For the past 10 months, Portland police officers have been documenting encounters with people they deem mentally ill, whether they arrest them or not.
Was there “illogical thinking/talking,” “disorientation/confusion,” “abnormal behavior/appearance,” or “neglect of self-care”? Was the person “hearing voices/hallucinating,” “anxious/excited/agitated,” or “paranoid or suspicious”? Did they have a “severe, depressed mood,” or “suicidal talk or gesture(s)”?
Lately, if Portland officers think so, they’ve been logging it in a little-known document the Portland Police Bureau (PPB) calls a “mental health mask” before they write any incident reports about what happened. Once the information is entered, it’s transferred to a spreadsheet.
Sources say the “mask” began as a way to show the US Department of Justice (DOJ) that the bureau is taking its interactions with the mentally ill seriously—a necessity, since the city’s trying to comply with a federal settlement stemming from police abuses of people in crisis.
But there’s a problem: The PPB never told the Multnomah County District Attorney’s Office it had begun filing these reports. That means defense attorneys representing people with perceived mental illnesses were never provided the additional records associated with their clients’ arrest. Prosecutors are constitutionally required to hand over such evidence to the defense as part of a process called discovery.
In addition to that constitutional snarl, some defense attorneys and civil rights advocates the Mercury talked to questioned the subjectivity of the reports from officers who may not be trained well enough to diagnose mental illness, and how past “mental health masks” of a person may taint the bureau’s interactions with them in the future.
The PPB started a “trial” of the documenting system in January, and implemented it department-wide in March—all unbeknownst to prosecutors, according to an October 11 email from Chief Deputy District Attorney Chuck Sparks that was leaked to the Mercury.
“It recently came to our attention that the Portland Police Bureau has been collecting information on mental health issues apparent during contacts between bureau members and the public,” Sparks wrote in the email, which was addressed to a number of defense attorneys, prosecutors, a judge, police officials, and a deputy city attorney. Sparks tells the Mercury the office only learned of the practice when a prosecutor attended a recent police roll call.
In the email last week, Sparks attached screenshots of the form cops have been filling out that asked, among other questions:
•How did you first learn of a mental health component to the call?
•Was an officer from the Enhanced Crisis Intervention Team [a group of officers trained to deal with mental health crises] there? How were they notified? Was there a mental health professional there?
•Is the person a military veteran?
•What techniques were used?
•Was ANY force used against the person with mental illness? Were they armed? What kind of weapon? Were there any injuries, and to whom?
•Were they taken to a psychiatric hospital? Was it voluntary or involuntary?
“Our review of the mask’s questions... leads us to conclude that the questions and answers are discoverable to the defense in a criminal case,” Sparks wrote. “PPB agrees. I am writing you because this information was not included in police reports for cases submitted to this office between January and now, nor were we aware of this information collections, and so it was not discovered to the defense in related criminal cases.”
Sparks wrote that the PPB didn’t inform prosecutors of the mask because cops viewed it as “data collection and not a police report.” Now, defense attorneys can get the reports from closed cases and cases currently going through the system, and the prosecutors will turn the reports over in future cases, should the PPB continue with it.
PPB spokesperson Sergeant Pete Simpson said the bureau couldn’t answer the Mercury’s questions before press time because it’s preparing for a hearing next week before a federal judge overseeing the city’s settlement with the DOJ. Simpson only offered up the following statement: “The mental heath mask allows the city to collect baseline information about the type of interactions with people in crisis to better understand demand.”
Sparks notes that much of the information swept up in the mask likely “will already have been included with the associated police reports,” but he says that’s not a guarantee.
That’s what concerns defense attorneys.
“If a police officer wrote down one thing in the mental health mask and they wrote down something different in their police report, that would be an issue,” says Keith Rogers, executive director of Multnomah Defenders, who first learned about the program from Sparks’ email. “There’s just more information there and it could be any number of things for why it might be important. Until you see it, you don’t know.”
For instance, the information could show trends in the mental state of a defendant that would be useful to a lawyer.
“If they have information that my guy has been walking around, contacted 15 times, seemingly disoriented like he doesn’t know what’s going on,” says Metropolitan Public Defenders Executive Director Lane Borg, “that might support a claim of guilty except for insanity, or the persistence of mental illness, or the lack of a mental state, even.They have the duty to give that over to us.”
The information could also be used in court to question the credibility of an arresting officer, says Borg: “I might want to know what kind of interactions this officer has had. Are they persistently stopping one type of person downtown? What may seem like crazy rantings of my client—was there a pattern of that from the officer? Do you see 15 reports that look exactly the same?”
For public defender Chris O’Connor, that the cops kept the program secret from district attorney’s office “shows a disconnect between the prosecution and the police. We’re used to DAs not having control over the information—not individual bad DAs, but the whole system is screwed—and they can’t provide discovery fast enough on a good day. It wasn’t surprising, just another disappointing discovery issue.”
Now that the mask is public, it’s up to defense attorneys to review old cases to see if they want to request associated data. The district attorney’s office will work with the bureau “to develop a method for this information to accompany the case reports when they are presented to this office,” Sparks wrote in the email. “If they do not, then PPB will likely develop a short supplemental report for use when a mental health factor is present; this would become part of the police report on the incident. Either way, we hope to have a solution in place within a month.”
Here's the email from Chief Deputy District Attorney Chuck Sparks that was leaked to the Mercury:
It recently came to our attention that the Portland Police Bureau has been collecting information on mental health issues apparent during contacts between Bureau members and the public. These contacts, by their nature, vary widely and they may lead to both criminal and non-criminal outcomes. The information is collected from the primary officer who answers a series of questions that appear on the officer’s computer screen as they begin report writing. This screen view containing the questions is called a “mental health mask.” The “mental health mask” does not become a police report itself, but instead gathers and stores the mental health data about the contact in a spreadsheet for PPB’s use. A blank copy of the mental health mask is attached for your review. As you can see, the mask questions address whether there was a mental-health component to the police contact and, if so, asks for the details of the mental health issue. Once the questions are answered, the data is transferred into the spreadsheet, the mask disappears from the screen, and the officer proceeds to writing the police report (which is called a GO report—it is the standard police report).
PPB began a trial of the mental health mask in January of 2016. In March, it moved to Bureau-wide use. This was not communicated to the District Attorney’s Office because it was data collection and not a police report.
Once this office learned of the mental health mask, we immediately reviewed the questions used in the mask to get an understanding of what was involved. Our review of the mask’s questions, which you see in the attachments, leads us to conclude that the questions and answers are discoverable to the defense in a criminal case. PPB agrees. I am writing you because this information was not included in police reports for cases submitted to this office between January and now, nor were we aware of this information collection, and so it was not discovered to the defense in related criminal cases.
It is expected that much of the information gathered by the “mask” and contained in the spreadsheet will already have been included in the associated police reports. There is, however, a chance that some was not. For this reason I am alerting you to the existence of the mask and informing you that, at your request, this office will request the mental health mask data for your review on any case you handled during the relevant time, January 2016 to present.
There are two issues:
1. Closed and currently open cases where this information was not provided in discovery: Resolution: We will provide the information collected on the mental health mask in any case you or your firm are involved in or have closed. Please contact me directly and I will see that you get it. My contact information is below.
2. Future cases: PPB is evaluating whether to continue using the mask. Resolution: If they continue with it, then we will work to develop a method for this information to accompany the case reports when they are presented to this office. If they do not, then PPB will likely develop a short supplemental report form for use when a mental health factor is present; this would become part of the police report on the incident. Either way, we hope to have a solution in place within a month. In the meantime, please proceed as outlined above.
Multnomah County District Attorney's Office