Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 1 of 80 ASSESSMENT REPORT Police of Puerto Rico’s Response to the demonstrations and incidents involving the May 1%, 2018 (Worker’s Day) Office of the Federal Monitor to the A greement for the Sustainable Reform of the Puerto Rico Police Bureau Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 2 of 80 TCA Assessment Report 2018 Table of Contents Table of Contents Executive Summary TCA Reports under the Agreement Introduction Section | Crowd Control Policies History Under the Agreement Section II Training on Crowd Control Training of PRPB Personnel Training of Personnel Deployed People and Units Trained under the Crowd Management and Control Policy Section Ill Implementation of Policies and Training Analysis of Operational Plans Analysis of Strategy and Tactics Section IV Related/Relevant Policy Issues Policy and Training Analysis of the Events: Findings and Recommendations Section V Review of PRPB’s Self-Assessment Review of After-Action Reports Review of Use of Force reports and Complaints Arrests and related Judicial procedures Section VI Analysis of Best Practices and Models Models and Best Practices 18 19 22 24 29 29 30 31 39 42 45 73 75 77 78 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 3 of 80 TCA Assessment Report 2018 Executive Summary This is the Federal Monitor’s Report for the Court and the Parties in the Agreement for the Sustainable Reform of the Puerto Rico Police Bureau (“Agreement”) on the demonstrations and incidents on May 1%, 2018. The Report assesses the Puerto Rico Police Bureau's (“PRPB’) response to these events.’ On May 4, 2018, Docket 831 issued by the United States District Court in case Number 3:12-cv-02039 issued an Order authorizing the TCA to assess events and report on findings as follows: “The Court hereby designates retired United States special agent and TCA investigator Jose Pujol to conduct an independent evaluation and assessment, followed by a report, of the May 1 demonstrations. The parties shall fully cooperate with him and immediately agree as to the evaluation’s methodology. See, e.g., Order of April 26, 2017, Docket No. 511 at 2, lines 4-7. Signed by Judge Gustavo A. Gelpi on 5/4/18.” Order of 05/04/2018, Docket #831. EVIDENCE AND ANALYSIS’ RESULTS USE OF FORCE: It is common knowledge that before the Court approved and entered the Agreement as an Order in 2013, demonstrations and protests ended in violent responses by the PRPB against the protesters. The United States Department of Justice (‘USDOJ) investigation of 2011 uncovered excessive force and pervasive civil rights and liberties violations during these past demonstrations. The Monitor reviewed PRPB’s response to demonstrations that took place in April and May 2017 and concluded that the Reform, even during the capacity building stage, brought very positive changes in the way the PRPB responded to these situations and events, notwithstanding some incidental abuses of force and procedural errors. With the implementation of Act 20 of 2017, the former Puerto Rico Police Department (PRPD) is now known as the Puerto Rico Police Bureau (PRPB). Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 4 of 80 TCA Assessment Report 2018 Demonstrations May 15, 2018: On May 15, 2018, the PRPB expected that there were going to be six (6) groups that intended to march (demonstrate), but it was noticed that one (1) of the groups merged with the others resulting that finally five (5) were accounted for. It should be noted that four (4) of these five (5) marches took place in a peaceful and orderly manner. The demonstration that started at the University of Puerto Rico, hereinafter UPR, marched Northbound on Ponce de Leon Avenue, where it met with the group of marchers that started in the vicinity of the Department of Labor (Departamento del Trabajo) building. Both marches continued until they arrived at the intersection of Ponce de Leon Avenue and Mufioz Rivera Avenue, where the Liberty building is located at. There, instead of continuing their march to the public expression platform (set up in consultation with the PRPB) previously located at the intersection of Roosevelt and Munoz Rivera Avenues, they stopped because there was a thick line of Police Agents that blocked the Ponce de Leon Avenue. It should be noted that the evidence examined regarding this specific location reflects many protesters covered their faces with masks, shirts, and other pieces of clothing. Many of them carried wooden shields very similar to the ones used by the violent protestors involved in the May 15 of 20172 demonstrations. Some loud detonations were heard? by PRPB officers and were audible in the video recordings reviewed by IC Jose Pujol. According to PRPB officers interviewed were cherry bombs used by the protestors to throw against the officers. Video images show the point in time when the protestors were throwing rocks, solid objects and even using slingshots‘ with projectiles thrown at the officers. Some of objects hit the officers®. The Police used loudspeakers to order the protesters to quit throwing objects at them and to give dispersal orders*®. Interviewed leaders of the group of protesters marching on Ponce de Leon, protesters, and observers from organizations present at that location claimed that the protesters had the right to continue marching through Ponce De Leon Avenue and that the Police had violated their right. The PRPB in turn claimed that the blockade of the Ponce De Leon Avenue was intended solely to protect the banks’ area that the past May 1*' of 2017 received damages for amounts totaling almost two million dollars ($2,000,000.00) and that they had the authority to restrict pass through Ponce de Leon Avenue. They further alleged that they were not impeding the protesters from their right to manifest their protest, because the protesters had access to the Stage area of the event via Roosevelt Avenue (that is located nearby and visible from that location). 2 As seen in Telemundo video live coverage at 12:22 PM, 12:23 PM, 12:43 PM, 12:44 PM, 12:45 PM 3 As heard in Telemundo video live coverage at 12:33 PM, CRADIC DVD # 7, Segment 2 4 As seen in CRADIC DVD # 8, Segment 2 5 As seen in Telemundo video live coverage at 12:30 PM, 12:34PM, 12:36 PM, 12:37 PM, 12:43 PM *As seen in CRADIC DVD #1, Segment # 3 and 4 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 5 of 80 TCA Assessment Report 2018 After a long wait, the line of Police Agents located near the Liberty building permitted access to the Ponce de Leon Avenue’ and protesters were able to continue Northbound, until they encountered another compact line of Police Agents before arriving at the intersection with Bolivia Street. PRPB Commissioner Henry Escalera claimed that the situation was becoming too intense (at the Liberty site) and he made a good faith decision and honored the negotiations the Police made in the field with observers of different organizations. PRPB Officer #21 explained that the PRPB’s Commissioner decided allowing the manifestation to pass through the Ponce de Leon Avenue, but they were going to observe their behavior. He said that as soon as they were allowed to go through, the protesters started to vandalize property. Approximately eight (8) or nine (9) glass windows were broken at the Liberty building and some others at the Plaza building)®. At that point in time PRPB Officer #1 decided to again to block Ponce de Leon Avenue, near the intersection with Bolivia Street, in order to prevent that more damages could ensue to properties in the area (reviewed video recordings corroborate a timing and a sequence of events in the movement of Police groups fully consistent with the explanation provided by PRPB Officer #21.) At this second blockade, protesters were observed throwing rocks, marbles, liquids that caused chemical burns against the Police agents there. They were also hitting the Police agents with sticks. Several Police agents were injured along with some of the protesters. The evidence shows how several individuals with their faces covered, using wooden shields and carrying sticks engaged in throwing rocks, pieces of concrete tiles and objects to the Police for prolonged periods of time. There was an individual (who appears to be Subject “Q”) using a speaker that was encouraging the protesters, who, after being boxed (encased) in that location for some time became visibly nervous and impatient. Once this group of well- organized individuals showed a clear intention to confront the Police, encouraged by the instructions from their loudspeaker started to push the line of Police Officers, the Police commenced using chemical agents against the protesters. The Police, despite that this was one of the findings on the Assessment of May 1%, 2017, ignored the instructions on Section 625 of the General Order, and did not provide any dispersal order this second time, didn’t inform the protesters of the violations that they were doing and did not inform them that they were about to use chemical agents against them. The Police, as already stated, acted in complete disregard of General Order 600, Section 625 and in complete disregard of the recommendation made in the Assessment Report prepared by IC Pujol related to the May 1°, 2017 events. Notwithstanding the aforesaid, as the action develops, it becomes evident that the use of force to repel aggression at that point was a reasonable reaction considering there was a Clear and strong threat of bodily injury against the officers and actual use of force by the protesters trying to overpower the Police. The individual vociferating on the loudspeaker encouraged the protesters to increase the level of violent protesters’ actions. Recorded 7 As seen in Telemundo video life coverage at 12:27 PM 8 CRADIC DVD #1, Segment 4 shows one broken window, Photograph of the building shows some broken windows Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 6 of 80 TCA Assessment Report 2018 images show clear signs that this was an organized operation by part of the protesters, not a product of a random incident®. One very important matter remains. The videos depict action that reflects the Police had no intention to allow the protesters to arrive to the Banco Popular area. It defies common sense why they allowed them to pass by the first blockade made at the Liberty building. From the strategic viewpoint of avoiding confrontation with a crowd, this action fails to make sense. While at the Liberty building blockade, the Police had better control of the situation and the protesters had ample space where, if dispersal orders were given, they could easily disband encountering less hazardous situations than they had at the second location where the limited dispersal opportunities and the use of chemical agents created a hectic and dangerous situation for hundreds of protesters of which, the majority was arguably not violent and did not represent an immediate danger. From the viewing of videotapes recorded at the scene, it surfaced that according to a news reporter from Telemundo, he was told by PRPB Officer #1 that it was the Governor of Puerto Rico who made the decision of removing the line of Policemen at the Liberty building allowing the protesters to go through (the reporter repeated this information in three different occasions) '°. According to the Puerto Rico Police Bureau Commissioner, Mr. Henry Escalera, it was him who made the decision, which he made “based on good faith.” The protesters and observers interviewed are of the opinion that this was part of a scheme with the objective of trapping the protesters there. The fact is that when it comes to protest policing, the Puerto Rico Police Bureau PRPB is confronted with two very important but sometimes conflicting goals. On one hand the PRPB has the obligation to preserve public safety and property, but at the same time they must allow demonstrators their Constitutional Right to free speech to communicate their messages. Therefore, it is essential for the PRPB to balance these objectives. The essence of this Assessment is to objectively analyze the decision of the PRPB to permit the protesters to continue their march along Ponce de Leon Avenue to the location where the second blockade was organized resulting in a bottleneck type restriction of movement of several hundred protesters. This area on Ponce De Leon Avenue, in the segment between Roosevelt Ave. and South of Bolivia Street, has limited exit areas which are the narrow entrance to Mexico Street or retreating all the way back on Ponce de Leon Avenue. ° Information covered by this complete paragraph is seen in Telemundo video life coverage from 1:00 PM through 2:10 PM and CRADIC video recordings *°As seen in Telemundo (Channel 2) video life coverage at 12:55 PM, 12:58 PM and 01:18 PM. This information is not Subject to corroboration and should be considered as “inadmissible hearsay evidence” in any judicial proceeding. Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 7 of 80 TCA Assessment Report 2018 As previously described, the situation at this second location heated up with the protesters being incited by the person using the loudspeaker asking them to continue charging toward the police line with their wooden shields, the throwing of rocks and marbles using slingshots and the use of skin burning chemical substances. This action resulted in PRPB having to utilize gas as well as rubber bullets to drive the protesters back after they charged against the police line. Analyzing how this PRPB tactic compares to best practices utilized by major city police departments throughout the United States when dealing with crowd control involving large numbers of protesters, it appears the Puerto Rico Police Bureau, by its actions, had three (3) objectives during that incident of the protest: e The intent to prevent demonstrations from interfering with the normal operation of the Banking area. e To control and limit access of the protesters marches to sensitive areas which in prior events were targeted by demonstrators for vandalism. e To display strength in police numbers and appearance to discourage violence. The objectives mentioned above are part of the “Command and Control” method of protest policing developed by the NYPD in the early 2000. Though not every major police department in the United States employs the “Command and Control” method of protest policing, events often lead strategy in that direction. The PRPB’s strategy to confine several hundred protesters to an enclosed area with minimal exit access may well have exacerbated the situation. The demonstration included passive protesters intermingled with those protesters who were bound to commit acts of civil unrest. There were many individuals who exercised their constitutional right to peacefully assemble and speak out for their cause. Unfortunately, there was another group of individuals who chose to engage in criminal acts, hurling xtaylor@example.net. When police used gas to attempt to disperse and push back the demonstrators, everyone was affected. In addition, according to observers, police failed to announce the disperse order or warning that less then lethal weapons were about to be deployed. Given the frenzied situation taking place on Ponce De Leon Ave, the police actions to deploy gas and other less than lethal weapons were within Bureau policy guidelines except for the failure to inform the dispersal order. The need to use force would have been significantly reduced had the police made proper announcements to the protesters and the PRPB had remained at first line in the vicinity of the Liberty building. The Puerto Rico Police Bureau will undoubtably have to deal with similar demonstrations in the future. Therefore, it is of vital importance for the Bureau to constantly reevaluate and assess its strategies on how to properly deal with demonstrations/protests with an eye towards improving their response to these events. The high-ranking members in the staff of the PRPB were asked about their specific knowledge of the May 1S Operation at Ponce de Leon Avenue regarding the blockade. They pointed out that the order to open the line in the Liberty Building and let the protesters pass by came directly from the Commissioner Mr. Henry Escalera. The conversation with these officers showed a sharp resent with the order that ended in the confrontation that subsequently took place with the demonstrators. As an example, PRPB Officer #1, the Incident 6 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 8 of 80 TCA Assessment Report 2018 Commander, stated that if his boss would not have given him the order to open the line at the Liberty building, he would not have done it. In the interview with Commissioner Mr. Henry Escalera, he took responsibility over the order to permit access at the Liberty Building blockade area to the protesters. None of the officers interviewed could explain the reason for the change as there was no meeting to discuss how this would affect, both tactically and/or operationally. Their consensus was that the Commissioner acted in good faith. It should be noted that hearsay information transpired to the media to the effect that the order to open the blockade came directly from Fortaleza (the Governor's mansion). The misinformation was that PRPB Officer #1, the Incident Commander, allegedly informed journalist Jose Estevez (Telemundo) that it was the Governor who gave the order to the PRPB Commissioner. The PRPB Commissioner was interviewed and he discredited the rumor stating that it was his own decision to open the blockade at the intersection of Ponce de Leon and Roosevelt Avenue to permit the protesters to go through. During the course of the assessment, participating high-ranking staff members of the PRPB provided contradictory accounts regarding the dispersal order. Some informed that dispersal orders were given before using chemical agents against the protesters while others asserted they couldn't hear them, and the rest admitted that the orders were not given. The Officers alleging that the orders were given argue that the sound equipment they used was so weak that it could not overpower the noise of the manifestation and the orders could not be heard. The known fact is that when previous dispersal orders were given at the Liberty building area, they were clearly recorded in the news reporters’ recordings. When confronted with this Specific fact, the officers claiming a second dispersal order was given alleged that the equipment they used at the second location, near Bolivia Street, was different and of much lower quality. It should be further noted that several video recordings for the Bolivia Street location were reviewed and in none of them the orders can be heard. Not even garbled sounds that could resemble words on a loudspeaker. Upon considering the totality of the evidence reviewed along with the testimonies heard and the analysis of electronic evidence (videos), IC José Pujol must conclude that the dispersal orders at the intersection of Ponce de Leon and Bolivia Street were not given to the protesters before using chemical agents against them, in violation of General Order, Section 625 of the General Order. Furthermore, high-ranking staff members of the PRPB have admitted that the PRPB did not place an agent behind the protesters in order to listen to and record the dispersal orders as required by Section 625 of the General Order, Subsections: II1.B.10: MPPR are responsible for warning demonstrators before force or coercion is used. IIl.C.3.d.viii: The Incident commander shall not use crowd dispersal techniques without first making repeated warnings citing the laws violated, requesting dispersal or risking arrest. If there is a dispersal order from the Court, it shall be read to the demonstrators. IIl.C.3.d.ix: Use loudspeakers to instruct dispersal and identify exit routes. Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 9 of 80 TCA Assessment Report 2018 1lI.D.3: Except in extreme circumstances that justify immediate action, PRPB cannot arrest or use of force first without first given warnings or commands under General Order Section 601. At this juncture, it is respectfully submitted that many of the errors pointed out as negative findings in the 2017 Assessment have been repeated again in 2018. Several directives of General Order 600, Section 625 again were not observed in spite of the fact that there were previous 2017 findings and recommendations pointing out that on May 1, 2017, no dispersal orders were given, no advice of use of chemical agents was provided and no advice of the violations being committed was provided. Additionally, many incidents of abuse of force were alleged during the interview of participants in the demonstrations, and some of them were corroborated by IC Jose Pujol reviewing video images and/or photographs, which will be covered in this report. REPORTING USE OF FORCE: The evidence reflected that the reporting and documenting of the use of force by PRPB is again grossly inadequate. The reporting of the Use of Force by the PRPB consisted of only four (4) PPR-854 “Use of Force Report” forms. Due to the large number of instances involving “Use of Force” during May 15, 2018, the reports provided by PRPB fail to comply with General Order Chapter 600, Section 605, “Reporting and Investigating Use of Force by Members of the PRPB,” and Section 625 “Crowd Management and Control’. During the Assessment of the event of May 1%, 2017 this failure to comply with the General Oder was also properly addressed and reported and recommendations were made. Accordingly, the present failure to comply with the General Order in the events of May 1%, 2018, is viewed as poorer than the reporting effort for the 2017 events, which by itself was manifestly inadequate. The review and analysis of video recordings and PRPB reports reveals that in many instances in which “Use of Force” was employed, it was not reported or was not properly reported as the General Order requires. This issue will be the object of additional comments further on in this report. In spite of the importance and the strict requirement of properly documenting the use of force by its personnel, the evidence showed that the PRPB did not properly comply with this factor, hence precluding by those means, to the degree of making it impossibility, to determine if the force used was within departmental guidelines. The considerations for these determinations were made by independent means, that is, video evidence, interviews, and available documentation. Given the discrepancies in the reporting of the number of incidents involving use of force vis a vis the evidence examined, it is obvious there was incomplete documentation by the PRPB of these incidents, particularly when force was used. Therefore, General Order Chapter 600, Sections 605 and 625 were not adhered to. None of the four (4) prepared PPR-854 forms provide any information about the events and arrests that happened in Santa Rita, Rio Piedras. Interviews with the PRPB personnel Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 10 of 80 TCA Assessment Report 2018 involved in the arrests informed about the arrests made there and the use of force employed, but the four PPR-854 presented to IC Pujol failed to inform about these events. By reading the four PPR-854 forms provided for inspection, a lay person would never know that something involving use of force occurred there. This is found to be completely unacceptable. The PRPB by not reporting most of the instances of Use of Force failed to comply with Section 625 of the General Order, Subsections: I1.B.11: Once activity is finished, officers will complete all necessary reports, including Use of Force reports. IlI.D.4 & 5. All uses of force must be reported. Ili.D.5.a. Officers who authorize use of force must complete a report. Upon concluding this Assessment Report, a copy of the same was provided to the PRPB pursuant to the Agreement. The PRPB reacted by informing they have twelve (12) additional Use of Force Reports (UOF)"’. Concerning these additional twelve UOF reports, the Monitor’s Office will review them by means of the projected reviews of the Federal Monitor Core Team that are now being conducted during the compliance phase and adhering to the methodology agreed by the Parties and my office. CT member, Mr. John Romero, lead UOF CT Monitor will conduct the evaluation. The undersigned will not review nor consider the aforesaid forms in this Assessment Report because such permissive action would send an erroneous message to the PRPB. The PRPB must assimilate that when a representative of the Federal Monitor, acting pursuant to an Order of the United States District Court, files a request for information such request most be strictly complied with. Failure to fully comply is tantamount to a breach of the Court’s Order under the Agreement that may carry significant consequences. ABUSE OF FORCE: The video recordings and photographs reviewed by IC Pujol revealed at least three clear incidents in which an excessive use of force was employed: e The first one is the force employed against Subject “L’”, who allegedly is a street seller of water and refreshments. Subject “L” informed that at the time the Police used the chemical agents at Ponce de Leon Avenue, the police were moving forward in his direction when they encountered and shot him at close range in 4. Originally only four (4) Use of Force Reports were provided. Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 11 of 80 TCA Assessment Report 2018 several occasions. He asserts he offered no resistance and that he was just trying to leave the area pulling some coolers in which he kept the merchandise he was selling. The action described is contrary to the mandates of Section 620 of General Order 600 (Rules and Procedures for the Use of Specialized Weapons by Members of the Specialized Tactical Units). The photograph of the victim shows at least nine (9) shots on his back. A SWAT supervisor informed that this type of ammunition is not allowed to be shot directly against individuals. He confided his belief that the injuries were caused by plastic balls, not rubber balls that are the ones that the Police uses. He stated that this type of ammunition could have been used by private security guards because when the victim was interviewed on TV, he stated that the agents were wearing gray clothes, not green clothing as SWAT uses. He Stated believing that, based on the dispersal pattern of the ball injuries shown in the photograph, the shots had to be fired from approximately ten yards away. Even in the improbable scenario that the event happened as the SWAT supervisor suggested, but never actually denied it could have been the PRPB who made the shots, the PRPB was responsible for the control of the area of manifestation, and hence failed by not avoiding/preventing a private security company to engage in an action that was not authorized, because they were not part of the Operational Plan and they were not part of the PRPB chain of command. No PPR Form 854 was provided for this incident of Use of Force. 10 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 12 of 80 TCA Assessment Report 2018 e The second incident one was the spraying of chemical agents made by a SWAT Agent against Subject “K”'?. The evidence shows that this person didn't represent a threat or a risk to property or the safety of any officer. She only displayed passive resistance that did not merit aggressive techniques. Section 604 of the General Order states that PRPB agents will avoid the use of pepper spray at a distance of less than three (3) feet of a person, unless the situation involves an imminent risk or threat of suffering grave bodily injury, and the use of the pepper spray is the only reasonable method to control the person and avoid the damage. According to Section 604, the minimum distance to use the chemical agent is six (6) feet away from the person, which was not the situation in this case: ?2 Names have been substituted by numbers in this Assessment to protect the identity of the individual. Only the Court will be provided with their names in a separate sealed document. 11 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 13 of 80 TCA Assessment Report 2018 No PPR-854 was provided for this Use of Force although it is patently clear a PRPB officer was involved in the same. e The third incident depicted in the sequence of photographs below involves aggressive action taken by PRPB officers against a bona fide member of the press while attempting to cover an arrest incident with his hand-held camera equipment. The evidence shows that the Metro newspaper reporter had properly identified himself and was complying with an agent’s instructions when he was struck with a baton in his back by another PRPB agent. No PPR Form 854 was provided for this Use of Force. Video taken by the reporter's camera: 12 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 14 of 80 TCA Assessment Report 2018 Just before and after being struck 13 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 15 of 80 USE OF CHEMICAL AGENTS: The evidence showed that the PRPB completely failed, like it did on the 2017 demonstrations, to adhere to its policies, prior to using chemical agents and less than lethal ammunition against the protesters, by not providing repetitive information to the protesters via loud speakers about: 1) the violations they were committing; 2) informing them of the dispersal order; 3) and informing them about the routes to be taken to leave the area. The evidence also showed that the PRPB failed by not placing a police officer in civilian clothes in the back of the protesters to listen'® to the required communications/orders from the police to the protestors. In sum, the PRPB should have followed the aforesaid mandated procedures and also had to comply with preparing a video recording of the required compliance with General Order Chapter 600 Section 625 (Manejo y Control de Multitudes). Such recordings also require the video documentation of the protesters’ response to police orders and warnings. It should be noted that these same findings were reported in the 2017 Assessment. Recommendations for compliance on these issues were provided by IC Jose Pujol, but, no positive improvement has been substantiated on the part of PRPB. Subject “M” explained that before the events of the May 15, 2018, he/she met with the PRPB along with Subject “C” and representatives of the labor unions. On behalf of the PRPB were present PRPB Officers #1 and #2, and other unnamed officers. They talked mainly about the march that would depart from the bridge known as “Dos Hermanos” and end in front of the Capitol building. Subject “M” informed reminding the PRPB Officers that the previous year they failed by not providing the dispersal orders and following all the steps that Section 625 mandates before making use of chemical agents against a crowd. Allegedly, PRPB Officer #2 responded that such Section of the General Order “es un disparate” (Spanish for “it is nonsense”). According to Subject “M’, such statement was made in front of PRPB Officer #1 and the other Officers. The evidence shows that PRPB Officer #2 was in a leadership position on May 1%, 2018, at the point in time when the chemical agents were used against the protesters. The fact that there was a failure to provide the “Dispersal Orders” along with the other requirements of Section 625 prior to deploying chemical agents against the protesters gives additional credence to the information provided by Subject “M” as it relates to how PRPB Officer #2 deals with Section 625, the one he continuously fails to comply with. Failure to follow this particular regulation deprived the protesters of knowing that chemical agents were going to be used against them in order to be able to take cautionary measure to disperse before these were deployed. Arrests and related Judicial Procedures: On a document dated May 17, 2018, PRPB Officer #1 informed that during the Manifestations of May 1%, 2018, nineteen (19) individuals were arrested. The Report 13 To provide assurance the dispersal order was heard. Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 16 of 80 TCA Assessment Report 2018 provides the names of the arrestees, the crime/s they committed and the names of the Agents that performed the arrests. The crimes listed in the report are: Causing damages to property, Obstruction of Justice, Grave Aggression, Weapons Law, Arson and Robbery. Statistics provided by the Office of Court Administration include information up October 10, 2018, which revealed that only eight (8) of the arrestees have been charged of any crime. Out of the eight (8) charged arrestees: e One (1) of them was cleared of the charges by a Judge, who found “No Cause” against him in a Rule 6 hearing. No appeal was submitted. e The other seven (7) arrestees: one (1) has trial scheduled for December 10, 2018, four (4) have preliminary hearings scheduled for November 30, 2018 and the remaining two (2) have a Status Conference scheduled for January 15, 2019. The fact that only eight (8) of the nineteen (19) arrestees have been charged with any crime before a Court, and that one (1) of them has already been cleared by a Judge, could create doubts of if some of the other eleven (11) not charged arrestees could have been arrested without enough evidence to sustain charges in a Court of Law. The PRPB provided documentation in relation to only ten (10) of the arrestees, in which all of them the PRPB Supervisor found that the arrests were made with probable cause. Three (3) out of the ten (10) arrestees were treated at medical centers for small injuries and traumas, as informed in the provided documentation. “PLANES DE TRABAJO” (OPERATIONAL PLANS): The PRPB provided to the TCA an Operational Plan identified as “PLAN DE TRABAJO, 1 DE MAYO" (Spanish for “OPERATIONAL PLAN, MAY 18"). This Operational Plan (OP), prepared by PRPB Officer #1, is addressed to the PRPB Commissioner, and is a general OP which PRPB Officer #1 complemented with a series of OPs as follows: e Annex A—SAN JUAN e Annex B—F.U.R.A. e Annex C —- PATRULLA DE CARRETERAS (“ROAD PATROL DIVISION”) e Annex D — PPR, which consists of several PRPB blank forms that could be used during the Operation, and additionally provides OPs for the following regions: e Mayaguez e Aguadilla 15 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 17 of 80 TCA Assessment Report 2018 e Carolina e Ponce CRADIC (not a region, it is the video recording Division of the PRPB) The OP and its Annexes were analyzed by IC Jose Pujol, who found that they lacked most of the information required by the Section 625, Chapter 600 of the General Order. A detailed analysis of the provided OPs reflected varying degrees of deficiencies, among them: e The Operational Plan (ANNEX A — SAN JUAN) prepared by PRPB Officer #2 informed that there were two (2) Command Centers: 1) Command Center located at the Jose Miguel Agrelot Coliseum 2) Operational Center located at the Banco Popular Center building. During the interview of PRPB Officer #21, information disclosed revealed that they had two (2) Command Centers and one (1) Observation Post that were located at: 1) near the Jose Miguel Agrelot Coliseum (Command Center) 2) at the FUSION Center (PROB HQ) (Command Center) 3) at the Banco Popular Center building (Observation Post). PRPB officers interviewed confirmed the Command Post located at the Banco popular Center only as an Observation Post. It should be noted that at page #3 of the “Plan de Trabajo Para Manifestacion Grupos Sindicales 1ro de mayo de 2018” (“Operational Plan for the Manifestation of Labor Unions May 1 of 20182) signed by PRPB Agent #10, dated April 23, 2018, Agent #10 assigned a Sergeant to be located at the “Command Post (Edificio Popular Center)”. TCA Observer #1, who was present at the FUSION Center (PRPB Headquarters) during the event, assured that there was not any decision making at the FUSION Center, which in his opinion was not a Command Center, only an Observation Center. The TCA’s Office is highly concerned with the misinformation that the FUSION Center was the Command Center of the Operation. Based on the aforesaid misinformation the TCA assigned Observer #1 to be present at that location. The aforementioned misinformation was re submitted during the interview of PRPB Officer #21 (a high ranking PRPB Officer) who described the Popular Center Building as an Observation Post. The official PRPB “Plan de Trabajo” (Operational Plan) defined such location as a “Command Post’ while another Official PRPB “Plan de Trabajo” (“Operational Plan) portrayed such location as an Operational Center. 16 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 18 of 80 TCA Assessment Report 2018 The Operation Plan prepared by PRPB Officer #1 identified the Incident Commander for the Operation as Officer #1. The part of the Operational Plan prepared by PRPB Officer #2 identified the Incident Commander for the Operation as PRPB Officer #1. During the interview of PRPB Officer #1, he identified himself as being the Incident Commander of the event and stated that during the event he made decisions as the Incident Commander. At the same time, when interviewed, PRPB Officer #2 stated that he crafted the Operational Plan and he directed the plan (in the field). TCA Observer #2, who spent a considerable amount of time in the Milla de Oro scenario, explained that he spoke to several Police Agents there and all of them acknowledged that the Incident Commander was PRPB Officer #2. Moreover, TCA Observer #2 observed that PRPB Officer #2 was the Officer acting as Incident Commander at the Ponce de Leon Ave., the main scenario of the confrontation. The aforementioned two statements, and the facts learned from observation by TCA Observer #2, indicate that it is likely that there were two PRPB Officers directing the plan, in other words, acting as Incident Commanders. This multiplicity of Incident Commanders can be detrimental for any Law Enforcement Operation. The PRPB must identify with absolute certainty which officer will be the Incident Commander and plainly advise that the Operational Plan will be strictly followed. The General Operational Plan and its Attachments did not point out which part of the Milla de Oro was off limits for the protesters to march. The OP specifically fails to explain that the march coming from Ponce de Leon Avenue would not be able to pass through the intersection of Ponce de Leon and Roosevelt Avenue where the Liberty building is located. The OP did no state there would be a police blockade at the intersection of Ponce the Leon Avenue with Roosevelt Avenue to divert protesters towards the public expression platform placed at the intersection of Munoz Rivera with Roosevelt Avenue. The interviews to the Incident Commander (PRPB Officer #1) and PRPB Officer #2 revealed that they had reached several critical decisions related to the Operational Plan previous to the event, which were not provided for or covered in the official Operational Plan (“Plan de Trabajo”) of this main event. This defeats one of the main purposes of making an Operational Plan which is precisely to define all actions to be taken in each of the areas covered by the plan, impose all officers and enlistees prior to the event of what is expected and what line of action is predetermined for each situation. In other words, everyone must be fully cognizant of the Strategy in place. A good OP provides for a procedure to follow (protocol) in cases of unexpected situations. It also provides for a meeting prior to the event, the chain of command for every location. Persons in charge of collecting the evidence at the different points where confrontations are expected and most important of all, a good 17 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 19 of 80 TCA Assessment Report 2018 system of communications to make information flow to the officer in command (Incident Commander). TRAINNING According to the information received from the PRPB, nobody in the PRPB had been trained on the General Order, Chapter 600, Section 625, titled “Manejo y Control de Multitudes” (Spanish for “Crowd Management and Control”) when the May 1, 2018 events occurred. The PRPB informed that they coordinated and worked an external course titled “Field Force Operations” issued by the Center for Domestic Preparedness of F.E.M.A. which was offered in the Spanish language. This course included the necessary elements, according to the best practices, about how to operate in crowd control situations. Personnel from DOT, Arrests and Extraditions, SWAT and the Auxiliary Superintendence in Education and Training participated in this Course. They accomplished the certification of sixteen (16) instructors and approximately two hundred (200) DOT personnel. Additionally to this Course, they were trained in the REA-111 “Civil and Human Rights” and DOT-603 “Use and Handling of the Rigid Baton”. The PRPB alleged that despite there is no personnel at this time directly certified in the General order Chapter 600 Section 625; the personnel of the DOT, on May 15, 2018, had within their knowledge and abilities several trainings that qualified them at individual and group level (Operator in Crowd Management and Control), therefore, made them able to operationally handle any situation of risk that would be necessary to intervene. This information has been corroborated by a member of the Federal Monitor team. ESTABLISHING CONTACT WITH THE EVENTS’ ORGANIZERS: The evidence showed that the PRPB made some attempts to contact the organizers of the demonstrations, and that in one instance they did meet with the organizers of one of them. These attempts and the actual meeting with some of the organizers reflects some improvement of the PRPB’s performance on this area, comparing to failures found by a prior Assessment related to events occurred in year 2017. LEGAL ASSESSMENT: This Assessment encountered three different claims about a legal issue: 18 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 20 of 80 TCA Assessment Report 2018 Interviewed leaders of protesters, protesters, and observers from civic organizations claimed that the protesters had the right to pass through Ponce De Leon Avenue and that the Police violated their right. Section 625 of the General Order, Part Ill.C.2.d states that: “No supervisor shall interrupt a constitutional activity or demonstration before the demonstrators act illegally or demonstrate aggressive conduct”, and the evidence (video recordings) shows that the blockage of the Ponce De Leon Avenue was in place before any illegal or aggressive conduct was demonstrated. The Police claimed that the blockage of the Ponce De Leon Avenue was intended solely to protect the banks’ area that the past May 1*' of 2017 received damages for an amount near two million dollars ($2,000,000) and that they had the right to restrict the pass through the avenue because they weren’t impeding the protesters to manifest their protest, because the protesters had access to the stage area of the event via the Roosevelt Avenue (that was located nearby and was visible from that point). The PRPB did not inform when they exactly decided to create the blockage of the Ponce De Leon Avenue, but it was previous to the event and it was not documented in any of the reports provided to the Monitor's Office. Due to the complexity of this legal issue, the TCA authorized IC Jose Pujol to refer this legal matter to a Counsel who is part of the TCA’s Core Team, Antonio Bazan, Esq. His Legal Assessment is included as a part of this report as an Appendix. TCA Reports under the Agreement Paragraph 227 of the Agreement: “In order to assess and report on PRPD's implementation of this Agreement and whether implementation is having the intended beneficial impact on policing and community trust in Puerto Rico, the TCA shall conduct the reviews specified in this Agreement; shall review PRPD policies, training material, protocols, and programs developed and implemented pursuant to this Agreement; and conduct such additional audits, reviews, and assessments as the TCA or the Parties deem appropriate, or the Court, consistent with this Agreement and the dismissal order.” 19 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 21 of 80 TCA Assessment Report 2018 Paragraph 250 of the Agreement: “During the first four years, from the Appointment Date, the TCA shall file with the Court; written public reports every six months that shall include: a) a description of the work conducted by the TCA; b) a listing of each detailed step in the Action Plans and its timeframe indicating whether the timeframe has been met, and whether the Commonwealth of Puerto Rico is making satisfactory progress toward implementation of the Agreement by rating PRPD in full, partial, or non-compliance steps in the Action Plan; c) the methodology and specific findings for each review conducted, where appropriate, and redacted as necessary for privacy concerns. An un-redacted version shall be filed under seal with the Court and provided to the Parties. The underlying data for each audit or review shall not be publicly available, but shall be retained by the TCA and provided to either or both Parties upon request; d) for any detailed steps that were reviewed and found not to have been fully implemented in practice, the TCA’s recommendations regarding necessary steps to achieve compliance; and e) a projection of the work to be completed during the upcoming reporting period and any anticipated challenges or concerns related to implementation of the Agreement.” Introduction This is the Technical Compliance Advisor's (“TCA”) Report (“Report”) for the Court and the Parties in the Agreement for the Sustainable Reform of the Puerto Rico Police Bureau (“Agreement”) on the demonstrations and incidents on May 1, 2018. The Report assesses the Puerto Rico Police Bureau’s (“PRPB”) response to these events. Pursuant to the Court's instructions to assess events and report on findings, Docket 831, dated May 4, 2018; “The Court hereby designates retired United States special agent and TCA investigator Jose Pujol to conduct an independent evaluation and assessment, followed by a report, of the May 1, 2018 (Worker’s Day) demonstrations. The parties shall fully cooperate with him and immediately agree as to the evaluation’s methodology. See, e.g., Order of April 26, 2017, Docket No. 511 at 2, lines 4-7”. 20 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 22 of 80 TCA Assessment Report 2018 Given the Court's instructions to assess events and report on findings, the TCA has assessed the PRPB’s response to the demonstrations and incidents involving the PRPB protesters on May 1, 2018 (Worker's Day). The focus of the assessment is the PRPB’s compliance with the “Agreement for the Sustainable Reform of the PRPB” (“Agreement”) and the Civil Rights of citizens pursuant to the Constitutions of the United States and the Commonwealth of Puerto Rico with special attention to policies and trainings on policing of mass demonstrations, command and control, as well as communications and the use of Information Technology (“IT”). Under the Agreement, the TCA has the authority to assess and report on whether the provisions of this Agreement have been implemented resulting in constitutional and effective policing, increased professionalism, and increased community trust. Under the supervision and orders of the Court, the TCA conducts its duties including the duty to report and assess, review policies and trainings, and conduct such additional audits, reviews, and assessments as the TCA or the Parties deem appropriate, or the Court, consistent with the Agreement. This assessment report covers and evaluates actions taken before, during and after the above described events, regarding the following areas of the Agreement: Supervision and Management; Equal Protection and Non-discrimination; Use of Force; Crowd Control; Search and Seizures; Arrests and Citations; Training and its implementation; Community Engagement and Internal Investigations, Civil Complaints and Discipline section. This report has been prepared by Investigative Consultant (IC) Jose L Pujol using: e His Law Enforcement training and experience as a federal Special Agent for approximately twenty-one years. e His knowledge as Defensive Tactics Instructor (certified in 1997 by the Federal Law Enforcement Training Center located in Glynco, Brunswick, Georgia). e The Agreement for the Sustainable Reform of the Puerto Rico Police Department. The Puerto Rico Police Department's General Orders. IC Jose Pujol based on his law enforcement experience, training, knowledge of the Agreement for the Sustainable Reform of the Puerto Rico Police Department and the Puerto Rico Police Bureau's General Orders, all the evidence and facts collected during the Assessment, all the work performed (as described above), the support and advice received from all the TCA team, formulated findings and recommendations that are fully described in this Assessment Report and hereby submitted. 21 Case 3:12-cv-02039-GAG Document 1002-1 Filed 11/07/18 Page 23 of 80 TCA Assessment Report 2018 Section I: Crowd Control Policies |.A Historical Reference: Crowd Control Policies Prior to the Agreement Under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (re- codified as 34 U.S.C. § 12601) and the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act, 42 U.S.C. § 3789d, in 2008, the United States Department of Justice (USDOJ) initiated an investigation of an alleged pattern or practice of use of excessive force, unconstitutional searches, and discriminatory policing by the PRPD. In September 2011, USDOJ issued a written report with findings that the PRPB engaged in a pattern of using force to suppress the exercise of First Amendment rights.'4 The following is a summary of the two main findings of the USDOJ investigation
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