PORTLAND – U.S. Department of Justice lawyers have asked Portland police to produce a plan on how they will properly report, analyze and investigate officers’ use of force, but the city has refused.
The city contends such a correction plan isn’t required under its 2014 court-approved settlement agreement on police reforms with the Justice Department.
Weeks of behind-the-scenes wrangling among federal lawyers, police administrators and city attorneys over the issue boiled over in a public meeting Tuesday night.
“Having failed the system for investigation of force at the front end, you starve the accountability system on the back end,” said Jonas Geissler, a senior trial attorney with the Justice Department.
Federal overseers are eager to see how the city will meet requirements of the settlement – with a roadmap, data and evidence.
“Absent such data, I don’t know where we go yet from here,” Geissler said. “We’ll have to see.”
The stalemate could prompt the Justice Department to issue a formal notice of non-compliance to the city, a step not taken in the seven years since U.S. District Judge Michael H. Simon approved the agreement. It could bring both sides back before the federal judge.
The settlement followed a federal investigation that found Portland officers used excessive force against people with mental illness. It called for widespread changes to Portland police force and Taser policies, training, supervision and oversight, a restructuring of police crisis intervention services and quicker investigations into alleged police misconduct.
Last month, the Justice Department found the Police Bureau failed to meet four key reforms under the settlement.
The department cited the Police Bureau’s inappropriate use and management of force during social justice protests last year, inadequate training, subpar police oversight and a failure to adequately share an annual Police Bureau report with the public as required.
Police used force during last year’s mass protests that violated bureau policy, with officers not distinguishing between active versus passive resistance before firing rubber bullets and other impact munitions, federal lawyers said.
Police supervisors frequently failed to investigate or analyze use of force by officers, gave blanket approval to use force with no real analysis and often “cut-and-pasted” identical or similar language into their reviews, the report said.
Geissler was addressing the Portland Committee on Community-Engaged Policing, a citizen oversight group tapped to review whether police are following the settlement’s provisions.
Mary Claire Buckley, a civilian employee who oversees the Police Bureau’s Office of Inspector General, pushed back on the Justice Department’s concerns.
She said the city has never had to “write up our plan” in the past and can’t give the Justice Department a specific date or time that the Police Bureau will get back on track.
The city received the recent federal report only about six weeks ago, she noted.
“We have committed to doing additional training for the members on crowd control,” she said.
The Police Bureau has “every intention of having a training and addressing the points that the DOJ has raised” on the content of police force reports, analysis by supervisors and the timeliness of their reviews, she said.
Jared Hager, an assistant U.S. attorney, said it’s not just a problem of a lapse in training.
It would be one thing if the deficiencies occurred in the early years of the settlement, but it’s particularly distressing that they’re happening now, he said.
“Over the summer it was revealed to us and for the city, the community and to the world really, that there is a systemic failure to implement some of the terms of the settlement agreement,” Hager said.
From May 29 through Nov. 15, during the height of the protests in Portland,Portland police used force more than 6,000 times, according to the Justice Department’s February report.
Officers sometimes targeted people who attended protests but weren’t involved in any violence through “guilt by association” or focused on people simply because they were slow in walking away when ordered to disperse, the report said.
Officers are supposed to fill out a data collection report when they use force, noting what they did and why. The report should be done at the end of their shift. That rarely occurred, the report said.
Supervisors are supposed to complete an after-action report that reviews each use of force within 72 hours. That also rarely occurred.
Buckley urged federal lawyers to consider the circumstances that led to a breakdown in the process.
“We were overwhelmed by the unprecedented protest activity,” she said. “No other city in this country had 171 straight days of protest activity.”
The bureau typically would get about 40 use-of-force reports in a month, she said. In June, there were 3,000, she said.
It was impossible for three police use-of-force analysts to keep up with that number, Buckley said.
“It was not that the bureau didn’t have a system. It’s not that we deliberately didn’t do the work,” she said. “It was just that there was so much of it that we couldn’t keep up.”
The settlement unfortunately has rigid time frames, with no exception, she said.
Hager said the inability to track and promptly review uses of force is a significant concern.
“Holding officers to account, if use of force is not in policy or not constitutional, that’s an important aspect of the settlement agreement,” he said.
“It’s really at the core of the settlement agreement. The bureau system isn’t set up to handle that,” he said. “That’s something that needs to be addressed.”
The Justice Department lawyers also signaled that any changes to the city’s police oversight system as proposed under a ballot measure approved by Portland voters in November will have to get a green light from the federal government.
The Independent Police Review office under the city auditor currently isn’t meeting the settlement’s 180-day span required to investigate misconduct complaints against officers.
Though the ballot measure calls for creating a new citizen oversight board that could investigate and discipline police, the makeup and structure of the board hasn’t been determined.
The City Council is forming a commission that will spend 18 months to come up with the parameters for a future board.
In the meantime, Geissler said he’s concerned that the Independent Police Review investigators could decide to look for other jobs, further delaying police misconduct inquiries.
“That would be problematic,” he said.
He said any future oversight system should remain independent, not be under any one commissioner. Geissler added that it’s unclear to the Justice Department what the exact plan is for the future civilian oversight board.
The Justice Department lawyers also said the Police Bureau must release its next annual report on time and meet its obligation to hold community meetings at each of its three precincts.
The bureau issued its 2019 report last year and didn’t hold a meeting at one of its precincts. The 2020 annual report hasn’t come out yet.
The federal lawyers said they don’t have the power under the settlement to demand enforcement of its provisions.
But they noted the agreement says the United States “reserves its right to seek enforcement of the provisions of this Agreement if it determines that PPB or the City have failed to fully comply with any provision of this Agreement.”
The Justice Department would provide a formal notice to the city and allow for a response in 30 days. Mediation would follow if a resolution couldn’t be reached.
If mediation fails, the Justice Department could ask a judge to enforce compliance.
“Ultimately, we can’t force the city to do anything. Only the judge can,” Hager said. ‘If the rubber hits the road, that’s ultimately what the department can do.”
