PPB press conference. Dave Killen/The Oregonian

PPB and US DOJ discuss noncompliance regarding use of force protocol

In response to one of the most eventful summers in Portland’s history, the United States Department of Justice (DOJ) reflected on Portland Police Bureau’s (PPB) response to protests, challenging its protocols.


Earlier this year, the DOJ sent a formal letter to the City of Portland outlining violations against a 2014 agreement, according to OPB. The letter notes evidence of PPB’s noncompliance with DOJ protocol for use of force. 


The agreement came about in a 2012 court case, United States v. City of Portland, where the U.S. noted “a pattern or practice of unconstitutional use of force by the PPB with actual or perceived mental illness.” This noncompliance extends to the 2020 protests under which PPB was found to disregard policies surrounding use of force. 


According to an interview with OPB, Portland Police Chief Chuck Lowell acknowledged that the city had to follow this agreement for eight years. This became a challenge when the city was forced to make budget cuts in the wake of the pandemic. Just months after, PPB faced nightly protests as the country criticized racial injustice in policing. Nevertheless, the city had to stick to these cuts and to the agreement with the DOJ before they could regain autonomy in its policies. On February 10, the DOJ issued a report that ended that agreement. 


“All the policies we have now are DOJ approved,” Lowell said. “We make tweaks and changes to those as necessary but that’s just a very fluid, live conversation.” 


However, the DOJ disagrees with this statement, stating PPB is not following protocol and has delayed responses on reports about policy changes. 


The primary evidence for this is Portland Mayor and police commissioner Ted Wheeler’s press release on Sept. 9, 2020 “directing the Portland Police to end the use of CS gas for crowd control.” Wheeler released this statement at the tail end of summer protests in which CS gas—aka ‘tear gas’—was repeatedly used against protesters. According to OPB, the DOJ found that this was “the only guidance PPB received” and that a clarification stating CS gas could still be used when a “threat to safety” was present, contradicts the original press release. 


The DOJ requested Wheeler report the specifics of this new policy, but Wheeler did not respond until Jan. 13, 2021. This added to the DOJ’s concerns regarding the city’s compliance with the 2014 agreement. 


“Having received unsatisfactory responses to our many requests, we now base our compliance assessment, in part, on the City’s failure to seek and receive approval from the Department of Justice for what amounts to a change in force policy,” DOJ lawyers wrote.


The DOJ pointed out PPB’s dismissal of policy in their report from this past February. Outside of PPB’s lack of approval from the federal agency, the report points out the bureau violated protocol for use of force. According to OPB, “PPB policy requires a use of force report to be filled out before an officer’s shift ends, and for that officer’s supervisor to review it for policy compliance within 72 hours.” However, the DOJ found that PPB failed to do this. 


“Some supervisors validated uses of force with little or no critical assessment—even uses of force that were captured on video and replayed on news media, or later became subject to complaints,” the February Justice Department report said. “Validation of individual uses of force with little or no discussion of reasonableness of the force used or of de-escalation attempts, stands in contrast to PPB’s policy requirements for force investigations and PPB’s expressed organizational goals.”


In response to this, PPB stated it was “overwhelmed by the protests last summer,” according to OPB


Following a meeting with the Portland Committee on Community Engaged Policing in March 2021, assistant U.S. attorney Jared Hager told OPB, “[PPB] says the demonstrations overwhelmed the system, but it was PPB’s use of force, not the demonstrations, that revealed the city’s reporting/reviewing systems and its accountability systems to be inadequate.” 


During this meeting, Hager explained that the U.S. has asked Portland for a plan for remediation but has yet to receive one. If it continues not to get one, the U.S. will have to issue a notice under the enforcement provisions of the settlement agreement and move forward with a plan for action. 


As of April 6, the city has not provided a remediation plan, resulting in the DOJ taking formal action in the form of a letter outlining PPB’s faults in the original 2014 agreement, according to OPB. It wasn’t until earlier this month that the bureau started to provide feedback. 


According to OPB, PPB stated it would now assign sergeants to crowd control events in order to improve use of force reports. These sergeants will also be responsible for interviewing officers and witnesses before the end of their shift to further improve the reports. The city also intends to allocate funds for Microsoft 365 to help with processing and reviewing these reports.


On May 5, federal prosecutors wrote a letter to the city as a response to their suggested improvements. 


“PPB focuses primarily on external factors beyond its control while over-relying on training and software to address the few faults it is willing to own,” the federal prosecutors wrote. “Consequently, PPB has not yet identified a satisfactory remedy to ensure full compliance with the Agreement’s force reporting and review requirements.”


In the event that this letter does not resolve the federal government’s concern about PPB’s compliance, the next step will be an in-person meeting, followed by mediation to settle the disagreement. As a last measure, the federal judge overseeing the 2014 settlement could force the city into drawing up a remediation plan with the DOJ.