After a landmark ruling earlier this year, the Portland Police Bureau (PPB) is proposing changes to a key directive that could determine whether criminal defendants have access to information that could potentially exonerate them in legal cases.
PPB Directive 0320.00 was initially implemented three years ago to guide how the Bureau reports information relevant to criminal cases, including allegations of officer misconduct for bias, excessive force, dishonesty, and more.
The directive is in keeping with the responsibility of police and prosecutors to share any potentially exculpatory (evidence that could clear a person of any guilt) or impeaching evidence with defendants, a responsibility established by the US Supreme Court in its 1963 ruling in Brady v. Maryland.
The ruling ensures that, for instance, if a police officer has a documented history of falsifying evidence, a defense attorney for a person the officer arrested would have a right to that information.
The sharing of potentially relevant evidence with defendants became a live issue in Portland earlier this year, when attorneys for a person arrested during pro-Palestine demonstrations at Portland State University in 2024 argued they should have been allowed access to the arresting officer’s personnel file.
The judge in the case, Multnomah County Circuit Court Judge Angela Lucero, agreed—ruling that prosecutors had failed to proactively seek out evidence that should have been turned over to the defense, and dismissing the case.
That’s because, in the words of Henry Oostrom-Shah–one of the attorneys from Metropolitan Public Defender (MPD) who represented the protester–prosecutors like the Multnomah County District Attorney’s office are responsible for seeking out and relaying all available, relevant evidence to the defense.
“The prosecutor can’t just close their eyes, plug their ears, lock up their filing cabinet, and say, ‘We don’t want to know about it, so we don’t have to go find out about it,’” Oostrom-Shah said. “The prosecutor has an affirmative duty to go find out this information, and this policy is no more than a legal way of facilitating that duty.”
The missing personnel file was not the only issue that dogged the prosecutions of Portland State protesters. Six other defendants also had their charges dismissed earlier this year when it was revealed that prosecutors had failed to turn over police-filmed footage of the protests.
Multnomah County District Attorney Nathan Vasquez said he was “appalled” by the latter incident, but according to Oostrom-Shah, it’s Vasquez’s office that is pushing for the change in directive and PPB that is following its lead.
“The impetus seems to be the DA Office’s unhappiness with how litigation went earlier this year,” Oostrom-Shah said.
The way the directive is currently written, PPB is required to “err on the side of disclosure and allow prosecutors to make decisions about materiality”—a policy that should, in theory, ensure that any failure to turn over required evidence is the fault of the DA’s Office and not the bureau.
But the proposed change to the directive would eliminate the language about erring on the side of disclosure and replace it with language specifying that “allegations that cannot be substantiated; are not credible; or have resulted in exonerated, not sustained, or unfounded findings are generally not potential Brady material.”
PPB has argued that such a change is reasonable to prevent the unnecessary disclosure of officer information, and the DA’s office has been publicly supportive of the proposed change.
In a statement provided to the Portland Committee on Community-Engaged Policing (PCCEP) ahead of a recent meeting as well as to the Mercury, the DA’s office wrote that the current directive is “grossly out of step with every comparable jurisdiction we are aware of” in that it requires the reporting of all officer misconduct allegations, even those not germane to prosecutions.
“PPB consulted with us as it worked to revise Directive 0320 to clarify its original intent, and we think PPB has found a good balance to protect the privacy rights of union workers, while also retaining and strengthening the notification and disclosure provisions necessary to ensure MCDA is fully compliant with its constitutional and statutory discovery obligations,” the DA’s Office wrote.
Heidi Brown, chief deputy city attorney at the city of Portland, also emphasized during the PCCEP meeting that PPB will continue to affirmatively report Brady material to the DA’s office. PCCEP is scheduled to make a recommendation about the potential directive change on Wednesday, June 25.
In a statement provided to the Mercury, PPB spokesperson Kevin Allen wrote that the Bureau’s goal “is to find the right balance between the criminal defendant’s Brady rights with the law enforcement officer’s confidentiality rights when the records sought are not material and exculpatory.”
“In consultation with MCDA, and after giving the issue serious consideration, the Bureau believes these revisions more accurately identify potential Brady material to ensure MCDA has all the necessary information to make appropriate disclosures, while balancing law enforcement officer’s confidentiality interests,” Allen continued.
But given that the District Attorney’s Office is already responsible for making judgements about what material in an officer’s personnel file must be shared, Juan Chavez, director of the Oregon Justice Resource Center, sees an ulterior motive at play.
“I think the DA feels like they can get around their Brady obligations if the Bureau never tells them if there’s a Brady problem—and that’s precisely what this directive change is encouraging,” Chavez said.
The battle over Brady material between the DA’s office and public defenders is long-running and goes beyond protest cases. Public defenders have long maintained that the DA’s office has not complied with its constitutional obligations under the Brady decision, and Oostrom-Shah said he believes the DA’s office now wants to “claw back” the protections the directive offers.
Under the proposed revision to the directive, some of the responsibility for determining the relevance of information in an officer’s file would fall to the police themselves—who would be tasked with reporting any instances in which officers were charged with or convicted of a crime or broke bureau policy, as well as any allegations a bureau commander deems “credible.”
The standards by which the bureau commander would determine what constitutes a credible allegation have not yet been spelled out, and there does not at this point appear to be any mechanism to audit the process.
Ultimately, if the police bureau fails to turn over Brady material that is then uncovered through records requests and subpoenas, it is prosecutors who will be held responsible. Given that, Oostrom-Shah said, it’s unclear why the DA’s office would encourage the implementation of a policy that appears to give them less access.
“It is very concerning to us at the defense bar, and us at Metro Public Defender, that the prosecutor would try to make it harder for themselves to engage in their constitutional obligations,” Oostrom-Shah said. “Something is very worrisome about that.”
If defense attorneys at places like MPD don’t have confidence that they’re being granted access to all potentially exculpatory material, that may mean they’ll have to spend more time seeking it out.
“What this sets up, I think, is repetitive motions from defendants having to go to the city and drag this info out of them—and that will just delay cases,” Chavez said.
At a moment when public defense resources are already stretched thin, that kind of paradigm could be especially damaging for the system as a whole.
“If you’re going to be trying to win prosecutions beyond a reasonable doubt, you should be able to do that even over potentially exculpatory evidence,” Chavez said. “And if you can’t do that, you shouldn’t be bringing these prosecutions. Simple as that.”
