A conglomerate of Portland Media including the Oregonian and Willamette Week, the Tribune and all our local TV stations has hired an attorney, Duane Bosworth, of the international law firm Davis Wright Tremaine, to argue that Federal Court should force the City of Portland to release information publicly about the disciplinary records of the Portland Police Bureau Officers and Sheriff’s Deputy involved in the controversial death in custody of James Philip Chasse last September.
James Rice, Deputy City Attorney, and Carlo(s) driello and Susan Denaway, attorneys for the County, and attorneys for American Medical Response, filed a claim earlier this year asking the court for a “protective order,” which would keep the officers’ disciplinary records secret from the public. On that condition, they would then be given to attorney Tom Steenson, who is litigating the Chasse case on behalf of the dead man’s family, but he would not then be able to disseminate them outside his office.
Yesterday, Bosworth, whose services are extremely expensive, filed a motion to intervene in the case, on behalf of the local media conglomerate—arguing that the disciplinary records of the officers are not only crucial to the Chasse family’s case against the city and county (Steenson is arguing that the bureau could have intervened earlier to discipline Officer Christopher Humphreys, who has the second-highest record of use of force in the police bureau)—but that the public, too, has a right to know about these things.
That motion will not be heard today, as it was filed so late yesterday evening, said Judge Dennis Hubel, presiding. But it will proceed later, and will have far-reaching implications for all Portlanders.
Bosworth, talking to an Oregonian reporter in the elevator after this morning’s hearing, who it felt like was semi-frantically gesturing, trying to get him to shut up, described Hubel’s statement about the timing of his motion to intervene, as “preposterous.”
READ MORE AFTER THE JUMP
Update, 5pm: What follows is pretty much everything that happened with regard to releasing information to the public about the Chasse case, at today’s court hearing. There’ll be a story in next week’s paper that boils it all down, but since one of the major issues in today’s arguments was “the public interest,” I thought why not simply lay it all out for those of you who want to know, and let you read as closely as possible about what happened. It’s loooong, but I was interested all the way through. So who knows, maybe you will be, too.
Original Post: If the city and county eventually win the right to keep the information secret, then Police Chief Rosie Sizer and Sheriff Bernie Giusto will continue to have their hands tied with regard to improving transparency in cases like this—unlikely to improve the community’s trust in the Police Bureau and Sheriff’s office.
This morning’s oral argument, in Courtroom 9B of the Federal Courthouse on SW 3rd, was just between Steenson and the city, county, and AMR—the ambulance firm which did not transport Chasse to hospital after his beating, but instead sent him with the officers to jail.
Regardless of whether he can eventually make it public, Steenson wants more information from the city as soon as possible.
That kind of information includes personnel and medical records for Officer Humphreys and Sergeant Nice, their phone records, information about whom they spoke to within hours of the incident, and so on. It also includes information about standard operating procedures and training procedures in the police bureau, both written and anecdotal.
“There won’t be a written policy saying ‘we’re not going to discipline officers based on what they do.’ But I believe there will be evidence that the city does not take the steps necessary to discipline or terminate officers in cases like these,” said Steenson, in his opening arguments.
“The word on the street if you’re a police officer is that essentially you can act with impunity,” he continued. “And in order to prove that claim, we have to have the various materials.”
Deputy City Attorney James Rice responded: “The protective order really is integral to what we’re talking about today. We’ve produced 5500 pages worth of information, and my legal assistant has worked hard with Mr.Steenson’s legal assistant. We have submitted a significant number of documents in this case. In a way it’s a man who creates a barrier, and then complains to the defendants about the barrier that exists.”
Steenson agreed, until the issue of any protective order can be resolved, to treat any documents released by the city as if they were under protective order.
“If the court were to issue a protective order, then everything else would fall like dominoes,” said Rice.
Judge Hubel said he’s not going to tell the court what his thoughts are on the protective order at this stage, but that he thinks there’s going to be some information subject to protective order, and some, not.
Among other things, Steenson is seeking disciplinary information from the police bureau for the last 25 years about the city’s handling of deaths in custody.
“We absolutely need that kind of discovery in order to proceed with proving the claim we are making against the city,” he said.
Steenson also wants details of the cops’ Internal Affairs investigation into Chasse’s death. That includes the decision of the Bureau’s performance review board, its use of force review board, the officers’ disciplinary records, and whether or not they were identified by the Bureau’s “early warning system.”
“All of those types of processes are identified in the Police Bureau’s directives as part of its management system, and we have received none of that information,” said Steenson. “They should be produced, and should certainly not go under any protective order.”
The city tried to argue that it shouldn’t release the information until the internal affairs investigation is complete, although it could not give a date when that will be.
“Why should Mr.Steenson have to wait until it’s over to start his investigation, when everything is stale?” asked Judge Hubel. “We’re not going to wait until they’re done. You’ll supply them now. And as things come into your possession, at some reasonable frequency,” [the city will have to give them over.]
Hubel also ordered the City Attorney to get information from the Police Bureau’s training division on its standard operating procedures, within ten days. Rice implied that the training division has not been forthcoming with information, “because it is focused on its primary task” of training police officers.
Hubel told the City Attorney to tell the training division they need to get him the information, or tell him how much effort is going to be required to get it, within 10 days—or else they’ll see him in court.
Steenson also wants to see any complaints relating to the officers named in the case. “We do think we are entitled to performance and misconduct type complaints,” he said.
The City Attorney is happy to produce those documents under protective order, which Steenson agreed to, until that issue can be worked out.
Steenson also asked for Officer Humphreys’ career-long 2400 arrest reports, saying his office “has evidence,” it believes, that Humphreys has a “history or pattern of falsifying police reports.”
The City Attorney said that would be time-intensive, adding that “this sort of gill-netting operation” would be very expensive.
Judge Hubel ordered the production only of Humphreys’ reports as they relate to tort claims filed against the city, and for the City Attorney’s office to find out if there’s a way to link Humphreys’ alleged falsification of reports to use of force, prior to the introduction of use of force reports, which happened relatively recently in the bureau’s history.
Then they broke for lunch. They pick back up at 1.15pm, when Judge Hubel hopes the details of a protective order will be thrashed out.
Update, 3pm: Between 1.15 and 2:45, Judge Hubel ordered more information to be released:
1.All the city’s information on Crisis Intervention Training, except where it includes information about psychological issues as they relate to individuals—which will be redacted.
2.The City Attorney’s office must also now work with the Police Bureau, Independent Police Review, and PARC—the California-based agency which has produced three reports on officer-involved shootings, and has another one due out next year—to produce as much source-information as possible upon which the 4 PARC reports are based. The Chief of Police will also communicate with all her officers, asking them to come forward with any documents they may have had returned to them by Parc over the last few years.
3.The city must also release documents it has already released in another case called Price, which is currently under appeal at the 9th circuit court of appeal, which describe what the police bureau has done, and is doing, to address use of force by police officers, back to the mid 1980s.
4.The city must produce all supporting documentation, which led to the production by the Police Bureau of its Spring 2007 use of force report.
Update, 4.30pm: The Judge in the Chasse case is going to think about whether or not to issue a protective order to keep information about the police officers involved in James Chasse’s death largely secret between the City Attorney’s office and that of Chasse’s attorney, Tom Steenson, before it goes to court.
“Whatever rights the public have to watching their court system in action, and I concede and agree that there are rights to that to take place, the primary purpose for the courts being here is to resolve the disputes between the litigants as far as possible,” said Judge Hubel, this afternoon. “The vast majority of the time, the public pay no attention to what we do here. In this case they have been, and I would expect them to continue to pay attention.”
Here’s Deputy City Attorney Jame’s Rice’s justification to keep the information under wraps: “The threat of harm to officers in this case is not theoretical. We’ve had officer Humphreys say in his affidavit that he’s been stopped by an armed person who had information about him.”
Judge Hubel asked if this was before or after the Chasse incident. It was actually beforehand, Rice said.
“He also works under cover—information about him jeopardizes him,” Rice continued. “We have the info that there’s an element in the community that goes around putting up posters of heavy-caliber Smith & Wesson pistols pointing at police. Why should an officer be jeopardized by discovery matters? We’re interested in it not getting out there, and in today’s world, placed on the Internet. It’s more than annoyance and embarrassment, it’s a level, truly, of oppression to the police officers.”
“Ultimately another of the issues in this city is having a fair trial,” Rice said. “It simply doesn’t lend itself to the defendant’s having a fair trial down the road later. Protective orders tend to morph. At the present time, I think we’ve laid out good cause reasons for the implementation of the protective order. For now, it seems to me, is that the proper thing to do is to accept that the court impose a protective order.”
Attorneys for the county and American Medical Response also said they wanted the information kept private.
Steenson, attorney for the Chasse family, responded: “Those IAD reports, all of that information, that type of information, that comprises the kind of information we’re talking about, relates to the operation of the Portland Police Bureau. And I believe that it’s a fair statement to make that historically, lawyers have not been as conscious about the public’s right to look at things as perhaps we should have over the years. I also think it’s fair to say there’s been sort of a shift, whether it’s because of more aggressive litigation over the issue, as to the recognition by the courts, to the judiciary being much more careful about what information ought to be kept away from the public.”
“The public interest here is probably off the chart. I don’t think that the generalized concerns the defendants have about the standard operating procedures are enough to outweigh the citizens’ concerns.”
Rice responded: “One of the things lawyers do have to be concerned about is not impeding a fair trial. And that’s going to be difficult once the media circus gets going. What we’re looking for is to have the jury be able to come into trial in an unbiased fashion. For purposes right now, if we’ve got good cause, let’s put the protective order in place, and move the litigation along. I don’t see why he has a say in this other than this ‘right of the public,’ which he is not representing when he makes this argument because it is going to be harder to have a fair trial.”
“I’m going to take the motion under advisement, for now,” said Judge Hubel—meaning he’s going to make a decision in a few days. “But I can’t ignore what is glaring in this case, and that is that discovery has been essentially going at a snail’s pace because of a dispute about the protective order. We would all be much further down the road if there had been some kind of protective order in place and some discovery could have happened.”