City Challenge to Annual Court Hearings Jeopardizes DOJ Agreement

Albina Ministerial Alliance Coalition for Justice and Police Reform
c/o Allen Temple 4236 NE 8th Avenue, Portland, Oregon 97211

*CITY CHALLENGE TO ANNUAL COURT HEARINGS JEOPARDIZES DOJ AGREEMENT ON IMPROVING POLICE PRACTICES *

The Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC) strongly condemns the City of Portland’s refusal to agree to annual status hearings on the Settlement Agreement with the United States Department of Justice (DOJ). The Court has indicated that, absent such hearings the Court will reject the Agreement. The City’s refusal to participate in the proposed annual hearings — in which the Court’s authority is limited to receiving information and merely asking questions of the parties — is unjustified, and is a clear rejection of the Court’s continued authority over this case.

The City has spent countless resources negotiating the Agreement with the DOJ to resolve the DOJ’s lawsuit alleging the Police Bureau (PPB) engaged in a pattern or practice of using excessive force on individuals with actual or perceived mental illness, in violation of the Fourth Amendment to the U.S. Constitution. Shortly after the suit was filed, the City joined the DOJ in asking the Court to enter an order approving the Settlement Agreement and to conditionally dismiss the litigation pending the City’s implementation of the Agreement.

The AMAC, granted enhanced /amicus curie/ status in the lawsuit, has worked in good faith to support the entry of the Settlement Agreement, despite concerns with the Agreement itself. The AMAC participated in mediation with all parties, resulting in a Collaborative Agreement with the City and the DOJ in which it agreed not to object to entry of the Agreement. Likewise, the Portland Police Association (PPA), which was granted intervener status, entered a Memorandum of Understanding (MOU) with the City and the DOJ, in which it too agreed to withdraw its objections.

In a March 24, 2014 hearing, the Court indicated that while the Agreement was substantively fair, adequate, and reasonable, it did not find it to be _procedurally_ adequate. Specifically, the Court expressed concern that, once the Agreement was entered, more than three years would lapse before it heard from the City and the DOJ regarding its implementation. The Court therefore proposed annual hearings, at which the parties would report to the Court on the implementation of the Agreement. The City and PPA will not agree to participate in these annual hearings.

The AMAC has grave concerns regarding the City’s and PPA’s refusal to participate in annual hearings, despite their knowing this may result in the rejection of the Agreement. “The Community wants to see the Court’s limited oversight over the implementation of this Agreement. The symbolism of the parties appearing in Court just once a year before a neutral and consistent observer, to give a status update, demonstrates the parties’ commitment to transparency, and to the checks and balances of our system of government,” said Dr. LeRoy Haynes, co-chair of the AMAC. “The limited review on the status of compliance sought by the Court should be welcomed by the City, given the City’s assertion that it is already in compliance and on track with the implementation of the Agreement,” said Dr. T. Allen Bethel, co-chair of the AMAC.”The City has been operating under the expectation that the Agreement will be entered; it makes no sense to negate all the work that went into negotiating and implementing the Agreement by rendering it unenforceable,” Dr. Bethel said.

The City’s refusal to agree to the hearings, now requires that the parties submit further briefing on the issue to the Court. The AMAC sincerely hopes the City will reconsider its untenable position, before spending more of the public’s resources litigating a case involving the excessive use of force against the most vulnerable members of our community. “The failure of the Mayor, the city commissioners, and the PPA to accept Judge Michael Simon limited annual review represents a missed historical opportunity to unite our diverse communities and take a leap in resolving the rift in our city between the police and the community, particularly communities of color and person with mental disabilities,” added Rev. Haynes.

The AMA Coalition for Justice and Police Reform is working toward these five goals:
1. A federal investigation by the Justice Department to include criminal and civil rights violations, as well as a federal audit of patterns and practices of the Portland Police Bureau.
2. Strengthening the Independent Police Review Division and the CitizenReview Committee with the goal of adding power to compel testimony.
3. A full review of the Bureau’s excessive force and deadly force policies and training with diverse citizen participation for the purpose of making recommendations to change policies and training.
4. The Oregon State Legislature narrowing the language of the State statute for deadly force used by police officers.
5. Establishing a special prosecutor for police excessive force and deadly force cases.


Federal justice officials, city of Portland can’t agree on judge’s request for annual hearings on police reforms

From The Oregonian, May 28, 2014

Two months after a federal judge told Portland city attorneys and federal justice officials that’s he not likely to approve their negotiated settlement on police reforms without requiring annual status hearings in his court, the parties to the case haven’t accepted the idea.

“Unfortunately at this time, we’re not able to report we have reached an agreement,” said Michelle Jones, attorney for the U.S. Department of Justice’s civil rights division.

Jones and attorneys for the city, the Portland Police Association and the Albina Ministerial Alliance’s Coalition for Justice and Police Reform spoke by phone to the judge during a brief conference Friday afternoon.

Deputy city attorney Ellen Osoinach echoed Jones’ report to U.S. District Court Judge Michael H. Simon.

The judge gave the attorneys until June 24 to submit legal briefs outlining their positions on his request and until July 2 to submit any responses to the initial briefs filed.

Simon said he doesn’t anticipate hearing any further oral arguments and intends to issue a written ruling sometime after July 2 whether he’ll accept the negotiated settlement on Portland police reforms.

The court’s involvement stems from a Justice Department investigation in 2012 that found Portland police engaged in a pattern or practice of excessive force against people with mental illness or perceived to have mental illness. The investigation also found that police use of stun guns was unjustified and excessive at times. A negotiated agreement calls for changes to Portland policies, training and oversight. Federal and city officials are seeking the judge’s acceptance of the agreement without a trial.

In April, the parties to the case returned to the judge and offered an alternative to his idea: annual hearings before Portland’s City Council. The judge quickly shot that idea down, saying that would be insufficient.

Simon on Friday reiterated why he wants to hear in his courtroom each year on the progress of the reforms from either the city, federal officials, the police union, the Albina Ministerial Alliance or the person who is hired as the city’s community liaison officer.

The agreement is expected to extend for at least three years.

“I want to make sure either we’re proceeding apace and making good progress towards implementation – or if there was a problem, I’d want to hear about it sooner than later,” Simon said.

City attorneys in the past have questioned the judge’s authority to hold annual hearings.

In March, Simon said he didn’t want to dismiss the lawsuit with prejudice, as requested by the two main parties. That would mean that the suit would be over and no one could bring it back to court. At the time, he said he’d prefer to place a hold, or a “stay” on the case and require at least yearly status hearings in open federal court, he said.

Federal officials told the judge in March that the parties are opposed to a hold on the lawsuit. If a stay was then lifted, they argued, it would “reinvigorate the case,” and the U.S. government doesn’t want to keep the suit in litigation.

Instead, they suggested the court might conditionally dismiss the lawsuit, with the requirement that annual status hearings be held before the court that are limited in scope but would allow for continued oversight. In essence, the lawsuit would be placed on the court’s inactive docket until the Justice Department returns to the court with a motion to dismiss the case once there’s substantial compliance with the reforms.

Simon Friday said he’d only agree to “conditionally dismiss” the lawsuit if all parties to the case, and the city’s community liaison, would agree that they’d appear yearly in his court to discuss the reforms’ progress.

The Rev. T. Allen Bethel, co-chair of the Albina Ministerial Alliance’s coalition, said he was disappointed and disturbed by the refusal of the city and other parties to the case to agree to annual court status hearings. The community coalition had asked to intervene in the case and the judge allowed the group limited status.

He issued this statement Friday:

“The limited review on the status of compliance sought by the Court should be welcomed by the City, given the City’s assertion that it is already in compliance and on track with the implementation of the Agreement. The City has been operating under the expectation that the Agreement will be entered; it makes no sense to negate all the work that went into negotiating and implementing the Agreement by rendering it unenforceable.”

And, the Rev. LeRoy Haynes, co-chair of the AMA coalition, said:

“The failure of the Mayor, the city commissioners, and the PPA to accept Judge Michael Simon’s limited annual review represents a missed historical opportunity to unite our diverse communities and take a leap in resolving the rift in our city between the police and the community, particularly communities of color and persons with mental disabilities.”