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Justice Dept Lawsuit on Police Use of Force:
Even though it was filed in December, 2012 along with the lawsuit alleging excessive force by the Portland Police Bureau (PPB), the Settlement Agreement between the US Department of Justice (DOJ) and the City of Portland (PPRs #58-61) was still not in place as of April 2014. Though much of the delay was caused by efforts to appease the Portland Police Association (PPA), a significant hitch came when US District Court Judge Michael Simon, after hearing two days of passionate testimony from the community in February, insisted on March 24 he be granted continual participation in the process. The Albina Ministerial Alliance (AMA) Coalition for Justice and Police Reform and others believe the judge has the ability to order the parties to report to him, but Simon asked the four entities to devise a means for him to do so without triggering legal action from the PPA. Simon's caution underscores the greatest threat to police accountability in Portland-- the power of the police "union" (also see article in this issue, as well as"Rapping Back"). The Fairness Hearing, which lasted almost thirteen hours, included input from the DOJ, the City and the AMA Coalition, but not the PPA. Over 50 groups and individuals spoke, with numerous tales of mistreatment due to mental illness, race and economic status. Emotionally gripping testimony included several people describing how they handed sleeping bags to homeless people only to have the police take them away immediately. The DOJ spent 90 minutes congratulating themselves for their investigation and asking their paid expert about whether he supported the Agreement (which he helped frame). That "expert" claimed no data show the PPB engages in racial profiling, yet days later, US Attorney Amanda Marshall admitted Portland Copwatch provided such data-- but they couldn't prove a constitutional violation (Oregonlive, February 21). The DOJ also cynically called on the president of Oregon's National Alliance on Mental Illness (NAMI), knowing members of the Multnomah County chapter were going to testify for a stronger Agreement. NAMI's president revealed the walk-in/drop off centers for people with mental illness, a key provision of the Agreement (listed as sure to be in place by mid-2013) are "aspirational" and likely to never materialize. DOJ also brought in the head of Cascadia Behavioral Healthcare, who talked about providing mental health professionals to ride in Mobile Crisis Unit cars, but failed to mention that Officer Chris Burley (who reportedly punched Keaton Otis in the face before police shot Otis 23 times--PPR #51) is on Cascadia's board. Deputy City Attorney Ellen Osoinach spoke for half an hour, touting a lack of force complaints and other ambiguous information that proved nothing. The AMA Coalition made clear that while not objecting to the entry of the Agreement, they had serious reservations. Groups testifying included the NAACP, ACLU, Center for Intercultural Organizing, League of Women Voters, Mental Health Association of Portland, and National Lawyers Guild. Three Portland Copwatch members spoke, prompting just one question: Judge Simon wanted to know how he could make changes since his only role was to accept or reject the Agreement as a whole. PCW's Dan Handelman, noting the judge had already allowed members of the public to approach the bench at earlier hearings when he did not have to, and granted "enhanced amicus" status to the AMA Coalition without legal precedent, urged Simon to be creative. A number of individuals testified and self-identified as having mental illness or other disabilities. One man of color said he might have autism, adding he wants to have kids some day, but doesn't want them in a world where they won't be safe. A number of African American, Latino and mixed race individuals talked about fears their kids would not come home at night because of the police. The families of James Chasse, killed in 2006 (PPR #40) and Aaron Campbell, whose 2010 death led to the DOJ's investigation (PPR #50) testified. Attorney Tom Steenson, the lawyer for the Chasse and Campbell families, objected to the Agreement allowing the DOJ to act as the "Monitor" to enforce its terms while also being the Plaintiff. The Human Rights Commission was to testify, but instead used a news release to call for public participation about changing the Agreement. The Commission on Disabilities also signed up, but chair Kristi Jamison chose to speak for Empowerment Initiatives, her nonprofit. The one city committee presenter was Citizen Review Committee chair Jamie Troy, who outlined difficulties of both the 21-day appeal hearing timeline imposed by the Agreement, and the "reasonable person" standard of review that has tied their hands for years. Unfortunately, the City, PPA, and DOJ, all indicated there were "legal and practical" hurdles to making amendments. Counsel for the AMA Coalition noted "the time to [make changes] is now" after the DOJ's Adrian Brown, about to head to Washington, DC for one year, gave a speech about hearing the community's collective voice and asking to walk with us on this leg of the journey. Judge Simon followed up by submitting 13 questions to the parties, at least eight of which reflected concerns raised by PCW. Although he did not include our highlighted concern that people involved in deadly force incidents cannot file appeals, it forced public responses from the City and the PPA (and the DOJ) that the community had not heard before. His questions addressed: problems with ongoing oversight of the Agreement; the drop-off/walk-in centers; the CRC's standard of review and reduced appeals timeline, and wondering whether the overall Independent Police Review Division (IPR)/CRC system can address the excessive force DOJ found against people in mental health crisis. The four parties responded as follows: • The AMA Coalition was the only party to recommend amendments to the Agreement. • The DOJ is not opposed to reforms that make the oversight system in Portland stronger, good news since the Agreement says any changes to such systems must conform to the terms of the Agreement. • The Police Association argued that changing even one word of the Agreement could lead to a grievance/unfair labor practice/lawsuit. • While echoing the PPA's claim, the City also undermined it by stating they would immediately work to extend the restrictive timeline imposed on CRC (article). This could me an that everything won't be locked in place for five years as PPA gnashes their teeth and the DOJ has final say. On the other hand, the City also said they are not willing to change the CRC's "reasonable person" standard for reviewing appeals. Unsurprisingly, the City used the January 2014 changes made to IPR to persuade the court they're in compliance-- even though the changes were inadequate. The PPA is also using their contract as "facts on the ground," noting the new contract is in place until June, 2017-- without mentioning they can open up bargaining at any time during a contract's tenure. One of the City's worst responses was to public testimony about the lack of discipline for officers in excessive and deadly force incidents. The City said over 40 officers were fired or quit while under investigation. But those officers were fired for lying, stealing, cheating and sexual misconduct-- not use of force. Officer Ron Frashour, who killed Aaron Campbell, wasn't successfully fired (he's on paid leave while an appeal is pending--PPR #58); and Dane Reister was fired for a reason other than using a shotgun which permanently wounded an unarmed man in emotional crisis (it was for loading his gun with the live rounds, not deploying those rounds--PPR #61). At the March 24 hearing, Judge Simon worried he would only hear updates before late 2017 if the DOJ accuses the City of being out of compliance. His reluctance to trigger a grievance by the PPA, even though he feels nothing in their contract prohibits court hearings, underscores concerns made clear in the PPA's filings: PPA influence on City policy is to blame for the system's failures, including hampering IPR's power. Perhaps as a counter-balance to his deference, the judge publicly shamed PPA President Daryl Turner for publishing a statement putting down the Fairness Hearing testimony as unwarranted and anti-police. The judge berated Turner for asking why someone who hasn't walked in an officer's shoes should tell them what to do by stating that is part of being in a democracy. Turner is so wrapped up in his ideology, he thought the Judge was paying him a compliment (Portland Mercury blog, February 21). The Judge's gambit, saying the entire Agreement is inadequate because it does not allow him enough involvement, is in part based on the truism that while the US government, City, and PPA could have changes in leadership (and priorities) over the five years the Agreement will be in place, he is appointed for life. While not perfect, the judge calling the parties in to report is good, given he said he wants to hear if the AMA Coalition thinks the City is not in substantial compliance. However, even if he holds these hearings, he will not be able to direct the parties to do anything. But he can ask questions, and as we've seen, forcing answers to questions can at least shed light on where problems really exist.
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May, 2014
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Portland Copwatch Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.
People's Police Report
#62 Table of Contents
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