In a rare vote Wednesday, three members of Portland's City Council raised questions about the actions of a police officer who repeatedly tased a man while arresting him in 2014.
But the council fell short of finding the officer — who was not named during the proceedings — of violating the police bureau's policy on stun guns.
"The evidence that's been provided is not rock solid," said Mayor Ted Wheeler, who cast a vote to exonerate the officer. "What we have are different accounts, grainy video, judgement calls that were made over a 15-second span."
Wheeler was joined by Commissioner Dan Saltzman, who supported the police bureau's decision to exonerate the officer.
They were outnumbered by commissioners Chloe Eudaly, Amanda Fritz and Nick Fish. They ultimately prevailed with a motion to find that there was not sufficient evidence to show whether or not the officer followed police rules guiding use of force.
“There are too many unique circumstances in this case that trouble me, that I think need to be aired out and discussed,” said Fish as he cast his vote.
Wednesday was the first time the council has heard an appeal in a complaint about police use of force since 2003.
The case raises questions about the police bureau and its progress implementing a 2012 settlement with the federal Department of Justice, which found that officers were too quick to deploy Tasers against people with mental illness. Police Chief Mike Marshman’s testimony Wednesday also revealed the police bureau is using a Taser model with a design flaw that may lead officers to shock people by accident.
The original incident took place Sept. 17, 2014. Patrol officers in Northwest Portland responded to a woman in a car who called for help and said a cyclist had punched her window and circled her vehicle.
Three officers found Matthew Klug, the cyclist involved in the confrontation, a few blocks away. They tried to handcuff him, Klug resisted arrest, and one of the officers repeatedly shocked him with the stun gun. A nearby civilian filmed part of the confrontation on a cellphone.
The police bureau’s internal affairs division began investigating whether the officer’s use of force was within bureau policy in 2015, after Klug filed a civil suit. The internal investigation eventually ended up before the Citizen Review Committee, a group of civilian volunteers that works with the city’s Independent Police Review division and provides civilian oversight over the police.
The officer told investigators he had used his Taser three times, but a log from the device showed the Taser had discharged six times during the altercation.
“Multiple Taser discharges occurred while Appellant was lying face-down on the ground with three officers restraining him, as seen in video taken by a bystander. Some of these discharges have been attributed to Officer B's finger slipping on and off of the button used to activate the weapon, ” the civilian review committee wrote in a summary of the case.
Both the police bureau and the Civilian Review Committee agreed the officer’s final discharge of the Taser took place after Klug was handcuffed, and was accidental.
The bureau’s internal affairs division ultimately decided that the officer’s use of the Taser was justified, and exonerated him. Klug appealed the decision to the Citizen Review Board. It found that the officer's use of force had violated the bureau’s policy. But Chief Marshman overruled the civilian board’s decision, and maintained the officer’s use of force was justified, which led to the issue coming before the City Council for an appeal.
Klug appeared at the hearing wearing a red tie with a bicycle print and described himself as a person suffering from mental illness, a traumatic brain injury and epilepsy. During his testimony about the case, Klug struggled at times to maintain his focus.
"They're going to go after me," he said. "This stuff is a big deal."
The officer under review chose not to testify. The independent police review division does not have the right to compel officers to testify during its appeals process.
During the hearing, Marshman testified the officer in question had followed police bureau policy.
That policy states, in part "members will not use an ECW [Taser] on a handcuffed or otherwise restrained subject, for example, a subject being held to the ground by several officers, unless the subject is actively engaged in behavior that creates a substantial risk of injury."
Marshman played cellphone video of the encounter during his testimony. He said the officer responded appropriately to Klug's acts of aggression, which included tensing his shoulders and kicking his legs, at one point causing the officer to fall to the ground.
He argued flashes of light visible in the video showed that at some points, the Taser had not been touching Klug when it went off.
Marshman said some of the six recorded discharges of the Taser were likely accidental. The officer was using what was at the time a new model of Taser, known as the X2.
Officers, Marshman said, are trained to rest their fingers away from the trigger of their gun, in a position known as indexing. But placing a finger in that same position on the gun-shaped X2 Taser causes it to discharge.
"If you're struggling, you have a natural instinct to clench your hands during that struggle," Marshman said. "In my mind, it's a poor design of that button on a Taser."
The Portland Police have since adopted the X2 as their standard issue Taser model. Marshman said after he became chief he asked the training division to review the weapon and potential problems with it.
Marshman also argued it was appropriate for the officer to shock Klug twice after he had been brought to the ground and three officers were sitting on top of him.
"Yes, we were holding him down, but he wasn't restrained. He was continuing to fight, to kick," said Marshman.
Kristin Malone, the chair of the Citizen Review Committee, presented a different view of the incident.
According to Malone, the committee found that while Klug did resist his arrest, his actions did not pose a significant risk to the officers or justify the use of the Taser. Klug's conduct "did not meet the definition of active aggression," she said, noting that "three officers had the appellant pinned against a wall, and had hold of his arms and torso."
Malone said the CRC also questioned the fourth and fifth discharges of the stun gun, which took place after Klug had been brought to the ground, and when the video showed him, in her words, "prone and largely immobile."
Malone said the CRC found the police bureau's explanation that the Taser may have been discharged accidentally helpful, but did not find it exonerated the officer for his conduct.
"Community members have a right to expect that officers are properly trained on any weapons used outside of the training facility," she noted.
After the hearing, Malone said she was "a little disappointed, that the council, in essence split the baby," but that she understood their decision.
In reviewing police misconduct appeals, the council has to apply a very specific standard of review: whether a “reasonable person” could reach the finding in light of the evidence.
“I understand how hesitant you can be, when you’re faced with that standard, and you want to get it right,” Malone said.
She said the case illustrates a broader problem: The police bureau and the public can have very different interpretations of the same incidents and the directives that are supposed to guide officers.
"I think that to most members of the public, the concept of an assault really means something violent," Malone said. "I think the bureau tends to see it as somebody who's not complying with their orders, and that's a real disconnect."