From the Oregonian, October 21, 2011

The attorney for Portland Police Officer Dane Reister doesn’t dispute that her client mistakenly loaded his beanbag shotgun with lethal rounds and seriously wounded a man in Southwest Portland June 30.

But Reister’s lawyer, Janet Hoffman, plans to argue in court next week that the officer’s mistake resulted from the Portland Police Bureau’s “gross negligence” and “woefully inadequate” practices and policies surrounding officers’ handling of less-lethal firearms and ammunition.

Hoffman said she’ll offer expert testimony to demonstrate that Reister’s error was “directly caused by the PPB’s failure to design and implement a system for training, storage, handling and loading of less lethal weapons and ammunition that meets basic safety standards,” according to a motion filed in court late Friday.

Hoffman has subpoenaed Mayor Sam Adams, who serves as police commissioner, Chief Mike Reese, Commissioner Dan Saltzman, the prior police commissioner, and eight other bureau members to appear in Multnomah County court at 9:30 a.m. Tuesday for a hearing before Presiding Judge Jean Kerr Maurer.

The unprecedented action comes as a grand jury is already sitting, hearing testimony since Wednesday on Reister’s shooting of William Kyle Monroe, 21. It also falls as the bureau is the target of a federal justice department investigation into its use of force.

Hoffman will urge the presiding judge to allow the grand jury to consider whether the bureau’s “failure to put in place adequate safeguards” for its less-lethal ammunition affected Reister’s actions on the day he shot Monroe.

“PPB’s failures set its officers up to make exactly this type of foreseeable mistake,” Hoffman argues in court papers.

Norm Frink, Multnomah County’s chief deputy district attorney, said he will oppose the motion.

“Whether the city is grossly negligent or not is not relevant to the issue before the grand jury, which is an examination of Officer Reister’s conduct,” Frink said. “The grand jury does not examine the conduct of an organization. That may or may not be a relevant question for the community.”

Bureau officials can not discuss the merits of the case because of the on-going criminal inquiry, said Portland Lt. Robert King, bureau spokesman. He stressed that since the bureau began using beanbag shotguns in 1997, “an incident such as this has never occurred.” He said the bureau understands Reister has an attorney whose job it is to be his advocate.

The mayor is on a 10-day trip to Asia. The city attorney’s office is expected to try to quash the subpoenas, which were also served on the bureau’s assistant chiefs, Central Precinct’s commander and armory supervisor, the bureau’s training captain, lead instructor and risk manager.

“The city doesn’t believe this criminal defense attorney has the authority to issue such a subpoena,” said Amy Ruiz, the mayor’s spokeswoman.

The Oregonian reported last month that other law enforcement agencies in Oregon and elsewhere have adopted more stringent policies and procedures than Portland’s to prevent such mishaps.

Washington County Sheriff’s Office discontinued the lethal shotgun when it brought in less-lethal beanbag shotguns in 1998, concerned about the very mix-up of ammunition that occurred in Portland.

Other agencies, such as the Clackamas County Sheriff’s Office, don’t allow officers to carry both lethal and less-lethal shotguns.

Firearm experts have said Portland’s policy, which restricts officers from carrying 12-gauge lethal rounds on “his/her person or utility belt while also carrying a less lethal weapon,” does not go far enough. It doesn’t prevent officers from mixing lethal and less-lethal shotgun munitions in their duty bags, as officers commonly do, and as Reister did on June 30.

Chief Reese, in a Sept. 28 guest column in The Oregonian said he directed a “top-to-bottom” review of other agencies’ protocols. He wrote that he didn’t want the bureau to “rush to make policy changes” without understanding what occurred June 30.

According to court papers, Hoffman’s expert Ron Martinelli, a former San Jose, Calif. police officer and detective with over 22 years of experience who specializes in forensic police practices, will testify that the bureau’s procedures are unsafe, and increase the risk of accidental loading. Leeza Maron, an assistant professor of psychiatry at OHSU, will testify that even the most skilled officers can “miss things perceptually” when performing the most routine tasks and that’s why it’s important to have “safeguards and preventative measures where the consequences from such errors are serious.”

For this reason, Maron will testify, the Transportation Security Administration places two screeners at airport security stations.

“The PPB’s use of color as the sole distinguishing factor between lethal and less lethal ammunition was wholly insufficient to prevent the type of error that occurred,” Hoffman wrote.

Hoffman’s experts are expected to address the practice of allowing officers to mix ammunition in duty bags, inadequate security in Central Precinct’s parking garage, where officers leave their duty bags with ammunition, and lack of supervision on who checks out the less-lethal shotguns.

On June 30, Reister checked out a less-lethal shotgun from Central Precinct’s armory, left the precinct and walked across the street to what his lawyer called a “dimly lit” basement of an adjacent parking garage. There, he found his duty bag, walked to his patrol car in the garage and loaded the beanbag shotgun with lethal rounds.

He responded to a 9-1-1 call about an armed man threatening children at Lair Hill Park. A second caller said the man left the park, had a pocket knife concealed in his sleeve and was acting in a “peculiar manner.”

According to his lawyer, Reister spotted Monroe at the corner of Southwest Pennoyer Street and Naito Parkway and described him as “highly agitated,” with a knife he was trying to conceal in his hand. Reister told Monroe to show his hands, and Monroe refused, instead yelling at Reister.

Reister took out his less-lethal shotgun and called for back-up. When Monroe started to run, Reister ran after him, ordered him to stop and get on the ground. Reister decided “he needed to stop Monroe to prevent him from getting away and threatening other residents,” his lawyer wrote in court motions.

Reister, 40, a 15-year bureau veteran who in 2006 was a use-of-force instructor, fired four lethal shotgun rounds – a fifth ejected – from the beanbag shotgun. Only when he approached Monroe did Reister realize the man was bleeding and that he had fired lethal rounds. Monroe suffered two entry wounds to his left thigh; one of the two was a “through and through” shot. Another hit his buttocks, shattering his pelvis, and puncturing his bladder, colon and injuring his rectum, his lawyer Thane Tienson.