Portland police could press forward with immediately compelling statements from officers involved in shootings if a new proposal from Commissioner Nick Fish and Mayor Ted Wheeler is approved on Wednesday.
The change, to be floated in a planned substitute ordinance [PDF], would essentially reinstate a provision in the city's latest contract with the rank-and-file police union, the Portland Police Association (PPA), allowing officers who use deadly force to be interviewed by internal investigators shortly after the incident. That provision replaced language—known as the "48-hour rule"—that gave cops two days before giving a statement to the Internal Affairs Division.
The death of the 48-hour rule was a hallmark of a new contract inked with the PPA late last year, and a central reason why Fish and Commissioner Amanda Fritz said they supported the agreement. But earlier this year, Multnomah County District Attorney Rod Underhill issued a memo that suggested compelling statements from cops might amount to a breach of their constitutional rights, and could make it impossible to prosecute them in court should a grand jury find it likely they'd committed a crime.
Wheeler, who campaigned opposing the 48-hour rule, has suggested challenging Underhill's opinion in court (something the DA has said he welcomes). But in the meantime, Wheeler had said the city would comply with the memo, not compelling officer statements until after a criminal inquiry is complete. That can take more than a month.
Under the substitute ordinance Wheeler and Fish plan to introduce on Wednesday, that would no longer be the case. Instead, Fish says the new proposal would allow the city to continue to compel officer statements "within 48 hours" following shootings.
"The mayor and I will be introducing a substitute ordinance which will make clear that we are adopting and implementing the post-deadly force procedure immediately," Fish says. "Based on the case law, we think our approach is constitutional, and we also think we have very little risk."
The change in strategy owes, in large part, to a memo [PDF] drafted by the local chapter of the National Lawyers Guild. The 13-page document argued against Underhill's reasoning, and suggested that the city should compel officer statements while it waited for a ruling from a court as to whether the DA is correct (the city attorney and director of the city's Independent Police Review have also disagreed with his reasoning).
When a National Lawyers Guild representative testified before city council at a lengthy hearing last week, Fish asked numerous questions about the organization's reasoning, and shortly after pulled City Attorney Tracy Reeve aside for a quiet chat—the first sign an amendment was in the works.
Fish and Wheeler have since "had the city attorney’s office look at this very closely," Fish says. "This is not a criticism of the district attorney, this is our independent analysis that we’re on strong legal footing."
The approach is not likely to be popular with the police union. Though the PPA agreed to axe the 48-hour rule in contract negotiations last year, it's been emboldened by Underhill's memo. PPA President Daryl Turner has said recently that compelling testimony from his officers before a criminal investigation is complete is tantamount to stripping cops of their constitutional rights.
The 48-hour rule's potential second death will be one of three police reform measures taken up for the second time on Wednesday afternoon. It will join a change granting the Independent Police Review more authority (not controversial) and a proposal for a new citizen oversight board of Portland police reforms (intensely controversial).
Fish says he's confident the substitute ordinance will get at least a third vote. He's hopeful there will also be unanimous support to slap an "emergency clause" on the item. If approved that would allow it to go into effect immediately (though Fish says, due to PPB departmental rules, the actual policy wouldn't take effect for 30 days).