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Tuesday, December 17, 2013

New Police Use of Force Policies Revealed: Cops Can Still Be Disciplined for Bad Decisions

Posted by Denis C. Theriault on Tue, Dec 17, 2013 at 2:58 PM

One of the open questions in the wake of last month's peace deal between Mayor Charlie Hales and the Portland Police Association over federal reforms had been the extent of changes to new use of force and Taser policies drafted earlier this year.

The union quickly told media and its members that there had been significant adjustments to the proposed force policy, though its president, Daryl Turner, wasn't specific. The city, on the other hand, insisted there hadn't been any meaningful policy changes. It also kept mum on details.

Copies of the final policies, obtained by the Mercury this morning—the day before the deal on federal reform and a new union contract head before city council—now explain that seeming disconnect.

Police Chief Mike Reese did agree to make substantial adjustments to the force policy (pdf) he first circulated for review this winter, the documents show. But the overall goal Reese had tried to accomplish—making it clear that officers could be sanctioned not only for using force, but also for any questionable decisions leading up to force—remains intact.

In a bit of finessing, Reese merely moved those provisions out of this winter's draft of the force policy and added them to the bureau's revised"satisfactory performance" policy (PDF). He did the same with provisions warning officers they also could be punished if they routinely make bad tactical decisions.

In this subsection, the Bureau requires that members be capable of, and apply, effective force when necessary. It also sets performance standards for decision making during confrontations, and requires that members use sound tactics and good decision-making during a confrontation and work diligently toward applying, when practical, less force than the maximum allowed by the constitutional standard and minimizing or avoiding force when possible. This subsection also requires members to develop and display over the course of their practice of law enforcement good confrontation and force management skills.

The new force policy now makes a nod to the revised performance policy.

Members should be aware the Bureau’s force policy is more restrictive than the constitutional standard and state law. The Bureau’s policy regarding satisfactory performance during confrontation management (DIR 315.30.1.3) does not modify the standards for use of force contained in this policy.

Why the change?

It gets at a legitimate complaint. The force policy is supposed to govern the immediate act of force, not the tactics that might have precipitated it. That's also what judges and arbitrators have long considered when using constitutional standards to decide when force is reasonable. That constitutional standard remains the bureau's standard. And the upshot is that the bureau still will struggle to do something it's never done: fire a cop solely for a violation of its force policy.

The city's hope, however, is that a tighter performance policy might provide a different tool for punishing officers in force cases. The bureau has attempted some kind of decision-making standard since 2007. But the expectation was always shoehorned awkwardly into its force policy and, thus, diluted.

That flaw was most obvious in the 2010 shooting of Aaron Campbell. The city was forced to reinstate Officer Ron Frashour after an arbitrator decided Frashour reasonably thought Campbell was a threat when he shot him in the back—never mind the cascade of poor tactics and mistakes that put Campbell and Frashour in that position.

Under the newly revised policies, Frashour also could have been explicitly disciplined for his decision making—failing to live up to basic performance standards—giving the bureau another leg to stand on when punishing cops in force incidents gone awry. Because the two concepts are now separated—force and "confrontation management"—cops can now fall short of one or both policies and not have discipline thrown out by arbitrators.

As to whether discipline for a performance violation will be as strong as discipline for a use of force violation? That's unclear. The bureau has not released its draft of a new "discipline matrix" matching ranges of consequences to potential acts of misconduct. That could be a sticking point.

Reese also made one adjustment to his Taser directive (pdf), which urges but does not require a maximum of two stun-gun cycles among other limits. The final policy tells officer to try handcuffing someone between Taser cycles only when "feasible" and safe.

Turner, reached for comment on the final drafts, said only "no comment." The PPA, as part of its deal with the city, agreed not to challenge the new directives. Reese also did not return messages seeking comment left with a spokesman.

The bureau did say that the directives will take effect January 1 and that officers have already been trained on them.

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