Demonstrators flood City Hall in protest of a new police union contract last October. A big part of that contract suddenly appears null and void.
Demonstrators flood City Hall in protest of a new police union contract last October. A big part of that contract suddenly appears null and void. Dirk VanderHart

Not that it did much to placate his ever-growing army of detractors, but it was a big deal last year when then-Mayor Charlie Hales succeeded in vanquishing the "48-hour rule."

The rule was a hated piece of the city's contract with the Portland Police Association, that stipulated that internal affairs investigators—the folks who determine if an officer acted outside bureau policy, not whether she committed a crime—needed to wait at least 48 hours after a police shooting to force an interview from the officer involved.

The rule was hugely concerning to people who thought it gave cops two days to get their stories straight with other officers, and that it created a situation ripe for abuse and coverups. So in exchange for a 9 percent pay bump and other goodies, Hales was able to ink a new contract with the PPA that neatly excised the 48-hour rule. Problem solved.

Except that it wasn't, apparently.

Yesterday the Oregonian reported that, due to concerns from Multnomah County District Attorney Rod Underhill, police are mulling a policy change that would push interviews back weeks, not days, in the case of fatal shootings. If approved by Chief Mike Marshman and Mayor Ted Wheeler, the rule would undo a large measure of the progress Hales and other elected officials had said would come of last year's police contract.

Under what Underhill believes is a procedure demanded by a 1984 Oregon Supreme Court ruling, he says internal affairs investigators need to wait until after a grand jury is able to consider potential criminal charges against an officer to compel that officer to speak. If they don't, the DA's office says they risk giving the cop immunity to possible criminal prosecution.

In fact, that's been the position of the DA's office for years, Underhill says, but only with the production of a March 27 memo did he begin getting traction with entities like the US Department of Justice—which had criticized the 48-hour rule as it works to implement a settlement with the city.

"We had designed a system that I am uncomfortable with," Underhill told the Mercury this morning. "We could immunize [officers involved with a fatal shooting] within minutes and sometimes hours of the event."

Not everyone agrees. Constantin Severe, director of the city's Independent Police Review, wrote a memo of his own [PDF] in June, citing separate case law, and suggesting that Underhill isn't necessarily correct.

"The City’s acquiescence to the District Attorney’s request to delay the administrative interviews is counter to good investigative practices..." Severe wrote. He's recommending that Wheeler get a formal opinion from the City Attorney's Office, among other things.

This drama had played out quietly for months before it became public yesterday. Wheeler, the police commissioner, didn't disclose the fact that administrative interviews haven't been occurring promptly after shootings since at least May, only weighing in after the Oregonian's report.

"The Multnomah County District Attorney is the prosecutorial authority and has determined that his office cannot prosecute cases where the City has compelled an officer’s statement," Wheeler said in the statement. "This view has been supported by the Oregon Department of Justice. This determination obviously complicates the City’s current policy of compelling a statement in the immediate aftermath of an incident. We will continue to evaluate our options.”

The 48-hour rule was in effect for years, and it meant that internal affairs officers couldn't force an officer to give a statement on a shooting until two days after it occurred. Here's the full language, as it appeared in the last union contract:

"Whenever delay in conducting the interview will not jeopardize the successful accomplishment of the investigation or when criminal culpability is not at issue, advance notice shall be given the officer not less than forty-eight (48) hours before the initial interview commences or written reports are required from the officer. The advance notice shall include whether the officer is a witness or a suspect, the location, date and time of the incident, the complainant’s name, and the nature of the allegation against the officer.”

Regardless of when the interview occurred, Underhill says it if was compelled prior to a potential criminal case going before a grand jury, it was wrong. Such compelled statements violate an officer's constitutional right to remain silent and so render him untouchable should he be charged with a crime, the DA's office says. Underhill says cops can still compel testimony, if they like, but that it needs to wait until after a grand jury has decided there's no reason for criminal charges—a process that can take more than a month—and even longer should there be criminal proceedings.

In the March memo [PDF], the DA's office cites case law that's been around for more than three decades to come to that conclusion.

If the DA is right, then Multnomah County's been doing things wrong for a long time. Underhill says he can't say how many fatal police shootings have had potential criminal prosecutions compromised in this manner (Portland officers are pretty much never prosecuted for shootings), but that he became particularly concerned about the issue after the December 2016 police shooting of a man named Steven Liffel.

In that case, Underhill learned that internal affairs investigators had definitely interviewed the officer involved, Lawrence Keller, prior to a grand jury proceeding. The DA says that shooting and the highly controversial February killing of 17-year-old Quanice Hayes "were very realistically exposed to a dismissal" if involved officers had been charged with crimes (they weren't)

The killing of 24-year-old Terrell Johnson in May, after the DA's office memo, wasn't tainted, Underhill says, because internal investigators held off in compelling testimony.

The huge question: Where was this information when Hales was valiantly slaying the 48-hour rule last year? Did the City Attorney's Office or Bureau of Human Resources known that the provision they were going to battle over was perhaps meaningless?

Wheeler's statement doesn't offer many clues, but Severe says the notion of immunity has been raised for years. He only recently discovered the argument had morphed into actual police practice.

"My recommendation was that the city become more transparent and inform the public that this was an issue," Severe says.

Underhill says no one involved in contract negotiations asked him. "As I say, your district attorney's office was not brought in as a party," to those discussions, he says. "My office was having discussions amongst ourselves and with other members of our public safety community."

But the upshot is: The PPA got sizable raises last year, without having to give much in return (those raises, we should note, were also touted as a boon to help the police bureau with lagging recruitment).

The question now becomes how the city proceeds. Severe believes that, even if Underhill is correct, there are ways to conduct administrative interviews sooner. By establishing an ironclad "wall" between administrative and criminal investigations, he says the city can proceed as it planned when eliminating the 48-hour rule.

"There is a valid public interest in having timely administrative investigations, he says. Not doing so, he argues, "causes a decrease in the public's faith" in the city.