City Attorneys Basically Dare Federal Judge to Reject Police Reform Deal over Procedural Imbroglio

From the Portland Mercury, June 27, 2014

With just days before US District Judge Michael Simon gets ready to decide the fate of police reform in Portland, attorneys for the city and the Portland Police Association have submitted lengthy legal defenses of their attempt to push the case through without giving Simon precisely what he wants: annual courtroom updates from the city, the union, and the federal Department of Justice.

As the Mercury first reported this week, all three parties have suggested sending in the city’s still-unhired reforms monitor instead. And as Simon considers that offer—he could agree to the change, he could insist on convening updates as he sees fit, or he could reject the deal altogether and go to trial—both the city (pdf) and the police union (pdf) decided warn him what might happen if they don’t get their way.

Insisting on annual updates with everyone involved could be grounds for an appeal—tying up the effective date of the reforms even longer than it’s already waited (it’s been almost two years since the DOJ accused the city and its police officers of engaging in a pattern or practice of using excessive force against people perceived to be mentally ill).

Moreover, they wrote, proceeding to trial would all but certainly hand the city a victory in the case and threaten to undo almost all of the reforms that have already been put into place. Because so much time has passed, the city wrote, an all-new investigation would likely need to be started. And even that may falter, the city writes.

Moreover, from a pleading standpoint, the United States would be confronted with a Hobson’s choice: rely on a complaint and investigation that is now almost two years old or conduct a new investigation. Plaintiff faces legal risk under either approach. The City has already implemented much of the substantive relief provided for by the Settlement Agreement. This aggressive implementation has furthered the public interest and the City’s policy goals in achieving reforms without delay. But these positive developments would make it even more difficult for the United States to identify and prove currently existing violations via a new investigation and would likely significantly reduce the scope of available relief if they attempt to prove older violations. A new investigation would require at least the same expenditure of resources as did the initial investigation.

The city also explained in the most detail we’ve seen yet why it doesn’t want to send its attorneys back to court. It’s worried the informational hearings Simon’s looking to convene—attempts to learn about reforms and potential issues so they can be corrected—will become “adversarial.” It’s also arguing that the hearings somehow won’t be transparent, by relying on lawyers and cutting out the city council and the reform monitor, otherwise known as the “compliance officer/community liaison” or “COCL”.

The City’s objection to extensive ongoing court proceedings has always been that ultimate accountability for ensuring the terms of the Settlement Agreement are implemented rests with the City’s elected representatives. As the Court has acknowledged, it does not have the ability to require any party to do anything in response to information it would receive at these proceedings. The City and the COCL would be significantly burdened in having to review, investigate, and respond to materials generated by and for an adversarial court proceeding. Moreover, by allowing the parties and enhanced amicus to make direct presentations to the Court, the elected officials and the Community Oversight and Advisory Board would be cut out of an important feedback loop. The parties’ presentations would be directed at the performance of various City bureaus, and only the City has the authority and responsibility for managing those bureaus. Whatever benefit the Court might gain by allowing the parties and enhanced amicus to make presentations is significantly outweighed by the damage to public accountability that would result from the inability of the Court and the City’s elected officials to meaningfully respond.

Interestingly, the Department of Justice—despite still endorsing the notion of sending in the COCL, to avoid appeals—wrote its own legal brief (pdf)laying out an alternative path for Simon to get what he wants.

Because Simon will retain jurisdiction over the settlement agreement even after dismissing it, with prejudice, the case will remain on his docket. And any judge, the feds argue, is free to order status conference hearings on the cases on his or her docket whenever she or he wants.

Courts do not distinguish between the inherent power to manage a case on active versus inactive dockets. Even when a case is on a judge’s inactive docket, the matter is still within the court’s jurisdiction and subject to the exercise of the court’s inherent power.

Simon will close the book on arguments after July 2. And a decision may appear at any point after.