‘Broken promises’ at Fairness Hearing

fedcourtjpg-b79072e75a265771The Portland Mercury, Feb. 19, 2014

It was billed as a signature piece of a proposed legal settlement meant to answer federal accusations that Portland police officers engage “in a pattern or practice” of using excessive force against people in mental-health crisis.

READOur spoken testimony at the Fairness Hearing

READOur written testimony submitted to Judge Simon

Working with the state and county—who control mental health funding in Oregon—the city would establish treatment facilities where people in crisis could either be dropped off by police officers or check in voluntarily. The city was so bullish, back when the provision was negotiated by ex-Mayor Sam Adams in 2012, city officials thought they might open the centers by summer 2013.

But on Tuesday, February 18, those officials and US Department of Justice attorneys offered an admission that advocates have long fretted over. It was during an hours-long “fairness hearing”—a key step before US District Court Judge Michael Simon either approves or rejects the settlement.

Not only are those treatment centers not even close to opening, but they might never open at all.Despite the centers’ promise of providing treatment and hopefully minimizing contact between cops and people in crisis, the call to build them is merely “aspirational,” according to a presentation aired in court by the feds.

“This agreement has no influence on those services,” said Chris Bouneff, director of the National Alliance on Mental Illness Oregon.

The US Department of Justice had called Bouneff as a friendly witness. The state and county, he said, “are not at the table and there’s nothing to compel them to be at the table to increase the type of services necessary. That element will be missing in this agreement.”

Jonas Geissler, an attorney for the US Department of Justice’s civil rights division in Washington, DC, hammered that point earlier in the hearing.

“Those agencies may be beyond the current reach of this” proposed legal settlement, Geissler said.

That admission came early in Tuesday’s watershed court session—the first chance for the public to sound off about a deal many think should go further, and the most substantive chance yet for the city and the feds to defend the particulars they negotiated specifically to avoid a court trial.

Simon, the judge, says he’ll decide if he likes it as early as mid-March.

That deal—which eventually gained the assent of the Portland Police Association—includes changes to how police are trained and use force. It gave way to the creation of a special mental health unit. It’s also fueled changes in oversight that have long been criticized for failing to empower civilians.

But Jason Renaud of the Mental Health Association of Portland reacted dourly to the clarification about the treatment centers during a break in the proceedings. He invoked the names of Keaton Otis, Aaron Campbell, and James Chasse Jr.—all struggling with mental-health issues, all killed by Portland police during the past decade.

“What they needed was a safe sanctuary. I’m not sure training and policy would have made a difference,” Renaud says. “Those facilities would make a brick-and-mortar difference. ‘Aspirational’ is a broken promise.”

Ellen Osoinach, a deputy city attorney who helped negotiate the deal, told the court during the city’s presentation that the hazy commitment to building those facilities was intentional.

“Rather than obligate the city to run a mental-health facility,” she said, “the city accepted a requirement to work in cooperation with other government agencies.”

And as the city sees it, it’s lived up to its commitment, Osoinach said. For the past few years, the council has including a call for increased mental-health funding in its state and federal legislative lobbying wish lists.

“The city has followed through on that commitment by lobbying aggressively for increased funding for mental-health services for the past three years,” she told the court.

It was maybe the most surprising development to emerge from the long-promised hearing, the likely fault lines of which had been clear for months.

As expected, watchdog groups—including the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMA) and Portland Copwatch—clamored for more robust civilian oversight. Copwatch urged the judge to alter the deal before approving it—something Simon says he’s not allowed to do. He can only say yes or no, if he decides what’s presented is “fair, adequate, and reasonable.”

The AMA said it supported the deal, but with reservations. Its members had hoped the feds would do away with a 48-hour window, enshrined in union agreements, that lets cops put off giving statements after using deadly force.

“We see the positive aspects as an opportunity to set a floor, not a ceiling. Not the end,” AMA President T. Allen Bethel told the courtroom. “This agreement must be monitored so that the city and the Portland Police Bureau can be held accountable by a higher and more powerful group than the city itself or the [police] association or the bureau.”

And groups representing black Portlanders—most notably the National Association for the Advancement of Colored People, but also the Urban League of Portland and the AMA—reiterated their long-held disappointment the agreement sidestepped the concern that led the AMA to seek a federal investigation in the first place: racial profiling. They were dismayed by testimony from a police consultant who said the feds looked at those claims, but set them aside because of a lack of data.

In all, Simon invited more than 60 people and organizations to testify. The hearing was expected to go on so long that Simon offered to stay until the dinner hour, and move some testimony to the following day.

Realistically, getting the mental-health facilities built has always been a long shot. The agreement instructed the city to work with Coordinated Care Organizations (CCOs)—new health-care providers set up to manage federal health-care reform and help dispense Medicaid.

Working with the CCOs would help the city tap into that federal cash. Two meetings were held in 2012, late in Mayor Adams’ term, to get the CCOs on board. But the groups said they had to get their feet beneath them. Little has changed more than a year later.

The police bureau still wants a drop-off center—but figuring out who will fund and manage it, and what services it might offer, has been difficult. Traditionally, mental-health treatment is the purview of the county.

Captain Mike Marshman, the police bureau’s police reform czar, admits it’s been easier to work on the parts of the deal the bureau controls.

“Those discussions are going on” with the state and county, he says. “It’s a slow, slow process.”

Renaud started working with Mayor Charlie Hales‘ office on the idea last January. He was part of a task force that included county officials and Hales’ former public safety director, Baruti Artharee.

By November 2013, Renaud was ready to pitch Hales’ office for budget help. He said a 22-employee walk-in center would cost a little more than $2 million to start up and run for a year. The center was not included in the city’s most recent budget documents.

“There’s lots of money,” Renaud says. “It’s just being spent on other things. What happens the next time someone dies?”