K. Marie

The Portland Police Bureau (PPB) has a high threshold for what constitutes a threat when it comes to statements made by one of its own.

So when one sergeant policing a protest on a public sidewalk last November approached an activist who was legally filming cops and said, incorrectly, that the man “could be arrested,” the PPB determined the sergeant didn’t actually “threaten” to arrest him.

“'Could be arrested’ is not sufficient enough to cross the line into an actual threat,” Traffic Division Captain Mike Crebs told a civilian oversight board last week, explaining his decision to clear the sergeant of an allegation, filed by activist Ben Kerensa, that the cop had made an improper threat. “I felt there had to be some kind of declaration that, 'You’re going to be arrested if you don’t stop filming.’ That never occurred.”

The Citizen Review Committee (CRC)—the civilian board which, among other duties, hears appeals from people who are unhappy with the results of their complaints against cops—unanimously disagreed with Crebs’ viewpoint.

“This is like an old-school mafia tactic,” CRC member Daniel Schwartz said.

The scenario sets up what could be Police Chief Danielle Outlaw’s first decision to side either with the civilian board, which believes a cop violated policy, or with her own command staff. The CRC previously challenged a finding during Outlaw’s tenure, which began in early October, but the new chief sent the case back for more investigation before making a decision, says CRC Chair Kristin Malone.

After the CRC challenges the bureau’s clearance of an officer, the police chief typically makes a final call. The chief can side with CRC and punish the cop, or head to a future CRC meeting to try to convince the board to see it her way. If the CRC and chief still disagree, the case is settled by the Portland City Council—a rare occurrence. Earlier this year, the council heard the first CRC-involved case in more than 12 years. 

The recent CRC saga is another example of the PPB’s troubles with citizens who film cops in public, a legal activity under state and federal law.

The incident took place on November 30, 2016, as Kerensa and others were protesting the Dakota Access Pipeline (DAPL) near the Phillips 66 terminal in industrial Northwest Portland. A month before, the PPB had adopted a new policy and training procedures regarding citizens’ right to film police—a response to an ACLU of Oregon lawsuit on behalf of a woman whose phone was illegally seized while she was recording officers (edit: we wrongly reported she was arrested--we regret the error) . The DAPL protest came just weeks after raucous anti-Trump protests that put cops and activists at odds with each other. 

Kerensa filed two complaints from the November 30 action. The first, based on an earlier encounter, was that it was improper for a cop to tell him that he couldn’t film police activity. The bureau agreed with that complaint, but did not concede that a sergeant, in another confrontation, had threatened Kerensa with arrest for wielding his camera.

According to last Wednesday’s CRC meeting, the sergeant told investigators he purposefully lied to Kerensa “about whether he was going to be arrested or not” to try to get him to stop filming. Crebs, the sergeant’s boss, didn’t have a problem with the sergeant lying, noting it’s acceptable for cops to lie to people when undercover or while dealing with a hostage negotiation.

ACLU of Oregon Legal Director Mat dos Santos, who showed up to the Wednesday night meeting, disagreed.

 “That the sergeant also admits that he’s employing his tactic to make [Kerensa] stop filming should further bolster the finding of an improper threat,” dos Santos said to the board. “If the officers are allowed to simply wordsmith their threats to avoid internal accountability, then officers will be permitted to suppress First Amendment rights with impunity.”

During her vote to challenge Crebs’ finding, Malone called the sergeant’s tactics “abhorrent.”

“If you do it in a situation where somebody knows their rights, that’s extremely terrible, but let’s say you do it in a situation with somebody who doesn’t know their rights,” she said. “Maybe it’s not the First Amendment, maybe it’s Fourth Amendment. Maybe it’s an ‘I can come into your apartment’—it’s not something we want to be doing.”

After the CRC voted to challenge Crebs’ decision to clear the sergeant, the traffic division captain disregarded some CRC members’ calls for the bureau to conduct more training regarding not lying to citizens about their constitutional rights. 

“This is the first time I’ve seen an officer lie in a circumstance like this,” he said. “I think this is a one-off.”