Portland commanders shouldn’t presume deadly force is ‘inevitable’ in encounters with distressed people who provoke police, consultants say

Oregonian, January 25, 2016

Police commanders shouldn’t be quick to conclude that deadly force is inevitable when someone under extreme emotional distress is intent on provoking a violent response by police, outside consultants caution.

Simply because a subject in crisis desires a certain outcome, it “does not mean that skillfully trained and well-equipped officers should necessarily accommodate him,” the California-based OIR Group wrote in its fourth report on Portland officer-involved shootings and deaths in police custody.

[embeddoc url=”http://www.mentalhealthportland.org/wp-content/uploads/2016/12/OIR-GROUP-REPORT-2016.pdf” download=”all”]

When officers take appropriate steps – slowing down their response, creating distance between themselves and suspects, and taking cover when possible – they’re less likely to be in a position where use of force becomes necessary, the consultants wrote.

The consultants also spent a considerable time criticizing the 48-hour rule in the police union contract that restricts officers from speaking to investigators immediately after they’ve been involved in a shooting.

Further, the report threw on its head what’s been a longstanding training tenet in the bureau: the idea that someone with a knife who is within 21 feet of them can attack faster than an officer has time to pull, aim and fire a gun.

“The 21-foot rule should never be seen as a green light to use deadly force or as creating a ‘kill zone,”’ experts have found, yet that lore seems to remain “inculcated” in the Portland Police Bureau, the consultants wrote.

The OIR Group examined the Portland police internal reviews of 11 police shootings that occurred between January 2011 and March 2013. The consultants found the police bureau to be cooperative and superior to most law enforcement agencies, but said there’s room for improvement. Its 133-page report will be presented to the City Council at 2 p.m. Thursday.

Read the consultant’s recommendations

[embeddoc url=”http://www.mentalhealthportland.org/wp-content/uploads/2016/01/selection.pdf” download=”all”]

In a letter attached to the report, Police Chief Larry O’Dea wrote that the bureau agrees with most of its recommendations and has taken steps to improve how officers respond to people in crisis since these shootings. He is expected to comment at the council meeting, bureau spokesman Sgt. Pete Simpson said.

[embeddoc url=”http://www.mentalhealthportland.org/wp-content/uploads/2016/01/chiefresponse.pdf” download=”all”]

What consultants found most striking was that in seven of the 11 shootings, there was some evidence that the person shot had intended to induce a deadly force encounter with police. In some instances, the police bureau was “too quick to assume” that the person “forced” officers to fire, the report said.

“In these reviews, the Bureau was less open to evaluating the possibility of alternative approaches to the scenario that might have afforded officers a better opportunity to influence the outcome,” the consultants wrote. “We caution the Bureau against adopting the language, culture, and mentality that suggests the death of a suicidal individual who appears intent on provoking a confrontation with police is always inevitable.”

The bureau cited the Jan. 25, 2012, fatal shooting of Brad Lee Morgan as a prime example.

The 21-year-old died from a single gunshot wound to the head atop the SmartPark garage on Southwest Fourth and Morrison Street in downtown Portland after he had called 911 and pulled out a realistic-looking replica of a gun.

Though deputy city attorneys successfully argued in a civil trial that it was Morgan who determined his fate that day, the bureau’s own training division analysis found that the officers involved had moved too close to Morgan without adequate cover for themselves, and had approached him without important information culled during Morgan’s lengthy 911 call.

“The Training Division has used this shooting as a learning tool to help officers better understand how to react to people threatening suicide or otherwise in crisis,” the report said. “The Bureau’s trainers expect that officers would handle a situation like that presented by Mr. Morgan somewhat differently today than they did in 2012.”

As a result of the Morgan case, the bureau’s training division now recommends that a patrol officer try to talk to a person by phone and keep a safe distance. It suggests officers be conferenced in to a 911 call before a dispatcher hangs up with a suicidal person (showing the caller that the dispatcher trusts the officer to continue the conversation in a positive way), or at the least, be sent an audio file of a 911 call while responding to a scene. Further, the bureau is working to have emergency dispatchers assigned to its Crisis Negotiation Team.

If officers had known the full context of Morgan’s statements to a 911 dispatcher, they might have maintained a greater distance from him, the consultants wrote.

“While it ultimately concluded officers were justified in using deadly force given the threat presented when Mr. Morgan produced and pointed his replica firearm, Training nonetheless seemed to understand, as the Commander did not, that Mr. Morgan’s death at the hands of police was not inevitable,” the report said.

The report also found that a deadly police shooting involving a 67-year-old homeless vet might have played out differently had the officers not approached the man, presumed armed, in a confined space. Yet the consultants found police supervisors concluded in this case that the shooting was “driven” by the man’s actions. On Jan. 2, 2011, Thomas Higginbotham was shot 10 times by two officers after he emerged from his room in an abandoned Southeast Portland carwash holding a knife with an 8-inch blade.

“For a police agency to conclude that it was unable to change an outcome despite the tactical advantages it has surrenders too much control and gives too much credit to suspects,” the report said.

The report also recommends:
— The bureau clarify training on the 21-foot rule so it’s not used to justify a police shooting when a suspect armed with a knife comes within 21 feet of an officer.

In the Higginbotham case, according to the report, Officer Larry Wingfield did just that. In testimony to grand jurors, Wingfield said, “They train us not to let anybody get within 21 feet of you with an edged weapon.”

The rule’s origin? More than 25 years ago, a Salt Lake City police officer performed rudimentary tests and concluded an armed attacker who bolted at a cop could clear 21 feet in the time it took most officers to draw, aim and fire their gun. The conclusion was repeated in training videos. But last May, police chiefs attending the Police Executive Research Forum conference expressed concern that some officers consider the 21-foot rule a legal justification to shoot someone, instead of seeing it as a general warning for officers to protect themselves when they encounter a person with a knife, the report said.

— The bureau get rid of the 48-hour rule that restricts an officer involved in a shooting from providing immediate statements to investigators.

The consultants made the same recommendation in 2012. In the 11 shootings reviewed for this report, no officer gave a statement until at least 48 hours after their use of force, some even later. Officer Dane Reister was interviewed a week after he seriously wounded a man with a beanbag shotgun that he mistakenly loaded with lethal rounds.

Though the Portland Police Commanding Officers Association recently removed the rule from its contract, that change has little practical effect because the majority of officers who have been involved in shootings are in the rank-and-file union, the Portland Police Association, the report noted.

“Ideally, officers involved in shootings would provide voluntary statements to Bureau detectives on the night of the shooting, as many officers routinely do across the country,” the report said.