But a federal judge on Tuesday directed all involved to go back to mediation one more time to try to bridge lingering differences regarding a policy to govern the use of the police body-worn cameras and whether sergeants, as well as higher-ranking officers, should also be held accountable for improper use of force during protests last year.
The Justice Department in April issued a formal notice to the citythat it had failed to meet key reforms under the settlement, citing inappropriate police use and management of force during last year’s racial justice protests, inadequate training and sub-par supervision by higher-ups.
The city had agreed to most of the remedies sought by federal lawyers.
Yet the judge heard Tuesday from some community activists who have been parties to the settlement — the Albina Ministerial Alliance’s Coalition for Justice and Police Reform and the Mental Health Alliance — who say they don’t go far enough.
They’re concerned, for example, that the latest agreement moving forward with a body camera program doesn’t include a written policy on how the cameras will be used. They want it spelled out, for example, that the Police Bureau will bar officers from previewing body camera footage before giving a statement to investigators after using deadly force.
“A bad body worn camera policy will likely undermine the goal of this settlement agreement,” attorney Juan Chavez, representing the Mental Health Alliance, told the court. He said the tentative agreement is now silent on what restrictions will be placed on the use of the cameras.
The tentative agreement had been reached after five mediation sessions were held before U.S. Magistrate Judge Stacie F. Beckerman this fall.
U.S. District Judge Michael H. Simon urged lawyers from the city, the Justice Department, the police union and the community groups to “go back for one more mediation session ... to see if there’s any way to close this gap.”
Simon suggested that maybe “some creative compromises” can still be reached.
The settlement, approved by Simon seven years ago, followed a federal investigation that found Portland officers used excessive force against people with mental illness. It called for widespread changes to use-of-force and Taser policies, training, supervision and oversight, a restructuring of police crisis intervention services and quicker investigations into alleged police misconduct.
The Portland Police Association, city attorney and Justice Department lawyers had signed the tentative agreement. Top officials from the U.S. Department of Justice in Washington, D.C., had given their approval of it, and it was expected to go before the City Council for a vote on Dec. 2. But Simon urged that timeline be scrapped.
Portland City Attorney Robert Taylor said the tentative pact reached “may be as good as we can do under the circumstances,” but he said the city would agree to return to mediation “to give it another additional try.”
The body camera policy, how the city transitions to a new police accountability system and what ranks of officers should be investigated over the improper use of force during protests last year proved to be the more contentious areas during mediation.
While the city agreed to make changes, it didn’t admit that it had failed to meet the settlement requirements.
It’s clear whatever future reforms are ultimately adopted, the city will face continued oversight from the U.S. Department of Justice for at least another three years, as the federal agency is unwilling to go away until it’s convinced that the city’s future, voter-approved community police oversight system actually works and is effective.
Under the tentative agreement, the city agreed to:
— Adopt and put in place a body camera program with a policy that complies with the city’s bargaining obligations with the police union but also is reviewed and approved by the Justice Department. The city must start the program within 210 days of the court approving the agreement.
If the Justice Department doesn’t approve of the program or policies, the Justice Department can take the city straight to court to seek enforcement.
The Rev. LeRoy Haynes, a co-chair of the Albina coalition who has spent the past two decades pushing for police reforms, said having a body-worn camera policy in the agreement that’s adopted into the settlement “would have more impact” on the police force. Chavez said it would ensure the terms of the camera program “survive our collective memory.”
— Fund an outside consultant to review Portland police use of force and response to protests in 2020 and use the findings to help identify training needs for officers.
— Fund and hire a civilian dean of police training.
— Ensure officer reports on force and after-action reviews by supervisors show who wrote each report and review with all dates and times noted.
— Have the city’s Independent Police Review office investigate and identify any lieutenants or supervisors of higher rank from the specialized crowd control Rapid Response Team who directed or allowed officers to violate the bureau’s force policy and failed to ensure officers and supervisors completed required use-of-force reports or reviews from May 29 through Nov. 16, 2020. Once the supervisors are identified, the police chief and police commissioner would hold them accountable for violating any bureau policies on use of force.
Portland police used force more than 6,000 times during those months, according to the Justice Department. Police sometimes targeted people who attended protests but weren’t involved in any violence or focused on people simply because they were slow-walking away when ordered to leave, the Justice Department previously reported.
Federal lawyers also highlighted the repeated “misunderstanding of constitutional limits on force,” with officers conflating active versus passive resistance as the basis for firing rubber bullets and other less-lethal impact munitions during the protests. Supervisors frequently failed to investigate or analyze their officers’ use of force and gave blanket approval of force with no real analysis, they found.
— Have the City Council and city auditor each draft and give the Justice Department their plans on how the city will transition from the Independent Police Review office to the voter-approved Community Police Oversight Board.
The city will adopt whichever plan the Justice Department deems acceptable.
The auditor has pushed the city to make sure the Independent Police Review staff and supervisors are guaranteed their jobs or other city jobs in the future to encourage them not to leave before the new board is in place and operating.
— Identify the overtime costs that stem from training police in annual police budgets.
—Share bureau’s annual report with community members in each of the bureau’s patrol precincts.
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