What a bizarre, fast-paced ride we've been on lately in regard to city policy after police shootings.
At this point last month, most citizens assumed cops were being interviewed by internal police bureau investigators right after they used deadly force. That was, after all, a central promise of a police union contract last year.
Then in mid-July, a bombshell. The district attorney's office was uncomfortable with interviews on such a short time frame, so the city had quietly done away with them.
And now? As of today? They're back—the result of some hurried legislative wrangling that we reported about on Monday.
The upshot of a unanimous Portland City Council vote this afternoon is that the city will operate as if a March memo from Multnomah County District Attorney Rod Underhill never happened. Rather than bending to Underhill's opinion that forcing cops to give statements could make them immune to criminal prosecution down the line, the city is instructing internal affairs investigators to force them to give statements promptly.
It's good news for police accountability advocates who've pushed such policy for years, and who'd thought it was won in a contract with the Portland Police Association last year.
But three big questions remain. Even as the city reverts back to older policy, it's crafting an entirely new police directive that will set forth a procedure for taking statements from cops who've used deadly force.
We know that directive will explicitly separate those internal investigations—which only seek to determine if a cop broke city and police rules—from criminal investigations. And we know it will direct that those interviews in relatively short order. Here's what we don't know:
HOW SOON INTERVIEWS WILL TAKE PLACE
Policymakers had floated language that mandated interviews "within 48 hours," which City Attorney Tracy Reeve says was a way to set out the absolute maximum time, even as most statements are taken sooner.
Advocates don't like it. Numerous people testified this afternoon that language mandating statements within 24 hours or before the end of an officer's shift would be better. Some even argued that a 48-hour window veered dangerously close to the old "48-hour rule," which gave cops two days after shooting someone before speaking with investigators, and was excised in exchange for a pay raise to cops last year.
"What you are now proposing is instituting the 48-hour rule even though we paid $10 million to make it go away," said Jo Ann Hardesty, a city council candidate and president of the local NAACP chapter. "The community prefers [interviews] at the end of the shift."
The argument seemed to win favor with Commissioner Amanda Fritz, who recalled being asked to document her activities for each and every shift during her former career as a mental health nurse.
"I don't know why an officer would be any different," she said.
WHETHER IT WILL INCLUDE A LOOPHOLE
One of the central sticking points for an otherwise-appreciative crowd this afternoon was "paragraph 21," a provision in the ordinance that offers wiggle room if officials don't want to compel an officer's statement directly after a shooting. Here's the language.
Advocates don't trust that sentiment, saying it could be abused by officials who don't want to punish officer wrongdoing.
"It creates an exception so wide that it would swallow the rule," the Portland chapter of the National Lawyers Guild argued in written testimony to council.
Reeve, the city attorney, said the language was an "escape hatch" that's used in other cities. Those cities "do an initial gut check evaluation of whether a shooting looks like it's likely to be, put colloquially, a bad shooting," Reeve said. "In those circumstances, Seattle does not compel an investigation. It defers to the criminal [process]."
Given the uncertainty about whether compelling a statement from a cop as part of an internal investigation means immunity to criminal prosecution, Reeve and some city commissioners were inclined to think the language was prudent.
But council appears to be leaning against the loophole in the final police directive it will take up in coming weeks. Both Fritz and Commissioner Dan Saltzman indicated opposition to the language. Fritz noted that police being prosecuted for shootings "just doesn't happen," so such language was probably unnecessary.
Wheeler, the city's police commissioner, said he was "ambivalent" about the loophole.
"That’s not one I’m going to fall on my sword over," the mayor said. He continued: "I would obviously use that exception extremely judiciously. [But] I understand that politicians saying 'trust me with this tool' doesn’t carry a lot of weight..."
WHETHER A JUDGE WILL WEIGH IN
Under Wheeler's initial plan, Portland would have sought a judge's opinion about when it could compel officer testimony before enacting any rules. That strategy changed after a hearing last week that prompted more urgency among officials to get something on the books.
But that urgency has created a problem: Asking a judge's opinion via a "validation procedure" would require the city to hold off on that policy until a ruling came down. Since officials want to move forward with a new rule right away, that option is no longer available.
That's left no clear path forward for the city to seek an opinion, Reeve told the Mercury this afternoon. The city could seek an opinion on the city's rule once it's in the book, she said, but it's likely a court would decline to offer one.
City council is planning to take up a new directive concerning police statements on August 24, when these questions (and probably many more) will be hammered out.
