By Maxine Bernstein, The Oregonian, Feb. 22, 2013

The Portland Police Bureau is pressing ahead with drafting new written policies on use of force and Taser use as the city and union await a decision by a state panel on whether the changes must be negotiated with the officers’ union.

This week, a federal judge granted the Portland police union the legal right to intervene as a defendant in the pending U.S. Department of Justice case against the city. The judge noted that the union has the right to be party to the case because changes might impact its collective bargaining agreement.

In November, the city negotiated a wide-ranging agreement with the U.S. Department of Justice to reform its policies, training, and oversight after federal officials found the bureau engaged in a pattern of excessive force against people with mental illness.

The union filed a grievance shortly afterward, demanding that many of the changes be negotiated.

On Monday, U.S. District Judge Michael H. Simon directed the city, federal government and police union leaders to go before a mediator to iron out their differences and come back to him by April 5 with a possible amended agreement.

In a news release Friday, the police union president applauded the federal judge’s ruling.

Offier Daryl Turner,  president of the Portland Police Association, also made it clear that the union does not support the “final drafts” that Chief Mike Reese on Thursday  e-mailed to bureau members on revised use of force and Taser policies. Turner called them “fundamentally flawed.”

The chief released two final drafts to bureau members: a revised Use of force policy, and a revised Taser policy.

READ – Use of force policy, final draft (PDF, 109KB)

READ – Taser police, final draft (PDF, 64 KB)

“The PPA’s input regarding these policies has been continuously ignored by the PPB and Chief Reese’s assertion that the policies are a collaborative effort is incorrect,” wrote Officer Daryl Turner in a news release, as president of the Portland Police Association.

READ – News release by Daryl Turner (PDF, 470KB)

“The PPA has sought and will continue to seek changes to the PPB’s versions of the policies, which are fundamentally flawed and will place officers at a safety risk and a risk of baseless discipline.”

The union contends the city must negotiate with the union any change to the bureau’s use of force policies. The city has disagreed, arguing that the use of force policy is crucial to the bureau’s right to manage its operations.

City Attorney James Van Dyke said earlier this week that the city plans to seek an expedited opinion from the state Employment Relations Board on whether or not the changes in force policies are subject to mandatory bargaining.

City officials have said that the main point in dispute comes down to the standard for analyzing police use of force. The Police Bureau and city do not share the union’s stance, which would preclude hindsight analysis of an officer’s use of force and restrict a review to whether the actions were reasonable from the officer’s perspective, deputy city attorney Stephanie Harper wrote to the City Council earlier this month.

According to the city documents, Justice officials were almost done reviewing the proposed revisions to the police bureau’s force and Taser policies. Once that’s completed,  Reese desired to move ahead with training and get it done by June or July, when remodeling is scheduled for the new police training facility in Northeast Portland.

Police training on any revised policies for the rank-and-file officers was postponed in January. But now Reese intends to start in-service training for command staff on Feb. 26, and then for officers. The officers will be trained on the revised policies, Reese said.

“Included in this training, will be the draft policies. However, these policies will not be implemented until all personnel have been trained to the new policy and the Bureau adopts them as final directives,” Reese said.

Under the final use of force policy draft released Friday, officers are required to use “sound tactics and good decision-making” during a confrontation and apply, when practical, “less force than the maximum allowed by the constitutional standard and “minimizing or avoiding force when possible.” They must also reasonably balance the governmental interest in providing care to a person known or perceived to be in mental crisis. It also requires supervisors to do semi-annual reviews of each officers’ use of force.

Under the final draft on Taser use, officers must evaluate their force options and consider other options if their Taser use is not effective after two cycles fired on the same person. It allows officers to use the Taser to prevent someone from fleeing from police if the person represents an immediate threat of injury, or their escape presents a significant danger to the public, officers or the subject.

The bureau tightened its Taser policy, but not as much as federal investigators had sought. Federal justice officials urged the bureau to restrict the number of stun gun cycles an officer may fire at a single person.

Below is the email that the chief sent to bureau members on Thursday:

This week, there have been significant developments with regard to the City’s proposed settlement agreement with the US DOJ. I want to update you on each of these items and welcome your feedback.

Final Draft Force Policies

I want to thank the PPA and PPCOA, the City Attorney’s office, City Council, and community members for all of the constructive work that has been done on the Portland Police Bureau’s Use of Force and Taser policies. Today, I am officially releasing the Bureau’s final drafts of Directives 1010.00 Use of Force and 1051.00 Electronic Control Weapon System, both of which are attached to this email.

These draft directives contain changes that bring the Bureau in line with its current training as well as best practices in policing. They represent our best approach to ensure that officers are able to resolve confrontations safely and effectively, with as little reliance on force as practical.

I hope you will read through these policies and offer any feedback you may have.  Please provide feedback to Dave Virtue at dave.virtue@portlandoregon.gov.

These policies will not be implemented until all personnel have been trained to the new policy and the Bureau adopts them as final directives.

City Council Budget Decision

The City Council has approved the City Budget Office’s recommended budget for DOJ-related items in the Police Bureau, the Independent Police Review, and Bureau of Emergency Communications. This means that the Police Bureau has been approved by City Council to hire the appropriate staff to move forward with the establishment of the Behavioral Health Unit, enhanced training, and shorter timelines for Internal Affairs investigations, among other impacts of the DOJ agreement.

At this point,  we are moving forward with the establishment of the BHU (Behavioral Health Unit), under the command of Captain Sara Westbrook, and with 2013 In Service training, starting with command staff on February 26th. Given that there is a certain lack of clarity about the settlement agreement itself, the Chief’s Office will make decisions about additional implementation measures in the coming days and weeks.

This budget decision was made outside of the general budget process, which I sent an update on last week. The City’s budget shortfall this year continues to demand cuts across all city bureaus, including the Portland Police Bureau. We expect to learn more about City Council’s deliberations and decisions on that process throughout the Spring.

Mike Reese