Federal judge says he’s ‘inclined’ to set trial on Justice Department findings

Since a take-no-prisoners inquiry by the U.S. Department of Justice, which found Portland police were engaged in a “pattern or practice” of excessive force against people with mental illness, the City of Portland’s draft settlement agreement has still not been approved in federal court. Justice officials, the Portland police union and the Albina Ministerial Alliance Coalition for Peace and Justice were court-ordered into arbitration almost half a year ago, and all they’ve managed is an impasse. What’s the holdup? The Portland Police Association, which maintains that our safety and our lives are subject to collective bargaining.


The PPA has never accepted outside judgement of a police use-of-force case, its president even defending the shocking brutality of James Chasse’s death. The Justice Department’s findings were beyond dispute, its conclusions beyond debate. Judge Michael Simon says he is inclined to hold a trial next summer to determine whether the indisputable has merit in his court.  It is hard to avoid the impression that our value as persons is being horse-traded.


For the judge to validate the PPA, he would have to buy into an alternate reality, where police did NOT use deadly force 12 times in a two-year period, and 10 of those were NOT people with mental health issues.  Here in this world, that’s exactly what the DOJ says it was: a pattern or practice where we are the targets.


We’ve made our position clear: Zero tolerance.  A cease-fire. Nothing less. Now, again, our lives hang in the judicial balance.  We are not terribly optimistic.



By Maxine Bernstein, The Oregonian, July 18, 2013
A federal judge Thursday said he’s inclined to hold a trial next summer to determine if Portland police engaged in a pattern of excessive force against people with mental illness, if the city, police union and federal investigators can’t reach agreement on a package of reforms.

U.S. District Judge Michael H. Simon did not set a trial date but gave federal justice officials, the city and the police union time to file legal briefs this fall on several issues leading up to trial, such as whether the Portland Police Association should be allowed to defend against the U.S. Department of Justice’s excessive force claims at trial.

Simon urged each party to the case not to lose sight of the seriousness of the federal complaint filed earlier this year against the city that alleges constitutional violations by Portland police.

“I want an early trial date because I do want to move this to conclusion,” Simon said. “There will be a trial on the merits.”

Upon learning of the judge’s position after the hearing Thursday, Mayor Charlie Hales, who serves as police commissioner, said he wasn’t expecting such a delay in resolving the federal justice complaint.

“Summer? Really?” Hales said. “Oy vey.”


Simon’s direction came after the city, police union and federal prosecutors declared in June that they had reached an impasse, unable to come to an agreement during mediation on reforms that should be made by the police bureau to address a scathing federal inquiry.

The nearly 15-month inquiry by the U.S. Department of Justice found last year that Portland police engaged in a pattern or practice of excessive force against people suffering from or perceived to have a mental illness.

A settlement agreement between federal investigators and the city, approved by the City Council on Nov. 14, called for widespread changes to Portland police policies on use of force, Tasers, training, supervision, discipline and oversight. It also called for a restructuring of police crisis intervention training and quicker internal inquiries into alleged police misconduct.

Simon said Thursday that he does not believe he has judicial authority to order the city to adopt reforms that may conflict with the police union’s contract, unless he has ruled on the merits of the U.S. Department of Justice’s complaint and finds that the city police did engage in a pattern of excessive force.

“It seems we have to make a judicial determination whether there is or there’s not liability,” Simon said Thursday.

He cited a 9th U.S. Circuit Court of Appeals ruling in April 2002 – which the Portland police union had raised. That ruling found the Los Angeles Police Protective League’s rights to negotiate the terms and conditions of its officers employment gave the union an interest in a consent decree between the city of Los Angeles and the federal government.

Anil S. Karia, attorney for the Portland Police Association, said the union is supportive of moving ahead to trial and would request the right to intervene as a defendant, allowing the union to defend against the federal justice complaint.

Assistant U.S. Attorney Adrian L. Brown, along with U.S. Department of Justice civil rights attorney Jonas Geissler who participated in Thursday’s hearing via speaker phone from Washington, D.C., said the federal government would object to the union being allowed to defend against the federal excessive force allegations against the city.

“This is not a case against individual members of the police union,” Brown said. “We’ve always seen this as a case against the city.”

Karia acknowledged in court that if the judge found that city police had engaged in excessive force, then the judge would have the power to order the city to adopt reforms, even if they conflicted with the union’s contract.

Oral arguments on whether the union will be able to defend against the excessive force complaints, and any other issues that may arise, is set for Dec. 3.

Deputy City Attorney Ellen Osoinach asked the judge not to set a trial date yet, noting that the city is currently in negotiations with the police union on a new contract that could resolve some of the areas of disagreement. She estimated that the negotiations could last, at the most, another six months.

When the judge asked the city attorney if the city would defend against the federal justice claims of excessive force at a trial, Osoinach replied, “It’s too soon to tell.”

The Portland Police Association contract expired June 30, but its provisions remain in place until a new contract is ratified, the union attorney said.

The police union has argued that changes to police policies, training and oversight underminded the collective bargaining rights of its members. In particular, the union has argued that changes to the bureau’s use of force policy, disciplinary procedures and working conditions needed to be the subject of mandatory bargaining.

Judge Simon earlier this year allowed the police union only to formally intervene in the crafting of reforms.

The federal prosecutor also cautioned against setting a trial date just yet. She said federal justice officials did not anticipate that the settlement agreement would be pending while the union and city of Portland are in contract talks.

“We continue to hold out hope that we’ll get this resolved, without trial,” Brown said after the hearing. “We understand we can’t wait forever.”

Jason Renaud, of the Mental Health Association of Portland, said Thursday he was dismayed by the time it is taking to get a settlement adopted and reforms in place. “Justice delayed is justice denied,” Renaud said.

In other developments, the city, federal officials and the Albina Ministerial Alliance were able to reach an agreement through mediation on concerns the community group had regarding the pending police reform process.

Under the agreement, the alliance’s Coalition for Justice and Police Reform will have a role in selecting the proposed “Compliance Officer Community Liaison” and members of the “Community Oversight Advisory Board,” two of the key police oversight roles under the pending settlement. It also requires the city to provide public notice in advance of all meeting times and locations of the Police Bureau’s new Training Advisory Council, the future Community Oversight Advisory Board and the existing Citizen Review Committee and Community/Police Relations Committee.

The agreement goes before Portland City Council on Wednesday.

“The collaborative agreement preserves the AMA Coalition’s role as a zealous advocate for true police reform and ensures the community that the AMA Coalition will be a continuing presence for oversight and accountability in Portland,” the coalition said in a prepared release.

–Maxine Bernstein

Update at 3:43 p.m.: Mayor Charlie Hales issued this statement:

“I am pleased the court provided such clear guidance to all parties regarding next steps in the City’s and U.S. Department of Justice’s draft Settlement Agreement. Both the Justice Department and the public are expecting us to change practices in our Police Bureau. We are doing so, and will continue to do so, because they are the right things to do. I believe that, by setting a potential trial date a year in the future, the court is expressing trust in our continued focus and action. The result will be the same whether commitments are codified in a Settlement Agreement or in City Policy: we will demonstrate continuous commitment to civil rights in the Portland Police Bureau.”