Case Law & Resources: Oregon
Citation
Issue Presented & Facts
Holding
Rich v. Cooper, 380 P.2d 613 (1963)
Whether a police officer was entitled to a jury instruction to effect that, when making an arrest, police officers are presumed to act in good faith in determining the amount of force that can be used.
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A plaintiff was arrested for driving while under the influence of alcohol. However, a struggle ensued during the arrest, leaving the plaintiff's face covered with blood. He was promptly taken to the hospital before returning to the police station. The plaintiff later sued the police officer for assault and battery during the arrest.
The jury return a verdict for the defendant police officer. The case was appealed by the plaintiff who argued that the court's jury instruction was improper. This jury instruction noted that a police officer who makes an arrest is entitled to a presumption that he or she acted in good faith in determining the amount of force necessary to make the arrest. The Oregon Supreme Court affirmed the trial court's decision that the jury instruction was not improper.
Reference to ORS 161.239.
Portland Police Ass'n v. City of Portland, 365 P.3d 1123 (2015)
Whether the statute established a clearly defined public policy requiring deference to the police chief's decision on whether an officer's conduct comports with the police bureau's use-of-force policies.
The Portland Police Department discharged a police officer after a fatal shooting. The Portland Police Association filed a grievance that challenged the discharge, and an arbitrator made an independent determination finding that the police officer's use of force did not violate the police department's use-of-force policy. As a result, the arbitrator found that the police officer should be reinstated. However, the plaintiff argued that the arbitrator's award was unenforceable because it violates the public policy that requires deference to a police chief's understanding of the use-of-force policies. In this case, the police chief held Portland police officers to standards more restrictive that the minimum amount required under the Constitution. The Employment Relations Board upheld the complaint and ordered the city to reinstate the officer. The case was appealed.
The Court of Appeals of Oregon affirmed the Employment Relations Board's holding. The court noted that the statute simply expresses a policy requiring law enforcement agencies to adopt use-of-force policies applicable to their officers; and that it says nothing about the deference to be accorded to an agency's application of those polices (that is, to the agency's determination of whether an officer's conduct conforms to the polices).
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Reference to ORS 181A.790.
Case Law
Resources
Citation
Summary and Notes
Outlines policies within the Portland Police Bureau with regards to de-escalation and warning issuance procedures.
Relevant Excerpt
De-escalation Procedures:
1) Members shall use de-escalation techniques, when time and circumstances reasonably permit. De-escalation techniques provide members the opportunity to stabilize the scene or reduce the necessity for or intensity of force so that more time, options and resources are available to resolve the confrontation. Members shall take proactive steps to eliminate the immediacy of the threat, establish control and minimize the need for force.
a) De-escalation techniques include, but are not limited to: (i) using verbal techniques to calm an agitated subject and promote rational decision making; (ii) allowing the subject appropriate time to respond to direction; (iii) communicating with the subject from a safe position using verbal persuasion, advisements, or warnings; (iv) decreasing exposure to a potential threat by using distance, cover, or concealment; (v) placing barriers between an uncooperative subject and an officer; (vi) ensuring there are an appropriate number of members on scene; (vii) containing a threat; (viii) moving to a safer position; and (ix) avoiding physical confrontation, unless immediately necessary.
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Warning Procedures:
1) Unless it would present a danger to the member(s) or others, members shall issue a clear and intelligible verbal warning or attempt to utilize hand signals where there is a language barrier or the subject is deaf or hard of hearing, prior to using any force.
a) Members shall provide a description of the warning given in their use of force reports. If no warning was given, members shall provide a justification for the lack of warning. No written justification is necessary for the lack of a warning for vehicle intervention techniques and Category IV force.
2) Prior to using a less lethal weapon, members shall, when feasible, warn or announce to other members their intent to use the tool, in an attempt to avoid sympathetic fire.
Outlines policies within the Beaverton Police Department with regards to de-escalation and warning requirements.
De-escalation Policy:
1) Officers should consider that taking no action or passively monitoring the situation may be the most reasonable response to a mental health crisis.
2) Once it is determined that a situation is a mental health crisis and immediate safety concerns have been addressed, responding members should be aware of the following considerations and should generally (i) evaluate safety conditions, (ii) introduce themselves and attempt to obtain the person’s name, (iii) be patient, polite, calm, courteous and avoid overreacting, (iv) speak and move slowly and in a non-threatening manner, (v) moderate the level of direct eye contact, (vi) remove distractions or disruptive people from the area, (vii) remonstrate active listening skills (e.g., summarize the person’s verbal communication) and (viii) provide for sufficient avenues of retreat or escape should the situation become volatile.
3) Responding officers generally should not (i) use stances or tactics that can be interpreted as aggressive, (ii) allow others to interrupt or engage the person, (iii) corner a person who is not believed to be armed, violent or suicidal and (iv) argue, speak with a raised voice or use threats to obtain compliance.
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Relevant Provisions Regarding Warning Requirements:
300.4 (Deadly Force Applications): An officer may use deadly force to stop a fleeing subject when the officer has probable cause to believe that the person has committed, or intends to commit, a felony involving the infliction or threatened infliction of serious bodily injury or death, and the officer reasonably believes that there is an imminent risk of serious bodily injury or death to any other person if the individual is not immediately apprehended. Under such circumstances, a verbal warning should precede the use of deadly force, where feasible.
303.4 (Issuing, Carrying and Using Control Devices): Control devices may be used when a decision has been made to control, restrain, or arrest a subject who is violent or who demonstrates the intent to be violent, and the use of the device appears reasonable under the circumstances. When reasonable, a verbal warning and opportunity to comply should precede the use of these devices.
435.7 (Use of Force): Individuals refusing to comply with lawful orders (e.g., nonviolent refusal to disperse) should be given a clear verbal warning and a reasonable opportunity to comply. If an individual refuses to comply with lawful orders, the Incident Commander shall evaluate the type of resistance and adopt a reasonable response in order to accomplish the law enforcement mission (such as dispersal or arrest of those acting in violation of the law).