Shrugging Off Widespread Community Concerns, Council Pushes Forward with Police Reform Appeal

From the Portland Mercury, October 22, 2014

As expected, the Portland City Council tonight has agreed to pursue a narrowly framed, but potentially troublesome appeal of the city’s police reform agreement with the US Department of Justice—casting aside advocates’ and lawyers’ insistent concerns that doing so would shatter their sense of trust in city hall.

Over and over, city commissioners tried to make clear what they’re trying to do: merely “clarify” a federal judge’s order that the city and other parties in the case—including the feds, the police union, and the Albina Ministerial Alliance Coalition for Justice and Police Reform—would have to come to court once a year and defend their progress by answering questions and possibly by submitting evidence. City attorneys wants those rules spelled out so they can challenge them if needed—on the grounds that US District Court Judge Michael Simon would essentially be asserting himself as a party in the case.

Commissioners further promised that they’d still be moving ahead with the reforms, which were first negotiated two years ago and approved by Simon in August. The reforms, including changes in training, discipline, force policies, and oversight, are meant to answer findings Portland police had a pattern or practice of using excessive force against people with mental illness.

“We believe these changes are good and necessary,” explained Mayor Charlie Hales, who pushed for the appeal along with Commissioner Amanda Fritz. “This is a mandate we welcome and that we as public servants are upholding with our heart and soul. I want you to know that…. This is about clarity.”

Fritz, who said it “troubles me greatly” to disagree with so many accountability advocates, reminded everyone that the entire council would answer to the Justice Department—along with a compliance officer and community advisory board whose members have yet to be chosen.

“That would be saying I don’t trust myself and that I need a judge,” she said. “I don’t agree with that…. It’s a settlement agreement. It’s not a court-appointed monitoring. That’s what we worked so hard to avoid.”

But those assurances, coming at the beginning of an occasionally technical conversation, fell on deaf ears for the advocates who gathered to speak—from the AMA, from Portland Copwatch, from the National Lawyers Guild, from the ACLU of Oregon, from Jobs With Justice, from the League of Women Voters, etc.. Those groups all pleaded for the council to back down from a stance that many said felt like a “step backward.”

“What’s the harm?” asked attorney Jason Kafoury, whose firm last month won a record police brutality verdict in a jury trial last month (a verdict Hales says he doesn’t agree with). “An appeal can take years and years. I don’t understand why the first step wouldn’t be seeking clarification from the judge on how the hearing would go and what role he would have.”

Kafoury was one of several speakers raising that point in particular. Why an appeal? Why not a letter? Why not a motion or a hearing?

“I don’t understand why it has to go to an appeal,” said Chris Lowe of Jobs With Justice. “Why can’t you just ask the judge? You have to choose between this legalism and public trust.”

“Given your repeated claims that the city’s in compliance, given your repeated claims of transparency,” said the Reverend Kate Lore, “then I must ask what then are you afraid of—and is that fear really worth damaging the healing that’s taking place in our city?”

Commissioner Steve Novick pushed back against many of the speakers, trying to get them to articulate why they thought the city needed Simon to intervene when the feds already have the power to find the city out of compliance. Some advocates suggested the promise of an annual hearing would keep the feds on their toes.

Novick, a former practicing attorney who already told me he’d support the appeal, at some point called Simon a “friend,” but said Simon had “put himself in an untenable position” and that “all of us have friends who occasionally make mistakes.”

Questions about some kind of informal communiqué, however, resonated in the legal discussion that took over the hearing.

Eventually, Hales brought up Deputy City Attorney Ellen Osoinach to talk about the city’s back and forth with Simon. She mentioned the legal filings and hearings held before Simon issued his order and his demand for the update—in which the city tried to see if a soon-to-be-hired compliance officer can stand in. But she said a letter or a conversation isn’t allowed “because these are judicial proceedings.”

“There’s not an informal track,” she told Hales.

The only “authorized” recourse for that answer, she said, was to ask the Ninth Circuit Court of Appeals for clarification on Simon’s power. She said an appeal was the city’s first choice, but that the Ninth Circuit might come back and tell the city to submit a writ of mandamus, which is an order from a higher court compelling a lower official to do something they aren’t. It’s seen as drastic.

Commissioner Dan Saltzman fretted about “cliques” and shared concerns raised by one speaker, Joe Walsh, that the city would be picking a fight with the federal judiciary that it might not ever hope to win.

“That’s a fair question,” Osoinach said.

But she tried to argue that the case was larger than the city’s concerns. Simon had exceeded his expected role in merely accepting the settlement agreement, by adding an unwanted requirement for updates, she said. And the Ninth Circuit, she said, might like to broadly take up that question of judicial authority. The city has until October 28 to file a notice of appeal. A writ would be more flexible. But Osoinach said the city would file both to give the appellate court a chance to choose.

“There is no precedent,” Osoinach told the council.

It’s entirely possible the Ninth Circuit could just as easily reject the city’s appeal or cast aside the writ. But if it decides to hear the appeal, it could be the city and the feds wind up in mediation to keep talking about what the hearings might look like. The feds initially supported the city’s request to have its compliance officer appear in court. But the DOJ later joined the AMA and agreed that Simon, in fact, had the right to compel updates.

Fritz asked whether that mediation could expand beyond the original parties to include groups like Disability Rights Oregon, and Osoinach said that was possible.

It’s also possible the city could wind up spending years in court—although there’s a tiny possibility the court could put the issue on the fast track, which is nine months at minimum, Osoinach said. She estimated it might take nine to 18 months for resolution—which means the city would still likely attend one hearing in Simon’s courtroom next fall under his current rules.

Hales asked whether the appeal, in its narrow crafting, could untangle the rest of the reform deal.

Osoinach said the Ninth Circuit hasn’t been asked to turn any of the negotiated reforms aside. Although other city sources have raised the concern that Simon, if he’s ever handed the case back to make another ruling, might toss the deal out.

“That likelihood,” Osoinach said, “is extremely unlikely.”

Fritz, later in the hearing, said Simon would “not ride in on a white horse and save the day,” because that’s for the city council to do for itself.

“We are the only ones who can earn that back,” she said.

Saltzman wound up making it unanimous—despite being “torn” and worried about being seen as closing ranks.” (Commissioner Nick Fish, who told me he supports the appeal, was missing from the hearing.)

But Saltzman also managed to offend some advocates, by suggesting that some people might accuse the AMA of “closing ranks” by “never saying anything nice about the police.” (Which patently isn’t true—the AMA often criticizes management and bad police officers, while regularly taking pains to praise good cops and smart management decisions.)

Hales had the last word by invoking James Chasse’s 2006 beating death at the hands of police—and institutional racism and mental illness, and the need for cops to be better trained on how to handle those things.

His comments then turned into a recitation of his work as police commissioner and his resolve to see “results.” He argued things are getting better based on the reforms that have already begun taking effect no matter what kind of legal wrangling might follow.

“I get the reports every morning and I see thoughtful, nuanced de-escalation.. day after day,” he said. “If I didn’t think change was possible, I never would have run for office.”