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By Maxine Bernstein
oregonlive.com
PORTLAND, Ore. — A federal judge on Tuesday strained to understand why the Portland police union insists on giving officers the chance to view body camera videos before writing reports, even after using deadly force.
U.S. District Judge Michael H. Simon Tuesday urged the city and federal Justice Department lawyers to consider if a court-ordered monitor would be warranted now as they enter mediation before U.S. Magistrate Judge Stacie F. Beckerman next month to address an unresolved impasse on stalled Portland police reforms. (Maxine Bernstein/oregonlive.com)
While the matter will go before a state arbitrator later this year, U.S. District Judge Michael H. Simon focused on the dispute during a four-hour status hearing on the city’s long-standing settlement with the U.S. Department of Justice on police reforms.
Simon recommended nine years ago that the Police Bureau equip officers with body-worn cameras but Portland remains the largest municipal police agency in the nation without the cameras, stymied in part by disagreement over officer access to the video.
What’s wrong, the judge asked, with officers writing or providing a statement about their “subjective” understanding and recollection of what occurred before watching camera video, then viewing the footage and following up with a supplemental report to include anything they may have forgotten.
“Those three steps, I think, would be very effective in the truth-seeking process,” Simon said.
Attorney Anil Karia, who represents the Portland Police Association, said officers are eager to wear body cameras and the union has proposed a policy similar to one followed by the vast majority of police departments.
Officers aren’t trying to get a “leg up on a game” by reviewing video before writing a report, Karia told the judge.
“We want comprehensive truthful and accurate police reports given the importance that the police reports play in the grander scheme of our criminal justice system,” Karia said. “That is not a position that the police union is pulling out of thin air.’’
But Justice Department lawyers made it clear they’re adamantly opposed to the union’s proposal, though they were reluctant to say yet what step they’ll take should an arbitrator adopt the union’s proposed policy.
“We will await the final policy before making any decision on how to proceed,” Assistant U.S. Attorney Jared Hager said.
The Justice Department isn’t seeking to prevent officers from viewing videos before they write their daily police reports, but only when they use force that causes serious injury or death, Hager said.
“The chicken-little fear of the sky falling on the criminal justice system is perhaps overstated,” he said.
While a state arbitrator is likely to weigh what other police agencies do, that shouldn’t be the bellwether in determining Portland’s policy, Hager argued.
[EARLIER: Portland PD union, city submit different BWC proposals on when cops can review footage]
Portland is unique because the Justice Department ordered the bureau to adopt body cameras because police violated the settlement by failing to properly track, report or manage uses of force, he said.
“There is no comparison for Portland because the genesis of this body-worn camera arises” from a breach of the agreement, Hager said.
The settlement, approved by Simon in 2014, 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 Justice Department lawyers also said they were dismayed that the city agreed to two other provisions in a tentative body camera policy: limiting supervisors to review up to three videos per officer per year for their annual performance evaluations and not allowing supervisors to view any live video.
“If I told my boss they can only read three of my briefs, I’d be out of a job,” Hager said.
The judge immediately turned to city attorneys and asked why the city would agree to those two provisions.
Deputy City Attorney Heidi Brown said all camera footage will be available for review after a police action, so it doesn’t seem crucial to allow real-time viewing.
The three-video cap is only for performance evaluations, and doesn’t restrict when supervisors must watch videos to review officer uses of force or for training purposes, according to Brown and Karia.
The judge then turned to the union lawyer: “Why does the union have an interest in no real-time reviews by supervisors. What’s the rationale?”
“It’s simple, sir,” Karia responded. “The body-worn camera is not a panacea to the perceived ills of the Police Bureau.”
Karia argued that supervisors should “get up and go to the scene” and not sit in an office watching a police action unfold on video.
Simon pointed out that in a perfect world, with unlimited resources, that would make sense, “but I don’t think we live in that world.”
Assistant U.S. Attorney R. Jonas Geissler told the judge that allowing supervisors to view live video from a command center would strengthen the bureau’s oversight of an evolving police operation, particularly considering a current shortage of supervisors. They could provide guidance from afar instead of waiting for a post-incident review, he said.
A state arbitrator isn’t expected to hold a hearing until summer on the body camera policies offered by the city and union. The arbitrator then has about two months before choosing one or the other.
City Attorney Robert Taylor told the judge that the city would welcome testimony from the Justice Department lawyers at the arbitration hearing, and Simon said he’d encourage it.
Other key developments:
— The Justice Department signaled it may return to the judge later this year with a proposed amendment to the settlement calling for an independent monitor to oversee the ongoing reforms.
The Rev. Leroy Haynes, a co-chair of the Albina Ministerial Alliance’s Coalition for Justice and Police Reform, urged an independent court monitor be appointed soon. A monitor should work locally, engage the community and have sufficient funding and staff to do the work, he said. “After years of seeing the city of Portland and the Portland Police Bureau often dragging their feet” in implementing the settlement agreement, he said the coalition believes that a court monitor would help the city reach the goals of the settlement.
— The Justice Department lawyers criticized the Police Bureau’s narrow investigation of the “Prayer of the Alt-Knight” slide discovered in a crowd control training presentation.
The offensive slide led Police Chief Chuck Lovell and Mayor Ted Wheeler to suspend the training leader, Sgt. Jeffrey McDaniel, for 10 days without pay after backing away from firing him.
McDaniel denied that he put the offensive slide into the PowerPoint training presentation but acknowledged he supervised the bureau’s Rapid Response Team training at the time.
Geissler, one of the Justice Department lawyers, said police should have evaluated the rest of the training presentation, which included slides that referenced out-of-date law and perpetrated a portrayal of an “us vs. them mentality” for crowd control tactics.
Brown, the chief deputy city attorney, defended the unpaid suspension, calling it a “significant sanction.”
She said the police investigation found that the slide referencing inaccurate case law was included to make officers aware “not to follow it,” she said. “That was not presented as, ‘This is the law.’ “
The judge interrupted, “I don’t recall the caption on that slide clearly indicating that,” and city attorneys conceded Simon recalled that accurately.
The judge asked if anyone else objected to the “Prayer of the Alt-Knight” slide, which was presented in a statewide training in 2018.
Brown said police internal affairs reached out to those who attended, but only two people outside the Police Bureau responded. “Nobody saw the slide. It was up there for such a short period of time,” she said.
Community member Beatrix Li, of the Mental Health Alliance, however, told the judge that the offensive slide mirrored how officers used unwarranted force against protesters in 2020 during the city’s mass protests after the death of George Floyd, a Black man killed by Minneapolis police.
Cmdr. Craig Dobson, who presented the state crowd control training in 2018, told investigators he immediately took the Alt-Knight slide down when he saw it, and then confronted McDaniel afterwards, asking why it was put in the presentation. McDaniel said it was for humor, according to Dobson. An investigation is continuing into why Dobson didn’t make a complaint to internal affairs about the inappropriate slide. Dobson is now commander of Central Precinct.
— The city is close to hiring a new civilian dean of police training, also a step ordered by the Justice Department.
A prior selection was abruptly withdrawn by the city. The chief has conducted a final interview.
In the next month or two, the city would like the finalist to attend a community town hall to answer questions, Brown said. Community activists have argued that the process has lacked sufficient public input.
The mayor did not attend the hearing, but his community safety liaison Stephanie Howard attended with the police chief, deputy police chief and city auditor. Former city commissioner Jo Ann Hardesty and Sgt. Aaron Schmautz, president of the Portland Police Association, also was among those present. Wheeler had a full schedule, working out of City Hall Tuesday, a spokesperson said.
“We appreciated the discussion at today’s hearing. We’re proud of the progress that has been made since the last status conference,” Wheeler said in a statement. “.We stand ready to collaborate with the DOJ, the Amici (friends of the court), and the community on the work ahead.”
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