Portland attorneys accuse US Justice Department of moving goalposts on police accountability

By Jonathan Levinson (OPB)
Aug. 9, 2022 9:54 p.m.

The city of Portland has accused the U.S. Department of Justice of stating incorrect information and misinterpreting police programs while the two sides negotiate how to bring Portland back into compliance with a federal settlement agreement about police use of force.

City attorneys responded in July to the Justice Department’s sixth periodic assessment with a line-by-line rebuttal of areas where the city claims the Justice Department is moving the goalposts or simply wrong. OPB obtained a copy of the rebuttal through a public records request.

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“The city believed, until recently, that the parties were working under a common understanding of the requirements of the Settlement Agreement,” the city’s response to the DOJ says. “This year’s Compliance Assessment Report, however, revealed numerous areas where a difference in the parties’ understanding led to a DOJ finding of only ‘partial compliance’ with particular provisions.”

The Justice Department declined to comment.

Portland police block off a portion of I-5 after an alleged carjacking and shooting Monday, Dec. 6, 2021.

Police investigate the scene where an officer shot and killed one person during an alleged carjacking Dec. 6, 2021. The city of Portland has accused the U.S. Department of Justice of stating incorrect information and misinterpreting police programs while the two sides negotiate how to bring Portland back into compliance with a federal settlement agreement about policing.

Kristyna Wentz-Graff / OPB

The forceful rebuttal was delivered in a closed-door meeting on July 28, one day after the city and federal prosecutors were in court to update U.S. District Court Judge Michael Simon on the city’s progress in implementing agreed-upon changes. Ahead of that court appearance, the city filed a more upbeat response to the Justice Department, focusing on areas where the city had been successful.

Now, Portland city attorneys say the Justice Department is shifting its requirements. For example, the Justice Department said the city was in only partial compliance with a section requiring the Portland Police Bureau’s Behavioral Health Unit Advisory Committee to advise the bureau on interactions with people in mental health crises. The Justice Department said the city had failed to follow through on a commitment to have the committee review actual police encounters rather than simply advise on policies and training methods.

The city asserted in their response that this is a new requirement made up by DOJ.

“BHUAC is consistently performing those duties, and has been since 2016 — reviewing policies, procedures, and training methods,” the city’s memo states. “DOJ now interprets the stated goal of the paragraph as requiring BHUAC to review the violent encounters themselves. The city disagrees with that interpretation.”

To be freed from the settlement agreement and the accompanying federal oversight, Portland must be found in compliance and remain in compliance with the settlement’s terms for one year. The city nearly accomplished that in February 2020 when it was found in compliance for the first time since the agreement took effect in 2014.

The Department of Justice and the independent group overseeing the agreement, however, found the police bureau’s forceful response to racial justice protests that year exposed significant shortcomings with the bureau’s adherence to its own use of force policies and the city fell out of compliance shortly after.

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In several other sections of the city’s rebuttal, attorneys said federal prosecutors’ facts were simply wrong.

In their periodic assessment, prosecutors said the city had failed to properly hold officers accountable for uses of force that didn’t follow police guidelines. In one particularly egregious case, the Justice Department said the bureau had rescinded discipline on seven different occasions.

“This is incorrect, and it is unclear why DOJ would arrive at this conclusion,” the city’s rebuttal states. “An inquiry by DOJ to the City would have clarified this before it was treated as a compliance issue.”

In the July 27 court appearance, the Justice Department tentatively conceded it may have erred.

“We measure compliance based upon data presented to us,” said Jonas Geissler, the federal prosecutor overseeing the settlement agreement. “If there is an error we are pleased to correct it.”

Geissler said they plan to conduct a more in-depth audit of the cases in question.

The city took issue with Justice Department claims that the police bureau’s K9 unit had a “find and bite” as opposed to the more commonplace “find and bark” policy. The compliance report cited two instances in which prosecutors allege a police dog tracked down and bit a suspect. The city “strenuously disagreed” and said in both cases the order to bite was given appropriately, as confirmed by follow-up investigations.

“It is very concerning that DOJ would include such an assertion in a public-facing document without at least inquiring further,” city attorneys wrote. “Had PPB been aware these rare K9 bite incidents were of concern to DOJ, the supervisor would have taken the opportunity to explain the actual ‘guard and bark’ practice and these incidents.”

Portland isn’t alone in asserting the Justice Department is shifting its expectations for agreements with local police. Last week, New Orleans Mayor LaToya Cantrell, a Democrat, said at a press conference that the consent decree currently in place there made officers’ jobs more difficult, “pestering them with punitive punishment.”

“It seemed like the goalposts would move every time our officers demonstrated real results,” she said. “That it would move every time, keeping us in this consent decree, and I challenged that from day one.”

In Portland, the Department of Justice is both the prosecutor in the settlement agreement and monitoring compliance, placing the city in the position of having to argue with the same entity charged with evaluating its performance. The Justice Department and other interested parties have called for an independent, court-appointed monitor to remedy that conflict, a position the city has been slow to adopt.

In federal court last month, city attorney Robert Taylor indicated that position may be softening.

“If it’s the best way for us to achieve substantial compliance as quickly as we can, that is something we will certainly entertain,” Taylor said.

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