Common use of Ongoing Obligation Clause in Contracts

Ongoing Obligation. Analysis Application of the preponderance standard. Par. 77(a). The Force Audit Report provides the percentage of cases where supervisors “measured … to determine whether the evidence supporting the officer’s account was greater than any alternative account.” See Force Audit Rep. at 14. The Report does not make clear how it determined that supervisors undertook this measurement, nor whether their method of measuring was sound. More detail is necessary about how PPB purports to make this assessment. Even were we to accept the Report’s outcomes as accurate, the Report found that in only 88% of cases did command staff measure whether the evidence supporting the officer’s account was greater than any alternative account. Literally, this means that in one of every nine cases, PPB cannot say whether an alternative finding should have been reached, based upon the evidence. Clearly, additional policy guidance and training are necessary, as recommended by the Force Audit Report (and as discussed elsewhere herein). A single, clearly-structured force report template may also help bring this number up. Completeness of 940.00 reports and ordering additional investigation and whether additional investigations were ordered when it would assist. Par. 77(b). Subparagraph 77(b) requires PPB audits to ensure that supervisors review Sergeants’ 940.00 reports, ensure completeness, and order additional investigation when necessary. Likewise, subparagraph 77(d) requires that PPB audit to ensure that supervisors “[o]rder additional investigation when it appears that there is additional relevant evidence that may assist[,] . . . and counsel the investigator.” Of the 452 supervisory reviews (presumably, the sum of 113 reviews each by Sergeants, Lieutenants, Captains, and the Chief’s Office), the Force Audit Report found that 105 should have requested additional investigation, and did not. More than one in four force investigations was incomplete, and thus at least one in four investigating Sergeants is not receiving the necessary counseling. This appears to be an extraordinarily high number, and may reflect Bureau policy and training deficiencies the Report mentions. A chart on page 22 of the Force Audit Report breaks down the 105 flagged supervisor reviews, it appears, by the rank of the supervisor and the unit. Supervisors neglecting to request additional information when they should “was a common deficiency across all levels of command and units, but seemed slightly elevated at North precinct[,]” according to the Report. The Report lists the types of necessary information that supervisors at North Precinct failed to request; these included failure to photograph the subject (2 cases), failure to get a statement from the subject or witnesses (3), and failure to require witness officer statements (2). This information is helpful: it gives the reader some sense of PPB’s criteria for measuring completeness of reports, and highlights areas that may require improvement. PPB needs to describe its findings in greater detail. PPB should list the criteria by which completeness is assessed. In addition, the deficiency was common across all levels of command and units, but the Report only provides details about North Precinct. More analysis is also necessary here. The Report should make clear how the additional information is necessary or could assist in resolving inconsistencies or improve the reliability or credibility of the findings. Perhaps a discussion of representative cases would be helpful; PPB discussed individual cases in a different context on page four, for example. In addition, the Report should recommend more specific solutions and provide a basis for these proposals; although we share PPB’s confidence that its supervisory personnel are capable of improving, the Bureau will only achieve the “clearer process” that the Report calls for if the Force Inspector explains how the process can be clarified. One discreet point requires clarification: in some instances, it appears supervisors pointed out the need for additional investigation, while their superiors in the chain of command either disagreed or overlooked the issue. For example, the Chief’s Office missed the need for additional evidence in ten cases from North Precinct, but the Lieutenants and Captains in North Precinct only missed nine and seven, respectively. This suggests that reports exist where a Lieutenant and/or Captain requested additional investigation, but the Chief’s Office (erroneously) did not share this view. Portland Police Bureau should describe why this might be. Whether findings modified as appropriate, and modifications documented. Par. 77(c). Subparagraph 77(c) asks that PPB audit to ensure that supervisors in the chain-of- command modify AAR findings “as appropriate” and document those modifications. The Force Audit Report counts the number of modifications that supervisors documented. See Force Audit Rep. at 22. The Report does not assess whether the modifications were appropriate, and it does not present a tally of necessary modifications that never took place. In the absence of such assessments, and in light of the Report’s findings that 12% of reviews did not assess the evidence according to a preponderance standard and 25% of supervisor reviews should have prompted additional information but did not, we are skeptical that findings are being modified as appropriate. Whether additional investigations were ordered when it would assist. Par. 77(d). See above. Documentation of training deficiencies, policy deficiencies, and poor tactical decisions; Supervisory discussion of poor tactical decisions, and documentation in EIS. Par. 77(e). The Force Audit Report gives some indication of what training, policy, or tactical issues are being identified. See, e.g., Force Audit Rep. at 7 (“Aside from the tactical or training issues categorized as ‘Other’, the most common tactical or training issue identified was failure to wait for/request cover (21 findings), followed by handcuffing (12 findings).”). We invite more discussion of these points, as they represent opportunities for the Chief to manage force and Members to refine their practices. As noted above, those issues that were identified were rarely documented in EIS. See comments to subparagraph 75(g). Whether supervisors suspended the investigation and notified the appropriate entities when evidence of apparent criminal conduct surfaced. Par. 77(f). Portland Police Bureau did not make this assessment. See comments to subparagraph 75(l). Report to PSD when evidence of misconduct surfaces. Par. 77(g). It is not clear that PPB made this assessment. See comments to subparagraph 75(k). Technical Assistance Each more senior supervisor in the chain of command should review documentation of a given use of force, and independently assess the reasonableness of and necessity for the force used. However, senior supervisors need not always restate all of the Sergeant’s findings or analyses. To the extent that the Lieutenant, Captain, or Assistant Chief’s findings and analyses are already captured by the Sergeant’s written assessment, the more senior supervisor can concisely describe his decision making process and concur with the findings and analysis below. Of course, where adequate review calls for a command-level supervisor to make alternative or additional findings, s/he should document such findings.

Ongoing Obligation. Analysis Application of the preponderance standardWhether After Action Reports are being completed within 72 hours. Par. 77(a75(a). According to the Force Audit Report, “Three of 113 AARs were not completed within the required 72-hour period. The audit found that 2 of the 3 overdue AARs included an explanation and that the delay was approved.” This is a helpful starting point. However, the Settlement Agreement imposes a strict requirement that AARs be completed within 72 hours, and does not provide for “approved” delays beyond this window. Obviously, more explanation of what PPB means is necessary. Whether use of force reports include the requisite information. Par. 75(b). The audit revealed grave concerns about the completeness of officers’ reports. Members did not completely and accurately account for the force decision making in more than 22% of the cases reviewed by supervisors. See Force Audit Rep. at 10. Five of 209 involved officers failed to complete an FDCR, and supervisors did not take note. See Force Audit Rep. at 16. The investigating supervisor failed to upload supporting photographs and/or videos to the database in twelve of 113 cases audited, and these failures were rarely caught. See id. The investigating sergeant did not request a statement from the subject in 13 of 113 force cases audited. Id. The force audit identified “20 . . . cases [in which] witness observations were not documented, and supervisors failed to explain the circumstances that prevented them from identifying witnesses.” Id. at 13. That is, almost one in five investigations did not disclose whether witnesses to a use of force existed or not. The Force Audit Report provides does not share how many cases suffered from more than one such infirmity. Thus, the percentage Report leaves open the possibility that as many as 50 of the 113 force cases audited lacked information fundamental to the investigation. Weight of the Evidence. Par. 75(c). Although the Force Audit Report cites the number of cases where in which supervisors “measured … to determine whether at each level considered the weight of the evidence supporting the officer’s account was greater than any alternative account.” See Force Audit Rep. at 14. The Report in reaching their decision, it does not make clear how it determined that supervisors undertook describe its criteria for reaching this measurement, nor whether their method of measuring was sounddetermination. More detail is necessary about how PPB purports to make made this assessment. Even were we to accept Per the Force Audit Report’s outcomes as accurate, “[T]he Sergeant did not consider the weight of the evidence in 8 of 113 cases reviewed, the Report found that Lieutenant in only 88% 13 of 113 cases did command staff measure whether reviewed, the evidence supporting RU Manager in 11 of 113 cases reviewed, and the officer’s account was greater than any alternative account. LiterallyCHO in 10 of the 113 cases reviewed.” Taken literally, this means that in one of every nine cases, PPB cannot say whether an alternative finding should have been reached, based upon the evidence. Clearly, additional policy guidance and training are necessary, as recommended by the Force Audit Report (and as discussed elsewhere herein). A single, clearly-structured force report template may also help bring this number up. Completeness of 940.00 reports and ordering additional investigation and whether additional investigations were ordered when it would assist. Par. 77(b). Subparagraph 77(b) requires PPB audits to ensure that supervisors review Sergeants’ 940.00 reports, ensure completeness, and order additional investigation when necessary. Likewise, subparagraph 77(d) requires that PPB audit to ensure that supervisors “[o]rder additional investigation when it appears that there is additional relevant evidence that may assist[,] . . . and counsel the investigator.” Of the 452 supervisory reviews (presumably, the sum of 113 reviews each by Sergeants, Lieutenants, Captains, and the Chief’s Office), the Force Audit Report found that 105 should have requested additional investigation, and did not. More than one in four force investigations was incomplete, and thus at least one in four investigating Sergeants is every 15 force incidents did not receiving the necessary counselingreceive proper review. This appears to be an extraordinarily high number, and may reflect Bureau policy and training deficiencies the Report mentions. A chart on page 22 of In conjunction with the Force Audit Report breaks down Report’s findings concerning omitted evidence, this delivers a clear message that additional steps are necessary to ensure the 105 flagged supervisor reviews, it appears, by the rank of the supervisor and the unit. Supervisors neglecting to request additional information when they should “was a common deficiency across all levels of command and units, but seemed slightly elevated at North precinct[,]” according to the Report. The Report lists the types of necessary information that supervisors at North Precinct failed to request; these included failure to photograph the subject (2 cases), failure to get a statement from the subject or witnesses (3), and failure to require witness officer statements (2). This information is helpful: it gives the reader some sense integrity of PPB’s criteria for measuring completeness supervisory force reviews. Use of reports, and highlights areas that may require improvement. PPB needs a “decision-point” approach to describe its findings in greater detail. PPB should list the criteria by which completeness is assessed. In addition, the deficiency was common across all levels analyze each use of command and units, but the Report only provides details about North Precinct. More analysis is also necessary here. The Report should make clear how the additional information is necessary or could assist in resolving inconsistencies or improve the reliability or credibility of the findings. Perhaps a discussion of representative cases would be helpful; PPB discussed individual cases in a different context on page four, for example. In addition, the Report should recommend more specific solutions and provide a basis for these proposals; although we share PPB’s confidence that its supervisory personnel are capable of improving, the Bureau will only achieve the “clearer process” that the Report calls for if the Force Inspector explains how the process can be clarified. One discreet point requires clarification: in some instances, it appears supervisors pointed out the need for additional investigation, while their superiors in the chain of command either disagreed or overlooked the issue. For example, the Chief’s Office missed the need for additional evidence in ten cases from North Precinct, but the Lieutenants and Captains in North Precinct only missed nine and seven, respectively. This suggests that reports exist where a Lieutenant and/or Captain requested additional investigation, but the Chief’s Office (erroneously) did not share this view. Portland Police Bureau should describe why this might be. Whether findings modified as appropriate, and modifications documentedforce. Par. 77(c75(d). Subparagraph 77(c“The [Force Inspector’s] audit methodology collects two data points at the officer level designed to measure a decision point description of the force decision making[:] (1) asks that documentation of the subject’s resistance prior to the application of force and (2) documentation of alternative force options considered.” These two limited data points fail to capture most of the phases of any given police-citizen encounter, as discussed above in relation to subparagraph 74(c)(iii). PPB audit will need to ensure that supervisors in the chain-of- command modify AAR findings “as appropriate” and document those modificationsreassess its methodology for assessing subparagraph 75(d). The Force Audit Report counts auditors are not the only PPB Members confused about decision-point analysis. Supervisors make the statement that a “decision point analysis” was conducted, but, in our visit to PPB in August, several supervisors struggled to describe what the term means or how such an analysis is conducted. Consistency with PPB policy, the Settlement Agreement, and best practices. Par. 75(e). Given the number of modifications reports that supervisors documentedlacked necessary documentation, witness accounts, or other critical information, we cannot agree with the finding that all but a handful of officers’ conduct comported with policy, the Settlement Agreement, and best practices. See Force Audit Rep. at 2215. If, as the audit says, supervisors made this finding notwithstanding the absence of information critical to such a determination, this raises questions about the integrity of the review process. Whether there was legal justification for the original stop and/or detention. Par. 75(f). The Force Audit Report states that supervisors found justification for the stop or detention that preceded use of force in 92% of cases – but does not say what happened in the other 8% of cases. See Force Audit Rep. at 13. The reader could reasonably interpret the Report as stating that eight percent of the stops or detentions in which force was used had no legal basis. The Report does simply cannot assess be silent on these issues. The Force Audit Report anticipates changes to “guidance” in order to address this last problem. It would be helpful to know if the Report is referring to changes to policy, training, or both. Assess the incident for tactical and training implications, including whether the modifications were appropriate, and it does not present a tally use of necessary modifications that never took place. In force may have been avoided through the absence use of such assessments, and in light of the Report’s findings that 12% of reviews did not assess the evidence according to a preponderance standard and 25% of supervisor reviews should have prompted additional information but did not, we are skeptical that findings are being modified as appropriate. Whether additional investigations were ordered when it would assistde-escalation techniques or lesser force options. Par. 77(d75(g). It is not clear from the Force Audit Report that supervisors consistently assessed incidents for tactical and training implications. The Force Audit Report said that a supervisor had a tactical and/or training concern in 30% of cases, see Force Audit Rep. at 7, but does not share what assessment supervisors made in the other 70% of cases. There is reason for close scrutiny. DOJ review found that supervisors did not identify all of the actual policy, training, or tactical issues that arose from officers’ conduct. For example, several supervisors read into the ECW policy a non-existent exception to the 5-second deployment rule. See abovecomments to paragraph 68. Documentation Further, officers may not be supplying all of the information supervisors need to make this determination. In addition to other deficiencies, the audit found that only 30% of officer narratives documented force options considered besides the one used. See Force Audit Rep. at 11 (62 of the 209 officer narratives audited contained such analysis). The Force Audit Report states that no supervisors found that force may have been avoided through de-escalation. See Force Audit Rep. at 3. This conveys relevant information to PPB command staff. PPB should also share whether any supervisors neglected to review the need for de-escalation. Determine whether additional training or counseling is warranted. Par. 75(h). Although supervisors raised tactical and training concerns in response to some cases, the Force Audit Report does not share whether this translated into additional training or counseling. Whether corrective action was implemented for reporting omissions or inaccuracies, or failing to report a use of force. Par. 75(i). The Force Inspector undertook this review, and found as follows: “On average, supervisors failed to take corrective action when there were material omissions or inaccuracies with officers’ reports 86% of the time.” See Force Audit Rep. at 21. The Force Inspector recommends revising the reporting directive and training for supervisors, in order to better explain this point. Five officers failed to complete FDCRs for their use of force, but PPB’s audit found that no supervisor reported taking corrective action. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, and or poor tactical decisions; Supervisory discussion of poor tactical decisions, and documentation decisions in EIS. Par. 77(e75(j). The Force Audit Report gives some indication Rarely did supervisors use EIS to document their discussion of what training, policy, policy or training deficiencies or poor tactical issues are being identifieddecisions with officers. See, e.g., Force Audit Rep. at 7 21 (“Aside from the finding that, when a training deficiency, policy deficiency, or poor tactical or training issues categorized as ‘Other’decision was identified for supervisors, the most common tactical or training issue identified was failure to wait for/request cover (21 findings), followed by handcuffing (12 findings).”). We invite more discussion EIS entry contained the information in 8 of these points, as they represent opportunities for the Chief to manage force and Members to refine their practices. As noted above, those issues that were identified were rarely documented in EIS. See comments to subparagraph 75(g330 EIS entries audited). Whether supervisors suspended the investigation notify designated personnel of every serious use of force, and notified the appropriate entities when evidence any use of apparent criminal conduct surfacedforce that could appear to constitute misconduct. Par. 77(f75(k). Portland Police Bureau did not make this assessmentThe Force Audit Report states that all nine serious uses of force were referred to the Professional Standards Division. See comments Force Audit Rep. at 20. Evidence of misconduct triggers a requirement that supervisors report the matter to subparagraph 75(lProfessional Standards Division (“PSD”) and other designated entities, under subparagraphs 75(k) and 77(g). Report Auditing to PSD when ensure compliance with these subparagraphs must begin by determining in which cases evidence of misconduct surfacessurfaced, and then looking at what happened in those cases. ParIt is difficult to decipher whether PPB took the first step. 77(g)The Force Audit Report cites a total number of cases that required PSD notification, but does not say how many of those cases included misconduct. See Force Audit Rep. at 20. It is not clear that the Force Inspector independently reviewed each case for evidence of misconduct. PPB made will need to clarify these points in future reports. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear that an officer engaged in criminal conduct. Par. 75(l). Although they employ slightly different wording, subparagraphs 75(l) and 77(f) require that PPB supervisors in the chain-of-command notify certain entities within PPB whenever the investigation evidences criminal conduct. (Subparagraph 77(e) also requires that PPB suspend the use of force investigation when such evidence surfaces.) Auditing to ensure compliance with this assessmentsubparagraph must begin by determining in which cases evidence of criminal conduct surfaced, and then looking at what happened in those cases. The Force Audit Report skips the first step. The Force Inspector does not independently review each case for evidence of criminal conduct. Instead, it looks only at the set of cases in which supervisors notified other entities, and asks whether criminal conduct was at issue. See comments to subparagraph 75(k)Force Audit Rep. at 20. This is insufficient. Technical Assistance Each more senior We agree with the Force Audit Report’s repeated recommendation that PPB must revise its reporting directive and provide training. See, e.g., Force Audit Rep. at 16, 21. PPB must urgently revise its policies to capture the requirements of the Settlement Agreement and best practices, as Members should be looking to a single, sufficiently directive source (i.e., policy) for guidance on their actions. As discussed elsewhere herein, PPB has not accomplished this yet. The paragraph 72 checklist should be amended to capture all requirements that investigating supervisors must meet, and appended to the policy so that supervisors know that it is mandatory. Subjects of PPB Members’ force often refused to give a statement or they responded with negligible factual details. PPB will inevitably receive some such responses. Notwithstanding, it may help for the investigating supervisor to explain to subjects that her/his role is to investigate the officers’ conduct, and that the subject can assist in that effort. PPB policy and training must provide supervisors with sufficient guidance so that they will weigh the chain evidence according to the terms of command the Settlement Agreement and document their determination. PPB should review documentation take care not to limit “misconduct” to violations of the Xxxxxx standard, as it does in writing subparagraph 75(k) into policy. Members can engage in misconduct during a given encounter, independent of the reasonableness of the use of force, and . Auditing supervisors’ performance may require the Force Inspector to independently assess review the reasonableness of and necessity for the force used. However, senior supervisors need not always restate all of the Sergeant’s findings or analyses. To the extent cases in order to verify that the Lieutenant, Captain, or Assistant Chief’s findings and analyses are already captured by the Sergeant’s written assessment, the more senior supervisor can concisely describe his decision making process and concur with the findings and analysis below. Of course, where adequate review calls for a command-level supervisor to make alternative or additional findings, s/he should document such findingsdid not miss anything.

Ongoing Obligation. Analysis Application of the preponderance standardWhether After Action Reports are being completed within 72 hours. Par. 77(a75(a). According to the Force Audit Report, “Three of 113 AARs were not completed within the required 72-hour period. The audit found that 2 of the 3 overdue AARs included an explanation and that the delay was approved.” This is a helpful starting point. However, the Settlement Agreement imposes a strict requirement that AARs be completed within 72 hours, and does not provide for “approved” delays beyond this window. Obviously, more explanation of what PPB means is necessary. Whether use of force reports include the requisite information. Par. 75(b). The audit revealed grave concerns about the completeness of officers’ reports. Members did not completely and accurately account for the force decision making in more than 22% of the cases reviewed by supervisors. See Force Audit Rep. at 10. Five of 209 involved officers failed to complete an FDCR, and supervisors did not take note. See Force Audit Rep. at 16. The investigating supervisor failed to upload supporting photographs and/or videos to the database in twelve of 113 cases audited, and these failures were rarely caught. See id. The investigating sergeant did not request a statement from the subject in 13 of 113 force cases audited. Id. The force audit identified “20 . . . cases [in which] witness observations were not documented, and supervisors failed to explain the circumstances that prevented them from identifying witnesses.” Xx. at 13. That is, almost one in five investigations did not disclose whether witnesses to a use of force existed or not. The Force Audit Report provides does not share how many cases suffered from more than one such infirmity. Thus, the percentage Report leaves open the possibility that as many as 50 of the 113 force cases audited lacked information fundamental to the investigation. Weight of the Evidence. Par. 75(c). Although the Force Audit Report cites the number of cases where in which supervisors “measured … to determine whether at each level considered the weight of the evidence supporting the officer’s account was greater than any alternative account.” See Force Audit Rep. at 14. The Report in reaching their decision, it does not make clear how it determined that supervisors undertook describe its criteria for reaching this measurement, nor whether their method of measuring was sounddetermination. More detail is necessary about how PPB purports to make made this assessment. Even were we to accept Per the Force Audit Report’s outcomes as accurate, “[T]he Sergeant did not consider the weight of the evidence in 8 of 113 cases reviewed, the Report found that Lieutenant in only 88% 13 of 113 cases did command staff measure whether reviewed, the evidence supporting RU Manager in 11 of 113 cases reviewed, and the officer’s account was greater than any alternative account. LiterallyCHO in 10 of the 113 cases reviewed.” Taken literally, this means that in one of every nine cases, PPB cannot say whether an alternative finding should have been reached, based upon the evidence. Clearly, additional policy guidance and training are necessary, as recommended by the Force Audit Report (and as discussed elsewhere herein). A single, clearly-structured force report template may also help bring this number up. Completeness of 940.00 reports and ordering additional investigation and whether additional investigations were ordered when it would assist. Par. 77(b). Subparagraph 77(b) requires PPB audits to ensure that supervisors review Sergeants’ 940.00 reports, ensure completeness, and order additional investigation when necessary. Likewise, subparagraph 77(d) requires that PPB audit to ensure that supervisors “[o]rder additional investigation when it appears that there is additional relevant evidence that may assist[,] . . . and counsel the investigator.” Of the 452 supervisory reviews (presumably, the sum of 113 reviews each by Sergeants, Lieutenants, Captains, and the Chief’s Office), the Force Audit Report found that 105 should have requested additional investigation, and did not. More than one in four force investigations was incomplete, and thus at least one in four investigating Sergeants is every 15 force incidents did not receiving the necessary counselingreceive proper review. This appears to be an extraordinarily high number, and may reflect Bureau policy and training deficiencies the Report mentions. A chart on page 22 of In conjunction with the Force Audit Report breaks down Report’s findings concerning omitted evidence, this delivers a clear message that additional steps are necessary to ensure the 105 flagged supervisor reviews, it appears, by the rank of the supervisor and the unit. Supervisors neglecting to request additional information when they should “was a common deficiency across all levels of command and units, but seemed slightly elevated at North precinct[,]” according to the Report. The Report lists the types of necessary information that supervisors at North Precinct failed to request; these included failure to photograph the subject (2 cases), failure to get a statement from the subject or witnesses (3), and failure to require witness officer statements (2). This information is helpful: it gives the reader some sense integrity of PPB’s criteria for measuring completeness supervisory force reviews. Use of reports, and highlights areas that may require improvement. PPB needs a “decision-point” approach to describe its findings in greater detail. PPB should list the criteria by which completeness is assessed. In addition, the deficiency was common across all levels analyze each use of command and units, but the Report only provides details about North Precinct. More analysis is also necessary here. The Report should make clear how the additional information is necessary or could assist in resolving inconsistencies or improve the reliability or credibility of the findings. Perhaps a discussion of representative cases would be helpful; PPB discussed individual cases in a different context on page four, for example. In addition, the Report should recommend more specific solutions and provide a basis for these proposals; although we share PPB’s confidence that its supervisory personnel are capable of improving, the Bureau will only achieve the “clearer process” that the Report calls for if the Force Inspector explains how the process can be clarified. One discreet point requires clarification: in some instances, it appears supervisors pointed out the need for additional investigation, while their superiors in the chain of command either disagreed or overlooked the issue. For example, the Chief’s Office missed the need for additional evidence in ten cases from North Precinct, but the Lieutenants and Captains in North Precinct only missed nine and seven, respectively. This suggests that reports exist where a Lieutenant and/or Captain requested additional investigation, but the Chief’s Office (erroneously) did not share this view. Portland Police Bureau should describe why this might be. Whether findings modified as appropriate, and modifications documentedforce. Par. 77(c75(d). Subparagraph 77(c“The [Force Inspector’s] audit methodology collects two data points at the officer level designed to measure a decision point description of the force decision making[:] (1) asks that documentation of the subject’s resistance prior to the application of force and (2) documentation of alternative force options considered.” These two limited data points fail to capture most of the phases of any given police-citizen encounter, as discussed above in relation to subparagraph 74(c)(iii). PPB audit will need to ensure that supervisors in the chain-of- command modify AAR findings “as appropriate” and document those modificationsreassess its methodology for assessing subparagraph 75(d). The Force Audit Report counts auditors are not the only PPB Members confused about decision-point analysis. Supervisors make the statement that a “decision point analysis” was conducted, but, in our visit to PPB in August, several supervisors struggled to describe what the term means or how such an analysis is conducted. Consistency with PPB policy, the Settlement Agreement, and best practices. Par. 75(e). Given the number of modifications reports that supervisors documentedlacked necessary documentation, witness accounts, or other critical information, we cannot agree with the finding that all but a handful of officers’ conduct comported with policy, the Settlement Agreement, and best practices. See Force Audit Rep. at 2215. If, as the audit says, supervisors made this finding notwithstanding the absence of information critical to such a determination, this raises questions about the integrity of the review process. Whether there was legal justification for the original stop and/or detention. Par. 75(f). The Force Audit Report states that supervisors found justification for the stop or detention that preceded use of force in 92% of cases – but does not say what happened in the other 8% of cases. See Force Audit Rep. at 13. The reader could reasonably interpret the Report as stating that eight percent of the stops or detentions in which force was used had no legal basis. The Report does simply cannot assess be silent on these issues. The Force Audit Report anticipates changes to “guidance” in order to address this last problem. It would be helpful to know if the Report is referring to changes to policy, training, or both. Assess the incident for tactical and training implications, including whether the modifications were appropriate, and it does not present a tally use of necessary modifications that never took place. In force may have been avoided through the absence use of such assessments, and in light of the Report’s findings that 12% of reviews did not assess the evidence according to a preponderance standard and 25% of supervisor reviews should have prompted additional information but did not, we are skeptical that findings are being modified as appropriate. Whether additional investigations were ordered when it would assistde-escalation techniques or lesser force options. Par. 77(d75(g). It is not clear from the Force Audit Report that supervisors consistently assessed incidents for tactical and training implications. The Force Audit Report said that a supervisor had a tactical and/or training concern in 30% of cases, see Force Audit Rep. at 7, but does not share what assessment supervisors made in the other 70% of cases. There is reason for close scrutiny. DOJ review found that supervisors did not identify all of the actual policy, training, or tactical issues that arose from officers’ conduct. For example, several supervisors read into the ECW policy a non-existent exception to the 5-second deployment rule. See abovecomments to paragraph 68. Documentation Further, officers may not be supplying all of the information supervisors need to make this determination. In addition to other deficiencies, the audit found that only 30% of officer narratives documented force options considered besides the one used. See Force Audit Rep. at 11 (62 of the 209 officer narratives audited contained such analysis). The Force Audit Report states that no supervisors found that force may have been avoided through de-escalation. See Force Audit Rep. at 3. This conveys relevant information to PPB command staff. PPB should also share whether any supervisors neglected to review the need for de-escalation. Determine whether additional training or counseling is warranted. Par. 75(h). Although supervisors raised tactical and training concerns in response to some cases, the Force Audit Report does not share whether this translated into additional training or counseling. Whether corrective action was implemented for reporting omissions or inaccuracies, or failing to report a use of force. Par. 75(i). The Force Inspector undertook this review, and found as follows: “On average, supervisors failed to take corrective action when there were material omissions or inaccuracies with officers’ reports 86% of the time.” See Force Audit Rep. at 21. The Force Inspector recommends revising the reporting directive and training for supervisors, in order to better explain this point. Five officers failed to complete FDCRs for their use of force, but PPB’s audit found that no supervisor reported taking corrective action. Document any non-disciplinary corrective action to remedy training deficiencies, policy deficiencies, and or poor tactical decisions; Supervisory discussion of poor tactical decisions, and documentation decisions in EIS. Par. 77(e75(j). The Force Audit Report gives some indication Rarely did supervisors use EIS to document their discussion of what training, policy, policy or training deficiencies or poor tactical issues are being identifieddecisions with officers. See, e.g., Force Audit Rep. at 7 21 (“Aside from the finding that, when a training deficiency, policy deficiency, or poor tactical or training issues categorized as ‘Other’decision was identified for supervisors, the most common tactical or training issue identified was failure to wait for/request cover (21 findings), followed by handcuffing (12 findings).”). We invite more discussion EIS entry contained the information in 8 of these points, as they represent opportunities for the Chief to manage force and Members to refine their practices. As noted above, those issues that were identified were rarely documented in EIS. See comments to subparagraph 75(g330 EIS entries audited). Whether supervisors suspended the investigation notify designated personnel of every serious use of force, and notified the appropriate entities when evidence any use of apparent criminal conduct surfacedforce that could appear to constitute misconduct. Par. 77(f75(k). Portland Police Bureau did not make this assessmentThe Force Audit Report states that all nine serious uses of force were referred to the Professional Standards Division. See comments Force Audit Rep. at 20. Evidence of misconduct triggers a requirement that supervisors report the matter to subparagraph 75(lProfessional Standards Division (“PSD”) and other designated entities, under subparagraphs 75(k) and 77(g). Report Auditing to PSD when ensure compliance with these subparagraphs must begin by determining in which cases evidence of misconduct surfacessurfaced, and then looking at what happened in those cases. ParIt is difficult to decipher whether PPB took the first step. 77(g)The Force Audit Report cites a total number of cases that required PSD notification, but does not say how many of those cases included misconduct. See Force Audit Rep. at 20. It is not clear that the Force Inspector independently reviewed each case for evidence of misconduct. PPB made will need to clarify these points in future reports. Notify the Detective Division and shift supervisor of every force incident in which it could reasonably appear that an officer engaged in criminal conduct. Par. 75(l). Although they employ slightly different wording, subparagraphs 75(l) and 77(f) require that PPB supervisors in the chain-of-command notify certain entities within PPB whenever the investigation evidences criminal conduct. (Subparagraph 77(e) also requires that PPB suspend the use of force investigation when such evidence surfaces.) Auditing to ensure compliance with this assessmentsubparagraph must begin by determining in which cases evidence of criminal conduct surfaced, and then looking at what happened in those cases. The Force Audit Report skips the first step. The Force Inspector does not independently review each case for evidence of criminal conduct. Instead, it looks only at the set of cases in which supervisors notified other entities, and asks whether criminal conduct was at issue. See comments to subparagraph 75(k)Force Audit Rep. at 20. This is insufficient. Technical Assistance Each more senior We agree with the Force Audit Report’s repeated recommendation that PPB must revise its reporting directive and provide training. See, e.g., Force Audit Rep. at 16, 21. PPB must urgently revise its policies to capture the requirements of the Settlement Agreement and best practices, as Members should be looking to a single, sufficiently directive source (i.e., policy) for guidance on their actions. As discussed elsewhere herein, PPB has not accomplished this yet. The paragraph 72 checklist should be amended to capture all requirements that investigating supervisors must meet, and appended to the policy so that supervisors know that it is mandatory. Subjects of PPB Members’ force often refused to give a statement or they responded with negligible factual details. PPB will inevitably receive some such responses. Notwithstanding, it may help for the investigating supervisor to explain to subjects that her/his role is to investigate the officers’ conduct, and that the subject can assist in that effort. PPB policy and training must provide supervisors with sufficient guidance so that they will weigh the chain evidence according to the terms of command the Settlement Agreement and document their determination. PPB should review documentation take care not to limit “misconduct” to violations of the Xxxxxx standard, as it does in writing subparagraph 75(k) into policy. Members can engage in misconduct during a given encounter, independent of the reasonableness of the use of force, and . Auditing supervisors’ performance may require the Force Inspector to independently assess review the reasonableness of and necessity for the force used. However, senior supervisors need not always restate all of the Sergeant’s findings or analyses. To the extent cases in order to verify that the Lieutenant, Captain, or Assistant Chief’s findings and analyses are already captured by the Sergeant’s written assessment, the more senior supervisor can concisely describe his decision making process and concur with the findings and analysis below. Of course, where adequate review calls for a command-level supervisor to make alternative or additional findings, s/he should document such findingsdid not miss anything.