THE LEGAL DRAMA over police reform in Portland—seemingly put to rest in August, when a federal judge finally approved the city's nearly two-year-old settlement agreement with the US Department of Justice—has been revived.
On Wednesday, October 22, Mayor Charlie Hales and Commissioner Amanda Fritz will ask their colleagues to push back against one of the more contentious elements in US District Court Judge Michael Simon's ruling: an order that the city and feds, along with the Portland Police Association and community advocates, must return to court at least once a year to defend their progress.
Simon, reacting to community outcry after a public hearing in his courtroom earlier this year, had signaled his interest in the updates for months, trying and failing to reach a deal with the city before ordering them over the city's strong objections. City attorneys have argued that Simon, in issuing that order, exceeded his authority and potentially usurped oversight of the reform deal from Portland City Council.
Hales and Fritz, according to a resolution filed on Friday, October 17, are asking their colleagues to appeal Simon's entire ruling, but with the narrow goal of having the federal Ninth Circuit Court of Appeals "clarify" Simon's role in overseeing the progress of reforms.
"This appeal does not challenge the settlement that four stakeholders—the US Department of Justice, the city, Portland Police Association, and Albina Ministerial Alliance [Coalition for Justice and Police Reform, or AMA]—agreed to," Hales said in a statement. "The city and the police bureau are fully committed to the reforms outlined in the settlement agreement."
The reforms in question were largely negotiated in late 2012, after the feds concluded a months-long investigation into the Portland Police Bureau, finding that Portland officers engaged in a pattern or practice of using unconstitutionally excessive force against people with mental illness.
Among the negotiated changes are speedier misconduct investigations, a new unit focused on mental health, force and conduct policies that prize de-escalation, limits on Taser use, and a consistent discipline guide. The city has also agreed to hire a compliance officer/community liaison to help oversee its progress in implementing those reforms. Fritz, in a statement, insisted the city council was intended to be the public backstop making sure everything's going according to plan.
Advocates, however, already argue that the reforms don't go far enough, absent more civilian oversight of the police bureau. And some say they're deeply concerned about the implications of an appeal, no matter how narrowly crafted Hales and Fritz insist it is.
The AMA issued a statement fretting over a delay in seeing the reforms implemented and "condemning" the appeal for the message its members believe it sends.
"This is an attempt to backtrack and dilute and get rid of the limited oversight provided by the judgment entered by Judge Simon in August," says the AMA's chairman, Reverend LeRoy Haynes. "This move further reduces the community trust for reform and accountability of the Portland Police Bureau."
Jason Renaud of the Mental Health Association of Portland—who's already criticized Hales for failing to fund mental health facilities urged in the reform ["An Empty Mandate," News, Feb 19]—also sent out blistering remarks scolding the city for keeping its legal apparatus in motion.
"Persons with mental illness have been admittedly harmed by Portland police," Renaud writes, "and after three years of dawdling there is still no independent assurance anything has changed."
Concerns about delays in seeing the broader package of reforms implemented aren't unfounded, sources say. In the event the Ninth Circuit agrees with the city that the judge overreached when compelling the updates, and then sends the reform deal back to Simon for a fresh ruling, Simon could decide to reject the deal altogether and seek a bench trial.
But Hales and Fritz's appeal is expected to pass handily. Commissioners Steve Novick and Nick Fish, both lawyers, told the Mercury they support Hales and Fritz—giving them at least four votes on the five-person council.
Fish says his vote will come with "some reluctance," even though he thinks it's smart to set the ground rules for oversight sooner rather than later. Novick, however, is less reserved. He likened Simon's decision to a judge in a custody case asking divorced parents to return to court and provide evidence, almost as if "he were a party in the case."
"Judge Simon is doing something legally wrong and very odd," Novick says. "So I'm very comfortable supporting an appeal."