Portland’s City Council on Thursday directed the police bureau to compel officers involved in fatal shootings to give statements to internal affairs investigators as soon as possible.
The council unanimously supported an ordinance that requires officers to give statements within 48 hours of a shooting, unless they are physically incapacitated.
The compelled statements would be used to evaluate whether an officer violated his training and should be disciplined or fired.
Thursday's action further codified a city rule put in place Aug. 9. It also makes the rule take immediate effect, rather than waiting for a court review.
For Mayor Ted Wheeler, who has tried to position himself as a reformer on policing issues, the unanimous vote was a significant political victory.
“With regard to the 48-hour rule, ending it has been part of my policing agenda since the day I decided to run,” he said at the outset of the council’s deliberations.
For Commissioners Nick Fish and Amanda Fritz, the policy also represents a defense of changes they pushed for in the past.
Both Fish and Fritz cast unpopular votes last year in favor of a new contract with the police union. It gave officers pay raises in exchange for striking language in the contract that had long protected officers from giving testimony in the first 48 hours after a shooting.
But the new policy of promptly compelling officers to testify places the city, and the Police Bureau, at odds with one of its closest criminal justice partners: Multnomah County District Attorney Rod Underhill.
Underhill had sought to have the compelled statements to internal investigators delayed until after he’d cleared officers involved in a shooting of any criminal charges.
In a March memo, he argued that if internal affairs investigators compel officers to testify, it creates a risk that an Oregon court could find the officer entitled to immunity from criminal prosecution.
“Legally, violating an officer's right to remain silent will result in a criminal investigation sanction that, at a minimum, will suppress all evidence that the state cannot prove was obtained wholly independently of the tainted statements,” Underhill wrote.
In July, the Police Bureau briefly adopted a directive in keeping with Underhill’s recommendations, until the City Council intervened.
After hearing testimony from advocacy and accountability groups like the ACLU, the Albina Ministerial Alliance, and the Lawyer’s Guild, Wheeler and Fish decided to split with Underhill and craft a new ordinance.
Underhill declined to comment on the new city policy Thursday.
“The mayor and I believe that a firewall can be placed between criminal and administrative investigations, as is the policy in virtually every other state,” Fish said Thursday.
Two weeks ago, the council adopted — but did not fully implement — a version of the ordinance that would have represented a compromise of sorts with Underhill.
It required officer statements within 48 hours of a fatal shooting, but gave the mayor broad authority to waive that requirement in cases where criminal prosecution of an officer seemed like a possibility.
But advocacy groups that pushed for prompt officer interviews viewed that as a loophole and universally panned it, prompting Wheeler and Fish to change course again.
The ordinance the council adopted Thursday only allows internal affairs to delay interviewing officers after a shooting if the officer is “physically incapacitated.”
T. Allen Bethel, president of the Albina Ministerial Alliance, noted how dramatically the council’s ordinance had changed.
“Thank you for adopting many of the ideas of the stakeholders,” he said.
Casting his vote, Fish called Wheeler humble and complimented his willingness to change his approach.
“That’s why he’s poised to get a 5-0 vote on yet another really complex issue that’s come before this council,” Fish said.
After his vote, Wheeler acknowledged that the Police Bureau still has considerable work to do crafting a system that will stand up to legal scrutiny and ensure information from an internal affairs investigation can’t leak to homicide detectives working on the criminal investigation of a shooting.
“This is a tried and true strategy. The legality of this really hinges on the degree to which we can maintain that firewall,” Wheeler said.
The council also voted Thursday to reconstitute a troubled community advisory body — formerly known as the COAB. It was originally created as part of the city’s 2012 legal settlement with the U.S. Department of Justice over police officers using excessive force against people with mental illness.
The group will now be the Portland Committee on Community-Engaged Policing, and will report directly to the mayor’s office. Its work will include assessing the city’s compliance with the DOJ settlement agreement, assisting the Police Bureau’s office of community engagement, and reviewing Police Bureau policies and directives.
It’s 11 members will be selected by the mayor and City Council, with input from a selection panel of 5 community members.
“This finishes the easy part," Wheeler said. "Now the hard work begins."