Last week, Portland City Councilors passed a new policy barring law enforcement of all kinds from wearing masks. The policy itself would also direct the Portland Police Bureau to investigate someone who engages in law-enforcement activity, such as detaining someone, and doesn’t show proper credentials.
The ordinance passed in an 8-4 vote, and was introduced by Councilor Sameer Kanal and co-sponsored by Councilor Elena Pirtle-Guiney and Angelita Morillo. Opponents of the law say the policy raises concerns around labor laws and workload for PPB officers. Joining us to share more on the policy and its impacts are PPB Chief Bob Day and Councilor Morillo.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Portland City Councilors recently passed a new policy barring law enforcement of all kinds from wearing masks. It also directs the Portland Police Bureau to investigate people who engage in law enforcement activity, such as detaining someone without showing proper credentials.
The ordinance passed in an 8-4 vote after a spirited debate. Proponents say that even if it is unlikely to survive a legal challenge, the City has to do something to stand up to the Trump administration. Opponents say this is a costly and symbolic gesture.
We’re gonna hear from both sides right now. Angelita Morillo was one of the co-sponsors of the ordinance. She’s a City Council member from District 3 – that stretches from inner Southeast and a little bit of inner Northeast Portland to I-205. Bob Day is the Portland Police Chief. It’s great to have both of you back on the show.
Angelita Morillo: Thanks so much for having us.
Bob Day: Morning.
Miller: Angelita, first, I want to start with the basics. What does this ordinance actually say?
Morillo: This ordinance requires that there are identification standards for our Portland police officers. It creates credible additional authority for anyone who’s acting as a law enforcement officer in Portland. It requires PPB to verify when someone is acting like a cop without having any identification. And it requires documentation, reporting of these incidents, and creates an enforcement path for that, if those needs are not met.
Miller: Chief Day, before we get to more details about the implementation of this ordinance, the feasibility, legal questions, I’m just curious if you agree with the basic idea behind it. Should law enforcement be, in most cases, for example, prohibited from masking their identity?
Day: Yeah, I believe that we have a responsibility to be able to be identified by the community, and Oregon law already provides for that for all local law enforcement within 14 days. So Police Bureau’s been a leader in that statewide. I don’t see a reason why we should not be able to have access to the identification of our law enforcement officers, regardless [if they are] state or federal.
Miller: So you agree with the idea behind this. But, of course, it’s the implementation where the debate has been raging for weeks or months, at this point. So Councilor Morillo, why did you want to co-sponsor this ordinance?
Morillo: I wanted to co-sponsor this ordinance because I think that local jurisdictions have a responsibility to do everything we can to try to address the fact that there are masked men on our streets who are kidnapping our neighbors and we have no idea who they are. And this has created a real public safety issue, as we’ve seen, because there are also people who are posing as ICE agents who are kidnapping people, assaulting them, stealing things from them, that sort of thing. And we have no idea who is doing what and for what purpose. So, this is our way of making sure that we have some sort of accountability for that type of behavior, and so that we can create a record and use our own surveillance state against the people who would come into our community to do us harm.
This is a change because it’s not just saying that police can use their own personal ideas of when they should do enforcement. It’s actually creating a requirement for looking into this, tracking this. That becomes a publicly available report that will be given to the public, so that we can see how, when and where ICE is operating,
Miller: Right. So Chief Day, what exactly does this ordinance require that your officers do going forward?
Day: There’s no change in requirement for our officers going forward. Our behavior will be the same as it was for the last 18 months. I gave clear direction, a year ago, that we would respond to these types of calls. I gave clear direction that we would document these types of calls. So there’s really no change for us regarding the ordinance. It just outlines what we’ve already been doing.
Morillo: I would say that’s not accurate. Under the status quo, PPB officers have discretion to not intervene in situations or do reporting. And this ordinance actually requires an obligation to investigate and report when someone in a mask is doing something that only law enforcement can do.
Miller: So Councilor Morillo, are you saying there have been times when Portland police officers have not recorded the operations of federal masked law enforcement in the last 18 months? Is that what you’re saying?
Morillo: I’m saying that we wouldn’t know if they had or hadn’t done that because there was no obligation of requirement before. Now, it’s not just up to someone’s discretion if they feel like doing it. It’s up to the standard of our updated code.
Miller: Chief Day, I want to give you a chance to respond to that.
Day: Well, they’re not going to know, nobody’s going to know whether it was discretion or not because the genesis of the work is that we’re in the field and we’re making those decisions. So just because it’s on paper doesn’t change the behavior of what we’re expecting of our officers. It’s been clear from the beginning that they would investigate these calls for service where somebody may be committing a crime. That’s what we do every day. So I don’t see any change at all in our officers’ behavior.
We’ve responded to several of these types of calls over the last year-and-a-half. We’ve investigated them. We’ve documented one particular case. We made an arrest. We’ve made several arrests over the years for impersonating a police officer. So this is not a new mandate, a new direction or a new demand. This is a reasonable expectation that we’ve had of our officers, from the beginning. So like I said, it’s very performative to put it on paper. Maybe it feels good to do so, but it doesn’t change the dynamic of what we’re doing.
[Voices in the background]
Miller: I should say, given that folks hear some voices in the background, Chief Day, you are at the airport right now. So there’s some announcements in the back there. Is your main issue with this ordinance, Chief Day, that you’re already doing this or do you have other substantive concerns about the ordinance?
Day: Yeah, I have two primary concerns. One, is that there’s been a false expectation set amongst the community that this is going to change the behavior and performance of federal officers. And it will not. The courts have been clear that we can’t do that. I fully agree with the intent here. Its impact is what concerns me, these false expectations that there’s going to be some sort of higher level of safety provided for Portlanders because of this ordinance. And the courts are clear that we cannot dictate the behavior of the feds. So that’s one concern I have, that we will be disappointing a population that’s already struggling and impacted terribly by the behavior of the federal officers.
Secondly, this just adds additional administrative and bureaucratic responsibilities, in the Police Bureau, for an organization that’s already been leading the state on proper identification of its members. So we now have additional reporting requirements, exceptions, policy and training that we have to train to at a time when it’s not changing, once again, the actual operational effect this has for the community.
Miller: Councilor Morillo, I want to give you a chance to respond. I should say that your colleagues, some of your fellow co-sponsors, for example, Elana Pirtle-Guiney, said, “barring a miracle in the courts, it will not allow us to unmask federal agents.” So your colleagues have, it seems, tried to temper the expectations of Portlanders who might see a headline and think that this action of the Portland City Council will mean that federal agents no longer wear masks. Let me just start with that. Do you agree that this will not prevent federal officers from doing that?
Morillo: Well, I want to say a few things because there’s a lot to unpack in what Chief Day just said. For one thing, I am the only immigrant on the City Council. I’m a Paraguayan immigrant. For another thing, Councilor Kanal worked for eight months doing community engagement with immigrant rights groups, with the ACLU and with the police, to draft this ordinance. So there was extensive community involvement, and the community was the one that pushed for this effort. Thirdly, we did not say that this is going to magically create our ability to unmask federal agents. The Supremacy clause of the Constitution is very strong, and that does create limitations for local governments trying to protect our community members against federal agents who are encroaching on people’s rights.
However, there is a double bind here. Because Chief Day is purporting that our officers already do all of this, so this changes nothing. Yet he’s also saying that passing this ordinance means that we are changing workload, training and requirements. So either we are the Gold standard and we are already engaging in this behavior, or we are not. And to me, that indicates that we are not. There is absolutely a difference between an officer having discretion to do something versus actually being required to do it.
To me, the most important part of this ordinance and the part that I have always spoken about, because I have never claimed that this is going to force federal agents to be unmasked, is that this is our way of turning our own surveillance state, at the local level, against federal agents who come in. Because when we create reports that have tracking of where federal agents have been sighted, community members have actually been doing this work for free. They have been organizing together to track where ICE agents are, how they’ve been kidnapping our neighbors, who have gone missing. They are doing all of that for free.
So why shouldn’t we use the surveillance state, that we pay for with our tax dollars, to have our police actually do some of that work, and then create a public report that the community can access so that they are empowered with information to protect themselves? I think that that is the core part of this ordinance that I have discussed. And any assertions that we have stated that it does something different are not true.
Miller: I want to give Chief Day a chance to respond to the money question. But just so I understand, and we can all have some clarity about what you are expecting Portland police officers to do … Let’s say that there is some unmarked black SUV with people in masks who are purporting to be immigration agents, [and] they go to, I don’t know, some place somewhere in Portland and detain someone, what do you want Portland police officers to do? When you say you want them to act as surveillance, what does that entail?
Morillo: It means that if you have a group of men in masks who are kidnapping a woman off the street, you have no idea if they are ICE agents or not, right? They could be kidnappers for all we know. It requires that federal law enforcement actually maybe pull them aside, try to get some sort of identification or verification from them...
Miller: When you say “federal,” you mean it requires that Portland police officers pull the people purporting to be federal agents aside and ask for their identification?
Morillo: Yeah, they should be asking. If there is a random masked person, how are we supposed to know if they are federal agents or not? They should be asking for the indicia of authority, and then if that indicia is not given, there should be a report. Something that is written down and tracked as to when, where, time, place, who, what was going on. ICE needs to be able to verify that.
Miller: Bob Day, is that happening right now?
Day: Yeah, so let me clarify a couple of things. Maybe I wasn’t as clear as I wanted to be. It does not change our response to the question you just posed. When I say that this changes things, it’s the internal administrative portion that it changes. So I just want to be clear that it’s not a contradiction, because I was talking about the operational piece on the street that will not change. The internal accounting of exceptions and things like that is what I was referring to. And this is already happening, as I stated.
When we get a call for service that somebody believes something’s happening that’s illegal, we show up, bound by the Constitution, we have reasonable suspicion, we have probable cause. We investigate that. When we no longer have reasonable suspicion or probable cause, then we disengage, as we have done consistently for the last 18 months. When we get a call for service that is related, potentially, to immigration or ICE concern, we show up. We do the exact same steps as we would in any other lawful setting. And then we record that document. We went to this, we wrote whatever the outcome was.
We cannot require them to show their faces. We cannot require them to give us a picture ID. We use all of the information available at the time to establish that initiative authority, which the ordinance, it’s clear, is very, very broad.
Miller: Are they, in general, going along with that? I mean, are you satisfied, are your officers satisfied that, yes indeed, these are federal officers lawfully carrying out their duties? Are they cooperating?
Day: Yes. Portland police officers take their responsibility very seriously. They, first and foremost, took an oath to protect the Portlanders and their rights. And I have also spent a tremendous amount of time in the last 18 months with our immigrant community. We have several officers who are immigrants themselves and the children of immigrants. We have navigated this on a national level that we can be proud of. We’re the only agency in the United States that’s testified in federal court against the behavior of federal law enforcement.
Portland has really led this, and the Portland Police Bureau has really led this, as an example nationally, on how to navigate this challenge and provide this high level of safety for Portlanders. So I’m incredibly proud of what we’ve done.
Miller: I want to get some more clarity also on the other point that Councilor Morillo was making about the money you’re saying this is going to cost. You started to get into that a little bit, but I want to fully understand it. You’re saying, in the back end, this is going to be more paperwork?
Day: Anytime you create a new policy, you’ve gotta be able to first craft the policy, then you have to be able to train to the policy. That doesn’t happen in a vacuum. Then you have to put measures in place to make sure that the policy is being adhered to. And then when there are gaps in the policy or there’s failure to follow the policy, you have to have follow up in that regard. So making policy isn’t just something you say. It actually has to be operationalized.
Second is the exception requirements for when officers can mask. There are several, so we’re going to have to train to and make sure that officers are clear when that can and cannot happen. And for those exceptions to be granted, it requires supervisory notification. It also requires documentation by the supervisor. So if an officer wants to wear a mask because they’re directing traffic at 3:00 in the morning in 30-degree weather on I-84, they have to get an exception granted, that has to be recorded, who they are, who granted the exception, etc. So it is just more administrative time and cost for us when we could be addressing other issues.
Miller: Councilor Morillo, I want to give you the last word. I know you’re almost out of time, but I just want to look at the big picture for a second. You’ve made the point in Council arguments that it’s up to local governments now, who oppose the Trump administration, to do everything in their power, and even some things that need to maybe be argued in court that are not yet in your power, to prevent the Trump administration from carrying out some of their priorities. Given that, what else do you have in mind right now?
Morillo: I will make extra time to answer some of these questions because we can find a path to cover paperwork. But I don’t want to assume that there needs to be extensive training to explain to Portland police when they can or can’t wear a mask. I’m sorry, but this is just not that complicated. And the policy is very clear about when and where there are exceptions for when officers are allowed to wear a mask. We should be substantiating claims that the Police bureau or any other bureau are making about the costs of enforcing ordinances.
We do have a duty to do everything we can at the local level, and when we are in unprecedented times, it means that we are also going to be facing unprecedented legal decisions. This, I think, is eventually going to end up in a situation where there was someone who kidnapped a person and it was unclear whether or not they were a federal agent. And Portland police or any other police across the country have to intervene, assuming they’re a kidnapper. I assume that this will end up being a federal court case [concerning] what happens when a police officer unknowingly intervenes, trying to help someone against a kidnapper, and then it turns out it was a federal agent.
These are unprecedented times. We are going to be creating precedent in policy, and Portland has never been shy of being a leader on this. So I think that we shouldn’t be shy about defending our immigrant communities with every tool we have right now.
Miller: Angelita Morillo and Bob Day, thanks very much.
Morillo: Thank you.
Day: Thanks, Dave.
Miller: Angelita Morillo is a Portland City Councilor from District 3 – that stretches from inner Southeast and a little bit of inner Northeast Portland to I-205. Bob Day is the Portland Police Chief.
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