On Feb. 9, Portland Mayor Ted Wheeler called up his police chief, Mike Marshman.
Twice that day, Portland Police officers had used deadly force.
Wheeler, who is also the city’s police commissioner, wanted statements from the officers involved.
“He goes, something to the effect, ‘I want assurance that these interviews will take place within 48 hours,’” Marshman said, recalling his conversation with Wheeler.
“And I said, ‘Yes sir, we will do that,’” the chief recalled.
Marshman said he assembled members from the Multnomah County District Attorney’s Office, the Portland Police Bureau’s Internal Affairs Unit, the Independent Police Review and detectives.
“Nobody was happy because, investigatively, you’re getting the interview out of order, but they understood the political pressure,” Marshman said. “Everybody was upset with me that night.”
A grand jury later deemed both Feb. 9 shootings were justified.
But those were the last statements compelled from officers by the Portland Police Bureau.
Police reform advocacy groups brought the issue to light this week by questioning a March memo that led to changes in the way Portland deals with officer-involved shooting investigations. They worry those changes could add days or weeks to the time it takes an officer to make an official report.
In March, Multnomah County District Attorney Rod Underhill issued a memo, arguing compelled statements — like those made by officers in February — could prevent his office from making criminal prosecutions.
Following a use of deadly force, the district attorney’s office opens a criminal investigation to determine whether or not the officer’s use of force is justified. At the same time, internal affairs opens a more detailed investigation into the officer’s conduct, looking at things like whether the officer followed department policies.
The potential problem arises when an officer exercises their constitutional right to remain silent during the criminal investigation.
Citing a 1984 Oregon Supreme Court ruling, Underhill’s staff wrote that forcing an officer to make a statement during an internal affairs investigation is violating an individual’s right to remain silent.
In exchange for the compelled statement, public employees are granted “transactional immunity,” according to Underhill’s interpretation of the high court’s ruling. That means those employees cannot be forced to incriminate themselves in an administrative investigation.
“Can something occur on the administrative side that actually impacts very dramatically the criminal side investigation?” Underhill said during an interview. “The answer is yes.”
Oregon’s law is unique, according to Underhill. Elsewhere around the country, departments have built assurances to keep internal affairs and criminal investigations separate.
Underhill said the Oregon Supreme Court’s ruling directly addresses that concept. He said the ruling doesn’t “recognize the establishment of a wall.”
Part of the high court’s ruling, Underhill explained, is that they don’t believe it’s possible for separate, concurrent administrative and criminal investigations to be done successfully.
“I’d like [the Oregon Supreme Court] to change that part of it because I think that would help the community’s confidence in our work,” Underhill said.
The Oregon Department of Justice reviewed Underhill’s March memo and issued a statement saying it is legally correct.
Portland’s latest contract with police officers did away with a “48-hour rule” that allowed officers to delay for up to two days in giving statements to internal affairs investigators after using deadly force.
Police reform advocates praised abolishing that rule because they wanted officers to make official statements on the use of force closer to the time of the incident.
But those accountability groups are now arguing that Underhill’s March memo means officers’ statements to internal affairs will be delayed weeks — at least until a grand jury completes its determination in the criminal case. On average, that can take around 40 days or more.
“There needs to be concurrent criminal and administrative investigations of officer involved shootings,” said Constantin Severe, director of the Independent Police Review.
Realistically, he explained, the administrative investigation is more relevant since so few officer involved shootings result in criminal prosecutions. Severe could only recall of one in Portland during the last decade.
“The city has an interest in making sure that the public has confidence and faith in the Portland Police Bureau,” Severe said. “And that if there’s an officer-involved shooting, that the public has faith there will be a robust criminal investigation and a robust administrative investigation.
“If either part of that equation is faulty or weak I think public faith is undermined,” he said.
Underhill said there are numerous aspects of an internal review that can be done while his criminal investigations remain open.
For now, the Portland Police Bureau is following Underhill’s directive to not compel testimony from officers.
Since the DA’s March memo, there have been two incidents where officers used deadly force.
In at least one of those cases, the officers were interviewed by internal affairs only after they were cleared of criminal charges.
Editor’s note: This story has been updated to correct the spelling of Constantin Severe’s name. OPB regrets the error.