There are certain circumstances when police officers are allowed to lie to members of the public: When they're working undercover, when they're working on a hostage negotiation, and when its unavoidable to protect public safety.
Lying to a protester about their First Amendment rights, however, doesn't make the cut.
At a meeting this past Wednesday, Portland's police oversight board, the Citizen Review Committee (CRC)—the civilian-led board that, among other things, hears appeals from people who've accused police officers of wrongdoing—unanimously agreed that a cop violated the Portland Police Bureau's "Truthfulness" policy when he told someone they could go to jail for filming the police.
This particular incident took place on November 30, 2016, when activists met on public property near an oil terminal in industrial Northwest Portland to protest the Dakota Access Pipeline. During the demonstration, activist Ben Kerensa used his cell phone to take videos of the police monitoring the protest, including PPB Sgt. Erin Smith. That's when Smith told Kerensa that he "could be arrested" for filming police activity. That's not true: Federal courts have ruled that filming police officers on the job is a right covered by the First Amendment.
This isn't the first time this specific case has come before the CRC. A year ago, Kerensa reported this incident to the city's Independent Police Review, the city-staffed office that investigates police misconduct and presents their findings before the CRC. Smith told investigators that he had knowingly lied to get Kerensa to stop filming.
While a representative from the Portland Police Bureau (PPB) argued that telling someone they "could be" arrested is not a genuine threat to arrest, the CRC ruled Smith had violated the police bureau's policy on professional conduct by threatening Kerensa and misrepresenting the law. PPB Chief Danielle Outlaw agreed.
But Outlaw didn't stop there. Instead, she punted the case back to PPB internal affairs, requesting they investigate if Smith had also violated PPB's truthfulness policy during his interaction with Kerensa.
At Wednesday's hearing on this second allegation, Smith's supervisor, Capt. Stephanie Lourenco, argued that while Smith had acted "unwisely," he had not violated PPB's policy.
"You can use deception for officer safety purposes," Lourenco said.
Smith told investigators he had lied to Kerensa to get him to back away from another PPB officer. At the time, that second officer was writing Kerensa a citation for improperly using a crosswalk. (That citation has since been dismissed.) Lourenco said that Smith's lie served as a type of police de-escalation technique.
CRC members weren't sold.
"How is lying going to make the officer more safe? It's not like they wanted him to leave, since they had to give him a citation," said CRC Vice Chair Candace Avalos. "I continue to be concerned that lying is considered de-escalation."
Other committee members pointed out that in his original interviews with investigators, Smith never mentioned a threat to public safety.
"I don't think just because an officer says after the fact that he thought there was a safety issue means that that officer in the moment thought there was a safety issue," said CRC member Andrea Chiller.
Chiller said there was no evidence in Kerensa's video, witness testimony, or any other documentation of the incident that suggested he was posing a safety threat.
"To look at the totality of these circumstances and say that this officer had a subjective belief there was a public safety issue, I just can't buy that," Chiller said.
The CRC ultimately ruled that Smith's lie was not exempt from PPB's truthfulness policy. Their findings will be sent to Outlaw, who can agree or disagree with their decision.
Kerensa, who spoke at the evening hearing, said the outcome of this case could have a ripple effect across the police force.
"[This could] send a message to other officers that they can lie to the public," he said, "and they can get away with it."