The federal judge overseeing Portland's police reform settlement with the US Department of Justice said he was ready to approve the deal this morning—but only if he got his way on an 11th-hour procedural change meant to increase the court's oversight of how the reforms play out in the coming years.
The change submitted by US District Court Judge Michael Simon would keep alive, but put on hold, a federal lawsuit accusing Portland police officers of constitutional violations stemming from an alleged pattern or practice of using excessive force against people with mental illness. The settlement agreement as written would dismiss the lawsuit with prejudice and come back to Simon only if the feds formally invite him to weigh in again.
Simon wants the change so he can require annual updates in open court. Simon told the court that he doesn't think he'll have the power to compel reports unless the case remains technically alive. The agreement, as written, might otherwise bring him back in some five years after the settlement was negotiated—2017.
Keeping the lawsuit alive also gives Simon some more subtle leverage: If he's displeased with how the cops and city are making progress he can lift lift the stay on the lawsuit—scrapping the settlement agreement and letting the case proceed to trial. A trial could force Simon to actually declare the city has engaged in unconstitutional policing. The settlement agreement doesn't go that far, letting the city save some face by agreeing to make changes without admitting guilt.
"I am not satisfied with the prospect that three and one half years can go by with the court hearing absolutely nothing about how substantial compliance is progressing," Simon said in court.
He's given the four parties arguing the case—the city, the feds, the Portland Police Association, and the Albina Ministerial Alliance Coalition for Justice and Police Reform—until April 14 to negotiate together and suggest an alternative. That could be extended another week, particularly if whatever emerges needs Portland City Council approval.
The city and the PPA have told the judge they were leery of letting him order regular updates—with the police union arguing it might unravel the entire deal. The feds and the AMA coalition have both said they had no issue with it—with the AMA arguing Simon can order the updates without reaching agreement among the parties.
The feds and city are also worried about what it might mean if Simon is allowed to lift the stay—sending the case to trial maybe after the accusations of police abuse were first levied, and also years after some of the reforms and cultural changes in the agreement have been put in place.
"A stay would fundamentally alter the deal," argued Jonas Geissler, attorney for the federal justice department's civil rights division.
Before all that, however, Simon took some time to thunder against dismissive comments by PPA President Daryl Turner first made public by the Mercury last month. Turner, after enduring hours of harsh testimony at the fairness hearing, lamented in a private statement to his nearly 1,000 rank-and-file members—the people on whom the fate of this reform deal rests—"why do we expose ourselves to the scrutiny of those who have never walked in our shoes?" Turner's own answer to his question amounted to a reluctant chin-up, suck-it-up sentiment: "we have to."
The judge saw it just a bit differently. He used it to tee off why he had concerns over his own presumed lack of oversight.
"That is the very nature of a constitutional democracy under the rule of law," Simon said.
"The very nature of the rule of law requires that the police subject themselves to the scrutiny of and oversight by those who have never walked in their shoes," he continued, "and that they receive praise and commendation when appropriate. And that they receive constructive criticism and oversight when appropriate."
Turner, in a conversation with activist Joe Walsh during a break, insisted Simon was complimenting him for abiding by civilian scrutiny even if it maybe bothered him to do it. Walsh told him "I'd be hiding under there" if he was called out by that, gesturing to one of the benches in the courtroom gallery.
The changes Simon suggested fall short of what several community groups, mental health advocates, and police watchdogs demanded in a two-day "fairness hearing" last month meant to help Simon decide whether the deal as proposed is "fair, adequate, and reasonable." Citizens wondered why more wasn't done to address racial profiling, why a stronger mechanism for civilian oversight wasn't included, why officers still have 48 hours before giving internal statements in deadly force cases, and why the city and feds hadn't taken stronger steps toward building one or more mental health centers.
Simon followed that hearing with several questions forcing the four parties to give difficult answers on several of those points. Simon said in court he was mostly satisfied by what he heard, except for whether ought to have the power to play a more direct role in how reforms are implemented.
"Those points have some merit," Simon said of what he heard from the community, saying he interpreted the parties' lack of interest in making changes as such: "'We will continue to discuss them. But we aren't prepared to put those specific points in the settlement agreement.' I accept that."
"I was hoping [the judge] would respond to more of those" lingering community issues, said Dan Handelman of Portland Copwatch.
The reform agreement, as written, does make several changes: It requires the police bureau to explicitly grade cops who use force on their decision-making. The police bureau has tightened its Taser policy, limiting but not yet forbidding multiple shocks. And it's created a behavioral health unit and expanded crisis intervention training. The city has also enacted a discipline guide, agreed to speed up internal investigations, and given the Independent Police Review Division more power to conduct internal investigations.
Simon's bid for increased judicial oversight was met with a handful of questions from the city's and police union's lawyers—and sent the attorneys for the four sides off to caucus among themselves for and then into an antechamber for a private discussion.
Before that hourlong recess, though, Deputy City Attorney David Woboril asked Simon to clarify whether witnesses giving testimony at the proposed update hearings would be cross-examined. Simon said he might ask follow-up questions, but that the hearings he was envisioning won't be evidentiary. Woboril also asked whether Simon might consider some other "mechanism," beside a hearing, for the updates. Simon curtly said no one's proposed any other mechanisms.
Anil Karia, counsel for the PPA, asked whether Simon might use the hearings, along with the fact that the reform lawsuit would technically be alive, to force further changes or reforms that haven't been agreed to as part of the current document. Simon said he couldn't do that. But he reiterated that he had other levers to pull.
"The court would hae the authority to lift the stay," Simon said. "But then, just as with any lawsuit, it's up to the plaintiff what to do further and what to do next."
When the parties emerged, Simon once again made clear he only wanted information in any update hearings—not the power to make changes. He said he doesn't think he could claim that power even if he wanted to. His goal is to make sure that, say, the AMA Coalition doesn't come before him in three years feeling blindsided by a lack of information on how the reforms are going.
If everyone's informed, through the court, he said, no one will be blindsided.
"If the parties are asking for the imprimatur of the US District Court," Simon said, "then i want to make sure I'm kept informed and in a public fashion."
And if the parties come back and can't agree—and he's forced to contemplate weighing his desire for that oversight against the potential dissolution of a difficult-to-achieve settlement deal?
"Then i have some tough decisions to make," he said.