaningful input into PPB's Community Engagement Plan, for which it plans to review and recommend revisions on an ongoing basis. On October 2, 2019, the City approved PPB ' s Community Engagement Plan and accepted PPB's 2018 Annual Report following a presentation to City Council by then-PPB Chief Danielle Outlaw and some members ofthe PCCEP. (Pars. 142, 146, 150). The PCCEP also continues to independently assess implementation of the Settlement Agreement through a subcommittee designed for that purpose and town hall events with the Compliance Officer and DOJ. (Pars. 142, 151 ). Finally, the City took steps to ensure a functional replacement process for the PCCEP membership so that the body remains viable going forward. (Pars. 141 , 143). On December 18, following consultation with the AMAC, MHA, and PPA, the City approved amendments to the PCCEP Plan designed to expand youth participation, and streamline the appointment process while retaining community participation.
Page4 Plaintifrs Notice oflnterim Compliance Assessment Report

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 5 of 29

In sum, PCCEP members have demonstrated their ability to engage with the community

and do the work contemplated by the PCCEP Plan and the Settlement Agreement. (Pars. 142,

146). More broadly, the City has continued to support the PCCEP ' s efforts to improve PPB-

community relations. (Pars. 141 , 142, 144, 145, 151 ).

*

*

*

Our Report uses the following color-coded compliance status levels to indicate our

assessment of the City' s progress in complying with each term of the Settlement Agreement. As

with previous reports, we provided some additional information to compliance status levels that

did not change. The color coding is as follows:·

•

Green: substantial compliance with an ongoing obligation. This level indicates that the

City has implemented the specific provision as required by the Settlement Agreement, and that

the City has an ongoing obligation to continue such action to achieve sustained substantial

compliance.

•

Yellow: partial compliance with an ongoing obligation. This level indicates that while

there has been progress made with implementation, specific areas need further attention in order

to reach substantial compliance.

•

Red: non-compliance. This level indicates that we have recognized barriers to achieving

implementation of the provision that must be addressed to achieve substantial compliance.

At the interim status conference scheduled for February 25 , 2020, we anticipate renewing

the Joint Motion to Amend the Settlement Agreement, presenting the Court with an overview of

this Report, and answering any questions the Court may have.

Page5 Plaintiff's Notice oflnterim Compliance Assessment Report

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 6 of 29

DATED this_ day of January, 2020.
Respectfully submitted,
BILLY J. WILLIAMS United States Attorney District of Oregon
RENATA GOWIE Civil Division Chief
Isl Jared D. Hager JARED D. HAGER Assistant U.S. Attorney

ERIC S. DREIBAND Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Special Litigation Section Chief
Isl Laura L. Cowall LAURA L. COWALL Deputy Chief
Isl R. Jonas Geissler R. JONAS GEISSLER Trial Attorney
Isl Kerry K. Dean KERRY K. DEAN Trial Attorney

Page 6 Plaintifrs Notice oflnterim Compliance Assessment Report

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 7 of 29

VIII. OFFICER ACCOUNTABILITY
"PPB and the City shall ensure that all complaints regarding officer conduct are fairly addressed; that all investigative findings are supported by a preponderance of the evidence and documented in writing; that officers and complainants receive a fair and expeditious resolution of complaints; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. The City and PPB seek to retain and strengthen the citizen and civilian employee input mechanisms that already exist in the PPB's misconduct investigations by retaining and enhancing IPR and CRC as provided in this Agreement." Settlement Agreement Section TX Preamble, ECF 171 , at p . 35.
169 (formerly 172). PPB shall apply policies uniformly and hold officers accountable for complying with PPB policy and procedure. (Amended by ECF 171.)

Status

Analysis

The City now has achieved substantial compliance with Settlement Agreement Section Vlll Accountability.
Compliance Assessment Criteria
As we stated in our prior compliance assessment reports, Section Vlll requires that the City' s accountability system meet four criteria: (1) all investigative findings are suppo1ied by a preponderance of the evidence; (2) all findings are documented in writing; (3) officers and complainants receive a fair and expeditious resolution of complaints; and (4) all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. United States 2019 Settlement Agreement Compliance Assessment, ECF 195-1 , at p. 54. In our most recent assessment, we identified timeliness of investigations as the major hurdle the City had yet to overcome to achieve compliance with the Settlement Agreement' s accountability provisions. Id. The City focused on timeliness and, as a result, it now has achieved compliance. We discuss this in detail, below, with respect to Paragraph 121. Our review of accountability investigations from both the Independent Police Review and PPB ' s Internal Affairs also confomed that the efficacy of the accountability system did not suffer in order to achieve timely investigations.
We based our assessment on our review of a large sample of complete investigative files. We reviewed these files to determine if the investigation was complete and if the outcome was suppo1ted by the evidence. 1 Where we found issues, our assessments included probing questions to PPB, IPR, and/or the City' s legal counsel to better understand the process and conclusions reached. We did not depend only on PPB's summaries of its investigative reports. See, e.g. , "Police Review Board: Summaries and Reports," May 9, 2018-September 4, 2019, available at https://www.p01tlandoregon.gov/police/article/749217.
Overall Compliance Assessment
We stated in our last assessment that we agree with the Compliance Officer' s perception "that officers are most often held ' accountable for complying with PPB policy and procedure ' ." ECF 195-1 , at p. 55 (quoting Section VITT Officer Accountability and Section TX Community Engagement and Creation of Portland Committee on Community Engaged Policing, p. 14 (Q4 2018 Report) available at https://static 1.sguarespace.com/static/5a3l9f76a9db0901 e 16c6433/t/5c7e 1ebd24a694d3df701 e 32/1551769321244/Compliance+and+Outcome+Assessment+Report++Accountabi li +and+Communit +En agement+FINAL+with+a endices. d . The same

1 We did not look for any particular rate of sustained allegations because this is neither required by the Settlement Agreement nor the Constitution .

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 8 of 29

holds true now. As we describe for each paragraph below, we agree with the Compliance Officer' s updated assessment that the City substantially has complied with Section VITI and with the requirement to hold officers accountable to PPB policies and procedures. See Compliance and Outcome Assessment Report Quarterly Report: 2019 Updates and Quarter 4 Analysis (Q4 2019 Report), at p. 5 (finding compliance with all accountability paragraphs assessed) and p. 25 (assessing Paragraph 169), available at https://www.portlandcocl.com/s/Q4-2019-COCL-Compliance-and-0utcome-AssessmentQuarterly-Report-DRAFT-01152020-7ypf.pdf.

A. Investigation Timeframe
121. PPB and the City shall complete all administrative investigations of officer misconduct within one-hundred eighty (180) days of receipt of a complaint of misconduct, or discovery of misconduct by other means. For the purposes of this provision , completion of administrative investigations includes all steps from intake of allegations through approval of recommended findings by the Chief, including excluding appeals, if any, to CRC. Appeals to CRC shall be resolved within U 90 days. (Amended by ECF 171.)
123. lf PPB is unable to meet these timeframe targets, it shall undertake and provide to DOJ a written review of the IA process, to identify the source of the delays and implement an action plan for reducing them.

Status

Analysis

Paragraphs 121 and 123 were two of the last provisions of the Settlement Agreement with which the City had not yet come into compliance as of our last assessment. See ECF 195-1 , at pp. 5657 (DOJ's prior compliance finding) . We agree with the Compliance Officer that, now, the City has reached substantial compliance with Paragraphs 121 and 123. See Compliance Officer Quarterly Report: All Sections with Remaining Compliance Issues and 2019 Updates on Other Sections (Q3 2019 Report), at p. 37, Nov. 21 , 2019, available at https://static 1.squarespace.com/static/5a3 I9t76a9db0901 e16c6433/t/5dd78954e8d3bc5dd45f9d I 5/ l 574406486218/O3+2019+COCL+Compliance+and+Outcome+Assessment+Ouarterly+Repor t+FINAL+ l 1212019.pdf; Q4 2019 Report, at p. 18 (assessing Par. 123).
The Compliance Officer provided a helpful analysis of the timeliness of administrative investigations. Either PPB or IPR may initiate investigations, but both track investigatory progress using PPB's Administrative Investigation Maintenance (AIM) system. The Compliance Officer' s analysis used AIM to measure the time from the recorded date of initiation of the allegation until the date of disposition (or the date of data production for those cases that had not yet reached disposition). See Q3 2019 Report at 37-38. The Compliance Officer found that IA ' s compliance with the timeliness requirement was 94.4% and IPR ' s was 85.4%. Id. at 38. Additionally, since April of 2018, the Compliance Officer has found a significant downward trend in the percentage of investigations overdue at all investigative stages, as represented in this graph:

2

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 9 of 29
All Stages · Percent Overdue
40 35 30 25 10 IS 10
0
Id. at 40.
Like the Compliance Officer, we conclude that IA's and IPR's revised Standard Operating Procedures (SOPs) have improved consistency and timeliness in the handling of each step of the investigative process. See PPB SOP 29 - Case Management and Investigative Timelines, effective Aug. 16, 2019; PPB SOP 53 - Electronic Case File Packet Distribution within PPB, effective Sept. 11 , 2019 ("To allow for greater agility in the assignment of timelines to ensure the 180 day deadline of administrative investigations are met,"); IPR SOP, Section 1.3 Overall Office Case Management and Investigative Timeliness, revised Jan. 10, 2020. IPR has enforced its deadlines by requiring written requests for extensions, which trigger an analysis to determine if such an extension will cause a case to exceed 180 days. See Interim IPR Director Memo to IPR Staff, July 28, 2019. See also Memo from City Auditor to IPR Managers and Staff re Ensuring Timely Investigations During IPR' s Leadership Transition, May 6, 2019 (setting clear expectation to meet deadlines contained in administrative rules). The City's implementation of these SOPs is consistent with our prior technical assistance and appears adequate to sustain the improvements in timeliness.
In addition to the Compliance Officer' s analysis, we independently assessed a sample of IA and IPR investigative files to determine whether any of the matters exceeded 180 days between discovery of the allegation and approval of the recommended findings . A sample of eight completed IA investigations and five completed IPR investigations showed nearly al I cases completed with 180 days. In one IA case, 2019-C-O 128, we opined that PPB should not have closed the case, which led to a reopening and, therefore, more than 180 days between the initial allegation and the recommended finding. Excluding the period of closure, however, the case would have been completed within 180 days. Within our . sample, IPR missed the 180-day deadline by two days in 2018-C-0291, in which an Assistant Chief returned the case for further investigation. This quality control check must be balanced against timeliness and, in this instance, led to only minor deviation from the deadline. One case we reviewed from our sample, though, 2018-B-0050, spanned 236 days without an excusable basis. This one case was not compliant with the 180-day deadline; however, the City' s anomalous exceeding of the deadline in a single case does not amount to non-compliance with the Settlement Agreement. See Settlement Agreement Par. 175(a) ("Substantial compliance is achieved if any violations of the Agreement are minor or occasional and are not systemic").
In 2019, the City continued to address long-standing, older cases requiring resolution. Among these were cases involving allegations of violations of City Human Resources rules, or Human Resources Administrative Rule (HRAR) 2.02 matters. The matter of 2017-B-0005, for example, concerned a member' s alleged failure to report a derogatory, sexually explicit remark. Though the case originated from an incident in December 2016, it did not come before a Police Review Board (PRB until Januar · 2019, and did not reach
3

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 10 of 29

disposition of discipline until August 2019. PPB repo1ied that PRB members considered passage of time since the allegation, alone, as a mitigating factor. PPB also reported that the further passage of time until a predetermination hearing for one of the involved members served as additional mitigation for the Chiefs reduction of discipline. Though policy permits this reduction, it may not have been necessary if the case had been timely reso lved. Though the City will continue to have to resolve these legacy cases, the current cases are moving at the speed the Settlement Agreement requires.
PPB also identified a 26-day delay at Training Division in one case, 2018-B-0068, and both a 26-day delay and then a 47-day delay with the Chief's Office in another case, 20 I 8-B-0056, not involving an allegation of misconduct. See Overdue Investigation Summaries. PPB ' s executives may need to provide additional guidance concerning timely responses so that delays at the various investigatory steps do not result in exceeding the 180-day deadline.

122. PPB shall conduct administrative investigations concurrently with criminal investigations, if any, concerning the same incident. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a concurrent criminal investigation, or as otherwise provided by law, or as necessary to meet the CRC or PRB recommendation to further investigate.

Sta tu s

Analysis

Consistent with our prior compliance assessments and the Compliance Officer' s assessment, we continue to find that the City substantially has complied with the requirement to bring concurrent criminal and administrative investigations, subject to tolling. See ECF 195-1 , at pp. 57-58 (DOJ's prior compliance finding). See also Q4 2018 Report, p. 16 (Compliance Officer' s prior assessment); Q42019 Report, at p. 18.
PPB has implemented an SOP for its Detectives Division concerning the investigation of criminal allegations against PPB members. PPB SOP 39 - Criminal Internal Investigations, effective Dec. 5, 2018. This SOP requires coordination with IA for its administrative investigations. Id. Helpfully, the SOP also provides for issuance of communication restriction orders for all identified police personnel until the conclusion of both the IA and the criminal investigation. Id. at p. 3. Additionally, there is outside accountability on the handling of potentially criminal investigations by internal affairs. The TA Captain, IPR Director, and Detective Division Commander meet monthly to coordinate concurrent investigations. PPB SOP 6- Criminal Case Review, effective June 5, 2017.
As with prior monitoring periods, PPB reports on the specific internal affairs investigations it initiates and the corresponding dates of any parallel criminal investigation . See Criminal/TA Concurrent Investigation Audit for 3rd Qua11er 2019, as of Oct. 14, 2019 . ·AIM data indicates that the City consistently initiated administrative investigations concurrently with criminal investigations. Id.

B. On Scene Public Safety Statements and Interviews 124. Within 90 days of the Effective Date, the City and PPB shall review its protocols for compelled statements to PSD and revise as appropriate so that it complies with applicable law and current professional standards, pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). The City will submit the revised protocol to DOJ for review and approval. Within 45 days of obtaining DOJ's approval , PPB shall ensure that all officers are advised on the revised protocol.
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Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer' s assessment, we continue to find that the City substantially has complied.with the requirement for an appropriate protocol for compelled statements. See ECF 195-1 , at p. 58 (DOJ's prior compliance finding). See also Q4 2018 Report, at p. 17 (Compliance Officer' s prior assessment); Q4 2019 Report, at pp. 18-19. We previously pointed to PPB' s enactment and application of Directive 1010.10 - Deadly Force and In-Custody Death Reporting and Investigation Procedures; SOP 7 - Deadly Force; In-Custody Death Investigations; and SOP 30- Concurrent Administrative/Criminal Investigations, as evidence of PPB ' s substantial compliance with Paragraph 124. We agree with the Compl iance Officer' s updated assessment that the City continues to comply with the Directive and SOPs.

125. Separation of all witness and involved officers to lethal force events is necessary in order to safeguard the integrity of the investigation of that event. Immediately following any lethal force event, PPB shall continue to issue a communication restriction order ("CRO") to all witnesses and involved officers, prohibiting direct or indirect communications between those officers regarding the facts of the event. The CRO will continue, unless extended further, until the conclusion of the Grand Jury or, if no Grand Jury is convened, until a disposition is determined by the District Attorney.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer's assessment, we continue to find that the City substantially has complied with the requirement to issue CROs. See ECF 195-1 , at pp. 58-59 (DOJ's prior compliance finding). See also Q4 2018 Report, pp. 17-18 (Compliance Officer' s prior assessment); Q4 2019 Report, at p. 19.
A review of written CROs indicates PPB timely issued the CROs and then appropriately rescinded the CROs in writing.

126. PPB shall continue to require witness officers to lethal force events to give an on-scene briefing to any supervisor and/or a member of the Detective Division to ensure that victims, suspects, and witnesses are identified, evidence is located, and provide any information that may be required for the safe resolution of the incident, or any other information as may be required.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer's assessment, we continue to find that the City substantially has complied with the requirement to mandate an on-scene briefing from a witness officer. See ECF 195-1 , at pp. 59-60 (DOJ's prior compliance finding) . See also Q4 2018 Report, pp. 17 (Compl iance Officer's prior assessment); Q4 2019 Report, at pp. 19-20.
Detective notes of an Officer-Involved Shooting (OTS) we reviewed reflect the witness officers provided an on-scene briefing to detectives. See Case 2019-258996. As in prior monitoring reports, we note that PPB ' s voluminous files for these incidents identify victims, suspects, and witnesses, and catalogue relevant evidence. ECF 195-1 , at pp. 59-60; ECF 148-1.

127. In agreement and collaboration with the Multnomah County District Attorney, PPB shall request that 5

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 12 of 29

involved officers in lethal force and in-custody death events provide a voluntary, on-scene walk-through and interview, unless the officer is incapacitated.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer' s assessment, we continue to find that the City substantially has complied with the requirement to request an on-scene walk-through and interview from involved officers. See ECF 195-1 , at p. 60 (DOJ's prior compliance finding). See also Q4 2018 Report, pp. 18 (Compliance Officer' s prior assessment); Q4 2019 Report, at p. 20. Detective notes of an OIS we reviewed reflect that detectives sought an on-scene briefing and walk- . through by an involved officer, who declined and invoked right to counsel. See Case 2019-258996. Similarly, the Compliance Officer observed that in each OlS in the past year, PPB detectives continue to ask involved members for on-scene walk throughs and interviews. Q4 2019 Report, at p. 20.

C. Conduct of IA Investigations
128. Currently, both IPR and PPB ' s PSD have authority to conduct administrative investigations, provided that IPR interview of PPB Officers must only be conducted jointly with IA . Within 120 days of the Effective Date, the City will develop and implement a plan to reduce time and effort consumed in the redundant interview of witnesses by both IPR and lA, and enable meaningful independent investigation by IPR, when IPR determines such independent investigation is necessary.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer' s assessment, we continue to find that the City substantially has complied with the requirement to reduce redundancies and enable meaningful, independent IPR investigations. See ECF 195-1 , at p. 60 (DOJ's prior compliance finding). See also Compliance and Outcome Assessment Report, Quarterly Report: All Sections with Remaining Compliance Issues (Q22019 Report), at pp. 17-19, Aug. 22, 2019.
In our prior compliance report, we indicated that the City had reached substantial compliance with this provision of the Settlement Agreement based in large part on the implementation of joint training and directives at 1A and IPR that largely mirror one another. See ECF 195-1 , at p. 60 . That process has continued with further joint 1A and IPR joint training in 2019. See, e.g. , Memo from IPR Director to IPR Investigators re Joint Training, dated Sept. 19, 2019. Both IA and IPR now have agreed to use PPB ' s Learning Management System (LMS) to track this joint training going forward. See Email from IPR Director to PPB, Sept. 18, 2019 (memorializing IPR's agreement to track IPR training in LMS); PPB SOP 52, effective Sept, 19, 2019 (establishing use of LMS for IPR personnel and notifications for current training · needs). IPR also continued to revise its SOPs to further hone its process and make the SOPs reflective ofIA ' s SOPs, where appropriate. See IPR SOP, revised Jan. I0, 2020 (clarifying clear and convincing evidence required to close force allegations; defining "public interest" cases for IPR investigation; and guiding investigations with BHR). Institutionalizing the joint training and processes at both IA and IPR that mirror one another makes meaningful independent investigations a more durable remedy.
As we did in our past compliance assessment, we also reviewed a sample of investigative reports from both 1A and IPR to determine whether IPR has conducted meaningful independent investigations. IPR has. IPR ' s investigation of 2019-B-0010 exemplifies the im lementation of the mean in ful-inde endent-investi ation remed . The matter concerned
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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 13 of 29

allegations surrounding text messages between PPB and outside groups. Significantly, in a March 7, 2019 email , the PPB ' s Captain of IA asked the Chief to refer the allegation to IPR for investigation, rather than keep the allegation within PPB for investigation. PPB utilized IPR' s meaningful, independent investigation capabilities to address an allegation that was important to PPB. And, even though PPB and IPR took ultimately different views on part of the allegations-not sustained vs. exoneration-it was IPR 's investigation that found "no evidence that [the PPB member] failed to remain neutral." This was an effective use of external investigations for credible findings.
There is still room for improvement, even after maintaining substantial compliance with this provision of the Settlement Agreement. In the matter of20 I8-C-0291 , for example, IPR did not interview two involved officers until after the Chiefs Office identified this deficiency. The quality assurance mechanism worked. PPB identified the issue and IPR corrected it. This minor deviation does not undercut IPR's ability to conduct independent investigations, but does serve as a teachable moment on constant quality improvement, even during sustained compliance.
Also, IPR has identified structural barriers to access to information which slows IPR's ability to conduct independent investigations. See IPR Memo documenting document structural impediments to reducing time spent on intakes and investigations, rev. Sept. 8, 2019. For example, IPR does not have access ·to Oregon ' s Law Enforcement Date Base (LEDS). Id. The City believes that IPR' s LEDS access will depend on a legislative change. Id. Compare Or. Rev. Stat. 181.730 (including "designated agencies"); Or. Admin. Rule 257-015-0080, available at https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=803 (setting criteria for LEDS access). Regardless of whether a legislative or administrative rule is necessary or appropriate, for the time being, IPR currently obtains required LEDS information through PPB. This is time consuming, but an effective workaround to complete independent investigations.
IPR has overcome another structural issue that the Compliance Officer and DOJ previously identified: systemic complaints about how PPB does its law enforcement work, generally, and for which individual officers do not exercise discretion. See ECF 195-1 , at p. 61. The Compliance Officer previously criticized what it called systemic complaints masquerading as individual complaints. See Q4 2018 Report, at p. 19. We recommended that IPR and PPB could increase their efficiencies if IPR and TA could better funnel such systemic issues to the City agencies capable of providing a remedy to systemic issues. See ECF 195-1, at p. 61. The City has now developed such a process to better address these systemic issues that do not involve allegations of officer misconduct. See Email from Acting IPR Director to Mayor's Senior Advisor for Public Safety, Sept. 19, 2019 (memorializing agreement on referral of system-level complaints or concerns to other City agencies). Accordingly, even with substantial compliance for IPR's independent investigations, the City found room for improvement that makes the accountability system, as a whole, more effective.

129. The City and PPB shall ensure that all allegations of use of excessive force are subject to full and completed IA investigations resulting in findings , unless there is clear and convincing evidence to IPR that the allegation has no basis in fact.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer' s assessment, we continue to find that the City substantially has complied with the requirement to investi ate full all excessive force alle ations, unless IPR determines that the alle ation has
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no basis in fact. See ECF 195-1 , at p. 61 (DOJ's prior compliance finding); Q42019 Report, at pp. 20-21. We agree with the Compliance Officer, however, that IPR has inconsistently applied its no-basis-in-fact standard. Q42019 Report, at pp. 20-21. In response to this critique, however, IPR revised its SOPs to ensure more consistent application of this standard going forward. Id.; TPR SOP, Sec. 2.3, revised Jan. I0, 2020 (clarifying clear and convincing evidence required to close force allegations) .

As we have done in prior assessments, we reviewed a sample of completed administrative

investigations involving allegations of use of excessive force. In the cases we sampled, a

preponderance of the evidence contained in the complete administrative record supported the

administrative finding for the force allegations where TA or TPR reached a sustained,

exonerated, or unfounded finding, but in a small number of non-force cases the preponderance

standard was not evenly applied between unfounded, exonerated, and not sustained. We were

concerned that this misapplication of evidentiary standard would affect force cases and

accountability, generally. Accordingly, we requested that the City implement remedial

training on this evidentiary standard. The City did so. See Email from PPB Inspector General

to DOJ , Oct. 25 , 2019 (attaching lesson plan for training on findings). Though only a handful

of non-force findings in the initial sample were deficient, the remedial training served to

improve the accountability system as a whole, including force allegations. A review of a

sample of force cases after the remedial training showed consistent application of the

preponderance of evidence standard. See, e.g. , 2019-C-0248 (departing from an investigator' s

recommendation of unfounded, i.e. , the incident did not happen, to exonerated, i.e., an incident

occutTed and was within policy).

,

Additionally, we requested that PPB reopen one investigation that had been closed without reaching a finding because PPB could not identify an accused officer, 2019-C-0128. PPB did so. That matter involved an allegation of use of force based on a nearly three-year-old incident. PPB had dedicated tremendous resources to interviewing numerous officers and conducting an investigation, but closed the investigation. Paragraph 129 would not permit such a closure by PPB absent IPR' s own determination that the allegation had no basis in fact. Accordingly, we recommended that PPB reach a finding. This recommendation is consistent with our previous technical assistance letter in which we recommended that PPB reach findings in all force cases. See Letter from DOJ to City Attorney, Oct. 28, 2014. PPB thereby remedied the one force investigation lacking a finding.

130. The City and PPB shall continue to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct.

Status

Analysis

We previously found that there was insufficient data to show implementation of the requirement to prohibit retaliation against or discouragement of those who make complaints or cooperate in investigations. See ECF 195-1 , at p. 62 (DOJ's prior compliance finding). Now, we agree with the Compliance Officer' s assessment, and find that the City has demonstrated implementation. Q42019 Report, at p. 21.
The Bureau of Human Resources (BHR) shares responsibility with PPB to investigate retaliation complaints. See ECF 195-1 , at p. 62. BHR previously had a backlog that was an impediment to finding substantial compliance with this provision. Id. BHR, together with PPB, completed the open investigations. To address the timeliness issue
oina forward, PPB enacted a new SOP to overn cases involvin BHR, includin

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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 15 of 29
allegations of retaliation. See PPB SOP 22, effective Aug. 16, 2019. In part, this SOP requires weekly review of case status. Id.
We have assessed a sample of now-completed BHR-related investigations to ensure that the City fully investigated those matters before closing them. The sample showed fully completed investigations. For example, an investigation of one allegation led to an allegation of retaliation resulting in a full investigation of that retaliation allegation. See 2019-B-0012, 2019-B-001 3.
Accordingly, we now find the City in substantial compliance with Paragraph 130.
131. The City and PPB shall retain Police Review Board procedures currently utilized for purposes of investigation and making recommended findings on administrative complaints, except as outlined below:
a. CmTently, seven voting members of the PRB review use of force incidents, including two citizen members. When PRB reviews uses of force case, one of the two citizen member slots shall be drawn from the Citizen Review Committee members.
b. The CRC slot on the PRB in use of force cases will rotate among the CRC membership so that different CRC members participate on the PRB . Withjn 60 days of the Effective Date, the Auditor shall develop a membership rotation protocol.
c. All members participating in the PRB must maintain confidentiality and be able to make thoughtful , unbiased, objective recommendations to the Chief of Police and Police Commissioner that are based on facts , consistent with PRB city code provisions and "just cause" requirements set forth in Portland City Charter, City rules, and labor agreements.
d. Cases in which the member elects, with the concurrence of the Chief and the Police Commissioner, to accept the investigative findings and recommended discipline. This option will only be available to a member following implementation of code language which shall require at a minimum a full investigation of the alleged misconduct, issuance of the investigative findings, and concmTence with the findings by the Independent Police Review, the Professional Standards Division and the member' s Branch Chjef. The scope of cases eligible for stipulated discipline shall be identified in the authorizing code, and cases involving alleged used of excessive force , cases involving alleged discrimination, disparate treatment or retaliation, reviews of officer involved shootings and in-custody deaths, and cases in which the Chief or the Police Commissioner does not agree to accept the member' s proposed stipulation to findings and recommended discipline shall not be eligible for stipulated findings and recommended discipline. (Added by ECF 171.)
e. All community members and CRC members must meet the following qualifications to participate on the PRB:
i. Pass a background check performed by the Bureau.
ii. Participate in Bureau training to become familiar with police training and policies, including the PRB process.
iii. Sign a confidentiality agreement.
iv. Participate in ride-alongs to maintain sufficient knowledge of police patrol procedures.
f. Current city code provides that the City Auditor and the Chief have authority to recommend to City Council the removal of citizen members from the PRB pool. Likewise, the City Auditor or Chief shall have authority to recommend to City Council removal of a CRC member from serving on the PRB. The Chief or the City Auditor may recommend that City Council remove a community member or member of the CRC from the pool for the following reasons:
i. Failure to attend training;
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ii. Failure to read Case Files; iii. Objective demonstration of disrespectful or unprofessional conduct; iv. Repeated unavailability for service when requested ; v. Breach of confidentiality; vi. Objective demonstration of bias for or against the police; or vii. Objective demonstration of conflict of interest. g. Removal from participation in the PRB shall not affect CRC membership. h. Like current PRB citizen members, CRC members serving on the PRB may serve in that capacity for no more than three (3) years. i. A CRC member who paiiicipates in a PRB review shall recuse himself/herself during any later appeal of the same allegation(s) to the CRC.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer's assessment, we continue to find that the City substantially has complied with the Settlement Agreement's requirements for the composition of and procedures used by the PRBs. See ECF 195-1 , at p. 62 (DOJ's prior compliance finding); Q4 2019 Report, at pp. 21. We previously reported that the City memorialized the substantive requirements of Paragraph 131 in PPB Directive 336.00. Id.; Dir. 336.00 - Police Review Board, effective March 3, 2018, available at https://www.portlandoregon.gov/police/article/674632 .
In our prior compliance assessment, we recommended that the City modify its PRB ordinance to ensure that PRBs reviewing uses of force cases include one CRC member, as Paragraph 131 (a) requires. The PRB ordinance had limited this CRC representation to only certain types of force cases, albeit the most common force cases. See ECF 195-1, at p. 62 (citing Potiland City Code 3.20.140 Police Review Board, Sec. (C)(2), available at https://www.portlandoregon.gov/citycode/a1ticle/707 I96). On August 28, 2019, the City amended this code provision, based on the United States' technical assistance. See Portland Ordinance 189673, Aug. 28, 2019; full , codified available at https://www.portlandoregon.gov/citycode/a1ticle/741180 .
A review of a set of PRB memoranda show that PPB continues to use the PRBs not only to test the support for investigative findings, but also for training and policy recommendations. Note that in one matter, 2018-B-0087, the PRB did not reach a final vote on a training recommendation. But even without the final vote on the recommendation, the PRB memo notes that the Board Members acknowledged the Training Division's awareness of the issue.
On September 11 , 2019, the City appointed new, and reappointed current, community PRB volunteers for terms into 2022. See Portland City Council Agenda, Sept. 11 , 2019, item 857. This cohort of 13 volunteers represents Portlanders from various backgrounds and experiences, including a former CRC member. See City Auditor Memo to Mayor and Commissioners, Sept. 3, 2019.

132. By majority vote, the PRB may request that investigations of misconduct be returned to its investigating entity, i.e. PSD or IPR, to complete the investigation as to factual matters necessary to reach a finding regarding the alleged misconduct. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the PRB explaining why additional time is needed.

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 17 of 29

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer' s assessment, we continue to find that the City substantially has complied w ith the requirement to provide . additional investigation at the PRB 's or IPR's request. See ECF 195-1 , at p. 64 (DOJ's prior compliance finding) ; Q42019 Report, at pp. 2 1-22. As we previously observed, PPB has incorporated Paragraph I32' s requirement in PPB Directive 336.00 - Police Review Board, section 4.7, and PPB has put this requirement into practice. See ECF 195-1 , at p. 65 .

133. If an officer's use of force gives rise to a finding of liability in a civil trial, PPB shall: (1) enter that civil liability finding in the EIS ; (2) reevaluate the officer's fitness to participate in all current and prospective specialized units ; (3) if no IA investigation has previously been conducted based upon the same allegation of misconduct and reached an administrative finding, conduct a full IA investigation with the civil trial finding creating a rebuttable presumption that the force used also violated PPB policy, which presumption can only be overcome by specific, credible evidence by a preponderance of evidence; (4) if an TA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, identify whether any new evidence exists in the record of the civil trial to justify the reopening of the 1A investigation, and if so, re initiate an IA investigation; and (5) if an IA investigation has already concluded based upon the same allegation of misconduct and failed to reach a sustained finding, and no nyw evidence from the civil trial
justifies reopening the 1A investigation, work with IPR to identify the reason why the administrative finding
was contrary to the civil trial finding and publish a summary of the results of the inquiry.

Status

Analysis

Like our last report, we note that PPB had no civil liability findings during this compliance period that would have triggered the application of this provision. See ECF 195-1 , at p. 65 (DOJ's prior compliance finding). We agree with the Compliance Officer that the City is in substantial compliance with this provision through implementation of PPB SOPs 32 and 42, which incorporate the requirements of Paragraph 133. See Q42018 Report, p. 22 ; Q42019 Report, at p. 22.

D. CRC Appeals
134. The City shall expand the membership of the CRC to 11 members, representative of the many and diverse
communities in Portland, who are neutral, unbiased, and capable of making objective decisions. The quorum of CRC members necessary to act may remain at its existing level.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer's assessment, we continue to find that the City substantially has complied with the required composition of CRC members and with CRC's quorum . See ECF 195-1 , at p . 65 (DOJ's prior compliance finding); Q4 2019 Repo1t, at pp. 22-23.
As we previously reported, the City had already memorialized CRC membership expansion as required by Paragraph 134 in City Code 3.21.080 (available at https ://www.port landoregon.gov/citycode/article/479665). In this compliance period, the City continued soliciting new CRC volunteers who are " impaitial and objective in regards to law enforcement." See "Citizen Review Committee 2019 Recruitment," undated (seeking applications by September 26, 2019). CRC is currently composed of 11 members, as Paragraph 134 requires. See CRC member li st, updated Sept. 18, 2019.
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135. The City and PPB agree that the CRC may find the outcome of an administrative investigation is unreasonable if the CRC finds the findings are not supported by the evidence.
136. Tn its review process for purposes of the appeal , the CRC may make one request for additional investigation or information to the investigating entity, i.e. PSD or IPR at any point during its review. The investigating entity must make reasonable attempts to conduct the additional investigation or obtain the additional information within 10 business days or provide a written statement to the CRC explaining why additional time is needed. The request for additional investigation or information may contain multiple points of inquiry, but no follow-up requests will be permitted. The additional request be voted on by a quorum, the members voting must have read the Case File in order to vote and any request with multiple points of inquiry must be prioritized.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer' s assessment, we continue to find that the City substantially has complied with the required CRC evidentiary standard and requests for additional investigation. See ECF 195-1, at p. 66 (DOJ's prior compliance finding); Q4 2019 Report, at p. 23.
We previously reported that CRC' s governing regulations reflect the requirements of Paragraphs 135 and 136. See ECF 158-1; 195-1. Again, the City has long established substantial compliance with these provisions.

E. Discipline
137. Within 60 days of the Effective Date, PPB and the City shall develop and implement a discipline guide to ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors and to provide discipline that is reasonably predictable and consistent.

Status

Analysis

·Consistent with our prior compliance assessments and the Compliance Officer's assessment, we continue to find that the City substantially has complied with the required discipline guide. See ECF 195-1 , at p. 67 (DOJ's prior compliance finding); ECF 158-1 (DOJ's 2017 compliance report); Q4 2018 Report, pp. 23-24 (Compliance Officers prior assessment report); Q4 2019 Report, at pp. 23-24. As before, PPB continued to give effect to the Discipline Guide through enactment of Directive 338. See Dir. 338.00 - Discipline Guide, effective Mar. 3, 2018, available at https://www.po1tlandoregon.gov/police/article/674636. A review of corrective action memoranda showed consistent application of the guide.

F. Communication with Complainant and Transparency
138. Within 180 days of the Effective Date, the City shall enhance its existing website to ensure that a complainant can file and track his or her own complaint of officer misconduct.
139. Within 120 days of the Effective Date, the City shall review its protocols to ensure that the City shares with complainants requested documentation about his or her own complaint to the extent permitted by law.
140. The City shall ensure that IPR provides each complainant a tracking number upon receipt of the complaint, infonns each complainant of the complaint classification, assignment (precinct or TA) and outcome of the complaint (sustained, unproven, etc.) in writing (whether mail , email/text, or fax) , including information regarding whether the City took any corrective action. The City Attorney's Office shall determine whether
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disclosures regarding corrective action are required on a case-by-case basis consistent with Oregon ' s Public Records Law.

Status

Analysis

Consistent with our prior compliance assessments and the Compliance Officer's assessment, we continue to find that the City substantially has complied with the required communication and transparency for complainants. See ECF 195-1 , at p. 67 (DOJ's prior compliance finding); Q4 2018 Report, pp. 24-25 (Compliance Officer's prior assessment report); Q42019 Report, at pp. 24-25.
As was the case last year, in our review of administrative investigations that closed over the past year, each investigative file in our sample included letters to the complainant explaining the results of the investigation and the appeal process. The same IPR website on which we previously reported continues to allow complainants to check the status of their complaints by entering their complaint number or the complainant' s identifying information. See IPR Complaint Status Request Form , available at https://www.portlandoregon.gov/ipr/64452 .

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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 20 of 29

IX. COMMUNITY ENGAGEMENT AND CREATION OF PORTLAND COMMITTEE ON COMMUNITY ENGAGED-POLICING
"There is significant community and City interest in improving PPB's community relationships. The community is a critical resource. Soliciting community input regarding PPB's performance, while also enhancing PPB ' s current community outreach efforts, will promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety." Settlement Agreement Section lX Preamble, ECF 171 , at pp. 45-46.

141. To leverage the ideas , talent, experience, and expertise of the community, the City, in consultation with OOJ, shall establish a Portland Committee on Community Engaged-Policing (PCCEP), within 90 days of the Effective Date of the relevant amendments to this Agreement.

Status

Analysis

The City established the PCCEP on August 24, 2017. The Mayor's Office selected a diverse cross-section of Committee members on September 11 , 2018, following an exhaustive recruitment, selection, and interview process designed to ensure equity and inclusion. The City confirmed the PCCEP's 13 original members on September 26, 2018. Since then, the City has ensured a membership roster that is sufficient for the PCCEP to perform its functions.
The PCCEP has held monthly meetings since October 2018 . The City continues to provide substantial support, including by providing designated administrative support, meeting locations, an adequate pool of qualified alternates, and access to City leadership and PPB personnel. The City hosts a website for the PCCEP, where relevant documents and other information can be accessed. See https://www.portlandoregon.gov/pccep. The PCCEP also has a YouTube channel for videos, accessible at https://www.youtube.com/channe l/UCOW 1oX39iMCY0O-qeqLTxg. and uses other social media platforms. The City has contracted with Open Signal, a community-driven media service provider, to air live online broadcasts ofthe PCCEP' s monthly public meetings. Most meetings have been l1vestreamed successfully. However, in some cases, the PCCEP chose to meet in locations without sufficient bandwidth for the City' s vendor to broadcast the meeting live. ln those cases, video recording of the meeting was uploaded to the YouTube channel within a few days.

142. The PCCEP shall be authorized to: (a) solicit information from the community and the PPB about PPB ' s performance, particularly with regard to constitutional policing; (b) make recommendations to the Chief, Police Commissioner, the Director of the Office of Equity and Human Rights, and community and , during the effective period of this Agreement, to the DOJ; (c) advise the Chief and the Police Commissioner on strategies to improve community relations;
1 At the October 4, 2018 Status Conference, the Couti suggested that the United States and the Compliance Officer should evaluate the City' s compliance with Section lX as if the Court had entered final approval of the stipulated proposed Section IX amendments. See ECF I 76, Hearing Transcript, at I28: 19 - 129: 11.

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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 21 of 29

(d) contribute to the development and implementation of a PPB Community Engagement Plan ; and (e) receive public comments and concerns. The composition, selection/replacement process and specific duties of the PCCEP shall be set forth in a separate Plan for Portland Committee on Community-Engaged Policing ("the PCCEP Plan") which shall be substantially similar to Exhibit 1 to this Agreement. Amicus AMAC and Intervenor PPA shall be consulted regarding and DOJ shall review and approve any amendments to the PCCEP Plan proposed to occur during the effective period of this Agreement.

Status

Analysis

The City continues to authorize the PCCEP to perform the tasks enumerated in Paragraph 142. See Amended PCCEP Plan, available at https://www.portlandoregon .gov/pccep/article/703060. The PCCEP has perfonned this work to varying degrees, as well as other work, and continues to do so. The City and the PCCEP have each emphasized the importance of the PCCEP setting its own agenda and focu sing on topics the PCCEP and its subcommittees perceive are most important to the community.
The PCCEP is authorized to independently assess the City' s compliance with the Settlement Agreement, and created a subcommittee for that purpose. The PCCEP Settlement Agreement & Policy Subcommittee materials are available at https://www.portlandoregon.gov/pccep/78726. Much of the PCCEP's assessment of compliance has been conducted through the review and presentation of reports from the City, the Compliance Officer, and DOJ, rather than by way of additional review of underlying data. The PCCEP has considered compliance at several public meetings, including as host to the Compliance Officer' s quarterly town hall events (January, April, July, and October) and to DOJ's counsel of record (May). See PCCEP Meeting Minutes, available at https://www.portlandoregon.gov/pccep/78093 ; PCCEP Meeting Video Replays, available at https ://www.youtube.com/channel/UC0W 1oX39iM CY-0O-qeqLTxg.
In the summer of 2018, the City consulted with AMAC and PPA on amendments to the PCCEP Plan, which responded to concerns that community members expressed. Of note, the changes reserved seats for two high school-aged youth and allowed for subcommittees that hold public meetings. DOJ approved the amendments as required by this Paragraph. The City approved the amendments, which then became effective on September 5, 2018. See City Council Ordinance 27284, available at https://efi les.portlandoregon.gov/Record/12278614 . In December 2019, the City consulted with AMAC and PPA on potential amendments to the PCCEP Plan designed to strengthen the process for appointing PCCEP members by expanding youth membership, and streamlining the process while retaining community participation. DOJ reviewed and approved the proposed amendment after the City completed its consultation and finalized the amending language. The City approved the amendments, which then became effective on December 18, 2019 . See City Council Resolution No . 37470, available at https ://www.portlandoregon.gov/auditor/56674.

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The City has maintained the PCCEP ' s composition and specific duties, and is ensuring a workable and fair selection/replacement process that includes citizen participation. To date, the City has twice undertaken an equitable and inclusive recruitment and selection process to create pools of additional qualified alternate members . The PCCEP has engaged with these alternate members in trainings, retreats, and at subcommittee meetings. The City has filled vacancies timely by drawing on alternates in collaboration with the PCCEP. When alternate pools have been exhausted, the City has acted with deliberate speed to recruit, select, and train new alternate members.
The PCCEP is capably exercising its authority. It has solicited information from the community and the City about PPB ' s performance, recommending concrete actions to City leaders; received public comment and concerns during regularly scheduled, open public committee and subcommittee meetings; and contributed to the development and implementation of PPB 's Community Engagement Plan. The City adopted PPB ' s Community Engagement Plan on October 2, 2019 following a public hearing that included a presentation by PPB and PCCEP members, and a public comment period. See City Council Resolution 37452, available at https://efiles.portlandoregon.gov/Record/ I3297449.

143. PCCEP ' s membership will come from a reasonably broad spectrum of the. community. PCCEP members shall not have an actual or perceived conflict of interest with the City of Portland.

Status

Analysis

PCCEP members come from a reasonably broad spectrum of the community. See Member Bios, available at https://www.portlandoregon.gov/pccep/article/7057 l 8. Members have a diverse cross-section of relevant lived experiences, possess a wide range of ideas, skill sets, and interests, and are dedicated to improving policecommunity relations. The PCCEP' s subcommittees have welcomed interested members of the public who similarly represent various lived experiences and communities. The City has trained PCCEP members on applicable confiict-ofinterest rules, and members have followed them.

144. The City shall provide administrative support so that the PCCEP can perform the duties and responsibilities identified in this Agreement and in the PCCEP Plan.

Status

Analysis

The City continues to invest substantial resources to support the PCCEP. Administrative staff support includes two full-time , devoted employees, Theo Latta (PCCEP Project Director) and Claudia Claudio (PCCEP Project Assistant). Judith Mowry, a Senior Policy Advisor in the City' s Office of Equity and Human Rights, continues to offer regular guidance and support to the PCCEP despite relin uishin her role as Actin Project Director. Thou hit took the Cit several

16

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 23 of 29

months to fill the Project Director position with a permanent hire, the City has consistently provided ample administrative support so that the PCCEP can perform its duties. The relationship between City staff and the PCCEP ' s members remains professional and productive.
The City has also provided the PCCEP with logistical suppoti, including office space independent from other City facilities, where most subcommittee meetings are routinely held ; designated e-mail addresses for PCCEP members; meeting spaces across the Portland community along with food and beverages for attendees at full monthly meetings and town hall events; and technical assistance. The City has also provided contract facilitation services, which the PCCEP has accepted at times. At other times, the PCCEP has chosen to self-facilitate, with assistance from PCCEP staff. The City has engaged Open Signal to stream monthly PCCEP meetings live online, and replays are available on the PCCEP ' s YouTube site, available at https://www.youtube.com/channel/UCOW 1oX39iMCY-0O-geg LTxg, and local cable television, see https://www.po1tlandoregon.gov/ pccep/78094 (linking to PCCEP Public Meetings Broadcast Times). A consequence of the PCCEP deliberately choosing to hold monthly meetings at different locations, however, has been the sporadic unavailability of bandwidth sufficient for three meetings to air live. In these cases, video replays were available within a day or two.
The PCCEP website links to numerous documents, memorializing the PCCEP's work, the COAB ' s work before them, and the PCCEP's administrative support staff. See https://www.portlandoregon.gov/pccep/ (organizing pages by tabs titled, "Library," "Reports & Recommendations," "COAB," "Meeting Agendas / Minutes," and by subcommittee). PCCEP staff have shown they are willing and able to respond effectively to community concerns regarding patticular documents or other items to be linked on the PCCEP website. PCCEP staff can be contacted at: PCCEPlnfo@portlandoregon.gov.

145. To ensure constitutional policing, to closely interact with the community to resolve neighborhood problems, and to increase community confidence, PPB shall work with City resources knowledgeable about public outreach processes and the PCCEP to improve its engagement with the community.

Status

Analysis

PPB continues to work in good faith with City partners and the PCCEP to improve its efforts to engage the community effectively and to increase community confidence. PPB has documented its engagement efforts and, through its newly fo1med Office of Community Engagement, has developed a Community Engagement Plan as part of a broader five-year Strategic Plan. For information about PPB ' s Community Engagement and Inclusion Report, see https://www.portlandoregon.gov/pccep/article/726822; and for the Strategic Plan, see htt s://www. ortlandoreuon. 0 ov/ olice/76886. PPB ' s Communi

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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 24 of 29

Engagement Plan, which incorporates the PCCEP ' s input, is available at https://www.portlandoregon.gov/police/article/744534 .
The Community Engagement Plan is designed to evolve over time. The Plan anticipates the PCCEP ' s continued involvement to annually assess and improve on the initial iteration. PPB and the PCCEP have established a productive working relationship sufficient to enable an ongoing collaboration. PPB command staff and members of the Office of Community Engagement have attended all of the full monthly PCCEP meetings, and most of the PCCEP ' s subcommittee meetings. PPB has provided timely responses to the PCCEP ' s requests for knowledgeable personnel and information relevant to the PCCEP ' s community engagement work.

146. Within 120 days of the effective date of the relevant Amendments to this Agreement, the City, in consultation with the PCCEP, will conduct another reliable, comprehensive and representative survey of members of the Portland community regarding their experiences with and perceptions of PPB's community outreach efforts and accountability efforts and where those efforts could be improved, to inform the work of the PCCEP and the development and implementation of the Community Engagement Plan.

Status

Analysis

For the 2019 survey, the City engaged the same professional survey research group - DHM Research - that conducted similar surveys in 2013 , 2015, and 2016. The City consulted with the PCCEP about the 2019 survey in November and December 2018. DHM finalized and administered the 2019 survey between January and March. Data collection was complete in May 2019. DHM presented the results to the PCCEP and the public, and PCCEP discussed the results at its July 2019 meeting, which can be viewed onl ine here: https://www.youtube.com/watch?v=N3N6666BHek. The final report and data analysis are memorialized on the PCCEP' s website, available here: https: //www.portlandoregon.gov / pccep/arti cle/734466 .
The City has empowered the PCCEP to solicit community views on issues of equitable policing and meaningful public engagement. The PCCEP is exploring recommending additional surveys to inform the evaluation and refinement of PPB's community engagement effo1ts, including one focused on perceptions of the City' s youth and another focused on City residents having police contacts.

147. PPB shall continue to collect appropriate demographic data for each precinct so that the Precinct Commander, considering any input from the PCCEP, may develop outreach and policing programs specifically tailored to the residents of the precincts. The data shall also be provided to PCCEP to info1m its work.

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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 25 of 29

Status

Analysis

PPB continues to collect the demographic data required by this Paragraph, which is culled from the American Community Survey of the U.S. Census Bureau. See https: //www.census .gov/ content/dam /Census/ programssurveys/acs/abo ut/ACS Information Guide.pdf. The demographic data is published on the PCCEP ' s website. See PPB Precinct Demographics Report, Dec. 2018, available at https ://www.portlandoregon.gov/pccep/article/745563 . Raw Data, available at https://www.portlandoregon.gov/pccep/article/745564.
As detailed by the Compliance Officer in its Fourth Quarter Report in 2018, PPB precinct commanders use demographic data to tailor outreach efforts. See ECF 196-1 at 45 . PPB provided the demographic data to the PCCEP in March 2019, and reported on its community engagement and inclusion efforts at the PCCEP ' s March meeting. See https://www.po1tlandoregon.gov/pccep/a1ticle/728027 (report); https ://www.youtube.com/watch?v=LdSHCgOAyrc (March meeting video).
The City has empowered the PCCEP to review, evaluate, and recommend improvements to PPB ' s community engagement and outreach activities on an annual basis. In performing this work, the PCCEP may consider precinct demographic data relevant to its analysis and recommendations.

148. PPB shall continue to require that officers document appropriate demographic data regarding the subjects of police encounters, including the race, age, sex and perceived mental health status of the subject, and shall provide such information to the PCCEP and make such information publicly available to contribute to the analysis of community concerns regarding discriminatory policing. PPB shall consider enhancements to its data collection efforts, and repo1t on its efforts to enhance data collection to the DOJ by no later than December 31 , 2013 , and quarterly thereafter.

Status

Analysis

PPB continues to require that officers collect the demographic data required by this Paragraph. The data is publicly available on PPB ' s website. See Stops Data Collection, available at https://www.po1tlandoregon.gov/po lice/65520. PPB publishes a yearly report with more in-depth analyses of the stops data. See https://www.po1tlandoregon.gov/pol ice/72040. The PCCEP has the data.
PPB also continues to consider and report on efforts to enhance its data collection efforts. For example, to resolve concerns surrounding the collection of data related to perceived mental health status PPB issued reminders to underscore the importance of officers completing reports timely during roll call. and in videos. PPB ' s publicly available Open Data Po1tal is another notable effort to enhance data collection. The Portal catalogs a broad array of PPB-related information, such as police-officer-involved shootings, officer use-of-force reports generally, re arts of bias-related crimes, and crime statistics enerall . See PPB O en Data,

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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 26 of 29

available at https://www.portlandoregon.gov/police/71673 . The searchable database is updated regularly with new data relevant to community concerns.

149. The COCL, PPB, and DOJ will jointly develop metrics to evaluate community engagement and outreach. PCCEP may review these metrics and may suggest additional metrics to DOJ and PPB.

Status

Ana lysis

Over the course of meetings in January and February 2019, the Compliance Officer, PPB, and DOJ jointly developed a list of metrics to evaluate community engagement and outreach. The metrics define "community engagement and outreach" as PPB actions involving community contact, whether individually or collectively, to provide services, establish relationships and build public trust in the police as public servants." See ECF 197-1 at 61 . The initial metrics covered four categories, including: (1) interactions with the public and general service delivery; (2) communication with the public; (3) collective engagement with the community through boards, commissions, committees and other stakeholder groups, and (4) regular reporting to the community on PPB activities. See id. at 61-62.
The City provided these metrics to the PCCEP. The Steering Committee delegated the task of reviewing and suggesting additional metrics to the Settlement Agreement & Policy Subcommittee, which considered the issue at its April and May meetings. See https ://www.portlandoregon.gov/pccep/article/730254 (April subcommittee meeting minutes). After deliberation and public comment, the Subcommittee approved recommendations modifying three metrics and adding a fifth. See https://www.portlandoregon.gov/pccep/article/732333 . The full PCCEP considered and approved the recommendations at its May meeting. See https://www.pottlandoregon.gov/pccep/article/735685 (May meeting minutes); https://www.youtube.com/watch?v=mZytWu9klis (May meeting video).
PPB accepted the recommendations. The five metrics as revised are:
1. Survey data detailing public trust and confidence in PPB. PPB is expected to continue to engage with diverse community members in a manner that is fair (unbiased), respectful, and helpful. Public perceptions ofthe PPB and the performance ofits officers are considered important metrics, as they affect public trust and confidence in the police. These can be measured through community and/or contact surveys.
2. Communication with the public. The PPB is expected to maintain and continue to establish conduits ofiriformation to encourage the bi-directional flow ofinformation between the community and the PPB. These can be measured through th e presence, quality, and quantity ofi,iformation available on PPB 's website and social media outlets.
3. Collective engagement with the community through boards, commissions, committees, and other stakeholder forums/groups/meetings. PPB is expected to continue to participate in a wide range ofpublic events and groups for purposes of accountabili 1, trans arenc , and ublic education. This artici a/ion could be

20

Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 27 of 29
measured through the presence, quality, and quantity ofPPB participation in these collective events. PPB is expected to report on strategies used to engage with communities that have historically been difficult to reach, including but not limited to, people with mental illness and houseless individuals. " 4. Regular reporting to the communi~y on PPB activities. In the interest of transparency and public education, PPB is expected to continue to report regularly to the community regarding its activities and events in the realm ofcomm unity engagement (including #3 above). These can be measured through the presence, quality, and quantity ofinformation contained in PPB 's reports, website and social media outlets. PPB reports should note situations in which Bureau members engage with the community in an official capacity, but out oftheir patrol uniform. In addition, reports should note significant changes year over year, including number and type ofcontacts, to allow fo r historical comparison. " 5. Integrating best practices from police departments across the country and around the world. PPB is expected to report on efforts made to identify learnings from other departments and integrate those learnings into the Bureau's community engagement work. This metric includes, but is not limited to, attendance at corzferences outside of Portland, training by personnel from outside ofPortland, and changes to policies and practices inspired by learnings from other jurisdictions. The Community Engagement Plan addresses these metrics in aiming to ensure data-driven assessment and refinement, strategies for engaging with historically difficult to reach communities, and improving communications with the public.
See https://www.portlandoregon.gov/police/article/744534. The PCCEP is tasked with holding PPB accountable to its community engagement strategies, and PPB has pledged to work with the PCCEP to evaluate the Plan in action. To that end, the City has completed the community survey required by Paragraph 146 and presented the survey analysis to the PCCEP. Likewise, PPB continues to communicate with the public, not just through the PCCEP, but also through direct contact, City Council presentations, and numerous community groups and • stakeholders. In addition to the City's above-described presentations to the PCCEP, PPB has also reported on community activities in each precinct and produced the annual report as described below. PPB likewise took part in conferences, such as National Association of Civilian Oversight of Law Enforcement, and outside training with the Metropolitan D.C. Police Depaiiment.
150. Annually, PPB shall issue a publicl y available PPB Annual Repoti, which shall include a summary of its problem-solving and community policing activities. A draft of the Annual Report shall be provided to the PCCEP for review and comment before the report is finalized and released to the public. Once released, PPB shall hold at least one meeting in each precinct area and at a City Council meeting, annuall y, to present its Annual Repoti and to educate the community about its efforts in community policing, in regard to the use of force, and about PPB 's policies and laws governing pedestrian stops, stops and detentions, and biased-free policing, including a civilian 's responsibilities and freedoms in such encounters.
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Case 3:12-cv-02265-SI Document 212 Filed 01/24/20 Page 28 of 29

Status

Analysis

PPB released a 2017 Annual Report in December 2018, after providing a draft to the PCCEP for review and comment. See PPB 2017 Annual Report, available at https://www.portlandoregon.gov/police/article/7 l 1973 . The PCCEP provided comments and made recommendations, including to release the report in a more timely fashion , acknowledge challenges in addition to accomplishments, and present the 2017 and 2018 reports in each precinct area and at a City Council hearing. See PCCEP Recommendation Number 004, Feb. 26, 2019, available at https://www.portlandoregon.gov/pccep/article/727017. PPB accepted the recommendations, pledging to incorporate responsive data in the 2018 report.
PPB released a 2018 Annual Report in July 2019, along with translations and additional links to background information , after again providing a draft to the PCCEP for review and comment. See PPB 2018 Annual Report, available at https://www.portlandoregon.gov/police/79379. The PCCEP discussed the 2018 Annual Report at its July meeting, adopting recommendations formulated at the si,1bcommittee level. See https://www.portlandoregon.gov/pccep/atiicle/737042 (July meeting minutes); https://www.youtube.com/watch?v=N3N6666BHek (July meeting video); https ://www.po11landoregon .gov/pccep/artic1e/737446 (recommendations). PPB accepted the PCCEP's recommendations, pledging to incorporate responsive information in the 2019 Annual Report.
PPB ' s three precinct commanders held meetings to discuss the 2018 Annual Repoti on August 14 (North), August 21 (East), and August 28 (Central). See https://www.portlandoregon.gov/pol ice/article/73 9229 (Notih); https ://www.portlandoregon .gov/po lice/article/739230 (East); and https ://www.po1ilandoregon.gov/police/a1iicle/739231 (Central). PPB's Chief, Danielle Outlaw, presented the 2018 Annual Repoti at the afternoon session of City Council on October 2, 2019. Her remarks are available at: https://www.portlandoregon.gov/video/ player/?tab=council .

151. PCCEP shall meet as needed to accomplish their objectives as set forth in the PCCEP Plan. PCCEP shall hold regular Town Hall meetings which shall be open to the public. To the extent that PCCEP meetings are subject to the Oregon Public Meetings Law, or similar regulatory or statutory requirements, the City shall be responsible to give advice necessary to the PCCEP to ensure compliance with those laws and agrees to represent PCCEP in any challenges regarding compliance with those laws .

Status

Analysis

Beginning in November 2018, the PCCEP has held monthly, three-hour, open public meetings to accomplish the objectives set forth in the PCCEP Plan. See https ://www.p0t1landoregon.gov/pccep/78093 (meeting agendas and minutes); https://www.youtube.com/channel/UCOWloX39iMCY-OO-qeqLTxg (meeting videos). The PCCEP has addressed overnance issues, received various

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presentations on police issues, taken public comment, and developed, discussed, and voted on recommendations regarding police-community interactions.
The PCCEP has organized into five committees: (1) a steering committee; (2) a settlement agreement and policy subcommittee; (3) a subcommittee for people with mental illness; (4) a youth subcommittee; and (5) a subcommittee addressing race, ethnicity, and other groups. The PCCEP fonned these subcommittees after input from the public, including members of the amici groups, the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC) and the Mental Health Alliance (MHA). The Steering Committee has held monthly open meetings since December 2018. See Steering Committee Materials, available at https ://www.portlandoregon .gov/pccep/79067. The PCCEP ' s other four committees have also held regular public meetings following their formation in January 2019. See PCCEP Subcommittee Materials, available at https://www.portlandoregon.gov/pccep/78723 .
The PCCEP has hosted regular, town-hall-style meetiqgs to take public comment, including in concert with the CompIiance Officer's presentation of its Quarterly Reports in January, April, July, and October 2019. The PCCEP has also held town-hall-style meetings independent of the Compliance Officer to solicit community views on policing issues, such as racial profiling, body-worn cameras, and gun violence. In sum, the PCCEP has consistently performed the work required by the PCCEP Plan and the Settlement Agreement.

152. The City shall provide PCCEP members with appropriate training necessary to comply with requirements of City and State law.

Status

Analysis

The City Attorney' s Office has provided multiple rounds of in-person training on the requirements of local law. The City and amicus groups have also provided background materials for PCCEP members and alternates. City staff has provided timely written and verbal responses to PCCEP member questions. The City continues to be responsive to the PCCEP's requests for training and teambuilding opportunities. The PCCEP has been generally responsive to City staff guidance with regard to process-related concerns, such as the importance of timely setting agendas so the City can announce the information to the broader community in line with public meeting laws and the PCCEP Plan.

23

 
 U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:12−cv−02265−SI

REOPENED

United States of America v. City of Portland Assigned to: Judge Michael H. Simon Case in other court: 9th Circuit Court of Appeals, 14−35903 Cause: 42:14141 Violent Crime Control and Law Enforcement Act of 1994
Plaintiff

Date Filed: 12/17/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Billy J. Williams United States Attorney's Office 1000 SW Third Avenue Suite 600 Portland, OR 97204 503−727−1108 Fax: 503−727−1117 Email: bill.williams@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Buehler United States Department of Justice Civil Rights Division 950 Pennsylvania Ave, NW−PHB Washington, DC 20530 202−353−1100 Fax: 202−514−0212 Email: brian.buehler@usdoj.gov TERMINATED: 08/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrian L. Brown US Attorney's Office District of Oregon 1000 S.W. Third Avenue Suite 600 Portland, OR 97204 503−727−1003 Fax: 503−727−1117 Email: adrian.brown@usdoj.gov TERMINATED: 06/27/2017

David W. Knight U.S. Department of Justice Disability Rights Section 950 Pennsylvania Ave, NW − NYA Washington, DC 20530 202−616−2110 Fax: 202−307−1197 Email: david.knight@usdoj.gov TERMINATED: 10/15/2015

Janice E. Hebert U.S. Attorney's Office 1000 SW Third Avenue Suite 600 Portland, OR 97204−2902 503−727−1011 Fax: 503−727−1117

Email: caseview.ecf@usdoj.gov TERMINATED: 01/08/2018
Jared Hager U.S. Attorney's Office District of Oregon, Civil Division 1000 SW 3rd Ave Suite 600 Portland, OR 97204 503−727−1120 Fax: 503−727−1117 Email: jared.hager@usdoj.gov ATTORNEY TO BE NOTICED
Laura L. Coon USDOJ Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−514−1089 Fax: 202−514−0212 Email: laura.coon@usdoj.gov ATTORNEY TO BE NOTICED
Michelle A. Jones Department of Justice 605 D St. NW Washington, DC 20004 202−305−3642 Fax: 202−514−0212 Email: michelle.jones2@usdoj.gov TERMINATED: 10/26/2015
R. Jonas Alexander Geissler U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, DC 20530 202−353−8866 Fax: 202−514−6903 Email: jonas.geissler@usdoj.gov ATTORNEY TO BE NOTICED
Thomas J. Morse U.S. Deptartment of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−305−4039 Fax: 202−514−6903 Email: jack.morse@usdoj.gov TERMINATED: 07/30/2015
Renata Gowie U.S. Attorney's Office District of Oregon 1000 SW Third Ave, Suite 600 Portland, OR 97204 503−727−1021 Fax: 503−727−1117 Email: renata.gowie@usdoj.gov ATTORNEY TO BE NOTICED
V.

Defendant City of Portland

represented by Denis M. Vannier City Attorney's Office 1221 SW Fourth Avenue Room 430 Portland, OR 97204 503−823−4047 Fax: 503−823−3089 Email: denis.vannier@portlandoregon.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Landrum Multnomah County Attorney's Office 501 SE Hawthorne Blvd. Suite 500 Portland, OR 97214 (503) 988−3138 Fax: (503) 988−3377 Email: David.Landrum@multco.us TERMINATED: 12/26/2017
David L. Woboril City Attorney's Office 1221 S.W. Fourth Avenue Room 430 Portland, OR 97204 (503) 823−4047 Fax: (503) 823−3089 Email: david.woboril@portlandoregon.gov TERMINATED: 10/14/2015
Ellen C. Osoinach City of Portland Office of the City Attorney 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503−823−4047 Fax: (503) 823−3089 Email: ellen.osoinach@portlandoregon.gov TERMINATED: 06/28/2017
James H. Van Dyke City Attorney's Office 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503−823−4047 Fax: (503)823−3089 Email: jim.vandyke@portlandoregon.gov TERMINATED: 08/29/2014
Judy S. Prosper Office of City Attorney 1221 SW 4th Avenue, Rm 430 Portland, OR 97204 503−823−4047 Fax: 503−823−3089 Email: judy.prosper@portlandoregon.gov TERMINATED: 06/28/2017
Mark P. Amberg City of Portland Office of City Attorney

V. Intervenor Defendant Portland Police Association
Amicus Albina Ministerial Alliance Coalition for Justice and Police Reform
Amicus

1221 SW Fourth Avenue Room 430 Portland, OR 97204 503−823−4047 Fax: 503−823−3089 Email: mark.amberg@portlandoregon.gov TERMINATED: 11/26/2019 ATTORNEY TO BE NOTICED
Tracy Pool Reeve City of Portland City Attorney's Office 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503−823−4055 Fax: 503−823−3089 Email: Tracy.Reeve@portlandoregon.gov ATTORNEY TO BE NOTICED
represented by Anil Karia Public Safety Labor Group 3021 NE Broadway Portland, OR 97232 (866) 486−5556, Ex. 701 Fax: (866) 401−2201 Email: anil@pslglawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kristen A. Chambers Wyse Kadish LLP 900 SW Fifth Avenue Suite 2000 Portland, OR 97204 503−228−8448 Fax: 503−273−9135 Email: kac@wysekadish.com ATTORNEY TO BE NOTICED
Shauna M. Curphey Curphey & Badger. P.A. 520 SW 6th Ave., Suite 1040 Portland, OR 97204 5035412848 Email: scurphey@curpheylaw.com TERMINATED: 12/21/2016
Jessica Ashlee Albies Albies & Stark, LLC 210 SW Columbia Street, Suite 1850 Portland, OR 97204 503−308−4770 Fax: 503−427−9292 Email: ashlee@albiesstark.com ATTORNEY TO BE NOTICED

Mental Health Alliance

represented by Juan C. Chavez PO Box 5248 Portland, OR 97208 503−944−2270 ext. 212 Fax: 971−275−1839 Email: jchavez@ojrc.info LEAD ATTORNEY ATTORNEY TO BE NOTICED
Franz H. Bruggemeier Oregon Justice Resource Center P.O. Box 5248 Portland, OR 97208 503−944−2270 Email: fbruggemeier@ojrc.info ATTORNEY TO BE NOTICED

Date Filed 12/17/2012 12/17/2012
12/17/2012 12/17/2012
12/17/2012 12/17/2012 12/18/2012 12/18/2012 12/18/2012 12/18/2012 12/18/2012 12/19/2012

# Docket Text
1 Complaint. (fee exempt status selected (AUSA)) Jury Trial Requested: No. Filed by United States of America against The City of Portland (Attachments: # 1 Civil Cover Sheet). (Brown, Adrian) (Entered: 12/17/2012)
2 Notice of Case Assignment to Judge Michael H. Simon and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 4/16/2013. Joint Alternate Dispute Resolution Report is due by 5/16/2013. Pretrial Order is due by 5/16/2013. Ordered by Judge Michael H. Simon. (cib) (Entered: 12/17/2012)
3 Joint Motion for Settlement Agreement and Conditional Dismissal of Action. Filed by United States of America. (Attachments: # 1 Proposed Order) (Brown, Adrian) (Entered: 12/17/2012)
4 Memorandum in Support of Joint Motion to Enter Settlement Agreement and Conditionally Dismiss Action. Filed by United States of America. (Related document(s): Motion for Settlement 3 .) (Attachments: # 1 Attachment 1) (Brown, Adrian) (Entered: 12/17/2012)
5 Declaration of Billy J. Williams . Filed by United States of America. (Related document(s): Motion for Settlement 3 .) (Brown, Adrian) (Entered: 12/17/2012)
6 Declaration of Clay Roberts Neal . Filed by United States of America. (Related document(s): Motion for Settlement 3 .) (Attachments: # 1 Attachment 1) (Brown, Adrian) (Entered: 12/17/2012)
7 Motion to Intervene . Oral Argument requested. Filed by Portland Police Association. (Karia, Anil) (Entered: 12/18/2012)
8 Memorandum in Support of Motion to Intervene. Filed by Portland Police Association. (Related document(s): Motion to intervene 7 .) (Karia, Anil) (Entered: 12/18/2012)
9 Declaration of Anil S. Karia in Support of Motion to Intervene. Filed by Portland Police Association. (Related document(s): Motion to intervene 7 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Karia, Anil) (Entered: 12/18/2012)
10 Order − Setting a Status Conference for 12/21/2012 at 09:30AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/18/2012)
11 Notice of Appearance of Ellen C. Osoinach appearing on behalf of City of Portland titled as "Defendant City of Portland's Notice of Appearance" Filed by on behalf of City of Portland (Osoinach, Ellen) (Entered: 12/18/2012)
12 Unopposed Motion for Extension of Time to File a Response/Reply to PPA's Motion to Intervene (ECF #7) to Motion to Intervene 7 . Filed by United States of America. (Brown, Adrian) (Entered: 12/19/2012)

12/19/2012 12/19/2012 12/20/2012 12/20/2012 12/20/2012 12/21/2012
01/08/2013 01/08/2013 01/08/2013
01/22/2013 01/22/2013 01/22/2013 01/22/2013 01/22/2013

13 Declaration of Adrian Brown in Support of Unopposed Motion for Extension of Time to Respond to PPA's Motion to Intervene. Filed by United States of America. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 12 .) (Brown, Adrian) (Entered: 12/19/2012)
14 ORDER − Granting Plaintiff's Unopposed Motion for Extension of Time to File a Response to PPA's Motion to Intervene 12 . Response is due by 1/22/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/19/2012)
15 Unopposed Motion for Extension of Time to Respond to Portland Police Association's Motion to Intervene. Filed by City of Portland. (Osoinach, Ellen) (Entered: 12/20/2012)
16 Affidavit in Support of Motion for Extension of Time. Filed by City of Portland. (Related document(s): Motion for Extension of Time 15 .) (Osoinach, Ellen) (Entered: 12/20/2012)
17 ORDER − Granting Defendant's Motion for Extension of Time to Respond to Portland Police Association's Motion to Intervene 15 . Response is due by 1/22/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/20/2012)
18 MINUTES of Status Conference: Order − The Court adopts the following schedule: (1) January 8, 2013: Any motions to intervene will be deemed timely if filed by this date; (2) January 22, 2013: (a) All responses due to motions to intervene; and (b) All parties and any other interested persons may file written comments and suggestions regarding the notice, timing, conduct, and other processes of the anticipated Fairness Hearing; (3) February 5, 2013: All replies due in support of motions to intervene; and (4) February 19, 2013: HEARING scheduled at 9:00 a.m. in Courtroom 13B to address all pending motions to intervene and to discuss all procedures relating to the anticipated Fairness Hearing. Adrian L. Brown, Amanda Marshal, Michelle A. Jones and Laura Coon present as counsel for plaintiff(s). Ellen Osoinach, James VanDyke and Anil Karia present as counsel for defendant(s). Court Reporter: Jill Erwin. Judge Michael H. Simon presiding. (mja) (Entered: 12/21/2012)
19 Motion to Intervene . Oral Argument requested. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Attachments: # 1 Attachment 1) (Albies, Jessica) (Entered: 01/08/2013)
20 Memorandum in Support of AMA Coalition's Motion to Intervene. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Related document(s): Motion to intervene 19 .) (Albies, Jessica) (Entered: 01/08/2013)
21 Declaration of Doctor LeRoy Haynes, Jr. in Support of The AMA Coalition's Motion to Intervene. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Related document(s): Motion to intervene 19 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11) (Albies, Jessica) (Entered: 01/08/2013)
22 Memorandum in Support Regarding Fairness Hearing. Filed by Portland Police Association. (Karia, Anil) (Entered: 01/22/2013)
23 Memorandum Suggesting Processes for Anticipated Fairness Hearing. Filed by City of Portland. (Osoinach, Ellen) (Entered: 01/22/2013)
24 Unopposed Motion for Order To Set Procedures for Fairness Hearing. Filed by United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit Public Comment Form) (Brown, Adrian) (Entered: 01/22/2013)
25 Response in Opposition to Motion to Intervene 7 , Motion to Intervene 19 Oral Argument requested. Filed by United States of America. (Attachments: # 1 Attachment Notice Letter, # 2 Attachment Findings Letter, # 3 Attachment Statement of Intent) (Brown, Adrian) (Entered: 01/22/2013)
26 Response in Support of Conditional Grant to Motion to Intervene 7 . Filed by City of Portland. (Osoinach, Ellen) (Entered: 01/22/2013)

01/22/2013 02/05/2013 02/05/2013 02/05/2013 02/14/2013 02/19/2013
02/19/2013
02/26/2013
03/05/2013
04/08/2013

27 Response in Support of Conditional Grant to Motion to Intervene 19 . Filed by City of Portland. (Osoinach, Ellen) (Entered: 01/22/2013)
28 Reply to Defendant's and Plaintiff's Opposition to Motion to Intervene 19 . Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 02/05/2013)
29 Reply In Support to Motion to Intervene 7 . Filed by Portland Police Association. (Karia, Anil) (Entered: 02/05/2013)
30 Supplemental Declaration of Anil S. Karia In Support of Motion to Intervene. Filed by Portland Police Association. (Related document(s): Reply to Motion 29 .) (Attachments: # 1 Exhibit A) (Karia, Anil) (Entered: 02/05/2013)
31 Notice of Appearance of R. Jonas Alexander Geissler appearing on behalf of United States of America Filed by on behalf of United States of America (Geissler, R. Jonas) (Entered: 02/14/2013)
32 Opinion and Order − Portland Police Associations Motion to Intervene 7 is GRANTED in PART and DEFERRED IN PART. The PPA is permitted to intervene at this time only in the remedy phase of this litigation, with leave to renew its Motion to Intervene in a liability phase if such a phase becomes necessary. The AMA Coalitions Motion to Intervene 19 is DENIED in PART and DEFERRED in PART, with leave to renew its Motion to Intervene (and file an amended complaint in intervention) in a liability phase if such a phase becomes necessary. Although the AMA Coalition may not formally intervene in the "remedy phase, the Court GRANTS the AMA Coalition enhanced amicus curiae status as set forth in the Opinion and Order. The Court further Orders that the United States, the City, the PPA, and the AMA Coalition provide the several reports and briefing, if necessary, as directed by this Opinion and Order. The next status conference will be held on Tuesday, March 5, 2013 at 12:15. Signed on 2/19/13 by Judge Michael H. Simon. (mja) (Entered: 02/19/2013)
33 MINUTES of Status Conference: Status of case discussed as stated on the record. See Opinion and Order 32 . Adrian Brown, R. Jonas Alexander Geissler and Billy Williams present as counsel for Plaintiff United States. Anil Karia present as counsel for Defendant−Intervenor Portland Police Association. James Van Dyke and Ellen Osoinach present as counsel for Defendant City of Portland. Jessica Ashlee Albies and Shauna M. Curphey present as counsel for amicus AMA Coalition. Court Reporter: Jill Erwin. Judge Michael H. Simon presiding. (mja) Modified on 2/21/2013 to correct party type(mja). (Entered: 02/20/2013)
34 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on February 19, 2013, before Judge Michael H. Simon, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 3/8/2013. Redaction Request due 3/22/2013. Redacted Transcript Deadline set for 4/1/2013. Release of Transcript Restriction set for 5/31/2013. (Erwin, Jill) (Entered: 02/26/2013)
35 MINUTES of Status Conference: Status Conference held. The parties reported that they have agreed on the selection of the Hon. Paul J. De Muniz, former Chief Justice of the Oregon Supreme Court, to serve as their mediator. The Court approves the parties' proposed mediation agreement and directs the parties to file a Joint Status Report not later than April 8, 2013. Adrian Brown, R. Jonas Alexander Geissler, Michelle Jones, Laura Coon and Billy Williams present as counsel for Plaintiff United States. Anil Karia present as counsel for Defendant−Intervenor Portland Police Association. Ellen Osoinach present as counsel for Defendant City of Portland. Jessica Ashlee Albies and Shauna M. Curphey present as counsel for amicus AMA Coalition. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 03/05/2013)
36 Joint Status Report . Filed by All Parties. (Brown, Adrian) (Entered: 04/08/2013)

04/09/2013 04/10/2013 04/22/2013 04/23/2013 06/07/2013 06/10/2013
06/21/2013 07/18/2013
08/20/2013
10/17/2013 10/18/2013 11/08/2013

37 Order − As requested by the parties in the Joint Status Report 36 , the filing of another Joint Status Report is due by 4/22/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/09/2013)
38 Notice of Appearance Filed by United States of America (Morse, Thomas) (Entered: 04/10/2013)
39 Joint Status Report . Filed by All Parties. (Brown, Adrian) (Entered: 04/22/2013)
40 Order − As requested by the parties in the Joint Status Report 39 , the Court is extending the deadline for the completion of mediation to 6/7/2013. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/23/2013)
41 Joint Status Report . Filed by All Parties. (Brown, Adrian) (Entered: 06/07/2013)
42 ORDER − As requested by the parties in their Joint Status Report dated June 7, 2013 41 , the Court shall hold a status conference on Thursday, July 18, 2013 at 10:00 a.m. in Courtroom 13B to set a briefing schedule for the matters discussed in the Court's Order of February 19, 2013 32 ; in addition, the parties' request to file a supplemental report not later than June 21, 2013, regarding the resolution of the issues raised by the AMA is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/10/2013)
43 Joint Status Report . Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform, City of Portland, United States of America. (Brown, Adrian) (Entered: 06/21/2013)
44 MINUTES of Proceedings: Status Conference held. Counsel advised the Court that an agreement has been reached between USA, City of Portland and AMA Coalition. The Court addressed with the parties factors and issues involved in determining the procedural course of action to follow in resolving this action. All parties agree that trial shall be bifurcated as to the issues of liability and remedies. The Court identified specific issues the parties are to address in additional briefs, which shall be filed as follows: Opening briefs are due by October 21, 2013 (not to exceed 35 pages). Response briefs are due November 4, 2013 (not to exceed 35 pages). Reply briefs are due November 18, 2013 (not to exceed 10 pages). Oral argument is set for December 3, 2013 at 10:00 a.m., in Courtroom #13B. If not otherwise waived, the parties may postpone Rule 26(a) disclosures. Adrian Brown; Bill Williams; R. Jonas Geissler (by phone); Jack Morse (by phone), and Laura Coon (by phone) present as counsel for plaintiff(s). Ellen Osoinach and David Woboril present as counsel for defendant(s). Anil Karia present as counsel for Intervenor Portland Police Association. Counsel Shauna M. Curphey and J. Ashley Albies present as counsel for Amicus Albina Ministeral All. Court Reporter: Jill Erwin. Judge Michael H. Simon presiding. (kb) (Entered: 07/18/2013)
45 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on July 18, 2013, before Judge Michael H. Simon, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/30/2013. Redaction Request due 9/13/2013. Redacted Transcript Deadline set for 9/23/2013. Release of Transcript Restriction set for 11/21/2013. (Erwin, Jill) (Entered: 08/20/2013)
46 Joint Motion for Extension of Time − Continuance of Briefing Schedule. Filed by United States of America. (Brown, Adrian) (Entered: 10/17/2013)
47 ORDER − Granting the Parties' Joint Motion for Extension of Time − Continuance of Briefing Schedule 46 as follows: Opening Briefs are due by 11/12/2013. Responses are due by 11/25/2013. Replies are due by 12/2/2013. Resetting the Oral Argument Hearing from 12/3/2013 to 12/17/2013 at 10:00AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 10/18/2013)
48 Joint Status Report and Request for Stay of Deadlines. Filed by United States of America. (Brown, Adrian) (Entered: 11/08/2013)

11/12/2013 12/02/2013 12/18/2013 12/19/2013
12/19/2013 12/23/2013 12/30/2013 02/05/2014 02/10/2014
02/13/2014 02/18/2014

49 Order − Pursuant to the joint request of all the parties, all current case deadlines are stayed. The parties shall confer on future deadlines in advance of the 12/17/2013 status conference. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/12/2013)
50 Scheduling Order by Judge Michael H. Simon. Order − At the City of Portland's request, the Court is resetting the Status Conference from 12/17/2013 to 12/19/2013 at 01:30PM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 12/02/2013)
51 Unopposed Motion for Order to Set Procedures for Fairness Hearing (Amended). Filed by United States of America. (Attachments: # 1 Attachment Proposed Order and Exhibit A) (Brown, Adrian) (Entered: 12/18/2013)
52 MINUTES of Status Conference: Order − Status Conference held. The Court and the Parties discussed the procedures for a fairness hearing regarding the parties' jointly proposed Settlement Agreement. Order − A Fairness Hearing is set for 2/18/2014 at 09:00AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, Billy J. Williams and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Harry Auerbach and Mark Amburg present as counsel for the City of Portland. Anil Karia present as counsel for Portland Police Association. Shauna M. Curphey present as counsel for amicus party Albina Ministerial Alliance Coalition for Justice and Police Reform . Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 12/19/2013)
53 Order Setting Fairness Hearing and Procedures. Signed on 12/19/13 by Judge Michael H. Simon. (Attachments: # 1 Testimony Form, # 2 Notice of Fairness Hearing) (mja) (Entered: 12/19/2013)
54 Notice of Withdrawal of Objections to Proposed Settlement Agreement Filed by Portland Police Association (Attachments: # 1 Exhibit A) (Karia, Anil) (Entered: 12/23/2013)
55 Amicus Notice of Collaborative Agreement Regarding the Proposed Settlement Agreement Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Attachments: # 1 Exhibit A) (Albies, Jessica) (Entered: 12/30/2013)
56 Scheduling Order by Judge Michael H. Simon. Order − Setting a Telephone Status Conference for 2/10/2014 at 09:00AM. The Court will provide the parties with a call−in number prior to the conference by separate email. Ordered by Judge Michael H. Simon. (mja) (Entered: 02/05/2014)
57 MINUTES of Telephone Conference: Order − Modifying deadline set in 53 for United States to provide pre−hearing submission from February 11 to February 13 at 9:00AM; Granting a continuing objection by all four parties to any evidence presented at the Fairness Hearing not in conformance with Federal Rules of Evidence (including, but not limited to, relevance, cumulative testimony, inadmissible hearsay, lack of personal knowledge or other foundation, argumentativeness, and inadmissibility of compromise offers and negotiations); Discussing other Fairness Hearing logistics and procedures as stated on the record. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, Anil Karria, Shauna M. Curpney and Jessica Ashlee Albies present as counsel for defendant(s). Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 02/10/2014)
58 Notice of Summaries of Written Submissions for Fairness Hearing in Compliance with Court's Order (ECF #53) Filed by All Plaintiffs (Attachments: # 1 Exhibit A) (Brown, Adrian) (Entered: 02/13/2014)
59 MINUTES of Fairness Hearing before Judge Michael H. Simon. Testimony from the public and parties given. Court is in recess until 2/19/2014 at 08:30AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Anil Karia, Shauna M. Curphey and Jessica Ashlee Albies present as counsel for defendant, intervenor defendant and amicus party. Court Reporter: Jill Erwin and Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 02/18/2014)

02/19/2014
02/28/2014 03/05/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/24/2014
04/14/2014 04/21/2014 04/25/2014 04/28/2014

60 MINUTES of Fairness Hearing before Judge Michael H. Simon : Testimony from the public and parties given and the record was closed for public oral testimony. The record shall be held open one week, until Wednesday, February 26, 2014, for additional written public testimony. Any person or organization wishing to provide written testimony may submit it by delivering or mailing the testimony to the Clerk of the Court, Civil Intake, Fairness Hearing Comments, United States District Court, District of Oregon, 1000 SW Third Avenue, Suite 700, Portland, OR 97204, or emailing to mary_austad@ord.uscourts.gov. The Court anticipates asking the Parties written questions by February 28, 2014, and will file them in the Court record. The Parties shall have until March 11, 2014, to submit post−hearing memoranda. A final hearing is scheduled for March 24, 2014, at 9:00 a.m. in Courtroom 13B. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Anil Karia, Shauna M. Curphey and Jessica Ashlee Albies present as counsel for defendant, intervenor defendant and amicus party. Court Reporter: Jill Erwin and Dennis Apodaca. Judge Michael H. Simon presiding. (mja) Modified on 2/20/2014 to correct email (mja). (Entered: 02/19/2014)
61 Post−Hearing Questions. The Court presents the attached questions to the four parties and requests that any responses be filed not later than 3/11/2014. Signed on 2/28/2014 by Judge Michael H. Simon. (sm) (Entered: 02/28/2014)
62 Notice of Appearance of David W. Knight appearing on behalf of United States of America Filed by on behalf of United States of America (Knight, David) (Entered: 03/05/2014)
63 Memorandum in Support of Acceptance of Settlement Agreement and Response to Questions from the Court. Filed by United States of America. (Related document(s): Order 61 .) (Brown, Adrian) (Entered: 03/11/2014)
64 Memorandum in Support OF ENTRY OF PROPOSED SETTLEMENT AGREEMENT. Filed by Portland Police Association. (Karia, Anil) (Entered: 03/11/2014)
65 Declaration of Anil S. Karia IN SUPPORT OF ENTRY OF PROPOSED SETTLEMENT AGREEMENT. Filed by Portland Police Association. (Attachments: # 1 Exhibit A) (Karia, Anil) (Entered: 03/11/2014)
66 Brief in Response to Questions from the Court. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Related document(s): Order 61 .) (Albies, Jessica) (Entered: 03/11/2014)
67 Brief "City of Portland's Post Hearing Brief". Filed by City of Portland. (Related document(s): Order 61 .) (Osoinach, Ellen) (Entered: 03/11/2014)
68 MINUTES of Proceedings before Judge Michael H. Simon. Order − The parties have until 4/14/2014 to submit additional briefing. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen C. Osoinach, David Woboril, Anil Karia, Shauna M. Curpney and Jessica Ashlee Albies present as counsel for defendant(s). Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 03/24/2014)
69 Order − At the Parties' request, the Court is extending the deadline for the filing of additional briefing from 4/14/2014 to 4/21/2014. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/14/2014)
70 Scheduling Order by Judge Michael H. Simon. Order − At the Parties' request, the Court is extending the deadline for the filing of additional briefing from 4/21/2014 to 4/28/2014. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/21/2014)
71 Scheduling Order by Judge Michael H. Simon. Order − At the parties' request, the Court is setting a Telephone Status Conference for 4/28/2014 at 01:30PM. The Court will provide the parties with a call−in number by separate email. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/25/2014)
72 Scheduling Order by Judge Michael H. Simon. Order − Due to a conflict in the court reporter's schedule, the Court is resetting the TIME set for the Telephone Conference from 4/28/2014 at 1:30PM to 4/28/2014 at 02:00PM. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/28/2014)

04/28/2014
05/08/2014 05/20/2014
05/30/2014 06/20/2014 06/20/2014
06/20/2014 06/24/2014 06/24/2014

73 MINUTES of Telephone Status Conference: Order − At the request of the parties, a further Telephone Status Conference is set for 5/8/2014 at 01:30PM. The Court will provide the parties with a call−in number prior to the conference. Adrian L. Brown, Billy J. Williams, Michelle A. Jones, David Knight, and R. Jonas Alexander Geissler present as counsel for plaintiff(s). Ellen Osoinach, David Worbil present as counsel for Defendant City of Portland. Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Albies and Shauna Curphey present as counsel for Amicus party Albina Ministerial Alliance Coalition for Justice and Police Reform. Court Reporter: Bridget Montero. Judge Michael H. Simon presiding. (mja) (Entered: 04/28/2014)
74 Scheduling Order by Judge Michael H. Simon. Order − At the parties' request, the Court is resetting the Telephone Status Conference from 5/8/2014 to 5/30/2014 at 01:30PM. The Court will provide the parties with a call−in number prior to the conference. Ordered by Judge Michael H. Simon. (mja) (Entered: 05/08/2014)
75 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephone Conference held on April 18, 2014 before Judge Michael H. Simon, Court Reporter Bridget Montero, telephone number 714−873−7248. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/30/2014. Redaction Request due 6/13/2014. Redacted Transcript Deadline set for 6/23/2014. Release of Transcript Restriction set for 8/21/2014. (sm) (Entered: 05/20/2014)
76 MINUTES of Telephone Conference: Order − The parties have until 6/24/2014 to submit additional briefing. Responses are due by 7/2/2014. Amanda Marshall, Michelle A. Jones, R. Jonas Alexander Geissler and David W. Knight present as counsel for plaintiff(s). Ellen C. Osoinach and David L. Woberil present as counsel for defendant(s). Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Albies and Shauna Curphey present as counsel for Amicus party Albina Ministerial Alliance Coalition for Justice and Police Reform. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 05/30/2014)
77 Joint Motion to Enter Settlement Agreement and Conditional Dismissal of Action. Filed by City of Portland. (Attachments: # 1 Exhibit A) (Osoinach, Ellen) (Entered: 06/20/2014)
78 ORDER − On May 30, 2014, the Court granted the parties' request to have until June 24, 2014, to submit additional briefing on the issue of whether the Court should grant the original Joint Motion for Settlement 3 , with responses due by July 2, 2014. 76 . On June 20, 2014, Plaintiff United States, Defendant City of Portland, and Intervenor−Defendant Portland Police Association filed a Joint Motion to Enter Settlement Agreement, which contains a modified condition of dismissal. 77 The original briefing schedule remains. Any Party, including Plaintiff United States, Defendant City of Portland, Intervenor−Defendant Portland Police Association, or Enhanced Amicus Albina Ministerial Alliance Coalition for Justice and Police Reform, may submit additional briefing by June 24, 2014, on whether the Court should grant or deny the original Joint Motion for Settlement 3 or the modified Joint Motion 77 , with responses due by July 2, 2014. There shall be no further extensions of the briefing schedule. The Court will take the matter under advisement on July 3, 2014. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/20/2014)
79 Brief in Support of the Court's Proposed Periodic Hearings. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 06/20/2014)
80 Memorandum in Support of Agreed Order Entering Settlement Agreement Or, Alternatively, For Entry of Settlement Agreement and Separate Order Requiring Status Conferences. Filed by United States of America. (Knight, David) (Entered: 06/24/2014)
81 Memorandum in Support OF JOINT MOTION TO ENTER SETTLEMENT AGREEMENT AND CONDITIONAL DISMISSAL OF ACTION. Filed by Portland Police Association. (Related document(s): Motion − Miscellaneous 77 .) (Karia, Anil) (Entered: 06/24/2014)

06/24/2014 07/02/2014 07/02/2014 07/02/2014 08/29/2014 10/27/2014 10/28/2014 11/26/2014 12/01/2014
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12/30/2014

82 Memorandum in Support OF JOINT MOTION TO ENTER SETTLEMENT AGREEMENT AND CONDITIONALLY DISMISS ACTION. Filed by City of Portland. (Related document(s): Motion − Miscellaneous 77 .) (Attachments: # 1 Exhibit 1) (Osoinach, Ellen) (Entered: 06/24/2014)
83 Response to the City of Portland's Memorandum in Support of Joint Motion to Enter Settlement Agreement and Conditionally Dismiss Action. Filed by United States of America. (Related document(s): Memorandum in Support of Motion 82 .) (Knight, David) (Entered: 07/02/2014)
84 Brief in Support of Entry of Settlement Agreement and Separate Order Requiring Periodic Changes. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 07/02/2014)
85 Response to Joint Motion to Enter Settlement Agreement and Conditional Dismissal of Action 77 . Filed by City of Portland. (Attachments: # 1 Exhibit 1−10) (Osoinach, Ellen) (Entered: 07/02/2014)
86 ORDER − The Parties' Joint Motion to Enter Settlement Agreement (ECF No. 3 ) and alternative Joint Motion to Enter Settlement Agreement (ECF No. 77 ) are GRANTED IN PART AND DENIED IN PART, as set forth in this Order. Signed on 8/29/2014 by Judge Michael H. Simon. (mja) (Entered: 08/29/2014)
87 Notice of Appeal to the 9th Circuit from Order on Motion for Settlement, Order on Motion − Miscellaneous,, 86 Filing fee $505 collected; Agency Tracking ID 0979−3880756: . Filed by City of Portland. (Attachments: # 1 Attachment Representation Statement) (Osoinach, Ellen) (Entered: 10/27/2014)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 87 . Case Appealed to 9th Circuit Court of Appeals Case Number 14−35903 assigned. (dsg) (Entered: 10/28/2014)
88 Transcript Designation and Order Form before Judge Simon. Court Reporter: Dennis Apodaca. regarding Notice of Appeal, 87 . Filed by City of Portland. Transcript is due by 1/2/2015. (Attachments: # 1 Attachment Transcripts Requested) (Osoinach, Ellen) (Entered: 11/26/2014)
89 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Continued Fairness Hearing held on March 24, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/11/2014. Redaction Request due 12/29/2014. Redacted Transcript Deadline set for 1/5/2015. Release of Transcript Restriction set for 3/5/2015. (Apodaca, Dennis) (Entered: 12/01/2014)
90 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on March 5, 2013 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
91 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on December 19, 2013 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)

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92 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on February 10, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
93 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on March 24, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
94 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on May 30, 2014 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
95 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on December 21, 2012 before Judge Michael H. Simon, Court Reporter Jill Erwin, telephone number (503) 326−8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/9/2015. Redaction Request due 1/23/2015. Redacted Transcript Deadline set for 2/2/2015. Release of Transcript Restriction set for 4/2/2015. (Apodaca, Dennis) (Entered: 12/30/2014)
96 (VACATED See Dkt # 97 ) Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference. Signed on 7/10/2015 by Judge Michael H. Simon.
ORDER − By letter dated June 16, 2015, the United States, the City of Portland, the Portland Police Association, and the Albina Ministerial Alliance Coalition for Justice and Police Reform (collectively, the "Parties") requested the District Court to indicate its approval of the Parties' jointly proposed Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference. After reviewing the Parties' joint proposal, the Court indicates its approval. Further, because the Court has retained jurisdiction over this matter, the Court has signed the proposed Amended Order and directs that it be entered as part of the record in this case. Judge Michael H. Simon (mja) Modified on 7/20/2015 pursuant to Order Dkt # 97 (mja). (Entered: 07/10/2015)
97 ORDER − At the request of the Circuit Mediator and the Parties, the Court hereby VACATES its Amended Order Entering Settlement Agreement 96 , entered on July 10, 2015. If and when this case is remanded to the Court by the Ninth Circuit without further directions, the Court intends to re−sign and re−enter this Order at that time at the request of the Parties. See Fed. R. App. P. 12.1. Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/20/2015)
98 Order from USCA for the 9th Circuit, re Notice of Appeal 87 . The parties joint motion for remand is granted. This appeal is remanded to the district court for the limited purpose of adopting and entering the parties proposed Amended Order Entering Settlement Agreement. REMANDED. (dsg) (Entered: 07/30/2015)

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99 Amended Order Entering Settlement Agreement Conditionally Dismissing Litigation, and Setting First Annual Status Conference. Signed on 7/30/2015 by Judge Michael H. Simon. (mja) (Entered: 07/30/2015)
100 Motion to Substitute Attorney Brian Buehler for Thomas J. Morse. Filed by United States of America. (Buehler, Brian) (Entered: 07/30/2015)
101 ORDER − Granting Motion to Substitute Attorney 100 Brian Buehler in place of Thomas J. Morse for United States of America added as counsel of record. Signed on 7/30/2015 by Judge Michael H. Simon. (mja) (Entered: 07/30/2015)
102 Scheduling Order by Michael H. Simon. The Court has just realized that it inadvertently set the first annual status conference concerning the settlement implementation in this matter on the Jewish high holiday of Rosh Hashanah. Thus, the status conference is RESET from Monday, September 14, 2015, to Wednesday, September 16, 2015, still at 9:00 A.M. in Courtroom 13B. The Court apologizes for any inconvenience that the Court's error or this corrective change may cause. (bb) (Entered: 08/20/2015)
103 Scheduling Order by Judge Michael H. Simon. At the request of the parties, the Status Conference RESET for 09/16/2015 is VACATED and is RESET for 10/21/2015 at 02:00 PM in Portland Courtroom 13B before Judge Michael H. Simon. (bb) (Entered: 08/20/2015)
104 MANDATE of USCA for the 9th Circuit, USCA # 14−35903, re Notice of Appeal 87 . The parties joint motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. See Fed. R. App. P. 42(b). This order served on the district court shall act as and for the mandate of this court. (dsg) (Entered: 09/21/2015)
105 Notice of Periodic Compliance Assessment Report Filed by All Plaintiffs (Attachments: # 1 Attachment 1, # 2 Attachment 2) (Brown, Adrian) (Entered: 09/29/2015)
106 Letter from Sharon Maxwell. (mja) (Entered: 10/07/2015)
107 Order Setting Agenda for First Post−Approval Annual Status Conference. Signed on 10/13/2015 by Judge Michael H. Simon. (mja) (Entered: 10/13/2015)
108 Report "First Quarterly Report of the Compliance Office and Community Liaison". Filed by City of Portland. (Osoinach, Ellen) (Entered: 10/13/2015)
109 Status Report by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 10/14/2015)
110 Notice of Attorney Withdrawal: Filed by City of Portland (Osoinach, Ellen) (Entered: 10/14/2015)
111 Notice of Attorney Substitution:Attorney Jared D. Hager is substituted as counsel of record in place of Attorney David W. Knight Filed by United States of America (Hager, Jared) (Entered: 10/15/2015)
112 Notice Defendant City of Portland's Notice of Compliance Reporting Filed by City of Portland (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Osoinach, Ellen) (Entered: 10/21/2015)
113 MINUTES of First Annual Status Conference: Order − Setting the Second Annual Status Conference for 10/25/2016 at 01:00PM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, R. Jonas Alexander Geissler and Janice Hebert present as counsel for Plaintiff. Ellen C. Osoinach, Tracey Pool Reeve and Mark Amberg present as counsel for Defendant City of Portland. Anil S. Karia present as counsel for Intervenor−Defendant Portland Police Association. J. Ashlee Albies and Shauna M. Curphey present as counsel for Albina Ministerial Alliance Coalition for Justice and Police Reform. Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 10/21/2015)
114 Notice of Attorney Withdrawal: of Michelle Jones. Filed by United States of America (Buehler, Brian) (Entered: 10/26/2015)

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10/26/2016

115 Notice of Appearance of Janice E. Hebert appearing on behalf of United States of America Filed by on behalf of United States of America (Hebert, Janice) (Entered: 11/12/2015)
117 Notice of Change of Address. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Albies, Jessica) (Entered: 02/01/2016)
118 Notice of Change of Address. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Curphey, Shauna) (Entered: 03/01/2016)
119 Notice of Change of Address. Filed by Portland Police Association (Karia, Anil) (Entered: 04/02/2016)
120 Report COCL Semi−Annual Compliance Report Third and Fourth Quarters. Filed by City of Portland. (Osoinach, Ellen) (Main Document 120 replaced on 7/7/2016) (cw). (Entered: 06/27/2016)
121 Clerk's Notice of Docket Correction regarding 120 Report. The PDF attached to this entry at filing was incorrect. The document was missing a case caption cover page. A corrected PDF has been uploaded and has replaced the incorrect attachment. The Notice of Electronic Filing will be regenerated to all parties. (cw) (Entered: 07/07/2016)
122 Order − At the request of the Defendant, the Court is authorizing the services of two ASL Interpreters for the Status Conference set for 10/25/2016 at 1:00PM in Portland, Courtroom 13B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 09/23/2016)
123 Notice of Appearance of Kristen A. Chambers appearing on behalf of Albina Ministerial Alliance Coalition for Justice and Police Reform Filed by on behalf of Albina Ministerial Alliance Coalition for Justice and Police Reform (Chambers, Kristen) (Entered: 10/18/2016)
124 Notice of Second Periodic Compliance Assessment Report Filed by United States of America (Attachments: # 1 Attachment) (Brown, Adrian) (Entered: 10/18/2016)
125 Notice of Appearance of Laura L. Coon appearing on behalf of United States of America Filed by on behalf of United States of America (Coon, Laura) (Entered: 10/19/2016)
126 Status Report by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Attachments: # 1 Attachment 1) (Albies, Jessica) (Entered: 10/19/2016)
127 Notice of Periodic Compliance Report. Filed by City of Portland (mja) (Entered: 10/19/2016)
128 Memorandum for Second Status Conference. Filed by City of Portland. (mja) (Entered: 10/19/2016)
129 Notice of Periodic Compliance Report Filed by City of Portland (Attachments: # 1 Exhibit Exhibit A − Cover Letter COCL Testimony for Status Conference, # 2 Exhibit Exhibit B − COCL Testimony for Status Conference) (Osoinach, Ellen) (Entered: 10/24/2016)
130 MINUTES of Second Annual Status Conference: Order − Setting the Third Annual Status Conference for 10/5/2017 at 10:00AM in Portland, Courtroom 13B, before Judge Michael H. Simon. Adrian L. Brown, Billy J. Williams, Laura L. Coon and J. Jonas Alexander Geissler present as counsel for Plaintiff. Ellen C. Osoinach, Judy Prosper and Mark Amberg present as counsel for Defendant City of Portland. Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Ashlee Albies present as counsel for Amicus Party Albina Ministerial Alliance Coalition for Justice and Police Reform. Judge Michael H. Simon presiding. ASL Interpreters Andrea Medlock and Richard Hall. Oath administered in Court. (mja) (Entered: 10/26/2016)
131 Submission by Dan Handelman. (mja) (Entered: 10/26/2016)

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132 Submission by Kathleen D. Saadat (mja) (Entered: 10/27/2016)
133 Order − At the Second Annual Status Conference held on October 25, 2016, the Court received the City of Portland's Exhibit 101, entitled "De−Escalation, Compassion & Respect, A Trilogy". Exhibit 101 is a video on DVD. Ordered by Judge Michael H. Simon. (mja) (Entered: 10/27/2016)
134 Notice of Appearance of Judy S. Prosper appearing on behalf of City of Portland Filed by on behalf of City of Portland (Prosper, Judy) (Entered: 11/02/2016)
135 Notice of Appearance of Mark P. Amberg appearing on behalf of City of Portland Filed by on behalf of City of Portland (Amberg, Mark) (Entered: 11/02/2016)
136 Status Report by United States of America. Filed by United States of America. (Brown, Adrian) (Entered: 11/02/2016)
137 Notice of Appearance of Tracy Pool Reeve appearing on behalf of City of Portland Filed by on behalf of City of Portland (Reeve, Tracy) (Entered: 11/03/2016)
138 Memorandum Titled as "Defendant City of Portland's Post Status Conference Memorandum". Filed by City of Portland. (Reeve, Tracy) (Entered: 11/03/2016)
139 Declaration of Tracy Reeve. Filed by City of Portland. (Related document(s): Memorandum 138 .) (Attachments: # 1 Exhibit A) (Reeve, Tracy) (Entered: 11/03/2016)
140 Order − The Court ORDERS the City to file not later than December 2, 2016, a written Supplemental Compliance Report, describing the steps taken to achieve compliance with Section IX of the Settlement Agreement. The Court further ORDERS that an interim status conference be held on Tuesday, January 31, 2017, at 2:00 p.m. in Courtroom 13B for the Parties to report on the status of any proposed changes to the Settlement Agreement and the appropriate steps to be taken by the Court when considering any such proposed changes. Signed 11/10/2017 by Judge Michael H. Simon. (mja) (Entered: 11/10/2016)
141 Supplemental Memorandum . Filed by City of Portland. (Osoinach, Ellen) (Entered: 12/02/2016)
142 Order Striking the Interim Status Conference Pending Decision on Defendant's Petition for Writ of Mandamus − The interim status conference that was scheduled at the request of the United States for January 31, 2017, at 2:00 p.m. is hereby stricken. If appropriate, the Court will reschedule a new interim status conference after the Ninth Circuit resolves the City's pending Petition for Writ of Mandamus. Signed on 12/14/2016 by Judge Michael H. Simon. (mja) (Entered: 12/14/2016)
143 Notice of Attorney Withdrawal: of Shauna Curphey Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Curphey, Shauna) (Entered: 12/21/2016)
144 Notice of Change of Address. for counsel J. Ashlee Albies Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform (Albies, Jessica) (Entered: 01/09/2017)
145 Order from USCA for the 9th Circuit re Notice of Appeal 87 . This petition for a writ of mandamus raises issues that warrant an answer. See Fed. R. App. P. 21(b). Accordingly, within 14 days after the date of this order, the real parties in interest shall file an answer. The district court, within 14 days after the date of this order, may address the petition if it so desires. The district court may elect to file an answer with this court or to issue an order and serve a copy on this court. Petitioner may file a reply within 5 days after service of the answer(s). The petition, answer(s), and any reply shall be referred to the next available motions panel. The Clerk shall serve this order on the district court and District Judge Michael H. Simon. (jtj) (Entered: 03/01/2017)
146 Notice of Periodic Compliance Report Filed by City of Portland (Osoinach, Ellen) (Entered: 03/08/2017)
147 Notice of Removal of Counsel Filed by United States of America (Brown, Adrian) (Entered: 06/27/2017)

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148 Defendant City of Portland's Notice of Attorney Withdrawal: Ellen Osoinach Filed by City of Portland (Reeve, Tracy) (Entered: 06/28/2017)
149 Defendant City of Portland's Notice of Attorney Withdrawal: Judy Prosper Filed by City of Portland (Reeve, Tracy) (Entered: 06/28/2017)
150 Notice of Appearance of David A. Landrum appearing on behalf of City of Portland Filed by on behalf of City of Portland (Landrum, David) (Entered: 06/28/2017)
151 Notice of Appearance of Denis M. Vannier appearing on behalf of City of Portland Filed by on behalf of City of Portland (Vannier, Denis) (Entered: 06/28/2017)
152 ORDER − The Third Annual Status Conference previously set for 10/5/2017 (ECF 130) is STRICKEN and will be reset, if appropriate, after the Ninth Circuit rules on the City of Portland's pending petition for a Writ of Mandamus. The Court further directs the parties to file not later than July 19, 2017, a status report (either jointly or separately) that includes: (1) what steps have been taken since the Second Annual Status Conference to bring the City of Portland into compliance with the Settlement Agreement; and (2) the parties' best estimate of when they expect the Ninth Circuit will rule on the City of Portland's pending petition for a Writ of Mandamus. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/05/2017)
153 Status Report by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Attachments: # 1 Attachment, # 2 Attachment) (Albies, Jessica) (Entered: 07/19/2017)
154 Joint Status Report United States, City of Portland, and Portland Police Association by City of Portland. Filed by City of Portland. (Reeve, Tracy) (Entered: 07/19/2017)
155 Notice Defendant City of Portland's Notice of Periodic Compliance Report Filed by City of Portland. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Reeve, Tracy) (Entered: 08/24/2017)
156 City of Portland's Notice of Attorney Withdrawal: David Landrum Filed by City of Portland. (Vannier, Denis) (Entered: 12/26/2017)
157 Stipulated Motion for Settlement Agreement Amendments. Filed by City of Portland. (Attachments: # 1 Exhibit Exhibit A − Joint Stipulated Order Entering Amended SA, Amended SA, and PCCEP, # 2 Exhibit Exhibit B − Proposed Amended Settlement Agreement Redline Version, # 3 Exhibit Exhibit C − 10.20.2017 AMAC Ltr to Mediation Participants, # 4 Exhibit Exhibit D − 11.21.2017 City of Portland Ltr to AMAC) (Vannier, Denis) (Entered: 12/26/2017)
158 Notice of Third Periodic Compliance Assessment Report Filed by United States of America. (Attachments: # 1 Attachment 1) (Hager, Jared) (Entered: 12/26/2017)
159 Unopposed Motion for Hearing for Fairness Hearing. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 12/27/2017)
160 Order of USCA for the 9th Circuit, USCA # 16−73878, re Notice of Appeal, 87 . Petitioner's motion to voluntarily dismiss this petition for writ of mandamus (Docket Entry No. 30) is granted. Fed. R. App. P. 42(b). The parties shall bear their own costs and attorneys' fees on appeal. A copy of this order shall serve as and for the mandate of this court. (jtj) (Entered: 01/03/2018)
161 Notice of Attorney Substitution:Attorney Renata A. Gowie is substituted as counsel of record in place of Attorney Janice E. Hebert Filed by United States of America. (Gowie, Renata) (Entered: 01/08/2018)
162 Notice of Change of Address. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Chambers, Kristen) (Entered: 01/16/2018)
163 Order − The Court hereby grants the AMAC's Motion for Fairness Hearing (ECF 159 ) and schedules both the requested Fairness Hearing on the Parties' Joint Stipulated Motion to enter Amended Settlement Agreement and the Third Annual Status Conference for Thursday, April 19, 2018, at 10:00 a.m. in Courtroom 15B. After conferring, the Parties shall file not later than April 5, 2018, a proposed agenda for the

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Fairness Hearing and Status Conference that provides sufficient time for argument by the Parties and for public comment. In addition, the proposed Amended Settlement Agreement shall not take effect absent express approval by the Court. See Settlement Agreement, 187 (ECF 4 −1). Signed 1/22/2018 by Judge Michael H. Simon. (mja) (Entered: 01/22/2018)
164 Scheduling Order by Judge Michael H. Simon. Order − At the parties' request, the Court is resetting the TIME set for the Fairness Hearing on the Parties' Joint Stipulated Motion to Enter Amended Settlement Agreement and Third Annual Status Conference from 4/19/2018 at 10:00AM to 4/19/2018 at 09:00AM in Portland, Courtroom 15B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) Modified on 4/4/2018 to correct hearing type (mja). (Entered: 04/03/2018)
165 Joint Motion for Order Setting Agenda. Filed by All Plaintiffs. (Hager, Jared) (Entered: 04/05/2018)
166 ORDER − The Court GRANTS the parties' Joint Motion for Order Setting Agenda for Third Annual Status Conference and Fairness Hearing (ECF 165 ) and adopts the proposed agenda. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/13/2018)
167 Order − At the request of the Defendant, the Court is authorizing as appropriate the services of two ASL Interpreters for a spectator at the Status Conference set for April 19, 2018 at 9:00AM in Portland, Courtroom 15B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) Modified on 4/18/2018 to add additional text (mja). (Entered: 04/17/2018)
168 Declaration of Mark Amberg . Filed by City of Portland. (Related document(s): Motion for Settlement, 157 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Amberg, Mark) (Entered: 04/18/2018)
169 Exhibits A − D re Stipulated Motion for Settlement Agreement Amendments 157 . Filed by City of Portland. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit D1, # 6 Exhibit D2, # 7 Exhibit D3, # 8 Exhibit D4, # 9 Exhibit D5) (Reeve, Tracy) (Entered: 04/18/2018)
170 Minutes of Fairness Hearing and Third Annual Status Conference: Order − The Parties' Stipulated Motion to Enter Amended Settlement Agreement (ECF 157 ) is GRANTED in PART and DENIED in PART as stated on the record. The United States to submit proposed form of order. Setting a Status Conference for 10/4/2018 at 09:00AM in Portland, Courtroom 15B, before Judge Michael H. Simon. Billy J. Williams, Jared Hager, Laura L. Cowall, R. Jonas Alexander Geissler, and Renata Gowie present as counsel for Plaintiff. Denis M. Vannier, Tracey Pool Reeves, and Mark P. Amberg present as counsel for Defendant City of Portland. Anil Karia present as counsel for Interveor Defendant Portland Police Association. Kristen A. Chambers and Jessica Ashlee Albies present as counsel for Amicus Party Albina Ministerial Alliance Coalition for Justice and Police Reform. Court Reporters: Dennis Apodaca and Jill Jessup. ASL Interpreters: Melanie DeLeon and Richard Hall. Judge Michael H. Simon presiding. (mja) (Entered: 04/19/2018)
171 Order − The Court ORDERS that, except for entering the Amended Settlement Agreement attached hereto, the provisions of this Court's July 30, 2015 Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Status Conference (ECF 99 ) otherwise remain in force. Signed on 5/15/2018 by Judge Michael H. Simon. (mja) (Entered: 05/15/2018)
172 Notice of Attorney Withdrawal: Brian Buehler Withdrawing. Filed by United States of America. (Buehler, Brian) (Entered: 08/13/2018)
173 Motion to Appear as Amicus Curiae . Filed by Mental Health Alliance. (Chavez, Juan) (Entered: 09/10/2018)
174 Declaration of Counsel . Filed by Mental Health Alliance. (Related document(s): Motion to appear as amicus curiae 173 .) (Attachments: # 1 Exhibit, # 2 Exhibit) (Chavez, Juan) (Entered: 09/10/2018)
175 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Fairness Hearing/Status Conference held on April 19, 2018 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182 or

09/14/2018
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09/27/2018 09/27/2018 09/27/2018 09/28/2018 10/01/2018 10/01/2018

dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 9/21/2018. Redaction Request due 10/5/2018. Redacted Transcript Deadline set for 10/15/2018. Release of Transcript Restriction set for 12/13/2018. (Apodaca, Dennis) (Entered: 09/14/2018)
176 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on October 25, 2016 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 9/21/2018. Redaction Request due 10/5/2018. Redacted Transcript Deadline set for 10/15/2018. Release of Transcript Restriction set for 12/13/2018. (Apodaca, Dennis) (Entered: 09/14/2018)
177 Order − At the Defendant's request, the Court is authorizing as appropriate the services of two ASL Interpreters for a spectator at the Status Conference set for October 4, 2018 at 9:00AM in Courtroom 15B. Ordered by Judge Michael H. Simon. (mja) (Entered: 09/18/2018)
178 Response in Opposition to Motion to Appear as Amicus Curiae 173 . Filed by Portland Police Association. (Karia, Anil) (Entered: 09/23/2018)
179 Declaration of Anil S. Karia . Filed by Portland Police Association. (Related document(s): Response in Opposition to Motion 178 .) (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B) (Karia, Anil) (Entered: 09/23/2018)
180 Response in Opposition to Motion to Appear as Amicus Curiae 173 . Filed by United States of America. (Hager, Jared) (Entered: 09/24/2018)
181 Response in Opposition to Motion to Appear as Amicus Curiae 173 . Filed by City of Portland. (Attachments: # 1 Exhibit Mental Health Association Testimony Fairness Hearing 4−19−18, # 2 Exhibit Transcript Excerpts Fairness Hearing and Status Conference 4−19−18) (Reeve, Tracy) (Entered: 09/24/2018)
182 Notice of Period Compliance Reports Filed by City of Portland. (Attachments: # 1 Exhibit Exhibit A − COCL Compliance and Outcome Assessment Report Jan 2017−Sept 2017, # 2 Exhibit Exhibit B − COCL Compliance and Outcome Assessment Report Mental Health Response Sept 2017−March 2018, # 3 Exhibit Exhibit C − COCL Compliance and Outcome Assessment Report Use of Force Oct 2017−July 2018) (Reeve, Tracy) (Entered: 09/26/2018)
183 Memorandum in Support of Final Approval of Settlement Agreement Amendments. Filed by City of Portland. (Related document(s): Order, 171 .) (Reeve, Tracy) (Entered: 09/27/2018)
184 Declaration of Tracy Reeve . Filed by City of Portland. (Related document(s): Memorandum 183 .) (Attachments: # 1 Exhibit City of Portland Resolution No. 37384 As Amended) (Reeve, Tracy) (Entered: 09/27/2018)
185 Declaration of Mandi Hood . Filed by City of Portland. (Related document(s): Memorandum 183 .) (Attachments: # 1 Exhibit PCCEP Members, # 2 Exhibit PPB Letter to PCCEP Participants) (Reeve, Tracy) (Entered: 09/27/2018)
186 Order − The Mental Health Alliance may file a reply in support of its motion for enhanced amicus curiae status (ECF 173 ) on or before Monday, October 1, 2018, at noon. Ordered by Judge Michael H. Simon. (mja) (Entered: 09/28/2018)
187 Reply Brief to Briefs in Opposition to Motion to Appear as Amicus Curiae 173 . Filed by Mental Health Alliance. (Chavez, Juan) (Entered: 10/01/2018)
188 ORDER − The Court appoints the MHA as amicus curiae in this case. The MHA shall have the right to file briefs in any matter before the Court in which briefing is sought, the same as the parties. The MHA also shall have the right to present at any Court proceeding, status conference, hearing, or oral argument, including the upcoming

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six−month interim status conference on October 4, 2018. Counsel for the MHA may sit in front of the bar at the October 4th hearing. Signed on 10/1/2018 by Judge Michael H. Simon. (mja) (Entered: 10/01/2018)
189 Order Setting Agenda for Six−Month Interim Status Conference. Signed on 10/1/2018 by Judge Michael H. Simon. (mja) (Entered: 10/01/2018)
190 Status Report by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 10/02/2018)
191 Status Report re the Court's Questions at the Third Annual Status Conference by All Plaintiffs. Filed by All Plaintiffs. (Hager, Jared) (Entered: 10/02/2018)
192 AMENDED MINUTES OF STATUS CONFERENCE: Order − The United States, the Portland Police Association, and the City of Portland's oral and renewed joint motion for final approval of the amended settlement agreement is DEFERRED until the next Interim Status Conference for the reasons stated on the record. Order − The Court sets the next Interim Status Conference for June 6, 2019 at 09:00AM in Portland, Courtroom 15B, before Judge Michael H. Simon. Billy J. Williams, Jared Hager, R. Jonas Alexander Geissler, and Renata Gowie present as counsel for Plaintiff. Tracy Pool Reeve, Denis M. Vannier, and Mark. P. Amberg present as counsel for Defendant City of Portland. Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Ashlee Albies and Kristen A. Chambers present as counsel for Amicus Albina Ministerial Alliance Coalition for Justice and Police Reform. Juan C. Chavez present as counsel for Amicus Mental Health Alliance. Court Reporter: Jill Jessup. ASL Interpreters: Rich Hall and Lisa Crawford (Oath on File with the Court) Judge Michael H. Simon presiding. Modified on 10/9/2018 to add the United States and Portland Police Association to oral motion for final approval of settlement. (mja). (Entered: 10/04/2018)
193 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on October 4, 2018, before Judge Michael H. Simon, Court Reporter Jill L. Jessup, telephone number (503)326−8191 or email at jill_jessup@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter at (503)326−8191 or email at jill_jessup@ord.uscourts.gov or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 11/9/2018. Redaction Request due 11/23/2018. Redacted Transcript Deadline set for 12/3/2018. Release of Transcript Restriction set for 1/31/2019. (jjcr) (Entered: 11/02/2018)
194 Notice of Periodic Compliance Reports Filed by City of Portland. (Attachments: # 1 Exhibit A − COCL Compliance and Outcome Assessment Report Training and EIS Oct 2017 − Oct 2018) (Reeve, Tracy) (Entered: 12/21/2018)
195 Notice of Fourth Periodic Compliance Assessment Report Filed by United States of America. (Attachments: # 1 Attachment 1) (Hager, Jared) (Entered: 05/04/2019)
196 Notice of Period Compliance Reports Filed by City of Portland. (Attachments: # 1 Exhibit A − COCL Compliance and Outcome Assessment Reports Officer Accountability and Community Engagement Oct 2017 − Dec 2018) (Reeve, Tracy) (Entered: 05/07/2019)
197 Notice of Periodic Compliance Reports Filed by City of Portland. (Attachments: # 1 Exhibit A − COCL Compliance and Outcome Assessment Report All Sections with Remaining Compliance Issues) (Reeve, Tracy) (Entered: 05/24/2019)
198 Joint Motion for Order Setting Agenda for Interim Status Conference. Filed by United States of America. (Hager, Jared) (Entered: 05/31/2019)
199 Supplement Memorandum in Support of Final Approval of Settlement Agreement Amendments. Filed by City of Portland. (Related document(s): Motion for Settlement, 157 .) (Reeve, Tracy) (Entered: 06/03/2019)
200 Declaration of Nicole Grant . Filed by City of Portland. (Related document(s): Supplement 199 .) (Attachments: # 1 Exhibit 1 − PCCEP Facilitation Report, # 2 Exhibit 2 − PCCEP Orienation Agenda, # 3 Exhibit 3 − PCCEP Orientation Packet, #

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4 Exhibit 4 − PCCEP Alternate Pool Plan, # 5 Exhibit 5 − PCCEP Alternate Bios) (Reeve, Tracy) (Entered: 06/03/2019)
201 Status Report June 2019 by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 06/04/2019)
202 ORDER − The parties' joint motion for order setting agenda for interim status conference (ECF 198 ) is GRANTED. The Court adopts the agenda set forth in the parties' motion. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/05/2019)
203 Status Report by Mental Health Alliance. Filed by Mental Health Alliance. (Chavez, Juan) (Entered: 06/05/2019)
204 Declaration of Juan C. Chavez. Filed by Mental Health Alliance. (Related document(s): Status Report 203 .) (Chavez, Juan) (Entered: 06/05/2019)
205 Order Authorizing ASL Interpreters. Signed on 6/5/2019 by Judge Michael H. Simon. (mja) (Entered: 06/05/2019)
206 MINUTES OF INTERIM STATUS CONFERENCE: ORDER − Final approval of the amended settlement agreement is DEFERRED until the next Interim Status Conference for the reasons stated on the record. Order − The Court sets the next Interim Status Conference for February 25, 2020, at 09:00AM in Portland, Courtroom 15B, before Judge Michael H. Simon. Jonas Alexander Geissler, Jared Hager, Laura L. Cowall, and Billy J. Williams present as counsel for Plaintiff. Tracy Pool Reeve, Denis M. Vannier, and Mark P. Amberg present as counsel for Defendant City of Portland. Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Ashlee Albies and Kristen A. Chambers present as counsel for Amicus Albina Ministerial Alliance Coalition for Justice and Police Reform. Juan C. Chavez present as counsel for Amicus Mental Health Alliance. Court Reporter: Dennis Apodaca. ASL Interpreters: Melanie Deleon and Debbie Arment (Oath on File with the Court) Judge Michael H. Simon presiding. (mja) (Entered: 06/06/2019)
207 Amicus Notice of Change of Address. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 07/23/2019)
208 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference Hearing held on June 6, 2019 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/1/2019. Redaction Request due 8/15/2019. Redacted Transcript Deadline set for 8/26/2019. Release of Transcript Restriction set for 10/23/2019. (Apodaca, Dennis) (Entered: 07/25/2019)
209 Notice of Periodic Compliance Reports Filed by City of Portland. (Attachments: # 1 Exhibit A − COCL Compliance and Outcome Assessment Report All Sections with Remaining Compliance Issues) (Reeve, Tracy) (Entered: 09/03/2019)
210 City of Portland's Notice of Attorney Withdrawal: Mark Amberg Filed by City of Portland. (Reeve, Tracy) (Entered: 11/26/2019)
211 Notice of Periodic Compliance Reports Filed by City of Portland. (Attachments: # 1 Exhibit A − COCL Compliance and Outcome Assessment Report All Sections with Remaining Compliance Issues and 2019 Updates on Other Sections) (Reeve, Tracy) (Entered: 11/26/2019)
212 Plaintiffs Notice of lnterim Compliance Assessment Report, Filed by United States of America. (rs) (Entered: 01/24/2020)
213 Order Authorizing ASL Interpreters. Signed on 1/29/2020 by Judge Michael H. Simon. (mja) (Entered: 01/29/2020)
214 Third Memorandum in Support Final Approval of Settlement Agreement Amendments. Filed by City of Portland. (Vannier, Denis) (Entered: 02/18/2020)

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04/17/2020
06/11/2020

215 Declaration of Tracy Reeve . Filed by City of Portland. (Related document(s): Memorandum in Support 214 .) (Attachments: # 1 Exhibit 1) (Vannier, Denis) (Entered: 02/18/2020)
216 Joint Motion for Order Setting Agenda. Filed by United States of America. (Hager, Jared) (Entered: 02/21/2020)
217 Status Report by Mental Health Alliance. Filed by Mental Health Alliance. (Chavez, Juan) (Entered: 02/24/2020)
218 Declaration of Juan C. Chavez . Filed by Mental Health Alliance. (Related document(s): Status Report 217 .) (Chavez, Juan) (Entered: 02/24/2020)
219 Declaration of Dr. Mark Leymon . Filed by Mental Health Alliance. (Related document(s): Status Report 217 .) (Chavez, Juan) (Entered: 02/24/2020)
220 Status Report by Albina Ministerial Alliance Coalition for Justice and Police Reform. Filed by Albina Ministerial Alliance Coalition for Justice and Police Reform. (Albies, Jessica) (Entered: 02/24/2020)
221 Notice of Appearance of Franz H. Bruggemeier appearing on behalf of Mental Health Alliance Filed by on behalf of Mental Health Alliance. (Bruggemeier, Franz) (Entered: 02/24/2020)
222 MINUTES OF INTERIM STATUS CONFERENCE: ORDER − The parties' joint motion for order setting agenda (ECF 216 ) is DENIED as MOOT. The Court defers final approval of the settlement agreement. Setting a further Interim Status Conference for Thursday, February 25, 2021 at 9:00 a.m. in Portland, Courtroom 15B, before Judge Michael H. Simon. R. Jonas Alexander Geissler, Jared Hager, Renata Gowie, and Billy J. Williams present as counsel for Plaintiff. Tracy Pool Reeve and Denis M. Vannier present as counsel for Defendant City of Portland. Anil Karia present as counsel for Intervenor Defendant Portland Police Association. Jessica Ashlee Albies and Kristen A. Chambers present as counsel for Amicus Albina Ministerial Alliance Coalition for Justice and Police Reform. Juan C. Chavez present as counsel for Amicus Mental Health Alliance. Court Reporter: Jill Jessup. ASL Interpreters: Melanie Deleon and Damon Thayer (Oath on File with the Court) Michael H. Simon presiding. (mja) (Entered: 02/25/2020)
223 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status Conference held on February 25, 2020, before Judge Michael H. Simon, Court Reporter Jill L. Jessup, telephone number (503)326−8191 or email at jill_jessup@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter at (503)326−8191 or email at jill_jessup@ord.uscourts.gov or PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/24/2020. Redaction Request due 5/8/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/16/2020. (jjcr) (Entered: 04/17/2020)
224 Notice of Periodic Compliance Reports Filed by City of Portland. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Reeve, Tracy) (Entered: 06/11/2020)

 
 Office of the Assistant Attorney Gelleral

u.s. Department of Justice
Civil Rights Division
Washingtoll, D.C. 20530

The Honorable Sam Adams Mayor City ofPOliland 1221 SW 4th Ave # 340 Portland, OR 97204-1900
RE: Investigation of the Portland Police Bureau
Dear Mayor Adams:
This letter reports the findings of the United States Department of Justice Civil Rights Division's and United States Attorney's Office for the District of Oregon's (collectively "DOJ") joint investigation ofthe Portland (Oregon) Police Bureau ("PPB"). We opened our investigation to consider whether PPB officers engage in a pattern or practice of using excessive force, with a patiicular focus on the use of force against people with mental illness or in mental health crisis. Our investigation was brought pursuant to the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141 ("Section 14141"). Section 14141 authorizes the United States to file a legal action when it has reasonable cause to believe that a law enforcement agency is engaging in activities that amount to a pattern or practice of violating the Constitution or laws of the United States.
While most uses of force we reviewed were constitutional, we find reasonable cause to believe that PPB engages in a pattern or practice of unnecessary or unreasonable force during interactions with people who have or are perceived to have mental illness. In this letter, we discuss the need for revised policies, training, supervision, and timely, thorough internal review of use of force in this context.
In making these findings, we recognize the challenges that police officers in Portland and elsewhere confront in addressing the needs of people with mental illness. Our findings take place against a backdrop of a mental health infrastructure that has a number of key deficiencies.

The absence of a comprehensive community mental health infrastructure often shifts to law enforcement agencies throughout Oregon the burden of being first responders to individuals in mental health crisis. Despite the critical gaps in the mental health system, police agencies must be equipped to interact with people in mental health crisis without resulting to unnecessary or excessive force. As Oregon’s main population center, Portland police officers encounter people with actual or perceived mental illness with increasing frequency. We are working separately with State officials in a constructive, collaborative manner to address the gaps in the mental health infrastructure. We are confident that the state-wide implementation of an improved holistic, effective community-based mental health infrastructure will be of enormous benefit to law enforcement agencies across the State, as well as to people with mental illness. Implementing these reforms will enhance public safety and officer safety.
We thank the City and PPB, in particular you, Mayor Adams, and Police Chief Michael Reese, for their cooperation throughout our investigation, and for initially inviting us into Portland to conduct this investigation. We acknowledge the professionalism of all of the City officials and counsel involved. In particular, we appreciate the openness and flexibility of the City and PPB personnel during our two site visits, as well as their diligence in providing requested information, including voluminous responsive documents in a timely fashion. Further, we are encouraged by PPB’s eagerness to improve its processes, as evident by the steps that PPB has already taken to address concerns raised during our investigation. PPB has not waited for our formal findings to begin the process of addressing the deficiencies that are outlined in this letter. We also commend PPB’s willingness to seek outside evaluation and consultation in numerous instances before our investigation. This leaves us optimistic that we will continue our collaborative relationship to craft sustainable remedies that address the deficiencies identified in this letter.
I. SUMMARY OF FINDINGS
The use of force is an essential part of law enforcement; however, it must be guided by policy and limited by the protections of the United States Constitution. While most force used by officers in Portland is appropriate, we find reasonable cause to believe that PPB is engaging in a pattern or practice of using excessive force in encounters involving people with actual or perceived mental illness. The pattern or practice is manifested in the following ways:
(1) Encounters between PPB officers and persons with mental illness too frequently result in a use of force when force is unnecessary or in the use of a higher level of force than necessary or appropriate, up to and including deadly force. We found instances that support a pattern of dangerous uses of force against persons who posed little or no threat and who could not, as a result of their mental illness, comply with officers’ commands. We also found that PPB employs practices that escalate the use of force where there were clear earlier junctures when the force could have been avoided or minimized. As described in greater detail below, examples of this use of excessive force include a December 2010 incident when
2

multiple officers resorted to repeated closed-fist punches and repeated shocking of a subject who was to be placed on a mental health hold.
(2) In particular, we found that PPB officers use electronic control weapons (“ECWs” (commonly referred to as “Tasers”)) in circumstances when ECW use is not justified or use ECWs multiple times when only a single use is justified in encounters with people with actual or perceived mental illness. We found instances that support a pattern of officers using multiple cycles of shock without waiting between cycles to allow the suspect to comply, or officers failing to utilize control tactics during ECW cycles to properly affect handcuffing without having to resort to repeated ECW shocks. Examples detailed below include an August 2010 incident when an officer repeatedly shocked an unarmed, naked subject who, as it turned out, was experiencing a diabetic emergency.
(3) In effectuating an arrest, officers are permitted to use only the level of force reasonably necessary to accomplish a legitimate government objective; however, we found that PPB officers use more force than necessary in effectuating arrests for low level offenses involving people who are or appear to be in mental health crisis. As detailed below, this includes, for instance, a May 2011 incident in which an officer punched an unarmed subject at least seven times in the face when responding to a call to check on the man’s well-being.
We conclude that this pattern or practice results from deficiencies in policy, training, and supervision. We recognize that many of the systemic deficiencies discussed in this letter originated prior to the current PPB administration, which has been aggressive in pursuing reform. Notably, throughout the course of this investigation, Chief Reese and his command staff have been proactive in instituting policy reforms to address our concerns and have already begun the process of correcting many of the issues raised in this report. By building on that initiative, and through strengthening of training, reducing the complexity and duration of the review and discipline processes and other measures, PPB can prevent unnecessary or unreasonable uses of force or self-identify incidents or patterns and undertake self-correcting action. We believe strongly that in addition to protecting constitutional rights, addressing this problem will increase officer safety. Officers need to be as prepared as possible for the situations that they face.
Our formal findings address use of force against people with actual or perceived mental illness. In addition, we also examined allegations that there is a failure to provide adequate and timely access to medical care in the aftermath of certain uses of force, and looked carefully at concerns flowing from apparent tensions between PPB and certain communities in Portland. We do not make any formal findings in these areas; however, our examination identified concerns regarding the failure to provide adequate and timely access to medical care and the need to strengthen community policing. These concerns, including issues of significance involving the relationship between PPB and the African American community, are discussed in Section VII of this letter.
3

Constitutional policing leads to increased public confidence, which in turns leads to greater public safety. Addressing the deficiencies identified in this letter will help ensure that PPB provides police services in a constitutional manner and increases its efficacy in protecting the community.
II. DOJ INVESTIGATION
On June 6, 2011, we notified you by letter that we were opening an investigation of PPB, pursuant to Section 14141, to determine whether PPB was engaged in a pattern or practice of unconstitutionally using excessive force, particularly against people with mental illness. Our investigation was prompted in part by the high number of officer involved shootings that involved people with mental illness.1
Our investigation has been exhaustive. We reviewed a large volume of documents from PPB, interviewed police and City of Portland officials, and met with diverse members of the Portland community. We also met with mental health services providers and officials from Multnomah County regarding the public mental health system’s role in PPB interventions for people in mental health crisis.
In reaching our findings, we relied on highly respected consultants who have extensive experience in the delivery of police services, including expertise in officer accountability measures and police interactions with people with mental illness. Accompanied by a veteran police chief, a psychiatrist who was instrumental in developing the Crisis Intervention Team (“CIT”) model, and an expert in police internal affairs, DOJ conducted two tours of PPB, as well as in-person and telephonic interviews of witnesses and organizations that work with PPB. The combined experience and knowledge of these nationally recognized law enforcement professionals have helped inform our findings. These professionals conducted independent analyses of certain PPB policies, uses of force, and other data.
During our tours, we met with PPB command staff, representatives from both of the officers’ unions, leadership from Internal Affairs, the Professional Standards Division, and the Training Department, among others. In addition to meeting with you, we met with several agencies and organizations outside of PPB that are critical to PPB’s mission, including the Bureau of Emergency Communications (“BOEC”), various local mental health providers, the City Auditor, representatives from the Independent Police Review (“IPR”), the Citizens Review Committee (“CRC”), and representatives from Multnomah County. Additionally, we heard from hundreds of community members through a multitude of platforms including in-person interviews, our toll free hotline and dedicated email address, and at an open-invitation town hall meeting.

1

In the last three years, PPB officers have used deadly force 12 times, nine of which involved people

affected by mental illness. We do not reach a separate finding regarding PPB uses of deadly force, specifically. We

note, however, that our review of these uses of force contributed to our findings.

4

The City and PPB have provided full and open cooperation in the investigation. They provided us with prompt and complete access to documents, information, and personnel. Consistent with our commitment to conduct the investigation in a transparent manner, we have provided technical assistance and advice to PPB during our investigation. We were gratified that PPB immediately undertook steps to address many of the concerns raised during those meetings. While we recommend additional reform, the efforts of PPB and its Chief thus far provide a solid foundation for sustainable measures that address our findings.

A. Portland, Oregon

III. BACKGROUND

According to recent Census data, Portland has an estimated population of 583,776, making it the 29th most populous city in the United States.2 Portland is Oregon’s most populous city and the second most populous city in the Pacific Northwest region, after Seattle, Washington. Approximately 9.4% of Portland’s population is Hispanic or Latino (of any race), 7.1% is Asian, and 6.3% is African-American.3

Oregon has one of the highest rates of homelessness in the United States, with a large percentage of the homeless population concentrated in Portland.4 According to the U.S. Department of Housing and Urban Development, 34.7% of sheltered homeless adults nationwide have substance abuse disorders, and 26.2 % have serious mental illness.5

B. Portland Police Bureau
Currently, PPB is a police force of approximately 1,200 employees, with approximately 980 sworn officers and 240 non-sworn staff.6 PPB currently divides Portland into three precincts (North, East, and Central), with each precinct led by a commander and divided into as many as 20 districts.7
For over a decade, the City of Portland has periodically faced accusations that PPB uses excessive force against civilians. Portland has paid out approximately $6 million in the last twenty years to settle lawsuits related to alleged police misconduct. On multiple occasions, the

2

Profile of General Population and Housing Characteristics: 2010, U.S. CENSUS BUREAU, available at

http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml (follow “Geographies” hyperlink; then follow “Places

within State” and “Portland city, Oregon”) (last visited Sep. 7, 2012).

3

Id.

4

Housing and Urban Development, The 2010 Annual Homeless Assessment Report at 22,

www.hudhre.info/documents/2010HomelessAssessmentReport.pdf (last visited Apr. 2, 2012).

5

Id. at 18.

6

CITY OF PORTLAND, OREGON, FY 2011-2012 Budget in Brief, available at

http://www.portlandonline.com/omf/index.cfm?c=55389&a=358662.

7

See Portland Police Bureau Precinct Map, http://www.portlandonline.com/police/index.cfm?c=43598&

(last visited Apr. 2, 2012).

5

City has attempted to study and address these issues. For instance, in 2003, Portland commissioned the Police Assessment Resource Center (“PARC”) to conduct an annual review of officer-involved shootings and deaths in police custody. PARC provided recommendations on measures PPB should take to reduce the occurrence of these events, issued an initial report in August 2003, with follow-up reports in December 2006 and February 2009. 8 Portland also convened a Use of Force Task Force (“Task Force”) to analyze statistics and trends in the use of force and deadly force, and retained the OIR Group to conduct an analysis of PPB’s officerinvolved shootings.
PPB has sought partnerships with various entities to improve its response to individuals with mental illness. For example, PPB has a relationship with Cascadia Behavioral Healthcare and can access their mobile mental health crisis response team, Project Respond, to provide PPB officers with assistance in certain mental health crisis situations. Due to resource limitations, Project Respond is unable to respond to many crises in a timely fashion, particularly after regular business hours, when such crises are more likely to occur. PPB also has developed a Mobile Crisis Unit, which helps connect individuals with mental illness with available mental health services. This unit is comprised of one police officer and a Project Respond worker. The program’s benefits are limited, however, because the Mobile Crisis Unit is not intended to be called in an actual crisis situation and only works during regular business hours. Despite PPB’s efforts to address concerns regarding officers’ use of force, the overall record and prevalence of troubling incidents indicate that a problem persists.
C. Serious Deficiencies in the Mental Health System
On November 11, 2010, DOJ began a separate but related investigation to examine the State’s compliance with Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999), with respect to the services the State provides to individuals with mental illness.9 Our state-wide investigation focuses on the needs of individuals with serious mental illness who enter high levels of care in acute in-patient psychiatric facilities, emergency rooms, jails, and prisons, largely because there are insufficient options for adequate community-based mental health services. Through our investigation, we assessed gaps in the State’s mental health system, which lead to an increase in police encounters with people with mental illness, including people who are in crisis. As one high-level officer told us, over his career, encounters with people in crisis have gone from a couple of times a

8

The Portland Police Bureau: Officer-Involved Shootings and In-Custody Deaths, from the 2003 PARC

Report, available at www.vera.org/download?file=667/363.209795pa_2.pdf.

9

During this investigation, DOJ met with more than 50 mental health stakeholders across Oregon, including

consumers, advocacy groups, providers, and law enforcement. DOJ also met with State mental health leadership,

including Governor John Kitzhaber, Oregon Health Authority Director Bruce Goldberg, and former Addictions and

Mental Health Director Richard Harris. In addition, DOJ reviewed numerous reports, studies, and documents

pertaining to Oregon’s mental health system, many of them provided by the State. While we have not made formal

findings in our ADA investigation, the State has undertaken a close collaboration with the Civil Rights Division to

leverage health care reform to address gaps in services.

6

month to a couple of times a day. This is an especially significant problem in Portland, the urban center for the State, with its large homeless population.

The State is engaged in a health care transformation process that will be designed to address many of these gaps. In the meantime, the current system places a large and increasing burden on law enforcement. Among the most significant issues are:

• A lack of an adequate support system to help people avoid a mental health crisis, including adequate community-based intensive services, supported housing, and early intervention. Many individuals receive services through only an emergency room or a jail.

• A lack of an adequate crisis response system to provide services to and help stabilize people in crisis. People in crisis are more likely to encounter the criminal justice system than the mental health system.

The Addictions & Mental Health Division (“AMH”) has a longstanding practice of delegating service delivery and decision making. Consequently, Oregon lacks a coordinated, statewide community mental health system. Individuals enrolled in the Oregon Health Plan are served through one of nine regional Mental Health Organizations, while non-Medicaid individuals are served through one of Oregon’s 36 county mental health programs. Services vary somewhat across Mental Health Organizations and vary drastically across counties. Generally, non-Medicaid individuals receive no intensive community-based services at all and, although Medicaid individuals receive some community-based services, the services that they receive fall far short of the necessary array. A very high number of these individuals live in Portland.

While some crisis services exist in Portland, due to the lack of a comprehensive statewide crisis system, there is an overreliance on local law enforcement, jails, and emergency rooms. Accordingly, when individuals experience a mental health crisis, there is inadequate capacity of mobile crisis teams, crisis walk-in/drop-off centers, and crisis apartments to help people remain in integrated, community-based settings. Instead, law enforcement often is the first responder to a crisis, and the officers have few if any options other than to take the individual in crisis to a jail, emergency room or institution, causing a rotating door in and out of the criminal justice system.

The State also lacks adequate capacity of community-based supports and services to keep individuals out of crisis. Adequate resources, such as sufficient numbers of Assertive Community Treatment teams, Intensive Case Management, peer support, and supported employment, are limited,10 while Intensive Case Management is being piloted only in Multnomah County.11 Consequently, individuals unnecessarily enter into, are at risk of entering

10

DHS Community Services Workgroup Report at 15, 18, 27 (March 2007).

11

Team listening tour meeting with Karl Brimner, Mental Health Director for Multnomah County (Dec. 16,

2010).

7

into, and cycle through jails, emergency rooms, hospitals, and institutions to receive treatment for their mental illness.
For a number of months, DOJ has been working collaboratively with State officials to resolve many of these outstanding issues. The gaps in the mental health system increase the encounters between PPB and persons with mental illness. PPB is often the first and sometimes the only responder to a crisis. This places both a burden and a responsibility on the Police Bureau to require that PPB policy, training, and supervision ensure that force be used against persons with mental illness only to the extent permitted by the Constitution.
IV. APPLICABLE LEGAL STANDARD
A. Pattern or Practice
Pursuant to Section 14141, the Attorney General, acting on behalf of the United States, is authorized to initiate a civil action against a state or local government for equitable and declaratory relief when there is reasonable cause to believe that law enforcement officers are engaged in a pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or federal law. A pattern or practice may be found by examples representing typical conduct, as opposed to isolated instances. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.16 (1977) (noting that the phrase “pattern or practice” “was not intended as a term of art,” but should be interpreted according to its usual meaning “consistent with the understanding of the identical words” used in other federal civil rights statutes); United States v. Big D. Enters., 184 F.3d 924, 930 (8th Cir. 1999) (applying Title VII definition of pattern or practice to Fair Housing Act claim). This understanding is consistent with the usual meaning of the words “pattern or practice.” See Webster’s Third New Int’l Dictionary 1657, 1780 (Philip Babcock Grove, ed., 2002) (defining “pattern” as “a representative instance: a typical example” and “practice” as “performance or application habitually engaged in”).
Consistent with this definition, courts interpreting the term in similar statutes have established that anecdotal evidence is sufficient; statistical evidence is not required. Catlett v. Mo. Highway & Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987) (interpreting “pattern or practice” in the Title VII context and citing Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08, 97 S. Ct. 2736, 2741 (1977) (for statistical evidence) and Briggs v. Anderson, 796 F.2d 1009, 1019 (8th Cir. 1986) (noting that “statistical evidence is not essential in proving” pattern or practice Title VII claim,” and anecdotal evidence may be relied upon)). For a court to find a pattern or practice, it does not need to find a set number of incidents or acts. See United States v. W. Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir. 1971) (“The number of [violations] . . . is not determinative . . . . In any event, no mathematical formula is workable, nor was any intended. Each case must turn on its own facts”).
8

B. Excessive Force
Excessive force claims in the context of an investigatory stop, arrest, or other “seizure” of a free individual are analyzed under the Fourth Amendment’s objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 394-95 (1989); see also Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007) (considering the “quantum of force” used relative to the availability of less severe alternatives). To determine whether the force used is reasonable, the nature and quality of the intrusion on the individual’s Fourth Amendment interests are balanced against the legitimate governmental interests at stake. Graham, 490 U.S. at 396; see also Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (same).
In making this determination, courts consider the totality of the circumstances, including: (a) the severity of the crime at issue; (b) whether the subject poses an immediate threat to the safety of the officers or others; (c) whether the subject is actively resisting or attempting to evade arrest; and (d) whether law enforcement could have used other methods to accomplish its purpose. 12 Graham, 490 U.S. at 396; Davis, 478 F.3d at 1054-56. The “most important” factor under Graham is whether the suspect posed an “immediate threat to the safety of the officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005). “A simple statement by an officer that he fears for his safety or the safety others is not enough; there must be objective factors to justify such a concern.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). These factors, however, are not exclusive. Courts also consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham, including “the availability of less intrusive alternatives to the force employed, whether proper warnings were given and whether it should have been apparent to officers that the person they used force against was emotionally disturbed.” Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011). Notably, “[e]ven when an emotionally disturbed individual is ‘acting out and inviting officers to use deadly force,’ the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.” Id. at 876.

12

PPB’s policy on physical force requires that officers “use only the force reasonably necessary under the

totality of the circumstances to perform their duties and resolve confrontations effectively and safely.” PPB Manual

of Policy and Procedure (“PPB Manual”) § 1010.20 (Jan. 2009). When determining if a member has used only the

force reasonably necessary to perform their duties, PPB states that it will consider the totality of circumstances,

including: the severity of the crime; the impact of the persons behavior on the public; the immediate threat to the

safety of officers, self, or others; the extent to which the person actively resisted efforts at control; whether the

person attempted to avoid control by flight; and the time, tactics, and resources available. Id. According to the PPB

Manual, force is only permissible to prevent or terminate the commission or attempted commission of an offense;

lawfully take a person into custody, make an arrest, or prevent an escape; prevent a suicide or serious self-inflicted

injury; defend the officer or another person from the use of physical force; and accomplish some official purpose or

duty that is authorized by law or judicial decree. Id. Officers are expected to display, over the course of their

career, the ability to regularly resolve confrontations without resorting to the higher levels of allowable force. Id.

9

Using a focused “decision-point” approach (also known as segmentation) to analyze each use of force incident, we considered each point when an officer made a decision that may have an effect on subsequent events, as opposed to focusing solely on the final decision to use force. The decision-point process allows the police supervisor to conduct more intensive and comprehensive reviews of the reasonableness of a particular use of force incident and to identify and address any flawed tactical decisions and training opportunities. According to the Ninth Circuit, “police tactic[s] that needlessly or unreasonably create a dangerous situation necessitating an escalation in the use of force” are “a course of action this circuit has expressly refused to endorse.” Deorle, 272 F.3d at 1282 n. 20 (citing Cunningham v. Gates, 229 F.3d 1271, 1291 n.23 (9th Cir. 2000)). Other courts have similarly denounced unnecessary escalation of force and have held that each individual use of force should be evaluated independently for reasonableness. See, e.g., Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994) (“[W]e carve up the incident into segments and judge each on its own terms to see if the officer was reasonable at each stage”); Livermore v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007) (noting that “the proper approach under Sixth Circuit precedent is to view excessive force claims in segments”); Wiegel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (“There is evidence that for three minutes the troopers subjected [the subject] to force that they knew was unnecessary to restrain him . . .”).
V. FINDINGS
We conducted an exhaustive investigation, in which we reviewed over 700 incident reports over an 18-month period, including Force Data Collection Reports (“FDCRs”) and supervisory After Action Reports (“AARs”),13 PPB’s policies and procedures, training materials, internal affairs files, and various other documents related to PPB’s use of force, as well as numerous interviews with current and former PPB officers and community members across the range of race, age and socio-economic status. As noted above, most uses of force we reviewed during this investigation were constitutional; however, we find reasonable cause to believe that PPB is engaged in a pattern or practice of unnecessary or unreasonable force against people with actual or perceived mental illness. This pattern or practice is manifest through the excessive and inappropriate use of ECWs and by using more force than necessary to effectuate arrests for lowlevel offenses. Below, we describe specific incidents which have been culled from a larger group of problematic cases, to illustrate this pattern.
A. Excessive Force against People Experiencing a Mental Health Crisis Generally
A significant percentage of encounters between individuals and police involve persons with mental illness. These encounters emerge in a range of contexts from responses to calls to

13

PPB Policy requires officers to fill out a FDCR anytime that they cause a physical injury or take a person to

the ground by applying force and requires supervisors to fill out an AAR whenever officers use certain types of

force, e.g., ECW deployment and canine use. PPB Manual §§ 940.00, 1010.20. Notably, the documents we

reviewed largely reflect only the officer’s account of what happened, but nevertheless reveal concerning patterns of

excessive force.

10

check on a person’s well-being to arrests for criminal behavior. We recognize the challenges that people with mental illness, especially people in a mental health crisis, pose to the delivery of police services. It is critical that PPB’s practices adequately take into account the populations that PPB encounters and serves. PPB must also take into account behaviors that are the product of mental illness in all encounters.
Police encounters with individuals who are mentally ill can quickly escalate. Practices and strategies to de-escalate these incidents to protect the safety of both the individual and the officer are required. There are systems law enforcement agencies can put in place to ensure that its officers can effectively de-escalate such encounters; minimize the risk of danger; and reduce the level of force needed to handle interactions with people in mental health crisis. It is critical that officers are adept at using these non-force policing tools, not only to protect themselves and others, but because individuals who suffer from mental illness are among the most vulnerable in our society, and neither they, nor their families, should be afraid to turn to the police for help. Properly applied, de-escalation begins long before the officer is faced with the choice of using force and will often make that decision unnecessary.
The law recognizes that police response to persons in mental health crisis requires special consideration. When dealing with someone with a mental illness, officers must take into account the subject’s mental and emotional state before using force. Deorle, 272 F.3d at 1282; Glenn, 673 F.3d at 871-80 (reversing a grant of summary judgment for the defendant police department when the police responded to a welfare call and within four minutes of their arrival shot with a beanbag gun a suicidal teenager armed with a pocketknife and then fatally shot him with a rifle). This is because “[t]he problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.” Deorle, 272 F.3d at 128283.
Even “when an emotionally disturbed individual is ‘acting out’ and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted . . . with a mentally ill individual.” Id. at 1283. The same reasoning applies to intermediate levels of force. Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010). As the Ninth Circuit poignantly stated:
A mentally ill individual is in need of a doctor, not a jail cell, and in the usual case – where such an individual is neither a threat to himself nor to anyone else – the government’s interest in deploying force to detain him is not as substantial as its interest in deploying that force to apprehend a dangerous criminal. Moreover, the purpose of detaining a mentally ill individual is not to punish him, but to help him. The government has an important interest in providing assistance to a person in need of psychiatric care; thus, the use of force that may be justified by that interest necessarily differs both in degree and in kind from the use of force
11

that would be justified against a person who has committed a crime or who poses a threat to the community. Id.
We found that PPB officers often do not adequately consider a person’s mental state before using force and that there is instead a pattern of responding inappropriately to persons in mental health crisis, resulting in a practice of excessive use of force, including deadly force, against them. Further, our review of incident reports and interviews with officers and community members shows little or no indication that the officers considered, or were even aware of, the many tools available to them to resolve interactions with individuals in mental health crisis using less force. We recognize that such tools cannot guarantee a positive outcome with minimal use of force in every instance. Moreover, not every encounter we reviewed was mishandled. Many officers handled difficult interactions with mentally ill persons in an exemplary manner. Nevertheless, we found that in many other instances officers escalate conflict despite the opportunity to de-escalate; rush in when they have the option of holding back; and continue to use force once the need for force has dissipated. The following examples illustrate the pattern or practice:
• In May 2011, officers were called to the home of a subject with a history of mental illness who had allegedly assaulted his mother and was reportedly in possession of a sword. When the officers arrived, the subject was in his bedroom and ignored the officers’ orders to come downstairs. Several officers approached the subject’s bedroom, opened the door, and commanded the subject to stand up and place his hands above his head. The subject stood up, but refused to place his hands on his head and walked towards the door. An officer shot the subject with a beanbag shotgun round to his leg. Another officer deployed his ECW on the subject’s back. This occurred despite the fact that the subject’s hands were visible, and the officers never observed a sword, or any other weapon, in the subject’s possession.
The intrusion on the individual’s Fourth Amendment rights is substantial, i.e., being shot with a bean bag gun and shocked with an ECW in the back. The government interest in using this level of force to execute this arrest is, at best, moderate: (1) The subject had allegedly assaulted his mother, which is a serious offense. (2) While the subject reportedly had a sword, the officers did not report seeing a sword, or any other weapon, nor being threatened with one. The officers did not report any aggressive behavior from the subject. Accordingly, any perceived threat to the officer based on the initial report of a sword was mitigated by the lack of any present threat at the time they applied force. (3) The suspect was neither evading arrest nor actively resisting arrest. Other relevant factors include that the officers were aware the person had a history of mental illness, but did not appear to take that into account. Also, there were less intrusive alternatives available than shooting the suspect with a bean bag gun and using an ECW on him, including keeping him confined to his room while waiting for a crisis intervention specialist to help communicate with him. The
12

totality of the circumstances indicates that the intrusion into the subject’s Fourth Amendment rights outweighed the legitimate government interest.
• In December 2010, two officers responded to a call to help Project Respond contact a subject that they wanted to evaluate for mental health purposes. The subject complied with the officers’ requests to come out of his room, place his hands on top of his head, and take a seat in the hallway. The officers searched him for weapons and did not find anything dangerous in his possession. Once seated, the subject began making incoherent statements, prompting the Project Respond workers to request that officers detain the subject on a mental health hold. When the officers went to grab the subject by his arms, he tensed up and began to pull away. The officers attempted to take the subject to the ground, but the subject rolled forward onto his back. The officers turned the subject onto his stomach, at which point the subject trapped his arms underneath his body. One officer drew his ECW and told the subject to “give us your hands or you’ll be tased,” and then applied it in drive stun mode to the subject’s back.14 The subject continued to pull away, and the officer applied his ECW “several” more times. Then one officer hit the subject up to six times with closed fist punches to the rib area. Another officer delivered a focused blow with his closed fist to the back of the subject’s neck/shoulder area. The officers remained unable to handcuff the subject and deployed another six ECW cycles in probe mode. The officers then handcuffed and transported the subject to a mental health hospital for evaluation.
The intrusion on the individual’s Fourth Amendment rights – being shocked with an ECW multiple times, in both probe and drive stun mode, and hit multiple times – is substantial. The government interest in using force to detain this individual pursuant to a mental health hold is moderate, at best: (1) the person was unarmed and did not engage in threatening conduct towards the officers or others at the time of arrest; (2) the officers were there to perform a welfare check, not to arrest someone for committing a crime; and (3) the subject offered passive resistance by pulling away from officers and not allowing himself to be handcuffed. Also relevant is the fact that the officers knew they were responding to a call to assist Project Respond make contact with a mentally ill subject, and thus should have been aware of the increased likelihood that the subject’s ability to understand or follow the officers’ commands is impaired. On balance, the intrusion into the subject’s Fourth Amendment rights outweighed the legitimate government interest.

14

A drive stun is the use of an ECW by direct contact to a subject, rather than by deploying wire probes

common to Taser models of ECWs, like those used by PPB. Use of the wire probes creates a circuit intended to

cause neuromuscular incapacitation. While a subject is incapacitated, an officer can handcuff the subject. In

contrast, drive stun when not used with probes spread across the subject’s body, is not intended to cause

incapacitation. It only causes pain to compel compliance. Drive stun, therefore, is a pain compliance method

without the benefit of intended incapacitation.

13

PPB’s current policies do not require officers to take into account the effect that a person’s mental illness may have on their ability to understand commands or the consequences of their actions. PPB policies also fall short in specifying how to de-escalate situations involving people in mental health crisis. For example, PPB policy 870.20 currently requires all individuals to be handcuffed prior to entering a custodial, detoxification, or hospital facility. PPB policy provides officers leeway to use alternative means of securing an individual if the individual has “an injury or other condition that would be further exacerbated by handcuffing.” PPB Policy 870.20. In practice, though, PPB does not treat mental illness as a condition that would further exacerbate the individual’s condition. The PPB officers we interviewed provided a uniform consensus that it is standard PPB policy to handcuff a suicidal individual for transport to the crisis center. As discussed with mental health professionals, this practice may indeed escalate a suicidal individual’s mental state, causing a physical and emotional reaction from the individual. See Deorle, 272 F.3d at 1282 (finding that when dealing with a disturbed individual escalating force may “exacerbate the situation.”). When officer safety is not implicated, officers should have the discretion to consider mental health as a condition permitting alternative means of securing the individual.

B. Excessive Use of ECWs Against Persons in, or Perceived to Be in a Mental Health Crisis15

Through our review of use of force reports and interviews with the public, we encountered numerous incidents where PPB officers deployed ECWs in a manner that was contrary to PPB policy and generally acceptable ECW practices. For instance, PPB officers are engaged in a pattern of using ECWs without warning, using multiple ECW discharges on a single subject (sometimes by multiple officers), and failing to reevaluate the appropriateness of the ECW between cycles. These practices engender fear and distrust in the Portland community, which ultimately impacts PPB’s ability to police effectively.

Courts recognize that use of an ECW constitutes an “intermediate or medium, though not insignificant, quantum of force,” as the pain is intense, is felt throughout the body, and is administered by effectively commandeering the victim’s muscles and nerves. Bryan, 630 F.3d at 824-25. Beyond the experience of pain, ECWs can result in “immobilization, disorientation, loss of balance, and weakness,” even after the electrical current has ended. Matta–Ballesteros v. Henman, 896 F.2d 255, 256 n.2 (7th Cir.1990); see also Beaver v. City of Federal Way, 507 F.Supp.2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being tased, a suspect may be dazed, disoriented, and experience vertigo”). The use of an ECW on a person could result in serious injuries when intense pain and loss of muscle control cause a sudden and uncontrolled fall. Bryan, 630 F.3d at 824-25. And, ECW use can result in death.16

15

While we make a finding that the inappropriate use of ECWs is part of a pattern or practice of excessive

force against persons with mental illness, we do have concerns about ECW use generally and identified incidents

when they were used inappropriately against persons who were not in apparent crisis.

16

NATIONAL INSTITUTE OF JUSTICE UNITED STATES, NIJ SPECIAL REPORT: STUDY OF DEATHS FOLLOWING

ELECTRO MUSCULAR DISRUPTION (2011), available at https://www.ncjrs.gov/pdffiles1/nij/233432.pdf.

14

Pursuant to the PPB Manual, an officer is authorized to use an ECW when “a person engages in or displays the intent to engage in” physical or aggressive physical resistance to a lawful police action or suicidal behavior. PPB Manual § 1051.00. PPB officers are required to provide a warning to the subject, if feasible, before using the ECW. Id. By policy, PPB officers are also prohibited from using ECWs on people who are engaged in passive resistance, rather than active resistance, and on people who are in handcuffs, except for in limited circumstances, and only after seeking supervisory approval.17 Id. The following example, in addition to those above, is illustrative of PPB’s inappropriate ECW usage, all of which were approved by the chain of command, despite describing ECW usage that is against policy.
• In August 2010, three officers responded to a complaint about a person screaming inside their apartment. The officers obtained a key from the front desk and entered the apartment after announcing their entry. They encountered an unarmed, naked man laying on the floor of his apartment screaming for help. The person leapt up when he saw the officers and ran towards them. The officer immediately, without warning, deployed his ECW at the subject’s chest. The subject fell to the ground, but when he attempted to get back up, the officer deployed his ECW for three additional five-second cycles. It turned out the suspect was diabetic and experiencing a medical emergency.
The intrusion on the individual’s Fourth Amendment rights, being shocked with an ECW four times without warning while experiencing a medical crisis, is substantial. The government interest in using force to execute this arrest is slight: (1) though the officers may have felt threatened when the individual ran towards them, this threat is mitigated, at least in part, by the presence of three PPB officers facing a naked, unarmed individual; (2) the officers were present to conduct a check on the man’s well-being; there was no suspicion of criminality; and (3) the subject was not under arrest and neither evaded nor resisted arrest. On balance, the intrusion into the individual’s Fourth Amendment rights outweighs the legitimate government interest. If any ECW usage was necessary, the officers should have approached the subject and attempted to effectuate the arrest using their hands during the first ECW cycle.

Ambiguities within PPB’s ECW policy contribute to an excessive use of force with ECWs. For instance, the directive that officers may use an ECW when a subject “displays the intent to engage in” aggressive or physical resistance, places the officer in the difficult position

17

Similarly, the joint Police Executive Research Forum’s (“PERF”) and Community Oriented Policing

Services (“COPS”) 2011 Electronic Control Weapon Guidelines, states that: “ECWs should be used only against

subjects who are exhibiting active aggression or who are actively resisting in a manner that, in the officer’s

judgment, is likely to result in injuries to themselves or others. ECWs should not be used against a passive subject.”

2011 ELECTRONIC CONTROL WEAPON GUIDELINES, available at www.policeforum.org/library/use-of-

force/ECWguidelines2011.pdf.

15

of determining when such an intent is manifested. Also, PPB defines “physical resistance” as “actions that prevent or attempt to prevent an officer’s attempt to control a subject, but do not involve attempts to harm the officer.” PPB Manual § 635.10. This definition could easily include incidents where the subject is passively resisting arrest and poses no harm to the officer. Further, PPB’s policy does not provide any guidance regarding the maximum number of ECW cycles an officer may deploy or limit how many officers can deploy their ECW at a single subject, absent exigent circumstances.
The lack of clarity with respect to PPB’s ECW policy was apparent at a January 2012 Use of Force Peer Review meeting, where we observed general confusion amongst the officers in attendance regarding the appropriateness of ECW usage in several of the cases up for discussion. For instance, officers questioned whether PPB’s ECW policy permitted the deployment of an ECW against an individual who failed to comply with an officer’s relatively simple command, i.e., to stop walking away from the scene of a traffic stop or open a car door, but otherwise did not act in a threatening manner. Further, the group struggled to reconcile PPB’s ECW policy, which allows ECW usage even when the subject is not engaging in threatening conduct, with recent Ninth Circuit case law. In several instances, the officers noted that the officer in question resorted to the use of an ECW, which is known to “escalate” situations, before attempting any “desescalation techniques.” It is not surprising to us, then, that officers are using ECWs excessively and inappropriately, given the state of confusion amongst those responsible for reviewing uses of force.
C. Unnecessary Escalation of Force Against Persons in Actual or Perceived Mental Health Crisis
Our review of PPB’s use of force reports reveals circumstances in which officers use unnecessary or unreasonable amounts force against persons who are or appear to be in mental health crisis when encounters escalate as a result of behavior that are the product of mental illness. These encounters are often unrelated to a criminal violation or are for low level violations. Sometimes these encounters begin as “mere conversations,”18 but escalate to unnecessary power struggles between the subject and the police officer. The pattern we observed sometimes includes the unnecessary use of ECWs and beanbag guns, as well as instances where an officer hit a subject with multiple fist strikes to the head, after any threat had abated. In each case, it appears that a lesser use of force was appropriate, or force could have been avoided altogether, had de-escalation techniques been employed at an earlier stage. Deescalation techniques are an important tool for officers to employ in order to avoid unnecessary and potentially excessive uses of force.

18

Oregon courts define “mere conversation” as “noncoercive encounters that are not ‘seizures,’” recognizing

that the primary distinction between the two is that the latter involves “the imposition, either by physical force or

through some ‘show of authority,’ of some restraint on the individual's liberty.”' State v. Ashbaugh, 244 P.3d 360,

366 (Or. 2010).

16

The Ninth Circuit identifies uses of force as excessive when the underlying offense is low level and/or the subject posed little threat of harm. See, e.g., Davis, 478 F.3d at 1055 (holding that repeatedly throwing a handcuffed plaintiff up against a wall and on the ground, ultimately breaking his neck, was unreasonable when the plaintiff was detained for loitering in a nonpublic area of a casino and posed no threat to officers); Winterrowd v. Nelson, 480 F.3d 1181, 1186 (9th Cir. 2007) (holding that officer’s manual manipulation of plaintiff’s injured shoulder during pat down was objectively unreasonable for non-threatening suspect detained during ordinary traffic stop); Blankenhorn, 485 F.3d at 478 (misdemeanor trespass not sufficiently severe to warrant gang tackling plaintiff); Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003) (recognizing that force was excessive, particularly considering that police were there to perform a public safety check and medical transport; noting there was no underlying crime at issue); Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (use of force was excessive where evidence of an underlying crime was “minimal and purely speculative” and plaintiff posed no threat).

Both ECWs and beanbag guns are less-lethal weapons that officers are permitted to use only when there is a strong government interest at stake. Glenn, 673 F.3d at 871-72. Similarly, fist strikes to the face are considered to be a severe degree of force that also require a strong government interest to justify use. Benas v. Baca, 2005 WL 3397401, at *1 (9th Cir. Dec. 12, 2005) (holding that officer’s “use of force in the form of a closed-fist punch to [subject’s] face was so severe that it precludes summary judgment” on citizen’s 42 U.S.C. § 1983 claim). Our review of FDCRs revealed numerous examples in which officers used ECWs, beanbag guns, and multiple fists strikes beyond what was necessary to effectuate the arrest and a failure to consider less intrusive alternatives.19 The following examples are illustrative of the pattern:

• In May 2011, an officer was called to check on an unarmed man who had been standing in the rain for over an hour. The officer was unable to speak to the subject because of a language barrier and returned to his car to call for assistance from a Spanish speaking officer. When the officer stepped out of his car, the subject approached the officer and kicked at the officer, but did not make contact. The officer caught the subject by the leg and threw the subject to the ground. The subject rolled onto his back and the officer proceeded to punch him 7-10 times in the face, while the subject grabbed at the officer’s hands to try and stop the blows.

The intrusion on the individual’s Fourth Amendment rights is substantial, i.e., being punched 7-10 times in face. The government interest in using this level of force to

19

While attending a training session on less-lethal weapons, the Department observed the Training

Department showcase as exemplary an FDCR that resulted from the controversial use of a beanbag gun on an

unarmed, 12-year-old girl based on the charge of trespassing and resisting arrest. Whether or not the officers’

conduct in that situation was ultimately deemed appropriate, few would argue that that the use of a beanbag gun in

that circumstance was ideal and worthy of emulation. We informed PPB of our observations at the training and our

belief that the Training Department was conveying a callous attitude toward officer violence in using that incident as

a positive example. Thereafter, Chief Reese forbade training officers from using that incident as a model of the

appropriate use of a less-lethal weapon. We applaud this corrective action.

17

execute this arrest is moderate: (1) the subject did not display a weapon, but he did unsuccessfully attempt to kick at the officer before being taken to the ground. Whatever threat the officer perceived was largely mitigated once he forced the subject to the ground, before he repeatedly punched the subject in the face. (2) While there was no initial offense – standing in the rain is not a crime – assaulting an officer is a serious offense. (3) The subject did not evade or resist arrest, but attempted to grab the officer’s hands in self-defense, while being punched in the face. Other relevant factors include whether the officer considered if the subject had an emotional or mental illness, given that he had been standing in the rain for over an hour and behaved erratically. Also, there were less intrusive alternatives available than punching the subject in the face 7-10 times. The officer made no attempt to explain in his FDCR why so many punches to the head were necessary to control the subject. On balance, considering the totality of the circumstances, the intrusion into the subject’s Fourth Amendment rights outweighed the legitimate government interest.
• In May 2010, officers were called to investigate a complaint that someone was spitting on cars. Noting that the subject appeared to be suffering from a mental breakdown, the officer reported that the subject raised his fists to the officer’s face in an effort to show the officer his hospital identification bracelet. That officer ordered the subject to back up, but he did not and instead took what the officer described as a “fighting stance.” The officer pepper sprayed the subject, who then reacted by walking backwards towards the street. The officer warned the subject that if he did not sit down, the officer would deploy his ECW on him. The subject did not sit down, and the officer deployed his ECW four times in succession before placing the subject in handcuffs. The officer claimed that he deployed his ECW multiple times because the subject had curled into a “turtle position” and would not extend his arms, as ordered, to be handcuffed. Two other officers were on the scene during this incident.
The intrusion on the individual’s Fourth Amendment rights, which includes being pepper spayed in the face and then shocked with an ECW four times, is substantial. The government interest in using force to execute this arrest is slight: (1) the subject neither displayed a weapon nor made any aggressive movements towards the officer, and thus it is unlikely a reasonable officer would believe that the subject posed an immediate threat to the safety of the officers or others. The only threatening conduct the officer identified was that the subject raised his fist to the officer’s face and took a “fighting stance,” but the officer had previously attributed the raising of the fist as the subject’s attempt to show the officer his hospital bracelet. (2) Spitting on passing cars is a low-level offense, if an offense at all and does not warrant this degree of force. (3) The suspect made no attempt to evade arrest by flight nor did he actively resist arrest. Also relevant is the officer’s initial observation that the person appeared to be experiencing a mental breakdown, but no efforts were made to account for this. On balance, we find that the intrusion on the individual’s Fourth Amendment rights outweighs the legitimate governmental interests at stake. Nonetheless, the supervisor who completed the AAR on this incident found the
18

use of force to be within policy and no attempt to even counsel the officer on better tactics was even offered.

This pattern or practice of excessive force is the result of deficient policy and training, as well as inadequate supervision. Officers are required to consider the severity of the crime, the threat posed, whether there are less intrusive alternatives available, as well as a subject’s mental state, before using force, but these examples reflect a failure to properly take these factors into account. Glenn, 2011 WL 6760348, at *6. Further, PPB’s failure to identify these excessive uses of force as being out of policy, results in a missed opportunity to take corrective action. These incidents, among others we reviewed, raise concerns about PPB’s ability to manage uses of force to ensure they are proportionate to the threat posed and the severity of the crime at issue.

VI. SYSTEMIC CONTRIBUTING DEFICIENCIES

Systemic deficiencies contribute to PPB’s pattern or practice of excessive force, including: (1) deficiencies in responding to persons with mental illness or in mental health crisis; (2) inadequate reviews of officers’ use of force; and (3) inadequate investigations of officer misconduct.

1. Deficiencies in Responding to Persons with Mental Illness or in Mental Health Crisis

Our investigation revealed two systemic deficiencies contributing to unconstitutional uses of force against people in mental health crisis: (1) the absence of officers specially trained in and proficient at responding to mental health crisis; and (2) the lack of strategic disengagement protocols involving mental health providers. 20 As Chief Reese has expressed, police officers are often the first responders to an incident involving a person in mental health crisis. There is no doubt that the City suffers from the significant gaps in the statewide mental health system. While DOJ is working with the State in a related statewide investigation to address the gaps in the system for persons in mental health crisis, police involvement will continue to be tethered to the State’s mental health service delivery system. PPB therefore needs tools to handle these incidents in a constitutional and safe manner, though we appreciate that no process is an absolute guarantee against all poor outcomes.

a.

Lack of Officers Specially Trained in and Proficient at Responding to

Mental Health Crisis

PPB provides all of its officers with an initial 40 hours of crisis intervention training and dedicates a portion of its annual in-service training to this topic. PPB does not, however, have a specialized CIT team that consists of officers who have expressed a desire to specialize in crisis

20

Two other recommendations address agencies outside the scope of our investigation: (1) assist the BOEC

to allow referrals of Mental Health Crisis calls within Project Respond’s limited infrastructure; and (2) coordinate

with State and County on Revision of the Civil Commitment Process.

19

intervention and have demonstrated a proficiency at responding to individuals in mental health crisis.21 While we commend PPB for training all officers on crisis matters, this approach assumes incorrectly that all PPB officers are equally capable of safely handling crisis situations and fails to build greater capacity among qualified officers. Certainly circumstances will arise when a specialized crisis intervention officer is not immediately available, or when despite the training and experience, a specialized crisis intervention officer is unable to de-escalate a situation sufficiently to prevent the need of a significant use of force. However, there is growing evidence that a crisis team response is likely to result in a better outcome and reinforce public confidence in policing.

First, not every officer is well suited to effectively deal with people with mental illness. For example, during our investigation a patrol officer stated that his job was “to put people in jail, not to provide social services.” This officer would not be the appropriate officer to conduct a welfare check on person with mental illness. A team of crisis intervention officers reduces the likelihood of encounters of such officers with people in mental illness crisis. Crisis intervention training done with experienced patrol officers and the leadership of a dedicated police-based crisis intervention coordinator also creates a culture change among officers, which often then permeates an agency.

Second, departments cannot rely on academy crisis intervention training to develop officer expertise in working with individuals with mental illness. New recruits in a basic police academy are not generally ready to receive, absorb and implement critical information about how mental illness calls need a different response than the more common police calls. Trainees at that level are overwhelmed with information and generally lack the maturity that experience brings them on the street. Although basic mental health training should be provided to all officers as part of the academy, it is not the optimal time to provide extensive crisis intervention training.

In addition, the 40-hour crisis intervention training curriculum is not what makes a specialized crisis intervention officer an expert in handling mental illness calls. Expertise requires vast field experience developed by CIT officers as they are dispatched to mental illness crisis calls. If 25% of patrol officers are ultimately trained as CIT officers and those officers are dispatched to as many of the mental illness calls as possible, that translates to those officers handling four times as many calls as would be the case if the calls were evenly distributed across the patrol force.

Although PPB previously had a specialized crisis intervention unit, it was not successful because PPB personnel generally perceived it as low in professional status. It was staffed only by volunteers; many officers in the weeklong training course did not view the curriculum as relevant; and the officers generally viewed membership negatively. Crisis intervention officers

21

PPB does have a dedicated “Crisis Response Unit,” which PPB call their “Mobile Crisis Unit,” but it

consists of only a single Central Precinct patrol car in which one PPB officer is paired with a Cascadia mental health

worker four days a week between the hours of noon and 10 PM.

20

did not receive a special status like PPB’s SERT trained officers. Instead, PPB officers viewed the original crisis intervention officers as just providing transport to people in crisis without extra pay or prestige. PPB has many officers and leaders who are committed to providing care to people with mental illness and will assure good outcomes in their encounters with people with mental illness. Just like an officer trained to negotiate a hostage situation or a SERT officer specially trained for tactical situation, officers with skills to negotiate with a person in a mental health crisis are essential for PPB’s success in protecting the public.
Crisis intervention training as currently delivered by PPB is a police based training lacking important community collaboration. It appears that the curriculum is developed by PPB and that the training is opaque to the community at large.22 This is problematic for PPB’s ability to understand the community it must serve and protect. There does not appear to be good reason to deny reasonable access to a crisis intervention course to consumers, family members, advocates, or mental health workers. Also absent from the current PPB crisis intervention training is live exposure to consumers and family members. One of the most effective ways to address the stigma of mental illness is to increase direct exposure to people with mental illness. The opportunity for officers to now see people, who may have been violent offenders when ill, as stable contributors in a crisis intervention class is a powerful game changer in crisis intervention training programs. Indeed, our investigation revealed that officers harbor fear around the dangerousness of persons experiencing mental health crisis, or those with mental illness. While DOJ does not minimize the potential danger involved, the level of concern generally within PPB is higher than our expert has seen within other agencies. By including persons in recovery in a crisis intervention class, PPB will not only involve the community, but it may also lower the level of fear, and lead to less fear-based unintended consequences.
Furthermore, the current training in the basic and advanced academies involves training modules scattered over multiple days. The impact of a weeklong crisis intervention training experience is lost. Our investigation also found that PPB abandoned live role playing, replacing role plays with discussions of scenarios. Discussions of given scenarios cannot replace roleplaying realistic scenarios in front of peers. Role-playing is generally viewed as a key element to a successful police training in general and a crisis intervention program in particular.
In the training PPB currently provides its officers, there is a clear acceptance of the “crisis cycle,” the need to identify people in crisis, and application of the skills, including interpersonal communication skills, to help people through a crisis. However, many PPB officers fail to recognize that persons with mental illness need to be dealt with differently, and may react very differently to police assistance, than an average citizen. Officers must have the tools to identify when a person in crisis has a mental illness in order to appropriately adjust their approach and response. The usual command and control approach does not work effectively with people in a mental illness crisis. For example, a paranoid person may act in a threatening

22

During our investigation, we spoke with advocates who desired greater inclusion, but were refused access

to the curriculum and were not allowed to attend training sessions.

21

manner because he/she is frightened. If the response is to reassure the individual of safety, there may be a de-escalation. But, if the response is “command and control,” it may increase the level of fear and result in an escalation. Additionally, not all police contacts with people with mental illness are with people in “crisis.” Often times, individuals with mental illness may not be in a crisis, but instead will demonstrate signs and symptoms of their illness, which can be perceived as criminal behavior. Accordingly, training must include police interactions with people who are symptomatic, but not in crisis, to avoid criminalizing mental illness.

b. Lack of Strategic Disengagement Protocols Involving Mental Health
Providers
PPB informed us that they have begun employing strategic disengagement – a practice of withdrawing from a situation to avoid use of force when a subject does not appear in imminent danger of harm to self or others and has not committed an arrestable offense. We also observed strategic disengagement in practice while on-site. However, for individuals who are perceived as not being dangerous to others, but are at risk of harm to self, officers should only practice strategic disengagement in consultation with a mental health professional and should attempt to develop a plan for when and how to hand off responsibility. Due to the existence of Project Respond, Portland, unlike many communities, can make informed decisions based on collaboration between law enforcement and mental health experts in these very challenging and potentially dangerous situations. Unfortunately, Project Respond’s limited availability reduces the opportunity for this type of collaboration to happen consistently and successfully.

Furthermore, PPB and the City should give careful consideration to Project Respond’s capacity to handle non-law-enforcement emergency calls diverted from BOEC. We received comments from the advocacy community for people with mental illness that people with mental illness or in mental health crisis may fear interactions with PPB.23 Advocates informed us that people with mental illness and their families would often prefer interactions with mental health professionals, rather than law enforcement, for welfare checks. Likewise, PPB officers informed us that they spend an inordinate amount of their law enforcement time on calls that are principally related to mental health needs. The City should consider where resources are best dedicated to address the need for welfare checks. Although services are limited, the City could better inform mental health care consumers and their families about available resources, including the crisis hotline and Project Respond. While Project Respond is not currently staffed to handle the large number of calls received by PPB regarding persons with mental health issues, Project Respond could be utilized to address mental health crisis calls that do not involve a risk to community safety.

The City should consider encouraging direct calls to Project Respond and permitting Project Respond to decide which calls to take and which to refer to the police. Currently, the

23

We also received comment from the advocacy community that they were offended by PPB’s pejorative

reference to people with mental illness as “mentals.” In fact, we observed the term “mentals” used as a descriptor

during a roll call presentation. We recommend that PPB immediately stop using this term.

22

community does not appear to have broad awareness of the use of Project Respond as a resource. Most calls for service appear to originate through BOEC or the crisis line. At this point, BOEC is not equipped in time or expertise to triage mental healthcare calls to make a determination about public safety and which calls should go to Project Respond. While the public should not hesitate to call 911 – i.e., BOEC – in emergent situations, Project Respond may be better equipped to triage mental healthcare calls that go directly to it in non-emergent situations.
Before implementing direct calls to Project Respond and an increased role for Project Respond in welfare checks, the City should carefully consider appropriate protocol and staffing. The City should also have an evaluation plan to test the efficacy of Project Respond’s responses to service calls. Lastly, the City should have a backup plan should calls come in that Project Respond does not have the capacity to address.
PPB officers also frequently commented on the lack of a 24/7 drop-off facility for persons in mental health crisis, in lieu of taking the individual to jail or the emergency room. The City previously operated a facility at which PPB officers could drop off individuals placed on temporary mental health holds for assessment and temporary treatment. During the investigation, officers and mental health providers explained that the Crisis Assessment and Treatment Center (“CATC”), a 15-bed, sub-acute, secure facility, does not fill the void of a temporary, accessible acute care facility. At CATC, a nurse practitioner or doctor is only available from 12 PM to 5 PM. Also, CATC does not permit PPB to drop off people unless authorized by Multnomah County. Significantly, while Multnomah County reported that it established a separate phone line for PPB to seek authorized use of CATC, PPB officers reported that they cannot get authorization from Multnomah to use CATC. Accordingly, officers reported that in most instances they do not try to get authorization. Ironically – and tragically – a number of officers told us that they were not even aware of the separate telephone line for CATC authorization.
Additionally, the Cascadia Urgent Walk-in clinic does not fill the gap for a crisis triage center because individuals who are not enrolled in the State’s Medicaid plan are not eligible for service unless they have a life threatening condition. Cascadia and others reported to us that the lack of enrollment or eligibility to enroll is a frequent barrier to the provision of mental health services to these individuals. The absence of an accessible crisis triage center make PPBs need for specialized crisis intervention officers more acute. A secure 24/7 crisis triage center within the City would allow officers the ability to hand over an individual in crisis to a mental health professional quickly and without authorization from the county or otherwise.
2. Inadequate Supervisory Review of Officers’ Use of Force
PPB’s current practice concerning supervisory review of incidents in which officers used force is insufficient to identify and correct patterns of excessive force in a timely fashion. We recognize that Portland has a unique Commission-based governing style, which removes certain elements of the police accountability apparatus from PPB’s direct control. While acknowledging deficiencies in the existing system of officer accountability, PPB needs to do more to effectively
23

supervise officers and reduce instances of officer misconduct.

Following a use of force, supervisors should be on the scene to ensure that a full inquiry of the circumstances of the force used by officers is conducted, including:

•

Ensuring medical attention is provided;

•

Identifying, separating, and interviewing all involved and witness officers;

•

Interviewing those subjected to force;

•

Canvassing for witnesses and taking statements from all witnesses;

•

Collecting evidence (e.g., hospital reports, photos of all injuries to all involved

persons, physical evidence, Taser downloads consistent with the incident,

diagrams);

•

Conducting a documented review of officers’ reports of the incident for

completeness, accuracy, and quality; and

• Assessing whether further investigation is needed to determine the

appropriateness of the use of force and whether the incident creates a need for

retraining.

This was not occurring at PPB until recently, when Chief Reese changed the policy.24 Supervisors are now required to go to the scene of use of force incidents and conduct an investigation. It is essential that supervisors be required to gather evidence necessary to resolve material discrepancies and consider whether the description of the force used is consistent with the sustained injuries or hospital reports. PPB should further revise its policy to require the AAR process to include collecting forensic evidence, taking photographs, or audio and electronic reception of evidence. PPB should also consider whether its current AAR policy, which suggests that a short one or two paragraph narrative is sufficient to describe the significant facts of the event, should be revised to require supervisors to provide more details.

PPB should revise its AAR policy to include a strong and effective monitoring system to ensure AARs are being timely completed and contain sufficient data for supervisors to adequately analyze uses of force. This analysis should include:

•

Was the original stop, detention or subsequent arrest lawful?

•

Was the type and amount of force used objectively reasonable and proportional to

the resistance encountered?

•

Was the type and amount of force related to a legitimate law enforcement

objective the officer or the department was trying to achieve?

•

Were efforts made to deescalate the situation without using force?

•

Was the force reasonably decreased as resistance subsided?

•

Was the force used consistent with generally accepted police tactics?

24

Executive Order RE: DIR 940.00 After Action Reports and Operation Orders, available at

www.portlandonline.com/police/index.cfm?a=380055&c=29867.

24

•

Was the force used consistent with PPB training programs?

Even if the current AAR policy were sufficient, PPB’s practice regarding AARs is not. Many of the cases that we reviewed where officers engaged in a substantial amount of force did not have a corresponding AAR. For the cases that did have AARs, these reports did not contain sufficient investigative findings to constitute an adequate review. PPB supervisors nonetheless sign off on FDCRs without ensuring that thorough AARs are completed according to policy. By tolerating supervisors’ failures to investigate and complete uses of force investigation and reviews, PPB misses a crucial opportunity to correct officer behavior. Instead, PPB sends the message that there is little institutional oversight or concern about officers’ use of force.

Our analysis and review of hundreds of police reports revealed that rarely was the use of force found to be out of policy, even when the force used was clearly excessive. When PPB officers cause physical injury or take someone to the ground using force, they are required to fill out a FDCR, which includes a description of the totality of the circumstances that existed, including the subject’s behavior and a justification for why the force used. PPB Manual § 1010.20. Supervisors are required to fill out an AAR, which includes a narrative that describes the police action and an assessment of its effectiveness through critique and evaluation using required criteria, when officers use certain types of force. PPB Manual § 940.00. In addition to force reports, uses of deadly force require direct on-scene investigation, PPB Manual § 1010.10, and a subsequent review by a Force Review Board, PPB Manual § 335.00.

Throughout our investigation, numerous cases that we reviewed lacked even the fundamental elements to collect even basic acceptable force investigative data to allow management to adequately critique force incidents. Some examples of persistent deficiencies in the reports include:

•

Use of pattern or conclusive language, such as stating that the subject was

“combative,” “confrontational,” “struggling,” “got off the floor aggressively;”

•

No statements taken from on-scene independent witnesses;

•

Not all officers on scene who used force wrote reports;

•

No statement taken from the person against whom force was used;

•

A subordinate officer investigates the force used by a supervisor;

•

A supervising officer approves his own use of force;

•

A sergeant orders force to be used and neither writes a force report of his actions

nor an AAR;

•

No pictures of injuries taken;

•

Force report written weeks after the incident;

•

Discrepancies between involved officers’ statements and reports not addressed or

resolved; and

•

No analysis for whether there was reasonable suspicion or probable cause for

original stop and detention.

Force investigations and reviews are designed to audit and ensure that those practices are

25

being followed. Further, they should instill public confidence and faith in those sworn to protect the law and also serve to protect the officers and their agency from frivolous complaints. Supervisors’ failure to intercede and actively manage incidents results in a weak and ineffective force management system. PPB’s current policy does not require supervisors to investigate all uses of force on scene. In practice, supervisors’ review of FDCRs has failed to identify uses of force as excessive, as we describe in the examples above. Further, PPB has not ensured that supervisors always complete AARs when required. Nor have supervisors rejected the AARs we reviewed that failed to provide sufficient detail to enable supervisors to adequately assess uses of force. These policy deficiencies and practice failures have a profound impact on PPB and community they serve. Significantly, these gaps present lost opportunities to ensure accountability and rectify behavior, thereby failing to prevent further unconstitutional uses of force.
PPB also has failed to timely identify use of force trends. Prior to this investigation, PPB reviewed officers’ overall use-of-force trends on six-month intervals during Force Review Board meetings consisting of supervisors at each precinct reviewing force events. Six months is far too long for PPB to wait before becoming aware of systemic problems related to officers’ use of force. Based on our technical assistance, PPB recently created a new “use of force auditor” position. This person will be responsible for evaluating FDCRs and other documents on a regular basis to identify trends. Critical to the use of force auditor’s effectiveness will be PPB’s ability to develop a responsive training regime that is targeted to address systemic patterns of undesirable conduct. If this auditor is the day-to-day monitor of individual officers’ use-of-force trends, PPB can reduce unacceptably long delays in identifying use of force trends.
3. Failure to Implement Timely Corrective Action following Investigations of Officer Misconduct
PPB, along with the City, should streamline its investigation and adjudication of complaints of officer misconduct to give greater effect to and faith in the process. Currently, PPB has a number of fragmented processes for review of uses of force, none of which result in timely individual or systemic corrective action.
An open, fair, and impartial process of receiving and investigating citizen complaints serves several important purposes. An appropriate citizen complaint procedure ensures officer accountability and supervision, deters misconduct, and helps maintain good community relations by increasing public confidence in and respect for PPB. Improving the current procedure for handling citizen complaints at PPB would maximize these goals.
PPB and Portland have admirably sought to include civilian and public participation in the complaint intake and review process. PPB apparently has implemented this participatory process to encourage public faith in PPB’s complaint investigation and disciplinary systems. The participatory systems are the outgrowth of responses to high profile incidents and frequent revisions to PPB’s accountability systems. The apparent goal of transparent and “fair” systems has added layers of review, appeal, and re-reviews. However, the established systems have
26

become so complex and so time consuming that the objectives – officer accountability and public confidence – have been lost. The efficacy of the system is undercut by the unreasonable delay in reaching an outcome from a complaint. Additionally, the layers of review have provided escape valves inappropriately eviscerating full administrative investigation and corrective action for some complaints.
a. Self Defeating Accountability System We met with many citizens who were concerned about their ability to effectively raise concerns regarding PPB officers’ uses of force. As with other cities, there is a close association between the administrative complaint review processes and the force review processes in PPB. PPB’s force review process, however, is so complex that the progress of any given complaint through the stages of review is both difficult to follow and needlessly lengthy. Like the complaint process, as described below, the force review interactions with the complaint system are so byzantine as to undercut the efficacy of the system. In this case, PPB’s own force review chart speaks volumes about this problem. See Figure 1, PPB’s force review flow chart.
Figure 1. PPB’s force review flow chart 27

b. Complaint Intake
Complaints originate either internally within PPB or from the community. PPB does not receive the initial community complaints. Rather, complainants submit their complaints to an entity within the City’s government. Portland separately elects a City Auditor. Within the City Auditor’s Office, is the Office of the Independent Police Review (“IPR”), which receives citizen complaints. IPR performs an initial investigation of the complaints.25 IPR then determines which complaints merit a full Internal Affairs (“I.A.”) investigation. IPR may decline to have a complaint fully investigated for multiple reasons, including a determination that: “it is more likely than not that no misconduct occurred and additional investigation would not reach a different conclusion.” See IPR Annual Report 2010, May 11, 2012. This is a qualitative determination often based on incomplete information. All allegations which, if true, would amount to a violation of policy should be investigated. However, the IPR is asked to opine of the merit of complaint before a full investigation yields determination on the credibility of the complaint. Accordingly, by design, the intake process becomes a qualitative analysis without the benefit of the information necessary to make a valid determination about which complaints deserve a full IA investigation.
IPR’s intake process permits the diversion of complaints of officer misconduct without the benefit of full investigation. IPR declined 66% of the complaints it received in 2010. Id. IPR may refer some of these declined complaints to the subject officer’s chain of command for informal resolution -- avoiding a full IA investigation -- if IPR determines that the complaint does not merit a full IA investigation. IPR refers to IA only those complaints that survive IPR’s vetting process.
Currently, IPR has a backlog of complaints awaiting an initial investigation. We recommend that PPB, the City Attorney, and IPR work collaboratively to expedite the handling of this backlog. We also recommend clearer criteria for IPR declination that does not permit judgments based on incomplete information, particularly when IPR does not refer the complaint to any other entity for investigation.
c. IA Investigations
After IA receives complaints of officer misconduct, either internally from within PPB or through IPR, IA codes those complaints and makes determinations of whether they believe the complaint merits a full investigation. PPB policy permits IA to decline to investigate complaints where the complaint alleges no misconduct; the complaint involves a minor or de minimis allegations in IA’s determination; IA determines it has no jurisdiction; the complaint involves a claim currently under judicial review; IA is unable to identify the subject employee; the complaint previously has been adjudicated; IA determines the complaint lacks merit; or IA’s commander determines IA does not have sufficient resources. IA’s ability to decline complaints for this broad swath of reasons presents another potential escape valve for meritorious

25

IPR is comprised of a handful of civilian employees, some of whom are attorneys.

28

complaints. In the past five years, IA has declined between 15% and 26% of the complaints IPR has referred to it, i.e., complaints from civilians. See IPR Annual Report 2011, at p. 8, June 27, 2012. By contrast, IPR reports that with “few exceptions” PPB has completed full administrative investigations of all complaints initiated internally by PPB. Ibid. at p. 10.
If IA does not decline the complaint, a full investigation does not necessarily follow. IA determines some complaints are minor complaints of poor service. PPB refers to these complaints as “service improvement opportunities” or “SIOs.” IA assigns to each subject officer’s chain of command his or her SIOs for resolution. PPB considers SIOs non-disciplinary, and they are not subject to a full investigation. PPB Manual § 330.00. PPB has resolved between 51% and 60% of its IA complaints through SIOs in each of the past five years. See IPR Annual Report 2011, at p. 8, June 27, 2012. The large number of complaints resolved through SIOs diverts meritorious complaints from receiving more extensive review.
Significantly, as each SIO goes out to each chain of command, that SIO stops at the email inbox or hard copy mail box at each level of the chains from top down on the way to the subject officer’s Sergeant. After resolution, the record of the SIO reverses course and stops at each level of the chain of command on the way back up to IA. This is a taxing use of managerial time that PPB could more efficiently use by simultaneous broadcast of the SIOs from IA down the chain of command to the Sergeant, and the Sergeant’s concomitant response directly to IA, with copy to the chain of command.
Also, instead of a full complaint, IA may permit some complaints to be resolved by mediation. PPB policy does not contain objective criteria to determine which complaints are appropriate for mediation. Rather, policy requires only that IA make a subjective determination that mediation would “meet the needs of” PPB and the community. If IA so determines, the subject officer and complainant agree, and the officer’s chain of command does not object, then the complaint can be resolved through mediation. Significantly, mediation does not reach a finding nor can discipline be imposed from mediation. As a general proposition, mediation can be an effective tool for a police department to efficiently resolve minor complaints and engender a sense of participatory justice among aggrieved community members. However, we note two issues with PPB’s current mediation policy and practice.
First, PPB’s mediation policy should contain objective criteria to determine which matters are appropriate for mediation. Complaints of excessive force should always be subject to investigation and a finding. PPB has an interest in making sure its officers comply with use of force policies and training. Permitting mediation in those cases would fail to result in a finding to correct any improper uses of force, if any, and compromise Department-wide statistics regarding uses of excessive force.
29

Second, we note that mediation, as the name suggests, should be used to reach mutual agreement. PPB, IPR, and others report that mediation is not frequently used.26 Not surprisingly, then, we received few accounts concerning mediation in practice. One community member with whom we spoke, however, recollected that officers threatened to charge her with a crime in the course of mediation if she would not agree to their resolution of her complaint. She reported having been arrested and released without charge. The gravamen of her complaint was an allegation of false arrest and forced handcuffing. She reported that, during the course of mediation, the officers involved threatened to re-arrest her for the same charge if she would not drop her complaint. This account, which appeared credible, speaks to the potential abuse of mediation rather than its use as an effective conciliatory tool. PPB should ensure that mediation is only used based on objective criteria and that the parties fully understand how mediation will be conducted and the potential outcomes.
For those complaints that result in full IA investigations, we found the investigations to be thorough. IA investigations, however, currently span an inordinately long period of time, e.g., several months. Both PPB and IPR are often unable ensure that IA investigations are completed within ten weeks, PPB’s goal for a deadline to complete IA investigations.
There is also a conflict in the information Portland provides the public about the possible outcomes of IA complaints. PPB’s IA Policy provides for five possible findings: unproven; unproven with a debriefing – i.e., a critique of the complaint with the subject officer; exonerated; exonerated with a debriefing; and sustained. PPB’s standard operating procedure (“SOP”) contains additional possible findings. The City Auditor’s public website lists only two possible findings: not sustained and sustained. We recommend that PPB and IPR adopt uniform standards on the possible outcomes for IA complaints. We also recommend that PPB add one additional finding: unfounded. Unfounded requires an affirmative proof that the allegation presented is false. This is a significantly different finding than unproven or exonerated. When evidence from investigation of an IA complaint proves that the complainant was untruthful, an unfounded finding completely clears the officer of any alleged violation.
d. Criminal Investigation of PPB Officers
PPB refers allegations of potentially criminal conduct by PPB officers from IA to PPB’s criminal investigations section. See PPB Manual §§ 330.00, 344.00. We have been informed that the Multnomah County District Attorney previously requested that PPB not conduct IA investigations of officer-involved shootings until after the completion of the DA’s investigation and/or criminal prosecution. This request was based, among other things, on the concern that an officer’s compelled statement in an administrative investigation could potentially taint evidence planned to be used in a criminal indictment. See, e.g., Garrity v. New Jersey, 385 U.S. 493 (1967); Kalkines v. United States, 473 F.2d 1391 (1973). The DA has presented certain

26

In the past five years, PPB has resolved 1% to 4% of community complaints through mediation. IPR

Annual Report 2011, at p. 5, June 27, 2012.

30

allegations of officer misconduct in the use of force to grand jury for consideration, but the grand jury has endorsed a charge on only one such occasion.
IA has informed us that they are now conducting concurrent administrative and criminal investigations. We commend this effort. PPB has an interest in preserving administrative accountability and public safety expeditiously through its IA process. This should not be delayed by a parallel, bifurcated criminal investigation. We note that PPB’s policy still permits IA to decline an investigation if the claim is in judicial review, PPB Manual § 330.00, and this policy runs counter to the announced practice of concurrent investigations. PPB should make clear in its policy that administrative and criminal investigation shall run concurrently. PPB should consult with the DA, FBI, and/or United States Attorney’s Office at the outset and throughout this bifurcated process and prior to compelling statements.27 PPB should also clearly set forth in policy that though IA may use criminal investigation material in appropriate circumstances, all administrative interviews compelling statements, if any, of the subject officer and all information flowing from those interviews must be bifurcated from the criminal investigation in order to avoid contamination of the evidentiary record in the criminal case.
PPB informs us that, by contract, officers involved in shootings or in-custody deaths are permitted to wait 48 hours before they are subject to questioning. This delay in questioning the subject officer is a function of PPB’s contract with the officers’ union. Portland’s City Attorney has also informed us that the DA, or his or her designee, is in command of the scene at an officer-involved shooting or in-custody death, pursuant to State law. The DA is a county employee. Provided the DA is not bound by the City’s contract and its 48-hour waiting provision, the DA may consider questioning the officer, subject to his or her ability to exercise rights to counsel and remain silent, as soon as the DA sees fit. This should expedite the accurate resolution of the criminal investigation. If a civilian is involved at the scene of a potential crime, it is difficult to conceive of PPB officers permitting that civilian 48 hours before asking him or her questions about the incident. PPB should not hinder investigation of a potentially criminal action with this officer-specific delay.
Additionally, this 48-hour waiting period has enabled officers to refuse to timely provide complete use of force reports, i.e., FDCRs and public safety statements. In a recent PPB officerinvolved shooting, not only did the shooting officer decline to give a statement at the scene, but so did two other officers who used less lethal force. Also, like the shooting officer, the other officers did not provide a narrative on the incident reporting forms, as required, but instead referred to interviews they would later give to detectives. As this incident demonstrates, PPB’s waiting period for officers’ statements concerning uses of force defeats the purposes of contemporary, accurate data collection through FDCRs. In many jurisdictions, standard use of force reports are not considered Garrity and officers are expected to fill them out immediately after an incident.

27

These policy changes should make clear that only compelled statements made in the face of the reasonable

prospect of criminal prosecution are entitled to Garrity protection.

31

Separately, we also note that PPB does not have an established policy for handing over to criminal defendants potentially exculpatory evidence contained in IA files. See Brady v. Maryland, 373 U.S. 83 (Ct. Cl. 1963). Whether a criminal defendant is an involved officer or a civilian, PPB should have a policy in place to transmit potentially exculpatory material to criminal defendants. We recommend that PPB, the City Attorney and the DA work collaboratively to establish a methodology for the handling of exculpatory material, mindful of the bifurcated administrative and criminal investigations in cases involving officers as defendants. PPB should memorialize in policy or procedures this agreed-upon methodology.

e. The Police Review Board

In addition to the internal affairs complaint investigation process, PPB has developed a Police Review Board (“PRB”). See PORTLAND CITY CODE§ 3.20.140. PRB reviews certain PPB incidents with the stated goal of making recommendations to the Chief regarding findings on those incidents and proposed discipline. Id. It has no ultimate decision making authority.

PRB reviews only certain incidents. Notably, an aggrieved civilian involved in an incident cannot force a PRB review. There are only three routes to a PRB review. (1) PRB presumptively reviews all incidents of a certain severity – i.e., in-custody death, officer involved shootings, and uses of force that result in hospitalization. (2) PRB reviews all incidents that result in recommended discipline of a day or more.28 (3) PRB receives internal referrals from PPB chain of command or the IPR director. PPB calls some of these referrals a “controverted” finding or “controverted” recommended disciplinary action. In other words, if an investigation of an officer’s conduct yields a finding with which the IPR Director or the subject officer’s chain of command disagrees, they have the power to force a PRB review. If an aggrieved civilian disagrees with the investigative finding or recommended discipline – or disagrees with the declination to investigate his or her complaint at all – the civilian cannot compel a PRB review.
PRB is comprised of five members in non-use-of-force incident reviews: a citizen,29 a peer of the subject officer,30 the PPB Assistant Chief over the subject officer, the PPB Captain or Commander over the subject officer, and the IPR Director (or his/her designee). A paid civilian facilitator presides over PRB proceedings. The subject officer and a representative from his or her bargaining unit may attend PPB’s presentation of an incident to PRB. In certain use of force

28

An alternative disciplinary route exists for certain violations of the City’s Human Resources Administrative

Rules regarding complaints of discrimination. For the sake of this letter, however, those are inapposite.

29

There is an additional system established for the appointment of these volunteers. City codes tasks PPB

and IPR with developing criteria for selection of the citizen volunteers. The City Auditor vets the volunteers and

submits their names to City Council for approval or disapproval. City Council appoints the volunteers for three-year

terms. Code limits these volunteers to one full term and one partial term, if they are filling a vacancy. Code also

permits the City Auditor or Chief to recommend that the City Council act to remove of a citizen from the available

pool of volunteers.

30

Here, too, there is an additional system in place for selection of the potential PRB members. Peers are of

the same rank and classification as the subject officer. The Chief must have a pool of pre-approved “peer” officers

at the ready.

32

cases, PRB’s also includes one more citizen volunteer and one more peer. Accordingly, the composition of PRB aims to include evaluators both internal and external to PPB. However, PRB has a host of non-voting advisory members, taken mainly from PPB, that further complicate the composition of PRB. Curiously, a complaining civilian, if one is involved in the incident being reviewed, is not permitted to attend PPB’s presentation.
The PRB process is long. PPB is required to give an involved officer 14 days’ notice prior to the presentation of his or her case at a PRB meeting. PRB meets only twice a month and usually can consider only two cases each meeting. PRB’s civilian facilitator has 14 days after the completion of PRB’s review of a case to produce written proposed findings. At the completion of its process, PRB presents a public proposed finding, but not its record. The subject officer or the aggrieved civilian may appeal PRB’s recommendation to Portland’s Citizen Review Committee (“CRC”), the next step on the long journey to resolve an officeraccountability incident.
Despite the good intentions of using PRB as an accountability tool, the current process is not comprehensive and, when conducted, has significant delays in the ultimate resolution of an officer accountability incident.
f. Citizen Review Committee
CRC is comprised of nine civilian volunteer members.31 See PORTLAND CITY CODE § 3.21.080. CRC has multiple, broadly defined missions that can be distilled to three categories: (1) hearing appeals of officer accountability complaints; (2) community outreach; and (3) recommending policy changes. CRC members with whom we spoke advised us that they spent the majority of their time in community outreach.
CRC meets just once a month, resulting in additional delays. In order for CRC to consider an appeal, the record of appeal must be completed and CRC members must have an opportunity to review the record prior to the appeal. CRC members reported to us that each appeal usually involves two CRC meetings, each a month apart. At the first meeting, CRC conducts a case file review to certify that the matter is ready for appeal. At the second meeting, CRC conducts an open, public appeal hearing. If the record is incomplete, this two-meeting process is further delayed.
At the appeal, CRC considers only the recommended finding on the officer accountability incident. CRC does not consider and does not receive information on the recommended disciplinary action, if any. CRC has limited authority to reach findings. CRC representatives have informed us that they have been counseled that they may only send a complaint back to PPB for further information or to determine whether a prior finding is “irrational.” In fact, the

31

Like PRB, CRC has another layer of involved processes for soliciting volunteers, screening candidates,

nomination by the City Auditor, and appointment by City Council.

33

City Code permits CRC to find that the prior finding is either supported or unsupported by the evidence in the record. Id. This support-or-unsupported standard is a lower threshold than a requirement that CRC affirmatively declare the prior finding “irrational.” To the extent that Portland retains this current system, Portland should ensure that CRC applies only the proper standard for findings.

CRC can accept testimony and written statements, and consider the record. Paradoxically, even though CRC may consider any new evidence that develops in its hearing, it is prohibited from using this new evidence to find that the prior record does not support the finding from below. See PORTLAND CITY CODE § 3.21.160. This policy appears to be an effort to require CRC’s remand of those complaints to IA for further development of the evidentiary record for an incident.32 However, the policy’s direction to CRC asks them to opine on the propriety of a prior finding without consideration of all the evidence before them. This is untenable. Evidence developed by CRC – incuplatory or exculpatory – should be included in the record of the incident, even if remand to IA is then required to fully develop the evidence.

There exists no apparent prohibition on CRC’s consideration of officer accountability incidents involving in-custody deaths or officer-related deaths. CRC members inform us that, as a practical matter, though, parties pursue those matters through formal judicial means rather than appeal to CRC.

If CRC reaches a finding that the record of the officer accountability incident does not support the prior recommended finding, CRC may present that incident to the City Council for appeal. Id. This is yet another step on the long process toward final resolution of an officer accountability incident. At the Council level, too, there may be a hearing with witnesses. The Council, then, will decide the ultimate administrative finding on the complaint. It does not appear that this step has been utilized before.

g. Administrative Determination

After the subject officer or complainant exhausts administrative appeals to CRC, if any, and if CRC does not call upon the City Council to make a final finding, the authority to reach an administrative finding returns to PPB. The Chief makes a finding and recommends discipline. However, the Police Commissioner, i.e., usually the Mayor, has the ultimate authority to make the final determination on serious levels of disciplinary action.

h. Appeal of Discipline

If PPB and the Police Commissioner determine that the subject officer’s actions require disciplinary action, the officer’s collective bargaining agreement then starts the next phase on the

32

We note that IA has not been required to provide information to CRC by further supplementing IA’s

investigation of a complaint. In a recent use-of-force investigation, IA refused CRC’s request that IA interview a

witness to the use of force. Thus, Portland’s methodology of requiring CRC to only rely upon an IA record is

frustrated by PPB’s refusal to fill gaps CRC identifies in that record.

34

long road to the imposition of corrective action. The subject officer may initiate a union grievance. If an officer’s union will not accept a grievance – which reportedly occurred only once – the officer may appeal a disciplinary action to a state labor board. In most cases, the subject officer’s union will grieve the imposition of discipline on his or her behalf. After the subject officer meets certain procedural requirements, a state employee relations board will name potential arbitrators to arbitrate the grievance. Counsel for the City and the subject officer may strike proposed arbitrators from the list leaving a selected arbitrator to hear the arbitration of the aggrieved disciplinary action. As the City Attorney’s Office has characterized this process to us, there are no set rules in arbitration and Portland bears the burden of proof to justify its actions. This cumbersome process – which reportedly cost Portland $500,000.00 for a single recent arbitration – usually results in an arbitration finding 60 to 90 days after the proceeding.
As happened in that recent costly arbitration, the arbitrator may overrule the imposition of discipline. Portland can refuse to implement an arbitrator’s finding if Portland determines the finding is a violation of public policy. This refusal would force the subject officer’s union to file an unfair labor practices complaint. If this is resolved favorably for PPB or the arbitrator has upheld PPB’s action, the imposed discipline stands.
At long last, if a civilian’s initial complaint is meritorious, proven, and survives this grueling process without being overturned, then PPB can impose corrective action. This process is so lengthy and attenuated, however, that the efficacy of corrective action is invariably undermined.
i. Lack of Clarity and Timeliness in PPB’s Early Intervention System
PPB recently brought on line its Early Intervention System (“EIS”). PPB had a paperbased EIS previously. PPB began building the current system in 2004-05. The prototype went on line in July 2011. EIS became fully operational in December 2011. Because PPB’s EIS has only recently become operational, there is little data on which to assess the efficacy of the system.
PPB’s stated goal for its EIS is to keep officers productive by offering officers interventions when PPB identifies behavior, medical issues, or psychological problems that adversely affect PPB’s goals. See PPB Manual § 345.00. An effective EIS is a powerful tool that should enable PPB to identify officers whose at-risk behaviors exceed department guidelines, even if direct supervision of use of force incidents fail or are found to be within policy.
PPB demonstrated its EIS for us and our consultant. The EIS is a database that records various domains of officer behavior, e.g., uses of force, complaints, tort claims, allegations of domestic violence, etc. PPB has established various thresholds at which the EIS will identify an officer. When the EIS identifies an officer, PPB intervenes by referring the triggered information to the subject officer’s chain of command. PPB policy memorializes some EIS triggers. Id. For example, EIS is triggered by any three IA complaints against an officer within
35

six months, or two IA complaints of the same category within six months. Id. Some triggers about which PPB informed us, however, are not contained in the policy. The EIS reportedly currently triggers with an officer who has used force in 20% of his or her arrests in the past six months, or who uses force three times more than the average number of uses of force compared with other officers on the same shift. Since these triggers are not specifically enumerated in the policy, we recommend that PPB memorialize in its policy the Professional Standards Division’s discretion to develop additional EIS triggers. Additionally, while these proportional-use-of-force triggers are helpful, we recommend that PPB add definitive triggers to its EIS for uses of force, e.g., three uses of force in a month. In order to be effective as an early intervention, the EIS needs to be able to identify officers with more sudden changes than a six-month look back would indicate. Accordingly, a sudden uptick in uses of force within a shorter period of time should trigger the EIS.
As reported to us, PPB currently waits for IA to review a complaint against an officer before referring the triggered officer to his chain of command for an EIS intervention. PPB has informed us that this is their practice because they are concerned that the subject officer would argue an issue cannot be handled by IA since it was already addressed through EIS. This defeats the purpose of the EIS. By policy, EIS is non-disciplinary. Accordingly, no officer should reasonably rely on EIS intervention to avoid IA investigation and the imposition of discipline for sustained wrongdoing. If there is any doubt on this point, we recommend that PPB immediately clarify by issuing an informative directive. Given the inordinately long IA process, as described in this letter, waiting for an internal affairs complaint to reach resolution before utilizing an EIS trigger defeats the point of an “early” intervention system.
Currently the EIS tracks individual officers’ data. We recommend that as the system matures, PPB revise it EIS to trigger supervisors whose units collectively use force disproportionately more than other units. These are data present in the system but not synthesized for use on the unit level or supervisory level.
We also note that there is a single individual within PPB who runs EIS and is vested with the discretion to decline to send EIS triggered notifications to chains of command. Unless the triggers are redundant, i.e., the EIS returns the same triggered information for the same officer repeatedly, the declination to send the information to the chain of command is a potential escape valve that undermines the effectiveness and credibility of the EIS. We recommend that triggered information, unless redundant, automatically go to the chains of command.
Because there is only one PPB member fully conversant in the use of the EIS, we also recommend that PPB train other members to be proficient in the use of EIS. If the one person now charged with operational responsibility leaves, institutional memory invariably will leave with him.
36

j. Performance Evaluations
It is our understanding that PPB plans to implement quarterly performance reviews. We support this effort and encourage PPB to conduct assessments of employee performance at every level of the organization. Direct supervisors should evaluate their subordinates at least annually. Prior to the evaluations, supervisors should explain the evaluation process and the expectations to their subordinates. Supervisors should also utilize EIS data in preparation for evaluations. In conducting evaluations, supervisors should meet with their subordinates to discuss positive aspects of their police work, their complaint history, if any, and to discuss any problems or concerns officers may have concerning the department. The direct supervisors should memorialize evaluations, including any discussions in face-to-face meetings. Supervisor should then pass written evaluations through the chain of command, affording the opportunity for superiors to add comments. The written evaluations should be stored in the employee’s training or personnel file. PPB should tie these evaluations into its promotion process, to the extent permitted by law and PPB’s collective bargaining agreements.
VII. ADDITIONAL COMMUNITY CONCERNS
During the course of our investigation, we heard consistent concerns from members of the community. While we do not make a finding that there is a pattern or practice violation in connection with these issues, they implicate community confidence in PPB and warrant further consideration by City officials. First, there is a deep-seated concern that PPB does not provide timely access to medical care following the use of deadly force. Second, segments of the community harbor distrust towards PPB and desire more community policing and outreach.
1. Access to Medical Care
There have been numerous incidents over the years that have prompted community outrage regarding whether PPB officers procured medical attention in a timely fashion following a use of force. PARC identified this as a problem in its study of PPB’s uses of force. The Due Process Clause of the Fourteenth Amendment guarantees a pretrial detainee the right to receive adequate medical care, and that right is violated if officials are deliberately indifferent to the detainee’s serious medical needs. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242-43 (9th Cir. 2010). According to PPB policy, officers “will immediately call EMS if they have any concerns or questions regarding a subject’s medical status during an incident or custody situation. EMS will respond and evaluate and assess the subject’s medical condition.” PPB Manual § 630.45. Although we do not currently find reasonable cause to believe that PPB is engaged in a pattern or practice of deliberate indifference to detainees’ serious medical needs, we are concerned that PPB’s policy leaves too much discretion to officers to determine when medical attention is needed. Instead, there should be a bright line rule that whenever an injury occurs or whenever a subject complains of an injury, EMS is summoned. PPB should review its data to determine if officers are routinely procuring medical care at the earliest opportunity and, if not, revise its policies and training accordingly.
37

2. Community Policing
Throughout our investigation, we had the opportunity to speak with members of PPB and the community who raised issues that affect the community’s confidence in PPB and, in turn, public safety. We heard concerns from community members in a number of areas, including PPB’s response to organized protests and perceived tensions between PPB and communities of color. Following numerous exchanges with a multitude of community members through various forums, including discussions with retired PPB officers, it became apparent that a trust divide exists between PPB and certain segments of the Portland community that should be bridged. We do not make any finding of a pattern or practice violation in this area. However, it is important to discuss the most prevalent concern identified in the course of our investigation – the often tense relationship between PPB and the African American community.
In the beginning of our investigation, Mayor Adams made clear that one of his reasons to call for our investigation of PPB was PPB’s relationships with communities of color. At the conclusion of our investigation, it was clear that PPB could benefit from building additional bridges with minority communities, including but not limited to the African American community. While the scope of this investigation did not include an analysis of whether PPB engages in a pattern or practice of bias-based policing, we found that some community members perceive this practice. We are aware that Chief Reese regularly engages community representatives in meetings to discuss their concerns. We recommend that PPB continue to address this issue directly with the community and seek to expand opportunities for community engagement. One community activist succinctly stated that “the problem in not addressing the racial profiling is that it’s creating an atmosphere of youths distrusting the cops.” Both African American leaders of the community and average citizens told us that they believed they had been victims of racial profiling during traffic stops. One citizen stated in his community interview that he got his windows tinted, so that officers would no longer know that he was black, in an effort not to be pulled over. And he exclaimed to us: “It works!” Another community member told us his belief that “they protect the white folk and police the black folk.”
Unfortunately, these comments provided during our investigation are similar to comments that were provided to the City during a series of five community listening sessions in 2006 with community-based organizations and PPB. PPB should consider reviewing the implementation of its 2009 PPB Plan to Address Racial Profiling. One of the recommendations that came out of the listening sessions included more stringent collection of stop data, but PPB had concerns regarding public release of officer names. Data provided to us by a local watch group indicated that PPB disproportionately stops African Americans. The data indicate that 1224% of PPB’s traffic and pedestrian stops are of African Americans. However, only 6.4% of the City’s overall percentage is African American. Continuing to collect and track stop data would give PPB a better sense of whether a perception of biased policing might be a problem that PBB needs to address. Engaging with the public concerning such data would help assure the public that PPB is committed to ongoing analysis and remedial efforts to address allegations of biased policing.
38

Portland’s own workgroup on biased policing noted in 2010 that disparate treatment complaints are difficult to prove and that among the complaints that they reviewed, the same officers were repeatedly named.33 PPB should consider utilizing its EIS system to track complaints that officers and/or units engage in racially discriminatory policing. Many of the recommendations in this letter focus on actions that PPB and the City of Portland should take. In addition, for those people who believe they were victims of racial profiling, it is incumbent upon them to file a formal complaint on every occasion and include as much specific information about the interaction as possible. The data created by these complaints and resulting investigations will better enable PPB to make informed judgments about these serious allegations of biased policing. Armed with accurate data and comprehensive investigations of complaints, PPB and the City should be able to better address allegations of biased policing.

As noted above, a number of community members expressed their belief that racism exists within the police force, recounting incidents over a 20-year time span which informed their perception. A respected local civil rights leader recently publicly stated that there are good officers in PPB. At the same time, however, he questioned whether officers were held to the same standards as citizens, and whether there is an “us against them” mentality among PPB officers. It is incumbent on PPB officers, not just the executives, to appreciate the far reaching implications of the actions individual officers can have on the organization and the perceived us-against-them mentality.34 One precinct commander relayed that part of the problem with the community’s lack of trust is PPB’s failure to reach out to the general public enough. PPB has positive stories to share about its individual officers. And, while PPB has some regular meetings with community groups, we recommend that PPB provide a broader and more frequent opportunity to listen and respond to the community’s concerns.

We received comments that community members feel they are “under siege” because officers who frequently do not live in the community are doing the policing. PPB can cultivate community trust by providing incentives for its officers to maintain residency in the city they police. Having more officers live in the community they police may help develop trust and rapport with the community, which will strengthen community policing ideals. Ensuring that PPB reflects the diversity of the communities being served would also help to improve the effectiveness of PPB. Under Chief Reese’s leadership, PPB has undertaken a comprehensive recruiting program designed to ensure that PPB attracts a diverse pool of qualified applicants.

Based on concerns we heard regarding difficulties that a number of people of color face in integrating into PPB at the recruitment and promotion stages, PPB may also consider conducting a department-wide intensive cultural sensitivity and competency training, including members of the community. We recognize that PPB has established a Community Partner

33

“Disparate Treatment Complaints, A Complaint Handling and Case File Review Conducted by the Bias-

Based Policing Workgroup of the Citizen Review Committee,” March 2010, at 6.

34

Following a controversial beanbag shooting of an unarmed 12-year old African American girl, many PPB

officers donned t-shirts in support of the officer who shot the girl. To the community, this was a divisive action that

affected their perception of the entire PPB police force.

39

Program for recruits PPB has hired, but who have not yet attended academy training. It is our understanding that the recruits volunteer at local service juvenile assistance organizations. Perhaps this can be expanded beyond juvenile assistance organizations.
Another persistent perception among many community members is that “mere conversations” frequently transition into unlawful pretext stops, and this perception breeds distrust.35 While it appears PPB has policies prohibiting discrimination (§ 344.00) and bias based policing (§344.05), a policy on how and when an officer initiates contacts with citizens is missing. Based on our investigation, including talking with citizens as well as patrol officers, we found that officers tend to blend the distinction between initiating a “mere conversation” and a Terry stop.36 As PPB is aware, a “mere conversation” is contingent upon an individual’s consent. A person may refuse to converse voluntarily with PPB, but this refusal does not, in and of itself, create a basis for performing a Terry stop. In order for a mere conversation to turn into a Terry stop, an officer must have “reasonable suspicion” based upon “objective, articulable facts” that the person is involved in a crime. Terry, 392 U.S. 1 (1968). A Terry stop must be based on an officer’s analysis for multiple factors which he or she must be able to objectively articulate. Id. And, even if the officer does determine there are objective, articulable facts that a person is involved in a crime, there is no right to frisk an individual for weapons unless and until the officer has reasons to believe that the individual has weapons upon his or her person, or poses a threat to the safety of the officer. Id. Revising this practice will go a long way towards increasing rapport and trust with the community and reducing perceptions of bias-based policing.
The aforementioned concerns and tensions expressed by community members appear to date back many years and will require persistent continuing commitment to inclusion and transparency, as well as effective structures to facilitate continuing dialogue.
VIII. REMEDIAL MEASURES
Our investigation reveals reasonable cause to believe that PPB engages in a pattern or practice of using excessive force in violation of the Fourteenth Amendment to the United States Constitution and in violation of federal law. PPB should implement the following remedial measures to correct the constitutional and statutory deficiencies identified above.
1. In addition to exposing all officers to crisis intervention training, have a specialized unit of crisis intervention officers who are selected based on their temperament, experience and desire to interact with individuals with mental illness or in mental health crisis

35

See supra, n.18.

36

A Terry stop refers to the common police practice of briefly detain a person who police reasonably suspect

is involved in criminal activity, but not requiring a showing of probable cause. Terry v. Ohio, 392 U.S. 1 (1968).

40

2. Revise policies to place greater emphasis on de-escalation techniques and require officers to consider less intrusive alternatives before employing force.
3. Implement scenario-based training to ensure officers do not use excessive force and only use force justified to meet the government interest.
4. Train officers to go hands on following the first application of less-lethal force, when feasible, to effectuate the arrest, and to use as few cycles of the ECW as possible.
5. Train and require officers to avoid using more intrusive forms of force, such as beanbag guns and ECWs, on individuals who do not pose a threat to the safety of officers and others or who are suspected of committing minor offenses.
6. Train and require officers to give warnings, where feasible, before using force.
7. Monitor all uses of force to ensure practice consistent with these standards and affirmatively enforce these standards when force is used in an inconsistent manner.
8. Conduct on-site supervisory investigations of all uses of force, including contemporaneous public safety and investigatory statements subject to constitutional protections against self incrimination.
9. Require that PPB officers document each citizen contact, including the reason they stopped the subject, whether the subject consented to the conversation, whether the officer informed the subject that he/she had the right to decline consent, whether the mere conversation escalated further, and demographical information about the subject. Require that supervisors conduct timely reviews of this data.
10. Adopt policies and practices to streamline the investigation of all allegations of officer misconduct to increase efficacy of corrective action. This should include a mandate to address investigative inadequacies identified by CRC. PPB should also keep complainants actively informed and involved of the process.
11. Require PPB to develop a community engagement and outreach plan, with the goal of creating robust community relationships and sustainable dialogue with Portland’s diverse communities.
41

IX. CONCLUSIOl'{
We hope to continue woddng with PPB in an amicable and cooperative fashion to resolve oUt' outstanding concerns, as set forth in this letter. Please note that this findings letter is a public document and will be posted on the Civil Rights Division's website, The DOJ atto1'11eys assigned to this investigation will be contacting the City'S attomeys to discuss this matter in further detail. If you have any questions rega1'ding this lettor, please contact Jonathan Smith,
srr Chief ofthe Civil Rights Division's Special Litigation Section, at (202) 514~5393,

cc: Chief Michael Reese Portland Police Bureau
Jim Van Dyke Portland. City Attorney

Thomas E, Perez Assistant Attorney General Civil Rights Division

~ Amanda Mars all United States Attorney Distl'ict of Oregon

~

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 Statement of Intent
The United States and the City of Portland Oregon agree to work together to ensure that police services are delivered to persons with mental illness in a manner consistent with the United States Constitution and laws. The United States has engaged in a thorough review of uses of force by the Portland Police Bureau. It concluded that the substantial majority of uses of force are constitutional. However, it did find reasonable cause to believe that there is a pattern or practice of unnecessary or excessive uses offorce in certain encounters between police officers and persons with or perceived to have mental illness.
The City does not concede that there is a pattern or practice, however, this is an issue of great concern to the City. Throughout the investigation, the Civil Rights Division has identified concerns to the Portland Police Bureau. PPB and Chief Michael Reese have already undertaken significant measures to address these concerns, both independent of and in response to, information from the Civil Rights Division. The parties seek to support and build on these efforts.
The United States and the City have engaged in extensive and substantive conversations regarding appropriate action to address the findings of the Civil Rights Division. We have agreed to enter into a settlement to resolve the findings and to move forward. The settlement will include:
1. Use of Force: The City is committed to revise its use of force policies to ensure that officers have necessary guidance when encountering someone with mental illness or perceived to have mental illness. In particular, the City will enhance its policy guidance on the use of Electronic Control Weapons (ECW) and techniques to de-escalate encounters arising from non-criminally related well-being checks and arrests for low level offenses.
The Chief s initiative to ensure that supervisors respond to the scene of uses of force will be continued and there will be meaningful use of force reviews through the chain of command. Training curricula will be reviewed and adjusted where appropriate to reflect the requirements of the agreement.
2. Crisis Intervention. PPB will continue to provide crisis intervention training to all officers. In addition, it will expand its Mobile Crisis Unit to ensure availability at all times and enhance non-law enforcement capacity to respond to persons in crisis that do not pose a public safety threat. Each Mobile Crisis Unit team will consist of one specially trained officer and one specially trained mental health worker from a local social services agency.
The City agrees to establish a mental health desk at Bureau of Emergency Communications (911) staffed by trained dispatchers to ensure that calls are properly dispatched. BOEC will also direct suicide prevention/mental health calls to the County Crisis Call Center or Lines for Life when on-site PPB response is not appropriate.

Statement of Intent United States and City of Portland September 12,2012 Page 2
The City also agrees to lead efforts to increase community mental health treatment options, such as through the establishment of a 24 hour secure drop-off and walk-in center that will provide police officers more options when assisting persons experiencing a mental health crisis.
3. Early Intervention System: The City has a robust Early Intervention System eElS) that can track officer specific information as well as unit level and trend data. The City will utilize the system to identify individual officers, supervisors, and units for non-punitive corrective action, and to assess gaps in policy, training, supervision and accountability.
4. Misconduct Investigation: Investigations of allegations of officer misconduct are effective and fair to the officer, complainant and community only if they can be completed in a timely manner. The City agrees to take necessary steps to expedite the investigations of those complaints while preserving the thoroughness and quality of investigations and community participation.
5. Community Engagement and Outreach: Community participation in the oversight of this agreement will be important to its success. A community body will be adopted to assess on an ongoing basis the implementation of this agreement, make recommendations to the parties on additional actions, and advise the Chief and Mayor on strategies to improve community relations. The body will also provide the community with information on the agreement, its implementation and receive comments and concerns. Membership will be representative of the many and diverse communities in Portland, including persons with mental illness, mental health providers, faith communities, minority, ethnic, and other community organizations, and student or youth organizations.
The City and the United States recognize that these issues are of significant concern to the Portland community. Throughout the investigation, both the United States and the City have engaged in extensive community outreach. The current discussions between the parties have been informed by that community input. However, both the United States and the City will benefit from additional views of community members and leaders and will seek additional input in coming days and weeks. The United States invites those who have input that they want to share about this process to contact us. We may be reached at community.portland@usdoj.gov.
The parties commit to continue to work towards finalizing an agreement. The agreement will be filed with the Court, but the action will be dismissed and the Court will review compliance only upon an assertion by the United States of a material breach that cannot be

Statement of Intent United States and City of Portland September 12,2012 Page 3
resolved though good faith negotiations between the parties. The parties commit to have a final agreement by October 12,2012.
Dated:
Sam Adams Mayor, City of Portland
Thomas E. Perez Assistant Attorney General Civil Rights Division
S.Amanda United States Attorney District of Oregon

 
 PROPOSED MEMORANDUM OF AGREEMENT
This Agreement is made and entered between the United States of America (“United States”), City Of Portland (“City”), and the Portland Police Association (“PPA”) (collectively referenced as the “Parties” and individually as a “Party”).
I. RECITALS
1. The Parties enter into this Agreement with the goal of ensuring that the City and its police officers deliver police services to the people of Portland in a safe, effective manner that conforms to the Constitution and laws of the United States. The Parties recognize that the absence of a comprehensive mental health infrastructure has in many instances shifted to the City’s police officers the burden of being first responders to individuals experiencing a mental health crisis. The Parties agree that the City and its officers must therefore be equipped to respond to these situations in a manner that respects the constitutional rights of persons experiencing mental illness, particularly when using force. The United States and the City acknowledge PPA’s important role in facilitating changes and improvements to community policing, and seek to implement changes in the Portland Police Bureau’s (“PPB”) policies, practices and procedures, while ensuring that PPA members’ collective bargaining rights are protected.
2. The United States initiated a civil action against the City pursuant to 42 U.S.C. § 14141, United States v. City of Portland, No. 3:12-cv-02265-SI (“Civil Action”).
3. The United States and the City entered into a Settlement Agreement (“Settlement Agreement”) to resolve the Civil Action. The Settlement Agreement was filed with the Court for approval.
4. The PPA moved to intervene in the Civil Action and contended, among other things, that the Settlement Agreement violated its rights under its collective bargaining agreement with the City and under the Public Employee Collective Bargaining Act (“PECBA”). The Court allowed the PPA to intervene to determine that issue. The City and United States contended that the Settlement Agreement did not violate the PPA’s collective bargaining rights or its rights under the PECBA.
5. The Parties have now reached an agreement on how to proceed. This Agreement is intended to facilitate implementation of the Settlement

MEMORANDUM OF AGREEMENT

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Agreement with the support of the PPA, while preserving the PPA’s ability to protect its members’ collective bargaining rights.
II. MATERIAL PROVISIONS
6. The PPA hereby withdraws its objections to the entry of the Settlement Agreement. The PPA agrees to file any necessary documentation or paperwork with the Court to effectuate its withdrawal.
7. The PPA agrees to withdraw PPA Grievance No. 2012-12 with prejudice, and waives its right to file grievances under its past, current, and future collective bargaining agreement with the City and unfair labor practice complaints under the PECBA regarding the mandatorily negotiable decisions/impacts of actions that the City undertakes to implement the Settlement Agreement which, as of the date of execution of this Agreement, the PPA knew or reasonably should have known would occur, with the limited exception of the provisions discussed in paragraph 9.
8. The PPA retains its right to file grievances under its past, current, and future collective bargaining agreement with the City and unfair labor practice complaints under the PECBA regarding the mandatorily negotiable decisions/impacts of actions that the City undertakes to implement the Settlement Agreement which, as of the date of execution of this Agreement, the PPA did not know and reasonably could not have known would occur.
9. Notwithstanding paragraph 7, the PPA retains its right to file grievances under its past, current, and future collective bargaining agreement with the City and unfair labor practice complaints under the PECBA regarding mandatorily negotiable decisions/impacts of: (i) actions the City undertakes to implement paragraphs 124 and 127 regarding the revision of protocols for compelling statements and obtaining voluntary statements from officers involved in force events; (ii) actions the City undertakes to implement paragraph 128 that are substantially similar to the changes proposed to City Code 3.20.140(I)(2), 3.21.070(P), 3.21.120(C)(2), 3.21.120(D)(3), 3.21.120(D)(4), 3.21.220 by Item#1020 from the October 23, 2013 Portland City Council agenda; and (iii) remedies or modifications of the Settlement Agreement made by the Court to enforce the Settlement Agreement under paragraph 186, unless the remedy is specific performance which requires City action to implement existing terms of the Settlement Agreement (except for paragraphs 124, 127, and 128) that the PPA did not know or reasonable could not have known would occur consistent with paragraph 8. Nothing in this paragraph shall be construed as an admission by the City that the subjects in (i) through (iii) implicate mandatorily negotiable decisions or

MEMORANDUM OF AGREEMENT

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impacts nor shall it be construed as a waiver by the City of its management rights with regard to those subjects.

10. Nothing in this Agreement in any way abridges, modifies, or impairs the PPA’s right to file grievances under its past, current, and future collective bargaining agreement with the City and unfair labor practice complaints under the PECBA over collective bargaining issues that are unrelated to the implementation of the Settlement Agreement.

11. The parties agree that paragraph 133 of the Settlement Agreement in no way affects the just cause disciplinary standard under the PPA-City collective bargaining agreement.

12. If the parties to this Agreement have a dispute over the meaning or application of this Agreement, then the parties shall employ the following dispute resolution procedure.

a. Step 1: Counsel for the Parties shall meet telephonically or in person as soon as is mutually convenient to discuss the dispute. Persons attending the meeting shall have authority to resolve the concerns, unless resolution of the concern requires adoption of an ordinance or resolution by City Council, authorization from the Assistant Attorney General for the Civil Rights Division of the United States Department of Justice, or by vote of the PPA Executive Board or general membership.

b. Step 2: If a meeting between the Parties fails to resolve the concerns, the Parties agree to participate in mediation conducted by retired Chief Justice Paul De Muniz. If Justice De Muniz is unavailable, declines the appointment, or agreement on compensation cannot be reached, the Parties shall select a substitute mediator. If the Parties cannot agree upon the selection of a substitute mediator, the Parties shall each submit the name of one potential mediator to the United States District Judge presiding over this Civil Action, who shall appoint the mediator from one of the names provided.

c. Step 3: If mediation fails to resolve the dispute, the United States, the City, or the PPA may file a motion in the Civil Action to enforce compliance with the terms of this Agreement or to seek a declaration of the meaning of this Agreement. The motion or request for declaration shall only allege concerns raised by the Parties which were the subject of mediation. The Parties shall then meet with the Court to schedule a date on which the motion or

MEMORANDUM OF AGREEMENT

PAGE 3 OF 6 


request for a declaration shall be heard or will otherwise comply with the Court’s preferred procedure.

i. If the dispute concerns the meaning or application of this Agreement, the Parties agree that the United States District Judge presiding over this Civil Action: shall interpret the meaning of the Agreement; shall determine whether this Agreement has been breached; and shall issue an appropriate remedy, if any.

ii. If a dispute arises involving the application of paragraphs 711 of this Agreement to a particular action, the United States District Judge presiding over this Civil Action shall determine whether the party has waived or retained its right to engage in the disputed action. If the United States District Judge presiding over this Civil Action determines that the right has been waived, then the Party who is engaged in that action shall have the right to continue that action. If the United States District Judge presiding over this Civil Action determines that the action has not been waived, then the action shall cease until the City and PPA fulfill their collective bargaining obligations.

13. This Agreement shall remain in full force and effect until such time as the Settlement Agreement is vacated or expires, or until the Parties modify or cancel this Agreement in writing.

III. GENERAL PROVISIONS

14. The Parties agree that nothing in this Agreement shall be construed as an admission of wrongdoing by the City or the PPA and its members, or evidence of liability under any federal, state, or municipal law.

15. This Agreement shall constitute the entire integrated agreement of the Parties with respect to the specific terms of this Agreement. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding.

16. This Agreement is enforceable only by the Parties. No person or entity is, or is intended to be, a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.

MEMORANDUM OF AGREEMENT

PAGE 4 OF 6 


17. The Parties shall notify each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any City, county, or state court, removal to a federal court shall be sought by the Parties.
18. This Agreement is not intended to impair or expand the right of any person or organization seeking relief against the City, PPA, or any officer or employee thereof, for their conduct or the conduct of PPB officers; accordingly, it does not alter legal standards governing any such claims by third parties, including those arising from city, state, or federal law. This Agreement does not expand, nor will it be construed to expand, access to any City, PPA, or DOJ document, except as expressly provided by this Agreement, by persons or entities other than DOJ, the City, and the PPA. All federal and state laws governing the confidentiality or public access to such documents are unaffected by the terms of this Agreement.
19. Nothing in this Agreement requires the City to disclose documents protected from disclosure by the Oregon Public Records Law.
/ / /

MEMORANDUM OF AGREEMENT

PAGE 5 OF 6 


SO AGREED 
 FOR THE UNITED STATES: 
 S. AMANDA MARSHALL United States Attorney District of Oregon
__________________ ADRIAN L. BROWN BILLY J. WILLIAMS Assistant U.S. Attorneys
FOR THE CITY:
_____________________________ CHARLIE HALES Mayor City of Portland Date:_________________________
FOR THE PPA:
_____________________________ DARYL TUNER President Portland Police Association Date:________________________
MEMORANDUM OF AGREEMENT

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division JONATHAN M. SMITH Chief, Special Litigation Section __________________ LAURA L. COON Special Counsel __________________ R. JONAS GEISSLER 
 __________________ MICHELLE A. JONES 
 Senior Trial Attorneys 
 APPROVED AS TO FORM
____________________________ JAMES VAN DYKE City Attorney City of Portland
PAGE 6 OF 6 


 
 COLLABORATIVE AGREEMENT This Agreement is made and entered into by and among the undersigned: United States of America (“United States”); City of Portland (“City”); and Albina Ministerial Alliance Coalition for Justice and Police Reform (“AMA Coalition”) (hereinafter “Parties”).
I. Introduction 1. The United States and the City value the significant and meaningful contributions of the AMA Coalition to ongoing efforts of the City’s Portland Police Bureau (“PPB”) to safely and effectively provide policing services to the entire Portland community. Policing must be consistent with the Constitution and laws of the United States. The United States and the City acknowledge the strengths of the AMA Coalition, its individual members and member groups, to facilitate communication with the broader Portland community and to advocate for community policing. Accordingly, the Parties enter this Collaborative Agreement to utilize these strengths while addressing concerns raised by the AMA Coalition.
II. Background 2. The United States initiated a civil action against the City pursuant to 42 U.S.C. § 14141, United States v. City of Portland (Case No. 3:12-cv-02265-SI). The United States and the City filed with the Court a proposed Settlement Agreement (“Settlement Agreement”) designed to resolve the United States’ Complaint upon the successful implementation of that Settlement Agreement. When used in this Collaborative Agreement, terms that are defined in the Settlement Agreement shall have the meanings assigned to them in that Settlement Agreement.
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between Albina Ministerial Alliance Coalition for Justice and Police Reform, United States, and the City of Portland

3. AMA Coalition moved to intervene in the United States’ civil action (the “Motion”).

The Court has granted AMA Coalition enhanced amicus status. The Court denied the AMA

Coalition’s Motion to intervene by right or permission in the remedy phase, and has reserved

judgment on whether AMA Coalition may intervene in the merits phase of this action.

4. The Court has encouraged the Parties, including the AMA Coalition, to engage in

mediation to attempt to reach agreement on possible revisions to the proposed Settlement

Agreement in order to address, among other things, AMA Coalition’s objections to the proposed

Settlement Agreement.

5. The Parties have engaged in mediation in an effort to reach agreement on the proposed

Settlement Agreement.

6. This Collaborative Agreement permits the United States and the City to proceed with the

implementation of the Settlement Agreement, while preserving AMA Coalition’s enhanced amicus

status and right to bring a separate civil action, if at all, to address causes of action not within the

scope of the United States’ Complaint.

III.

Material Provisions

7. The AMA Coalition recognizes the Settlement Agreement presents an opportunity for

systemic change within the PPB. The AMA Coalition will not object to the acceptance of the

Settlement Agreement by the Court. However, the AMA Coalition and its members may still offer

comment to the Court at a hearing on consideration of the Settlement Agreement, including any

specific requests to strengthen or broaden the scope of the terms of the Settlement Agreement.

8. The AMA Coalition agrees to advocate for the implementation of the Settlement

Agreement reforms that the AMA Coalition supports. The AMA further agrees to oppose any

attempts to weaken or dilute the Settlement Agreement reforms that the AMA Coalition supports.

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between Albina Ministerial Alliance Coalition for Justice and Police Reform, United States, and the City of Portland

9. The Parties acknowledge that the Settlement Agreement does not preclude the City from making additional changes to its policies, training, practices, procedures, and oversight mechanisms of IPR and PPB. The AMA Coalition shall continue to work to improve policy, practices, and accountability within the PPB.
10. The City shall provide the earliest possible and ongoing opportunity for the AMA Coalition to participate in the process the City adopts for selecting candidates for the Compliance Officer and Community Liaison (“COCL”).
11. The Parties agree that the City may adopt a different process than that described in Settlement Agreement Paragraph 145 for selection of the at-large members of the Community Oversight Advisory Board (“COAB”). The alternative process shall be designed to fairly afford an opportunity to all persons who live, work, or are enrolled in school in Portland and over the age of 15 to serve on the COAB. The City shall provide an opportunity for public participation, including AMA Coalition participation, in any alternative process the City adopts. The City shall consult with the Parties prior to the adoption of any alternative process.
12. The City shall give public notice of the public hearings described in Paragraph 146(b) of the Settlement Agreement. The City shall provide such notice at least two weeks prior to each such hearing, thereby affording AMA Coalition and the public at large the opportunity to attend and participate in the hearings.
13. The City agrees to use its best efforts to make the following information available with as much advance notice as possible, with a goal of three weeks, in one location on a City website: meeting times and locations of the Training Advisory Council, the Citizen Review Committee, the Community/Police Relations Committee and the Community Oversight Advisory Board; as well as all PPB audits and reports related to implementation of the Agreement and final drafts of all new or
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between Albina Ministerial Alliance Coalition for Justice and Police Reform, United States, and the City of Portland

revised policies that are proposed specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement.
14. The AMA Coalition agrees to work in partnership with other entities to support the COAB’s community outreach described in Paragraph 146 of the Settlement Agreement.
15. Within one year of the Effective Date of the Settlement Agreement, representatives of the United States and the City shall meet in-person with counsel and representatives of the AMA Coalition to discuss the City’s progress in implementation of the Settlement Agreement and any concerns that the AMA Coalition has regarding implementation. The City will invite the COCL to attend this meeting. Information discussed at the meeting will not be confidential.
IV.General Provisions 16. The Parties agree that nothing in this Collaborative Agreement shall be construed as an admission of wrongdoing by the City or evidence of liability under any federal, state, or municipal law. 17. This Collaborative Agreement shall constitute the entire integrated agreement of the Parties with respect to the specific terms of this Collaborative Agreement. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding. If, in the course of interpreting this Collaborative Agreement, there is an ambiguity that cannot be resolved by the Parties or in mediation, evidence including the Parties’ course of dealing and parol evidence may be used.
Page 4 of 7 - COLLABORATIVE AGREEMENT
between Albina Ministerial Alliance Coalition for Justice and Police Reform, United States, and the City of Portland

18. This Collaborative Agreement is enforceable only by the Parties. No person or entity is, or is intended to be, a third-party beneficiary of the provisions of this Collaborative Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Collaborative Agreement.
19. The Parties shall notify each other of any court or administrative challenge to this Collaborative Agreement. In the event any provision of this Collaborative Agreement is challenged in any City, county, or state court, removal to a federal court shall be sought by the Parties.
20. This Collaborative Agreement is not intended to impair or expand the right of any person or organization seeking relief against the City, PPB, or any officer or employee thereof, for their conduct or the conduct of PPB officers; accordingly, it does not alter legal standards governing any such claims by third parties, including those arising from city, state, or federal law. This Collaborative Agreement does not expand, nor will it be construed to expand, access to any City, PPB, or DOJ document, except as expressly provided by this Collaborative Agreement, by persons or entities other than DOJ, the City, and PPB. All federal and state laws governing the confidentiality or public access to such documents are unaffected by the terms of this Agreement.
21. Nothing in this Agreement requires the City to disclose documents protected from disclosure by the Oregon Public Records Law.
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between Albina Ministerial Alliance Coalition for Justice and Police Reform, United States, and the City of Portland

SO AGREED FOR THE UNITED STATES:
S. AMANDA MARSHALL United States Attorney District of Oregon Date:________________________________

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division JONATHAN M. SMITH Chief, Special Litigation Section
___________________________ LAURA L. COON Special Counsel
___________________________ R. JONAS GEISSLER Senior Trial Attorney
___________________________ T. JACK MORSE Trial Attorney

FOR THE CITY:

CHARLIE HALES Mayor City of Portland
Date:________________________________

APPROVED AS TO FORM:
JAMES VAN DYKE City Attorney City of Portland

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between Albina Ministerial Alliance Coalition for Justice and Police Reform, United States, and the City of Portland

FOR THE AMA COALITION FOR JUSTICE AND POLICE REFORM: DR. LEROY HAYNES Chairperson AMA Coalition Date:________________________________
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between Albina Ministerial Alliance Coalition for Justice and Police Reform, United States, and the City of Portland

 
 U.S. Attorneys » District of Oregon » News Department of Justice U.S. Attorney’s Office District of Oregon
FOR IMMEDIATE RELEASE Friday, December 20, 2013
United States of America v. City of Portland, Case No. 3:12-cv-2265 Notice of Fairness Hearing
Tuesday, February 18, 2014, 9:00 a.m., Courtroom 13B
Overview of the Case
The U.S. Department of Justice has found reasonable cause to believe that the Portland Police Bureau has an unconstitutional “pattern or practice” of using excessive force against persons with actual or perceived mental illness. Based on that finding, the U.S. sued the City of Portland. The City of Portland reached a proposed Settlement Agreement with the U.S. to remedy the identified problems. The Settlement Agreement has been considered and deemed fair and reasonable by the Portland Police Association. The Albina Ministerial Alliance Coalition for Justice and Police Reform does not object to the acceptance of the Settlement Agreement by the Court and has agreed to advocate for the implementation of the Settlement Agreement reforms that the AMA Coalition supports. The Court will hold a Fairness Hearing to decide whether the proposed Settlement Agreement is fair, reasonable, and adequate. The Fairness Hearing will be held on Tuesday, February 18, 2014, beginning at 9:00 a.m., in Courtroom 13B. The Fairness Hearing will be open to the public.
The Complaint in this case, the proposed Settlement Agreement, the Court’s Order setting the Fairness Hearing and its governing procedures, and the Testimony Form for persons wanting to submit oral or written testimony regarding the Settlement Agreement are available free of charge at the District Court’s Civil Intake Counter and at http://ord.uscourts.gov/fh.
Procedures Before the Fairness Hearing
The Court invites members of the public to testify, in writing or orally, on the following topics:
Is the Agreement fair to everyone affected? Is the Agreement reasonable? Is the Agreement adequate to solve the problems identified in the Complaint?
To do so, persons are encouraged to submit the Testimony Form or a similar written submission no later than January 31, 2014. Submissions may be made to the Clerk of the Court in person or via first class mail, or via email to Mary_Austad@ord.uscourts.gov. If anyone is unable to attend the scheduled hearing and wishes to provide oral testimony, he or she may do so by video and submit a DVD. Submissions will be retained by the Court until the close of the case, but will not be part of the public record unless the Court orders otherwise.
Procedures at the February 18, 2014 Fairness Hearing Upon arrival at the Courthouse, members of the public will sign-in at Courtroom 13B. Those who previously provided a written submission requesting oral testimony will be given priority. Those who did not provide advance notice of their intent to testify may testify, at the Court’s discretion and if time permits. The Court will determine the order of the individuals providing testimony. Each member of the public will be provided five (5) minutes to testify. Organizations will be limited to presenting three (3) representatives and each representative will have ten (10) minutes to testify. The Court may extend time for testimony for good cause. Only testimony that is relevant, as determined by the Court, will be allowed at the hearing.

The Testimony Form can be found Here USAO - Oregon

Updated January 29, 2015

 
 U.S. Department of Justice

April 6, 2015

MEMORANDUM FOR THE COMPLIANCE OFFICER AND COMMUNITY LIASION

FROM:

The DOJ Monitoring Team

SUBJECT: COAB Administration and Operations

This memorandum is provided pursuant to your request for DOJ’s insight into recent questions raised by individual members of the COAB and the public regarding administrative operations of the COAB and its committees. We encourage you to share the following points with the COAB. Should any COAB members have questions or concerns regarding these matters, a member of our team will be available to discuss at the April 9th meeting.

• DOJ supports and concurs with the roles and responsibilities letter issued by the COCL on March 26, 2015. All COAB authority must be derived from the Settlement Agreement (SA). The district court found the SA fair, adequate, and reasonable. Authority for the COAB and its functions does not extend beyond the SA.

• There is no basis for any assertion that non-COAB members may sit on the executive committee. The COAB is made up of 15 voting members and five advisory non-voting (sworn officers) members (para 142). The COAB may form an executive committee or other subcommittees to accomplish its tasks under the SA (para 143).

o Executive Committee – The bylaws provide that the executive committee will “lead and guide” the COAB in its work. The COAB does not have the authority to delegate to non-COAB members its authority for COAB functions. Therefore, only voting COAB members shall serve on an executive committee
o Subcommittees – The bylaws allow subcommittees to also include non-voting alternates and members of the public. Only a majority vote of the COAB—not subcommittees—may make recommendations on SA implementation (para 151). Therefore, any work product, actions, and recommendations must be submitted to the COAB for consideration and vote. In essence, the subcommittees shall not act independently of the COAB, nor make recommendations on behalf of the COAB. Finally, advisory members should be included on the subcommittees as well.

• The COCL is required to “perform activities necessary for the efficient operations of the board,” such as clarifying roles and responsibilities, including those of committees (para 144).
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• The COAB reports to the COCL (para 144). It is the COCL, not the COAB, making the decision on the operations of the board (id.). The COCL’s decisions stand on administrative/operational issues of the board (id).
• In making its decisions on efficient operations of the COAB, the COCL can and should consider the interpretations of the SA by the City and the DOJ (see para 141 – requiring the city, in consultation with the DOJ, to establish the COAB).
• The City Attorney is required by the SA to provide guidance on public meeting laws to the COCL, and to represent the COCL in any challenge regarding compliance with those laws (paras 154-155).
• The City Attorney may provide guidance to the COCL on the structure and operations of the board, as it established such board in consultation with DOJ (para 141). Such advice on the structure and operations of the COAB is not in conflict with the City’s role in defending its position on legal compliance of the terms of the settlement. The district court found the SA fair, adequate, and reasonable, including the provisions regarding the City Attorney’s roles. As such, the COAB does not need independent legal counsel.
• Neither the COAB nor the COCL make substantive legal decisions or investigations of the City or PBB—instead SA paragraph 141 clearly delineates COAB’s advisory roles: (a) independently assess the implementation of the SA; (b) make recommendations to the Parties and the COCL on other actions; (c) advise the Police Chief and Commissioner on strategies to improve community relations; (d) provide the community with information on the SA and its implementation; (e) contribute to the development and implementation of the PPB Community Engagement and Outreach Plan; and (f) receive public comments and concerns. The scope of the COAB and its meetings must be maintained within these roles and objectives (para 154). DOJ is the legal monitor (para 167).
o The COAB must use the tools provided in the SA to “independently assess the implementation of the SA.” For example, providing comments on the reports of the COCL, including comments or concerns from the public at large during the quarterly town-hall meetings, as provided by paragraph 163.
o In determining whether to make recommendations on “other actions,” the COAB must, again, use the tools provided in SA. For example, the COAB must follow the processes provided by para 146a-h for the outreach survey, public hearings on outreach (with PPB), and consultation with community members and PPB.
• Both the COCL and the City may provide training to the COAB as necessary pursuant to their roles provided in the Settlement Agreement for operations of the COAB (para 144, 154, 155).
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 U.S. Department of Justice

December 2, 2015

MEMORANDUM TO THE COMPLIANCE OFFICER AND COMMUNITY LIAISON

FROM:

The DOJ Monitoring Team

SUBJECT: COAB Operations

The United States Department of Justice (DOJ) provides this memorandum, in consultation with the City attorney’s Office to provide guidance to COCL and COAB members in light of issues raised during recent COAB meetings concerning the integrity of the process by which the COAB considers and votes on recommendations. The purpose of the COAB is to “promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety.” Settlement Agreement Section IX, page 50.

COAB members’ contribution and efforts are worthy. They provide a vital voice for many community stakeholders. We share the desire for the COAB to succeed in its purpose. COAB’s success requires credible assessments and adherence to the processes established by both the Settlement Agreement and COAB’s bylaws. Antagonism—whatever the source—and circumventing established procedure undermines your credibility and fails to afford the respect that each COAB member’s contribution merits. Accordingly, as the monitors of this case, DOJ provides the following technical assistance to clarify and guide COAB’s substantive work going forward:

1. COAB subcommittees must abide with Oregon’s public meeting laws. The City Attorney has previously provided the COAB guidance on public meeting laws. We are advised that the City Attorney’s Office is in the process of creating a comprehensive guide for all volunteer boards and commissions that will clearly address many of the technical issues faced by COAB. The guide will be available before the end of the year and further training will complement it as necessary.

2. The COAB must abide by its own bylaws and procedures it has established for itself, specifically with respect to quorum and process for consideration of recommendations. If the COAB does not do so, it risks alienating its own members, and being perceived as illegitimate by the community. The COAB should be generally hesitant to amend its bylaws in reaction to convenient circumstances that may arise.

3. As we previously stated: the COAB does not have the authority to delegate to nonCOAB members its authority for COAB functions. Accordingly, while the COAB may utilize volunteers to assist in its efforts, learn from the community, and spread communications to the community, the COAB should not delegate the drafting of its work product, particularly regarding recommendation to be forwarded to the full COAB for a vote, to non-COAB members.

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4. As we have stated, only a majority vote of the COAB—not subcommittees—may make recommendations on Settlement Agreement implementation (paragraph 151). Likewise, no single member or subcommittee or work group may properly assert that it has authority to forward recommendations on behalf of all or part of the COAB directly to the Department of Justice without a majority vote of approval from the COAB.
5. COAB members must be informed to critically assess policies and compliance. Gaining necessary information to fully understand the reforms contemplated by the Settlement Agreement will require some, if not all, community COAB members to observe operations at PPB facilities. We understand that a few COAB members are hesitant to visit PPB facilities. If specific COAB members are unwilling to enter PPB facilities for the purposes of assessing implementation of the Settlement Agreement, even under the watchful eye of other COAB members and other observers, it is difficult to imagine developing a healthy empathetic relationship in which police and community members are able to view issues from one another’s perspective. If any particular COAB member simply will not attend any meetings or training necessary to critically assess implementation of the terms of the Settlement Agreement, such COAB member may not be able to fulfill their commitment as a COAB member, which the COCL must assess. We encourage both COAB voting members and police advisory COAB members to facilitate relationships and dialogue necessary for public trust and safety.
6. The COAB’s recommendations are valuable input on behalf of the community at large. The COAB’s recommendations, however, are not a mandate. If the Parties decline COAB recommendations, it is only after thoughtful consideration. We cannot always inform the COAB of the deliberative process behind our consideration. However, COAB-approved recommendations carry the weight of the COAB’s public position. We respect and carefully consider all COAB-approved recommendations.
7. Many COAB members have expressed deep concern over the time spent on COAB work. We are mindful of volunteer fatigue and deeply appreciate the valuable time COAB members have sacrificed for this matter of great public importance. In order to conserve COAB members’ valuable time, we strongly advise focusing efforts on the core mission of paragraph 144 and the CEO plan and remaining vigilant against mission creep that detracts from the goal of timely, sustainable compliance with the Settlement Agreement and, more importantly, constitutional and effective policing.
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 U.S. Department of Justice Civil Rights Division

JYP:LC:JG:BB DJ 207-61-1

Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530

August 10, 2015
Via email Ellen Osoinach, Deputy City Attorney Office of the City Attorney 1221 SW 4th Avenue, Ste 430 Portland, OR 97204
RE: United States v. City of Portland, 3:12-cv-02265-SI
Dear Ms. Osoinach:
This letter memorializes the status and process of the United States’ ongoing monitoring review of Portland Police Bureau (“PPB”) policies in connection with paragraphs 157 and 169 of the settlement agreement in United States v. City of Portland. We share our understanding of this process to further a cooperative, transparent policy review.
As you know, the District Court’s order entering the settlement agreement has been subject to appeal and mediation. The parties have reached resolution and, on Thursday, July 30, the District Court entered the agreed amended order approving the settlement agreement. We thank the City for its efforts in mediation to resolve the appeal and its continuing efforts to implement portions of the settlement agreement remedies during the pendency of the appeal. With the rededication of resources following the resolution of appeal we continue to develop our compliance monitoring plan, including seeking a more efficient review of policies.
We continue to seek to provide comments to policies within the 45-day timeframe afforded under the settlement agreement, and in coordination with PPB’s current Universal Review process.1 Thus far, under that process, we have recommended substantial reconsideration of crisis intervention and mental health policies and officer accountability policies. Also under that process, we have asked for PPB forbearance on reconciliation of certain policies. Namely, for officer accountability and force reporting policies the City must first meet the settlement agreement’s conditions precedent concerning those issues before promulgating and implementing policies.

1 Within 180 days of the effective date, i.e., August 29, 2014 to February 25, 2015, the settlement agreement required the revision and/or development of all policies, procedures, protocols, training curricula, and practices specific to force, training, community-based mental health services, crisis intervention, employee information system, officer accountability, and community engagement to ensure that they are consistent with, incorporate, address, and implement all provisions of the agreement.. See Paragraph 169. The settlement agreement also provides the United States and COCL 45 days within which to comment on new or revised policies. Ibid. Though the City did not meet the 180-day deadline for development/revision of policies, we commend the City on including a 30-day public comment period in the Universal Review process for receipt and consideration of public input.
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The parties acknowledged in the settlement agreement that community input is critical to promote public confidence in PPB. Despite the 30-day timeframe for public comment under the existing Universal Review process, given the settlement agreement requirement that the COAB vote on settlement agreement recommendations (Par. 151), and the COAB’s meeting schedule, DOJ and COCL likely will not have time to consider COAB recommendations prior to submitting our comments with the current structure of the Universal Review Process.2 We therefore ask the City to consider an extension of the Universal Review process timeline on specific policies that the City and the United States identify as relating to settlement agreement compliance, to allow time to consider COAB comments on those identified policies before we submit our comments. Moreover, to allow the United States time to consider COAB and public comment prior to submitting our comments, we request our initial 30 days to run at the close of the public comment period. We will continue to offer joint comment with the COCL where we can reach agreement in a timely fashion.

Under this approach, a policy will not be considered approved under the settlement agreement until after: (a) PPB produces a final policy following PPB’s internal reconciliation, i.e., “revised” policies “as they are promulgated” under Paragraph 169, and (b) the United States then reviews and approves the revised policy for compliance with the settlement agreement and constitutional standards. The parties anticipated this final step in our earlier discussions regarding policy review, which is consistent with paragraph 169 of the settlement agreement. We earlier sought to fold into Paragraph 169’s 45-day time frame the 30 days for Universal Review and 15 days for final approval after PPB reconciliation. With the exception of the requested extensions to provide COAB a process to comment, we still seek to accomplish approvals within this timeframe, though we anticipate PPB’s reconciliation between these steps will vary in length of time depending on comments and prerequisites for policies.

Regarding the substance of our policy review, we seek to apply a trunk-and-branch rubric to the policy areas specific to the settlement agreement. If we first approve a trunk policy, PPB can more consistently and logically address all branch policies that flow from the trunk. For example, all force policies for use of different devices and reporting must follow from the principle force policy that governs the overall force standard. There are four policy trunks relating to provisions of the settlement agreement: (1) force; (2) training; (3) crisis intervention and mental health; and (4) accountability. A fifth area related to the settlement agreement, Employee Intervention System, is a stand-alone policy.

We have identified the following policies as relating to settlement agreement compliance for which we anticipate providing review and comment, and we propose a process that will allow for efficient processing of review and comments by the public, COCL, and COAB:

Force – Settlement Agreement Section III:

Directive 1010.00 – Use of Force

On October 30, 2013, before entry of the settlement agreement, we approved a version of 1010.00 that was subject to our district court mediation to resolve the objections to the

2 COAB’s review of policies has only recently begun in earnest. On July 20, 2015, the COCL provided a document request form to COAB members. It is our understanding that COAB subcommittees or workgroups are seeking production of documents to facilitate their review of certain policies.
2

Policy 315.30 – Satisfactory Performance
Directive 416.00 – Post Officer Involved Deadly Force/Temporary Altered Duty (overlaps 48-hour rule issue) Directive 1010.10 – Post Deadly Force Procedures (overlaps 48-hour rule issue)
Policy 940.00 – After Action Reports and Operation Orders Policy 910.00 – Filed Reporting Handbook Instructions Directive 1051.00 – Electronic Control Weapon

agreement by the PPA and AMAC. COCL cited in its initial quarterly report an alleged lack of clarity in policy 1010.00. We have initiated a review of the current 1010.00 with COCL and while COCL has offered comments on the policy, COCL has also solicited comments from COAB. COCL wants the benefit of COAB’s comments before finalizing COCL’s own comments. We anticipate COCL’s comments on these policies by the end of August.
On October 30, 2013, before entry of the settlement agreement, we approved a version of 315.30 that was subject to our district court mediation to resolve the objections to the agreement by the PPA and AMAC. We anticipate further review of this policy following COCL and COAB review of 1010.00, from which policy PPB split the performance standard into this stand alone policy.
On June 30, 2015, we advised PPB that PPB had not completed the conditions precedent in Paragraphs 124-127, necessary to promulgate these policies. We further advised that we had requested COCL to opine on these policies. Finally, we requested certain documents to assess the current practice with respect to these policies. Accordingly, we requested PPB to forebear on reconciliation of these policies. We anticipate COCL comments on these policies by the end of August. We anticipate coordinating with COCL to provide comments shortly after COAB completes its review.
On October 30, 2013, before entry of the settlement agreement, we approved a version of 1051.00 that was subject to our district court mediation to resolve the objections to the agreement by the PPA and AMAC. We

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anticipate further review of this policy following COCL and COAB review of 1010.00.

Policy 630.45 – Emergency Medical Care Custody Transports

1010.20 – Physical Force

If not replaced by revised 1010.00, no longer listed as a separate policy.

1020.00 – Firearms

1030.00 – Baton Use

1040.00 – Aerosol Restraints

1050.00 – Less Lethal Weapons and Restraints

1090.00 – Special Weapon Use

Policy 635.10 – Crowd Management/Crowd Control

Executive Order re Directive 850.30 –

To the extent it implicates use of force, force

Temporary Detention and Custody of Juveniles reporting, and medical care

Executive Order re Directive 850.50 – Arrests, To the extent it implicates use of force, force

Felony Processing of Adults

reporting, and medical care

870.20 – Custody & Transportation of Subjects

May also relate to crisis and mental health, if
no separate policy is developed for transport to
the anticipated Unity Center for Behavioral Health3

Training – Settlement Agreement Section IV

Executive Order 1500.00 – Training

This policy is currently in a comment period.

Policy 690.00 – Training – Precinct/Division

Policy 210.05 – Field Training

Policy 412.00 – Employee Retraining Program

3 The Unity Center for Behavioral Health is being developed to provide psychiatric emergency services, a co-located centralized inpatient facility, and enhanced partnerships with community organizations providing behavioral health and substance use disorder services, and is anticipated to open in November 2016. See http://www.legacyhealth.org/for-health-professionals/tools-and-resources-for-providers/edoctalk/2015-04edition/apr-2015-unity-update.aspx.
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Crisis Intervention – Settlement Agreement Section VI

Directive 850.20 – Mental Health Crisis Response
Directive 850.21 – Peace Officer Custody
Directive 850.22 – Police Response to Requests for Mental Health Custody
Directive 850.25 – Police Response to Mental Health Facilities

On May 8, 2015, we provided PPB with DOJ comments on these policies, with which COCL concurred.
On May 12, 2015, we met with representatives of the City and COCL to review these policies. The City withdrew the policies and agreed to redraft.
On June 23-24, 2015, we provided our expert, Dr. Mark Munetz, for meetings with PPB and BOEC to assess implementation and provide technical assistance that would inform the redraft of the policies. The City is currently considering our technical assistance in its further redrafting of these policies.

640.30 – Communications with People with Disabilities

BOEC Mental Health Reference Guide, Suicide Reference Guide, and Project Respond Reference Guide

BOEC furnished the Mental Health Reference guide during our June 23-24, 2015 assessment with Dr. Mark Munetz. We have requested, but have yet to receive, the other two guides.

Policies regarding transportation, handover, and referral to the anticipated Unity Center for Behavioral Health

With the expected development of the Unity Center facility, we expect PPB to develop protocols for its officers’ interactions with the facility, which protocols we will review.

Employee Intervention System – Settlement Agreement Section VII

Policy 345.00 – Employee Information System

On May 8, 2015, we provided PPB with written comments on this policy. On May 14, 2015 we met with City officials and provided comments to this policy.

Officer Accountability – Settlement Agreement Section VIII

Directive 330.00 – Internal Affairs, Complaint On May 8, 2015, we provided PPB with

Intake and Processing

written comments on these policies. On May

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Directive 331.00 – Service Improvement Opportunities
Directive 332.00 – Administrative Investigations Directive 330.00 – Criminal Investigations of Police Bureau Employees
Directive 334.00 – Performance Deficiencies
Directive 335.00 – Discipline Process

14, 2015, we and COCL met with PPB and IPR officials to discuss these policies and the requirements of the settlement agreement. Our expert, Chief Charles Reynolds, and COCL’s expert attended by telephone. We asked PPB and IPR to convene a work group to undertake the tasks required by the settlement agreement in order to revise the policies in a compliant fashion. PPB still has these policies under consideration.

Directive 336.00 – Police Review Board

Directive 337.00 – Police Review Board Selection

Directive 338.00 – Discipline Guide

Policy 341.00 – Discipline

Unless replaced

Policy 220.40 – Lawsuits and Claims

Policy 120.00 – Inspections

Directive 310.20 – Retaliation Prohibited

Directive 310.50 – Truthfulness

Directive 315.00 – Laws, Rules, and Orders

Directive 344.00 – Prohibited Discrimination

Directive 344.05 – Bias-Based Policing

Executive Order re: Directive 215.00 – Sworn Performance Evaluations

Executive Order re: Directive 310.00 – Conduct, Professional

Directive 310.40 – Courtesy

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We thank you and the PPB for its continued efforts toward implementation of the settlement agreement with respect to meaningful policy revision, and we look forward to further discussing this process with you.

Sincerely,

BILLY J. WILLIAMS Acting United States Attorney District of Oregon

/s/ R. Jonas Geissler R. JONAS GEISSLER Senior Trial Attorney

/s/ Adrian Brown ADRIAN L. BROWN Assistant U.S. Attorney

/s/ Brian Buehler BRIAN BUEHLER Trial Attorney

cc: Shuana Curphey, Esq. Ashlee Albies, Esq. Anil Karia, Esq. Kathleen Sadaat Dennis Rosenbaum, Ph.D. Amy Watson, Ph.D. Tom Christoff via email

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 U.S. Department of Justice Civil Rights Division

JCP:LCC:RJG:ALB:BDB DJ 207-61-1

Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530

August 17, 2015
Via email Ellen Osoinach, Deputy City Attorney Office of the City Attorney 1221 SW 4th Avenue, Ste 430 Portland, OR 97204
RE: Technical Assistance Regarding Crisis Intervention and Behavioral Health, United States v. City of Portland, 3:12-cv-02265-SI
Dear Ms. Osoinach:
This letter provides technical assistance concerning crisis intervention and behavioral health policies, practices, and training of both the Portland Police Bureau (PPB) and the Bureau of Emergency Communications (BOEC). This letter follows up on our visit to PPB on June 23­ 24, 2015, conducted with counsel for the Department of Justice (DOJ) and our expert consultant Mark R. Munetz, M.D.1 While this letter provides technical assistance intended to assist the City of Portland (the City) in its efforts to implement certain terms of our Settlement Agreement in the above-listed case, this letter is not intended to cover all aspects of the City’s obligations concerning crisis intervention and behavioral health as provided by our Settlement Agreement, nor is this letter intended to serve as a compliance review of such obligations. We are providing our compliance assessment separately from this letter.
As you know, the parties engaged in a discussion on May 12, 2015 with counsel for the City and PPB concerning our initial comments on PPB’s draft policies related to crisis intervention and behavioral health. Both Dr. Munetz and Amy Watson, Ph.D., a member of the COCL team, attended the meeting by phone and previously concurred on the written comments provided. At that meeting, the City invited Dr. Munetz to meet with members of PPB’s Behavioral Health Unit (BHU) and related community partners for an overview of the current structure of PPB’s crisis intervention and behavioral health response program. We agreed. In anticipation of our June visit, PPB then provided us copies of the following materials: crisis intervention training lesson plans for courses taught during the 40 hours of training provided to all PPB patrol offices; enhanced crisis intervention training lesson plans and course agenda; as
1 Dr. Mark Munetz serves as the Margaret Clark Morgan Foundation Endowed Chair in Psychiatry at the Northeast Ohio Medical University. He was a contributing author to the Crisis Intervention Team Core Elements, published by the University of Memphis in September 2007 (available at the following website: http://www.cit.memphis.edu/information_files/CoreElements.pdf). Dr. Munetz also serves on the Board of Directors of CIT International, a non-profit membership organization whose primary purpose is to facilitate understanding, development and implementation of Crisis Intervention Team (CIT) programs throughout the United States and in other nations worldwide in order to promote and support collaborative efforts to create and sustain more effective interactions among law enforcement, mental health care providers, individuals with mental illness, their families and communities, and also to reduce the stigma of mental illness. See http://citinternational.org/.
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well as BOEC’s Mental Health Reference Guide. During our meetings, PPB provided us with a report titled “2014 Enhanced Crisis Intervention Training” dated May 12, 2015 (“2014 ECIT Training Report”), which PPB provided during his visit.
During the June meetings, Dr. Munetz and counsel for DOJ met with members of the Behavioral Health Unit (Lt. Tashia Hager and Officer Amy Bruner-Dehnert), members of the training division (Dr. Liesbeth Gerritsen and Sgt. Troy King), Project Respond staff and Behavioral Health Response Team (BHRT) members, BOEC training and operations staff, several ECIT officers (including Dr. Munetz’s participation in an ECIT ride along), the Behavior Health Unit Advisory Committee (BHUAC) Chairperson and observation of a BHUAC meeting, Multnomah County mental health staff involved with diversion programs, and PPB command staff. Dr. Munetz also participated in a ride along with a patrol officer who had received the 40 hours of crisis intervention training required for all PPB officers (but not ECIT training). Finally, Dr. Munetz met with members of the Mental Health and Crisis Response Subcommittee of the Community Oversight Advisory Board (COAB).
Based upon the above review of materials and information received before and during our meetings, DOJ, in consultation with Dr. Munetz, provides the following technical assistance:
1. PPB should change terminology of “CIT” to refer to Crisis Intervention Training instead of PPB’s specialized crisis “Team.”
Throughout our meetings and as provided in the public BHU pamphlet, PPB uses the acronym “CIT” to mean “crisis intervention training,” which provides all PPB officers 40 hours of training during the Basic and Advanced police academies, as well as updates during annual inservice training. And, the term “ECIT” as used by PPB refers to its “Enhanced Crisis Intervention Team” of officers who have volunteered to receive an extra 40 hours of training, and, in addition to their assigned duties, serve as specialized responders to situations involving mental illness or a behavioral health crisis.
The term “CIT” as used by PPB to refer to training lends confusion to who actually serves in the specialized capacity as PPB’s crisis intervention team. Nationally, the “CIT” abbreviation as used by mental health and law enforcement communities refers to the Crisis Intervention Team of volunteer officers, for which PPB has ascribed to its ECIT officers. We commend PPB for continuing to require that all PPB officers receive 40 hours of basic crisis intervention training, and we take no exception to PPB’s preference to refer to their specialized team of responders as ECIT officers. However, to further boost the specialized status of these ECIT officers, and to clarify any confusion by BOEC dispatch when members of the public request a “CIT” officer or an officer to provide crisis assistance, the initial 40-hour crisis intervention training that all officers receive should be renamed. A course title for the academy trainings such as “Behavioral Health Training” prevents conflating such training with the team of ECIT officers, who form PPB’s crisis intervention team. And, as we further describe below, the suggested name change for basic crisis-trained officers should assist to distinguish the specialized ECIT officers in dispatch. BOEC call takers and dispatchers should be trained to dispatch an ECIT officer when a member of the public requests the assistance of a “CIT” or “crisis” officer.
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2. Public Recognition of ECIT officers as a specialized response team.
As we further note in this letter, ECIT officers are PPB’s specialized response for mental health related calls. Not only have ECIT officers volunteered to serve in this capacity, one of the foundations of a CIT program is that such self-selection process attracts officers with the desire, interest, and personality to match the unique skills necessary for communication and engagement with persons in a behavioral health crisis or with a mental illness. It is important for the public to recognize such officers as being distinguished from patrol officers without such enhanced training and experience. An important part of the CIT tradition is that this specialized team of officers can be identified by a pin on their uniform (there are best pin contests at every CIT International conference), and consumers and family members learn to look for an officer wearing a CIT pin. However, we also recognize that pins may not stay secure on a uniform, and an additional option is to develop a unique uniform patch for ECIT officers. One option for further developing relationships with consumers and family members would be to invite them to submit designs for an ECIT pin and patch.
3. PPB should expand ECIT Training to include additional community partners.
While we provide technical assistance concerning training in this section, it is with the caveat that neither DOJ nor Dr. Munetz has observed the current crisis intervention training nor the ECIT training. We look forward to observing the training at the next available opportunity. For the purposes of this letter, we provide guidance on the 40 hours of ECIT training based on the materials received (including the 2014 ECIT training report), and our June meetings with PPB and BOEC personnel. As mentioned this course is an additional 40 hours of training that builds upon the 40 hours of crisis intervention training that all PPB officers receive in the Basic and Advanced academy trainings. While those academy trainings should be considered as a foundation on which to build, officers in an ECIT class may not remember all of the content from the academy trainings and may benefit from some review of critical basic material. Even with the annual in-service refresher training, many years may have elapsed since some of the ECIT volunteer officers took the academy training. ECIT training should include foundational information as well as more sophisticated topics, such as field engagement with consumers, family members, providers, and the general public.
The ECIT-training consumer and family panels, and presentations on peer recovery and early assessment of psychosis (EASA) all appear encouraging. However, we currently do not have enough information to assess these presentations and we look forward to observation of the training to provide further guidance on these.
We recommend the following areas for improvement to conform PPB’s ECIT training to best practices:
 ECIT Training should reflect a community partnership throughout the agenda.
o While a consumer-and-family panel is an important component of the training, there appears to be little exposure to the mental health community during the classroom component. During our June meetings with PPB and community partners, we were informed that a variety of community stakeholders in the professional community as well as consumers and family
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members taught the ECIT class. From the training plan provided by PPB, the sessions taught by mental health professionals outside of PPB primarily appear only on the first day of training: the peer-and-family panels, forensic diversion programs available within Multnomah County, the EASA program, a presentation from NAMI, suicide intervention, and mental status indicators (presented on day two by a psychiatric nurse from Project Respond). The ECIT training report also indicates that Dr. Liesbeth Gerritsen was the lead or co-lead on much of the training.
o While it is commendable that PPB employs a full-time mental health professional with the experience and knowledge that Dr. Gerritsen possesses, the inclusion of multiple mental health professionals (psychiatrists, psychologists, social workers, nurses) presenting throughout the week-long training course encourages the development of community and inter­ governmental partnerships. Certainly, many topics currently included in the training can be co-presented (either formally or informally) by a communitybased mental health professional or government agency provider, and a PPB instructor, such as:
 History of mental health treatment;  ECIT community resources;  Mental health risk assessment;  BOEC dispatch protocols for mental health calls;  Crisis response (all sessions on day 3 of training); and  All of the scenario based role playing.
 Provide a full day for site visits and ride-along with a community treatment provider.
o Currently the ECIT training plan provides 1.5 hours for a site visit, which appears to allow only time for one site visit by each officer. Many CIT courses include two half days or a full day for site visits, and we recommend expanding this aspect of PPB’s training. We also suggest a ride-along with an Intensive Case Manager (ICM) or an Assertive Community Treatment (ACT) team member. Such outreach during training instills a key component of the specialized knowledge that ECIT officers can bring to bear in their work and fosters relationships with mental health providers and consumers.
 Crisis Response Resource (Day 3 of ECIT Training) should focus on engagement and de-escalation.
o A review of the lesson plan for day three and discussion with Sgt. King indicates that the teaching philosophy on engagement and communication for ECIT offices is based on practices of a crisis negotiation team (CNT). While CNT tactics may incorporate parallel issues also seen in behavioral crisis response or response to persons with mental illness, the focus of CIT training should be on engagement and de-escalation, while acknowledging that officer and community safety always comes first. Incorporating an outside mental health professional (e.g., someone from Project Respond) throughout the
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lessons for this day will provide a mental health perspective on de-escalation as the sessions are taught.
o As we further discuss below in regards to coverage of mental health calls, to conform with CIT core elements PPB should train ECIT officers as first responders and they should generally serve as the primary officer on the scene. They should generally not be supporting officers, as is typical for CNT officers or K-9 officers (as noted in the BHU overview in the CIT training lesson plans).
 Continue to keep role-playing scenarios updated, include community mental health providers, and include several rounds of officers in the exercise.
o While the six ECIT scenarios reviewed in 2014 ECIT training report appear well-considered for the type of encounters and issues officers may face in the field, we recommend continually updating these scenarios based on recent experiences of ECIT officers. And, as provided above, incorporating community mental health providers into these role-playing scenarios will further the partnerships necessary for successful outcomes.
The training report notes that each scenario is handled by a single pair of officers; the reviews of the scenarios indicate that some were not handled as the instructors hoped. To increase officer involvement in the training, we recommend each scenario seek participation by several successive pairs of officers, such that after an initial intervention by the first pair, the scenario is stopped and “freeze framed” and then a second pair pick up where the first left off. This can continue for three or four pair of officers, until the situation resolves safely. Safe resolution almost always means the individual agreeing to leave the scene and be transported to a treatment facility. Trainers can coach role-players so the situation doesn’t resolve until several groups have rotated through managing the situation.
 Include additional topics in the ECIT Training.
o Include a “Mental Health 101” overview as described above.
o Review CIT core elements and the “Memphis Model.”2 See http://www.cit.memphis.edu/information_files/CoreElements.pdf
o Incorporate how to communicate with individuals in the midst of psychosis, using hearing distressing voices training. While the 40 hours of basic crisis training for all officers incorporates a lesson plan created by Dr. Pat Deegan as provided by the National Empowerment Center, Inc., for hearing voices
2 To assist in further development of a Memphis Model CIT program, BHU, training staff, and ECIT officers should be encouraged to attend the CIT International Conference, to the extent possible, April 25-27, 2016, in Chicago. See http://citconferences.org/.
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that are distressing, this lesson does not appear in the ECIT lesson plan. ECIT training should include a review of this curriculum or incorporating this type of issue in scenario-based role-playing to help sensitize officers to what it is like to hear voices while in an encounter with law enforcement, and how to communicate with individuals in the midst of psychosis.
o Enhanced focus on verbal de-escalation. The day 3 lesson plan on the various aspects and approaches to verbal de-escalation should also include a community mental health provider as a co-presenter.
4. Continue Improvement of Selection Process and Increase Number of ECIT Officers.
We commend PPB for developing a current roster of about 62 active ECIT officers who have volunteered to take on this additional duty. And, we are encouraged to learn that another class of 25 officers is expected to take ECIT training later this year. The volunteer nature of such a specialized team is a key core element to the Memphis Model. We did not receive assurances in the materials provided, or during our interviews, that PPB currently utilizes an application and interview/screening process for the selection of the officers. We request that PPB provide us such materials or, if they do not yet exist, we recommend that PPB develop such a process, as provided by the Settlement Agreement. PPB must seek the advice of the BHUAC for criteria defining the qualification, selection, and ongoing participation of ECIT officers.
Based on information we received during our meetings, ECIT officers account for 17.9% of actual officers in patrol operations as of June 18, 2015. Based on interviews during our meetings, it was clear that the numbers of ECIT officers must increase to ensure adequate 24/7 coverage in all three precincts. While PPB began tracking the number of ECIT officers directly dispatched to calls, and the number of calls where ECIT officers participated in any way based on their training, neither PPB nor BOEC currently tracks data to know how many mental health related calls are handled through dispatch or identified by non-ECIT officers in the field. These data are essential to know how many ECIT officers are needed to ensure 24/7 coverage throughout Portland. As described below, BOEC must change some of its training and protocols to capture such data. While the Memphis Model originally proposed the team of specialized officers for crisis response make up 20-25% of the patrol force, the goal is to have an adequate number of officers to ensure coverage at all times. The 20-25% range is likely an underestimate for PPB given the number of persons with mental illness in Multnomah County (10,062 as of 20113), the number of suicide calls received by BOEC (1200 in 20114) and the large homeless population in Portland (as much as 25% of whom suffer from mental illness5). While the City is accumulating data about the number of mental health-related calls, we recommend setting the goal that ECIT compose 30% of patrol officers. To obtain that goal, a single ECIT class per year is probably not adequate. We suggest planning for two ECIT training classes in 2016, and each year thereafter until PPB reaches that goal, or data indicates PPB has sufficient ECIT officers to meet the needs of mental health-related calls.
3 See PPB Report on Police Interactions with Persons in Mental Health Crisis, March 21, 2012, pages 7-8,
 accessible at https://www.portlandoregon.gov/police/article/440249. 
 4 Id. at 4,14. 
 5 Id. at 11 (citing the National Coalition for the Homeless, 2009). 

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5. Expand BOEC’s coding of mental health calls and ECIT dispatch protocol.
The Memphis model includes the following core elements regarding dispatch and coverage of mental health calls:
 Training call takers and dispatchers on the crisis intervention team program, identifying calls that may involve mental illness, and soliciting information from the caller that will help the responding officer;
 Dispatching the nearest ECIT officer to respond to all such calls; and  ECIT officers assess the situation and when appropriate take control of the scene.
PPB’s current model does not align with these core elements because of BOEC’s current training and protocols for coding mental health calls, the existing ECIT dispatch protocol, and, in part, because of PPB’s approach to ECIT.
The current BOEC dispatch protocol requires dispatching of an ECIT officer only if the call has a mental health component and one of more of the following is present:
o The subject is violent o The subject has a weapon o The subject is threatening to jump from a bridge or structure or to
impede/obstruct any vehicular traffic o The call is at a known mental health facility o Upon request of the responding officer o Upon request of a citizen (any caller)
Moreover, BOEC does not use a code that tracks all calls with a mental health component. BOEC uses the “ECIT” code to track dispatch of the above list of seven types of calls. BOEC codes other calls only a single code that is more specific to the situation (e.g., welfare check, disturbance, etc.). But, BOEC does not have an additional means of coding all calls, regardless of type, that also have a mental health component. For these other calls, BOEC dispatches a regular patrol officer regardless of whether there is a mental health-related component to the situation. There is currently no reliable way to determine how many of these other coded situations involve a mental health component. BOEC codes suicide calls separately. Based on ECIT reports received and tracked by the BHU between February 15, 2015 and May 23, 2015, out of the 267 calls in which ECIT officers participated in any way based on their crisis training, ECIT secondarily assisted on 42 calls (15.7 %) coded as suicide and 68 calls (25.5%) coded as welfare check. ECIT officers also assisted with 23 calls (8.6%) coded as disturbance, 10 calls (3.7%) coded as assist, and 61 calls (22.8%) coded as “other,” which includes but is not limited to: area checks, “domestic,” and vandalism.6
6 Appendix D in the 2014 ECIT report contains the one page report completed by ECIT officers. One of its fields is called “Mental health crisis response per directive 250.20”. We recommend some changes to this form to help in the data collection effort. First, providing the same box for custody/arrest conflates mental health custody (emergency commitment) with arrest. Also, transport to treatment, either voluntary or involuntary is an important disposition to capture, along with arrest. Also, referral to BHRT should be a possible disposition. Finally, the term “De-escalate” may mean “resolved at the scene”, which conflates a technique with an outcome.
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In other words, 204 of the 267 (76.4%) of ECIT reports received between February and May 2015, in which the ECIT officer participated in the call based on their crisis training, involved a call with a mental health component outside of the above listed protocol, and ECIT was directly dispatched to 63 calls (23.6%) based on the existing protocol provided above. But, we have no way of knowing how many more calls to which BOEC dispatched non-ECIT patrol officers involved a mental health component. At bottom, BOEC must expand their call taker training and protocol to allow coding for all mental health related calls, in order for PPB to properly collect and assess data to assist further discussion on the ECIT dispatch protocol.
Based on our meetings we understand that PPB officers have an option of adding a study code after completing their response to call to indicate whether there was a mental health component to the call. However, both PPB and BOEC agree that such data are not reliable, and currently cannot be compared to BOEC data. Instead if BOEC adds a modifier code that would indicate whether a mental health component was known at the time of dispatch, either to compare with the study codes, or as independent data, an estimate of the number of calls involving a mental health component could be achieved.
Furthermore, PPB currently trains officers that ECIT officers should only be primary responders on the limited set of higher risk mental health calls as provided in the current BOEC protocol, unless such support is requested by the responding officer, or upon request of a citizen. Such reluctance to expand the dispatch of ECIT officers is currently based on concerns, in part, that the number of lower risk mental health related calls would overwhelm the ECIT program, impeding the ability of ECIT to respond to the higher risk calls, and causing patrol officers to dump calls. PPB does not have sufficient data to verify these concerns. PPB should increase the size of the ECIT program to the recommended 30%, and reassess after such data is accumulated and analyzed. And, the initial ECIT reports noted above indicate that PPB utilizes ECIT officers on a broader range of calls than what is provided for in the current dispatch protocol. Data on the number and type of all mental health-related calls is critically needed to inform this discussion. In the interim (until such data is collected and assessed), at the very least, PPB and BOEC should include all suicide calls to the ECIT protocol, as those are known mental health related calls. In addition, we recommend that patrol officers responding to a call also be required to call for an available ECIT officer to respond (“secondary dispatch”) where there in a mental health component and one of the following exists:
 Mental Health Disorders  Traumatic incidents  Sudden deaths  Attempted suicides  Medical assists/Well-being checks  Breach of Peace/disorderly conduct  Trespassing/refusing to leave property
PPB should hold patrol officers accountable for appropriately exercising this secondary dispatch function, and during meetings with the DOJ appeared amenable to such an accountability system.
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Finally, PBB’s current ECIT philosophy is to utilize such officers more as secondary responders, back-up, and/or coaches to patrol officers rather than to serve as primary responders at the scene. Such philosophy is expressed in the current dispatch protocol as well as the training materials. While certainly ECIT officers should make an assessment to determine if the initial responding officer is handling a situation well, and if so, to allow that officer to continue, the general CIT philosophy under the Memphis Model provides for the specialized crisis intervention team officer to typically assume overall charge of the scene. This philosophy is based upon the facts that: (1) this is a cadre of specialized officers who are interested in this work; (2) their dispatch to more mental health-related calls provides them increased exposure and experience beyond that of patrol officers; and (3) their relationships with the mental health community (including both providers and consumers) are key to rapport and trust-building at the scene.
6. BHU should enhance its oversight of the ECIT program.
We commend PPB on the development and dedication of the Behavioral Health Unit, and its coordination with the BHUAC and other community partners. Furthermore, the three BHRT units are a great resource for Portland. And, we are pleased that PPB provides the funding for three Cascadia (Project Respond) employees to work full time as co-responders with the BHU officers to follow a case load of high risk individuals. The co-responder model is an excellent way to work with complex, high risk, but not committable individuals. We further commend PPB for providing patrol officers the ability to make case referrals to BHU for follow-up by a BHRT, and encouraged to hear that both ECIT and non-ECIT officers are making such referrals. We are also encouraged that the BHU is meeting regularly with community mental health providers for further collaboration. We recommend that such collaboration provide the ability for referrals to be made both from the BHU to community providers and vice versa. We are further encouraged to learn that BHRT training includes trauma informed care, and that the BHU is considering such training for ECIT officers.
BHU will have to better define its oversight of the ECIT officers, however. Currently, ECIT officers report to the chain of command of their assigned precinct. However, the BHU lieutenant (assigned to the Central Precinct) and ultimately the Central Precinct commander must oversee and coordinate the ECIT officers. See Settlement Agreement ¶ 91. To ensure such oversight, the CIT coordinator, her sergeant, Lt. Hager, and, as necessary, the Central Precinct Commander must regularly involve themselves in supervision of ECIT officers, including, but not limited to: reviewing ECIT reports, identifying and addressing concerns as needed, and taking part in training or discipline related issues. If BHU is engaged in such oversight, it is not currently memorialized in writing. We recommend that BHU memorialize its role in review and oversight of ECIT officers to ensure all involved clearly understand the set expectations. We will continue to monitor compliance with the relevant provisions of the Settlement Agreement, and will reassess the adequacy of BHU’s oversight upon memorialization of its role in overseeing the ECIT team. Further, PPB should evaluate whether a CIT Coordinator of the rank of Officer, rather than as a Sergeant, impacts the ability to conduct such review and oversight.
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7. PPB should revise policies and procedures concerning disengagement and delaying custody.

Current policies and procedures provide that officers may choose to actually leave a scene even if the individual is at risk of harming self or others. Such cases pose great liability to PPB and present an inappropriate level of risk of harm to the individual or others in the community. While there are options other than immediate confrontation or leaving, such options require time, patience, and continued efforts at finding a way to engage an individual. And, if alcohol or controlled substances are involved, time to sober up may be necessary. If it is truly an emotional storm, such crises dissipate over time. The challenge with waiting is the drain on resources and emotions of officers involved. One option is to not only require input from the supervising sergeant prior to making the decision to disengage, but also include consultation with a mental health professional (i.e., Project Respond) before disengaging (which would include delaying custody to the point of leaving a potentially dangerous scene).7 If PPB adopts such an approach, we recommend that PPB collect comprehensive outcome data from any call ending with disengagement, for analysis and evaluation in determining whether such policies should be further revised.

We hope the assistance provided in this letter is helpful as you continue to grow your ECIT program. We look forward to discussing any questions you may have about the guidance and recommendations provided in this letter.

Sincerely,

BILLY J. WILLIAMS Acting United States Attorney District of Oregon

JUDY PRESTON Acting Chief Special Litigation Section Civil Rights Division

LAURA COON Special Counsel

/s/ Adrian Brown ADRIAN L. BROWN Assistant U.S. Attorney

/s/ R. Jonas Geissler R. JONAS GEISSLER Senior Trial Attorney

/s/ Brian Buehler BRIAN BUEHLER Trial Attorney

7 In discussions with the DOJ, PPB and the City have expressed their amenability to implementing policies requiring officers to consult with a mental health professional before disengaging from situations where an individual presents a risk of harm to self or others. Ultimately, PPB will resubmit its policies for DOJ’s review, comment, and compliance assessment.
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cc: Shauna Curphey, Esq. Ashlee Albies, Esq. Anil Karia, Esq. Kathleen Sadaat Dennis Rosenbaum, Ph.D. Amy Watson, Ph.D. Tom Christoff via email
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 U.S. Department of Justice Civil Rights Division

JCP:LLC:RJG:BDB DJ 207-61-1

Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530
February 26, 2016

Via email
Ellen Osoinach, Deputy City Attorney Office of the City Attorney 1221 SW 4th Avenue, Ste 430 Portland, OR 97204
RE: In-Service Training, United States v. City of Portland, 3:12-cv-02265-SI
Dear Ms. Osoinach:
We write to provide the City and the Portland Police Bureau (“PPB”) with technical assistance for compliance with the training provisions of the Settlement Agreement contained in Paragraphs 78 through 87 of that Agreement.1 This guidance is based on our joint observations of the PPB’s in-service training with our police practices consultant and the Compliance Officer Community Liaison (“COCL”). The training lasted one week and was part of the annual inservice training that all current PPB officers attended on a rotating basis in 2015. We thank PPB and the City for making the training sessions open to our observations, and for frank, open dialogue with Chief Larry O’Dea, Assistant Chief Mike Krebs, and Lieutenant Jeff Bell during our on-site visit.
The Training Facility
The City has provided superior training facilities to PPB. We applaud this effort. As COCL observed, and we agree, the training facility is impressive. The existing structure was gutted inside and designed to meet the needs of the PPB training academy. For action scenarios, the academy has a scenario village comprised of six real-size buildings, including two businesses, apartments, and a single-family home with an attic and garage. Both sides of the block have buildings, allowing for surveillance from across the street, alleys, etc. Outside the training academy building, there are roads and cars that allow officers to practice the pursuit techniques. The building has classrooms, gymnasiums, and two indoor ranges, used for firearms practice and qualification.

1 This letter is not intended to serve as a compliance assessment at this point in time. We will, however, rely on our observations of PPB’s in-service among other data in our forthcoming two-year compliance assessment.
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We understand that some COAB members or community members have expressed reservations about entry into PPB facilities. Also, we observe that from the exterior the training facility is non-descript and that the facility is located remotely. The confluence of these characteristics serves to obscure from the public the good work that occurs within the walls of PPB’s superior training facility.
We encourage PPB to make the training facility open to public observation when appropriate and safe. In part, PPB can help bridge the gap between the PPB and the public at large by demonstrating PPB’s dedication to training and making transparent what happens inside the training academy.
It is our understanding that all persons, including our own observers and all PPB officers up to and including the Chief, are subject to pat-down search when entering the “safe areas” of the facility, e.g., scenario rooms. This is a necessary safety precaution. Even public observers, therefore, should be aware of this necessity and plan accordingly.
Us vs. Them
As an overarching concern, we observed at several points PPB instructors reinforced a sense of PPB being on the opposite side of the public whom they police and serve. We do not attribute this us-vs.-them mentality to any malicious motivation. Rather, we note the continued need for a shift in the mindset of instruction, i.e., PPB is comprised of the community, not separate from it. For example, the legal update portion that we witnessed included many references to the City’s defenses to civil claims filed against the City for PPB conduct. PPB could better have addressed these as teachable events both in the application of current policy and the impact on the community.
Before finalizing its next round of training, we recommend that PPB re-evaluate all its training materials to eliminate the us-vs.-them mentality. For example, PPB should minimize uses of military imagery, e.g., the photos used in active-shooter training, which unwittingly reinforces the “us” perception. Additionally, we suggest that PPB seek significantly greater inclusion of community volunteers in its 2016 in-service training. PPB should include varied community volunteers and people with lived experience in many of its scenarios. Moreover, PPB instructors spent significant time using stories from its officers’ or prosecutors’ perspective to convey material. Likewise, PPB could use community members’ perspectives to convey experiences with law enforcement to bridge the gap between PPB and the community.
Training Evaluations
Settlement Agreement paragraph 80 requires that PPB implement data collection and analysis regarding the effectiveness of training. Specifically, these data must include student satisfaction, learning, and application. PPB previously has asserted that it is applying the Kirkpatrick model for data collection, analysis, and improvement of training. However, we did not witness the necessary data collection to feed into this model.
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For the observed in-service training, PPB did not use written, individually identifiable, competency-based quizzes of policy or tactics.2 For one class, PPB instructors gave an eightquestion use-of-force policy quiz. However, the quizzes were anonymous. Theoretically, PPB could use the results to evaluate instructors, but not students. Similarly, PPB distributed an anonymous survey of the entire training. Strangely, though, this anonymous survey points out that it could be subject to a public records request. That admonition seems intended to discourage criticism. Such comments are not typical or appropriate for this type of survey research. For some practicum instruction, PPB required that all class members successfully complete certain exercises, e.g., firearm qualification. For other exercises, however, PPB did not include any mechanisms or measures to assure or measure students’ understanding or competence. For example, PPB did not check whether most students properly applied tourniquets and therefore did not determine whether students learned the material. In previous reports, the COCL has recommended a more rigorous evaluation plan for training. We reiterate the importance of data collection and analysis of training.
Policy Integration
PPB successfully wove policy/law (e.g. dealing with persons in mental health crisis, deescalation) into the technical skills training in many places (e.g. in the defensive tactics training). However, this was not always the case. Significantly, in Taser training, the classroom instruction breezed through an abridged version of the policy. The instructor noted that students had heard the Taser policy in the recorded legal training. However, that instructor and the slides used in the prior legal instruction did not provide important exclusions on Taser use or other elements of the policy. The Taser classroom instruction should have fully integrated the policy.
Police training tends to be compartmentalized: e.g. now we have a law class, now we have a use of force class, now we will learn tactical skills, etc. Scenario training (which PPB did well, see below) tends to be the only place tactics, law and policy come together. By including law/policy in technical skills training, you can re-enforce law/policy issues, creating a “muscle memory” for the policy when officers need to use the technical skills on the street. PPB should explore additional places in training where these can be brought together. As much as possible, technical skills should be trained in the context of the policy governing those skills.
Tactical Emergency Casualty Care - Tourniquet
Commendably, PPB provided all of its sworn members with Tactical Emergency Casualty Care (“TECC”) training during the 2015 in-service.3 Specifically, this training focused
2 PPB has not implemented comprehensive training evaluations to its in-service. LT Bell indicated PPB is introducing this element to recruit training, first.
3 For the final week of training, the instructor who normally teaches this class, a member of Portland Fire and Rescue and a combat veteran, was unavailable. PPB used a video recording of him teaching. Although a live instructor is preferred, it was a reasonable compromise and the PPB instructors in the room helped keep the class engaged by pausing, commenting, and explaining.
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on the use of particular tourniquets purchased by the PPB and which officers may elect to carry. These particular tourniquets are comprised of a nylon strap, hoop-and-loop connector, and a plastic latch that officers wind to tighten and constrict blood flow. PPB’s instructors reported members having saved several lives, including civilians, through the recent use of these tourniquets in Portland. PPB should widely publicize this good work.
Even with the reported lifesaving results of PPB’s TECC use, there was room for improvement in the training, specifically:
 Policy Integration: o PPB offered a cursory review of Policy 620.50, the duty to render emergency medical aid. However, the instructor merely commented “nothing new” and did not even give enough time for the class to read the policy projected on a screen. PPB made no mention of giving medical aid to an offender (e.g., an offender who has been shot by a member) as required by Settlement Agreement 84(a)(iii). Likewise, we witnessed traffic stop scenarios that did not address this need as discussed herein. We recommend integrating the policy in the training, in addition to ensuring that training comports with the explicit requirements of the Settlement Agreement.
 Decreasing the us-vs.-them mindset o Instructors noted that members may use the tourniquet on both department members and civilians. However, PPB could have better emphasized this point by using a scenario with civilian volunteers or members dressed as civilians. Officers performed all practice applications on themselves or their partners. o COCL also noted an issue with the lowlight partner rescue scenario: Officers paired up, and the rescuers went into a different room. The rescue officer had to come into the darkened room, find his/her partner, and discover and treat the wound. As it played out, if a rescue officer found a different injured person, the officer moved on without rendering aid. This has the effect of training officers to not render aid unless the subject is their partner/police. o PPB used numerous military combat photos. Given that the TECC tourniquet technology originated with military applications, these combat photos may be more readily available. However, PPB should endeavor to de-militarize its references wherever possible.
 Assessing effectiveness of training o Instructors conducted a verbal group “quiz” after class and also did a quick verbal survey asking whether the officers felt they had learned the material and whether they were confident in their ability to use the techniques. This did not produce the data necessary for the Settlement Agreement, i.e., individual officer learning, instructor assessment, and efficacy. Nor could a verbal group quiz produce reliable data. Students are unlikely to admit to a lack of understanding when with their peers. o Instructors asked members to send them a note/email when they use TECC skills. PPB could better assess efficacy of training by more formal recordkeeping of TECC applications (especially when PPB members render aid to community members).
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Force policy
PPB will necessarily have to revise its 2016 force policy training to comport with PPB’s revised force policies, on which the COAB is currently working. As PPB revises its force policy training, it should include certain changes from the training that we observed under the current policy:
 PPB instructs officers that the Ninth Circuit Court of Appeals uses the terms “immediate” and “imminent” interchangeably, yet the PPB went to great length to attempt to distinguish these terms. This was counterproductive. Not only was the lesson unclear, it tried to instruct on a meaningless distinction.
 PPB provided officers with a Use of Force “hard card” that officers can carry with them. The instructor noted that the card itself is already out-of-date. DOJ found the card confusing. COCL found the card should be presented in a summary fashion, rather than block text.
 At one point, the instructor expressed a desire to hurry through a few points because it was just review. Reinforcing policy is as important as reinforcing technical skills.
 The “assessment” form after the use-of-force training was a fill-in-the-blank test, but officers were not required to identify themselves. This may serve as an assessment of the instructor, but not a test of the students.
Firearms
PPB dedicated significant resources and time from its 40-hour in-service training block to firearms training, but that training needs more focus on policy understanding, integration, and decision making skills. PPB had skilled firearms instructors and a well equipped firing range for its firearms instruction and qualification.4 Firearm training began with a brief discussion about the law and policy. COCL and DOJ believe PPB should have dedicated more time here to thoroughly reinforce the law and policy on deadly force and opportunities to de-escalate. PPB provided no explanation during the range training regarding why one would shoot in certain combinations of fire (e.g. 3 rounds, 2 rounds), nor when to stop shooting, nor the reason for choosing certain rounds (e.g., bird shot vs. buck shot), nor when one may need to transition to a lower level of force. PPB could and should re-enforce the concepts of de-escalation and rendering aid to a subject during the firearms training, rather than focusing solely on technical skills. As much as possible, PPB should train on technical skills in the context of the policy governing those skills.

4

On the date of review by DOJ and COCL, the usual primary firearms instructor had an

emergency that called him away. Two other instructors, who reportedly had not taught the

firearms course before, stepped in. Lieutenant Bell indicated his belief that the usual instructor

includes policy and law into the range skills training.

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Scenario Training
PPB scenario training demonstrated a high point in the week’s in-service training, but would still benefit from greater policy integration and community inclusion, where appropriate. Scenario training is an effective means of applying skills and policy in a controlled environment. Any civilian volunteers would have to comport themselves with this requirement.
Traffic Stop/Deadly Force Scenario
One of the scenarios we observed included the following: Officers stop a car for a traffic violation, subject jumps out of the car, officers order the subject back into the vehicle, subject reaches back into car, comes out pointing a gun, and officers fire, striking the subject, who goes down and lies motionless. Officers continue to stay behind vehicles for cover, guns drawn, awaiting arrival of supervisors who have a ballistic shield. With the shield, officers move in and ensure the subject is disarmed. Some officers conducting the scenario requested that an ambulance stage nearby.
Both COCL and DOJ expressed to PPB concern about the long delay in the scenario before officers moved in on the subject after officers shot him. It appeared officers had neutralized the threat. In the scenario, police may have justifiably shot the person. However, there appeared to be an unreasonable delay in rendering aid while officers waited behind the cars, guns pointed at a motionless “victim.” COCL and DOJ discussed this scenario with Chief O’Dea. Chief O’Dea informed us that this response, i.e., awaiting a supervisor to respond with a tactical shield, is an improvement over PPB’s prior practice. Previously, this scenario would have required a SWAT callout (possibly a 45-minute response), because only SWAT had ballistic shields and PPB policy was to not approach a motionless offender without protection if the subject’s firearm was still within his/her reach. PPB made a commitment to address concerns with rendering aid in a timely fashion. Thus, supervisors now carry shields in their vehicles, drastically cutting the response time. While that financial and operational commitment is laudable, the policy that drove it is a concern and may not be in compliance with the Settlement Agreement’s requirement to render aid after a use of force. See Settlement Agreement Paragraph 84(a)(iii).
Officer safety is a key concern. But, awaiting the shield did not completely mitigate the risk that the officer would have had by rendering aid immediately. COCL and DOJ’s police practices consultant noted that the response with the shield did little to protect the officers from the perceived threat of the apparently unconscious victim because the shield was not protecting all of the officers. In other words, even after waiting for the shield, some of the officers were as exposed as they would have been if they immediately rendered aid. PPB should reassess how to timely render aid to a subject against whom force is used and better integrate the policy requirement in future scenarios.
Indoor/Crisis Response Scenarios
PPB did a very good job of integrating classroom instruction and skills exercises in conducting multiple crisis response scenarios in its scenario village. PPB began with classroom
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review of the totality of the circumstances for use-of-force decisions, de-escalation and disengagement with a plan for follow-up. Officers divided into smaller groups for scenarios, performing roles appropriate to their rank as much as possible. One scenario involved an intoxicated, suicidal, armed subject in a house with his brother. Once the non-suicidal brother is safely out of the house, officers have to decide whether disengagement is the best course of action and, having decided it is, how best to accomplish this. Another scenario involved talking a person in crisis out of a confined space. The observed officers took their time and completed the scenarios successfully. The training integrated aspects of Settlement Agreement paragraph 84(a)(i), (ii), and (iv) in both the classroom prep and the roll play. However, paragraph 84(i) requires officer training on ethical decision making and peer intervention, which PPB’s training did not address. PPB could utilize scenarios that have officers arriving as backup for roleplaying officers who are already on-scene (and are behaving in a manner that requires peer intervention) to fulfill this requirement.
Tactics/Rapid Use of Force Decisions
In these rapid-fire scenarios, an officer stands inside a curtained box and a role player enters, forcing a quick decision on what, if any, force to use. The scenarios were: (1) man charging with a knife, (2) man stating he likes fighting police as he aggressively starts closing in on the officer; if the officer uses pepper spray it doesn’t work on the subject and the officer needs to switch to the Taser; and (3) man rushes up to the officer and turns out to be a police officer chasing someone.
The only “non threat” was a fellow police officer, not a civilian. That portrayal, in the absence of a civilian non-threat reinforced the us-vs.-them mindset. Changing or adding the “no threat/no force” scenario so that it is a community member rather than a police officer would be an effective way to combat that mindset. Force situations sometimes arise from non-cooperative, non-compliant subjects, so training scenarios should also give attention to the communication skills and social proficiencies necessary to persuade individuals to comply with their requests and to prevent the escalation of conflict. COCL opines that procedural justice training would also help in these situations.
Defensive Tactics
PPB did a much better job at integrating policy and law issues at this practical exercise of defensive tactics in the academy’s mat rooms. For instance, instructors:
 explained officers’ use of force as an exercise of government power;  noted which tactics trigger the force reporting requirement;  wove into their discussion non-escalation and de-escalation (e.g., if the subject is
cooperative, don’t use these tactics—just handcuff him/her);  discussed the issue of officer precipitation of force (e.g., if you reach in a person’s car
with a knife to cut the seatbelt because the person won’t unhook his seatbelt, you have introduced the knife into the scenario, so if the subject now tries to take your knife, are you really justified in shooting, or should you have just not reached in with the knife in the first place?).
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Homicide Case Presentation
PPB presented a lengthy, interesting narrative of a homicide investigation and prosecution, but it consumed valuable training time for little effect. PPB should better allocate its valuable training time.
Electronic Control Weapons PPB emphasized technical proficiency of ECW applications, but poorly integrated policy
and critical decision making. Classroom training on ECW policy was rushed and referred to a prior legal training presentation, which, itself, was incomplete. Instruction needed clearer discussion of issuing warnings prior to deploying an ECW, including the fact that people in mental health crisis may need to be given more time to respond to commands. PPB did not present the full list of exclusions when officers should not use an ECW. Instruction completely omitted mention of the risk of a subject falling after ECW application. There was also no discussion of probe removal or policy requirements for rendering aid for probe removal. COCL observed trainers emphasizing the need to go from “call-to-call” over the need to spend time speaking to subjects in crisis. Training should discuss the applicability of the crisis intervention policy and the Settlement Agreement mandate to call upon specialized units, such as ECIT officers, when the situation permits. PPB has the necessary ECW trainers and could better execute ECW training. Given the specific DOJ finding regarding multiple applications of ECWs, and the recent court finding that an officer had used excessive force in her application of an ECW, PPB should emphasize the importance of ECW training and limitations on its use.
Conclusion Our observation of PPB’s in-service training revealed PPB’s dedication to ongoing
training of officers and many high points, e.g., lives saved with TECC and a focus on safe resolution of crisis events. However, the observed in-service could be improved by eliminating the us-vs.-them mindset and incorporating more thorough policy and decision making integration in the skills proficiency exercises. As COCL noted, improvement of communication skills through in-service training would also assist in PPB’s efforts to minimize force.
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Please let us know if you have any questions regarding this technical assistance. We look forward to continuing to work with PPB on the ongoing implementation of our Settlement Agreement.

BILLY J. WILLIAMS United States Attorney District of Oregon
/s/ Jared Hager JARED HAGER Assistant U.S. Attorney

Sincerely,
/s/ Laura Coon Laura Coon Special Counsel
/s/ Jonas Geissler R. JONAS GEISSLER Senior Trial Attorney BRIAN BUEHLER Trial Attorney

cc: Dennis Rosenbaum, Ph.D. Amy Watson, Ph.D. Kathleen Sadaat Tom Christoff Ashlee Albies, Esq. Shauna Curphey, Esq. Anil Karia, Esq. via email

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