When Gov. Kate Brown announced a special Oregon legislative session June 16 – after declining to hold one for months – she said her hand had been forced. Urgency over the police killing of George Floyd and the demands for reforms it engendered across the country were too pressing.
Lawmakers quickly answered the governor's call. In a whirlwind three-day session in late June, the Legislature took up six separate police reform bills, passing them with uncharacteristic speed and near unanimity.
Now, with the session in the rear view, many observers who’ve had time to study the legislative handiwork seem to agree on one thing: The results say more about what still needs to be done than what has actually changed.
“Certainly it is a first step,” said Nkenge Harmon Johnson, president of the Urban League of Portland. “We’ve just touched on the edges, it’s nowhere near as far along as we should be.”
As furor over Floyd’s death lit a fire under policy makers across the country in the last month, some states have drawn headlines with the swiftness of their reforms.
In New York, lawmakers rushed to ban choke holds. In response to mass demonstrations, many cities decided to ban tear gas. The state of Colorado – in a bill looked to favorably by some reform-minded Oregonians – created criminal penalties for officers who don’t report misconduct by their colleagues, and opened police to civil lawsuits.
Oregon legislators prohibited the use of choke holds– which critics say have led to the unjustified deaths of many people of color at the hands of police – except where deadly force is warranted. And police are allowed to continue using tear gas if they first warn protestors and if they determine that a "riot" is occurring; Oregon law defines a riot as just five people acting in a violent manner.
“I’ve probably witnessed multiple riots at different bars,” quipped Juan Chavez, an attorney at the Oregon Justice Resource Center who called the new law too lax.
Tear gas used under new standard
In fact, the Portland police deployed tear gas at a North Portland protest late last month using the new “riot” standard just hours after Brown had signed that bill into law. That drew an angry response from House Speaker Tina Kotek, a Democrat who represents the district where the tear gas was used.
Kotek called the police action an “unnecessary escalation” and charged that it ran afoul of the new law.
“The declaration of a ‘riot’ was an abuse of the statute,” she wrote in a letter to Portland Mayor Ted Wheeler. She added later in a tweet that she would "support going stronger if we didn't get it right."
The chokehold ban also came in for criticism among activists. Jason Kafoury, a Portland attorney who frequently handles lawsuits alleging police misconduct, said the bill does set a stricter standard for their use. But he said such holds could still be deployed all too frequently.
“If you read what you can use deadly force for, it includes arson, escape … you’re basically saying you can do it for any felony,” he said.
Sen. Lew Frederick, D-Portland, has long worked on police accountability legislation and said he also wished the choke hold and tear gas bills went further. But he said the these and the other four measures passed by the Legislature were designed to build consensus and show that legislators could quickly begin taking steps to change policing in Oregon.
“We really needed to make sure that we did something,” he said. “Can you imagine if we had spent the time arguing about these issues and got nothing accomplished? People would have gone nuts.”
Quick action a change from previous session
Getting quick action was also no small accomplishment. The measures had strong bipartisan support, a switch from recent sessions where Republicans have fought against the Democratic majority. They’ve used parliamentary procedures to slow down legislative action – and more significantly – walked out of the building to deny the quorum needed to conduct business.
The other four police bills passed by the Legislature also demonstrated the successes and limitations of the flurry of activity at the special session. Those bills involve:
-- Appeals of police disciplinary cases. An approved measure seeks to make it harder for officers who have been fired or faced other discipline to appeal to an independent arbitrator. An identical bill came close to passage earlier this year only to be stymied by a Republican walkout on an unrelated issue. It was the only bill that wasn't amended during the special session – and the only one that passed over the strong objections of the Oregon Coalition of Police & Sheriffs, the statewide federation that represents police and sheriff deputy unions around the state.
The bill is arcane. It requires police contracts to include discipline standards that can’t be appealed if they’re followed by police leaders. Experts said they were unsure whether the bill would accomplish their aims.
“I am the first to recognize [this bill] is not a panacea,” Rob Bovett, the legal counsel for Associated Oregon Counties, told legislators. “It won’t fix all the problems.”
-- Requiring police officers to intervene or report wrongful actions by their colleagues. Top law enforcement officials said most local police and sheriff's office have similar policies. Supporters say they hope putting it into law will add weight to existing rules and at least set a floor for agencies.
Kelly Simon, interim legal director of the Oregon ACLU, praised the bill but pointed out that it doesn’t provide any stricter standards for use of force.
-- Setting up a new statewide database on police disciplinary cases – and requiring police agencies to check it when hiring an officer who has worked elsewhere. The idea is to prevent "bad-apple" officers from simply moving to another agency.
Kafoury, the Portland lawyer, said the bill is an improvement. But it fails to include a lot of complaints against officers – particularly those involving excessive force – that can’t be substantiated.
-- Setting up a new committee to study "transparent policing and use of force reform." Originally the bill called for the state attorney general to independently investigate cases of police actions resulting in death or serious injury. But that was deemed too complex of an issue for the special session.
Frederick said he believes the committee – which is charged with issuing recommendations for further legislative action by the end of the year – will help keep the pressure on.
“We have made it clear there are next steps,” he said. “And now we can move along those next steps” toward “changing the culture and a number of other things within the system.”
Harmon Johnson, the Urban League of Portland leader, said she is working with a coalition of community groups that will be developing their own ambitious agenda for legislative action. She and several other groups asked legislators to provide $2.5 million in funding for these groups to help “re-imagine” policing in Oregon.
“The community that’s been impacted by this issue has to be at the table,” said Kayse Jama, executive director of Unite Oregon. “The community also has to be resourced in order to have the right knowledge. These are the crucial pieces.”
Frederick said such funding is unlikely, given how lawmakers are already facing huge budget cuts because of the COVID-19 pandemic. But he said the legislative committee will work closely with groups seeking reform.
In any event, there is no shortage of ideas being floated.
Activists are talking about reducing the “militarization” of police and revamping the state’s police training regimen. They want to narrow the “qualified immunity” protections police have from civil suits and to be more aggressive about taking away state certification for officers with lengthy discipline records.
“This isn’t about tweaks around the edges,” Harmon Johnson said, adding that she wants to find ways to shift many responsibilities away from police. “I hope it’s going to be a job for far, far, far fewer people in general.”
“We have a long way to go until we get to a culture and community where the police represents public safety,” said Simon of the ACLU, “and the community has the relationship with the police that they want to have.”