Portland Ignores DA's Advice On Police Use-Of-Force Investigations

By Conrad Wilson (OPB)
Portland, Oregon Aug. 9, 2017 10:01 p.m.

The Portland City Council unanimously passed an ordinance Wednesday that makes clear they won't follow the legal advice of the Multnomah County district attorney and the Oregon Department of Justice when it comes to investigating police officers' use of force.

Commissioners unanimously voted to require Portland officers who use deadly force to give a statement to internal affairs investigators within 48 hours of the event.


"We are not picking a fight with the district attorney," Commissioner Nick Fish said. "Reasonable people can disagree on this question."

Related: Portland Mayor, Council Get Earful On New Police Ordinances

What the city passed Wednesday is a work in progress. It was city leaders' initial attempt to respond to concerns from the public after an intense hearing last week.

The City Council will further refine what happens after police officers use force with amendments as early as next week.

Following two officer-involved shootings in February, Mayor Ted Wheeler compelled officer testimony within 48 hours.

In March, Multnomah County District Attorney Rod Underhill issued a memo that warned against forcing officers to make statements. Citing a 1984 Oregon Supreme Court ruling, Underhill's office said compelled statements by internal affairs could result in a judge overturning a criminal conviction. The legal position was affirmed by the Oregon Department of Justice.

Underhill didn't return requests for comment Wednesday. Neither did Portland Police Association President Daryl Turner.

"We believe we're standing on very strong legal grounds here," Wheeler said to reporters after the vote. "We're adopting a policy that's in place all over the country and in fact in place in other jurisdictions in this state."

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The council also passed a less controversial ordinance that allows the city’s Independent Police Review to make recommendations after internal affairs investigations into alleged officer misconduct. Previously, an officer’s supervisor made recommendations after an investigation.

Commissioners also agreed to take up another ordinance later this month that reestablishes the public’s role in the city’s 2012 settlement with the U.S. Department of Justice over how police officers used force against people experiencing mental health crises.


As part of that settlement, the city set up a citizen review board — the Community Oversight Advisory Board (COAB) — but the board stopped meeting amid controversy and disruptions. Now the mayor wants to create a new civilian oversight board, the Portland Commission on Community-Engaged Policing (PCCEP).

In an unusual move, police reform advocates who frequently criticize city leaders thanked the mayor and other commissioners Wednesday for listening to their concerns.

Jo Ann Hardesty, president of the Portland NAACP, said she and other members of the Albina Ministerial Alliance Coalition for Justice and Police Reform "commend" the city for requiring prompt testimony after officers use deadly force.

"I guess I should have paused when I said we commend you, just so you could have that sink in," she said.

"I don't even know what that means," Wheeler joked in response.

Portland Mayor Ted Wheeler in late May 2017. The public loudly criticized several new ordinances proposed for the Portland Police Bureau.

Portland Mayor Ted Wheeler in late May 2017. The public loudly criticized several new ordinances proposed for the Portland Police Bureau.

Bradley W. Parks / OPB

Some members of the public said they wanted to see officers provide compelled testimony with 24 hours or even by the end of their shift after using deadly force.

Others were concerned about a segment of the ordinance that gives discretion to the police commissioner and the chief of police to "defer an administrative investigation until after the criminal investigation is completed where circumstances suggest such deferral is warranted in a particular case."

Lindsey Burrows, who spoke on behalf of the National Lawyers Guild, said the exception is vague and gives the city too much leeway.

"It creates an exception so wide it will swallow the rule," she told the City Council. "It's insufficient for the city to tell the community, 'Just trust us.'"

Burrows said the vagueness threatens to undo the compelled testimony when it is most needed.

"Instances where the chief of police or police commissioner would feel the need to use the exception are likely the same instances where the administrative investigation is most important," Burrows said.

City attorney Tracy Reeve said that in modern police policies around the country its common to have a clause that allows for discretion by a department's leadership. She pointed to Seattle as one example.

"They do an initial, gut-check evaluation of whether a shooting looks like it's likely to be, put colloquially, a bad shooting because that's the shooting that has a chance of meriting a criminal prosecution," she said.

Wheeler asked Burrows, with the National Lawyers Guild, whether her organization would "be standing with with us" should the city ever find itself in a situation in which a judge agrees with the Multnomah County prosecutor and the Oregon Attorney General and throws out the criminal case of an officer who used deadly force because the city compelled an interview.

In recent history, only one Portland officer has been charged criminally for using deadly force on the job.