Faced with an impasse over federal police reform between the Portland Police Association, on one side, and the city and US Department of Justice, on the other, a judge has ordered a bench trial next summer on accusations that Portland officers have engaged in a "pattern and practice" of using excessive force against the mentally ill.
That's a big step, and another hiccup, in what's already been almost a months-long process. So far, the city hasn't formally conceded any liability in the civil rights case, reaching a settlement agreement with the feds instead. But despite mediation, fundamental disagreements remain between the union and the city and feds over whether that reform deal, approved by Portland City Council last fall, unfairly impacts the PPA's labor contract.
That contract expired June 30 but remains in effect through an "evergreen clause", and it's unclear whether the new contract will include certain proposals sought by the feds—including a "discipline matrix" that would clarify cops' punishment for misconduct.
And because of case law that says the court can't force changes to a union contract unless there's been a clear finding of liability, US District Court Judge Michael Simon said he had no other choice but to order a trial that both the city and the feds, seemingly, had hoped to avoid.
"There will be a trial on the merits," Simon said.
Update 3 PM: Mayor Charlie Hales' office issued a statement on Simon's decision. He's spinning the 2014 trial date as a good thing, even though he's clearly been champing at the bit to move forward and start putting this stuff behind him:
“I am pleased the court provided such clear guidance to all parties regarding next steps in the City’s and U.S. Department of Justice’s draft Settlement Agreement. Both the Justice Department and the public are expecting us to change practices in our Police Bureau. We are doing so, and will continue to do so, because they are the right things to do. I believe that, by setting a potential trial date a year in the future, the court is expressing trust in our continued focus and action. The result will be the same whether commitments are codified in a Settlement Agreement or in City Policy: we will demonstrate continuous commitment to civil rights in the Portland Police Bureau.”
Simon's decision came despite one bright spot: a deal between the city and the Albina Ministerial Alliance Coalition for Justice and Police Reform that will give the AMA a greater role in establishing and enhancing the oversight component of the city's settlement agreement with the feds.
The AMA forced the city to let it join the process of selecting the compliance officer/community liaison who would someday be tasked with overseeing the reforms on behalf of the Justice Department and connecting to citizens. The AMA also forced the city to open and provide better notice about the work of the board charged with helping the compliance officer. Further, the city has agreed to provide better public notice of its existing police-accountability-related boards and commissions.
That agreement will head before city council next week.
"We are moving in the right direction and we are cautiously optimistic that changes will take place," Dr. LeRoy Haynes, the AMA's chairman, said in a statement.
The deal doesn't mean the AMA is bowing out of the trial and the wrangling that's expected to go on before it's scheduled, presumably, Simon said, sometime next summer. Simon says he's "inclined" to let the AMA remain involed
Simon must decide whether the PPA should be granted status as a defendant alongside the city in a liability trial. The PPA was granted that status only in what's called the "remedy" phase of the case—where both sides have moved to solutions, like those in the settlement agreement. The Justice Department already said in court today that it would argue against letting the PPA intervene in a trial. The feds are worried that a dispute on a few points will delay and "hold hostage" the entire deal.
They'd rather wait for contract talks to wrap up before deciding whether the impasse merits trial—something that Deputy City Attorney Ellen Osoinach said could take six months if the union and city can't agree on a deal and have someone called an "interest arbitrator" choose between each side's last, best offer. Without that deal, the feds suggested handwringing was premature.
"Hope is the last to go," Assistant US Attorney Adrian Brown said after court.
But PPA counsel Anil Karia argued that the dispute was well beyond "what ifs" and "speculation."
"We respectfully disagree with that notion," he said.
He cited the discipline guide as a major reason why. He said the two sides can expect to disagree on putting that in the PPA's next contract. If the only guiding document is a settlement agreement, and not a judicial finding of liability, then, Karia argued, Simon couldn't make the union agree to it without violating established case law that protects union contracts.
"It's presenting the PPA with a fait accompli," Karia said. "The city must have the discipline guide to have its settlement agreement. Can this court then tell the PPA you shall have a discipline guide without having a judicial finding of liability?"
That argument seemed to sway Simon, who also held open he possibility of blessing the nondisputed pieces of the settlement agreement while calling a trial and hashing out liability so he could impose any reforms that are disputed.
Simon acknowledged the delay and the complexity of what he was proposing. Lawyers have three months to write briefs telling him why he's wrong and why it would be a mistake to let the union sit as a defendant. Oral arguments would follow on December 3, with a trial maybe six months later. He wants attorneys to suggest a trial date.
Said Simon: "I want to move rapidly."