A group of Portland police officers stand in a street during an investigation
Portland police fell out of compliance with the city's settlement with the US Department of Justice during their heavy-handed response to racial justice protests in 2020. Mathieu Lewis-Rolland

In the latest hearing for the joint settlement agreement between the City of Portland and the US Department of Justice (DOJ), the city expressed its determination to remedy the Portland Police Bureau’s (PPB) non-compliant behavior with the settlement.

While the city may be eager to end the years of court check-ins and hearings, mental health and community representatives in the settlement are worried about what happens when the settlement ends and the DOJ is no longer holding PPB accountable.

The City of Portland first entered the settlement agreement in 2014 after a DOJ investigation found that Portland police regularly used disproportionate force against people who appeared to be having a mental health crisis. The city agreed to address the issue through new training, use-of-force policies, and accountability measures which the DOJ would evaluate on a yearly basis.

In early 2020, the DOJ announced the city had met all of the requirements of the settlement, meaning they would be released from the agreement as long as they maintained progress until the next yearly check in. But, the city was unable to stay in compliance with the settlement due to PPB’s violence against protesters during 2020’s racial justice demonstrations.

During the check-in conference Tuesday, attorneys for the DOJ detailed PPB’s failure to respond appropriately to the 2020 racial justice protests. Portland police fell out of compliance with the settlement due to their use of force, incomplete training, lax accountability measures, and limited community engagement work during the approximately 170 nights of protest last year.

According to the justice department, PPB did not adequately track the inventory of munitions used in an attempt to control crowds during the protests, nor did the police properly document the type of force used. Additionally, After-Action Reports (AAR)—which police are required to file after using force—were found by the DOJ to be lacking in specific detail.

“AARs were often blanket affirmations of force with any investigation or analysis,” said DOJ civil rights attorney R. Jonas Geissler.

Additionally, the DOJ found that Portland police improperly justified use of force by conflating protesters’ passive responses—like slow walking when told to disperse—as active aggression.

Geissler used an example of when a PPB officer shot a protester with a munition while they were over half a mile away from the Justice Center building, the center of many racial justice protests in 2020. The officer justified the use of force by saying the protester could have run toward the Justice Center, where they could have engaged in violent behavior. During the Independent Police Review (IPR) investigation into the event, a PPB official misrepresented the bureau’s use of force policy in order to justify the officer’s actions, according to the DOJ.

The DOJ also took issue with the PPB’s slow response to investigating misconduct and the backlog of cases the IPR board is facing.

In July, the DOJ made nine recommendations on actions the city and PPB need to take in order to resolve their non-compliance with the settlement. Those recommendations included outfitting PPB officers with body-worn cameras, creating a detailed plan for implementing the new voter-approved Community Police Oversight Board, and holding PPB supervisors accountable for signing off on officers’ unconstitutional policing of protesters in 2020.

During Tuesday’s check-in, city attorney Heidi Brown said the city has no objections to the nine recommendations and is committed to implementing the changes to resolve the notice of non-compliance. Mediation between the city, DOJ, and other agencies involved with the settlement on how to implement those changes—particularly when it comes to body-worn cameras and the community oversight board—will begin early next month.

While the city acknowledges PPB’s failed attempts at policing the 2020 protests, Brown also noted that if the 6,000 uses of force associated with protest response were set aside, the PPB would have been in compliance with the settlement during 2020. In other words, all of the Portland police’s actions last year outside their response to the protests were constitutional.

The mental health agencies and oversight boards associated with the settlement found the notion of evaluating the police’s performance without the inclusion of their protest response was a misrepresentation of progress.

KC Lewis, an attorney with Disability Rights Oregon, pointed to the recent shooting of Joshua Lyle Merritt who was shot by a PPB officer while experiencing a mental health crisis in a convenience store last month. Merritt, who survived, was shot by Craig Lehman, a member of PPB’s now-defunct Rapid Response Team (RRT) who was pulled from public-facing police work during last summer’s protests due to allegedly assaulting members of the media and legal observers.

Lewis argued that PPB’s day-to-day policing can’t be disentangled from the bureau’s protest response because the officers who acted unconstitutionally during the protests are the same officers who are responding to community calls.

The DOJ’s latest evaluation of PPB’s performance only considered events in 2020, meaning the shooting of Merritt, as well as PPB’s killings of Robert Delgado and Michael Townsend—two people who were experiencing mental crises when shot and killed by PPB officers earlier this year—were not included in the recent report. Those cases will be reviewed by the DOJ, with an emphasis on PPB’s procedural and accountability processes, and will be included in next year’s check-in.

The DOJ’s report also was completed before the entirety of RRT resigned in solidarity with PPB officer Corey Budworth, an RRT member charged with fourth-degree assault for hitting a photojournalist in the back of the head with his baton during an August 2020 protest. Juan Chavez, an attorney for the Mental Health Alliance, said the PPB officers who did not intervene when they saw Budworth hit the journalist and the subsequent resignation of the entire team indicated that PPB is unable to police themselves. Chavez is concerned that the settlement hasn’t actually improved PPB’s accountability and wondered what will happen when the DOJ no longer holds PPB accountable through the settlement.

The settlement also seeks to address community trust and engagement with the police. The city and DOJ hope to accomplish that by formalizing the role of the Portland Committee of Community-Engaged Policing (PCCEP)—a group tasked with uplifting community voices and making recommendations to the city on how PPB could improve its relationship with the public. Originally, the Community Oversight Advisory Board (COAB) was created to appease the community trust element of the settlement, but that board failed after its members resigned. The PCCEP was created in 2019 and proposed to replace the COAB in the settlement, but the switching of the two groups is still only suggested, not formalized.

For PCCEP member Elliot Young, the committee still has a long way to go before it can effectively address community trust with PPB. Young said the PCCEP is not as effective as it could be because it is not adequately supported by the city. According to Young, the committee has made recommendations to the city based on community input only to have the city not respond and even lose track of the recommendations that were submitted. PCCEP members are also unsure of who their city liaison is, which they cite as a barrier to effectively communicating with Portland officials.

“Our work will only be effective if we have willing partners,” Young said, noting that he will resign from his position on the committee next month when his two-year, volunteer term ends partially due to the lack of support he believes the PCCEP has received.

The Mental Health Alliance also will not recommend that the PCCEP replaces the COAB until the oversight of the board and the metrics with which its progress will be evaluated are clear.

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During the hearing, groups like the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMA) and public commenters stressed their concerns with the adoption of body-worn cameras. The Portland Police Association, the union representing rank and file PPB officers, have previously pursued the adoption of body cameras under the condition that officers will be able to review the footage prior to writing reports following uses of force. The AMA said they will only support PPB receiving body cameras if officers write reports without reviewing the footage.

That’s one of the details that will be hashed out during mediation next month as the parties of the settlement determine what solutions to pursue to address the city’s non-compliance with the directives set down by the DOJ. The groups will then meet back in court on November 9 to check-in with Judge Michael Simon, who oversees the settlement agreement. If the parties agree on how the city will remedy the notice of non-compliance, then the settlement will be amended to include the nine recommendations from the DOJ. If the city, DOJ, and other parties cannot agree on how the city will remedy the non-compliant behavior, a hearing will be held for the city and the DOJ to argue their positions and Judge Simon will make a ruling.

The November 9 hearing, which will include whether or not the settlement parties agree on how to approach the non-compliant behavior, will be open to the public.