PORTLAND — A federal judge said Monday he’s unlikely to approve the negotiated settlement between the U.S. Department of Justice and the city of Portland on a package of police reforms unless he could maintain oversight and hold at least annual hearings on the progress of police compliance.
U.S. District Judge Michael Simon said he didn’t want to dismiss the lawsuit with prejudice, as requested by the two main parties. That would mean that the suit would be over and no one could bring it back to court.
He would prefer to place a hold, or a “stay,” on the case and require at least yearly hearings in open federal court to require the parties to report on the status of the reforms, he said.
“I am not satisfied with the prospect that three-and-a-half years can go by with the court hearing absolutely nothing on how substantial compliance is progressing,” Simon said.
The judge said the hearings would be held to learn: “How things are going? Are there any problems or obstacles?”
The proposed settlement stems from a Justice Department investigation in 2012 that found Portland police engaged in a pattern or practice of excessive force against people who have or are perceived to have mental illness. The investigation also found that police use of stun guns was unjustified and excessive at times. A negotiated agreement calls for reforms to Portland policies, training and oversight.
After an extensive break that allowed lawyers involved in the case to confer, a civil rights lawyer from the U.S. Department of Justice offered an alternative to the court.
The parties are opposed to a hold on the lawsuit, said senior trial attorney Jonas Geissler with the Justice Department. If the stay were then lifted, he argued, it would “reinvigorate the case,” and the U.S. government doesn’t want to keep the suit in litigation.
For the city of Portland, “The stay would fundamentally alter the deal” and the negotiated agreement would unravel, he said.
Instead, Geissler said, the parties would ask the court to conditionally dismiss the lawsuit, with the requirement that annual status hearings be held before the court that are limited in scope but would allow for continued oversight.
In essence, the lawsuit would be placed on the court’s inactive docket until the Justice Department returns to the court with a motion to dismiss the case once there’s substantial compliance with the reforms.
Geissler asked the court for two more weeks to allow the parties to craft an appropriate alternative. The judge gave them until April 14 to submit their response in writing.
If any settlement is going to have the approval of the court, Simon said, he wants to make sure he’s kept informed in a timely and public fashion on its status.
He assured the city attorneys, “I’m not planning on micro-managing … I will have no authority to order any specific course of action be taken.”
Simon also took the unusual step of addressing out-of-court statements made by the president of the Portland Police Association to his members after the February “public fairness” hearing. Most of the people who testified at that hearing argued that the negotiated reforms didn’t go far enough. Many urged greater monitoring by the court.
Portland Police Officer Daryl Turner, the union president, wrote to his members that as he sat through the fairness hearing he wondered, “Why do we expose ourselves to the scrutiny of those who have never walked in our shoes?” He said he also questioned why officers put themselves at daily risk for the public.
Simon gave his own answers Monday: “I believe the answer is that they believe and they are committed to the depths of their souls in the rule of law and they heroically enforce the rule of law in order to protect everyone in society from lawless conduct .”
And as to why police open themselves up to scrutiny? “It is because that is the very nature of a constitutional democracy under the rule of law,” Simon said.