Wheeler, Fish tilt toward police critics
This week, in an unusual development, Mayor Ted Wheeler and City Commissioner Nick Fish intend to defy the wishes of District Attorney Rod Underhill and adopt a policy to require prompt investigative interviews of officers after shootings.
Adopting the proposal would constitute an unaccustomed victory for groups like Portland Copwatch, the Portland chapter of the NAACP, and the National Lawyers Guild.
Following an Aug. 9 council meeting in which police critics found themselves making approving noises of Wheeler and Fish from the audience, Copwatch's Dan Handelman said he is "very surprised, and pleasantly surprised. It was long overdue."
Underhill's office, however, still has concerns, saying the new proposed ordinance does not appear to do enough to keep a newly proposed initial compelled statement separate from a criminal investigation of the shooting. That could infringe on the officer's rights and give them a free pass on any attempt to prosecute them.
"There does not appear to be any provision for walling off or otherwise keeping this statement apart from the criminal investigation," said Don Rees, a top deputy to Underhill.
The vote constitutes the latest installment of the so-called "48-hour rule" saga. Once an esoteric police accountability debate, the rule became a campaign issue, and now has triggered a public standoff between city officials and the most powerful law enforcement official in the county, Underhill.
Part of the Portland Police officers' union contract, the rule said they should not be interviewed by an internal investigator within the two days after an incident, as part of any disciplinary investigation.
Police accountability activists felt that in the event of a shooting, the rule gave too much time for officers and the union to modify statements to avoid administrative discipline. And federal prosecutors who oversee the Portland Police Bureau under a federal court settlement in 2014 agreed.
But while Wheeler supported elimination of the rule while running for mayor last year, his predecessor, Charlie Hales, spearheaded a contract that eliminated the rule before Wheeler took office.
Underhill, who was not consulted during the debate last year, issued a strongly worded memo in March saying that compelling a prompt statement by an officer could have the effect of immunizing them from any prosecution in the event of a shooting that was found to be a crime.
The police bureau had been set to accede to Underhill's wishes. But the lawyer who heads the city's civilian police review unit, Constantin Severe, issued his own memo disagreeing with the district attorney. And when the matter went public, Wheeler stepped in to rescue his campaign pledge, joining with Fish.
After hearings on Aug. 3 and 9, Wheeler and Fish spearheaded an ordinance that reflects the wishes of the activists who have long criticized police practices.
The new proposed policy would require administrative interviews to occur within 48 hours of a shooting, and also calls for the Portland City Attorney's office to get the matter validated by a court.
"We want to be crystal clear," Fish said at the Aug. 9 hearing. "We are not picking a fight with the district attorney. Reasonable people can disagree on this question."
Underhill, for his part, testified on Aug. 3 that he strongly supported the city's goal of taking the new policy to the courts for validation, saying that he acknowledges that his interpretation has not been backed by a court ruling.
The police officers' union met with Underhill in May to discuss the issue, several weeks after Underhill's memo was completed, records show.
But the union has been on the sidelines during the most recent debate, according to Portland Police Association President Daryl Turner. He said that while the group's lawyers agree with Underhill, the debate over what will replace the previous 48-hour rule "is between the city and the Multnomah district attorney. As for us, we agreed to delete it out of the contract, and it was."
Interestingly, the issue of police compelling statements went before voters on the November 1999 ballot, when the ACLU blasted as unconstitutional a law proposed by tough-on-crime groups. Measure 73 would have give prosecutors greater power to force defendants to give statements. It failed, with 53.6 percent of voters against.
But in its Aug. 2 memo arguing for compelled statements of police, the local chapter of the National Lawyers Guild contended that the ability to use deadly force means that police officers should be subjected to a different legal analysis from that afforded the public at large.
"The arguments in this memo are not intended to apply to procedures for obtaining statements from suspects who are not police officers," the memo said. "Police officers are permitted to do things that members of the public are not."