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Thursday, August 7, 2014

Citizen Panel Urges More Discipline for Officer Who Pepper-Sprayed Homeless Campers

Posted by Denis C. Theriault on Thu, Aug 7, 2014 at 4:02 PM

Police had mistakenly applied a new enforcement policy for nuisance crimes like littering to sidewalk violations.
  • Adam Wickham
  • Police had mistakenly applied a new enforcement policy for nuisance crimes like littering to sidewalk violations.
Police commanders reviewing the chaotic aftermath of a homeless camp sweep beneath the Morrison Bridge last October all seemed to agree on one thing: Officer Todd Engstrom had made a mistake.

By grabbing a camper's dog and pinning it down, Engstrom had turned a slightly tense confrontation into something so violent Engstrom and other cops had to form a defensive line and lay hands on a camper, with Engstrom twice deciding he had no other recourse than to pull out his pepper-spray and unload into at least two people's faces.

The dog hadn't been menacing anyone, an internal investigation found—not until Engstrom grabbed it (the dog bit him once he did). If he hadn't grabbed the dog, the whole encounter might have gone along with a minimum of fuss. And no pepper spray.

Engstrom—named in a complaint by one of those pepper-sprayed campers, Angel Lopez—was found to have violated the bureau's use-of-force policy. He'd needlessly created a problem that required (in the bureau's parlance) the use of force to solve. But that was as far as command staff was willing to go. They said the actual use of pepper-spray—to subdue angry and seemingly threatening people—was within policy. Never mind the policy-violating decisions that helped whip those people up.

That wasn't good enough, however, for Lopez, who appealed to the Citizen Review Committee, a volunteer panel tasked with reviewing police misconduct investigations. And it turned out not to be good enough for the CRC, either. The panel voted 6-1 last night to challenge the bureau's finding that Engstrom did nothing wrong when he sprayed both Lopez and his girlfriend.

It's at least the third time since last summer that the CRC has asked Police Chief Mike Reese to punish a cop he'd decided to clear. Reese got the panel to back off the first time and agreed the second time, only after waiting for the cop in question to resign. But this case is different: It's the first time in recent memory the CRC has pushed back on an allegation over the use of force. If Reese says no and and can't persuade the CRC to stand down in a future hearing, this case could easily head before the Portland City Council.

But beyond the intrigues of the oversight system, this case also touches on the police bureau's general approach to homelessness. As the Mercury first reported in February, Lopez was among a handful of campers mistakenly targeted for sidewalk violations under an enforcement policy that was supposed to target crimes like littering and public intoxication. (That policy has since been reconstituted, with sidewalk violations now explicitly included.)

It also reflects one of the findings in a nearly two-year-old federal complaint against the Portland Police Bureau—which produced a settlement agreement of reforms that has yet to be accepted by a federal judge. The US Department of Justice mainly accused Portland officers of engaging in a pattern or practice of using excessive force against people with, or perceived to be dealing with, mental illness. But it also found Portland officers were too quick to use force during lower-level contacts. Part of the bureau's reform plan includes grading officers on their decision-making before force was used.

Lopez's complaint to the city's Independent Police Review Division took weeks longer than usual to process—in part because of the sheer number of witnesses involved. Video captured by two campers, shown during the hearing last night, shows several campers, cops, and private security guards working as de facto cops. And everyone had a slightly different version of events, not uncommon in police reports and interviews in these cases.

Engstrom was a familiar face for the crowd under the bridge—and also for Lopez. Documents obtained earlier this year by the Mercury show Engstrom participating in several warnings and arrests for the charge of interfering with a police officer, the main tool of the Chronic Offender Pilot Program policy, or COPP.

In his interview with investigators, Engstrom tried to explain why he went after the dog when he did—the spark that set everything else off.

The dog, he said, didn't have a leash and might have run into traffic or bit someone. He also didn't think the dog would bite him. But it did. As he grabbed the dog by hooking his fingers through its collar, it snapped at him and broke the skin on his forearm. So he grabbed the dog by the scruff of its neck and threw it to the ground, kneeling on it.

Told that a sergeant at the scene had written an after-action report suggesting Engstrom should have left the otherwise calm dog alone, he relented and said it wasn't the smartest decision, according to a summary of the investigative materials.

But by then, it was too late. He could hear the crowd shouting at him that he was trying to kill or choke the dog, and the other cops and officers had to form a protective line around him. He eventually joined that phalanx after another sergeant came over with a dog pole and relieved him.

And when he did, that's when he saw, he told investigators, Lopez "violently" shove another officer, Michael Bledsoe, who'd been trying to keep him away from Engstrom. Without warning, he took out his pepper spray and nailed Lopez in the face. He said he'd also decided to himself—conveniently just before using the spray, he told investigators—that he wanted to arrest Lopez.

Which is why, he said, he sprayed Lopez's girlfriend soon after. She was grabbing onto Lopez, he said, and trying to pull him away from the line of cops. Even though Engstrom had yer to actually tell Lopez or anyone else that he was under arrest, Engstrom thought the girlfriend was trying to "un-arrest" her boyfriend. Only later, after spraying Lopez one more time and threatening others with spray, did he tell other cops to arrest Lopez.

They moved through the crowd and grabbed Lopez and put him on the ground. (Lopez accused Engstrom of punching and kneeing him, too—but the bureau cleared Engstrom of that claim and the CRC agreed. One witness who knew Engstrom did say another cop she didn't recognize punched Lopez. That claim wasn't ever investigated, and neither video shown at the hearing last night clearly showed the entire takedown.)

The funny thing about Engstrom's memory, though, was that the encounter with Bledsoe and Lopez wasn't nearly as "violent" as he described it. Bledsoe told investigators he'd used a closed fist to push Lopez back from the line of officers after Lopez—and all Lopez had done was slap at his hand. Not "violently" shove him. No other officer thought to bring out their pepper spray because of what Lopez had done—a point CRC member Jeff Bissonnette made when discussing the case.

(For what it's worth? Engstrom is a "master instructor" responsible for teaching other instructors how to train cops in the proper use of pepper spray.)

Asked about that ample disconnect during the hearing, the acting captain who cleared Engstrom, Matthew Wageknecht, said that distinction didn't matter. Any contact between Lopez and an officer was sufficient grounds for pepper-spray. Moreover, Engstrom reasonably believed Lopez was a threat.

"He struck his hands away," Wageknecht said. "It's a hit."

Wageknecht also was asked repeatedly why Engstrom's use of force would be okay—given that the actions leading up to it weren't.

"Even though he didn't like what he officer did," he answered, "he still doesn't have the right to push or assault. We had to separate the two incidents, in my mind."

The CRC's mandate is fairly limited. If a commanding officer's discipline ruling is supported by logic, then the CRC members aren't supposed to challenge it—even if they don't agree with it. That might have kept them from challenging the findings in Lopez's case, if the allegation about pepper spray was only about Lopez.

As worded in the case materials, the pepper spray allegation wasn't specific to one target. And the CRC members quickly found themselves focusing on Engstrom's decision to spray the girlfriend. Engstrom hadn't told anyone but himself that was under arrest when the girlfriend grabbed him—something Engstrom confirmed to investigators. And pulling on someone you haven't been told is arrested, they noted, isn't a threat or evidence of a confrontation. It's the opposite.

On that point, they wound up voting, Wageknecht's logic in clearing Engstrom was flawed and couldn't be reconciled.

"He has it in his mind he's arresting the appellant," Bissonnette said. "But nobody else knows that. She certainly doesn't know that. She's trying to get him back. The spray enraged him even more. She's trying to do her part not to help him escape but to defuse the situation."

Five other members agreed—making it unlikely Chief Reese will change enough minds in whatever response he sends back, assuming he backs up Wageknecht. And given that this is a use of force case, that's probably not a bad assumption.

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