U.S. District Judge Michael H. Simon noted Portland’s case is the only one among about 10 pending civil cases brought by the federal government against police agencies that doesn’t take the form of a consent decree and doesn’t have a monitor.
“Well, here we are nine years later, we still have issues,” Simon said. “I wonder though whether there might be a role for a court-appointed monitor now.”
Simon brought up the idea as city and federal officials head into mediation before another federal judge next month to address an impasse on stalled police changes after the Justice Department identified inappropriate police use and management of force during protests last year.
Up to this point, lawyers for the city and the Justice Department have tried to work out details of required police reforms on their own while reporting periodically to Simon.
A court monitor would what have extended power to impose accountability measures on the Portland Police Bureau.
The settlement followed a federal investigation that found Portland officers used excessive force against people with mental illness. It called for widespread changes to officer use-of-force and Taser policies, a restructuring of police crisis intervention services and quicker investigations into alleged police misconduct, among other things. Under the current agreement, the city must maintain substantial compliance with all parts of the settlement for at least one year after it gains compliance with all the agreement’s provisions before the court would relinquish oversight.
Simon said he recognized that city officials specifically negotiated not to have a consent decree and court monitor when drafting the settlement in 2012. Simon formally adopted it two years later.
Consent decrees are court-approved deals between the Justice Department and local governmental agencies that create a road map for changes. It provides for judicial review and allows for prompt enforcement if a police agency doesn’t comply with the terms.
But the judge said the settlement can be amended: “Maybe to at least try to protect the progress that has been made and to prevent the slippage going forward, maybe it might be a good idea now. Maybe it’s not. … I’d like you all to give thoughts to that.”
At the start of the six-hour status hearing before Simon, Justice Department lawyers outlined myriad problems they found with Portland police use of force during mass racial justice protests last year.
Those included, they said, no inventory of munitions used; officers conflating passive resistance like slow walking with active aggression to justify force against protesters; and an overreliance on broad warnings issued via sound trucks before using force on crowds when more direct warnings to individuals would have worked.
Perhaps most troubling, Justice Department civil rights attorney R. Jonas Geissler said, police supervisors failed to evaluate their officers’ use of force and instead frequently issued “blanket affirmations of force with no analysis.”
“We found that the bureau failed to conduct an open, self-critical and detailed analysis of the 6,000-plus use-of-force applications during the 2020 protests despite the request by the DOJ to do so,” Geissler said.
“To date, there has not yet been an adequate, sufficiently critical analysis of the police 2020 response” to protests, he told the judge.
The federal lawyers also shared accounts of the bureau’s Police Review Board and how they said it failed to hold police accountable for violating use-of-force policies. The board recommends discipline for officers.
Police command staff made “fundamentally flawed representations” of crowd control policy to the board, Geissler said.
The Justice Department has demanded the city take nine steps to meet the terms of the settlement. Those include equipping all officers with body-worn cameras, hiring a civilian to lead the police training division, contracting with an outsider to do a full assessment of police crowd control training and identifying and holding accountable supervisors of the Police Bureau’s now- defunct Rapid Response Team for not adequately analyzing their officers’ use of force.
Heidi Brown, chief deputy city attorney, said the city agrees in principle with many of the suggested remedies and hopes to reach a resolution through mediation to try to regain the trust of the community.
Brown said she’s “very optimistic” there will be agreement on equipping all officers with body cameras and that the city is “very interested” in the idea of hiring a civilian to oversee Portland police training, a so-called “dean” of training.
The judge said he wants both sides to return to court on Nov. 9 to report on the outcome of the mediation.
If the city and Justice Department can’t agree on ways for the city to adhere to the settlement, then the court could intercede and has a “wide panoply of equitable enforcement authority to remedy the violations of the agreement,” Simon said.
Dennis Rosenbaum, the city-hired compliance officer for the settlement, said he’s also concerned by the lack of “any significant progress’' in the last nine months on transitioning to a new independent community oversight board to handle investigations of police, a concept approved by voters in November.
The city just selected volunteers to sit on a commission to determine the future makeup of the new oversight board and how it would operate, but the group hasn’t met yet.
Attorney Anil Karia, attorney for the Portland Police Association, told the judge that the Police Bureau must be properly funded and staffed to meet the requirements of the settlement.
“Our officers did their best under extreme circumstances in 2020,” he said.
Going forward, the city must “set these officers up for success not failure," Karia said.
He argued it takes sufficient numbers of sergeants and analysts to properly review officers’ uses of force as required by the settlement.
“Our City Council needs to hear this,” the union lawyer said. “The Police Bureau needs to be funded adequately to meet the needs of the settlement.”
Much of public testimony centered on calls for the city to adopt restrictive policies on police body cameras to ensure officers can’t view footage before they write reports, particularly after using deadly force.
Kristen A. Chambers, a lawyer for the Albina Ministerial Alliance’s Coalition for Justice and Police Reform, said the group would only support body cameras if such a protocol was in place.
The Rev. LeRoy Haynes, chair of the coalition, said distrust between the community and the Police Bureau has grown since the videotaped killing of George Floyd by a police officer in Minneapolis. The killing led to mass protests in Portland and around the world.
“Citizens have come to believe there’s a double standard in the application of the law when it comes to police accountability,” he said. “We believe in police reform, not in abolishing the police. We need the police. We need a certain kind of police. We believe in having the right kind of police officer who respects the citizens, whatever race or gender or faith."
The coalition was founded in 2003 after the Portland police fatal shooting of Kendra James in Northeast Portland. The coalition includes Portland Copwatch, Disability Rights Oregon, the Portland chapter of the National Lawyers Guild and Oregon Action.
Several people also criticized the Police Bureau’s hands-off approach Sunday to roving brawls between far-right Proud Boy demonstrators and far-left antifa who fired paintball guns at each other and got into physical skirmishes along Northeast 122nd Avenue. Police kept out of view and didn’t step in to break up the fighting.
“Many of my colleagues and I have raised concerns that the Portland Police Bureau has been too brutal,” said Seemab Hussaini, a local activist who focuses on supporting Muslim-Islamic refugee communities. “And they have now swung the pendulum the other way, to not police at all.”
Others called on the city to expand and provide more support to the Portland Street Response, which dispatches a firefighter paramedic paired with a mental health therapist to certain 911 calls involving people who are homeless or in mental health crisis. The program is now limited to the Lents neighborhood.
Rochelle Silver, a psychologist with the Mental Health Alliance, along with Dan Handelman of the local watchdog group Portland Copwatch and others told the judge they’re concerned the city is “merely checking the boxes to get out from under” the settlement.
“The city has never really acknowledged any responsibility nor has the PPB. They see the settlement agreement as an expensive annoyance,” Silver said. Some members of City Council, she added, have criticized the settlement.
City Commissioner Dan Ryan addressed the court as president of the council. Mayor Ted Wheeler, who serves as police commissioner, was out of town with his daughter, the mayor’s office said. He expressed the council’s serious commitment to the settlement and working to rebuild trust between police and the community.
Attorney Ashlee Albies, who also represents the Albina Ministerial Alliance’s coalition, told the court she’s thankful for the federal oversight.
“It makes you wonder what will happen when the DOJ and court is no longer here to access compliance,” she said.
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