Cops’ use of force: Why so few charges? – Oregon Mental Health Archive

June 9, 2015

by Jason Renaud and Jenny Westberg | Street Roots, June 9, 2015

A banner from a 2010 protest.

Whenever police officers use lethal force, they well know there could be consequences, including being charged and prosecuted by the district attorney. Charges may include assault, manslaughter, even murder.

But does it actually happen? Ever?

We’ve all heard the grumbles. “The police are never indicted!” And it certainly seems so. We watched and hollered at the TV as Darren Wilson got a free pass from a Ferguson, Mo., grand jury. We saw the Portland officers who killed James Chasse get off squeaky clean, without token discipline, let alone criminal charges. But we also saw — just weeks ago — six Baltimore officers indicted in Freddie Gray’s death on charges ranging from false imprisonment to second-degree murder.

That sort of mixed bag leaves the question open: Have Oregon district attorneys ever charged a police officer with a use-of-force crime?

We probably keep better track of use-of-force incidents than most, but this was something we just didn’t know. And it’s an important question because it’s a measure of justice. And if justice isn’t properly exercised, its muscles atrophy and those who need protection lose faith in its strength — to act, to flex without favor.

So we decided to find the answer.

It turned out that getting that answer was not a simple matter of asking Siri, searching Google, or thumbing through card catalogues in a dusty archive. The information we wanted was not online. It wasn’t offline either. It didn’t exist. No one keeps track of it. No one compiles it. No one sends it to their supervisor for round-filing.

So we went old-school. One of our volunteers went down the list of DAs in Oregon and contacted each and every one of them, asking the same question: “Have you charged police officers with use-of-force crimes?”So we went old-school. One of our volunteers went down the list of DAs in Oregon and contacted each and every one of them, asking the same question: “Have you charged police officers with use-of-force crimes?”

Here’s what we found out.

Twenty-six out of 36, or 72 percent, said no, they had never charged a police officer with a use-of-force crime.
The remainder who responded, 17 percent, said their legal actions were limited to a small number of cases.
None of the 32 who responded reported having filed a charge of lethal force.

Remember that since no one keeps track of this information, electronically or on paper, our results are only as good as the respondents’ memories. However, the information comes from smart respondents, district attorneys, who usually have good knowledge of what goes on in their counties. Therefore, while you shouldn’t use these numbers in high-stakes betting games or pub trivia tourneys, they should be reliable enough to frame some general, carefully worded conclusions.

Here is one: Oregon district attorneys rarely press charges against officers for use of force.

And that raises another question: Why?

Here are six possible reasons. It’s likely you can think of more.

1. It doesn’t happen

Let’s give police the benefit of the doubt for the first reason. Police officers in Oregon are well chosen, well-trained, well-equipped and well-supervised to act within law and policy. Perhaps they always act within law and policy and never use undue force.

But in our last article, “Death by cop: Who’s at risk?” we listed approximately 300 cases of officer-involved force in the Portland area alone. An impartial, common-sense review of these cases would show perhaps one in 10 included use of force undeniably beyond what was necessary, in which (a) the officer — and not the person harmed by the officer — escalated the level of force without good reason; (b) force was clearly disproportionate to the level of threat; or (c) officers used force prematurely.

One in 10, for 300 cases, would mean 30 charges for some form of undue force. But the Multnomah County District Attorney has charged only one officer with undue force in recent memory, Dane Reister.

Therefore, we believe it is unlikely that there are no incidents of excessive use of force.

2. It’s a geographic difference

Most counties in Oregon are wide-open places where human interactions are few and police are a rare sight.
We think Oregon’s geography could be a substantial reason for the low number of charges by district attorneys. People are terrible, especially to each other, and perhaps the farther we live apart from each other, the safer we all are. Less person-to-person contact suggests fewer police contacts that could result in undue force.

This one is a toss-up.

3. The DAs don’t know

Byzantine architecture is almost preposterously elaborate – like the PPB’s “Byzantine” accountability system.

Perhaps the absence of charges indicates a lack of structure to collect and disseminate information. Or perhaps the data are there, somewhere, but so deeply buried in elaborate, duplicative systems that no one can find it. Or perhaps the doors for civilians, especially civilians who are harmed by police and seek accountability, are barred.
In fact, it’s all of the above.

For the Portland Police Bureau, the checks and balances of accountability comprise, by our count, 30 distinct levels of regulation. Dozens of agencies and hundreds of people, both professionals and civilians, are involved in Portland police oversight. The most powerful of these regulators is the district attorney.

In its 2012 Findings Letter, investigators from the U.S. Department of Justice described Portland police regulation as “Byzantine,” a “self-defeating accountability system,” and listed dozens of important disconnects and complications. What’s not mentioned in the letter is the absence of regulation by county district attorneys.

In cases of lethal force, each county district attorney is directed by Oregon Senate Bill 111 (sponsored in 2007 by then-state Rep. Avel Gordly in response to the death of James Chasse) to follow a predetermined and regulated process. In Multnomah County, that process includes an investigation, a grand jury determination and the public distribution of information after case closure — a model for the state.

With 30 levels of accountability, how could anyone not know about undue force? Each level should be a listening point where a community complaint can be heard and directed toward resolution. But those employed to listen have, too often, locked the gates and nailed the windows shut.

In 2013, out of 338 community complaints made to the city’s Independent Police Review board, 98 percent were dismissed or referred back to the police for resolution, according to the IPR’s Annual Report.What exactly did the DOJ mean by a “self-defeating” accountability system? Well, here’s one example: In 2013, out of 338 community complaints made to the city’s Independent Police Review board, 98 percent were dismissed or referred back to the police for resolution, according to the IPR’s Annual Report.

Let’s repeat that:

338 complaints about police.
331 of them dismissed by the IPR, or sent back to the police for resolution.

For people who have been physically harmed by officers, institutional gas-lighting creates psychological injury; it is designed to discourage engagement by individuals and enhance mistrust in the community. It’s systemic sabotage.

4. Police have impunity

Prior to Rodney King in 1991, no one cared much about police brutality in California. A shaky home video changed that.

Prior to James Chasse in 2006, no one cared much about police brutality in Oregon. Six cellphone snapshots changed that.

Prior to Freddie Grey a month ago, no one in Maryland cared much about police brutality. Now, neighborhoods in
Baltimore have burned, and six officers stand charged.

The near absence of district attorney action over time, on these fairly common and predictable use-of-force events, results in impunity, where both the police and the public believe officers are exempt from punishment.

What does impunity mean? According to the United Nations Commission on Human Rights, it is “the impossibility … of bringing the perpetrators of violations to account — whether in criminal, civil, administrative or disciplinary proceedings — since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”

When the public comes to lose trust that police officers are safe and constrained by law, there is peril. More than anything, officers require public trust to work safely. Without trust, an assumption of innocence and a safe arrest, every police contact becomes perceptibly dangerous.

Mistrust is then compounded by the multiple failed efforts to provide accountability, by dozens of agencies and hundreds of individuals. What starts as a training problem becomes a legal problem, then a political problem, then a social problem, and ultimately an unsolvable problem. Mistrust is then compounded by the multiple failed efforts to provide accountability, by dozens of agencies and hundreds of individuals. What starts as a training problem becomes a legal problem, then a political problem, then a social problem, and ultimately an unsolvable problem.

Police officers have a legal status different from yours or mine. With certification, we expect them to use force — even lethal force — according to law and policy. But they’re not infallible. They’re not exempt from civilian oversight; they’re not entitled to extraordinary legal protection.

And if state law, bureau policy or even negotiated union contracts conflict with community values, resulting in impunity, there is no justice and there will be no peace.

5. The law — and its checks and balances — is insufficient

No video captured the scene, but plenty of witnesses saw Portland police Officer Dane Reister grab a bright orange rifle from the trunk of his car, take aim and shoot William Monroe five times. Monroe, a man with bipolar disorder, had reportedly been “acting peculiar” in a city park on a warm June afternoon in 2011.

The shots were meant to knock Monroe flat, and less-lethal “beanbags” might have done just that. But earlier in the day, Reister had absentmindedly loaded his beanbag gun with lethal shells meant for a shotgun. The pellets ripped through Monroe’s back, fractured his pelvis, punctured his bladder and severed his sciatic nerve.

The city fired Reister — a Portland first for undue force. Monroe sued the city and won a record settlement of $2.3 million. Multnomah County District Attorney Rod Underhill charged Reister with felony assault and added an unusual charge, “negligently wounding another.” The Multnomah County District Attorney has not, in recent memory, convicted an officer with a use-of-force crime.

In July 2012, Judge Jean Kerr Maurer dismissed the charge of negligently wounding another. Underhill appealed Maurer’s decision, and Reister’s case was put on hold.

Reister was left dangling for years without a trial — jobless, notorious, unhireable. Last week, he stepped in front of a train and ended his life. He is survived by his wife and three sons.

If local district attorneys have a case and can’t bring it to trial or make it stick to the satisfaction of the community, due to insufficient law, the state Legislature must change the law — and district attorneys must advocate for its change.

When regulations are set aside or delayed without good reason, when the rule of law is relaxed to the point that it protects no one, a sad but predictable course of events is set in motion. Those expecting order, regulation and peace are disappointed; they lose faith in police, the district attorney, the court, the law.

We saw it in the streets of Ferguson and again in Baltimore. Now every U.S. mayor is preparing to send out police — to protect the police.

6. We support our officers

We make a strange and wonderful agreement with our police. We give them what Max Weber called the “monopoly of the legitimate use of physical force.”

(The exception to this rule is employees of medical institutions using physical force against persons with mental illness. This is routine, unjust and unregulated.)

The privilege to use force protects the community from further violence. Its goal is to prevent and stop crime and to keep the peace. Police are people of our community too, so they can use force to protect themselves — and they do.

The privilege to use force comes with a handful of necessary conditions. First, force can only be used within a civilian-approved policy. Second, only approved methods of force can be used. Third, civilians reserve the right to revoke an individual officer’s privilege to use force. And finally, officers must always act within the law. There are more, but these are the essential conditions.

For acting within these necessary conditions, we give officers an excellent salary, great health benefits, life and disability insurance, extraordinary due process, early retirement, praise, and honor.

We sincerely appreciate the work of police officers. Our media heralds them as exceptional humans with a complex and arduous task. We teach our children to respect them. Our friends with mental illness rely on them for help when they can’t help themselves.

With these necessary conditions firmly in place, civilians can go about their business feeling safe and protected. The system can work, and it has worked all over the world for hundreds of years. And we want to believe it works — always. And it does, except for the rare occasion when it doesn’t. Often those are cases of undue use of force.

It’s the role of district attorneys to support officers, but also to stay alert and respond to these rare cases swiftly and appropriately.

We expect district attorneys to support police, as we all do, but to actively prosecute officers if they violate the law, bureau policy or the conditions of public trust.

What we think

Unless regulators exercise their skills, they will lose them, and may lose interest in further regulation. District attorneys are primary regulators of undue force by police. If Oregon district attorneys can’t bring the case, or can’t effectively argue it, they should resign.

Bringing cases of undue force to trial protects citizens, but it also protects officers, like Reister. A fair and speedy trial is our agreed-upon method to determine the truth of a violent event. Why not use it?Bringing cases of undue force to trial protects citizens, but it also protects officers, like Reister. A fair and speedy trial is our agreed-upon method to determine the truth of a violent event. Why not use it?

Ambiguity in justice harms both parties. Ambiguity feeds doubt and fuels suspicion; police and city leaders who claim they want to improve community relations should demand jury trials. Put up or shut up.

By the numbers

36 counties surveyed
26 DAs brought no charges
6 DAs brought charges
4 DAs did not respond to the survey

Survey says: Oregon district attorneys rarely charge officers with undue force

Baker County DA Matt Shirtcliff: Brought no charges
Benton County DA John M. Haroldson: Brought no charges
Clackamas County DA John Foote: One convicted, 2012
Clatsop County DA Josh Marquis: Brought no charges
Columbia County DA R. Stephen Atchison: Did not respond
Coos County DA R. Paul Frasier: One charged, prior to 2005
Crook County DA Daina Vitolins: Brought no charges
Curry County DA Everett Dial: Brought no charges
Deschutes County DA John Hummel: Brought no charges
Douglas County DA Rick L. Wesenberg: Brought no charges
Gilliam County DA Marion Weatherford: Brought no charges
Grant County DA Ryan Joslin: Brought no charges
Harney County DA Timothy J. Colahan: Brought no charges
Hood River County DA John T. Sewell: Did not respond
Jackson County DA Beth Heckert: Brought no charges
Jefferson County DA Steven Leriche: Brought no charges
Josephine County DA Stephen Campbell: Did not respond
Klamath County DA Robert W. Patridge: Brought no charges
Lake County DA Ulys Stapleton: Two charged and convicted
Lane County DA Alex Gardner: Three charged, two convicted
Lincoln County DA Michelle Branam: Brought no charges
Linn County DA Doug Marteeny: Brought no charges
Malheur County DA Dan Norris: Brought no charges
Marion County DA Walt Beglau: Brought no charges
Morrow County DA Justin Nelson: Brought no charges
Multnomah County DA Rod Underhill: One charged, 2011
Polk County DA Aaron Felton: Brought no charges
Sherman County DA Wade McLeod: Brought no charges
Tillamook County DA William Porter: Brought no charges
Umatilla County DA Daniel Primus: Brought no charges
Union County DA Kelsie McDaniel: Brought no charges
Wallowa County DA Mona K. Williams: Brought no charges
Wasco County DA Eric J. Nisley: Brought no charges
Washington County DA Bob Hermann: One conviction, one acquittal
Wheeler County DA Daniel Ousley: Brought no charges
Yamhill County DA Bradley C. Berry: Did not respond

The many levels of police oversight

For the Portland Police Bureau, the checks and balances of accountability comprise more than 30 levels of regulation and scrutiny.

Screening during the hiring process
Police academy officer training
Ongoing officer training
Informal supervision by sergeants, captains, lieutenants and commanders
PPB Manual of Policy and Procedure
Critical event review by police chief and police commissioner
PPB use-of-force review committee
PPB internal affairs investigators
Senate Bill 111 process
PPB homicide investigators
PPB Performance Review Board
Citizen Review Committee
Independent Police Review
District attorney — grand jury/public inquest
Portland Police Association
Portland Police Commanding Officers Association
Portland City Council
Portland Auditor and consultants
U.S. Department of Justice
Portland city auditor
U.S. v City of Portland’s oversight “inspector”
Media
State law
Nonprofit organizations such as Portland Copwatch
Legal organizations like the ACLU of Oregon
Church groups such as the Albina Ministerial Alliance
Individuals such as Jo Ann Hardesty
State legislators such as Lew Frederick and Chip Shields
Civil rights attorneys such as Ben Haile and David Park
State Medical Examiner Karen Gunson
State Department of Public Safety Standards and Training
State Attorney General Ellen Rosenblum

Source: Mental Health Association of Portland

Our thanks to our volunteers and to the state district attorneys, their staff members and our legal and police advisers for their help making sure this article is as free of errors as possible.

Jason Renaud and Jenny Westberg are with the Mental Health Association of Portland.

Tags:

police use of force, James Chasse, police oversight, Dane Reister, Portland Police Bureau, OSB 111, Independent Police Review, William Monroe, jury trials, police accountability, Mental Health Association of Portland, Jenny Westberg, Jason Renaud

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| Tags: Dane Reister, District Attorney, excessive force, James Chasse, police brutality, police use of force, Portland Police

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