Portland police must strive to use cover, time and distance to their advantage when responding to potentially violent encounters and staff evaluating police shootings should stop saying that a suspect killed “left the officer with no other option,” outside consultants say in a report made public Friday.
The analysis by the California-based Office of Independent Review Group reviews nine shootings by Portland police from 2014 to 2017, including their deadly encounter with 17-year-old Quanice Hayes, a suspect in an armed robbery. It’s the sixth report by the consultants, contracted by the city to examine police shootings and deaths in police custody.
Police cornered Hayes on the morning of Feb. 9, 2017, outside a Northeast Portland home. Officers discovered him in an alcove in front of the home and ordered him to keep his hands up and crawl toward them on the driveway. When Hayes appeared to reach toward his waistband, Officer Andrew Hearst said he fired three shots from an AR-15 rifle, according to a transcript of the grand jury investigation. A replica air pistol was found in a flower bed, about 2 feet from Hayes’ body, police said.
The consultant’s report concluded officers placed themselves in a dangerous position with no available cover when they confronted the teen who they suspected was armed.
Police needed to slow down, find cover for officers and coordinate commands, according to the report. Some officers there that day reported confusing and conflicting orders such as “keep your hands up” and “crawl forward” just before Hayes was shot and killed, the analysis noted.
“Upon discovering Mr. Hayes crouched in the alcove, officers almost immediately began giving him commands to crawl out. An alternative would have been to hold Mr. Hayes at gunpoint in the alcove while conferring with each other about a plan for taking him into custody,” the report said. “Delaying the subject’s move out of the alcove also would have given officers time to coordinate who would be giving him commands.”
While the bureau’s Training Division recognized this, it concluded that the “rapidly evolving circumstances” left officers with no other options.
But the consultants said it’s “rarely true” that officers could have done nothing to change the course of events and urged the bureau to explore more deeply whether officers placed themselves in a vulnerable situation “where they felt constrained to use deadly force.”
In the Hayes case, police could have moved back, with guns still pointed at Hayes, and moved a car to the driveway to create cover for officers, for example, the consultants said.
Document: OIR Group Report
The consultants also cautioned police against frequently relying on the so-called “action-reaction” principle to justify their shootings and urged the state medical examiner’s office to avoid finding that someone shot by police died from “suicide by cop.” They also suggested that the Multnomah County District Attorney’s Office take steps to prevent grand jurors from considering highly prejudicial statements from witnesses in reviews of officer-involved shootings.
Hearst, the officer who shot Hayes, repeatedly cited the action-reaction principle in explaining why he fired his rifle. Officers are trained that someone can pull a weapon and use it before they can defend themselves — that the initiator of an action has an advantage.
“One pitfall of law enforcement’s reliance on the action-reaction principle is that it can easily be misconstrued by officers who may believe they have a mandate to shoot anyone holding a gun or someone who might have a gun and makes a sudden movement, regardless of other tactical alternatives or threat assessment,” the report said. “We have seen in some agencies where ‘action-reaction’ has become the justification for almost any use of deadly force.”
The consultants issued 40 recommendations, and Police Chief Danielle Outlaw said she agreed with all of them.
Among some of the other recommendations:
— Video record all interviews by detectives and internal affairs investigators of police and witnesses to officer-involved shootings. (The chief agreed but said this would have to be negotiated with the police unions.)
— Prohibit an officer who is minimally involved in a police shooting or death in custody from also participating as part of the investigative team.
— Don’t allow officers who are close relatives to work on the same patrol team or specialized assignment.
— Train officers not to back-step but to sidestep to avoid an approaching, armed suspect.
— Have command staff hold debriefings with officers involved in multiple shootings to identify any potential patterns or pitfalls.
In three of the nine shootings reviewed, officers fell while backing away from armed people who were advancing on them with weapons. The stumble or fall put the officers at a significant disadvantage, such as in the 2017 police shooting of Terrell Johnson. Portland police trainers had identified this problem after earlier shootings, but there’s no record of any follow-up or additional training for officers, the report said.
In the Johnson case, Portland Transit Officer Samuel Ajir quickly retreated when a suspect he had been chasing for about 200 yards suddenly turned around holding a knife. Ajir yelled, “Drop the knife!” as he backed up and drew his gun. Ajir took two to three steps back when his heel suddenly dropped down on a curb he didn’t notice. As Ajir fell, he held his 9mm Glock pistol in both hands. He fired four shots, killing Johnson, 24, who collapsed on top of a folding box cutter knife.
Ajir, an eight-year member of the Police Bureau, worked for the Transit Division for three years and was riding with his brother, a Clackamas County sheriff’s deputy, when the two responded to the Southeast Portland call at a MAX platform.
The consultants also urged outside training for the non-police members of the bureau’s Police Review Board, which considers whether police actions in officer-involved shootings adhered to policy and training, and, if not, recommend discipline.
Of 50 officer-involved shootings or deaths in police custody between March 2004 and May 2017, three officers were disciplined. One of the three was fired but then reinstated by an arbitrator and given a 120-day suspension instead.
The report said the Police Review Board doesn’t appear to serve as an “independent check” on officer performance and noted that few of the Training Division’s recommendations to the board resulting from the consultants’ shooting reviews are put into practice. If further tangible results aren’t seen, the shooting review system may require an overhaul, the consultants said.
The consultants will present the report at a community meeting at 1 p.m. Tuesday in City Hall and then to City Council at 2 p.m. on Wednesday.
— Maxine Bernstein
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