By Maxine Bernstein, The Oregonian, Sept. 20, 2012

For the past three years, outside consultants, Portland’s city auditor, federal juries and a citizens’ oversight panel have sent the same message to Portland police: rein in officers’ use of the Taser stun gun and limit the cycles of electrical shock that officers can fire.

Meanwhile, Dave Woboril, a deputy city attorney, lectured officers during annual refresher training about evolving federal case law, including recent rulings that are more restrictive than Portland’s police Taser policy. Woboril also prepared rough drafts of revised Taser policies for the chief’s review.

“I’ve generated drafts over the years. They haven’t been adopted,” Woboril said. “You’re going to have to ask the chief why he didn’t move on it earlier.”

Portland Police Chief Mike Reese, who sought citizen input on the bureau’s Taser policy for more than a year, has let the policy stand with few changes.

Instead, the chief in March 2011 equipped officers’ Taser guns with a longer dart, allowing officers to shoot the less-lethal weapon from farther away, after a spate of officer-involved shootings.

So it wasn’t surprising to police observers last week when the U.S. Department of Justice concluded that Portland police engage in excessive and unjustified use of Tasers against people with mental illness. The department found a pattern of officers firing multiple cycles of Taser shock unnecessarily, and failing to wait between cycles to allow a suspect to comply with commands.

“There is a sense of deja vu,” said David Fidanque, executive director of the American Civil Liberties Union of Oregon.

Fidanque said he urged Reese about a year and a half ago to adopt more stringent Taser policies, concerned that officers were firing the weapons inappropriately.

“The report backs that up. Case law has been developing much more quickly than the Police Bureau policies, to put it mildly,” Fidanque said. “The bureau’s policy review and modifications move at a glacial speed.”

Tasers are designed to temporarily incapacitate or restrain a person when lethal force is not appropriate. They can cause pain and result in immobilization, disorientation or loss of balance. They can also cause serious injuries and even death, if the loss of muscle control causes a sudden fall, the federal report said.

The federal review concluded Portland’s Taser policy lacks clarity and has led to a “state of confusion” — even among Portland officers responsible for reviewing the weapon’s use.

For example, in a January meeting of the bureau’s Use of Force Peer Review, officers “struggled to reconcile” Portland’s written Taser policy, which allows shocks when a suspect is not displaying threatening conduct, with recent Ninth Circuit Court of Appeals case law that’s more restrictive, federal investigators said.

“Through our review of use of force reports and interviews with the public, we encountered numerous incidents where PPB officers deployed ECWs (electronic control weapons, or Tasers) in a manner that was contrary to PPB policy and generally acceptable practices,” Assistant Attorney General Thomas E. Perez wrote to Mayor Sam Adams.

Woboril, who advises the police bureau on legal matters, said for the past three years he has instructed officers on the evolving Ninth Circuit case law governing police use of Tasers.

For example, Woboril said he’s taught officers they must make an independent, separate decision before firing each Taser cycle. He also has taught officers that the Ninth Circuit court’s law supersedes bureau policy, and requires officers to face an “immediate threat” before firing Taser probes.

“We’ve been updating the training as court cases come through,” Woboril said. He said he also has drafted proposed changes to the bureau’s Taser policy to reflect the case law. “It’s been on the chief’s plate. We knew we would resolve it through the DOJ’s investigation, and we are.”

In a written reply to The Oregonian, Reese said, “Knowing the DOJ would want to weigh in on a permanent policy, we continued putting our efforts into training and working toward crafting a policy that will be reviewed not only by the DOJ, but also by community members. ” Portland’s Taser policy is more permissive than model police guidelines and too ambiguous, contributing to an excessive use of force, federal officials said.

Currently, Portland police are allowed to use a Taser when a person engages in, or “displays the intent to engage in” physical resistance or aggressive physical resistance. The bureau defines physical resistance as “actions that prevent or attempt to prevent an officer’s attempt to control a subject but do not involve attempts to harm the officer.”

In contrast to other cities, Portland’s policy could include incidents where a person is passively resisting arrest and poses no harm to an officer, the federal review noted.

Guidelines from the Police Executive Research Forum and federal Community Oriented Policing Services, issued in 2011, say Tasers should be used only against people showing “active aggression or who are actively resisting” in a way that’s likely to result in injuries to themselves or others. Tasers should not be used against a passive person, the guidelines say. In 2009, Los Angeles-based consultants hired by the city urged Portland police to adopt a similar standard and strongly advised officers against using more than three Taser cycles.

Though Justice Department officials focused on police encounters with people suffering from mental illness, they also cited concerns about Portland police Taser use in general, having identified inappropriate use against people who were not in a mental health crisis.

The bureau now requires supervisors to complete after-action reports on each Taser firing. The Justice Department found incidents where officers violated existing bureau policy — such as using Tasers on people who are passively resisting or in handcuffs — that supervisors later approved.

Last month, a subgroup of Portland’s Citizen Review Committee urged the bureau to rewrite its Taser policy to resemble the national models. The local group also urged the bureau to limit officer Taser cycles to three, except in unusual circumstances.

On Aug. 30, the chief, in a written reply, said a bureau committee agreed with the recommended policy change, but union input was needed. Reese didn’t embrace a limit on Taser cycles but said officers are expected to explain each cycle’s “reasonableness.” Amanda Marshall, U.S. Attorney for Oregon, announcing federal findings that Portland police have engaged in a pattern and practice of excessive use of force.

Asked if he thought the police bureau has been responsive, Michael Bigham, the committee’s vice chair who led the Taser subgroup, said, “No, I do not. They kind of feel they know what’s best.”

This week, Woboril said he’s drafting new Portland police use-of-force policies and Taser restrictions. The restrictions likely will prohibit Taser use against suspects running away from police when there’s little public interest in stopping them. It also will require officers to use as few cycles as possible to achieve control, he said, and to justify each one.

With a federal court-ordered agreement hanging over the bureau, community activists are hopeful changes now will get made.

“I think there’s some cause for optimism that this wake-up call will get the bureau to move expeditiously to make these needed improvements,” Fidanque said.