In February, the US Department of Justice (DOJ) announced that, because of the way Portland police handled 2020's racial justice protests, the City of Portland was no longer in compliance with a 2014 settlement agreement between the DOJ and Portland. That agreement, which was initially formed to rein in Portland police officers' use of force against people with mental illnesses, sets requirements that the Portland Police Bureau (PPB) must meet to remain in compliance with the DOJ. In the February report, DOJ attorneys said that, because Portland officers violated PPB's own use of force policies by using disproportionate force against protesters and failed to adequately investigate potential misuse of force, the city had fallen out of compliance.
The city responded to this determination in a 40-page letter filed Friday afternoon. In sum, the city calls the DOJ hypocritical for penalizing the city's police for hurting protesters last summer with "less-lethal" munitions and tear gas, since federal police also used force against Portland demonstrators. The city also blames federal police for creating an atmosphere that called for more heavy-handed force at the hands of Portland cops.
Here's how the city attorneys put it:
"Accordingly, the City hopes the DOJ understands that the conduct of the United States in Portland in 2020 made a difficult situation worse, inflamed the demonstrations, and contributed to the protracted and more intense protests in the City. As a result of the federal government’s conduct, the City was placed in a much more difficult position to meet its obligations under the settlement agreement, particularly the reporting deadlines and timelines for investigations, given the increased level of intensified demonstrations caused by the federal government in Portland."
PPB officials have previously blamed the high-stress and unusual conditions of 2020's continuous protests as the reason PPB couldn't meet the settlement's requirements, and asked for DOJ's leniency under the circumstances. Yet DOJ attorneys maintain that PPB should be prepared to follow its own use of force rules under any scenario.
The city leaned on this again in its Friday letter, comparing PPB officers to doctors working at a hospital during the COVID-19 pandemic:
"There are likely hospital policies and procedures related to equipment, such as ventilators, that does not account for the situations that have arisen during the pandemic. Similarly, PPB’s force use and reporting policies were not developed for a protest event lasting approximately 170 days – something unprecedented and unanticipated, and which was exacerbated by the federal government’s actions in Portland. For this reason, the City does not agree with the assertion that it failed to implement its force and reporting policies."
The city's letter is supposed to explain to the DOJ how it will address the flaws outlined in the February report in hopes of again coming into compliance with the settlement agreement. According to city attorneys, the city will meet those requirements by mandating all officers participate in a crowd control training session that will begin in June. And a software update to Office 365 on PPB computers will guarantee officers and their managers can keep better track of "After Action Reports"—or the documents police must submit after they use force against a member of the public.
The letter also addresses a separate DOJ report filed in March, which critiqued the city's current oversight system, the Police Review Board (PRB), for officers who engage in misconduct. Again, the city said it will largely address those critiques with more officer training.
It's now up to the DOJ to decide whether or not the city's letter resolves its previously stated concerns. If DOJ attorneys are unsatisfied, they'll meet with the city to explain why. If the two parties refuse to strike an agreement, they'll be forced into mediation. And if mediation fails, the DOJ will likely ask the federal judge who oversees the case, District Judge Michael Simon, to enforce the terms of the settlement agreement. It's then on that judge to analyze whether or not the city is, in fact, out of compliance with the agreement. If Simon agrees, per the rules of the settlement agreement, he can "devise an appropriate remedy" to ensure the city complies.
While the city agrees to this process in its Friday letter, it also threatens to point out to Simon how federal police worsened PPB's protest actions, thus forcing PPB to fall out of compliance with the feds. The letter does not mention, however, that Portland police were using force against protesters for a full month before federal agents arrived on Portland's streets last summer.
Simon has already scheduled a hearing with the city and DOJ in August to evaluate its progress. But if the DOJ and city move into mediation, it will likely happen before August.