Our Testimony to Judge Simon in DOJ v City of Portland

Written testimony delivered to Judge Michael Simon for his Fairness Hearing in anticipation of Department of Justice v. City of Portland by the Mental Health Association of Portland

SUMMARY

1. The Agreement must be rejected by the Court for inadequacy of language.
2. The Agreement must be considered by the Court entirely unfair, because it was concocted without the persons it purports to serve.
3. The Court must reject the Agreement as unreasonable because it fails to protect persons with mental illness from dangerous police officers.
4. Until the Agreement provides necessary and sufficient tools to cause the City to implement all agreed items, regardless of cost or difficulty, it is inadequate and the Court should reject it.
5. Failing to provide basic accommodations for persons central to the Agreement leaves the Agreement inadequate, and it should be rejected by the Court.

The Mental Health Association of Portland is the state’s impartial and independent advocate for persons with mental illness and addiction. Our task is to help persons with a diagnosis of mental illness or addiction speak up and speak out – and to speak for those who cannot speak for themselves.

The organization is a 501 (c) (3) nonprofit, tax identification 200138570, governed by a volunteer board of directors. The group receives no church, foundation, government or corporate funding.

The organization is a founding and active member of the Albina Ministerial Alliance Coalition on Justice and Police Reform. We ascribe to and support the ideas and opinions put forward in the Coalition’s public writing and to the comments made both by members of the ministries associated with the Coalition and by leaders of other Coalition organizations.

The organization was formed in 2003 by persons directly affected by public policies to be a voice at the table. In 2010, The Oregonian editors called the organization, “Oregon’s foremost independent advocate for persons with mental illness and addiction.” We apply direct pressure for patient-centered reform to mayors, commissioners, governors, executive directors, publishers and editors, doctors, lawyers and judges.

Our advocacy at the Oregon State Hospital to build a memorial for 3,700 deceased patients made The New York Times front page, helped win The Oregonian a Pulitzer, and launched the DOJ investigation which got the hospital rebuilt. Our emeritus Board president is an inmate of the hospital.

Our advocacy on behalf of persons routinely harmed by the Portland police has been front page news since the death of James Chasse in 2006. The leveraged effect of public scrutiny has changed both policies and procedures by patrol officers, jail deputies, prosecuting and defense attorneys, judges and court administrators. Our critically acclaimed documentary film, Alien Boy: The Life and Death of James Chasse will be widely distributed on cable, DVD and online in March 2014.

We are disappointed to have to submit our comments on the Department of Justice v. City of Portland Settlement Agreement again.

The Settlement Agreement, as signed by the Portland City Council in November of 2012, is not fair, reasonable or adequate.

The Agreement is filled with vague language and infinite definitional opportunities for further legal and bureaucratic conflict, inviting opponents of peace and justice to divert attention from reducing harms to persons with mental illness to interpreting, understanding and resolving a poorly-conceived contract abandoned by a former administration.

The quality of thought and the quality of the Agreement language represent the rush to resolution of the signatories. Clearly both sets of authors wanted to claim quick victory and move the issue of routine harm of persons with mental illness from public scrutiny and front page discussion. The Agreement must be rejected by the Court on inadequacy for language alone, and in revision include persons with both political acumen and copy-editing skills as primary authors.

The Agreement was produced behind closed doors by persons not knowledgeable about how our community mental health system works, and without foresight to significant changes occurring to both Multnomah County’s mental health system and how mental health services will be affected by the eventual implementation of the Affordable Care Act. There is no crystal ball sufficiently large to know that future, but it is not acceptable for people who are intimately knowledgeable of the present state of affairs and authorized to implement the future to not be fully engaged partners in this Agreement.

Further, none of the persons most affected by the Agreement had any input in the thought or language of the Agreement: persons with a diagnosis of mental illness. This oversight, twenty-three years after passage of the Americans With Disabilities Act, underlines the chronic inability of municipal and legal bureaucrats to cease actively discriminating against persons with mental illness.

Nothing about us without us! The Agreement must be considered by the Court entirely unfair, because it was concocted without the persons it purports to serve.

The Agreement may resolve differences between the city of Portland and the federal government, but from our point of view — that of persons with mental illness, those actually subject to the “pattern and practice” identified in the Findings Report of the DOJ, those most likely to be harmed by police officers — the settlement provides no reassurance.

The city continues to employ officers who mercilessly and thoughtlessly killed our friends and family members. The Agreement introduces no mechanism to separate those individuals from the police bureau, in order to prevent future threat to us, or hold them duly accountable. No amount of policy, training, or wringing of hands can amend these crimes, and nothing has been done to protect us from the officers involved. Ignoring this situation – both in the Agreement and in the development of city policy – evidences an unexplainable and unacceptable disregard for justice; as such, it undermines the entire Agreement.

Until Portland’s police chief and police commissioner have the ability to quickly identify rogue or dangerous officers and remove them from contact with the public as police officers no Agreement is adequate.

Police hold a monopoly on the use of force. With certification and employment, they are charged with a great power. That power is balanced by a great responsibility to be merciful and prudent, and to be scrutinized and commanded by civilian elected and appointed authorities. Without this balance of powers being equal, violence by the police to the innocent, especially persons with limited legal or political representation, becomes common and routine.

When routine and unnecessary harm is accepted and prevails against discriminated-against persons, the effect is impunity: a corrosive to the public administration of justice; hard for partisans to distinguish from righteousness, or understand the damage of its disregard.

The message delivered by ignoring or appeasing injustice is that brutal beatings, unjust shootings, and multiple deaths of persons with a mental illness – even those with caregivers, friends, family, a home, a clean record – are acceptable within the Portland Police Bureau and the City of Portland.

Such an imbalance of powers is unacceptable in a fair court. Impunity undermines and dissolves the most important tools the community deserves and police officers need – trust and respect. The Court must reject the Agreement as unreasonable as it fails to protect persons with mental illness from dangerous police officers.

As noted in findings of the Agreement, persons with acute mental illness, including psychosis, mania and even depression, often do not respond as expected to authoritative commands. Without worthwhile treatment resources, acute illness is a predictable, routinely experienced complication of many illnesses. For us, inability to respond to police immediately or typically can provoke an escalation in tactics that too often results in injury or death. While the settlement agreement does address treatment deficiencies, it does so in a way that is mainly responsive to the convenience of police, not the expressed needs of our community.

As a test of the willing engagement of the City with the Agreement, supporters of the Mental Health Association of Portland selected one item of the Agreement to pursue – Item 89 (this number may have been changed, there are several versions of the Agreement):

89. The United States expects that the local CCOs will establish, by mid-2013, one or more drop-off center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. All such drop-off / Walk-In centers should focus care plans on appropriate discharge and community-based treatment options, including assertive community treatment teams, rather than unnecessary hospitalization.

As you may read in the attached document “Walk – In Center Proposal,” a letter to Gail Shibley, Portland Mayor Charlie Hales’ chief of staff, our supporters met with local political and public health leaders soon after the Agreement was signed by Council. Few if any were aware of the Agreement, and none intended to pursue development of a Walk – In Center for persons with mental illness.

After conferring with staff from Mayor Hales’ office in January 2013 we formed a work group of experts (see attached “Walk In Center Work Group – roster”) to review local services, meet with local mental health leaders, and develop a basic plan for a Walk – In Center. With initial verbal support from police, mental health officials, county commissioners, care coordinating council administrators, and the Mayor’s office, the group developed a plan, budget and timelines. Because of staff turnover in Hales’ office we were unable to present this information until October. Note: no attempt had been made by the City, in any form, to develop a Walk – In Center or a Drop – Off Center (and still has not, to date).

On January 23, 2014 we were told the Mayor had no interest in developing any mental health facilities, regardless of the Agreement; that the city did not have the funds, capacity, expertise or inclination to develop either a Walk – In Center, or the other part of Item 89, a Drop – Off Center.

They told us senior staff at the Department of Justice would not advocate to include a Walk – In Center in a further negotiated Agreement.

Whether any of what we were told is accurate is irrelevant. What it proves is without outside pressure City bureaucrats do not act in the best interests of persons with mental illness – and continue to dispute and take no responsibility for harm caused by their employees. Until the Agreement provides necessary and sufficient and obvious tools to cause the City to implement all agreed items, regardless of cost or difficulty, it is inadequate and the Court should reject it.

Just as persons with acute mental illness may be unable to respond to police commands, many of us have an equal inability to participate in normal political or bureaucratic processes. The settlement agreement introduces the Community Oversight Advisory Board, but its elaborate structure makes it wholly ill-considered if the intention is participation by persons at the center of the settlement. It is equivalent to giving a non-Braille text of Blackwell’s Dictionary of Law to a blind student: well-meaning, thoughtless, and cruel. You should have engaged capable persons with mental illness in your planning; they are plentiful. Expecting people with a diagnosis to participate in public meetings critical of the police shows a substantive non-understanding of the experience of being a person with a mental illness. People with mental illness can participate with public process with appropriate accommodations.

Accommodation includes hiring knowledgeable and trained peer staff to provide information, explanation, and support to self-selected participants. By peers, we specifically mean persons who also have a diagnosis of mental illness. Professionals, family members, and trained or educated persons are not peers unless they ALSO have a diagnosis of mental illness. Failing to provide basic accommodations for public participation by persons central to the Agreement leaves the text unfinished and inadequate, and it should be rejected by the Court.

We encourage you to continue to investigate police brutality against persons with mental illness, because it does not just happen here, it is everywhere. We recognize the problem; we can discern it is real and substantial. Portland is not unique, but we are ahead of others, and without real change here, in Portland, routine police violence against persons with mental illness will continue to deprive us of our lives, our rights, and our pursuit of happiness.

ATTACHMENTS

Prior public commentary on Department of Justice v City of Portland

The Mental Health Association of Portland’s response to City of Portland’s settlement with the Department of Justice
Mailed to Thomas Perez, U.S. Department of Justice, 10/29/2012

Beyond the Department of Justice Report: Cease Fire Now
From the Board of the Mental Health Association of Portland, published in The Oregonian

Letter to all mental health advocates: DOJ v PDX settlement mediation. An open letter to all major Portland-area treatment providers sent March 24th, 2013

Testimony to fairness of settlement of United States of America v. City of Portland
We made our position plain that the DOJ v Portland’s Settlement Agreement was inadequate, unfair and unreasonable – in January 2013.

Walk – In Center proposal to City of Portland – four items, seventeen pages total

1. Walk – In Center Summary, an email letter from the Mental Health Association of Portland to Gail Shibley, Chief of Staff for Portland Mayor Charlie Hales, twelve pages
2. Walk – In Center work group roster – roster #3-1, one page
3. Walk – In Center proposed budget, one page
4. Comparable Programs to Proposed Walk In Center, three pages