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mathIEU LEWIS-ROLLAND

A new push to launch an independent investigation into police misconduct at protests could be Portlanders’ best bet for ensuring police accountability.

In the nearly four months since the current wave of protests against police brutality began in Portland, law enforcement has regularly responded to the protests with intense violence. On a nearly nightly basis, videos and reports emerge of federal officers, state troopers, and officers from the Multnomah County Sheriff’s Office (MSCO) and Portland Police Bureau (PPB) responding to protesters with tear gas, indiscriminate firing of less-lethal weapons, bull-rushing and hitting people as they dispersed, or otherwise responding to protesters with a level of force that looks unnecessary and potentially unlawful.

Yet with protests now weeks past the 100-day mark, law enforcement has, for the most part, not faced accountability for these breaches of conduct. That’s why the ACLU of Oregon is now calling on Gov. Kate Brown to appoint a special prosecutor to investigate police misconduct during the ongoing protests in Portland.

Kelly Simon, the ACLU of Oregon’s interim legal director, told the Mercury that a special prosecutor would provide a high level of oversight that isn’t possible when police investigate themselves—and take the responsibility off the public to do so through individual lawsuits.

“It’s important that we not ask the police to police themselves, when we feel they’re incapable of doing that,” Simon said. “The burden shouldn’t be entirely on the public to hold these officers accountable… It’s time for government officials to start taking responsibility to hold our law enforcement accountable, to set a standard.”

A special prosecutor’s (also called a special counsel) job is to investigate and prosecute potentially illegal activity, when the body that would normally investigate it has a conflict of interest that would prevent it from being objective or effective. In this case, a special prosecutor would take the place of police agencies investigating individual officers. Brown said she was directing law enforcement to investigate itself after police responded to antifascist protesters and journalists aggressively last weekend.

Brown has the power to appoint a special prosecutor under Oregon law, and Simon said she should do so rather than relying on internal investigations—or on local investigative bodies like the Independent Police Review (IPR), which is part of the Portland City Auditor’s office. IPR’s model has been criticized for not having enough scope or authority to ensure proper police accountability.

On top of that, not all police at protests are PPB officers; federal, state, and MSCO officers also are in the mix, and each agency answers to different authorities. Further complicating matters is that officers often do not clearly identify which agency they are with at protests, and the fact that 56 PPB officers were recently federally deputized, giving them power beyond their roles in PPB.

“The public isn’t even sure which agency may have been responsible for the abuse they suffered,” Simon said. “Having such a disjointed system allows law enforcement to easily evade accountability, and to stonewall the public by making them try to navigate bureaucracy on top of bureaucracy.”

PPB has also been slow to release information to the public about how protests are handled. For example, a recent use-of-force report for the bureau as a whole excluded police activity at protests from the data. And PPB officers are allowed to obscure their badges at protests, instead being identified only by numbers on their helmets—though even that system is inconsistent.

“The public is being denied a lot of information right now,” Simon said. “We don’t know how command is operating, who is directing at times, which agencies are involved at times, and we don’t know the identities of officers at times.”

She added that Brown appointing a special prosecutor to investigate law enforcement’s handling of protests as a whole would shed light on these unknowns, rather than keeping them behind closed doors in an internal investigation.

Brown would have control over the investigation’s scope—whether it would result in individual punishments for specific officers, for example, or set new rules for the entire system. Simon pointed to the Truth and Reconciliation Commission, a restorative justice project that Nelson Mandela set up in South Africa in 1995 to address the atrocities of the apartheid system, as an example of how police could be held accountable outside of the criminal court system.

An investigation into law enforcement’s actions could also be expanded to include the elected officials who oversee those agencies. That means Mayor Ted Wheeler, who also acts as Portland’s police commissioner, could be under investigation. So could Brown, who oversees the Oregon State Police.

“I encourage Governor Brown to think about how the system of accountability could be set up,” Simon said. “I hope she reaches out to community organizations and advocates to think through how to best set it up.”

To Simon’s knowledge, Brown has never appointed a special prosecutor before in her time as governor. But Simon said it’s clear that the current system for police accountability isn’t working—and a special prosecutor could set a new precedent for how protests are policed in Portland.

“[The current system] hasn’t given the public any justice, and it certainly hasn’t built any trust between law enforcement and the public,” she said. “Those approaches are failed approaches, and we need something different.”